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Advocates Circle Firms

Arthur O'Neil Mertz Michel & Brown Co., LPA

 

Barkan Meizlish
Handelman Goodin DeRose
Wentz, LLP

 

Bordas & Bordas, PLLC

 

Caravona & Berg, LLC

 

Cecil & Geiser, LLP

 

Leizerman & Associates, LLC

 

Elk & Elk

 

The Gervelis Law Firm

 

Kisling Nestico & Redick

 

Kitrick, Lewis & Harris Co.,. LPA

 

Landskroner, Grieco & Merriman, LLC

 

Meyer Wilson Co., LPA

 

Murray & Murray Co., LPA

 

Nager Romaine &
Schneiberg Co., LPA

 

Nurenberg, Paris, Heller & McCarthy Co., LPA

 

O'Connor Acciani & Levy, LPA

 

Petersen & Petersen

 

Plevin & Gallucci Co., LPA

 

Rourke & Blumenthal

 

Slater & Zurz, LLP

 

Scott Elliott Smith, LPA

 

Spangenberg, Shibley & Liber

 

Robert J. Wagoner, Co., LLC

 

Tzangas Plakas Mannos Ltd.

 


 

                     

Products liability cases in Ohio have grown increasingly complex and expensive.  OAJ’s Product Liability Section exists to facilitate the free-flow of information between section members to share new ideas, strategies, and expert witnesses through seminars and a list serve.


Product Liability Discovery
By: J. Scott Bowman, Esq.
Few practitioners have the luxury of focusing solely on one area of law, such as product liability. For instance, at my firm, in addition to handling product liability claims, we’ll handle all variety of negligence claims as well as claims for medical malpractice, legal malpractice, 1983 claims, and insurance claims, to name just a few. When initiating a lawsuit, regardless of the topic, the first instinct is always to look back at discovery requests from past cases and then re-caption them for the new case. While there is sure to be useful materials from past cases, product liability cases are often won or lost based on paper discovery. Finding the documents necessary to win your case often takes a great deal of forethought, creativity, and dogged determination. It also requires that we resist the “cookie cutter” approach to paper discovery.
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Ohio Product Liability Cases and Non-"Manufacturer" Defendants
By: Jonathan Stoudt, Esq.
In 2005, the Ohio Product Liability Act, codified at Ohio Rev. Code 2307.71 through 2307.80 and passed as part of Senate Bill 80, created a statutory codification of Ohio’s product liability law, and now serves as the only basis for injury claims based upon defects in manufacturing, design, or inadequate warnings. Pursuant to the plain language of the statutes, these various claims can be brought against the manufacturer of the defective product, or the entity “engaged in a business to design, formulate, produce, create, make, construct, assemble, or rebuild a product or a component of a product.”  R.C. 2307.71(A)(9). In many cases, however, fault for end-user injuries can be tracked to different entities along the supply chain aside from the statutory “manufacturer.”  Potential defendants can oftentimes also include (1) the producers of materials and component parts (such as defective airbags) or, at the other end of the spectrum, (2) sellers or distributors of a finished product.

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Ohio's Product Liability Statute of Repose - Ten years later
By: Rob Miller, Esq.
In 2005 the Ohio General Assembly passed legislation enacting a ten year statute of repose on product liability claims.  Generally, a statute of repose places an artificial time period within which a claim for a specific type of tort may be brought.  In the case of product liability, that time period is ten years from the date in which the product is delivered to the first purchaser.  A consumer who suffers injury caused by a defective product occurring more than ten years from the date of delivery is barred from pursing a claim.

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“THE WHEELS OF JUSTICE”: Mass Torts in State Courts
By: Tim Litzenburg & Joseph Lyon, Esq.
Introduction. Pharmaceutical and medical device mass tort litigation, in most cases, involves consolidated discovery proceedings in federal court pursuant to 28 U.S.C. 1407 (Multidistrict Litigation)(“MDL”).  The trend in mass tort litigation is for non Plaintiff’s Steering Committee lawyers handling individual cases to file cases in the MDL, answer some preliminary discovery and wait the process out.  While not appropriate in all cases, many practitioners overlook viable state court options that may increase efficiency and promote greater justice for their clients and the litigation as a whole.

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Multidistrict litigation: Beyond Civil Procedure
By: Michelle Kranz
If your practice includes medical device or pharmaceutical litigation, you may have had cases “tagged” and moved to an MDL far away from their original jurisdiction. If you have not, stand by; the chance of finding one of your cases “MDL’d” is very high. Either the defense or plaintiffs may initiate centralization by filing a motion before the seven-judge JPML. Both the Plaintiffs’ Bar and the Defense Bar are generally supportive of MDL centralization and seek: 1) a strong, experienced judge in charge, 2) a common playing field on which to develop and implement unified strategies, 3) reduced litigation costs, 4) uniformity in pretrial proceedings, and 5) the opportunity to negotiate and institute a global or unified settlement.

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Low T- "The creation of a disease" a medical literature survery
By: Joseph Lyon, Esq., Cincinnati, OH & Ronald Johnson, Esq., Fort Wright, KY
On June 25th, 2014, the FDA increased the warning on all approved testosterone products to “ensure [the general risk of venous thromboembolism] is described consistently.”1 This warning followed a review of post-market adverse event reports of venous thromboembolism that arose from several biological mechanisms of injury. Importantly, this warning was distinct from the January 31st, 2014 Drug Safety Communication opening an investigation evaluating the risk of blood clots in the arteries that may cause stroke and myocardial infarction. A deeper review of the literature with respect to the mechanism of injury shows remarkable consistency in time intervals with both thrombotic and cardiovascular events, which is consistent with the acute formation of dangerous blood clots in both the venous and arterial system. 

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Generic Drug Full Disclosure – A Solution To The Supreme Court’s Decision In Bartlett 
By: Stuart Scott
Last fall, the Food and Drug Administration (FDA) announced a proposed rule that would change how and when generic drug companies need to update their warning labels. The Federal Food, Drug and Cosmetic Act (FDCA) requires that generic drugs must have the same approved label as the brand-name drug (known as the Reference Listed Drug, or RLD). It has been the position of the FDA that this same “labeling” requirement applies throughout the life of the drug. But the FDA proposed rule would change that by allowing generic drug companies to substantively update their drugs’ labeling, without waiting for the RLD’s labeling to be updated first, to reflect newly acquired information about the drug. This change would make generic drug manufacturers responsible for monitoring the health effects of their drugs and changing labels to reflect new dangers or an increased risk of known dangers. Under the proposed rule, a generic maker’s legal liability for failure to promptly update its drug label with adequate information warning doctors and patients about the risks and dangers of its drug would no longer be shielded by federal preemption – currently afforded the industry by the Supreme Court’s recent landmark decisions in PLIVA, Inc. v. Mensing, 131 S.Ct. 2567 (2011) and Mutual Pharmaceutical Co. v. Bartlett, 133 S.Ct. 2466 (2013). 

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Teaching a new dog old tricks: defeating assumption of rick in product liability claims
By: David R. Grant, Plevin & Gallucci Co., L.P.A., Cleveland/Columbus
For personal injury attorneys, the issue of evidence preservation has undoubtedly come up in your practice.  It is an issue that both plaintiff and defense attorneys face.  For product liability attorneys, especially, this is a crucial and constant concern.  Sanctions can be triggered even where there has been negligent or inadvertent destruction of evidence, not just deliberate destruction.

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Evidence Preservation in Product Liability Claims 
By: David Grant, Esq., Cleveland, OH
For personal injury attorneys, the issue of evidence preservation has undoubtedly come up in your practice.  It is an issue that both plaintiff and defense attorneys face.  For product liability attorneys, especially, this is a crucial and constant concern.  Sanctions can be triggered even where there has been negligent or inadvertent destruction of evidence, not just deliberate destruction. The importance of prompt and proper preservation of relevant, physical evidence in a potential product liability claim cannot be understated. Liability may be established or possibly destroyed entirely based on the information that can be gathered from the physical evidence or from the product itself.  The availability and quality of expert testimony will likely hinge upon the immediacy and quality of the evidence preservation, as well as the quality of product examination and testing performed.

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Parallel Claims And Reporting Requirments: New Motivation For Medical Device And Prescription Drug Manufacturers To Give Adequate Warning
By: Joseph Lyon, Esq., Cincinnati, OH
The United States Supreme Court (‘The Supreme Court”) has recognized that the Food & Drug Administration ("FDA") has limited resources, and that manufacturers "have superior access to information about their [products], especially in the post marketing phase as new risks emerge." Indeed, the FDA requires that a manufacturer of medical devices and pharmaceutical products provide updated reports to the FDA related to adverse events. This reporting requirement is critical to monitor safety issues with the product. And it is critical to the FDA process of issuing updated warnings to physicians and patients, so they can make informed decisions related to the risk of the product. Before the reporting requirements were implemented, a 1986 General Accounting Office (GAO) study concluded that less than one percent of device problems occurring in hospitals were actually reported to FDA. While there has been some improvement, one study concluded that less than 10% of the adverse events are still actually reported.

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Teaching A New Dog Old Tricks: Defeating Assumption of Risk in Product Liability Claims
Is anything one does as part of their job truly “voluntary?”  Leaving aside philosophical considerations of free will or neuroscientific analysis of subconscious decision-making processes, most people would likely answer “no,” in light of recent unemployment rates and the overall state of the economy.  With families to support and bills to pay, forces of economic mobility essentially compel workers to do what their employer commands.  Given this reality, the defense of assumption of risk, and its attendent concept of “voluntariness,” is inapposite for on-the-job injuries, even in the face of Ohio’s assumption of risk statute.
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