Monthly Releases

The United States District Court for the Southern District of Florida in a common sense decision held that the defendant need not produce a videotape of the plaintiff taken at the time of an alleged accident until the plaintiff had been deposed. In Donna Parks v. NCI (Bahamas) LTD, 285 F.R.D. 674 (S.D. Fla. 2012) plaintiff filed a suit alleging that she had been injured in a fall on defendants' cruise ship. Plaintiff filed a request to produce videotapes and pictures of the plaintiff. Defendant responded that after plaintiff reported her accident, it preserved the videotape and extracted...

The Court of Appeals for the Seventh Circuit held that the district court did not have to sift through the record and search for admissible evidence which would defeat a summary judgment. In U.S. v. 55443 Suffield Terrace, 607 F.3d 504 (7th Cir. 2010) Defendant filed a Motion for Summary Judgment and plaintiff submitted a meandering 35 page response virtually bereft of citations to evidence. Buried on page 33 of that response were two exhibits which are an inadmissible "summary" of his income and available funds. An issue in the summary judgment was the plaintiff's income deficiency related...

The Eleventh Circuit Court of Appeals reminds us that on a motion to dismiss which involves a determination of venue, affidavits filed in opposition may be considered. In Estate of Tore Myhra v. Royal Caribbean Cruise Lines, Inc., 695 F.3d. 1233 (11th Cir. 2012) plaintiff's decedent estate filed suit seeking damages for injuries aboard a cruise ship and a subsequent death. Attached to the complaint was a document containing a forum selection clause which specifically provided that any litigation was to be brought in the Southern District of Florida. The attachment did not identify the...

The U.S. Court of Appeals for the Eleventh Circuit recently held that a warning in English was adequate as a matter of law. In Farias v. Mr. Heater, Inc., 684 F.3d 1231 (11th Cir. 2012) the plaintiff sued the manufacturer and seller of a portable infrared propane heater alleging negligent failure to warn against the dangers of indoor usage and for a failure to have the warning in the Spanish language. The plaintiff used two of the heaters inside her home and neglected to close the valve on one of the propane tanks before going to sleep. The room caught on fire causing over $300,000.00 in...

The United States Supreme Court refused this month to review a ruling by the Ninth Circuit Court of Appeals that a plaintiff's expert, a non-party, could not appeal a district court ruling which had excluded his testimony. In Newkirk v. Conagra Foods, (Ninth Circuit, 9-5-2012), 493 Fed.Appx. 862 (2012) an unpublished opinion, plaintiff's expert, Dr. David Egiman had sought review of the dismissal of his appeal concerning the exclusion of his testimony from a suit claiming that defendant's popcorn caused a consumer to suffer severe respiratory damage. Egiman claimed in his appeal that the...

The Court of Appeals for the Eighth Circuit while affirming an award of compensatory damages of $630,000.00 reversed a punitive damage award of $1,115,000.00 on the ground that defendant had not deliberately failed to properly warn consumers of the risks of tendon damage linked to its antibiotic Levaquin. In John Schedin v. Ortho-McNeil-Janssen Pharmaceuticals, Inc., 700 F.3d 1161 (8th Cir. 2012) the Court of Appeals affirmed the jury's compensatory verdict on the basis that defendant did not adequately communicate a 2001 warning to the attending physician. The court said that there was...

The Court of Appeals for the Seventh Circuit in affirming the seating of two jurors addressed the difference between juror belief and bias. In Griffin v. Bell, 694 F.3d 817 (7th Cir. 2012) one of the issues for the jury to decide was whether the teenage plaintiff or a police officer was telling the truth. During voir dire one juror, Tracey Carel, testified that if the police officer said one thing and the plaintiff said another she would most likely believe the police officer. The reviewing court referring to other testimony noted that she said that if she was convinced by the evidence that...

The Court of Appeals for the Ninth Circuit determined the meaning of Rule 45(c)(1)'s "undue burden" language as a basis for sanctions. In Mount Hope Church v. Bash Back!, ___ F.3d ____ (9th Cir. 201 2) 2012 WL 5907498 the district court granted a motion for sanctions against plaintiff following the quashing of a subpoena that the Church had served on a third party. A number of individuals affiliated with the defendant had interrupted church services at plaintiff's church. The individuals were demonstrating against the churches anti-gay position. The church had served a subpoena on an online...

The Court of Appeals for the Eleventh Circuit held that the trial court can resolve the adequacy of a warning as a matter of law. In Farias v. Mr. Heater, Inc., 684 F.3d 1231 (11th Cir. 2012) Plaintiff appealed from an adverse summary judgment ruling contending that the district court erred by resolving, as a matter of law, rather than leaving for jury's determination, the question of the adequacy of the warnings and instructions provided with a propane gas heater. Plaintiff had purchased two gas heaters which she claims she unwittingly used inside her home and when she failed to close a...

The Court of Appeals for the Ninth Circuit held that it is error to fail to hold a "Daubert" hearing if requested by one of the parties. In Barabin v. Astenjohnson, Inc.700 F.3d 428 (9th Cir. 2012) (Westlaw citation) the district court excluded the testimony of plaintiff's expert witness on the ground that he had dubious credentials and his lack of expertise with respect to a product manufactured by the defendants which contained asbestos. However during a subsequent pretrial conference the district court reversed its decision to exclude the testimony. The court did this on the basis that...

The Court of Appeals for the Eleventh Circuit held that an affidavit of a third party concerning a statement made by an executive of the defendant was admissible to defeat a motion for summary judgment. In Wright v. Farouk Systems, Inc. ____ F.3d. ____ (11th Cir. 2012), 2012 WL 5948962, plaintiff sued the manufacturer of a hair bleaching product claiming that application of it had burned her scalp resulting in injuries including a skin graft. The defendant filed a motion for summary judgment along with a Daubert motion to preclude the plaintiff's expert from testifying. The district court...

The Court of Appeals for the First Circuit held that a motion to remand in an improperly removed case can be waived if the removal was by an in-forum defendant. In Samaan v. St. Joseph Hospital, et al, ____ F.3d. ____ (1st Cir. 2012) 2012 WL 34262 the two defendants, a doctor and a hospital were both citizens of Maine and improperly removed a case filed in the state court in Maine. The removal was clearly improper because it is permissible only if "none of the...defendants is a citizen of the state in which such action is brought." 28 U.S.C. ? 1441(b) The Court noted that a motion to remand...

The Court of Appeals for the Ninth Circuit, holding that Rule 407 was procedural, applied it in order to exclude a warning issue by defendant subsequent to the decedants death. In Rosa v. Taser Intern., Inc., 684 F.3d 941 (9th Cir. 2012) in August, 2004 Michael Rosa was repeatedly tasered by police officers in order to subdue him during an arrest. Michael died and his death was subsequently linked to metabolic acidosis, a condition which makes sudden cardiac arrest more likely. Michael's parents brought suit against Taser, the manufacturer, asserting that Michael died because Taser had...

The Fifth Circuit Court of Appeals held that an excess insurance carrier is entitled to the same late-notice standards as primary insurers. In Berkley Regional Insurance Company v. Philadelphia Indemnity Insurance Company 690 F.3d. 342 (5th Cir. 2012), plaintiff in the underlying lawsuit was injured in a slip and fall case on the premises of a condominium. The condominium submitted the case for defense and protection to the primary insurance carrier. The condominium also had a excess/umbrella coverage with Philadelphia Indemnity Insurance Company. The primary carrier had a limit of one...

The Court of Appeals for the Sixth Circuit held that a jury in determining future economic damages is not bound to accept the earnings of the plaintiff at the time of the injury as being conclusive of future earning power. In Andler v. Clear Channel Broadcasting, Inc. 670 F.3d 717 (6th Cir. 2012) the jury found defendant liable for injuries the plaintiff sustained at a camp site. Prior to her injury, the plaintiff worked part-time at a child care center and earned between $9,000 and $10,000 a year. She claimed that her injuries forced her to switch jobs and in the years following the injury,...

The First Circuit Court of Appeals approved the "weight of the evidence" methodology to support the conclusion that benzene can cause leukemia. In Milward v. Acuity Specialty Products Group 639 F.3d 11 (1st Cir. 2011) plaintiffs brought negligence claims against the defendant chemical companies alleging that the rare type of leukemia that the husband suffers was caused by his routine work place exposure to benzene-containing products that had been manufactured or supplied by defendants. Plaintiffs' expert, a toxicologist, offered testimony supporting the claims that routine exposure to...

The Eleventh Circuit Court of Appeals held that the language traditionally used in stipulations of dismissal under Rule 41a(1)(A)(ii) concerning the court reserving jurisdiction to enforce a settlement agreement does not confer jurisdiction on the court to do so. In Anago Franchising, Inc.v. Shaz, LLC 677 F.3d 1272 (11th Cir. 2012) the District Court found that it had never dismissed the case and retained jurisdiction to decide the motion to compel compliance with the settlement agreement. The Court of Appeals held that a stipulation in accord with Federal Rule of Civil Procedure...

The United States Court of Appeals for the Second Circuit in affirming sanctions against a law firm under 28 U.S.C.? 1927. In Enmon v. Prospect Capital Corporation, 675 F.3d. 138 (2d Cir. 2012) the U.S. District Court for the Southern District of New York imposed sanctions on a law firm and its attorneys for filing a frivolous appeal and other misrepresentations made during the course of the litigation. The Court of Appeals disagreed with the law firm's assertion that the district court is without authority under 28 U.S.C. ? 1927 to award sanctions against the firm as a whole for the actions...

The Second Circuit Court of Appeals discussed the pleading requirements of the Trombly and Iqbal line of cases. In Anderson News, LLC v. America Media, Inc. (2012 WL 1085948) ____F.3d ____ (2nd. Cir. 2012) the district court dismissed the complaint under Fed. R. Civ. B 12(b)(6) for failure to state a claim on which relief could be granted. The court ruled that the alleged conspiracy was facially implausible under the standards set by Trombly and Iqbal. The Court of Appeals reversed and remanded. In doing so the court noted: "However, to present a plausible claim at the pleading stage, the...

The Third Circuit Court of Appeals ruled that the parties must arbitrate, not litigate, product liability claims against the defendant even though the arbitration forum in defendants terms and conditions was no longer available. In Kahn v. Dell, Inc., 669 F.3d. 350 (Third Circuit 2012) plaintiff in a class action purchased a computer online through defendants website. To complete the purchase, plaintiff was required to click on a box stating "I agree to Dell's terms and conditions of sale." Among the terms and conditions of sale was one requiring binding arbitration administered by the...

The Court of Appeals for the First Circuit held that a failure of the defendants to comply with the Rule of Unanimity for removal can be remedied by the actions of the non-signing defendant. In Samaan v. St. Joseph Hospital, et al, ____ F.3d. ____ (1st Cir. 2012) 2012 WL 34262 one of the two defendants did not sign the notice of removal and the plaintiff moved to remand because all of the defendants did not sign the removal papers nor otherwise consent in writing to removal. The Court of Appeals in affirming the district court's refusal to remand said: "To be sure, the better practice is for...