The Voice^TM

DRI for Life strives to provide both educational opportunities and activities focused on healthy living, including both mental and physical health. Many seminars this year have included opportunities for morning meetups to run or walk as a group. In addition to giving attendees the chance to network while improving their health, these planned meetings offer safety in numbers for some that might not otherwise feel comfortable heading out in the early morning alone.  

DRI seminars are not the only place members can connect with one another; there are now numerous DRI members connected on Peloton by adding the #DRIFoundation designation to their profiles - please join us if you are a Peloton user! 

One of the post-seminar virtual CLE offerings to which each seminar attendee gains access is happiness coach Rebecca Morrison. Don’t miss the chance to hear her inspiring message after attending any DRI seminar this year. 

As I am writing this article, so much in the world seems to hang in the balance, and I am struck by a quote from Ukrainian President Volodymyr Zelenskyy’s recent speech given via video link to the House of Commons. He evoked the British playwright William Shakespeare by stating that the Russia-Ukraine war has posed the question "To be or not to be?" He added, "I can give you a definitive answer: It's definitely to be.” As we look ahead to the future, I hope that we all choose “to be” and that DRI for Life, DRI Cares and the DRI Foundation help us in our endeavors.  

Sara M. Turner of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC is the Chair of DRI For Life.

DRI in-person seminars are back, full stop. Starting with Women in the Law in Austin in January, Medical Liability and Health Care Law, Product Liability and Litigation Skills in Las Vegas in February, Business Litigation, Intellectual Property and Insurance Coverage in Houston in March, Toxic Torts in Atlanta in March and running through Civil Rights and Governmental Tort Liability in Minneapolis in April, the seminars are happening, attendance is good, and the members are happy. The schedule is full for the rest of the year, and we expect participation and attendance to continue to increase. 

This year, I have the privilege of serving as the Vice-Chair of the Membership Committee.  Membership efforts have been a part of my DRI career for longer than I care to admit. This is for a reason, for in my view without a successful Membership Committee, quite frankly there is no DRI. All of DRI’s successes (and there are many) flow through the ability to recruit, engage and retain new members. Baxter Drennon, the Membership Committee Chair, shares this view and he and I are committed to making the Committee as effective as possible this year. We are here to help. 

Last year we began a new initiative, designating May as “Membership Month.”  We encouraged all members to “Just Get One,” emphasizing that with a little help from a lot of members we would achieve success. The program was a smash hit, and we are having another go at it. We are asking all members, including those in leadership positions, to focus on new membership recruitment in May. The DRI Membership Staff, led by Tom Foley, Senior Director Vice President of Engagement, will be sharing details later this month and all throughout the month of May. There will be emails, social media posts, testimonials, and recruitment incentives.  

With the return of a full in-person seminar schedule, the opportunity for new member recruitment is high. People are eager to get together again. We can and should provide them with a reason to do so. Of course, seminars are not the only reason to join DRI. Writing opportunities in For the Defense, The Voice and The Brief Case abound. The chance to become involved and move into leadership positions is there for the taking. Perhaps most important, the ability to connect with other defense lawyers and to develop real, personal and valuable relationships remains one of DRI’s hallmark qualities. These are just some of the “selling points” for DRI. Each of us has a DRI story. Baxter, I and the members of the Membership Committee ask you to think about yours, and to use it to bring the benefits of DRI to others. Please help us spread the word this month, share a post and tell your story on what DRI means to you.  We are counting on you. 

Many thanks. Tony Sbarra 

Tony Sbarra is a Shareholder at Hermes, Netburn, O'Connor & Spearing, P.C., where he concentrates his practice in civil litigation with an emphasis on products liability and toxic torts.

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 2022 DRI Annual Meeting in Philadelphia, October 26–28. To be considered for any position, a DRI member must first file a Declaration of Candidacy form. For more information, please contact Diana Ochoa at DRI headquarters: dochoa@dri.org or 312.698.6228. Declarations are due by July 1, 2022.

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.

Keep an eye out for our upcoming awards brochure to read about 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, 2022. Winners will be announced at the Celebration of Leadership on Friday, October 28, held in conjunction with DRI’s Annual Meeting in Philadelphia, Pennsylvania, from October 26-29, 2022. In addition, DRI will recognize award recipients in The Voice and through press releases to national and local media.

Amicus Update: AL Filing Supports Pharma Manufacturers  

The DRI Amicus Committee recently elected to join the brief of the Alabama Defense Lawyers Association in Blackburn v. Shire U.S. Inc. (No. 1210140), a pharmaceutical failure-to-warn case in which the Eleventh Circuit submitted certified questions to the Alabama Supreme Court regarding the learned intermediary doctrine. The committee felt that DRI’s participation would provide context for the doctrine, which is largely uniform across the states, and demonstrate how adopting the standards suggested by the Eleventh Circuit (i.e., expanding the scope of the doctrine to include a duty to provide instructions about how to mitigate warned-of risks) would make Alabama an outlier in a way that would hurt pharmaceutical manufacturers nationwide. The brief, filed April 14, was authored by DRI members Fred Helmsing and Archie Reeves of McDowell Knight in Mobile.    

Cashen was asked to try the case two weeks before trial started, and his defense resulted in a unanimous verdict after approximately 60 minutes of deliberation. 

The case stemmed from the tragic deaths of two certified aerial work platform (AWP) operators who were power washing and painting a Maricopa County jail. The AWP tipped over while being operated on a slope with the decedents 65 feet in the air. 

The plaintiffs claimed the AWP should have been equipped with an interlock device, which would have prevented boom or drive functions while on a slope, and which they said would have prevented the accident. Through the two-week trial, including testimony from several witnesses and experts, Cashen was able to show operator error resulted in the fatalities.  

“Words can’t capture how thankful I am to Chris Cashen and Dinsmore,” said Terex Vice President and Deputy General Counsel James Celentano. “I’ve come across many lawyers in my 25 years of practice, and Chris falls into a class that is simply exceptional.” 

Terex Senior Vice President, General Counsel and Secretary Scott Posner echoed those sentiments. 

"We are very happy and thankful for the efforts put forth by Chris Cashen and his team at Dinsmore,” he said. “Chris embodies what it means to have a partnership with your outside counsel. He did an outstanding job under very difficult circumstances. This was not the first time we have had a great result with Chris, and I know it will not be the last. Terex looks forward to many future successes with Chris and Dinsmore at our side." 

Cashen’s work was aided by Dinsmore associate Kyle Bunnell. 

This is Cashen’s second significant victory for Genie. In 2020, he successfully defended the company against a $69 million claim in the first entrapment case ever tried to verdict. 

Gabrielle Smith, Individually and as Administratix of the Estate of Orlando C. Hall, Deceased v. Schwarze Industries, Inc  

Date: March 2022
Party represented: Schwarze Industries, Inc.
Venue: State Court of Gwinnett
State: Georgia
Length of trial: 5 days
Type of case: Wrongful Death Product Liability  

Verdict/award:  

Verdict in favor of Plaintiff in the amount of $4,250,000 with 49% fault allocated to decedent Orlando Hall and 51% allocated to Schwarze. This resulted in a net verdict of $2,167,500 in compensatory damages and no punitive damages.  

WWHGD's trial team of Brannon Arnold and Rick Sager obtained a jury verdict in a difficult and hard-fought wrongful death product liability trial in Gwinnett County this week. The case arose out of an incident that occurred on September 7, 2017, when the Plaintiff’s Decedent was attempting to troubleshoot an issue on a street sweeper designed and manufactured by the firm’s client. The Decedent left the engine running, climbed the side of the street sweeper, wedged himself into a narrow compartment not meant for access behind a lockable door and was ultimately crushed to death by inadvertent activation of the conveyor when his leg contacted an exterior control that Plaintiff claimed should have been guarded. Plaintiff sought claims in the amount of $25 million alleging design defect, failure to warn, and punitive damages. After a 5-day trial and a day and a half of deliberation, the jury awarded $4,250,000 and no punitive damages. The jury further found that the Decedent was 49% at fault for the accident which reduced the net recovery to $2,167,500. This final judgment was only 8% of the $25 million ask – a very favorable result for the firm’s client.

DRI member John Crawford of Lommen Abdo, with offices in Minneapolis and Hudson, Wisconsin, obtained a defense verdict in a wrongful-death lawsuit on March 1, 2022.  Decedent in the case died when he drove his motorcycle into an asphalt paver in the early morning hours when it was still dark.  After entering into Pierringer settlements with the road construction prime contractor and a subcontractor responsible for signage and traffic safety, the trustee for Decedent’s heirs proceeded to trial against John Crawford’s client, the subcontractor which owned the paver and was responsible for paving the road.

After a five-day trial in Dakota County District Court in Hastings, Minnesota, the jury returned a verdict finding Decedent 25% at fault, the prime contractor 45% at fault, the subcontractor responsible for signage and traffic safety 15% at fault, and the asphalt subcontractor 15% at fault.

Since Decedent was more at fault than the asphalt subcontractor, judgment was entered in favor of the subcontractor pursuant to Minn. Stat. §604.01.  During trial, the jury was informed that Decedent’s heirs would recover nothing from the asphalt subcontractor if Decedent was more at fault than that subcontractor.

On March 23, 2022, after a two-week trial, Frost Brown Todd obtained a defense verdict from a Carroll County, Kentucky jury in a case involving a serious bus accident.  Plaintiffs criticized the design of the bus roof and body tie-downs and claimed enhancement of injuries because of the design. The bus manufacturer countered that the bus is the safest, most regulated vehicle on the road. The roof of the subject bus exceeded the requirement of Federal Motor Vehicle Safety Standard 220 by approximately 50% as measured by the permissible deflection, and 30% as measured by the required load. The bus manufacturer also introduced evidence that the non-party bus driver was driving too fast for the conditions, and that no bus roof could have withstood the forces involved in the accident.   
DRI members Nick Pappas and Allison Weyand of Frost Brown Todd were lead trial counsel for the bus manufacturer and Elaine Stoll of Ulmer was appellate counsel at trial. 

Ninth Circuit Affirms Landmark Victory for Burke Team and Lincoln Benefit Life Company  

The Burke, Williams & Sorensen, LLP Insurance Litigation team has prevailed on behalf of client Lincoln Benefit Life Company in the Ninth Circuit Court of Appeals by securing a high impact holding for the long term care insurance (LTC) insurance industry in a case of first impression -- Lincoln Benefit Life Company v. Alexander and Claire Dallal, 2022 WL 605709 (9th Cir. 2022). The insurer first obtained a verdict in August 2018, when a Southern California federal jury awarded nearly a million dollars in fraud and punitive damages against married policyholders who engaged in a 12-year scheme to defraud Lincoln Benefit client out of LTC benefits. In November 2020 and March 2021, a Central District of California Court Judge issued equitable rulings in Lincoln Benefit’s favor by finding: (1) Mr. Dallal had not been entitled to LTC benefits since 2004, and (2) the joint LTC policy under which the Dallals had fraudulently procured benefits should be voided as of July 29, 2016. The Ninth Circuit on March 1, 2022, has now affirmed the jury verdict and the equitable findings of the Court. Burke partner and lead trial attorney Melissa M. Cowan opined, “The insurance industry has been waiting a long time for this kind of ruling. The Ninth Circuit’s decision upholding the significant jury verdict and the equitable cancellation of a long-term care insurance contract for a fraudulent claim is the first of its kind. These results send a strong message that judges and juries will not tolerate fraud.” The Dallal holding has the potential to change the landscape of LTC insurance law and gives the industry another tool to help pursue fraudsters. Trial team co-chair Keiko J. Kojima added, “The Ninth Circuit’s decision reinforces the power of equity. A district court has the authority to void an insurance policy based on an insured’s claim fraud, even if the policy does not incorporate a ‘fraud cancellation’ provision.” 

Keep The Defense Wins Coming!
Please send 250–500-word summaries of your “wins,” including the case name, your firm name, your firm position, city of practice, and email address, in Word format, along with a recent color photo as an attachment (.jpg or .tiff), highest resolution file possible, to DefenseWins@dri.org. Please note that DRI membership is a prerequisite to be listed in “And the Defense Wins,” and it may take several weeks for The Voice to publish your win.

DRI member Christopher Jeffries, also of Kramon & Graham, was named to the 2022 listing of Leaders in Law. Chris joins DRI member and past honoree, Ezra Gollogly. The Leaders in Law award honors a select group of Maryland legal professionals whose dedication to their occupation and to their communities deserves particular recognition. The award pays tribute to all the ways in which legal professionals are serving businesses, clients and individuals across Maryland and building a stronger community. Winners were selected by an outside panel of legal and business leaders. Mr. Jeffries has been a DRI member since 2014.


Pictured, L to R: Jeffries, Gollogy

DRI member Chalankis Brown has been named the newest Member at Ball, Ball, Matthews & Novak. Chalankis has been a DRI member since 2017. Chalankis Brown is a Partner in the Montgomery office and practices in the areas of civil defense litigation, insurance litigation, medical malpractice defense, and workers compensation. Mr. Brown has been a DRI member since 2017.

Freeman Mathis & Gary, LLP, a leading nationwide litigation law firm, is pleased to announce that DRI member Elissa Haynes has joined the Firm as a partner in the Atlanta office. Ms. Haynes concentrates her practice in both trial and appellate law. Ms. Haynes’s trial practice is focused primarily on defending claims involving negligent security, premises liability, personal/catastrophic injuries, wrongful death, and religious institution liability. She also serves as Chair of the Georgia Defense Lawyers Association’s Amicus Curiae Committee. Ms. Haynes has been a DRI member since 2015.

Burch & Cracchiolo, P.A. welcomes DRI member Rosary Hernandez as a partner. In practice for 29 years, Rosary Hernandez focuses on commercial and business litigation, professional liability defense, construction law, and tort defense including tortious interference and related claims. Ms. Hernandez has been a DRI member since 2004 and currently serves on DRI’s Board of Directors as a National Director.

National law firm Foley & Mansfield announced the addition of DRI member Shelley Napolitano as a litigation partner in its New Orleans office. Her practice is focused in the areas of asbestos and talc litigation, and she will be a member of the firm’s Toxic Tort, Environmental, and Product Liability Practice Groups. Ms. Napolitano has been a DRI member since 2014.

Foley & Mansfield also announced that partner and DRI member, Elizabeth Sorenson Brotten has been tapped to lead the firm’s Minneapolis office as Managing Partner. Liz is an established litigator with expertise in product liability and mass tort/toxic tort litigation. She is a member of the firm’s Executive Committee and co-chair of the Product Liability practice group. Ms. Sorenson Brotten has been a DRI member since 2009.

If you have a recent achievement or recognition, you would like featured, email your news to membership@dri.org. Please note that DRI reserves the right to review all accomplishments to ensure they are adequate for publishing. All submissions will be reviewed for relevance and compliance with DRI’s mission. Submissions may be edited to conform with our standards, and space limitations.

The DRI Mid, Atlantic, and Northeast Joint Regional Meeting was held in Austin April 28-30.
The meeting was led by DRI Regional Directors, Tom Maroney (Atlantic Region Director), Rebecca Nickelson (Mid Region Director), Jim Craven (Northeast Region Director), and DRI Second Vice President, Anne Talcott.  

The Atlantic, Mid and Northeast Regions held their Super Regional Meeting in Austin, Texas on April 29-30.  For their public service project, attendees donated money and 60 snack kits to Caritas of Austin. The snack kits included granola bars, water, vitamin C powder, nuts, fruit snacks, meat sticks and crackers.  These snack kits will be passed out by Caritas of Austin to homeless individuals.

Caritas of Austin believes that when every person has a stable place to call home, they can realize their full potential and contribute to the community.  Morgan DuBose, Events and Corporate Partnership Coordinator, attended the meeting.  She told attendees about the innovative, personalized and proven approach Caritas of Austin uses to build wellbeing and help end homelessness to create a more vibrant Austin for everyone.  They use a housing first approach and also support individuals with food, education and employment.  They are currently working on a facility called Espera Rutland where they will have 171 studio apartments that are 100% targeted to people experiencing homelessness.