TIPS 75th Anniversary


The Brief

Brief Spring 2001 (5k)Spring 2001 Volume 30, No. 3

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Five Year Index to Volumes 24 through 30

Each issue of The Brief, the Section's quarterly magazine, includes an array of practical articles of interest to plaintiffs' and defense lawyers who practice tort or insurance law.  In addition, the popular "Practice TIPS" section provides practical, how-to advice on practice and litigation matters.

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The Brief
Spring 2001 Volume 30, No. 3
Article Abstracts

"Fear of Cancer as a Compensable Cause of Action"
By Michael D. Hultquist

In what may be seen as the last possible ripple in the toxic tort/mass tort explosion that began in the early 1980s, plaintiffs have sought compensation for their fear of contracting cancer due to exposure to carcinogens. This article provides an explanation of potential causes of action, elements necessary to prove a claim in various jurisdictions, and public policy underpinning certain pivotal rulings.

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"Defending 'No Injury …Yet' Medical Monitoring Claims in Class Action Settings"
By John J. Weinholtz

Medical monitoring claims have been asserted with increasing frequency, and more and more courts are recognizing such claims. Medical monitoring claims typically involve complex issues of science and medicine and can be expensive to litigate, particularly in a class action setting where stakes generally are higher. From the defense perspective, it is incumbent upon defense counsel to identify and evaluate threshold issues that can potentially dispose of a case early in litigation, before serious costs have been incurred. This article examines two such threshold issue: (1) whether there is a cause of action for medical monitoring in the absence of a present physical injury; and (2) whether a medical monitoring claim is appropriate for treatment as a class action.

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"Demonstrative Evidence in Medical Malpractice Actions: Lead, Follow, or Get Out of the Way"
By Jeffrey J. Kroll

From a plaintiff's perspective, the multimedia medical trial allows jurors to see, hear, feel, and understand the terminology, physiology, and anatomy involved in the medical negligence case. Armed with appropriate ammunition, a jury is empowered to return a verdict in favor of the plaintiff. With ever-greater percentages of society becoming more technology savvy, the time to incorporate technology into the medical negligence trial is now.

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"Using Technology during Trial to Persuade the Jury: A Defense Perspective"
By Luke M. Pittoni

A multimedia presentation allows defense attorneys extended leeway in making points to jurors in medical trials. Using technology, a lawyer can organize medical negligence cases; control the flow of trials; streamline evidence presentations; introduce complex medical information in educational and interesting ways; focus the attention of judges and juries; and dramatically enhance the impact of defense arguments, exhibits, and witnesses. This article addresses how the defense attorney can create and use computer-assisted exhibits for use in the courtroom.

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"Personal Injury Liability Coverage"
By M. Jane Goode

Insurance coverage against liability for personal injury is a fairly recent addition to the coverages afforded for many years under the former comprehensive general liability policy. Unlike bodily injury and property damage liability coverage, personal injury liability coverage is not dependent upon an accidental occurrence. Coverage is triggered by commission of an offense during the policy period. The language of the enumerated offenses that constitute personal injury and of exclusions from coverage has changed significantly over the years. Since these changes have produced different outcomes in court decisions interpreting and applying the coverage and its exclusions, it is essential to study the particular language at issue before making any coverage decisions.

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"For Want of a Nail: Component Supplier Products Liability"
By Donald R. Parshall, Jr.

We are currently at the leading edge of the next phase, in which suppliers provide modules and systems (e.g., front end modules, cockpits, and comer modules) that constitute building blocks for the entire vehicle. This article discusses the current status of law concerning liability of component suppliers and possible impact of the RESTATEMENT (THIRD) OF PRODUCTS LIABILITY on suppliers as they absorb an increased share of the responsibility for component design, manufacture, and integration. Additionally, the article presents a rationale to limit potential liability of suppliers that is consistent with well-reasoned decisions regarding component supplier liability.

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"What Defense Lawyers Want Plaintiff's Lawyers to Do at Trial"
By James J. Yukevich

The proper preparation and presentation of a case at trial is an intensely personal thing for most trial lawyers. Every lawyer has a particular method of jury selection, evidence presentation, cross-examination, and argument. There is no single formula for success. However, there are certain time-tested traps, from the defense point of view, that plaintiff's lawyers consistently stumble into during trial. This article examines, by trial topic, the top 10 mistakes defense lawyers love to see plaintiff's lawyers make during trial.

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"Developments in ERISA Preemption and Standard of Review"
By Horace Green

It is clear that the courts continue to struggle with the issue whether, and to what extent, state law claims are preempted by ERISA. It is likely that the overall scope of ERISA preemption will continue to contract from its previously expansive scope. On another front, evaluating the standard of judicial review of denials of ERISA benefit claims by plan fiduciaries established a trend toward allowing district courts to conduct independent reviews of administrative records and in many cases of materials not submitted to the claim review fiduciary, unfettered by any deference to the original decision makers. This trend has continued, and there are no indicators that it will be reversed. This article examines preemption and standard of review trends.

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Last Modified on Monday, June 25, 2001 1:05 PM

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