The Voice^TM

Enjoy an Evening at the Alamo, sponsored by LawyerGuard, to network and catch up with friends while enjoying hors d’oeuvres, cocktails, wine, and assorted beers at the Alamo’s Ralston Family Collections Center. 

Take a stroll down the San Antonio River Walk, where you can enjoy sightseeing, shopping, and delicious dining options. Explore the River Walk by foot or jump aboard a river barge for a guided tour. 

This fall, embrace the culture of San Antonio while connecting with peers at DRI's 2023 Annual Meeting, October 25-27. Save your spot today.

According to an amendment to Federal Evidence Rule 702, the proponent of expert testimony must demonstrate by the preponderance of the evidence that the expert's qualifications, the sufficiency of the basis of the expert’s opinions, and the application of the expert’s methodology warrant admission. The amendment makes it clear these are questions of weight, to be determined by the judge. This important amendment has been approved by the U.S. Supreme Court and sent to Congress. Unless both houses of Congress vote to reject the amendment, it will take effect on December 1, 2023. 

The DRI Center for Law and Public Policy has testified and actively supported amendments to this rule seeking clarification of how courts should address the issue of whether an expert is qualified to offer opinions and whether the basis for the opinion is sufficient to allow the opinion and data to be admitted. 

The amendment sent to Congress states that expert testimony cannot be admitted unless the proponent "demonstrates to the court that it is more likely than not” that all four of the conditions governing expert testimony have been met. This language makes it clear that the admissibility of expert testimony is governed by Evid. R. 104(a). That rule requires the judge to try and decide the question of whether the expert is qualified and whether the expert evidence is admissible using the preponderance of evidence standard: more likely than not. 

Further, the amendment to part (d) of the rule now emphasizes the importance of the judge's role as a gatekeeper, using the preponderance of evidence standard, to determine if an "expert's opinion reflects a reliable application of the principles and methods to the facts of the case."  

The Advisory Committee on the Rules of Evidence Note makes the importance of this standard explicit. Stating that "many courts have held that the critical questions of the sufficiency of an expert's basis, and the application of the expert's methodology, are questions of weight and not admissibility.”  These rulings are an incorrect application of Rules 702 and 104(a)” (emphasis added). The Committee Note concludes by observing that "[n]othing in the amendment imposes any new, specific procedures. Rather, the amendment is simply intended to clarify that Rule 104(a)'s requirement applies to expert opinions under Rule 702." 

In other words—because this is a clarification of the rule—experts and their evidence should be measured by these standards, even now. In fact, there is at least one case from the Fourth Circuit that has already used this understanding to reverse a decision allowing a plaintiff's expert opinion to be introduced, Sardis v. Overhead Door Corp., 10 F.4th 268. 

The Center is planning a webinar for this summer to brief members on this amendment and how it should be used in federal court and how this clarification of Rule 702 can also be used to control expert testimony in state courts.  

Jim McCrystal, Chair of the Center’s Legislation and Rules Committee, is Of Counsel with Sutter O’Connell in Cleveland, Ohio. He has spent four decades handling product liability cases and now has a national practice in that field. Jim has represented the manufacturers of tires, automobiles, trucks, farm equipment, industrial products, and power systems as well as handling construction litigation and commercial disputes. In addition to his work with clients, Jim has been an active DRI member including service on the Board of Directors and as Ohio State Representative. He is also a past member of the Board of Directors of the Product Liability Advisory Council and is a Past President of the Ohio Association of Civil Trial Attorneys and the Cleveland Association of Civil Trial Attorneys. 

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Generation, storage, transportation, handling, and usage of hydrogen is not new. In fact, hydrogen has been used safely in numerous industrial applications for decades. However, new applications for hydrogen such as fuel cell electric vehicles (FCEV), residential generation and storage systems, hydrogen powered autonomous vehicles, and blending hydrogen with natural gas for heating and power generation broaden the group of users. 

Hydrogen stands out due to its unique properties. It is the lowest density gas and as a result, it rises rapidly when released in air and diffuses with relative ease through materials including many rubbers and plastics. Hydrogen is extremely ignitable and flammable over a broad concentration range. Thus, a small leak of hydrogen into air or a small leak of air into hydrogen can create an ignitable mixture. Hydrogen also has a very low minimum ignition energy. Even weak static electric discharges that are unlikely to ignite typical hydrocarbons can ignite hydrogen. Table 1 compares flammability properties of hydrogen to methane and propane, typical gaseous fuels. Furthermore, hydrogen burns with an almost invisible flame in air and often cannot be detected without thermal or optical sensors.  

Hydrogen is odorless so that leaks are not easily detectable.[1] Common odorants added to natural gas and propane may adversely affect applications that require high purity hydrogen such as fuel cells. 

Hydrogen has been transported and used in industry for decades, and it is subject to DOT[4] and OSHA[5] regulations. Fire codes, i.e., International Fire Code (IFC) and NFPA 1, Fire Code, and other NFPA codes and standards provide specific recommendations for hydrogen.[6],[7] Furthermore, industry associations such as the Compressed Gas Association (CGA) publish hydrogen specific guidance as do organizations ranging from ISO, ANSI, ASME and ASTM to FM Global and UL (to name a few).[8],[9] However, as the typical consumer, scale, and use conditions change, these codes and standards may need to be revised for new applications.

Hydrogen occurs on Earth mostly in molecular forms such as water and organic molecules. Thus, different production technologies have been developed over time and are commercially relevant today. In principle, hydrogen can be obtained from four sources: (1) water, by splitting it electrochemically into hydrogen and oxygen, (2) hydrocarbon raw materials such as natural gas, coal, or oil as well as biomass, (3) purposefully made, hydrogen-containing chemicals such as ammonia or methanol, and (4) by-product in industrial processes, mainly in the chemical and metallurgical industry. Figure 2 lists several of these production processes with their simplified reactions. 

Historically, hydrogen has been produced on industrial sites. At industrial scale, a large steam methane reformer (SMR), the predominant industrial hydrogen production technology, can produce more than 40,000 lb/h of hydrogen from natural gas. In 2020, the annual world-wide hydrogen demand was approximately 200 billion pounds.[10] Almost all hydrogen is used in petroleum refining, chemical plants (mainly to produce ammonia, a precursor for fertilizers, and methanol), and steel mills (for direct iron reduction).[11] Hydrogen is also generated as by-product, e.g., during the electrochemical production of chlorine.  

While lower capacity SMRs exist, small-scale hydrogen generators for commercial or residential locations are currently under development and will begin to enter the market.  

Multiple standards are applicable to hydrogen generation system including International Fire Code (IFC), NFPA 2 (Hydrogen Technologies Code), ISO 22734 (Hydrogen generators using water electrolysis — Industrial, commercial, and residential applications), and OSHA regulation 29 CFR 1910.119 (Process safety management of highly hazardous chemicals, or PSM). NFPA 2 applies to hydrogen generation systems with a rated capacity between 1.3 oz/hr to 220 lb/hr (36 g/hr – 100 kg/hr).[12] NFPA 2 specifically considers electrolyzers, reformers and gasifiers.[13] ISO 22734 considers electrolyzers but not reformers or gasifiers. OSHA’s PSM regulation applies to processes when more than 10,000 lb hydrogen (or other Category 1 flammable gases) is involved.[14] 

Exponent is proud to serve as a Premier Sponsor for DRI's Fire Science and Litigation Seminar. Visit https://www.exponent.com/capabilities/fire-protection-engineering# for additional information and resources.

On May 15, 2023, the Supreme Court denied defendant energy companies’ certiorari petitions seeking review of the Third Circuit’s decision in City of Hoboken v. Chevron Corp., which rejected defendants’ attempts to remove climate change cases filed in state court based on state law to federal court (the Court had similarly denied certiorari for five other similar cases on April 24, 2023).  

In these cases, Delaware and the City of Hoboken sued the energy companies in state court, alleging various state law claims for environmental harms they allegedly suffered as a result of the companies’ production, marketing, and sale of fossil fuels. The defendants tried to remove the cases to federal court, arguing, inter alia, that federal jurisdiction exists because the claims are preempted by federal common law or necessarily require the resolution of a substantial, disputed federal issue. The district courts rejected these arguments, and the Third Circuit affirmed, joining the First, Fourth, Ninth, and Tenth Circuits, which have refused to allow removal of similarly situated cases to federal court. 

First, the Third Circuit reasoned that federal common law does not completely preempt the state law claims because, for there to be complete federal preemption, there must be a federal statute that authorizes federal claims vindicating the same interest as the state claim. Second, the Third Circuit reasoned that the federal issue the defendants identified—whether federal common law governs the state law claims—is not a substantial federal issue for jurisdictional purposes because, as previously concluded, federal common law does not completely preempt the state law claims. However, the Third Circuit acknowledged that federal common law could provide the basis for an ordinary preemption defense.  

Most recently, in Minnesota v. API, the Eighth Circuit joined in similarly refusing to allow the energy companies to remove a climate change case based on state law to federal court. The Eighth Circuit rejected defendants’ arguments that federal common law completely preempts the state law claims and in fact questioned whether there remained any federal common law relating to transboundary pollution.   

While considering whether to grant certiorari in these cases, the Supreme Court invited the Solicitor General to file a brief expressing the views of the United States. In her brief, the Solicitor General reversed course from its prior position and now claims that the Circuit Courts were correct in remanding these cases back to state court. The Solicitor General’s brief relied on the “well-pleaded complaint” rule and the fact that any federal common law that might have applied to the claims at issue had been displaced by the Clean Air Act, the preemptory effect of which would not be a basis for federal jurisdiction. 

Following the Supreme Court’s refusal to grant certiorari, energy companies will likely be forced to litigate these climate change lawsuits in state courts in front of state juries. The Solicitor General’s brief claiming the absence of any relevant federal common law will pose challenges to preemption defenses. This will in turn likely lead to a patchwork of inconsistent decisions, resulting in a lack of uniformity and consistency with respect to climate change liability.    

Although this is but a “50,000-foot view,” the Center for Law and Public Policy’s Climate Change and Sustainability Task Force will continue to evaluate and assess climate change litigation developments and provide more detailed insight and analysis in later publications. If you are interested in participating on the task force or otherwise contributing to the scholarship on this issue, please contact task force chair Steven Siros.  

Arie Feltman-Frank is an associate and Steve Siros is a partner in the Chicago office of Jenner & Block LLP.

Pictured, L to R: Feltman-Frank, Siros

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The Center is pleased to announce that several DRI members have recently received appointments to its task forces and working groups.  

Federal Rules Task Force 

Greg Farkas is now a member of the Center’s Federal Rules Task Force.  A partner of Frantz Ward LLP in Cleveland, Ohio, Greg’s practice encompasses a variety of litigation matters, including commercial disputes and the litigation of lender liability, insurance coverage, and consumer fraud claims. He has represented defendants in numerous class actions in state and federal courts. 

The Federal Rules Task Force evaluates issues involving the federal appellate, civil, and evidence rules. It drafts appropriate changes to rules and drafts comments on proposed changes to rules and, through the Legislation and Rules Committee, recommends action on those to the Center Management Council. The Federal Rules Task Force also assists SLCs and SLDOs on issues involving these federal rules and similar state rules or legislation. 

Artificial Intelligence Working Group 

Recent appointments to the Center’s Artificial Intelligence Working Group include Noah Mason and Jin Yoshikawa.

Noah Mason is an associate of Locke Lord LLP in Atlanta, where he represents defendants in business litigation, financial services, insurance, and real estate matters. He has represented Fortune 500 companies, insurance carriers, and privately owned enterprises in state and federal courts. Noah's experience involves allegations covering a wide spectrum of issues, including consumer protection, data security, trade secrets, and information technology. 

Jin Yoshikawa is a member of Butler Snow’s Drug and Device Litigation Practice Group. Practicing from the firm’s Nashville office, he handles matters from nationwide product liability MDLs and medical misadventure actions to personal pro bono matters. He wears many hats, drafting and arguing motions, reviewing medical records and engineering documents, taking depositions, managing deadlines and tasks, and coordinating team members. 

The purpose of the AI Working Group is to conduct a survey of current uses of AI in the legal profession and uses that can be reasonably foreseen. The AI Working Group will also identify potential benefits of AI to the legal practice and what, if any, regulation will be necessary. Finally, the AI Working Group will make policy recommendations to DRI’s Executive Committee. 

Data Privacy and Protection Working Group 

Recent appointments to the Center’s Data Privacy and Protection Working Group include new vice chair Sean Griffin and new members Brent J. Arnold, Colton Driver, Barry S. Herrin, and Richik Sarkar.

Sean C. Griffin is a member of Dykema Gossett PLLC in Washington, D.C. Whether as a business litigator or a leader in data privacy, Sean spots issues and anticipates contingencies to craft effective litigation and cybersecurity strategies. Clients, including government contractors, transportation companies, and law firms, turn to Sean to protect and advance their interests in a wide range of disputes.  

Brent J. Arnold is a partner of Gowling WLG in Toronto, specializing in cybersecurity and commercial litigation. Brent's experience includes cyber breach coaching, cyber risk analysis, class actions defense, Web3 (including cryptocurrency and metaverse) and other technology, software and e-commerce disputes, administrative and insolvency law, shareholders' rights, class actions, employment contracts, and general contractual disputes. 

Colton Driver is an associate of Bass Berry & Sims PLC in Nashville, where he focuses his practice on data privacy compliance and electronic discovery issues. He works with clients to craft and implement proactive privacy programs that allow for appropriate collection, use, and sharing of data in the midst of ever-changing local and international privacy laws. 

Barry S. Herrin, CHPS, FAHIMA, FACHE, is the founder of Herrin Health Law in Atlanta.  His firm helps clients navigate corporate, fraud and abuse, managed care, HIPAA, health care information privacy and security, and related areas. Barry is one of very few attorneys in the United States that is both a Fellow of the American College of Healthcare Executives and a Fellow of the American Health Information Management Association. 

Richik Sarkar is a partner in the Cleveland, Ohio, office of Dinsmore & Shohl LLP.  He is a courtroom advocate, boardroom strategist, and collaborative leader who directs commercial, consumer, and cybersecurity litigation for entities of all sizes. He is a nationally recognized class action litigator and a former chief privacy officer for a $65 million company.  

Chaired by Laura Clark Fey, PLS (IAPP), CIPP/US, of Fey LLC, the Data Privacy and Protection Working Group evaluates issues involving Data Privacy and Protection that affect DRI members and their clients. When appropriate, it drafts appropriate changes to legislation and regulations and prepares comments on proposed changes to these and, through the Public Policy Committee, recommends action on those to the Center Management Council. It also promotes awareness of these issues through articles and presentations to DRI members, SLDOs, and other organizations. 

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Can you sue a business for violations of the Americans with Disabilities Act even if you've never actually patronized it? Federal appellate circuits around the country have answered this question differently. To resolve this circuit split, the United States Supreme Court granted certiorari in the case of Laufer v. Acheson Hotels, LLC, 50 F.4th 259 (1st Cir. 2022). The case involves the question of whether or not a plaintiff has standing under the Americans with Disabilities Act ("ADA") to sue a hotel for failing to provide information regarding its accessible accommodations. The plaintiff – who never planned to stay at the hotel and never visited the property – claimed she had "standing," or the legal ability to file a lawsuit, because she qualified as someone who "tested" whether businesses around the country violated the ADA. 

The DRI Center for Law and Public Policy filed an amicus brief in support of the successful petition for certiorari. The Center will be joining the brief of the Atlantic Legal Foundation at the merits stage.

Background Facts 

Deborah Laufer is a disabled person who lives in Florida. She is dependent upon a wheelchair or cane for independent movement, has limited use of her hands, and has a vision impairment. Defendant, Acheson Hotels, LLC ("Acheson"), operates the Coast Village Inn and Cottages ("Coast Village") on Maine's southern coast. Reservations for Coast Village can be made directly on its website or through various travel sites such as Expedia and Travelocity. Laufer visited Acheson's website and its affiliated third-party websites and found that the website did not list any information about accessible rooms or facilities. 

Laufer brought a claim against Acheson claiming that its website was in violation of the ADA. She claimed that her injury was caused by the frustration and humiliation she experienced in viewing a website without the required information regarding accessible accommodations. The district court granted summary judgment in favor of Acheson finding that Laufer lacked standing to bring the case. On appeal, the First Circuit Court of Appeals reversed, finding that Laufer had standing to bring her lawsuit. The case will now be heard by the United States Supreme Court. 

The Americans with Disabilities Act 

The ADA was enacted to address the fact that "many people with physical or mental disabilities have been precluded from participating in all aspects of society because of discrimination." 42 U.S.C. §12101(a)(1). In an effort to address this problem, the ADA provides that "no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns… or operates a place of public accommodation." 42 U.S.C. § 12182(a). A business' failure to make accommodations for disabled persons "in policies, practices, or procedures, when such modifications are necessary" is liable under the ADA.  

In addition, the ADA delegates authority to the Attorney General to promulgate certain regulations to carry out the provisions of the ADA. One such regulations addresses hotel reservations. Called the "Reservation Rule", this policy provides that "public accommodation operating a place of lodging must with respect to reservations made by any means… identify and describe accessible features in the hotels and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs."28 C.F.R. § 36.302(e). Private individuals may sue for violations of the ADA. 

Standing Requires a Case or Controversy 

Article III of the Unites States Constitution allows federal courts to hear cases, but they must consist of a "case or controversy." A case or controversy is required to establish the standing of the plaintiff. To have establish standing a plaintiff must show: 

• They suffered an injury in fact. An "injury in fact" means the invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical." Amrhein v. eClinical Works, LLC, 954 F.3d 328 (1st Cir. 2020).  

• Injury is "fairly traceable" to the challenged conduct of the Defendant, and 

• It is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). 

The heart of the "standing" inquiry is whether or not Laufer was injured by Acheson's website failure to provide information on disability accessibility accommodations.  

Was Acheson's Failure to Provide Accessibility Information on Its Website Sufficient to Give Laufer Standing? 

Acheson argued that Laufer had no standing because she suffered no injury in fact as she never intended to actually patronize the hotel. Further, Acheson argued that Laufer was a "tester" and opportunist who sought out businesses for ADA violations. Whatever accommodations were or were not offered, Laufer never would have used or needed them anyway. 

While the district court agreed, the appellate court found favor with Laufer's position. It found that Laufer's injury did not need to be tangible, but rather could be intangible, to be determined on a case-by-case basis. Since the opinion will be heavily scrutinized at the Supreme Court, a brief summary of the First Circuit's opinion follows below.  

The First Court found that irrespective of why Laufer perused Acheson's website, Laufer was still "injured" by the lack of accessible information on the site.  In addition, the First Circuit agreed with Laufer that she suffered "frustration and humiliation" when the Acheson's website did not offer accessible information or options. It found favor with Laufer's argument that her feelings of frustration and humiliation were "downstream consequences and adverse effects" of the informational injury she experienced after visiting Acheson's reservation portal. 

Going further, the First Circuit also agreed with Laufer that, despite her "tester status" Laufer could still allege standing, particularly in light of the ADA's "Reservation Rule." The purpose of the Reservation Rule is to require places of lodging to make accessible options readily available to disabled person who may want to make use of their offerings. In other words, "to reasonably permit (disabled persons) to asses independently whether a given hotel meets their accessibility needs." 28 C.F.R. §36.302(e)(1)(ii). Since Laufer was exercising her right under the statute and found Acheson in violation of the law, the First Circuit found that this was sufficient to establish an intangible injury and afford her standing. The fact that she did not intend to book a room did not impact her ability to establish standing because the denial of information to which a plaintiff has a legal right can constitute an injury in fact.  

The First Circuit also agreed with Laufer that she was entitled to injunctive relief based on her "tester" status because even though she had no plans to visit the hotel in question here, she had plans to visit their website again as she operated " a sophisticated system to continue monitoring the non-compliant websites she encounters." Since Laufer intended to visit the site again to test for noncompliance, she could sufficiently argue that she had an imminent future injury.  

Finally, the First Circuit agreed that Laufer's claim was not moot because even though Acheson revised its website to show that the property in Maine had ADA accessible lodging, it did not update its list on third party provider websites.  

The First Circuit is not the only federal appellate circuit where ADA "tester" plaintiffs have been successful. In fact, just recently, a Ninth Circuit panel of judges reversed a lower court’s decision, finding that a California man’s litigation history cannot be used to question his credibility in regards to his ADA lawsuit over accessible parking at a lobster shop. Langer v. Kiser et al., 495 F. Supp.3d 904 (2023).  

Moving Forward 

The Supreme Court of the United States has granted a petition for certiorari in this case meaning that it will review the First Circuit's opinion. The Supreme Court's decision (anticipated at some point in 2024) should provide some national clarity on the issue of whether testers such as Laufer may have standing to bring lawsuits like hers in the future. From a defense viewpoint, decisions like Laufer v. Acheson Hotels dangerously eliminate fundamental constitutional standing requirements which we will continue to combat on behalf of our clients.  

The attorneys at Wood, Smith Henning & Berman are monitoring this case as well as its impact on pending ADA discrimination lawsuits and claims. Please do not hesitate to reach out to a member of our team should you have any questions or concerns regarding this topic. 

Christian Gunneson is a partner in WSHB’s Florida and Connecticut offices where his practice focuses on employment, insurance, and professional liability. He represents employers in labor and employment litigation including discrimination, harassment, wrongful termination, retaliation, wage and hour, trade secret, and non-compete disputes. He also provides counsel to employers in various aspects of the employer-employee relationship including personnel policies and practices, employee discipline and terminations, leave management and accommodations, and wage-and-hour compliance. In connection with this part of his practice, Christian also assists business clients with document formation and risk management.

Sheila Fix focuses her practice on catastrophic injury, employment, construction, professional liability, and toxic tort litigation. Sheila also frequently handles complex actions involving sureties, including claims involving payment and performance bond claims, defaults on construction projects, and mechanic’s lien release bonds. Bringing a powerful combination of experience as a partner at WSHB and a former active-duty Judge Advocate in the U.S. Navy JAG Corps, Sheila has tried over 75 cases, including 20 jury trials. In the construction arena, she has successfully tried cases involving public works projects, residential construction, and landslide and subsidence claims. Sheila also counsels owners, builders and contractors on risk management issues in all phases of the construction process and assists them with drafting of contracts, securing approval of subdivision documents, and complying with right to repair laws.

Submit Your Nominations Now for DRI’s 2023 Professional Achievement and Service Awards

Do you have colleagues who deserve recognition for their professional contributions? DRI's Annual Professional Achievement and Service Awards celebrate and honor outstanding performance by state, local, and national defense organizations, DRI law firms, and individual members, and we are looking for nominees.

These awards aim to recognize individuals for their achievements on behalf of the defense bar and the civil justice system or their involvement in community and public service activities that have a positive effect on society at large. Recognition enhances members’ personal growth and accomplishments, provides us all with role models, and strengthens members’ images in the legal and business communities and with the general public.
Please download a copy of our awards brochure to learn how you can nominate a deserving individual, your organization, and its members. We encourage you to submit an entry for each award below by July 1, 2023.

Winners will be announced at DRI’s 2023 Annual Meeting in San Antonio, TX, on October 25–27. In addition, DRI will recognize award recipients in The Voice and through press releases to national and local media.

Send In Your Declarations for the 2023 DRI Elections

Four National Director seats on the DRI Board of Directors, plus the offices of Second Vice President and Secretary–Treasurer, will be filled at the DRI 2023 Annual Meeting in San Antonio, TX, on October 25–27.

To be considered for one of these positions, a DRI member must first file a Declaration of Candidacy form. For more information, please contact elections@dri.org.

Declarations are due by July 1, 2023, at 5 p.m. CDT.

Join Our Zoom Call | 2023 DRI Elections: What You Need to Know

Please join us on Tuesday, June 13th at 9 a.m. CDT for a 30-minute discussion on the 2023 DRI Elections featuring DRI CEO Dean Martinez and 2023 Nominating Committee Chair Toyja Kelley. They will discuss everything you need to know about declaring your candidacy and close with an informal Q&A session.  

We encourage all members interested in running for office at any point to attend.

Please submit your questions to elections@dri.org by Monday, June 12th at 12:00 p.m. CDT. 

Join Zoom Meeting

Meeting ID: 860 4345 8232
Passcode: 046198

Corporate Counsel Committee 
Morgan Milner, Committee Chair 

The Corporate Counsel Committee ("C3") works to help our members successfully meet the challenges unique to in-house practice. Our members are being asked to do more with less by their respective organizations and have significantly less time and resources to keep abreast of the ever-evolving legal and regulatory landscape. C3 provides a place where corporate attorneys can connect and discuss these new developments in the law as well as issues related to leadership, work-life balance, etc. that cut across our diverse practice areas. Moreover, C3’s leadership is always looking for ways to remove barriers to member engagement with DRI and make all that DRI has to offer – education, informational content, networking opportunities, etc. – more accessible to the C3 membership. 

C3 is excited to be reimagining itself in the post-pandemic world and will shortly begin a strategic planning process to establish strategies, goals, and benchmarks to help guide C3 going forward. Additionally, C3 is pushing to carve out space for corporate counsel at all DRI meetings and seminars. Current and prospective members can expect a renewed focus on corporate-only educational and networking opportunities at DRI events. 

C3 is pleased to serve as a valued partner to the entire DRI community! Does your SLC or affinity group have an idea or a program you think can benefit from a partnership with C3? Let us know! Over the past year, for example, we’ve partnered with the Diversity & Inclusion Committee to launch the Diverse Rainmaker Mentoring Program. This exciting program brought together young diverse attorneys with in-house counsel and a senior-level member of the Diversity Committee to provide the selected young lawyers with practical tools for developing and leveraging relationship-building skills.

Want to get involved or discuss potential SLC projects?

Trucking Law Committee
Terrence Graves, Committee Chair 

The Trucking Law Committee is dedicated to addressing the concerns of the trucking industry. The biggest issue that the trucking industry and therefore our members is facing is the proliferation of nuclear verdicts and settlements that are currently being obtained in jurisdictions all over the country. The Trucking Law Committee (TLC) helps address these verdicts and settlements by providing our members with the education and foundational tools that will allow them to be proactive when representing their clients and evaluating the cases that we handle. Being proactive allows us to gather and preserve all evidence necessary to mount a vigorous defense and it also allows us to determine early on whether a case should be settled or fought tooth and nail.   

The Trucking Law Committee provides outstanding programming whether it is in-person seminars, webinars, or podcasts. I'm really excited to see all the presentations at our upcoming Trucking Litigation Essentials seminar, but if I have to pick one in particular, it would be the presentation on pre-suit discovery. That is a very delicate subject and lawyers and clients have to be careful about what they produce in the spirit of cooperation that can permeate pre-suit interactions among claimants and trucking companies. I think this presentation will set our clients, young lawyers, and more experienced lawyers up for success.   

We will start the planning for our 2024 Trucking Law seminar at our Fly-In, which is scheduled to take place July 20th and 21st in Chicago, IL. Everyone should plan to join us and have input on the format and content of that program. We are also in the midst of planning our TLC activities for the DRI Annual Meeting. I hope that all our members will meet us in San Antonio, for what is sure to be a great time.   

The Trucking Law Committee provides many opportunities for our members. We work hard and we play hard. There's nothing wrong with having a good time while you achieve the goals of the committee and DRI.   

Want to get involved? 

In a case of first impression, Michael Phillips of Hagwood and Tipton secured a dismissal for his long-term client, asserting the Mississippi Back-to-Business Liability Assurance and Health Care Emergency Response Liability Protection Act as a bar to recovery. The act was passed in response to the unprecedented global pandemic and was designed to shield medical providers from liability when providing care and services during the COVID-19 state of emergency. 

Before the court could consider the issue, the parties were ordered to engage in immunity-related discovery and to brief the court on whether the claims asserted were barred. After the parties exchanged written discovery and deposed numerous caregivers, the parties briefed the court and set a hearing for April 10, 2023.

Following the hearing, the court found that all claims asserted, with the exception of those that arose during the first six weeks of the residency period (Jan. 26, 2020 – March 13, 2020), were barred. The court found the defendants were immune from liability from March 14, 2020, the date Governor Reeves declared a state of emergency, until Feb. 2, 2021, the resident’s last day in the facility.

Michael Phillips Defeats Motion for Class Certification

After years of litigation, Michael Phillips of Hagwood and Tipton and his colleague defeated a motion for class certification regarding a North Carolina skilled nursing facility. The plaintiffs sought damages arising out of alleged nursing home understaffing prior to and through the COVID-19 pandemic. Phillips represented the nursing home located in North Carolina. The genesis of the action was a 2020 injunctive relief claim, which was voluntarily dismissed by the plaintiffs in 2021. On the heels of that action, a purported class action was brought in the U.S. District Court for the Middle District of North Carolina, seeking the certification of a class of over 100 residents. The motion was extensively briefed, and, in November 2022, the court held oral arguments. On April 20, 2023, the court issued a Memorandum Opinion and Order resoundingly denying the motion for class certification. 

In short, the court held that the alleged class did not meet the Rule 23(a) commonality and typicality requirements, as well as the Rule 23(b)(3) requirements relating to predominance and manageability. Finally, the court declined to certify the class under Rule 23(c)(4) and ultimately held that the claim was “not readily amenable to class relief.”

Traub Lieberman Attorney Lisa Rolle Wins Motion for Summary Judgment in Favor of Insurer

Traub Lieberman Partner Lisa Rolle and her associate won a motion for summary judgment in favor of a national Insurance Company in a complaint brought in New York Supreme Court, Queens County. The action arises from an alleged loss from a fire at a building located in Queens, NY. The Plaintiffs purchased a homeowner's policy for the property from the Insurance Company, which specified a period of time in which an action may be brought against the Insurance Company following a loss. The Plaintiffs failed to file an action within the specified timeframe, establishing the Defendant Insurance Company’s prima facie entitlement to dismissal of the action. While the Plaintiff attempted to argue that they were entitled to an extended timeframe under New York Executive Orders released in response to the COVID-19 pandemic, the Executive Order did not apply to the limitation period. As a result, the motion to dismiss was granted in favor of the Defendant.

Traub Lieberman Partner Lisa Rolle Wins Motion to Dismiss in Favor of Religious Institution in Alleged Child Victims Act Case

In an action brought before the Supreme Court of the State of New York, New York County, Traub Lieberman Partner Lisa Rolle won motion to dismiss on behalf of a Religious Institution. Plaintiff commended the action against the City of New York and a New York hospital, listing Does 1-10 as persons or entities with responsibility for the Plaintiff’s safety, supervision, and/or placement in foster care. The listed Does were not identified at any point throughout the proceedings. The complaint was later amended to include the Religious Institution, and the amended complaint was served after the expiration of the two-year window to file Child Victims Act cases.

The Religious Institution moved to dismiss the action, asserting that Plaintiff failed to satisfy jurisdictional requirements. Specifically, Plaintiff failed to show that timely efforts were made to identify the correct parties and also failed to establish that the Religious Institution was united in interest with a party in the action. With the failure to meet either requirement, the motion to dismiss was granted in its entirety in favor of the Religious Institution. 

Traub Lieberman Attorney Lisa Rolle Wins Motion to Dismiss in Bronx County Trip and Fall

Traub Lieberman Partner Lisa Rolle and her associate won a motion to dismiss in a trip and fall accident complaint and cross-claim brought before the New York Supreme Court, Bronx County. The underlying accident allegedly occurred on the sidewalk abutting the subject premises, which is owned by the Property Owner and was leased to a Pest Control Company. The Property Owner brought a cross-claim against the Pest Control Company as a result of the initial complaint.

The Pest Control Company submitted into documentary evidence the lease for the property, which states that the Property Owner of the subject premises is responsible for maintaining and repairing the sidewalk. Photos from Google Earth confirm that the sidewalk defect that gave rise to the action was not caused or created by the Pest Control Company. Neither the Plaintiff nor the Property Owner produced sufficient evidence to demonstrate the existence of an issue of fact precluding dismissal. Accordingly, the Pest Control Company’s motion to dismiss was granted and both the complaint and the Property Owner’s cross-claim were dismissed.

Traub Lieberman Attorney Lisa Rolle Defeats Labor Law Claims

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DRI International
June 19-20, 2023 | Zürich, Switzerland
Join us for the first DRI International Seminar in four years to reconnect with members and new contacts in Zürich. The international disputes landscape is becoming more complex, and there are significant changes ahead, particularly for tech companies operating in Europe, as well as the rapid growth of class action regimes globally. We will be joined by lawyers and in-house counsel to discuss the hot topics and current legal developments in cross-border litigation with a focus on class actions, product liability, developments in e-discovery, and the use of legal tech in litigation. We will end with a lively and interactive panel session discussing the future of work in law firms and the seminal topic of preserving well-being in the new world of hybrid working!

2023 Senior Living and Long-Term Care Litigation Seminar
August 16-18, 2023 | Washington, D.C.
Join us in our nation’s capital for the 2023 Senior Living and Long-Term Care Litigation Seminar, taking place on August 16–18 at the Washington Hilton in the heart of the Dupont Circle neighborhood of Washington, D.C. Our annual seminar will include panel counsel meetings, enhanced networking opportunities, and, as always, timely education sessions from leading industry experts on the latest topics impacting the senior living industry. In addition to exceptional speakers, the new seminar schedule offers more time for networking and collaboration, including a new attendee meetup, small group networking opportunities including a tour of the US Supreme Court, the DRI Cares Blessings in a Backpack project, and an on-site lunch and premier networking reception (both included in the registration fee)! Register now to secure your spot for these special events.

Register by July 17, 2023, to receive the early registration rate: $1,195 for DRI members and $1,395 for non-members. If your membership recently lapsed, please renew your membership prior to registering to ensure you receive your discounted member rate.

2023 Strictly Automotive Seminar
August 16-18, 2023 | Washington, D.C.
Join us for a timely seminar focused on current issues affecting those who practice in the automotive space. Stay up to date on emerging technologies, electric vehicles (EV), Environmental, Social, and Governance (ESG), and supply chain developments. Gain perspective from in-house counsel regarding their business and legal concerns. Additionally, attain deeper knowledge from experienced trial counsel and experts about key litigation trends and best practices for defending various types of automotive claims.

Register by July 17, 2023, to receive the early registration rate: $1,195 for DRI members and $1,395 for non-members. If your membership recently lapsed, please renew your membership prior to registering to ensure you receive your discounted member rate.

2023 Fire Science and Litigation Seminar
August 16-18, 2023 | Washington, D.C.
DRI’s Fire Science and Litigation Seminar is returning to Washington, D.C.! The seminar will provide cutting-edge education, including a live burn demonstration, which provides a rare opportunity for participants to go off-site to a facility where experts—with the assistance of the great folks at D.C. Fire and Emergency Medical Services (EMS)—will have multiple live burn stations. After observing actual fire suppressions and inspections, attendees will be walked through what they observed and how to best use this evidence in the courtroom. With a number of other excellent speaker sessions and premier networking events, this is a seminar you won’t want to miss!

Register by July 17, 2023, to receive the early registration rate: $1,195 for DRI members and $1,395 for non-members. If your membership recently lapsed, please renew your membership prior to registering to ensure you receive your discounted member rate.

2023 Talc Litigation Seminar
August 16-18, 2023 | Washington, D.C.
Join us in our nation’s capital for the 2023 DRI Talc Litigation Seminar, taking place on August 16-18 at the Washington Hilton in the beautiful Georgetown neighborhood of Washington, D.C. This seminar will include panel counsel meetings, a Premier Networking Reception, and timely education sessions from industry experts from across the nation. If you are interested in the strategies of plaintiffs’ firms in trying talc cases, the scientific issues of cosmetic talc litigation, and new and evolving challenges to plaintiffs’ experts and their theories, this is a seminar you will not want to miss!

Register by July 17, 2023, to receive the early registration rate: $1,195 for DRI members and $1,395 for non-members. If your membership recently lapsed, please renew your membership prior to registering to ensure you receive your discounted member rate.

2023 DRI Annual Meeting
October 25-27, 2023 |San Antonio, Texas
Don’t miss the flagship event of the year for the civil defense community. Join us in San Antonio and explore new ways to learn, connect, and engage with your DRI community! Make meaningful connections through first-class networking opportunities, expand your expertise in your practice area with cutting-edge education, develop your book of business, and so much more. Save your spot and start planning your trip. We look forward to seeing you in San Antonio this October!

Register by September 25, 2023, to receive the early registration rate: $1,195 for DRI members and $1,395 for non-members. Click here to learn more about pricing.

Addressing ESI Issues with Opposing Counsel and The Court
June 27 | 11 a.m. CDT
This program will cover the skills needed to effectively communicate with opposing parties on issues concerning e-discovery and how best to apprise the Court of anticipated e-discovery issues via a 26(f) report. This program will include covering the issues to be aware of when discussing an ESI protocol, such as ensuring that an ESI protocol is not creating an unreasonable burden for your client while making sure that any protocol leaves the door open for obtaining useful information from the opposing party. After a brief lecture, attendees will be split into small groups led by an experienced attorney in order to review and discuss a mock 26(f) report and sample ESI protocol.

Save $100 by purchasing three webinars as a bundle. Learn more about the bundle.
1. Addressing ESI Issues
2. Winning Discovery Disputes Involving ESI

Tips for Winning Discovery Disputes Involving ESi
July 25 | 11 a.m. CDT
Increasingly, Courts are turning to informal discovery conferences to resolve discovery disputes as a way to avoid the costly and time-consuming motion practice that can arise from motions to compel and corresponding motions for protective orders. In this program, attendees will learn how to prepare to present arguments in this type of conference and tips for effectively presenting their position. After an introductory lecture, attendees will split into small groups, led by experienced attorneys, to analyze sample discovery requests, discuss how to respond and defend against unreasonably broad discovery requests, along with exploring how to approach compelling production of digital information from an uncooperative plaintiff.

Save $150 by purchasing three webinars as a bundle. Learn more about the bundle.
1. Identifying and Preserving Digital Information
2. Addressing ESI Issues
3. Winning Discovery Disputes Involving ESI