Application of a Universal Law in Multidistrict Litigation
When product liability cases are consolidated through Multidistrict Litigation ("MDL") proceedings, the proceedings are rife with complexities, and the obvious temptation for an MDL judge is to streamline and simplify these proceedings as much as possible. MDL judges have many appropriate tools at their disposal, such as case management orders and adoption of uniform discovery requests, to facilitate the proceedings. While certain techniques used to simplify and consolidate are appropriate, application of a "universal law" — in which one substantive law is applied to cases from various jurisdictions — is not. Application of a universal law violates due process and places consolidation and expediency above the interests of justice. Such a dangerous proposition was briefly suggested during the Ephedra MDL proceedings, involving hundreds of cases consolidated for pretrial purposes in the Southern District of New York.
Fortune Favors the Prepared Lawyer: The Benefits of a Trial Plan at the Class Certification Stage
By now, most class action lawyers are familiar with the argument that a court must take a "close look" during the class certification stage in order to ensure that certification is indeed practicable and appropriate. <i>Castano v. American Tobacco Co.</i>, 84 F.3d 734, 740 (5th Cir. 1996) (reversing certification decision for failure to assess "how a trial on the merits would be conducted"). This "close look," or "rigorous analysis," is not meant as an opportunity to prejudge the merits of the case, but is instead intended to give the court a realistic sneak preview of what trial of the issues will entail.
Beware of Judicial Exceptions to Federal Rule of Evidence 407
As you prepare for your upcoming product liability trial, things could not seem any better. You have qualified experts waiting to testify that your client's product is not defective. The client is credible, well established, clearly safety conscious and responsible. Throughout lengthy pretrial depositions, your client has never denied ownership or control of the product, and never claimed that purported safety measures suggested by the plaintiff were not feasible. He claims only that the measures would have been inconsequential based on the facts of the case. Therefore, it is your impression that the warning label your client added to the "Super Widget" subsequent to the accident will never be presented to the jury based on the protections of Federal Rule of Evidence 407, a conclusion the judge will surely come to as she flips through your motion in limine.
Researching Your Case: When Hard Work Pays Off (For the Other Side)
During the course of discovery in product liability matters, a key liability theme is often whether the defendant company complied with its regulatory obligations in connection with the product at issue. For example, in product liability litigation concerning chemical compounds, the focus might be on whether the company properly registered the compound with the EPA or with state environmental agencies. Likewise, in a pharmaceutical or medical device product liability case, plaintiffs will often focus on whether the product complied with FDA regulatory requirements. Plaintiffs' approach to such liability issues will often result in depositions that focus on whether, how, and when the defendant company informed the appropriate regulatory agencies of any risks potentially associated with use of the product at issue. Did the company submit the requisite scientific data; did it properly report known adverse events associated with the product at issue, and did it seek appropriate approval from the regulatory agency regarding the nature of its warnings to users and consumers? To that end, plaintiffs will often notice depositions of fact witnesses whom they think can provide testimony on the company's regulatory compliance or they may seek depositions pursuant to Fed. R. Civ. P. 30(B)(6) of witnesses "with knowledge" of the company's regulatory compliance.
Practice Tip: Prepare Yourself and Your Employee Witness for the 'Regulatory' Deposition
During the course of discovery in product liability matters, a key liability theme is often whether the defendant company complied with its regulatory obligations in connection with the product at issue. For example, in product liability litigation concerning chemical compounds, the focus might be on whether the company properly registered the compound with the EPA or with state environmental agencies. Likewise, in a pharmaceutical or medical device product liability case, plaintiffs will often focus on whether the product complied with FDA regulatory requirements. Plaintiffs' approach to such liability issues will often result in depositions that focus on whether, how, and when the defendant company informed the appropriate regulatory agencies of any risks potentially associated with use of the product at issue. Did the company submit the requisite scientific data; did it properly report known adverse events associated with the product at issue, and did it seek appropriate approval from the regulatory agency regarding the nature of its warnings to users and consumers? To that end, plaintiffs will often notice depositions of fact witnesses whom they think can provide testimony on the company's regulatory compliance or they may seek depositions pursuant to Fed. R. Civ. P. 30(B)(6) of witnesses "with knowledge" of the company's regulatory compliance.
Online: Explore Consumer Advocacy on the Web
Public Citizen ("PC") is a national, nonprofit consumer advocacy organization founded in 1971 to represent consumer interests in Congress, the executive branch and the courts. Its Web site is located at <i>www.citizen.org.</i>
Career Paths for Law Firm Accounting-Financial Professionals
This two-part article explores career path opportunities for individuals who have an accounting or finance background and experience working with law firms and attorneys. Part One focuses on opportunities to consult as an external service provider.
Establishing a Dominant Market Share
I see a lot of law firm strategic plans that talk about "establishing a position of dominance" or "being preeminent" in an area of practice, an industry or a geographic area. In my mind these are precisely the kind of market-driven, externally focused goals that law firms should be setting for themselves. The obvious question, however, is how does a law firm know whether or not it has created a position of dominance?
Views From the Blawgosphere
Web logging is an increasingly popular medium of expression, but many blogs (or "blawgs" as legal blogs are called) offer musings that are not useful or even credible. By contrast, <i>A&FP</i> Board member Ed Poll, long on the forefront of communication technology, provides comments with actual substance at www.lawbizblog.com. Here's a sampler to introduce our readers to Ed's online thinking.
New York Loses Bid to Tax CT Telecommuter
In a rare victory for a telecommuter in a "convenience of the employer" rule case, an administrative law judge has held against the state Division of Taxation and said New York has no business taxing all of the income of a man who worked from his home in New Canaan, CT.
