Justia U.S. 3rd Circuit Court of Appeals Opinion Summaries

Articles Posted in Products Liability

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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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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

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The Textron Lycoming engine, manufactured in 1969, was installed on a Cessna aircraft in 1998. It was overhauled in 2004, with a carburetor in accordance with Lycoming’s type-certificated design. Sikkelee was piloting the aircraft when it crashed shortly after taking off. Sikkelee died. His estate sued, claiming that the aircraft lost power as a result of a malfunction or defect in the carburetor. The court held that Sikkelee’s claims, which were premised on state law standards of care, fell within the preempted “field of air safety.” An amended complaint incorporated federal standards of care by alleging violations of FAA regulations. Before trial, the court concluded that the federal standard of care was established in the type certificate. Reasoning that the FAA issues a type certificate based on its determination of compliance with pertinent regulations, it held that the FAA’s issuance of a type certificate for the engine meant that the federal standard of care had been satisfied as a matter of law. The court granted Lycoming partial summary judgment and certified an immediate appeal. The Third Circuit reversed, concluding that federal statutes and FAA regulations reflect that Congress did not intend to categorically preempt aircraft products liability claims. Subject to traditional principles of conflict preemption, including concerning specifications included in a type certificate, aircraft products liability cases may proceed using a state standard of care. View "Sikkelee v. Precision Airmotive Corp" on Justia Law

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Whether a third-party payer (TPP) will cover the cost of a member’s prescription depends on whether that drug is listed in the TPP’s formulary. Pharmacy Benefit Managers prepare TPPs’ formularies of drugs approved for use by TPP members by analyzing research regarding a drug’s cost effectiveness, safety and efficacy. In 1999, the FDA approved Avandia as a prescription for type II diabetes. TPPs included Avandia in their formularies and covered Avandia prescriptions at a favorable rate. GSK downplayed concerns about Avandia’s heart-related side effects. In 2010, the FDA restricted access to Avandia in response to increasing evidence of its cardiovascular risks. TPPs (union health and welfare funds) sued GSK on behalf of themselves and similarly situated TPPs. asserting that GSK’s failure to disclose Avandia’s significant heart-related risks violated the Racketeer Influenced and Corrupt Organizations Act based on predicate acts of mail fraud, wire fraud, tampering with witnesses, and use of interstate facilities to conduct unlawful activity. They also claimed unjust enrichment and violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law and other states’ consumer protection laws. The Third Circuit affirmed the district court’s finding that the TPPs adequately alleged the elements of standing. View "In Re: Avandia Mktg.,Sales Practices & Prod. Liab." on Justia Law

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A.S., who suffers from a congenital birth defect, and his mother, Miller, who ingested Paxil while pregnant, sued GSK in the Philadelphia County Court, alleging that all parties were citizens of Pennsylvania. GSK removed the case based upon diversity. On plaintiffs’ motion, the case was consolidated with other Paxil cases before a district court judge who had previously held that GSK was a citizen of Pennsylvania and who remanded A.S.’s case and the other consolidated cases to state court. The case returned to state court on January 4, 2012. On June 7, 2013, the Third Circuit issued its opinion in Johnson, which held that GSK was a citizen of Delaware. Less than 30 days after the Johnson decision, GSK filed a second notice of removal in A.S.’s case and in eight other cases with the same procedural posture. The district court denied the motion and certified its order for interlocutory review. The Third Circuit directed remand to state court, holding that the second removal request was untimely under 28 U.S.C. 1446(b) because there had been a final order. View "A.S. v. SmithKline Beecham Corp" on Justia Law

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In 1995 the FDA approved Fosamax® to treat or prevent osteoporosis and Paget’s Disease. Teva developed alendronate sodium, a generic form of the branded drug, and obtained FDA approval on its abbreviated new drug application in 2008. Other generic manufacturers subsequently obtained approval for formulations. The drugs act by inhibiting bone resorption or absorption and suppressing bone turnover; they also inhibit primary mineralization, which is involved in the formation of new bone. Meanwhile, secondary mineralization of existing bone continues, which increases the bone’s mineral content and results in higher bone mineral density. According to the plaintiffs, higher bone mineral density does not necessarily correspond with reduction of fracture risk but can make bone highly mineralized, homogenous, brittle, and more susceptible to fracture. According to some studies, the effects of alendronate sodium linger, with one study reporting that bone turnover may be inhibited by 50% five years after discontinuing treatment. The district court granted judgment on the pleadings in favor of the generic manufacturer defendants finding that state-law strict liability claims were pre-empted by federal law. The Seventh Circuit affirmed. Manufacturers have no control over the design or labeling of generic drugs; the plaintiffs failed to identify anything the generic defendants could do to reconcile their conflicting duties under state and federal law.View "In re: Fosmax (Alendronate Sodium)" on Justia Law

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In the late 1990s, people who had taken the prescription diet-drug combination Fen-Phen began suing Wyeth, claiming that the drugs caused valvular heart disease. A 2000 settlement included creation of the Fen-Phen Settlement Trust to compensate class members who had sustained heart damage. Claims required medical evidence. Attorneys who represented certain claimants retained Tai, a board-certified Level 2-qualified cardiologist, to read tests and prepare reports. Tai read 12,000 tests and asserted that he was owed $2 million dollars for his services. Tai later acknowledged that in about 10% of the cases, he dictated reports consistent with the technicians’ reports despite knowing that the measurements were wrong, and that he had his technician and office manager review about 1,000 of the tests because he did not have enough time to do the work. A review of the forms Tai submitted found that, in a substantial number of cases, the measurements were clearly incorrect and were actually inconsistent with a human adult heart. Tai was convicted of mail and wire fraud, 18 U.S.C. 1341 and 1343, was sentenced to 72 months’ imprisonment, and was ordered to pay restitution of $4,579,663 and a fine of $15,000. The Third Circuit rejected arguments that the court erred by implicitly shifting the burden of proof in its “willful blindness” jury instruction and applying upward adjustments under the advisory Sentencing Guidelines for abuse of a position of trust and use of a special skill, but remanded for factual findings concerning whether Tai supervised a criminally culpable subordinate, as required for an aggravated role enhancement. View "United States v. Tai" on Justia Law

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Decades ago, BASF’s predecessor, Engelhard, discovered that its talc products contained disease-causing asbestos. Plaintiffs allege that Engelhard, with the help of the Cahill law firm, destroyed or hid tests and reports that documented the presence of asbestos in Engelhard talc; when new plaintiffs focused on Engelhard’s talc as a possible cause of their disease, Engelhard represented that its talc did not contain asbestos and that no tests ever said it did. Most of the original plaintiffs have died. Spurred by recent testimony that Engelhard’s talc contained asbestos and that the company knew it, survivors and successors brought claims of fraud, fraudulent concealment, and violation of the New Jersey Racketeer Influenced and Corrupt Organizations Act. The district court dismissed, finding that each was inadequately pled or barred by law. The court found the requested declarations and injunctions-ranging from an injunction against the future invocation of res judicata to a declaration that BASF and Cahill committed fraud—beyond its power to grant, but rejected defendants’ argument that the Rooker-Feldman doctrine deprived it of jurisdiction. The Third Circuit reversed as to the fraud and fraudulent concealment claims, but affirmed dismissal of the RICO claim. To the extent that plaintiffs attempt to have the court decide, now, statute of limitations, laches, and preclusion issues that will arise in future cases, they fail to present a whole or ripe controversy. View "Williams v. BASF Catalysts LLC" on Justia Law

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In 1975, a pistol manufactured by MKEK malfunctioned, firing a bullet through Ohntrup’s hand while he loaded the gun. The court held the seller, Firearms Center and MKEK, which is wholly owned by the Republic of Turkey, jointly liable for $847,173.97 and required MKEK to indemnify Firearms Center. The Morgan law firm represented MKEK, but after appeal, sought to withdraw. The court permitted the individual lawyers to withdraw but required the firm to remain as counsel of record until MKEK hired substitute counsel. The Third Circuit affirmed, characterizing MKEK as an intractable litigant and stating that a communication gap would hamper post-judgment proceedings. The Ohntrups tried to collect their judgment; MKEK disregarded the Ohntrups’ discovery requests. The Ohntrups sought assistance from the State Department and pursued MKEK in Turkish courts, to no avail. In 2007, Ohntrup’s widow obtained a $16 million civil contempt judgment against MKEK that grows by $10,000 annually. Ohntrup’s judgments against MKEK are now worth about $25 million. In 2011, Ohntrup’s lawyers learned of a $16.2 million transaction in which a Minneapolis-based company. (Alliant), agreed to sell munitions manufacturing components to MKEK. Ohntrup obtained some discovery from Alliant, but the district court denied subsequent discovery requests. When Ohntrup renewed her post-judgment discovery efforts, Morgan was granted leave to withdraw. The Third Circuit affirmed the order granting leave to withdraw, but remanded the discovery order. The court erred when it relied upon the uncertainty surrounding the judgment creditor’s ability to attach the targeted property. View "Ohntrup v. Makina Ve Kimya Endustrisi Kur" on Justia Law

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For more than 30 years, Grace has defended itself against asbestos-related lawsuits filed by building owners seeking redress for costs involved in removing Grace products. AMH owns a hospital complex that used Grace products in its construction and filed a class action lawsuit in South Carolina state court. Before resolution of that litigation, Grace filed a petition for Chapter 11 protection. After about 10 years, most property damage claims against Grace had been settled, contingent on approval of an 11 U.S.C. 524(g) trust and an injunction channeling property damage claims against Grace to that trust for payment. AMH did not settle. The Bankruptcy Court confirmed Grace’s reorganization, including a trust and channeling injunction, over AMH’s objections. The district court and Third Circuit affirmed, rejecting arguments that the reorganization plan did not meet the requirements of section 524(g), which provides a mechanism for handling overwhelming asbestos-related liabilities in Chapter 11 proceedings; that the plan failed to provide equal treatment as required by 11 U.S.C. 1123(a)(4), (C) ; that Grace did not show that the Plan was proposed in good faith under 11 U.S.C. 1129(a) and did not show that the Plan is feasible. View "In Re: W.R. Grace & Co." on Justia Law