Monthly Releases

The Court of Appeals for the Seventh Circuit recently approved the trial court limiting the use of a deposition to discovery purposes only. In Griffin v. Foley, --- F.3d ----, 2008 WL 4072822, C.A.7 (Ind.), September 04, 2008 (NO. 07-2689) the magistrate judge upon motion of the defendant issued an order providing that the deposition of a medical expert should first be taken for discovery, then subsequently be followed by an evidence deposition. The defendant had contended that he should have time to consider the testimony elicited in the discovery deposition before having to cross-examine...

The Court of Appeals for the Sixth Circuit permitted the introduction of settlement evidence to show bias or prejudice of witnesses. In Croskey v. BMW of North America, 532 F.3d 511 (6th Cir. 2008). Plaintiff offered testimony of four witnesses concerning similar incidents with other BMW's to prove a failure to warn claim. To rebut this evidence defendant introduced evidence regarding the dispositions in three of these cases in order to show bias and prejudice. The plaintiff had moved in limine to exclude the evidence and defendants opposed the motion on the basis that the reason the...

The Court of Appeals for the Fifth Circuit affirmed a lower court's sanctions for costs under Rule 11 because the plaintiff improperly pursued a course of action to delay the case and increase the costs of litigation. In Federal Deposit v. Maxxam, 523 F.3d 566 (5th Cir. 208), the court considered the imposition of Rule 11 sanctions for the filing of a frivolous lawsuit as well as for discovery abuses. Rule 11 (b)(1) states that by filing a pleading, motion or other paper, a party is certifying that it is "not being presented for any improper purpose, such as to harass, cause unnecessary...

The Court of Appeals for the Fifth Circuit decided that for the purposes of federal diversity jurisdiction, a limited liability company ("LLC"), it is a citizen of the state of which its members are citizens. In Harvey v. Grey Wolf Drilling Company ___ F.3d ____ (Fifth Cir. 2008) 2008 WL 41 94538 CAJ(La) 2008, the District Court held that 28 U.S.C. ? 1332 (c), which governs citizenship for corporations, should be interpreted to include LLC's because LLC's share the characteristics of a corporation for the purposes of a diversity analysis. The Court of Appeals disagreed with the lower court's...

The Court of Appeals for the Ninth Circuit held that for purposes of diversity jurisdiction the citizenship of a corporation established by tribal law is where that corporation has its principal place of business, not where the tribe has its headquarters. In Cook v. Avi Casino Enterprises, Inc. ____F.3d ____ (9th Cir. 2008) (2008 WL 4890167 (C.A.9 (Arix.)) plaintiff was seriously injured when an employee of an Indian casino crossed the center line of a road and struck his motorcycle. The employee had attended a birthday party where employees of the casino gave her free drinks and then drove...

The Court of Appeals for the Third Circuit considered the effect of dual citizenship on the diversity required for subject matter jurisdiction and held that under two scenarios there was no diversity. In Swiger v. Allegheny Energy 540 F.3d 179 (3d Cir. 2008) plaintiff, a West Virginia resident sued several defendants including a partnership where one of its partners is a dual American-British citizen domiciled in a foreign state. The district court held that it lacked diversity jurisdiction and the Court of Appeals affirmed. The court pointed out the well settled rule when in the context of...

The Court of Appeals for the Fifth Circuit held that allowing Plaintiff's counsel, over objection, to make an argument suggesting a per diem or unit-of-time dollar amount which the jury should award for the loss of enjoyment of life did not constitute reversible error. In Foradori v. Harris, 523 F.3d 477 (5th Cir. 2008), Plaintiff, a customer in a restaurant, got into an argument with an off duty employee. The argument escalated into a fight which took place outside of the restaurant and in the parking lot. Plaintiff suffered injuries which left him a quadriplegic. The jury awarded a verdict...

The Eighth Circuit ruled that supplemental tax returns filed by a Plaintiff were admissible as probative of his character for untruthfulness. In Gaillard v. Jim's Water Service, Inc., 535 F.3d 771 (8th Cir. 2008) Plaintiff was injured while on the shoulder of a road when struck by a vehicle and a trailer driven by the Defendant. After the accident Plaintiff filed supplemental tax returns which claimed additional income as of much as $120,000.00 per year for the previous few years. During those years he declared and paid tax on around $30,000.00 per year. Plaintiff moved to keep out the...

In an interesting decision the Court of Appeals for the 3rd Circuit held that a "true warnings expert" was not required in a case where the contention was that a warning should be given rather than that an existing warning or instruction was ineffective, misleading or otherwise defective. In Jose Pineda v. FordMotor Company, 2008 WL 756698, (3rd Cir. 2008) Plaintiff was an automobile technician who was injured when the rear liftgate glass of a 2002 Ford Explorer shattered while he was working on the vehicle. Plaintiff sued Ford for his injuries originally alleging both a design defect and a...

The Court of Appeals for the Seventh Circuit has held that baseless counterclaims, as well as baseless claims, may subject a law firm to sanctions.In United Stars v. Plastech, 525 F.3d 605 (7th Cir. 208) the Jones Day law firm represented the defendant and filed a counterclaim. The district court found that the counterclaim was baseless and sanctioned Jones Day under 28 U.S.C. ? 1927. The Court of Appeals held that the sanction was appropriate because the defendant and its counsel had not produced adequate evidence to support its counterclaim. In affirming, the Seventh Circuit changed the...

The Court of Appeals for the Third Circuit reviewed the questioning of witnesses by the trial judge and held that in this instance the court did not abuse its discretion. In Chainey v. Street, 523 F.3d 200 (Third Circuit 2008) plaintiff sued for damages arising out of the attack on the MOVE house in Philadelphia. The defendants appealed from a judgment for the plaintiffs and among other things argued that the trial judge's question showed hostility toward the defendants and suggested to the jury in answer to an ultimate issue before them. The trial judge died after the jury verdict and the...