Finally Fed Up with Private Plaintiffs Litigating over Empty Space, California Amends Slack Fill Law

Guest Commentary

By Robert S. Niemann, a Partner with Keller and Heckman LLP in the firm’s San Francisco, CA office, and Jill M. Mahoney, an Associate in the firm’s Washington, DC office.

Editor’s note: This blog is an update to the February 2, 2018 WLF Legal Backgrounder, “Litigating over Empty Space: Public and Private Plaintiffs Target Consumer Class Actions at “Slack Fill.”

Defendants of would-be “slack fill”1 lawsuits may have found some reprieve from litigation in California. On September 19, 2018, California Governor Jerry Brown signed into law Assembly Bill 2632, which amends the state’s slack fill law2 to provide manufacturers facing nonfunctional slack fill allegations with additional safe harbors. While specious slack fill lawsuits have been on the rise in recent years, the amendment is a step forward for the food manufacturing industry and demonstrates that California, the home to many slack fill suits,3 may also be growing tired of such claims. Continue reading “Finally Fed Up with Private Plaintiffs Litigating over Empty Space, California Amends Slack Fill Law”

Federal District Court Excludes Dubious “Scientific” Opinions in Mirena MDL

Featured Expert Contributor, Judicial Gatekeeping of Expert Evidence

 

Evan M. Tager, a Partner in the Washington, DC office of Mayer Brown LLP, with Jonathan S. Klein, an Associate with the firm.

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Although courts don’t always apply Daubert with the rigor that is warranted, when they do, it is worth noting.  Such is the case with federal district court Judge Paul Engelmayer’s thorough and scholarly decision excluding the opinions of all the plaintiffs’ general-causation experts in an MDL involving Bayer’s Mirena IUD device, In re Mirena Ius Levonorgestrel-related Products. Liability Litigation (No. II).   Continue reading “Federal District Court Excludes Dubious “Scientific” Opinions in Mirena MDL”

Divided Virginia Supreme Court Decision Epitomizes National Split over “Take Home” Asbestos Liability

Featured Expert Contributor, Mass Torts—Asbestos

RobertWrightRobert H. Wright, a Partner with Horvitz & Levy LLP in Los Angeles, CA

Plaintiffs have pushed for a rule that would hold employers liable for so-called “take home” asbestos exposures, arguing that companies that used asbestos in the workplace owe a duty not only to protect their own employees from direct exposures, but also to protect anyone who later comes into contact with those employees.

This theory of liability has been rejected in almost two-thirds of the jurisdictions to consider the issue.  Fifteen states—including Arizona earlier this year—have decided defendants owe no duty of care to those claiming take-home exposure (Arizona, Georgia, Illinois, Iowa, Kansas, Kentucky, Maine, Maryland, Michigan, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, Texas).  In contrast, until recently, only eight states recognized some form of such a duty (Alabama, California, Delaware, Indiana, Louisiana, New Jersey, Tennessee, Washington).

Earlier this month, the Supreme Court of Virginia was confronted with the question of take-home liability in Quisenberry v. Huntington Ingalls Inc., No. 171494, 2018 WL 4925349 (Va. Oct. 11, 2018).  Continue reading “Divided Virginia Supreme Court Decision Epitomizes National Split over “Take Home” Asbestos Liability”

Litigation Funding Slides Downmarket

Featured Expert Contributor, Litigation Strategies

Joe_Hollingsworth_thumbnail 1McMinn_Donald_MainJoe G. Hollingsworth, Partner, Hollingsworth LLP, with Donald R. McMinn, a Partner with the firm.

 

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Through their investments in a lawyer’s case(s), litigation funders have fomented economically shaky litigation while making that litigation’s resolution more difficult by disguising the settlement decision maker.  Now litigation funders are entering a new market—one composed of the plaintiffs themselves, rather than their attorneys.  Their new approach is, quite possibly, worse than their initial one.

Web-based platforms speak of creating an ostensible “peer-to-peer” approach by which even individuals can invest in the lawsuits of others.  The platforms allow would-be funders to pick and choose lawsuits in which to invest and then direct the investment straight to plaintiffs, not their lawyers.  Plaintiffs trade their receipt of funds now in return for agreeing to repay the lender out of any recovery. Continue reading “Litigation Funding Slides Downmarket”

New Jersey: Now the Product-Liability Defendant’s Playground?

Featured Expert Contributor, Litigation Strategies

Joe_Hollingsworth_thumbnail 1By Joe G. Hollingsworth, Partner, Hollingsworth LLP, with Robert E. Johnston, Partner, Hollingsworth LLP.

Atlantic City, New Jersey—often called A.C. or America’s Playground—has the bright lights and casinos of Las Vegas set on the southern Jersey shore.  We confess that we have tried our luck rolling the bones at the Borgata on occasion, but our defense-side colleagues rolled a “natural” just last month in the New Jersey Supreme Court.

On August 1, 2018, New Jersey became the latest state to adopt (in civil cases) the principles governing the admissibility of scientific opinion evidence articulated by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) – a win made even sweeter because it comes in the In re Accutane Litigation Mass Tort litigation, which has been churning (outrageously) in A.C. for more than a decade.  In re Accutane Litigation, (A-25-17) (079958) slip op. (N.J. August 1, 2018) (“Accutane”).  The New Jersey Supreme Court’s decision is a full-throated endorsement of the trial judge’s gatekeeper role and offers the hope that defendants litigating scientific cases in New Jersey may find the courts more hospitable.   The Accutane decision also may represent a turning point in the erosion of the gatekeeping function that has occurred over the twenty-five years since Daubert was first handed down. Continue reading “New Jersey: Now the Product-Liability Defendant’s Playground?”

Court Calls Second Strike on Municipalities’ Climate-Change Legal Crusade with Ruling Against New York City

Big AppleBy Holton Westbrook, a 2018 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering his third year at Texas Tech University School of Law in the fall.

New York City recently suffered the latest loss in municipalities’ legal fight against climate change when the U.S. District Court for the Southern District of New York threw out the city’s attempt to hold BP, Chevron, ExxonMobil, and other oil companies liable for injuries allegedly caused by carbon emissions. The Big Apple has signaled its intention to appeal its loss to the U.S. Court of Appeals for the Second Circuit, but the trial court’s reasoning is well within the mainstream of judicial thinking on the issues at stake, and its ruling should be upheld. Continue reading “Court Calls Second Strike on Municipalities’ Climate-Change Legal Crusade with Ruling Against New York City”

Update: Federal District Court Rejects Minority View on Pharma “Innovator Liability”

pillsIn a recent post, West Virginia’s High Court Rejects Novel Theory of “Innovator Liability”, WLF Senior Litigation Counsel Cory Andrews discussed a state court decision that declined liability on a pharmaceutical manufacturer for alleged harms caused by a drug it did not produce. In doing so, the West Virginia Supreme Court of Appeals parted company with the highest courts of two other states, California and Massachusetts, which earlier this year embraced the minority view that plaintiffs can recover damages from so-called branded pharmaceutical companies for harms allegedly caused by the generic copy of the the brand-name drug.

On May 21, a U.S. District Court for the District of Massachusetts judge overseeing a multidistrict litigation, In re: Zofran (Ondansetron) Products Liability Litigation, followed the majority view of innovator liability and dismissed three claims filed by plaintiffs who had only ingested the generic version of Zofran. Continue reading “Update: Federal District Court Rejects Minority View on Pharma “Innovator Liability””