HB Litigation News

Tag: Product Liability

  • The Medical Monitoring Tort Remedy: Its Nationwide Status, Rationale, and Practical Application (A Possible Dynamic Tort Remedy for Long-Term Tort Maladies)

    The Medical Monitoring Tort Remedy: Its Nationwide Status, Rationale, and Practical Application (A Possible Dynamic Tort Remedy for Long-Term Tort Maladies)

    The Author

    Edgar C. Gentle

    Edgar C. GentleGentle, Turner, Sexton & Harbison LLC

    Edgar C. Gentle III (egentle@gtandslaw.com) is founder and managing partner of Gentle, Turner, Sexton & Harbison LLC in Birmingham, Alabama, where he focuses on complex commercial litigation, mass torts, and class actions. He also serves as a court appointed neutral and settlement administrator.

    The Journal on Emerging Issues in Litigation

    Emerging Litigation Podcast

    Emerging Litigation PodcastProduced by HB Litigation and Law Street Media

    Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.

    The Medical Monitoring Tort Remedy: Its Nationwide Status, Rationale, and Practical Application (A Possible Dynamic Tort Remedy for Long-Term Tort Maladies)

    “States that allow medical monitoring do so when a group of claimants has been exposed to a known hazardous substance, such as lead, or a dangerous product, such as football helmet concussions, or air decompression in an airplane, through the conduct of the Defendant, with the claimants therefore being at increased risk of contracting disease.  Under this tort remedy, claimants are tested periodically, for an agreed or decided period, usually between 10 and 40 years, to see if they contract the disease linked to the toxic substance or dangerous product. Thus, medical monitoring recognizes the long-term harmful nature of toxins and man-made products, thereby matching a remedy with the malady.“

    Abstract: The author administers six mass tort settlements with a medical component, including two with medical monitoring. This article reviews the status and history of medical monitoring, known claimant medical monitoring participation rates, the rationale for the remedy, arguments for and against its implementation, and its execution in practice. The author suggests a more holistic medical monitoring remedy,  which includes not only testing/or disease but paying claimants for personal injury when they get sicker later, from a capped fund and under an agreed payment matrix, to provide closure to defendants and class members for claims resulting from toxic substances and product defects, which have long-term and often unknown effects on plaintiffs. It is suggested that this remedy is the logical long-term result of the evolution of medical monitoring, and will provide a much needed dynamic remedy for long-term maladies.

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    OnDemand CLE Webinar: The Medical Monitoring Tort Remedy with Ed Gentle and Kip Benson

    Podcast: Medical Monitoring for Modern Times with Ed Gentle

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  • Flying Cameras: Gaps in Drone Regulation and How Courts Can Fill Them … at Least for Now

    Flying Cameras: Gaps in Drone Regulation and How Courts Can Fill Them … at Least for Now

    Authors

    Kathryn Rattigan

    Kathryn RattiganRobinson+Cole

    With deep experience in the law and regulation of unmanned aerial vehicles, Kathryn practices in the Providence, R.I., offices of Robinson+Cole. She is a member of the firm’s groups that focus on business litigation, data privacy and security, and drone compliance. Kathryn is also a member of the Editorial Board of Advisors for the Journal on Emerging Issues in Litigation and the Emerging Litigation Podcast.

    Blair Robinson

    Blair RobinsonLaw Student

    Blair Robinson is a cybersecurity intern at Robinson+Cole. She will graduate in 2023 with a J.D. from the Roger Williams University School of Law to complement her Masters of Science degree in Cybersecurity also from Roger Williams University.

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    Drone Litigation

    Flying Cameras: Gaps in Drone Regulation and How Courts Can Fill Them … at Least for Now

    Drones have rapidly transformed dozens of industries since hitting the commercial market. International aid groups use medical drones to deliver life-saving medications and vaccines to remote areas. Agricultural drones have revolutionized how farmers tend their fields. Film and television producers embrace drones for their ability to capture once prohibitively expensive or outright impossible camera shots. Hobbyists love the technology for a variety of recreational purposes. 

    However, as drones have become increasingly commonplace, lawmakers and policymakers have struggled with effectively regulating this emerging domain.

    In addition, no federal law, state law, or industry best practice adequately addresses the unique privacy and cybersecurity risks drone operations pose. Until federal regulation catches up with the technology, lawyers could move courts to mitigate the issue by arguing for strict liability for drone operators and manufacturers.

    Although drones may seem like traditional aircraft, they actually pose unique privacy concerns. Drone systems rely on real-time and simultaneous data exchanges between the operator, GPS positioning, cloud-based processing and telemetry, and the drone itself. Each facet in such a complex system presents a new opportunity for attackers. Besides the vulnerability of data traveling between the drone and its control systems, drones are also physically vulnerable. Researchers at the University of Texas Austin successfully hijacked a drone using commercially available equipment. The researchers used a local GPS transmitter to send the drone false GPS coordinates, causing it to fly off its preprogrammed path. The criminal and terror applications are evident – terror groups could use this technique to hijack drones and cause them to fly into buildings, thieves could intercept consumer drone deliveries, and militant groups could capture and ransom critical medical deliveries. Before they can enjoy widespread use, drone operators (and manufacturers) must adequately secure their devices.

    Courts and policymakers have sought to address the obvious and highly publicized issues associated with drone flight, such as irresponsible pilots harassing pedestrians and disrupting airports, while neglecting the novel threat that drones pose to personal privacy.

    Unlike crewed aircraft, drones often use remote cameras and other sensory inputs to guide their operators. In this way, drones are more akin to flying smartphones than traditional crewed aircraft. Additionally, drones can collect visual and other sensory data at a great distance and without alerting the data subject. As a result, individuals whose privacy is infringed will likely never know (or identify) the drone operator, regardless of whether they see the offending device. In addition, the growing ubiquity of drones, such as deliveries to consumers, may further obfuscate a voyeur’s identity.  Was that drone looking through my window or just delivering the neighbor’s package? 

    Surprisingly, the FAA doesn’t have authority to regulate data flow from drones; the Administration considers it outside of its congressional mandate. And while other federal statutes address specific drone data flows, no complete regulatory scheme exists. State-level regulations are similarly lacking. While some states regulate drone use by law enforcement and many smaller localities have piecemeal ordinances regulating drone activity, no state law entirely protects the privacy and security of data flowing to and from civilian drones. While the states have theoretical regulatory authority over drones, they are ultimately ill-suited to address the industry and, in most cases, lack the resources to meet the task. Finally …

    … common tort law falls short here as well. It may address intentional voyeurs, but there’s no common law “negligent invasion of privacy” cause of action to cover accidental disclosures. 

    The courts are the last body that may step in to regulate drone operations in the absence of effective bureaucratic, legislative, or industrial authority. While Supreme Court Associate Justice Samuel A. Alito, Jr. has indicated that legislative action is needed to handle changing technology effectively, the courts have a history of reining in maverick industries. For example, Judge Benjamin N. Cardozo, who would go on to serve on the Supreme Court, famously developed the concept of strict products liability to address unsafe practices in the burgeoning automotive sector. That industry shared many critical elements with today’s drone industry: the emergence of a disruptive new technology promised to both revolutionize human productivity while upsetting traditional notions of public safety. In case before Judge Cardoza, a manufacturer purchased a defective wheel from a third-party supplier. The injured driver had no legal recourse: the automotive manufacturer pointed the finger at their supplier, and the supplier owed no contractual duty to the consumer. Judge Cardozo came up with the legal innovation that underpins modern products liability law: he determined that a manufacturer that enters a product into the stream of commerce must reasonably foresee injury to the ultimate consumer. 

    Faced with another disruptive technology, courts today will likely develop case law that: 1) redefines the duty of care for drone operators for the audio or visual data that they collect in-flight which infringe on the seclusion of others, and 2) imposes strict liability on drone manufacturers for compromises in drone cybersecurity. Under this proposed liability theory, the law would expect drone operators to consider the entire data chain generated by their activities. A bird watcher using a drone to film into a lofty nest, for example, would be held responsible for the content of their video stream if it accidentally spied someone through their bedroom window. This would encourage drone operators to take reasonable care with their flying cameras. While accidental peeks into a neighbor’s home may not be highly offensive, drone-mounted cameras are risky enough to justify a heightened standard of care. This system would also draw attention to the current regulatory gaps and provide a stopgap measure until Congress broadens the FAA’s mandate or enables another regulatory authority. Similarly …

    … this type of strict liability scheme would compel drone manufacturers to consider the possible collateral damage caused by their products.

    For example, the manufacturer of a drone hijacked in a terror plot would be held responsible for failing to protect their product from hackers. Manufacturers are already liable for foreseeable injuries caused by their products, but this proposed modification to products liability law would broaden the definition of reasonably foreseeable injury to include widely publicized exploits such as UT Austin’s GPS spoofing. Again, this burden isn’t unreasonable – manufacturers are in the best position to implement some of the necessary protections and safeguards for widespread drone use. 

    Drones will inevitably become integral to our society; however, without proper regulation the novel legal issues that they raise will stunt the industry’s growth and dampen the many benefits it promises. 

    Congress will need to give the final word on drone use, but the courts – urged by persuasive attorneys – may offer stopgaps to foster sustainable growth in the meantime. Such a model would likely force every participant in the drone data chain to enter privity with the ultimate consumer and give injured individuals a temporary recovery mechanism until Congress empowers the FAA or another agency to regulate drone activity adequately. 

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  • The Shifting Gun Liability Landscape: Plaintiffs Say Companies are Marketing Illegally, Insurers End Up Paying

    The Shifting Gun Liability Landscape: Plaintiffs Say Companies are Marketing Illegally, Insurers End Up Paying

    The Author

    Charlie Kingdollar

    Charlie KingdollarInsurance Industry Expert

    Charlie spent more than four decades with General Reinsurance, three-quarters of which as the company’s Emerging Issues Officer. One colleague described him as “one of the most prescient and gifted industry futurists I have met in my 36 year professional career within the insurance industry. Entertaining and insightful, his ability to digest and communicate complex issues, many before they are readily apparent, is both a gift and a talent.” Charlie is also a member of the Editorial Board of Advisors for the Journal on Emerging Issues in Litigation.

    The Shifting Gun Liability Landscape: Plaintiffs Say Companies are Marketing Illegally, Insurers End Up Paying

    By Charlie Kingdollar

    On Feb. 15, 2022, Remington Arms, manufacturer of the Bushmaster AR15-style rifle agreed to pay $73 million to settle a lawsuit filed by the families of nine of the victims of the Dec. 14, 2012, Sandy Hook Elementary School shooting. The $73 million will be paid by four of Remington’s insurers (and likely their reinsurers).[i]

    Why is this a big deal? Insurers and reinsurers providing liability coverage for gun manufacturers did so believing that federal law protected gun manufacturers from liability arising from shootings under the federal Protection of Lawful Commerce in Arms Act (PLCAA). It seems likely that policy terms and conditions as well as pricing of the risk reflected that perceived liability protection.

    Things have changed. The Connecticut plaintiffs filed their suit under the Connecticut Fair Trade Practices Act. The plaintiffs alleged that the Bushmaster was a combat weapon and that Remington improperly marketed it to civilians – particularly trying to reach young men. In 2019, the Connecticut Supreme Court ruled that the federal PLCAA did have some carve-outs for state laws and subsequently declined Remington’s request to dismiss the lawsuit. It seems a safe bet that the families of other Connecticut gun violence victims will file similar suits over past and/or future incidents.

    Okay, so this is Connecticut. But it seems likely that this lawsuit will be used as a template by plaintiffs in other states that have similar statutes – and many do. This lawsuit and settlement could result in burgeoning litigation against gun manufacturers.

    Presumably, even a single victim shot with a Bushmaster, or any gun that could be argued is a combat weapon, could file a similar suit under a state’s Fair Trade Practices Act.

    Which other guns could be deemed “combat weapons” and therefore unfit for civilian populations? Only time and future litigation will tell. One possible example is the WEE1 Tactical, the manufacturer of the AR-15, which is similar to the Bushmaster, may find itself facing litigation. A look at AR-15-style guns on Wikipedia results in a list of 27 guns by 26 manufacturers – and I doubt this is a comprehensive list.[ii] Would a machine pistol be considered a “combat weapon”? How many other types of firearms might be deemed “combat weapons”?

    WEE1 Tactical has recently begun advertising the JR-15 – a smaller, lighter version of the AR-15 that fires smaller .22 caliber rounds for use by children. WEE1’s website states: “The JR-15 is the first in a line of shooting platforms that will safely help adults introduce children to the shooting sports.”[iii] Given that the plaintiffs in the Sandy hook case stressed the firm was specifically marketing the Bushmaster to young men it will be interesting to see how this marketing strategy will play out in any future similar litigation.

    There’s been another crack in the perceived liability protection afforded to gun manufacturers in the U.S.  Last year the State of New York enacted a law that “would classify the illegal or improper marketing or sale of guns as a nuisance…that supporters said would bolster litigation against gun companies.”[iv]

    Will other states follow? If even a few enact similar statutes, the defense and indemnity costs could be significant to the gun manufacturers and their insurers and reinsurers.

    Bushmaster has settled once before with the families of victims shot by one of its guns. In 2004, the company agreed to pay $2.5 million to settle with the families of victims shot by the D.C. sniper.[v] Not much changed after that settlement. It may be different this time.

    What about other entities in the gun liability chain? If the gun manufacturer can be held libel for marketing a combat weapon to civilians, can wholesalers and retailers also be found liable?  Could courts find that these companies also played a role in putting “combat weapons” into the hands of civilians?  If so, the costs to the Property/Casualty insurance industry will be greater.

    Unfortunately, mass shootings and gun violence are on the rise in the United States. The number of mass shootings (defined as 4 or more people shot – killed or wounded) have increased every year except one from 2014 to 2021. In 2014 there were 269 mass shootings in the U.S.  By 2021, this increased to 691 mass shootings. There have been 2,402 mass shootings in the U.S. in the past five years. And we’ve only mentioned mass shootings incidents.[vi]

    Gun violence generally continues to rise. “Guns were involved in 75% of all homicides and 91% of homicides involving youths between 2018 and 2019 … those new numbers represent a significant and troubling uptick from a decade before.”[vii]

    I suspect insurers and reinsurers providing liability for companies that manufacture and sell guns find themselves as defendants in an increasing number of lawsuits.

    [i] https://www.washingtonpost.com/nation/2022/02/15/remington-sandy-hook-settlement/

    [ii] https://en.wikipedia.org/wiki/AR-15_style_rifle

    [iii] https://en.wikipedia.org/wiki/AR-15_style_rifle

    [iv] https://www.nytimes.com/2022/02/15/nyregion/sandy-hook-families-settlement.html?referringSource=articleShare

    [v] https://www.washingtonpost.com/nation/2022/02/15/remington-sandy-hook-settlement/

    [vi]   https://www.gunviolencearchive.org/

    [vii]   “Gun Deaths Continue to Rise In American Cities,” U.S. News, 1/10/22

  • Progress of Roundup Settlement in Question, Verus Reports

    Progress of Roundup Settlement in Question, Verus Reports

    By Kim Lavin

    Manager of Research Services
    Verus LLC
    klavin@verusllc.com
    609-466-0427

    Progress of Roundup Settlement in Question

    Judge Would Likely Not Have Agreed to a Stay Had He Known About the Contingency

    On August 27, plaintiffs’ counsel in the multi-district litigation involving Monsanto and its widely used weed killer Roundup, advised the court that parent company Bayer AG appeared to be going back on the settlement agreement announced in June. At that time, the company had agreed to settle about 75% of the 125,000 claims filed by plaintiffs alleging that their non-Hodgkin’s lymphoma was linked to Roundup use; the settlement was for an estimated $10 billion.

    At the hearing, Judge Vince Chhabria advised that he had received confidential letters from a number of plaintiffs’ counsel with cases pending in the MDL who were concerned that Bayer AG was going back on the settlement, noting that the company had terminated settlement term sheets and refused to execute master service agreements that would finalize their settlements; Bayer conceded that there were currently no final agreements.

    Bayer did advise Judge Chhabria that about 667 of the cases currently pending in the MDL had been resolved, a figure that the judge noted was only a fraction of the 4,000 currently filed.  The judge also pointed to Bayer’s June 24 announcement of the settlement, stating that he had taken “all of that to mean the MDL is settled.”  He indicated that he would likely not have agreed to a 60-day stay of the litigation had he known that the larger settlement was contingent on his approval of a separate class action settlement for $1.25 billion, designed to resolve any future Roundup cases.  The judge then advised the parties that although he would not lift the current stay, he would not extend it, expressing concerns that it was being used by the parties to manipulate the settlement talks.

    Read more at VerusLLC.com.

    Safeguarding Against Financial Exploitation

    An on-demand CLE-eligible webinar Safeguarding Against Financial Exploitation   America’s senior population is growing. Nearly one in five U.S. residents will be 65 or older in 2030. Which means the average age of U.S. investors is climbing too. With that comes the risk that they will be exploited by people with access – or gain access through nefarious methods – to their investment portfolio. Seniors and vulnerable persons lose billions of dollars each year. Remarkably, 90% of the people to take advantage of senior investors are members of their own family. Attorneys who represent senior clients need to know the signs of vulnerability, red flags that their clients are being exploited, what laws apply, and rules lawyers must follow in these matters.   Questions our speakers answer: What is senior / vulnerable investor exploitation?   Who is protected by state and federal laws?   How prevalent is senior financial exploitation? What do the numbers tell us?  What is the pace of financial abuse SAR filings by securities firms?  What are the most popular scams?   What is diminished capacity?  What are the red flags indicating possible exploitation?  What are the laws, rules, and regulations governing law firms?  What are some best practices for law firms?  How can firms best protect their senior clients?   On Demand CLE Webinar What You Get PowerPoint and supplemental materials. Complete recording for later review. Answers to your questions via email. Invitation to contact speakers. 1.5 CLE credits (for licensed attorneys). CLE assistance.* *Subject to state bar rules. For licensed attorneys.  Register Meet the Speakers Joseph Calabrese Bressler, Amery & Ross, P.C. A 1991 Graduate of St. John’s University Law School, Mr. Calabrese brings 30 years of practice and 18 years of Securities Litigation/Regulatory experience to his role as principal in the New York office of  Bressler, Amery & Ross’s Financial Institutions Group. He began his career as a Wall Street litigator as an associate general counsel for Citigroup’s Smith Barney and […]

    Lien Resolution: Government & Private Plans Get Aggressive (Against Attorneys)

    Includes Nearly 75 minutes of insights from experienced professionals. CLE credit: 1+ (subject to bar rules). For CLE questions: CLE@LitigationConference.com The complete Power Point presentation. Continued access to the complete recording for later use. Answers to your questions via email to the presenters or write to HB and we will be sure to contact the speakers. What can you do to settle personal injury suits cleanly and avoid costly litigation and penalties? What recent cases can inform you about protecting your settlements and, as attorneys, yourselves, from post-settlement federal lawsuits? How can your firm set itself up to meet government expectations? What role might experts play in navigating these pitfalls? Medicare Advantage (42 USC § 1395w-22) Federal Medical Care Recovery Act (FMCRA) (42 USC § 2651) Armed Forces Act (10 USC §1095) Veterans’ Benefits (38 USC §1729) Third-Party Collection Rules (32 CFR 537.24; 38 CFR 17.101, etc.) Set-Asides under the Medicare Secondary Payer Act (42 USC § 1395y(b)(2)] On Demand Registration Lien Resolution Government & Private Plans Get Aggressive (Against Attorneys!) On Demand | Recorded September 2020 It is increasingly common these days. Personal injury attorneys settle a case, only to find themselves sued by a U.S. Attorney for failing to reimburse Medicare for conditional payments as required by the Medicare Secondary Payer Act. In some cases the attorney may be required to pay fines in addition to the reimbursements and interest, a costly proposition. Are you up to speed on issues surrounding Medicare Advantage, TRICARE, veterans’ claims, and Medicare set-asides? Join nationally recognized healthcare lien and resolution expert Franklin P. Solomon and go-to lien resolution provider Brett Newman as they offer a practical, in-depth CLE presentation. Franklin P. Solomon, Esq. Attorney & Founder, Solomon Law Firm  A graduate of Rutgers University School of Law at Camden, Franklin Solomon is based in Cherry Hill, NJ, with a practice focused on evaluation, litigation and resolution of healthcare “liens” and reimbursement claims. Mr. Solomon represents personal injury victims and their attorneys […]

    Telepsychiatry: Mitigating the Risks

    REGISTER Registration Includes Nearly 90 minutes of insights from experienced professionals. CLE credit: 1+ (subject to bar rules). For CLE questions: CLE@LitigationConference.com The complete Power Point presentation. Continued access to the complete recording for later use. Answers to your questions via email to the presenters or write to HB and we will be sure to contact the speakers. Understand the risks associated with telepsychiatry and how to manage them.  Telemedicine has emerged as an important solution for healthcare in general and psychiatric medicine specifically during the current global pandemic. Remote access for sub-practices including addiction counseling have been commonly used. Our panel of psychiatric professionals who have served as expert witnesses and attorneys who counsel and represent physicians have prepared a 90-minute session to share insights with attorneys, physicians, healthcare providers, risk professionals, and more. Agenda Examining procedures and best practices that exist for ensuring confidentiality in a telemedicine practice How do you draft a telepsychiatric consent form? What is the emerging standard of care for telemedicine? Will the standard of care for telemedicine become a national standard? (Should it?) Review the case law addressing telemedicine or telepsychiatry How do the HIPAA regulations and HITECH privacy laws impact telemedicine? How have the HIPAA regulations and HITECH privacy laws been relaxed during the pandemic? Will the relaxed HIPAA and HITECH regulations impacting telemedicine continue past the pandemic? Which technical platforms are preferred? Which ones to avoid? Panelists Mark Levy, M.D., Medical Director at fpamed David Kan, M.D., UCSF Psychiatry Department and the California Society for Substance Abuse Medicine Ayesha Ashai, M.D., associated with fpamed Stephen M. Fatum, J.D., Partner, Barnes & Thornburg LLP Angela W. Russell, J.D., Partner, Wilson Elser Moskowitz Edelman & Dicker LLP Meet our physician and attorney panelists. Mark Levy MD Medical Director fpamed Dr. Levy is a graduate of Columbia College (A.B. 1967) and the Columbia University College of Physicians and Surgeons (M.D. 1971) in New York. He is a Physician […]

    The Commercial Drone Industry: Privacy, Security, Threats, and Mitigation of Risk

    HB presents a CLE-eligible webinar Now on-demand at the West LegalEdcenter THE COMMERCIAL DRONE INDUSTRY Privacy, Security, Threats, and Mitigation of Risk Drones have become an increasingly valuable tool for businesses of all types and sizes. Drones are already being used in many applications, but more will certainly arise as the technology advances. This means that certain risks, like cyber threats, will also continue to present themselves. Protecting the transmission and storage of data collected through drones is critical. Unfortunately, security usually comes as an afterthought. The drone industry is part of the aviation industry, which, based on its knowledge, keeps safety as a number one concern. Part of that safety is having proper protection for your systems, including security as a fundamental design principle. Take this webinar to gain insights on the topics listed below, and shared by an attorney who practices on the cutting-edge of this evolving technology. Topics: Defining drones. Current and future applications. FAA Modernization and Reform Act of 2012. FAA Part 107 Regulations and waivers. Resources, e.g. the FAA Drone Zone and LAANC Portal. Penalties for violations. Privacy implications. Drones as weapons. Vulnerability to cyber attacks. Take it now! What you get: 1+ CLE credits (subject to bar rules). Insights from an experienced professional who specializes in this area of the law. The complete PowerPoint presentation. Continued access to the complete recording for later use. Answers to your questions. Fee: No additional charge to subscribers to the West LegalEdcenter. Non-subscribers may take the course for $170. Meet the Speaker Kathryn Rattigan Robinson & Cole LLP Kathryn Rattigan is a member of the firm’s Business Litigation Group and Data Privacy + Cybersecurity Team. She advises clients on data privacy and security, cybersecurity, and compliance with related state and federal laws. She assists clients in assessing risks related to technology and software contracts, as well as with compliance-related issues with outsourcing and […]

    The Intersection of Privacy and Antitrust Webinar Now Available On-Demand on the West LegalEdcenter

    Available as part of your subscription to The Thomson Reuters West LegalEdcenter®. Don’t subscribe to the West LegalEdcenter? This webinar is still available directly from HB. Take it now! Questions for speakers Questions@LitigationConferences.com CLE questions CLE@LitigationConferences.com Check out the MoginRubin blog for more insights on antitrust and privacy law. What attorneys and companies need to know about the increasing interplay between these critical areas of the law.  Highly publicized cases and investigations in the U.S. and Europe of big technology, e-commerce, and social media companies demonstrate how anti-competition laws are being used to scrutinize and challenge not only how these corporations conduct themselves in the marketplace, but the very core of their colossal success: the mass collection and utilization of user data. Are the privacy and antitrust worlds beginning to cross over? Or do they simply run parallel while addressing entirely different types of conduct? Whatever the answer, data is the raw material that drives the likes of Google, Facebook, Apple and Amazon, so how it is handled is a critical question when counseling clients on mergers and acquisitions. Moderator Daniel J.  Mogin | Managing Partner, MoginRubin LLP Speakers Jennifer M. Oliver, CIPP/US | Partner, MoginRubin LLP Thomas N. Dahdouh | Director, Western Region, Federal Trade Commission Franklin M. Rubinstein | Partner, Wilson Sonsini Goodrich & Rosati Randi W. Singer, CIPP/US, CIPT | Partner, Weil, Gotshal & Manges Contributor Dina Srinivasan | Independent Researcher & Author of The Antitrust Case Against Facebook Dina was unable to present but we thank her for her content contributions.  Agenda Who should regulate privacy violations in the U.S.? Which antitrust issues implicate privacy concerns? What role does machine learning play on the competitive landscape? What is big data really? How is it different from “data”? What are the elements of effective merger reviews? What are the appropriate remedies? What are “notice-and-choice” versus “harms-based” approaches? Plus answers to your questions. Send them to Questions@LitigationConferences.com.

  • The Wrong-Headedness of Hindsight Standards — Michelle Yeary | Drug & Device Law Blog

    Dechert LLP attorney Michelle Yeary cautions against applying perfect hindsight to drug liability.

    “We all know hindsight is 20/20.  And, it’s easy.  There are dozens of television and radio programs that thrive on Monday morning quarterbacking.  There’s no risk in saying the coach should have called for a pass when you already know the run didn’t work.  It’s also dangerous because it’s easy.  People are often too quick to point out that you should have taken path B after everyone learns path A is full of potholes.  Pointing it out is one thing, holding you liable for it is another.”

    Yeary takes a look at what happened in Holley v. Gilead Science, Inc., 2019 WL 2077845 (N.D. Cal. May 10, 2019). The case involves two of the main active ingredients in AIDS drugs: TDF and TAF. The plaintiff alleges that the defendant should be responsible for allegedly knowingly using TDF over TAF (allegedly a safer alternative). TDF was FDA approved first and TAF second.  Unfortunately, Yeary wrote, hindsight “can be used to demand perfection,” allowing  plaintiffs to “proceed on what is essentially a stop-selling theory,” that first-generation drugs should not be submitted to the FDA because, in hindsight, “later approved treatments were safer.” That’s what happened in Holley, she said.

    Read the complete post by Michelle Yeary on the Drug and Device Law Blog here. 

    Read the opinion here.

  • J&J Hit with $120 Million Verdict at Mesh Trial

    A Philadelphia jury returned a $120 million verdict against Johnson & Johnson after finding that a negligently designed pelvic mesh implant caused chronic pain and suffering, which left plaintiff Susan McFarland incontinent and unable to have sex for the last 10 years. McFarland alleged the implant she received in 2008 caused the product to saw through the soft tissue in her pelvis and become exposed in her vagina. She had to undergo a second surgery to remove a portion of the implant (Susan McFarland,et al. v. Ethicon Inc., et al., No. 130701577, Phila. Comm. Pls. Ct.).

    This is the second of two trials. The jury in the first trial was deadlocked, unable to agree on the extent of negligence of the design of the Ethicon product. Tracie Palmer, McFarland’s attorney, added in the second trial that the vaginal mesh was on market prior to clinical studies determining its safety and efficacy. 

    Defense attorney Adam Spicer maintained that the chronic pain McFarland experienced could be due to other causes, including her age. He said the product had been used for years prior. 

    McFarland’s case is one of more than 100,000 cases brought together in the MDL, down from nearly 105,000 cases against seven manufacturers.  The MDL will be closing and there will be two more waves of trial, with next wave comprising 150 cases. Final settlement conferences are scheduled for August 1 with trial set to begin August 14.

    McFarland and her husband are represented by Tracie Palmer, Braden Lepisto, Shanin Specter and Lee Balefsky of Kline & Specter PC.

    Ethicon is represented by Kate Skagerberg of Beck Redden LLP, Adam Spicer, Paul Rosenblatt and Jordan Walker of Butler Snow LLP, and D. Alicia Hickok, Kenneth Murphy and Melissa Merk of Drinker Biddle & Reath LLP.

  • Suits Allege Apple Concealed Knowledge of iPhone 7 Defect

    Apple Inc. has been sued in federal courts in Illinois and California for allegedly knowingly selling iPhone 7 and 7 plus models with an audio chip defect, called the “Audio IC Defect” or “Loop Disease” by consumers, which causes an array of operational issues.

    The bug gums up handset audio functions, grays out speaker buttons during calls, and degrades microphone fidelity.  And if that’s not enough it can kill Siri’s voice command capabilities.

    The plaintiffs accuse Apple of actively concealing the Audio IC Defect while advertising the iPhone 7 as “the best iPhone we ever made.”

    The plaintiffs claim that when they first experienced operational problems Apple didn’t offer complimentary repairs.

    The suits allege breach of warranty and violation of California and Illinois consumer protection laws. Plaintiffs seek class certification, damages, attorneys’ fees, and injunctive relief. In Illinois, the plaintiffs may also try to force Apple to repair, recall, and/or replace current defective iPhone 7s in the United States and notify all purchasers of the Loop Disease.

    Evidence shows “Apple’s internal acknowledgement and subsequent discontinuation of their out-of-warranty repairs without public announcement of the Audio IC Defect amounts to misrepresentation and concealment of the Audio IC Defect,”  the California complaint in Casillas v. Apple reads. 

    Complaints available on Scribd.com.

    Casillas v. Apple, N.D. Calif., No. 3:19-cv-2455

    Castelli v. Apple, N.D. Ill., Eastern Div., No. ______

  • Philadelphia Jury Hits J&J with $120M Award in Mesh Injury Case — Law360

    [one-half-first][/one-half-first] [one-half]

    “Jurors credited claims from Susan McFarland that the negligent design of a mesh implant she received in 2008 caused the product to saw through the soft tissue in her pelvis and become exposed in her vagina. She was eventually forced to undergo a second surgery to remove a portion of the implant.

    “The pain she’s been left with as a result of the complications, she says, has prevented her from having sex with her husband for the last 10 years.

    “This is the second time jurors have been asked to determine whether McFarland and her husband should be awarded damages for injuries she attributes to alleged defects in a so-called TVT-O implant she received to treat urinary stress incontinence.”

    Read the complete article on Law360 here. [/one-half]

  • Top Class Actions: Vaccine Litigation Case Roundup

    [one-half-first][/one-half-first] [one-half]There have been numerous lawsuits filed alleging injuries caused by the shingles vaccine Zostavax. Cases have stated they were not warned of the adverse side effects of the vaccine alleging it caused the diseases it is meant to prevent, among other things.

    Here is what the CDC says to consumers: “Your risk of shingles and postherpetic neuralgia (PHN) increases as you get older. CDC recommends that people 60 years old and older get shingles vaccine (Zostavax®) to prevent shingles and PHN. Shingrix (recombinant zoster vaccine) is the preferred vaccine, over Zostavax® (zoster vaccine live), a shingles vaccine in use since 2006. Zostavax may still be used to prevent shingles in healthy adults 60 years and older. For example, you could use Zostavax if a person is allergic to Shingrix, prefers Zostavax, or requests immediate vaccination and Shingrix is unavailable. Zostavax (zoster vaccine live) was licensed by the FDA in 2006. This vaccine reduces the risk of developing shingles by 51% and PHN by 67%. It is given in one dose as a shot, and can be given in a doctor’s office or pharmacy.“

    Read more: https://www.cdc.gov/vaccines/vpd/shingles/public/zostavax/index.html

    The vaccine is produced by Merck & Co.  Their product information can be found here: https://www.merckvaccines.com/Products/Zostavax

    Here is a roundup of the cases filed.

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    1.Husband and Wife File Zostavax Shingles Vaccine Lawsuit 

    “A North Carolina husband and wife recently filed a new Zostavax shingles vaccine lawsuit against pharmaceutical giant Merck & Co., alleging the vaccine caused serious side effects.

    “The plaintiff, Cecilia S., says she was inoculated with the Zostavax vaccine on March 5, 2017, in order to prevent shingles (or herpes zoster). Unfortunately, the day after receiving this vaccine, Cecilia alleges she suffered from a number of problems, including herpes zoster, cellulitis, and postherpetic neuralgia.”

    2. Zostavax Lawsuit Says Vaccine Caused Shingles

    “West Virginia patient has filed a Zostavax lawsuit claiming the shingles vaccine gave her shingles instead of preventing her from getting it.

    “Shingles is a rash caused by a virus, and can have lasting effects, according to Science News. Shingles is more common in older people, and recently, Pharmacy Times reported that there has been a push to increase vaccination rates.”

    3. Can You File a Shingles Vaccine Lawsuit?

    “Some patients have come forward with reports of major complications after treatment with Zostavax, a popular shingles vaccine—and some have even filed a shingles vaccine lawsuit over these Zostavax side effects.”

    4. No Warning of Severe Reactions to Shingles Vaccine, Couple Claims

    “A couple from Illinois alleges they are suffering from severe reactions to shingles vaccine, complications that pharmaceutical company Merck allegedly failed to warn about.

    “The couple filed legal action after discovering other patients had reported similar adverse vaccine reactions soon after getting the Zostavax shot.

    “Plaintiffs Victoria and Earl V. filed this Zostavax lawsuit alleging Victoria developed shingles, or herpes zoster, despite having been vaccinated against it.”

    5. Lawsuit Alleges Hearing Problems Due to Zostavax Shingles Vaccine

    “Plaintiff Kim M. is the latest to lodge a lawsuit against Zostavax maker Merck and Company, arguing that the shingles vaccine causes preventable and dangerous Zostavax side effects such as hearing loss. She argues that she might have made a different decision about getting the shot if she had known about the risks.

    “The plaintiff alleges that she received the Zostavax vaccine for regular health purposes and prevention of shingles in February 2016 while a resident of California.”

    6. Lawsuit Alleges Shingles Vaccine Adverse Effects are Permanent 

    “A couple has filed a lawsuit alleging they suffer from shingles vaccine adverse effects.

    “Plaintiffs Kathleen H. and Joseph W. say Kathleen received the Zostavax vaccine in 2017 for the prevention of shingles, medically known as herpes zoster.

    “They allege she suffered severe side effects from the inoculation, including a stroke, physical limitations, mental and emotional distress and severe, permanent personal injuries.”

    7. Common Zostavax Shingles Vaccine Complaints Named in New Lawsuit

    “The Zostavax shingles vaccine emerged on to the market as a new option for people at risk for developing shingles to guard against it. The CDC recommends that individuals aged 60 and older get the shingles vaccine whether or not they remember having had chicken pox previously in their life. According to research studies, more than 99 percent of Americans 40 and beyond have gotten chickenpox even if they don’t remember getting the disease.”

    8. Growing MDL Alleges Serious Zostavax Shingles Vaccine Reactions

    “Merck & Co. is facing a growing multidistrict litigation (MDL) consisting of similar claims alleging patients developed serious side effects from the company’s Zostavax shingles vaccine.

    “One of the most recent Zostavax shingles lawsuits was filed by a woman from Tennessee, who alleges Merck failed to disclose the full scope of potential vaccine reactions.”

    9. Zostavax Lawsuit alleges Vaccine caused Permanent Cardiovascular Complications 

    “This Zostavax lawsuit is joining a growing multidistrict litigation (MDL), which consists of similar claims alleging Merck failed to warn them against the full severity of the potential side effects associated with their shingles vaccine.

    “Plaintiff couple Terrance and Brenda O. conjointly filed this Zostavax lawsuit, stating the side effects of the shingles has permanently impacted their marriage and their quality of life. Like numerous other patients in the United States, Terrance says he was prescribed the Zostavax injection to prevent shingles soon after he turned 60.”

    10. Lawsuit Claims Shingles Vaccine and Eye Problems Connection

    “Many consumers have already come forward to allege a connection between the Zostavax shingles vaccine and the development of shingles itself.

    “However, more patients are now arguing that the shingles vaccine and eye problems is another troubling connection about which the public is not aware.”

  • 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]