WTK Connect
This blog provides updates and important insights about products liability, commercial, and consumer litigation. It aims to educate our audience on the developments in these areas as well as to provide the audience with unique perspectives from seasoned defense attorneys. ______________________________________________________________________________________________________________________
- Winning the War on Allegedly Defective Products with Evidence of Industry Custom and Practice
Sep 27, 2018 | Posted by Robert K. Dixon | Topics: Automotive, Product Liability, Class Actions
The California Supreme Court recently ruled that manufacturers may present industry custom-and-practice evidence for certain purposes in strict products liability actions involving design defect claims. While the Court’s ultimate decision is a little convoluted, it can be summarized as follows: Evidence that a manufacturer’s design conforms with industry custom and practice is not admissible to show that the manufacturer acted reasonably in adopting a challenged design. However, such evidence is admissible to help the jury to determine “whether the product is as safely designed as it should be, considering the feasibility and cost of alternative designs.”
Continue reading... - California Court of Appeal Holds Attorney Is Not Bound By Settlement Agreement’s Confidentiality Provision Based on Boilerplate Language in the Signature Block
Aug 31, 2018 | Posted by Robert K. Dixon | Topics: Product Liability, Business Litigation, Warranty
Virtually all settlements include some type of confidentiality provision. Some confidentiality provisions may only require the parties to keep the terms and conditions of the settlement confidential; while others are more expansive, and require the parties as well as their attorneys to keep the settlement confidential. In settlement agreements with these more expansive confidentiality provisions, the parties’ attorneys typically sign the agreement.
Continue reading... - Lemon Law Fees Approved By Southern District Court
May 29, 2018 | Posted by James P. Leonard | Topics: Product Liability, Automotive, Warranty
After settling the underlying warranty claims, a dispute arose between the parties related to attorneys’ fees. Ultimately, plaintiff filed a petition for fees and costs, which was recently decided by U.S. Magistrate Judge William V. Gallo. Of likely interest to companies faced with California Song-Beverly Consumer Warranty Act (“Song-Beverly”) matters, Judge Gallo approved an hourly rate of $500 for plaintiff’s counsel.
Continue reading... - Unsettled Law Regarding Third-Parties Responses to Litigation Preservation Demands
Apr 30, 2018 | Posted by Elizabeth Chiba Rein | Topics: Product Liability, Business Litigation, Class Actions
The 2015 Amendments to the Federal Rules of Civil Procedure, attempted to limit the potential for over preservation evidence by mandating that discovery be relevant to any party’s claim or defense and proportional to the needs of the case. However, the 2015 Amendments have not stopped attorneys from continuing to serve expansive preservation demands, which often include demands on third parties.
Continue reading... - California Supreme Court Ruling on Generic Drug Extends Lifespan of Predecessor Brand-Name Manufacturer Liability
Feb 28, 2018 | Topics: Product Liability, Pharmaceutical / Medical Devices
Plaintiffs who were in utero when their mother was prescribed terbutaline, a generic version of an asthma drug that is used off-label to prevent premature labor, filed suit against the brand-name manufacturer of said drug, Brethine.
Continue reading... - The U.S. Supreme Court Rejects the Supreme Court of California “Sliding Scale Approach” to Specific Jurisdiction
Sep 29, 2017 | Posted by Kirsten F. Gallacher | Topics: Pharmaceutical / Medical Devices, Class Actions, Product Liability
In its most recent term, the U.S. Supreme Court issued numerous decisions reiterating the limits of federal courts jurisdiction, which should in theory curb forum shopping. Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773, 1775 (2017) delineates the contours of specific jurisdiction in the context of mass tort litigation against out-of-state companies.
Continue reading... - The McGill Decision’s Impact On Arbitration Cases Is Proving To Be Limited
Jul 31, 2017 | Topics: Automotive, Class Actions, Business Litigation, Product Liability
In April of this year, we reported on the California Supreme Court’s finding in McGill v. Citibank, N.A. that an arbitration agreement was unenforceable because the agreement effectively denied the plaintiff the right to seek public injunctive relief (i.e. relief that is primarily designed to stop unlawful acts that threaten future injury to the general public).
Continue reading... - Vehicle Rollover Case Requires Risk Benefit Test, Not Consumer Expectation Test*
May 31, 2017 | Posted by Elizabeth Chiba Rein | Topics: Automotive, Product Liability
The Ninth Circuit Court of Appeal in Edwards v. Ford Motor Co., No. 15-55577, 2017 U.S. App. LEXIS 4905, at *2 (9th Cir., Mar. 20, 2017), affirmed the judgment in favor of Ford Motor Company (“Ford”) on successor-in-interest to decedent Fiailoa Edwards’ (“Edwards”) claim that Edwards’ 2002 Ford Explorer Sport Trac (“Vehicle”) was defective.
Continue reading... - California Supreme Court Holds Arbitration Clause Unenforceable, But the Decision’s Impact On Future Cases May Be Limited
Apr 27, 2017 | Posted by Robert K. Dixon | Topics: Product Liability, Class Actions, Business Litigation
Recently, the California Supreme Court found in McGill v. Citibank, N.A. that an arbitration agreement was unenforceable because the agreement effectively denied the plaintiff the right to seek public injunctive relief (i.e. relief that is primarily designed to stop unlawful acts that threaten future injury to the general public). However, the ripple effect of McGill may ultimately be limited, given that Citibank conceded that its arbitration agreement barred the plaintiff from seeking public injunctive relief, which was likely fatal to its position in McGill.
Continue reading... - Court Interpreting Settlement Agreement Holds Defendant Was Not An “Affiliate” Based Simply On A Contractual Relationship
Apr 27, 2017 | Posted by Mark A. Rein | Topics: Business Litigation, Automotive, Product Liability
The vast majority of cases settle. And the vast majority of those settlements include a release that spans to almost everyone from “officers” to “agents” to “representatives” to “affiliates” (if Mel Brooks drafted one, it may even include his father’s brother’s nephew’s cousin’s former roommate). But a recent Court of Appeal opinion found the term “affiliate” may not be as broad as defendants think, holding that a simple contractual relationship is often not going to be enough.
Continue reading... - Split of Authority on Admissibility of Industry Custom Evidence in Design Defect Cases to Soon Be Resolved
Apr 27, 2017 | Posted by Mark A. Rein | Topics: Product Liability, Automotive
There is currently a split of authority among the California Courts of Appeal concerning the extent to which evidence of industry custom is admissible in strict product liability actions to prove or disprove the existence of a design defect.
Continue reading... - Federal Judge Grants Class Certification, But Denies Certifications as to Plaintiff’s Strict Liability Claims
Jan 25, 2016 | Topics: Class Actions, Product Liability
A United States District Judge for the Southern District of California certified a nationwide class and a subclass of California consumers in November 2015.
Continue reading... - Objections Not Waived Due To Service Of An Inadequate Or Untimely Privilege Log, Or Even A Failure To Serve One All Together
Jan 25, 2016 | Posted by Mark A. Rein | Topics: Business Litigation, Product Liability
The California Court of Appeal recently held that timely, albeit boilerplate, objections based on the attorney-client privilege and work product doctrine are adequate to preserve those objections, and a trial court lacks authority to order those objections waived based on a responding party’s failure to serve an adequate privilege log, a timely privilege log, or any privilege log at all.
Continue reading... - Jury Finds In Favor of Homeopathic Manufacturer In Multimillion Dollar False Advertising Class Action
Oct 16, 2015 | Posted by Robert K. Dixon | Topic: Product Liability
Last month a California federal jury found that Hyland’s Inc., a homeopathic manufacturer, did not misrepresent the effects of their homeopathic products. The plaintiffs’ 255 million dollar class action boiled down to an indictment on the science of homeopathy. Stated differently, the plaintiffs argued that Hyland’s homeopathic products did not provide any medical benefits.
Continue reading... - Dealer Turns Lemon Law Claims Into Lemonade
Sep 9, 2015 | Posted by Morgan P. Suder | Topics: Product Liability, Warranty
The Court of Appeal of California, Third Appellate District, held the alleged existence of a manufacturer’s warranty that transferred to the buyers of a used vehicle did not support the buyer’s lemon law claim against the dealership that sold them the used vehicle “as is” and without warranty.
Continue reading... - Class Action Lawsuit against Apple over Allegedly Faulty MacBooks Is Dismissed
Mar 17, 2015 | Posted by James P. Leonard | Topics: Class Actions, Product Liability
After landing in U.S. District Court in the Northern District of California, Apple moved to dismiss the case in part because Plaintiffs were unable to provide specific support for any of their claims.
Continue reading... - In California, Plaintiffs’ Bar Again Pushes to Limit Use of Demurrers
Mar 17, 2015 | Topics: Automotive, Business Litigation, Class Actions, Product Liability, Warranty
We have all seen our share of complaints that leave you wondering “so what?” That is, even assuming all of the alleged facts are true, there is no cognizable legal cause of action that can be asserted.
Continue reading... - The Court Of Appeals Provides Clarity To The Issue Of Whether A Denial To A Request For Admission May Be Used As Evidence At Trial—Not Ordinarily.
Mar 17, 2015 | Topics: Automotive, Product Liability
The Court of Appeal, First Appellate District, recently held in Gonsalves v. Li (Cal. App. 1st Dist. 2015) 232 Cal.App.4th 1406, that although the Code of Civil Procedure allows a party to submit deposition testimony and responses to interrogatories as evidence at trial, it does not expressly provide for the introduction of denials of requests for admission.
Continue reading... - It’s alive, IT'S ALIVE!—California Resurrects Sanctions for Frivolous Litigation
Dec 23, 2014 | Posted by Robert K. Dixon | Topics: Business Litigation, Class Actions, Product Liability
California has resurrected the trial court’s authority to issue sanctions, including attorney’s fees, against a party that engages in “bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.” Cal. Civ. Proc. Code § 128.5(a) (2015). This is a positive development for defense attorneys and their clients, who find themselves dealing with plaintiffs and/or their attorneys that engage in bad-faith tactics or file frivolous lawsuits.
Continue reading... - Application of the Components Parts Doctrine in Hands of California Supreme Court
Aug 27, 2014 | Topic: Product Liability
The California Supreme Court recently granted review of Ramos v. Brenntag Specialties, Inc. (2014) 224 Cal.App.4th 1239, a case involving California’s Components Parts Doctrine. The significance of the Supremes considering Ramos is that its decision will resolve a split of opinion on the doctrine’s application in the Second Appellate District. The facts of Ramos are substantially similar to another Second Appellate District case, Maxton v. Western States Metals (2012) 203 Cal.App.4th 81, yet the Court’s decisions in the two cases are polar opposites. The Ramos court drew a distinction between products used in the manufacturing process versus end products sold to consumers.
Continue reading... - California Supreme Court Mandates Use of Daubert-Like Standards for Experts
Dec 25, 2013 | Topics: Class Actions, Pharmaceutical / Medical Devices, Product Liability
A recent California Supreme Court opinion will not only have a profound impact on the evidentiary landscape for expert testimony, but will also create a significant advantage for corporate defendants in the products liability context. In Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747 (“Sargon”), the Supreme Court unanimously affirmed that state court judges are “gatekeepers” of expert testimony, and that they are required to examine such testimony as to its reliability, methodology, and assistance to the jury.
Continue reading... - California Supreme Court Addresses Disclosure of Recorded Witness Statements and Witness Lists
Jan 1, 2012 | Topics: Product Liability, Class Actions, Pharmaceutical / Medical Devices, Warranty, Business Litigation
In Coito v. Superior Court of Stanislaus County (2012) 54 Cal.4th 480, the California Supreme Court addressed the level of protection for independent witness interviews conducted by attorneys and/or investigators, and information concerning the identity of witnesses from whom counsel or counsel’s investigator has obtained statements (usually sought through form interrogatory 12.3). The Fifth District Court of Appeal in California previously held that there was no absolute or qualified work product protection for this information. The California Supreme Court disagreed, ruling that with regard to the protections surrounding the witness interviews, "we hold that a witness statement obtained through an attorney-directed interview is entitled as a matter of law to at least qualified work product protection. A party seeking disclosure has the burden of establishing that denial of disclosure will unfairly prejudice the party in preparing its claim or defense or will result in an injustice.” Id. at p. 499.
Continue reading... - Discovery Abuses and Attorney Sanctions – Authority all Advocates Should Know
Jan 1, 2012 | Topics: Business Litigation, Class Actions, Pharmaceutical / Medical Devices, Product Liability, Warranty
In May 2010, U.S. District Judge Jeffrey White ordered San Francisco solo practitioner Gregory Haynes to pay over $360,000 in sanctions for litigation misconduct. Haynes appealed the decision after arguing, to no avail, that he could not afford to pay.
Continue reading... - Governor Brown Signs Legislation Regarding Depositions, Jury Fees
Jan 1, 2012 | Topics: Warranty, Class Actions, Pharmaceutical / Medical Devices, Product Liability, Business Litigation
On September 17, 2012, Governor Brown signed Assembly Bill (AB) 1875. The new law, which goes into effect on January 1, 2013, imposes a seven-hour time limit on most depositions in state court and brings California civil procedure in line with the federal rules.
Continue reading... - In Victory for Plaintiffs, California Supreme Court Alters Rule on Joint and Several Liability
Jan 1, 2012 | Topics: Business Litigation, Class Actions, Pharmaceutical / Medical Devices, Product Liability, Warranty
In a setback for the defense bar, the California Supreme Court abrogated the common law "release rule," which held that a plaintiff who settled with one joint tortfeasor released all the others from liability.
Continue reading... - California Supreme Court Grants Review of Collateral Source Rule Affecting Medical Damages in Tort Cases
Jan 1, 2010 | Topics: Business Litigation, Class Actions, Pharmaceutical / Medical Devices, Product Liability
Briefs are currently being filed in the California Supreme Court to seek a final opinion on whether full charges for medical expenses should be payable to tort plaintiffs as damages even where those expenses have been partially paid by an insurer or written off by a provider.
Continue reading... - Component Parts Doctrine Defense Continues to Solidify
Jan 1, 2010 | Topics: Pharmaceutical / Medical Devices, Product Liability
Recent California appellate court decisions have affirmed that component parts manufacturers cannot be successfully sued in this state for strict products liability simply because a finished product incorporates their component
Continue reading... - Heightened Pleading Standard Being Applied
Jan 1, 2010 | Topics: Class Actions, Pharmaceutical / Medical Devices, Product Liability
Trial courts throughout California are applying the heightened factual pleading standards of Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) to dismiss conclusory, nonspecific tort allegations by plaintiffs:
Continue reading... - In Second Suit Plaintiff Allowed to Present Expert Evidence of Claim that had Been Abandoned
Jan 1, 2009 | Topic: Product Liability
In Gordon v. Nissan Motor Co., Ltd, 170 Cal. App.4th 1103, decided January 29, 2009, the California Second District Court of Appeal reversed a judgment and remanded a case for a new trial.
Continue reading... - No Duty to Warn of Defects in Another Manufacturer’s Product
Jan 1, 2009 | Topic: Product Liability
In Taylor v. Elliott Turbomachinery Co. Inc., 2009 Cal.App. LEXIS 214, decided on February 25, 2009, the California First District Court of Appeal held that component manufacturers and suppliers were properly found not liable for failing to warn of dangers inherent in asbestos-containing products supplied by other manufacturers because they were not part of the chain of distribution of the injury-causing products, and California law recognized no duty to warn of defects in another manufacturer's products.
Continue reading... - Preemption Does Not Bar State Claim Over Fuel Economy Estimates
Jan 1, 2009 | Topics: Product Liability, Warranty
In Paduano v. American Honda Motor Co. Inc., 169 Cal.App.4th 1453, a hybrid car buyer sued the manufacturer for breach of state and federal warranty statutes and alleged misrepresentations under state law, arising from the manufacturer’s statements about the car’s fuel economy.
Continue reading... - The New Wave of Product Claims Involving Overseas Production Practices
Jan 1, 2009 | Topic: Product Liability
The news has been full of product claims based upon overseas manufacturing or production processes, such as those involving contaminated pet food and lead painted toys. These cases have raised some interesting issues:
Continue reading... - Manufacturer Entitled to Summary Judgment in Motorcycle Warranty Case
Jan 1, 2008 | Topic: Product Liability
In Dominguez v. American Suzuki Motor Corporation, No. G038373 (Feb. 15, 2008), the Fourth District Court of Appeal reversed a trial court’s denial of summary judgment on behalf of the vehicle manufacturer in an action brought by a consumer under the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq.).
Continue reading... - Manufacturer Entitled to Summary Judgment Where Plaintiffs Cannot Meet Burden to Show Defendant Manufactured or Distributed Product
Jan 1, 2008 | Topics: Pharmaceutical / Medical Devices, Product Liability
In DiCola v. White Brothers Performance Products, Inc., 158 Cal.App.4th 666 (Jan. 5, 2008), a California Court of Appeal affirmed the trial court’s grant of summary judgment in favor of a distributor and manufacturer in a wrongful death and products liability action brought by the surviving family members of a motorcycle accident victim.
Continue reading... - NHTSA Agrees to Delay Implementation of Event Data Recorder Regulations
Jan 1, 2008 | Topic: Product Liability
The National Highway Traffic Safety Administration announced it will postpone until September 1, 2012 requirements for manufacturers to comply with its final rules regarding event data recorders (EDRs)
Continue reading... - Statute of Limitation Bars Smoker’s Economic Injury Claims
Jan 1, 2007 | Topic: Product Liability
In Grisham v. Philip Morris U.S.A., Inc., decided February 15, 2007, the California Supreme Court:
Continue reading... - U.S. Supreme Court Rejects Punitive Damages Award but Leaves Open Question of Whether Award was Unconstitutionally “Grossly Excessive”
Jan 1, 2007 | Topics: Business Litigation, Class Actions, Pharmaceutical / Medical Devices, Product Liability, Warranty
In Phillip Morris USA v. Williams, No. 05-1256 (U.S. Feb. 20, 2007), the United States Supreme Court vacated a $79.5 million punitive damage award assessed against Phillip Morris and held that the U.S. Constitution's Due Process Clause does not permit a jury to base a punitive damages award upon its desire to punish the cigarette manufacturer for harming persons who were not parties to the action.
Continue reading... - Appellate Court Applies Proposition 64 to Limit Class Certification in False Advertising Claim
Jan 1, 2006 | Topics: Class Actions, Business Litigation, Product Liability
The Second District Court of Appeal recently granted Pfizer Inc.’s request for a writ of mandate to overturn a trial court order certifying a class action that had claimed the company marketed its mouthwash in a misleading manner by indicating it could replace the use of dental floss in reducing plaque and gingivitis.
Continue reading... - California Supreme Court Rules Proposition 64 Applies to Pending Cases; Leaves Open the Potential to Substitute Plaintiff to Meet Standing Requirements
Jan 1, 2006 | Topic: Product Liability
In a decision touted as “curbing abuses of the state’s consumer protection laws,” the California Supreme Court has made it clear that Proposition 64 – the November 2004 ballot initiative that amended California’s unfair competition and false advertising laws, Bus. & Prof. Code §§ 17200 and 17500 et seq. to limit standing to sue under those statutes
Continue reading... - Court Reduces Damage Award Found to be Product of “Passion or Prejudice”
Jan 1, 2006 | Topic: Product Liability
The Fourth District Court of Appeal has partially reversed a judgment awarding compensatory and punitive damages that it found violated the state law ban on awards that are the product of “passion or prejudice.”
Continue reading... - Federal Discovery Rules Impact Electronic Discovery
Jan 1, 2006 | Topics: Business Litigation, Class Actions, Pharmaceutical / Medical Devices, Product Liability, Warranty
Amendments to Federal Rule of Civil Procedure 26, expected to become effective December 1, 2006,
Continue reading... - U.S. Supreme Court to Revisit Punitive Damages Issue
Jan 1, 2006 | Topics: Business Litigation, Class Actions, Pharmaceutical / Medical Devices, Product Liability, Warranty
The U.S. Supreme Court has added Phillip Morris USA v. Mayola Williams to its docket for the Fall, agreeing to review a $79.5 million verdict against the tobacco company for the death of an Oregon smoker.
Continue reading...