“Bellwether” cases are an important case management tool in many MDL proceedings, which typically include numerous individual claims. A bellwether is the sheep that leads the flock, and in an MDL, these lead “test” cases may shed important light on how a jury will react to the parties’ themes, how credible and persuasive their experts are, and how the court views key legal issues.  This information can at times be as, if not more, important as the amount of the actual verdict.  But to shed meaningful light, the bellwether trials must produce a sufficient number of outcomes to provide relevant guidance, given the variety of fact patterns in a typical MDL.  Outcomes in this context might include motions practice, but often does really mean verdicts.

Recently, the judge overseeing the device MDL, In re Cook Filter MDL (amended bellwether), No. 1:14-ml-02570 (MDL S.D. Ind.)(Third Amended CMO #27, 10/26/2020), has had to confront two issues affecting the litigation’s bellwether case management plan.  The first three bellwether cases ended before trial, and now the pandemic is impacting how a new bellwether trial might proceed.  Accordingly, he issued an order amending the bellwether case process, in essence asking the parties to provide additional information for the selection of viable and appropriate bellwethers. Continue Reading MDL Revises “Bellwether” Trial Process

For the second time, a federal court has rejected a complaint against defendants on behalf of a putative class, alleging defendants misled consumers by selling apple juice and applesauce products with the representation “Natural” and/or “All Natural Ingredients.”  Plaintiffs asserted five causes of action, all revolving around the claim the products contained trace, legal amounts of a pesticide residue. The court granted a motion to dismiss, and since further amended complaints would be futile, it dismissed the amended complaint WITHOUT leave to amend. Hawyuan Yu v. Dr Pepper Snapple Grp., Inc., No. 18-CV-06664-BLF, 2020 WL 5910071, at *1 (N.D. Cal. Oct. 6, 2020).

Plaintiff purchased Mott’s Natural Applesauce and Natural Apple Juice on multiple occasions from a Costco, claiming he saw, relied upon, and reasonably believed defendants’ representations that the products were “Natural” and made of “All Natural Ingredients.” He alleged that the products contained trace amounts of acetamiprid, a “synthetic and unnatural chemical, ” used in treating and harvesting crops, including fruits and vegetables.  Certain amounts of residuals are permitted to remain on fruits and vegetables.

Plaintiff’s first class action was dismissed, and in his amended complaint, he added a 2015 Consumer Reports Survey and a 2019 study that he claimed showed a majority of consumers understand “natural” to mean a product has no “toxic pesticides.”

The Ninth Circuit has explained that the three California statutes universally relied on by plaintiffs in attacking food labels (UCL, FAL, CLRA) are governed by the reasonable consumer test. Cheslow v. Ghirardelli Chocolate Co., 445 F. Supp. 3d 8, 15 (N.D. Cal. 2020) (quoting Williams v. Gerber Prod. Co., 552 F.3d 934, 938 (9th Cir. 2008)). Under the reasonable consumer standard, plaintiffs must show that members of the public are likely to be deceived and this requires more than a mere possibility that defendant’s product might conceivably be misunderstood by some consumers viewing it in an unreasonable manner. Rather, the test requires a probability that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled. Cheslow, 445 F. Supp. 3d at 16 (quoting Lavie v. Procter & Gamble Co., 129 Cal.Rptr.2d 486, 495 (Cal. Ct. App. 2003)). While the reasonable consumer question is not always amenable to resolution at the motion to dismiss stage, a court may determine, as a matter of law, that the alleged violations are simply not plausible. 2020 WL 5910071, at *4.
Plaintiff’s theory of deception—reasonable consumers interpret the word natural to mean a food product that is completely free of any trace pesticides—has been rejected by several courts: Parks v. Ainsworth Pet Nutrition, LLC, 377 F. Supp. 3d 241 (S.D.N.Y. 2019); Axon v. Citrus World, Inc., 354 F. Supp. 3d 170 (E.D.N.Y. 2018), aff’d sub nom. Axon v. Florida’s Nat. Growers, Inc., 813 F. App’x 701 (2d Cir. 2020); and In re General Mills Glyphosate Litig., No. 16-2869, 2017 WL 2983877 (D. Minn. July 12, 2017).  And the Ninth Circuit recently held in Becerra v. DrPepper/Seven Up, Inc., 945 F.3d 1225, 1231 (9th Cir. 2019) that a plaintiff cannot rely on consumer surveys alone to make plausible the allegation that reasonable consumers are misled when the complaint does not otherwise plead facts establishing deception. In fact, one of the surveys cited in the amended pleading actually suggested that in contrast to the term “organic,” the term “natural” held no clear meaning for consumers. Thus the court agreed that the weight of authority in the federal courts shows that plaintiff’s reasonable consumer theory was not plausible as a matter of law. 2020 WL 5910071, at *4–5. “Plaintiff doesn’t have carte blanche to take illogical leaps and bounds and leave the Court to connect the dots.”  Id. at *6.

Continue Reading “Leaps and Bounds” on Natural Products

A recent Fifth Circuit case reminds us of the interplay, in a diversity setting, of federal and state law.  In Jordan v. Maxfield & Oberton Holdings, L.L.C., No. 19-60364, 2020 WL 5939296 (5th Cir. Oct. 7, 2020), the plaintiffs brought suit after their young child was injured after ingesting Buckyball magnets. After an eight-day trial, the jury returned a verdict for the defendant. Appeal ensued.

Buckyball magnets were small neodymium magnets that can be manipulated into various shapes. Prior to 2010, Buckyball magnets were labeled as appropriate for children ages 13 and up. After that, the defendant  worked with the CPSC to change Buckyball magnet labels to indicate that the magnets were not intended for children of any age. The new label appeared on Buckyball magnets in 2011 and warned that they were to be kept away from all children and could cause serious injury or death if swallowed or inhaled. In March 2011, plaintiffs purchased the product, and the injury occurred in 2012.
The case went to trial on the defective design claim.  Under the Mississippi Product Liability Act (“MPLA”), a claimant must demonstrate that the product was defective “at the time the product left the control of the manufacturer, designer or seller.” Miss. Code Ann. § 11-1-63(a) (2014). Claimants must also show that “[t]he manufacturer or seller knew, or in light of reasonably available knowledge or in the exercise of reasonable care should have known, about the danger that caused the damage for which recovery is sought.” Id. at § 11-1-63(f)(i). “The [MPLA] speaks only of dangers known as of the time the product leaves the control of the manufacturer or seller.” Noah v. Gen. Motors Corp., 882 So.2d 235, 239 (Miss. Ct. App. 2004).

Based on this, defendant filed a motion in limine to exclude post-sale evidence.  Plaintiffs opposed M&O’s motion in limine and sought to introduce various pieces of post-sale evidence, including communications with the CPSC. The district court granted the motion in limine in part and excluded most post-sale evidence.  On appeal, plaintiffs argued that these exclusionary rulings constituted prejudicial error because the rulings prevented them from fully presenting their case and cross-examining M&O’s witnesses. A central issue at trial was whether Buckyball magnets were children’s toys or adult products, and the plaintiffs argued that they were unable to fully present their case on this issue.

Though the Jordans argued that the district court’s ruling deprived them of vital evidence, the 5th Circuit noted that the MPLA requires claimants to prove defect based on what the manufacturer knew at the time the product was soldMiss. Code Ann. § 11-1-63(a). The MPLA makes it clear that the defendant’s alleged conduct here should only be evaluated through March 2011 for the purposes of this lawsuit. Evidence of the CPSC’s 2012 regulation of M&O may have cast certain earlier action in a different light at trial, but this fact does not compel the admission of evidence that was properly excluded. Thus, plaintiffs had not demonstrated that the district court’s exclusion of post-sale evidence was prejudicial error.

Our long time readers know that medical monitoring is a frequent topic here, probably because as a young (younger?) lawyer we got an opportunity to help try a medical monitoring class action to defense jury verdict.

In the years since then, several states have weighed in on the availability of medical monitoring, which refers to future medical testing of a plaintiff who has not suffered a manifest traditional physical injury, but who has been exposed to a hazardous substance or product and claims to therefore be at increased risk of contracting a future disease or injury; the plaintiff is then monitored periodically with appropriate medical testing to facilitate early detection and diagnosis of that possible future consequence.  Medical monitoring thus turns on the notion of latency, the time between exposure and manifestation of a symptomatic or detectable injury. See Sutton v. St. Jude Med. S.C., Inc., 419 F.3d 568, 571 (6th Cir. 2005) (“A medical monitoring award aids presently healthy plaintiffs who have been exposed to an increased risk of future harm to detect and treat any resultant harm at an early stage.”).

The general trend has been against the recognition of the claim/remedy, and the latest word on the subject comes from the Illinois Supreme Court in a proposed proposed class action by Chicago residents claiming the city failed to warn them of lead exposure in their drinking water. Berry v. City of Chicago, 2020 IL 124999, 2020 WL 5668974  (Ill. Sept. 24, 2020). Continue Reading Illinois Rejects Medical Monitoring Too

A quick personal note.  As the father of two young female attorneys, we noted with sadness the recent passing of Supreme Court Justice Ruth Bader Ginsburg.  She was an icon who cleared the high hurdles for women entering the legal profession, and who worked as an advocate for women’s rights both on and off the court.  She served as a role model and inspiration to many female attorneys, including two in my family.

Today’s case is part of a long line of proposed consumer class actions in which the ingredient lists and labels are perused for strained readings and interpretations lacking in common sense. Plaintiff brought a proposed class action alleging that defendant’s branding and advertising of its  “EverSleek Keratin Caring” products was false and misleading.  Devane v. L’Oreal USA, Inc., No. 19 CIV. 4362 (GBD), 2020 WL 5518484, at *1 (S.D.N.Y. Sept. 14, 2020). Plaintiff alleged that she and similarly situated putative class members suffered economic injuries when they purchased the products believing they contain Keratin.  Plaintiff alleged that she suddenly realized the products do not contain Keratin, which is a “a protein naturally present in human hair, skin and nails.”
Defendant moved to dismiss plaintiff’s amended complaint for failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). In addition to meeting the requirements of Rule 12(b)(6), a plaintiff alleging fraud or asserting a claim premised on an allegation of fraud must also satisfy the heightened pleading standard of Federal Rule of Civil Procedure 9(b), which requires such a party to “state with particularity the circumstances constituting fraud.” Fed. R. Civ. P. 9(b). To meet this standard, in the Second Circuit, “a complaint must ‘(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.’ ” Wood ex rel. U.S. v. Applied Research Assocs., Inc., 328 Fed. Appx. 744, 747 (2d Cir. 2009).
Defendant’s main point was that it is unreasonable for anyone to assume that the products themselves contain keratin, as they are Keratin Caring products and specifically state that the products “car[e] for the essential protein and keratin that is found in hair.”
Instead of just relying on the parties’ assessment of the labels, why shouldn’t the court take a look for itself?  And indeed, both parties submitted images of the shampoo and conditioner bottles. The fronts of the bottles read, in relevant part, “Keratin Caring” and “100% Vegan.” The backs of the bottles include actual ingredient lists—which did not include keratin. Moreover, the backs of the labels again indicated that the Products are “Vegan,” and further that they include “[n]o animal derived ingredients or by-products.”  The labels also described the function of the Products, that they “gently cleanse[ ] chemically straightened hair while caring for the essential protein and keratin that is found in the hair.” Id.
The court analyzed whether a practice is deceptive or misleading through the “reasonable consumer” standard, i.e., by analyzing whether the practice would be “likely to mislead a reasonable consumer acting reasonably under the circumstances.”  Cohen v. JP Morgan Chase & Co., 498 F.3d 111, 126 (2d Cir. 2007). Under this standard, Plaintiff must credibly allege that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.  How could that be, given the labels? Both the front and back of the Products’ labels specifically say that the products are vegan. They thus cannot contain keratin, a human chemical. Then, none of the ingredients listed on either bottle includes keratin as an ingredient. It is not reasonable to assume that a product contains a certain ingredient when it is not listed in the ingredient list.
Finally, the products’ description itself stated, “EverSleek Keratin Caring system with sunflower oil, gently cleanses chemically straightened hair while caring for the essential protein and keratin that is found in hair.” Id. at *5.  Thus, as labeled, each product is  keratin caring, which is reasonably understood to mean that it cares for the keratin already found in the hair. Plaintiff thus did not meet the burden of demonstrating that a reasonable consumer could find that the Products claim to contain keratin. Let alone plead the fraud-based claims with any particularity.  Motion granted.
It is a little surprising, but there continue to be cases in which plaintiffs allege a product was defective, litigate for a long time, but do not produce an expert opinion to that effect.  If the product is at all complex, a jury should not be permitted to guess that the product was defective just because someone used it and now alleges an injury from that use.
In Marshall v. Zimmer, Inc., No. CV 18-3363, 2020 WL 5408209, at *1 (E.D. Pa. Sept. 9, 2020), plaintiffs alleged that the Defendants were responsible for complications suffered after a knee replacement surgery. Plaintiffs asserted that the knee replacement system manufactured and sold by Zimmer was implanted in Mr. Marshall’s left leg, and was defective, and thus caused Mr. Marshall’s  injuries. Defendant moved for summary judgement when, after many extensions, plaintiffs were unable to find an expert to support their claims.
The court granted the motion, noting the standard rule that “expert testimony is needed where the subject is beyond the purview of the ordinary lay jury’s experience and knowledge.”  It is worth noting that all of plaintiffs’ remaining claims, alleging defects in design, manufacturing, and failure to warn, and also asserting breach of implied warranties, failed for the absence of an expert opinion. And also the derivative loss of consortium claim on behalf of Mrs. Marshall.

The Fifth Circuit affirmed summary judgment in favor of a chemical company in a toxic tort case in which plaintiff alleged the defendant engaged in a civil conspiracy to sell a component of mustard gas. Adams v. Alcolac Inc., 974 F.3d 540, 542 (5th Cir. 2020), as revised (Sept. 25, 2020).

Plaintiffs were primarily former U.S. military personnel who alleged they were injured by Saddam Hussein’s use of mustard gas during the Gulf War. The plaintiffs sought to hold Alcolac, Inc. liable for these injuries because, they alleged, it illegally provided the government of Iraq with thiodiglycol, which is used to make ink and other products, but allegedly was then used here to create mustard gas.

After many years of prior proceedings, the remaining tort claim was for civil conspiracy.  Under applicable Texas law, a civil conspiracy requires:

(1) a combination of two or more persons; (2) the persons seek to accomplish an object or course of action; (3) the persons reach a meeting of the minds on the object or course of action; (4) one or more unlawful, overt acts are taken in pursuance of the object or course of action; and (5) damages occur as a proximate result.
First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 222 (Tex. 2017)  But civil conspiracy is not an independent tort, so “the agreement itself” does not alone create a cause of action. Rather, a plaintiff must demonstrate that he has been injured by some act done pursuant to the common purpose of the conspiracy. In other words, damages proximately caused by the conspiracy itself are not enough; the plaintiff must show some tortious act committed by a co-conspirator pursuant to the conspiracy. But here, the statute that made the alleged sale illegal did not create a tort and did not provide a private right of action.
The court also affirmed rejection of plaintiffs’ statutory allegation that Alcolac had violated the Justice Against Sponsors of Terrorism Act, which provides that “No action shall be maintained … for injury or loss by reason of an act of war.” Plaintiffs had to admit that their mustard-gas injuries occurred during the Gulf War, a military conflict between the United States, its allies, and Iraq.  So they tried an end-run, arguing that Iraq’s use of mustard gas could not be an act of war because it grossly violated the basic norms and rules established by the laws of war.  The 5th Circuit concluded that this argument is far removed from the statute’s plain text, which contains no suggestion that the act-of-war exception applies only to acts of war that conform to international law. See Stutts v. De Dietrich Grp., No. 03-CV-4058, 2006 WL 1867060, at *4 (E.D.N.Y. June 30, 2006) (concluding that the act-of-war exception applied to use of chemical weapons on U.S. troops during Gulf War). Accordingly, the JASTA claim was foreclosed because the plaintiffs’ injuries occurred “by reason of an act of war.”

 

In Rochkind v. Stevenson, 2020 WL 5085877 (Md. Aug. 28, 2020), the Maryland Court of Appeals (that is the state’s highest court), recently adopted the Daubert standard for assessing the reliability of proffered expert opinion evidence.  This is the test used in federal courts and most other states, but not all.  The court’s move away from the Frye test reflected a “jurisprudential drift” over the past 40 or so years towards more careful scrutiny of expert evidence in an effort to prevent unreliable science from entering into a trial. 471 Md. 1, 5, 236 A.3d 630, 633..

The case involved the claim that plaintiff’s Attention Deficit Hyperactivity Disorder (ADHD) had been caused by her childhood exposure to lead. She sued the landlord of the apartment where she had lived, and sought to rule out other risk factors, such as a family history of learning disabilities, through expert testimony. The landlord challenged the reliability of the proposed expert’s causation methodology and conclusions. Continue Reading Maryland Adopts Daubert Test

We all know that the pandemic has impacted a number of aspects of litigation, especially trials, but what is going on with filings.  In federal court, trial courts saw about 30% more pending cases as of June 30 than at the same time last year.  The increase comes mostly from personal injury and product liability cases, according to the recent statistics from the Administrative Office of the U.S. Courts.

Continue Reading Report on Federal Caseload and Trials