Judge Abused Discretion in Striking Expert Evidence, NJ Appellate Court Finds
Reverses 2016 Summary Judgment in Ovarian Cancer Cases
On August 5, a three judge panel from the New Jersey state appeals court reversed a 2016 summary judgment granted in favor of defendants, talc manufacturer Johnson & Johnson and talc miner Imerys Talc America in cases brought by two women who allege J&J’s talc products caused their ovarian cancer.
In its opinion, the panel ruled that Atlantic County Superior Court Judge Nelson C. Johnson abused his discretion by serving as the fact finder in deciding the credibility of the plaintiffs’ experts’ opinions instead of merely assessing whether the doctors’ opinions were based on sound scientific methodology. The trial judge acknowledged that the experts, Dr. Graham Colditz and Dr. Daniel Cramer, were qualified but opined that their scientific studies and evidence were narrow and shallow, showing a preference for cohort studies and their larger sample sizes over the case studies relied on by the experts. In overturning the ruling by the trial court and discussing the studies cited by Colditz and Cramer, the appeals court stated that those studies satisfied the criteria outlined in the Federal Judicial Center’s Reference Manual on Scientific Evidence and also noted that size and the types of study are not the sole determinants of reliability.
As a result of the plaintiffs’ experts’ testimony being reinstated, a dispute over a material fact exists in the matter and the case will proceed.
The two cases, brought by plaintiffs Brandi Carl and Diana Balderrama, were the first two to be tried from the group of 100 lawsuits included in New Jersey’s multi-county litigation.
Lost Profits in Commercial Litigation: Proving and Defending Damages
Lost Profits in Commercial Litigation: Proving and Defending Damages Leveraging Calculation Methodologies, Documentation, Expert Evidence, and Effect of COVID Lost profits are often the single most substantial aspect of the plaintiff's claim as well as one of the most contentious, challenging types of damages to prove and are particularly susceptible to attack.In the duel of experts over lost profits damages, both sides will want to analyze and present complex financial documentation as clearly and concisely as possible. Plaintiff's experts must put forth damages studies that are credible and can withstand cross examination from the opposition.In determining how best to counter the plaintiff's damages claim, defense counsel faces a delicate balancing act between defending against liability and discrediting the plaintiff's numbers as presented through a defense expert.Listen as our panel discusses the framework, bases, and aspects of lost profit damages calculations and how to prove or defend against lost profit damages. Outline Framework for lost profits damages Evidence/documentation Quantification of lost profits damages Presentation of lost profits damages Defending against lost profits damages A Strafford production specially selected for HB audiences. Derrick Boyd Founding Partner Boyd Powers Williamson Cameron Byrd Attorney Ahmad Zavitsanos Anaipakos Alavi & Mensing Dr. Allyn Needham, Ph.D., CEA Partner Shipp Needham Economic Analysis The panel will review these and other crucial issues: What evidence and documentation are necessary to prove and defend lost profits damages claims? What methodologies can be used to establish lost profits damages? What are the critical consequences of the COVID pandemic on lost profits claims? What is the most recent case law about lost profits? Does it matter whether the damages alleged are general or special?
Daubert Motions in Construction Litigation: Standards for Expert Witnesses in Design and Defect Claims
Daubert Motions in Construction Litigation: Standards for Expert Witnesses in Design and Defect Claims Raising or Defending Daubert Challenges to Admitting Expert Testimony In most construction suits, both sides rely on experts to provide opinions and testimony supporting or against claims of liability and damages. Such expert testimony often involves determining fault for design and construction defects, schedule delays, and worker inefficiency. Expert opinion and testimony impact all parties in a construction dispute, including property owners, developers, financial institutions, design professionals, contractors, subcontractors, suppliers, and vendors.The Daubert/Frye ruling and the body of law on challenging expert opinions and testimony continue to evolve for construction disputes in both state and federal courts. Courts permit testing expert of testimony and an expert’s foundational methodology or technique to ensure that it is relevant and reliable.Listen as our panel of construction litigators discusses the applicability of the Daubert/Frye standards to the presentation of expert testimony in construction disputes, analyzes what is required to successfully raise or defend a challenge to the admission of expert testimony, and provides guidance for using experts in construction cases. Outline Dispositive motions in the Daubert hearing: the Daubert challenge Frye standards: how they differ from Daubert standards Application to construction cases Application to scheduling, construction defects, and damages Future impact of Daubert/Frye on construction claims Lessons from court rulings A Strafford production specially selected for HB audiences. David Adelstein Partner Kirwin Norris Patrick Perrone Partner K&L Gates The panel will review these and other key issues: How can counsel effectively challenge a construction expert witness' theories and whether those theories have been tested? Under what circumstances should counsel consider not filing a Daubert/Frye motion? How can counsel leverage prior rulings involving a construction expert witness?
Rule 23(c)(5) Subclasses: Certification, Due Process, Adequate Representation, and Settlement
Rule 23(c)(5) Subclasses: Certification, Due Process, Adequate Representation, and Settlement Plaintiffs can define and propose subclasses to address unique issues or to resolve potential intra-class conflicts of interest. Counsel opposing certification will want to emphasize the intra-class conflict as reason to deny certification and show how subclasses render class treatment unmanageable.Due process requires adequacy of representation for all class members, including subclasses. Circuit courts have overturned settlements if they see conflicts of interest among subclasses and the failure of class counsel to ensure independent representation of subclasses.Listen as this experienced panel of class action litigators guides both plaintiff and defense counsel through the effective use of subclasses to resolve the case. Outline Statutory basis of subclasses Types of cases and issues best suited for subclasses Resolving conflicts of interest among subclasses A Strafford production specially selected for HB audiences. Wystan Ackerman Partner Robinson & Cole James Francis Co-Founder Francis Mailman Soumilas Kristen Simplicio Partner Tycko & Zavareei The panel will review these and other key issues: What are the tell-tale signs that a subclass is needed or required? When can subclasses be created? Can there be subclasses within subclasses or is predominance destroyed? What are the due process concerns with subclasses and subclass representation? What should defense counsel consider when deciding whether to oppose certification of subclasses?
Modern Removal and Remand Strategies: Forum Defendant Rule; Snap Removal; Effect on Pleadings, Motion Practice
Modern Removal and Remand Strategies Forum Defendant Rule; Snap Removal; Effect on Pleadings, Motion Practice A defendant in a lawsuit filed in state court can "remove" the case to federal court if there is a diversity of citizenship, except if a "properly joined and served" defendant is a citizen of the forum state. With the advent of electronic filing, defendants now have instantaneous notice of suits and may remove the case before being served, thereby sidestepping the forum defendant rule. Although several U.S. Circuit Courts have approved the practice, a debate remains on whether this practice should be approved.Plaintiffs have their own toolbox to anticipate removal strategies and take preemptive actions to make removal difficult and remand likely. Since all parties can play the literal-reading-of-the-statute card, plaintiffs have seized on ways to bring the "real" parties into the dispute in such a way as to prevent removal.If the case comes to a stop in federal court after removal, the parties must be aware of how the change in forum impacts the rest of the case: deadlines, motions, pleadings, what must be answered, and what is stayed.Listen as this experienced panel of litigators discusses which removal and remand planning and strategies can make the most difference. Outline Statutory authority and procedural requirements Strategies for plaintiffs Avoiding federal question Avoiding diversity, pre- and post-filing Federal question issues as counterclaims; Home Depot v. Jackson Amending the complaint Strategies for defendants Contractual forum selection Snap removal Finding federal question jurisdiction Preemption Federal officer removal Federally chartered defendants Consequences of removal Avoiding remand Effect of removal on pleadings and motion practice A Strafford production specially selected for HB audiences. Christopher Dodrill Shareholder Greenberg Traurig Sylvia Simson Shareholder Greenberg Traurig Andrew Stroud Partner Hanson Bridgett Breana Burgos Attorney Hanson Bridgett The panel will review these and other key issues: What statutes govern removal and remand? What is snap removal? What is federal officer removal, and when does it apply? How can one avoid pleading with federal issues or questions? What are [...]
Resolving Insurers’ and Insureds’ Settlement Dilemmas When Policy Limits Are Insufficient: Multiple Insured and Multiple Claims
Resolving Insurers' and Insureds' Settlement Dilemmas When Policy Limits Are Insufficient: Multiple Insured and Multiple Claims Liability insurers, depending on the jurisdiction, may have to accept a policy limit settlement demand when liability is reasonably clear and the amount of the judgment "likely" will exceed the policy limit. Unique problems arise when an insured faces multiple claims from a single occurrence, liability is clear, and the policy limits are insufficient to settle all claims. Options for dealing with the issue exist, but all potentially expose the insurer to bad faith claims. The panel will explore different approaches, the jurisdictions that follow them, and solutions that offer insurers the best protection from extracontractual claims.Equally vexing is the situation in which more than one insured, such as both the owner of a vehicle and its driver, are covered under one policy. A claimant might demand the policy limits but release only one of the insureds. In such a situation, the insurer could face bad faith claims from one insured for refusing to settle and from the other for agreeing to settle.An interpleader action may not be the answer. Interpleading policy limits can leave the insurer vulnerable to accusations of artificial exhaustion, abandonment of the duty to defend, and a bad faith claim that the insurer shirked its duty to use policy funds to limit the remaining liability of the insured.Listen as our panel discusses these issues and reviews the best strategies for resolving the claims while avoiding bad faith litigation. Outline Multiple claimants and insufficient policy limits First come, first served Settle as many as possible Settle based on the severity of the injury Prorate proceeds based on some formula Multiple insureds and insufficient funds to release all "Majority" view "Minority" view Interpleader Impact on the excess carrier A Strafford production specially selected for HB audiences. Chet Kronenberg Partner Simpson Thacher & Bartlett Jerold Oshinsky Attorney Law Office of Jerry Oshinsky The panel will review critical issues, such as: Should the insurer settle with multiple claimants [...]
Construction Builders Risk and CGL Insurance: Scope of Coverage, Covered Losses, Exclusions, AI Endorsements
Construction Builders Risk and CGL Insurance: Scope of Coverage, Covered Losses, Exclusions, AI Endorsements: Mitigation Construction- Related Disputes; Key Challenges for Claims Under Builders Risk Vs CGL Coverage Counsel to builders and developers must consider are who is covered, what property is covered, what limits and sublimits apply, and when/how coverage applies. Because builders risk policies are not standardized, coverage varies dramatically between insurers. Coverage disputes often arise over the types of costs recoverable, calculation of economic damages, and the coverage exclusions and exceptions.For liability disputes, CGL coverage must be adequately placed to cover construction risks during the course of construction as well as after. Typical issues include who is covered, the scope of coverage, and exclusions and conditions that apply.Counsel often must also navigate the interplay between builders risk policies, CGL policies, including wrap policies, and professional liability policies. These issues are influenced by the language of the policies and the parties’ contractual obligations to each other. Attention to the details is necessary to ensure coverage is triggered when necessary.Listen as our authoritative panel guides you through the characteristics of builders risk and CGL insurance policies and how these policies are used to mitigate developer and contractor risks. Outline Builders risk policies Contractual requirements Scope of coverage Troublesome exclusions and conditions Common issues and practice pointers CGL policies Scope of coverage Exclusions and exceptions to exclusions Costs recoverable Wrap policies Additional insured endorsements A Strafford production specially selected for HB audiences. Michael V. Pepe Partner Saxe Doernberger & Vita Patrick Wielinski Principal Cokinos| Young Christopher Yetka Shareholder Larkin Hoffman Daly & Lindgren The panel will review these and other key issues: What are the critical challenges for claims under builders risk vs. CGL policies? What does a typical builders risk policy cover? What are the standard exclusions and exceptions in builders risk policies? What occurrences do most CGL policies cover? What are the standard exclusions and exceptions in CGL policies? Can a general contractor or developer rely upon additional insured coverage to [...]