The title of this blog post is the holding of a recent Tenth Circuit case, Tanner v. McMurray, https://www.ca10.uscourts.gov/opinions/19/19-2166.pdf (10th Cir. 3/2/2021). All quotations below (except the statute itself) are from Senior Circuit Judge Lucero’s outstanding opinion for a unanimous panel. Footnotes, citations and internal brackets are omitted (i.e., bracketed language is mine); most internal quotation marks are omitted.
The novel coronavirus has profoundly altered the legal landscape over the past 12 months. Courts have been forced to change their operating procedures, restrict access, amend scheduling orders (often more than once), postpone trials, and conduct almost all hearings and other routine court business via Zoom. For example, “Since the start of the pandemic, Texas courts have held more than 1 million virtual hearings, leaving [judges] often in charge of guiding others through technical difficulties.”
No, you wouldn’t. But a company called RXD Media apparently did, and after years of litigation is now permanently enjoined from any commercial use of the terms “ipad.” RXD Media, LLC v. Apple, Inc., https://www.ca4.uscourts.gov/Opinions/191461.P.pdf (4th Cir. 1/21/2021). Trademark law is a specialized field in which I have no expertise, but surely this is a no-brainer. What were the principals of RXD (just four people, as far as I can tell) thinking? More importantly, what were their attorneys thinking?
Readers of our blog have probably noticed that I have a special interest in sports-related legal issues (see https://www.videntpartners.com/blog/sports-law), which of course arises from my strong interest in all sports, both professional and collegiate. As a University of Kansas alum, I have a uniquely strong interest in the KU basketball team, which I have been following since I was an undergraduate in the early Cenozoic Period. Unfortunately, there is now a nexus between my interest in sports law and my interest in KU basketba
A couple of months ago, I wrote about the division of opinion among state courts as to whether Amazon can be held strictly liable for injuries caused by third-party sellers’ defective products. https://www.videntpartners.com/blog/2020/amazon-liable-third-party-sellers%E2%80%99-defective-products.
Your response to that title is “Tell me something I don’t know,” right? This is black-letter law! Unfortunately, as every litigator knows, sometimes trial judges make decisions that are simply incomprehensible – decisions that fly in the face of well-known legal principles. Fortunately, appellate courts (usually) set things right.
When I was a practicing trial lawyer, a long time ago in a galaxy far, far away (okay, so it was actually Rhode Island), our state supreme court recognized lack of informed consent as a basis for liability in medical malpractice cases. In doing so, it held that the risks that must be disclosed are those that a reasonable patient would have considered in deciding whether or not to undergo the procedure in question. Of course, expert testimony is necessary to establish what all of the material risks (disclosed and undisclosed) of the procedure are, what the alternative treatments are, etc.
Like all of us, I have experienced bad times for our country over the course of my life. I can recall years of fear and misery. I can recall decades of chaos, drugs and war. I’ve lived through violence and plague. And the overwhelming fear of nuclear holocaust shadowed the world for such a very a long time that it hardly seems credible from today’s perspective.
This is a tricky one. In Hirchak v. W.W. Grainger, Inc., https://ecf.ca8.uscourts.gov/opndir/20/11/192642P.pdf (8th Cir. 11/17/2020), the plaintiff was injured at work when a web sling broke and dropped a load of steel tubing on him. The plaintiff couldn’t sue the manufacturer, Juli Sling Co. Ltd., because it’s a Chinese company, not subject to the jurisdiction of American courts. So he sued W.W. Grainger, Inc. (“Grainger”), which had allegedly sold the Juli sling to the plaintiff’s employer, Weiler, Inc.
Most of the attorneys who contact us are looking for a testifying expert. Presumably that’s because many experts won’t testify (for all kinds of reasons), but are willing to assist attorneys in understanding and preparing cases for litigation, which makes finding consultants easier for attorneys than finding testifiers. Nevertheless, sometimes attorneys do need our help obtaining a consulting expert, and sometimes they even want one of each.
