On February 26, 2019, in Nutraceutical Corp. v. Lambert, the Supreme Court of the United States held that Federal Rule of Civil Procedure 23(f)’s 14-day deadline to request permission to appeal a district court’s order regarding class certification cannot be equitably tolled. The Supreme Court’s opinion left open the possibility that the 14-day deadline under Rule 23(f) can begin to run after the disposition of a timely motion for reconsideration, because that reconsideration order itself may be an order granting or denying class certification. Read more on the Food & Ag Law Insights blog.

Product Liability Monitor

December 4, 2017
New Developments
Missouri Adopts Daubert: What It Means in Product Liability Cases
By Theresa Mullineaux

In March 2017, Missouri Governor Eric Greitens signed House Bill 153, which amended Mo. Rev. Stat. § 490.065, and effectively adopted Daubert standards for Missouri cases, effective in August 2017. As a result, Missouri now follows similar standards to those applied in Federal courts and the majority of other state courts for expert evidence.[1] HB 153 establishes a four factor standard: [Continue Reading]

Defending Depositions
By Alan Hoffman

A previous post discussed preparing witnesses for their depositions. After a witness has been prepared for deposition it is the lawyer’s job to protect the witness, the client, and the record—a task that has many challenges, perils and pitfalls, but particularly so in products cases which often involve complicated design, risk-benefit, “safety” and warnings issues. Here are some suggestions for product lawyers and witnesses. [Continue Reading]

The Ninth Circuit versus CAFA’s Removal Provisions in Products Liability Litigation
By Soham Desai

The 2005 Class Action Fairness Act created federal jurisdiction based on minimum diversity for certain class and mass actions in an effort to preclude artfully maneuvering to defeat diversity jurisdiction. Actions with at least 100 plaintiffs, minimal diversity between the parties, and an amount in controversy exceeding $5 million dollars may be removed to federal court. In response, plaintiffs’ attorneys began subdividing their cases into groups of less than 100 plaintiffs in order to avoid removal under CAFA. [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
November 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

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

Earlier this week the Supreme Court issued its decision in Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146, affirming the Eight Circuit’s decision to not disturb a jury verdict against Tyson where the district court permitted the jury to draw an inference of class-wide liability based on representative or statistical evidence. Continue Reading Tyson Decision Delivers Narrow Lessons for, But No Knockout to, Class Actions

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?

A recent case out of the Northern District of California, Lanovz v. Twinings North America, Inc., highlights the evolving landscape that litigants are facing in class certification under Federal Rule of Civil Procedure Rule 23, including courts subjecting plaintiffs’ damages models to a more rigorous analysis. Continue Reading Twinings: Steeping Class Action Plaintiffs’ Damages Models in Comcast’s Wake

Corporate clients defending class action lawsuits in state courts within the Eighth Circuit should take note of the recent decision Atwell v. Bos. Scientific Corp., 740 F.3d 1160 (8th Cir., 2013)One portion of the Class Action Fairness Act of 2005 allows for removal of “mass actions” from state court to federal court, often thought to be a more favorable venue for defendants in many instances. Continue Reading For Whom the Bellwether Tolls: The Eighth Circuit Holds an Exemplar Trial May Qualify as a Civil Action to be ‘Tried Jointly’ Under CAFA

The long awaited decision by the Fifth Circuit regarding the NLRB’s D.R. Horton case issued this week in which the Court bypassed a number of jurisdictional issues and went straight to the heart of the matter.  In sum, the Court found that the Board’s finding that a class action waiver in conjunction with a mandatory arbitration provision regarding employment claims was not, per se, a violation of the National Labor Relations Act.  Continue Reading NLRB’S D.R. Horton Decision Shot Down…Mostly