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Certificates of Merit: Is Your Texas Certificate Sufficient?


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In Eric L. Davis Eng’g, Inc. v. Hegemeyer, No. 14-22-00657-CV, 2023 Tex. App. LEXIS 8899, the Court of Appeals of Texas (Court of Appeals) considered whether the plaintiffs’ certificate of merit, in support of their professional malpractice claim against the defendant engineers, adequately set forth the experience and qualifications of the expert who submitted the certificate. The defendants filed a motion to dismiss, alleging that the certificate of merit was inadequate because it failed to establish that the expert practiced in the same specific areas as the defendants in relation to the work at issue. The lower court denied the defendants’ motion. The Court of Appeals affirmed the lower court’s decision, finding that there was sufficient information for the lower court to have reasonably found that the plaintiffs’ expert practiced in the same area as the defendants.

In Hegemeyer, the plaintiffs sued Eric L. Davis Engineering, Inc. (Davis) and Kenneth L. Douglass (Douglass), alleging improper design of their home’s foundation. The plaintiffs retained Davis to design and engineer the home and Douglass prepared the plans for the home. The plans called for the installation of post-tension cables in the home’s foundation. The plaintiffs alleged that the foundation design was improper and brought professional malpractice claims against Davis and Douglass.

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This entry was posted in Certificate of Merit, Litigation, Malpractice, Texas and tagged , , , .
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Idaho Supreme Court Tells Wine Bottle Manufacturer to Stop Whining Over Personal Jurisdiction


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In Griffin v. Ste. Michelle Wine Estates Ltd., No. 47703, 2021 Ida. LEXIS 127, the Supreme Court of Idaho considered whether an Italian wine bottle manufacturer’s contacts with Idaho were sufficient under the Due Process Clause of the United States Constitution to permit the exercise of personal jurisdiction over the manufacturer in Idaho for a plaintiff’s product liability action. Stated another way, the court considered whether a manufacturer located outside the United States (with no domestic presence) could be sued in Idaho because its’ product reached Idaho and caused injury. Continue reading

This entry was posted in Idaho, Jurisdiction, Litigation, Products Liability and tagged , , .

When an Insurer Proceeds as Subrogee, Defendants Should Not Assert Counterclaims Against the Insured/Subrogor


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In a subrogation action, one party is substituted to the rights and remedies of another with respect to a lawful claim. The substituted party (the subrogee) is legally able to pursue any right or seek any remedy that would be available to the subrogor regarding that claim. But can a defendant in a subrogation action assert any claim against the subrogee that it would have against the subrogor? In Federated Mut. Inc. Co. v. Kosciusko County, No. 3:20-CV-960, 2021 U.S. Dist. Lexis 88735, the United States District Court for the Northern District of Indiana considered whether a defendant could assert counterclaims against the insureds/subrogors in an action filed in the name of their subrogee. The court held that since the insurerds/subrogors were not a party to the action and the defendant could assert the substance of its counterclaim as a defense, the defendant could not file counterclaims against the insureds/subrogors in the insurer’s subrogation action. Continue reading

This entry was posted in Indiana, Litigation, Parties, Subrogation and tagged , , , , .

Examination of the Product Does Not Stop a Pennsylvania Court From Applying the Malfunction Theory


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Pennsylvania recognizes the malfunction theory in product liability cases. This theory allows a plaintiff to circumstantially prove that a product is defective by showing evidence of a malfunction and eliminating abnormal use or reasonable, secondary causes for the malfunction. The malfunction theory is available to plaintiffs as an alternative to proving a traditional strict product liability case in those circumstances where direct evidence of a product defect is not found. In Pa. Nat’l Mut. Cas. Ins. Co. v. Sam’s East, Inc., 727 MDA 2020, 2021 Pa. Super. Unpub. LEXIS 752, the Superior Court of Pennsylvania (Superior Court) considered whether the plaintiffs could avail themselves to the malfunction theory if the plaintiffs’ expert was able to examine the product. Continue reading

This entry was posted in Litigation, Pennsylvania, Products Liability, Subrogation and tagged , , .
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What’s the Gist? Massachusetts Court Looks Past the Labels to the Gist of the Plaintiff’s Allegations to Find Claims Barred by the Statute of Repose


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In Lennar Northeast Props. v. Barton Partners Architects Planners, Inc, C.A. No. 16-cv-12330-ADB, 2021 U.S. Dist. LEXIS 11800, the United States District Court for the District of Massachusetts considered whether a property owner’s construction defect claims against a contractor were barred by the six-year statute of repose for improvements to real property. Massachusetts’ statute of repose, Mass. Gen. Laws ch. 260, § 2B, bars tort actions against those involved in the design, planning, construction or general administration of an improvement to real property more than six years after the earlier of the dates of (1) the opening of the improvement to use; or (2) substantial completion of the improvement and the taking of possession or occupancy by the owner. Finding that, despite the fact that the plaintiff’s actions were labeled as contract, breach of warranty and consumer protection act claims, the complaint alleged actions sounding in tort. Thus, the court applied the statute of repose to these claims. Continue reading

This entry was posted in Construction Defects, Litigation, Massachusetts, Statute of Limitations-Repose, Subrogation and tagged , , , , , .
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Pennsylvania Federal Court Excludes Expert Testimony That Tries To Force a Square Peg Into a Round Hole


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In Kenney v. Watts Regulator Co, No. 20-2995, 2021 U.S. Dist. LEXIS 4539 (E.D. Pa. Jan. 11, 2021), the United States District Court for the Eastern District of Pennsylvania considered whether to exclude the plaintiff’s liability expert’s testimony regarding the sufficiency of the defendant’s product maintenance instructions. The plaintiff offered the testimony in support of his failure-to-warn product defect claim. The District Court excluded the testimony because the facts of the case did not support the plaintiff’s failure-to-warn claim, which rendered the testimony irrelevant. This case establishes that expert testimony can be excluded if there is an improper fit between the testimony and the underlying claim. Continue reading

This entry was posted in Experts, Experts – Daubert, Litigation, Pennsylvania, Products Liability and tagged , , , .
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New Jersey Supreme Court Requires Proof of Diminution of Market Value to Establish Damages


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In Kornbleuth v. Westover, 2020 N.J. LEXIS 298, the Supreme Court of New Jersey considered whether the trail court properly dismissed the plaintiffs’ trespass claim against their neighbors for failing to offer evidence of diminution of the market value of their property. The Supreme Court upheld the dismissal, finding that the plaintiffs’ damages could not be determined, as a matter of law, because they did not offer evidence of the diminution of market value of their property as a result of the trespass. Although the plaintiffs presented evidence of the cost to restore the property, the court held that determining the applicable measure of damages for a trespass claim is dependent on the diminution of market value and whether or not the restoration costs are proportionate to that value. Continue reading

This entry was posted in Damages - Real Property, Litigation, New Jersey and tagged , , .

New York’s Court of Appeals Clarifies the Burden of Proof in Summary Judgment Cases


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In Rodriguez v. City of New York, 2018 N.Y. LEXIS 793, 2018 NY Slip Op. 02287 (Apr. 3, 2018), New York’s Court of Appeals, New York’s highest court, addressed the question of whether a plaintiff, in moving for summary judgment on the issue of the defendant’s liability, also needs to establish the absence of his or her own comparative negligence. In a 4-3 decision, a majority of the court held that, because the plaintiff’s comparative negligence is a matter of damages, not liability, the plaintiff does not bear that burden. Continue reading

This entry was posted in Comparative-Contributory Negligence, Litigation, New York and tagged , .

Delaware Tightens Jurisdictional Requirements for Filing Suit Against Foreign Corporations Selling Products in Delaware


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In Genuine Parts Company v. Cepec, — A.3d –, 2016 WL 1569077 (Del. Apr. 18, 2016), the plaintiffs, Ralph and Sandra Cepec, who are Georgia residents, filed suit against, among others, Genuine Parts Company (Genuine Parts), a Georgia corporation that was properly registered to do business in Delaware. The plaintiffs filed suit to pursue asbestos-related personal injury claims having nothing to do with Genuine Parts’ activities in Delaware. Genuine Parts moved to dismiss the claims against it for lack of general and specific personal jurisdiction. The trial court denied Genuine Parts’ motion, finding that, by complying with Delaware’s statute requiring foreign corporations to register to do business in Delaware and to appoint an in-state agent for service of process, Genuine Parts consented to general jurisdiction in Delaware. Because the Superior Court based its finding on a theory of express consent to personal jurisdiction, the court did not conduct a due process inquiry.

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This entry was posted in Delaware, Litigation, Products Liability and tagged , , .

In A Suit By A Subrogee-Insurance Company, The Insured Is Not Liable For Contribution


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When an insurer, as subrogee of its insured, files suit against a defendant to recover its subrogated payments, the defendant, not infrequently, files a third-party complaint against the insured. Typically, the defendant alleges that, if it is liable, then the insured, based on his or her contributory negligence, is liable to the defendant for contribution. Insureds, however, cannot be liable in tort to themselves.

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This entry was posted in Contribution-Apportionment, Litigation, Pennsylvania, Subrogation and tagged , , .