Nine post-Tobacco II opinions

In preparation for our Rutter Group seminar last week, Will Stern and I compiled this list of the nine Court of Appeal opinions substantively construing Tobacco II:

Morgan v. AT & T Wireless Services, Inc., 177 Cal.App.4th 1235 (2009) (Second Appellate District, Division Four)  (no petition for review filed)

Kaldenbach v. Mutual of Omaha Life Ins. Co., 178 Cal.App.4th 830 (2009) (Fourth Appellate District, Division Three) (no petition for review filed)

Cohen v. DirecTV, Inc., 178 Cal.App.4th 966 (2009) (Second Appellate District, Division Eight) (rev. den. 02/10/10)

Princess Cruise Lines, Ltd. v. Superior Court, 179 Cal.App.4th 36 (Nov. 10, 2009) (Second Appellate District, Division Eight) (rev. den. 02/04/10)

In re Vioxx Class Cases, 180 Cal.App.4th 116 (Dec. 15, 2009) (Second Appellate District, Division Three) (petition for review filed 01/25/10, no. S179699) 

Weinstat v. Dentsply International, Inc., 180 Cal.App.4th 1213 (Jan. 7, 2010) (First Appellate District, Division Four) (petition for review filed 02/11/10, no. S180179)

In re Steroid Hormone Product Cases, 181 Cal.App.4th 145 (Jan. 1, 2010; mod. Feb. 8, 2010) (Second Appellate District, Division Four) (opinion; modification order) (petition for review filed 03/01/10, no. S180583)

McAdams v. Monier, Inc., 182 Cal.App.4th 174 (Feb. 24, 2010) (Third Appellate District)

Pfizer Inc. v. Superior Court (Galfano), 182 Cal.App.4th 622 (Feb. 25, 2010; pub. order Mar. 2, 2010) (Second Appellate District, Division Three)

Four of these (Morgan, Weinstat, Steroid Hormone Cases, and McAdams) generally favor the plaintiff's side, while the others generally favor the defendant.  The decisions are difficult to reconcile, although Will and I tried to during the Rutter seminar.  I'm starting to think that the Supreme Court will need to select a case to take up and elaborate on Tobacco II.

Comments

[rb]

Pfizer, perhaps?

[Kimberly A. Kralowec]

Yes, that would be good, but if they're going to take up a case, Weinstat and Steroids have better facts.

For the record, I think the outcome of those two cases was correct and consistent with Tobacco II, whereas Cohen and Pfizer cannot be reconciled with it. It's very difficult to read the tea leaves and figure out why the Supreme Court would pass on one case and (perhaps) take up a different one later.

If you remember a couple of years ago, both Pfizer and Tobacco II had review petitions pending, and the Court expedited the latter case in order to grant review in it before the time expired in Pfizer and make Tobacco II the lead case. This was my blog post from October 2006 on that development.

And going back to this 2006 post reminds me that Justices Chin and Corrigan are disqualified in Pfizer. That could be a reason why, if they take up a case, it might not be that one.