New Jersey Supreme Court Adopts Daubert (More or Less) for Civil Cases

Featured Expert Contributor, Judicial Gatekeeping of Expert Evidence

Evan M. Tager, a Partner in the Washington, DC office of Mayer Brown LLP, with Surya Kundu, an Associate with the firm.

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Although regarded by many as a relatively plaintiff-friendly court, the New Jersey Supreme Court recently bucked the stereotype by largely adopting Daubert for civil cases.  The court’s decision in In re: Accutane Litigation is a behemoth, weighing in at 85 pages (not including the syllabus), but the background and outcome are pretty straightforward. Continue reading “New Jersey Supreme Court Adopts Daubert (More or Less) for Civil Cases”

Federal District Court Excludes Dubious “Scientific” Opinions in Mirena MDL

Featured Expert Contributor, Judicial Gatekeeping of Expert Evidence

 

Evan M. Tager, a Partner in the Washington, DC office of Mayer Brown LLP, with Jonathan S. Klein, an Associate with the firm.

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Although courts don’t always apply Daubert with the rigor that is warranted, when they do, it is worth noting.  Such is the case with federal district court Judge Paul Engelmayer’s thorough and scholarly decision excluding the opinions of all the plaintiffs’ general-causation experts in an MDL involving Bayer’s Mirena IUD device, In re Mirena Ius Levonorgestrel-related Products. Liability Litigation (No. II).   Continue reading “Federal District Court Excludes Dubious “Scientific” Opinions in Mirena MDL”

Divided Virginia Supreme Court Decision Epitomizes National Split over “Take Home” Asbestos Liability

Featured Expert Contributor, Mass Torts—Asbestos

RobertWrightRobert H. Wright, a Partner with Horvitz & Levy LLP in Los Angeles, CA

Plaintiffs have pushed for a rule that would hold employers liable for so-called “take home” asbestos exposures, arguing that companies that used asbestos in the workplace owe a duty not only to protect their own employees from direct exposures, but also to protect anyone who later comes into contact with those employees.

This theory of liability has been rejected in almost two-thirds of the jurisdictions to consider the issue.  Fifteen states—including Arizona earlier this year—have decided defendants owe no duty of care to those claiming take-home exposure (Arizona, Georgia, Illinois, Iowa, Kansas, Kentucky, Maine, Maryland, Michigan, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, Texas).  In contrast, until recently, only eight states recognized some form of such a duty (Alabama, California, Delaware, Indiana, Louisiana, New Jersey, Tennessee, Washington).

Earlier this month, the Supreme Court of Virginia was confronted with the question of take-home liability in Quisenberry v. Huntington Ingalls Inc., No. 171494, 2018 WL 4925349 (Va. Oct. 11, 2018).  Continue reading “Divided Virginia Supreme Court Decision Epitomizes National Split over “Take Home” Asbestos Liability”

Litigation Funding Slides Downmarket

Featured Expert Contributor, Litigation Strategies

Joe_Hollingsworth_thumbnail 1McMinn_Donald_MainJoe G. Hollingsworth, Partner, Hollingsworth LLP, with Donald R. McMinn, a Partner with the firm.

 

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Through their investments in a lawyer’s case(s), litigation funders have fomented economically shaky litigation while making that litigation’s resolution more difficult by disguising the settlement decision maker.  Now litigation funders are entering a new market—one composed of the plaintiffs themselves, rather than their attorneys.  Their new approach is, quite possibly, worse than their initial one.

Web-based platforms speak of creating an ostensible “peer-to-peer” approach by which even individuals can invest in the lawsuits of others.  The platforms allow would-be funders to pick and choose lawsuits in which to invest and then direct the investment straight to plaintiffs, not their lawyers.  Plaintiffs trade their receipt of funds now in return for agreeing to repay the lender out of any recovery. Continue reading “Litigation Funding Slides Downmarket”

New NY Commercial Division E-Discovery Rule Encourages Use of Technology-Assisted Review

 

Guest Commentary

By Elizabeth M. Sacksteder and Ross M. Gotler, Paul, Weiss, Rifkind, Wharton & Garrison LLP. Ms. Sacksteder is a Partner with the firm and a member of the Commercial Division Advisory Council. Mr. Gotler is E-Discovery Counsel with the firm. Some of this material first appeared in Law 360.

The most expensive stage of big-ticket litigation today is review of the huge volume of electronically-stored information (ESI) that such cases typically require, notwithstanding such common economies as the use of vendors to do first-level document review. Achieving greater efficiency in this resource-intensive stage of litigation—making review of ESI cheaper, faster, and more accurate—is a shared goal of litigants, their counsel, and the courts. Sophisticated litigants know that the use of technology-assisted review can yield substantial cost savings as well as streamline and accelerate document review and production.

Though the e-discovery industry is embracing technology, neither the Federal Rules of Civil Procedure nor state procedure codes address whether, in what circumstances, or how a party may use technology-assisted review to fulfill its disclosure obligations. Other than references in a few discovery pilot programs, a relatively sparse body of mostly federal case law, and secondary sources such as the commentaries of The Sedona Conference, there has been little express guidance to date for practitioners or courts concerning the appropriate use of technology-assisted review. Continue reading “New NY Commercial Division E-Discovery Rule Encourages Use of Technology-Assisted Review”

WLF Supreme Court Preview Briefing Delves into Cases and Petitions Affecting Free Enterprise

Our October Term 2018 preview aired live at 12:30 on September 18. Thomas Goldstein of Goldstein & Russell, P.C. moderated a panel that featured Professor John Yoo of UC Berkeley School of Law; Shay Dvoretzky of Jones Day; and Beth Brinkmann of Covington & Burling LLP.

Washington Legal Foundation has filed amicus briefs in four cases currently on the Court’s October 2018 docket and in support of five certiorari petitions:

Merits cases

Cert. Petitions

Relevant WLF Publication

Air & Liquid Systems Corp. v. Devries: Asbestos Litigation’s “Bare Metals” Defense Goes Before the U.S. Supreme Court

Courts Reject Buyers’ Remorse and Wasted Time as Redressable Class-Wide Injuries

article IIIWe return once again (click here for past posts) to the seemingly banal legal doctrine of standing to sue—a subject that few, if any, likely contemplated when celebrating Constitution Day this week. This doctrine does, however, arise from the Constitution’s ingenious separation of powers among the three branches of government. Article III limits the judiciary’s role to resolving “cases” and “controversies.” From that the U.S. Supreme Court derived the standing doctrine as a way to test whether plaintiffs’ claims are fit for judicial resolution. A key part of the test is whether a plaintiff can factually establish that she suffered a concrete “injury in fact” that can be traced to the defendant’s conduct and can be redressed by a judicial remedy.

Legal claims based on conjectural or hypothetical harm, therefore, should not be inundating federal courts’ dockets. Unfortunately, too many no-injury class actions are passing the standing test, thanks in part to broadly worded state consumer-protection laws (and judges’ reluctance to reject jurisdiction). Just last week, for instance, a federal court ruled that state fraud laws are so broad that consumers who purchased vehicles with faulty ignition switches can recover damages even if the defect never manifested itself. And earlier this year, the Supreme Court refused to review an appellate court decision that allows eye-drop users to sue based on the speculative theory that eye-drop producers would charge the same price for a vial with a smaller dispensing hole.

Given the current trend on standing, it is critical to highlight positive outcomes in this area. We discuss two encouraging decisions here, one from the court that allowed the aforementioned eye-drop suit to proceed, the U.S. Court of Appeals for the Third Circuit, and the second from a federal court in California, a state with perhaps the nation’s most permissive consumer-protection laws. Continue reading “Courts Reject Buyers’ Remorse and Wasted Time as Redressable Class-Wide Injuries”