Online Retailers Beware: Texas Supreme Court to Consider Whether Amazon Is a “Seller”

The Texas Supreme Court is set to determine whether Amazon can be considered a “seller,” and thus held liable, for a defective product sold through its website, in the case of McMillan v. Amazon.com, Inc., No. 20-20108, 2020 WL 7417454, at *1 (5th Cir. Dec. 18, 2020), certified question accepted (Jan. 8, 2021).

Amazon.com Inc. is the nation’s largest online retailer, selling and shipping millions of products every day. With the COVID-19 pandemic altering shopping habits, Amazon has become even more ubiquitous than ever. While many stores and online retailers struggled in 2020, Amazon’s sales skyrocketed 37% to a record $96.2 billion in the third quarter of 2020. But what happens when a product purchased from Amazon harms a customer? Can Amazon be held liable even if it has no role in designing or manufacturing the product? Courts across the country are grappling with this question, which undoubtedly will impact online retailers like Amazon for years to come.

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Western District of Louisiana Says Plaintiff’s Marine Engineering Expert’s Opinions Don’t Hold Water

It is not often that a federal district court limits an expert witness’s proffered testimony on the ground that the expert is not qualified to offer it, and it is also uncommon for a court to exclude expert testimony on the ground that it would not assist the trier of fact. However, the Western District of Louisiana recently limited a proffered engineering expert’s testimony on both of those grounds.

In Terral River Service, Inc. v. SCF Marine, Inc., No. 3:19-CV-00406, Plaintiff purchased a barge from Defendant and later found it partially submerged due to a fracture in the bow. The parties disputed the timing of the fracture, with Plaintiff alleging that it existed prior to delivery of the barge. Plaintiff offered as an expert witness a metallurgical and mechanical engineer with experience in evaluating barge fractures.

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Preemption Torpedoes State Law Claims against Generics Makers in Zantac MDL

A judge in the United States District Court for the Southern District of Florida presiding over the In Re: Zantac (Ranitidine) Products Liability Litigation multidistrict litigation, MDL No. 2924, has held that state labeling and design defect claims against the makers, re-packagers, retailers, and distributors of generic forms for the popular heartburn medication Zantac were preempted by federal law.  The court subsequently dismissed these claims against 32 such Zantac generics makers and distributors.

The Zantac MDL was created by the United States Judicial Panel on Multidistrict Litigation on February 6, 2020.  The plaintiffs allege that ranitidine, the active ingredient in Zantac and its generic forms, breaks down into N-nitrosodimethylamine (“NDMA”), which is part of a group of compounds that have been shown to increase the risk of cancer. The plaintiffs allege a variety of product liability and related claims against the makers and distributors of Zantac and its generic forms under federal and state laws.

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Cybersecurity Safeguards Implemented by Federal Judiciary for Filing Highly Sensitive Court Documents

The U.S. Federal Judiciary announced new safeguards and procedures to protect sensitive court records in light of a recent apparent cybersecurity breach.

Last month, the Department of Homeland Security issued an emergency directive regarding “a known compromise involving SolarWinds Orion products that are currently being exploited by malicious actors.”  The judiciary was notified of this issue by the Administrative Office of the U.S. Courts, and suspended use of this IT network tool at the national and local levels.  An apparent compromise of the confidentiality of the Federal Judiciary’s CM/ECF system is now being investigated in connection with the breach.

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En Banc Eighth Circuit Reverses Precedent and Holds Forum-Defendant Rule Is a Nonjurisdictional Defect Plaintiffs Can Waive

As the new year loomed, the Eighth Circuit, sitting en banc, overruled its prior cases dealing with a specific application of the forum-defendant exception to removal on the basis of diversity jurisdiction. Under the forum-defendant rule, a defendant who is a citizen of the forum state cannot remove a lawsuit from state court to federal court if the removal is solely on the basis of diversity jurisdiction. Before this decision, the Eighth Circuit stood alone in holding that the forum-defendant rule was jurisdictional and could never be waived. The unanimous en banc court overruled its prior cases and aligned with all other federal circuits to consider the question, concluding that violation of the forum-defendant rule is not a jurisdictional defect and therefore must be raised as a basis for remanding a case back to state court within 30 days after removal or the argument is waived. Among other practical consequences of the decision, plaintiffs who believe a defendant has improperly removed a case in violation of the forum-defendant rule now must raise the violation in 30 days or risk waiving it.

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Florida Supreme Court Ends 2020 With Adoption of the Federal Summary Judgment Standard

The Florida Supreme Court will abandon the state’s previous summary judgment standard in favor of the federal standard — a familiar, achievable standard to dispose of claims that are unsupported by evidence. For pending dispositive motion practice that may be decided during the gap period before the rule amendment takes effect, movants should consider requesting that any decision be made without prejudice to seek summary judgment under the new summary judgment standard once it takes effect.

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