Our recent post on the Supreme Court’s two “stream of commerce” personal jurisdiction decisions, produced an email to us from Arthur Fergenson, at Ansa Assuncao, LLP, who argued the J. McIntyre v. Nicastro case to the Supreme Court. His comments were sufficiently lengthy and astute, that we asked him if we could present
Last Friday, we put up a bare bones post about some expert rulings in HT (bare boned because our involvement in the litigation limits what we can say). We’ve now learned that the third order has been – not exactly modified but supplemented – and we don’t want any readers not getting fully accurate information.
There’s usually a moment in a trial, just before the first expert testifies, when the judge tells the jury how experts are different from other witnesses. Experts don’t have percipient, first-hand knowledge of the facts. Instead, they possess education, training, or experience that permits them to share helpful opinions with the jury. Such an instruction
The last couple days’ dialogue with our subscribers suggests that the blog’s email outage was uneven. Some subscribers may have lost email transmission of our post for more than a month. We’ve already apologized, but we think we should do more. Here’s a list of what we posted about – with links – between June
We can’t provide any commentary or analysis, because of our firm’s involvement in the litigation. But we thought our readers would benefit from knowing about three recent opinions excluding certain plaintiff experts in an HT case.
Just the holdings, then:
Opinion #1: Hines v. Wyeth, 2011 WL 2680814 (S.D.W. Va. July 8, 2011). Experts:
We gave you our quickie analysis of Goodyear Dunlop Tires Operations, S.A. v. Brown, ___ U.S. ___, 2011 WL 2518815 (U.S. June 27, 2011); and J. McIntyre Machinery, Ltd. v. Nicastro, ___ U.S. ___, 2011 WL 2518811 (U.S. June 27, 2011), here, the day after those cases were decided. We weren’t alone. Our partner, Sean Wajert, analyzed these cases on his blog the day after. The Prawfs’ network was even quicker out of the blocks than we were, and later posted an even more interesting followup here. SCOTUSblog posted an article about the two cases here. There’s lots more, see here and here.
This post, however, is “2.0.” We’re not going to rehash (much) the facts of Brown and Nicastro or offer detailed point-by-point analysis of the reasoning. We already did that. Today we’re thinking in terms of what the Court did, and how that affects what we do going forward.
Initially, as we pointed out back when the Court first granted certiorari, both Brown and Nicastro were relative outliers. Both of them pushed the jurisdictional envelope pretty hard.
Brown held that there could be general personal jurisdiction – where a defendant could be sued about anything, such as a Korean business deal gone awry – based solely on a “stream of commerce” test if a few of its products (a few thousand tires (or as they say in Europe, “tyres”) out of millions sold) ended up in the jurisdiction. Under that rationale, the plaintiff in Brown, an in-state resident injured abroad, could probably have brought the same suit in most, if not all, the states in the country, since some tires were probably shipped to each state. That ruling easily lent itself to apocalyptic “what if” hypotheticals of remote and overlapping jurisdiction. It was in our minds, a “cert. granted with intent to reverse” waiting to happen.Continue Reading Personal Jurisdiction 2.0
We’d like to apologize to those of you (all 700+) who subscribe to our email feed through the Google Group function. Somehow, we’re not sure how, the Google Group became separated from our account. We don’t know when this started, but yesterday we started getting complaints and investigated. We believe it has now been fixed.
Was anyone else out there struck, like we were, that the Court described the preemptive FDA action it recognized in Pliva, Inc. v. Mensing, ___ U.S. ___, 2011 WL 2472790 (U.S. June 23, 2011), in terms of “equivalence”? Here’s what we mean:
Under this law [Hatch-Waxman], “generic drugs” can gain FDA approval simply by
We’ve discussed the so-called “Berrier question” – whether the Third Circuit’s prediction that Pennsylvania law would switch to the Third Restatement from the old Azzarello form of super-strict liability should continue to apply – before. Our position is that stare decisis required application of Berrier, until the Pennsylvania Supreme Court said otherwise, and