“Deposition Distancing”: Practical Considerations for Taking Remote Depositions

The COVID-19 pandemic continues to keep many lawyers, clients and witnesses at home. As we discussed in a previous post, many courts are encouraging or requiring remote depositions, typically by videoconference, to keep discovery moving. Lawyers taking these depositions will have to do all of the things they usually do and more to deal with the challenges of a deposition environment unfamiliar to many of us.

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Northern District of California Excludes Expert Testimony and Grants Summary Judgment in Abilify Case

Applying basic scientific principles to exclude an expert’s unfounded and unsupported opinions, the U.S. District Court for the Northern District of California has granted summary judgment to the maker of the antipsychotic medication Abilify on the plaintiff’s failure to warn and negligent design defect claims. Rodman v. Otsuka America Pharmaceutical, Inc., 2020 WL 2525032 (N.D. Cal. May 18, 2020).

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Sweet Escape: Tootsie Roll Label Changes Stop Plaintiff’s Slack-Fill Case Without Triggering Catalyst Fee Award

The Ninth Circuit recently rejected a plaintiff’s request for attorneys’ fees under the so-called catalyst theory where the changes the defendant made in an effort to effectively moot the case were different from the changes the plaintiff had demanded in the litigation. The decision illustrates that a creative fix to an alleged issue may deter a plaintiff’s counsel from pursuing the case without entitling them to a fee award under the catalyst theory.

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The Daubert Toolbox: Revisiting and Appreciating Joiner, the Middle Child

In the “Daubert trilogy,” Rule 702 spawned three children, all special in their own way. The firstborn, Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), naturally receives most of the attention, being the pioneer. The middle child, General Elec. Co. v. Joiner, 522 U.S. 136 (1997), tends to be comparatively underappreciated in the shadow of its predecessor. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), the youngest, generally receives the least attention.

Daubert’s broad pronouncements about gatekeeping principles dominate the Rule 702 landscape. No one calls a motion to exclude a “Joiner motion”; no one participates in a “Kumho hearing.” But in the broad wake of Daubert, Joiner played a particularly important and multifaceted role in shaping the ongoing development of Rule 702 jurisprudence. Its influence is worth revisiting.

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Vermont Federal Court Orders Ben & Jerry’s “Happy Cows” Lawsuit Out to Pasture

A Vermont federal court dismissed a lawsuit alleging consumer fraud, breach of warranty, and unjust enrichment against Ben & Jerry’s because representations about its dairy from “happy cows” did not run afoul of the law. But the court granted the plaintiff twenty days to amend.

In Ehlers v. Ben & Jerry’s Homemade Inc., et al., Civil Action No. 2:19-cv-00194, a Vermont plaintiff sued defendants Conopco, Inc. d/b/a Unilever United States (Unilever) and its subsidiary Ben & Jerry’s Homemade Inc. (Ben & Jerry’s) on behalf of a proposed class seeking compensatory damages and injunctive relief. The plaintiff alleged that statements on Ben & Jerry’s ice cream cartons and website were materially misleading in violation of the Vermont Consumer Protection Act (VCPA) and constituted breach of an express warranty. The plaintiff also asserted a claim for unjust enrichment.

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Deposition Distancing? As Courts Urge Litigants to Continue Discovery with Remote Depositions, Litigants Must Consider Whether, and When, to Fight Them

The COVID-19 pandemic has closed courthouses from coast to coast for all but essential proceedings. Most civil trials and hearings are on hold. Some courts are encouraging, and in some cases ordering, the continuation of discovery — including depositions using video or audio conferencing. Others have extended discovery schedules to await easing of pandemic restrictions. This post examines the different approaches courts are taking and the arguments litigants might make — or respond to — about whether to proceed with remote depositions. In a second post, we’ll discuss practical considerations for lawyers who choose to — or are ordered to — proceed with remote depositions.

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