For our readers interested in issues surrounding expert testimony, Daubert challenges, and potential reform of Federal Rule of Evidence 702, let us point out a recent piece by ILR, entitled Fact or Fiction: Ensuring The Integrity Of Expert Testimony. The paper outlines the state of expert evidence standards around the country, explores key issues and concerns supporting a more universal adoption of Daubert and further amendment of Rule 702, and offers recommendations for promoting…

A number of interested groups have weighed in as amici in the Supreme Court’s consideration of TransUnion LLC, Petitioner v. Sergio L. Ramirez, No. 20-297 (U.S.), on review from the Ninth Circuit.  See 951 F.3d 1008 (9th Cir. 2020) .  The issue is the lower court’s attempt, in the face of Article III case law and Federal Rule of Civil Procedure 23, to certify and maintain a damages class action when the vast majority of…

Massachusetts’ highest court issued an  interesting decision regarding pleading requirements and the causation element in a device case  See Dunn v. Genzyme Corp., No. SJC-12904 (Sup. Jud. Ct. Mass. 1/29/21). Plaintiff Dunn received two injections of Synvisc-One, one in each knee. Synvisc-One is a Class III medical device subject to premarket approval under the MDA.  Synvisc-One was approved by the FDA in 2009 for the treatment of pain associated with osteoarthritis of the knee…

A California federal court dismissed a complaint alleging that a company misled  consumers concerning the properties of its Splash-Less bleach cleaner.  See Gudgel v. The Clorox Co., No.  4:20-cv-05712 (N.D. Calif. 1/21/21 ). Plaintiff filed this suit on behalf of herself and a putative class, asserting five causes of action against Clorox: (1) violation of the California Consumers Legal Remedies Act (“CLRA”) § 1750; (2) violation of California Unfair Competition Law (“UCL”), Cal. Bus. &…

A New York federal court has rejected yet another “vanilla” complaint.  In Cosgrove v. Blue Diamond Growers, No. 1:19-cv-08993 (S.D. N.Y. 12/17/20), the court dismissed a proposed class action alleging that the defendant improperly labelled its vanilla almond milk product finding that the company did not mislead consumers with the product’s vanilla flavor label. Plaintiffs contend the almond milk labeling was misleading because “it has less vanilla than the label represents, contains non-vanilla flavors which…

Ever since the In Re NuvaRing Prods. Liab. Litig. MDL, more than a decade ago, we have had concerns about the use of master pleadings in MDLs.  On one hand, the requirement to file a master complaint, and answer, seems to offer some efficiency gains and ease the administrative burden on transferee courts.  On the other hand, if not handled properly, such procedures risk depriving defendants of their due process rights and rendering Federal Rules…

A Minnesota federal court has dismissed a proposed class action alleging household sealants turn yellow despite being advertised as “crystal clear.” Ehlis v. DAP Prod., Inc., No. 20-CV-1872 (PJS/ECW), 2021 WL 83269, at *1 (D. Minn. Jan. 11, 2021). This putative nationwide class brought a host of fraud and warranty claims against DAP, some under Maryland law, and others under Minnesota law. Defendant then moved to dismiss the complaint.  To survive a motion to dismiss, a complaint must “state a…