Jump to Navigation | Jump to Content
American Bar Association


Pump the Brakes: Driverless Cars and Assignment of Fault

By Bojan Manojlovic

Is our current legal framework ready for the challenges of this new technology?


GMO Labeling and the SAFL Act—Current Status and What the Future May Hold

By Scott K.G. Kozak

The Safe and Accurate Food Labeling Act, as drafted, would expressly preempt laws such as Vermont's Act 120.


Squeezing the Market Share: Corporate False Labeling Actions in POM and Beyond

By Sarah B. Miller

Juries may be becoming increasingly skeptical of Lanham Act claims based on false labeling.


Rule 26 Damages Disclosures: Pitfalls, Sanctions, and Suggested Practices

By Peter G. Pappas

How to address each challenge and avoid sanctions.


Ascertainability Requirement Leads to Inconsistency and Uncertainty in Class Actions

By Edward Soto and Erica Rutner

Meaningful discovery strategies, particularly in light of shifting jurisprudence, are critical to capably address the requirement.


Pharma Industry Beware: Arrest of Pharma Executive Sends Strong Message

By Sam Felker

The DOJ has a new strategy for combating health care fraud: individual responsibility.


You're Only Human (Factored) as a Product Defender

By Jim O'Reilly

When preparing a misuse defense, product manufacturer defense attorneys should consider any human factors research conducted by the company.

Federal Preemption and "All Natural" Food and Beverage Cases

By Shagha Tousi

Discover the origin and future of the lawsuits against the defective Chinese product.

The Supreme Court's Clarification on the Scope of Personal Jurisdiction

By Evan P. Moltz

Although Daimler and Walden clarify when a court may assert general and specific jurisdiction, respectively, they also raise new questions, especially for lower courts.

Using Cottle Orders to Resolve Multiplaintiff Litigation in California Courts

By G. Gregg Webb and Edward Gaus

When contemplating use of a Cottle order, be sure the case is "complex," the timing is right, and the order doesn't conflict with an existing statute.

A View from the Inside: Practice Pointers from In-House Counsel

By Adrienne Gonzalez and Daniel Wittenberg, with Penelope Dixon

An in-house Wal-Mart attorney shares thoughts on changes to discovery rules, advice to young lawyers, and those considering the move in-house.

Compelling Discovery for Foreign Arbitrations

By J. Brittany Cross Carlson

"Foreign proceeding" requirement provides a potential defense to product manufacturers seeking to defeat discovery requests.

The Learned Intermediary Doctrine Gains Another Foothold in West Virginia

By Jennifer A. Foster

A medical device manufacturer has no direct duty to warn patients of the risks of its products, but what does this mean for pharmaceutical manufacturers?

The Evolution of Drywall Litigation

By Collette A. Brown and Ira J. Gonzalez

Discover the origin and future of the lawsuits against the defective Chinese product.

Liability Estimation for Pharma and Medical Device Products Liability

By Patrick J. McGrath and William Downs

Financial consultants provide a framework for creating robust estimations for companies facing litigation.

The Pathway to Primary Jurisdiction

By Bradley W. Pratt

Recent results in food and beverage consumer fraud class actions indicate why the doctrine had mixed results despite FDA interest.


Does a Sales Representative Owe a Duty to a Patient?

By Robyn Maguire

A look at a medical device sales representative's liability for negligent failure to warn.

A Surprising Win for the Learned Intermediary Doctrine in West Virginia

By Jennifer A. Foster

A medical device manufacturer has no direct duty to warn patients of the risks of its products.

FSMA: New Rules Mean New Risks for Food Industry Clients

By Sarah Brew and Rachael Dettmann Spiegel

Ensure your food industry clients are compliant with the Food Safety Modernization Act.

Proposed Changes to Proposition 65 Provide Limited Benefit to Business

By Elizabeth McNulty

Businesses selling into California may soon be subject to more stringent exposure warning requirements.

Can Products Liability Drill into Fracking?

By Prof. James T. O'Reilly

The industry is confident that not even products liability theories can shatter its defenses.


How to Correctly Approach Independent Medical Exams

By Heidi Oertle and Shawna Boothe

When a party's physical or mental condition is at issue, an independent medical examination may be ordered as a matter of right or upon a showing of good cause. Who may conduct the exam and whether the attorney may be present varies among the states.

Potential Liability Inherent in General Document Preservation Holds

By John Camp and L. Vanessa Lopez

General document preservation holds may impose a duty to preserve documents for unforeseen litigation, where that duty may not have otherwise existed.

The Need for a Statute of Repose in Autonomous Vehicle Liability

By Michael A. Preciado

Autonomous vehicles have driven off the pages of Hollywood scripts onto real streets. The law must likewise evolve to protect manufacturers and the public from drivers who carelessly fail to update their vehicle's software.

Is There a Duty to Warn Even the Most Sophisticated User?

By Monica Williams Monroe

The California Supreme Court is considering whether a raw materials supplier has a duty to warn the manufacturer and/or end user of the finished product when the manufacturer is a sophisticated user who already understands the risks.

Self-Critical Analysis Privilege: Does It Protect Manufacturers Seeking to Review and Improve Internal Practices and Procedures?

By Elisabeth M. McOmber

Whether a product manufacturer can protect its efforts to review and improve its internal practices and procedures under the self-critical analysis privilege depends on the law of the jurisdiction, the nature of the review, and the needs of the plaintiff.

Illinois Supreme Court's Decision May Effect Application of Forum Non Conveniens

By C. Matt Alva
An initial impression of the Fennell decision's impact on the national asbestos dockets in St. Clair and Madison Counties.

Comcast v. Behrend: Was It Really a Boon for Defense Attorneys?

By Jenny A. Mendelsohn
The Comcast decision may come to be seen as a hollow "victory."

A Primer for Food and Beverage Attorneys on Contamination and Recall Insurance

By Jonathan Cohen, Adrian Azer, and John Girgenti
A taste of the key issues companies—and their lawyers—should keep in mind when acquiring such policies.

Important Changes Proposed for CPSC Product Certification

By Charles E. Joern Jr.
The potential impact of the proposed rule has brought up numerous concerns for companies.

Medical Device Tracking: The FDA's New Unique Device Identification System

By Kara T. Stubbs and Wynn J. Maxwell
The FDA's new system for labeling and marking medical devices will be phased in over the next seven years.

Pro Bono Spotlight: Defending the Interests of Death Row Inmates

By Stephen E. Reynolds and Katie J. Marschke
Lori B. Leskin of Kaye Scholer LLP represents vulnerable defendants in post-conviction proceedings.

NHTSA Revs Up Campaign Against Distracted Driving

By Daniel Campbell and Ariel Applebaum-Bauch
The National Highway Traffic Safety Administration plans to issue guidelines aimed at curbing driver distraction from electronic devices.

Inside the Learned Intermediary Doctrine

By Chris A. Johnson, Alicia J. Donahue, and Paula Sarti
Exploring the exception for direct-to-consumer advertising.

Workers' Compensation Immunity for Companies with Separate Corporate Entities

By Michelle Molinaro Burke and Roy Alan Cohen
Strategies for avoiding potential exposure to civil lawsuits.

The FDA's 510(k) Approval Process in Medical-Device Litigation

By Troy Roberts
Considerations for manufacturers and legal practitioners.

The Case for Leaving the 510(k) Argument Out of a Pleading

By Prof. Jim O'Reilly
A counter perspective from a "vanishing breed"—one of the creators of the 1976 Medical Device Amendments.

No Crash Later?

By Sarah Murray
Maybe not as energy drink scrutiny heats up.

Discovery and Pharmaceutical Litigation: Know Your Client

By Matthew Jackson
Common characteristics of pharmaceutical companies and the current regulatory scheme for new drug development present unique challenges during discovery.

Reflections on Weeks

By Samuel L. Felker
The end of a winning streak for brand-name manufacturers or just a blip on the state-law tort screen?

Assessing Litigation Risks Before It's Too Late

By Lori B. Leskin
Act now to avoid "woulda-coulda-shoulda" scenarios.

Advertencia: Florida Silent on Duty to Warn in Spanish

By Jaret J. Fuente and David L. Luck
Manufacturers are not required to provide bilingual product warnings.

Navigating the Daubert Landscape

By Marjorie A. Farris and Kristen K. Orr
Evolving trends concerning Daubert's role in class-certification proceedings.

Hungry for Standards?

By Antonio Gallegos
The Food Safety Regulations will establish uniform safety standards for the food industry.

A Closer Look: Federal Courts Jurisdiction and Venue Clarification Act

By James C. Barton Jr., Alan D. Mathis, and Zachary D. Trotter
Intended to "bring more clarity" to jurisdictional issues, the act also raises important questions.

The CPSC Database Approaches Second Birthday

By Josh Johanningmeier, Kerry Gabrielson, and Tristan Breedlove
Love it or hate it, the database is not going away. A look back at its brief and controversial history and what the future may hold.

Court Enjoins CPSC from Publishing Materially Inaccurate Report

By Tonya G. Newman
The U.S. District Court for the District of Maryland recently prohibited the Consumer Product Safety Commission from publishing a report implicating a consumer product, finding that it violated the Administrative Procedure Act.

Bankruptcy Trusts and Asbestos Litigation

By Lee Blanton Ziffer
As asbestos litigation stretches into its fifth decade, the largest mass tort in U.S. history has shown no signs of slowing down.

Preemption Cases: 2011's El Nino Flood

By Jim O'Reilly
If the Supreme Court's flow of decisions were measured like weather, 2011 was the El Nino flood of preemption case law affecting products liability.

Wisconsin's Tort Reform: A Victory for Manufacturers

By Allen C. Schlinsog Jr.
Within the first month of taking office, Wisconsin Governor Scott Walker signed into law the most sweeping changes to products liability law Wisconsin has ever seen.

Government Action Does Not Equal Proximate Causation

By Knight S. Anderson
The EPA has listed listed trichloroethylene in the EPA Integrated Risk Information System database as carcinogenic to humans, but the action is a classification based on estimated risk and purpose, not a pronouncement of a presumption on proximate cause.

Perjury During Depositions and Its Consequences

By Jessalyn H. Zeigler and Allyn Rubright Gibson

A review of the federal and state rules of civil procedure shows a general failure to provide directly for sanctions when a party commits perjury during a deposition.


The Legal Environment for Hydraulic Fracturing

By Kevin M. Eddy
An increase in the number of lawsuits involving the chemicals used in the hydraulic fracturing process may follow a wide expansion of the procedure's use.


Taking and Defending Rule 30(b)(6) Depositions for Young Lawyers

By John A. Camp
The deposition of a corporate representative is a chance for the corporation being deposed to tell its story, but it has the potential to bind the corporation in ways it did not intend or anticipate.


Reporting Product Occurrences to Canadian Authorities

By Julia Mercier and Cheryl Woodin
The Canada Consumer Product Safety Act has significant implications extending far beyond Canadian borders.

Food Labeling Remains Ripe for Consumer Fraud Class Actions

By Sarah L. Brew, Kristin R. Eads, and Steven B. Toeniskoetter
Food companies face vast scrutiny of their product labeling and advertising.

Matrixx Initiatives, Inc. v. Siracusano: Its Effect on Causation Evidence in Products Liability Cases

By Scott Elder and Travis Thompson
The Supreme Court’s decision does not fundamentally alter the established framework for weeding out unreliable scientific causation evidence.

New Health Care Law Affects Medical Liabilities and Drives New Plaintiff Options

By James T. O’Reilly and Michele L. Young
The 2010 PPACA deepens the trench that separates injured plaintiffs from access to compensation under traditional medical malpractice law.

How Parent Corporations Can Be Directly Liable for a Subsidiary Product

By Jay P. Mayesh
The law of negligent undertakings offers a potential pathway of direct liability to a parent corporation’s assets.

The Future of Strict Liability Law in Pennsylvania: Is a Change Foreseeable?

By Jodi Dyan Oley and Dennis P. Ziemba
Pennsylvania courts have intensified their analyses of the framework used to evaluate strict product liability claims.

Discovery Practice in Conflict with China’s State Secrets Law

By Josh Johanningmeier and Patricia Wheeler
China’s draconian state secrets law stands in the way of obtaining what would likely be seen as routine information in civil discovery.

A Global Outlook: FDA’s Shifting Strategies to Address the Safety of Imported Goods

By Una Young Kang
Products regulated by the FDA are currently imported from more 300,000 foreign facilities.

Defending Mass Retailer Liability for Foreign-Sourced Goods

By Michelle Cheek
When products liability suits arise from poor quality control, domestic companies can find themselves in a precarious position when it comes to determining who will bear the loss.

Getting the Discovery You Need When It Is on the Other Side of the World

By Megan Jury and Sara Athen
There are no easy solutions for domestic litigants needing to acquire documents from a non-party in a foreign country.

Tips for Examining Life Care Planners and Economists

By Hope Thai Cannon
In catastrophic personal injury cases, plaintiffs rely on the expert testimony of life care planners and economists to support their claim for damages.

The CPSIA’s Expanded Reporting Obligations and Revised Recall Provisions

By Josh Johanningmeier and Bryan Cahill
Since the CPSIA was signed into law, companies have focused on compliance efforts as they face deadlines for the new standards, bans, and testing requirements.

Are the Effects of Carcinogens at Trace Levels Overstated?

By Forrest A. Hainline and Jennifer Yu Sacro
The California Attorney General filed suit against several manufacturers of french fries and potato chips, seeking warnings that the products contain acrylamide.

The Medical Device Safety Act of 2009 | PDF

By Una Young Kang
Congressional committees are considering a bill that would amend the FDCA with respect to liability under state and local requirements respecting medical devices.

Getting the Best Value from Trial Consultants and Jury Research | PDF

By Jo Ellen Livingston, Ph.D.
Why should you hire a person who is not a lawyer to help try your case? If you are a successful lawyer, what does pretrial research bring to the table?

“Should I Google the Jury?” and Other Ethical Considerations

By Sarah Grider Cronan and Neal F. Bailen
There continue to be substantial gray areas as to appropriate behavior between lawyers and jurors within the confines of the courtroom.

Supreme Court Sets “Procedural” Limit on Punitive Damages

By David Broughel
Philip Morris USA v. Williams sets constitutional boundaries on what conduct a jury may punish in a particular punitive damages award.

Removal Based on Fraudulent Joinder of a Sales Representative

By James C. Barton Jr.
It's common for the plaintiff’s counsel to join local sales representatives as defendants to destroy diversity jurisdiction in an action between the plaintiff and the manufacturer.

Limiting Exposure in Clinical Trials

By Justine G. Cuccia
Maximum care in clinical trials can be a matter of life and death—not only for the test subject, but also for the drug or device being tested.

“Off-Label” Is “In”

By Daniel S. Wittenberg and Brendan M. Ford
The newest weapons in America’s ongoing battle of the bulge are just the latest chapter in the ongoing debate over off-label use.

CAFA: For Whom the (Removal) Burden Tolls

By Alan E. Rothman and Steven Glickstein
As plaintiffs and defendants fight over the turf on which class actions are litigated, they will attempt to shift the burden of establishing the application of CAFA to removed actions.

Young Lawyers

10 Tips for an Effective Mediation

By Sheldon L. Haden
As more courts are ordering parties to mediate, more cases are settling and more young lawyers are never seeing the inside of a courtroom.

Working With Experts 101: The Do's and Don'ts Every Young Lawyer Should Know | PDF

By Peter W. Burg, John A. Connor, and Tracie J. Renfroe
This article compiles advice for working with experts as presented during the Young Lawyers' Breakout Session at the 2009 Joint CLE Seminar.

30 (b)(6) Depositions: Who Gets the Short Straw When No One Knows the Answer? | PDF

By William S. Ohlemeyer
The rules seem simple—sue a corporation, serve a notice, make them produce someone who can answer your questions. How else can you extract oral testimony from a legal fiction?

Improper Venue vs. Change of Venue – What’s the Difference?

By Noelle Lagueux-Alvarez
Research recently came through for me on an often-confused procedural issue—the defense of improper venue versus moving for a change of venue based on convenience.

Ten Commandments for Effective Rainmaking

By Timothy A. Pratt
Lawyers are an insecure breed, and we worry about two things: Am I a good lawyer? Will I be able to get enough clients to be successful?

How to Second Chair a Trial

By Charles L. Woody
There are numerous practical “to-do” items necessary to organize your case prior to trial.

How to Be an Effective National Counsel

By Maria H. Ruiz
You might be called upon to assist senior attorneys at your firm to fulfill the national counsel role for large clients.

How to Deal With Difficult Opposing Counsel

By Charles L. Woody and Kevin L. Carr
You can use federal or state rules, the ethics arsenal, and your rapport and reputation with the judge to rebuke a member of the bar who is acting out wrongfully.

Ten Tips for Preparing Witnesses for Deposition

By Eric Hudson
Good preparation can affect your witness’ performance during a deposition, and a good deposition translates into an overall better case.

How to be An Effective and Efficient Local Counsel

By Michele G. Johnson
Acting as local counsel for a particular client may seem like an easy job, but your role as local counsel does not stop there.

Can Witnesses Be Excluded From Depositions Of Other Witnesses?

By Justin P. Lemaire
If you determine that exclusion is warranted, move for exclusion under Rule 26(c)(5), bearing in mind that courts hold it should be invoked sparingly.