Today’s guest post is by Sherry Knutson and Brenda Sweet of Tucker Ellis, and concerns the recently passed legislative repeal of a Michigan statute that, for several decades had effectively immunized prescription drugs from ordinary product liability actions under Michigan law. For background, here’s a prior blogpost that focused on the now-repealed statute. As
Legislation
Bexis Files Public Comment on Proposed MDL/Federal Rule 16.1
Here’s a short one before the holiday (the one we have off, anyway). Most of our readers probably already know about the pending proposal for an MDL-specific rule of civil procedure, enumerated as Fed. R. Civ. P. 16.1. We’ve adverted to proposed Rule 16.1 a couple of times, but never done a deep dive. …
Potential Mallory Jurisdictional Silver Lining
Let us be clear at the outset. We were shocked and appalled by the 5-4 result in Mallory v. Norfolk Southern Railway Co., 143 S. Ct. 2028 (2023), holding that phony “consent” to general jurisdiction does not offend constitutional Due Process when a state statutorily declares something less than “at home” status − corporate…
Lawyers for Civil Justice Advocates Privacy-Protective Changes to the Federal Rules of Civil Procedure
In addition to its expected slam of the judiciary’s Federal Rules Committee largely toothless proposal for an MDL-specific rule of civil procedure, the LCJ recently did something both innovative and unexpected (at least to us) – on September 19, it proposed amending multiple federal civil rules to address privacy issues. See LCJ, “FRCP…
Montana Enacts Product Liability Tort Reform (And Bans TikTok)
Montana became the first state to ban TikTok this month. You no doubt have seen the press and have read the spirited discussion condemning foreign spies on the one hand and championing First Amendment rights on the other. Litigation has already commenced. But, while all that was developing, you may have overlooked that Montana…
Not An Early April Fools’ Day Joke: State Still Pushes Its Dumb Ivermectin Law
About two months ago, we marveled at the notion that challenges to facially neutral state and local government vaccine requirements were still percolating through the legal system. We probably should not have been surprised by the persistence of frivolous litigation. After all, our day job entails defending litigations that can last years longer than they…
Don’t Wait – The Rule 702 Amendments Can Be Used Now
We’ve chronicled the path of the 2023 amendments to Fed. R. Evid. 702 pretty much from the beginning. As we’ve discussed, those amendments reiterate what had always been (at least since 2000) the Rule’s requirements for analyzing the admissibility of expert witness testimony. But courts had been ignoring critical elements – such as the burden of proof – that had been in comments rather than the black letter of Rule 702 itself. So, as of December 2023, Rule 702 will provide that the proponent of expert testimony must meet all of the Rule’s substantive standards for admissibility by a preponderance of the evidence, and in particular that an adequate basis for such testimony is a prerequisite to admissibility. Continue Reading Don’t Wait – The Rule 702 Amendments Can Be Used Now
Software as a Product – The European Union Goes There
We’ve written a number of posts on whether, in various jurisdictions across the United States, software and other forms of electronic/magnetic code can be considered to be “products” for purposes of product liability – usually strict liability. As befits the decentralized product liability litigation landscape in the United States, there is considerable uncertainty, but most decisions, as well as both the Second and Third Restatements of Torts, have determined that incorporeal items composed of electronic bytes are not “products.”Continue Reading Software as a Product – The European Union Goes There
Keeping Alert for (In)Valid Legislation
An amendment to the FDCA, called the “Verifying Accurate Leading-edge IVCT Development Act” – or VALID Act (cute) for short – has been wending its way through Congress. It appears intended to codify FDA regulatory authority over in vitro chemical tests, and is not the kind of thing we would ordinarily concern ourselves with on…
Guest Post – CMS Health Care Staff Vaccination Rule Enforceable as Challenges Continue
Today’s somewhat unusual guest post is by Reed Smith‘s Matt Loughran. It concern’s the Supreme Court’s 6-3 decision to permit the government to continue enforcement of its requirement that healthcare workers (at least those in facilities that accept Medicare/Medicaid, which is most of them) be vaccinated to avoid infecting themselves and their patients…