Justia Products Liability Opinion Summaries

Plaintiff was taking a testosterone replacement therapy drug (“TRT”) called Androderm when he suffered a heart attack. The resulting lawsuits against TRT-producing pharmaceutical companies were consolidated as multidistrict litigation (“MDL”), and Plaintiff filed his lawsuit as part of that MDL. When Defendant Actavis, the company that produces Androderm, reached a global settlement with most of the MDL plaintiffs, Plaintiff opted to take his case to trial. Plaintiff’s attorney filed a motion for a new trial, alleging that Actavis had intentionally withheld evidence to protect its defense strategy against Plaintiff. Plaintiff’s attorney received the last documents in a months-overdue discovery production for another Androderm case in the MDL on which he was also lead counsel. These documents included a previously undisclosed letter from the Food and Drug Administration (“FDA”) requiring Actavis to conduct a trial to study a potential causal link between Androderm and high blood pressure. The district court denied the motion, holding that the evidence did not warrant a new trial.The Seventh Circuit affirmed, holding that the FDA letter would probably not have resulted in a verdict in Plaintiff’s favor. The court explained that even if the high blood pressure evidence had been more important to the trial, the considerations highlighted in Marcus make clear that the FDA study would not have made a new outcome probable. Removing Actavis’s blood pressure argument would leave seven alternative causes for Plaintiff’s heart attack. And the significance of Plaintiff’s blood pressure had already been undercut throughout trial. Taken together, the introduction of the FDA letter simply would not make a different outcome probable. View "Brad Martin v. Actavis Inc." on Justia Law

Plaintiff filed a class action lawsuit against Walmart in the Circuit Court for St. Louis County, Missouri. Plaintiff alleged Walmart engaged in misleading and deceptive marketing practices by selling cough suppressants with dextromethorphan hydrobromide (“DXM”) and a “non-drowsy” label. Walmart removed the case to the Eastern District of Missouri, and Plaintiff moved to have the case remanded to state court. The district court remanded, finding Walmart had not met the Class Action Fairness Act’s jurisdictional requirement of showing the amount in controversy exceeds $5 million.
The Eighth Circuit reversed, finding that Walmart has shown the amount in controversy exceeds $5 million.  The court concluded that Walmart’s declaration was sufficient to support a finding that sales exceeded $5 million. The total amount of sales can be a measure of the amount in controversy. The court explained that the declaration was sufficient, particularly when it is very plausible that a company the size of Walmart would have sold more than $5 million in cough suppressants in the state of Missouri over a period of five years. View "Nicholas Brunts v. Walmart, Inc." on Justia Law

Along with her husband, Plaintiff initiated a civil action against Ethicon, Inc. — the manufacturer and seller of the TVT mesh — and its parent company, Johnson & Johnson. Plaintiffs pursued numerous claims for relief, including a strict product liability claim alleging a design defect in the TVT, as well as a claim for negligent design thereof. Plaintiff’s husband joined in the lawsuit by suing for loss of consortium. Plaintiffs filed their lawsuit in the Southern District of West Virginia as part of a multidistrict litigation captioned (the “MDL”).   The Fourth Circuit availing itself of the privilege afforded by the State of West Virginia through the Uniform Certification of Questions of Law Act requested that the Supreme Court of Appeals of West Virginia exercise its discretion to resolve the following certified question of law:Whether Section 411 of the West Virginia Pattern Jury Instructions for Civil Cases, entitled “Design Defect — Necessity of an Alternative, Feasible Design,” correctly specifies Plaintiff’s burden of proof for a strict liability design defect claim pursued under West Virginia law. More specifically, whether a plaintiff alleging a West Virginia strict liability design defect claim is required to prove the existence of an alternative, feasible product design — existing at the time of the subject product’s manufacture — in order to establish that the product was not reasonably safe for its intended use. And if so, whether the alternative, feasible product design must eliminate the risk of the harm suffered by the plaintiff or whether a reduction of that risk is sufficient. View "Judith Shears v. Ethicon, Inc." on Justia Law

General Motors (“GM”) installed Generation IV 5.3 Liter V8 Vortec 5300 LC9 engines (“Gen IV engine”) in seven different GMC and Chevrolet trucks and SUVs in model years 2010 to 2014 (the “affected vehicles”). In 2016, representatives from various States filed a putative class action alleging that the affected vehicles contain a defect that causes excess oil consumption and other engine damage (the “oil consumption defect”). Plaintiffs appealed only the dismissal of their Missouri Merchandising Practice Act (MMPA) claim, stating that “the sole issue presented on appeal is whether the district court improperly applied the concept of puffery to  their deceptive omissions claims under the MMPA.”   The Eighth Circuit reversed the dismissal of the MMPA claims. The court concluded that advertising “puffery” does not affect an MMPA claim based on omission of a material fact, at least in this case, and the court agreed that Plaintiffs’ Class Action Complaint alleges sufficient factual matter, accepted as true, to state an omissions claim to relief that is plausible on its face. View "Michael Tucker v. General Motors LLC" on Justia Law

Plaintiff bought a laptop with a manufacturer’s warranty from Target. He filed a class action on behalf of “all citizens of Arkansas who purchased one or more products from Target that cost over $15 and that were subject to a written warranty.” His theory was that Target violated the Magnuson-Moss Warranty Act’s Pre-Sale Availability Rule by refusing to make the written warranties reasonably available, either by posting them in “close proximity to” products or placing signs nearby informing customers that they could access them upon request. Target filed a notice of removal based on the jurisdictional thresholds in the Class Action Fairness Act of 2005. The district court the class action against Target Corporation to Arkansas state court.   The Eighth Circuit vacated the remand order and return the case to the district court for further consideration. The court explained that the district court applied the wrong legal standard. The district court refused to acknowledge the possibility that Target’s sales figures for laptops, televisions and other accessories might have been enough to “plausibly allege” that the case is worth more than $5 million. The district court then compounded its error by focusing exclusively on the two declarations that accompanied Target’s notice of removal. The court wrote that the district court’s failure to consider Target’s lead compliance consultant’s declaration, Target’s central piece of evidence in opposing remand, “effectively denied” the company “the opportunity . . . to establish [its] claim of federal jurisdiction.” View "Robert Leflar v. Target Corporation" on Justia Law

Fourteen women (“Plaintiffs”) from seven states brought the present putative class action against Ashley Black and her companies (“Defendants”), alleging false and deceptive marketing practices. They take issue with various representations in Defendants’ ads about a product called the FasciaBlaster, a two-foot stick with hard prongs that is registered with the Food and Drug Administration as a massager. The district court dismissed Plaintiffs’ claims in their entirety.  Plaintiffs appealed the order striking the class allegations and the dismissal of individual claims.   The Fifth Circuit found that the district court correctly struck Plaintiffs’ class allegations and properly dismissed all but two of their claims. Accordingly, the court affirmed in part, reversed in part, and remanded the case to the district court. The court explained that it agreed with the district court that Plaintiffs’ allegations suffer from a combination of defects, including a failure to plead adequately what representations were actually made when those representations were made, who made the representations, and where those representations occurred.   However, the court reversed the dismissal of Plaintiffs’ breach of express warranty under, respectively, California Consumer Code Sections 2313 & 10210, and Florida Statutes Sections 672.313 & 680.21. The court wrote that the district court did not apply the law of a specific jurisdiction when conducting its analysis. Plaintiffs on appeal cite various Fifth Circuit cases in addition to Texas and California state law precedents. Defendants proffer Fifth Circuit, California, and Florida precedents. Neither party, however, briefed what law should be applied to each claim. View "Elson v. Black" on Justia Law

After Plaintiff-appellant David Salazar bought Walmart, Inc.’s “Great Value White Baking Chips” incorrectly thinking they contained white chocolate, he filed this class action against Walmart for false advertising under various consumer protection statutes. The trial court sustained Walmart’s demurrers without leave to amend, finding as a matter of law that no reasonable consumer would believe Walmart’s White Baking Chips contain white chocolate. The thrust of Salazar's claims was that he was reasonably misled to believe the White Baking Chips had real white chocolate because of the product’s label and its placement near products with real chocolate. Salazar also alleged that the results of a survey he conducted show that 90 percent of consumers were deceived by the White Baking Chips’ advertising and incorrectly believed they contained white chocolate. “California courts . . . have recognized that whether a business practice is deceptive will usually be a question of fact not appropriate for decision on demurrer. ... These are matters of fact, subject to proof that can be tested at trial, even if as judges we might be tempted to debate and speculate further about them.” After careful consideration, the Court of Appeal determined that a reasonable consumer could reasonably believe the morsels had white chocolate. As a result, the Court found Salazar plausibly alleged that “‘a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled’” by the chips' advertising. Judgment was reversed and the matter remanded for further proceedings. View "Salazar v. Walmart, Inc." on Justia Law

After Plaintiff-appellant David Salazar bought Target Corporation’s White Baking Morsels incorrectly thinking they contained white chocolate, he filed this class action against Target for false advertising under various consumer protection statutes. Salazar claimed he was reasonably mislead to believe the White Baking Morsels had real white chocolate because of the product’s label, its price tag, and its placement near products with real chocolate. To support his position, Salazar alleged that the results of a survey he conducted showed that 88 percent of consumers were deceived by the White Baking Morsels’ advertising and incorrectly believe they contained white chocolate. He also alleged that Target falsely advertised on its website that the “‘chocolate type’” of White Baking Morsels was “‘white chocolate,’” and placed the product in the “‘Baking Chocolate & Cocoa’” category. Target demurred to all three claims on the ground that no reasonable consumer would believe the White Baking Morsels contained real white chocolate. Target also argued that Salazar lacked standing to assert claims based on Target’s website because he did not view the website and did not rely on its representations. The court sustained Target’s demurrer without leave to amend and entered judgment for Target. “California courts . . . have recognized that whether a business practice is deceptive will usually be a question of fact not appropriate for decision on demurrer. ... These are matters of fact, subject to proof that can be tested at trial, even if as judges we might be tempted to debate and speculate further about them.” After careful consideration, the Court of Appeal determined that a reasonable consumer could reasonably believe the morsels had white chocolate. As a result, the Court found Salazar plausibly alleged that “‘a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled’” by the White Baking Morsels’ advertising. Judgment was reversed and the matter remanded for further proceedings. View "Salazar v. Target Corp." on Justia Law

Hamer underwent open-heart surgery using LivaNova’s 3T Heater-Cooler System. He developed an infection in the incision, which his physicians suspected stemmed from a non-tuberculosis mycobacterium (NTM). The hospital had experienced an outbreak of NTM infections in other patients who had undergone surgery using the 3T System. Hamer’s treatment team never isolated NTM from any of the swabs or cultures. Hamer, alleging that his treatment caused him lasting injuries, filed suit under the Louisiana Products Liability Act (LPLA) for failure to warn and inadequate design.Hamer’s case was transferred to Multidistrict Litigation case 2816, along with other cases alleging damages from the NTM infection caused by the 3T System. Case Management Order 15 (CMO 15) required plaintiffs to show “proof of NTM infection” through “positive bacterial culture results.” Hamer did not comply but opposed dismissal, claiming he had stated a prima facie claim under Louisiana law and sought remand.The Third Circuit reversed the dismissal. The court could have dismissed Hamer’s claims without prejudice, could have suggested remand, or could have dismissed Hamer’s claims with prejudice, if it found that Hamer had not stated a prima facie case under Louisiana law. .Under the LPLA, Hamer’s facts might state a prima facie case for defective design. Hamer’s allegations may diverge from those of other cases in MDL 2816 in which an NTM infection was verified but stating alternative theories of liability cannot justify foreclosing his claims. View "Hamer v. LivaNova Deutschland GMBH" on Justia Law

In 2005-2006, GM changed the dashboard used for GMT900 model cars from a multi-piece design to a single-piece design, which made the dashboard prone to cracking in two places. Plaintiffs, from 25 states, alleged that GMT900 vehicles produced in 2007-2014 contained a faulty, dangerous dashboard and that GM knew of the defective dashboards before GTM900 vehicles hit the market. The complaint contained no allegation that any of the plaintiffs have been hurt by the allegedly defective dashboards. The complaint, filed on behalf of a nationwide class, alleged fraudulent concealment, unjust enrichment, and violations of state consumer protection statutes and the Magnusson-Moss Warranty Act.The Sixth Circuit affirmed the dismissal of the case. At worst, Plaintiffs suffered only cosmetic damage and a potential reduced resale value from owning cars with cracked dashboards. Although the plaintiffs claimed that routine testing, customer complaints, and increased warranty claims alerted GM to the defective dashboards and accompanying danger, that is not enough to survive a motion to dismiss without specifics about how and when GM learned about the defect and its hazards, and concealed the allegedly dangerous defect from consumers. Even accepting that GM produced defective vehicles, under the common legal principles of the several states, the plaintiffs must show that GM had sufficient knowledge of the harmful defect to render its sales fraudulent. View "Smith v. General Motors LLC" on Justia Law