Monthly Releases

The 10th Circuit Court of Appeals in an unpublished decision affirmed the District Court's exclusion of the Plaintiffs' expert, the well known Steven Syson, and the subsequent entry of summary judgment. In Graves v. Mazda Motor Corp. 10-6011 (10th Circ. 12-15-2010) Mrs. Graves was injured when she thought she placed the car's shifter in "park" but in fact put it in "reverse". When she stepped out of the car, it rolled backwards and ran over her. Plaintiff's expert, Mr. Syson, did not provide any data or industry standard, or conduct any testing, to confirm his view that merely described how...

The Court of Appeals for the Seventh Circuit accepted an appeal from a remand order of a district court and reversed that decision. In Pettitt v. Boeing Co., 606 F 3rd 340 (7th Cir. 2010), the district court Sua sponte remanded the case to the Circuit Court of Cook County because the record did not reflect that all defendants consented in a timely fashion to the removal. The Court of Appeals pointed out that despite Section 1447(d) of the United States Code which prevents appeal of a remand order, it did have jurisdiction because the district court lacked the statutory power to enter a...

The Court of Appeals for the 2nd Circuit held that a filing of an Amended Complaint resets the clock for Defendants seeking sanctions under Rule 11 and that the Plaintiff must be given twenty-one days to correct or withdraw the pleading before a Motion for Sanctions is formally presented to the District Court. In Lawrence v. Richman Group of CT LLC, 620 F3d 153 (2nd Cir. 2010), Plaintiff sued for commissions owed on the sale of securities. Defendants gave notice and filed a Motion for Sanctions on the ground that a First Amended Complaint failed to plead a contract that was legal and...

The United States Court of Appeals for the Seventh Circuit denied a Motion to File a Bill of Costs instanter because the deadline for filing had been missed by 2 days. In In re: Gallo, 585 F.3d. 304 (7th Cir. 2009) the court entered judgment in Mr. Gallo's favor on July 20, 2009 and awarded him costs. Pursuant to Federal Rule of Appellate Procedure 39(d) a motion to tax costs must be filed within 14 days after entry of judgment. Gallo's motion to file the Bill of Costs instanter was filed 2 days late. In an effort to show good cause, Gallo explained that the Bill of Costs was late because he...

The Court of Appeals for the Seventh Circuit held that an internet provider of a product (cigarettes) may be subject to a state court's jurisdiction under that states long-arm statute. In Illinois v. Hemi Group, LLC, 622 F3d. 754 (7th. Cir. 2010) the district court denied defendants motion to dismiss for lack of personal jurisdiction finding that the internet transactions sufficed to establish personal jurisdiction over the defendant in Illinois. The sole question on appeal was whether the district court in Illinois may properly exercise personal jurisdiction over the defendant. In affirming...

The Supreme Court of United States held that disclosure orders adverse to the attorney-client privilege do not qualify for immediate appeal under the collateral order doctrine. In Mohawk Industries, Inc. v. Carpenter, 130 S. Ct. 599 (U.S. Sup. Ct. 2009) plaintiff moved to compel the defendant to produce information which defendant claimed was protected by the attorney-client privilege. The District Court agreed with defendant that the information was protected by the attorney-client privilege but concluded that it had waived the privilege. The District Court declined to certify the order for...

The United States District Court for the Central District of Illinois barred plaintiff's experts, including a bio-mechanic from giving expert opinions on medical causation. In McCann v. Ill. Central R.R. Co. 711 F. Sup. 2d 861 (C.D. Ill. 2010) plaintiff was a former locomotive engineer who sued the defendant claiming that repetitive traumar/motion ' type injuries to his neck and wrist, resulting in a carpal tunnel syndrome, were caused by the railroad's negligence. A bio-mechanic, Tyler Kress, testified that plaintiff experienced years of spinal degradation and that there was evidence of...

The Court of Appeals for the 6th Circuit sua sponte reviewed diversity jurisdiction and remanded the case to the district court to resolve the jurisdictional issue by determining the citizenship of the plaintiff. In Star v. Centimark Corp., 596 F3d 354 (6th Cir. 2010) plaintiff appealed the entry of summary judgment against it and in its jurisdictional statement said only that the district court had jurisdiction. Defendant failed to include a jurisdictional statement in its brief, thus indicating its satisfaction with plaintiff's statement. The Court of Appeals said that it must rely on the...

The Court of Appeals for the Ninth Circuit held that under the facts in the case a motion for new trial challenging a zero (0) damages award is inconsistent with liability was not waived and the matter was remanded for consideration of the merits of the new trial motion.   In Kode v. Carlson, 596 F. 3d 602 (9th Cir. 2010) plaintiff sued for injuries when he was a passenger in a trailer struck by defendants automobile. Plaintiff sought economic and non-economic damages totaling one million dollars. Plaintiff admitted that she was negligent and that her negligence caused Plaintiff to...

Court of Appeals for the Eighth Circuit held that a statement made some four (4) to five (5) minutes after witnessing an accident was an excited utterance under Rule 803(2). In Brunsting v. Lutsen Moun. Corp. 601 F 3d 813 (8th Cir. 2010) plaintiff was injured in a skiing accident when he struck a tree and suffered a serious head injury. Because of his injury he could not remember any details of the accident. An employee of the defendant was on a ski lift and witnessed the accident. She continued on up the lift to alert defendant's personnel to the accident. She then went back down the...