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This Week's Double Feature
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Manufacture at Your Risk – Vendor’s Insurance Coverage Afforded by Manufacturers’ Liability Policies and Broader Risk Shifting Considerations
By Brandon J. Kroft
Cassiday Schade LLP, Chicago, Illinois
One of the first considerations of any claim specialist or defense attorney when reviewing the facts of a new case is whether the defendant’s liability should be born by another party. The ability to “shift the risk” varies according to industry and the type of claim. In modern product liability law, both the manufacturer and distributor of a product can be liable to a plaintiff for a product defect which results in injury or damage. As a consequence of potential exposure to otherwise innocent vendors who merely acted as conduits between the manufacturer and the consumer, many states allow vendors to shift their risk to the manufacturer through either common law theories of implied indemnity, or through application of provisions in product liability acts. Hulsey v. Sears, Roebuck & Co., 705 So.2d 1173, 1178 (La. Ct. App. 1997); AMERICAN LAW OF PRODUCTS LIABILITY §§ 52:72 & 52:83 (3d ed. 2009).
[FULL STORY]
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The CPSIA and All-Terrain-Vehicles: New Burdens at an Inopportune Time
By David E. Gluckman and Jill D. Jacobson
Bowman and Brooke LLP, Richmond, Virginia
The nation is abuzz with a new conversation topic: the Consumer Product Safety Improvement Act of 2008 (CPSIA), passed by Congress and signed into law last summer. Pub. L. No. 110-314, 122 Stat. 3016 (codified in scattered sections of 15 U.S.C.). Since many provisions of the CPSIA took effect February 10, these conversations have been tinged with increasing pangs of urgency. This article examines precisely how and when this sweeping mandate will affect all-terrain-vehicle (ATV) manufacturers and distributors. For the unwary, the news is unfortunately not so great.
[FULL STORY]
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DRI News
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"It's Jury Service, Not Duty — Strategies for Promoting Participation in the Civil Justice System"
The DRI Jury Service Task Force, January 2009, set out to study the state of jury service in the U.S. and the prospects for improvement. To read the report which is posted on DRI's website, click here.
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Third National Jury Summit
The American Board of Trial Advocates (ABOTA) will host the 2009 National Jury Summit "Protecting the Jury Trial—A Curriculum for Success," April 1-3, 2009, at The Ritz Carlton in San Francisco. For more information and to view a schedule of events, click here.
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New Member Spot
One of DRI’s latest members is Christopher K. Davis, the newly appointed managing associate for Kroll, located in Austin, Texas. He will supplement his high level security consulting assignments with the development and management of engagements for Kroll’s Business Intelligence & Investigations practice. Prior to joining Kroll, he served with the FBI as a supervisor and agent assigned to the Portland (Oregon) Division (Violent Crimes and SWAT Team), at FBI Headquarters in Washington, D.C. (Counter Intelligence), and in the Los Angeles Division, Long Beach Resident Agency (Counter Intelligence). Chris Davis is the son of DRI board member David M. Davis of Davis & Wilkerson in Austin.
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Save Money with DRI's Membership Incentives
Advocate Campaign: (a.k.a. “Member Get a Member”)
DRI members (except Officers and Board members) who recruit new “full dues paying” members receive a $100 fully transferable discount coupon for each such member recruited. Coupons are redeemable at DRI seminars and the Annual Meeting. Coupons may be combined for a given seminar or the Annual Meeting. Individual discount coupons are valid for two years from the date of issue. There is no limit to the number of coupons an advocate can accumulate. The advocate’s name MUST appear on the “referred by” space provided on the application.
Seminar Attendee Promotion
A defense lawyer who has either attended a DRI seminar or the DRI Annual Meeting qualifies for a one year, half-price membership in DRI. The defense lawyer must be a first time member of DRI.
Young Lawyer Campaign
Young Lawyers receive a certificate for free attendance at a future DRI seminars or the Annual Meeting. The certificate is good for two years from his/her join date. The certificate is non-transferable, and the holder must surrender the certificate at the time of pre-registration for the seminar of his/her choice.
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Toxic Torts and Environmental Law Seminar
March 19-20, 2009
Arizona Biltmore
Phoenix, AZ
On-site Registration Available!
Join us in Phoenix for the exclusive opportunity to build your practice while networking with colleagues from across the country. Nothing ever stays the same in toxic tort litigation. Advances in science and medicine create opportunities for defense lawyers to work with their clients to develop innovative ways to better defend companies in toxic tort actions. However, those same developments also create potential pitfalls and new challenges. This seminar will educate you on many of the latest scientific, medical and legal developments impacting toxic torts and equip you with the technical knowledge and practical litigation strategies you will need to represent your clients more effectively in this changing legal landscape. To view the program, click here or call 312.795.1101 for more information!
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Order Your Copy Today!
Trucking Policyholder’s Obligation to Preserve Coverage
DRI is pleased to announce the publication of a new compendium of the law of all 50 states dealing with trucking law disclaimers and the policyholder’s obligations to preserve coverage. A project of the DRI Trucking Law Committee, this publication describes each state’s law and procedure. The chapter authors are experienced lawyers who regularly practice in the fields of trucking law and insurance law. The topics and subtopics are analyzed following a question and answer format.
[FULL STORY]
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And The Defense Wins!
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DRI member Jean-Marie Sylla, Jr. of Taylor, Sylla & Agin, LLP in Washington, D.C., teamed with his partner recently to obtain a favorable appellate ruling on behalf of waterfront developer/Appellee, H.V. Pierhomes, LLC under Maryland law in Gallagher v. H.V. Pierhomes, LLC, 957 A.2d 628 (Md. App. 2008). Specifically, in a matter of first impression, the Maryland Court of Special Appeals, the state's intermediate court, held that: (1) pile driving was not an abnormally dangerous activity for purposes of strict liability; and (2) pile driving activity did not constitute either a private or a public nuisance under Maryland law.
[FULL STORY]
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DRI member John Q. Lewis from Jones Day (Cleveland) reports that he and another partner obtained a complete defense verdict for the firm's long-time client Mentor Corporation, a manufacturer of medical devices, in a product liability lawsuit involving ObTape, a surgically-implanted mesh sling used for treatment of stress urinary incontinence (Seeno v. Mentor, No. RG06264787 (Alameda County, CA)). After the six-week trial, the jury deliberated just over three hours before reaching its decision.
[FULL STORY]
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DRI member Warren McCollum of Fenley & Bate, LLP in Lufkin, Texas, obtained a no negligence finding in Jasper County District Court. Mr. McCollum was defending a workplace negligence suit brought against Sonic Restaurant, a non-subscriber to the Texas Workers Compensation Commission. Texas is one of only two states in the nation that permits employers to elect not to subscribe to the state workers compensation system. When an employer declines to participate, the employer is then open to suit in court. In such a suit, the employer cannot assert common law defenses such as the plaintiff’s contributory negligence or negligence of fellow employees. When the case is given to the jury, the liability portion of the court’s charge to the jury merely asks if the employer was negligent.
[FULL STORY]
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A national steel shipper was vindicated when DRI member Jenifer L. Kienle of Lewis, Brisbois Bisgaard & Smith LLP (Orange County, California) obtained summary judgment for the defendant in San Diego County Superior Court. Attorney Kienle defended Transload Services, LLC, against a personal injury claim by a pile driver who suffered career ending injuries after falling off the back of a commercial truck that the defendant loaded with steel sheet pile.
[FULL STORY]
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DRI member Eric G. Johnson of Smith, Sovik, Kendrick & Sugnet, P.C. in Syracuse, New York, successfully represented the defense in two medical malpractice matters recently. In the first case, on May 19, 2003, plaintiff Timothy Mathis, M.D., 51, an emergency room physician, reported to the office of Douglas Nuccio, D.C., a chiropractor, for an appointment. Mathis and his wife, Diane Mathis, 50, a homemaker, had been treating with Nuccio for about 10 years for chiropractic treatment and maintenance.
[FULL STORY]
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Legislative Tracking
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Legislative Update — EMPLOYMENT LAW
Pennsylvania
PA SB 363: Electronic monitoring.
• An Act providing for notice to employees of electronic monitoring by employers of network and information technology resources; establishing a cause of action; and imposing civil penalties.
• 02/20/2009 – Introduced; referred to Committee on Communications and Technology.
GOVERNMENTAL LIABILITY
Hawaii
HI HB 1037: Share of liability.
• This bill clarifies that government entities are only liable in certain cases for the percentage share of the damages they actually caused.
• 02/24/2009 – Finance Committee hearing scheduled for 02/27.
MEDICAL LIABILITY AND HEALTH CARE LAW
Missouri
MO HB 497: Health care information.
• To amend chapters 191 and 197, RSMo, by adding thereto sixteen new sections relating to patient safety, with a penalty provision; establishes requirements for transparency of health care information and patient safety.
• 02/24/2009 – Health Insurance Committee public hearing completed.
MO SB 410: Malpractice insurance.
• This act modifies various provisions relating to the laws governing medical malpractice insurance.
• 02/23/2009 – Introduced.
Texas
TX SB 1119: Recovery of expenses.
• An Act relating to the recovery of medical or health care expenses in civil actions.
• 02/24/2009 – Introduced.
PRODUCT LIABILITY
New York
NY HB 5884: Gun manufacturer liability.
• Makes manufacturers of guns liable to the state if their guns cause injury or death to a state employee acting within the course of his or her official duties; makes exceptions for compliance with a stated code of conduct or for weapons disposed of to military or law enforcement agencies or reported stolen.
• 02/23/2009 – Introduced; referred to Committee on the Judiciary.
MISCELLANEOUS
Connecticut
CT SB 1030: Apportionment of liability.
• An Act to allow liability to be apportioned to a person after the plaintiff withdraws a civil action against the person in the same manner as liability is apportioned to parties with whom the plaintiff has settled or whom the plaintiff has released from liability.
• 02/25/2009 – Introduced; referred to Committee on the Judiciary.
Oregon
OR HB 2802: Noneconomic damages.
• This bill repeals $500,000 limit on noneconomic damages recoverable in wrongful death actions and other statutorily created causes of action.
• 02/23/2009 – Introduced.
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Quote of the Week
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Let us not look back in anger, nor forward in fear, but around in awareness.
—James Thurber
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DRI CLE Calendar
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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
Culture Clash! Data Protection, Freedom of Information and Discovery — How to Protect Your Business in Transnational Disputes
May 13-14, 2009
Hotel Vier Jahreszeiten Kempinski, Munich, Germany
Drug and Medical Device Litigation
May 14-15, 2009
Sheraton New York Hotel & Towers, New York, New York
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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