Subject: California

Whither Roberti? The Cockroach Precedent − An Exercise in Magical, Wishful Thinking

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Amateur philosophers, bar flies, and eulogists, among others, are known to wistfully observe that nothing dies so long as it is remembered and discussed. That’s a comforting sentiment when it comes to loved ones and legacies, but it can be mischievous and bothersome when applied to fallen case law. The long, drawn-out demise of Roberti v. Andy’s Termite & Pest Control. Inc., 113 Cal.App.4th 893 (2003) is a case in point, so to speak.

Pre-Roberti Expert Admissibility Standards – The Kelly/Frye Rule and a Suggestion of Daubert

Roberti is part of a much longer story about California’s journey to adoption of Daubert-style reliability gatekeeping for the testimony of expert witnesses.

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Keeping Summary Judgment Strong

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In this age of exorbitant costs and increasingly high stakes in civil litigation, a robust summary judgment mechanism – one capable of terminating cases lacking in merit long before the extraordinary expense of final trial preparation and trial – is simply critical to a properly functioning civil litigation system.

Recently, Division 8 of the Second Appellate District, California Court of Appeal did its part by contributing to several ongoing debates in California law related to the admissibility of expert declarations offered to oppose motions for summary judgment. Fernandez v. Alexander, 2019 WL 336517 (Jan. 28, 2019)(certified for publication). The court weighed in, at least implicitly, on these important issues:

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The Early Bird Avoids the Class Action: Recent California Decision Reminds That Winning Summary Judgment Can Be the Ultimate Preemptive Tactic for Beating Class Certification

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Defendants faced with putative wide-reaching class action litigation are equipped with a variety of strategies for defeating class certification.  One potential silver bullet, however, expires early, and defendants must deploy it even before a class certification motion is filed in order to wield it effectively.  The United States District Court for the Central District of California’s recent decision granting summary judgment to Unilever United States, Inc. in a would-be class action concerning its St. Ives Apricot facial scrub underscores this strategy for (successfully) defeating class certification: Win the case on summary judgment first.

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California Confronts the High Liability Costs of Scientific Uncertainty

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Much has been said about the eye-popping verdict and the post-trial rulings in the Roundup case tried in San Francisco earlier this year. Johnson v. Monsanto Co., 2018 WL 5246323 (S.F. Super. Ct. Oct. 22, 2018). The court sustained the jury’s award of ~$39 million in compensatory damages, including $37 million in non-economic damages, and its finding that Monsanto was liable for punitive damages. The court reduced the punitive award on due process grounds to a one-to-one ratio, slashing it from $250 million to approximately $39 million. Monsanto recently filed its notice of appeal, and as we await the briefing and argument, a few issues and takeaways merit further discussion, particularly several disturbing issues surrounding the award of punitive damages. We will save for another day (or post) other significant liability and damages issues.

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§ 510(k) Safety and Effectiveness – A Changing Landscape for Punitive Damages?

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The Central District of California recently issued an opinion that breathes new life into the argument that the § 510(k) substantial equivalence process for Class II medical devices involves an FDA finding of safety and effectiveness. It is part of a trend of recent federal cases giving credence to the § 510(k) process, which could have significant implications for punitive damages claims brought against manufacturers of Class II devices.

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The California Supreme Court Addresses the Admissibility of Industry Custom and Practice Evidence In a Design Defect Case and Holds That … It Depends

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In Kim v. Toyota Motor Corp., No. S232754 (August 27, 2018) the California Supreme Court broke with 40+ years of intermediate court of appeal precedents barring manufacturers from using evidence of their compliance with industry custom and practice to prove their design was not defective.  Rather, the Court held, such evidence is no longer categorically inadmissible, but neither is it categorically admissible.  Admissibility depends on the nature of the evidence and the purpose for which it is offered.

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