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This Week's Feature
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Annihilating Damages and the Case of Sharper Image
By Robert Bodzin and Cathy Arias
Burnham Brown, Oakland, California
Despite strong efforts to implement tort reform, class action lawsuits remain a serious threat to the retail, restaurant and hospitality industries. The combination of attorneys' fees, awards of statutory penalties, damages awards and/or refunds can at times be overwhelming. Some companies have successfully defeated class certification by advancing the argument that the potential monetary award, if imposed, will annihilate the business, which means essentially that no one, not even the class members or the attorneys will be paid at the end of the day. Our article addresses the legal standards applied in such cases. We also touch on the cautionary tale of how Sharper Image, chased by nationwide class action lawsuits, went from a vibrant and profitable enterprise to a bankrupt company.
[FULL STORY]
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DRI News
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Welcome to the following new DRI State Representatives!
Colorado: Brett Wendt, White and Steele
Connecticut: Cesar A. Noble, Noble Spector & O'Connor
Indiana: Thomas R. Schultz, Schultz & Pogue
Minnesota: Paul A. Rajkowski, Rajkowski Hansmeier
Mississippi: Clinton McKee Guenther, Upshaw Williams Biggers
Missouri: Mariam Decker, Oliver Walker Wilson
New Jersey: Michael J. Leegan, Hack Piro O'Day
New York: Thomas Maroney, Maroney O'Connor
North Dakota: Larry L. Boschee, Pearce & Durick
Oklahoma: H. Grady Parker, Looney Nichols & Johnson
South Dakota: Lisa Marso, Boyce Greenfield Pashby & Welk
Texas: James R. Old, Germer Gertz
Utah: Bruce C. Burt, Nelson Chipman & Burt
Virginia: Heather K. Bardot, Trichilo Bancroft McGavin
Washington: Jill Haavig Stone, Burgess Fitzer
Washington, D.C.: Juli Z. Haller, Eccleston & Wolf
West Virginia: Stephen R. Crislip, Jackson Kelly
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Congratulations to the following new committee leaders:
Appellate Advocacy
Scott Burnett Smith (Chair)
Bradley Arant Boult Cummings
Huntsville, AL
Diane B. Bratvold (Vice Chair)
Briggs & Morgan
Minneapolis, MN
Commercial Litigation
Vickie L. Henry (Chair)
Foley Hoag
Boston, MA
Peter E. Strand (Vice Chair)
Shook Hardy & Bacon
Washington, DC
Construction Law
Christopher J. Belter (Chair)
Goldberg Segalla
Buffalo, NY
David V. Wilson, II (Vice Chair)
Hays McConn
Houston, TX
Diversity
Toyja E. Kelley (Chair)
Tydings & Rosenberg
Baltimore, MD
Douglas K. Burrell (Vice Chair)
Drew Eckl & Farnham
Atlanta, GA
Drug & Medical Device
Jack B. McCowan, Jr. (Chair)
Gordon & Rees
San Francisco, CA
Scott W. Sayler (Vice Chair)
Shook Hardy & Bacon
Kansas City, MO
Lawyers’ Professionalism & Ethics
Stacy Linn Moon (Chair)
Fees & Burgess
Huntsville, AL
Brett A. Ross (Vice Chair)
Carr Allison
Birmingham, AL
Medical Liability and Health Care Law
Philip L. Willman (Chair)
Moser and Marsalek
Saint Louis, MO
Ted J. McDonald, III (Vice Chair)
McCormick Adam & McDonald
Overland Park, KS
Product Liability
John F. Kuppens (Chair)
Nelson Mullins
Columbia, SC 29201
Charles A. Stewart, III (Vice Chair)
Bradley Arant Boult Cummings
Montgomery, AL
Professional Liability
Matthew S. Marrone (Chair)
Lucas and Cavalier
Philadelphia, PA
Daniel B. Meyer (Vice Chair)
O'Hagan Spencer
Chicago, IL
Workers’ Compensation
William E. Pipkin, Jr. (Chair)
Austill Lewis & Pipkin
Mobile, AL
Patricia Jean Clisham (Vice Chair)
Clisham Satriana & Biscan
Denver, CO
Young Lawyers
Cynthia P. Arends (Chair)
Halleland Lewis Nilan & Johnson
Minneapolis, MN
Laurie K. Miller (First Vice Chair)
Ellis & Winters
Cary, NC
Robert Craig Mayfield (Second Vice Chair)
Hill Ward Henderson
Tampa, FL
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Hot Topic – Residually Disabled or Totally Disabled
Wednesday, November 4, 2009
1:00 p.m. – 2:30 p.m. Central
This webcast is designed to help litigators and in-house counsel understand the two-headed residual/total disability claim. In-house counsel, outside attorneys, and a financial expert will closely examine the specific challenges, strategies and pitfalls involved in handling, litigating and trying residual claims, as distinguished from total disability claims. Register online and learn how to effectively determine whether a claim is total or residual, and much more. For more information, click here or visit www.dri.org.
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Appellate Advocacy Seminar
November 5-6, 2009
Hilton La Jolla Torrey Pines
La Jolla, California
At DRI’s eighth Appellate Advocacy Seminar, you will be treated to a distinguished faculty of judges, professors and practitioners. They will discuss practical points in writing, arguing and winning in your appellate practice; ethical issues in appellate practice; how to build an appellate practice; the use of moot courts; the client’s views of the use of appellate specialists in litigation; and a reflection on the great appellate lawyer and President, Abraham Lincoln. Come enhance your knowledge, hone your skills and see friends and colleagues from around the country. To register now, click here or call 312.795.1101 for more information!
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And The Defense Wins!
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DRI member Melissa J. Smallacombe of Ryan & Smallacombe, PLLC in Albany, New York, successfully represented the defendants in the case of Lajeunesse v. Massaroni in Schenectady County Supreme Court. The plaintiff slipped, twisted, and did an “almost split” on a scrap of carpet left on recently polyurethaned wooden floors in the luxury home defendants built and were in the process of selling to plaintiff. This was witnessed by the realtor.
[FULL STORY]
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Orders excluding expert witnesses pursuant to Daubert v. Merrill Dow or its state law progeny are not particularly rare. Far less common is the wholesale exclusion of a scientific hypothesis from evidence. However, Judge Arthur Recht of the First Judicial Circuit of West Virginia did just that in Carter, et al. v. CSX Transportation, Inc., a consolidated action brought pursuant to the Federal Employers’ Liability Act in which the plaintiffs, all former railroad employees, alleged irreversible brain damage as a purported consequence of excessive occupational exposure to chemical solvents. Jim Turner, a trial attorney in Huddleston Bolen LLP’s Huntington, West Virginia, office represented CSX.
[FULL STORY]
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An insurance company represented by DRI member Denny Brown at Buckley Brown, P.C. in Atlanta, Georgia, was awarded summary judgment in a lawsuit by a policyholder who claimed that the company had a duty under its general liability policy to indemnify the policyholder for a wrongful death claim. The underlying wrongful death claim against the policyholder involved the death of a mother and her two minor children who perished in a fire and was settled for $3.25 million. The policyholder was seeking to recover $2.25 million of this amount from the insurance company, pursuant to an umbrella endorsement attached to the policy. The policy also contained a “designated premises endorsement,” and the location where the fire occurred was not one of the premises designated for coverage in the endorsement.
[FULL STORY]
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DRI members John F. Renzulli and Christopher Renzulli of Renzulli Law Firm, LLP in White Plains, New York, successfully defended an appeal before the Ninth Circuit Court of Appeals in the matter of Ileto v. Glock, Inc., et al., 565 F.3d 1126 (2009), after obtaining dismissal of the plaintiffs’ complaint pursuant to the Protection of Lawful Commerce in Arms Act (PLCAA) in the U.S. District Court for the Central District of California. The highly publicized Ileto case arose from Bufford Furrow’s shooting of several children at the North Valley Jewish Community Center and subsequent murder of U.S. postal worker Joseph S. Ileto in Los Angeles on August 10, 1999. Mr. Furrow was later arrested and is serving life in prison.
[FULL STORY]
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The U.S. Court of Appeals for the First Circuit in June A. Taylor, et al. v. The American Chemistry Council, et al., No. 07-2422, 2009 U.S. App. LEXIS 17321 (1st Cir. Aug. 3, 2009) affirmed the U.S. District Court for the District of Massachusetts’ ruling granting summary judgment in favor of defendants Goodrich Corporation, American Chemistry Council, The Dow Chemical Company, GenCorp, Inc., The Goodyear Tire & Rubber Company and Union Carbide Corporation in a case alleging that a worker’s liver cancer had resulted from workplace exposure to vinyl chloride monomers (VCM). DRI members Timothy Coughlin and Thomas Feher of Thompson Hine LLP in Cleveland, Ohio, who represent a number of these defendants on a national basis in vinyl chloride litigation, along with DRI members Mark Granger and Richard Neumeier of Morrison Mahoney LLP in Boston and Springfield, Massachusetts, were successful in obtaining this ruling.
[FULL STORY]
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Keep those defense wins coming! Send a short summary in Word format and a recent photo (.jpg attachment) of yourself to Barb Lowery by email (blowery@dri.org).
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Leader Spotlight
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This week’s leader spotlight shines on Jerri L. Johnson, a managing shareholder in the Los Angeles, California, firm of Acker and Whipple. A DRI member since 2004, she has been active since her first year. Jerri Johnson currently serves as the committee editor for DRI’s Annual Law Practice Management Review for the Law Practice Management Committee and is active in the Trial Tactics Committee as a member of the steering committee for the Damages Seminar. At the 2009 Damages Seminar, she gave a presentation on how to defend claims involving CRPS/RSD, which was well received. She is also an active member of the Trucking Law Committee.
[FULL STORY]
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Quote of the Week
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It is difficult to say what is impossible, for the dream of yesterday is the hope of today and the reality of tomorrow.
— Robert H. Goddard
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DRI CLE Calendar
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Hot Topic — Residually Disabled or Totally Disabled (webcast)
November 4, 2009
Climate Change Litigation Heats Up (webcast)
November 5, 2009
Appellate Advocacy
November 5-6, 2009
Hilton La Jolla Torrey Pines, La Jolla, California
Handling a Trial as a First Chair (webcast)
November 11, 2009
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
Best Practices for Law Firm Profitability
December 3-4, 2009
Sheraton New York Hotel & Towers, New York, New York
Civil Rights and Governmental Tort Liability
January 27-29, 2010
The Westin San Diego, San Diego, California
Trucking Law
February 4-5, 2010
Caesars Palace, Las Vegas, Nevada
Medical Liability and Health Care Law
February 11-12, 2010
Arizona Biltmore, Phoenix, Arizona
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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