On Wednesday, March 30, 2011, the United States Supreme Court heard oral argument in three consolidated cases, including Pliva, Inc. v. Mensing, that raise the question of whether consumers can sue generic drug manufacturers for failure to warn under state law if, as required by federal law, those manufacturers’ products use warning labels identical to labels used on corresponding brand-name drugs. The case has been characterized as a follow up to Wyeth v. Levine, in which the Court ruled 6-3 that makers of brand-name drugs can be sued under state law for failure to warn of risks associated with the use of their products despite the FDA’s approval of labels giving warnings about the effects of pharmaceuticals. Commentators have observed that the justices appeared to be divided at oral argument as to whether generic manufacturers should be amenable to similar lawsuits.
Articles By Michael Bell
Taco Bell’s Litigation Ad Campaign May Require the Company to Take Its Beefs Against Consumer Claims All the Way to Verdict
Product Liability Monitor reported last week that Taco Bell Corporation is facing a consumer rights class action lawsuit in the United States District Court for the Central District of California challenging the company’s use of the terms “beef,” “seasoned ground beef” or “seasoned beef” in its descriptions of the ingredients of various products. On Friday, January 28, Taco Bell promptly and publicly responded to the suit, which alleges that Taco Bell actually uses a “taco meat filling” that does not meet USDA specifications to qualify to be called “beef,” with an advertising campaign that openly acknowledges the pending litigation as well as the possibility of claims by the company against parties who make false allegations concerning its products. An advertisement printed in nine major newspapers across the country reads: “Thank you for suing us. Here’s the truth about our seasoned beef.” The ad describes in detail the ingredients and preparation of the company’s seasoned beef, and indicates that “[t]he claims made against Taco Bell and [its] seasoned beef are absolutely false.” The ad further announces that Taco Bell “plan[s] to take legal action against those who have made false claims against [its] seasoned beef.”
A three-judge panel of the Minnesota Court of Appeals ruled on Tuesday, December 27, 2010, that a class action lawsuit against Altria Group Inc. (formerly Philip Morris Companies Inc.) and Philip Morris Incorporated, the makers of Marlboro Lights cigarettes, may proceed on behalf of all persons who purchased Marlboro Lights in Minnesota for personal consumption from 1972 through 2004—the date of certification of the class. The complaint, which was filed in 2001, alleges that the defendants violated Minnesota consumer-protection statutes by engaging in false advertising, consumer fraud, and deceptive trade practices in connection with the marketing of so-called “light” cigarettes as a healthier alternative to regular cigarettes. The complaint also asserted claims of common-law fraud and unjust enrichment.
Verdict Against Menthol Cigarette Manufacturer for Allegedly Targeting Children May Prompt Similar Suits
Lorillard, Inc., the maker of Newport cigarettes, has been ordered by a Massachusetts jury to pay $71 million in damages to the surviving family members of a Massachusetts woman who sued the company for allegedly targeting African American children in a cigarette marketing and giveaway campaign. The Plaintiff, who died of lung cancer at the age of 54 after smoking Newports for more than four decades, testified prior to her death that she had first received free samples of Newport cigarettes at the age of nine in the early 1960s. The case was the first in which a plaintiff claimed that a cigarette maker targeted an ethnic minority and was the first cigarette liability case ever to reach a favorable verdict for a Massachusetts plaintiff. Some commentators have suggested that the favorable verdict was a result of the plaintiff’s allegations that she was targeted as a child rather than as an adult.
As reported earlier this month in LegalNewsline, Crane Co., a frequent defendant in asbestos cases brought in Philadelphia County courts, submitted a statement to the Court of Common Pleas arguing against the County’s use of a procedure known as “reverse bifurcation” in which juries determine damages first and liability second. In the statement, which was made public in July of 2010, attorneys for the company argued that the procedures used for resolving asbestos claims before the Complex Litigation Center are outdated, citing research by behavioral scientists from the University of Colorado indicating that reverse bifurcation trials tend to prejudice defendants.