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January 2003, Volume 23
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EMPLOYMENT LAW |
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ADEA
Proffered Reason For Termination Not Pretextual
RETALIATION
Claim Failed Where Professor Failed to Show Connection Between Complaints and Retaliation
No Retaliation Without Knowledge of Protected Activity
DAMAGES
Front Pay Not Appropriate When Employee Incarcerated
RACIAL DISCRIMINATION
Prima Facie Case Must Be Met Before Pretext at Issue
Lateral Transfer to Uncomfortable Location Not Racial Discrimination.
Review of Order Entering Judgment as Matter of Law Need Not Follow McDonnell-Douglas Approach
RACE AND NATIONAL ORIGIN
Attempting to Sabotage a Promotion is Evidence of Pretext
REHABILITATION ACT
Person Who Cannot Perform Essential Functions of Employment Not Qualified Individual
EEOC
Notice To Subsidiary Corporation Not Notice To Parent Corporation
ADA
Sending Employee For Hearing Test Does Not Equate To Belief Of Disability
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GENERAL TORTS |
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CONTRIBUTORY NEGLIGENCE
Plaintiff ’s Employer Properly Considered In Division Of Fault Regarding Joint And Several Liability
DUTY
Duty Of Premises Owner To Guard Against Foreseeable Risks Of Injury To Children
Duty Of Premises Owner And Operator To Protect Against Reasonably Foreseeable Construction Site Risks Is Nondelegable
Municipal Tort Immunity--No Duty Owed To Pedestrian Where Injuries Were Unforeseeable
CAUSATION
Hospital’s Actions Not Proximate Cause Of Patient’s Death
Question of Fact Regarding Cause of Pedestrian’s Death Where Defendant Managed, Maintained, And Controlled Street Light
EVIDENCE
Standard Of Care Testimony Properly Struck Where Expert Lacked Requisite Certification
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INSURANCE COVERAGE |
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Coverage Barred to Law Firm for Defamation Suit Under CGL Policy’s Professional Services Exclusion
Court Rejects Argument That Carrier Anticipatorily Breached Contract By Denying Defense Before The Filing Of The Underlying Suit
Notice To Carrier Of Underinsured Motorists Claim Satisfies Provision Requiring Demand For Arbitration
Carrier Had No Duty To Defend Insured Transportation Services Company In Underlying Suit Alleging Sexual Assault Of Passenger And Negligence
CGL Carrier, Not Professional Liability Carrier, Has Duty To Defend Insured For Negligent Hiring Action
Section 143a-2 Of Illinois Insurance Code Applicable Only To Rejection Of Uninsured Motorist Coverage, Not Underinsured Motorist Coverage
Failure To Maintain Proof Of Mailing Prohibits Carrier From Relying On Policy Amendment
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INTERNATIONAL LAW |
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PERSONAL JURISDICTION
Court Denies French Defendant’s Motion To Dismiss For Lack Of Personal Jurisdiction Because Of Direct Contacts With U.S. And Control Over U.S. Based Subsidiary
FORUM NON CONVENIENS
Court Denies Italian Product Manufacturer’s Motion To Transfer Litigation To Italy Because New York Forum Was Not Inconvenient
Doctrine of Forum Non Conveniens Applies to Action Brought in the U.S. to Enforce a Foreign Arbitration Award
INTERNATIONAL SERVICE OF PROCESS
The Hague Convention On Service Of Process Abroad Does Not Authorize Service Of Process Via Federal Express
DOMESTIC DISCOVERY FOR USE IN FOREIGN LITIGATION
Taiwanese Corporation Not Permitted To Compel Discovery In U.S. For Use In Chinese and Taiwanese Litigation
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TOXIC TORTS/ENVIRONMENT |
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ASBESTOS LITIGATION
Supplier Defense Applied to Asbestos Supplier in Delaware
CLEAN WATER ACT
Forest Service Liable for Point Source Pollution in Aerial Spraying
Specificity Notice Requirements for Clean Water Act Violations
Spraying to Eradicate Mosquitoes With West Nile Virus Not Violation of Clean Water Act
Ninth Circuit Harmonizes Clean Water Act and Federal Powers Act
FEDERAL TORT CLAIMS ACT
United States Held Accountable for Contamination of Private Residence
CERCLA
Ninth Circuit Certifies Two Questions to Alaska Supreme Court
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PRODUCT LAW |
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SPOLIATION OF EVIDENCE
Exclusivity Of Workers Compensation Act Remedies Do Not Affect Employee’s Right To Sue Employer For Spoliation Of Evidence
STATUTORY CONSTRUCTION
Grocery Store Not Considered “Commercial Party” Under State’s Product Liability Statute and Can Maintain Products Liability Action Against Faulty Refrigeration Company
PROCEDURAL CONSIDERATIONS
Statute Of Limitations On Medical Products Liability Action Begins To Run On Date Patient Learned Device Was Implanted, Not Date Of Injury
No Tolling Of Iowa Statue Of Repose For Minor
EVIDENCE
Florida Maintains Presumption Of Product Failure
Indiana Federal Court Required Plaintiff To Produce Actual Automobile Tire For Inspection To Maintain Products Liability Suit
WHAT IS A SALE OF A PRODUCT?
Distribution Of Human Bone Tissue To Hospital Not Sale Of A Product
FEDERAL PREEMPTION
Compliance With Warnings Created By Federal Insecticide, Fungicide, And Rodenticide Act Preempt State Law Duty To Warn Cases
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BUSINESS LAW |
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CONTRACT LAW
Recovery of Damages
Attorneys’ Fees Cannot Be Awarded In Lieu of Punitive Damages in Breach of Contract Action
Plaintiff Allowed To Pursue Claim For Economic Damages Under Information Provider Exception To Moorman Doctrine
FINANCING AND COLLECTION LAW
Tender of Automobile Retail Installment Contract Containing Separate TILA Disclosure Section to Consumer at Time of Automobile Purchase is Valid
Rescission Under TILA May Be Conditioned Upon Debtors’Tender Of Principal Loan Amount To Creditor
UNIFORM FRAUDULENT TRANSFER ACT
Transfer By Insolvent Debtor Used To Pay Creditors Remains Fraudulent
MECHANICS’ LIENS
Section 23 Of Mechanics Lien Act Applies To Hauling Of Debris And Delivery Of Raw Materials To Jobsite Which Are Necessary To Complete Construction.
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NURSING HOME LAW
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PRIVATE RIGHT OF ACTION
Descendants of Nursing Home Resident Can Bring Action Under Illinois Nursing Home Care Act Pursuant To Illinois Survival Act
No Private Right Of Action Exists Under Federal Nursing Home Reform Act
DUTY
Trustee Owed No Duty Of Care To Washington Nursing Home Resident
Widow of Nursing Home Resident Owed No Duty To Stepson To Include Him In Wrongful Death Lawsuit
BREACH
Nursing Records Revealed That Facility Did Not Beach Standard Of Care
Whether Nursing Home Agency Committed Elder Abuse By Failing To Keep Appointment With Elderly Woman Was Question For Jury
Louisiana Appellate Court Awards The Plaintiff Survival Damages
PROXIMATE CAUSE
Nursing Home’s Conduct Was Proximate Cause Of Resident’s Death, Not State’s Department of Human Resources
Nursing Home’s Negligent Use of Side Rails Proximately Caused Woman’s Death
PRE-TRIAL PROCEDURE
Sexual Abuse Allegations Tolled By Resident’s Dementia
Florida Nursing Home Not Required To Produce Employees’ Entire Personnel File
NOTABLE JUDGMENTS AND VERDICTS
Louisiana Appeal Court Reverses $350,000 Judgment
Alabama Jury Awards $5.35 Million In Ant-Bite Case
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