Maryland Statutory Damages Cap on Pain and Suffering Upheld – Surviving a Challenge to its Constitutionality

A Maryland Court of Special Appeals, the intermediate appellate court for Maryland, recently rejected a constitutional challenge to the state’s statutory cap on non-economic damages in tort claims involving personal injury.  In a unanimous decision, the Court of Special Appeals affirmed the trial court’s reduction of a $2.5 million pain-and-suffering damages award to $830,000 in an automobile collision case.

In Crouell v. Turner, the plaintiff was injured in a motor vehicle accident in May 2017 when a commercial truck crossed over a median and struck her car[1].  After a jury trial, the jury found in favor of the plaintiff and awarded her $314,470.45 for medical expenses, $2,500,000 for non-economic damages and $3,000,000 for punitive damages.  After the verdict, the trial court, applied the cap on non-economic damages and reduced the award from $2,500,000 to $830,000.  The statutory cap was first enacted in 1986 and imposed a limit of $350,000 on non-economic damages related to personal injury or wrongful death.  Non-economic damages in a personal injury action include damages for “pain, suffering, inconvenience, physical impairment, disfigurement, loss of consortium, or other non-pecuniary injury.”[2]  The statutory cap was modified in 1994 to increase the cap to $500,000 and the cap increases by an additional $15,000 for each year after 1994 in which a cause of action arises. Continue reading Maryland Statutory Damages Cap on Pain and Suffering Upheld – Surviving a Challenge to its Constitutionality

Florida Senate Will Not Vote on Bill to Curb Phantom Damages – Allowing Plaintiffs to Continue to Receive a Windfall for Medical Expenses in Personal Injury Cases

When it comes to evidence of medical expenses in personal injury lawsuits, states are split as to what amounts plaintiffs are allowed to introduce to the jury and recover as damages.  The split is over whether plaintiffs should be allowed to recover the full amount of medical expenses that are billed or whether plaintiffs should be allowed to recover the amounts actually paid.  There are growing concerns that allowing recovery of the amounts billed, as opposed to the often reduced number of what is actually paid, incentivizes medical providers to increase costs, especially when the matter may proceed to litigation, knowing that the plaintiff could receive a full recovery of such expenses, resulting in a higher lien payment to the institution.  The difference between the amount billed and the amount paid, if awarded, are commonly referred to as “phantom damages”, and act as a windfall to plaintiffs. Efforts have been made in states allowing for the recovery of amounts billed to change these laws and prevent the recovery of these phantom damages.v Continue reading Florida Senate Will Not Vote on Bill to Curb Phantom Damages – Allowing Plaintiffs to Continue to Receive a Windfall for Medical Expenses in Personal Injury Cases

Testing Methods for Asbestos in Talc Will Be Subject of FDA Public Forum

On January 9, 2020, the U.S. Food and Drug Administration announced that it will host an all-day public forum to discuss testing methods for asbestos in talc and cosmetic products containing talc on February 4, 2020.

According to the FDA, the purpose of the meeting is to discuss testing methods, terminology, and criteria that can be used to characterize and measure asbestos, as well as what the FDA preliminarily states may be “other potentially harmful elongate mineral particles (EMPs)” that may contaminate talc and cosmetics products that contain talc.

Read more in the Beauty and Cosmetics category of the Duane Morris Fashion, Retail and Consumer Branded Products blog.

Why Reformers Want Disclosure Of 3rd-Party MDL Funding

It is no secret that third-party litigation funding, or TPLF, has become an increasingly common practice. One area particularly affected by this trend is that of mass tort actions and multidistrict litigations, where funding is now more than ever being utilized to finance voluminous and prolonged proceedings.

While courts have historically been reluctant to require disclosure of funding agreements and information, precedent suggests that different approaches may be warranted in the MDL context because of considerations unique to those proceedings — including potential for bias, distortions of control and decision-making as between litigants and funders, and conflicts of interest between funders and the judiciary.

Against this backdrop, advocates of disclosure have taken a proactive role in seeking further changes to rules of discovery and disclosure to address these issues. Litigants should be aware of these emerging efforts toward change, and the reasons underlying them, as the use of litigation funding continues to rise.

To read the full text of this article by Duane Morris attorneys Anne A. Gruner, Justin M. L. Stern and Nicholas M. Centrella Jr., please visit the firm website.

Much of Oklahoma’s $572 Million Opioid Case Likely to Be Replicated Elsewhere, But Unique Cause of Action May Not

On August 26, 2019, Cleveland County, Oklahoma, District Judge Thad Balkman delivered his highly anticipated ruling in the state of Oklahoma’s lawsuit against certain pharmaceutical companies responsible for manufacturing and marketing prescription opioid medications. Because the other pharmaceutical companies named in the state’s case settled with the Attorney General’s Office earlier this year, Johnson & Johnson and its subsidiary Janssen Pharmaceuticals remained the primary subjects of the evidence at trial and the focus of the attention surrounding Judge Balkman’s then-forthcoming ruling.

As Judge Balkman stated in the published judgment, the defendants knowingly and misleadingly marketed their highly addictive prescription opioids, and by doing so caused harm for which the state could seek redress, as their “actions annoyed, injured, or endangered the comfort, repose, health or safety of Oklahomans.”

View the full Alert on the Duane Morris LLP website.

Neon Eyeshadow Has Never Been More Popular, But Is It Safe?

In 2016, it was muted monochromatic makeup. The next year ushered in a spectrum of sunset reds and dusty pinks, and 2018 was the year of technicolor highlighter. With bold beauty trends on the rise, it’s no surprise that 2019 has been declared the year of neon. Pinterest reports that searches for “neon eyeshadow” jumped a whopping 842% over the past few months. For fans, especially Gen Zers, the look is a celebration of fun, commitment-free expression: Daydream, create, wash it off, and repeat. But what happens when experimenting with the latest beauty trends could put your health at risk?

[…]

As for the brands that feature a disclaimer not to use on eyes, and then turn around and show models wearing the product on their eyes, Kelly Bonner, associate attorney at Duane Morris LLP in Philadelphia, had this to say: “All labelling must be truthful, not misleading, and contain all required information in a prominent and conspicuous place. Determining whether a label is misleading requires considering whether it contains deceptive representations, or leaves out material facts or consequences resulting from the intended use of the product.”

To read the full text of this article quoting Duane Morris attorney Kelly Bonner, please visit the Refinery29 website.

Contaminated Cosmetics: Recalls, Lawsuits And Legislation

In recent months, reports of asbestos-contaminated cosmetics[1] have illustrated the enduring challenges of manufacturing and marketing cosmetics as safe for consumers, particularly teens, children and expectant mothers. This is especially true where still-developing science, emotion and rapidly disseminated information (and misinformation) all play critical roles in shaping public perception, even influencing jury outcomes.

This article explores the potential legal challenges for supply chain participants arising from contaminated cosmetics, as well as significant proposals to change the way the U.S. Food and Drug Administration regulates cosmetic safety.

To read the full text of this article by Duane Morris attorney Kelly Bonner, please visit the firm website.

Supreme Court Rules That Judges, Not Juries, Must Decide Preemption of Failure-to-Warn Claims

On May 20, 2019, the Supreme Court of the United States issued a rare unanimous decision in Merck Sharp & Dohme Corp. v. Albrecht, et al., holding that judges, not juries, must decide whether state law failure-to-warn claims against brand-name drug manufacturers are preempted by the FDA’s labeling regulations. In so holding, the Court further clarified the preemption standard set forth in an earlier decision, Wyeth v. Levine, concluding that such claims are preempted where a drug manufacturer can show “that it fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve changing the drug’s label to include that warning.”

View the full Alert on the Duane Morris LLP website.

Emerging Product Liability Concerns for Medical 3D Printing

Additive manufacturing, commonly known as 3-dimensional (3D) printing, has been billed as the new industrial revolution. It is a lofty prediction; but we are seeing this prognostication materialize. Everyday consumer products ranging from children’s toys to running shoes are being 3D printed, sometimes right in consumer stores or at home. More and more manufacturers have begun or are exploring additive manufacturing options for their products. 3D-printed products even won an Oscar, when Ruth Carter won Best Costume Design for her work in the movie Black Panther, where portions of Carter’s costumes were 3D printed. From everyday consumer products, to its appearance on the red carpet, 3D printing has arrived.

Recognizing the potential advantages, endless possibilities, and unique manufacturing capabilities offered by 3D printing, more and more medical device manufacturers are entering this new field of technology. However, industry standards and regulations lag behind the pace of innovation. The unique aspects and potential availability of additive manufacturing raise novel products liability issues that may impact traditional product liability litigation doctrines. This article examines the current status of additive manufacturing as well as potential issues and uncertainties it raises for the future of product-liability litigation.

To read the full text of this article by Duane Morris partner Sean K. Burke, please visit the MD&DI Qmed website.