Target Data Breach Lawsuit Brought By Consumers Allowed to Proceed

U.S. District Judge Paul Magnuson has cleared the way for consumers to sue Target over the retailer's late 2013 massive data breach. The breach became public near the height of the holiday shopping season. Judge Magnuson did dismiss claims by plaintiffs in certain states but largely denied Target's request to toss the proposed class action lawsuit altogether. What was dismissed were claims brought under deceptive trade practices laws in three states, claims under data-breach notice laws in nine states after the plaintiffs withdrew them in another three, negligence claims brought under five states' laws, and a class action that could not be maintained for claims under consumer-protection statutes in another 10 states.

The ruling followed a similar decision by Judge Magnuson allowing banks to move forward with a lawsuit to recoup money they spent reimbursing fraudulent charges and issuing new credit and debit cards because of the breach.

Magnuson rejected Target's argument that the consumers lacked standing to sue because they could not establish any injury. Judge Magnuson wrote in his Order, "Plaintiffs' allegations plausibly allege that they suffered injuries that are 'fairly traceable' to Target's conduct…”

Target reported that at least 40 million credit cards were compromised in the breach, which may have resulted in the theft of as many as 110 million people's personal information, such as email addresses and phone numbers.

The case is In re: Target Corporation Customer Data Security Breach Litigation, U.S. District Court, District of Minnesota, No. 14-md-02522.

Alabama Supreme Court Ruling on Rule 27

In Ex parte Ferrari, 2015 Ala. LEXIS 13 (Ala. Feb. 6, 2015), Ferrari was employed by DR Horton as a land-acquisition manager for its Gulf Coast division.  DR Horton began to suspect that Ferrari was supplying confidential information to third parties and was receiving, through his wife and/or LLCs created by the couple, monetary compensation.  DR Horton conducted interviews of Ferrari and a third party which conferred what was suspected.  Instead of immediately suing Ferrari, DR Horton filed a petition pursuant to Rule 27(a) of the Alabama Rules of Civil Procedure seeking to depose Ferrari and his wife, to propound written interrogatories and to request production of documents, including tax returns.  DR Horton acknowledged that it had justification to commence a lawsuit but needed the requested discovery in order to determine all of the causes of action which might be asserted.

In the opinion, the Alabama Supreme Court held that a trial court must conduct a hearing before permitting any pre-suit discovery and that Rule 27(a) did not permit the propounding of written interrogatories.  Instead, the rule allows for depositions, independent medical examinations and production of documents.

More significantly, the Alabama Supreme Court overruled the holding in Ex parte Anderson, 644 So. 2d 961 (Ala. 1994), that Alabama’s Rule 27(a) does not limit pre-action discovery to perpetuating evidence.  This overruling “returns” Alabama law to the law in other jurisdictions.  The purpose of Rule 27(a) is to preserve or perpetuate testimony or evidence which might be lost before a lawsuit may be commenced, for example, when a party or witness is near death, requiring the conducting of a deposition prior to such death, or when there is a “real” fear that documents or physical things might be destroyed.  Rule 27(a) should not be used as an “investigative” tool to determine (or verify) if there is a viable cause of action or a device to help determine what causes of actions to assert.  As noted in the opinion:  “DR Horton did not offer in its petition, and it does not attempt to offer in response to the Ferrari defendants’ mandamus petition, any reason to perpetuate the testimony of the Ferrari defendants.  Instead, DR Horton openly stated in its Rule 27(a) petition and at the March 25, 2014, hearing that it sought preaction discovery to determine what other causes of action it may have against the Ferrari defendants besides breach of fiduciary duty against Peter Ferrari.”

The Alabama Supreme Court gave no significance to DR Horton’s suggestion that allowing such discovery would save time and resources in a litigation.  Obviously, the Alabama Supreme Court determined that Rule 27(a) has a very specific purpose, namely, perpetuating testimony or evidence which is in real danger of being lost, and that Rule 27(a).  Rule 27(a) was never intended as a device by which a party may obtain information in order to decide whether to institute a lawsuit.

What the opinion leaves as unclear, however, is if Rule 27 can be used to issue a subpoena to obtain documents that may only be obtained via subpoena. For example, a law enforcement agency will not produce a traffic homicide report without a subpoena and the Alabama Department of Forensic Sciences will not release an autopsy without a subpoena. Rule 27 subpoenas are oftentimes a vital tool in helping to determine, unlike in Ex Parte Ferrari where the party wanted to know how many causes of action they could claim in their Complaint, but if there is even a cause of action.

Plaintiff Wins Jury Trial Against DePuy Over ASR Hips

On February 3^rd, a jury in Tulsa County, Oklahoma returned a $2.5 million compensatory damage verdict in favor of plaintiff Andrea Smith and against defendants DePuy Orthopaedics and DePuy International. 

Mrs. Smith was a bilateral DePuy ASR XL hip patient who had both hips revised. She had significantly elevated metal ions before the revision surgeries.  DePuy contended at trial that the devices were not defective and that she needed to have revision surgeries because of a "toe-in" gait on one side and a frayed medical cable (used to repair a fractured femur) on the other.

The jury found in favor of plaintiff in her claim that the ASR was defectively designed, but found for DePuy on the claims for negligence and failure to warn. Jurors found no basis to award punitive damages against DePuy. The votes were 10 to 2 (9 votes were needed).

The trial was presided over by Tulsa County District Court Judge Linda G. Morrissey. DePuy was allowed to present limited evidence pertaining to the FDA, and Judge Morrissey permitted the plaintiff to present evidence about the recall and about events that occurred after the date of plaintiff's original implant surgeries.  The trial lasted three weeks.

This is the second verdict in favor of an ASR plaintiff.  In both cases, the plaintiff prevailed on the claim that the device was defective, but lost on the negligence claim. Neither jury awarded punitive damages.  A third ASR case went to trial and resulted in a defense verdict based on a specific causation defense.

If you or a loved one have had hip replacement surgery and have been implanted with a defective DePuy hip, you may be entitled to compensation for medical bills, pain and suffering, lost wages and other injuries. Our firm is currently investigating claims for those people who have been implanted with DePuy hip replacement devices, both ASR and Pinnacle. If you would like a free case evaluation, please contact Booth Samuels at toll free 1-866-515-8880 or at booths@pittmandutton.com.