Tuesday, February 7, 2006

RICO Action for Discovery Fraud?

[CASE] During discovery DuPont hid from plaintiff orchid growers the existence of studies showing that Dupont's fungicide was harmful to plants. (It had been contaminated by an herbicide.) The parties settled the plaintiffs' products liability claim. Later, after they learned about the concealed studies, the orchid growers sued under RICO and a number of state common law claims, saying that the discovery violations had fraudulently induced them to settle.

A district court granted summary judgment for DuPont, adopting DuPont's draft order with very few alterations. Recently, the Ninth Circuit reversed, remanding to the district court for further proceedings. The Ninth Circuit did not express an opinion about the merits, but clearly indicated that the cause of action was possible and chiding the (visiting) district judge for granting summary judgment. Living Designs, Inc. v. E.I. DuPont de Nemours & Co., 431 F.3d 353, No. 02-16947, Westlaw (9th Cir. Dec. 5, 2005).

BNA's Expert Evidence Report has a summary: Ninth Circuit Remands Fraud Suit Charging DuPont, Experts Hide Benlate Test Results, Dec. 19, 2005. (UW users should be able to follow the link; it won't work for most others.)

News story (with quotations from lawyers): 9th Circuit Reverses Ghost-Written Opinion, The Recorder, Dec. 13, 2005.

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