Proximate Cause

News & Analysis as of

California Grapples with Landslide Coverage Issues

In California, after a period filled with a major drought, fires, and now predicted heavy rains, we anticipate that this season could bring significant landslide/earth movement losses. Potential insurance coverage to...more

High Fire Season Followed by El Nino Sets California Policyholders on Collision Course With Property Insurers

Regular readers of the San Francisco Chronicle saw two familiar headlines in the September 10, 2015 issue of that paper. The first – “Northern California wildfire explodes in size”[1] – would not have been unusual on any...more

The Third Circuit Gives the Green Light to RICO Plaintiffs Seeking to Recover Payments for Prescription Drugs

This week, the Third Circuit altered the legal landscape for civil Racketeer Influenced and Corrupt Organizations Act (RICO) claims against pharmaceutical companies. The ruling in In re Avandia Marketing, Sales Practices &...more

Rhode Island Supreme Court Decision Serves As A Reminder To Engage Necessary Experts Early In The Case

A recent Rhode Island Supreme Court decision serves as an important reminder of the need to engage essential expert witnesses early in a case and, at a minimum, before discovery responses are due....more

The Cat Fights Back: 7th Circuit Discusses Cat's Paw Theory Post-Staub

In 2011, the United States Supreme Court made the"cat's paw" theory of liability significantly easier for employees to prove. An employee can establish a cat's paw theory of liability in an employment discrimination suit when...more

Making Sense of the Daubert and Summary Judgment Orders in A Metal-on-Metal Hip Implant Bellwether Case

We have not posted for a while—that day job can really get in the way sometimes—so we agreed to tackle the ridiculously long decision in Christiansen v. Wright Med. Tech. Inc., MDL No. 2329, 1:13-cv-297-WSD, 2015 U.S. Dist....more

CFPB Wins MTD, But Loses on Scienter Standard for Aiding-and-Abetting Claims

A federal judge has rejected the CFPB’s argument that the CFPA should incorporate a lower standard for “recklessness” than that to secondary liability under the Securities and Exchange Act of 1934 (“SEC Act”). On September 1,...more

Lack of Proximate Cause for Failure to Warn Nets a Directed Verdict

A week ago, in a post-script to a post on Daubert decisions, we reported that the trial court in Hexum v. Eli Lilly & Co., No. 2:13-cv-02701-SVM-MAN, 2015 U.S. Dist. LEXIS 109737 (C.D. Cal. Aug. 18, 2015), had granted...more

A Defendant Can Get Summary Judgment Without Producing Evidence

The Supreme Court explained in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), that a party can obtain for summary judgment when its opponent has no evidence to support an element of the opponent’s case. Justice Brennan’s...more

Illinois appellate court strengthens sole proximate cause defense in asbestos cases

The question of whether a product manufacturer or employer in an asbestos lawsuit can introduce evidence of the plaintiff’s exposures to asbestos from other sources has become a highly contested issue. There is a lengthy...more

“Force of Nature” or Human Error? Litigating the Act of God Defense

The cause of the plaintiff’s damages is typically the first and most critical question posed to a jury in a product liability trial. If a jury determines that a substantial factor in the cause of the plaintiff’s damages was a...more

Illinois Appellate Court Reverses Asbestos Verdict on Sole Proximate Cause Argument

In Smith v. Illinois Central Railroad Co., the Fourth District of Illinois recently overturned a $1.4 million verdict against the Illinois Central Railroad. At trial, the Court had excluded evidence of the decedent's work at...more

Oklahoma Supreme Court Finds Subject Matter Jurisdiction Over Earthquake Claims

Potentially opening the door for litigation that seeks to tie deep-well injection of hydraulic fracturing flowback and other wastewater to damage caused by earthquakes, the Oklahoma Supreme Court unanimously held that state...more

New Jersey State Court Rules Damage Caused by Superstorm Sandy Not Subject to Flood Sublimit

In a decisive victory for policyholders, Judge Thomas Vena of the Essex County Superior Court in New Jersey ruled that significant damages incurred by Public Service Enterprise Group Inc. (“PSEG”) as a result of storm surge...more

California Supreme Court Lowers The AOE/COE Hurdle In Workers’ Compensation

In South Coast Framing, Inc. v. WCAB, Jovelyn Clark, S215637, May 28, 2015, the California Supreme Court clarified a claimant’s burden of proof in obtaining workers’ compensation benefits. In brief, a claimant meets the...more

Ninth Circuit: Under Arizona Law Mudslide Can Be Covered as the Direct Result of Fire

Last Friday, a unanimous panel of the Ninth Circuit held that loss from the excluded peril of mudslide occurring one month after a wildfire could be covered as the “direct” result of the blaze. In Stankova v. Metropolitan...more

April 2015: Product Liability Litigation Update

Defenses to Public Nuisance Claims in Pharmaceutical Products Litigation. For many years, plaintiffs have asserted the tort of nuisance to address purported harms from all sorts of products—including firearms, lead paint,...more

Antitrust Matters - November 2014 (Global)

EDITORIAL - Sitting at my desk in Washington, DC, I imagine myself being a business executive in Europe or Asia, trying to make sense of news reports that I regularly hear about United States courts and enforcement...more

Property Policy’s Pollution Exclusion Not Subject to Proximate Cause Analysis

An insured’s argument to broadly apply an exception to a pollution exclusion was recently rejected by the British Columbia Supreme Court in Whitworth Holdings Ltd. v. AXA Pacific Insurance Co., 2014 CarswellBC 2648, 2014 BCSC...more

Fifth Circuit Limits the Reach of ESA "Take Liability" for State Regulatory Agencies Based on "Proximate Causation" Principles

The Fifth Circuit's decision provides important legal and factual guidance for whether an action will cause a "take" under the ESA. While the decision only affects states covered by the Fifth Circuit (Texas, Louisiana and...more

Proximate Cause and Foreseeability Are Required Elements of Endangered Species Act Liability: Fifth Circuit Reverses Injunction...

The Fifth Circuit Court of Appeals has reversed an injunction that would have prohibited the Texas Commission on Environmental Quality (“TCEQ”) from issuing new water withdrawal permits affecting an estuary where...more

Antitrust Update: Second Circuit Adopts Rule Making it Easier to Find Liability for Foreign Anticompetitive Conduct

On June 4, 2014, the Second Circuit issued its decision in Lotes Co., Ltd. v. Hon Hai Precision Industry Co., an important ruling on the reach of the U.S. antitrust laws to foreign conduct. The Foreign Trade Antitrust...more

Proximate Cause - An Important Practice Tip for Personal Injury Lawyers  [Video]

In this video, Carol Steinour Young of McNees Wallace & Nurcik LLC provides an important practice tip for personal injury lawyers when preparing their case for mediation or trial. In addition to focusing on duty, breach, and...more

Supreme Court Establishes a New Test for False Advertising Standing Under Lanham Act

On March 25, 2014, the Supreme Court issued its opinion in Lexmark International Inc. v. Static Control Components Inc., holding that a two-prong analysis comprised of the "zone-of-interests" test and a "proximate-cause"...more

Appellate Court Notes: Week of March 10

SC19095 - Edgerton v. Clinton / SC19095 Dissent - Edgerton v. Clinton - Town appealed a $12 million jury verdict when a volunteer fire fighter was sideswiped and then took off after the offending vehicle. He relayed to...more

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