In Kurns v. R.R. Friction Prods. Corp., 132 S. Ct. 1261 (2012), the Supreme Court considered whether Federal railroad safety laws pre-empted a rail worker from suing a railroad parts manufacturer under a more protective state regulation for his asbestos-related injuries.  From 1947 to 1994, the decedent worked as a welder, machinist, and supervisor for a rail company, and much of his job involved removing insulation from locomotive boilers and installing brake shoes on the locomotives.  Plaintiffs claimed that during this time period the decedent was repeatedly exposed to asbestos from asbestos insulation and asbestos-containing brake shoes.  After decedent’s retirement, he was diagnosed with malignant mesothelioma, the only known cause of which is exposure to asbestos. 

Plaintiffs sued the railroad parts’ manufacturers and distributors of the locomotives and locomotive parts.  Plaintiffs alleged that the decedent contracted mesothelioma as a result of exposure to asbestos in the defendants’ products, and that the products did not carry warnings about the dangers of asbestos.  The Defendants admitted to manufacturing asbestos-containing products and failing to provide specific product warnings under state law. 

The United States District Court for the Eastern District of Pennsylvania rejected Plaintiffs’ claims, contending that they were barred by the Locomotive Inspection Act (“LIA”), which provided that a railroad carrier may only use a locomotive that is in proper condition and safe to operate without unnecessary danger of personal injury.  The United States Court of Appeals for the Third Circuit affirmed.  The Supreme Court was asked to decide whether Congress intended the Federal railroad safety acts to pre-empt the state law-based tort claims of failure to warn and design defect.

Federal railroad regulations were silent as to warnings for asbestos-containing products.  The Defendants moved for summary judgment, arguing that the claimants were pre-empted by the LIA which, they argued, occupied the entire field of such claims pursuant to Napier, which held that pre-emption “extends to the design, the construction, and the material of every part of the locomotive being tendered and of all appurtenances.”  The Supreme Court was persuaded by the Defendants’ argument that the LIA controlled the entire field of regulation of railroad parts manufacture and use, and therefore, found the state tort claims were pre-empted.  The Court relied mainly upon Napier.

Judge Thomas’ opinion for the majority made it clear that failure-to-warn claims fall fully within the field of claims governed solely by federal regulation, not state-based tort law.  The opinion concluded, “a failure-to-warn claim alleges that the product itself is unlawfully dangerous unless occupied by sufficient warnings or instructions. . . .  Because Petitioners’ [Plaintiffs’] failure-to-warn claims are therefore directed at the equipment of locomotives, they fall within the pre-empted field defined by Napier.”  Thus, the Supreme Court held that the LIA pre-empted the state law design defect claims and the state law failure-to-warn claims.  The Court emphasized that state law must yield to a Congressional act, to the extent of any conflict with a Federal statute, even if there is no express pre-emption.  The Court further determined that the Federal Railroad Safety Act did not change the scope of the LIA.

Submitted by Marisa A. Trasatti and Kevin M. Cox of Semmes, Bowen & Semmes

This entry was posted on May 10, 2012 at 6:47 PM and has received 20 views. There are currently 0 comments. Print this entry.

Locomotive Inspection Act Pre-empts State Tort Law Claims For Design Defects And Failure-To-Warn in Asbestos Exposure Case

InKurns v. R.R. Friction Prods. Corp., 132 S. Ct. 1261 (2012), the Supreme Court considered whether Federal railroad safety laws pre-empted a rail worker from suing a railroad parts manufacturer under a more protective state regulation for his asbestos-related injuries.  From 1947 to 1994, the decedent worked as a welder, machinist, and supervisor for a rail company, and much of his job involved removing insulation from locomotive boilers and installing brake shoes on the locomotives.  Plaintiffs claimed that during this time period the decedent was repeatedly exposed to asbestos from asbestos insulation and asbestos-containing brake shoes.  After decedent’s retirement, he was diagnosed with malignant mesothelioma, the only known cause of which is exposure to asbestos.

Plaintiffs sued the railroad parts’ manufacturers and distributors of the locomotives and locomotive parts.  Plaintiffs alleged that the decedent contracted mesothelioma as a result of exposure to asbestos in the defendants’ products, and that the products did not carry warnings about the dangers of asbestos.  The Defendants admitted to manufacturing asbestos-containing products and failing to provide specific product warnings under state law.

The United States District Court for the Eastern District of Pennsylvania rejected Plaintiffs’ claims, contending that they were barred by the Locomotive Inspection Act (“LIA”), which provided that a railroad carrier may only use a locomotive that is in proper condition and safe to operate without unnecessary danger of personal injury.  The United States Court of Appeals for the Third Circuit affirmed.  The Supreme Court was asked to decide whether Congress intended the Federal railroad safety acts to pre-empt the state law-based tort claims of failure to warn and design defect.

Federal railroad regulations were silent as to warnings for asbestos-containing products.  The Defendants moved for summary judgment, arguing that the claimants were pre-empted by the LIA which, they argued, occupied the entire field of such claims pursuant to Napier, which held that pre-emption “extends to the design, the construction, and the material of every part of the locomotive being tendered and of all appurtenances.”  The Supreme Court was persuaded by the Defendants’ argument that the LIA controlled the entire field of regulation of railroad parts manufacture and use, and therefore, found the state tort claims were pre-empted.  The Court relied mainly upon Napier.

Judge Thomas’ opinion for the majority made it clear that failure-to-warn claims fall fully within the field of claims governed solely by federal regulation, not state-based tort law.  The opinion concluded, “a failure-to-warn claim alleges that the product itself is unlawfully dangerous unless occupied by sufficient warnings or instructions. . . .  Because Petitioners’ [Plaintiffs’] failure-to-warn claims are therefore directed at the equipment of locomotives, they fall within the pre-empted field defined by Napier.”  Thus, the Supreme Court held that the LIA pre-empted the state law design defect claims and the state law failure-to-warn claims.  The Court emphasized that state law must yield to a Congressional act, to the extent of any conflict with a Federal statute, even if there is no express pre-emption.  The Court further determined that the Federal Railroad Safety Act did not change the scope of the LIA.

Submitted by Marisa A. Trasatti and Kevin M. Cox of Semmes, Bowen & Semmes

This entry was posted on April 12, 2012 at 9:06 PM and has received 67 views. There are currently 0 comments. Print this entry.

No Personal Jurisdiction Over Out-of-State Defendant Who Hosted Website and Accepted Dues from Forum State Residents

In Allcarrier Worldwide Servs. v. United Network Equipment Dealer Ass’n, No. AW-11-cv-01714 (U.S. District Court for D. Md., September 22, 2011), the seminal issue was whether the Court had personal jurisdiction over the Defendant, a non-profit organization, that hosted a website and accepted dues from members worldwide, including Plaintiff and thirteen others residing in the forum state.  In holding that there was no personal jurisdiction, the Court granted the Defendants’ Motion to Dismiss.

The Court found that Defendant merely provided its members access to a website in which the members, not Defendant, engaged in business transactions related to buying and selling computer equipment. Although it granted access to members internationally, including in Maryland, its role was only “passive.” The Court declined to hold that because Defendant accepted membership dues from Plaintiff and thirteen (13) other residents of the forum state that it was subject to personal jurisdiction there. To find personal jurisdiction in the forum state would require a finding of personal jurisdiction in all states in which members resided and would eviscerate the personal jurisdiction requirements of the long arm statute and the due process clause. Defendant’s ties with the forum state, i.e., the fact that it had a handful of members from the forum state, who signed membership agreements and paid annual dues, was insufficient to support a finding of either specific or general jurisdiction. Consequently, the case was dismissed.

This case is helpful for Defendants who may do business in a state only by virtue of the web, as it limits the practical effect of such conduct on the issue of personal jurisdiction. 

Submitted by: Marisa A. Trasatti and Colleen K. O’Brien of Semmes, Bowen & Semmes

This entry was posted on March 19, 2012 at 4:52 PM and has received 90 views. There are currently 0 comments. Print this entry.

With medical device recalls on the rise in recent years, defense attorneys are well-advised to anticipate plaintiffs’ attempting to introduce product recall evidence at trial.  Preparation, i.e., knowing the rules of evidence, is the only antidote.  The following are key evidentiary objections to consider when attempting to exclude evidence of recall in your case:

Hearsay: The hearsay objection can be successfully implemented to exclude evidence of a recall against a product distributor, as opposed to a manufacturer.  Distributor defendants should argue that the recall letters are out-of-court, written statements by the product manufacturers, and are thus, inadmissible hearsay.  When the recall letter issued by the manufacturer is introduced by plaintiffs against a manufacturer defendant, however, several exceptions may thwart the application of the hearsay rule.  First, the recall notices issued by your manufacturer client is a statement by a party-opponent.  Second, Plaintiff may argue, under Federal Rule of Evidence 804(b)(3), that the recall letters are “statements against interest” and as admission by the manufacturer that the product was defective.  Third, opposing counsel may argue that records relating to the recall fall under the business records exception, provided by Rule 803(8), allowing the court to admit evidence of the product recall.

Relevance: Relevance may be a successful objection when the recall is: 1) not of the same product; 2) not the same defect; 3) there is no evidence that the product at issue was defective; or 4) the reason for the recall was not the proximate cause of the accident.

Subsequent Remedial Measures: The Subsequent Remedial Measures Rule may exclude the recall evidence, however, the application of this rule will depend on whether the recall was voluntary or involuntary.  Fed. R. Evid. 407, which covers subsequent remedial measures, only precludes evidence of voluntary product recalls.  If the product recall was involuntary, then it will be admissible.  Even if the product recall was voluntary, it still may come in.  For instance, the recall evidence may come in if the recall evidence is needed to show control; to show the feasibility of a precautionary measure/alternative design; or to impeach. 

There is no silver bullet, unfortunately, when it comes to excluding product recall evidence.  In fact, some medical device defendants may be best-served by embracing the evidence of the recall as a demonstration to the jury of their corporate accountability and responsibility.  Under this strategy, defense attorneys can then emphasize self-corrective behavior.  The more common strategy, however, is to keep the product recall evidence away from the jury because overcoming juror prejudice associated with headline product recalls is a feat.  In these cases, the goal is to use the evidentiary tools discussed in this article to keep the evidence out and convince the jury that they are smarter than the Plaintiff.

This entry was posted on March 3, 2012 at 12:33 AM and has received 38 views. There are currently 0 comments. Print this entry.

The False Claims Act (FCA), which prohibits any person from knowingly causing the submission of false claims to the federal government for payment or approval, includes a qui tam provision that allows people who are not affiliated with the government to file actions on behalf of the government.  Several states have also created FCA statutes with qui tam provisions.  Recently, these acts have been used to bring claims against pharmaceutical companies for marketing drugs and medical devices for off-label uses—uses other than those specified on the product labels approved by the Food and Drug Administration (FDA).  As a result, many pharmaceutical companies have paid staggering claims to settle these cases.  For instance, Pfizer paid $430 million in 2004 to settle a claim that it encouraged physicians to prescribe the drug Neurontin, to treat bipolar disorder rather than epilepsy (its FDA approved use).  As a result, Plaintiffs are increasingly alleging injury from off-label use of medical products in product liability suits against physicians and manufacturers.  In the past, the learned intermediary doctrine has served as a powerful defense for manufacturers, but the application of this doctrine in off-label cases has been inconsistent among the states.     

By way of background, the learned intermediary doctrine serves as a shield for manufacturers against consumer claims arising from allegations of failure to warn of a product’s risks.  Essentially, the doctrine protects manufacturers from liability if they warn physicians of the risks associated with a drug or device.  However, physicians commonly engage in off-label use, and it is impossible for manufacturers to warn physicians of every risk associated with all uses of a medical product. 

The law regarding the learned intermediary doctrine and off-label use is conflicting.  This creates difficulty in determining the best way to defend drug manufacturers in cases involving off-label use.  In some jurisdictions, whether the learned intermediary doctrine applies depends on the manufacturer’s knowledge or the foreseeability of the off-label use.  In other jurisdictions, the learned intermediary doctrine’s application depends on the manufacturer’s promotion of an off-label use.  Still, in other jurisdictions, courts have assumed that manufacturers always have a duty to warn and have not applied the doctrine in the absence of warnings.  Finally, some jurisdictions find that the learned intermediary doctrine applies in all cases because physicians use their entire knowledge base and training to determine what is best for the patient. 

Given these varied approaches, litigators must look to their state law on the learned intermediary doctrine, specifically involving off-label use, in order to determine the relevant evidence and the likelihood that the learned intermediary doctrine will protect manufacturers sued in that particular jurisdiction.

This entry was posted on February 27, 2012 at 8:08 PM and has received 131 views. There are currently 0 comments. Print this entry.

Athough social media sites are a powerful marketing tool for attorneys, attorneys must always be cognizant of the implication of social media on ethics rules.  Below are five tips for avoiding ethical dilemmas through your use of social media:

1. Never blog about, reference, or discuss a client matter.  This ties into Rule 1.6 Confidentiality, which states that “A lawyer shall not reveal information relating to the representation of a client . . . .” 

1. Never offer legal advice.  This is a sure way to inadvertently create an attorney-client relationship.  You can create an attorney-client relationship on much lesser grounds than by a formal retainer agreement.  In fact, courts have even stated that if the client believes there is an attorney-client relationship, then it exists.  Avoid doling out legal advice online which could cause you to inadvertently create an attorney-client relationship. 

1. Don’t solicit clients through social media.  Rule 7.3 states that a lawyer shall not solicit professional employment through real-time electronic contact, unless the person contacted is a lawyer, has a family, close personal, or prior professional relationship with the lawyer.  This Rule applies to social media too.

1. Avoid ex parte communications.  Rule 4.2 and Rule 4.3 prohibit attorneys from communicating through social media with parties represented by other counsel and unrepresented persons.

1. Don’t call yourself a specialist.  Do not state “specializing in BLANK law” because it violates Rule 7.4.  Although you can communicate the fact that you practice in certain areas of law, you can only hold yourself out as a “specialist” under very narrow circumstances. 

This entry was posted on February 10, 2012 at 9:20 PM and has received 172 views. There are currently 0 comments. Print this entry.

Five FaceBook Tips for Attorneys

Submitted by: Marisa A. Trasatti and Colleen K. O’Brien of Semmes, Bowen & Semmes

Attorneys often wonder how to use Facebook in order to market their business.  The following are five tips that you can use today to begin to market yourself on Facebook:

1. Know Your Privacy Settings.  Facebook is the site where professionals find that their social lives and their professional lives blurring.  If you plan to use Facebook professionally, carefully monitor your privacy control settings, including who is allowed to view your profile and tag you in photos, in order to maintain a professional image.  Social media is about being authentic and personal, but on this site especially, you must be observant of the image you are projecting.      

1. Groups.  Search for groups of professional organizations that are relevant to your practice.  If you search for a group and can’t find it, start a group yourself!  Any Facebook user can do so.     

1. Use the Newsfeed. Once you have decided that you will use Facebook for professional purposes, consider how frequently you would need to post status updates.  If you post regularly, it means that even if your friends are not visiting your page every day, they will see your status updates in their newsfeed. 

1. Promote events. Use Facebook to promote your firm or bar association’s next event by creating an event page.  Invite your friends, and let them invite their friends.  This is a great way to increase turnout.   

1. Share your stories.  Add Facebook’s Like bookmark link to your blogs, web pages, and articles so that readers can Like them and share them with their friends.  To take this a step further, you can either import blog posts into Facebook as “Notes” or you can post a status update linking to your blog.  Any of these strategies will widen your audience. 

This entry was posted on January 4, 2012 at 7:05 PM and has received 158 views. There are currently 0 comments. Print this entry.

Attorneys must keep up with social media platforms to augment their business marketing.  The following are five practical tips for using Twitter, one of the leading social media sites:

1. Pick a handle.  When you sign up for Twitter, you will be prompted to choose a handle, or screen name.  The best options are your full name or a variation of it, a combination of your name and your company, or a combination of your name and your industry.  This will help brand your social media presence.  Also, keep in mind that with a 140 character limit on tweets, that a short and sweet handle will save you valuable cyber real estate.

1. Who to follow.  Start with companies, colleagues, friends, family, affiliations, and places around your community that you like.  The more people, businesses, and organizations that you follow, the more follow requests you are going to get.  For the legal community in particular, check out JD Scoop’s “Who to Follow” list and add yourself to that list.   

1. Use Twitter Search.  Twitter Search is similar to Google search.  Type in your search request and the Twitter Search engine will find conversations on that topic.  Use this tool to find more leads on who to follow.

1. When to Tweet.  According to MarketingGum.com, posting between 9 a.m. to 3 p.m. increases your chances of attracting traffic.  The best time?  Between 1 p.m. and 2 p.m.

1. How often to Tweet.  According to HubSpot, the average number of tweets per day is 4.422.  And those tweeters with the highest followings tweet 22 times per day!  Of course, you should aim to strike a happy medium so as not to inundate your followers.

Submitted by: Marisa A. Trasatti and Colleen K. O’Brien of Semmes, Bowen & Semmes

This entry was posted on December 15, 2011 at 5:01 PM and has received 377 views. There are currently 0 comments. Print this entry.

In Windsorv. Spinner Industry Co., Ltd., No. JKB-10-114 (U.S. District Court for D. Md., October 19, 2011), the issue was the extent to which a state could exercise personal jurisdiction over a nonresident manufacturer whose only connection with the state was its products were sold there by third-party distributors.  

Plaintiffs brought a product liability suit against sports company defendants for injuries in connection with a bicycle accident.  Defendant Joy Industrial Co. (“Joy”) moved to dismiss all claims against it for lack of personal jurisdiction.  Joy was a Taiwanese corporation that designed and manufactured a component part of the bicycle known as a “quick release skewer,” which Plaintiffs alleged contributed to the cause of the accident.  The parties agreed that Joy sold its products to distributors, manufacturers, and trading companies, who then marketed them in every state in the U.S., but that Joy had no direct contacts with the forum state.  

The Court noted that the factual record failed to sustain a prima facie case of personal jurisdiction over Joy, as Plaintiffs devoted nearly their entire brief to describing the conduct of third-party distributors and manufacturers, who had “no connection whatever” to the case, apparently believing that those parties’ contacts with the forum state could be attributed, vicariously, to Joy.  However, the Court gave the Plaintiffs another bite of the apple, issuing an order holding in abeyance Defendant’s Motion to Dismiss and scheduled an evidentiary hearing on the issue of Joy’s contacts with the forum.  The Court steered the Plaintiffs toward producing evidence of the chain of distribution that brought the allegedly defective skewer to the bicycle manufacturer, and then to the retailer, and “additional conduct” that would evince an intent to serve the Maryland bicycle market in particular, to sustain its claim of personal jurisdiction as to Joy.  

This case comes on the heels of J. McIntyre Machinery, Ltd. v. Nicastro, 131 S.Ct. 2780, 2793 (2011) (plurality opinion), where the Supreme Court failed to issue a clear standard vis-à-vis personal jurisdiction over foreign defendants.
Submitted by: Marisa A. Trasatti and Colleen K. O’Brien of Semmes, Bowen & Semmes

This entry was posted on December 12, 2011 at 9:47 PM and has received 57 views. There are currently 0 comments. Print this entry.