Defense Litigation Insider

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The Reptile Slithers Into Massachusetts and Makes History

Posted in Uncategorized

In what is believed to be one of the largest verdicts for a sexual assault victim in Massachusetts history, Kira Wahlstrom*, now 41 years old, was awarded $6.6 million dollars as a result of a parking garage owner’s negligence.  The jury found that JPA I Management Co. Inc., which owned the Radisson Hotel and its parking garage, where the rape occurred, and JPA IV Management Co. Inc., which operated them, failed to provide adequate security and warnings. Ms. Wahlstrom was the second women brutally attacked in a two week span in 2009 by the same individual inside the parking garage which is located in Boston, MA.  Ms. Wahlstrom maintained that she was never informed a rape had occurred in the same parking garage less than two weeks prior to her rape, and that JPA did not take preventative measures to prevent the incident. Wahlstrom alleged that the hotel should have warned customers and posted extra garage security.  The jury agreed, awarding Ms. Wahlstrom $4 million dollars.  An additional $2.6 million was added to the verdict pursuant to Massachusetts’ pre-judgment interest statute.

One member of Ms. Wahlstrom’s trial team was attorney Don Keenan of the Keenan Law Firm, who is a well-known plaintiff’s attorney and co-author of “Reptile: The 2009 Manual of the Plaintiff’s Revolution.”  Keenan’s methods are commonly referred to as the “Reptile Theory,” which at its core is used by plaintiffs to frame a case so it appears the defendant chose to violate a safety rule and that the same defendant should not be allowed to needlessly endanger the public.  Reptile Theory proclaims that you can prevail at trial by speaking to, and even scaring the primitive and instinctual part of jurors’ brains.  The Reptile Theory may be a newer approach, but it is not without success – Keenan’s website boasts that plaintiffs have recovered more than $6 billion dollars in verdicts and settlements as a result of utilizing this theory. The Reptile Theory purports to provide a blueprint to succeeding at trial by applying advanced neuro-scientific techniques to pretrial discovery, jury selection and trial.  Plaintiffs state that the Reptile Theory is a strategy calculated to manipulate jurors to fear for the safety of themselves, their families, and their communities, and to play upon that fear to encourage jurors to punish defendants for their perceived unsafe and dangerous conduct in order for the jurors to protect themselves and their families.

There is little doubt that Reptile methods played a key role in the verdict amount. Keenan’s and Wahlstrom’s post-trial comments highlight the Reptile Theory and the impact it could have on plaintiff’s receiving large verdicts:

 

“It’s a national problem, a wake-up call to all of us: parking garages are not as safe as we think…This is not a ma and pa parking garage — there are 700 spaces. If anybody should have the resources to keep customers safe, it should be this company, and they didn’t.” – Don Keenan

 

“It was about helping people and maybe changing the way that people run their parking garages and the way they treat rape victims and, hopefully, more men and women will speak out when things like this happen.”

“We need to have better parking garage security, whether it be cameras or one person on every floor. They need to do something so that people are safe when they go there” -Wahlstrom

 

There are many legitimate criticisms of the purported science behind the Reptile Theory. That is, however, beside the point.  The bottom line is that the strategy is very effective as the framework of a plaintiff’s case, and the methods utilized by Reptile plaintiff counsel can lead to extremely damaging testimony by unprepared defense witnesses and experts both at deposition and trial. Furthermore, the methods are highly effective in voir dire, and also in influencing a jury in the opening/closing statement statements of trials. The verdict in the Wahlstrom matter, undoubtedly one of the highest for a sexual assault victim in Massachusetts history, highlights that defense counsel must be proactive in preparing their clients and case for the Reptile.

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At MG&M, we have worked closely with jury consultants, litigation psychologists and respected co-defense counsel in developing methods for combatting the Reptile. This includes witness preparation; motions in limine to preclude or limit the use of Reptile at trial; enhanced voir dire methods designed to counteract the Reptile during the first interactions with the jurors; and opening/closing statement strategy.  The defense of companies against the Reptile starts early, and spotting the Reptile Theory and its themes is imperative to a favorable outcome. Even your first witness in discovery needs to be prepared to face it. By way of one example, many of the questions posted by a Reptile plaintiff’s counsel at a deposition appear to be innocuous general safety questions that, on their face, are difficult with which to disagree. In fact, a defendant may be eager to agree with these questions posed by plaintiff’s counsel in an effort to demonstrate they are safety conscious and concerned about public safety.  These questions are, however, anything but innocuous.  Instead they are a carefully crafted set-up by plaintiff’s counsel to box defendants into a corner before they turn to case-specific questions.

Plaintiff’s counsel across the country certainly took notice of another Reptile victory this week, which resulted in a verdict significantly in excess of historical values in Massachusetts. And it is certain that they will continue to enhance and refine their amphibian ways. The question for defense counsel and their clients is, will you be ready to face it?

*Consistent with the approach taken by the Associated Press, we do not usually identify people who say they are victims of sexual abuse, but Ms. Wahlstrom has spoken publicly often about her case.

Legal Ethics 2.0: Massachusetts Makes Changes To Its Rules Of Professional Conduct – The Requirement To Be Technologically Savvy

Posted in All Practice Areas, Massachusetts Courts, Professional Liability

As previously reported, following the 2012 and 2013 American Bar Association’s amendments to its Model Rules of Professional Conduct, many jurisdictions began to reexamine their own rules.  Massachusetts followed suit, and on July 1, 2015, the Supreme Judicial Court (SJC) adopted several revisions to the Massachusetts Rules of Professional Conduct (Mass. R. Prof. C.) recommended by its Standing Advisory Committee.  This blog post is the second in a series designed to inform practitioners of several important changes to the Massachusetts rules.

 

The Duty to Remain Current on Latest Technologies

Gavel_Computer_2

Before an attorney can accept a matter, he or she has to comply with the competency standards found in Mass. R. Prof. C. 1.1.  According to said Rule, competent representation requires “the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”

 

In response to the rapidly changing technologies impacting the practice of law, the SJC adopted Comment 8 to Rule 1.1, which states:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . . (emphasis supplied).

With the rise of e-discovery, this Comment is particularly appropriate.  The State Bar of California Standing Ethics Committee on Professional Responsibility and Conduct in its Formal Opinion No. 2015-193, noted that “[I]n today’s technological world almost every litigation matter potentially involves [e-discovery],” and failing to have a “basic understanding of, and facility with, issues relating to e-discovery” can eliminate an attorney’s competency for a case.

 

We expect Massachusetts to follow the guidance provided by California’s Committee, and interpret the new Comment to allow an attorney who is not competent in this regard to nonetheless perform legal services competently by: 1) associating with or consulting technical consultants or competent counsel; or 2) acquiring sufficient learning and skill before performance is required.  Lawyers must decline the matter when they cannot meet these two provisos, and when they do not, Comment 8 gives the Board of Bar Overseers an additional tool to sanction lawyers who mishandle e-discovery by producing confidential or privileged information, or by failing to locate and produce electronically-stored discoverable data.

 

Comment 8 should not, however, be viewed solely in the e-discovery prism.  The headlines scream about the latest hacking attacks and disclosures of personal information.  Failing to maintain proper firewalls and other security features, notwithstanding a lack of bad faith conduct, may also viewed as a disciplinary rule violation.  Given that the use of computers and e-mail are unavoidable, lawyers should follow the same guidance applied to e-discovery.  That is, engage technical consultants or acquire sufficient learning and skill.  It may cost a few dollars, but it’s worth it, particularly in light of the potential the risks associated with Comment 8 to Mass. R. Prof. C. Rule 1.1.

 

For more information on the revised rules visit:

 

http://www.mass.gov/courts/docs/sjc/docs/rules/a-sjc-order-rules-of-professional-conduct-adopted-march-2015.pdf

Legal Ethics 2.0: Massachusetts Makes Changes To Its Rules Of Professional Conduct – Communications With Jurors

Posted in All Practice Areas, Massachusetts Courts

Following the 2012 and 2013 American Bar Association’s amendments to its Model Rules of Professional Conduct, many jurisdictions began to reexamine their own rules.  Massachusetts followed suit, and on July 1, 2015, the Supreme Judicial Court (SJC) adopted several revisions to the Massachusetts Rules of Professional Conduct (Mass. R. Prof. C.) recommended by its Standing Advisory Committee.  This blog post will be the first in a series designed to inform practitioners of several important changes to the Massachusetts rules.

 

Communicating with Jurors

courtroom-12jury-002b-564x338Last summer then Governor Patrick signed into Massachusetts law House Bill 4123 which made two significant changes to Massachusetts Superior Court procedure involving trials.  The first allowed Plaintiffs’ counsel to request a specific dollar amount as damages; the second allowed for questioning of prospective jurors (voir dire).  This summer, the SJC made a significant change to the Massachusetts Rules relating to communications with jurors after they render their verdicts by amending Mass. R. Prof. C. 3.5 to largely conform to ABA Model Rule 3.5.

The former Mass. R. Prof. C. 3.5, articulated in Commonwealth v. Fidler, 377 Mass. 192 (1979) and reaffirmed in Commonwealth v. Solis, 407 Mass. 398 (1990), prohibited lawyer-initiated, post-verdict juror contact unless authorized by court order for good cause shown.  Although the Standing Committee noted that “good cause” was a relatively low threshold, it remained concerned that a complete prohibition of non-judicially approved lawyer-initiated communications with jurors after a verdict may violate the First Amendment and prevent lawyers from receiving useful feedback.

As such, the SJC followed the Standing Committee’s recommendation and revised Mass. R. Prof. C. Rule 3.5 to largely follow the corresponding Model Rule.  Under the new Rule 3.5, attorneys may communicate with jurors post-verdict unless: (i) the communication is prohibited by law or court order; (ii) the juror has made known to the lawyer, directly or indirectly, a desire not to communicate with the lawyer; or (iii) the communication involves misrepresentation, coercion, duress or harassment.

Clearly, the Standing Committee’s desire for clarity of the rules and concerns over potential First Amendment issues were strong, and unlike several other revision recommendations, unanimously recommended this significant alteration to the rules.  In effectively abrogating Solis and Fidler, the SJC agreed, and appeared to have little concern regarding the impact the new rules may have on jurors’ willingness to serve or the potential for improper challenges to their verdict.

 

For more information on the revised rules visit:

http://www.mass.gov/courts/docs/sjc/docs/rules/a-sjc-order-rules-of-professional-conduct-adopted-march-2015.pdf

 

 

Noise-Induced Hearing Loss Claims Against Employers Fall On Deaf Ears

Posted in Employment Litigation, Premises Liability

Occupational Hearing Loss (OHL) is one of the most prevalent work-related illnesses in the United States with 22 million workers exposed to hazardous noise each year, according to the Centers for Disease Control.

With approximately $242 million spent annually on workers’ compensation claims for disabilities arising from hearing loss, this number is set to increase in light of a new favorable holding for Louisiana employers with industrial workplace settings.
hearingThe Louisiana Supreme Court held in Arrant et al v. Graphic Packaging International, Inc. et al that defendant Graphic Packaging, which owns and operates a paper mill, box plant, and carton plant in West Monroe, Louisiana, is immune from suits in tort brought by its employees for noise-induced hearing loss injuries sustained from working around industrial machinery. The Supreme Court held that these injuries fell within the Louisiana Workers’ Compensation Act (“LWCA”) definitions of a covered “personal injury by accident” or an “occupational disease.”

“Arrant is the symbolic shot heard round the world in Louisiana when it comes to noise induced hearing loss suits.”

The Court heard testimony from expert audiologists that when high levels of energy enter the cochlea of the ear “it damages and destroys that row of hair cells in that particular part of the ear.” There is an “immediate injury to the inner ear” though the effect only becomes gradually perceptible over time and only with repeated or continuous exposures to high levels of noise. As such, the Court held that traumatic injury to the inner ear qualified as a personal injury by accident under the LWCA.

The Court also found that “hazardous levels of industrial noise . . . was a condition very characteristic of and peculiar to the particular employment of working in a paper mill or box plant” and as such was an occupational disease under the LWCA.

Caution-Hearing-Protection-RequiredThe legal effect of Arrant is that suits against an employer for noise induced hearing loss injuries are now within the exclusive remedy provision of the LWCA. The practical effect of Arrant is that noise-induced hearing loss suits against employers are coming to an end. While technically the LWCA provides an exception for intentional acts, this is a difficult burden to meet. Were plaintiffs to amend their petition to assert an intentional tort against their employers, they would have to prove that the employers either desired that their employees sustain noise-induced hearing loss, or were substantially certain that such injuries were going to occur from their work around noise producing machinery inside their facilities.

Simply, Arrant is the symbolic ‘shot heard round the world’ in Louisiana when it comes to noise induced hearing loss suits.

Craft V. Crafty: The Blue Moon Class Action Suit Against MillerCoors LLC

Posted in False-Labeling Claims

MillerCoors LLC, owner of the Blue Moon Brewing Company (“Blue Moon”) brand and purported brewer of the Belgian-style witbier, recently removed to the U.S. District Court for the Southern District of California a class action lawsuit filed by Evan Parent on behalf of himself and all similarly situated consumers.  Despite the fact that he claims to be a “beer aficionado,[1]” Parent alleges to have purchased Blue Moon beer from various retailers from 2011 to mid-2012 under the mistaken belief that it was a “microbrew or ‘craft’ beer.” Parent asserts that MillerCoors deceptively marketed and charged a premium for Blue Moon beer by: (1) misleadingly characterizing it as a “craft” or “artfully crafted” beer; and (2) withholding the name “MillerCoors” from its label.

In 1980, there were 8 craft breweries in the United States. By 2014, that number had grown to 3,418.  During that time, craft breweries have slowly cut into the massive share of the $100 billion domestic beer market held by large breweries, such as Anheuser-Busch and MillerCoors. Craft beer has quickly grown from roughly a 3% market share in 2000 to 19% in 2014.  The large breweries have responded by creating their own “craft beer” brands, such as Blue Moon and Shock Top, and by purchasing craft breweries, such as Goose Island, Kona Brewing Co., Leinenkugel, and 10 Barrel Brewing.

Parent’s claim is founded upon the definition of “craft beer” set forth by the Brewer’s Association, a not-for-profit trade association, “dedicated to small and independent American Brewers, their beers and the community of brewing enthusiasts.”  The Brewer’s Association defines “American Craft Brewer” as:

  • Small: Annual production of 6 million barrels of beer or less;
  • Independent: less than 25 percent is owned or controlled by an alcoholic beverage industry member that is not itself a craft brewer; and
  • Traditional: a brewer that has a majority of its total beverage alcohol volume in beers whose flavor derives from traditional or innovative brewing ingredients and their fermentation.

Parent alleges that Blue Moon is located in Coors Field, but that the Blue Moon beer sold in stores is brewed at MillerCoors’ Colorado and North Carolina breweries. Parent asserts that MillerCoors’ massive annual production takes it outside the definition of Craft Brewer set forth by the Brewers Association.

It is undisputed that MillerCoors does not qualify as a “Craft Brewer” pursuant to the guidelines set forth by the Brewer’s Association. Contrary to plaintiff’s assertion, however, the Brewer’s Association is not the arbiter of how “Craft Brewer” is defined.  Additionally, it remains to be seen whether “craft beer” can only be brewed by a “Craft Brewer.” In other words, it is unclear whether the term “craft beer” is reflective of the brewer who produces it or relates to the product itself. Does MillerCoors’ size preclude it from producing a “craft beer,” even if it uses quality ingredients and small batch sizes? Presumably, Parent will have a difficult time disputing the “quality” of Blue Moon beer given he purchased and consumed it regularly over an 18 month period. Despite being an “aficionado,” over that lengthy time period, Parent was unable to distinguish the “quality” of Blue Moon from the other craft beers he presumably consumed.

craft beer 2Parent’s suit is the latest foray of plaintiffs into the requirements of truth in labeling, as it relates to the beer industry, following Anheuser-Busch’s settlement with a class of consumers alleged to have been misled that Kirin Ichiban beer was brewed in Japan. Similar battles have been fought within the food and soft drink industry over terms such as “all natural” and “organic.”

Parent’s initiation of a legal battle over the definition of the term, “craft beer,” and the ability of the large breweries to use that phrase in reference to their product represents the culmination of a significant “craft beer” movement that has dramatically changed the landscape of the beer industry.  The outcome of this case will not only set an important precedent for future mislabeling and deceptive marketing class actions, it could also have a significant and widespread impact on the beer industry, particularly in how large breweries, such as Anheuser-Busch and MillerCoors, respond to their market share losses, and promote their own “craft beer” brands and subsidiaries. Many interested parties will be watching this case carefully, including this writer.

 

[1] No self-respecting beer nerd buys Blue Moon., or refers to themselves as an “aficionado.”

 

Massachusetts’ Supreme Judicial Court Upholds Record $63 Million Verdict in Children’s Motrin Case

Posted in Pharmaceutical and Medical Devices, Products Liability

 

Children's MotrinThe Massachusetts Supreme Judicial Court has affirmed a record $63 million jury verdict against healthcare giant Johnson & Johnson for allegedly inadequate warnings about the health risks associated with Children’s Motrin. The facts underlying this remarkable verdict are undeniably tragic, but they also demonstrate just how important clear and comprehensive warnings are for product manufacturers. Further, as explained in more detail below, this case emphasizes that it is extremely difficult in Massachusetts for manufacturers to prove that the FDA would have rejected a plaintiff’s recommended warning change, a showing that the United States Supreme Court has suggested could shield a manufacturer from a failure to warn claim. With interest, Johnson & Johnson is currently liable for over $130 million to the plaintiffs.

The Case

In November 2003, seven-year-old Samantha Reckis took Children’s Motrin after showing signs of a fever. The popular pain reliever did not improve her condition. Instead, Samantha developed toxic epidermal necrolysis (“TEN”), a life-threatening skin condition that caused her to lose 80 percent of her lung capacity, 90 percent of her skin, and her vision. Since 2003, Samantha has undergone almost 100 surgeries, which have kept her alive.

Samantha and her parents sued Johnson & Johnson, the manufacturer of Children’s Motrin, for allegedly failing to provide adequate warnings about the risks associated with the drug. Specifically, the Reckis family claimed that Children’s Motrin should have included a warning that its use could result in a life-threatening condition. In February 2013, a Plymouth County jury returned a $63 million verdict in favor of the Reckis family.

The Appeal

Johnson & Johnson appealed the verdict, primarily arguing that the United States Supreme Court’s 2009 decision Wyeth v. Johnson & JohnsonLevine preempted the plaintiffs’ claims because the Food and Drug Administration (“FDA”) would have rejected the warning that the Reckis family argued should have been on Children’s Motion. In Wyeth v. Levine, the Supreme Court found that a drug manufacturer could still be liable for failure to warn even after the FDA had approved a drug’s warning label. However, the Court also indicated that if there was “clear evidence” that the FDA would have rejected a manufacturer’s proposed warning change, then the manufacturer would not be liable for failing to include such a warning.

In 2003, when Samantha Reckis took Children’s Motrin for her fever, the warning on the drug advised users to stop using it if an allergic reaction occurred, but did not mention TEN or that its symptoms could be a sign of a life-threatening condition. Thereafter, a group of citizens petitioned the FDA to revise the warning on pain relievers with ibuprofen, such as Children’s Motrin, to reflect that use of the product could lead to potentially life-threatening conditions such as TEN. The FDA rejected this petition and specifically noted that including disease names such as TEN would not be useful to consumers because most consumers would be unfamiliar with such terms. Johnson & Johnson argued that this rejection constituted clear evidence that the FDA would have rejected a revised label for Children’s Motrin that included any mention of it potentially causing “life-threatening” diseases.

The SJC rejected this argument, explaining:

the FDA’s decision not to request that manufacturers add a warning about life-threatening diseases could well have been merely a byproduct of its rejection of these requested warnings on the basis that they mentioned [certain life-threatening diseases] by name. Whether the FDA also would consider including a mention of life-threatening diseases, by itself, to be inappropriate and off limits on the OTC label is anybody’s guess; certainly the reason specified by the FDA for rejecting use of the disease names – consumer unfamiliarity – does not apply to use of such a phrase.

The SJC also rejected Johnson & Johnson’s argument that the $63 million verdict was excessive.

The Lesson

The SJC’s upholding of the verdict, one of the highest personal injury awards in Massachusetts history, highlights that manufacturers must be proactive with their warnings and ensure that warnings provide a thorough list of any potential adverse effects. Manufacturers must also remember that they, not the FDA or any other governmental agency, bear the ultimate responsibility for labeling their products appropriately. Furthermore, at least in Massachusetts, manufacturers should be very wary of relying on any argument that there was “clear evidence” that the FDA would have rejected a recommended warning change. As Johnson & Johnson just learned, the SJC’s standard for clarity is extraordinarily high.

Blue Bell Ice Cream’s Path to Listeria Recall Follows a Rocky Road

Posted in Foodborne Illness, Products Liability

How to ‘Bell-weather’ a Recall: Position Your Company to Withstand a Recall Efficiently and Effectively

 

Headlines announcing the recall of some product or another seem to appear as regularly as the changing of the seasons, and often times, to the consumer at large, they come and go just as subtly. It is wholly unsurprising, however, that recalls involving a food item often land with the jolt and turbulence of a spring thunderstorm.

The notion that food, the very purpose of which is to nourish and sustain, could in fact be causing us substantial harm is inherently alarming, and opportunistic news outlets are well aware that food-related recalls increase viewership and website traffic.

Making headlines right now, just as warmer weather is finally reaching much of the country, are two separate wide-ranging recalls involving that American favorite, ice cream. The recalls were initiated by popular producers Blue Bell Creameries, of Texas, and Jeni’s Splendid Ice Creams, of Ohio. The culprit in each recall has been identified as the bacteria Listeria monocytogenes, a potentially lethal contaminant.Jeni's Splendid Ice Creams

Jeni’s Splendid initiated a preemptive voluntary recall of its entire product line on April 23, 2015, while temporarily closing its retail scoop shops, after a random sample collected by the Nebraska Department of Agriculture tested positive for the bacteria. Blue Bell’s path to recall followed a rockier road.

A joint CDC and FDA investigation into an outbreak of 10 reported illnesses resulting in hospitalization, including three fatalities, from January 2010 through January 2015 eventually pointed to Blue Bell ice cream as the likely source. After laboratories in multiple states isolated the Listeria bacteria in several of its products, Blue Bell issued a limited voluntary recall of what it believed were the affected lines in March, 2015. After further investigation resulted in positive test samples in additional product lines, Blue Bell finally moved issued a full recall of all of its products currently on the market on April 20, 2015.

A recall has the potential to create consumer panic towards a product, sometimes an entire brand, and it is almost always a major conundrum for the product seller. The decision to issue a recall of a product that your company has placed on the market involves balancing as many factors as there are flavors of ice cream. The potential impacts are far reaching and substantial, not just to the consumer, but to everyone involved in placing the product in the stream of commerce, from the manufacturer, to the distributor, to the retail seller. What are the risks to the consumer? How many people may potentially be affected? What is the cost of the recall to your company, not just in dollars and cents, but in brand goodwill? How will your employees be impacted? Will you be facing punitive action by a regulatory agency is nothing is done? Will you be exposed to civil or criminal litigation? If a recall is necessary, how broad should it be?

The recalls issued by Jeni’s and Blue Bell followed different paths and for different reasons, but both necessarily caused significant impact on the companies and their respective brands. Blue Bell, avoiding the nuclear option of total recall, rolled out piecemeal corrective measures while continuing wide-scale production, thereby keeping revenue streams open, but exposing itself to protracted negative media coverage and potentially harming further consumers when additional product lines turned up positive for Listeria. There is also a risk that they may ultimately face punitive damages in a civil suit if it is found that their response was too slow or insufficient.

Jeni’s swift and sweeping response likely reduce any long-term impact of the incident to a hiccup, potentially minimizing damages in any future civil law suit.

Meanwhile, Jeni’s (having had the benefit of observing Blue Bell’s struggles,) opted to shut its operations down entirely at the first positive test, even absent any evidence of contaminate-related illnesses. Though likely causing substantial interruption to their bottom line in the short term, Jeni’s swift and sweeping response likely reduce any long-term impact of the incident to a hiccup, potentially minimizing damages in any future civil law suit, and perhaps even increasing consumer confidence in the brand due to their immediate and unequivocal response.

Blue Bell Ice CreamsEvery recall scenario is unique, and when the decisions are made companies do not have the benefit of hindsight, but whether you are an ice cream company, pasta maker, or industrial tool manufacturer, it is important to learn from a situation like Blue Bell’s and Jeni’s and prepare for the future. Companies would be well-advised to have a team on standby for a recall situation, consisting of product and industry specific specialists, and legal, financial and marketing professionals. Furthermore, it is important to think of the long term effects of an outbreak, particularly on your brand name, and not just the short term financial impact of a large scale recall when making any decision.

Of course, preparing a proactive strategy to avoid facing a recall situation in the first place by maximizing internal safety and quality control measures is vital to any manufacturer or supplier. For example, one measure which we have utilized to the benefit of our clients is to conduct periodic continuing education seminars on hot button litigation issues in their specific industry. These presentations benefit both company management and the everyday employees on the product floor and are designed to help limit reoccurring pitfalls and problems which we see once matters reach litigation. With proper preparation and guidance, a company can either avoid a recall altogether, or at the very least minimize any potential negative consequences in the unfortunate event that one must be issued.

Why You Should Seek Diversity in Your Law Firm

Posted in All Practice Areas, Products Liability

From television to transportation services, it seems that everywhere we look, people are seeking increased diversity. We want to see every race, gender, ethnicity, sexual orientation, religion, and socioeconomic background represented in every industry. It has been proven that diversity can be a driver of economic growth, but what about the legal profession? Do clients benefit from diversity within their law firms?

While it may appear biased coming from a female minority, I believe all signs point to yes. Law firms with diverse workforces have unique advantages difficult to attain through any other means. The following lists just some of those advantages:

Stronger Firm

  • Let’s start off with the obvious: law firms benefit from diversity in the same way any other business does. A diverse work environment is more likely to result in greater acceptance of its employees, which results in a happier work environment, which leads to lower turnover. These are all positives for clients when it comes to the bottom line because decreasing ‘the churn’ promotes efficiency; fewer attorneys and staff will work on a client’s matters over a longer period of time. Moreover, happy employees are proven to be more productive.

Diversity Produces Better Quality Work

  • I was raised in a Mexican-American household. We spoke Spanglish at home and ate Mexican food four out of five nights. As a child, I believed this to be the ‘normal’ American life. However, through my friendships with people that did not share my culture, I came to realize there were many other languages being spoken and delicious meals being enjoyed by families around the country. My perception of what an American family looks like expanded. In a way, the career of an attorney is not much different. Attorneys from different backgrounds each provide a unique perspective and approach to the law. When an attorney has the opportunity to work with a diverse group, they are able to expand their perspective on the key issues of a case and are thus in a better position to determine the best approach. The attorneys benefit, as do the clients.

Larger NetworkDiversity in Legal Services

  • Clients look to their attorneys for more than just legal advice, often times seeking referrals in other fields or jurisdictions. It is easy to see why law firms with attorneys practicing in various states and practice areas from various backgrounds can be beneficial to clients given the large network of connections the firm creates. Even within the same city, law firms with employees from assorted backgrounds are more likely to have a larger network, often through involvement in organizations or associations.

Greater Capability

  • Let’s not overlook language. A firm with a multilingual workforce has the capability to assist clients in unique circumstances. It is not uncommon for attorneys to meet with witnesses who speak other languages. Legal documents often need to be translated or drafted in another language. Moreover, in the event a client has international business, working with attorneys with citizenship in other countries can also be useful. Having these resources available at a moment’s notice puts the client in a better position to be prepared for whatever challenges may come up.

Diverse Firms are More Relatable

  • Legal representation usually does not start and end in the office. Zealous advocacy often requires communicating directly with company employees and/or the general public. Consider instances in which attorneys need to locate witnesses to speak favorably on a client’s behalf for a deposition or trial. How about when the attorney is speaking on a client’s behalf at trial before a jury? A diverse law firm is a better reflection of the general population, which in turn helps make the firm more relatable to the public as an agent of the client. Working with relatable attorneys and staff could be the difference between winning and losing a case.

Diversity is certainly not the only way to gain a competitive advantage, but it’s hard to discount that it can have profound and positive effects on both clients and lawyers. Whether a client is an individual, a small business, or a Fortune 500 company, diversity should be a key factor when considering what kind of law firm to partner with. With the global sharing economy increasingly driven by technology, diversity is more likely to provide the necessary tools a client should want and need at its fingertips.

 

Plaintiff’s Experts Barred from Offering “Any Exposure” Theory in Asbestos Lung Cancer Case

Posted in Asbestos Litigation

IL court rejects de minimis exposure to asbestos as ‘substantial
contributing factor

Asbestos Litigation

An Illinois federal judge recently barred expert testimony espousing the “Any Exposure” theory, which is also commonly referred to as the “Each and Every Exposure” theory and the “Single Fiber” theory.

In general, the “Any Exposure” theory is a causation theory that postulates that any exposure to asbestos, regardless of dose or amount, (excluding background exposure) is a cause of the injury to the person exposed. In Krik v. Crane Co. (N.D. Ill. Dec. 22, 2014), plaintiff, Charles Krik, filed suit against several defendants alleging he developed lung cancer from exposure to their asbestos-containing products.

Plaintiff sought to offer expert testimony of Dr. Arthur Frank and Dr. Arnold Brody on the issue of medical causation and Frank Parker regarding industrial hygiene. Specifically, these experts were expected to testify that each and every exposure to asbestos caused Mr. Krik’s lung cancer. Several defendants moved to bar such testimony as inadmissible and requested that it be excluded under Federal Rules of Evidence Rule 702 and Daubert v. Merrell Dow Pharm, Inc., 509 U.S. 579 (1993). After acknowledging that the Seventh Circuit has not opined on the admissibility of the “Any Exposure” theory in an asbestos matter, the court ruled that plaintiff failed to establish that the “Any Exposure” theory is sufficiently reliable to be admitted under Rule 702 and Daubert.

In reaching its conclusion, the court noted that plaintiff conceded that his experts believed asbestos-related lung cancer is a dose-responsive disease and yet plaintiff would have his experts testify that any asbestos exposure—regardless of dosage—is sufficient to cause asbestos-related lung cancer. The court also underscored plaintiff’s failure to offer any expert testimony regarding plaintiff’s exposure dose of asbestos, and whether that dose was sufficient to cause his lung cancer.

The opinion that plaintiff’s experts cannot rule out that a single dose of asbestos causes injury, and therefore any and all exposure to asbestos is harmful, “is not an acceptable approach for a causation expert to take.”

The court rejected the notion that de minimis exposure or a single exposure is sufficient to meet Illinois’ substantial contributing factor test. Rather, the correct statement of Illinois law is that more than de minimis exposure is required to prove causation. Moreover, the court found the “Any Exposure” theory was inadmissible because plaintiff’s experts failed to base their opinions on the facts specific to this case in violation of Rule 702(d).

Click here to read the Kirk Opinion in its entirety.

Will “Unprecedented” Garlock Asbestos Bankruptcy Deal Be a Game Changer?

Posted in All Practice Areas, Asbestos Litigation, Products Liability

The Garlock asbestos bankruptcy has generated significant interest from attorneys representing plaintiffs and defendants as well as from companies and insurers involved in asbestos litigation.  Although the impact on litigation throughout the country has been uneven, courts seem to be more willing to take a proactive role in ensuring that transparency is provided in disclosing information related to bankruptcy trust claims.

In the meantime, the allegations of potential withholding of alternative exposure evidence seems to have contributed to Garlock’s agreement with future asbestos claimants.  The company recently announced a $358 million settlement of all asbestos injury claims and a revised reorganization plan.

The new agreement, while representing nearly double the $125 million a bankruptcy judge had estimated as Garlock’s liability is significantly lower than the $1 billion plaintiffs’ lawyers were requesting from Garlock.

Consequently, if the Garlock reorganization plan is approved, other companies may find asbestos bankruptcy more feasible than previously.

Additionally, as Daniel Fisher, writing for Forbes notes, other companies and insurers with potential asbestos liability are expected to continue to monitor the Garlock decision and seek to use files emerging from the case to help dispute claims that the companies or insureds’ products were the primary cause of plaintiffs’ illnesses in litigation or to show that plaintiffs may have made conflicting claims against other companies.

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