Category Archives: Evidence

Daubert Analysis in Recent Federal Circuit Court Cases.

29 Thursday Jun 2017

Posted by in Authentication, Daubert Motion, Evidence, Litigation, Product Liability

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Daubert In Product Liability Cases: Mid-2017 Update, by Max Kennerly, Litigation & Trial

http://bit.ly/2s7ZL96

An excellent analysis of Daubert in 4 product liability cases from the federal circuit courts. -CCE

Today we’re going to review the state of the art, as it were, of Daubert in product liability cases by examining the four most recent published Court of Appeals opinions. Those opinions are:

  • Adams v. Toyota Motor Corp., No. 15-2507, 2017 WL 2485204 (8th Cir. June 9, 2017)
  • In re Zoloft (Sertraline Hydrochloride) Prod. Liab. Litig., 16-2247, 2017 WL 2385279 (3d Cir. June 2, 2017)
  • Wendell v. GlaxoSmithKline LLC, No. 14-16321, 2017 WL 2381122 (9th Cir. June 2, 2017)
  • Nease v. Ford Motor Co., 848 F.3d 219 (4th Cir. 2017)

Plaintiffs lost Zoloft and Nease, and won Adams and Wendell. But it would be foolish to look at these cases simply as a scorecard: the real issue here for future cases is how the courts decided the cases.

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Do You Use the Cloud for Document Storage or Production? Read This First.

28 Tuesday Feb 2017

Posted by in Attorney Work Product, Attorney-Client Privilege, Clouds, Confidentiality, Discovery, Dropbox, Emails, Encryption, Evidence, Insurance Defense, Legal Ethics, Legal Technology, Litigation, Passwords, Privilege and Confidentiality, Requests for Production, Sanctions, Subpoena Duces Tecum

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Upload To File-Sharing Site Was Like Leaving Legal File On A Bench, Judge Says; Privilege Is Waived, by Debra Cassens Weiss, ABA Journal©

http://bit.ly/2mxwEcF

Many use the cloud for file storage and sharing when attachments are too big to send by email. If you use the cloud for storage, file-sharing or transfer, document management, project management, or anything similar, here is a cautionary tale.

The plaintiff insurance company sued the defendants, and sought a declaratory judgment on the defendants’ claim of loss by fire. The plaintiff’s investigator uploaded the entire claims file, including surveillance footage, to a drop-box cloud, Box, Inc. The link had no encryption or password. Access to the link alone allowed anyone to see the file.

He then sent the link by email to the plaintiff insurance company, who sent it to the insurance company’s attorneys, who inadvertently sent it the defendants’ counsel in response to a subpoena duces tecum.

The defendants’ counsel looked at it, but didn’t tell the plaintiff they had seen the privileged and confidential information. Inevitably, the defense sent the information back on a thumb drive to the plaintiff’s attorneys during discovery.

After vigorous arguments about confidentiality, work-product doctrine, attorney-client privilege, and disqualification of defense counsel, the facts and court’s reasoning make this an interesting read. -CCE

New Federal Rules in Evidence in 2017 Will Affect The Hearsay Exception and E-Discovery.

22 Sunday Jan 2017

Posted by in Authentication, Discovery, E-Discovery, Evidence, Rule 803 Exception, Rule 902

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‘Ancient’ Data (and Documents): Prepare for Federal Changes to a Long-standing Hearsay Exception, by Carey Busen and Gilbert S. Keteltas, BakerHostetler, Discovery Advocate Blog

http://bit.ly/2jeUNW2

If you hadn’t heard, there are changes to the Federal Rules of Evidence that will become effective in 2017. Among the changes are rules on hearsay exception for “ancient documents” and rules specifically addressing electronic evidence. Because technology is never static, e-discovery has looked forward rather than backward. These new rules will address e-discovery older than 20 years. -CCE

If wish to do more research into this area, I recommend:  Gregg Kettles, Ancient Documents and the Rule Against Multiple Hearsay, 39 Santa Clara L. Rev. 719 (1999). http://bit.ly/2jOIujM

Using the Wayback Machine To Authenticate Evidence.

24 Tuesday May 2016

Posted by in Evidence, Intellectual Property, Research, Rule 901, Wayback Machine

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Wayback Machine Builds Reputation with Judiciary, by CMLaw Library Blog (with hat tip to William P. Statsky)

http://cmlawlibraryblog.classcaster.net/2016/05/12/wayback-machine-builds-reputation-with-judiciary/

What is the Wayback Machine? It’s been around since 2001. It is a mega-archive of websites. If you are a serious researcher, it is worth your time to learn how to use it. It is more than just a trip down nostalgia lane. You can easily find blog posts, articles, and videos that will give you an in-depth explanation on the Wayback Machine’s creation and what it does.

I like this post because it is the first illustration I’ve seen in which someone used the Wayback Machine as persuasive evidence in court. Thanks, Bill! -CCE

An April 2016 decision from the District of Kansas has given judicial notice to information contained in screenshots from the Wayback Machine. The Internet Archive’s Wayback Machine preserves images of websites as they appeared at particular points in time. In the case at hand, Marten Transport, Ltd. v. PlattForm Advertising Inc., (D. Kan., Case No. 14-2464-JWL, 4/29/16), Marten sued PlattForm for infringement, alleging that PlattForm had continued to display Marten’s logo on PlattForm’s website after the two had stopped doing business together.

The court determined that testimony from an employee of the Internet Archive concerning the screenshots showing PlattForm’s website at the time in question was enough to meet the standards in Federal Rules of Evidence, Rule 901.

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In Litigation, First Things First.

10 Thursday Mar 2016

Posted by in Brief Writing, Discovery, Evidence, Legal Writing, Litigation, Motions

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Motions first, depositions second, by Kirby Griffis, Brief Right!

http://briefright.com/motions-first/

In my business, litigation, there is a typical order of events. A lawsuit is filed, then discovery is taken, then motions are filed and ruled upon, and then there is a trial. Litigators who haven’t thought carefully about their business may fall into the error of compartmentalizing these steps too much. Have you ever gone to write a crucial motion, only to discover that the testimony or documentary evidence that you need to put forward under the applicable law was never obtained, or came in the wrong way without being fixed?

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Clients – Don’t Wipe That Cell Phone!

06 Saturday Feb 2016

Posted by in Android Phones, Blackberry Phones, Cell Phones, Discovery, E-Discovery, Evidence, Forensic Evidence, iPhones, Legal Technology, Preservation, Sanctions, Spoilation

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Appeals Court Upholds Terminating Sanctions For Wipe of Cell Phone, by Doug Austin, eDiscovery Case Law

http://bit.ly/1K5mzxO

In Woodell v. Bernstein, et. al., No. 14-2836 (Cal. App., Dec. 30, 2015), the California Court of Appeals affirmed the judgment of the trial court, which imposed terminating sanctions against the plaintiff for spoliation of evidence and dismissed his lawsuit with prejudice after the plaintiff had wiped his cell phone, which was key to the case. . . .

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Questions About The New Federal Rules Amendments on Discovery? – 2nd of 5-Part Guide.

26 Thursday Nov 2015

Posted by in Admissibility, Concept Search Tools, Court Rules, Courts, Discovery, E-Discovery, Evidence, Federal District Court Rules, Preservation, Rule 16 Conference

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Day 2: Your First Five Questions (times four): A Practical Guide to the Amended Federal Rules of Civil Procedure – Early Case Assessment, by Karin Scholz Jenson, Gary Levin, Robert J. Tucker, James A. Sherer and Jonathan Forman, Discovery Advocate Blog

http://bit.ly/1jluREF

The current amended Federal Rules of Civil Procedure—and, in particular, those that address the practice of civil discovery—are the product of five years of development, debate, and, of course, dialogue. Now that the Rules are set to be implemented on December 1, 2015 – and they apply to pending cases where ‘just and practicable’ — the focus among attorneys and their clients has changed from what the Rules should say to how they should work. While debates remain as to how certain parts of the Rules will wear-and-tear once put to the test in discovery, there are clear indications within the text of the Rules (with some help from the Committee Notes to the Rules and the contributions of judges and other writers) as to how the Rules will apply. . . .

Today we review: Early Case Assessment.

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Seventh Circuit Rules On The Weight Of Scientific Evidence.

02 Monday Nov 2015

Posted by in 7th Circuit Court of Appeals, Evidence, Insurance Defense, Litigation, Personal Injury, Product Liability, Torts

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Seventh Circuit Ruling On Scientific Evidence Closes Some Doors But Opens Others, by Robert H. Riley, Neil Loyd, and Brian O’Connor Watson, Product Liability & Mass Torts Blog

http://tinyurl.com/nmjffed

Exposure to potentially harmful substances at some level is a fact of modern life. These substances are everywhere — in the air we breathe, in the food we eat, and in the water we drink — and many of these substances are naturally occurring. It is impossible to have zero exposure to all of them.

For both science and law, however, the issue is not whether someone has some detectable exposure. Rather, it is whether the dose was sufficient (in quantity and duration) to cause harm.

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Defendant Ordered by Court to Produce Gap-Period Emails on Backup Tapes.

04 Sunday Oct 2015

Posted by in Admissibility, Discovery, E-Discovery, Emails, Emails, Evidence, Federal Rules of Discovery, Forensic Evidence, Gap-Period Emails, Legal Technology, Motion to Compel, Relevance, Requests for Production

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Defendant Compelled to Restore and Produce Emails from Backup Tapes: eDiscovery Case Law, by Doug Austin, eDiscoveryDaily Blog

In United States ex rel Guardiola v. Renown Health, No. 3:12-cv-00295-LRH-VPC, (D. Nev. Aug. 25, 2015), Nevada Magistrate Judge Valerie P. Cooke concluded that emails contained on backup tapes held by the defendants was not reasonably inaccessible due to undue cost and, even if the emails were reasonably inaccessible due to undue burden or undue cost, ‘good cause supports their discoverability.’ . . .

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Oklahoma’s Discovery Code Changing to Add E-Discovery Master.

29 Tuesday Sep 2015

Posted by in Discovery, E-Discovery, E-Discovery Master, Evidence

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New Discovery Master Law Takes Effect on Nov. 1, 2015, by James C. Milton, Oklahoma Bar Journal – Sept. 26, 2015, Vol. 86, No. 25.-

(Originally published in the Oklahoma Bar Journal – Sept. 12, 2015 – Vol. 86, No. 24)

http://www.okbar.org/members/BarJournal/archive2015/SeptArchive15/OBJ8624Milton.aspx

Effective on Nov. 1, 2015, the Oklahoma Discovery Code will include a new statute that provides for discovery masters in civil litigation.1 The new statute will be codified as Section 3225.1 of the Discovery Code.

Section 3225.1 is based in large part on Rule 53 of the Federal Rules of Civil Procedure..2 Rule 53 allows for federal courts to appoint ‘judicial masters’ to address complex issues in exceptional cases. . . .

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Social Media – E-Discovery Waiting To Be Plucked.

19 Saturday Sep 2015

Posted by in E-Discovery, Evidence, Legal Ethics, Social Media

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Social Media E-Discovery: Its Time Is Here, by Dera J. Nevin, Canadian Lawyer (with hat tip to Allen Mihecoby, CLAS, RP®)

http://www.canadianlawyermag.com/5732/Social-media-e-discovery-its-time-is-here.html

Social media is an important source of discovery in an increasing range of cases and can often yield the most important evidence. Social media and its derivatives are prevalent with many people using social media as their dominant communications channel, preferring some in-app messaging tools to e-mail. Corporations, too, are using these media to target and communicate with their customers. Ignore these sources and you leave potentially game-changing evidence on the table. . . .

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Great Illustration and Explanation – What The Best Evidence Rule Is and What It is Not.

27 Thursday Aug 2015

Posted by in Admissibility, Best Evidence Rule, Evidence, Exhibits, Trial Tips and Techniques

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Understanding The Best Evidence Rule, by Judge Larry Primeaux, Better Chancery Blog

https://chancery12.wordpress.com/2011/01/12/understanding-the-best-evidence-rule/

I would nominate MRE 1002 for second-most misunderstood rule of evidence (the all-time front-runner, without peer, would be the hearsay rule). . . .

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Is It Okay To Wipe A Former Employee’s Computer?

04 Tuesday Aug 2015

Posted by in Discovery, E-Discovery, Evidence, Forensic Evidence, Law Office Management, Litigation Hold, Office Procedures, Preservation, Technology

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Court Denies Request for Sanctions for Routine Deletion of Files of Departed Employees: eDiscovery Case Law, by Doug Austin, eDiscoverydaily

http://tinyurl.com/p2jfsqe

For many employers, it is normal procedure to “wipe” the computer of recently former employees after removing anything not already stored on the employer’s network. Is this a bad practice? -CCE

In Charvat et al. v. Valente et al., 12-5746 (N.D. Ill. July 1, 2015), Illinois Magistrate Judge Mary M. Rowland denied the plaintiff’s request for spoliation sanctions for the defendant’s admitted destruction of computer files belonging to two departed employees, finding that the plaintiff did not provide any evidence that the defendant acted in bad faith. . . .

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Are iPad Text Messages Protected Under Your State’s Wiretapping Laws?

30 Tuesday Jun 2015

Posted by in Admissibility, Appellate Law, Case of First Impression, Evidence, Government, Intellectual Property, iPad, Legal Technology

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iPad Texts Not Private Under Wiretap Act | The Legal Intelligencer*, The Democratic Underground.com

(The Legal Intelligencer requires subscription but is free for 5/mo articles.)

http://www.democraticunderground.com/10026893652

iPads are popular in the legal and business world. It would be a good idea to check your state’s wiretapping law and determine whether your client’s and your own text iPad messages have a reasonable expectation to privacy. -CCE

An iPad does not fall within the telephone exemption under the Pennsylvania Wiretapping and Electronic Surveillance Control Act, and users of the device do not have a reasonable expectation of privacy when it comes to sending text messages, the state Superior Court has ruled in a case of first impression. . . .

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Spoiled Evidence On Both Sides – What Else Could Go Wrong?

24 Wednesday Jun 2015

Posted by in Depositions, Discovery, E-Discovery, Evidence, Intellectual Property, Preservation, Spoilation

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Court Finds Wife Liable for Agent-Husband’s Intentional Deletions, Recommends Default Judgment, by K&L Gates in CASE SUMMARIES

http://tinyurl.com/o9p3kmn

Malibu Media, LLC v. Tashiro, No. 1:13-cv-00205-WTL-MJD, 2015 WL 2371597 (S.D. Ind. May 18, 2015)

In this copyright infringement case, the court found that Defendants ‘spoiled evidence, committed perjury, and failed to discharge their duties to conduct discovery reasonably and in good faith’ and recommended default judgment. Notably, in addition to more familiar issues surrounding the topic of spoliation, the court’s opinion addressed the question of whether spoliation occurs when information is still recoverable (yes) and the propriety of imputing an agent’s bad acts in discovery where, as in this case, Defendant Wife ‘left it to her agent—her husband—to respond to Plaintiff’s document requests.’ . . .

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9th Circuit Rules Google Earth Coordinates Are Not Hearsay.

24 Wednesday Jun 2015

Posted by in Admissibility, Authentication, Evidence, Hearsay, Legal Technology

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How to Get Google Earth Images Admitted for Litigation, by Morgan C. Smith, Cogent Legal 

http://tinyurl.com/ngxpzxc

Many attorneys rely on Google Earth as the primary source for finding visual information for specific locations, all over the world, involved in litigation (see my prior post discussing how to use Google Earth for images and obtaining archival images). However, when finding great images, or determining precise locations based on GPS coordinates, the next question is always:

‘How do I get this into evidence?’

This is not an easy question to answer, yet a recent decision by the Ninth Circuit Court of Appeals helps resolve one issue of admissibility for such imagery: Google Earth coordinates are not hearsay. . . .

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Objection! Argumentative!

09 Saturday May 2015

Posted by in Cross-Examination, Direct Examination, Evidence, Making Objections, Objections, Trial Tips and Techniques

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“Objection! Argumentative” Is That Really A Valid Objection During Cross Examination?, by Paul N. Luvera, Plaintiff Trial Lawyer Tips Blog

http://plaintifftriallawyertips.com/objection-argumentative-is-that-really-a-valid-objection-during-cross-examintion

An outstanding Seattle plaintiff’s trial lawyer & I have been discussing the common objection made during cross-examination that the question is ‘argumentative’ because  of a trial we  have a common interest in where the  judge  sustains cross-examination questions that directly challenge the witnesses testimony as untruthful where the objection of ‘argumentative’ is made. My position is that cross-examination is confrontational and a testing ground for witness credibility by challenging the witness. I believe that judges who sustain an objection to the confrontation as ‘argumentative’ do not fully understand the function of cross-examination and the rules of evidence. I decided to share my viewpoint for your consideration. . . .

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The Rule of Witness Sequestration.

25 Saturday Apr 2015

Posted by in Evidence, Trial Tips and Techniques, Witnesses

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No Contact: Superior Court of Pennsylvania Reacts to Violation of Sequestration Order by…Lifting the Order, by Colin Miller, EvidenceProf Blog

http://tinyurl.com/puhw9k9

If you’ve ever been to trial and in charge of wrangling witnesses, you know about the rule of sequestration. Usually one or both parties invoke the rule at the beginning of trial, and anyone who may testify as a witness must leave the courtroom. The point is to prevent any witness’ testimony to be influenced by that of another’s.

This post discusses the Rule and the Court’s ruling when the Rule is not followed.  Like Mr. Miller, I don’t understand the Court’s ruling on this one. -CCE

Similar to its federal counterpart, Pennsylvania Rule of Evidence 615 reads as follows:

At a party’s request the court may order witnesses sequestered so that they cannot learn of other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize sequestering:

(a)  a party who is a natural person;

(b)  an officer or employee of a party that is not a natural person (including the Commonwealth) after being designated as the party’s representative by its attorney;

(c)  a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(d)  a person authorized by statute or rule to be present.

So, assume that a judge orders a witness sequestered and tells him not to discuss the case with prior witnesses. Further, assume that the witness violates this sequestration order by talking to a prior witness. You’d expect there to be severe consequences for that witness, right? . . .

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“Read Receipt” Email Message Is Not Hearsay.

17 Friday Apr 2015

Posted by in Admissibility, Authentication, Evidence, Federal Rules of Evidence, Hearsay, Litigation, Summary judgment

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Court Rules that Automatically Generated Read Receipt is Not Hearsay: eDiscovery Case Law, by Doug Austin, eDiscoverydaily

http://tinyurl.com/ozbratn

In Fox v. Leland Volunteer Fire/Rescue Department Inc., 7:12-CV-354-FL. (E.D.N.C. Mar. 10, 2015), North Carolina District Judge Louise W. Flanagan ruled that a Read Receipt automatically sent from the defendant’s email address to the plaintiff (when the defendant opened an email sent by the plaintiff) was not hearsay.

Case Background

In this wrongful termination case, the court was considering the defendants’ motion for summary judgment, as well as the defendants’ motion to strike certain exhibits attached to plaintiff’s brief in opposition to summary judgment for failure to comply with Federal Rule of Civil Procedure 56(c) & (e). One of the items that the defendants sought to exclude was a read receipt sent from defendant Grimes email address to plaintiff, triggered when an email plaintiff sent defendant Grimes was opened, arguing that the Read Receipt was ‘unauthenticated hearsay’.

Judge’s Opinion

Judge Flanagan made a swift ruling on this issue when she stated ‘Defendants’ argument fails. The Read Receipt is not hearsay.’ . . .

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Defendant in Motor Vehicle Accident Files Motion In Limine to Exclude BAC Evidence – Nice Try.

18 Wednesday Mar 2015

Posted by in Admissibility, Evidence, Expert Witness Report, Expert Witnesses, Forensic Evidence, Litigation, Motion in Limine, Motions in Limine, Motor Vehicle

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Admissibility of BAC Evidence Requires Proof of Intoxication, by Daniel E. Cummins, TortTalk Blog

http://www.torttalk.com/2015/03/admissibility-of-bac-evidence-requires.html

(Please contact Daniel Cummins at dancummins@comcast.net if you wish to review a copy of this opinion.)

In his recent February 9, 2015 Opinion in the case of Ritter v. Van Campen Motors, Inc., No. 12-00,379 (C.P. Lycoming Co. Feb. 9, 2015 Anderson, J.), Judge Dudley M. Anderson addressed Motions in Limine pertaining to DUI evidence filed by a Defendant in a motor vehicle accident case.

According to the Opinion, this matter involved a motor vehicle accident during which each party claimed that the other driver crossed the centerline resulting in the fatal accident. Accident reconstruction experts offered by each party came to opposite conclusions.

The Defendant filed a Motion In Limine to preclude evidence that the Defendant driver had a BAC of .257 at the time of the accident as confirmed by an autopsy report, testimony that the Defendant had been drinking prior to driving that day, and evidence that there was beer in the Defendant’s vehicle at the time of the accident. The Defendant contended that the BAC evidence was inadmissible absent proof of intoxication. . . .

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A Legal Analysis of Shaken Baby Syndrome.

04 Wednesday Mar 2015

Posted by in Case Law, Evidence, Expert Witnesses, Health Law, Law Journals, Law Reviews, References, Research, Secondary Resources

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Shaken Baby Syndrome: A Differential Diagnosis of Justice, by Ken Strutin, LLRX.com

http://www.llrx.com/features/shakenbabysyndrome.htm

When King Solomon resolved history’s best-known custody dispute, he implicitly divined that the death of the absent child was due to accidental infanticide, not intentional homicide.1 And his method was an early testament to truth finding. Today, the investigation of infantile death is too often accompanied by hurried accusations and false confessions.2 And the search for truth is left to lawyers and experts who have become as adversarial as the testificants in Solomon’s court. The concept of Shaken Baby Syndrome (SBS)3 has become a battleground where medical evidence and legal presumptions clash, testing the limits of judicial wisdom.4

The investigation and prosecution of SBS cases5 has revealed an historical and ongoing tension among medical experts6 and legal practitioners and scholars.7 From the Supreme Court on down, judges in these cases have had to struggle with complex emotions, societal impulses, conflicting witness and expert testimonies, as well as ineffectiveness of defense counsel, need for appointed experts, admissibility under Frye-Daubert, and assessment of newly discovered evidence.8 Thus, legal investigation into the reasons behind infant deaths has turned into a medical “who done it” with the suspects ranging from accident and natural causes to the criminal conduct of parents and caretakers.9

This is a collection of recent and select court decisions, law reviews and news articles that explore the ongoing scientific and legal arguments about the definition and exclusivity of shaken baby syndrome evidence. . . .

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Seat Belt Use Evidence Now Admissible In Texas.

19 Thursday Feb 2015

Posted by in Admissibility, Authentication, Damages, Discovery, Evidence, Motor Vehicle, Negligence, Personal Injury, Product Liability, Relevance, Torts, Wrongful Death

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TX: Evidence of Seat Belt Non-Use is Admissible to Apportion Responsibility, by Christopher J. Robinette, Torts Prof Blog (with hat tip to Jill Lens (Baylor)!)

http://tinyurl.com/kmbeph9

For years, evidence of seat belt use was prohibited at trial. The Texas Supreme Court changed that rule of law with this case. This ruling will have a major impact on this area of the law. -CCE

The Texas Supreme Court case, which was announced on Friday, is Nabors Wells Services, Ltd. v. Romero. The case (pdf) is here:  Download TX Sup Ct = Seat Belt Admiss  From the opinion:

We hold relevant evidence of use or nonuse of seat belts, and relevant evidence of a plaintiff’s pre-occurrence, injury-causing conduct generally, is admissible for the purpose of apportioning responsibility under our proportionate-responsibility statute, provided that the plaintiff’s conduct caused or was a cause of his damages.

At Depositions, Ask the Witness To Show, Not Tell.

16 Monday Feb 2015

Posted by in Depositions, Discovery, Evidence, Transcripts, Trial Tips and Techniques, Witness Preparation, Witnesses

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Impeach Witnesses by Creating an Effective Record at Depositions, by Elliott Wilcox, Trial Theater©

http://trialtheater.com/trial-skills/cross-examination/impeach-witnesses-by-creating-an-effective-record-at-depositions/

The depositions were taking longer than expected, and they were some of the most boring depos I’ve ever attended. As we approached 3 o’clock, I could barely keep my eyes open. Luckily, closing my eyes for a brief moment helped me see what the deposition transcript would look like, and pointed out the difference between talking to the witness and talking to the record. Take a look at two sample questions that were asked:

“This blood here, is that from this general area here, or is that from another area?”

“Is this photograph here a photograph of this area here?”

Huh? Do you have any idea what they’re talking about? Do you know where the blood is? Neither will they when the attorney if she tries to impeach the witness using this deposition during trial. . . .

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Failure-To-Warn Case – Can Your Expert Beat The Warning Label?

15 Sunday Feb 2015

Posted by in Daubert Motion, Evidence, Litigation, Product Liability

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WARNING! If You Assume Your Case Will Survive Because You Have a “Creative” Warnings Expert, You Do So At Your Own Risk, by Ernie Goodwin, Product Liability Advocate

http://tinyurl.com/plkxj4t

Those of us in the business of defending products look at the world in a slightly different way. When I come across a warning label, I actually study it because in a failure to warn case, the language of the warning, the color of the label and its location on the product are relevant to the effectiveness of the warning. In my experience defending manufacturers of various types of products, I have seen plaintiffs make speculative failure to warn claims. Less-experienced plaintiffs’ attorneys assume that a creative theory developed by a well-credentialed “warnings expert” will be enough to leverage a settlement in an otherwise weak case on liability. That is a dangerous assumption to make.

The case law in all jurisdictions is clear when it comes to the burden of proof for a warnings claim; there has to be a direct link between the failure of the manufacturer to warn about the hazard and the cause of the incident. Moreover, the plaintiff’s expert must consider, among many other things, all of the available accident data and not rely only on select facts from the record to support his findings. A manufacturer who is facing a speculative warnings claim has a few options for dealing with these types of claims. The most effective and frequently used tool is the Daubert motion to exclude the expert from testifying at trial. . . .

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Duty to Defend In Insurance Case.

05 Thursday Feb 2015

Posted by in Duty to Defend, Insurance Law, Litigation, Motion in Limine, Summary judgment

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Duty to Defend Not Effected by Denial of Motion for Summary Judgment, by Barry Zalma, Zalma on Insurance

http://zalma.com/blog/duty-to-defend-not-effected-by-denial-of-motion-for-summary-judgment/

Defense Can’t Be Avoided by Use Of Limine Motions

The duty to defend owed by an insurer is very broad and requires an insurer to defend even if there is only a potential for coverage on the facts of the case and the policy wording. Usually, an order denying a motion for summary judgment seeking an order that there is no duty to defend will usually be sufficient to reveal the potential for coverage and a requirement for defense – at least under a reservation of rights – to those insured. In McMillin Companies, LLC v. American Safety Indemnity Company, — Cal.Rptr.3d —-, 2015 WL 270034 (Cal.App. 4 Dist., 1/22/15) the right to claim no duty to defend will still exist even after a motion for summary judgment is denied if the motion order is not dispositive of the claims made by the motion for summary judgment. It also criticized the use of a motion in limine (to limit testimony allowed at trial) when it had the effect of a motion for summary judgment without the protections of a motion for summary judgment. . . .

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