July 03, 2011

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Professional reading - recent blog posts of note From the Electronic Discovery Law Blog, an interesting summary of a San Diego legal ethics opinion barring an attorney from making an ex parte "friend request" to a represented party. Seems to be common sense. The Drug and Device Law Blog has a good discussion of recent Supreme Court decisions concerning personal jurisdiction in products liability cases based on stream of commerce. This is required reading. While there, also catch their post about the status and rights of private insurers who are Medicare Advantage Organizations as secondary payers. From the Blog of the Legal Times, we have an article about how Wilmer Cutler may or may not be facing a contingent claim of $214 million arising from a patent matter. One of the managing partners of that firm says no problemo. Move along folks, there's nothing to see here. Brian Krebs has published a story about cutting-edge litigation relating to the liability of a bank to a commercial customer for fraudulent wire transfers from the business's account by cyber-criminals. Cyber fraud is a huge problem and it remains to be seen how legislatures and courts deal with it. A DRI Today post provides a helpful checklist in The Top Ten Mistakes To Avoid When Preparing Coverage Opinions. The Insurance Defense News blog has a report concerning a successful defense of a retail store in the E.D. of Virginia against the claims of a customer who banged her head on a shelf. It was an open and obvious condition, held Judge...
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D.C. Court of Appeals creates a new basis for recovery for emotional distress In Hedgepath v. Whitman Walker Clinic, No. 07-CV-158 (D.C. June 30, 2011), the D.C. Court of Appeals, sitting en banc, held that the plaintiff, who was negligently informed by a doctor at the Whitman Walker Clinic that he was HIV positive, when in fact he was not, could sue for negligent infliction of emotional distress, even though the alleged negligence did not place the plaintiff within a "zone of physical danger." The Court reversed the trial court's summary judgment in favor of the defendants, and remanded the case for further proceedings. The Court recognized a duty to avoid negligent infliction of serious emotional distress will be recognized only where the defendant has an obligation to care for the plaintiff's emotional well-being or the plaintiff's emotional well-being is necessarily implicated by the nature of the defendant's undertaking to or relationship with the plaintiff, and serious emotional distress is especially likely to be caused by the defendant's negligence. The Court concluded that in this case, the defendants, in the context of a doctor-patient relationship, undertook to test and treat the plaintiff for HIV, an undertaking that would necessarily implicate the patient's emotional well-being and entailed a specially likely risk of serious emotional distress. The plaintiff did not find out that he was misdiagnosed as being HIV positive for five years, and presented evidence of serious emotional distress as a result of the misdiagnosis. The new rule does not replace the prior "zone of danger" rule, but is a supplement to it. The...

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