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American Bar Association


Third-Party Subpoenas and Personal Jurisdiction after Daimler v. Bauman

By James M. Beck

Emerging precedent, while still relatively sparse, appears to support application of Daimler to third-party subpoenas.

California Adopts the Sophisticated Intermediary Doctrine but Refuses to Apply It

By W. Clay Massey and Ronnie A. Gosselin

The state supreme court ruled in Webb v. Special Electric Co., Inc., a case involving the most toxic form of asbestos.

The Plaintiffs' Perspective: Putting the Notion of "Woodshedding" to Rest

By Danielle Gold

Defendants' attempts to restrict communications between plaintiffs' counsel and plaintiffs' physicians remain unsuccessful.

Recent Developments in Aviation Litigation 2016: Preemption

By Erika Maurice and Vincent Lesch

Courts continue to grapple with the boundaries of this preempted field and what claims or standards of care fall within it.

Treating Physicians and Causation: How Far Can They Go?

By Andrea Mahady Price

The new Rule 26(a)(2)(C) has been accepted by the courts—except when treating the physician’s opinion goes beyond the medical records.

ABA Core Knowledge—Part I: Taking Your First Expert Deposition

By Richard M. Gaal

Understanding the basics of preparing for and taking your first expert deposition is fundamental for young lawyers practicing in the mass torts arena.

Picking Up the Pieces: Litigating after the Big Daubert Ruling

By Joe Winebrenner and Jeff Wojciechowski

Litigants on both sides of the bar have a variety of options.

Jenga for Experts: How Much Can One Expert Rely on Another?

By Eric E. Hudson and Richelle W. Kidder

There are traps in the rules for the unwary expert who seeks to rely on another witness's underlying reports or work in formulating his or her opinion.

Coordination among Federal Prosecutors, Regulators, and Civil Enforcers: Questions Abound

By Adam J. Spicer and Kasey C. Mitchell

Two of the most important and consequential questions about the practical effects of the Yates memo stem from some of the memo's most controversial pronouncements.

The MMTJA and the Battle to Establish General Personal Jurisdiction in Foreign Aviation Disasters

By Scott Brooksby

A major non-American aircraft manufacturer was not subject to personal jurisdiction anywhere in the country.

Mullin' Over Preemption: Lohr, FDA Regulations, and Mullins

By Anonymous

Federal preemption of state law is one of the most significant defenses employed by drug and medical device manufacturers defending product liability lawsuits.

How Plaintiffs May Take Advantage of the Federal Rules Changes on Discovery

By Paul D. Rheingold

Some new provisions will aid tort plaintiffs, and other changes that may appear to be impediments to full discovery are likely not to be applied in the manner hoped for by early drafters.

Failure to Extrapolate! Seventh Circuit Requires Experts Connect Data with Opinions

By Matthew A. Moeller

In toxic-tort matters, experts may be held to a standard more rigorous than what may be allowable under the general Daubert framework in another type of case.

Making the Most of a Matrix-Driven Mass Tort Mediation Session

By Alex Polsky

A settlement master's role is not simply to 'get' plaintiffs to take the settlement.

Discoverability of Airline Voluntary Safety Programs in Civil Litigation

By Michael S. Krzak

A discussion of several major programs, as well as the reported decisions and recent legislation that further solidify that they are discoverable.

Striking Back: Federal Rule 37(c) and Untimely Expert Reports

By Puja Leekha and Molly E. Flynn

In mass tort trials, surprise often takes the form of untimely expert reports.

Clapper and Remijas: A Footnote in the Door for Data Breach Plaintiffs

By Anonymous

Young lawyers interested in complex litigation should be aware of Remijas and its likely progeny.

Show It, Don't Tell It: Twenty-First-Century Animation in Air Crash Litigation

By Michael S. Krzak

In deciding whether to make use of an animation, it is critical to distinguish between the terms "animation" and "simulation."

Forum Shopping with CAFA: Ninth Circuit Reopens the Starbucks

By Kristin L. Beckman

Ninth Circuit practitioners should review these cases carefully.

Handling Aviation Disaster Claims: One Insider's View from the London Market

By Nelson Camacho

What's been happening outside of the public view as insurers seek to manage some of the major aviation losses in recent years.

Expert Evidence at Class Certification and the Role of Daubert

By M. Joseph Winebrenner

Does the standard apply at this stage, and if so, to what extent?

Increasing Coordination among Federal Prosecutors, Regulators, and Civil Enforcers

By Adam J. Spicer

The lines between civil litigation and white-collar criminal law have increasingly become blurred.

Are Juries Really Such a Wildcard Compared with Judges?

By Leslie Ellis

Judges are people, too.

Insurance for Product Recall Expenses

By Syed Ahmad, Kyle Sampson, and Patrick McDermott

Product recall policies can be industry-specific and even specific to the underlying cause of the recall.

Does Merely Registering to Do Business in a State Create General Jurisdiction by Consent?

By James M. Beck

The initial results of a year of post-Bauman litigation suggest that registration to do business is too thin a reed to support general jurisdiction.

The Evolution of the Common Benefit Order

By Karen Woodward and Matthew A. Reed

The scope of CBOs has broadened significantly in recent years, imposing more and more burdens on defendants.

Advice to Young Attorneys from a New In-House Lawyer

By David L. Schwan

Always strive to make your value as an attorney clear and vital.

Charlton: Causation Clobbers Canadian Class

By Cheryl Woodin and Court Peterson

The reasoning in Charlton prescribes that there can be no workable methodology where the consideration of every individual's medical history is necessary.

Bringing the Cyber War to the Medical Device Battleground

By Karen Woodward and Mary Beth Buckley

FDA and stakeholders hone in on the security of interoperable medical devices.

Medical Discounts Produce Judicial Discord

By James M. Beck

With the increasing prevalence of third-party insurance, the recovery of medical expenses is not as straightforward as it used to be.

The Significance of Bankruptcy in Mass Torts Litigation

By M. Joseph Winebrenner

An introduction to standing and judicial estoppel for young lawyers.

The Need for the Supreme Court to Revisit Daubert, Again

By Christopher D. Barraza

The Court missed an opportunity to resolve a glaring circuit split and restore consistency in the federal courts.

The Liability Atmosphere Awaiting the Commercial Human Spaceflight Industry

By Doug Griffith

What can the pioneers in this fledgling industry expect to confront?

Nationwide Class Certification after Mazza v. American Honda Motor Co.

By Munjot Sahu

Material differences precluded California law from applying to all class members in Mazza.

Will Evaporated Cane Juice Be Sweet for Class-Action Plaintiffs?

By Mark Mansour, Jonathan Berman, Emily K. Strunk, and Stephanie L. Resnik

A guide for young defense lawyers.

Revised Rule 45: Making "Open Court" Only a Video Link Away

By Michelle M. Rutherford

A Louisiana district court takes an interesting interpretation of the rule.

Identifying and Defending a Claim for Educational Malpractice

By Donald F. Winningham III

A few practical tips will help determine what kind of claim you are actually dealing with.

Punitive Damages Involving New Jersey Defendants

By Ellen Relkin and Justin Reiter

New Jersey Multicounty judges as well as multiple federal circuits and district judges have ruled discordantly.

Peer Review and Beyond: A Deep Dive into the Data

By Cynthia D. Driscoll, Thomas S. Jones, and Charles H. Moellenberg Jr.

Developing the tools to analyze scientific studies critically is essential.

Sense Ahead: What Is In Store for Food/Beverage Labeling Claims?

By Vivian Quinn and Tracey Ehlers

Conveying a sense of what lies ahead regarding class certification and ways courts and the legislature may approach claims involving food and beverage labeling.

Judicial Quasi-Class Actions

By Deborah A. Elsasser and David L. Schwan

Managing MDL and mass-tort litigation through judicial control over the appointment of lead counsel, attorney fees, and cost-shifting.

Strategically Selecting Case-Specific Deponents in Personal-Injury Mass-Tort Litigation

By M. Joseph Winebrenner and Christine Kain

A guide for young defense lawyers.

Rule 45 and You: The Young Lawyers' Guide to Federal Subpoenas

By David L. Schwan

The revised rule clears up much confusion.

What's New? Treatment of NTSB Reports and Underlying Findings

By Timothy S. Tomasik and Patrick J. Giese

Addressing the admissibility of government reports under Federal Rule of Evidence 803(8)(A)(iii) in the context of aviation litigation.

Decisions Limiting Toxic-Tort Claims: Aberration or Potential Trend?

By Andrew J. Scholz

New York stands out as one of the most difficult jurisdictions for defendants and their insurers.

EU 261 Class-Action Lawsuits in Illinois

By Deborah A. Elsasser

The path to final resolution appears for the airline defendants.

Enforcing an Ecuadorian Judgment Against a U.S. Company in Ontario

By Cheryl Woodin and Jonathan Chen

The Ontario Court of Appeal decides a case affecting the enforcement of foreign judgments against foreign defendants.

Attempts to Outsmart the FDA Could Lead to Mass Torts

By Deborah L. Shuff

Learn from the mistakes of Valor Medical.

A Privileged Position: Guidance for Nonwaiver Agreements and Orders

By David L. Schwan

Achieve great results through your "reasonable" efforts.

Book Review: The Class Action Fairness Act: Law and Strategy

By Linda Mullenix

This ready reference on CAFA should prove invaluable to any class-action practitioner.

Costa Concordia Actions: Florida Courts' Differing Views on Venue

By Deborah A. Elsasser, Nicholas Magali, and Philip R. Weissman

Some claimants have the opportunity to try their claims in Florida while others will litigate in Italy.

The CSIA: Reforming the TSCA with Modern and Robust Science

By Paul V. Majkowski

The proposed Chemical Safety Improvement Act seeks to modernize the decades-old Toxic Substances Control Act.

Increasing Your Firm Profile: Practical Tips for Young Lawyers

By David L. Schwan

Life for a new litigator contains many opportunities for professional development.

Whose Statement Is It Anyway? Gossiping Agents and the Hearsay Rule

By Timothy S. Tomasik

Principals, beware! A gossiping agent can doom your case.

Removal to Federal Court in Forum Defendant Cases

By Ellen Relkin and Brian Hardingham

Clever defense attorneys can use the forum defendant rule to their advantage.

Crash Reports: What Will the Jury Hear?

By Timothy S. Tomasik and Kimberly M. Halvorsen

The admissibility of government reports at trial pursuant to Federal Rule of Evidence 803(8)(A)(iii).

Restrictions on Tort Liability of Governmental Entities

By James B. Eisenberg

Suing after a natural disaster or terrorist attack is not as easy as it may seem.

The Every-Exposure Theory Reviewed

By Richard C. Beaulieu

Plaintiffs may be on shaky ground when proving causation of asbestos exposure.

Attempts to Avoid Forum Non Conveniens Rejected

By Mark R. Irvine and Aghavni V. Kasparian

Challenges to FNC in two recent air-disaster cases were denied in two different federal circuits.

Arbitral Decisions Upheld under the FAA

By Crystal R. Axelrod and James Hatchitt

Takeaways and practice tips, particularly in the context of complex litigation.

It's a Pom Wonderful Life—Or Is It?

By Karen Woodward

The reach of the Ninth Circuit's decision has not been as broad as anticipated.

Spoliation Considerations When Dealing with Social Media Evidence

By Kristin Caballero Tiffany

Attorneys must be aware of the use of social media as well as its pitfalls particularly during discovery and litigation.

End in Sight for Long-Running Forum Non Conveniens Battle

By Deborah A. Elsasser

The plaintiffs in In Re: West Caribbean Airways continue their search for a proper forum.

Guidance to Young Lawyers as They Enter the Cloud

By David L. Schwan

Document storage has come a long way from floppy disks.

Make Sure Your Expert Speaks Our Language

By Timothy S. Tomasik

Qualified trial counsel must instruct retained expert witnesses as to the required elements for all demonstrative and visual evidence used at trial.

Has the Asbestos Gravy Train Reached the End of the Line in Illinois?

By David A. Lester

A recent ruling may put an end to the state's swell of asbestos litigation.

Improving Diversity: Where Do I Begin?

By Rudy Perrino

Diversity numbers in both the ABA and the profession are disappointing.

Social-Media Advertising Tips for Young Lawyers

By David L. Schwan

Go from personal to professional.

Squeezing Buckman out of Pom Wonderful

By Matthew A. Reed

The Northern District of California has unduly narrowed preemption or may have replaced it entirely.

Res Ipsa Loquitur in Aviation Litigation

By Lea P. Valdivia

The doctrine is useful for plaintiffs, as "planes do not just fall out of the sky."

Removal Statute Amendments and Proposed Changes to Rule 45 Subpoenas

By Nicholas Magali

Removal procedure has been clarified while FRCP 45 is ready for an overhaul.

Design Defect Claims in the Wake of PLIVA, Inc. v. Mensing

By Christopher Windover

One unresolved issue is the extent to which other state law tort claims—aside from failure-to-warn claims—fall within Mensing’s preemptive reach.

'Hybrid Witnesses' and Federal Rule of Civil Procedure 26

By Andrea Mahady Price and Kristin L. Beckman

Recent changes were made to Rule 26’s reporting requirements, affecting the discoverability of attorney-witness communications and work product for “hybrid” witnesses.

Drawing the Line Between Class Action and Quasi-Class Action

By Matthew A. Fischer

As courts try to effectively adjudicate multidistrict litigation and global settlements, quasi-class action emerges as a means of greater regulatory control.

Testing Limits of the Adequate Alternative Forum in Aviation

By Deborah Elsasser

The applicability of the forum non conveniens doctrine is one of the most hotly contested issues in aviation accident litigation.

The Rules on Removal in Multiple-Party Cases: A Reprise

By Marie E. Chafe and Peter M. Durney

Later-served defendants no longer bound by the choices of earlier-served defendant.

OFAC's Effect on Air Carriers and Insurers in Air Disasters

By Daniel Correll

When evaluating a claim, careful consideration must be given to the status of all of the parties to determine if payment is considered a transaction in blocked property.

Complying with the California Transparency Supply Chains Act

By Matthew A. Fischer

The broad scope of the act means it will impact many companies located outside of California that have sales in the state or supply companies that do business there.

Disclosure Obligations for Unretained Experts

By Courtney A. Solomon

How much and what type of disclosure is sufficient under the new Rule 26(a)(2)(C)? The burgeoning case law has begun to provide answers.

Young Lawyers: Practice Tips from the Judge's Law Clerk

By Crystal R. Axelrod

Lawyers who are great at their job make it as easy as possible for judges to do their job.

Fracking's Alleged Links to Water Contamination and Earthquakes

By Barclay Nicholson, Kadian Blanson, and Andrea Fair

The jury is still out on the environmental effects of hydraulic fracturing.

Denial of Cert in Cases with Federal Preemption Defenses

By Deborah A. Elsasser

The defenses raised in these cases dealt with the preemption of state-law tort claims by the government-contractor defense and the aircraft owner/lessor immunity statute.

The Path to Aggregate Settlements

By Chad R. Hutchinson and Donna Brown Jacobs

Attorneys representing multiple parties must understand the ethical and practical considerations involved in proposing or accepting aggregate settlements.

The Recognition of "Ordinary" Mass Toxic Torts

By Paul V. Majkowski

As litigation between Chevron and residents of Ecuador continues, how the "ordinary" mass-tort or toxic-tort case will be addressed could take on greater importance.

Do "Private Settlements" Exist in Mass-Tort Litigation?

By Paul D. Rheingold

In one way or another, a judge has played a role in all mass-tort settlements, even some that might be characterized as "private."

Young Lawyers: Technology Is an Advantage in the Courtroom

By Crystal R. Axelrod

Here are three reasons why lawyers should use PowerPoint as a litigation tool whenever possible, along with a few practice pointers to ensure effective delivery.

Arranger Liability under CERCLA after Burlington Northern

By Andrew J. Scholz and Matthew D. Cabral

Few arranger-liability cases are summarily decided, even though the plaintiff must prove that the defendant intended to dispose of hazardous materials at a Superfund site.

The Evolving Burden for Removal under CAFA

By Laurie A. Novion and Ina D. Chang

Circuits have come in line on such issues as who bears the burden on removal and what evidence can be used to meet this burden, but other issues remain.

Criminalizing Aviation: Placing Blame Before Safety

By Judith R. Nemsick and Sarah Gogal Passeri

Following an aviation disaster, counsel must provide prompt advice concerning appropriate communications with safety investigators and criminal prosecutors.

Factors For and Against MDL Coordination

By John P. Lavelle Jr. and Thomas V. Ayala

The terms of 28 U.S.C. § 1407(a) are of limited value in predicting whether the Judicial Panel on Multidistrict Litigation is likely to initiate an MDL in a particular instance.

A Pilot Program for Complex Litigation

By Kristofer S. Riddle

The SDNY takes steps to stem unwieldy case-management issues.

Releasing Joint Tortfeasors

By Douglas J. Pepe

Knowing the rules and taking them into account can be important when drafting settlement agreements.

Federal Rules of Evidence: Expert Opinions Based on Inadmissible Evidence

By Douglas J. Pepe

When experts testify at trial in federal court, their opinions must have a sufficient basis.

The Food Safety Modernization Act: Another Law of Unintended Consequences?

By Gary Wolensky, Anne Marie Ellis, and Kelly Regan

The FSMA is intended to allow the FDA to focus more on preventing food safety problems rather than reacting to problems after they occur.

Canada's Consumer Product Safety Act: A Catalyst for Cross-Border Mass Tort Litigation?

By Cheryl M. Woodin and Brian M. Weingarten

New legislation creates an environment ripe for increasing class-action activity across the U.S.-Canada border.

Choice of Law Governing Asbestos Claims

By David T. Biderman and Judith B. Gitterman

Parties should not assume that the law of the forum will govern substantive issues in the case.

Preparing for and Taking an Effective Deposition, Part Two

By Ladd Sanger

Knowing how to preserve the deponent's testimony and to address improper objections made by opposing counsel is essential.

Increased Protection for Communications with Experts under Amended Rule 26

By Christopher R. Christensen and Robert Alaimon

Expert testimony has evolved into a complex, costly, and important aspect of pretrial discovery.

Federal Court's Injunction Against State Court Certification Is Reversed

By Jeffrey A. Holmstrand

Smith v. Bayer's procedural history provides a good snapshot of the state of mass tort litigation where cases are pending in multiple systems.

The Government's Latest Targets: In-House Lawyers and Corporate Executives

By Arameh Zargham

It is vital for companies to have a well-thought-out strategy to defend themselves as well as their lawyers and executives.

State "Preemption" Arguments Asserted in Ongoing Fracking Debate

By Andrew Scholz

Communities are concerned about fracking's possible effects on air quality and to drinking water.

Does Daubert Apply to Expert Evidence Submitted at the Class Certification Stage?

By Rudy Perrino

If courts are not allowed to rule on the merits, then it follows that circuit courts cannot employ the tools available to them under Rule 702 and Daubert.

Preparing for and Taking an Effective Deposition, Part One

By Ladd Sanger

No single factor contributes more to the relative success—or failure—of a deposition more than proper preparation.

The Admissibility of Governmental Records in Aviation Cases

By Mollie O'Brien

For the aviation law practitioner, the ability to use or exclude documents prepared by the NTSB or FAA as evidence at the time of trial is critical to effectively litigating the case.

Divisibility of Damages under CERCLA: Case Law after Burlington Northern

By Andrew J. Scholz and Edward Jacobson

Burlington Northern was seen by many as a game changer in CERCLA litigation with respect to the potential easing of a defendant's burden in avoiding joint and several liability.

Expert Discovery: Something Old and Something New

By Susan M. Halpern

It is vitally important that young lawyers understand the parameters of disclosure requirements.

Recent Developments in the Law Related to Fracking

By Edward Jacobson

Two recent fracking-related lawsuits in Arkansas have thrust the environmental effects of fracking into the spotlight.

State Law Failure to Warn Claims Go Mensing Against Generic Drug Manufacturers

By David Lester

The Supreme Court held that state law claims against generic drug manufacturers are preempted by federal law.

The 2010 Expert Witness Rule Amendments

By Gregory P. Joseph

The 2010 amendments close the door to almost all discovery of communications between counsel and retained experts.

Limitations of the Deliberative Process Privilege

By Maura K. Monaghan

Counsel should ensure that the privilege is limited to those circumstances in which it genuinely serves the public interest.

The Future of Strict Liability Law in Pennsylvania: Is a Change Foreseeable?

By Jodi Dyan Oley and Dennis P. Ziemba

Pennsylvania courts have intensified their analyses of the appropriate framework within which to evaluate strict product liability claims.

What Younger Class Action Lawyers Need to Know about the Current Supreme Court Term

By Jonathan R. Chally and Zachary A. McEntyre

Younger lawyers can show their strategic value by closely tracking developments in the law that might affect their clients.

Are Failure to Warn Claims against Generic Pharmaceutical Manufacturers Preempted under the FDCA?

By Eric E. Hudson

The Supreme Court is deciding the consolidated appeal of the Mensing cases from the Eighth and Fifth Circuits.

Illinois Supreme Court Rules That Tender of Relief Before Class Certification Moots the Case

By David S. Almeida, Anthony J. Anscombe, and Diana L. Geseking

Defendants should carefully consider the affirmative use of such offers to avoid potentially protracted class litigation.

Structured Attorney Fees and Qualified Settlement Funds in Mass Tort Settlements

By Douglas J. Pepe

Structuring attorney fees is common practice, but is full of traps for the unwary.

Exhibit Management in Mass Tort Cases

By Kristin Beckman

Drafting an exhibit list is a useful tool in preparing for trial both for you and your team.

Class Action Settlement: Putting the Brakes on "Copycat"Actions

By Christopher P. Ridout

Courts must consider the dilemma of concurrent jurisdiction involving similar parties, claims, and defenses.

Federal Courts Continue to Order FNC Dismissals in Foreign Air Crash Cases

By Deborah Elsasser

Courts have recently dismissed four foreign air crash cases on forum non conveniens grounds.

Adjusting to the New Federal Expert Discovery Rules

By Douglas J. Pepe

The days in which non-reporting expert opinions can be shielded from any pre-testimony disclosure are gone.

Mass Torts Litigation Forum: The Deepwater Horizon Gulf Oil Spill

By Allan Kanner, Catherine R. Riegle, Alan Rudlin, and Anthony Tarricone

Catherine R. Riegle speaks with three trial attorneys to discuss their views on the recent oil spill and its legal consequences.

Should Twombly Apply to Affirmative Defenses?

By David A. Lester

A number of post-Twombly district court decisions raise the question of whether the new pleading standard applies to affirmative defenses in addition to complaints.

Wyeth v. Levine: A Showdown Between the State Jury System and Federal Preemption

By Anita Modak-Truran

Wyeth v. Levine helps to inform the future of federal preemption in prescription drug cases

The Supreme Court on Punitive Damages and Other Issues

By Jeffrey A. Holmstrand

The opinion in Exxon Shipping addresses a number of substantive and procedural issues of interest to the mass torts/class action bar.

Practical Advice and Strategy Considerations for Consolidation by the MDL

By Gregory C. Cook

The transfer of multidistrict civil actions to a single transferee district for pretrial proceedings saves the judiciary financial resources and adjudicates claims fairly and more efficiently.