Monthly Releases

The First Circuit Court of Appeals held that a doctor can rely on reports prepared by others and need not review X-rays and MRI films to give an opinion. In Crowe v. Marchand, 506 F.3d 13 (1st Cir. 2007) a qualified orthopedic surgeon rendered an opinion based on interpretive reports prepared by others of X-rays and an MRI. Plaintiff objected on the basis that the doctor lacked a sufficient foundation for his opinion for his testimony. The issue was whether the doctor, in forming his opinions, relied upon "sufficient facts or data" required by Federal Rules of Evidence 702. In affirming the...

The Court of Appeals for the Seventh Circuit held that a tolling agreement did not prevent a cross-claim from being barred by the statute of limitations. In Camico Mutual Insurance Company v. Citizens Bank, 2007 WL 286533, the parties entered into a tolling agreement which was as follows:"The parties agree that all statute of limitations defenses and other defenses relating to the time that claims are asserted are tolled from the Effective Date through the date of termination of this Tolling Agreement. Nothing contained herein will be deemed to renew, revive, resurrect or reinstate any claim...

The Court of Appeals for the Fifth Circuit recently held that the District Court erred in excluding plaintiff's late designated expert witnesses and granting defendant's Motion for Summary Judgment. In doing so the court discussed four factors that the court should consider in the exercise of its discretion in considering whether to exclude late designated witnesses. In Betzel v. State Farm Lloyds, ____ F.3d ___ (5th Cir. 2007) 2007 WL 603036 plaintiff designated two expert witnesses about three months after the deadline in the scheduling order. The Court of Appeals held that the District...

The Court of Appeals for the Seventh Circuit held that it was proper for the District Court to deny plaintiff's motion for a voluntary dismissal and to subsequently grant plaintiff's motion for judgment on the pleadings on the ground that the suit was barred by the Statute of Limitations.In Wojtas v. Capital Guardian Trust Co. 477 F3d 924 (7th Cir. 2007), the suit was filed in the W.D. of Wisconsin. Plaintiff moved for a voluntary dismissal without prejudice after the defendant filed its motion requesting dismissal based on Wisconsin's two year Statute of Limitations. Plaintiff requested the...

The Supreme Court of the United States recently discussed notice pleading in a complaint and held that plaintiff's statement of the facts was not sufficient to withstand a motion to dismiss. In Bell Atlantic Corporation v. William Twobly 127 S. Ct. 1955 (2007) The Court discussed what a plaintiff must plead in order to state a claim under Section 1 of the Sherman Act. In doing so the Court viewed the decisions it considered precedent in determining sufficiency of the notice pleading permitted by Federal Rule of Civil Procedure 8th (a) (2) and said:"Federal Rule requires only "a short and...

The Court of Appeals for the Seventh Circuit held that for purposes of determining a district court's subject matter jurisdiction, a permanent-resident alien is deemed to have dual citizenship in both the state where the alien is domiciled and in the alien's native nation. In Intec USA, LLC v. Engle, 467 F.3d 1038 (7th Cir. 2006) the plaintiff, Intec, was a limited liability company which had the citizenship of each of its members. One of the members, John Smith, a permanent resident alien, was domiciled in North Carolina and was a citizen of New Zealand. Defendant Engle and some of the...

The Court of Appeals 9th Circuit reversed a jury's 52 million punitive damage award because of numerous errors in the instructions to the jury. In White v. Ford Motor Co. ___ F.3rd _____, 2007 WL 2445952 (9th Cir. 2007) A three year old child was killed when a Ford F-350 pickup truck rolled over him in the family's driveway. The Court of Appeals in a prior decision, 312 F.3rd 998 (9th Cir. 2002), had affirmed a compensatory damage award because of defects in the parking brake, however, it ordered a retrial on punitive damages.The Court of Appeals said the trial court erred on retrial in...

The Court of Appeals for the 10th Circuit found that there does not have to be a showing of bad faith in destroying evidence for a party to prevail on its request for spoliation sanctions. In 103 Investors, L.P. v. Square D Co., 470 F.3rd 985 (10th Cir. 2006) Plaintiff claimed that defendant had failed to label the busway system to warn owners to keep the high-voltage busway free of water and other contaminants. A "busway" is a system of four insulated aluminum bars in an aluminum casing and it ran from the basement to the top floor and fed electricity to each floor. At the trial plaintiff's...

The 10th Circuit Court of Appeals held that the district court is required to enter a separate judgment order following the entry of a dismissal order. In Warren v. American Bankers Insurance Co. of Florida ___ F.3d ___, 2007 WL 3151884 C.A. 10 (Colo.), 2007, October 30, 2007 the district court granted defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of ripeness. A dismissal order was entered, however, the court never entered a judgment on a separate document. Plaintiff filed a notice of appeal and then filed a "motion to reconsider" in the district...

The Court of Appeals, on rehearing, ordered a writ of mandamus to transfer a product liability case from the U.S. District Court for the Eastern District of Texas, Marshall, to the Northern District of Texas, in Dallas. In re Volkswagen of America, Inc. et al ___ F. 3d. ____, 2007 WL 3088142 C.A.5 (Tex.), 2007. Plaintiffs filed the case in the district court in Marshall against the Defendant, Volkswagen, for an allegedly defective seat back which killed a child riding in the back of a Volkswagen Golf vehicle. The accident occurred on a Dallas freeway. In addition to the dead child the father...

The U.S. Court of Appeals for the 8th Circuit held that Plaintiffs' alternate theories of the instrument that caused the fire precluded the application of the Res Ipsa Loquitur Doctrine. In Depositors Ins. v. Wal-Mart Stores, Inc., 506 F3rd 1092 (8th Cir. 2007). The Plaintiffs asserted that a manufacturing defect in either a GE extension cord or a Fletcher lamp cord caused a fire which resulted in extensive property damage. A lamp cord had been plugged into the extension cord which in turn was plugged into an electrical outlet. The fire damaged the extension cord, lamp and the house. The...

The U.S. Court of Appeals for the 7th Circuit held that a tolling statute begins to run when a Voluntary Dismissal in the Federal Court is filed with the Court and not when it is entered into the record.In Jenkins v. Village of Maywood, ____ F3rd _____ (7th Cir. 2007) (decided 11/5/07) the parties on March 9, 2004 filed a joint stipulation for Voluntary Dismissal Without Prejudice. The Court prepared an Order of Dismissal on the same day and the Clerk entered the Order on the docket on March 15, 2004. One year later, on March 15, 2005, the Plaintiff filed a nearly identical suit against the...

The United States Court of Appeals for the 2nd Circuit held that a plaintiffcould not recover pre-judgment interest to the extent that such interest couldresult in an award exceeding the amount prayed for and, in addition, that aprayer for "such other and further relief as the Court deems just and proper" didnot constitute a demand for pre-judgment interest. In Silge v. Mertz, 510 F.3d157 (2nd Cir. 2007), plaintiff obtained a default judgment. The demand clause ofthe complaint sought judgment "in the sum of $1,153,545." The demand made inthe complaint reflected interest through March 31,...

The Court of Appeals for the D.C. Circuit recently held that the plaintiff was not entitled to discovery with respect to defendant's summary judgment motion because he failed to provide any persuasive reason for needing discovery. In Dunning v. Quander, 508 F.3d 8 (D.C. Cir. 2007), the defendant filed a motion for summary judgment supported by nine affidavits. Plaintiff filed a motion under Federal Rule of Civil Procedure 56(f) supported by his attorney's affidavit claiming that in order to oppose the motion for summary judgment, he needed to take the depositions of certain of the affiants....

In Summers v. Delta Airlines, 508 F 3rd 923 (9th Cir. 2007) The Court of Appeals reversed a directed verdict for defendant on the ground that the court did not permit the plaintiff to elicit her key lay witnesses' testimony live, before the jury. The 78 year old decedent traveling alone was a passenger on defendants' airlines. She had requested wheelchair assistance and upon return on the last leg of her return flight plaintiff claimed that a wheelchair was not available and therefore the decedent by walking in the jet way slipped and fell suffering a head injury which was alleged to have...