Legal Protection and Reasonable Treatment for
Corporations Throughout the Entire Product Life Cycle

Welcome New Members







Bobbie Hooper
Buchalter

Marie E. Chafe
Conn Kavanaugh Rosenthal Peisch & Ford, LLP.

Rachel M. Lary
Lightfoot, Franklin & White LLC


Carlos M. Lazatin
O'Melveny & Myers LLP


Brent Moffett
Moffett Packus and Sims


Sean P. Fahey
Troutman Pepper Hamilton Sanders LLP


William D. Purnell
Bowman and Brooke LLP


Reid Carpenter
Lightfoot, Franklin & White LLC


Clem C. Trischler
Pietragallo Gordon Alfano Bosick & Raspanti, LLP


Joseph L. McReynolds
Deutsch Kerrigan LLP


Anne Marie Ellis
Buchalter


Lem E. Montgomery III
Butler Snow LLP


Andrew Tauber
Winston & Strawn LLP

Click here to see the full list of new members

Members in the News

Cheryl Bush Sworn in as a Regent of the American College of Trial Lawyers

Cheryl Bush, Founding Member of Bush Seyferth PLLC (BSP Law), was sworn in as a Regent of the American College of Trial Lawyers (ACTL) at the Annual Meeting on October 2, 2021. Bush will serve as Regent of the ACTL’s Region 9, which serves Michigan, Ohio, Kentucky, and Tennessee. As a Regent, she will also be assigned to several committees, including Advocacy in the 21st Century, Attorney-Client Relationships, Distinguished Pro Bono Fellows, and the Emil Gumpert Award Committee. Her term began on October 2, 2021, and will last through the 2025 ACTL Annual Meeting.
Bush handles high-stakes cases across the country and has won 95% of her jury trials. She is actively involved in the National Association of Minority & Women Owned Law Firms and is a Senior Life Fellow of the American Board of Trial Advocates. Bush is also a member and Former Vice Chair of the Product Liability Advisory Council. She received her J.D., cum laude, from the University of Michigan Law School.
Bush Seyferth PLLC

PLAC’s Mike Zogby Speaks with Law360 about NJ’s Proposal Regarding 3rd-Party Funding Disclosures

April 27, 2021
Law360 turned to PLAC member Michael C. Zogby of Faegre Drinker for insight about the U.S. District Court for the District of New Jersey’s recent proposed amendment to its local civil rules, which would require litigants to disclose the identities of outside funders and whether they have input on litigation decisions. Zogby, deputy leader of the firm’s product liability and mass torts practice and co-chair of the health & life sciences litigation team, shared commentary with associate Kaitlyn Stone.

Zogby told Law360 that he believes the court has the chance to be a leader in terms of third-party litigation funding disclosure with its proposed rule change. “We have so many large-scale, important mass actions right now that this is a perfect example, and timetable, for the court to put in transparency and disclosure guidance to really help with the cases that are being filed in the district,” he explained. “It’s long overdue nationally, but this does show that the District of New Jersey is ahead of the curve in making sure that a rule is on the books.”

Kaitlyn Stone, one of PLAC’s emerging leaders, agreed with Zogby, saying “It’s just another example of the District of New Jersey being on the forefront of an issue. They really are on top of issues, and even if we would have liked to have seen it a bit earlier, they still are ahead of the curve in terms of what’s been happening nationally.”

Read their full commentary here (subscription to Law360 required).

State of Oklahoma v. Johnson & Johnson, et al

On November 9, 2021, the Supreme Court of Oklahoma issued a highly significant decision that rejected efforts by the plaintiffs’ bar to avoid traditional principles of product liability through a sweeping application of nuisance law. The Court reversed the trial court’s decision in State of Oklahoma v. Johnson & Johnson, et al. which had held J&J’s lawful conduct of marketing and selling opioid products constituted a public nuisance under Oklahoma nuisance law. The trial court ordered J&J to pay $465 million to fund one year of the State’s abatement plan.

In reversing the district court, the Oklahoma Supreme Court offered a sound and detailed analysis of the numerous reasons nuisance law should not apply to the sale of products, providing persuasive authority for other courts throughout the United States addressing similar theories of liability. The Court adopted the rationale urged in PLAC’s amicus brief, recognizing that “[p]ublic nuisance and product-related liability are two distinct causes of action, each with boundaries that are not intended to overlap,” and that “public nuisance is fundamentally ill-suited to resolve claims against product manufacturers.”

The Court also addressed other issues PLAC raised in its amicus brief, including that the district court improperly held J&J responsible for harm allegedly caused by opioids sold by other companies. In addition, the Court recognized a manufacturer lacks control over its product once sold, noting a “product manufacturer’s responsibility is to put a lawful, non-defective product into the market. There is no common law tort duty to monitor how a consumer uses or misuses a product after it is sold.”

PLAC’s brief was authored by Theodore J. Boutrous Jr., Christopher D. Dusseault and Samuel Eckman of Gibson, Dunn & Crutcher, LLP, with support from Oklahoma counsel John H. Tucker and Kerry R. Lewis of Rhodes, Hieronymus Jones Tucker & Gable.  

View PLAC’s Brief View the Court’s Opinion

Glover v. Bausch & Lomb, Inc.

On October 22, 2021, the Connecticut Supreme Court heard oral argument in Glover v. Bausch & Lomb, Inc., which presents two certified questions from the Second Circuit Court of Appeals regarding Connecticut’s product liability laws.

The first certified question asks whether Connecticut law recognizes a tort cause of action based on a medical device manufacturer’s alleged failure to report adverse events to the FDA and comply with post-approval requirements. The questioning from the Court focused on a provision of the state’s product liability statute providing that a product warning may be inadequate if it is not devised to communicate “with the person best able to take or recommend precautions against the potential harm.” The Court’s questioning suggests it may be divided as to whether a regulatory agency like the FDA fits within this statutory text. Traditionally, this provision in medical device cases has been interpreted to apply solely to doctors consistent with the learned intermediary doctrine. The Court was also interested in the extent to which out-of-state decisions that the parties cited dealt with similar statutory language.

The second certified question asks whether Connecticut’s product liability statute bars a claim under the state’s consumer protection statute based on a medical device manufacturer’s alleged deceptive and aggressive marketing of its product. There were very few questions from the Court on this topic. The limited questioning focused on the scope of the plaintiff’s marketing claim and the extent to which the marketing claim is simply a veiled product defect claim.

Click here to view the oral argument.

In Re: Amendment to Florida Rule of Civil Procedure 1.280, No. SC21-929

PLAC is pleased to join ADTA, ATRA, DRI, IADC, The Washington Legal Foundation, and other national defense bar groups, business associations, and civil justice/public policy organizations in a letter to the Florida Supreme Court supporting its recent rule amendment codifying the “apex doctrine” and extending it to current and former corporate officers to shield such individuals from abusive discovery. Many thanks to Mark Behrens and his team at Shook, Hardy & Bacon who prepared the letter and assembled the coalition of defense organizations to voice their support for the amendment.

LCJ Launches New ‘Don’t Say Daubert’ Web Portal as Advisory Committee on Evidence Rules Solicits Comments on Amendment to FRE 702

PLAC is teaming up with Lawyers for Civil Justice and other defense bar organizations to support a proposed amendment to improve and clarify FRE 702.  Attached is a message from LCJ describing the amendment and providing helpful background information.  We expect to submit a comment to the Advisory Committee on Evidence Rules on behalf of our members in the next several months.  If you have an example of erroneous judicial application of expert evidence admissibility standards you would like PLAC to consider for its comment, please send it to [email protected] by November 1, 2021.

Daubert_1993127.jpg
 

LCJ Launches New ‘Don’t Say Daubert’ Web Portal as Advisory Committee on Evidence Rules Solicits Comments on Amendment to FRE 702

New resource page highlights courts’ repeated misapplication of expert evidence admissibility standards, encourages public to submit comments supporting proposed reforms

 

Arlington, VA – August 9 – Lawyers for Civil Justice (LCJ) – Today, Lawyers for Civil Justice launched a new web portal focused on expert evidence reform, Don’t Say Daubert, highlighting the need for amendment to Federal Rule of Evidence (FRE) 702. The launch of the website comes as the Advisory Committee on Evidence Rules invites public comments on a proposed amendment to FRE 702 that would clarify the widely misunderstood standards for expert evidence admissibility in U.S. federal courts.

 

“No matter how you pronounce it, the famous Daubert Supreme Court case doesn’t set the standards for expert evidence admissibility – Rule 702 does,” LCJ General Counsel Alex Dahl said. “The amendment process is a perfect time to get rid of the inaccurate slang by saying ‘Rule 702’ when referring to the standards for admitting expert testimony. We strongly encourage members of the bar to submit comments in support of the Advisory Committee’s amendment, which will clarify the standards for expert evidence and bring greater fairness to our civil justice system.”

 

Since the Supreme Court’s landmark 1993 decision in Daubert v. Merrell Dow Pharmaceuticals, the word “Daubert” has become a de facto shorthand for the standard by which expert evidence is evaluated for admissibility before a federal civil jury. However, it’s Federal FRE 702, not Daubert, that sets the standard that courts must follow in determining whether expert testimony is admissible.

 

The use of ‘Daubert’ instead of ‘Rule 702’ affects people’s understanding of what standards apply to those motions. While the ‘Daubert standard’ is based on a lineage of case law, the more recent Rule 702 standard is based on the 2000 amendment to the rule approved by the Supreme Court and Congress, codifying it into law. The current proposed amendment to Rule 702 would further clarify that courts are responsible for determining the admissibility of expert opinion testimony, rather than leaving fundamental questions about the basis of expert opinions to a jury. The widespread misunderstanding of expert evidence admissibility standards in both trial and appellate courts within every federal circuit for more than two decades have led to decisions that are patently incompatible with Rule 702.

 

The web portal outlines the history behind expert evidence admissibility standards, which shows that the all-too-common invocation of “the Daubert standard” should be discarded and replaced with “the Rule 702 standard.”

 

The Advisory Committee on Evidence Rules opened its six-month public comment period on Friday, August 6. To learn why FRE 702 needs to be amended and how to submit a comment on the proposed rulemaking, visit www.DontSayDaubert.com.

 

To read the full text of the proposed amendment to FRE 702, click here.

Amendments to Florida Rule of Civil Procedure 1.510

May 4, 2021

As a result of the Wilsonart case, where PLAC filed an amicus brief recommending adoption of the federal summary judgement rule, the Florida Supreme Court has adopted almost all of the text of Federal Rule of Civil Procedure 56. As described in the court's opinion, the new rule in Florida will help eliminate frivolous lawsuits before they get to trial. A few highlights about the new rule.

  • First, while federal rule 56(a) says that the court should state on the record its reasons for granting or denying a summary judgment motion, new rule 1.510(a) says that the court shall do so.
  • Second, the new Florida rule, unlike its federal counterpart, requires the movant to file its summary judgment motion at least 40 days before the hearing.
  • Finally, note that the new rule will apply to all summary judgment motions decided after May 1, 2021. If a motion for summary judgment has already been denied under the pre-amendment rule, the parties should have a reasonable opportunity to file a renewed motion under the new rule.

 


Wendy F. Lumish
Bowman and Brooke LLP

THE U.S. SUPREME COURT’S FORD MOTOR COMPANY DECISION: JURISDICTIONAL SYMPATHY PREVAILS OVER LOGIC

April 22, 2021

David R. Geiger

In its recent decision in Ford Mtr. Co. v. Montana Eighth Judicial Dist. Ct., the Supreme Court held due process permitted jurisdiction over an out-of-state vehicle manufacturer for product liability claims brought by forum residents following a forum accident, even though defendant did not design, manufacture or sell plaintiffs’ vehicles in the forum. The Court concluded defendant’s current advertising, sales and (purported) servicing of the same vehicle models were sufficiently “related” contacts to render jurisdiction fair.

PLAC’s amicus brief writer, Dave Geiger, has authored an article arguing the Court purports to rely on precedent and principles that do not support its decision, and the decision introduces vast uncertainty into a legal area the Court painstakingly clarified over the last decade. Questions raised include whether there is jurisdiction only if plaintiff’s residence or accident was in the forum or whether both are required; whether sales other than of the accident model count as sufficiently “related;” whether the Court really intended to support jurisdiction over past events by the manufacturer’s current forum contacts; and whether the Court really intended to impute to the manufacturer vehicle servicing performed by independent dealers.

To read the full article, published by the Washington Legal Foundation, click here.


David R. Geiger
Foley Hoag LLP

Featured Amicus Brief

Volkswagen Aktiengesellschaft v. Ohio ex rel. Yost, S. Ct. No. 21-312
PLAC and the Motor & Equipment Manufacturers Association (MEMA) filed a brief in support of Volkswagen. Volkswagen is challenging an Ohio Supreme Court decision that allowed Ohio to seek penalties under state anti-tampering laws for fleet-wide vehicle-emission system updates. The brief urges the Supreme Court to grant certiorari and hold that the Clean Air Act preempts States and localities from regulating manufacturers’ post-sale, nationwide updates to vehicle-emission systems. It builds on PLAC and MEMA’s February 2021 brief in Volkswagen Group of America, Inc. v. Environmental Protection Commission of Hillsborough County, S. Ct. No. 20-994 – involving a similar Ninth Circuit decision where two counties sued Volkswagen – that remains pending at the Supreme Court. The brief emphasizes the massive penalties at stake – potentially trillions of dollars. And it explains that if the decisions of the Ohio Supreme Court and the Ninth Circuit are allowed to stand, there would be a patchwork of emissions regulations across the country, leading to needless litigation and increased costs for manufacturers and consumers.
Nicole A. Saharsky and Eric A. White of Mayer Brown LLP authored the brief.

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Amicus Program

PLAC's mission is to obtain fairness and balance in the common law of product liability. A primary tool to accomplish this mission is PLAC's Amicus Curiae Program, often called “The heart and soul of PLAC.”

PLAC has filed more than 1,100 amicus briefs, written by some of the nation’s top appellate practitioners. Our briefs have been accepted in virtually every state and federal court in the U.S. They are routinely acknowledged, quoted, and praised by courts in published opinions.

PLAC’s amicus briefs help shape the law for all manufacturers on important issues.

Click here to learn more about PLAC’s Amicus Program or to submit a request for amicus support. 

Upcoming Events

Webinars:        
December 8, 2021 at 2:00 PM ET: Engineering Analysis for Product Recall Decisions

Questions? Email us at [email protected].

Our Mission

PLAC is a specialty bar association focusing on complex litigation and regulatory issues in the area of product development and product liability. Our not-for-profit association of product manufacturers, suppliers, retailers and select regulatory, litigation and appellate professionals who work to shape the common law of product liability and complex regulation, provide guidance on changing regulations, and strategically help corporations manage risk throughout the entire product lifecycle. PLAC is a unique resource for companies who must defend their products’ integrity and their companies’ reputation.