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Mealey's Discovery

February 13, 2024
Hospital Says Burden, Third-Party Status Warranted Quashing Asbestos Subpoena

RICHMOND, Va. — Third-party subpoenas fall under a higher standard that an asbestos defendant cannot meet given the evidence’s marginal relationship to the case, a hospital told the Fourth Circuit U.S. Court of Appeals on Feb. 12, also arguing that the burden that disclosing anonymous study participants would impose supports a trial court’s decision to quash the subpoena.
February 13, 2024
Magistrate Judge Allows Supplemented Expert Reports, Extends J&J MDL Deadlines

TRENTON, N.J. — A magistrate judge in the federal multidistrict litigation for Johnson & Johnson talc-related liabilities declined to strike expert reports, saying the importance of the reports and the ability to mitigate any resulting harm by extending discovery deadlines do not support such a harsh outcome.
February 08, 2024
Monsanto Seeks To Quash Deposition In Vermont School PCB Contamination Case

BURLINGTON, Vt. — Monsanto Co. on Feb. 7 moved in Vermont federal court seeking to quash the Burlington School District’s (BSD) notice of deposition in the polychlorinated biphenyls (PCBs) lawsuit it has filed related to alleged contamination of school buildings and moved for a protective order to the extent that the BSD seeks testimony from a time period other than 1935 to 1977, when Monsanto made PCBs.
February 07, 2024
4th Circuit Defers Ruling On Sanctions In Asbestos Case Referral Appeal

RICHMOND, Va. — The Fourth Circuit U.S. Court of Appeals will defer any ruling on a separate motion for sanctions pending review of the merits of an appeal involving whether a trial court properly imposed sanctions for conduct in an asbestos bankruptcy trust referral fee dispute.
February 07, 2024
Colgate, Asbestos-Talc Plaintiff Face Off About Genetics, Expert Testimony

OAKLAND, Calif. — After a plaintiff moved to exclude argument about why she didn’t undergo genetic testing and what her genetics might mean for her mesothelioma, an asbestos-talc defendant filed its own motion seeking to exclude what it termed unreliable non-witness expert testimony that it says the plaintiff hopes to introduce into the case through the “backdoor.”
February 06, 2024
Panel Upholds Sanction But Reinstates Loofah Patent Infringement Case

WASHINGTON, D.C. — A federal magistrate judge in Arkansas did not abuse his discretion in sanctioning a patent owner for discovery abuse but committed several errors during claim construction, leading to a jury verdict and final judgment of noninfringement that must be vacated, the Federal Circuit U.S. Court of Appeals found Feb. 5.
February 06, 2024
North Dakota: Agencies Are Not Complying With Order For Fracking Lease Information

BISMARCK, N.D. — The state of North Dakota has filed a brief in North Dakota federal court in response to a status report filed by the U.S. Department of the Interior (DOI), in which the state argues that the DOI and other federal defendants have not complied with the court’s prior orders regarding transparency and the production of documents related to the parties’ dispute over an order that enjoined and restrained the federal agencies from imposing what the state calls “the Stop.” That term refers to the federal agencies’ decision to cancel certain hydraulic fracturing lease sales.
February 05, 2024
Rail Company Defends Need For Testimony Of Former Libby, Mont., Clinic Director

GREAT FALLS, Mont. — A railway tells a federal judge in Montana in opposition to a motion to quash the railway’s subpoena that trial preservation testimony is the best way to secure potentially admissible evidence from an asbestos clinic’s former medical director and that his status as a former employee doesn’t matter since he can testify about how a clinic patient described her exposures to asbestos.
February 02, 2024
University Must Provide Past Incident Info To Student Claiming Sexual Assault

HUNTINGTON, W.Va. — Police reports, communications and other information about previously reported incidents of off-campus sexual assaults and harassment are relevant to a university student’s claims of sexual discrimination over the school’s response to her claimed assault, a West Virginia federal magistrate judge found, ordering Marshall University to supplement its discovery responses.
February 02, 2024
Judgment Granted For Insurer In Row Over Misrepresentation Of Harassment Suit

SANTA ANA, Calif. — A California federal judge granted summary judgment to an employment practices liability insurer in a declaratory judgment suit against its insured, finding that the insurer is entitled to rescind the policies because it would not have issued the policies had it known of the insured’s false affirmation in the policy application that no harassment suits were made against it in the last five years.
February 01, 2024
Accounting Denied As To Disputed $185 Million Attorney Fees In Insurers’ ACA Row

WASHINGTON, D.C. — A U.S. Court of Federal Claims judge denied in part objecting class members’ motion for an accounting of a vacated $185 million attorney fee award in suits filed by insurers, some of which are insolvent, over risk-corridor payments under the Patient Protection and Affordable Care Act (ACA), finding that because the court has not yet considered a renewed fee request, the accounting is unnecessary at this time.
January 31, 2024
Sanctions Sought In Asbestos Appeal Over Sanctions In Referral Case

RICHMOND, Va. — An appeal before the Fourth Circuit U.S. Court of Appeals over the appropriateness of sanctions in a case involving asbestos bankruptcy trust referral fees spawned its own briefing on sanctions, with the appellee calling the appeal frivolous and the appellant saying meritorious issues of first impression exist over whether a federal judge can sanction a party for conduct in a state court.
January 31, 2024
California Judge Denies Genetic Testing Motion With Trial Approaching

LOS ANGELES — A defendant seeking a medical examination and genetic testing from a plaintiff suffering from mesothelioma does not explain how such testing can be performed or how expert reports can be produced in the short period remaining prior to trial, a California judge said in denying the defendant’s motion among other rulings.
January 31, 2024
Fabricated ChatGPT Cite Leads To 2nd Circuit Grievance Board Referral

NEW YORK — The Second Circuit U.S. Court of Appeals on Jan. 30 referred an attorney to its grievance board for “conduct that falls below the basic obligations of counsel” after she submitted a citation fabricated by artificial intelligence ChatGPT, saying federal rules require that at the very least, attorneys verify the case law they submit in support of their argument.
January 31, 2024
Judge: Offer Of Samples For Testing Largely Moots Protective Order Motion

SEATTLE — Plaintiffs’ ongoing offer to produce talc samples tested by asbestos expert William Longo moots the need for a protective order unless additional samples are found, a judge in Washington state said in denying a motion for protective order and spoliation finding in part.
January 30, 2024
CARD Doctor Says Asbestos Subpoena Likely Seeks ‘Highly Improper’ Testimony

GREAT FALLS, Mont. — The former medical director of a Libby, Mont., clinic told a federal judge in a motion to quash a subpoena that because he never saw a woman when she went to the clinic and her diagnosis at the time differs from the mesothelioma from which she now suffers, any testimony he could offer at trial would be duplicative of evidence a railway already has.
January 30, 2024
Judge Overrules Discovery Objections In FCA Suit, Says Scope Should Be Nationwide

SAN DIEGO — A California federal judge affirmed a magistrate judge’s discovery order and overruled Abbott Laboratories’ objections to the geographical scope of discovery in a suit alleging violations of the False Claims Act (FCA) and state false claims laws regarding an alleged kickback scheme to induce hospitals and physicians to use an Abbott cardiac medical device, finding that the complaint sufficiently alleges a “nationwide scheme.”
January 26, 2024
Insurer Failed To Show Homebuilder’s Discovery Requests Are Not Relevant

AUSTIN, Texas — A Texas federal magistrate judge denied a general liability insurer’s motion for a protective order and to quash subpoenas served on three insurance brokers after determining that the insurer does not have standing to challenge the subpoenas served on the insurance brokers and failed to meet its burden of showing that the information sought by the insured homebuilder is not relevant to the construction defects coverage dispute.
January 26, 2024
Flint Plaintiffs Seek Order Compelling Production Of Documents Improperly Withheld

ANN ARBOR, Mich. — Plaintiffs in the Flint water crisis litigation have moved in Michigan federal court to compel engineering firms that were involved in the decision to switch the city’s water supply to the Flint River, which resulted in the drinking water being contaminated with lead, to comply with court orders to produce documents that the presiding judge has determined were withheld under improper assertions of privilege.
January 26, 2024
Magistrate: Parties In FCA Suit Must Respond To Intervention By Specific Date

INDIANAPOLIS — An Indiana federal magistrate judge ordered parties to respond by Feb. 5 to the state’s motion to intervene in a suit filed by a health care network’s former employee, who alleges that his termination was in retaliation for his expressing concerns over the network’s purported False Claims Act (FCA) violations by illegally inducing physicians to refer patients to the network’s hospitals.
January 25, 2024
Request For Discovery Order Is ‘Poorly Advised,’ Hair Relaxer Plaintiffs Say

CHICAGO — Plaintiffs in a suit against cosmetic companies over alleged injuries related to hair relaxer products filed a brief in Illinois federal court on Jan. 24 contending that the defendants’ request for a court order establishing procedures for dealing with discovery disputes is “poorly advised and should be rejected in its entirety.”
January 23, 2024
Magistrate Extends Discovery Deadline In Rehabilitator’s Suit Against D&O Insurers

INDIANAPOLIS — An Indiana federal magistrate judge granted parties’ joint motion to extend a discovery deadline in a breach of contract suit filed by the Pennsylvania insurance commissioner, as rehabilitator of an insurer, against primary and excess directors and officers (D&O) insurers.
January 23, 2024
WhatsApp, NSO Defend Discovery Requests In Spyware Dispute

OAKLAND, Calif. — WhatsApp Inc. asks a California federal court to order defendant NSO Group Technologies Limited to submit documents related to all the different types of spyware that the Israeli company used to spy on its users in a reply brief supporting its motion to compel discovery responses, while the defendant maintains that it is entitled to information about the company that aided the plaintiff in its investigation related to the claimed surveillance of WhatsApp users.
January 23, 2024
Insured Entitled To Depose Claims Handlers In Environmental Coverage Dispute

DETROIT — An insured seeking coverage for underlying environmental contamination suits is entitled to depose an insurer’s claims handlers because the information sought by the insured is relevant to the insured’s coverage claim and is relevant in determining whether the insurer acted in bad faith in handling the claim, a special master appointed by a Michigan federal court said in granting the insured’s motion to compel deposition testimony.
January 23, 2024
Magistrate Judge Won’t Sanction Talc Defendant Over ‘Litigation Tactics’

NEW YORK — A dispute over an asbestos-talc defendant’s attempts to discover the identities of individuals in expert Jacqueline Moline’s study comes down to disagreement about litigation tactics and does not rise to the level required for sanctions, a magistrate judge in New York said Jan. 22 in denying a motion.