The Voice^TM

Laurie Miller Hired to Lead DRI’s Programming Department

DRI is incredibly excited to announce the hiring of longtime member and leader Laurie K. Miller.  Beginning May 3, 2021, Laurie will join the DRI staff to lead its Programming Department as Senior Director of Programming.

“Joining DRI was the opportunity of a lifetime for me.  I am thrilled to continue to serve DRI’s members in this new role,” said Laurie.  “Envisioning, developing, and delivering first-rate educational programs and high-quality networking opportunities across multiple mediums for our members are things about which I am extremely passionate.  I am very excited to talk with our members, committees, law firms and corporate clients and learn how DRI can continue to reimagine our programming and networking opportunities to best meet our members’ needs in our current environment and beyond.” 

A member of DRI for nearly 20 years, Laurie most recently served the organization as vice chair of its prestigious Law Institute, to which she was first appointed in 2016. She previously served DRI as chair of the Young Lawyers Committee and the Membership Committee. She also served as program chair and membership chair for both the Commercial Litigation and Women in the Law Committees. Since 2011, Laurie had been a member of the Charleston, West Virginia, office of Jackson Kelly PLLC, where she practiced in the firm’s litigation department within the health care practice group. Her clients included hospitals, doctors, nursing homes, and other health care providers in litigation matters.  Her additional practice areas included pharmaceutical/medical device litigation, product liability, and commercial litigation.

“When Laurie came in and sat down to discuss the idea, it didn’t take long to realize that this was a very easy decision for DRI to make,” said Dean Martinez, DRI Chief Executive Officer. “Laurie’s experience with the organization, coupled with her organization-wide reputation for innovative ideas and industriousness, make her the right person at the right time, as DRI looks to forge the next leg of its journey as the leader in educational offerings for the civil defense bar.”

Upcoming DRI Elections

Four Director Elected Nationally seats on the DRI Board of Directors, plus the offices of Second Vice President and Secretary–Treasurer, will be filled at the 2021 DRI Annual Meeting in Boston, October 13–16. To be considered for any position, a DRI member must first file a Declaration of Candidacy form. For more information, please contact Nancy Parz at DRI headquarters: nparz@dri.org or 312.698.6224. Declarations are due by July 1, 2021.

DRI Call for Nominees: Annual Professional Achievement and Service Awards

Do you have a colleague who deserves recognition for his or her professional contributions? DRI's Annual Professional Achievement and Service Awards celebrate and honor outstanding performance by state and local defense organizations, DRI law firms, and individual members, and we are looking for nominees.

These awards aim to recognize individuals for their achievements on behalf of the defense bar and the civil justice system, or their involvement in community and public service activities that have a positive effect on society at large. Recognition enhances members’ personal growth and accomplishments, provides us all with role models, and strengthens members’ images in the legal and business communities and with the general public.

Please download a copy of our awards brochure and read how you can nominate a deserving individual, your organization, and its members. We encourage you to submit an entry for each award by July 1, 2021. Winners will be announced at the Celebration of Leadership on Friday, October 15, held in conjunction with DRI’s Annual Meeting in Boston, Massachusetts, from October 13–16, 2021. In addition, DRI will recognize award recipients in The Voice and through press releases to national and local media.

DRI and Lexicon Announce Partnership

In March 2021, Lexicon, a comprehensive legal technology and services provider, and DRI announced their partnership to launch a thought leadership outreach program for DRI members, with the goal of helping firms better manage the business side of law.

Lexicon's extensive practice management experience, combined with DRI's commitment to enhance its members' skills, effectiveness, and professionalism, will provide valuable insights on how best to manage and grow law firms today and in the future.

At the end of the day, law firms are spending too much time on administrative tasks on top of also having to run a business, and not enough time practicing law.

“A law firm's core business is to provide legal services, and the firm should examine any other functions outside of practicing law to determine if it's in the firm's best interest to do it in-house,” said Scott Brennan, Lexicon CEO. “Law firms are not experts at everything, and many aspects of running a business can and should be left to outside experts.”

Both Lexicon and DRI provide attorneys just that—outside experts who are equipped to offer attorneys and their firms valuable business insights.

“The practice of law is evolving quickly,” said Dean Martinez, Chief Executive Officer at DRI. “We are a unique catalyst for the skillful navigation of the business of law, providing attorneys and businesses with the resources and connections to help deliver value and create lasting impact. This partnership with Lexicon enhances this commitment to our members.”

With this partnership, DRI and Lexicon will be producing a series of “Business of Law” webinars. The first installment, “Utilizing ‘New Law’ to Optimize Revenue and Increase Efficiencies—Building a Competitive Advantage,” will take place April 26, 2021, at 12:00 p.m. Central Time. Register here.

Federal paid sick leave and paid family and medical leave were first provided for in the FFRCA. Effective April 1, 2020, the FFRCA required employers to provide up to eighty hours of job-protected paid sick leave to employees who were subject to a government-mandated quarantine order, whose health care provider advised them to self-quarantine, or who were experiencing symptoms of COVID-19 and seeking a medical diagnosis. The law also gave employees the right to take paid sick leave at two-thirds their regular rate of pay when they were unable to work because they needed to care for an individual subject to a quarantine order, if their child’s school or childcare provider was unavailable because of the pandemic, or if they were experiencing a substantially similar condition to COVID-19 as specified by the Secretary of Health and Human Services. In addition to paid sick leave, the FFRCA also entitled employees to take up to ten more weeks of paid family and medical leave if they were unable to work because they needed to care for a child whose school or childcare provider was unavailable because of the pandemic. Employers were required to provide the above-described leave through December 31, 2020.

While employers were no longer required to provide paid pandemic-related leave after December 31, 2020, the Consolidated Appropriations Act, 2021 extended employers’ ability to provide the leave voluntarily, while continuing to take tax credits for the leave, through March 31, 2021. Now, with the pandemic continuing to affect the American workforce, Congress has again extended employers’ right to take such credits.

The American Rescue Plan Act of 2021 extends employers authority to take tax credits for offering paid COVID-related leave for all the reasons enumerated in the FFRCA through September 30, 2021. In addition, as of April 1, 2021, employees now qualify for paid sick leave for the following additional reasons:

• The employee is seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, COVID-19 and the employee has been exposed to COVID-19;
• The employee’s employer has requested the employee obtain a diagnostic test or medical diagnosis for COVID-19;
• The employee is obtaining immunization related to COVID-19;
• The employee is recovering from an injury, disability, illness, or condition related to COVID-19 immunization.

The act also makes employees eligible for paid family and medical leave for all the reasons for which paid sick leave is available (including both the original reasons and the newly added reasons).

While federal law no longer requires employers to provide employees paid sick leave or paid family and medical leave, the expanded leave provisions in the act should be of interest to employers for several reasons. First, the new leave provisions address employees who have been exposed to COVID-19, but are not experiencing symptoms themselves and who have not seen a health care provider. Employers likely wish to prevent these employees from coming to work and potentially exposing their workforce to the virus until they receive a negative COVID-test. Employers can now incentivize such employees to stay home until they receive their negative test by offering paid leave under such circumstances, while taking tax credits associated with offering the leave.

The act’s inclusion of immunization-related leave also presents an opportunity for employers to incentivize their workforce to become vaccinated, while minimizing the cost to the employer. Many employers have considered incentivizing their employees to get vaccinated by offering them paid leave while they get vaccinated. Again, the act provides a mechanism for employers to offer employees that paid leave, while at the same time offsetting the cost of the incentive through tax credits. Likewise, the act includes paid leave for employees who experience conditions following vaccination, which may also be helpful in incentivizing employees to get vaccinated. The Center for Disease Control and Prevention reports that tiredness, headache, muscle pain, chills, fever, and nausea are all common side effects after getting the COVID-19 vaccine. By offering paid leave to employees if such symptoms prevent them from working, employers can assure employees they will not be out wages because of getting vaccinated. And again, tax credits offset the cost to the employer in offering this incentive.

Because the act is effective April 1, 2021, employers who wish to take advantage of tax credits available through the act should immediately update their pandemic-related leave policies to include the new qualifying reasons for taking leave.

Jennifer Ralph is a member of Rembolt Ludtke’s employment and labor law practice group in Lincoln, Nebraska. She has experience litigating claims arising under both state and federal employment and labor laws. In addition, Jennifer counsels employers with respect to various employment matters, including compliance with employment laws and drafting employee policies and agreements.

1. Know the Law

The first and most important rule to excluding an expert opinion is to know and understand the law. Federal Rule of Evidence 702, which generally has been adopted by most states, provides that an expert witness may testify to an opinion if four prongs are met.

he first prong essentially requires that the opinion be relevant to the case at hand. While important, this prong is not frequently relied on to exclude expert opinions. The second prong requires that the opinion be based on “sufficient facts or data.” While this prong is frequently relied on to exclude expert testimony, it does not necessarily depend on a Daubert analysis. Rather, this prong is often challenged when experts either mischaracterize, misapply, or make improper assumptions about important facts that they relied on in forming the basis of an opinion. An example of this is an expert who has mischaracterized prior testimony or has mistakenly assumed critical facts not yet in evidence.

More notably, however, the third and fourth prongs are the requirements addressed in Daubert and most subsequent caselaw. These prongs require expert testimony to be “the product of reliable principles and methods,” and for the expert to have “reliably applied the principles and methods to the facts of the case.” More simply, these prongs concern the “methodology” used by experts in forming their opinions.

Specifically, the Supreme Court in Daubert set forth a non-exhaustive list of factors that the trial court should consider in determining the sufficiency of an expert’s methodology, including:

• whether the expert’s theory can be and has been tested;
• whether the theory has been subjected to peer review and publication;
• the known or potential error rate of the technique; and
• whether the technique is generally accepted in the scientific community.

While Daubert is the seminal case in most jurisdictions for excluding an expert opinion, it is critical that you promptly familiarize yourself with any analogous decisions that would also apply to your case.

2. Be Diligent, but Act Fast!

Like any important witness, it is critical that you adequately prepare for the deposition of an opposing expert. This means that, prior to the deposition, you have filed expert interrogatories and performed an independent investigation, including a review of the expert’s prior opinions, testimony, and publications, as well as any Daubert challenges made against him or her.

Additionally, it is important that you timely file a targeted subpoena duces tecum with your deposition notice. Among other things, your subpoena duces tecum should request the expert to produce all records that he or she relied on in forming his or her opinions, as well as all non-privileged expert/forensic reports that the expert has previously prepared―directly related to your case or not.

However, keep in mind that many trial orders only provide you with a limited amount of time between the expert disclosure date and trial. Thus, it is crucial that you promptly request, coordinate, and notice the deposition of an opposing party’s expert, ensuring that you have enough time to take the deposition, order the transcript, file your motion, and have it heard well in advance of trial. Generally, the closer to trial the motion is argued, the less likely the court is going to grant it.

3. Ask Targeted Questions at the Expert’s Deposition

While there are other considerations when deposing an expert—mainly to elicit impeachment and other cross-examination material—if you reasonably expect to exclude an expert, you must make the appropriate inquiry at his or her deposition. To do this, you should incorporate the respective law and legal terminology into your examination.

First, you must make sure the opposing expert identifies every opinion that he or she is making with respect to the case. Next, you will need to elicit the factual basis that he or she has relied on in forming each of these opinions (a.k.a., the extrinsic evidence provided to or otherwise obtained by the expert). Then, you must have the expert identify and describe in detail his or her methodology, as well as the specific application of this methodology, that he or she used to arrive at each of his or her opinions. Pursuant to Daubert, ask the expert whether each methodology has been tested, is subject to peer review, has a known or potential rate of error, and is generally accepted within its respective scientific, medical, or professional communities. When doing this, be sure to make a specific inquiry into the basis supporting the expert’s testimony concerning each of these factors.

Often, opposing experts will rely entirely on their “experience” as the basis for their methodologies. While this does not per se make an expert opinion inadmissible, it certainly strengthens your argument to exclude such testimony.
Additionally, every time an expert gives an opinion, make sure you ask whether he or she is able to make this opinion to a reasonable degree of scientific, medical, or professional certainty. If the expert admits that he or she cannot do so, or otherwise evades such question, there is arguably no greater evidence that his or her opinion is improper and should be excluded at trial.

4. “Lock In” The Expert’s Testimony Whenever Possible

At some point, every attorney reads a deposition transcript and wishes that he or she would have cleared up a particular exchange. Much like impeaching a witness at trial, you will need to “lock” experts into their testimony if you want to rely on it to exclude their opinions. To do so, you must ensure that both the questions and answers within a testimonial exchange are clear and definite. While seasoned experts may make this difficult for you, do your best to tailor your questions narrowly and to confront any non-responsive or evasive answers consistently. If you do not lock in the expert’s testimony, opposing counsel will surely point to other testimony, evidence, or even supporting affidavits to rebut your motion. Generally, a good rule is to elicit as much information as possible from the experts before challenging them with any confrontational inquiries.

Also, every time an expert did not do or consider something important with respect to his or her opinion, you should aggressively flesh this out. Get the expert to provide you with a series of “Nos” that you can easily use to bolster your motion. This is often called “accentuating the negative,” and if done correctly, can be an effective way to discredit an expert opinion.

Finally, if the expert has prepared a report, use it to your advantage. While these reports are usually inadmissible to bolster an expert’s opinions, it can certainly be used at deposition to lock in his or her testimony.

5. Keep Your Audience in Mind

Ultimately, to exclude an expert opinion, the only person you need to convince is the judge. While there are several considerations needed to accomplish this, here are a few important ones to keep in mind.

Make sure to structure your written motion in a way that it can be easily read. If you are making multiple arguments for why the expert’s opinions should be excluded, organize them into separate sections and spend the time to title them accordingly.

Do your best to eliminate any unnecessary facts, arguments, or citations. While it is tempting to regurgitate every bad aspect of an expert’s testimony, chances are that much of this information goes to the weight of the opinion―not its admissibility. There is a good chance that the judge may only have time to read your motion once before it is heard, so make every word count. Generally, if you do not intend on referencing information at oral arguments, it is probably best to omit it from your written motion.

If there is an expert report, feel free to cite it interchangeably with the expert’s testimony. If there is any ambiguity between the expert’s testimony and report, cite whichever one you believe will better support your arguments and let opposing counsel explain the inconsistency.

Keep in mind that your goal at oral arguments is still the same: to convince the judge to exclude opposing expert’s opinion. The best and most effective way to do this is to reinforce your written motion emphatically. Your goal is not to impress the court with your public speaking skills or ability to flatter.

While it is important to anticipate and rebut any counterarguments from opposing counsel, do not do so at the expense of your motion. Make sure you clearly state your arguments and supporting evidence before you start tearing down the plaintiff’s rebuttal. Ultimately, you want to make your arguments to the court as fluid as possible.

Finally, because the burden ultimately falls on the plaintiff to prove his or her expert’s admissibility by a preponderance of the evidence, your oral argument is your best opportunity to emphasize this to the court. Too many attorneys shoot themselves in the foot by arguing these motions as if they are moving for summary judgment, which is a substantially different and higher standard.

Brooks A. Saible is the founding partner of Saible Law Group PA, which is located in St. Petersburg, Florida. Mr. Saible earned his Juris Doctorate from St. John’s University School of Law. As an experienced trial attorney, Mr. Saible is well-versed in handling several areas of civil litigation, including premises liability, construction defect, wrongful death, negligent security, commercial contracts, products liability, professional liability, automobile negligence and first-party property claims. Mr. Saible resides in St. Pete Beach, Florida, with his wife, two children, and beloved Labrador Retrievers.

The pandemic gave rise to claims for disability benefits from healthcare workers that allege an inability to perform their occupation due to existence of a co-morbid condition that increases the risk of adverse health consequences due to COVID-19 exposure. For example, Josephson v. Unum Group, et al., No. 2:20-cv-08259 (C.D. Cal., Sept. 2020), involves a claim by an emergency room physician who allegedly has a chronic asthmatic condition. Dr. Josephson ceased working based on a recommendation from her treating physician and her “own research” that she should avoid prolonged exposure to patients with COVID-19. She argues that the combination of her severe asthma and constant exposure to individuals infected with COVID-19 at work made her unable to perform her own occupation because of the heightened risk of contracting COVID-19, potentially resulting in severe respiratory complications or death. Dr. Josephson further argues that the insurer denied her claim “on the alleged basis that her asthma was not of such a severe nature to place her in undue danger in the event she contracted COVID-19 from continuing her occupational duties.” However, Dr. Josephson alleges that she “is informed and believes” that her claim was denied pursuant to a blanket guideline to deny all disability claims premised on the existence of a co-morbid condition that significantly increases the risk of death due to COVID-19 exposure.

In Saputo v. Prudential Ins. Co. of Am., No. 2:21-cv-10162 (E.D. Mich., Jan. 2021), the plaintiff, a hospital worker, alleged that she is disabled from her occupation until the pandemic is “under control” because she is immunocompromised and, therefore, at a heightened risk to contract COVID-19 and suffer “a devastating outcome.” The plaintiff claims that Prudential wrongfully denied her benefits, at least in part, because it relied on a requirement that she provide “clinical evidence of impairment” that did not appear in the policy. Although the complaint does not identify the plaintiff’s specific job at the hospital, presumably it is not one that can be performed remotely.

While fear of contracting COVID-19 at work usually will not provide grounds for disability benefits, an underlying physical condition of sufficient severity might change the analysis. It is an open question whether increasing availability of vaccines and effective treatment of COVID-19 will minimize such claims by healthcare workers. A refusal to be vaccinated (whether based on medical contraindications or some other reason) is another factor that might affect the outcome.

Is COVID-19 “Long-Haul Syndrome” a Disability?

The pandemic could give rise to claims for disability benefits from COVID-19 “long-haulers,” i.e., survivors with long-lasting symptoms, particularly cognitive difficulties (e.g., memory problems, difficulty concentrating) and chronic fatigue syndrome. Scientists are still learning about the disease and studying how to treat the debilitating symptoms of long-haulers. Presumably, such claims will have similarity to claims based on subjective symptoms or syndromes that are not clearly understood, e.g., chronic Lyme Disease or chronic fatigue syndrome. Insurers will need to evaluate the medical support for the condition, and also assess whether the condition affects the claimant’s ability to work and limits functional capacity, i.e., whether the symptoms are truly debilitating, to determine whether such claimant qualifies for disability benefits.

IME or No IME, That Is the Question

In the course of claim evaluation, if an insurer has questions about the medical support for a claim, it can request an independent medical examination (IME) of the claimant. Plaintiffs’ attorneys, and some courts, have considered IMEs to be something of a “gold standard,” looking skeptically on adverse determinations based solely on “paper reviews.” However, some plaintiffs’ attorneys have begun to cite the pandemic as a basis for a new argument that insurers are using IMEs as a tool to deny claims. Specifically, plaintiffs are asserting claims of bad faith practices, alleging a health threat through exposure to COVID-19 during an in-person IME.

Two recent cases, Nesti v. Life Insurance Company of North America, No. 1:20-cv-01642 (D. Colo. June 8, 2020) and Ahring v. Life Insurance Company of North America, No. 4:21-cv-00010 (D. Ariz. Jan. 8, 2021), are good examples of this new trend. The plaintiffs sought to enjoin the insurer from requiring that they comply with an IME request due to alleged health threats caused by the pandemic. The plaintiffs also asserted a benefits claim seeking clarification of their right to continued benefits. Both cases were voluntarily dismissed.

While the pandemic continues, it might be advisable for insurers to consider documenting in the claim files (and in their communications with claimants) the specific reason(s) why an IME is being requested. Insurers should also consider whether to institute a uniform procedure to follow in claims where the claimant refuses an IME on the basis of the pandemic.

The pandemic might also foster the growth of virtual IMEs as an option in the claim evaluation process. To be sure, some aspects of physical examinations, especially for musculoskeletal and neurological assessments, are not amenable to virtual assessment. However, new technological approaches for completing remote IMEs are being developed, e.g., technology that enables “virtual palpitation” for a more objective assessment. The longer the pandemic lasts and the further technological progress advances, the more likely it is that virtual IMEs will gain increased acceptance as a viable claim practice in at least some circumstances.

Conclusion

Though the pandemic is (hopefully) a once-in-a-lifetime event, it also has had some less dramatic, though still significant, effects on the substantive and procedural issues that arise in claim disability administration. However, these changes do not modify the general approach to determining eligibility for LTD benefits. Thus, claim administration still requires a full and fair review of the medical and vocational evidence in each claim.

If you don’t know what mindfulness is, put quite simply, mindfulness is awareness in the present moment. In the fast-paced world that we live in, we often get caught up in a mode of constant doing, and, as a result, we miss out on many of potentially meaningful moments in our lives. Moreover, as lawyers, we have a strong tendency to reflect on past situations or interactions for guidance on how to handle current situations, or we may worry about the future outcome of cases or dealings with clients, which can also cause us to lose touch with what is right here, right now. But a regular practice of mindfulness meditation can help us to become more aware of when we are lost, and in that moment, we can make the choice to show up for our life experiences.

Common misconceptions about meditation include: “I can’t do it because my mind is too busy,” or “I just can’t clear my head.” But with mindfulness, we’re not looking to clear our heads or even change ourselves in any way. Rather, mindfulness is all-inclusive and teaches us that we have the inner tools to work with what is, just as we are, in this very moment. This can include all of our thoughts, emotions, and body sensations, even when they are unpleasant. As our practice develops, we gain a better understanding of our minds and this, in turn, can help increase resilience to both our personal and professional challenges.

We can deepen our present-moment awareness with the attitude that we bring to the practice. Jon Kabat-Zinn, the creator of the Mindfulness-Based Stress Reduction (MBSR) Program, identified the following nine “attitudinal foundations,” which can be cultivated through the practice of mindfulness: (1) beginner’s mind, (2) non-judging, (3) acceptance, (4) letting go, (5) trust, (6) patience, (7) non-striving, (8) gratitude, and (9) generosity. While each can be of great benefit in the work that we do as lawyers, given that the season of spring has just begun, it seemed like an opportune time to discuss the importance of having a beginner’s mind.

As lawyers, we are essentially problem-solvers 24/7, constantly identifying legal issues, creating defense strategies, and ultimately resolving or possibly litigating our cases. Given all of the fixing and resolving that we do on any given day, let alone throughout the lifespan of our cases, one can appreciate how easily we can get cognitively “caught-up.” In all of our doing, we can get pigeon-holed in our thought processes and believe that we are the experts and, therefore, know what the outcome of a particular situation should be. This type of mindset can cause us to overlook subtle, yet profound, details unique to each of our cases. As Jon Kabat Zinn explains in “Full Catastrophe Living,” too often our thinking and beliefs about what we know prevent us from seeing things as they really are.

But we can avoid this trap if we cultivate a beginner’s mind—a mind that is willing to see everything as if for the very first time. Just as no single moment is the same as any other moment, the same holds true for each of our cases. Approaching each case, client, and situation with a beginner’s mind allows us to be receptive to new possibilities and prevents us from getting stuck in the rut of our own expertise, which often makes us think we know more than we do. As best stated by Shunryu Suzuki Roshi, “In the beginner’s mind, there are so many possibilities; in the expert’s mind, there are few.”

One personal example of how having a beginner’s mind helped me to get “unstuck” was when I had a deposition scheduled with a notoriously difficult lawyer. In one of my previous cases with this particular lawyer, he objected to what seemed like almost every question I posed to his client, I had to deal with a disgruntled deponent, and the deposition lasted for what felt like days. Fast-forward to when I woke up on the morning of the deposition in my more recent case: I played out the entire day in my head, convincing myself that the day would unfold just as it had in our previous deposition together. I began to notice the muscles in my neck tighten, my heart beat rapidly, an achiness in my stomach, and there I was, still just lying in my bed—I hadn’t even had my morning cup of coffee yet!

When I arrived for the deposition later that morning, I experimented with cultivating a beginner’s mind. Rather than allow my turbulent past with this lawyer and my preconceived thoughts and opinions cloud my experience that day, I looked at him with a set of fresh eyes. To my surprise, we actually got along fairly well that day, the deponent was cooperative, and the deposition ended at a reasonable hour. While it is completely normal for our minds to get caught up in worry of the future or rumination of the past just as mine did that day, cultivating a beginner’s mind can help us hit the refresh button so-to-speak and open more fully to each new moment.

I encourage you to try bringing a beginner’s mind to the moments of your life. You may notice the ways in which you can free yourself of the traps that otherwise go unnoticed when we are stuck in a mode of constant doing. If you are interested in cultivating a beginner’s mind in a formal practice, I invite you to listen to my guided meditation at https://youtu.be/_uco3_jpMwc. And for more information on mindfulness or to obtain additional resources, please visit my website https://www.courtneyschulnickmindfulness.com/.

Courtney B. Schulnick, special counsel in Marshall Dennehey Warner Coleman & Goggin PC’s casualty department in Philadelphia, litigates cases in both state and federal courts. In an effort to better manage her anxiety and the stressors associated with litigation and life in general, she enrolled in the MBSR Program at the Mindfulness Institute at Jefferson University. She completed both the Teaching Practicum and Internship at Jefferson. Courtney now pursues her passion of helping others by teaching Mindfulness so that they, too, can live more fully in the present moment and achieve greater balance, vitality, and health.

Tony Sbarra

DRI National Director Tony Sbarra, a shareholder at Hermes Netburn in Boston, recently successfully defended Porsche Cars North America in warranty arbitrations in Connecticut and Massachusetts.

In the Connecticut case, Ceci v. PCNA, CAP-Motors, Case 95201025, the claimant alleged that a “screeching noise” condition with the heating system in a 2017 Porsche Macan constituted a serious safety defect in violation of Conn. Gen. Stats. Sec 42-179 (b) and (d), the Connecticut Lemon Law. For these alleged violations, the claimant sought repurchase of the vehicle from PCNA, plus attorneys’ fees and costs. At the hearing, the claimant presented video evidence of audible humming coming from the heating vents in the vehicle. PCNA presented the testimony of the service manager for the Porsche dealership in question and, more significantly, of PCNA’s New England Field Technical Manager, who testified about the proper operation of the Macan’s climate control system. PCNA then argued, based on General Motors Corp., v. Dohmann, 247 Conn. 274, 288 (1988), that it is not just the existence of any condition or defect that is compensable, but rather, the defect must be one that substantially impairs the use, safety, or value of the vehicle. The arbitrator concluded that although the Macan in question did meet the requirements of the law with regard to repairs and days out of service, the noises could be substantially diminished if the system were operated in auto mode and that the Macan’s condition did not constitute a compensable nonconformity under applicable Connecticut law.

In the Massachusetts case, Blair v. PCNA, CAP-Motors, Case 95211005, the claimant alleged that loud squeaking emanating from the brakes in a 2020 Porsche Macan constituted a serious safety defect in violation of Mass. Gen. Laws Ch. 90, Sec. 7N ½, the Massachusetts Lemon Law. For these alleged violations, the claimant sought repurchase of the vehicle from PCNA plus attorneys’ fees and costs. The claimant testified at the arbitration hearing that the noise occurred during slow braking only and not at higher speeds. He also presented video evidence documenting the noise. PCNA presented the testimony of the service manager for the Porsche dealership in question and, more significantly, of PCNA’s New England Field Technical Manager, who testified about Porsche braking systems in general and explained that the low speed noises were a typical characteristic of the vehicle’s operation and not a safety hazard. Under Finigan-Mirisola v. DaimlerChrysler Corp., 2006 WL 3479520 (Mass. Super. Ct. 2006), PCNA argued that the noise alone did not rise to a nonconformity or defect that substantially impaired the use, safety, or value of the vehicle. The arbitrator found that the only compensable element available to the claimant would have been if he had established that the Macan was worth less in resale due to the noise, but that there had been no admissible evidence offered on that issue. Consequently, PCNA prevailed.

Kile Turner

DRI member Kile Turner of Norman Wood Kendrick & Turner in Birmingham, Alabama, obtained a win in federal court following a hotly contested bench trial, where the plaintiff policyholders sought a seven-figure recovery against an insurance company in Barton v. Nationwide Mutual Fire Ins. Co., 2:17-CV-618-SLB. Former presiding judge Sharon Blackburn issued a thirty-five-page opinion that explained why the plaintiffs could not recover against Mr. Turner’s client—a national insurance company. The plaintiffs were homeowners who had obtained a $900,000 judgment in Alabama state court against an insured general contractor who had gone out of business. Under the Alabama Direct Action Statute, once a party obtains a judgment against an insured policy holder, they become a judgment creditor under the policy and can bring a direct action against the insurance company to collect the judgment. However, the amount recoverable is limited to what is covered under the policy. In this case, Mr. Turner was able to show that despite the size of the judgment, none of the judgment was for damages that were insured. Taking a page from Bob Tyson’s great book, Nuclear Verdicts: Defending Justice for All, (literally, page 47), Mr. Turner suggested that the court award the plaintiff a certain amount of damages for mental anguish. However, despite the recommendation, the court found that the plaintiffs were not entitled to damages. This supports recent jury research that suggesting an amount actually increases the chances of a defense verdict. Ultimately, the court returned a verdict 100 percent for the insurance company client without awarding the plaintiffs anything, despite stating several times during the trial that she felt sorry for the plaintiffs.

Paul Caleo and Lynn Rivera

In Bennett Sell-Kline v. Peter Troncale, et al., Los Angeles Superior Court Case No. 18STCV08100, plaintiff Bennett Sell-Kline filed a negligence action against defendants, Peter Anthony Troncale and his employer Tomovich & Associates, for serious injuries and damages arising out of a collision between the plaintiff’s vehicle and a truck driven by defendant Troncale that was owned by his employer. The plaintiff alleged that the defendant employer Tomovich & Associates was liable for the plaintiff’s serious orthopedic injuries under theories of (a) vicarious liability as Troncale’s employer, and (b) a permissive use theory, given the accident occurred in a company vehicle.

On behalf of its client, Tomovich & Associates, DRI members Paul Caleo and Lynn Rivera of Burnham Brown filed a motion for summary judgment, arguing there was no evidence of liability because Troncale took the vehicle without permission and was not working at the time of the accident. The plaintiff opposed the motion and argued that Tomovich was liable because it gave Troncale implied permission to use the vehicle. It also argued that Tomovich was negligent for failing to safeguard the vehicle keys or implement written policies and procedures regarding vehicle use. The plaintiff also argued that Tomovich was liable under the special circumstances doctrine.

The court granted the motion for summary judgment, ruling that there was no triable issue of material fact on vicarious liability and permissive use. It also ruled that the special circumstances doctrine did not apply to the case facts.

The Los Angeles Superior Court is a venue known for denying dispositive motions, and this was the second dispositive motion won by the commercial automobile team of Paul Caleo and Lynn Rivera in the last six months.

Robert W. Maxwell and David W. Case

A unanimous panel of the Connecticut Court of Appeals affirmed a jury verdict for Hyundai Motor America on March 30, 2021. Brown v. Hyundai Motor America, et al., 203 Conn. App. 490 (2021). Hyundai was represented by DRI members Robert W. Maxwell of Bernard Cassisa Elliott & Davis in Covington, Louisiana, and David W. Case of McElroy Deutsch Mulvaney & Carpenter in Hartford, Connecticut.

Hyundai won the trial in New London, Connecticut, Superior Court on July 3, 2019, when the jury found no manufacturing defect in a 2013 Hyundai Elantra’s front driver’s wheel that fractured in an accident. See “Defense Wins,” The Voice, 7/31/19, at 6. After the trial court rejected post-verdict relief, the plaintiff appealed, claiming:

1. The jury could not have properly reviewed all exhibits as instructed before reaching a verdict because deliberations took only ten minutes; and,
2. Hyundai’s cross-examination of the plaintiff and a rebuttal expert unfairly prejudiced the jury.

The Connecticut Court of Appeals rejected both arguments.

First, the court ruled that the plaintiff had failed to preserve the claims of juror misconduct by not timely objecting to issues relating to delivery of exhibits to the jury room and the brief length of deliberations prior to announcing the verdict. Since it was undisputed that the jury had all exhibits prior to reaching its verdict, the court reasoned: “A short deliberation, rather than being indicative of a lack of diligence [on the jury’s part], may in fact attest to the weakness of the plaintiff’s case.”

Similarly, the court concluded that complaints relating to Hyundai’s cross-examination of the plaintiff and his rebuttal expert witness had been properly addressed by the trial court and were not preserved for appellate review.