End-user of defective product prevented from bringing a claim when it has knowledge of the defects

The Court of Appeal has confirmed that where an end user has knowledge of the defects in a product, it is not able to bring a claim for any subsequent loss resulting from that defect. It held that an end user company would be deemed to have knowledge even where its senior managers were not aware. It is sufficient that employees entrusted with the task of maintaining and operating the defective equipment in a safe manner had such knowledge: Howmet Limited v Economy Devices Limited & Ors [2016] EWCA Civ 847.

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Amended US Federal Rules of Civil Procedure narrow availability of civil discovery and sanctions

Important changes to the US Federal Rules of Civil Procedure (FRCP), which govern the conduct of civil proceedings (including product liability cases) in US federal district court, will take effect on 1 December 2015 (absent US Congressional action, which appears unlikely). While various amendments are slated, the most significant amendments will limit the scope of civil discovery  while simultaneously reducing the potential for sanctions for the unintentional loss or destruction of e-mails and other electronically stored information. Joseph G Falcone, a partner in our New York office, and Julia Qi, an associate in New York, review the key amendments on our blog.

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US Supreme Court weighing proposals to curtail scope, burden and uncertainty of discovery in US Federal Court

Joe Falcone has published an article in Financier Worldwide addressing proposed amendments to the US Federal Rules of Civil Procedure, which rules govern civil cases (including product liability cases) in US federal court. If adopted, these amendments should narrow significantly the historically broad scope of discovery in federal court and reduce the spectre of court-imposed sanctions for a party’s unintentional loss of electronic information (including e-mails) sought during the discovery process.

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New York High Court rejects novel cause of action for medical monitoring

For many years, plaintiffs in United States courts have sought to avoid established limits on tort claims, and to recover compensation even when traditional elements of a claim are absent. One variant of this effort has been the assertion of claims for medical monitoring, in which plaintiffs seek to recover medical expenses incurred in tracking health, despite the absence of a present injury. This theory is typically used to seek recovery of the future costs of medical testing needed to diagnose latent diseases that may be caused by exposure to a harmful substance, rather than compensation for an existing condition. Some US courts have allowed these claims to proceed, reasoning that the claim enables tort victims to detect and obtain treatment for latent disease at the earliest possible time. Other courts have refused to recognise the theory, adhering to the traditional principle that the lack of a current injury bars the claim.

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