We have repeatedly reported on cases that have highlighted the consequences of failures to comply with the Sixth Circuit’s rules. Another notable example was handed down in an unpublished opinion last week, Palatka v. Savage Arms, Inc. This case involved a products liability action where the district court had granted summary judgment to the defendant after striking its experts. On appeal, the Sixth Circuit reversed the rulings on the expert testimony, which prompted it to also reverse the grant of summary judgment. Therefore, the appellant secured an important, and notable, victory. However, the victory was not complete because on another significant issue on which the plaintiff appealed (the admissibility of allegedly similar incidents), the Court essentially refused to consider the argument because in almost 15 pages of briefing between the opening and the reply briefs, the plaintiffs failed to include any record citations in their brief. The Court specifically cited Federal Rule of Appellate Procedure 28(a)(9), which obligates the appellant to include citations to the record for the propositions on which it seeks reversal. The Court concluded: “because the plaintiffs have not supported their argument with proper citations to the record on appeal, the Court affirms exclusion of the allegedly similar incidents.” Another good reminder to include record cites! The judges (and their clerks) pay close attention to record cites, so accuracy in citation is also of paramount importance.
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Another cautionary tale regarding complying with the Sixth Circuit’s briefing rules
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