For The Defense, November 2012 - DRI Today

More documents

Recommendations

Info

Successor, from page 34 vide some insight into why the states that failed to pass the legislation have rejected it. Conclusion While more and more state legislatures grapple with whether to grant some reprieve to successor companies that have not had asbestos industry involvement, asbestos plaintiffs’ lawyers continue to seek ways to expand traditional principles of successor liability to reach more and deeper pockets. At the same time, the courts continue to balance applying traditional successor liability principles to product liability litigation, assessing whether to expand successor liability theories to accommodate the litigation or wait for legislatures to speak on this issue. Until the legislatures do speak, successor companies will continue the delicate dance required to protect against tort liability that they did not create to guarantee their long-term viability. Nurse Paralegal, from page 21 conclusion of a case because they remain accessible electronically. Trial Notebooks Many lawyers advocate using a trial notebook in a three-ring binder that a nurse paralegal will prepare. Other firms do not use trial notebooks. If a firm uniformly organizes files, as our firm does, a nurse paralegal and his or her supervising attorney will know where to locate documents in a file, and the file itself can serve as a trial notebook. Furthermore, because we save and scan all important documents to the firm’s computer system, we can copy them easily and have them readily accessible during a trial on a laptop computer or an iPad, if for some reason the paper document proves elusive. On one occasion, an enterprising paralegal in our firm placed a large portion of a file into a three-ring binder trial notebook just before a trial. During the trial, neither the nurse paralegal nor the trial attorney could locate documents readily in either the trial notebook or in the file from which the paralegal had removed the documents. Fortunately, they could access the necessary documents on the computer. Trial One role of the nurse paralegal is to make certain to locate all the necessary subfiles and make sure that they are filed correctly and immediately accessible during a trial. The nurse paralegal also verifies that all the documents in the firm’s computer system that relate to a case are stored on the attorney’s laptop computer and the nurse paralegal’s laptop computer. The nurse paralegal uses a checklist to assemble all the items that he or she and the supervising attorney will need during a trial. The checklist is comprehensive and calls for a primary and a backup of all 80 ■ For The Defense ■ November 2012 electronic devices. During a trial, the nurse paralegal sets up the presentation equipment as needed, makes sure that each piece functions properly, troubleshoots problems with the equipment, and assists the trial counsel with displaying images. The nurse paralegal should participate in jury selection. A defense attorney should not select a jury alone. It is difficult if not impossible for one attorney to pose clear questions to prospective jurors, remember all the answers of each person, recall the intonation of each answer, and observe important nonverbal cues from all members of the group. Various studies indicate that most communication that discloses the truth is nonverbal rather than verbal. Generally, a nurse paralegal, due to training and experience as a nurse, is skilled in “reading” people and is in an excellent position during voir dire to form impressions and to make notes about them. An examining attorney probably can determine which prospective jurors to strike for cause without assistance. He or she may also discern which prospective jurors dislike the attorney without assistance. However, beyond that, he or she should allow the nurse paralegal and the physician client to suggest questions, and the attorney should seek significant input from them on excluding and selecting individuals from the jury pool. The nurse paralegal is deeply involved in preparing the PowerPoint presentation that the defense attorney in our firm generally will use in the opening statement of a trial. The nurse paralegal has unique insight into how to use medical illustrations, timelines, and other demonstrative evidence effectively to introduce complex medical issues to a jury. The nurse paralegal helps ensure that all the visual aids are medically valid and factually accurate. Although opinions conflict on what percentage among jury members make up their minds during opening statements, most attorneys believe that the opening statements are among the most important parts of jury trials. During a trial, in our firm the nurse paralegal types notes on a laptop computer for use by the attorney during the trial and for reporting the progress of a case to the insurer at the conclusion of each trial day. The nurse paralegal’s notes are particularly useful to the attorney when the time comes to prepare the closing argument. Conclusion For attorneys who engage in the defense of medical professionals and institutions, working with a nurse paralegal has become almost obligatory. Attorneys for plaintiffs recognize their value and increasingly employ a nurse paralegal or a legal nurse consultant. The value and level of participation of a nurse paralegal depends on his or her qualifications and characteristics, which optimally should include intelligence, communication skills, empathy, and curiosity. A capable nurse paralegal can educate an attorney invaluably, assist with case management, relate professionally to clients, obtain and comment on medical records, create a medical chronology, interact effectively with experts, conduct medical literature research, assist in preparing a client for the client’s deposition, review file organization, assist with trial preparation, and aid an attorney during a trial. A defense attorney who has the good fortune of having a long- standing working relationship with a nurse paralegal often finds it difficult to imagine how his or her defense practice could function as effectively without that nurse paralegal. Attorneys who currently do not work with such nurse paralegals can find intelligent, curious nurses with good communication skills willing to assist defense attorneys in representing clients with excellence.
Ethics, from page 79 oped competency, it is time to step over the threshold. As a professional, you will need to treat a pro bono case as you would any other representation for which you receive compensation. Just as you would handle a case for a client for which you received $150 per hour the same as you would handle one for which you received $350 per hour, your pro bono client would have the right to nothing less than your focused attention and most outstanding representation. In fact, I predict that the financial, emotional, and psychological vulnerability of your pro bono client likely would spur you to work that much harder to succeed. Lawyers should perceive pro bono representation as an entitlement of the profession rather than as an obligation. As professionals, we don’t need a mandatory rule to understand that pro bono work is integral to being lawyers. As Justice Anthony Kennedy once observed, “it is precisely because our duties go beyond what the law demands that ours remains a noble profession.” Read the rule. Turn aspiration into action. Search for training. Take on a client. Show up. Think Globally, from page 78 Switzerland with the German- influenced and Austrian- influenced trial systems of the other mainly German- speaking cantons. So not surprisingly, the enactment of collective redress schemes in the Swiss Civil Procedural Code (SCPC) was never discussed seriously, not only due to fears of overloading the legislative boat, but also due to profound scepticism about the perceived excesses of the U.S. class action system. It is somewhat predictable that in the future Switzerland will again discuss whether to amend the SCPC of 2011 to include collective redress mechanisms. Efforts to introduce collective redress systems in Switzerland might achieve momentum again in light of numerous mass cases in the banking, insurance, and fund industries during the ongoing financial crisis that started in 2007. The Swiss telcom industry with its de facto monopoly and the view that its consumers pay too much might also generate discussions about whether collective redress could lead to substantial telcom price decreases, while similar factors apply to Swiss consumers affected by a fair number of still existing horizontal monopolies. A harmful deep-heat mining project in 2007 causing an earthquake that resulted in thousands of home owners experiencing home damage in the Greater Basel Area might also fuel the discussion about whether the “access to courts” guaranteed by the Swiss Constitution must be secured through collective redress schemes. Magic Number, from page 72 When a plaintiff needs to tie causation to one or more particular defendants in a toxic tort case, the case will consider whether an exposure attributable to the defendants was, indeed, a “substantial factor” or a “substantial contributing factor” and a “significant” or a “significant contributing factor” in the development of the disease or injury, and perhaps even whether that disease would have developed “but for” that “exposure” or the defendant’s conduct. Testimony offered on these topics moves from the scientific to the hypothetical and has spawned a variety of unspecific and very unscientific “catch phrases” summarizing the bases of causation opinion theories, including “any exposure,” “any exposure above background,” “all exposures,” and the infamous hypothetical “one fiber” theory. Unfortunately courts have accepted many of these theories as “scientific” without considerable analysis or scrutiny. These are offered as both an opinion and the basis for an ultimate opinion that an “exposure” was a substantial factor in the development of a plaintiff’s disease or injury. They are generally offered because in many circumstances someone cannot say that a specific “exposure” was sufficient to cause the injury, or in a multiparty case, which exposure or exposures were causative or sufficient to cause disease. They allow an expert to opine on causation after as little as two minutes of scientific “inquiry” regarding the generalities about a particular case. Though the question of whether there is evidence suggesting a causal relationship is by no means the only necessary inquiry when examining expert opinion testimony on causation and understand- ing that epidemiology and, specifically, although a relative risk that is > 2.0 is not a “philosopher’s stone” that will turn unreliable science into gold, when the medical and scientific literature presents reliable evidence of a statistically significant relative risk that is > 2.0, it may provide a scientific basis for a causation opinion on a more likely than not basis. And while all practitioners and courts do not agree that a statistically significant doubling of a risk demonstrated by reliable epidemiological evidence absolutely is required to demonstrate the admissibility of an expert opinion regarding a cause and effect relationship between an agent and a disease or injury, when assessing the legal and scientific validity of such expert opinion testimony on causation, 2.0 really is a magic number. Yes it is. It’s a magic number. Off-Label, from page 27 tionally with the law because it restricted the availability of information that many people find very helpful) (internal citations and quote marks omitted). The federal ban on off- label drug-use marketing is analogous to the Vermont law that the U.S. Supreme Court found unconstitutional: at its most basic level, the FDA has prohibited commercial speech, off- label drug-use marketing, without regard for its truthfulness, out of concern that it would unduly persuade the public to make bad decisions. This concern is not a valid justi- fication for restricting commercial speech because “[t]he choice ‘between the dangers of suppressing information, and the dangers of its misuse if it is freely available’ is one that ‘the First Amendment makes for us.’” Id. at 2671 (quoting Va. State Bd. of Pharmacy, 425 U.S. at 770). Accord Thomp- For The Defense ■ November 2012 ■ 81
Page 3 and 4:
On The Record Embracing the Process
Page 6 and 7:
DRI Services 55 West Monroe Street
Page 8 and 9:
DRI News On The Record, from page 1
Page 10 and 11:
Alabama Affiliates in Action IDCA H
Page 12 and 13:
The Civil Justice System DRI’s Ju
Page 14 and 15:
The Civil Justice System A trial by
Page 16 and 17:
The Civil Justice System covery und
Page 18 and 19:
Medical Liability and Health Care L
Page 20 and 21:
Page 22 and 23:
Page 24 and 25:
Drug and Medical Device Fitting a R
Page 26 and 27:
Drug and Medical Device While the F
Page 28 and 29:
Drug and Medical Device receive the
Page 30 and 31:
Product Liability From the Chair Ma
Page 32 and 33: Product Liability Asbestos Litigati
Page 34 and 35: Product Liability ation exceptions
Page 36 and 37: Product Liability Corporate defenda
Page 38 and 39: Product Liability Once the notice l
Page 40 and 41: Product Liability nating a former e
Page 42 and 43: Product Liability Because you do no
Page 44 and 45: Product Liability Something for Not
Page 46 and 47: Product Liability bers without a do
Page 48 and 49: Product Liability Conscious Pain an
Page 50 and 51: Product Liability of their experts
Page 52 and 53: Product Liability A Waivable Defect
Page 54 and 55: Product Liability been filed in fed
Page 56 and 57: Product Liability If a forum defend
Page 58 and 59: Product Liability Warnings and Inst
Page 60 and 61: Product Liability probability (“w
Page 62 and 63: Product Liability the OEM assumes t
Page 64 and 65: Product Liability The CDC Opens Pan
Page 66 and 67: Product Liability exposure had decr
Page 68 and 69: Product Liability 2.0 Is a Magic Nu
Page 70 and 71: Product Liability expert’s testim
Page 72 and 73: Product Liability people who have t
Page 74 and 75: Product Liability risk.” Again,
Page 76 and 77: Product Liability • low static st
Page 78 and 79: Writers’ Corner Let’s Try This
Page 80 and 81: Think Globally Another Step Forward
Page 84 and 85: son, 535 U.S. at 375. Furthermore,
Page 86 and 87: New Members Arizona John L. Condrey
Page 88: SAVE THE DATE Product Liability Con
show all

For The Defense, November 2012 - DRI Today

Create successful ePaper yourself

Delete template?

Save as template?