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With the recent adoption of new Americans with Disabilities Act ("ADA") Accessibility Guidelines, it seems likely that real property owners and managers will soon see an increase in the number of ADA-based lawsuits as both private plaintiffs and the Department of Justice seek to enforce compliance with the various changes and new provisions. This article provides a basic guide to some of the more important elements of this type of litigation, particularly cases brought by private plaintiffs.
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For everything you ever wanted to know about <i>Daubert</i>, visit <i>www.daubertontheweb.com.</i> The home page will direct you to a variety of links, which include: "Source" (the <i>Daubert</i> opinion); "Progeny" (Supreme Court cases interpreting <i>Daubert</i>); "Procedure" (cases resolving challenges to <i>Daubert</i>); "Fields" (decisions by fields of expertise); "Substance" (the <i>Daubert</i> worldview); "Circuits" (more than 650 appellate decisions); "States" (selected state decisions); "Tactics" (things to try); "User Forum" (to ask a question or state a view); and a Blog.
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Highlights of the latest product liability cases from around the country.
The use of digital cameras to create and preserve images has evolved from an expensive, often specialized process to a common practice embraced by the general public. As the use of digital photography has become commonplace, so too are digital photographs being increasingly offered as evidence. Courts generally have accepted digital photographs for the same purposes as traditional photographs: to support testimony and sometimes to take its place as "pictorial testimony." Digital photographs, however, are far more easily altered and manipulated than traditional film photographs, and such changes may be more difficult, if not impossible, to detect.
We have all been there. That settlement conference that you think is going to resolve the case does just the opposite. Opposing counsel's parting words are "we'll see what a jury has to say about that." So there you are, a few weeks before trial with a to-do list that has just increased tenfold. Motions <i>in limine</i>, witness lists, exhibit lists, jury questionnaires and trial briefs all need to be prepared in the coming weeks. The facts of your case begin to play over and over again in your mind like a waking dream (or nightmare).
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The Supreme Court's decision in <i>State Farm Mutual Automobile Insurance Co. v. Campbell</i>, 538 U.S. 408 (2003), addressing punitive damage awards was a culminating moment in a decade of high court jurisprudence reigning in multimillion dollar runaway awards. Following the decision, there was a flurry of activity by the Supreme Court itself, and in many lower courts, to remand, conform, and examine current cases in light of the Court's new guidance. With several exceptions where the compensatory damages are nominal or the conduct is particularly reprehensible, court after court is quoting the high court's language regarding ratios and remanding or reducing awards with double-digit ratios. The reasons vary, but include factors such as whether the plaintiff suffered physical or economic injury, the degree of the defendant's determined reprehensibility, wealth, and the ratio of punitive to compensatory damages. In general, the most successful strategies used by defendants to reduce punitive awards are: 1) under the reprehensibility guidepost, to exclude collateral evidence based on an insufficient nexus between the alleged bad conduct and the injury suffered by the plaintiff; and 2) to focus on the ratio between compensatory and punitive damages when it exceeds a single-digit ratio.
Highlights of the latest insurance cases from around the country.
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A Supreme Court of California securities fraud decision sounds a warning to corporate policyholders to review their directors' and officers' ("D&O") insurance policies. In <i>Small v. Fritz Cos.<i>, 132 Cal. Rptr.2d 490 (Cal. 2003), the court upheld the validity of securities "holding claims" — claims seeking redress for persons induced to hold stock instead of selling it. Unlike typical securities fraud claims, the claims in this case did not involve the purchase or sale of securities. D&O policies usually link the availability of entity coverage for the corporation to a "securities claim" having been filed against the corporation. Unfortunately, some policies define "securities claim" narrowly in a manner that arguably does not include coverage for "holding claims." In light of the California decision, policyholders should insist that their policies define "securities claims" broadly in a manner that does include "holding claims."