What’s Hot What’s Not: Product Liability Law

According to some products liability lawyers, the number of cases has decreased in recent years, at least in the industries that have been particularly hard hit by the economy.

“[That includes] building, transportation – that kind of stuff,” said Minneapolis products liability attorney Jeannine Lee. “People aren’t moving around as much. People aren’t building as many things. When that sort of stuff slows down you’re not going to generate the same volume.”

Nonetheless, lawyers say that as long as people interact with products, there will be products liability litigation. Here’s a look at some of the hot spots within the practice area, as well as a few others that have been “cooling down.”

What’s Hot

Minnesota as a litigation magnet

Minneapolis products liability attorney Michelle Rognlien Gilboe calls the state “a magnet for products claims due to our long statute of limitations.”

Because Minnesota’s six-year statute of limitations is longer than most other states, many plaintiffs who would otherwise be out of time have been able to file their products liability claims here.

“Over the past couple of years, people have just flooded the state with claims,” said Gilboe.

The plaintiffs’ argument is that because the defendant has its product in the stream of commerce, they can sue almost anywhere, she said.

“Some judges kick these cases, saying there is really no context for the state of Minnesota and they shouldn’t be here, and other judges don’t,” said Gilboe.

Attorneys say that Minnesota’s “borrowing” statute, which went into effect Aug. 1, 2004, and requires courts to apply the statute of limitations of the location where the tort occurred, will result in Minnesota courts clamping down on some of these claims.

“Going forward, I think that door is going to shut on people. But that doesn’t mean we don’t still have to deal with the influx that came about over the past couple of years,” said Gilboe.

Lee agreed.

“There are still issues to be litigated around exactly what this statute means” and how it should be applied in particular cases, she said.

Federal pre-emption of generic drug cases

The U.S. Supreme Court recently accepted review of the 8th U.S. Circuit Court of Appeals decision in Mensing v. Wyeth. The justices will consider whether failure-to-warn claims against generic drug manufacturers are pre-empted by federal law.

“That’s a large part of the market obviously that can be affected,” Gilboe said.

Inver Grove Heights attorney Greg McEwen agreed, noting that patent protection is coming off of more and more brand name drugs and the number of generics is on the rise.

Multi-district litigation

Cases that tend to be susceptible to multi-district litigation treatment – food contamination cases, hormone replacement therapy cases, the Levaquin cases – are popular these days.

“I think those cases are more attractive because there can be essentially a single investment and then they are able to use that investment repeatedly in many cases,” said Lee.

But Gilboe said that some courts are declining to form MDLs in a significant number of medical device cases, such as the shoulder pain pump cases.

“So there’s a high volume of individual cases to be dealt with,” she said.

What’s Not so Hot

Mid-sized cases

There’s been a decline in mid-sized cases, particularly those valued at less than a quarter-million dollars.

“Because those cases are technical and require expert testimony, the expense issues related to the expert testimony are driving plaintiffs’ lawyers away from them,” said Lee. “If you need to go out and invest in an expert in order to prove your case, I think it becomes more of a hurdle for plaintiffs.”

McEwen said it’s not unusual for him to spend $75,000 on a products liability case, primarily for expert witnesses.

“If you have a catastrophically injured party in a products case that is still a very active case,” he said. “But if you have somebody with lower-valued medical bills, I can’t afford to take those cases like I used because of the amount of the expert bills.”

Propane-related litication

Attorneys say they’ve also seen a marked decline the amount of propane-related litigation.

“Some of that I think is related to just plain better safety precautions by the propane companies,” Lee said. “They are still out there, but not in the same volume.”

McEwen, who is well-known for his work in the propane-explosion area, agreed that the cases have slowed down.

“There have been some mixed decisions on failure to warn,” he said. “I’m still taking cases, but I’m more selective now.”

Federal pre-emtion of brand-name drug cases

The U.S. Supreme Court decided in Wyeth v. Levine that state law failure-to-warn cases against brand name drug manufacturers are not pre-empted by federal law.

“I think that is settled,” said Gilboe. “The bigger focus now is the generic issue.”

Minnesota Star Tribune – February 11, 2011 – By Michelle Lore