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Product Liability & Mass Torts Digest

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93 results

May 8, 2025

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4 min read

EDNY Allows Expert’s Use of ChatGPT to Confirm Alternative Design in Product Liability Lawsuit

The U.S. District Court for the Eastern District of New York recently allowed an expert’s use of ChatGPT to confirm a proposed alternative design in a product liability lawsuit, denying the defendant’s motion to exclude the expert testimony for failing the reliability requirement of Federal Rule of Evidence (FRE) 702.

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May 2, 2025

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8 min read

Song–Beverly Act Reforms – Rebalancing Consumer Rights and OEM Responsibilities?

Since the 1970s, the Song–Beverly Consumer Warranty Act has protected buyers of potentially defective vehicles. The latest update, Assembly Bill 1755, aims to curb excessive lemon law litigation and speed up resolutions—but faced pushback from both consumer advocates and automakers, prompting a follow-up measure: Senate Bill 26. 

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April 23, 2025

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5 min read

Supreme Court Opens Door to Civil RICO Claims Arising from Personal Injury

The Supreme Court just opened the doors to civil RICO suits against defendants alleged to have caused personal injury. This ruling could have major implications for product manufacturers and sellers, which may now face RICO claims—and treble damages—alongside traditional state-law claims in product-liability cases.

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April 3, 2025

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5 min read

Supreme Court Has a Chance to (Re-)Clarify Albrecht Impossibility Preemption Test

A cert petition filed in March in the long-running In re Fosamax (Alendronate Sodium) Products Liability Litigation gives the Supreme Court a chance to clarify—for the second time—the Third Circuit’s restrictive application of the impossibility preemption defense.

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March 27, 2025

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3 min read

A Natural Solution: Court Dumps Microplastic Suit for Lack of Scientific Evidence

The U.S. District Court for the Northern District of Illinois recently dismissed a putative class action complaint alleging the term “natural” on Fiji Water bottle labels is false and misleading due to alleged microplastics contained in the water, because the plaintiffs failed to provide specific evidence to plausibly establish such contamination.

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March 26, 2025

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4 min read

You Are What You Say You Are: Ruling Emphasizes Product Representations Mean What They “Actually Say”

In a February 20, 2025 order, the District Court for the Northern District of California partially granted a motion to dismiss product liability claims based on theories that the descriptions of baby and infant bottles and cups as “BPA Free” were an affirmative misrepresentation. Miller v. Philips N. Am. LLC, Civil No. 3:24-CV-03781-RFL (N.D. Cal. 20 Feb. 2025).

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March 17, 2025

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4 min read

BioZorb and the Power of Causation: Why Warnings Don’t Always Matter

In the ongoing litigation involving the BioZorb device, the U.S. District Court for the District of Massachusetts recently ruled on defendant-manufacturer Hologic’s motion for summary judgment in the case of In re BioZorb Device Products Liability Litigation, No. 22-cv-11895-ADB, 2025 WL 509834, at *4 (D. Mass. Feb. 12, 2025). 

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March 5, 2025

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3 min read

The Fall of a Faulty Expert: Lessons from Monte v. Sherwin-Williams

In a negligence and failure to warn case, a Florida district court granted the defendant Sherwin-Williams’s motion to exclude the testimony of the plaintiff’s expert after determining that his causation opinion was unreliable under Daubert. Monte v. Sherwin-Williams Dev. Corp., 2025 WL 90123 (M.D. Fla. Jan. 14, 2025).

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February 24, 2025

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2 min read

A New Intermediary: Artificial Intelligence and the Learned Intermediary Doctrine

Artificial intelligence (AI) is an emerging tool in healthcare settings, altering the relationships between drug manufacturers, physicians, and patients.

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February 21, 2025

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2 min read

The “Master of the Complaint”: The Supreme Court Gives Plaintiffs a New Avenue to Avoid Federal Court

A recent Supreme Court decision strengthened plaintiffs’ ability to control whether their case will be litigated in state or federal court.

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January 6, 2025

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4 min read

Dozens of Amicus Filers in TDF Litigation Urge California Supreme Court Not to Uphold “Duty to Innovate”

Amicus filings joined by more than 70 diverse entities ranging from manufacturers to patient advocacy groups highlight widespread concern that California courts will adopt an expansive new theory of liability based on a “duty to innovate” that filers say will upend existing products liability law, disincentivize innovation, increase drug prices, and harm patients.

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December 11, 2024

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2 min read

Water Bottle Manufacturer Springs Ahead in Microplastics Challenge

On November 5, 2024, Danone Waters of America, LLC (Danone) achieved a notable legal victory, securing the dismissal of a putative class action alleging violations of Illinois and California consumer fraud statutes. The plaintiffs contended that Danone’s labeling of Evian bottled spring water as “natural” was deceptive due to the alleged presence of microplastics. The United States District Court for the Northern District of Illinois granted Danone’s motion to dismiss, finding the claims preempted by federal law.

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November 26, 2024

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5 min read

Combating Reptilian Tactics

“Reptile theory” is a litigation tactic used by plaintiffs’ lawyers to appeal to a jury’s survival instincts by casting defendants as threats to community safety. Popularized by Don C. Keenan and David Ball in their book, Reptile: The 2009 Manual of the Plaintiff’s Revolution, it builds on the “triune brain” neuroscience theory, which posits that the human brain is made up of three regions of increasing evolutionary complexity.

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November 21, 2024

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6 min read

Proximate Cause with Teeth: Recent Case-Dispositive Expert Exclusions in Product Liability Cases

Under both strict product liability and negligence theories, plaintiffs must establish proximate causation where there is a reasonable certainty that the defendant’s acts caused the injury. Several recent cases have emphasized the Daubert requirement that expert testimony supporting proximate cause for product liability claims must be non-speculative and backed by reliable, reproducible, scientific methodologies.

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October 28, 2024

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4 min read

Third-Party Litigation Financing Under the Spotlight: Judicial Conference Subcommittee Formed to Explore Disclosure Rules

Third-party litigation financing is a significant issue in the U.S. legal system, with its use playing an increasingly important role in litigation. Whether a party should be, or is, required to disclose litigation funding from a third party, and the terms of that funding, has been the subject of heated debate for some time.

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October 25, 2024

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3 min read

Faulty Triggers or Faulty Testimony? Court Rejects Unreliable Experts in Design Defect Case

In Colwell, the plaintiff was injured when a Sig Sauer P320 handgun allegedly discharged unintentionally into his thigh.  The P320 “functions as a single-action pistol,” and while it has internal safeties “designed to prevent inadvertent discharges,” it lacks external safeties, such as a manual thumb safety or tabbed trigger safety.

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October 7, 2024

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10 min read

Trio of Tylenol Product-Liability Opinions Exemplifies Effective Judicial Gatekeeping

A series of recent opinions by Judge Denise Cote of the U.S. District Court for the Southern District of New York exemplifies the effective judicial gatekeeping contemplated by Federal Rule of Evidence 702 and Daubert v. Merrel Dow Pharmaceuticals. In In re Acetaminophen – ASD-ADHD Products Liability Litigation, Judge Cote repeatedly excluded the plaintiffs’ general causation experts even though each was “eminently qualified” because they did not reliably apply their methodologies. 

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September 18, 2024

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3 min read

Microplastics Policy: Is Federal Preemption a Viable Defense?

There are myriad examples of lawsuits ensuing after a regulatory body or other agency issues a statement or report on a particular substance. As things currently stand, however, statements by the U.S. Food and Drug Administration (FDA) may offer a defense to claims involving microplastics.  

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August 7, 2024

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9 min read

Deep Learning Meets Deep Pockets: Artificial Intelligence’s Impact on Litigation Financing

After several decades as a curiosity among computer programmers and science fiction fans, artificial intelligence (AI) is igniting the global economy.  Among those enchanted by its seemingly limitless modern applications is the litigation finance industry—an unfortunate product of skyrocketing large-scale litigation costs following the ESI (Electronically Stored Information) Revolution, where third parties invest in litigation for a chance to share in equally inflated judgments and settlements.  

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July 2, 2024

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6 min read

New Theory for Establishing Causation Under California’s Learned Intermediary Doctrine (Himes v. Somatics)

The California Supreme Court has recognized a new path for plaintiffs to prove causation in failure-to-warn cases against manufacturers of prescription drugs and medical devices. Under the learned intermediary doctrine, such manufacturers have a duty to warn physicians of the risks associated with their products but do not have a duty to warn patients.

...Read more
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About This Blog

Winston & Strawn’s Product Liability & Mass Torts Digest provides updates, insights, and practical tips on a full spectrum of issues related to product liability and mass torts litigation.

Contributors

George Lombardi

Partner

Sandra Edwards

Partner

Matthew Saxon

Partner

Rand Brothers

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