Fourth Circuit Upholds Application of Government-Contractor Defense in Asbestos Suit

Featured Expert Contributor: Mass Torts—Asbestos

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

The US Court of Appeals for the Fourth Circuit recently applied the Boyle government-contractor defense to a failure-to-warn claim in an asbestos case.  Sawyer v. Foster Wheeler LLC, 860 F.3d 249 (4th Cir. 2017).  In doing so, the court wisely rejected a narrow interpretation of the defense favored by other federal circuit courts.

The defense derives its name from Boyle v. United Technologies Corp., 487 U.S. 500, 501 (1988), which held that, in order to avoid indirectly penalizing the United States government for its discretionary decisions concerning the purchase of military equipment, contractors supplying that equipment would be immune from state product-liability claims where (1) the government approved reasonably precise specifications for the equipment; (2) the equipment conformed to those specifications; and (3) the contractor warned the government of any dangers known to the contractor about which the government was unaware. Continue reading

Because of “Winn-Dixie”?: Uncertainty over ADA’s Applicability to Websites Deepens

Featured Expert Contributor – Civil Justice/Class Actions

Cruz-Alvarez_FBy Frank Cruz-Alvarez, Shook, Hardy & Bacon L.L.P., with Rachel Canfield,  Shook, Hardy & Bacon L.L.P.

Ever since the codification of the American’s with Disabilities Act (ADA) in 1990, brick and mortar businesses have been obligated to ensure their physical spaces are accessible to all individuals.  The advent of the internet—and with it, creation of an entirely new, intangible, space—has ushered in a whole new host of legal challenges.  The combination of uncharted legal waters and ongoing regulatory moratoriums has produced extensive litigation over recent years.  In this new frontier, businesses and consumers alike have begun to question whether the ADA also applies to a business’s intangible, technological spaces.

There is very little structure, and even less clarity, in this emerging area of the law.  Federal courts remain split over whether the ADA applies only to physical spaces and to date, no federal agency or organization has been tasked with overseeing or implementing website accessibility guidelines.  Instead, the Web Accessibility Initiative publishes a set of guidelines—the Web Content Accessibility Guidelines (WCAG 2.0)—on web-content accessibility.  Continue reading

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

Does the American Law Institute Have an Ethics Problem on Its Hands?

ethicsThe brouhaha that engulfed the final draft of the Restatement of the Law, Liability Insurance (RLLI) at last month’s American Law Institute (ALI) annual meeting drew more publicity and concern than any ALI work product that I can recall.  And for good reason.  As numerous commentators observed—including Washington Legal Foundation’s Glenn Lammi and Mintz Levin’s Kim Marrkand—several provisions of the Restatement draft presented at the annual meeting deviated from the current legal rule in a majority or plurality of states.  Simply put, this “Restatement” does a lot less restating and a lot more revising than ought to be seen in something traveling under this banner. Continue reading

Forum-Shopping Plaintiffs Take a Major Hit in US Supreme Court

supreme courtForum-shopping plaintiffs’ attorneys have long sought to file their claims against large businesses in jurisdictions with reputations for favoring plaintiffs—without regard to whether the claims actually arose in those jurisdictions.  They justify their assertions of personal jurisdiction in such cases by arguing that a company that does business nationwide should be amenable to suit in any State in which it conducts substantial business.  In its 2014 Daimler AG v. Bauman decision, the US Supreme Court called into serious question the validity of such venturesome assertions of jurisdiction.  The Court’s decision last week in Bristol-Myers Squibb Co. v. Superior Court may have put such claims entirely to rest. Continue reading

See Spot Sue?: Eleventh Circuit’s Bar on Dog Defendants Exemplifies Problems with Allowing Animal Plaintiffs

By Jordan FowlerDraco, a 2017 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering her third year at Texas Tech University School of Law in the fall.

You can sue your grocer, you can sue your policeman, you can even sue your neighbor John, but can you sue neighbor John’s dog? In May, the US Court of Appeals for the Eleventh Circuit firmly answered that question: no.  In Jones v. Fransen it held that a plaintiff could not sue a police dog for excessive force due to constraints in statutory language and practical problems. This holding is notable beyond its unusual facts: it demonstrates that although many plaintiffs’ attorneys creatively seek new clients, the impracticalities of suing a dog demonstrate why an attorney also cannot represent a dog—or any other animal—as a plaintiff in an animal rights lawsuit.   Continue reading

Heeding Criticism from Many Corners, ALI Pulls Liability Insurance Restatement Before Membership Vote

white flagEarlier this month in Insurance Liability Project Exemplifies American Law Institute’s Mission Drift, we discussed an especially troubling instance of where the American Law Institute (ALI), a private organization known for its “Restatements” of common law in areas such as torts, products liability, and contracts, was instead revising the law. On Tuesday, May 23, ALI announced at its annual meeting that rather than hold a final vote on the Restatement of Law, Liability Insurance as scheduled, the draft’s Reporters (i.e. authors) “agreed that another year of work” was needed on the project. Continue reading