Case Notes
December 29, 2004
Highlights of the latest product liability cases from around the country.
Stop! Don't Take That Expert's Deposition
December 29, 2004
FRCP 26(a)(2)(B) governing the disclosure of expert witnesses in federal court was adopted in 1993 with the hope that "the length of the deposition of such experts should be reduced, and in many cases the report may eliminate the need for a deposition" altogether. Advisory Committee Notes, Fed. R. Civ. Pro., Rule 26, 28 U.S.C.A. (1993).
Online: Exploring the Depths of NIH Web Site
December 29, 2004
Last month, this column explored parts of The National Institutes of Health Web site, <i>www.nlm.nih.gov</i>; we continue to discover what it has to offer this month. ToxTown is an interactive guide in both English and Spanish about how the environment, chemicals and toxic substances affect human health. The link contains places to visit, such as factories, schools and homes, and the various toxic chemicals that might be found there, eg, arsenic, asbestos, benzene and carbon monoxide. Household Products Database contains information on the health effects of common household products under your sink, in the garage, in the bathroom and on the laundry room shelf. Medline/PubMed provides access to more than 12 million references from 4600 biomedical journals, many of which have links to abstracts and in some cases, the full text of articles.
Practice Tip: Mounting an Effective Defense to Use of the 'Malfunction Theory'
December 29, 2004
For product liability practitioners, issues regarding liability historically have been won or lost in a battle of the experts. The reason: The plaintiff must show the product at issue contains a defect, which existed at the time it left the manufacturer's control, that caused the plaintiff's injury. Whether on the side of the plaintiff or the defendant, the most significant liability battle is waged over proving the existence of a defect, which usually requires reliance on expert testimony. With the increasing reliance of plaintiffs' counsel on the malfunction theory to establish product defect, the focus in some product liability cases has shifted from reliance on effective expert testimony to reliance on creative and effective lawyering.
The Case of the Quiet Recall: CPSC's 2004 Civil Penalty Cases Hit 'Do-It-Yourself' Corrective Actions
December 29, 2004
In 1997, a company named Sun-It (a subsidiary of E&B Giftware) manufactured and distributed some 47,000 citronella candles known as the "Money to Burn Torch." As it happened, the wrapper surrounding the candle collected superheated melted wax. Some consumers reported to Sun-It that they had suffered serious burns when they blew on the candles or bumped into them. Others said that they had been burned when the candles unexpectedly flared. In all, over a period of 5 months, Sun-It received notice of 14 incidents in which consumers claimed to have suffered serious burns and permanent scarring after having been scalded by hot wax from the candles. Sun-It responded to these reports by stopping sale of the candles and recalling candles that remained in retail inventories. Nearly 17,000 candles, including roughly 3300 in unshipped inventory ' more than a third of the total production ' were recalled and destroyed.
Tax Alert: Compensation And Benefits
December 27, 2004
Qualified retirement plans that provide immediate 'cash-out' distributions to a terminated participant if the vested benefit is $5000 or less will have to be amended to comply with Department of Labor (DOL) final regulations.
Child Custody Evaluators in Domestic Violence Cases
December 27, 2004
Several years ago, when I was working in a national legal services office that did research, consultations, and training in family law, it came to my attention that in custody cases involving domestic violence, custody was often being awarded to the abuser. Then, when I started actually representing low-income individuals in divorce and other family law cases, I got several battered women clients who had lost custody to their abusers. After investigation, it became apparent that the reason they lost custody was that the court-appointed child custody evaluators had recommended custody to the abusers, and the courts followed the recommendations. The forensic evaluators seemed to know little about domestic violence, and they paid virtually no attention to it when they conducted their evaluations. For example, some evaluators held joint meetings with the battered woman and her abuser, which further traumatized the woman. Many evaluators misdiagnosed battered women as having serious psychopathology, when the women were simply showing symptoms of the trauma they suffered at the hands of their abusers.
Appreciation in Separate Real Property As Marital Property
December 27, 2004
The increase in value of a titled spouse's separate property is subject to equitable distribution as marital property "to the extent that such appreciation is due in part to the contributions or efforts of the other spouse." D.R.L. ' 236 (B)(1)(d)(3). The Court of Appeals has repeatedly determined that a broad interpretation be given to this exclusion so as to favor the inclusion of such appreciation as marital property: "We hold that under the Equitable Distribution Law an increase in the value of separate property of one spouse, occurring during the marriage and prior to the commencement of matrimonial proceedings, which is due in part to the indirect contributions or efforts of the other spouse as homemaker and parent, should be considered marital property.
Bar Association Recommends Gay Marriage Legislation
December 27, 2004
A special panel appointed by the New York State Bar Association is proposing that the organization support gay marriage legislation. The Special Committee to Study Issues Affecting Same Sex Couples has come to the conclusion that New York's legislature should enact laws to put gay couples on a more equal footing with straight couples. The only question is, how equal?
