Illinois Appellate Court Says the Learned Intermediary Doctrine Does Not Shield a Device Manufacturer from Liability When a Doctor is Deceived About a Device’s Prior Testing and Suitability

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On Friday, October 30, the Appellate Court of Illinois, Second District, held that the Learned Intermediary Doctrine, which protects medical device manufacturers from liability if they provide physicians with proper warnings, does not shield product manufacturers from liability in situations where the physician is deceived about the subject device’s history of testing and suitability. 

The facts of the case are bizarre, to say the least. The Plaintiff allegedly suffered injuries to her left eye during a relatively routine cataract lens replacement procedure. Prior to the procedure, a sales representative for Defendant/Appellee Johnson & Johnson Surgical Vision, Inc. (“JJSVI”) allegedly brought a prototype lens injector device manufactured by another device company and showed it to the doctor prior to a day of surgical procedures. The Plaintiff alleged that the JJSVI sales rep knowingly misrepresented to the doctor that this prototype device had been approved by the Federal Food and Drug Administration and was being used by other physicians with great success. The doctor allegedly believed the JJSVI sales representative and used the prototype device on the Plaintiff that same day causing injury.  More »

Remote Jury Selection by Video Conferencing

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On October 27, 2020, recognizing the need for video conferencing jury selection in civil trials, the Illinois Supreme Court set out general guidelines for remote jury selection. Some of the operative sections are:

D. Remote jury selection by video conference (herein “remote jury selection”) in civil cases is permissible to reduce the risk of COVID-19 exposure so that litigants can access justice in a timely fashion while keeping all jurors, court personnel, litigants, and the public safe.

For civil matters, circuits may choose to utilize remote jury selection consistent with the guidelines established by the Court Operations During Covid-19 Task Force, and adopted by the court (herein “Guidelines”) on October 27, 2020. More »

Illinois Appellate Court Eliminates Key Defense to BIPA Claims

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On September 18, 2020, the Fifth District Appellate Court in Illinois unanimously held that the exclusivity provision of Illinois’ Workers Compensation Act does not bar employees’ statutory damages claims for violation of Illinois’ biometric privacy law.[1]  The Fifth District’s ruling has eliminated a key defense advanced by employers defending against alleged violations of the Illinois Biometric Information Privacy Act (“BIPA”).[2]

In 2017, plaintiff Marquita McDonald filed a class action lawsuit against her employer Symphony Bronzeville, Park, LLC.  Plaintiff alleged that the defendant-employer required its employees to provide biometric information by scanning fingerprints into a fingerprint-based time clock system.  The lawsuit alleged that the employer violated BIPA by: (1) failing to inform employees in advance and in writing of the specific purpose and length of time for which their fingerprints were being collected, stored, and used; (2) failing to provide a publicly available retention schedule and guidelines for permanently destroying the scanned fingerprints; and (3) failing to obtain a written release from employers prior to collecting their fingerprints.  More »

What is Amy Coney Barrett’s Record on Federal Preemption and What Does it Mean for Future SCOTUS Rulings in Drug and Medical Device Litigation?

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Federal preemption has been the subject of numerous SCOTUS drug and medical device decisions in the past decade.  Several recent decisions have had a profound impact on liability in drug and device litigation cases.  With Amy Coney Barrett confirmed by the Senate and sworn on to the Court on Monday night, it is important to look at her record on federal preemption and how her addition to the Court might impact future rulings in this critical area of life sciences law.

I. Federal Preemption

The doctrine of federal preemption of state laws is rooted in the Supremacy Clause of the United States Constitution, which states that federal law is “the supreme Law of the Land...anything in the Constitution or Laws of any State to the Contrary notwithstanding.”  Essentially, preemption means that if state and federal law directly conflict, then state law must give way.  In making a determination on preemption, courts are to consider whether federal intent is to completely regulate the subject matter.  More »

COVID Delivers Fraud to the Trucking Industry

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The trucking industry and its insurers were already vulnerable to predatory schemes in a pre-COVID-19 society. The current economic uncertainty and anxiety caused by the virus is unfortunately exacerbating that problem.

Last month, the Justice Department issued new indictments against several individuals in Louisiana, alleging a conspiracy to defraud the trucking industry. The defendants allegedly staged accidents in order to recover money from the trucking company’s carrier. That one case has now led to the indictment of a staggering number of 28 individuals who defrauded insurance companies out of hundreds of thousands of dollars. More »

The Application of the Doctrine of Collateral Estoppel to Bar Legal Malpractice Claims Following Allegations of Ineffective Assistance of Counsel

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In a recent unpublished decision, Miles v. Dickstein, unpub op, Docket No. 350136 (Sep. 10, 2020), the Michigan Court of Appeals addressed the application of the doctrine of collateral estoppel (sometimes referred to as “issue preclusion”) in a legal malpractice case arising out of an underlying criminal lawsuit. The Miles Court held that because the standards for evaluating an attorney for ineffective assistance of counsel in a criminal setting and legal malpractice in a civil suit were “equivalent” and “virtually identical,” that collateral estoppel bars a subsequent legal malpractice claim if the trial court evaluated an ineffective counsel claim in the underlying criminal matter. Miles, unpub op, at 1. More »

Prefabricated Construction Liability

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Introduction

Prefabricated residential and commercial construction brings both new building opportunities and new legal concerns. Building with prefabricated components provides for greater efficiency in cost, development, and installation than traditional building methods – allowing entire commercial and residential structures to be assembled at a worksite like building blocks consisting of prefabricated “units” or “modules.” However, this shift from field construction to field assembly also shifts the scope of potential liability for all parties involves – from engineers designing prefabricated components through component manufacturers and down to contractors completing installation and assembly. Below, we consider how changes to construction from prefabricated components affect liability and coverage in the realm of construction liability. More »

Seventh Circuit Recently Clarifies Article III Standing in BIPA Cases

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One longstanding debate among U.S. District Courts lies at the very heart of the judicial process—what, precisely, is sufficient to confer Article III standing in lawsuits alleging violations of Illinois’ Biometric Information Privacy Act (“BIPA”)? The Seventh Circuit has now provided clarity for certain BIPA claims. More »

In Defense of Long-Term Care Facilities: Immunity, and What to do if There is Not Any

COVID-19 cast the entirety of the healthcare system into uncertainty. This is acutely evident in the long-term care setting, where per capita fatality rates remain high. The reasons? (1) The elderly and those with underlying health conditions are most susceptible to severe illness from COVID-19; and (2) those in close quarters, unable or unwilling, to observe social distance parameters, are also at increased risk. When you combine those two risk factors in one setting, this explains the reason that long-term care facilities were, and continue to be, hard hit by COVID-19.  More »

Changes to Punitive Damages Coming to Missouri

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Last week, the Missouri legislature passed comprehensive changes to the assessment of punitive damages in Missouri. The bill, SB 591, outlines new pleading requirements, a clear burden of proof, and a heightened standard with regard to punitive damages. The bill will now head to the desk of Governor Mike Parson, who is expected to sign these new measures into law. More »

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