Page 38 - FDCC Flyer Summer 2021

FDCC News
Circuit Court of Appeals in 2017.
The Dupree trial court granted the plaintiffs’ consolidation Motion on March 13, 2020, and the South Carolina Supreme Court granted J & J an extraordinary writ to review the consolidation. Our writer/
filer for this amicus brief was Gray Culbreath (FDCC member and committee Vice Chair). We worked with DRI, IADC, PLAC, Chambers, and the South Carolina Defense Trial Attorneys Association on
the filings. While a motion for leave to file a brief was filed, and an amicus brief was drafted and approved, ultimately the parties entered a joint order of dismissal mooting the amicus brief filing. We do not believe that the work will
be in vain, as we hear that there is a larger consolidation pending in the South Carolina courts and our brief may well still be filed down the line.
Consolidation Issues: Ingham v. Johnson & Johnson (Missouri) Like Dupree, Ingham implicates the denial of a defendant’s right to a fair trial from a consolidation of multiple plaintiffs for a products liability trial in the City of St. Louis. Unlike Dupree, Ingham involves the consolidation of 22 plaintiffs in a talcum powder product liability action that went to a jury verdict. The jury awarded each plaintiff and identical $25 million, and
the group of plaintiffs $4 billion
in punitive damages. Ingham
also involves issues beyond
the consolidation. Notably, it raises a conflict with the United States Supreme Court precedent on personal jurisdiction. The Missouri Court of Appeals held that specific personal jurisdiction was
expanded to include a company engaging with a third-party in connection with some part of the manufacturing or distribution process. Arguably, this holding conflicts with Bristol-Myers Squibb Company v. Superior Court of California, San Francisco Co., 130 S. Ct. 1773 (2017).
The Missouri Court of Appeals
has upheld the consolidation
and has recently denied J & J’s motion to transfer to the Missouri Supreme Court and for a rehearing. Johnson & Johnson is seeking review in the Missouri Supreme Court. FDCC filed a short brief
in support of review. Our writer/ filer is Paul Penticuff with former FDCC President Scott Kreamer’s firm Baker Sterchi in Kansas City for writing the amicus brief, and to Laurie Hepler for editing and shepherding. We appreciate all of their outstanding work.
Unfortunately, we received
notice from the Supreme Court of Missouri that it was denying the motion to transfer. Immediately thereafter, FDCC was contacted by counsel for J&J and asked whether we would file an amicus brief in support of J&J’s writ of certiorari to the US Supreme Court. The FDCC Board approved that effort and Gray Culbreath of Gallivan, White & Boyd took on the laboring oar
in drafting the brief, which was filed with the US Supreme Court on April 1, 2021. A full copy of the FDCC’s amicus brief in support
of the writ of certiorari can be downloaded from the FDCC on Demand page of the website.
Summary Judgment Issues: Wilsonart, LLC v. Lopez (Florida) The Florida Supreme Court issued its ruling in Wilsonart, LLC v. Lopez, wherein the Court agreed to adopt the federal summary judgment standard articulated in Celotex. The Court simultaneously issued In re Amendments to Florida Rule of Civil Procedure 1.510, enacting the change through a prospective rule amendment to take effect May 1, 2021.
Although the Court declined to reach the merits issue concerning application of the summary judgment standard to the video evidence issues raised by the case, the Court pointed out that defendant can seek summary judgment under Florida’s newly announced summary judgment standard once the rule becomes effective.
Committee Vice-Chair Peter Glaessner of Allen, Glaessner, Hazelwood, and Werth in
36 summer | federation flyer
www.thefederation.org