Defense Counsel Journal

IADC Amicus Briefs - Volume 86, Number 3

Volume 86, No. 3

February 13, 2020

Amicus Curiae

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The last association year has been a busy one for the IADC Amicus Curiae Committee. In addition to implementing new guidelines for evaluation of amicus requests, the Committee filed a number of briefs in a variety of cases throughout the country. 

Most recently, the California Supreme Court ruled favorably to the position taken by the IADC in Monster Energy v. Schechter. The Court reinstated a lawsuit by Monster against a plaintiff’s attorney who breached a confidentiality agreement in a previous settlement. The plaintiff’s lawyer signed the agreement, but later argued that because he was not a party to it, and had just “approved [the agreement] as to form and content,” he had no obligation to keep the contents of the agreement confidential. The IADC amicus brief explained the importance of settlement and confidentiality to the ability of parties to resolve their disputes, as well as the need to adhere to the reasonable expectations of the parties in signing the settlement contract. The IADC urged the Court to adopt a rule that creates clear standards on how to draft and implement confidentiality clauses that are truly enforceable.      

In February 2019, the IADC received a favorable ruling from the Texas Supreme Court in City of Dickinson v. Texas Windstorm, a case involving attorney-client privilege issues. The Court held that the privilege covers a lawyer’s communications with an employee-expert, including the lawyer’s revisions to the expert’s affidavit. Our amicus brief argued that the need for a lawyer’s communications with an employee-expert does not override the public policy behind the privilege -- encouraging candid communications so the lawyer can provide optimal legal advice. The Court not only adopted that view, but gave an explicit shout-out to the IADC in the opinion for its brief. 

In August 2018, the IADC obtained another positive result in Kim v. Toyota Motor Corp., a products liability case before the California Supreme Court involving an alleged design defect (failure to include vehicle stability control) in a Toyota pickup truck. As the IADC had urged, the Court concluded that it was appropriate for the jury to hear evidence regarding the fact that no vehicle manufacturer at the time included vehicle stability control.    

The Committee is waiting on decisions in two other cases in which it filed amicus briefs, one before the Ninth Circuit and the other in front of the Utah Supreme Court. Both involve product liability issues. In the Ninth Circuit case, City of Pomona v. SQM North American Corporation, the plaintiff has asked the Court to judge a seventy-year old product based on “present-day” science and technology, thereby imposing retroactive liability on manufacturers and others in the stream of commerce for hazards that were not known, detectable or foreseeable at the time of a lawful product’s manufacture and use. The Utah Supreme Court case, Burningham v. Wright Medical Group, raises questions about whether and when a manufacturer is immune from strict product liability claims under the “unavoidably unsafe” doctrine, particularly when a medical device has been cleared by the FDA. 

The Committee is always looking for new opportunities to help, as it recognizes how important it is to have the defense bar’s viewpoint heard in precedent-setting cases. We depend on IADC members to bring matters to our attention. So, if you are aware of a significant case in which we might be able to assist, let us know!

Kendall Harrison
Chair, IADC Amicus Curiae Committee 

For information on the IADC's amicus brief program and to view past briefs, please visit the Amicus Briefs page on the IADC website.