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This Week's Feature
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TWOMBLY AND IQBAL—MOTIONS TO DISMISS ARE ALIVE AND WELL
By Erna A.P. Womble and George K. Evans, Jr.
Womble Carlyle Sandridge & Rice, PLLC, Winston-Salem, North Carolina
In Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007), an antitrust case, the Supreme Court held that the complaint was insufficient to state a claim for relief. In doing so, it set aside a familiar test from Conley v. Gibson, 78 S.Ct. 99 (1957), and announced a new approach for analyzing motions under Rule 12. Under Conley, claims were not to be “dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id. at 102. The bar for surviving a motion to dismiss is now higher.
[FULL STORY]
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DRI News
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DRI is saddened to report that Rhonda L. Hawkins, the Executive Director of the New Mexico Defense Lawyers Association (NMDLA), passed away on July 30, 2009, at the age of 42. She was a life-long resident of Albuquerque.
[FULL STORY]
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DRI Podcasts Now Available
DRI is currently offering podcasts! Podcasts contain the audio portion of DRI’s successful webcasts and can be used with most MP3 devices. Although schedules may prohibit you from viewing a webcast at a specified time and location, DRI podcasts will enable you to listen to previously recorded webcasts at your convenience. Even better–in most jurisdictions you can earn CLE credit on the go! Podcasts are available for download for a nominal fee of $35 via the DRI website under the Seminars tab at www.dri.org.
[FULL STORY]
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BLOGGERS WANTED
Are you a DRI member with a blog site? Do you regularly post defense-oriented blogs on other sites? Do you like to comment on current topics of interest to DRI members? If so, DRI would like to hear from you. Why not consider cross posting your timely blog entries on the For The Defense website (www.forthedefense.org)? DRI would also like to include links on the FTD website to DRI member blogs, and encourage members to link directly to the FTD website.
[FULL STORY]
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National Foundation for Judicial Excellence (NFJE)
Established in 2004, the 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. The NFJE is the only organization of its kind governed by defense lawyers. The NFJE successfully produces a first-rate annual symposium attracting 10 percent of state appellate and supreme court judges. The symposiums feature an array of nationally distinguished legal experts and scholars discussing the contemporary and complex legal issues relevant today in courtrooms across the country. The end result is a top-quality series of educational programs provided by the NFJE, enabling our nation’s appellate judges to perform at their highest levels.
[FULL STORY]
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Punitive Damages: A State-by-State Compendium
The newest publication in the Defense Library Series covers the law of each state (plus the District of Columbia and Canada) governing punitive damages. Each chapter is authored by experienced practitioners who are members of the DRI Product Liability Committee. The following topics are addressed in detail: background and basics; pleading; discovery; proof; defenses; jury instructions; amounts recoverable; who recovers; insurance/indemnity issues; appeals; miscellaneous considerations. Click here to pre-order your copy today and for more information on this new release!
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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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And The Defense Wins!
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DRI Immediate Past President John H. Martin and DRI member Janelle L. Davis of Thompson & Knight LLP in Dallas obtained a federal court defense jury verdict for American Airlines and American Eagle Airlines. Following the seven-day trial, the jury found that no negligence on the part of American Airlines or American Eagle Airlines proximately caused the death of the plaintiffs' decedent. The plaintiffs accused the airlines of negligently causing the decedent to have a heart attack and then failing to resuscitate him properly. Scott P. Stolley, chair of the DRI Appellate Advocacy and Amicus Curiae Committees, and DRI member Jennifer P. Henry of Thompson & Knight LLP also contributed to this winning effort.
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On April 30, 2009, the United States Court of Appeals for the Fifth Circuit affirmed the dismissal of all claims against an engineering defendant, Modjeski and Masters, Inc., in the Hurricane Katrina levee breach consolidated litigation in federal court in New Orleans. DRI member Francis J. Barry, Jr. of Deutsch, Kerrigan & Stiles in New Orleans represented Modjeski and Masters. Over 300,000 claims, asserting $400 billion in damages, were filed against the U.S. Army Corps of Engineers, the Orleans Levee District, and several contractors and engineering firms that were engaged in various projects in the outfall drainage canals in New Orleans before the August 2005 hurricane.
[FULL STORY]
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In a recent trial of the first of approximately 130 toxic tort plaintiffs asserting that the agricultural practice of land applying poultry litter as fertilizer caused a wide array of cancers among the population of a small community in Washington County, Arkansas, Sherry P. Bartley of Mitchell, Williams, Selig, Gates & Woodyard, PLLC in Little Rock, Arkansas, and A. Scott McDaniel of McDaniel, Hixon, Longwell & Acord, PLLC in Tulsa, Oklahoma, achieved a directed verdict for their poultry industry client.
[FULL STORY]
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DRI members Cynthia W. Kolb and Scott M. Strauss, directors at the Little Rock, Arkansas law firm of Barber, McCaskill, Jones, and Hale, P.A., obtained summary judgment for The Cincinnati Insurance Companies in a declaratory judgment action involving alleged faulty construction in the case of The Cincinnati Insurance Companies v. Collier Landholdings, LLC, et al., 614 F.Supp.2d 960 (WD Ark 2009).
[FULL STORY]
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DRI members Lin West and Guy Hughes of Woodward, Hobson & Fulton’s Lexington, Kentucky office recently obtained a defense verdict for CSX Transportation, Inc. in Hazard, Kentucky. On May 5, 2009, after a six-day trial of a railroad machinist’s Federal Employers Liability Act occupational claims, a Perry County, Kentucky Circuit Court jury returned a verdict for CSXT.
[FULL STORY]
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Ken Lang, Amy Decker and Scott Schillings of Hinkle Elkouri Law Firm L.L.C. in Wichita, Kansas, partnered with Eric Sommer of Sommer, Udall, Hardwick & Hyatt, PA in Santa Fe to successfully defend the Coleman Company in a product liability case involving a propane heater and the 2005 deaths of a father and son. The father was a security guard at a ranch near Santa Fe during the production of a Turner Films, Inc. television miniseries. He and his 13-year-old son were found dead in a small storage shed where they had been sleeping. A large Coleman propane construction heater was found inside the shed.
[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 Beth S. Rose. Ms. Rose is an attorney at Sills Cummis & Gross, a firm whose corporate, litigation, and employment and labor practices were ranked in the top three in the state of New Jersey in the 2009 edition of Chambers USA Guide to America's Leading Lawyers for Business.
[FULL STORY]
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Quote of the Week
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Success is always temporary. When all is said and done, the only thing you'll have left is your character.
—Vince Gill
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DRI Cares
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DRI member Robert L. Dietz, a shareholder with the law firm of Zimmerman Kiser Sutcliffe (ZKS) in Orlando, Florida, was recently awarded the 2009 Judge J.C. ‘Jake' Stone Distinguished Service Award, the highest pro bono honor bestowed by the Legal Aid Society (LAS) of the Orange County Bar. It is given to one attorney each year who has demonstrated lifetime dedication to pro bono work.
[FULL STORY]
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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
Insurance Coverage and Practice
December 3-4, 2009
Sheraton New York Hotel & Towers, New York, New York
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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