On opening an opinion, lawyers habitually roll their eyes when they see a table of contents. Even more so when they learn the opinion is over 300 pages. The MDL order granting defense motions to exclude experts and for...more
12/14/2022
/ Cancer ,
Causation ,
Daubert Standards ,
Expert Testimony ,
Expert Witness ,
Multidistrict Litigation ,
Over The Counter Drugs (OTC) ,
Prescription Drugs ,
Rule of Evidence 702 ,
Summary Judgment ,
Toxic Chemicals
A recent Second Circuit preemption decision illustrates the importance of a clear-eyed approach to medical device preemption issues.
In Glover v. Bausch & Lomb, Inc., 6 F.4th 229 (2d Cir. 2021), the district court...more
It is virtually a law of legal physics in California that liability tends to expand until a critical mass of appellate courts rule that it has reached its limit, or the Supreme Court puts up a stop sign (a vanishingly rare...more
On May 19, 2022, in an unpublished decision, a Ninth Circuit panel reaffirmed that under California law manufacturers do not have a duty to disclose defects in their products that manifest after the expiration of the...more
6/20/2022
/ Appeals ,
Apple ,
California ,
Class Action ,
En Banc Review ,
Liability ,
Manufacturers ,
Product Defects ,
Reversal ,
State and Local Government ,
Warranties
Just a decade ago, it was still an open question whether parties could challenge the admissibility of expert testimony in class certification proceedings. The United States Supreme Court recognized the issue in Wal-Mart...more
We have written before about the Supreme Court’s impossibility preemption decision, Merck Sharpe & Dohme Corp. v. Albrecht, 139 S. Ct. 1668 (2019) (Albrecht) (here, here, here, and here), highlighting some open questions and...more
We reported back in December [California Supreme Court Set to Decide How Defense Counsel Approach Defending Company Witness Depositions] on a case then pending before the California Supreme Court, Berroteran v. Superior...more
3/24/2022
/ Appeals ,
Burden of Proof ,
CA Supreme Court ,
Class Action ,
Consumer Fraud ,
Depositions ,
Discovery ,
Evidence Codes ,
Motor Vehicles ,
Product Defects ,
Statutory Interpretation ,
Testimony ,
Witnesses
On March 3, 2022, the U.S. Supreme Court decided Cameron v. EMW Women’s Surgical Center, No. 20-601, holding that the Sixth Circuit erred in prohibiting Kentucky’s attorney general from intervening to defend an abortion law...more
Litigators! Substantive amendments have been proposed to Federal Rule of Evidence 702. The public comment period closes February 16.
Rule 702 was last amended substantively in 2000, soon after the concluding chapter in...more
Most courts (but certainly, and unfortunately, not all of them) recognize that cherry-picking is a cardinal sin under Rule 702. Science generally requires a rigorous and conservative approach to evaluating cause-and-effect...more
The California Supreme Court will soon decide an evidentiary issue that could significantly impact how company witnesses are defended at deposition.
The Court heard argument December 7 in Berroteran v. Ford Motor Co., No....more
There has been much discussion recently about how Rule 702 is in need of a tune-up to better guide district courts’ gatekeeping. More about that soon.
But a case now pending before the Supreme Court, Monsanto Company v....more
On June 29, 2021, the U.S. Supreme Court decided PennEast Pipeline Co. v. New Jersey, No. 19-1039, holding that the Federal Government had properly delegated to private companies federal authority to condemn necessary...more
6/30/2021
/ Certificate of Public Convenience and Necessity ,
Condemnation ,
Easements ,
Eminent Domain ,
FERC ,
Natural Gas ,
Natural Gas Act ,
PennEast Pipeline Co. v New Jersey ,
Pipelines ,
Right of Way ,
SCOTUS ,
Sovereign Immunity ,
Takings Clause
On May 17, 2021, the Supreme Court held in BP P.L.C., et al. v. Mayor and City Council of Baltimore that when a remand order is appealable under 28 U.S.C. § 1447(d), the court of appeals may review the entire remand order,...more
The nature of advocacy makes it hard sometimes for lawyers to focus solely on the outcome and the bottom line result. How a court gets there may not matter much to the prevailing party in the dispute as they celebrate the...more
Our language around settlements connotes war and peace – in settling we are “buying our peace” or “ceasing hostilities.” The old saw is that a good settlement leaves no one satisfied, but in truth, a good settlement leaves...more
On March 25, the U.S. Supreme Court decided Ford Motor Co. v. Montana Eighth Judicial District Court, revisiting the issue of due process limitations on the exercise of personal jurisdiction, most recently addressed by the...more
On February 25, 2021, the U.S. Supreme Court unanimously decided Brownback v. King, No. 19–546, holding that the judgment bar of the Federal Tort Claims Act was triggered by a judgment of dismissal for failure to state a...more
The Ninth Circuit has confirmed in quadrophonic sound that plaintiffs cannot avoid preemption by relying on vague and speculative allegations to establish a parallel claim. The court affirmed the dismissal of four lawsuits...more
On January 14, 2021, the U.S. Supreme Court decided Chicago v. Fulton, holding that mere retention of a debtor’s property after the filing of a bankruptcy petition does not violate the automatic stay provided by §362(a) of...more
The U.S. Supreme Court’s recent decision in Liu v. SEC, No. 18-1501 (June 22, 2020), limiting the SEC’s ability to obtain monetary equitable relief in securities fraud litigation, may seem an odd topic for this blog. But Liu...more
8/7/2020
/ 15 U.S.C. § 78u(d)(5) ,
Administrative Authority ,
Business Expenses ,
Calculation of Damages ,
Corporate Counsel ,
Corporate Misconduct ,
Disgorgement ,
Enforcement Actions ,
Equitable Relief ,
Kokesh v SEC ,
Lack of Authority ,
Liu v Securities and Exchange Commission ,
Net Profits ,
Remedies ,
SCOTUS ,
Securities and Exchange Commission (SEC)
The first appellate shoe has dropped in the litigation involving the herbicide Roundup, Johnson v. Monsanto Co., decided July 20, 2020, by California’s 1st District Court of Appeal, Division One. We discussed the verdict and...more
In the “Daubert trilogy,” Rule 702 spawned three children, all special in their own way. The firstborn, Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), naturally receives most of the attention, being the pioneer....more
The U.S. Supreme Court’s 2019 decision in Merck Sharp & Dohme, Inc. v. Albrecht, 139 S.Ct. 1668 (2019), discussed... addressed impossibility preemption in label change lawsuits. In Albrecht, the Supreme Court purported to...more
3/23/2020
/ Food and Drug Administration (FDA) ,
Generic Drugs ,
GlaxoSmithKline ,
Labeling ,
Merck ,
Merck Sharp & Dohme Corp. v. Albrecht ,
Pharmaceutical Industry ,
PLIVA v Mensing ,
Preemption ,
Product Labels ,
SCOTUS ,
Wyeth
On November 14, 2019, the California Supreme Court (CSC) issued an important decision producing a significant victory for the insurance industry. In a case litigated by The Northwestern Mutual Life Insurance Company...more