Products and Toxic Tort Liability

Carlton Fields has represented major manufacturing companies in product liability litigation in state and federal courts nationwide for more than 30 years. Our members have handled hundreds of jury trials, mass actions and class actions on behalf of leading manufacturers that operate in a wide variety of industries, including automotive; tobacco; pharmaceutical and medical device; chemical; sports equipment; aviation; and food, dietary supplement, and personal care products.

Our work with expert witnesses has given us an in-depth understanding of numerous medical and scientific fields, including epidemiology; oncology; pulmonology; cardiology; radiology; pathology; toxicology; and issues dealing with calculating exposures, risk assessments, and dose response.

Through our experience, we have gained significant knowledge in numerous substantive legal areas, including preemption; bifurcated trials; the supremacy clause of the U.S. Constitution; turncoat employees; and entitlement to, and constitutional and statutory limits on, the amount of punitive damages.

We routinely work closely with lawyers from our appellate and trial support practice group. Many members of this group have earned national recognition for their product liability work, which has included representing manufacturers at trial and/or on appeal in more than 30 states. The group, which includes former law clerks from numerous federal and state appellate courts, including the U.S. Supreme Court, also has extensive experience addressing cutting edge issues in high-exposure product liability litigation. We often collaborate with these lawyers at the outset of cases to address legal issues as they arise, and they participate at trial, assisting with jury instructions, directed verdict, preservation of the record, and related issues.

Our practice group has also been instrumental in shaping Florida product liability law. For example, we:

  • Clarified Florida law to limit claims of emotional distress to cases where plaintiffs can prove the impact sustained was sufficient to create a physical manifestation.
  • Worked on the committee redrafting Florida standard jury instructions and co-authored minority report to Florida Supreme Court opposing proposed changes to Florida product liability instructions. 
  • Spearheaded the effort to amend Florida law on crashworthiness in automotive product liability cases, legislatively overturning the Florida Supreme Court’s decision in D’Amario v. Ford Motor Co., 806 So. 2d 424 (Fla. 2001).

Several of our attorneys are members of the Product Liability Advisory Council (PLAC), a non-profit association of leading manufacturers and product liability defense counsel. We frequently author amicus briefs on PLAC’s behalf. Additionally, our attorneys hold leadership positions in various committees of the Defense Research Institute, ABA Section of Litigation and ABA Tort, Trial and Insurance Practice Section

REPRESENTATIVE MATTERS BY INDUSTRY

Tobacco

  • Our experience includes representing cigarette manufacturers in individual smoking and health cases, two class actions, and a civil action brought against the industry by the State of Florida. We have also defended cigarette manufacturers in environmental tobacco smoke (ETS) cases stemming from the settlement of the Broin class action, which was brought by flight attendants alleging injury due to ETS exposure onboard aircraft.

Aviation

  • Represented Swiss aircraft company and its Colorado corporation/U.S. subsidiary in multiple lawsuits filed in Florida. Obtained dismissals for lack of personal jurisdiction in numerous cases confirming Swiss company was not subject to general personal jurisdiction under Florida’s long arm statute. Defeated transfer motions related to these dismissals. Obtained dismissal in federal court by enforcing contractual forum selection clause in underlying insurance policy, requiring action in Germany; Obtained Eleventh Circuit affirmance after briefing and argument.
  • Defeated class certification of Florida Deceptive and Unfair Trade Practices Act (FDUTPA) and implied warranty claims in federal court cases involving claims against airplane part manufacturer and dental implant manufacturer; Defense of automotive class actions has led to several appellate decisions making certification of such claims very difficult in Florida.

Food

  • Represented major food product manufacturer in defense of a national class action in California federal court challenging the labeling of fruit snack products. The firm was responsible for class certification analysis and briefing.
  • Represented retail supermarket chain in consumer class action removed to federal court under the Class Action Fairness Act of 2005 and defeated remand to state court. Heretick v. Publix Super Markets, Inc., ---- F. Supp. 2d ----, No. 8:11–cv–2438–T–23TBM, 2012 WL 251977 (M.D. Fla. Jan. 26, 2012).

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Pharmaceutical and Medical Device

  • Represented Medtronic in several cases regarding its Infuse product, a Class III prescription medical device, and alleged off-label use of the product. We defended the cases based on express preemption by the Medical Device Amendments to the Federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. § 360k(a)and implied preemption.
  • Defended Class-III medical device manufacturer of implant approved by the U.S. Food and Drug Administration pursuant to product development protocol process. Obtained dismissal of state law claims based on express preemption by the Medical Device Amendments to the FDCA.

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Other Manufacturing and Raw Materials

  • Served as trial and appellate counsel in two cases addressing the applicability of the fraudulent concealment exception to Florida’s statute of repose in product liability cases. 
  • Defended heater manufacturing company in a claim for inadequate warnings and obtained summary judgment that manufacturer had no duty to provide product warnings in Spanish and English. The Eleventh Circuit affirmed, holding that Florida law did not obligate defendants to provide Spanish-language warnings, absent evidence that heater was specifically marketed in any way to Spanish-speaking customers in Florida through use of Hispanic media.

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