BSCR Firm News/Blogs Feed Jan 2022 00:00:00 -0800firmwise in Review: A Midwest-Focused Review of 2021 Product Liability Cases Jan 2022Product Liability Law Blog<p>With the world resuming much of its activity post-COVID-19 legal shutdowns, 2021 was an active one on the legal docket. Below, we highlight some key national product liability cases, along with top product liability Midwest cases (with a focus on Missouri, Illinois, and Kansas) decided in 2021. While not an exhaustive list, the aim is to provide you an overview of what the year held.</p> <p><b><u>Supreme Court and Other Major Cases </u></b></p> <p><b>1.&nbsp;&nbsp;</b><b>Specific Personal Jurisdiction is Expanded. </b></p> <p>Courts around the country have held that a defendant is not subject to specific personal jurisdiction unless the claims arose out of contact with the forum state. However, the United States Supreme Court recently ruled that the law does not require solely a causal link but allows jurisdiction when the claims relate to the defendant&rsquo;s contacts within the forum. In <em>Ford Motor Co. v. Montana Eighth Judicial District Court, et al. and Ford Motor Co. v. Bandemer</em>, the plaintiffs brought product liability claims against Ford in the states where the auto accidents occurred and the plaintiffs resided - Montana and Minnesota respectively.&nbsp;However, the vehicles at issue were not originally sold by Ford in Montana or Minnesota.&nbsp;The cars were designed in Michigan, manufactured in Kentucky and Canada, and first sold in Washington and North Dakota.&nbsp;The cars arrived in the forum states through the actions of third-parties. The Court noted the significant advertisements used by Ford to urge residents of Montana and Minnesota to buy its products, including the same type of vehicles involved in the accidents.&nbsp;Similarly, the number of authorized Ford dealers in the states, and Ford sending replacement parts to those dealerships and independent repair shops throughout the forums demonstrated Ford had purposefully availed itself of benefits of doing business there.&nbsp;&nbsp;<a href=";an=115705&amp;format=xml&amp;stylesheet=blog&amp;p=5258">Link to Product Liability Law Blog post (March 31, 2021).</a></p> <p><b>2.&nbsp;&nbsp;</b><b>Oklahoma Supreme Court Overturns J&amp;J&rsquo;s $465 Million Opioid Judgment.</b></p> <p>In November, the Oklahoma Supreme Court overturned a $465 million opioid verdict against Johnson &amp; Johnson, entered by Judge Thad Balkman in the District Court of Cleveland County of the State of Oklahoma (<i>Oklahoma ex rel. Hunter v.&nbsp;Purdue Pharma LP&nbsp;et al</i>.). Specifically, the Court found that the trial court&rsquo;s decision rested on an improper expansion of state law concerning what a &ldquo;public nuisance&rdquo; is under Oklahoma law.&nbsp;The Court noted that it was deferring the policy-making to the legislative and executive branches and that the district court engaged in an unprecedented expansion of public nuisance law; thus, the district court erred in finding J&amp;J's conduct created a public nuisance. This opinion may foreshadow the outcome of cases pending across the nation in which companies have been accused of causing and/or contributing to the opioid crisis.</p> <p><b>3.&nbsp;&nbsp;</b><b>State Governments Win In Ohio As Other Opioid Litigation Losses Continue.</b></p> <p>An Ohio jury returned a verdict against pharmacy chains CVS, Walgreens and Walmart, finding them liable for creating a public nuisance in two counties by filling massive numbers of opioid prescriptions and contributing to the national opioid addiction crisis. This was the first win against only pharmacies, not including any drugmakers or distributors. The verdict came after back-to-back losses for local governments suing drug manufacturers over their involvement in the crisis. As discussed, above, in November, the Oklahoma Supreme Court overturned a $465 million judgment against Johnson &amp; Johnson.&nbsp;In California, Orange County Superior Court Judge Peter J. Wilson opined there was not sufficient evidence to tie a rise in opioid prescriptions to misleading marketing, therefore finding drugmakers had not created a public nuisance. The impact of the use of the public nuisance suit against drug manufacturers and distributors has yet to play out entirely.</p> <p><b>4.&nbsp;&nbsp;</b><b>GlaxoSmithKline Released from Zofran MDL.</b></p> <p>A Massachusetts U.S. District Judge ruled that over 400 state law claims consolidated in a federal Multi District Litigation proceeding, alleging GlaxoSmithKline failed to warn consumers that its anti-nausea drug Zofran causes birth defects, were preempted by federal law, because the FDA has authority over warnings to consumers, and the agency declined to add a warning for pregnant women.&nbsp;Indeed, the FDA rejected adding the requested warning label for pregnant women, even though it was aware that Zofran had been prescribed off-label to pregnant women for years. This was the first bellwether case in the MDL. This ruling by the Judge was consistent with the U.S. Supreme Court&rsquo;s ruling in <i>Merck v. Albrecht</i>, which held that the judge and not juries should analyze and apply the FDA&rsquo;s regulations on warning labels; thus, opening the door for this Judge to make the call on preemption.&nbsp;The Judge ruled that the FDA clearly had all information to make a decision as to whether to require an additional warning to pregnant women, and determined that a label change was not warranted. &nbsp;Thus, the FDA rejected the pregnancy-warning label that the plaintiffs insisted was required by state law at the time of the alleged injuries. The case is <i>In re: Zofran (Ondansetron) Products Liability Litigation</i>.</p> <p><b>5.&nbsp;&nbsp;</b><b>Roundup Delivered Multiple Setbacks.</b></p> <p>In May, the Ninth Circuit upheld a $25 million judgment against Bayer AG, making this Bayer&rsquo;s second unsuccessful Roundup appeal.&nbsp;This judgment was obtained by plaintiffs in the first bellwether trial (<i>Edwin Hardeman v. Monsanto Co.</i>) in multidistrict litigation over claims the company's weedkiller causes cancer. The Court held that plaintiff's failure-to-warn claims are not blocked or preempted by federal law under the Federal Insecticide, Fungicide and Rodenticide Act because the laws have parallel requirements. In order to avoid misbranding violations, federal law requires that a pesticide label must include a warning &quot;adequate to protect health and environment.&rdquo;&nbsp;California common law holds that manufacturers must warn about known risks or risks about which a &quot;reasonably prudent&quot; manufacturer would know. Also in May, in <i>In re: Roundup Products Liability Litigation</i>, a California federal judge rejected a proposed $2 billion settlement meant to cover claims brought in the future over Roundup, finding that it was &quot;clearly unreasonable&quot; for a group of Roundup users who have not yet developed non-Hodgkin's lymphoma to be bound by the same. In November, the California Supreme Court denied Monsanto&rsquo;s request to overturn an $87 million verdict awarded to the Pilliods who claim the Bayer AG subsidiaries weedkiller, Roundup, caused their cancer.&nbsp;In 2019, jurors originally awarded $2 billion in damages after determining that Roundup was more likely than not a contributing factor that caused the couple to develop Non-Hodgkin&rsquo;s lymphoma. The award was later reduced and Bayer AG appealed the decision, but was shot down by a California appellate court for making arguments that carried little resemblance to the trial record. This denial by the California high court let stand what was the third loss Bayer saw in trial over the Roundup product.</p> <p><b>6.&nbsp;&nbsp;</b><b>Flint Water Settlement Approved.</b></p> <p>In November, a Michigan federal judge gave final approval to the proposed settlement for the <i>In Re: Flint Water Cases</i>.&nbsp;The settlement, which was approved at $626 million, will be paid to over 100,000 people affected by the contaminated water in Flint, Michigan.&nbsp;The Sixth Circuit recently affirmed a lower Court&rsquo;s decision not to allow state court plaintiffs to intervene in the federal court settlement.</p> <p><b>7.&nbsp;&nbsp;</b><b>Boeing Pays Up to Settle Conspiracy Claims Over The Max 8.</b></p> <p>In January, Boeing agreed to pay more than $2.5 billion to settle a conspiracy claim brought by the Department of Justice accusing them of hiding information from the FAA about the safety of the 737 Max 8 airplanes.&nbsp;The planes were involved in two separate crashes, which claimed the lives of 346 people.&nbsp;In November, Boeing agreed to a settlement of the claims asserted in the<i> In re: Ethiopian Airlines Flight ET 302 Crash</i> matter, pending in the Northern District of Illinois.</p> <p><b>8.&nbsp;&nbsp;</b><b>Southern District of Texas Delivers One-Two-Three Punch.</b></p> <p>In <i>Johnson v. Novartis</i>, the plaintiff asserted claims of strict liability, negligence, fraud and warranty as well as violation of the Texas Deceptive Practices Act after claiming he contracted Peyronie&rsquo;s disease from the ingestion of a combination of two generic drugs. The<i> Johnson</i> court disposed of the multiple actions, ultimately treating the entire case as an alleged failure to warn products case.&nbsp;First, the two brand name defendants moved to dismiss the plaintiff&rsquo;s claims, which relied on innovator liability.&nbsp;In other words, this is when a plaintiff brings a claim against a brand name manufacturer for injuries caused by a generic drug. The Fifth Circuit upheld the district court&rsquo;s dismissal of the brand name manufacturers, agreeing that Texas law does not support the contention that brand name manufacturers owe a duty to consumers of generic drugs. Second, the court held that the plaintiff&rsquo;s state law claims against the generic manufacturers were preempted by federal law based on the Supreme Court&rsquo;s decision in <i>PLIVA, Inc. v. Mensing</i>, 564 U.S. 604 (2011) The district court followed both Supreme Court and Fifth Circuit precedent in holding that plaintiff&rsquo;s claims against the generic manufacturers based on failure to warn of the possible risk were preempted. Third, the Court rejected plaintiff&rsquo;s argument that the generic manufacturers had frauded the FDA. Texas law presumes no liability for FDA approved labels unless the plaintiff is able to show one of five rebuttals, including &ldquo;Fraud on the FDA&rdquo;. In<i> Johnson</i>, the plaintiff alleged the defendant&rsquo;s withheld information from the FDA related to the connection between the drugs and his disease. Finally, the Court refused to allow the plaintiff leave to amend his complaint, reasoning justice did not require leave to amend. All of plaintiff&rsquo;s claims were dismissed with prejudice.</p> <p><b>9.&nbsp;&nbsp;</b><b>Florida Jury Returns $43M Tobacco verdict against Philip Morris.</b></p> <p>In <i>Lipp v. R.J. Reynolds et. al</i>, Philip Morris was found responsible for 85% of the harm caused to Norma Lipp who died of lung cancer in November 1993. The jury found that the legal cause of Lipp&rsquo;s death was addiction to nicotine cigarettes caused by her reliance on statements made by Philip Morris and concealment of information during its promotion of tobacco.</p> <p><b><u>Missouri, Kansas, and Illinois: </u></b></p> <p><b>10.&nbsp;&nbsp;</b><b>Eighth Circuit Breathes New Life into Bair Hugger MDL.</b></p> <p>The 8th Circuit Court of Appeals reversed a decision by the district court that had excluded the testimony of plaintiff&rsquo;s expert witnesses and granted summary judgment to 3M. Plaintiffs in the MDL (<em>In re Bair Hugger Forced Air Warming Devices Products Liability Litigation</em>) claimed that 3M&rsquo;s surgical warming device is defective and caused bacteria to contaminate the sterile operating room, leading to infection. The MDL Court had excluded plaintiff&rsquo;s experts, opining their opinions to be unreliable because there was too great of an analytical gap between the literature presented and the experts general causation opinion. <a href=";an=118965&amp;format=xml&amp;stylesheet=blog&amp;p=5258">Link to Product Liability Law Blog post (September 28, 2021).</a> There is another 3M MDL (<em>In re: 3M Combat Arms Earplug Products Liability Litigation</em>) being tried in other jurisdictions that, as of the middle of December, has delivered ten trials in the 3M litigation, with tied results: five defense wins and five multimillion-dollar plaintiff verdicts.&nbsp;Those claims involve veterans alleging their hearing was damages by CAEv2 earplugs made by Aearo Technologies LLC, a company acquired by 3M.</p> <p><b>11.&nbsp;&nbsp;</b><b>Pre-Judgment Interest in Illinois.</b></p> <p>Illinois governor J.B. Pritzker signed into law SB0072, which amends the Civil Code of Procedure to allow plaintiffs to collect pre-judgment interest on certain damages awarded in Illinois personal injury and wrongful death cases. Prejudgment interest will accrue at a rate of 6% annually, and it will begin to accrue when the lawsuit is filed, not when the company receives notice of the injury. The act excludes the running of interest on punitive damages, sanctions, statutory attorney&rsquo;s fees, and statutory costs. The act removed a provision that had been included in the earlier bill that allowed judges to divert a section of the funds to any state agency or department. The act also allows defendants potentially facing prejudgment interest an option to mitigate the size of a potential interest award by receiving a credit for certain settlement offers.&nbsp;<i>See</i> <a href="">735 ILCS 5/2-1303(c)</a>.</p> <p><b>12.&nbsp;&nbsp;</b><b>The Supreme Court Refuses to Hear J&amp;J&rsquo;s Talc Appeal from Missouri Case.</b></p> <p>In June of 2021, the Supreme Court refused to hear Johnson &amp; Johnson&rsquo;s appeal in a talc case decided in Missouri state court (<i>Johnson et al. v. Gail L. Ingham et al.</i>) $2.1 billion was awarded to about two dozen women who claimed there was asbestos in J&amp;J&rsquo;s talcum powder, which caused their ovarian cancer. The Missouri Supreme Court had previously also refused to review the matter after a Missouri appeals court took off about $2.6 billion from the verdict (the jurors originally awarded a combined $550 million and $4.14 billion in compensatory and punitive damages).&nbsp;J&amp;J had argued that consolidating the claims from the women was highly prejudicial and violated its due process rights, and that the Missouri trial court lacked personal jurisdiction over the plaintiffs, who did not live in Missouri and had not shown that they purchased or used the products in Missouri.</p> <p><b>13.&nbsp;&nbsp;</b><b>Inadequate Voluntary Dismissal Results in Dismissal with Prejudice.</b></p> <p>In <i>Graham v. Mentor Worldwide LLC</i>, 998 F.3d 800 (8th Cir. 2021), plaintiff sued the manufacturer of breast implants, a Class III PMA medical device, in state court, due to the rupture of one of her implants following a car accident. The plaintiff also joined as defendants the vehicle driver and the hospital in which the implantation surgery occurred. The manufacturer defendant removed the case to federal court on diversity grounds, claiming fraudulent joinder and fraudulent misjoinder &ndash; i.e., that there were no colorable claims that could be asserted against the latter two defendants, and that as residents of the same state as Plaintiff, they were added to the case solely in an attempt to defeat removal to federal court on diversity grounds. The 8th Circuit held that the hospital was fraudulently joined because there was no possible basis for strict liability against the hospital in Missouri. The Court also ruled that the auto accident claim had nothing to do with the products liability claim so the accident claim was severed and remanded to state court. Here, however, the case took an unusual turn. The Court had denied a dismissal of Plaintiff&rsquo;s claims based on an allegation by Plaintiff that she had the breast implants done as part of a clinical trial approved by the FDA. The defendant countered this by introducing records that the plaintiff was lying and immediately threatened Rule 11 sanctions. Plaintiff responded by moving to dismiss her action voluntarily without prejudice under Fed. R. Civ. P. 41(a). The Court denied this motion and dismissed the action with prejudice, ruling that Plaintiff failed to provide justification for wanting to dismiss without prejudice.&nbsp;The Court stated that the failure to provide an adequate purpose for dismissal without prejudice reflected an inappropriate purpose of finding a more favorable forum or to escape an undesirable outcome.</p> <p><b>14.&nbsp;&nbsp;</b><b>EpiPen Settlement Produces $115M for Consumer Counsel.</b></p> <p>In November, a Kansas federal judge gave final approval to the $345 million settlement of class action litigation claims against pharmaceutical company Pfizer, in <i>In re: EpiPen Marketing, Sales Practices and Antitrust Litigation</i>. &nbsp;$115 million of that settlement was designated for the plaintiff class counsel, with seven law firms splitting the $115 million.&nbsp;The class claims against Pfizer included claims of racketeering and state antitrust violations against EpiPen manufacturer Pfizer and EpiPen seller Mylan, after the price point of the EpiPen increased to $600 in 2016 from the $100 it had been in years prior. Mylan still faces certain claims by the class to be tried in front of a jury soon.</p> <p><b>15.&nbsp;&nbsp;</b><b>Illinois Officer Awarded $7.5M for Failure to Warn by Ammo Makers.</b></p> <p>In <i>Hakim v. Safariland LLC et al., </i>an Illinois SWAT officer was awarded $7.5 in damages, based on a finding that defense gear manufacturer Safariland LLC failed to warn consumers their TKO breaching rounds must be shot at metal to operate safely. The SWAT officer David Hakim was injured during a training accident when another officer shot a round of exploding ammunition at a piece of wood and the bullet traveled through the door and became lodged in Hakim&rsquo;s spine. Hakim still serves as a SWAT officer but deals with back pain from the incident. However, that judgment is now being challenged by the Ammo Makers, who are seeking to void or reduce the judgment.</p> <p><b>16.&nbsp;&nbsp;</b><b>Illinois State Court Jury Sides With J&amp;J In Talc Powder Jury Trial.</b></p> <p>The jury, in <i>Cadagin v. Johnson &amp; Johnson et al</i>., determined that the death of Elizabeth Driscoll from ovarian cancer was not caused by her use of Johnson &amp; Johnson&rsquo;s (&ldquo;J&amp;J&rdquo;) baby powder. Colleen Cadagin, who brought the claim on behalf of her aunt, claimed her aunt had used the powder regularly and habitually throughout her adolescence and that J&amp;J was aware that its baby powder was defective and dangerous for perineal use. Cadagin claimed J&amp;J knew the powder contained carcinogenic components such as asbestos, chromium, nickel, cobalt, and arsenic. However, the jury sided with J&amp;J.</p> <p><b>17.&nbsp;&nbsp;</b><b>Seventh Circuit Grants Paint Makers Reversal of $6M Verdict.</b></p> <p>The 7th Circuit reversed a $6M verdict against The Sherwin Williams Co. and two other paint makers, undoing a decision finding them liable for brain damage caused by their lead-based paint. The three-judge panel found that the trial court erroneously went beyond the scope of a previous Wisconsin Supreme Court case, <i>Thomas v. Mallett</i>, which held the makers of lead paint could only be held liable in cases in their capacity as makers of the pigment containing lead, not as makers of the paint. Of the three companies, only one of them was both a pigment and paint manufacturer at all relevant times. The district court further erred in ruling the plaintiffs had to prove their injuries were caused by the companies&rsquo; failure to warn, but then ruling post-trial that they did not have to provide such proof.</p> <p><b>18.&nbsp;&nbsp;</b><b>Actavis Drug Did Not Cause Man&rsquo;s Heart Attack. </b></p> <p>An Illinois federal jury (<i>Martin v. Actavis et al.</i>) sided with Actavis Inc. on all counts of a lawsuit brought by a man who claimed the company&rsquo;s testosterone replacement drug caused his heart attack and sought nearly $80M in damages. The claims included strict liability for failure to warn, negligence, and fraudulent misrepresentation. The Court determined that the man failed to prove the drug Androderm directly caused his heart attack. Plaintiff and his attorneys asked the jury to require Actavis to reimbursed Martin for nearly $80,000 in medical bills and additional $1.5 million for past and future medical expenses and $2 million for past and future emotional distress. Plaintiff&rsquo;s trial was set to be the first bellwether trial against Actavis over cardiovascular problems allegedly caused by its TRT drug, before the company reached a settlement in the multi-defendant MDL in 2018. Plaintiff opted out of that deal.</p> <p>As you can see, the legal docket was a busy one in 2021 &ndash; delivering a mixed bag of results for plaintiffs and defendants in various product liability settings.&nbsp;2022 is sure to deliver even more interesting and impactful results.&nbsp;We will be watching.&nbsp;</p> Circuit breathes new life into In Re Bair Hugger Products Liability MDL Sep 2021Product Liability Law Blog<p>On August 16, 2021, the Eighth Circuit Court of Appeals reversed a <a href="">District Court decision</a> striking class action plaintiffs&rsquo; experts and granting summary judgment to 3M Company in the <i>In re Bair Hugger Forced Air Warming Devices Products Liability Litigation. </i>This case is part of Multi-district Litigation (MDL) proceedings, consisting of nearly 6,000 lawsuits, pending in the District of Minnesota.&nbsp;The MDL court, following similar rulings by the trial court in the first bellwether case, excluded Plaintiffs&rsquo; general-causation medical experts as well as one of their engineering experts, and granted 3M summary judgment as to all of plaintiffs&rsquo; claims.</p> <p>Plaintiffs in the MDL have brought claims against 3M asserting that they contracted periprosthetic joint infections due to the use of 3M&rsquo;s Bair Hugger.&nbsp;The Bair Hugger is a convective, or forced-air, patient-warming device intended to stave off hypothermia related complications that can arise during or after surgery.&nbsp;The device consists of a central heating unit, a hose, and a disposable perforated blanket that is placed over the patient.&nbsp;The central unit draws in air through a filter, warms the air, and blows it out through the hose into the perforated blanket.&nbsp;&nbsp;</p> <p>MDL plaintiffs proffer two theories of causation: first, waste heat from the device creates currents that carry bacteria from nonsterile areas of the operating room to the surgical site (&ldquo;the airflow theory&rdquo;); or second, the device is internally contaminated and projects bacteria through the blanket into the operating room (&ldquo;the contaminated product theory&rdquo;).&nbsp;</p> <p>The MDL court excluded plaintiffs&rsquo; engineering expert on the grounds his opinion relied upon modeling developed for litigation and was unproven and untested in real-world operating rooms.</p> <p>Plaintiffs&rsquo; engineering expert created a computational-fluid-dynamics (&ldquo;CFD&rdquo;) model to support the airflow theory that was eventually published in a peer-reviewed journal, and which the MDL court found to be reliable based upon the underlying physics. &nbsp;Nonetheless, the MDL court excluded plaintiffs&rsquo; engineer because his conclusion &ldquo;relies on an unproven and untested premise&rdquo; in actual practice, and the CFD model was developed for litigation, raising &ldquo;concerns about its reliability and objectivity.&rdquo;&nbsp;The Eighth Circuit disagreed, ruling that when a &ldquo;hired gun&rdquo; expert&rsquo;s work has been peer reviewed and published, and the developed-for-litigation concern is the only basis for excluding an expert, lingering questions of reliability and objectivity go to the weight of the evidence, rather than its admissibility.&nbsp;<i>DiCarlo v. Keller Ladders, Inc.</i>, 211 F.3d 465, 468 (8th Cir. 2000).&nbsp;The Eighth Circuit found it was an abuse of discretion to wholly exclude the engineer&rsquo;s testimony.</p> <p>Plaintiffs&rsquo; medical causation experts asserted causation based upon the CFD model and an observational epidemiological study, which disclaimed establishing a causal connection, finding that patients warmed by the Bair Hugger were four times more likely to contract an infection.</p> <p>The MDL court excluded plaintiffs&rsquo; medical experts, finding their opinions unreliable because there was &ldquo;too great an analytical gap between the literature and the experts&rsquo; general causation opinion.&rdquo; &nbsp;&nbsp;The MDL court deemed it unreliable for the medical experts to draw an inference of causation from a study that disclaimed proving causation.&nbsp;The Eighth Circuit rejected that it is <i>per se </i>unreliable for an expert to draw an inference of causation from a study disclaiming having proved causation, if the expert does the work to bridge the gap between association and causation.&nbsp;The Eighth Circuit found that plaintiffs&rsquo; experts also relied on studies and reports showing plausible mechanisms for forced-air warming to cause infections.&nbsp;As such, the District Court should not have wholly excluded the experts as the disclaimer of causation from the epidemiological study went to the weight of the opinions rather than render them unreliable and inadmissible.</p> <p>The MDL court&rsquo;s grant of summary judgment to 3M was derivative of its order excluding Plaintiffs&rsquo; experts, and thus was reversed by the Eighth Circuit.</p> <p><b>What does this mean for your company?</b></p> <p>While the Eighth Circuit&rsquo;s decision seems to be a boon to plaintiffs, who have the burden of proving their case, companies defending products liability cases can create a strategic advantage by retaining the right counsel and experts.&nbsp;If you, like 3M, are defending products liability litigation, you want to retain experts who can effectively bridge the gap between theory and the real world.&nbsp;</p> Expansion: Specific Personal Jurisdiction Just Got Broader Mar 2021Product Liability Law Blog<p>Courts around the country have held a defendant is not subject to specific personal jurisdiction in a forum unless the claims asserted arose out of the defendant&rsquo;s contacts with the forum. In product liability cases, typically unless the product arrived in the forum through the defendant&rsquo;s actions, the courts found no specific personal jurisdiction existed.&nbsp; However, the United States Supreme Court has broadened the scope of contacts sufficient for a court to exercise personal jurisdiction over a defendant.&nbsp; In doing so, it has weakened a powerful defense.&nbsp;</p> <p>There are two types of personal jurisdiction&mdash;general and specific.&nbsp; Where general personal jurisdiction applies, a court may hear any claims against a defendant, even those unrelated to the forum.&nbsp; Barring an exceptional case, corporations are subject to general personal jurisdiction in any state in which they are incorporated or their principal place of business is located.&nbsp; Specific personal jurisdiction is more limited.&nbsp; A court may only exercise specific personal jurisdiction if the claims brought arise out of or relate to a defendant&rsquo;s contacts with the forum.&nbsp; The new decision focuses on specific personal jurisdiction.&nbsp;</p> <p>In two related cases - <i>Ford Motor Co. v. Montana Eighth Judicial District Court, et al.</i> and <i>Ford Motor Co. v. Bandemer</i> -the plaintiffs brought product liability claims against Ford arising from auto accidents that occurred in Montana and Minnesota respectively.&nbsp; The plaintiffs were residents of those states.&nbsp; However, the vehicles at issue were not originally sold by Ford in Montana or Minnesota.&nbsp; The cars were designed in Michigan, manufactured in Kentucky and Canada, and first sold in Washington and North Dakota.&nbsp; The cars arrived in the forum states through the actions of third-parties.</p> <p>Ford argued the states lacked personal jurisdiction over it because Ford did not first sell the vehicles in the forums.&nbsp; Ford claimed there must be a causal link between the contacts and the claims. The plaintiffs asserted that Ford&rsquo;s vast connections with the states, including dealerships, advertising and repair shops, provided a sufficient connection to the forums establishing that Ford purposefully availed itself of the privilege of conducting business there.</p> <p>In a majority <a href=" ">opinion</a> authored by Justice Kagan, the Supreme Court rejected Ford&rsquo;s causal link argument.&nbsp; The Court held the case law did not require solely a causal link but also allowed jurisdiction when the claims &ldquo;relate to the defendant&rsquo;s contacts with the forum.&rdquo; The Court noted the significant advertisements used by Ford to urge residents of Montana and Minnesota to buy its products, including the same type of vehicles at issue.&nbsp; Similarly, the number of authorized dealers in the states along with Ford sending replacement parts to those dealerships and independent repair shops throughout the forums demonstrated Ford had purposefully availed itself of benefits of doing business there.&nbsp;</p> <p>Justices Alito, Gorsuch and Thomas concurred in the judgment with Justice Barrett taking no part in the consideration or decision of the case.&nbsp; Justice Gorsuch, joined by Justice Thomas, lamented the majority opinion&rsquo;s failure to provide adequate guidance to lower courts regarding what amount of contacts would support a forum exercising personal jurisdiction over a defendant, and a lack of clarity as to whether <i>any </i>causal link is necessary.&nbsp;</p> <p>Justice Gorsuch further questions why national corporations would not be subject to personal jurisdiction in every state in which they do business.&nbsp; He notes &ldquo;the Constitution has always allowed suits against <i>individuals</i> on any issues in any State where they set foot.&rdquo;&nbsp; <i>Id</i>. n.5.&nbsp; He posits, why should corporations receive more jurisdictional protections than individuals?</p> <p>So, how will this decision impact cases?&nbsp; First, the decision reaffirms that a nonresident plaintiff may only file suit in a forum in which there is a connection to the claims asserted.&nbsp; The majority suggests that had plaintiffs tried to file suit in some other state unrelated to the incident or the vehicles in question, personal jurisdiction would be improper.&nbsp; This reaffirmation should continue to help limit forum shopping by plaintiffs.&nbsp; However, nonresident plaintiffs may still file suit in a corporation&rsquo;s home states where it is subject to general personal jurisdiction.</p> <p>Second, regional companies would still be protected from suits in other jurisdictions in which they do not conduct their businesses.&nbsp; However, the decision will likely expand the scope of permissible jurisdictional discovery allowed by trial courts particularly in those states where plaintiff bears the burden of proving personal jurisdiction exists.</p> <p>Third, national companies may essentially be subject to personal jurisdiction in any state in which a resident plaintiff is injured.&nbsp; However, it is unclear from the opinions what limitations, if any, exist.&nbsp; For example, if a manufacturer sells its products through a national retailer, does this fact mean the manufacturer is subject to personal jurisdiction everywhere the national retailer is?&nbsp; Would the exercise of personal jurisdiction depend on how the product gets to the retailer&mdash;i.e. does the manufacturer send the product to a third-party distributor who then sends it to the individual stores or does the manufacturer deliver the products to the stores directly?&nbsp;</p> <p>Similarly, how much advertisement is sufficient? Will it matter if the advertisement is directed to the state or nation as a whole&mdash;such as television commercials or billboards&mdash;or if it is narrowly tailored to a specific type of audience such as sponsorship signs on team uniforms, at a ballpark, or in a trade magazine?&nbsp; What if the advertising is purchased in a national magazine rather than a local newspaper?&nbsp;</p> <p>Finally, there was no guidance issued for e-commerce sales.&nbsp; Will a single sale to a forum be sufficient? Is it a number of sales or the percentage of the overall business&rsquo;s sales that are relevant? Will a critical factor be whether the website accessed was the manufacturer&rsquo;s or a third-party&rsquo;s?</p> Unfortunately, the opinion leaves these questions to be sorted out in future cases with little guidance to the lower courts.&nbsp; As a result, this will not be the last time we hear from the Supreme Court on personal jurisdiction.&nbsp;&nbsp; surrounding an earlier sale of equipment is relevant to a later purchaser's claim for punitive damages in a product liability action Jan 2021Product Liability Law Blog<p>Missouri manufacturers, distributors, sellers, and resellers of equipment have scored an important victory in the Missouri Court of Appeals. In <i>Ormsby v. Central Mine Equipment Co</i>, the Missouri Court of Appeals, Southern District, affirmed admission of evidence regarding the design, manufacture, and first sale of a commercial drilling rig as relevant to the defense of a strict liability claim arising from a subsequent sale when punitive damages are claimed.&nbsp;</p> <p>Generally, a plaintiff can recover under a strict product liability claim if he can prove the product was inherently defective when sold and that the defect in the product caused the injury or damage, regardless of whether the defendant did everything possible to prevent the defect.&nbsp;In <i>Ormsby</i>, the Plaintiff sought to preclude evidence of the initial design, manufacture, and sale of a commercial drilling rig as irrelevant to whether the rig had an inherent defect when the second sale occurred.&nbsp;The trial court admitted the evidence as relevant to the defense, primarily because Plaintiff sought punitive damages on the strict liability claim.&nbsp;</p> <p>Plaintiff lost fingers and mangled his hand after reaching into a running drill rig. The incident occurred, and the underlying lawsuit arose, after a subsequent second sale of the mining drill by the CME.</p> <p>Central Mine Equipment Company (&ldquo;CME&rdquo;) built and sold a commercial drilling rig to the U.S. Army Corp of Engineers in 1976.&nbsp;CME built the drill to design specifications provided by the Corps, and the Corps inspected and accepted the drilling rig pursuant to the Corps&rsquo; quality-assurance procedures.&nbsp;After using the drill for 25 years, the Corps traded the drilling rig back to CME for a credit on a replacement. &nbsp;CME then sold it to Plaintiff&rsquo;s employer, who inspected, purchased and relocated the pre-owned unit in 2001, without CME ever seeing, inspecting, or taking possession of the used unit.</p> <p>In 2013, Plaintiff and a helper picked up the drill rig from a mechanic who had repaired the rig&rsquo;s throttle cable.&nbsp;After starting the engine to check the mechanic&rsquo;s work, Plaintiff could not shut the rig off.&nbsp;Plaintiff reached into the motor compartment in an attempt to maneuver the throttle linkage and governor to idle the engine to a stop.&nbsp;Before Plaintiff&rsquo;s helper could get the motor shut down, Plaintiff caught his hand in the mechanism causing the loss of multiple fingers.&nbsp;</p> <p>Plaintiff filed a lawsuit against CME alleging claims for negligence and strict liability, and requesting a punitive damages award under both theories.&nbsp;On the eve of trial, hoping to preclude evidence regarding design, manufacture and first sale of the drill, Plaintiff dismissed his negligence claim, but did not withdraw his request for punitive damages.&nbsp;Nevertheless, Plaintiff sought to preclude evidence that CME designed the drill pursuant to specifications provided by the Corps, and that the Corps inspected the drill to ensure it passed quality assurance standards before taking possession.</p> <p>Plaintiff sought to preclude the evidence as irrelevant to the litigation, claiming that because strict liability claims do not require proof of knowledge as an element to recovery.&nbsp;But the trial court allowed CME to present evidence of the original design, manufacture, and sale because compliance with an industry standard evidences that a party did not act with a culpable state of mind, which is required to support punitive damages.</p> <p>The Missouri Court of Appeals affirmed the trial court&rsquo;s decision to admit the disputed evidence, finding Plaintiff did not meet his burden in demonstrating the trial court ruled incorrectly.&nbsp;The Court found that so long as punitive damages were alleged, compliance with industry standard and custom goes to prove whether defendant acted with a nonculpable state of mind, hence, to negate an inference of complete indifference and conscious disregard for the safety of others &ndash; proof punitive damages requires.</p> <p>The Court&rsquo;s decision is a positive development for Missouri manufacturers, designers, sellers, and resellers in defending against claims for punitive damages in product liability cases.</p> Appellate Court Reverses Plaintiffs' Verdict in Asbestos Lawsuit Mar 2020Product Liability Law Blog<p>Recently, the Illinois Fourth District Appellate Court issued an <a href="">opinion</a> reversing the Circuit Court of McLean County in an asbestos lawsuit. In <i>Krumwiede v. Tremco, Inc.</i>, the court determined that the plaintiffs failed to establish at trial that the decedent&rsquo;s work with the defendant&rsquo;s products was a substantial factor in the cause of the decedent&rsquo;s illness.&nbsp; This is yet another instance in which the Fourth District has reversed the Circuit Court of McLean County in an asbestos lawsuit.&nbsp; The opinion should give defendants wary of trying an asbestos lawsuit in McLean County optimism about the potential for appellate relief.</p> <p>In <i>Krumwiede</i>, the plaintiffs alleged that the decedent was exposed, in part, through his work with Tremco caulk and tape.&nbsp; The decedent worked as a window glazier from the mid-1950&rsquo;s to the early 1990&rsquo;s.&nbsp; At trial, two of the decedent&rsquo;s former co-workers testified that they and the decedent used Tremco caulk and glaze in their roles as glaziers.&nbsp; The witnesses, however, could not recall seeing dust emanate from the Tremco products or anything on the products&rsquo; packaging indicating that they contained asbestos.&nbsp;</p> <p>Plaintiff&rsquo;s medical expert, Dr. Arthur Frank, testified that a person&rsquo;s cumulative dose to asbestos contributes to the development of mesothelioma.&nbsp; In elaborating on this opinion, Dr. Frank testified that there is no scientific way to determine what exposure to asbestos caused a person&rsquo;s illness, but rather, a person&rsquo;s total exposure is considered the cause of the illness.&nbsp; Dr. Michael Graham, a pathologist, testified for Tremco, opining that there were amosite asbestos fibers found in the decedent&rsquo;s lung tissue, but that those fibers had nothing to do with the decedent&rsquo;s work with Tremco products, as those products only contained chrysotile asbestos fibers.&nbsp; Dr. William Longo also testified for Tremco.&nbsp; He explained that he previously tested the Tremco products and found no detectable asbestos fibers, which was because the products were thermoplastic materials.&nbsp; Dr. Longo admitted, however, that he could not rule out that Tremco products released respirable asbestos fibers.&nbsp; Ultimately, the jury returned a verdict for the plaintiffs.</p> <p>But the appellate court concluded that the plaintiffs failed to establish that the decedent's work with Tremco products was a substantial factor in the cause of his mesothelioma.&nbsp; According to the court, simply working around Tremco products did not establish that the decedent had frequent, regular, and proximate contact with respirable asbestos fibers from the products.&nbsp; The court believed that there was an absence of evidence explaining under what circumstances Tremco's products released respirable asbestos fibers.&nbsp; In other words, just because the products were capable of releasing asbestos fibers did not mean they actually did so when the decedent worked with the products.&nbsp; The court also determined that the plaintiff failed to present evidence showing that Tremco's products released more than a <i>de minimis</i> amount of asbestos fibers when the decedent encountered the products.&nbsp; And while the court found that Dr. Frank's &quot;cumulative exposure&quot; testimony was proper under Illinois law, the court concluded that his testimony did nothing to aid the plaintiffs in meeting the &ldquo;substantial factor&rdquo; test under Illinois law because he did not opine that exposure from Tremco products was a substantial factor in bringing about the decedent's illness.&nbsp;</p> This is a positive development for Illinois defendants in asbestos litigation.&nbsp; Specifically, defendants should consider relying on this opinion to argue that a plaintiff cannot satisfy his or her burden of proving causation simply by establishing that a defendant&rsquo;s products can release asbestos fibers.&nbsp;&nbsp; First District Appellate Court upholds $4.8 million asbestos verdict against John Crane. Feb 2020Product Liability Law Blog<p>Much to the defense bar&rsquo;s dismay, in late 2019, the First District Appellate Court affirmed and upheld a $4.6 million verdict against John Crane Inc. in <i>Daniels v. John Crane, Inc.</i>, 2019 IL App (1st) 190170.</p> <p>In that case, the decedent&rsquo;s estate filed suit, alleging that the decedent developed pleural mesothelioma due to asbestos exposure. The decedent worked as a union pipefitter from 1957 to 1985.&nbsp;Prior to his death, the decedent testified to significant asbestos exposure from valves and gaskets, including gaskets manufactured by John Crane.&nbsp;&nbsp;</p> <p>At trial, plaintiff's expert, Dr. Jerrold Abraham, testified that the decedent's asbestos exposure through his work with John Crane products was a substantial contributing factor in his development of mesothelioma.&nbsp;Dr. Abraham did not quantify the decedent's exposure through John Crane products, and he testified that exposure to all types of asbestos fibers can cause mesothelioma.&nbsp;Moreover, according to Dr. Abraham, while mesothelioma is a dose-response disease &ndash; meaning the more exposure an individual has the more likely they are to contract the disease &ndash; once someone sustains an asbestos-related disease, it does not matter whether they have had a high or low exposure to asbestos.&nbsp;Dr. Abraham conceded that all of the decedent&rsquo;s exposures, including through friable insulation, were substantial contributing factors to the development of his illness.&nbsp;Essentially, Dr. Abraham opined that if the decedent was exposed to asbestos through John Crane products, such exposure was a substantial factor to the development of his illness, regardless of the dose of the exposure or the dose of the decedent&rsquo;s exposures through other sources.</p> <p>Plaintiff also presented William Ewing, a Certified Industrial Hygienist.&nbsp;Ewing testified that the decedent was exposed to asbestos by using picks, chisels, and hammers to remove John Crane packing, and by using brushes and sanders to dislodge or reshape John Crane gaskets.&nbsp;Ewing quantified the duration of the decedent&rsquo;s exposure (1957 to 1985) and his alleged dosage amount (.05 to 1 fibers per cubic centimeter when removing and installing gaskets; .05 to 2 fibers per cubic centimeter when removing packing).&nbsp;</p> <p>At the close of evidence, during the jury instruction conference, the plaintiff presented the standard Illinois Pattern Jury Instruction for proximate causation.&nbsp;John Crane objected and presented its own instruction regarding proximate cause.&nbsp;John Crane argued that the jury instruction should have included language requiring the jury to find that John Crane&rsquo;s products were a &ldquo;substantial factor&rdquo; in the development of the decedent&rsquo;s illness in order for proximate cause to exist.&nbsp;John Crane further submitted an instruction defining substantial factor as if, absent John Crane&rsquo;s conduct, the injury would not have occurred.&nbsp;John Crane further also submitted a &ldquo;state of the art&rdquo; instruction, which would have required the plaintiff to prove that John Crane and those in the asbestos products manufacturing industry knew of the alleged dangerous nature of John Crane&rsquo;s packing and gaskets.&nbsp;John Crane argued that such knowledge was required to establish a duty to warn.&nbsp;The trial court rejected these instructions submitted by John Crane.</p> <p>Ultimately, a Cook County jury found for the plaintiff and entered a $6 million verdict.&nbsp;The trial court reduced the verdict to $4.8 million to account for pre-trial settlements.&nbsp;</p> <p>In a posttrial motion, John Crane argued that Dr. Abraham should not have been allowed to testify because he essentially testified that the decedent&rsquo;s cumulative dose (or &quot;each and every exposure&quot;) to all asbestos products caused his injuries.&nbsp;In other words, John Crane claimed that Dr. Abraham failed to differentiate the decedent&rsquo;s exposure through John Crane products from his exposure through other sources.&nbsp;In addition to arguing that the court erred in rejecting the previously discussed jury instructions, John Crane also argued that the trial court erred by failing to properly analyze settlements the plaintiff entered into with certain defendants.&nbsp;The trial court denied John Crane&rsquo;s motion.</p> <p>On appeal, the First District first determined that the trial court properly allowed Dr. Abraham to testify.&nbsp;The court determined that Dr. Abraham did not testify that even a &ldquo;de minimis&rdquo; exposure to asbestos can cause illness.&nbsp;Rather, the court characterized Dr. Abraham&rsquo;s testimony as emphasizing the importance of understanding the dose of asbestos fibers to which a person was exposed when determining causation.&nbsp;Moreover, the court believed the plaintiff established the dose of the decedent&rsquo;s exposure through William Ewing&rsquo;s testimony, who quantified the decedent&rsquo;s exposure range and opined that the dosage level exceeded the background rate of asbestos exposure one would experience from the ambient environment.&nbsp;Overall, the court concluded that Dr. Abraham&rsquo;s testimony provided the background knowledge the jury required to interpret Ewing&rsquo;s opinions regarding the dose of the decedent&rsquo;s asbestos exposure through John Crane products. &nbsp;&nbsp;</p> <p>John Crane also argued that the trial court erred in excluding proposed jury instructions that included language regarding Illinois' substantial factor causation test.&nbsp;On this point, John Crane appeared to argue that the jury should have been instructed on the Illinois frequency, regularity, and proximity causation standard used in asbestos cases.&nbsp;The court found that the Illinois pattern instructions on causation (which do not use the terms substantial factor or frequency, regularity, proximity) sufficiently instructed the jury.&nbsp;The court also determined that using these terms in instructions would have improperly suggested that the plaintiff had to prove a specific dosage amount, when, under Illinois law, a plaintiff need only prove that exposure by a defendant was legally significant.&nbsp;The appellate court seemed to take the position that the frequency, regularity, proximity test is relevant when the court is making a legal determination on whether or not the plaintiff has met her burden of proof in an asbestos case, but the jury should not be given instructions using this language because it suggests that the plaintiff must quantify her exposure levels.&nbsp;</p> <p>As to John Crane&rsquo;s proposed &ldquo;state of the art&rdquo; jury instruction, John Crane argued that the jury should have been instructed that the plaintiff was required to prove either that John Crane specifically knew of the hazards of asbestos or, if not, that members of John Crane's industry had such knowledge.&nbsp;The court rejected this argument because there was evidence in the case that John Crane itself had knowledge regarding the dangers of asbestos when the decedent used its products.&nbsp;Moreover, the court believed that John Crane&rsquo;s proposed instruction would have required the jury to find both that John Crane and those in its industry knew of the dangerous nature of John Crane&rsquo;s products.&nbsp;According to the court, industry knowledge can be used to support a failure to warn claim, but it is not necessary evidence.&nbsp;Rather, the defendant's knowledge is at issue in such a claim.</p> <p>Finally, the court rejected John Crane's argument that certain settled defendants should have appeared on the jury form and that the court should have compelled the plaintiff to disclose the amounts of certain pre-trial settlements.&nbsp;The court reasoned that it is well settled Illinois law that a party defendant cannot include former co-defendants or non-parties on the verdict form.&nbsp;As to the settlement amount issue, John Crane argued that the trial court erred in finding that the plaintiff reached good faith settlements with certain defendants without requiring the parties to disclose the settlement amounts.&nbsp;In rejecting this argument, the court determined that the trial court had sufficient evidence &ndash; including the plaintiff&rsquo;s theory of liability, that plaintiff sought in excess of $50,000, and that John Crane was asserting a sole proximate cause defense &ndash; to make its good faith findings without the need to determine the amounts of the settlements.&nbsp;</p> <p>Overall, while there have been recent positive rulings favoring defendants from the First District and the Circuit Court of Cook County in asbestos litigation, those rulings have largely been limited to the issue of personal jurisdiction.&nbsp;Unfortunately for defendants, the court&rsquo;s opinion in this case is largely consistent with the trial court&rsquo;s rulings on these issues.&nbsp;However, a possible silver lining is that defendants might be able to rely on this opinion to argue that, at trial, plaintiffs cannot simply argue that all exposures to asbestos cause or contribute to the development of mesothelioma, but rather, must present some evidence establishing the dosage level of a plaintiff&rsquo;s asbestos exposure.&nbsp;</p> District Missouri Court of Appeals Overturns Talc Verdict Nov 2019Product Liability Law Blog<p>On October 15, 2019 the Missouri Court of Appeals for the Eastern District overturned a jury verdict, including punitive damages, to an out of state plaintiff. The Court ruled that the trial court lacked personal jurisdiction to render the verdict pursuant to recent United States Supreme Court authority.</p> <p align="center"><u>Facts</u></p> <p>Plaintiff Lois Slemp, a resident of Virginia, was one of sixty-two plaintiffs alleging claims against defendants Johnson &amp; Johnson, Johnson &amp; Johnson Consumer Companies, Inc. and Imerys Talc America, Inc. for personal injuries related to use of talc products produced, manufactured and sold by defendants.&nbsp;Plaintiff&rsquo;s claim was tried separately, and the jury awarded a verdict in her favor for actual and punitive damages in May 2017.&nbsp;Judgment was entered on August 3, 2017, including a finding by the trial court pursuant to Missouri Rule of Civil Procedure 74.01(b) that there was no just reason to delay entry of final judgment for purposes of proceeding with appeal.&nbsp;</p> <p>After the verdict but before judgment was entered, the landmark United States Supreme Court personal jurisdiction case, <i>Bristol-Myers Squibb v. Superior Court of Ca.</i>, 137 S.Ct. 1773 (2017), was handed down.&nbsp;Following entry of judgment, defendants filed a timely post-trial motion on September 1, 2017 seeking dismissal of plaintiff&rsquo;s claims for lack of personal jurisdiction based upon the <i>BMS</i> case.&nbsp;Defendants argued that under the <i>Bristol-Myers </i>case, there was no basis for the trial court to exercise specific personal jurisdiction over the non-resident plaintiff&rsquo;s claims where none of the circumstances leading to the plaintiff&rsquo;s claim occurred in the State of Missouri.&nbsp;</p> <p>Plaintiff later filed a motion requesting the Court temporarily vacate the judgment, and allow discovery on the issue of personal jurisdiction.&nbsp;On November 29, 2017, the trial court denied both defendants&rsquo; motions to dismiss for lack of personal jurisdiction and plaintiff&rsquo;s motion to vacate and reopen discovery.&nbsp;The trial court also issued an order striking the Rule 74.01(b) language from its original judgment. &nbsp;&nbsp;Defendants&rsquo; subsequently appealed.&nbsp;</p> <p align="center"><u>Appeal</u></p> <p>The Court of Appeals reversed the trial court&rsquo;s ruling denying defendants&rsquo; motion to dismiss on the personal jurisdiction issue, and vacated the trial court judgment in plaintiff&rsquo;s favor.&nbsp;Key to the appeal was whether the judgment entered by the trial court was final for purposes of appeal.&nbsp;Because claims remained pending as to other plaintiffs, a rule 74.01(b) finding was necessary for defendants to proceed with an appeal.&nbsp;The Court originally entered the finding on August 3, 2019, then modified the judgment on November 29, 2017.</p> <p>Under Missouri law, a trial court maintains control of its judgment for thirty days and may modify the judgment, for good cause, within this window, regardless of whether either party requests a change.&nbsp;After expiration of this original thirty-day window, a judgment may be modified only upon grounds asserted in a timely-filed post-trial motion, which must be filed within thirty days of entry of judgment.</p> <p>Because neither party filed a timely, authorized post-trial motion requesting the Rule 74.01(b) language be removed, the appellate court ruled that the trial court was without authority on November 29, 2017 to modify its judgment to remove the language certifying the judgment as final for purposes of appeal.&nbsp;The Appellate Court therefore ruled that the Order removing the Rule 74.01(b) certification language exceeded the authority of the trial court, and the appeal was properly before the Court pursuant to the language in the August 3, 2017 Judgment.&nbsp;</p> <p>After determining the judgment was final for purposes of appeal, the Court found that specific personal jurisdiction may not be established by out of state plaintiffs under circumstances arising outside the state merely by joining the claim with a Missouri plaintiff.&nbsp;Accordingly, the rulings on the personal jurisdiction motions were reversed, and plaintiff&rsquo;s judgment was reversed.</p> <p align="center"><u>Guidance for the Future</u></p> <p>When filing post-trial motions, all parties should be certain to timely request all post-trial relief, including any desired modification of judgment language, within the time allowed under procedural rules.&nbsp;Additionally, under the <i>Bristol-Myers </i>case personal jurisdiction against a defendant must be established for each claim made against it.</p> States Supreme Court Holds Counterclaim Defendants May Not Remove Diverse Lawsuits Jul 2019Product Liability Law Blog<p>In <i>Home Depot U.S.A., Inc. v. Jackson</i>, 139 S.Ct. 1743 (May 28, 2019), the U.S. Supreme Court affirmed in a 5-4 <a href="">decision</a> authored by Justice Thomas that neither the general removal provision (28 U.S.C. &sect;1441(a)) nor the removal provision in the Class Action Fairness Act of 2005 (28 U.S. C. &sect;1453(b)) permits a third-party counterclaim defendant to remove a class-action from state to federal court.</p> <p>Citibank filed a debt-collection action against George Jackson alleging he was liable for charges he incurred on a Home Depot credit card. In response, Jackson filed a counterclaim against Citibank and third-party class-action claims against Home Depot U.S.A. and Carolina Water Systems. Jackson alleged that Home Depot and Carolina Water induced homeowners to buy water treatment systems at inflated prices and engaged in unlawful referral sales and deceptive and unfair trade practices. Jackson also alleged that Citibank was jointly and severally liable for the conduct of Home Depot and Carolina Water and that his obligations under the sale were null and void. After Citibank dismissed its claims against Jackson, Home Depot removed the case to federal court under the Class Action Fairness Act (&ldquo;CAFA&rdquo;). Jackson moved to remand, arguing that precedent barred removal by a third-party/additional counter-defendant like Home Depot.</p> <p>The District Court remanded and the Fourth Circuit affirmed, relying on some almost-80 year old precedent that the general removal provision (&sect;1441(a)) did not allow Home Depot as a third-party defendant to remove the class-action claims; and concluding that CAFA&rsquo;s removal provision (&sect;1453(b)) likewise did not allow removal. The Supreme Court affirmed.</p> <p>The general removal statute, 28 U.S.C. &sect;1441(a), provides that &ldquo;any civil action&rdquo; over which a federal court would have original jurisdiction may be removed to federal court by &ldquo;the defendant or the defendants.&rdquo; Similarly, CAFA provides that a &ldquo;class action&rdquo; may be removed to federal court by &ldquo;any defendant without the consent of all defendants.&rdquo; 28 U.S.C. &sect;1453(b).</p> <p>Home Depot argued that because a third-party counterclaim defendant is a &ldquo;defendant&rdquo; to the claim against it, it may remove pursuant to &sect;1441(a). The Supreme Court disagreed based on the structure of the statute and precedent. When determining whether a district court has original jurisdiction over a civil action, it must evaluate whether that action could have been brought originally in federal court, either because it raises claims arising under federal law or because it falls within the court&rsquo;s diversity jurisdiction. The Court noted that the presence of a counterclaim is irrelevant to whether the district court has &ldquo;original jurisdiction&rdquo; over the civil action because the &ldquo;civil action&rdquo; of which the district court must have original jurisdiction is the action as defined by the plaintiff&rsquo;s complaint and the &ldquo;defendant&rdquo; to that action is the defendant to that complaint, not a party named in a counterclaim. Further, the Court noted that Congress did not intend for the phrase &ldquo;the defendant or the defendants&rdquo; in &sect;1441(a) to include third-party counterclaim defendants because the Federal Rules of Civil Procedure differentiate between third-party defendants, counterclaim defendants, and defendants. Additionally, in other removal provisions, Congress clearly extended the reach of the statute to include parties other than the original defendant (See &sect;1452(a) and &sect;&sect;1454(a) and (b)), whereas &sect;1441(a) does not so clearly extend its reach. Section 1441(a) limits removal to &ldquo;the defendant or the defendants&rdquo; in a civil action over which the district courts have original jurisdiction. Section 1441(a), therefore, does not permit removal by any counterclaim defendant, including parties brought into the suit for the first time by a counterclaim.</p> <p>Home Depot also argued that it could remove under &sect;1453(b) because of the different wording of that statute. It argued that although &sect;1441(a) permits removal only by &ldquo;the defendant or the defendants&rdquo; in a &ldquo;civil action,&rdquo; &sect;1453(b) permits removal by &ldquo;any defendant&rdquo; to a &ldquo;class action.&rdquo; The Court disagreed, holding that there was no indication that this language does anything more than alter the general rule that a civil action may not be removed on the basis of diversity jurisdiction &ldquo;if any of the &hellip; defendants is a citizen of the State in which such action is brought.&rdquo; The Court found that the two clauses in &sect;1453(b) that use the term &ldquo;any defendant&rdquo; simply clarify that certain limitations on removal do not limit removal under that section. The Court specifically found held that neither alters the limitation on who can remove, which suggests that Congress intended to leave that limit in place.</p> <p>The Court also referenced and reaffirmed its holding in <i>Shamrock Oil &amp; Gas Corp. v. Sheets,</i> 313 U.S. 100 (1941), which held that an original plaintiff may not remove a counterclaim against it. The Court found that this decades-old holding applies equally to third-party counterclaim defendants.</p> <p>Justice Alito wrote a lengthy dissenting opinion (joined by Justices Roberts, Gorsuch, and Kavanaugh), arguing that a &ldquo;defendant&rdquo; is a &lsquo;person sued in a civil proceeding&rsquo; and that the majority&rsquo;s decision leaves third-party defendants unprotected under &sect;1441 and CAFA. He thus asserted that the majority opinion reads an irrational distinction into the removal statutes.<br /> <br /> As noted by the dissent, this inability of a third-party defendant to remove raises concerns about out-of-state bias, the inability to take advantage of federal procedure rules, and the inability to use multidistrict litigation procedure.</p> Advertising: Violations of a fair trade practices statute creates new liability for firearm manufacturers and sellers Apr 2019Product Liability Law Blog<p>On December 14, 2012, Adam Lanza used his mother&rsquo;s XM15-E2S to shoot his way into the locked Sandy Hook Elementary School. Lanza killed twenty-six persons and wounded two others.&nbsp;The attack lasted four and one-half minutes.&nbsp;One hundred fifty-four rounds from Lanza&rsquo;s XM15-E2S were fired.</p> <p>The XM15-E2S Bushmaster is an AR-15 assault style semi-automatic rifle.&nbsp;It is similar to the standard issue M16 military service rifle used by the United States Armed Forces.&nbsp;Following the shooting, plaintiffs (Sandy Hook parents and others) filed actions against the Bushmaster Firearms International, LLC company (Remington) alleging a number of distinctive theories of liability.&nbsp;Among these was the claim that defendant wrongfully advertised and marketed Lanza&rsquo;s assault rifle, emphasizing its character as a military style assault rifle suitable for offensive combat missions.&nbsp;Plaintiffs alleged, among other things, that this advertising was unethical, oppressive, immoral, unscrupulous, and in violation of the Connecticut Unfair Trade Practices Act (&ldquo;CUTPA&rdquo;).&nbsp;Defendants countered that the CUTPA was not broad enough to encompass such a claim and that defendants were immunized from suit by the federal Protection of Lawful Commerce in Arms Act (&ldquo;PLCAA&rdquo;).</p> <p>The trial court agreed.&nbsp;On appeal, however, the Connecticut Supreme Court in <i>Soto v. Bushmaster Firearms International, et al. </i>concluded that the PLCAA did not immunize firearms manufacturers or suppliers who engage in wrongful marketing practices promoting criminal conduct.&nbsp;The Court also found that the CUTPA was indeed broad enough to address wrongful advertising practices and that it would fall to a jury to decide whether or not the defendant&rsquo;s advertising violated standards set forth in Connecticut&rsquo;s Unfair Trade Practices Act.</p> <p>The CUTPA is an unfair and deceptive acts and practices statute with counterparts in every state.&nbsp;These acts prohibit deceptive, unfair and unconscionable practices and commonly create private rights of action for individuals harmed by the practices prohibited. Many such statutes also create authority for governmental entities or state consumer protection officials to bring suit.</p> <p>Historically, firearms manufacturers and sellers have relied on the PLCAA bar to claims and immunize them from suits for injuries caused by the criminal conduct of third-party gun users.&nbsp;The Court in <i>Soto,</i> however, held that the PLCAA did not insulate Bushmaster from claims related to its advertising and marketing of the XM15-E2S assault style weapon.</p> <p>The Connecticut Supreme Court also found that while prior interpretations limited the reach of the CUTPA with respect to such claims, plaintiffs&rsquo; claims in this case would be permitted. The holding expands the scope of the Connecticut statute in at least three important respects: (1) plaintiffs no longer need to have a &ldquo;commercial relationship&rdquo; with defendant; (2) personal injuries are now a cognizable harm under the CUTPA; and (3) continuous advertising up to and including the date of plaintiffs&rsquo; filing prohibits the tolling of applicable statutes of limitation.</p> <p>While this ruling greatly changes the use and landscape of the CUTPA in Connecticut, the Court has only addressed the issue of standing in this case and no disposition has yet been made on the merits of plaintiffs&rsquo; claims.</p> <p>The ruling is likely to encourage plaintiffs in other states to challenge advertising and marketing by firearm manufacturers under similar and applicable unfair practices acts. Plaintiffs&rsquo; challenge in Connecticut may be the first of many such efforts yet to come.</p> <p><i>Soto v. Bushmaster Firearms Int'l, LLC,</i> 331 Conn. 53, 157 (2019)</p> Rebuffs Ninth Circuit's Attempt to "Soften" Deadline to Appeal Class Action Certification Mar 2019Product Liability Law Blog<p>The deadline to appeal an order granting or denying class certification is a rigid one that is not subject to equitable tolling, according to a unanimous United States Supreme Court. Reversing the Ninth Circuit Court of Appeals, the high court found that lower courts lack the power to relax the 14-day deadline for filing a petition for permission to appeal class-certification rulings.</p> <p><i><a href="">Nutraceutical Corporation v. Lambert</a></i> arose from a putative consumer class action filed against the maker of a dietary supplement.&nbsp;Although the Central District of California initially certified a class of similarly situated plaintiffs, it later changed its decision and entered an order decertifying the class.&nbsp;Rule 23(f) of the Federal Rules of Civil Procedure provides that a petition for permission to appeal that order had to be filed with the Ninth Circuit Court of Appeals within 14 days.&nbsp;</p> <p>However, 10 days after the ruling, the plaintiffs&rsquo; lawyers informed the district court at a status hearing that they intended to file a motion for reconsideration of the order decertifying the class.&nbsp;The district judge instructed them to do so within 10 days of the hearing&mdash;20 days from the decertification order&mdash;which they did.&nbsp;Several months later, the trial court denied the motion for reconsideration, and the plaintiffs&rsquo; lawyers then filed their petition for permission to appeal.&nbsp;While the petition for permission to appeal was filed within 14 days of the order denying reconsideration, it was more than four months after the initial order decertifying the class action.&nbsp;</p> <p>Notwithstanding this apparent procedural defect, the Ninth Circuit accepted the appeal.&nbsp;It rejected the manufacturer&rsquo;s argument that the appeal was untimely, primarily because the plaintiffs&rsquo; lawyers had told the trial court of their intention to seek reconsideration within the initial 14-day window and then sought permission to appeal within 14 days of the denial of that motion for reconsideration.&nbsp;To reach this result, it invoked the doctrine of equitable tolling to &ldquo;soften&rdquo; the deadline and permit the appeal.&nbsp;True to its reputation as a judicial outlier, the Ninth Circuit acknowledged contrary authority from the Second, Third, Fourth, Fifth and Seventh Circuits and admitted those courts &ldquo;would likely not toll the Rule 26(f) deadline&rdquo; under these circumstances. &nbsp;</p> <p>The United States Supreme Court took a far more rigid view of the 14-day deadline imposed by Rule 26(f), describing it as &ldquo;purposefully unforgiving.&rdquo;&nbsp;Writing for a unanimous court, Justice Sonia Sotomayor framed the issue as whether the text of the rules left room for flexibility in how this deadline is imposed.&nbsp;Although appellate courts have very broad authority under the Federal Rules of Appellate Procedure to &ldquo;suspend any provision of these rules in a particular case,&rdquo; that flexibility comes with an important caveat: Appellate Rule 26 expressly provides that courts of appeals &ldquo;may not extend the time to file [&hellip;] a petition for permission to appeal.&rdquo;&nbsp;The court found that this language shows &ldquo;a clear intent to compel rigorous enforcement&rdquo; of the 14-day deadline to file with the appellate court.&nbsp;&ldquo;Courts may not,&rdquo; Justice Sotomayor concluded, &ldquo;disregard a properly raised procedural rule&rsquo;s plain import any more than they may a statute&rsquo;s.&rdquo;</p> <p>The plaintiffs&rsquo; lawyers tried to draw a distinction between &ldquo;extending the time to file&rdquo; a petition to appeal, which Appellate Rule 26 expressly forbids, with a decision &ldquo;to excuse late filings on equitable grounds after the fact.&rdquo;&nbsp;Relying on prior Supreme Court precedent under the analogous rules of criminal procedure, the high court rejected this type of hair-splitting.&nbsp;No matter how it is described, the acceptance of a late filing is a de facto extension of time.</p> <p>But this opinion does not completely dash these plaintiffs&rsquo; attorneys&rsquo; hopes of appealing the decertification of their class.&nbsp;The Supreme Court declined to weigh in on two of their primary arguments for certification, because those were not addressed by the underlying court of appeals opinion.&nbsp;This leaves the Ninth Circuit free to revive those arguments on remand.&nbsp;</p> <p>First, the plaintiffs&rsquo; lawyers argued that regardless of whether the deadline for a petition for permission to appeal could be extended, the trial court could extend the time to file a motion for reconsideration, and they claimed the district court did just that when it instructed them to file their motion for reconsideration within 10 days of the hearing. &nbsp;Alternatively, they argued that the order denying reconsideration was itself an &ldquo;order granting or denying class-action certification,&rdquo; starting a new 14-day window in which to file a petition to appeal, even if they had blown the initial deadline.&nbsp;In either case, the crux of the argument is that the deadline to file a petition for permission to appeal should have been calculated from the date the motion for reconsideration was denied, not the date of the initial class decertification.</p> <p>And these arguments might have some legs, too.&nbsp;The Supreme Court carefully confined its analysis to the narrow issue of whether equitable tolling could be applied to the deadline to appeal class certification orders, since that was the sole basis for the Ninth Circuit&rsquo;s ruling.&nbsp;Justice Sotomayor even acknowledged that a timely motion for reconsideration can render an otherwise final decision not final for appeal purposes. &nbsp;The question of whether the motion for reconsideration was timely and, if so, its effect remains unanswered.&nbsp;This means the parties&rsquo; appellate battle is not over, with the next round back before the Ninth Circuit.&nbsp;And regardless of how that court rules, a second appeal to the Supreme Court may be necessary to untie the rest of this procedural knot.</p>