Class Action

Slack Fill Claim Dismissed from Southern District of New York

A recent decision from the Southern District of New York demonstrates the increasing scrutiny of “slack fill” claims. In Morrison v. Barcel USA, LLC, the plaintiff filed a putative class action predicated on the theory that the plaintiff purchased certain bags of tortilla chips and that they contained “too much air and too few chips.” Specifically, the plaintiff alleged that the defendant increased the size of the bags and filled them with “empty space to make it appear to consumers that they are buying more…
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Federal Court Finds Issue of Fact on “Artificial Flavor” Label — Partially Grants Class Certification

David Rutkowski

Recently, the United States District Court for the Southern District of California granted partial certification to a class-action suit filed over alleged false advertising based primarily upon the labeling of “artificial flavors” in beverages manufactured by defendant Ocean Spray Cranberries, Inc. The plaintiff claimed that the labels on certain juice-based beverages falsely stated “No . . . artificial flavors” when in fact the beverages contained artificial flavoring chemicals (malic acid and fumaric acid) that simulate the advertised fruit flavors. The plaintiff was seeking to certify…
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First Circuit Affirms Preemption of State-Law Claim for Consumer Fraud

March 23, 2015
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Class Action Consumer Fraud Claims Duty to Warn Labeling Pharmaceuticals Preemption Product Liability
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Life Science Matters

In a key preemption ruling late last month, the United States Court of Appeals for the First Circuit affirmed the dismissal of a putative class action. The First Circuit affirmed dismissal where the plaintiffs alleged consumer fraud, holding that state-law claims for false or misleading labeling are preempted by federal law. Read the full decision here. The First Circuit’s ruling built upon recent United States Supreme Court decisions holding that state-law claims aimed at generic drug labeling are preempted by applying this important defense to…
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Defendants in Mass Tort Pelvic Mesh Lawsuits May Now Succeed With Removal to Federal Court – Non-Diverse Defendant Wins Dismissal

September 11, 2014
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Class Action Design Defect Drug/Medical Device FDA Litigation Litigation Strategies Medical Device News Pharmaceutical/Medical Device/Biotechnology Product Liability Summary Judgment
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Lisa M. Robinson

In a significant win for Secant Medical LLC, (Secant), Judge Arnold L. New of the Court of Common Pleas of Philadelphia County granted its motion to dismiss mass tort pelvic mesh personal injury claims in a decision dated August 22, 2014. The court held that under the Biomedical Access Assurance Act (BAAA), Secant is not a manufacturer or seller of the pelvic mesh. Secant, a Pennsylvania company, was undoubtedly named to defeat diversity jurisdiction in an effort by plaintiffs to stay in state court in…
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Last Week’s Important Life Science Headlines

February 25, 2014
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Class Action Design Defect FDA Litigation Medical Device News Pharmaceuticals Product Liability Recalls Regulatory
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Life Science Matters

Litigation

Xarelto Lawsuit Filed Over Uncontrollable Internal Bleeding
Neomedic Cases Added to Vaginal Mesh Litigation in W.Va. Federal Court
Endo Puts Aside $520M for Vaginal Mesh Litigation (subscription required)
9^th Circ. Refuses to Revive Novartis Jaw Injury Litigation (subscription required)
FTC Bags $2M False Ad Win Against Diabetes Supplement Co. (subscription required)
J&J Mesh Suits Belong in Federal Court, 10^th Circ. Told (subscription required)
New Philly Mass Tort Program Created for Pelvic Mesh Suits (subscription required)
J&J Wins 1

Pennsylvania Supreme Court Opens Door for Negligent Design Claims Against Pharmaceutical Manufacturers

February 5, 2014
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Class Action Design Defect Litigation Medical Device News Pharmaceuticals Product Liability Regulatory
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Life Science Matters

In a decision with significant potential ramifications, the Pennsylvania Supreme Court has issued a ruling that pharmaceutical companies can be held liable for negligence in the design and marketing of drugs, regardless of claims that the drugs had been properly labeled and tested, as well as approved by the U.S. Food and Drug Administration. The ruling, announced January 22nd, upholds an intermediate appellate court decision against a Pfizer, Inc. subsidiary in a wrongful death action involving the diet drug Redux. In its 4-2 decision, the…
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