Cheryl Bush Sworn in as a Regent of the American College of Trial Lawyers

Cheryl Bush, Founding Member of Bush Seyferth PLLC (BSP Law), was sworn in as a Regent of the American College of Trial Lawyers (ACTL) at the Annual Meeting on October 2, 2021. Bush will serve as Regent of the ACTL’s Region 9, which serves Michigan, Ohio, Kentucky, and Tennessee. As a Regent, she will also be assigned to several committees, including Advocacy in the 21st Century, Attorney-Client Relationships, Distinguished Pro Bono Fellows, and the Emil Gumpert Award Committee. Her term began on October 2, 2021, and will last through the 2025 ACTL Annual Meeting.
Bush handles high-stakes cases across the country and has won 95% of her jury trials. She is actively involved in the National Association of Minority & Women Owned Law Firms and is a Senior Life Fellow of the American Board of Trial Advocates. Bush is also a member and Former Vice Chair of the Product Liability Advisory Council. She received her J.D., cum laude, from the University of Michigan Law School.

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PLAC’s Mike Zogby Speaks with Law360 about NJ’s Proposal Regarding 3rd-Party Funding Disclosures

April 27, 2021
Law360 turned to PLAC member Michael C. Zogby of Faegre Drinker for insight about the U.S. District Court for the District of New Jersey’s recent proposed amendment to its local civil rules, which would require litigants to disclose the identities of outside funders and whether they have input on litigation decisions. Zogby, deputy leader of the firm’s product liability and mass torts practice and co-chair of the health & life sciences litigation team, shared commentary with associate Kaitlyn Stone.

Zogby told Law360 that he believes the court has the chance to be a leader in terms of third-party litigation funding disclosure with its proposed rule change. “We have so many large-scale, important mass actions right now that this is a perfect example, and timetable, for the court to put in transparency and disclosure guidance to really help with the cases that are being filed in the district,” he explained. “It’s long overdue nationally, but this does show that the District of New Jersey is ahead of the curve in making sure that a rule is on the books.”

Kaitlyn Stone, one of PLAC’s emerging leaders, agreed with Zogby, saying “It’s just another example of the District of New Jersey being on the forefront of an issue. They really are on top of issues, and even if we would have liked to have seen it a bit earlier, they still are ahead of the curve in terms of what’s been happening nationally.”

Read their full commentary here (subscription to Law360 required).

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On December 16, 2021, the Massachusetts Supreme Judicial Court (SJC) issued its decision in Ofer Nemirovsky v. Daikin North America, LLC (SJC-13108.) PLAC submitted an amicus brief in support of member Daikin North America, LLC on the issue of whether the component parts doctrine bars a contract-based claim for breach of the implied warranty of merchantability of a non-defective component. The SJC agreed with PLAC’s argument that a manufacturer, distributor or seller of a non-defective component is not liable for damage caused by a defect in the integrated product.

Background: Plaintiff experienced issues with his Daikin-brand HVAC system which was designed, manufactured, sold and installed by corporate entities other than Daikin NA, which only sold replacement parts to Plaintiff. Plaintiff asserted claims against defendants for breach of express warranty, breach of the implied warranty of merchantability, intentional and negligent misrepresentation and violation of M.G.L. c. 93A.

The Court also addressed other issues PLAC raised in its amicus brief, including that the district court improperly held J&J responsible for harm allegedly caused by opioids sold by other companies. In addition, the Court recognized a manufacturer lacks control over its product once sold, noting a “product manufacturer’s responsibility is to put a lawful, non-defective product into the market. There is no common law tort duty to monitor how a consumer uses or misuses a product after it is sold.”

Following motions for summary judgment, only Plaintiff's claims for breach of the implied warranty of merchantability, misrepresentation, and violation of M.G.L. c. 93A were allowed to proceed to trial. The jury held Daikin NA liable for $10 million even though plaintiff’s own expert testified defects elsewhere in the HVAC system - for which Daikin NA was not responsible - caused the replacement parts (sold to Plaintiff for less than $9,000) to fail prematurely.

Daikin NA filed a motion for judgment notwithstanding the verdict and a motion for a new trial or remittitur. Both motions were denied and Daikin NA appealed.

Result: The SJC granted Daikin NA's application for direct appellate review, reversed the trial court's decision, and remanded for reconsideration of damages on the tort claim. The SJC concluded that given the absence of evidence of any defect in the coils Daikin NA distributed, the component parts doctrine precluded Plaintiff's breach of warranty claim against Daikin NA.

Significance: The SJC's decision extended tort-based component parts doctrine to UCC merchantability claims for purely economic loss. It adopted the position PLAC urged that the component parts doctrine applies to non-standalone components that have no functional capability unless integrated into other products, to specialized components that are designed only for use in an integrated product, and to both tort and warranty claims.

In its decision, the SJC acknowledged the amicus brief submitted by PLAC.

A copy of the SJC's decision and PLAC’s brief, authored by James M. Campbell and Christopher R. Howe (Campbell Conroy & O'Neil, PC), are available for download below.

View PLAC’s Brief View the Court’s Opinion

On November 9, 2021, the Supreme Court of Oklahoma issued a highly significant decision that rejected efforts by the plaintiffs’ bar to avoid traditional principles of product liability through a sweeping application of nuisance law. The Court reversed the trial court’s decision in State of Oklahoma v. Johnson & Johnson, et al. which had held J&J’s lawful conduct of marketing and selling opioid products constituted a public nuisance under Oklahoma nuisance law. The trial court ordered J&J to pay $465 million to fund one year of the State’s abatement plan.

In reversing the district court, the Oklahoma Supreme Court offered a sound and detailed analysis of the numerous reasons nuisance law should not apply to the sale of products, providing persuasive authority for other courts throughout the United States addressing similar theories of liability. The Court adopted the rationale urged in PLAC’s amicus brief, recognizing that “[p]ublic nuisance and product-related liability are two distinct causes of action, each with boundaries that are not intended to overlap,” and that “public nuisance is fundamentally ill-suited to resolve claims against product manufacturers.”

The Court also addressed other issues PLAC raised in its amicus brief, including that the district court improperly held J&J responsible for harm allegedly caused by opioids sold by other companies. In addition, the Court recognized a manufacturer lacks control over its product once sold, noting a “product manufacturer’s responsibility is to put a lawful, non-defective product into the market. There is no common law tort duty to monitor how a consumer uses or misuses a product after it is sold.”

PLAC’s brief was authored by Theodore J. Boutrous Jr., Christopher D. Dusseault and Samuel Eckman of Gibson, Dunn & Crutcher, LLP, with support from Oklahoma counsel John H. Tucker and Kerry R. Lewis of Rhodes, Hieronymus Jones Tucker & Gable.  

View PLAC’s Brief View the Court’s Opinion

On October 22, 2021, the Connecticut Supreme Court heard oral argument in Glover v. Bausch & Lomb, Inc., which presents two certified questions from the Second Circuit Court of Appeals regarding Connecticut’s product liability laws.

The first certified question asks whether Connecticut law recognizes a tort cause of action based on a medical device manufacturer’s alleged failure to report adverse events to the FDA and comply with post-approval requirements. The questioning from the Court focused on a provision of the state’s product liability statute providing that a product warning may be inadequate if it is not devised to communicate “with the person best able to take or recommend precautions against the potential harm.” The Court’s questioning suggests it may be divided as to whether a regulatory agency like the FDA fits within this statutory text. Traditionally, this provision in medical device cases has been interpreted to apply solely to doctors consistent with the learned intermediary doctrine. The Court was also interested in the extent to which out-of-state decisions that the parties cited dealt with similar statutory language.

The second certified question asks whether Connecticut’s product liability statute bars a claim under the state’s consumer protection statute based on a medical device manufacturer’s alleged deceptive and aggressive marketing of its product. There were very few questions from the Court on this topic. The limited questioning focused on the scope of the plaintiff’s marketing claim and the extent to which the marketing claim is simply a veiled product defect claim.

Click here to view the oral argument.

PLAC is pleased to join ADTA, ATRA, DRI, IADC, The Washington Legal Foundation, and other national defense bar groups, business associations, and civil justice/public policy organizations in a letter to the Florida Supreme Court supporting its recent rule amendment codifying the “apex doctrine” and extending it to current and former corporate officers to shield such individuals from abusive discovery. Many thanks to Mark Behrens and his team at Shook, Hardy & Bacon who prepared the letter and assembled the coalition of defense organizations to voice their support for the amendment.

Volkswagen Aktiengesellschaft v. Ohio ex rel. Yost, S. Ct. No. 21-312
PLAC and the Motor & Equipment Manufacturers Association (MEMA) filed a brief in support of Volkswagen. Volkswagen is challenging an Ohio Supreme Court decision that allowed Ohio to seek penalties under state anti-tampering laws for fleet-wide vehicle-emission system updates. The brief urges the Supreme Court to grant certiorari and hold that the Clean Air Act preempts States and localities from regulating manufacturers’ post-sale, nationwide updates to vehicle-emission systems. It builds on PLAC and MEMA’s February 2021 brief in Volkswagen Group of America, Inc. v. Environmental Protection Commission of Hillsborough County, S. Ct. No. 20-994 – involving a similar Ninth Circuit decision where two counties sued Volkswagen – that remains pending at the Supreme Court. The brief emphasizes the massive penalties at stake – potentially trillions of dollars. And it explains that if the decisions of the Ohio Supreme Court and the Ninth Circuit are allowed to stand, there would be a patchwork of emissions regulations across the country, leading to needless litigation and increased costs for manufacturers and consumers.
Nicole A. Saharsky and Eric A. White of Mayer Brown LLP authored the brief.

PLAC's mission is to obtain fairness and balance in the common law of product liability. A primary tool to accomplish this mission is PLAC's Amicus Curiae Program, often called “The heart and soul of PLAC.”

PLAC has filed more than 1,100 amicus briefs, written by some of the nation’s top appellate practitioners. Our briefs have been accepted in virtually every state and federal court in the U.S. They are routinely acknowledged, quoted, and praised by courts in published opinions.

PLAC’s amicus briefs help shape the law for all manufacturers on important issues.

Click here to learn more about PLAC’s Amicus Program or to submit a request for amicus support. 

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PLAC is a specialty bar association focusing on complex litigation and regulatory issues in the area of product development and product liability. Our not-for-profit association of product manufacturers, suppliers, retailers and select regulatory, litigation and appellate professionals who work to shape the common law of product liability and complex regulation, provide guidance on changing regulations, and strategically help corporations manage risk throughout the entire product lifecycle. PLAC is a unique resource for companies who must defend their products’ integrity and their companies’ reputation.