LJN Newsletters

News from around the country for your review.

Each year, millions of Americans, including some children, suffer non-penetrating, or closed, head injuries. When lawsuits result, they involve complex medical, academic, and legal issues. When the plaintiff is a child, the defense attorney faces numerous additional challenges in defending the matter. Certain discovery tools are necessary to simplify and defend the pediatric traumatic brain injury (TBI) lawsuit. These tools, although also used in traditional personal injury cases, take on added significance because of the age of the plaintiff and the nature of the injury.

The old maxim, "the earlier the treatment, the better the outcome" has been a longtime staple in plaintiffs' collection of so-called "expert medical opinions." Let's face it -- the notion that earlier treatment is preferable, while imprecise, seems like a logical conclusion for most of us. However, the Eleventh Circuit's recent decision in McDowell v. Brown, 392 F.3d 1283 (11th Cir. 2004), establishes that such general medical principles, which are typically based on no more than the expert physician's common-sense and anecdotal experience, are far too speculative to overcome an evidentiary challenge pursuant to Daubert v. Merrell Dow Pharmeceuticals, Inc., 509 U.S. 579 (1993) and therefore fail to establish causation in a medical negligence case. This is particularly so in those cases where the defendant medical provider maintains that the plaintiff's unavoidable and unpredictable underlying condition -- and not an alleged delay in treatment -- caused the plaintiff's injury, such that the plaintiff would have experienced the same level of injury despite any alleged delay.

Highlights of the latest insurance cases from around the country.

In its April 2005 issue, ICLB published an article discussing the varying approaches courts have taken when addressing whether an insurer may conditionally defend its insured and later obtain reimbursement of defense costs if it is determined that a claim is outside the scope of coverage. See Pastor, Sherilyn: Insurers' Rights to Recoup Defense Costs, Insurance Coverage Law Bulletin, Vol. 4, No. 3 at p. 1 (Apr. 2005). As the issue was going to press, the Illinois Supreme Court issued an opinion rejecting the purported right of recoupment. See General Agents Ins. Co. of Am., Inc. v. Midwest Sporting Goods Co., No. 98814, 2005 WL 674685 (Ill. March 24, 2005). Noting that its position was the "minority" view, the court in General Agents declined to recognize the so-called "right of recoupment" both as a matter of contract law and a matter of policy. (For an in-depth review of the General Agents decision, see Case Notes at p. 7.) The court was right on both counts.

In light of the numerous high-profile securities fraud scandals over the last few years, insurers have more frequently sought to rescind insurance policies on the basis that the insureds supplied false information in applying for such policies, just as they did in misleading their investors, regulators and others. For example, insurers have pursued rescission of policies issued to WorldCom, HealthSouth, Adelphia, Tyco and Xerox. As a result, courts across the country have had more opportunities to clarify the law in this area. Although the law varies somewhat from state to state, judicial opinions on this subject have addressed issues that are fundamentally important to insurers.

Highlights of the latest product liability cases from around the country.

The poor trial lawyer sat dejected as he watched the mock jury deliberating his product liability case. He and his colleagues had spent the better part of 2 days presenting their evidence to a group especially chosen by a jury consultant to reflect the demographics of the actual jurors before whom the real dispute would shortly be tried.