Author Archives: Jay Butchko
Understanding the Learned Intermediary Doctrine
A number of plaintiff’s lawsuits against drug manufacturers allege that the plaintiff failed to receive an adequate warning about a prescription drug’s side effects. As a result, the plaintiff allegedly suffered harm and seeks monetary damages from the manufacturer claiming a breach of the duty to warn. Defense counsel for the drug manufacturer can,… Read More »
Advance Payments in Personal Injury Cases Must Be Credited
In some personal injury cases, it may make sense for an insurance company to issue an advance payment to the plaintiff. This may be appropriate in cases where liability is not in dispute and the main issue at trial is the amount of damages. However, there is a downside to advance payments that expose… Read More »
Mirena IUD Litigation Prime Example of Taking on Alleged Causation Experts
There has been a bevy of litigation surrounding Mirena IUDs, a popular birth control device used by women across the country. A lawsuit was filed against the manufacturer alleging that the device caused idiopathic intracranial hypertension (“IIH”), which is a brain disorder resulting from increased pressure in the brain and central nervous system. Scant… Read More »
Banning Cell Phone Use by Commercial Truck Operators – Sound Policy or Over-Reaction?
Many companies in the trucking industry are debating whether to implement an outright ban of cellphone use by their truck operators while they are behind the wheel driving on busy roads and highways. What spurred this discussion? The liability exposure of trucking companies that have lax cell phone policies for their drivers. A prime… Read More »
Fifth Circuit Court of Appeals Recognized Product Development Protocol Preemption
In 2008, the U.S. Supreme Court entered a landmark decision in the field of product liability law. The case, Riegel v. Medtronic, Inc., 552 U.S. 312 (2008), established that product liability lawsuits filed under state law are preempted by the federal Medical Device Amendments of 1976 (MDA). The MDA created a “premarket approval” process… Read More »
Class Certification Run Amuck
The concept of class action lawsuits was based on noble intentions – allowing a group of similarly aggrieved claimants to take legal action against the same defendants in a single case. This was meant to improve the efficiency of the civil justice system by having a single class action lawsuit, as opposed to potentially… Read More »
Alternative Design in Product Liability Claims
If a plaintiff alleges a consumer product harmed them, they have to clear some legal hurdles to prevail in a product liability lawsuit. In Texas, when a plaintiff alleges a product harmed them due to a defective design, they must prove that the product, as designed, was unsafe and: A less dangerous alternative design… Read More »
Settlement Offers Do Not Moot Class Action Lawsuits
In Campbell-Ewald Co. v. Gomez, the U.S. Supreme Court addressed the issue of whether an offer of judgment under Federal Rule of Civil Procedure 68 made to a lead plaintiff in a class action lawsuit, in addition to a separate free-standing settlement offer in the same amount, renders a class action lawsuit moot. The… Read More »
Label Liability? How Food Labels are a Growing Source of Litigation
Litigation surrounding the accuracy of food labels has grown exponentially over the years. Numerous potential class action lawsuits have been filed by “consumer advocate” groups alleging that products were improperly labeled and violated U.S. Food and Drug Administration (FDA) labeling requirements, according to the Chicago Tribune. Below is a list of some of the… Read More »
Lax Cybersecurity Protocols Can Cost Your Company Millions
The U.S. Department of Health and Human Services (HHS) hit the Children’s Medical Center of Dallas with a non-appealable $3.2 million fine based on alleged breaches of HIPAA-protected patient and personnel information, according to Healthcare Informatics. HHS determined that there were at least three substantial breaches of electronic protected health information (ePHI) related to… Read More »