Legislative & Judicial Updates

Product Liability Monitor

November 2, 2017
New Developments
Mr. Gorsuch Goes to Washington: Is Chevron Endangered?
By Tierra Jones

Since the Supreme Court’s 1984 holding in Chevron USA v. Natural Resources Defense Council (“Chevron”), courts have looked to federal administrative agencies in interpreting regulatory statutes. Under this doctrine, commonly referred to as “Chevron deference,” courts adopt the reasonable interpretation of the relevant federal agency when application of statutory provisions is uncertain and the agency’s interpretation is reasonable. The Supreme Court went further in National Cable & Telecommunications Ass’n, holding that when the Chevron test is satisfied, “an agency’s interpretation should prevail even when a court has adopted a contrary interpretation in the past.” [Continue Reading]

Artificial Intelligence: A New Frontier for Product Liability Claims?
By David Dean

Long considered the domain of science fiction, recent years have seen numerous applications of artificial intelligence begin to enter the mainstream. Apple’s Siri and Amazon’s Alexa have brought artificially intelligent personal assistants into our pockets and our living rooms. Google Translate applies machine learning to language translation, with near-human accuracy. IBM’s Watson is working with medical doctors in New York City to review patient records and recommend cancer treatment options. The first autonomous technology vehicles are already on the road. [Continue Reading]

Preparing for Depositions
By Alan Hoffman

Preparing witnesses for their depositions is an important task in discovery, and particularly so in product liability cases.  Product knowledge and expertise is often scattered, and sometimes reside in former employees. Loaded questions about “safety,” design choices, warnings and directions are often perplexing for witnesses. [Continue Reading]

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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
October 2017

 

gavel courtOn October 17, 2017, the Court of Appeals for the Eastern District of Missouri reversed a $72 million judgment that was previously rendered against Johnson & Johnson, relying on a United States Supreme Court decision that was issued earlier this year. In June, the Supreme Court of the United States narrowed the scope of specific personal jurisdiction in Bristol Myers Squib Co. v. Superior Court of California, San Francisco County, 137 S.Ct. 1773 (2017), holding that that each plaintiff in a multi-plaintiff case must establish personal jurisdiction over the defendant for his or her individual claim. Applying the Supreme Court’s decision, the Court of Appeals reversed the plaintiff’s verdict that was issued in February 2016 in Estate of Fox v. Johnson & Johnson, No. ED104580.  Continue Reading Missouri Appellate Court Reverses Verdict in Johnson & Johnson Talc Case

Product Liability Monitor

October 11, 2017
New Developments
America’s Opioid Epidemic: Who Will Be Held Accountable?
By Ally Schwab

In recent years America has seen an increasing number of opioid-involved deaths and is currently experiencing what the Center for Disease Control (“CDC”) describes as an “opioid epidemic.” This crisis has been devastating to many communities and individuals, and States are feeling the effect, too. State, county and municipal governments have faced mounting costs in battling this crisis, and some are now taking the fight to the manufacturers and distributors of these drugs. [Continue Reading]

Robots are Becoming a Media Phenomenon—And a Legal Phenomenon, Too
By Eric Krauss

The American public cannot get enough of robots. From science fiction to scientific fact, robotic news and entertainment are part of our daily lives. This past year, at least two television series focused on robots set in the near future (“Westworld” on HBO and “Humans” on AMC) have captured viewers’ imagination, and last week the Blade Runner 2049 sequel opened at theaters nationwide. Indeed, the relationship between people and robotics has been a film subject at least since Fritz Lang’s silent film Metropolis in 1927.  Its continuing popularity reflects our love-hate relationship with automation. [Continue Reading]

Heed the Heeding Presumption
By Alan Hoffman

One of the legacies of the Restatement of Torts, Second, Section 402A published in 1965, is the so-called “heeding presumption.” Section 402A’s Comment j afforded product sellers a presumption that an adequate warning, when given, would be heeded to avoid the risk: “Where a warning is given, the seller may reasonably assume that it will be read and heeded.” However, courts soon began inverting Comment j to create a presumption favoring plaintiffs; i.e., that since they would have heeded an adequate warning, they need not show that the absence of an “adequate” warning caused their injury. Effectively, the heeding presumption shifts the burden to the seller to disprove causation. [Continue Reading]

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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
September 2017

Product Liability Monitor

September 8, 2017
New Developments
The SELF DRIVE Act Motors Through Congress
By Mark Pratzel

On September 6, 2017 the House of Representatives unanimously passed H.R. 3388, also known as the “Safely Ensuring Lives Future Deployment and Research in Vehicle Evolution Act,” also known as the “SELF DRIVE Act.” The broad, bipartisan support for this legislation seems to reflect a rare Congressional consensus favoring national standards for autonomous vehicle (AV) technology. [Continue Reading]

FAA Preemption: The Continuing Sikkelee Saga
By Alan Hoffman

Last April, in a case closely followed by the aviation industry, the Third Circuit reversed a District Court order granting summary judgment to Textron Lycoming in a fatal Cessna 172 accident case on the ground that the plaintiffs’ design defect claims were preempted by the Federal Aviation Act. The Third Circuit held that the District Court erred in applying field preemption to plaintiff’s tort design defect claims, and remanded the case for further proceedings. [Continue Reading]

Standing as a Defense in Class Action Products Cases
By Jonathan Schmalfeld

It is a basic legal principle that, for party to have standing to bring a case, that party must have suffered (or in some instances be under the immediate threat to suffer) some actual harm. This is commonly referred to as the injury-in-fact requirement. This requirement is particularly important in cases where class certification is sought. [Continue Reading]

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
July 2017

 

websiteNew legislation passed by the House of Representatives on July 14 contains language that would allow the Pentagon and federal agencies to buy directly from commercially run online marketplaces such as Amazon, OfficeMax, Home Depot and other e-commerce retailers. The bill, H.R. 2810, is the National Defense Authorization Act for Fiscal Year 2018. It passed in the House 344 to 81. The Defense Acquisition Streamlining and Transparency Act, later merged into the Defense Authorization Act, was designed to reduce bureaucracy and costs for the government. The Washington Post recently stated that House Armed Services Committee Chairman Mac Thornberry (R-Tex.) sponsored the bill, saying ““Everybody understands what a difference Amazon has made…we’re trying to help DoD keep up with the changes in business practices with the goal of getting items faster, cheaper and keeping up with the changes in technology.”

Continue Reading House Passes Bill Allowing Government Agencies to Purchase Goods Online: A Major Development for E-Commerce

jury box court roomArticle I Section 22 of the Missouri Constitution holds that litigants have a right to trial by a fair and impartial jury of twelve qualified jurors. A qualified juror has been defined as one who is “in a position to enter the jury box disinterested and with an open mind, free from bias or prejudice.” Catlett v. Ill. Cent. Gulf R.R. 793 S.W.2d 351, 353 (Mo. Banc 1990).  The Missouri Supreme Court held earlier this month in Thaddeus Thomas et. al v. Mercy Hospitals East Communities, et. al, No. SC96034 that “The trial court is in the best position to evaluate a potential juror and is afforded broad discretion in determining whether the potential juror is ultimately qualified to serve.” The Court provided wide discretion to the trial judge’s ruling regarding the impartiality of a prospective juror.

Continue Reading Juror Impartiality: The Equivocal Juror

White HouseToday, President Trump officially signed H.R. 3364, the “Countering America’s Adversaries Through Sanctions Act” (CAATSA) into law. CAATSA originated as a bill which was focused on only Iran. However, partially in response to Russian cyber-interference with the 2016 election, the Senate expanded CAATSA to impose additional sanctions against Russia and also codify into law various sanctions imposed by the Obama Administration in the form of Executive Orders. The House of Representatives then approved these additions and added further sanctions against North Korea. Eventually, the House and Senate approved the final version of CAATSA by a margin of 419-3 and 98-2, respectively. For additional detail on CAATSA’s legislative history, please see our previous alerts here, here and here.

Continue Reading President Signs Russian, Iran and North Korea Sanctions Legislation into Law

White HouseLast night, Thursday, July 27, the U.S. Senate voted to pass the “Countering America’s Adversaries Through Sanctions Act” by a vote of 98-2. The House of Representatives passed the bill on Tuesday after adding in new sanctions against North Korea. Among other things, the legislation would impose additional sanctions against Russia and restrict President Trump’s ability to withdraw or relax previous Russian sanctions imposed by the Obama Administration.  To learn more about the bill, please see our July 26th post. The Senate created the bill back in June, where it also passed 98-2, before sending it to the House. Despite reports that the addition of North Korea would result in a delay from the Senate, the Senate passed it just over 48 hours after the House.

Continue Reading Senate Sends Russian Sanctions Bill to the President

Congress ChamberYesterday, July 25th, the U.S. House of Representatives passed the “Countering America’s Adversaries Through Sanctions Act” by a vote of 419-3. The bill originated as an act in the Senate which was focused on Iran. In response to Russian meddling in the U.S. election, the Senate expanded that bill to include additional sanctions against Russia, codify various Russia-Ukraine sanctions promulgated by the Obama Administration into law and add procedural provisions to delay or prevent any efforts by the Trump Administration to relax those codified Obama Administration sanctions. The Senate passed their revised version of this legislation last month by a vote of 98-2. For more information on the Senate’s earlier approval, please see our post on June 16th.

Continue Reading Congress Passes Russian Sanctions Bill with New Sanctions on Russia, Iran and North Korea

Product Liability Monitor

July 14, 2017
New Developments
Rats! Eco-Friendly Soy-Based Insulation Could Spell Trouble Down the Road
By Sarah Rashid

A new “eco-friendly” biodegradable material used to insulate wiring in newer cars could make for trouble — and lawsuits — down the road for car manufacturers. This insulation is made from soybeans, making it more environmentally friendly and cheaper for car manufacturers. But it has a downside: it serves as an attractive, tasty treat for rats, mice, squirrel, rabbits, and other rodents. [Continue Reading]

The Benefits And Risks Of Autonomous Vehicles
By Leslie Gutierrez

On June 15, 2017, Texas Governor Greg Abbott signed a bill that will allow autonomous vehicles (AVs) to operate on the state’s roads. Texas is now one of 17 states (Alabama, Arkansas, California, Colorado, Florida, Georgia, Louisiana, Michigan, New York, Nevada, North Dakota, South Carolina, Tennessee, Utah, Virginia, Vermont, plus Washington D.C.) that have passed legislation related to AVs. Governors in Arizona, Massachusetts, Washington and Wisconsin have also issued executive orders related to AVs. Wisconsin Governor Scott Walker has formed a committee to determine AV best practices, and Washington Governor Jay Inslee formed a similar interagency work group. [Continue Reading]

Speak, Corporation!
By Alan Hoffman

Mitt Romney famously told a heckler during his Presidential campaign, “Corporations are people, my friend.” While corporations are not people, they and other organizations surely are legal persons capable of suing and being sued. But how to take the deposition of a corporation or organization which can only speak through employees or representatives? [Continue Reading]

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 2017