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Well, not really.  But what else were we going to call a post about class action litigation over whether honey can properly be called honey?  That’s right, since last September there have been five decisions rendered in five separate class actions over whether labeling honey as honey is fraudulent, misleading, and misbranded.  Brod v. Sioux Honey Ass’n Cooperative, 2012 U.S. Dist LEXIS 129391 (N.D. Cal. Sept. 11, 2012); Ross v. Sioux Honey Ass’n Cooperative, 2013 U.S. Dist. LEXIS 6181 (N.D. Cal. Jan. 14, 2013); Overton v. CVS Caremark Corp., 2012 U.S. Dist. LEXIS 185697 (C.D. Cal. Dec. 11, 2012); Regan v. Sioux Honey Ass’n Cooperative, 2013 U.S. Dist. LEXIS 13166 (E.D. Wis. Jan. 31, 2013); and Guerrero v. Target Corp., 2012 U.S. Dist. LEXIS 125055 (S.D. Fla. Sept. 4, 2012).  And, we believe there are other class actions with the same allegations pending (we know others have been filed and that MDL status was denied).

But before these class actions, back in 2007, there was the ultimate honey lawsuit — Bees v. Humans.  From the mind of Jerry Seinfeld we got The Bee Movie.  In it, two bees voiced by Seinfeld and Matthew Broderick sue the humans for stealing their honey and profiting from it illegally.  Frankly, we think that lawsuit has more merit than these real ones.  At least the bees suffered a real injury – they did all the work, people got all the benefit.  There are some pretty funny courtroom scenes in the movie.  John Goodman plays the over-the-top dramatic lawyer defending the humans.  The bees berate singer Sting for stealing his moniker from the bee community and cross-examine Ray Liotta about his Ray Liotta Private Select Honey.  If Ray Liotta really did market honey, you can bet today’s honey plaintiffs would be checking his product for pollen (Ray Liotta scene is also pretty funny, but couldn’t find any clips).

That’s what these class actions are all about – whether honey can still be called honey if the pollen has been removed.  Some plaintiffs seem to contend that pollen has certain health benefits and that had they been aware that the honey they purchased didn’t contain pollen, they wouldn’t have bought it.  Putting aside the seeming absurdity of the lawsuits, these plaintiffs are bringing mislabeling claims involving the FDA and FDCA, and since we are talking about food, the Nutrition Labeling and Education Act (“NLEA”).  So, at the heart, these are preemption cases and preemption cases get our attention every time.  The fact that five decisions came down so relatively close together also piqued our curiosity and so we decided to take a closer look. We are happy to report, that just like dentists who recommend Trident gum, 4 out of 5 courts got it right.Continue Reading A Honey of A Litigation

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.Continue Reading Cheeseheads Enact Sweeping Tort Reform

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We’re talking about the Restatement (Third) of Torts, Products Liability §2, to be precise.  Being in Pennsylvania, for quite some time we’ve had more than a passing interest in this section  of the Third Restatement and its essentially negligence (“reasonableness”)-based theory of product liability.   For decades, Pennsylvania followed a “ne’er the twain shall meet” rule that strictly separated strict liability from “negligence concepts.”  That approach was exemplified by Azzarello v. Black Brothers Co., 391 A.2d 1020 (Pa. 1978).  But in Phillips v. Cricket Lighters, 841 A.2d 1000 (Pa. 2003), three justices of the Pennsylvania Supreme Court opined that a quarter century had proven wanting the “strict liability” of the Azzarello sort, and that Pennsylvania law should move to the negligence-based standard of §2. 841 A.2d at 1015-16.  Full disclosure – Bexis filed a brief for PLAC in Phillips on the Restatement Third issue.
While three justices aren’t a majority of Pennsylvania’s seven-member Supreme Court, in Phillips they outnumbered the court’s Azzarello supporters 3-2 (there was a vacancy and an obscure concurrence in the result).  In almost seven intervening years, the court has failed to address the issue squarely, although not for want of trying.  The court thought it was going to decide the issue in Straub v. Cherne Industries, 880 A.2d 561 (Pa. 2005), but instead found there had been a waiver.  The court tried again in Bugosh v. I.U. North America, Inc., 971 A.2d 1228 (Pa. 2009), but dismissed the appeal as improvidently granted after it turned out that the defendant was an intermediate seller, not a true manufacturer (that makes a difference in the Third Restatement, but it’s not important here).
Finally, the Third Circuit got fed up with the issue remaining undecided, and after trying unsuccessfully to get the Pennsylvania Supreme Court to accept a certified question, took the metaphorical bull by the horns and predicted that the court would eventually adopt the Third Restatement in Berrier v. Simplicity Manufacturing, 563 F.3d 38, 57 (3d Cir. 2009).  As we discussed in an earlier post, that’s led to still more squabbling among the federal district courts.
Full disclosure – Bexis filed amicus briefs for PLAC in all of those other cases on the Third Restatement issue.
So the Third Restatement question has vexed Pennsylvania product liability law for quite a few years.  Well, not too long ago we (well, Bexis, obviously) was expressing his frustration with this indeterminate state of affairs with regular blog reader whom we ‘re not sure wants to be publicly identified, so we won’t, and said reader mentioned that his/her home state of Wisconsin was in somewhat of the same boat.Continue Reading What’s Up With The Third Restatement?

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We’ve posted quite a bit on the substantive due process aspects of punitive damages. Other than that, we frankly hadn’t thought about substantive due process being applicable to other aspects of product liability litigation.
Well, it’s time to start thinking.
A decision has just come down that accepts the argument that the expansion of state…

Drug & Device Resources

Bexis’ Book

FDA-regulated products now account for an estimated one-fifth of overall economic activity in the U.S. They have also been the focus of a litigation explosion. This timely guide covers all aspects of litigation involving drugs, medical devices, vaccines and other FDA-regulated prescription products.
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