Author Archives: Jay Butchko
Package Insert Does Not Establish Standard of Medical Care
The Standard of Medical Care is an important legal doctrine that can make or break the defense for a medical malpractice lawsuit. In Texas, the standard of medical care is generally considered the duty owed to a patient by a medical professional. The standard, or duty, will vary based on multiple factors, including the… Read More »
Defeating a Mass Tort MDL Case by Case
A rarely spoken truth about mass tort lawsuits consolidated into multi-district litigation (MDL) is that many of the plaintiffs’ lawyers filing these suits actually do very little on their cases. The strategy is simple – a select group of plaintiffs’ attorneys are chosen to run the litigation. The remainder – which could be hundreds… Read More »
Dispelling Some Common Myths in Hip Implant Litigation
When some plaintiffs file product liability lawsuits alleging harm from a defective hip implant, they make two arguments that are specious at best: first, that the hip implant device is defective the moment it fails; and second, causation can be established for a failure-to-warn claim by asserting that the plaintiff would not have agreed… Read More »
Talcum Powder – The Next Mass Tort?
Manufacturers and sellers of products containing talc (most notably Johnson & Johnson) have been deluged with lawsuits claiming that talc powder exposure allegedly caused ovarian cancer. Nearly two thousand lawsuits have been filed and a few of those suits have actually gone to trial. Some people are speculating that talc in baby powder products… Read More »
Plaintiff’s Attempt to Rebut Presumption of Adequate Prescription Drug Warning Fails
The Texas legislature enacted Civil Practice & Remedies Code §82.007 which establishes a presumption in tort cases alleging harm from a prescription drug that a drug’s warning is adequate if approved by the Food and Drug Administration (FDA). This gives prescription drug manufacturers a necessary shield against a cavalcade of lawsuits alleging side effects… Read More »
Time to Reform Multi-District Litigation
More than half of all lawsuits pending in federal courts across the country are docketed as multi-district litigations (“MDLs”). The concept of MDLs were created by Congress and became codified in 28 U.S.C.A. §1407. Sub-section (a) of this statute states that “when civil actions involving one or more common questions of fact are pending… Read More »
Check Your Ego at the Door – How Courts Can Haul Corporations into Court on Alter Ego Jurisdiction
Your company is based in Brownsville, Texas. It has done business primarily in Texas for decades. Nevertheless, your company owns a small subsidiary in Nevada that oversees different tasks largely unrelated to the core business in Texas. However, you discover suit has been filed against the Texas corporation – in Nevada. How is that… Read More »
Self-Driving Automobiles and Liability
Traditionally, in automobile insurance defense litigation, there is a plaintiff alleging harm from a collision involving another driver who was allegedly operating their vehicle negligently. That driver’s automobile insurance policy is exposed to paying out a damage award to the plaintiff. But what if there is no negligent driver? What if the plaintiff was… Read More »
Purchasing Assets from a Third Party Manufacturer – Legal Issues You Need to Be Aware Of
It is a common practice in the business world – a company purchases the assets of a third party manufacturer, or sub-contracts the manufacture of its product to a third party company. Making such deals are likely good for business, but also raise a myriad of legal issues that need to be addressed including… Read More »
Non-Reporting Employee Experts and the Attorney-Client Privilege
A bedrock legal principle is the attorney–client privilege. This privilege, found in Texas Rule of Evidence 503 and Federal Rule of Evidence 501, allows a lawyer and their client to have candid, frank discussions about their case and sensitive legal issues. If a lawyer and their client cannot openly talk to each other, the… Read More »