Defendants Enter Batter’s Box With Two Strikes Already Called

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Until April 3, 2018 when the New York Court of Appeals handed down Rodriguez v. City of New York, it was well-established law in personal injury litigation in New York that a plaintiff was not entitled to summary judgment if he could not make a prima facie showing he was free of comparative negligence. The sharply divided Rodriguez court, overturning precedent, held in a controversial 4-3 decision that requiring a plaintiff to make such a showing is inconsistent with Article 14-A of the CPLR, which codified the State’s comparative negligence principles. From now on, a plaintiff responsible for 99 percent of culpability may have an opportunity to prevail on a motion … Continue reading →

Sen. Chris Murphy Battles Headwinds To Protect Connecticut’s Environment

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Senator Chris Murphy  believes  that everything that one needs to know about environmental conservation is embodied in the rototiller rule, which he learned from his Senate colleague, Angus King of Maine.  In short, the rototiller rule is that if you borrow your neighbor’s rototiller, you should always give it back in as good of shape as you got it.  If you screw up the rototiller, it is your obligation to fix it.   According to Murphy, we have the planet on loan from future generations and we have the solemn responsibility to leave our descendants with the planet in as good shape as we found it. This should not be considered a partisan issue, … Continue reading →

Reference Manual On Scientific Evidence: A “Must-Have” In Defense Lawyer’s Toolbox

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The Reference Manual for Scientific Evidence (3rd Ed.) (“RMSE Third”), published by the Federal Judicial Center and the National Research Council of the National Academies,  is an indispensable tool that can support defense lawyers’ efforts  in making their Daubert  motions persuasive.  Contrary to the suggestion made in a recent article appearing in the DRI publication, The Voice (2/21/18), that RMSE Third is “an overlooked litigator’s tool”, it should be consulted not just when crafting Daubert arguments, but in preparing to take plaintiff’s expert’s deposition as well.  In summary, RMSE Third provides a roadmap for handling most, if not all, of the complex technical and scientific issues in your matters.  You overlook … Continue reading →

NY Court Of Appeals Rules That Facebook “Private” Postings Are Discoverable

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In a striking reversal of a decision of the Appellate Division, First Department, the New York Court of Appeals firmly rejected the notion that there is a heightened “factual predicate” standard for discovery of material posted by a plaintiff on social media in Kelly Forman v. Mark Henkin, 2018 WL 828101, 2018 N.Y. LEXIS 180(February 13, 2018).  In its ruling, the high court explained that: “While Facebook–and sites like it–offer relatively new means of sharing information with others, there is nothing so novel about Facebook materials that precludes application of New York’s long-standing disclosure rules to resolve this dispute.” Prior to this … Continue reading →

A Local Counsel’s Duties and Responsibilities

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Are there potential pitfalls in accepting a role as a “mailbox”, or a local counsel whose role is to merely facilitate  an out-of-state lawyer’s working on a pro hac vice basis in your  jurisdiction?   Upon being retained, most lawyers asked to serve as local counsel will advise national counsel that they will do as much or as little as national counsel requires.  Are there instances, however, when doing too little is not doing enough?   Local counsel’s duties and responsibilities are governed by (1) first and foremost,  referring out-of-state counsel’s requirements (2) local counsel’s obligation to the court and (3) the Model Rules of Professional Conduct.  In most circumstances, local counsel has no difficulty navigating among … Continue reading →

Bring That Lawsuit….What Have You Got To Lose?

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In its January 2018 Legal Bulletin, USI Affinity, which markets Lawyers Professional Liability Insurance to members of the New York State Bar Association, discusses the sharp increase in settlements of cases alleging Traumatic Brain Injury (“TBI”) and Spinal Fusion Surgery due, in large part, to the perceived high liability exposure presented by these types of claims and the difficulties inherent in defending them. The Challenge of Defending Against a TBI Claim In an article prepared by Andrew R. Jones and Nir Gadon of Furman Kornfield & Brennan LLP for the Legal Bulletin, the authors discuss how notoriously difficult it can be to defend a TBI claim because the … Continue reading →

Preparing Your Client for SDNY Mediation

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The growth of the SDNY mediation program increases the likelihood that a matter docketed there will be referred to mediation. There is a wealth of good information on the SDNY’s website that can help practitioners prepare their clients for participating in ADR in the court-annexed voluntary mediation program. The answer to many questions that a client may have concerning the SDNY mediation “experience” is likely provided on the court’s Mediation/ADR website.  Therefore, even if the practitioner has never mediated a case in the court’s mediation program, there is great deal of helpful information on the court’s website that explains what is involved and how the process … Continue reading →

GMOs And “100% Natural” Found Consistent In Food Class Action

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In the absence of any legitimate science suggesting that GMOs are unsafe, the anti-GMO movement is seeking to promote “alternative facts” in a judicial setting and achieve, through deceptive trade practice and tort litigation, what they have failed to achieve in a scientific or regulatory setting. The Hon. Richard G. Stearns recently dismissed a federal Massachusetts consumer class action, Lee v. Conagra Brands, Inc., 1:17-cv-11042 (D.Mass October 25, 2017),  contending that Wesson vegetable oil was falsely labeled “100% natural”  because the manufacturer extracted from genetically modified corn, soybean and rapeseed.  In his decision,  Judge Stearns opined that:  “Because Wesson’s “100% natural” label conforms to … Continue reading →

Major U.S. Government Report Acknowledges That People Cause Climate Change

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On November 3, 2017, the United States issued an exhaustive scientific report, titled the “Climate Science Special Report”, which acknowledges that human activity is a major cause of the temperature rise that has occurred over the past century.  The climate science report is part of a Congressionally mandated review that occurs every four years known as the National Climate Assessment.  The National Climate Assessment represents the findings and analyses of hundreds of experts and scientists from federal agencies, national laboratories, universities, and the private sector. The final work product was peer reviewed by the National Academy of Sciences. The National Oceanic and … Continue reading →

Defending Ecosystem Damage Claims: A Primer

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Claims alleging natural resource or ecological damage are on the rise, but the standards governing the performance of ecological risk assessments are  not nearly as developed as the standards used for evaluating human health risks.  Consequently, the legal defenses to natural resource or ecological damage claims are not as well-developed as the defenses to claims of risk to human health.   Fortunately for the environmental defense bar, Carol M. Wood, a partner at King & Spalding; Judi L. Durda, a vice-president and toxicologist/ecologist at Integral Consulting; and Stephen Rahaim, chief environmental counsel at E.I. duPont de Nemours and Company, have written an excellent primer for navigating through … Continue reading →