Legal Protection and Reasonable Treatment for
Corporations Throughout the Entire Product Life Cycle

Upcoming Events

Click on the image to view the Fall 2021 Conference Program

Welcome New Members







Rachel M. Lary
Lightfoot, Franklin & White LLC



Carlos M. Lazatin
O'Melveny & Myers LLP



Brent Moffett
Moffett Packus and Sims



Sean P. Fahey
Troutman Pepper Hamilton Sanders LLP



William D. Purnell
Bowman and Brooke LLP



Reid Carpenter
Lightfoot, Franklin & White LLC



Clem C. Trischler
Pietragallo Gordon Alfano Bosick & Raspanti, LLP



Joseph L. McReynolds
Deutsch Kerrigan LLP



Lem E. Montgomery III
Butler Snow LLP



Andrew Tauber
Winston & Strawn LLP


Click here to see the full list of new members

Members in the News

PLAC’s Mike Zogby Speaks with Law360 about NJ’s Proposal Regarding 3rd-Party Funding Disclosures

April 27, 2021
Law360 turned to PLAC member Michael C. Zogby of Faegre Drinker for insight about the U.S. District Court for the District of New Jersey’s recent proposed amendment to its local civil rules, which would require litigants to disclose the identities of outside funders and whether they have input on litigation decisions. Zogby, deputy leader of the firm’s product liability and mass torts practice and co-chair of the health & life sciences litigation team, shared commentary with associate Kaitlyn Stone.

Zogby told Law360 that he believes the court has the chance to be a leader in terms of third-party litigation funding disclosure with its proposed rule change. “We have so many large-scale, important mass actions right now that this is a perfect example, and timetable, for the court to put in transparency and disclosure guidance to really help with the cases that are being filed in the district,” he explained. “It’s long overdue nationally, but this does show that the District of New Jersey is ahead of the curve in making sure that a rule is on the books.”

Kaitlyn Stone, one of PLAC’s emerging leaders, agreed with Zogby, saying “It’s just another example of the District of New Jersey being on the forefront of an issue. They really are on top of issues, and even if we would have liked to have seen it a bit earlier, they still are ahead of the curve in terms of what’s been happening nationally.”

Read their full commentary here (subscription to Law360 required).

January 22, 2021
PLAC Member Ted Boutrous Named Top Lawyer of the Decade by Daily Journal


Theodore J. Boutrous Jr.
Gibson, Dunn & Crutcher LLP

Click here to read the full article


We are pleased to share with you the current version of the Doing Business In Brazil, drafted by Souto Correa Advogados, a full service law firm in Brazil. Please reach out to PLAC member Roberta Feiten with questions or if you would like more information.


“What Real Jurors Like/Dislike About Lawyers”
As courts are slowly resuming proceedings including some forms of jury trials, trial counsel, their trial teams, litigators generally and claims supervisors need to recalibrate their thinking about jurors.


In Re: Amendment to Florida Rule of Civil Procedure 1.280, No. SC21-929

PLAC is pleased to join ADTA, ATRA, DRI, IADC, The Washington Legal Foundation, and other national defense bar groups, business associations, and civil justice/public policy organizations in a letter to the Florida Supreme Court supporting its recent rule amendment codifying the “apex doctrine” and extending it to current and former corporate officers to shield such individuals from abusive discovery. Many thanks to Mark Behrens and his team at Shook, Hardy & Bacon who prepared the letter and assembled the coalition of defense organizations to voice their support for the amendment.

LCJ Launches New ‘Don’t Say Daubert’ Web Portal as Advisory Committee on Evidence Rules Solicits Comments on Amendment to FRE 702

PLAC is teaming up with Lawyers for Civil Justice and other defense bar organizations to support a proposed amendment to improve and clarify FRE 702.  Attached is a message from LCJ describing the amendment and providing helpful background information.  We expect to submit a comment to the Advisory Committee on Evidence Rules on behalf of our members in the next several months.  If you have an example of erroneous judicial application of expert evidence admissibility standards you would like PLAC to consider for its comment, please send it to [email protected] by November 1, 2021.

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LCJ Launches New ‘Don’t Say Daubert’ Web Portal as Advisory Committee on Evidence Rules Solicits Comments on Amendment to FRE 702

New resource page highlights courts’ repeated misapplication of expert evidence admissibility standards, encourages public to submit comments supporting proposed reforms

 

Arlington, VA – August 9 – Lawyers for Civil Justice (LCJ) – Today, Lawyers for Civil Justice launched a new web portal focused on expert evidence reform, Don’t Say Daubert, highlighting the need for amendment to Federal Rule of Evidence (FRE) 702. The launch of the website comes as the Advisory Committee on Evidence Rules invites public comments on a proposed amendment to FRE 702 that would clarify the widely misunderstood standards for expert evidence admissibility in U.S. federal courts.

 

“No matter how you pronounce it, the famous Daubert Supreme Court case doesn’t set the standards for expert evidence admissibility – Rule 702 does,” LCJ General Counsel Alex Dahl said. “The amendment process is a perfect time to get rid of the inaccurate slang by saying ‘Rule 702’ when referring to the standards for admitting expert testimony. We strongly encourage members of the bar to submit comments in support of the Advisory Committee’s amendment, which will clarify the standards for expert evidence and bring greater fairness to our civil justice system.”

 

Since the Supreme Court’s landmark 1993 decision in Daubert v. Merrell Dow Pharmaceuticals, the word “Daubert” has become a de facto shorthand for the standard by which expert evidence is evaluated for admissibility before a federal civil jury. However, it’s Federal FRE 702, not Daubert, that sets the standard that courts must follow in determining whether expert testimony is admissible.

 

The use of ‘Daubert’ instead of ‘Rule 702’ affects people’s understanding of what standards apply to those motions. While the ‘Daubert standard’ is based on a lineage of case law, the more recent Rule 702 standard is based on the 2000 amendment to the rule approved by the Supreme Court and Congress, codifying it into law. The current proposed amendment to Rule 702 would further clarify that courts are responsible for determining the admissibility of expert opinion testimony, rather than leaving fundamental questions about the basis of expert opinions to a jury. The widespread misunderstanding of expert evidence admissibility standards in both trial and appellate courts within every federal circuit for more than two decades have led to decisions that are patently incompatible with Rule 702.

 

The web portal outlines the history behind expert evidence admissibility standards, which shows that the all-too-common invocation of “the Daubert standard” should be discarded and replaced with “the Rule 702 standard.”

 

The Advisory Committee on Evidence Rules opened its six-month public comment period on Friday, August 6. To learn why FRE 702 needs to be amended and how to submit a comment on the proposed rulemaking, visit www.DontSayDaubert.com.

 

To read the full text of the proposed amendment to FRE 702, click here.

Amendments to Florida Rule of Civil Procedure 1.510

May 4, 2021

As a result of the Wilsonart case, where PLAC filed an amicus brief recommending adoption of the federal summary judgement rule, the Florida Supreme Court has adopted almost all of the text of Federal Rule of Civil Procedure 56. As described in the court's opinion, the new rule in Florida will help eliminate frivolous lawsuits before they get to trial. A few highlights about the new rule.

  • First, while federal rule 56(a) says that the court should state on the record its reasons for granting or denying a summary judgment motion, new rule 1.510(a) says that the court shall do so.
  • Second, the new Florida rule, unlike its federal counterpart, requires the movant to file its summary judgment motion at least 40 days before the hearing.
  • Finally, note that the new rule will apply to all summary judgment motions decided after May 1, 2021. If a motion for summary judgment has already been denied under the pre-amendment rule, the parties should have a reasonable opportunity to file a renewed motion under the new rule.

 


Wendy F. Lumish
Bowman and Brooke LLP

THE U.S. SUPREME COURT’S FORD MOTOR COMPANY DECISION: JURISDICTIONAL SYMPATHY PREVAILS OVER LOGIC

April 22, 2021

David R. Geiger

In its recent decision in Ford Mtr. Co. v. Montana Eighth Judicial Dist. Ct., the Supreme Court held due process permitted jurisdiction over an out-of-state vehicle manufacturer for product liability claims brought by forum residents following a forum accident, even though defendant did not design, manufacture or sell plaintiffs’ vehicles in the forum. The Court concluded defendant’s current advertising, sales and (purported) servicing of the same vehicle models were sufficiently “related” contacts to render jurisdiction fair.

PLAC’s amicus brief writer, Dave Geiger, has authored an article arguing the Court purports to rely on precedent and principles that do not support its decision, and the decision introduces vast uncertainty into a legal area the Court painstakingly clarified over the last decade. Questions raised include whether there is jurisdiction only if plaintiff’s residence or accident was in the forum or whether both are required; whether sales other than of the accident model count as sufficiently “related;” whether the Court really intended to support jurisdiction over past events by the manufacturer’s current forum contacts; and whether the Court really intended to impute to the manufacturer vehicle servicing performed by independent dealers.

To read the full article, published by the Washington Legal Foundation, click here.


David R. Geiger
Foley Hoag LLP

Featured Amicus Brief

On April 2, 2021, PLAC filed a brief with the United States Supreme Court in Johnson & Johnson v Ingham, No. 20-1223. PLAC’s brief urges the Court to grant review of a decision by the Missouri Court of Appeals holding that a consolidated trial of the claims of 22 asbestos-in-talc ovarian cancer plaintiffs did not violate due process. The trial resulted in identical $25 million compensatory damages awards and an omnibus $4.05 billion punitive damages award.

The Missouri court concluded any jury confusion or prejudice was presumed cured by the court’s instruction that the jury decide each case individually - even though those cases involved different exposures to different products in different amounts over different time periods, different clinical courses, different results and different underlying risk factors, and were governed by the laws of twelve different states. PLAC’s brief argues due process imposes limits on the consolidation of civil—and especially mass tort—cases for trial, presenting an important issue that has not been, but should be, addressed by the Court. After the Court and Congress dramatically curtailed abusive class actions through decisions such as Amchem Prods. v. Windsor and Wal-Mart Stores v. Dukes, and the Class Action Fairness Act, plaintiffs’ counsel have increasingly turned to consolidated trials of multiple plaintiffs’ claims to obtain the same aggregated evidence and coercive benefits class actions offer. With multi-district litigation making up a majority of the federal civil docket, and with hundreds of thousands of tort suits filed annually in state courts, many of them also aggregated in MDL-like proceedings, opportunities for aggregated trials are rife. COVID-19 backlogs will only make consolidation more tempting for “efficiency” purposes.

Judicial decisions, experimental social science studies and studies of actual jury verdicts all demonstrate that consolidated trials pose severe threats to defendants’ fair trial rights. It is impossible for jurors to keep individual cases separate, the aggregate evidence makes the jury more likely to find both liability and causation, and the jury inevitably hears evidence that is inadmissible in some individual cases. This case was a paradigm example of such unfairness, and the Missouri court’s ruling that jury instructions cured any problems not only raises the important due process issue but exacerbates a split with other state and federal appellate courts. Hence, the Court should grant review.

PLAC’s brief was authored by David R. Geiger, Foley Hoag LLP, Seaport West, 155 Seaport Boulevard, Boston, MA 02210

David R. Geiger
Foley Hoag LLP

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Amicus Program

PLAC's mission is to obtain fairness and balance in the common law of product liability. A primary tool to accomplish this mission is PLAC's Amicus Curiae Program, often called “The heart and soul of PLAC.”

PLAC has filed more than 1,100 amicus briefs, written by some of the nation’s top appellate practitioners. Our briefs have been accepted in virtually every state and federal court in the U.S. They are routinely acknowledged, quoted, and praised by courts in published opinions.

PLAC’s amicus briefs help shape the law for all manufacturers on important issues.

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Our Mission

PLAC is a specialty bar association focusing on complex litigation and regulatory issues in the area of product development and product liability. Our not-for-profit association of product manufacturers, suppliers, retailers and select regulatory, litigation and appellate professionals who work to shape the common law of product liability and complex regulation, provide guidance on changing regulations, and strategically help corporations manage risk throughout the entire product lifecycle. PLAC is a unique resource for companies who must defend their products’ integrity and their companies’ reputation.