In a recent decision, the Eleventh Circuit affirmed the summary judgment victory of Zeltiq Aesthetics, Inc. in a failure-to-warn and design defect lawsuit regarding its CoolSculpting medical device and found that a health care provider’s misunderstanding of an adverse effect did not bear on the adequacy of the product’s warning.In a recent decision, the Eleventh
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Cherry-Picking Epidemiological Data Proves Fruitless for Zantac MDL Plaintiffs
The plaintiffs in the Zantac MDL faced a challenge that is common in products liability cases: How to handle evolving science and conflicting epidemiological data.The plaintiffs in the Zantac MDL faced a challenge that is common in products liability cases: How to handle evolving science and conflicting epidemiological data. Predictably, the plaintiffs hired experts to…
The Engineer, the Arborist, and the Lay Juror: Courts Still Struggle to Define When Expert Testimony Is Required in Product Liability Cases
A recent ruling by the District of Maryland in Garcia v. Sherril, Inc. demonstrates the ongoing struggle by courts to distinguish between when plaintiffs must produce expert testimony in product liability cases and the danger that courts may permit jurors to comment beyond their shoes in cases involving technical subject matter.An ultracrepidarian expresses views on matters…
Zantac MDL Decision Highlights Need for Rigorous and Objective Approach in Bradford Hill Analyses
As part of our continuing commentary on the Zantac decision, this review examines the court’s rationale for doing so and highlights potential avenues for Daubert challenges to experts conducting Bradford Hill analyses.As detailed in our prior post, the U.S. District Court for the Southern District of Florida recently granted summary judgment against more…
Zantac MDL Decision Reinforces Principle that Lack of General Acceptance of an Expert’s Conclusions Raises a Red Flag
The Zantac MDL Court recently reinforced the important role of general acceptance of an expert’s conclusions to a court’s Rule 702 admissibility analysis.The Zantac MDL Court recently reinforced the important role of general acceptance of an expert’s conclusions to a court’s Rule 702 admissibility analysis.
The U.S. District Court for the Southern District of Florida…
Florida Court Declines to Find Exculpatory Clauses Preclude Strict Products Liability Claims
In a matter of first impression, a Florida appeals court recently held that a retailer’s exculpatory clause does not apply to claims brought under a theory of strict products liability.In a matter of first impression, a Florida appeals court recently held that a retailer’s exculpatory clause does not apply to claims brought under a theory…
Connecticut High Court Holds That “Unfair Trade Practices” Claims That Subsume Elements of a Product Liability Claim Are Barred
In a question of first impression certified to it by the U.S. Court of Appeals for the Second Circuit, the Supreme Court of Connecticut recently delivered a partial win for defendants facing state products liability and unfair trade practices claims arising from the same conduct.In a question of first impression certified to it by the…
Product & Mass Torts Summit 2022: Key Takeaways
Winston & Strawn LLP held its second-annual Product & Mass Torts Summit on June 7, 2022. The Summit harnessed the collective experience of Winston’s Product Liability & Mass Torts group as well as of esteemed in-house counsel guest speakers to explore effective strategies to capitalize on the changing legal landscape and combat common plaintiff tactics.UNSTACKING…
Don’t Say Daubert – Reviving Rule 702
For years, federal practitioners have referred to that standard as the “Daubert” standard, for the Supreme Court’s seminal decision in Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993). Daubert made clear that judges must act as gatekeepers when it comes to expert testimony and articulated various factors that they are to consider when deciding whether…
First PFAS Test Order Issued by EPA
The Environmental Protection Agency (EPA) issued the first in an anticipated series of test orders under Section 4 of the Toxic Substances Control Act (TSCA) on June 6, 2022. Under the order, the companies identified by EPA are required to conduct testing or submit certain existing data on per- and polyfluoroalkyl substances (PFAS).Key Takeaways:
- Government regulatory
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