BSCR Firm News/Blogs Feed

Right to Repair Laws: An Overview and Legislative Update

09 Apr 2024

ABSTRACT: As manufacturers seek to limit the ability of consumers and third parties to repair their products, state and federal legislators introduce "right to repair" legislation that would loosen those restrictions.

Repairing complicated digital equipment has become increasingly difficult in recent years. In most instances, a consumer in need of a repair of any digital equipment has few, if any, choices for where and how the equipment is repaired. The original equipment manufacturer (OEM) will typically only offer the tools, parts, and information necessary to make those repairs through the OEM itself or a licensed dealer. As a result, consumers and independent repair providers lack the tools and expertise necessary to make these repairs. Further, many products’ warranties are voided if a piece of equipment is repaired by someone other than the OEM or an officially licensed dealer.

There is now a growing effort to enact “right to repair” laws to give consumers more flexibility to repair their own equipment. Generally, these laws grant consumers and independent repair companies access to the tools, parts, documentation, and software required to diagnose, maintain, and repair certain types of equipment. These laws typically require the OEM to provide manuals with specifications, schematics, and software updates to consumers at no cost, to allow the devices to be repaired without voiding the warranty, and to give independent repair companies access to the same tools and repair parts as the OEM on “fair and reasonable terms.” These laws are primarily introduced in the digital equipment industry (typically defined as anything requiring a computer chip), motor vehicles, and the agricultural and construction equipment industry. There have also been attempts to introduce similar legislation covering medical equipment, wheelchairs, educational devices, and motorcycles.

Proponents of these bills argue these laws provide consumers with more freedom to repair their own equipment or choose their own repair shop. They further argue these laws will drive repair costs down by increasing competition and will reduce electronic waste. The opponents of these laws, including the OEMs themselves, argue providing detailed specifications and schematics to consumers and third-party repair companies would reveal valuable trade secrets and proprietary information. They argue this would disincentivize innovation, research, and development of new products. Further, allowing the consumer full repair and maintenance access could lead to modifications that would make the product unsafe or non-compliant with applicable safety or emissions regulations, potentially leading to more injuries or liability to the OEMs.

To date, six states have passed right to repair laws. Massachusetts was the first, passing a motor vehicle right to repair law in 2012 and another in 2020, which required vehicle manufacturers to provide a standardized open data platform to vehicle owners and independent repair facilities. Since 2022, Colorado, New York, Minnesota, Maine, and California have passed various right to repair laws. Currently, approximately twenty-seven states have some form of a right to repair law introduced or pending.

Federal efforts to pass right to repair laws have so far been unsuccessful, although one bill is still active. Rep. Joseph Morelle (D-NY) introduced the “Fair Repair Act,” which would apply to digital electronic equipment, in June 2021. It was referred to the House Energy and Commerce Committee in June 2021 and died shortly thereafter. Sen. Ben Ray Lujan (D-NM) introduced the Fair Repair Act to the Senate in March 2022. As with the House bill, it was referred to committee, where it did not advance. Most recently, Rep. Neal Dunn (R-FL) introduced the “Right to Equitable and Professional Auto Industry Repair Act” or “REPAIR ACT”, seeking to require motor vehicle manufacturers to provide the vehicle’s owner with direct, real-time data related to diagnostics, repair, service, wear, and calibration of parts and systems of the vehicle. It has 50 bipartisan co-sponsors. It was referred to the House Energy and Commerce Committee, where it was most recently forwarded to the full committee for a voice vote in November 2023. The result of that vote has not been reported.

Missouri, Kansas, or Illinois have yet to pass any right to repair legislation. Certain Missouri legislators have attempted to pass these bills on multiple occasions. House Bill No. 975, introduced by Rep. Barry Hovis (R-Cape Girardeau County), would have guaranteed the right to repair any “construction machinery, any mobile heavy equipment or heavy machinery designed for construction or earthwork tasks[.]” The bill was introduced in January 2021 and died in committee in May 2021. Rep. Hovis re-introduced the same bill two more times, HB 2402 and HB 698, in January 2022 and January 2023, respectively. They suffered the same fate, dying in committee shortly thereafter. The Missouri Chamber of Commerce and Industry, a private organization, officially spoke out against HB 2402, arguing it would “threaten [agricultural equipment manufacturers and dealers] security, intellectual property and warranty agreements—not to mention opening them up to undue liability.” Missouri Senator Tracy McCreery (D-St. Louis County) introduced Senate Bill 554 in January 2023. Senate Bill 554 was significantly broader than the house bills, covering all electronic equipment. This also died in committee in May 2023.

Missouri currently has five proposed right to repair bills: 1) HB 1618, introduced by Rep. Brian Seitz (R-Taney County), would protect the right to repair any products “that depend on digital electronics embedded in or attached to them” (excluding motor vehicles); 2) HB 2041, introduced by Rep. Emily Weber (D-Jackson County), would guarantee consumers the same rights to diagnostic and repair information as independent repair providers and authorized repair providers for any electronic product; 3) HB 2475, introduced by Rep. Hovis, seeks the same protections as his earlier bills; 4) SB 1472, introduced by Sen. McCreery, seeks the same protections as her prior SB 554; and 5) HB 2800, a motorcycle right to repair bill introduced by Rep. Seitz. All the proposed bills would make any violation an unlawful practice under the Merchandising Practices Act. These bills are currently in committee and have not received a vote.

Illinois also has active right to repair laws pending. Illinois SB 2669, introduced by Sen. Jill Tracy (R-Quincy), seeks to protect the right to repair agricultural equipment. It was introduced in January 2024 and is currently awaiting committee assignment. Similarly, SB 2680, introduced by Sen. Laura Fine (D-Glenview), was introduced in January 2024 and is awaiting committee assignment. It seeks to guarantee the right to repair home electronic products or appliances. On the House side, Rep. Michelle Mussman (D-Schaumburg) introduced three right to repair bills in February 2023. HB 3593 seeks to guarantee the right to repair digital electronic equipment. HB 3601 looks to protect the right to repair educational technology, and HB 3602 seeks to protect the right to repair electronically powered wheelchairs. All three of these bills are currently in committee and have yet to receive a vote. Similar to the Missouri bills, the Illinois bills make any violation an unlawful practice under Illinois’s Consumer Fraud and Deceptive Business Practices Act.

Kansas does not currently have any right to repair laws proposed or pending. The most recent attempt was House Bill No. 2122, introduced as a committee bill by the Committee on Federal and State Affairs. It was introduced in January 2017 and ultimately died in committee in May 2018. There have been no official attempts to introduce any right to repair laws since.

As these laws are still relatively new, the total effect they may have on repair prices, competition, and liability remains to be seen.

Year End Review: 2023 Product Liability Developments

03 Jan 2024

ABSTRACT: Our year-end review of significant 2023 jury verdicts and decisions in product liability cases, primarily in the Midwest (more specifically Illinois, Kansas, and Missouri), as well as noteworthy U.S. Supreme Court and national cases and/or issues.

This Baker Sterchi year-end review focuses on significant 2023 jury verdicts and decisions in product liability cases, primarily in the Midwest (more specifically Illinois, Kansas, and Missouri). It also addresses noteworthy U.S. Supreme Court and national cases. Here is a non-exhaustive rundown of product liability cases that deserve attention, and some cases and/or issues to watch for in 2024.

U.S. SUPREME COURT

1. General Personal Jurisdiction Expanded

To the dismay of corporate defendants, the Supreme Court has lowered the bar for establishing general personal jurisdiction. Specifically, in Mallory v. Norfolk Southern Railway Co., 600 U.S. 122 (2023), the Court held that companies can be sued in states where they have registered to do business and do substantial business, even if the alleged injuries happened in other places.

In Mallory, a Virginia plaintiff sued his former employer, Norfolk Southern Railway, in Pennsylvania, where Norfolk was registered to do business, even though the plaintiff’s alleged injuries due to on-the-job exposure to toxic chemicals occurred in other places (Virginia and Ohio). The Pennsylvania Supreme Court dismissed the case, striking down Pennsylvania’s long-arm statute that gave the state courts jurisdiction over out of state corporations registered to do business there, holding that the statute violated defendants’ 14^th Amendment due process rights. The U.S. Supreme Court granted certiorari, to address whether an out-of-state corporation that has registered to do business in the State (as required by law) and does substantial business there, is subject to personal jurisdiction in any lawsuits brought there, even though the alleged injury occurred elsewhere. The U.S. Supreme Court reversed the Pennsylvania Supreme Court ruling, holding that the state’s long-arm statute did not violate due process.

If you are reading this and thinking – where’s the product liability claim? – you are correct. There is none in this case, but the Court’s ruling is significant and will likely have far reaching effects in many different types of cases, including product liability matters. Mallory constitutes a departure from the Court’s previous test for general personal jurisdiction, as outlined in Goodyear Dunlop Tires Operations SA v. Brown, 564 U.S. 915 (2011). There, the Court had held that a corporate defendant was subject to such jurisdiction if its affiliations with the state were substantial enough to render them “essentially at home in the forum state,” which generally had not included simply being registered to do business in a state without further substantial contacts. Mallory appears to expand the general personal jurisdiction threshold, and open the doors to future fights over the application of general personal jurisdiction.

However, defendants still have various avenues for defending against the jurisdictional over-reaching, depending on the specific language of state personal jurisdiction laws and how their courts interpret them. Baker Sterchi wrote about the potential impacts in a blog earlier this year here. As discussed, it appears that the Illinois and Missouri corporate registration statutes do not act as consent to jurisdiction; thus, the Mallory case does not appear to change jurisdiction law in those states. However, Kansas’ statute is premised upon consent through registration; thus, the Mallory case does appear to foreclose future challenges to jurisdiction on due process grounds.

2. Ghost Guns Must Be Traceable

In October 2023, the U.S. Supreme Court, in Garland v. Blackhawk Mfg. Group., Inc., vacated a Texas federal court’s order that had exempted two distributors of “ghost guns” (i.e., firearms without serial numbers) from a federal rule that would require the weapons be made traceable. This means that companies must comply with the federal rule while its validity is taken up in the courts.

As background the U.S. Supreme Court granted the Biden administration’s emergency request to vacate the district court order, which would allow the subject distributors, Defense Distributed and Blackhawk Manufacturing Group Inc., to continue to sell ghost guns without complying with a new Bureau of Alcohol, Tobacco, Firearms and Explosives rule. The distributors argued that they would be “irreparably harmed” if required to comply – in this case, compliance would mean obtaining licenses, marking products with serial numbers, keep records of transactions, and perform background checks for all transactions. In a different lawsuit, an insurer has sought to deny coverage to a manufacturer accused of selling unfinished firearm frames to build ghost guns. That litigation is ongoing, but also signals that legal issues surrounding ghost guns are only beginning.

MIDWEST COURTS (IL, KS, MO)

1. Illinois

a. Recalled Abbott Infant Formula MDL

While the Similac infant formula Multi-District Litigation involving Illinois company Abbott Laboratories remains ongoing in Illinois federal court, the economic claims of parents in the MDL were dismissed in May. In the MDL, parents brought suit against Abbott alleging that its baby formula caused a deadly illness in premature babies. Specifically, the plaintiffs alleged they were harmed economically due to purchasing the baby food, but the Court found that because the parents did not allege that all infant formula made by Abbott was contaminated or what percentage was contaminated, there could be no argument of lost benefit of the bargain. In November, Abbott filed a further motion to dismiss, focusing on the plaintiffs’ unjust enrichment claim, arguing that it is not directly implicated in the MDL inasmuch as Abbott’s alleged actions benefited third-party resellers, as opposed to the company itself. That Motion is still pending. The MDL case is In re: Recalled Abbott Infant Formula Products Liability Litigation, case number 1:22-cv-04148, in the U.S. District Court for the Northern District of Illinois.

2. Kansas

a. Product Liability Claims Barred Due To Illegal Conduct

For the first time, a Kansas federal district court applied Kansas’ illegality defense to bar plaintiff’s product liability claims due to underlying illegal conduct of a decedent in a wrongful death case. Specifically, in Messerli v. Aw Distrib., Inc., the Court found that the illegality defense (in pari delicto) barred the claims where the decedent inhaled toxic vapors from computer duster canisters, which was also alleged in the complaint as a violation of Kansas law. The decedent’s father filed suit against four entities who designed and manufactured the computer dusters that the decedent allegedly and repeatedly inhaled until he died from intoxication. Dismissing the case, the Court found that the complaint alleged that the decedent “freely and voluntarily consented to participate in” illegal acts prohibited by Kan. Stat. Ann. § 21-5712 and that the decedent’s illegal acts cause his injuries which had a casual connection to all of plaintiff’s causes of action. Baker Sterchi wrote in detail about this case and its implications in both Kansas and Missouri here with an update here where the plaintiff was denied review of the dismissal. However, the plaintiff may seek review at the Tenth Circuit.

3. Missouri

a. $2.35 Million Verdict for Exploding Vaping Device

In St. Charles, Missouri, a jury awarded more than $2.35 million to a plaintiff in a failure to warn claim for injuries due to an exploding battery within his vaping device. The plaintiff alleged that the battery was mislabeled and lacked a device to prevent it from overheating and that the manufacturer failed to warn about the hazard. The defense had argued that the plaintiff failed to prove the battery caused the plaintiff’s injuries and failed to show evidence that the defendant was on notice of these issues. The case is Bryan Durham v. Lightfire Holdings LLC, dba Kanger Wholesale USA, Case No. 1811-CC00938.

b. $1.25 Million Verdict in St. Louis Monsanto Roundup Case

Roundup litigation is no stranger to the product liability circuit, and in 2023, Monsanto has seen a number of favorable trial results. But in October, a St. Louis jury awarded $1.25 million to a plaintiff claiming that his non-Hodgkin’s lymphoma was caused by exposure to Monsanto’s Roundup herbicide. Monsanto claims that the product is safe. Expect an appeal of John J. Durnell v. Monsanto Company, Case No. 1922-CC00221. Monsanto has been hit with other large verdicts across the country this year, including in Seattle, Philadelphia, and San Diego.

OTHER NOTABLE DECISIONS AND ISSUES ON THE HORIZON

1. “Forever” Chemicals

Forever chemicals, also known as “PFAS” (polyfluoroalkyl substances), have been a hot topic this year, as the U.S. Environmental Protection Agency has ramped up its action against these chemicals that are claimed to linger in the environment and the human body. In January 2023, the EPA proposed a ban on more than 300 PFAS. In March, the EPA proposed maximum levels for such chemicals in drinking water – only four parts per trillion. In August, the EPA proposed listing various PFAS as hazardous substances under the Resource Conservation and Recovery Act.

Recently, the Sixth Circuit reversed class certification and ordered dismissal of the case of a statewide class of all 11.8 million people residing in the state of Ohio, who were alleged to have PFAS in their blood. The Court of Appeals held that plaintiff did not properly allege standing because all his allegations were about “Defendants” as an undifferentiated group and he failed to allege that any particular defendant harmed him. The Sixth Circuit’s sentiments were made clear in the first three sentences of its Opinion: “Seldom is so ambitious a case filed on so slight a basis. The gravamen of Kevin Hardwick’s complaint is that his bloodstream contains trace quantities of five chemicals—which are themselves part of a family of thousands of chemicals whose usage is nearly ubiquitous in modern life. Hardwick does not know what companies manufactured the particular chemicals in his bloodstream; nor does he know, or indeed have much idea, whether those chemicals might someday make him sick; nor, as a result of those chemicals, does he have any sickness or symptoms now.”

2. Social Media MDL

An MDL involving Facebook and several other social media platforms (including, Instagram, TikTok, and YouTube) is moving forward in the Northern District of California. The MDL is a combination of at least 28 suits that were filed across 17 federal district courts in the United States, with potentially more related actions to come as tag-alongs in the future. The plaintiffs allege that the defendant companies have purposefully made their respective social media platforms addictive to increase user engagement, which has been deleterious to young people’s mental health. The MDL case is In re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, Case No. 4:22-md-03047.

3. 3M Agrees to Pay $6 Billion to Settle Ear Plug Lawsuits

In August, 3M Company agreed to settle lawsuits, without admission of liability, brought by U.S. military veterans and service members making claims of hearing loss from using the company’s earplugs – in the total amount of $6.01 billion. Prior to this agreement, 3M unsuccessfully attempted to move the lawsuits into bankruptcy court. Read more here on the settlement and here for past BSCR blog posts on these lawsuits.

4. National Opioid Settlements

Various settlements have been reached in the nationwide opioid litigation, including with major corporate defendants Teva, Allergan, CVS, Walgreens, and Walmart. However, the nationwide opioid litigation remains pending against many different entities involved in drug manufacturing, distribution, marketing, and sales.

5. JUUL 2

JUUL, the manufacturer of vaping products, filed an application for a new vaping device, JUUL2. Specifically, the company claims that this product has ways to prevent underage use and tampering with its pods. JUUL had previously been under fire for allegedly increasing youth vaping, which resulted in the company pivoting to take measures to keep its products out of the hands of youths. JUUL2 is only available in one flavor – tobacco – and the company claims it has a lower concentration of nicotine.

6. Tesla Autopilot Litigation

In California this year, Tesla successfully defended itself in state court lawsuits alleging that its vehicles’ Autopilot technology malfunctioned and caused serious injuries to the plaintiffs. The juries found no manufacturing defect in the Tesla Models at issue. However, we can expect this Autopilot litigation to heat up in other jurisdictions across the country.

As you can see, the product liability legal docket was busy throughout 2023 and will continue to be in 2024. We will be watching and look forward to reporting back next year for a complete overview, but keep an eye out for Baker Sterchi’s periodic product liability blog posts on specific issues and cases throughout the year.

Plaintiff Denied Review of Huffing Death Case Dismissal

21 Nov 2023

ABSTRACT: This post is an update to a prior blog post where we discussed a Kansas federal court dismissing a plaintiff’s product liability claims based on Kansas’s illegality defense. That case was noteworthy because it was the first time any court had applied Kansas’s illegality defense to bar product liability claims.

On June 30, 2023, Judge Crabtree of the District of Kansas dismissed product liability claims against a defendant-manufacturer based on the decedent’s illegal conduct that caused the death. A few weeks after the ruling, the remaining defendants filed identical Motions to Dismiss based on the same argument. A few weeks after that, the plaintiff filed a Motion to Certify the question to the Kansas Supreme Court.

In an October 20, 2023 ruling, the Kansas federal district court granted the remaining defendants’ Motions to Dismiss, and denied the plaintiff’s Motion to Certify, effectively ending the case, pending an appeal.

The Court noted that it had discretion whether to certify the question to the Kansas Supreme Court, based on Kansas and Tenth Circuit law, and “decisions of other states, federal decisions, and the general weight and trend of authority.” As our prior blog post described, the Court in its initial order dismissing the first defendant, did just that. It analyzed decisions from Mississippi, Michigan, Alabama, Pennsylvania, and Florida, and federal court decisions from the Tenth Circuit and the Eastern District of Kentucky and found that these cases represented the general weight and trend of authority. Thus, the Court predicted that the Kansas Supreme Court would follow suit and apply the illegality defense to plaintiff’s product liability claims.

The Court ruled that its prior decision had properly predicted the outcome, rather than certifying the question, based on the federal standards to certify questions to the appropriate state supreme court. The Court further stated that the question here was not “novel and important” enough to certify to the Kansas Supreme Court. It said, “to decipher novelty and importance, . . . this court [should] consider actions by the relevant state institutions, including those of the state supreme court and legislature.” The plaintiff had argued that the question was novel and important because of the alleged “lack of consensus in this Court and lack of guidance from the Kansas state courts.”

The Court disagreed and said that to determine whether a question is novel and important, it must decide “whether state institutions have indicated that the pertinent law is important and unsettled.” The plaintiff was unable to point to a Kansas Supreme Court case or any activity in the Kansas Legislature expressing a strong policy preference on the question at bar. Thus, the Court ruled that the Kansas illegality defense barring product liability claims was not of such novelty and importance to certify the question to the Kansas Supreme Court.

Finally, the Court considered the suspect timing of the plaintiff’s Motion to Certify. The Court found that the plaintiff could have filed the motion in the six-month window between when it was on notice that the first defendant would rely on the illegality defense, and when the plaintiff filed the Motion to Certify. After identifying Tenth Circuit precedent that “disfavors granting plaintiff’s motion directly after the district court’s adverse decision,” the Court ruled that “the plaintiff put the motion into the rarely granted and generally disapproved categories of certification questions,” because the plaintiff filed the Motion to Certify after it had lost the first Motion to Dismiss and after the other defendants moved to dismiss on the same grounds.

The Court was not done. It went on to grant the remaining defendant’s Motion to Dismiss and Motion for Judgment on the Pleadings, respectively. Because the plaintiff’s claims were “identical in composition,” and did not differentiate its allegations as against individual defendants, the illegality defense applied equally to all defendants. Thus, the illegality defense precluded the product liability claims against the remaining defendants, as well.

The plaintiff may still seek certification through an appeal to the Tenth Circuit. We will keep readers updated with further developments in this litigation.

For the First Time, Kansas Federal Court Bars Product Liability Claims Based on Plaintiff's Illegal Conduct

06 Oct 2023

ABSTRACT: Courts across the country have become increasingly reluctant to compensate victims of product liability claims when their injuries arise from the victim’s own illegal conduct. A Kansas federal court decision is the most recent installment. Will Missouri follow?

Introduction

In Messerli v. Aw Distrib., Inc., a Kansas federal district court applied Kansas’s illegality defense to bar product liability claims where the plaintiff alleged the decedent violated Kansas law by inhaling toxic vapors from computer duster canisters. Kansas courts have applied the illegality defense to bar other tort claims, but Messerli marks the first instance a Kansas federal court applied the illegality defense to bar product liability claims. Although Missouri has yet to apply an “illegality defense” to bar similar product liability claims, it could follow numerous other states that are trending in that direction.

Factual Background

The decedent began intentionally inhaling computer dusters, which are intended to remove lint and debris from computer keyboards using an odorless gas called Difluoroethane (“DFE”). Unsurprisingly, he developed an addiction to DFE, inhaling several cans of computer duster a day. Two years later, he died from DFE intoxication.

Plaintiff, the decedent’s father, filed suit against four defendants who design and manufacture computer dusters—which the decedent purportedly inhaled—alleging seven claims under Kansas law: (1) strict products liability—design defect; (2) strict products liability – failure to warn; (3) negligent design defect; (4) negligent failure to warn; (5) wrongful death; (6) breach of the implied warranty of merchantability; and (7) breach of express warranty.

One defendant, Falcon Safety Products, Inc., moved to dismiss all claims arguing the decedent’s conduct that caused his death was illegal, and that the illegality defense should apply to bar these claims caused by the decedent’s illegal conduct.

Analysis

Although never previously applied to bar product liability claims, Kansas law has long recognized an illegality defense. “Specifically, the Kansas courts have explained: ‘The illegality defense is based on the principle that a party who consents to and participates in an illegal act may not recover from other participants for the consequences of that act. The defense will be applied to bar recovery if the evidence shows that the plaintiff freely and voluntarily consented to participate in the illegal act, without duress or coercion.’”

The court in Messerli cited cases from Kentucky, Mississippi, Michigan, Alabama, Pennsylvania, and Florida, noting a significant trend in states beginning to apply the illegality defense to bar product liability claims. The policy underlying the illegality defense is that courts “won’t lend aid to a party whose cause of action directly results from an immoral or an illegal act committed by that party.” Along the same lines, the Court observed that “several other public policy goals are achieved by the doctrine including that it: (1) doesn’t condone and encourage illegal conduct, (2) prevents wrongdoers from receiving a profit or compensation as a result of their illegal acts, (3) avoids the public viewing the legal system as a mockery of justice, and (4) prevents wrongdoers from shifting much of the responsibility for their illegal acts to other parties.”

Messerli also relied on a 10th Circuit case, Inge v. McClelland, where the plaintiffs brought claims against a pharmacist who allegedly dispensed opioids to the plaintiffs, knowing the plaintiffs were abusing them. The Circuit Court affirmed the district court ruling that the plaintiff’s claims were barred based on New Mexico’s wrongful conduct doctrine. The Circuit explained that “even if the defendant pharmacist also engaged in illegal conduct, breached his duties to plaintiff, and benefited financially from the scheme, as plaintiffs argue, the pharmacist’s conduct does not negate plaintiff’s own misconduct.”

In Messerli, the court found that the complaint alleged the decedent had violated Kan. Stat. Ann. § 21-5712’s prohibition against the “unlawful abuse of toxic vapors…[by] possessing, buying, using, smelling or inhaling toxic vapors with the intent of causing a condition of euphoria, excitement, exhilaration, stupefaction or dulled senses of the nervous system… Indeed, the complaint alleges repeatedly that [the decedent] possessed, bought, used, and inhaled the toxic vapors contained in defendants’ computer dusters. And it alleges that [the decedent] committed these acts because he was addicted to the intoxicating effects of DFE.” Thus, the court held that the complaint alleged the decedent “freely and voluntarily consented to participate in” illegal acts prohibited by Kan. Stat. Ann. § 21-5712.

Lastly, the courtfound that the decedent’s illegal acts caused his injuries, and his injuries had a causal connection to all seven counts in the complaint.

Missouri Implications

Missouri courts have yet to use a similar “illegality defense” to bar products liability claims, but Missouri has adopted the in pari delicto doctrine in non-product liability cases; notably, cases involving corporate fraud. See e.g., Zayed v. Associated Bank, N.A., 779 F.3d 727 (8th Cir. 2015). The in pari delicto doctrine mandates that, “a person cannot maintain an action if, in order to establish his cause of action, he must rely, in whole or in part, on an illegal or immoral act or transaction to which he is a party.”

Based on the growing trend, it will be interesting to see if Missouri courts follow suit and extend the in pari delicto doctrine to product liability cases. We will keep our readers informed of developments in this area.

The Impact of Mallory v. Norfolk Southern R. Co. in Illinois, Missouri & Kansas

31 Jul 2023

ABSTRACT: The Supreme Court of the United States recently reaffirmed one way that courts can gain personal jurisdiction over foreign corporate entities: consent. This decision has alarmed some in the corporate community. However, the decision is narrow enough that in most jurisdictions that alarm may not be justified.

The Issue Before the U.S. Supreme Court

The question before the Court was whether 14^th Amendment due process is violated when a large out-of-state corporation with substantial operations in a State complies with a registration requirement that conditions the right to do business in that State on the registrant’s submission to personal jurisdiction in any lawsuits brought there. The United States Supreme Court vacated and remanded the decision of the Pennsylvania Supreme Court which had dismissed the lawsuit and held that Pennsylvania’s law did not violate the Due Process Clause.

Overview of the Supreme Court’s Decision

The focus of this post is to discuss Mallory’s impact on jurisdiction by consent under the corporate registration statutes in Illinois, Kansas and Missouri, where many of our clients are called upon to defend lawsuits.

In Mallory, a former employee of Norfolk Southern (NS), a company incorporated and headquartered in Virginia, resisted a suit from the former employee who contracted cancer while in employment in Ohio and filed suit in Pennsylvania. NS challenged personal jurisdiction, in part, by claiming that a Pennsylvania court’s exercise of personal jurisdiction over it would offend the Due Process Clause of the Fourteenth Amendment. The Pennsylvania Supreme Court ruled in favor of NS.

The Supreme Court reviewed the Pennsylvania Supreme Court’s decision under its century-old precedent in Pennsylvania Fire Ins. Co. v. Gold Issue Mining & Milling Co., 243 U.S. 93 (1917). The Court deemed the Pennsylvania Fire controlling, finding that the issue in Pennsylvania Fire was that “an out-of-state corporation may not do business in this Commonwealth until it registers with the Department of State.” The Court further found that the “explicit…qualification as a foreign corporation shall permit state courts to exercise general jurisdiction over a registered foreign corporation just as they can over domestic corporations.” The Virginia corporation at the time of this appeal had been a foreign corporation registered in Pennsylvania under this statute for 25 years. The Court emphasized that Pennsylvania Fire held that suits premised on such a statute do not deny a defendant due process of law. The Court did not opine as to whether any other set of facts would suffice to establish consent to suit.

The Court found that the Pennsylvania Supreme Court’s determination that Pennsylvania Fire was not to be followed due to tension with current other personal jurisdiction precedent set forth by the Supreme Court of the United States, was in error in this case. The Court emphasized that lower courts are to “follow the case which directly controls [here Pennsylvania Fire], leaving to this Court the prerogative of overruling its own decisions.”

Jurisdictional Impact of Supreme Court’s Decision

What impact will Mallory have in the jurisdictions of Illinois, Missouri, and Kansas? There are three lead cases: First from Illinois is, Aspen Am. Ins. Co. v. Interstate Warehousing, Inc., 2017 IL 121281, 90 N.E.3d 440 (2017). Second from Missouri is, State ex rel. Norfolk Southern Ry. v. Dolan, 512 S.W.3d 41 (Mo. banc 2017). Lastly from Kansas is, Merriman v. Crompton Corp., 282 Kan. 433, 146 P.3d 162 (2006).

In Aspen, the Illinois Supreme Court stated that the Illinois Business Corporation Act of 1983 and 805 of ILCS 5/1.01 “does not require foregoing corporations to consent to general jurisdiction as a condition of doing business at Illinois.” Aspen, 90 N.E.3d at 447. The corporate registration statute in Illinois as interpreted by its highest court is materially different than the sister statute in Pennsylvania. In Illinois, when a corporation registers to business within that state’s borders it is not an expression of consent to general personal jurisdiction and the due process analysis is required.

In State ex rel. Norfolk Southern Ry., the Missouri Supreme Court found that the Missouri statute controlling foreign corporate registration also does not require the consent to suit over activities not related to Missouri. In this case the Court reviewed Mo. Rev. Stat. 351.594.1 which states, “the registered agent of a foreign corporation authorized to transact business in this state is the corporation’s agent for service of process, notice, or demand required or permitted by law to be served on the foreign corporation.” The Court went on to explain the impact the statute has on foreign corporations jurisdictionally, by stating, “the plain language of Missouri’s registration statutes does not mention consent to personal jurisdiction for unrelated claims, nor does it purport to provide an independent basis for jurisdiction over foreign corporations.” Norfolk Southern, 512 S.W.3d at 52. Additionally, the Court was not compelled to determine the constitutionality of general jurisdiction under the registration statutes because “whether Missouri’s registration statutes constitutionally could condition doing business in Missouri on consent to general jurisdiction…is a question of interpretation of the instrument in which the consent is expressed and of the statute, if any, in pursuance of which the consent is given.” Id.

In Merriman, the Kansas Supreme Court analyzed K.S.A. 17-7301[now codified as 17-7931] and 17-7307 providing the interpretation of the statutes as they apply to foreign corporations registered to do business in the State of Kansas. First the Court noted that K.S.A. 17-7301 “requires foreign corporations wishing to do business in Kansas to file an application for authority including an irrevocable written consent of the foreign corporation that actions may be commenced against it in the proper court of any county where there is proper venue by service of process on the secretary of state.” Merriman, at 443. The Court then stated that “K.S.A. 17-7301(b)(7) requires, a consent to personal jurisdiction. Thus, a foreign corporation applying for authority to do business in Kansas under the statute expressly consents to personal jurisdiction and the statute provides a statutory basis for jurisdiction.” Merriman, 282 Kan. at 445.

The corporate registration statutes in Illinois and Missouri comport with those in the majority of jurisdictions that do not act as consent to jurisdiction. As such, Mallory does not change jurisdiction law in those states. However, Mallory could have an impact should the legislature in those states decide to change the corporate registration statutes to provide for consent to general jurisdiction of their courts as a result of Mallory. In Kansas, whereby statute personal jurisdiction is premised upon registration, the Mallory decision would appear to foreclose future challenges to jurisdiction on due process grounds, where a business has registered and hence consented to personal jurisdiction in the state.

* Kaleb McKinnon, 2023 Summer Law Clerk, assisted in the research and drafting of this post. McKinnon is a rising 3L student at Drake University Law School.

ICYMI: A Proposed New Rule for Managing Multidistrict Litigation Is Making Its Way Through The Approval Process

11 May 2023

ABSTRACT: The Advisory Committee on Civil Rules recently proposed a new rule to create a framework for courts managing multidistrict litigation, also known as MDLs. Historically, there has been no reference to multidistrict litigation in the Federal Rules of Civil Procedure, creating the impetus for Proposed New Rule 16.1, which is designed to provide a framework for the initial management of MDL proceedings.

Multidistrict litigation (“MDL)” is increasingly on the rise. MDLs are utilized in an effort to consolidate discovery and case management in various lawsuits, such as in toxic tort and product liability matters, that involve the same subject matter, but are filed in different jurisdictions. The Multidistrict Litigation Act, 28 U.S.C. § 1407 empowers the Judicial Panel on Multidistrict Litigation to transfer one or more actions for coordinated or consolidated pretrial proceedings, which promotes efficient conduct of those actions.

However, there can be hundreds of MDLs pending at any one time, each focusing on the consolidation of thousands of claims. Recent high-profile MDLs include National Prescription Opioid Litigation (MDL 2804), In Re: Zantac (Ranitidine) Products Liability Litigation (MDL 2924), In Re: Roundup Products Liability Litigation (MDL 2741), and In re: Juul Labs, Inc., Marketing, Sales Practices, and Products Liability Litigation (MDL 2913). Curiously, however, the Federal Rules of Civil Procedure (“FRCP”) do not contain a formal rule that provides uniform practice and procedure in the MDL setting.

To address this, the Advisory Committee on Civil Rules recently proposed the first FRCP to specifically govern the initial management of MDLs, Proposed New Rule 16.1. The Advisory Committee, a subcommittee of the Judicial Conference Committee on Rules of Practice and Procedure (“the Conference”), studies the FRCP and proposes changes to the rules. It is the Conference that recommends changes of the FRCP to the United States Supreme Court. Upon review and approval, the United States Supreme Court, with the consent of Congress, enacts the FRCP.

Given the rise of MDL proceedings and the lack of formal rules, the need for the proposed procedure outlined in Proposed New Rule 16.1has been on the Advisory Committee’s radar since at least 2017. Specifically, while the FRCP contains Rule 16, which governs pre-trial conferences, scheduling, and case management in regular civil proceedings, that Rule does not specifically address the unique needs of MDL proceedings. This is where the Advisory Committee believes Proposed New Rule 16.1can fill such a void to assist courts and parties in the initial management of an MDL proceeding. While the new rule would largely codify existing practice in MDL proceedings, its main purpose is to provide more clarity and certainty in this area.

After the creation of the MDL, the Rule states that “the transferee court” where the MDL is pending “should schedule an initial management conference to develop a management plan for orderly pretrial activity in the MDL proceedings.” (Rule 16.1(a)). Proposed New Rule 16.1goes on to permit, but not require, the MDL court to “designate coordinating counsel to assist the court with the initial MDL management conference.” (Rule 16.1(b)). This coordinating counsel, if designated, would work with the parties to prepare for the conference and prepare the Report for the initial MDL management conference, which is further detailed in the next section.

The Report, which, again, is strongly encouraged, but not required by the Rule, should be ordered by the Court as a joint effort of the parties. If so ordered, however, the Report must address matters that the Court requests, including:

(1) Whether and to what extent leadership counsel should be appointed (i.e., define the procedure for selection, structure and leadership of appointed counsel, discuss roles and limits, and compensation);

(2) Identification of principal factual and legal issues likely to be presented;

(3) Exchange of information supporting the parties’ claims and defenses (e.g., fact sheets);

(4) A proposed discovery plan;

(5) Whether and, if so, how Court facilitated settlement should occur; and,

(6) Additional issues including pre-existing scheduling order or other orders remaining from the transferor courts, potential pre-trial motions, any additional case management conferences needed, potential consolidation of pleadings, need for referrals to a magistrate judge or master, and potential filing of new actions appropriate for inclusion in and/or coordination with the MDL. (Rule 16.1(c)).

Finally, Proposed New Rule 16.1 recommends that after the initial MDL management conference, the Court should enter an initial MDL management order addressing the matters set forth in Rule 16.1(c) and any other matters in the court’s discretion. (Rule 16.1(d)). The purpose of implementation of such an Order is that same will control the course of the MDL proceedings, unless otherwise modified by the Court.

Proponents of codifying this rule believe it would require the parties, and potentially the Court, to address key discovery issues earlier in MDL proceedings and that, overall, the Rule is needed. However, various opponents of Proposed New Rule 16.1 do not believe it will bring about much, if any, change. Proposed New Rule 16.1 is now in a public comment period.

Unless major changes are implemented to it, the Rule must then be presented to the Conference and then the United States Supreme Court. The current timeline for Proposed New Rule 16.1 to go into effect, assuming everything stays on track, is estimated to be 2025, at the earliest. Be on the lookout here for updates as Proposed New Rule 16.1 makes its way through the approval process.

Year End Review: 2022 Product Liability Developments

03 Jan 2023

Our 2022 year-end review encapsulates significant jury verdicts and decisions affecting product liability cases across the nation. Below, is a non-exhaustive list of some product liability cases with national and regional implications that deserve attention.

U.S. SUPREME COURT AND OTHER COURTS

1. U.S. Supreme Court Denies 3M Co.’s Writ of Certiorari In Re Bair Hugger Surgical Blankets MDL

The Supreme Court declined to review the Eighth Circuit Court of Appeals’ decision to reinstate nearly 6,000 lawsuits regarding 3M’s allegedly defective Bair Hugger surgical warming blankets. The plaintiffs in Amador v. 3M Co. brought claims against 3M Company alleging its surgical blankets used to keep patients warm by a forced air device during orthopedic-implant surgeries cause periprosthetic joint infections (“PJIs”). Plaintiffs proffered expert testimony to support their argument that the blanket’s warm air device allowed microbes and bacteria to enter surgical sites or wounds thereby causing PJIs in patients.

In 2019, the MDL court sitting in the United States District Court for the District of Minnesota granted 3M’s motion to exclude plaintiffs’ two general-causation medical experts and one engineering expert. The court subsequently granted 3M’s summary judgment as to all of Plaintiffs’ claims and entered an MDL-wide final judgment. Regarding plaintiffs’ medical causation experts, the MDL court ruled that the medical causation experts offered inadmissible testimony under the Daubert standard. Specifically, it found that medical experts’ theories of causation were “so fundamentally unsupported that they should be excluded rather than admitted” under Rule 702.

On appeal, The Eighth Circuit reversed. In so doing, it held that the MDL court erred in finding that the medical experts’ opinions were “so fundamentally unsupported that they should be excluded.” Rather, although it found the theories relied on by plaintiffs’ medical causation experts were weak, it held the “redress for such weaknesses lie in cross-examination and contrary evidence rather than exclusion.” On this basis, it further reversed 3M’s grant of summary judgment effectively reinstating plaintiffs’ negligence and strict liability claims.

In a costly blow to 3M, the Supreme Court denied its writ of certiorari following the Eighth Circuit’s decision. Despite 3M’s victory in the first bellwether trial in Gareis v. 3M Co., it will now have to expend even more resources, time, and money in preparing the remaining bellwether cases for trial. Equally important, the Supreme Court’s denial has reinvigorated the debate over Daubert’s application in federal courts. Numerous amicus briefs were submitted in support of 3M’s writ, emphasizing Rule 702’s function in requiring federal judges to act as “gatekeepers” to prevent a jury’s exposure to “junk science” or unreliable expert testimony. While Daubert’s application is by no means uniform throughout the twelve circuits, the responsibility of judges to act as “gatekeepers” continues to be at the forefront of debate in ensuring fair trials in product liability cases.

2. U.S. Supreme Court Denies Monsanto Company’s Appeal to End Roundup Lawsuits

On June 21, 2022, the Supreme Court denied Monsanto’s writ of certiorari in Monsanto Company v. Edwin Hardeman. The denial left in place the Ninth Circuit Court of Appeals’ decision affirming a $25 million damages award to a consumer with non-Hodgkin’s lymphoma, who alleged that Roundup caused his cancer.

Hardeman sued Monsanto asserting that it failed to warn about the cancer risks of using Roundup. He alleged that he used Roundup between 1980 and 2012 and then in 2015 was diagnosed with non-Hodgkin’s lymphoma as a result. He sued under California law, claiming Monsanto’s failure to warn about Roundup’s carcinogenic risk caused his illness. At trial, the district court admitted expert testimony that exposure to glyphosate can cause non-Hodgkin’s lymphoma generally and caused his illness specifically, while acknowledging that both questions were close even under the Ninth Circuit’s lenient admissibility standard. Following a jury verdict awarding $5.27 million in compensatory damages and $75 million in punitive damages to Hardeman, the district court reduced the latter, explaining that Monsanto’s culpability was “diminish[ed]” because (1) glyphosate had been “repeated[ly] approv[ed]” by EPA and other regulators, and (2) there was “credible evidence” that glyphosate does not cause non-Hodgkin’s lymphoma. The Ninth Circuit affirmed and held that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) neither expressly nor impliedly preempted the failure to warn claims and that the district court’s Daubert ruling followed the Ninth Circuit’s precedent under which some level of deference to experts with borderline opinions was proper. Monsanto subsequently filed a petition for a writ of certiorari, which the Supreme Court declined to hear.

The Supreme Court’s rejection of Monsanto’s appeal thwarts, for now, the company’s attempt to avoid potentially billions of dollars in damages in thousands of ongoing and potential Roundup lawsuits and opens doors for plaintiffs alleging similar injuries from the company’s product to seek comparable damages. While Monsanto remains adamant that the cancer claims related to Roundup do not align with the 2020 Environmental Protection Agency decision that “glyphosate is unlikely to be a human carcinogen,” the Ninth Circuit in a separate case just a week before the Court’s denial of the company’s certiorari vacated the 2020 EPA decision and ordered the agency to reassess the human health risks of glyphosate by October 2022. NRDC, et al. v. EPA, No. 20-70787 (9th Cir. June 17, 2022).

3. Eighth Circuit Affirms $2.5 Million Punitive Damages Award Against Biomet, Inc.

The Eighth Circuit Court of Appeals affirmed a jury award of $1.05 million in compensatory damages and $2.5 million in punitive damages against Biomet, Inc. Nicholson v. Biomet, Inc. arose out of MDL proceedings regarding Biomet’s M2a Magnum hip-replacement device. Plaintiff alleged defective design after experiencing complications from hip replacement surgery using a M2a Magnum device. At trial, plaintiff presented evidence that Biomet should have tested the M2a Magnum device before introducing it to the market but failed to do so.

4. Three Veterans Secure Over $180 Million In 3M Combat Arms Earplug Bellwether Trials

Losses continue to accrue for 3M Company In Re: 3M Combat Arms Earplug Products Liability Litigation as Florida federal juries issued verdicts in favor of three veterans totaling $187.5 million in compensatory and punitive damages. The MDL filed against manufacturers of combat earplugs involve allegedly defective earplugs that caused hearing injuries and hearing loss to veteran users.

James E. Beal, a former soldier, used the CAEv2 Dual-Ended Combat Arms Earplug manufactured by 3M Company while on active duty from 2005-2009 and then as a reservist in 2011. Beal asserted a defective design theory, among others, in support of his claim that he suffered hearing loss, sequelae to hearing loss, and tinnitus. Beal ultimately secured a jury verdict of $5 million in compensatory damages and $72.5 million in punitive damages for a total award of $77.5 million.

Army veterans Ronald Sloan and William Wayman claimed they sustained hearing loss and tinnitus in both ears after receiving 3M Combat Arms Earplugs Version 2 when they first enlisted in 2006 at the age of 19. After a three-week trial, a Florida federal jury awarded them each $55 million, including $40 million in punitive damages, totaling $110 million in damages.

5. West Virginia Federal Judge Finds Opioid Distributors Not Liable in First Bellwether Trial

The United States District Court for the Southern District of West Virginia entered a bench trial verdict in favor of three wholesale distributors of opioids: AmerisourceBergen Drug Corporation, Cardinal Health, Inc., and McKesson Corporation. The West Virginia government plaintiffs, city of Huntington and Cabell County, only asserted one claim of public nuisance against the distributor defendants. The court ruled that West Virginia law does not recognize public nuisance claims based on the sale and distribution of products, including opioids. The court reasoned that “to apply the law of public nuisance to the sale, marketing and distribution of products would ‘open the floodgates of litigation.’”

6. Johnson & Johnson and West Virginia Execute $99 Million Settlement Agreement to Resolve Opioid Claims

On April 18, 2022, Johnson & Johnson and Janssen Pharmaceutical Companies announced a $99 million settlement agreement with the State of West Virginia. The agreement effectively removes J&J from the Kanawha County, West Virginia opioid litigation docket where claims remain ongoing. A link to the J&J newsletter can be found here: https://www.jnj.com/johnson-johnson-statement-on-west-virginia-opioid-settlement-agreement

7. Florida Federal Judge Dismisses Thousands of Zantac Lawsuits

Manufacturers and distributors of Zantac can rest easy following a federal judge’s dismissal of thousands of Zantac lawsuits. On December 6, 2022, Judge Robin L. Rosenberg, who oversees the Zantac (Ranitidine) Products Liability MDL in the U.S. District Court for the Southern District of Florida, granted summary judgment to all defendants after finding plaintiffs failed to establish sufficient evidence of general causation under the Daubert standard that Zantac causes cancer. The application of Daubert and proving medical causation continues to be at the forefront of product liability litigation in 2022. An appeal from the MDL court’s ruling, to the Eleventh Circuit, is expected.

8. Tyson Foods Subsidiary Survives Motion to Dismiss Its Product Liability Claims Against Farmers

Tyson Fresh Meats filed a products liability and negligence action against Dykhuis Farms and McKenzie Highlands, Inc. after it was forced to dispose of approximately 1,786,245 pounds of fresh meat that was contaminated by hogs purchased from Dykhuis and raised by McKenzie Highlands. Defendants filed a motion to dismiss arguing that “animals aren’t products,” and that “the court shouldn't expand the definition of product to include animals because its jurisdiction is based on diversity and Indiana courts haven’t addressed the issue yet.” The court dismissed the negligence claim but allowed the product liability claim. It ruled that Indiana law, in accordance with the UCC, finds it “logical to conclude that if the unborn young of an animal is a good, then the adult mature animal ... is also a good under Indiana law.”

9. Illinois Supreme Court Grants Appeal of Abbott Lab’s Judicial Estoppel Claim

After giving birth to a newborn with severe spina bifida, a mother and her family filed a lawsuit against Northwestern Memorial Hospital. At trial, they argued that the physicians chose not to properly supervise or treat the mother. A jury agreed and awarded the family $18.5 million in damages. The facts of the case revealed that prior to giving birth, the mother was prescribed Depakote, a mood stabilizer, after experiencing several psychotic episodes. Depakote is a drug manufactured by Abbott Laboratories Inc. and AbbVie Inc., who manufactured and sold Depakote, respectively.

The Muhammads filed a separate product liability action against Abbott and AbbVie, alleging they failed to warn of Depakote’s risks of birth defects, among other things. Abbot moved for summary judgment shortly thereafter, arguing that the Muhammads’ claim should be judicially estopped, as they took an inconsistent position in the prior medical malpractice case. The trial court agreed and the Muhammads appealed.

On appeal, The First District reversed and remanded the trial court’s ruling. The court held that a prescribing physician’s malpractice does not necessarily relieve a drug manufacturer from liability for failure to provide adequate warnings of a drug’s risks. As a result, it found that judicial estoppel did not apply. On November 30, 2022, the Illinois Supreme Court granted Abbott’s bid to review the First District’s decision.

10. Local Missouri Governments Secure $56 Million Class Action Settlement

Jackson County, Missouri, and a certified class of other Missouri counties, obtained a $56 million settlement with guardrail manufacturers Trinity Industries, Inc. and Trinity Highway Products, LLC. The county plaintiffs filed a class action alleging products liability, negligence, strict liability, and negligent supply of a dangerous instrumentality for business purposes. Trinity manufactured, marketed, and sold the ET-2000 guardrail end terminal system, purchased by the county plaintiffs. Trinity subsequently redesigned the ET-2000 and rebranded it under the name ET-Plus without notice. The court has since granted preliminary approval of the class action settlement.

U.S. Supreme Court Declines to Hear Monsanto's Appeal to End Roundup Lawsuits

08 Jul 2022

ABSTRACT: The United States Supreme Court recently rejected an appeal from Monsanto Company, who petitioned the Court to review a judgment of a U.S. Court of Appeals that affirmed a $25 million dollar damage award.

On June 21, 2022, the Supreme Court denied Monsanto’s petition for a writ of certiorari in Monsanto Company v. Edwin Hardeman, leaving in place the Ninth Circuit Court of Appeals decision affirming a $25 million damage award to a consumer with non-Hodgkin’s lymphoma, who alleged that Roundup caused his cancer. Monsanto argued that the Ninth Circuit’s decision conflicted with the Court’s and other circuit’s decisions on two important federal questions: (1) whether the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts a state-law failure-to-warn claim when the warning cannot be added to a product without the Environmental Protection Agency's approval and the EPA has repeatedly concluded that the warning is not appropriate; and (2) whether the Ninth Circuit’s standard for admitting expert testimony – which departs from other circuits’ standards – is inconsistent with the Supreme Court’s precedent and the Federal Rules of Evidence.

Hardeman sued Monsanto asserting that it failed to warn about the cancer risks of using Roundup. He alleged that he used Roundup between 1980 and 2012 and then in 2015 was diagnosed with non-Hodgkin’s lymphoma as a result. He sued under California law, claiming Monsanto’s failure to warn about Roundup’s carcinogenic risk caused his illness. At trial, the district court admitted expert testimony that exposure to glyphosate can cause non-Hodgkin’s lymphoma generally and caused his illness specifically, while acknowledging that both questions were close even under the Ninth Circuit’s lenient admissibility standard. Following a jury verdict awarding $5.27 million in compensatory damages and $75 million in punitive damages to Hardeman, the district court reduced the latter, explaining that Monsanto’s culpability was “diminish[ed]” because (1) glyphosate had been “repeated[ly] approv[ed]” by EPA and other regulators, and (2) there was “credible evidence” that glyphosate does not cause non-Hodgkin’s lymphoma. The Ninth Circuit affirmed and held that the FIFRA neither expressly nor impliedly preempted the failure to warn claims and that the district court’s Daubert ruling followed the Ninth Circuit’s precedent under which some level of deference to experts with borderline opinions was proper. Monsanto subsequently filed a petition for a writ of certiorari, which the Supreme Court declined to hear.

Monsanto argued FIFRA says states may not impose packaging or labeling requirements that are “in addition to or different from” those under the federal law. The Supreme Court interpreted that provision in 2005 to allow failure-to-warn suits under state law, if the state requirements are “genuinely equivalent” to those under FIFRA. In its appeal, Monsanto argued that the verdict held the company to a tougher standard than federal regulators have under FIFRA. Under the Supreme Court’s prior ruling, “where, as here, a plaintiff proves a herbicide is dangerous to human health, the manufacturer can be found in violation of both state and federal law,” Hardeman argued. Monsanto also claimed the trial judge improperly allowed expert testimony that Roundup causes cancer, arguing that the testimony was speculative.

The Supreme Court’s rejection of Monsanto’s appeal thwarts, for now, the company’s attempt to avoid potentially billions of dollars in damages in thousands of ongoing and potential Roundup lawsuits and opens doors for plaintiffs alleging similar injuries from the company’s product to seek comparable damages. While Monsanto remains adamant that the cancer claims related to Roundup do not align with the 2020 Environmental Protection Agency decision that “glyphosate is unlikely to be a human carcinogen,” the Ninth Circuit in a separate case just a week prior to the Court’s denial of the company’s certiorari vacated the 2020 EPA decision and ordered the agency to reassess the human health risks of glyphosate by October 2022. NRDC, et al. v. EPA, No. 20-70787 (9th Cir. June 17, 2022).

* Ryan Sim, Summer Law Clerk, assisted in the research and drafting of this post. Sim is a rising 3L student at Washington University School of Law in St. Louis.

Year in Review: A Midwest-Focused Review of 2021 Product Liability Cases

05 Jan 2022

ABSTRACT: In this 2021 year-end summary, the Product Liability Law Blog highlights some of the key national and Midwest (with a focus on Missouri, Illinois, and Kansas) cases decided in 2021.

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.

Supreme Court and Other Major Cases

1. Specific Personal Jurisdiction is Expanded.

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’s contacts within the forum. In Ford Motor Co. v. Montana Eighth Judicial District Court, et al. and Ford Motor Co. v. Bandemer, the plaintiffs brought product liability claims against Ford in the states where the auto accidents occurred and the plaintiffs resided - Montana and Minnesota respectively. However, the vehicles at issue were not originally sold by Ford in Montana or Minnesota. The cars were designed in Michigan, manufactured in Kentucky and Canada, and first sold in Washington and North Dakota. 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. 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. Link to Product Liability Law Blog post (March 31, 2021).

2. Oklahoma Supreme Court Overturns J&J’s $465 Million Opioid Judgment.

In November, the Oklahoma Supreme Court overturned a $465 million opioid verdict against Johnson & Johnson, entered by Judge Thad Balkman in the District Court of Cleveland County of the State of Oklahoma (Oklahoma ex rel. Hunter v. Purdue Pharma LP et al.). Specifically, the Court found that the trial court’s decision rested on an improper expansion of state law concerning what a “public nuisance” is under Oklahoma law. 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&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.

3. State Governments Win In Ohio As Other Opioid Litigation Losses Continue.

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 & Johnson. 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.

4. GlaxoSmithKline Released from Zofran MDL.

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. 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’s ruling in Merck v. Albrecht, which held that the judge and not juries should analyze and apply the FDA’s regulations on warning labels; thus, opening the door for this Judge to make the call on preemption. 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. 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 In re: Zofran (Ondansetron) Products Liability Litigation.

5. Roundup Delivered Multiple Setbacks.

In May, the Ninth Circuit upheld a $25 million judgment against Bayer AG, making this Bayer’s second unsuccessful Roundup appeal. This judgment was obtained by plaintiffs in the first bellwether trial (Edwin Hardeman v. Monsanto Co.) 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 "adequate to protect health and environment.” California common law holds that manufacturers must warn about known risks or risks about which a "reasonably prudent" manufacturer would know. Also in May, in In re: Roundup Products Liability Litigation, a California federal judge rejected a proposed $2 billion settlement meant to cover claims brought in the future over Roundup, finding that it was "clearly unreasonable" 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’s request to overturn an $87 million verdict awarded to the Pilliods who claim the Bayer AG subsidiaries weedkiller, Roundup, caused their cancer. 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’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.

6. Flint Water Settlement Approved.

In November, a Michigan federal judge gave final approval to the proposed settlement for the In Re: Flint Water Cases. The settlement, which was approved at $626 million, will be paid to over 100,000 people affected by the contaminated water in Flint, Michigan. The Sixth Circuit recently affirmed a lower Court’s decision not to allow state court plaintiffs to intervene in the federal court settlement.

7. Boeing Pays Up to Settle Conspiracy Claims Over The Max 8.

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. The planes were involved in two separate crashes, which claimed the lives of 346 people. In November, Boeing agreed to a settlement of the claims asserted in the In re: Ethiopian Airlines Flight ET 302 Crash matter, pending in the Northern District of Illinois.

8. Southern District of Texas Delivers One-Two-Three Punch.

In Johnson v. Novartis, 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’s disease from the ingestion of a combination of two generic drugs. The Johnson court disposed of the multiple actions, ultimately treating the entire case as an alleged failure to warn products case. First, the two brand name defendants moved to dismiss the plaintiff’s claims, which relied on innovator liability. 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’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’s state law claims against the generic manufacturers were preempted by federal law based on the Supreme Court’s decision in PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011) The district court followed both Supreme Court and Fifth Circuit precedent in holding that plaintiff’s claims against the generic manufacturers based on failure to warn of the possible risk were preempted. Third, the Court rejected plaintiff’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 “Fraud on the FDA”. In Johnson, the plaintiff alleged the defendant’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’s claims were dismissed with prejudice.

9. Florida Jury Returns $43M Tobacco verdict against Philip Morris.

In Lipp v. R.J. Reynolds et. al, 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’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.

Missouri, Kansas, and Illinois:

10. Eighth Circuit Breathes New Life into Bair Hugger MDL.

The 8th Circuit Court of Appeals reversed a decision by the district court that had excluded the testimony of plaintiff’s expert witnesses and granted summary judgment to 3M. Plaintiffs in the MDL (In re Bair Hugger Forced Air Warming Devices Products Liability Litigation) claimed that 3M’s surgical warming device is defective and caused bacteria to contaminate the sterile operating room, leading to infection. The MDL Court had excluded plaintiff’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. Link to Product Liability Law Blog post (September 28, 2021). There is another 3M MDL (In re: 3M Combat Arms Earplug Products Liability Litigation) 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. Those claims involve veterans alleging their hearing was damages by CAEv2 earplugs made by Aearo Technologies LLC, a company acquired by 3M.

11. Pre-Judgment Interest in Illinois.

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’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. See 735 ILCS 5/2-1303(c).

12. The Supreme Court Refuses to Hear J&J’s Talc Appeal from Missouri Case.

In June of 2021, the Supreme Court refused to hear Johnson & Johnson’s appeal in a talc case decided in Missouri state court (Johnson et al. v. Gail L. Ingham et al.) $2.1 billion was awarded to about two dozen women who claimed there was asbestos in J&J’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). J&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.

13. Inadequate Voluntary Dismissal Results in Dismissal with Prejudice.

In Graham v. Mentor Worldwide LLC, 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 – 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’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. 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.

14. EpiPen Settlement Produces $115M for Consumer Counsel.

In November, a Kansas federal judge gave final approval to the $345 million settlement of class action litigation claims against pharmaceutical company Pfizer, in In re: EpiPen Marketing, Sales Practices and Antitrust Litigation. $115 million of that settlement was designated for the plaintiff class counsel, with seven law firms splitting the $115 million. 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.

15. Illinois Officer Awarded $7.5M for Failure to Warn by Ammo Makers.

In Hakim v. Safariland LLC et al., 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’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.

16. Illinois State Court Jury Sides With J&J In Talc Powder Jury Trial.

The jury, in Cadagin v. Johnson & Johnson et al., determined that the death of Elizabeth Driscoll from ovarian cancer was not caused by her use of Johnson & Johnson’s (“J&J”) 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&J was aware that its baby powder was defective and dangerous for perineal use. Cadagin claimed J&J knew the powder contained carcinogenic components such as asbestos, chromium, nickel, cobalt, and arsenic. However, the jury sided with J&J.

17. Seventh Circuit Grants Paint Makers Reversal of $6M Verdict.

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, Thomas v. Mallett, 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’ failure to warn, but then ruling post-trial that they did not have to provide such proof.

18. Actavis Drug Did Not Cause Man’s Heart Attack.

An Illinois federal jury (Martin v. Actavis et al.) sided with Actavis Inc. on all counts of a lawsuit brought by a man who claimed the company’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’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.

As you can see, the legal docket was a busy one in 2021 – delivering a mixed bag of results for plaintiffs and defendants in various product liability settings. 2022 is sure to deliver even more interesting and impactful results. We will be watching.

Eighth Circuit breathes new life into In Re Bair Hugger Products Liability MDL

28 Sep 2021

ABSTRACT: Litigation over medical warming devices may heat up, as the Eighth Circuit reverses a District Court decision that struck multiple expert witnesses and granted summary judgment.

On August 16, 2021, the Eighth Circuit Court of Appeals reversed a District Court decision striking class action plaintiffs’ experts and granting summary judgment to 3M Company in the In re Bair Hugger Forced Air Warming Devices Products Liability Litigation. This case is part of Multi-district Litigation (MDL) proceedings, consisting of nearly 6,000 lawsuits, pending in the District of Minnesota. The MDL court, following similar rulings by the trial court in the first bellwether case, excluded Plaintiffs’ general-causation medical experts as well as one of their engineering experts, and granted 3M summary judgment as to all of plaintiffs’ claims.

Plaintiffs in the MDL have brought claims against 3M asserting that they contracted periprosthetic joint infections due to the use of 3M’s Bair Hugger. 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. The device consists of a central heating unit, a hose, and a disposable perforated blanket that is placed over the patient. The central unit draws in air through a filter, warms the air, and blows it out through the hose into the perforated blanket.

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 (“the airflow theory”); or second, the device is internally contaminated and projects bacteria through the blanket into the operating room (“the contaminated product theory”).

The MDL court excluded plaintiffs’ engineering expert on the grounds his opinion relied upon modeling developed for litigation and was unproven and untested in real-world operating rooms.

Plaintiffs’ engineering expert created a computational-fluid-dynamics (“CFD”) 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. Nonetheless, the MDL court excluded plaintiffs’ engineer because his conclusion “relies on an unproven and untested premise” in actual practice, and the CFD model was developed for litigation, raising “concerns about its reliability and objectivity.” The Eighth Circuit disagreed, ruling that when a “hired gun” expert’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. DiCarlo v. Keller Ladders, Inc., 211 F.3d 465, 468 (8th Cir. 2000). The Eighth Circuit found it was an abuse of discretion to wholly exclude the engineer’s testimony.

Plaintiffs’ 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.

The MDL court excluded plaintiffs’ medical experts, finding their opinions unreliable because there was “too great an analytical gap between the literature and the experts’ general causation opinion.” The MDL court deemed it unreliable for the medical experts to draw an inference of causation from a study that disclaimed proving causation. The Eighth Circuit rejected that it is per se 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. The Eighth Circuit found that plaintiffs’ experts also relied on studies and reports showing plausible mechanisms for forced-air warming to cause infections. 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.

The MDL court’s grant of summary judgment to 3M was derivative of its order excluding Plaintiffs’ experts, and thus was reversed by the Eighth Circuit.

What does this mean for your company?

While the Eighth Circuit’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. 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.