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This Week's Feature
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Rigorous Gatekeeping: Requiring a Full Daubert Analysis
By Paul V. Majkowski and James V. Aiosa
Rivkin Radler LLP, Uniondale, New York
As illustrated in the Seventh Circuit's recent holding in American Honda Motor Co., Inc. v. Allen, 600 F.3d 813 (7th Cir. 2010), vacating 264 F.R.D. 412 (N.D. Ill. 2009), the result of the intersection of the federal district courts' gatekeeping function set forth under the Daubert standard and the principle that the district courts must conduct a "rigorous analysis" in determining class certification is that "when an expert's report or testimony is critical to class certification . . . the district court must perform a full Daubert analysis before certifying the class." Id. at 815-16.
[FULL STORY]
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DRI News
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DRI Is Proud to Introduce DRI Today!
DRI Today is your go-to online resource for convenient, direct access to legal and business news, the DRI Blog, previously published For the Defense articles, stock market summaries, and more! With content updated throughout each business day, you can customize the page’s content and select topics and articles related specifically to your interests – you can even make it your browser’s home page! Let DRI Today bring you the news you need to stay a step ahead – visit DRI Today now!
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Congratulations to Wm. T. (Bill) Robinson III, the member-in-charge of the northern Kentucky offices of Frost Brown Todd LLC in Florence, Kentucky, who was elected yesterday as American Bar Association president-elect at the association’s Annual Meeting in San Francisco. Mr. Robinson is a former ABA treasurer and past president of the Kentucky Bar Association. He has been a DRI member since 1982. For nearly four decades, his practice has focused primarily on civil litigation at the trial and appellate levels.
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Join the Women in the Law Committee and Set Sail at the Annual Meeting!
One of DRI’s newest substantive law committees, the Women in the Law Committee, is up and running with 10 active subcommittees and lots of leadership and publications opportunities. All we need is you! The mission of this new Committee is to provide a welcoming forum for women lawyers to develop relationships, advance their careers and to generally promote the status of women involved in defense litigation. It is an opportunity to meet female lawyers from around the country, including in-house counsel, and to learn from each other, including courtroom skills, rainmaking skills and how to recruit, retain and advance women in law firms. To join, log on to www.dri.org. Once you have signed in, go to the Committees tab and click on “Join a Committee” on the right-hand side. Scroll down and click the box next to the Women in the Law Committee. You can even join our subcommittees by clicking those particular boxes.
[FULL STORY]
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DRI Member Firms Annual Meeting Incentive Program
Earn benefits for your firm and increase the number of firm members able to participate in the 2010 Annual Meeting. The DRI Member Firms Annual Meeting Incentive Program allows all member firms the opportunity to earn up to four levels of benefits by registering multiple individuals for this year’s Annual Meeting. The minimum number of registrants to begin earning these great benefits is five lawyers. All registrants must be registered by the early bird deadline of September 22. For complete details on the benefits available to your firm, download a copy of the 2010 Annual Meeting brochure and reference page 18.
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Last Day to Reserve Your Space – Advertise in In-House Defense Quarterly
DRI’s national quarterly publication, In-House Defense Quarterly™ (IDQ), addresses timely and important issues of specific interest to in-house defense counsel and corporate legal executives. Maximize your target marketing campaign and advertise in IDQ to reach this loyal and influential audience. Law firms, in addition to providers of relevant products and services, are welcome to advertise in IDQ. Space reservations are due today - so act now!
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Construction Law Seminar
The 2010 DRI Construction Law Seminar promises to be another outstanding educational and networking opportunity that should not be missed! An impressive group of nationally recognized speakers will be on-hand to share insights and expertise in a wide range of important topics for construction lawyers, industry representatives and insurance carriers. With a focus on construction litigation matters, attendees can enjoy a blockbuster presentation on old-school trial tactics, as well as a session on attacking and presenting damages at trial. The advance registration deadline is September 10, 2010 – register today!
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Upcoming September Webcasts
Twitter and Facebook and MySpace, Oh My
Thursday, September 16, 2010
1:00 p.m. - 2:30 p.m. Central
Over the past five years, social networking websites have boomed in popularity. Attorneys and their staff are using these sites to develop clients, investigate cases, and for other professional and personal purposes. The need for guidelines, protocols, and policies in law firms has increased concomitantly with overall usage of these sites. DRI’s Twitter and Facebook and MySpace, Oh My webcast will provide suggested dos, and vivid examples of don’ts, for online networking in the context of the Model Rules of Professional Conduct, various ethical opinions, and recent case decisions. Attendees will also receive a social media policy template for their law firms that will provide suggestions on how to minimize the pitfalls and maximize the benefits associated with participating in these sites. Register for the September 16 webcast.
Mediation: How Smart Lawyers and Clients Achieve Success
Monday, September 20, 2010
1:00 p.m. – 2:30 p.m. Central
Mediation practice is often an underappreciated art and form of advocacy that clients appreciate when done well. Mediation advocacy and preparation are seldom discussed, and even skilled trial lawyers would benefit from more intensive and focused mediation training. DRI’s Mediation: How Smart Lawyers and Clients Achieve Success webcast will help you learn how two lawyers and specially trained mediators plan and prepare for mediation, as they explain how to maximize the chances of good mediation results. Topics will include important premediation activity for lawyers and clients, overcoming hurdles in advance of the mediation session, managing client expectations, timing of mediation, and selection of the mediator. The webcast also will demonstrate the importance of selecting the right mediation participants and the breadth of creative solutions that are possible. Register for the September 20 webcast.
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From the DRI Blog
DRI guest blogger Alison Y. Ashe-Card contributed an excellent commentary on Elena Kagan being confirmed as the fourth woman to serve on the U.S. Supreme Court in a post last week on DRI’s Blog. In light of this decision, do you feel diversity on the bench is fundamental to having a successful rule of law? Does a judge’s race or gender affect whether litigants receive equal justice under the law or the perception that they have received equal justice under the law? Should the face of justice be a reflection of all of us? Tell us what you think by commenting on the DRI Blog! Do you have a blog topic you would like to share with the DRI Community? Tell us about it – email us at today@dri.org with the words “Blog Post” in the subject and you could be DRI’s next featured author!
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And The Defense Wins!
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DRI member Rodney Sharp of Sandberg Phoenix & von Gontard P.C. in St. Louis recently obtained a defense verdict for a local hospital and physician in a case alleging failure to diagnose appendicitis, which resulted in multiple hospitalizations for removal of the appendix, a bowel resection and a bowel obstruction. The plaintiff, a local law student, was required to miss a semester of school and accumulated $120,000 of medical bills and lost tuition. The St. Louis County jury returned a verdict in favor of both defendants.
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DRI member Laura A. Cavaretta, a shareholder with Plunkett & Gibson, Inc. in San Antonio, successfully defended a medical negligence case against an ophthalmologist. The plaintiff alleged that the physician should not have performed a DSEK procedure and cataract surgery on her and that this action caused vision loss. Plaintiff’s expert had not been trained in and had never performed a DSEK procedure. A challenge to the qualifications of the plaintiff’s expert was sustained and the expert witness was struck in pretrial hearings. Subsequently, a No Evidence Motion for Summary Judgment was granted.
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DRI member E. Kay Fuller of Martin Seibert, L.C. in Martinsburg, West Virginia, successfully defended State Farm and its right to maintain electronic claim files and to receive a claimant’s medical records without additional restrictions imposed upon access and use of the records by protective orders demanded by claimants before the West Virginia Supreme Court of Appeals.
[FULL STORY]
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DRI members Russell E. Reviere and Erin Melton Shea of Rainey, Kizer, Reviere & Bell, PLC, in Jackson and Memphis, Tennessee, obtained a defense verdict on behalf of an insurer in a civil arson case following a four and a half day jury trial in the Western District of Tennessee before the Honorable Bernice B. Donald. The lawsuit alleged that the defendant insurer breached the policy of insurance issued to the insured by failing to pay on a fire loss. The insurer asserted the defenses of arson and fraud and concealment. Because the defense was successful in eliminating extra-contractual claims by motion before trial, the only issues before the jury were the insurer’s affirmative defenses to the insured’s breach of insurance contract claim.
[FULL STORY]
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In what is believed to be the first case of its kind to go to verdict, DRI members Sean P. MacCarthy and Craig M. Bargher of Chittenden, Murday & Novotny LLC in Chicago obtained a full defense jury verdict for CMN client American Family Life Insurance Company in a wrongful death case brought against American Family for alleged negligent issuance of a life insurance policy. In Bryant v. American Family Life Insurance Company, No. 09 L 006659, Circuit Court of Cook County, Illinois, County Department, Law Division (May 20, 2010), the plaintiff alleged that American Family negligently issued a $500,000 universal life insurance policy, insuring the life of Lorenzo Hamilton, after an imposter applied for the policy in January 2001 at the office of an American Family agent. The imposter represented to the agent that he was Hamilton, provided income information, presented an employee identification card with Hamilton’s name on it, and signed the application. Another person represented herself as Hamilton’s fiancée, and was the named beneficiary.
[FULL STORY]
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DRI members Nicholas C. Gristina, a partner with Porteous, Hainkel & Johnson, L.L.P. in New Orleans and associate Ralph Aucoin recently had a judgment affirmed by the Fifth Circuit Court of Appeal for the State of Louisiana in favor of a third-party defendant insurer, finding no coverage under its homeowners’ policy and no duty to defend. Third-party plaintiff took a writ with the Louisiana Supreme Court and it was recently denied. Brewster v. Hunter, 2010 wl 78600 (La. App. 5 Cir.3/9/10, writ denied, La. S.Ct. 6/4/10).
[FULL STORY]
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DRI wants to hear about your latest win! Send a short summary in Word format and a recent photo (.jpg or .tif attachment) of yourself to Barb Lowery by email (blowery@dri.org). Please note that it could take 2-3 months for your win to get published. Just as the defense victories continue to pile up, the same is true for the submissions!
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Leader Spotlight
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This week’s DRI leader is Amy Mass, counsel for The Hanover Insurance Group in Columbus, Ohio. In her current role, she is the national counsel of Hanover’s Schools Program, which provides insurance products and legal resources to primary/secondary schools, colleges and universities across the country. She also has an interest in ADR, and teaches dispute resolution as an adjunct professor at Capital Law School.
[FULL STORY]
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Legislative Tracking
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The Young Lawyers Legislative Subcommittee is led by Paul A. Wilhelm of Dykema Gossett PLLC in Detroit, Michigan, and co-vice chairs Joseph W. Ballard of Lewis, King, Krieg & Waldrop, P.C. in Knoxville, Tennessee, and Marie A. Trimble of Gordon & Rees LLP in San Francisco, California. Special thanks to these leaders, along with all of the other federal and state contributors. This week's tracking is limited to Delaware and Michigan.
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DELAWARE (Contributor: Jaime W. Luse, Tydings & Rosenberg LLP, Baltimore, MD)
HEALTH
SB 275 relating to physician licensure
• Authorizes and requires the Delaware Board of Medical Practice, which oversees physician licensure, to require doctors applying for licensure or relicensure to present service letters from health care facilities through which they have had direct access to patients, or admitting or staff privileges, attesting to their good character. The letters would include information, if it exists, about any reasonably substantiated incidents involving abuse or neglect, violence, threats of violence, and set forth any disciplinary action taken as a result of such conduct. Health care organizations or facilities providing the service letters would be immune from civil liability regarding any disclosures of information and their consequences and may not be made the subject of any libel or slander action by the person to whom the letter applies.
• 07/30/2010: Signed by Governor
MICHIGAN (Contributor: David M. George, Dykema, Ann Arbor, MI)
AUTOMOTIVE LAW
SB 1308 of 2010: Amends Public Act 118 of 1981
• Amend Public Act 118 of 1981, which regulates automobile dealer franchises, to do all of the following: (1) Expand the Act's list of prohibited activities by a manufacturer; (2) Prohibit a manufacturer from imposing a property use agreement on a dealer, unless monetary consideration or separate and valuable consideration that could be calculated to a sum certain were offered and accepted for the agreement; (3) Prohibit a manufacturer from charging back to a dealer an approved and paid warranty claim, unless the manufacturer showed that the claim was fraudulent or false within two years after payment or showed it to be unsubstantiated, to lack proper documentation, or to be improperly diagnosed or repaired within 12 months after payment; (4) Allow a manufacturer to conduct an audit of a dealer's records relating to a warranty or promotion claim submitted by the dealer; (5) Provide that a manufacturer that violated the Act "may" (rather than "shall") be liable for all court costs and attorney fees incurred by a dealer.
• 08/03/2010 – Approved by Governor
SB 1309 of 2010: Amends Public Act 118 of 1981
• This bill amends Public Act 118 to revise requirements for a manufacturer to compensate a dealer for certain items upon the termination of a dealer agreement. The bill would do the following (among other things): (1) Require the payment of fair and reasonable compensation for each vehicle that met certain criteria; (2) Require compensation for certain data processing programs, software, and equipment, the net cost of any upgrades or alterations to dealership facilities that the manufacturer required in the last two years, and the net cost of any furnishings the manufacturer required the dealer to purchase in the last two years; (3) Establish procedures for determining compensation for a dealer's fair rental value; (4) Require compensation for a dealer's goodwill under certain circumstances and specify procedures for determining the value of that goodwill.
• 08/03/2010 – Approved by Governor
CONSUMER FINANCE
HB 6340 of 2010: Amends State Housing Development Authority Act
• Requires meeting between lender and borrower before foreclosure by advertisement of Michigan state housing development authority mortgages.
• 07/21/2010 – Referred to Committee on Urban Policy
HEALTH LAW
SB 26-28 of 2010: Amends Public Health Code, Michigan Limited Liability Company Act, and Michigan Professional Service Corporation Act
• Taken together, the bills would amend separate acts pertaining to a professional service corporation or professional limited liability company formed between physicians, podiatrists, and physician assistants (PAs); prohibit such entities from comprising only PAs; allow an exception, with some conditions, for PA-only PLLCs or professional service corporations in existence before the bill's effective date; and require certain disclosures on the license renewal form for PAs. The bills are tie-barred to each other.
• 07/19/2010 – Approved by Governor
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Quote of the Week
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The three great essentials to achieve anything worthwhile are, first,hard work; second, stick-to-itiveness; third, common sense.
—Thomas Edison
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DRI CLE Calendar
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Oil Spill Litigation and Emerging Issues
August 12-13, 2010
Houstonian Hotel, Houston, TX
Twitter and Facebook and MySpace, Oh My: New Rules for New Technology (webcast)
September 16, 2010
Mediation: How Smart Lawyers and Clients Achieve Success in Business and Complex Litigation (webcast)
September 20, 2010
Nursing Home/ALF Litigation
September 23-24, 2010
Swissôtel Chicago, Chicago, IL
Defending Drug and Medical Device Litigation (primer)
September 29, 2010
Sidley Austin, Chicago, IL
Construction Law
September 30-October 1, 2010
Bellagio, Las Vegas, NV
Fire and Casualty
November 4-5, 2010
Millennium Knickerbocker Hotel Chicago, Chicago, IL
Asbestos Medicine
November 11-12, 2010
Hilton San Diego Bayfront, San Diego, CA
Insurance Coverage and Practice
November 18-19, 2010
Sheraton New York Hotel & Towers, New York, NY
Best Practices for Law Firm Profitability
November 18-19, 2010
Sheraton New York Hotel & Towers, New York, NY
For all other seminars and webcasts, click here.
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Current Issues in Medical Liability and Health Care Law
Punitive Damages: A State-by-State Compendium
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