Trial articles from October 2004

Trial archives from October 2004

Time to act.(protection of civil justice system)(President's Page)
October 1, 2004... I am reluctant to describe what will occur on November 2 as the most important election of our lifetime. The only reason is that we've already heard it so often before. Make no mistake: It is true. But I just can't say it anymore. What can...

Proposed e-discovery rules changes could help business litigants.
October 1, 2004... Federal court rule-makers are seeking comments from the bar regarding recently proposed new rules governing electronic discovery (for the published amendments, see box below). ATLA members can help preserve a fair discovery regime by filing...

Class action bill down, perhaps out, for 2004.
October 1, 2004... The Senate "dropped a class-action lawsuit bill that once seemed certain," noted an August 8 Washington Post article that reviewed the Senate's record in the 108th Congress to date. ATLA had worked tirelessly against the so-called Class...

Fraternities fall to stem tide of binge-drinking deaths, lawsuits claim.
October 1, 2004... Daniel Reardon, a freshman at the University of Maryland, attended a pledge party known as "Bid Night" at the Phi Sigma Kappa fraternity house in 2002. While there, he drank enough Jim Beam whiskey to fall unconscious onto the floor, and lay...

FDA approval preempts medical-device injury claims, Third Circuit says.
October 1, 2004... A divided Third Circuit panel has ruled 2-1 that the survivor of a patient injured by an FDA-approved medical device cannot sue the manufacturer under Pennsylvania law. (Horn v. Thoratec Corp., 376 F.3d 163 (3d Cir. 2004).) The 1976...

Silence of the experts: professional medical associations are taking aim at doctors who testify for plaintiffs injured by negligent medical care. Will the law protect doctors who speak out?
October 1, 2004... As the public call for medical malpractice legislative "reform" intensifies, a stealthy, more expedient sideline attack--aimed at the elimination of medical whistleblowers--is under way? Perhaps sensitive to the view that retaliation against...

How to prove management flaws in nursing homes: diligent discovery will generate documents that show systemic failures in a facility.
October 1, 2004... When management oversight fails, nursing homes may deliver dangerous health care. To prove management failure, plaintiff attorneys must show what happened and why. But the defense commonly tries to restrict the plaintiff's access to evidence...

Using tort law to secure patient dignity: often used as teaching tools for medical students, unauthorized pelvic exams erode patient rights. Litigation can reinstate them.
October 1, 2004... To the surprise of many people and the consternation of some medical school Faculty and students, a media firestorm erupted last year over teaching hospitals' practice of allowing medical students to perform pelvic exams on anesthetized...

Present a believable and compelling client: direct examination of the plaintiff is a critical moment in a trial. The jurors are watching closely. Make sure they see a likable, credible witness.
October 1, 2004... Jurors are often skeptical about what lawyers say during opening statements, closing remarks, or even cross-examination--unless their statements are backed tip with evidence. They are also skeptical of parties to a lawsuit, because the most...

'When the call comes, we answer'.(U.S. Supreme Court Justice Stephen Breyer and Kenneth Feinberg)
October 1, 2004... U.S. Supreme Court Justice Stephen Breyer and Kenneth Feinberg, special master of the September 11th Victim Compensation Fund, addressed Trial Lawyers Care volunteers and clients at ATLA's 2004 annual convention. This excerpt of their remarks...

Case closed? Not quite.(whether a person must identify themselves to police)
October 1, 2004... In Hiibel v. Sixth, Judicial District Court of Nevada, (1) the Supreme Court resolved a question that has long begged for an answer: Can a person stopped on reasonable suspicion of criminal activity (known as a Terry stop) be compelled, on pain...

Un-Making Law: The Conservative Campaign to Roll Back the Common Law.(Book Review)
October 1, 2004... Un-Making Law: The Conservative Campaign to Roll Back the Common Law Jay M. Feinman Beacon Press www.beacon.org 256 pp, $26 Grover Norquist, a Republican tax strategist, once told a reporter that his party's ultimate goal was to shrink...

Unwelcome and Unlawful: Sexual Harassment in the American Workplace.(Book Review)
October 1, 2004... Unwelcome and Unlawful: Sexual Harassment in the American Workplace Raymond F. Gregory Cornell University Press www.cornellpress.cornell.edu 288 pp., $45 cloth, $19.95 paper Whips, dildos, cigars... everyone has a favorite...

North Carolina is not Daubert territory, state high court holds.
October 1, 2004... The North Carolina Supreme Court has expressly rejected the federal standard for admissibility of scientific evidence established by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. (Howerton v. Arai Helmet, 597 S.E.2d 674...

Deaths from hospital errors double 1999 estimates.
October 1, 2004... Preventable hospital errors cause 195,000 U.S. deaths a year, twice as many as previously believed, according to a recent nationwide study of Medicare data. The new findings put hospital errors in third place among the leading causes of death...

Arizona extends doctors' legal duty.
October 1, 2004... In a case of first impression, the Arizona Supreme Court has ruled that a radiologist who examined an X-ray as part of a preemployment screening owed a duty of care to the patient to report abnormalities he found, even though he was not her...

Treating physicians must get expert fees for testifying.
October 1, 2004... Two judges in the Northern District of New York have ruled that a treating physician testifying at a deposition is due a "reasonable" expert fee, regardless of whether the doctor was designated an expert witness. (Lamere v. N.Y. State Office...

Sexual privacy is not a right in Eleventh Circuit, despite Lawrence.
October 1, 2004... The Eleventh Circuit has refused to recognize "sexual privacy" as a fundamental right under the Constitution, upholding an Alabama law banning the commercial sale of sexual devices. Last year in Lawrence v. Texas, the U.S. Supreme Court...

Mom can be 'Dad,' California court says.(same-sex couple breakups)
October 1, 2004... A former partner in a lesbian relationship can use the presumed-father provision of California's Uniform Parentage Act (UPA) to establish legal parentage, a state appeals court has ruled. But that holding was tempered by the court's decision to...