What’s the Going Rate to Buy a Witness? About $10,000 an Hour…

Parties are free to pay fact witnesses exorbitant fees, according to New York’s highest court, so long as the jury is alerted to the potential for bias.  In a recent decision before the New York Appellate Division, an orthopedic surgeon received $10,000 to testify against a woman he treated after she allegedly fell while walking her dog in Peekskill, New York.  Notably, the surgeon did not provide expert advice, rather he received the hefty sum to merely recount for the jury his conversations …

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Rutgers: Don’t Look at Me…My Lawyer Made Me Do It

As is so often the case, with mounting pressure and criticism comes finger-pointing. In the midst of a well-publicized scandal, Rutgers University is now suggesting that poor advice from its outside counsel led to a series of infamous decisions regarding its former basketball coach.  According to reports, as Rutgers’ athletic director Tim Pernetti resigned Friday amid the scandal over men’s basketball coach Mike Rice’s unorthodox practices, he blamed the school administration for following a “process” that allowed Rice to stay on-board. With its back …

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Serious Sanctions Imposed for Deleting a Facebook Account

A New Jersey federal judge recently ruled that a plaintiff’s deletion of his Facebook account amounted to the sanctionable destruction of evidence. This decision has major implications on social media discovery in all litigation. Some (Law360 – subscription required) experts believe that this result proves that “social media access is fair game in litigation and that workers who try to conceal their online lives will pay a high price.”

In Gatto v. United Air Lines, Inc., the plaintiff sought damages arising from personal injuries allegedly …

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When Professional Misconduct = Unfair Trade Practices

The California Court of Appeals recently concluded that an attorney’s professional malpractice and ethical violations may give rise to liability for unfair trade practices.  In the underlying dispute, attorney Martin Guajardo, the sole shareholder in his own law firm, sold his practice because he faced disciplinary action brought by the state bar.  Although Attorney Guajardo ultimately resigned from the bar, he continued to practice law following the sale of his firm.  The People of the State of California filed a complaint against Guajardo, …

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A Case Study for Employers on Whistleblower Laws

Whistleblower laws are generally designed to prohibit employers from taking retaliatory action against an employee because the employee engages in protected conduct. For example, an employer may not retaliate against an employee for disclosing the employer’s violation of laws or ethics, providing testimony about the employer, or refusing to engage in inappropriate conduct. In a recent decision, the New Jersey Superior Court considered whether an employee’s reliance upon a professional code of ethics not applicable to his employer is sufficient to support a claim under …

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Hollywood Heist Leads to Cyber Liability Suit

The fact pattern sounds like it was ripped from the pages of a Hollywood screenplay.  Two criminals back a trailer to a pharmaceutical warehouse and cut a hole in the ceiling of the facility.  They proceed to utilize the company’s own forklifts to load over $80 million in prescription drugs into the trailer and exit without detection on any security cameras.  All told, authorities estimate that the heist represents the largest known theft of prescription drugs in US history.  The last scene in this …

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A Disclaimer of Disclaimers – Limits on Limitation of Liability

Many classes of professionals utilize engagement letters with limitation of liability language.  For example, accountants, real estate agents and home inspectors often include in their engagements a hold harmless or other clause with the goal of limiting potential damages.  Such a clause will establish the extent of exposure, if any, that the professional can be held liable for should problems arise with the engagement.  The question of whether the clause is enforceable is state specific and somewhat unpredictable.

A recent South Carolina decision provides …

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Malpractice Advice from Dr. Oz

Dr. Oz, a well known TV personality, was recently named in a New York lawsuit arising from on-air advice he provided to his viewers.  The doctor allegedly informed his audience about a “heated rice” remedy for insomnia. Dr. Oz called it “my night sleep special” on the April 17, 2012, episode of his NBC show titled “Dr. Oz’s 24-Hour Ultimate Energy Boost Plan.” Unfortunately for 76-year-old Frank Dietl, that Boost Plan left him bedridden for weeks with severe burns on his …

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How Jerry Sandusky Impacts You

The evolving Jerry Sandusky scandal continues to impact the professional liability community.  Most recently, the Middle District of Pennsylvania reached a decision with major implications on the application of D&O – Director’s and Officer’s Insurance.  In deciding that Sandusky’s acts occurred outside the scope of his role with the Second Mile even though the conduct occurred during Second Mile events, the court may have also exposed directors and officers to increased risk of personal exposure.

A key issue in Federal Insurance Co. v. Sandusky, …

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