Practice Tip: 30 Days Before Trial ' Must-Have Meetings
In the January 2003 Practice Tip, I discussed the list of 'issues, witnesses and exhibits' one should compile to highlight the evidence required to establish a <i>prima facie</i> product liability case. In this issue, I discuss two individuals with whom the trial lawyer should meet within the 30 days prior to trial: the client and the physician. In a future tip, I will discuss meeting with the engineering expert. For ease of reference, all individuals are deemed male. For purposes of the discussion, the case concerns injury caused by a defective machine.
Major Victory for Solvent Asbestos Defendants
In a recent and critical ruling, New York State Supreme Court Justice Helen Freedman provided a rare victory for solvent defendants in asbestos litigation. Refusing to go along with a prior ruling by the Second Circuit, Judge Freedman interpreted Article 16 of New York's Civil Practice Law and Rules to hold that defendants in asbestos litigation are entitled to decrease their respective shares of liability to take into account the percentage of liability that should have been apportioned to other would-be defendants who were not named in the case because of a prior event of bankruptcy. Until now, liability was apportioned only among those defendants who were present in the lawsuit, with the other defendants being deemed 'unavailable' for purposes of sharing in liability. In this most recent iteration on the subject, Justice Freedman agreed with the defendants who argued that a bankruptcy filing of a potential defendant does not divest a plaintiff of jurisdiction that it might otherwise have had over the bankrupt entity.
CASE NOTES
Highlights of the latest product liability cases from around the country.
White v. Ford Motor Co.: Using Federalism to Rein in Punitive Damages Awards
It is often the case that juries are only too eager to award punitive damages that are excessively large when compared to the potential damages or actual damage done. In 1996, the Supreme Court made an effort in <i>BMW of North America, Inc. v. Gore</i>, 517 U.S. 559, to curb the effects of this behavior by imposing territorial limitations on the conduct that juries may consider when calculating the size of punitive damages. Specifically, the Court held that states could not consider out-of-state conduct in punitive damages calculations when such conduct was legal in other states. The <i>BMW</i> decision was based on principles of state sovereignty, comity, federalism, and the Due Process Clause of the 14th Amendment.
Practice Tip: Use the Internet to Obtain Old or Hard-to-Obtain Evidence
Previous <b>Practice Tips</b> have discussed the usefulness of the Internet in locating expert witnesses and in researching medical issues present in your product liability case. (See February 2002 <b>Practice Tip</b> '<i>Search the Internet for Medical Experts</i>' and March 2002 <b>Practice Tip</b> '<i>Make use of Internet Medical Sites</i>'). Here is yet another way to use the Internet to your advantage in product liability litigation: Use it to locate and obtain old or otherwise difficult-to-obtain physical and documentary evidence.
Federal Civil Justice Reform in the 108th Congress: An Analysis of the Criteria for Legislative Action
Tort reform has been heavily discussed and debated over the last twenty years. Any reform will have an impact on product liability litigation. If one looks over the past two decades, three criteria suggest what initiatives might be successful for federal civil justice reform in 2003. First, there has to be a real problem; second, a clear need for federal action; and third, a fair bill that is in the interests of the public and not a mere bailout for wrongdoers.
The New Wave of Concept Search Tools
Although the concept of concept searching has been around for at least 2,000 years in philosophical circles and was first realized in the software world in the 1970s, it is making big news in today's electronic discovery and automated litigation support world. Over the past year, a series of vendors have introduced software solutions they claim can take us far beyond the results we get using tools built around searching full text or coding data using key words, strings of text and Boolean search algorithms. Whether it is through mimicking the thought processes of high-level aquatic mammals, developing libraries of semantically and geographically related words and terms or displaying documents as masses of dots within sprays of bubbles, these software programs, we are told, are the automated litigation support equivalent to Big Blue, the computerized chess champion.
Where's Your Internet Headed?
With the ever-increasing frequency of business being conducted over the Internet, the events giving rise to the potential extraterritorial application of law also have increased, drawing attention to an area of law that is anything but clearly delineated. The increased likelihood of law being applied extraterritorially means that businesses should now seriously consider where their Internet business is directed, who it is likely to be reaching and be prepared with at least some minimal knowledge regarding the laws of such jurisdictions.
CASE BRIEFS
Highlights of the latest insurance cases from around the country.
What You Need to Know About EPLI
Even one relatively simple single-plaintiff employment discrimination lawsuit may result in substantial losses, which can be devastating for small- to mid-sized employers, particularly if punitive damages are awarded. And the legal expenses of defending such a lawsuit, even if successful, may be just as costly as losing the court battle. Moreover, the number of discrimination cases remains on the rise ' sexual harassment charges alone jumped nearly 50% from 1992 to 2001.
