Defense Counsel Journal articles from April 1999

Defense Counsel Journal archives from April 1999

Assault on protective orders.(President's Page)
April 1, 1999... Assault on Protective Orders THE continued viability of protective orders and confidentiality agreements is in jeopardy. There has been an increasing attack from some politicians, the media and members of the plaintiffs' bar against these...

International Association of Defense Counsel Tenets of Professionalism.
April 1, 1999... 1. We will conduct ourselves before the court in a manner which demonstrates respect for the law and preserves the decorum and integrity of the judicial process. 2. We recognize that professional courtesy is consistent with zealous...

Technology in the courtroom: computerized exhibits and how to present them.
April 1, 1999... The new and developing worm of models, animations, simulations and trial presentation systems enable litigators to be more efficient and effective AMERICAN life has become increasingly dependent on computer-based technology. Computers and...

Avoiding traps for the unwary: understanding U.S. government reimbursement rights.(personal injury in government-funded medical care)
April 1, 1999... Defense counsel have to be alert to the provisions of two federal statutes giving the government broad rights RELATIVELY few practitioners know that the United States government often has a right to share in the settlement of a personal...

Municipal corporations: proving improper motives of multiple member policymakers.
April 1, 1999... For liability to attach for discriminatory acts, plaintiffs should be required to prove that a majority board or council members acted with bad intentions MUNICIPAL corporations and other governmental entities are among the largest...

Pitfalls of multistate and international practice: avoiding the eye of the storm in Australia.(U.S. attorneys practicing in Australia)
April 1, 1999... Don't be fooled by common cultural and legal heritages, there are marked differences between the U.S. and Australian systems BECOMING a lawyer probably was not the first career choice for those who wanted to travel the world as a by-product...

Admissibility v. sufficiency: the dilemma of expert evidence in toxic tort cases.
April 1, 1999... If expert evidence without adequate epidemiological support is admitted, resulting unfair liability might drive needed products from the market PLAINTIFFS suing pharmaceutical and medical device manufacturers often find convincing a judge...

High-speed police chases and section 1983: why a definitive liability standard may not matter.
April 1, 1999... Although the standard least likely to be adopted by the Supreme Court provides a more feasible alternative, there are other practical solutions IN 1990, Sacramento police officer Murray Stapp flipped on his overhead lights and yelled to...

Protective orders and confidentiality agreements: they need protecting from legislators.
April 1, 1999... Willingness of parties to produce information leading to dispute resolution would be compromised if privacy is not protected HISTORICALLY, protective orders have worked well to balance the competing interests of open discovery and...

Fortuity, reinsurers and year 2000 problem: will these theories carry the day?
April 1, 1999... Some reinsurers believe that the fortuity or known loss doctrine will protect them from Y2K bug problems, but that may not be so BY NOW, almost everyone is aware of the Year 2000 or Y2K problem--the inability of some computer operating...

Breach of fiduciary duty and punitive damages.
April 1, 1999... AFTER years of defending professionals of all occupations, nothing much surprises us anymore. But for the uninitiated, particularly lawyers, the first time you are sued for malpractice can be a real shock. As legal malpractice claims have...

Insurer not vicariously liable for defense goof-ups.
April 1, 1999... A liability insurer is not vicariously liable for the conduct of an independent attorney it selects to defend an insured, the Texas Supreme Court held in State Farm Mutual Automobile Insurance Co. v. Traver, 980 S.W.2d 625 (1998). In so doing,...

Daubert principles apply beyond "scientific" experts.
April 1, 1999... Settling a debate that has divided courts since it decided Daubert v. Merrell Dow Pharmaceuticals Inc., 509, U.S. 579 (1993), the U.S. Supreme Court ruled that what it called the "general holding" of Daubert, which established the trial judge's...

Bad science beats good in bad carpet case.
April 1, 1999... Interpreting the U.S. Supreme Court's Daubert doctrine in an opinion by Chief Judge Becker, a panel of the Third Circuit affirmed a defense summary judgment in a product liability case, but the court also opined that some of the rulings below...

Fraud on FDA claim survives preemption.(Food and Drug Administration)
April 1, 1999... The federal preemption provisions of the Medical Device Amendments, 21 U.S.C. [sections] 360k(a), do not preclude private tortactions grounded on so-called fraud on the FDA claims, the Third Circuit held in In re Orthopedic Bone Screw Products...

McCarran-Ferguson Act No Defense Against RICO.
April 1, 1999... In Humana Inc. v. Forsyth, 119 S.Ct. 710 (1999), the U.S. Supreme Court rejected the idea that the McCarran-Ferguson Act works a sort of field preemption, but it also turned down the idea that Congress can regulate the "business of insurance"...

Insurer Can't Sue Insured for Reverse Bad Faith.
April 1, 1999... An insurer has no claim against its insured in tort for the breach of the covenant of good faith and fair dealing, the California Court of Appeal, Second District, decided in Agricultural Insurance Co. v. Superior Court (MKDG/Rhodes SC...

Attenuated Contacts Support Law Firm's Disqualification.
April 1, 1999... Conceding that the case was one of those "gray area" situations with no clear answers, the California Court of Appeal, First District, has held that a trial court exercised its discretion correctly in disqualifying a law firm from...

11th Amendment, Abstention Nip Lawyer's Federal Suit.
April 1, 1999... Indiana lawyer Zena D. Crenshaw didn't like it when the Disciplinary Commission of the Supreme Court of Indiana informed her that a grievance had been filed against her and then issued a subpoena seeking information about certain expenditures...

Dismissal Too Draconian for Evidence Spoliation.
April 1, 1999... Dismissing a products liability case because the defendant destroyed and disposed of evidence that could have supported the defendants' theory of the case was too harsh a sanction, the Second Circuit held in West v. Goodyear Tire & Rubber Co.,...

Accountants Owe Duty to Insurance Commissioner.
April 1, 1999... The state insurance commissioner is within the universe of those to whom an accounting firm owes a duty when making an audit of an insurance company to be submitted to the commissioner, the California Court of Appeal, Second District, held in...

Foreign Legal Consultant Rule Can't Support Discipline.
April 1, 1999... The New Jersey Supreme Court has found its foreign legal consultant rule poses so many unanswered questions that it can't support professional discipline against a New Jersey lawyer who formed what appeared to be a partnership with an Italian...

Mixed Results for Diet-Drug Medical Monitoring Claims.
April 1, 1999... Recognizing that a wide range of practical and helpful material appears in the newsletters prepared by committees of the International Association of Defense Counsel, this department highlights interesting topics covered in recent newsletters...

Excluding Documents that "Petition" the FDA.
April 1, 1999... Writing in the December issue of the newsletter of the Drug, Device and Biotech Committee, Kathryn M. Forgie-Evans of the Santa Monica office of Haight, Brown & Bonesteel discusses contacts between pharmaceutical, drug and medical device...

Indirect or Consequential Loss Exclusion: Coming Of Age.
April 1, 1999... Writing in the December issue of the newsletter of the Fidelity and Surety Committee, Charles H. Witherwax of D'Amato & Lynch, New York City, discusses a recent surety victory in the Kidder Peabody-Boesky affair: Aetna Casualty & Surety...

Can E-mail Be Protected by Attorney-client Privilege?
April 1, 1999... Writing in the October issue of the newsletter of the Advocacy, Practice and Procedure Committee, Daniel J. Scully Jr. and Mary Dirkes of Clark Hill, Detroit, discuss the question of e-mail and privilege: In today's society, attorneys, like...

Dismissal for Spoliation to Thwart Causation Defense.
April 1, 1999... Writing in the December issue of the newsletter of the Products Liability Committee, Alan D. Kaplan of Gallagher Gosseen Faller Kaplan & Crowley, Garden City, New York, notes dismissal for spoliation of causation evidence and updates case...