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Asbestos Medicine

Defending Cases Based on Circumstantial Evidence

By Eric P. Hall

Over the years, asbestos litigation has transformed and evolved considerably. Exposure scenarios have graduated down from insulation- and industrial-based exposures, to home remodeling-based exposures, to home automotive-based exposures. They now have fallen into very specific and unique exposure scenarios, many of which are based predominantly on circumstantial evidence.

There are many potential reasons for such a shift in testimony profile including but not limited to defendant bankruptcies, changes in the scientific literature, and natural evolutions in demographics and exposure settings for younger plaintiffs suffering from diseases alleged to be asbestos related. Regardless of the reasoning, these cases are becoming more common across the country and actually resulting in trials previously unimagined. Herein, we will evaluate how to defend against this recent wave of cases based on circumstantial evidence.

Cases rooted in circumstantial evidence come in all shapes and sizes. One of the most common scenarios encountered includes a situation where a witness testifies that he or she is familiar with the plaintiff and the job site, but never actually saw the alleged work being accomplished. Instead, the witness makes assumptions about the work that was conducted, the asbestos content of products, and even the presumed dust levels created.

In such a case, one may hear testimony about what a plaintiff “must have done” or what his or her “general duties” were at the work location. This testimony is often not supported by further evidence, and thus it falls upon defense counsel to disprove this testimony by investigating additional witnesses and developing evidence independently in order to defend the case.

It is essential to take these cases seriously and explain anticipated concerns with your client as soon as the testimony is provided. While this sort of vague testimony may have resulted in dismissal as recently as five years ago, it may trigger a large settlement demand today. In order to properly defend these cases, intensive investigation often is necessary to explore the array of potential defenses available to a particular defendant.

An attorney must not be lulled into a false sense of security, but rather must actively develop and understand all aspects of asbestos litigation including having a working knowledge of the most relevant medical defenses and knowing how to locate and develop alternate causative exposures. It is also critically important that an attorney understand all potentially relevant case law as well as federal and state regulations at issue given the alleged exposure circumstances.

In cases with basic and undisputed exposures, a case may resolve without the need for hearing on complex motions, but circumstantial evidence cases tend to be extremely motion intensive. Being prepared on historical case law and regulatory developments in the given jurisdiction will be key.

Another important consideration with circumstantial evidence cases is that plaintiff’s counsel is likely to attempt to have your client help them make plaintiff’s case. Heavy written discovery and a request for a corporate representative deposition is to be expected. Plaintiff’s hope is to prove the existence of asbestos on a jobsite or to find conduct that a jury may frown upon in order to help them get beyond the vague nature of the case testimony. Thus, a full understanding of a client’s corporate conduct and corporate document collection is vital.

Plaintiff’s counsel should never know more about your client or your client’s documents than you do. The attorneys representing a given defendant must know their client’s story inside and out well before a corporate witness is subjected to providing sworn testimony. During heated exchanges in a corporate representative deposition is not the time to learn about difficult corporate documents or other challenging aspects of a defendant’s corporate history. It is also not the time to figure out that your corporate testimony or corporate documents support and, in fact, fill in the puzzle pieces to the plaintiff’s case.

In many ways, to defend a circumstantial evidence case, a defense attorney must become part investigator and part plaintiff’s attorney. As an investigator, the attorney must run down all potential witnesses that may dispute, confirm, or expand upon the current exposure allegations. This is an intensive process that requires creative thinking.

The attorney must identify the type of witness that needs to be found. Then, the investigation process begins with internet searches for witnesses in plaintiff’s occupational, military, family, or friend circles in order to assess the available evidence in the case. At some point, a professional investigator may be necessary to supplement these efforts.

These investigations may result in all allegations merely being confirmed, but they may also result in evidence directly contrary to testimony in the case. Either way, it provides the defendant with vital information to the valuation of the case. It is also important to utilize publicly available information from governmental organizations, unions, military units, or other groups that may relate to the alleged exposures. Again, investigative efforts could prove or disprove testimony, or they may supplement existing testimony by the addition of exposures that were not appreciated or thoroughly explored within the confines of witness depositions. Fortunately, most of this information is free to those ready to dig around online or brave the stacks at a traditional library.

Likely, the most important goal when defending a circumstantial evidence case is to determine where the trial themes are headed and understand how to get there. For example:

  • Are you going to be able to defend the case based on the medical evidence alone?
  • Was there another cause for plaintiff’s disease?
  • Can the exposures be disputed by witnesses or documentary evidence?
  • Even if exposure existed, was it enough to cause disease?
  • Did the defendant follow safety regulations applicable to the given the circumstances?

These are essential questions to explore with your client and your trial team in order to refine your defense themes throughout the investigation process. Once the anticipated themes are in place, the legal team can organize and distribute work to allow for efficient information gathering that leads to eventual evidentiary support for those themes.

Still, even after the evidence is gathered, the case needs to get to the finish line, which requires finding the best witnesses to establish foundation for the gathered evidence. Expert witnesses, fact witnesses, and corporate witnesses come with different concerns and preparation needs prior to testimony.

The available evidence needs to be divided up into categories and assigned to the appropriate witnesses. A fact witness may merely provide first-hand testimony and be able to establish foundation for photographic evidence or site maps relating to alleged exposure locations. Whereas an expert witness may be necessary to discuss the mineralogy of a mine determined to be a concern for exposure, a Superfund site located in plaintiff’s neighborhood, or potential exposure doses from alleged or discovered occupational or home activities.

Circumstantial evidence cases are not going away, and in fact, are likely to continue to increase in asbestos litigation. These cases must be taken seriously and defended zealously. The days of clear exposures with a high volume of viable shares from which plaintiffs may gather settlement dollars are limited. Defendants that existed on the periphery for years are now coming to the forefront of asbestos litigation. Witnesses that would have never seen the light of day in deposition years ago are now, in some cases, all that plaintiffs have available to build their case. Do not make the mistake of assuming that weak witness testimony today will result in the dismissal of yesterday.

Eric P. HallEric P. Hall is a partner with HeplerBroom LLC. He focuses his practice predominantly in toxic torts/product liability. He is admitted in Illinois and Missouri as well as the Central, Southern, and Northern Districts of Illinois and the Western District of Missouri. He is a trial attorney with extensive experience in the development and examination of expert witnesses, as well as the development and defense of corporate witnesses. 

DRI News

DRI Announces Strategic Partnership with LawyerGuard

On Sept. 15, 2021, DRI announced its "new and improved" partnership with LawyerGuard, a prominent insurance program manager. This partnership is the first of its kind for DRI.

LawyerGuard provides high-quality professional liability insurance for multiple classes of attorneys. The program has evolved through decades of experience insuring lawyers across the country with a unique understanding of the exposures attorneys face and a team of experienced professionals who know how to provide clients with the appropriate coverage.

"We are delighted to welcome LawyerGuard as our inaugural strategic partner," said Dean Martinez, chief executive officer of DRI. "DRI is committed to the continued advancement of civil defense professionals, and our partnership with LawyerGuard will enable us to better support the profession."

DRI’s new premier corporate partnership platform enables companies to strengthen their commitment to the civil defense community—the highest level of affiliation available to industry partners. Visit the DRI website or contact John Stults to learn more about DRI partnership opportunities.

Asbestos Medicine
DRI Sales and Sponsorship

DRI Voices

I Belong

By Mony B. P. Yin

It is 2021 – more than 41 years since the United States of America welcomed my family and me into this wonderful country. The first time someone told me to “get back on the boat” was on a beautiful Sunday afternoon in 1987. I was barely 17 years old, working as a cashier at a local hamburger restaurant to earn money for college, SATs, AP exams, and college applications. A well-dressed man wearing a dark navy blazer, white shirt, tie, and khaki pants walked up to the register to order his meal. I will never forget the conversation.

I stood there with tears streaming down my face, frozen with fear, and without a comeback. My boss came around the corner and asked me “what’s wrong?” His first words were not “are you OK?” He then turned to the customer to assess what it was that I did wrong. Really? That day was the first time since I learned to speak English that I could not speak. I should have said “I did not come here on a boat. I rode a TWA 747 to San Francisco, California.”

That was 1987. Since that fateful day, I have worked hard to be somebody, to contribute toward society in a meaningful manner so that I could belong. I have worked hard to treat everyone I meet with kindness. I did not expect to be told to “get back on the boat and go back to where you came from” in 2021. I did not expect to be told that “you people gave us Corona.”

Recently, especially since COVID isolated us all from face-to-face contact with our peers, some folks may have forgotten that the United States is rich because of the many different people she welcomed with open arms. She is rich because of the many cultures and languages she fostered to grow.

So, what is it about a virus that makes people disregard kindness and professionalism toward one another? Before you put someone down or speak to them in a condescending tone, why not take the time to get to know them? Find out how long that person has been practicing law before you say

  • “I have been doing this for a long time.”
  • “Your clients have these documents.”
  • “You must give them to me so that my client can obtain class certification.”

A younger lawyer actually uttered these phrases to me during a “meet-and-greet” conference call. What he did not know was that I had already looked him up. He may have been in middle school when I had my first jury trial.  

That interaction was comical and disappointing. His behavior showed me that while he may have done well in law school and passed the bar examination, no one taught him how to be human and not judge before getting to know someone. My clients were non-party witnesses to his attempt to obtain class certification for his client. He needed my cooperation. Insinuating that he has superior intellect was not the way to start the communication. It certainly was not a way to get what he so desperately needed.

Implying that I am somehow inferior or that I do not belong demonstrated his lack of understanding and professionalism. You see, I learn from people all around me, people I have come across in my lifetime. I learn from watching how people interact with one another. From them, I know that kindness matters. I do belong in this county. I do belong in this profession. And, yes, I know about documents my client has and recordkeeping protocols.

I belong. I am here to stay.

Mony B.P. YinMony B. P. Yin is managing attorney of the Perez Morris Hyde New York, Connecticut, and Massachusetts offices. She has extensive litigation experience in construction, premises liability, product liability, aviation-related litigation, New York labor law, and insurance fraud investigation. She also defended employers and insurance carriers in various workers’ compensation matters in Connecticut. Her practice focuses on defense of commercial entities, restaurants, retailers, and professionals in complex, high-exposure litigation, including construction defects and healthcare professionals. 


The Value of Third-Party Testing in Product Liability

By Michael K. Rupp, P.E., CFEI, CVFI

Michael K. RuppSince the advent of man-made tools, product liability has been at the forefront of manufacturer’s minds. Whether it was a spear not flying straight, or a fire purportedly caused by a lithium-ion battery, product liability cases have grown in number and financial impact throughout history. With billions of dollars on the line each year, product liability cases skyrocketed from 2018 to 2019 by just over 22 percent according to LexisNexis. As plaintiff attorneys regularly revise their tactics to maximize settlements and awards, how can defense attorneys ward off these attacks? The answer may be an irrefutable, data-driven defense.

Third-party testing provides verifiable and repeatable results. By engaging in testing, potential bias of plaintiff directed testing is removed while ensuring testing is completed corresponding with the original intent of the product. 

With numerous testing types available — cognitive experiments, scientific literature reviews, timelines, fault trees, and more — physical testing of a product provides the most rigorous analysis. Regardless of the type of testing employed, all methodology relates back to the basic scientific method.

While testing a hypothesis, the process of conducting the testing, collecting data, analyzing, and developing a revised hypothesis may be repeated until a final hypothesis is proven or is established undetermined. Although the scientific method is engaged in all testing scenarios, the authoring and governing bodies for standards vary widely.

Depending on the product being tested, it is important to be aware of the organizations responsible for the applicable standard. Most common are Underwriter Laboratories (UL), American National Standards Institute (ANSI), and American Society for Testing and Materials (ASTM), all of which develop standards for a variety of products ranging from smoke detectors to riding mowers. More specialized, but still pivotal in the product liability space are the National Fire Protection Association (NFPA) and Society of Automotive Engineers (SAE). With the scientific method in place, and applicable standards identified, customized testing protocols can be established and carried out.

In 2014, a residential fire in Port Neches, Texas, cost the lives of the two homeowners. Extensive fire damage was discovered within the master bedroom and the exterior of the structure just outside the master bedroom. The experts for the plaintiff determined the area of origin of the fire to be on the exterior of the structure near an air conditioning condensing unit. They also determined the cause of the fire to be overloaded electrical conductors within the controls compartment of the condenser, identifying that several electrical conductors within the controls compartment had no insulation remaining. Electrical conductors immediately adjacent to them had their insulation intact.

The plaintiff expert’s cause determination was solely based on a comparison of the remaining insulation on the electrical conductors within the controls compartment. The expert witness failed to properly employ the scientific method to their investigation by skipping the “Test Hypothesis” step and selecting their final hypothesis immediately after it was developed.

While defending the manufacturer, the defense utilized the following tactics to combat the plaintiff expert’s opinions:

  • defensive testing
  • ethical wall

These two tactics go hand-in-hand. Defensive testing is self-explanatory, but the ethical wall tactic requires more finesse. When conducting any testing, whether it be as a plaintiff or defendant, the results of the testing can be shielded from disclosed expert. An ethical wall is simply a barrier that prevents the exchange of information. When conducting testing, the disclosed expert may direct how testing should be conducted; however, the testing itself must be conducted by a separate individual and the results may only be shared with counsel. If the results shared with counsel are beneficial, they can be shared with the disclosed expert, or the test can be repeated by the disclosed expert. If the results are harmful, they can be discarded, and the disclosed expert is not able to testify to the testing results.

In this investigation, physical testing was conducted by obtaining an exemplar condenser and applying a torch to the exterior of the of the controls compartment to simulate fire attacking the condenser from somewhere external to the controls compartment. The resulting damage was similar to what was observed at the fire scene, meaning conductors with no insulation immediately adjacent to conductors with intact insulation.

When this phenomenon was explored further, it was determined that the electrical conductors within the controls compartment contained two types of insulation, cross-linked polyethylene (XPLE) and poly-vinyl chloride (PVC). Further research into these materials revealed differing thermal properties, which resulted in the PVC insulation charring and separating from the electrical conductors at lower temperatures than the XPLE insulation. 

Through proper application of the scientific method to the plaintiff expert’s opinions, the hypothesis that an overloaded conductor within the controls compartment of the condenser was disproved with irrefutable data and scientific literature.

Michael K. Rupp, P.E., CFEI, CVFI, is a Sr. Electrical Engineer for S-E-A, which was proud to be a Premier Sponsor of DRI’s Product Liability Conference.Learn more on the DRI website.

DRI Cares

Taking Time for Service

Help Needy Children During DRI Annual Meeting

DRI and #DRICares are delighted to partner with Cradles to Crayons, a non-profit benefiting children throughout Massachusetts, for the service project at this year’s DRI Annual Meeting.

Cradles to CrayonsCradles to Crayons launched in Boston in 2002 and currently has operations in Boston, Philadelphia, and Chicago. The nonprofit provides children from birth through age 12 living in homeless or low-income situations with the essential items they need to thrive—at home, at school, and at play. The organization supplies these free items by engaging and connecting communities. Cradles to Crayons collects new and high-quality used children’s goods and engages thousands of youths and adults in volunteer activities each year on behalf of local children in need. For more information, visit www.cradlestocrayons.org/boston.

DRI Annual Meeting attendees will assemble school supply packages for children. If interested,  convene in the Exhibit Showcase at Hynes Convention Center, Thursday, Oct. 14, from 9:30 AM to 10:15 AM. DRI and #DRICares would appreciate your support, and your participation will be a wonderful way to improve the lives of others in the Boston area. Don’t miss this opportunity!

Backpacks For Boys and Girls

DRI Cares BackpacksAt the DRI Insurance Coverage and Claims Institute July 23 in Chicago, attendees took time for a public service project to benefit the Boys & Girls Clubs of Chicago and Chicago-area children. Attendees packed backpacks for elementary- and middle-school students. In addition to the Pink Pearl erasers and Oxford spiral notebooks, the participants also repurposed office-supply swag from several of the insurance carriers that sponsored the conference.

The mission of Boys & Girls Clubs of Chicago is to enable all young people, especially those who need us most, to reach their full potential as productive, caring, responsible citizens. This amazing group serves a total of 17,000 members at 23 Clubs across Chicago.

Providing Socks to Homeless Shelter

During its annual meeting in Asheville, N.C., the Association of Defense Trial Attorneys (ADTA) held in-person programming and successful social events. During the meeting, ADTA ran a sock drive, which was a much-needed benefit for Center of Hope, an emergency shelter in Ashville operated by the Salvation Army. The sock drive was a huge success, with hundreds of socks brought from all over the United States to Asheville! 

Enabling Children to Succeed 

Despite the lingering uncertainty of COVID-19 and remote work for many members of the Washington Bar, Washington Defense Trial Lawyers (WDTL) was unwavering in its commitment to Treehouse's annual back-to-school drive. Since 1988, Treehouse has been Washington's leading nonprofit organization dedicated to closing the academic gap between youth in foster care and their peers. Treehouse hosts a store where foster youth and their foster parents can “shop” for school supplies with coupons. Thus, like their peers, foster youth pick out their own supplies for the coming school year.  

With WDTL's support and contributions, foster youth in Washington will start off the school year with the necessary tools to achieve academic success. WDTL donated four carloads of backpacks, lunch boxes, calculators, and other school supplies. WDTL members also donated close to $2,000 to the organization.

WDTL hosted a contest for this year's drive, and Physician Direct Services sponsored a complimentary lunch for the firm or person who donated the most backpacks. Congratulations to the winner Forsberg & Umlauf.  A HUGE thanks to the other law firms and individual WDTL members who participated in this year's drive. It’s not too late to donate. Find out more

Sharing The Joy of Reading

Book 'EmDuring its annual meeting in Nashville, Tenn., in August, DRI’s Product Liability Committee, in addition to offering innovative CLE and a variety of social and networking events, held a Book Drive and Fundraiser for Book 'Em Nashville! Book 'Em envisions a future in Nashville in which all children own books and know first-hand the joy and value of reading. Donors brought their new or gently used children’s books — from board books to chapter books (for ages 0–18) — to donate. Money also was raised for Book ‘Em Nashville. The Product Liability Committee donated 26 books and raised $425.


Exploring the Future of Vehicle Electronic Data


Shawn RayRecently, I had the opportunity to discuss 21st century data and how it is changing accident reconstruction. The electronic data currently available in airbag control modules is impressive, but that is just the beginning. The data commonly available to an engineer or collision investigator often includes speed, accelerator position, brake application, and other elements associated with occupant protection features. Many other parameters are being monitored by the vehicle and could be recorded if needed.

Having electronic data does not replace the need for accident reconstruction, rather it has enhanced the analysis. Access to the recorded vehicle data can add elements that previously were left unknown, thus filling in the gaps with more clarity. 

In recent years, safety features have enhanced vehicle performance in a crash scenario and the vehicle’s ability to avoid a crash. These features include collision detection warning, but also include collision mitigation or avoidance and, even, control of some driving tasks. Currently, several vehicles can operate with little or no input from the driver. In select situations, some cars can maneuver without a driver. 

Looking back 100 years, cars looked different, but we operated them in a similar manner as today. Advances in propulsion, control, safety, and comfort have certainly evolved, but the basic concept has not. Since the early development of the automobile, virtually all cars are controlled by a driver operating a steering wheel, accelerator, and brake controls. That likely is going to change. In today’s world, with electronic developments, change can happen fast. Even now, automated safety features or advanced driver assistance systems are taking over before the human driver has time to react. Let’s take a peek into the future of transportation and how automation and autonomous vehicles will not only change how we see the industry but how you use your car.

For good reason, a lot of attention is being given to autonomous vehicles. A fully autonomous vehicle will not only relieve you of the task of driving, but enhance safety, improve efficiency, and reduce traffic congestion. 

Let’s leap forward, into the future, and see why full automation is so exciting. No signs, no lane lines, no speed limits. Why? Because there is no need. The vehicle will know where it is and where other vehicles are as well. Signs and traffic controls along with much of the transportation infrastructure is designed for use by the driver. Once the cars become the drivers, there will be no need for these artifacts. Imagine how different your street may look!

Current platooning strategies with trucking and freight companies have identified many advantages with vehicle-to-vehicle communications that enable cost-saving options. For example, it may be more advantageous to optimize fuel efficiency rather than maintain constant speed, allowing trucks to gain momentum going downhill to help push them up the next hill. 

If we look at what happened when the mobile phone became common, you can imagine some of the features that will become obsolete. Younger readers are not familiar with “landlines” or “long distance calling plans.” A similar transformation is taking place in the automotive and transportation industry. Steering wheels and brake and throttle controls may all one day become as archaic as the calling card.

A fully autonomous, computer-driven transportation system has the potential for significant reduction in traffic issues, including crashes, congestion, efficiency, and more. Change does involve risk. With so many innovations occurring, it is likely some unexpected difficulties will present themselves. The first idea rarely turns out to be the best. Ongoing testing is improving the object detection and decision making necessary to operate without human intervention. Engineers will solve these problems; that is what we do. 

Current vehicles can provide crash data that is highly desirable to the crash reconstructionist. Driver assistance programs will continue improving safety and likely provide additional data. More changes are coming, continuing the evolution toward fully autonomous transportation. Future vehicles will provide improved safety features and additional data from the array of sensors and algorithms.

Shawn P. Ray, P.E., ACTAR, ASE, CFEI, CVFI, CFII, is a senior mechanical engineer for S-E-A, which was a Premier Sponsor of DRI’s 2021 Strictly Automotive Seminar. Learn more about the event.

DRI Annual Meeting

Participate in the DRI Foundation Fundraiser to Support the NFJE!

Support the National Foundation for Judicial Excellence (NFJE) by purchasing tickets for the “DRI Foundation Fundraiser to Support the NFJE,” which is taking place during the 2021 Annual Meeting. Items range from a Louis Vuitton bag to a Peloton to a pair of Christian Louboutin shoes. View the full list of items and purchase your tickets here. Can’t make it to Boston for the Annual Meeting? You can still participate in the fundraiser. Tickets are limited, so purchase yours today!

DRI Member News

Congratulations to Members for Their Achievements

Spencer H. Silverglate, a partner with Clarke Silverglate, P.A., in Miami, has been elected President of the IADC for the 2021-22 term. Mr. Silverglate was formally installed as President at the IADC’s 2021 Annual Meeting. He has been a member of DRI since 1996. Additionally, Mark R. Beebe, of Adams and Reese LLP in New Orleans, will serve as President-Elect. Mr. Beebe is a new member of DRI.

Michael T. Glascott, Robert L. Christie, and Howard Merten recently took office at the 2021 Federation of Defense & Corporate Counsel (FDCC) Annual Meeting. Michael Glascott, of Goldberg Segalla, assumed the role of board chair, passing the baton of the presidency to Bob Christie, of Christie Law Group, PLLC. Also, Howard Merten, of Partridge Snow & Hahn LLP, moved into the position of President-Elect. Congratulations to all! Mr. Glasscot has been a member of DRI since 2009, Mr. Christie has been a member since 1997, and Mr. Merten has been a member of DRI since 1992.

DRI members have been installed as officers of ADTA for 2021-22, including James B. Hood (President), Evelyn Fletcher Davis (President elect); James P. Craig (Vice-President); Dyan J. Ebert (Secretary); Monté L. Williams (Treasurer). Mr. Hood, of the Hood Law Firm, has been a DRI member since 2009; Ms. Davis, of Hawkins Parnell & Young, has been a DRI member since 2000; Mr. Craig, of Lederer Weston Craig, has been a DRI Member since 1994; Ms. Ebert of Quinlivan & Hughes, has been a DRI member since 2001; and Mr. Williams, of Steptoe & Johnson, has been a DRI member since 2006.

Robert L. Gibbs, of Gibbs Travis PLLC, was recently sworn in as the 116th president of the Mississippi Bar during its 2021 Annual Business Session. Mr. Gibbs has been a DRI member since 2016.

Justin A. Redd, a principal at Kramon & Graham, has been elected to the board of directors of The Fund for Educational Excellence. The Fund for Educational Excellence is a nonprofit working to ensure that all children in Baltimore City Public Schools experience an effective and equitable education. The Fund identifies and advocates for best practices that target important issues to students, teachers, and leaders.

A member of Kramon & Graham's Commercial Litigation practice, Justin represents clients in complex civil litigation and in criminal investigations and defense. He is one of the leaders of the firm's Diversity, Equity, and Inclusion committee. In addition to the Fund for Educational Excellence, Justin serves on the board of directors for the Community Law Center and on the Advisory Committee to the Board of Chesapeake Bay Outward Bound School. He has been a DRI Member since 2015.

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.

Affiliates in Action

FDLA Argues for Appeals of Nonfinal Orders

Last month, Kansas Gooden, a representative for the Florida Defense Lawyers Association (FDLA), urged the Florida Supreme Court to adopt a rule that would authorize appeals of nonfinal orders granting or denying bids to add punitive damages claims.

In oral arguments before the Supreme Court, Gooden, a shareholder at Boyd & Jenerette PA, said claims for punitive damages subject defendants to damages that are not covered by their liability insurance policies and force them to submit to invasive financial discovery that would otherwise be off limits.

The case is In re Amendments to the Florida Rule of Appellate Procedure 9.130, case number SC21-129. The FDLA previously submitted a comment in support of the amendment.

In June, Gooden was elected President of the Florida Defense Lawyers Association.

And the Defense Wins

Celebrating DRI Member Wins

John Hughes and Elizabeth Kriz

John HughesElizabeth KrizOn August 11, 2021, Meagher + Geer attorneys John Hughes and Elizabeth Kriz made news when a Fargo, North Dakota, jury returned a complete defense verdict on behalf of The Hotel Donaldson in wrongful death and personal injury lawsuits that were tried together. The plaintiff’s claim of negligence arose out of an assault on a public sidewalk near the hotel’s front door. The plaintiffs alleged the hotel was liable for the wrongful death of a man and serious injuries to another man, who were assaulted by another customer of the bar after they were all involved in an altercation inside the bar and told to leave.

Following a six-day trial where the wrongful death plaintiff suggested to jurors damages between $7 million and $10 million and personal injury plaintiff suggested damages between $600,000 and $1.2 million, the Cass County jury determined The Hotel Donaldson was not at fault for the wrongful death and personal injuries.

Tom Vanderford

Tom VanderfordOn Aug. 30, 2019, a 12-person jury returned a unanimous verdict in favor of Hyundai Motor America (HMA), in a long-running dispute with one of its dealers. The case was tried to Hon. Rosie Alvarado, 438th District Court in San Antonio, Bexar County, Texas. The dealer, Ahmad Zabihian, who owns and operates two Hyundai dealerships in San Antonio under the “World Car” name, appealed the jury’s verdict and the judgment of the trial court. 

On Sept. 2, 2021, the 13th Court of Appeals issued an opinion affirming the trial court’s judgment in all respects. The court rejected Zabihian’ attempt to rewrite Texas law concerning rights of first refusal and further found that he waived his argument by failing to preserve it in the trial court. Zabihian also argued the jury’s findings in favor of HMA were unsupported by the evidence. But the court of appeals rejected this argument, citing plentiful evidence supporting the jury’s finding that HMA did not commit fraud or breach the parties’ agreement. Finally, the appellate court also rebuffed Zabihian’s argument that the jury was given insufficient time to deliberate. In particular, the court of appeals held the affidavit Zabihian’s attorney offered in support of this argument both violated the rules of evidence and was unsupported by the official record.

Among those representing the company at trial was DRI member Tom Vanderford, associate general counsel for HMA. 

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,” and it may take several weeks for The Voice to publish your win.

Upcoming Seminars

2021 Annual Meeting
Click here to view the program.

2021 Cybersecurity and Data Privacy Virtual Seminar
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2021 Defense Lawyers Asbestos Symposium
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2021 Asbestos Medicine Seminar
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2021 Life, Health, and Disability Virtual Boot Camp
Click here to view the program.

2021 Complex Coverage Forum
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2021 Workers’ Compensation Seminar
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2021 Professional Liability Seminar
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2021 Insurance Coverage and Practice Symposium
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Upcoming Webinars

Paying Twice: Protecting Clients from MSP Liabilities
Click here to register.

Low-Dose Asbestos Toxicology and Implications for Health Effects
Sponsored by J.S. Held
Click here to register.

Safety Policies and CDL Manuals: How to Ensure They Are Not Used Against Your Clients to Establish Liability
Click here to register.

Medicare and Medicaid Compliance in Workers' Compensation and Liability Claims
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Building Your Book of Business: Strategies for Establishing Your Personal Brand and Growing Your Law Practice
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How to Effectively Prepare for and Depose an Opposing Parties' Expert Witness
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Distracted Driving: What Causes it, How to Avoid it and How to Defend Against a Claim of Driver Distraction
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Quote of the Month

"Our greatest weakness lies in giving up. The most certain way to succeed is always to try just one more time." 

Thomas A. Edison