Known to the State of California to Cause Cancer or Reproductive Harm – What is Proposition 65 and What You Need to Know

A majority of California voters in 1986 approved a ballot initiative known as Proposition 65, officially titled California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (“Prop. 65”).  Prop. 65 seeks to protect California’s drinking water sources from being contaminated with chemicals known to the State of California to cause cancer, birth defects or other reproductive harm and seeks to require businesses to warn when they knowingly and intentionally cause significant exposures to listed chemicals known to cause such harm.  In general terms, Prop. 65 requires businesses, manufacturers and certain others (such as employers) to inform Californians about exposures to such chemicals.  This is done through warning signs and warning labels. The purpose of this blog post is to provide an overview of Prop. 65 for companies who do business in California and to highlight some major changes to Prop. 65 which take affect later this year.

The scope of Prop. 65 in California cannot be overstated. Warning signs and labels are found in many types of businesses in California from bakeries to amusement parks to grocery stores.  You may also see Prop. 65 warnings on apartment buildings and commercial buildings.  Products themselves also carry warnings.  Common examples include leaded glass crystal, garden hoses and shovels, electrical cords, and ceramics (just to name a few).

Prop. 65 can be enforced not only by the State of California, but also by private individuals and groups acting in the public interest.  Private enforcement is an entire business and industry with law firms solely dedicated to these types of cases.  Enforcers are able to recoup a portion of the penalties paid through settlement of these claims and recoup their attorney fees as well.

The enforcement process begins when a Prop. 65 60-Day Notice is sent to the alleged violator.  This letter is also sent to the California Attorney General’s Office.  During this 60-day period, the Attorney General can decide if it wants to prosecute an action.  If the Attorney General does not take action, the private enforcer may file suit at the end of the 60-day period.   These notices are published on the Attorney General’s website. Read more ›

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State Court Relies Upon Supreme Court’s Bristol-Meyers Squibb Decision to Vacate Jury Verdict Against J&J

Baby powder product with talc mineral spilling over diagnosis record paper on doctor's pad with stethoscopeThe Supreme Court limited a striking vulnerability for product manufacturers in Bristol-Myers Squibb Co. v. Superior Court of California this summer when it ruled that out-of-state plaintiffs could not simply claim injuries that were similar to residents to support specific jurisdiction, but must demonstrate a connection between the forum and the specific claims at issue. That decision was used by a Missouri appeals court last month to reverse a $72 million verdict against Johnson & Johnson which found the company’s talc products cause ovarian cancer. Several other hefty St. Louis jury awards involving the company’s talc products could now face the same fate.

The Missouri case, Fox v. Johnson & Johnson, involved a St. Louis woman who was one of 65 plaintiffs (63 of which were non-residents) who claimed J&J’s Baby Powder and Shower to Shower talc products gave them ovarian cancer. The trial court exercised specific jurisdiction over J&J’s objection and motion to dismiss. The individual Missouri plaintiff’s case ultimately went to trial and Fox prevailed. Read more ›

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Lack of Substantiation Theories in False Advertising Cases—The Burden Lies on the Plaintiff

person reading label on supplement containerOften when we think of product liability we think of a product that doesn’t function as intended and causes some sort of damage resulting in warning, design and/or manufacturing defect claims.  However, another important aspect is advertising.  The purpose of this post is to focus on one very important aspect of the false advertising case: scientific substantiation.

Historically, plaintiffs rest false advertising claims upon allegations that marketing claims are unsubstantiated and not supported by reliable scientific evidence.  A recent trend however, as demonstrated by two decisions out of California, suggests courts may not recognize a private right of action for false advertising claims arising out of alleged improper scientific substantiation.

On April 21, 2017 the Ninth Circuit affirmed the district court’s dismissal of a proposed class action complaint in Kwan v. SanMedica Int’l[1], thereby confirming that California’s consumer protection and competition laws do not permit a private citizen to bring actions based only on allegations that the challenged advertising language lacked proper scientific substantiation.

Kwan involved the over-the-counter amino acid supplement SeroVital.  Plaintiffs’ operative complaint alleged that the defendants falsely represented that the product was clinically tested to, among other things, boost human growth hormone by a mean of 682%.[2]  Read more ›

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Proposed Legislation to Relax Rules on Medical Device Reporting Passes U.S. House

Blur of equipment and medical devices in modern operating roomOn July 13, 2017, the U.S. House of Representatives passed a bill that would triple the amount of time in which medical device manufacturers are required to report certain malfunctions of some products to the Food and Drug Administration.  Companies currently must report product malfunctions within 30 days; the new bill would allow companies up to 90 days to do so.  Notably, the proposed legislation does not change the amount of time for medical device manufacturers to report adverse events in which a patient has been injured or died.  Companies would still be required to report such adverse events within 30 days.

The bill, known as the FDA Reauthorization Act of 2017, reflects an agreement between the FDA and the medical device industry that, among other things, sets the amount of fees manufacturers pay the FDA to review their products.  The proposed legislation would be in place until 2022.  The U.S. Senate has not yet voted on the bill.

In addition to lengthening the time to report malfunctions, the bill would allow medical device companies to file summaries of previously reported product malfunctions instead of detailed, individual medical device reports. Read more ›

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Supreme Court Solidifies Specific Jurisdiction Analysis To Dismiss Product Claims Filed Against Non-Resident Defendant, Bristol-Myers Squibb Co.

Product manufacturers routinely hauled into court in far away, inconvenient jurisdictions can breathe a little easier with the Supreme Court’s decision this week in Bristol-Myers Squibb Co. v. Superior Court of California.

A group of plaintiffs, most of whom were not California residents, sued Bristol-Myers in California state court, alleging that the drug Plavix had damaged their health.  Bristol Myers is incorporated in Delaware and headquartered in New York.  It did not develop, create a marketing strategy for, manufacture, label, package, or work on the regulatory approval for Plavix in California, and Plaintiffs did not allege that they obtained the drug from a California source, that they were injured in California or were treated for their injuries in California.  Plaintiffs alleged only that Bristol Myers conducted research in California on other drugs and contracted with a California distributor.

The Supreme Court recognizes two types of personal jurisdiction. International Shoe Co. v. Washington, 326 U. S. 310, 316–317 (1945). A court with general jurisdiction has the authority to hear any claim against a defendant, even if the claim arose out of injuries that occurred in a different state. General jurisdiction derives from a defendant’s place of incorporation and/or principal place of business. Since Bristol Myers was neither incorporated nor had headquarters in California, general jurisdiction was lacking. Read more ›

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SCOTUS Decisions May Provide A Roadmap to Enforcing Arbitration Clauses Included In Product Packaging

It is open opinion season at the U.S. Supreme Court, and two recent decisions pertaining to the enforceability of arbitration clauses provide guidance to manufacturers looking to bind consumers through the use of product packaging.

In Kindred Nursing Centers Limited Partnership v. Clark, No. 16-32, 2017 WL 2039160 (U.S.S.C. May 15, 2017), the U.S. Supreme Court upheld application of a nursing home’s arbitration agreement to tort claims for alleged personal injuries suffered by patients under the home’s care.  Those holding the patients’ medical powers of attorney “signed an arbitration agreement with [defendant] on behalf of [the] relative.” Id. at *3.  Later, they brought state-court tort actions for wrongful death.  Id.  The defendant unsuccessfully moved to enforce the arbitration agreement.  The state supreme court held both agreements invalid, invoking specificity rules involving powers of attorney and singling out arbitration agreements for special scrutiny.  As described by the Court: Read more ›

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Lack of Specificity May Kill Parallel State Law Product Claims, But Not Fraud Claim

good manufacturing practices documentA Michigan district court judge determined last week that product liability claims against an FDA approved medical device manufacturer were preempted by federal law, but allowed the plaintiff’s claim of fraud against the manufacturer, Medtronic, Inc., to proceed at the state level. Although the court determined that plaintiff’s parallel state law product claims were insufficiently pled to survive preemption, it disagreed with the manufacturer that Current Good Manufacturing Practices (“CGMPs”) are too broad to potentially serve as the basis for parallel product liability claims in state court – a crack in the preemption door worth noting.  The court similarly refused to hem in the plaintiff’s parallel claim of fraud despite the most general assertions of malice, knowledge and intent with respect to the manufacturer’s product representations. The case is Canary v. Medtronic, Inc., No. 16-11742, 2017 WL 1382298 (E.D. Mich. April 18, 2017).

Federal Preemption of FDA approved medical devices was built into the Medical Device Amendments (“MDA”) of 1976:

“Except as provided in subsection (b) of this section, no State or political subdivision of a State may establish or continue in effect with respect to a device intended for human use any requirement—

  1. which is different from, or in addition to, any requirement applicable under this chapter to the device, and
  2. which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under this chapter.” (21 U.S.C. § 360k(a))

The provision has been interpreted as a two-prong test by the courts for determining if a state-law tort claim is preempted. First, the court must determine whether federal regulations exist for the device in question. If so, then the court must analyze whether the plaintiff’s product liability claims are anchored to any state law requirements out of sync with the provision. The Supreme Court has been careful to clarify that the MDA’s preemption provision should not hinder state and federal claims from being pursued in parallel if a state has made it unlawful to violate FDA regulations. Read more ›

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The Expert Report: Key Considerations

Product liability cases often present challenging and complex issues which require the use of experts.  If you are litigating in federal court, any expert you designate will be required to provide a written report[1].  The same, however, may not be true in state court.  For example, written expert reports are not required for designated experts in California[2] and Texas[3].  In New York, not only are expert reports not required but, even if one is made, it is not discoverable absent court order.[4]  Other jurisdictions only require the disclosure of certain information.  And some jurisdictions, although they do not require that an expert report be prepared, if an expert report is prepared, even draft reports may be discoverable.  Thus, as a starting point, it is imperative that you check the rules of your jurisdiction.  If you are in a jurisdiction where full expert reports are not required, deciding whether to have your expert prepare a written report in a products case is a decision of critical importance and should not be made lightly.  This blog post explores some important considerations to take into account when making this important decision, as well as some suggestions to ensure that any written report is as airtight as possible.

You might be thinking this is a no brainer: preparing a report is definitely going to be more costly than not.  You probably are right, but there are situations in which the preparation of an expert report could save time and money later down the road.  For example, a detailed and very strong report may help you leverage a settlement if you can strategically use it to educate the other side about the product at issue and the strengths of your case (and the weaknesses of theirs).  In other words, the weight of force behind an expert’s particular opinion might be so overwhelming that you can use that to your advantage.  For example, in a recent black mold case we handled, the force of evidence showing years upon years of research regarding mold toxicity (or lack thereof) was such that the opposing party was forced to try a new and novel theory to prove causation.  Additionally, a detailed report may shorten the amount of preparation needed for deposition in that your expert already has a very detailed roadmap outlining his or her opinions.  Read more ›

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Punitive Damages and an Essential Jury Instruction

inside of courtroomIn one of our recent posts we touched on punitive damages in the context of one of the Pinnacle Hip bellwether trials.  In this post, we address another interesting aspect of punitive damages: whether they can be used to punish a defendant for harms to nonparties.  The short answer is no, but as discussed below, it is not as straightforward as you might think and it is essential to protect yourself with the proper jury instruction.

Mayola Williams was the widow of a man named Jesse Williams.  Mr. Williams, a resident of the State of Oregon, had been a heavy smoker for much of his life.  Mr. Williams’s cigarette of choice was Marlboro, a brand manufactured by Philip Morris.  Mr. Williams died from smoking-related lung cancer and, following his death, Mrs. Williams sued Philip Morris for negligence and deceit.  Mrs. Williams sought compensatory and punitive damages claiming that Philip Morris falsely led her husband to believe that smoking was safe.

Plaintiff presented evidence during trial of the harm allegedly caused by Philip Morris to Mr. Williams as well as possible harm to other third parties.  However, no evidence was offered to establish an appropriate measure of damages to compensate such third parties for their injuries. Read more ›

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Lessons Emerging from Pinnacle Hip Bellwether Trials

hip implantIn a staggering verdict, a Texas jury recently awarded over $1 billion against Johnson & Johnson (“J&J”) and its subsidiary DePuy Orthopaedics Inc. (“DePuy”) (collectively referred to as “Defendants”) to six California plaintiffs who claimed the companies’ Pinnacle hip system’s Ultamet metal-on-metal implant caused metallosis, tissue death, bone erosion and other serious injuries.

Presently there are 9,000 plus lawsuits consolidated in a Multi-District Litigation or “MDL” presided over by U.S. District Court Judge Ed Kinkeade in the Northern District of Texas. This latest verdict was the result of the third bellwether test trial addressing the Pinnacle hip system, the first two of which had differing results. J&J won the first trial in 2014, but lost the second trial earlier this year when another Texas jury returned a $502 million verdict against J&J, which was later reduced to $150 million pursuant to Texas Civil Practices and Remedies Code Section 41.008(b) which caps exemplary damages. After the second trial, J&J moved to stay additional trials pending the resolution of the appeal of the second trial. J&J argued that several pieces of critical but inflammatory and prejudicial evidence were presented to the jury in addition to several other issues that the defendants wanted resolved by the Fifth Circuit prior to proceeding on with the rest of the cases. The Court ruled against the stay noting that the next trial would involve Plaintiffs from California, “rather than Texas or Montana like the previous bellwether trials, and will therefore present different legal and evidentiary rulings.” (Dkt. 665) The Court also pointed out that both sides agreed to this particular bellwether process to be supported and directed by the court. This is an important take away for future litigation. First, it is important, indeed imperative, to make any objections in a timely manner in order to preserve them. Second, it is very important when selecting the bellwether process to consider the different and unique legal theories presented in each unique case. Read more ›

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Products Liability Prevention & Defense
Our attorneys represent foreign and domestic designers, manufacturers, and distributors of a diverse array of products, from food and drugs to industrial equipment and building materials. We help clients respond to major personal injury and property damage claims in the form of single-product cases, class actions, mass torts, and multidistrict litigation, as well as all types of congressional, regulatory, or criminal investigations. Our team works closely with corporate counsel to minimize a company’s overall liability and establish efficient protocols for fielding claims and advise on labeling, marketing, manuals and instructions, supply and distribution contracts, and insurance and indemnification issues.
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