Case Notes
January 06, 2006
Highlights of the latest product liability cases from around the country.
Punitive Damages: How Much Is Too Much? Two Recent California Supreme Court Opinions Leave the Question Unanswered
January 06, 2006
In June 2005, in two companion decisions, the California Supreme Court for the first time interpreted a line of recent, landmark U.S. Supreme Court opinions on punitive damages. In so doing, the California Supreme Court attempted to bring clarity to the politically charged and legally nettlesome issue of when punitive damage awards become constitutionally excessive. However, the court's decisions may raise more questions than they answer. Instead of setting a bright-line rule for lower courts and litigants to follow (such as a fixed ratio of punitive damages to compensatory damages beyond which punitive damages must not go — something some courts of appeal attempted to do in response to the high court's landmark opinions), the court in <i>Lionel Simon v. San Paolo U.S. Holding Co., Inc.</i> No. S121723 (June 16, 2005) ("<i>Simon</i>"), and <i>Greg Johnson, et al., v. Ford Motor Company,</i> No. S121933 (June 16, 2005) ("<i>Johnson</i>"), elected to constrain, but fundamentally preserve, the possibility of truly punishing punitive damage awards.
Pre-Certification Discovery of Absent Class Members
January 06, 2006
The battle for class certification makes or breaks many lawsuits. Often, the certification decision hinges on whether there are questions of law or fact common to the class and whether the claims and defenses of the representative parties are typical of those of the class as a whole. Because the defense has no opportunity to question the class members themselves and to compare the claims and defenses of the named plaintiffs with those of the absent class members, it faces a big problem overcoming class certification: How is a defendant to know, let alone prove to the court: 1) that the claims of the class as a whole are not common and 2) that the claims of the named plaintiffs are sufficiently dissimilar to those of the class. In order to provide the court with record evidence on which it can base a decision as to whether individual or common issues predominate, parties should be permitted to engage in discovery of absent class members for class certification purposes.
Online: Learn About Punitive Damages on the Web
January 06, 2006
There is a wealth of information about punitive damages on the Internet, including the Web sites of various organizations and law schools, as well as blogs. Here is a sample of what's available.
Asbestos Bankruptcy Cases: The Rise of Objections By Disfavored Plaintiffs' Attorneys
January 05, 2006
There has been an emerging and interesting development in recent asbestos-related bankruptcy cases: the filing of objections by disfavored plaintiffs' attorneys. The filing of asbestos-related bankruptcy cases has increased dramatically with the establishment of Section 524(g) of the Bankruptcy Code. <i>See</i> Stephen J. Carroll, et al., <i>Asbestos Litigation</i>, 151-55 (Rand Inst. for Civ. Just., 2005) (reporting at least 73 asbestos-related bankruptcies since 1982, more than half of which were filed in the past 6 years). Section 524(g) provides asbestos-challenged companies a way to reorganize to shed their asbestos liabilities and channel all future asbestos claims to a trust established through the bankruptcy process. To achieve confirmation of a plan incorporating relief under Section 524(g), a debtor must have the consenting vote of 75% of the present affected asbestos claimants, among other things. This consent requirement has led debtors to enter into negotiations with asbestos claimants in advance of a bankruptcy filing in order to ensure sufficient voter approval for the plan of reorganization.
West Virginia High Court: No 'Occurrence' in Faulty Workmanship
January 05, 2006
West Virginia's highest court has held that a commercial general liability ('CGL') policy does not provide coverage for faulty workmanship claims because such claims do not constitute an 'occurrence.' <i>Webster County Solid Waste Auth. v. Brackenrich & Assocs., et al.</i>, Nos. 31861 & 31862 (W.Va. June 30, 2005). This case reinforces the core concept — long recognized in insurance law — that general liability coverage protects against liability to others due to third-party property damage or bodily injury and does not serve as a performance bond for the policyholder's own work.
Kelo v. City of New London: Takings, 'Public Use,' Urban Waterfront Redevelopment, and the Likely Survival of the Republic
January 04, 2006
In June, the Supreme Court affirmed the power of municipal redevelopment agencies to take property by eminent domain in order to assemble large parcels for economic development. <i>Kelo v. City of New London</i>, No. 04-108 (U.S. June 23, 2005) held that a municipality may take private homes in good condition to transfer them to a private developer as a part of an integrated plan to redevelop an area of New London. This use of eminent domain did not violate the "public use" requirement of the Takings Clause of the Fifth Amendment that, at its core, prohibits the government from taking private property solely to transfer it to another private person to serve a private interest. Kelo follows the Court's decision in <i>Lingle v. Chevron U.S.A. Inc.</i>, 125 S. Ct. 2074 (2005), where the Court ruled that a state statute that was not reasonably calculated to achieve its stated goal was not, by virtue of that irrationality, an unconstitutional taking. (In that case, the statute imposed a cap on the rent that oil companies could charge service station owners in Hawaii in order to achieve the stated goal of lower gasoline prices.)
Infringement By Source Code 'Golden Master': Developments in Patent Infringement Law Concerning Extra-U.S. Sales
January 04, 2006
Until recently, U.S. software companies comfortably operated under the assumption that selling software that was copied from a "golden master" CD outside of the United States, and which was sold only to customers outside of the United States, did not infringe U.S. patents. Recent developments in the law have destroyed that comfort and made clear that infringement liability may very well lie for exactly those types of foreign sales.
Federal Preemption and Tort Claims
January 04, 2006
For medical device manufacturers, federal preemption can be a powerful defense to state tort claims. Although there is some split of authority, most federal courts of appeals that have addressed the issue have held that when a medical device reaches the market via the Food and Drug Administration's (FDA) rigorous "premarket approval" (PMA) process, many state common law claims are expressly preempted by the Medical Device Amendments (MDA) of 1976.
Experts on Juries
January 04, 2006
As blanket occupational exemptions for jury duty become a relic, litigators are split on whether there is a need for specific jury instructions to keep jurors from relying on their expertise in evidentiary matters. This issue tends to be particularly troubling for medical malpractice attorneys, as the pool of potential jurors with knowledge of medical issues -- doctors, nurses, physical therapists, etc. -- is so large. One court system -- New York's - instructs professionals to keep their expertise outside of the jury room. No other court currently singles out professional jury-deliberation conduct in jury instructions.
