Complex Lit Blog

Daubert — If Expert Testimony Based on “Good Grounds,” It Should Go to Jury — Ultimate Question Is Whether Expert Employs in Courtroom Same Level of Intellectual Rigor That Characterizes Expert Practice in the Field

Faulkner v. Arista Records LLC, 2014 U.S. Dist. LEXIS 129711 (S.D.N.Y. Sept. 15, 2014): "Courts within the Second Circuit have liberally construed expert qualification requirements." In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab. Litig., MDL No. 1358 (SAS), 2008 WL 1971538, at *5 (S.D.N.Y ...

Faulkner v. Arista Records LLC, 2014 U.S. Dist. LEXIS 129711 (S.D.N.Y. Sept. 15, 2014): "Courts within the Second Circuit have liberally construed expert qualification requirements." In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab. Litig., MDL No. 1358…

Inherent Power Sanctions — Bad Faith Inferable If Acts Are “So Completely without Merit” — More Exacting Abuse of Discretion Standard in Sanctions Appeals — Claim Colorable If It Has Some Legal, Factual Support and a Reasonable Belief in It

Hollon v. Merck & Co., Inc., 2014 U.S. App. LEXIS 20237 (2d Cir. Oct. 20, 2014): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be VACATED AND REMANDED. Gary J. Douglas appeals from the judgment of the United States District Court for the Southern District of N ...

Derivative Actions — Massachusetts Business Trusts — Applicable Law (Substantive (Mass.) vs.Procedural (Forum) — Dismissal Based on Special Litigation Committee Investigation

Rotz v. Van Kampen Asset Mgmt., 2014 N.Y. Misc. LEXIS 4663 (Sup. Ct. N.Y. Cnty. Oct. 22, 2014): In these shareholder derivative suits, plaintiffs allege that certain officers of the nominal defendant trusts and the trusts' former investment advisers breached their fiduciary duties and wasted corporate assets by causing the trusts ...

Email/Text Admissibility — Authentication by Sender of Her Messages + Testimony They Were Sent to Recipient’s Address and Replies Were Consistent with Recipient’s Writing Style

State v. Womack, 2014 Wash. App. LEXIS 2566 (Wash. Ct. App. Oct. 21, 2014): N. Additional Ground 23 (Admission of E-mails) Womack claims the trial court erred by allowing the State to admit a copy of an e-mail between AW and Womack and allowing Voelker to testify that he received a copy of two e-mails ...

State v. Womack, 2014 Wash. App. LEXIS 2566 (Wash. Ct. App. Oct. 21, 2014): N. Additional Ground 23 (Admission of E-mails) Womack claims the trial court erred by allowing the State to admit a copy of an e-mail between AW…

Inherent Power Sanction of Summary Judgment for Declining to Pay Attorney’s Fees Ordered as a Prerequisite to the Party’s Supplementing Its Claims (a Requirement of a Local Rule of Court) Reversed — Bad Faith Violation of Local Rule Essential

Anticancer, Inc. v. Pfizer, Inc., 2014 U.S. App. LEXIS 20059 (Fed. Cir. Oct. 20, 2014): This litigation concerns patents owned by AntiCancer, Inc. on technology related to the imaging of gene expression using a green fluorescent protein linked to a gene promoter. The fluorescent protein is derived from a species of green-glowing jell ...

Experts / Daubert — The Abuse of Discretion Standard Applies as Much to the Trial Court’s Decisions about How to Determine Reliability as to Its Ultimate Conclusion

Decker v. GE Healthcare Inc., 2014 U.S. App. LEXIS 20049 (6th Cir. Oct. 20, 2014): We review the district court's decision to admit or exclude the testimony of a party's expert witness for abuse of discretion. Kumho Tire, 526 U.S. at 152; Sigler, 532 F.3d at 478. As the Supreme Court explained in Kumho Ti ...

Judicial Recusal — May Judges Recuse Themselves from Part of a Case But Not All of It under § 455? — Circuit Split — Sixth Circuit Adopts Majority Rule that Partial Recusal Is Permissible

Decker v. GE Healthcare Inc., 2014 U.S. App. LEXIS 20049 (6th Cir. Oct. 20, 2014): On March 22, 2013, after twelve days of testimony and two days of deliberation, a jury returned a verdict in favor of the Deckers. Although the jury found for GEHC on the design defect and nonconformance to representation claims, the jury found for plai ...

Email / Text Admissibility — Texts Properly Admitted for Impeachment Purposes Only, Pursuant to Rule 613(a)

I. ADMISSION OF TEXT MESSAGE EVIDENCE People v. Webb, 2014 Mich. App. LEXIS 1916 (Mich. Ct. App. Oct. 16, 2014): Defendant first argues that the trial court erred in admitting evidence regarding his stepdaughter's text messages. A trial court's decision to admit or deny evidence is reviewed for an abuse ...

I. ADMISSION OF TEXT MESSAGE EVIDENCE People v. Webb, 2014 Mich. App. LEXIS 1916 (Mich. Ct. App. Oct. 16, 2014): Defendant first argues that the trial court erred in admitting evidence regarding his stepdaughter's text messages. A trial court's decision…

Hearsay Problems Proving Legislative Intent through Newspaper Articles — Limited Utility of Residual Exception (Rule 807) — Alternate Proof

Planned Parenthood SE, Inc. v. Strange, 2014 U.S. Dist. LEXIS 148662 (M.D. Ala. Oct. 20, 2014): On August 4, 2014, the court issued an opinion on the merits of the plaintiffs' constitutional claim against the staff-privileges requirement of Alabama's Women's Health and Safety Act, 1975 Ala. Code § 26-23E-4(c). Se ...

Spoliation — Sanctions, Adverse Inference Instruction Denied — Variety of Other Curative Measures Imposed (Illustrative of What Proposed Rule 37(e) Might Contemplate)

Decker v. GE Healthcare Inc., 2014 U.S. App. LEXIS 20049 (6th Cir. Oct. 20, 2014): In 2005, in connection with a magnetic resonance imaging procedure ("MRI"), Paul Decker received a dose of Omniscan, a gadolinium-based contrast agent manufactured by GE Healthcare [*2] Inc. and GE Healthcare AS ("GEHC& ...

Commercial Litigation and Arbitration

Daubert — If Expert Testimony Based on “Good Grounds,” It Should Go to Jury — Ultimate Question Is Whether Expert Employs in Courtroom Same Level of Intellectual Rigor That Characterizes Expert Practice in the Field

Inherent Power Sanctions — Bad Faith Inferable If Acts Are “So Completely without Merit” — More Exacting Abuse of Discretion Standard in Sanctions Appeals — Claim Colorable If It Has Some Legal, Factual Support and a Reasonable Belief in It

Derivative Actions — Massachusetts Business Trusts — Applicable Law (Substantive (Mass.) vs.Procedural (Forum) — Dismissal Based on Special Litigation Committee Investigation

Email/Text Admissibility — Authentication by Sender of Her Messages + Testimony They Were Sent to Recipient’s Address and Replies Were Consistent with Recipient’s Writing Style

Inherent Power Sanction of Summary Judgment for Declining to Pay Attorney’s Fees Ordered as a Prerequisite to the Party’s Supplementing Its Claims (a Requirement of a Local Rule of Court) Reversed — Bad Faith Violation of Local Rule Essential

Experts / Daubert — The Abuse of Discretion Standard Applies as Much to the Trial Court’s Decisions about How to Determine Reliability as to Its Ultimate Conclusion

Judicial Recusal — May Judges Recuse Themselves from Part of a Case But Not All of It under § 455? — Circuit Split — Sixth Circuit Adopts Majority Rule that Partial Recusal Is Permissible

Email / Text Admissibility — Texts Properly Admitted for Impeachment Purposes Only, Pursuant to Rule 613(a)

Hearsay Problems Proving Legislative Intent through Newspaper Articles — Limited Utility of Residual Exception (Rule 807) — Alternate Proof

Spoliation — Sanctions, Adverse Inference Instruction Denied — Variety of Other Curative Measures Imposed (Illustrative of What Proposed Rule 37(e) Might Contemplate)

Recent Posts

RICO: Indirect Injury Unrecoverable — Indirect Purchaser Rule Imported from Antitrust

RICO: No Causation Where Harm Flowed Several Steps After the Fraudulent Acts — RICO Causation Same As Antitrust Causation

Sanctions vs. Automatic Stay: Imposition of Sanctions (Here, Inherent Power Sanctions) Is Subject to the Police Power Exception to the Automatic Stay in Bankruptcy

The Word “Include” May Be A Word of Limitation As Opposed to a Word of Enlargement, Depending on the Context

Spoliation/Sanctions: “A Party Does Not Spoliate Evidence When, Without Notice Of The Evidence’s Potential Relevance, It Destroys The Evidence According To Its Policy Or In The Normal Course Of Its Business” (Good Quote)

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