Monthly Releases

The Court of Appeals for the Ninth Circuit found that the district court improperly remanded on the grounds that the defendants waited too long to have a suit removed to federal court. In Smith v. Mylan, Inc., ____ F3d _____ (9th Cir. 2014) 2014 WL 3805443 plaintiffs filed a wrongful death action in state court suing a number of defendants. The matter could not be removed because the parties were not completely diverse. More than one year after filing the case, the state court dismissed the last remaining non-diverse defendant and two weeks later the remaining defendants removed the matter...

The Circuit Court of Appeals for the Eleventh Circuit confirmed that experts must prove causation. In Chapman v. Proctor & Gamble Distributing, LLC, 766 F.3d. 1296 (11th Cir. 2014) plaintiff claimed that her neurological symptoms were caused by her use of Fixodent denture adhesive each week for eight years. After a Daubert hearing the court excluded plaintiffs"? expert testimony and subsequently entered summary judgment for the defendant. Plaintiffs appealed and the reviewing court affirmed the summary judgment. With respect to the proposed expert testimony the court analyzed the testimony...

The Court of Appeals for the Fifth Circuit held that when some, but not all, litigants have a forum-selection clause and the party having the clause files a motion to sever and transfer its claims to the forum chosen in the contract, the motion should be granted. In In re RollsRoyce Corporation ____ F.3d. ____ (5th Cir. 2014) 2014 WL 7403467 the plaintiff was the owner of a helicopter which sank after skid-mounted emergency pontoon floats failed. Suit was brought against three defendants including RollsRoyce. The warranty covering the RollsRoyce part contained a forum-selection clause...

Almost before the ink was dry on the Supreme Court"?s decision in Dart Cherokee (TAA Looseleaf Release No. 661) the Eleventh Circuit Court of Appeals held that Dart did not apply because the plaintiff in this case contested the amount in controversy. In Dudley v. Eli Lilly & Company, ___ F.3d _____ (11th Cir. 2014) 2014 WL 7360016 the defendant removed the case pursuant to the Class Action Fairness Act (CAFA), attached an affidavit to the notice of removal and as subsequent affidavit in opposition to a motion to remand. The plaintiffs motion to remand said that defendant had failed to...

The Supreme Court of the United States in December 2014 held that proof of the amount in controversy is not required in the notice of removal itself. In Dart Cherokee Operating Company, LLC v. Owens 574 U.S. ______ 2014 WL 7010692 (Dec. 15, 2014) the defendants Notice of Removal alleged that the amount in controversy totaled over 8.2 million. Plaintiff moved to remand the case to the state court, asserting that the removal notice was "deficient as a matter of law" because it included "no evidence" proving that the amount in controversy exceeded 5 million, the amount required by the Class...

The Court of Appeals for the Third Circuit held that the second removal of a case violated the Hundred Day Rule and therefore was untimely. In A.S. v. Smithkline Beecham Corp. 769 F.3d 204 (3rd Cir. 2014) Plaintiffs filed a suit claiming that defendants drug caused birth defects. Defendant removed the case from the state court in Philadelphia to the United States District Court for the Eastern District of Pennsylvania. The district court found that defendant was a citizen of Pennsylvania as was the plaintiff and remanded to state court because there was not diversity of citizenship....

The Court of Appeals for the Eleventh Circuit recently ruled that the trial court erred in excluding evidence of alcohol abuse in a wrongful death case against at cigarette manufacturer. In Aycock v. R.J. Reynolds Tobacco Company, 769 F.3d 1063 (2014) Plaintiff brought a wrongful death action on behalf of her husband alleging that he had contracted lung cancer as a result of his addiction to cigarettes manufactured by the defendant. A jury awarded her compensatory damages in the amount of 5.9 million which it found was a result of his addiction to cigarettes which caused lung cancer and his...

The Court of Appeals for the 7th Circuit upheld a $413 million default judgment against defendants for committing egregious discovery violations. In Domanus v. Lewicki, 742 F.3d 290 (7th Cir. 2-4-2014), plaintiffs were shareholders in KBP and the defendants were either current or former shareholders. The corporation was formed to develop a business park in Poland. Plaintiffs alleged that defendants developed a fraudulent scheme to loot the company by causing KBP to pay out millions of dollars to the defendants for services never performed, and that the defendants stole cash and property....

In an En Banc opinion, the 9th Circuit Court of Appeals decided that the appropriate remedy for a trial court's failure to make findings of relevancy and reliability before admitting expert testimony was reversing the judgment and a remanding for a new trial. The minority strong dissent would have ordered a remand for a Daubert and Rule 702 hearing. In Estate of Barabin v. Astenjohnson, Inc., 740 F.3d at 457 (9th Cir. 1-15-2014), plaintiff was employed by a paper mill and defendant allegedly supplied the mill with dryer felts that contained asbestos. Plaintiff had worked at the mill from...

The Court of Appeals for the Fifth Circuit found that a district court improperly remanded a case on the ground that the defendant had failed to file a notice of appeal. In Humphries v. Elliot Company, ___ F3d ____ (5th Cir. 2014) 2014 WL 3633197 plaintiff filed a suit against various defendants, including DuPont, arising out of his alleged work-related exposure to asbestos. DuPont removed the case to the United States District Court under ?1442(a) and asserted what is known as a "government contractor defense." After the case was removed Elliot was served and shortly thereafter filed an...

The Court of Appeals for the Eighth recently found that a district judge exceeded her authority when she evaluated the strength of experts' testimony. In Johnson v. Mead Johnson & Company, LLC _____F.3d. ______ (2014 WL 2535324) plaintiff brought suit on behalf of an infant who suffered permanent brain damage as a result of being given a formula manufactured by defendant. The defendant moved for summary judgment asking the district court to exclude or substantially limit the testimony of plaintiff's expert witnesses. The district court found that the experts' opinions were not sufficiently...

The Court of Appeals for the Fourth Circuit held that under certain circumstances the trial court can determine as a matter of law whether a party had actual or constructive knowledge of a defective condition which caused injury. In Hoschar v. Appalachian Power Co., 739 F.3d.163 (4th Cir. 2014) plaintiff allegedly suffered a lung infection while working as an independent contractor in defendants' plant. He claimed that the fungus which led to his injury was caused by bird manure in the soil where he was working. A NIOSH Publication on OSHA's website explained that the fungus grew best in...

The Court of Appeals for the Ninth Circuit held that a reviewing court had the authority to make Daubert findings based on the record established by the district court. Further if the reviewing court determines that the evidence would be inadmissible at trial and that the remaining properly admitted evidence is insufficient to constitute a submissible case, it may direct entry of judgment as a matter of law. In Estate of Barabin v. AstenJohnson, Inc. 740 F.3d 457 (9th Cir. 2014) the court admitted expert testimony, over objection, and refused a request for a Daubert hearing. Holding that...

The Court of Appeals for the First Circuit held that plaintiff must prove that a product is particularly dangerous when it is used under certain conditions. In Geshke v. Crocs, 740 F.3d. 74 (1st Cir. 2014) a 9 year old girl was injured when a Crocs sandal she was wearing became entrapped in the side of a moving escalator. Plaintiff claimed that the shoes presented a heightened risk of safety to wearers using escalators and that the defendant manufacturer failed to warn of this risk. The Appellate Court said that the plaintiff had the burden of showing that Crocs posed a heightened risk of...

The Eleventh Circuit Court of Appeals recognized an exception to the rule that courts should look only at the underlying complaint to determine an insured's duty to defend. In Composite Structures v. Continental Ins. Co., 2014 WL 1069253 the Plaintiff filed a declaratory judgment action against the defendant insurance carrier for defense and indemnity under a CGL policy. Both parties filed summary judgment motions. The carrier claimed that notice required by the policy had not been timely. The underlying complaint did not allege when the complaint was tendered by plaintiff to the carrier....

The Court of Appeals for the Seventh Circuit recently held that the plaintiffs' opposition to a motion for summary judgment did not create an issue of material fact because it was based on conjecture and suspicious timing. In Herzog v. Graphic Packaging International, Inc., 742 F.3d. 802 (7th Cir. 2014) plaintiff sued her deceased husband's employer and its insurer to recover benefits under a supplemental life insurance policy under which she was the beneficiary. The defendants claimed that her husband had cancelled the supplemental life insurance policy. The husband had been diagnosed with...

The Eleventh Circuit held that it was proper for the district court to consider an expert's credentials at evaluating whether his methodology was reliable. In Tampa Bay Water v. HDR Engineering, Inc., 731 F.3d 1171 the trial court, after a Daubert hearing permitted an expert's opinion. One of the issues on appeal was that the expert's methodology was faulty. In response to this the Court of Appeals said: "TBW also asserts that HDR's sole argument for reliability was an invocation of Bromwell's impressive credentials. Yet Bromwell's explanation of his method was a logical one, not a mere...

In 2013-14 three appellate courts held that Rule 26(b)(3) does not provide presumptive protection for all testifying expert materials as trial preparation materials. In the last of these, Republic of Ecuador v. MacKay, _____ F. 3d ______ (9th Cir. 2014), 2014 WL 341060 the plaintiff sought file materials of an expert retained by Chevron in ongoing litigation in Ecuador. Chevron argued on appeal that the plain language of Rule 26(b)(3) generally protects expert materials as trial preparation materials prepared "by or for" a party or a parties representative. It contended that expert materials...