Medical Liability and Health Care Law

Defending Sexual Battery Claims in #MeToo Era: Outside the Box Strategies 

By Mandi J. Karvis and John F. Floyd, Sr.


Once you have obtained the various records and conducted an appropriate investigation, you are now ready to depose the plaintiff. It is our recommendation that you videotape this deposition, as it will provide you with an opportunity to capture evidence that will not show up in a transcribed deposition. For instance, often times the plaintiff will be able to provide methodical, comprehensive, unemotional testimony in the deposition. This is in contrast to the anticipated theatrics that you may encounter during the trial with multiple interruptions of a need to take a break due to the emotional aspects associated with plaintiff’s claims. By capturing the plaintiff’s mood and effect during the deposition via video, you can play that testimony at trial to show the contrasting demeanor.

During the deposition of the plaintiff, it is our recommendation that you have the patient describe the event but do not try to impeach with any information that you have gathered in your initial discovery phase. Impeaching the plaintiff during the deposition with prior inconsistent statements will only allow plaintiff’s counsel to rehabilitate the witness at a break and arrive at a clear reason for the inconsistencies. Typically, plaintiff’s counsel does not conduct a thorough investigation. By the time counsel realizes the numerous inconsistencies at trial, it is too late for any type of rehabilitation.

We typically do not ask for text messages or email communication between the plaintiff and the healthcare provider during the initial discovery phase. Hopefully, the client will have all of this information for you so that you can effectively prepare for the plaintiff’s deposition. If you have asked for this information in discovery, then it will prompt the plaintiff’s counsel to obtain and review the communication with his client and prepare an effective response to the same should there be any negative evidence. This of course is dependent upon the disclosure requirements in your jurisdiction.

Although there are numerous issues to investigate during the deposition, some of the more critical include whether the patient re-appointed on the day of the incident for subsequent visits and what activities they engaged in immediately after the alleged incident and in the subsequent weeks and months thereafter. Depending on the plaintiff’s testimony, it is likely that you will want to send additional discovery to plaintiff’s counsel requesting copies of any debit and/or credit card statements from the date of the alleged incident to the present. Although it is likely that counsel will object to providing this information, you can argue that the same would reveal what activities the plaintiff was engaged in immediately following the incident and up to the present. For instance, if the plaintiff enjoys shopping and going out with friends and she alleges that she can no longer do the same, these statements could provide critical information as to her activities of daily living. In addition, the statements can help rebut any claims of isolation, loneliness, and in some cases, depression depending upon the level of activity. In addition to the activities of daily living, the statements can also provide information as to whether the plaintiff was able to take any vacations or out-of-town travel for pleasure which can also help reduce the damages at trial.

As previously mentioned, we typically ask for credit card statements and debit statements following the deposition after we have established the relevancy of the same through the testimony of the plaintiff. Depending on plaintiff’s testimony, you may also want to obtain the plaintiff’s cell phone records from the date of the incident to the present. These records could provide you with information to either substantiate or rebut plaintiff’s claims that their conducting various individuals confirming the inappropriate action.

Obviously, the information that you elicit in the deposition of the plaintiff will be critical to your defense. As previously mentioned, we are not necessarily trying to impeach the plaintiff during the deposition but are trying to obtain any and all inconsistent statements which may assist us in the cross-examination at trial. In addition, damages can be effectively eliminated or reduced depending upon the various activities that the plaintiff engaged in immediately subsequent to the incident and the following months post-incident.


Once you have completed your discovery and after consultation with you client, you are going to proceed to trial. The first thing that you should know is that this is not going to be your typical jury that you would ordinarily pick in a medical malpractice trial. As most of you aware, we typically try to get a very conservative jury of established older individuals in medical malpractice cases. However, in these types of cases, depending upon the exact nature of the claims, we are also looking for younger males who are more open to the concept that you are innocent until proven guilty and the mere fact that someone has made an allegation against an individual does not establish guilt without substantial corroborating testimony to support the same.

When evaluating a younger person for your jury, you should, if possible, obtain as much information about your jury pool from social media and other publicly available sources, like criminal court records. Oftentimes, the courts will provide you with a list of potential jurors several days before the trial. If this is the case in your jurisdiction, plan to perform a comprehensive research of social media for the jury pool. Frequently, individuals will post their opinions on the #metoo movement, the Kavanaugh hearing and confirmation, and other developments in the media wherein someone has been charged with improper sexual conduct. The positions that the potential jurors take relative to those charges will be very important in your voir dire process and your jury selection.

Of course, the types of jurors that you want will vary depending upon the facts of your case and the age and gender of the plaintiff. The millennials today place a very taxing burden on the defense counsel to explore the juror’s real position on the #metoo movement. Expect the voir dire process to take longer than usual as many jurors may express the desire to answer certain questions in private. Understandably, an individual might not want to volunteer to a room full of strangers that they have been the victim of some sort of sexual assault or abuse. The answers elicited during voir dire must be addressed by defense counsel, which will likely require flexibility in the defense theme at trial. Examples of various themes for the defense will be presented during the presentation.

One of the more critical decisions defense counsel must make when taking the case to trial is whether to have a female attorney cross-examine the plaintiff. Regardless of whether the plaintiff is male or female, defense counsel should explore the use of a female attorney in the cross-examination process. Attorney Floyd always has a female cross-examine the plaintiff in order to avoid the perception that he is overpowering the witness or unfairly asking personal questions that are perceived to embarrass the witness. We have found an effective cross-examination by a female attorney yields benefits in acknowledging to the jury respect for plaintiff’s position but yet a clear strength in defending the healthcare professional against unsubstantiated and often times, unwarranted, allegations of sexual impropriety.

As we typically do in the general realm of malpractice cases, we always evaluate whether our client is going to make a good witness. Often times, the client is so concerned about the negative impact of an adverse judgment on his license, family, and social friends, that he does not make a good witness at the trial. Instead of being confident in his care and treatment of the patient, the provider is confused and weak on his testimony rebutting the incident at issue. If that is the case, you should consider retaining the appropriate consultant to help with witness preparation. Regardless, we always advise the jury that the healthcare provider will not make a good witness as this type of claim is something that he has never experienced, and he did not go to school to learn how to be an effective witness.

By lowering the bar in voir dire and addressing with the jury that this is not a popularity contest, we have set the jury up for any perceived weak testimony by the client and the rationale for the same. There are several strategies that can be utilized at the trial should you have a bad witness, and these will be addressed during the presentation.

Mandi KarvisMandi J. Karvis, a partner in Wicker Smith’s Phoenix office, has been practicing for nearly 20 years, defending healthcare clients in professional liability lawsuits, as well as licensing board matters. During that time, Ms. Karvis has tried many cases to verdict in state and federal court. Over the years, Ms. Karvis has developed a niche practice area and has been asked to try cases all over the county involving physicians who have been accused of sexual impropriety with a patient.

John Floyd SrJohn F. Floyd, Sr., managing partner of Wicker Smith’s Nashville office, has been practicing for 30 years, defending healthcare clients in professional liability lawsuits. During that period of time, he has tried over 100 jury trials to verdict. John is board-certified in medical malpractice by the American Board of Professional Liability Attorneys, and he is actively engaged in representation of healthcare professionals throughout the United States.

DRI Voices

LGBTQ Pride Through a Legal Lens

By Gary Howard

June 30 concluded LGBTQ Pride Month 2021. Pride, or some semblance of it, has been celebrated in June since 1970. It began as a commemoration of the Stonewall Riots, which had taken place one-year prior in June 1969. In years past, the flipping of the calendar from Pride month to July brought significant changes in the laws that would have a positive impact on LGBTQ people. For instance, in June 2003, the U.S. Supreme Court handed down the Lawrence v. Texas decision and ruled that a Texas law making “homosexual conduct” illegal violated the 14th Amendment.

In June 2013, the Supreme Court in Windsor v. United States struck down the provision of the Defense of Marriage Act that had mandated under federal law that marriage be limited to a union between a woman and a man. June 2015 saw the Supreme Court issue its Obergefell v. Hodges decision extending marriage rights to same-sex couples nationwide. And just last year, the Supreme Court issued its opinions in a trio of cases and extended workplace protections under the Title VII of the Civil Rights Act to all LGBTQ people.

This year, as we flipped the calendar from Pride Month to July, we again saw changes in laws that would have an impact on the lives of certain members of the LGBTQ community. However, unlike the sweeping decisions from the Supreme Court over the past two decades, the new laws originating in State Houses around the country were not intended to extend LGBTQ rights. While numerous states enacted laws restricting transgender youth from accessing certain types of medical treatment or counseling and restricting them from participating in school sports programs, one state stood alone when it enacted its version of a “Bathroom Law” targeted at transgender individuals.

In May 2021, the Tennessee General Assembly passed House Bill 1182 and shortly thereafter the Tennessee governor signed it into law. Tennessee’s law is the first of its kind in the United States in that it compels businesses and government facilities to post a sign if the business has a “formal or informal policy” allowing transgender people to use multi-person bathrooms that align with their gender identity. Leaving no doubt as to what the signs should look like and where they should be placed, the Bathroom Law provides detailed specifications. The signs must

  • be at least eight inches wide and six inches tall
  • have the top one-third of the sign with a background color of red and state “NOTICE” in yellow text, centered in that portion of the sign
  • have the top two-thirds of the sign contain in boldface, block letters a statement that reads: THIS FACILITY MAINTAINS A POLICY OF ALLOWING THE USE OF RESTROOMS BY EITHER BIOLOGICAL SEX, REGARDLESS OF THE DESIGNATION ON THE RESTROOM
  • be posted at the entrance of each public bathroom in the business
  • be posted at each publicly accessible entrance to the business

The law took effect on July 1, less than two months after it was passed by the General Assembly and stressed that the “public welfare” requires swift implementation. The law faces various legal challenges in courts including one in which the plaintiffs argue that, by mandating they further a message with which they do not agree, the State is violating their First Amendment rights. On July 9, a federal judge in that case granted plaintiffs’ motion for preliminary injunction barring the State from enforcing the law while the litigation continues.

Prior to the Federal Court enjoining enforcement of the law, businesses in Tennessee faced some important decisions and will face these same decisions again should the law ultimately take effect. What will violations of Tennessee’s Bathroom Law bring and how will violations be enforced? While the law itself does not identify what penalty a violation of the sign requirements could bring, the law has been placed in a section of the Tennessee Code dealing with violations of building codes, which carry the threat of fines and jail time. Enforcement of the law remains a source of conflict. Sponsors of the bill argue that law enforcement officials in each county have a duty to enforce the law. But the Nashville District Attorney has taken the position that he will not enforce it, stating: “I believe every person is welcome and valued in Nashville. Enforcement of transphobic or homophobic laws is contrary to those values. My office will not promote hate.”

Regardless of which counties may or may not enforce it, the Bathroom Law is still the law in Tennessee, albeit unenforceable by federal injunction. The Bathroom Law passed both houses of the General Assembly by large majorities. Even businesses in Nashville, where the DA indicated he would not enforce the law, should consider whether they will comply if the injunction is lifted and what compliance would look like. Compliance should be simple: (1) post signs and by doing so announce your pro-transgender bathroom policy; or (2) don’t post signs and by doing so announce your policy that the business does not allow transgender people to use the facilities aligning with their gender identity. Either way, a business could proudly proclaim the stance that it has taken.

But if the law ultimately passes Constitutional muster, would the issue of compliance be that simple? Law enforcement officials who announce they will not enforce the law may be providing an “escape hatch” for businesses that don’t want to weigh in on a hot-button issue and would simply prefer to remain silent. For instance, for businesses in Nashville that don’t post signs, the following questions would necessarily arise:

  • Do you have a ban an transgender people using the bathrooms in your business and, accordingly, you are complying with the law by intentionally not posting signs?
  • Do you say you have a policy allowing transgender people (including employees) to use the bathrooms in your business but you don’t want to proclaim it to the world and, accordingly, are not posting signs because the law is not enforced in your jurisdiction?

Many of those Nashville businesses that remained silent, so as not to weigh in on the controversy, while the law was in effect and that might remain silent should the State ultimately prevail in litigation may have proclaimed their support for Pride events during the month of June. Some may have included rainbow flags as part of their logos or may have posted about their support of LGBTQ initiatives on their social media accounts just days before the law took effect on July 1. Most of those same businesses likely have polices stating their support for inclusion and diversity, even for transgender people. But are those actions and policies incongruous with remaining silent on the law?

Despite the current injunction barring enforcement, it is important for businesses to have a discussion as to what impact a law, still on the books, may ultimately have. These discussions could include a broader conversation about how transgender people are and will be treated. In having these discussions, businesses can go ahead and decide if their support for the LGBTQ community, including transgender people, is just something they say or whether it is also something they do.

Gary HowardGary Howard is a litigation partner at Bradley Arant Boult and Cummings LLP, in Birmingham, and has spent his 25-year legal career representing corporations in class actions; complex litigation; fraud and bad-faith actions; contract, business and lost-profits disputes; mass torts actions; and life, health, disability and long-term care insurance cases. He prides himself on getting to know each client’s business and on being able to build relationships of trust and mutual respect at all levels within his clients’ organizations. Gary is passionate about promoting diversity and inclusion. He serves on Bradley’s Diversity Task Force and as a member of the DRI Diversity & Inclusion Steering Committee. He also served as the 2018 DRI Diversity Expo Chair.

Sponsored Content

Wildfire Modeling, Before and After: How Computational Wildfire Modeling Can Help Mitigate Facility and Liability Risks

By Reeve Dunne, Ph.D., P.E., and Abid Kemal, Ph.D.

Reeve DunneAbid_KemalLarge-scale wildfires can devastate facilities and high-value assets located in the wildland urban interface (WUI). A report published in 2018 estimated that the 2017 wildfire season in California alone cost $100 billion. Over 85 percent of costs were associated with environmental cleanup, lost business and tax revenue, and property and infrastructure repairs. Facilities in the WUI are at varying degrees of wildfire risk depending on localized topography, weather patterns, and vegetation conditions. This explains why an ignition at a particular location coupled with the right prevailing conditions may result in rapid wildland fire spread, while an ignition a few miles away may result in significantly different rates of fire spread and damage risk.

Owners and operators of facilities and high-value assets in the WUI are increasingly recognizing the need to understand their localized wildfire risk and invest in mitigation efforts where appropriate. Modern cloud computing permits massive simulations of wildland fire spread from specific locations under assumed ambient conditions. At a reasonable cost, large-scale computational wildfire modeling can help facilities quantify and reduce the likelihood of ignition from their own assets or harden specific locations against wildland fires caused externally. In the unfortunate event of a fire, these models can also help facilities assess equipment damage and other liabilities.

Mitigating Localized Risks of Fire Ignition and Spread

By efficiently evaluating wildfire risks from localized ignitions, modern cloud computing enables facility owners to focus preventive measures on specific locations and assets that face the highest risk of ignition or damage. For example, imagine that a company is building a new facility in a high wildfire threat area. Computational wildfire modeling can highlight the most likely approach direction of a potential wildfire and the area of the planned facility likely to bear the brunt of it. Armed with this insight, the company might consider placing a parking lot on that side of the facility to make a defensible space for the assets it wishes to protect. Further computational wildfire modeling can also inform the heat load coming from the approach direction and provide quantitative estimates of the defensible space needed.

In addition, facility owners and operators can use computational wildfire modeling to determine where best to focus resources for preventing fire spread. For example, imagine a utility company has one transmission tower located in the midst of a densely forested mountain range and another located three miles away in relatively sparse vegetation. Modeling tools can predict at both tower locations the rate of fire spread under the specific fuel loads and prevailing wind conditions. If a fire at one location is more likely to spread to nearby populations or infrastructure, the company might want to focus its limited preventive resources there.

Assessing Asset Damage and Liability Post-Fire

Post-fire computational modeling can help facility owners and operators assess the scope and scale of damage. Because heat load damage is not always visible, wildfire modeling tools can help facilities identify assets that may need to be assessed or replaced to maintain the safety and continuity of operations. Given the increasing body of research on the negative effects of smoke plumes from wildland fires, owners and operators can use wildfire modeling tools to understand the directionality of post-fire ash and particulates, how that directionality affects facilities, and whether additional liabilities may need to be addressed. Data from simulation, satellite, and distributed air quality measurement tools can also be incorporated after the event to determine where smoke and ash may have had the greatest effect.

How Exponent Can Help

Exponent’s multi-disciplinary team of fire and thermal scientists, meteorologists, Geographic Information Systems experts, metallurgists, geologists, and structural engineers combines decades of wildland fire investigation and wildfire modeling experience with the technical expertise needed to perform and correctly interpret the results of modern cloud computing simulations. This comprehensive expertise enables us to rigorously inform model inputs, critically assess and validate model results, and develop effective strategies for risk mitigation in the real world. We can help facility owners and operators in industries susceptible to wildland fires reduce the likelihood of ignition from assets, limit fire spread, and assess damages and liabilities post-fire.

At Exponent, Reeve Dunne, Ph.D., P.E., is a managing engineer and Abid Kemal, Ph.D.,  is a principal. Exponent is a Premier Sponsor of DRI’s Fire Science and Litigation Seminar, taking place September 9 – 11, 2021, in Washington, D.C.  Learn more at https://www.dri.org/education-cle/seminars/2021/fire-science-litigation-sept.

DRI Cares

DRI Members Reach Out to Communities

Helping Kids Eat Healthier

At the DRI’s Spring Board Meeting, in Park City, Utah, DRI’s executive committee and board partnered with Eat Awesome Things (EATS), which is dedicated to empowering and growing healthy communities with fun, food, and nutrition advocacy. In 2020-2021, EATS:

  • Taught more than 150 classes to more than 2,300 students
  • Provided more than 10,000 extra meals, through Backpack Meals, to children facing food insecurity and hunger
  • Supported eight tower gardens, two garden plots, one greenhouse, and launched in-school garden sessions
  • Partnered with 14 community organizations and three school districts

In less than one hour, DRI executive committee and board members sorted and labeled nearly 1,000 seed packets, enabling children to grow their own food or flowers. Thanks to Meaghan Miller-Gitlin, EATS executive director, for teaching DRI about her amazing organization. And special thanks to DRI’s Lisa Sykes for coordinating this wonderful event. For more information, go to https://eatsparkcity.org/.

Supporting At-Risk Youth

The DRI Diversity and Inclusion Committee and Toxic Tort Committee supported Covenant House New Orleans during the committees’ recent seminars. For more than 25 years, Covenant House New Orleans has provided a safe haven for homeless, runaway, and at-risk youth ages 16–22. Located on the edge of the French Quarter, Covenant House offers shelter and care for neglected, abused, and exploited kids from all walks of life. When youth walk through the Covenant House doors, they are provided with a hot meal, clothes, a bed, caring staff, and much more. Individual medical care is provided on-site within 72 hours. Covenant House also develops a personalized case plan with each youth and works with them to reunite them with family, when possible, or develop the tools they need to live independently. 

So far, DRI has raised nearly $2,000. Donate or find out more.

Supporting Pancreatic Cancer Charity in Honor of Linda M. Lawson

As part of its April 2021 virtual seminar, DRI’s Life, Health, and Disability Committee united to support the Pancreatic Cancer Action Network (PanCAN). It selected this charity in honor of Linda M. Lawson, an LHD committee leader and mentor who lost her life to pancreatic cancer last year. PanCAN’s mission is to improve the lives of those impacted by pancreatic cancer by advancing scientific research, building community, sharing knowledge, and advocating for patients. PanCAN strives to help people like Linda. 

Beating its $2,500 goal, the LHD Committee raised more than $3,200 for PanCAN during its seminar. LHD members were encouraged to donate, but also to walk, run, and bike in support of the charity.  

If you’d like to help the LHD Committee support PanCAN and honor Linda's memory, please donate to the LHD Team Fundraising page.

Boosting Teen Success

During DRI’s Young Lawyers Seminar, which took place June 23-25 in Minneapolis, Minnesota, we were honored to partner with Cookie Cart, a Twin Cities organization that provides teens ages 15 to 18 with lasting and meaningful work, life and leadership skills through employment and training in urban nonprofit bakeries. The bakeries are classrooms, where teens learn and build real-world skills that prepare them for successful futures. DRI Young Lawyers met with 25 of Cookie Cart’s youth staff to discuss career paths, answer practical questions about being an attorney, and offer advice on how to achieve goals. You can support Cookie Cart by purchasing cookies baked by their youth staff at https://cookiecart.org/shop/

Appellate Advocacy

Mental Preparation: Before, During, and After the Pandemic

By Hillary A. Taylor

In the early days of lockdown, I published an article suggesting that lawyers could learn from elite athletes when it comes to mental preparation. (Improving Oral Advocacy Through Mental Preparation, The Voice, Vol 19, Issue 14, April 8, 2020). I wrote at my kitchen table, before pandemic reality was entrenched. No amount of preparation could have spared us the experience of the COVID-19 pandemic. The toll of the pandemic teaches that mental awareness and toughness are as important for everyday life as for extraordinary circumstances.

Whether you are preparing to argue a trial court motion or appearing before the highest appellate court in your jurisdiction, the ability to quiet your mind and focus is critical to success. Learning to be present amid chaos and a sea of uncertainty pays dividends.

At the beginning, it was difficult to concentrate. We were forced to practice in new and extreme ways necessitating even more mental energy and stamina to achieve simple tasks. With the world coming to a seeming halt, briefing deadlines continued unabated. Much of the life of an appellate lawyer remained remarkably undisturbed in terms of the work that needed to be done—it simply marched on. However, by the time Labor Day 2020 arrived, my beloved Pacific Northwest was literally on fire. If it was hard to concentrate before, what now? How then, do we continue to advocate for clients with zeal, attend to our families and law practices, and just generally carry on engulfed in crisis?

One key to combating loss of control is to pay greater attention to that which you still can. Mindfulness, awareness, and intentionality occupy important roles in getting through the mundane. Practice evolved. Zoom became a household name, and the idea of conducting a remote –fill in the blank-- was no longer foreign but expected. The adage “get comfortable being uncomfortable,” took on new meaning. Everything, from grocery shopping to meeting remotely with a client, felt uncomfortable. Attention to mental health, taking care of oneself, and coping were acute. Many turned to meditation or new forms of exercise to enable functioning as “normal” through this shared experience that was anything but.

It is important to find solace where we can. Our brains need a break from constant stress and uncertainty. Particularly in the early months of the pandemic, the best days, when I felt most myself, were the days that I argued something. Anything really. After a couple of months, I did not even care that it was by telephone. (Pre-pandemic I would have done almost anything to avoid this.) In fact, despite all the shortcomings of telephonic argument, there was a great deal of care taken on all sides to give every argument appropriate attention, despite what else may have been happening in the background. We all craved moments of normalcy, grounding the work, providing context and meaning as we plugged away, siloed in our homes.

When preparing for my first remote appellate argument, I struggled. I was distracted by what would be different. Preparation for argument is usually fun, and I have a trusted process. This time, I would be advocating via videoconference from a makeshift podium in our law firm library. My best outings occur when I employ tools like deep breathing and visualization, on top of substantive preparation. I had no idea how to bridge that gap with being remote, and I knew of no examples to learn from.

A few weeks before argument I felt an unfamiliar and growing discomfort. In response, I forced myself to set up a “courtroom” that I used to practice and help me visualize what this would look like, what I would look like, and how this would go. This is what I could control. That acknowledgment and acceptance freed me to prepare like I always do, with special attention to the remote aspects, but in all other ways following my process. My fear of the remote beast was vanquished, importantly, before I stepped up to the podium. By the time argument was over, I knew I had accomplished everything I needed to and aptly represented the client’s interests. Had I not forced myself to reckon with the unfamiliar discomfort to become mentally prepared, it likely would have not gone nearly as well. Strange times call for particularized responses. Allowing yourself flexibility in your approach to meet the unfamiliar, allows greater performance under pressure.

Being present and in the moment when you are advocating for a client is a learned and important skill. Just like for athletes, many of whom are just now getting to perform again, so, too, is it important for lawyers to be mentally on point as advocates, whether in person or otherwise. It is important for lawyers to be present and undaunted. Those skills are facilitated by engaging in the mental caretaking and mindfulness that comes with true mental preparation. Both are key to a successful and rewarding law practice, perhaps more so now than ever before.

Hillary A. TaylorHillary A. Taylor is a Shareholder with Keating Jones Hughes, P.C. in Portland, Oregon, where her practice focuses on professional liability defense, at trial and on appeal in Oregon and Washington. She obtained her B.A. from Lewis & Clark College and her J.D. from Willamette University College of Law. Ms. Taylor has authored many amicus briefs on issues of importance in cases before the Oregon Supreme Court. She enjoys spending her free time with her husband, who owns Portland Baseball Club. Ms. Taylor is a member of DRI.


DRI 2021 Elections

Declarations of Candidacy

At the 2021 DRI Annual Meeting in Boston, October 13–16, the DRI Board of Directors will elect four individuals to join them as national directors (each serving three-year terms). The final candidates are presented to the board upon the recommendation of the Nominating Committee, chaired this year by DRI Past President John Cuttino. In addition, an individual will be elected as the next DRI second vice president, who begins his or her track to the presidency after serving subsequent years as first vice president and president-elect. Also, one candidate will be elected to serve a one-year term as secretary-treasurer. Learn about DRI members who have filed Declarations of Candidacy for this year’s second vice president and national director positions.

Second Vice President

Gary L. GrublerGrange Insurance Company, Columbus, Ohio

John S. GuttmannBeveridge & Diamond PC, Washington, D.C.

R. Jeffrey LoweKightlinger & Gray LLP, New Albany, Indiana

Anne M. TalcottSchwabe Williamson & Wyatt PC, Portland, Oregon

Jodi V. TerranovaWilson Elser Moskowitz Edelman & Dicker LLP, Washington, D.C.

National Director

David L. JonesWright Lindsey & Jennings LLP, Little Rock, Arkansas

Stacy L. MoonGordon Rees Scully Mansukhani LLP, Birmingham, Alabama

Stephen O. PlunkettBassford Remele PA, Minneapolis, Minnesota

Marta-Ann SchnabelO’Bryon & Schnabel PLC, New Orleans, Louisiana

Tracey L. TurnbullPorter Wright Morris & Arthur LLP, Cleveland, Ohio

James E. WeatherholtzWomble Bond Dickinson (US) LLP, Charleston, South Carolina

Albert Barclay Wong, Drewry Simmons Vornehm LLP, Carmel, Indiana

Ricardo A. Woods, Burr & Forman LLP, Mobile, Alabama

DRI Young Lawyers Seminar

Reflections From the Young Lawyers Steering Committee

On June 23, 2021, lawyers from all over the United States and Canada gathered in Minneapolis, Minnesota, eager to meet and reconnect with fellow young lawyers at the annual DRI Young Lawyers Seminar. For many, it was the first opportunity to network in-person in over a year, and the excitement was palpable. The seminar contained a mix of first-time attendees and DRI veterans, all ready to jump in and take part in the activities planned over the next few days. As usual, the seminar was jam-packed with amazing programming, kicking off with a community service project in conjunction with a Minneapolis, Minnesota organization called Cookie Cart.  Cookie Cart aims to assist with career readiness and leadership development for the youth of the Twin Cities. 

From there, the program continued with outstanding networking opportunities, dine-around dinners, and wellness activities. Many of the seminar sessions were aimed at providing guidance to young lawyers so they can better thrive in their practice areas, and included discussions of allyship and sponsorship in the workplace, best practices for working with clients and corporate counsel, and a fast-pitch exercise with in-house counsel, where attendees got a chance to practice their elevator pitches. 

Several sessions throughout the seminar focused on how we can best promote diversity and inclusion in the legal profession, and push for real change in the workplace. As always, the seminar included a fantastic luncheon organized by the Diversity and Women in the Law subcommittees, featuring Justice Anne McKeig, the Minnesota Supreme Court’s first American Indian justice. She shared the journey that led her to the Minnesota Supreme Court. Finally, the program included a discussion on the impact of the COVID-19 pandemic on the United States’ judicial system, with several judges speaking about how the courts dealt with the challenges posed by the pandemic, and what lessons have been learned over the course of the past year that will impact the courts going forward.

Following are some brief reflections on the seminar from several members of the DRI Young Lawyers Steering Committee:

  • “The programming at this year’s YL Seminar was very impressive, well thought out, and very impactful. I believe that this past seminar will prove to have a significant and lasting impact on all attendees. I was glad to be there in person and can’t wait for the next meeting.” – Troy Bell
  • “I enjoyed meeting so many first-time attendees at varying levels of years-in-practice. It was great to see colleagues and friends that I’ve known for years, too. And, as always, the speakers were impactful and really encouraged me to take some bold energy back home.” – John Dollarhide
  • “Connecting with colleagues from all over the country—after a one-year hiatus—was rewarding both professionally and personally. The biggest substantive takeaway from the outstanding panel of speakers—diversity matters, and we all are responsible for keeping it at the forefront of our priorities as a profession.” – Joseph Megariotis
  • “The Young Lawyers Seminar’s increased focus on programming related to diversity, equity, and inclusion was extremely impactful—the programming brought a wide array of voices to the table to discuss the positive impact that diverse perspectives can have in the practice of law.” – Jaime Regan
  • “This year’s Young Lawyers Seminar was both a much-welcome reunion between old friends and an opportunity to make new friends. I was particularly grateful for DRI’s willingness, not only to put on an in-person seminar but also to ensure that safety protocols were followed, from abundant sanitizing products to individually wrapped food items at the breaks. Kudos to the Seminar Planning subcommittee for an outstanding line-up of speakers; to the Philanthropy team, who organized a powerful service project with Cookie Cart, a local Minneapolis non-profit; and the Corporate Counsel subcommittee, who put on the Fast Pitch Session, the crown jewel of the YL seminar, where attendees honed their business development skills with mock pitches to current in-house counsel.” – Emily Ruzic
  • “I could not have imagined a better event for my first in-person seminar since the pandemic. Fantastic programing, great networking, and a great location! Looking forward to seeing everyone next year!” – Sara Schiavone

Overall, seminar attendees were thrilled to be back in-person for the incredible DRI programming, and we all look forward to being able to continue to participate in future seminars and networking opportunities!

DRI Member News

Congratulations to DRI Members for Their Achievements

Carlos Rincon

Carlos Rincon was recently named incoming Chair of the American College of Transportation Lawyers (ACTA), a non-profit association consisting of a select group of experienced transportation defense lawyers who have joined together to serve as a confidential, reliable, and supplemental legal resource to the trucking industry. He credits his involvement in DRI as a contributing factor to this appointment, saying “Without DRI and DRI Trucking, this does not happen.”  Mr. Rincon has been a member of DRI since 1996.

M. Natalie McSherryM. Natalie McSherry has been installed as the 125th President of the Maryland State Bar Association. McSherry has more than 40 years of experience in commercial litigation, health care law, and alternative dispute resolution, and is recognized as one of the Maryland’s preeminent trial lawyers. She has received numerous awards, including the Daily Record Leadership in Law Lifetime Achievement Award, Maryland Volunteer Legal Services Winnie Borden Pro Bono Leadership Award, and the Maryland Legal Services Corporation Arthur W. Machen Award. Last year she received the 2020 University of Maryland Carey Law Distinguished Graduate Award and was elected to the Maryland Carey Law Board of Visitors. McSherry has been a member of DRI since 1997.

Jonathan HooksWeinberg Wheeler Hudgins Gunn & Dial welcomes partner Jonathan Hooks to the firm’s growing Birmingham office. His addition complements the firm’s growth strategy to strengthen its services in a variety of practice areas in the Birmingham market. Hooks represents an array of clients throughout the Southeast, defending manufacturers and distributors of products such as heavy and light machinery, consumer electronics, chemicals, nutraceuticals, medical devices, and pharmaceuticals. He is a member the Alabama Defense Lawyers Association and has been a member of DRI since 2013. He earned his undergraduate degree from Samford University and his law degree from Cumberland School of Law.

If you have a recent achievement or recognition you would like featured, email your news to membership@dri.org. Please note that DRI reserves the right to review all accomplishments to ensure they are adequate for publishing. All submissions will be reviewed for relevance and compliance with DRI’s mission.  Submissions may be edited to conform with our standards and space limitations.

And the Defense Wins

Celebrating DRI Member Wins

Philip Davidson and Jay Skolaut

Philip DavidsonJay SkolautOn June 23, Philip Davidson  and Jay Skolaut, both members of Hinkle Law Firm LLC, received a favorable opinion for their client First Student, Inc., from the Kansas Court of Appeals on the issue of Underinsured Motorist Coverage (UIM). The case is Roger Yarbro v First Student, Inc.

The Court of Appeals concluded that First Student’s summary judgment motion on the issue of notice—which was initially denied by the district court—should have been granted. In so finding, the Court concluded that the claims manager’s initial communication with plaintiff’s counsel, where it was communicated that UIM coverage was likely not available, did not constitute a waiver of the mandatory notice provisions of K.S.A. 40-284(f), which contain numerous conditions precedent to advancing an UIM claim. Having failed to thereafter send the required statutory notice of a tentative settlement to the UIM insurer, plaintiff forfeited his right to UIM benefits.

Tracy Kolb

Tracy KolbOn May 27, 2021, Tracy Kolb, a partner with Meagher + Geer in Bismark, N.D., successfully defended her clients, a physician assistant and orthopedic surgeon, obtaining a complete defense verdict in Williston, North Dakota, in a state court action. The plaintiffs alleged medical negligence by the physician assistant arising out of post-surgical orthopedic care, in which it was claimed a failed tendon repair and infection were not timely recognized. The claim was denied and defended over the course of a six-day trial.

William H. McKenzie and Steven E. Peiper

William H. McKenzieSteven E. PeiperDRI members William H. McKenzie, IV, of Norman Wood Kendrick & Turner in Birmingham, AL, and Steven E. Peiper, of Hurwitz & Fine in Buffalo, NY, recently won a trial in the Southern District of New York deciding a groundbreaking insurance coverage issue concerning TVPRA sex-trafficking claims against a hotel franchisor. Starr Indem. & Liab. Co. v. Choice Hotels Int'l, Inc., No. 20-CV-3172 (PKC), 2021 WL 2457107, at *1 (S.D.N.Y. June 16, 2021). Mr. McKenzie and Mr. Peiper represented Choice Hotels International, Inc. and successfully proved that Starr Indemnity and Liability Company wrongly disclaimed coverage based on its “Abuse or Molestation” Exclusion entitling Choice to Declaratory Judgment after a complete trial on the merits.

Mr. McKenzie presented on the topic of insurance coverage for sex-trafficking claims at DRI’s December 2020 Insurance Coverage & Practice Symposium. Mr. Peiper is slated to speak at DRI’s Complex Coverage Seminar beginning on October 11, 2021, in Columbus, Ohio.   

Keep the Defense Wins Coming!

Please send 250- to 500-word summaries of your “wins,” including the case name, your firm name, your firm position, city of practice, and email address, in Word format, along with a recent color photo as an attachment (.jpg or .tiff), highest resolution file possible (minimum 300 ppi), to DefenseWins@dri.org. Please note that DRI membership is a prerequisite to be listed in “And the Defense Wins.”

In Memoriam

William Howard Boyd

William Howard Boyd

The DRI family was saddened to learn of the passing of William Howard Boyd, Jr., 70, whose DRI membership spanned 37 years. His DRI membership coincided with most of his career as an attorney for his firm, Gallivan White and Boyd, where he practiced from the firm’s Greenville, South Carolina, office. In this capacity, he led the business and commercial litigation team, handling over 200 jury trials and numerous appeals.

“Howard was a beloved and iconic member of Gallivan White & Boyd,” said firm partner and past DRI President John Cuttino. “He had a big voice, a big personality, and an even bigger heart! We will miss dearly our cherished lawyer, mentor, and friend.”

In addition to DRI, Howard was a member of the South Carolina Defense Trial Attorneys' Association, American Bar Association, American Board of Trial Advocates, South Carolina Bar Association, and Greenville County Bar Association, and he was also recognized by Best Lawyers in America in several practice areas.

Howard is survived by his wife of 45 years, Susan Sherer Boyd; his son William Howard Boyd, III; his son Thomas Beattie Boyd, Sr.; his daughter-in-law Jamie Leigh Boyd; his grandson Thomas Beattie Boyd, Jr.; his sister Betty Anne Domm (Terry); his brother Jim Boyd (Joanie); his brother-in-law Tom Sherer (Judy); and many nieces, nephews and cousins.

Condolences may be sent to the family and donations made at https://thomasmcafee.com/obituary/william-howard-boyd-jr/.

Upcoming Seminars

2021 Litigation Skills Seminar
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2021 Medical Liability and Health Care Law Seminar
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2021 Civil Rights and Governmental Tort Liability Seminar
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2021 Product Liability Conference
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2021 Managing Partners and Law Firm Leaders Conference
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2021 Fire Science and Litigation Seminar
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2021 Strictly Automotive Seminar
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Quote of the Month

Like a welcome summer rain, humor may suddenly cleanse and cool the earth, the air, and you.

— Langston Hughes