“Bellwether” cases are an important case management tool in many MDL proceedings, which typically include numerous individual claims. A bellwether is the sheep that leads the flock, and in an MDL, these lead “test” cases may shed important light on how a jury will react to the parties’ themes, how credible and persuasive their experts are, and how the court views key legal issues.  This information can at times be as, if not more, important…

For the second time, a federal court has rejected a complaint against defendants on behalf of a putative class, alleging defendants misled consumers by selling apple juice and applesauce products with the representation “Natural” and/or “All Natural Ingredients.”  Plaintiffs asserted five causes of action, all revolving around the claim the products contained trace, legal amounts of a pesticide residue. The court granted a motion to dismiss, and since further amended complaints would be futile, it…

A recent Fifth Circuit case reminds us of the interplay, in a diversity setting, of federal and state law.  In Jordan v. Maxfield & Oberton Holdings, L.L.C., No. 19-60364, 2020 WL 5939296 (5th Cir. Oct. 7, 2020), the plaintiffs brought suit after their young child was injured after ingesting Buckyball magnets. After an eight-day trial, the jury returned a verdict for the defendant. Appeal ensued. Buckyball magnets were small neodymium magnets that can be manipulated…

Our long time readers know that medical monitoring is a frequent topic here, probably because as a young (younger?) lawyer we got an opportunity to help try a medical monitoring class action to defense jury verdict. In the years since then, several states have weighed in on the availability of medical monitoring, which refers to future medical testing of a plaintiff who has not suffered a manifest traditional physical injury, but who has been exposed…

A quick personal note.  As the father of two young female attorneys, we noted with sadness the recent passing of Supreme Court Justice Ruth Bader Ginsburg.  She was an icon who cleared the high hurdles for women entering the legal profession, and who worked as an advocate for women’s rights both on and off the court.  She served as a role model and inspiration to many female attorneys, including two in my family.…

Today’s case is part of a long line of proposed consumer class actions in which the ingredient lists and labels are perused for strained readings and interpretations lacking in common sense. Plaintiff brought a proposed class action alleging that defendant’s branding and advertising of its  “EverSleek Keratin Caring” products was false and misleading.  Devane v. L’Oreal USA, Inc., No. 19 CIV. 4362 (GBD), 2020 WL 5518484, at *1 (S.D.N.Y. Sept. 14, 2020). Plaintiff alleged that…

It is a little surprising, but there continue to be cases in which plaintiffs allege a product was defective, litigate for a long time, but do not produce an expert opinion to that effect.  If the product is at all complex, a jury should not be permitted to guess that the product was defective just because someone used it and now alleges an injury from that use. In Marshall v. Zimmer, Inc., No. CV 18-3363,…