Monthly Releases

The Court of Appeals for the Eleventh Circuit held that a party"?s post-trial claim that a jury verdict is inconsistent does not preserve for appeal the separate and legally distinct claim that the verdict was the result of an unlawful jury compromise. In Reider v. Philip Morris Usa, Inc., 793 F.3d 1254 (11th Cir. 2015) the widow of a deceased consumer of tobacco products brought action against the tobacco manufacturer seeking recovery based on the death of her husband. While the jury found that Philip Morris was 5% libel and that the decedent was 95% libel they further that the widow...

The Seventh Circuit Court of Appeals recently held that expert testimony concerning vinyl chloride did not show it had the capacity to cause the harm alleged. In C.W. Ex rel. Wood v. Textron, Inc. (Seventh Circuit August 26, 2015 ___ F.3d ____ (2015) WL 502392698) plaintiffs claimed that their children"?s injuries were due to vinyl chloride which had seeped into the plaintiffs"? underground drinking water. They presented three expert witnesses who claimed there was a causal connection between seepage and the plaintiffs"? illness. The parties agreed that the experts were well-qualified and...

The Court of Appeals for the Tenth Circuit recently held that an expert"?s testimony did not go far enough. In Kirkbride v. Terex, USA, LLC, 378 F.3d. 1343 (10th Cir. 2015) plaintiff was assisting in the repair of a rock crushing machine. He was attempting to dislodge a foreign object from the machine when suddenly it was expelled striking him in the neck and jaw. He alleged that a toggle plate in the machine was defective. The jury awarded him 3.5 million dollars. When the machine encounters uncrushable material, it is the toggle plate"?s job to break and prevent a pressure build-up. The...

The Tenth Circuit Court of Appeals held that the district court could not err in refusing to permit plaintiffs to amend their complaint after the deadline in a scheduling order. In Birch v. Polaris Industries, Inc., ____ F.3d. _____ (10th Cir. 2015), 215 WL 9310564 the estate of an off-the-road vehicle rider who was killed when his vehicle flipped over and the ROPS failed resulting in his death. During the course of the litigation it was discovered that the decedent had hired one, Damron, an employee of the local Polaris dealer and a certified service-repair mechanic to repair his vehicle...

The Court of Appeals for the Sixth Circuit held that affidavits based on "personal knowledge and belief" were not sufficient to prevent summary judgment from being entered. In Ondo v. City of Cleveland, 795 F.3d. 597 (6th Cir. 2015) the plaintiffs brought a ?1983 action against the city, police officers and corrections officers alleging excessive force in violation of the Fourth Amendment, violation of the Equal Protection Clause and intentional affliction of emotional distress under Ohio law. The defendants moved for summary judgment and to strike the affidavits filed by plaintiffs in...

The Court of Appeals for the Seventh Circuit recently held that a Certificate of Insurance was not a prerequisite to additional insured coverage. In Cincinnati Ins. Co. v. Vita Food Products, Inc. 808 F.3d.702 (7th Cir. 2015). The defendant insurer brought an action against a company claiming to be an additional insured under a commercial general liability insurance policy seeking a declaration that it was not obliged to provide coverage to the company. There was conflicting evidence as to whether the oral agreement to add the additional insured was entered into before or after the accident....

The Court of Appeals for the Seventh Circuit in denying relief held that the record needs to show more than post hoc, ergo propter hoc. In Kallal v. Ciba Vision Corporation, Inc. ___ F.3d. ___ (7th Cir. 2-24-2015) 2015 WL 759249 plaintiff used defendants contact lenses and about a week after he started using them he experienced sharp pain in his eyes. He did not stop using them but limited his use to the contacts to times when he exercised. He continued to wear them on and off for a few months. In the meantime, defendant had discovered that a large number of the contact lenses it...

The Court of Appeals for the Seventh Circuit held a mortgage payment made through a website must be credited at the time the borrower approves the payment. In Fridman v. NYCB Mortgage Co. ___ F.3d. ___ (7th Cir. 3-11-2015) 2015 WL 1046296 plaintiff paid her mortgage electronically, using the online payment system on the website of the defendant, NYCB Mortgage Company. She furnished the information required and then by clicking on the required spot authorized the defendant to collect funds from her bank account. Plaintiff did this within the grace period allowed by her note, however,...

The Third Circuit Court of Appeals recently held that unreviewable remand orders can be vacated. In Barlow v. Colgate Palmolive Co., 772 Fd. 1001 (4th Cir. 11-25-2014) plaintiff"?s sued Colgate and numerous other companies claiming that defendants"? products had at some point exposed them to asbestos. Despite Plaintiff"?s joinder of in-state defendants, Colgate removed the cases to federal court on the basis of diversity or citizenship claiming that there was fraudulent joinder of in-state defendants. Plaintiffs moved to remand and the motion was granted by the District Court on the basis of...

The Court of Appeals for the Seventh Circuit held that there was admiralty jurisdiction in a case in which an airplane hit a seawall. In Junhong v. The Boeing Corporation, (7th Cir. 7-8-2015) (2015 WL 4097738) (reporter cite 792 F.3d 805) a Boeing 777 crashed into a seawall that separated the ocean for the runway. Defendant removed the case based on admiralty jurisdiction. The district court concluded that admiralty did not apply because the record did not show that the aircraft was doomed while over navigable water. Defendant appealed and while the appeal was pending the NTSB issued a...

The Seventh Circuit Court of Appeals used internet research by it to rule on a case before it. In Rowe v. Gibson, (792 F.3d 805) a prison inmate sued claiming injury because of a denial of needed medication and, when it was received, a refusal to give it to him when required. Judge Posner, who wrote the majority opinion, vacated a summary judgment based on internet research he did. He said: "In citing even highly reputable medical websites in support of our conclusion that summary judgment was premature we may be thought to be "going outside the record" in an improper sense. It may be said...

The Fourth Circuit Court of Appeals held that the party who failed to produce material pursuant to a discovery response is required to show that the information would not likely have made a difference in the trial"?s outcome. In Kurt West v. Bell Helicopter Textron, Inc., (1st Cir. 8-21-2015) 2014 WL 5176404 plaintiff was injured when a helicopter he was piloting crashed-landed. He sued the manufacturers of the helicopter and the defendants obtained a verdict. After the trial the plaintiff discovered that the defendants withheld discoverable information directly responsive to his document...

The Seventh Circuit Court of Appeals reversed the trial court"?s decision to allow the jury to inspect a ladder which had been introduced by the defendant as demonstrative evidence. In Baugh ex rel Baugh v. Cuprum S.A.DE C.V., 730 F.3d. 701 (7th Cir. 9-13-2013) Plaintiff suffered a severe brain injury when a ladder he was using to clean his gutters buckled and collapsed. His wife brought this suit on his behalf against the manufacturer alleging defective design and negligence. There were no eyewitnesses to the incident and as a result of his injury John Baugh could not testify about what...

The United States Court of Appeals for the Seventh Circuit held that an appeal was frivolous and entered an order to show cause by sanctions should not be imposed. In Boutros v. Avis Rent A Car System, LLC, 802 F.d. 918 (7th Cir. 2015) plaintiff brought an action against the defendant alleging he was fired because of his race and subjected him to a hostile work environment. In addition he claimed retaliation. The jury found for the employer on all claims. Plaintiff dismissed his attorney and his new counsel filed a boiler plate motion for a new trial which the district court denied. The...