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Sean P. Wajert is a partner at Shook, Hardy & Bacon LLP, and the Managing Partner of Shook's Philadelphia office.  He concentrates his complex litigation practice on the defense of companies from a variety of industries, including the chemical, consumer product, drug and medical device industries.  His practice focuses on complex commercial litigation, mass tort, toxic tort and product liability litigation, and appellate work. For a decade he served as Chair of the Products Liability Group of his prior firm.  Sean also taught complex litigation issues for ten years as a Lecturer-in-Law at the University of Pennsylvania Law School.

Vanilla in common parlance denotes, well, common.  And indeed, vanilla is one of the most common ingredients in food, whether as a primary flavor or a component of another flavor. But for centuries it was rare, a delicacy for the rich.  And even after new fertilization methods greatly expanded output, demand exceeded supply.  So, as

In the class action context, the named plaintiffs as class representatives must allege and show that they personally have been injured, not just that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.  If the named plaintiff cannot establish Article III standing, she may not seek relief on behalf of herself or any other class member, and it will lead to dismissal of the action for lack of subject matter jurisdiction. As the 11th Circuit recently noted, see Muransky v. Godiva Chocolatier, Inc., — F.3d —- , No. 16-16486 & 16-16783, 2020 WL 6305084 (11th Cir. October 28, 2020), the question whether pleading merely that a statutory requirement was violated is enough to establish standing, even when the plaintiff suffered no injury from the alleged violation, was a question that had bedeviled litigants, scholars, and lower courts.  At least, up until Spokeo Inc. v. Robins, 136 S. Ct. 1540, 194 L.Ed.2d 635 (2016), in which the Court explained that a party does not have standing to sue when it pleads only the bare violation of a statute.

FYI, defendant Godiva began as a family business nearly 100 years ago in Brussels, and yes, was named after the legend of Lady Godiva and the associated values of boldness, generosity, and a pioneering spirit.  Like StarWars, this legend started over a tax protest.  Anyway, in 1968, Godiva was appointed official chocolatier to the Royal Court of Belgium. Great stuff.

Article III standing consists of three elements:  an injury in fact, that is fairly traceable to the challenged conduct of the defendant, and that is likely to be redressed by a favorable judicial decision.  These elements are an indispensable part of the plaintiff’s case.

In Muransky, plaintiff had pleaded the case as a pure statutory violation of the the Fair and Accurate Credit ‎Transactions Act (“FACTA”). He alleged that Godiva chocolate stores had printed too many credit card digits on hundreds of thousands of receipts over the course of several years, and pointed out that those extra numbers were prohibited under a federal law apparently aimed at preventing identity theft. His complaint disclaimed any recovery for actual damages.
Continue Reading Court of Appeals Decides Important Standing Issue

“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

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

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

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.

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

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