Rule 30(b)(6) Depositions in Class Action Litigation: Deposing or Defending Corporate Witnesses, Rule 30 Class action plaintiffs rely on Rule 30(b)(6) depositions as a strategic tool to question corporate representatives about specific topics and bind the corporation to the testimony. There are frequent disputes over the Rule 30(b)(6) deposition notice's adequacy and now Rule 30 requires the parties to meet and confer about various aspects of the deposition. There are also frequent disputes over whether the corporation fulfilled its obligation to select an appropriate deponent and properly prepare the deponent for deposition. From the defendant's perspective, preparation for and defense of a corporate deposition directly impacts the case's success and potential future cases. Counsel must strategically determine who should represent the corporation at the deposition, how much preparation is adequate, and how to deal with privilege issues. Melanie Conroy Partner Pierce Atwood Michael McCarthy Shareholder [...]

Excluding Epidemiological Evidence Under FRE 702 in Toxic Tort, Medical Device, and Pharmaceutical Cases Strategies for Exposing an Expert's Serious Methodological Deficiencies In every toxic tort, medical device, and pharmaceutical product liability case, a threshold issue is whether the product, device, or substance is even capable of causing the alleged harm in some part of the population. To establish this, lawyers rely first and foremost on epidemiological experts and research, the "gold standard" of general causation evidence. Causation, however, is a continuum, and no single study can prove causation. If the plaintiff's epidemiological testimony and related studies are excluded under Federal Rule of Evidence 702 and Daubert, the litigation will most likely end, or at least be significantly narrowed. Thus, admissibility under FRE 702 and Daubert is fiercely litigated in most cases. Courts are increasingly taking a "hard look" at experts' methodologies and assessing whether the expert's opinion reflects [...]

Defending Punitive Damages Cases and Preventing Runaway Awards: New Approaches Runaway punitive damages awards continue to demonstrate that traditional defense strategies can fail against increasingly sophisticated arguments from the plaintiffs' bar. Getting the claim dismissed on summary judgment or arguing that the plaintiff failed to prove the necessary level of culpability may be tools but often fail as stand-alone strategies. Radically different approaches are needed. Counsel must develop a comprehensive strategy, including affirmatively telling the defendant's story. Defendants are finding success in invoking FRE 407 and arguing that subsequent changes have made punitive damages unnecessary. This approach may be instrumental in a variety of tort cases, including trucking and motor carrier cases. Laurie Webb Daniel Partner Webb Daniel Friedlander Kathryn Lehman Partner King & Spalding CLE On-Demand Webinar July 18th, 2023| 1:00PM Eastern This Strafford production has been specially selected for HB audiences. [...]

Influencing the Jury Using and Objecting to Demonstrative Exhibits Developing a Visual Strategy for Trial, Recognizing Misleading or Inaccurate Exhibits, Proposed Amendments to FRE 611 Lawyers throw away an important opportunity to influence the jury if they do not offer their own demonstrative exhibits and object to misleading or inaccurate exhibits offered by their opponents. Jurors routinely create their own diagrams, charts, lists, etc. to visually organize and understand what they believe they heard and saw in the courtroom. Creating both an affirmative and defensive "visual strategy" for trial is as important as picking the theme for trial and requires planning and the proper foundation. Demonstrative exhibits are powerful tools that can be inaccurate or misleading--accidentally or intentionally. Too much, and the jury can be overwhelmed. The issue of misleading and inaccurate demonstrative exhibits and visual aids has fueled proposed amendments to Federal Rule of Evidence [...]

Price Premium Damages in Class Actions: Establishing Whether Losses Are Capable of Measurement on a Classwide Basis Understanding the Measure of Loss and How Economic Experts Attempt to Model Them on a Classwide Basis Consumer fraud, false advertising, and latent-defect product class action cases often seek to recover the difference between the market price actually paid and the true market price that reflects the impact of the unlawful, unfair, or fraudulent business practice: the “price premium.” In evaluating price premium damages, plaintiff and defense experts often disagree about how and to what extent economic models are supposed to--and do--take into account both the demand and supply side of market. Separating the effect of the relevant claims from the effects of numerous other confounding factors must be done in accordance with rigorous scientific standards. In determining whether to certify proposed consumer classes, courts often [...]

Combating Plaintiff Reptilian Tactics in Complex Litigation: Discovery, Voir Dire, Direct and Cross-Examination Plaintiff attorneys use "reptile theory" to get larger plaintiff verdicts by appealing to the primal region of jurors' brains focused on safety and self-preservation. "Reptile" tactics seek to subtly lead the jury to believe that the defendant put all of society in danger and that a plaintiff's verdict is the only way to keep the world safe for themselves and others. Its proponents credit reptile theory for $6 billion-plus in jury verdicts, including a single $50 million verdict in a wrongful death case. To be most effective, reptilian theory tactics are deployed during every phase of a case, including discovery, opening statement, direct- and cross-examination, and closing argument. Defense attorneys must spot when reptilian tactics are being used and develop strategies for nullifying them. Listen as our authoritative panel of litigators shares how to defend [...]

Combating Plaintiff Reptilian Tactics in Complex Litigation: Discovery, Voir Dire, Direct and Cross-Examination Plaintiff attorneys use "reptile theory" to get larger plaintiff verdicts by appealing to the primal region of jurors' brains focused on safety and self-preservation. "Reptile" tactics seek to subtly lead the jury to believe that the defendant put all of society in danger and that a plaintiff's verdict is the only way to keep the world safe for themselves and others. Its proponents credit reptile theory for $6 billion-plus in jury verdicts, including a single $50 million verdict in a wrongful death case. To be most effective, reptilian theory tactics are deployed during every phase of a case, including discovery, opening statement, direct- and cross-examination, and closing argument. Defense attorneys must spot when reptilian tactics are being used and develop strategies for nullifying them. Listen as our authoritative panel of litigators shares how to defend [...]

Product Liability Claims Against Overseas Manufacturers and Suppliers Lacking Presence or Assets in the U.S. How Businesses Outsourcing Production Protect Themselves. What Injured Plaintiffs Can Do to Recover. Many products sold by U.S. businesses are made thousands of miles away by a company that has no presence or assets within the United States. If that finished product or a component in that product causes personal injury or property damage due to a defect or failure to warn, both the injured party and the U.S. seller may wish to recover damages from the overseas producer either directly or by way of indemnification. Before contracting with overseas producers, and in particular those in China, businesses must carefully negotiate and meticulously document their arrangements. U.S. plaintiffs--whether businesses or individuals--seeking redress from manufacturing defendants that have no, or intentionally superficial, presence within the U.S. must first identify recoverable assets before they [...]