Category Archives: Litigation Strategies

Broadcasting Settlement Preference Runs Risk of Higher Cost in the Long Run

Some companies have been making it known that they prefer to hire defense attorneys who can move cases towards settlement. The motive in this strategy appears to be an attempt to keep down litigation costs, which can be substantial in litigation that can carry on for years. However, by broadcasting such a strategy, these companies run the risk of paying higher settlements and opening up the door for additional litigation.  There is nothing wrong with settling cases, especially bad liability cases, as early as possible…

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Proposed FDA Rule Changes Leading Food Companies to Take Proactive Measures

In December 2013, the FDA proposed comprehensive changes to the Food Safety and Modernization Act of 2008, with the intention of standardizing the processes for growing, harvesting, packing, and holding foods for human consumption. A summary of the proposals can be found on the FDA’s website. Food companies may have significant internal changes ahead in order to achieve compliance, should the proposed rules be adopted. In anticipation of that, some companies are already taking action – and it may prove to be a wise…

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How Much Is Too Much “Medical Evidence” To Ask For In A Personal Injury Action?

In the context of two lead paint exposure cases, the New York State Court of Appeals was recently called upon to delineate the plaintiffs’ obligations to substantiate their claims of injury during the course of discovery. In Giles v. Yi and Hamilton v. Miller, the Court struck a balance between plaintiffs’ obligations to support their claimed injuries with medical evidence and defendants’ interests in ferreting out medically unsupported or unsupportable claims at an early stage. In both cases the plaintiffs disclosed medical reports demonstrating that…

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Remember: Ascertainable Loss Needed for NJ Consumer Fraud Act Claim

Last week, the Appellate Division upheld the dismissal of a claim under the New Jersey Consumer Fraud Act (CFA) for failure to state a claim upon which relief can be granted.  In Schroeck v. Knight Mgmt. Ins. Servs., the Appellate Court affirmed Judge Willis Currier’s determination that the plaintiff had not suffered an ascertainable loss, as is required by the CFA, and thus could not pursue a CFA claim. This case arose in the context of a motor vehicle purchase.  The plaintiff purchased a…

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U.S. Supreme Court Draws the Line on Where Corporations Can Be Sued in the U.S.

This week the U.S. Supreme Court made strides for large nationwide and worldwide companies, protecting reasonable limits on where those companies may be sued in the U.S. In Daimler AG v. Bauman, No. 11-965 (U.S. January 14, 2014), the court unanimously held California state courts did not have jurisdiction over the international Daimler corporation based on the heavy market contacts of one of its subsidiaries in that state. In the Daimler case, Argentinian citizens brought suit against the German Daimler corporation in California state court.…

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Judge Sets Garlock’s Future Liabilities at $125 Million; Garlock Sues Plaintiffs’ Firms for Fraud

Garlock Sealing Technologies has been awaiting a U.S. Bankruptcy Court’s determination as to how much money will they will need to place in trust for future asbestos claimants since its bankruptcy trial concluded in August 2013. As previously reported by Risky Business, Garlock filed for Chapter 11 bankruptcy protection in 2010, seeking the formation of an asbestos trust to assume all future liability related to its manufacture of asbestos-containing gaskets. Garlock proposed putting $125 million into that trust; a number of asbestos plaintiffs’ firms,…

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FDA’s Refusal to Define “Natural” Opens the Door for More Litigation

On Monday, the FDA issued a  letter in response to three judges’ request, including Judge Kevin McNulty of the District of New Jersey, to clarify the term “natural” as it applies to food labeling requirements.  In its letter, the FDA opted not to create a formal definition for the terms “Natural,” “All Natural” or “100% Natural,” instead relying upon its 1993 policy, in short, that it means “nothing artificial or synthetic… has been included in, or has been added to, a food that would not…

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Judge Posner Admonishes Lawyers (and Judges) to Pay Attention to Science

In case you missed it, Judge Posner of the United States Court of Appeals for the Seventh Circuit issued an opinion several weeks ago in which he takes to task lawyers — and judges — who shy away from addressing issues of science and medicine in their cases.  The opinion, issued in case called Jackson v. Pollion, involved claims by a Illinois prison inmate that two prison employees committed a federal constitutional tort by depriving him of his hypertension medication for about three…

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Hedonic Damages Expert Not Worth Plaintiff’s Money

A recent Hudson County Superior Court decision affirmed a prior New Jersey rulings that an expert testifying to hedonic damages should be barred.  In Johnson v. Redd, the plaintiffs sought to introduce expert testimony from Stanley V. Smith, Ph.D., to support their claims for loss of the pleasure of life ( i.e., hedonic damages).  The defendants filed a motion in limine to bar the testimony, arguing that it was not proper under New Jersey law. The court held an admissibility hearing and reviewed not…

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Fighting Unnecessary E-Discovery Demands

A recent decision from a Pennsylvania trial court highlights the utility in fighting unreasonable discovery demands. In Brogan v. Rosenn, Jenkins & Greenwald LLP, the court denied a motion to compel electronic discovery, including metadata. Metadata is essentially embedded or hidden data about data. For example, an image may include metadata that describes when the image was created and a text document’s metadata may describe when the document was written and/or edited. More and more attorneys are becoming familiar with metadata and starting to include…

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