Schedule/Sessions

Breakfast

Keynote Speaker - Donald Wagner, Assembly Member 68th Assembly District - State of California

SESSION 1 - Presentation A - ADR Within the Complex Case Management Order

• Speakers:

• Doug Andrews, Self Employed

• Nathan Higgs, National Indemnity Company

• Sahar Pugh, Unknown

In federal cases and certain state cases, the courts may determine the case to be complex and managed via a case management order. This order usually assigns a settlement referee or mediator to oversee one or multiple mediations. The mediation sessions are usually scheduled in advance of formal discovery.  This results in less oversight and lower costs for the court system and gives the parties a chance to share information and engage in early settlement discussions. 
 
The ubiquitous nature of the mediation sessions has led to the devaluing of the mediation process as prescribed in the case management order. This discussion will highlight the obstacles of the current system and present options for counsel and carriers to reengage the mediation sessions with purpose.

SESSION 1 - Presentation B - The Non-Participating Insured Either by Choice or by Fortune

• Speakers:

• Adrienne Cohen, Law Offices of Adrienne D. Cohen

• Derrick Harris, FCCI Insurance Group

• John Hayes, Hayes Law Firm

• Jacqueline Stein, Skane Mills

• Anita Thibadeau, Zurich North America

The panel will discuss the ever-growing problem of the non-participating insured in complex construction defect cases.  When an insured is failing to participate in its own defense either by choice or through insolvency, the insurance carrier is left with unsatisfied and often unsatisfiable self-insured retentions.  Defense counsel is left with potential ethical and legal dilemmas.  Strategies to handle these situations will be examined.

SESSION 1 - Presentation C - Unconventional Approaches to Resolving Construction Defect Cases

• Speakers:

• Teresa Beck, Klinedinst PC

• Michael Montgomery, Butler Weihmuller Katz Craig LLP

• Theresa Touchton, Pella Corporation

• Lee Wright, Tokio Marine HCC

Construction defect matters can be some of the most expensive, complex and difficult cases for carriers, insureds and defense counsel to deal with.   Often times, these cases involve dozens of parties, each with their own interests, issues and positions.  These issues almost certainly intertwine, requiring the parties to sort them out before a successful resolution can be found.  Recently, there has been an increased trend toward finding unique (sometimes mandatory), and hopefully less expensive, ways of resolving these matters.  Using an experienced panel of presenters whose backgrounds include perspectives from the client, insurance, and defense counsel point of view, this advance section will focus on some of the practical issues facing construction claims and their resolution.
 
In addition, the panel of speakers will discuss examples from recent litigation where the litigation team, including lawyers and claims personnel engaged in unconventional tactics which resulted in reduced litigation fees and costs.  The panel will use real world examples of unconventional methods to give attendees practical advice on some ways to efficiently resolve these complex matters.  This discussion will also include some of the efforts that have been mandated by States in requiring pre-suit notice and resolution procedures in an attempt to limit construction defect cases.  The panel will discuss both the pros and cons of such statutory remedies and also give advice on how to handle these types of claims. 
 

SESSION 1 - Presentation D - A Defendant's "Bags of Tricks" in a Toxic Tort Case: Practice Pointers on Procedural Maneuvers and Strategies to Attack and Limit a Plantiff's Recovery

• Speakers:

• Edward Slaughter, Gordon Rees Scully Mansukhani

• David Steiger, Great American Custom Insurance Services, Inc.

• Campbell E. Wallace, Frilot, LLC

Toxic tort cases often present a procedural nightmare with dozens of plaintiffs and scores of defendants.  Proof of exposure, dose, and medical causation in toxic tort cases is usually fact-intensive and complex. 
 
Early planning and control of the procedural agenda in a toxic tort case may allow defendants a chance to limit discovery, dismiss a case pre-trial in motion practice, or go to trial on separate dispositive issues.  With these procedural maneuvers, defendants may get out of a case earlier and cheaper or force a favorable settlement.
 
Defendants have several procedural strategies to limit or defeat each plaintiff’s toxic tort claim.  At the beginning of the case, defendants can tailor written discovery to force each plaintiff to disclose facts specific to the liability of that defendant.  Defendants may as a group structure case management orders (“CMOs”) to control motion practice to their advantage and limit and focus discovery.  With a Lone Pine CMO, defendants may be able to identify an essential element of each plaintiff’s case against all defendants, e.g., medical causation, and obtain a case management order to shut down all discovery until this threshold issue is decided (perhaps in defendant’s favor, with savings of possibly discovery and trial preparations).  Defendants can also pool their resources and focus on motions for partial summary judgment and Daubert motions against plaintiffs to establish the absence of essential elements of plaintiff’s proof.  Joint defense experts can assist in discovery and motion practice to exclude expert testimony of plaintiff in a Daubert hearing, and thereby defeat each plaintiff’s ability to prove his case.  At the trial stage, defendants may seek separate trials on narrow dispositive issues, bellwether trials to provide guidance for settlement of the cases, or seek severance of cumulated, multi-plaintiff lawsuits into separate trials to force each plaintiff to stand alone and prove his claim against each defendant.  
 
By using these procedural maneuvers, defendants can force the plaintiff to “show his hand” on fact and expert proof and establish multiple hurdles to each plaintiff’s success in a toxic tort case against your client. 
 

Break

SESSION 2 - Presentation A - Right to Repair: Use It, Don't Abuse It

• Speakers:

• Denise Anderson, Butler Weihmuller Katz Craig LLP

• Carrie L. Ciliberto, Self Employed

• Matt Constantino, Clapp Moroney | Vucinich | Beeman Scheley

Over the past decade, many states have enacted “Right to Repair” or “Notice and Opportunity to Repair” (NOR) statutes. Frustrated by the seemingly loose fit between the legislature’s purpose in enacting the Statute (to cut down on litigation) and the actual results, companies and their representatives sometimes fail to recognize the litigation advantages provided by these quirky statutes, including unique evidentiary issues for trial.

This advanced roundtable discussion seeks to educate attorneys, companies and claims professionals on using the statutes for the benefit of their clients and carriers to prepare for litigation. Through examples, hypotheticals and anecdotes, the panelists will focus on situations in which contractors, attorneys and claims professionals make the best use of the statutory tools available. The presenters will also provide a survey of NOR statutes, discuss notable differences in the application and requirements, as well compare carriers’ positions on the defense of insureds during the statutory pre-suit periods.
 

SESSION 2 - Presentation B - Strategies For Effectively Managing Construction Defect Litigation

• Speakers:

• Peter Bauman, Callahan & Blaine

• Marianne Boykin, Liberty Mutual

• Steven Cvitanovic, Build Group, Inc.

• Tom Mierzwa, Envista Forensics

This seminar will discuss the various aspects of investigation and litigation management performed when defending construction defect claims. With the use of a real life case study scenario, our experienced panel of legal and insurance professionals will discuss: 

SESSION 2 - Presentation C - Alternative Fees in Construction, Complex, and CD Cases: Pitfalls, Profits, and the Providence of Experience

• Speakers:

• Dan Costello, Costello Ginex & Wideikis, P.C.

• Leonard Fink, Springel & Fink

• Roy Leeds, Arthur J. Gallagher & Co.

Are you an attorney who cringes every time you attend a conference and hear the term AFA's thinking that it is impossible to implement these schemes and still make money? Or are you a claims professional or risk manager who hears these terms all of the time, and want to know how to effectively implement AFAs while not exiling counsel? This presentation will provide a road map and explores some of the key pitfall, creating profits for attorneys, and executing the imperative legal considerations when implementing alternative fees. The program will also dispel myths about AFAs and ease concerns about any perceived risk of bad faith litigation stemming from such agreements. Participants will walk away from the presentation with a firm understanding of the ethical considerations of attorneys, success stories, and strategies at the same time learning how to properly navigate away from risk.

SESSION 2 - Presentation D - When Science, Government and the Law Collide: Toxic Injury Assessments

• Speakers:

• Robert Adams, Ramboll

• Marc Gaffrey, Hoagland, Longo, Moran, Dunst & Doukas LLP

• Thomas Walsh, Shimmick Construction Co., Inc.

Routine personal injury litigation is frequently complicated by unique theories that require the retention of scientific consultants and experts, coupled with governmental involvement and oversight.  A worksite injury lawsuit, particularly where the allegation stems from exposure or inhalation of a toxic substance, requires experts such as industrial hygienists, toxicologists, and epidemiologists,  as well as the inclusion of governmental agencies, such as OSHA, EPA and MSHA.   A non-worksite lawsuit, particularly in the toxic tort arena, such as lead, mold and household chemical exposure, will likewise require the insight of an expert in the appropriate scientific discipline, as well as state/local health, environmental protection and workplace safety agencies.
 
This presentation is designed to provide guidance for situations where routine personal injury litigation becomes complicated by the need to invoke a scientific approach and to utilize governmental standards to support or rebut a claim.  We will present an overview of the relative roles of the lawyer (plaintiff and defense), the scientist and the governmental agency in prosecuting and defending claims that may begin as simple personal cases, but evolve into the toxic tort arena and/or involve complex science based issues.
 

BREAK

SESSION 3 - Presentation A - Defining a Win in Construction Defect Litigation

• Speakers:

• Russell Beal, Fireman's Fund Insurance Company (FFIC)

• Wendy Hultman, Vela Insurance Services LLC

• Michael LaFond, Pekin Insurance Company

• Adam Springel, Springel & Fink

This session will explore what it means to “win” a construction defect case in the eyes of the carrier and client. The panel will explore the importance of reaching an early and agreed upon action plan and financial evaluation and the impact those tasks have on setting accurate reserves. An outline will be followed by the panel to show when to hold 'em, when to fold 'em, and when to go to trial.  The panel will also discuss how each of these plans can be “wins” as long as counsel’s work is consistent with the agreed upon strategy and expense expectations for a particular file.  The panel will also look at how a good result on its face is sometimes “losing.”

SESSION 3 - Presentation B - Risk Transfer and Recovery- How Indemnity and Additional Insured Endorsements Coverage is Changing the Landscape of Construction Defect Litigation

• Speakers:

• Linda Pretzel Roberts, RiverStone Resources LLC

• Brenda Radmacher, Akerman LLP

• Richard Righi, Righi Fitch Law Group

Litigation of construction defect cases pivots in great part around issues of risk transfer.  The issues of risk transfer mechanisms has become an even more critical issue in construction defect cases over the past few years.  This advanced panel session will address the best practices approaches related to risk transfer mechanisms including indemnity issues and additional insured issues in construction defect cases.   The panel will discuss the underlying issues and key case law on interpretation of indemnity provisions, discuss tips for drafting a better indemnity agreement, evaluate how to use additional insured endorsements to procure coverage, and dialogue on methods for recovery of defense and indemnity dollars.

SESSION 3 - Presentation C - Using Early Neutral Evaluation in Complex Cases to Achieve Faster, Better and More Cost Effective Resolutions: From Concept to Application

• Speakers:

• Robert Freedman, Freedman Law Firm

• Edward Martinet, Lima Solutions, Inc.

• Jean Osborne, Great American Insurance Group

Litigating complex cases is time consuming and expensive and those that are paying their costs continue to explore ways to achieve faster, better, and less expensive resolution. The problem is that with some exceptions, the court system has a one-size-fits-all structure for all litigated matters, and the courts are generally not designed to deal with complex cases.   Complex cases are generally multi-party, multi-issue cases, higher exposure cases that typically test the judges and staff patience and strain the courts’ limited resources.  Litigating complex cases though the courts can be like trying to put square pegs in round holes at times.  
 
Resolving complex cases through the courts and exercising the parties constitutionally protected rights to a jury trial will eventually resolve any dispute.   However this comes at a very high cost and with significant risk.  As a result, private Alternative Dispute Resolution or “ADR” providers have established themselves as alternatives to the courthouse.  Through a combination of legislation and self-governance, ADR providers have established the practices and administrative structures that tend to focus on mediations and arbitrations as opposed to other ADR procedures, such as Early Neutral Evaluations or “ENE.”   There are fundamental differences between ENE and mediations and arbitrations.  Binding arbitration is generally a binding evaluative process.  Mediation is generally a non-binding facilitative process.  On the other hand, ENE is a non-binding evaluative process.
 

SESSION 3 - Presentation D - Trends and Developments in Class Action, Mass Tort, and Multidistrict Litigation

• Speakers:

• Moris Davidovitz, Cooper & Scully, P.C.

• Eileen Jenkins, Eileen Jenkins Consulting LLC

• Kerry Miller, Frilot, LLC

Construction defect cases are usually multi-party, document intensive cases with complex fact and legal issues.  Class action and multi-district (MDL) litigation of construction defect cases magnifies the complexity and potential exposure of defendants in these cases.

The Chinese Drywall MDL litigation in New Orleans presented complex fact, procedure, case management, discovery, settlement and legal issues. The Panel will discuss these topics using the Chinese Drywall litigation as an example, and the following:

1. Class actions and MDLs
2. New developments in class action/MDL litigation, including recent Supreme Court cases;
3.  General strategies for defendants in class actions and MDL construction defect litigation;
4.  Innovative settlement and procedures to limit a defendant’s exposure in a class action or MDL construction defect case.
 

Networking Lunch