TRIAL.COM's blawg of litigation management news, clippings, pointers to news reports and articles, and views of interest on issues and developments in the legal market.
Monday, April 12, 2010
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Friday, March 26, 2010
GOODELL, DEVRIES, LEECH & DANN, LLP OBTAINS AFFIRMANCE OF SUMMARY JUDGMENT FOR PHYSICIAN CONSULTANT Goodell, DeVries, Leech & Dann attorneys Donald L. DeVries, Jr., Kelly Hughes Iverson, and K. Nichole Nesbitt obtained the affirmance from the District of Columbia Court of Appeals of an entry of summary judgment on behalf of Washington Hospital Center and one of its physicians in a multi-million dollar medical malpractice action pending in the District of Columbia. The case, Gilbert, et al., v. Washington Hospital Center Corporation, et al., (D.C. Appeal No. 07-CV-000315), asserted that Ilyaas Gilbert was born with severe neurologic injuries after his mother experienced a rupture of her uterus in labor in an attempt to have a vaginal birth after having two previous cesarean section deliveries. In addition to suing the midwives who provided the mother's prenatal care, the plaintiffs sued a physician with whom one of the midwives consulted about the plan of care prior to her delivery. Granting summary judgment, the Superior Court for the District of Columbia determined that the physician owed no duty to the mother, as he had no physician-patient relationship with her. The Court of Appeals affirmed.
The plaintiffs asserted that the mother, Saara Abdul-Haqq, was an inappropriate candidate for vaginal birth in light of her two prior cesarean sections and that she was not given appropriate information concerning her risks. Although all of her prenatal care was provided by certified nurse midwives employed by a non-profit birthing center, one of the midwives consulted with the defendant physician on one occasion approximately 5 weeks before Ms. Abdul-Haqq's delivery.
The plaintiffs pointed to a memorandum of understanding between the birthing center and Washington Hospital Center, which provided a system for "medical consultation and backup OB/GYN services" and called for the defendant physician to provide informal consultation to the midwives, collaborate with them where appropriate, and accept the transfer of patients who had complications beyond the expertise of the midwives. The plaintiffs argued that Ms. Abdul-Haqq was a complicated patient by virtue of her prior cesarean sections and that the physician owed a duty to Ms. Abdul-Haqq to instruct the midwives and, if necessary, the patient herself, that she was not an appropriate candidate for vaginal delivery.
The defense argued that the brief consultation between the physician and Ms. Abdul-Haqq's treating midwife did not give rise to a duty because the physician never treated, evaluated, spoke with, saw, or met Ms. Abdul-Haqq, but rather simply provided his advice – which the midwives were free to accept or reject – during a less than 10-minute discussion. The defense further argued that the midwives were capable of caring for the patient, that her history of prior cesarean sections did not make her a "complicated" patient beyond the competence of the midwives, and that the physician had no duty under the memorandum of understanding to intervene in the patient's care when the midwives did not seek to transfer the patient to him.
The Court of Appeals affirmed the lower court's entry of summary judgment, holding that the consulting physician had no duty to "take charge" of Ms. Abdul-Haqq's treatment, noting that the midwives were "independent practitioners fully qualified to act in these circumstances" and that the physician "did not become in practical terms the ultimate decision-maker" in the patient's care.
Saturday, March 20, 2010
CORR CRONIN VICTORY FOR OREGON LNG: JUDGE ORDERS PORT OF ASTORIA TO RENEW LEASE Oregon LNG Threatens to Seek Millions in Damages U.S. District Court Judge Michael Mosman has ordered the Port of Astoria to renew its lease on the Oregon LNG site in Warrenton. Peter Hansen, CEO of the liquefied natural gas development company Oregon LNG, is trumpeting the ruling as a nail in the coffin for the Port, which has been resisting a 30-year lease renewal since early last year. Kelly Corr of Corr Cronin Michelson Baumgardner & Preece, on behalf of Oregon LNG, filed a breach of contract lawsuit against the Port of Astoria last year, attempting to force the agency to sign a 30-year renewal of the master lease at the LNG project site on Warrenton's Skipanon Peninsula. The Port leases the land from the state and subleases it to Oregon LNG.
After the ruling, Kelly Corr sent a letter to the Port's attorney putting the agency on notice that the company plans to file a motion for civil contempt against the Port and its commissioners unless they immediately renew the master lease. "To be clear," he wrote, "we are going to seek substantial daily dollar fines against both the Port and each individual commissioner until they comply."
Oregon LNG CEO Peter Hansen said his company has spent more than $500,000 in attorney fees on the breach of contract suit and will be asking the Port to repay that money in addition to millions of dollars in damages. "The longer the Port waits, the greater the damages will be," he said. "They've known all along they were wrong. Now they certainly know it. Two judges have told them it's time to stop this charade and get it done."
DEUTSCH KERRIGAN & STILES GETS "NO MAS" VICTORY ON FIFTH DAY OF JURY TRIAL Jerry Glas and Kelly Theard of Deutsch, Kerrigan & Stiles, obtained a rare voluntary dismissal with prejudice on the fifth day of a jury trial in Civil District Court for the Parish of Orleans. Glas and Theard represented National Union Fire Insurance Company of Pittsburgh, which was the excess insurer for Briggs Equipment Company. Plaintiff was a 49 year-old legal secretary who was driving to see her psychiatrist on July 30, 2003, when her car was rear-ended. Defendants stipulated to responsibility for causing the accident, but contested whether the accident caused any injury. Plaintiff complained of confusion, stuttering, memory loss, and problems with her higher cognitive functioning. She stopped working, and joined the Acquired Brain Injury Survivor's Group. At 7:00 p.m. on the Friday before trial, plaintiff settled with the insured and its primary insurer, but reserved her right to proceed to trial against National Union, which steadfastly refused to pay her anything. Trial commenced on Monday, and Glas cross-examined plaintiff for four hours on Tuesday.
By Thursday night, the plaintiff was writing "May God forgive them" on sticky notes which she posted on the edge of counsel's table. Then, on Friday morning, with the jury in the hallway and the plaintiff noticeably absent, opposing counsel told the court that his client did not wish to attend another day of trial or to discuss this matter with him ever again. The court accepted the voluntary dismissal with prejudice, and a surprised representative for Chartis Insurance Company flew home to New York, but not before one casual observer (Bob Kerrigan) told her: "It is a great result, but it is not a win."
NIXON PEABODY'S PARIS OFFICE AWARDED THE SILVER AWARD FOR BEST INTERNATIONAL FIRM IN FRANCE Nixon Peabody's Paris office has just been awarded the Silver Award from the French Legal Press for the best "International Firm" in France for 2009.
The Silver Award is a prestigious honor bestowed upon leaders in the legal industry every two years by the Paris Bar, the Leaders League, and Decideurs, the preeminent legal magazine in France. According to the selection panel, which is comprised of eight general counsels of international companies based in France, our Paris office earned high marks for its leading, full-service advisory practice -- the only newcomer in recent years to have both a strong international and national flavor.
Nixon Peabody's Paris team includes more than 30 lawyers who practice in a wide range of industries, including international business, tax, intellectual property, finance, technology, labor law, litigation, public law, and real estate.
The case involved an aerial lift manufactured by Terex and purchased by end supply manufacturer DUECO, which attached the lift to a truck pursuant to design specifications of Richmond Power & Light in Richmond, Indiana. After a Richmond Power & Light employee fell out of the bucket truck and was rendered a quadriplegic, he sued DUECO and Terex for his injuries. DUECO settled the claims against it and filed a $1.4 million cross-claim against Terex. Terex moved for summary judgment on DUECO's cross-claim which was granted on DUECO's claims for contractual and common law indemnity. This judgment was affirmed by the Indiana Court of Appeals. A fact question remained, however, as to whether Terex had breached an alleged obligation to purchase insurance, as claimed by DUECO.
DUECO contended that Terex was contractually obligated to procure insurance with Vendor's coverage, and that Terex breached its contract with DUECO by not doing so. The contract required Terex to obtain "a Vendor's Endorsement" "if generally available." Terex was self insured for product liabilities up to a particular threshold. A general liability policy excluded product liability but contained a Vendor's Endorsement. Terex's excess coverage covered product liability but contained no Vendor's Endorsement. Dueco contended that Terex breached its obligations by self-insuring a portion of its products liability risk and by not obtaining a Vendor's Endorsement on its excess policy.
DUECO also contended that a policy of insurance issued to a different entity acquired by Terex prior to the incident afforded coverage to DUECO by way of a Vendor's Endorsement attached to that policy. Terex showed that a Vendor's Endorsement was unavailable in each case; that the policy issued to the predecessor entity had been canceled as of the date of injury; and that even if a Vendor's Endorsement was "generally available," DUECO's modifications to the Terex product rendered the Vendor's coverage inapplicable. Terex also argued that DUECO's claim for $1.4 million was outside the coverage of any commercially issued policy of insurance because DUECO's $1.4 million claim was within the threshold of the Terex self-insurance program.
NATCHEZ, Miss. - A federal jury in Natchez, Mississippi has found that Mississippi plaintiffs' attorneys William Guy and Thomas Brock committed fraud and breached the duty of good faith and fair dealing in asbestos claims they filed against Illinois Central Railroad. The March 8 ruling in the U.S. District Court for the Southern District of Mississippi found that the two attorneys had fraudulently filed lawsuits on behalf of two individuals who already had received compensation for asbestos-related injuries in a previous lawsuit.
The jury found that the firm of Guy & Brock of McComb, Miss., submitted fraudulent information to the railroad to conceal their clients' involvement in the earlier case, which would have barred their clients' more recent claims against Illinois Central. (Turner Complaint & Harried Complaint) The jury awarded Illinois Central full repayment of the $210,000 paid on those earlier claims plus an additional $210,000 in punitive damages.
"Illinois Central is pleased that a Mississippi federal jury held these plaintiffs' lawyers liable for fraud in asbestos claims against us," said Karen Phillips, Vice President of Public and Government Affairs for Illinois Central. "Our company will continue to aggressively pursue all suspected fraud or litigation abuses."
The jury found that Mr. Guy and Mr. Brock made false statements to Illinois Central by failing to disclose the previous involvement of their clients, Willie Harried and Warren Turner, Jr., in a mass tort claim for asbestos-related injuries originally filed in 1995 in Jefferson County, Miss. That case, Cosey v. E.D. Bullard Co., resulted in a massive plaintiff verdict and was widely considered a driving factor that led to tort reforms in Mississippi.
Illinois Central entered into a settlement agreement with the Guy & Brock firm in 2002, leading to Mr. Harried and Mr. Turner receiving $90,000 and $120,000, respectively. In the recent trial, both Mr. Harried and Mr. Turner stated that the plaintiffs' attorneys were clearly aware of their earlier involvement and financial settlements in the Cosey case.
"Fraud and abuse remain a significant issue in asbestos and toxic tort litigation," says Danny Mulholland of Forman Perry Watkins Krutz & Tardy, attorney for Illinois Central. "Attempts to game the justice system are deplorable, and we will continue to vigorously represent our clients in their efforts to uncover fraud."
Illinois Central was represented by Danny Mulholland and Tanya Ellis in Forman Perry's Jackson, Miss. office.
Monday, February 22, 2010
BEIRNE, MAYNARD & PARSONS SECURES FIFTH CIRCUIT VICTORY FOR CHARTIS Beirne, Maynard & Parsons has won another decision in a coverage case for Chartis before the U.S. Fifth Circuit Court of Appeals. On February 10, 2010, the Fifth Circuit issued its opinion in US Bank, National Association v. National Union Fire Insurance Company of Pittsburgh, PA; Docket No. 08-20401. The decision affirms a U.S. District Court summary judgment (also secured by BMP). The Fifth Circuit Court held that, where a bankruptcy court ordered a former executive to pay back millions of dollars in severance payments, reimbursement of those payments was not a "Loss" under National Union's Executive and Organization Liability Insurance Policy. The Court determined the bankruptcy court judgment was restitutionary in nature, it was uninsurable under Texas law, and it did not present a covered "Loss" as that term was defined in National Union's policy.
SNELL & WILMER OBTAINS DEFENSE VERDICT IN LAND ROVER ROLLOVER SUIT Snell & Wilmer attorneys Vaughn Crawford and Lee Mickus obtained a defense verdict for Land Rover after a seven-week trial in the District Court for Broward County, Florida. This product liability lawsuit followed Jeanne Luckey's crash of her 2004 Land Rover Discovery Series II vehicle, during which Ms. Luckey fractured her spine and was rendered quadriplegic.
Plaintiffs alleged that the 2004 Land Rover Discovery Series II vehicle did not provide sufficient protection to occupants in the event of a foreseeable rollover crash. In particular, Plaintiffs asserted that the roof structure could not resist the forces involved in a rollover, that a roof rack used on the 2004 Discovery Series II causes the roof panel to fold into the occupant compartment, and that the seat belts do not adequately restrain occupants within their survival space. During closing argument, Plaintiffs' lawyers asked the jury to award her and her family more than $120 million to compensate for their medical expenses, pain and suffering, and loss of support.
The Snell & Wilmer defense team presented evidence that the 2004 Land Rover Discovery Series II vehicle performed well in roof and seat belt tests used widely in the auto industry, and that Land Rover's internal engineers thoroughly assessed its crashworthiness prior to production. The team also established that Plaintiff's crash, which involved 4.5 rolls, was an extraordinarily violent event involving a huge amount of energy. It was the severity of the crash, and not any deficiency in the vehicle, that produced Plaintiff's injuries.
The six-person jury returned a unanimous verdict in favor of Land Rover on all claims after deliberating for only about two hours.
Thursday, February 18, 2010
BINGHAM ENVIRONMENTAL LITIGATORS RECOGNIZED FOR 2009 DEFENSE VERDICTS This month the Daily Journal recognized two Bingham McCutchen environmental litigation teams for their exceptional litigation work and notable wins in 2009.
Partners Jim Dragna, Colin West and Tom Hixson were named to the Daily Journal's Top 10 Defense Verdicts list for their successful defense of the Metropolitan Water District and a group of 12 additional Southern California-based water contractors in a lawsuit brought by a coalition of Northern California water agencies that could have changed the manner in which the California water agencies buy and sell power under the State Water Project. The lawsuit had sought hundreds of millions of dollars in damages for numerous alleged breaches of statewide water supply contracts, as well as an order changing the manner in which the contracts would prospectively be administered. After a two-month trial in California Superior Court in Sacramento, the court ruled in favor of the defendants. Click here to read more.
Partners Michael Sherman and Tiffany Hedgpeth were also named to the Daily Journal’s Top 10 Defense Verdicts list for their work in United States v. Eastern Municipal Water District. The case involved the rights and responsibilities of various parties with respect to the waters of the Santa Margarita River, one of the last free-flowing rivers in Southern California. Click here to read more.
Tuesday, February 16, 2010
LEADING FINANCIAL SERVICES LAWYER J. MICHAEL McINTOSH JOINS BLAKES Blake, Cassels & Graydon LLP (Blakes), one of Canada's leading business law firms, today announced that J. Michael McIntosh has joined the Financial Services Group as a Partner in the Calgary office.
"Mike is recognized as one of the leading financial services practitioners in Western Canada," said Brock Gibson, the Firm's Chair. "He has extensive national and international experience and will be invaluable to our clients. Having Mike at Blakes, further solidifies our position of having Canada's pre-eminent Financial Services Group. It is with great pleasure that I welcome him to our Firm."
Mr. McIntosh's practice focuses on banking, acquisition finance, structured finance and project finance. Mr. McIntosh also has considerable experience in all phases of corporate and commercial acquisitions and regularly advises on cross-border financings. Recent transactions have included major acquisition financings, private placements, major construction financings and cross-border structured financings. Additionally, Mr. McIntosh has been involved in financings of oil sands projects, coal bed methane development, conventional oil and gas reserves, petrochemical plants, pipelines, mining assets and power generating assets.
Thursday, February 04, 2010
SUSAN PRESTON OF GOODELL, DEVRIES, LEECH & DANN FEATURED ON THE COVER OF MARYLAND SUPER LAWYERS -- ONE OF THIRTEEN GDLD ATTORNEYS RECOGNIZED AS MARYLAND SUPERLAWYERS AND RISING STARS FOR 2010 Susan T. Preston of Goodell, DeVries, Leech & Dann was featured on the cover of the 2010 Maryland Super Lawyer magazine. In the cover story, Susan's peers compliment her as a top medical malpractice defense attorney who combines an extraordinary level of medical knowledge and preparedness with a cool temperament. This is the fourth consecutive year Ms. Preston ranks as one of Maryland’s Top 25 Women and Top 50 Super Lawyers. Click here to see the full article.
Additionally, 13 of the firm's attorneys are being recognized as Maryland Super Lawyers and Rising Stars for 2010. Two GDLD partners rank in the Top 10 Super Lawyers in Maryland: Donald L. DeVries, Jr. (for a fourth consecutive year) and Craig B. Merkle earn this 2010 honor. Along with Susan T. Preston, Linda S. Woolf is also hailed as one of the Top 25 Women Super Lawyers and Top 50 Super Lawyers in Maryland.
Tuesday, February 02, 2010
BINGHAM'S NUCLEAR WEAPON BY STAN SINBERG SOUTHERN CALIFORNIA SUPER LAWYERS, FEB. 2010
How Marshall Grossman parlayed a $5 overcharge into a powerhouse career
Published in Southern California Super Lawyers 2010 - February 2010
There are few things Marshall Grossman, lawyer, loves more than settling.
"It's in everyone's best interest to settle cases consensually. You accomplish more of the client's objectives than you ever can in a verdict," says Grossman the lawyer, who has favorably settled civil cases involving Al Davis and the Los Angeles Raiders, Grupo Televisa S.A.B., Packard Bell and many others. His method? "I try to identify the critical points of leverage early on, and squeeze as hard as I can, to inflict the greatest amount of desire for the other side to resolve the case."
In one of his landmark victories from the '80s, Guess Jeans sued Jordache for fraud and "ground them to dust." Grossman says the dispute between the parties was so heated that settlement was impossible until five years of litigation in California, Delaware and Hong Kong had exhausted them. His clients in the "high-end shmatte business" skipped out on paying his agreed-upon bonus. (Grossman sued and eventually got paid.)
But when it comes to his personal life, Grossman the person might take issue with settling an upset stomach. He knows just what he wants, and he usually gets it.
That tendency might be genetic. His parents moved from Omaha, Neb., to California when Grossman was 4, when his father Lee was named director of the Hollywood USO during World War II. "We found an apartment in the Park La Brea complex, but they wouldn't rent to us because we were Jewish." Rather than settle for somewhere else, Lee called a higher-up in Washington, D.C., and complained that he was sent here to serve his country and they'd better do something. The Grossmans moved in. Still, this display of anti-Semitism had a profound impact on young Marshall. "It's one of the first things I remember," he says.
Partly on account of his parents remaining active with the Omaha Friendship Club, Grossman says he grew up with Midwestern values, which he describes as "A person's word being their bond, promises you can take to the bank, a lack of necessity of confirming everything in writing, and dealing with people on a neighborly basis unless they prove unworthy of it."
Grossman knew he was "meant" to be a lawyer. His uncle Irvin Stalmaster, after all, was the youngest person ever to serve on the Nebraska Supreme Court, when he received an interim appointment from the governor at 29, and Marshall grew up with a respect for the law's majesty. So after two and a half years at UCLA, he applied to USC, which had an accelerated "2/4" program - allowing students to enter a four-year law school program after only two years as an undergrad. Grossman admittedly wasn't qualified due to his middling grade-point average and his "poor experience" on the LSAT, so he visited USC's dean and convinced him to admit him.
Starting in his second year at UCLA, Grossman spent the summers selling encyclopedias for Collier's door-to-door. He was one of the top salesmen in the company, averaging $1,000 per week. He enjoyed it, he says, despite "warnings" on doors like "We shoot every third door-to-door salesman and the second one just left." Within one year he was supervising sales groups in Nevada, Southern California and Utah.
After completing his first year of law school, Collier's asked him to take a full-time position "running" Northern California. Grossman agreed to take off a year and do it. But after the summer, two weeks into the fall semester, the regional vice president asked him to take over Vancouver, Canada. Grossman declined. Instead, he called the chairman of the board to tell him he was returning to law school. The chairman asked Grossman to meet him in St. Louis, because "from now on, you're on my personal payroll."
Grossman was promptly put in charge of New York state, and rented apartments in Greenwich Village and Buffalo. While living in Greenwich Village, family friends gave Grossman the phone number of their niece in Los Angeles. When he returned West months later, he called. He married Marlene in 1962. And while Grossman-person may not settle, he settles in. "I've basically had one law firm, one wife and one house my entire adult life," he quips. But two offspring.
As his year commitment ended, Collier's asked him to stay on. Instead, Grossman went to Europe and Russia for six weeks, before returning to law school. Midway through his final year at USC, Collier's called again, and offered him a permanent position. In exchange for running the western one-third of their U.S. offices, they'd pay him $150,000. Against a commission. In 1961 dollars. To a 22-year-old. Committed to law, he turned it down.
Not that he had another job lined up. During his third year of law school, he looked for a suitable law firm position but back then the major law firms in Los Angeles weren't hiring Jews. And the predominantly Jewish law firms were too large for Grossman's taste. "They all had 15 to 20 lawyers, and I felt I'd be lost there."
Grossman's requirements were a wee bit specific: "I wanted a small firm with a quality practice with lawyers of great reputation with a litigation capacity where I'd be mentored and end up leading the firm." He found a perfect fit with a Beverly Hills firm with about half a dozen attorneys - except for one problem. "They told me they had no work [for an additional lawyer]." So Grossman employed the same strategy that had talked him into law school. "I told them, 'You have to plan for the future. You won't make a mistake if you hire me.'" Grossman was employed, but had nothing to do. Since part of his plan included being mentored, he tucked himself under the wing of the firm's star litigator, Daniel Weber, following him to depositions and trials. "I watched, I listened, I absorbed." Unfortunately Weber left after a year. Suddenly, Grossman found himself in charge of the litigation department, but there wasn't much litigation. He had to figure out how to create business.
Grossman found his client one day while looking in the mirror. A couple of years earlier, back in Chicago, he'd signed up for a lifetime membership in the Playboy Club for $25 (that's not a misprint). Included in that membership was entry into the forthcoming Los Angeles facility. Now he received a notice that members could no longer put charges on their Playboy card unless they paid an annual $5 account maintenance charge (not a misprint, either). After the letter he wrote asking Playboy to reconsider the change failed, Grossman figured that many of the Playboy Club's almost half-million members would be similarly outraged, so he went to his firm's other attorneys, and asked if they would object to his filing a class action.
At the time, California didn't generally recognize consumer class actions but attorneys gave him permission to pursue the matter on his own time. "As long as it doesn't interfere with the business we don't have," Grossman jokes. His suit charged Playboy with a violation of the California Corporate Securities Law, on the grounds that his $25 was being used to finance the building of the LA club. While the settlement might seem modest - all members of the Playboy Club received an $8 credit and the $5 charge was abolished, Grossman points out that it amounted to "100 percent recovery." More significantly, it was the first successful consumer class action in California to reach a verdict or settlement. Newsweek profiled Grossman and the case, citing Grossman as a "hustling 29-year-old lawyer," and class actions started flooding into the office.
One class action case that came in was one of the most notorious securities fraud cases of the '70s. Equity Funding Corporation of America was a financial services company with a life insurance subsidiary that resold its policies to reinsurers.
Amazingly, most of those resold policies were fraudulent, created out of whole cloth. When the scandal broke in April '73, more than 100 class action lawsuits were filed. Eventually they were all consolidated, and Grossman was named lead counsel.
The result was the largest civil securities fraud settlement in history: more than $60 million in cash in class actions, $100 million in stock in reorganization proceedings, and the liquidation of the insurance subsidiary. For other 36-year-old attorneys, this would be something to build a career around.
But Grossman decided he didn't want to file class actions anymore. Henceforth, he would represent defendants. That he has, representing Arthur Andersen, American International Group Inc., Apple, Blockbuster, and many more. During this time, Grossman learned the advantages of keeping his legal team small.
Because he considers taking depositions so critical, he tries to personally conduct every significant deposition on cases he's handling. That allows him to envision the trial from the very beginning - and helps him attain the leverage he seeks to gain a favorable settlement.
On his trip to the Soviet Union in 1961, Grossman befriended an engineer named Joseph, who warned him of the dire situation for Jews under the Soviet regime. Later, back in the U.S., the attorney read about an "engineer named Joseph" who was executed for consorting with foreigners. "I don't know if it's the same person, but that seared in my mind the need to do something." Grossman and Marlene returned to Russia in 1976, and met with Soviet refuseniks. During that period he also co-founded an organization, Concerned Citizens for Soviet Jewry. In 1984, he accompanied Jane Fonda to Russia, who'd taken up the cause of Ida Nudel, the most prominent woman protesting the plight of Soviet Jews, who was held in internal exile. Nudel was eventually released.
On a related front, Grossman is involved working pro bono to help Agudas Chasidei Chabad - an Orthodox Jewish organization - recover religious texts dating back to the 1700s that were seized during the Bolshevik Revolution and Second World War by the Russian Federation.
Grossman's had his share of celebrity cases as well, counseling J.K. Rowling, Steven Spielberg, Clint Eastwood, Mariah Carey and Larry King. Before the O.J. Simpson murder trial, a confidant of Simpson asked Grossman to handle expert witness work. He declined, but recommended a lawyer who should handle the entire case: Johnnie Cochran.
One early celebrity case involved Liberace and his long-time chauffeur/lover Scott Thorson. When the couple split, Thorson sued for half of Liberace's assets. "It was really the first gay palimony lawsuit," Grossman says. As Liberace hadn't officially "come out," Grossman didn't want to put him on the stand. Instead, during the deposition, he asked Thorson, "Is it your testimony that in exchange for sex, Liberace promised to give you half his assets?" Thorson responded, "Yes." Grossman then won a summary judgment for dismissal on the grounds that it was an illegal contract for prostitution.
A "ripped from today's Web gossip" client is Erin Andrews, the ESPN sidelines sportscaster whose surreptitiously taken nude video in her hotel room was, for several days, the most searched for item on the Internet. Grossman has been involved in tracking down the perpetrator and barring hundreds of Web sites from displaying the video. "This could happen to anyone. People think she was complicit. We're working to protect her reputation and career, as well as legally," Grossman says. Her stalker has since been arrested and faced trial in January 2010.
Environmentalism is another passion, and during the '80s he served as a commissioner of the California Coastal Commission. "I stood between James Watt and Ronald Reagan and off-shore oil drilling in the state because I tied them up in knots when they wanted to open up the entire California coast. I'm very proud of that."
By the early 1980s, Grossman was indeed leading his firm, Alschuler Grossman, as he had predicted and in 2007, just as unpredictable as ever, it combined with Bingham McCutchen. "I acquired 950 lawyers but we kept the Bingham name. They just don't know that." Then, getting serious, he says, "It was time. It helps ensure the success for our next generation of lawyers."
Part of ensuring that success is mentoring his junior members. "I tell them that it's most important to get their health and finances in order. Once you take care of yourself, you can focus your energies on helping your clients." Grossman says that despite the economy, Bingham is thriving. "We're poised for our best year ever." Since the merger, Grossman says he's working harder than ever but enjoying it more.
Three years ago he took up yoga, and now has a yoga mat in his office. A yoga trainer comes to his office or house two or three times weekly. He also reheated his swimming pool for the first time in a decade and has resumed swimming on a daily basis. "I'm having a great time and want to stick around another 50 years." That's something both Marshall Grossmans will settle for.
Published in Southern California Super Lawyers 2010 - February 2010
Saturday, January 30, 2010
WHEELER TRIGG O'DONNELL'S WTO FOUNDATION DONATES OVER $20,000 TO HAITI EARTHQUAKE RELIEF Mike O'Donnell, the Chairman of law firm Wheeler Trigg O'Donnell, has a mantra he employs in making decisions - to do the right thing and the smart thing. "Where those two intersect is where I want our firm to be," O'Donnell says. The same applies to the firm's charitable foundation.
Two days after the earthquake struck Haiti, the WTO Foundation had initiated a drive to raise funds for disaster relief efforts, with a promise to match the first $10,000 raised. When the drive ended eight days later, the Foundation had collected $10,685. With its match, the total was $20,685. That was the right thing to do.
One of the smart things the Foundation did was to open the fundraiser to all of its 130 firm personnel and anyone they wanted to ask for contributions. In other words, it didn't matter where the first $10,000 that the Foundation would match came from because it was all going towards the disaster relief efforts. Employees invited their family and friends to participate and double their donation in the process. Twenty percent of the contributions came from "outsiders" who were connected to firm personnel, but who were not immediate family.
WTO Foundation executive director Connie Proulx invited her house guest, a staff person with Up With People's Cast A 2010, to ask the 100 young people from 17 countries who had just arrived in Denver if they wanted to donate. Far from home, they were relieved to find a way to participate in the world response to the disaster. They emptied their pockets to raise $770 that was then matched dollar-for-dollar by the WTO Foundation.
The other smart thing the Foundation did was take the opportunity to strengthen the firm's relationship with a valued client by working with him and his Haitian wife to distribute the funds. The client will never forget the concern and caring WTO demonstrated for his Haitian family or the trust the WTO Foundation placed in him to use the money wisely. The money is being distributed among trusted nonprofit organizations that have been working in Haiti for years, including Doctors Without Borders, the World Food Program, the International Red Cross, and Yele Haiti Foundation.
Proulx says, "The WTO Foundation's response was about being part of the world response to help people affected by a natural disaster. It was about coming together as a firm and involving our family and friends in doing a good deed. It was about showing support to a firm client whose family had been affected by the earthquake." It was the right thing and the smart thing to do.
Tuesday, January 12, 2010
WWHGD PREVAILS IN INSURANCE DISPUTE TRIAL Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC partner John Bonnie and associate Lindsay Gatling successfully defended Terex Corporation ("Terex") in a $1.4 million insurance dispute in an Indiana State Court arising out of the alleged malfunction of a bucket truck.
The case involved an aerial lift manufactured by Terex and purchased by end supply manufacturer DUECO, which attached the lift to a truck pursuant to design specifications of Richmond Power & Light in Richmond, Indiana. After a Richmond Power & Light employee fell out of the bucket truck and was rendered a quadriplegic, he sued DUECO and Terex for his injuries. DUECO settled the claims against it and filed a $1.4 million cross-claim against Terex. Terex moved for summary judgment on DUECO's cross-claim which was granted on DUECO's claims for contractual and common law indemnity. This judgment was affirmed by the Indiana Court of Appeals. A fact question remained, however, as to whether Terex had breached an alleged obligation to purchase insurance, as claimed by DUECO.
DUECO contended that Terex was contractually obligated to procure insurance with Vendor's coverage, and that Terex breached its contract with DUECO by not doing so. The contract required Terex to obtain "a Vendor's Endorsement" "if generally available." Terex was self insured for product liabilities up to a particular threshold. A general liability policy excluded product liability but contained a Vendor’s Endorsement. Terex's excess coverage covered product liability but contained no Vendor's Endorsement. Dueco contended that Terex breached its obligations by self-insuring a portion of its products liability risk and by not obtaining a Vendor's Endorsement on its excess policy.
DUECO also contended that a policy of insurance issued to a different entity acquired by Terex prior to the incident afforded coverage to DUECO by way of a Vendor's Endorsement attached to that policy. Terex showed that a Vendor's Endorsement was unavailable in each case; that the policy issued to the predecessor entity had been canceled as of the date of injury; and that even if a Vendor's Endorsement was "generally available," DUECO's modifications to the Terex product rendered the Vendor's coverage inapplicable. Terex also argued that DUECO's claim for $1.4 million was outside the coverage of any commercially issued policy of insurance because DUECO's $1.4 million claim was within the threshold of the Terex self-insurance program.
After arguments and the presentation of evidence and witness testimony in a bench trial, the Court entered judgment for Terex and against DUECO for each of the reasons stated by Terex.
Friday, December 11, 2009
A SEMINAR FOR WOMEN LAWYERS: "SHARING SUCCESS"
DRI's Women in the Courtroom Committee is producing a seminar March 25-26, 2010 at the Westin Kierland in Scottsdale, Arizona focusing on a number of cutting edge topics driving developments in the legal field.
Topics include working with difficult witnesses, business fundamentals for law firm partners, leadership skills for first chair level responsibility, juror bias, evidence errors to avoid, generational differences, interpersonal engagement skills, ethical dilemmas, using social media, mentoring, alternative billing, and negotiating skills.
The program addresses topics of interest and relevance to all trial lawyers, without regard to gender. However, a female perspective can be expected because the chair, vice-chair and program director are women, as is the vast majority of speakers. Of course, the seminar's title, "Sharing Success -- A Seminar for Women Lawyers" clearly states the program's targeted audience. Nevertheless, the program will be of value to all trial lawyers.
The seminar is intended to help women lawyers maximize their full potential in the courtroom, law firm and community. It will address unique challenges women face in the practice of law and offer an alternative model for success tailored to non-traditional ommunication styles and personalities. It is intended to hone trial and business development skills, and it will provided opportunities to participate in networking and social activities. Download the brochure.
Julie Walker, a trial lawyer and partner at the Network's Colorado member law firm, Wheeler Trigg & O'Donnell, is on the steering committee of DRI's Women in the Courtroom Committee which is producing this seminar.
SANDBERG PHOENIX & VON GONTARD ANNOUNCES TWO NEW PRACTICE GROUP LEADERSSandberg Phoenix & von Gontard P.C. announces two new practice group leaders for the firm’s Health Law and Products Liability Practice Groups. Jeffrey L. Dunn, Shareholder, has been named as the Health Law Practice Group Leader; and Andrew D. Ryan, Shareholder, has been named as the Products Liability Practice Group Leader.
Mr. Dunn joined Sandberg Phoenix in 2001 and is a Shareholder in the firm’s Health Law Practice Group. His primary focus is in the long term care industry, where he has represented numerous nursing home providers in six states and in federal court. In addition, he also defends corporate clients in other areas of litigation, including consumer product manufacturer fire cases, breach of contract actions and fraud claims.
Mr. Ryan joined Sandberg Phoenix in October 2004 and became a shareholder in 2007. His primary focus is in the products liability field, where he has represented both manufacturers and distributors of automobiles, industrial equipment, recreational vehicles, medical devices and pharmaceuticals, and other commercial and consumer products. He has also defended motor carriers in cases involving the condition of tractor-trailers and alleged violations of federal motor carrier regulations.
MIKE O'DONNELL NAMED COLORADO CHAIR OF AMERICAN COLLEGE OF TRIAL LAWYERS Michael O’Donnell, chairman of the Denver-based civil litigation firm Wheeler Trigg O'Donnell, was named Chairman of the Colorado State Committee of the American College of Trial Lawyers for the second consecutive year, effective October 1, 2009. Widely considered to be the premier professional trial organization in North America since it was founded in 1950, the ACTL is composed of the finest U.S. and Canadian trial lawyers who are dedicated to maintaining and improving the standards of trial practice, the administration of justice, and the ethics of the profession. Membership is limited to one percent of lawyers in a state.
Mr. O'Donnell is listed in The Best Lawyers in America in five litigation categories, is included in Chambers USA, and is listed as one of the top ten lawyers in Colorado by Colorado Super Lawyers. His national litigation practice focuses on complex civil litigation involving product liability, professional liability, tort, class action, high-stakes insurance, and commercial litigation matters.
ANOTHER WIN FOR DEUTSCH, KERRIGAN & STILES Darrell Cherry defended a manufacturer of safety equipment in a silicosis product liability lawsuit with damage claims totaling six million dollars when an employee alleged that he used the manufacturer's product, which failed to protect him from inhaling silica dust, during his work for 30 years at a shipyard. The original lawsuit named numerous manufacturers of protective equipment. As time progressed, the plaintiff died, and his lawsuit was amended to add wrongful death claims by his wife and seven children. Mr. Cherry used pre-trial motion practice. The first motion was that of abandonment. This motion was denied by the trial court and again on appeal; however, the Louisiana Supreme Court accepted writs and remanded the issue back to the Third Circuit for en banc reconsideration (after the trial the en banc court ruled in the client’s favor on abandonment of the survival action). In the meantime, two months before trial, Mr. Cherry brought an Exception of Prescription against the survival action of the plaintiff, because the plaintiff failed to amend his lawsuit within one year of finding out he had also contracted silicosis in addition to asbestosis. A month before trial, the District Judge granted the exception of prescription, thereby dismissing the plaintiff's survival action (his own pain and suffering from contracting the occupational disease). The only action that remained for trial was that of wrongful death brought by the plaintiff's family. Mr. Cherry, assisted by Mr. Courtenay, participated in a ten-day trial in Jennings, Louisiana, to determine (1) whether the plaintiff contracted silicosis because of the manufacturer’s product and (2) whether silicosis caused the plaintiff's death. After presenting both liability, product I.D. and complex medical evidence and hearing testimony from four experts, the jury found 12-0 that the plaintiff did not die of silicosis. The plaintiff's counsel appealed the granting of the exception of prescription in order to revive the plaintiff's original claim; however, the Third Circuit in November ruled on the abandonment issue and granted the dismissal, rendering appeal on the exception of prescription (statute of limitations) moot.
JUDGE ORDERS PLAINTIFFS TO PAY ATTORNEYS FEES IN WHEELER TRIGG O'DONNELL VICTORY FOR PEABODY COFFEE FRANCHISE Denver District Court Judge Anne Mansfield ordered all plaintiffs to pay over two million dollars in attorneys' fees and costs to Peaberry Coffee Franchise, Inc. The expenses stem from the successful defense by Wheeler Trigg O'Donnell partner Hugh Gottschalk of a complex lawsuit brought by Peaberry's franchisees. Ten franchisees alleged a variety of fraud-in-the inducement and breach-of-contract claims against Peaberry, seeking nearly $30 million in actual and punitive damages. The case involved over 50 depositions, several rounds of briefing, and two hearings. It culminated in a five-week trial that spanned several months and included over 35 witnesses. The Court concluded that the requested attorneys' fees were reasonable and appropriate for the work performed, and that the rates charged and the hours invested in the case by Wheeler Trigg O'Donnell, although substantial, were appropriate given the complexity of the litigation and the length of the trial.
Tuesday, November 24, 2009
WHEELER TRIGG O'DONNELL NAMED #2 BEST PLACE TO WORK IN DENVER Based on an annual survey of employees in Denver companies, the Denver Business Journal named the national civil litigation firm of Wheeler Trigg O'Donnell the number two Best Place to Work in Denver in the large company category. WTO is the highest-rated law firm in all categories (small, medium, and large).
Firm chairman Mike O'Donnell explains the firm's recognition this way. "Our number one priority is taking excellent care of our clients. Making sure the firm's employees are happy is the way to achieve that."
Managing partner Hugh Gottschalk says, "Starting at the top with firm management, everyone in the firm works hard to sustain one of the firm's core values: 'to maintain a firm culture based on the principles of collegiality, tolerance, and respect.'"
The firm's employees cited the friendly and supportive atmosphere, the feelings of being valued and appreciated, and the generous benefits among the reasons for their job satisfaction.
Wednesday, November 18, 2009
BEIRNE, MAYNARD & PARSONS WINS TRADEMARK LAWSUIT ON BEHALF OF HOLLYWOOD MOVIE PRODUCERS Rin Tin Tin, the famous German Shepherd puppy brought from the battlefields of France by a United States soldier during World War I, is back in the news. He became a Hollywood sensation after the Great War, starring in over 26 movies in the 1920s, and was credited with saving the flailing Warner Brothers Studio.
Hollywood producers recently sought to bring back the Rin Tin Tin charm in the form of a children's movie, Finding Rin Tin Tin, released last year.
A Texas German Shepherd dog breeder immediately sued for trademark infringement, claiming to own all rights to the name and trademark Rin Tin Tin, and seeking all profits, along with the destruction of all movie discs. The Houston Texas federal court recently ruled in favor of the producers, holding that their use of the name Rin Tin Tin in the body and title of the movie was a "fair use" and protected under the First Amendment. Trademarks are for the purpose of indicating the "source" of a product. Because the defendants' use of the mark "Rin Tin Tin" in the movie Finding Rin Tin Tin, did not suggest that plaintiffs were the source of the movie, and the use of the name merely describes the subject of the movie, the court reasoned that such use was "fair" and a protected literary work. The court dismissed the entire case against Beirne, Maynard & Parsons' clients.
GOODELL DEVRIES WINS SUMMARY JUDGMENT AND DISPROVES PLAINTIFF'S AGENCY THEORY Craig B. Merkle and Marianne DePaulo Plant obtained summary judgment for their client in a medical malpractice case alleging failure to diagnose a cervical spine fracture. The patient allegedly suffered a high spinal cord injury as a consequence of an ED physician's alleged failure to recognize and treat the c-spine fracture. The ED physician was not an employee of the hospital, but Plaintiffs sought to hold the hospital responsible for her care based on a theory of apparent agency. Deposition testimony taken in the case, along with other factual information gathered in the discovery phase, was used to disprove the requisite elements of a claim of implied agency. Over Plaintiffs' opposition, summary judgment was entered in favor of GDLD's client.
CORR CRONIN WINS BIG FOR MILWAUKEE ELECTRIC TOOL CORPORATION Corr Cronin recently obtained complete dismissal of trade secret, unfair competition and tortious interference claims brought by Danaher Corporation against Corr Cronin client Milwaukee Electric Tool Corporation. Danaher sought millions of dollars in damages, alleging that METCO and several of its employees misappropriated trade secret and confidential information from Fluke, a Danaher subsidiary. The case was fiercely litigated for eighteen months, and included a successful interlocutory appeal to the Washington State Court of Appeals. The case was set for an October 2009 trial, but shortly before the trial date, a King County Superior Court judge granted summary judgment to METCO and its employees on all claims. The judge also required Danaher/Fluke to pay attorney fees to a METCO employee (and Corr Cronin client).
SNELL & WILMER OBTAINS DEFENSE VERDICT FOR FORD AND MAZDA On October 15, 2009, Snell & Wilmer attorneys Vaughn Crawford, Dan Rodman and Jay Schuttert obtained a defense verdict in favor of Ford Motor Company and Mazda Motor Corporation in Washoe County District Court, in Reno, Nevada. This products liability lawsuit alleged a seatback defect in a 1995 Ford Probe, which was built as a joint venture between Ford and Mazda. The driver of the Ford Probe, Kevin Sorci, was rendered a paraplegic after his car was rear-ended, went off the road, hit a boulder and overturned.
Plaintiff claimed the Ford Probe had a defect in its driver's seat that caused the seat to collapse when the Probe was struck from the rear by another vehicle. Plaintiff claimed that the seat collapse caused the Plaintiff to ramp up his seatback and be out-of-position during the subsequent frontal collision with the boulder, causing his spinal cord injury. Plaintiff also asserted a negligence claim against the driver who rear-ended him.
The trial court precluded evidence that the driver of the other vehicle was intoxicated at the time of the crash, and excluded evidence that the Ford Probe, including its seat, complied with all applicable Federal Motor Vehicle Safety Standards.
The Snell & Wilmer defense team presented evidence that the 1995 Ford Probe was well designed and tested, that the seatback did not collapse during the accident as Plaintiff claimed, that the seat yielded rearward an appropriate amount as intended during the crash to absorb the energy of the rear-end collision, and that Plaintiff would have suffered the very same injury during the second collision with the boulder regardless of the position of the Probe's seatback.
After deliberating for approximately four hours following a three week trial, the 8-person jury returned a verdict in favor of Ford Motor Company and Mazda Motor Corporation, finding that the Ford Probe was not defective. The jury also returned a verdict against the other driver, awarding the Plaintiff approximately $8.9 million in damages.
NETWORK'S LIGHTFOOT FRANKLIN'S BLOCKBUSTER RULING Alabama Supreme Court Overturns Three Verdicts Against Drug Companies in State Drug-Pricing Fraud Cases The Alabama Supreme Court reversed $274 million in judgments entered in favor of the state against three pharmaceutical companies - AstraZeneca PLC, Novartis AG, and GlaxoSmithKline PLC - and directed that judgment be entered in the pharmaceutical companies' favor. The state had alleged that the drug companies overcharged the State for prescription drugs for Medicaid recipients.
FRANK W. RYAN TO LEAD NIXON PEABODY'S LITIGATION DEPARTMENT
International law firm Nixon Peabody LLP has named Frank W. Ryan as the Chair of the firm's Litigation Department which includes more than 300 attorneys. Mr. Ryan succeeds the department's previous leader, Samuel Goldblatt, who will continue to focus on his robust practice as a trial lawyer defending domestic and foreign manufacturers in a broad range of cases.
"Under Sam's extraordinary leadership, we have expanded the department's geographic footprint and at the same time complemented our existing talent, abilities and experience," said Frank Ryan, Chair of the firm's Litigation Department. "With this new opportunity, I will not only continue to focus on my practice, but I will work across the firm building teams to work closely with our clients to solve their most difficult legal challenges."
Mr. Ryan is a trial lawyer covering a wide range of industries including technology, media, sports and entertainment. His practice includes patent, trademark, trade dress, copyright, First Amendment, privacy, and trade secrets. He is outside intellectual property counsel to ESPN and represents the company in a wide variety of matters relating to ESPN's worldwide intellectual property portfolio. In the intellectual property and media fields, he has also represented American Broadcasting Company, TomTom, Cache, and the Walt Disney Company.
"Frank is creative, innovative, and focused on achieving the best result for our clients," said Richard F. Langan, Jr., CEO and Managing Partner of Nixon Peabody. "Frank began his career at Nixon Peabody more than 15 years ago and, in that time, I've seen him lead by example and grow his practice into what it is today through his strong sense of teamwork and ability to understand our client's goal on every case, every time."
Mr. Ryan is a graduate of Syracuse University, College of Law, magna cum laude. He also received his bachelor's degree from Syracuse University. Mr. Ryan is a member of the state bar of New York and New Jersey, numerous federal district courts, and the Second Circuit Court of Appeals.
Monday, October 05, 2009
BLAKES OBTAINS DEFENSE VERDICT FOR FORD MOTOR COMPANY
In January 2009, Blakes took a defense verdict for Ford Motor Company and Ford Motor Company of Canada in a serious personal injury claim brought by a police officer.
The officer alleged that the brakes of his Ford police cruiser failed while he was responding to a 911 emergency call, and that the failure of the brakes caused an accident that resulted in his sustaining permanent injuries rendering him incapable of serving as a police officer.
The plaintiffs sought damages at trial in excess of $1 million. Following a six-day jury trial, the jury found that the brakes of the police cruiser had not failed, and the claims against Ford were dismissed in their entirety.
BLAKES CANADA WINS 8-WEEK PROPERTY DAMAGE TRIAL FOR TYCO
Gord McKee of Blake Cassels & Graydon LLP, Toronto, along with Brad Cran and Amanda Heydon, successfully defended the SimplexGrinnell division of Tyco International of Canada Ltd. in an eight week trial stemming from a factory fire that burned for several days.
The fire consumed property valued at millions of dollars, deposited soot on nearby farms and caused the evacuation of two thousand people from their homes.
The case involved some 20 claims and cross claims, including a class action on behalf of evacuated residents, seeking close to $100 million in total from multiple defendants.
A mid-trial judicial mediation resulted in the settlement of many of the claims, including the class action, but trial proceeded against a number of defendants on liability issues in connection with a remaining subrogated property damage claim.
Following the conclusion of the trial, the Court dismissed all of the claims, including a claim against SimplexGrinnell alleging that it had failed to advise the property owner, prior to the fire, to have the adequacy of the building's sprinkler system assessed for a new use (plastic manufacturing, rather than metal stamping).
The Court accepted the evidence of SimplexGrinnell's inspector and of the fire control and prevention expert retained by Simplex Grinnell, finding that SimplexGrinnell did warn the factory owner that the sprinkler system should be assessed, that the absence of a written warning was of no consequence and that the inadequacy of the sprinkler system for the new use was well known to the owner.
Blakes' lawyers were instructed by David Nicholas, Senior Litigation Counsel at Tyco International in Boca Raton, Florida.
This month the Daily Journal recognized two 
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Based on an annual survey of employees in Denver companies, the Denver Business Journal named the national civil litigation firm of 
A Texas German Shepherd dog breeder immediately sued for trademark infringement, claiming to own all rights to the name and trademark Rin Tin Tin, and seeking all profits, along with the destruction of all movie discs. The Houston Texas federal court recently ruled in favor of the producers, holding that their use of the name Rin Tin Tin in the body and title of the movie was a "fair use" and protected under the First Amendment. Trademarks are for the purpose of indicating the "source" of a product. Because the defendants' use of the mark "Rin Tin Tin" in the movie Finding Rin Tin Tin, did not suggest that plaintiffs were the source of the movie, and the use of the name merely describes the subject of the movie, the court reasoned that such use was "fair" and a protected literary work. The court dismissed the entire case against Beirne, Maynard & Parsons' clients. 
The Alabama Supreme Court 
In January 2009, 
