2021
Don’t Show Up Empty-Handed When Using the “Empty Chair” Defense
By Joshua F. Kahn and Daniel L. Adamson – Febuary 4, 2021
The Maryland high court joins several other jurisdictions that require a defendant in complex cases to present expert testimony to generate a jury question as to the fault of a nonparty.
Product Liability Claims We Expect to See as a Result of COVID-19
By Bryan D. Pasciak and Blake A. Angelino – Febuary 4, 2021
Just as important as understanding what claims companies may be exposed to is understanding what claims plaintiffs cannot pursue.
Jurisdictional Discovery for Defendants
By James M. Beck – Febuary 4, 2021
Jurisdictional discovery provides a means to demand, at the beginning of litigation, evidence that the plaintiff used the defendant’s product and did so in a jurisdictionally relevant forum.
2020
The Swine Flu Litigation
By Paul D. Rheingold and Clifford J. Shoemaker – December 7, 2020
The United States is currently on the verge of a national vaccination program for COVID-19. But the last time the country ran a program to immunize every American, in 1976, a very serious side effect began to appear.
When You Don’t Have a Preemption Defense, What Then? Pick a Path or Your Poison
By Dustin B. Rawlin and Monee Takla Hanna – November 5, 2020
The availability of “510(k) preemption” continues to be uncertain, although some conceptual legal inroads to establish impossibility preemption of state law tort claims based on 510(k) clearance have been made.
Tips and Trips for Making the Most of Remote Depositions
By Mary E. Hershewe and Stephanie A Koltookian – November 5, 2020
To help with transitioning from in-person to remote depositions, we advise litigants to reflect on a few areas.
Maryland’s Highest Court Issues Landmark Decision Adopting Daubert Admissibility Standard
By Joshua F. Kahn and Daniel L. Adamson – November 5, 2020
Over 80 percent of states now apply some version of the Daubert test for determining whether to admit expert testimony. Maryland’s adoption has pushed Frye to the brink.
Mediating and Aviating: A Pre-Mediation Checklist for Mediating an Aviation Case
By Frederick Alimonti – November 5, 2020
This five-item list may have some utility across a broader spectrum of cases.
The Rule of Law, and Rule 16, Persist in Multidistrict Litigations
By Pravin R. Patel and Samuel J. Mendez – July 31, 2020
The Sixth Circuit drew on a line of cases in which appellate courts had reined in MDL courts seeking efficiencies outside the scope of the Federal Rules and section 1407.
Before COVID-19 Discouraged Litigation Tourism, There Were Snap Removals
By Monee Takla Hanna and Dustin B. Rawlin – July 31, 2020
Now that the practice of snap removals has been cemented in three circuits and continues to gain acceptance, congressional amendment of the statute may be the only action to stem the tide.
MDL Reform: Why Litigators Need to Persuade an Old Dog to Learn New Tricks
By Hannah R. Anderson and Andrew G. Jackson – July 31, 2020
A brief history of multidistrict litigations and their purpose, the system’s ailments, and suggested paths to reform.
The Illinois Supreme Court Strikes a Blow to Litigation Tourism in the State
By Michael T. Baier – July 31, 2020
Out-of-state corporations will no longer be forced to litigate mass tort or class action claims in Illinois against nonresident plaintiffs whose injuries arose elsewhere.
If at First You Don’t Succeed: Prospects for a Second Removal after Remand
By Monee Hanna and Dustin Rawlin – April 7, 2020
Fighting for removal, even in the face of a remand order, can often result in a second chance in federal court.
The Class Action Fallout from COVID-19: A Proliferation of New Disputes
By Erica Rutner – April 7, 2020
Securities, employment, consumer, and governmental class actions have already been filed.
Recent Civil Discovery Decisions Addressing Genetic Testing
By James M. Beck – April 7, 2020
Genetic testing of plaintiffs will likely become routine—at least in mass tort product liability litigation—within a decade.
Federal Court Dismisses State Law Claims Alleging Conspiracy Between Boeing and Southwest
By Evan Kwarta – April 7, 2020
Passengers bringing the claims asserted that Boeing’s and Southwest’s misrepresentations and omissions concerning the safety of the 737 MAX enabled Southwest to overcharge for tickets.
Avoiding the Snake Pit—Caging “Reptile” Tactics in Court
By James M. Beck – January 16, 2020
A Massachusetts appellate court became the first appellate court to address certain “reptile litigation” tactics in product liability litigation and to determine that they were improper.
The Top Five Drug and Device Developments of 2019
By Hannah Anderson, Isabelle Chammas, Christine Kain, and Patrick Reilly – January 16, 2020
A “negotiation class,” plaintiffs’ legal ads, vaping, multidistrict litigation reform, and Daubert gatekeeping.
Expert Disclosures: Navigating the Distinction Between Retained and Non-Retained Experts
By David L. Johnson – January 16, 2020
Courts have weighed in on the distinctions between retained experts and non-retained experts. Even still, the distinctions are murky.
Six Questions to Consider when Selecting an Expert
By John Livengood – January 16, 2020
Our construction experts shared questions that litigators typically ask them when they are being evaluated as an expert for a matter.
2019
Trends in Selection of Transferee Court in Product Liability Multidistrict Litigation
By Tori Langton – October 24, 2019
Among the factors cited by the JPML in selecting a transferee forum, one stands out as having gained importance to the panel in recent years: the transferee judge.
Outbreak of Severe Pulmonary Disease Linked to E-Cigarette Use: The Makings of a Mass Tort?
By Brendan H. Fitzpatrick and Jessica P. Butkera – October 24, 2019
With the public being advised to stop vaping altogether, and the federal government and several states contemplating outright bans of flavored e-cigarettes, the recipe for mass tort litigation is taking shape.
Capitalizing on Concerns over Ascertainability Regardless of the Forum
By Erica Rutner – October 24, 2019
Despite the deepening circuit split on ascertainability, several strategies are available to defendants to take advantage of difficulties with class member identification.
Book Review: Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation
By Paul Rheingold – October 24, 2019
The unquestionable strength of Professor Burch’s book is its foundation on prodigious data gathering on MDLs.
The MDL Factor: A Survey of Case Law Recognizing MDL
By Peter A. Meyer and Eldin Hasic – September 23, 2019
Docket management as a key factor in making rulings.
Searching for “Clear Evidence” in the Wake of Albrecht
By Elie Biel – July 23, 2019
The ruling failed to provide the degree of clarity that many in the industry had hoped for.
If It Walks Like a Duck: State Consumer Protection Act Litigation Following Product Liability Cases
By Kasey M. Adams – July 23, 2019
Various state attorneys general have filed what are essentially mass tort personal injury claims on behalf of an entire state under the guise of “consumer protection.”
Say It with Me—I Will Not Use Boilerplate Objections
By Donald F. Winningham III – July 23, 2019
Avoid waiver of objections to discovery requests by dumping the practice of boilerplate objections, and follow the Federal Rules.
Are Public Health Agency Positions on Pathogenicity Relevant in Toxic Tort Litigation?
By W. Clay Massey – July 23, 2019
Appellate review of the recent Roundup verdicts will be an opportunity for California appellate courts to address the relevance and admissibility of such opinions by IARC.
Boyle to Burn Pits and Beyond: A Government Contractor Defense Refresher
By Paul V. Majkowski – April 24, 2019
The boundaries of the government contractor defense continue to be tested.
Jurisdictional Discovery: Changing Standards and Burdens
By Sara K. Thompson and Natassia Kwan – April 24, 2019
When is jurisdictional discovery permitted or even required—and other questions left unanswered by Bristol-Meyers Squibb.
A Post-BMS Test for Avoiding “Loose and Spurious” Forms of General Personal Jurisdiction
By James M. Beck – April 24, 2019
If the claimed forum contact could be asserted by any plaintiff, no matter where that plaintiff resides, then it cannot be the kind of contact that causes a claim to “arise from” or “relate to” the forum state.
Multidistrict Litigation Mass Terminations for Failure to Prove Causation
By Paul D. Rheingold – April 24, 2019
One thing that five mass tort dismissals had in common was massive advertising seeking cases, by websites created by lawyers and lead generators.
Peering Behind the Curtain: A Closer Look at Peer Review and Predatory Journals
By Bill Childs – February 27, 2019
Resources and strategies that can help identify such publications.
U.S. Litigation on the Disappearance of Malaysia Airlines Flight 370 Dismissed
By Michael S. Krzak – February 27, 2019
The decision to dismiss on forum non conveniens grounds provides a detailed background of what factors courts look at in foreign air crash cases.
No Heightened Pleading Required for Defenses
By James M. Beck – February 27, 2019
Published decisions in every circuit reject the application of TwIqbal to defenses.
Top Five Drug and Device Developments of 2018
By Christine Kain, Patrick Reilly, Isabelle Chammas, and Joe Price – February 27, 2019
The proposed 510(k) overhaul, admissibility of 510(k) evidence, tort remedies for generic consumers, third-party pressure on plaintiffs, and claim separation in multidistrict litigation.
2018
Oh Expert, Where Art Thou?
By Peter A. Meyer and Eldin Hasic – November 1, 2018
A 52-jurisdiction survey on expert testimony requirements in drug and medical device litigation.
How Plaintiffs Can Adjust to the Supreme Court Decision on Jurisdiction in BMS
By Paul D. Rheingold, assisted by Camila Lopez – October 24, 2018
There are cogent arguments that class action plaintiffs can make to avoid having the Bristol-Myers Squibb decision apply to their cases.
Applying BMS/Bauman in Other Personal Jurisdiction Contexts—The Defense Position
By James M. Beck – October 24, 2018
Bristol-Myers Squibb permits only two types of mass torts aggregation.
First Circuit Joins a Growing Consensus About Claims Seeking “Major Change”
By Abbott Marie Jones – October 24, 2018
When stating claims or asserting defenses, litigants should pay close attention to the changes considered “major” by FDA regulations and other publications.
The Unfriendly Skies: International Carrier Liability for Unruly Passengers
By Paula L. Wegman and John Maggio – October 24, 2018
Whether claims fall within the meaning of an Article 17 “accident” is an issue that repeatedly arises in cases governed by the Montreal Convention.
Tips for Young Lawyers: Mass Torts Offering Opportunities to Rise to the Occasion
By Taryn W. Harper – August 1, 2018
Learn how to capitalize on the opportunity when staffed on a mass tort team.
Five Keys to a Successful GDPR-Readiness Program
By David Manek, Brian Segobiano, Kenric Tom, and Emily Cohen – August 1, 2018
Failure to comply could result in an organization being fined as much as 4 percent of its annual revenue.
Class Action Settlements: Navigating the New Rule 23 Amendments
By Hon. George H. King (Ret.) and Hon. Jay C. Gandhi (Ret.) – August 1, 2018
New amendments to Federal Rule of Civil Procedure 23 effect at least three chief changes starting December 1, 2018. Counsel would be wise to take heed and plan ahead—if they desire court approval without too many detours.
Schwartz v. Honeywell—A Dead-End on the Detour from Dose
By Knight S. Anderson and Joseph A. Manno – August 1, 2018
According to several recent court decisions, the “every exposure” opinion should be excluded because it lacks a sound toxicological basis and reliable scientific methodology.
The Impact of Daimler on Already Complex Jurisdictional Issues in Aviation Crash Cases
By Michael S. Krzak – August 1, 2018
Four recent decisions demonstrate that the “at home” rule announced in Daimler will likely wreak havoc on the litigation of aviation crash cases.
Analyzing Specific Jurisdiction in Class Actions: The Open Questions Left by Bristol-Myers Squibb
By Pravin Patel, Corey Brady, and Daniel Guernsey – August 1, 2018
Competing positions have taken root in different courts regarding the applicability of the landmark case to federal courts and class actions.
Tips for Learning the Learned Treatise Exception
By Adrienne Busby, Jessica Cox, and Emily Steeb – April 16, 2018
How to use Federal Rule of Evidence 803(18), which permits statements from medical literature to be used as evidence.
The Asymmetrical Reality of Serial Class Action Re-Litigation
By Erica W. Rutner and Corey K. Brady – April 16, 2018
Three potential solutions may help mitigate the problem of serial class actions, while still protecting the due process rights of unnamed putative class members.
Third Circuit Courts Highlight Continued Hurdles with Ascertainability and Predominance in Consumer Class Actions
By Emily L. Pincow – April 16, 2018
Defense practitioners should take note of these decisions and others like it, which can serve as a road map to build the strongest factual record to prevail at the certification stage.
Stream-of-Commerce Personal Jurisdiction Dries Up Following Bristol-Myers Squibb
By James M. Beck – April 16, 2018
Courts are starting to realize that BMS authoritatively delineated the standards for case-linked personal jurisdiction.
Tips for Young Lawyers: Fact-Witness Depositions in Mass Tort Cases
By Natassia Kwan and Richard Tabura – January 25, 2018
Some pointers to help your preparation and deposition go more smoothly.
Unavoidably Unsafe PMA Medical Devices
By James M. Beck – January 25, 2018
When it comes to design defect claims, “preemption” is our reflexive reaction, but some judges react negatively to this concept.
Recent Developments in Aviation Litigation: Consumer Protection Utilizing European Union Regulations
By Erika Maurice and Vincent C. Lesch III – January 25, 2018
Stay up to date with this quick rundown of recent cases.
Legal Strategies Unfold as Opioid Lawsuits Rise
By Patrick J. McGrath – January 25, 2018
With the lessons of Big Tobacco echoing in their minds, attorneys for pharma companies are developing legal tactics.
2017
How Data from a Plaintiff’s Wearable Technology Can Make a Difference in Personal Injury Cases
By Clint Cowan, with assistance from the late Elizabeth Smithhart – November 9, 2017
A Fitbit may be the surprise witness to seal your client’s victory.
Seventh Circuit Rejects the “Cumulative Exposure” Opinion as an Inadmissible Repackaging of the Unsound “Each and Every Exposure” Opinion
By Knight S. Anderson – November 9, 2017
Learn why it's still an unreliable opinion based on insufficient and unscientific methodology that cannot be tested.
Depositions: When Can You Still Talk to Your Own Witness?
By James M. Beck – November 9, 2017
This issue is one that, depending on the circumstances, could be the subject of an objection by either side in litigation.
What Can Be Done About Pilot Depression, Suicide, and Other Flight Crew Mental Health Issues?
By Scott Brooksby and Brian J. Alexander – November 9, 2017
Recent events suggest it is becoming even more important to examine ways to identify problems that may affect pilot performance and safety in the cockpit.
Mandamn! Fifth Circuit Rejects Mandamus Relief for Litigation Costs—What Might the Future Hold?
By Matthew Moeller – November 9, 2017
As litigation costs continue to escalate, one can only wonder what standard will need to be met to qualify as an "extreme circumstance."
SCOTUS Gets (More) Serious about Corporate Personal Jurisdiction: Bristol Myers Squibb v. Superior Court
By Bruce Jones, Christine Kain, and Nicholas Nelson – August 15, 2017
Where can a corporate defendant be sued in a mass tort case?
Expert Hot Tubbing: An Opportunity for U.S. Disputes or Australian Folly?
By Patrick J. McGrath – August 15, 2017
The benefits and risks of concurrent expert evidence.
Tips to Mitigate the Risk of a Cybersecurity Breach
By Jonathan E. DeMay, Diana Gurfel Shapiro, and Evan M. Kwarta – August 15, 2017
Learn the risk consciousness and risk mitigation strategies that companies should consider employing.
Nanotechnology: The Next Mass Tort?
By Thomas P. Bernier and Brendan H. Fitzpatrick – August 15, 2017
A survey of recent scientific studies on risks to human health and governmental action.
Defenses for Government Contractors in Combat Zone Cases: The Political Question Doctrine
By Justin T. Green – May 3, 2017
Recent decisions from the Third, Fourth, and Eleventh Circuits.
Bauman Strikes Again: Personal Jurisdiction and Mass Torts in the Show-Me State
By John Schlafer – May 3, 2017
The end of multi-plaintiff mass tort cases in Missouri is likely still a few years away.
The Challenges of Representing Out-of-State Parties in Pharma and Medical Device Litigation
By Hon. Gail Andler – May 3, 2017
Jurisdictional and practical considerations to bear in mind in the defense or prosecution of claims of out-of-state parties.
Glyphosate and the Many Ramifications of an IARC Classification
By Paul V. Majkowski – May 3, 2017
Developments since the agency classified controversial herbicide as “probably carcinogenic to humans.”
Exploring the Limits of Specific Jurisdiction
By Carolyn R. Davis and Allison H. Semaya – March 10, 2017
The products industry weighs in on the potential impact of the California Supreme Court's decision in Bristol-Myers Squibb Co. v. Superior Court.
Recent Developments in Aviation Litigation: Antitrust
By Erika Maurice and Vincent Lesch – March 10, 2017
Two cases alleging price-fixing by airlines are moving forward.
Oral Argument: Striking a Balance Between Judicial Assistance and Zealous Advocacy
By Emily R. Bodtke – March 10, 2017
Tips for guiding the judge toward a reasoned decision that favors your client's case.
Implications of Perez v. Air & Liquid Systems for Post-Daimler Personal Jurisdiction
By Jordon Greenlee and Courtney Ward-Reichard – March 10, 2017
The case is an instructive analysis of general jurisdiction that is largely representative of courts in the Seventh Circuit and elsewhere.
Recent Developments in Aviation Litigation: Forum Non Conveniens
By Erika Maurice and Vincent Lesch – January 6, 2017
Learn the complexities of applying this test when a forum selection clause is involved.
Strategies for Early Dismissal of Meritless Cases
By Maxwell Herman – January 6, 2017
Why leaving them for the judge to deal with can be a bad idea.
The Fundamental Specific Causation Requirement Strikes Again
By Kristin L. Beckman – January 6, 2017
The In re Neurontin case is a reminder that plaintiffs must follow basic discovery rules and meet basic disclosure requirements.
2016
Third-Party Subpoenas and Personal Jurisdiction after Daimler v. Bauman
By James M. Beck – September 21, 2016
Emerging precedent, while still relatively sparse, appears to support application of Daimler to third-party subpoenas.
California Adopts the Sophisticated Intermediary Doctrine but Refuses to Apply It
By W. Clay Massey and Ronnie A. Gosselin – September 21, 2016
The state supreme court ruled in Webb v. Special Electric Co., Inc., a case involving the most toxic form of asbestos.
The Plaintiffs' Perspective: Putting the Notion of "Woodshedding" to Rest
By Danielle Gold – September 21, 2016
Defendants' attempts to restrict communications between plaintiffs' counsel and plaintiffs' physicians remain unsuccessful.
Recent Developments in Aviation Litigation 2016: Preemption
By Erika Maurice and Vincent Lesch – September 21, 2016
Courts continue to grapple with the boundaries of this preempted field and what claims or standards of care fall within it.
Treating Physicians and Causation: How Far Can They Go?
By Andrea Mahady Price – September 21, 2016
The new Rule 26(a)(2)(C) has been accepted by the courts—except when treating the physician's opinion goes beyond the medical records.
Picking Up the Pieces: Litigating after the Big Daubert Ruling
By Joe Winebrenner and Jeff Wojciechowski – June 21, 2016
Litigants on both sides of the bar have a variety of options.
Jenga for Experts: How Much Can One Expert Rely on Another?
By Eric E. Hudson and Richelle W. Kidder – June 21, 2016
There are traps in the rules for the unwary expert who seeks to rely on another witness's underlying reports or work in formulating his or her opinion.
The MMTJA and the Battle to Establish General Personal Jurisdiction in Foreign Aviation Disasters
By Adam J. Spicer and Kasey C. Mitchell – June 21, 2016
A major non-American aircraft manufacturer was not subject to personal jurisdiction anywhere in the country.
Coordination among Federal Prosecutors, Regulators, and Civil Enforcers: Questions Abound
By Adam J. Spicer and Kasey C. Mitchell – June 21, 2016
Two of the most important and consequential questions about the practical effects of the Yates memo stem from some of the memo's most controversial pronouncements.
Mullin' Over Preemption: Lohr, FDA Regulations, and Mullins
By Anonymous – February 5, 2016
Federal preemption of state law is one of the most significant defenses employed by drug and medical device manufacturers defending product liability lawsuits.
How Plaintiffs May Take Advantage of the Federal Rules Changes on Discovery
By Paul D. Rheingold – February 5, 2016
Some new provisions will aid tort plaintiffs, and other changes that may appear to be impediments to full discovery are likely not to be applied in the manner hoped for by early drafters.
Failure to Extrapolate! Seventh Circuit Requires Experts Connect Data with Opinions
By Matthew A. Moeller – February 5, 2016
In toxic-tort matters, experts may be held to a standard more rigorous than what may be allowable under the general Daubert framework in another type of case.
Making the Most of a Matrix-Driven Mass Tort Mediation Session
By Alex Polsky – February 5, 2016
A settlement master's role is not simply to 'get' plaintiffs to take the settlement.
Discoverability of Airline Voluntary Safety Programs in Civil Litigation
By Michael S. Krzak – February 5, 2016
A discussion of several major programs, as well as the reported decisions and recent legislation that further solidify that they are discoverable.
2015
Striking Back—Federal Rule 37(c) and Untimely Expert Reports
By Puja Leekha and Molly E. Flynn – November 10, 2015
In mass tort trials, surprise often takes the form of untimely expert reports.
Clapper and Remijas: A Footnote in the Door for Data Breach Plaintiffs
By Anonymous – November 10, 2015
Young lawyers interested in complex litigation should be aware of Remijas and its likely progeny.
Show It, Don't Tell It: Twenty-First-Century Animation in Air Crash Litigation
By Michael S. Krzak – November 10, 2015
In deciding whether to make use of an animation, it is critical to distinguish between the terms "animation" and "simulation."
Forum Shopping with CAFA—Ninth Circuit Reopens the Starbucks
By Kristin L. Beckman – November 10, 2015
Ninth Circuit practitioners should review these cases carefully.
Handling Aviation Disaster Claims: One Insider's View from the London Market
By Nelson Camacho – July 16, 2015
What's been happening outside of the public view as insurers seek to manage some of the major aviation losses in recent years.
Expert Evidence at Class Certification and the Role of Daubert
By M. Joseph Winebrenner – July 16, 2015
Does the standard apply at this stage, and if so, to what extent?
Increasing Coordination among Federal Prosecutors, Regulators, and Civil Enforcers
By Adam J. Spicer – July 16, 2015
The lines between civil litigation and white-collar criminal law have increasingly become blurred.
Are Juries Really Such a Wildcard Compared with Judges?
By Leslie Ellis – July 16, 2015
Judges are people, too.
Insurance for Product Recall Expenses
By Syed Ahmad, Kyle Sampson, and Patrick McDermott – July 16, 2015
Product recall policies can be industry-specific and even specific to the underlying cause of the recall.
Does Merely Registering to Do Business in a State Create General Jurisdiction by Consent?
By James M. Beck – April 30, 2015
The initial results of a year of post-Bauman litigation suggest that registration to do business is too thin a reed to support general jurisdiction.
The Evolution of the Common Benefit Order
By Karen Woodward and Matthew A. Reed – April 30, 2015
The scope of CBOs has broadened significantly in recent years, imposing more and more burdens on defendants.
Advice to Young Attorneys from a New In-House Lawyer
By David L. Schwan – April 30, 2015
Always strive to make your value as an attorney clear and vital.
Charlton: Causation Clobbers Canadian Class
By Cheryl Woodin and Court Peterson – April 30, 2015
The reasoning in Charlton prescribes that there can be no workable methodology where the consideration of every individual's medical history is necessary.
Bringing the Cyber War to the Medical Device Battleground
By Karen Woodward and Mary Beth Buckley – January 22, 2015
FDA and stakeholders hone in on the security of interoperable medical devices.
Medical Discounts Produce Judicial Discord
By James M. Beck – January 22, 2015
With the increasing prevalence of third-party insurance, the recovery of medical expenses is not as straightforward as it used to be.
The Significance of Bankruptcy in Mass Torts Litigation
By M. Joseph Winebrenner – January 22, 2015
An introduction to standing and judicial estoppel for young lawyers.
The Need for the Supreme Court to Revisit Daubert, Again
By Christopher D. Barraza – January 22, 2015
The Court missed an opportunity to resolve a glaring circuit split and restore consistency in the federal courts.
The Liability Atmosphere Awaiting the Commercial Human Spaceflight Industry
By James M. Beck – January 22, 2015
What can the pioneers in this fledgling industry expect to confront?
2014
Nationwide Class Certification after Mazza v. American Honda Motor Co.
By Munjot Sahu – October 9, 2014
Material differences precluded California law from applying to all class members in Mazza.
Will Evaporated Cane Juice Be Sweet for Class-Action Plaintiffs?
By Mark Mansour, Jonathan Berman, Emily K. Strunk, and Stephanie L. Resnik – October 9, 2014
A guide for young defense lawyers.
Revised Rule 45: Making "Open Court" Only a Video Link Away
By Michelle M. Rutherford – October 9, 2014
A Louisiana district court takes an interesting interpretation of the rule.
Identifying and Defending a Claim for Educational Malpractice
By Donald F. Winningham III – October 9, 2014
A few practical tips will help determine what kind of claim you are actually dealing with.
Punitive Damages Involving New Jersey Defendants
By Ellen Relkin and Justin Reiter – October 9, 2014
New Jersey Multicounty judges as well as multiple federal circuits and district judges have ruled discordantly.
Sense Ahead: What Is In Store for Food/Beverage Labeling Claims?
By Vivian Quinn and Tracey Ehlers – August 20, 2014
Conveying a sense of what lies ahead regarding class certification and ways courts and the legislature may approach claims involving food and beverage labeling.
Judicial Quasi-Class Actions
By Deborah A. Elsasser and David L. Schwan – August 20, 2014
Managing MDL and mass-tort litigation through judicial control over the appointment of lead counsel, attorney fees, and cost-shifting.
Strategically Selecting Case-Specific Deponents in Personal-Injury Mass-Tort Litigation
By M. Joseph Winebrenner and Christine Kain – August 20, 2014
A guide for young defense lawyers.
Peer Review and Beyond—A Deep Dive into the Data
By Cynthia D. Driscoll, Thomas S. Jones, and Charles H. Moellenberg Jr. – August 20, 2014
Developing the tools to analyze scientific studies critically is essential.
Rule 45 and You: The Young Lawyers' Guide to Federal Subpoenas
By David L. Schwan – June 10, 2014
The revised rule clears up much confusion.
What's New? Treatment of NTSB Reports and Underlying Findings
By Timothy S. Tomasik and Patrick J. Giese – June 10, 2014
Addressing the admissibility of government reports under Federal Rule of Evidence 803(8)(A)(iii) in the context of aviation litigation.
Decisions Limiting Toxic-Tort Claims: Aberration or Potential Trend?
By Andrew J. Scholz – June 10, 2014
New York stands out as one of the most difficult jurisdictions for defendants and their insurers.
EU 261 Class-Action Lawsuits in Illinois
By Deborah A. Elsasser – June 10, 2014
The path to final resolution appears for the airline defendants.
Enforcing an Ecuadorian Judgment Against a U.S. Company in Ontario
By Cheryl Woodin and Jonathan Chen – June 10, 2014
The Ontario Court of Appeal decides a case affecting the enforcement of foreign judgments against foreign defendants.
Attempts to Outsmart the FDA Could Lead to Mass Torts
By Deborah L. Shuff – March 19, 2014
Learn from the mistakes of Valor Medical.
A Privileged Position—Guidance for Nonwaiver Agreements and Orders
By David L. Schwan – March 19, 2014
Achieve great results through your "reasonable" efforts.
Book Review: The Class Action Fairness Act: Law and Strategy
By Linda Mullenix – March 19, 2014
This ready reference on CAFA should prove invaluable to any class-action practitioner.
2013
Costa Concordia Actions: Florida Courts' Differing Views on Venue
By Deborah A. Elsasser, Nicholas Magali, and Philip R. Weissman – November 13, 2013
Some claimants have the opportunity to try their claims in Florida while others will litigate in Italy.
The CSIA: Reforming the TSCA with Modern and Robust Science
By Paul V. Majkowski – November 13, 2013
The proposed Chemical Safety Improvement Act seeks to modernize the decades-old Toxic Substances Control Act.
Increasing Your Firm Profile: Practical Tips for Young Lawyers
By David L. Schwan – November 13, 2013
Life for a new litigator contains many opportunities for professional development.
Whose Statement Is It Anyway? Gossiping Agents and the Hearsay Rule
By Timothy S. Tomasik – November 13, 2013
Principals, beware! A gossiping agent can doom your case.
Removal to Federal Court in Forum Defendant Cases
By Ellen Relkin and Brian Hardingham – August 30, 2013
Clever defense attorneys can use the forum defendant rule to their advantage.
Crash Reports: What Will the Jury Hear?
By Timothy S. Tomasik and Kimberly M. Halvorsen – August 1, 2013
The admissibility of government reports at trial pursuant to Federal Rule of Evidence 803(8)(A)(iii).
Restrictions on Tort Liability of Governmental Entities
By James B. Eisenberg – August 1, 2013
Suing after a natural disaster or terrorist attack is not as easy as it may seem.
The Every-Exposure Theory Reviewed
By Richard C. Beaulieu – August 1, 2013
Plaintiffs may be on shaky ground when proving causation of asbestos exposure.
Attempts to Avoid Forum Non Conveniens Rejected
By Mark R. Irvine and Aghavni V. Kasparian – August 1, 2013
Challenges to FNC in two recent air-disaster cases were denied in two different federal circuits.
Arbitral Decisions Upheld under the FAA
By Crystal R. Axelrod and James Hatchitt – August 1, 2013
Takeaways and practice tips, particularly in the context of complex litigation.
It's a Pom Wonderful Life—Or Is It?
By Karen Woodward – June 26, 2013
The reach of the Ninth Circuit's decision has not been as broad as anticipated.
Spoliation Considerations When Dealing with Social Media Evidence
By Kristin Caballero Tiffany – June 26, 2013
Attorneys must be aware of the use of social media as well as its pitfalls particularly during discovery and litigation.
End in Sight for Long-Running Forum Non Conveniens Battle
By Deborah A. Elsasser – June 26, 2013
The plaintiffs in In Re: West Caribbean Airways continue their search for a proper forum.
Guidance to Young Lawyers as They Enter the Cloud
By David L. Schwan – June 26, 2013
Document storage has come a long way from floppy disks.
Make Sure Your Expert Speaks Our Language
By Timothy S. Tomasik and Jordan Lebovitz – February 28, 2013
Qualified trial counsel must instruct retained expert witnesses as to the required elements for all demonstrative and visual evidence used at trial.
Has the Asbestos Gravy Train Reached the End of the Line in Illinois?
By David A. Lester – February 26, 2013
A recent ruling may put an end to the state's swell of asbestos litigation.
Improving Diversity: Where Do I Begin?
By Rudy Perrino – February 26, 2013
Diversity numbers in both the ABA and the profession are disappointing.
Squeezing Buckman out of Pom Wonderful
By Matthew A. Reed – February 26, 2013
The Northern District of California has unduly narrowed preemption or may have replaced it entirely.
Social-Media Advertising Tips for Young Lawyers
By David L. Schwan – February 26, 2013
Go from personal to professional.
Squeezing Buckman out of Pom Wonderful
By Matthew A. Reed – February 26, 2013
The Northern District of California has unduly narrowed preemption or may have replaced it entirely.
Res Ipsa Loquitur in Aviation Litigation
By Lea P. Valdivia – February 26, 2013
The doctrine is useful for plaintiffs, as "planes do not just fall out of the sky."
Removal Statute Amendments and Proposed Changes to Rule 45 Subpoenas
By Nicholas Magali – February 26, 2013
Removal procedure has been clarified while FRCP 45 is ready for an overhaul.
2012
Design Defect Claims in the Wake of PLIVA, Inc. v. Mensing
By Christopher Windover – November 13, 2012
One unresolved issue is the extent to which other state law tort claims—aside from failure-to-warn claims—fall within Mensing’s preemptive reach.
'Hybrid Witnesses' and Federal Rule of Civil Procedure 26
By Andrea Mahady Price and Kristin L. Beckman – November 13, 2012
Recent changes were made to Rule 26’s reporting requirements, affecting the discoverability of attorney-witness communications and work product for “hybrid” witnesses.
Drawing the Line Between Class Action and Quasi-Class Action
By Tammy B. Webb and Ina D. Chang – November 13, 2012
As courts try to effectively adjudicate multidistrict litigation and global settlements, quasi-class action emerges as a means of greater regulatory control.
Testing Limits of the Adequate Alternative Forum in Aviation
By Deborah Elsasser – November 13, 2012
The applicability of the forum non conveniens doctrine is one of the most hotly contested issues in aviation accident litigation.
The Rules on Removal in Multiple-Party Cases: A Reprise
By Marie E. Chafe and Peter M. Durney – August 16, 2012
Later-served defendants no longer bound by the choices of earlier-served defendant.
OFAC's Effect on Air Carriers and Insurers in Air Disasters
By Daniel Correll – August 16, 2012
When evaluating a claim, careful consideration must be given to the status of all of the parties to determine if payment is considered a transaction in blocked property.
Complying with the California Transparency Supply Chains Act
By Matthew A. Fischer – August 16, 2012
The broad scope of the act means it will impact many companies located outside of California that have sales in the state or supply companies that do business there.
Disclosure Obligations for Unretained Experts
By Courtney A. Solomon – August 16, 2012
How much and what type of disclosure is sufficient under the new Rule 26(a)(2)(C)? The burgeoning case law has begun to provide answers.
Young Lawyers: Practice Tips from the Judge's Law Clerk
By Crystal R. Axelrod – August 16, 2012
Lawyers who are great at their job make it as easy as possible for judges to do their job.
Young Lawyers: Technology Is an Advantage in the Courtroom
By Crystal R. Axelrod – May 21, 2012
Here are three reasons why lawyers should use PowerPoint as a litigation tool whenever possible, along with a few practice pointers to ensure effective delivery.
Denial of Cert in Cases with Federal Preemption Defenses
By Deborah A. Elsasser – May 21, 2012
The defenses raised in these cases dealt with the preemption of state-law tort claims by the government-contractor defense and the aircraft owner/lessor immunity statute.
The Recognition of "Ordinary" Mass Toxic Torts
By Paul V. Majkowski – May 21, 2012
As litigation between Chevron and residents of Ecuador continues, how the "ordinary" mass-tort or toxic-tort case will be addressed could take on greater importance.
The Path to Aggregate Settlements
By Chad R. Hutchinson and Donna Brown Jacobs – May 21, 2012
Attorneys representing multiple parties must understand the ethical and practical considerations involved in proposing or accepting aggregate settlements.
Fracking's Alleged Links to Water Contamination and Earthquakes
By Barclay Nicholson, Kadian Blanson, and Andrea Fair – May 9, 2012
The jury is still out on the environmental effects of hydraulic fracturing.
Arranger Liability under CERCLA after Burlington Northern
By Andrew J. Scholz and Matthew D. Cabral – March 21, 2012
Few arranger-liability cases are summarily decided, even though the plaintiff must prove that the defendant intended to dispose of hazardous materials at a Superfund site.
Do "Private Settlements" Exist in Mass-Tort Litigation?
By Paul D. Rheingold – May 21, 2012
In one way or another, a judge has played a role in all mass-tort settlements, even some that might be characterized as "private."
The Evolving Burden for Removal under CAFA
By Laurie A. Novion and Ina D. Chang – March 21, 2012
Circuits have come in line on such issues as who bears the burden on removal and what evidence can be used to meet this burden, but other issues remain.
Criminalizing Aviation: Placing Blame Before Safety
By Judith R. Nemsick and Sarah Gogal Passeri – March 21, 2012
Following an aviation disaster, counsel must provide prompt advice concerning appropriate communications with safety investigators and criminal prosecutors.
Factors For and Against MDL Coordination
By John P. Lavelle Jr. and Thomas V. Ayala – March 21, 2012
The terms of 28 U.S.C. § 1407(a) are of limited value in predicting whether the Judicial Panel on Multidistrict Litigation is likely to initiate an MDL in a particular instance.
A Pilot Program for Complex Litigation
By Kristofer S. Riddle – March 21, 2012
The SDNY takes steps to stem unwieldy case-management issues.
2011
Releasing Joint Tortfeasors
By Douglas J. Pepe – December 28, 2011
Knowing the rules and taking them into account can be important when drafting settlement agreements.
Federal Rules of Evidence: Expert Opinions Based on Inadmissible Evidence
By Douglas J. Pepe – November 8, 2011
When experts testify at trial in federal court, their opinions must have a sufficient basis.
Federal Court's Injunction Against State Court Certification Is Reversed
By Jeffrey A. Holmstrand – November 3, 2011
Smith v. Bayer's procedural history provides a good snapshot of the state of mass tort litigation where cases are pending in multiple systems.
Increased Protection for Communications with Experts under Amended Rule 26
By Christopher R. Christensen and Robert Alaimon – November 3, 2011
Expert testimony has evolved into a complex, costly, and important aspect of pretrial discovery.
Preparing for and Taking an Effective Deposition, Part 2
By Ladd Sanger – November 3, 2011
Knowing how to preserve the deponent's testimony and to address improper objections made by opposing counsel is essential.
Choice of Law Governing Asbestos Claims
By David T. Biderman and Judith B. Gitterman – November 3, 2011
Parties should not assume that the law of the forum will govern substantive issues in the case.
Canada's Consumer Product Safety Act: A Catalyst for Cross-Border Mass Tort Litigation?
By Gary Wolensky, Anne Marie Ellis, and Kelly Regan – November 3, 2011
New legislation creates an environment ripe for increasing class-action activity across the U.S.-Canada border.
The Food Safety Modernization Act: Another Law of Unintended Consequences?
By Gary Wolensky, Anne Marie Ellis, and Kelly Regan – November 3, 2011
The FSMA is intended to allow the FDA to focus more on preventing food safety problems rather than reacting to problems after they occur.