Update – Ninth Circuit Rules on Local Efforts to Block GMOs

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Last year, we followed the story of ballot efforts on a local level to preclude GMO crops from being grown in certain counties in Hawaii. The ballot initiatives, which banned GMO crops within the borders of the counties, passed by narrow margins, but were immediately struck down in court after a challenge from various agricultural companies. Local organizations filed an appeal to the Ninth Circuit, seeking to overturn the District Court decision stating that the ballot initiatives were preempted by federal and state laws. The court has now ruled, upholding the lower court’s decision that federal laws such as the U.S. Plant Protection Act and Hawaii’s own state statutory scheme preempt any local rules or efforts on banning GMOs. The court reasoned that both the federal and state legislation was ...
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District of Columbia Adopts Rule 702 Standard in Cell Phone Brain Tumor Cases

3d rendered illustration - male brain On October 20, 2016, the District of Columbia Court of Appeals abandoned the long-used Dyas/Frye test to govern the admissibility of expert testimony in favor of the standards embodied in Rule 702 of the Federal Rules of Evidence. The court issued its decision after the lower court permitted plaintiff expert opinions linking cell phone use to brain tumors under the then-existing Dyas/Frye standard. In the matter of Motorola Inc. v. Henry, plaintiffs in thirteen cases had sued numerous cell phone manufacturers, service providers and trade associations, alleging that long-term exposure to cell phone radiation causes brain tumors. After consolidation for the purposes of a Dyas/Frye hearing, the Superior Court of the District of Columbia, Civil Division, conducted an evidentiary hearing to determine the admissibility of plaintiffs’ medical causation experts. The ...
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Talc Defendant Found to Have Consented to Personal Jurisdiction in Denial of its Motion to Dismiss

Talcum powder on black background Nancy Bors, as administrator of the Estate of Maureen Milliken, brought this action against Imerys Talc America Inc. and Johnson and Johnson for claims in negligence for their “design, development, manufacture, testing, packaging, promoting, marketing, distribution, labeling, and/or sale of Johnson and Johnson baby powder” Milliken allegedly developed and died from ovarian cancer. Imerys moved to dismiss and argued that the court lacked jurisdiction or in the alternative for failure to state a claim. Specific to its argument, Imerys took the position that it had not availed itself to Pennsylvania by virtue of registering as a foreign corporation. In the alternative, Imerys argued that notwithstanding jurisdiction, the court should dismiss as Bors lacked standing under the Unfair Trade Practices and Consumer Protection Law (UTPCPL). The plaintiff argued that jurisdiction existed by ...
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Automation May Be Safer, But Also Increases Risks to Vehicle Manufacturers

477369638 One of the benefits behind automated vehicles, also known as self-driving vehicles, is a reduction of risks to those in the vehicle. There is a race among the largest automobile and technology companies to have fully automated cars. For example, Tesla cars have an autopilot system, Uber unveiled self-driving cars in Pittsburgh just last month and Ford believes it will be mass-producing self-driving cars with no steering wheels, brakes, or gas pedals within five years. While there are safety benefits to automated vehicles, manufactures need to understand that there are also risks associated with their automated vehicles when an accident does occur. While the race to develop a fully automated vehicle is still in its infancy, and the direction of litigation following an accident in an automated vehicle is uncertain, ...
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The Surge of “TCCWNA” Class Actions in New Jersey

495037894 Until recently, the New Jersey Truth-In-Consumer Contract Warranty and Notice Act (TCCWNA or the Act) was a relatively obscure consumer protection statute that sat dormant on New Jersey’s books for almost three decades. That all changed when a series of cases opened the floodgates to consumer class action litigation. In April, the New Jersey Civil Justice Institute issued a staggering prediction that the wave of TCCWNA lawsuits against retailers and other defendants could double in size over the next two years. Building Up TCCWNA The purpose of TCCWNA is to prevent deceptive practices in consumer contracts by prohibiting the use of illegal terms or warranties. Kent Motor Cars, Inc. v. Reynolds & Reynolds Co., 207 N.J. 428, 457 (2011). The essence of TCCWNA is a vague provision prohibiting the use ...
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The Federal Rules of Civil Procedure Amended to Address Proportionality of Discovery

543441518 Relief may be in sight for the discovery costs of large corporate defendants involved in toxic tort litigation. As happens all too often in  toxic tort cases, a single plaintiff (or a group of similarly situated individuals) asserts claims against one or more large corporations that have been in business for many years. Due to the length of the corporation’s existence, there is a voluminous amount of corporate information and documents. When the plaintiff’s predicatably requests the entirety of these documents in the discovery process, the resulting burden and expense on the corporate defendant can be extreme, yet much of the information sought may bear little relevance to the alleged plaintiff’s claims. This problem can be further compounded when the alleged toxic substance has a long latency period. Many defendants frequently respond to such requests with standard “boilerplate” ...
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New Jersey Rules No Scientific Connection Between Talc and Ovarian Cancer

This year, an emerging legal and scientific battle is brewing across the country as to whether use of talc products by women in the perineal area can lead to ovarian cancer. While the FDA has stated there is no established casual connection and those products remain on the market, two St. Louis courts permitted plaintiffs’ experts to testify as to a causal connection, which resulted in juries awarded $72 million and $55 million against Johnson and Johnson. Those verdicts have led to a spike in attorney advertising and lawsuits filed, both in St. Louis and New Jersey (as well as a smattering of cases in other states and federal court). Well, New Jersey has now chimed in and emphatically ruled that there is no established causal connection to support such ...
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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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