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The Role of Medical Examiners and Forensic Pathologists in the Defense of Wrongful Death Cases

In catastrophic injury cases, defense counsel are most familiar with the first responder investigations conducted by local and state police and fire departments.  In death cases, however, there is a third public responder, the local Medical Examiner’s Office. 

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A Fresh Challenge to Standing Under Consumer Protection Laws

The United States District Court for the Northern District of West Virginia recently dismissed West Virginia Consumer Credit and Protection Act (WVCCPA) consumer protection claims because the plaintiffs lacked standing as a result of their bankruptcy discharge. Fabian, et al. v. Home Loan Center, Inc., et al., No. 5:14-CV-42, 2014 WL 1648289 (N.D. W. Va. Apr. 24, 2014). Claims under the WVCCPA are available to a “consumer,” defined as “any natural personobligated or allegedly obligated to pay any debt.” W. Va. Code § 46A-2-122(a) (emphasis added). The court reasoned that because the plaintiffs were relieved of personal liability for the debt by virtue of the discharge that they received in bankruptcy, they were no longer obligated to pay the debt and therefore could not meet the definition of a consumer. In reaching its decision, the court cited an opinion from the United States Court of Appeals for the First Circuit, which applied the same argument to claims brought under the federal Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq. Arruda v. Sears, Roebuck & Co., 310 F.3d 13, 23 (1st Cir. 2002).

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Holding a Plaintiff to His or Her Burden: <i>Guidance from a recent Fourth Circuit opinion for challenging a whistleblower’s prima facie case.</i>

From a case involving allegations of criminal export violations, falsified board meeting minutes, and insider trading, defense attorneys can find renewed hope for defeating whistleblower claims. In Feldman v. Law Enforcement Associates Corporation, __ F.3d __, 2014 WL 1876546 (4th Cir. 2014), a unanimous panel of the United States Court of Appeals for the Fourth Circuit affirmed a district court’s entry of summary judgment for the defendants on claims brought under the anti-retaliation provision of the Sarbanes-Oxley Act of 2002 (SOX), 18 U.S.C. § 1514A. After analyzing the evidence, the court of appeals determined that the plaintiff had failed to establish that any protected activity was a contributing factor in his termination and that he had therefore failed to establish a prima facie case of retaliation. The result is a well-reasoned opinion demonstrating how a whistleblower’s burden is not met absent sufficient evidence.

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Trial Skills: Cross-Examination Know the elements of the plaintiffs’ case. In almost every case involving some professional or technical issue, the plaintiff must hire an expert to address the elements of the cause of action.  Make sure you know what the plaintiff is trying to prove. You won’t be able to organize a good cross without knowing the plaintiff’s objective in closing argument. Some of your best cross-examination testimony will come from attacking the element or elements on which the expert is weakest.  view more
How to Write Case Reports to Assist In-House Counsel

The case report is one of the most important documents you can prepare in a case.  It is the one document that in-house counsel meticulously reads, and on which they rely, in determining a case’s progression and ultimate resolution.  A well-crafted case report will be instrumental in helping counsel set and execute strategy, reduce litigation costs, reduce risks, save time, and, ultimately, help you provide better value to the client.

To create a useful case report, attorneys should know how the client uses the document, and what information the client would like included.  While the answers to those questions might vary a bit from client to client, the core purpose of a case report remains the same: to understand the potential impact of a dispute so that the strategy can be managed accordingly.  A well-written, concise, and informative case report is the backbone of the client’s decision-making framework, allowing the client to assess the dispute properly and determine the most effective course of action.

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What Is the Correct Standard of Liability Under the ADA? Did a federal district court err in rejecting the but-for standard for ADA discrimination claims?

In Siring v. Oregon State Bd. of Higher Educ., an Oregon federal district court held that the but-for standard of causation applicable to discrimination claims under the Age Discrimination in Employment Act of 1967 (ADEA), as well as to retaliation claims under Title VII of the Civil Rights Act of 1964 (Title VII), is not applicable to discrimination claims under the Americans with Disabilities Act of 1990 (ADA), as amended by the ADA Amendments Act of 2008 (ADAAA). Instead, the court concluded, “the causation standard for ADA discrimination claims is ‘motivating factor.’” 

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Insurers Not Obligated to Defend in ZIP Code Coverage Suits

Insurers are increasingly faced with privacy and data-breach related claims. One of the most common issues involves retailers’ collections of customer ZIP codes allegedly in violation of statutory or common law privacy laws. When an insured retailer is sued, must its insurer provide a defense under the “personal and advertising injury” policy section?  Given the frequency with which such claims are being made, how to respond to these claims is an important issue for insurers.

A Pennsylvania federal court recently analyzed whether OneBeacon America Insurance Company (OneBeacon) and The Hanover Insurance Group (Hanover) were obligated to defend retailers Urban Outfitters, Inc. and its subsidiary Anthropologie, Inc. (collectively Urban Outfitters) in three putative class action lawsuits challenging Urban Outfitters’ collection of customer ZIP codes. OneBeacon America Ins. Co. v. Urban Outfitters, Inc., et al., case number 2:13-cv-05269 (E.D. Penn., May 15, 2014). Applying Pennsylvania law, the court held that neither insurer had a duty to defend Urban Outfitters in any of the three class action lawsuits.

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Transvaginal Mesh Litigation—Creating a “New” Bellwether Process?

Currently pending before Judge Joseph R. Goodwin in the United States District Court for the Southern District of West Virginia is the pelvic repair system product liability litigation (transvaginal mesh litigation), which is presently the largest active multidistrict litigation (MDL).  These MDLs arise from the use of transvaginal surgical mesh to treat female pelvic organ prolapse and stress urinary incontinence. This litigation currently consists of seven separate MDLs involving nearly 60,000 plaintiffs.  Originally, each of the MDLs followed the traditional bellwether process, selecting and working up representative cases to be tried either by Judge Goodwin in the transferee court (Southern District of West Virginia) or by the district judges in plaintiffs’ home districts.  However, as the transvaginal mesh litigation has progressed and grown since the first MDL was created in 2010, the parties have seen a transition away from the traditional bellwether process as the sole approach, to new methods by which the court has decided to manage this mass action. It is possible that we may see these changes in the transvaginal mesh litigation’s bellwether process utilized by other courts in future MDLs or class settings. 

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Get Ready for Canada’s New Anti-Spam Legislation!

In December 2010, the Canadian government passed Canada’s Anti-Spam Legislation (CASL), which creates substantial restrictions on the use of electronic messaging for commercial purposes.  Three years later, on December 4, 2013, Industry Canada published the final regulations under CASL and announced that the majority of the CASL, with a few exceptions, will begin to take effect on July 1, 2014. With anti-spam provisions that apply to electronic messages sent or accessed by computer systems located in Canada, CASL and its accompanying Electronic Commerce Protection regulations and guidelines will have far-reaching effects, including on the electronic communications and marketing practices of foreign companies operating, or promoting their products and services, in the Canadian marketplace.

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Bigotry as a Factor in Evaluating Liability Claims

Bigotry is one of the more prevalent and unpleasant aspects of human nature. Our modern, enlightened society has come a long way toward eliminating personal traits such as race, religion, and gender as factors in the way we treat each other. Although we still have a long way to go, American society generally discourages personal prejudice and actively seeks to alleviate its harmful effects. Equal opportunity laws impose penalties against those who discriminate against job seekers, homebuyers, and bus riders on the basis of their appearance, heritage, or religion. However, personal prejudices persist in one important American institution: the jury trial.  Ironically, the bastion of justice is often the occasion of some of the most egregious offenses to American principles of equality and fair play. A candid and thorough evaluation of a liability claim must take into account the effect of jurors’ prejudices on the potential outcome of a litigated case. 

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Insurance Brokers Must Toe the Line

In a majority of jurisdictions in the United States, an insurance broker only owes a duty to his or her client to obtain the requested insurance coverage within a reasonable time or inform the client of the inability to do so.  (Murphy v. Kuhn 660 N.Y.S.2d 371, 373 (NY 1997); Fitzpatrick v. Hayes (1997) 57 Cal.App.4th 916, 927).  Generally, the insurance broker does not owe the client a duty to advise, guide, or direct such client to obtain additional insurance coverage not specifically requested by the client.  However, the line between the duty to procure and the duty to advise is becoming more and more blurry.  Courts are facing more claims than ever to determine whether the insurance broker’s actions warrant holding him or her to higher duty to the client. 

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No Claims in the US for International Flight Delays Without Breach of Contract

In the recent years, several cases have been filed with the United States District Court for the Northern District of Illinois against various airlines for damages due to flight delays.  In all of these cases, passengers were trying to obtain in one form or another, compensation under the European Parliament and Council Regulation No. 261/2004 (EU 261), which requires airlines to assist passengers in case of delays or cancellation of flights departing from or arriving to an EU Member State. 

This article will explain why EU 261 has been so attractive for passengers seeking compensation for flight delays in US courts.  Further, it will address other legislation pertinent to defending EU 261 claims.  Finally, the article will discuss these recent decisions and compare their outcomes. view more
Spring Cleaning for Applications: Background and Credit Checks

As seasonal hiring begins, employers should reassess their application process, including the actual application, job description, and background and credit check policies, because legislation restricting the use of these checks continues to be enacted across the nation.

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Google Glass: How Will It Affect the Law as We Know It? In April 2012, Google introduced its Google Glass project, which takes the functionality of a smartphone to a new level. Glass is a wearable device that resembles a pair of eyeglasses and allows you to connect to the Internet with built-in monitor, camera, and microphone. The cutting-edge technology is able to record, save, and upload anything the Glass wearer can see or hear. It also allows Internet access with the flick of an eye. The device is not yet generally available to the public, though it is rumored to be available for purchase later this year. However, individuals called “Explorers” are testing Google Glass by wearing it.  Unsurprisingly, the device has already drawn questions by some regarding privacy and other issues.

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How Will the Legalization of Marijuana Affect Employers?

Currently 20 states, including the District of Columbia, have legalized marijuana for medical use.  In addition, Colorado and Washington State have legalized the "recreational" use of marijuana.  The legalization of marijuana presents several issues with which employers will have to contend.  This article will address the federal government's response to state marijuana legalization, state laws affecting employers' rights to restrict marijuana possession and use by their employees, and recommendations for employers seeking to regulate marijuana possession and use by their employees.

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How to Respond to Politically Incorrect Comments in a Professional Setting

As attorneys, we will find ourselves in uncomfortable situations when clients make racist, sexist or politically inappropriate comments in our presence.  How does an attorney respond?  Typically these comments are made over the phone where the client has not met the attorney in person.  Sometimes they are made in a face to face conversation where the client makes an incorrect assumption about the attorney's ethnicity, sexual orientation, religion or political views.  Often times the person who uttered the incorrect and thoughtless remarks are crucial to the attorney's practice.  They may be important clients whose work generates substantial firm revenue.  The first rule of maintaining integrity I believe, is that one cannot misrepresent oneself or one's positions.

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Discovery Stick Up – Give Me Your Money or Your File: New York’s Trend Toward Expanding Discovery Exchange in First Party Disputes by Steven E. Peiper

For decades, the attorney-client privilege has traditionally been sacrosanct in New York, as well as anywhere else in the country.  To that end, it had been clearly established under New York law that an attorney-client privilege exists where “a communication is made within the context of the relationship for the purpose of obtaining legal advice,” and the communication is intended to be, and is actually kept, confidential.  Abu Dhabi Commercial Bank v. Morgan Stanley, No. 08 Civ. 7508(SAS), 2011 US Dist. LEXIS 116850 (S.D.N.Y. Oct. 3, 2011).

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Reverse Bad Faith: An Alternative to Even the Playing Field?

Every contract contains an implied duty of good faith and fair dealing which requires every party to the contract to act in good faith in the performance and enforcement of the contract.[1] While this rule on its face should apply to every party to every contract, it has not traditionally been applied in such an evenhanded and fair manner with respect to insurance contracts. Generally, the burden of good faith and fair dealing has been one-sided and falls almost exclusively on the shoulders of insurance carriers.[2]  This is evidenced in the widespread availability of a common law, and in some places statutory, cause of action for an insurer’s breach of the duty of good faith and fair dealing, while such a cause of action is largely unavailable to insurers wishing to combat an insured’s violation of the same duty.

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When Is Work Travel Work? Travel under the Fair Labor Standards Act

 "Travel is glamorous only in retrospect." Paul Theroux. And never more so when it involves non-exempt employees and the Fair Labor Standards Act.

The Fair Labor Standards Act (FLSA) is one of the most confusing and difficult statutes in the United States Code to comply with properly. Through many twists and turns, including who is or is not an "exempt" employee; what constitutes "work" and what does not; and what is, or is not, overtime, many employers, in spite of their best efforts, still violate the FLSA. Inadvertent violations of the FLSA can be time-consuming and expensive to defend. Damage provisions in the FLSA are severe. The only area in which an employer's good faith is taken into account is the statute of limitation for FLSA claims. Therefore, it is not surprising that FLSA claims take up a considerable amount of time in employment litigation, and even more time in consulting with attorneys, including in-house counsel, before litigation.

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A Blueprint for a Successful Construction Mediation

Project: Settlement.  Construction mediation is no different than any other type of mediation.  However, it can present additional challenges since there are frequently a multitude of parties, as well as numerous collateral issues which can impede settlement.  Let’s take a look at the critical path to getting the case settled.

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Avoiding a Nightmare – Creating a Record to be Proud Of Introduction

Appellate practitioners can face problems in crafting a winning appeal long before the first brief is even drafted.  Technical defects and missing documents can distract from the merits, stall the momentum of a compelling argument, and doom an appeal.  In a nightmare scenario, an appellate lawyer can expend significant time and energy better expended elsewhere reconstructing the record and curing technical defects.  Both trial counsel and the appellate specialist can benefit from early consideration of how the case put in at trial will look on appeal. 

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Self-Imposed Limitations on Pre-Deposition Interrogatories to Plaintiffs—A Sound Defense Tactic

Defense counsel will often serve written interrogatories at the initial stages of a personal injury lawsuit, with the intention of using the answers to those interrogatories in preparing for and conducting a deposition of the plaintiff.  The Federal Rules of Civil Procedure and some state and local rules impose limitations on the number of interrogatories that may ordinarily be served. See FRCP 33(a)(1); see also, Illinois Supreme Court Rule 213(c); see also Milwaukee County Circuit Court Rule 3.20 (2010).   Sometimes, however, self-imposed limitations on such interrogatories are also appropriate.  This article will discuss those things that are probably best not asked in initial written interrogatories, and explain why. 

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The Louisiana and Arkansas Supreme Courts Apply the Brakes to State Medicaid Fraud Claims—Will the Reasoning Extend Beyond Their Respective State Lines?

Several Attorneys General throughout the country have aggressively pursued fraudulent marketing claims against pharmaceutical companies under state Medicaid fraud statutes.  The AG’s theory often is that the pharmaceutical company at issue knowingly misrepresented that the drug at issue was safer than other drugs, knew that the state Medicaid program would eventually pay for the drug for Medicaid recipients, and that the state would not have purchased or reimbursed the cost of the drug if it had been aware of the alleged misrepresentations.  As the two cases discussed in this article illustrate, the potential exposure to defendants is enormous.  But the supreme courts of Louisiana and Arkansas have recently reversed huge jury verdicts upon concluding that the state’s Medicaid fraud statute did not apply.

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The Apex Deposition: Defense Strategies to Shield Corporate Executives from Harassment

Depositions are a focal point in civil litigation.  As fewer cases proceed to trial, discovery plays a more prominent role in the development of a lawsuit.  Depositions, in particular, have become less oriented toward fact-gathering and more toward acquiring strategic advantages.  Counsel conducting depositions endeavor to exploit time with adverse witnesses to elicit soundbytes and admissions, expose vulnerabilities in an adversary’s case, and gain leverage for potential settlement. 

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Patient Protect and Affordable Care Act’s Nondiscrimination Rules: An Overlooked, Yet Important Piece of the Puzzle

The Patient Protection and Affordable Care Act (ACA) has received its fair share of attention since its enactment in 2010—from the constitutionality of the individual mandate to the pay-or-play provision for employers to the current constitutional challenge to the mandate to provide preventive health services. One provision of the ACA, however, to escape widespread scrutiny thus far is the nondiscrimination rules.

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Sixth Circuit ERISA Case Reaffirms Extremely Deferential Standard of Review

Fifteen years ago, the Seventh Circuit infamously commented that the arbitrary and capricious standard of review is not “without some teeth” and courts should not merely “rubber stamp” administrators’ decisions that run contrary to the plain meaning of a disability plan.  Cozzie v. Metro Life Ins. Co., 140 F.3d 1104, 1107-08 (7th Cir. 1998).  This language has reverberated throughout the country in numerous ERISA opinions since.  It has become so ubiquitous, in fact, that the Sixth Circuit recently acknowledged what some ERISA practitioners have been arguing for years—that Cozzie’s “cautionary metaphors . . . may have even eclipsed the meaning of the standard and rendered arbitrary and capricious review nearly indistinguishable from the competing, and more demanding, de novo review standard.”  McClain v. Eaton Corp. Disability Plan, No. 13-5395, 2014 U.S. App. LEXIS 1354, at **11-12 (6th Cir. Jan. 24, 2014).

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Optimizing Trial Technology and Tools

Even the most experienced trial attorney can be intimidated by the use of technology at trial.  The litigation world has come a long way.  In less than 15 years, we have gone from distributing paper copies of exhibits to jurors—even in complex commercial trials—to having a variety of technological options available.  And not just for displaying exhibits, but for scientific demonstrations, opening/closing aids, and showing live testimony from remote locations.  To be competitive, trial lawyers need to know what the technological options are, how to use them, and how to do so effectively.

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Respond with Caution! Responses to Discovery “Subject to the Stated Objections” May Waive Your Client’s Objections

A growing number of federal courts have confirmed that the once-common discovery practice of asserting an objection, followed by a bare “conditional” response, i.e., stating that “Without waiving the stated objections, defendant will produce non-privileged responsive documents,” is now considered improper and may result in an inadvertent waiver of the party’s stated objections.

It has become common practice among many litigators to respond to a discovery request by stating the party’s objection, followed by a conditional response.  For instance, practitioners routinely respond to a discovery request by stating, “Subject to and without waiving the stated objections, Defendant will produce non-privileged responsive documents.” Many federal district courts are concluding that such a conditional response, without specifying which part is objected to and which part is being responded to, is improper and, most significantly, that a party may waive its objections by responding conditionally.  Sprint Comm. Co., L.P. v. Comcast Cable Comm., LLC, No. 11-02684-JWL, 2014 WL -------, *4–8 (D. Kan. Feb. 11, 2014), available at https://ecf.ksd.uscourts.gov/cgi-bin/show_public_doc?2011cv2684-177.

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Liebeck v. McDonalds Restaurants: The Original Coffee Product Liability Case

Back in 1994, Stella Liebeck v. McDonalds Restaurants became one of the most talked about lawsuits in American history. To this day, that New Mexico state court case is an essential component of any tort reform debate or discussion of litigation lore.  At that time, and to this day, the thought of a fast food drive-thru customer spilling coffee on herself in her vehicle and later recovering a punitive verdict of $2.7 million was simply too much for many members of the public. As we all know, the case became fodder for late night talk show hosts and later, Internet commentators, most of whom were relatively unfamiliar with the basic facts of the case. Over the years, the case has become part cautionary tale, part urban legend, and individuals seeking confirmation of even the most basic facts of the case have encountered great difficulty (in part because the case resulted in no formal appellate opinion setting forth its factual and procedural background).

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Can I Copyright My “Knight in Shining Armor” Story?

The short answer is—perhaps, at least parts of it.  Copyright law protects “original works of authorship fixed in a tangible medium of expression.” 17 U.S.C. §102.  This protection attaches from the moment at which the expression is recorded—in other words, from the moment the pen hits the paper.

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Commonly Used Severance Agreement Provisions Under Fire

An employer who has to terminate an employee or make a reduction of their workforce must make these decisions with a plan of action and take measured steps to assure their business is protected from wrongful termination liability.  Many employers seek an attorney’s assistance in preparing severance agreements to avoid post-termination liability.  A well-drafted severance agreement is the best and most cost-effective way for an employer to have an employee release the employer of potential claims and avoid expensive litigation.  But can we be certain that the agreements we draft are enforceable?

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Litigating Coverage for Personal and Advertising Injury in the Twenty-First Century

Ever since insurance for “personal and advertising injury” was first offered in the 1970s, insurers and insureds have been litigating the scope of this coverage.  The landscape is constantly shifting, now more than ever. Our electronic era raises numerous questions about whether coverage exists for torts committed in cyberspace. Just last year, the Insurance Services Office (ISO) issued a new commercial general liability (CGL) form which significantly changes the coverage that most insurers are willing to offer for “personal and advertising injury,” also known as “Coverage B.”

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<i>Mutual Pharmaceutical v. Bartlett</i> and FDA's Proposed Rule on Labeling Changes—Assessing the State of the Preemption Defense for Generic Drug Manufacturers

In the landmark decision Pliva, Inc. v. Mensing, 131 S. Ct. 2567 (2011), the Supreme Court held that failure-to-warn claims against generic drug manufacturers are preempted by regulations under the Federal Food, Drug, and Cosmetic Act (FDCA) prohibiting generic manufacturers from making unilateral changes to a drug’s labeling.  Two years later, in Mutual Pharmaceutical Co., Inc. v. Bartlett, 133 S. Ct. 2466 (2013), the Supreme Court extended Pliva to design defect claims based on product mislabeling.  However, this past November, FDA proposed a rule change which, if adopted, will effectively eliminate the preemption defense for generic drug manufacturers, rendering Pliva and Bartlett moot.

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Safety Throughout the Food Chain

For most of this nation’s history, there has been little to no coordination among companies playing different roles in the nation’s food supply chain.  Companies in various roles have been regulated by at least 30 different laws and monitored by more than a dozen different state and federal governmental agencies. (President’s Food Safety Working Group, Food Safety Working Group: Key Findings at 2.) Often those governmental agencies had conflicting goals and objectives. Companies were answerable for their own conduct without necessarily understanding the obligations of the players either up or down the food chain.  The companies at each link in the chain were playing their own game, under their own rules with their own referees.

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<i>Mutual Pharmaceutical v. Bartlett</i> and FDA's Proposed Rule on Labeling Changes—Assessing the State of the Preemption Defense for Generic Drug Manufacturers

In the landmark decision Pliva, Inc. v. Mensing, 131 S. Ct. 2567 (2011), the Supreme Court held that failure-to-warn claims against generic drug manufacturers are preempted by regulations under the Federal Food, Drug, and Cosmetic Act (FDCA) prohibiting generic manufacturers from making unilateral changes to a drug’s labeling.  Two years later, in Mutual Pharmaceutical Co., Inc. v. Bartlett, 133 S. Ct. 2466 (2013), the Supreme Court extended Pliva to design defect claims based on product mislabeling.  However, this past November, FDA proposed a rule change which, if adopted, will effectively eliminate the preemption defense for generic drug manufacturers, rendering Pliva and Bartlett moot.

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Navigating the Ethical Minefield of “Burning Limits” Insurance Policies They are known as “burning limits,” “defense within limits” (DWL), “wasting,” “spend-down,” “self-consuming,” “self-liquidating,” or even “cannibalizing" insurance policies. Whatever the name, the costs of defending an insured against a suit are included within the limits of the policy, leaving less money available to pay a judgment or settlement. Such policies exist in stark contrast to more commonplace liability policies, under which defense costs are in addition to the limits of liability and not subject to those limits. While there has been much commentary on the ethical issues implicit in the “tripartite relationship” among the insurer, defense counsel, and the policyholder where defense costs are in addition to the limits of liability, much less attention has been paid to the ethical issues presented by defense under a burning limits policy, which are, if anything, even more poignant. This article is an attempt to redress that imbalance. 

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Mentoring Committee: What to do When you Receive a New File

You walk into the office on Monday morning to find a copy of a complaint and some other documents on your chair.  On top is a yellow post-it note from a partner, asking you to see her about working on a new case.  What can you do to set yourself up for success on this new matter?

Every new matter needs a plan of attack, and that plan of attack has to begin as soon as you receive the assignment.  To give yourself the best chance of success in satisfying your partner and getting the best result for your client, you should always develop and follow a plan that looks at the end game, even while the game is just beginning.

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Sports and Entertainment Law SLG: Snyder’s Last Stand

The Washington Redskins, the Cleveland Indians, the Chicago Blackhawks, and the Kansas City Chiefs play different sports in different cities, but collectively, they share many things. Each team is beloved in their respective city by fans, young and old. Each team has a rich history and tradition. And each team is the proud owner of a trademark that could be construed as disparaging toward Native Americans, playing on stereotypical notions or imagery to sell merchandise to the public at large. A lot has been said and written lately about the Redskins nickname, in particular. Everyone seems to have an opinion about it. President Barack Obama has even weighed in on the subject, recently saying that he believes that Redskins owner Daniel Snyder should "think about changing" the team's nickname. However, appeals to Snyder's heartstrings seems to have fallen on deaf ears; he's defiantly stated that he will "never" change the name of his beloved team. He may not have to — the courts may do it for him. A new appeal to the Trademark Trial and Appeals Board (TTAB) by six young Native American plaintiffs may finally spell the end of the Redskins mark, once and for all. More on this in a second. First, a little history.

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The Continuing Saga of Class Action Fairness Act Jurisdiction, and Why You Miss Out if You Miss the Business Litigation Seminar

It goes without saying that DRI seminars are a wonderful way to network and learn about developing legal issues.   Readers of theBusiness Suit probably are aware that the Commercial Litigation seminar in particular has been an extremely productive event to attend.  The event promises to be even more valuable now that there is a seminar focused specifically on business litigation.

If you did not attend this year's Commercial Litigation seminar (and where were you?), you missed an important illustration of just how valuable attendance at DRI seminars can be.  Participants in the Class Action SLG break out session learned about two issues involving the Class Action Fairness Act of 2005, Pub. L. 109-2 ("CAFA") that are continuing to attract attention from the nation's highest courts.  

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Conflict of Laws and Actual Causation in Asbestos Litigation Conflict of laws is about conflict, not choice. Yet more and more plaintiffs in asbestos cases move courts to apply foreign actual causation standards in jurisdictions where plaintiffs consider the burden of proof, surprisingly, burdensome. These plaintiffs employ conflict of law principles to enforce their burden of choice. This tactic is wholly inappropriate. Actual cause is a question of fact for the jury. Questions of fact neither absolve a plaintiff’s right to sue nor deny a party’s liability as a matter of law. 

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Class Action SLG: Whirlpool and Sears: The Impact of Products Liability Class Actions on the Reinforced Commonality and Predominance Requirements of Rule 23

Front-loading washing machines have revolutionized the age-old chore of laundry because of their increased capacity and efficiency.  Why, then, are the front-loading washing machines the subject of countless proposed class actions all across the country?  As the manufacturers of those washing machines have repeatedly tried to say: what does not smell right is that the certified classes include numerous consumers who have not experienced any problems with the washers and have suffered no actual damages.  According to the Sixth and Seventh Circuit Courts of Appeal, however, whether those washing machines are defective is a sufficient common question that predominates over individual issues to support class certification under Rule 23(b)(3).  Glazer v. Whirlpool Corp., 722 F.3d 838, 852 (6th Cir. 2013); Butler v. Sears, Roebuck & Co., 727 F.3d 796, 801 (7th Cir. 2013).

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One Size Does Not Fit All in the Wake of the ADAAA Overview: Americans with Disabilities Act (“ADA”) and the ADA Amendments Act (“ADAAA”)

President George W. Bush signed the ADA Amendments Act of 2008, Pub.L. 110-325 (2008) (“ADAAA”), into law on September 25, 2008, with an effective date of January 1, 2009.  The ADAAA widened the number of persons covered by the ADA, which in turn, widened the number of potential litigants under the ADA.  The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability. 

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Spray Polyurethane Foam Insulation Products Liability Litigation – An Update

Earlier this year, it seemed like Spray Polyurethane Foam Insulation ("SPF") might generate the type of attention that Chinese drywall did.  Between April 2012 and May 2013 homeowners in various parts of the country, including Connecticut, Florida, Maryland, Michigan, New Jersey, New York, Pennsylvania, and Wisconsin, had filed at least thirteen separate lawsuits alleging property damages and physical injuries arising from SPF.

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Composite Decking Litigation: After the Trex Settlement, Who’s Next to the Party?

Over the last decade, the plaintiff’s bar has turned its attention to composite decking manufacturers, filing a stream of class action and direct actions against several big-name manufacturers, and – with two recent high profile class action settlements – the efforts appear to be paying off. While some complaints have either been dismissed or voluntarily withdrawn, several actions have resulted in significant settlements, as well as more modest settlements for private claimants. Accordingly, composite decking manufacturers present a clear target to the plaintiffs’ bar, and the question being asked has gone from “do these claims have merit?” to “which manufacturer is the next target?”  

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Admissibility in Products Liability Cases of Data Published by the Consumer Products Safety Commission’s National Electronic Injury Surveillance System

In several recent product liability actions,[i] plaintiffs have sought to introduce evidence of data that the Consumer Product Safety Commission ("CPSC") had compiled, including CPSC statistical extrapolations that estimate the total number of accidents occurring each year involving a particular class of consumer product.  This "other accident" statistical evidence is derived from information that the CPSC gathers from representative hospitals regarding accidents involving consumer products, as part of the CPSC's National Electronic Injury Surveillance System ("NEISS") program. 

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Should Naturally Occurring Substances, Such as Asbestos or Diacetyl, Be Subject to Design Defect Claims? Many toxic tort cases involve substances that are naturally occurring. Asbestos and diacetyl are among several well-known, naturally occurring substances that are sold commercially, and they have been the subject of national litigation alleging permanent and, at times, fatal injuries from exposure. For the most part, plaintiffs have sought recovery under the failure to warn or design defect theories of product liability. Although both theories require a plaintiff to prove that the product in question is unreasonably dangerous, the elements of each theory are different. There are also distinct defenses available to each, depending on the jurisdiction. Naturally occurring substances, such as asbestos and diacetyl, are not “designed” and, therefore, should not be subject to design defect claims as a matter of law. Defense counsel should pursue motions to dispose of such claims where feasible.

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The Pitfalls of “Replying to All”

During those incredibly busy days all lawyers face, it is important to be mindful of the recipients of any electronic communication. There may be nothing more perilous than the “Reply to All” function on one’s email service; so dangerous is the function that the Wall Street Journal has called it “the button everyone loves to hate.”

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Removing Some Litigation Hazards from Product Design: Why a Manufacturer Needs a Hazard Analysis in Product Files

It can hardly be disputed that most manufacturers take great efforts to design and to produce a product that is safe, effective, and in demand. The technological advancements of the past half-century are staggering; yet, so too is the increasing sophistication of those that “grade” a product’s safety. Regulations in the twentieth century grew exponentially. The twenty-first century has seen a refreshed focus on additional regulations, and perhaps more importantly, aggressive regulators. As the globalization of the economy has progressed over the past two decades, the focus on harmonizing regulations and standards has increased. This includes harmonizing regulation of the pre-production  assessment of potential hazards in a product’s use. What for years amounted to informally determined activities and documentation has evolved into a myriad of approaches and documentation. While no longer in its infancy, hazard and risk analysis continues to mature and to develop, with new approaches and methods constantly appearing. This overview will address several reasons why a manufacturer should implement a formal hazard analysis and discuss factors to consider in a product safety program.

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Teleradiology and Quality Assurance Issues

Teleradiology is a subset of the burgeoning enterprise of delivering health care services through telecommunication. The rapid spread and integration of telemedicine into traditional health care institutions has been driven by a demand for access and the quest for efficiencies. Because many telemedicine companies provide services in different states and countries, this form of delivery erases traditional geographical boundaries and often challenges conventional medical practice models. Commentators have focused on the incongruity of state statutory and regulatory schemes and the evolving corporate structures as issues facing telemedicine. Carl J. Ameringer, State-Based Licensure of Telemedicine: The Need for Uniformity but not a National System, 14 J. Health Care L. & Pol’y 55, 55 (2011).

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Absence of Prior Accidents Evidence – Recent Trends in Admissibility Admission of a product's safety history evidence is one of the "most effective defenses in products liability cases."[1]  Just as plaintiffs often introduce evidence of prior accidents in products liability cases,[2] defendants may offer proof of the absence of prior accidents.  Defendant manufacturers can utilize this proof to show that a product is not dangerous or defective, that the product did not cause the plaintiff's injury, or that the defendant lacked notice of a defect.[3]  Also known as "safety history" evidence, proof of the absence of prior accidents involving the product at issue is "powerful evidence for the defense,"[4] and can be "incredibly persuasive to the jury." view more

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