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2013 may be remembered for the high profile gay, lesbian, bisexual and transgender (GLBT) issues that have played across national headlines. Consider the following. Two cases were argued before the Supreme Court in March with potential for landmark rulings on gay marriage, and for the first time, national polls show most Americans support giving gays the right to marry. In April, the Boy Scouts of America announced the group is considering dropping a hundred year old ban on gay members. Modern Family, which features a same s*x couple, has become one of the most watched television show in the country. And just this past Monday, National Basketball Association player Jason Collins made headlines when he became the first active professional athlete in a “major” North American team sport to come out publicly as gay. Based on these developments, we can assume GLBT individuals can go anywhere with ease, yes? Well, not so fast.

Thanks to the United States Supreme Court's recent decision in Mensing v. Pliva, litigants now enjoy some clarity regarding the fate of plaintiffs' claims against generic pharmaceutical manufacturers. And given the overwhelming rejection of the California Court of Appeals' decision in Conte v. Wyeth (at least until the Alabama Supreme Court's recent decision in Wyeth v. Weeks), branded manufacturers can predict that they are not likely to face liability under existing case law in a number of states when the plaintiff took only a generic competitor's medication. But what happens when a plaintiff took branded medication originally, switched to its generic bioequivalent, and then suffered the alleged injury? Despite the growing number of courts rejecting "innovator liability," case law to date has not addressed this scenario, due in large part to the fact that the vast majority of decisions addressing "innovator liability" have focused on metoclopramide, a medication that has been available in generic form for decades. Nevertheless, an increasing number of widely prescribed drugs that have been embroiled in litigation have now lost their exclusivity or will soon do so. As a result, cases in which the plaintiff started on the branded drug and switched to the generic have already been filed, and more are likely in the near future. This is particularly true where the drug in question is often prescribed over an extended period of time, making it more likely for the plaintiff to have started on the branded version of the drug. 

As more companies enter the international market, attorneys often find themselves in situations where they are asked to represent or counsel clients that have been sued in foreign jurisdictions. The purpose of this article is to provide an overview of Canadian class action law and explain some of the key differences between Canadian and U.S. law and jurisprudence for those practitioners who represent clients that may be subject to jurisdiction in Canada.

A partner hands you a complaint that was recently filed against a client in state court. As the associate on the case, you walk through the initial steps: calculate the answer date, review the complaint for defenses that could be the basis for a motion to dismiss – i.e., statute of limitations, personal jurisdiction, etc.; calculate the removal date; and determine whether the case is removable to federal court.

Upon reviewing the complaint, you know that your client is not a citizen of the state where the lawsuit was filed, but it is not clear from the face of the complaint the citizenship of the other parties for purposes of diversity of citizenship. In addition, the state court pleading simply asks for over $25,000 in damages. As a result, it is impossible to determine whether the $75,000 threshold for the amount in controversy is satisfied. If you do not recommend removal within 30 days after service of the complaint, do you waive the right to remove the complaint? 

In Forrest Construction, Inc. v. The Cincinnati Insurance Co., No. 11-6262, 2013 U.S. App. LEXIS 722 (6th Cir.), the United States Court of Appeals for the Sixth Circuit held that an insurer breached its policy with an insured contractor when it declined to defend the contractor from a counterclaim for defective workmanship asserted by the contractor’s former customer. The case arose out of the contractor’s construction of a house for the customer. The contractor filed suit against the customer, following a dispute over the amount owed for the house. The customer counterclaimed, alleging there were defects in the workmanship of the house. In particular, the customer alleged there was a substantial amount of cracking in the foundation, which caused “a potentially deadly collapse of the residence.” Though the customer did not specifically allege that any particular subcontractors were responsible for the defective workmanship, the counterclaim broadly alleged that the contractor “recklessly performed, or caused to be performed” the defective work.

It has been said that cases are won or lost at the deposition stage of the civil litigation process. The deposition represents the one pre-trial opportunity to assess the opposing party's demeanor as well as their entire case on a face-to-face basis. Accordingly, the importance of the deposition can not be emphasized enough.

Yet, given that the deposition is such a routine event in a civil litigator's daily practice, the danger exists for dropping one's guard, not fully honoring the importance of the deposition, and running through the deposition in a robotic recitation of standard, common deposition questions.

Below are five common deposition mistakes that all attorneys may face at one time or another in their practice. Recognizing the potential for making these mistakes at a deposition may assist in avoiding their recurrence in the future.

Transforming rhetoric into reality is no easy task. Yet, the Consortium for Advancing Women Lawyers is meeting this challenge by providing a solid foundation for combining the power, drive, innovative thinking, problem solving skills and resources of thought leaders across the country in developing and accelerating initiatives to advance women lawyers. This article will provide an overview on the Consortium for Advancing Women Lawyers based on an interview with Linda Bray Chanow, the Executive Director of the Center for Women in Law at The University of Texas School of Law.

Over the years, housing discrimination has evolved throughout the United States and has recently contributed to the decline in our economy. The most recent form of housing discrimination is reverse redlining, the act "of targeting particular communities for abusive lending practices." Susan E. Hauser, Predatory Lending, Passive Judicial Activism, and the Duty to Decide, 86 N.C. L. Rev. 1501, 1509 n.39 (2008). Such abusive lending practices range from giving high cost adjustable rate mortgages and credit based on unfair terms, to incorporating illegal and fraudulent loan provisions. Social Investment Forum, Community Investing 1 (2011), http://ussif.org/projects/communityinvesting.cfm; S. Rep. No. 103-69, at 21 (1994), as reprinted in 1994 U.S.C.C.A.N. 1881, 1905. Subprime loans, which fall within this category of predatory lending practices, consists of higher priced loans made to borrowers who have less than prime credit records. Raymond H. Brescia, Subprime Communities, 2 Alb. Government L. Rev., 164, 179 (2009), available at http://ssrn.com/abstract=1337729. These loans, which charge borrowers above-market rates, are often targeted at the minority population. Id. at 166. Such practices have created a subprime crisis, an unwelcome contribution to the current economic state.

The Telephone Consumer Protection Act, 47 U.S.C. § 227 (TCPA), is a federal statute originally enacted to address concerns relating to telemarketing/solicitation practices. Most litigation these days revolves around the Act's prohibition of: (1) certain types of communications to cell phones without prior express consent of the called party; and (2) the sending of unsolicited fax advertisements unless certain statutory exceptions apply.

The Centers for Medicare and Medicaid Services (CMS) has released a new web-based portal allowing qualified users to perform online many conditional payment–related activities. Officially titled the Medicare Secondary Payer Recovery Portal (MSPRP), it launched in July 2012 and has the potential to improve the efficiency and expediency of certain aspects of CMS’ conditional payment procurement and dispute processes.

While the portal offers important advantages over CMS’ traditional process, there remain certain operational limitations that may dilute its overall effectiveness and, in some instances, may preclude its wide-scale usage by larger primary payers and other entities. Understanding the portal’s mechanics and current limitations is important to optimize the potential benefits of this new tool. 

It is the day two young people have been looking forward to all year. Rachel Berry and Finn Hudson are getting married. Their friends and family have gathered and the excitement is building. They are just waiting on one more person to arrive – Rachel's good friend, Quinn Fabray. Quinn is running late, but in her excitement and haste needed to let Rachel know she was on her way. She grabs her cell phone and sends her a text message. At that moment a vehicle slams into the side of Quinn's car, abruptly ending an otherwise typical episode of Glee.

Most litigators, defense and plaintiffs’ counsel alike, have become accustomed to the Twombly and Iqbal pleading requirements attendant to the allegations of a complaint. But many are not as familiar with whether the Twombly and Iqbal pleading requirements also apply to affirmative defenses raised in response to a complaint. And that necessarily begs the question: does the Twombly/Iqbal standard of pleading apply to defenses asserted in an Answer? As one federal magistrate judge explained, “neither the Fourth Circuit nor any other court of appeals has ruled on the question presented: whether Twomblyand Iqbal extended the federal pleading requirements to a defendant’s affirmative defenses.” Francisco v. Verizon South, Inc., No. 3:09cv737, 2010 U.S. Dist. LEXIS 77083, at *16 (E.D. Va. Jul. 29, 2010). In the absence of guidance from the U.S. Supreme Court or the circuit courts of appeal, the federal district courts have answered that question with varying results.

A recurring issue in the ERISA disability claims process is the weight to be given to determinations of disability made by the Social Security Administration.  Historically, ERISA plan administrators (and the courts) paid relatively little attention to the results of a participant's Social Security decision.  Just as the denial of Social Security benefits did not mandate the denial of a claim brought under an ERISA plan, the grant of such benefits likewise did not mandate the payment of ERISA disability benefits. 

"The best defense is a good offense" may be an adage once used to describe military strategy and now used in sports, but it applies just as well in the context of civil litigation. 

In the wake of Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), the 12(b)(6) motion has certainly taken center stage when it comes to answering complaints, however, the Federal Rules of Civil Procedure allow the crafty litigator approaches with well-crafted complaints that sufficiently and factually plead a claim for relief. 

For the past decade, policyholders and liability insurers have waged war across the country on the issue of whether and when CGL policies cover faulty workmanship claims.  While courts had traditionally declared that contract-based claims fall outside the traditional scope of liability insurance, during the past decade a growing number of states have recognized coverage for construction claims, especially where the owner’s damages go beyond the insured’s own work or product.  Furthermore, in states such as Colorado and South Carolina, state legislatures have responded to pro-insurer rulings by imposing statutory requirements for coverage in such cases.

Most legal malpractice policies contain a prohibition against admitting liability. This prohibition creates an inherent tension between a lawyer who believes his or her professional ethics requires him or her to disclose a professional omission and the loss of insurance coverage for that omission which would otherwise be available to make the client whole for any resulting losses from the omission. This tension was observed by the Illinois Appellate Court in Illinois State Bar Ass’n Mut. Ins. Co. v. Frank M. Greenfield & Associates, 2012 IL App. (1st) 110337, 366 Ill.Dec. 761, 980 N.E.2d 1120 (Ill. App. 1st Dist. 2012). In the Greenfield case, the lawyer made a mistake in drafting a client’s will that ultimately affected the distribution of funds from a trust established by the client. When the error was recognized, the attorney sent a letter to all of the trust beneficiaries reporting the mistake which, in turn, resulted in several of the beneficiaries receiving less money than they otherwise would have received had the client’s wishes been properly implemented.

Covert surveillance of personal injury claimants has undergone revolutionary changes since the days of VHS videotape. Now, more than ever, defense attorneys and claims professionals must be aware of the latest technology, methodology, social implications, and legal consequences of surveillance. From the reduced size and increased power and quality of cameras to the ability to transmit images and video instantaneously to remote locations, today’s technology provides a higher quality end product and more control over the surveillance process than ever before. That increased level of control brings the increased responsibility of ensuring that surveillance is ethical, efficient, and productive.

Picture this… you are on the balcony of high-rise under construction, getting ready to install an exterior light fixture. Placing your portable step ladder next to the balcony railing, you step up several rungs, rising untethered above the height of the railing. The view is great, but are you OSHA compliant?

Recently, confronted with "experts" in a personal injury case who advised that simply stepping onto a portable ladder removes a worker from their obligation to comply with fall protection requirements, I sought clarification. Is any fall protection required when you use a portable ladder, even if you are exposed to a fall far greater than the height of a ladder?

As we all know, recalls can be the most costly and damaging event in any manufacturer's corporate experience.  Not only do they cost a great deal to implement and resolve, but they can generate many new product liability cases and make all of them harder to defend.  In addition, they might even generate class-action lawsuits which can cost many millions of dollars to resolve. 

For a young associate, one of the most daunting and confusing parts of practice can be finding the right expert. The good news is that unless you practice exclusively in a highly particularized area of the law, the tools available to assist you in selecting the best expert are virtually limitless. The following article will provide an overview of several considerations that the young attorney should take into account when selecting an expert. As with most areas in the practice of law, being prepared is the paramount consideration and is key to the successful selection and utilization of an expert. 

In our society today, we face a bombardment of information, images, and stories about child safety. There are hundreds of websites and even more news stories devoted to safety and injury prevention related to products used by children and their parents. In their most recent safety report, Kids in Danger (2012) indicated that in 2010, more than 44 million units of child products were recalled; 430,000 child injuries were treated in hospital emergency rooms; and there were 118 deaths of children under the age of 15. Despite a significant decrease in child product recalls (i.e., there were 11.6 million products recalled in 2011), widely-available reports such as these, along with websites and databases for concerned parents – combined with a tarnished image of corporations and high profile cases throughout the United States – have heightened the public's awareness and increased companies' exposure to product liability lawsuits.

In the November 2012 issue of For The Defense, I published an article answering some of my favorite FAQs in the area of warnings. Since I was not able to answer all of the questions in one publication and new ones always seem to keep popping up, I thought I would continue my answers in this column.

Warnings continue to be an area of great concern. With some companies, virtually all of their litigation is based on failure to warn. These cases are fairly easy to bring, cheap to prosecute because an expert is not always needed, and sometimes hard to defend. 

Design professionals—specifically architects, engineers, land surveyors and landscape architects—often face claims arising long after their work has been completed. This can create significant problems in the defense of those cases, as memories fade and documents become scarcer as time passes. Many states have attempted to address this issue by instituting statutes of repose that preclude claims against design professionals after a specific period of time has elapsed. Some states, like New York, have been slower to adopt such statutes. However, recently proposed legislation seeks to bring New York in line with other jurisdictions and provide a definitive time frame for bringing such claims. These efforts, and the reasoning behind them, help crystallize the importance of such statutes.

When a party to a federal lawsuit dies, the next steps seem simple; a notice of death is filed, the next of kin makes a motion to substitute, and—assuming the claims are not extinguished by death—the case proceeds pursuant to Fed. R. Civ. Pro. 25(a) (Rule 25). This rule, however, is fraught with jurisdiction-specific procedural traps. First, a notice of death filed by the decedent’s attorney may not trigger the 90-day period. Second, the notice of death may need to be served upon a successor or representative of the decedent to begin the 90-day period. Third, a motion to substitute cannot be filed in the name of the decedent.

“The art of junk science is to brush away just enough detail to reach desired conclusions, while preserving enough to maintain an aura of authoritative science.”

Peter W. Huber, Galileo’s Revenge: Junk Science in the Courtroom, p. 157 (1991).

Daubert v. Merrill-Dow Pharms., Inc., 509 U.S. 579 (1993), and its progeny General Electric Co. v. Joiner, 522 U.S. 136 (1997) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), imposed significant limitations on the admissibility of expert testimony in federal court. The amendment of Rule 702 of the Federal Rules of Evidence in 2000 “codified” these decisions, and the analysis of the admissibility of technical, scientific, or other claimed expert evidence is now guided in all federal courts and in most state courts by these decisions and the amended Rule 702. If you are reading this, then you already know everything expressed in the foregoing two sentences. But you are probably interested in the more practical question of how the controlling law may be employed in product liability cases and other similar cases to actually achieve exclusion of opinion testimony that is not scientifically reliable. This article will serve as a guide for you in your future efforts.

A recent federal court opinion from Florida highlights the ramifications of settling parties’ failure to agree on the future medicals issue under MSP Act. If settling parties have not agreed on how to address the issue within the settlement release, they may not leave that issue open for the judiciary to address.  The resulting opinion underscores the importance of addressing the future medicals issue proactively, before mediation, as opposed to asking the judiciary to “fill in the gap” with its own interpretation of the parties’ intent. 

The words "Conditional Payment Reimbursement" strike fear in the trucking industry. OK, scratch that. Maybe not fear, but the issue induces insomnia for some. Everyone knows Medicare may collect double damages plus interest from parties when conditional payments are not reimbursed. But does this priority right of recovery apply evenly to past medical expenses as well as to future medical expenses? Does this priority right of recovery apply evenly to defendants as well as plaintiffs?

The past five years have seen a precipitous decline in the number of FINRA registered representatives and member firms. Notwithstanding this sharp reduction along with a decrease in the number of investor complaints, disciplinary actions filed and resolved by FINRA are at an all-time high. Indeed, the industry is seeing an increased number of investigations of matters that likely would not have received attention from regulators in the past. Moreover, the disciplinary actions and imposed sanctions reported by FINRA appear to be numerous and significant. Given this environment and in the context of a regulatory investigation, firms often inquire about the distinction between formal and informal actions and seek guidance on the remedies and enforcement options the regulators have available to them. Although a thorough analysis is beyond the reach of any one article, this article provides an overview of the process and available options.

Usually it is clear from the outset whether the plan at issue is governed by ERISA. But in some situations – for instance, where the plan is completely voluntary and the employee pays the premiums – there may be a dispute over whether the plan is exempt from ERISA under the "safe harbor exemption." Importantly, the safe harbor exemption cannot apply if the employer endorses the plan.

This article explores the type of information courts find persuasive when deciding endorsement. In other words, this article discusses what information you should have ready before moving for ERISA preemption.

Accommodating disabilities in the workplace can be a confusing enough process for employers. But if you have employees in one of 16 states or Washington, D.C., where state and local laws have legalized marijuana for medical purposes, you could be both dazed and confused about what to do.

Courts in some of the states are starting to provide a little guidance, but many employers are struggling with questions about whether to modify workplace policies, such as drug testing. Some sticky legal issues, including federal preemption of state laws, whether medical marijuana patients must be accommodated under state anti-discrimination acts, and whether a patient has a legal off-duty right to use medical marijuana, remain unresolved in many jurisdictions.

Many types of personal lines insurance policies provide coverage for individuals other than the named insured. Most often, additional insured coverage will be provided under automobile and homeowner's policies for "relatives" of the named insured, or "members" or "residents" of the named insured's household.

Many of us in the insurance and legal communities have confronted the most common scenarios of whether one qualifies as a "resident" of a household, including students away at college and family members enlisted in the military. Most of us are generally familiar with the factors employed by the courts in determining whether a person is a resident or member of the named insured's household. These factors focus on the intent of the putative additional insured and his or her family members.