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This Week's Feature
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Do Consumers Have Private Remedies for Violations of the Reporting Requirements Under the Rules of the Consumer Product Safety Act?
By James W. Ozog and Staci A. Williamson*
Wiedner & McAuliffe, Ltd., Chicago, Illinois
In 2007, a wave of high-profile product recalls, including recalls of toys and children’s products, impacted the marketplace. In response, Congress passed the “Consumer Product Safety Improvement Act.” Pub. L. No. 110-314, 122 Stat. 3016. The CPSIA broadens the scope and authority of the Consumer Product Safety Commission and its ability to make rules governing the safety and distribution of consumer products within the United States. Whether the expanded rules give rise to increased private causes of action under Section 2072(a) of the CPSA is of concern to all manufacturers, distributors and sellers of consumer products within the United States.
[FULL STORY]
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Legal News
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Texas Supreme Court Now Requires Trial Court to Detail Its Reasons for Granting a New Trial
By Craig T. Liljestrand, Hinshaw & Culbertson LLP, Chicago, Illinois
The Texas Supreme Court recently held in In Re DuPont de Nemours and Co., Tex., No. 08-0625 (7/3/09), that whenever a trial court sets aside a jury verdict and grants a new trial, it must explain its reasons for doing so. Prior to this decision, a Texas trial court could simply set aside a jury verdict without any explanation beyond “in the interest of justice and fairness.” The In Re DuPont case was decided at the same time, on the same grounds and even references a medical malpractice case entitled, In Re Columbia Medical Center of Las Colinas, ___ S.W.3d ___ (Tex. 2009).
[FULL STORY]
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DRI News
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Fifth Annual Judicial Symposium Is A Success!
The National Foundation for Judicial Excellence (NFJE) held its Fifth Annual Judicial Symposium, Mapping the Legal Frontier: The Uncertain Boundary Between Federal and State Law, July 10-11 at The Drake Hotel in Chicago. With 118 judges in attendance and 35 states represented, the program proved to be a great success!
[FULL STORY]
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Upcoming Webcast
Chinese Drywall Litigation: Emerging Developments and Legal Theories
Monday, August 17, 2009
1:30 p.m. – 3:00 p.m. Central
This webcast is designed to educate litigators and others on the emerging litigation concerning Chinese drywall. In addition to discussing recent developments, this course will address the legal theories being employed by owners or claimants and the defenses available to defendants, such as suppliers, installers and builders. The webcast will also address issues that may arise with the involvement of foreign business entities, as well as applicable insurance coverage issues. Register online or visit www.DRI.org for more information.
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Federal Judicial Center Survey
The Federal Judicial Center is currently administering an ABA questionnaire about the cost, efficiency and effectiveness of the Federal Rules of Civil Procedure. Its purpose is to inform the Advisory Committee on Civil Rules about attorney-members’ experiences with the federal civil justice system. Randomly selected attorneys in cases terminating in the last quarter of 2008 have been chosen for this survey. If you have received a request from Judge Mark Kravitz, Chair of the Advisory Committee for Civil Rules, please complete the “Civil Rules Survey” promptly and return as indicated. Deadline is Friday, August 15. Your response is needed to assist the committee in formulating an accurate picture of what is happening in civil litigation in the federal courts.
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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
Please complete the Law Student Membership Application and return 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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DRI Awards — Deadline for Nominations: August 1
DRI’s Annual Professional Achievement and Service Awards celebrate and honor outstanding performance by SLDOs, DRI law firms and individual members. Brochures detailing the awards and nomination criteria have been emailed to all members, and you may also view the brochure online. We encourage you to recognize the accomplishments of your peers and submit entries for each of the awards. The call for nominations deadline is August 1, 2009. The awards will be presented at the Awards Luncheon, Thursday, October 8, with Assistant U.S. Attorney for the Central District of Illinois Joseph H. Hartzler, the government’s lead counsel in the Oklahoma City bombing case, as guest speaker. To register for the luncheon and other events at the Annual Meeting, click here.
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DRI National Workers' Compensation Review – Gaining Ground in a Changing Environment
Presented by DRI's Workers' Compensation Committee and the Florida Workers' Compensation Institute Inc.
August 17-18, 2009
Orlando World Center Marriott, Orlando, Florida
In its second year of participation in the Workers' Compensation Educational Conference (WCEC), DRI once again will present its own two-day stand-alone program within the larger conference. The Monday afternoon and Tuesday morning sessions will feature expert and defense counsel perspectives on recurring and emerging defense issues in an unsettled time for the economy and our industry. To view the DRI program, click here.
[FULL STORY]
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DRI 2009 Annual Meeting
October 7-11
Sheraton Chicago Hotel & Towers
Chicago, Illinois
The Supreme Court – Changes and Challenges
The U.S. solicitor general represents the United States before the Supreme Court and has a unique vantage point on the Court and its jurisprudence. We are privileged to have several former U.S. solicitors general including:
Paul D. Clement, Solicitor General under George W. Bush, 2004-2008
Drew S. Days III, Solicitor General under Bill Clinton, 1993-1996
Charles Fried, Solicitor General under Ronald Reagan, 1985-1989
Theodore B. Olson, Solicitor General under George W. Bush, 2001-2004
Kenneth W. Starr, Solicitor General under George H.W. Bush, 1989-1993
[FULL STORY]
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And The Defense Wins!
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DRI member Joel D. Groenewold of the Chicago office of Kopka Pinkus Dolin & Eads LLC successfully represented the defendant in a vehicular accident in Cook County, Illinois, involving serious injuries. This complicated case involved a head-on collision between the plaintiff’s car and the defendant’s truck. The plaintiff alleged that the defendant crossed the center line, and the defendant alleged that the plaintiff crossed the center line. The defendant further contended that the defendant veered his truck to the right shoulder as plaintiff’s car neared him, to avoid contact.
[FULL STORY]
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Robert W. Hodges, a partner at McNamara, Dodge, Ney, Beatty, Slattery, Pfalzer, Borges & Brothers LLP in Walnut Creek, California, received a defense verdict in a two-week medical malpractice case tried in San Francisco County Superior Court before Judge Tovar Mason. The case, Van Hoesen v. Anthony (case no: CGC-06-456359) involved the performance of a neck and cheek lift, bilateral upper and lower lid blepharoplasties with liposuction of the neck performed on a 48-year-old San Francisco Symphony violinist by a board certified San Francisco plastic surgeon. Following the procedure, the patient contended she developed scarring of the incisions for the lift and, more importantly, lagophthalmos bilaterally that caused her to develop "dry eye" syndrome which affected her daily activities and ability to perform.
[FULL STORY]
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Mark Yagerman, an equity owner of the Manhattan law firm of Smith Mazure Director Wilkins Young & Yagerman, P.C. and long-time DRI member, recently successfully defended the New York City Transit Authority in Supreme Court, Kings County before the Honorable Justice Baynes and had a defense verdict on behalf of New York City Transit Authority in a pedestrian knockdown involving a 14-year-old male crossing in the crosswalk when hit by a New York City Transit Authority bus. The case involved claims of brain injury and multiple foot fractures, causing the plaintiff to lose one year from attending school.
[FULL STORY]
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DRI member Melissa Habeck, a shareholder with Forsberg & Umlauf, P.S. in Seattle, Washington, was successful in getting the plaintiff’s design defect claim dismissed on summary judgment. On May 15, 2009, the King County Superior Court, in Morgan v. AGCO Corp., extended the Washington Supreme Court’s ruling in Simonetta v. Viad Corp., 165 Wn.2d 341, 197 Wn.3d 127 (2008) and Braaten v. Saberhagen Holdings, 165 Wn.2d 373, 198 P.3d 493 (2008) to design defect claims.
[FULL STORY]
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A Salt Lake County jury recently returned a verdict of no cause of action following a two-week insurance bad faith trial handled by Strong & Hanni partners and DRI members, Stuart Schultz, Stephen Trayner and Byron Martin. The suit, Leventhal v. AMCO Insurance, involved breach of contract and bad faith claims brought against a commercial property insurer under an all risk policy arising out of the alleged theft or disappearance of more than $14 million dollars in heavy machinery and resulting damage to the insured structure. The plaintiff also alleged that, as a result of the insurer’s failure to timely investigate and adjust the damage, the plaintiff was forced to sell the structure at a loss.
[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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New Member Spotlight
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DRI is pleased to welcome new member John B. Saye. Mr. Saye is a partner at Hayes, Harkey, Smith & Cascio LLP, a leading law firm in northern Louisiana focusing on litigation involving insurance issues, product liability, and professional liability matters.
[FULL STORY]
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Legislative Tracking
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HAWAII (Contributors: Dawn T. Sugihara and Anne T. Horiuchi, Goodsill Anderson Quinn & Stifel LLP)
COMMERCIAL LITIGATION
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)
• 07/15/09: The Governor vetoed S.B. 1005. In a Special Session, the Legislature overrode the veto, making this measure Act 28 of the Special Session.
EMPLOYMENT LAW
H.B. 31 relating to Employment Practices (credit history; discriminatory practice)
• Establishes employer’s use of individual’s credit history in hiring and termination decisions as an unlawful discriminatory practice; provided that the individual’s credit information directly relates to a bona fide occupational qualification and that employers expressly permitted to inquire into credit history for employment purposes pursuant to any federal or state law, managerial and supervisory employees, and certain financial institutions are exempt. Takes effect July 1, 2009. (CD1)
• 07/15/09: The Governor vetoed H.B. 31. In a Special Session, the Legislature overrode the veto, making this measure Act 1 of the Special Session.
S.B. 1183 relating to Discriminatory Practices (disability)
• Requires the Hawaii civil rights commission to define in administrative rules certain definitions for purposes of discriminatory employment practices. (CD1)
• 07/15/09: The Governor vetoed S.B. 1183. In a Special Session, the Legislature overrode the veto, making this Act 30 of the Special Session.
H.B. 982 relating to Family Leave (data collection system)
• Establishes a new data collection system for family leave. Appropriates $10,000 from the disability benefits special fund. Authorizes the use of these funds for the data system. (CD1)
• 07/15/09: The Governor vetoed H.B. 982. In a Special Session, the Legislature overrode the veto, making this Act 7 of the Special Session.
H.B. 952 relating to Collective Bargaining (card check)
• Certifies entities as exclusive representatives without an election where no other representatives are certified as the exclusive bargaining representatives for employers with an annual gross revenue of $5 million or more. Requires immediate collective bargaining between parties once entities are certified as exclusive representatives. Makes it a violation for an employer to commit unfair or prohibited practices interfering with an employee’s statutory rights or discriminating against an employer or an employee for exercising protected conduct, subject to a civil penalty of up to $10,000 per violation. Effective July 1, 2009. (CD1)
• 07/15/09: The Governor vetoed H.B. 952. In a Special Session, the Legislature overrode the veto, making this Act 6 of the Special Session.
[MORE]
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Quote of the Week
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In the end, it's not the years in your life that count. It's the life in your years.
— Abraham Lincoln
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DRI Cares
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David M. Davis, a shareholder and director with Davis & Wilkerson, P.C. in Austin, Texas, is currently serving on the board of directors of the Championship Hearts Foundation, an organization committed to reducing cardiovascular disease in central Texas by promoting education, awareness and life-saving technology. The organization provides free heart testing for Austin area high school students participating in athletics, band and cheerleading. Thanks to a recent grant from the state, the foundation will also administer a pilot program to test high school students in Houston and Dallas. He chairs the Finance and Compliance Committee.
[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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Chinese Drywall Litigation (webcast)
August 17, 2009
DRI's National Workers' Compensation Review
August 17-18, 2009
Orlando World Center Marriott, Orlando, Florida
Payer Statute and the Medicare, Medicaid and SCHIP Extension Act: Impact on Litigating Personal Injury (webcast)
August 26, 2009
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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Current Issues in Medical Liability and Health Care Law
Defending Damages Claims in Business Tort Cases
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