Tuesday, November 29, 2005

Double reversal in the Virginia removal case

In the Roche v. Lincoln Property case, the plaintiffs brought their products liability case in state court in Virginia, the defendants removed the case to the E.D. Va., the trial court judge slammed the plaintiffs' case by booting their expert testimony under Daubert and granting summary judgment on the merits for lack of evidence, the plaintiffs appealed to the Fourth Circuit on issues related to the removal, the Fourth Circuit reversed the judgment for the defendant on jurisdictional grounds, and finally, in today's unanimous opinion, the Supreme Court reversed the decision by the Fourth Circuit, concluding that the propriety of removal was to be determined based on the actual, rather than the potential, defendants to the state court case.

One interesting footnote from the case says: "The Roches state that they preferred to litigate in state court for two principal reasons: Virginia does not permit summary judgment based on affidavits or deposition testimony, and Virginia has not adopted the rule of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), to assess expert evidence." Hey, no kidding, since they were subsequently zapped in federal court by Daubert and summary judgment practice.

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