Defense Counsel Journal articles from January 1994

Defense Counsel Journal archives from January 1994

We need better judges. (President's Page)
January 1, 1994... AMID the heated controversy over the growing expense of litigation in America, there seems to be a major component of the equation that has been virtually ignored--the failure of the judiciary. Our adversary system fully expects personal...

Admissibility and reliability of expert scientific testimony after Daubert. (Daubert v. Merrell Dow Pharmaceuticals, Inc.)
January 1, 1994... THE PROLIFERATION of toxic tort litigation has strained the traditional tort concepts of causation. Litigants increasingly have to rely on expert testimony to prove, disprove or cast doubt on causation. Faced with the obligation to protect...

Role of toxicology in toxic tort litigation: establishing causation.
January 1, 1994... TOXICOLOGISTS research the nature of any adverse health effects produced by a chemical and assess the probability of occurrence of these adverse effects. In applying their science to toxic torts, toxicologists establish the known effects of the...

An epidemiologic view of causation: how it differs from the legal.
January 1, 1994... THE PROCESS of determining causation and, in fact, the ultimate need to determine causation is different in law and science. In law, the goal of fairness seems to be paramount. Decisions are required, no matter whether the true causes are known...

Sources of proof of causation in toxic tort cases.
January 1, 1994... ONE OF THE most difficult tasks facing courts and counsel in toxic tort cases is determining effective and admissible sources of proof of causation. Scientific sources are the fields of toxicology and epidemiology. What forms of proof from...

Federal standards for admissibility of expert evidence on causation.
January 1, 1994... THE Federal Rules of Evidence, enacted in 1975, govern the use of expert testimony in federal courts, and they have been adopted or adapted in many states. The Federal Rules were designed in part to broaden the standards for the admissibility...

Standard of proof for increased risk of disease or injury.
January 1, 1994... CLAIMS for the increased risk of future disease often are predicated on the assertion that the plaintiff has been exposed to a carcinogen and, as a result, has an increased risk of contracting some form of cancer. Historically, courts did not...

Third Restatement: new prescription for makers of drugs and medical devices. (Third Restatement of Torts (Draft))
January 1, 1994... SECTION 402A of the Restatement (Second) of Torts is a useful but aging item in need of repair. Recognizing this, the American Law Institute in 1991 undertook the momentous process of drafting what will evolve into the Restatement (Third) of...

Loss shifting: upstream common law indemnity in products liability.
January 1, 1994... THE DOCTRINE of common law indemnity is becoming increasingly important in modern tort law because of the development of strict liability for injuries caused by products that are "defective and unreasonably dangerous" to the user or consumer,...

Legal and ethical considerations for "defense within limits" policies.
January 1, 1994... A "wasting" or "defense within limits" policy, known as a DWL policy, is one which includes all defense costs and litigation expenses within the applicable limits of liability. DWL policies have long been utilized for directors and officers and...

Impact of ethical rules and other quasi-standards on standard of care. (legal malpractice)
January 1, 1994... A JURY'S determination of the propriety of the professional conduct of an attorney in a legal malpractice action requires a finding of fact that the defendant deviated from the standard of care applicable to attorneys. The evolution of that...

Medical staff credentialing: taking steps to avoid liability.
January 1, 1994... THERE are three means for evaluating the competence of physicians: 1. State licensing boards, through examinations, determine whether a physician has the minimum level of skill and competence to practice medicine. 2. Certification, by...

Annual survey of fidelity and surety law, 1993. (part 1)
January 1, 1994... I. PUBLIC CONSTRUCTION BONDS A. Miller Act Bonds None of the decisions involving Miller Act bonds during the first half of 1993 can be characterized as new or significant. On the other hand, several involve analyses and...

Neuropsychological testing in cases with normal neurological findings.
January 1, 1994... THERE has been a dramatic increase in suits in which plaintiffs claim significant brain damage with the only supporting expert testimony being that of a psychologist. Although these alleged mild brain injury cases have normal neurological test...

The Rejected: Sketches of the 16 Men Nominated for the Supreme Court but Not Confirmed by the Senate.
January 1, 1994... The tense moments during the process of filling a U.S. Supreme Court justice vacancy raise the question of how and why a given nominee succeeds. Tapping the historical record of the 16 men nominated for the Court but not confirmed by the Senate...

Objections at Trial.
January 1, 1994... The successful trial practice handbook, Objections at Trial, by Senior Circuit Judge Myron H. Bright and Prof. Ronald L. Carlson, has been published in a revised edition. It follows the practical format of the original edition. Evidentiary...