Category: Civil Procedure

Eastern District of Pennsylvania Issues Lone Pine Order in Zostavax MDL

Share

Multidistrict litigation is often criticized for enabling plaintiffs to file meritless cases and then hide in large inventories, hoping to be swept up in a settlement (whether global or otherwise) before the case is meaningfully probed through discovery.  Traditional tools such as plaintiff profile sheets and early screening orders represent a partial solution, as they can help identify cases with more obvious flaws such as those that are clearly time-barred or lack proof of product use.  But some issues, such as critical gaps in causation, are beyond the reach of the limited case-specific discovery permitted for most cases in an MDL.  Enter the Lone Pine order, a case management order by which a court requires all plaintiffs to produce evidence establishing specific elements of their claim.

Continue reading “Eastern District of Pennsylvania Issues Lone Pine Order in Zostavax MDL”

It’s an MDL World: The JPML issues its first orders of the year, creating two new MDLs

Share

Centralization of claims in multidistrict litigation has become the new normal—so much so, that MDL proceedings now comprise more than 50 percent of the federal civil caseload. But has MDL practice in the United States peaked? Only time will tell. While the total number of MDL cases remains high (424,720 cases as of mid-February), the vast majority of these cases are concentrated in just a few of the more crowded MDL dockets. And as the annual MDL statistics in recent years show, the total number of new MDL petitions submitted, and granted, has been in decline. In 2021, for example, the Judicial Panel on Multidistrict Litigation received 33 total MDL petitions, granting only 19—compared with 44 petitions (26 granted) the year before.

Continue reading “It’s an MDL World: The JPML issues its first orders of the year, creating two new MDLs”

Eastern District of Virginia Denies Motion to Certify Class, Sheds Light on Rule 23(b)(3) Predominance and Superiority Requirements for Class Actions

Share

The U.S. District Court for the Eastern District of Virginia analyzed Federal Rule of Civil Procedure 23(b)(3)’s predominance and superiority requirements for class actions in a recent decision denying a motion to certify a purported class of motor vehicle purchasers.  The decision underscores that plaintiffs seeking to certify classes asserting claims that will render the process of identifying class members to be a mere series of individualized inquiries will not pass muster under Rule 23.

The Facts in Dispute

Garcia, et al. v. Volkswagen Group of America, Inc., et al. involved a purported class of plaintiffs residing in multiple states who purchased vehicles manufactured by defendants within the last 14 years.  The plaintiffs sued a group of auto manufacturers alleging damages resulting from defendants’ alleged fraudulent misrepresentations about the vehicles, and asserting claims for violations of the Federal Odometer Act, fraud, breach of contract, and unjust enrichment, in addition to state law claims under the laws of California, Colorado, Florida, Illinois, New Jersey, and Washington.

Continue reading “Eastern District of Virginia Denies Motion to Certify Class, Sheds Light on Rule 23(b)(3) Predominance and Superiority Requirements for Class Actions”

Improper Texting During Remote Testimony Can Result in Significant Consequences to Litigants and Lawyers

Share

For many litigators, sworn testimony today looks much different than it did two years ago. As the COVID-19 pandemic has required parties to limit travel and in-person proceedings, remote testimony for depositions, arbitrations and even trials has become the rule rather than the exception. With this transition, litigators have been confronted with unique circumstances and felt compelled to ask questions to confirm that the witness’s testimony is that of the witness, and only the witness. For example, is anyone else present in the room with the witness? Does the witness have any unauthorized lines of communication that could be used while the sworn testimony is proceeding? It has now become critical to ask a witness to swear under oath that there is no one else in the room with the witness and that no person is authorized to communicate with the witness during her or his testimony. Several recent decisions solidify this practice point and illustrate the consequences to litigants and lawyers when a witness surreptitiously communicates with others during the course of remote testimony.

Continue reading “Improper Texting During Remote Testimony Can Result in Significant Consequences to Litigants and Lawyers”

Florida Rule Change Permits Immediate Appeals on Punitive Damages

Share

The Florida Supreme Court has accepted a proposed rule amendment to permit interlocutory appeals of court orders on punitive damages claims. On January 6, 2022, the Florida Supreme Court approved by 6-1 an amendment to Florida Rule of Appellate Procedure 9.130 to allow interlocutory appeals of nonfinal orders granting or denying leave to amend a complaint to assert a claim for punitive damages. Prior to this amendment, a party could only appeal such an order by petitioning for a writ of certiorari. And in that posture, the appellate court’s review was limited only to whether the trial court complied with the procedural requirements for making such a claim.

Practically, this means Florida appellate courts will be able to immediately review trial court orders regarding punitive damages claims on both procedural and substantive grounds. With this amendment, the merits of a plaintiff’s punitive damages claim can now be appealed prior to any discovery of a defendant’s financial information. The new rule takes effect April 1, 2022.

Continue reading “Florida Rule Change Permits Immediate Appeals on Punitive Damages”

LG Chem Secures a Second Look at Jurisdictional Issues in NJ Vape Battery Suit

Share

The New Jersey Appellate Division has held that Korean company LG Chem Ltd. (“LG Chem”)will have another opportunity to dispute New Jersey’s jurisdiction over it in a product liability lawsuit concerning a vaping device battery.  The decision is based, in part, on the trial court’s failure to order jurisdictional discovery and convene an evidentiary hearing to resolve the disputed jurisdictional allegations before deciding LG Chem’s pre-answer motion to dismiss.  This case underscores that in New Jersey, the standard governing motions to dismiss for lack of jurisdiction, unlike other bases, requires the court to look outside the disputed pleadings alone.

The New Jersey plaintiff alleged he was injured when a lithium-ion battery manufactured by LG Chem exploded in his pocket.  Plaintiff attempted to serve process on LG Chem through two of its U.S.-based subsidiaries, LG Chem America, Inc. (LGCAI) and LG Chem Michigan, Inc. (LGCMI).  The agents of both refused to accept service.

Continue reading “LG Chem Secures a Second Look at Jurisdictional Issues in NJ Vape Battery Suit”