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Judge Scheindlin Game Changer – She Emphatically Overturns Magistrate’s Order and Imposes Adverse Inference Sanction in Sekisui

Judge Scheindlin Game Changer – She Emphatically Overturns Magistrate’s Order and Imposes Adverse Inference Sanction in Sekisui

Never far from the spotlight, U.S. District Judge Shira Scheindlin (S.D.N.Y.), author of the landmark Zubulake and Pension Committee opinions, dramatically overturned a U.S. Magistrate’s previous opinion in Sekisui American Corp. v. Hart, No. 12 Civ. 3479 (SAS) (FM), 2013 WL 4116322 (S.D.N.Y. Aug. 15, 2013). In doing so, she has asserted that the plaintiffs in this action were deserving of an adverse inference and monetary sanctions for gross negligence for willfully destroying evidence and failing to issue an adequate litigation hold.


U.S. District Judge Shira A. Scheindlin

The 32-page ruling by the influential jurist presents a forceful rejection of trends from some courts that required prejudice to be demonstrated in order to impose severe sanctions. In reversing U.S. Magistrate Frank Maas’s June opinion in Sekisui, Judge Scheindlin deemed the facts in this case neither required bad faith nor prejudice for an adverse inference.

Judge Scheindlin references Residential Funding as the controlling law in the Second Circuit on adverse inference instructions (Footnote 47) which requires a three-part test including: 1) an obligation to preserve, 2) culpable state of mind, and 3) relevance of the spoliated evidence. To the first point, the facts of the case show that the plaintiff Sekisui failed to preserve information by failing to issue a litigation hold for 15 months and further failing to instruct a third-party vendor to preserve key custodian emails a further 6 months after that which “constitutes gross negligence in these circumstances.” (p.23) Moreover, the court found that evidence was “willfully destroyed.” (p.20)

Regarding a culpable state of mind, the court found that gross negligence “satisfies the culpability requirement (p.15 citing Chin v. Port Authority). On the topic of relevance, the court states that “[w]hen evidence is destroyed willfully, the destruction alone ‘is sufficient circumstantial evidence from which a reasonable fact finder could conclude that the missing evidence was unfavorable to that party.’” (p.16 citing Residential Funding) Judge Scheindlin went on to say that “when evidence is destroyed willfully or through gross negligence” that “prejudice is presumed.” (p.18)

Judge Scheindlin’s reversal sums up the court’s findings:

“Because I find it clearly erroneous and contrary to law, the Memorandum Decision is reversed insofar as it refused to impose sanctions on Sekisui for the destruction of ESI. As discussed, Sekisui (1) willfully and permanently destroyed the ESI of at least two key players in this litigation; (2) failed to impose a litigation hold for more than a year after the duty to preserve arose, despite the fact that Sekisui is the Plaintiff in this action and, as such, irrefutably knew that litigation could arise; and (3) failed to advise its IT vendor of such litigation hold for nearly six months after (belatedly) imposing such hold. Accordingly, the Harts’ request for an adverse inference jury instruction is granted.” (p.28)

Now, let’s turn to Footnote 51 in Judge Scheindlin’s Sekisui opinion. It’s more than a mere citation but rather a definitive statement of her opposition to the proposed amendment to Rule 37(e) which would limit sanctions in cases of spoliation. Here is what she had to say:

I do not agree that the burden to prove prejudice from missing evidence lost as a result of willful or intentional misconduct should fall on the innocent party. Furthermore, imposing sanctions only where evidence is destroyed willfully or in bad faith creates perverse incentives and encourages sloppy behavior. Under the proposed rule, parties who destroy evidence cannot be sanctioned (although they can be subject to “remedial curative measures”) even if they were negligent, grossly negligent, or reckless in doing so. In any event, the proposed rule has not been adopted.

Judge Scheindlin once again has asserted her authority as one of the most influential voices from the bench in Sekisui by reversing the magistrate’s previous order and citing the Second Circuit’s current controlling law in supporting her third adverse inference sanction for spoliation. It will be interesting to see how this latest salvo from the Southern District of New York influences the courts there and in other parts of the country.

Further Reading

The Bubble Bum booster seat meets government standards. So what?

The Bubble Bum, an inflatable child booster seat, advertises that it “meets
all US safety testing standards” – and so does a three-ring binder filled
with paper and wrapped with duct tape.   But does that mean that
these designs will actually protect a child in a crash? Federal Motor Vehicle
Safety Standard 213 hardly represents the state of the art in child safety seat
research, testing or technology. An inflatable child seat might be convenient,
but successful compliance testing can mean very little in a real-world crash. Gary
, Director of Crashworthiness for the Philadelphia-based ARCCA Inc.,
an expert in occupant crash safety systems, will talk at The Safety Institute’s
upcoming conference about 213’s relevance to safety and public health – and
what’s needed to make the standard more relevant.  Whitman has tested
hundreds of child seats and collaborated with NHTSA, the Pennsylvania chapter
of the American Academy of Pediatric Child Injury Prevention, National SAFE
KIDS Campaign, and the Children’s Hospital of Pennsylvania in child restraint
research. (The Safety Institute).






GranuFlo and Naturalyte

GranuFlo and Naturalyte are dialysates, used to treat acute and chronic kidney failure during hemodialysis. On May 25, 2012, the FDA issued a safety communication, warning that there had been complaints about dosing errors during hemodialysis, which could cause increased bicarbonate levels. Increased bicarbonate levels can cause metabolic alkalosis, which is associated with cardiopulmonary arrest, low blood pressure and cardiac arrhythmia.

Both products have been recalled and it has been alleged that the risks involved with using these products were not adequately disclosed. If proper warnings had been issued, health care providers would not have used these products.

If you or someone you know has been harmed by these products, please contact us at 1-888-329-0827 or you can simply sill out our online contact form for a free assessment of your case.

New Jersey court: Texting with a driver can get you in trouble, too

By Matt Pearce(L.A.Times) August 29, 2013, 2:59 p.m.

Can you be held responsible for an accident that happens miles away because you texted the driver?

A New Jersey appeals court panel says yes — and its recent ruling is notable not just for trying to crack down on texting and driving, but for interpreting the way that technology has reshaped life.

On Sept. 21, 2009, Kyle Best, 18, crashed his pickup truck into a married couple riding a motorcycle after Best’s truck crossed the center line on a curve. Best had been texting with an acquaintance. David and Linda Kubert both lost their left legs in the accident.

The Kuberts settled with Best after filing suit, but also sued Best’s acquaintance, Shannon Colonna, arguing that she was “electronically present” in Best’s truck by texting him, and was thus partially responsible for distracting him on the road. A lower court dismissed that claim, citing lack of evidence, and the Kuberts filed an appeal.

In a specific sense, Colonna won: The three-judge panel from the Superior Court of New Jersey’s appellate division unanimously agreed Tuesday that there was insufficient evidence to determine whether Colonna was responsible for distracting Best.

But for the rest of New Jersey’s texters, the court lay down a new standard of responsibility: two of the judges, with a third dissenting in part in a concurring opinion, said that texters could be held responsible in civil court for distracting a driver, provided they had a good reason to believe that the driver would actually respond.

The court’s language says “when the sender ‘has actual knowledge or special reason to know’ … from prior texting experience or otherwise, that the recipient will view the text while driving, the sender has breached a duty of care to the public by distracting the driver.”

The court then makes a unique philosophical turn in addressing how technology users interact with reality, by arguing that when a “sender knows that the text will reach the driver while operating a vehicle, the sender has a relationship to the public who use the roadways similar to that of a passenger physically present in the vehicle.”

The judges cited an interesting hypothetical: “A is driving through heavy traffic. B, a passenger in the back seat, suddenly and unnecessarily calls out to A, diverting his attention, thus causing him to run into the car of C. B is negligent toward C.”

In other words, texting someone can sometimes be the same as actually being with them. The implication of this point is a bit larger: The physical world doesn’t exist separately from cyberspace; technology and life often overlap, sometimes with lethal consequences.

“I think the court is right to define ‘presence’ as not only rooted in physical space, but also by attention — something digital communication can garner a substantial amount of, even over great distance,” said Nathan Jurgenson, a digital theorist who has written about these issues.

However, Jurgenson added, “The decision to pick up the phone is ultimately the driver’s.”

The court ultimately agreed, holding that texters weren’t negligent simply by texting a driver — only if they knew there was a likelihood the driver would respond while driving.

In a concurring opinion, Judge Marianne Espinosa nonetheless critiqued the philosophical move of equating a texter with being an unruly passenger in a car.

“A person who is not present in the automobile lacks the firsthand knowledge of the circumstances attendant to the driver’s operation of the vehicle that a passenger possesses and has even less ability to control the actions of the driver,” Espinosa wrote. Nonetheless, she added that the other judges’ analysis was “helpful.”

Using a non-hands-free cellphone while driving is mostly illegal under New Jersey state law. After the accident, the state legislature also passed a law that an injury accident stemming from phone use can lead to fourth-degree assault charges and possible prison time.

Under New Jersey law, the plaintiff must prove liability for causing negligence.

According to federal statistics, 3,331 people were killed in crashes involving a distracted driver in 2011, with another 387,000 people hurt. 10% of injury crashes were thought to involve distracted drivers.

BP is actually trying to paint themselves as the real victim of their massive oil spill.

BP underestimated the damage they inflicted on the Gulf, and now they’re trying to backpedal out of the oil spill settlement agreement their own corporate lawyers wrote.

BP is blaming the Judge. BP is blaming the claims administrator. BP is blaming the accountants. BP is blaming the lawyers. Worse, BP is blaming the people and businesses of the Gulf. According to BP, the innocent party is BP itself.

Tell BP to stop the backpedaling and live up to their agreement.


Side effects and direct injuries that can be caused by Pradaxa

Side effects and direct injuries that can be caused by Pradaxa

Potential Injuries:
•Brain hemorrhage
•Joint pain
•Intestinal problems
•Joint Inflammation
•Kidney bleeding
•Internal bleeding

Symptoms of excessive internal bleeding:
•Bleeding that lasts a long time
•Coughing up blood
•Joint pain
•Red or black stools
•Uncontrollable, severe bleeding
•Urine that is pink or brown
•Vomit that looks like coffee grounds
•Vomiting blood

If you or a loved one has experienced one or more of the following after being treated with Pradaxa please contact us.

Langston and Langston PLLC – 1 (888) 329-0827

Have you suffered a loss? Ever wondered if you could be compensated? Get what you deserve. We will help you because you deserve to know.  –  Experienced Lawyers Who Take Care of You!  –  Practice Areas and Experience.  –  Contact us for a free consultation.





Pradaxa sales have exceeded $1 billion

Pradaxa has generated more than a billion dollars for Boehringer Ingelheim since first reaching the market in 2011. In 2013, projected sales are worth $603,000,000.

Pradaxa’s success has been largely attributed to an aggressive marketing campaign by Boehringer Ingelheim, conducted at a cost of $67,000,000 during the year leading up to its release. Pradaxa was promoted as a more effective alternative to the widely-used warfarin, which requires frequent blood monitoring and dosage adjustments.

According to the Pradaxa gastrointestinal bleed lawsuit filed in Texas, there were 272,119 prescriptions written between October 2012 and March 2011. During the same period, 932 “adverse event reports” were submitted to the FDA, including 120 Pradaxa related deaths and 500 cases of severe internal bleeding. A further 856 adverse event reports were filed in the subsequent three months, 117 of them pertaining to death.