“Big Coffee” Wins Another One in the Food Court

big coffeeFood Court Follies—A WLF Legal Pulse Feature

Ed. Note: This is the first post for our blog by our newest Staff Attorney, Marc Robertson.

Without Jerry Seinfeld’s litigious (and fictional) attorney Jackie Chiles on the case, Siera Strumlauf and her co-plaintiffs did not stand a chance in California’s Food Court (the Northern District of California) in her “latte fraud” lawsuit. Judge Yvonne Gonzalez Rogers granted Starbucks’ motion for summary judgment in Strumlauf, et al. v. Starbucks Corp., holding the plaintiffs failed to raise a single triable issue of fact as to each of their eight claims.

Lead plaintiff Strumlauf alleged that Starbucks committed, among other wrongs, breach of express warranty, fraud, and false advertising by underfilling its lattes and mochas (collectively, “lattes”). If this case sounds familiar, it is because a little over a year ago the Central District of California dismissed a case alleging Starbucks misrepresented the specific number of ounces in an iced drink in Forouzesh v. Starbucks Corp. (discussed here). That argument failed, so it only made sense that the plaintiff (and her lawyers) raised the temperature in the fight against Starbucks. Continue reading ““Big Coffee” Wins Another One in the Food Court”

New First Amendment Challenge Takes Aim at California’s Listing of Glyphosate as a Potential Carcinogen Under Prop 65

warningLong the subject of much controversy, California’s Proposition 65 law prohibits businesses from exposing Californians to chemicals “known to the State of California to cause cancer” without first providing a warning. California’s Office of Environmental Health Hazard Assessment (OEHHA) publishes a list of chemicals “known to the State of California to cause cancer.” By statute, that list must include substances designated as potential carcinogens by the International Agency for Research on Cancer (IARC), an international non-governmental entity. Continue reading “New First Amendment Challenge Takes Aim at California’s Listing of Glyphosate as a Potential Carcinogen Under Prop 65”

Trial Judge Tosses Jury Verdict in Talcum Powder Mass-Tort Suit for Lack of Causation

RobertWrightFeatured Expert Contributor, Mass Torts—Asbestos

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

In a case that has generated national publicity, Judge Maren E. Nelson of the Los Angeles County Superior Court granted Johnson & Johnson’s motion for judgment notwithstanding the verdict after a jury awarded plaintiff $417 million, including $347 million in punitive damages, in a case alleging injury from exposure to talc.  (See Johnson & Johnson Talcum Powder Cases, Los Angeles County Superior Court, Case No. BC628228, JCCP No. 4872, Oct. 20, 2017 Order.)

The trial court’s order is significant in several respects, but in particular because it rejects plaintiff’s attempt to establish causation based on epidemiologic studies that do not show a relative risk of at least 2.0 for the specific cancer alleged by plaintiff. Continue reading “Trial Judge Tosses Jury Verdict in Talcum Powder Mass-Tort Suit for Lack of Causation”

No “Daubert”-Style Gatekeeping in Alabama for Expert Testimony Based on Technical or Specialized Knowledge

Featured Expert Contributor, Judicial Gatekeeping of Expert Evidence

By Tager_09181Evan M. Tager, a Partner in the Washington, DC office of Mayer Brown LLP, with Carl J. Summers, an Associate with Mayer Brown LLP.

In federal courts, Daubert v. Merrell Dow Pharmaceuticals, Inc. applies not only to scientific testimony but also to technical and other specialized knowledge. That principle stems from the text of Federal Rule of Evidence 702(a)—which expressly references an “expert’s scientific, technical, or other specialized knowledge”—and the US Supreme Court’s holding in Kumho Tire v. Carmichael, which extended Daubert’s gatekeeping responsibilities to technical and specialized knowledge. Put simply, Daubert provides a generally applicable rule for how federal judges should ascertain the reliability of expert testimony.

The same is not true in Alabama. In 2011, the Alabama Legislature adopted the Daubert standard and modified Alabama Rule of Evidence 702 to provide: Continue reading “No “Daubert”-Style Gatekeeping in Alabama for Expert Testimony Based on Technical or Specialized Knowledge”

Uncommon Defects and Unreliable Methods: U.S. District Court Effectively Applies ‘Daubert’ to Deny Class Certification

Featured Expert Column–Judicial Gatekeeping of Expert Evidence

Tager_09181Evan M. Tager, a Partner in the Washington, DC office of Mayer Brown LLP, with Carl J. Summers, an Associate with Mayer Brown LLP.

In many civil lawsuits, parties introduce expert testimony to help the jury decide questions of negligence or causation. In class actions, expert testimony is also often employed to help the court answer questions under Federal Rule of Civil Procedure 23, such as whether a class is ascertainable or to develop a formula for awarding damages on a class-wide basis. In Kljajic v. Whirlpool Corp., the United States District Court for the Northern District of Illinois (St. Eve, J.) addressed the intersection of Daubert and Rule 23’s commonality and predominance requirements.

Under Rule 23(a), a plaintiff must show that there are questions of law or fact common to the class. And plaintiffs who seek certification under Rule 23(b)(3) must satisfy the more demanding predominance requirement, which looks to whether the common issues in the case are more important than the individualized issues. These two requirements are similar, and expert testimony can shed light on whether a case can be maintained as a class action. Continue reading “Uncommon Defects and Unreliable Methods: U.S. District Court Effectively Applies ‘Daubert’ to Deny Class Certification”

Third Circuit Rejects Plaintiffs’ Attempt to Lower “Daubert” Standard in “In re Zoloft Products Liability Litigation”

Featured Expert Column –Judicial Gatekeeping of Expert Evidence

Tager_09181Evan M. Tager, a Partner in the Washington, DC office of Mayer Brown LLP, with Carl J. Summers, an Associate with Mayer Brown LLP.

The US Court of Appeals for the Third Circuit recently rejected an attempt to substantially lower the standard for admission of expert testimony resting on studies that have not produced replicated and statistically significant findings. Specifically, the plaintiffs in In re Zoloft Products Liability Litigation argued that the district court erroneously imposed a rigid, bright-line rule that an expert must present replicable, statistically significant findings. The Third Circuit held that the district court had not established such a bright-line rule, but rather had made a factual finding that teratologists—scientists who study abnormalities in human development—“generally required replication of significant results.” After dispensing with the plaintiffs’ flawed interpretation of the district court’s decision, the Third Circuit affirmed the exclusion of the expert testimony on the ground that the expert had selectively chosen data that supported his opinion and inconsistently applied his methodology, thus rendering his opinions unreliable. Continue reading “Third Circuit Rejects Plaintiffs’ Attempt to Lower “Daubert” Standard in “In re Zoloft Products Liability Litigation””

Will the California Supreme Court Address the “Every Exposure” Theory of Causation?

Featured Expert Contributor: Mass Torts—Asbestos

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

*This is the inaugural post for the WLF Legal Pulse’s newest Featured Expert Contributor. We are pleased to have Rob join our 7 other Featured Experts.

In conflict with many other jurisdictions, the intermediate appellate courts in California have allowed expert testimony in toxic tort cases based on an “every exposure” theory of causation (or its variants such as the “every identified exposure” theory).  Under that theory, even a minuscule exposure attributable to a defendant is by definition a substantial factor in causing disease, regardless of the circumstances of exposure or comparison to greater exposures attributable to other sources.  The California Supreme Court has been asked to grant review to decide the admissibility of such expert testimony in the case Phillips v. Honeywell International Inc., California Supreme Court Case No. S241544.

The “every exposure” theory typically arises in toxic tort cases involving latent diseases.  The causation standard is critical in low-dose exposure cases, which often turn on disputed evidence about sporadic exposure decades ago, and controversial opinions about whether low-dose exposures are capable of causing disease.  Although the issue arises most frequently in asbestos cases like Phillips, it can arise in any case in which the plaintiff claims injury from minute exposure to an alleged toxin.  Continue reading “Will the California Supreme Court Address the “Every Exposure” Theory of Causation?”