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Amicus Curiae Briefs

Amicus Curiae 

The IADC Amicus Curiae program has been developed in an attempt to further improve the civil justice system. gavel3The IADC regularly files briefs in pending cases throughout the United States to support a wide variety of defense issues of broad application. The IADC supports a justice system in which plaintiffs are fairly compensated for genuine injuries, responsible defendants are held liable only for appropriate damages, and non-responsible defendants are exonerated without unreasonable cost.

The Amicus Curiae program is a valuable benefit to IADC members, as only IADC members can request amicus support from the organization. The Amicus Curiae Committee receives an annual budget for preparing briefs, and brief writers receive an honorarium for their work. Cases presented to the Amicus Curiae Committee are carefully screened and selected to reach a wide variety of jurisdictions, as well as a broad range of legal issues. Briefs are carefully prepared and reviewed before filing.

Although the IADC is an international organization, the Amicus Curiae program is presently limited to the United States. Most countries do not permit non-parties to file briefs in pending cases.

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Guidelines for IADC Amicus Curiae Briefs

The IADC adheres to certain guidelines in evaluating cases to determine whether IADC participation is appropriate. IADC members requesting IADC amicus curiae support are advised to review these guidelines before making a request.

IADC Member Request: An IADC member must make a request for amicus curiae support to warrant the IADC’s participation in the case. If an IADC member represents an adverse party in the case, the IADC will consider this in deciding whether to provide amicus curiae support.

As a general rule, the IADC will consider providing amicus curiae support in cases pending only in a state supreme court or the United States Supreme Court. In cases where the appellate court has discretionary jurisdiction, the Amicus Curiae Committee will recommend whether to participate at the initial stage of the appeal or only after review is granted. The IADC will consider providing amicus curiae support in the federal circuit courts of appeals and state intermediate appellate courts only in exceptional cases.

Issues Presented: The IADC will consider whether there is a clear and obvious defense position presented in the case under consideration. The issue(s) to be decided should also be of broad application. The Committee will also consider the facts of the case in making its recommendation to the Board of Directors. *Guidelines approved by the IADC Board of Directors April 2006

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Requesting an IADC Amicus Curiae Brief 

The IADC Amicus Curiae Committee regularly reviews requests for amicus participation, making recommendations to the Board of Directors. If you have a case that you believe merits IADC participation, the form to request review and PDF is available on this website along with the requisite guidelines.

After completing the form, please send it to the IADC office, or email it to mkurzak@iadclaw.org. You may also contact IADC Amicus Curiae Committee Chair Mary-Christine Sungaila at mc.sungaila@haynesboone.com for further information. A member of the Amicus Curiae Committee may contact you to obtain additional information about the case.

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The Amicus Curiae Committee 

The Amicus Curiae Committee is one of the only few IADC Committees where members are appointed by the President of the organization. The Committee is comprised primarily of appellate practitioners and appellate specialists who regularly practice before state and federal appellate courts. Members of the Committee must agree to write one brief per year if requested to do so while serving on the Committee. If you are interested in being considered for appointment to the Committee, please contact the IADC office or send an email to mkurzak@iadclaw.org.

Case Review Procedures: The Amicus Curiae Committee conducts the initial review of the case to determine whether IADC participation would be appropriate. If a majority of the Committee decides that the IADC should file an amicus brief in the case, the Committee will then present that recommendation to the Board of Directors. The Board of Directors will make the final determination as to whether an IADC amicus curiae brief is appropriate in the case.

Preparation of the Brief: If the IADC decides to participate as an amicus, the Committee chair will appoint counsel to draft the brief. As a general rule, members of the Committee prepare the amicus briefs on behalf of the IADC. However, lawyers who are not committee members may also be retained to prepare the IADC brief in an appropriate case, or to serve as local counsel. If you are interested in writing a brief in your jurisdiction or serving as local counsel, please contact the Amicus Committee Chair, Mary-Christine Sungaila at mc.sungaila@haynesboone.com.

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Recent IADC Amicus Briefs

IADC Amicus Brief Filed: ABM Industries, Inc. v. Marley Castro and Lucia Marmolejo (6/24/2016)

The brief the IADC filed in ABM Industries, Inc., ABM Onsite Services-West, Inc., ABM Services, Inc., ABM Janitorial Services-Northern California, Inc., and ABM Janitorial Services, Inc. v. Marley Castro and Lucia Marmolejo was submitted to the United States Court of Appeals for the Ninth Circuit and can be found here.

IADC Amicus Brief Filed: Michael Williams v. Marshalls of CA, LLC (5/3/2016)

The brief the IADC filed in Michael Williams v. Superior Court of California for the County of Los Angeles, Marshalls of CA, LLC was submitted to the Los Angeles County Superior Court and can be found here.

IADC Amicus Brief Filed: Microsoft Corporation v. Seth Baker, et al. (3/18/2016)

The brief the IADC filed in Microsoft Corporation v. Seth Baker, et al. that was submitted to the United States Supreme Court can be found here.

IADC Amicus Brief Filed: Black & Decker (U.S.), Inc., et al., v. SD3, LLC and SawStop LLC (2/26/2016)

The brief the IADC filed in Black & Decker (U.S.), Inc., et al., v. SD3 LLC and SawStop LLC can be found here.

IADC Amicus Brief Filed: Exxon Mobil Corporation and Exxon Mobil Oil Corporation v. State of New Hampshire (2/19/2016)

The brief the IADC filed in Exxon Mobil Corporation and Exxon Mobil Oil Corporation v. State of New Hampshire can be found here.

IADC Amicus Brief Filed: Cogent Communications, Inc. v. Joan Ambrosio, et al. (1/28/2016)

The brief the IADC filed in Cogent Communications, Inc. v. Joan Ambrosio, et al. can be found here.

IADC Amicus Brief Filed: The Proctor & Gample Company v. Dino Rikos, et al. (1/29/2016)

The brief the IADC filed in The Proctor & Gamble Company v. Dino Rikos, et al. can be found here.

IADC Amicus Brief Filed: McGill v. Citibank (1/19/2016)

The brief the IADC filed in McGill v. Citibank can be found here.

IADC Amicus Brief Filed: Dickey's Barbecue Restaurants, Inc., et. al. v. Chorley Enterprises, Inc., et. al. (1/4/2016)

The brief the IADC filed in Dickey's Barbecue Restaurants, Inc., et. al. v. Chorley Enterprises, Inc., et. al. can be found here.

IADC Amicus Brief Filed: MHN Government Services, Inc. v. Thomas Zaborowski, et al. (12/2/2015)

The brief the IADC filed in MHN Government Services, Inc. v. Thomas Zaborowski, et al. can be found here.

IADC Amicus Brief Filed: Microsoft Corp. v. Baker (11/12/2015)

The brief the IADC filed in Microsoft Corp. v. Baker can be found here.

IADC Amicus Brief Filed: Tyson Foods v. Bouaphakeo (8/14/2015)

The brief the IADC filed in Tyson Foods v. Bouaphakeo can be found here.

IADC Amicus Brief Filed: Spokeo, Inc. v. Robins (Chamber of Commerce of the United States of America) (7/9/2015)

The brief the IADC filed in Spokeo, Inc. v. Robins can be found here.

IADC Amicus Brief Filed: DirecTV v. Imburgia (6/5/2015)

The brief the IADC filed in DirecTV v. Imburgia can be found here.

IADC Amicus Letter in Support of Petition for Writ of Mandate: Access Business Group LLC v. The Superior Court of Orange County (4/13/2015)

The IADC filed an amicus letter in support of petition for writ of mandate in Access Business Group LLC v. The Superior Court of Orange County, which can be found here.

IADC Amicus Summary: Ramos v. Brenntag Specialties, California Supreme Court (3/19/2015)

In Ramos v. Brenntag Specialties, the California Supreme Court has agreed to consider whether a supplier of multiuse raw material can be responsible for injuries allegedly caused while the material is subjected to the manufacturing processes by an intermediary purchaser, without any input from or control by the supplier. The IADC joined with the Federation of Defense and Corporate Counsel (FDCC) in urging the California Supreme Court to adopt the sophisticated purchaser doctrine for the same reasons it adopted the sophisticated user doctrine in Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 71. Under the sophisticated purchaser doctrine, a manufacturer would have no duty to warn an employee of the dangers of a product if the employer who purchased the product was sophisticated and knew or should have known of the product’s dangers. The sophisticated purchaser doctrine recognizes that where an employer already knows or should know of a danger, a further warning is not necessary. It also recognizes the employer’s independent duty to maintain safe working conditions and warn its employees about workplace dangers. This is particularly true where, as here, the aluminum was not hazardous when it was purchased in its raw form, and the purchaser has more knowledge about its own manufacturing processes that released purportedly hazardous fumes when the aluminum was melted.

The brief, prepared by Amicus Chair M.C. Sungaila of Snell & Wilmer L.L.P., can be found here.

IADC Amicus Summary: Take Home Asbestos Cases, California Supreme Court (3/12/2015)

The California Supreme Court, in two separate cases, is set to determine the existence and scope of a duty of premises owners and employers to those exposed to asbestos through particles carried on the clothing of its employees. (Kesner v. S.C. (Pneumo Abex LLC) (Cal. 2014) 175 Cal.Rptr.3d 810; Haver v. BNSF R. Co. (Cal. 2014) 175 Cal.Rptr.3d 810. In Haver, plaintiffs sued on a premises liability theory, alleging that the employee’s wife was exposed to asbestos carried home from work on her husband’s body and clothing. In Kesner, plaintiff alleged that he was exposed as a child to asbestos fibers from the clothing of his uncle, a Pneumo Abex employee, when he visited his uncle’s house. The majority of states that have considered the question of liability for take-home asbestos have determined that the law does not impose a duty to protect against such exposure, citing the burden it would place on employers and the community as a result of claims filed by a potentially limitless pool of plaintiffs.

The IADC, together with the Federation of Defense & Corporate Counsel, submitted an amicus brief urging the California Supreme Court to reject recognition of a duty extending from employers to nonemployee plaintiffs in take-home exposure asbestos cases such as these based on two additional policy concerns beyond those briefed by the parties: the intersection between the state’s already burgeoning asbestos docket and the state court budget crisis, which together could significantly limit access to justice.

The briefs, authored by IADC member and Amicus Committee Chair M.C. Sungaila of Snell & Wilmer, can be found here and here.

IADC Amicus Summary: Visiting Nurse Ass'n of Florida, Inc. v. Jupiter Med. Ctr., Inc. (3/9/2015)

The Florida Supreme Court, in considering a challenge to an underlying arbitral award that construed a contract in a way that violated laws prohibiting kickbacks for referrals of Medicare patients, waded into a split of authority concerning the interpretation of the U.S. Supreme Court’s decision in Hall Street and the scope of arbitral review, and held that the award could not be vacated. In so doing, the Florida court ignored longstanding United States Supreme Court precedent stating that courts can neither enforce illegal contracts nor enforce arbitral awards that would condone illegal conduct, and added to the already well-developed split of authority concerning whether any judicially created grounds for vacatur survive Hall Street.

The IADC, in conjunction with the Florida Hospital Association, submitted an amicus brief in Visiting Nurse Ass’n of Florida, Inc. v. Jupiter Med. Ctr., Inc. in support of Jupiter Medical Center’s petition for writ of certiorari in this case, urging the Supreme Court to choose this case as the vehicle for addressing the split of authority because it allows the Court to consider one of the most fundamental judicially created grounds for vacating an arbitral award under the FAA: the illegality of a contract in violation of public policy.

The brief, authored by IADC member and Amicus Committee Chair M.C. Sungaila of Snell & Wilmer, can be found here

IADC Joins Industry and Medical Amici Coalition in Support of Daubert Standard in District of Columbia Courts (2/23/2015)

Following up on its successful amicus effort to secure the D.C. Court of Appeals's en banc review of the question whether the District of Columbia should join the majority of state jurisdictions to adopt Daubert, IADC has joined in a coalition amicus brief on the merits in favor of the Daubert rule. The IADC coalition amici brief explains how the gatekeeping function set forth in Federal Rule of Evidence 702 and Daubert fits within the broader context of D.C. courts' well-established role as gatekeepers against the admissibility of all types of unreliable evidence.

The Daubert rule against admission of unreliable expert testimony is itself premised upon three general evidentiary protections against unreliable evidence that are each firmly entrenched in D.C. law. First, courts are required to preliminarily assess the admissibility of evidence, even where such assessment turns on questions of fact. Second, courts must be particularly wary of evidence that is not based upon firsthand knowledge because such evidence lacks a basic safeguard of reliability. Third, courts should apply additional reliability screens on certain types of evidence that may have an especially powerful impact on a jury.

Each of these principles is routinely applied in D.C. courts in connection with a variety of evidentiary rules, including rules governing hearsay, percipient witness testimony, the content of writings and recordings, the identification of criminal suspects, and demonstrative evidence. As such, the amici brief explains, the adoption of Daubert would not mark a break from the District’s traditional evidentiary rules but, to the contrary, would subject expert testimony to the same type of judicial scrutiny that has long been applied to other evidence that raises similar reliability concerns.

IADC was joined on this coalition amici brief by the U.S. Chamber of Commerce, the Medical Society of the District of Columbia, the American Medical Association, the Business Roundtable, the National Association of Manufacturers, the Pharmaceutical Research and Manufacturers of America, the Association of Corporate Counsel, and the National Federation of Independent Business Small Business Legal Center.

The amici brief was prepared by IADC member Eric G. Lasker of Hollingsworth LLP, and his partner, Joe G. Hollingsworth. The brief is available here.

Pennsylvania Adopts New Products Liability Approach (6/5/2013)

In June 2013, IADC filed an amicus brief recommending that the Pennsylvania Supreme Court abandon its unworkable strict products liability framework in favor of the more balanced approach of the Restatement (Third) of Torts: Products Liability. For nearly forty years, Pennsylvania juries hearing design defect cases have been instructed that the manufacturer is the guarantor of product safety, that the product must have “every element necessary to make it safe for its intended use,” and that the product should be “without any condition that makes it unsafe for its intended use.” Plaintiffs bore no burden of proof as to risk/utility balancing, which juries were not even permitted to consider. Manufacturers were limited in presenting their defense. Evidence suggesting due care on their part, or in some instances a lack of due care on the part of the product’s user, was frequently prohibited. The result was an unlevel playing field.

Last month the court handed down its decision, and while the court decided against adopting the Restatement Third approach, it squarely rejected the most troubling features of the old regime. In their place the court chose a blended consumer expectation and risk/utility test, similar to California’s, which allows a plaintiff to show defect by proving that 1) the danger is unknowable and unacceptable to the average or ordinary consumer, or 2) a reasonable person would conclude the probability and seriousness of harm caused by the product outweigh the burden or cost of taking precautions. There is no doubt the court’s out with the old will be viewed as a benefit to manufacturers, but given the many questions raised, and left unanswered, by the court’s opinion, how much of a benefit is still to be determined.

IADC member Bill Conroy handled the appeal in this case.

The IADC amicus brief was authored by IADC member Joseph E. O'Neil and Thomas J. Finarelli of Lavin O'Neil Cedrone & DiSipio, William J. Ricci of Ricci Tyrrell Johnson & Grey, and Scott Toomey of Littleton Joyce Ughetta Park & Kelly LLP.

IADC Amicus Coalition Successfully Urges D.C. Court of Appeals to Reconsider the Frye Test for Expert Testimony (2/23/2015)

On Wednesday, December 10, 2014, at the urging of the IADC and other coalition amici, the D.C. Court of Appeals accepted en banc review in Murray v. Motorola Inc., No. 14-DA-18 (D.C.) to determine whether D.C. will join the large majority of other state jurisdictions and abandon the antiquated Frye "general acceptance" standard for expert admissibility in favor of Daubert's requirement of scientific reliability and relevance.

In urging the District of Columbia Court of Appeals to grant review, IADC and the other amici explained that the question before the Court was not a choice between District of Columbia and federal law but rather a choice between the past and the present. The federal D.C. Circuit in 1923 could not have anticipated the nature and extent of expert testimony that now defines the modern practice of civil and criminal litigation. Further, abandoning Frye and embracing Daubert would make the judicial task easier, by allowing D.C. judges to tap into a wealth of analysis on virtually any expert admissibility determination from other jurisdictions that apply Daubert.

The D.C. Court of Appeals has ordered merits briefing over the next 10 weeks and will hear argument in May 2015.

IADC's amici brief was authored by IADC member Eric Lasker of Hollingsworth LLP and his partner, Joe Hollingsworth. The United States Chamber of Commerce, the National Association of Manufacturers, and the National Federation of Independent Business joined IADC on the brief.

U.S. Supreme Court Rejects Presumption Against Removing CAFA Cases to Federal Court (5/29/2014)

The U.S. Supreme Court has overturned a lower court decision that made it much more difficult for out-of-state defendants to remove lawsuits from state court to federal court. The decision in Dart Cherokee Basin Operating Co. v. Owens marked a major victory for the IADC, Washington Legal Foundation, and Federation of Defense and Corporate Counsel, whose brief in the case argued that the district court’s decision relied on an extra-statutory presumption against removal that needed to be corrected.

The Supreme Court agreed that the district court’s decision to remand the case to state court was based in part on its erroneous application of a presumption against removal - a rule that federal courts must “narrowly construe” removal statutes and resolve all doubts in favor of remand. By a 5-4 vote, the Court agreed that no such presumption exists when, as here, removal is sought pursuant to the Class Action Fairness Act of 2005 (CAFA). In Justice Ginsburg’s words for the majority, “[N]o antiremoval presumption attends cases invoking CAFA, which Congress enacted to facilitate adjudication of certain class actions in federal court.” The IADC, FDCC, and Washington Legal Foundation coalition brief focused on the presumption argument relied on by the Court, while the parties' briefs did not.

The amicus brief was prepared by Richard Samp and Cory Andrews at Washington Legal Foundation, as well as IADC Amicus Committee Chair M.C. Sungaila and Jenny Hua of Snell & Wilmer.

IADC Submits Coalition Amicus Brief in Support of Certiorari in Expert Testimony Case (10/14/2014)

SQM v. Pomona is a product liability case arising out of findings that the City of Pomona’s water supply contains perchlorate above the limit established by California regulatory authorities. Pomona attributes the perchlorate in its water supply to local use of Chilean fertilizers containing natural perchlorate during the first half of the twentieth century. SQM began distributing Chilean fertilizer in the U.S. in 1927, but there is no direct evidence that its products were ever used in Pomona. The City’s case therefore rests on the testimony of Dr. Neil Sturchio (University of Illinois), who purported to apply a complex, multi-step form of stable isotope analysis to identify Chilean perchlorate as the dominant source of perchlorate in Pomona’s groundwater.

Dr. Sturchio admits that no other laboratory employs his approach. Indeed, a Department of Defense Guidance Manual, co-authored by Dr. Sturchio and issued as “Version 1” on the eve of trial, candidly acknowledges that the approach remains under development and has not been verified through independent testing by other laboratories. Moreover, Dr. Sturchio’s published reference database (which the Manual makes clear is a work in progress) includes only a few samples from comparator sources of synthetic perchlorate and of indigenous perchlorate from Chile, Texas, and Death Valley— none from Pomona itself. He provides no evidence regarding error rates associated with using such a limited database to identify the sources of perchlorate in Pomona’s water. Because he admits that scientists do not know why isotope values vary from location to location, the database fails to account for many potential sources and thus is woefully inadequate to support Dr. Sturchio’s conclusions in this case.

The district court excluded Dr. Sturchio’s evidence on these bases after a Daubert hearing, and the Ninth Circuit reversed. The panel minimized SQM’s reliability challenges to Dr. Sturchio’s procedure, including the current impossibility of any independent laboratory verifying his analysis (replication is a basic quality control standard), as mere “[in]adherence to protocol” that went to the weight of his testimony, rather than to its admissibility. According to the panel, “only a faulty methodology or theory, as opposed to imperfect execution of laboratory techniques, is a valid basis to exclude expert testimony.” 750 F.3d at 1047-48 (emphasis added). The panel recognized that this rule conflicts with the Third Circuit’s oft-quoted holding in In re Paoli R.R. Yard PCB Litig. , 35 F.3d 717 (3d Cir. 1994), that “any step that renders the analysis unreliable under the Daubert factors renders the expert’s testimony inadmissible[,] . . . whether the step completely changes a reliable methodology or merely misapplies that methodology.” Id. at 745 (emphasis in original).

The panel further held that the sufficiency of Dr. Sturchio’s reference database was a question for the jury simply because the parties’ experts disagreed on that issue. Contrary to the district court, the panel also concluded that other laboratories have tested Dr. Sturchio’s method, and that the DoD Manual and several published articles co-authored by Dr. Sturchio—which were not in the record, admittedly included only “abbreviated descriptions” of his method, and which acknowledged the method’s limitations—constituted sufficient evidence that the approach has been properly validated by the scientific community. The Ninth Circuit’s approach conflicts with that of other courts.

The IADC, together with the Atlantic Legal Foundation, Federation of Defense and Corporate Counsel, the American Insurance Association, and Complex Insurance Claims Litigation Association, submitted an amicus brief in support of the petition for writ of certioriari in this case. The brief, co-authored by IADC member and Amicus Committee Chair M.C. Sungaila of Snell & Wilmer and Marty Kaufman of the Atlantic Legal Foundation, can be found here

IADC Joins Amici Coalition Urging the District of Columbia to Adopt Daubert (10/24/2014)

In the more than 20 years since the United States Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the vast majority of States have abandoned the antiquated Frye "general acceptance" standard for expert admissibility in favor of Daubert's requirement of scientific reliability and relevance. On October 24, 2014, the IADC joined with the Chamber of Commerce of the United States of America, the National Association of Manufacturers, and the National Federation of Independent Businesses to urge the District of Columbia Court of Appeals to follow suit.

The issue is before the DCCA on a certified question from a D.C. trial court in a mass tort litigation involving allegations that cell phones can cause brain cancer. While concluding that plaintiffs' experts did not have any reliable science to support their general causation opinions, the trial court held that it was compelled under D.C.'s Frye standard to admit some of the plaintiffs' experts because they had reached their unreliable opinions using generally accepted methodologies. Noting that the adoption of Daubert would likely result in a different outcome, the trial court granted defendants' request and certified the question of the proper standard for expert admissibility to the District's highest court.

In their amici brief urging the District of Columbia Court of Appeals to grant review, the IADC and its co-amici explained that the question before the Court was not a choice between District of Columbia and federal law but rather a choice between the past and the present. The federal D.C. Circuit in 1923 could not have anticipated the nature and extent of expert testimony that now defines the modern practice of civil and criminal litigation. As one federal court has explained, "[t]he Daubert trilogy, in shifting the focus to the kind of empirically supported, rationally explained reasoning required in science, has greatly improved the quality of evidence upon which juries base their verdicts." Rider v. Sandoz Pharmaceuticals Corp., 295 F.3d 1194, 1197 (11th Cir. 2002). Further, abandoning Frye and embracing Daubert would make the judicial task easier, by allowing D.C. judges to tap into a wealth of analysis on virtually any expert admissibility determination from other jurisdictions that apply Daubert.

The IADC amici brief also stressed that D.C.'s continued adherence to Frye is disadvantaging D.C. businesses -- and particularly D.C. small businesses -- that cannot rely on the courts to screen out scientifically unfounded lawsuits and, accordingly, may see no option but to settle rather than take their chances with a jury, even when there are real doubts about the science involved.

Click here to read the amici curiae brief prepared by IADC member Eric Lasker and Joe Hollingsworth of Hollingsworth LLP. The case is Motorola v. Murray, No. 14-DA-18 (D.C.).

IADC Joins Amicus Brief to New York's Highest Court Arguing that Manufacturers Should Have No Duty to Warn of Risks in Products Made or Sold by Third Parties (10/8/2014)

New York law has long recognized that, in cases where two products are used together, a manufacturer can only be held liable for a harm caused by an injurious defective product made or sold by a third-party when the manufacturer: (1) controlled the production of the injury-producing product; (2) derived a benefit from the sale of the injury-producing product; or (3) placed the injury-producing product in the stream of commerce. In the New York City Asbestos Litigation (NYCAL), however, state court judges have held equipment manufacturers liable for failure to warn about asbestos-containing external thermal insulation or replacement internal gaskets or packing made or sold by third-parties if it was foreseeable to the equipment manufacturer that those third-party products would be used in conjunction with the equipment manufacturer’s product.

In the subject case, Dummitt v. Crane Co., the plaintiff served on naval vessels as a boiler technician and at the Brooklyn Navy Yard from 1960 to the late 1970s. He claimed exposure to asbestos-containing materials that were used with or near shipboard equipment associated with numerous manufacturers, including Crane Co. It was undisputed that Crane Co. did not manufacture or sell the asbestos-containing materials to which Dummitt was exposed. Moreover, Dummitt offered no evidence that Crane Co.’s equipment required the use of asbestos materials to operate properly, while Crane Co. presented evidence to the contrary. Nevertheless, disregarding precedent, the trial court gave a jury instruction that extended Crane Co.’s legal duty to include warning about third-parties’ asbestos products to the extent the use of those products with Crane Co.’s valves was reasonably foreseeable. The jury held Crane Co. responsible for ninety-nine percent of Dummitt’s damages, which the jury calculated to be $32 million. After remittitur and certain setoffs, the trial court entered judgment against Crane Co. for a little over $4.4 million.

On appeal to the First Department, all five justices agreed that the jury charge extending a manufacturer’s legal duty to the outer bounds of foreseeability was erroneous. Rather than remand the matter, however, the majority engaged in its own findings of fact – most of which were at odds with the record before it - and concluded that Crane Co. was still liable. Since two justices dissented from the outcome, the case is automatically before the Court of Appeals.

The IADC brief argues that the New York Court of Appeals should reaffirm that New York applies a “stream of commerce” test, not a foreseeability-based test, for liability to attach in combined use situations. This is the clear majority rule nationwide. The IADC was joined on the brief by the Business Council of New York State, Manufacturers Alliance of New York State, Lawsuit Reform Alliance of New York, Coalition for Litigation Justice, Inc., Chamber of Commerce of the United States of America, National Association of Manufacturers, NFIB Small Business Legal Center, American Tort Reform Association, American Insurance Association, and Northeast Retail Lumber Association.

The amicus brief was prepared by Shook, Hardy & Bacon’s Victor Schwartz and IADC member Mark Behrens. A copy of the brief can be found here.

Kam-Way Petition for California Supreme Court Review (8/19/2014)

The IADC has submitted an amicus curiae letter urging the California Supreme Court to review a decision that risks an unprecedented expansion of liability for trucking brokers, key links in the trucking industry. The Atlantic Legal Foundation and Trucking Industry Defense Association separately submitted amicus letters in support of review.

A trucking broker finds and hires a trucking company (carrier) to haul goods for a customer. If the carrier causes a crash, is the broker liable? Under traditional law, no: a person who hires an independent contractor is generally not liable for the contractor's negligence. But the trial court held that a broker, Kam-Way, owed an unprecedented "nondelegable duty" to assure that the carrier's owner-operator had a safe driving record and carried sufficient insurance. The ruling has caused serious concern in the trucking industry. If followed, it will significantly expand brokers' liability by making them potentially liable for on-the-road accidents. It will also force brokers to monitor driver safety and insurance -- even though carriers must already do so.

The IADC amicus letter explains that the trial court wrongly held that Kam-Way owed these duties because it held a broker's license. The letter explains that licensing laws impose these duties on carriers, not brokers, and that California courts are split on what kinds of licenses can even give rise to non-delegable duties. Given the issue’s importance to the trucking industry and the uncertainty in the law, the letter urges the Supreme Court to grant review or order the Court of Appeal to decide the case on writ review.

The case is Kam-Way Transportation v. Superior Court, California Supreme Court No. S220283. The IADC amicus letter was authored by IADC Amicus Committee member Robert Brundage of Bingham McCutchen LLP. Kam-Way is represented by IADC Amicus Committee Chair Mary-Christine Sungaila. The IADC letter is available here.

Texas Supreme Court Rejects "Any Exposure" Asbestos Argument (2014)

In Bostic, the plaintiffs obtained a $12 million judgment on a jury verdict rendered against Georgia Pacific. Bostic claimed that he developed mesothelioma after he was exposed to Georgia Pacific’s joint compound that contained asbestos. The evidence established that he was also exposed to asbestos-containing products manufactured by other defendants, but plaintiffs did not establish the level of exposure their decedent sustained to each particular defendant's product. Instead, plaintiffs claimed that his cumulative exposures caused the disease and that “any exposure” to the defendants’ asbestos-containing products was sufficient to sustain the verdict. The defendants disagreed, and argued that, under Texas law, plaintiffs were required to prove “but for” causation - a showing that the decedent would not have developed mesothelioma in the absence of exposure to each particular defendants’ product.

The court of appeals agreed with defendants and the judgment was reversed. Plaintiffs then appealed to the Texas Supreme Court.

The Texas Supreme Court affirmed the court of appeals decision - but not all of its reasoning. The Supreme Court rejected plaintiffs’ argument that “any exposure” to asbestos was sufficient to support a finding of causation. But the Court also took the opportunity to clarify that “but for” causation was not required as a prerequisite to liability in asbestos cases in Texas. In doing so, it explained that plaintiffs were not required to prove that their decedent’s disease would not have occurred “but for” exposure to a particular defendant’s product. Instead, the Court held that plaintiffs were required to prove that each defendant’s product was a “substantial factor” in causing the disease.

The Texas Supreme Court's analysis turned on an argument presented in an amicus brief filed on behalf of the International Association of Defense Counsel, the American Coatings Association, and the American Chemistry Council. In explaining the plaintiff's burden, the Texas Supreme Court merged two separate lines of legal authority in Texas, the first setting forth plaintiff’s burden to present scientifically reliable evidence of causation, see Borg-Warner Corp. v. Flores, 232 S.W.3d 765, 774 (Tex. 2007); Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997), and the second setting forth plaintiff’s burden to prove that an individual defendant manufactured the product alleged to give rise to the harm. Gaulding v. Celotex Corp., 772 S.W.2d 66 (Tex. 1989). In Gaulding, a mesothelioma case, the Supreme Court squarely rejected creative methods of collective liability, such as alternative liability, enterprise liability, and market share liability and embraced the “fundamental principle” that plaintiff must prove that the defendants supplied the product that caused the injury.”

After Bostic, asbestos mesothelioma plaintiffs in Texas will be required to establish through statistically significant epidemiologic evidence that their exposure to each defendant's product increased their risk of mesothelioma by at least 200 percent (the causation burden imposed in Havner) and even more if there is evidence of dramatically greater increased risk from exposures to other asbestos products. This burden should firmly close the door against the vast majority of asbestos claims currently being pursued against secondary and tertiary asbestos defendants, whose products largely contained less friable asbestos and/or less hazardous chrysotile fibers.

IADC members Eric Lasker and Richard Faulk of Hollingsworth LLP prepared the coalition amicus brief.
 

IADC Joins U.S. Chamber of Commerce Amicus Brief in the U.S. Supreme Court Urging Review of Article III Standing Issue (6/2014)

The petition for writ of certiorari in Spokeo v. Robins raises the following issue: “Whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm,and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on bare violation of a federal statute.”

The IADC joined with the U.S. Chamber of Commerce in submitting an amicus brief in support of the cert. petition in Spokeo. As the brief argues: “[T]his case is also of great practical significance—particularly to the business community. No matter their size, industry, or geographic location, businesses are subject to all manner of technical legal duties. By the Ninth Circuit’s logic, for practical purposes, injury-in-fact (and with it causation and redressability) would no longer be a required element for standing in federal courts. With standing based solely on a technical statutory violation that could be identical for a large swath of potential plaintiffs, the traditional class-certification hurdles of commonality and predominance could be rendered meaningless, as well. As a result, businesses would be significantly more likely to face class actions seeking damages (sometimes annihilating damages) for conduct that caused concrete and particularized harm to only a handful of people or to no one at all—the kind of “frivolous lawsuits” that “essentially force corporate defendants to pay ransom to class attorneys by settling.” S. Rep. No. 109-14, at 20 (2005) (Class Action Fairness Act). This is not idle speculation: Such suits are already being brought, and their pace is accelerating. See Pet. 12-14. This Court’s review is necessary to stop these litigious opportunists who have suffered no injury—and the courts that enable them—from playing fast and loose with Article III.”

Further, the brief notes that "[l]ike First American Financial Corp. v. Edwards, 132 S. Ct. 2536 (2012), which presented but did not resolve the same issue (and in which both the Chamber and the IADC participated as amici curiae), the Spokeo case therefore presents both a danger and an opportunity. If the decision below is allowed to stand, there is a serious danger of continued erosion of the minimum requirements for standing under Article III of the Constitution. Such a danger is of grave concern to the business community because (as this case illustrates) alleged technical violations of regulatory statutes can often affect large numbers of people without actually injuring them. If, as the Ninth Circuit held (following its precedent in Edwards) such people can bring lawsuits without the need to demonstrate any injury beyond the alleged statutory violation itself, businesses will predictably be tied up in damages litigation over harmless alleged lapses, diverting their resources from more productive uses. This case presents an opportunity to rein in abusive litigation over such trifles, and to restore proper constitutional limitations on no-injury lawsuits.

A copy of the amicus brief in Spokeo, Inc. vs. Thomas Robins can be found here.

IADC Joins U.S. Supreme Court Amicus Brief with FDCC and Washington Legal Foundation, Urging Reversal of Tenth Circuit's Refusal to Give Effect to CAFA Notice of Removal (5/29/2014)

The IADC joined with the Federation of Defense and Corporate Counsel (FDCC) and Washington Legal Foundation (WLF) in encouraging the U.S. Supreme Court to overturn a federal district court decision hindering an out-of-state defendant’s ability to remove a lawsuit from state to federal court. The brief argued that the defendant company’s statutorily mandated “short and plain statement of the grounds for removal” should have sufficed and that the district court should not have remanded the case due to a failure to include supporting evidence in the notice of removal.

The amici devoted most of their brief to urging the Supreme Court to disavow the pervasive “presumption against removal” that nearly all federal appeals courts have adopted. The brief noted that the district judge below stated explicitly that “the strong presumption against removal” guided her decision to remand the case to state court, and argued that the supposed presumption has no basis in Supreme Court precedent and contradicts normal rules of statutory construction. The brief further observed that Congress has repeatedly expressed its support for expansive federal court removal jurisdiction, most recently when it adopted the Class Action Fairness Act in 2005. CAFA, which authorizes removal of virtually all large class actions, included findings that some state courts have “demonstrate[d] bias against out-of-State defendants.” CAFA’s explicit statutory support for removal rights is inconsistent with a judicially created presumption construing removal jurisdiction strictly. The brief was written by Richard Samp and Cory Andrews of the Washington Legal Foundation, alongside IADC Amicus Committee Chair Mary-Christine Sungaila and Jenny Hua of Snell & Wilmer LLP.

A copy of the amicus brief in Dart Cherokee Basin Operating Company, LLC, and Cherokee Basin Pipeline, LLC vs. Brandon W. Owens can be found here.

IADC Joins U.S. Supreme Court Amicus Brief in Support of Certiorari in Class Action Case (3/3/2014)

The IADC has participated as amicus in every class action case before the U.S. Supreme Court from Wal-Mart v. Dukes forward. The IADC recently joined with the Washington Legal Foundation in urging review in another class action case, which concerns the due process limits on state court class actions: (1) Whether the Due Process Clause precludes state courts from certifying a no-opt-out class action to provide the predicate for later individual awards of compensatory and punitive damages and (2) Whether the Due Process Clause precludes state courts from certifying class claims on the premise that individual defenses will be removed from consideration.

A copy of the amicus brief in Allstate v. Jacobsen can be found here.

IADC Files Amicus Brief in Vermont Supreme Court on Billed Versus Paid Medical Expenses Issue (2/19/2014)

A developing issue in personal injury litigation across the country is whether and to what extent a plaintiff can recover damages for medical expenses: must they be limited to the amount actually paid to the medical provider, or can recovery be extended to the amounts that were billed (which often is much more than the amount actually paid). Several state supreme courts have weighed in, including the California Supreme Court, which in 2011 held that a plaintiff in a tort action who receives treatment for his or her injuries because of the defendant's wrong and "whose medical expenses are paid through private insurance may recover as economic damages no more than the amounts paid by the plaintiff or his or her insurer for the medical services received or still owing at the time of trial." Now, the Vermont Supreme Court is poised to determine whether evidence of medical payments can be presented to a jury, and what the range of permissible recovery of medical expenses might be. In Heco v. Johnson Controls, Inc., the IADC submitted an amicus brief urging that evidence of the paid amount be admitted, citing the rationales in California and Texas Supreme Court decisions. The amicus brief was prepared by IADC amicus committee member Mitch Smith, with former DRI President and IADC Trial Academy faculty member Matt Cairns as local counsel.

Click here to read the brief.

IADC Joins Amici Curiae Brief Supporting U.S. Supreme Court Review of the Political Question Doctrine (2/10/2014)

The IADC joined an amici curiae brief, along with the U.S. Chamber of Commerce and the National Foreign Trade Council, in support of a petition for writ of certiorari filed by Kellogg, Brown & Root Services with the U.S. Supreme Court.

During the Iraq War, the U.S. Army concluded that the "least bad" option to house American troops was to billet thousands of soldiers in pre-existing, Iraqi-constructed "hardstand" buildings. The Army knew that those buildings contained hazardous, ungrounded electrical systems, but determined that the hazards from those substandard systems were outweighed by the overarching need to protect troops from enemy fire. The Army also lacked funds to upgrade the hardstand buildings, and chose not to construct new housing facilities to avoid the appearance of a prolonged occupation. Respondents' son was a soldier who died in a tragic accident in which he was electrocuted while showering in his assigned living quarters in a hardstand building at a forward operating base near Baghdad. Respondents brought state-law tort claims against Petitioner Kellogg Brown & Root Services, Inc., a battlefield support contractor that provided facilities maintenance and other essential combat support services to the Army in the Iraq war zone. The district court concluded that Respondents' claims were nonjusticiable under the political question doctrine and were preempted by the "combatant-activities exception" to the Federal Tort Claims Act ("FTCA"), but the Third Circuit reversed on both issues.

The amici curiae brief in which the IADC joined supported the petition by explaining how the extraterritorial application of state law would adversely impact U.S. businesses.

Click here to read the amici curiae brief. 

IADC Submits Amicus Curiae in Sears v. Butler and Whirlpool v. Glazer (11/6/2013)

The IADC joined an amicus brief in support of certiorari in a pair of class certification cases arising from claims against Sears and Whirlpool for allegedly defectively designed and moldy washers. The U.S. Supreme Court remanded these cases back to the circuit courts in light of Comcast v. Behrend last term (in which the IADC also participated as amicus). The Sixth and Seventh Circuits gave the decision in Comcast short shrift, and recertified the classes. Sears and Whirlpool sought review, raising the following issues: (1) Whether the Rule 23(b)(3) predominance requirement can be satisfied when the court has not found that the aggregate of common liability issues predominates over the aggregate of individualized issues at trial and when neither injury nor damages can be proven on a classwide basis; (2) whether a class may be certified when most members have never experienced the alleged defect and both fact of injury and damages would have to be litigated on a member-by-member basis; and (3) Whether the predominance requirement of Rule 23(b)(3) is satisfied by the purported "efficiency" of a class trial on one abstract issue, without considering the host of individual issues that would need to be tried to resolve liability and damages and without determining whether the aggregate of common issues predominates over the aggregate of individual issues.

The amicus brief presented by the IADC and the Washington Legal Foundation urges that review should be granted to determine whether the two circuits' expansive interpretation of class action rules is consistent with the requirement in Comcast of a "demanding" and "rigorous" predominance analysis. At the very least, the brief urges, before certifying a class courts should be required to explain why individual issues do not foreclose a finding that common issues predominate.

Click here to read the amicus brief.

IADC Joins U.S. Supreme Court Amici Curiae Brief Supporting Review in Case Concerning the Propriety of Exercising Personal Jurisdiction Over Foreign Corporations (9/16/2013)

The IADC joined an amici curiae brief prepared by the Washington Legal Foundation in support of a petition for writ of certiorari filed by Novo Nordisk A/S. Novo Nordisk A/S is a Danish public company. It has no physical or business presence in Oregon, where suit was filed on behalf of a woman claiming she developed breast cancer from prescription hormone therapy medication distributed in the United States by Novo Nordisk Inc., an indirect subsidiary of Novo Nordisk A/S. The plaintiffs did not name the U.S. subsidiary as a defendant.

The U.S. Supreme Court petition, filed by IADC member Patrick Lysaught, presents issues concerning the propriety and constitutionality of a U.S. court exercising personal jurisdiction over a foreign corporation based solely on product sales in the forum state by the foreign corporation's indirect U.S. subsidiary.

Click here to read the amici curiae brief.

IADC Submits Amici Curiae Brief in Bixby v. KBR (8/30/2013)

The IADC, alongside the American Chemistry Council (ACC), submitted an amici curiae brief in the Ninth Circuit in support of KBR in a suit arising out of work performed by a KBR subsidiary at an Iraqi-owned water-injection facility in Iraq in 2003, under a contract with the U.S. Army. Members of the Oregon National Guard, who were ordered by the Army to provide security at the facility, brought fraud and negligence claims under Oregon law, asserting that KBR was responsible for their exposure to pre-existing sodium dichromate contamination at the facility. The jury found KBR negligent and awarded each of the 12 plaintiffs $850,000 in noneconomic damages and $6.25 million in punitive damages, resulting in a final judgment of $81 million against KBR. KBR, represented by IADC member Warren Harris of Bracewell & Giuliani, appealed, challenging the judgment on multiple grounds. Mr. Harris is serving as lead appellate counsel for KBR.

The IADC and ACC submitted a brief in support of KBR on one issue: whether emotional distress damages are permitted where, as here, there is no present physical harm associated with the future risk of harm. The brief explained that recovery of such damages runs counter to Oregon law and flies in the face of appellate decisions from other jurisdictions that have concluded purported subcellular injury does not meet the emotional distress physical injury requirement. Amici briefs also were submitted by PLAC and DRI in support of KBR.

The brief, prepared by Amicus Chair M.C. Sungaila of Snell & Wilmer L.L.P., can be found here

IADC Joins Coalition Amici Brief in Support of "But For" Causation Requirement in Asbestos Mesothelioma Litigation (8/13/2013)

In Bostic v. Georgia Pacific Corp., the Texas Supreme Court will be revisiting its seminal 2007 ruling in Borg-Warner v. Flores, in which the Court rejected the "every fiber" theory of causation in asbestos litigation. Plaintiffs in Bosticfalsely contend that by requiring plaintiffs to establish "but for" causation, the Flores decision has led Texas courts to require plaintiffs to trace their injuries back to individuals asbestos fibers and make causation all but impossible to prove in cases of concurrent causation.

In their amici brief, IADC and its coalition partners American Coatings Association and American Chemistry Council demonstrate that the "but for" causation causation requirement set forth in Flores and the intermediate appellate opinion in Bostic is firmly rooted in Texas jurisprudence. IADC also rebuts plaintiffs' reliance on "alternative liability" cases like Summers v. Tice 1999 P.2d 1 (Cal. 1948), explaining that the Texas Supreme Court had already rejected the "alternative liability" rule is asbestos personal injury cases in Gaulding v. Celotex Corp., 772 S.W.2d 66, 68-69 (Tex. 1989). 

The amici brief was drafted by IADC members Eric G. Lasker and Richard O. Faulk, partners in the law firm Hollingsworth LLP. 

Click here to view the amici brief.

U.S. Supreme Court Follows IADC Recommendation in American Express v. Italian Colors Restaurant (12/28/2012)

In a case presenting a challenge to the enforceability of a class action waiver in an arbitration clause that was part of a commercial contract, the U.S. Supreme Court sided with petitioner American Express and the amici curiae brief co-authored by the IADC in concluding that the FAA does not permit courts to invalidate a contractual waiver of class arbitration on the ground that the plaintiff's cost of individually arbitrating a federal statutory claim exceeds the potential recovery. The Second Circuit had held that such a clause was unconscionable to the extent it effectively precluded any action seeking to vindicate the plaintiffs' rights. 

The IADC amicus brief was co-authored by IADC Amicus Curiae Committee Chair M.C. Sungaila and her colleague Katie Richardson of Snell & Wilmer LLP, together with Marty Kaufman of the Atlantic Legal Foundation, who took the lead on the brief.

Click here for the amicus brief.

M.C.'s mock opinion for the Court published through the Washington Legal Foundation's On the Merits publication, which tracks the opinion ultimately issued by the Court, can be found here.

IADC Amicus Brief Filed: Tincher v. Omega Flex (6/5/2013)

The International Association of Defense Counsel and the Pennsylvania Defense Institute (PDI) have submitted an amicus brief urging the Supreme Court of Pennsylvania to adopt the Restatement, Third Torts: Products Liability in design defect cases. The Product Liability Advisory Counsil, the Atlantic Legal Foundation, the Pacific Legal Foundation, the Pennsylvania Business Council and a number of product manufacturers also submitted amicus briefs in support of that position.

Click here for the amicus brief authored by Joseph E. O'Neil, Scott Toomey, and William J. Ricci

IADC Amicus Letter Issued: Garrett v. Howmedica Osteonics (5/24/2013)

The International Association of Defense Counsel and the Atlantic Legal Foundation have submitted an amicus letter urging the California Supreme Court to review a decision that lets plaintiffs oppose summary judgment with evidence that would not be admissible at trial. The Product Liability Advisory Counsil, the California Medical Association, and the Northern and Southern California Associations of Defense Counsel also separately submitted amicus letters in support of review.

Click here for the amicus letter authored by Robert Brundage and reviewed by M.C. Sungaila

United States Supreme Court - Hoosier Racing Tire v. Race Tires America (7/20/2012)

The International Association of Defense Counsel (IADC) recently filed a brief amicus curiae in the United States Supreme Court in the Hoosier Racing case (No. 11-1520). The Court was asked to resolve an emerging split among the circuits on the scope of recovery of e-discovery costs. 

United States Supreme Court - Hoosier Racing Tire v. Race Tires America

United States Supreme Court - Comcast Corporation, Et Al., v. Caroline Behrend, Et Al. (8/24/2012)

The International Association of Defense Counsel (IADC) recently filed a brief amicus curiae in the United States Supreme Court in the Comcast Corporation, Et. Al., case (No. 11-864). The Court will decide the amount of scrutiny that must be given to expert testimony at the class certification. This is a follow-on case to last Term's decision inWal-Mart v. Dukes, in which the Court noted in dicta that a full Daubert analysis of expert testimony may be appropriate at the time of class certification. 

Update: In the second of three class action cases the IADC has participated in this Term, the U.S. Supreme Court has handed another victory to class action defendants. The complaint against Comcast alleged that Comcast violated Sections 1 and 2 of the Sherman Act by engaging in an anticompetitive "clustering" scheme in the Philadelphia area. Plaintiffs sought class certification under Federal Rule of Civil Procedure 23(a) (F.R.C.P.23(a)). The proposed class included all cable television customers who subscribed to Comcast's (or its affiliate's) video programming services in the Philadelphia cluster at any time from December 1, 1999 to the present. 

United States Supreme Court - Comcast Corporation, Et Al., v. Caroline Behrend, Et Al., 

Click here to read the Supreme Court's opinion

United States Supreme Court - Standard Fire Insurance v. Knowles (10/29/2012)

The International Association of Defense Counsel (IADC) recently filed a brief amicus curiae in the United States Supreme Court in The Standard Fire Insurance Company case (No. 11-1450). The Court will decide whether purported class representatives can "stipulate" that they will not seek more than $5 million on behalf of the class (event if class members may otherwise be entitled to recover more money) in order to avoid the "amount in controversy" requirement under the Class Action Fairness Act and thereby avoid removal to federal court. 

United States Supreme Court - Standard Fire Insurance v. Knowles 

United States of Appeals for the Ninth Circurt - Toyota Motor Corporation and Toyota Motor Sales USA, INC. v. Certain Economic Loss Plaintiffs (3/1/2012)

The International Association of Defense Counsel (IADC) recently filed a brief amicus curiae in the United States Court of Appeals for the Ninth Circuit in the Toyota Motor Corporation Unintended Acceleration Marketing, Sales Practices, and Products Liability Litigation (No. 11-57006), asking the Court in an interlocutory appeal to reverse the district court's order that granted Plaintiffs both Article III and statutory standing to assert various "unfair competition" claims under California law.

United States of Appeals for the Ninth Circurt -  Toyota Motor Corporation and Toyota Motor Sales USA, INC. v. Certain Economic Loss Plaintiffs

Supreme Court of Illinois - Center Partners, Ltd. v. Growth Head GP, LLC (1/25/2012)

The International Association of Defense Counsel (IADC) and Illinois Association of Defense Trial Counsel (IDC) filed a brief amici curiae in the Illinois Supreme Court in Center Partners, Ltd. v. Growth Head GP, LLC (Nos. 113107 and 113128), asking the Court to reject extension of the subject-matter waiver doctrine of the attorney-client privilege to the context of extrajudicial disclosures, and reverse the ruling by the Illinois Appellate Court, First District (No. 1-11-0381).

Update: The Illinois Supreme Court, in a case of first impression in any state court across the country, issued an opinion rejecting the application of the subject matter waiver doctrine to the attorney-client privilege in the extrajudicial context. The International Association of Defense Counsel (IADC) and Illinois Association of Defense Trial Counsel (IDC) filed a brief amici curiae in the case, Center Partners, Ltd. v. Growth Head GP, LLC (Nos. 113107 and 113128), asking the Court to reject extension of the subject-matter waiver doctrine of the attorney-client privilege to the context of extrajudicial disclosures. The Court agreed, citing much of the analysis provided in the IADC brief, and holding that "subject matter waiver does not apply to disclosures made in an extrajudicial context when those disclosures are not thereafter used by the client to gain a tactical advantage in litigation."  

Supreme Court of Illinois - Center Partners, Ltd. v. Growth Head GP, LLC

Click here to read the opinion from Illinois Supreme Court

Supreme Court of Texas - Centocor, Inc. v. Hamilton (12/9/2011)

The International Association of Defense Counsel (IADC) filed an amicus brief in the Supreme Court of Texas inCentocor, Inc. v. Patricia Hamilton, Thomas Hamilton and Michael G. Bullen, M.D. (No. 10-0223), requesting that the Court reject any direct-to-consumer advertising exception to the learned intermediary doctrine in Texas and reverse the ruling by the Thirteenth Court of Appeals, Corpus Christi, Texas (No. 13-07-00301-CV).

Supreme Court of Texas - Centocor, Inc. v. Hamilton

U.S. Supreme Court - First American v. Edwards (2012)

IADC submitted a U.S. Supreme Court amicus brief on the merits in support of petitioner First American Financial in a case that raises fundamental questions about Article III constitutional standing and the limits of Congressional power. The amicus brief, prepared by Amicus Curiae Committee Chair M.C. Sungaila and Amicus Curiae Committee Member Mitch Smith.

U.S. Supreme Court - First America v. Edwards

California Supreme Court- Bullock v. Philip Morris (10/20/2011)

The IADC and the American Chemistry Council submitted a letter brief in support of a petition for review filed by Philip Morris in a punitive damages case, in which the California Court of Appeal for the first time justified a substantial punitive damages award based on the wealth of the defendant. Click here to read the amicus letter brief prepared by Amicus Curiae Committee Chair M.C. Sungaila.

California Supreme Court - Bullock v. Phillip Morris

Southern District of New York - Pippins v. KPMG (11/8/2011)

The IADC joined an amicus brief prepared by the Washington Legal Foundation in a Southern District of New York case, in which KPMG is challenging a broad electronic record preservation order in a purported class action. Click here to read the amicus brief prepared by the Washington Legal Foundation

United States District Court Southern District of New York: Kyle Pippins vs. KPMG LLP

California IADC Amicus Update: Toyota Motor Corporation, et al., v. Superior Court of the State of California, County of Los Angeles (3/2011)

In a case where the IADC filed an amicus brief on behalf of Toyota, the California Court of Appeal published an opinion on July 27 confirming that California statutes do not currently allow for a California court to compel a foreign witness -- whether from out of state or out of the country -- to come to California for a deposition. Plaintiffs filed in California a product liability action arising from an accident that took place in Idaho, and sought to depose in California five employees of Toyota who were Japanese residents. Toyota responded that the depositions could take place in Japan, but not California, citing a California statute that limits the power of California trial courts to compel the attendance of only California residents at deposition and trial. The trial court granted the motion to compel, but the Court of Appeal granted Toyota's writ petition. The appellate court unanimously concluded that "[t]he plain language of the statutory scheme and the legislative history of that language fully support the conclusion that a trial court cannot order a non-resident to appear at a California deposition. This conclusion is not limited to individual witnesses, but also applies to a court order directing that a party produce for deposition a non-resident witness (e.g., a employee, office, or director of a corporation)." The concurring justice noted, however, that it may be time for the Legislature to revisit the statutory scheme. 

The IADC answered the Court of Appeal's invitation for amicus briefing, and filed an amicus brief in support of Toyota, together with the National Association of Manufacturers. The brief, prepared by Amicus Curiae Chair M.C. Sungaila, argued that (1) in the absence of a statutory scheme, the California courts had no inherent equitable authority to compel attendance here and (2) international comity concerns should play a role in the statutory analysis. 

IADC Files Amicus Brief in Important Discovery Case, in response to Invitation by California Court of Appeal (3/31/2011)

Individuals injured in a car accident in Idaho sued Toyota Motor Corporation, Toyota Motor North America, and Toyota Motor Sales in California state court. The plaintiffs sought to compel Toyota Motor Corporation, the Japanese parent, to produce individual employees (and Japanese residents) for deposition in California. The trial court granted plaintiffs' request. Toyota filed a writ petition with the California Court of Appeal challenging the ruling. Toyota argued that California Code of Civil Procedure section 1989 barred the order; instead, a party who wants to depose non-resident witnesses must take their depositions in their state or nation of residence. The appellate court decided to hear the writ petition on the merits. 

The main issue – whether the court can order a corporation to bring out-of-state employees to California for deposition –could impact any litigation in California state court involving an out-of-state or foreign corporation. At oral argument on the writ, the appellate court seemed to recognize that the court's opinion could impact numerous other cases, and that this matter could proceed to the California Supreme Court. After oral argument, the appellate court invited amicus participation. The Court of Appeal extended an invitation directly to a number of potentially interested organizations, including the IADC. 

On April 1, 2011, IADC and the National Association of Manufacturers jointly filed an amicus brief in the case. Prepared by IADC Amicus Curiae Committee Chair M.C. Sungaila of Snell & Wilmer LLP, the amicus brief showed that (1) California courts lack inherent authority to compel nonresidents to attend depositions within state borders because English courts of equity, from which California courts' inherent powers are drawn, ordered depositions to be taken abroad rather than force a foreign deponent to come to England and (2) even if the trial court did have discretionary authority under Code of Civil Procedure section 2025.260 to order Toyota's individual Japanese employees to attend depositions in California, that discretion must be exercised consistent with principles of international comity as well as the factors enumerated in section 2025.260 itself. 

Toyota Motor Corporation, et al., v. Superior Court of the State of California, County of Los Angeles

Case Summary

IADC Files Amicus Brief in Wal-Mart v. Dukes (1/27/2011)

The IADC has filed a merits-stage amicus brief in the closely-watched Wal-Mart v. Dukes Title VII class action case before the U.S. Supreme Court. 

A divided Ninth Circuit, sitting en banc, affirmed the district court's certification of a nationwide class of female workers at Wal-Mart who made Title VII disparate impact pay and promotion gender discrimination claims. As Judge Kozinski, dissenting from the en banc determination, pointed out, the class posed a number of concerns about class representation and commonality of issues. The class included members who "held a multitude of jobs, at different levels of Wal-Mart's hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female), subject to a variety of regional policies that all differed depending on each class member's job, location, and period of employment." 

The U.S. Supreme Court granted certiorari to determine two issues: (1) whether class certification was consistent with the requirements of Federal Rule of Civil Procedure rule 23(a) and (2) whether claims for monetary relief, as opposed to injunctive relief, can be certified at all under Federal Rule of Civil Procedure rule 23(b)(2). 

The brief explains why, given the level of organizational and cultural change plaintiffs claim is needed, a class action is unlikely to provide the kind of sustained, structural change plaintiffs seek. The brief introduces organizational development theory, which teaches that organization-wide change in a company's culture is more likely to take root when the organization's members participate in the change, rather than having it imposed on them from the outside. A "one-size-fits-all" approach to change at Wal-Mart, the brief argues, is further complicated by the various regions and stores, each of which is subject to substantial individual managerial discretion and therefore may be at different stages of inclusiveness. The brief also describes a series of store-level classes which may serve as an alternative to the nationwide class that was certified.

In The Supreme Court of the United States: WAL-MART STORES, INC., v. Betty Dukes

IADC Offers Letter Brief to Supreme Court of California Seeking Clarity on the Applicability of the “Consumer Expectations” Test in Design Defect Cases (10/27/2010)

On October 27, 2010 the IADC submitted a letter brief supporting defendant’s petition for review to the Supreme Court of California of the Court of Appeals decision in Saller v. Crown Cork & Seal Co., Inc. At issue is when the “consumer expectations” test should be applied in a design defect case. Courts of appeal are split on this issue and the IADC has asked the Supreme Court for review to give the lower courts guidance in order to secure uniformity of decision. The IADC maintains that further clarification of the consumer expectations test is necessary, particularly in those cases where the “product’s failure” involves exposure to a substance that produces complex biological effects.

The IADC letter brief was authored by IADC members David M. Axelrad and Mary-Christine Sungaila, and Dean A. Bochner all of Horvitz & Levy LLP. 

In the Supreme Court of California:  Saller v. Crown Cork & Seal Co., Inc.

NAM Urges Review of Punitive Damages Case (9/2010)

The NAM and the International Association of Defense Counsel filed an amicus brief this week asking the Supreme Court to review an Oklahoma state court decision that imposed a $53 million punitive damage award on top of an award of $750,000 in a breach of contract dispute. The punitive damages portion is far greater than the Court has found acceptable in other rulings that compare the ratio of the punitive damages to the actual damages in the case. The NAM urged the Court to provide guidance on the definition of compensatory damages, since some states that add statutory penalties to actual damages improperly skew punitive damage awards. Shell Oil Co. v. Hebble (S. Ct.). 

In the Supreme Court of the United States:  Shell Western E & P, Inc. v. Nancy Fuller Hebble

South Carolina Supreme Court Follows IADC Recommendation (6/10/2009)

In an opinion issued September 21, 2009, the South Carolina Supreme Court in Jamison v. Morris held that a franchisor-franchisee relationship alone does not create agency liability. Plaintiffs had obtained a jury verdict against Texaco on an agency theory based on the acts of an independently owned and operated Texaco franchise. The IADC urged the South Carolina Supreme Court to reverse the judgment based on the correct legal relationship of the parties rather than the branding of the store. 

The South Carolina Supreme Court followed the IADC's recommendation, directing a verdict in favor of Texaco based on a lack of evidence of actual agency. The IADC brief was authored by IADC member Randy Roach of Roach & Newton, L.L.P. in Houston, Texas.

In the Supreme Court of South Carolina:  Jamison v. Morris

IADC Successfully Weighs In On Forum Non Conveniens Issue Pending In the Supreme Court of Rhode Island (5/4/2007)  

On May 9, 2008, the Rhode Island Supreme Court issued an opinion in Kedy v. A.W. Chesterton, a case involving the application of the doctrine offorum non conveniens. Plaintiffs, thirty-nine residents of Canada, filed suit in Rhode Island based on alleged asbestos exposure. None of the plaintiffs ever worked in Rhode Island, were exposed to asbestos there, or received medical care there. None of the defendants were located in that state either. However, the defendants’ motions to dismiss were denied because Rhode Island law has never recognized the doctrine of forum non conveniens. The IADC urged the Rhode Island Supreme Court to adopt the doctrine of forum non conveniens.

The Rhode Island Supreme Court followed that recommendation, and formally recognized the doctrine of forum non conveniens and delineated its standards. Because the factors relevant to the forum non conveniens inquiry weighed so heavily in favor of dismissal, the Court also directed the Superior Court to enter an order dismissing the plaintiff’s complaint. The IADC brief was authored and filed by Amicus Curiae Committee member Thomas Riley with Chadbourne & Parke LLP.

In the Supreme Court of Rhode Island: Kedy v. A.W.Chesterton Co.

Supreme Court of Ohio Upholds Two Tort Reform Statutes (12/18/2006)

In an opinion issued December 27, 2007, the Supreme Court of Ohio in Arbino v. Johnson & Johnson held that two recent tort reform statutes enacted by the General Assembly do not violate the constitutional rights of plaintiffs in personal injury lawsuits. The IADC had previously filed an amicus brief in the case urging the appellate court to uphold the constitutionality of these statutes. The IADC brief, available on the IADC website, was authored by IADC Board member Joseph W. Ryan, andColleen L. Marshall of Porter, Wright, Morris & Arthur, L.L.P.

One of the challenged statutes caps the amount of noneconomic damages that may be awarded to a plaintiff in a personal injury suit to the greater of $250,000, or three times the amount of “economic damages” awarded to the same plaintiff based on the same injuries, up to a maximum of $350,000. The other provision prohibits Ohio courts from awarding a plaintiff punitive damages that exceed two times the amount of his or her compensatory damages from the same defendant. The Court in Arbino ruled that legislation capping the amount of noneconomic damages and punitive damages does not violate the constitutional rights of injured parties to trial by jury, to a remedy at law for their injuries, or to due process and equal protection of the laws. The Court also held that the challenged statutes do not violate provisions of the Ohio Constitution that guarantee open courts and the separation of powers between the legislative and judicial branches of government.

In the Supreme Court of Ohio: Arbino v. Johnson & Johnson

First Circuit Certifies Questions Relating to Post-Sale Duty to Warn to Maine Supreme Court (2/22/2007)

The IADC recently joined in a challenge to a district court’s finding that there is a post-sale duty to warn customers regarding a product that was not defective when made, and that such a duty extends to remote purchasers. The case in which this determination was made, Brown v. Crown Equip. Corp., is pending in the United States Court of Appeals for the First Circuit. The jury in that case specifically found that the product in question was not defective when made and first sold. However, the jury was instructed that it could impose a duty on a manufacturer to warn even remote purchasers about products that were not defective when first sold, and in fact, the jury imposed such a duty.

On September 4, 2007, the First Circuit certified the issue to the Maine Supreme Court. The IADC has once again joined in the effort to now persuade the Maine Supreme Court to hold that no such duty exists by filing yet a second brief in that Court. The IADC’s brief urges that any post-sale duty to warn should be limited to products that were defective when first sold, consistent with the overwhelming weight of authority throughout the nation. Additionally, the IADC argues that if the Court were to recognize such a duty, it should not extend to remote purchasers. The IADC briefs filed in the First Circuit and in the Maine Supreme Court were prepared by Amicus Curiae Committee member Jonathan Franklin and Kimberly Walker withFulbright & Jaworski, L.L.P.

In the United States Court of Appeals for the First Circuit: Brown v. Crown Equipment Corp.

IADC Files Amicus Brief in California Supreme Court (9/27/2007)

In September 2007, the IADC filed a letter brief in a case pending in the California Supreme Court, Starrh and Starrh Cotton Growers v. Aera Energy LLC. The letter urged the Court to grant the petition for review brought by Aera Energy. Aera is a joint venture of Shell and Exxon, and operates oil and gas exploration and production activities in California. Aera owned property containing state-authorized collection ponds for disposal of water brought to the surface as part of normal field operations. This water migrated to the Starrh aquifer, which in its natural state already could not be put to agricultural use because of excessive salinity. The encroachment began in the 1980’s, and will continue regardless of abatement efforts. The appellate court held that the trespass that began fifty years ago is “continuing” in nature, rather than permanent, and thus not subject to a three year statute of limitations for trespass claims.

The IADC joined in Aera’s challenge to the court of appeals’ decision. The IADC urged the Supreme Court to clarify California law regarding whether a nuisance or trespass may be found to be continuing for the purpose of applying the statute of limitations, but permanent for purposes of calculating damages. The petition for review was denied by the California Supreme Court in October 2007. The IADC brief was authored by Frederick Baker of Sedgwick, Detert, Moran & Arnold, LLP.

In the Supreme Court of California: Starrh and Starrh Cotton Growers v. Aera Energy LLC

Big Decision in Supreme Court Case for Which IADC Offered Amicus Brief (7/25/2008)

For the case of Shell Oil Company v. United States of America. At issue was the Ninth Circuit's sanctioning what is argued as an improper expansion of liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

The amicus brief offered support for granting the petition for certiorari, and we are pleased to report that the Supreme Court granted cert on both Shell and Burlington Northern's petitions in this appeal of the 9th Circuit's CERCLA decision.

The IADC brief was authored by IADC member Mary-Christine Sungaila and Jeremy B. Rosen and Bradley S. Pauley of Horvitz & Levy LLP.

In the Supreme Court of the United States: Shell Oil Company v. United States of America

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