New Jersey MCL Update: Three New Consolidated Litigations in New Jersey

August was a busy month for multi-county litigation (MCL) in New Jersey: the Supreme Court of New Jersey designated three new MCLs and terminated one in a matter of just three days. Newly added to the MCL docket are the Physiomesh Flexible Composite Mesh litigation, Zostavax litigation, and Taxotere litigation. Meanwhile, the Pompton Lakes Environmental Contamination litigation has been terminated. Here is a brief update on these four litigations.

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New Study Shows Link Between Increased Product Liability Litigation And Decreased Technological Innovation

It’s an argument both manufacturers and the defense bar have been making for years: an increased risk of liability for new products will deter manufacturers from developing new technologies. Yet despite the apparent logic of such an argument, there was scant empirical evidence backing up this claim . . . until last month.

Researchers Alberto Galasso of the University of Toronto and Hong Luo of Harvard Business School recently published a working paper that examines the impact of increased litigation for medical implant manufacturers in the early 1990s. The paper, titled “How Does Product Liability Risk Affect Innovation? Evidence From Medical Implants,” shows how this increase led to a decrease in downstream innovation in medical implants and demonstrates how tort reform—specifically the 1998 Biomaterials Access Assurance Act (BAAA)—subsequently reversed this trend and spurred further innovation for raw material manufacturers.

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The California Supreme Court Addresses the Admissibility of Industry Custom and Practice Evidence In a Design Defect Case and Holds That … It Depends

In Kim v. Toyota Motor Corp., No. S232754 (August 27, 2018) the California Supreme Court broke with 40+ years of intermediate court of appeal precedents barring manufacturers from using evidence of their compliance with industry custom and practice to prove their design was not defective.  Rather, the Court held, such evidence is no longer categorically inadmissible, but neither is it categorically admissible.  Admissibility depends on the nature of the evidence and the purpose for which it is offered.

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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.

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Uncertain Expectations – California’s Long Struggle with How to Measure Defectiveness in a Product’s Design (Part 3)

Recap:  Part 1 (here) discussed the background of the consumer expectations test (CET) and part 2 (here) described the California Supreme Court’s seemingly definitive decision in Soule v. General Motors Corp., 8 Cal.4th 548 (1994) explaining the types of cases where CET can be applied.

Any expectation by legal consumers that Soule’s careful guidance would produce coherence and consistency was overly optimistic. The courts’ conceptual struggles in the wake of Soule are best illustrated by a string of decisions in cases that, like Soule, deal with “crashworthiness” or “enhanced injury.” These cases allege that the vehicle failed to adequately protect the occupant in a crash.

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