Monthly Releases

The Third Circuit held that a plaintiff must allege an injury in order to come within Article III?s requirement that a plaintiff can factually establish an "injury in fact" traceable to the defendant's conduct and can be redressed by a judicial remedy. This standing requirement derives from Article III?s limitation of the judiciary's role to resolving "cases" and "controversies." In Estrada v. Johnson & Johnson, part of the In re: Johnson & Johnson Talcum Powder Products Litig., 903 F.3d 278 (3d Cir. 2018) plaintiff claimed that use of Johnson & Johnson?s Baby Powder can lead to an increased...

In In re Murphy-Brown, LLC, Case No. No. 18-1762 (4th Cir. October 29, 2018) a trial judge issued a gag order in a case over conditions at hog farms. Plaintiffs claim that the hog farms give rise to undue amounts of odors, insects, and pests, not to mention the noise and debris generated by raising hogs and shipping them for sale. In total, the Master Case Docket includes more than 20 lawsuits and more than 500 plaintiffs. Juries had awarded a half a billion dollars against the company in the ongoing nuisance trials. Judge W. Earl Britt had issued the gag order against lawyers, litigants and...

In New Spin Sports, LLC v. Arrow Electronics, Inc., No. 18-1666 (December 3, 2018) (N.D. Ill., E. Div. Affirmed and reversed in part and remanded), the 7th Circuit revived a suit over by a sports electronics company alleging its supplier sold it defective parts, saying that while five of the seven claims were rightfully barred, the fraud claims can proceed. The District Court did not err in dismissing as time-barred plaintiff's breach of contract claims alleging that defendant provided defective components to build plaintiff's "SwingSmart" devices, where instant contract was primarily...

In Salinas v World Houseware Producing Co. et al., Case Index No. 107662/2010 (N.Y. Supreme Court, App. Div., Nov. 20, 2018), the plaintiff sought damages for personal injuries sustained while using a pot holder. The defendants moved for summary judgment, which was granted by the trial court. The main issue below was that the plaintiff?s deposition testimony as to how the accident occurred was inconsistent with the opinions of her expert on deposition. The summary judgment was affirmed on appeal, with the Court stating, simply and quite succinctly: Where the conclusion of an expert relies...

2018 Federal Rule and Local Rule Changes Saturday, December 1, 2018 At its September 2017 meeting, the Judicial Conference approved amendments to the Federal Rules of Civil and Criminal Procedure. The amendments became effective December 1, 2018. A complete set of the amendments are available at: http://www.uscourts.gov/sites/default/files/2017-10-04-Supreme-Court-Package_0.pdf The amendments mainly deal with electronic filing and service, and thus impact various Local Rules, so please check with the District Courts where you practice most often for any changes. Civil Rule 5(b)(2)(E) and...

In Rivera v. Allstate Insurance Co., No. 17-1649 (7th Cir. 2019) the Seventh Circuit determined that the fired plaintiff portfolio managers did not allege a concrete injury sufficient to establish standing to assert violation of section 1681a(y)(2) of Fair Credit Reporting Act (FCRA). Their claim arose out of contention that the defendant-employer failed to provide them with copy of investigation report generated by defendant's attorney that was used to support their terminations. Defendant was required to only give oral summary of said report after their terminations, and as such, any...

In Hutchison v. Fitzgerald Equipment Co., Inc., No. 18-2203 (7th Cir., December 14, 2018), the Seventh Circuit affirmed and held that the District Court did not err in granting defendant's motion for summary judgment in plaintiff's negligence claim alleging that defendant, which had preventative maintenance contract with plaintiff's employer on forklift used in plant, was negligent in failing to warn plaintiff's employer to install backup alarm on said forklift, where said forklift that was operated by plaintiff's co-worker backed over plaintiff's foot. Record showed that forklift was not...

In Rivera v. Allstate Insurance Co., No. 17-1649 (7th Cir. 2019) the Seventh Circuit determined that the fired plaintiff portfolio managers did not allege a concrete injury sufficient to establish standing to assert violation of section 1681a(y)(2) of Fair Credit Reporting Act (FCRA). Their claim arose out of contention that the defendant-employer failed to provide them with copy of investigation report generated by defendant's attorney that was used to support their terminations. Defendant was required to only give oral summary of said report after their terminations, and as such, any...

On January 8, 2019, the Supreme Court decided Henry Schein, Inc., et al. v. Archer & White Sales, Inc., No. 17-1272. The Federal Arbitration Act allows parties to agree by contract that an arbitrator decide threshold questions of arbitrability, rather than a court. While some federal courts have embraced by a ?wholly groundless? exception to resolve arbitrability questions even in the face of such an agreement, a unanimous Court held that lower courts must respect the parties? choice to delegate arbitrability questions to the arbitrator. The contract in this dispute provided, in relevant...

On February 25, 2019, the Supreme Court decided Yovino v. Rizo, No. 18-272, 586 U.S. ____ (2019). There, the U.S. Supreme Court vacated a pay-equity ruling by a federal appeals court because the circuit judge who wrote the opinion was no longer alive when it was issued. Judge Stephen Reinhardt of the 9th Circuit had written the decision for the en banc court before his death last March. The decision was issued the following month. Five living justices joined Reinhardt?s opinion, while five others wrote or joined concurrences that were based on different reasoning. ?The upshot is that Judge...

On February 26, 2019, the Supreme Court decided Nutraceutical Corp. v. Lambert, No. 17-1094, 586 U.S. ___ (2019). In this case, Lambert filed a class action, alleging that Nutraceutical?s marketing of a dietary supplement violated California consumer-protection law. On February 20, 2015, the district court decertified the class. Under Federal Rule of Civil Procedure 23(f), Lambert had 14 days to ask for permission to appeal the order. Instead, he moved for reconsideration more than 14 days later, on March 12. The district court denied the motion on June 24. Fourteen days later, Lambert...

On March 19, 2019, the Supreme Court decided Air and Liquid Systems Corp. et al. v. Devries, case number 17-1104, ___ U.S. ___ (2019). In this case, the Court handed a victory to sailors who claim they developed mesothelioma in a decision that potentially broadens the liability of manufacturers of so-called bare metal products to which other companies later added asbestos. The high court charted a middle ground in reaching its conclusion that, under maritime law, a manufacturer has a duty to warn when its product needs another part and the manufacturer knows that part is likely to be...

In Lance Belville et al. v. Ford Motor Co., case number 18-1470, (2019 U.S. App. LEXIS 8838).the U.S. Court of Appeals for the Fourth Circuit bounced an entire plaintiffs? class action because their experts failed to test their theories regarding a sudden acceleration defect in the vehicles? software under real world conditions. In doing so, the Fourth Circuit affirmed U.S. District Judge Robert C. Chambers of West Virginia. "Here, the district court properly considered appropriate factors and did not abuse its discretion in excluding the experts' opinions based on their lack of relevance...

In USA v. Spectrum Brands, Inc., Case No. 18-1785 (7th Cir. May 9, 2019), the Seventh Circuit affirmed a Wisconsin District Court Judge regarding the continuous nature of Section 15 reporting requirements for product defects under the Consumer Product Safety Act. This case arose out of a line of Black & Decker SpaceMaker coffee makers with defective handles that were sold and distributed by Spectrum?s subsidiary, Applica, beginning in 2008. By May 2009, Applica had received 60 reports of broken handles and four reports of burns. According to the CPSC, these reports triggered Applica's...

Citing a lack of standing, the Eleventh Circuit threw out an insurance class action in A&M Gerber Chiropractic LLC v. GEICO General Insurance Co., 2019 WL 1746869 (11th Cir. Apr. 19, 2019), leaving unsettled an ?important issue? related to personal-injury-protection (PIP) benefits under Florida?s Motor Vehicle No-Fault Law. The named plaintiff, Gerber, purported to represent a class of healthcare providers that had been assigned PIP benefits under an ?80/20 policy? subject to varying limits on reimbursement for beneficiaries with or without an ?emergency medical condition.? Gerber sought a...