The Appellate Strategist

The Appellate Strategist

Insights on appellate issues, trial consultations, and evaluating appeals

Category Archives: Products Liability

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Testing Liability: The Legacy of Brown v. Superior Court in Products Liability

Posted in California, Products Liability
Now over 25 years old, Brown v. Superior Court established a significant precedent regarding medical products liability, and products liability generally. In addition to its specific holdings, Brown has been credited with articulating the three separate theories of products liability—manufacturing defect, design defect, and failure to warn—at a time when these were often lumped into… Continue Reading

“I’ll Tell You What Really Happened”: In the 6th Circuit, Experts Can Contradict Their Clients’ Testimony

Posted in Products Liability
The weight of expert testimony in product liability cases can hardly be overstated. Because complex questions of scientific and medical causation often hold sway, juries are thirsty for someone to tell them what the evidence means, and thus the inevitable “battle of the experts” ensues. But what happens when an expert tells the jury that the physical… Continue Reading

Khasin v. Hershey: Unduly Narrowing the Preemptive Scope of Pom Wonderful

Posted in Products Liability
As we have briefly explored here, the Ninth Circuit has broadly construed Buckman implied preemption of state law claims pertaining to food, drugs, and medical devices, which are regulated under the federal Food, Drug, and Cosmetic Act (“FDCA”). Of particular note, the court held in PhotoMedex that Buckman “limits the ability of a private plaintiff to pursue… Continue Reading

Rosa v. TASER Int’l, Inc.: Keeping Hindsight Bias Out of Failure-to-Warn Claims

Posted in Products Liability
The Ninth Circuit has provided product manufacturers some potent ammunition in their ongoing efforts to keep hindsight bias from infecting the scope of their constructive knowledge in failure-to-warn claims. In defending such claims, manufacturers often struggle to define what risks associated with their products were “knowable” from the scientific literature (and thus within the scope of… Continue Reading

Self-Contradictory Testimony Does Not Necessarily Create A Triable Issue of Fact Requiring Denial of Summary Judgment

Posted in Asbestos, California, Products Liability
It is not uncommon for a deposition witness testifying regarding critical events to make somewhat inconsistent statements under direct- and cross-examination.  For decades California trial courts have denied summary judgment motions on the ground that such inconsistencies create triable issues of fact that must be resolved by juries.  The lower courts cite two California Supreme… Continue Reading

California Supreme Court Hears Argument in Pivotal Asbestos Product Liability Case

Posted in Asbestos, California, Products Liability
The California Supreme Court heard oral argument in O’Neil v. Crane Co. The Court’s decision will likely define an important area of strict products liability law in California – specifically, it will expand or limit the duty of product manufacturers to warn about the hazards of replacement parts made by others that are subsequently incorporated by… Continue Reading

Supreme Court Holds Seatbelt Suits Not Pre-empted

Posted in Products Liability
The Supreme Court recently decided that Federal Motor Vehicle Safety Standard 208 (FMVSS 208), which requires auto manufacturers to install lap-and-shoulder seatbelts on seats next to a vehicle’s door frames, but allows manufacturers to choose between simple lap belts or lap-and-shoulder belts for rear inner seats (such as middle seats or those next to a… Continue Reading

Supreme Court Sides with Vaccine Manufacturers in Bruesewitz v. Wyeth LLC

Posted in Products Liability
The Supreme Court, voting 6-2, ruled on Tuesday that the National Childhood Vaccine Act of 1986 (NCVIA or Act) bars state-law product liability claims against vaccine manufacturers.  [See Bruesewitz v. Wyeth LLC, FKA Wyeth, Inc. .pdf]. The Act, designed to ensure a stable vaccine supply by limiting vaccine manufacturers’ potential tort liability, created a special,… Continue Reading

California Supreme Court Establishes Economic Injury Threshold for Unfair Competition and False Advertising Claims

Posted in Class Actions, Products Liability
The California Supreme Court has declared that “labels matter,” and that under California’s Unfair Competition Law, a consumer’s subjective sense of feeling duped translates to a cognizable economic injury. The Court’s majority opinion in Kwikset Corporation v. Superior Court (.pdf), issued today, January 27th, held that plaintiffs “who can truthfully allege they were deceived by… Continue Reading

Indiana Supreme Court Reaffirms Economic Loss Rule

Posted in Commercial Law, Mass Torts, Products Liability
In late March, I blogged on an important new case from the Tenth Circuit reaffirming the economic loss rule.  Last week, the Indiana Supreme Court handed down a major decision in a construction case, reaffirming this important principle of business law. According to the economic loss rule, where a plaintiff has suffered merely economic loss –… Continue Reading

Keeping Tort Out of a Business Dispute: The Tenth Circuit and the Economic Loss Rule

Posted in Products Liability
In law school, it seemed simple enough: business relationships were generally governed by contract and warranty, and tort was reserved for conduct that hurt people or damaged property. But in practice, the line is constantly shifting: the plaintiffs’ bar – often aided by state legislatures – tries to turn routine business disputes into torts, while the… Continue Reading