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This Week's Feature
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CORPORATE REPRESENTATIVES: FAIR GAME AT TRIAL?
By Robert Redfearn, Jr.
Simon, Peragine, Smith & Redfearn, LLP
New Orleans, Louisiana
A potent and well known trial tactic is for one party to call the other party or the other party’s representative as an adverse witness during the presentation of its case. This tactic primarily benefits the plaintiff since the plaintiff or the plaintiff’s representative will in all probability have testified by the time the defendant puts on its case. When the defendant is a corporation or other legal entity, the corporate representative attending trial is a particularly attractive target for the plaintiff to call as an adverse witness. Although the corporate representative should be prepared for this possibility, a deeper consideration is whether steps can be taken by the defendant to prevent or blunt the use of this tactic against its corporate representative. Stated conversely, it can be asked whether there are any limits on the plaintiff’s right to call the person attending trial as the designated corporate representative as an adverse witness as part of the plaintiff’s case, particularly if that person is designated for “appearance” purposes only.
[FULL STORY]
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Legal News
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On May 18, 2009, the California Supreme Court decided In re Tobacco II Cases, No. S147345, and limited the effect of Proposition 64 on UCL actions addressing allegedly “fraudulent” conduct such as false advertising. The court held that the standing requirements imposed by Proposition 64 apply only to the class representatives: that is, the named plaintiffs need not show that the absent class members also had standing. To establish standing to assert a misrepresentation claim under the UCL, a class representative must demonstrate actual reliance on the challenged statements. But the named plaintiff need not plead or prove with “an unrealistic degree of specificity that the plaintiff relied on particular advertisements or statements when the unfair practice is a fraudulent advertising campaign.”
(Source: Mayer Brown News, visit www.mayerbrown.com)
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DRI News
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 For a limited time only, DRI is offering 30% off select publications in the DRI Bookstore. Order now and take advantage of this special offer! Supplies are limited.
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Upcoming DRI Elections — File by July 1, 2009
Four new Director Elected Nationally seats on the DRI Board of Directors, plus the office of Second Vice President, will be filled at the 2009 Annual Meeting in Chicago, October 7-11. To be considered for either position, a DRI member must first file a Declaration of Candidacy form. For more information, please contact Nancy Parz at DRI headquarters: nparz@dri.org or 312.698.6224. Declarations are due by July 1, 2009.
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DRI’s Insurance Law Committee is presenting their webcast, “Practical and Tactical Tools for Defending Extra-Contractual Claims,” on Tuesday, June 2, 2009 from 1:30 p.m. - 3:00 p.m. Central. This webcast will explore a number of substantive and procedural issues that insurance companies and their attorneys routinely face in evaluating and defending bad faith claims. The program also serves as a primer for some of the topics that will be addressed in detail at the Insurance Law Committee's Insurance Bad Faith and Extra-Contractual Claims Symposium on June 18-19 in Boston. To learn more about the seminar, click here.
[FULL STORY]
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2009 DRI Annual Meeting
October 7-11
Sheraton Chicago Hotel & Towers
Chicago, Illinois
It’s not too soon to make plans to attend the 2009 Annual Meeting! Learn about emerging trends and discuss hot topics with colleagues. Hear from nationally recognized blockbuster speakers: Doris Kearns Goodwin, world-renowned historian, author and NBC commentator; Elaine L. Chao, former secretary of labor under George W. Bush; Joseph H. Hartzler, government’s lead counsel in the Oklahoma City bombing case and former solicitors general including Paul D. Clement, Drew S. Days III, Charles Fried, Theodore B. Olson and Kenneth W. Starr. Help celebrate DRI’s 50th anniversary, Lincoln’s 200th birthday and lawyers’ important role in the civil justice system. Click here to register now or for more information.
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National Foundation for Judicial Excellence
Established in 2004, the National Foundation for Judicial Excellence (NFJE) is a 501(c)(3) charitable organization dedicated to supporting an independent, well-informed judiciary in order to preserve excellence and fairness in the civil justice system.
[FULL STORY]
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And The Defense Wins!
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DRI members Rich Dukes and Chris Dorsel of Turner Padget Graham & Laney in Charleston, South Carolina, recently obtained a defense verdict for their client, a landlord and owner of a federally subsidized rental property in Charleston. The case involved wrongful death and survival actions brought by and on behalf of the estates of a mother and her 15-year-old daughter, who were residents of an apartment who died in a fire that consumed their apartment. Both victims died of smoke inhalation before the first responders arrived on the scene.
[FULL STORY]
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DRI members Bruce Keplinger and John Hicks of Norris & Keplinger of Overland Park, Kansas successfully represented Dr. Lankachandra (hospitalist) in a medical malpractice case. The other defendants were Dr. Hughes (radiologist) and Dr. Tenny (neurosurgeon).
[FULL STORY]
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A federal court jury in New Orleans, Louisiana returned a defense verdict in favor of Monsanto Company on March 25, 2009 in the case of Robertson, et al. v. Monsanto Company. Monsanto was represented by DRI members Darryl J. Foster and Michael S. Sepcich of Bradley Murchison Kelly & Shea, LLC in New Orleans. The plaintiffs were represented by Lemmon Law Firm, LLC and the Law Offices of Richard Martin.
[FULL STORY]
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DRI members Randy Pattee and John Laravuso of Lindquist & Vennum, PLLP in Minneapolis were successful in getting summary judgment affirmed for a national furnace manufacturer against design defect and other product liability claims stemming from a residential propane gas explosion. In Lammle v. Gappa Oil Co., Inc., No. A08-0582, 2009 WL 67438 (Minn. Ct. App. Jan. 13, 2009), review denied (Minn. Mar. 31, 2009), the Minnesota Court of Appeals ruled, among other things, that, as a matter of law, the furnace manufacturer did not have a duty to incorporate or supply a gas detector with its furnace.
[FULL STORY]
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DRI wants to hear about your win! 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 Michigan, Minnesota and Oklahoma. 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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MICHIGAN (Contributor: David M. George, Dykema Gossett PLLC)
DRUG AND MEDICAL DEVICE
SB 0499 of 2009: Amends Public Health Code
• The bill prohibits health facilities, under certain circumstances, to reuse single-use medical devices and prescribes remedies for violation.
• 04/30/2009 – Referred to Committee on Health Policy
HB 4316: Liability Limits
• Act to rescind limitation on liability for drugs that have been approved by the FDA
• 04/30/2009 –Postponed until June 2, 2009
HB 4317: Statute of Limitations
• An Act regarding drug product liability cases previously prohibited because of FDA approval defense; to allow cases to be commenced within three years after repeal of the defense.
• 04/30/2009 –Postponed until June 2, 2009
HB 4318 of 2009: Amends Michigan Consumer Protection Act
• This amendment makes inaccurate representations concerning risks of certain drugs, medications, and supplements an unfair trade practice under the Michigan Consumer Protect Act.
• 04/30/2009 –Postponed until June 2, 2009
EMPLOYMENT
SB 0499 of 2009: Creates New Act
• A bill to provide standards for personnel policies to protect and accommodate the right of health care professionals who object to providing or participating in certain health care services under certain circumstances and to provide for protection from certain liability; and to prescribe penalties and provide remedies. More, specifically, the act allows a health care professional to request and receive reasonable accommodation to avoid providing or participating in a health care service to which the health care provider objects on ethical moral, or religious grounds.
• 04/30/2009 – Referred to Committee on Health Policy
[MORE]
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Quote of the Week
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Stop thinking in terms of limitations and start thinking in terms of possibilities.
— Terry Josephson
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DRI CLE Calendar
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Practical and Tactical Tools for Defending Extra-Contractual Claims (webcast)
June 2, 2009
Young Lawyers
June 4-5, 2009
Caesars Palace, Las Vegas, Nevada
Diversity for Success
June 11-12, 2009
Swissôtel, Chicago, Illinois
Climate Change in the Obama Administration: The Status of Proposed Global Warming Policies and Legislation (webcast)
June 18, 2009
Insurance Bad Faith and Extra-Contractual Claims
June 18-19, 2009
Seaport Hotel, Boston, Massachusetts
Defending the Wrongful Death Wound Infection Claim: "The Resident Died with a Wound, Not Because of a Wound" (webconference)
June 30, 2009
DRI's National Workers' Compensation Review
August 17-18, 2009
Orlando World Center Marriott, Orlando, Florida
Construction Law
September 10-11, 2009
The Palace Hotel, San Francisco, California
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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Defending Damages Claims in Business Tort Cases
Trucking Policyholder's Duty to Preserve Coverage
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