A (relatively) long time ago in a state not so far away, the Michigan Legislature enacted the Michigan Product Liability Act.  It contained a provision providing the manufacturers of FDA-approved drugs with immunity from product liability absent the application of two narrow exceptions.  A challenge to the constitutionality of the provision soon followed and the

Here’s another guest post, this time by Vani Singhal and Jason McVicker of McAfee Taft.  It’s about tort reform, Sooner style.  As always, our guest correspondents get all the credit (or blame, as the case may be).

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Oklahoma has enacted a new law relating to evidence in product liability cases.  It is effective on November 1, 2014 (for new cases, its application to existing cases will probably be litigated).  The short version is as follows: In a formulation/labeling/design case, if a manufacturer or seller can prove compliance with federal safety standards, it triggers a rebuttable presumption the manufacturer or seller is not liable for injury arising out of the formulation/labeling/design.  The presumption can be rebutted only if the plaintiff demonstrates the federal regulations were inadequate or the manufacturer withheld or misrepresented facts relevant to the federal determination.

Alternatively, if a manufacturer or seller can prove “by a preponderance of the evidence” that the product was subject to premarket licensing or approval by the federal government, that it complied with the licensing or approval process, and that it was licensed or approved, it triggers a rebuttable presumption that the manufacturer or seller is not liable for any injury to a claimant arising out of the formulation/labeling/design.  The presumption can be rebutted only if the plaintiff demonstrates the standards were inadequate or that the manufacturer withheld or misrepresented facts relevant to the process if causally related to the plaintiff’s injuries.


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Back in 2009, we posted that a recently enacted Oklahoma tort reform statute included a provision to eliminate most class action litigation under the notorious outlier case Ysbrand v. DaimlerChrysler Corp., 81 P.3d 618 (Okla. 2003), by forbidding nationwide classes to be brought under Oklahoma law.  It seems to have worked.  We haven’t heard of any Ysbrand shenanigans since then.

Well, the Oklahoma Supreme Court was plainly out of control in Ysbrand, and unfortunately it remains out of control to this day.  Recently, in Douglas v. Cox Retirement Properties, Inc., ___ P.3d ___, 2013 WL 2407169 (Okla. June 4, 2013), the same court invalidated the entire tort reform statute, under the obscure (and rightly so) “single subject” rule for legislation.  Funny how we never seem to see that invoked except when tort reform is at issue….

Douglas thus resurrects (at least potentially) the anything goes class action practice that existed under Ysbrand – as well as the raft of other litigation abuses that the Oklahoma legislature thought it had addressed in 2009.  That’s bad news.

The silver lining is that, since practically the day Douglas was decided, legislators in Oklahoma, who passed the original bill by a substantial margins, have been quoted as saying that they would break up the original legislation into separate bills.  Moreover, with Douglas reviving tort reform as an issue, additional “measures − to limit liability for gun manufacturers, adopt federal guidelines for expert witnesses and protect restaurants [from] obesity-related lawsuits” may also be on the agenda.

Umm … guys….


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We confess, between the unrest in Egypt and the unremitting hype leading up to the Super Bowl, we’ve let Wisconsin’s new tort reform law sit for a few days. But it is a potentially significant development – certainly far more significant than what Packers QB Aaron Rodgers had for breakfast this week (although Packer fans may disagree) – and the plaintiffs’ bar is unhappy with the result.

The Wisconsin legislature packed a lot into this bill, but here are the highlights that we found particularly relevant in the drug/device context:

(1) Punitive damages – capped at the greater of 2x compensatories or $200,000. (There’s a specific exception to the cap that won’t apply in drug and device cases – it involves a defendant whose tortious actions included the operation of a vehicle under the influence of an intoxicant).

(2) Product liability cases – The legislature enacted a number of rules specific to products cases:

Product identification – in most cases against manufacturers, plaintiffs must prove that the defendant actually manufactured the injury-causing product. This is intended to limit the effect of Thomas v. Mallett, 701 N.W. 2d 523 (Wis. 2005) (a case Bexis unsuccessfully briefed for PLAC), where the court permitted a lead-paint case to proceed against seven manufacturers even though the plaintiff could not identify the manufacturer of the paint that caused the alleged harm.


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It’s already been reported elsewhere that significant tort reform was recently passed in Oklahoma, along with some of the details. But when someone mentions Oklahoma to us in the context of litigation – we free associate “Ysbrand,” as in Ysbrand v. DaimlerChrysler Corp., 81 P.3d 618 (Okla. 2003), which is the leading (and nearly

One of the ways we feed this blog is doing what comes naturally to us lawyers – reading recent cases – and hoping that something inspires us. Sometimes that works. Sometimes that doesn’t. This week it worked too well. We’ve seen several decisions that bring back memories of stuff we’ve had to deal with over

On Thursday, we noted that the Ohio Supreme Court had upheld two tort reform provisions in Arbino v. Johnson & Johnson, 2007-Ohio-6948. We also said that we’d be back after we had a chance to read the decision.

We’re back.

You know what’s odd? Arbino is plainly an important case: It’s the most recent

In Arbino v. Johnson & Johnson, 2007-Ohio-6948, the Ohio Supreme Court today upheld constitutional challenges to Ohio Revised Code Secs. 2315.18 and 2315.21, tort reform statutes capping noneconomic damages and punitive damages in tort actions.

Here’s a link to the opinion.

We may post more, but we make no promises. It is, after all,