Defense Counsel Journal

This publication provides topical and scholarly writings on the law, including its development and reform and the practice of law in the civil defense and insurance fields.

Articles from Vol. 64, No. 4, October

Analysis Still Necessary
Case-by-case determination based on the principles underlying the privilege will resolve the applicability of the privilege, but a principled analysis still is necessary in many cases despite "clear" state rules and laws purportedly superseding the common...
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Assessing Admissibility of Nonscientific Expert Evidence under Federal Evidence Rule 702
A return to the general acceptance test of Frye would provide the best basis for courts to decide what nonscientific expert testimony should be heard A former actor arranges to purchase marijuana. Over the next three years, he completes many transactions...
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Capacity-Based, Sliding Scale Rule
The evolving public policy arguments for applying a capacity-based, sliding scale fault rule is discussed at length by the New Jersey Supreme Court in Cowan v. Doering, 545 A.2d 163 (1988). The court reviewed the issue of whether comparative negligence...
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Corporate Setting
These policies frequently come into play in the corporate setting. Questions most often arise when the attorney meets with a corporate representative. All courts will acknowledge that the corporation is entitled to avail itself of the attorney-client...
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Daubert, Pain, Evidence and Inference in Treating TMD
In writing the majority opinion of the U.S. Supreme Court's scientific evidence ruling in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), Justice Blackmun explained that subjective impressions are biased by the observer's model of...
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Different Approaches
Although the concepts considered by the various jurisdictions overlap, the decisions can be divided and categorized generally under three concepts: (1) the patient who intentionally committed suicide with a full appreciation of the consequences of his...
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General Rule
The general rule is that a health care provider has a duty to exercise reasonable care to prevent a patient from committing suicide. Plaintiffs must establish a deviation from the standard of care through expert testimony, which includes proof that the...
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Hillary's Conversations
The White House case presented a unique opportunity to review the application of the attorney-client privilege, as the information being subpoenaed was "all documents created during meetings attended by any attorney from the Office of Counsel to the...
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If It's Not "Scientific," It's Not Daubertizable
If It's Not "Scientific," It's Not Daubertizable Another panel of the Ninth Circuit has narrowed the application of the U.S. Supreme Court's Daubert standards only to "scientific" expert testimony, permitting an experienced mechanical and metallurgical...
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If the Butler Did It, the Butler Pays for It
Repeating that bon mot from a district judge's report and recommendation, the Fourth Circuit has affirmed an award to General Motors Corp. of $190,541 in legal costs against James E. Butler Jr., a Columbus, Georgia, plaintiff's attorney. Butler has represented...
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Improving the Jury Trial System
RETURNING from court recently on San Francisco's Bay Area Rapid Transit system, I looked up from my seat and observed the following promotional message posted on the car's wall: "Get stuck in ball game traffic and suddenly jury duty sounds appealing."...
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Increasing Fear of Future Injury Claims: Where Speculation Carries the Day
Plaintiffs are seeking damages for fear of future injury and the enhanced risk of future disease, along with the cost of medical monitoring CONSIDER these cases: * In West Virginia, a hospital patient who tested positive for HIV--the virus that causes...
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Insurers Skewered Twice by Fraud and Duty to Defend
Talk about ironical situations. Gregory S. Bodell, a lawyer, pleaded guilty to a criminal charge arising from his activities in using the U.S. mails to defraud insurance companies, yet the Ninth Circuit held that Bodell's malpractice insurer was obliged...
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Intentional Act of Suicide
At least one jurisdiction has held that the intentional act of suicide bars a plaintiff's recovery even where the trial court has found that the negligence of the health care providers proximately caused the suicide. In Champagne v. United States, 836...
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In the Wake of Kamilewicz: A Claim of Predatory Class Counsel Fees
There's a message that the core issue of the reasonableness of fees must be resolved with safeguards, not in a staged act "A class action in Alabama cost Dexter Kamilewicz $91.33 in attorney fees to recover $2.19 on the merits." That capsule summary...
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In the Wake of Kamilewicz: A Claim of Predatory Class Counsel Fees
There's a message that the core issue of the reasonableness of fees must be resolved with safeguards, not in a staged act "A class action in Alabama cost Dexter Kamilewicz $91.33 in attorney fees to recover $2.19 on the merits." That capsule summary...
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Liability of Professionals to Non-Clients: An Expanding and Tangling Web
Suits by third-party non-clients are increasing and many courts are finding liability where no duty is apparent IMAGINE you're the attorney for an insurance agent, who calls to tell you that she has been sued. She explains that months ago a new customer...
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Liability of Stockbrokers: Claims for Churning and Unsuitability
Statutes regulations and rules, as well as common law, apply to customers' claims, making defense counsel's job complex LIABILITY of financial advisors is a broad and complex area of the law. The category of financial advisors includes, among others,...
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Names Must Pay Up and Use English Courts and Law
Lloyd's was successful in the English Court of Appeal in enforcing the payment of premiums against names who rejected the Equitas contract, while the U.S. Court of Appeals for the Fifth Circuit joined five other circuits in upholding the forum selection...
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No End in Sight for Medical Monitoring Claims
"Medical monitoring" claims are becoming fertile ground for class action litigation. Courts are becoming increasingly receptive to such claims and have permitted plaintiffs to recover damages even where plaintiffs cannot establish a present physical...
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Opposing Party's Privileged or Confidential Documents
To know that we know what we know, and that we do not know what we do not know; that is true knowledge. --Confucius OVER the past few months, you have been fighting in a heated battle of high-stakes litigation with opposing counsel over discovery...
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Palimony Action Accrues When Payments Stop
Los Angeles lawyer-celebrity Johnnie L. Cochran Jr. has lost a statute of limitations argument in the California Court of Appeal, Second District. In the state that invented palimony actions, the court had to answer the question of when the action, which...
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Plaintiff as "Protected" Person
The legislative intent to protect mental patients in psychiatric hospitals was pivotal to the Supreme Court of Kentucky's decision to disallow application of contributory negligence and assumption of the risk defenses where a psychiatric hospital had...
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Restatement Third, Torts: Products Liability: What Hath the ALI Wrought?
In May 1997, the American Law Institute approved the Restatement Third, Torts: Products Liability. This article provides the black-letter text of the new restatement, based on the Proposed Final Draft (April 1, 1997), along with an introduction by James...
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Restatement Third, Torts: Products Liability; What Hath the ALI Wrought?
In May 1997, the American Law Institute approved the Restatement Third, Torts: Products Liability. This article provides the black-letter text of the new restatement, based on the Proposed Final Draft (April 1, 1997), along with an introduction by James...
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Rule 23 Amendments Dwindle Down to a Precious Two
Only two relatively minor amendments to Rule 23 of the Federal Rules of Civil Procedure were forwarded by the Civil Rules Advisory Committee to the U.S. Judicial Conference's Standing Committee on Rules of Practice and Procedure for future action and...
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Rule 23 Requirements
Under Rule 23(a)(3) and (4), the claims or defenses of the representative parties must be typical of the claims or defenses of the class, and the representative parties must fairly and adequately protect the interests of the class. Despite the settling...
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"Sprawling" Asbestos Class Loses Certification
Writing in the July issue of the Pharmaceutical, Medical Device and Biotechnology Committee newsletter, William F. Goodman Ill of Watkins & Eager, Jackson, Mississippi, discusses class actions under Rule 23: For the third decade, asbestos litigation...
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The Bottom Line
Historically, in medical malpractice actions involving a suicidal patient, the mental health care providers have borne the lion's share of responsibility for protecting their patients against foreseeable harm, even where the patient has not been declared...
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The Case for Across-the-Board Application of the Loss-of-Chance Doctrine
It makes jurisprudential and public policy sense for the doctrine to apply to better-than-even chance cases when plaintiffs cannot prove causation NEGLIGENCE law traditionally has required that findings of liability be predicated on a showing that defendants...
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The Idea's Good, but No, Thanks
While a U.S. Judicial Conference subcommittee likes the concept of a centrally maintained, publicly accessible database of court opinions, it doesn't have the answers to what it regards as some critical questions, and it does not favor the federal courts...
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The Internet and Jurisdiction: The Twain Meet-Sometimes
Does the maintenance of a presence on the Internet subject the proprietor of the website to personal jurisdiction wherever the website can be accessed? Courts are struggling with this question, and the answers seem to depend on how the website is used....
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The Mail Bag
TO THE EDITOR: As the author of "Compensation Neurosis Rides Again: A Practitioner's Guide to defending PTSD Claims," Defense Counsel Journal, October 1996, page 467, I write to clarify a reference to Toward the Development of Guidelines in Forensic...
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Using Case Law and Strategies to Defend Family and Medical Leave Act Claims
Does an employee meet the requirements of the FLMA for leave? A lot of issues and answers go into making that decision THE federal Family and Medical Leave Act (FMLA), 29 U.S.C. [subsections] 2601-2654, took effect for most employees on August 5, 1993....
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