Monthly Releases

The Court of Appeals for the Fifth Circuit recently held that the failure to request an extension of time did not warrant the exclusion of a critical expert's report as a discovery sanction. In re: Complaint of C.F. Bean, LLC, 841 F.3d 365 (5th Cir. 2016) a boater's estate brought a wrongful death action against a dredge-pipe owner and operators whose fishing boats outboard engine struck an underwater dredge-pipe, flipped into the boat, and struck the decedent. The dredge-pipe owner and operators filed a third party complaint for contribution and indemnity against the manufacturer of the...

The Court of Appeals for the Fifth Circuit recently held that the trial court abused its discretion by essentially abdicating its gatekeeping responsibilities under Daubert and failing to exclude the report of an expert. In Neasse v. Ford Motor Company ___ F.3d ______ (5th Cir. 2017) 2017 WL 437665 plaintiff was injured and sued Ford on the theory that a design defect in the vehicle's speed control system prevented the plaintiff from slowing down the vehicle prior to taking his foot off the accelerator. The trial court denied Ford's motion to exclude plaintiffs' expert from testifying and...

The Court Appeals for the Seventh Circuit recently held that two letters were not substantial compliance with the Rule 11 Warning ? Shot/Safe Harbor Requirements. In Northern Illinois Telecom, Inc. v. PNC Bank, N.A., ____ F.3d ____ (7th Cir. 2017), 2017 WL 945092 the defendant obtained summary judgment and then sent two letters to defendant containing settlement demands and threats to seek Rule 11 Sanctions if its demands were not met. Plaintiff moved for sanctions and the district court accepted plaintiffs' argument that the letters amounted to "substantial compliance" with Rule 11(c)(2)...

The Sixth Circuit Court of Appeals held the allegations of a complaint were sufficient under Iqbal and Twombly pleading requirements. In Victoria A. Jackson v. Ford Motor Company, 842 F.3d 902 (6th Cir. 2016) the widow of a motorist who died in a car accident sued the car manufacturer alleging that the car was equipped with a defective electronic power steering system (EPAS) that caused the motorist to lose control of the car. Ford filed a motion to dismiss on the ground that the amended complaint did not sufficiently plead causation. The district court granted the motion and held that the...

The United States Supreme Court held that a discovery sanction awarding fees cannot exceed the amount actually incurred because of the misconduct. In Goodyear Tire & Rubber Company v. Leroy Haeger 137 S. Ct. 1178 (2017) the defendant Goodyear Tire & Rubber Company was sued by the plaintiffs alleging that the failure of a Goodyear Tire caused the family's motor home to swerve off the road and flip over. There was contentious discovery over a period of years and the matter was settled. Some months later the plaintiff's attorney learned that in another lawsuit involving the same tire Goodyear...

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...

A Court of Appeals for the Seventh Circuit recently held that in a defective design case the plaintiff's expert need not test an alternate design. In Baugh v. Cuprum S.A. de C.V.U., ____ F.3d _____ (7th Cir. 2017) 217 WL 1044464, plaintiff claimed that defendant's ladder collapsed because of a design defect and caused him to fall suffering a traumatic brain injury. The jury found for plaintiff and awarded him $11,000,000.00 damages. Defendant appealed alleging, among other things, that the testimony of plaintiff's expert was inadequate to prove a design defect because he failed to test an...

The Seventh Circuit Court of Appeals held that a label was sufficient to comply with the Federal Hazardous Substances Act. In Suarez v. W.M. Barr & Company, Inc. 842 F.3d 512 (7th Cir. 2016) plaintiff was injured when a fire erupted while he was using defendant's product causing injury. Plaintiff alleged a failure to warn, based on violation of Federal Hazardous Substances Act (FHSA) and defective design under Illinois law. The trial court entered summary judgment and on appeal the court affirmed summary judgment on the failure to warn however reversed summary judgment on the design defect...