Defense “Victory” Against Employee’s Spouse in COVID-19 Exposure Case

On May 7, a California District Court Judge granted Victory Woodworks, Inc.’s (“Victory”) motion to dismiss all COVID-19 liability claims in plaintiffs Robert and Corby Kuciemba’s amended complaint. Kuciemba et al. v. Victory Woodworks Inc., No. 3:20-cv-09355 (N.D. Cal. 2020). Relying on a novel theory of liability, the Kuciembas alleged that Mr. Kuciemba contracted mild COVID-19 in the course and scope of his employment at Victory, and subsequently passed it on to his wife, who suffered a severe case of COVID-19 with lasting injury. The Kuciembas sought damages from Victory for Mrs. Kuciemba’s injuries related to COVID-19.

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Ninth Circuit Affirms Dismissal of Breast Implant Cases on Preemption Grounds

The Ninth Circuit has confirmed in quadrophonic sound that plaintiffs cannot avoid preemption by relying on vague and speculative allegations to establish a parallel claim.  The court affirmed the dismissal of four lawsuits by plaintiffs claiming they were injured by breast implants on the grounds that their claims are barred by the 1976 Medical Device Amendment to the Food, Drug and Cosmetic Act (MDA).  Sewell v. Mentor Worldwide, LLC, et al., no. 19-56393; Vieira v. Mentor Worldwide, LLC, et al., no. 19-56394; Billetts v. Mentor Worldwide, LLC, et al., no. 19-56398; Nunn v. Mentor Worldwide, LLC, et al., no. 19-56391.

In each case, California plaintiffs alleged their breast implants were defective and caused them to experience fatigue, muscle pain, and migraines.  The district courts dismissed the complaints for failure to state a claim on grounds of preemption, and plaintiffs appealed.

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“Vanilla” Milk Claims Continue to Sour as Southern District of New York Dismisses Putative Class Action Complaint

As we discussed in a previous post, the Northern District of California recently dismissed a plaintiff’s claim that the term “vanilla” was misleading on the label of a soymilk product.  The Southern District of New York has now similarly dismissed a putative class action complaint alleging that a “vanilla” almond milk product was labeled in a way that misled customers.

In Wynn v. Topco Associates, LLC, No. 19-cv-11104, Plaintiffs alleged that Defendant’s use of the word “vanilla” on the label of its almond milk product – “Vanilla Almost Milk” – falsely communicated to consumers that the beverage’s flavor was derived entirely from real vanilla, when in fact the product includes non-vanilla flavorings.  Plaintiffs claimed, among other things, that this violated the New York General Business Law (NYGBL).

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Northern District of California Sours Plaintiff’s Claims against “Vanilla” Soymilk Maker

The Northern District of California recently dismissed a Plaintiff’s claim that the term “vanilla” was misleading on the label of a soymilk product, but left the proverbial door open for the filing of an amended pleading.

In Clark v. Westbrae Natural, Inc., Case No. 20-cv-03221, Plaintiff alleged that Defendant’s use of the word “vanilla” on the label of its organic unsweetened soymilk misrepresented to consumers that the product’s vanilla flavor was derived exclusively from the vanilla bean plant. Gas chromatography‒mass spectrometry analyses showed that the flavor came from a non-vanilla source. Plaintiff alleged he would not have purchased the product had he realized the flavor was not derived from the vanilla bean, and asserted claims under California’s Unfair Competition Law, False Advertising Law, and Consumers Legal Remedies Act.  He argued that the product should be labeled “artificially flavored.”

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Potential Embarrassment Insufficient to Enable Plaintiffs to Litigate Anonymously in Breast Implant MDL

A New Jersey federal court has held that potential embarrassment is not enough to permit plaintiffs to litigate anonymously in a fight over breast implants.

In an August 13, 2020 letter order, the Hon. Joseph A. Dickson, U.S.M.J., ruled that the plaintiffs alleging that defendant Allergan Inc. hid health risks associated with its textured breast implants must reveal their identifies in court filings in the MDL litigation captioned In re: Allergan BIOCELL Textured Breast Implant Prods. Liab. Litig., No. 19-MD-2121.

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