Articles by :


Considerations from the ABA’s Best Practices for Litigation Funding

Share

The exact dollar amount that third-party investors infuse in U.S. lawsuits every year is unknown, but conservative estimates begin around $2.3 billion, with agreement that the industry has room to grow. With the ongoing pandemic stretching litigation timelines and straining budgets, the litigation funding industry remains highly active. Despite the importance of litigation funding to all parties involved (lawyers, plaintiffs, and defendants), regulation varies by state, and litigation funders are largely left to self-regulate.

Continue reading “Considerations from the ABA’s Best Practices for Litigation Funding”

Double Whammy: Fifth Circuit Affirms Dismissal of Suit Against Generic and Brand-Name Drug Manufacturers

Share

Some product liability suits are dead on arrival. At least, that is the position the Fifth Circuit took late last week in affirming the dismissal of a pro se plaintiff’s suit against a collection of generic and brand-name drug manufacturers.

The case in question is Johnson v. Novartis Pharmaceuticals Corporation, et al., and concerns Mr. Johnson’s purported struggles with Peyronie’s Disease (PD), a connective tissue disorder that causes painful, bent erections, after he had ingested generic forms of the prescription drugs Minocin (an antibiotic) and Tegretol (an anticonvulsant).

Continue reading “Double Whammy: Fifth Circuit Affirms Dismissal of Suit Against Generic and Brand-Name Drug Manufacturers”

Failure to Fully Disclose Expert Opinions Results in Summary Judgment

Share

Federal Rule of Civil Procedure 26(a)(2) requires retained expert witnesses to provide an expert report which gives “a complete statement of all opinions the witness will express and the basis and reasons for them.”  Fed. R. Civ. P. 26(a)(2)(B)(i).  If a party fails to disclose information required under Rule 26(a)(2), “the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”  Fed. R. Civ. P. 37(c)(1).  As a plaintiff in the Western District of Washington recently learned, failure to adhere to Rule 26 can be fatal to a case.

Continue reading “Failure to Fully Disclose Expert Opinions Results in Summary Judgment”

“Vanilla” Milk Claims Continue to Sour as Southern District of New York Dismisses Putative Class Action Complaint

Share

As we discussed in a previous post, the Northern District of California recently dismissed a plaintiff’s claim that the term “vanilla” was misleading on the label of a soymilk product.  The Southern District of New York has now similarly dismissed a putative class action complaint alleging that a “vanilla” almond milk product was labeled in a way that misled customers.

In Wynn v. Topco Associates, LLC, No. 19-cv-11104, Plaintiffs alleged that Defendant’s use of the word “vanilla” on the label of its almond milk product – “Vanilla Almost Milk” – falsely communicated to consumers that the beverage’s flavor was derived entirely from real vanilla, when in fact the product includes non-vanilla flavorings.  Plaintiffs claimed, among other things, that this violated the New York General Business Law (NYGBL).

Continue reading ““Vanilla” Milk Claims Continue to Sour as Southern District of New York Dismisses Putative Class Action Complaint”

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

Share

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.

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

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

Share

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.

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