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This Week's Feature
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“I Saved My Friend from a Burning Wreck and All I Got Was Sued”
By Thomas J. Hurney, Jr.
Jackson Kelly PLLC, Charleston, West Virginia
I teach law classes at our medical school to students, residents and faculty (indeed, my mother is proud I am an Associate Clinical Professor of Medicine; finally, a doctor in the family, or sort of). Anyway, I was asked to do a class on Good Samaritan laws. The first question I received was about a woman who saved a friend from a burning wreck and got sued. These doctors and doctors to be wanted to know if they could get sued for stopping and helping at an accident site. Luckily, I had read Van Horn v. Watson, 86 Cal.Rptr.3d 350, 197 P.3d 164 (Cal. 2008), where the court had indeed denied summary judgment to a woman who pulled her friend from a car, allowing the suit to continue. I share with my medical liability pals what I learned.
[FULL STORY]
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Legal News
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Supreme Court Decision: Burlington Northern & Santa Fe Railway Co. v. United States, No. 07-1601 (consolidated with Shell Oil Co. v. United States, No. 07-1607)
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675, allows state and federal authorities to clean up contaminated areas and later seek to recover the clean-up costs from those whom the statute makes potentially liable for the contamination. Id. § 9607(a). In addition to the owners and operators of a contaminated property, any person who “arranged” for disposal or treatment of the hazardous substances is potentially liable. Id. § 9607(a)(3). Courts have long held, moreover, that CERCLA imposes joint and several liability on all potentially liable parties, while recognizing that apportionment of liability is appropriate in at least some cases.
[FULL STORY]
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Supreme Court Decision: Arthur Andersen LLP v. Carlisle, No. 08-146
Section 3 of the Federal Arbitration Act (FAA or Act) provides for a stay of litigation in any action that is “referable to arbitration under an agreement in writing.” 9 U.S.C. § 3. The Act further provides that “an appeal may be taken from . . . an order . . . refusing a stay of any action” under that provision. 9 U.S.C.§ 16(a)(1)(A). On May 4, 2009, in Arthur Andersen LLP v. Carlisle, No. 08-146, the Supreme Court held (1) that a court of appeals has jurisdiction under Section 16(a) to review a denial of a stay requested by a litigant not a party to the arbitration agreement and (2) that such a litigant is entitled to a stay under Section 3 if the relevant state contract law allows the litigant to enforce the agreement.
[FULL STORY]
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DRI News
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2009 Annual Meeting – Celebrating 50 Years of Leadership, Excellence and Education
October 7-11
Sheraton Chicago Hotel & Towers
Chicago, Illinois
Arriving soon to a mailbox near you, the 2009 Annual Meeting brochure which includes detailed program information and opportunities to network with friends and colleagues! Register today!
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Keep Sending Transcripts
DRI’s Expert Witness Database has been an extremely valuable member benefit. Please continue to send your depositions. In the past, some firms have sent hundreds of depositions at a time. DRI scans the documents for the database and converts the information onto a CD which is mailed to the law firm. So there are two distinct advantages. You save time by accessing the database electronically, having thousands of documents at your disposal. Plus, your law office saves precious storage space by getting rid of volumes of paperwork and receiving a CD in return. Electronic copies can be sent via email to ewd@dri.org. Paper transcripts can be mailed to DRI, c/o John Hovis, 55 West Monroe Street, Suite 2000, Chicago, Illinois 60603.
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Sign Up Your Summer Associates!
For just $20, your law clerks will receive the following benefits:
• Great Networking Opportunities – Automatic enrollment in the Young Lawyers Committee which offers abundant opportunities to get involved
• DRI Publications – For The Defense, the only national monthly magazine for defense lawyers, and The Voice, a weekly eNewsletter
• DRI’s Website – Searchable membership database
• FREE Registration to attend all DRI seminars, including the Annual Meeting
• Law Student Resume Database – Get your resume in front of 22,500 defense attorneys!
Please click here to download the Law Student Membership Application. Return the completed application to Cheryl Palombizio at cpalombizio@dri.org or fax it to 312-252-1156. A DRI new member welcome packet will be mailed within a few weeks.
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Excellence in Defense Award
Congratulations to James E. Lozier of Dickinson Wright PLLC in Lansing, Michigan, the recipient of the Michigan Defense Trial Counsel’s Seventeenth Annual Excellence in Defense Award. He will be honored Saturday, June 13, 2009, at the annual awards banquet as a highlight of the MDTC’s Annual Meeting and Conference at Boyne Highlands in Harbor Springs, Michigan. The award was established to honor the most prominent of civil defense counsel who have throughout their careers demonstrated superior professionalism and advocacy skills, and have contributed significantly to his or her communities and the defense trial bar. MDTC President Robert H S. Schaffer reflected upon the Board’s selection of Jim Lozier by saying, “The fact that Jim Lozier has been an outstanding volunteer for our organization is well known to our leadership and largely recognized to the members. The fact that Jim Lozier is an outstanding lawyer deserves independent recognition. Jim Lozier truly deserves the distinction of excellence in his craft.” A DRI member since 1982, Jim Lozier has served as Central Regional Director, Michigan State Representative and ADR Committee chair.
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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 David Waxman, a partner and litigation department chair in the Chicago law firm of Arnstein & Lehr LLP teamed with an associate recently to obtain a not guilty verdict on behalf of their pediatrician client following a two-week medical malpractice trial. The plaintiff sought in excess of $7 million in damages. The jury was out just 40 minutes before returning its verdict. Judge Kendall Wenzelman of the Kankakee County Circuit Court presided.
[FULL STORY]
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DRI member Michael P. Rudd of Rudd and Diamond P.A., in Miami, Ft. Lauderdale and West Palm Beach successfully represented the Hess Corporation, owner of the Hess gas station. On May 11, 2006, near the intersection of Johnson Street and 58th Avenue in Hollywood, Florida, the plaintiff, Paul Robert, was a complete stop when he was rear-ended by a pickup truck driven by City of Hollywood employee, Richard Wood. The plaintiff originally filed suit against the City of Hollywood. At Mr. Wood’s deposition, he claimed that, in the moments leading up to the accident, he was startled and distracted by yard debris being blown into and onto his truck by a landscaper working at the Hess gas station, in close proximity to the accident location. In addition, he later claimed that he was hit by a piece of the debris.
[FULL STORY]
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DRI member Gerard T. Noce of HeplerBroom in St. Louis teamed with a colleague recently to successfully defend Rodney Sharp and the Sandberg Phoenix and von Gontard P.C. law firm in St. Louis in a legal malpractice case. Plaintiff Hamid Hosseini, M.D., a board-certified OB-GYN, claimed that Rodney Sharp was negligent in his defense of Dr. Hosseini in the underlying medical malpractice/wrongful death case.
[FULL STORY]
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DRI member Peggy Fonshell Ward of Moore & Jackson in Baltimore, recently successfully defended a staff member of a residential treatment facility who had been accused of child abuse for pushing a teen resident of the facility. The young man had fallen and fractured his hip on the unit. Although he initially said that he slipped on a wet floor and repeated that assertion several times, the next day at the hospital he reported to a nurse that the staff member had deliberately pushed him. Based on the allegations of intentional acts, the staff member and the facility were separately represented.
[FULL STORY]
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DRI member Hugh W. Buyck of Buyck & Sanders, LLC in Mount Pleasant, South Carolina, along with an associate from the firm, recently obtained a defense verdict in the trial of a medical malpractice case involving a roux-en-y gastric by-pass procedure in the Florence County, South Carolina Court of Common Pleas. This was a re-trial following a trial last year resulting in a hung jury. The decedent’s wife brought wrongful death and survival claims concerning the alleged improper performance of surgical procedures and failure to timely diagnose a post-operative anastomotic leak.
[FULL STORY]
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The plaintiffs, Dudley James Stringer and Gildete M. Stringer, sued Rueby Custom Homes, who built and sold a home to them in Kingwood, Texas. The plaintiffs claimed that they should recover damages for breach of warranty, breach of contract and negligence. They sought damages for foundation repair, repair to their house and diminution in value. They contended that they should receive approximately $350,000 in damages. Rueby was successfully represented at trial by DRI members David V. Wilson, II (lead) and Michael M. Gallagher of Hays, McConn, Rice & Pickering in Houston, Texas. Rueby named R-Mac Engineering Company, Inc., the engineer, and Lakeside Plumbing Co., who provided plumbing services, as third-party defendants.
[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 Oklahoma, Tennessee and Virginia. 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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OKLAHOMA (Contributor: Millicent L. Hughes, Feldman, Franden, Woodard & Farris)
ARBITRATION
HB1035 – Arbitrator findings of fact and conclusions of law
• Abolishes requirement that arbitrator submit findings of fact and conclusions of law with ruling
• 2/25/09 – Passed by House
• 4/23/09 – Passed by Senate
• 4/29/09 - Senate amendments rejected, conference requested
ATTORNEY FEES
HB 1602 – Limit on contingency fees
• Legislative referendum that would limit amount of attorney fees in contingency fee cases to be limited to 33% of the first $1 million recovered, and 20% of any amount recovered over $1 million
• If passed, will be put on November ballot
• 2/18/09 – Passed by House
• 4/22/09 – Failed in Senate
HB 1959 – Limit on contingency fees
• Legislative referendum substantially the same as HB 1602 regarding cap on contingency fee recovery
• 3/17/09 – Second reading referred to Senate Rules Committee
CIVIL PROCEDURE
SB 1073 – Judgments; Filing fees
• Amended current statute to require judge, upon motion of judgment creditor, to issue order authorizing Oklahoma Employment Security Commission to release judgment debtor’s employment information
• Adding filing fees for filing counterclaims
• 3/19/09 – Passed by Senate
• 4/14/09 – Passed by House
• 4/30/09 – House amendments rejected, conference requested and granted, conferees named
HB 1603 – “TORT REFORM”
• The Proposed Committee Substitute for HB 1603 is comprehensive lawsuit reform legislation. The bill amends statutory language in several areas including: Non-economic damages, Product liability, Asbestos litigation, Common Sense Consumption Act, Joint and Several Liability, Class Action Lawsuits
• Bill would modify summary judgment standards, admissibility of seat-belt evidence, collateral source rule, damages caps, prejudgment interest, statutes of repose, require the amount of damages to be pled consistent with those required to establish federal diversity jurisdiction, and enact the Innocent Successor Asbestos-Related Liability Fairness Act
• 3/4/09 – Passed by House
• 4/22/09 – Passed by Senate
• 4/27/09 – Engrossed to House
• 4/30/09 – Senate Amendments rejected, conference requested and granted, conferees named
[MORE]
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Quote of the Week
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Talent without discipline is like an octopus on roller skates. There's plenty of movement, but you never know if it's going to be forward, backwards, or sideways.
— H. Jackson Brown, Jr.
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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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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
Nursing Home/ALF Litigation
September 10-11, 2009
The Westin Kierland, Scottsdale, Arizona
Strictly Automotive
September 24-25, 2009
Hilton La Jolla Torrey Pines, La Jolla, California
For all other seminars, webconferences and webcasts, click here.
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Unfair Insurance Practices: A Compendium of State Law
Trucking Policyholder's Duty to Preserve Coverage
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