BSCR Firm News/Blogs Feedhttps://www.bscr-law.com/?t=39&anc=371&format=xml&directive=0&stylesheet=rss&records=10en-us23 Aug 2019 00:00:00 -0800firmwisehttps://blogs.law.harvard.edu/tech/rssUnited States Supreme Court Holds Counterclaim Defendants May Not Remove Diverse Lawsuitshttps://www.bscr-law.com/?t=40&an=95713&format=xml&p=5258&stylesheet=blog25 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="https://www.supremecourt.gov/opinions/18pdf/17-1471_e2p3.pdf">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>https://www.bscr-law.com?t=39&anc=371&format=xml&directive=0&stylesheet=rss&records=10Dangerous Advertising: Violations of a fair trade practices statute creates new liability for firearm manufacturers and sellershttps://www.bscr-law.com/?t=40&an=90384&format=xml&p=5258&stylesheet=blog04 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>https://www.bscr-law.com?t=39&anc=371&format=xml&directive=0&stylesheet=rss&records=10SCOTUS Rebuffs Ninth Circuit's Attempt to "Soften" Deadline to Appeal Class Action Certificationhttps://www.bscr-law.com/?t=40&an=90111&format=xml&p=5258&stylesheet=blog25 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="https://www.supremecourt.gov/opinions/18pdf/17-1094_bq7d.pdf">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>https://www.bscr-law.com?t=39&anc=371&format=xml&directive=0&stylesheet=rss&records=10Federal Preemption Doesn't Bar Railroad's Suit Against Locomotive Seat Manufacturerhttps://www.bscr-law.com/?t=40&an=79840&format=xml&p=5258&stylesheet=blog24 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="http://media.ca8.uscourts.gov/opndir/18/08/171399P.pdf">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>https://www.bscr-law.com?t=39&anc=371&format=xml&directive=0&stylesheet=rss&records=10No Class: SCOTUS Holds That Tolling Properties of Class Actions Only Apply to Individual Cases, Not Future Class Actionshttps://www.bscr-law.com/?t=40&an=79108&format=xml&p=5258&stylesheet=blog31 Jul 2018Product Liability Law Blog<p>The recent United States Supreme Court <a href="https://www.supremecourt.gov/opinions/17pdf/17-432_08m1.pdf">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;https://www.bscr-law.com?t=39&anc=371&format=xml&directive=0&stylesheet=rss&records=10North Carolina Court Finds Employer's Negligence to Be Superseding, Sole Proximate Cause of Asbestos Plaintiff's Injurieshttps://www.bscr-law.com/?t=40&an=74491&format=xml&p=5258&stylesheet=blog07 Feb 2018Product Liability Law Blog<p>Plaintiff appealed a jury verdict in the District Court for the Western District of North Carolina in favor of an asbestos product vendor. Plaintiff claimed that the verdict form, which included a series of questions as to each defendant, caused the jury to render a legally inconsistent verdict and requested partial entry of judgment in his favor or a new trial.&nbsp; The 4<sup>th</sup> Circuit U.S. Court of Appeals affirmed the judgment.</p> <p align="center"><u>Facts</u></p> <p style="text-align: left;">Plaintiff Erik Ross Phillips alleged that he contracted mesothelioma from exposure to asbestos-containing brake linings used in a machine at the facilities of his employer, Champion International Paper Company.&nbsp; The brake linings were manufactured by Reddaway Manufacturing Company and sold to International Paper by Pneumo Abex, LLC.&nbsp; Plaintiff filed suit against Abex on a negligent failure to warn theory.</p> <p>At trial Abex argued that even if it was negligent, the intervening negligence of Plaintiff&rsquo;s employer was the sole proximate cause of Plaintiff&rsquo;s injury.&nbsp; Under North Carolina law, where both defendant and a third party are negligent, but the third party&rsquo;s negligence is the sole proximate cause of the plaintiff&rsquo;s injury, plaintiff cannot recover from the defendant.</p> <p>The jury was submitted questions on the verdict form asking them first to determine, for each defendant, whether plaintiff&rsquo;s injury was proximately caused by any negligence of the defendant.&nbsp; If the answer was &ldquo;Yes,&rdquo; the jury was next asked whether any negligence on the part of a third party served to be a superseding or intervening cause of the injury suffered by defendant.</p> <p>The jury found initially that Abex&rsquo;s negligence was the sole proximate cause of plaintiff&rsquo;s injury, but next found that the negligence of a third party was a superseding or intervening cause of the injury suffered by plaintiff.&nbsp; Based upon these answers, the Court entered judgment on behalf of Abex, taking the jury&rsquo;s answers to the verdict form questions to mean that the jury believed that the negligence of a third party was an intervening cause of plaintiff&rsquo;s injuries which became the sole proximate cause.&nbsp; Plaintiff then appealed.</p> <p align="center"><u>The Verdict Form Did Not Present an Inconsistent Verdict Under North Carolina Law</u></p> <p>&nbsp;On appeal Phillips argued that the jury&rsquo;s answer to the verdict form questions rendered a legally inconsistent verdict.&nbsp; Because the jury found both that Abex&rsquo;s negligence was the proximate cause of plaintiff&rsquo;s injury in answer to the verdict form first question, and that a third party&rsquo;s negligence was the cause in the answer to the second, the verdict was inconsistent since both could not legally be the proximate cause of plaintiff&rsquo;s injuries.&nbsp; The Court disagreed.</p> <p>The Appellate Court pointed to North Carolina law, indicating that to insulate the negligence of a party, the intervening negligence of a third party must break the sequence or causal connection between the negligence of the first party and the plaintiff&rsquo;s injury so as to exclude the negligence of the first party as a proximate cause of the injury.&nbsp; &ldquo;It must be an independent force which entirely supersedes the original action and renders its effect in the chain of causation remote.&rdquo;&nbsp; The Court noted that, under the state law, although there may be more than one proximate cause, a new and entirely independent source of negligence, breaking the sequence of events between the first source of negligence and the injury, will insulate the first source of negligence from liability.</p> <p>The District Court treated the intervening negligence of plaintiff&rsquo;s employer as an affirmative defense &ndash; the burden of proof for proving third party negligence belonged to Abex &ndash; and ruled that, even if the jury found negligence on the part of Abex, the intervening negligence of plaintiff&rsquo;s employer would act to relieve Abex of liability.&nbsp; The Court found that the jury was properly instructed on these issues, and, subsequently, the jury&rsquo;s findings were in accordance with North Carolina law.&nbsp; The second finding by the jury, that the intervening negligence of plaintiff&rsquo;s employer was the cause of plaintiff&rsquo;s injury, was a new proximate cause which extinguished the proximate cause finding by the jury against Abex.&nbsp; Accordingly, Phillips&rsquo; appeal was denied.</p> <p align="center"><u>Conclusion</u></p> <p>When making determinations regarding whether proximate cause exists, parties will want to consider whether a superseding or intervening cause for a claimant&rsquo;s injury is a defense to claims.&nbsp; Even where a defendant&rsquo;s conduct may be a source of negligence, the negligence may not be the proximate cause of the claimed injury.</p>https://www.bscr-law.com?t=39&anc=371&format=xml&directive=0&stylesheet=rss&records=10You've Got Mail - Service of Process by Mail is Satisfactory under the Hague Service Conventionhttps://www.bscr-law.com/?t=40&an=66357&format=xml&p=5258&stylesheet=blog30 May 2017Product Liability Law Blog<p>Serving judicial documents on individuals and companies located outside the United States can be a time-consuming and expensive process. First, you have to figure out if the person or entity to be served is located in a country covered by the Convention on the Service Abroad of Judicialand Extrajudicial Documents in Civil and Commercial Matters (a.k.a. the <br /> &ldquo;Hague <a href="https://advance.lexis.com/api/document?collection=statutes-legislation&amp;id=urn:contentItem:403V-CCW0-00V4-M3X5-00000-00&amp;context=">Convention</a>&rdquo;) or another international service treaty.&nbsp; Then, you have to determine whether that country opposes certain Articles of the Convention or other applicable service treaties.&nbsp; After all of that, you still have to jump through the country-specific hoops to effectuate proper service.</p> <p>But on May 22, 2017, the United States Supreme Court provided a definitive answer to one question over which there has been a long-standing disagreement.&nbsp; Specifically, the Court resolved the split among courts as to whether the Convention permits service by mail.&nbsp;</p> <p>Until now, some courts, like those in the Fifth and Eighth Circuits and in Texas, had held that the Convention does not permit service by mail.&nbsp; <i>See</i> <i>Nuovo Pignone v. Storman Asia M/V</i>, 310 F.3d 374 (5<sup>th</sup> Cir. 2002); <i>Bankston v. Toyota Motor Corp., </i>889 F.2d. 172, 173-74 (8<sup>th</sup> Cir. 1989); <i>Velasco v. Ayala</i>, 312 S.W.3d 783 (Tex. Ct. App. 2009).&nbsp; In contrast, courts in the Second, Fourth and Ninth Circuits and in California had concluded that the Convention allows service by mail.&nbsp; <i>See</i> <i>Ackerman v. Levine</i>, 788 F.2d 830 (2nd Cir. 1986); <i>Koehler v. Dodwell,</i> 152 F.3d 304 (4<sup>th</sup> Cir. 1998); <i>Brockmeyer v. May, </i>383 F.3d 798 (9<sup>th</sup> Cir. 2004); <i>Shoel Kako v.Superior Court, </i>33 Cal.App.3d 808 (Cal. App. 1973).</p> <p>In <i>Water Splash, Inc. v. Menon</i>, 2017 LEXIS 3212, the Supreme Court unanimously sided with those courts which have allowed service of process by mail.&nbsp; Specifically, the Court held that the Convention permits service by mail if: (a) the receiving country has not objected to service by mail; and (b) service by mail is authorized under otherwise-applicable law.&nbsp;</p> <p>At issue in <i>Water Splash</i> was the text of Article 10 of the Convention.&nbsp; The English version states:</p> <p style="margin-left: 40px;">&ldquo;Provided the State of destination does not object, the present Convention shall not interfere with &ndash;</p> <p style="margin-left: 80px;">(a)&nbsp;&nbsp;&nbsp; The freedom <b>to send</b> judicial documents, by postal channels, directly to persons abroad,</p> <p style="margin-left: 80px;">(b)&nbsp;&nbsp; The freedom of judicial officers, officials or other competent persons of the State of origin <b>to effect service</b> of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,</p> <p style="margin-left: 80px;">(c)&nbsp;&nbsp;&nbsp; The freedom of any person interested in a judicial proceeding <b>to effect service</b> of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.&rdquo;</p> <p>(Emphasis added).The dispute in <i>Water Splash</i> and the other cases in which parties contested service by mail under the Convention centered around the use of the word &ldquo;send&rdquo; in Article 10(a) compared to the use of the phrase &ldquo;to effect service&rdquo; in Articles 10(b) and 10(c).</p> <p>To reach its unanimous decision in <i>Water Splash, </i>the Court looked at the text of the Convention, the structure of the Convention, and extratextual sources.&nbsp; The Court emphasized that &ldquo;the scope of the Convention is limited to service of documents&rdquo; and that in fact, &ldquo;[e]ven the Convention&rsquo;s full title [Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters] reflects that the Convention concerns &lsquo;Service Abroad.&rsquo;&rdquo;</p> <p>Because the entire framework of the Convention concerns service of documents, according to the Court, &ldquo;it would be quite strange if Article 10(a) &ndash; apparently alone among the Convention&rsquo;s provisions &ndash; concerned something other than service of documents.&rdquo; Thus, for &ldquo;Article 10(a) to do any work, it <i>must</i> pertain to sending documents for purposes of service.&rdquo;(Emphasis in original).</p> <p>The defendant futilely tried to counter that logic by arguing that Article 10(a) applies to &ldquo;post answer judicial documents&rdquo; but does not apply to service of process documents.&nbsp; But the Court rejected that argument, because &ldquo;[i]f the drafters wished to limit Article 10(a) to a particular subset of documents, they presumably would have said so.&rdquo; Plus, Article 10(a) uses the same phrase &ldquo;judicial documents&rdquo; as used in Articles 10(b) and 10(c).&nbsp; Therefore, &ldquo;the notion that Article 10(a) governs a different set of documents than 10(b) or 10(c) is hard to fathom.&rdquo;&nbsp;</p> <p>The Court even relied on the French version of the Convention to support the conclusion that the Convention permits service by mail.&nbsp; The Court noted that the &ldquo;French version of the Convention is &lsquo;equally authentic&rsquo; to the English version.&rdquo;&nbsp; And the French counterpart to the word &ldquo;send&rdquo; in Article 10(a) is &ldquo;addresser&rdquo; which &ldquo;has been consistently interpreted as meaning service or notice.&rdquo;</p> <p>Finally, the Court looked at the drafting history of the convention, the Executive Branch&rsquo;s interpretation of the Convention and views of the other parties to the Convention.&nbsp; All of those extratextual sources supported the Court&rsquo;s determination that the Convention allows service by mail.&nbsp;</p> <p>Although the Convention allows service by mail, that &ldquo;does not mean that the Convention affirmatively <i>authorizes</i> service by mail.&rdquo;&nbsp; Rather, Article 10(a) &ldquo;simply provides that, as long as the receiving state does not object, the Convention does not &lsquo;interfere with &hellip; the freedom&rsquo; to serve documents through postal channels</p> <p>As the Court noted, some signatory countries (the Czech Republic, Bulgaria, Hungary, Kuwait and Turkey among them) have objected to all or parts of the service methods mentioned in Article 10.&nbsp;&nbsp;&nbsp; In those countries, service by mail is not acceptable under the Convention.&nbsp; For a complete list of countries that have opposed all or some of Article 10 (and other Articles of the Convention), see the &ldquo;Table Reflecting Applicability of Articles 8(2), 10(a)(b) and (c), 15(2) and 16(3) of the Hague Service Convention&rdquo; (December 2015) <a href="https://assets.hcch.net/docs/6365f76b-22b3-4bac-82ea-395bf75b2254.pdf">here</a>.</p> <p>The decision in <i>Water Splash</i> may make serving judicial documents in foreign jurisdictions which have not objected to service by mail easier.&nbsp; But parties will still need to analyze the specific service methods allowed by the country in which a person or entity is to be served.&nbsp; Plus, service by mail must be an appropriate means of service under the law of the originating state.&nbsp; If the receiving country has not objected to service by mail and service by mail is authorized under the applicable state law, then under <i>Water Splash, </i>service by mail is permissible.&nbsp; So, check your mail if you are located in or have company facilities in countries which allow service by mail.&nbsp; You may have just been validly served.&nbsp;</p>https://www.bscr-law.com?t=39&anc=371&format=xml&directive=0&stylesheet=rss&records=10Court Muzzles Counsel: Says Defendants Cannot Ask Plaintiffs if Their Attorneys Referred Them to Treating Physicianshttps://www.bscr-law.com/?t=40&an=65229&format=xml&p=5258&stylesheet=blog27 Apr 2017Product Liability Law Blog<p>Defense lawyers routinely ask personal injury plaintiffs how they came to be treated by their doctors. But defense lawyers in Florida will no longer be allowed to ask plaintiffs if their lawyers referred them to physicians for treatment even if those attorneys repeatedly refer their clients to the same doctors.&nbsp; In <i>Worley v. Cent. Fla. YMCA, </i>2017 Fla. LEXIS 812 April 13, 2017), the Florida Supreme Court held that the attorney-client privilege protects a party from being required to disclose if her attorney referred her to a doctor for treatment.&nbsp; In a 4-3 ruling, the Court held that asking whether a lawyer referred a client to a doctor &ldquo;implicates a confidential communication between the attorney and the client.&rdquo;&nbsp;</p> <p>In <i>Worley</i>, the plaintiff fell in the YMCA parking lot and injured her right knee.&nbsp; Because she claimed she did not have insurance, she did not see a specialist but instead retained attorneys and then sought treatment from specific orthopedic and anesthesia practices.&nbsp; During discovery, the YMCA &ldquo;repeatedly attempted to discover the relationship&rdquo; between Worley&rsquo;s law firm and her treating physicians, because the YMCA suspected there was a &rdquo;cozy agreement&rdquo; between the firm and the physicians.</p> <p>As part of the attempts to discover whether the attorneys referred the plaintiff to the treating physicians, the YMCA asked the plaintiff in her first deposition if her attorneys had referred her to the doctors.&nbsp; The plaintiff&rsquo;s attorneys objected claiming that the information was protected by the attorney-client privilege.&nbsp; In a second deposition, the YMCA asked &ldquo;how [plaintiff] was referred to her doctor.&rdquo;&nbsp; Again, plaintiff&rsquo;s counsel objected to the question.&nbsp;</p> <p>The <i>Worley</i> majority acknowledged &ldquo;[t]hat the plaintiff was treated by a particular doctor is an underlying fact.&rdquo; The majority also agreed &ldquo;[t]hat the plaintiff received a referral to see a particular doctor is also an underlying fact.&rdquo;&nbsp; Nonetheless, the court held that &ldquo;whether the plaintiff&rsquo;s attorney requested that the client see a certain doctor requires the plaintiff to disclose a part of a communication that was held between the plaintiff and the attorney.&rdquo;&nbsp;</p> <p>But the majority ignored the requirement that to be privileged, a communication between a lawyer and a client must be &ldquo;in furtherance of the rendition of legal services to the client.&rdquo;&nbsp; &sect; 90.502(1)(c) Fla. Stat. &nbsp;As discussed by the three dissenting justices, &ldquo;[a] lawyer&rsquo;s referral of a client to a treating medical provider is for the purpose of the client&rsquo;s medical care, not in furtherance of legal services.&rdquo;&nbsp; Thus, &ldquo;communications that do not involve legal advice&rdquo; should not be protected by the attorney-client privilege. The dissent thus concluded that &ldquo;if a communication is a recommendation of a physician from whom someone should seek medical treatment the referral does not constitute protected legal advice.&rdquo;</p> <p>To make matters worse, the majority seems to have restricted broader inquiries into relationships between plaintiffs&rsquo; firms and treating doctors. Before addressing whether the attorney-client privilege barred the specific question of whether the plaintiff&rsquo;s attorneys referred her to her doctors, the majority considered &ldquo;whether the financial relationship between a plaintiff&rsquo;s law firm and the plaintiff&rsquo;s treating physician [was] discoverable.&rdquo;&nbsp; The majority stated that the relationship was not discoverable because the law firm was &ldquo;not a party to the litigation&rdquo; and treating physicians are not hired for the purpose of the litigation.&nbsp;</p> <p>The majority did indicate that defendants could inquire whether the doctor provided medical care to the specific plaintiff pursuant to a &ldquo;Letter of Protection,&rdquo; to establish bias on the part of the treating doctors.&nbsp; (Letters of Protection are generally used only when patients lack insurance or adequate insurance to guarantee payment.)&nbsp; But this narrow limitation ignores whether the law firm and the treating physicians have ongoing financial relationships.&nbsp; And the majority decision would seemingly prevent defendants from discovering any referral relationship if the plaintiff has sufficient medical insurance.</p> <p>As explained by the dissent, &ldquo;[i]f a law firm routinely refers clients to the medical provider&hellip;the more it is likely that the witness has a vested interest in that financially beneficial relationship continuing.&rdquo;&nbsp;</p> <p>While the overly broad wording of the majority opinion prevents defense counsel from asking plaintiffs if they were referred to doctors by their lawyers, the decision should leave open other avenues to discover information about attorney referrals to and &ldquo;cozy agreements&rdquo; with treating doctors.&nbsp; &nbsp;Some of those opportunities should include:</p> <ol> <li>&nbsp;<b><u>Intake Forms</u></b><b>:&nbsp; </b>Most new patient forms ask who referred the patient to the doctor&rsquo;s office.&nbsp; If the plaintiff admits his attorney referred him, no privilege should apply.</li> <p>&nbsp;</p> <li><b><u>Relatives and Third Parties</u></b><b>:</b> Defense counsel should be able to ask if the plaintiffs&rsquo; friends or relatives know who referred plaintiffs to their doctors.&nbsp; In general, plaintiffs waive any attorney-client privilege if they disclose their communications with their lawyers to other people.</li> <p>&nbsp;</p> <li><b><u>Treating Physician Depositions</u></b><b>:</b> Nothing in the opinion should prevent defense counsel from asking a doctor if the doctor knows who referred the plaintiff for treatment.&nbsp; If the doctor knows it was the plaintiff&rsquo;s attorney, then the privilege has been waived through disclosure.</li> <p>&nbsp;</p> <li><b><u>Prior Testimony of the Treating Doctors</u></b><b>: </b>If the doctors have testified in other cases in which the same attorneys represented the plaintiffs, defense counsel should still be able to inquire about those prior cases.</li> </ol> <p>Thankfully, the Florida Supreme Court&rsquo;s decision in <i>Worley </i>is an outlier.&nbsp; As noted by the dissent, a lawyer&rsquo;s referral of a plaintiff to a doctor is not legal advice.&nbsp; The identity of the person who referred a patient to a doctor is an underlying fact.&nbsp; The narrow majority in <i>Worley</i> simply reached the wrong conclusion.&nbsp; Defense lawyers across the country should remain vigilant to prevent the mistaken ruling in <i>Worley</i> from spreading to other states.&nbsp;</p>https://www.bscr-law.com?t=39&anc=371&format=xml&directive=0&stylesheet=rss&records=10Federal Judges Blow Their Stacks Over Boilerplate Objectionshttps://www.bscr-law.com/?t=40&an=64518&format=xml&p=5258&stylesheet=blog27 Mar 2017Product Liability Law Blog<p>A little less than two weeks apart, two federal judges emphatically let practitioners in their districts know how much they despise boilerplate objections to written discovery. Both judges delivered the same message: boilerplate objections violate the Federal Rules of Civil Procedure, are not valid objections and could subject parties or their attorneys to sanctions. &nbsp;</p> <p>In the first order, Magistrate Judge Andrew Peck of the Southern District of New York expressed his disgust for boilerplate objections in just a few pages and most of those pages involved direct quotations from the Federal Rules, the Advisory Committee Notes to the rules and the specific requests for production and the responses to those requests.&nbsp; Stripped of the quotations, Judge Peck used fewer than a dozen paragraphs in <i>Fischer v. Forrest, </i>2017 U.S. Dist. LEXIS 28102 (S.D.N.Y. Feb. 28, 2017), to explain that boilerplate objections violate the Federal Rules in at least four ways.&nbsp;</p> <p>In contrast, Judge Mark Bennett of the Northern District of Iowa penned an expressive 45 page treatise in <i>Liguria Foods, Inc. v. Griffith Labs, Inc., </i>2017 U.S. Dist. LEXIS 35370 (N.D. Iowa Mar. 13, 2017), in which he lambasted the use of boilerplate objections and analyzed whether the use of those objections by both parties constituted sanctionable conduct.&nbsp; Ultimately, Judge Bennett decided against issuing sanctions in this particular case, but he made it clear that he will issue sanctions in future cases.&nbsp;</p> <p><b><u>Judge Peck&rsquo;s Order in<i> Fischer v. Forrest</i> </u></b></p> <p>In the opening sentence of his short order, Judge Peck declared that &ldquo;[i]t is time, once again, to issue a discovery wake-up call to the Bar in this District&hellip;&rdquo; Specifically, Judge Peck reminded practitioners that amendments to the Federal Rules of Civil Procedure took effect on December 1, 2015 and those amendments included changes to Rule 34 regarding responses to discovery requests.&nbsp; In particular, Judge Peck noted that:</p> <p style="margin-left: 40px;">(a) grounds for objections must be stated with specificity;</p> <p style="margin-left: 40px;">(b) objections must state whether responsive material is being withheld on the bases of objections; and</p> <p style="margin-left: 40px;">(c) parties must specify the time for production of documents, and if it will be a rolling, then the production will begin and end.</p> <p>Lawyers who have not changed their &ldquo;form file&rdquo; for objections to discovery requests &ldquo;violate one or more (and often all three) of these changes.&rdquo;&nbsp; Judge Peck then lamented that &ldquo;[d]espite the clarity of the no-longer-new 2015 Amendments, the Court still sees too many non-compliant Rule 34 responses.&rdquo;</p> <p>After noting that the defendant included 17 &ldquo;general objections&rdquo; in its responses to the discovery requests, Judge Peck quoted from the defendant&rsquo;s objections to the first two document requests.&nbsp; The defendant objected &ldquo;to the extent that [they are] overly broad and unduly burdensome, and not likely to lead to the discovery of relevant evidence&rdquo; and that the requests seek &ldquo;information already in Plaintiff&rsquo;s possession.&rdquo;</p> <p>According to Judge Peck, those objections violate the amended rules in at least four respects.&nbsp; First, the general objections violate Rule 34(b)(2)(B)&rsquo;s requirement that objections be stated with specificity and Rule 34(b)(2)(C)&rsquo;s requirement to indicate if responsive material is being withheld on the basis of a specific objection.&nbsp; Thus, &ldquo;[g]eneral objections should rarely be used after December 1, 2015 unless each such objection applies to each document request.&rdquo;</p> <p>Second, the defendant&rsquo;s general objections on the basis of &ldquo;non-relevance&rdquo; to the &ldquo;subject matter of the litigation&rdquo; and that the discovery is &ldquo;not likely to lead to the discovery of relevant admissible evidence&rdquo; are outdated.&nbsp; Because &quot;discovery about 'subject matter' no longer is permitted&quot; and because the &ldquo;2015 amendments deleted&rdquo; the &ldquo;likely to lead to the discovery of relevant, admissible evidence&rdquo; language, &ldquo;lawyers need to remove [that language] from their jargon.&quot;&nbsp;</p> <p>Third, objections that requests are &ldquo;overly broad and unduly burdensome&rdquo; are &ldquo;meaningless boilerplate&rdquo; because that &ldquo;language tells the Court nothing.&rdquo; Fourth, the discovery responses failed to indicate when the responsive material would be produced.&nbsp;</p> <p>Judge Peck concluded his order with an ominous warning to practitioners:</p> <p style="margin-left: 40px;">From now on in cases before this Court, any discovery response that does not comply with Rule 34&rsquo;s requirement to state objections with specificity (and to clearly indicate whether responsive material is being withheld on the basis of objection) will be deemed a waiver of all objections (except as to privilege).</p> <p><b><u>Judge Bennett&rsquo;s Order in<i> Liguria Foods, Inc. v. Griffith Labs, Inc.</i>&nbsp; </u></b></p> <p>Judge Bennett, in <i>Liguria Foods</i>, concluded his order in similar fashion. &nbsp;But unlike Judge Peck, Judge Bennett used the typewritten version of yelling to issue his warning &ndash; he concluded his order in all capital letters.&nbsp; Specifically, he announced:</p> <p style="margin-left: 40px;">NO MORE WARNINGS.&nbsp; IN THE FUTURE, USING &ldquo;BOILERPLATE&rdquo; OBJECTIONS TO DISCOVERY IN ANY CASE BEFORE ME PLACES COUNSEL AND THEIR CLIENTS AT RISK FOR SUBSTANTIAL SANCTIONS.</p> <p>In his 45-page order, Judge Bennett cites no fewer than ten scholarly articles to support his opposition to boilerplate objections, and observes that no judicial jurisdiction in the United States &ldquo;authorizes, condones, or approves of this practice[.]&rdquo; According to Judge Bennett, boilerplate objections are &ldquo;obstructionist&rdquo; and this obstructionist discovery practice is a firmly entrenched &ldquo;culture&rdquo; in some parts of the country, notwithstanding that it involves practices that are contrary to the rulings of every federal and state court to address them.</p> <p>Because boilerplate objections are part of the &ldquo;culture,&rdquo; Judge Bennett declared that &ldquo;admonitions from the courts have not been enough to prevent such conduct and that, perhaps, only sanctions will stop this nonsense.&rdquo; Thus, in his view, Judge Bennett wrote that &ldquo;the imposition of increasingly severe sanctions will help solve the problems.&rdquo;</p> <p>Although counsel for both parties agreed that they had a cooperative and professional relationship throughout discovery, Judge Bennett nonetheless spent several pages of his order considering whether to sanction counsel for both parties who prepared the &ldquo;obstructionist&rdquo; boilerplate objections.&nbsp; Ultimately, Judge Bennett decided against issuing sanctions in this case.&nbsp; But he &ldquo;strongly encourage[d] counsel for both parties to improve discovery practices at their own firms and to educate their colleagues and law students on proper discovery responses.&rdquo;&nbsp;</p> <p>Prior to this order, Judge Bennett had issued a Supplemental Trial Management Order applicable in cases starting in 2017.&nbsp; In that new order, Judge Bennett specifically states that &ldquo;[a]ny party subjected to obstructionist conduct in discovery or depositions&hellip;shall promptly file a Report to the Court in writing, advising the Court of the specific nature of the alleged discovery abuse, regardless of whether or not the party intends to seek sanctions on its own motion.&rdquo; In short, parties now have an affirmative obligation to report &ldquo;obstructionist discovery conduct&rdquo; to Judge Bennett.</p> <p><b><u>Key Takeaways from Both Orders</u></b></p> <p>The message from both judges could not have been louder or clearer: boilerplate objections are unacceptable and may be sanctioned in future cases. &nbsp;But the disdain for boilerplate objections is not limited to just these two judges. Judges in Kansas have long railed against boilerplate objections, general objections, and conditional objections.&nbsp; <i>See</i> <i>High Point SARL v. Sprint Nextel Corp., </i>2011 U.S. Dist. LEXIS 103118 (D. Kan. Sept. 12, 2011) (rejecting &ldquo;unduly burdensome&rdquo; objections that were not supported by evidence detailing the nature of the burden); <i>Pro Fit Mgmt. v. Lady of Am. Franchise Corp., </i>2011 U.S. Dist. LEXIS 19152 (D. Kan. Feb. 25, 2011) (criticizing general and conditional objections as &ldquo;hypothetical and meaningless&rdquo;); <i>Duffy v. Lawrence Mem. Hosp., </i>2016 U.S. Dist. LEXIS 176848 (D. Kan. Dec. 21, 2016) (citing numerous Kansas rulings railing against conditional and boilerplate objections including cases dating back as far as 2005).</p> <p>And in the few weeks since Judge Peck penned his order, other federal judges from California, Florida and North Carolina have joined the chorus, albeit with less fervor than Judges Peck and Bennett.&nbsp; In <i>Sream, Inc. v. Hassan Hakim &amp; Sarwar, </i>2017 U.S. Dist. LEXIS 31491 (S.D. Fla. Mar. 6, 2017), the court quoted directly from Judge Peck&rsquo;s order that the language &ldquo;overly broad&rdquo; and &ldquo;unduly burdensome&rdquo; &ldquo;tells the Court nothing.&rdquo;&nbsp; In another case, <i>Am. Humanist Assn. v. Perry, </i>2017 U.S. Dist. LEXIS 38600 (E.D.N.C. Mar. 17, 2017), after noting that &ldquo;[s]uch boilerplate objections are subject to waiver,&rdquo; the court threatened sanctions up to default judgment if the defendant&rsquo;s supplemented discovery responses continue to be deficient. <i>See also Amatrone v. Champion, </i>2017 U.S. Dist. LEXIS 40800 (N.D. Cal. March 20, 2017) (holding that &ldquo;boilerplate responses are insufficient.&rdquo;).</p> <p>Judge Peck urged counsel to update their &ldquo;form&rdquo; files and suggested that parties should avoid &ldquo;general objections&rdquo; except in rare instances.&nbsp; Judge Bennett explicitly prohibits boilerplate objections in his Supplemental Trial Management Order.&nbsp; He also provides direct instructions regarding proper discovery responses.&nbsp; The amended Federal Rules require specific objections and detailed privilege logs.&nbsp; To avoid the wrath of federal judges, parties would be wise to avoid the types of boilerplate objections made by the parties in <i>Fischer</i> and <i>Liguria Foods, Inc.</i></p>https://www.bscr-law.com?t=39&anc=371&format=xml&directive=0&stylesheet=rss&records=10The Defective Product was Destroyed by the Plaintiff: What now?https://www.bscr-law.com/?t=40&an=47136&format=xml&p=5258&stylesheet=blog24 Nov 2015Product Liability Law BlogIn any product liability action, one of the first questions every attorney will ask is: &ldquo;Where is the product?&rdquo; The plaintiff has the burden of showing that the defect existed when the product left the defendant's control, and that the product reached the plaintiff without any alterations or modifications. But what happens if the plaintiff destroys the product? <br /> <br /> In a recent Eighth Circuit case, Lanny O&rsquo;Neal was killed in 2008 when a 1971 Remington Model 700 .243 caliber-bolt action rifle unexpectedly discharged. His wife, Carol O&rsquo;Neal, after two attorneys had declined to represent her, had the rifle destroyed because it reminded her of his death.<br /> <br /> Several months later, Carol saw a news documentary on a trigger defect in Model 700 rifles which prompted her to file suit in 2011. A South Dakota district court granted summary judgment to Remington on the grounds that O'Neal could not show whether the alleged defect existed at the time of manufacture or whether the defect resulted from a subsequent alteration or modification to the rifle. On appeal, the Eighth Circuit reversed, holding that O&rsquo;Neal presented sufficient circumstantial evidence to show the alleged defect was not the result of a subsequent alteration or modification. <br /> <br /> Remington used a trigger mechanism in its Model 700 rifles called the Walker trigger. Remington knew the Walker trigger could cause Model 700 rifles to fire a round when the safety lever is released from the safe position to the fire position, without the trigger being pulled. This defect resulted from the manner in which two components of the trigger mechanism &ndash; the sear and the connector &ndash; interacted with one another, coupled with the lack of a physical attachment between the connector and the trigger itself. Remington knew of the Walker trigger problem as early as 1979, but decided against recalling the Model 700 rifles. <br /> <br /> In addition to presenting evidence that the subject rifle was equipped with a Walker trigger mechanism at the time of manufacture, O&rsquo;Neal presented substantial evidence that the trigger mechanism was not modified or altered from the mid-1980s (the date Lanny&rsquo;s stepfather bought the gun) to the date of the hunting accident. However, there was a gap of over a decade of unaccounted time from 1971 to the date of purchase, which was at the heart of the dispute. <br /> <br /> Remington argued that the destruction of the rifle precluded O'Neal from establishing that the trigger mechanism was the original Remington trigger mechanism, rather than an after-market trigger made by another manufacturer. <br /> <br /> The Eighth Circuit (in a 2-1 <a href="http://media.ca8.uscourts.gov/opndir/15/10/142883P.pdf">decision</a>) disagreed noting that there was no evidence the subject rifle had a history of inadvertent discharges that might spur an owner to replace the trigger mechanism. The Court majority reasoned that the fact that &ldquo;the subject rifle was used many times without incident from the mid-1980s through November 2008, and then suddenly inadvertently discharged, is more consistent with the unpredictable manifestation of the inherent design defect in the Walker trigger, than it is with the rifle being equipped with a replacement trigger designed to eliminate the possibility of an inadvertent discharge.&rdquo;<br /> <br /> Further, the hunting accident was investigated by the state, local and federal authorities which included an inspection of the rifle and a description of additions to the rifle made by other manufacturers. An aftermarket trigger mechanism was not included. The court stated that the absence of such information supports the reasonable inference that the trigger mechanism in the subject rifle was the original Remington Walker trigger.<br /> <br /> Accordingly, the Eighth Circuit reversed the trial court&rsquo;s summary judgment ruling in favor of Remington, and remanded the case for trial, concluding that O'Neal presented sufficient circumstantial evidence to show the alleged defect was present at the time of manufacture and was not the result of a subsequent alteration or modification. <br /> <br /> The Eight Circuit&rsquo;s opinion should serve as a reminder that lack of the product does not signal an automatic win for the defense. If Plaintiff can provide circumstantial evidence to show the alleged defect was present at the time of manufacture and was not the result of a subsequent alteration or modification, plaintiff will be able to avoid summary judgment. <br />https://www.bscr-law.com?t=39&anc=371&format=xml&directive=0&stylesheet=rss&records=10