Roanoke Woman Files Two $5M Suits Over Hand Injury

As outlined in this article, a Roanoke woman has filed two five million dollar lawsuits in Roanoke Circuit Court against printing press manufacturers after she was injured while working with a book binding machine in October 2006. According to the article,

As she lifted books from a conveyer belt, May’s left hand became lodged in
the press as it continued to operate, according to the suits. Even after the
machine was turned off, workers at the plant had to take it apart before May
could be freed.
…
In separate lawsuits, [her attorney] brought product-liability claims
against the manufacturer of the press, Osako & Co. of Japan, and Regional
Conveyer Services, a Salem firm that provided a conveyer belt involved in the
accident.

The woman claims that she suffered permanent injuries to her hand and that the press should have had an emergency shutoff switch.

NW Law Review Publishes Two Articles on FDA Labeling Preemption

The Northwestern University Law Review recently published two articles that discuss the implications of the Supreme Court's decision in Riegel v. Medtronic, Inc. for state law product liability claims.

Catherine M. Sharkey, What Riegel Portends for FDA Preemption of State Law Products Liability Claims

Richard A. Epstein, The Case for Field Preemption of State Laws in Drug Cases

Magistrate Judge Denies Motion for Contempt and Sanctions

In an unpublished decision last week, Magistrate Judge Michael Urbanski (W.D. Va.) denied the plaintiff’s motion to hold the defendant in contempt and for sanctions because of the defendants’ insurer’s failure to appear in person for mediation.

In Hinkle Oil & Gas, Inc. v. Bowles Rice McDavid Graff & Love, LLP, the underlying lawsuit revolved around an oil company’s claims that “it was prevented from acquiring several oil and gas wells in a bankruptcy proceeding because of certain actions taken by defendant law firm Bowles Rice, and certain of its individual partners, in conflict with the defendants’ obligation to zealously represent Hinkle Oil’s interests.” The plaintiffs claimed that it incurred significant expense by having counsel and its principals travel to Roanoke for the mediation, and that the defendants’ insurer violated a Settlement Conference Order by not having a representative physically present at the mediation with authority to settle.

Five days before the scheduled mediation, the district court (Judge Wilson), in a published opinion, granted summary judgment for the defendants because of the plaintiff’s inability to prove causation. Judge Urbanski, however, denied a request of the parties suggesting that the mediation be cancelled. According to the judge, “[t]he undersigned denied the request to cancel the mediation, believing that each side continued to have significant reasons to settle this case.”

The court briefly concluded that “[i]t is plain that ALPS, as insurer for Bowles Rice, did not meet its obligations under paragraphs 2, 3 and 4 of the Settlement Conference Order, as no ALPS representative with authority was present at the mediation.” Thus, the court analyzed what penalty was appropriate:

This is an unusual case in which summary judgment had been granted for
defendant immediately prior to the mediation. Despite this significant event in
the case, plaintiff's settlement position was such that no settlement was going
to be possible at mediation, regardless of whether the ALPS representative was
present or not. As such, because of the posture of the case and because the
parties remained light years apart in settlement, in the judgment of the
undersigned, it simply did not matter that the ALPS representative was not
physically present. There was, in short, no harm to Hinkle Oil by not having
the ALPS representative here in person. Under these most unusual circumstances,
no sanctions are warranted in this case.

Fourth Circuit Dismisses Petition for Appeal, Sending Blackwater Suit to Arbitration

As outlined in an article in today’s Virginian-Pilot, last Friday, the Fourth Circuit denied a petition for appeal in Blackwater Security Consulting, LLC et al. v. Nordan (E.D. N.C.) (see here for filings related to the case).

In March 2004, four employees of Blackwater, a private security firm, were brutally killed in Fallujah. In January 2005, a representative of the families of the victims filed suit against Blackwater, alleging a breach of contract stemming from the failure to provide proper equipment and security to the men. In December 2006, Blackwater petitioned for the court to direct the matter to arbitration , which the court granted in April 2007, leading to an appeal by the families.

As the article summarizes:

A three-judge panel from the Court of Appeals ruled the court did not have jurisdiction over the appeal of the case. Unless the lawyers for the families choose to appeal further, the confidential arbitration panel will resume work on the case.
…
The three-person arbitration panel includes William Webster, who was a director of the FBI and CIA under President Ronald Reagan; Edward Dreyfus, a New Jersey patent lawyer; and Jean Kalicki, an attorney specializing in international arbitration based in Washington, D.C.

JPML Denies Transfer in Auction Rate Securities Cases

Earlier this month, the Judicial Panel on Multidistrict Litigation denied motions to transfer from plaintiffs in twenty-nine separate actions. As the panel noted:

The actions before us are securities fraud actions filed in the wake of
widespread failure in the market for auction rate securities (ARS). While the
actions share some general common factual questions, no single action is against
more than one defendant entity (or its affiliates and/or employees). Further,
the actions involve different representations made to each purchaser of ARS,
which will necessarily vary from institution to institution (and perhaps from
ARS to ARS). The proponents of centralization have failed to convince us that
any common questions of fact among these actions are sufficiently complex and/or
numerous to justify Section 1407 transfer at this time. Alternatives to transfer
exist that may minimize whatever possibilities there might be of duplicative
discovery and/or inconsistent pretrial rulings.

These cases are indicative of the massive amount of litigation that will probably arise out of the recent stock market decline.

VBBE Releases Bar Exam Results

Today, the Virginia Board of Bar Examiners released the results from the July 2008 bar exam. The overall pass rate was 79.7%, with a 85% pass rate for first-time takers.

Magistrate Judge Recommends Denial of Injunctive Relief in Environmental Case

In a published report and recommendation released today, Magistrate Judge Pamela Sargent (W.D. Va.) addressed a variety of issues in Sierra Club v. Kempthorne. Interestingly, the court began its R&R as follows:

To a child of Appalachia, to see the mountains laid waste, whether by clear-cutting or strip mining, is to witness a dagger plunged into the very bosom from which you sprang and which has sustained you. Nonetheless, this court’s role in this case is not to pass judgment upon the policy decisions which allow such activities.

The Sierra Club and Southern Appalachian Mountain Stewards, Inc. filed suit against the Secretary of the Interior, seeking an order compelling the Secretary to issue a cessation order. The plaintiffs sought to prevent several companies from removing vegetation, constructing or improving roadways, or conducting any other “surface coal mining operations” on the land included in a permit application pending before the Virginia Department of Mines, Minerals & Energy. Specifically, the plaintiffs brought a citizens suit under 30 U.S.C. § 1270 for alleged violations of the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. §§ 1201 et seq.).
After substantial analysis, the court made the following recommendations:

1. The district court has subject matter jurisdiction over this case under 30 U.S.C. § 1270(a)(2);
2. Neither the federal nor Virginia’s statutory or regulatory schemes define “coal surface mining operations” to include the activities at issue in this case;
3. The Secretary has the discretion to determine whether the activities at issue in this case are “coal surface mining operations;”
4. The Secretary’s determination is binding on the court unless it is inconsistent with the regulations or is plainly erroneous;
5. The Secretary’s determination that the activities at issue were not “coal surface mining operations” is not inconsistent with the regulations and is not plainly erroneous;
6. The citizens suit provision of 30 U.S.C. § 1270(a)(2) allows a federal court to intervene only when the Secretary fails to act upon a nondiscretionary duty; and
7. The court should deny the plaintiffs’ request for entry of a permanent injunction.

To conclude, the court made the following observations:

It is difficult to imagine any commercial activity that has a more devastating effect on the land than strip mining. . . . The facts before the court in this case, however, clearly show that logging the steep mountains of Southwest Virginia poses many of the same environmental and safety concerns as strip mining. Nonetheless, it is not the role of this court, in this case, to tackle the difficult policy issues raised by the dangers presented to the environment and the occupiers of adjoining lands by logging. Those issues are best left to our federal and state legislators. The court is left only to hope that those issues will be addressed before a child of Appalachia dies beneath a boulder dislodged by logging activities.

Judge Reduces Jury Award in Emotional Distress Case

On Friday, Judge Ray Grubbs (Montgomery County Circuit Court) reduced a $350,000 jury award against Blacksburg to $50,000. Judge Grubbs also denied the town’s motion to set aside the verdict. An article from the Roanoke Times provides additional facts about the case:

Knight had filed a civil lawsuit against the town and the director of the Third Annual Greater Blacksburg Triathlon, held in 2000, claiming they were negligent in failing to warn passing motorists of the race course. Triathlon participant Gary Wayne Taylor, a 30-year-old sports promoter from Lynchburg, died midway through the competition after his bicycle crashed into Knight's car.
Knight told a jury in January that she sought counseling more than a year after the wreck for nightmares and other related trauma symptoms and asked for $750,000 in damages. The jury found the town negligent and awarded Knight $350,000.

In arguing that the verdict should be set aside, the town argued, inter alia, that it should be granted immunity, an argument that Judge Grubbs rejected.

But, Grubbs wrote, because Knight suffered no lasting physical injuries and her mental and emotional trauma were resolved within six months without interfering with her ability to work, the jury’s award was out of proportion to the injury.
Grubbs based his ruling on a Virginia statute that allows judges to reduce jury awards if they are excessive or based solely on sympathy for the plaintiff.

Both sides have indicated that an appeal to the Supreme Court of Virginia is possible. If so, the case would provide an opportunity for the court to again address the issue of damage awards for emotional distress.

D.C. Circuit to Hear Appeal Today in Landmark Tobacco Case

The D.C. Circuit is scheduled to hear arguments today in a landmark ruling against the tobacco industry. In 1999, the Justice Department brought a civil RICO case against several tobacco companies, claiming that they misled the public about the health hazards of smoking. In August 2006, District Court Judge Gladys Kessler found that the companies violated civil RICO (in a 1683-page opinion found here). However, she declined to order them to pay the billions of dollars in damages sought by the Justice Department (her 18-page remedial order can be found here). Notably, she did order that the companies pay legal fees, which the government estimates to be over $140 million. This article from the Washington Times summarizes additional aspects of her ruling:

Kessler, however, did order the companies to publish in newspapers and on their Web sites “corrective statements” on the adverse health effects and addictiveness of smoking and nicotine. She also ordered tobacco companies to stop labeling cigarettes as “low tar,” “light,” “ultra light” or “mild,” since such cigarettes have been found to be no safer than others because of how people smoke them.

In her ruling in the long-running case, the judge said, “Over the course of more than 50 years, defendants lied, misrepresented and deceived the American public, including smokers and the young people they avidly sought as ‘replacement smokers,’ about the devastating health effects of smoking and environmental tobacco smoke (secondhand smoke).”

Kessler, who presided over a nonjury trial in the case, said that adoption of a national stop-smoking program, as sought by the government, “would unquestionably serve the public interest” but that she was barred by an appeals court ruling that said remedies must be forward-looking and not penalties for past actions.

If upheld, the case could open the door for a flood of private civil RICO claims against the industry.

Woman Sues Motorola and Nextel for Injuries Allegedly Caused by Cell Phone Charger

According to an article in today’s Virginian-Pilot, a Knotts Island woman filed a $15 million suit in federal court this week against Motorola and Nextel, alleging that the negligent and careless design of a cell phone charger caused her to become blind in one eye. Specifically, "[the plaintiff] says . . . that she was blinded in her right eye after being struck by the phone jack and suffered other physical pain and mental anguish as a result." The article provides additional details about the suit:

On Sept. 7 [of 2005], while she was using the phone, “the coil cord of the car charger suddenly, precipitously and without warning, recoiled and otherwise snapped back, striking at and into the plaintiff's face and eye, hitting her in the right eye with the phone jack,” the lawsuit says.
…
The suit says that the packaging of the phone and charger should have included warnings that “serious injury could result from the use of such car chargers” and that “safety glasses should be worn when using such car chargers.” The warnings should also indicate that “a tight hold should always be kept on the car charger cord to avoid injury,” the suit states.

Fourth Circuit Affirms Denial of FRCP 60(b)(4), (6) Motions

Earlier today, in an unpublished decision, the Fourth Circuit affirmed a district court decision denying a plaintiff’s FRCP 60(b)(4) and 60(b)(6) motions in Wadley v. Equifax Information Services, LLC. The plaintiff sought relief from the court’s decision to grant the defendant’s motion for summary judgment on the plaintiff’s Fair Credit Reporting Act claims.

In Wadley, the plaintiff brought two separate actions against Equifax and Experian. After the Fourth Circuit found error and remanded his case against Experian, the plaintiff filed his Rule 60(b) motion in the Equifax case, arguing that since the district court used the same analysis to grant summary judgment for the defendant in both cases, the same error occurred.

The Fourth Circuit rejected the plaintiff's argument. After noting that the plaintiff made a “considered choice” not to appeal the order in the Equifax case, the court addressed the “reasonable time” requirement in FRCP 60(c)(1). According to the court,

In this case, Wadley waited almost two years after the district court’s adverse
grant of summary judgment in favor of Equifax to file his Rule 60(b) motion.
That he chose to wait for the litigation in this court as to the related appeal
to become final so he unnecessarily would not have to pay additional fees and
costs for an appeal as to Equifax is not a sufficient justification supporting
the relief he now seeks. Under these circumstances, we find this passage of time
was not reasonable.

The court went on to reject the plaintiff’s arguments under FRCP 60(b)(4) and (6). Quoting a prior decision, the court stated that “[a] judgment is not ‘void’ under Rule 60(b)(4) merely because it is erroneous.” Regarding FRCP 60(b)(6), because the decision was a strategic litigation decision, the court concluded that it was not an “extraordinary circumstance.”

Thus, “Wadley may not use Rule 60(b) as a vehicle to excuse his failure to seek review of the final judgment granted to Equifax almost two years earlier and from which he chose not to take an appeal.” Accordingly, the court affirmed the district court’s decision.

Amendments Proposed for FRCP 26 and 56

In August, the Judicial Conference Advisory Committee published for comment its proposed amendments to the Federal Rules. The report of the Civil Rules Advisory Committee outlines several proposed changes to FRCP 26 and 56.

The proposed amendments to Rule 26 attempt to address two issues. As summarized in this brochure from the Committee,

The first deals with expert witnesses who are not required to prepare a detailed
report under Rule 26(b)(2)(B). Under the proposed amendment to Rule 26(a)(2),
the party (not the expert witness) must disclose the subject matter of the
expected expert testimony and a summary of the expected facts and opinions. The
second topic applies the work-product protections of Rule 26(b)(3)(A) and (B) to
limit discovery of drafts of expert disclosure statements or reports and, with
three exceptions, of communications between expert witnesses and counsel
regardless of form (oral, written, electronic, or otherwise). The exceptions are
for those parts of the attorney-expert communications regarding compensation,
identifying facts or data considered by the expert in forming the opinions, and
identifying assumptions relied on by the expert in forming the opinions.

Revisions to Rule 56 were also proposed to provide a consistent procedure for summary judgment. According to the same source,

The proposed rule requires that unless the court orders a different procedure in
a case, a party moving for summary judgment must submit a statement of facts
that it asserts are not in genuine dispute and entitle it to summary judgment.
The statement must list the asserted undisputed material facts in separate,
numbered paragraphs, with citations to the record. The party opposing the motion
must file a response to the statement that addresses each fact by accepting,
disputing, or accepting it in part and disputing it in part, either generally or
for purposes of the motion only. The statement and response are separate from
the briefs. Other proposed changes include addressing the consequences of
failing to respond or responding in a way that does not conform to the rule and
recognizing the well-established practice of granting summary judgment on part
or all of a claim or defense.

New SCOTUS Term Begins Today

Oral arguments begin today in the Supreme Court’s new term. For an article summarizing the significant upcoming cases, see here. More specifically, here are some of the key cases coming up this term that are relevant to civil practitioners:

Altria Group v. Goode: Does the Federal Cigarette Labeling and Advertising Act preempt state tort claims for deceptive practices against tobacco manufacturers based on the marketing of “light” cigarettes? (First Circuit said no preemption in an opinion found here)

Vaden v. Discover Bank: Do federal courts have jurisdiction over motions to compel state-law arbitration claims that do not raise questions of federal law? (Fourth Circuit said yes in an opinion found here)

Philip Morris USA, Inc. v. Williams: Is the third time a charm for this punitive damages case? (see Oregon Supreme Court opinion here and SCOTUS's 2007 decision here)

Wyeth v. Levine: Does federal law preempt state tort claims based on drug labeling previously approved by the FDA? (Vermont Supreme Court said no preemption in an opinion found here)

Court Imposes Sanctions and Strikes Defense for Inadequate FRCP 30(b)(6) Designee

On Wednesday, Magistrate Judge Urbanski (W.D. Va.) addressed the issue of discovery sanctions in Spicer v. Universal Forest Products, a wrongful termination case. Of the various issues raised in the plaintiff's motion, what the court found “[m]ost disturbing of all [was] Universal’s abject failure to comply with the requirements of Fed. R. Civ. P. 30(b)(6).”

At his deposition, the company’s 30(b)(6) witness testified that he did no investigation into the topics listed in the deposition notice except to talk to the company’s counsel. Then, when plaintiff’s counsel asked about these conversations, the defendant’s counsel asserted attorney-client privilege. The court also noted that the company’s representative “was simply unaware of his role,” as he repeatedly stated that it was not his job to know certain relevant information, even though he admitted that this information “could have been obtained through investigation, had he done any.” Thus, the court concluded, “the 30(b)(6) deposition was a futile exercise for Spicer.” According to the court, “[t]he Federal Rules of Civil Procedure and case law require more of a corporation responding to a Rule 30(b)(6) deposition notice than Universal has done here.”

In its analysis, the court reiterated that a corporation “must make a good-faith effort to designate people with knowledge of the matter sought by the opposing party and to adequately prepare its representatives so that they may give complete, knowledgeable, and nonevasive answers in deposition.” When a designee lacks knowledge of relevant facts and the company does not designate a knowledgeable alternative, “[s]anctions may be properly imposed.” The company’s actions were not excused simply because it provided the plaintiff with discoverable information through non-30(b)(6) depositions and document production.

In the end, the court ordered Universal to pay costs and fees associated with the Rule 30(b)(6) notice and deposition, as well as the motion for sanctions. The court also struck one of Universal’s defenses because the corporate designee had no information on the topic and trial was imminent in the case. According to the court, “[a] party simply cannot disregard its obligations under the Federal Rules of Civil Procedure as Universal has in this case and thwart discovery on such a material issue.”

Second Boy Scout Files Suit Against California Meat Processor in Rockbridge County

Last week, another Boy Scout filed suit in Rockbridge County Circuit Court against S&S Foods after he contracted E. coli, allegedly from eating frozen hamburger patties supplied by S&S while at camp at the Goshen Scout Reservation. S&S Foods later recalled over 150,000 pounds of beef when it tested positive for E. coli.

In all, eighty-four people became sick while at the camp in July. This represents the second suit filed against S&S on behalf of an affected Boy Scout. (See here for a description of the first suit, including a copy of the complaint, and here for a posting by one of the attorneys for the plaintiff in both cases.)

W.D. Va. Sets Aside Jury Verdict in Corruption Case

On Monday, Chief Judge Jones (W.D. Va.) set aside jury verdicts against two corporate defendants totally $500,000 in Buchanan County v. Blankenship. In June, a jury found that Kenneth Stephens, acting as an agent of the two companies, had charged the county more than a reasonable value for flood relief work. The county also presented evidence that Stephens had paid bribes of as much as $300,000 to county officials (something he had been convicted of in a prior criminal trial). An article from today’s Richmond Times-Dispatch provides additional underlying facts of the case, which was part of a series of litigation:

The county’s attempt to collect money in a civil action followed the criminal
convictions three years ago of 16 people---among them county officials,
contractors and an employee of the Federal Emergency Management Agency---on
charges of bribery and fraud. The defendants were charged with swapping more
than $8 million in federally funded cleanup contracts for cash, guns, NASCAR
tickets and even prized coon hunting dogs. Although dog dealing was not a
central part of an investigation by the FBI and the Internal Revenue
Service, federal authorities came up with the name “Operation Big Coon Dog.”

In the civil suit, the county argued that two of the defendants were liable under Va. Code Ann. § 2.2-3123, which allows for the rescission of a government contract obtained through bribery. Under the statute, a contractor can only retain the reasonable value of property or services rendered, “with no increment for profit or commission.”

In granting the defendant’s motion to set aside the jury verdict, the court noted that:

While the undisputed payment of the bribes could have supported an inference
that the companies inflated their contract prices, there was no evidence by
which a reasonable jury could have determined the allocation of such amounts as
between the defendants. Although the companies shared a common agent, they
entered into separate contracts with the County, for separate services. The
evidence at trial could only have allowed the jury to speculate as to the proper
division of the bribes—and thus the proper division of damages—as between the
defendants.