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"Litigators' Immunity From Non-Client Lawsuits"
In their zeal to represent clients with winning excellence, litigators often say or do things that hurt non-clients such as adverse parties and counsel as well as third person non-parties. For policy reasons, the law provides litigators with immunity from civil liability to non-clients. The doctrine often is called the "Litigation Privilege". Is the immunity from civil suit "absolute" or "qualified"? What if the attorney violates an ethical rule? Does the immunity still hold? Where is the line to be drawn and non-client suits to be permitted? And, oh yes, then there's that pesky N.Y. Judiciary Law Section 487 to keep in mind. The questions are important since surveys suggest that some 20% of lawsuits filed versus lawyers are brought by non-client claimants. The column briefly surveys the landscape, provides information sources for further research and focuses on a hot-off-the-press Texas Supreme Court decision where a products liability defense firm and experts it hired were independently sued and accused of spoliation of evidence.
Read Full Article

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‘Residual Hearsay’ Exception: Recent Changes Bring More Muscle'
Significant changes were made to Federal Evidence Rule 807, effective December 1, 2020. The so-called Residual Hearsay Exception would allow into evidence hearsay statements even if they don't fall within the array of "standard" hearsay exceptions found in FRE 803 and 804 -- provided certain conditions are met. The Residual Exception has not been used so often in the past but the changes likely will make it more of a "go-to" weapon in litigation. Judges are vested with lots of discretion and that, too, may make Rule 807 more attractive for them to use as an admissibility mechanism. Further, counsel can seek a Rule 104 hearing on admissibility of the item but keep in mind that the court is not bound by the rules of evidence in such hearings, except for privilege. The risks need to be assessed.
Click here to read the article.

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Congratulations to PLAC Member De Martenson of Huie Law for being inducted into the 2019 Class of Fellows by the Alabama Law Foundation. Click here to read the full press release.

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For more news, click here.

PLAC (formerly the Product Liability Advisory Council) 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.

PLAC submitted an amicus brief in support of defendant's petition for certiorari in an aviation product liability preemption case.
For over two decades, the lower courts have wrestled with the question whether the Federal Aviation Act and regulations preempt the field as to aviation safety standards. In this case, the Third Circuit rejected field preemption but suggested that the District Court consider conflict preemption instead. The trial court granted summary judgment on conflict preemption, but a different panel reversed on appeal (with one judge dissenting). In so doing, the Third Circuit disregarded the Supreme Court's recent holdings in PLIVA v. Mensing, 564 U.S. 604 (2011) and Mutual Pharmaceutical Co., Inc. v. Bartlett, 570 U.S. 472 (2013). Both cases held that [t]he question for 'impossibility' is whether the private party could independently do under federal law what state law requires of it." In the current matter, the applicable regulations require that any alteration to the design of the airplane, the engine, or the carburetor required prior approval of the FAA. Nevertheless, the Third Circuit held that compliance with state and federal law was not impossible because defendant "has made numerous changes to the type certificate . . ., which the FAA approved in short order").

PLAC's brief in support of the defendant supported cert on both field and conflict preemption. The National Association of Manufacturers joined PLAC's brief.

    

OEM/Supplier Legal Summit:  PLAC is hosting its second OEM/Supplier Legal Summit on June 3, 2020 at the Detroit Athletic Club.  Click here to register.

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Webinars: PLAC hosts a variety of webinars for members and friends of the association