On Thursday, the Seventh Circuit held that 42 U.S.C. 1981 does not protect against religious discrimination. In Lubavitch-Chabad of Ill., Inc. v. Nw. Univ., No. 14-1055, 2014 WL 5762937 (7th Cir. Nov. 6, 2014), Northwestern University conducted an investigation into underage alcohol consumption at a religious house that was presided over by a rabbi and was affiliated with the university. Following this investigation, the university (1) terminated its affiliation with the religious house and (2) ended the rabbi’s role as kosher food consultant to the university’s food service provider. The rabbi and his religious organization sued the university and two of its officials, claiming these acts were motivated by anti-Semitism and violated two federal antidiscrimination statutes, 42 U.S.C. 1981 and 42 U.S.C. 2000d.

The district court granted summary judgment in favor of the defendants. On appeal, the plaintiffs dropped their challenge to the dismissal of the Section 2000d claim. As to the Section 1981 claim, the plaintiffs argued that the disaffiliation was motivated by hostility against the plaintiffs’ Jewish sect, not by hostility to ethnic Jews. The Seventh Circuit affirmed.

The Seventh Circuit found that both the university’s affiliation with the religious house and the rabbi’s food consulting were contractual. But it observed that there is no mention of religious discrimination in Section 1981, which provides that all persons “shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” The Seventh Circuit wrote that the only difference between 42 U.S.C. 1981 and 1982 is that one deals with contracts and the other with property—neither refers to discrimination on the basis of religious identity, beliefs, or observances. Therefore, it wrote, the Supreme Court’s ruling in Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617 (1987), that Section 1982 protects only groups defined by “their ancestry or ethnic characteristics” applies equally to Section 1981. Accordingly, the Seventh Circuit held that Section 1981 does not protect against discrimination based on religion.

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Successful business development comes naturally to some.  For those of us who aren’t so lucky, DRI has given us a great resource – the new e-book, “Women Rainmakers: Roadmap to Success.”

I was fortunate enough to co-author one chapter, but I am just as excited to be a reader for the other chapters.

Anne Cruz and I had the privilege of writing a chapter with insights from in-house counsel on how outside counsel can become more successful rainmakers. We talked with several in-house decision makers and received transcripts of interviews other WITL committee members had conducted.  From there, we did our best to let the dynamic in-house counsel interviewed tell the story.

The experience was incredibly insightful, and I hope we have translated what we learned into a digestible packet of information and tips for you. We posed the questions to in-house counsel that you can only really ask when you don’t already have an existing client relationship and aren’t actively trying to create one.  We had candid, thoughtful conversations with women who know exactly what it takes to get business from in-house counsel.

I was particularly impressed with the two women I interviewed, as both of them balanced a career-focused path to success with the wonders of motherhood and a happy home life. (I’m sure the other in-house counsel we featured in our chapter are equally impressive; I just didn’t personally have the good fortune to steal an hour of their time). They are successful in all aspects of their lives, and I walked away from our interviews with a great sense of admiration for them.

When I look back at my personal business development plan in 2014, talking with these women is at the top of my list of accomplishments. Not because I suddenly have work from them (I don’t, and that was never the point), but because they inspired me to want to do more.  Do more to understand the law. Do more to cultivate long-term relationships across the legal industry.  Do more at home.  Do more – just as they have done.

The chapter Anne and I wrote is just one of the many different chapters in the e-book, and each has tales and success stories from women equally inspiring.  I hope you read WITL's new publication and that it motivates you as much as working on it did for me.

Pre-order by November 21, 2014, and receive a complimentary download of the publication along with a CD version. 


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The first line of defense in any legal malpractice claim is that the lawyer on the front end, before any work was done, (a) identified who was the client (and who was not the client) and (b) described the work to be done.  Many claims involve lawyers who lost their way as to who they were representing (for example, the company and not the individual officers).  Sometimes it is prudent to actually send the “I am not your lawyer” letter and suggest to the other officers or directors that they need their own counsel.  The important engagement letter specifies what the lawyer was asked to do.  With revisionist history, clients often later claim “no, you were supposed to do X and Y”.  The engagement letter specifies what work was to be done and is “Exhibit A” in any claim against you.  See 5/2/13 “Why the Engagement Letter.” 

Document any changes in the retention after the engagement with even a simple e‑mail that “you have asked us additionally to do this, and otherwise the terms of our engagement letter applies to this work as well.”  The engagement letter also allows you to meet all of the professional obligations you have in your jurisdiction with regard to billing, file retention, file destruction, costs, etc.  Finally, disengage when required with a document that clearly says you are no longer their lawyer.  After the work is over, use the closing letter as a client relations tool for your next matter from them, but clearly put an end to the project at hand with the closing letter saying the described work has ended.  That helps with conflicts later.

The engagement letter is the critical first documentation for your file.  The watch word throughout should be documentation.  In this high speed world, do not forget the old-fashioned letter to the client, even if it is e-mailed.  If they are not following your advice, you had better have proof of that when the wheels end up in the ditch.

My friends at the Buffalo, New York firm of Goldberg Segalla (Neil and Tom’s firm) publish a professional liability column and recently discussed the need to document advice to prevent the dreaded malpractice claim.  They cite a New Jersey case where the documentation by the lawyers on their disagreement with the client’s course of conduct carried the day for the defense.

Pick up any one of the files around your desk and ask yourself how that file would look from the witness stand.  Are your actions and advice suitably noted so you could read and produce them as an exhibit?  When the client’s deal goes sideways, someone other than the client is often thought to be at fault.  If they point at you, be regularly able to show your file which reflects the opposite if appropriate.  Lawyers, protect yourselves.

This blog was originally posted on November 5. Click here to read the original entry. 


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In Humana v. Farmers Texas County Mutual Insurance Company, et al, No. 13-CV-611-LY (W.D. Texas, September 24, 2014) the court denied the defendants’ motion to dismiss and allowed Humana, a Medicare Advantage Organization (“MAO”), to pursue a private cause of action for double damages under the Medicare Secondary Payer Act, 42 U.S.C. § 1395y(b).  In doing so, the court rejected the magistrate judge’s recommendation to grant the defendants’ motion to dismiss Humana’s claims.  The court noted that in In re Avandia Mktg., 685 F.3d 353 (3d Cir. 2012), the Third Circuit addressed the same issue and held that a Medicare Advantage Organization, such as Humana, may bring a private cause of action against a primary plan under the secondary provision of the Act. Acknowledging that the Fifth Circuit had not addressed the issue, the court aligned itself with the reasoning of the Avandia opinion and concluded that the plan text of the Medicare Secondary Payer’s private cause of action provision unambiguously affords Human with a private right of action.  While there continues to be uncertainty about the nature and extent of the recovery rights of MAOs, this decision brings us closer to resolution of the issue in Texas federal courts and ultimately in the Fifth Circuit. 

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Last week the Centers for Medicare & Medicaid Services (CMS) withdrew the Notice of Proposed Rulemaking (NPRM) it submitted to the Office of Management and Budget back on August 1, 2013 relating to CMS’ intent in addressing future medical costs in workers’ compensation, automobile, liability insurance (including self-insurance) and no-fault claims. 

The NPRM was expected to outline how Medicare’s interest should be protected (per the Medicare Secondary Payer Act [42 U.S.C. § 1395y(b)(2)]) in cases where future medical care is claimed or effectively released in the settlement, judgment, award, or other payment of damages. While CMS has guidelines in place for the handling of future medical expenses in workers’ compensation cases, until final rules are released in the liability context, there are no similar standards for claims involving self-insureds and automobile, liability, and no fault coverage. 

CMS began the process of issuing those regulations in June 2012, when it released an Advanced Notice of Proposed Rulemaking (ANPRM) for these claims. By originally submitting a NPRM for review by the Office of Management and Budget (OMB), CMS revealed that it intends to take the next step in the regulatory approval process. 

In July 2014, the Chair of DRI’s MSP Task Force, John V. Cattie, Jr., met with government officials, as part of the public commentary process. During that meeting, he stressed the importance that any future medicals rule proposed by CMS, which creates requirements for addressing future costs of care in liability settlements, judgments or other payments, must have clarity for all stakeholders; including which stakeholders are responsible to ensure Medicare remains a secondary payer for Medicare covered, injury-related future medical expenses arising from settlements, etc. Absent such clarity, he strongly recommended that the proposed rules be returned to CMS until such clarity could be obtained. 

The withdrawn may be attributed to one of two things happening: 1) CMS no longer believes that is has a statutory right to not pay certain future medicals expenses (i.e., no more MSAs); or 2) CMS heard the call that clarity was needed to the NPRM and is taking appropriate steps in accordance with the Administrative Procedures Act to provide that clarity.  We fully expect CMS to redesign the NPRM and resubmit to OMB at a later date. 

The upcoming guidelines are expected to pinpoint the circumstances in which and the actions settling parties should take to ensure that Medicare remains a secondary payer post-settlement. In the meantime, the withdrawal of the NPRM does not change the analysis in how best to deal with future cost of care questions arising in liability settlements. You should review each fact pattern to determine if an MSA is warranted based on the case specific facts in light of the current statutory, regulatory and administrative guidance from CMS as well as relevant case law. Part of that includes identifying whether a settlement pays dollars for injury-related future costs of care, which would otherwise be Medicare-covered. Documenting the file with those conclusions and their underlying rationale represents best practices for managing that risk in today’s environment.


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Corporate policyholders/insureds who have been sued share a common interest with their liability insurers—successfully defending those lawsuits.  Yet insureds and insurers often disagree on the choice of defense counsel and how much the insurer must pay toward legal bills.  These disputes are costly and, in most instances, can be avoided.

Many primary commercial liability policies purchased by corporate policyholders not only impose a “duty to defend,” but also afford insurers the “right to defend.” This express “right” allows the insurer, rather than the insured, to select defense counsel.  Upon seeking a defense under that policy, the insured has relinquished its right to select defense counsel.  

There are two schools of thought regarding whether the assigned defense counsel owes duties only to one client (insured) or to two clients (insured and insurer). Many courts have adopted the two-client or “tripartite relationship” theory, under which insurer-selected counsel (commonly “insurance defense counsel”) has an attorney-client relationship with both insured and insurer.  Where the insurer has agreed to provide a defense to the insured under a reservation of rights, and that reservation raises a conflict of interest such that defense counsel in theory could face divided loyalties, courts have held that the insured is entitled to a defense through counsel of its choice (“independent counsel”).  Most courts hold that not every reservation of rights creates a conflict of interest.  Rather, a conflict of interest has been found where coverage turns on facts or issues to be determined in the underlying action such that the insurer-assigned defense attorney would face a conflict in deciding how to conduct the defense given the duty of loyalty owed to both clients.  

Other courts follow the one-client theory, under which insurance defense counsel represents only the policyholder, not the insurer.  Therefore, the attorney owes no duties to the insurer. Accordingly, in the states following the one-client rule, a reservation of rights cannot give rise to the insured’s right to select its own counsel.

Policyholders often take the position they can select their own counsel, who normally charge higher hourly rates than insurance defense counsel.  The typical arguments include:  (1) the two-client/tripartite relationship model applies, and the insurer’s reservation of rights creates a conflict allowing the insured to select counsel; (2) the insurer’s litigation management guidelines constrain insurance defense counsel from exercising independent professional judgment in the insured’s best interests; and (3) the litigation is particularly important to the insured.  Even when the insurer might acquiesce in the insured’s choice of counsel, disputes arise as to the difference between the insured-selected firm’s proposed rates and the rates the insurer typically pays for that type of case.  Some states have addressed this issue by statute (e.g., California Civil Code Section 2860, limiting hourly rates to those the insurer ordinarily pays) or by case law.  Often, the dispute is left to negotiation and either a compromise (typically by which fees are shared between insurer and insured) or an agreement to disagree, coupled with litigation or arbitration.

There are several solutions to this recurring problem that can eliminate or substantially minimize disputes.  First, the issue can be addressed at the policy negotiation stage.  An insured may insist on controlling the right to select counsel, which often is achieved through a policy endorsement allowing the insured to select counsel or even identifying specific lawyers who will defend lawsuits.  An insurer may protect against a dispute over its future defense cost exposure by including policy language specifying the maximum rates it will pay to defend lawsuits or that it will pay no more than the hourly rates it ordinarily pays in the jurisdiction where a case pends.

Second, insureds should better appreciate that leading property and casualty insurers afford their insureds a full, high quality, and professionally independent defense (regardless of whether of a reservation of rights is asserted).  This is expected of all counsel engaged by insurers.  Significantly, the Defense Research Institute (DRI) Recommended Guidelines for Insurers and Law Firms, which are followed in whole or in substantial part by many insurers, provide: “Nothing contained herein is intended to nor shall restrict Counsel’s independent exercise of professional judgment in rendering legal services for the Insured or otherwise interfere with any ethical directive governing the conduct of counsel.”  Elsewhere the guidelines provide that “in the event of disagreement [over litigation strategy], the final decision will remain the independent professional judgment of defense counsel.”  Whether expressed in an insurer’s guidelines, an engagement letter, or as a matter of practice and expectation, all carriers expect assigned counsel to uphold the ethical obligations they owe their client, the insured.  Further, an insurer may consider emphasizing this reality by agreeing it has no attorney-client relationship with assigned counsel.  See  Michael M. Marick and Karen M. Dixon, “The Insurer’s Contract ‘Right’ To Defend–The ‘Tripartite’ Relationship Reconsidered,” 39 Tort Trial & Ins. Prac. L. J. 1119 (2004) (absence of an agreement in fact to an attorney-client relationship obviates the two-client model, and thus an insured’s ability to select counsel in reservation of rights situations).

Third, insureds and insurers should have an open-minded and transparent discussion on counsel selection immediately after a lawsuit has been filed.  Insurers may consider offering the insured several qualified firms from which to choose.  A “beauty contest” among potential law firms is often highly instructive.  Insurance defense firms often are selected by insureds, even in high exposure cases, both because of their capabilities and they will be paid fully by the insurer.  

Fourth, at the same time counsel is selected, insured and insurer should agree upon litigation management guidelines (including anticipated staffing and budgeting).  It is in the interest of all parties—insured, insurer, and attorneys—to reach a meeting of the minds at the outset of a lawsuit, which facilitates a cooperative and focused defense. Insureds approaching the discussion by taking the position that guidelines are not “binding” on their counsel miss the point.  Both by their language and implementation, leading insurers do not apply guidelines to constrain a lawyer’s ability to fully defend the insured.  Ongoing three-way communication throughout the life of a litigated matter will solve most billing and case management issues.

In sum, insureds and insurers can and should find common ground on how to properly defend high exposure lawsuits. There is no legitimate reason for insureds to be skeptical of an insurer’s counsel selection and litigation management protocols. An honest and open-minded dialogue from the beginning of a lawsuit, and throughout the litigation, should resolve most issues.  


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I have the good fortune these days to be wearing multiple hats. I am managing partner of my firm; chair of the DRI Law Practice Committee; and, President Elect of the Indianapolis Bar Association. In those roles I have traveled the country speaking to DRI and state defense bar groups, attending ABA and the National Association of Bar President meetings, and attending law practice seminars. I have learned that the sands are shifting under the feet of lawyers and law firms, yet most lawyers are completely oblivious. 

You have heard the term "the future is now?" Well, its true, the future is now. Changes are happening so rapidly in law practice that the changes will pass many lawyers by, and when they wake up to the change, it will be too late for many of them.

So, what are some of the changes? Law is rapidly going paperless, and technology (for those who embrace it) is making it far easier (and cheaper for clients) than ever before. The business and insurance world are moving jobs in house. They are using paraprofessionals and outsourcing to do tasks that lawyers have traditionally done.

Across the country more and more individuals and companies are trying to represent themselves because the internet and e-filing has made law look less confusing to them. As law schools have seen declining enrollment, law grads have seen fewer jobs, recent grads are increasingly hanging out a shingle rather than await a traditional firm or corporate job.

Many of these changes are here to stay. Certain kinds of work, commonly known as "commodity work" will never again command fee increases. The work will go in house, and for the outside lawyers who do it, the profits will be derived from doing the work as efficiently as possible, using technology and paralegal assistance.

My pitch to you, my reader: Do everything you can to stay current on trends; view these changes as an opportunity, not a detriment. Get ahead of the trend line. How do you do it? You attend meetings and seminars and you read everything you can find.

We hope, of course, that you will get involved in the DRI Law Practice Management Committee and help us with our programming and materials. But, that is not enough. I also belong to the ABA Law Practice Committee and find their publications to be fabulous. Every day I read a posting from two free sites, Attorneys at Work and Solo Practice University. While I am not a solo practitioner, I have found that it pays to think like one. Both of these sites have valuable information on a daily basis that I often share with my entire firm. I am also a subscriber to the Remsen Group newsletter where I get cutting edge information on law firm trends.

The bottom line is that it is easy to stay current and it is a MUST if you want to survive and thrive in these changing times. It is not enough for just firm managers to be current. We all need our partners and rising associates to be keeping current so that they are hearing about these changes from someone other than us. Thanks for your time! 

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Watch Out

Posted on October 3, 2014 08:43 by Steve Crislip

With Regard to People:

Changes in behavior from the individual’s previously observed norm, which persist, worsen, or recur in a law setting such as:

1.       Physical signs of alcohol or drug abuse (i.e., slurred speech, shaky movements, smell).

2.       Delayed responses to e-mails or phone calls; missed appointments or deadlines.

3.       Lack of preparation for meetings, conference calls, court appearances, etc.

4.       Inattention to routine administrative activities, such as late or missing time, billing, or expense reports.

5.       Unexplained absences or other changes in work habits, such as arriving early or working late.

6.       Forgetfulness; misplaces files or other objects; disorganized.

7.       Sudden weight gain or loss; deterioration in personal grooming or physical appearance.

8.       Irritable, impatient, or angry behavior or unpredictable mood swings; nervous or agitated.

9.       Social disengagement; lack of interest in previously enjoyable activities.

10.     Displays poor judgment; defers to others in discussions and decision-making.

11.     Suffers from fatigue, decreased energy, or lack of motivation; has difficulty concentrating.

12.     Asks others (secretaries, paralegals, lawyers) to cover for the lawyer.

13.     Evidence of financial problems, such as unusual requests for advances.          

 

With Regard to Clients:

1.       Clients switching lawyers.

2.       Sudden unexplained changes with clients, or “noisy withdrawals” by their counsel or accountants.

3.       Smelly clients doing questionable things.

4.       Clients raising funds with other people’s money.

5.       Pie in the sky deals.

6.       Unknown prospective clients not willing to pay reasonable retainers.

7.       Keeping information from you.

8.       Untruthful statements or documents.

 

Be careful out there.  Watch out.

 

This entry was originally posted to Lawyering for Lawyers. Click here to read the original entry. 


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While it is unlikely that the 113th Congress will take any action on climate change (especially not in advance of the November 2014 elections),  many major public companies aren’t waiting for Congressional action and are instead proactively beginning to factor internal carbon pricing into their business decisions.  According to a new report issued by the CDP, 29 major companies in the United States already incorporate a carbon price into their business planning and risk management strategies. Of the 2,100 companies surveyed throughout the world, 638 companies have disclosed that regulations related to carbon pricing (cap-and-trade & carbon taxes) present opportunities for their businesses (although companies in heavy emitting countries and industries continue to report that they feel competitively disadvantaged by carbon pricing). Moreover, 500 of these surveyed companies reported that they are already regulated and price carbon through global carbon markets.  Nearly a fifth of these are U.S.-based companies.    

Another interesting observation that can be gleaned from the CDP report is the significant variability in the price that companies are setting per ton of carbon.  For example, in North America, the price per ton ranges from $8-$80; in Europe, the price per ton ranges between $15-$324. The variability can be explained, at least in part, on the regulatory regime where those companies are operating.  For example, companies operating in California are estimating carbon prices on the basis of California’s cap and trade program which prices carbon at between $14-$15 per metric ton. Companies that primarily operate in Europe rely more upon Europe’s Emissions Trading Scheme, although the current price per metric ton under the EU ETS (£6 per metric ton) is significantly lower than the above-referenced range so these companies are obviously projecting a higher price per ton in the future.  

During last week’s United Nations Climate Summit, many governments and  companies also expressed support for establishing a price for carbon emissions. The World Bank identified many countries, states, provinces and cities, as well as over 1,000 businesses and investors that were in favor of carbon pricing.  The CDP report  noted that “[c]ompanies in the US and worldwide are already advanced in their use of carbon pricing.  They are ahead of their governments in planning for climate change risks, costs and opportunities. These companies want, and are calling for, clear pricing and regulatory certainty to help them plan their climate-related investments, and they want to see more certain, internationally linked carbon markets.”  

Regardless of what side of the climate change debate one embraces, what is clear is that the business community has already made a decision to incorporate climate change related risks into its business strategy decision making.  For those of us that represent the business community, it probably would be a good idea to get on the train or be left at the station.    

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The often uncertain nature of environmental stigma claims has resulted in diverse and often confusing jurisprudence. Stigma damage claims seek recovery of damages to the reputation of the realty.  Stigma damages represent the market’s perception of the decrease in property value caused by an injury to the property.

In the typical diminution of property value claim, the general rule is that a property owner may seek recovery of diminution of property value or the cost of remediation, but not both.  However, in certain circumstances, claimants contend, there is an “additional” diminution of value due to a public health concern about the subject property or contamination on adjacent property for which recovery is sought.  This is the subset of diminution of property value claims where claimants argue that damages should be awarded on account of stigma.

Stigma claims raise conundrums for the courts.  On the one hand, courts desire to make a distressed plaintiff whole.  On the other hand, courts want to award only those damages that are proven with reasonable certainty.  Industry groups argue that stigma damages should not be permitted because they subject industry to the whim of any landowner able to obtain speculative testimony about the future economic impact of a temporary condition – even a condition that  a regulatory agency considers satisfactorily addressed.  These arguments take on even greater poignancy where the claimant’s property has not been physically impacted and the purported stigma is claimed to derive from mere proximity to a contaminated parcel.

On August 22, 2014, the Texas Supreme Court issued a thoughtful decision examining a number of these issues in Houston Unlimited, Inc.Metal Processing v. Mel Acres Ranch (No. 13-0084). The court performed a painstaking analysis of the opinions of the claimant’s diminution of property value expert, and rejected her methodology and conclusions across the board. As a result of finding the evidence supporting the property diminution claim insufficient, the court declined to take up the stigma issue.  Nevertheless, its discussion of stigma claim jurisprudence is noteworthy.

The Texas Supreme Court observed that American courts and commentators struggle with the issue of whether and when to allow recovery for stigma damages.  Most jurisdictions agree that plaintiffs must experience some physical injury to their property before they may recover stigma damages.  Although courts are divided on whether the injury must be shown to be permanent, defendants have expressed concern that a landowner should not be compensated when the loss is based primarily on public perceptions, which can change over time.

Equally problematic are cases in which the plaintiff’s property has not been contaminated or even threatened with contamination.  Some courts have awarded stigma damages to property owners who could demonstrate that their proximity to a landfill where hazardous wastes were dumped, for example, resulted in a loss of their home’s property value.  There is concern among commercial landowners that the possibility of property owners collecting damages in the absence of any direct physical impact to their homes could increase the number of claimants in mass tort property damage suits.

In reversing the Court of Appeals, the Texas Supreme Court observed that the struggle over whether to even allow recovery of stigma damages arises primarily from the conflicting goals of fully compensating the plaintiff for an injury while only awarding those damages that can be proven with a reasonable certainty.  The court observed that even when it is legally possible to recover stigma damages, it is often legally impossible to prove them.  This is because evidence based on conjecture, guess, or speculation is inadequate to prove stigma damages, not only as to the amount of the loss of value, but also as to the portion of the loss caused by the defendant’s conduct.

Based upon the rigor to which the high court subjected the claimant’s diminution of property value claims, Texas trial courts now are on notice that any diminution of property value, whether or not stigma is alleged, must be supported by strong evidentiary proof and reliable expert testimony.

This blog was originally posted on the Environmental & Toxic Tort Defense Insight blog on September 23, 2014. Click here to read the original article. 

 

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Categories: Environmental Law | Toxic Tort

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