Motor Vehicles Archives - Faegre Drinker on Products

Subject: Motor Vehicles

Solving the Culpable Co-Defendant Problem: An Update on Preserving Your Client’s Defenses after a Culpable Co-Defendant Files a Motion for Summary Judgment in California State Court

California appellate courts have recently provided much needed clarity for defendants wishing to preserve the ability to attribute fault to a potentially culpable co-defendant seeking summary judgment. We previously addressed this issue in a 2021 blog post, highlighting the uncertainty facing defense counsel where granting summary judgment to a co-defendant would preclude an empty chair defense. Two published 2025 decisions now confirm that defendants can oppose a co-defendant’s summary judgment motion directly with no cross-complaint required.

This is a rare and tricky situation. Defendants in multiparty litigation often share interests. Opposing a co-defendant’s motion can inflate costs, strain relationships, and ultimately benefit plaintiffs. But sometimes preserving the ability to attribute fault to a co-defendant is necessary to protect your client.

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California Supreme Court Rejects Duty to Innovate

On August 3, 2026, the California Supreme Court issued its decision in the closely watched Gilead Tenofovir Cases, No. S283862, — Cal.5th —, 2026 WL 2223748 (Cal. Aug. 3, 2026), rejecting the so-called “duty to innovate.” The court held, in a 6-1 decision, that “a drug manufacturer has no duty of care when deciding whether and when to develop and commercialize an allegedly safer alternative drug” to replace an admittedly nondefective drug. The decision is a significant victory for pharmaceutical manufacturers and carries substantial implications for product liability litigation across industries.

Background

The case arose from a Judicial Counsel Coordination Proceeding comprising more than 30,000 plaintiffs — HIV patients who took Gilead’s tenofovir disoproxil fumarate (TDF). Plaintiffs did not claim TDF was defective; it is undisputedly a life-saving medication. Instead, they alleged Gilead unreasonably delayed bringing an alternative medication, tenofovir alafenamide (TAF), to market, depriving them of a purportedly safer option and allegedly causing kidney, bone, or tooth injuries.

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Instruction Malfunction: Pennsylvania Superior Court Vacates $1B Verdict Due to Faulty Jury Instructions

Preserving objections to jury instructions can be the difference between paying a significant judgment or making a plaintiff prove their case again at trial.

In October 2023, a Philadelphia jury handed down a mammoth $980 million verdict for the plaintiff in Amagasu et al. v. Mitsubishi Motors North America et al., due to an allegedly defective seat belt. The verdict included $800 million in punitive damages. Amagasu et al. v. Fred Beans Family of Dealerships, et al., No. 1594 EDA 2024 (Pa. Super. Ct. Dec. 22, 2025). The presiding judge increased the compensatory portion of the verdict, pushing the total award past $1 billion.

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Florida Courts of Appeal Scrutinizing Punitive Damages Claims

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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Experts Who Cannot Articulate a Standard Cannot Opine that a Defendant Failed to Meet the Standard

If you don’t know where a line is, you can’t say whether someone has crossed it. That principle applies in spades to expert witnesses, particularly when their role in the case calls on them to help the jury understand where the lines are drawn in their field. Thus, for example, a toxicology expert who cannot say how much chemical exposure is required to produce a toxic effect cannot opine that the plaintiff’s exposure was sufficient to cause that effect. Likewise, an expert who criticizes a product’s warnings but cannot articulate an adequate warning does not pass muster under Federal Rule of Evidence 702. See, e.g., Bourelle v. Crown Equip. Corp., 220 F.3d 532, 538-39 (7th Cir. 2000).

The Seventh Circuit recently gave yet another illustration of this principle at work. In Burns v. Sherwin-Williams Co., — F.4th —, 2023 WL 5210857 (7th Cir. 2023), a plaintiff truck driver was injured while making a delivery at defendant’s store using a “walkie” (i.e., an electric forklift that the operator walks behind) owned by defendant. Plaintiff was backing the walkie down a ramp and toward a dumpster with pallets laying on the ground nearby. Unfortunately, he underestimated the walkie’s stopping distance. He tried “plugging” – i.e., pushing the thumb switch in the opposite direction to slow and then reverse the walkie – and then engaged the emergency brake, but it was too late. He trapped his foot against the pallets, then fell over and broke his ankle.

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The California Supreme Court Shrugs Off a Settlement to Provide Important Guidance on Admissibility of Former Deposition Testimony by Company Witnesses

We reported back in December [California Supreme Court Set to Decide How Defense Counsel Approach Defending Company Witness Depositions] on a case then pending before the California Supreme Court, Berroteran v. Superior Court. The case involves the former testimony exception to the hearsay rule, Evidence Code section 1291(a)(2), as applied to the deposition testimony of company witnesses taken in prior litigation. [Disclaimer: I wrote an amicus brief in support of the petition for review and another on the merits.]

Oral argument did not go well for the plaintiff. Consequently, it was not surprising that within a few days the parties notified the Court that they had reached a settlement. The Supreme Court could have dismissed the appeal at that point and left the issue unresolved. But because its core mission is “to secure uniformity of decision” and to settle important questions of law, Cal. Rule of Court 8.500(b), the Court went ahead and decided the appeal. 2022 WL 664719 (Cal. Mar. 7, 2022). And, as Larry David might say, the decision is pretty, pretty good.

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