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Legal News
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Supreme Court Decision: Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, Nos. 07-984 and 07-990 Section 402 of the Clean Water Act (CWA) grants the Environmental Protection Agency (EPA) the authority to “issue a permit for the discharge of any pollutant” “[e]xcept as provided in [Section 404].” 33 U.S.C. § 1342(a). Section 404 of the CWA grants the U.S. Army Corps of Engineers (the Corps) the authority to “issue permits . . . for the discharge of dredged or fill material.” Id. § 1344(a). In a 6-3 decision issued June 22, 2009, the Supreme Court held that the authority to issue a permit for the discharge of fill material rests exclusively with the Corps, and that performance standards promulgated by the EPA under Section 306 of the CWA do not apply to such discharges.
[FULL STORY]
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Supreme Court Decision: Gross v. FBL Financial Services, Inc., No. 08-441
The Age Discrimination in Employment Act of 1967 (ADEA) makes it unlawful for an employer to take adverse action against an employee “because of such individual’s age.” 29 U.S.C. § 623(a). In a 5-4 decision issued June 18, 2009, the Supreme Court held that the ADEA does not authorize so-called mixed-motives claims and that an ADEA plaintiff therefore bears the burden of proving, by a preponderance of the evidence, that age was the “but for” cause of the challenged adverse employment action.
[FULL STORY]
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Supreme Court Decision: Travelers Indemnity Co. v. Bailey, Nos. 08-295 & 08-307
The Supreme Court had consolidated and granted certiorari in Traveler’s Indemnity Co. v. Bailey (No. 08-295) and Common Law Settlement Counsel v. Bailey (No. 08-307) to determine the scope of a bankruptcy court’s authority to enjoin lawsuits seeking recovery against a debtor’s insurance companies. The issue arose when suits were filed against a bankrupt manufacturer’s insurance company, and the insurance company claimed that the suits were barred by the terms of orders that had been entered in the manufacturer’s bankruptcy proceeding. But, finding that the jurisdictional question was not properly before it (because the orders at issue had become final on direct review over two decades ago), the Court on June 18, 2009 released an opinion, authored by Justice Souter and joined by six other Justices, in which it expressly declined to “resolve whether a bankruptcy court . . . could properly enjoin claims against nondebtor insurers that are not derivative of the debtor’s wrongdoing.” Slip op. 17.
[FULL STORY]
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Illinois Appellate Court Washes Away Household Exposure Claims
By Craig T. Liljestrand and Paul M. Markese
Hinshaw & Culbertson LLP, Chicago, Illinois
The Illinois Appellate Court for the Second District in Nelson v. Aurora Equipment Co., Docket No. 2-08-0186 (May 22, 2009) recently affirmed a trial court ruling that held no duty was owed by a premises defendant to a decedent allegedly exposed to asbestos through her husband's and son's clothing (i.e., a household exposure claim). Although not applicable to all defendants, premises defendants can now attempt to wash their hands of these household exposure claims.
[FULL STORY]
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Florida Supreme Court Adopts New Procedural Rule for Management of Complex Litigation
By Joshua C. Webb
Hill Ward Henderson, Tampa, Florida
On May 28, 2009, the Supreme Court of Florida changed the procedural landscape for litigating complex cases in state trial courts by adopting new Florida Rule of Civil Procedure 1.201. The provisions of the new Rule 1.201 are effective immediately, and should greatly alter trial courts’ and practitioners’ management of large, complex cases. A copy of the Florida Supreme Court’s decision in In re Amendments to the Florida Rules of Civil Procedure-Management of Cases Involving Complex Litigation, No. SC08-1141 (Fla. May 28, 2009) is available from Westlaw at 2009 WL 1473978.
[FULL STORY]
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DRI News
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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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UPCOMING WEBCONFERENCE
Defending the Wrongful Death Wound Infection Claim: “The Resident Died with a Wound, Not Because of a Wound”
Tuesday, June 30, 2009
2:00 p.m. – 3:30 p.m. Central
This webconference will educate defense attorneys, in-house counsel, claims professionals and in-house staff on evaluating and defending the wrongful death wound infection claim. Dr. Compton, a nationally known wound expert, will lead the medical causation discussion, while Mr. Fernandez, a skilled health care law attorney, will discuss how to build a causation defense from records, fact witnesses and a plaintiff’s own experts. Dr. Compton will discuss the clinical aspects of skin and wound infections. He will explore wound assessment, wound culture techniques and debunk the myths surrounding wound “odor” as alleged evidence of infection. Register online or visit www.DRI.org for more information.
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Deadline for DRI Elections: 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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Just Added to the DRI Bookstore – Current Issues in Medical Liability and Health Care Law
Medical liability litigation attorneys and health care law attorneys face many varied and distinct issues. Often the separate roles of the health care law attorney and the medical liability litigation attorney become intertwined on overlapping issues, such as e-discovery and informed consent. This publication explores some of these overlapping issues in a comprehensive discussion aimed at providing a good factual background and practical tips for lawyers in both fields. Topics addressed include: the Stark Law; informed consent; Good Samaritan laws; the impact of e-discovery on health care litigation; EMTALA; the impact of Medicare liens on litigation and settlement; the Patient Safety Act; determining the value of medical services as they relate to a plaintiff's damages claim. Click here to pre-order your copy today and for more information on this new release!
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And The Defense Wins!
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HealthSouth Corporation won a significant appellate victory on June 17, 2009. Scott Burnett Smith, vice-chair of DRI’s Appellate Advocacy Committee and a member of DRI's Amicus Committee, successfully argued the case for HealthSouth before the U.S. Court of Appeals for the Eleventh Circuit. Scott is an appellate partner with Bradley Arant Boult Cummings LLP in Huntsville, Alabama, and DRI member Andrew Brasher helped brief the case. This appeal arose from HealthSouth's historic $455 million settlement with its current and former shareholders under the securities laws. A critical provision of the settlement was a “bar order" that barred former CEO Richard Scrushy from bringing contribution or indemnity claims against the settling defendants. The district court had approved the bar order as part of the settlement. The Eleventh Circuit affirmed, rejecting all of Scrushy’s challenges on appeal.
[FULL STORY]
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On April 24, 2009, DRI member Daniel G. Federico of Garson, DeCorato and Cohen LLP in New York City won a defense verdict for an obstetrician/gynecologist in a claim involving a brain-damaged infant in the Supreme Court, Bronx County, one of the country’s most challenging venues. (Bronx County Index # 16765/06)
[FULL STORY]
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Clay Guise of Dykema Gossett PLLC, a member of Dykema Gossett PLLC’s automotive industry team in Bloomfield Hills, Michigan and lead defense counsel, teamed with product liability attorney Steven Smelser of Yukevich Calfo & Cavanaugh in Los Angeles to achieve a defense verdict for Ford Motor Company in a product liability action brought by Clarendon National Insurance Company, a U.S.-based property and casualty insurance company. Clarendon alleged that a fire at the home of one of its insureds was caused by a defect in a Ford vehicle.
[FULL STORY]
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Peter Wanek and Thomas P. Anzelmo of McCranie, Sistrunk, Anzelmo, Hardy, Maxwell & McDaniel P.C. in Metairie, Louisiana recently tried a case in March 2009, in the Civil District Court in New Orleans. The case involved a rear-end auto accident and liability had been stipulated. Representing the uninsured/underinsured motorist carrier (USAA), the defendant argued that the accident was a minor one and could not have caused the serious low back injuries alleged by the plaintiff, and also that the plaintiff’s back complaints, which gradually became worse in the years following the accident, were related to his degenerative disc condition and not the accident. The plaintiff eventually had a two level fusion of the lower two vertebrae in his back. He claimed related medical expenses in excess of $200,000. Two days prior to trial, the excess UIM carrier settled for $200,000.
[FULL STORY]
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On April 10, 2009, after nearly two weeks of trial and three hours of deliberation, a jury in Amarillo, Texas returned a verdict in favor of Honda and seatbelt manufacturer, Takata, in a case where the plaintiff claimed her seatbelt had come unlatched during a violent rollover crash involving a 2000 Honda Civic. The seatbelts in the vehicle were manufactured by Takata. The Honda defendants were represented by Jeffrey S. Hawkins and Grant T. McFarland of Prichard, Hawkins, McFarland & Young, LLP in San Antonio, Texas. The Takata defendants were represented by David Kelly of Bowman and Brooke LLP in Minneapolis, Minnesota. Thomas C. Riney of Riney & Mayfield LLP in Amarillo, Texas was counsel for the Honda and Takata defendants.
[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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This week’s report highlights legislation from Hawaii. 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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HAWAII (Contributors: Dawn T. Sugihara & Anne T. Horiuchi, Goodsill Anderson Quinn & Stifel LLP)
AEROSPACE MEASURES
S.B. 537 relating to Aerospace
• Establishes an aerospace advisory committee to assist the legislature and state agencies in development of the aerospace industry. (HD2)
• 05/06/09: Signed into law by the Governor as Act 52.
COMMERCIAL LITIGATION
S.B. 301 relating to The Hawaii Registered Agents Act
• Adopts provisions of the Model Registered Agents Act, which streamlines business registration filings for registered agents who accept service of process on behalf of businesses in Hawaii, particularly commercial agents who are in the business of serving as agents. (HD1)
• 05/07/09: Signed into law by the Governor as Act 55.
S.B. 1005, relating to Publicity Rights
• Establishes property rights in the commercial use of a person’s name voice, signature, photograph, or likeness. (CD1)
• 05/05/09: Passed Final Reading in the House and in the Senate.
[MORE]
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Quote of the Week
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We play the hand of cards life gives us. And the worst hands can make the best players.
—Doc Searls
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DRI CLE Calendar
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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
Appellate Advocacy
November 5-6, 2009
Hilton La Jolla Torrey Pines, La Jolla, California
Asbestos Medicine
November 12-13, 2009
Fontainebleau Miami Beach, Miami, Florida
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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