Remedies Archives - Faegre Drinker on Products

Category: Remedies

Dissecting the New EU Product Liability Directive: Codification of Novel Categories of Recoverable Damages

Major changes are on the horizon for product liability laws in Europe with the EU’s December 9, 2026, deadline fast approaching for member states to implement the new Product Liability Directive (PLD). Continuing with our in-depth breakdown of the PLD, we analyze its recognition of two new types of recoverable damages: standalone medically recognized psychological harm and economic claims stemming from data loss or corruption.

Overall, companies operating in the EU should anticipate that the new PLD may bring more frequent claims, greater exposure, and higher legal expenses due to its myriad changes, including codification of these novel damages claims.

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Amendments to Minnesota Wrongful Death and Survival Statutes Open the Door to Pain and Suffering Claim

On May 20, 2023, the amendments to the Minnesota wrongful death and survival statutes, Minn. Stat. §§ 573.01, 573.02, became effective. This means that duly appointed administrators can now bring claims for “all damages suffered by the decedent resulting from the injury prior to the decedent’s death” – on top of the pecuniary losses that have traditionally been available. While the meaning of the term “all damages” has yet to be fully hashed out, this new change appears to open the door to claims for pre-death personal injuries, pain and suffering, and more.

Traditionally, Minnesota law has not provided compensation for personal injuries following the death of a decedent—including in wrongful death cases. See Holtegaard v. Soo Line R.R. Co., No. A13-2079, 2014 WL 3396871, at *3 (Minn. Ct. App. July 14, 2014). In fact, the applicable jury instructions have specifically excluded amounts “for the pain and suffering” of the decedent before death. CIVJIG 91.75 Wrongful Death, 4A Minn. Prac., Jury Instr. Guides (6th ed.). Instead, Minnesota historically allowed damages only for what courts have interpreted to be pecuniary losses “created by the decedent’s death.” Regie de l’Assurance Auto. du Quebec v. Jensen, 399 N.W.2d 85, 89 (Minn. 1987). These have included the financial losses associated with death (e.g., medical expenses and funeral costs), as well as the loss of advice, comfort, assistance, and protection previously provided by the decedent. Fussner v. Andert, 113 N.W.2d 355, 363 (1961).

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5 Major Drug and Device Developments of 2022

As we ring in the new year, it is time once again to reflect on some of the most significant legal developments for drug and device companies this year. The list below is by no means exhaustive (who could forget the Rule 702 updates that took place this year, which will carry over into 2023?), but provides a brief recap and assessment of five of the most interesting and consequential developments affecting drug and device law in 2022.

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Illinois Court Finds Prejudgment Interest Statute Unconstitutional

On May 27, 2022, the Circuit Court of Cook County ruled that Illinois’ recently enacted prejudgment interest statute is unconstitutional. Hyland v. Advocate Health and Hospitals Corporation, et al., No. 2017-L-003541. We reported on the passage of that statute here. In Hyland, a wrongful death/medical malpractice case, the court ruled that the statute violated the right to trial by jury and the prohibition against special legislation. This order will surely face appellate scrutiny, but for now it raises some uncertainty over the valuation of personal injury and wrongful death cases pending within the state.

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Exclusion of Damages Expert at Class Certification Stage Results in Partial Denial of Certification Motion

Just a decade ago, it was still an open question whether parties could challenge the admissibility of expert testimony in class certification proceedings. The United States Supreme Court recognized the issue in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), and suggested that experts should be scrutinized as usual, noting that “The District Court concluded that Daubert did not apply to expert testimony at the certification stage of class-action proceedings. We doubt that this is so . . .” Since then, multiple circuits have taken that hint and held that a court must conduct a full Rule 702 analysis before deciding whether to certify a class. The Fifth Circuit, in Prantil v. Arkema Incorporated, 986 F.3d 570 (5th Cir. 2021), became the fourth federal court of appeal to adopt this rule expressly. As the district court’s recent decision on remand in Prantil demonstrates, a full Rule 702 analysis can make the difference between certifying or rejecting a class.

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Can a Person Marry Into Consortium Damages in a Wrongful Death Claim? Florida’s Fourth and Fifth District Courts of Appeal Are in Conflict

As things stand, a spouse who marries a decedent post-injury cannot recover wrongful death damages in the Fourth District but can recover such damages in the Fifth District. All eyes are on the Florida Supreme Court to resolve the confusion, contradiction and uncertainty facing some Florida litigants related to wrongful death claims.

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