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Torts Law Center: Focus on Products Liability & Toxic Torts
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David N. Nissenberg on Hazmat Highways: Transporting Hazardous Materials on the Roadways and the Legal Issues that Arise when Spilled Materials Cause Fatalities and Injuries
Each day in there are more than 800,000 shipments of hazardous materials that are transported across highways by tractor-tailor rigs. On a single stretch of highway in Augusta County Virginia, 216,000 gallons of flammable liquid travel north and south on Interstate 81 every 60 minutes. The Deputy Chief of Augusta County Fire and Rescue put it succinctly: "Any interstate with the amount of material we've got going up an
By David N. Nissenberg
Nissenberg & Associates

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Professor J. David Prince Update of Riegel v. Medtronic
Professor J. David Prince analyzes the U.S. Supreme Court’s recent decision upholding federal preemption in Riegel v. Medtronic . The Court held that state-law tort claims against a manufacturer of an allegedly defective medical device, which had received premarket approval from the FDA, were preempted by the Medical Device Amendments of 1976. Reviewing the Court's ruling and discussing its
By J. David Prince
Professor of Law, William Mitchell College of Law; Of Counsel, Larson  King

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Levy on City of Santa Barbara v. Superior Court
In City of Santa Barbara v. Superior Court , 41 Cal. 4th 747, 62 Cal. Rptr. 3d 527 (Cal. 2007), the California Supreme Court held that an exculpatory clause did not shield a defendant from liability for gross negligence. The exculpatory clause did not contain explicit language waiving liability for gross negligence, but
By Neil M. Levy
Visiting Professor of Law, University of California at Berkeley, School of Law (Boalt Hall); Professor emeritus, Golden Gate University, School of Law

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Margie Searcy Alford on Statute of Limitations Problems and the Alabama Supreme Court's Landmark Adoption of the Discovery Rule for Toxic Tort Cases in Griffin v. Unocal Corp
For almost twenty-nine years, Alabama law dictated that the state's two-year statute of limitations for toxic torts cases ran from the date of last exposure to toxic substances. This "last exposure rule," as set forth in Garrett v. Raytheon Co. , 368 So. 2d 516, 520-521 (Ala. 1979), was frequently harsh on potential plaintiffs who did not show signs of injury or illness within the two years after their last exposure. In Griffin v. Unocal Corp. , the Alabama S
By Margie Searcy Alford
Attorney at Law

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Clifford on Storek v. Fidelity Guaranty Insurance Underwriters, Inc., 504 F. Supp. 2d 803 (N.D. Cal. 2007): Analyzing an Insurer's Duty to Defend Under California Law
Robert C. Clifford discusses the issues raised by the U.S. District Court in Storek v. Fidelity & Guaranty Insurance Underwriters, Inc., 504 F. Supp. 2d 803 (N.D. Cal. 2007) and the duty of an insurer to prov
By Robert C. Clifford
Attorney

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Raiter and Swanson on the Expanding Scope of the Cy Pres Doctrine and the Distribution of Unclaimed Settlement Funds
Class action settlement funds often have money remaining after class members have filed all their claims. Sometimes, these unclaimed funds can run into the millions of dollars. If the settlement agreement does not address how unused funds are to be distributed, the courts can rely on their general equity powers or on the Cy Pres doctrine, which permits a court to disburse funds in a way that most closely approximates the intended benefits of the class settlement. The courts' discretion under the
By Shawn Raiter and Kelly Swanson
Larson King, LLP

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Levine on Insurance Coverage Implications of Lead-Tainted Product Recalls
Michael S. Levine, a senior associate in the McLean, Virginia office of Hunton & Williams LLP, practices in the firm's insurance and reinsurance group. He discusses the recent rash of product recalls due to the presence of lead in the products, which has the potential to implicate multiple lines of insurance coverage, inclu
By Michael S. Levine
Senior Associate, Hunton & Williams LLP

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Webster on the Latest Ruling Addressing the Relationship Between Trade Associations and Product Liability: In re Welding Fume Litigation, 2007 U.S. Dist. LEXIS 80806 (N.D. Ohio October 30, 2007)
Hugh K. Webster, a partner in the Washington, DC law firm of Webster, Chamberlain & Bean, discusses the Northern District of Ohio's recent holding in In re Welding Fume Litigation that participation by a non-manufacturer's employees in an industry association, even on association committee's with a pro
By Hugh K. Webster
Partner, Webster, Chamberlain & Bean, Washington, D.C.

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Bellamy and Freeze on Data Base Security Breaches and Rulings in the TJX Cos. Retail Sec. Breach Litig., 2007 U.S. Dist. Lexis 92782 (D. Mass. Dec. 18, 2007)
Attorneys Frederic Bellamy and Mark Freeze of Steptoe & Johnson examine the ground-breaking TJX litigation in the U.S. District Court in Massachusetts involving the largest known data base security breach in history. The authors take particular note of the court's decisions on: (i) whether electronic data should be
By Fredric D. Bellamy and Mark E. Freeze

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Brazas on the Illinois Supreme Court's conflict of laws analyses in Townsend v. Sears, Roebuck & Co., 2007 III. LEXIS 1701 (Ill. 2007) and Barbara's Sales, Inc. v. Intel Corp., 2007 Ill. LEXIS 1698 (Ill. Nov. 29, 2007)
On November 29, 2007, the Illinois Supreme Court issued two opinions addressing, for the first time in many years, conflict of laws analysis. In this surprising reversal of the trial and appellate courts, the Townsend court applied Michigan law to a products liability case for severe injuries suffered by a child run over by a lawn mower. The significant differences in the remedies available under Michigan law, as compared to Illinois law, dealt a blow to the plaintiff's prospects upon remand. By Susan M. Brazas

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Clifford on California's Unfair Competition Law, the Federal Cigarette Labeling Act, and the California Supreme Court's Decision in In re Tobacco Cases II, 41 Cal. 4th 1257 (Cal. 2007)
In re Tobacco Cases II , 41 Cal. 4th 1257 (Cal. 2007) considered the issue of whether the Federal Cigarette Labeling Act (15 USCS § 1331 et seq.) preempted plaintiffs' Cal Bus & Prof Code § 17200 unfair competition lawsuit against certain cigarette manufacturers. Overruling Mangini v. R.J. Reynolds By Robert C. Clifford
Attorney

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McDonnell on the Statute of Limitations for Spoliation Claims as Discussed Babich v. River Oaks Toyota, 2007 Ill. App. LEXIS 1173 (Ill. App. Ct. 2007)
Where a product-liability count is barred by the statute of limitations, is a second count, alleging spoliation of evidence, also barred? This commentary, written by Joseph B. By Joseph B. McDonnell
Of Counsel, Greensfelder, Hemker & Gale, P.C.

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Steenson on the Pet Food Recall Litigation
The recall of approximately 60 million packets of pet food sold by Menu Foods, Inc. in March 2007 had staggering financial repercussions for Menu Foods and resulted in injury or death to thousands of dogs and cats. In the wake of the recall, a number of class action lawsuits were filed and have been consolidated in Federal Court in New Jersey. Professor Michael Steenson, Margaret H.
By Michael K. Steenson
Professor of Law, William Mitchell College of Law

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Wilson on Attorneys' Fees Earned on a Contingency Basis in Class Action Lawsuits
In late summer and early fall of 2007, a group of law professors submitted proposals to the American Bar Association's Committee on Ethics and Professional Responsibility aimed at rectifying what they assert are commonplace improprieties inherent in certain attorneys fee awards to plaintiffs' attorneys in class action lawsuits in which the fee is earned on a contingency basis
By James M. Wilson, Jr.
Partner, Chitwood Harley Harnes LLP, Atlanta, GA

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Eades on the South Carolina Supreme Court's Refusal to Recognize the Tort of Medical Battery in Linog v. Yampolsky, 2008 S.C. LEXIS 10 (S.C. 2008)
In Linog v. Yampolsky , 2008 S.C. LEXIS 10 (S.C. 2008), the South Carolina Supreme Court held that South Carolina does not recognize the tort of medical battery, even in situations where plaintiffs claim they did not consent to a particular procedure. The plaintiff in a medical malpractice claim must prove negligence. The evidence must show that the health care provider departed from the recognized and generally accepted standards of care. By Ronald W. Eades
Professor of Law, Louis D. Brandeis School of Law, University of Louisville

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Eades on the Kentucky Supreme Court's Discussion of Various Personal Injury Issues in Steel Techs., Inc. v. Congleton, 2007 Ky. LEXIS 125 (Ky. 2007)
In Steel Techs., Inc. v. Congleton, 2007 Ky. LEXIS 125 (Ky. 2007), the Kentucky Supreme Court weighed in on three key issues that many of the state's personal injury litigators often confront. First, the Court confirmed that the state's impact requirement for negligent emotional distress claims remains valid, but, significantly, it also suggested that it may jetison the requirement in the near future. Second, the Court set clear guidelines for preserving a claim of error regarding the insuffi
By Ronald W. Eades
Professor of Law, Louis D. Brandeis School of Law, University of Louisville

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Eades on the Kentucky Supreme Court's Evidentiary Rulings Pertaining to Intentional Trespass in Smith v. Carbide & Chems. Corp., 226 S.W.3d 52 (Ky. 2007)
In Smith v. Carbide & Chems. Corp. , 226 S.W.3d 52 (Ky. 2007), the Kentucky Supreme Court responded to two certified questions from the U.S. Sixth Circuit Court of Appeals on matters of state tort law concerning intentional trespass. The Supreme Court held that proof of actual harm is not required to state a claim for an intentional trespass, and that plaintiffs alleging such a claim can recover damages for diminution in their property values. However, to recover such damages, pla
By Ronald W. Eades
Professor of Law, Louis D. Brandeis School of Law, University of Louisville

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Clifford on the California Supreme Court's Discussion of the Genuine Dispute Doctrine and an Insurer's Duty to Fully Investigate in Wilson v. 21st Century Ins. Co., 2007 Cal. LEXIS 13314 (Cal. 2007)
Robert C. Clifford discusses the issues raised by the California Supreme Court's decision in Wilson v. 21st Century Ins. Co. , 2007 Cal. LEXIS 13314 (Cal. 2007) in this commentary. Although this case in
By Robert C. Clifford
Attorney

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Wilson on the Rise of The Use of Regression Analysis in Class Action Litigation
Since the Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals , multiple regression analysis is being used increasingly to present economic proof in civil lawsuits. In describing the use of regression analysis in class action trials, James M. Wilson, Jr. writes:

By James M. Wilson, Jr.
Partner, Chitwood Harley Harnes LLP, Atlanta, GA

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Nissenberg on Big Rig Underride Crashes
The image of a passenger car being trapped under a large commercial truck is one of the most horrifying scenes on America's roadways. These "underride crashes" occur when a car collides with and slides under the rear, side, or front of a truck. While statistics show that close to 80% of all underride crashes occur with the front (60%) or side (20%) of the truck, there are no federal safety regulations on front or side underride crashes. Surprisingly, federal regulations only establi
By David N. Nissenberg
Nissenberg & Associates

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Nissenberg on Hauling Hidden Dangers on Our Roadways
Coping with busy traffic, careless drivers, and the occasional outbursts of Mother Nature should be sufficient distractions for drivers on our nation's roadways. However, also confronting drivers on an ever-increasing frequency are hidden dangers from large commercial vehicles. These dangers are often the result of deficiencies in the installation, inspection, or maintenance of truck parts, or from truck loads that are improperly secured for transport. Truck-accident litigation expert David <
By David N. Nissenberg
Nissenberg & Associates

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Nissenberg on Trucking in Adverse Weather Conditions
David Nissenberg, a leading expert and author in the field of truck accident litigation, reviews the practical, legal, and technological issues arising in connection with driving large commercial vehicles in adverse weather conditions. His commentary discusses various weather conditions giving rise to large-truck accidents and ensuing litigation, the legal responsibilities
By David N. Nissenberg
Nissenberg & Associates

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Wilson on Class Certification Trends: Non-Injury Class Actions and Issue Certification
In September 2006, the federal district court for the Eastern District of New York certified a $200 billion national class action lawsuit made up of tens of millions of smokers of "light" cigarettes, alleging that health-conscious smokers relied on these terms to buy what they thought was a safer product. James
By James M. Wilson, Jr.
Partner, Chitwood Harley Harnes LLP, Atlanta, GA

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Carboy on Tainted Toys from China: Keeping Products Liability Litigation Inside U.S. Borders
The year 2007 will long be remembered as the year of the Chinese toy recall, as millions of toys from the People's Republic of China were pulled from the shelves of U.S. retailers when it was discovered the imports were contaminated with lead paint or other powerful toxins. For product liability attorneys, the difficulties began immediately when they learned of virtually insurmountable barriers to reaching Chinese defendants through the courts in China. Not only
By Andrew J. Carboy
Member, Sullivan Papain Block McGrath & Cannavo PC

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Clifford on Insurance Coverage Implications of the United States Supreme Court's Decision in Massachusetts v. EPA, 127 S. Ct. 1438 (U.S. 2007)
In Massachusetts v. EPA , 127 S. Ct. 1438 (U.S. 2007), the U.S. Supreme Court held that the Clean Air Act authorized the Environmental Protection Agency (EPA) to regulate greenhouse gas emissions from new motor vehicles—despite the EPA's contrary claim—and that Massachusetts had standing to challenge the EPA's denial of a rulemaking petition to promulgate such regulations. The case appears to have exposed many businesses to potential liability for personal injuries and pro
By Robert C. Clifford
Attorney

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Eades on the Mississippi Supreme Court's Overturning of a $15.5 Million Toxic Tort Jury Verdict Due to Erroneous Admission of Evidence in E.I. du Pont v. Strong, 2007 Miss. LEXIS 574 (Miss. 2007)
In E. I. du Pont de Nemours & Co. v. Strong, 2007 Miss. LEXIS 574 (Miss. 2007), the Mississippi Supreme Court reversed and remanded a $15.5 million jury award in a toxic tort case due to the trial court's erroneous admission of certain prejudicial, irrelevant and speculative evidence. Ronald W. Eades, Professor of Law at the Louis D. Brandeis School of Law at the University of Louisville, discusses those evidentiary rulings and provides related practice tips in By Ronald W. Eades
Professor of Law, Louis D. Brandeis School of Law, University of Louisville

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Eades on the Kentucky Supreme Court's Strict Privity Requirements in Compex Int'l Co. v. Taylor, 209 S.W.3d 462 (Ky. 2006)
In Compex Int'l Co. v. Taylor , 209 S.W.3d 462 (Ky. 2006), the Kentucky Supreme Court places the state in the minority with regard to privity requirements for breach of the implied warranty of merchantability, and its apparent inconsistency with the state’s other products liability statutes. Ronald W. Eades, Professor of Law at the Louis D. Brandeis School of Law, University of Louisville, discusses this case in By Ronald W. Eades
Professor of Law, Louis D. Brandeis School of Law, University of Louisville

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Steenson on the M