LexisNexis Torts: Torts

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

David N. Nissenberg — Tue, 29 Apr 2008 20:36:37 GMT

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

Professor J. David Prince Update of Riegel v. Medtronic

J. David Prince — Wed, 23 Apr 2008 15:01:44 GMT

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

Levy on City of Santa Barbara v. Superior Court

Neil M. Levy — Tue, 15 Apr 2008 09:50:56 GMT

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

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

Margie Searcy Alford — Tue, 08 Apr 2008 18:35:59 GMT

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

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 — Mon, 17 Mar 2008 21:27:47 GMT

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

Raiter and Swanson on the Expanding Scope of the Cy Pres Doctrine and the Distribution of Unclaimed Settlement Funds

Shawn Raiter and Kelly Swanson — Mon, 17 Mar 2008 21:21:03 GMT

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

Levine on Insurance Coverage Implications of Lead-Tainted Product Recalls

Michael S. Levine — Mon, 17 Mar 2008 21:04:17 GMT

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

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 — Mon, 17 Mar 2008 20:57:00 GMT

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

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)

Fredric D. Bellamy and Mark E. Freeze — Mon, 17 Mar 2008 20:44:04 GMT

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

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)

Susan M. Brazas — Mon, 17 Mar 2008 20:26:15 GMT

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.

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)

Robert C. Clifford — Mon, 17 Mar 2008 19:59:19 GMT

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 This commentary, written by Joseph B. Michael Steenson, Margaret H.

Wilson on Attorneys' Fees Earned on a Contingency Basis in Class Action Lawsuits

James M. Wilson, Jr. — Mon, 17 Mar 2008 19:05:53 GMT
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

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)

Ronald W. Eades — Fri, 14 Mar 2008 21:51:21 GMT

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.