Firm News Feed Jul 2018 00:00:00 -0800firmwise Supreme Court Hears Argument on Daubert Standard<p>On March 6, 2018, the Supreme Court of Florida heard argument in a case that presents the Court with an opportunity to resolve whether <i>Frye</i> or <i>Daubert</i> will be the governing standard for admission of expert testimony going forward in Florida state courts. <i>DeLisle v. Crane Co., et al.</i>, No. SC16-2182. In this closely watched case, the Plaintiff challenges the constitutionality of 2013 legislative changes to the Florida Evidence Code that dropped the older <i>Frye</i> standard in favor of the more rigorous <i>Daubert</i> standard for admissibility of expert testimony.</p> <p>There has been considerable uncertainty in the lower courts as to the proper standard for expert testimony following the Supreme Court&rsquo;s rules decision that declined to adopt the 2013 <i>Daubert </i>Amendment, to the extent it is procedural. <i>In Re: Amendments to the Florida Evidence Code</i>, No. SC16-181, February 16, 2017. While that rules decision did not pass on the constitutionality of the <i>Daubert </i>Amendment, it raised uncertainty about the viability of <i>Daubert </i>in Florida and the potential that the Court would ultimately rule the statute invalid when presented with a proper case and controversy in which to address the issue. The Supreme Court voted four to three to accept discretionary-review jurisdiction in <i>DeLisle </i>in July 2017, giving the Court its first opportunity to directly consider the constitutionality of the <i>Daubert </i>Amendment. (For additional background, <i>see</i> <a href=";an=72551&amp;format=xml&amp;p=5085">Florida Supreme Court to Rule on Constitutionality of Daubert Standard</a>; <a href=";an=63741&amp;format=xml&amp;p=5085">Daubert Under the Microscope Again by Florida Courts</a>.)</p> <p>The first several minutes of the oral argument focused on whether the Court has jurisdiction in this case to rule on the constitutionality of the <i>Daubert </i>Amendment. Justices Canady and Lawson, who dissented from the Court&rsquo;s July 2017 decision to accept discretionary-review jurisdiction, sharply questioned the Plaintiff on this point, and disputed his position that the Fourth District Court of Appeal had ruled on the constitutionality of the <i>Daubert</i> Amendment by applying the 2013 statute. James Ferraro, arguing for the Plaintiff, maintained that the Court properly accepted conflict jurisdiction because the Fourth District&rsquo;s application of <i>Daubert</i> conflicted with earlier Supreme Court decisions pre-dating the enactment of the <i>Daubert </i>Amendment, which adhered to the <i>Frye </i>standard. However, he was unable to identify a district court of appeal decision refusing to apply the <i>Daubert </i>Amendment, in conflict with the Fourth District&rsquo;s decision below. In general, conflict jurisdiction requires an express and direct conflict with a decision of another district court of appeal or the Supreme Court on the same question of law.</p> <p>The parties&rsquo; arguments also addressed whether the Plaintiff&rsquo;s experts would have been excluded even under the <i>Frye</i> standard&mdash;an alternative basis for the Fourth District Court of Appeal&rsquo;s ruling. The Defendants argued that the Fourth District correctly concluded that the Plaintiff&rsquo;s experts should have been excluded under either <i>Frye </i>or <i>Daubert</i>. Justices Pariente and Quince expressed skepticism of this position and questioned why the testimony would not have been sufficient for the jury to hear and evaluate under <i>Frye</i>.</p> <p>Elliot Scherker, arguing for Defendant R.J. Reynolds, downplayed the differences between <i>Daubert</i> and <i>Frye</i>, stating that the first part of the <i>Daubert</i> test is the <i>Frye</i> &ldquo;general acceptance&rdquo; standard. Mr. Scherker referred to an &ldquo;exceedingly thin&rdquo; line between the two standards, both of which aim to keep junk science out of the courtroom, and argued that the expert testimony excluded by the Fourth District is junk science under any definition.<a href="file:///C:/Users/Stefanie/Downloads/Florida%20Supreme%20Court%20Hears%20Argument%20on%20Daubert%20Standard.DOCX#_ftn1" name="_ftnref1" title="">[1]</a> Richard Doran, arguing for Defendant Crane Co., also urged that the outcome in this case would be the same under either <i>Daubert </i>or <i>Frye</i>, and that it was unnecessary for the Court to reach the constitutional issue in this case. During the Plaintiff&rsquo;s rebuttal argument, Justice Lewis, who was in the majority that voted to accept discretionary-review jurisdiction in the case, pressed Mr. Ferraro on this point. He asked the Plaintiff for the scientific basis for the excluded testimony that would make it admissible under <i>Frye</i> and noted that it may not be necessary for the Court to reach the constitutional issue if the Defendants would prevail even under <i>Frye</i>.</p> <p>Finally, the parties addressed the central issue to determining the constitutionality of the <i>Daubert </i>Amendment&mdash;whether it is substantive or procedural in nature. Plaintiff reiterated the argument made in his brief that the <i>Daubert</i> Amendment is procedural (<i>i.e.</i>, not impacting rights, obligations, causes of actions, etc.), and that the Florida Legislature overstepped its bounds and enacted an unconstitutional law on a matter solely within the province of the Court.</p> <p>Justice Pariente noted that the <i>Daubert </i>Amendment has been deemed procedural for purposes of retroactive application, and asked Defendant R.J. Reynolds how the same statute could then be deemed substantive for purposes of separation of powers. Mr. Scherker responded that, under Florida precedent, whether a statute is substantive or procedural depends on the context in which the issue is raised, and that it cannot be the case that a statute deemed procedural for purposes of retroactivity is automatically also deemed an unconstitutional violation of separation of powers. Mr. Scherker argued that section 90.702 of the Florida Evidence Code, which sets out the standard for admission of expert testimony, has been substantive in part and procedural in part since its adoption in 1976 and in its current form as amended in 2013. He urged that the 2013 amendment to the statute is substantive, and therefore constitutional, because it changed the standard for evaluating what constitutes &ldquo;junk science&rdquo; that should be excluded.</p> <p>Three of the justices expressed concern about the impact of <i>Daubert </i>on litigants and the court system. Justice Quince asked the Plaintiff about the impact of increased hearings on motions to exclude experts under <i>Daubert</i>, which the Plaintiff argued were overburdening the court system. Justice Pariente asked the Defendants whether the <i>Daubert </i>standard tends to usurp the jury&rsquo;s role as trier of fact in evaluating expert testimony. Justices Pariente and Lewis also questioned the Defendants about the practical implications of <i>Daubert</i> for plaintiffs attempting to prove that their injury was caused by exposure to a defendant&rsquo;s toxic substance over a period of several years through several different products. The Plaintiff here contracted mesothelioma after long-term exposure to asbestos from several different products. Justice Lewis noted that there are not going to be human experiments in such cases to support causation, and questioned if there is an unreasonable burden on plaintiffs to quantify their exposure.</p> <p>The Court did not hear argument from any of the several <i>amici curiae</i> that filed briefs in the case. The Attorney General for the State of Florida filed a brief in support of the Defendants, and had requested leave to participate in oral argument, which was denied.</p> <p>The Supreme Court is anticipated to issue its decision in the coming months, which promises to resolve the current uncertainty about the continued viability of <i>Daubert </i>in Florida. If the Justices remain consistent with their positions in the February 2017 rules decision, which declined to adopt <i>Daubert</i> to the extent it is procedural, and their decision to accept discretionary-review jurisdiction in <i>DeLisle</i>, it is anticipated that Justices Labarga, Pariente, Lewis, and Quince will form a majority to reject the <i>Daubert</i> standard. As highlighted in the oral argument in <i>DeLisle</i>, there remains a possibility that the Court will rule on other grounds (<i>e.g.</i>, affirming on the basis that the Defendants would prevail even under <i>Frye</i>) and delay resolution of whether <i>Daubert</i> or <i>Frye</i> will be the standard in Florida going forward.</p> Until the issue is resolved, litigants are well advised to seek rulings on the admissibility of expert testimony under both <i>Daubert </i>and <i>Frye</i>. Some trial judges in fact are requiring that any hearings on motions to exclude expert testimony proceed under both standards. This approach will help preserve issues for appeal and guard against the possibility of having to re-litigate these matters once there is a definitive ruling from the Supreme Court on the standard for the admissibility of expert testimony going forward. <div><br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p><a href="file:///C:/Users/Stefanie/Downloads/Florida%20Supreme%20Court%20Hears%20Argument%20on%20Daubert%20Standard.DOCX#_ftnref1" name="_ftn1" title="">[1]</a> Most litigants and attorneys would likely disagree that there is only minimal difference between <i>Daubert </i>and <i>Frye</i>. However, from R.J. Reynolds&rsquo; perspective in the context of this asbestos exposure case, there may not be a significant difference between the two standards.</p> </div> </div>Products Liability Blog14 Mar 2018 00:00:00 -0800 Supreme Court to Rule on Constitutionality of Daubert Standard<p><span style="color: rgb(255, 0, 0);">January 10, 2018 UPDATE:&nbsp; The Supreme Court of Florida has scheduled oral argument in the case for March 6, 2018, at 9:00 a.m<br /> </span><br /> <br /> The Supreme Court of Florida is poised to decide the constitutionality of the <i>Daubert</i> standard for admissibility of expert testimony, resolving whether <i>Frye</i> or <i>Daubert</i> will be the governing standard going forward in Florida state courts. <i>DeLisle v. Crane Co., et al.</i>, No. SC16-2182. The appeal challenges the constitutionality of 2013 legislative changes to the Florida Evidence Code that dropped the older <i>Frye</i> standard in favor of the more rigorous <i>Daubert</i> standard for admissibility of expert testimony. The State of Florida and several other <i>amici curiae </i>have filed briefs weighing in on both sides of the debate, highlighting the wide-reaching impact of the issue before the Court.</p> <p>The plaintiff in <i>DeLisle</i> brought product liability claims against tobacco companies and others alleging that he developed mesothelioma as a result of exposure to the defendants&rsquo; asbestos-containing products. The jury rendered an $8 million verdict in favor of the plaintiff, which the defendants appealed. The Fourth District Court of Appeal held that plaintiff&rsquo;s causation experts should have been excluded pursuant to <i>Daubert</i>, ordering a directed verdict in favor of one defendant and a new trial for a second defendant.</p> <p>Plaintiff successfully petitioned the Supreme Court to accept discretionary review of the case. He argues that the Fourth District&rsquo;s decision should be reversed because the <i>Daubert </i>Amendment violates separation of powers under the Florida Constitution and infringes on the Supreme Court&rsquo;s authority to adopt rules of judicial practice and procedure. The case has attracted the attention of multiple <i>amcius curiae</i> that have been permitted to file briefs. These include the Florida Justice Association and 44 Concerned Physicians, Scientists, and Scholars Regarding Causation of Asbestos-Related Disease (in favor of petitioner), and the State of Florida, Washington Legal Foundation, Florida Defense Lawyers Association, and Florida Justice Reform Institute (in favor of respondents).</p> <p>The Supreme Court&rsquo;s decision to accept jurisdiction in <i>DeLisle </i>provides it with a proper case or controversy to decide the constitutionality of the <i>Daubert </i>Amendment and resolve the uncertainty that followed its recent rules decision in which the Court declined to adopt the <i>Daubert </i>Amendment to the extent it is procedural. <i>In Re: Amendments to the Florida Evidence Code</i>, No. SC16-181, February 16, 2017. That rules decision cited &ldquo;grave constitutional concerns&rdquo; that the <i>Daubert </i>Amendment may undermine litigants&rsquo; access to courts and the right to a jury trial. But the Court did not reach the constitutionality of the amendment or whether it is a substantive or procedural enactment, which it could not do in the context of a rules decision outside of a proper case or controversy. The resulting uncertainty regarding the legitimacy of the <i>Daubert </i>Amendment has created confusion in the lower courts as to the appropriate standard.</p> <p>As argued in the briefing in <i>DeLisle</i>, the procedural versus substantive distinction is central to whether the <i>Daubert </i>Amendment will be upheld. To the extent that the <i>Daubert</i> Amendment is deemed solely procedural in nature (<i>i.e.</i>, not impacting rights, obligations, causes of actions, etc.), the Supreme Court is anticipated to rule that the Florida Legislature overstepped its bounds and enacted an unconstitutional law on a matter solely within the province of the Court. On the other hand, to the extent that the <i>Daubert </i>Amendment is construed to be substantive in nature, it should be upheld as a valid enactment by the Legislature.</p> <p>There is no bright line rule defining whether a statutory provision is procedural or substantive. The petitioner and supporting <i>amici curiae</i> note that rules of evidence are often deemed procedural and argue that the Legislature improperly acted to overrule longstanding Supreme Court precedent adhering to the <i>Frye</i> standard. In his reply brief, the petitioner urges that rules of evidence are presumptively procedural, and that &ldquo;[t]here is not a single, identifiable substantive aspect present or intended in the Florida Evidence Code.&rdquo; On the other side, the respondents and their supporting <i>amici curiae</i> point out that the Supreme Court has previously upheld other statutes governing admissibility of evidence against separation of powers challenges, and that the <i>Daubert</i> Amendment provides litigants a substantive protection against unreliable expert testimony.</p> <p>The State of Florida argues in its <i>amicus curiae </i>brief that the <i>Daubert </i>Amendment does not violate separation of powers, pointing out that the amendment does not arrogate power to the Legislature and in fact empowers the courts with greater discretion in exercising their gatekeeping function regarding expert testimony. The Attorney General also warns that a ruling that the <i>Daubert </i>Amendment is unconstitutional could have widespread negative effects beyond the <i>Daubert</i>/<i>Frye </i>debate. The brief argues that invalidating the <i>Daubert </i>Amendment on separation of powers grounds would cast doubt on numerous other statutes governing admissibility of evidence, outside of the Evidence Code, that have never been formally adopted by the Supreme Court. This could burden the Court with unprecedented rulemaking obligations to address these scattered evidentiary provisions outside of the Evidence Code.</p> <p>The briefs in <i>DeLisle</i> also address the relative merits of <i>Daubert</i> versus <i>Frye</i>, although the question of whether the <i>Daubert </i>standard undermines any substantive constitutional rights of access to courts or the right to a jury trial is not at issue in the current appeal. Instead, the focus in <i>DeLisle </i>is whether the <i>Daubert </i>Amendment is invalid on separation of powers grounds. Nonetheless, the Court&rsquo;s prior rules decision&mdash;and its decision to accept discretionary-review jurisdiction in <i>DeLisle</i>&mdash;indicates that the Court, as currently comprised, may be inclined to find the <i>Daubert</i> Amendment unconstitutional.</p> <p>The petitioner&rsquo;s reply brief in <i>DeLisle </i>was filed on December 12, 2017. The Court has not yet set a date for oral argument. When it ultimately rules, the Court&rsquo;s decision will have widespread impact and promises to resolve the current uncertainty about the continued viability of <i>Daubert </i>in Florida.</p>Products Liability Blog19 Dec 2017 00:00:00 -0800 Supreme Court Draws the Line: Invalidates $2.7 Million Dollar Discovery Sanction Against Manufacturer<p>On April 18, 2017, the U.S. Supreme Court made a bold and seemingly manufacturer-friendly pronouncement in overturning a federal district court judge&rsquo;s $2.7 million award in sanctions against manufacturer Goodyear Tire &amp; Rubber Company for a purported discovery violation. <i>See Goodyear Tire &amp; Rubber Co. v. Haeger</i>, 137 S. Ct. 1178 (Apr. 18, 2017).&nbsp;The decision carries significant implications in the context of discovery violation jurisprudence as well as a curb on a district court&rsquo;s inherent sanctioning authority.</p> <p>By way of background, the litigation arose from the Haeger family&rsquo;s action against Goodyear, alleging the failure of a Goodyear G159 tire caused the family&rsquo;s motorhome to swerve off the road and flip over. Discovery in the case was contentious and lasted several years.&nbsp;A key issue in the contentious discovery process involved repeated requests for internal G159 tire testing, which Goodyear was persistently slow to respond to. On the first day of trial in April 2010, the parties informed the court that a settlement had been reached.&nbsp;Months after the settlement, the family&rsquo;s lawyer discovered G159 tire testing from another lawsuit, which had not been produced in the subject litigation. The undisclosed G159 testing revealed the G159 tire &ldquo;got unusually hot&rdquo; at highway speeds. &nbsp;<i>Id. </i>at 1184.&nbsp;Goodyear conceded withholding the information despite a direct request for all testing regarding the subject model tire. &nbsp;Thereafter, the family sought sanctions (attorney&rsquo;s fees and costs) for Goodyear&rsquo;s knowing concealment, discovery fraud and bad faith litigation.&nbsp;</p> <p>Arizona Senior District Court Judge Roslyn O. Silver found that Goodyear and its attorneys had &ldquo;engaged in a &lsquo;years-long course&rsquo; of bad-faith behavior.&rdquo;&nbsp;<i>Id.&nbsp;</i>Exercising its inherent authority to sanction bad faith litigation, the district court awarded the Haeger family $2.7 million.&nbsp;Despite acknowledging that in the &ldquo;usual case, sanctions ordered pursuant to a court's inherent power to sanction litigation misconduct must be limited to the amount of legal fees caused by that misconduct[,]&rdquo; Judge Silver nevertheless determined that &ldquo;the sanctionable conduct r[ose] to a truly egregious level . . . .&nbsp;[a]nd when a litigant behaves that badly . . . all of the attorneys' fees incurred in the case [can] be awarded . . . without any need to find a &lsquo;causal link between [those expenses and] the sanctionable conduct.&rsquo;&rdquo;&nbsp;<i>Id. </i>at 1189 (alterations).&nbsp;In support of its award, the district court also concluded that full and timely disclosure of the withheld test results would likely have led Goodyear to settle the case much earlier.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p>Writing for a unanimous Court (with the exception of Justice Gorsuch who did not participate), Justice Elena Kagan stated: &ldquo;A district court has broad discretion to calculate fee awards under [the bad faith litigation] standard.&nbsp;But because the court here granted legal fees beyond those resulting from the litigation misconduct, its award cannot stand.&rdquo;&nbsp;<i>Id. </i>at 1184 (alteration). The Court emphasized that such sanctions must be compensatory rather than punitive in nature.&nbsp;<i>Id. </i>at 1186.&nbsp;&ldquo;A sanction counts as compensatory <i>only if</i> it is &lsquo;calibrate[d] to [the] damages caused by&rsquo; the bad-faith acts on which it is based.&nbsp;<i>Id. </i>(emphasis added).&nbsp;Not only did the Court find that the district court deviated from established standards and overstepped its inherent authority, but it also found that the Haeger family failed to establish the case would have settled had the testing been provided at the first instance or that Goodyear&rsquo;s non-disclosure permeated the entire litigation as to justify an all-fees award.&nbsp;</p> <p>This case is critically important for several reasons, which extend far beyond the facts of the case.&nbsp;The Supreme Court&rsquo;s decision clearly delineates limitations on a district court judge&rsquo;s authority to impose sanctions.&nbsp;The <i>Haeger </i>decision bolsters the causal link or but-for requirement between the alleged misconduct and the legal fees to be paid by an offending party.&nbsp;Moreover, the decision serves as a firm and realistic reminder to manufacturers and their counsel of the importance of carefully collecting, correlating and responding to discovery requests as well as maintaining consistency and uniformity in document production from one case to the next.&nbsp;The continuing duty in federal court to supplement discovery responses is also at the forefront of considerations in analyzing the facts of this case.&nbsp;It also highlights the potential and seemingly continual exposure for alleged discovery violations and/or failure to produce certain testing, documents or other things even post-settlement.&nbsp;Going forward, manufacturers and their counsel may want to consider including a clause/language waiving any post-settlement claims for discovery violations in the release and/or stipulation.&nbsp;&nbsp;</p>Products Liability Blog01 May 2017 00:00:00 -0800 Court Extends Privacy Rights to Vehicle Black Box<p>In a case of first impression, the Florida Fourth District Court of Appeal held that police need a warrant to search a vehicle&rsquo;s black box or event data recorder (EDR). EDRs, which are now present in almost every vehicle on the road, are devices that record technical crash data for a brief period of time before, during and after a crash.&nbsp;After a fatal car crash, police downloaded the data from the impounded car&rsquo;s EDR without a warrant.&nbsp;The driver of car was later charged with DUI manslaughter and moved to suppress the data downloaded from the EDR.&nbsp;The trial court held that the warrantless search of the EDR violated the Fourth Amendment and granted the driver&rsquo;s motion to suppress.&nbsp;The state appealed arguing the Fourth Amendment did not apply, because there was no reasonable expectation of privacy in the data from the EDR.&nbsp;</p> <p>Affirming the trial court, the appellate court held there is a reasonable expectation of privacy in the data obtained from the EDR.&nbsp;Therefore, a warrant is required to download the data from the EDR absent exigent circumstances.&nbsp;Interestingly, the Court relied on prior decisions recognizing a reasonable expectation of privacy in cell phones, though the Court acknowledged that cell phones contain much more private and personal information than an EDR.&nbsp;The Court equated the difficulty in extracting information from EDRs with cell phones, which enhances the expectation of privacy.&nbsp;&nbsp; With the ever-expanding use of technology in vehicles, this decision will have a far-reaching impact.&nbsp;The State of Florida will likely appeal the ruling of the appellate court to the Florida Supreme Court, so stay tuned for further developments.&nbsp;The case is <i>Florida v. Worsham,</i> No. 4D15-2733 (Fla. Dist. Ct. App. Mar. 29, 2017).</p>Products Liability Blog01 May 2017 00:00:00 -0800 Under the Microscope Again by Florida Courts a ruling that raises new issues about the adoption of the <em>Daubert</em> standard for the admissibility of expert opinions in Florida state court, the Florida Supreme Court has declined to adopt, to the extent they are procedural, the 2013 legislative changes the Florida Evidence Code that put the <em>Daubert</em> standard into effect. In Re: Amendments to the Florida Evidence Code, No. SC16-181, February 16, 2017. Although the recent decision does not address the ultimate constitutionality of the <em>Daubert </em>Amendment, it will create confusion in the state courts until further clarity is provided. <br /> <br /> The <em>Daubert </em>Amendment, which went into effect in July 2013, dropped the older<em> Frye </em>standard in favor of the more rigorous <em>Daubert </em>standard for admissibility of expert testimony. In declining to adopt the <em>Daubert</em> Amendment to the extent that it is procedural, the Supreme Court&rsquo;s ruling cites constitutional concerns that adopting<em> Daubert</em> would impede access to the courts and undermine the right to a jury trial. Justice Polston, in a strongly worded dissent, disputes these concerns and notes that federal courts and a clear majority of states have long adhered to <em>Daubert </em>without any such constitutional concerns. The ruling does not reach the constitutionality of the <em>Daubert </em>Amendment, or resolve the extent to which the Amendment is substantive or procedural in nature.<br /> <br /> The procedural versus substantive distinction is critical to the analysis and livelihood of <em>Daubert</em> as a matter of Florida law going forward. To the extent that the <em>Daubert </em>Amendment is construed as strictly procedural in nature (i.e. not impacting rights, obligations, causes of actions, etc.), then the Supreme Court ruled the Florida Legislature overstepped its bounds and enacted an unconstitutional law on a matter within the province of the Court. Whether the<em> Daubert</em> Amendment is unconstitutional as a matter of substance&mdash;meaning it is entirely unconstitutional&mdash;is left to be determined. The Court&rsquo;s ruling did not address this issue. Not until an actual case and controversy is before the Florida Supreme Court can that discrete and seminal issue be decided. Until then, the<em> Daubert </em>Amendment in the Florida Evidence Code remains a valid and binding law. However, the recent ruling is a clear indication that the Court, as currently comprised, is likely to find the Daubert Amendment unconstitutional when presented with the issue in an appropriate case.<br /> <br /> These unresolved issues will certainly create great confusion in state courts. In fact, anecdotal evidence confirms that many judges in South Florida have already refused to hear <em>Daubert </em>challenges until further clarity is provided. The recent ruling will inevitably create procedural delay until the courts put in place some definitive position or action in this regard. Plaintiff&rsquo;s attorneys will likely seek to continue or stay any Daubert challenges pending a ruling on the substance of the statute. Also likely are expert depositions or other discovery that is more prolonged due to emphasis on both <em>Frye</em> and <em>Daubert</em> until the dilemma is resolved. <br /> <br /> Alternatively, plaintiff&rsquo;s attorneys will be on the hunt to tee up a case for appeal before the Florida Supreme Court on this issue. Opponents of the <em>Daubert </em>standard may be motivated to quickly find a case to get the merits of the Daubert Amendment before the Florida Supreme Court. Three of the four Justices concurring in the recent decision&mdash;Pariente, Lewis and Quince&mdash;are due for mandatory retirement on January 8, 2019, the same day as Governor Rick Scott&rsquo;s last day in office. Governor Scott has said he plans to make three replacement appointments on that day. Any such appointees may have a more favorable view of <em>Daubert</em> than the outgoing Justices. <br /> <br /> To view the full opinion click here:&nbsp; <a href=""></a><br /> <br />Products Liability Blog17 Feb 2017 00:00:00 -0800 Verdict for Harley-Davidson Eubanks of Rumberger, Kirk &amp; Caldwell and Mark Kircher of Quarles &amp; Brady won a defense verdict on behalf of Harley-Davidson on January 19, 2017 in a product liability case in the United States District Court for the Eastern District of Texas, Marshall Division. The claims against Harley-Davidson related to Harley-Davidson offer of anti-lock brakes (ABS) as optional as opposed to standard equipment on some of its models including the 2012 Electra Glide Classic. In June 2012, Plaintiff Mark Jones purchased a 2012 Electra Glide Classic from Paris Harley-Davidson in Paris, Texas and did not purchase the optional ABS. A little more than a year later, while Mr. Jones was riding the bike with his wife Pamela Jones as a passenger, a Chevrolet Avalanche made a left turn across their path of travel and into Wal-Mart. There was no collision. Mr. Jones, who had no formal motorcycle training, over applied his brakes causing the bike to skid and ultimately capsize resulting in broken bones and head injuries to both riders. Neither Mr. nor Mrs. Jones were wearing helmets.<br /> <br /> Mr. and Mrs. Jones filed suit alleging that the 2012 Electra Glide Classic was defective and unreasonably dangerous because it did not have ABS as a standard feature and because Harley-Davidson did not provide adequate descriptions of the benefits of ABS, that H-D was negligent for selling a defective bike without ABS and for failing to warn customers of the benefits of ABS. Plaintiffs alleged that Harley-Davidson&rsquo;s own documents show that ABS is &ldquo;safer&rdquo; and also alleged that studies by the Insurance Institute for Highway Safety and other researchers provided data that demonstrated some safety benefits of ABS; therefore, the state of the art required that ABS should have been standard on Harley-Davidson touring models by 2009 and on all Harley-Davidson models by 2012.<br /> <br /> Harley-Davidson denied all the allegations and presented evidence that the 2012 Electra Glide Classic foundation brakes were not defective without ABS, but rather were extremely capable. Harley-Davidson also presented evidence of its efforts in promoting ABS to its customers, and in proliferating ABS as both optional and standard throughout its product portfolio of motorcycles. There was proof that the motorcycle complied with FMVSS 122 which governs motorcycle braking systems and did not mandate ABS at the time the motorcycle was manufactured and does not mandate ABS to this day. Harley-Davidson presented evidence that the vast majority of the motorcycles on the road in 2012 (~91%) did not have ABS, and that H-D&rsquo;s conduct was reasonable and, in fact, extremely responsible through its ABS promotion and proliferation. There was compelling evidence that a significant segment of Harley-Davidson's customers did not wish to have ABS on their motorcycles for various reasons including: customization, strict maintenance requirements, and a desire not to have the increased complexity of a computer controlled braking system.<br /> <br /> This case was one that challenged Harley-Davidson's fundamental values of American Freedom. Harley-Davidson's mission statement is &ldquo;We Fulfill Dreams of Personal Freedom&rdquo; and this lawsuit attacked those values. Harley-Davidson defended these values and the rights of its customers to make their own decisions as to what features are important to them.<br /> <br /> The case went to the jury at 10:30 a.m. and the jury returned a complete defense verdict at 12:30.Products Liability Blog19 Jan 2017 00:00:00 -0800 Safety Technologies: Lowering the Bar for the Alert and Safe Driver. 2013, The National Highway Traffic Safety Administration (NHTSA) released a &lsquo;Preliminary Statement of Policy Concerning Automated Vehicles&rsquo; (the &ldquo;Policy&rdquo;). The Policy includes a classifications system partitioning vehicle automation into five levels, ranging from level 0 (&ldquo;no automation&rdquo;) to level 4 (&ldquo;full self-driving automation&rdquo;). Although most liability debates among legal scholars focus on the horizon of level 4 - &ldquo;full self-driving&rdquo; vehicles and who is liable when those vehicles are involved in an accident; the vehicles in levels 1 and 2 present the most immediate concerns from a product liability perspective. For jurisdictions with pure comparative fault standards (such as Arizona, Florida, Kentucky, Louisiana, Mississippi, and New Mexico), vehicles with level 1 and 2 automation could serve as the catalyst for a switch from pure comparative fault to either a standard of modified comparative fault or contributory fault.<br /> <br /> Many commercials by automobile manufacturers now highlight the autonomous safety features of their vehicles. These commercials usually involve a driver in a new vehicle who is distracted either by a passenger, an outside event, or simply is not paying attention to the road. Inevitably, an unexpected hazard presents itself and the driver, who is not paying attention, does not have enough time to react. But, instead of a significant collision with either a vehicle, animal, pedestrian, or crash test wall, the new vehicle senses the hazard and applies the brakes avoiding an accident. Most of these commercials end with the driver relieved he or she was not involved in an accident. <br /> <br /> Situations such as these have become more common over the last several years with automotive manufacturers introducing autonomous technologies in an effort to push innovation and raise safety standards. However, the predominant concern is whether these autonomous systems foster negligence and inattentiveness on the part of the human driver. These commercials can underscore negligence from many different parties, most importantly of which is the distracted driver in the new vehicle. The message is that, were it not for the autonomous safety technologies, the result would have been a significant collision. <br /> <br /> In May of 2016, a man was killed in Florida while driving his Tesla Model S, equipped with Autopilot. The accident occurred &ldquo;when a tractor trailer drove across the highway perpendicular to the Model S. Neither the Autopilot nor the driver noticed the white side of the tractor trailer against a brightly lit sky, so the brakes were not applied. The high ride height of the trailer combined with its positioning across the road and the extremely rare circumstances of the impact caused the Model S to pass under the trailer, with the bottom of the trailer impacting the windshield of the Model S.&rdquo; It is not immediately known if Autopilot is predicated upon lighting conditions while driving, but Tesla has previously stated that Autopilot uses a &ldquo;unique combination of cameras, radar, ultrasonic sensors and data to automatically steer down the highway, change lanes, and adjust speed in response to traffic.&rdquo; <br /> <br /> The NHTSA is leading an investigation into Tesla&rsquo;s Autopilot feature, yet some immediately apparent concerns are worth addressing. First, Tesla&rsquo;s &ldquo;Autopilot&rdquo;, which also uses a feature called &ldquo;Autosteer,&rdquo; has a misleading name because while the term suggests autonomy, the vehicle is only equipped with Level 2 automation technology, which still requires the driver to monitor the roadway for safe operation. Tesla&rsquo;s literature is exceptionally clear that a driver operating Autopilot and Autosteer is &ldquo;to remain engaged and aware when Autosteer is enabled.&rdquo; Second, it is entirely possible that the driver became too comfortable with the technological capabilities of the vehicle to his own detriment. Following the accident, the Associated Press reported that the driver of the tractor trailer heard Harry Potter playing in the Model S even after the crash. The driver of the Model S also frequently took videos while driving to show the vehicle&rsquo;s capabilities. This even resulted in a YouTube video, taken only a month before the fatal accident, in which the driver claimed the Model S saved his life by avoiding a significant collision when entering a highway. <br /> <br /> The Tesla Model S example brings front and center all of the tensions at play with autonomous technology efforts. Autonomous safety systems are designed to augment and assist the ordinarily presumed alert and safe driver. Yet, a given plaintiff will inevitably file a lawsuit against an automotive manufacturer alleging a design defect in failing to install one or more of these autonomous safety technologies, such as adaptive cruise control, lane centering, blind spot warning, forward collision warning, and emergency braking. However, autonomous safety technologies are distinctly different because they attempt to mitigate the potential of a collision by safeguarding against a driver&rsquo;s negligence, and circumstances which the driver may not otherwise perceive. Previous safety advancements such as airbags, safety glass, the collapsible steering column, and even seat belts (if used), reduce the risk of injury regardless of any negligence. <br /> <br /> Autonomous technologies in levels 1 and 2 specifically seek authority of one or more primary functions of the automobile. The driver is responsible for safe operation of the vehicle, but as more of these systems are installed and integrated with one another, friction will develop within the courts between the driver&rsquo;s responsibility for safe operation of the vehicle, and a manufacturer&rsquo;s responsibility to provide these autonomous systems. If the general public begins to see these systems as necessary, then manufacturers should be aware that prospective jurors will enter with such preconceptions. Counsel for the defense should be aware of this possibility and use voir dire to develop as much information as possible to assess the venire&rsquo;s feelings on such issues. Voir dire should also be used to educate and reinforce the responsibilities of a driver. The interplay of technology and the capabilities of autonomous safety systems will undoubtedly cut across many lines, and could easily affect defense themes of the case, as well as personal accountability and generational gaps.<br /> <br /> For states with pure comparative fault standards, a manufacturer could be held proportionately liable for failing to provide a system that inherently protects against a driver&rsquo;s negligence. After all, in bringing a claim of this nature a plaintiff is stating &ldquo;had [technology system] been installed on the vehicle, I would not have had an accident.&rdquo; This mentality could open the door for every automobile accident to give rise to a products liability lawsuit. <br /> <br /> Additionally, a more difficult claim will be raised when a vehicle is equipped with these autonomous safety technologies, but the accident still occurs. In that case, a court is immediately presented with a causation issue. The central battle would be whose failure caused the accident &ndash; the distracted inattentive driver, the computer system that did not react in time, or is there a third party that bears the lion&rsquo;s share of liability? <br /> <br /> The challenge for the defense in these suits will be two-fold. First, the defense must prevent the jury from becoming enamored with the new technological capabilities of the manufacturer&rsquo;s autonomous safety systems. This could put defense counsel in an awkward position as they may be inclined to downplay the safety accomplishments of their client. The defense should look to manage the expectations of the jury from the perspective of technology by properly explaining the autonomous safety systems. Jurors may be awestruck by the capabilities alone of an autonomous safety system, and overlook the negligence of a driver. The preferred tactic focuses on the limitations of the technology safety systems, and how they are most effective when used by an attentive driver. <br /> <br /> Second, the defense should highlight the negligence of the driver, because claims of this nature contain an open admission of negligence. This will require a careful balancing act because the defense must present the jury with evidence of negligence, but not alienate the jury by tearing down the injured plaintiff. A defense should consider focusing on the primary functions a driver cedes control of when relying on these autonomous safety technologies. As more of these systems are used and incorporated with one another, the driver increasingly relinquishes more attention and responsibility in operating the motor vehicle, thereby increasing his or her level of fault. Depending on the technology which is the subject of a plaintiff&rsquo;s claim, a manufacturer could significantly diminish or even completely negate any proportionate fault. Warnings will also be of great importance for the manufacturers. If a manufacturer has properly warned a driver about the limitations of autonomous safety systems, a driver may be less inclined to file a lawsuit. Manufacturers may need to program pop-up warnings into the autonomous systems when they are engaged to remind and reinforce the proper use of the safety systems. <br /> <br /> Finally, and perhaps most challenging, will be a defense&rsquo;s ability to account for the relative experience of a driver. Meaning, new and young drivers present as plaintiffs who presumably has only operated a vehicle with the assistance of autonomous safety technologies. As juries become more familiar with and dependent upon autonomous safety technologies, they will begin to assume the necessity of such systems and could ignore the negligence of a driver in a given accident. Accordingly, a manufacturer could see its proportion of fault increase over time regardless of how negligent a driver was in causing an accident. <br /> <br /> If this does in fact happen, manufacturers will likely petition states with pure comparative fault principles to adopt a policy of either modified comparative fault, which limits liability when a driver is 50% or more negligent; or, adopt a policy of contributory fault, which prohibits a plaintiff&rsquo;s recovery if the plaintiff is even 1% responsible in causing an accident. For jurisdictions with pure comparative fault, a switch to modified comparative fault is more plausible and probably more palatable for legislators. Modified comparative fault also provides both manufacturers and legislators greater freedom in crafting legislation which holds a manufacturer liable, but not for those situations when a driver is clearly negligent in causing an accident or injury, and seeks redress from the manufacturer for failing to indemnify the driver for his or her own negligence. <br /> <br /> As more level 1 and level 2 vehicles are produced, these accidents and scenarios will become more prevalent. Manufacturers should be aware that the increased marketability of autonomous safety technologies will open up their liability to lawsuits in failing to provide these technologies as standard equipment. Regardless of the level of automation of a vehicle, it remains the driver&rsquo;s responsibility to safely operate the vehicle. After all, the driver is the one licensed, not the vehicle.<br /> <br /> <br /> JOHN VILLASENOR, PRODUCTS LIABILITY AND DRIVERLESS CARS: ISSUES AND GUIDING PRINCIPLES FOR LEGISLATION, 6 (Brookings Institute, April 24, 2014)<br /> Level 0: No-Automation <br /> The driver is in complete and sole control of the primary vehicle controls (brake, steering, throttle, and motive power) at all times, and is solely responsible for monitoring the roadway and for safe operation of all vehicle controls. Vehicles that have certain driver support/convenience systems but do not have control authority over steering, braking, or throttle would still be considered &ldquo;level 0&rdquo; vehicles. Examples include systems that provide only warnings (e.g., forward collision warning, lane departure warning, blind spot monitoring) as well as systems providing automated secondary controls such as wipers, headlights, turn signals, hazard lights, etc.<br /> <br /> Level 1: Function-specific Automation<br /> Automation at this level involves one or more specific control functions; if multiple functions are automated, they operate independently from each other. The driver has overall control, and is solely responsible for safe operation, but can choose to cede limited authority over a primary control (as in adaptive cruise control), the vehicle can automatically assume limited authority over a primary control to aid the driver in certain normal driving or crash-imminent situation (e.g., dynamic brake support in emergencies)&hellip;The vehicle&rsquo;s automated system may assist or augment the driver in operation of one of the primary controls&hellip;As a result, there is no combination of vehicle control systems working in unison that enables the driver to be disengaged from physically operating the vehicle by having his or her hands off the steering wheel AND feet off the pedals at the same time. Examples of function specific automation systems include: cruise control, automatic braking, and lane keeping. <br /> <br /> Level 2: Combined Function Automation<br /> [A]utomation of at least two primary control functions designed to work in unison to relieve the driver of control of those functions. Vehicles at this level of automation can utilize shared authority when the driver cedes active primary control in certain limited driving situations. The driver is still responsible for monitoring the roadway and safe operation and is expected to be available for control at all times and on short notice. The system can relinquish control with no advance warning and the driver must be ready to control the vehicle safely. An example of combined functions enabling a Level two system is adaptive cruise control in combination with lane centering. <br /> <br /> Level 3: Limited Self-Driving Automation<br /> Vehicles at this level of automation enable the driver to cede full control of all safety-critical functions under certain traffic or environmental conditions and in those conditions to rely heavily on the vehicle to monitor for changes in those conditions requiring transition back to driver control. The driver is expected to be available for occasional control, but with sufficiently comfortable transition time. The vehicle is designed to ensure safe operation during the automated driving mode. An example would be an automated or self-driving car that can determine when the system is no longer able to support automation, such as from an oncoming construction area, and then signals to the driver to reengage in the driving task, providing the driver with an appropriate amount of transition time to safely regain manual control. The major distinction between level 2 and level 3 is that at level 3, the vehicle is designed so that the driver is not expected to constantly monitor the roadway while driving. <br /> <br /> Level 4: Full Self-Driving Automation<br /> The vehicle is designed to perform all safety-critical driving functions and monitor roadway conditions for an entire trip. Such a design anticipates that the driver will provide destination or navigation input, but is not expected to be available for control at any time during the trip. This includes both occupied and unoccupied vehicles. By design, safe operation rests solely on the automated vehicle system. <br /> <br /> The insurance industry is also facing significant questions with respect to driverless vehicles. See JAMES F. PELTZ, SELF-DRIVING CARS COULD FLIP THE AUTO INSURANCE INDUSTRY ON ITS HEAD, Los Angeles Times (June 20, 2016), <br /> JOHN VILLASENOR, PRODUCTS LIABILITY AND DRIVERLESS CARS: ISSUES AND GUIDING PRINCIPLES FOR LEGISLATION, 5 &ndash; 6, n.18 (Brookings Institute, April 24, 2014) (noting Volvo&rsquo;s City Safety system can automatically apply the brake to avoid or reduce the severity of a collision; Mercedes-Benz&rsquo;s Distronic Plus system uses radar sensors to scan traffic ahead and the PRE-SAFE brake feature automatically initiates up to 40 percent braking power, audibly alerts the driver, and can engage 100% of the brake in the event the driver doesn&rsquo;t respond serving as an electronic crumple zone. The Highway Loss Data Institute has already credited the Distronic Plus system with a 14 percent reduction in property damage liability claim frequency). Lexus currently advertises the Driver Attention Monitor, which detects if the driver is not looking forward and will signal an alert if objects are ahead. <br /> The Tesla Team, A Tragic Loss, TESLA BLOG (June 30, 2016),<br /> Tesla, Model S Software Version 7.0,<br /> Tesla, Model S (July 1, 2016),<br /> Tesla, Model S Software Version 7.0,<br /> Joan Lowy and Tom Kirsher, Tesla driver killed in crash while using car&rsquo;s &lsquo;Autopilot&rsquo;, AP: THE BIG STORY (JUNE 30, 2016, 10:27 PM),<br /> Autopilot Saves Model S, YOUTUBE (April 5, 2016),<br /> <br />Products Liability Blog18 Sep 2016 00:00:00 -0800 The Florida Supreme Court Shouldn't Undo Daubert published by Law360, New York (July 15, 2016, 10:55 AM ET) -- <br /> <br /> Three years after Gov. Rick Scott signed into law amendments to Florida Statute Sections 90.702 and 90.704, modernizing Florida to a Daubert jurisdiction and abandoning the archaic Frye standard, there remains a looming state of unsteadiness. Since July 1, 2013 (the enactment date of the Daubert<em> </em>amendment), there have been countless Daubert<em> </em>challenges, hearings, trial court orders, appeals, appellate opinions, articles, continuing legal education seminars, meetings and votes of the Florida Board of Governors, and debates all having to do with <em>Daubert</em> as a matter of Florida law. Will Daubert<em> </em>remain or will Florida revert back to Frye?<br /> <br /> It is undisputed that Florida lawyers and judges have been &mdash; and will continue until further notice &mdash; applying Daubert. A noteworthy body of Daubert<em> </em>jurisprudence as a matter of Florida law has been etched out. It began with <em>Conley v. State, </em>in which the First District reversed and remanded for a new trial, instructing the lower court to determine the admissibility of certain evidence under <em>Daubert</em>. 129 So. 3d 1120, 1121 (Fla. 1st DCA Dec. 20, 2013). Then in 2014 the Third District expounded upon a thorough comparative analysis of the Frye and Daubert standards in Perez. See <em>Perez v. Bellsouth Telecommunications, </em>138 So.3d 492, 497-99 (Fla. 3d DCA Apr. 23, 2014). The First District continued to pave the way in developing Florida&rsquo;s<em> </em>Daubert<em> </em>jurisprudence. See <em>Baan v. Columbia County, </em>180 So.3d 1127, 1132-34 (Fla. 1st DCA Dec. 8, 2015)(concluding expert testimony constituted ipse dixit or an unproven statement);<em> Perry v. City of St. Petersburg,</em> 171 So.3d 224, 225 (Fla. 1st DCA Aug. 7, 2015)(applying <em>Daubert </em>to worker&rsquo;s compensation proceedings); <em>Booker v. Sumter County Sherriff&rsquo;s Office/North America Risk Services,</em> 166 So. 3d 189, 193-94 (Fla. 1st DCA May 29, 2015)(highlighting the timeliness requirements for<em> Daubert </em>challenges); <em>Giaimo v. Fla. Autosport Inc., </em>154 So.3d 385, 387-89 (Fla. 1st DCA Nov. 26, 2014)(emphasizing the abolition of pure opinion testimony under the Daubert amendment). The Fifth District also joined the fray and determined mental health opinion testimony should be examined under Daubert<em>.</em> See Andrews v. State, 181 So. 3d 526, 527-29 (Fla. 5th DCA Oct. 30, 2015)(finding the proposed opinion testimony at issue satisfactory). Most recently, the Fourth District held the Daubert amendment applied retrospectively and was procedural in nature. See Bunin v. Matrixx Initiatives Inc., 4D14-3579, (Fla. 4th DCA June 1, 2016).<br /> <br /> There have also been significant and noteworthy trial court orders addressing Daubert. For example, a circuit court judge in Duval County entirely excluded a boating expert in a product liability case for failing to do any testing and advancing entirely unreliable opinions. <em>See Sullivan v. BRP U.S. Inc.,</em> Case No. 16-2013-CA-569-XXXX, (Fla. Cir. Ct. July 2, 2015) (Duval County). Similarly, a Miami-Dade County circuit court judge entirely excluded an addiction expert in a tobacco litigation matter. See <em>Wendel v. R.J. Reynolds Tobacco Co</em>, Case No. 10-54813 CA (15) (Fla. Cir. Ct. Apr. 1, 2014)(finding the expert was unqualified to opine on nicotine addiction and the expert utilized an entirely unreliable methodology). A Hillsborough County circuit court judge was one of the first judges in Florida to address the retroactivity of the Daubert amendment, the constitutionality of the amendment under a separation of powers challenge and whether the amendment was procedural or substantive. See <em>Gross v. Plantation Key Association</em>, Case No. 06-CA-005879 (Fla. Cir. Ct. Sept. 13, 2013).<br /> <br /> The aforementioned efforts may all end up being in vain. There are serious efforts to have Daubert rejected. By way of background, the Florida Supreme Court has the ultimate authority in adopting a given evidentiary standard as a matter of Florida law. The Supreme Court has not yet spoken on or addressed this issue. Hence, the present state of affairs and uncertainty about which expert standard will govern in Florida. The Florida Bar&rsquo;s Code of Rules and Evidence Committee submitted a Three Year Cycle Report proposing that Sections 90.702 and 90.704 not be adopted as Rules of Evidence to the extent they are deemed procedural. The Florida Board of Governors approved the report by a wide margin of a vote. On Feb. 1, 2016, the Florida Board of Governors submitted the report to the Florida Supreme Court, recommending that the Daubert amendments be rejected. The Florida Supreme Court will hear oral arguments for and against Daubert on Sept. 1, 2016.<br /> <br /> It would seem impractical, inefficient and nonsensical for the Supreme Court to declare the last three years of Daubert litigation and jurisprudence &ldquo;as a matter of Florida law&rdquo; nothing more than an exercise in futility. One would hope that the system of checks, balances and communications between the legislature and the judiciary are more carefully circumscribed and calibrated than to allow for such a preposterous result. In any event, a determinative outcome will soon bring the tension and uncertainty to a definitive end for better or for worse.<br /> <br /> <br /> <br /> <br /> <br /> <br />Products Liability Blog15 Jul 2016 00:00:00 -0800 Circuit's Opinion Increases the Burden on Those Seeking Class Certification<h2>Brown is a &quot;defense favorable&quot; opinion that should be heavily relied upon when challenging class actions.</h2> <br /> The Eleventh Circuit Court of Appeals recent opinion in <em>Brown v. Electrolux Home Products</em>, 2016 WL 1085517 (11th Cir. Mar. 21, 2016), just elevated the bar for parties seeking class action certification in the Eleventh Circuit.&nbsp; In <em>Brown</em>, the Court reversed a district court&rsquo;s order granting class certification for violations of California and Texas consumer protection acts and breach of warranty claims. <br /> <br /> <span id="__fakeFCKRemove__" style="display: none;">fakeFCKRemove</span>In doing so, the Court held: <ol> <li>the district court articulated the incorrect standard for adjudicating a motion for class certification;&nbsp;</li> <li>the &quot;causation&quot; element of consumer protection claims required individual, not common, proof;&nbsp;</li> <li>the district court could not evaluate predominance for the breach of warranty claims without first answering preliminary questions of state law. The Court vacated the class certification for the consumer claims, and remanded the warranty claims back to the district court to resolve the preliminary questions of state law.</li> </ol> The Court's opinion will have far-reaching consequences as it effectively overrules a large body of federal case law that favors plaintiffs and class certification by eliminating from the class-certification analysis the principal that plaintiffs' allegations in a complaint are accepted as true and doubts are resolved in favor of class certification. Further, the ruling requires a much stricter application of existing prerequisites in Federal Rule of Civil Procedure 23.<br /> <font size="3" face="Times New Roman"> </font><strong><br /> The District Court Misstated the Standard for Evaluation of a Motion for Class Certification</strong>.<br /> <br /> The Eleventh Circuit held that the district court relied on the incorrect standard for evaluating class certification.&nbsp; In reversing the district court, the Eleventh Circuit identified two misstatements of law.&nbsp; First, the district court stated that doubts related to class certification are resolved &quot;in favor of the certifying class.&quot;&nbsp; Second, the district court stated all allegations in the complaint are &quot;accepted as true&quot; and that the Court &quot;draws all inferences and presents all evidence in the light most favorable to the Plaintiffs.&quot; <br /> <br /> Regarding the first misstatement, the Eleventh Circuit, citing to recent Supreme Court of the United States case law,&nbsp; held that &quot;all else being equal, the presumption is against class certification because class actions are an exception to our constitutional tradition of individual litigation.&quot;&nbsp; As to the second misstatement, the Eleventh Circuit stressed that plaintiffs have the burden of proof, not pleading and must affirmatively demonstrate compliance with Fed. R. Civ. P. 23.&nbsp;&nbsp; Although a court cannot evaluate the merits of a claim, where questions of law or fact relevant to Fed. R. Civ. P. 23 exist, the court has a duty to answer those questions. <br /> <br /> The Eleventh Circuit did not conduct a harmless error analysis of the district court&rsquo;s misstatements because the Court was &quot;going to remand anyway.&quot;&nbsp;&nbsp; This may cause some readers to overlook this portion of the opinion; however, this holding may have the most far-reaching consequences of all of the opinion because the standards articulated by the Court are contrary to standards utilized by federal courts throughout the country. <br /> <br /> <strong>The District Court Erred in Finding Plaintiffs Could Prove Causation on a Class wide Basis for the Violations of California and Texas Consumer Protection Acts.<br /> </strong><br /> The Eleventh Circuit held that the district court abused its discretion in finding that Plaintiffs&rsquo; consumer protection claims satisfied the predominance requirement of Fed. R. Civ. Pro. 23(b)(3).&nbsp; The district court held that the consumer protection claims had common questions of law and fact and were, therefore, susceptible to class-wide proof.&nbsp; The Eleventh Circuit, however, reversed finding that claims were inappropriate for class certification because the California class was not exposed to a uniform misrepresentation and the Texas class needed to prove actual reliance on misrepresentations.&nbsp; As a result, the Eleventh Circuit held both classes could not prove causation on a class-wide basis and vacated the district court&rsquo;s order granting class certification.&nbsp; In doing so, the Eleventh Circuit emphasized the district court&rsquo;s obligation to evaluate the elements of a claim and predict how plaintiffs will prove their claims at trial.&nbsp; <br /> <br /> <strong>The District Court's Certification of the Breach of Warranty Claims was Premature Because the District Court Failed to Resolve Preliminary Questions of State Law Related to Predominance. <br /> </strong><br /> Lastly, the Eleventh Circuit held that the lower court erred in certifying the breach of warranty claims because the district court failed to first resolve preliminary questions of state law bearing on the predominance requirement of Fed. R. Civ. Pro. 23(b)(3).&nbsp; Specifically, the district court failed to determine whether California and Texas law require pre-suit notice, an opportunity to cure, and manifestation of the defect.&nbsp; The district court recognized these questions of state law as &quot;common issues to the class.&quot;&nbsp; However, the district court&rsquo;s analysis fell short when it failed to determine whether these questions would be answered by individual or common proof.&nbsp; Notably, the Eleventh Circuit stated it expressed no view on the answers to the preliminary questions of state law and whether the answers to those questions would defeat predominance, but stated the district court&rsquo;s analysis of Fed. R. Civ. Pro. 23(b)(3) required answers to these questions.&nbsp; <br /> <br /> In practice, the Eleventh Circuit's opinion in <em>Brown </em>increases the burden on those seeking class certification three ways.&nbsp; First, the Court has eliminated any advantage previously afforded to Plaintiffs alleging class certification and articulated a stricter standard.&nbsp; Second, <em>Brown </em>mandated district courts conduct a rigorous analysis of the elements of a claim and determine whether those elements may be proven by individual or common proof.&nbsp; Although the &quot;rigorous analysis&quot; requirement existed prior to <em>Brown</em>, courts within the Eleventh Circuit will without a doubt be taking a much closer look at claims being submitted for class certification.&nbsp; Lastly, <em>Brown</em> requires district courts to answer all preliminary questions of state law relevant to the predominance requirement of Federal Rule of Civil Procedure 23(b) prior to approving class certification.&nbsp;&nbsp; <br />Products Liability Blog25 Apr 2016 00:00:00 -0800 Discovery in Mass Tort Litigation Discovery in Mass Tort Litigation.pdf&format=xml&p=4149In mass tort litigation, such as personal injury suits arising out of airline crashes or product recalls, the sheer volume of individual suits can present significant challenges for defendants in efficiently responding to duplicative and overlapping discovery. Defendants may be faced with responding to overlapping written discovery and depositions in numerous separate lawsuits involving separate sets of attorneys. The options to address these issues depend on whether the case is pending in federal or state court. Federal multidistrict litigation (MDL) procedure enables effective consolidation and coordination of related cases. Florida allows consolidation within a judicial circuit, but state court procedures lack a similar mechanism for coordination of related litigation throughout the state.<br /> <br /> While each lawsuit arising out of a mass tort presents certain individualized issues, the lawsuits also involve common issues. For example, in product liability litigation, written discovery to the defendants on issues such as the design and manufacture of the product at issue and communications with regulators will be duplicative across cases. Similarly, depositions of the manufacturer defendants&rsquo; fact and corporate representative witnesses will address the same or overlapping issues in each case. Coordination of these types of overlapping discovery among individual cases makes the litigation more efficient for the parties and the judicial system. <br /> <br /> Federal MDL procedure addresses this situation and allows for consolidation and coordination of discovery and other pretrial proceedings in related federal litigation throughout the country. MDLs are authorized under federal statute providing that: &ldquo;when civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district of coordination or consolidated pretrial procedures.&rdquo; 28 U.S.C. &sect; 1407(a). The goals of the MDL process are &ldquo;to avoid duplication of discovery, to prevent inconsistent pretrial rulings, and to conserve the resources of the parties, their counsel and the judiciary.&rdquo; <br /> <br /> The Judicial Panel on Multidistrict Litigation (JPML), a panel of seven sitting federal judges appointed by the Chief Justice of the United States, is authorized to create MDLs upon application by a party. See <a href=" "></a> and Rules of Procedure of the United States Judicial Panel on Multidistrict Litigation. Once an MDL has been created, a party can seek transfer of an individual case to the MDL by filing a &ldquo;tag along&rdquo; notice with the JPML. Regardless of where the MDL is established, cases from any federal court in the country can be transferred to the MDL. <br /> <br /> The presiding judge in an MDL establishes discovery and other pretrial deadlines applicable to all cases within the MDL. The MDL court also appoints a Plaintiff&rsquo;s Steering Committee and a Defendant&rsquo;s Steering Committee to coordinate the litigation. The parties will work to streamline written discovery and production of documents. For example, rather than producing documents separately to each plaintiff, the defendants will produce documents uniformly for use by all plaintiffs and subject to a single protective order applicable to all parties in the MDL. In addition, the court may appoint a special master to address discovery matters such as coordination and scheduling of depositions. The parties will arrange for a single set of depositions of the defendants&rsquo; witnesses, with the testimony available for use in all cases within the MDL. <br /> <br /> Florida state court procedure also allows for consolidation of related cases for discovery and other purposes. Florida Rule of Civil Procedure 1.270 provides that: &ldquo;When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.&rdquo; Fla. R. Civ. P. 1.270(a). However, there is no Florida state court equivalent to the JPML to oversee consolidation of related cases. <br /> <br /> Moreover, in contrast to federal MDL procedure, consolidation under Rule 1.270(a) has been limited to cases pending within the same judicial circuit. The rule is broad in permitting consolidation for trial only, discovery only, or for all purposes, but Florida courts have applied it to permit consolidation of cases only within the same judicial circuit. These decisions note that, under the rule, actions &ldquo;pending before the court&rdquo; may be consolidated, and conclude that this phrase refers to cases pending within the same jurisdiction. See Wetherington v. State Farm Mut. Auto. Ins. Co., 661 So. 2d 1276, 1277 (Fla. 2d DCA 1995) (ruling that a case pending in the Thirteenth Judicial Circuit could not be consolidated with a case pending in the Eight Judicial Circuit; stating in part that &ldquo;the trial court was without authority to exercise any jurisdiction over the case pending in the Eighth Judicial Circuit&rdquo;); Y.H. v. F.L.H., 784 So. 2d 565, 568 (Fla. 1st DCA 2001) (same). <br /> <br /> As a practical matter, then, coordination of discovery in mass tort litigation pending in different Florida state courts, not within the same judicial circuit, may depend largely on negotiation among the parties. This stands in contrast to federal MDL procedures which allow for consolidation and coordination of related federal cases throughout the country, regardless of where the cases originate. <br />Products Liability Blog16 Nov 2015 00:00:00 -0800 Discovery in Mass Tort Litigation.pdf&format=xml&p=4149