Amicus Brief Argues That Covid-19 Negligence Suits Belong—If Anywhere—In Federal Court

The Covid-19 pandemic has spawned numerous wrongful death and personal injury suits. These suits belong—if anywhere—in federal courts. But vast majority of these suits, which allege negligence and malpractice on the part of hospitals, nursing homes, doctors, and other healthcare professionals, especially during the early months of the pandemic, have been filed in state courts. […]

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ALF Amicus Brief Argues That Courts, Not Bureaucrats, Should Interpret Federal Regulations

The certiorari petition in AMN Services v. Clarke, No. 21-296, presents a Fair Labor Standards Act (FLSA) question about the relationship between per-diem payments for business-related travel and the calculation of overtime pay.  AMN Services, a healthcare temporary staffing company, reduces the amount of per-diem payments for traveling nurses who decline to work all of their

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Panel: Strategic Use of Amicus Briefs In Appellate Litigation

On May 27, I moderated and participated in a lively panel discussion on Strategic Use of Amicus Briefs In Appellate Advocacy.  Steve Lehotsky of  Lehotsky Keller LLP and Richik Sarkar of Dinsmore & Shohl LLP joined me in the discussion, which was part of the DRI Appellate Advocacy Committee’s annual seminar. Amicus curiae briefs have

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Keep Junk Science Away From Juries

Law360 has published my Expert Analysis/Opinion, Keep Junk Science Away From Juries. The article explains that juries are being called upon to assess an increasingly broad range of scientific issues—ranging from medical causation in class-action/mass-action product liability litigation to the alleged effects of fossil-fuel emissions in climate-change damages suits. For this reason, trial judges’ “gatekeeper”

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NYC Climate Change Suit Melts in Second Circuit

Multi-faceted regulation of U.S. businesses and industries for the ostensible purpose of preventing, mitigating, or remediating “man-made climate change” is one of the biggest threats confronting free enterprise today. It is a subject which not only requires the application of sound science, but also one that should be left to the political branches of the

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Amicus Brief Argues That Justice Delayed Is Justice Denied

In light of recent Supreme Court precedent, there is a substantial question about whether administrative enforcement proceedings prosecuted by independent regulatory agencies such as the Securities and Exchange Commission(SEC) and the Federal Trade Commission (FTC) before their own  removal-for-cause-only administrative law judges (ALJs) violate the separation of powers, and thus are unconstitutional. Federal courts of

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Amicus Brief Takes Aim At Use of Real Person’s Face & Body In “Shooter” Video Game Character

Gears of War continues to be among the most popular Xbox “shooter” video game franchises. One of game’s original and recurring characters is Augustus “Cole Train” Cole, a brutal interplanetary “Delta Squad” warrior whose realistic face, voice, and physique closely resemble Lenwood Hamilton, a former professional wrestler. Hamilton filed suit in a Pennsylvania federal district

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Amicus Brief Argues That Sound Science – Not The “Precautionary Principle” – Belongs In The Courtroom

The City of Bainbridge Island, Washington, has adopted a state-approved Shoreline Management Program (“SMP”), which requires property owners to set aside vegetation buffers and conservation easements to protect Puget Sound shoreline from the supposed ecological impacts of residential construction, landscaping, and recreational activities. Following an unsuccessful administrative appeal to the state Growth Management Hearings Board,

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Amicus Brief Argues That Climate Change Tort Suits Belong – If Anywhere – In Federal, Not State, Courts

During the past several years, state and local governments around the United States have filed at least 19 state-court suits seeking to hold fossil fuel energy companies liable under state common law (such as public nuisance law) for allegedly contributing to climate change and its harmful effects. The defendant energy companies have been largely unsuccessful

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