Insights

California employers will not face tort liability to employees’ household members who contract COVID-19, the California Supreme Court ruled on July 6.  Answering questions certified by the U.S. Court of Appeals for the Ninth Circuit, and declining to follow its ruling in “take-home” asbestos cases,[i] the Court in Kuciemba v. Victory Woodworks, Inc., held that “recognizing a duty of care to nonemployees in this context would impose an intolerable burden on employers and society in contravention of public policy.” [ii] California thus becomes the first state to reject, at the highest court level, the potentially limitless liability for negligence based on employee transmission of the coronavirus.[iii]

Can a state court, consistent with the Due Process Clause, compel a foreign corporation seeking to do business in the state to consent to general (“all-purpose”) personal jurisdiction?  Until its decision this week in Mallory v. Norfolk Southern Railway Co.,[1] the majority of courts forecast that the Supreme Court would answer that question with a resounding “no.”  Instead, five Justices in Mallory agreed that Pennsylvania’s business registration statute, which requires foreign corporations to consent to the state’s personal jurisdiction over “any cause of action” brought against them in state court, did not violate the Due Process Clause.[2] The decision is sure to encourage forum shopping and perhaps lead other states to adopt similar “consent-by-registration” statutes.

Reaffirming its landmark decision in Parker v. Mobil Oil Corp.,[1] New York’s highest court last week overturned a $16.5 million jury verdict for the husband of a woman who had died from peritoneal mesothelioma allegedly caused by a decade of daily exposure to asbestos-contaminated talcum powder. [2] The ruling is the latest in a series by the Court of Appeals requiring toxic tort plaintiffs to prove exposure “to sufficient levels of the toxin to cause the illness.”[3] The Court used the case to reiterate that conclusory assertions of causation, or qualitative terms such as “excessive,” are insufficient to meet the Parker causation standard. 

In its seventh decision on personal jurisdiction over out-of-state defendants in the past decade, the United States Supreme Court yesterday ruled 8-01 that due process does not require a strict causal link between the defendant’s in-forum conduct and the plaintiff’s injury. Ford Motor Co. v. Montana Eighth Judicial District Court et al., No. 19-368 (March 25, 2021). Writing for the Court, and joined by Chief Justice Roberts and Justices Breyer, Sotomayor, and Kavanaugh, Justice Kagan held: “When a company like Ford serves a market for a product in a State and that product causes injury in the State to one of its residents, the State’s courts may entertain the resulting suit.”2 The suit need only “arise out of or relate to the defendant’s contacts with the forum.”3 Reviewing the Court’s personal jurisdiction decisions since International Shoe Co. v. Washington, 326 U.S. 310 (1945), Justice Kagan emphasized that the decision was consistent with precedent, including Bristol-Myers Squibb Co. v. Superior Ct. of Cal., 137 S. Ct. 1773 (2017), and announced no new test of specific jurisdiction.

Twenty-seven years after the U.S. Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), Maryland has joined the ranks of jurisdictions adopting the Daubert standard for admissibility of expert testimony. In a 4-3 decision in Rochkind v Stevenson, 2020 WL 5085877 (Md. August 28, 2020), the Maryland Court of Appeals, calling itself “delayed…in joining the supermajority,”1 formally completed the state’s “drift toward Daubert.”2 “We implement a single standard,” the court announced, “by which courts evaluate all expert testimony: Daubert.”3

On May 5, 2020, a federal district court granted a motion to dismiss filed by Smithfield Foods in response to a widely publicized workplace health and safety complaint filed by a workers’ advocacy group. Rural Community Workers Alliance and Jane Doe v. Smithfield Foods, Inc. Citing a pending OSHA investigation at the plant, the court held that the primary jurisdiction doctrine warranted dismissal of the action to allow OSHA (in coordination with the United States Department of Agriculture (USDA)) an opportunity to consider the issues presented in plaintiffs’ complaint. Judge Greg Kays also concluded that plaintiffs failed to satisfy the traditional requirements for a preliminary injunction. The opinion forecasts several recurring themes of COVID-19 litigation and demonstrates the importance of creating a strong record of an employer’s good-faith efforts to protect its workers. 

On April 8, 2020, Massachusetts Governor Charlie Baker exercised his powers as an “Authority Having Jurisdiction” to issue a directive designating specific activities to which Public Readiness and Emergency Preparedness (“PREP”) Act immunity will apply in Massachusetts. The PREP Act provides expansive immunity from liability for claims of loss related to designated “Covered Countermeasures,” and was recently activated with respect to medical countermeasures against COVID-19 pursuant to a declaration issued by the Secretary of the Department of Health and Human Services.  However, certain restrictions apply, and there is little precedent to provide guidance as to how PREP Act immunity may attach in practice.

Everyone wants to help by providing necessary equipment to the COVID-19 frontline: hospitals, doctors, nurses, and other healthcare providers battling COVID-19 need ventilators, masks, gowns and other supplies.

With the rapid spread of COVID-19, federal, state and local governments have been scrambling to ensure that the country is equipped with adequate resources to help mitigate the spread of the virus and treat those who have fallen ill. The Public Readiness and Emergency Preparedness Act (PREP Act) was enacted in 2005 and serves as a means of incentivizing contributions of much-needed resources in such times of crisis. The PREP Act authorizes the Secretary of the Department of Health and Human Services to issue a Declaration immunizing individuals and entities from liability associated with the use of medical countermeasures. Specifically, “Covered Persons” cannot be held liable for any claim of loss “caused by, arising out of, relating to, or resulting from” the development, testing, manufacture, distribution, administration, or use of designated “Covered Countermeasures” within the Secretary’s specified period of emergency.

Can a federal court, after Bristol-Myers Squibb Co. v. Superior Court of California,1 still exercise specific jurisdiction over a nationwide class action? Trial courts have debated the question for nearly three years. Last week, two federal circuits became the first appellate courts to decide. One held that a federal court can do so; the other, that the question is premature until the class is certified. At stake is the viability of nationwide or multi-state class actions in a forum where the defendant is not “at home” for purposes of general jurisdiction.

For the seventh time in the past ten years, the United States Supreme Court has agreed to address the contours of personal jurisdiction over out-of-state defendants. The question presented, in two consolidated product liability cases, is whether a lawsuit can be said to “arise out of or relate to” a defendant’s contacts with the forum state1 when none of those contacts caused the plaintiff’s claims. The Court’s decision may help clarify where specific jurisdiction lies over manufacturers of nationally distributed products or portable products that may be sold in one state and then transported to another. 

In a surprise reversal, the Florida Supreme Court last week adopted the state legislature’s 2017 “Daubert amendments,” replacing Frye with Daubert as the test for admissibility of expert testimony in the state’s trial courts.1 The decision comes just seven months after the court rejected the Daubert amendments as unconstitutional in DeLisle v. Crane Co.2 The switch is effective immediately.

Five years after the Florida legislature amended the state’s evidence code to incorporate the Daubert standard for admissibility of expert testimony, the Florida Supreme Court last week held the amendment unconstitutional.1 “With our decision today,” said the Court, “we reaffirm that Frye, not Daubert, is the appropriate test in Florida courts.”2  Florida now rejoins the minority of states that adhere to the “general acceptance” standard for expert testimony. Equally important for toxic tort defendants, the Court held that medical causation testimony, including the “every exposure” theory of mesothelioma causation, “is not new or novel and is not subject to Frye analysis.”3

The health care industry has seen more than its share of defamation and intellectual property infringement cases. Many of these cases involve unknown persons hiding behind the anonymity of the internet and invoking the First Amendment to remain anonymous. All is not lost, however, for the victims of injurious speech and conduct by anonymous persons. As demonstrated by the following four health care cases, the First Amendment anonymity defense is surmountable.

On Monday, June 19, 2017, the U.S. Supreme Court issued the latest in a series of decisions clarifying the constitutional limits on where corporations may be sued outside their "home" forums. In Bristol-Myers Squibb Co. v. Superior Court of California for the County of San Francisco, the Court held, 8-1, that California state courts had no jurisdiction to hear the claims of non-California residents against Bristol-Myers Squibb Co. (BMS), a foreign corporation incorporated in Delaware and headquartered in New York. Writing for the majority, Justice Samuel Alito held that BMS’s sales of its drug Plavix to California consumers, however extensive, were not enough to create personal jurisdiction in that case, given that (1) the non-resident plaintiffs did not claim to have suffered harm in California, and (2) all the conduct giving rise to these non-residents’ claims occurred outside California.

Retailers and consumer products companies need to be aware of a new law affecting negative online reviews. Last Wednesday, President Obama signed the Consumer Review Fairness Act of 2016 (H.R. 5111) into law. The Act voids “non-disparagement clauses” in form contracts designed to prevent consumers from posting negative comments and online reviews of products and services. The Act also makes it unlawful for companies to include these clauses in their form contracts. The Federal Trade Commission will enforce the Act in the same way it enforces against unfair or deceptive trade practices under its jurisdiction; state attorneys general may also enforce the Act under certain conditions. For existing contracts, the Act will take effect in 90 days and FTC/state enforcement may commence one year from now.

Following in the footsteps of the Third Circuit, the Sixth Circuit last week held in Merrick v. Diageo Americas Supply, Inc., 2015 WL 6646818 (6th Cir. Nov. 2, 2015) that the Clean Air Act (CAA) did not preempt the state law tort claims of a putative class of property owners who alleged that a distillery's ethanol emissions intruded onto their property, constituting trespass, nuisance, and negligence. The same day, the Sixth Circuit relied on Merrick in rejecting CAA preemption arguments in a similar case, Little v. Louisville Gas & Electric, Case No. 14-6499. The decisions open another door to common law suits against industrial air emitters who dutifully comply with the Clean Air Act.

Today marks the effective date for EPA's rule governing the disposal of coal combustion residuals ("CCR," also known as "coal ash") generated as a by-product of coal-fired electricity generation. Under Subtitle D of the Resource Conservation and Recovery Act, the CCR Rule for the first time places enforcement authority primarily in the hands of citizens, who may access compliance information online in accordance with EPA's Next Generation (NextGen) compliance initiative. Although many of the Rule's requirements have future compliance deadlines, today owners or operators of CCR landfills and surface impoundments must finalize their fugitive dust control plans, begin weekly inspections, initiate monthly monitoring of surface impoundment instruments, conduct required recordkeeping, provide required notifications to state or tribal authorities, and establish their publicly accessible websites in accordance with 40 C.F.R. §§ 257.80, 257.83, 257.84, and 257.05-257.07.

On July 14, Senators Edward J. Markey (D-Mass) and Richard Blumenthal (D-Conn) introduced the Security and Privacy in Your Car Act of 2015, or "SPY Car Act." The bill, which would amend both the Motor Vehicle Safety Act (49 U.S.C. § 30101, et seq.) and the Federal Trade Commission Act (15 U.S.C. § 41 et seq.), has two purposes:  (1) to create more secure vehicles, and (2) to better inform consumers about vehicle cybersecurity and the use of driving data.

The U.S. Environmental Protection Agency (EPA) has adopted extensive new regulations for the disposal of coal combustion residuals (CCR or coal ash) as a solid waste under Subtitle D of the Resource Conservation and Recovery Act (RCRA). The final CCR rule, signed by EPA Administrator Gina McCarthy on December 19, 2014, will take effect on October 14, 2015. 80 Fed. Reg. 21302 (Apr. 17, 2015).