Mealey's Discovery : Mealey's : Legal News & Analysis

Mealey's Discovery

June 26, 2023
Judge Says Admiral Will Not Testify In Water Pollution Case Against U.S. Navy

HONOLULU — A federal judge in Hawaii has granted a motion to quash a subpoena for an admiral in the U.S. Navy, ruling that the plaintiffs in a groundwater contamination lawsuit against the Navy have not established that the admiral has “unique, first-hand knowledge” with regard to the plaintiffs’ “proposed areas of inquiry or how each area of inquiry is essential” to the case.
June 26, 2023
Magistrate Denies Insured’s Motion To Compel Appraisal Of Hurricane Sally Damage

MOBILE, Ala. — A federal magistrate judge in Alabama denied an insured’s motion to compel appraisal in a coverage lawsuit over Hurricane Sally damage to its 10 four-story residential condominium buildings in Gulf Shores, Ala., finding that appraisal is not appropriate at this time because the parties' dispute involves the cause of the insured’s loss and not just the amount of loss.
June 26, 2023
Freddie Mac Sues Insurers, Seeking D&O Coverage For Costs Incurred By SEC Subpoenas

WASHINGTON, D.C. — Federal Home Loan Mortgage Corp. (Freddie Mac), sued its primary and excess directors and officers liability insurers for breach of contract and bad faith in a District of Columbia federal court, seeking coverage for underlying expenses that it incurred on behalf of its directors, officers and employees who were subpoenaed by the Securities Exchange Commission during an investigation and subsequent lawsuit.
June 22, 2023
7th Circuit Affirms New Trial Denial In Testosterone Case Over Late Disclosure

CHICAGO — The Seventh Circuit U.S. Court of Appeals ruled that the testosterone replacement therapy (TRT) multidistrict litigation court did not err in denying a new trial request over the late disclosure of a Food and Drug Administration letter about studying whether TRT drugs have a risk of high blood pressure, saying high blood pressure was only one of several causal factors in a trial where a man claimed that Androderm caused his heart attack.
June 21, 2023
Tobacco Companies Must Post Discovery From Juul MDL Online, Judge Says

WASHINGTON, D.C. — A District of Columbia federal judge granted a motion filed by public health groups and ruled that a 2006 order requiring Altria Group Inc. and Philip Morris USA Inc. (PM) to post evidence of their past deceptive marketing online also applies to discovery obtained from the companies during the recent multidistrict litigation against e-cigarette maker Juul Labs Inc. (JLI).
June 21, 2023
Panel Upholds Sanction, Kessler Findings By Florida Federal Judge In Patent Row

WASHINGTON, D.C. — A patent owner’s subsequent infringement action against the same defendant following dismissal with prejudice of litigation involving the same patents and accused product was precluded under the Kessler doctrine, the Federal Circuit U.S. Court of Appeals said June 21.
June 20, 2023
Magistrate: Insured’s Discovery Approach In Irma Suit ‘Resembles A Shotgun Blast’

FORT MYERS, Fla. —A federal magistrate judge in Florida denied a condominium insured’s motion to compel discovery in a bad faith lawsuit seeking coverage for property damage caused by Hurricane Irma, finding that the insured’s broad discovery requests “necessarily capture a host of documents that would have little to no relevance” and its approach “resembles a shotgun blast,” which is not what Federal Rule of Civil Procedure 26 envisions.
June 15, 2023
J&J Wants 2nd Look At Magistrate Judge’s Quashing Of Talc Subpoenas

TRENTON, N.J. — A magistrate judge erred when she applied pre-1991 rules in finding third parties subject to a heightened standard for discovery and quashed subpoenas to law firms and attorneys seeking media communications, Johnson & Johnson (J&J) argues in a motion for reconsideration filed in a securities class action in a federal court in New Jersey.
June 15, 2023
Railway: Plaintiff Delayed Asbestos Trust Claim, Didn’t Disclose Efforts

GREAT FALLS, Mont. — An asbestos plaintiff in Montana federal court intentionally delayed an asbestos trust claim for “strategic reasons” and failed to disclose related filings requested in discovery, a railway argues in a June 14 supplement to its response in support of a stay of a trial and opposition to summary judgment.
June 15, 2023
Asbestos Expert’s Employer Seeks To Quash Study Subject Subpoena, Impose Sanctions

NEW YORK — Asbestos expert Jacqueline Moline’s employer on June 14 asked a court to quash a subpoena from a party to a suit, saying the information the defendant sought was already largely available and that production would violate health information privacy regulations and asking that the court impose sanctions.
June 15, 2023
Trial Set In Suit Seeking Nonpublic Info On Holding Company’s Captive Reinsurer

WILMINGTON, Del. — A one-day trial in the Delaware Court of Chancery has been set for June 26 in a suit seeking nonpublic information regarding a captive reinsurer, with the parties filing a joint pretrial stipulation and the plaintiff filing a pretrial brief.
June 13, 2023
Partial Production Of Arbitration Record Compelled In Suit Over Defense Costs

DETROIT — With a motion for declaratory judgment pending in a suit over defense costs, a Michigan federal judge has granted a reinsurer’s motion to compel partial, redacted production of a separate arbitration record.
June 12, 2023
Asbestos-Talc Company, Man Argue Over Whether Promise Is Really A Promise At All

NEW YORK — A talc company responded to a man’s claim that it “feigned confusion,” telling a federal judge in New York that a man’s offer not to reference a 2020 study on asbestos and talc appears to be only a promise not to mention the study while allowing witnesses to discuss its findings all while waiting for opponents to open the door to its admission by challenging the testimony.
June 12, 2023
Split Arkansas High Court Says Bayer CEO Must Testify In Roundup Cancer Lawsuit

LITTLE ROCK, Ark. — A divided Arkansas Supreme Court has denied Monsanto Co.’s attempt to excuse Werner Baumann, CEO of Monsanto’s parent company Bayer AG, from testifying in a glyphosate cancer case, ruling that a trial court did not misinterpret the Arkansas Rules of Civil Procedure and did not abuse its discretion when it initially ordered Baumann to appear.
June 12, 2023
Pollution Liability Insurer Cannot Withhold Documents Prepared In Insured’s Defense

NEWARK, N.J. — A pollution liability insurer cannot assert attorney-client privilege or work product doctrine as a basis to withhold documents prepared while still involved in the defense of an underlying suit filed against its insured, a New Jersey federal magistrate judge said in partially granting the insured’s motion to compel.
June 08, 2023
Delaware Regulators Ask 3rd Circuit To Rehear Case Over Microcaptive Info

PHILADELPHIA — Arguing in part that a Third Circuit U.S. Court of Appeals panel’s ruling “conflicts with decisions of each of the other Circuit Courts of Appeals which have enunciated a” test for reverse-preemption under the McCarran-Ferguson Act (MFA), the Delaware Department of Insurance (DDOI) petitioned for rehearing and rehearing en banc.
June 08, 2023
Man: Asbestos-Talc Study Trial Stipulation ‘Speaks For Itself’

NEW YORK — A company’s “feigned confusion” about a promise not to introduce expert Jacqueline Moline’s 2020 study about asbestos and consumer talc usage during trial and request for clarification are “nonsensical,” a man tells a federal judge in New York in a June 7 letter.
June 07, 2023
In Liquid Mercury Spill Dispute, Pa. Federal Judge Excludes Undisclosed Damages

PITTSBURGH — A transportation company cannot bring damages regarding its costs of repaving areas that were damaged by spilled liquid mercury because the company did not raise the damages in its initial disclosures and never supplemented its disclosures, a Pennsylvania federal judge held in granting a recycling company’s motion to preclude the damages raised in an expert report filed by the transportation company that moved the mercury that later spilled at a storage terminal.
June 07, 2023
Walmart Must Provide Attorney Emails In Trade Dress Dispute With Vans Inc.

SANTA ANA, Calif. — Protections under the attorney-client privilege and the work product doctrine in an email chain between Walmart Inc. and its counsel were waived by disclosure of those emails to a third party and the assertion of an advice of counsel defense, a California federal magistrate judge ruled, granting a motion to compel by Vans Inc., which alleges trade dress infringement of multiple shoe designs by the retailer and its suppliers.
June 07, 2023
8th Circuit Quashes Tribal Parties’ Subpoenas In Election Redistricting Suit

ST. LOUIS — The legislative privilege shields lawmakers in North Dakota from complying with subpoenas issued by two Indian tribes and three Native American voters who are challenging the state’s redrawn legislative districts, a divided Eighth Circuit U.S. Court of Appeals panel held June 6, reversing a federal court’s ruling allowing the discovery requests.
June 07, 2023
Immigration Services Firm Threatened With Confinement For 2-Year Discovery Impasse

HARRISONBURG, Va. — Opining that the defendant in a dispute with its surety provider over immigration bonds has failed to comply with judgments, contempt findings and multiple discovery orders over a two-year period, a Virginia federal judge announced “a new course to resolve this languishing post-judgment” discovery dispute that includes confinement sanctions for the company’s principals if the defendant does not take advantage of one final opportunity to comply with the court’s orders.
June 06, 2023
Company Wants Clarity On Promise About Offensive Use Of Asbestos-Talc Study

NEW YORK — A talc defendant asked a federal court in New York for clarity on whether and when an asbestos expert, other witnesses and counsel can reference a now withdrawn study on causation, saying the promise to not use it “offensively” provides no real limitations.
June 06, 2023
Ford Says Expert, Settlements Warrant Directed Verdict, Amended Judgment

GREENSBORO, N.C. — A woman essentially concedes that her expert’s opinion was based on nothing more than his belief that asbestos friction products were dangerous unless proven otherwise, and settlements more than offset the jury’s entire $275,000 award and any fees, Ford Motor Co. argues in reply briefs in support of motions to amend the judgment and for directed verdict.
June 06, 2023
Missouri Jury Awards $9.7M For 39-Year-Old Woman’s Household Asbestos Exposures

ST. LOUIS — A Missouri jury awarded a widower and an estate $9.7 million for a woman’s take-home exposure to asbestos and resulting death from mesothelioma after the judge in the case said the plaintiff was entitled to sanctions for discovery violations.
June 02, 2023
Illinois: Monsanto’s Bid To Compel Discovery From State Agencies In PCB Case Fails

CHICAGO — Illinois filed a brief in federal court opposing a motion to compel discovery filed by Monsanto Co. in a polychlorinated biphenyls (PCBs) contamination case, arguing that its attempt to compel discovery “from every single Illinois state agency, department, commission, and so forth” should be denied because in litigation brought pursuant to the attorney general’s independent authority to act on behalf of the state, state agencies are not subject to party discovery.