Subject: California

California Confronts the High Liability Costs of Scientific Uncertainty

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Much has been said about the eye-popping verdict and the post-trial rulings in the Roundup case tried in San Francisco earlier this year. Johnson v. Monsanto Co., 2018 WL 5246323 (S.F. Super. Ct. Oct. 22, 2018). The court sustained the jury’s award of ~$39 million in compensatory damages, including $37 million in non-economic damages, and its finding that Monsanto was liable for punitive damages. The court reduced the punitive award on due process grounds to a one-to-one ratio, slashing it from $250 million to approximately $39 million. Monsanto recently filed its notice of appeal, and as we await the briefing and argument, a few issues and takeaways merit further discussion, particularly several disturbing issues surrounding the award of punitive damages. We will save for another day (or post) other significant liability and damages issues.

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§ 510(k) Safety and Effectiveness – A Changing Landscape for Punitive Damages?

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The Central District of California recently issued an opinion that breathes new life into the argument that the § 510(k) substantial equivalence process for Class II medical devices involves an FDA finding of safety and effectiveness. It is part of a trend of recent federal cases giving credence to the § 510(k) process, which could have significant implications for punitive damages claims brought against manufacturers of Class II devices.

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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

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

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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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To Toll or Not to Toll? An Unsettling Answer

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Resolving a split among the intermediate appellate courts, the California Supreme Court recently issued an opinion that dramatically extends the period to file suit for birth defects in toxic tort cases. In Lopez v. Sony Electronics, Inc., No. S235357 (Cal. 7/5/18), the court held that these cases, already subject to tolling under the delayed discovery rule, are also tolled during the period of the plaintiff’s minority. The limitations clock does not even start to tick until at least the plaintiff’s eighteenth birthday.

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Uncertain Expectations – California’s Long Struggle with How to Measure Defectiveness in a Product’s Design (Part 2)

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Recap:  The background and prior post for this multi-part series can be found here.

In 1994, the California Supreme Court took up Soule v. General Motors Corp., 8 Cal.4th 548 (1994), to provide much-needed guidance as to when it is and is not appropriate to allow a jury to decide the design defect issue based on the consumer expectations test (CET). “Much-needed” may be an understatement – trial courts routinely allowed plaintiffs freely to elect what design defect standard the jury would consider, often both CET and the risk-benefit test (RBT), gaining the proverbial two bites at the apple, and the courts of appeal had not prescribed any meaningful limiting theory or principle.

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