Defense counsel journal最新文献

{"title":"IADC Amicus Briefs","authors":"Kendall W. Harrison","doi":"10.12690/0895-0016-83.4.526","DOIUrl":"https://doi.org/10.12690/0895-0016-83.4.526","url":null,"abstract":"","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"86 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2019-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46666995","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Use of Computer-Generated Animations and Simulations at Trial","authors":"Victoria Webster, Fred E. Bourn","doi":"10.12690/0895-0016-83.4.439","DOIUrl":"https://doi.org/10.12690/0895-0016-83.4.439","url":null,"abstract":"Victoria Webster is senior counsel with Yamaha Motor Corporation, U.S.A. and has been overseeing product liability actions involving three and four wheel ATVs, side by side vehicles, golf cars, snowmobiles, and personal watercraft since 1986. She received her J.D., magna cum laude, from Southwestern University School of Law in Los Angeles in 1984. She is a member of both the California and Georgia bar. Trey Bourn serves as Assistant Practice Group Leader for the Product Liability, Toxic Tort, and Environmental Group at Butler Snow, LLP in its Jackson, Miss., offices. His practice is focused on representing clients in the areas of recreational vehicles, watercraft, automobiles, and other machinery-related product liability cases. He also focuses his practice on drug and medical device litigation. Trey earned his J.D. from the University of Mississippi, where he served as Editor-in-Chief of the Mississippi Law Journal. The authors would like to thank Carol T. Montgomery and Caroline D. Walker, both attorneys in the Birmingham office of Butler Snow LLP, for their invaluable efforts in putting together this paper. ********** A computer is not a gimmick and the court should not be shy about its use, when proper. Computers are simply mechanical tools--receiving information and acting on instructions at lightning speed. When the results are useful, they should be accepted, when confusing, they should be rejected. What is important is that the presentation be relevant to a possible defense, that it fairly and accurately reflect the oral testimony offered and that it be an aid to the jury's understanding of the issue. (1) INCREASINGLY, computer-generated animations and simulations are being used in courtrooms across the country. Although animations and simulations can assist jurors in understanding complex issues, they can also distract from and distort the facts of a case. In recognition of the power these new evidentiary tools can hold over jurors, courts have erected barriers to admission of this evidence in order to ensure that such evidence helps, more than it hurts, the fact-finder's search for the truth. Courts first review the evidence to determine whether it is animation or simulation, as standards for admissibility differ for each. Since expert testimony frequently provides the vehicle for animation and simulation admission, challenges to this evidence often should be made in the context of Daubert motion practice. Evidence of this type often is created in the latter stages of trial preparation, and therefore timeliness objections are frequently made (though they are rarely successful). Courts nearly always employ cautionary instructions that attempt to blunt the force of effective animations and simulations. I. Animation or Simulation? Computer-generated evidence can be categorized as demonstrative or substantive evidence, and the distinctions between the two are very important. Computer-generated \"animations\" are generally considered to be dem","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"83 1","pages":"439-459"},"PeriodicalIF":0.0,"publicationDate":"2016-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66588898","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Causation in Canada Revisited: Material Contribution to Risk and the Impact of Clements (Litigation Guardian of) v. Clements","authors":"S. Galway, G. Mckee","doi":"10.12690/0895-0016-83.4.487","DOIUrl":"https://doi.org/10.12690/0895-0016-83.4.487","url":null,"abstract":"Samantha Galway is a second year law student at Queen's University in Kingston, Ontario. She prepared an earlier version of this paper for her first year Torts Class, in which she received the Fasken Martineau DuMoulin LLP Prize in Torts, awarded on the basis of academic excellence. Gord McKee is a senior litigation partner at Blake, Casseis & Graydon LLP, whose practices focuses on product liability and class action defence. He was co-author on an earlier article published in the Defense Counsel Journal discussing causation law in Canada. (1) AT least until 2012, there was significant confusion in Canadian jurisprudence surrounding one aspect of the standard for causation in negligence actions. Canadian courts referred to this aspect as the \"material contribution\" test. In some of its articulations of this test, the courts were talking about a concept similar to the U.S. \"substantial contributing factor\" test. But in others, they seemed to be talking about something very different. The Supreme Court of Canada had been criticized by academic commentators for its failed attempts, in its earlier decisions in cases such as Athey v. Leonati (3) and Hanke v. Resurfice Corp. (4), to clarify the law in this area. Some critics, including one of the authors of this paper, argued that these decisions only served to further complicate an already unclear area of Canadian tort law. (5) In 2012, the Supreme Court addressed the issues raised in a number of these criticisms, and substantially clarified the law, drawing a clear distinction between two more precisely worded concepts --\"material contribution to injury\" and \"material contribution to risk\". (6) The former concept is nothing new or surprising, and akin to \"substantial contributing factor\". The same cannot be said for the latter, however. This paper will examine in more detail the 2012 decision of the Supreme Court of Canada in Clements (Litigation Guardian of) v. Clements, (7) and the Court's guidance regarding the material contribution to risk test. While the material contribution to risk test is now clearly part of Canadian tort law, it is a doctrine that will only rarely come into play. For this reason, the test has been referred to as the \"unicorn\" of Canadian law, often talked about but rarely seen. (8) Given the right fact pattern, this doctrine may be available to assist a plaintiff to establish liability in a negligence action where \"but for\" causation cannot be established, with or without application of the material contribution to injury test. I. \"But for'\" Is Still the Default Test for Causation Causation is one of the requisite elements that must be established to bring an action in negligence. It is required in order to link the harm inflicted on the plaintiff to the breach of duty owed by the tortfeasor. (9) To allow recovery where an injury would have occurred absent any breach of duty on the defendant's part would neither further the goals of compensation, fairness and deterrence, nor","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"83 1","pages":"487-495"},"PeriodicalIF":0.0,"publicationDate":"2016-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66588744","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Global Harmonization of Trade Secret Law: The Convergence of Protections for Trade Secret Information in the United States and European Union","authors":"Anand B. Patel, Jeffrey A. Pade, Victoria A. Cundiff, Bradford Newman","doi":"10.12690/0895-0016-83.4.472","DOIUrl":"https://doi.org/10.12690/0895-0016-83.4.472","url":null,"abstract":"Victoria Cundiff litigates trade secrets disputes in state and Federal courts nationally, coordinates international trade secrets litigation, and helps clients develop alternatives to litigating trade secrets disputes. She is the Chair of AlPLA's Trade Secrets Litigation Subcommittee and is Co-Chair of the New York State Bar Association's Committee on Trade Secrets. Bradford Newman founded and leads Paul Hastings' International Employee Mobility and Trade Secret practice. He is the author of Protecting Intellectual Property in the Age of Employee Mobility: Forms and Analysis, a comprehensive treatise published by ALM that offers authoritative guidance on legal risks and practical steps companies can take to protect their IP and remedy IP theft. In connection with his national practice spanning many industries, Mr. Newman routinely serves as lead trial counsel in cases with potential eight and nine-figure liability, and has successfully litigated a broad spectrum of trade secret and employee mobility cases in state and federal courts throughout the country. Jeffrey A. Pade is an intellectual property litigator with over 20 years of experience in all phases of patent trade secrets, and other intellectual property laws. He has directed complex and international patent and trade secrets litigation strategies concerning mechanical, semiconductor, and many other technologies for clients around the globe, and actively represents international clients in intellectual property audits, investigations, and strategic initiatives. Anand B. Patel provides strategic business counseling on intellectual property disputes, investigations, and transactions, and has extensive trial and appellate experience in patent and trade secret matters. A former Federal Circuit clerk, he represents a diverse group of clients on technologies ranging from microprocessor fabrication to pharmaceuticals. ********** AS major regions across the world seek to harmonize trade secret law within and across jurisdictions, international companies now should focus on building their own uniform policies and procedures for protecting their intellectual property and defending against claims of misappropriation. Given the recent passage of the Defend Trade Secrets Act (\"DTSA\") and the EU Trade Secrets Directive (the \"Directive\"), it is clear that both regions have recognized the substantial value of trade secrets to the global economy and have decided to take analogous stances on the basics of trade secret law, including what constitutes a trade secret and how a violation occurs. Although the similarities are not unexpected the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (\"TRIPS Agreement\") (1) provides many foundational provisions there are important nuances in each locale's rules that affect how companies should consider enforcing trade secret rights and defending against misappropriation claims across those major international jurisdictions. I. Overview of the DTSA ","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"83 1","pages":"472-486"},"PeriodicalIF":0.0,"publicationDate":"2016-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66588616","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Brief Overview of Recent Supreme Court Precedent - Keeping Foreign Litigation at Bay","authors":"David L. Luck, Douglas J. Chumbley, Michael Rodriguez","doi":"10.12690/0895-0016-83.4.460","DOIUrl":"https://doi.org/10.12690/0895-0016-83.4.460","url":null,"abstract":"GLOBALIZATION marches on. Consistent with this, connections between the United States and the outside world (both perceived and actual) have become commonplace. (1) Of particular relevance to products liability practitioners, from the 1990s through present day, exports of goods and services as a percentage of United States gross domestic product have continued to increase, as has international trade in general. (2) For the United States judiciary, this likely means more litigation that is international in nature. Along with that international flavor comes more claims between persons and entities of different national origins, as well as more choice-of-law, venue, and jurisdictional issues. Due to the civil jury system that it provides, its more generous damages laws, and the different compensation structures available to its legal counsel, the United States (and its constituent states and territories) will likely continue to be an attractive litigation situs for claims with greater connections to foreign countries. (3) In light of this, for products practitioners, as well as defense counsel in other contexts, it is important to understand some of the more recent United States Supreme Court precedent addressing tools to keep foreign litigation at bay. Considered together, these decisions demonstrate the High Court's tendency to err on the side of keeping foreign-centered litigation outside of the United States court system. Examples of such decisions include those addressing where the principal conduct at issue is centered for purposes of the Foreign Sovereign Immunities Act (\"FSLA\"); the presumption against extraterritorial application of United States statutory law; personal jurisdiction over foreign defendants; and the doctrine of forum non conveniens. I. Recent Precedent Demonstrating The High Court's Tendency To Keep Foreign Litigation At Bay A. OBB Personenverkehr AG v. Sachs and FSIA's Commercial-Activity Exception In OBB Personenverkehr AG v. Sachs, a California resident sued the Austrian state-owned railway for injuries that she sustained while attempting to board a train in Innsbruck, Austria. (4) She predicated her suit on a United States-based travel agent's Internet sale of a Eurail pass to her before she left for her trip to Europe. (5) Such passes \"are available only to non-Europeans, who may purchase them both directly from the Eurail Group and indirectly through a worldwide network of travel agents.\" (6) The Austrian governmental defendant raised FSIA, 28 U.S.C. [section][section] 1330, 1332, 1391(0- 1441(d), and 1602-11, as a defensive bar. (7) In response, the plaintiff argued (successfully in Ninth Circuit Court of Appeals) that her case satisfied FSIA's commercial-activity exception. (8) The commercial-activity exception abrogates sovereign immunity for suits \"based upon a commercial activity carried on in the United States by [a] foreign state.\" (9) The Sachs plaintiff contended that this exception allowed her suit to proceed","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"69 1","pages":"460-471"},"PeriodicalIF":0.0,"publicationDate":"2016-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66589003","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Proportionality Principle after the 2015 Amendments","authors":"Thomas Y. Allman","doi":"10.12690/0895-0016-83.3.241","DOIUrl":"https://doi.org/10.12690/0895-0016-83.3.241","url":null,"abstract":"Rule 26(b)(1) was revised as part of the 2015 Amendments to the Federal Rules of Civil Procedure (1) to promote \"proportional discovery\" (2) by the incorporation of proportionality factors, then located in Rule 26(b)(2)(C), into the text of (b)(1), with the factors slightly re-adjusted and a new factor added. (3) Rule 26(b)(2)(C)(iii) now requires a court to limit the frequency or extent of discovery when \"[iii] the burden or expense of the proposed discovery is outside the scope permitted bv Rule 26(b)(1).\" (4) The revised scope permits discovery of non-privileged information only if it is both \"relevant\" to the claims or defenses of a party and is also \"proportional to the needs\" of the case. The renewed emphasis on proportionality, enforced through active case management, reflects a desire to achieve the goals of Rule 1. As Chief Justice Roberts put it in his 2015 Year-End Report, the amended rule \"crystalizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality.\" (5) I. Cases Interpreting the New Rules The flood of post-December 1 decisions on the scope and implementation of Rule 26(b)(1) and related changes is best summarized in the following categories, although the cases themselves need to be consulted as well. A. Relevancy The relevancy of discovery sought to the claims or defenses continues to be the primary issue determining the \"scope\" of discovery. If the information sought is not relevant, courts need not focus on proportionality. For example, in LightSquared v. Deere & Co. the court acknowledged the amended rule but denied the discovery based on a lack of relevance. (6) Courts refuse to ask a party to \"run down a rabbit hole chasing irrelevant information on collateral matters.\" (7) The threshold for discovery relevancy under the amended rule remains relatively low, (8) in contrast to the enhanced showing of relevance required in some Circuits for purposes of securing an adverse inferences. (9) Some courts cite the terms of Federal Rules of Evidence 401, under which evidence is relevant if it has any tendency to make the existence of a fact of consequence more or less probable. (10) Moreover, as Judge Francis and others have held, relevance is still defined broadly by pre-December 1 case law, including the 1978 Supreme Court decision in Oppenheimer Fund v. Sanders, (11) which is often cited for that proposition. (12) B. Proportionality A limit on the scope of discovery, designed to guard against \"redundant or disproportionate discovery,\" has been part of the Federal Rules of Civil Procedure since 1983. (13) After the 2010 Duke Litigation Conference, the Rules Committee acted on its conviction that \"discovery in civil litigation would more often achieve the goals of Rule 1 through an increased emphasis on proportionality,\" enforced through active case management. (14) Although the initial Draft Committee Note described this as a \"change\" designed to \"limit the scope o","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"83 1","pages":"241-256"},"PeriodicalIF":0.0,"publicationDate":"2016-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66588269","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The New Normal: International Litigation and Its Implications for Trial Lawyers","authors":"Kurt B. Gerstner","doi":"10.12690/0895-0016-83.3.257","DOIUrl":"https://doi.org/10.12690/0895-0016-83.3.257","url":null,"abstract":"Tl 11 global economy is rapidly reshaping society. Technological advances have helped to spread information about different countries and cultures throughout the world, and this has been a catalyst for new business opportunities in new markets. Large companies have seen the benefits of global commerce for many years. But now, small and medium-sized companies are also seeing international markets as lucrative ways to expand their businesses.The legal profession is also being reshaped by the global economy. Following the lead of clients, in-house lawyers and outside law firms that support their clients' international business activities have had to become familiar with new areas of the law, different cultural and business norms and new ways of practicing law. Many law firms have gone even further, opening international offices to bring them closer to their international clients and to develop even greater expertise with international laws that affect their clients.Given the dramatic increase in international commerce that has taken place, it is no surprise that trial lawyers and their clients are also thinking globally when considering their litigation objectives. It is a natural progression; litigation that was first conducted locally within a single state or province expands to national multidistrict litigation within a particular country and then to international litigation. Litigation results from one country may be used as precedent in litigation conducted in other countries. Laws that are available in certain countries may create favorable results that can affect business activities elsewhere. Strategic lawsuits may be part of the business strategies of some companies, curbing the activities of competitors in certain jurisdictions or creating leverage for other business negotiations.Plaintiffs' lawyers have also learned that litigation in international venues can be a very profitable expansion of their domestic litigation activities. It has become very common for \"copycat\" litigation to spring up in other countries after first being developed in the United States. Consequently, clients may find themselves facing a repeat of litigation that they thought had concluded, with the litigation now transferred to a foreign jurisdiction.International litigation against tobacco companies provides a useful illustration of how litigation is now taking place on an international battlefield. This article uses international tobacco litigation as a case study for these trends.I. Tobacco Litigation HistoryLitigation against tobacco companies is not new. It has gone on for many decades, having begun in the United States at least as early as the 1950s. For decades the tobacco industry was very successful defending these cases, which contained significant causation and contributory negligence issues.Notwithstanding their setbacks, the plaintiffs' bar persisted in bringing new actions in many different states on behalf of individuals and in the form of class acti","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"83 1","pages":"257-263"},"PeriodicalIF":0.0,"publicationDate":"2016-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66588406","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Any Exposure Theory Round III: An Update on the State of the Case Law 2012-2016","authors":"W. L. Anderson, Kieran J. Tuckley","doi":"10.12690/0895-0016-83.3.264","DOIUrl":"https://doi.org/10.12690/0895-0016-83.3.264","url":null,"abstract":"IN 2006 a Pennsylvania state court judge unleashed, probably unwittingly, a dramatic change in the course of U.S. asbestos litigation by excluding the testimony of an asbestos plaintiff causation expert.1 The expert intended to testify that \"each and every exposure\" in a workplace or other environment was a cause of asbestos disease, specifically mesothelioma, and that the actual extent of exposure or \"dose\"' did not matter.2 The trial judge dissected that testimony, exposing its logical fallacies and scientific unreliability.3 Since that ruling, later upheld by the Pennsylvania Supreme Court in Betz v. PneumoAbex, LLCj4 dozens of courts nationwide have excluded or rejected various versions of the any exposure theory.5 In some states, such as Texas, those rulings have significantly reduced dockets or even turned the course of the litigation.*'Plaintiffs have responded to these setbacks in two ways. First, over the last few years plaintiffs have had their own success in obtaining a series of rulings admitting any exposure opinions, in the face of defense motions and in contradiction to the many courts that have excluded this testimony. Second, in part to avoid exclusion, many testifying experts for plaintiffs have stopped describing their theory as each and every exposure, and now call it the cumulative exposure theory. Some courts have treated this as more than a change in name and denied defense motions based on any exposure testimony as moot. The battle thus remains joined, but the science is unchanged and still fully supports defendants - the cumulative exposure theory is every bit as unscientific and illogical as the any exposure theory. Expert or sufficiency of evidence challenges to any or cumulative exposure testimony still remains a critical aspect of the current trend toward low exposure cases.In two prior articles, we have described the fallacies in the any exposure approach and the state of the case law.'' This article will not retrace that ground but instead provides an update since 2012 on the course of these decisions, shifts in plaintiffs' theory, and court rulings that defendants will need to confront. Defendants continue to win more of these motions than not, but they need to address the new rulings favoring plaintiffs and changes in the approach these experts have adopted.I. The Flawed Approach of the Any Exposure TheoryThe causation theory originally known as the single fiber theory and later as the any exposure theory is based on the assumption that no amount of workplace asbestos exposure is too small to be excluded from causation. Plaintiffs' experts who embrace their theory typically testify that \"each and every exposure to asbestos other than background exposures is cumulative and thus a substantial factor in causing mesothelioma.\" () The theory would thus capture, at its broadest use, virtually any contact with asbestos in a workplace or para-occupational activity (e.g., hobbies, home brake jobs, or home remodeling), rega","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"83 1","pages":"264-285"},"PeriodicalIF":0.0,"publicationDate":"2016-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66588434","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"No Cents in Doing It Again: The Importance of Disclosing Insurance Coverage at Discovery","authors":"Whit Carmon","doi":"10.12690/0895-0016-83.4.165","DOIUrl":"https://doi.org/10.12690/0895-0016-83.4.165","url":null,"abstract":"HENRY Ellis, the state of Georgia's second royal governor, is the attributed author of the famous admonition that one should not \"make a mountain of a mole-hill.\"1 2 The phrase offers a tenable explanation for the Supreme Court of Georgia's recent ruling in Ford Motor Co. v. Conleyg where the court attempted to convince subsequent interpreters of its opinion that \"[their] decision. . . should be not be read as breaking any new ground, but rather as simply affirming. . . the application of setded rules of law to a set of facts that may well be peculiar to Ford's ill-considered discovery practice.\"3 This is true in one respect, given the Conley decision reinforces a Georgia statute more than eighty years old; however, it cannot be denied that the court made a distinct and novel finding in this case.4 The court's decision: (1) clarified the requirements for an extraordinary motion for new trial that is not based on newly discovered evidence; (2) developed a novel sliding-scale approach to interpret the veracity of discovery responses for the purpose of granting such motions; and (3) found that vague responses can be treated-in some circumstances-as equivalent to overtly false responses.Though not quite as old as Governor Ellis' storied idiom, the basis of the Conley case stems from a longstanding law in Georgia that allows plaintiffs to question the jury to discover any relationships that may exist between the jury and the defendant's insurer.5 The plaintiff has a right to request this information from the defendant during discovery,* * * * * 6 and because this information is discoverable, the defendant is expected to give good faith responses to such requests.7Courts strongly disfavor discovery responses that do not provide a party with a clear answer and are intended to manipulate the requesting party into prematurely stopping their inquiry.8 * * * * In Conley, the Supreme Court recognized the vital impact of such discovery requests when it affirmed the plaintiff s extraordinary motion for new trial on the grounds that the plaintiff was intentionally misled by the defendant's response and was unduly prejudiced as a result. The court recognized that extraordinary motions for new trial are not ordinaiy remedies.1 However, it weighed this general aversion to extraordinary motions against the necessity of preserving an honest discovery process and, ultimately, chose to send a message to those who provide intentionally misleading responses that their misrepresentation will be revealed and the trial will be re-opened and re-tried as a result.11 This article reviews Conley to demonstrate the risks that counsel may face should they choose to conceal the availability of insurance coverage.I. Factual BackgroundIn December 2007, Renee and Jordan Conley filed a product liability suit against Ford Motor Company in the State Court of Cobb County. During discovery, the Conleys requested that Ford identify any insurance policies that would cover a possible judgme","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"83 1","pages":"165-180"},"PeriodicalIF":0.0,"publicationDate":"2016-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66588828","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"We've Only Just Begun: Determining Who Pays after the Approval of the NFL Concussion Settlement","authors":"J. Harris","doi":"10.12690/0895-0016-83.4.156","DOIUrl":"https://doi.org/10.12690/0895-0016-83.4.156","url":null,"abstract":"CHRONIC Traumatic Encephalophy (CTE) is a progressive degenerative disease of the brain found in athletes who have a history of repetitive brain trauma, including symptomatic concussions and asymptomatic subconcussive hits to the head. One of the leading groups studying the impact of CTE is the Boston University CTE Center. On its website, (1) the Center provides graphic evidence of CTE's impact on an individual's brain. As the Center points out, \"CTE has been known to affect boxers since the 1920s. However, recent reports have been published of neurophathologically confirmed CTE in retired professional football players and other athletes who have a history of repetitive brain trauma. This trauma triggers progressive degeneration of the brain tissue, including the build-up of an abnormal protein called tau. These changes in the brain can begin months, years, or even decades, after the last brain trauma or end of active athletic involvement. The brain degeneration is associated with memory loss, confusion, impaired judgment, impulse control problems, aggression, depression, and eventually progressive dementia.\" (2) It can also be associated with Parkinsonism, speech and gait abnormalities. These types of repetitive closed head injuries occur in a wide-variety of contact sports, including football, boxing, wrestling, rugby, hockey, lacrosse, soccer, and even skiing. In sports like football, hockey and boxing, players may experience multiple subconcussive hits over the course of a single season. (3) The Center for Disease Control estimates that anywhere from 1.6 million to 3.8 million concussions occur each year. Compared to all contact sports, football has the highest risk of concussions. The CDC estimates that there is a 75% chance of concussions for males playing football. (4) In the last five years, football-related concussions have become a hot topic, mostly due to the initiation of multiple lawsuits filed by former professional football players against the National Football League (\"NFL\"). The lawsuits filed against the NFL raise many legal implications, including the correct standard to apply; the potential liability of the NFL; the requirement of insurers to defend and indemnify the teams and/or the NFL; and whether there is a causal link between the concussions sustained by the players and the lingering effects on those retired players. In June 2012, more than 80 lawsuits including over 2,000 former NFL players were consolidated into one master complaint, which was filed in the federal District Court for the Eastern District of Pennsylvania, where the Honorable Judge Anita Brody will preside over the case. The Complaint contained twelve causes of action against various entities, including the NFL, alleging that the NFL fraudulently concealed the long-term effects of concussions (\"fraud\") and that the NFL failed to implement proper guidelines to decrease the risk of concussions (\"negligence\"). The Plaintiffs consist of numerous retired NFL p","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"83 1","pages":"156-164"},"PeriodicalIF":0.0,"publicationDate":"2016-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66588545","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}