The 3rd Circuit Court of Appeals found against Plaintiffs on their strict-liability claim because it was not properly raised in their opening brief. In re: Asbestos Product Liability Litigation (No. VI), 873 F. 3d 232 (2017), Plaintiffs sued in negligence and strict liability for the death of their husbands allegedly caused by asbestos. (See Release No. 710 for further facts in this litigation.) The trial court entered summary judgment and the Plaintiffs appealed. In their opening brief, Plaintiffs focused entirely on their negligence claims and attempted to incorporate their strict-liability claim through a footnote which read:
?By concentrating on [negligence] issues in this brief, Appellants do not waive any issues argued in their original briefs as to Defendants’ liability under [the strict liability claims].?
The Court of Appeals pointed out:
?This attempt to shoehorn in an argument outside the briefs is insufficient to raise an issue on appeal. See John Wyeth & Brother Ltd. v. CIGNA Int’l Corp., 119 F.3d 1070, 1076 n. 6 (3d Cir. 1997) (stating that ?arguments raised in passing (such as, in a footnote), but not squarely argued, are considered waived?); see also Skretvedt v. E.I. DuPont De Nemours, 372 F.3d 193, 202-04 (3d Cir. 2004) (declining to consider arguments not properly raised and therefore waived). In particular, it fails to give fair notice of the claims being contested on appeal. Thus, Devries’s and McAfee’s waiver of their strict-liability arguments means that we will affirm the District Court’s decision to that extent.? (P. 237)