Monday, June 22, 2009
NIXON PEABODY SUES NEW HAMPSHIRE TO PREVENT LOOTING OF MEDICAL MALPRACTICE FUNDS
Getting national attention in legal circles is biglaw Nixon Peabody's pre-emptive strike against the New Hampshire's Attorney General and Insurance Commissioner in a law suit and aggressive motions (including to disqualify the AG's office) aimed at stopping the State from raiding $110 million in insurer New Hampshire Medical Malpractice Joint Underwriting Association's coffers to pay for the State's general obligations. The case is Tuttle v. New Hampshire Medical Malpractice Joint Underwriting Association by and through its Board of Directors, No. 09-E-0148 (Belknap Co., N.H., Super. Ct.).
In an outstanding play on the legal chessboard, Nixon Peabody also moved to restrain the transfer of any funds and disqualify the New Hampshire Attorney General's office from representing the state agencies in the case.
(In an unrelated case, yesterday Nixon Peabody won a U.S. Supreme Court ruling for in a special needs student against a Texas school district over payment of the student's private school tuition. See Bingham Bests Sidley in SCOTUS Ruling on Special Needs Student.)
The petition claims that the State's insurance department laid the groundwork for the transfer with new insurance department regulations that took effect earlier this year. New Hampshire's Attorney General's office backs the plan to transfer the fund's surplus. ("Legal Analysis of Proposal to Transfer Excess Funds Held by the Medical Malpractice Joint Underwriting Association")
In the New Hampshire case,
Nixon Peabody's legal team is led by Scott O'Connell and Kevin Fitzgerald.
See press coverage in The National Law Journal, "Battle heats up in New Hampshire over surplus medical malpractice funds", by Sheri Qualters, June 22, 2009 (registration required).
Wednesday, June 03, 2009
BEIRNE, MAYNARD & PARSONS' MARTIN BEIRNE FEATURED IN ABA JOURNAL ARTICLE "MOVING TO THE MIDDLE: SMALLER FIRMS GET CRACK AT BIGGER FISH"
Martin D. Beirne of the Network's Texas firm, Beirne, Maynard & Parsons, is featured in and article in the May 2009 ABA Journal article about the increasing ability of mid-sized firms to recruit exceptional talent, including top-tier partners.
"Martin D. Beirne is in the driver's seat. Two years ago, the founding partner of Beirne, Maynard & Parsons, a Texas firm specializing in corporate litigation with offices in Houston and Dallas, might not have had a shot at recruiting top-tier talent from big-name firms.
"But these days, pedigreed partners from large international firms are knocking on his door, eager to discuss moving to a more stable environment that holds increasing appeal for budget-sensitive clients."
The entire article, "Moving to the Middle: Smaller Firms Get Crack at Bigger Fish", can be found here.
Tuesday, May 26, 2009
FORMAN PERRY WATKINS KRUTZ & TARDY WINS TAKE-NOTHING DEFENSE VERDICT IN SILICOSIS LAWSUIT
The Jackson, Mississippi-based civil trial law firm of Forman Perry Watkins Krutz & Tardy LLP is announcing a take-nothing defense verdict handed down in a silicosis lawsuit on behalf of three separate companies, despite the plaintiff's attorney asking for an award of $4.5 million. Name partner Fred Krutz, along with partner Edwin S. "Win" Gault Jr., and associate Jennifer Jones Skipper from Forman Perry successfully represented Clemco Industries Corp., the world's largest manufacturer of air-powered blast cleaning equipment, and Precision Packaging, a packaging services company.
Plaintiff Eugene Westrope, 73, of Hazelhurst, Miss., filed suit against 18 different companies in March 2007 based on claims that he contracted the lung disease silicosis after using or working around the companies' products from 1964 through 1995. Mr. Westrope settled or otherwise resolved his claims against 15 other defendants before trial.
During jury selection, Circuit Court Judge Lamar Pickard allowed the Forman Perry attorneys to review the last four digits of the social security numbers for jury pool members to help identify potential jurors who previously filed legal claims similar to those alleged by Mr. Westrope. The Court allowed this examination based on the high number of local residents who have filed their own lawsuits based on alleged exposure to silica and asbestos.
Using the firm's extensive database of mass tort plaintiffs, the Forman Perry team successfully argued for the removal of all potential jurors who had filed similar litigation. The firm also identified those whose relatives had filed silica or asbestos litigation, as well as those who lived with people who had filed similar claims. Those potential jurors also were dismissed by the Court before opening statements began on May 13.
On May 21, jurors issued the take-nothing verdict in favor of Clemco and Precision after finding that none of the companies were responsible for Mr. Westrope's injuries.
Thursday, May 21, 2009
BEIRNE, MAYNARD & PARSONS' CLINT CORRIE'S ARTICLE SELECTED AS ONE OF ONLY FIVE BY "SECURITIES ARBITRATION COMMENTATOR" NEWSLETTER
The Securities Arbitration Commentator Newsletter has selected Clint Corrie's article, "Record Retention Requirements in Securities Litigation and Arbitration" as one of their five excellent articles by scholars and practitioners in the field of securities arbitration, all to gain perspective on the events and developments. The netwletter's choices represent the strategic, as well as the tactical, the academic as well as the practical.
For an excerpt of the newletter, please click here.
Friday, May 15, 2009
WHEELER TRIGG KENNEDY TO BECOME WHEELER TRIGG O'DONNELL
The partners of Wheeler Trigg Kennedy LLP have voted to change the 11-year-old firm's name to Wheeler Trigg O'Donnell LLP. The change will be effective June 1, 2009. The nationally recognized litigation firm is chaired by Michael L. O'Donnell, one of the firm’s five founders, who becomes a named partner with this change. Two other founders, Malcolm Wheeler and Jack Trigg, remain active partners in the firm.
Managing Partner Hugh Gottschalk stated, "Mike has been the heart of the firm from day one, serving as chairman since its inception, as well as managing partner in its early years. He is also the inspirational founder and current president of the firm’s charitable foundation. The firm's name change honors Mike's outstanding leadership and vision for the firm."
Also, effective June 1, 2009, the Wheeler Trigg Kennedy Foundation will become the Wheeler Trigg O'Donnell Foundation. The firm's street address and phone numbers will remain the same. The Web site address will change to wtotrial.com. The e-mail addresses of firm personnel will change to [last name]@wtotrial.com.
HOOD LAW FIRM WINS MEDICAL MALPRACTICE CASE
The team at the Hood Law Firm, LLC of Charleston, South Carolina has continued their success with another big defense verdict. On April 24, 2009, the trial team of Jamie Hood and John Weedon obtained a defense verdict for a colorectal surgeon and his practice. Plaintiffs alleged that Defendants performed a low anterior resection as opposed to a sigmoid colectomy which was the procedure that was called for as treatment for diverticulitis. Patient developed a pelvic abscess 15 days post-operative and alleged that Defendants failed to recognize signs of infection during the immediate 24 hour period following the procedure, which caused the abscess which ultimately led to severe pelvic floor dysfunction. Defendants established through objective medical evidence as well as expert testimony that a sigmoid colectomy was performed rather than a low anterior resection and that it was performed according to the standard of care. The Defendants' also proved that the patient exhibited no signs of infection at any point during the patient’s immediate post-operative course.
The Defendants made no settlement offers to the Plaintiff and after a one week trial, the jury returned a defense verdict.
VERDICT FOR HOOD LAW FIRM IN NEGLIGENT SUPERVISION CASE
Hood Law Firm, LLC, the Network's South Carolina firm, has continued its success with another excellent verdict. On April 22, 2009, the trial team of Chilton Grace Simmons and Elizabeth Ballentine obtained a $0 verdict for their client, Hilton Head Plantation Property Owners Association. Plaintiff Robert Hutka and co-defendant Michelle Tinti lived together and Plaintiff alleged they were engaged to be married. Plaintiff paid for the installation of a pool at Ms. Tinti's house on Hilton Head Island, with the alleged understanding she would reimburse him if they broke up. Ms. Tinti began a relationship with a security guard employed by Hilton Head Plantation Property Owners Association, and Plaintiff moved out of her house. Ms. Tinti subsequently filed domestic violence charges against Plaintiff. Plaintiff alleged the charges were instigated by the new boyfriend (co-defendant Security Guard Don Lagomarsino). Plaintiff sued co-defendant Michelle Tinti for breach of contract for the cost of pool ($35,000). He also sued co-defendants Michelle Tinti and Security Guard Don Lagomarsino for breach of fiduciary duty, civil conspiracy, malicious prosecution, and abuse of process. Plaintiff sued co-defendant Hilton Head Plantation Property Owners Association for negligent supervision and respondeat superior.
Judge Early struck Plaintiff's causes of action for breach of fiduciary duty and malicious prosecution as to the co-defendants Tinti and Lagomarsino. After the three day trial, the jury returned a verdict for the Plaintiff for $0 as to Hood Law Firm's client, the Property Owners Association, on both counts. The jury found for the Plaintiff against co-defendants Tinti and Lagomarsino for $3,136, on the charge of civil conspiracy, and for the co-defendants on the charge of abuse of process. Judge Early decided the quantum meruit cause of action for the cost of the pool ($35,000) as it was a legal question instead of a jury question, and ruled in favor of co-defendant Michelle Tinti on that count.
Tuesday, May 05, 2009
SNELL & WILMER PARTNER BARRY HALPERN SELECTED AS A 2009 DISTINGUISHED UNIVERSITY OF KANSAS SCHOOL OF LAW ALUMNUS
Barry D. Halpern has been selected as a 2009 Distinguished University of Kansas (KU) Law School Alumnus. Halpern was honored by the KU Law School on Saturday, May 2, 2009. The KU Law School's Distinguished Alumni Award, the school's highest honor, is presented KU School of Law graduates who have distinguished themselves through exemplary service to the legal profession, their communities, the university, and the country.
Halpern's practice focuses on business and professional litigation, including antitrust, healthcare, and legislative matters. He represents a number of Arizona's largest businesses, including several hospitals and professional organizations. Halpern joined Snell & Wilmer's Phoenix office in 1978 and began practice as a litigator, defending business and professional liability lawsuits. While maintaining an active trial practice, Halpern helped spearhead Snell & Wilmer's growth from a mid-sized Phoenix firm to one of the nation's best known regional law firms with eight offices, including the Northern Mexico office opened in 2008 and the early 2009 expansion into downtown Los Angeles. Halpern has balanced his practice with writing, speaking, and teaching, including service on the adjunct faculty of the W. P. Carey School of Business at Arizona State University. He has published articles for law reviews and journals, including the Kansas Law Review, the Whittier Law Review, Jurimetrics: The Journal of Law, Science, & Technology, and The Weekly Standard. He has also served on numerous bar, civic, and cultural boards. Halpern serves pro bono as a Superior Court Judge Pro Tem and has been listed in Best Lawyers in America for over a decade and named a Southwest Super Lawyer.
Tuesday, April 28, 2009
NETWORK WELCOMES BASS BERRY & SIMS OF TENNESSEE 
The Network welcomed its 24th member law firm this weekend at a meeting of in-house counsel and outside trial attorneys at the Silverado hotel in Napa, California. The meeting included approximately 8 hours of cutting edge litigation management CLE as well as a short course for the inner oenofile.
Bass Berry represents more than 30 publicly traded and Fortune 500 companies and have been involved in some of the largest and most important business and litigation matters in the country. Overton Thompson will be one of the firm's principal contact persons.
Overton is chair of the firm's Litigation Department. He focuses his practice on complex business litigation, including cases involving securities and shareholder class action defense, derivative actions, officer and director liability, intellectual property, breach of contract, business fraud, corporate and partnership dissolutions, lender liability, and trust and estates litigation.
Securities and Corporate: Overton has handled class actions, derivative actions, and merger and acquisition litigation for a number of public companies in cases pending in Tennessee, New York and Delaware. He was lead counsel for Genesco Inc. in its successful and much-publicized case involving the breach of a $1.5 billion merger agreement. The case, involving actions pending in both the Chancery Court of Davidson County, Tennessee and the U.S. District Court for the Southern District of New York, was reported in both The Wall Street Journal and The American Lawyer magazine. Overton was also lead counsel for an institutional minority-shareholder in the successful defense of a shareholder derivative/breach of fiduciary case tried in the Court of Chancery of the State of Delaware, Newcastle County. Overton has also handled cases involving alleged breaches of the securities laws, including particularly Section 10-b/10-b-5 cases.
Commercial and Banking: Overton has handled numerous cases over his career involving various commercial disputes. He has represented the plaintiff and defendant in a number of business fraud, breach of contract, and insurance disputes, representing companies in a wide array of industries. He has represented healthcare companies, senior-living providers, financial institutions and other businesses in cases pending in Tennessee and around the country. He has also represented both plaintiffs and defendants in a number of cases involving trusts and estates litigation.
Other Representative Matters include:
counsel for board of directors in successful defense of shareholder derivative action alleging defendants breached their fiduciary duty by manipulating the financial results and engaging in insider trading;
representation of mutual fund and fund investment advisor in class-action suit brought on behalf of former fund shareholders alleging various causes of action under federal securities laws and state common law;
representation of national accounting firm in securities class-action suit brought on behalf of shareholders of publicly-traded company alleging causes of action under federal securities laws;
representation of large national bank in consumer class action alleging violations of the Truth-In-Lending Act;
successful representation of start-up hi-tech manufacturing business in case alleging theft of trade secrets and breach of covenants not to compete; and
successful representation of national bank in multiple lender liability claims asserted by purchasers of limited partnership interests in failed real estate ventures.
BIG VICTORIES FOR DEUTSCH, KERRIGAN & STILES
In Forbes v. Cockerham, 2008-C-762 (La. 1/21/2009), Isaac "Ike" Ryan of New Orleans' Deutch, Kerrigan & Stiles enrolled as appellate counsel following a $12.6M jury verdict against the State of Louisiana. The case involved an intoxicated and recklessly speeding motorist that ran off Greenwell Springs Road, a highway known as "the most dangerous road in Louisiana." The plaintiff, Joshua Forbes, was a nine-year-old boy who suffered the amputation of his right arm and catastrophic orthopedic injuries. The trial judge granted a JNOV, holding that the driver of the vehicle was 100% responsible. The Court of Appeal reversed and reinstated the jury verdict. Mr. Ryan successfully drafted a writ application to the Louisiana Supreme Court. After briefing and argument, the Supreme Court reversed the court of appeal and overturned the jury's finding of fault. The State of Louisiana was held to be not at fault in the accident.
In Marcus Ryan v. Custom Ecology, 988 So.2d 214 (La.2008), Ike Ryan and Bob Kerrigan were enrolled as appellate counsel for a major insurance company after a Louisiana Court of Appeal overturned a jury's determination of $0 loss of future earning capacity and increased that award to $1.1 million. The defendants' sole option was to seek a writ of certiorari from the Louisiana Supreme Court. Mr. Kerrigan and Mr. Ryan successfully argued that the jury's determination of the amount, if any, of lost earning capacity is an issue of fact subject to the manifest error standard of review, and they showed that the jury's determination was supported by the evidence. The Louisiana Supreme Court agreed and found that the Court of Appeal inappropriately substituted its own judgment for the judgment of the trial court. The jury's verdict of "zero" was reinstated.
In Union Pacific Railroad Company v. Dunham Price Marine LLC, et al., John Fay represented Martin Marietta Materials, Inc., a publically traded aggregates and building materials company with revenues in excess of two billion dollars annually, in a trial where $1.5 million was at stake. The Plaintiff, Union Pacific Railroad Company, alleged that barges owned and operated by Martin Marietta broke away from their moorings during Hurricane Rita and collided with its railroad bridge in Westlake, Louisiana. It was alleged that Martin Marietta failed to prepare properly for Hurricane Rita, that it delayed in taking precautions to protect the barges from the anticipated forces of the Hurricane and that it left the barges in a poor location and improperly secured for the anticipated hurricane conditions. These claims were defended on the grounds that Martin Marietta personnel were properly monitoring the track and intensity of the hurricane, that proper precautions were made to identify a safe location for the barges and that the ultimate location and manner of securing the barges was reasonable and prudent when compared against the actions taken by prudent men under similar circumstances. After approximately four hours of deliberation the jury returned a verdict in favor of Martin Marietta Materials, Inc., dismissing the railroad's claim at its cost. Mr. Fay was able to prepare and litigate this case at a substantial cost savings to our client when compared to the other parties in this case. During the course of the trial preparation the Railroad had three lawyers working on the case, and had two attorneys participating throughout the trial. Similarly, a co-defendant had two attorneys in trial at all times.
DYKEMA PREVAILS WITH DEFENSE VERDICT IN TRIAL OF HOME FIRE ALLEGEDLY CAUSED BY VEHICLE
Dykema's elite Automotive Industry Team won a defense verdict for Ford Motor Company in a products liability action brought by Clarendon National Insurance Company, a U.S.-based property and casualty insurance company. Clarendon alleged that a home fire was caused by a defect in a Ford vehicle.
"We are very pleased that the jury considered all of the evidence at issue in this case and determined that Ford is not responsible for these damages," said Clay Guise, member of Dykema's Automotive Industry Team and lead counsel for Ford.
Clarendon alleged a defect in a Ford vehicle caused a fire that damaged the home of one of its insureds. Ford and Dykema countered, arguing that the fire originated in a different part of the garage and was not caused by the vehicle.
In Imperial County, California, a jury ruled in favor of Ford despite evidence that the vehicle in question was included in a previous product recall. Clarendon had sought recovery for payments of $200,000 made as a result of the incident.
Guise tried this case with Steven Smelser, a products liability attorney from Yukevich Calfo & Cavanaugh in Los Angeles.
WEINBERG WHEELER HUDGINS GUNN & DIAL WINS MEDICAL MALPRACTICE CASE
Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC ("WWHGD") attorneys Bob Tanner and Laura Voght recently won a medical malpractice case before the Georgia Court of Appeals. On behalf of Defendants/Appelless, a surgeon and his practice group, they obtained a ruling affirming the dismissal of all claims.
The Plaintiff initially filed suit against his treating surgeon, his professional corporation and St. Joseph's Hospital of Atlanta in the State Court of Fulton County. He alleged that Defendants breached the applicable standard of care by failing to maintain a sterile surgical environment during an orthopaedic procedure to replace a knee. In support of his Complaint, the Plaintiff submitted the Affidavit of a non-surgeon infectious disease specialist.
A Motion to Dismiss was filed on behalf of the Defendant doctor and his corporation asserting that the Plaintiff had failed to set forth any specific act of negligence committed by Defendants and that the affidavit of the non-surgeon infectious disease specialist was insufficient to support a claim against an orthopaedic surgeon. This Motion was granted by the trial court, and in January 2008, the Plaintiff filed a Notice of Appeal.
On April 16, 2009, the Court of Appeals issued a ruling in favor of the Defendants/Appellees, affirming the judgment of the Court below. The win was big for WWHGD and its clients in that the Court of Appeals, instead of offering a formal, published opinion on the matter, simply adapted the Appellees arguments and based its ruling on "the reasons and authority given in Appellees' brief."
Tuesday, April 21, 2009
SNELL & WILMER AND WEINBERG WHEELER HUDGINS GUNN & DIAL OBTAIN DEFENSE VERDICT IN GEORGIA HOUSEBOAT DROWNING TRIAL
A federal court jury in Albany, Georgia recently returned a unanimous defense verdict in favor of Sumerset Custom Houseboats, Inc. ("Sumerset") in a product liability case arising from a drowning on the Chattahoochee River. Sumerset was jointly represented at trial by Patrick X. Fowler of the Phoenix office of Snell & Wilmer L.L.P. and Y. Kevin Williams of the Atlanta, Georgia office of Weinberg Wheeler Hudgins Gunn & Dial, along with local counsel Louis Hatcher of the Albany, Georgia firm, Watson Spence.
The lawsuit was filed after a 57-year-old man drowned while trying to free an anchor that was stuck on the river bottom. Plaintiffs alleged that the man drowned due to exposure to carbon monoxide in the engine exhaust, and contended that the boat design was defective because it allowed propulsion engine exhaust to accumulate in a space beneath the rear deck of the boat where the propellers are located. Plaintiffs also alleged that the boat did not contain adequate warnings and information about the hazards of carbon monoxide. In its defense, Sumerset proved that the houseboat design was state-of-the-art, that the numerous alternative designs proposed by Plaintiffs were neither feasible nor available when the houseboat was built in 1999, and that the boat came with numerous warnings and information about carbon monoxide. Further, Sumerset presented evidence that carbon monoxide exposure probably did not cause the man to become disoriented while swimming in the cold, dark, murky river water beneath the large houseboat.
After a two-week trial, the jury returned the unanimous defense verdict in twenty minutes.
Thursday, April 16, 2009
LIGHTFOOT, FRANKLIN & WHITE WIN DEFENSE VERDICT FOR PHARMACIA CORP, ET AL.
After a trial lasting more than two weeks, a Jefferson County jury returned a verdict in favor of Pharmacia Corporation against five individual plaintiffs who claimed that exposure to polychlorinated biphenyls or PCBs caused them to develop diabetes or arthritis. The five plaintiffs were randomly selected from among approximately 3,000 plaintiffs with claims currently pending in 47 separate cases filed in Birmingham. The plaintiffs asked for several million dollars in compensatory and punitive damages, alleging that they were exposed to PCBs released from a manufacturing facility in Anniston, Alabama. Between 1935 and 1971, the facility manufactured PCBs. The facility was owned by the Monsanto Company until 1997 when Monsanto Company transferred the facility to Solutia Inc. Monsanto Company, Pharmacia Corporation and Upjohn subsequently merged to form Pharmacia. Pharmacia is a wholly-owned subsidiary of Pfizer. Buddy Cox and Kevin Clark were members of the trial team that included lawyers from other firms in Birmingham and St. Louis.
DYKEMA TEAM PREVAILS WITH LARGEST PLAINTIFF VERDICT IN OAKLAND COUNTY HISTORY
Jury Awards $47.7 Million in Lawsuit Against Tier-One Supplier
Members of Dykema's elite Automotive Industry Team, led by Jim Feeney, with Tom Murray and Jeffrey Miller, won a $47.7M verdict for Chrysler LLC in a breach of contract action against Hutchinson FTS, a designer and manufacturer of liquid heating and cooling lines for motor vehicles. Chrysler sued the Troy-based supplier to recover damages related to warranty costs and two separate recalls on parts Hutchinson provided.
"This is an extremely important decision as it comes during a crucial period for automakers and the industry's supply-chain," said Feeney. "In what may be the largest verdict in Oakland County history, we are very pleased that the jury ruled in our favor and found the defendant to be responsible for these damages."
Hutchinson provided hoses and cooling lines used in 2005 RS minivans that were recalled due to leaks in those parts. The problems surfaced in the first-model year of the van's fold-in-floor seat arrangement and was corrected by Chrysler in 2005-2006.
Chrysler and Dykema argued that Hutchinson had provided the defective parts, and thus became the cause of the recalls. Hutchinson countered, denying that the parts they provided were defective.
Citing the reasonableness of Chrysler's actions, an Oakland County jury ruled in favor of the plaintiff and awarded them nearly $47.7 million. Chrysler had sought reimbursement for all recalls and repairs made on defective parts supplied by Hutchinson.
-----
And this from:
Dykema Wins $47.7 Million Jury Verdict for Chrysler in Precedent-Setting Dispute with Parts Manufacturer
By Ben Hallman
April 17, 2009
It's going to take more than a damages award in a dispute with a supplier to save Chrysler’s bacon, but when you are an embattled automaker under government orders to merge with Fiat or file for bankruptcy, every $47.7 million counts.
In 2007, back when the U.S. auto industry was merely in serious trouble, Chrysler sued Hutchinson FTS, a parts supplier, over faulty hoses and aluminum cooling tubes redesigned by Hutchinson for the new 2005 RS series of Chrysler minivans. (Minivan aficionados out there--you know who you are--might recall that this was the first minivan designed to allow the seats in the back to fold into the floor, the heavily marketed "stow and go" feature.) Chrysler had to spend $80 million to replace the faulty hoses and tubes in 425,000 minivans. The car company, represented by Dykema, claimed in a Michigan state court complaint that Hutchinson was responsible for some of the cost.
Here's where it gets interesting, according to Dykema's James Feeney, who led the case for Chrysler. It was once nearly impossible for car companies to force a supplier to pay recall and repair costs. Suppliers would simply deny responsibility and claim that the car company should have detected the problem during testing. But in 2002, following Toyota's lead, Chrysler had Hutchinson and other suppliers sign a nonbinding agreement that gave cost-sharing guidelines in the event of a dispute like this. The Hutchinson case marked the first time the guidelines had come into play during litigation.
The result: After a ten-day trial, a jury in Oakland County, Mich., decided in favor of Chrysler. The jury ordered Hutchinson to pay 80 percent of the repair and replacement costs for the faulty hoses and tubes--the exact percentage set out in the nonbinding guidelines. The decision, Feeney told us, will force parts suppliers to take notice. "When the supplier community understands what happened here it will cause a ripple effect," he said.
Feeney said that Chrysler tried to keep its presentation to the jury simple, presenting what he described as a less academic theory of why the parts were faulty than Hutchinson. "Our photographs and parts contradicted their lab tests," he said. Chrysler argued that Hutchinson made changes to a part during a redesign, that those changes caused the leak, and that under the terms of the deal, the supplier was responsible for reimbursing Chrysler for much of the cost of fixing the problem. (Hutchinson was represented by Thomas Kilbane of Squire Sanders, who declined our request for comment.)
Feeney told us he was worried about whether jurors might have secret biases against Chrysler, given the company's economic condition. Parts suppliers also provide a big source of employment in Oakland County. But in the end, jurors needed only seven hours to find in Chrysler's favor.
Wednesday, April 08, 2009
NIXON PEABODY TEAM WINS 'KEY' VICTORY UPHOLDING DISMISSAL OF CLASS ACTION ATTEMPT
The 10th U.S. Circuit Court of Appeals has upheld a decision that safeguards a Nixon Peabody client from a putative national class action. The underlying dispute centered around the interpretation of an insurance provision in an equipment lease agreement, which required that lessee maintain sufficient property and liability insurance coverage for the equipment. The provision provided that, in the event the lessee failed to obtain the necessary coverage, Key Equipment Finance, the client, could step in and obtain the coverage "at lessee’s expense."
The plaintiff, a doctor who leased medical equipment from Key Equipment Finance and failed to obtain his own coverage, claimed that Key Equipment had wrongfully overcharged him and other lessees for providing the insurance coverage. In order to recover the funds collected pursuant to the insurance provision, the plaintiff filed an action. The plaintiff asserted myriad causes of action, including breach of contract, breach of implied covenant of good faith and fair dealing, intentional and negligent misrepresentation, and violations of multiple state consumer protection statutes.
Scott O'Connell, leader of the Litigation department's cross-practice Class Action Team, and former NP associate Paul Lanagan initially convinced the court to enforce the forum selection clause and transfer the case to the U.S. District Court for the District of Utah. The Utah court then granted the first motion to dismiss, dismissing all of plaintiff's claims with prejudice, except for the breach of contract and breach of covenant claims for which the court granted plaintiff leave to amend. After the plaintiff submitted an amended complaint, they moved to dismiss the two remaining claims. Motions were again granted with prejudice. Network firm Snell & Wilmer served as local counsel.
On appeal, Scott and Manchester financial services and securities litigation associate Dan Deane argued that the Utah court had conducted the correct analysis. Because plaintiff had conceded that the lease agreement was unambiguous, and he had not alleged any course of dealing that would bear on an interpretation of the agreement, his claims depended entirely on the plain language of the insurance provision. That language merely provided, however, that Key Equipment could obtain insurance “at lessee’s expense,” and did not explicitly impose any limitations on how that expense should be calculated. The 10th Circuit agreed, unanimously affirming the District Court’s decision without requiring oral argument.
Tuesday, April 07, 2009
TIM O'NEILL INDUCTED INTO AMERICAN COLLEGE OF TRIAL LAWYERS
Snell & Wilmer partner Timothy G. O'Neill has been inducted into the American College of Trial Lawyers.
Fellowship in the College is extended by invitation, after careful investigation, to experienced trial lawyers who have mastered the art of advocacy and whose professional careers have been marked by ethical conduct, professionalism, civility, and collegiality. Lawyers must have a minimum of 15 years of trial experience before they can be considered for Fellowship.
O'Neill has had an active trial practice for more than 23 years. He represents major corporate defendants as regional and national trial counsel, particularly in "pattern" tort litigation, and has tried cases to verdict in numerous federal and state courts around the country. O'Neill is a member of the firm's Executive Committee. He is an alumnus of the Arizona State University School of Law from which he graduated cum laude in 1985.
There are 65 attorneys in the 23 member firms of the Network of Trial Law firms who are members of the American College of Trial Lawyers:
Akerman Senterfitt
* J. Thomas Cardwell
Beirne, Maynard & Parsons, L.L.P.
* Blake Tartt
Bingham McCutchen LLP
* John J. Curtin, Jr.
* Francis H. Fox
* Joseph L. Kociubes
* Joseph T. McLaughlin
* James L. Hunt
* Loyd W. McCormick
* Donn P. Pickett
* Norman B. Richards
Blake, Cassels & Graydon LLP
* Donald J. M. Brown, Q.C.
* Neil Finkelstein
* Paul B. Schabas
Corr Cronin Michelson Baumgardner & Preece LLP
* Kelly Corr
* William F. Cronin
* William R. Squires, III
Dykema Gossett
* James P. Feeney
* Stephen Sward
* Thomas R. Hill
* Richard G. Schultz
Gibbons P.C.
* John T. Dolan
* Michael R. Griffinger
* Lawrence S. Lustberg
* Herman D. Michels
Goodell, DeVries, Leech & Dann, LLP
* Donald L. DeVries, Jr.
* Craig B. Merkle
* Susan T. Preston
LeClair Ryan, A Professional Corporation
* Everette G. Allen, Jr.
Lightfoot, Franklin & White, L.L.C.
* Samuel H. Franklin
* M. Christian King
* Warren B. Lightfoot
* Harlan I. Prater, IV
* Jere F. White, Jr.
Nixon Peabody LLP
* John B. McCrory
* Fredric C. Nelson
* Graydon S. Staring
* Robert C. Bernius
Sandberg, Phoenix & von Gontard, P.C.
* Kenneth W. Bean
Snell & Wilmer L.L.P.
* William S. O'Hare, Jr.
* Timothy G. O'Neill
* John J. Bouma
* Vaughn A. Crawford
* Paul J. Giancola
* Warren Earl Platt
* Alan L. Sullivan
Thompson Hine LLP
* Richard E. Guster
* Jacob K. Stein
* S. Stuart Eilers
* Daniel W. Hammer
* David J. Hooker
* Elizabeth B. Wright
Weinberg, Wheeler, Hudgins, Gunn & Dial, L.L.C.
* Terry C. Sullivan
* Robert G. Tanner
* Ben L. Weinberg, Jr.
* Sidney F. Wheeler
Wheeler Trigg Kennedy LLP
* Hugh Q. Gottschalk
* Kevin J. Kuhn
* Michael L. O'Donnell
* John R. Trigg
* Malcolm E. Wheeler
Wildman, Harrold, Allen & Dixon LLP
* Thomas D. Allen
* James P. Dorr
* Jerald P. Esrick
* Bernard Harrold
* Max Wildman
Friday, March 27, 2009
THE NETWORK OF TRIAL LAW FIRMS' LITIGATION MANAGEMENT SUPERCOURSE
"UNCORKING LITIGATION MANAGEMENT EXPERTISE"
April 23-26, 2009
In-house general counsel and senior litigation managers will attend two days of cutting-edge litigation management CLE provided by The Network of Trial Law Firms next month at our 46th Litigation Management Supercourse. This Spring's program will take place at the Silverado Resort in Napa Valley, California.
Comments from past attendees include:
"Excellent presentations. The 20-minute time frame keeps them substantive, tight and to the point. The morning just flew -- yesterday and today."
"Excellent panel!!"
"A very good program. Every presentation was top-notch. The level of expertise is highly impressive."
"Excellent panel on counsel selection."
"Very insightful comments from all your speakers in fast-moving format."
"The class action presentation was first rate."
"Very good program and speakers."
"Another great program - lots of useful information in an entertaining style."
"Technology was terrific - even better than before."
"Written materials on CD is also very helpful."
"Counsel selection panel was a great session. Excellent break-out session on litigation management. Chairs did a great job."
"Excellent day of CLE. Very informative and interesting. Quite a lot of information that will be useful in my practice for my employer."
"Excellent topics and presentations as usual. It's good to be back."
"Best presentation I've seen in e-discovery."
"A very good collection of presentations -- Thank You!"
"Panel discussion on partnership management of important litigation was superlative - I wanted more."
"Hope to see more in the future."
Network chair, Warren Platt, a senior litigation partner at Snell & wilmer in Orange County, CA, said "this program continues the Network's 16-year history of delivering highly entertaining cutting-edge CLE programming in the litigation management area."
Tony White, Network vice chair, and a senior litigation partner at Thompson Hine in Ohio, noted that the topics are varied, focused and decidedly to-the-point, each speaker limited to 20 minutes. "If a trial lawyer can't make his/her point in that time, he/she ought to consider another field."
Long ago the Network moved to concise rapid-fire speaking slots accompanied by heavy use of demonstratives and PowerPoint slides to get a lot of information across in a limited time.
Attorneys interested in attending are invited to contact any attorney at one of our 23 (soon to be 24) member law firms, or contact Ellis Mirsky, General Counsel and Executive Director of the Network.
For the agenda, speakers and other details, see the Network's website.
Dealmaker of the Week: Brock Gibson of Blake Cassels
AmLaw Daily, March 27, 2009 5:20 AM
Posted to AmLaw Daily by Julie Triedman
In early December, a few weeks before Brock Gibson took up the reins as chair of 550-lawyer Blake, Cassels & Graydon, he got a call from a longtime client, Calgary-based oil conglomerate Suncor Energy Inc.
Suncor's general counsel Terry Hopwood told Gibson that the company had initiated merger talks with rival Petro-Canada. Both companies are major players in the oil-rich sands of northwestern Canada, and a Petro-Canada takeover has long been the subject of speculation. A union of the two would create the largest Canadian oil and gas conglomerate by capitalization.
Gibson, 49, who has represented the company for securities work for more than a dozen years, had little choice but to set aside some management duties as merger talks ramped up through the late winter. On March 11, Gibson was working at Blake's New York office when he got another call from Hopwood. The deal was going into hyperdrive and he was needed back in Calgray as an agreement needed to be signed in ten days. "I have a new big important client called the firm," he notes, chuckling. "And I also have a big important client called Suncor. It can be a little tricky when they both call at the same time."
Gibson immediately flew back to Calgary, where he quickly mobilized his team, which was on alert. The matter was bigger, more complex, and more politically sensitive than any recent deals Brock could recall‹in fact, the largest oil and gas deal in the country since January 2007. Ultimately, some 150 lawyers and business-side advisors worked on the deal.
Unlike others, it also had to conform to a law specifically enacted to limit concentration of control in Petro-Canada, a onetime crown jewel among the country's nationalized industries (it was privatized in 1991). The law, which restricts stock ownership of any party to under 20 percent, has long been viewed by analysts as a drag on Petro-Canada's share price.
A critical concern for both parties was preserving secrecy. "The energy sector in Calgary is very concentrated," Gibson notes. "It wouldn't have taken much to start speculation on a deal." Gibson and the team from MacLeod Dixon representing Petro-Canada arranged meetings in a series of quiet venues. On days of important meetings, they had top executives and lawyers arrive in ones and twos in order to slide below the rumor-mill radar.
Ultimately, Brock and his counterpart at MacLeod Dixon, Robert Engbloom, were able to keep the deal under wraps until last Sunday night, when the ink was still drying on the agreement. "That was no small accomplishment," says Hopwood.
The parties ultimately settled on is what Canadian law terms an amalgamation, which is akin to a merger. As the two parties are merged and no shareholder ends up with more than 20 percent ownership, the transaction complies with the ownership rules.
Under the terms the all-stock deal announced Monday, both companies' shareholders will receive shares in the amalgamated entity. PetroCanada's shareholders will receive 1.28 shares of a new company, to be known as Suncor. Suncor shareholders will receive one-to-one shares of the new company.
There are still some major hoops to jump through. The amalgamation is being completed under a statutory plan of arrangement, which must be approved by a court. Final court approval is contingent on shareholder and regulatory approvals. And there's the rub: lawyers say the deal is likely to be a test case for a new, U.S.-style antitrust review provisions enacted last year. Under the new law, Canadian companies seeking to merge may be subject to the intensive and expensive antitrust regulatory scrutiny known as a "second request" that their U.S. counterparts have long had to submit to. That could delay a close. "I would fully expect they'd do a second request," notes Davies Ward Phillips & Vineberg's George Addy, a former head of Canada's Competition Bureau. Frankly everyone does."
Even with the remaining hoops to go through, Gibson--who is splitting his time between his home in Calgary and an apartment in Toronto, where the firm has its largest office-- may be finally able to get back to his other pressing business: managing the firm. At least until the next big client comes knocking.
Thursday, March 26, 2009
LOWENSTEIN ATTORNEYS DAVID HARRIS AND STEPHEN BUCKINGHAM WIN TREBLE DAMAGES AND PERMANENT INJUNCTION IN PATENT CASE AGAINST HONG KONG CONGLOMERATE
Roseland, NJ, March 5, 2009 – In a patent case that had its genesis nearly 20 years ago, a New Jersey company, Joyal Products, Inc., was awarded triple damages and granted permanent injunction against Johnson Electric North America and Johnson Electric Industrial Manufactory Limited, in a decision issued February 26 by Judge Joel A. Pisano of the United States District Court of New Jersey. See article in IP Today.
In October, 2008, a jury awarded damages of $4.6 million to Joyal, which Judge Pisano raised to $16.3 million, which includes attorneys’ fees of $1.6 million. In addition, Judge Pisano ordered Johnson Electric to pay an ongoing royalty to Joyal equal to 26 percent of Johnson’s gross sales revenues from sales of infringing motor armatures, whose patents are held by Joyal.
Joyal was represented by Lowenstein Sandler attorneys Stephen Buckingham and David Harris.
Joyal, founded in Newark in 1947, manufactured sophisticated electro-mechanical machines for companies including General Electric, Maytag, Ford Motor Company and Johnson Electric. Although the company sold its business gradually in the '90s, it retained critical patents, including one involving methods for making fuel pump motors that are placed inside gasoline tanks, which was infringed by Johnson.
Johnson Electric is a Hong Kong-based conglomerate whose revenue grew from $670 million to $2.2 billion between 2000 and 2008. After acquiring machines from Joyal, Johnson started manufacturing clone machines that practiced the method of the Joyal patent. Days before the trial Johnson withdrew its defense that there were any non-infringing alternatives available.
According to Judge Pisano's decision in Joyal Products v. Johnson Electric North America, "Johnson's conduct in this litigation was sufficiently egregious that it supported, along with other relevant factors, an award of enhanced damages."
Monday, March 23, 2009
FEDEX LAWYER (KELLY CORR OF CORR, CRONIN, MICHELSON, BAUMGARDNER & PREECE) SAYS CONTRACT DRIVERS SHOULD HAVE KNOWN JOB TERMS
Laurence Viele Davidson and Brad Broberg
Bloomberg News (Article Link)
FedEx Corp.'s contract ground drivers, who claim the company is denying them overtime pay and treating them like full-time workers, agreed to the terms of the job when they signed up, a lawyer told a Washington state jury.
"The bottom line is, I don't think there was a gun to their head," Kelly Corr said today during opening statements in Seattle state court. "There was no bait and switch."
More than 320 contract ground drivers at FedEx, the second-biggest package delivery company in the U.S., are suing in a class-action, or group, lawsuit, demanding to be paid for overtime at 1 1/2 times their regular pay. They also seek reimbursement for uniforms.
The plaintiffs owned so-called single-routes, and their lawyer Rebecca Roe said yesterday the drivers had no control over delivery prices, their schedules, the look of their vehicles or the uniforms they're required to wear.
The workers should have known what the job entailed when they signed an operating agreement, Corr said, as he concluded his opening statement which he began yesterday.
"There was an opportunity for them to do due diligence," he said.
Contracting out the delivery routes probably gives FedEx a cost advantage of more than 30 percent over United Parcel Service Inc., the world’s biggest package-delivery company, Marick Masters, a business professor at the University of Pittsburgh, said last year in reference to a similar suit in Indiana. UPS's drivers are represented by the Teamsters union.
Caveat Laboris
The nationwide class-action suit against FedEx in federal court in South Bend, Indiana, includes former and current ground delivery workers. Those drivers similarly claim the Memphis-based delivery company treats them as full-time workers, except for pay and benefits. The company denied the allegations.
FedEx settled a case in California state court that was similar to the Seattle lawsuit. FedEx paid $26.8 million to the 203 contractors and their lawyers last year.
The U.S. Internal Revenue Service issued and then retracted a preliminary assessment of $319 million in taxes against FedEx for misclassifying the drivers as contractors in 2002 for tax purposes. The IRS continues to probe the 2002 classification as well as that from 2004 to 2006.
Judge John Erlick is presiding over the case in King County Superior Court in Seattle and said yesterday the trial will last about a month.
FedEx shares rose $2.50, or 6.3 percent, to $42.58 at 4:15 p.m. in New York Stock Exchange composite trading.
The Seattle case is Anfinson v. FedEx Ground Package System Inc., 04-2-39981, Superior Court of Washington, King County (Seattle). The Indiana case is In re FedEx Ground Package System Inc. Employment Practices Litigation, 3:05-md-00527, U.S. District Court, Northern District of Indiana (South Bend).
Monday, March 16, 2009
WHEELER TRIGG KENNEDY LAWYERS TOP COLORADO SUPER LAWYERS LIST AGAIN
Wheeler Trigg Kennedy LLP is proud to announce that 10 of its 24 partners have been selected as Colorado Super Lawyers® for 2009. Two are on the top 10 list and an additional two are among the top 50. Since 2007, four WTK lawyers have been among the top 10 lawyers listed, including Michael O'Donnell and Malcolm Wheeler, both of whom are on the top 10 list for the second time this year. Hugh Gottschalk and Kevin Kuhn are among the top 50 this year and have been on the top 10 list previously.
According to Law & Politics which publishes Super Lawyers lists in every state, "only the top five percent of the lawyers in the state are named Super Lawyers." The 2009 list was published recently in Colorado Super Lawyers magazine and the April issue of 5280 magazine.
The WTK lawyers named to Colorado Super Lawyers 2009 and the practice areas in which they are listed appear below.
Standing from left:
Raymond Martin, Employment & Labor
Top 50 Kevin Kuhn, Personal Injury Defense: Medical Malpractice
John "Jack" Trigg, Class Action/Mass Torts
Terence Ridley, Civil Litigation Defense
Marsha Piccone, Appellate
Mark Kennedy (deceased), Franchise
John Vaught, Class Action/Mass Torts
John Fitzpatrick, Personal Injury Defense: Medical Malpractice
Top 50 Hugh Gottschalk, Business Litigation
Sitting from left:
Top 10 Michael O'Donnell, Personal Injury Defense: Products
Top 10 Malcolm Wheeler, Civil Litigation Defense
In addition, the nine Wheeler Trigg Kennedy lawyers listed below have been named to the inaugural list of Colorado Rising Stars® 2009, also published by Law & Politics.
Michael Alper, Insurance Coverage
Sean Baker, Business Litigation
Galen Bellamy, Business Litigation
Carolyn Fairless, Professional Liability: Defense
LaMar Jost, Personal Injury Defense: Products
Steven Kelso, Civil Litigation Defense
Craig May, Business Litigation
Erik Nadolink, Personal Injury Defense: Products
Michael Williams, Class Actions/Mass Torts
Thursday, February 19, 2009
DEUTSCH KERRIGAN & STILES WINS VICTORY IN TRUCK-ACCIDENT PERSONAL INJURY CASE THAT LEADS TO SANCTIONS AGAINST PLAINTIFFS AND THEIR ATTORNEY
David Groome of Deutsch, Kerrigan & Stiles handled the defense of a personal injury case (Eric Rojas, et al. v Hwy-Tech, Inc. et al.) which led not only to the client defendant paying no money to settle this matter, but in the Court sanctioning both plaintiffs and their attorney. Both plaintiffs subsequently dismissed their suit with prejudice in exchange for defendants not pursuing the money judgment against them. The plaintiff's attorney who had withdrawn and filed an intervention in the suit paid his share of the judgment to the client in order to bring the entire misadventure to an end.
Wednesday, February 18, 2009
TRIAL.COM LITIGATION MANAGEMENT PODCASTS NOW AVAILABLE ON ITUNES
The Network of Trial Law Firms is proud to announce the launch of our Litigation Management Podcasts available on iTunes for your iPod or iPhone. If you already have Apple's iTunes installed on your computer, you may visit this link to view and subscribe to our free podcast directory.
The podcasts, so far, consist of the SkyRadio interview of Warren Platt, the 2008-2009 Chair of the Network of Trial Law Firms, and audio files from each presentation at our last SuperCourse "ROCK-SOLID Litigation Management" held at The Boulders Resort and Golden Door Spa last October. Additional tracks from past programs will be added in the next month or two as well as tracks from all future programs shortly after they conclude.
Those without iTunes can listen or download the podcasts from the TRIAL.COM website by clicking on "Podcasts" in the menu bar or by adding the RSS Feed (http://www.trial.com/podcasts/tcpodcast.xml) to their Microsoft Outlook or favorite newsreader (My Yahoo!, Google Reader, NewsGator, etc.)
These podcasts are for information/entertainment purposes only and are not eligible for continuing legal education (CLE) credit in any state. For CLE credit, TRIAL.COM offers Online CLE courses through streaming video with materials for no charge to in-house counsel.
Friday, February 13, 2009
DYKEMA ATTORNEYS HONORED AS CLIENT SERVICE ALL-STARS
The Network's Michigan member firm, Dykema, a leading national law firm, recently announced that two members of the firm’s Litigation Department, Susan Artinian and Daniel Stephenson, have been named to the BTI Consulting Group’s Client Service All-Star Team for Law Firms 2009. This elite list honors a select group of attorneys who were identified by clients for having delivered superior client service to Fortune 1000 clients.
According to BTI, the 176 members of the Client Service All Star Team helped to drive client satisfaction among large corporations to its highest point in five years. Dykema is one of just 25 firms in the nation to have two attorneys recognized and is on a prestigious list that includes Skadden, Arps, Slate, Meagher & Flom, Latham & Watkins, Jones Day, Sidley Austin, Kirkland & Ellis and Mayer Brown.
"Amid the economic turmoil in 2008, Susan and Dan have shown the ability to deliver service in a way that adds more value to the client relationship," said Rex Schlaybaugh, Dykema’s Chairman and Chief Executive Officer. "We are proud of Dan and Susan for their outstanding client service performance and congratulate them on this tremendous honor."
BTI is a leading provider of strategic market research to law firms and professional services firms. They conduct private benchmarking, market awareness and client satisfaction research for some of the best-run organizations in the world. BTI recently conducted hundreds of individual interviews with corporate counsel at Fortune 1000 and large organizations as part of their goal to probe clients on different aspects of their relationships with law firms, including needs and priorities, the law firms they rely on, and the quality of service they receive.
Artinian has 28 years of experience in medical device and pharmaceutical, commercial and employment litigation defense on behalf of clients from a broad cross-section of industries, including drug and medical device manufacturers, retail and automotive. She currently serves as National Science and Expert Counsel for the Bayer Corporation in two major mass tort situations and has held a national role in previous mass tort litigation for the company. A resident of Grosse Pointe Park, Artinian received a B.S. and M.A. from the University of Michigan and a J.D., cum laude, from the University of Detroit.
Stephenson, a trial lawyer and member of the firm’s Executive Board, focuses his litigation practice on the defense of companies in the pharmaceutical, medical device and aviation industries. His mechanical engineering degree, with an emphasis on aeronautical engineering, gives him the insight to thoroughly assess the technology aspects of aviation-related legal disputes, some of which relate to airplane and helicopter disasters. A resident of Ann Arbor, Mr. Stephenson earned a B.S.M.E. from the University of California, Los Angeles and a J.D. from the University of Michigan.
Thursday, February 12, 2009
WEINBERG WHEELEER RECEIVES DEFENSE VERDICT IN HOUSEBOAT SUIT
Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC ("WWHGD") partner, Kevin Williams, received a defense verdict for his client in a case stemming from a May 2000 death on a houseboat in Georgia. The victim allegedly died from a drowning caused by disorientation due to carbon monoxide poisoning. Testing revealed the deceased had a CO level of 22% in his blood, which was reported as a toxic level.
The Estate of the deceased, Joel D. Martin, filed a product liability suit against Sumerset Custom Houseboats, Inc. in the U.S. District Court - Middle District of Georgia claiming that the product was defectively designed because the engine placement allowed for CO to accumulate under the rear of the boat and that there were inadequate safety warnings from the manufacturer about the dangers of CO. Mr. Martin drowned as he was trying to remove the boat’s anchor that had become stuck under water. It was not until the Plaintiff viewed a segment by “48 Hours” on CO in houseboats that they chose to file suit. This 48 Hours Show documented the dangers of CO on houseboats and was called, “The Silent Killer.” The Plaintiff’s attorneys, Boone & Stone, alleged that the CO that had accumulated in Mr. Martin’s body caused him to become disoriented under water thus leading to his drowning. The defense, lead by Kevin Williams of WWHGD, asserted that the boat had been used for a year before the drowning and a year after without an incident. There were opposing experts for both sides on the defect issue and the effect of 22% CO in the blood.
The jury reached a defense verdict in 20 minutes after a 2 ½ week trial. The Plaintiffs demand before trial was $2.3 million and they rejected a $300,000 settlement offer.
Friday, February 06, 2009
LEE ROBERTS ELECTED TO NEVADA LAW FOUNDATION
Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC ("WWHGD") partner, D. Lee Roberts, Jr., has been elected a Colleague of the Nevada Law Foundation. Colleagueship in the Foundation is a professional honor extended only to the leading lawyers and judges of Nevada who have demonstrated outstanding legal ability and who are recognized for their devotion to both their profession and the community. Out of over 10,000 current and former members of the State Bar of Nevada, Mr. Roberts is now one of only 121 lawyers and judges who have been recognized as a Lifetime Colleague since the program was founded in 1994.
The primary goal of the Nevada Law Foundation is to develop and maintain programs that provide legal-related services to the poor, to victims of domestic violence, and to children in need of protection by the juvenile court. Clark County Legal Services and other organizations supported by the foundation provide quality legal services in civil legal matters for low-income individuals and groups. The Committee to Aid Abused Women uses grant monies from the foundation to ensure that the survivors of domestic violence have access to the life-saving legal services of temporary protection and related orders. Another of the foundation's grantees, S.A.F.E. House, runs a multi-faceted program that provides system and legal advocacy while assisting domestic violence victims in their attempts to create safe and abuse-free lives for themselves and their children. Every day, these organizations make a positive difference in the lives of countless Nevadans, and Mr. Roberts is proud to support the foundation in its worthwhile efforts.
Mr. Roberts practices in WWHGD’s Las Vegas office, and has over 22 years of trial experience. He concentrates his practice in construction, catastrophic tort and contract litigation. Mr. Roberts’ legal expertise has also been recognized through Super Lawyers and Chambers USA’s annual listing of “America’s Leading Business Lawyers.” He is a frequent speaker at various educational and legal seminars.
AKERMAN SENTERFITT TEAM SCORES BIG WIN IN PRODUCTS LIABILITY "AUTISM DAMAGES" CLAIM
Timothy J. McDermott, Ryan R. Fuller and Heather M. Solanka of Akerman Senterfitt, representing a manufacturer of an infant child restraint, were successful in both their Daubert Motion To Exclude Plaintiffs’ Medical Experts, Edward Hoffman, M.D. and David M. Suhrbier, D.O., and in their companion Motion for Summary Judgment on the "autism claim" being advanced by those experts in the case. After having considered the very extensive briefing and evidentiary submissions of the parties, and after conducting a full day hearing to the foregoing and additional Daubert motions, Judge Casey Rogers granted the defense motions, including partial summary judgment. The Court ruled that the Plaintiffs’ medical experts would "not be permitted to offer any opinion that the accident in this case was a contributing factor in [the infant Plaintiff’s] Autism Spectrum Disorder", and further ruling that “the autism causation theory of [Plaintiffs’] experts Edward Hoffman and David Suhrbier, is not scientifically reliable and therefore will not be admissible at trial”.
The Plaintiff, a single mother of five children, had alleged that the infant car seat product failed in the very low-speed motor vehicle accident in question, resulting in alleged brain injury to her 15-day-old infant son which, in turn, allegedly caused his subsequently-diagnosed autism. In a Memorandum Opinion entered on January 28, 2009, Judge Rogers expanded on the underlying basis for her rulings, stating that the Plaintiffs’ medical experts had utilized faulty methodology (including their attempt to rely upon a claimed “differential diagnosis” methodology) in reaching their causation conclusions, and that their opinion that the infant’s autism stemmed from a brain injury suffered during the accident, “is not based on reliable, scientific reasoning”. Judge Rogers also accepted the defense arguments advanced by Mr. McDermott at the hearing that the various “scientific studies” relied upon by Plaintiffs’ experts were either medically irrelevant as applied to the brain injuries allegedly suffered by the infant Plaintiff, or were not otherwise scientifically reliable under Daubert to support the proposition that brain injury in a newborn infant can cause autism. The case is notable in that it appears to be the first case where a plaintiff has advanced the theory that “traumatic brain injury” can cause autism.
The Plaintiffs (who immediately dismissed their remaining, lesser damage claims) have appealed the Court’s Final Judgment entered against them to 11th Circuit Court of Appeals. Akerman’s client has a motion pending for an award of substantial attorneys’ fees and costs based upon a rejected Proposal for Settlement extended to the Plaintiffs early in the litigation.
Wednesday, February 04, 2009
SIX SUPER LAWYERS AGAIN AT CORR CRONIN
Corr Cronin Michelson Baumgardner & Preece is pleased to announce that once again six of its lawyers have been chosen by their peers as "Super Lawyers." Kelly Corr, Bill Cronin, Guy Michelson, Kevin Baumgardner, Josh Preece and Randy Squires were each selected for 2009. Fewer than five percent of the state's lawyers receive this recognition. Once again, both Kelly and Bill were also picked among the "Top 100" lawyers for the state and for the fifth time, Kelly was voted as one of the "Top Ten" lawyers in the state. More than 27,000 lawyers practice in Washington.
Wednesday, January 28, 2009
THOMPSON HINE TEAM THROWS OUT PLAINTIFF'S CONSPRIACY EXPERT
On January 12, 2009, in the Cuyahoga County Court of Common Pleas in Cleveland, Timothy Coughlin, Thomas Feher and Andrea Daloia of Thompson Hine, representing Goodrich Corporation, were successful in obtaining a Motion to Exclude Plaintiff’s Conspiracy Expert, Professor Gerald Markowitz. After extensive briefing and Rule 104 hearings, Justice Francis E. Sweeney found that the plaintiff’s claimed “conspiracy” expert's opinions as to the alleged conspiratorial actions and motives of “the vinyl industry” were to be excluded. Judge Sweeney excluded the testimony because it fell within the province of the jurors, and it was an improper attempt to introduce expert opinion as to the intent and motive of defendants.
The plaintiff had alleged that her decedent husband contracted hepatic angiosarcoma, a form of liver cancer, as a result of his occupational exposure to vinyl chloride monomer between 1955 and 1974, while employed at a polyvinyl chloride (“PVC”) manufacturing facility. In addition, the plaintiff claimed a conspiracy, among vinyl chloride manufacturers and users, to withhold and mischaracterize scientific data relating to health risks of vinyl chloride. The court found that Professor Markowitz's “expertise,” limited purely to his interpretation of the documents produced in litigation and provided by plaintiffs' counsel, invaded the responsibility of the jury. The court also found that Professor Markowitz held no scientific expertise and was not qualified to testify as to the state of the art of the evolving science. In addition, the court found that Professor Markowitz's opinions related to “scholarly arguments” for the rationale, intent and motive of various entities was more appropriately the task of counsel in argument rather than be given from the expert witness stand.
The court also excluded, in part, the plaintiff's industrial hygienist's opinions. Mr. James Jones’ exposure estimates were unreliable and based in no part upon any evidence relating to the specific exposure that the decedent may have seen.
Friday, January 16, 2009
GOODELL DEVRIES "TOPS" AMONG MARYLAND SUPER LAWYERS FOR 2009
The Maryland Super Lawyer honors Goodell, DeVries, Leech & Dann, LLP attorneys as 'Tops' for a third consecutive year as ranked by attorney peers. Donald L. DeVries, Jr. continues to earn a prestigious ranking as one of the Top 10 Super Lawyers in Maryland (2007, 2008, 2009); Susan T. Preston also repeats an earned rank as a Top 10 Super Lawyer in Maryland (2008, 2009), a Top 50 Super Lawyer in Maryland (2007, 2008, 2009) and one of Maryland’s Top 25 Women attorneys (2007, 2008, 2009); and Managing Partner, Linda S. Woolf, earns a third consecutive ranking as one of the Top 25 Women Lawyers in Maryland (2007, 2008, 2009) and is also recognized as one of the Top 50 Super Lawyers in Maryland.
Five Goodell, DeVries attorneys are recognized for their Super Lawyer status in the field of Product Liability Defense: Richard M. Barnes, Thomas J. Cullen, Jr., Charlie P. Goodell Jr., Jeffrey J. Hines, and Sidney G. Leech. One-third of all Maryland Product Liability Defense Super Lawyers are Goodell, DeVries attorneys.
Don DeVries, Craig B. Merkle, Thomas V. Monahan Jr., and Susan Preston are honored as Medical Malpractice Defense Super Lawyers. Rising Star, K. Nichole Nesbitt, is ranked as a top lawyer in Civil Litigation Defense.
GDLD congratulates Rick Barnes, Tom Cullen, Don DeVries, Charlie Goodell, Jeffrey Hines, Sidney Leech, Craig Merkle, Tom Monahan, Susan Preston, and Linda Woolf for being recognized in Maryland Super Lawyers for 2009, and Nikki Nesbitt for being named to Rising Stars for 2009.
Tuesday, January 13, 2009
THE LOSS OF MARK KENNEDY
The Wheeler Trigg Kennedy family of legal professionals mourns the loss of Mark Kennedy, one of the firm's founders. An avid skier, Mark died this past weekend while skiing in Canada.
Mark shared his love of skiing by supporting charities such as Snowboard Outreach Society, which works to develop positive self-images and values in at-risk youth through snow sports instruction. An animal lover with two dogs of his own, Mark also regularly contributed to the Denver Dumb Friends League (an animal shelter). He financially supported his alma maters, the Hawken School of Gates Mills, Ohio, Case Western Reserve University, and Syracuse University College of Law.
Mark's professional accomplishments included recognition by Chambers USA as a top national franchise lawyer, repeated recognition as a "super lawyer," and long-standing assignments as national and regional trial counsel for major automobile manufacturing companies. Mark was a tireless professional who led WTK's franchise litigation group since the firm was established.
Mark will be missed, but his legacy will live on in the strong litigation franchise team that he developed and led at WTK.
Contributions in Mark's memory may be made to the Wheeler Trigg Kennedy Foundation, a 501(c)(3) organization, in care of Connie Proulx, Executive Director, WTK Foundation, 1801 California Street, Suite 3600, Denver, CO 80202. Donations will be used for projects that Mark supported through the Foundation, such as those involving animal welfare and the mastery of snow sports by at-risk youth.
Funeral will be Saturday, January 17, 10:30 a.m. at Horan McConaty Funeral Home, 1091 South Colorado Blvd., Denver, Colorado.
Wednesday, January 07, 2009
GRUPO TELEVISA VS. UNIVISION: BINGHAM McCUTCHEN'S MARSHALL GROSSMAN IN A MEXICAN STANDOFF
Brian Baxter -- The AmLawDaily -- January 6, 2009
.jpg)
A trial that could change the face of Hispanic television got underway in U.S. district court in Los Angeles on Tuesday as Grupo Televisa, Mexico's largest media company, pressed its claims for over $100 million in damages from Univision, the leading Spanish-language broadcaster in the U.S.
Filed in May 2005, the suit claims that Univision is unfairly profiting from a 16-year-old programming agreement that grants the network exclusive rights to air Grupo Televisa's enormously popular telenovelas--Spanish-language soap operas, but much more entertaining--in the U.S.
Represented by chief trial counsel Marshall Grossman of Bingham McCutchen, Grupo Televisa is seeking $118 million in damages for additional licensing fees and ad revenue from Univision.
The bad blood between Univision and Grupo Televisa goes beyond the courtroom.
When Univision was acquired by a private investment firm led by media magnate Haim Saban, Boston-based private equity firm Thomas H. Lee Partners, and Fort Worth-based private equity firm TPG Capital for $13.7 billion in June 2006, Grupo Televisa was one of the losing bidders. The Mexico City-based media company subsequently sold its roughly 11 percent stake in Univision.
Grupo Televisa has since raised the litigation stakes by claiming that Univision's alleged unfair conduct should allow Grupo Televisa to be released from the programming agreement that it signed with the New York-based network in 1992.
If a Los Angeles jury agrees to terminate the programming agreement, Grupo Televisa could shop its steamy telenovelas to competing Spanish-language networks like Hialeha, Fla.-based Telemundo, a subsidiary of NBC Universal and General Electric. That would be a potentially devastating outcome for Univision, which already is saddled with debt stemming from its 2006 takeover.
Univision is being advised by longtime outside counsel Ronald Olson of Munger, Tolles & Olson. But facing a potential bet-the-company case, the broadcaster has turned to star litigator John Keker of San Francisco litigation boutique Keker & Van Nest as trial counsel. Assisting Keker at trial: Keker & Van Nest partners Elliot Peters, Susan Harriman, and R. James Slaughter.
Keker's opponent in the Grupo Televisa-Univision royalties dispute, noted L.A. litigation heavyweight Grossman, is no slouch himself. The Nebraska native told The Recorder in May 2007 that his book of business was roughly $15 million. (Grossman was finalizing a merger of his 40-lawyer L.A. litigation shop Alschuler Grossman with Bingham at the time.)
Along with fellow Bingham partners Stacy Harrison and Jonathan Loeb, Grossman is receiving assistance from Wachtell, Lipton, Rosen & Katz. The firm's representation of Grupo Televisa on corporate transactional and litigation matters began three years ago. Name partner Herb Wachtell, litigation partner Jonathan Moses, and litigation counsel Andrew Cheung are representing Grupo Televisa in several related actions against Univision.
In December Wachtell secured a victory for Grupo Televisa in a private judge proceeding in state court in California relating to soccer games shown on Univision. A separate bench trial over whether Grupo Televisa retains Internet rights to aired programs under its licensing agreement is slated for a bench trial in March.
Both Grossman and Keker were in court on Tuesday and thus unavailable for immediate comment. The case, which has been delayed four times and was last scheduled to go to trial in April, is before U.S. district court judge Philip Gutierrez in Los Angeles.
Tuesday, December 23, 2008
THE NATIONAL LAW JOURNAL INTERVIEWS BLAKES' MICHAEL GANS ON WEIGHING THE IMPACT OF CANADA'S GROUND-BREAKING "BELL" RULING
Vesna Jaksic / The National Law Journal / December 23, 2008
The Supreme Court of Canada on Dec. 19 released the reasons behind its June decision to allow a $42 billion (C$52 billion) acquisition of Montreal-based BCE Inc., or Bell Canada Enterprises, Canada's biggest telecommunications company and the owner of Bell Canada. While the deal — the world's biggest leveraged buyout at the time — has collapsed since, because BCE did not meet a solvency test required for the buyout, the court decision is still considered precedent regarding the duties of boards of directors.
In its 80-page decision, the court said that the directors' duty is to the corporation, not to stakeholders, and that stakeholders' reasonable expectation is simply that the directors act in the best interest of the corporation.
The National Law Journal talked to Michael Gans, a New York-based lawyer at Blake, Cassels & Graydon, a Canadian law firm. Gans is co-founder of the firm's New York office and co-head of the firm's private equity group. The NLJ asked Gans about the court decision in the case, which he has been following for months.
NLJ: What are your thoughts on the Supreme Court of Canada's decision?
MG: I think this judgment is consistent with what corporate lawyers in Canada expected, and I think it's well reasoned. I think the case is good news for corporate Canada in that it does affirm that corporate directors will be given broad room by the courts to exercise judgment as long as that judgment is reasonable and informed.
NLJ: How does the Canadian decision regarding directors' duties compare to what the U.S. courts have ruled?
MG: As most corporate lawyers would have probably expected, this judgment affirms that Canadian law is different than U.S. law in that value maximization and interests of the stakeholders are not necessarily paramount for Canadian directors; rather, their obligation is in the best interest of the corporation. Canadian boards have more leeway to consider all options and then undertake the path that's in the best interest of the corporation as a whole.
NLJ: What kind of impact will this decision have?
MG: This will be the paramount case on directors' duties. It provides greater certainty to corporate Canada in any kind of fundamental change scenario.
NLJ: Are there any parts of this decision you find particularly surprising or interesting?
MG: There are two things that as a corporate lawyer I find interesting. One is, the court gave a very clear analysis of the oppression remedy and specifically the factors that are used to determine whether a reasonable expectation of treatment on behalf of a stakeholder exists. Once you determine that a reasonable expectation exists, the second test is whether unfair or oppressive conduct has occurred.
The second was a clear distinction between how the oppression remedy and plan of arrangement approval works. For oppression, the court said you can look beyond the legal rights of stakeholders and to the economic impact of a decision. In contrast, in the plan of arrangement approval context, absent an exceptional circumstance, you just look to the legal rights of the stakeholder.
NLJ: Why do you think this case has been so closely watched on both sides of the border?
MG: BCE has over 600,000 shareholders. This is the largest leveraged buyout in history, not just Canadian history; there [are] tremendous dollars at stake, reputations at stake. It has very significant impact on corporate Canada.
FROM THIS WEEK'S ISSUE | A law firm sells itself by not really selling itself Lightfoot, Franklin & White is a law firm that is notable for what it lacks: a full-service marketing and business development department. The absence of a well-oiled and well-funded marketing machine doesn't seem to be slowing down the Birmingham, Ala.-based litigation firm, however. The 55-attorney shop receives unusually high marks from clients.
-----
A law firm sells itself by not really selling itself
Karen Sloan / Staff reporter
December 22, 2008
Lightfoot, Franklin & White is a law firm that is notable for what it lacks: a full-service marketing and business development department.
The absence of a well-oiled and well-funded marketing machine doesn't seem to be slowing down the Birmingham, Ala.-based litigation firm, however.
The 55-attorney shop received unusually high marks on a recent client satisfaction survey.
"We have surveyed thousands of law firm clients over the past 15 years, and Lightfoot's overall client satisfaction scores were the highest we have seen," said Charles A. Maddock, the Altman Weil consultant who managed the survey.
Clients praised the firm's legal work, fee structure and reputation.
So what's Lightfoot's secret to keeping clients happy and expanding its business without employing a stable of marketers?
It is pretty simple, said managing partner Adam Peck. The firm sells itself primarily by not trying so hard to sell itself. Instead of beating the bushes looking for new clients, attorneys focus on their existing clients and rely primarily on referrals for new business.
"The practice of law has become so focused on business and is less focused on serving clients," Peck said. "It should be the other way around. It may sound trite, but our main marketing tool is taking care of the clients we have. It's the work on our desks."
Peck said the firm has long maintained a culture that revolves around client services instead of business generation.
For instance, the firm intentionally does not track which attorney brings in what client.
The strategy helps ensure that clients end up working with the most qualified attorney for their matter, rather than automatically working with the attorney who brought them to the firm.
Straight from school
Also, the firm rarely brings on lateral attorneys, preferring instead to hire students straight out of law school, said partner Lee Hollis, who heads the firm's marketing efforts. That enables the firm to train new attorneys with the idea that client satisfaction is a top priority.
"Our culture is to do excellent work. To go out and win the case. It's not to bill hours into the Stone Age," Hollis said.
That can mean taking on short-term matters that aren't likely to generate much income for the firm but will help strengthen Lightfoot's relationship with the client. Those solid relationships can translate into referrals, Hollis said.
Along with Hollis, the firm's marketing department consists of Ginger Ann Clark, who splits her time between marketing and recruiting. Hollis said that the marketing budget is "virtually zero," and that Lightfoot does very little marketing beyond sending holiday cards and new-attorney announcements to clients.
Lightfoot, which was founded in 1990, serves a wide variety of clients primarily in civil defense litigation. Though based in Alabama, only about 10% of the firm's billable hours come from in-state clients. Lightfoot counts a number of Fortune 100 companies among its client roster, Peck said.
Mike Walton is among the Lightfoot clients who have recommended the firm to others. Walton heads litigation matters at Paccar Inc., the parent company for the Kenworth and Peterbilt lines of commercial vehicles. Lightfoot has been handling Paccar's catastrophic litigation cases for about 10 years, he said.
"I've referred people to them," Walton said. "They're doing an excellent job. Like any company, we're concerned about cost, and they've been able to work with us on that."
Hollis said the firm expected to score well on the client satisfaction survey but also expected to receive some constructive criticism, as well.
The main criticism clients had, however, was that they wished the firm would take on more matters outside Alabama. Firm leaders said they see those comments as a positive sign for future expansion rather than as a real problem.
"It really surprised us how good the scores were," Hollis said. "We were kind of floored."
Thursday, December 18, 2008
The Deputization Of State AGs Under CPSIA
An article currently appearing in Law360's Product Liability news.
By James W. Weller and Christopher D. Thomas, Nixon Peabody LLP
Law360, New York (December 17, 2008) -- In August 2008, the president signed into law the Consumer Product Safety Improvement Act of 2008 (the “Improvement Act”).
This legislation, which in large part was a reaction to an avalanche of recalls of children’s products of the last several years (mostly imported from China and the Far East), had an immediate and dramatic effect on the Consumer Product Safety Commission’s (“CPSC”) regulation of consumer products.
That dramatic effect is guaranteed to continue, as the CPSC rolls out specific rules that implement the Improvement Act.
To date, much of the media attention on the Improvement Act has focused on the effect the Act has on regulation of domestically manufactured and imported children’s products.
This is wholly warranted as the Improvement Act institutes sweeping changes which include lowering the requirements for permissible lead content of children’s goods, lowering permissible levels of lead permitted in paint and banning the use of certain plastic softeners or phthalates in children’s care items and toys.
Receiving less attention, though having no less potentially significant consequences and implications, are provisions of the Improvement Act which impact state regulation of consumer products.
Most significantly, the Improvement Act expands the jurisdiction of state attorneys general (“SAGs”) in regulating consumer products and taking action against manufacturers and distributors of products. Manufacturers, private labelers, importers and their insurers would do well to consider this aspect of the Improvement Act.
Under Section 218 of the Improvement Act, SAGs are now specifically authorized to commence suit in federal court alleging violation of any standard or rule promulgated by the Commission which affects a state’s residents.
In other words, state prosecutors are now armed with the ability to commence a suit for violation of applicable federal standards, regulations, rules and bans.
By enabling 50 SAGs to enforce standards and rules previously enforced solely by the CPSC, Congress has dramatically increased the resources available for the enforcement of consumer product rules, regulations and standards.
It has also created the potential for differing interpretation of product safety regulations and enforcement, depending on which agency commences an enforcement proceeding against a manufacturer and where.
Deputizing Of State Attorneys General
SAGs have long been active in the regulation of consumer products utilizing state consumer product statutes.
Recent examples include California AG actions to enforce state standards related to flammability of mattresses, and Illinois AG actions, in 2007, against Fisher-Price related to a toy blood pressure cuff. Nevertheless, these actions have been generally based on state laws and generally arose in a state court setting.
Section 218 of the Improvement Act changes things. Section 218 specifically provides that SAGs may commence suit in federal court to:
1. Stop the sale of products that allegedly violate safety standards administered by the CPSC;
2. Stop the sale of banned hazardous substances;
3. Stop the sale of products that have been recalled by CPSC;
4. Stop the sale of children products which have not been certified by third party laboratories as complying with the standards, rules and regulations administered by CPSC (once certification requirements have been implemented) and/or lack tracking labels (once this requirement is implemented in August 2009);
5. Enforce prohibitions against stock piling products in advance of regulation changes; and
6. Stop the sale of products with safety marks if use of such marks is unauthorized.
Before exercising its authority, SAGs must provide the Commission with 30 days notice. The CPSC then has a right to either institute an action itself or intervene in any suit subsequently commenced by the SAG.
In addition to the above categories of possible claims for injunctive relief, and indeed perhaps the most significant aspect of the deputization, the Improvement Act permits SAGs to initiate a civil action alleging that a product poses a “substantial product hazard.”
This enabling provision is a significant expansion of authority for SAGs. Under this mantel, a SAG can forego the 30-day notification requirement and file suit immediately in federal court.
Determination of what constitutes a “substantial product hazard” is, by necessity, a subjective process which requires consideration and balancing of a host of factors.
In the past it has been only the Commission which has made the determination, relying on factors such as: quality control data, test data, field reports of customer complaints and lawsuits.
Also relevant is the nature and severity of injuries that could be caused and the likelihood of encountering the hazard. Now, SAGs are invested with the authority to weigh these factors and make such determinations.
Obviously, the actions of one SAG could have significant ramifications for a product manufacturer well beyond the borders of that SAGs’ state.
The significance of vesting SAGs with discretion to determine that a “substantial product hazard” exists, and to commence an action on that basis cannot be overemphasized.
Certainly, instances have occurred where the Commission has commenced suit based on violation of a specific standard, rule or regulation, but, generally, the primary vehicle through which CPSC has exercised its enforcement authority has been based upon its determination that a product poses a “substantial product hazard”, and most recalls are made on this basis.
SAGs are likely to not be shy in utilizing this newly created authority. It is a matter of record that, at times, SAGs have been extremely critical of the CPSC and the vigorousness of its enforcement activities; examples abound.
For instance, Illinois Attorney General Lisa Madigan recently criticized the CPSC’s policing of resales of recalled “close-sleeper/bedside sleeper” baby bassinets by manufacturer Simplicity, Inc. (See, Michael Bologna, Illinois AG Madigan Blasts CPSC Over Sales of Recalled Products on Craig’s List,36 BNA Product Safety & Liability Reporter, No. 40 (Oct. 13, 2008)).
In August 2008, CPSC launched a nationwide recall of nearly 900,000 bassinets manufactured by Simplicity under the Graco logo and the “Winnie the Pooh” motif, following strangulation deaths of two infants using the product.
In doing so, CPSC determined that the product posed a substantial product hazard because infants could be trapped in the bassinets’ metal bars and ultimately suffocate.
Thereafter, the Illinois attorney general’s office began to receive reports that notwithstanding the recall, hundreds of recalled bassinets were being sold on Craig’s List and eBay by sellers apparently unaware of the recall and the danger CPSC had identified.
The attorney general launched an investigation and, based on her findings, was sharply critical of CPSC, calling into question the value of federally imposed recalls where secondhand markets continue to trade, apparently unaware, in the recalled product.
The Illinois attorney general called on the CPSC to more aggressively police internet sites selling potentially dangerous recalled items noting “If these recalled items are still for sale on the secondary market, then what good is a recall? It’s nothing more than a piece of paper if it doesn’t effectively communicate with consumers and hold manufacturers accountable.” Id.
While the Illinois attorney general’s investigation and criticism were in turn criticized by CPSC as “grand standing” the lessons for manufacturers and others are clear. An overworked and underfunded CPSC is likely to be supplemented by aggressive SAGs more than willing to aggressively pursue manufacturers of consumer products, and the headlines that such cases will undoubtedly garner.
Indeed, shortly after criticizing the CPSC’s handling of the recall situation with respect to the Simplicity bassinets, on Oct. 28, 2008 the Illinois attorney general filed a lawsuit in state court in Cook County, Ill., against SFCA Inc. (which had acquired the Simplicity brand in March 2008). People of the State of Illinois v. SFCA Inc., 08 CH 40702, Cook County Civ. Ct. (10/28/08).
The complaint maintains actions based on Illinois consumer product statutes and alleges that SFCA continued to supply design-flawed bassinets to Illinois retailers, despite knowing that the design had caused at least one death that led to a design change.
According to the complaint, SFCA refused to participate in the recall, claiming it wasn’t responsible for the design flaws, which occurred prior to its acquisition of Simplicity. The complaint asks the court to
(1) prohibit SFCA from selling and distributing the bassinets,
(2) requiring SFCA to hire an independent consultant to develop a product safety protocol and review all of SFCA’s product designs to ensure compliance with safety standards,
(3) recall all bassinets that used the recalled design,
(4) provide refunds to retailers who issued refunds or store credits to consumers who returned the bassinets, and
(5) to notify the public of CPSC recalls by advertising in newspapers throughout Illinois.
Separately, the Illinois attorney general challenged CPSC’s actual recall policy, which allowed manufacturers to issue repair kits as remedies, instead of offering consumers replacement products, refunds or store credits. (Illinois AG, Press Release “Madigan launches three pronged attack against deadly sleep environments for infants” www.ag.state.il/us/pressroom (10/29/08).
The Illinois AG called on CPSC to change its policy to require manufacturers and distributors to offer refunds as the sole remedy in situations like this.
The Illinois attorney general further criticized CPSC for issuing complicated and confusing recall notices, which often contain long lists of model numbers and lack model names or retailer information.
True enough, in many instances it is likely that SAGs will continue to pursue remedies for defective consumer products in state court (and, indeed the recent Illinois suit by the attorney general against SFCA was brought in state court), utilizing applicable state statutes.
In fact, the Improvement Act contemplates this and specifically states that it shall not have a preemptive effect on the SAGs, stating that “Nothing in this section ... shall be construed ... to prevent the attorney general of a state ... from exercising the powers conferred on the attorney general . . . by the laws of such state ...” (Improvement Act §218).
In many cases one would expect SAGs to be more likely to pursue suit in a state court forum with which the AG is most familiar, enforcing rules and regulations which, again, the attorney general is most familiar.
But, in states where there are no statues similar to those enforced by the CPSC, The Improvement Act’s enabling provisions may prove quite attractive to SAGs.
Manufacturers doing business on a national basis confronted with a situation in which a potential “substantial product hazard” exists, or may exist, may be wise to seek to negotiate a settlement with CPSC, to lessen the prospect of having to negotiate a settlement with an SAG whose agenda may be different from CPSC and whose interpretations, particularly of what constitutes a “substantial product hazard,” may be unique or particularly troubling.
By James W. Weller and Christopher D. Thomas, Nixon Peabody LLP
James Weller is a partner with Nixon Peabody in the firm's Jericho, N.Y., office. Christopher Thomas is a partner with the firm in the Rochester office.
All Content © 2003-2008, Portfolio Media, Inc.
Portfolio Media. Inc. | 648 Broadway, Suite 200 | New York, NY 10012 | www.law360.com
Phone: +1 212 537 6331 | Fax: +1 212 537 6371 | customerservice@portfoliomedia.com
Tuesday, December 16, 2008
HOOD LAW FIRM TAKES DEFENSE VERDICT IN IN-STORE ACCIDENT CASE
The Hood Law Firm in Charleston, South Carolina continued its success earlier this month when Molly Craig, Chilton Simmons and Tyson Nettles took a defense verdict for a large home improvement chain in an in-store serious personal injury case.
While shopping for doors in one of defendant’s stores, plaintiff began inspecting doors lying on a display rack. In the process, plaintiff pushed several doors up on their edge, and then stepped into the display without securing the doors he had pushed up. A door weighing approximately sixty pounds fell on him. Plaintiff thereafter underwent two spinal surgeries.
Initially filed in state court, Home Depot removed the case to in the United States District Court for the District of South Carolina in early July, 2006. After a little more than two years of litigation in the federal court, including substantial discovery and motion practice, the case was tried to a jury before Hon. C. Weston Houck.
At trial, Plaintiff presented evidence of substantial injuries to his spine and lower back and his herniated discs diagnosis. Plaintiff has not worked since the accident five and a half years ago and is not expected to work in the future, including for the reason that he is now addicted to pain-killing drugs.
Plaintiff’s trial exhibit list reflects plaintiff’s focus on damages (no exhibits concerning liability were evident in the docket; plaintiff’s list of trial exhibits included 39 medical records exhibits, employment information, the store’s incident report, a vocational evaluation, two x-rays and economic loss charts, but nothing other than the defendant’s own incident report concerning the liability issue).
Nevertheless, in view of the serious injuries sustained, including plaintiff’s addiction to pain-killer drugs, defendant made a substantial settlement offer but it was rejected prior to trial. After a one week trial, the jury returned a defense verdict. Plaintiff failed to prove liability, including that the display rack design was unreasonable. The Hood law firm’s costs were also awarded in the Court’s take nothing decision.
Thursday, December 11, 2008
Sandberg Phoenix Offers Training to Minority Law Firms
Sandberg Phoenix & von Gontard is offering Continuing Legal Education (CLE) opportunities for attorneys and staff members of minority law firms by extending its CLE program, “Training to New Heights,” to law firms with eight or fewer members in an effort to promote continued learning within the legal community.
“We believe we are the first private law firm to reach out to minority lawyers with CLE programs, which can be difficult to organize or expensive for a small law firm,” said Veronica L. Armouti, Co-chair of Sandberg Phoenix’s Diversity Committee.
The seminars will cover corporate practice, general litigation and specialty areas, such as medical malpractice and product liability. There also will be technology classes, such as Word, Excel and PowerPoint, offered for both attorneys and staff. All classes will be free of charge. Sandberg Phoenix is an accredited CLE sponsor for Missouri.
Sandberg Phoenix & von Gontard has 70 attorneys and offers a broad range of legal services, including representation in the areas of health law, products liability defense, business litigation, estate planning, labor and employment law, financial institution law and business transactions and counseling. The firm has offices in St. Louis, Missouri and Edwardsville and Carbondale, Illinois.
# # #
For additional information contact:
Courtney Colombo
Sandberg, Phoenix & von Gontard, P.C.
(314) 446-4359
ccolombo@spvg.com
Tuesday, November 18, 2008
GOODELL DeVRIES DEFENSE VERDICT FOR CROWN EQUIPMENT
On November 13, 2008, Thomas J. Cullen, Jr. and Constantine J. Themelis of Goodell, DeVries, Leech & Dann obtained a defense verdict on behalf of Crown Equipment Corporation in the Supreme Court of the State of New York in Suffolk County. In this case, Hutchinson, et ano. v. Crown Equipment Corporation, et al., Anthony and Denise Hutchinson sought compensatory damages on one count each of strict liability product defect, negligence and breach of implied warranty for severe crush injuries Hutchinson sustained to his left leg, knee and back in a workplace accident. Plaintiff was totally disabled for a period of years and claimed to have permanent disability allowing only 3-4 hours of productive daily work capacity in the future. Plaintiffs’ claims of defect included the alleged failure to fully enclose the operator compartment and the alleged failure to employ a second brake switch creating redundancy in the safety system of a Crown stand-up rider forklift. Crown presented expert testimony from mechanical and biomechanical engineers establishing the safety of the operator compartment design as well as the fail-safe braking system. Crown also presented expert testimony from a statistician to provide comparative analysis establishing the safety of the forklift.
After nearly five weeks of trial, the jury deliberated for less than one and a half hours before unanimously reaching a full defense verdict on both the strict liability and breach of implied warranty causes of action.
SUMMARY JUDGMENT FOR DEUTSCH KERRIGAN
Charles Leche of Deutsch, Kerrigan & Stiles represented an insurance company in a coverage matter arising from a Comprehensive General Liability (CGL) policy issued by the client. The alleged insured and a wharfinger insurer of the insured filed suit against the client CGL insurer, seeking reimbursement of $4 million which had been paid to settle an underlying maritime personal injury lawsuit. The underlying case arose out of an injury on a barge used to ship the insured's steel products. The insured was shipping its products in the barge by way of a contract of affreightment and thus the insured was not the owner or owner pro hac vice of the barge. The insured allegedly loaded the products into the barge negligently, causing the plaintiff longshoreman (not an employee of the insured) to sustain injury on the barge when the products were being unloaded. The underlying personal injury lawsuit had been brought as a tort action against the insured pursuant to Section 933 of the Longshore and Harbor Workers' Compensation Act. The insured's wharfinger insurer, which had contributed to the settlement of the underlying case, pursued its claim against the client CGL insurer based on both subrogation and assignment. The client CGL insurer had denied coverage for the personal injury claim based on watercraft and LHWCA exclusions in the CGL policy. Mr. Leche filed a motion for summary judgment based primarily on the LHWCA exclusion, demonstrating that it was not designed to exclude claims by the insured's employees, but to exclude third-party tort claims by individuals who were otherwise covered by the LHWCA. The U.S. District Court for the Eastern District of Louisiana granted the motion, dismissing the claim for coverage under the CGL policy.
Wednesday, November 12, 2008
SNELL & WILMER AND BEIRNE MAYNARD & PARSONS SUCCESSFULLY DEFEND FORD MOTOR COMPANY IN ROLLOVER CASE
Snell & Wilmer L.L.P. attorney Warren Platt and Beirne, Maynard & Parsons' attorney Sawnie McEntire recently obtained a defense verdict in favor of Ford Motor Company in Bay City, Texas in a case involving the on-road rollover of a 1996 Ford Explorer. During the rollover accident, Kenneth Mead, the husband of the driver, Sharon Mead, was ejected and subsequently died from his injuries. Sharon Mead, and their son, Scott Mead, were both also injured in the accident. Plaintiffs asked the jury to return a verdict of 40 million dollars in closing argument.
Plaintiffs claimed the vehicle was defective with respect to its rollover stability, and also claimed that Mr Mead’s seatbelt “inertially unlatched” during the accident, causing him to be ejected. The trial team presented evidence that the design of the 1996 Explorer was safe, that none of plaintiffs' proposed alternative designs would have prevented the accident or plaintiffs' injuries from occurring given the driver's steering inputs and that Mr Mead was not wearing his seat belt at the time of the accident. After deliberating for approximately three hours following a five week trial, the twelve person jury returned a verdict in Ford's favor on all claims.
THE HEARD MUSEUM RECOGNIZES SNELL & WILMER'S JOEL HOXIE AND WIFE CINDY AS HONORARY CHAIRS OF THE 2008 MOONDANCE GALA
Snell & Wilmer partner Joel Hoxie and his wife, Cindy, were named as the honorees for the Heard Museum’s 2008 Moondance Gala. Both Joel and Cindy have been actively involved in the Heard Museum for many years. Joel joined the board of trustees in 1989 and was elected a life trustee in 2005. Joel served in several leadership roles at the Heard, most notably as president of the board of trustees from 1995 through 1997. During his presidency, Joel helped lead the museum through its largest capital project since it opened its doors nearly 80 years ago, as well as the opening of the museum’s first satellite facility in North Scottsdale. Throughout his affiliation with the Heard, Joel also has served as the museum’s legal advisor. Cindy is a Las Guias docent and regularly provides tours to adults and school children throughout the museum’s galleries.
"Phoenix is a dynamic and rapidly growing city. Its citizens have come from all over the country – and the world – to make a home and a living here," remarked Joel. "Having said that, the Heard Museum, whose mission is to educate the public about the heritage and living culture and arts of the Southwest Native Peoples, is a very valuable resource to preserve and protect. It’s been an honor and a privilege for the past 20 years to help support what I consider to be Arizona’s most valuable cultural treasure."
Saturday, November 08, 2008
18 NETWORK FIRMS RECOMMENDED OR HIGHLY RECOMMENDED in 2009 EDITION OF BENCHMARK LITIGATION
So reads the inside cover of the 2009 edition of "Benchmark Litigation, The Definitive Guide to America's Leading Litigation Firms & Attorneys"
The second annual (2009) edition of Benchmark Litigation, self-described as "the definitive guide to America's leading business litigation firms and attorneys", is hot off the presses with 365 pages of analysis and commentary on most of America's leading business litigation firms and attorneys.
Jonathan McReynolds, Project Manager for the publication, said that the 2009 edition had a run of 8,000, most of which will be sent free of charge to senior in-house litigation and general counsel.
Making the list of "Recommended" or "Highly Recommended" law firms in the 2009 edition are the following Network firms:
Akerman Senterfitt -- R
Bingham McCutchen -- HR
Corr Cronin Michelson Baumgardner & Preece -- HR
Dykema -- R
Forman Perry Watkins Krutz & Tardy -- R
Gibbons -- HR
Goodell DeVries -- R
Ice Miller -- R
LeClair Ryan -- HR
Lightfoot Franklin & White -- HR
Lowenstein Sandler -- HR
Maslon Edelman Borman & Brand -- R
Moore & Van Allen -- R
Nixon Peabody -- HR
Snell & Wilmer -- HR
Thompson Hine -- HR
Wheeler Trigg & Kennedy -- R
Wildman Harold -- RIn addition, a number of Network member firm attorneys were singled out for special recognition as a "local litigation star" or a "future star".
Thursday, November 06, 2008
DYKEMA ATTORNEYS TAKE DEFENSE VERDICT IN AUTO BURN CASE
In a case involving a new 1999 GM Astro Van and 3rd degree burns over 40% of a 21-year old driver’s body, $440,000 in medical expense, and two expert witnesses for each side, Dykema trial lawyers Michael Cooney and Brittany Schultz took a defense verdict after a two week jury trial.
Plaintiff in this motor vehicle product liability case claimed that GM’s inadequate shielding of the exhaust system on a 1999 Astro Van caused an interior van fire that burned plaintiff.
GM contended that its exhaust system was adequately designed and that Plaintiff caused the fire and his injuries because he was intoxicated, fell asleep with his foot on the gas pedal, overheated the exhaust, and then failed to exit the burning vehicle.
Plaintiff demanded $10 million. The Cook County jury returned a defense verdict.
Plaintiff claimed that he was operating a three week old GM 1999 Astro Van when it backfired, stalled, and, after he tried to restart it several times, erupted in flames. Plaintiff alleged defects in the van’s engine fuel management system, exhaust system, and door locks. Plaintiff claimed the engine improperly allowed gasoline to enter and overheat the exhaust system. Plaintiff claimed that GM’s use of an aluminum, rather than steel, muffler shield and removal of two other exhaust system shields during a redesign of the Astro Van model allowed the excessive heat to ignite combustible materials inside the van. Plaintiff also alleged failure of the door lock system that prevented plaintiff from exiting the van.
GM contended that its exhaust system was adequate and that plaintiff caused the fire because he was intoxicated and fell asleep with his foot on the gas pedal of the running engine, resulting in the engine producing excessive heat that overwhelmed the exhaust system. Dykema attorneys argued that plaintiff’s intoxication prevented him from taking reasonable steps to exit the vehicle before the fire consumed the occupant compartment.
-----
Mr. Cooney's practice includes a broad variety of general civil litigation, with a focus on complex product liability, business and intellectual property litigation. He has handled numerous cases involving product liability claims with catastrophic injury and death, consumer class actions, intellectual property (patents, trademarks and trade secrets), computer hardware and software, construction disputes, profession negligence, business torts, and a variety of commercial and breach of contract matters. With a degree in engineering, his interests focus on disputes involving science and technology.
Brittany M. Schultz, a products liability attorney with Dykema's Bloomfield Hills Office, is part of the firm's Automotive Industry Team. Since joining Dykema five years ago, the litigator has helped defend automotive manufacturers and suppliers in a number of high-stakes, high-profile cases including personal injury class actions, wrongful death cases, premises liability actions, general negligence and supplier disputes.
Wednesday, November 05, 2008
BOBBY HOOD AND MOLLY CRAIG OF HOOD LAW FIRM NAMED IN "BEST LAWYERS"
"The Best Lawyers in America" named two of Hood Law Firm, LLC’s partners in its 2008 publication. Bobby Hood, Sr. was recognized in the practice areas of commercial litigation, health care law and personal injury litigation. Molly H. Craig was recognized in the health care law practice area.
WHEELER TRIGG KENNEDY VETERANS SHARE MILITARY EXPERIENCES
Originally, November 11th was proclaimed by the United States Congress as a day to be dedicated to the cause of world peace, and specifically set aside to honor veterans of World War I. In 1954, Congress amended the Act of 1938 to make November 11th a day to honor American veterans of all wars. Today, Veterans’ Day is commonly observed in honor of all veterans of military service, whether or not they served during war time. Regardless of political persuasion, there is a pervasive sentiment across the country that we are all indebted to those among us who have chosen to express their sense of patriotism and duty to their fellow citizens through military service.
Network firm Wheeler Trigg Kennedy LLP is especially grateful to the six lawyers and four staff who have given years of their lives to the military for the benefit of all of us. The six lawyers represent 24% of the firm’s 25 partners. They are all highly ethical, disciplined, hardworking, and generous individuals – traits that were surely honed in the service.
These individuals share their military experiences below. We hope you find inspiration here to examine how you might pay forward the sacrifices of our veterans, however that may be appropriate to you. For these brave men and one woman, their way of giving back was through the military. To them, and to all veterans, we say "thank you."
Following graduation from college in 1969, WTK partner John Vaught enrolled in the United States Navy Officer Candidate School in Newport, Rhode Island where he was commissioned an ensign. After advanced training, including language instruction, John was sent to Vietnam with the Naval Advisory Group. John served as a Military Assistance Command advisor with a river boat squadron at the Intermediate Support Base Cho Moi on the Mekong River. With an all-Vietnamese crew, John operated a river patrol boat on the Mekong River and searched small boat traffic to stop the flow of weapons from Cambodia into the Mekong Delta. Following his war service, John became a lieutenant and served as a department head at the United States Naval Communications Station in Italy. There he provided communication support to Southern Europe, Northern Africa, the Mediterranean, and the Sixth Fleet, including communications support during the 1973 Yom Kippur War in Israel. After being discharged from the Navy in 1975, John earned a law degree. Today, John has a successful legal practice that involves complex commercial litigation matters, including the defense of class action litigation.
After graduating from the United States Military Academy at West Point in 1974, WTK partner John Fitzpatrick ("Fitz") served in the United States Army as an airborne ranger and an artillery officer. In the late 1970s, while serving in Berlin as an artillery liaison lieutenant attached to the British Allied Regiments, Fitz guarded Rudolf Hess at Spandau Prison. A talented concert pianist, Fitz played piano for 20 Russian generals and 30 American Generals, including General Al Haig, during the annual "Meeting at the Elbe River" in Potsdam, Germany. Fitz recalls making frequent reconnaissance "visits" to East Berlin in the 1970s, when the Berlin Wall still divided the city. Following graduation from Notre Dame Law School in 1981, Fitz advanced from prosecutor to chief prosecutor at Fort Carson in Colorado Springs, Colorado. He also served in Seoul, Korea as the chief prosecutor for the Eighth Army Division. In 1986, Fitz graduated from the United States Army Judge Advocate General’s School, then served in the Army’s tort branch at the Pentagon for two years. In all, Fitz spent 14 years in active military duty. Since returning to civilian life in 1988, Fitz has developed a national reputation as the "go-to" trial lawyer for high exposure cases, primarily in matters involving product liability, toxic torts, and medical malpractice. He has tried to verdict in excess of 175 cases in 22 states and obtained defense verdicts in well over 90% of them.
WTK partner Kevin Kuhn retired as a colonel from the United States Air Force Reserves in November 2006 after 29 years of military service. The son of a World War II fighter pilot and career Air Force officer, Kevin began his military service as an Army ROTC scholarship cadet during undergraduate school at the University of Oklahoma. When he elected to transfer to his father’s branch of service following his college graduation in 1974, Kevin was commissioned as an Air Force second lieutenant. After graduating from the University of Oklahoma College of Law in 1977, Kevin spent four years as an active duty Air Force prosecutor, followed by 25 years in the Air Force Reserve Judge Advocate General’s Corps. Throughout his reservist career, he taught trial advocacy courses and legal and judicial ethics to military lawyers and judges around the country. As a civilian trial lawyer, Kevin primarily handles personal injury matters, product liability cases, medical malpractice, and other professional liability matters. He has tried over 60 jury trials and over 50 bench trials and is a sought-after speaker for continuing legal and health care professional education. Mrs. Kevin (Peggy) Kuhn, also a former military officer, retired as a lieutenant colonel from the Army Nurse Corps after serving on active duty for seven years and on reserve duty for 17 years.
A 1984 graduate of the United States Military Academy at West Point, WTK partner James Hooper continued a family tradition in which every male member of his family since the American Revolution has served in the Armed Forces of the United States. Following officer basic, airborne, and ranger training, Jim served as a tank platoon leader, scout platoon leader, executive officer, and troop commander of Troop C, First Squadron, Fourth Armored Cavalry of the First Infantry Division (Forward), patrolling the former East German and Czechoslovakian frontiers. Jim and his men completed a special tour with the Berlin Brigade, which allowed him to pass through "Checkpoint Charlie" and visit the former East Berlin, which he considers one of the most informative experiences of his life. Jim completed the Infantry Officer Advanced Course and served at Ft. Benning, Georgia before returning to civilian life and entering the University of Michigan Law School. He graduated in 1992. Following a clerkship with the U.S. Court of Appeals for the 11th Circuit and private practice with King & Spalding in Atlanta, Jim relocated to Colorado and became a WTK partner in 1998. Jim's practice concentrates on national representation of major pharmaceutical, medical device, and manufacturing companies in complex product liability litigation.
WTK partner and Lieutenant Colonel Andrew "ACE" Efaw has completed almost 20 years of service in the United States Army, ten years on active duty and ten years on reserve duty. After graduating in 1989 from the United States Military Academy at West Point as a field artillery officer, ACE became branch qualified as a civil affairs officer and served as an active-duty prosecutor for four years. ACE has degrees from the University of Pennsylvania Law School and the Judge Advocate General’s School for Military Law. From 2004 to 2005, ACE was deployed on reserve duty as the senior defense counsel for Northern Iraq. As a JAG attorney, ACE tried dozens of criminal cases, both in the U.S. and in Iraq. Currently, ACE is a reserve military judge and presides over active duty courts-martial around the country. ACE, known as Andy in civilian life, has a busy law practice focused on defending complex commercial, product liability, and franchise cases in federal and state courts. Mrs. Andrew (Amy) Efaw is also a West Point graduate and former Army officer.
The son of a career Air Force officer, WTK partner Steven Kelso served on active duty in the Air Force Judge Advocate General’s Corps from 1997 to 2004. When he graduated from the University of Colorado in May 1994, Steve had completed four years in the Air Force Reserve Officers’ Training Corps and was commissioned a second lieutenant. Steve went on to graduate from Notre Dame Law School in 1997 before entering extended active duty. He primarily served as a legal advisor to military commanders and as a military prosecutor. When he was based out of Travis Air Force Base in California, Steve served as a circuit trial counsel. In this position, then-Captain Kelso was the supervising attorney and lead trial counsel in the Air Force’s most difficult and complex cases at 17 Air Force bases in a 10-state region. He tried over 30 jury trials. After separating honorably from the Air Force in the grade of major, Steve joined WTK and later became a partner at the firm in 2008. His legal practice focuses on defending complex commercial disputes, particularly ones involving franchises.
The WTK staff members who served in the military include the following. Director of Administration Howard Jenkins enlisted in the United States Army in 1965 and served in the Vietnam War. Paralegal David Meyer served on active duty in the United States Air Force from 1985 to 1998, most extensively as a paralegal with the Judge Advocate General’s Corps. He spent an additional three years in the Air National Guard. Paralegal Keith Hanson served on active duty in the United States Army from 1979 to 1983, first in an infantry battalion in Germany and then as a paralegal with the Judge Advocate General’s Corps at Fort Carson, Colorado. He served in the Army Reserves for two years as a sergeant while completing his undergraduate degree. Legal secretary Christine Keitlen enlisted in the United States Army Reserves in 1990 and served as a medical specialist. She was honorably discharged in 2000.
Thursday, October 30, 2008
MALCOLM WHEELER RECEIVES PLAC LIFETIME ACHIEVEMENT AWARD
The Product Liability Advisory Council, Inc. (PLAC) honored Malcolm Wheeler, a partner with the civil litigation firm Wheeler Trigg Kennedy LLP, with a lifetime achievement award. PLAC is a non-profit association with over 120 corporate members representing a cross-section of American and international product manufacturers that seek to improve and reform product liability laws. Since 1983 PLAC has filed over 800 amicus curiae briefs in both state and federal courts presenting the broad perspective of product manufacturers seeking fairness and balance in the application and development of the law as it affects product liability. Mr. Wheeler was recognized for his many trial, appellate, speaking, and writing contributions to PLAC’s advocacy work on behalf of product manufacturers.
Mr. Wheeler’s practice focuses on large and complex business litigation and product liability litigation, especially nationwide pattern litigation, class actions, and major appeals. He has defended manufacturers in several highly publicized cases, including the Pinto criminal prosecution, the damages phase of the Kearns windshield-wiper patent case, the first "no airbag" case tried to verdict, the first defective airbag case tried to verdict, and numerous cases in the medical device, pharmaceutical, chemical, automotive, and appliance industries. He has briefed and argued cases in the United States Supreme Court, United States Courts of Appeals, and state appellate courts throughout the country.
A Fellow in the American College of Trial Lawyers, Mr. Wheeler is listed in Chambers USA 2008 as one of the top handful of product liability lawyers nationwide, in The Best Lawyers in America 2009 for product liability defense and personal injury defense, and in Colorado Super Lawyers 2008 as one of the top ten lawyers in Colorado.
EIGHT WHEELER TRIGG KENNEDY ATTORNEYS NAMED "BEST LAWYERS"
The Best Lawyers in America® named eight of Wheeler Trigg Kennedy LLP’s 25 partners to its 2009 list. Two of the eight were recognized as the best in four or more practice areas. John Fitzpatrick was recognized in five practice areas: mass tort litigation, medical malpractice law, personal injury litigation, product liability litigation, and professional malpractice law. Michael O’Donnell was recognized in four practice areas: commercial litigation, legal malpractice law, product liability litigation, and personal injury litigation. Other WTK lawyers to be recognized as Best Lawyers include: Malcolm Wheeler for product liability litigation and personal injury litigation; Jack Trigg for commercial litigation and product liability litigation; John Vaught for insurance law; Kevin Kuhn for medical malpractice law; Raymond Martin for labor and employment law; and Hugh Gottschalk for commercial litigation.
HOOD LAW FIRM WINS DEFENSE VERDICT FOR OB/GYN
On October 23, 2008, the Hood Law Firm trial team of Robert H. Hood, Sr., Jamie Hood and Diedra Wilson Hightower obtained a defense verdict for a local OB/Gyn and his practice in Richland County, South Carolina. The Plaintiff was a pre-natal patient of the OB/Gyn practice during 2002 and was admitted to the Co-defendant hospital on March 7, 2003 due to leaking amniotic fluid where labor was induced. The Defendant doctor discussed a possible C-section but plaintiff alleged that he did not discuss the risks of overstimulation of the uterus. Pitocin was continued and Plaintiff alleged the fetal monitoring strips were non-reassuring but the nursing staff did not notify the doctor. The doctor recalls reviewing the strips at 11:20 pm at which time they were normal. The strips showed an abnormality (uterus ruptured) shortly after midnight and the doctor arrived several minutes after being called by the nurses. The baby was delivered via C-section within twenty minutes and a hysterectomy was not required. The Plaintiffs asserted through their expert testimony that the doctor was negligent in delaying the decision to perform a C-section and delaying the performance of the C-section. Further, the Plaintiffs allege the nurses at the hospital failed to timely notify the doctor of the Plaintiff’s changed condition which resulted in a delayed delivery causing brain damage. The cause of the baby’s developmental delays was disputed. The Defendants made no settlement offers to the Plaintiff and after a two week trial, the jury returned a defense verdict.
Monday, October 27, 2008
UNDERSTANDING THE CURRENT CREDIT CRISIS:
The Funds, Financial Vehicles, Assets and Disputes
A free 90-minute lunchtime Credit Crisis Webinar presenting an overview of the credit crisis and current issues.
Given the current state of the capital markets and the worldwide financial meltdown, it is critical that fund managers, institutional investors, pensions, endowments, and anyone with an investment in or oversight of alternative investment vehicles have a working knowledge of these issues. There is no tuition charge for this webinar.
Topics to include:
The size and scope of the credit derivatives market
The role of hedge funds in the capital markets
The reasons behind the present lack of liquidity
Disputes over redemption and valuation
The role of credit default swaps in the seizing-up of the credit markets
The inevitability (and likely structure) of regulation over alternative
investment vehicles
Friday, October 31, 2008
11:00 a.m. - 12:30 p.m. Eastern Standard Time
Speakers:
Jonathan Sablone and Timothy W. Mungovan
RSVP:
Please RSVP to sbenway@nixonpeabody.com by October 29, 2008 or contact Steve Benway at 617-345-1124. Registration and dial-in information will be sent out after your RSVP is received.
CLE credit: This program is approved in California, New York, and Rhode Island (1.5 general or professional practice credit). Per New York State rules, this program is approved for experienced attorneys only. For all other jurisdictions, please note that state MCLE boards have the final authority on the acceptance and of granting CLE credit for individual courses; we will do everything that we can to ensure that each jurisdiction's requirements are met when seeking approval for this program. We will provide attendees with the necessary CLE forms post-program. All CLE requests will be handled retroactively.
Monday, October 20, 2008
SNELL & WILMER OPENS OFFICE IN MEXICO
Snell & Wilmer L.L.P. announced it has opened an office in Los Cabos, Mexico. The office marks the Firm’s seventh location, and its first outside of the United States. With this announcement, Snell & Wilmer becomes the first United States-based law firm with a presence in Baja California Sur.
The office is anchored by attorneys Richard Krumbein and Carlos Sugich, with the support of Curt Reimann and Jon Frank, partners in Snell & Wilmer’s Tucson and Phoenix, Arizona offices respectively. The group will focus on providing a wide range of transactional and regulatory work to national and international businesses with interests throughout Baja and northern Mexico. As the office expands, it will draw upon the resources of the Firm’s over 400 attorneys practicing across the western United States.
Snell & Wilmer's vision for office expansion is to build upon its existing presence throughout the western United States, and to carefully evaluate opportunities that arise in other regions. Mexico continues to emerge as a key player within the global economy. An increasing number of United States companies are establishing operations in this growing marketplace. At the same time, a significant number of enterprises within Mexico are expanding their international business reach. The climate and beaches across Baja and northern Mexico have turned those regions into an increasingly popular destination and focus of international economic development activity, especially from United States-based companies and investors. Active real estate, resort development, and infrastructure enhancement activities make the region a promising market for Snell & Wilmer.
The address of Snell & Wilmer’s Mexico office is:
Snell & Wilmer de Mexico S. de R.L. de C.V.
Plaza Las Velas, Suite 113
Paseo San Jose S/N entre Paseo del Estero
Zona Comercial Fonatur
San Jose del Cabo, B.C.S.
Mexico, C.P. 23400
Thursday, October 09, 2008
THE NETWORK OF TRIAL LAW FIRMS' LITIGATION MANAGEMENT SUPERCOURSE
"ROCK-SOLID LITIGATION MANAGEMENT"
October 30 - November 2, 2008
In-house general counsel and senior litigation managers will attend two days of cutting-edge litigation management CLE provided by The Network of Trial Law Firms next month at our 45th Litigation Management Supercourse. This Fall's program will take place at the Boulders Resort and Golden Door Spa in Carefree, AZ (Near Scottsdale.)
Comments from past attendees include:
"Excellent presentations. The 20-minute time frame keeps them substantive, tight and to the point. The morning just flew -- yesterday and today."
"Excellent panel!!"
"A very good program. Every presentation was top-notch. The level of expertise is highly impressive."
"Excellent panel on counsel selection."
"Very insightful comments from all your speakers in fast-moving format."
"The class action presentation was first rate."
"Very good program and speakers."
"Another great program - lots of useful information in an entertaining style."
"Technology was terrific - even better than before."
"Written materials on CD is also very helpful."
"Counsel selection panel was a great session. Excellent break-out session on litigation management. Chairs did a great job."
"Excellent day of CLE. Very informative and interesting. Quite a lot of information that will be useful in my practice for my employer."
"Excellent topics and presentations as usual. It's good to be back."
"Best presentation I've seen in e-discovery."
"A very good collection of presentations -- Thank You!"
"Panel discussion on partnership management of important litigation was superlative - I wanted more."
"Hope to see more in the future."
Network chair, David Harris, a senior litigation partner at Lowenstein Sandler in New Jersey, said "this program continues the Network's 15-year history of delivering highly entertaining cutting-edge CLE programming in the litigation management area."
Warren Platt, Network vice chair, and a senior litigation partner at Snell & Wilmer in Arizona, noted that the topics are varied, focused and decidedly to-the-point, each speaker limited to 20 minutes. "If a trial lawyer can't make his/her point in that time, he/she ought to consider another field."
Long ago the Network moved to concise rapid-fire speaking slots accompanied by heavy use of demonstratives and PowerPoint slides to get a lot of information across in a limited time. "The audience, most of which is pretty sophisticated, likes it better and appreciates the respect shown for the commitment they make of their time to attend," said Tony White, a senior litigation partner at Thompson Hine in Ohio and vice-chair elect of the Network.
Attorneys interested in attending are invited to contact any attorney at one of our 24 member law firms, or contact Ellis Mirsky, General Counsel and Executive Director of the Network.
For the agenda, speakers and other details, see the
Network's website.
Wednesday, October 08, 2008
MIKE O’DONNELL NAMED NEW COLORADO CHAIR OF AMERICAN COLLEGE OF TRIAL LAWYERS
Michael O’Donnell, chairman of the Denver litigation firm Wheeler Trigg Kennedy, was named Chairman of the Colorado State Committee of the American College of Trial Lawyers, effective October 1, 2008. Widely considered to be the premier professional trial organization in America since it was founded in 1950, the ACTL is composed of the best U.S. and Canadian trial lawyers who are dedicated to maintaining and improving the standards of trial practice, the administration of justice, and the ethics of the profession.
Mr. O'Donnell is listed in The Best Lawyers in America in four litigation categories, was voted one of the top ten lawyers in Colorado in 2007 by Colorado Super Lawyers, and was recently recognized for his competency and professionalism by the Colorado Trial Lawyers Association, only the seventh time in its 55-year history that this plaintiffs’ bar association has given such an award to a defense lawyer.
Tuesday, October 07, 2008
NETWORK CHAIR DAVID HARRIS HONORED WITH DOUGLAS EAKELEY AWARD BY VOLUNTEER LAWYERS FOR JUSTICE
Tuesday night, October 3, 2008, Network chair and Lowenstein Sandler senior litigation partner David L. Harris was honored with the Douglas Eakeley award (for more on Douglas Eakeley, see
here) by
Volunteer Lawyers for Justice, a non-profit organization channeling the efforts of more than 1,000 volunteer lawyers and others to bring access to the judicial system to those who would not otherwise be able to afford to pay.
From David Harris:
"As the former president of the Board of Trustees of the American Civil Liberties Union of New Jersey (ACLU-NJ), I have seen this organization go through difficult periods, but always overcome them. Having presided during some of those troubled times, what I remember most profoundly, and am reminded of nearly everyday, is the ACLU's unwavering dedication to freedom.
"When the First Amendment is your client, it brings you the good, the bad and the ugly. It isn’t easy to advocate for freedom of speech when the reprehensible and the despicable want to spew hate. Labels like “reprehensible” have been attached to many people throughout our history, including African Americans, women, socialists, libertarians, communists, Native Americans, various religious groups, gays and lesbians, white supremacists, black Muslims, and countless others.
"The ACLU is True North. It remains constantly vigilant enduring ridicule and condemnation. No matter how violent the storms, it remains true to its mission. For that reason, I am proud of my affiliation with and my support of the ACLU. In my view, our nation needs the ACLU’s vigilance in both good times and bad."
(David Harris served as president of the ACLU-NJ from 1995-1998. He is currently a member of the firm Lowenstein Sandler where, among other distinctions, he chaired the firm's Pro Bono Committee from 1991-2001. He also chaired the Volunteer Lawyers for Justice of Essex County from 1999-2001. Most recently, Harris, along with several others, have started the ACLU-NJ Amicus Club to organize a cadre of attorneys to support ACLU initiatives and provide education about civil liberties issues and legal representation for important cases).
Profile in Liberty: David Harris ACLU Civil Liberties Reporter, April 2008
About Volunteer Lawyers for Justice:
VLJ was established in 2001 by a small group of attorneys in New Jersey concerned about the limited availability of free legal resources to the poor. Since its inception, VLJ has grown from a program of 30 volunteers to an organization boasting over 1,000 volunteer lawyers, paralegals, law students and others who have donated their time and expertise to thousands of clients with almost every civil legal issue.
VLJ is a New Jersey Supreme Court approved legal services provider which allows attorneys who provide 25 hours of pro bono assistance through VLJ to claim an exemption from mandatory pro bono assignments. VLJ offers an array of volunteer opportunities, as well as services, to assist volunteers in their work, such as: professional liability coverage; training; mentors; model forms and pleadings; and the pro bono assistance of translators, experts and other service providers.
VLJ has won numerous awards for its programs, including the 2007 New Jersey State Bar Association’s Pro Bono Award which it shares with all of its dedicated volunteers, funders and community partners working toward equal justice for all.
Volunteer Lawyers for Justice seeks to improve the lives of economically disadvantaged adults, children and families in New Jersey by empowering them with tools, advice and pro bono representation with the goal of securing fair and equal treatment within the legal system.
Monday, September 29, 2008
HOOD LAW FIRM OBTAINS DEFENSE VERDICT IN PRODUCT LIABILITY TRIAL
The team at the Hood Law Firm, LLC of Charleston, South Carolina has continued their success with another big defense verdict. On September 18, 2008, the trial team of Robert (Bobby) H. Hood, Bobby Hood, Jr. and Jamie Hood, along with their local counsel Marianne J. Gilmartin, obtained a defense verdict in an electrocution case for a seller of aerial lift trucks. The case was tried before the Honorable Robert A. Mazzoni in Lackawanna County, Scranton, Pennsylvania. The Plaintiff was represented by Melissa A. Scartelli of the Scartelli law firm of Scranton, PA. The Plaintiff was a 39 year old tree trimmer employed by Asplundh Tree Service, Inc. on April 18, 2002, the Plaintiff was operating an aerial lift and trimming tree branches from electric lines along a rural highway. Mr. Hartman sustained life threatening injuries when he came in contact with the electric lines, and he claimed that the aerial lift in which he was operating suddenly, without warning made an unexpected move propelling him into contact with the wires. The Plaintiff put up testimony of damages in excess of $15 million related to the repeated electrical injuries sustained as the Plaintiff completed the electrical circuit numerous times. The team was able to prove that the aerial lift did not cause the electrical contact and that the electrical contact was a result of operator error.
The Defendant made no settlement offers to the Plaintiff and after a two week trial, the jury returned a defense verdict.
SNELL & WILMER WINS JURY VERDICT OF $269.5 MILLION FOR FIRM CLIENT
Meritage Homes Corporation, a leading U.S. homebuilder, was awarded $269.5 million last Thursday, in a unanimous jury verdict in Federal District Court in Phoenix. Meritage, represented during the four years litigation and a three-week trial by Dan Goldfine of Snell & Wilmer, filed the lawsuit against Greg Hancock, a former division president of Meritage Homes. Hancock is the current owner of Phoenix homebuilder Hancock Communities.
In 2001, Mr. Hancock sold his homebuilding business to Meritage, at which time he concurrently entered into an employment agreement with the Company. The jury found that Mr. Hancock breached contractual and fiduciary duties owed to Meritage and that he immediately began to commit fraud against the Company by engaging in side businesses that stole corporate opportunities and goodwill belonging to the Company while he was President of Meritage's Phoenix division.
Finding unanimously on all nine counts, the jury awarded Meritage total compensatory damages of $215.5 million and punitive damages of $54 million. The Court's official judgment has not been entered and it is possible that the amount of the judgment may differ from the verdict.
Steve Hilton, chief executive officer of Meritage said, "We are pleased with the verdict which favorably addressed all nine claims asserted by the Company. We believe this was a well-reasoned and thoughtful verdict after a three week trial. This is a victory for our shareholders and employees."
Tim White, executive vice president and general counsel for Meritage, added, "This jury verdict sends a clear signal to Mr. Hancock and corporate officers in general that malfeasance and undisclosed self-dealing by officers of public companies will not be tolerated."
Monday, September 22, 2008
LECLAIR RYAN LITIGATION TEAM ACHEIVES LANDMARK FIRST AMENDMENT VICTORY
In a rare rehearing and reversal of an earlier decision of the Virginia Supreme Court in the same case, LeClairRyan attorneys Tom Wolf and Joe Rainsbury prevailed on First Amendment grounds in overturning a white collar criminal conviction.
After being sentenced to nine years in prison, under Virginia's anti-spam statute, for sending anonymous commercial email, Jeremy Jaynes hired Wolf to handle his appeal. Wolf and Rainsbury asserted several grounds for reversal, including that the statute is unconstitutional because it unnecessarily criminalizes the sending of anonymous non-commercial email. The Court of Appeals rejected this argument, and so did the Virginia Supreme Court in a 4-3 decision on February 29, 2008. The court then granted a petition to rehear the First Amendment argument. On September 12, 2008, the Virginia Supreme Court unanimously reversed its earlier ruling and invalidated the statute under which Jaynes was convicted. The court held that Virginia's anti-spam statute violates the First Amendment because it regulates the content of speech and is broader than necessary to achieve the compelling state interest of stopping anonymous commercial spam. As a result, Jaynes will not have to serve his nine year sentence.
Friday, September 19, 2008
ANOTHER DEFENSE VERDICT FOR HOOD LAW FIRM
The trial team of Molly H. Craig, Jamie Hood and Elizabeth Ballentine of the Hood Law Firm (Charleston, SC) obtained a defense verdict for a local colorectal surgeon and his practice. The case was tried before the Honorable Larry Patterson in Greenville County, South Carolina. The Plaintiff was represented by the law firm of Parham, Smith & Dodson, LLC of Greenville, South Carolina. The Plaintiff underwent an overlapping sphincteroplasty for complaints of fecal incontinence. She underwent surgery in December 2006 and the operating physician wrote an order for the covering physician to remove the packing inserted at the surgical site. The Defendant was the covering physician who changed the order for the nurse to remove the packing. The Plaintiff was discharged with the packing still in place and the foreign body was removed by the operating physician six days after discharge from the hospital. Plaintiff alleged the foreign body caused an infection which resulted in a failed surgical procedure. The Plaintiff alleged the failed repair resulted in complete incontinence to stool and flatus, and severe emotional problems. The Plaintiff had a subsequent sphincteroplasty at the Cleveland Clinic which was deemed successful although she still experiences flatal incontinence on a daily basis and incontinence to stool once to twice a week.
The Defendants made no settlement offers to the Plaintiff and after a one week trial, the jury returned a defense verdict.
Thursday, September 18, 2008
CORR CRONIN PARTNERS SELECTED AS THE BEST LAWYERS IN AMERICA AGAIN
Corr Cronin Michelson Baumgardner & Preece LLP is pleased to announce that Kelly Corr, Bill Cronin, Kevin Baumgardner, Josh Preece and Randy Squires have once again been selected by their peers for inclusion in the 2009 Edition of The Best Lawyers in America. Kelly was picked for three specialties: Bet-the-company litigation, commercial litigation and personal injury litigation; Bill, Kevin, Josh and Randy were each selected for commercial litigation. The firm was ranked #1 in both Seattle and Washington State for "Bet the Company" Litigation.
Wednesday, September 17, 2008
FIVE SANDBERG PHOENIX LAWYERS SELECTED AS THE BEST LAWYERS IN AMERICA FOR 2009
The following attorneys from Sandberg, Phoenix & von Gontard (St. Louis, MO) have been selected to be included in The Best Lawyers in America for 2009: Kenneth W. Bean has been named in the areas of Health Care Law, Medical Malpractice Law and Personal Injury Litigation. G. Keith Phoenix has been named in the areas of Commercial Litigation, Medical Malpractice Law, Personal Injury Litigation and Product Liability Litigation. Jonathan Ries has been named in the areas of Medical Malpractice Law and Product Liability Litigation. John S. Sandberg has been named in the areas of Personal Injury Litigation and Product Liability Litigation. Peter von Gontard has been named in the areas of Medical Malpractice Law, Personal Injury Litigation and Product Liability Litigation.
Monday, September 15, 2008
NETWORK OF TRIAL LAW FIRMS' MANAGER OF OPERATIONS EDD SCHILLAY FEATURED AS A (LONG ISLAND) "SOUND PERSON" IN SEPTEMBER 2008 ISSUE OF WINDCHECK MAGAZINE
During the Northeast's warmer months, and when not working at the Network, Manager of Operations and MCLE Administrator Edd Schillay can be found on the water racing his C&C sloop and managing the Eastchester Bay Yacht Racing Association (EBYRA) as its Commodore. The September 2008 issue of WindCheck Magazine features an article about Edd and his experiences organizing and participating in what has been called Long Island Sound's most competitive yacht racing regatta series.
"The world of yacht racing would be a better place with fewer bickering rich guys and more people like Edd Schillay. A resident of Yonkers, NY, Edd embodies what racing is all about - having fun.
"Edd's boat is named the Starship Enterprise, and like her Gene Roddenberry-created namesake, she's designated NCC-1701-B (and her sail number is 1701). 'It's the third ship to carry the name,' he explains. 'The first was a Laser and the second was the 34. I have people who have been with me for eight, ten or twelve years or more, but I also have others in their first or second year. This is the kind of sport where, if we don't get new people into it, it will eventually die. I've always taken it upon myself to welcome beginners and train new people, and my hope is that they'll get into it so much that they'll either stick with me, work up to better boats or perhaps even buy boats of their own... we all have to do it. It becomes a little bit less about competitiveness and more about keeping the sport going.'
"With sailors like Edd at the helm of organizations like the EBYRA, racing on the Sound will undoubtedly 'live long and prosper.'"
The full article can be found here.
Thursday, September 11, 2008
FORMAN PERRY PREVAILS IN BENZENE CASE
Tim Gray of Forman Perry Watkins Krutz & Tardy recently obtained the dismissal of a benzene case against a defendant which supplied benzene to a product manufacturer. Plaintiffs alleged that benzene in the product caused the decedents' myelodysplasia, resulting in his death.
After deposing Plaintiffs' dose expert, a Daubert hearing was conducted in Roswell, New Mexico. The hearings included the plaintiffs' expert by deposition and the live presentation of defendants' expert. After a full day of hearing testimony and argument, the Court excluded the Plaintiffs' expert and dismissed the Plaintiffs' case.
Thursday, August 28, 2008
EMPLOYMENT-CASE VICTORY FOR NIXON PEABODY TEAM
Nixon Peabody Rochester litigation partner David Tennant and his appellate team of Buffalo litigation associates Ben Dwyer and Tracey Ehlers (all members of the Products Group) recently secured an outright victory in the New York State Appellate Division (Second Department) on a breach of employment case. The favorable appellate ruling means our client, Laura Candela, is now owed approximately $6.6 million by Byron Chemical, her employer.
The August 12 ruling upheld a plaintiff’s verdict obtained in 2006 by Long Island partner and Products Practice Group Leader Joe Ortego after a six-week trial. Joe and his trial team had convinced a New York Supreme Court Commercial Division judge that our client was entitled to $5.64 million in additional compensation under her executive employment agreement with Byron Chemical. The dispute arose after the principal owner of Byron Chemical died, and our client discovered that the owner had concealed income through layers of "cooked" books. Our client demanded that her bonus be recalculated based on actual earnings. The NP trial team offered evidence of tax fraud, including the complicity of the company’s long-time accountant and lawyer. On appeal, Bryon Chemical unsuccessfully claimed various errors including misapplication of the Dead Man’s Statute, which was applied since the principal owner was deceased.
Monday, August 25, 2008
EIGHT ATTORNEYS OF GOODELL DEVRIES RANKED AS BEST LAWYERS
The 2009 edition of The Best Lawyers in America recognizes eight attorneys at Goodell, DeVries, Leech & Dann, LLP (GDLD). Managing Partner Linda S. Woolf was honored as a Best Lawyer in the area of Commercial Litigation. Charles P. Goodell, Jr. was selected as a Best Lawyer, again, in the area of Mass Tort Litigation.
Four GDLD attorneys are consecutive honorees in the area of Medical Malpractice Law: Donald L. DeVries, Jr., Amy B. Heinrich, Craig B. Merkle, and Susan T. Preston. Mr. DeVries was also recognized in the area of Personal Injury Litigation. Jeffrey J. Hines was selected again this year as a Best Lawyer in the area of Legal Malpractice Law. Sidney G. Leech was recognized again this year for the practice of Commercial Litigation and Personal Injury Litigation.
Wednesday, August 13, 2008
CORR CRONIN PREVAILS IN AKZO NOBEL PAINT FUMES CASE
When an employee working at a paint mixing facility sued Akzo Nobel for personal injuries alleged to have been caused by exposure to solvents and toluene at the plant, Akzo’s attorneys Bill Walsh and Seann Colgan of Corr, Cronin, Michelson, Baumgardner & Preece deposed plaintiff’s experts and brought a Frye motion to preclude all three of plaintiff's experts from testifying on causation. Following two hours of oral argument, Akzo’s motion to disqualify the experts was granted. The plaintiff was pregnant at the time and her baby was born with brain damage and physical deformities. Plaintiffs' last settlement demand was for $19 million. An order dismissing the case is expected to be issued soon.
TWENTY FIVE MOORE & VAN ALLEN ATTORNEYS NAMED NC SUPER LAWYERS
Moore & Van Allen is pleased to announce that 25 of its attorneys have been named North Carolina Super Lawyers for 2008.
The list is compiled by the attorney-led research staff at Law & Politics through the balloting of 14,000 active North Carolina attorneys. Only 5 percent of the state’s attorneys are selected as North Carolina Super Lawyers.
Moore & Van Allen attorneys named North Carolina Super Lawyers for 2008 are:
James H. Clarke: Business/Corporate
Daniel G. Clodfelter: Bankruptcy & Creditor/Debtor Rights
J. Thomas Dunn, Jr.: Banking
David L. Eades: Bankruptcy & Creditor/Debtor Rights
Edward L. Embree, III: Family Law
David E. Fox: General Litigation
Jeffrey W. Glenney: Real Estate
George V. Hanna, III: Business Litigation
W.B. Hawfield, Jr.: Business/Corporate
Stephen D. Hope: Mergers & Acquisitions
James W. Hovis: Banking
Joseph D. Joyner, Jr.: Tax
William O. King: General Litigation
Anthony T. Lathrop: Business Litigation
Hal A. Levinson: Mergers & Acquisitions
Dickson M. Lupo: Intellectual Property Litigation
Neill G. McBryde: Estate Planning & Probate
James P. McLoughlin, Jr.: Business Litigation
Gregory J. Murphy: Business Litigation
J. Christoper Oates: Real Estate
Randel E. Phillips: Employment & Labor
T. Edmund Rast: Real Estate
Ernest W. Reigel: Business/Corporate
Scott M. Tyler: General Litigation
Reich L. Welborn: Business/Corporate
Wednesday, August 06, 2008
Goodell Firm Wins SJ for Medical Product Maker on Preemption
Richard M. Barnes and Michele R. Kendus of Goodell, DeVries, Leech & Dann, LLP won a summary judgment in a medical product liability case before Federal Judge Benson Legg of Maryland. Plaintiff claimed injury from a dermal (skin) filler used in cosmetic procedures to reduce wrinkles. Her claims included violation of the Maryland Consumer Protection Act.
The Goodell firm argued that plaintiff alleged failure to warn, and that Federal Preemption barred such claims because the product and its warning label had been approved by the Food and Drug Administration (FDA) in accordance with the pre-market approval (PMA) process under the Medical Device Amendments of 1976. The defense also argued that the warning label provided with the product was adequate as a matter of law, and that the plaintiff failed to meet her burden, under the Learned Intermediary Doctrine, to prove that an alternative warning would have altered her physician's decision to inject the product.
Following oral argument on all of the issues, the Court issued a ten-page unpublished opinion awarding summary judgment. The Court agreed with the defense arguments that all of the plaintiff's claims sounded in failure to warn, and that all such claims were pre-empted because the product had undergone rigorous review by the FDA in accordance with the PMA process. The Court also commented in its opinion that even if the plaintiff's claims were not pre-empted, the available warning was adequate as a matter of law.
Thursday, July 31, 2008
"Litigation Management in a New York Minute"
presented by
The Network of Trial Law Firms, Inc.
www.TRIAL.COM
at
The House of
The Association of the Bar of the City of New York*
(NKA City Bar Building)
42 W. 44th Street
New York City
Friday, August 1, 2008
Build It and They Will Come: Fast-moving 18-minute staccato presentations, powerful videos, interactive working-lunch break-out sessions on a variety of hot topics, and 20 real defense trial lawyers speaking from experience in an historic mid-town venue with tremendous capacity mark this seventh annual litigation management CLE program -- one that many regard as the best CLE they've ever attended.
To show it, in-house counsel are voting with the feet. Some 250 are registered together with 50 U.S. and Canada trial lawyers for Friday's program, always free to in-house counsel.
A Typical Working-Lunch Break-out SessionCan't make it to the program? No problem. The Network delivers
CLE 24/7 on-line as streaming video CLE, also without charge to in-house counsel, and only a nominal charge for others. Or
email us and we'll send you our materials (free, of course).
Haven't registered yet? The program is at capacity and will be SRO (if you can find a place to stand).
Email us and we'll send you our materials (free, of course).
Any questions, please call us at 914-332-4400.
----------
*The Network of Trial Law Firms, Inc. is a not-for-profit association of 24 law firms with 110 offices and more than 7,000 attorneys in the U.S., Canada and overseas. The Network has for 15 years produced cutting-edge litigation management continuing legal education and is not affiliated with The Association of the Bar of the City of New York.
Tuesday, July 29, 2008
GREAT LITIGATION RESULTS FROM LIGHTFOOT FRANKLIN & WHITE
Defense Verdict in Wrongful Death Case
After a two week trial, a Marshall County, Alabama jury returned a defense verdict in favor of CNH America on all counts in a wrongful death action. The plaintiff asked the jury to return a verdict of $21 million. The plaintiff’s husband was killed in 2005 as the result of an inadvertent activation of the boom swing on a Case model loader backhoe. Plaintiff alleged that the loader backhoe was defectively designed and also asserted claims for negligence, wantonness, breach of warranty and failure to warn. Lightfoot attorneys J. Chandler Bailey and William H. Brooks assisted with the defense at trial.
Defense Verdict for Louisville Ladder
Partner Adam Peck, along with Bob Fulton of Tampa, obtained a defense verdict for Louisville Ladder in the Middle District of Florida, Tampa Division. The case was bifurcated so only liability was being tried. Had liability been found, the plaintiff was going to seek approximately $1,950,000 in past and future medicals, $714,000 in past and future lost wages, plus pain and suffering, in a subsequent damages only trial. The plaintiff claimed he was standing on a Louisville Ladder Davidson brand wood ladder when it suddenly collapsed, causing him to fall and suffer head injury. The plaintiff tried to prove that the wood in the ladder had been improperly dried and that the improper drying had resulted in a loss of strength in the wood of the ladder. Louisville Ladder proved that there was no problem with the wood in the ladder, but rather the accident was caused by the plaintiff tipping the ladder over and impacting the side of the ladder, causing the damage to the ladder.
Alabama Supreme Court Affirms Order Compelling Arbitration Between State and Tobacco Product Manufacturers
On March 28, 2008 a unanimous Alabama Supreme Court affirmed an order of the Montgomery County circuit court compelling the State of Alabama to arbitrate a dispute over the amount owed to the State by tobacco product manufacturers for 2003. In 1998, the State of Alabama and 45 other states entered into a Master Settlement Agreement with four major tobacco product manufacturers that was later joined in by several smaller manufacturers. The MSA arose out of lawsuits filed by the states seeking to recover healthcare costs for smoking related illnesses. The MSA requires each manufacturer to make annual payments to the states. A dispute arose over the proper amount payable for 2003 and the manufacturers moved the Montgomery County circuit court to compel the State to arbitrate the dispute. The State opposed the motion arguing that certain issues were not covered under the arbitration clause in the MSA or, alternatively, that those issues should be arbitrated in an Alabama-only proceeding. The circuit court granted the manufacturers’ motion and rejected the State’s request for a local arbitration. The State appealed and the Alabama Supreme Court affirmed the circuit court’s decision regarding the arbitration issues. Lightfoot attorneys Samuel H. Franklin and William H. Brooks represented Lorillard Tobacco Co., Inc. and R.J. Reynolds Tobacco Company in the matter.
Defense Verdict in Life Insurance Contract Case
Represented by Lightfoot attorneys, Jefferson-Pilot Life Insurance Company (now The Lincoln National Life Insurance Company) won a defense verdict in its first ever jury trial involving allegations of fraud and breach of contract relating to the sale of a universal life insurance policy. The case tried for five days Colbert County, Alabama. The Lightfoot trial team proved to the jury that Jefferson-Pilot's documents and its agent fully and adequately informed the policy owner how the policy would perform over time and that the policy was not guaranteed to stay in force until its maturity date. The plaintiff asked the jury to award more than $300,000 in compensatory damages, plus punitive damages as well. After a mere 40 minutes of deliberation, the jury returned a verdict for Jefferson-Pilot. Lightfoot attorneys Wynn Shuford and John G. ("JT") Thompson, Jr. handled the case.
Victory for the State of Alabama in 18 Year Water War
Lightfoot attorneys Buddy Cox, Larkin Radney, Nikaa Jordan and Haley Andrews, along with attorneys at Bradley Arant Rose & White, secured a victory on behalf of the state of Alabama in its 18 year water war with the state of Georgia. The United States Court of Appeals in Washington today ruled that a secret settlement agreement entered into between Georgia, the Corps of Engineers, and Atlanta-area water users is illegal under federal law. The agreement, which was signed in 2003, would have allocated nearly 25% of Lake Lanier, a federal reservoir on the Chattahoochee River, for Atlanta’s water supply. This would have resulted in major reductions in water reaching Alabama downstream. In 1990, the State of Alabama challenged the practices of the Corps of Engineers to elevate Atlanta’s water supply needs over downstream interests in Alabama. In its ruling today, the appellate court has agreed that Alabama is correct.
Defense Verdict for Ford Motor Company in Wrongful Death Case
Three attorneys from Lightfoot recently secured a defense verdict for Ford Motor Company in a wrongful death case pending in Henry County, Alabama. Lightfoot attorneys Harlan Prater, Chandler Bailey and Henry Gimenez, along with Hamp Baxley from Dothan, Alabama, defended claims that the 2000 Ford Expedition contained a defective seat belt system and side door glass. Plaintiff alleged that the combination of the allegedly defective seat belt and door glass caused the ejection and death of one of the vehicle's occupants during a rollover accident in South Alabama in December of 2000. Ford demonstrated that the Expedition's seat belt system was reasonably safe and, had it been used in this accident, would have prevented the tragic injuries. Ford further proved that the side door glass was a good design and that any reasonable alternative glass would not have performed any better in this severe multiple rollover accident. Following a week and a half of trial, plaintiff asked the jury for up to 7 million dollars in damages. After deliberating for less than two hours, the jury returned a defense verdict in favor of Ford. The plaintiff was represented by the Beasley, Allen firm out of Montgomery, Alabama.
DEUTSCH KERRIGAN VICTORIES IN LEGAL MALPRACTICE AND RACE DISCRIMINATION CASES
Joanne Rinardo and Nancy Marshall represented a prominent divorce attorney against claims of RICO violations as well as state law claims of breach of contract, malpractice and intentional infliction of emotional distress. The Plaintiffs alleged that the defendant's business practices were, in essence, criminal, and sought treble damages, compensatory damages, and attorneys fees totaling over $100,000. Rinardo and Marshall filed a Rule 12(b)(6) Motion to Dismiss all claims which was orally argued by Ms. Rinardo before Judge Barbier. After two hours of argument, the Judge ruled from the bench dismissing all claims against the defendants.
Joanne Rinardo and Tre' Roux represented an insurance company whose insured was a daiquiris shop being sued for $4 million. Thirteen plaintiffs filed a constitutional claim that they had been discriminated against in violation of federal and state public accommodations laws, and also alleged intentional infliction of emotional distress. Specifically, the plaintiffs argued that they had been ejected from the shop because of their race and not, as the daiquiri shop claimed, because of their failure to comply with posted policy. Rinardo and Roux filed a Motion for Summary Judgment arguing the claim was filed prematurely, as it had not yet gone to the appropriate state agency. At a settlement conference on June 3, 2008, with both a Rule 12(b)(6) Motion and Motion for Summary Judgment pending, the plaintiffs significantly reduced their demand, but the daiquiri shop refused to counter the offer. The court accepted DK&S’ novel argument of prematurity, and Judge Duval granted the Motion for Summary Judgment on those grounds.
WHEELER TRIGG KENNEDY NAMED A TOP 20 U.S. PRODUCT LIABILITY LAW FIRM
The 2008 edition of Chambers USA, a directory that ranks "America’s leading lawyers for business," lists the The Network-member firm of Wheeler Trigg Kennedy among the top four firms for general commercial litigation in Colorado and among the top 20 firms for product liability litigation in the country.
Chambers USA 2008 also lists the following individual WTK lawyers: Malcolm Wheeler is ranked nationally among the top four lawyers for product liability work. Jack Trigg and John Fitzpatrick also are listed among the select group of national product liability lawyers. Mr. Wheeler is ranked in the top tier of general commercial litigators in Colorado. WTK Managing Partner Hugh Gottschalk and John Fitzpatrick are also included among the top general commercial litigators in Colorado. Raymond Martin is listed among the top labor and employment lawyers in Colorado.
Friday, July 18, 2008
WHEELER TRIGG KENNEDY "BEST FIRM FOR CLASS ACTIONS"
The 2008 edition of The Legal 500 U.S., self-described as "the world’s largest legal referral guide" providing corporate counsel independent, unbiased commentary on the leading law firms and lawyers, includes Wheeler Trigg Kennedy partners Malcolm Wheeler, Jack Trigg, and Michael Williams in the practice area of "Product Liability and Mass Tort Defense." Mr. Wheeler and Mr. Trigg are listed in the subsection for automotive matters. All three lawyers are listed in the subsection for consumer products.
Based on interviews with clients and other in-house counsel, The Legal 500 U.S. describes Wheeler Trigg Kennedy as "the best firm for class actions" in the United States.
DEUTSCH KERRIGAN REINSTATES JURY's "ZERO" VERDICT
Robert E. Kerrigan Jr. and Isaac H. Ryan of Deutsch, Kerrigan & Stiles were enrolled as appellate counsel for a major insurance company after a Louisiana Court of Appeal overturned a jury's determination of $0 loss of future earning capacity and increased that award to $1.1 million. The defendants' sole option was to seek a writ of certiorari from the Louisiana Supreme Court. Mr. Kerrigan and Mr. Ryan successfully argued that the jury's determination of the amount, if any, of lost earning capacity is an issue of fact subject to the manifest error standard of review, and they showed that the jury's determination was supported by the evidence. The Louisiana Supreme Court agreed and found that the Court of Appeal inappropriately substituted its own judgment for the judgment of the trial court. The jury's verdict of "zero" was reinstated.
Tuesday, July 08, 2008
COLORADO PLAINTIFFS’ LAWYERS HONOR CORPORATE DEFENSE LAWYER MICHAEL O'DONNELL
The Colorado Trial Lawyers Association presented Michael O’Donnell, chairman of the civil litigation defense firm Wheeler Trigg Kennedy LLP, with an award for "the highest standards of competency, ethics and professionalism." This is only the seventh time in its 55-year history that the CTLA, whose members are plaintiffs’ attorneys, has given this award to a defense lawyer. Mr. O’Donnell said, "I am honored to be recognized by my professional colleagues who I usually only see on the other side of the courtroom."
Mr. O'Donnell is listed in The Best Lawyers in America in four litigation categories, was voted one of the top ten lawyers in Colorado in 2007 by Colorado Super Lawyers, and is Chairman-Elect of the Colorado section of the prestigious American College of Trial Lawyers.
Friday, June 20, 2008
SNELL & WILMER NAMED TOP LAW FIRM IN PHOENIX BY CORPORATE DIRECTORS -- Firm Receives Honor for Seventh Consecutive Year
Snell & Wilmer L.L.P. announced today that it has been recognized by Corporate Board Member magazine, a national publication covering corporate governance and boardroom issues, as the top corporate law firm in Phoenix for the seventh consecutive year, according to a survey of corporate directors. The publication released the results of its eighth annual survey in its July/August cover story: "America's Best Corporate Law Firms." The issue features the selected best firms to do business with throughout 25 major metropolitan areas as well as the top 20 national law firms.
To determine rankings, Corporate Board Member magazine, in conjunction with FTI Consulting, surveyed over 2,000 directors serving on boards of publicly traded companies listed with the NASDAQ Stock Market, New York Stock Exchange, or American Stock Exchange, and general counsels of publicly traded companies. Those surveyed were asked which firms they would recommend to assist their companies on a wide range of corporate legal issues.
"At Snell & Wilmer, we are committed to providing our clients with superior legal services on a timely, effective, and efficient basis – all while maintaining the highest standards of professional integrity," said John J. Bouma, chairman of Snell & Wilmer. "We are proud to once again be selected by directors and general counsels as the top law firm in Phoenix. This honor carries great significance as it comes from the decision makers who work with outside law firms every day."
Tuesday, June 17, 2008
GOODELL DEVRIES RANKED AS THE LEADING LAW FIRM IN MARYLAND FOR MEDICAL MALPRACTICE DEFENSE BY CHAMBERS USA
Goodell, DeVries, Leech & Dann, LLP is recognized as the "top in the field of medical malpractice defense in Maryland" for 2008 by Chambers USA.
Partners Donald L. DeVries Jr., Craig B. Merkle, and Susan T. Preston are recognized as three top Leaders of Maryland’s medical malpractice defense law. Ranked as the number 1 medical malpractice attorney in Maryland for 2008, Donald L. DeVries, Jr. is regarded as the "top of the heap in medical malpractice" defense. Both Craig B. Merkle and Susan T. Preston were also honored for their medical negligence defense of hospitals and physicians by Chambers USA. This is the fourth consecutive year Craig B. Merkle has been recognized by Chambers USA. Susan T. Preston has been recognized for three consecutive years.
Chambers USA is an annual publication ranking law firms and attorneys based on in-depth interviews with attorneys, clients and corporate counsel. These 2008 rankings were based on peer interviews assessing "technical legal ability, professional conduct, client service, commercial awareness and astuteness, diligence, commitment and other qualities valued by client respondents."
Friday, June 13, 2008
GREAT RESULTS FROM DEUTSCH KERRIGAN (NEW ORLEANS, LA)
Legal Malpractice
William Wright and Charlotte Meade were successful in obtaining a summary judgment in favor of their client, a Florida law firm, who was sued by its former client in an adversary proceeding in Federal Bankruptcy Court in New Orleans. Plaintiff had hired the law firm to represent her interests in connection with a Business Services Agreement with two companies after those companies had filed for bankruptcy protection in the Eastern District of Louisiana in March 2006. In May 2007, the firm's client, on behalf of Plaintiff, filed an adversary proceeding against one of the companies alleging, inter alia, breach of contract. In January 2008, Plaintiff filed a Third Party Demand against its former counsel asserting that its advice caused her to incur substantial damages with regard to her violation of certain Bankruptcy Court orders. Mr. Wright and Ms. Meade filed a Motion for Summary Judgment contending that at all times the firm properly advised Plaintiff of her duties and obligations under the Bankruptcy Court Order. The Judge agreed, granting summary judgment in favor of the firm, and dismissing the Third Party Complaint.
Actuary Liability
William Wright and Charlotte Meade handled this actuary liability case where all claims, totaling $51 million in alleged damages, were dismissed after a four-day trial. Their client, an actuarial firm, was accused of breach of duty in regard to the management of a pension plan with $400 million in assets. The Plaintiff maintained that the actuary should have advised more conservative investments because the investors were maturing and should have advised not to implement additional benefits to the plan because they were too expensive. Wright and Meade successfully countered that the actuary did not have a duty to advise more conservative investments and had adequately advised as to the issue of benefits.
After obtaining a favorable verdict in March 2007, William Wright and Charlotte Meade successfully defeated an appeal to the Fifth Circuit. On appeal, Plaintiffs-Appellants argued that the lower court erred procedurally when it dismissed Defendants' Rule 52(c) motion, and granted in favor of Plaintiffs, before Defendants' argued their case in chief. Plaintiffs further argued that the lower court failed to conduct a proper comparative fault analysis under Louisiana law, and thus, Defendants should have been assigned some degree of fault. Briefs were submitted in the Fall of 2007. On March 4, 2008, Bill Wright conducted oral argument before the court. On May 6, 2008, the Fifth Circuit affirmed finding that both of Plaintiff-Appellants' arguments on appeal failed.
Personal Injury
Bert Cass obtained a defense verdict for his client, a general contractor, who was being sued for millions in a serious personal injury suit. The sheet metal worker plaintiff alleged that the contractor had improperly placed and installed a safety gate, which he was opening from atop a ladder, when he fell eighteen feet, crushing his left heel, ankle, and left elbow. Four other defendants settled a week before the trial, leaving Mr. Cass to face three plaintiff's attorneys, their experts, and the plaintiff's co-workers, who testified that opening the safety gate while standing on the ladder was dangerous and who were critical of the gate's placement. After a jury trial that lasted from May 5-14, 2008, the jury found in the defendant's favor. The case was tried in Civil District Court for Orleans Parish, which is a notoriously unfriendly forum for defendants.
Tuesday, June 03, 2008
SIX SUPER LAWYERS AGAIN AT CORR CRONIN
Corr Cronin Michelson Baumgardner & Preece is pleased to announce that once again six of its lawyers have been chosen by their peers as "Super Lawyers." Kelly Corr, Bill Cronin, Guy Michelson, Kevin Baumgardner, Josh Preece and Randy Squires were each selected for 2008. Fewer than five percent of the state's lawyers receive this recognition. Once again, both Kelly and Bill were also picked among the "Top 100" lawyers for the state. More than 27,000 lawyers practice in Washington.
Friday, May 23, 2008
BEIRNE MAYNARD FIRM WINS IMPORTANT FIFTH CIRCUIT DECISION REJECTING THE CONCEPT OF "UNIVERSAL JURISDICTION"
On Wednesday, May 14, the U.S. Court of Appeals for the Fifth Circuit issued its opinion in Stroman Realty, Inc. v. Antt, which reversed injunctions granted by a Houston federal judge against the enforcement of the real estate licensing laws of the States of California and Florida. The lower court had ruled the California and Florida laws were unconstitutional as applied to the resale of timeshare condominiums by a Texas-based broker. The Fifth Circuit decision is the latest development after 10 years of litigation involving these parties.
Lawyers from several Texas law firms represented the California and Florida officials in the Fifth Circuit. Jeff Nobles, a partner at Beirne, Maynard & Parsons, was lead counsel for the State of State of California Department of Real Estate in the Fifth Circuit; partner Clint Corrie and associate John Broussard assisted in the appeal.
The case had drawn attention for its significance to the timeshare industry and for the constitutional issues raised by the effect of traditional state regulations on Internet-based businesses like Stroman Realty, a Conroe affiliate of ERA Realty, and one of the largest timeshare resale companies in the country. States have traditionally regulated real estate brokers to protect consumers, but Stroman Realty contended that its business model, based on the Internet, direct mail, and newspaper advertisements rather than a physical presence in other states, is immune from regulation in other states under the Commerce Clause of the U.S. Constitution. Judge Lynn Hughes agreed, and enjoined California or Florida from enforcing their laws against Stroman, in an opinion available online here.
The Fifth Circuit decided the case on jurisdictional grounds. Stroman sued state officials from California, Florida, Arizona, and Illinois in Texas, its home state. Other Houston federal judges declined to exercise jurisdiction over Arizona and Illinois officials, but Judge Hughes entertained the suit against California and Florida officials. A Fifth Circuit decision affirming jurisdiction in Texas would have created a convenient litigation vehicle for businesses complaining of interstate regulations, while requiring state officials to defend their regulations in any state where the effects of their laws are felt. These concerns eventually led the attorneys general of 15 states and territories to file an amicus brief in support of the California and Florida officials.
The Fifth Circuit ultimately vacated the lower court's injunctions on the ground that Stroman could not be permitted to sue the California and Florida officials in Texas. The appellate court noted the practical effects of Stroman’s arguments would allow "an Oklahoma resident to sue a California state trooper in Texas for civil rights violations occurring in California," and rejected what it deemed "an attempt at universal jurisdiction, by a federal district court, for which there are no limiting principles."
Joel R. White, a solo practitioner in Austin, was lead counsel on appeal for the Florida officials, and was joined by Linda Broocks, of Ogden, Gibson, Broocks & Longoria.
