CKS & S Reporter

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Winter 2008, Volume 42

	EMPLOYMENT LAW
	GENERAL TORTS
	INSURANCE COVERAGE
	INTERNATIONAL LAW
	PRODUCT LAW
	BUSINESS LAW
	NURSING HOME LAW

EMPLOYMENT LAW

FMLA
Fact Issues Surrounding Constructive Notice of Need for FMLA Leave and the Existence of a Serious Health Condition Led to Reversal of Summary Judgment in Favor of Employer

TITLE VII
Plaintiff’s Second Sexual Harassment and Retaliation Claim Lacks a Prima Facie Case

Termination of Teenage Employee for Complaints of Harassment Made by a Parent on Teenager’s Behalf Constitutes Actionable Retaliation, and the Defendant’s Procedures for Reporting Harassment Were Insufficient for an Affirmative Defense against the Claim

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GENERAL TORTS

DAMAGES
Medicare Payments Excluded As Collateral Source

SETTLEMENT
Worker’s Compensation Lien Must Be Explicitly Waived Or Statutory Right To Recover Prevails

SETTLEMENT
Worker’s Compensation Lien Cannot Be Resolved Without Consent Of Lienholder

EVIDENCE
Expiration Of Underlying Statute Of Limitation Precludes Negligent Spoliation Claim

MEDICAL MALPRACTICE
Rule 2-622 Affidavit To Disclose Identity of Author

MEDICAL MALPRACTICE DAMAGES CAP
Lower Court’s Ruling On Illinois’ Medical Malpractice Damages Cap

SERVICE OF PROCESS
Time Between Voluntary Dismissal and Refiling of Complaint Not Include

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INSURANCE COVERAGE

Even Where There is a Selective Tender, All Primary Coverage Must Be Exhausted Before Reaching Excess Coverage

An Excess Carrier Can Have a Duty to Another Excess Carrier

Insured’s Delay of 13 Months in Notifying Carrier of Underlying Claims and Suit Was Not Reasonable

Exclusion Applies to Negate Coverage for Defamation Claim

Employer Exclusion in Automobile Liability Policy Violated Public Policy

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INTERNATIONAL LAW

PERSONAL JURISDICTION
Federal Rules Rather Than Foreign Rules Applied to Jurisdictional Discovery

Competitor’s Maintenance of Website Containing Alleged Defamatory Remarks Were Not Enough to Support Minimum Contacts for Personal Jurisdiction

SUBJECT MATTER JURISDICTION
U.S. Court Had No Jurisdiction to Collaterally Attack Foreign Arbitration Awards

SERVICE OF PROCESS
Service of Process Upon Bahamian Corporations Quashed, Personal Jurisdiction Found Over Non-immigrant Resident Defendants

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PRODUCT LAW

PRODUCTS LIABILITY IN CASES INVOLVING VEHICLES
Tractor Retailer Entitled To Summary Judgment When Plaintiff Failed To Produce Credible Expert Testimony To Support Plaintiff’s Causes Of Action

District Court Properly Granted A Directed Verdict For An Automobile Manufacturer When Plaintiff Failed To Produce Evidence Demonstrating A Defect At The Time The Vehicle Left The Manufacturer’s Control

Compliance With Federal Motor Vehicles Safety Standard 205 Did Not Preempt Plaintiffs’ Design Defect Claims

LIABILITY OF A RETAILER
Retailer Not Considered “Manufacturer” When Retailer Merely Assembled Components Pursuant To Instructions, But Retailer Could Still Be Liable As A Nonmanufacturing Seller

MEDICAL DEVICES
Prosthesis Manufacturer Properly Granted Summary Judgment Against Plaintiff’s Claim Of Failure To Provide Adequate Warnings On The Basis Of Federal Preemption

PRODUCTS LIABILITY CLAIMS RELATED TO FIREARMS
Arizona Appellate Court Refuses To Adopt Hindsight Test Warning Defect Case Brought Against Taser Manufacturer

EXPERT TESTIMONY
Kentucky Trial Court Erred When It Excluded An Expert’s Opinions After Trial And Awarded Defendant A Directed Verdict

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BUSINESS LAW

CORPORATE LAW
Sanctions Not Warranted Against Litigant Attempting To Pierce Corporate Veil And Hold Incorporator of Corporation Personally Liable As Corporation’s Alter-Ego

COMMERCIAL LAW
Real Estate Brokerage Firm’s Actions In Suit By Prospective Purchaser For Intentional Interference With Prospective Business Advantage Found To Fall Within Privilege of Competition

COMMERCIAL LAW
Contractor Who Performed General Construction Work For Homeowners Was Subject To The Home Repair And Remodeling Act

REAL ESTATE LAW
City Failed To Make Good Faith Effort To Agree On Just Compensation With Landowner

Before Exercising Its Rights Under The Eminent Domain Act

REAL ESTATE LAW
Cause Of Action For Specific Performance Not Allowed Due To Lack of Enforceable Real Estate Contract

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NURSING HOME LAW

NEGLIGENCE VS. MEDICAL MALPRACTICE
A Louisiana Appellate Court Held that a Nursing Home’s Failure to Monitor a Patient Prone to Choking While Eating Constituted a Medical Malpractice Claim Rather than a Negligence Claim

SUMMARY JUDGMENT
A New York Court Held that Testimony by Plaintiff’s Expert Doctor in Wrongful Death Suit Created Material Issues of Fact Sufficient to Deny Summary Judgment for Both the Plaintiff and Defendant Nursing Home

HIP FRACTURE
A Louisiana Appellate Court Held that Expert & Lay Testimony Created a Genuine Issue of Material Fact Regarding a Resident’s Broken Hip Despite the Nursing Home Having No Evidence of Any Fall or Dropping Incident

REPEATED FALLS & CAUSATION EXPERTS
A Texas Appellate Court Held that a Causation Expert’s Opinion Regarding the Effects of Multiple Falls was Sufficient to Show a Causal Relationship Between Breaches in the Standard of Care and a Resident’s Death

JURY DEFERENCE
A Mississippi Court Deferred to a Jury’s Verdict and Held that a Nursing Home Was Not Entitled to Judgment Despite the Verdict or a New Trial

KATRINA – NEGLIGENT EVACUATION
A Louisiana Appellate Court Reversed a Trial Court’s Ruling that a Plaintiff’s Negligence Action Against their Mother’s Nursing Based on her Death During the Evacuation of New Orleans was not a Medical Malpractice Action

KATRINA – NEGLIGENT FAILURE TO EVACUATE
Proprietors of St. Rita’s Nursing Home Speak Publicly Regarding Their Ordeal, Their Nursing Home, Katrina, and Their Trial and Acquittal

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