Category Archives: Uncategorized

Gavel

Idaho District Court Affirms Its Role as the Gatekeeper of Expert Testimony


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Many subrogation claims involving fire losses rely heavily on expert testimony. Expert testimony is admissible under Federal Rule of Evidence 702 if it is both relevant and reliable. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), whose standard has been incorporated into Federal Rule of Evidence 702, the Supreme Court instructed federal trial courts to act as a “gatekeeper” of expert testimony, giving them the power to exclude expert testimony that is not supported by sufficient evidence. In Maria Fernanda Elosu and Robert Luis Brace v. Middlefork Ranch Incorporated, Civil Case No. 1:19-cv-00267-DCN, 2021 U.S. Dist. LEXIS 14449 (D. Idaho Jan. 22, 2021) (Brace), the United States District Court for the District of Idaho exercised its gatekeeper role when it granted in part and denied in part the defendant’s motion to exclude expert testimony pursuant to Daubert and Federal Rule of Evidence 702. Continue reading →

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Strictly Speaking, the Plaintiff’s Fault Matters in Products Liability Actions in Georgia


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Many states, finding that the purpose of the strict liability doctrine is to protect otherwise defenseless victims from defective products, hold that principles of comparative negligence do not apply to strict liability actions. Georgia is not one of those states. In Johns v. Suzuki Motor of Am., S19G1478, 2020 Ga. LEXIS 760, the Supreme Court of Georgia recently held that Georgia’s comparative fault statute, OCGA § 51-12-33, applies to strict products liability claims brought pursuant to Georgia’s product liability statute, OCGA § 51-1-11. Continue reading →

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Time

Washington Court Tunnels Deeper Into the Discovery Rule


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Often times, properly analyzing when a statute of limitations begins to run – not just how long it runs – is crucial to timely pleading. In Dep’t of Transp. v. Seattle Tunnel Partners, 2019 Wash.App. LEXIS 281 (Was. Ct. App. Feb. 5, 2019), Division Two of the Court of Appeals of Washington addressed when the discovery rule starts the statute of limitations clock on a negligence cause of action. The court held that the statute of limitations begins to run when the plaintiff knows that the factual elements of the claim against the defendant exist. The clock starts to run even if the plaintiff wants to investigate the possibility of other contributing factors or the defendant identifies opposing viewpoints on the theory of the claim. Continue reading →

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Large Property Loss

Fire Consultants Cannot Base Opinions on Speculation


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Larsen v. 401 Main St. Inc., 302 Neb. 454 (2019), involved a fire originating in the basement of the Quart House Pub (Pub) in Plattsmouth, Nebraska that spread to and damaged Plattsmouth Chiropractic Center, Inc., a neighboring business. Fire investigators could not enter the building because the structure was unsafe and demolished. The chiropractic center nevertheless sued the Pub alleging that its failure to maintain and replace basement mechanical equipment caused ignition. Continue reading →

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Fire

Minnesota Clarifies the “Machinery/Equipment” Exception to the Statute of Repose for Improvements to Real Property and Adopts Test for Establishing a Post-Sale Duty to Warn


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In a recent decision, Great Northern Ins. Co. v. Honeywell Int’l, Inc., 2018 Minn. LEXIS 236, the Supreme Court of Minnesota addressed two important legal questions: (1) did the “machinery and equipment” exception to Minnesota’s statute of repose for improvements to real property allow the plaintiff to bring claims against the manufacturer of a component part used in a home’s heat-recovery ventilator; and (2) did the defendant have a post-sale duty to warn the plaintiff? In answering the first question, the court clarified the meaning of the term “machinery” as used in Minnesota’s statute of repose. In answering the second question, the court adopted a test to apply to determine the circumstances under which a defendant in a product’s chain of distribution has a post-sale duty to warn. Continue reading →

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