Category: Civil Procedure

Nothing Shocking Here – Eleventh Circuit Affirms Defense Win in Electroconvulsive Therapy Case

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When a case involves electroconvulsive therapy (ECT), one might think it originated out of the Twilight Zone. Despite the misrepresentation of such therapies in popular media, modern ECT serves as a valuable option for patients with certain severe mental health conditions who have tried other therapies without success. Although ECT is far safer today than it was when the stigma attached to it was formed, it still carries risks such as confusion, memory loss, and some physical side effects. One need not enter another dimension to envision why a plaintiff might claim damages arising from those risks. Much like Rod Serling’s anthology, the Eleventh Circuit recently closed the door on one such episode.

In Thelen v. Somatics, LLC, — F.4th —, 2025 WL 2749888 (11th Cir.), the plaintiff suffered from depression and mental health issues so severe that he attempted to take his life numerous times in numerous ways. During a two-year span, he received 95 ECT treatments to address his conditions. He was later diagnosed with a neurocognitive disorder that caused severe memory loss.

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Standing on Shaky Ground: Product Recalls Alone Do Not Constitute an Injury in Fact

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Cynics have long said that no good deed goes unpunished. Such can be the case with voluntary product recalls, which often engender litigation even by plaintiffs who have suffered no real injury and merely see an opportunity for a windfall. As we recently noted, recalls do not equate with product defects. However, plaintiffs — or their attorneys — act as though purchasing a recalled product is in itself a cause of action that justifies a lawsuit. A recent opinion from the Sixth Circuit offers yet another illustration why that reasoning is unsound and highlights how defendants can attack it early in a case. Specifically, because an allegation that the product a plaintiff purchased was recalled does not raise a plausible inference of injury in fact, a plaintiff lacks standing to assert a claim premised on a recall alone.

The named plaintiffs in Ward v. J.M. Smucker Co., No. 24-3387, 2025 WL 2613489 (6th Cir. Sept. 10, 2025), filed a putative class action in Ohio federal court alleging that they purchased peanut butter products from lots that the defendant had voluntarily recalled following a salmonella outbreak that had affected 16 people across 12 states. The plaintiffs did not, however, allege that any sampling or testing had revealed the presence of salmonella in the products they purchased. The defendant moved to dismiss the complaint for lack of Article III standing, arguing that the plaintiffs lacked an injury in fact, and the district court granted the motion.

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Florida Courts of Appeal Scrutinizing Punitive Damages Claims

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It is not uncommon for a product liability plaintiff to base a claim for punitive damages on little more than the same allegations that undergird a strict liability or negligence claim, while adding that the defendant knew that the product was unsafe or that the warnings were inadequate and marketed the product regardless. While that approach has worked at times in the past, recent decisions from Florida’s Third and Fourth District Courts of Appeal remind us that Florida imposes a high bar on punitive damages claims. Specifically, these courts highlighted several key points related to claims of punitive damages in product liability cases: (1) Florida’s statutory requirements for punitive damages are more stringent than some other states (specifically, California) and, therefore, orders from other states awarding punitive damages are unpersuasive; (2) Florida law presumes a product is not defective if it complies with applicable government regulations; (3) the level of negligence required to plead punitive damages in Florida requires conduct equivalent to establishing criminal manslaughter; and (4) the Florida Supreme Court has all but eliminated punitive damage awards in product liability cases. These cases are discussed in further detail below.

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Foundation, Not Façade — The Fifth Circuit Affirms the Proper Basis Requirement for Admissibility of Expert Opinions in Newsome v. International Paper Co.

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In a toxic tort case, plaintiffs must establish general causation. If a substance is incapable of causing the type of injury plaintiff claims, then it certainly didn’t cause theirs. Under Texas law, toxic tort plaintiffs must prove general causation either by “direct, scientifically reliable proof,” or by “indirect” epidemiological evidence. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 714-15 (Tex. 1977). In Newsome v. International Paper Company, plaintiff attempted to bypass this foundational requirement, and neither the district court, nor the Fifth Circuit was fooled. WL 5117195 (5th Cir. Dec. 16, 2024).

In Newsome, plaintiff was a truck driver for a company that supplied International Paper with sodium hydrosulfide (NaHS). Under certain conditions, NaHS releases hydrogen sulfide (H2S), an invisible gas with a characteristic rotten-egg odor. During a delivery in January 2019, plaintiff alleged he “smelt something” then “came to” on the ground. He presented to an urgent care clinic the following day but was diagnosed with only a rash. He did not visit a doctor again for four months. Then, more than a year later, plaintiff sued International Paper claiming “a host of life-threatening injuries” related to his alleged exposure to H2S.

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Sixth Circuit Applies FRE 702 to Class Certification Experts and Highlights Commonality and Predominance Issues for Products That Change Over Time

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Class certification decisions under Rule 23 of the Federal Rules of Civil Procedure mark a critical stage in any putative class action lawsuit. Rule 23(a) requires plaintiffs to prove, among other things, that “there are questions of law or fact common to the class.” And Rule 23(b) authorizes money damages class actions only where the legal or factual questions common to the class predominate over questions that may be addressed differently for individual class members. In class actions involving claims about product performance, class proponents almost always cite the existence of a “defect” as common issue. But why is the generic question of “defect” even the right question, and what if the product has experienced a significant change over the time period covered by the class action? When a product is updated, is it still the same “product” for purposes of Rule 23? The Sixth Circuit, in In re: Nissan North America, Inc., — F.4th —, 2024 WL 4864339 (6th Cir. 2024), addressed not only these questions but also joined the growing list of circuits that expressly require expert testimony offered at the class certification stage to satisfy Rule 702 of the Federal Rules of Evidence.

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