Monthly Releases

The Tenth Circuit Court of Appeals held that an Indian Tribe cannot give jurisdiction over tort claims against it to state courts. In Navajo Nation; Northern Edge Casino, 896 F.3d 1116 (10th Cir. 2018) plaintiffs sued the Navajo Nation in a New Mexico state court for injuries received in a casino owned by the Navajo Nation. That court, on the basis of a New Mexico Supreme Court decision, held that the Tribes grant of tort jurisdiction in a compact with the state was valid. The Tribe then filed a declaratory judgment suit in U.S. District Court but that court also held that the Indian Gaming...

The Seventh Circuit held that whether expert testimony is a ?fit? is a question for the court, not the jury. In Owens v. Auxilium Pharmaceuticals, Inc., 895 F.3d 971 (7th Cir. 2018) plaintiff claimed that a drug manufactured by the defendant was responsible for his injury. His expert testified that it was but did so on the assumption that he did as directed. However, the plaintiff testified that he used the medication for less than a prescribed dose of the drug and did not apply the medication as directed. The district court excluded the expert?s testimony and entered summary judgment for...

The United States Supreme Court recently dealt a death blow to forum shopping in a product liability class action. In Bristol-Meyers Squibb Company v. Superior Court of California, San Francisco County, et al 137 S.Ct. 1773 (2017) Five Hundred and Ninety Two (592) non-resident plaintiffs joined Forty Six (46) residents in a class action filed in California alleging that Plavix manufactured by the defendant had injured their health. The defendant filed motions to quash service of summons on the non-resident claims for lack of personal jurisdiction. The California courts denied the motions....

The Seventh Circuit held that the trial court can treat admissions as withdrawn even though no Rule 36(b) no motion to withdraw had been filed. In Tate Lyle Americas, LLC v. Glatt Air Techniques, Inc. __ F.3d. __ (2017) 2017 Westlaw 2982279). The plaintiff sought to recover damages allegedly arising out of a defective part in a machine sold by the defendant. During discovery defendant had responded in the negative to requests for admission which were designed to determine if the defendant had any knowledge that filters, a part of the machine, were defective. However at trial, over objection,...

The Seventh Circuit held that an expert?s improper testimony as to the cause of death violated plaintiff?s substantial rights. In Hall v. Flannery, 840 F3d 922 (2016) the plaintiff?s daughter died following surgery to fix a 17year old skull fracture. Plaintiff claimed that her death was a failure to prescribe anti-seizure medication. Defendants claimed that no seizure had occurred and that a heart-related ailment was the likely cause of death.Three of the defendant?s medical experts testified that a seizure was not the cause of death. One of these, Dr. Ruge, opined that a heart-related issue...

The Seventh Circuit Court of Appeals recently held that in a class action an unaccepted offer to refund the complete purchase price of a car did not moot a purchaser?s claim. In Laurens v. Volvo Cars of North America, _____ F3d ____ (2017), 2017 WL 3598070 the husband of the purchaser of a Volvo car was named as a plaintiff in a class action against Volvo claiming that the car purchased fell far short of the mileage which should be produced by one battery charge. A motion to dismiss was filed on the ground that the husband-plaintiff was not the purchaser and in fact that it was his wife who...

The Supreme Court of the United States held that Rule 4(a)(5)(c) of the Federal Rules of Appellate Procedure would set a thirty (30) day limit for filing an appeal is not jurisdictional.In Hamer v. Neighborhood Housing Services of Chicago, et. al., ____ SC _______, 2017 WL 5160782 (November 8, 2017). Plaintiff sued Defendant for employment discrimination. The trial court entered summary judgment for the Defendant. Plaintiff?s attorney withdrew shortly before the thirty (30) days ran on the time to file an appeal. The trial court, on motion of the withdrawing attorney, entered an Order giving...

The Eleventh Circuit Court of Appeals recently held that the claims of four (4) plaintiffs could be consolidated for trial even though the plaintiffs had distinct backgrounds and also there were causation issues. In Eghnayem v. Boston Scientific Corp., 873 F.3d 1304 (11th Cir. 2017). Plaintiffs sued for injuries allegedly caused by a pelvic mesh manufactured by Defendants. They claimed that there was a negligent product design, negligent failure to warn, strict liability design defect and strict liability for failure to warn. The Defendant objected to the four (4) Plaintiffs being...

The 9th Circuit Court of Appeals held that a lawsuit filed by 26 insurance companies in their capacity as subrogee of 145 insured homeowners did not qualify as a mass action for the purposes of removal. In Liberty Mutual Fire Ins. Co. v. EZ FLO, 877 F. 3d 1081 (9th Cir. 2017). 26 Insurance Companies (?Plaintiffs?) brought suit in state court against Defendant manufacturer of an alleged defective part which was responsible for $5,000,000.00 in damages to the homes of 145 insured homeowners. Defendant removed to federal court on the basis of the suit qualified as mass action because it sought...

The 10th Circuit Court of Appeals held that Continental Motors contacts with Colorado were not sufficient to establish specific personal jurisdiction. In Old Republic Ins. Co. v. Continental Motors, Inc., 877 F. 3d 395 (10th Cir. 2017), the lower court dismissed the case for lack for personal jurisdiction and therefore, the Appellate Court took the allegation of the Complaint as true. On January 9, 2014, an airplane insured by Old Republic crashed in Idaho en route from Colorado where its owner resided. Neither Old Republic or Continental were incorporated in or had its principal place of...

The 7th Circuit Court of Appeals held that a formal motion was not necessary to invoke forum non conveniens. In Mueller v. Apple Leisure Corp., ____ F. 3d ____ (7th Cir. 2018), 2018 WL 563983, one of the Plaintiff?s suffered food poisoning at Defendants? resort in the Dominican Republic. She and her husband filed suit in Federal District Court in Wisconsin where they lived. Their vacation contract had a forum selection clause requiring litigation to be in Delaware County, Pennsylvania.The Defendants moved to dismiss on the basis of the contract?s forum selection clause. Although the...

The 4th Circuit Court of Appeals held that the consolidation of four (4) independent causes of action did not deprive the Defendant of a fair trial. In Campbell v. Boston Scientific Corp., ____ F. 3d ____ (4th Cir. 2018), 2018 WL 732371, four (4) Plaintiffs alleged that they experienced severe complications from a mesh medical device manufactured by the Defendant. Their actions were consolidated in a MDL. At the close of discovery Defendant moved to conduct separate trials for the four (4) cases remaining in the MDL. It argued that the similarities were not predominant but it?s motion was...

The 3rd Circuit Court of Appeals precedential decision rejected the bare-metal defense in an asbestos case. Plaintiffs, widows and deceased veterans brought negligence and strict liability maritime actions against several Defendants, including manufacturers of engines installed on Navy ships. They alleged that their husbands developed cancer due to exposures to asbestos aboard Navy ships. The trial court granted the manufacturers? motions for summary judgment based on the bare-metal defense and held that a manufacturer of a product that does not contain asbestos should not be held liable for...

The 3rd Circuit Court of Appeals found against Plaintiffs on their strict-liability claim because it was not properly raised in their opening brief. In re: Asbestos Product Liability Litigation (No. VI), 873 F. 3d 232 (2017), Plaintiffs sued in negligence and strict liability for the death of their husbands allegedly caused by asbestos. (See Release No. 710 for further facts in this litigation.) The trial court entered summary judgment and the Plaintiffs appealed. In their opening brief, Plaintiffs focused entirely on their negligence claims and attempted to incorporate their...

In modern product liability litigation it is not uncommon for a party to claim that the law of a foreign government should apply. The Supreme Court of the United States in Animal Science Products, Inc. v. Hebi Welcome Pharmaceutical Co., LTD. 138 S.Ct. 1865 (2018) recently ruled that a federal court in determining the application of foreign law is not bound to defer to a foreign government?s official statement of the meaning and construction of its domestic law. Rather, the court should only accord respectful consideration of a foreign government?s submission when ruling on the application...

The Fifth Circuit held that ?deceptive? payments made by plaintiff?s attorney to expert witnesses warranted a new trial. In DePuy Orthopedics, Inc., Pennico Hip Implant Product Liability Litigation, 888 F.3d 753 (5th Cir., 2018) plaintiffs? attorney told the jury that two orthopedic surgeons, who testified as experts, did so because of concern for the plaintiffs. After a 502 million dollar verdict for the plaintiffs, defendant discovered that the plaintiffs? attorney had given a $10,000.00 donation to a charity chosen by one of the orthopedic surgeon before the trial and then paid $35,000.00...