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Dire Consequences: Avoiding Waiver in Pennsylvania Jury Selection

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Practicing law at a socially appropriate distance has forced many litigators to broadly consider the value of face-to-face interaction—and what may be lost in its absence.  A recent Pennsylvania Supreme Court opinion highlights the importance of face-to-face interaction between a trial court judge and prospective jurors during voir dire.  It also unfolds a cautionary tale about waiver for counsel who would challenge a prospective juror based on actual bias.

In Trigg v. Children’s Hospital of Pittsburgh of UPMC, 2020 WL 1932639 (Pa. Apr. 22, 2020), the Court found a medical malpractice plaintiff waived her objection to the procedure by which the trial court had evaluated an objection to a juror’s actual bias.  The plaintiff challenged the juror for cause at trial, but argued for the first time in post-trial motions that the judge did not have the chance to observe the person’s “demeanor” because jury selection was overseen by the court clerk, with the challenge evaluated by the judge based only on the transcript record.

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Rejection of Improper “Attorneys’ Eyes Only” Disclosure Process Relating to Attorney-Client Privilege Challenges

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The attorney-client privilege is one of “the most revered” privileges established to protect certain communications. The Pennsylvania Superior Court recently held that it was improper for a trial court to order the disclosure of information, which a party claimed was privileged work product, on an “attorneys’ eyes only” basis to counsel for the opposing party.

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Preparing for the COVID-19 Immunity Preemption Defense

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As manufacturers of vaccines, pharmaceutical medicines, ventilators and respirators engage substantial resources and ramp up production to help fight COVID-19, many have presumably done so under the immunity protections afforded by the federal Public Readiness and Emergency Preparedness Act (the PREP Act codified at 42 USC §247d-6d), and Coronavirus Aid, Relief, and Economic Security Act (the CARES Act). Because of industry-wide uncertainty surrounding PREP Act immunity and the need for immediate and urgent action on the part of manufacturers, the U.S. Department of Health and Human Services (HHS) recently issued a non-binding Advisory Opinion explaining the scope of PREP Act coverage, its immunity provisions in the context of COVID-19 countermeasures, and informal guidance on the preemptive effect of the federal law.

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A Warranty Claim by Any Other Name Remains a Warranty Claim – Illinois Federal Court Dismisses Claims Against Aloe Vera Retailer

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An Illinois federal court recently reinforced the distinction between a properly plead consumer fraud claim and an express warranty claim merely masquerading as a consumer fraud claim, while granting a defendant’s motion to dismiss.

In Parrott v. Family Dollar, Inc.the plaintiff alleged breach of warranty and consumer fraud claims against Family Dollar, Inc. regarding its aloe vera product. The Hon. Jorge L. Alonso of the Northern District of Illinois unmasked plaintiff’s consumer fraud claim as nothing more than a breach of warranty claim by another name, and subsequently granted defendant’s motion to dismiss.

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Claims That Manufacturers of IV Saline Solution Caused Public Health Crisis Twice Dismissed as Insufficiently Plead by Illinois Federal Court

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“In the age of COVID-19 and other public health challenges, supply levels in the medical industry occupy a prominent place in our national consciousness,” an Illinois federal judge noted earlier this month while dismissing a proposed class action against manufacturers of intravenous (IV) saline solution. This marked the second dismissal of the proposed class action because the plaintiffs failed to sufficiently back up antitrust allegations that the defendants conspired to manipulate the supply of the product.

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Coincidentally Timely – New Jersey Appellate Division’s New Guidance Permitting Remote Testimony at Trial

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Over the past two months, the practice of law has shifted to rely heavily on the use of technology. Communication internally, with clients and with the court is almost exclusively conducted via telephone or videoconference. But the New Jersey Court Rules do not provide clear guidance on the use of video testimony at trial — it is not expressly permitted nor is it expressly prohibited, leaving a gap in interpretation and application. Recently in Pathri v. Kakarlamath, A-4657-18T1 (App. Div. Jan. 23, 2020), the New Jersey Appellate Division picked the perfect time to get “plucky and adventury” and considered a party’s request to testify by video. The opinion clarifies that video testimony is acceptable during trial if warranted by exigent circumstances, and sets forth seven factors for courts to consider. Decided only weeks before the state underwent lockdown due to COVID-19, the court’s analysis is timely to say the least.

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