Defense Counsel Journal articles from April 2003

Defense Counsel Journal archives from April 2003

Constitution, crime, clergy: First Amendment implications of sexual abuse claims: church law and discipline, constitutional limitations, damage caps and statutes of limitations raise perplexing issues in these cases.
April 1, 2003... ALLEGATIONS of sexual abuse by priests have spread from a few isolated incidents in Boston to an international controversy that has shaken the Roman Catholic Church to its foundations. The molestation claims present a complex mix of legal,...

Insurance coverage issues arising from large exposure contaminated food claims: complex issues of fact and insurance law come into play when food goes bad, and claims for contamination and recall arise on several fronts.
April 1, 2003... TRY THESE cases on for insurance coverage: * 15 million pounds of processed chicken breasts shipped to various food processors and allegedly contaminated with Listeria. * Two million pounds of ground beef allegedly contaminated with...

Underlying exposures in mold claims: what are the damages? With mold litigation proliferating as the claimed "asbestos" of the new century, it's time to examine the potential damages and their viability.
April 1, 2003... MOLD IS NOT a new problem, but it would seem that property owners are suddenly discovering it everywhere, "lurking under sinks, behind wallpaper or under floorboards, and hearing from scientists that it can be a health hazard." (1) And, as the...

Recent important developments in the English law of confidence: while Michael Douglas's attempt to create a legal right to privacy has gotten most media focus, there are other significant cases.
April 1, 2003... WE LIVE in an age in which confidential information is of prime importance to business and in which there is an increasing storage and use of information relating to private individuals. The English law of confidence has been flexible, created...

Admissibility of evidence of subsequent remedial measures in strict liability: some state courts fail to follow Federal Rule 407 that this evidence is just as irrelevant in strict liability as in negligence actions.
April 1, 2003... THE RULE that evidence of subsequent remedial measures is not admissible in negligence actions for the purpose of proving a party's conduct emerged as a common law evidentiary rule during the mid-nineteenth century. (1) In 1975, it was codified...

Guide to defeating the heeding presumption in failure-to-warn cases: Defense counsel must oppose the distortion of Comment j's language into a presumption that users would read and heed instructions.
April 1, 2003... IN FAILURE-TO-WARN products liability cases, plaintiffs traditionally have been required to prove that defendants placed a product on the market without adequate warning or instruction, and that this failure to warn was a proximate cause of...

Overcoming attorney-client privilege and work product protection in bad-faith cases: bald assertions of bad faith should not be accepted by courts as a warrant to plaintiffs to rummage through claims files.
April 1, 2003... IN THE 1970s, a sequence of California decisions created a new tort--one for bad faith denial of an insurance claim. (1) In the beginning, insurance policies were treated like any other type of contract. Relying on the common law rule...

Using equity to set amount in controversy in class actions for injunctive relief: without opening the floodgates to removal of class actions to federal courts, limited use of the either, viewpoint rule would be salutary.
April 1, 2003... FROM THEIR first day in law school, students are taught the distinctions between law and equity. Nonetheless, many of them become accustomed to the notion that in the merger, equity took a backseat to law and stayed there. Noting this, the...