What Impact Does Spokeo Have on TCCWNA?

US Supreme Court in Washington DC in bright sunlight

The U.S. Supreme Court’s recent decision in Spokeo, Inc. v. Robins has, rightfully, attracted much attention in the world of class action litigation. The court reaffirmed that plaintiffs must possess Article III standing to bring suit in federal courts, clarifying that plaintiffs must allege a concrete injury as opposed to a mere statutory/procedural violation by a defendant. Defendants will rely on the decision to argue that plaintiffs are not able to allege or show any concrete injury with respect to many of the statutory based claims frequently asserted in support of class actions, such as the Fair Credit Reporting Act (FCRA) or the Telephone Consumer Protection Act (TCPA). However, the impact of the decision with respect to class actions based on the New Jersey’s Truth-in-Consumer Contract, Warranty and Notice Act ...
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New Regulations for the Prevention of Legionnaires’ Disease: Implications for Product Manufacturers

486818448 Legionnaires’ disease, or legionellosis as it is known in medical circles, is a severe form of bacterial pneumonia first identified in 1976 following an outbreak among those attending an American Legion convention held at the historic Bellevue Stratford Hotel in Philadelphia. Research has since proven legionellae bacterium to be ubiquitous, occurring naturally in lakes and streams as well as potable water distribution systems. Studies have established that legionellae is present in virtually all municipal water supplies at some level. Given a proper food source, stagnant water flow and water temperatures averaging 98 degrees Fahrenheit, innocuous levels of the bacteria can quickly amplify to levels sufficient to cause infection. For inoculation to occur, water containing amplified levels of legionella must be aerosolized and ultimately breathed into the lungs of a susceptible ...
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New FDA Regulations on E-Cigarettes Set to Take Effect

468119924 On May 3, 2016, the Food and Drug Administration expanded their reach to include the regulation of, among others, e-cigarettes and hookah tobacco.  The FDA regulates “tobacco products,” defined to be any product made or derived from tobacco that is intended for human consumption, including any component, part, or accessory of a tobacco product, including, among other products, cigarettes, cigarette tobacco, roll-your-own tobacco, and smokeless tobacco.  Until now, e-cigarettes were not considered a part of that definition. According to the FDA, it will be able to review new e-cigarettes not yet on the market, help prevent misleading claims by e-cigarette manufacturers, evaluate the ingredients of the majority of e-cigarettes and how they are made and make mandatory warning labels on products.  This also means that e-cigarettes cannot be sold to ...
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The NJ Supreme Court Reminds Litigators How to Properly Use Requests to Admit and Missing Witness Charges

iStock_000054736346 In Torres v. Pabon, the New Jersey Supreme Court clarified two sometimes misunderstood, but useful, litigation tools — the Clawans missing witness jury charge and requests to admit. Torres’ facts are straightforward. Early one morning, the plaintiff, Torres, drove her vehicle into the back of a garbage truck. The garbage truck was driven by the defendant, Pabon, and owned by his employer, defendant Suburban Disposal, Inc. Some of the rear lights on the garbage truck were obstructed by debris that could not be removed simply by wiping the lights with a rag. The New Jersey Supreme Court found that the trial court made multiple, cumulative errors. Here we focus on the court’s discussion of just two of the errors it found. The trial court’s use of the Clawans charge related to ...
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Eighth Circuit Court of Appeals Rules Product Manufacturer Satisfied its Duty to Purchaser Under Optional Equipment Doctrine

512890409 In Parks v. Ariens Company (No. 15-2664), the U.S. Court of Appeals for the Eighth Circuit affirmed a District Court ruling granting summary judgment to a lawnmower manufacturer, finding that the manufacturer had satisfied its duty to the purchaser by offering an optional roll over protection system (ROPS) which would have prevented the accident that formed the basis for the plaintiff’s lawsuit. The plaintiff’s husband died from asphyxiation after the lawnmower he purchased from an authorized dealer rolled over on top of him as he was operating the mower on his property.  At the time the decedent purchased the lawnmower, the manufacturer offered a ROPS system, which consisted of a roll bar and a seatbelt, and recommended the use of the ROPS when operating the mower on a slope. The ...
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New Jersey’s High Court Opens Door for Toxic Tort Liability to Individuals Other Than Spouses in Take-Home Exposure Cases

531315252 In a recent decision, the New Jersey Supreme Court unanimously ruled that the premise liability of a landowner can go beyond the spouse of an exposed person of a toxic substance on the landowner’s property. In its ruling, the court would not set a limitation as to how far the duty could extend, but stressed each case would have to be determined on its own facts. In the case, the plaintiffs, Paul and Brenda Ann Schwartz, claimed that Mr. Schwartz was exposed to beryllium that he brought home causing exposure to Mrs. Schwartz while they were dating and before they were married and living together. Mrs. Schwartz subsequently developed chronic beryllium disease. The case was brought in Pennsylvania state court, but was subsequently removed by the defendants to federal court. ...
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Federal Legislation to Label GMOs Moves Through Senate

474161813 Back in June, a new Senate bill was proposed which would require food manufacturers to label products which contain genetically modified organisms (GMOs). As of last week, the bill has cleared the first hurdle and will be debated with a limit of 30 hours on the floor, and voted on as early as this week. For those in the food industry, there has long been wind of such an effort being made at the federal level, but until recently, none held any strength. But, with recent election cycles creating local and state regulations requiring that GMOs be identified on the label (some successful, others not), there has been an acknowledgment that some uniformity is needed at the national level in order to create continuity and consistency for manufacturers and consumers ...
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New Legislation Will Update and Modernize the Toxic Substances Control Act

178709266 Recently passed legislation by the U.S. House of Representatives and the U.S. Senate will amend and update the Toxic Substances Control Act (15 U.S.C. §2601 et seq. 1976). Originally passed in 1976, the Toxic Substances Control Act (TSCA) gave the United States Environmental Protection Agency (EPA) authority to regulate and establish restrictions on certain chemical and chemical compounds, including the establishment of reporting, record keeping, and testing requirements.  While certain substances, including food, drugs, cosmetics, and pesticides are excluded from the TSCA, chemicals and compounds such as polychlorinated biphenyls (PCBs), asbestos, radon, and lead-based paint are regulated. Currently, the EPA’s TSCA inventory contains over 83,000 regulated chemicals. Under the proposed changes, the TSCA will be amended to require the EPA to regulate chemicals so that they no longer present unreasonable ...
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Simply Naming Defendants in Interrogatory Responses Held Insufficient For Plaintiff to Prevent a Shifting of Burden of Proof on Summary Judgment In New York, Erie County Case

482440409 On May 26, 2016 a decision and order in Blamowski v. Air & Liquid Systems, Inc., et al., Index No. 808655/2014 came down granting summary judgment to several defendants in a take-home deceased mesothelioma case. In this case, it was alleged that the decedent was exposed to asbestos from laundering her husband, Eugene Blamowski’s, work clothes. Mr. Blamowski worked as a laborer at Bethlehem Steel from 1955-84, with the exception of his Army service from 1958–62. He and the decedent were married in 1965 and the decedent had laundered his clothes since that time. Several defendants, including Frontier Insulation Contractors, Beazer East, Riley Power, Inc., and Buffalo Pumps, Inc., moved for summary judgment based on lack of product identification and argued that Mr. Blamowski could not show he was exposed to ...
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California Supreme Court Tackles Sophisticated Intermediary Doctrine

475449310 Raw suppliers that place their products in the stream of commerce face a dilemma regarding the uncertainty of their duty to warn of the potential hazardous nature of their products. The sophisticated intermediary doctrine is one weapon a raw supplier has against the presumption that a supplier of a hazardous raw material has a general duty to warn all downstream users. The sophisticated intermediary doctrine originated in the Restatement Second of Torts in an attempt to define the duty of a supplier. The doctrine allows a supplier to discharge its duty to warn end uses of its product if it: (1) provides adequate warnings to the product’s immediate purchaser, or sells to a sophisticated purchaser that it knows is aware or should be aware of the specific danger, and (2) ...
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