HB Litigation News

Author: Tom Hagy

  • The Need for Real MDL Rules Will Only Grow More Acute — Drug and Device Law Blog

    By Bexis 

    [one-half-first].[/one-half-first] [one-half]”In the ensuing procedural gamesmanship, plaintiffs are in the process of losing one of the main ways they gamed the system to keep diverse cases in state court – the so-called ‘forum defendant rule’ whereby even a diverse action could be kept in state court by the presence of defendant domiciled in the plaintiff’s chosen forum. The forum defendant rule applies only to parties ‘properly joined and served,’ and technologically-savvy defendants have discovered that, by monitoring electronic dockets, they can remove diverse cases faster than plaintiffs can serve forum defendants. We call this ‘pre-service,’ ‘snap,’ or ‘wrinkle’ removal, and we’ve chronicled (and advocated) its rise since 2007.”

    Read the complete post by Bexis on Drug and Device Law Blog here. [/one-half]

    This is an excellent blog. One of my favorites. It’s unapologetically defense-oriented, of course. A phrase like “gamed the system” is practically an invitation for rebuttal! So if you would like to respond, rebut, or rebuke, please write to us at Editor@LitigationConferences.com. –Tom Hagy, HB

  • Product Liability in the Internet of Things — Schiff Hardin Product Liability & Mass Torts Blog

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    Photo by Markus Spiske on Unsplash [/one-half-first] [one-half]”Combining a physical object and an intangible technology also creates a novel issue when it comes to strict product liability principles, which typically hold that a product manufacturer may be strictly liable for a product’s defect. The first task in a strict product liability case is to identify the product. In the context of a device that has no internet connectivity, the answer is straightforward. If a ladder is defective and causes an injury, the ladder’s manufacturer may be held strictly liable because a ladder is the product. But when it comes to IoT devices, the line may be blurred. Almost always, the software part of the IoT device is ‘manufactured’ by a separate entity from the entity that manufactures the physical object. If the IoT device proves to be defective, the question becomes which entity may be held strictly liable.”

    Read the complete post by Schiff Hardin’s  Gregory Dickinson & Jeffrey D. Skinner  here. [/one-half]

  • National Geographic Disclosed Customer Info, Class Action Says — Top Class Actions Blog

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    “The National Geographic class action states that prior to and at the time that he subscribed to the magazine, the company did not notify him that it discloses the personal reading information of its customers.

    “Markham also claims that he wasn’t provided with any written notice that National Geographic makes a practice of renting, exchanging, or otherwise disclosing personal reading information to third parties, and provides no means of opting out.

    “However, the National Geographic information disclosure class action lawsuit says that since subscribing to National Geographic and between Mach 26, 2016 andJuly 30, 2016, National Geographic disclosed Markham’s personal reading information to data aggregators, data appenders, and/or data cooperatives.”

    Read the complete post by Top Class Actions Editor Emily Sortor here.

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  • A Generic Drug Failure to Warn Claim? –Michelle Hart Yeary

    [one-half-first][/one-half-first] [one-half] “Rather than focusing on what plaintiff’s off-label marketing claim really was – a claim that defendant’s label should have contained different information or warnings about off-label uses – an impliedly preempted claim, the court got distracted trying to fit the case in under Bausch and started talking about parallel violation claims.

    “The court found that because plaintiff was alleging a violation of federal regulations, his claims “run parallel to [defendant’s] state law duties,” and thus were not preempted. The problem with this is that Mensing is not an express preemption case.  It was an implied preemption case, and the district court had no business applying ‘parallel claim’ analysis to implied preemption, where a ‘parallel claim’ exception does not exist.  It makes no difference whether plaintiff’s off-label promotion claim is ‘parallel’ to federal regulations, defendant could not have offered any different warning so any claim that the warning or information it provided was inadequate is preempted under Mensing.  The court was trying to fit a square peg into a round whole – and the only way that works is to cut off the corners.”

    Read the complete post by Dechert’s Michelle Hart Yeary here!

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  • One Stock for the Coming Marijuana Boom, Says The Motley Fool

    “This legal pot stock could be like buying Amazon for $3.19.”


    “Cannabis legalization is sweeping over North America – 10 states plus Washington, D.C., have all legalized recreational marijuana over the last few years, and full legalization arrived in Canada in October 2018. Legal marijuana is worth an estimated $50 billion for the U.S. today. And since experts have projected the U.S. industry to skyrocket to $80 billion by 2030, it’s time for investors to start paying attention. Because whether or not you’re planning on ingesting any THC, you can’t deny the monumental investing opportunity that a potentially $80 billion industry represents.” –Grace Phillips, in an article for The Motley Fool

  • Private Calif. Plaintiffs Seemingly Enforcing FDCA, Drug & Device Law Blog Says

    “Doctors treated two plaintiffs for severe psychological problems, ultimately employing defendant’s Thymatron System IV to perform electroconvulsive therapy. Plaintiffs claimed that, as a result, they suffered brain trauma, memory loss and other brain-related injuries. They filed product liability claims based, in the main, on the manufacturer’s alleged failure to report adverse events. The decision in Riera addressed summary judgment motions, ones filed by both the plaintiffs and the defendant. You don’t ordinarily see summary judgment motions by plaintiffs, and Riera is an example of why.”

    Read the complete post by John J. Sullivan of Cozen O’Connor.

  • Million-Dollar Settlement in Employee Background Check Case, Top Class Actions Reports

    “Job applicants have secured a $1.2 million settlement ending allegations that Maxim Healthcare did not properly inform potential employees that they would have a consumer report pulled as part of the application process. Class Members include those who applied and got a job with the healthcare services company between May 5, 2009 and Aug. 27, 2012, who were also subject to a consumer report check by Maxim. The Maxim Healthcare class action lawsuit claimed that Maxim violated federal consumer privacy protections when procuring employee background checks.”

  • Settlement Psychology: Who is in Control? Homer Simpson or Mr. Spock? | Complimentary Webinar

    Settlement Psychology: Who is in Control? Homer Simpson or Mr. Spock? | Complimentary Webinar

    Settlement Psychology

    Who’s in charge? Homer Simpson or Mr. Spock?

    Cognitive obstacles to finding common ground.

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    Complimentary On-Demand Webinar From HB!

    1 CLE credit

    CLE questions?
    CLE@LitigationConferences.com

    Questions for speakers?
    Questions@LitigationConferences.com

    SPEAKERS

    Jeff Trueman
    Mediator / Negotiator

    John Philip Miller
    Baltimore City Circuit Judge (ret.)

    This course is also available via the
    West LegalEdcenter.

    [/two-fifths-first] [three-fifths]

    Improve your negotiation strategy and outcomes.

    Mediator, arbitrator and settlement conference neutral Jeff Trueman says the lawyer’s mind can sometimes play tricks on them when it comes time to settle a claim. “The central question on the minds of counsel, their clients, and insurance professionals in civil litigation is, of course, ‘What’s the case worth?’ For mature torts there is enough historical settlement and verdict data exist for counsel to argue why a particular case should or should not fit within a certain settlement range. In the midst of these discussions, the human brain plays tricks on us. For example, litigators sometimes assume that their trial experience can determine how jurors will negotiate with one another and resolve factual discrepancies after closing arguments. This assumption is a ‘heuristic’ – a cognitive shortcut called attributional error or illusion of control.” Backed by his decades of psychological and economic sciences research, Trueman says there is a lot of room for attorneys to change their mindset when moving into settlement mode.

    Litigation Chicken

    “When differences over case value intensify, litigators return to threats of relinquishing control: ‘Maybe we have to try this case;’ or ‘We feel good about our chances in front of a jury.’ Underneath the games of litigation chicken that are the hallmark of settlement negotiation, heuristics lead to erroneous valuations and assessments of risk.”

    He says attorney would be well served, and would serve their clients well, if they make adjustments depending on their role at a given point in the process. “Many lawyers default to their role as advocates for legal rights without considering the quality of counsel they give to clients regarding risk management. This plays right into the endowment bias that potential clients carry, valuing property or experiences merely because they have them. When thinking about future risk, many lawyers exhibit an overconfidence and self-serving bias in favor of past success. Unfortunately, competitive bargainers are disinclined to compromise even when it would benefit their bottom lines. Of course, it goes without saying that clients are often better served by lawyers who have some experience in a courtroom. But prior success does not guarantee future results.”

    Learn what else Jeff has to say on the subject. He was joined by Judge John Philip Miller, now retired from the Circuit Court of Baltimore City. Judge Miller spent 16 years on the bench after a career in private practice.

    What they over: 

    + What are the cognitive barriers to assessing case value?
    + How can you use this information to your advantage?
    + How can you help your clients with this information?
    + What is the impact of unrealistic expectations — yours and your client’s?
    + Answers to your questions. Send them by email to Questions@LitigationConferences.com.

    Speaker Bios

    Jeff Trueman | Mediator / Negotiator

    Jeff is a private mediator of litigated civil disputes, including personal injury, premises liability, toxic and environmental torts, wrongful death, professional malpractice, partnership dissolution, employment, domestic, and guardianship petitions. He is a public speaker and presenter of mediation and negotiation-related dynamics at law schools, law firms, and litigation conferences. Jeff is author of an ADR column that appears semi-regularly in the Maryland Daily Record.

    Judge John Philip Miller (ret.) | Baltimore City Circuit Court 

    Judge Miller served on the bench for more than 16 years both in District and Circuit Court. Prior to his appointment to the bench, Judge Miller was a partner with Kaplan, Heyman, Greenberg, Engleman & Belgrad, P.A., and with Wright, Constable & Skeen, LLP. Judge Miller received a Juris Doctorate from Washington and Lee University School of Law and a Bachelor of Arts Degree from Gettysburg College. He was an adjunct professor with the Villa Julie College, an instructor with the Maryland Institute for Continuing Professional Education of Lawyers, and a lecturer at the Maryland Judicial institute. His honors include the Daily Record’s Leadership in Law Award.

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  • Dan Mogin: Antitrust, Pro-Privacy Moves Led Outside U.S.

    In a move that could redefine how 2.6 billion people use Facebook Messenger and Facebook’s acquired WhatsApp and Instagram apps, The New York Times reported on Jan. 25 that Facebook CEO Mark Zuckerberg plans to integrate the platforms. The announcement turned up the volume on antitrust and privacy warnings directed at the social media giant.

    “Facebook can be legitimately criticized for merging these apps after contrary assurances and perhaps for trying to dominate messaging,” MoginRubin Partner Dan Mogin said, “but perhaps more importantly, this is another example of the evolving convergence between antitrust and privacy that appears to be being driven by forces outside the US enforcement agencies. It’s a challenging issue for antitrust and may eventually lead to a sea change.”

    See the complete post on the MoginRubin Blog. 

  • Attorney General Ferguson of Washington Sues State’s Top Opioid Distributers

    “We are woefully under-resourced when it comes to treatment. The people who are responsible for this epidemic should being paying for it. We are going to hold these companies accountable and get more money into our communities for treatment.” –Washington AG Bob Ferguson

    The three largest distributors of prescription opioids in Washington State are being sued by Attorney General Bob Ferguson for fueling the state’s opioid epidemic. Detailed in Ferguson’s King County lawsuit are the billions of dollars made from these suspicious shipments of over 2 billion pills of unregulated oxycodone, fentanyl, hydrocodone and other opioids.

    “Prescriptions and sales of opioids in Washington skyrocketed more than 500 percent between 1997 and 2011. In 2011, at the peak of overall sales in Washington, more than 112 million daily doses of all prescription opioids were dispensed in the state — enough for a 16-day supply for every woman, man and child in Washington,” according to the AG’s announcement.

    “In 2014 McKesson, Cardinal Health and AmerisourceBergen shipped enough opioids to Pend Orielle County to supply every single resident with dozens of pills. In 2009, McKesson alone supplied enough for dozens of pills for every resident of the county. The specific shipment numbers are currently under seal.”

    County Prescription Rates Map

    The accused distributors are in the top 15 Fortune 500 list based on 2017 revenue. In addition to the lawsuit, the distributors owe millions of dollars in fines, and must surrender the profits, the state maintains. “The surrendered profits will be used to remediate the effects of the opioid epidemic, possibly funding treatment, education and more.”

    In September of 2017, Ferguson sued one of the nation’s largest opioid manufacturers, Purdue Pharma, accusing the OxyContin maker of “fueling the state’s opioid epidemic by embarking on a massive deceptive marketing campaign and convincing doctors and the public that their drugs are effective for treating chronic pain and have a low risk of addiction, contrary to overwhelming evidence.”  In April  2018 a King County judge denied Purdue’s attempt to dismiss Ferguson’s lawsuit. State medical boards have since implemented opioid prescription limits.  Read the Washington State Attorney General’s Press Release here.