The Voice^TM

When I first sat down to write this article, I thought of my favorite quote from one of my favorite female lawyers, First Lady Michelle Obama. In her final White House speech, she famously said “[B]e focused. Be determined. Be hopeful. Be empowered.” This speech was special to me. As a first-year, Black, female lawyer, I hung on her every word. She was one of the first lawyers I’d seen in mainstream media who looked like me. So, easily, I could relate to her as I stuck my head in books and tried to become the best lawyer possible. This experience made me realize that many other women in the legal profession also looked for examples to follow as they paved the path for generations of female lawyers to come. I imagine the feeling is similar in other fields, too. Take the little girl who meets her first female dentist and realizes she can be a dentist too. Or take the man who realizes that fashion design is not just for women. The power that comes from the examples before us is just as worthy of celebration as the wins we have in the courtroom. So, in honor of this month, I thought I’d share the stories of some real (and fictional) women in the law while highlighting the stories of some women in DRI.  

1. Be Focused.

There are few women in this country with jobs as demanding as that of the Vice President of the United States, and Kamala Harris, the first female Vice President, is the definition of “focus.” Vice President Harris graduated from law school in 1989. From years as a district attorney to defending the State of California as Attorney General from 2011 to 2017, Vice President Harris had to be focused if she were to one day work in the White House. As an Asian American and African American woman, she did not have many people who looked like her to emulate. Famously, as she accepted her election as Vice President in 2020, she demonstrated her focus on laying a path for other women to follow by saying “I may be the first woman in this office, I won’t be the last.” The ability to see ahead to successes by other women seeking to serve their country like she has, shows a focus on the future that can only be admired. 

DRI member Catherine Ava Leatherwood similarly demonstrates foresight in her daily practice. She says: 

And Catherine has proved this more than once over her years in DRI. Catherine is the Immediate Past Chair of the Young Lawyers Committee, and she also serves as a Steering Committee member of the DRI Products Liability Committee. Her focus in those roles led her to her recent appointment to the DRI Board of Directors as a National Director. In just 10 short years of practice, she’s risen as a star in South Carolina and is a member at Rogers Townsend LLC. It’s hard to imagine one achieving so much without a bit of focus on their goals.  

2. Be Determined.

Elle Woods is possibly the most iconic fictional lawyer of all time. Her bubbly personality and style made others often underestimate her in the 2001 movie Legally Blonde. Elle was a typical sorority president in college with a degree in fashion and an obsessive love for the color pink. But when her boyfriend Warner dumped her in anticipation of attending Harvard Law School and finding a “Jackie” as opposed to Elle’s “Marilyn,” Elle plotted to become a serious law student. And let me tell you, she was determined to get into Harvard Law. She skipped Greek week to study for the LSAT and produced a convincing video admissions essay. And even though she had a 4.0 grade point average, a nearly perfect LSAT score, and was admitted into Harvard, no one believed she belonged. In school, she dedicated herself to her studies, and even earned a coveted internship, but was still ignored when she offered ideas about defense strategy for a case she was assigned to. Still, Elle never gave up. In fact, the moment she attempted to stop trying, her Civil Procedure Professor reminded her that was not a quitter. Elle won the love of her client (a fellow sorority sister), was hired to lead the defense team instead of her overbearing Criminal Professor and used her unique skillset to earn an acquittal for her client. Sure, the story is very Hollywood… but it is also inspiring. The determination required to overcome the misconceptions of others is a trait many women in the legal profession must hold onto every day. 

“In this profession, you will hear ‘no’ much more often than you will hear ‘yes.’ Embrace the ‘no.’  Do not let the ‘no’ stop you. Always remember who you are, what you want and what you are capable of. Use ‘no’ to empower to you stay on your path and prove them wrong.  Be determined for yourself. Nobody else can be determined for you,” says DRI member Christina Gonzales. Christina is a partner in the Philadelphia office of Goldberg Segalla LLP. She concentrates her practice on environmental, toxic tort, and mass tort litigation matters. She counsels and defends clients in all stages of litigation, from inception through trial. In DRI, she serves on steering committee for the Diversity and Inclusion Committee. Outside of work, she is a Founding Board Member of the Atlantic Center for Capital Representation. It is hard to believe she could do so much without being determined. 

3. Be Hopeful.

The Oxford English Dictionary defines the word hope as “a feeling of expectation and desire for a certain thing to happen.” Expectation and desire are at the heart of the story behind Ketanji Brown Jackson’s appointment to the United States Supreme Court. In 1996, Justice Jackson graduated from Harvard Law School. From federal clerkships to private practice, she worked tirelessly before being appointed as a District Court Judge for the District of Columbia. She then became a Judge on the D.C. Court of Appeals in 2021. As if she hadn’t accomplished plenty in her 25 years of practice, she then became the first African American woman to serve on the United States Supreme Court in 2022. On the day her nomination to the Court was confirmed, she said:  

Her hopefulness is admirable, because if an institution as old as the Supreme Court can change, the future for women in the profession is bright. 

“Over the years, I have seen more diverse female attorneys work towards and obtain positions as judges and in house corporate counsel. As women and diverse attorneys gain roles as decision makers, I am hopeful that the practice of law will continue to diversify and provide opportunities for women and diverse attorneys to continue in the legal profession” says DRI member Melissa Lin. Melissa is a partner at Righi Fitch Law Group and has earned the AV Preeminent Rating. Her practice includes insurance coverage and the representation of individuals, businesses, contractors, and municipalities in tort and contract litigation, primarily in the areas of general liability, personal injury, employment, construction defect, and product liability litigation. A partner at Right Fitch Law Group’s Arizona office, Melissa is also very active in DRI. 

4. Be Empowered.

If you’ve ever seen the shows The Good Wife and The Good Fight, you know there are few female lawyers with as much power and poise a Diane Lockhart. A senior partner at her law firm Stern, Lockhart & Gardner, Diane is a champion of women's causes who speaks fluent French. She never hesitates to tell people when she disagrees with them, and over seven seasons on The Good Wife, she is constantly torn between her duties mentoring younger lawyers, her commitment to her clients, and her often neglected love life. In the first episode of the show’s spinoff, The Good Fight, Diane loses all of her money in a Ponzi scheme and is forced out of her firm. First Diane plans on retiring and moving to South France. Just as she is about to make a down payment on a house in France, all her money is lost in a Ponzi scheme. In order to avoid complete bankruptcy, she realizes she must stay in the states and continue working. When she returns to her firm, however, they refuse to let her back in, and no other firm will hire her because of her close association with the family who engineered the Ponzi scheme. So, Diane falls on her sword, goes to a friend and joins a firm full of lawyers who look nothing like her. That’s right – in a predominantly African American Chicago law firm, Diane is the minority. This doesn’t stop her, though. She embraces her differences and realizes that what really matters is being on the right side of history and representing clients who have positive influence in the community. She ultimately shakes all the shame of losing her millions and buys in as a named partner at her new firm. Diane’s story, while fictional, is the definition of empowerment. Even when the chips were down, she continued to fight and succeed.  

Vanessa Offutt’s story of empowerment is even more inspiring. As a member of the DRI Young Lawyers Steering Committee, Vanessa has served as the Chair of both the Women in the Law and the Diversity and Inclusion subcommittees. Vanessa practices primarily in the area of product liability, focusing on pharmaceuticals and medical devices as well as environmental and toxic tort litigation. She represents clients facing challenging litigation in state and federal court, including complex consolidated dockets and multidistrict litigation. A military veteran-turned-lawyer, Vanessa continues to rise as a star in DLA Piper’s Miami office. Vanessa says “As an attorney, I have been empowered by the ability to help others in my community. Specifically, I have been able to help women, through the law, find their voice in family law matters. I have also been able to help black and brown youth understand their rights with authority, and the limitless options for their future.” 

This March, remember all the phenomenal women in your life and those who have shaped it by contributions made to society in the past. Here’s to another year of strength and representation for women in the legal profession! 

Shalyn Smith McKitt is an Associate in Vedder Price’s Los Angeles office and a member of the firm’s Health Care group. Ms. McKitt’s practice is focused on health care transactions and regulatory matters surrounding mergers and acquisitions, corporate restructurings and joint ventures for health care providers, insurers, providers and institutions. She is a member of the Diversity and Inclusion Committee's Women of Color Subcommittee.

For Women’s History Month, members of DRI’s Young Lawyers Women in the Law (“WITL”) subcommittee share life and career advice they have received or developed through experience. As part of a sisterhood of female attorney trailblazers and in celebration of their history, WITL is providing this advice to others to continue growing and progressing in the law. 

Marketing and Business Development:

Marketing and business development are skills that are not always gained in law school. Often, the initial years of practice are the first-time young lawyers are exposed to the necessity of marketing their skills and specialties in order to connect with potential clients and the legal community at large. 

1. Think of marketing as something you get to do, and not something you "have" to do. It can be difficult at first, but once you get past the mindset that marketing yourself is memorizing elevator pitches and throwing around your business cards, you can create meaningful connections with your peers and potential clients that can lead to friendships. This eases the pressure significantly.

2. Use social media to your advantage. Injecting a little bit more of the “personal” into professional than what was standard in years past may set you apart and humanize an intimidating practice and profession – for clients and for lawyers!

3. Be yourself. While it is important to maintain professionalism when putting yourself out there on social media and when networking in-person, lawyers are people too. The human element of who you are is important in developing and maintaining meaningful connections that lead to business and long-term successful relationships with clients and the legal community at large.

4. Understand that just like personal relationships, building professional relationships take time. It often takes several “touches” or contacts in order to make a connection that leads to work for you or your law firm. Don’t be embarrassed or discouraged when you get a “no” or “maybe later.” While you don’t want to pester potential clients, staying on the radar is important and can lead to business down the line as long if you do so in a professional and respectful manner.

5. Be curious. Talk with other lawyers you trust about what’s worked for them and see what you might be able to add to your toolbox for marketing yourself.

6. Remember that you’re not alone. Everyone in the room is there for the same reason – to network! It may sound obvious, but it is important. The goal in networking is to meet new people and make new acquaintances that could potentially become lifelong relationships, or at least in the shorter run, may become a friend and a referral. This means that we’re all in the same boat, and so you can give yourself a break. Putting on your networking face, genuine as you are, takes effort and can be exhausting. Even for those people who appear to be “naturals,” networking takes effort.

7. Don’t allow yourself to feel trapped at a table or in a particular group. Occasionally you may run across the group of people who all seem to know each other, and it can be harder to break in and feel included. But you are there to network, and it is perfectly acceptable to spend a few minutes at the table before politely excusing yourself to “meet the room.” That is what you, and most other people, came to do. There is no need to feel guilty or as if your actions are rude.

8. A little bit of pre-work can go a long way. Coming to a networking event armed with a few fun facts about the city you are visiting (in the case of a conference, for example) makes for an easy and engaging conversation starter that can help get you out of the rut of the same questions over and over – e.g., where are you from, what type of law do you practice? The same goes for fun facts about yourself. Other people in your networking session want to remember you, and many people make an effort to remember one thing about you – give them something easy and interesting to remember you by. If it’s football season, I have fun mentioning that I’m the hardball manager of my fantasy football league. Or if it’s summertime, I like to ask people about their favorite vacation spot – I love to drive down to Mexico for the beach and tacos!

9. In case you aren’t a drinker, or you just don’t want to start out the evening three drinks under, swap out your cocktail for seltzer with lime in a rocks glass. It looks like a cocktail, but you can chug it if you want an easy excuse to go back to the bar and change up tables!

“Best Advice I’ve Ever Gotten” 

In addition to marketing-specific advice, young lawyers are often given one (or more) pieces of advice from seasoned practitioners that sticks with them throughout their career. The following bullet points include some of those golden nuggets the Women in the Law committee members have developed through their experience or received from others over their time in practice:

1. Pick up the phone and call opposing counsel. Establishing a rapport will almost always help move the file along and catch people off guard in a good way.

2. Be your biggest cheerleader. It is very easy to fall into the “I’m not good enough” mindset, especially in competitive environments where your performance is being measured against others. Even though it may not always feel like it, you are worthy and have important things to contribute, whether this is in your work or personal life. While others may have opinions, these do not define your value as a person.

3. Own your mistakes. The fear of failure or being seen as incompetent can often lead to hiding mistakes that could be easily corrected or mitigated. Respect is earned when you are able to own your mistakes and develop solutions to any problems they may cause. 

4. A little bit of bravery can go a long way.  When you first start practicing, all the responsibility and challenges can be intimidating.  If you can just be brave for small portions of time, you will see yourself come out the other side of the challenge and will continually build upon that momentum to increase your confidence. 

5. The old adage of “eating an elephant one bite at a time” they teach you in law school rings true in practice.  Subscribe to this philosophy to repeatedly overcome adversity or arduous tasks.

6. Resiliency is key in this profession.  Don’t let a bad day define you – allow a short time to reflect and keep moving.    

Do you want to build your book of business and hone your networking skills while learning valuable CLE? Check out DRI's upcoming seminars!

The DRI Center for Law and Public Policy—the public policy “think tank” and advocacy voice of DRI—has filed an amicus brief in the U.S. Supreme Court supporting the petitioner in Dupree v. Younger, No. 22-210.

The case presents an appellate-preservation question of particular importance to civil defense lawyers: when a party raises purely legal issues in a motion for summary judgment that is denied, must the party reassert the same arguments in mid- and post-trial motions for judgment as a matter of law under Federal Rule of Civil Procedure 50 to preserve them for appellate review?

A majority of circuits have held that the answer is no, reasoning that Rule 50 motions exist to focus on the sufficiency of the evidence at trial, not legal issues unaffected by the trial evidence. Four circuits, however, have reached the opposite conclusion. In those circuits, a party must reassert a purely legal summary judgment argument in Rule 50 motions to preserve it for appellate review.

The Center’s brief contends that the Supreme Court should adopt the majority rule and hold that a party need not renew in motions for judgment as a matter of law purely legal arguments capable of resolution with reference only to undisputed or no facts. It focuses on the minority rule’s pernicious practical implications. 

Most district courts have adopted local rules limiting briefs supporting Rule 50 motions to 25 pages or less. In those circuits that have adopted the minority rule, parties who lost at summary judgment are left with an unenviable choice: Do they focus their Rule 50 briefing on sufficiency-of-the-evidence issues that could actually affect the trial’s outcome? Or do they waste pages and dilute their sufficiency arguments by asking the district court to reconsider its holding on a purely legal issue, even though the trial evidence could not have affected that holding’s validity?

The Center’s brief also explains that one suggested fix—one or two sentences in Rule 50 motions incorporating by reference summary judgment arguments—is in reality no solution at all. No stakeholder benefits from raising issues in a perfunctory manner; courts typically deem those issues forfeited. If all it takes to renew a summary judgment issue is a sentence or two in later briefing, then there is no rational reason to impose the renewal requirement in the first place. The Federal Rules of Civil Procedure were designed to eliminate such technical traps for the unwary.

The Center’s brief was authored by Matthew T. Nelson, Charles R. Quigg, and Katherine G. Boothroyd of Warner Norcross + Judd LLP in Grand Rapids, Michigan. Mr. Nelson is the chair of The Center for Law and Public Policy’s Amicus Committee.

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Community service has long been a hallmark of DRI and its members. And on behalf of the generous members of DRI, the DRI Foundation is committed to giving back to DRI members and to communities and people in need. The Foundation works toward this goal by fostering initiatives that make a difference. The Foundation is demonstrating its commitment to those in need and to the legal profession by awarding the 2023 DRI Law Student Diversity Scholarships to three deserving law students.

The topic of diversity in the legal profession has been bantered about, mulled over, and debated for decades. And while most law firms still lack the diversity necessary to reflect the diversity of their clients’ in-house legal departments or of society as a whole, the Foundation is taking action to help create a more diverse legal profession and to build a pipeline of diverse legal talent. Each year the Foundation awards scholarships to three law students from traditionally underrepresented groups, including:  African American/Black; Hispanic/Latino, Asian American/Pacific Islander; Native American/Indigenous People; LGBTQ+; Multiracial; and Women. Applicants are judged on demonstrated academic excellence, service to the profession, service to the community, and service to the cause of diversity. One scholarship in the amount of $10,000 and two scholarships in the amount of $5,000 will be awarded to three deserving student at the DRI Diversity for Success Seminar in June 14-16, 2023, in Charlotte, North Carolina. 

Last year’s scholarship recipients, from California, Michigan, and Minnesota, truly embody the qualities of service the Foundation is looking to promote. Examples of the service of the 2022 recipients include: serving as a certified student attorney to aid noncitizens with immigration issues; working with organizations to ensure humane treatment of incarcerated people; advocating for resources to remove barriers for law students who have been previously incarcerated; advocating for racial justice; and volunteering with organizations offering legal services to the undocumented community. They also serve as leaders in law school affinity groups, planning cultural events and development opportunities and promoting inclusion of those from marginalized communities. In addition, last year’s winners demonstrated their commitment to service while also maintaining a high level of academic achievement. 

Applications for the three 2023 scholarships are due by March 31. Details about the application requirements can be found at the Foundation tab on the DRI website. If you know of qualified candidates or if you have a relationship with a law school, please pass along the application information. More candidates will help to ensure the continued exceptionalism of the scholarship recipients. Finally, if you are interested in supporting the work of The Foundation and the DRI Diversity Scholarship program specifically, donations can be made on the DRI website. Information on the scholarships can be found here.

Gary L. Howard is a Partner at Bradley Arant Boult Cummings LLP. He currently serves as Vice Chair of the DRI Diversity & Inclusion Committee and as a DRI Foundation Board Member.

State and local defense organizations (SLDOs) facing potential legislation or rules likely to impact their members can seek support from a new task force just created by The DRI Center for Law and Public Policy. 

In the past year, The Center, at the request of DANY, offered comments that led to a veto in New York of changes to its wrongful death statute; submitted comments supporting positions taken by DTCWV on proposed changes to the West Virginia civil rules; and assisted ADC with a search for legislation in other states similar to a proposed bill in California to outlaw agreements to limit disclosure of discovery material about products posing danger to health or safety. 

The Center’s State Legislation and Rules Task Force will provide similar support to SLDOs in the following ways:

1. By assisting, upon request, SLDOs interested in evaluating, supporting, or opposing potential legislation or rules affecting their members and clients through

2. By supporting SLDOs interested in promoting legislation or rules adopted in other jurisdictions, such as the likely changes occurring later this year to FRE 702.

Chaired by Brooks Magratten of Pierce Atwood in Providence, Rhode Island, the task force is currently composed of the following DRI members/SLDO leaders:

Colorado
Brandon Hull
Overturf McGath Hull

Maryland
John Sly
Waranch & Brown LLC

New Jersey 
Mike Malia
Peri & Stewart LLC

New York 
Steve Dyki
Westguard Insurance Co

Claire Rush
Barry McTiernan & Moore

Oklahoma
Kari A. Hawthorne
Johnson Hanan Vosler Hawthorne & Snider

Pennsylvania
Jason Banonis
Marshall Dennehy

Texas
Slater Elza
Underwood Law Firm

West Virginia
Mychal Schultz
Babst Calland

DRI members interested in state legislative or rules issues are encouraged to contact Jay Ludlam, The Center’s Director (jludlam@dri.org; 312.698.6210). Also, if particular issues interest you, please share that with him. He will share the information from members with the task force chair. 
 
The task force hopes to call upon interested members to assist The Center’s support of SLDO efforts on state legislative and rule issues.  

Danielle M. Waltz, a member of Jackson Kelly’s Litigation and Government Relations practice groups, was recently appointed as vice chair of The Center for Law and Public Policy’s Third-Party Litigation Task Force. Danielle is a past chair of the DRI Construction Law Committee and a former member of the Philanthropic Activities and Membership Committees. She served as chair of the 2018 DRI Annual Meeting.

Joining Danielle is new task force member Pat Eckler, a partner of Freeman Mathis & Gary in Chicago. Pat focuses his practice on defending lawyers, accountants, insurance brokers, and other professionals in a variety of civil disputes in state and federal courts across Illinois and Indiana.

The Third-Party Litigation Task Force’s role is to study on an ongoing basis the impact of TPLF on the civil justice system.

Irwin Fritchie partner Carlos Benach has been appointed to serve on The Center’s MDL Working Group.  From his firm’s New Orleans office, Carlos works with various product manufacturers, including major pharmaceutical, medical device, and industrial clients on individual and mass-tort actions. He has held numerous leadership positions within the DRI Product Liability, Drug and Medical Device, and Diversity & Inclusion Committees.

The MDL Working Group has been tasked with reviewing and advising The Center’s Management Council on multidistrict litigation rule proposals.

Pictured, R to L: Waltz, Eckler, Benach

One aspect of construction defect and product defect litigation often overlooked is the chemistry of various building materials involved in an observed failure. As building materials have become more highly engineered to meet market demands, environmental regulations, and safety standards, the materials chemistry involved in their manufacturing has become increasingly complex. Even identifying the substances used to make a given building material is a daunting task. Exact compositions are well-guarded trade secrets. Safety data sheets (SDS) only provide information on hazardous components, and concentrations are typically reported in ranges to protect the secret recipe. This is why it is always important to involve your friendly neighborhood chemist in your construction defect and product defect disputes. 

Examples of building materials affected by their chemistry that have been encountered in various types of litigation and insurance disputes: 

· Spray polyurethane foam (SPF) insulation 
· Drywall 
· Dual pane windows 
· Window sealants, caulks, and flashing 
· Roofing components such as shingles and membranes 
· Plastic pipe/fittings such as PVC or PEX 
· Concrete and stucco 
· Flex-hoses for water and gas 
· Brass fittings 
· Appliances 
· Engineered flooring and carpets 
· Paints and other coatings 
· Vinyl siding and decking 
· Laminate cabinets and wood 

Chemistry consultants rely on state-of-the-art analytical equipment that helps determine various properties of the building material of interest. Some analytical methods used are portable and can be used in the field. Others are laboratory-based. Which analytical method is best to determine the chemical composition of a material, for example, is different depending on crucial properties of the ingredients such as volatility or solubility in water or other solvents. Oftentimes, multiple different methods are needed for the different types of ingredients. The ‘CSI Effect,’ the underestimating of the complexity and time involved in chemical analysis due to how it is depicted in TV shows, requires managing the expectations of clients and the understanding of juries. 

Another important skill a chemist can contribute to a failure investigation is in the interpretation of chemical analysis data. Many modern chemical analysis software includes a library of standards that can be matched to unknown sample data with an algorithm that helps identify the unknown substance. This is used extensively in the widely encountered and powerful techniques Fourier transform infrared spectroscopy (FTIR) and gas chromatography with mass spectrometry (GC-MS). Library-matching software is incredibly helpful but can be misleading to the untrained eye. In one case involving the failure of dual pane window seals, sometimes referred to as insulating glass units or IGUs, a component of the rubber seal was implicated as an impurity that caused the failure. In this instance, the matching 
software used to identify components was interpreted incorrectly. Upon further analysis of the data by a chemist, the suspected contaminant was found to be a normal component of the rubber. 

Other instances chemists have been particularly helpful have relied on creativity and researching skills learned experimenting in the lab while in school. Some of these even can involve the use of 1800s technology rather than the advanced chemical analysis equipment and software described above. In the numerous disputes involving certain drywall imported from China in the mid-2000s, the nature of the contaminant causing the release of sulfide gases and resultant irritation and corrosion was not well understood. Ultimately, it was determined that small amounts of relatively difficult to detect inorganic impurities difficult to detect in the gypsum core caused the issue. But before this was identified, chemists developed a test to recreate the issue with a small piece of suspected drywall, some water, a piece of copper tubing, an oven, and a Mason jar (the 1800s technology). When the drywall was sealed in the Mason jar with a little water and the copper tube, it was determined that defective drywall would turn the copper tube black after a few days in an oven at 175°F. This accelerated lab test could identify defective drywall with inexpensive supplies available at nearly any hardware store. 

Whether a state-of-the-art chemical analysis or creative use of older technology are needed, chemists can provide valuable ideas and insight. 

ESi was proud to be a Premier Sponsor of DRI's 2023 Product Liability Seminar; learn more here.

Life, Health and Disability Committee
Michelle Thurber Czapski, Chair

The Life, Health and Disability Committee addresses a broad spectrum of issues, including claims, underwriting, regulatory and compliance matters affecting individually issued and ERISA governed insurance products. There are some big issues that we are always dealing with, like staying on top of developments in ERISA jurisprudence as the plaintiffs’ bar is perpetually trying to eat away at the protections it offers. Luckily, we have the top experts in our field, most notably, Mark Schmidtke, to keep us in the know. Other big issues include disability claims that are related to COVID-19, such as long-haul symptoms and other illnesses that are related to the pandemic, as well as impact to the industry from the Dobbs decision and state and local reaction to it. We are excited to have speakers on both of these topics on tap for our seminar in New Orleans as well.

I couldn’t be more excited about our NOLA seminar, which is fast approaching on April 26 – 28th. I’m most excited about the opportunity to mix and mingle with the best in the business, many of whom are dear friends of mine.  But a close second is the venue, to be honest! Our committee had an absolute blast in NOLA at the 2019 Annual Meeting and are looking forward to many fun networking activities in a city with so much to offer. We are even having our Networking Event on a riverboat—a first for me.  

Involvement in the LHD Committee is so rewarding, in so many ways. Professionally, you learn a lot—the folks who write, speak, participate in meetings, are all in the top tier of life, health, disability and ERISA litigators in the country. There is no way to not get better at your craft when you spend time around this crew. Business-wise, we refer work to each other all the time. We are a far-flung bunch, and we often get requests for lawyers in X-jurisdiction from partners or clients. Guess whose names I give out? That’s right—my LHD friends.  

We have declared 2023 as the “LHD Year of Engagement,” so we are looking to actively involve as many people as possible in Committee leadership. We are taking our publishing, posting, outreach and marketing up a notch. There is room for everyone, so current and prospective members need only decide what most interests them, and they are welcome to join in the activity.

Raise your hand in any way that is most comfortable. An email to me at mczapski@bodmanlaw.com, or Vice Chair Sarah Delaney at sdelaney@goldbergsegalla.com, or any of our subcommittee or SLG chairs would be fine. There is no wrong way to get involved, and there is space for new members in every corner of the LHD.

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Toxic Torts and Environmental Law
Jennifer L. Dlugosz, Chair

Toxic tort and environmental tort claims continue to be among the most challenging for the defense practitioner due to the evolution of new strategies and theories from the plaintiffs’ bar. In an effort to help the defense law bar meet these challenges, the Toxic Torts and Environmental Law Committee provides its members with the most current and reliable scientific, medical and legal information available. 

The Committee’s annual seminar is one of the most comprehensive and high-quality seminars available for the many lawyers across the country who defend toxic tort and environmental claims. The seminar focuses on both basic and cutting-edge scientific, medical, forensic and legal issues involved in toxic tort and environmental law claims. 

We are particularly excited about cutting-edge sessions at our upcoming seminar on April 26-28 at the Hilton New Orleans Riverside in New Orleans, LA. We will have a panel of experienced lawyers and experts in talc litigation explore the theories and future of this litigation. We also have a program on ethylene oxide and hear from scientific, regulatory, and litigation experts on the rise in personal injury and medical monitoring suits and the implications in significant toxic tort litigations. Another panel will explore the separation of powers questions underlying the legitimacy of the administrative state through West Virginia v. EPA and other opinions of the last couple of decades. Take a look at our seminar agenda for more information on these and other timely sessions.

The Toxic Torts and Environmental Law Committee has engaged members who share information, refer business and genuinely enjoy working together. Join us!

Reach out to Committee Chair Jen Dlugosz at jen.dlugosz@huschblackwell.com or Committee Vice Chair Roy Prather at rprather@bdlaw.com. The committee is looking for new people to add to its steering committee and will always find a way for you to get involved. 

Jury Finds for Insurer in Case of First Impression Involving Death of Policyholder

Hassett | Donnelly successfully obtained a defense verdict in a case of first impression in a two-week trial in Middlesex Superior Court. Plaintiff counsel’s post-trial Motion to Amend Judgment was denied and Defendant’s Motion to Dismiss Appeal was allowed on April 15, 2022.

Case of First Impression

The decedent’s family asserted a new cause of action (wrongful death) against an insurance company in connection with an elderly policyholder’s death during the handling of a property damage claim. In particular, plaintiff counsel argued that the actions of the defendant claims adjuster and the decedent’s living “deadline to deadline” outside of her home during repairs caused her to suffer from Takotsubo’s cardiomyopathy a/k/a “broken heart syndrome” and resulted in her death. During trial both sides offered expert testimony regarding plaintiff’s medical history and potential triggers for broken heart syndrome, as well as testimony regarding proper insurance claims handling and bad faith.

Plaintiff alleged in the Complaint that the insurer had committed bad faith and failed to timely settle a property damage claim made by the elderly decedent following a plumbing leak. Plaintiff’s counsel alleged that the insurance claims adjuster refused to pay a fair amount for repair and renovations to the home and that the delay in paying the claim resulted in the decedent having to stay in temporary housing for an extended period of time. Plaintiff’s counsel further alleged that while living in an extended stay hotel the decedent was allegedly told by hotel staff that she would need to leave the premises as the insurer had failed to extend her Alternate Living Expenses (ALEs) and, further, that hotel staff left a note or notes on decedent’s door advising the decedent she would need to leave. Plaintiff’s counsel further alleged that the claims adjuster sent a letter to the decedent saying that the insurer would not continue to pay the ALEs if decedent did not agree to settle the property damage claim. Moreover, plaintiff counsel alleged that the delay in settling the claim and having to live “deadline to deadline” caused the plaintiff to suffer emotional distress and that this stress resulted in her collapsing at the hotel. After being brought to a nearby hospital for treatment, the plaintiff died. Diagnostic testing revealed signs that the plaintiff may have suffered from Takotsubo’s cardiomyopathy.

The defendant insurer represented by Attorneys Scott Ober and David Hassett of Hassett | Donnelly argued that the insurer did not act in bad faith, denied that the events occurred as alleged by plaintiff’s counsel and denied that the insurer ever sent any letter threatening to discontinue Alternate Living Expenses at any time.

Further, defense counsel argued that the plaintiff died of heart failure secondary to pneumonia as reflected in the coroner’s death certificate. Through defendant’s medical experts, the defense further argued that the medical evidence showed that any “broken heart syndrome” was more likely than not caused by a physical trigger, such as pneumonia or COPD, rather than any emotional trigger. Moreover, defense counsel argued that any delay in resolving the plaintiff’s property damage claim was caused by the construction contractor who was also the decedent’s son. During the claims handling process, the contractor had insisted that high-end kitchen cabinets be installed rather than comparable cabinets and would not start making repairs to the home until the insurance company paid the demanded figure.

Following the 8-day trial, the jury returned with a defense verdict for the defendant insurer, finding that the insurer was not negligent nor responsible for the death of the elderly plaintiff and did not commit bad faith. The jury returned with a finding of no negligence against the insurance company and judgment entered for the defendant.

Following trial, plaintiff’s counsel submitted a Motion to Alter and Amend the Judgment. After oral arguments and review of all rulings, motions, trial testimony, jury instructions, and the plaintiff’s own Special Verdict Slip which was adopted by the court during trial, Judge Camille Sarrouf denied plaintiff’s motion to amend judgment on the grounds that there was no error in the judgment. (See Judge Sarrouf’s decision here.) Further, Judge Sarrouf opined that the plaintiff failed during the trial to establish any causal connection between the alleged injury by the decedent and the defendant’s alleged unfair or deceptive acts or practice and, as such, overturning, amending and/or altering the judgment was not warranted.

The “Mailbox Rule” Does Not Apply to Notices of Appeal

Finally, plaintiff’s counsel filed a Notice of Appeal with the court, electing to send same by mail only. The court received and docketed the appeal after the deadline had passed. Defense counsel at Hassett | Donnelly filed a Motion to Dismiss on grounds that appeal was untimely. Plaintiff counsel opposed, arguing that plaintiff had an additional three (3) days for mailing. In reply, defense counsel argued that the mailbox rule does not apply to notices of appeal and that plaintiff’s mistake did not equal any excusable neglect. On April 15, 2022, Judge Joshua Wall granted Defendant’s Motion to Dismiss the Appeal. (See Judge Wall’s decision here.)

Pictured, L to R: Ober, Hassett

Traub Lieberman Partner Lisa Rolle Obtains Motion to Dismiss in Favor of Dave & Buster’s

In a case brought before New York State Supreme Court, County of Queens, Traub Lieberman Partner Lisa Rolle obtained a motion to dismiss in favor of Defendants Dave & Buster’s of New York, Inc., Dave & Buster’s Inc., and Dave & Buster’s Management Corporation, Inc. (collectively “Defendants”). In the case, the Plaintiff alleged food poisoning from food consumed at an event on Defendants’ premises on September 8, 2019. In their motion to dismiss, the Defendants presented testimony of both parties and the report of an independent medical examiner. In opposing the motion, Plaintiff showed an incident detail report to the Defendants dated September 13, 2019, and a medical report for Plaintiff’s presentation to the hospital on September 16, 2019.

The Court found that the Defendants met their burden to show that there is no issue of fact regarding Plaintiff failure to show a causal connection to his illness on September 16, 2019, and the food consumed at the Defendant’s premises eight days prior. The Plaintiff failed to submit further evidence refuting the report of the medical examiner, and the case was dismissed.

Traub Lieberman Attorneys Lisa Rolle Wins Summary Judgment in Favor of Property Owner

Traub Lieberman Attorney Lisa Rolle obtained summary judgment in favor of Defendant, the owner of a premises located in Bronx, New York, in a personal injury case brought before the Supreme Court of the State of New York, Bronx County. The Plaintiff alleged that while leaving the Defendant’s premises, she unexpectedly fell. It is undisputed that the Plaintiff does not know why she fell or identify any defect that may have caused her fall. The Defendant’s witness testified that the route taken by the Plaintiff was free of any defect prior to and on the date of the incident. The witness further testified that the site was also subject to routine inspection leading up to the incident, in which no tripping hazards were observed.

Based on the witness testimony, the Defendant established prima facie entitlement to summary judgment by pointing to the Plaintiff’s admission that she did not know the cause of her fall. The Defendant’s motion for summary judgment was therefore granted.

Connor Crouse v. Coke Florida, et al.

After only 10 minutes of deliberations, a Polk County jury entered a defense verdict for Coca-Cola Beverages Florida, LLC (“Coke Florida”) and its driver. Plaintiff claimed an accident caused him injuries, asking the jury to award over $2.2 million in damages.The trial team of DRI member Rob Blank, attorneys Damien Orato, Aly Buhler and paralegal Susan McClugage convinced the jury the accident was not the legal cause of Plaintiff’s injuries. Defendants have moved for their attorneys’ fees based on Plaintiff’s rejection of their proposal for settlement. Plaintiff was represented by Karl Pansler and Chase Pansler of the Pansler Law Firm in Lakeland, Florida. Judge Larry Helms presided.

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.

Chartwell Law is pleased to announce the addition of the following staff: 

M. Garner Berry, of Ridgeland, Mississippi, DRI member since 2005, is a transportation industry specialist whose practice covers various areas, including catastrophic loss, rapid response, cargo claims, and insurance coverage.  

Matt Hefflefinger, of Peoria, Illinois, and member of the DRI Board of Directors, is a highly accomplished trial attorney and transportation industry expert. He represents businesses, self-insured organizations, insurance carriers, and employers in state and federal courts throughout the midwestern United States. He is a Martindale-Hubbell AV rated lawyer and frequent speaker on cutting edge trucking-related litigation topics. Matt has been a member since 2005. 

Adam Konopka, DRI member since 2017 of Chicago, Illinois, has extensive experience guiding clients through catastrophic losses, from emergency responses through subsequent litigations. He also represents trucking clients in all types of commercial and contract disputes. 

Houston Harbaugh has announced two of their attorneys, who are DRI members, have been promoted.  

Corey Bauer, from Senior Associate to Senior Attorney. Corey is a business, patent, copyright, trademark, and trade secret litigator, and has been a DRI member since 2021.  

Jake Oresick, from Associate to Senior Associate. Jake has been a member of DRI since 2022 and is a litigator, focusing his practice in the areas of insurance coverage and bad faith, environmental law, intellectual property, and construction. 

Global law firm Clyde & Co opened an office in Boston, through a merger with local firm Hermes, Netburn, O’Connor & Spearing (Hermes Netburn). Hermes Netburn focuses on insurance coverage, surety and fidelity, and civil litigation with a particular focus on product liability, toxic torts and exposures, and construction matters.   

The following partners joined: 

-Kevin O’Connor, DRI member since 2000, who is an insurance and surety lawyer advising major national and international property and casualty insurers, reinsurers, and insurance claim administrators in complex coverage and surety law matters.  

-Holly Polglase, a trial lawyer specializing in complex product liability, pharmaceutical, medical device, toxic tort, asbestos, general liability, and commercial law matters. Holly has been a DRI member since 1990. 

-John Felice, a DRI member since 2012, is a trial and insurance lawyer with substantial experience representing manufacturers, distributors, businesses, premises owners and their insurers in a variety of toxic exposure cases, including asbestos, talc, mold and chemical exposure. 

-Peter Netburn the founder and long-time President of the firm, and a member of DRI since 2010. 

-Tony Sbarra, DRI member since 2002 and a member of the DRI Board of Directors, and Michael Batson, DRI member since 2012, both bring to Clyde & Co wide-ranging experience in the insurance coverage, product liability defense, construction, surety and fidelity practice areas.   

Audrey J. Forbush was elected by her colleagues during Plunkett Cooney’s recent annual meeting to serve as a member of the firm’s Board of Directors. Ms. Forbush focuses her trial practice primarily in municipal liability with expertise in police liability issues. Audrey has been a DRI member since 2005. 

Edna Sybil Kersting recently joined Health Care Service Corporation as Associate General Counsel. Edna has been a DRI member since 2007. 

Joseph C. Megariotis recently started a new position as Of Counsel at Connell Foley, LLP. He has been a DRI member since 2018. 

DRI member Eric Probst, has started a new position as Associate General Counsel at Schindler Elevator Corporation. Schindler Elevator Corporation is the North American operation of the Switzerland-based Schindler Group, a leading global mobility provider of elevators, escalators, and related services. Eric has been a DRI member since 2002. 

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. 

2023 Cannabis Law Seminar

May 2-3, 2023 | New Orleans, Louisiana 

Registration is now open for the 2023 Cannabis Law Seminar! Join us in New Orleans to listen to thought leaders from across the industry – from businesses to bankers to scientists to lawyers to insurers – as they present on exciting subjects such as recent efforts to research and reschedule cannabis; privacy concerns for businesses and consumers engaged in cannabis transactions; fintech infrastructure specific to cannabis transactions; insurance concerns facing those involved in the cannabis industry; cannabis toxicology; and evolving rules and regulations of psychedelic and psychedelic-adjacent drugs in light of success with medicinal cannabis. 

In anticipation of the gathering, here’s what our members are most looking forward to:  

Program Chair Patrick Price of King & Spalding LLP highlighted the exciting “Evolving Use and Regulation of Psychedelic and Psychedelic-Adjacent Drugs” presentation, saying "This seminar isn’t going to just cover recycled materials. It will cover real, up-to-date evolving topics.”  

2023 DRI Wind Energy Litigation Seminar

May 15, 2023 | Chicago, Illinois

The national energy landscape is rapidly evolving, demonstrated by the increasing emergence of both onshore and offshore wind energy projects. At the 2023 Wind Energy Litigation Seminar, attendees will gain an in-depth understanding about the onshore and offshore wind sector from experienced attorneys and directly from the industry itself. Join us in Chicago to gain valuable insight into existing litigation surrounding the industry as well as potential future litigation.

Civil Rights and Governmental Tort Liability, Women in the Law and Construction Law raised $2,500 on behalf of SafeNest through the DRI Foundation. DRI Cares selected SafeNest as the organization to spotlight during the recent January 20023 seminars in Las Vegas, Nevada because of its outstanding commitment to ending domestic and sexual violence in Southern Nevada. SafeNest is a local support and advocacy center and domestic violence shelter for victims of domestic violence and human trafficking. Supporting SafeNest was also fitting because January is National Human Trafficking Prevention month.  DRI Cares would like to thank all who participated and donated to this deserving organization. If you would like to make a donation, you can do so here: Donate Now - SafeNest 

Product Liability and Litigations Skills Seminar Attendees Partner with Caritas of Austin

Attendees at this year’s Product Liability and Litigation Skills Seminars in Austin, Texas, partnered with Caritas of Austin for a community service project in connection with DRI Cares. Caritas is a charitable organization whose mission is to prevent and end homelessness for hundreds of people in Austin each year through its programs and services.  
 
Our service project this year was to create Care Kits for Caritas to distribute to families in need.  This effort was two-fold: first, members were asked to contribute to fundraising efforts prior to the seminars to raise money to purchase items to go into the Care Kits.  Attendees then worked together to stock the Care Kits at the seminars.  Overall, nearly $4,000 was raised to fund the kits we donated to Caritas!  We are proud of this successful DRI Cares Project and look forward to many more to come at future DRI seminars!

2023 DRI Sexual Torts Seminar
March 13–14, 2023 | Indianapolis, Indiana
Defending businesses, churches, schools, and other institutions against liability for sexual abuse is a daunting challenge for defense lawyers.  Attendees will gain valuable education about investigation and discovery, statutes of limitation, evaluation of damages, and insurance coverage issues from experienced lawyers and professionals.

2023 DRI Life, Health, Disability, and ERISA Seminar
April 26-28, 2023 | New Orleans, Louisiana
The nation’s best conference for Life, Health, and Disability practitioners is making its long-awaited appearance in the Big Easy, with best-in-class CLE, enhanced networking opportunities, and new ways to connect with your colleagues in a setting unlike anywhere else. Explore New Orleans with networking events that offer something for everyone and earn CLE from top industry leaders and practitioners. Plus, the New Orleans Jazz and Heritage Festival kicks off on April 28; come for the seminar and stay for a weekend of world class music and celebration. This is the seminar you will not want to miss!

2023 DRI Business and Intellectual Property Litigation Super Conference
April 26-28, 2023 | New Orleans, Louisiana
The practice of law is changing, from where we practice to how we preserve and present evidence. At DRI’s Business Litigation and Intellectual Property Super Conference, you will learn about generational differences impacting the practice of law, issues in front of the Supreme Court and the anticipated effects of future rulings, the sweeping changes affecting restrictive covenants, and much, much more. Our featured experts will cover a wide range of issues affecting the modern litigator in an informative and interactive setting. Come reconnect, recharge, and leave reenergized about your practice.

2023 Toxic Torts and Environmental Law Seminar
April 26-28, 2023 | New Orleans, Louisiana
The nation’s best conference for toxic tort and environmental practitioners is making its long-awaited appearance in the Big Easy, with best-in-class CLE, enhanced networking opportunities, and new ways to connect with your colleagues in a setting unlike anywhere else. Explore New Orleans with networking events that offer something for everyone and earn CLE from top industry leaders and practitioners. Plus, the New Orleans Jazz and Heritage Festival kicks off on April 28 – come for the seminar and stay for a weekend of world class music and celebration. This is the seminar you will not want to miss!

2023 Cannabis Law Seminar
May 2-3, 2023 | New Orleans, Louisiana
Join us in New Orleans to listen to thought leaders from across the industry – from businesses to bankers to scientists to lawyers to insurers – as they present on exciting subjects such as recent efforts to research and reschedule cannabis; privacy concerns for businesses and consumers engaged in cannabis transactions; fintech infrastructure specific to cannabis transactions; insurance concerns facing those involved in the cannabis industry; cannabis toxicology; and evolving rules and regulations of psychedelic and psychedelic-adjacent drugs in light of success with medicinal cannabis. Plus, don’t miss the cross-seminar presentation with the DRI Employment Law Seminar on the state of cannabis in the workplace.

2023 DRI Drug and Medical Device Seminar
May 3-5, 2023 | New Orleans, Louisiana
Join us in historic New Orleans for the Drug and Medical Device industry’s premier event for learning, networking, and advancing the defense of life sciences clients! You’ll hear from heads of litigation from the world’s foremost drug and medical device companies, get the latest insight on jurors’ changing perceptions, and celebrate Daubert’s 30th anniversary. This year, take advantage of new CLE opportunities on Wednesday afternoon and small group, off-site networking events on Thursday afternoon, which provide more opportunities than ever to network with renowned industry experts while enjoying the best of New Orleans.

2023 DRI Employment and Labor Law Seminar
May 3-5, 2023 | New Orleans, Louisiana
Join us in the Big Easy as we reconnect at DRI’s 46th annual Employment and Labor Law Seminar. The nation’s best employment law seminar brings together leading management-side employment and labor attorneys, in-house counsel, human resources professionals, and EPLI representatives from throughout the U.S. and Canada. Always intensely practical and accompanied by helpful written materials, this seminar is indispensable for experienced practitioners as well as those who are just getting started in labor and employment law. Don’t miss this opportunity to learn from some of the best practitioners and professionals in the labor and employment arena.

Drug and Medical Device 101
March 22 | 11 a.m. CST
Drug and medical device manufacturers remain a target in high stakes litigation. Understanding the basics of drug and medical device litigation is key to defending the makers of these life-saving and life-saving drugs and devices. Join DRI for an informative webinar for a better understanding of FDA's regulation of drug and medical devices; product liability claims and defenses; and the applicability of the learned intermediary defense.

Nonlawyer Investment in the Legal Economy
March 23 | 11 a.m. CST
DRI’s Center for Law and Public Policy has authored the whitepaper: "Nonlawyer Investment in the Legal Economy." This webinar will outline the major regulatory changes in several US states that now permit nonlawyers to own law firms. We will explain the evolution from the "practice of law" by attorneys to the provision of "legal services" by nonlawyers, how this relaxation permits increased connection between corporations and alternative legal services providers, and how even litigators should prepare for these internet-based changes.

Medicare Secondary Payer (MSP) Act 101 – What You Need to Know Now
Produced by the DRI Center for Law and Public Policy’s Medicare Secondary Payer Task Force
April 18 | 11 a.m. CDT
MSP 101 will address Medicare Secondary Payer fundamentals that every claim professional and defense attorney should know. In this course, attendees will learn the history of the MSP Act, how to recognize when MSP is implicated, and basic compliance obligations of insurance companies and self-insureds as "Responsible Reporting Entities" under the MSP Act 1395y and corresponding CFR sections for reporting to CMS and protecting the Medicare Fund. If you need to refresh your knowledge of all things MSP, this is the right place to start. Additional courses will be coming soon.

The Importance of Biomechanical Experts in Trucking Cases
April 20 | 11 a.m. CDT
This program will cover the use of biomechanical experts in transportation litigation including the scientific issues these experts can speak to, the limitations of biomechanical science, and how to defend legal challenges against a biomechanical expert.