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This Week's Feature
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VOIR DIRE IN CIVIL CASES
By Robert B. Clemens
Bose McKinney & Evans, Indianapolis, Indiana
Conventional wisdom has it that a “good” voir dire is equal parts of (1) rapport-building; (2) information gathering; and (3) conditioning (or information providing).
Questionnaires
The threshold source of information on each juror is, of course, the jury questionnaire. In some counties, one can expect the questionnaires to be delivered with the jurors, and there is a flurry of activity as counsel whip through the papers with a highlighter to try to identify the demographic factors which reflect the attorney’s own biases as to what makes a “good” or “bad” juror for any particular case. In other counties, one may be able to arrange to receive a packet of jury questionnaires as much as a week before the trial. The questionnaires often provide a good deal of information: age, marital status, occupational history, prior jury experience, and information regarding prior accidents, claims and litigation.
[FULL STORY]
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Legal News
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Textron May Have Waived Work Product Protection on its Tax Reserve Workpapers
The First Circuit Court of Appeals has affirmed the district court's holding in U.S. v. Textron that Textron's tax accrual workpapers could be afforded protection as work product. However, the court remanded the case for further analysis about whether that protection was waived. The First Circuit's application of the work product doctrine will be welcomed by those taxpayers that claim that their tax accrual workpapers were prepared in anticipation of litigation. However, to the extent that taxpayers routinely share their tax accrual workpapers with their external auditor, as Textron did, the portions of the court's opinion that relate to waiver raise as many uncertainties as they resolve.
(Source: Mayer Brown News, www.mayerbrown.com)
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DRI News
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"Hail to the Chief" Award
Congratulations to DRI First Vice President Cary E. Hiltgen who was given a "Hail to the Chief" Award from the Oklahoma Association of Defense Counsel (OADC) at their winter meeting, January 23. At DRI's 2009 Annual Meeting in October, Cary E. Hiltgen will be the second OADC member to serve as DRI President. Former DRI and OADC President Burt Johnson was in attendance to see Cary accept the award.
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Walter Judge Elected to Judicial Nominating Board
In a contested election, DRI member Walter Judge was elected by his fellow members of the Vermont Bar Association to the Vermont Judicial Nominating Board. The Judicial Nominating Board is a statutory body in Vermont that screens, reviews, and nominates candidates to fill judicial vacancies in the state. The board consists of (1) attorneys elected by the Bar; (2) members of the public appointed by the Governor; and (3) members of the legislature appointed by House and Senate leaders.
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Medical Liability and Health Care Law Seminar
March 11-13, 2009
Walt Disney World Dolphin
Lake Buena Vista, Florida
Join us in Lake Buena Vista for the exclusive opportunity to build your practice while networking with colleagues from across the country. DRI’s 2009 Medical Liability and Health Care Law Seminar features current topics in medicine and strategies for defending cases where medical malpractice is alleged. This year’s program includes topics of interest to claims professionals, in-house counsel, defense attorneys, and risk management personnel. Attorneys and experts from across the country will address topics related to stems cells, robotic surgery, issues related to electronic medical records, and much more. An outstanding ethics and professionalism program will also be offered. To register now, click here or call 312.795.1101 for more information!
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Expert Witness Database
Did you know that your DRI membership entitles you to exclusive access to DRI’s Expert Witness Database at absolutely no charge? This leading repository contains expert witness contact information and documents on more than 65,000 plaintiff and defense experts. Whether you are searching for an expert for trial or conducting research on an expert you are facing, DRI’s Expert Witness Database provides the needed resources to build a winning defense. To access the database, visit www.DRI.org and log in. If you do not remember your password, call 312.795.1101 or send an e-mail to dri@dri.org and a DRI Customer Service Representative can provide you with a new password.
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And The Defense Wins!
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In a jury trial in Allegany County, Maryland, Peggy Fonshell Ward of Moore & Jackson, LLC in Baltimore successfully represented a couple who owned a dairy farm with a “homemade” feed bin and ladders ascending 30 feet to its top. The upper ladder was welded to the bin, and the lower one was raised from the ground and slid under the upper ladder. The feet of the lower ladder were sunk into concrete, but the lower ladder itself was not secured to the bin, resulting in shakiness. In addition, at the point where the two ladders overlapped for about four feet, the rung spacing of the two ladders did not mesh, causing some unevenness in the stepping distances between the rungs.
[FULL STORY]
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DRI members Kevin L. Chignell and Andrew A. Bennington of Parker Poe Adams & Bernstein LLP in Raleigh, North Carolina, obtained summary judgment in favor of a financing company in a personal injury action arising out of the repossession of a mobile home. The plaintiff fell and was injured as she exited the rear of a mobile home from which repossession agents had removed a set of wooden stairs. The plaintiff alleged that the moving company hired to repossess the mobile home negligently failed to warn her that the stairs had been removed. Despite alleging that the moving company was an independent contractor, the plaintiff claimed that the financing company was also liable for her injury because repossessing a mobile home is an inherently dangerous activity.
[FULL STORY]
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DRI members Scott McDaniel and Nicole Longwell, members of McDaniel, Hixon, Longwell & Acord, PLLC in Tulsa, Oklahoma, in conjunction with other members of a joint defense group recently defeated a broadly sweeping Motion for Preliminary Injunction filed by the Attorney General of Oklahoma in federal court against 13 members of the poultry industry. The case, Oklahoma v. Tyson Foods, et. al., was filed in 2005 by Attorney General Drew Edmondson with the assistance of the Motley Rice law firm, and is being monitored nationally as another example of a state attorney general outsourcing a state’s police powers to contingent fee counsel, and because of its implications as a template for plaintiffs’ firms assault on animal agriculture across the U.S.
[FULL STORY]
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Buzzy Riis and Katie L. Hammett of Hand Arendall LLC in Mobile, Alabama, successfully defended American Aggregate Haulers, Inc. and its driver, John Martin Slywczuk, in the Circuit Court of Escambia County, Alabama, in a personal injury lawsuit arising from a motor vehicle collision involving a commercial tractor-trailer. In Nelson, et al. v. American Aggregate Haulers, et al., the plaintiff alleged negligence and wantonness by the driver, and argued that he (and therefore the company through vicarious liability) was negligent and/or wanton for making a left-hand turn while operating a commercial tractor-trailer in early morning foggy conditions.
[FULL STORY]
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Russell E. Reviere, a member of Rainey, Kizer, Reviere & Bell, PLC, in Jackson and Memphis, Tennessee obtained a defense verdict on behalf of an insurer in a civil case following a three-day jury trial in the Western District of Tennessee before the Honorable Diane K. Vescovo. Mr. Reviere was assisted both at the summary judgment phase and at trial by Erin A. Melton, an associate in the firm’s Memphis office. The lawsuit alleged that the defendant insurer breached the insurance policy issued to the insured by failing to fully pay on a fire loss and also included bad faith allegations and a claim for violation of the Tennessee Consumer Protection Act. The insurer asserted that it had already fully paid the plaintiff’s loss and vigorously disputed the extra-contractual allegations made by the insured.
[FULL STORY]
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DRI wants to hear about your latest win! 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
Oklahoma
OK SB 522: Liability for corporations.
• An Act relating to torts; defining terms; stating limitations to certain provisions; clarifying asbestos-related liabilities for certain corporations; establishing acceptable methods of valuation of certain assets under specified circumstances; providing for codification; and providing an effective date.
• 02/02/2009 – Introduced; referred to Judiciary Committee.
South Dakota
SD HB 1203: Successor liability.
• An Act to limit asbestos-related liabilities for certain successor corporations.
• 01/29/2009 – Introduced; referred to Commerce Committee.
EMPLOYMENT LAW
Washington
WA HB 1528: Employer communications.
• An Act prohibiting certain employer communications about political or religious matters; and adding new sections to chapter 49.44 RCW.
• 01/22/2009 – Introduced; public hearing held 02/03/2009.
MEDICAL LIABILITY AND HEALTH CARE LAW
New York
NY SB 1521: Duties for pharmacies.
• Establishes duties for pharmacies when pharmacists employed by such pharmacy refuse to fill prescriptions on the basis of personal beliefs; requires a pharmacy to ensure the prescription is filled by another pharmacist; requires the pharmacy to inform individuals of items not in stock and requires such items to be ordered by another pharmacist without delay; sets forth penalty provisions.
• 02/02/2009 – Introduced.
Pennsylvania
PA HJR 199: Damages limitations.
• Proposing an amendment to the Constitution of the Commonwealth of Pennsylvania, authorizing legislation to limit recovery of noneconomic and punitive damages in medical malpractice actions.
• 02/02/2009 – Introduced.
Oklahoma
OK SB 264: Duties for pharmacies.
• An Act relating to public health and safety; requiring pharmacies to dispense certain drugs and devices in certain manner; clarifying right of pharmacy to refuse to dispense a drug or device in certain circumstances; requiring pharmacies to provide options in certain circumstances; directing pharmacies to deliver certain services in specified manner; requiring pharmacies to display certain notice; providing text of certain notice; requiring inclusion of certain information; permitting certain person to file a complaint; directing the Oklahoma State Board of Pharmacy to make certain investigation and determination; authorizing the Board to impose sanctions in certain circumstances; permitting certain persons to commence civil action in specified circumstance; permitting the Oklahoma Attorney General to commence civil action in certain circumstance; providing for codification; and providing an effective date.
• 02/02/2009 – Introduced; referred to the Judiciary Committee.
NURSING HOME LITIGATION
Oklahoma
OK SB 414: Nursing Home Care Act amendments.
• An Act relating to the Nursing Home Care Act; amending 63 O.S. 2001, Section 1-1939, as amended by Section 2, Chapter 429, O.S.L. 2003 (63 O.S. Supp. 2008, Section 1-1939), which relates to liability to residents; requiring assets to cover certain claims; allowing certain action; providing for personal liability under certain circumstances; and providing an effective date.
• 02/02/2009 – Introduced; referred to Health and Human Resources Committee.
PRODUCT LIABILITY
Kentucky
KY HB 205: Dust.
• Create new sections of KRS Chapter 411 to establish procedures for civil actions arising from exposure to silica or mixed dust; define related terms; require that a physical impairment be an essential element in a civil action based on exposure to silica or mixed dust; require a prima facie showing of a physical impairment before bringing or maintaining a civil action; provide for dismissal of civil actions for failure to establish a prima facie showing of a physical impairment resulting from exposure to silica or mixed dust; toll the statute of limitations on claims not barred by the effective date until such time as an individual discovers or should have discovered a physical impairment; distinguish claims for nonmalignant conditions from claims for silica or mixed dust related cancer; establish requirements for wrongful death claims; and for related purposes.
• 02/03/2009 – Introduced.
Oklahoma
OK HB 2199: Statute of limitations.
• An Act relating to civil procedure; amending 12 O.S. 2001, Section 95, as last amended by Section 4, Chapter 99, O.S.L. 2008 (12 O.S. Supp. 2008, Section 95), which relates to limitations of actions; providing statute of limitations for products liability actions; defining term; and providing an effective date.
• 02/02/2009 – Introduced.
MISCELLANEOUS
Oklahoma
OK SB 1122: Joint liability.
• An Act relating to damages; amending Section 18, Chapter 368, O.S.L. 2004 (23 O.S. Supp. 2008, Section 15), which relates to joint tortfeasor liability; eliminating certain liability; stating applicability of act; and providing an effective date.
• 02/02/2009 – Introduced.
Oklahoma
OK SB 666: Lawsuit reform.
• An Act relating to civil procedure; requiring appointment of attorney for specified purpose; providing for award of certain fees; requiring plaintiff to attach certain affidavit in civil action for negligence; providing requirements for Oklahoma Uniform Jury Instructions; amending sections of the Oklahoma Statutes relating to dismissal and interest on judgments; stating requirements for expert opinions; providing procedure for summary judgment; and for related purposes.
• 02/02/2009 – Introduced.
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Quote of the Week
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Time is like money, the less we have of it to spare the further we make it go.
—Josh Billings
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DRI CLE Calendar
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Strategies for Success in Drug and Medical Device Litigation (webconference)
February 10, 2009
Attorneys' Fees under ERISA: Recent Developments and Trends (webconference)
February 17, 2009
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
Insurance Coverage and Claims Institute
April 1-3, 2009
The Westin Michigan Avenue Chicago, Chicago, Illinois
Product Liability Conference
April 15-17, 2009
Hilton San Diego Bayfront, San Diego, California
Commercial and Intellectual Property Litigation Symposium
April 22-24, 2009
Wyndham Chicago, Chicago, Illinois
Life, Health, Disability and ERISA
April 22-24, 2009
Sheraton New York Hotel & Towers, New York, New York
Employment Law
April 30-May 1, 2009
JW Marriott Orlando, Grande Lakes, Orlando, Florida
Electronic Discovery
May 7-8, 2009
Hilton New York, New York, New York
For all other seminars and webconferences, click here.
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Trucking Policyholder's Duty to Preserve Coverage
Trade Secrets and Agreements Not to Compete
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