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Legal News
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Wyeth v. Levine — U.S. Supreme Court Rules on Preemption
The Supreme Court’s decision in Wyeth v. Levine today underscores the continued importance of a case-specific analysis of preemption in the prescription drug context. The Court held that federal law did not preempt plaintiff Levine’s state-law claim that labeling for the prescription drug Phenergan failed to adequately warn about the risks of a particular method of administration. The Court concluded that “absent clear evidence that the FDA would not have approved a change to Phenergan’s label, we will not conclude that it was impossible for Wyeth to comply with both federal and state requirements.”
[FULL STORY]
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This Week's Double Feature
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Bifurcation: Shift the Focus and Level the Playing Field in Coverage and Bad Faith Litigation
By Charles M. McDaniel, Jr. and Ann H. Bracco
Carlock, Copeland & Stair, LLP
The most significant challenge with insurance coverage and bad faith litigation is protecting the files of the insurer and keeping a defensible coverage case from becoming mired in an expensive and time-consuming bad faith quagmire. Insured's counsel, upon filing suit alleging failure to defend and/or indemnify an insured, typically serves extensive and onerous discovery requesting claims handling manuals, the underlying claim file, coverage opinions relating to the coverage denial, and the underwriting file. Moreover, counsel requests depositions of all claim representatives and their managers involved in the decision to deny coverage; all of which is time-consuming and expensive.
[FULL STORY]
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CPSC Stays Enforcement of New Testing Regulations in the Consumer Product Safety Improvement Act of 2008 By Tara Ellis and Sean W. Shirley
Balch & Bingham LLP
On August 14, 2008, President Bush signed the Consumer Product Safety Improvement Act of 2008 (the “Act”). The Act, prompted by the well-publicized recalls of imported toys with lead paint and other hazards, is the most comprehensive overhaul of consumer product safety laws since the Consumer Product Safety Act’s passage created the U.S. Consumer Product Safety Commission (CPSC) in 1972.
[FULL STORY]
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DRI News
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Enhanced Legislative Tracking
Check out this week’s new legislative tracking section! Fueled by DRI’s Young Lawyers Committee, this week’s report is an alphabetical listing of legislation from Alabama through Minnesota. Next week, the second half of the states will be featured. The Young Lawyers Legislative Subcommittee is led by co-chairs Emily Turner Landry of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC in Memphis, Tennessee and Sean W. Shirley of Balch & Bingham LLP in Birmingham, Alabama, plus vice-chair Paul A. Wilhelm of Dykema Gossett PLLC in Detroit, Michigan. Special thanks to these leaders, along with all of the other state contributors.
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Good News for Young Lawyers
DRI recently changed its guidelines regarding its young lawyer certificates. The certificate is redeemable as long as you are a member of the Young Lawyers Committee. The holder must be registered for the seminar at the time of redemption. If you joined as a young lawyer and never used your certificate, please call Marge Motluck at 312.698.6237 and take advantage of this special offer.
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Culture Clash! Data Protection, Freedom of Information & Discovery – How to Protect Your Business in Transnational Disputes
May 13-14, 2009
Hotel Vier Jahreszeiten Kempinski
Munich, Germany
As any practitioner or in-house lawyer is well aware, the obligations for disclosing and/or protecting data have become increasingly complex and difficult under often conflicting regulatory and common law schemes. This conference offers an excellent opportunity to learn the latest developments in data protection and privacy issues from corporate in-house counsel, European regulators, U.S. judges, and practicing attorneys who deal with these issues on a daily basis. Don’t miss this unique networking opportunity to meet with lawyer members of judicial and administrative agencies from Europe and the United States! To download the program brochure, please click here. To register, click here or contact DRI headquarters at 312-795-1101. Online, telephone and fax registrations require a credit card. A check may be used for registrations by mail.
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Add This Valuable Resource to Your Library Today!
Trade Secrets and Agreements Not to Compete is a compendium of state law specific to the dynamic areas of trade secrets and non-competition covenants. A project of the DRI Commercial Litigation Committee, this publication describes each state's law and procedure in these increasingly important subject areas. Chapter authors are lawyers who regularly practice in these two closely related areas. They advise employers in their states as they draft non-competes and seek protection for the secrets the employers have developed over the years. This publication is written for lawyers who work closely with employers to protect their clients' interests.
[FULL STORY]
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And The Defense Wins!
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DRI member Robert “Booter” Ryan, a partner at Huddleston Bolen LLP in Charleston, West Virginia, recently received a defense verdict for ERA Advantage Realty after a week-long trial in West Virginia state court in a case alleging negligence, fraud, breach of fiduciary duty and punitive damages. ERA served as the plaintiffs’ agent in their purchase of a home in Mercer County. The plaintiffs alleged that ERA committed negligence, gross negligence, intentional non-disclosure of known defects, intentional misrepresentation, fraud, breach of contract, breach of fiduciary duty and breach of good faith and fair dealing. The plaintiffs claimed that a real estate agent for ERA failed to obtain a home inspection as promised, failed to obtain a home warranty as promised, “duped” them into waiving a home inspection at closing and intentionally attempted to cover-up these failures.
[FULL STORY]
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George E. Lieberman, partner with Vetter & White in Providence, Rhode Island, defended the Narragansett Bay Commission (NBC), a Rhode Island entity, in an eminent domain case. NBC acquired temporary and permanent easements in private property in order to construct a facility to control the flow of material into the Narragansett Bay. The private property owner demanded compensation in the amount of $2,393,000 for the takings of its property, including pre-taking lost rental income. The owner claimed that the highest and best use of its property was for development of a 14-story luxurious condominium. Before litigation commenced, NBC valued the taken property at $264,690 and paid that sum to the owner.
[FULL STORY]
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DRI member Steve Farrar, a partner at Smith Moore Leatherwood in Greenville, South Carolina, teamed with a colleague to successfully defend a building contractor during a weeklong trial in Greenville. The contractor was sued for breach of contract relating to construction costs and repurchase of the properties by the contractor after a plaintiff went to prison on tax related charges. The plaintiffs alleged forged documents, fraudulent real estate transactions and defamatory comments by the contractor. The jury not only found for the contractor but returned a verdict in favor of the contractor for damages arising from the plaintiffs filing multiple lis pendens on various properties owned by the contractor.
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Rebecca Boyd Dublinske, a partner with Dickinson, Mackaman, Tyler & Hagen, P.C. in Des Moines, Iowa, successfully defended the appeal of an award of summary judgment in a negligent supervision and premises liability case in the Eighth Circuit Court of Appeals. Bland v. Verizon Wireless (VAW) L.L.C., 538 F.3d 893 (8th Cir. 2008). The district court found that the plaintiff's expert witness' testimony was not sufficient under a Daubert analysis to survive defendants' motion for summary judgment. Specifically, the court found that the treating physician's testimony was not sufficient under the differential diagnosis analysis or the temporal proximity analysis.
[FULL STORY]
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DRI member Bruce Keplinger of Norris & Keplinger in Overland Park, Kansas, teamed with a colleague recently to successfully represent Mary Clare Reardon, M.D., and her group, Northland Obstetrics & Gynecology, Inc., in a medical malpractice/wrongful death case. The plaintiff, a 24-year-old female, gave birth in June 2004 to a stillborn baby at 21 weeks.
[FULL STORY]
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DRI members James W. Ozog and Jennifer J. Karpinski of Wiedner & McAuliffe, Ltd. in Chicago, Illinois, and J. Carter Fairley of Barber, McCaskill, Jones & Hale, P.A. in Little Rock, Arkansas, successfully defended Lakewood Engineering and Manufacturing Company in a product liability action and appeal brought before The Eighth Circuit Court of Appeals, Presley v. Lakewood Engineering and Manufacturing Co., 2009 WL 129493, 2009 U.S. App. LEXIS 967. After full briefing and oral arguments, the Court of Appeals unanimously affirmed both the trial court’s exclusion of the plaintiffs’ causation expert under Daubert v. Merrell Dow Pharms., Inc. and Federal Rule of Evidence 702, and the grant of summary judgment.
[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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Leader Spotlight
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Seth C. Turner is an associate at Flynn & Associates, P.C. in Quincy, Massachusetts. Mr. Turner is an active member of DRI’s Trucking Law Committee. He has served as the committee editor of the Trucking Law Committee’s recently released DLS publication titled Trucking Policyholder's Duty to Preserve Coverage.
[FULL STORY]
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Legislative Tracking
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Legislative Tracking
ALABAMA (Contributor: Jennifer S. Morgan, Hand Arendall LLC)
EVIDENCE AL HB531: Extension of Daubert standard for expert witnesses in civil cases
• Under current Alabama law, Daubert only applies in the criminal context. This bill would expand the Daubert standard to civil cases for determining the admissibility of expert witness testimony in Alabama cases.
• 2/17/09- Introduced; referred to Judiciary Committee.
INSURANCE LAW
AL SB0234: Revision of Alabama Mini-Code relating to consumer credit transactions
• This bill would expand the definition of “creditor” to include any person who had had a credit transaction secured by a residential structure more than one time. It would also remove the current licensure exemption for life insurance companies so that a life insurance company acting as a creditor would have to maintain a license for each location where activity is conducted.
• 2/26/09- Banking and Insurance Committee first substitute offered
TOXIC TORTS AND ENVIRONMENTAL LAW
AL SB173: Accrual date for toxic tort cause of action
• This bill would provide that a cause of action for exposure to a toxic substance accrues from the date the injured party should have reason to discover the injury giving rise to the civil action. It would also allow a person to bring more than one cause of action based on a single course of conduct by providing that each cause of action based on a single course of conduct accrues separately. The law would apply retroactively to revive toxic tort causes of action that may have been barred under previous Alabama law.
• 2/3/09; Introduced; referred to Judiciary Committee.
[MORE]
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Quote of the Week
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Gratitude is not only the greatest of virtues, but the parent of all others.
— Cicero
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DRI CLE Calendar
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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
Corporate Representative Deposition (webcast)
April 29, 2009
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
First Response — Extra-Record Discovery Request Post-Glenn (webcast)
May 20, 2009
For all other seminars and webcasts, click here.
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Evidentiary Privileges for Corporate Counsel
Trucking Policyholder's Duty to Preserve Coverage
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