The Voice^TM

Through DRI’s 60(+) years, we, like many in the legal world, struggled with promoting women into leadership positions. Between 1960 and 2020, DRI had only two presidents who were women. However, between 2021 and 2025, DRI will have three women to proudly add to that tally. This is a clear indication that DRI takes women’s leadership to heart.

And we are not done.

Currently, 50% of DRI officers and 40% of our board members are women.  And, more importantly, over 50% of our committee chairs are women, showcasing a strong pipeline for future female leaders at DRI.   
DRI’s commitment to women is not limited to its volunteer leadership, either. From a staff perspective, 50% of the leadership positions (Director and above) are held by women. Clearly, DRI does not just talk the talk, but we walk the walk.

We have confronted numerous issues related to women’s equality in recent years through our programming. DRI has addressed the special concerns that many women lawyers feel about their place in the legal profession, with advancement within the firm, the impact of childbearing on one’s career, day care arrangements, and sexual harassment all highlighted during DRI seminars.

Although we have made progress, more must be done.  Earlier this year, DRI’s Women in the Law Committee hosted a seminar focused on empowering women in the law, and this month in The Voice, we will have two articles focusing on women in leadership within DRI.  We will have a column centered on being a lawyer and a mom, as well as an interview with three DRI members and their experiences in the legal space as women, the importance of advocacy and allyship, and their hopes for the future of the legal profession.

We wanted to take this opportunity in March to highlight the progress made at DRI and beyond toward promoting women’s rights, but we know the fight continues every day. We call on allies to use their power to draw attention to and correct abuses where they can, and we want advocates to know we support their work in promoting equality. Our community is our biggest asset, and its power is boundless.

Dean Martinez is the CEO of DRI.

I see it in the endless memes on social media, in the abundance of articles written about the physical and mental load of the household women disproportionately bear, and in discussions with friends and colleagues. I’ve seen countless women leave law firms because of the struggles associated with being a lawyer and a mom. Especially during Women’s History Month in March, it is important to acknowledge the progress made to this point while pushing forward for more.

We can only hope that as we enter the third year of the Covid-19 pandemic that we can start to move forward with our lives. But as we move forward, I do not want to lose sight of everything that has been exposed regarding the struggles of lawyer-moms.

For this reason, I’m very excited about DRI’s focus on the Foundation.

Two integral parts of the DRI Foundation are DRI Cares and DRI for Life. I have enjoyed participating in various charitable events at seminars and meetings over the years. Helping those less fortunate while engaging with the DRI community is always rewarding. I’ve also enjoyed the early morning runs and walks in the fall in Chicago, in the spring in San Diego, and even some virtual yoga classes presented during the pandemic.

I’ve held many roles over the years in DRI. In my current role as the Vice President of the DRI Foundation, I’m looking forward to creating support groups and programing focused on the mental well-being of DRI’s membership. During the past two years, I’ve leaned on my DRI colleagues and friends to help me through the tough days of being a lawyer-mom. The Zoom meet ups, text messages, and community fostered by DRI capture the essence of the values of the DRI Foundation.

In addition, I’ve relied on the experiences and support of my DRI colleagues and friends as my family navigated our son’s needs. I’ve met many DRI lawyers, who, just like me, are parents of children who are neuro-diverse and require a longer runway on their journey. These amazing children create unique challenges for our members, and all parents. One of my goals for the DRI Foundation is to create a network of DRI lawyers who serve as resources and sounding boards for lawyers confronting similar challenges.

In the meantime, we hope you continue to support DRI Cares and its charitable offerings, participate in DRI for Life events, and look to your DRI colleagues and friends to support you physically and mentally in all aspects of your lives. Our community is our greatest strength.

Jodi V. Terranova is Partner at Wilson Elser Moskowitz Edelman & Dicker LLP. She currently serves as Vice President of the DRI Foundation.

Over the years, new tools and technologies have emerged, allowing us to capture precise data that increases our confidence about the accuracy of the elements used in our visualizations. Laser scanners and drone photos give 3D modelers the ability to use quantitative data and photographs to position roadways, signs, buildings, witness marks, and other static components with millimeter accuracy in 3D space. Camera matching tools allow animators to replicate existing photographs taken by first responders and reverse-engineer the objects, people, and vehicles in those scenes and position them in the 3D space. Additionally, data from Event Data Recorders (EDRs) and security camera or dashcam videos can be used to accurately reconstruct vehicle motion. 

On the other hand, human motion can be complex and nuanced, which makes it challenging to capture and convey. Viewers are very attuned to how humans move, so hand animated motions are often oversimplified, which makes them less convincing. However, in recent years, the rapid development and commercialization of motion capture technology (MOCAP) has helped to bridge this gap, extending how we use human performance data in an investigation, and providing an economical solution for incorporating human motion into 3D animations. 

Human Performance Data – Metrics  

Accident investigation and reconstruction require a deep understanding of the interactions between people and the objects or other elements in their environments (i.e. consumer products, industrial equipment, vehicles, or machinery). Biomechanical and human factors analyses incorporate human performance data to assess injury mechanisms, the role of the product/machine being used, and contributing environmental factors.  Additionally, human performance data can provide insight into the credibility of event narratives and whether a described scenario is consistent with sound scientific principles or physical evidence of human-machine-environment interactions. Many techniques and tools--from video to sophisticated instrumentation—can be used to rapidly record, analyze, and quantify complex human-machine-environment interactions. 

MOCAP is a tool used to capture human performance data and allows for whole-body 3D kinematics (movement) and the dynamics (acceleration and forces) to be measured, quantified, and visualized to accurately analyze biological motion within complex interactions between human-machine-environment. MOCAP systems are no longer tethered to a laboratory and can be deployed in various unique environments to gain further insight into these complex interactions to understand how and why an event occurred. It also provides a streamlined path to being able to visualize how the physical evidence supports or aligns with the scientific analysis.  

Human Performance Data – Visualization 

Human models are available from a variety of sources and can be customized to have specific physical characteristics that may be important to a particular event. Visually, the more difficult task is animating the human 3D models in a way that appears realistic and biofidelic. When using 3D tools to reconstruct an event, reliable human motion data is critical to understanding and illustrating how someone moved during an accident. 

For example, an investigator may capture motion data from surrogate actors walking at different speeds to better understand the movements of a pedestrian when struck by a car. Showing the pedestrian walking at different speeds in an animated environment can help investigators analyze different scenarios and determine what events led up to the pedestrian/car interaction. This information can be compared to deposition testimony, security camera footage, and other useful sources of information.

Conclusions 

When combined with data from other reliable sources, human performance data allows visualization experts to reconstruct human movements during an event. It can provide insight into both the motion and forces associated with an event and lead to a better understanding of any related injuries.  This information can then be used to create powerful visuals that can serve as an effective tool for legal teams to convey what happened, leading to a shared understanding of the facts, and improved outcomes. 

ESi was proud to be a Premier Sponsor of DRI’s 2022 Product Liability Conference which was held February 2—4, 2022 in Las Vegas, NV.  Learn more at https://www.dri.org/education-cle/seminars/2022/product-liability

1. What challenges or barriers have you personally faced as a woman in the legal profession? 

Stephanie:  I think the hardest challenge I have had to overcome is proving myself in situations where a colleague or client’s gut reaction is to defer to the “gray-haired” man when I am just as qualified (if not more, depending on the circumstances) to handle the situation, the case, or the trial.  Thankfully, I have been mostly successful in this endeavor, but not without learning first that the best way to overcome this challenge is to make yourself indispensable, exude confidence, and think proactively as often as possible.  I would say that while this challenge still exists from time to time, the reputation we build is our biggest ally in overcoming these challenges when they creep up.  So, my strongest advice: build a reputation of being confident, loyal, hardworking, proactive, and determined – and it will become hard to overlook you in the crowd of your male colleagues.     

Emily: Personally, I have dealt with imposter syndrome throughout my entire legal career—whether it be thinking I did not belong on the board of law review at my law school or doubting whether I could be the only associate on a case in my first year of practice. I quickly learned from professors, mentors, and other women attorneys that I would not be where I am today without a diligent work ethic. We must remind ourselves that we have earned a seat at the table and have a responsibility to make our voices heard.  

Priyanka: The biggest challenge I have faced during my time as a woman in the legal profession is dealing with the fear of the unknown. Not knowing many of the customs and traditions that seem like second nature to seasoned attorneys may take me time to understand and apply in my own practice. I have learned that the best way to overcome this challenge is by using my voice. Asking questions and referencing the many resources available to me not only allows me to move past challenges that may make me feel inadequate but provides me with the tools to move forward knowing those challenges will no longer hold me back. Embracing the knowledge and skill it takes to succeed as a rising women attorney is essential to my practice and allows me to grow without fearing the unknown. 

2. What steps can women in the legal space take to advocate for themselves and other women? 

Stephanie: My personal advice is to first build a strong reputation, which makes it even easier to advocate for yourself (and for others to advocate for you).  Second, surround yourself with women who genuinely care about your growth as an attorney and as a woman in the workplace (i.e. find your “squad”).  They will be your biggest allies as you navigate the profession, and they will also be your champions to celebrate and share your successes.  Finally, be an advocate for other women too.  Sometimes, advocating for others makes it easier to advocate for yourself.  I have found that to be true with my DRI squad – we celebrate each other’s triumphs and publicly advocate for each other on a regular basis.  This not only provides each of us with more confidence, but the bond formed is invaluable and provides so many benefits – both professionally and personally. 

Emily: It is important to participate in mentoring programs and the women’s groups at your law firm. If these programs do not currently exist at your firm, start one and remember to “lift while you climb” – meaning women need to intentionally support other women in our own professional journeys to the top. We are trained to be zealous advocates for our clients, but a key step in being an effective attorney is to first advocate and stand up for yourself.  

Priyanka: First, women should make themselves aware of the barriers they may face and prepare as much as possible to deal with situations that are frequently recalled on by experienced women attorneys. Second, women should be intentional about where they choose to work and the environment in which they dedicate their skills and practice. Ensuring you have chosen to work with those who are willing to support and uplift women goes a long way in developing your career. The biggest takeaway I have gained as a young associate is the power that comes with asking questions and being involved. 

3. During your professional career, have you noticed an improvement regarding gender disparities in the legal profession?  

Stephanie:  Yes, I actually have found an improvement with male colleagues and feeling more equality.  I think that everything is moving in the right direction, but long-term change takes time.  It is important we continue to stay vigilant regarding this issue and continue to celebrate the things that are working, work to change the things that are not, and not ever get too comfortable with the “norm” – until it is a “norm” that you believe to be just and right.   

Emily: Yes, in my personal journey as an associate I have noticed great strides in recruiting more women summer associates and promoting women associates within my firm. For example, I recently joined the bankruptcy team where I have been a part of an active effort to recruit and train more women associates for partnership within this specialized area of law that is primarily male-dominated.  

Priyanka: Absolutely, from every level of the legal industry, the improvement in gender disparities is clear. During my short time as a lawyer, my experiences have been far different from the initial years of the women mentors who have guided me. I anticipate moments in my career where I will experience similar barriers and feel grateful that I have, and will continue to develop, the knowledge and skills necessary to overcome such barriers when they arise. 

4. How can men in the legal space help combat these gender disparities? 

Stephanie: The proof is in the data—there are a higher number of women entering and graduating from law school and a higher rate of women leaving law firms. It is our job as partners at the management level to identify and tackle workplace cultures that are not used to maintaining an equal level of women, this work has to be done from the top.   

Emily: As an initial matter, we must recognize that gender disparities do not always arise from overt actions—both conscious and unconscious gender bias can play a part in the legal profession. Men in leadership roles should be cognizant of double standards and “like-me” bias when hiring and staffing attorneys for cases, which can lead to working with people who look just like them and limit diverse perspectives. Being an ally to women can come about in a myriad of ways, such as addressing inappropriate comments in the moment or the simple act of listening with intention. Too often gender disparities are framed as just women’s issues, but actually, they are issues that affect an entire law firm and business outcomes, and for which we must all hold each other accountable to combat.   

Priyanka: Awareness and inclusion are the first two words that come to mind. When men in the legal industry see groups of attorneys that do not reflect an equal number of women and men, they need to be able to recognize this difference and act on it. If there are not enough women at the firm to do so, suggest examining the hiring and recruiting practices in place and find ways to leverage the pipeline of rising women attorneys. Younger male associates can do the same by engaging in conversations with women attorneys or recommending them for work opportunities when the opportunity presents itself. As young associates, men and women alike may not realize that an act as simple as starting a conversation can go a long way in helping other young associates develop their career.  

5. Do you think these disparities will improve in the next decade? Where do you see the profession heading? 

Stephanie: Of course. As all the data shows, a higher number of women are entering and graduating from law school. The rate at which these disparities will improve largely depends on those with the power to effectuate change: law schools, law firms, clients, courts, and women. However, our article highlights ways in which this change can start from women themselves. 

From my perspective as a partner at Porter Hedges, it is important to note that change can be immediate. Mentoring younger women associates can take many forms, from work opportunities to a conversation over coffee, the experience and history of a woman who is succeeding in this industry is invaluable. Every time the opportunity presents itself, I include women at my firm. In order to do this, I need to be involved myself. As the DRI Women in the Law Committee’s 2022 Program Vice Chair for the Women in the Law Seminar, I was able to include Emily and Priyanka in the various stages of planning and execution. They were able to meet and speak with Justice Lehrmann and Justice Huddle of the Texas Supreme Court in preparation of the Justices’ Q&A panel, which occurred during the Seminar. These experiences and opportunities are necessary outside of the normal workplace because they give women the chance to connect organically with leaders in our profession. 

Emily: It is our responsibility as rising women attorneys to maintain and elevate the progress already underway. That is why I am grateful for the opportunity to be one of the associates on the Women’s Initiative Steering Committee at Porter Hedges. Having a seat at the table allows me to work with other women who are dedicated to ensuring the same positive change and reinforce the “lift while you climb” mentality embraced at our firm. The DRI Women in the Law Seminar was informative in many ways—not only was it exposure to the gender disparities that exist in the modern workplace, but it allowed a safe space to discuss these issues, share common experiences and come together to brainstorm ways to be part of the change. I am confident with leadership like that exhibited at the DRI Women in the Law Seminar, the legal profession is heading in a positive direction. The DRI Women in the Law Committee and similar groups have shown me that efforts are being made to combat gender disparities and change is coming. These efforts will be propelled forward by the women and men who are dedicated to seeing such change.  

Priyanka: The legal profession is headed in a direction that is powered by corporate social responsibility and accountability. From my perspective as a young associate, I believe the profession will tackle this issue at different rates, across regions, law firms, and types of practice. From my perspective as a young associate at Porter Hedges, I am grateful to be a part of a firm that leads the way. It is important for young associates to work in environments that provide support and guidance for women attorneys. Ultimately, it is up to us to take the initiative and show those we work with that we are capable, but when doing so, it is important to ensure you are supported. This type of work environment encourages everyone to be conscious and dedicated to helping women attorneys succeed at an equitable rate. 

Stephanie Holcombe is Partner at Porter Hedges LLP. She works with companies and their owners and executives to manage the full range of issues related to business disputes — from risk control and litigation avoidance to the successful management of ongoing litigation in a strategic and cost-effective manner. She has second-chair trial experience in state and federal court trials and in arbitrations on a variety of issues. 

 Priyanka T. Kasnavia of Porter Hedges LLP represents clients in all types of complex business and commercial litigation.



Emily D. Nasir of Porter Hedges LLP represents clients in all types of complex business and commercial litigation. She also counsels clients in corporate reorganizations and restructurings.

Overview of History of Anti-AAPI Laws 

Consistent with other minority groups, AAPI have long struggled against discrimination, stereotyping, and scapegoating. Below is a brief timeline of anti-AAPI laws: 

1854: On October 1, 1854, the California Supreme Court decided the case of People v. Hall, which reversed the conviction of George W. Hall, “a free white man,” for the murder of a Chinese immigrant. People v. Hall, 4 Cal. 399 (1854). Hall’s conviction was primarily based on the testimony of three Chinese eyewitnesses, which the court concluded was inadmissible based on a tortured interpretation of California laws that prohibited “Indian” (i.e., Native American), “Negro,” “Black,” and “Mulatto” persons from testifying against a white person. Id. at 399-404. The court characterized Chinese persons as “a race of people whom nature has marked as inferior, and who are incapable of progress or intellectual development beyond a certain point[.]” Id. at 404-405. 

The Page Act of 1875: On March 3, 1875, Congress enacted the Page Act, which prohibited the recruitment of laborers from “China, Japan or any Oriental country,” who did not enter the U.S. of their own will or who were brought for “lewd and immoral purposes” (i.e., prostitution). The Act, which was built on stereotypes and scapegoating, reflected the hyper-sexualization of Chinese women and effectively blocked Chinese women from entering the U.S. 

The Chinese Exclusion Act of 1882: On May 6, 1882, Congress passed the Chinese Exclusion Act, which suspended the immigration of Chinese laborers (skilled or unskilled) for a period of 10 years, declared Chinese immigrants ineligible for naturalization, and required every Chinese person to carry a certificate identifying his or her status as a laborer, scholar, diplomat, or merchant. Although the Act was set to expire in 1892, Congress extended it for an additional 10 years and made the extension permanent in 1902. The Act was not repealed until 1943. 

The Alien Land Law of 1913: On May 3, 1913, California passed the Alien Land Law, which prohibited “aliens ineligible to citizenship” (i.e., all immigrants from Asia) from owning land. California expanded the law in 1920 and 1923, barring American-born children of Asian immigrant parents or by corporations controlled by Asian immigrants from owning and leasing land. 

The Immigration Act of 1917: On February 5, 1917, Congress passed the Immigration Act of 1917, expanding the prohibitions against immigration from China and Japan to the “Asiatic Barred Zone,” which included India, most of Southeast Asia, the Pacific Islands, and the Middle East. 

1942: On February 19, 1942, two months after the December 7, 1941, Japanese attack on Pearl Harbor, President Franklin D. Roosevelt issued Executive Order 9066, which authorized military commanders to exclude civilians from military areas. Although the order did not specify any ethnic group, it was used to force approximately 70,000 Japanese Americans out of their homes and into internment camps. 

1944: On December 18, 1944, the U.S. Supreme Court decided the case of Korematsu v. United States, in which Fred Toyosaburo Korematsu, an American citizen of Japanese descent, appealed his conviction for failing to comply with an order to leave his home and report to an internment camp on the grounds that the order was unconstitutional. The court ruled, in a 6-3 decision, to uphold Korematsu’s conviction, holding that the detention of Japanese Americans was a “military necessity” not based on race. Korematsu v. United States, 323 U.S. 214 (1944). In 1983, the Korematsu case was reopened by a pro bono legal team on the basis of government misconduct. On November 10, 1983, Korematsu’s conviction was overturned, but the Supreme Court 1944 decision remained good law until 2018.  

The Rise Of The “Invisible Minority” In The Legal Profession 

Despite this historical background, AAPI are generally invisible in discussions of diversity in the United States. This phenomenon has not escaped the legal profession even though there is a dearth of AAPI in the judiciary, law firm leadership, and law firm equity partnership. Indeed, while the legal profession is moving toward increased diversity, the statistical evidence demonstrates that AAPI lawyers fall squarely within the small numbers of the other minority groups. 

According to the American Bar Association’s (ABA) 2021 Legal Profession Report, in July 2021, 85.4% of U.S. lawyers were white, 4.8% were Hispanic, 4.7% were Black, 2.5% were Asian, 2% were multiracial, 0.4% were Native American, and .3% were Hawaiian/Pacific Islander. ABA, Profile of the Legal Profession (2021) (July 2021), at 13, https://www.americanbar.org/content/dam/aba/administrative/news/2021/0721/polp.pdf. Ten years earlier, 88% of U.S. lawyers were white, 3.9% were Hispanic, 4.7% were Black, 1.7% were Asian, and 1% were Native American. Id. In other words, notwithstanding the prevalence of the model minority myth, AAPI lawyers have not significantly outpaced or outnumbered other minorities and the legal profession remains overwhelmingly white. 

Additionally, the ABA 2020 Diversity Survey reported that lawyers of color, which includes AAPI lawyers, are twice as likely to leave U.S. law firms during a typical year. Id. Notably, in 2019, the attrition rate for white U.S. lawyers was 11%, in stark contrast to Pacific Islander lawyers (22%), Black lawyers (21%), Hispanic lawyers (21%), Asian lawyers (18%), and Native American lawyers (13%). Id. at 21. Yet despite the statistical evidence to the contrary, AAPI are overlooked as minorities to the point that many companies do not consider AAPI candidates as “diverse” for hiring or staffing purposes, highlighting AAPI lawyers’ invisibility due, at least in part, to the impact of the model minority myth. 

Conclusion 

While AAPI are the fastest-growing racial group in the United States, AAPI lawyers remain one of the least represented racial and ethnic groups in the legal profession. The reality is that racial diversity in the profession is making steady, but achingly slow, progress. As we move forward, it is important to reflect on the model minority myth’s impact on AAPI lawyers and their struggles. 

As diverse individuals and AAPI lawyers, we must continue dialogue on racial justice and on the unique challenges we face if we want to be seen and effectuate change. This includes sharing our stories of successes, setbacks, and disappointments, as well as proposing solutions to issues impacting our community. As we continue to shine light on these issues, we are optimistic that the model minority narrative can change. 

Valerie Phan is a Cambodian, Vietnamese, and Chinese American attorney at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. in San Diego, California. She focuses her practice on complex commercial litigation. 

Allison Ng is a Chinese American litigator at Greenberg Traurig’s Atlanta office, who defends high-profile product liability, pharmaceutical, and medical devices cases throughout the country. 

Disclaimer:  
This article is presented for informational purposes only and it is not intended to be construed or used as general legal advice nor as a solicitation of any type.

The brief urges the U.S. Supreme Court to hear this appeal that challenges the Eighth Circuit’s lax interpretation and application of Federal Rule of Evidence 702 (Testimony by Expert Witnesses). Rule 702 was amended more than 20 years ago to reflect the Court’s landmark “Daubert trilogy” of opinions—Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); General Electric Co. v. Joiner, 522 U.S. 136 (1997); and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)—concerning the criteria governing admissibility of expert testimony. In essence, Rule 702 requires federal district court judges to act as “gatekeepers” who shield juries from expert testimony that is not reliable. Inadmissible testimony includes “junk science,” such as made-for-litigation expert opinions that attempt to establish causation in product liability and toxic tort litigation. The amicus brief urges the Supreme Court to grant review and reinforce Rule 702 so that federal courts throughout the United States adhere to the Rule’s purpose by keeping junk science away from juries. 

The brief was written by Larry Ebner, vice chair of the DRI Center for Law and Public Policy and general counsel for the Atlantic Legal Foundation.  

Recently, the Center and ALF submitted comments on proposed amendments to rule 702 which, if adopted, will strengthen federal judges’ expert testimony gatekeeper role. 

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MA High Court Amends Rule to Address “Anchoring”

In 2020, the DRI Center for Law and Public Policy—jointly with the Massachusetts Defense Lawyers Association and others—filed a comment with Massachusetts Supreme Judicial Court in support of proposed amendments to the Massachusetts Rules of Civil Procedure that would allow defendants to respond to plaintiffs’ summation anchoring arguments: a practice whereby plaintiffs’ attorneys are able to request unjustifiably large awards that may unduly affect juries’ damages calculations. This past December, the court responded favorably. 

Background 
In 2014, the Massachusetts legislature amended Mass. Gen. Laws. c. 231, §13B to allow plaintiffs in civil actions to request a specific amount of damages during closing arguments. Because the plaintiff in Massachusetts presents closing arguments last, after the defendant, the statute created the potential for tremendous unfairness—the plaintiff could request a specific amount of damages with the last word at trial, and the defendant (who already gave its closing argument) would be deprived of any opportunity to respond. Recognizing the potential inequity of the situation, courts in Massachusetts addressed the issue in several ways, including by requiring plaintiffs’ counsel to disclose to defense counsel in advance of closing arguments whether the plaintiff will ask the jury for a specific damages amount (and if so, what amount) or give defense counsel a limited opportunity to respond as to the amount of damages requested. Amended Rule of Civil Procedure 51(a) codifies the practical solution adopted by the trial courts to address a problem that was not addressed by the legislature. The amended rule ensures that civil trials remain balanced for all parties. Amended Rule 51(a), which applies to trials that begin on or after March 1, 2022, provides: 

By deleting the current Rule 51(a) and inserting in lieu thereof the following: 

(1) Time for Argument. 

Counsel for each party shall be allowed thirty minutes for argument; but before the argument commences, the court, on motion or sua sponte, may reasonably reduce or extend the time. When two or more attorneys are to be heard on behalf of the same party, they may divide their time as they elect. 

(2) Arguing Damages. 

During closing arguments, the parties may suggest a specific monetary amount for damages. If a party suggests a specific monetary amount for damages during closing argument without having provided notice of the intent to suggest the amount to all other parties reasonably in advance of closing arguments, the court shall allow the opposing party a reasonable opportunity to address the amount to the jury.

Kelly joined DRI as a young lawyer in 1990.  Her first seminar was Employment Law - at that time there were only three women in attendance and most attendees were more experienced.  When she returned from that seminar, she called DRI and asked if it had anything specific for young lawyers.  She was introduced to two other young lawyers and the Young Lawyers Committee was formed.   A few years later, she advocated for the formation of the Appellate Law Committee and also supported Laura Proctor in the formation of the Corporate Counsel Committee.  After Chairing each of these committees, she served on DRI’s Law Institute, Board of Directors for two terms, and served as Secretary/Treasurer for two years.  Kelly continues to support DRI and is proud to select her outside counsel from DRI friends and members.   

Kelly left private practice in 2000 to work in house at a publicly traded second-tier auto manufacturer, initially handling litigation but eventually handling many other legal needs including mergers and acquisitions.  In 2007, she moved to a publicly traded insurance group where she handled compliance, mergers and acquisitions and operational matters.  In 2015, an opportunity arose to return to the manufacturing sector with WABCO Holdings Inc., then a publicly traded commercial vehicle braking and safety components supplier, that was starting a North American legal department.  Kelly developed and guided the North American legal team and in 2020, WABCO Holdings Inc. was purchased by ZF Group. And most recently, in January 2022, WABCO was merged into ZF’s Commercial Vehicle Systems Division, and Kelly serves on that legal team. 

Since joining WABCO/ZF, Kelly’s responsibilities have increased and she has grown in her role as regional counsel. She is on the Americas leadership team and serves not only as a lawyer, but also as a business advisor and valued partner. In the CV Division, the legal team is embedded with the business and they participate in creating strategy and operational planning. The legal team has been instrumental in streamlining work flows and is able to be a proactive member of the business due to early involvement in new projects and matters.  Each year, Kelly’s team creates a strategic plan for the legal department, focused on how it can assist the business to meet the goals of its strategic plan. She is proud of her energized team, which includes a Brazilian attorney and third year law student.  In 2021, Kelly reported to the Vice President of Legal for the CV division, who is located in Brussels, Belgium. 

COVID has brought many changes to the business.  Kelly’s current favorite song “Roll With the Changes” by REO Speedwagon, which is the tagline for how agile the business has grown to face issues like the virtual workplace, semiconductor shortages, raw material price increases, supplier shutdowns in Malaysia, Thailand, Japan, the ship stuck in the Suez Canal and many other challenges 

For the past five years, Kelly has been actively involved in M&A.  In her first year at WABCO, the company acquired two US companies, within months of each other.  Two years later, WABCO acquired two more companies, again with M&A acting in parallel.   At the start of the COVID shutdown, ZF Group was in the process of finalizing its acquisition of WABCO.   As a part of the acquisition, the Department of Justice required WABCO to sell its steering division because ZF had a steering division (the former TRW).  Kelly was in integral part of the team managing the sale of the steering division to a competitor.  

Kelly loves working for an international company.  In her Auburn Hills office, there are employees from a total of 14 nationalities – a truly diverse workforce including employees from Germany, Poland, Netherlands, Belgium, India, Brazil, China, and others.  Often during meetings and conference calls, participants must work to understand different accents and explain catch phrases for other cultures. She really enjoys hearing different perspectives and realizes that more voices mean better solutions.  

To relax, Kelly enjoys going with her husband and dog to their cottage on Neyaashiinigmiing Indian reservation on the Bruce Peninsula in Canada (photo: view from cottage). She was not able to visit in 2020, and only at the beginning of August of 2021 was she able to travel there.  While at the cottage, Kelly enjoys spending time swimming, fishing and reading.  She enjoys reading books/authors with a different perspective.  Here are some of her favorites: 

• Pulitzer Prize finalist Ann Patchett’s book Bel Canto: This book is about an opera singer traveling to South America for a private performance, where she and others are kidnapped.  The book centers on the different nationalities living in the compound, trying to co-exist and solve problems during the kidnapping;   
• Pulitzer Prize winner Jhumpa Lahiri writes about people of different cultures coming to the US and the complications of assimilating to another culture. Kelly’s favorite books by Lahiri are The Namesake (a young adult growing up in the US versus his parents who originated from Calcuta) and Whereabouts (unique perspective using Italian background);  
• Sing, Unburied, Sing by Jesmyn Ward, in which different narrators tell the story of a black family in post-slavery Mississippi; 
• An American Marriage by Tayari Jones, how a marriage breaks down after husband’s wrongful conviction;  
• Cutting for Stone, by Dr. Abraham Verghese, who was born in Ethiopia to Indian parents, who all eventually moved to the US.  He is a professor at Stanford University Medical School.  His book, centers on twin brothers over several decades in India, Ethiopia and America; and, 
• Red at the Bone by Jacqueline Woodson, a book where racism, class and history impact life from different perspectives.   

Reading these books has helped Kelly understand different cultures, how it feels to move and to assimilate into another culture, and to learn more about the history of people from other countries. She is definitely a Champion of inclusion giving others the opportunity to engage and collaborate.

Rebecca A. Nickelson is Partner at Sinars Slowikowski Tomaska, with twenty years of experience representing clients in bet-the-company litigation. She focuses her practice on toxic tort claims including products and premises liability, asbestos and other toxic torts. Rebecca has successfully defended her clients in thousands of cases to dismissal without payment, settlement and jury verdict.

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DRI member Brandon D. Cox has been elevated to equity Partner/Shareholder at Greenberg Traurig, LLP. Mr. Cox has been a DRI member since 2015.

At the invitation of the American Constitution Society and Barry Law School, DRI member Dennis Wall presented his paper on the Presumption of Public Access to Judicial Records:  What is the Constitutional Underpinning? at the American Constitution Society's Seventh Annual Forum.

Freeman Mathis & Gary, LLP, a leading nationwide litigation firm, is pleased to announce the expansion of the firm’s US footprint to Illinois with the addition of five attorneys formerly practicing with the law firm of Goldberg Segalla in Chicago. FMG’s newest office is the firm’s 28th office servicing clients in 15 states. The firm now has over 260 attorneys, which are led, by partner and office chair and DRI member Jonathan Schwartz. Mr. Schwartz currently serves as Vice Chair of DRI’s Insurance Law Committee and has been a DRI member since 2007.

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Stellpflug Law PLLC Certified by the Women’s Business Enterprise National Council (WBENC)

Stellpflug Law PLLC is pleased to announce that the firm has received national certification as a Women’s Business Enterprise (WBE) by the Women's Business Development Center-Midwest, a regional certifying partner of the Women’s Business Enterprise National Council (WBENC).

“As a certified woman-owned business, we are resolute in our obligation to enhance opportunities for women in our industry ꟷ and in those we serve,” says partner Janet Stellpflug. “We look forward to working with this innovative group to serve companies who share this commitment and expect an unsurpassed legal defense.”

WBENC’s national standard of certification is a meticulous process including an in-depth review of the business and site inspection. The certification process is designed to confirm the business is at least 51% owned, operated and controlled by a woman or women.  Stellpflug Law PLLC is 100% woman owned.   

About Stellpflug Law

As a full-service, woman-owned commercial litigation firm, Stellpflug Law PLLC defends a variety of complex business disputes – with particularly strong credentials in construction and product liability matters.  Learn more at www.sl-pllc.com.

About WBENC

Founded in 1997, WBENC is the nation’s leader in women’s business development and the leading third-party certifier of businesses owned and operated by women, with more than 13,000 certified Women’s Business Enterprises, 14 national Regional Partner Organizations, and over 300 Corporate Members. More than 1,000 corporations representing America’s most prestigious brands as well as many states, cities, and other entities accept WBENC Certification. For more information, visit www.wbenc.org.

Press Contact: Liz Hersey - ldh@sl-pllc.com - 612-447-0054

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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.

DRI members K. Justin Hutton and Elizabeth Hutton of the East Tennessee firm of Herndon, Coleman, Brading & McKee, LLP obtained a defense verdict on behalf of a vascular surgeon in Tanya M. Freeman vs. James R. Evans, M.D. in the Circuit Court of Washington County, Tennessee on November 23, 2021.  The Plaintiff alleged that the physician breached the applicable standard of care by recommending a HeRO Graft for her permanent dialysis access, as she alleged she was not a proper candidate for the device. Further, she alleged that the physician breached the standard of care by placing the device in a vein that had not been properly studied by the manufacturer of the device.  Last, she contended that the physician committed medical battery by failing to obtain proper informed consent prior to the surgical procedure.  Unfortunately, approximately two (2) months after placement of the HeRO Graft, there was a catastrophic failure when the device broke in two, with a portion of the device migrating into the Plaintiff’s heart.  She claimed she suffered extensive pulmonary embolisms and other injuries due to the physician’s actions.  The defense asserted that the physician’s recommendations for use of the device and the location of device placement were appropriate and did not cause the catastrophic failure of the device.  The physician also asserted that he obtained proper consent from the patient prior to the procedure. 

After seven (7) days of trial, the jury returned a unanimous decision in favor of the physician on all counts.

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Michael Correnti and Philip Kegler of McDonald Toole Wiggins PA in Orlando, Florida, and Quentin Urquhart and Kelly Brilleaux of Irwin Fritchie Urquhart & Moore LLC in New Orleans, Louisiana, won a summary judgment dismissal with prejudice for Crown Equipment Corporation in a suit brought by an operator of the RM6000, a forklift designed and manufactured by Crown.

 On January 20, 2022, the Honorable Sarah S. Vance of the United States District Court for the Eastern District of Louisiana granted final summary judgment in favor of Crown Equipment Corporation (Crown), a forklift manufacturer based in New Bremen, Ohio and dismissed Plaintiff’s lawsuit with prejudice.

Plaintiff Dawson Vallee had filed a product liability lawsuit under the Louisiana Products Liability Act (“LPLA”) arising out of a May 3, 2019 accident involving a Crown stand-up rider RM6000 lift truck at Republic National Distributing Center’s warehouse in Harahan, Louisiana.

Initially, the Court granted Crown’s Motion for Summary Judgment regarding Plaintiff’s claims for negligence and negligent maintenance and repair, holding that such claims were barred by the exclusivity provisions of the LPLA.  As such, Plaintiff’s only remaining claim was based on defective design. Plaintiff claimed the forklift’s design was defective primarily based upon the open operator compartment. Plaintiff further alleged that alternative designs, including an operator compartment door and changes to the brake pedal design, would have made the design of the RM6000 reasonably safe.

Crown moved for summary judgment on Plaintiff’s design defect claims because Plaintiff’s experts failed to identify a specific alternative design for the RM6000 that could have prevented Plaintiff’ injuries.  On January 20, 2022, the Court agreed with Crown and granted Crown’s Motion for Summary Judgment which resulted in Plaintiff’s case being dismissed with prejudice.  In doing so, United States District Judge Sarah S. Vance issued a 30-page Order which ultimately found “[b]ecause plaintiff’s experts have failed to sufficiently identify a specific alternative design for the Crown RM6000 that could have prevented plaintiff’s injuries, he is unable to satisfy his burden under the LPLA.”  As such, Plaintiff’s lawsuit was dismissed with prejudice. 

The case is Dawson Vallee v. Crown Equipment Corp. of Ohio, et al., No. CV 20-1571, 2022 WL 179532 (E.D.La. Jan. 20, 2022).

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Irwin Fritchie Urquhart & Moore’s Summary Judgment Win Affirmed by U.S. Fifth Circuit

NEW ORLEANS, LA – The United States Fifth Circuit affirmed a summary judgment win obtained by Irwin Fritchie Urquhart & Moore LLC, dismissing all of Plaintiff’s claims against Defendants American Trucking & Transportation Insurance Company (ATTIC) and MVT Services, LLC (MVT), in a case involving alleged injuries following a tractor-trailer tire blowout. In its written reasons, a panel of the United States Court of Appeals for the Fifth Circuit, including Judges Jones, Haynes, and Costa, held that Plaintiff failed to raise a genuine issue of material fact as to whether the tractor-trailer’s tire had a defect that presented an unreasonable risk of harm under Louisiana law. The Opinion was issued on February 17, 2022.

Lead counsel for ATTIC and MVT, Matt Bailey of Irwin Fritchie Urquhart & Moore in Baton Rouge, LA, along with Kelly Brilleaux with the firm’s New Orleans office, prepared the Brief on behalf of the Appellees. Ultimately, the Fifth Circuit affirmed the ruling of the United States District Court for the Western District of Louisiana, adopting many of the arguments set forth in Appellees’ Brief.

In its Opinion, the Fifth Circuit held that Plaintiff failed to offer any admissible evidence regarding the tire’s failure or surrounding circumstances and, further, that even if she had raised such an issue of fact as to whether the tire was defective, she nonetheless also failed to raise a genuine issue of material fact as to whether MVT or the driver of the tractor trailer knew, or should have known, of any such defect. The Fifth Circuit also rejected Plaintiff’s argument that the doctrine of res ipsa loquitur applied to her claims, calling the theory “plainly inapposite” to the matter. 

The case is Tyrea Arceneaux v. American Trucking & Transportation Insurance Company Risk Retention Group; MVT Services, L.L.C., d/b/a Mesila Valley Transportation, No. 21-30196 (5^th Cir. 2/17/2022).

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National Director Tony Sbarra, a shareholder at Hermes Netburn in Boston, MA and Mackenzie Brockmyre, a Hermes Netburn associate, recently obtained summary judgment for Western Star Truck Sales, Inc. in Taunton Superior Court.  The case, N.E. Bridge Contractors, Inc. v. Aspen Aerials, Inc., et al., C.A. No.: 1873CV00708, involved product liability claims against the defendants stemming from a truck accident that occurred in 2018 in Alaska.  Western Star assembled a cab and chassis which was purchase by the plaintiff, N.E. Bridge, who shipped it to Minnesota where the co-defendant, Aspen Aerials, installed a bridge inspecting crane on it.  The fully assembled vehicle had been used without incident for bridge inspections throughout the country for approximately 30,000 miles before the accident.  The vehicle was totaled, and N.E. Bridge claimed economic damages of over $1,500,000 as a consequence of the unit being unavailable to it for previously scheduled jobs.  N.E. Bridge brought product liability claims against both Aspen Aerials and Western Star for negligent design, failure to warn and breach of express and implied warranties.

Inspection by the N.E. Bridge’s insurers following the accident determined that the steering of the struck malfunctioned due to the front suspension giving way, which was caused by Aspen Aerial’s improper torqueing of its suspension bolts.  N.E. Bridge answered interrogatories propounded by Aspen Aerials and attributed fault for the accident solely to it.  N.E. Bridge also retained engineer Craig Sylvester of Jensen Hughes, who confirmed that the accident resulted directly from Aspen Aerial’s improper installation of its bridge inspection crane.  N.E. Bridge’s president, and corporate designee, testified that Western Star was not at fault for the accident.  Western Star moved for summary judgment on this record, arguing that N.E. Bridge had offered no evidence, testimonial, expert or otherwise, to support its claims against it.  N.E. Bridge opposed, arguing that Western Star negligently designed its cab and chassis in a manner that allowed Aspen Aerials to improperly install its bridge inspection crane and, further, that it failed to warn of the dangers of doing so. 

The Court, Squires-Lee, J., agreed with Western Star that expert testimony was required, at the summary judgment stage, to support N.E. Bridge’s theories.  The Court also agreed that Western Star was under no duty to warn either Aspen Aerials or N.E. Bridge because both were sophisticated users under Massachusetts law, but that Western Star had sufficiently warned despite the lack of a duty to do so.  As a result, The Court granted the motion for summary judgment.

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Jason Hendren and Ryan Blue of Hall Booth Smith, PC in Rogers, Arkansas recently defended a spinal discitis/paralysis case in Independence County, Arkansas. Plaintiffs alleged $10,000,000 in damages related to what they claimed to be misdiagnosis and mistreatment of spinal discitis and osteomyelitis that gradually resulted in the development of epidural and paraspinal abscesses and finally, paralysis. Specialists involved as expert witnesses included those practicing internal medicine, emergency medicine and neurosurgery. The trial lasted seven days with significant motion practice and a hearing during the intervening weekend. The jury voted 12-0 in favor of the defense after deliberations of less than two hours. Plaintiffs’ counsel confirmed shortly thereafter that no appeal would be filed. COVID-19 presented challenges during trial, but social distancing precautions were observed and fortunately no exposures or infections were reported.

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Keep The Defense Wins Coming!

Please send 250–500 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, 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.

The Litigation Skills Committee collected donations. Some donations went directly to NPHY and portion of donations collected were used to purchase supplies for the committee to assemble hygiene care packages. Committee members gathered together on February 2^nd, Tuesday afternoon, to assemble the care packages. Each care package included hygiene wipes, deodorant, toothbrush, comb, toothpaste, and snacks. We were able to assemble 50 care packages to donate to NPHY and support local homeless youth!

The Litigation Skills Committee and DRI Cares is incredibly thankful for those who donated their time and money to help those in need. More information about NPHY can be found at https://nphy.org/.

Breakfast to Begin the Day 

Eat consistently!  That is what Audra Wilson, RD, LDN, a dietitian at Northwestern Medicine stresses.  See generally Audra Wilson, The Best Times to Eat, Northwestern Medicine, https://www.nm.org/healthbeat/healthy-tips/nutrition/best-times-to-eat (last visited Sept. 13, 2021).  Wilson suggests eating breakfast within an hour of waking up.  Id.  By eating within that first hour of the day, we program our bodies to expect breakfast—the meal that provides us the necessary energy to begin our days—while also preventing breakfast from morphing into a mid-morning snack.  Id. 

Eating breakfast does wonders.  While it may be tempting to skip it, especially because time is running short, try your best to eat something!  Even if it is grabbing an apple or banana on the run, that will prepare you well for the rest of your day.   

Consistent Lunch 

Lunch is always welcomed, as it is so nice to break up our days while also getting to eat.  We need lunch to keep our energy levels up as we continue to grind at work.  By not eating lunch, some of us can become hangry.  (Hand up!)  Wilson states that lunch should be eaten roughly four to five hours after breakfast.  Id.  If that is not possible, and lunch gets pushed off until six or seven hours after breakfast, then you should consider eating a snack in between breakfast and dinner.  Id.  As far as what to eat, Wilson suggests eating a mix of protein and carbohydrates, such as a low-fat cheese stick with an apple.  Id. 

By consistently eating lunch four to five hours after breakfast, our bodies become programmed to eat then, which can cut down on unnecessary snacking. 

Eat a Heavy Dinner? 

No!  Do not do that.  Dinner should, in theory, follow the same schedule, being eaten approximately four to five hours after lunch.  Id.  From a practical standpoint, this is often not possible, so a light snack may be needed between lunch and dinner.  Another snack suggestion from Wilson is to eat vegetables with one-fourth cup of hummus.  Id.  Whatever the snack may be, try to avoid eating chips, sweets, and the like.   

While dinner is often the meal that is not overlooked or skipped, what is consumed after dinner also is important.  While Wilson does not discuss dessert, we are often told not to include it in our diets.  However, if you can eat some dessert within reason and not overindulge, go for it!  Just try not to eat dessert too close to bedtime or late in the evening.   

Programming our bodies to eat breakfast, lunch, and dinner at approximately the same times each day, to the extent possible, can develop a schedule that cuts out unnecessary snacks and unhealthy habits.  At the same time, enjoy the meals you eat!  Try not to rush when you are eating, as slowing down and focusing on the foods helps you digest your food better.  Id.  This is sometimes easier said than done, but it is possible! 

Sam Heaney is an attorney at Martin, Pringle, Oliver, Wallace and Bauer, L.L.P. in Overland Park, Kansas, and he practices in both Kansas and Missouri. Sam has been a DRI member since 2014. Sam’s practice focuses on general insurance defense litigation, which includes health care and nursing home defense, personal injury defense, and premises liability defense.