While Reversing Jury Verdict Due to Attorney Conduct, U.S. Fifth Circuit Affirms Plaintiffs on Personal Jurisdiction, Preemption, and Product Defect in Medical Device Case

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Plaintiffs who received metal-on-metal hip implants, suffered complications, and required revision surgery, received jury verdict of $502 million against the manufacturer and its parent company. The District Court applied Texas’ statutory exemplary-damages cap, which reduced the $360 million punitive award to $9.6 million. On appeal, the U.S. Fifth Circuit held that: (i) metal-on-plastic hip implants were viable alternative design, (ii) …

Supreme Court of Washington Reverses Denial of Class Certification in Wage and Hour Case

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Nurses filed putative class action against hospital for failure to provide rest and meal breaks required under State Law.  The trial court denied certification, but the Washington Supreme Court reversed. “The trial court ruled that the nurses could not satisfy the predominance requirement because of the individual issues regarding nurse type and shift length. But the court failed to explain …

U.S. Fifth Circuit Affirms Verdict Against Unmanned Utility Vehicle Manufacturer, Allowing Evidence of Other Incidents and Affirming Jury Instruction on Alternative Feasible Design

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Plaintiff suffered permanent injuries when an unmanned utility vehicle, the “Workhorse”, ran her over. A key turns on the Workhorse’s electrical system, but it does not start the engine. Rather, there is a microswitch in the accelerator pedal which turns on the engine and propels the vehicle. The Workhorse also has a two-part brake pedal: The lower pedal is the …

ABA Issues Formal Opinion Regarding an Attorney’s Duty to Inform the Client of a Material Error in Representation

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Recognizing that errors occur along a continuum, an error is material if a disinterested lawyer would conclude that it is (a) reasonably likely to harm or prejudice a client; or (b) of such a nature that it would reasonably cause a client to consider terminating the representation even in the absence of harm or prejudice. More fully: “A lawyer’s responsibility …

U.S. Second Circuit Finds that Group Policyholders Have Article III Standing to Pursue Claims for the Purchase of Illegal Policies, Even If Coverage Is Enforceable

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Plaintiff group policyholders brought suit against HealthExtras for marketing “policies” that did not comply with the requirements of the New York Insurance Code. The District Court dismissed the case for lack of standing.  While plaintiffs’ claims were premised on the contention that the policies were illegal, courts, under New York insurance law, enforce such contracts as if they did include …

Superior Court Judge in Arizona Grants Center for Auto Safety’s Motion to Unseal Records from Goodyear G159 Tire Cases

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The Center for Auto Safety (CAS) intervened into a wrongful death suit against Goodyear arising from defects in its G159 tire.  The Court granted CAS’s motion to unseal a large portion of the records that had been previously subject to a protective order, in that case and in several other similar cases. “In the course of the ruling adopting the Protective Order, …

Attorneys Sanctioned by Texas State Court for Collusive Settlement involving Minors Competing for Limited Insurance Coverage

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The victim of a trucking accident was survived by two different sets of children with two different mothers.  Each instituted a separate wrongful death action, which were consolidated, on motion of the defendant, in Webb County.  The defendant’s insurer was willing to settle for policy limits, and initally proposed mediation or arbitration to apportion the insurance proceeds between and among …

Supreme Court of Massachusetts Holds that a Brand Manufacturer Can Be Liable for Failure to Warn Doctors and Patients Injured by Generic Forms of the Drug, where the Conduct is Not Merely Negligent, but Reckless

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“Where failure to warn claims are brought by consumers of a manufacturer’s own product, the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business…. But if consumers of generic drugs were allowed to recover damages for a brand-name manufacturer’s negligent failure to warn, it would be far more difficult …

U.S. Fifth Circuit Strikes Down the Obama Administration’s “Fiduciary Rule”

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The U.S. Chamber and two other business groups filed suit in the Northern District of Texas, challenging the “Fiduciary Rule” – a package of seven different DOL Regulations that broadly re-interpret the term “investment advice fiduciary” and re-define exemptions that relate to fiduciaries from ERISA and the Internal Revenue Code.  On appeal, the U.S. Fifth Circuit struck down the Rule. …

U.S. Fifth Circuit, En Banc, Reverses Pierre, and Holds that Review for Factual Determinations is De Novo Where Plan Does Not Afford Administrator Discretion

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  “When an ERISA plan lawfully delegates discretionary authority to the plan administrator, a court reviewing the denial of a claim is limited to assessing whether the administrator abused that discretion. For plans that do not have valid delegation clauses, the Supreme Court has held that a denial of benefits challenged under §1132(a)(1)(B) is to be reviewed under a de …