Articles Posted in U.S. Court of Appeals for the Third Circuit

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Hundreds of plaintiffs sued the drug manufacturer Merck, alleging that the osteoporosis drug Fosamax caused them to suffer serious thigh bone fractures. Each brought a state-law tort claim alleging that Merck failed to add an adequate warning of the risk to Fosamax’s FDA-approved drug label. Many also brought claims including defective design, negligence, and breach of warranty. Plaintiffs’ suits were consolidated in multi-district litigation in the District of New Jersey. Following discovery and a bellwether trial, the court granted Merck summary judgment, based on the Supreme Court’s holding in Wyeth v. Levine, that state-law failure-to-warn claims are preempted when there is “clear evidence” that the FDA would not have approved the warning that plaintiffs claim was necessary. The Third Circuit vacated. Preemption is an affirmative defense; Merck did not carry its burden to prove that it is entitled to that defense. The Wyeth “clear evidence” standard is demanding and fact-sensitive. It requires a court sitting in summary judgment to anticipate the range of conclusions that a reasonable juror might reach and the certainty with which the juror would reach them. Here, plaintiffs produced sufficient evidence for a reasonable jury to conclude that the FDA would have approved a properly-worded warning about the risk of thigh fractures—or to conclude that the odds of FDA rejection were less than highly probable. View "In Re: Fosamax Products Liability Litigation" on Justia Law

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Papp alleged that his late wife suffered secondary “take home” asbestos exposure while washing the work clothes of her first husband, Keck. Keck had several jobs that exposed him to asbestos. Papp sued multiple companies in New Jersey. In a deposition, he indicated that the landing gear Keck sandblasted was for a C-47 military cargo plane, built by Boeing’s predecessor. Boeing removed the case, citing the federal officer removal statute, 28 U.S.C. 1442(a)(1). Boeing asserted that it was entitled to government contractor immunity because the C-47 was produced for, and under the specific supervision of, the U.S. military and that the supervision extended to labels and warnings for all parts of the aircraft, including those parts laden with the asbestos to which Keck would later be exposed. The district court remanded, reasoning that Boeing, as a contractor and not a federal officer, had a “special burden” to demonstrate “that a federal officer or agency directly prohibited Boeing from issuing, or otherwise providing, warnings as to the risks associated with exposure to asbestos contained in products on which third-parties … worked or otherwise provided services.” The Third Circuit reversed, holding that the statute extends to contractors who possess a colorable federal defense and that Boeing made a sufficient showing of such a defense. View "Papp v. Fore-Kast Sales Co Inc" on Justia Law

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Hargus and others rented F&I's 26-foot ship, One Love, to travel throughout the U.S. Virgin Islands. F&I had hired Coleman as a captain. At Cruz Bay, Coleman anchored close to the shore. Most of the passengers disembarked. Later, members of the group, standing on the beach approximately 25 feet away from the boat, threw beer cans at Hargus while he was standing on the One Love’s deck. Coleman threw an empty insulated plastic coffee cup that hit Hargus on the side of his head. Hargus did not lose consciousness, nor complain of any injury. One Love resumed its journey. Days later, Hargus, having experienced pain and vision impairments, was diagnosed with a concussion and a mild contusion. Hargus had previously suffered 10-12 head injuries. The doctor allowed Hargus to return to work that day without restrictions. Hargus did not seek further medical treatment until a year later, when he was examined for headaches, memory loss, mood swings, and neck pain. Hargus filed suit, claiming a maritime lien against the One Love, negligence, and negligent entrustment. The district court awarded $50,000, concluding that it had admiralty jurisdiction, that Coleman was negligent and that the One Love was liable in rem. The Third Circuit vacated, holding that the act giving rise to Hargus’ claim was insufficient to invoke maritime jurisdiction because it was not of the type that could potentially disrupt maritime commerce. The district court lacked subject matter jurisdiction. View "Hargus v. Ferocious & Impetuous, LLC" on Justia Law

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From approximately 1953-1999, Frankenberger worked as a pipefitter at various facilities in Illinois and Indiana. In 1996, Frankenberger was diagnosed with a lung condition consistent with asbestos-related pleural disease. He was diagnosed with lung cancer in 2004, and died from the disease in 2005. A medical expert determined Frankenberger’s lung cancer was caused, at least in part, by his exposure to asbestos. Frankenberger’s estate alleged his asbestos exposure occurred as a result of his work in the State Line, Romeoville, and Acme facilities, and his exposure to asbestos-containing: turbines and switchgears. Both pieces of equipment were manufactured and maintained by Westinghouse, a predecessor to CBS. The district court granted CBS summary judgment. The Third Circuit reversed in part, agreeing that Frankenberger’s turbine-related claim failed to demonstrate CBS was a cause of his asbestos exposure, but disagreeing with the conclusion that the switchgear-related claim is deficient. Unlike his turbine-related claim, Frankenberger’s switchgear-related claim relies on specific evidence Westinghouse switchgears were likely to contain asbestos that resulted in respirable dust. View "In Re: Asbestos Prods. Liability Litig." on Justia Law

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More than 200 foreign agricultural workers allege they were exposed to the pesticide DBCP on banana farms throughout Central America, in the 1960s through the 1980s, resulting in health problems. Litigation began in 1993 with a putative class against Dole and related companies in Texas state court. Numerous suits were filed (and consolidated) in 2011 in the Eastern District of Louisiana against Dole and others. That court granted Dole summary judgment based on the statute of limitations; the Fifth Circuit affirmed. Meanwhile, in 2012, several actions were filed in the District of Delaware against the same defendants and alleging the same causes of action. That court dismissed, applying the first-filed rule, reasoning that “one fair bite at the apple is sufficient.” The Third Circuit initially affirmed, but on rehearing, en banc, held that the district court abused its discretion under the first-filed rule by dismissing the claims with prejudice and erred by refusing to transfer claims against Chiquita to another forum. The timeliness dismissals entered by the Louisiana District Court did not create a res judicata bar to the Delaware suits. The court stated that it was “untenable” that 20 years after the litigation began, no court had considered the merits. View "Chavez v. Dole Food Co., Inc" on Justia Law

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Masha was adopted from Russia by Mancuso when she was five years old. During the following five years, Mancuso sexually abused Masha and documented the abuse in photographs and videos, which he distributed online in exchange for media documenting the sexual abuse of other children. Mancuso pled guilty to sexual exploitation of a minor, 18 U.S.C. 2251(a); the government dropped a charge of possession of material depicting the sexual exploitation of a minor, 18 U.S.C. 2252(a)(4)(B). Mancuso stipulated that the dismissed count could be considered in imposing sentence and agreed to pay “mandatory restitution” under the Victim-Witness Protection Act, 18 U.S.C. 3663, 3663A and 3664, of $200,000 into a trust for Masha’s benefit. In 2013, 10 years after Mancuso’s conviction, Masha filed suit under 18 U.S.C. 2255 (called Masha’s law) against a purported class of defendants, including Mancuso. The Third Circuit reversed dismissal of the case. A restitution award for a criminal offense does not bar a later-filed civil claim under section 2255 based on that same offense. The interests of Masha and the government were not squarely aligned in the criminal proceeding; she had a limited ability to participate in the determination of her restitution and no right to appeal, so application of collateral estoppel would be inequitable and would offend the “deep-rooted historic tradition that everyone should have his own day in court.” View "Doe v. Hesketh" on Justia Law

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The district court dismissed a consolidated class action in which plaintiffs, children younger than 13, alleged that Viacom and Google unlawfully collected personal information about them on the Internet, including what webpages they visited and what videos they watched on Viacom’s websites. The claims alleged invasion of privacy under New Jersey law and cited the 1988 Video Privacy Protection Act, 18 U.S.C. 2710 which prohibits the disclosure of personally identifying information relating to viewers’ consumption of video-related services. The Third Circuit affirmed in part, holding that the Act permits plaintiffs to sue only a person who discloses such information, not a person who receives such information, and that the prohibition on the disclosure of personally identifiable information applies only to the kind of information that would readily permit an ordinary person to identify a specific individual’s video-watching behavior, so that digital identifiers, like IP addresses, fall outside the Act. The court vacated dismissal of a claim of intrusion upon seclusion that alleged that Viacom explicitly promised not to collect any personal information about children who browsed its websites and then did so. The 1998 Children’s Online Privacy Protection Act, 15 U.S.C. 6501,authorizing the FTC to regulate websites that target children, does not preempt the state-law privacy claim. View "In Re: Nickleodeon Consumer Privacy Litig." on Justia Law

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Whiteside represented the County of Camden in a lawsuit brought by Anderson, which resulted in a jury award paid, in part, by the County’s excess insurer, National. According to National, the County did not notify it of the lawsuit until several months after it was filed. Whiteside initially informed National that the case was meritless and valued it at $50,000. During trial, Whiteside changed her valuation and requested the full $10 million policy limit to settle Anderson’s claims. National conducted an independent review and denied that request. The jury awarded Anderson $31 million, which was remitted to $19 million. Days later, National sought a declaratory judgment that it was not obligated to provide coverage because the County had breached the policy contract by failing to timely notify National of the case and by failing to mount an adequate investigation and defense. National also asserted claims against Whiteside for legal malpractice, breach of fiduciary duty, and breach of contract. The court dismissed those claims because National could not demonstrate that Whiteside’s actions proximately caused it to suffer any damages. The Third Circuit dismissed and appeal for lack of jurisdiction, finding National’s notice of appeal untimely under Federal Rule of Appellate Procedure 4(a)(1), View "State Nat'l Ins. Co v. County of Camden" on Justia Law

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Between 2002-2006, Lucht purchased treated lumber for a deck on his vacation home in the Virgin Islands. The lumber allegedly decayed prematurely and he began replacing boards in 2010; he claims he did not discover the severity of the problem until the fall of 2011. Lucht sued the retailer, wholesaler, and treatment company of the lumber in February 2013, alleging a Uniform Commercial Code contract claim; a common law contract claim; a breach of warranty claim; a negligence claim; a strict liability claim; and a deceptive trade practices claim under the Virgin Islands Deceptive Trade Practices Act. The district court rejected the claims as time-barred. The Third Circuit affirmed, citing the “‘gist of the action doctrine,” which bars plaintiffs from bringing a tort claim that merely replicates a claim for breach of an underlying contract. View "MRL Dev. I, LLC v. Whitecap Inv. Corp" on Justia Law

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Between 1945 and the mid-1970s, Hassell was employed as an electrician by the Railroad, responsible for the maintenance and repair of passenger railcars designed and manufactured by defendants' predecessors. Steam pipes running underneath those railcars were insulated with material containing asbestos. As a consequence of his exposure to asbestos, Hassell contracted asbestosis and mesothelioma. He died in 2009, during the pendency of his lawsuit. Defendants argued that state law claims were preempted by the Locomotive Boiler Inspection Act (LIA), 49 U.S.C. 20701, the Safety Appliance Act, 49 U.S.C. 20301, and the Federal Railroad Safety Act (FRSA), 49 U.S.C. 20101. The district court held that Hassell’s claims were preempted by the LIA. The Third Circuit vacated, noting the lack of evidence supporting defendants’ assertion that the railcar pipes at issued formed an “interconnected system” with the locomotive. Even assuming that evidence for the “interconnected system” could have been gleaned from the record, Hassell produced evidence from a former Railroad supervisor showing that, instead of being connected to locomotives, the pipes were connected to “power cars” that separately supplied steam heat to the passenger coaches. There was a genuine dispute material fact precluding summary judgment. View "In Re: Asbestos Prods. Liability Litig." on Justia Law