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Litigation

: CalBizLit

Removal In Product Liability Cases -- Always A Good Idea?

By Bruce Nye

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Like about 42 kajillion other people, I'm a member of Linked-In. I'm also a member of a number of groups, including DRI and several groups dedicated to product liability issues.

I'd just written a post on the "common wisdom" when it comes to arbitration -- the common wisdom being, always good for defendants. I then came across this discussion, started by attorney Jonathan Michaud from Massachusetts. The question was:

"Do you agree with the conventional wisdom that removal to Federal court, based on diversity jurisdiction, is beneficial to a products liability defendant sued in state court on state law claims?"

I think many defense attorneys would say that the answer is either "yes" or "hell yes." And this time, I was of no mind to be a contrarian. My only reservations came from a natural inclination to avoid absolutes;

"My answer to this question is "usually, but not always." In California, where I practice, there are three considerations: Daubert, bench and unanimous jury. California doesn't follow Daubert. In fact, it barely follows Frye. So in an expert case where you hope expert qualifications to be a significant issue, it's a no-brainer. California state 12 person juries decide by at least 9 - 3. Federal juries of 6 have to be unanimous. And that unanimity requirement probably suppresses damage awards.

"The one real variable is the bench. Most of us would take the average federal court judge over the average state court judge 10 cases out of 10. But that's not always what you are comparing. Most districts in California have pretty strong federal benches, but there are some judges nobody on the defense is going to want, and unlike in state court, there is no remedy for getting the judge who hates you, your client and your case. An increasing number of our state courts assign us our judge from the start, so we can make a comparison. And the final judge question is this: is this a case the judge will think belongs in Federal court? Defendants who remove $150,000 property damage cases -- technically removeable, but not by much -- tend to sometimes get a rather chilly reception from the federal courts.

"So like most strategic decisions in the practice of law, there is no blanket rule. "

Full post as published by CalBizLit on June 11, 2009 (boomark / email).