Complex Lit Blog

Insufficiently Detailed 26(a)(2)(C) Expert Disclosures

Sapienza v. U.S. Dep’t of Veterans Affairs, 2012 U.S. Dist. LEXIS 75928 (E.D.N.Y. May 31, 2012): The defendant ... argues that even if the doctors are permitted to provide expert testimony without providing a report under 26(a)(2)(B), the summary that the plaintiff provided under Rule 26(a)(2)(C) is insufficient. Specifically, the def ...

Sapienza v. U.S. Dep’t of Veterans Affairs, 2012 U.S. Dist. LEXIS 75928 (E.D.N.Y. May 31, 2012): The defendant … argues that even if the doctors are permitted to provide expert testimony without providing a report under 26(a)(2)(B), the summary that…

Inherent Power Sanction in Interest of “Fairness” Unsustainable Absent Finding of Bad Faith

Tucker v. Williams, 2012 U.S. App. LEXIS 11262 (7th Cir. June 5, 2012): After investigating a report that Kendall Tucker was in possession of a stolen backhoe, Karl Williams, a state law enforcement investigator, seized the backhoe without a warrant. Tucker brought a civil rights action in district court, claiming that his rights under ...

Should Evidentiary Rulings Be Reviewed De Novo or for Abuse of Discretion? Various Circuit Splits, Focusing on, But Not Limited to, Rule 404(b) Rulings

United States v. Clay, 2012 U.S. App. LEXIS 7873 (6th Cir. April 19, 2012) (Kethledge, J., dissenting): This case presents two significant and recurring issues on which our court has express intra-circuit conflicts. The first issue — on which there is also an inter-circuit split — concerns our standard of review with respect to ...

Red Flags Militating Against Introduction of Expert Evidence

Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521 (6th Cir. 2012): Red flags that caution against certifying an expert include reliance on anecdotal evidence, improper extrapolation, failure to consider other possible causes, lack of testing, and subjectivity. Best v. Lowe's Home Ctrs., Inc., 563 F.3d 171, 177 (6th Cir. 2 ...

Earliest Case Rule: When Faced with Intra-Circuit Split, Court Should Look to the Line of Authority Containing Earliest Decision Because Later Panel Cannot Overturn Earlier Panel

Centeno v. NCL (Bahamas) Ltd., 2012 U.S. Dist. LEXIS 39741 (S.D. Fla. Mar. 21, 2012): Although Lindo rejects Thomas, it rejects Thomas saying it is inconsistent with a prior decision, Bautista. "When faced with an intra-circuit split we must apply the 'earliest case' rule, meaning 'when circuit authority is in conflict, a panel shoul ...

Centeno v. NCL (Bahamas) Ltd., 2012 U.S. Dist. LEXIS 39741 (S.D. Fla. Mar. 21, 2012): Although Lindo rejects Thomas, it rejects Thomas saying it is inconsistent with a prior decision, Bautista. “When faced with an intra-circuit split we must apply…

Circuit Split as to Whether Government or Plaintiff Bears Burden of Proving Applicability/Inapplicability of Discretionary Function Exception in Federal Tort Claims Act Case

Timmerman v. United States, 2012 U.S. Dist. LEXIS 78651 (D. P.R. June 5, 2012): The FTCA provides a "carefully limited waiver" of the federal government's sovereign immunity for certain claims alleging harm caused by United States employees or agents. Carroll v. U.S., 661 F.3d 87, 93 (1st Cir. 2011)(citing Bolduc v. United States, 402 F ...

Timmerman v. United States, 2012 U.S. Dist. LEXIS 78651 (D. P.R. June 5, 2012): The FTCA provides a “carefully limited waiver” of the federal government’s sovereign immunity for certain claims alleging harm caused by United States employees or agents. Carroll…

Jury Can’t Rely on Wikipedia But Circuit Does — Jury Verdict Overturned Due to Juror’s Consultation of Wikipedia During Deliberations in Direct Violation of Instruction — Reliability Questioned

United States v. Lawson, 677 F.3d 629 (4th Cir. 2012) (overturning a criminal conviction because a juror consulted Wikipedia for a definition of “sponsor”): Six days after the jury returned its verdict finding Lawson guilty on all charges, one of the jurors, Juror 1, informed a courtroom security officer of potential juror miscondu ...

Inherent Power Sanctions Imposed on Sophisticated Party for Court Papers Groundlessly Opposing Arbitration — Bad Faith Shown by Redacting Key Contractual Language from Quotation to Court

Amaprop Ltd. v Indiabulls Fin’l Servs. Ltd., 2012 U.S. App. LEXIS 10586 (2d Cir. May 25, 2012): Respondent-Appellant Indiabulls Financial Services Limited ("IFSL"), an Indian corporation, appeals from an award of attorney's fees granted by the district court as a sanction for IFSL's bad-faith efforts to avoid arbitration with Amaprop ...

Amaprop Ltd. v Indiabulls Fin’l Servs. Ltd., 2012 U.S. App. LEXIS 10586 (2d Cir. May 25, 2012): Respondent-Appellant Indiabulls Financial Services Limited (“IFSL”), an Indian corporation, appeals from an award of attorney’s fees granted by the district court as a…

Law of the Case Doctrine Does Not Bar Trial Judge from Reconsidering Expert Rulings that Were Not Addressed on Interim Appeal — Limits on Applicability of Law of the Case Doctrine

Oliver v. Orange Cnty., Fla., 456 Fed. Appx. 815 (11th Cir. 2012): "Under the law of the case doctrine, both the district court and the appellate court are generally bound by a prior appellate decision of the same case. The law of the case doctrine, however, bars consideration of only those legal issues that were actually, or by n ...

Oliver v. Orange Cnty., Fla., 456 Fed. Appx. 815 (11th Cir. 2012): “Under the law of the case doctrine, both the district court and the appellate court are generally bound by a prior appellate decision of the same case. The…

Rule 26(b)(4)(B) — Exceptional Circumstances Required to Depose Non-Testifying Expert Who Was Previously Designated as Testifying Expert — Caselaw Split

Decena v. Am. Int’l Cos., 2012 U.S. Dist. LEXIS 61303 (E.D. La. May 1, 2012): [T]he Court ordered Plaintiff to submit to an independent medical examination ("IME"), to be conducted by Defendants' designated expert, Dr. Avanelle Jack, on March 13, 2012. During the IME, Plaintiff reportedly experienced kidney failure, prompting Dr. ...

Decena v. Am. Int’l Cos., 2012 U.S. Dist. LEXIS 61303 (E.D. La. May 1, 2012): [T]he Court ordered Plaintiff to submit to an independent medical examination (“IME”), to be conducted by Defendants’ designated expert, Dr. Avanelle Jack, on March 13,…

Commercial Litigation and Arbitration

Insufficiently Detailed 26(a)(2)(C) Expert Disclosures

Inherent Power Sanction in Interest of “Fairness” Unsustainable Absent Finding of Bad Faith

Should Evidentiary Rulings Be Reviewed De Novo or for Abuse of Discretion? Various Circuit Splits, Focusing on, But Not Limited to, Rule 404(b) Rulings

Red Flags Militating Against Introduction of Expert Evidence

Earliest Case Rule: When Faced with Intra-Circuit Split, Court Should Look to the Line of Authority Containing Earliest Decision Because Later Panel Cannot Overturn Earlier Panel

Circuit Split as to Whether Government or Plaintiff Bears Burden of Proving Applicability/Inapplicability of Discretionary Function Exception in Federal Tort Claims Act Case

Jury Can’t Rely on Wikipedia But Circuit Does — Jury Verdict Overturned Due to Juror’s Consultation of Wikipedia During Deliberations in Direct Violation of Instruction — Reliability Questioned

Inherent Power Sanctions Imposed on Sophisticated Party for Court Papers Groundlessly Opposing Arbitration — Bad Faith Shown by Redacting Key Contractual Language from Quotation to Court

Law of the Case Doctrine Does Not Bar Trial Judge from Reconsidering Expert Rulings that Were Not Addressed on Interim Appeal — Limits on Applicability of Law of the Case Doctrine

Rule 26(b)(4)(B) — Exceptional Circumstances Required to Depose Non-Testifying Expert Who Was Previously Designated as Testifying Expert — Caselaw Split

Recent Posts

Practice of Seeking Leave to Amend after The Case Is Dismissed Is Discouraged

RICO: Release Executed After Alleged RICO Violations Extinguishes RICO Claim — Eighth Circuit Declines to Address Enforceability of A Release “That Is An Integral Part of An Alleged RICO Scheme Or That Immunizes Future RICO Conduct

Pleading — “Civil pleadings are supposed to mark the boundaries for discovery; discovery is not supposed to substitute for definite pleading” (Good Quote) — Shotgun Pleadings (11th Circuit): Four Categories/Types

Rule 37(c)(1) Exclusion of Untimely Expert Report: Failure to Argue Harmlessness Essentially Waives Issue

Rule 37(b) Sanctions — Exclusion of Supplemental Expert Report for Advancing New Opinions — Third Circuit Exclusion Factors — “Importance of Excluded Evidence:” If, As Proponent Argues, There Is Nothing New, Then Exclusion Doesn’t Harm Proponent; If There Is, It Harms Opponent

RICO Pleading: Generic Allegations of Fraud (Failing Even to Set Forth Any False Representation) And Extortion (Failing to Describe Actual Threats) Too Conclusory to State a Claim

RICO Pleading: Statutory Directive That RICO Be Liberally Construed Does Not Extend to More Liberal Pleading Requirements

FRAP 38 Sanctions Imposed Due to the “Striking Legal Emptiness” of Brief/Appeal, “A Legal Nothingburger” — Bad Faith Not Required: An Appeal “May Also Be Frivolous If It Is Filed Out Of Sheer Obstinacy” (Good Quotes)

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