There Are Two Sides to Every Product Label

As we have reported in our previous blog posts (“Beware the “Influencer”” and “The Price of Natural Cosmetics”), courts continue to wrestle with challenges to manufacturers’ claims that their products are “all natural.” Recently, California’s Central District Court added to the growing volume of decisions in this space. In Robinson v. Unilever United States, Inc., 2019 WL 2067941 (C.D. Cal. Mar. 25, 2019), the Court was tasked with resolving “100% natural” claims and “made with 100% natural” ingredients claims. The Robinson decision provides some insight into what types of “natural” claims may be permitted by trial courts and how they are reigning in consumer class actions.

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Authenticating Social Media Evidence at Trial

Social media is ubiquitous in our cyber-connected world. For many, the first thing a person does when they wake up, and the last thing that person does when they go to bed is read, post, or otherwise interact with platforms such as Facebook, Twitter, Instagram, LinkedIn, and the like. For litigants in a lawsuit the potential to unwittingly post something online that is not thought through or carefully composed can be a trap. Attorneys look at social media presence in their quest for evidence, and discovery requests for social media posts are commonplace in deposition notices, preservation requests, fact sheets, interrogatories, and requests to produce.

Social media is subject to Rules of Evidence principles, including relevancy, authenticity, hearsay, and the probative value of evidence in light of its potential for unfair prejudice. Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md. 2007). Of these, authentication at trial is thought to be the “greatest challenge.” Hon. Paul W. Grimm, et al., Authentication of Social Media Evidence, 36 Am. J. Trial Advoc. 433, 439 (2013). Authentication of social media evidence is more complicated than showing a witness a printout with an account name and photo alongside the commentary − and for good reason. As the Third Circuit has recognized, social media evidence presents special challenges because of “the great ease with which a social media account may be falsified or a legitimate account may be accessed by an impostor.” United States v. Browne, 834 F.3d 403 (3d. Cir. 2016).
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FDA Final Guidance Document “Risk Evaluation and Mitigation Strategies: Modifications and Revisions Guidance for Industry”

On July 9, 2019, the U.S. Food & Drug Administration (FDA) released the final guidance document “Risk Evaluation and Mitigation Strategies: Modifications and Revisions Guidance for Industry,” which provides information regarding “changes to approved risk evaluation and mitigation strategies (REMS),” the application process for proposed changes to REMS, and “how the FDA will process submissions.”

Not every pharmaceutical product approved by the FDA requires a REMS. “A REMS is a required risk management plan that uses tools beyond the prescribing information (the package insert) to ensure that the benefits of certain drugs outweigh their risks.” Following a REMS submission, an application holder might be inclined to submit proposed changes, or the FDA might require the submission of proposed changes. Application holders who find themselves in either position may turn to this final guidance document for direction.
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The Trend Toward MDLs in Products Cases

A review of multidistrict litigation (MDL) statistics confirms the increasing percentages of federal cases being consolidated into MDLs. According to the Judicial Panel on Multidistrict Litigation (JPML) website, as of June 2019, 202 MDLs were pending in 46 different federal districts, in 32 different states, before 160 different transferee judges. California boasts the largest number of MDLs, with 30. New York State is close behind with 26. The 141,721 cases included in these MDLs represent more than 50 percent of the federal civil docket. More than 30 percent (or 70 MDLs) of the pending MDLs are products liability cases, a significant increase from 16 percent in 2005. And, of the 70 MDLs, more than 50 are litigations involving pharmaceutical products and/or medical devices. These numbers highlight the increase in the frequency with which products liability cases are being coordinated in MDL proceedings.

The MDL statute enacted in 1968 allows for the transfer of cases “involving one or more common questions of fact … pending in different districts” to “any district for coordinated or consolidated pretrial proceedings.” 28 U.S.C. § 1407(a). After an MDL is established, later-filed cases involving the same questions of fact are seamlessly transferred to the MDL as tagalong cases. The efficiencies seen in MDL proceedings since 1968 have caused the MDL docket to grow dramatically. In the early years, the “caseload was relatively flat—in the late 1970s and throughout the 1980s, the Panel averaged only around 40 [consolidation] motions per year.” Emery G. Lee III et al., “Multidistrict Centralization: An Empirical Examination,” 12 Journal of Empirical Legal Studies,  211, 221 (2015). By the 1990s, the MDL caseload was growing rapidly. Today, the JPML reports that it considers more than 55 motions per year on average, and as of the end of 2018, MDLs accounted for 52 percent of all civil cases pending in federal court.
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Products in a New Dimension: Manufacturing Considerations for 3D-Printed Products

Since its advent more than 30 years ago, the 3D printing market has grown, and will continue to expand for a myriad of reasons, including sustainability and reduced energy consumption. As the process, including the applicable technology, becomes more cost-effective, its widespread use continues to increase across many industries, such as aerospace and defense, energy, architecture and construction, automotive, food/culinary, consumer products and health care.

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