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This Week's Feature
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Doris’ Sweet Ten: Lessons Learned as a Juror
By Doris L. Sweetin, SweetinBleeke Attorneys, Indianapolis, Indiana
Recently I had the privilege and the rare experience to serve on a jury, albeit in a criminal case. Though many would prefer not to sit through a trial for various reasons, not the least of which is the time spent away from our own cases, when I received my summons for jury duty, I was excited at the prospect of getting to serve. For one, I was looking forward to watching other lawyers at work in the courtroom and, for another (though I would have preferred to serve on a civil case), the idea of serving in a criminal case was appealing if only to be exposed to forensic evidence outside of what we’ve now all seen on television.
[FULL STORY]
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Legal News
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California Appellate Court Upholds Order Denying Class Certification, Primarily Relying on Individualized Nature of Damages Inquiry
By Archis Parasharami, Mayer Brown LLP, Washington, D.C.
In Evans v. Lasco Bathware, Inc., the California Court of Appeal affirmed the denial of class certification in a lawsuit over allegedly defective products. Specifically, the appellate court held that the trial court did not abuse its discretion in denying class certification when individualized questions of damages predominated over a single common question, and the proposed plaintiffs did not adequately represent the interests of the class.
[FULL STORY]
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DRI News
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Congratulations to Al Parnell!
Longtime DRI leader Albert H. Parnell, a partner at Hawkins & Parnell LLP in Atlanta, was honored last week at a special dinner during the Asbestos Medicine Seminar in Miami. For 30 years Mr. Parnell has served DRI in many roles, including as a current and founding member of DRI’s prestigious Law Institute and a former member of DRI’s Board of Directors (1992–1995). He has served as the program chair or Law Institute liaison for DRI’s Damages Seminar for 19 years, and for the last 30 years has led the planning of DRI’s renowned Asbestos Medicine Seminar. At the dinner in Miami, DRI President Cary E. Hiltgen presented Mr. Parnell with a new award honoring outstanding achievement in the role of program chair for DRI CLE events. In the future the award will be presented at DRI’s Annual Meeting and will be known as the Albert H. Parnell Outstanding Program Chair Award. Commenting on Mr. Parnell’s leadership in the November issue of FTD, Mr. Hiltgen noted, “Al truly exemplifies what all lawyers should aspire to be. His dedication and commitment, not only to his practice, but also to DRI, clearly have made him an outstanding leader, outpacing his colleagues at every step."
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DRI past president John H. Martin and DRI member Scott D. Deatherage, partners in the Dallas office of Thompson & Knight LLP, have each been named "Lawyer of the Year" by The Best Lawyers in America® in their respective areas of practice. Mr. Martin was named Dallas Personal Injury Litigator of the Year and Mr. Deatherage was selected as Dallas Environmental Lawyer of the Year. DRI congratulates them both for this honor!
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The next edition of The Voice will appear on December 2. In the meantime, enjoy the Thanksgiving holiday!
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Trucking in 2010: Solutions for a New Decade
February 4-5, 2010
Caesars Palace
Las Vegas, Nevada
Join DRI’s Trucking Law Committee in Las Vegas to discuss critical solutions to the challenges facing the trucking industry in a changing world. Learn about the changes and trends in the regulatory and legal climate which are gravitating towards heightened compliance requirements and expanding theories of liability. Hear critical assessments of ongoing developments in science and technology that impact accident reconstruction of tractor/trailer accidents and the legal implications of adapting to the changing face of tractor/trailer technology. Gain insight on special challenges to case evaluation and management created by the current economic climate along with key developments on the insurance coverage front. To view the program, click here. In addition to the excellent legal education, the seminar will offer the opportunity to visit with vendors in the industry and network with in-house and outside counsel from across the country. Register now or call 312.795.1101 for more information. Special note: DRI is pleased to announce that the room rate for Caesars Palace has been reduced from $229 to $140 per night. The hotel block is limited and rooms and rates are available on a first-come, first-served basis. You must make your reservation by January 4, 2010 to be eligible for the group rate.
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DRI Young Lawyers' Supreme Court Subcommittee Update
By Lea Richmond, Carr Allison, Birmingham, Alabama
On November 3, 2009, the United States Supreme Court admitted nine DRI Young Lawyers into the Court's bar. I was lucky enough to be one of the nine. I remember the first time I heard about the Supreme Court Subcommittee during a Young Lawyers' Fly-in meeting in Chicago a couple of years ago. During the business meeting, Justin Hodge, who then served as the subcommittee's chair, explained that in addition to publishing short articles in The Whisper about the opinions and politics of the Court, the subcommittee annually shepherded several DRI Young Lawyers to Washington, D.C. for the formal swearing-in ceremony. Justin had just been to D.C. for the ceremony. He said repeatedly during his report that attending the formal swearing-in ceremony before the nine Justices was one of the best experiences of his legal carrier. I concur.
[FULL STORY]
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And The Defense Wins!
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DRI member Glenn F. Fencl, a shareholder at Chicago’s Johnson & Bell, Ltd., teamed with an associate recently to obtain a not guilty verdict in favor of their client, who had been involved in a rear-end collision. The plaintiff demanded over $900,000 at trial, during which the plaintiff claimed that he was rear ended by the defendant while stopping in heavy traffic. The plaintiff alleged that there were two impacts; the initial impact was severe and the second collision, which occurred when a third person pushed the defendant into the plaintiff a second time, resulted in only a minor impact.
[FULL STORY]
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Ryan J. McQueeney, a partner at Sanchez Daniels & Hoffman in Chicago, obtained a directed finding for Pay-Ease, Inc. and Dean Scaros in an employment contract dispute. Plaintiff Buck Pohlman, former CFO of Pay-Ease, Inc., sued Pay-Ease, Inc. and Dean Scaros for breach of contract and specific performance of his employment contract.
[FULL STORY]
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DRI member Adrian Mendoza, a shareholder in the Oakbrook, Illinois, firm of Lillig & Thorsness, Ltd., recently obtained a defense verdict in favor of a mortgage financing company in an alleged mortgage rescue fraud case in the Circuit Court of Cook County, Illinois. The plaintiff, who was facing foreclosure in 2005, alleged that she was the victim of a fraudulent scheme by various other defendants to take title to the plaintiff’s home and strip the equity from it over the course of two years under the pretext of helping her restore her credit and later buy back the property. The defendant lender issued a mortgage in 2006 to one of the other defendants who held title to the property at that time.
[FULL STORY]
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DRI’s Texas state representative James R. Old, Jr. and his partner Paula Blazek of Germer Gertz LLP successfully defended a national healthcare provider in a tortious interference trial in Beaumont (Jefferson County) Texas. The plaintiff was a radiologist who claimed that the defendant healthcare provider tortiously interfered with the radiologist’s partnership when the healthcare provider banned him (but not his partner) from its premises.
[FULL STORY]
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DRI members Aaron J. Silletto and Hans M. Pfaffenberger of Goldberg Simpson, LLC, in Louisville, Kentucky, successfully obtained a victory in the U.S. Court of Appeals for the Sixth Circuit on behalf of the insurance company in a unique commercial motor vehicle policy coverage case. The lawsuit involved a young woman who had been inappropriately physically assaulted in her apartment by the taxi driver who had driven her home. The driver not being available for suit, the plaintiff sued the taxi company on a vicarious liability theory and sued the taxi company’s commercial auto insurer for a declaration that the motor vehicle policy covered the loss.
[FULL STORY]
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DRI wants to hear about your latest win! 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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New Member Spotlight
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DRI is pleased to welcome new member Moy N. Ogilvie. A partner at McCarter & English in Hartford, Connecticut, she focuses her practice on product liability toxic tort matters in addition to handling general business litigation matters.
[FULL STORY]
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Legislative Tracking
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The Young Lawyers Legislative Subcommittee is led by Paul A. Wilhelm of Dykema Gossett PLLC in Detroit, Michigan, and co-vice chairs Joseph W. Ballard of Lewis, King, Krieg & Waldrop, P.C. in Knoxville, Tennessee, and Marie A. Trimble of Gordon & Rees LLP in San Francisco, California. Special thanks to these leaders, along with all of the other federal and state contributors.
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FEDERAL (Contributors: Michele Hale DeShazo, Kuchler Polk Schell Weiner &
Richeson, L.L.C.; Mia O. Hernandez, Shook, Hardy & Bacon)
HEALTH CARE
H.R. 3962, providing for Universal Health Care Coverage (The Affordable Health Care for America Act)
• Requires all Americans to carry health insurance, either through an employer, a government plan or by purchasing it on their own. Would require employers to provide coverage; would pay for the coverage expansion by raising taxes on upper-income earners.
• The government subsidies and consumer protections would not take effect until 2013. During the three-year transition, $5 billion in federal dollars would be provided to help get coverage for people with medical problems who are turned down by private insurers.
• Would significantly expand the federal-state Medicaid health program for low-income people.
• 11/7/09 – Passed the House by a vote of 220-215 (Rep. Joe Cao (R-Louisiana) was the only Republican who voted in favor of the bill).
• 11/16/09 – Scheduled to be brought to the floor of the Senate during the week. Sixty votes are needed to begin debate and bring it to a vote, which is the initial procedural hurdle facing the bill in the Senate.
ENVIRONMENTAL LAW
S. 1733, relating to Clean Energy (The Clean Energy Jobs and American Power Act; “Kerry-Boxer Climate Bill”)
• Creates clean energy jobs, promotes energy independence, reduces global warming pollution, and transitions to a clean energy economy. Requires 12% cut from 2005 greenhouse gas emissions by 2012, 20% cut by 2020, 42% cut by 2030, and 83% cut by 2050; creates cap-and-trade regime.
• 11/5/09: The Environment and Public Works Committee voted 11-1 to favorably report S. 1733 out of committee, despite a boycott by Republicans.
• 11/10/09: The Senate Finance Committee heard testimony focusing on consideration for future jobs from representatives from the Boilermakers’ Union, the Nuclear Energy Institute, the American Enterprise Institute, the Pacific Gas and Electric Company, and the American Counsel for Capital Formation.
NEW JERSEY (Contributors: Tiffany L. Christian and Michelle W. Sadowsky, DLA Piper LLP (US))
HEALTH AND HOSPITAL LAW
A-267 (P.L. 2009, c.131), relating to right to health care
• Authorizes a parent or guardian to request the use of an individualized healthcare plan for a student with diabetes, and provides for the emergency administration of glucagon for certain students.
• 10/01/09: The governor signed the bill.
CONSUMER PROTECTION
S-454 (P.L. 2009, c.128), relating to motor vehicle lemon law
• Expands consumer protections under New Jersey’s motor vehicle lemon law.
• Extends the period of "lemon law" coverage for new automobiles and motorcycles to first 24,000 miles of operation.
• Requires new, more detailed consumer notice
• 10/01/09: The governor signed the bill.
OHIO (Contributor: Douglas J. Feichtner, Dinsmore & Shohl, LLP)
ENVIRONMENTAL
H.B. 87, relating to energy efficiency
• Establish the Ohio Energy Resource Center at Ohio University's Voinovich School of Leadership and Public Affairs
• Act as knowledge hub for clean and advanced energy and energy efficiency projects
• Maintain database of research and development projects in the field
• Act as information clearinghouse regarding financial and technical assistance to private and public entities in the field
• Provide technical assistance in the field to state and local governments and businesses located in Appalachian counties
• Bill provides up to $75,000 in 2010 and up to $125,000 in 2011 to support the Center through the Advanced Energy Fund in the Ohio Department of Development
• 3/18/09 - Bill introduced
• 10/29/09 - Bill scheduled for Committee Report
H.B. 352, relating to public water systems
• Will require certain public water systems to conduct evaluations of their operating processes and correct deficiencies in those processes and to add prohibitions and penalties to the Safe Drinking Water Law
• 11/4/09 - Bill introduced
PENNSYLVANIA (Contributor: Michael F. Schleigh, Deasey, Mahoney, Valentini, & North, LP)
CONSTRUCTION/CONSUMER PROTECTION
S.B. 973 – Passage by House on Nov. 9, 2009
• Amendment to “Home Improvement Consumer Protection Act” which provides new definition for “home improvement retailer” (a person who sells materials for use in home improvement contracts), expanded forms of identification acceptable for licensing applications, and allowing home improvement licensees to now provide proof of self insurance with limits of at least $50,000.
• Amends application process for certified home improvement contractors to require that licensees’ application fees and penalties be placed in a “Home Improvement Account” to be administered by the Attorney General to carry out the enforcement provisions of the Act.
• Amended the Act so that threshold amount is raised from $1,000 to $5,000 for home improvement contracts as relates to prohibitions as to requiring home-owners to pay a deposit in excess of one-third of the contract price (or one-third of the contract price plus special materials to be ordered under the contract). An exception was also added to this provision for such “home improvement retailers” who: (a) posts an irrevocable letter of credit with the enforcement agency in the amount of $1000,000 per store (not to exceed $2,000,000) and (b) ensures that its contractors are registered and carry proof of liability insurance as above.
• Aggrieved homeowner’s may file a complaint against the home improvement retailer (“HIR”) with the enforcement agency and potentially draw against the HIRs letter of credit after the enforcement agency investigates the complaint, and makes a determination that the HIR has defaulted on the construction contract through either mediation or a complaint filed pursuant to the Unfair Trade Practices and Consumer Protection Law.
• A HIR with two draws on its Letter of Credit within a two year period will be prohibited from posting a letter of credit for a period of five years starting the date of the second draw.
PRODUCT LIABILITY/DRUG/MEDICAL
H.B. 196 – Passed by the House on Nov. 9, 2009
• Amendment to the Controlled Substance, Drug, Device and Cosmetic Act which created a misdemeanor offense for any person who retail sells any product containing ephedrine, pseudoephedrine, phenylpropanolamine (or any other salts, optical isomers or salts or optical isomers as the sole ingredient) if (1) not sold behind a counter where the public is no permitted; or (2) is not offered for sale within a locked cabinet which is located in an area where customers so have direct access.
HEALTH CARE
H.B. 1641 – Passed by the House on Nov. 10, 2009
• This bill proposed an Act requiring a circulation nurse in certain operating rooms was passed on second consideration after redacting provisions which would provide a definition for “Anesthesia” and “Deep sedation/analgesia” and dropped requirement that a registered nurse was required for “Anesthesia” or “Deep sedation/analgesia” procedures, but otherwise kept provisions requiring that health care facilities employ a licensed registered nurse as circulating nurse for all surgical procedures in operation rooms.
RHODE ISLAND (Contributor: Sara Fontes, Hanson Curran LLP)
INSURANCE
2009-H5199Aaa, 2009-S0229B, relating to licensing and full disclosure to consumers on insurance plans
• Seeks to establish licensing procedures and full disclosure requirements for Stranger-Originated Life Insurance contracts, otherwise known as “life settlement” plans.
• 11/5/09 – effected without Governor’s signature.
FINANCIAL SERVICES
2009-S0290B, relating to small business regulatory fairness in administrative procedures.
• Seeks to establish a chapter in Rhode Island General Laws for small business regulatory fairness administrative procedures.
• 11/9/09 – Signed by the Governor.
CIVIL PROCEDURE
2009-H5738, relating to punitive damages in wrongful death suits.
• Would allow for recovery of punitive damages in a wrongful death suit.
• 11/9/09 Vetoed by the Governor
WISCONSIN (Contributors: Pamela J. Tillman, Meissner Tierney Fisher & Nichols S.C. and Gesina M. Seiler, Axley Brynelson, LLP)
MEDICAL MALPRACTICE
S.B. 203, relating to claims for loss of society and companionship in medical malpractice cases
• Establishes a right for parents to recover for loss of society and companionship of an adult child injured due to acts of medical negligence; also establishes a right of an adult child to recover for the loss and society and companionship for the death of a parent due to medical negligence (both causes of action were previously barred by Wisconsin Supreme Court case law)
• 9/16 Report passage recommended by committee on Judiciary, Corrections, Insurance, Campaign Finance Reform and Housing
INTENTIONAL TORTS
S.B. 182, relating to intentional torts
• Increases the time limit for bringing an action for an intentional tort from two years to three years
• 10/23 Referred to committee on Rules
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Quote of the Week
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An optimist is a person who starts a new diet on Thanksgiving Day.
—Irv Kupcinet
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DRI CLE Calendar
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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
Strictly Retail
March 4-5, 2010
Wyndham Chicago Hotel, Chicago, Illinois
Damages
March 17-19, 2010
Vdara, Las Vegas, Nevada
Toxic Torts and Environmental Law
March 18-19, 2010
Sheraton New Orleans, New Orleans, Louisiana
Sharing Success—A Seminar for Women Lawyers
March 25-26, 2010
The Westin Kierland, Scottsdale, Arizona
For all other seminars, webconferences and webcasts, click here.
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Current Issues in Medical Liability and Health Care Law
Punitive Damages: A State-by-State Compendium
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