Monthly Releases

The Court of Appeals for the Seventh Circuit dismissed an appeal on jurisdictional grounds because several related counterclaims were still pending. In General Ins. Co. of America v. Clark Mall Corp., ___ F. 3d. ___ ( 7th Cir.2011) decided May 4, 2011. the District Court determined that plaintiff owed a duty to defend defendant in an underlying negligence action under a commercial general liability policy. The District Court entered its duty-to-defend order as a final judgment to facilitate an immediate appeal. The Court of Appeals raised jurisdictional concerns sua ponte at oral argument...

The U.S. Supreme Court decided two cases rejecting state court jurisdiction over defendants where the defendants did not take acts to "purposely avail" themselves of the "privilege of conducting activities within the foreign State or did not have "continuous and systematic contacts, with the forum." The Court rejected a "stream of commerce" argument to justify jurisdiction simply because a product ended up in the foreign State. It held that the defendants must target the foreign State even in a case where the defendants might have predicted its product would end up there. In J. Mcintyre...

The Supreme Court of the United States recently held that state law failure-to-warn claims brought against manufacturers of generic pharmaceutical products are impliedly pre-empted by federal drug regulations. This reversed decisions from the Eighth and the Fifth Circuit Courts of Appeals. In Pilva, Inc. v. Mensing, 2011 WL 2472790, 564 U.S. ____ (2011) the plaintiffs claimed that they suffered neurological injuries as a result of taking the prescription drug Metoclopramide, which is also sold under the brand name Reglan. They alleged that the drugs warnings were inadequate to advise their...

The Seventh Circuit Court of Appeals reminds us that a motion to dismiss for lack of personal jurisdiction can be brought at any time, even after judgment or in an ancillary proceeding. In Philos Technologies, Inc. v. Philos & D., Inc. 645 F.3d 851 (7th Cir., 2011). The plaintiffs sued three Korean defendants for failing to pay for equipment. All of the defendants were served with process in January, 2009 but none filed an appearance or answer to the complaint. Two of the defendants sent a letter to the court saying that they had no involvement in the transaction and they requested a...

The Court of Appeals for the First Circuit held that the District Court abused its discretion in excluding the proffered testimony of an expert because he had not filed a report. In Downey v. Bob's Discount Furniture Holdings, Inc. 633 F. 3d 1 (1st Circuit 2011) plaintiff claimed that the defendant sold them bedbug infested furniture causing various injuries to the plaintiffs. An employee of a pest control service who was a licensed and experienced exterminator made an inspection and opined that the furniture was the source of the bedbug infestation. Plaintiffs initially named the...

The Circuit Court of Appeals for the Seventh Circuit, as it is prone to do, issued another warning to attorneys filing briefs in its court. In Abner v. Scott Memorial Hospital, 634 F. 3d 962 (7th Cir. 2011) the Court issued an order to show cause why the appellants should not be sanctioned for filing an over-sized brief without permission. The appeal involved was a grant of summary judgment to the defendant in a suit under the False Claims Act. The attorney for the appellant certified that the brief complied with the word count limitation requirements of the Federal Rules of Appellate...

The Circuit Court of Appeals for the Seventh Circuit upheld the grant of summary judgment where plaintiffs had failed to designate an expert witness on the subject of a vehicle's design. In Show v. Ford Motor Company, ____ F. 3d ____ (7th Cir. 2011) plaintiffs' 1993 Ford Explorer, while passing through an intersection, was struck in the left rear wheel by another car. The Explorer rolled over and the driver and a passenger were injured. Plaintiffs claimed that the Explorer was defective because its design rendered it unstable. By the time discovery had closed the plaintiffs had not...

The Court of Appeals for the Seventh Circuit, despite the fact that 7 years had passed, held that an amended complaint related back to the original date of filing thus eliminating a statute of limitations defense. In Joseph v. Elan Motorsports Technologies, 638 F. 3d 555 (7th Cir. 2011) plaintiff filed suit for breach of contract. against Elan Motorsports Technologies Racing Corp. Plaintiff discovered that his contract was with Elan Motorsports Technologies, Inc. and sought leave to amend the complaint to change the defendant to that corporation with relation back to the date of the original...

The Court of Appeals for the Seventh Circuit, held that the district court improperly denied plaintiff's motion to take discovery for use in a lawsuit between the parties pending in a German court. In Kulzer v. Biomet, 633 F.3d 591 (7th Cir. 2011) the record showed that plaintiff could not obtain the discovery it needed from the German court system and the defendant failed to show that the German court would have refused to admit any evidence that plaintiff obtained through U.S. discovery. Plaintiff sought discovery pursuant to 28 U.S.C. section1782 which provides that a party to litigation...

The New Federal Courts Jurisdiction and Venue Clarification Act of 2011 became law on January 6, 2012 and contains significant changes in to the removal statute, 28 U.S.C. ? 1441 and codifies existing practices. With respect to the thirty day (30) removal period each defendant has 30 days from his or her own date of service to seek removal. Previously served defendants are allowed to join in or consent to removal by another defendant. To avoid any confusion, the law also codified the requirement that all defendants consent to removal. The new law makes clear that under Section 1332 (a) the...

A new law, the Federal Courts Jurisdiction and Venue Clarification Act of 2011 makes revisions of the general federal venue statue, 28 U.S.C. ?? 1390 et seq. The act clarified venue in cases removed from state courts and said it was not the purpose of the chapter to determine the district court to which a civil action may be removed. It does govern the transfer of an action as removed between districts and divisions of the United States district courts. The act resolved the circuits' split on the question of residency for the purposes of venue and adopted the majority rule that residency is...

The Court of Appeals for the Seventh Circuit affirmed the decision of the District Court in refusing to allow the naming of another expert witness after the original expert had been disqualified under Daubert. In Bielskis v. Louisville Ladder, Inc. 663 F3rd 887 (7th Cir. 2011). Plaintiff was injured when he fell from an alleged defective mini-scaffold manufactured by the Defendant. The District Court granted the Defendant's motion to bar the trial testimony of Plaintiff's expert witness who, among other things, relied upon Google to supply articles supporting his opinion. After the expert...

The Court of Appeals for the Seventh Circuit considered an expert's use of Google to obtain support for his opinion. In n Bielskis v. Louisville Ladder, Inc. 663 F3rd 887 (7th Cir. 2011), the Court of Appeals in upholding the exclusion of an expert's testimony, discussed his use of Google to obtain articles he claims supported his opinion and said, "After Louisville Ladder moved to exclude his testimony, Mizen supplemented his opinion with several articles that he claimed supported his conclusion. At his deposition, he explained that he located the articles by using the Internet search...