Social media information that reflects a person’s physical condition, activity level, and emotional state is a particularly valuable source of discovery in product liability and personal injury cases. See, e.g., Forman v. Henkin, 30 N.Y.3d 656 (2018). Lawyers must take great care to collect that information ethically.
Category: Practice of Law
The Ship Has Sailed on Plaintiffs’ Efforts to Recover for Mere Fear of Contracting COVID-19
On February 21, 2020, the cruise ship Grand Princess embarked from San Francisco, headed to Hawaii. Among the ship’s 3,533 passengers and crew were 62 people who had been exposed to COVID-19 on the ship’s immediate prior trip to Mexico. The Hawaii voyage was curtailed and the ship docked off the cost of California for two weeks, during which passengers were confined to their rooms and two dozen people tested positive. A number of personal injury lawsuits followed, the majority of which have been coordinated before Hon. R. Gary Klausner in the U.S. District Court for the Central District of California.
Minnesota Supreme Court’s Abolishment of Century-Old Common-Law Prohibition Against Champerty Paves Way for Third-Party Litigation Financing
In a unanimous decision, the Minnesota Supreme Court abolished Minnesota’s common-law prohibition against champerty and maintenance, opening Minnesota to third-party litigation financing. Maslowski v. Prospect Funding Partners LLC, et al., A18-1906, 2020 WL 2893376 (Minn. June 3, 2020).
For the less practiced in Middle English, champerty is “an agreement to divide litigation proceeds between the owner of the litigated claim and a party unrelated to the lawsuit who supports or helps enforce the claim” and maintenance is “improper assistance in prosecuting or defending a lawsuit given to a litigant by someone who has no bona fide interest in the case, meddling in someone else’s litigation.” Black’s Law Dictionary (11th ed. 2019). Today, champerty and maintenance are often associated with third-party litigation financing.
Effectively Navigating PREP Act Case Law – The Products Liability Perspective
Since the federal Public Readiness and Emergency Preparedness Act (the PREP Act) was enacted by Congress in 2005, only a few courts have substantively commented on the Act’s requirements. The PREP Act provides federal immunity against state law tort claims to covered entities that manufacture covered countermeasures used to fight diseases and viruses declared as national emergencies, such as COVID-19.
The pivotal case substantively applying the PREP Act’s immunity defense is Parker v. St. Lawrence County Pub. Health Dept., 102 A.D.3d 140 (N.Y. App. Div. 2012). The Parker court held that because the plaintiffs’ daughter was administered a covered countermeasure to prevent the H1N1 virus, their state law claims for negligence were preempted and barred by the PREP Act’s immunity provisions. To date, no reported decision has permitted traditional state law tort claims against a manufacturer for the alleged use of a covered countermeasure under the PREP Act.
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Preparing for the COVID-19 Immunity Preemption Defense
As manufacturers of vaccines, pharmaceutical medicines, ventilators and respirators engage substantial resources and ramp up production to help fight COVID-19, many have presumably done so under the immunity protections afforded by the federal Public Readiness and Emergency Preparedness Act (the PREP Act codified at 42 USC §247d-6d), and Coronavirus Aid, Relief, and Economic Security Act (the CARES Act). Because of industry-wide uncertainty surrounding PREP Act immunity and the need for immediate and urgent action on the part of manufacturers, the U.S. Department of Health and Human Services (HHS) recently issued a non-binding Advisory Opinion explaining the scope of PREP Act coverage, its immunity provisions in the context of COVID-19 countermeasures, and informal guidance on the preemptive effect of the federal law.
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Seventh Circuit Finds Preemption in Reversing Generic Paxil Verdict Against GSK, But Passes on Deciding Innovator Liability Issues
In a much-anticipated ruling on the appeal of a $3 million verdict against GlaxoSmithKline (GSK) in a wrongful death case involving the Paxil generic, paroxetine, the U.S. Court of Appeals for the Seventh Circuit reversed on Wednesday and held that the plaintiff’s claims were preempted under Wyeth v. Levine, 555 U.S. 555 (2009). Dolin v. GlaxoSmithKline LLC, No. 17-3030, slip op. at 25 (7th Cir. August 22, 2018). The appellate court’s decision was also notable in that the court ruled on the preemption issues without addressing whether Illinois law would permit a claim of “innovator liability” against brand manufacturer GSK when the plaintiff had only taken generic paroxetine manufactured by a different company. Id.