Articles

 

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.