The California Supreme Court Addresses the Admissibility of Industry Custom and Practice Evidence In a Design Defect Case and Holds That … It Depends

In Kim v. Toyota Motor Corp., No. S232754 (August 27, 2018) the California Supreme Court broke with 40+ years of intermediate court of appeal precedents barring manufacturers from using evidence of their compliance with industry custom and practice to prove their design was not defective.  Rather, the Court held, such evidence is no longer categorically inadmissible, but neither is it categorically admissible.  Admissibility depends on the nature of the evidence and the purpose for which it is offered.

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Seventh Circuit Finds Preemption in Reversing Generic Paxil Verdict Against GSK, But Passes on Deciding Innovator Liability Issues

In a much-anticipated ruling on the appeal of a $3 million verdict against GlaxoSmithKline (GSK) in a wrongful death case involving the Paxil generic, paroxetine, the U.S. Court of Appeals for the Seventh Circuit reversed on Wednesday and held that the plaintiff’s claims were preempted under Wyeth v. Levine, 555 U.S. 555 (2009). Dolin v. GlaxoSmithKline LLC, No. 17-3030, slip op. at 25 (7th Cir. August 22, 2018). The appellate court’s decision was also notable in that the court ruled on the preemption issues without addressing whether Illinois law would permit a claim of “innovator liability” against brand manufacturer GSK when the plaintiff had only taken generic paroxetine manufactured by a different company. Id.

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Uncertain Expectations – California’s Long Struggle with How to Measure Defectiveness in a Product’s Design (Part 3)

Recap:  Part 1 (here) discussed the background of the consumer expectations test (CET) and part 2 (here) described the California Supreme Court’s seemingly definitive decision in Soule v. General Motors Corp., 8 Cal.4th 548 (1994) explaining the types of cases where CET can be applied.
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New Jersey Reverses Course on Bare Metals Defense

The New Jersey Appellate Division recently published an opinion significantly affecting asbestos litigation and defenses available to certain product manufacturers. In Whelan v. Armstrong International Inc., No. A-3520-13T4 (Aug. 6, 2018) the court changed the landscape related to the “bare metal defense,” breaking from prior law regarding the scope of a manufacturer’s liability for injuries caused by exposure to asbestos-containing components or replacement parts in their products supplied by third parties.

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NJ Top Court Gives Exclusion of Plaintiffs’ Experts Stamp of Approval

Today, the New Jersey Supreme Court reconciled New Jersey’s framework for analyzing the reliability of expert testimony under N.J.R.E. 702 and the federal standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc. The court incorporated the Daubert factors into New Jersey’s framework for civil cases, while simultaneously holding that the trial court appropriately played its gatekeeping role in excluding plaintiffs’ expert testimony regarding certain epidemiological studies.

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