Law Reporter and Trial News

 

Selected news from Trial News, the Products Liability Law Reporter, and Professional Negligence Law Reporter


Negligent chemotherapy treatment

JULY 26, 2016, PNLR E-Newsletter
 

The plaintiff, who needs a heart transplant as a result of heart failure brought on by an overdose of chemotherapy drugs, alleged a doctor, his practice, and a hospital were liable for negligent administration of her chemotherapy. The parties settled for $12 million. Rogers v. Mathey.


California Supreme Court to review ‘innovator liability’ generic drug case

JULY 21, 2016, Trial News
 

The California Supreme Court has agreed to review whether a brand-name drug manufacturer can be held liable for injuries caused by its generic equivalent. The plaintiffs in the case before the court have alleged that a brand-name drugmaker is liable for failure to warn and negligent misrepresentation even if the patient took a generic version manufactured by a different company—known as “innovator liability”—because generic drug labels follow the brand-name drug’s label.


Valve maker’s failure to warn of asbestos dangers led to veteran’s mesothelioma

JULY 12, 2016, PLLR E-Newsletter
 

The plaintiff alleged that the defendant’s valves were defective in that they contained asbestos and the defendant knew or should have known of the danger but failed to warn. The jury awarded $3.2 million. Shays v. Jenkins Bros.


Rental cars with open recalls must be repaired under new law

JULY 7, 2016, Trial News
 

On June 1, a new law went into effect requiring rental cars with open recalls to be repaired before renting or selling them to customers. The law—which applies to companies with more than 35 rental vehicles—is part of the Fixing America’s Surface Transportation Act of 2015 that was enacted last December.


Failure to timely diagnose, treat postsurgical infection

JUNE 21, 2016, PNLR E-Newsletter
 

The plaintiff, who ultimately required an arm amputation, sued the orthopedic surgeon who performed her carpal tunnel release, alleging failure to properly evaluate, diagnose, monitor, and supervise her condition, among other claims. The jury awarded about $1.5 million. Danko v. Conyers.


DOL expands overtime eligibility to millions of workers

JUNE 16, 2016, Trial News
 

On May 18, the U.S. Department of Labor (DOL) announced a new overtime rule that will require employers to pay salaried workers earning up to $47,476 annually time-and-a-half for every hour they work over 40 in a week. The previous salary threshold, set in 2004, was $23,660. The new rule will take effect Dec. 1, 2016.


ATV steering malfunctions, throwing and injuring rider

JUNE 7, 2016, PLLR E-Newsletter
 

The plaintiff sued the Chinese manufacturer of the vehicle and several U.S.-based companies that imported and sold it, alleging the ATV was defective and unreasonably dangerous. Bynum v. Zhejiang Peace Indus. & Trade Co., Ltd.


Oregon Supreme Court upholds damages cap

JUNE 2, 2016, Trial News
 

Oregon’s highest court has overturned a $12 million jury verdict against a public hospital, upholding a $3 million cap on damages in lawsuits brought against the state or its employees. In a lengthy opinion, Judge Rives Kistler held that the Oregon Tort Claims Act (OTCA)—which imposes a $3 million limit on damages payable by public entities—does not violate Oregon’s constitution.


Failure to timely detect compartment syndrome

MAY 24, 2016, PNLR E-Newsletter
 

The plaintiff underwent surgery following a leg injury and soon developed compartment syndrome, which led to an above-the-knee amputation. Suit alleged the hospital failed to implement an adequate surveillance system for detecting and monitoring acute compartment syndrome. The jury awarded $2.85 million. Gray v. Mlsna.


CFPB proposes limit on mandatory arbitration clauses that prohibit class actions

MAY 19, 2016, Trial News
 

The Consumer Financial Protection Bureau (CFPB) has announced a proposed rule to limit mandatory arbitration clauses prohibiting class actions in consumer financial products and services contracts, including credit cards, bank accounts, and loans. The proposed rule is the result of a study that the bureau conducted at Congress’s behest, and it will prevent companies from inserting in new contracts mandatory arbitration clauses that stop consumers from pursuing class actions. There will be a 90-day comment period on the proposed rule.


Da Vinci manufacturer settles claim alleging botched hysterectomy

MAY 10, 2016, PLLR E-Newsletter
 

The plaintiffs alleged that the robotic system was defectively designed and manufactured in that microscopic cracks in the insulation could permit electricity to leak out and damage the patient’s surrounding tissue. The parties settled confidentially. Zarick v. Intuitive Surgical, Inc.


Equal pay fights take center stage

MAY 5, 2016, Trial News
 

Farmers Insurance Group, Inc., has agreed to pay about $4 million to hundreds of female attorneys who claimed they were paid less than their male counterparts during their time at the company. The settlement is one example of recent, high-profile lawsuits filed by women demanding equal pay. This past March, the U.S. women’s national soccer team filed a complaint with the Equal Employment Opportunity Commission, accusing the U.S. Soccer Federation of gender-based wage discrimination.


Failure to identify, repair intraoperative injury

APRIL 26, 2016, PNLR E-Newsletter
 

The plaintiff alleged that the gynecologist who removed her ovarian cyst failed to timely identify and repair a torn sigmoid colon that occurred during the procedure, resulting in a colostomy and further treatment. The jury awarded $1.52 million. Frith v. Bassett Healthcare Network.


Third Circuit affirms NFL concussion settlement

APRIL 21, 2016, Trial News
 

The Third Circuit has affirmed the April 2015 concussion litigation settlement that requires the NFL to pay up to $5 million each to thousands of retired players suffering from certain neurological disorders. In 2013, hundreds of former players joined in a class action against the NFL, alleging that it concealed the dangers of chronic traumatic encephalopathy and its link to professional football.


Deli’s improper food safety procedures caused young patron’s salmonella poisoning

APRIL 12, 2016, PLLR E-Newsletter
 

The girl and her parents sued the deli, alleging strict liability for selling contaminated food. The parties settled before trial for $150,000. Gagnon v. Brent’s Delicatessen & Rest.


Supreme Court allows statistical sampling in unpaid overtime case

APRIL 7, 2016, Trial News
 

Employees at a food processing plant bringing a class action for unpaid overtime wages may rely on a statistical sample to show the number of overtime hours worked, the U.S. Supreme Court has ruled. The employees of Tyson Foods, Inc., claimed that they were owed overtime pay under the Fair Labor Standards Act (FLSA) for the time they took to put on and remove required protective gear—known as “donning and doffing.”


Excessive administration of antiarrhythmic

MARCH 22, 2016, PNLR E-Newsletter
 

The plaintiff alleged that an excessive dose of the antiarrhythmic Amiodarone during aortic valve surgery caused the patient’s heart to stop pumping adequate blood, leading to anoxic brain damage and partial paralysis. The jury awarded about $12.2 million. Friedenberg v. Peacehealth.


Jury finds for plaintiff in first Johnson & Johnson talc powder lawsuit

MARCH 17, 2016, Trial News
 

In the first verdict out of more than one thousand lawsuits alleging a link between Johnson & Johnson’s talc-based powders and an increased risk of ovarian cancer, a St. Louis jury has awarded the family of Jacqueline Fox $72 million, including $62 million in punitive damages.


Jury holds Crane Co. accountable for millwright’s fatal mesothelioma

MARCH 8, 2016, PLLR E-Newsletter
 

The man’s estate argued that Crane and others were negligent in placing asbestos-containing products into the stream of commerce and in failing to warn of their products’ dangers when they knew or should have known the health hazards of asbestos. Dobrick v. Air & Liquid Sys. Corp.


First Amendment protects Michigan attorney’s blog post

MARCH 3, 2016, Trial News
 

The Michigan Attorney Grievance Commission has ruled that an attorney’s blog post is constitutionally protected speech, dismissing a grievance filed against the attorney by a doctor who performed a defense medical exam (DME) on his client.


Failure to summon emergency care for infant

FEBRUARY 23, 2016, PNLR E-Newsletter
 

The plaintiff alleged that her foster mother failed to timely bring her to the hospital and that a family physician failed to summon emergency care or accompany her to the hospital when she stopped breathing and required resuscitation. The parties settled for $1.2 million. Doe v. Cook.


Second Circuit rules bullied student was denied right to a free public education

FEBRUARY 18, 2016, Trial News
 

The Second Circuit has ruled that a New York City public school denied a student with learning disabilities access to a free appropriate public education and must pay her tuition at a private school. The student’s parents claimed that the school refused to discuss repeated, severe bullying against their daughter in violation of the Individuals with Disabilities Education Act.


Bus’s side-view mirror blocked view of pedestrian, leading to collision

FEBRUARY 9, 2016, PLLR E-Newsletter
 

The plaintiff sued a transit authority, alleging that its driver was negligent in failing to keep a proper lookout and yield to a pedestrian. Suit against the bus manufacturer alleged that the bus’s mirror needlessly obstructed the driver’s view. Chin v. Southeastern Pa. Transp. Auth.


Oklahoma residents file class action over fracking-related earthquake damage

FEBRUARY 4, 2016, Trial News
 

Residents of Logan County, just north of Oklahoma City, have filed a class action lawsuit against four energy companies—Chesapeake Operating, New Dominion, Devon Energy Production, and SandRidge Exploration and Production. The suit, filed on Jan. 12, alleges that the companies’ fracking-related wastewater disposal has caused an increase in earthquakes, damaging residents’ homes.


Failure to diagnose bacterial infection

JANUARY 26, 2016, PNLR E-Newsletter
 

The plaintiffs alleged that the patient’s primary care physician, a hospital, and several ER physicians failed to act on a positive blood culture, treat the infection, and follow up with repeat blood tests. The parties settled for $900,000. Doe v. Roe.


Township’s entitlement to FLSA police exemption is jury question

JANUARY 21, 2016, Trial News
 

A federal court in New Jersey has ruled that a township’s entitlement to the Fair Labor Standards Act’s (FLSA) police exemption is an issue of material fact for a jury. The plaintiffs—six current and former law enforcement officers for the Township of Franklin, N.J.—claim that the township violated the FLSA by failing to compensate them for pre- and post-shift work.


Chinese herbal supplement caused woman’s kidney failure

JANUARY 12, 2016, PLLR E-Newsletter
 

The plaintiff sued three companies that allegedly distributed and sold the supplement, alleging that the product was defective in that it contained aristolochic acid, a substance commonly used in Chinese manufacturing but banned in the United States. The jury awarded about $3.82 million. Drury v. Life Rising Corp.


AAJ report highlights civil justice efforts to address concussions in athletes

JANUARY 7, 2016, Trial News
 

AAJ has released a research report, “Concussions and the Courthouse 2015,” discussing the civil justice system’s role in drawing attention to and changing how head injuries are handled in contact sports. The report recounts how litigation against the National Football League (NFL) spurred a nationwide shift in how brain trauma is viewed and tells the stories of injured players, from professional athletes to teenage students.


Failure to diagnose cervical epidural abscess

DECEMBER 22, 2015, PNLR E-Newsletter
 

The plaintiffs alleged that a hospital, radiologist, and neurologist were liable for failing to diagnose and treat the abscess, which left the patient paralyzed. The jury awarded about $12.52 million. Del Grosso v. Del. Cnty. Mem’l Hosp.


FDA warns of potential injuries from coatings on intravascular medical devices

DECEMBER 17, 2015, Trial News
 

The FDA has identified a risk to patients from intravascular devices with a coating that may separate from the device and cause injury. On Nov. 23, the agency issued a safety communication to health care providers warning that the hydrophilic and hydrophobic coatings on different types of devices used for various, minimally invasive vascular procedures may “peel, flake, shed, delaminate, [or] slough off.”


Tobacco companies liable for smoker’s laryngeal, lung cancers

DECEMBER 8, 2015, PLLR E-Newsletter
 

The plaintiff alleged that she was a member of the former Engle class action entitled to that jury’s findings given res judicata effect. The jury found that the plaintiff was addicted to nicotine and that smoking had caused her cancers. Cooper v. R.J. Reynolds Tobacco Co.


Hundreds of state law diabetes drug claims preempted

DECEMBER 3, 2015, Trial News
 

A federal district court has dismissed failure-to-warn claims in multidistrict litigation involving four drugs for the treatment of Type II diabetes, finding that the plaintiffs’ state law claims are preempted. The plaintiffs alleged that the drugmakers failed to warn about the risks of pancreatic cancer associated with the drugs—Januvia, Janumet, Byetta, and Victoza.


Inadequate postoperative treatment plan

NOVEMBER 24, 2015, PNLR E-Newsletter
 

The plaintiff alleged that a hospital and ICU physician failed to implement an adequate posteroperative treatment plan for her child, who suffered brain damage after surgery on her skull. The parties settled before trial for $16.3 million. Ayoola v. Advocate Christ Hosp. & Med. Ctr.


NTSB report highlights deficiencies in tire recall process

NOVEMBER 19, 2015, Trial News
 

The National Transportation Safety Board (NTSB) has released an initial report highlighting deficiencies in the tire recall process and recommending actions the National Highway Traffic Safety Administration and tire manufacturers can take to increase safety. An NTSB investigation revealed that the current system of implementing tire recalls is insufficient and that the rate of recalled tires that are ultimately repaired or replaced is well below that of recalled vehicles.


AMMCO’s failure to warn of brake grinder asbestos risk led to mechanic’s mesothelioma

NOVEMBER 10, 2015, PLLR E-Newsletter
 

The plaintiff sued AMMCO’s successor-in-interest, alleging that the company knew for decades about the asbestos hazard associated with its grinders but failed to adequately warn of the hazard. The plaintiff also alleged that AMMCO acted with reckless disregard for the safety of others. The jury awarded $25 million. Miller v. BMW of N. Am., LLC.


Data breach case against Coca-Cola moves forward

NOVEMBER 5, 2015, Trial News
 

A federal court has allowed a data breach action against Coca-Cola involving the theft of 55 laptops that contained 74,000 employees’ personal information to proceed. The Eastern District of Pennsylvania found that the plaintiff had Article III standing and allowed claims of breach of contract and unjust enrichment to proceed, but the court dismissed claims for negligence, fraud, negligent misrepresentation, and violation of the Driver’s Privacy Protection Act, among others. The case is another in a string of data breach suits nationwide in which personally identifiable information was potentially compromised.


Late diagnosis of duodenal ulcer

OCTOBER 20, 2015, PNLR E-Newsletter
 

Suit alleged that two gastroenterologists failed to timely diagnose the ulcer, resulting in the patient developing short bowel syndrome and other complications. The jury awarded $28.4 million. Stern v. Johnson-Futrell.


Corporate official sentenced to 28 years in prison for role in salmonella outbreak

OCTOBER 15, 2015, Trial News
 

The head of a peanut processing company was sentenced on Sept. 21 to an unprecedented 28 years in prison for his role in a 2009 salmonella outbreak that killed nine people and sickened hundreds more nationwide. Stewart Parnell, the former owner, president, and CEO of the Peanut Corporation of America (PCA), was found guilty in Georgia federal district court for violations of federal law, including conspiracy, mail and wire fraud, sale of misbranded food, and introduction of adulterated food into interstate commerce.


Exposure to asbestos in adhesive caused engineer’s mesothelioma

OCTOBER 6, 2015, PLLR E-Newsletter
 

The plaintiffs sued the adhesive manufacturer’s successor, alleging that the manufacturer was negligent and strictly liable for manufacturing and selling an unreasonably dangerous and defective product. The jury awarded about $804,800. Bagley v. Wyeth Holding Corp.


More cases filed alleging defective Bard IVC filters in wake of MDL centralization

OCTOBER 1, 2015, Trial News
 

Litigation is ramping up against C.R. Bard as more information comes to light about the company’s allegedly defective IVC blood clot filters. Twenty-two cases pending across the country were centralized into a MDL in the District of Arizona under Judge David G. Campbell on Aug. 17. As of Sept. 24, that number has more than doubled.


Narcotics overdose

SEPTEMBER 22, 2015, PNLR E-Newsletter
 

Suit alleged that an internist and the management group of a nursing and rehabilitation center were liable for prescribing improper and excessive doses of pain medication to a patient and failing to monitor her, among other claims. Williams v. Advantage Mgmt. Group, Inc.


Alleged design flaw in keyless fob ignition systems leads to 13 deaths

SEPTEMBER 17, 2015, Trial News
 

Consumers have sued Bentley, BMW, Ford, Honda, Hyundai, Kia, Mercedes-Benz, Nissan, Toyota, and Volkswagen in federal court in California, alleging that a flaw in the design of keyless fob ignition systems has led to 13 deaths from carbon monoxide poisoning. The plaintiffs estimate that at least 5 million cars are affected and have not been recalled.


Failure to warn of known product dangers leads to Navy machinist’s mesothelioma

SEPTEMBER 8, 2015, PLLR E-Newsletter
 

The plaintiff alleged that various manufacturers and suppliers of asbestos-containing products failed to warn of their products’ known dangers. The jury awarded $11.5 million, including $10 million in punitive damages. Poage v. 3M Co.


FDA cannot prohibit the promotion of truthful, off-label uses

SEPTEMBER 3, 2015, Trial News
 

A federal district court in New York ruled that the FDA cannot stop a drugmaker from promoting its products for off-label use if those claims are truthful. Plaintiff attorneys are concerned about what this ruling means for consumer safety.


Negligent treatment of testicular cancer

AUGUST 25, 2015, PNLR E-Newsletter
 

Suit alleged that an oncologist negligently prescribed four courses of BEP chemotherapy when the patient should have had only three courses, resulting in bleomycin toxicity that led to his death. After the jury awarded about $1.3 million, the parties settled confidentially. Peters v. Drosick.


Fiat Chrysler hit with large fine and verdict

AUGUST 20, 2015, Trial News
 

Following a year of record-breaking recalls and fines for General Motors and Honda, Fiat Chrysler Automobiles now finds itself in a similar situation. The National Highway Traffic Safety Administration has ordered the automaker to pay $70 million—the highest penalty the agency has ever levied &mdsh;for failing to issue 23 recalls for 11 million vehicles with defective suspensions and fire-prone fuel tanks.


Plaintiffs prevail in suit over toy coated with toxic chemical

AUGUST 11, 2015, PLLR E-Newsletter
 

The plaintiffs alleged that the toy was defective and unreasonably dangerous and that the defendants failed to test it and warn of the danger. The jury awarded $435,000. Monje v. Spin Master, Inc.


Seventh Circuit revives data breach class action

AUGUST 6, 2015, Trial News
 

The Seventh Circuit has reinstated a class action against Neiman Marcus alleging that thousands of customers incurred fraudulent charges and others had their credit card information exposed due to a cyberattack on the retailer in 2013. The decision marks the first time a federal appellate court has reviewed—and revived—a data breach class action after a lower court dismissed the case because the plaintiffs lacked Article III standing to bring their claims.


Unnecessary brain surgery

JULY 21, 2015, PNLR E-Newsletter
 

Suit alleged that the defendant hospital performed unnecessary surgery on a patient after it relied on another patient’s CT scan results in recommending emergency surgery. The jury awarded $20 million. Nayyar v. Oakwood Healthcare Inc.


Plaintiffs notch three victories in employment misclassification battle

JULY 16, 2015, Trial News
 

For several years, there has been an ongoing tug-of-war between companies such as Fed Ex and Uber Technologies, Inc., and their workers, who argue that they are classified improperly as independent contractors instead of employees, depriving them of certain rights and benefits. Several recent cases against these companies indicate that the pendulum may be swinging in the workers’ favor.


Laser orientation mark was burned too deeply, causing hip implant to fail

JULY 7, 2015, PLLR E-Newsletter
 

The plaintiffs alleged that the device’s orientation mark—lasered into the implant to assist surgeons in positioning it—was burned too deeply, damaging the device’s structure and making it brittle and prone to fracture. The jury awarded $4.5 million. Warner v. Wright Med. Tech., Inc.


Off-label Infuse case preempted, Second Circuit says

JULY 2, 2015, Trial News
 

The Second Circuit has affirmed the dismissal of a plaintiff’s case against Medtronic for the off-label promotion of its Infuse Bone Graft/LT-Cage Lumbar Tapered Fusion device. The court found that the plaintiff’s state law claims were preempted under section 360k(a) of the Medical Device Amendments of the Federal Food, Drug, and Cosmetic Act.


Negligent performance of laparoscopic hysterectomy

JUNE 23, 2015, PNLR E-Newsletter
 

The plaintiff alleged that a gynecological oncologist and his medical group negligently performed the surgery by using an improper technique and applying undue pressure in advancing an optical trocar, resulting in lacerations to her small bowel and iliac arteries. Weldon v. Jazaeri.


Tenth Circuit rules Feres doctrine bars birth injury claim

JUNE 18, 2015, Trial News
 

The federal government is immune from liability for the injuries a servicewoman's baby sustained during childbirth due to the negligence of military hospital staff, the Tenth Circuit has held. The court ruled that Feres barred the plaintiff’s claims because the child's in utero injuries were derivative of the mother's injuries.


Fuel tank rupture causes fatal fire

JUNE 9, 2015, PLLR E-Newsletter
 

The plaintiffs alleged that the location of the Jeep’s fuel tank posed a deadly fire hazard. They claimed Chrysler had known of the danger for decades and failed to warn of the defect. The jury awarded $150 million. Walden v. Chrysler Group LLC.


Deadly Amtrak train derailment leads to litigation

JUNE 4, 2015, Trial News
 

Eight people were killed and more than 200 were injured when a speeding Amtrak train derailed on May 12. Almost a dozen personal injury lawsuits have been filed since then.


Nursing aide’s negligence leads to refractured hip

MAY 26, 2015, PNLR E-Newsletter
 

The plaintiff alleged that a rehabilitation facility was liable for its nursing aide’s negligence in forcefully moving the patient’s leg, among other claims. The jury awarded about $1.52 million. Huuskonen v. Pinnacle Healthcare, Inc.


Takeda agrees to landmark Actos settlement

MAY 21, 2015, Trial News
 

In one of the largest pharmaceutical products liability settlements in U.S. history, Takeda Pharmaceutical Co. has agreed to pay more than $2.3 billion to settle cases brought by plaintiffs who allege they developed bladder cancer after taking the diabetes drug Actos.


Supreme Court rules filing deadlines in FTCA cases can be equitably tolled

MAY 7, 2015, Trial News
 

The statute of limitations deadline for filing negligence claims against the government under the Federal Tort Claims Act can be equitably tolled if the plaintiffs diligently try to comply with those deadlines but extraordinary circumstances prevent it, the Supreme Court has held.


Improper supervision leads to child’s sexual assault

APRIL 21, 2015, PNLR E-Newsletter
 

The plaintiff alleged that a day care facility’s operator was negligent in leaving him unsupervised for more than 90 minutes, allowing another child at the facility to beat and sexually assault him. Suit also alleged understaffing. The jury awarded about $13.53 million. Doe v. New Horizon Kids Quest Inc.


Supreme Court creates framework for analyzing accommodations for pregnant workers

APRIL 16, 2015, Trial News
 

The Supreme Court recently established a burden-shifting framework for a pregnant worker to demonstrate discrimination—it considers whether many nonpregnant employees were given an accommodation while pregnant employees were not.


Plaintiffs claim Ford failed to address skate risk, leading to fatal rollover

APRIL 7, 2015, PLLR E-Newsletter
 

The plaintiffs sued the automaker, alleging its 2002 Explorer was subject to the dangerous condition known as skate and that the defendant was aware of how to eliminate or compensate for the condition but failed to do so. Yruegas v. Ford Motor Co.


Dozens of class actions filed over potentially toxic wood flooring

APRIL 2, 2015, Trial News
 

Lumber Liquidators’ Chinese-made wood laminate flooring emits levels of formaldehyde six to seven times higher than emissions standards allow, and the manufacturer lied about the product’s safety, plaintiffs allege. State and federal agencies are investigating.


Negligent prescription of Imitrex

MARCH 24, 2015, PNLR E-Newsletter
 

The plaintiff, who suffered a hemorrhagic stroke, alleged that her family physician prescribed Imitrex for her migraine headaches without first inquiring whether she had taken another headache medicine that day that is contraindicated for use with Imitrex. The jury awarded about $4.41 million. Stelmack v. Lucio-Reincke.


Report illustrates the extent of harm forced arbitration causes consumers

MARCH 19, 2015, Trial News
 

Forced arbitration hurts consumers, and consumers rarely realize they’re being stripped of their rights, says a recent report by the Consumer Financial Protection Bureau.


Tobacco companies settle federal cases

MARCH 10, 2015, PLLR E-Newsletter
 

Plaintiffs and three major cigarette manufacturers—Lorillard Tobacco Co., Philip Morris, and R.J. Reynolds Tobacco Co.—have reached a $100 million settlement for roughly 400 cases pending in federal district court in Florida.


Individualized damages do not bar class certification, Second Circuit holds

MARCH 5, 2015, Trial News
 

In a collective action that former Applebee’s employees pursued against the restaurant chain, alleging violations of the Fair Labor Standards Act and New York labor law, the Second Circuit held that a court may not deny class certification merely because damages must be calculated on an individual basis.


Delayed delivery results in brain injury

FEBRUARY 24, 2015, PNLR E-Newsletter
 

The parents of an infant whose birth was delayed despite evidence of fetal distress sued the hospital and the United States—which employed several of the attending physicians—alleging failure to perform a timely delivery. The parties settled at mediation for $25.25 million. Doe v. U.S.


Air bag defect linked to sixth death as crisis worsens

FEBRUARY 19, 2015, Trial News
 

A sixth person has been killed and at least 160 people have been injured by Takata Corp.’s exploding air bags. As questions arise over problems with the recall and repair process, attorneys are concerned the injuries and deaths will grow.


Defective tire fails, leading to fatal rollover

FEBRUARY 10, 2015, PLLR E-Newsletter
 

The plaintiffs sued the tire manufacturer, alleging that the tire was defectively designed and manufactured, rendering it prone to tread separation and failure. Suit also alleged that the tire was defectively designed in that it lacked a full nylon cap ply. Mendoza v. Cooper Tire & Rubber Co.


Fla. court rules right to privacy does not shield Facebook photos from discovery

FEBRUARY 5, 2015, Trial News
 

A plaintiff has a “limited privacy interest, if any,” in pictures posted on social networking sites, regardless of privacy settings, according to a Florida appellate court. The court held that the plaintiff must produce more than five years’ worth of Facebook photos as part of discovery in a slip-and-fall lawsuit against Target Corp.


New clinical trial rules would expand adverse event disclosures

JANUARY 27, 2015, PNLR E-Newsletter
 

The U.S. Department of Health and Human Services has issued a notice of proposed rulemaking that would require manufacturers and researchers to publicly disclose more information about clinical drug and device trials, especially concerning adverse events.


Pa. Supreme Court rules Dukes does not apply to wage-and-hour verdict

JANUARY 22, 2015, Trial News
 

In a group of wage-and-hour class actions against Walmart, the Pennsylvania Supreme Court has upheld a $154 million jury award. The court concluded that the methods the trial court used to determine liability and damages for each class member did not constitute a “trial by formula.”


Plaintiffs seek MDL in Benicar litigation

JANUARY 13, 2015, PLLR E-Newsletter
 

Lawsuits are mounting over the blood pressure drug Benicar, which has been linked to serious gastrointestinal injuries, including flu-like enteropathy—a condition that causes severe, chronic diarrhea and malnourishment, among other problems.


Guardrail manufacturer faces increased scrutiny

JANUARY 8, 2015, Trial News
 

A state and two counties have filed suit against Trinity Industries, Inc., over its ET-Plus guardrails. Federal and state regulators are bearing down on the embattled manufacturer as well.


Jury sides with AutoZone employee in pregnancy discrimination case

DECEMBER 18, 2014, Trial News
 

A California jury found that an AutoZone worker’s supervisor discriminated and retaliated against her because of her pregnancy—and that the corporate office’s legal department perpetrated that behavior. The jury awarded $185 million.


Wyoming Supreme Court strikes down limitations period for minors’ med-mal claims

DECEMBER 14, 2014, PNLR E-Newsletter
 

The Wyoming Supreme Court held that two state laws restricting the period in which minors may bring medical malpractice claims violate the state constitution’s open courts provision.


Air bag crisis erupts, leading to more recalls, lawsuits

DECEMBER 4, 2014, Trial News
 

The air bag manufacturer Takata and several automakers have recalled millions of air bags because they may explode—even in low-impact crashes—ejecting shrapnel-like material and turning a crucial safety device into a deadly weapon.


Supreme Court debates proof standard in securities fraud case

NOVEMBER 20, 2014, Trial News
 

At oral argument, the Supreme Court considered what a plaintiff investor must show in a case involving §11 of the Securities Act of 1933, which provides a remedy for investors who purchase securities pursuant to a registration statement that contains an untrue statement of material fact or omits a material fact.


States ban ET-Plus guardrails after fraud verdict against manufacturer

NOVEMBER 11, 2014, PLLR E-Newsletter
 

At least 35 states have placed a moratorium on installing Trinity Industries, Inc.’s ET-Plus guardrails after a study concluded the ET-Plus was nearly three times more likely to cause a fatality than its predecessor and after a federal jury found Trinity liable for fraud concerning undisclosed design changes that are potentially fatal. About a dozen personal injury and wrongful death lawsuits have already been filed, and plaintiff attorneys say this is only the tip of the iceberg


Eleventh Circuit upholds Florida med-mal law allowing ex parte communications

OCTOBER 28, 2014, PNLR E-Newsletter
 

The Eleventh Circuit upheld part of a 2013 Florida medical malpractice law that allows essentially unlimited ex parte communications between all defense-related counsel and witnesses and a plaintiff’s health care providers during the 90-day presuit period. Attorneys worry the law will intimidate treating physicians, discourage plaintiffs from bringing med-mal actions, and encourage other states to pass similar statutes.


FDA panel wants strict label for testosterone therapies, more studies on safety

OCTOBER 21, 2014, PLLR E-Newsletter
 

Heeding the call from safety advocates and medical experts, an FDA panel has recommended by a 20-1 vote that the agency tighten control over testosterone replacement therapies (TRTs) to ensure they are prescribed only to men with serious medical conditions. The panel also voted to require that drugmakers perform clinical studies to further test the link between TRTs and heart attacks and strokes.


Proposed rule closes loopholes on predatory lending for servicemembers

OCTOBER 16, 2014, Trial News
 

The Military Lending Act prohibits certain creditors from forcing servicemembers into arbitration and charging them or their dependents more than 36 percent annual interest rate. Now, the U.S. Department of Defense has issued a proposed rule that would expand these protections.


Missouri Supreme Court invalidates punitive damages caps on common law claims

OCTOBER 2, 2014, Trial News
 

In a case that arose out of an auto dealer’s alleged fraudulent misrepresentation, the Missouri Supreme Court recently held that limits on punitive damages for common law torts are unlawful under the state constitution.


FedEx drivers improperly classified as independent contractors

SEPTEMBER 18, 2014, Trial News
 

In two companion decisions, the Ninth Circuit held that FedEx Ground Package System, Inc., improperly labeled its delivery drivers independent contractors rather than employees, illegally depriving them of certain benefits and rights. Plaintiff attorneys said the decisions’ effect may extend to other industries that rely on similar independent contractor business models.


Two schools cited for unnecessary restraint, seclusion of children

SEPTEMBER 16, 2014, PNLR E-Newsletter
 

Two Virginia schools for students with emotional and behavioral issues restrained or secluded students hundreds of times in nonemergency situations, the Department of Education recently found. A ProPublica analysis released in June found that children were held down, handcuffed, duct-taped, locked in dark rooms, and otherwise restrained more than 267,000 times in the 2012 school year.


Cymbalta users sue over undisclosed withdrawal side effects

SEPTEMBER 9, 2014, PLLR E-Newsletter
 

Almost two dozen consumers who suffered moderate to severe side effects when they tried to stop using the antidepressant Cymbalta recently sued drugmaker Eli Lilly & Co. The plaintiffs claim the company knew the drug caused withdrawal symptoms in nearly half those who discontinued it but significantly downplayed the risks in warning labels.


Minnesota Supreme Court rejects Twombly and Iqbal pleading standard

SEPTEMBER 4, 2014, Trial News
 

The Minnesota Supreme Court has expressly rejected the federal pleading standard that the U.S. Supreme Court established in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal and held that Minnesota’s traditional pleading standard applies.


As agencies crack down on mortgage-relief scams, homeowners settle claims against law firm

SEPTEMBER 2, 2014, Class Action Law Reporter
 

Colorado homeowners who fought foreclosure in the height of the mortgage crisis have settled a class action against a law firm that regularly charged inflated fees to post foreclosure notices. The federal government and states across the country are pursuing law firms that have scammed homeowners out of millions of dollars, including some that promised homeowners could pay to join “mass joinder” lawsuits that would force banks to modify their loans.


Patients infected by tainted saline that nurse substituted for stolen pain meds

AUGUST 19, 2014, PNLR E-Newsletter
 

A hospital patient who suffered horrific pain and a blood infection necessitating an arm amputation after a nurse took her pain medication and substituted contaminated saline has sued the hospital for medical negligence. At least 25 patients were sickened by the contaminated saline in 2010, including one who died. Several have lawsuits pending against the hospital.


Debt-relief firms scamming student loan borrowers

AUGUST 7, 2014, Trial News
 

Debt settlement companies have now targeted student loan borrowers, charging them for nonexistent services or free government services. Federal and state regulators have stepped in, and the Illinois Attorney General has filed lawsuits against two companies.


Supreme Court helps ERISA plaintiffs but leaves issues unresolved

AUGUST 5, 2014, Class Action Law Reporter
 

Following a significant Supreme Court decision eliminating the defense-friendly “presumption of prudence” in Employee Retirement Income Security Act (ERISA) cases, the Fifth Circuit has revived a lawsuit against BP, P.L.C., by employees who suffered financial losses when their BP stock plummeted after the Deepwater Horizon oil spill.


Plaintiff’s experts were improperly excluded in contaminated baby formula case

JULY 8, 2014, PLLR E-Newsletter
 

The Eighth Circuit has ruled that a trial court abused its discretion in disqualifying the plaintiff experts’ opinions, which blamed an infant’s permanent brain damage on contaminated formula. The case will now go to trial.


Plaintiff attorneys say Halliburton will make defendants’ burden heavier

JULY 1, 2014 Class Action Law Reporter
 

Despite the defense bar’s comments to the contrary, plaintiff attorneys consider the Supreme Court’s recent ruling in Halliburton Co. v. Erica P. John Fund, Inc., to be a significant victory for investors because the Court not only declined to overrule the fraud-on-the-market doctrine but also said defendants must prove there was no price impact.


Parents of teen killed in car crash claim stores sold alcohol to minor despite notice he was underage

JUNE 24, 2014, Motor Vehicle Law Reporter
 

The parents of a teenager killed when her intoxicated boyfriend crashed his car have sued two convenience stores, alleging they illegally sold alcohol to a minor despite warnings that he was under 21 on his fake driver’s license and in a database.


Device used in gynecological surgeries could spread cancer

JUNE 19, 2014, Trial News
 

As many as two dozen products liability cases have been filed against manufacturers of laparoscopic power morcellators, which are used to slice and remove uterine fibroids. Plaintiffs allege the devices can spread a dangerous hidden cancer from the uterus to other parts of the body.


VA has long known of deadly delays for sick and injured veterans

JUNE 17, 2014, PNLR E-Newsletter
 

Recent revelations about Department of Veterans Affairs (VA) hospitals’ systemic efforts to hide long waiting times for veterans’ health care appointments have shocked the public, but government reports and whistleblower accounts show the VA has known for years that patients are dying as they wait for care.