BSCR Firm News/Blogs Feed Jun 2021 00:00:00 -0800firmwise Expansion: Specific Personal Jurisdiction Just Got Broader Mar 2021Product Liability Law Blog<p>Courts around the country have held a defendant is not subject to specific personal jurisdiction in a forum unless the claims asserted arose out of the defendant&rsquo;s contacts with the forum. In product liability cases, typically unless the product arrived in the forum through the defendant&rsquo;s actions, the courts found no specific personal jurisdiction existed.&nbsp; However, the United States Supreme Court has broadened the scope of contacts sufficient for a court to exercise personal jurisdiction over a defendant.&nbsp; In doing so, it has weakened a powerful defense.&nbsp;</p> <p>There are two types of personal jurisdiction&mdash;general and specific.&nbsp; Where general personal jurisdiction applies, a court may hear any claims against a defendant, even those unrelated to the forum.&nbsp; Barring an exceptional case, corporations are subject to general personal jurisdiction in any state in which they are incorporated or their principal place of business is located.&nbsp; Specific personal jurisdiction is more limited.&nbsp; A court may only exercise specific personal jurisdiction if the claims brought arise out of or relate to a defendant&rsquo;s contacts with the forum.&nbsp; The new decision focuses on specific personal jurisdiction.&nbsp;</p> <p>In two related cases - <i>Ford Motor Co. v. Montana Eighth Judicial District Court, et al.</i> and <i>Ford Motor Co. v. Bandemer</i> -the plaintiffs brought product liability claims against Ford arising from auto accidents that occurred in Montana and Minnesota respectively.&nbsp; The plaintiffs were residents of those states.&nbsp; However, the vehicles at issue were not originally sold by Ford in Montana or Minnesota.&nbsp; The cars were designed in Michigan, manufactured in Kentucky and Canada, and first sold in Washington and North Dakota.&nbsp; The cars arrived in the forum states through the actions of third-parties.</p> <p>Ford argued the states lacked personal jurisdiction over it because Ford did not first sell the vehicles in the forums.&nbsp; Ford claimed there must be a causal link between the contacts and the claims. The plaintiffs asserted that Ford&rsquo;s vast connections with the states, including dealerships, advertising and repair shops, provided a sufficient connection to the forums establishing that Ford purposefully availed itself of the privilege of conducting business there.</p> <p>In a majority <a href=" ">opinion</a> authored by Justice Kagan, the Supreme Court rejected Ford&rsquo;s causal link argument.&nbsp; The Court held the case law did not require solely a causal link but also allowed jurisdiction when the claims &ldquo;relate to the defendant&rsquo;s contacts with the forum.&rdquo; The Court noted the significant advertisements used by Ford to urge residents of Montana and Minnesota to buy its products, including the same type of vehicles at issue.&nbsp; Similarly, the number of authorized dealers in the states along with Ford sending replacement parts to those dealerships and independent repair shops throughout the forums demonstrated Ford had purposefully availed itself of benefits of doing business there.&nbsp;</p> <p>Justices Alito, Gorsuch and Thomas concurred in the judgment with Justice Barrett taking no part in the consideration or decision of the case.&nbsp; Justice Gorsuch, joined by Justice Thomas, lamented the majority opinion&rsquo;s failure to provide adequate guidance to lower courts regarding what amount of contacts would support a forum exercising personal jurisdiction over a defendant, and a lack of clarity as to whether <i>any </i>causal link is necessary.&nbsp;</p> <p>Justice Gorsuch further questions why national corporations would not be subject to personal jurisdiction in every state in which they do business.&nbsp; He notes &ldquo;the Constitution has always allowed suits against <i>individuals</i> on any issues in any State where they set foot.&rdquo;&nbsp; <i>Id</i>. n.5.&nbsp; He posits, why should corporations receive more jurisdictional protections than individuals?</p> <p>So, how will this decision impact cases?&nbsp; First, the decision reaffirms that a nonresident plaintiff may only file suit in a forum in which there is a connection to the claims asserted.&nbsp; The majority suggests that had plaintiffs tried to file suit in some other state unrelated to the incident or the vehicles in question, personal jurisdiction would be improper.&nbsp; This reaffirmation should continue to help limit forum shopping by plaintiffs.&nbsp; However, nonresident plaintiffs may still file suit in a corporation&rsquo;s home states where it is subject to general personal jurisdiction.</p> <p>Second, regional companies would still be protected from suits in other jurisdictions in which they do not conduct their businesses.&nbsp; However, the decision will likely expand the scope of permissible jurisdictional discovery allowed by trial courts particularly in those states where plaintiff bears the burden of proving personal jurisdiction exists.</p> <p>Third, national companies may essentially be subject to personal jurisdiction in any state in which a resident plaintiff is injured.&nbsp; However, it is unclear from the opinions what limitations, if any, exist.&nbsp; For example, if a manufacturer sells its products through a national retailer, does this fact mean the manufacturer is subject to personal jurisdiction everywhere the national retailer is?&nbsp; Would the exercise of personal jurisdiction depend on how the product gets to the retailer&mdash;i.e. does the manufacturer send the product to a third-party distributor who then sends it to the individual stores or does the manufacturer deliver the products to the stores directly?&nbsp;</p> <p>Similarly, how much advertisement is sufficient? Will it matter if the advertisement is directed to the state or nation as a whole&mdash;such as television commercials or billboards&mdash;or if it is narrowly tailored to a specific type of audience such as sponsorship signs on team uniforms, at a ballpark, or in a trade magazine?&nbsp; What if the advertising is purchased in a national magazine rather than a local newspaper?&nbsp;</p> <p>Finally, there was no guidance issued for e-commerce sales.&nbsp; Will a single sale to a forum be sufficient? Is it a number of sales or the percentage of the overall business&rsquo;s sales that are relevant? Will a critical factor be whether the website accessed was the manufacturer&rsquo;s or a third-party&rsquo;s?</p> Unfortunately, the opinion leaves these questions to be sorted out in future cases with little guidance to the lower courts.&nbsp; As a result, this will not be the last time we hear from the Supreme Court on personal jurisdiction.&nbsp;&nbsp; surrounding an earlier sale of equipment is relevant to a later purchaser's claim for punitive damages in a product liability action Jan 2021Product Liability Law Blog<p>Missouri manufacturers, distributors, sellers, and resellers of equipment have scored an important victory in the Missouri Court of Appeals. In <i>Ormsby v. Central Mine Equipment Co</i>, the Missouri Court of Appeals, Southern District, affirmed admission of evidence regarding the design, manufacture, and first sale of a commercial drilling rig as relevant to the defense of a strict liability claim arising from a subsequent sale when punitive damages are claimed.&nbsp;</p> <p>Generally, a plaintiff can recover under a strict product liability claim if he can prove the product was inherently defective when sold and that the defect in the product caused the injury or damage, regardless of whether the defendant did everything possible to prevent the defect.&nbsp;In <i>Ormsby</i>, the Plaintiff sought to preclude evidence of the initial design, manufacture, and sale of a commercial drilling rig as irrelevant to whether the rig had an inherent defect when the second sale occurred.&nbsp;The trial court admitted the evidence as relevant to the defense, primarily because Plaintiff sought punitive damages on the strict liability claim.&nbsp;</p> <p>Plaintiff lost fingers and mangled his hand after reaching into a running drill rig. The incident occurred, and the underlying lawsuit arose, after a subsequent second sale of the mining drill by the CME.</p> <p>Central Mine Equipment Company (&ldquo;CME&rdquo;) built and sold a commercial drilling rig to the U.S. Army Corp of Engineers in 1976.&nbsp;CME built the drill to design specifications provided by the Corps, and the Corps inspected and accepted the drilling rig pursuant to the Corps&rsquo; quality-assurance procedures.&nbsp;After using the drill for 25 years, the Corps traded the drilling rig back to CME for a credit on a replacement. &nbsp;CME then sold it to Plaintiff&rsquo;s employer, who inspected, purchased and relocated the pre-owned unit in 2001, without CME ever seeing, inspecting, or taking possession of the used unit.</p> <p>In 2013, Plaintiff and a helper picked up the drill rig from a mechanic who had repaired the rig&rsquo;s throttle cable.&nbsp;After starting the engine to check the mechanic&rsquo;s work, Plaintiff could not shut the rig off.&nbsp;Plaintiff reached into the motor compartment in an attempt to maneuver the throttle linkage and governor to idle the engine to a stop.&nbsp;Before Plaintiff&rsquo;s helper could get the motor shut down, Plaintiff caught his hand in the mechanism causing the loss of multiple fingers.&nbsp;</p> <p>Plaintiff filed a lawsuit against CME alleging claims for negligence and strict liability, and requesting a punitive damages award under both theories.&nbsp;On the eve of trial, hoping to preclude evidence regarding design, manufacture and first sale of the drill, Plaintiff dismissed his negligence claim, but did not withdraw his request for punitive damages.&nbsp;Nevertheless, Plaintiff sought to preclude evidence that CME designed the drill pursuant to specifications provided by the Corps, and that the Corps inspected the drill to ensure it passed quality assurance standards before taking possession.</p> <p>Plaintiff sought to preclude the evidence as irrelevant to the litigation, claiming that because strict liability claims do not require proof of knowledge as an element to recovery.&nbsp;But the trial court allowed CME to present evidence of the original design, manufacture, and sale because compliance with an industry standard evidences that a party did not act with a culpable state of mind, which is required to support punitive damages.</p> <p>The Missouri Court of Appeals affirmed the trial court&rsquo;s decision to admit the disputed evidence, finding Plaintiff did not meet his burden in demonstrating the trial court ruled incorrectly.&nbsp;The Court found that so long as punitive damages were alleged, compliance with industry standard and custom goes to prove whether defendant acted with a nonculpable state of mind, hence, to negate an inference of complete indifference and conscious disregard for the safety of others &ndash; proof punitive damages requires.</p> <p>The Court&rsquo;s decision is a positive development for Missouri manufacturers, designers, sellers, and resellers in defending against claims for punitive damages in product liability cases.</p> Appellate Court Reverses Plaintiffs' Verdict in Asbestos Lawsuit Mar 2020Product Liability Law Blog<p>Recently, the Illinois Fourth District Appellate Court issued an <a href="">opinion</a> reversing the Circuit Court of McLean County in an asbestos lawsuit. In <i>Krumwiede v. Tremco, Inc.</i>, the court determined that the plaintiffs failed to establish at trial that the decedent&rsquo;s work with the defendant&rsquo;s products was a substantial factor in the cause of the decedent&rsquo;s illness.&nbsp; This is yet another instance in which the Fourth District has reversed the Circuit Court of McLean County in an asbestos lawsuit.&nbsp; The opinion should give defendants wary of trying an asbestos lawsuit in McLean County optimism about the potential for appellate relief.</p> <p>In <i>Krumwiede</i>, the plaintiffs alleged that the decedent was exposed, in part, through his work with Tremco caulk and tape.&nbsp; The decedent worked as a window glazier from the mid-1950&rsquo;s to the early 1990&rsquo;s.&nbsp; At trial, two of the decedent&rsquo;s former co-workers testified that they and the decedent used Tremco caulk and glaze in their roles as glaziers.&nbsp; The witnesses, however, could not recall seeing dust emanate from the Tremco products or anything on the products&rsquo; packaging indicating that they contained asbestos.&nbsp;</p> <p>Plaintiff&rsquo;s medical expert, Dr. Arthur Frank, testified that a person&rsquo;s cumulative dose to asbestos contributes to the development of mesothelioma.&nbsp; In elaborating on this opinion, Dr. Frank testified that there is no scientific way to determine what exposure to asbestos caused a person&rsquo;s illness, but rather, a person&rsquo;s total exposure is considered the cause of the illness.&nbsp; Dr. Michael Graham, a pathologist, testified for Tremco, opining that there were amosite asbestos fibers found in the decedent&rsquo;s lung tissue, but that those fibers had nothing to do with the decedent&rsquo;s work with Tremco products, as those products only contained chrysotile asbestos fibers.&nbsp; Dr. William Longo also testified for Tremco.&nbsp; He explained that he previously tested the Tremco products and found no detectable asbestos fibers, which was because the products were thermoplastic materials.&nbsp; Dr. Longo admitted, however, that he could not rule out that Tremco products released respirable asbestos fibers.&nbsp; Ultimately, the jury returned a verdict for the plaintiffs.</p> <p>But the appellate court concluded that the plaintiffs failed to establish that the decedent's work with Tremco products was a substantial factor in the cause of his mesothelioma.&nbsp; According to the court, simply working around Tremco products did not establish that the decedent had frequent, regular, and proximate contact with respirable asbestos fibers from the products.&nbsp; The court believed that there was an absence of evidence explaining under what circumstances Tremco's products released respirable asbestos fibers.&nbsp; In other words, just because the products were capable of releasing asbestos fibers did not mean they actually did so when the decedent worked with the products.&nbsp; The court also determined that the plaintiff failed to present evidence showing that Tremco's products released more than a <i>de minimis</i> amount of asbestos fibers when the decedent encountered the products.&nbsp; And while the court found that Dr. Frank's &quot;cumulative exposure&quot; testimony was proper under Illinois law, the court concluded that his testimony did nothing to aid the plaintiffs in meeting the &ldquo;substantial factor&rdquo; test under Illinois law because he did not opine that exposure from Tremco products was a substantial factor in bringing about the decedent's illness.&nbsp;</p> This is a positive development for Illinois defendants in asbestos litigation.&nbsp; Specifically, defendants should consider relying on this opinion to argue that a plaintiff cannot satisfy his or her burden of proving causation simply by establishing that a defendant&rsquo;s products can release asbestos fibers.&nbsp;&nbsp; First District Appellate Court upholds $4.8 million asbestos verdict against John Crane. Feb 2020Product Liability Law Blog<p>Much to the defense bar&rsquo;s dismay, in late 2019, the First District Appellate Court affirmed and upheld a $4.6 million verdict against John Crane Inc. in <i>Daniels v. John Crane, Inc.</i>, 2019 IL App (1st) 190170.</p> <p>In that case, the decedent&rsquo;s estate filed suit, alleging that the decedent developed pleural mesothelioma due to asbestos exposure. The decedent worked as a union pipefitter from 1957 to 1985.&nbsp;Prior to his death, the decedent testified to significant asbestos exposure from valves and gaskets, including gaskets manufactured by John Crane.&nbsp;&nbsp;</p> <p>At trial, plaintiff's expert, Dr. Jerrold Abraham, testified that the decedent's asbestos exposure through his work with John Crane products was a substantial contributing factor in his development of mesothelioma.&nbsp;Dr. Abraham did not quantify the decedent's exposure through John Crane products, and he testified that exposure to all types of asbestos fibers can cause mesothelioma.&nbsp;Moreover, according to Dr. Abraham, while mesothelioma is a dose-response disease &ndash; meaning the more exposure an individual has the more likely they are to contract the disease &ndash; once someone sustains an asbestos-related disease, it does not matter whether they have had a high or low exposure to asbestos.&nbsp;Dr. Abraham conceded that all of the decedent&rsquo;s exposures, including through friable insulation, were substantial contributing factors to the development of his illness.&nbsp;Essentially, Dr. Abraham opined that if the decedent was exposed to asbestos through John Crane products, such exposure was a substantial factor to the development of his illness, regardless of the dose of the exposure or the dose of the decedent&rsquo;s exposures through other sources.</p> <p>Plaintiff also presented William Ewing, a Certified Industrial Hygienist.&nbsp;Ewing testified that the decedent was exposed to asbestos by using picks, chisels, and hammers to remove John Crane packing, and by using brushes and sanders to dislodge or reshape John Crane gaskets.&nbsp;Ewing quantified the duration of the decedent&rsquo;s exposure (1957 to 1985) and his alleged dosage amount (.05 to 1 fibers per cubic centimeter when removing and installing gaskets; .05 to 2 fibers per cubic centimeter when removing packing).&nbsp;</p> <p>At the close of evidence, during the jury instruction conference, the plaintiff presented the standard Illinois Pattern Jury Instruction for proximate causation.&nbsp;John Crane objected and presented its own instruction regarding proximate cause.&nbsp;John Crane argued that the jury instruction should have included language requiring the jury to find that John Crane&rsquo;s products were a &ldquo;substantial factor&rdquo; in the development of the decedent&rsquo;s illness in order for proximate cause to exist.&nbsp;John Crane further submitted an instruction defining substantial factor as if, absent John Crane&rsquo;s conduct, the injury would not have occurred.&nbsp;John Crane further also submitted a &ldquo;state of the art&rdquo; instruction, which would have required the plaintiff to prove that John Crane and those in the asbestos products manufacturing industry knew of the alleged dangerous nature of John Crane&rsquo;s packing and gaskets.&nbsp;John Crane argued that such knowledge was required to establish a duty to warn.&nbsp;The trial court rejected these instructions submitted by John Crane.</p> <p>Ultimately, a Cook County jury found for the plaintiff and entered a $6 million verdict.&nbsp;The trial court reduced the verdict to $4.8 million to account for pre-trial settlements.&nbsp;</p> <p>In a posttrial motion, John Crane argued that Dr. Abraham should not have been allowed to testify because he essentially testified that the decedent&rsquo;s cumulative dose (or &quot;each and every exposure&quot;) to all asbestos products caused his injuries.&nbsp;In other words, John Crane claimed that Dr. Abraham failed to differentiate the decedent&rsquo;s exposure through John Crane products from his exposure through other sources.&nbsp;In addition to arguing that the court erred in rejecting the previously discussed jury instructions, John Crane also argued that the trial court erred by failing to properly analyze settlements the plaintiff entered into with certain defendants.&nbsp;The trial court denied John Crane&rsquo;s motion.</p> <p>On appeal, the First District first determined that the trial court properly allowed Dr. Abraham to testify.&nbsp;The court determined that Dr. Abraham did not testify that even a &ldquo;de minimis&rdquo; exposure to asbestos can cause illness.&nbsp;Rather, the court characterized Dr. Abraham&rsquo;s testimony as emphasizing the importance of understanding the dose of asbestos fibers to which a person was exposed when determining causation.&nbsp;Moreover, the court believed the plaintiff established the dose of the decedent&rsquo;s exposure through William Ewing&rsquo;s testimony, who quantified the decedent&rsquo;s exposure range and opined that the dosage level exceeded the background rate of asbestos exposure one would experience from the ambient environment.&nbsp;Overall, the court concluded that Dr. Abraham&rsquo;s testimony provided the background knowledge the jury required to interpret Ewing&rsquo;s opinions regarding the dose of the decedent&rsquo;s asbestos exposure through John Crane products. &nbsp;&nbsp;</p> <p>John Crane also argued that the trial court erred in excluding proposed jury instructions that included language regarding Illinois' substantial factor causation test.&nbsp;On this point, John Crane appeared to argue that the jury should have been instructed on the Illinois frequency, regularity, and proximity causation standard used in asbestos cases.&nbsp;The court found that the Illinois pattern instructions on causation (which do not use the terms substantial factor or frequency, regularity, proximity) sufficiently instructed the jury.&nbsp;The court also determined that using these terms in instructions would have improperly suggested that the plaintiff had to prove a specific dosage amount, when, under Illinois law, a plaintiff need only prove that exposure by a defendant was legally significant.&nbsp;The appellate court seemed to take the position that the frequency, regularity, proximity test is relevant when the court is making a legal determination on whether or not the plaintiff has met her burden of proof in an asbestos case, but the jury should not be given instructions using this language because it suggests that the plaintiff must quantify her exposure levels.&nbsp;</p> <p>As to John Crane&rsquo;s proposed &ldquo;state of the art&rdquo; jury instruction, John Crane argued that the jury should have been instructed that the plaintiff was required to prove either that John Crane specifically knew of the hazards of asbestos or, if not, that members of John Crane's industry had such knowledge.&nbsp;The court rejected this argument because there was evidence in the case that John Crane itself had knowledge regarding the dangers of asbestos when the decedent used its products.&nbsp;Moreover, the court believed that John Crane&rsquo;s proposed instruction would have required the jury to find both that John Crane and those in its industry knew of the dangerous nature of John Crane&rsquo;s products.&nbsp;According to the court, industry knowledge can be used to support a failure to warn claim, but it is not necessary evidence.&nbsp;Rather, the defendant's knowledge is at issue in such a claim.</p> <p>Finally, the court rejected John Crane's argument that certain settled defendants should have appeared on the jury form and that the court should have compelled the plaintiff to disclose the amounts of certain pre-trial settlements.&nbsp;The court reasoned that it is well settled Illinois law that a party defendant cannot include former co-defendants or non-parties on the verdict form.&nbsp;As to the settlement amount issue, John Crane argued that the trial court erred in finding that the plaintiff reached good faith settlements with certain defendants without requiring the parties to disclose the settlement amounts.&nbsp;In rejecting this argument, the court determined that the trial court had sufficient evidence &ndash; including the plaintiff&rsquo;s theory of liability, that plaintiff sought in excess of $50,000, and that John Crane was asserting a sole proximate cause defense &ndash; to make its good faith findings without the need to determine the amounts of the settlements.&nbsp;</p> <p>Overall, while there have been recent positive rulings favoring defendants from the First District and the Circuit Court of Cook County in asbestos litigation, those rulings have largely been limited to the issue of personal jurisdiction.&nbsp;Unfortunately for defendants, the court&rsquo;s opinion in this case is largely consistent with the trial court&rsquo;s rulings on these issues.&nbsp;However, a possible silver lining is that defendants might be able to rely on this opinion to argue that, at trial, plaintiffs cannot simply argue that all exposures to asbestos cause or contribute to the development of mesothelioma, but rather, must present some evidence establishing the dosage level of a plaintiff&rsquo;s asbestos exposure.&nbsp;</p> District Missouri Court of Appeals Overturns Talc Verdict Nov 2019Product Liability Law Blog<p>On October 15, 2019 the Missouri Court of Appeals for the Eastern District overturned a jury verdict, including punitive damages, to an out of state plaintiff. The Court ruled that the trial court lacked personal jurisdiction to render the verdict pursuant to recent United States Supreme Court authority.</p> <p align="center"><u>Facts</u></p> <p>Plaintiff Lois Slemp, a resident of Virginia, was one of sixty-two plaintiffs alleging claims against defendants Johnson &amp; Johnson, Johnson &amp; Johnson Consumer Companies, Inc. and Imerys Talc America, Inc. for personal injuries related to use of talc products produced, manufactured and sold by defendants.&nbsp;Plaintiff&rsquo;s claim was tried separately, and the jury awarded a verdict in her favor for actual and punitive damages in May 2017.&nbsp;Judgment was entered on August 3, 2017, including a finding by the trial court pursuant to Missouri Rule of Civil Procedure 74.01(b) that there was no just reason to delay entry of final judgment for purposes of proceeding with appeal.&nbsp;</p> <p>After the verdict but before judgment was entered, the landmark United States Supreme Court personal jurisdiction case, <i>Bristol-Myers Squibb v. Superior Court of Ca.</i>, 137 S.Ct. 1773 (2017), was handed down.&nbsp;Following entry of judgment, defendants filed a timely post-trial motion on September 1, 2017 seeking dismissal of plaintiff&rsquo;s claims for lack of personal jurisdiction based upon the <i>BMS</i> case.&nbsp;Defendants argued that under the <i>Bristol-Myers </i>case, there was no basis for the trial court to exercise specific personal jurisdiction over the non-resident plaintiff&rsquo;s claims where none of the circumstances leading to the plaintiff&rsquo;s claim occurred in the State of Missouri.&nbsp;</p> <p>Plaintiff later filed a motion requesting the Court temporarily vacate the judgment, and allow discovery on the issue of personal jurisdiction.&nbsp;On November 29, 2017, the trial court denied both defendants&rsquo; motions to dismiss for lack of personal jurisdiction and plaintiff&rsquo;s motion to vacate and reopen discovery.&nbsp;The trial court also issued an order striking the Rule 74.01(b) language from its original judgment. &nbsp;&nbsp;Defendants&rsquo; subsequently appealed.&nbsp;</p> <p align="center"><u>Appeal</u></p> <p>The Court of Appeals reversed the trial court&rsquo;s ruling denying defendants&rsquo; motion to dismiss on the personal jurisdiction issue, and vacated the trial court judgment in plaintiff&rsquo;s favor.&nbsp;Key to the appeal was whether the judgment entered by the trial court was final for purposes of appeal.&nbsp;Because claims remained pending as to other plaintiffs, a rule 74.01(b) finding was necessary for defendants to proceed with an appeal.&nbsp;The Court originally entered the finding on August 3, 2019, then modified the judgment on November 29, 2017.</p> <p>Under Missouri law, a trial court maintains control of its judgment for thirty days and may modify the judgment, for good cause, within this window, regardless of whether either party requests a change.&nbsp;After expiration of this original thirty-day window, a judgment may be modified only upon grounds asserted in a timely-filed post-trial motion, which must be filed within thirty days of entry of judgment.</p> <p>Because neither party filed a timely, authorized post-trial motion requesting the Rule 74.01(b) language be removed, the appellate court ruled that the trial court was without authority on November 29, 2017 to modify its judgment to remove the language certifying the judgment as final for purposes of appeal.&nbsp;The Appellate Court therefore ruled that the Order removing the Rule 74.01(b) certification language exceeded the authority of the trial court, and the appeal was properly before the Court pursuant to the language in the August 3, 2017 Judgment.&nbsp;</p> <p>After determining the judgment was final for purposes of appeal, the Court found that specific personal jurisdiction may not be established by out of state plaintiffs under circumstances arising outside the state merely by joining the claim with a Missouri plaintiff.&nbsp;Accordingly, the rulings on the personal jurisdiction motions were reversed, and plaintiff&rsquo;s judgment was reversed.</p> <p align="center"><u>Guidance for the Future</u></p> <p>When filing post-trial motions, all parties should be certain to timely request all post-trial relief, including any desired modification of judgment language, within the time allowed under procedural rules.&nbsp;Additionally, under the <i>Bristol-Myers </i>case personal jurisdiction against a defendant must be established for each claim made against it.</p> States Supreme Court Holds Counterclaim Defendants May Not Remove Diverse Lawsuits Jul 2019Product Liability Law Blog<p>In <i>Home Depot U.S.A., Inc. v. Jackson</i>, 139 S.Ct. 1743 (May 28, 2019), the U.S. Supreme Court affirmed in a 5-4 <a href="">decision</a> authored by Justice Thomas that neither the general removal provision (28 U.S.C. &sect;1441(a)) nor the removal provision in the Class Action Fairness Act of 2005 (28 U.S. C. &sect;1453(b)) permits a third-party counterclaim defendant to remove a class-action from state to federal court.</p> <p>Citibank filed a debt-collection action against George Jackson alleging he was liable for charges he incurred on a Home Depot credit card. In response, Jackson filed a counterclaim against Citibank and third-party class-action claims against Home Depot U.S.A. and Carolina Water Systems. Jackson alleged that Home Depot and Carolina Water induced homeowners to buy water treatment systems at inflated prices and engaged in unlawful referral sales and deceptive and unfair trade practices. Jackson also alleged that Citibank was jointly and severally liable for the conduct of Home Depot and Carolina Water and that his obligations under the sale were null and void. After Citibank dismissed its claims against Jackson, Home Depot removed the case to federal court under the Class Action Fairness Act (&ldquo;CAFA&rdquo;). Jackson moved to remand, arguing that precedent barred removal by a third-party/additional counter-defendant like Home Depot.</p> <p>The District Court remanded and the Fourth Circuit affirmed, relying on some almost-80 year old precedent that the general removal provision (&sect;1441(a)) did not allow Home Depot as a third-party defendant to remove the class-action claims; and concluding that CAFA&rsquo;s removal provision (&sect;1453(b)) likewise did not allow removal. The Supreme Court affirmed.</p> <p>The general removal statute, 28 U.S.C. &sect;1441(a), provides that &ldquo;any civil action&rdquo; over which a federal court would have original jurisdiction may be removed to federal court by &ldquo;the defendant or the defendants.&rdquo; Similarly, CAFA provides that a &ldquo;class action&rdquo; may be removed to federal court by &ldquo;any defendant without the consent of all defendants.&rdquo; 28 U.S.C. &sect;1453(b).</p> <p>Home Depot argued that because a third-party counterclaim defendant is a &ldquo;defendant&rdquo; to the claim against it, it may remove pursuant to &sect;1441(a). The Supreme Court disagreed based on the structure of the statute and precedent. When determining whether a district court has original jurisdiction over a civil action, it must evaluate whether that action could have been brought originally in federal court, either because it raises claims arising under federal law or because it falls within the court&rsquo;s diversity jurisdiction. The Court noted that the presence of a counterclaim is irrelevant to whether the district court has &ldquo;original jurisdiction&rdquo; over the civil action because the &ldquo;civil action&rdquo; of which the district court must have original jurisdiction is the action as defined by the plaintiff&rsquo;s complaint and the &ldquo;defendant&rdquo; to that action is the defendant to that complaint, not a party named in a counterclaim. Further, the Court noted that Congress did not intend for the phrase &ldquo;the defendant or the defendants&rdquo; in &sect;1441(a) to include third-party counterclaim defendants because the Federal Rules of Civil Procedure differentiate between third-party defendants, counterclaim defendants, and defendants. Additionally, in other removal provisions, Congress clearly extended the reach of the statute to include parties other than the original defendant (See &sect;1452(a) and &sect;&sect;1454(a) and (b)), whereas &sect;1441(a) does not so clearly extend its reach. Section 1441(a) limits removal to &ldquo;the defendant or the defendants&rdquo; in a civil action over which the district courts have original jurisdiction. Section 1441(a), therefore, does not permit removal by any counterclaim defendant, including parties brought into the suit for the first time by a counterclaim.</p> <p>Home Depot also argued that it could remove under &sect;1453(b) because of the different wording of that statute. It argued that although &sect;1441(a) permits removal only by &ldquo;the defendant or the defendants&rdquo; in a &ldquo;civil action,&rdquo; &sect;1453(b) permits removal by &ldquo;any defendant&rdquo; to a &ldquo;class action.&rdquo; The Court disagreed, holding that there was no indication that this language does anything more than alter the general rule that a civil action may not be removed on the basis of diversity jurisdiction &ldquo;if any of the &hellip; defendants is a citizen of the State in which such action is brought.&rdquo; The Court found that the two clauses in &sect;1453(b) that use the term &ldquo;any defendant&rdquo; simply clarify that certain limitations on removal do not limit removal under that section. The Court specifically found held that neither alters the limitation on who can remove, which suggests that Congress intended to leave that limit in place.</p> <p>The Court also referenced and reaffirmed its holding in <i>Shamrock Oil &amp; Gas Corp. v. Sheets,</i> 313 U.S. 100 (1941), which held that an original plaintiff may not remove a counterclaim against it. The Court found that this decades-old holding applies equally to third-party counterclaim defendants.</p> <p>Justice Alito wrote a lengthy dissenting opinion (joined by Justices Roberts, Gorsuch, and Kavanaugh), arguing that a &ldquo;defendant&rdquo; is a &lsquo;person sued in a civil proceeding&rsquo; and that the majority&rsquo;s decision leaves third-party defendants unprotected under &sect;1441 and CAFA. He thus asserted that the majority opinion reads an irrational distinction into the removal statutes.<br /> <br /> As noted by the dissent, this inability of a third-party defendant to remove raises concerns about out-of-state bias, the inability to take advantage of federal procedure rules, and the inability to use multidistrict litigation procedure.</p> Advertising: Violations of a fair trade practices statute creates new liability for firearm manufacturers and sellers Apr 2019Product Liability Law Blog<p>On December 14, 2012, Adam Lanza used his mother&rsquo;s XM15-E2S to shoot his way into the locked Sandy Hook Elementary School. Lanza killed twenty-six persons and wounded two others.&nbsp;The attack lasted four and one-half minutes.&nbsp;One hundred fifty-four rounds from Lanza&rsquo;s XM15-E2S were fired.</p> <p>The XM15-E2S Bushmaster is an AR-15 assault style semi-automatic rifle.&nbsp;It is similar to the standard issue M16 military service rifle used by the United States Armed Forces.&nbsp;Following the shooting, plaintiffs (Sandy Hook parents and others) filed actions against the Bushmaster Firearms International, LLC company (Remington) alleging a number of distinctive theories of liability.&nbsp;Among these was the claim that defendant wrongfully advertised and marketed Lanza&rsquo;s assault rifle, emphasizing its character as a military style assault rifle suitable for offensive combat missions.&nbsp;Plaintiffs alleged, among other things, that this advertising was unethical, oppressive, immoral, unscrupulous, and in violation of the Connecticut Unfair Trade Practices Act (&ldquo;CUTPA&rdquo;).&nbsp;Defendants countered that the CUTPA was not broad enough to encompass such a claim and that defendants were immunized from suit by the federal Protection of Lawful Commerce in Arms Act (&ldquo;PLCAA&rdquo;).</p> <p>The trial court agreed.&nbsp;On appeal, however, the Connecticut Supreme Court in <i>Soto v. Bushmaster Firearms International, et al. </i>concluded that the PLCAA did not immunize firearms manufacturers or suppliers who engage in wrongful marketing practices promoting criminal conduct.&nbsp;The Court also found that the CUTPA was indeed broad enough to address wrongful advertising practices and that it would fall to a jury to decide whether or not the defendant&rsquo;s advertising violated standards set forth in Connecticut&rsquo;s Unfair Trade Practices Act.</p> <p>The CUTPA is an unfair and deceptive acts and practices statute with counterparts in every state.&nbsp;These acts prohibit deceptive, unfair and unconscionable practices and commonly create private rights of action for individuals harmed by the practices prohibited. Many such statutes also create authority for governmental entities or state consumer protection officials to bring suit.</p> <p>Historically, firearms manufacturers and sellers have relied on the PLCAA bar to claims and immunize them from suits for injuries caused by the criminal conduct of third-party gun users.&nbsp;The Court in <i>Soto,</i> however, held that the PLCAA did not insulate Bushmaster from claims related to its advertising and marketing of the XM15-E2S assault style weapon.</p> <p>The Connecticut Supreme Court also found that while prior interpretations limited the reach of the CUTPA with respect to such claims, plaintiffs&rsquo; claims in this case would be permitted. The holding expands the scope of the Connecticut statute in at least three important respects: (1) plaintiffs no longer need to have a &ldquo;commercial relationship&rdquo; with defendant; (2) personal injuries are now a cognizable harm under the CUTPA; and (3) continuous advertising up to and including the date of plaintiffs&rsquo; filing prohibits the tolling of applicable statutes of limitation.</p> <p>While this ruling greatly changes the use and landscape of the CUTPA in Connecticut, the Court has only addressed the issue of standing in this case and no disposition has yet been made on the merits of plaintiffs&rsquo; claims.</p> <p>The ruling is likely to encourage plaintiffs in other states to challenge advertising and marketing by firearm manufacturers under similar and applicable unfair practices acts. Plaintiffs&rsquo; challenge in Connecticut may be the first of many such efforts yet to come.</p> <p><i>Soto v. Bushmaster Firearms Int'l, LLC,</i> 331 Conn. 53, 157 (2019)</p> Rebuffs Ninth Circuit's Attempt to "Soften" Deadline to Appeal Class Action Certification Mar 2019Product Liability Law Blog<p>The deadline to appeal an order granting or denying class certification is a rigid one that is not subject to equitable tolling, according to a unanimous United States Supreme Court. Reversing the Ninth Circuit Court of Appeals, the high court found that lower courts lack the power to relax the 14-day deadline for filing a petition for permission to appeal class-certification rulings.</p> <p><i><a href="">Nutraceutical Corporation v. Lambert</a></i> arose from a putative consumer class action filed against the maker of a dietary supplement.&nbsp;Although the Central District of California initially certified a class of similarly situated plaintiffs, it later changed its decision and entered an order decertifying the class.&nbsp;Rule 23(f) of the Federal Rules of Civil Procedure provides that a petition for permission to appeal that order had to be filed with the Ninth Circuit Court of Appeals within 14 days.&nbsp;</p> <p>However, 10 days after the ruling, the plaintiffs&rsquo; lawyers informed the district court at a status hearing that they intended to file a motion for reconsideration of the order decertifying the class.&nbsp;The district judge instructed them to do so within 10 days of the hearing&mdash;20 days from the decertification order&mdash;which they did.&nbsp;Several months later, the trial court denied the motion for reconsideration, and the plaintiffs&rsquo; lawyers then filed their petition for permission to appeal.&nbsp;While the petition for permission to appeal was filed within 14 days of the order denying reconsideration, it was more than four months after the initial order decertifying the class action.&nbsp;</p> <p>Notwithstanding this apparent procedural defect, the Ninth Circuit accepted the appeal.&nbsp;It rejected the manufacturer&rsquo;s argument that the appeal was untimely, primarily because the plaintiffs&rsquo; lawyers had told the trial court of their intention to seek reconsideration within the initial 14-day window and then sought permission to appeal within 14 days of the denial of that motion for reconsideration.&nbsp;To reach this result, it invoked the doctrine of equitable tolling to &ldquo;soften&rdquo; the deadline and permit the appeal.&nbsp;True to its reputation as a judicial outlier, the Ninth Circuit acknowledged contrary authority from the Second, Third, Fourth, Fifth and Seventh Circuits and admitted those courts &ldquo;would likely not toll the Rule 26(f) deadline&rdquo; under these circumstances. &nbsp;</p> <p>The United States Supreme Court took a far more rigid view of the 14-day deadline imposed by Rule 26(f), describing it as &ldquo;purposefully unforgiving.&rdquo;&nbsp;Writing for a unanimous court, Justice Sonia Sotomayor framed the issue as whether the text of the rules left room for flexibility in how this deadline is imposed.&nbsp;Although appellate courts have very broad authority under the Federal Rules of Appellate Procedure to &ldquo;suspend any provision of these rules in a particular case,&rdquo; that flexibility comes with an important caveat: Appellate Rule 26 expressly provides that courts of appeals &ldquo;may not extend the time to file [&hellip;] a petition for permission to appeal.&rdquo;&nbsp;The court found that this language shows &ldquo;a clear intent to compel rigorous enforcement&rdquo; of the 14-day deadline to file with the appellate court.&nbsp;&ldquo;Courts may not,&rdquo; Justice Sotomayor concluded, &ldquo;disregard a properly raised procedural rule&rsquo;s plain import any more than they may a statute&rsquo;s.&rdquo;</p> <p>The plaintiffs&rsquo; lawyers tried to draw a distinction between &ldquo;extending the time to file&rdquo; a petition to appeal, which Appellate Rule 26 expressly forbids, with a decision &ldquo;to excuse late filings on equitable grounds after the fact.&rdquo;&nbsp;Relying on prior Supreme Court precedent under the analogous rules of criminal procedure, the high court rejected this type of hair-splitting.&nbsp;No matter how it is described, the acceptance of a late filing is a de facto extension of time.</p> <p>But this opinion does not completely dash these plaintiffs&rsquo; attorneys&rsquo; hopes of appealing the decertification of their class.&nbsp;The Supreme Court declined to weigh in on two of their primary arguments for certification, because those were not addressed by the underlying court of appeals opinion.&nbsp;This leaves the Ninth Circuit free to revive those arguments on remand.&nbsp;</p> <p>First, the plaintiffs&rsquo; lawyers argued that regardless of whether the deadline for a petition for permission to appeal could be extended, the trial court could extend the time to file a motion for reconsideration, and they claimed the district court did just that when it instructed them to file their motion for reconsideration within 10 days of the hearing. &nbsp;Alternatively, they argued that the order denying reconsideration was itself an &ldquo;order granting or denying class-action certification,&rdquo; starting a new 14-day window in which to file a petition to appeal, even if they had blown the initial deadline.&nbsp;In either case, the crux of the argument is that the deadline to file a petition for permission to appeal should have been calculated from the date the motion for reconsideration was denied, not the date of the initial class decertification.</p> <p>And these arguments might have some legs, too.&nbsp;The Supreme Court carefully confined its analysis to the narrow issue of whether equitable tolling could be applied to the deadline to appeal class certification orders, since that was the sole basis for the Ninth Circuit&rsquo;s ruling.&nbsp;Justice Sotomayor even acknowledged that a timely motion for reconsideration can render an otherwise final decision not final for appeal purposes. &nbsp;The question of whether the motion for reconsideration was timely and, if so, its effect remains unanswered.&nbsp;This means the parties&rsquo; appellate battle is not over, with the next round back before the Ninth Circuit.&nbsp;And regardless of how that court rules, a second appeal to the Supreme Court may be necessary to untie the rest of this procedural knot.</p> Preemption Doesn't Bar Railroad's Suit Against Locomotive Seat Manufacturer Aug 2018Product Liability Law Blog<p>In <i>BNSF Railway Co. v. Seats, Inc.</i>, a Burlington Northern Santa Fe locomotive engineer was injured when the backrest of his locomotive seat broke.&nbsp; The engineer sued&nbsp;BNSF under the Federal Employers Liability Act alleging&nbsp;the seat did not comply with standards articulated in the Locomotive Inspection Act (&ldquo;LIA&rdquo;) The LIA requires all locomotives and their components to be &ldquo;in proper condition and safe to operate without unnecessary danger of personal injury&rdquo;.&nbsp;</p> <p>BNSF settled the engineer&rsquo;s lawsuit.&nbsp; Thereafter, BNSF sued Seats, Inc. to recover its settlement costs. &nbsp;Seats designed, manufactured and marketed the locomotive seat that injured the engineer.&nbsp; BNSF sought relief under products liability and breach of contract theories.&nbsp; The district court decided BNSF&rsquo;s claims were preempted by the LIA, and granted Seats&rsquo; motion to dismiss BNSF&rsquo;s claims.</p> <p>On appeal, the Eighth Circuit noted that the LIA does not confer a private right of action on injured railroad workers.&nbsp; Rather, the LIA establishes standards of care that are enforced by a private right of action for railroad employees under the FELA.&nbsp; These standards of care, in the interest of national uniformity, are intended to occupy the field of locomotive design, materials and construction.&nbsp; Thus,&nbsp;quoting the U.S. Supreme Court decision in <i>Kurns v. Railroad Friction Products Corp</i>., 565 U.S. 625 (2012), the Eighth Circuit stated that &ldquo;state common law duties and standards of care directed to the subject of locomotive equipment are pre-empted by the LIA&rdquo;.&nbsp;</p> <p>The Court framed the primary issue in the case as whether the LIA preempts state claims based on federal standards of care.&nbsp;&nbsp; Seats argued that state claims based on federal standards compromise national uniformity.&nbsp;&nbsp; The Court disagreed, and held that &ldquo;&hellip;the enforcement under state law of a federal standard of care does not undermine national uniformity because it does not impose conflicting regulations that a railroad must heed during interstate travel.&rdquo;&nbsp;&nbsp;</p> <p>In determining that the District Court erred in ruling that the LIA preempts BNSF&rsquo;s products liability claim, the Court added that if it were to hold that state law claims asserting LIA violations are preempted, the nation&rsquo;s railroads would be left without a remedy, no matter how glaring the liability of an equipment supplier.&nbsp;</p> <p>BNSF&rsquo;s breach of contract claim was based on Seats&rsquo; contract with the locomotive manufacturer, General Electric. &nbsp;&nbsp;Seats and GE executed a contract that required Seats to manufacture locomotive seats &ldquo;in compliance with the LIA&rdquo; for installation in the locomotive.&nbsp; BNSF alleged Seats breached this contract by providing a defective seat. &nbsp;</p> <p>Seats successfully argued to the District Court that BNSF&rsquo;s breach of contract claim was a repackaged version of its products liability claim that was also preempted by the LIA.&nbsp; Again, the Eighth Circuit disagreed.&nbsp; &nbsp;The Court&rsquo;s reasoning on the breach of contract claim was two-pronged.</p> <p>First, the Court noted that &ldquo;[j]ust as there is room for state tort remedies, there is room for state contract remedies associated with the federal standards embodied in the LIA&rdquo;.&nbsp;&nbsp;Second, the Court found that the breach of contract claim did not require compliance with a state duty or standard of care.&nbsp; Instead, the claim was based on a duty that was voluntarily assumed and not imposed by state law. &nbsp;&nbsp;Therefore, these &ldquo;self-imposed undertakings&rdquo; are not preempted by federal law.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p><u>Commentary:&nbsp;</u>The&nbsp;<i>Seats</i>&nbsp;<a href="">decision</a> provides great clarity to the commercial relationships between railroads and vendors whose products are covered by federal standards of care.&nbsp; The case is certainly not the first among such entities, and the Eighth Circuit has provided a definitive guide for current and future litigation.</p> Class: SCOTUS Holds That Tolling Properties of Class Actions Only Apply to Individual Cases, Not Future Class Actions Jul 2018Product Liability Law Blog<p>The recent United States Supreme Court <a href="">decision</a> <i>China Agritech, Inc. v. Resh</i>, 201 L. Ed. 2d 123 (2018), sensibly resolved some existing confusion about the tolling effect that a putative class action creates for the members of a proposed class. In its 1974 decision in <i>American Pipe &amp; Constr. Co. v. Utah</i>, the Court held that a timely filed class action effectively tolls any applicable statute of limitations for persons who are a part of the proposed class.&nbsp; The Court elaborated on this rule in 1983 in <i>Crown, Cork &amp; Seal Co. v. Parker</i>, stating that the tolling rule applies to putative class members who, if class certification is denied, &ldquo;prefer to bring an individual suit rather than intervene.&rdquo;&nbsp; This sparked a slew of actions by plaintiff&rsquo;s attorneys who argued that the tolling rule applied to both individual claims as well as successive class actions after an original class&rsquo; certification was denied. &nbsp;Defense attorneys, understandably, felt differently, and argued against the application of equitable estoppel by some courts, to permit the filing of &ldquo;stacked&rdquo; class actions.</p> <p>The Court&rsquo;s unanimous ruling in <i>China Agritech, Inc. v. Resh</i> sets the record straight and makes clear that the rule in <i>American Pipe</i> &ldquo;tolls the statute of limitations during the pendency of a putative class action, allowing unnamed class members to join the action individual or file individual claims if the class fails.&nbsp; But <i>American Pipe </i><b>does not</b> permit the maintenance of a follow-on class action past expiration of the statute of limitations.&rdquo;&nbsp;</p> <p>While widely anticipated, the ruling was no less vital to class action defendants.&nbsp; Under the arguments advanced by plaintiff&rsquo;s attorneys, new class actions could conceivably be stacked end-to-end in perpetuity once an original class action had been timely filed.&nbsp; The Court recognized this perpetual domino effect, and Justice Ginsburg, writing for the Court, viewed this as a fundamental matter of judicial efficiency.&nbsp; <i>American Pipe</i> properly applies to permit tolling of individual claims, &ldquo;because economy of litigation favors delaying those claims until after a class-certification denial.&nbsp; If certification is granted, the claims will proceed as a class and there would be no need for the assertion of any claim individually.&rdquo;&nbsp; Early assertion of competing class representative claims is beneficial because it allows &ldquo;the district court [to] select the best plaintiff with knowledge of the full array of potential class representatives and class counsel.&rdquo; &nbsp;The Court&rsquo;s holding effectively ensures class-action defendants that if class certification is denied in the first place, successive nearly-identical class suits will not follow, assuming the time period contemplated by the statute of limitations has passed.</p> The ruling comes as a relief to would-be class action defendants concerned that an already time consuming and dreadfully expensive area of litigation could multiply exponentially.&nbsp; Moreover, the stacking of successive class actions could have effectively allowed plaintiffs to &ldquo;test the waters&rdquo; in an original class suit, knowing there would be a fall back option, in a later-filed case.&nbsp; Class action defendants can now rest a little easier knowing that if class certification is defeated, future liability will be limited to individual claims if the statute of limitations period has expired.&nbsp;&nbsp;