Defense counsel journal最新文献

{"title":"Removal of Class Actions: What Danger Lurks in Shady Grove","authors":"Martin A. Stern, Taylor E. Brett","doi":"10.12690/0161-8202-82.2.161","DOIUrl":"https://doi.org/10.12690/0161-8202-82.2.161","url":null,"abstract":"IN 2010, the Supreme Court of the United States delivered a landmark decision in Shady Grove Orthopedic Associates v. Allstate Insurance. (1) The case presented an extraordinarily complex combination of procedural issues, primarily concerning a crossroads between federal and state law in the context of class certification. The result was nothing short of bewildering. In a plurality opinion, a majority agreed that a New York statute prohibiting class actions in suits seeking penalties or statutory minimum damages was preempted by Rule 23 of the Federal Rules of Civil Procedure. (2) As a result, the petitioner's suit could proceed as a class action in federal court, while ironically it would not have been able to do so in state court. In the opening opinion, Justice Scalia gave a broad, sweeping application of Rule 23, finding that it \"unambiguously authorizes any plaintiff, in any federal civil proceeding, to maintain a class action if the Rules' prerequisites are met.\" (3) But while Justice Stevens agreed with the result in this particular case, he disagreed with Justice Scalia's rationale, opining that if a federal procedural rule \"would displace a state law that is procedural in the ordinary use of the term but is so intertwined with a state right or remedy that it functions to define the scope of the state-created right,\" then the federal procedural rule \"cannot govern\" such a case. (4) Following Shady Grove, depending upon the proclivity of a district court to apply Justice Scalia's rigid, FRCP-deferential rationale, or Justice Stevens's more pragmatic theory, a motion for class certification could have strikingly different odds of success. If a district court follows Justice Scalia's approach, then the decision to remove a putative class action to federal court would result in the loss of the very grounds--a state law prohibiting class certification--that would otherwise defeat class certification in state court. However, should a district court follow Justice Stevens's approach, that same state law might apply even after removal, depending on whether it is so intertwined with the ability to proceed as a class action that it functions to define the scope of this right. Thus, before removing a putative class action, defense attorneys must be wary of the hidden dangers that lurk in the wake of Shady Grove. Part I of this Article will discuss the Shady Grove decision in further detail, outlining the factual and procedural background, the majority's judgment, and the divergence between Justice Scalia and Justice Stevens on the issue of whether Rule 23 preempts every state law regarding class actions. Part II will examine the practical effect that judges employing Justice Scalia's rationale will have on the future of class actions, and will analyze recent court decisions affected by this reasoning. Part III will explore the practical effect that courts using Justice Stevens's approach will have in forthcoming class action cases, and outline a ser","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"82 1","pages":"161-171"},"PeriodicalIF":0.0,"publicationDate":"2015-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66587012","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":"Proving the Negative: On the Admissibility of the Lack of Prior Accidents in A Products Liability Case","authors":"G. L. Johnson","doi":"10.12690/0161-8202-82.2.131","DOIUrl":"https://doi.org/10.12690/0161-8202-82.2.131","url":null,"abstract":"MANY of us have encountered the situation where the plaintiff is trying to introduce evidence of prior accidents involving the use of our client's products. (1) Less frequently, however, do we encounter the opportunity to convince a court that we should be allowed to present to the jury evidence of the lack of prior accidents from the use of our client's products. The purpose of this article is to provide some guidance on how to persuade the court to allow you to provide this helpful information to a jury. Generally, all relevant evidence is admissible. (2) Evidence is relevant if it has any tendency to make the existence of a material fact more or less probable than it would be without the evidence. (3) However, even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. (4) Our trial courts have wrestled with the troubling issue of the \"relevance\" and \"prejudice\" of the admissibility of the lack of prior accidents, first in negligence cases and then in products liability cases, for over a hundred years. In 1891, in Langworthy v. Green Township, (5) the Supreme Court of Michigan held that the lower court properly excluded testimony as to whether the witness had ever known of anyone being injured previously upon an obstruction, citing to an earlier Illinois case, Hodges v. Bearse. (6) In Hodges, a lower court's refusal to admit evidence of an elevator's accident-free history was upheld, with the court finding that such evidence was immaterial because it would not rebut evidence of negligent construction and operation and because it would distract the jury with collateral issues. In this article, we will review the salient case law and identify those issues that have proven crucial to the admissibility of the lack of prior, similar accidents. We will first examine an exemplar case, and then review the foundational requirements courts have imposed on the admissibility of evidence concerning lack of prior accidents. I. Admitting the Negative Evidence (7) In Pandit v. American Honda Motor Co., (8) the plaintiff was traveling on Interstate 70 through western Kansas when the headlights on the Honda Accord driven by her husband began to twitch and gradually to dim. Plaintiff's husband could detect no warning lights being activated on the instrument panel and he mentioned the problem to his brother, traveling in the backseat with his wife, and the two men began to look for an exit from the interstate. The headlights suddenly became so dim that the plaintiff's husband was unable to see the road. He reduced the speed of the Accord and began to pull off to the side of the road when the engine stalled and the charge warning light activated. As these things go, the car came to a stop in the right-hand lane and was struck from behind by a Ford Bronco, severely injuring the plaintiff and killing her in-laws. Plaintiff sued the driver of the Bronco a","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"82 1","pages":"131-142"},"PeriodicalIF":0.0,"publicationDate":"2015-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66586728","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":"\"I'm Sorry\" as Evidence? Why the Federal Rules of Evidence Should Include a New Specialized Relevance Rule to Protect Physicians","authors":"Lauren Gailey","doi":"10.12690/0161-8202-82.2.172","DOIUrl":"https://doi.org/10.12690/0161-8202-82.2.172","url":null,"abstract":"IN March 2013, Marek Lapinski, a healthy twenty-four-year-old software developer and entrepreneur, reported to the Temecula, California office of Dr. Steven Paul, an oral surgeon, to have his wisdom teeth extracted. (1) Mr. Lapinski did not survive the routine procedure. (2) According to a patient care report, he awoke, coughing, during the operation, was sedated with propofol, and stopped breathing. (3) He died three days later at the hospital. (4) April Lapinski, the patient's mother, said of Dr. Paul, who was present at the hospital, \"[H]e said he was sorry.\" (5) After an autopsy pointed to an anesthesia overdose as the cause of death, (6) the Lapinski family filed a medical malpractice suit against Dr. Paul in Los Angeles County on March 19, 2014. (7) A September 2015 trial date has been set. (8) As the trial approaches, an interesting question could arise as to the legal consequences of Dr. Paul's apology to Mrs. Lapinski. Could it be used as evidence of Dr. Paul's negligence, despite the fact that it could just as likely have been nothing more than an expression of empathy intended to comfort the grieving family? The use of apologies as evidence of liability is a recurring issue in medical malpractice litigation. The Federal Rules of Evidence currently contain no provision barring physicians' apologies (9) to patients from being admitted as evidence of fault. Whether state law offers any protection varies from jurisdiction to jurisdiction, and even where some degree of protection is offered, whether those protections apply depends on the content of the apology in question. This article argues that such protection is necessary, and because the underlying policy of protecting apologies is consistent with the rationales supporting the specialized relevance rules that are already included in the Federal Rules of Evidence, an additional rule should be added to govern the admissibility of physicians' apologies. Because many states' evidence rules are modeled after the Federal Rules, such an addition would be a persuasive and effective means of demonstrating the federal government's commitment to fostering the doctor-patient relationship--and of encouraging the states to do the same. I. The Federal Rules of Evidence and the Specialized Relevance Rules A. The Role of the Federal Rules of Evidence The Federal Rules of Evidence, which took effect on June 1, 1975, (10) were the product of a thirteen-year process initiated by then-Chief Justice Earl Warren to draft and enact uniform rules of evidence for use by the federal courts. (11) Rather than attempting to codify the federal statutory and judge-made law of evidence that existed at the time, the drafters of the Rules instead looked for inspiration to the states' efforts to codify their own evidentiary rules. (12) With the enactment of the Federal Rules of Evidence the federal government again took the lead; by 2003, forty-two states had statutory evidence codes or court rules modeled after the Fede","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"82 1","pages":"172-184"},"PeriodicalIF":0.0,"publicationDate":"2015-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66586670","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":"President's Page: IADC Global Connection: A 95-Year-Old Evolves","authors":"T. Haston","doi":"10.12690/0895-0016-82.2.123","DOIUrl":"https://doi.org/10.12690/0895-0016-82.2.123","url":null,"abstract":"Be brave. Take risks. Nothing can substitute experience.Paulo Coelho - Brazilian authorIn our 95th year, the IADC is enjoying a year of firsts. Our willingness to adapt and evolve is why we have and why we remain the premier global legal organization for attorneys devoted to the representation of corporate and insurance interests. The secret of success of any organization - or individual for that matter - is the ability to adapt to change, to embrace that change, and to leverage that change into success while staying true to the fundamentals that allowed the organization or individual to succeed in the years before. The IADC has lived that truth this year, and I hope you have or will soon be able to witness the exciting and dynamic evolution of the organization at one of our many events.I am composing this article sitting in the Guarulhos International Airport in Sao Paulo, Brazil after just having attended the lADC's inaugural Latin America Regional Meeting. If, like me before this visit, you have not had the great pleasure of enjoying the warmth and hospitality of our members in the region, you must consider coming here very soon. Like the IADC, Latin America is rapidly evolving with a vibrant energy, while honoring its proud heritage. At our inaugural meeting, we enjoyed the company of our members and guests from Chile, Argentina, Brazil, Uruguay, Germany, France, and the United States. We all enjoyed socializing and finding the common denominators that bind us all, while learning about our unique cultures and interests. We also benefited from a series of presentations on the rapid changes in class action and arbitration law in Chile, Peru, Argentina, and Brazil. Our hosts, Fernando Serec and his many partners at the TozziniFreire firm, ensured a successful inaugural with their expert hospitality.But Sao Paulo was not the \"first first\" for our year. It began in Sydney. In October, we held our inaugural meeting for members from Australia and New Zealand. Just as in Sao Paulo, our members enjoyed a day of signature fellowship and education about recent legal developments in the region. Our Aussie hosts, International Committee Chair Colin Loveday and former Board member Stuart Clark, executed a perfect inaugural, and I look forward to our Australian/New Zealand Regional Meeting next year down the Hume Highway in Melbourne.In both South America and Australia, we have begun a tradition of going to our members on each of their continents that I look forward to seeing continue into the next 100 years of our organization's proud history.Earlier this month, we also supported the U.S. Chamber of Commerce's Institute for Legal Reform and the Canadian Chamber of Commerce's inaugural event on Class Action Reform in Toronto, Canada. …","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"82 1","pages":"123-124"},"PeriodicalIF":0.0,"publicationDate":"2015-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66587728","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":"Avoiding the Urkel Defense (Did I Do That?): How Safeco Has (and Has Not) Begun to Provide an Affirmative Defense against Statutory Willfulness","authors":"S. L. Owens","doi":"10.12690/IADC-15-0005","DOIUrl":"https://doi.org/10.12690/IADC-15-0005","url":null,"abstract":"\"DID I do that?\" is a popular catchphrase used by American sitcom character, Steve Urkel.1 Urkel was a clumsy but wellintentioned character on the sit-com Family Matters. At the center of the show's playful gags were Urkel's genius inventions and klutz performances.2 These gags usually caused Urkel to break furniture, injure bystanders, and try the patience of his neighbors, the Winslow family. Translated into litigious American legal culture, Urkel's highly risky conduct was undoubtedly reckless.3 Federal common law recklessness holds defendants civilly liable for creating \"an unjustifiably high risk of harm that is either known or so obvious that it should be known.\"4 Unlike Urkel, defendants must compensate plaintiffs who are injured by their reckless conduct.5In Safeco Insurance Company of Am. v. Burr6 the United States Supreme Court held that when a statute left undefined the standard of willfulness, the objective common law recklessness standard should be applied. In Safeco, the Court applied this objective standard to determine whether insurance companies had engaged in conduct that was reckless under the Fair Credit Reporting Act (\"FCRA\").7 A class of auto insurance applicants argued that defendant insurers violated FCRA by willfully failing to provide them with notice of an adverse action as required by the FCRA. The Court disagreed, holding that notice provisions under the FCRA were ambiguous about timelines. Legislative history revealed that Congress had not proposed to require insurance companies to notify applicants of unforeseen adverse actions at the time of their initial application.8 Because the defendant insurance companies interpreted the FCRA's ambiguous statute reasonably, they did not willfully violate the law.At first blush, Safeco appears to be a win for defendants eager to prevail against statutory recklessness, as the Supreme Court has created an affirmative defense that would shift the burden back onto plaintiffs who allege willfulness once defendants have met an objective standard. This article cautions defendants, however, against prematurely crafting a defense around an aggressive reading of Safeco in an attempt to quickly dispose of claims for civil statutory recklessness. Although Plaintiffs must show evidence of a defendant's objectively risky conduct, lurking beneath these cases is the concern that Safeco may have permitted what this article calls the \"Urkel Defense.\" Under the Urkel Defense, regardless whether a defendant knowingly engaged in wrongful conduct, a defendant may attempt to escape liability by showing objectively reasonable conduct.In circumstances beyond the FCRA, circuit courts have hesitated or even refused to apply Safeco if this would give rise to the Urkel Defense. For example, most other courts have declined to follow the Eighth Circuit, which dismissed claims against defendants under Safeco as early as the pleadings when they were accused of willfully violating the False Claims Act (\"FCA\"),9","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"82 1","pages":"51-67"},"PeriodicalIF":0.0,"publicationDate":"2015-01-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66590218","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 Guide through the Medicare Morass: Medicare Fundamentals and Best Practices for Liability Insurers and Their Attorneys","authors":"Christopher R. Christensen, Allison M. Surcouf","doi":"10.12690/IADC-15-001","DOIUrl":"https://doi.org/10.12690/IADC-15-001","url":null,"abstract":"SINCE its enactment, the mandatory Medicare reporting obligations of companies and insurers under U.S. federal law, i.e., Section 111 of the Medicare and Medicaid SCHIP Extension Act (\"MMSEA\") of 2007, have been discussed extensively. (1) From an insurer's perspective, the laws are opaque and onerous. This article provides an overview of best practices under the Medicare laws to ensure that the obligations of both insurers and their attorneys are met. The article also addresses how different insurance arrangements change the Medicare reporting requirements and, in some instances, avoid them altogether. I. The Medicare Program Medicare is the federal government insurance program available to U.S. citizens and permanent residents who are 65 or older, have certain medical conditions or have received Social Security disability benefits for 24 months. (2) To understand Section 111 and how it has changed the nature of personal injury litigation and claims handling, some background information is helpful. The Medicare program was signed into law in 1965 but, in response to funding concerns, was amended in 1980 by the Medicare Secondary Payer Act (\"MSP Act\"). The MSP Act provided that Medicare may not pay for treatment or services provided to a Medicare beneficiary if another entity is legally or contractually obligated to provide such coverage. (3) The entity obligated for payment is known as the \"primary plan\" or \"primary payer.\" Medicare is, thus, a \"secondary payer.\" In the context of liability insurance, Medicare makes so-called \"conditional payments\" on behalf of the beneficiary for medical treatment or services pending final settlement of a liability claim with the expectation of reimbursement from the liability insurer (also called the primary payer). However, the MSP Act lacked sufficient enforcement mechanisms to ascertain when reimbursement was possible from a primary payer and thus was unable to effectively ensure reimbursement. Accordingly, on December 29, 2007, the Medicare program was again amended in an effort to reduce government spending by enabling the agency responsible for administering Medicare (the Centers for Medicare and Medicaid Services or \"CMS\") to better determine when another entity is responsible for the medical expenses of a Medicare beneficiary and ensure reimbursement for those Medicare-covered items and services that another entity is required to cover. This amendment has been dubbed \"Section 111 and requires any entity who makes a payment to a person eligible for Medicare arising out of a personal injury claim to report that payment to CMS. It is important to keep in mind that reporting is triggered by Medicare eligibility, not receipt of Medicare benefits. Reporting is done quarterly by submitting an electronic file on the Coordinator of Benefits Secure Website. (4) The Coordinator of Benefits Contractor (\"COBC\") is a branch of CMS that is responsible for coordinating whether Medicare is entitled to reimbursement for ","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"82 1","pages":"42-50"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66590303","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":"Too Good to Last? Will the FDA'S Proposed Rule Put an End to Generic Drug Preemption under Mensing and Bartlett?","authors":"Tony M. Diab","doi":"10.12690/IADC-15-002","DOIUrl":"https://doi.org/10.12690/IADC-15-002","url":null,"abstract":"UNDER Mensing and Bartlett, state law generic drug product liability claims sounding in failure to warn are currently preempted. Simply put, because generic drug manufacturers cannot simultaneously comply with federal drug labeling regulations and state failure to warn laws, the state laws give way. A proposed FDA rule, however, may soon put an end to preemption of claims arising out of generic drug labels. On November 13, 2013, the Food and Drug Administration (\"FDA\") proposed a rule that would reestablish failure to warn liability for generic drug manufacturers. The proposed rule would allow generic drug manufacturers to participate in the \"changes being effected\" (\"CBE\") process, thereby closing the gap between PLIVA, Inc. v. Mensing (1) and Wyeth v. Levine. (2) In Mensing, the Supreme Court held failure to warn claims against generic drug manufacturers preempted as a result of the duty of sameness applicable to generic drug labels based on the abbreviated new drug application (\"ANDA\") regulations. In essence, generic drug manufacturers are required to use the same language as in the warning labels of the reference listed drug (\"RLD\") identified by the FDA (generally, the brand-name drug). (3) This decision was strengthened by Mutual Pharmaceutical Company v. Bartlett, (4) which extended Mensing to cover design defect claims against generic drug manufacturers. In Wyeth, the Supreme Court found that the CBE process, which allows brand drug manufacturers the ability to unilaterally change a drug's label pending FDA review of a proposed labeling change, precluded a finding of preemption in the context of failure to warn claims. (5) The Supreme Court reasoned that brand drug manufacturers were not bound by federal law to promulgate a defective warning label, but rather had the ability to alter a warning label to comply with the state law requirements by using the CBE process. (6) The FDA's proposed rule seeks to close the gap between Mensing/Bartlett and Wyeth by including ANDA holders (generic drug manufacturers) in the CBE process--essentially imposing increased obligations on the generic manufacturers. Such a rule, however, may run afoul of the duty of sameness required by the ANDA process as set forth in Hatch-Waxman Amendments, (7) and thus lies beyond the power of the FDA. This article analyzes the FDA's attempt to undermine Mensing and Bartlett and whether such an effort is likely to succeed. I. Wyeth v. Levine The Supreme Court first reviewed the question of federal preemption of state law failure to warn claims in Wyeth v. Levine. (8) There, the question presented was whether state law failure to warn claims were preempted by a drug manufacturer's duty to use only the FDA-approved warning label. (9) On April 7, 2000, Diane Levine received an injectable form of Demerol and Phenergan from her physician as treatment for migraine headaches. (10) Levine returned for a second treatment that same day, and \"[t]his time, the physician assistant ad","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"82 1","pages":"28-41"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66590974","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":"Protecting the Motor Carrier Against the Threat of Punitive Damages: An Updated Case Review","authors":"Donna L. Burden, A. Mausolf","doi":"10.12690/IADC-15-003","DOIUrl":"https://doi.org/10.12690/IADC-15-003","url":null,"abstract":"HISTORICALLY, the case law regarding the issue of punitive damages against trucking companies stemming from the accidents of its drivers has been mostly favorable to trucking companies. This makes sense considering the extremely high standards courts impose before they will award punitive damages. The standard is typically wanton or reckless behavior. (1) Furthermore, a majority of jurisdictions have determined that punitive damages may not be awarded against an employer if the employer is only vicariously responsible for the employee's conduct. (2) For an employer to be liable for punitive damages for conduct arising out of the acts of one of its employees, the employer must have authorized or ratified its employee's wrongful conduct. (3) In most cases where a truck driver gets into an accident, there is absolutely no proof to support a finding that the defendant driver himself acted in such a manner to warrant punitive damages. It is even more difficult for a plaintiff to demonstrate that an employer itself acted with the requisite conduct to warrant punitive damages. Because of this high standard, plaintiffs' attorneys are getting more creative. A quick Google search of \"punitive damages in trucking cases\" yields results of many plaintiffs' attorney websites stressing the importance of seeking punitive damages in trucking cases and offering advice about the means in which the plaintiffs' bar can do so. During our research for this article, we even stumbled across the treatise \"Litigating Truck Accident Cases,\" a three volume set that offers substantive guidance to plaintiffs' attorneys to handle personal injury suits involving trucking companies. One of the documents in this volume is a form that provides an outline for a motion in opposition to a motion for summary judgment on the issue of punitive damages. The motion details various examples of specific details that might be used to defeat the trucking company's motion for summary judgment, such as Department of Transportation and Federal Motor Carrier Safety Administration (\"FMCSA\") violations. In the typical trucking case, the plaintiff alleges reckless conduct against the driver, the driver's employer, and any other party the plaintiff can assert a cause of action against. The popular mindset is to allege punitive damages and hope that discovery will offer facts to support the award. If that particular set of facts does not justify such an award, then a defense attorney typically will move to have the punitive damages claim dismissed, and \"no harm, no foul\" in the eyes of the plaintiffs attorney. With this behavior in mind, it is increasingly important for defense attorneys to move to have the claim for punitive damages dismissed, but it is equally important that the trucking companies themselves stay vigilant. Companies themselves must ensure that, when the plaintiffs attorney begins sifting through the company's discovery responses, there is absolutely nothing there that would prevent t","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"82 1","pages":"13-27"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66590599","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":"President's Page: IADC Global Connection: For Law. For Life","authors":"T. Haston","doi":"10.12690/0895-0016-81.4.319","DOIUrl":"https://doi.org/10.12690/0895-0016-81.4.319","url":null,"abstract":"The great Nelson Mandela once said, \"There is no passion to be found playing small - in settling for a life that is less than the one you are capable of living. \" Members of the IADC are not known for \"playing small\" and enjoy a Global Connection that facilitates a more rewarding legal practice and life for themselves and their families. With this year's theme - IADC Global Connection: For Law. For Life. - we intend to further enhance the unique value of membership with events on each of our membership's five continents.Roughly a decade ago, Thomas Friedman authored The World is Flat. His book's premise - that rapidly evolving technology allowed greater economic and social opportunity for those connected globally - is truer today than ever before. The IADC Global Connection offers its members that very set of opportunities contemplated by Friedman. When your client needs an attorney in Asia, Australia, Europe, South America or North America, you have reliable counsel to provide them with your peer members. Similarly, when your peer members need reliable counsel in your hometown, your membership provides you an opportunity to serve new and different clients in need. Together with the cutting edge continuing legal education offered in our various forums, this is the IADC Global Connection: For Law at work.As importantly, and as members know, the IADC Global Connection facilitates meaningful friendships between our members and their families. My family and I have personally enjoyed spending time in the homes and hometowns of our fellow IADC friends throughout North America, England, France, the Netherlands, Germany, Austria, Belgium and China. These friendships and the experiences they have offered have greatly enriched the lives of my family and represent the IADC Global Connection: For Life at work.The IADC's vibrant mix of leading-edge ideas, spectacular social events and world-class members and families were on full display at our Annual Meeting in Vienna, Austria in July and served as a terrific foundation for the year ahead. Like Vienna, our programming and events spoke to past, present and future. Ambassador Jack Matlock, the last U.S. Ambassador to the U.S.S.R., served as a witness to history and shared his perspective for our benefit. Austria's Justice Minister Wolfgang Brandstetter shared his views with our members at our Austrian Theme Party. Professor Richard Susskind provided an insightful presentation on the future of legal practice and how technology is rapidly changing the delivery of legal services, which he expands upon in this issue of the DCJ. Finally, and most spectacularly, our closing Gala at the Hofburg Imperial Palace will not be forgotten by any of our member attendees. Many thanks to our Viennese members Daniela Karollus-Bruner and Bernhard Hainz for arranging to have the world-famous opera singer, Michael Schade, perform. …","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"81 1","pages":"319-320"},"PeriodicalIF":0.0,"publicationDate":"2014-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66587290","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":"Becoming Masters of the Universe: The How To's of Multi-Jurisdictional Product Liability Litigation","authors":"A. Hughes","doi":"10.12690/IADC-14-019","DOIUrl":"https://doi.org/10.12690/IADC-14-019","url":null,"abstract":"IN an increasingly globalized and connected world, purely \"locally made\" products are becoming increasingly rare. These days, most products are developed in a synergetic process where component parts are sourced from a variety of countries, and products are assembled or manufactured elsewhere and sold around the world. This presents a web of unique legal, practical and strategic challenges for product liability litigation, as the potential harm caused by a defective product is not quarantined within convenient jurisdictional boundaries. This brings a variety of risks to potential defendants as parties, courts and rules (of law and process) seek to overcome traditional jurisdictional constraints and effectively and fairly manage resulting litigation.In any given matter, the question of how defendants can best address the challenges of multi-jurisdictional product liability proceedings requires a nuanced understanding of the relevant laws in each jurisdiction in play, as well as an appreciation for the ways in which those laws may be implemented (or not) and may complement or clash with one another. This article explores some of these issues, with a focus on practical measures which can be taken to prevent, prepare for and conduct international multi-jurisdictional product liability litigation. These measures provide a framework for minimizing the financial, reputational and other risks facing companies that are exposed to large-scale, international litigation, which can be tailored depending on the various jurisdictions in play at the relevant time.I. Duplicative ProceedingsA. Risks Associated with Duplicative ProceedingsThere is a large scope for duplicity of proceedings in multi-jurisdictional litigation. As US District Court judge David F. Levi, Chair of the Advisory Committee on Civil Rules, recently explained:overlapping and duplicating class actions in federal and state court create serious problems that: (a) threaten the resolution and setdement of such actions on terms that are fair to class members, (b) defeat appropriate judicial supervision, (c) waste judicial resources, (d) lead to forum shopping, (e) burden litigants with the expenses and burdens of multiple litigation of the same issues, and (f) place conscientious counsel at a potential disadvantage.1This problem also exists in Australia and Canada, where different state and federal jurisdictions have their own unique procedural requirements,2 * as well as within Europe.1All this said, the relatively superficial differences that exist within the various courts and frameworks of the United States, Canada or Australia, or within Europe or the E.U. arguably pale in comparison to fundamental divergences between the representative regimes in the United States and, for example, France. While globalization has mitigated distances between states and led to a sharing of legal principles between nations, this trend has not manifested in any sort of harmonized legal procedure. Corporate defend","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"81 1","pages":"346-357"},"PeriodicalIF":0.0,"publicationDate":"2014-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66589839","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}