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Program Review: Seventh Circuit Year in Review

On February 13, 2014, members of the Eastern District of Wisconsin Bar Association gathered over lunch for the “Seventh Circuit in Review: A roundup of key civil decisions from 2013” presentation. Scott W. Hansen, of Reinhart Boerner Van Deuren, s.c., Anne Berleman Kearney, of the Appellate Consulting Group, and Thomas L. Shriner, Jr., of Foley & Lardner, LLP, provided insight into key decisions issued by the Seventh Circuit Court of Appeals in 2013 and important lessons for practitioners gleaned from those decisions.

Mr. Hansen kicked off the presentation by discussing the decisions in Stollings v. Ryobi Technologies, Inc., 725 F.3d 753 (7th Cir. 2013), and Manpower, Inc. v. Insurance Company of the State of Pennsylvania, 732 F.3d 796 (7th Cir. 2013), through which the Seventh Circuit was attempting to “re-set” the trial court’s role as gatekeeper in the context of qualifying experts, noting that the trial court’s role under Daubert is limited to deciding whether the expert used a reliable method, whether there was enough information to justify using the method, and whether the expert applied the method properly. The jury, not the court, is to decide whether the expert’s conclusions are reliable and the weight to be given such conclusions after cross-examination by the opponent. Mr. Hansen also pointed out that while, in Walker v. Trailer Transit, Inc., 727 F.3d 819 (7th Cir. 2013), the Seventh Circuit held that the clock for removal under 28 U.S.C. § 1446(b) does not begin to run until the defendant receives a pleading or other paper that affirmatively and unambiguously reveals that the predicates for removal are present, a question remains for another court to decide how long a defendant can wait to remove a case when it has information that removal is proper. Finally, Mr. Hansen mentioned the decision in Baugh v. Cuprum S.A. de C.V., 730 F.3d 701 (7th Cir. 2013), in which the Seventh Circuit clarified what it means for an exhibit to be labeled as “demonstrative” and not actually admitted into evidence.

For her part, Ms. Kearney first focused on the decision in Larry Butler, et al. v. Sears, Roebuck & Co., 727 F.3d 796 (7th Cir. 2013), dealing with class certification issues, in which the Seventh Circuit seemed to express its approval of the U.S. Supreme Court’s decision in Comcast v. Behrend, 133 S.Ct. 1426 (2013). The Seventh Circuit also instructed, through its decision in Butler, that it will demand sufficient evidence of causation and damages on a class-wide basis even at the certification stage. Next, Ms. Kearney pointed out that practitioners need to pay attention to what they include in their Local Rule 56.1 Statements of Undisputed Facts because courts will look at those facts, even if the opposing party does not specifically deny those facts, as a basis for denying summary judgment if the other side’s submissions show the contrary, as evidenced by the decision in Perez v. Thorntons, Inc., 731 F.3d 699 (7th Cir. 2013). Ms. Kearney also mentioned the Seventh Circuit’s opinion in Union County, Illinois v. MESCORP, Inc., 735 F.3d 730 (7th Cir. 2013), in which it advises that courts are not going to require mortgages to be recorded where the underlying state law does not make recording mandatory. The decision also discussed how the Seventh Circuit’s ability to certify questions to state court is not unlimited.

Finally, Mr. Shriner reminded the room of attorneys of the importance of conducting their own investigation and ensuring there is adequate proof to support their clients’ claims prior to filing a complaint by discussing the decision in City of Livonia Employees’ Retirement System v. Boeing Co., 711 F.3d 754 (7th Cir. 203). In the case, sanctions were warranted where the attorneys had not met with an essential confidential source until six months after the second amended complaint was filed, leading to embarrassing results when the confidential source changed his story. The Seventh Circuit instructed that circuit courts are mandated to conduct an independent review and explain their reasoning for not imposing sanctions under Rule 11, if a complaint is dismissed. Mr. Shriner also noted the decision in McCarthy v. Fuller, 714 F.3d 971 (7th Cir. 2013), for an interesting discussion of secular courts’ jurisdiction in church matters and the deference secular courts are to give to the church on such matters. Finally, Mr. Shriner mentioned the decision in Bank of America, N.A. v. Knight, 725 F.3d 815 (7th Cir. 2013), for the court’s warning against litigants being too greedy by foregoing available means of redress in favor of potentially more lucrative, but more uncertain, avenues of recovery.

Members of the audience also joined in with their own insights into the implications of those key decisions, leading to an interesting and informative discussion among the panelists and others in attendance.

This article was published in the March 2014 edition of the Eastern District of Wisconsin Bar Association’s (EDWBA) Newsletter.