Litigants recently tested the limits of liability waivers under Iowa law. In a 6-1 decision, the Iowa Supreme Court joined the bulk of other jurisdictions and held a contractual liability waiver was not enforceable “to the extent it purports to eliminate liability for the willful, wanton, or reckless conduct” a plaintiff alleges. Lukken v. Fleischer, 962 N.W.2d 71, 82 (Iowa 2021).
About a year ago, the Office of Environmental Health Hazard Assessment (OEHHA) proposed to amend the short form warning rules for Proposition 65. Proposition 65 requires businesses to warn Californians about exposure to certain chemicals through “clear and reasonable” warnings. There are currently two forms of “safe harbor” warnings, one of which is the short form warning. The short form warning requires less detail, takes up less label space, and does not require the listing of any chemical names, which has made it a popular choice.
OEHHA, concerned about misuse of the short form warning proposed to modify the short form warning rule in early 2021 to provide consumers with more detailed information and to limit the use of short form warnings to small products. The public comment period for these initial proposed revisions closed on March 29, 2021. Following the public comment period and a public hearing, OEHHA received over 150 written and oral comments. In response to those comments OEHHA is now proposing the following modifications to the proposed rule:
- Increasing the maximum label size for short form warnings from 5 square inches to 12 square inches
- Continuing to allow the use of short form warnings on websites and catalogs
- Adding additional signal options: “CA Warning” and “California Warning”
- Creating an additional warning option for exposure to carcinogens or reproductive toxicants
- Removing the use of the term “product label” to increase clarity
While the proposed rule will still limit the use of short form warning, the above modifications offer some relief. The modified proposed rule is available here. OEHHA is requesting comments on the proposed modifications until January 14, 2022.
If your organization is interested in commenting on this proposed regulation, contact one of Husch Blackwell’s Proposition 65 legal experts. Our team also assists manufacturers in determining whether their products are covered by Proposition 65, provide assistance designing complainant warnings, as well as serve as legal counsel to address a Proposition 65 60-day notices.
On December 22, 2021, the Supreme Court of Pennsylvania issued a decision in Mallory v. Norfolk S. R.R. Co., Civ. A. No. 3 EAP 2021, Slip. Op. J-49-2021, at 33, 44 (Pa. Dec. 22, 2021) that is sure to become the pillar of jurisdictional challenges going forward. The Court unanimously held that general jurisdiction does not exist solely on the basis of a company’s registration to do business in Pennsylvania. In so doing, the Commonwealth’s highest court eviscerated plaintiffs’ go-to opinion to the contrary, Webb-Benjamin LLC v. International Rug Group, LLC, 192 A.3d 1133 (Pa. Super. 2018), and emphasized that Pennsylvania’s long-arm statute, 42 Pa. C.S. § 5301(a)(2)(i), which provides that companies registering to do business in the Commonwealth consent to general jurisdiction, “clearly, palpably, and plainly violates the Constitution.” Mallory, Slip. Op. J-49-2021, at 33. This welcomed clarification brings Pennsylvania’s general jurisdiction jurisprudence in line with the United States Supreme Court’s precedent and, hopefully, puts an end to litigation that does not belong in Pennsylvania against defendants who merely registered to do business there. Continue Reading Pennsylvania Supreme Court Puts An End to Consent By Registration Theory of General Personal Jurisdiction
On October 18, 2021, the U.S. Environmental Protection Agency (“EPA”) issued its highly anticipated PFAS Strategic Roadmap: EPA’s Commitments to Action 2021-2024, setting forth a three-year multi-agency strategy to address per- and polyfluoroalkyl substances (“PFAS”). The plan outlines actions that will fundamentally alter the administrative landscape around PFAS.
On November 9, 2021, the Oklahoma Supreme Court set aside a $465 million verdict against Johnson & Johnson (J&J) in State ex rel. Hunter v. Johnson & Johnson, 2021 OK 54. In 2017, the State of Oklahoma sued three opioid manufacturers, including J&J, alleging the companies deceptively marketed opioids in the state. At trial, only J&J and the claim of public nuisance remained. At the end of a 33-day bench trial, the district court ordered J&J to pay $572 million, representing funding for one year of Oklahoma’s opioid abatement plan. Our previous report on the district court award can be found here. Due to a calculation error in the original award, the district court award was subsequently reduced to $465 million. According to the district court, J&J was liable under Oklahoma’s public nuisance statute for conducting false, misleading, and dangerous marketing campaigns about prescription opioids.
In Murphy v. Viad Corporation, the United States District Court for the Eastern District of Michigan recently considered the issue of specific personal jurisdiction in the context of asbestos claims under the standard set forth by the Supreme Court of the United States in its recent decision in Ford Motor Co. v. Mont. Eighth Judicial Dist. Court. In doing so, the Court reinforced that specific jurisdiction cannot be established where the products at issue were never sold or marketed in that forum. Continue Reading Michigan Court Weighs In On Specific Personal Jurisdiction
On November 5, 2021, Cook County’s HIPAA Qualified Protective Order (“QPO”) was considerably reconstructed in light of the Illinois Supreme Court’s decision in Haage v. Zavala, 2021 IL 125918. Illinois litigators were alerted of these new changes through a Law Division-issued order, titled General Administrative Order 21-3 (“GAO”), and a corresponding standard QPO. According to the GAO, to the extent that any previously entered QPO conflicts with the new one, the new QPO controls, and motions to vacate, amend, and/or modify are not required. As explained below, these changes, which affect virtually all Cook County cases involving bodily injuries, will make fact investigation and damages substantiation significantly more difficult for defendants. Continue Reading Cook County Issues Revised HIPAA Order, Narrowing the Utility of Medical Provider Subpoenas
Pump manufacturer Nash Engineering Company appears to have recently become the latest casualty of asbestos litigation. On October 19, 2021, Nash Engineering filed for Chapter 7 bankruptcy in the United States Bankruptcy Court for the District of Connecticut. If Nash Engineering’s petition for relief is approved, this will spell the end of the 100-year-old corporation. Nash Engineering now joins a list of more than 60 other companies that have been forced to declare bankruptcy due to the burden of their asbestos-related liabilities. Continue Reading Is Nash Engineering the Latest Company Bankrupted by Asbestos Litigation?
In the most recent round of the long-running litigation over hearing protection supplied by manufacturing giant 3M and used by U.S. Military personnel from 2002 until 2015, Plaintiffs have obtained large verdicts in 3 out of 4 bellwether cases against 3M.
On September 21, 2021, in Cooper Tire & Rubber Company v. McCall, the Georgia Supreme Court reaffirmed the broad holding that any corporation registered to do business in Georgia is subject to general personal jurisdiction in Georgia courts. This expansive interpretation, especially in light of recent United States Supreme Court jurisprudence, was handed down despite growing concern about a corporate defendant’s federal rights under the Due Process Clause of the Fourteenth Amendment of the United States Constitution. Continue Reading Georgia Supreme Court Reaffirms Consent by Registration Theory of Personal Jurisdiction