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This Week's Feature
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Apex Depositions — Strategy and Practice
By Paula D. Osborn
Halleland, Lewis, Nilan & Johnson, Minneapolis, Minnesota
The request for an“apex” deposition of a corporate senior executive carries with it significant potential for harassment and abuse. Particularly in products liability cases, such request is less likely to be a search for discoverable information than a stunt designed to generate unfavorable publicity or create leverage for settlement. And while the standards governing motions to avoid or limit such depositions typically work to the advantage of products liability defendants, getting the time and attention of senior executives to prepare for a deposition when it cannot be avoided altogether is likely to pose even greater challenges for defense counsel.
[FULL STORY]
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Legal News
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Supreme Court Decision: CSX Transportation, Inc. v. Hensley, No. 08-1034
Under the Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 51-60, railroad employees may recover for workplace injuries caused by the railroad’s negligence. In Norfolk & Western Railway Co. v. Ayers, 538 U.S. 135 (2003), the Supreme Court held that a FELA plaintiff suffering from asbestosis may recover for “fear of cancer” as an element of his damages for pain and suffering, subject to the “important” limitation that the plaintiff must prove the fear to be “genuine and serious.” Id. at 157. To prevent improper recoveries from “bankrupt[ing] defendants,” Ayers identified a number of “verdict control devices,” including, “on a defendant’s request, a charge that each plaintiff must prove any alleged fear to be genuine and serious.” Id. at 159 n.19.
[FULL STORY]
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Supreme Court Granted Certiorari: Patent Law—Patentable Subject Matter
Under Section 101 of the Patent Act, 35 U.S.C. § 101, an “idea” is not patentable, but a “process” may be. On June 1, 2009, the Supreme Court granted certiorari in Bilski v. Doll, No. 08-964, to decide when a “process” is patent-eligible.
[FULL STORY]
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Tobacco Regulation Advances in Senate
Legislation authorizing the Food and Drug Administration to regulate the advertising and marketing of tobacco products advanced in the United States Senate on Tuesday, June 2. By a vote of 84 to 11, the Senate voted to limit debate on a motion to proceed to the bill, H.R. 1256, which passed the House of Representatives on April 2. The Senate Health, Education, Labor and Pensions Committee has approved its version of the legislation, sponsored by Senator Kennedy of Massachusetts, Chairman of the committee. The House bill would give the FDA wide new powers to regulate tobacco products, allowing it the power to control the amount of nicotine in tobacco products, and bar such claims as “light” and “low-tar.” The bill also would require new, larger warnings on cigarette packs alerting consumers of health hazards.Another vote to limit debate on the bill itself could still be necessary. Senator Burr of North Carolina, one of the bill’s opponents, said that he would seek to amend the bill on the Senate floor.
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DRI News
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Southern Regional Meeting
DRI’s Southern Regional Meeting was held at the Perdido Beach Resort in Orange Beach, Alabama on May 28, 2009. Kentucky, Tennessee and Mississippi DRI members were in attendance. Hosted by the Mississippi Defense Lawyers Association, DRI First Vice President R. Matthew Cairns and Southern Regional Director Gerry S. Toner welcomed the SLDO leaders.
[FULL STORY]
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DRI’s Climate Change Litigation Task Force is presenting its webcast “Climate Change in the Obama Administration: The Status of Proposed Global Warming Policies and Legislation” on Thursday, June 18, 2009 from 12:00 p.m. - 1:30 p.m. Central. With the new administration, we have a new approach to climate change. From the extent of new caps on greenhouse gas emissions, to the cap and trade market for carbon, to international protocols, such as Kyoto, to new EPA regulations at home, this course will outline the status of proposed legislation and the new polices that the Obama administration intends to implement.
[FULL STORY]
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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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And The Defense Wins!
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Bullivant Houser Bailey PC, acting as counsel for the Yellowstone Club, successfully represented the debtor in a $375 million fraudulent transfer action alleging predatory lending by Credit Suisse, paving the way for the Club’s successful reorganization. The case against Credit Suisse may also mark the end of the bank’s syndicated term loan product, which it aggressively marketed to a number of luxury developments that have, like the Club, been forced into bankruptcy. DRI members David Ernst in Portland and Troy Greenfield in Seattle were an important part of the winning Bullivant Houser Bailey team.
[FULL STORY]
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DRI members Jeffrey M. Grantham and Edward M. “Ted” Holt of Maynard, Cooper & Gale, P.C.’s Birmingham, Alabama office, along with local counsel, won summary judgment on behalf of one of the country’s largest annuity issuers in a nationwide putative class action pending in the U.S. District Court for the Western District of Tennessee.
[FULL STORY]
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DRI members Bill Lancaster and Bart McNiel of Alford, Clausen & McDonald, LLC in Mobile, Alabama, recently obtained a defense verdict in a wrongful death case after a three-day trial in Mobile County Circuit Court. The defendant ambulance company was called to a patient’s home after she had fallen and was transporting the patient to the hospital when the ambulance was involved in a collision with another vehicle on the interstate. The patient was ultimately admitted to the hospital and died three days later, allegedly due to injuries received in the accident.
[FULL STORY]
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DRI member Dan Dunn of Holme Roberts & Owen's Denver office recently won a complete victory for Homestake Mining Company in a radiation toxic tort case involving a uranium mill in New Mexico, Wilcox et al. v. Homestake Mining Co. et al., No. 0-4-cv-00534 (D.N.M. 2008). Homestake obtained a case management order requiring the 28 plaintiffs in the case to make a prima facie showing of specific causation through qualified expert opinion. Only three of the plaintiffs attempted the showing. The court dismissed the claims of the other 25 plaintiffs with prejudice on Homestake's unopposed motion.
[FULL STORY]
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DRI member Gregory P. Forney of Shaffer Lombardo Shurin, PC in Kansas City, Missouri successfully represented a cardiothoracic surgeon in a medical malpractice action. On January 18, 2006, the plaintiff, a 60-year-old male with history of coronary artery disease and hyperlipidemia with previous stent placement in 2004, underwent a heart catheterization that revealed four arterial blockages. The patient was referred to the defendant cardiothoracic surgeon for consultation for coronary artery bypass surgery. The patient went to the defendant on January 23, 2006 for a preoperative history, examination and testing. The defendant concluded that coronary artery bypass grafting was warranted; surgery was performed on January 31, 2006. The patient was discharged from the hospital on February 4, 2006.
[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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Leader Spotlight
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This week’s spotlight is on Daniel B. Meyer, a partner in the Chicago office of O’Hagan Spencer, and the newsletter editor for DRI’s Professional Liability Committee. Mr. Meyer concentrates his practice on the defense of lawyers, insurance producers and other non-medical professionals in malpractice litigation. He also represents the construction industry, design professionals in particular, in design and construction failure litigation.
[FULL STORY]
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Legislative Tracking
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Fueled by DRI’s Young Lawyers Committee, this week’s report highlights legislation from New York and Tennessee. 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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NEW YORK (Contributor: Carrie Pottker-Fishel, Harris Beach PLLC)
BUSINESS LAW
• NY S5478– Prohibits the manufacture, distribution, sale and use of nail polish and nail hardener containing certain dibutyl phthalates (DBP), toluene, or formaldehyde
• 5/11/09 – Referred to Consumer Protection
TENNESSEE (Contributor: Samuel P. Helmbrecht, Watkins & McNeilly, PLLC)
CONSTRUCTION LAW
HB1252/SB1417: Contractors (Amending TCA Tit. 47 Ch. 18, 25, Tit. 62, Ch. 6; Tit. 66 Ch. 34.
• As introduced, establishes as an unfair act under the Consumer Protection Act the practice of a general contractor requiring a subcontractor as a condition of being awarded a job to waive the subcontractor's lien rights.
• 2/18/09 - referred to Senate Commerce, Labor and Agriculture Committee.
• 5/4/09 - SB1417 passed in Senate.
• 5/7/09 - SB1417 received by House and substitutes HB1252.
• 5/21/09 - SB1417 passed in House.
EMPLOYMENT LAW
HB93/SB277: Hospitals and Health Care Facilities (Amending TCA 68-11-256)
• Requires criminal background checks to be conducted for direct care employees prior to employment instead of prior to employment or within seven days of employment.
• 3/3/09 - HB93 deferred in House Health & Human Resources Committee.
• 5/14/09 - HB93 passed in House as amended.
• 5/18/09 - HB93 received in Senate and substitutes SB277.
[MORE]
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Quote of the Week
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Indifference is the essence of inhumanity.
—George Bernard Shaw
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DRI CLE Calendar
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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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Evidentiary Privileges for Corporate Counsel
Defending Damages Claims in Business Tort Cases
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