Monthly Releases

The Supreme Court of the United States recently resolved a split among the circuits on whether an unaccepted settlement offer can moot a complaint. In Campbell - Ewald, Co. v. Gomez, 136 S.Ct. 663 (2016) Gomez was the name plaintiff in a class action alleging that an advertiser violated the Consumer Protection Act by instructing or allowing a third-party vendor to send unsolicited text messages to his cellular phone. The defendant made a full offer of settlement to Gomez which he rejected. The district court granted summary judgment in favor of the defendant and on appeal the United States...

The United States Court of Appeals for the Second Circuit held that defendant's presence in the State of Connecticut was not sufficient to afford a jurisdiction and that the defendant's registration in the state to do business and the appointment of a agent for the service of process did not constitute consent to personal jurisdiction for any and all cases brought there. In Brown v. Lockheed Martin Corp., ___ F3d _____ (2nd Cir. 2016), 2016 WL 641392 plaintiff sought to recover for injuries suffered by her father as a result of asbestos exposure sustained by him during his work as an Air...

The United States Court of Appeals for the First Circuit recently held that an expert offering opinions on safer alternative design in a product liability matter does not need to perform hands on testing of the alternative design to ensure his testimony is sufficiently reliable. In Berardo A. Quilez-Velar v. Ox Bodies, Inc., ___ F. 3d ____ (1st Cir. 2016) 2016 WL 2621133, Plaintiff brought a claim for strict product liability against a dump bed manufacturer and claimed the underride guard on the back of its dump bed was negligently designed and manufactured. At trial, the court allowed...

The Court of Appeals for the Fifth Circuit held that the court erred in permitting expert testimony without performing a Daubert inquiry. In Carlson v. Bioremedi Therapeutic Systems, Inc., 822 F.3d 194 (2016) plaintiff brought suit on three alleged products liability claims. Before trial plaintiffs filed a motion to exclude the testimony of a defendants' expert. The district court denied the motion without explanation and the expert testified. In holding that the district court abused its discretion by permitting the testimony the court said: "We need to decide whether Dr. Durrett was...

Judge Richard Posner of the Seventh Circuit Court of Appeals used a concurring opinion to express his views against the use of legal jargon and convoluted rhetoric in court opinions. In U.S. v. Dessart, ___ F.3d _____ (2016, 2016 WL 2893267) Judge Posner concurred in a decision affirming the conviction of a Wisconsin resident Shontay Dessart. Among opinions criticized were those of the Supreme Court of the United States. That portion of his opinion is well worth reading. Judge Posner summed up saying: "To repeat what I said at the outset, I don't disagree with the decision to affirm the...

The Seventh Circuit Court of Appeals held that when an insured sues an insurer an injured party named as a defendant may be dismissed by the Court of Appeals to preserve subject matter jurisdiction. In Altom Transport, Inc. v. Westchester Fire Ins. Co. 823 F.3d 416 (7th Cir. 2016) an insured filed a declaratory judgment in state court seeking coverage in a suit by a third party who claimed he was owed money. The insurance carrier removed the suit to federal court. In addition to the insurance carrier the insured also had named the third party because it believed it was required to name as a...

The Supreme Court of the United States held that a federal district court has a limited inherent power to rescind a jury discharge order and recall a jury in a civil case for further deliberations after identifying an error in the jury's verdict. In Dietz v. Bouldin, 136 S.Ct.1885 (2016) the parties stipulated as to medical expenses of $10,136.00. The jury returned a verdict in plaintiffs' favor but awarded $0 in damages. After the verdict the judge discharged the jury and the jurors left the courtroom. The Judge then realized the error in the $0 verdict and ordered the clerk to bring back...

The Eighth Circuit Court of Appeals recently held that a mower manufacturer is not under a duty to supply optional equipment as standard equipment on mowers that it manufactures. In Parks v. Ariens Company, 829 F.3d 655 (8th Cir. 2016) Timothy Parks died when the riding mower he was operating fell off the edge of an embankment and rolled over on top of him. His wife brought suit claiming that the defendant was negligent for failing to equip the machine with a roll over protection system (ROPS). A ROPS was offered as an optional feature by the manufacturer and the plaintiff contended that it...

The Fifth Circuit Court of Appeals held that the exclusion of unreliable expert testimony effectively ends a product liability case. In Sims v. KIA Motors of America, Incorporated, ____ F.3d. ____ (5th Cir. 2016) 2016 WL 5831464 Harry Sims, Sr. was a passenger in a 2010 KIA Soul which was in a traffic accident. The fuel tank ruptured and Sims was killed in the resulting fire. Plaintiffs alleged that the Soul's fuel tank was defectively designed and offered expert opinions to support their allegation. The Court of Appeals reviewed the testimony of each expert and concluded that the experts...

The Fifth Circuit Court of Appeals held that the court's failure to make a Daubert examination of the defendant's experts qualifications was grounds for a new trial. In Carlson v. Bioremedi Therapeutic Systems, 822 F3d 194 (5th Cir. 2016) plaintiff suffered severe burn injuries to his feet allegedly due to a defective device used by a chiropractor. At trial plaintiff's experts made a causal connection between the device and the plaintiffs' injury. The defendants called the chiropractor whose office had done the treatment using the device. Over objection he testified that the device does not...

A judge in the Ninth Circuit Court of Appeals blasted an attorney for submitting an oversized brief along with a motion for leave to file an oversized brief. In Saul Garcia Cueveas v. James D. Hartley, Warden, Avenal State Prison 835 F3d 892 (9th Cir. 2016) A California assistant attorney general asked for leave to file an oversized brief at the same time that the brief was tendered to the court. Two judges on the panel granted the motion. However, the third panel member Judge Alex Kozinski descended. He said in part:A judge in the Ninth Circuit Court of Appeals blasted an attorney for...

In a negligent spoliation case plaintiff is only required to show reasonable probability that he would have won his negligence action had he been able to produce the alleged defective item. In Schaeffer v. Universal Scaffolding and Equipment, LLC, 839 F3d 599 (7th Cir. 2016). Plaintiff was injured when a defective piece of scaffolding struck him on his head. The court first sustained summary judgment against a defendant-manufacturer because plaintiff could not produce the actual defective piece. However, the court reversed a summary judgment against defendants-employer based on a spoliation...