The Terminix Case: Causation in Mass Tort Litigation
On Aug. 27, 2004, the Fifth Circuit Court of Davidson County in Nashville, TN entered final judgment for Terminix International in a nine-plaintiff toxic-tort personal injury lawsuit. <i>Ballentine v. Terminix Int'l Co.,</i> No. 98C-836 (Aug. 27, 2004 Order). The case demonstrates the use of a challenge to the admissibility of plaintiffs' causation evidence to dismantle a multi-plaintiff or mini-mass tort claim from a single toxic exposure, and it illustrates the importance to both sides of getting the scientific evidence right from the outset. The approach to a mini-mass tort involving injuries from a single exposure need be no different from that used in a single plaintiff's claim.
Statistical Determination of Mass Tort Damages: Coming Soon to a Court Near You?
Traditionally, courts have been reluctant to consider the use of statistical tools such as sampling to determine damages in class action litigation and other cases involving large groups of plaintiffs. Arguments against the practice include the fact that it seemingly flies in the face of the Seventh Amendment, and that damages, by their very nature, are peculiar and specific to each individual plaintiff.
Recent Decision Provides Guidance on Admissibility of Expert Testimony
Improper use of experts in product liability cases is all too familiar. The proper use of an expert's specialized knowledge or expertise is to assist the trier of fact to determine a fact at issue. Some lawyers, however, use experts merely as sounding boards to highlight key facts and argue conclusory inferences in support of a party's case. These "experts" are typically offered as "historians" and arbiters of "ethical" conduct.
Ten Steps to an Effective Document Retention Program
In the past, the implementation of a comprehensive document retention policy may have seemed a secondary concern at best; however, the primary importance to all companies of implementing such a policy was dramatically illustrated in 2002. That year brought the federal obstruction of justice conviction and ultimate demise of accounting firm Arthur Andersen for destruction of documents it knew were important to the SEC's investigation of the Enron scandal. It also brought the Sarbanes-Oxley Act of 2002, which significantly expanded the reach of federal obstruction statutes, increased the penalties for document destruction that hinders a federal investigation, and promulgated new record-keeping obligations. <i>See, e.g.</i> 18 U.S.C. 1519, 1520. Coupled with these developments are the ever-expanding obligations in connection with discovery of electronic information.
Case Notes
Highlights of the latest product liability cases from around the country.
Online
A visit to <i>www.nlm.nih.gov</i> (National Library of Medicine) provides a wealth of information on health-related topics. This column will review various sections of the Web site over the next few issues. If you click on Health Information, you can access MedlinePlus, which contains more than 600 health topics searchable in alphabetical order, a medical encyclopedia with images, drug information, including names of hospitals and doctors and the latest health news. There are links to ClinicalTrials.gov, which was reviewed in last month's Online column, as well as NIHSeniorHealth, Tox Town, Household Products Database, Genetics Home Reference, Medline/PubMed (Biomedical Journal Literature), Aidsinfo and Office of the Surgeon General.
The Costly Road
The voluntary winding-up (<i>liquidation volontaire</i>) of a corporation is one of the many, though expensive, options available to shareholders wishing to withdraw from a corporation facing financial difficulties. Other options include the sale of their stake or of the corporation itself, possibly following a restructuring. The corporation may be sold as a whole or, where these exist, through the divestment of one or more branches of activity. The transaction may then be effected through various share deals for the different subsidiaries, or through the sale of assets, subsequent to which the corporation will still have to be wound up. A lease of business (<i>location g'rance</i>) followed by the sale of the business may also be an option.
How Safe Is The Store?
Given the now-common nature of e-commerce, new challenges face traditional firms and e-only businesses regarding adequate protection of the companies' computer systems, data and Web sites. These challenges are somewhat similar to those faced by a traditional retail business, but extend beyond those boundaries because of the Internet. For an e-business, a comprehensive disaster-recovery plan, including proper protection of computer systems and data, is critical to the success of the enterprise, and essential for daily operation.
