U.S. Fifth Circuit Holds Express Warranty Claim Against the Manufacturer of Surgically Implanted Neurostimulator Not Preempted

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The preemption question “comes down to whether the warranty on Medtronic’s website was consistent with assessments made during the approval process, in which case this lawsuit would be preempted as a challenge to the FDA’s determination of safety and effectiveness, or whether the warranty goes beyond what the FDA considered. “What did the warranty promise? “Medtronic argues that it equates …

U.S. Fifth Circuit Affirms Dismissal of Claim for Disability Benefits where Loss of Eye from Fungal Infection not “Accident” under Plan

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The plaintiff traveled to West Texas twice in connection with his job, and developed a fungal infection in his right eye that was diagnosed as coccidioidomycosis. Medical providers determined that contact with a West Texas fungus caused the infection, which led to progressive loss of vision, and the ultimate removal of that eye. Disability benefits were denied based on the …

U.S. Fifth Circuit Affirms Judgment of Dismissal under LPLA, Rejecting Res Ipsa and Claims of “Misconduct” by Defense

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The plaintiff, Mr. Lyles, underwent anterior corpectomy and discectomy surgery, in which a “Verte-Stack” vertebral body replacement device was implanted in Lyles’s cervical spine, along with Progenix, a putty-like bone graft material that was mixed with bone dust.  In addition, an Atlantis Translations Anterior Cervical Plate System was used to stabilize the Verte-Stack and to promote fusion. Some time after …

Southern District of New York Certifies (b)(1) Class Claims under ERISA for Mismanagement of 401(k) Plan

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“Defendants object to class certification under Rule 23(b)(1) as improper in the wake of the Supreme Court’s decisions in LaRue and Wal-Mart. Although courts are split over whether Rule 23(b)(1)(B) remains an appropriate class vehicle for fiduciary-breach claims under ERISA, a majority have held that it is…. “Defendants argue that, because the Supreme Court in LaRue held that §1132(a)(2) allows …

District Court in Colorado Orders GM to Produce FEM Data in Roof Crush Case

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Pertile, a front seat passenger, was badly injured in a rollover. GM’s expert, Ms. Lu, issued a report which states that the roof structure was evaluated in tests that subjected the design to various collision speeds, impact directions and loading directions, and opined, in part based upon her “review of the technical reports and engineering documents” that the 2011 Chevrolet …

Federal District Court in New York Applies Adverse Inference Where Defendant’s (Non-Party) Consultant Backs Up Cell Photos, But Not Text Messages, After Action Commenced

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In a dispute between the heirs and survivors of the band Lynyrd Skynard against a production company seeking to make an unauthorized documentary with the aid of a former bandmember, a District Court Judge in the Southern District of New York applied an adverse inference to the text messages of the scriptwriter, who purchased a new phone after the commencement …

U.S. Eleventh Circuit Rejects Challenge to Adequacy Based on Pursuit of Only Statutory Damages in FDCPA Case

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In FDCPA case, the district court held that the Named Plaintiff was an inadequate class representative because he sought only statutory damages, while other members of the class might have suffered actual damages. The U.S. Eleventh Circuit Court of Appeal reversed: “As an initial matter, the district court’s stated reason for finding Dickens inadequate — that he sought only statutory …

U.S. Fifth Circuit Affirms Class of Inmates for Injunctive Relief over Temperatures in Holding Areas

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Defendants’ overarching objection to the district court’s certification focuses on the common contention that “excessive heat constitutes a condition of confinement that poses a substantial risk of serious harm to the health of inmates.”  Defendants do not contest that putative class members are all exposed to essentially the same temperatures. Defendants also do not contest that Pack Unit temperatures, particularly …

Judge Morgan, Sitting in the Eastern District of Louisiana, Applies Strict Products Liability under the General Maritime Law, rather than the LPLA, in a LHWCA Third-Party Case

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A marine cargo surveyor fell into the Mississippi River as he was attempting to board a vessel, wearing an inflatable life vest manufactured by Absolute Outdoor, Inc.  The plaintiff filed an action in rem against the vessel, pleading negligence, as well as a strict products liability claim against Absolute, under the GML.  In its answer, Absolute included a jury demand and …

N.Y. State Bar Prohibits Marketing Fees to Avvo

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A lawyer who wished to participate in Avvo Legal Services sought an Ethics Opinion from the New York State Bar Association.  Legal services would be offered through Avvo’s website, based on marketing fees that Avvo charges.  “Because” the Committee said, “Avvo’s method of operation is crucial to our response, we will devote several paragraphs to describing the Avvo Legal Services …