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This Week's Double Feature
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The Employee Free Choice Act: Get Ready Now
By Brian J. McGrath, Lamson, Dugan and Murray, LLP
Overview
The Employee Free Choice Act (EFCA) will be a top priority following the recent presidential election. As proposed, EFCA will cause the most significant overhaul of labor relations since the passage of the National Labor Relations Act (NLRA) in 1935. The EFCA passed overwhelmingly by the House of Representatives last year, but was stopped from progressing in the Senate. Given that Democrats have built on their majority in the Senate and President-elect Obama’s support of the changes, there is a very strong likelihood of reintroduction and passage in the next Congress convening January 2009.
[FULL STORY]
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Working the Kinks Out: The Department of Labor Revises Its Regulations on the FMLA
By Eric E. Kinder, Spilman Thomas & Battle, PLLC
Nearly two years in the making, and after considering nearly twenty thousand comments, the U. S. Department of Labor has issued new final regulations regarding the Family and Medical Leave Act (FMLA). These regulations provide the first Department of Labor discussion of recent revisions to the FMLA that grant rights to unpaid leave to military families and substantially revise the enforcement of the FMLA as currently in place. Also the final rule modifies the proposed rules the Department of Labor issued in February 2008 in several significant ways.
[FULL STORY]
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Legal News
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Supreme Court Granted Certiorari — Employment Discrimination
Employment discrimination suits often involve "mixed motives." In many cases, there is evidence that the employment decision giving rise to the suit was motivated by a combination of lawful and unlawful motives. Who prevails in such cases—the plaintiff or defendant—will frequently depend on which side bears the burden of persuasion. The Supreme Court granted certiorari on December 5 in Gross v. FBL Financial Services, Inc., No. 08-441, to decide whether a plaintiff in a non-Title VII employment discrimination case must present "direct evidence" of discrimination to obtain a "mixed-motive" jury instruction that shifts the burden of persuasion to the defendant.
[FULL STORY]
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DRI News
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DRI Is Moving — Please Update Your Records
New address as of December 29, 2008:
DRI Headquarters
55 West Monroe Street
Suite 2000
Chicago, IL 60603
Phone: 312.795.1101
Fax: 312.795.0749
Email: dri@dri.org
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40% Off Sale on Many DRI Defense Library Series
Now through January 31, 2009, save 40% on many classic titles from DRI’s Defense Library Series including
• Uninsured Motorist and Underinsured Motorist Coverage – 2007
• Exploring Toxic Tort and Environmental Claims – 2007
• Jury Instructions for Employment Defense Litigators – 2007
• Understanding the New E-Discovery Rules – 2006
Add these valuable resources to your library or give them to colleagues as holiday gifts. Click here to view the entire list of discounted publications. To purchase these items, click here or visit the DRI bookstore at www.DRI.org.
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And The Defense Wins!
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DRI member Andrew Downs of Bullivant Houser Bailey PC in San Francisco successfully defended a commercial property insurer in an insurance bad faith action in federal court in Reno, Nevada. The policyholder sought over $2.5 million in damages resulting from an alleged underpayment of a windstorm claim. After more than two weeks of testimony, the jury awarded only the $4,331 in additional business income payments that the insurer agreed were due, and found no bad faith.
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After more than four years in litigation, on October 14, 2008, the court entered summary judgment in favor of defendant James Johnson Construction Co., Inc., represented by Ricardo H. Puente of Abadin Cook in Miami, Florida. On February 9, 2000, the plaintiff was employed by a subcontractor when he was injured at a Ritz Carlton Hotel/Condominium construction project in Coconut Grove, Florida. A large wooden beam struck him on the back of the head, rendering him permanently disabled. The plaintiff claims that he can never work in construction, is permanently disabled, and claimed that his wife divorced him due to this accident.
[FULL STORY]
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Andrew MacRae, a partner in Hull Henricks & MacRae LLP in Austin, Texas, recently achieved two defense victories for clients. In the first case, Mr. MacRae represented an orthopedic surgeon accused of medical malpractice whose motion to dismiss the lawsuit because of the inadequacy of the statutorily-required expert report was denied. The intermediate court of appeals ruled that it did not have jurisdiction to consider Mr. MacRae’s interlocutory appeal. The Texas Supreme Court, however, disagreed, holding that the Court of Appeals did have jurisdiction and remanding the case to that court for consideration of the appeal on its merits. This was the Texas Supreme Court’s first decision regarding the interlocutory appeal provision of the landmark tort reform legislation passed in 2003 and a significant victory for the defense bar. Case No. 06-0518; Rory Lewis, M.D. v. Dewayne Funderburk; In the Supreme Court of Texas.
[FULL STORY]
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DRI members Roy Umlauf and Maggie Bruya of Forsberg & Umlauf, PS in Seattle, Washington obtained two summary judgment wins recently. The first involved the dismissal of claims against a national retail store owner for a slip and fall lawsuit. The plaintiff sued the retailer, claiming she slipped and fell on water on the floor, sustaining a serious injury to her knee. Two surgeries and over $50,000 in medical expenses were claimed. The court granted summary judgment dismissing all claims, finding that the retailer did not have notice of any alleged hazardous condition and had inspected the area where the plaintiff fell within minutes before the fall and there was nothing on the floor. The court also found that the Pimentel exception to the notice requirement did not apply to the facts of this case, as the incident did not arise out of a self-service operation.
[FULL STORY]
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DRI members Amy Cook-Olson of Montgomery, Little, Murray & Soran, P.C. in Greenwood Village, Colorado, and Paul A. Faraci of Cooper & Clough, P.C. in Denver teamed with another Denver attorney recently to obtain a defense verdict for three physicians in Denver District Court.
[FULL STORY]
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DRI members, Mark J. Hill of Mark J. Hill & Associates, P.C. in Philadelphia and Jonathan Friedman of McKenna, Long & Aldridge, LLP in Atlanta recently obtained a favorable defense verdict for Cherokee Air Products, Inc. and Tippmann Sports, LLC, in which the plaintiff’s counsel asked a jury for an award of over $13 million, in a two week products liability trial in the State Court of Gwinnett County, Georgia captioned, Richard and Melissa Hassberger, Individually and as Next Friends of Spenser Hassberger, and Spenser Hassberger, Individually v. Jeff Teves and Cherokee Air Products, f/k/a/ Tippmann Pneumatics, Inc., and Tippmann Sports, LLC, No. 04C-13117-3.
[FULL STORY]
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On October 10, the trial team of DRI members Suzzanne Decker, Justin Eller and Michael Howard of Miles & Stockbridge, P.C. in Baltimore obtained a defense verdict in favor of their client, Medline Industries, Inc., in a jury trial before Chief Judge Legg in the U.S. District Court for the District of Maryland. Medline Industries is a nationwide distributer of medical supplies and operates a facility in Havre de Grace, Maryland.
[FULL STORY]
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Keep those defense wins coming! Send a short summary and recent photo of yourself to Barb Lowery by e-mail (blowery@dri.org).
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Legislative Tracking
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Legislative Update — ASBESTOS
Ohio
OH SB 370: Trust claims.
• To enact sections 2307.951, 2307.952, 2307.953, and 2307.954 of the Revised Code to require claimants in asbestos tort actions to make certain disclosures pertaining to asbestos trust claims that have been submitted to asbestos trust entities for the purpose of compensating the claimant for asbestos exposure.
• 12/09/2008 – Reported out of Judiciary Committee as amended.
CIVIL RIGHTS AND GOVERNMENTAL LIABILITY
Nevada
NV HB 43: Discrimination in employment, housing and public accommodations.
• An Act relating to civil actions; revising provisions prohibiting discrimination in employment, housing and public accommodations; tolling certain actions if a complaint alleging a violation of certain provisions relating to real property is filed with the Nevada Equal Rights Commission; providing a penalty; and providing other matters properly relating thereto.
• 12/06/2008 – Prefiled; referred to Committee on Government Affairs.
COMMERCIAL LITIGATION
Nevada
NV HB 22: Deceptive trade practices.
• An Act relating to trade practices; providing that certain persons who do not register with the Consumer Affairs Division of the Department of Business and Industry are engaged in a deceptive trade practice; authorizing the Commissioner of Consumer Affairs to impose a fine on persons who engage in such a deceptive trade practice; and providing other matters properly relating thereto.
• 12/07/2008 – Prefiled; referred to Committee on Commerce and Labor.
INSURANCE LAW
Oklahoma
OK HB 1021: Recovery limits.
• An Act relating to the Compulsory Insurance Law; limiting recovery for damages or claims against insurer for liability for motor vehicle accidents in certain circumstances; providing exceptions; providing for who may assert limitation; providing for codification; and providing an effective date.
• 12/09/2008 – Prefiled.
MEDICAL LIABILITY AND HEALTH CARE LAW
Missouri
MO SB 18: Missouri Universal Health Assurance Program.
• An Act to establish the Missouri Universal Health Assurance Program; a publicly financed, statewide program that will provide comprehensive health care services for Missouri residents; to establish the Missouri Health Care Trust Fund, which will be used to finance the program; and for related purposes.
• 12/01/2008 – Prefiled.
Montana
MT LD 350: Medicaid third-party liability.
• An Act generally revising laws relating to recovery of Medicaid benefits for services paid on behalf of Medicaid recipients; removing the county from the recovery of Medicaid benefits process; providing definitions; and for related purposes.
• 12/08/2008 – Pre-introduction letter sent.
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Quote of the Week
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Preparation, I have often said, is rightly two-thirds of any venture.
— Amelia Earhart
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DRI Cares
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Sending Your Submission
Are you or your law firm actively involved in community service or pro bono work? If so, DRI would like to hear about it. Please send a short article (750 words max) describing your involvement to Barb Lowery (blowery@dri.org). Representative submissions will be selected for inclusion in The Voice.
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DRI CLE Calendar
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Ethical, Effective and Enjoyable Lawyering (webconference)
December 11, 2008
Global Warming Policies of the Obama Administration (webcast)
December 15, 2008
Defending Medical Monitoring Claims (webconference)
December 16, 2008
Dissecting the Anatomy of a Trucking Case — Suit Filed, Now What? (webconference)
December 18, 2008
Dissecting the Anatomy of a Trucking Case — The Trial and Beyond (webconference)
January 20, 2009
Civil Rights and Governmental Tort Liability
January 28-30, 2009
The Ritz-Carlton New Orleans, New Orleans, Louisiana
Sharing Success — A Seminar for Women Lawyers
March 5-6, 2009
Loews Santa Monica Beach Hotel, Santa Monica, California
Medical Liability and Health Care Law
March 11-13, 2009
Walt Disney World Dolphin, Lake Buena Vista, Florida
Damages
March 18-20, 2009
Bellagio, Las Vegas, Nevada
Toxic Torts and Environmental Law
March 19-20, 2009
Arizona Biltmore, Phoenix, Arizona
For all other seminars and webconferences, click here.
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Trade Secrets and Agreements Not to Compete
DRI Defense Practice Form Book
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