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This Week's Feature
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Excluding the Late-Identified Expert Witness
By Eric Frisch and Molly Barrett
Carlock, Copeland & Stair, Atlanta, Georgia
You are fine-tuning your case on the eve of trial when, after years of investigation, discovery, and depositions, you get an email from your opponent. Your frustration builds as you read that your opponent is calling a new expert witness. To make matters worse, your opponent has not provided a report or summary of the opinions or even proposed dates for a deposition.
[FULL STORY]
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Legal News
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Nolan v. Weil-McLain, Docket No. 103137, April 16, 2009 (Illinois Supreme Court) - Was It Worth the Wait? Yes, If You Have a Sole Proximate Cause Defense
As many defendants know, a trial anywhere in Illinois is unfair based upon the Lipke v. Celotex Corp., 153 Ill.App.3d 498 (1987) decision. When you are the only defendant left at trial, the jury will only hear plaintiff's exposure to your products or equipment. Other exposures are irrelevant and forbidden. A well-renowned national counsel in asbestos litigation has likened it to showing up on the day of trial with handcuffs on. The Supreme Court of Illinois has finally put this issue to rest.
[FULL STORY]
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DRI News
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High Honors for Diversity
Lewis Brisbois Bisgaard & Smith LLP has been ranked #1 in the nation for diversity by MultiCultural Law magazine for 2009. The firm was also ranked fifth in the magazine’s “Top 100 Law Firms for Women,” seventh in the “Top 50 Law Firms for Partners” and fifth in the “Top 25 Law Firms for Hispanics” listings. Congratulations!
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DRI’s Young Lawyers Seminar – Maximizing Litigation Success: Developing, Evaluating and Preparing Your Case from Beginning to End
June 4-5, 2009
Caesars Palace
Las Vegas, Nevada
DRI’s Young Lawyers Committee proudly presents its annual trial advocacy seminar for defense trial lawyers and corporate counsel who have been practicing for 10 years or less. This program is designed to maximize the critical skills that defense lawyers and in-house counsel need in order to manage the defense of their corporate clients. This seminar boasts distinguished faculty from around the country, including in-house lawyers from some of the most recognized companies in America, experienced and successful trial lawyers, a state Supreme Court justice, and some of the best speakers from DRI’s Young Lawyers Committee.
[FULL STORY]
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May 8th Deadline — DRI’s 2009 Law Student Diversity Scholarship
The Law Student Diversity Scholarship program is open to incoming second- and third-year African American, Hispanic, Asian, Pan Asian and Native American students. Incoming second- and third-year female law students are also eligible, regardless of race or ethnicity. Two scholarships in the amount of $10,000 each will be awarded to successful applicants. The application and all other requested material must be received by May 8, 2009. To download the scholarship application, click here.
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CalBizLit Blog
DRI’s Product Liability Conference recently received positive coverage in the CalBizLit blog, written by long-time DRI member Bruce Nye, the managing partner of Adams | Nye | Trapani | Becht LLP in San Francisco. Click here to read the postings. Other posts regarding California product liability matters, Proposition 65, consumer law and business litigation appear at www.calbizlit.com.
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All the Privileges You Could Ask For and More - Evidentiary Privileges for Corporate Counsel
The first comprehensive publication in this area for the Defense Library Series is a body of work that serves as a single resource for understanding the evidentiary privileges faced most often by corporations in general and their inside and outside counsel in particular. Skillfully written by various authors, the publication analyzes each selected privilege and related issues in depth, so that corporate counsel can gain a fundamental understanding of each topic.
[FULL STORY]
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And The Defense Wins!
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DRI members Dean T. Barnhard, Joseph G. Eaton, William A. Hahn and Kara M. Moorcroft of Barnes & Thornburg LLP in Indianapolis, Indiana, and DRI President Marc E. Williams of Huddleston Bolen, LLP in Huntington, West Virginia, represented Dow AgroSciences LLC and The Dow Chemical Company (collectively DAS) in a significant wrongful death case in the Southern District of West Virginia. The district court granted summary judgment for DAS just weeks before the trial was scheduled to begin. The Fourth Circuit affirmed that decision on April 8, 2009. See White v. Dow Chem. Co., No. 08-1165, 2009 WL 931703 (4th Cir. April 8, 2009).
[FULL STORY]
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DRI member Melissa J. Smallacombe of Ryan & Smallacombe, PLLC in Albany, New York tried consolidated plaintiffs’ cases in the Rochester Supreme Court and received a defense verdict. The plaintiffs consisted of, in part, a husband and wife driving from Syracuse to their home in Pittsburgh, who stopped at the Thruway Rest Area/Plaza to buy coffee and use the facilities. As the husband walked their dog, the wife walked to the building and slipped and fell on ice on the curb, breaking her shoulder and arm.
[FULL STORY]
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Patrick C. (Rick) Quinlivan, managing partner for Quinlivan Wexler LLP in Santa Ana, California, recently obtained a defense verdict in Miranda vs. Cincinnati Incorporated, a product liability case in Los Angeles County. This was the third defense verdict that Mr. Quinlivan has obtained in less than 15 months for his client, Cincinnati Incorporated. As in the two prior cases, the product at issue was a press brake, a machine used primarily for bending metal.
[FULL STORY]
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DRI members Jonathan Gross and Jay E. Framson of Bishop, Barry, Howe, Haney & Ryder in Emeryville, California won a favorable coverage ruling from the California Court of Appeals in Roberts v. Assurance Co. of America, 163 Cal.App.4th 1398, 78 Cal.Rptr.3d 361 (2008). In Roberts, the court unanimously upheld summary judgment in favor of Assurance Company of America arising from a first-party property insurance claim involving damage caused by a landslide to a house under construction.
[FULL STORY]
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DRI members Mike McWilliams, LeAnn Nealey and Robert Miller of Butler, Snow, O’Mara, Stevens & Cannada, along with co-counsel Michael Bai of Littleton Joyce Ughetta Park & Kelly LLP, successfully defended Doosan Infracore America Corporation, f/k/a Daewoo Heavy Industries America Corporation. The plaintiff was involved in an accident at Central Pipe Supply in Pearl, Mississippi, while operating a Daewoo GS25S forklift truck.
[FULL STORY]
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On February 26, 2009, after a 14-day trial, Foley & Mansfield, PLLP and Hawkins & Parnell, LLP obtained a defense verdict in a Minnesota living mesothelioma, asbestos-related personal injury case for Flowserve Corporation and Scapa Dryer Fabrics, Inc., the two remaining defendants at trial. Stephen J. Foley of Foley & Mansfield, PLLP in Oakland, California was lead trial counsel for Flowserve Corporation, assisted by Erich Gleber of Segal, McCambridge, Singer & Mahoney in New York City and Christopher L. Goodman of Foley & Mansfield in Minneapolis. Lane Young and Elizabeth O’Neill of Hawkins & Parnell, LLP in Atlanta, Georgia were lead trial counsel for Scapa Dryer Fabrics and were assisted by Jamie L. Habeck of Foley & Mansfield, PLLP.
[FULL STORY]
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Keep those defense wins coming! Send a short summary and recent photo of yourself to Barb Lowery by email (blowery@dri.org).
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Legislative Tracking
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Fueled by DRI’s Young Lawyers Committee, this week’s report highlights legislation from Hawaii through West Virginia, plus Delaware. 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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DELAWARE (Contributor: Matthew Donelson, Elzufon Austin Reardon Tarlov & Mondell, P.A.)
AN ACT TO AMEND TITLE 31 OF THE DELAWARE CODE RELATING TO THE INTERSTATE COMPACT FOR THE PLACEMENT OF CHILDREN
Senate Bill #52
• This bill makes technical corrections to the new Interstate Compact for the Placement of Children, which was legislated under SS 1 for SB 71 during the 144th General Assembly. The bill also clarifies a provision under which the compact does not apply and allows for the option of receiving testimony for hearings by telephone or audio-video conference, subject to the approval of the presiding judicial officer.
The new compact was developed as a collaborative effort among states to provide increased protections and services for children in the foster care system that may be placed in another state. It will become effective when ratified by thirty five states, and upon final approval of the Interstate Commission. Until such time, the existing Compact will remain in effect.
• 3/25/09 – Senate Children Youth & Families Committee
AN ACT TO AMEND TITLE 10 OF THE DELAWARE CODE RELATING TO COURTS AND JUDICIAL PROCEDURE
Senate Bill #43
• Section 1. This section eliminates the need for duplicative mailings of process where the residence or last known address of the director, trustee, member or officer is the same as the address of the corporation’s principal place of business.
Section 2. This section provides for an effective date of August 1, 2009.
• 4/1/09 – Out of Committee
AN ACT TO AMEND TITLE 13 OF THE DELAWARE CODE RELATING TO TERMINATION AND TRANSFER OF PARENTAL RIGHTS IN ADOPTION PROCEEDINGS.
Senate Bill #55
• This bill allows guardians and permanent guardians of children to petition for termination of parental rights and adoption
• 3/26/09 – assigned to the Senate judiciary committee
AN ACT TO AMEND TITLE 11 OF THE DELAWARE CODE RELATING TO FAILURE TO APPEAR AT TRIAL.
House Bill #108
• This Act increases the penalties for failure to appear at trial. Under present law it is often to a defendant’s advantage not to appear for trial, as the State’s witnesses often become less cooperative the more often they are required to appear. The longer the defendant is a fugitive, the less likely the State will be able to go forward with its case. The penalties for failure to appear at trial ought to be sufficient to encourage the defendant to appear as required.
This Act also makes necessary and complimentary changes to the criminal contempt provisions of the Criminal Code so that the courts retain their power to impose contempt penalties for failure to appear at proceedings other than trial.
• 4/2/09 – assigned to House Judiciary Committee
[MORE]
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Quote of the Week
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A true conservationist is a man who knows that the world is not given by his fathers, but borrowed from his children.
— John James Audubon
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DRI Cares
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Andrews Kurth Sponsors Debate Tournament and Presents $7,500 in Scholarships to Winners
The Houston Urban Debate League (HUDL), the country’s newest affiliate of the National Association for Urban Debate Leagues, had its inaugural Andrews Kurth City Championship Debate Tournament on Friday, March 27, at the University of Houston and on Saturday, March 28, at the federal courthouse in downtown Houston.
[FULL STORY]
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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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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
Young Lawyers
June 4-5, 2009
Caesars Palace, Las Vegas, Nevada
Diversity for Success
June 11-12, 2009
Swissôtel, Chicago, Illinois
Insurance Bad Faith and Extra-Contractual Claims
June 18-19, 2009
Seaport Hotel, Boston, Massachusetts
DRI's National Workers' Compensation Review
August 17-18, 2009
Orlando World Center Marriott, Orlando, Florida
For all other seminars, webconferences and webcasts, click here.
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Unfair Insurance Practices: A Compendium of State Law
Defending Damages Claims in Business Tort Cases
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