After more than five years of uncertainty, the Florida Supreme Court’s opinion in DeLisle v. Crane finally settled the debate over the standard for determining the admissibility of expert witness testimony in Florida state courts. Case No. SC16-2182 (Fla. Oct. 15, 2018). In a narrow 4-3 decision, the court rejected Daubert and adopted Frye. The outcome should come as no surprise. In 2017, in a rarely exercised move, the Florida Supreme Court declined to adopt the legislature’s 2013 revisions to the Florida Evidence Code codifying Daubert.

Continue Reading Frye Is Now, and Once Again, the Standard for Expert Opinion Admissibility in Florida

The discovery phase in your products liability lawsuit has been completed and it’s time to decide the next course of action before proceeding to trial. One possibility, of course, is to move for summary judgment to knock out the entire case pending against your client. However, you have concluded that, despite the strengths of your case, there are enough “issues of fact” to make the exercise probably useless.

Have you considered instead a Motion for Partial Summary Judgment? Perhaps you should.

The first step is to determine whether your jurisdiction permits motions for partial summary judgment to be filed. Rule 56 of The Federal Rules of Civil Procedure specifically calls for “Partial” summary judgments in its very title. In my home state, New York’s CPLR 3212(e) reads, “In any other action summary judgment may be granted as to one or more causes of action, or part thereof, in favor of any one or more parties, to the extent warranted, on such terms as may be just.” Thus, there is little doubt that under the right reading of the law and facts, a partial summary judgment might be allowed. Continue Reading The Motion for Partial Summary Judgment: The Litigator’s Often Forgotten Tool

One of the items an insurance adjuster will look at when valuing a product liability claim is to see how much the plaintiff incurred in medical expenses and medical bills after the accident. Naturally, if the injuries sustained by the plaintiff are truly “serious,” it is reasonable to expect that there will be a sizeable claim for reimbursement for the plaintiff’s medical expenses. Plaintiffs’ attorneys are aware of this and as a result will typically try to inflate the figure that represents the plaintiff’s past medical expenses. An experienced plaintiffs’ attorney recognizes that the defendant’s insurance carrier may value their client’s claim based in part on the amount of the plaintiff’s incurred medical expenses, and, as such, they want to make that figure as large as possible to maximize their client’s potential settlement or recovery at trial.

Continue Reading Recovery for Medical Expenses When a Plaintiff with Medical Insurance Opts to Treat on a Lien Basis

The Evolution of Innovator Liability for Pharmaceutical Manufacturers
Brand-name drug manufacturers are not unfamiliar with the concept of Innovator Liability, under which they can be held liable for injuries caused by a product they did not make. In other words, Innovator Liability holds a manufacturer liable by virtue of being an innovator.

Innovator Liability, usually brought under a failure to warn theory, can be traced back to a 2008 California case, Conte v. Wyeth, Inc., where the Court of Appeal held that a branded drug manufacturer’s duty to warn extends to patients taking the generic counterpart. The court reasoned that it is foreseeable that physicians and pharmacists may rely on the brand drug’s label to prescribe the drug’s generic counterpart for patients.[i] Conte has been rebuffed nationwide. By July 2014, more than 100 courts in 49 states, including the U.S. Courts of Appeals for six different circuits, rejected Innovator Liability.[ii] The Supreme Court of Iowa described Innovator Liability as “deep-pocket jurisprudence [which] is law without principle.”[iii]

Continue Reading Never-Ending Liability Under Novartis

Recently, there have been several food warnings and recalls based on confirmed or suspected Listeria contamination. Some recent culprits have been smoked salmon, turnip sticks, pre-made sandwiches, ice cream bars, cream cheese, green beans, and frozen meatballs. Fresh, raw, and unpasteurized products are especially susceptible to Listeria contamination. Continue Reading Listeria Hysteria