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Donna Clements and Tom Smith Make Presentations at Paralegal Seminars

Fox Smith legal nurse consultant Donna Clements, RN, lectured to a group of paralegals at seminars in Springfield and St. Louis, Missouri, in April 2007. Donna discussed recent issues involving the impact of HIPAA and other privacy acts as well as strategies for obtaining, organizing, and evaluating medical records. Fox Smith attorney Tom Smith spoke at the St. Louis seminar about strategies and techniques for organizing and managing medical records for use at trial. Both Donna and Tom are frequent speakers to attorneys, paralegals, and medical professionals on issues dealing with risk management, pretrial discovery, and trial strategies.

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Fox Smith Obtains Summary Judgment in Multi-Million Dollar Product Liability Case

Steve Menz lost his left arm when his 1976 Ford tractor rolled over and pinned him to the ground, trapping him there for several hours. The accident occurred in 2002, and Mr. Menz and his wife sued Ford in state court the next year, asserting claims of negligence and strict product liability.

Fox Smith removed the case to federal court, arguing that the local tractor dealership sued by plaintiffs had been fraudulently joined to defeat federal jurisdiction. An initial investigation conducted by John Smith revealed that Menz had made significant changes to the accident scene and the tractor, and also that the tractor had been modified since its original sale. Jon Garside took several depositions of plaintiffs’ expert mechanical engineer, laying the groundwork for a motion to exclude the expert under federal evidence rules and a motion for summary judgment. Meanwhile, Katie Fowler prepared a motion for sanctions, arguing that the case should be dismissed as a result of plaintiffs’ destruction of evidence.

The district court granted Fox Smith’s motion for sanctions, dismissing the case with prejudice. Plaintiffs appealed that ruling, as well as the district court’s initial determination that it had jurisdiction. Although the appellate court found an insufficient record to support the district court’s sanctions ruling and remanded the case for additional proceedings, it upheld the jurisdictional ruling, keeping the case in federal court.

The Fox Smith team pushed forward with additional discovery, deposing a new expert disclosed by the plaintiffs and preparing detailed dispositive motions. These included a motion for summary judgment based on plaintiffs’ changes to the scene and modification of the tractor, as well as a motion to exclude plaintiffs’ main liability expert under Daubert. In November 2006, less than a month before trial, the district court granted the motion for summary judgment and partially granted the motion to exclude, ruling that Menz would not be able to prove his product liability case because of the changes to the tractor, his inability to prove its condition at the time of sale, and the unreliable nature of his expert’s opinions. Plaintiffs are appealing the second judgment against them.

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Ron Fox and Reggie Johnson Featured Panelists at Maritime Law Seminar

Ron Fox and Reggie Johnson will be featured panelists at the upcoming Maritime Law Seminar put on by Bar Association of Metropolitan St. Louis on October 27, 2006, in St. Louis. They will be discussing “Dealing with Claims: Personal Injuries, Wrongful Discharge, ADA, and the Federal Maritime Lien Act.” For more information on the panel and the seminar, visit www.bamsl.org.

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Table Saw Product Liability Case Dismissed

Eric Hagler’s finger was amputated while he was using a table saw. He sued Emerson Electric and The Home Depot in the Circuit Court for the City of St. Louis alleging the saw was defective. Fox Smith was hired to defend both companies and promptly removed the case to federal court, arguing Emerson had been fraudulently joined because it was not the actual manufacturer of the saw. In response, plaintiff dismissed Home Depot and the case was remanded to the state court. There, John Smith filed a motion for summary judgment establishing that Emerson could not be held liable for the accident. While the motion was pending, plaintiff dismissed the case against Emerson. Thus, without the expense of a single deposition, both of Fox Smith’s clients have been dismissed from the case.

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Good Result for Ford on Fraudulent Joinder Issue in Tractor Rollover Case

Stephen Menz drove a Ford tractor’s front left tire into a hole on his property, causing the tractor to overturn. He was pinned beneath the tractor for over eight hours and, as a result, his left arm was amputated. He sued both Ford Motor Company and the local dealer who had performed repairs on the tractor in the Circuit Court for the City of St. Louis. Ford retained Fox Smith to defend the case. John Smith and his team promptly removed the case to federal court, arguing the dealer had been fraudulently joined as a defendant because it had no duty to warn plaintiff of the purported defect in the tractor. The district court denied plaintiff’s motion to remand and eventually dismissed the case after Fox Smith discovered the scene of the accident, as well as the tractor itself, had been substantially modified before suit was filed.

Jon Garside and Katie Fowler handled the appeal to the 8th Circuit. Although the court remanded the case for further findings on the spoliation issue, it also held that a local repair company that does not create the purported defect in the product does not have a duty to warn about the defect, and that such an entity is fraudulently joined. Thus, the addition of a local dealer as a defendant in a case filed in a state court against an out-of-state product manufacturer should not serve as a bar to removal of the case to federal court.

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Fox Smith Staff Elected to Legal Organization Posts

The St. Louis Legal Assistants’ organization voted and approved a proposed slate of 2006-2007 officers on March 8, 2006. The new officers include three paralegals from Fox Smith, LLC:

Heather Firestone will be the incoming Secretary. Heather joined Fox Smith in May 2005. She has more than five years experience in litigation and holds an Applied Science Degree in Legal Studies.

Pat Mangum will be Treasurer for the upcoming year as well as the chair for the Community and Social Affairs Committee. Pat joined Fox Smith in February 2005. She has over 25 years of legal experience.

Donna Clements will chair the Programs and Education Committee and serve as the BAMSL liaison. Donna holds a BA in Legal Studies with Certification in Paralegal Studies and is a Registered Nurse. Donna joined Fox Smith in August 2005. She has over three years experience as a legal nurse consultant in addition to over 20 years in nursing.

Additionally, Sherry Hurst, the Administrator at Fox Smith, is the President-Elect of the Gateway Chapter of the Association of Legal Administrators for the 2006-2007 year. Sherry has been the Administrator at Fox Smith since October 2003. She has over 15 years experience as a legal administrator and over 25 years of overall legal experience. She holds a double Master’s degree in Business and Human Resource Development.

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Michael Donelson Joins Fox Smith

Fox Smith is please to announce that Michael Donelson recently joined the firm. Mike practices civil litigation with an emphasis on professional liability, personal injury, and product liability defense. Prior to completing law school, Mike worked for eleven years as a liability analyst in the insurance industry, the last six years of which were with a major physician’s professional liability carrier. After completing law school, Mike began his legal career with a well-respected Illinois law firm, where he represented both defendants and plaintiffs in a wide range of litigation matters.

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Fox Smith Hosts its First Annual Employment Law Seminar

Fox Smith, LLC hosted its first annual Employment Law Seminar on November 18, 2005, at the Renaissance Grand Hotel in St. Louis. Richard B. Korn addressed the group of attorneys, business owners, and Human Resource professionals on “Managing Your Employees Under The Federal Anti-Discrimination Laws.” Reginald C. Johnson followed by updating attendees on “Classification of Your Employees: The Dilemma of Overtime Payment and Deductions from Exempt Employees.” A common type of employment litigation stems from non-compete agreements. Dana W. Tucker spoke on “One Up On The Competition: Your Company and Covenants Not-To-Compete.” Jonathan H. Garside rounded out the day addressing the rising numbers of litigation – “Over There and Back Again: The Rights of Returning Servicemembers Under Federal Law.”

The Employment Law Section of Fox Smith, LLC will be circulating a periodic Employment Law Update newsletter via e-mail for those attendees who indicated interest. All others interested in receiving this newsletter may send their request to shurst@foxsmith.com.

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Michael Downey Selected as a Member of the Inaugural Class of Fellows for NIFTEP

Michael Downey has been selected as a member of the inaugural class of fellows for First Annual National Institute for the Teaching of Ethics and Professionalism (NIFTEP) workshop on teaching ethics and professionalism. NIFTEP is a consortium of five nationally-recognized law school centers on ethics and professionalism. The seminar, to be held in Atlanta, will involve approximately 20 speakers and participants and provide a forum to improve the teaching of ethics and professionalism. You can find out more here.

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Insurer Prevails Against Additional Insured In Coverage Dispute Stemming From Underlying Maritime Action

In an insurance coverage case arising from a maritime personal injury and limitation action, Fox Smith attorneys obtained summary judgment for the insurer from the United States District Court for the Western District of Kentucky, while at the same time successfully opposing a motion for summary judgment from an additional insured. Related to a maritime injury action underlying “Martin Marietta Materials, Inc. v. Zurich American Insurance Co.,” Martin Marietta, though not a party to the maritime case, had nevertheless filed a petition for exoneration or limitation pursuant to federal statute. Fox Smith’s Bart Sullivan represented the defendant parties in the maritime case (resolved through settlement in Kentucky state court) and in the limitation action. In 2005, the Western District court held that Martin Marietta was a named insured on defendants’ insurance policy, but denied Martin Marietta’s claims for indemnity and attorneys’ fees.

Martin Marietta then sued the defendants’ insurer, Zurich American Insurance Co. (represented by Fox Smith attorney Bart Sullivan) for costs and attorneys’ fees related to the limitation action and for damages stemming from Zurich’s alleged refusal to provide a defense. Both Martin Marietta and Zurich filed motions for summary judgment. Martin Marietta claimed it was entitled to a defense, its costs and attorneys’ fees relating to the limitation action, and damages. Bart Sullivan, on behalf of Zurich, argued that Martin Marietta’s claims against Zurich were never ripe because the underlying injury plaintiff never sued Martin Marietta, that Martin Marietta’s claims and motion were barred by the commencement provision of the insurance policy, and that Martin Marietta had in place insurance that covered it in any event.

The Western District of Kentucky court, in March 2006, ruled in favor of Zurich and against Martin Marietta on both motions. It noted, as argued by Bart, that the insurance policy at issue included a one-year limitation period requiring all suits relating to any claim on the policy to be commenced within one year from the denial of coverage. Here, the alleged denial of coverage took place in August 2003, but Martin Marietta did not bring suit against Zurich until May 2005. Thus, under applicable state substantive law, Martin Marietta’s claims for damages, indemnification, and attorneys’ fees were time-barred. Accordingly, the court held the commencement provision precluded the suit brought by Martin Marietta against Zurich.