Docstoc

Contents And The Defense Wins And The Defense Wins

Document Sample
Contents And The Defense Wins And The Defense Wins Powered By Docstoc
					Tuesday, July 27, 2010                                     The Voice - July 30, 2008                                   VOLUME 7 NUMBER 30



Contents
And The Defense Wins
And The Defense Wins
DRI News
DRI CLE Calendar
And The Defense Wins
And The Defense Wins
And The Defense Wins
And The Defense Wins
And The Defense Wins
Leader Spotlight
SLG Spotlight
This Week's Feature
DRI News
DRI News
DRI News
DRI News
Quote of the Week
And The Defense Wins
Annual Meeting
Legislative Tracking
Links


July 29, 2008

And The Defense Wins

Bert Cass, a partner with Deutsch, Kerrigan & Stiles, LLP in New Orleans, obtained a defense verdict for his client, a general contractor,
who was being sued for millions in a serious personal injury suit. The sheet metal worker plaintiff alleged that the contractor had improperly
placed and installed a safety gate, which he was opening from atop a ladder, when he fell 18 feet, crushing his left heel, ankle and left elbow.
Four other defendants settled a week before the trial, leaving Mr. Cass to face three plaintiff's attorneys, their experts, and the plaintiff's
co-workers, who testified that opening the safety gate while standing on the ladder was dangerous and who were critical of the gate's
placement.

After a jury trial that lasted from May 5-14, 2008, the jury found in the defendant's favor. The case was tried in Civil District Court for Orleans
Parish, which is a notoriously unfriendly forum for defendants.
                                  ,
Joseph Vitari v Lou Con et. al New Orleans, Civil District Court


July 30, 2008

And The Defense Wins




 Douglas M. McIntosh




                                                                     Page 1 of 11
Former DRI board member, Douglas M. McIntosh, managing partner at McIntosh, Sawran, Peltz & Cartaya, P.A. with offices in Fort
Lauderdale, Miami, West Palm Beach and the Orlando/Maitland area, successfully represented the insurance company inEssex Insurance
Co. v. Zota before the Florida Supreme Court.

This case was handled by Mr. McIntosh and Fort Lauderdale associateThomas M. Hartwig at the trial court level four years ago, and by
Robert C. Weill, a Fort Lauderdale associate in the firm’s appellate division, with Mr. McIntosh on appeal over the past two years.

The case worked its way to the United States Court of Appeals for the Eleventh Circuit which then certified five questions of great public
importance to the Florida Supreme Court. Mr. McIntosh argued the case before the Eleventh Circuit and, later, the Florida high court in
November 2007. The supreme court’s 30 page unanimous decision marks a significant victory on insurance issues critical to the Surplus Lines
insurance industry in Florida. The supreme court held, consistent with long-standing precedent, that Surplus Lines insurers are not required to
deliver their policies directly to the insured, but may do so through the insured’s independent representative-broker.


July 30, 2008

DRI News
Congratulations to Sidley Austin partner Dan Troy who will join GlaxoSmithKline as senior vice president and general counsel on
September 2. While working in the Washington, D.C. office of Sidley Austin, Mr. Troy represented pharmaceutical companies and trade
associations on FDA matters and governmental regulations. He also served as chief counsel for the U.S. Food and Drug Administration from
mid-2001 through 2004.


July 29, 2008

DRI CLE Calendar
Does Your Firm Measure Up? (webconference)
August 5, 2008

Copyrights 101 (webconference)
August 12, 2008

National Workers' Compensation Review
August 18-19, 2008
Orlando World Center Marriott, Orlando, Florida

Religious Accommodation in the Public and Private Workplace(webconference)
August 21, 2008

Sometimes the Best Defense Is a Good Offense (webconference)
August 26, 2008

Intellectual Property Litigation
September 4-5, 2008
The Drake Hotel, Chicago, Illinois

Nursing Home/ALF Litigation
September 4-5, 2008
JW Marriott Orlando, Grande Lakes, Orlando, Florida

Construction Law
September 11-12, 2008
Bellagio, Las Vegas, Nevada

Key Strategies in Marketing and Practice Group Management (webconference)
September 23, 2008

Asbestos Medicine
November 6-7, 2008
Bellagio, Las Vegas, Nevada

Leadership, Compensation and Associate Retention (webconference)
November 11, 2008

Complex Medicine
November 13-14, 2008
Hotel del Coronado, San Diego, California

                                                                 Page 2 of 11
Fire and Casualty
November 20-21, 2008
Marriott Chicago Downtown, Chicago, Illinois

Insurance Coverage and Practice
December 4-5, 2008
Sheraton New York Hotel and Towers, New York, New York

For all other seminars and webconferences,click here.


July 29, 2008

And The Defense Wins




Daniel Federico




On May 2, 2008, DRI member Daniel Federico, a partner at Garson, DeCorato and Cohen in Manhattan, won a unanimous jury verdict on
                                                                                                                  (
behalf of a board certified orthopedic surgeon sued for negligence in the performance of a total hip arthroplasty Sutton v. Kassapidis, Queens
County Index #8896/05). The defendant doctor performed hip replacement in a then 68-year-old woman with osteoarthritis and two prior hip
replacements on the opposite side.

During the procedure, cementless, porous in-growth components were used. Intraoperatively, trial components were fitted, full range of
motion was achieved and post operative x-rays demonstrated good placement of the permanent joint components. Fourteen months later, the
plaintiff underwent revision of that hip. She alleged that malpositioning of the acetabular component at the time of the defendant’s surgery
caused undue pain, impingement and loosening of the joint prosthesis. The plaintiff maintained that the position of the cup, at approximately
30º abduction, was excessively horizontal and caused premature failure of the joint component. She also relied on several post operative
treatment records and x-ray reports in evidence, as well as the operative report from the revision surgery that referred to the components
placed by the defendant as malpositioned.

The defendant demonstrated at trial that the orientation of the acetabular component was within the safe zone for placement of such
components and that none of the complications associated with malpositioned components came to fruition in this case. The defendant
showed the jury, through demonstrative use of an actual joint component and post operative films and bone scans, that the components were
seated properly and that there was no evidence of loosening, dislocation or impingement such as to require revision surgery fourteen months
later.

Ultimately, after deliberating for less than two hours, the jury was persuaded that the placement of the joint components was an appropriate
exercise of medical judgment by the defendant doctor.


July 29, 2008

And The Defense Wins




Steven J. Polansky




                                                                 Page 3 of 11
DRI member Steven J. Polansky, a shareholder in the Cherry Hill, New Jersey office ofMarshall, Dennehey, Warner, Coleman & Goggin,
obtained two summary judgments recently. In the first one, he teamed with a colleague to successfully defend the New Jersey Manufacturers
Insurance Company in a coverage action involving issues relating to permissive use of an automobile. The son of the vehicle owner had been
in the back seat at the time of the accident, but claimed he had not given his friend permission to drive the vehicle. Those in the car had been
visiting Philadelphia from New Jersey to watch illegal drag races. During this time, various occupants consumed a number of controlled
substances.

The trial court found as a matter of law that the vehicle operator did not have permission to operate the vehicle, and granted summary
judgment to the New Jersey Manufacturers Insurance Company.

In the second case, Steven J. Polansky successfully obtained summary judgment on behalf of USAA in a case where the insured sought to
have the carrier pay for re-siding his entire home, since siding (which was damaged on one side of the home) allegedly could not be replaced
with identically matching siding. The trial court agreed with the position of USAA that the insurance policy only required replacement of that
property which sustained physical damage. The court dismissed both the breach of contract and bad faith claims.


July 29, 2008

And The Defense Wins




Robert W. Harrison




DRI member Robert W. Harrison, a partner in the San Diego office ofWilson, Elser, Moskowitz, Edelman & Dicker LLP, obtained a
defense verdict on behalf of Mark A. Nocera, D.D.S., d.b.a. Avia Dental Care, in a San Diego Superior Court dental malpractice jury trial
involving alleged negligence and fraud. The plaintiff was Dr. Nocera’s patient.

                                                                               ,
In her lawsuit, Parsons-May v. Mark A. Nocera, D.D.S., d.b.a. Avia Dental Care Superior Court Case Number GIC 859472, the plaintiff alleged
that the defendant negligently diagnosed and treated her in connection with the placement of a ceramic inlay on tooth number 19 and the
fabrication and delivery of a mouth-guard. She alleged that the treatment exacerbated her exiting nerve disorder and that the tooth restoration
was unnecessary and therefore, the treatment constituted fraud and was not within the applicable standard of care. The plaintiff alleged
injuries to her lower left side tooth and jaw and sought $750.00 in special damages and $250,000.00 in general damages.

At trial, the defendant denied all allegations and contended that all of the treatment was necessary and skillfully performed within or above the
applicable standard of case. The defendant further denied that the plaintiff suffered any damages.

The defendant’s expert witness, Michael McMahon, D.D.S., testified that the defendant’s treatment of the plaintiff was within the standard of
care.

The defendant offered to settle this matter for a waiver of costs but this offer was denied. The jury trial lasted six days and on August 2, 2007,
after a half a day of deliberation, the jury absolved the defendant of any wrongdoing. As the prevailing party, the defendant was awarded
$15,729.49 in costs.


July 29, 2008

And The Defense Wins




Dennis J. Roman




                                                                   Page 4 of 11
With the help of a colleague, DRI member Dennis J. Roman, a shareholder in the Pittsburgh office ofMarshall, Dennehey, Warner,
Coleman & Goggin, obtained summary judgment in a legal malpractice action wherein, based upon DNA evidence, the plaintiff was
exonerated for murder, after spending 18 years in prison. The plaintiff alleged that the firm's client, his former counsel in the post-conviction
proceedings, stipulated to an inferior method of DNA testing which produced an inconclusive result and prevented his early release.

The court granted summary judgment on statute of limitations grounds, finding that the statute begins to run upon the termination of the
attorney-client relationship and not upon the plaintiff's release from prison while represented by PCRA counsel on a second petition. The
defense counsel convinced the court that the termination of the attorney-client relationship occurs when the client is no longer represented as
a matter of fact and is not dependent upon counsel's formal withdrawal as counsel listed on the docket, as plaintiff argued.


July 29, 2008

And The Defense Wins


DRI members Lin West and Amy Collier Eason of Woodward, Hobson & Fulton’s Lexington, Kentucky office teamed with another
colleague recently to secure a defense verdict for CSX Transportation, Inc. in Gallatin County, Kentucky. On May 8, 2008, after a four day trial
arising from a March 17, 2004 collision between the plaintiff’s jeep and a railroad truck, the jury rejected plaintiff’s $2.5 million demand and
returned a unanimous verdict for CSXT.

The Commercial Driver’s License Manual says that “when an opposing driver has drifted into your lane, a move to the right is best.” Because
CSXT’s truck driver turned toward the open left lane at the last instant, and the plaintiff began to return to her lane, the plaintiff’s attorney and
reconstruction expert Jerry Pigman took the position that CSXT should bear significant responsibility for plaintiff’s serious injuries resulting
from a collision which occurred near the center line of Kentucky Highway 467.

An important part of the trial was the jury view of the accident scene. The defense argued that numerous photos, videos, and diagrams of the
scene did not do justice to the severity of the ditch and nearness of the tree line on the side of the roadway, where the plaintiff maintained that
the railroad driver should have bailed out with the truck. Several jurors indicated in post-verdict interviews that the view was an important factor
in the defense verdict.

CSXT’s trial experts were reconstructionist William Cloyd of Lexington, Kentucky and commercial driving/training expert Whitney Morgan of
Birmingham, Alabama. (Vicky Vannarsdall v. CSX Transportation, Inc., Gallatin (Kentucky) Circuit Court, No. 05-CI-00180, May 8, 2008).


July 30, 2008

Leader Spotlight




Heidi G. Goebel




This week, we are pleased to highlightHeidi G. Goebel, a member of DRI’s Product Liability Steering Committee, the publication chair for
DRI’s Commercial Litigation Financial Institutions and Creditor’s Rights Specialized Litigation Group and the membership chair for the
Business Torts Specialized Litigation Group. Heidi chairs the firm’s commercial liability practice group at     Christensen and Jensen, PC, in Salt
Lake City, Utah. She is also actively involved in its product liability, professional liability and personal injury sections. Heidi has practiced law in
four states and has extensive experience in complex commercial litigation matters, product liability and personal injury cases. Her practice also
focuses on professional liability cases; she has obtained numerous summary judgments and claims dismissals in favor of architects,
engineers and mental health care professionals.

DRI’s Product Liability Committee Vice Chair, John F. Kuppens of Nelson Mullins, commented that, “Heidi has been a valued contributor to
the Product Liability Committee for many years, and she always brings enthusiasm and creativity to her committee work.” Currently, she is
serving as the committee’s web conference liaison. Heidi has contributed to various DRI publications, including the Utah chapter in DRI’s
Product Liability: A 50 State Compendium and as co-author of “Notice, Marking and Patent Damages” inDefending Intellectual Property
Claims.

This year, Heidi was named a rising star by Mountain States Super Lawyersmagazine. In 2006, the Utah Business Journal cited her as one of
Utah’s elite lawyers in corporate law. In 2000, Heidi received Indiana’s "Outstanding Young Defense Lawyer of the Year" award.

Heidi earned both her undergraduate and J.D. degrees from Indiana University in Bloomington where she is currently a member of the School

                                                                     Page 5 of 11
of Law Moot Court Alumni Board. She is a member of the Utah Defense Lawyers Association, the Utah State Bar Association, the Federation
of Defense and Corporate Counsel, and the American Mensa Association.

In her spare time, Heidi enjoys entertaining guests and serving as their guide to skiing, biking and hiking in the Wasatch Mountains which
surround Salt Lake City. A former dance instructor, Heidi is always happy to be able to fit in time for a dance class or to watch a performing
company.


July 30, 2008

SLG Spotlight




This month’s spotlight is on the newest Special Litigation Group of theCommercial Litigation Committee, which focuses on business torts.
The Business Torts SLG serves those persons who handle a variety of commercial litigation claims, including both those involving insurance
defense and non-insurance based claims and business related claims which can fall on either side of the “v.”

The Business Torts Special Litigation Group seeks to provide educational and networking opportunities for commercial litigators practicing in
the broad spectrum that is loosely collected under the umbrella of business torts. Subject areas encompassed are purposely broad and extend
to cases involving, for example,

- Breach of fiduciary duty
- Breach of contract
- Covenants of good faith and fair dealing
- Fraud
- Business defamation and disparagement
- Unfair competition
- Restrictive covenants
- Trade secrets, and
- Tortious interference

While these subject areas may overlap and share membership with other substantive area SLGs, the programs of the Business Torts SLG will
be designed specifically to be meaningful to the more generalized commercial litigator who has, to date, not been active in the DRI
Commercial Litigation Committee or its SLGs.

The Business Torts SLG is quickly growing to one of the largest SLGs of the Commercial Litigation Committee and currently has over 130
members. The first “in person” meeting will be held in Chicago on September 3, 2008, at 1:00 p.m. in conjunction with Commercial Litigation's
Intellectual Property Seminar held at the Drake Hotel. Then, beginning in October, the SLG will have telephone meetings every other month
which will include a substantive presentation and ongoing opportunities for network development.

While the initial focus will be on addressing the needs and interests of existing members of the Commercial Litigation Committee, efforts will
be undertaken to use the SLG to recruit broader membership in the Commercial Litigation Committee from commercial litigators both within
and without DRI. In that regard, the SLG hopes to be responsive to the needs of those transitioning to a general commercial practice from
other areas.

The SLG also seeks to provide its members increased opportunities to publish or present programs in different forums, including
teleconferences. Its programs and publications will include both substantive topics and practical skills. The group is currently soliciting authors
for the upcoming Commercial Litigation compendium on damages. There will be regular publication opportunities, as the SLG will also have
standing commitments to DRI’s regular publications.

The group is led by Jim Gale, along with co-chairman Chris Belter. The Steering Committee is rounded out by Cynthia Arends, Vice Chair;
Russ Morgan, Web Conference Chair; Kathy Lang, Program Chair; Rich Dukes, Publications Chair; and Heidi Goebel, Membership Chair.
For additional information or to join, please contact Jim Gale atJim.Gale@smithmoorelaw.com or Heidi Goebel at
heidi.goebel@chrisjen.com or (801) 323-5000.


July 30, 2008

This Week's Feature

The Fifth Amendment Privilege in Civil Litigation: What Is the Practical Effect of an Adverse Inference?


                                                                   Page 6 of 11
By Robert T. Horst and Justin K. Fortescue,Nelson Levine deLuca & Horst

While most litigators are well aware of the Fifth Amendment’s absolute protection against self-incrimination in criminal cases, the Fifth
Amendment has also been interpreted to provide protection against self-incrimination in civil cases.Baxter v. Palmigiano, 425 U.S. 308, 316
(1976) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)). This right against self-incrimination, when asserted, may have a far-reaching
impact in a civil action, and may seriously impair the ability of a party to establish the elements of a case. A litigator, when confronted by a
witness or party who “pleads the Fifth” in a civil case, must be prepared to act to minimize the effects this tactic may produce. This article is
intended to provide a brief, but hopefully useful, step-by-step approach to dealing with the assertion of a Fifth Amendment privilege in a civil
case.

Step 1: Identify the Applicability of the Privilege

The Fifth Amendment’s privileges against self incrimination applies in both criminal and civil cases any time an answer would (1) support a
                                                                                           M
criminal conviction; or (2) furnish a link in the chain of evidence needed to prosecute. alloy v. Hogan, 378 U.S. 1 (1964). Thus, to properly
invoke the Fifth Amendment privilege, a party must show that it is evident from the implications of a question, in the setting it is asked, that a
responsive answer might incriminate them. Id. Where a party is unable to make such a showing, you can challenge a party’s assertion of the
Fifth Amendment. However, the Supreme Court has set a high burden to prevail on such a challenge. InMalloy, the Court found that, in order
to overrule an individual’s assertion of the Fifth Amendment, it must be “perfectly clear, from a careful consideration of all the circumstances in
the case, that the witness is mistaken, and that the answer(s) cannot possibly have such tendency to incriminate.”Id. With such a high
standard, it is difficult to prevail on a challenge to a party’s assertion of the Fifth Amendment. As will be discussed below, however, the fact
that you may not be able to overrule a party’s assertion of the Fifth Amendment does not mean you cannot limit/negate its effect.

Step 2: Frame the Scope of the Privilege

When faced with a party asserting the protection of the “Fifth,” and that party refuses to testify and/or provide documentation, it is next
suggested that you frame the scope of the privilege being asserted. While the Fifth Amendment privilege against self-incrimination can be an
effective defense, it can only be asserted as to specific questions or document requests and cannot be asserted as a blanket refusal to testify
                                                                                  ,
or to produce an entire category of documents.See United States v. Argomaniz 925 F.2d 1349, 1352-53 (11th Cir. 1991);Nationwide Mut.
Fire Ins. Co. v. Dunkin, 850 F.2d 441 (8th Cir. 1988). Thus, an individual asserting the privilege must establish the incriminating nature of each
question or request.

In Nationwide, Dunkin shot and killed her husband, and Nationwide provided her with counsel to represent her in the wrongful death action
filed by the administrator of her husband’s estate. Although Dunkin’s Answer claimed that she shot her husband in self-defense, she refused to
answer interrogatories regarding the incident and asserted her Fifth Amendment privilege against self-incrimination. In response to the
administrator's motion to compel, the state trial court ordered Dunkin to answer all but two of the interrogatories, but she refused to do so. The
state trial court granted Nationwide’s motion, struck Dunkin's Answer, and entered a default judgment against her on the issue of liability under
her homeowners’ policy. The Arkansas Supreme Court affirmed the sanction, concluding Dunkin's “blanket refusal” to answer, coupled with a
lack of any particularized showing of the potentially incriminating nature of each question, was not sufficient to meet her burden of establishing
a foundation for the assertion of the privilege.Id.

Similarly, in AT&T Broadband v. Private Cable Systems, Inc., 2002 WL 924635 (N.D. Ill. 2002) AT&T served discovery upon defendants
seeking the identification of defendants’ assets. Defendants objected to the discovery, arguing it violated their Fifth Amendment right against
self-incrimination because it would establish: [1] that such assets exist; [2] that the defendants have dominion and control over those assets;
[3] that those assets are within the category of assets frozen by the court; and [4] that those assets originated from the activities complained of
by the plaintiff. However, because the defendants did not provide any explanation as to how disclosure regarding the first three subjects
would tend to incriminate them, the court was unwilling to assume that incrimination would occur. Additionally, although the court found that
disclosure regarding the fourth subject could arguably result in self-incrimination, because the defendants provided no evidence that all of
AT&T’s requests fell with that category, their blanket refusal to respond was unjustified.Id.

The above case law demonstrates that a party may plead the Fifth as to specific questions and/or requests. A blanket refusal to provide any
information is generally deemed insufficient. As a result, if an adverse party pleads the Fifth, effective litigators will demand that the party
explicitly enumerate the reason(s) underlying the assertion of the privilege, and the specific questions/requests that must go unanswered as a
result. If the party asserting the Fifth refuses or is unable to do so, a court is unlikely to allow the party to exercise the privilege.

Step 3: Seek the Adverse Inference

As you seek to compel an adverse party to disclose the specific reasons for which he/she asserts the Fifth Amendment right, you should freely
discuss the consequences that may follow the assertion of the privilege. Simply because an individual chooses to “plead the fifth” in a civil
case that does not mean there are no consequences for doing so. The assertion of the privilege, in fact, is a witness’ choice; therefore, any
record, e.g., deposition, trial testimony, etc., clearly listing the potential consequences of that choice will be far more compelling. An effective
litigator is best advised to create that record question by question, along with the best possible description of what the witness refused to
answer and why. Certainly, counsel for the asserting witness may prevent even these answers from being “of record,” but the inquiring
counsel is better served by additional detail. An analysis of some relevant case law may be of assistance.

In Spevack v. Klein, 385 U.S. 511 (1967) the Supreme Court held that an individual asserting the Fifth Amendment right against
self-incrimination could not be penalized. The Court went on to interpret this to include any practice that makes the exercise of the privilege
“costly.” Id. Into that category the Court has placed sanctions with serious economic consequences, such as the loss of employment or state
contracts. See Id. (attorney may not be disbarred for exercising the privilege). While “costly” penalties are not permitted, the Supreme Court
                                                                                                        S
has held that an adverse inference can be drawn from the silence of an individual pleading the Fifth. ee Baxter, supra. This adverse
inference allows a fact-finder to draw a presumption that the response to a refused question would have been adverse to the individual’s
position in the litigation. Id.


                                                                   Page 7 of 11
To gain the benefit of this adverse inference, a few steps must be followed. First, an adverse inference can only be drawn from a party’s
invocation of the Fifth Amendment when independent evidence exists that supports the facts to which the party refuses to answer.See Peiffer
v. Lebanon School Dist., 848 F.2d 44 (3d Cir. 1988). Where no evidence is put forward to support the facts or allegations on which a party
                                                                                                ,
refuses to answer, no adverse inference is permitted.See LaSalle Bank Lake View v. Seguban 54 F.3d 387 (7th Cir. 1995). As such, you must
introduce probative evidence against the party in order to gain the benefit of an adverse influence.

The second step to gain the benefit of the adverse inference is to ensure that sufficient evidence is introduced at trial, such that you are not
seeking a judgment based solely on the adverse inference. Although courts are permitted to draw an adverse inference from an individual’s
refusal to testify in a civil case, that does not mean such an inference equals an automatic judgment in the other party’s favor. In fact, such a
finding would likely be found to violate the Constitution. InLaSalle Bank Lake View, the Seventh Circuit held that, although inferences based
on the assertion of the Fifth Amendment privilege are permissible, the entry of judgment based only on the invocation of the privilege, “without
regard to the other evidence,” exceeds constitutional bounds. LaSalle Bank, 54 F.3d at 391 (quotingBaxter, 425 U.S. at 318). Thus, while an
adverse inference can be helpful in establishing a party’s arguments or positions against a party refusing to testify, it is insufficient to
single-handedly support a finding in the party’s favor.

The final step in obtaining an adverse inference is to ensure that the jurisdiction you are in allows such an inference. While the Supreme Court
had held that an adverse inferencecan be drawn from a party’s silence in a civil case, there is nothing that requires each state to do so. As a
result, some jurisdictions have completely eliminated the use of adverse inferences in connection with the Fifth Amendment right against
self-incrimination. In Fischer v. Hooper, 143 N.H. 585 (1999), the New Hampshire Supreme Court discussed New Hampshire Rule of Evidence
512, which prohibits juries in both civil and criminal cases from drawing negative inferences from the invocation of the right against
self-incrimination. Under Rule 512(b) civil proceedings must be conducted, to the extent practicable, so as to facilitate the making of claims of
privilege without the knowledge of the jury. N.H. R. Evid. 512. In Fischer, the trial court required the defendant to invoke his right against
self-incrimination in the presence of the jury. The New Hampshire Supreme Court held that the trial court erred because it failed “to take
                                                                                                                                    F
reasonable steps to insure that the jury [was] unaware that [the defendant] had invoked the privilege against self-incrimination. ischer, 143
N.H. at 596.

Conclusion

An adverse party’s unexpected use of the Fifth Amendment in a civil case can be not only unnerving but can also lead to a judgment against
your client if adequate remedial measures are not taken. If you find yourself presented with a party pleading the Fifth in a civil case, it is
essential that you follow the above steps.

First, determine if you have a basis to challenge the assertion of the Fifth Amendment. If there is no basis to support the party’s assertion that
a responsive answer might incriminate him/her, you may be able to overrule the privilege. Second, demand that the party explicitly state the
reasons for asserting the privilege and for what specific questions or requests he/she is asserting it to. If he/she is unable/fails to do so, the
party may not be permitted to assert the privilege. Third, remember that probative evidence against the party must be introduced in order to
gain the benefit of an adverse influence. Where no probative evidence is established, there can be no adverse inference. Fourth, ensure that
sufficient evidence is introduced at trial such that you are not seeking a judgment based solely on an adverse inference. A judgment based
solely on an adverse inference will likely be found to violate the Constitution. Finally, make sure the jurisdiction in which you are litigating
permits the use of adverse inferences in civil cases. If it does not, you will not be able to gain the advantage of the adverse inference.

If these simple steps are followed, not only will the effect of the privilege be minimized but you will also gain the advantage of an adverse
inference against the party. While not dispositive of the outcome of the case, the adverse inference will go a long way towards a favorable
judgment.


Robert T. Horst (rhorst@nldhlaw.com)
Justin K. Fortescue (jfortescue@nldhlaw.com)
Nelson Levine deLuca & Horst
Blue Bell, PA


July 30, 2008

DRI News
National Workers’ Compensation Review
August 18-19, 2008
Orlando World Center Marriott Orlando, Florida
For its inaugural participation in the Florida Workers’ Compensation Institute Inc.’s (FWCI) 63rd annual conference, DRI will present its own
two-day stand-alone program within the larger conference. DRI’s presentations on Monday afternoon and Tuesday morning will feature an
array of legal and medical workers’ compensation topics with nationwide implications and applications. Our preeminent attorneys, industry
spokespersons and physicians will discuss developments and trends in multiple areas of concern—stressing essential take-away concepts
that attendees can apply effectively back at the office. The intermediate level program is especially geared for attorneys, adjusters and risk
management/ employer representatives. DRI registrants may attend all FWCI sessions, including the opening session on Monday morning
featuring ex-NFL quarterback Terry Bradshaw, as well as receive one ticket to the Monday night reception with entertainment provided by the
1980s sensation, The Bangles. To register now, click here or call 312.795.1101 for more information!


July 30, 2008

DRI News


                                                                   Page 8 of 11
Pre-Order Your Copy Today —Evidentiary Privileges for Corporate Counsel

The first comprehensive publication in this area for the Defense Library Series is a body of work that serves as a single resource for
understanding the evidentiary privileges faced most often by corporations in general and their inside and outside counsel in particular.
Skillfully written by various authors, the publication analyzes each selected privilege and related issues in-depth, so that corporate counsel
can gain a fundamental understanding of each topic.

The authors provide surveys of the relevant privilege law in the federal circuit courts, as well as throughout the fifty states. Practice tips are
also offered so that in-house and outside counsel can work effectively and efficiently in taking the necessary steps to establish and maintain
the particular privilege, long before a judge decides whether a communication or document must be produced to an adversary. This
publication will be an essential resource for all in-house and outside counsel.Click here to pre-order your copy today or for more
information.


July 30, 2008

DRI News
Demand Is Great — Drug and Medical Device Litigation Primer Returns September 23!
DRI’s Drug and Medical Device Litigation Primer has long been applauded by both companies and their outside counsel as the ideal
training program for junior defense lawyers (typically in their first through third years in the practice). For a very modest fee ($175), and in an
easily accessible and desirable location (the beautiful city of Chicago), participants learn from leading experts about such essential topics as
the applicable FDA regulations, typical claims and defenses, medical causation and epidemiology, discovery and expert witness issues and
in-house counsel’s expectations. To maintain the seminar’s informal classroom style, registration islimited to only 100 lawyers. Historically,
the Drug and Medical Device Litigation Committee has offered the Primer only every other year. Last year, however, demand was so great
and the seminar was oversubscribed so quickly that the Primer is being offered again this year.For more information and a registration
form, click here!


July 30, 2008

DRI News




LAST CHANCE: Deadline Is Friday, August 1
DRI’s Annual Professional Achievement and Service Awards celebrate and honor outstanding performance by SLDOs, DRI law firms and
                                                                                                            view the brochure online.
individual members. Brochures detailing the awards and nomination criteria have been mailed, and you may also
We encourage you to recognize the accomplishments of your peers and submit entries for each of the awards. The call for nominations
deadline is August 1, 2008. The awards will be presented at the Awards Luncheon, Thursday, October 23, with Eleanor Clift, regular panelist
on The McLaughlin Group and Newsweek columnist, as guest speaker. To register for the luncheon and other events at the Annual
Meeting, click here.


July 30, 2008

Quote of the Week
Anyone can hold the helm when the sea is calm.
— Publilius Syrus


July 30, 2008

And The Defense Wins
Keep those defense wins coming! Send a short summary and recent photo of yourself to Barb Lowery by e-mail blowery@dri.org) or fax
                                                                                                           (
(312.252.0959).



                                                                    Page 9 of 11
July 30, 2008

Annual Meeting




October 22-26, 2008
Sheraton New Orleans
New Orleans, Louisiana

Jury Persuasion and Masters in Marketing — Don't Miss These Invaluable CLE Sessions!

Sonya Hamlin will present “Now What Makes Juries Listen” on Thursday, October 23 from 10:30 AM – 12:00 PM. This dynamic session will
provide instruction on reaching and persuading today’s jurors and overcoming three major issues: dependence on email/texting and the
decline of talking/listening; generational beliefs, experiences and prejudices; and multicultural diversity.

Saturday, October 25 from 9:00 AM – 12:00 PM, Stephen G. Morrison , Neil A. Goldberg, Zenola Harper, Gabriel A. Jackson, C. Barry
Montgomery and Albert H. Parnell will head an interactive presentation titled “Masters In Marketing.” This program will discuss the very
best in business development. These premier DRI rainmakers will share their secrets on creating relationships with new clients, as well as
maintaining and building relationships with current clientele.

                                                                                                       To
Don’t miss this opportunity to attend these cutting-edge and other stellar CLE sessions in the Big Easy! view the program brochure, click
here, or visit www.DRI.org for more information!


July 30, 2008

Legislative Tracking
Legislative Update — EMPLOYMENT LAW
Michigan
MI HB 6332: Elliott-Larsen Civil Rights Act amendments.
• Regarding fair employment practices: to prohibit the discharge of an employee when an unauthorized alien is retained; to provide civil
remedies; and for related purposes.
• 07/23/2008 – Introduced; referred to Committee on Oversight and Investigations.

INTELLECTUAL PROPERTY
Federal
FD SB 3325: Enforcement of Intellectual Property Rights Act of 2008.
• A bill to enhance remedies for violations of intellectual property laws, and for other purposes.
• 07/24/2008 – Introduced; referred to Committee on the Judiciary.

PRODUCT LIABILITY
Federal
FD HB 4040: Consumer Product Safety Modernization Act.
• An Act to establish consumer product safety standards and other safety requirements for children's products and to reauthorize and
modernize the Consumer Product Safety Commission.
• 07/28/2008 – Agreement reached by House and Senate conferees.


DRI gratefully acknowledges the Young Lawyers Committee Legislative Subcommittee for its contributions toThe Voice’s weekly legislative
updates.


May 20, 2003

Links




                                                                   Page 10 of 11
About DRI

Annual Meeting/P>

Membership

Membership Directory

News and Events

CLE Seminars and Events

Publications

The Alliance

DRI Europe

Archive




Published by DRI




                          Page 11 of 11

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:0
posted:4/6/2013
language:Unknown
pages:11