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Court Orders “One-Star” Yelp Review of Attorney Removed but Non-Party Yelp Refuses

Posted in California Courts, Litigation Trends, Professional Liability

How one small San Francisco case may cause significant change for the Internet and its users

2016_07_27-yelp-law-suit_homepage-3-22527971222Ever rely on a negative review on Yelp? Ever write a negative review on Yelp?  Well, one small dispute in San Francisco has set precedent in place that such a review can be found defamatory and ordered removed by not only the reviewer but Yelp itself – even when Yelp was not a party to the action. The decision, which was recently upheld up by the California Court of Appeal (Hassell v. Bird (2016) 247 Cal.App.4th 1336), is currently being reviewed by the California Supreme Court. An opinion is expected next year; however, the decision is a departure from the common understanding that user generated content is not only unequivocally protected by the First Amendment but that the online publisher is immune from any liability for such content under Section 230 of the Communications Decency Act.

This decision is intriguing on its face because apparently a business has recourse and potential legal support to seek certain comments be removed from online sites like Yelp (or Google, or Facebook, or Trip Advisor etc.) but what is also of import to the likely reader of this blog are the underlying facts, which involved review of an attorney’s handling of a personal injury case. Yes, you can post a review of your lawyer on Yelp.

San Francisco attorney Dawn Hassell’s firm represented Ava Bird for 25 days in a simple personal injury case in 2012. Hassell withdrew as counsel because her firm had difficulty communicating with Bird and Bird expressed dissatisfaction with Hassell’s firm. Hassell produced evidence of dozens of direct communications with Bird, at least one in-person meeting, and efforts made to resolve Bird’s claim with the insurance company involved. At the time Hassell withdrew, Bird had 21 months to file her claim before the statute of limitations expired. A few months later, on January 28, 2013, Bird posted a “one-star” (the lowest rating) review on Yelp.com about her experience with Hassell. Thereafter, Hassell sent Bird an e-mail (after telephone calls were apparently not returned) requesting she remove “the factual inaccuracies and defamatory remarks” from Bird’s review to which Bird refused.

Hassell then filed suit in February 2013 allegedly after seeking Yelp’s assistance and after she was advised by counsel for Yelp that the only recourse was legal action against the actual reviewer, Bird. Of course that recollection is disputed by Yelp. After filing suit, Bird posted yet another review (to which Hassell responded to on Yelp). It is also alleged by Hassell that Bird then posted at least one other review under another pseudonym.

Hassell prevailed because Bird never showed up in any of the proceedings and thus, a default was entered against her. At the default prove-up hearing Hassell was sworn and testified. Bird again did not appear. The Court found the reviews defamatory and awarded approximately $555,000 in damages and costs as well as an injunction ordering Bird to remove her posts about Hassell and her firm from Yelp. Now here is where the twist comes in: Hassell requested –  in light of Bird’s history of “flaunting” the California court system  – and the Court also ordered non-party Yelp to remove all Bird’s reviews including those Bird was thought to have posted under another pseudonym. Yelp was served with the judgment but determined that the judgment was “rife with deficiencies” and saw “no reason at this time to remove the reviews at issue.” Yelp then sought to set aside and vacate the judgment, which the Court denied finding that Yelp highlighted the defamatory reviews; the motion was not limited to Yelp’s own interests; and Yelp refused to acknowledge by a judicial finding that Bird’s reviews were defamatory and thus in violation of its own terms of service and therefore, “Yelp is aiding and abetting the ongoing violation of the injunction.” Yelp appealed.

There are a three central issues at play here: first, due process considerations as Yelp was a non-party to this action yet was ordered to remove posts from its website; second, immunity for online providers as Yelp claims it is legally immune from liability from what its users post on its sites under Section 230 of the Communications Decency Act; and third, First Amendment rights as Yelp claims Bird’s speech is being suppressed when Hassell failed to prove it was defamatory (because the finding was not made by a jury).

The appeals court affirmed the trial court’s order denying Yelp’s motion to vacate the judgment. In sum, the Court of Appeal found that: Yelp was not aggrieved by the judgment; Yelp had no constitutional right to notice and a hearing on the trial court’s order (to remove the reviews); and the Communications Decency Act did not bar the trial court’s order.

As to the First Amendment claims, the Court of Appeal found those statements that were found defamatory are not afforded the protection of the First Amendment but to the extent that the order included subsequent posts that Bird or anyone else may post, the order is a prior restraint on speech. The matter was remanded to the trial court to modify its order accordingly on the issue. Yelp raised the argument that the speech found defamatory was not a finding by a jury but rather, by the judge so it was not properly decided to which the Court found no legal support for that argument.

This decision has caught the eye of the ACLU and certain non-profit think tanks who are champions for free speech and the internet economy in addition to a significant number of members of the Internet community (Facebook, Twitter). This decision is a big threat to Section 230 as it not only opens up liability to online publishers but threatens to limit speech. Not to mention this could place the onus on these publishers to edit user content to “one side of the debate.” Hearing both sides of a debate is a tenet both appreciated and disliked about online user content but nevertheless respected under the theory that all opinions, negative or positive, should be heard. So basically an action won essentially by default that resulted in a judgment against a non-party online publisher may turn online speech for everyone – user and publisher – on its head. For many of us that use Yelp regularly, there is in inherent value in both positive and negative reviews but the latter reviews may soon be silenced for fear of liability.

The reviews remain on Yelp to this day so if the opinion is not overturned, Yelp likely faces contempt proceedings and Hassell and her firm potentially remain harmed by the defamatory speech albeit Hassell does have a “five star” rating on Yelp. Regardless, this little dispute may change the meaningfulness of such reviews. Stay tuned.

Daimler Ruling’s Crucial Role in Recent Delaware Court Decision

Posted in Asbestos Litigation, Delaware Courts, Litigation Trends

Jury_Box_Purchased_8-13-14_iStock_000010826297SmallSince the United States Supreme Court’s decision in Daimler AG v. Bauman in 2014, general jurisdiction over a corporate defendant has become a hot topic. See 134 S. Ct. 746 (2014). In most jurisdictions, it is no longer sufficient for a plaintiff to establish a corporate defendant was registered to do business in the jurisdiction at issue or that the corporate defendant had sales and/or derived revenue in the jurisdiction at issue. Rather, there is a heightened inquiry and heavier burden placed on a plaintiff.

The Daimler Court held that a corporate defendant is deemed “at home” for purposes of establishing general jurisdiction over it in the forum where it is incorporated and in the forum where it maintains its principal place of business. Outside of those two circumstances, a corporate defendant will be considered at home only in exceptional cases.

One such exceptional case, as noted by the Daimler Court, can be found in the Perkins v. Benguet Consol. Mining Co. case wherein a corporate defendant moved its operations to Ohio out of Japanese occupied Philippines during World War II. See 342 U.S. 437 (1952). In Perkins, the president of the corporate defendant company kept an office, maintained company files, and oversaw the company’s activities in Ohio sufficient to render the defendant essentially at home in Ohio.

Many courts have interpreted the Court’s opinion in Daimler to place a heavy burden on plaintiffs to present such an exceptional case. With such a heavy burden placed on plaintiffs, the question many defendants are asking is: what amount of discovery are plaintiffs entitled to take in order to establish general jurisdiction over a corporate defendant?

The Delaware Superior Court recently faced this very question. In April 2016, the Delaware Supreme Court issued a decision in Genuine Parts Co. v. Cepec limiting the circumstances in which a defendant is deemed to be subject to general jurisdiction in the State of Delaware pursuant to Daimler. 137 A.3d 123 (Del. 2016). Shortly thereafter, Defendant Union Carbide Corporation (“UCC”) filed motions to dismiss for lack of personal jurisdiction pursuant to Daimler and Cepec in 211 cases pending in New Castle County, Delaware. The plaintiff in one of those cases – Charles Kimble – responded by serving written discovery requests and seeking the deposition of UCC’s corporate representative. In addition, plaintiffs in six additional cases[1] (out of the 211 with pending motions to dismiss) sought the deposition of The Dow Chemical Company (“Dow”) alleging Dow, as a Delaware corporation and parent to UCC, held some information relevant to whether the Delaware Superior Court could exercise general jurisdiction over UCC.

UCC responded to written interrogatories and document requests providing its basic corporate information and publicly available documents detailing its limited contacts with Delaware and its relationship with Dow. However, UCC and Dow both filed separate motions to quash the depositions of their corporate representatives (“Motions”). In their Motions, UCC and Dow argued Plaintiffs failed to provide “some indication” of a plausible basis for their assertion that Delaware Superior Court could exercise general personal jurisdiction over UCC and Dow pursuant to Daimler.

Plaintiffs opposed UCC’s and Dow’s Motions and asserted a cross motion seeking to compel UCC to provide full and complete responses to interrogatories and document requests. The basis for Plaintiffs’ opposition was that UCC’s relationship with Delaware presented an exceptional case in that it is registered to do business in Delaware and substantially all of its revenue is derived through sales to its parent company, Dow, which is also a Delaware Corporation. Plaintiffs ignored the fact that UCC is neither incorporated in nor has its principal place of business in Delaware. Instead, it focused solely on the relationship UCC maintains with Dow to attempt to establish personal jurisdiction.

On October 1, 2016, the Special Master in Delaware Superior Court issued an opinion quashing the depositions of UCC’s and Dow’s corporate representatives and denying Plaintiffs’ motion to compel. The Special Master relied on Delaware precedent requiring a plaintiff to establish an articulable, plausible theory by which the Delaware courts could exercise jurisdiction over UCC and determined Plaintiffs had put forth no such theory to entitle them to the discovery they sought.

In determining no additional discovery was warranted, the Special Master focused on the lack of exceptional circumstances present. It was undisputed that UCC’s state of incorporation and principal place of business are outside of Delaware, UCC has no office or manufacturing facility in Delaware, and it does not own, operate or lease any real property in Delaware. The Special Master observed that Plaintiffs underestimated the rigorous test set forth in Daimler as Plaintiffs asserted only that UCC conducts business in Delaware through transactions with its parent company and Delaware corporation, Dow. Notably, the Special Master re-iterated the fact that Daimler essentially changed the landscape of the jurisdictional analysis by requiring more evidence than that necessary to simply establish a defendant conducted business in the forum state.

The Special Master’s decision will hopefully help to pave the path in asbestos litigation. Despite a clear test to determine when a court may exercise general jurisdiction over a corporate defendant, plaintiffs continue to serve overbroad jurisdictional discovery seeking much of the information they already possess in an effort to seemingly conduct a fishing expedition into areas irrelevant to the personal jurisdiction analysis. The Daimler Court itself stated “it is hard to see why much in the way of discovery would be needed to determine where a corporation is at home.” 134 S. Ct. at 762 n. 20. Not only are plaintiffs’ inquiries often irrelevant, but defendants are forced to expend significant costs engaging in such discovery in jurisdictions in which they do not legally belong.

[1]  Plaintiffs James Bailey, Francis Classon, James Davis, Susan Domino, Frank Dudley, and Kathleen Gloyne filed one consolidated request to depose Dow’s corporate representative on issues relating to whether Delaware courts could exercise personal jurisdiction over UCC.

Don’t Watch Your Personal Jurisdiction Defense Sail Away

Posted in Employment Litigation, Litigation Trends, Rhode Island Courts

Inland_cat_sailboatThe rules of civil procedure are thrust, like harpoons, upon young lawyers during their first year of law school, and for good reason.  Failing to abide by any number of a jurisdiction’s various rules sections, subsections, and clauses can result in instant death to your client’s cause of action or defense.  For example, we know that under Rule 12(b) of the Federal Rules of Civil Procedure, motions asserting the defense of personal jurisdiction must be made before filing a responsive pleading, and can be deemed waived if not raised in such a motion or the responsive pleading itself.

Though there are various exceptions to the time-to-plead rules, the importance of getting a personal jurisdiction challenge front and center before the court early on in the litigation process applies to most jurisdictions, and a failure to do so can undermine the defense altogether.  A defendant learned this lesson the hard way in a recent case before the Rhode Island State Supreme Court.

In Pullar v. Cappelli, No. 2015-303 (R.I. 2016), the plaintiff (and former Rhode Island resident) met the defendant (a New York resident) in New York to negotiate a contract for employment, in which the plaintiff was to serve as captain of the defendant’s sailboat for a term of three years, with an annual salary and promise of bonus amounting to one year’s salary at the conclusion of the contract.  One month before the contract was set to expire, the defendant terminated the plaintiff’s employment without cause, denying the skipper his bonus.  The plaintiff subsequently filed suit for breach of contract to recover the money owed him.

In his initial answer, the defendant asserted that the subject venue, Rhode Island, did not have personal jurisdiction over him.  Nevertheless, the case proceeded for the next three years, through virtually all stages of litigation.  The defendant served written discovery, took the plaintiff’s deposition, filed discovery motions with the court, participated in court-annexed arbitration, rejected the arbitration award, and requested a trial assignment.  After the case was assigned for trial, and more than one year after the conclusion of arbitration, the defendant moved for summary judgment, asserting a lack of in personam jurisdiction.

On appeal after the trial court granted the defendant’s motion, the Rhode Island Supreme Court did not waste any breathe analyzing whether the defendant had minimum contacts with the state to satisfy the jurisdictional requirements of the long arm statute.  Recognizing that the defendant properly preserved the jurisdictional defense by raising it in his answer, the Court rejected the notion “that preservation of the defense is inviolable simply because it was raised in the answer.”  Relying on the analogous Rule 12 of the Federal Rules of Civil Procedure and interpretive case law, the Court concluded that simply asserting a jurisdictional defect in an answer does not preserve the right to raise the defense indefinitely.  Adopting the forfeiture doctrine developed by the federal court, the Supreme Court held that the defendant’s conduct prior to asserting his jurisdictional defense gave the plaintiff the reasonable expectation that he would defend the case on the merits.  By conducting three and one half years of active litigation, submitting to the jurisdiction of the arbitration panel, and requesting  a trial date, the defendant was found to have forfeited his personal jurisdiction defense.  The case was remanded for further proceedings.

The lesson of Pullar is not hard to extract.  A properly preserved jurisdictional defense, like a pickled herring in the belly of a galleon, will still spoil if is not timely utilized.

The Trouble with Dying Declaration Affidavits in Asbestos Litigation: a Case Study

Posted in Asbestos Litigation, Products Liability

Lady JusticeIn asbestos litigation, often times a plaintiff’s sole evidence of product identification takes the form of an affidavit created shortly before the claimant passes away.  Typically called a “dying-declaration” affidavit, the document preserves the plaintiff’s written testimony for trial, thereby preserving his cause of action against the individuals and entities he believes were responsible for causing his illness.

Such affidavits are problematic for defendants for a variety of reasons, principally because the affidavits are frequently created in the short window between a litigant’s diagnosis and his death, which may pre-date the filing of suit.  Under these circumstances, there is patent prejudice inflicted on defendants whose products are identified in the affidavits.  The defendants are denied the right to place the written identification testimony through the crucible of cross-examination, a fundamental right that is generally afforded to defendants in all litigation.

The prejudice inflicted on the decedent-plaintiff, however, is equally patent, if the affidavits are excluded from evidence.  The plaintiff may be the only source of product identification evidence available to his estate, and to deny the admission of a dying declaration affidavit may deny the plaintiff a viable cause of action.

Courts facing the dilemma posed by a dying declaration affidavit recognize the competing rights and interests of the litigants, and often look to the circumstances under which the document was created.  A recent decision in the Rhode Island Superior Court, Pisano v. Alfa Laval, Inc., C.A. No. PC-13-5868 (November 2, 2016) (Gibney, J.), weighed the competing interests with the language of the operative rule of evidence, and came down on the side of the plaintiff, admitting three affidavits executed less than two months prior to the plaintiff’s death, and before he could be deposed, for the purposes of defeating a defendant’s summary judgment motion.

In Pisano, a defendant moved for summary judgment asserting, among other things, insufficient product identification, where the evidence was limited to the plaintiff’s three affidavits.  The plaintiff had been diagnosed with mesothelioma on September 27, 2013, and executed the three affidavits in two separate bunches, one on October 25, 2013, and the other two on November 1, 2013.  The plaintiff passed away on December 16, 2013, one month after suit had been filed, and before he could be deposed by the defendants.  In the first October 25, 2013 affidavit, the plaintiff stated that he cut and installed asbestos-containing flooring tiles with his neighbor in the basement of his home in 1964; he described the tiles as being 10” x 10” and speckled black and white.  In the second affidavit, executed November 1, 2013, the plaintiff reiterated the events in the first affidavit, and further stated that the tiles were in fact 9” x 9”, black and white in color, and of the type he had circled in defendant’s catalog, which was attached as an exhibit to the affidavit.  In the third affidavit, dated November 1, 2013, the plaintiff stated that he installed ceiling tiles in his home sold by the defendant, and again attached a section of the defendant’s catalog in which he circled the alleged product.  Both the floor and ceiling tiles purportedly contained asbestos, to which the plaintiff was exposed.

The defendant challenged the admissibility of the affidavits for the purposes of product identification, arguing, in part, that the affidavits did not satisfy the “dying declaration” exception to the rule against hearsay because they were executed more than a month before the plaintiff  passed away and therefore were not made under the belief of impending death.  The trial court, Gibney, J., disagreed.  Recognizing that in order to be relied on at the summary judgment stage, affidavits must contain information that would be deemed admissible at trial, the court turned to Rhode Island Rules of Evidence 804(b) [1] to analyze the affidavits.

Under Rule 804(b), an unavailable declarant’s statements are admissible if made under belief of impending death, and relate to the declarant’s perceived cause or circumstances of his death.  The declarant’s state of mind can be proven by direct or circumstantial evidence, including through statements made to the declarant about his medical condition.  The dying declaration exception to hearsay is justified by the belief that the declarant’s impending death likely removes any motivation to make false claims.  In analyzing the Pisano affidavits, the court noted that, under existing case law, no time limit applies to terminal illness cases when defining the phrase “impending death” under 804.  In fact, the court referred to a previous decision in which it considered the fact that statements made by a declarant after being told that his condition was incurable and inoperable constituted a dying declaration for purposes of the rule.   The Pisano plaintiff represented, in his second affidavit, that he provided his statements “with the understanding that [he] may not be well enough to survive through the time of a deposition or trial.”  The court was therefore satisfied that the plaintiff sufficiently established his belief of impending death through his express statements, and deemed the affidavits admissible for product identification purposes under Rule 804.

Pisano follows the universal policy courts favor throughout the nation of resolving issues, evidentiary or otherwise, in a manner that permits the plaintiff a decision on the merits of his case.  Defendants must be vigilant in exploring not only the content of dying declaration affidavits, but the circumstances of their creation in order to posture for their exclusion from evidence both at the summary judgment stage and at trial.

[1] Rule 804 of the Rhode Island Rules of Evidence is functionally identical to Rule 804 of the Federal Rules of Evidence; both address the dying declaration exception to the rule against hearsay, among others.

The Case of the Missing Product: What Is a Defendant To Do?

Posted in Complex Torts, Louisiana Courts, Products Liability

Artboard 1You get served with a citation in a new products suit. The facts do not look good. The airbag system didn’t deploy. Maybe a tire exploded. Perhaps the steering assembly failed. A call is made to the plaintiff’s attorney – you want an expert to use an onboard diagnostic tool to test for what went wrong. Expecting to reach an amenable date for an inspection, you get a response that you were not quite expecting – the vehicle (or tire or steering assembly) has been salvaged and is no longer available for inspection. What happens next, and the legal theories involved, undoubtedly vary from state to state. Here we take a brief look at Louisiana law on the “case of the missing product.”

Adverse Presumption

In Williams v. General Motors Corp., 639 So. 2d 275, 276 (La. App. 4 Cir. 1994), the plaintiff was driving as 1985 Buick manufactured by GM when his steering failed and his vehicle veered into a guardrail. After the accident, the Williams’ damaged vehicle was taken to Jackie Rowan’s Automotive Repair where “[a]n employee of the repair shop discarded the rack and pinion steering assembly. Mr. Williams, therefore, could not produce those parts at the trial in support of his claim that they were defective.” Id. at 278. General Motors asserted that the failure to produce those parts in court “creates a presumption that the evidence would have been unfavorable to his cause.” Id. The court held that “[w]here a litigant fails to produce evidence available to him and gives no reasonable explanation, the presumption is that the evidence would have been unfavorable to him….the record supports Mr. Williams’ contention that the part was inadvertently discarded when it was mistaken for scrap metal by an employee of Jackie Rowan’s Automotive Repair Shop.” Id. The court held that Mr. Williams therefore provided a reasonable explanation for his failure to produce the evidence in court and no such unfavorable presumption applied. Id.

While in the Williams case the plaintiff was able to provide a ‘reasonable explanation’ for his failure to produce the allegedly defect part, such a determination is fact intensive and varies from case to case. Depending on the plaintiff’s response to the inquiry requesting an inspection of the product, there may be an opportunity to seek an adverse presumption prior to trial.

 

The Firestone Case & Summary Judgment

firestoneAlternatively, if the facts so align, a more cost effective approach may be a motion for summary judgment. In a very recent case, Gladney v. Milam, 39, 982 (La. App. 2 Cir. 9/21/15); 911 So. 2d 366, the plaintiff was driving a leased van equipped with Firestone tires when the van’s right front tire failed and the plaintiff lost control of his vehicle. Firestone filed a motion for summary judgment on the grounds that plaintiff could not prove a defective condition without producing the tire at issue, which had gone missing for reasons unknown. Id. at 368. The plaintiff had “photographs of the damaged tire, a copy of the state police accident report listing tire failure as the cause of the accident, [and] the affidavit of Sidney Youngblood, a manager of a tire store who had reviewed photographs of the tire, and correspondence concerning the location of the tire.” Id. The court ultimately held as follows:

 

At trial, the plaintiffs would have the burden of proving by a preponderance of evidence that a characteristic of the tire made it unreasonably dangerous, or that the tire was negligently maintained, thereby causing the accident. However, the plaintiffs’ experts did not know the air pressure at the time of the accident or when the pressure was last checked, and could only speculate that the tire was defective given the visible damage to the tire depicted in the photographs. Thus, although the circumstantial evidence offered by plaintiffs raised several plausible explanations for the cause of the tire’s failure, the record does not contain sufficient evidence from which a reasonable juror could conclude that more probably than not the accident was caused by either a defective condition of the tire or negligent maintenance.

Consequently, we cannot say the district court erred in granting summary judgment in favor of Firestone . . . . Id. at 372.

 

While the above brief discussion only serves a cursory analysis of the ‘Case of The Missing Product,’ it shows that when you have a products liability case with no product, there are substantively powerful and potentially cost effective procedural paths to go down that can advantageously position a manufacturer’s defenses. Proper discovery inquiries also undoubtedly go a long way toward setting the framework for these defenses and, as in any case, require attention to detail so as to garner the right information.

Rhode Island Jury Returns a $23 Million Dram Shop Verdict

Posted in Dram Shop Liability, Premises Liability, Rhode Island Courts

craft beer 2Following a five-week trial, a Providence jury found Twin River Casino, a Providence liquor store, and a teenage drunk driver liable in a dram shop case where the plaintiff, Alissa Moulton, sustained serious spinal injuries following an April 24, 2010 motor vehicle accident. Specifically, Moulton was paralyzed from the chest down when she and her friend, Cristina Sianpi, were ejected from the back seat of a 1997 Toyota Camry.  The car’s driver, 18 year-old defendant Alexander Arango, was Moulton’s boyfriend and the father of their child. According to reports, Arango lost control of the Camry, which struck a median barrier, crossed the two right lanes of the highway, rolled over, and collided—rear end first—with a tree on the highway’s grass shoulder.

Although historically known as “conservative” in terms of verdict awards, it took this particular jury less than two days of deliberation before awarding Moulton $23 million in damages, plus interest. Additionally, the jury assigned 70 percent responsibility to the underage driver, 20 percent to Twin River Casino, and 10 percent to Royal Liquors, a Providence liquor store that allegedly sold alcohol to Arango. Under Rhode Island law, each defendant is jointly and severally liable for the entire amount of damages regardless of the percentage of responsibility. (R.I.G.L. § 10-6-2.)  The defendants against whom a money judgment is entered are also, however, entitled to a set-off in the amount of either: (1) the total amount paid by each settled defendant; or (2) the percentage of fault assigned to each of those settled defendants by the trier of fact, whichever is greater.  (R.I.G.L. § 10-6-7.)

At trial, Moulton, who is now confined to a wheelchair, was represented by Providence personal injury firm of Mandell Schwartz & Boisclair.  Her lawyers argued before Judge William E. Carnes, Jr., that Twin River was negligent in serving alcohol to a visibly intoxicated Arango, and that Twin River violated the Rhode Island Liquor Liability Act (R.I.G.L § 3-14-1 et. seq.) by negligently serving the underage driver.

For his part, Arango, was sentenced to two years in prison after pleading guilty in June 2010 to two counts of driving to endanger resulting in serious bodily injury, and one count of driving under the influence.

A spokesperson for Twin River has suggested that the casino may seek to appeal the decision, as it is “inconsistent” with evidence put on by the defense.

 

About the Authors

Kenneth R. Costa is a partner with Manion Gaynor & Manning. He is a member of the multi-state Products Liability Litigation Team, with a primary focus in insurance defense, products liability, asbestos-related and toxic torts cases in Rhode Island, Massachusetts, and Connecticut.

Matthew Giardina is an associate in Manion Gaynor & Manning’s Providence office, and a member of the firm’s Products Liability and Complex Tort Litigation Group. He focuses his practice in the areas of products liability defense, mass torts, and other complex tort litigation.

D.C. Court of Appeals Overturns Frye and Adopts Federal Rule of Evidence Rule 702

Posted in Complex Torts, Products Liability, Toxic Tort
district court

Washington, D.C. District Court of Appeals

The District of Columbia Court of Appeals recently adopted the standards found in Federal Rule of Evidence 702 (“Rule 702”), regarding the admissibility of testimony by expert witnesses, thereby replacing the Frye (“Frye”) test.  See Motorola Inc., et al. v. Michael Patrick Murray, et al., 2016 WL 6134870 (October 20, 2016)(“Motorola”). Washington D.C. is now the most recent jurisdiction to adopt Rule 702, a trend that has continued since Rule 702 was amended in 2000 to reflect United States Supreme Court decisions pertaining to expert witness testimony, such as Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999); and General Electric v. Joiner, 522 U.S. 136 (1997).

Rule 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

  1. the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
  2. the testimony is based on sufficient facts or data;
  3. the testimony is the product of reliable principles and methods; and
  4. the expert has reliably applied the principles and methods to the facts of the case.

In Motorola Plaintiffs in thirteen cases sued numerous cell phone manufacturers, service providers, and trade associations, alleging that long-term exposure to cell-phone radiation caused their brain tumors. The trial Judge Frederick H. Weisberg, held four weeks of evidentiary hearings on the admissibility of the expert testimony offered by the plaintiffs. He concluded that, based on the record before him, some, but not all, of Plaintiffs’ proffered expert testimony on general causation was admissible under the Frye evidentiary standard, but “most, if not all, of Plaintiffs’ experts would probably be excluded under the Rule 702/Daubert standard.” Judge Weisberg then certified the following question of law to the Circuit Court: “whether the District of Columbia should adopt Federal Rule of Evidence 702 (or a revised Frye standard) for the admissibility of expert evidence.”

In certifying the question, Judge Weisberg noted,

[A]t the risk of over-simplification[,] if a reliable, but not yet generally accepted, methodology produces ‘good science,’ Daubert will let it in, and if an accepted methodology produces ‘bad science,’ Daubert will keep it out; conversely, under Frye, as applied in this jurisdiction, even if a new methodology produces ‘good science,’ it will usually be excluded, but if an accepted methodology produces ‘bad science,’ it is likely to be admitted.

The District of Columbia Court of Appeals, en banc., heard the question, Plaintiffs’ appeal, and adopted the Rule 702 standards unanimously, with Judge Easterly providing a concurring opinion.

Associate Judge Fisher, writing for the Court, stated, “the ability to focus on the reliability of principles and methods, and their application, is a decided advantage that will lead to better decision-making by juries and trial judges alike.” Associate Judge Fisher highlighted the language in State v. Coon, deeming the Frye test, “as both unduly restrictive and unduly permissive” because the crux of the test is general acceptance as opposed to reliability. 974 2d. 386, 394 (Alaska 1999). The standards deriving from Rule 702, however, require trial court judges to act as “gatekeepers” in the determination of whether or not expert testimony is relevant and reliable. Associate Judge Fisher cited to the Daubert decision to emphasize, “the objective of the gatekeeping requirement is to make certain that an expert…employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”  Despite this, the Court explicitly stated that differing scientific opinions can be equally reliable. In so doing, the Court established that minority opinions within expert communities will not be per se unreliable.

The Court considered revising the Frye test, as some jurisdictions have done. It rejected doing so given their belief that Rule 702/Daubert analysis better ensures evidentiary reliability based upon scientific validity. It also found substantial benefits to be gained from adopting a test that is widely used.

The Court directed future litigants and judges to review closely the Advisory Committee Notes to Rule 702, and the cases cited therein when making Rule 702/Daubert challenges. See Fed. R. Evid. 702 advisory committee’s note (2000 Amendment); Kannankeril v. Terminix Int’l, Inc., 128 F.3d 802 (3d Cir. 1997)(regarding newly founded expert theorems); Sheehan v. Daily Racing Form, Inc., 104 F.3d 940 (7th Cir. 1997)(demanding consistency between the expert’s professional and testimonial opinion); Claar v. Burlington N.R.R., 29 F.3d 499 (9th Cir. 1994)(regarding expert’s consideration of “obvious alternative explanations”). It will apply Rule 702 to all civil and criminal cases in which the trial begins after the date of this opinion. The Court also indicated that it will consider at a later time whether the standard applies to cases that have already been tried but are not yet final on direct appeal.

The District of Columbia now joins twenty-seven states in adopting the factors of the Daubert standard and rejecting the Frye test. See Andrew Flake, Eric Harlan & James King, 50 State Survey of Applicability of Daubert, available here (last visited Oct. 28, 2016).

The full decision can be read here.

About the Author

Jonathan F. Tabasky is a partner with the firm. He has primary responsibility for the management, handling and defense of litigation brought against many different types of professionals. His clients include architects, attorneys, engineers, real estate brokers, real estate appraisers and independent insurance adjusters, among others. Since joining the firm, Jon has also been extensively involved in the defense of product liability and toxic tort claims. In this capacity, Jon represents a broad range of companies, including those that manufacture prescription drugs, protective clothing, fittings, heating devices, wire and cable, trucks, aircraft and turbines. As a result, Jon regularly works with renowned epidemiologists, pathologists, industrial hygienists, pulmonologists, radiologists, economists and others. Jon also defends product and premises liability cases brought against major retailers.

Alexander Zodikoff is a law clerk with Manion Gaynor & Manning LLP, and in his final year of law school at Suffolk University. Alexander received his B.A. from Virginia Tech.

Johnson & Johnson Found Liable in Latest Talc Product Trial

Posted in Asbestos Litigation, Complex Torts, Talc Litigation

Talc!For the third time this year, a St. Louis, Missouri jury found Johnson & Johnson liable in a case where plaintiff alleged that her ovarian cancer was caused by her use of talcum powder products. At trial, Deborah Giannecchini, a 62 year-old California woman, claimed that her decades-long use of Johnson & Johnson talcum powder caused her to develop ovarian cancer in 2013. After a month-long trial, the jury awarded her more than $70 million in damages, approximately $65 million of which were comprised of punitive damages.

At trial, Giannecchini’s lawyers argued that Johnson & Johnson:  (1) was aware for more than 30 years that use of talc-based products increases the risk of ovarian cancer; and (2) did not warn the public of the potential health hazards associated with the product.

In the two prior St. Louis cases which reached a verdict against Johnson & Johnson, juries found in favor of plaintiffs and awarded $72 million and $55 million, respectively, in damages. While Johnson & Johnson has seen limited success before juries, the company hopes that each of the three St. Louis verdicts will be overturned on appeal. Specifically, Johnson & Johnson’s appellate arguments will focus on the lack scientific proof to support the recent jury awards. Indeed, Johnson & Johnson successfully used this approach in New Jersey, where a state court dismissed two talc-based actions after ruling that plaintiffs’ scientific experts were unable to provide sufficient evidence that the use of talcum powder causes ovarian cancer.

Johnson & Johnson is currently defending more than 1,500 cases nationwide.  In each of these cases plaintiffs allege that the company failed to warn consumers of the potential health risks associated with the use of talc products.

Why a Wisconsin Judge Rejected an Asbestos Case as “Disingenuous”

Posted in Asbestos Litigation, Toxic Tort
KastenmeierUSCT_Madison_WI_exterior_941675052106904545_1435163225376

Robert W. Kastenmeier United States Courthouse Madison, WI

A district court judge for the Western District of Wisconsin has issued a defense-verdict following a three-day bench trial, during which Plaintiff argued that his father’s work with Kaylo pipe insulation caused his death from mesothelioma. In his opinion in Gary Suoja, Individually and as Special Administrator of the Estate of Oswald Suoja v. Owens-Illinois, Inc., Magistrate Judge Stephen Crocker found that Plaintiff failed to meet his burden of showing that exposure to Kaylo was a substantial cause of Mr. Suoja’s mesothelioma. Though ultimately decided on the basis of pretrial motions that precluded the testimony offered by Plaintiff’s causation expert, Judge Crocker discussed Plaintiff’s failure to incorporate evidence of alternative exposures, stating that ignoring such evidence when arguing cumulative exposure was “disingenuous” on the part of the Plaintiff.

The current matter was filed on behalf of the Estate of Gary Suoja against numerous companies, only one of which—Owens-Illinois—remained at trial. Mr. Suoja worked as a union asbestos worker for 40 years, beginning in 1944. Throughout the course of the lawsuit, the Estate argued that Mr. Suoja’s lengthy career as an asbestos worker caused him to work with and around numerous asbestos-containing products; however, evidence of these exposures was noticeably absent from trial.

In order to establish the causation element of his negligence and strict liability claims, Plaintiff offered only the testimony of Dr. Frank. Dr. Frank’s position was that Mr. Suoja’s cumulative exposure to asbestos from working with Kaylo, manufactured by Owens-Illinois, caused his mesothelioma. When presenting his cumulative exposure theory, Dr. Frank took the position that any asbestos exposure, “no matter how slight, no matter how minimal” is a part of an individual’s cumulative exposure and thus a cause of resulting disease. Dr. Frank offered this opinion only in relation to Mr. Suoja’s limited work with Kaylo insulation; he did not offer any opinion about the amount of asbestos from Kaylo to which Mr. Suoja was exposed, nor did he compare the amount of Mr. Suoja’s Kaylo exposure to Mr. Suoja’s cumulative exposure to asbestos from the numerous other products he worked with over the course of his 40-year career.

Plaintiff took the position that Mr. Suoja’s admissions of other exposures were largely irrelevant, arguing that most were simply assertions of exposure without any information regarding the dosage level at which Mr. Suoja was exposed. Plaintiff further argued that if Owens-Illinois wanted to attack Dr. Frank’s causation opinion on the ground that he failed to account for other exposures, then it was defendant’s burden to establish that these alternative exposures were substantial in nature.

Judge Crocker addressed Plaintiff’s argument, calling it “unpersuasive” and stating that “[i]t is disingenuous for plaintiff to have obtained recovery from numerous bankruptcy trusts and asbestos manufacturers based upon sworn admissions of asbestos exposure and then to brush aside those admissions as irrelevant to causation in this lawsuit.” Plaintiff’s lawsuit against Owens-Illinois was ultimately dismissed for failure to establish both exposure and causation.

About the Author

Katherine Vogelhuber is an associate in the firm’s products liability and complex tort practice, where she concentrates on products liability defense and litigation management for a number of the firm’s national clients. Kate is admitted to practice in the Commonwealth of Massachusetts and the State of Illinois. In 2007, Kate received her Bachelor of Arts from Skidmore College in Saratoga Springs, New York. She received her J.D. from DePaul University College of Law in Chicago, Illinois in 2012.

 

New Trend Emerging From Pending California Take-Home Exposure Decision?

Posted in Asbestos Litigation, California Courts, Litigation Trends, Toxic Tort

ffonseca_articleCalifornia has become a hub for asbestos litigation.  Its plaintiff-friendly law and juries have attracted plaintiffs from both California and across the country.  A case currently pending in the Supreme Court of California concerning whether a duty is owed to a plaintiff who alleges “take-home” asbestos exposure could have a major impact on whether California becomes an even greater hotbed for asbestos litigation.  Should the Court impose a duty on an employer for “take home” exposures, this expansion of an employer’s duty is likely to lead to increased asbestos filings as plaintiffs seek out attractive jurisdictions based on substantive legal doctrine.

Recently, the Supreme Court of California heard oral arguments in coordinated “take-home” asbestos cases. In both cases, at issue is whether an employer owes a duty of care to members of an employee’s household who could be affected by asbestos brought home on the employee’s clothing.

In Kesner v. Superior Court, 226 Cal.App.4th 251 (2014), plaintiff, the nephew of a brake manufacturer’s employee, alleged that he developed mesothelioma as a result of exposure to asbestos from his uncle’s dirty and dusty clothing during frequent visits to his uncle’s home. In finding that the brake manufacturing company employer owed plaintiff a duty of care, the court found that “[a]s a general matter, harm to others from secondary exposure to asbestos dust is not unpredictable.” Kesner 226 Cal.App.4th at 259. Further, the harm “from a lack of precautions to control friable asbestos that may accumulate on employees’ work clothing is generally foreseeable.” Id.  As for employers, the court found that “extending the duty of care to [an employee’s household members or long term occupants of a residence] does not threaten employers with potential liability for an intangible injury that can be claimed by an unlimited number of persons.”  Id. at 261. Thus, the court not only imposed a duty on an employer for “take home” exposures, it extended a duty to any guest that frequents an employee’s home.  It is important to note, however, that despite the fact that plaintiff claimed that he was exposed to asbestos through his uncle’s clothing, plaintiff’s claim was premised on a theory of products, not premises, liability.

That distinction is important, as a month later a different appellate court ruled against extending a duty of care based on “take home” exposure in the context of a case alleging premises liability. In Haver v. BNSF Railway Co., 226 Cal.App.4th 1104 (2014), the heirs of an employee’s deceased wife claimed that she developed mesothelioma as a result of exposure to asbestos from the clothing her husband wore home while employed by the defendant company. Deciding not to follow the earlier Kesner decision, the Haver court distinguished the two cases by pointing out that Kesner was a products case while Haver involved allegations of premises liability. Importantly, though, the court noted that courts should be wary of the consequences of extending employers’ liability too far. Id. at 1110.

A decision by the California Supreme Court which extends a duty to the family and/or guests of an employee is likely to result in a huge uptick in asbestos claims filed in California, as plaintiffs look for favorable jurisdictions in which to bring their cases.  That is what has occurred in Illinois, where the Illinois Supreme Court upheld the appellate court’s reversal of an order granting an employer’s dismissal based on the lack of a duty to an employee’s spouse, and allowed plaintiff to re-plead foreseeability.  See Simpkins v. CSX Transp., Inc., 2012 Ill. 110662.  Conversely, multiple jurisdictions, such as Georgia, have shut the forum shopping door by holding that employers and premises owners owe no duty to a member of a household injured by take home exposure to asbestos. CSX Transp., Inc. v. Williams, (2005) 278 Ga. 888.  

Should the Supreme Court of California expand the scope of an employer’s duty to include “take home” exposure, venue selection flexibility and favorable new legal doctrine may very well cause a seismic shift in asbestos filing activity, leaving California at the epicenter.

 

About the Author

Freddy Fonseca is an associate with Manion Gaynor & Manning and an FAA licensed airframe and power plant technician. Clients have come to rely on Freddy for his eight-year career as an aircraft maintenance technician, knowledge of federal aviation regulations and airport operations, and enthusiasm for aviation, to defend toxic tort and products liability aviation cases.  Prior to attending law school, Freddy was an aircraft technician for a major airline performing engines changes, sheet metal repairs, brake changes, and avionics and systems troubleshooting.  Utilizing his aviation experience, he brings a unique practical perspective to his civil litigation law practice.