Product Liability Monitor

April 10, 2017
New Developments
I Like It, But Do I Trust It? Drivers Weigh In on Autonomous Vehicle Technology
By Shannon PetersThe American Automobile Association (AAA) recently released the results of a survey of American drivers which yielded an interesting conclusion:  Americans want autonomous vehicle (AV) technologies in their next vehicle, but they are not sold on fully self-driving cars.The AAA survey indicates that 75 percent of Americans would be afraid to ride in a self-driving vehicle, and more than half would feel less safe sharing the roads with a self-driving car. Not surprisingly, younger generations are slightly less afraid of this developing technology than their older counterparts. [Continue Reading]
Walking the Lone Pine Trail
By Alan HoffmanLone Pine orders take their name from Lore v. Lone Pine Corp. They are most often entered in toxic tort litigation, requiring plaintiffs to provide some prima facie evidence to support causation or other claims based on expert opinion. Typically, such orders call for expert affidavits or other evidence supporting a claimed connection between the plaintiff’s condition and defendants’ products. [Continue Reading]
Due Process Limits on Personal Jurisdiction
By Dan JaffeIn recent years the United States Supreme Court has strengthened the due process protections for defendants against suits in states with which they have no meaningful contacts. In J. McIntyre Machinery, Ltd. v. NiCastro, the plaintiff sued the British manufacturer of a metal-shearing machine in New Jersey, where he was injured. The defendant neither marketed nor sold its products in that State. It sold its machines nationwide through an independent U.S. distributor, but defendant’s representatives were never present in New Jersey. In any event, no more than four of its machines ended up in New Jersey. The Court held that exercise of judicial power over a defendant is unlawful unless the defendant purposefully avails itself of the privilege of conducting activities within the forum State. [Continue Reading]
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Technology, Manufacturing & Transportation
Product Liability PracticeManufacturers work hard to develop material goods and product designs that are high-quality, safe and durable. We understand your commitment to excellence and commit ourselves to defending you against product liability allegations. Husch Blackwell’s Product Liability team has insight into your industry-specific challenges. [More information]
Product Liability Monitor Archive
March 2017


brockhoert_leslie cockerham_stephenMore and more it seems disputes are occurring over what information the EEOC may subpoena from employers. On April 3, 2017, the U.S. Supreme Court issued its ruling in McLane Co. v. EEOC, weighing in on the standard of review on appeal when district courts either enforce or quash an EEOC subpoena.

Before discussing the case, let’s first address how we get to an appeal of such an issue:

Continue Reading EEOC Subpoenas—The Supreme Court Weighs In on the Standard of Review

Patent InfringementIn a 7-1 decision Tuesday, the U.S. Supreme Court ruled that laches cannot be a defense in many patent infringement cases. The Federal Circuit previously ruled that laches, which bar suits after unreasonable delays, prevented SCA Hygiene Products AB from suing their competitor First Quality Baby Products LLC. Tuesday’s Supreme Court ruling in SCA Hygiene Products v. First Quality Baby Products rejects this, noting that since Congress has imposed a six-year limitation on damages in patent cases, laches cannot be used to shorten that period. The ruling is available to read here.

For more information, read our legal alert or contact Rudy Telscher or Sam Digirolamo.



Product Liability Monitor

July 8, 2016
New Developments
Federal Preemption of Pesticide Failure to Warn Claims
By Alan Hoffman

In 2005, the United States Supreme Court decided Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005), concerning preemption of state law failure to warn claims by the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §136 et seq.  (“FIFRA”) [Continue Reading]

Driverless Cars and the Law – The Tesla Accidents
By Eric B. Krauss

Last month’s Product Liability Monitor post, “Driverless Cars and the Law,” asked, “What happens when a driverless car is involved in an accident?” How will courts react when a serious, even fatal, accident occurs? These questions became more immediate when a Tesla Model S, driven by its owner, Joshua Brown – ironically, an advocate of Tesla’s “Autopilot” feature–was involved in a fatal crash while operating in Autopilot mode. [Continue Reading]

Expert Witness Testimony in New York
By Dan Jaffe

New York’s highest court, the Court of Appeals, recently affirmed lower courts’ orders excluding the causation testimony of two experts under the Frye Rule. [Continue Reading]

Editor of the Month
Known as a strong trial lawyer and skillful negotiator, Dan JaffeDan Jaffe assertively protects the interests of his business clients in product liability claims and commercial disputes. He persuasively presents the facts and argues the law at the trial and appellate levels. During jury trials, he uses creative approaches in order to effectively communicate burdensome evidence to lay juries, consistently ensuring the best possible outcomes for corporate clients.
Connect with us: Blog | Twitter | LinkedIn
Technology, Manufacturing & Transportation
Product Liability Practice
Manufacturers work hard to develop material goods and product designs that are high-quality, safe and durable. We understand your commitment to excellence and commit ourselves to defending you against product liability allegations. Husch Blackwell’s Product Liability team has insight into your industry-specific challenges. [More information]
Product Liability Monitor Archive
June 2016

Court stepsThe Supreme Court has agreed to hear two cases with substantial repercussions for certain areas of copyright and patent practice.  Star Athletica, LLC v. Varsity Brands, Inc. may have a significant impact on how companies protect products with ornamental designs that are integrated with useful articles.  In the patent arena, SCA Hygiene Products v. First Quality Baby Products, LLC promises to influence patent litigation practices as it concerns whether prejudicial delay (“laches”) may be a defense to legal remedies in patent cases brought within the statute of limitations period.  Amicus briefs on these cases will be due starting in July. Continue Reading Amicus Briefs Due Soon in Supreme Court Copyright and Patent Cases

LegalPillars_106563959Gomez v. Campbell-Ewald Co., 768 F.3d 871 (9th Cir. 2014), cert. granted, 2015 WL 246885 (2015).

This week’s grant of certiorari in Gomez presents the possibility for major changes in the defense of class actions involving relatively small individual damages.

Gomez filed a class action after receiving an unsolicited text message from Campbell, a marketer for the US Navy. Gomez claims the text violates the Telephone Consumer Protection Act (TCPA). Before the District Court could rule on class certification, Campbell offered Gomez full statutory damages ($1,503) plus reasonable costs in an effort to moot the class action. Gomez refused the offer. Both the District Court and the Ninth Circuit held that an unaccepted settlement offer for the full amount of the plaintiff’s damages did not moot either his claim or the class claim.

Continue Reading Is the End in Sight for Consumer Class Actions?

The last year or so has not been a good one for the NLRB.  Time and time again the courts have shot down the Board in a number of matters, including the Board’s notice posting rule, its attempt to modify its own election rules for processing representation petitions, as well as D.R. Horton being denied enforcement and otherwise ignored by every court of appeals which has reviewed the issue. Continue Reading NLRB Recess Appointments Found Unlawful by Supreme Court

In a split decision announced earlier today (Utility Air Regulatory Group v.  Environmental Protection Agency, No. 12-1146, slip op. (June 23, 2014)) the United States Supreme Court ruled the Environmental Protection Agency exceeded its authority in requiring sources of air pollution to comply with the Clean Air Act’s prevention of significant deterioration (PSD) and Title V major source permitting programs solely because of a source’s greenhouse gas emissions.  Further, the Court held that EPA is permitted to include greenhouse gas emissions in determining best available control technology (BACT) for sources that would be subject to PSD on the basis of emissions other than greenhouse gas emissions is a permissible interpretation of the Act.

Continue Reading The Supreme Court Limits EPA’s Authority to Regulate Greenhouse Gases

A  previous blog post discussed the uncertainty that surrounded whether and when federal courts will enforce forum section clauses which are routinely included in technology, manufacturing and transportation commercial agreements.  On December 3, 2013, the Supreme Court issued its opinion in Atlantic Marine Construction Company, Inc. v. U.S. District Court for the Western District of Texas, 571 U.S. __, 2013 WL 6231157 (U.S. Dec. 3, 2013) which substantially clarifies both the procedure and standards for the enforcement of such clauses in federal court.  Continue Reading Valid Forum-Selection Clauses To Be Enforced in Federal Court in “All but the Most Exceptional” Cases

Contractual forum selection clauses—i.e., provisions selecting specific courts for subsequent related litigation—abound in technology, manufacturing, and transportation commercial agreements. Oftentimes, manufacturers, suppliers, vendors, service-providers, and the like designate particular courts to lessen the costs of future litigation, as well as the likelihood of judicial error.  Continue Reading Must a Federal Court Enforce Your Forum Selection Clause?