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June 27, 2016 | Publication| Historic Hotel, Restaurant & Nightclub Fires Provide Common Threads for Developing Significant Subrogation Recoveries

Dean S. Rauchwerger, Geoffrey M. Waguespack

This article was originally published in the Subrogator, a publication by the National Association of Subrogation Professionals, Spring/Summer, 2016. © Copyright 2016 by NASP. All rights reserved. Republished by Butler with permission from NASP.

Early tragedies, such as the Cocoanut Grove Nightclub and Winecoff Hotel fires, were the catalysts for the development of national fire safety codes and standards. Modern model codes and standards are promulgated by the National Fire Protection Association. They generally provide minimum fire protection standards.

Compliance with the codes and standards likely has saved countless lives over the decades. History tends to repeat itself, however, when lessons from the past are not learned, corners are cut, and the codes and standards are disregarded. For example, the 1980s witnessed no fewer than five major hotel fires. In November 1980, 87 people died at the MGM Grand Hotel fire in Nevada. One month later, in December 1980, 26 people died at the Stouffer’s Inn in New York. Three months later, in February 1981, a fire at the Las Vegas Hilton killed eight people and injured 600, hospitalizing 300 people. In March 1982, a fire at the Westchase Hilton in Houston, Texas, killed 12 people. On New Year’s Eve 1986, in San Juan, Puerto Rico, a fire at the DuPont Plaza Hotel killed 97 people, caused over 140 injuries. These fires collectively resulted in hundreds of millions of dollars of property damages.

The case studies below provide valuable insights for developing fire recovery theories. Clarence Darrow recognized: “History repeats itself, and that’s one of the things that’s wrong with history.” Until history’s lessons are learned, hotel, restaurant, and nightclub fires will persist, and recovery opportunities abound!

Cocoanut Grove Nightclub (Boston, MA 1942)

The Cocoanut Grove Nightclub was one of Boston’s foremost clubs during the 1930s and 1940s. Tied to the mafia, the club’s owner routinely locked and concealed exits, and even bricked one emergency exit to inhibit scarpers. 

On Thanksgiving weekend in 1942, the club hosted a holiday party crammed at over triple the maximum capacity. Although causation was undetermined, reports state that a guest removed a corner light bulb. While reinstalling the bulb, an employee likely lit a match, igniting a decorative tree. The fire quickly spread along walls and flammable decorations, propagating upstairs and across the dance floor, engulfing the crowd within seconds.

The club did not have a fire suppression system, and there were no sprinklers or fire extinguishers handy. As guests fled, they found exit doors bolted shut or boarded. The only exit was a single revolving door, which people immobilized by pressing against both sides. The fire killed 492 people and injured countless hundreds more, becoming the second deadliest building fire in U.S. history.

The Titanic of Hotels: The “Absolutely Fireproof” Winecoff Hotel (Atlanta, GA 1946)

The Winecoff Hotel was constructed in 1913. The hotel’s stationery advertised the hotel as “absolutely fireproof.” Accordingly, the hotel owners did not install sprinklers, fire escapes, or an alarm system in the 15-story building. 

On December 7, 1946, the hotel was filled to capacity with more than 280 guests. According to reports, at approximately 3:00 a.m., an elevator operator smelled smoke on the fifth floor and descended to the lobby, exclaiming: “Fire!” By that time, floors three, four, and five were already engulfed in flames. The cause of the fire remains unclear, although there is speculation that a careless patron dropped a cigarette onto a mattress, igniting the blaze.

As designed, the hotel was a deathtrap. The stairwell and elevator shafts—the only means of egress—ran straight through the middle of the building. Doors leading to the stairwells on several floors and many transoms above guest rooms were open, forming a giant chimney and allowing smoke and flames to be pulled inward and upward rapidly through the middle of the perfectly square hotel. With the only exit impassable, guests fled back to their rooms, where many just hopelessly awaited their fate while other chose a quicker demise.

The Winecoff Hotel fire remains the worst hotel fire on U.S. soil. Nearly half of the guests—119 people—perished in the blaze.

Beverly Hills Supper Club (Southgate, KY 1977)

The Beverly Hills Supper Club was a popular nightspot, showcasing attractions from Hollywood, Las Vegas and New York. The club boasted a “non-combustible” frame and ceiling tiling, but substantially used wooden building materials and connecting joints. The carpeted club was adorned with highly flammable decorations and wooden wall paneling. Rooms were packed with wooden tables, supports, curtains, and other combustibles.

No sprinkler system was installed, and the contemporary local fire regulations did not require one. The club also lacked smoke detectors and fire alarms.

During a Cabaret Room show on May 28, 1977, the club hosted 3,200 guests, about 1,500 over capacity. A small, smoldering fire—likely a result of faulty electrical wiring—began in a dropped ceiling where a wedding reception was taking place. Once wait staff opened the door to allow guest to enter, oxygen flooded the room, causing flashover. The fire engulfed the room, spreading rapidly along the wooden ceilings and walls. The flashover was so fast that guests were found in their seats with drinks in their hands.

The club did not have a fire alarm, so news of the fire spread through word-of-mouth as employees sprinted to distant ends of the large building. The limited number of exits prevented escape, and many people perished due to smoke inhalation at the doorways leading away from the Club. The fire killed 165 people and wounded over 200.

MGM Grand Hotel (Las Vegas, NV 1980)

The MGM Grand Hotel was a 23-story luxury hotel and casino. On November 21, 1980, the hotel hosted approximately 5,000 people. That morning, a fire broke out in the “Deli,” a hotel restaurant. The fire quickly spread through the casino and smoke spread into the hotel tower. Most of the damage was to the second floor casino and adjacent restaurants.

The fire and smoke killed 87 people (many in their sleep) and injured 700. Most deaths occurred on the upper floors of the hotel, caused by smoke inhalation or carbon monoxide poisoning.

The investigation revealed that an electrical ground fault inside a wall socket at a pastry display case caused the fire. The fire spread through the lobby, igniting wallpaper, piping, glue, and plastic. The fire spread through the casino at a rate of 15 to 19 feet per second because there were no sprinklers. The hotel believed that sprinklers were not necessary, because the hotel was open 24/7. The speed of the fire spread resulted in a massive fireball blowing out the main entrance on the Vegas Strip.

Openings in vertical shafts, such as elevators, stairwells, and seismic joints permitted smoke and toxic fumes to spread to the top floor. Faulty smoke dampers in the ventilation duct system exacerbated the spread of poisonous gases through the hotel’s air circulation system. Locked doors in stairwells trapped people in toxic fumes.

The fire was contained within the casino and restaurant areas. Damage was minimized in areas where the money was kept, which had functioning sprinkler systems.

Prior to the fire, the building inspector exempted the casino and restaurants from having sprinklers because they were supposed to be occupied 24 hours a day. When the fire broke out in the restaurant, however, it was no longer open 24 hours a day. At the time of the fire, it was closed and unoccupied.

Dupont Plaza Hotel (San Juan, Puerto Rico 1986)

The Dupont Plaza Hotel was a 22-story resort hotel and casino.  The hotel included a 17-story tower with 423 guest rooms.

On December 31, 1986, at approximately 3:00 p.m., arsonists set fire to a six-foot pile of plastic-wrapped chairs, dressers, and packing material in an empty, first-floor ballroom, where there were no smoke or heat detectors, alarms, or sprinklers. The hotel housed more than 400 employees and about 1,000 guests, over 250 of whom were gambling in the second floor casino. Within 20 to 30 minutes of the fire’s ignition, 97 people had died and over 140 others were injured. The fire department did not receive a call from the hotel until 3:40 p.m.

A hotel executive first noticed the fire when he saw smoke billowing up a stairwell. The executive descended to the lower level and discovered the ballroom ablaze. The fire ignited the carpeting and wall covers. It spread through gaps between the structural and drop ceilings, hiding from view flames and toxic smoke that surrounded the casino. The inferno broke windows between the ballroom and foyer. The breakage occurred during a flashover, which allowed dense smoke to flow into the foyer and reach the lobby and casino. Thick smoke and heat extended from the lobby to the casino, blocking the casino’s main exit, where many gamblers congregated.

It was estimated that the fire swept through the lobby and the casino in about eight minutes after it was discovered. The oxygen released from windows broken by people escaping fueled the flames. Virtually every combustible in the fire’s path ignited within 20 seconds, as the flame front swept through the casino at a rate of about six feet per second. At 1200 degrees, people literally exploded.

The hotel’s air conditioning unit exacerbated the fire, as clouds of smoke particles built up and ignited suddenly. The air itself exploded.

The hotel’s 17-story tower did not have sprinklers, and the fire alarm system did not work. Although the smoke from the casino fire billowed up the tower, many of the guests were not aware of the fire until they saw it, smelled it, heard someone shout “Fire,” or heard firefighters responding. No smoke detectors or sprinklers were located in the corridors leading to guest rooms. There were no smoke detectors, sprinklers, or alarms in guest rooms. Elevators were not equipped with fire department access or recall doors, smoke detectors, or sprinkler protection. One stairway did not have a door separating it from the main lobby, allowing heat, smoke, and fire to infiltrate it.

The first and second floors of the hotel, especially the ballroom, foyer, lobby, and casino, suffered the most damage. Although adjacent to the ballroom, the tower was mostly undamaged by fire, but suffered significant smoke and soot damage.

Station Nightclub (West Warwick, RI 2003)

On February 20, 2003, the Station Nightclub was hosting a heavy metal band performance. The intoxicated, youthful crowd well exceeded capacity. During the band’s opening song, devices sprayed sparks to enhance visuals. Almost instantly, the acoustic foam lining the stage ignited. The fire on the extremely flammable urethane and plyethlyne foam spread quickly, engulfing the crowd in thick sheets of toxic smoke.

When the fire alarm sounded, the revelers stampeded towards the only available exit. Video footage depicts a deadlock at the door due to pressure from individuals pushing from behind. One hundred people lost their lives, with over 230 others injured by burns or smoke inhalation. The local fire code required a sprinkler system, but no sprinklers were installed during renovations due to improper paperwork that ignored local codes and misled officials.

Collectiv Nightclub (Bucharest, Romania 2015)

Most recently, an October 30, 2015 fire at the Collectiv Nightclub in Bucharest, Romania, killed 63 people and wounded over 180. Like the Station Nightclub fire, a heavy metal band’s pyrotechnics ignited the club’s flammable polyurethane acoustic foam. The fire spread rapidly throughout the club, covering the walls and ceiling. Thick, black smoke caused immediate suffocation and many individuals fell in their tracks.

The overly-packed crowd stampeded towards the single, narrow exit, which the crush of people largely blocked. The fire suppression system consisted of a single fire extinguisher, no sprinklers, and no emergency exits.

The Common Thread: Fire Spread

Besides the extreme tragedy and immense loss of life and property, all of these events have something in common. They illustrate how even small fires can become large fires with astounding speed. They are examples of how the failure to employ proper fire detection, fire proofing, suppression, and containment allows fire to spread at unbelievable rates.

The common thread to each of these events is fire spread due to the failure to suppress the fire. Automatic sprinklers are paramount to fire suppression. Properly installed and maintained automatic fire suppression systems likely would have limited fire spread. Adequate sprinkler systems generally suppress fires before they reach fatal intensity levels by significantly diminishing the changes of exceedingly high temperatures, as they cool the room. When sprinklers go off, the fire could not be concealed in its early stages; there would be no build-up of heat, no flashover, and no inferno.

Sprinklers go hand-in-hand with fire detection and containment. State of the art systems can operate through a central computer, monitoring thousands of locations within an establishment and initiate hundreds of life safety actions.

When assessing subrogation potential after a fire, consider the issue of fire spread. Even if the cause of the fire is undetermined or your insured is at fault, recovery opportunities loom if the fire spread is a result of inadequate or improperly maintained fire suppression and detection systems, or inadequate containment and excessively flammable materials.

Subrogation investigations should consider the work performed by the companies responsible for designing, installing, and maintaining the fire protection systems. For example, the investigation should explore whether the system was designed properly for the layout and function of the facility; whether the proper types of sprinkler heads and detection equipment were installed and done so properly; and whether the systems were properly maintained through proper testing, including any necessary integrated testing. In some instances, the contractor responsible for ongoing maintenance has the duty to inform the insured of inadequacies in the system, even if the contractor did not originally design the system or is not ultimately responsible for implementing changes.

Winston Churchill once said that “those that fail to learn from history are doomed to repeat it.” As restaurants, hotels, and nightclubs get larger, more popular, and overly crowded, history must be the best fire safety teacher for the owners and operators. Fire codes and standards are meant to curb property damage and to save lives. If codes and standards are ignored, history will, as it did in 2015 in Bucharest, repeat itself with tragic deaths and substantial property losses. Being mindful of such recurring fire safety and protection failures is vital in developing significant subrogation recovery opportunities for hotel, restaurant and nightclub fires.

A profile photo of Dean S. RauchwergerDean S. Rauchwerger

A Partner at Butler Weihmuller Katz Craig LLP in Chicago, IL. Dean practices in our Aviation, Casualty Defense Litigation, Product Liability, and Subrogation & Recovery departments.

A profile photo of Geoffrey M. WaguespackGeoffrey M. Waguespack

A Senior Associate at Butler Weihmuller Katz Craig LLP Chicago, IL. Geoffrey practices in our Appellate, Construction, Employment Law, Product Liability, and Subrogation & Recovery departments.

A profile photo of Jonathan M. LevyJonathan M. Levy

An Associate at Butler Weihmuller Katz Craig LLP in Chicago, IL. Jonathan practices in our Product Liability and Subrogation & Recovery departments.

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April 15, 2016 PublicationIt's a Recovery: Opportunities to Recover Advanced Deductibles, LAE and Unpaid Premiums

Reimbursement claims stem from basic contract principles. These recovery rights turn on the promises contained in the insurance policy that the law will enforce. After all, it is all about enforceable promises that give rise to contractual recovery from one’s insured.

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December 17, 2015 PublicationIntroduction to Insurance Subrogation

Published by LexisNexis, Appleman on Insurance has long been considered a comprehensive resource in the field of insurance law.  It is showcased by LexisNexis as an “authoritative analyses of insurance law across the nation with insights provided by expert practitioners and scholars . . . .”

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October 13, 2015 Publication(Un)Reel Legal Ethics: Obscure Critiques of Ethical Issues in Hollywood Films About Civil Litigation

Dean S. Rauchwerger, Geoffrey M. Waguespack, and Jonathan M. Levy of Butler’s Chicago office authored (Un)Reel Legal Ethics: Obscure Critiques of Ethical Issues in Hollywood Films about Civil Litigation, published in NASP’s Subrogator, Fall 2015. The article cleverly explores issues of legal ethics that arise in modern movies involving civil litigation, set in the style as written by movie critics.

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October 13, 2015 PublicationWhen is the Contract Complete? Court Rules that Statue of Repose Commences Upon Final Payment.

Recently, Florida’s Fifth District Court of Appeal reviewed the statute of repose relative to improvements to real property.

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July 07, 2015 PublicationImposition of Duty to Those with Easily Accessible and/or Specialized Knowledge

In denying AutoNation’s motion and finding that a duty existed, the Court reasoned that AutoNation's status as a General Motors dealer gave it easily accessible and specialized knowledge about the truck recall via the electronic VIN check.  The Court explained that the “the decision to impose a legal duty is a multifaceted issue requiring courts to balance a number of factors,” including risk and utility.  

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May 05, 2015 PublicationProduct Liability Blackjack (21) Ways to Win, Bust or Fold!

Strategic thinking in prosecuting or defending product liability actions often mirrors the creativity, gut-check and fortitude to play the winning blackjack hand. As in blackjack, in the litigation game, it is often not how you start but how you finish that decides the winner. Though the cards often favor the house or your adversary, playing your cards to their maximum potential yet recognizing when it is necessary to fold, is vital to smartly beating the odds. Below is a practical checklist of 21 ways to win, bust or fold in your product liability game.

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March 13, 2015 PublicationLiability and Damages: Understanding Property Insurance Bad Faith Litigation in Florida

Florida recognizes two general categories of insurance bad faith: first-party and third-party. A cause of action for third-party bad faith exists at common law, but also may be brought under the Florida bad faith statute. The essence of a cause of action for third-party bad faith is that the insurer breached its duty to its insured by failing to properly or promptly defend claim, which resulted in the insured being exposed to a judgment in excess of the coverage limits.

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December 01, 2014 PublicationThe Only Thing We Have To Fear Is Spoliation Itself … and Sanctions: How Spoliation Can Erode, or Even Destroy, the Potential for Recovery

Successful subrogation recoveries generally start with proper documentation and preservation of the relevant evidence.  For this reason, every effort should be made to involve a subrogation professional at the earliest possible moment following a loss.  However, early involvement is not always plausible.  Additionally, at times, the circumstances surrounding the loss simply do not allow for the desired preservation of evidence.  When the relevant evidence is not sufficiently documented or preserved, a claim for recovery is likely to be met with a spoliation defense. 

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October 01, 2014 PublicationOptimizing the Use of Technology in Mediation

From cell phones, to the world wide web, to electronic mail, and beyond, over the past twenty years, we have experienced an unprecedented growth in technology, as well as a growing dependence in our day-to-day lives on these technologies. Accordingly, it is of little surprise parties and mediators alike have implemented the advancements in information technology to the mediation process. Various forms of technology can be utilized to assist parties from the initial stages of selecting a mediator to the actual day of the mediation conference, and all points in between. This article details a number of ways technology advancements have affected the way parties mediate.  

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June 26, 2014 PublicationThe Language Was Not Enough: Florida Supreme Court Holds that the Standard "Transfer of Rights" Provision Does Not Abrogate the "Made Whole Rule"

The scope of these transferred rights had not been addressed in Florida until the Eleventh Circuit certified the issue to the Florida Supreme Court. In its recent opinion, the Florida Supreme Court clarified that a basic transfer of rights provision, without more, does not give the insurer a right of priority. Under such circumstances, priority of recovery remains dictated by Florida's common law "made whole doctrine." 

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April 01, 2014 Publication"How to Succeed at Subrogation (...but you do have to try!)"

Success in Subrogation can be measured in many ways, and depends greatly on what type of business is at issue for the underlying recovery claim.  There can be different strategies for each type of subrogation claim (Property is different from Health Care which is different from Workers Comp which is different from Auto) but there are some universals, and we will try to discuss those here.

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April 01, 2014 Publication"Texas Damages"

In Property Subrogation, one of the most difficult damages situationsto deal with is a commercial loss where older equipment is destroyed and that equipment is integral to the operation of a facility.  Oftentimes, the business decision is made to replace used equipment (which may not have a fair market value in the marketplace) with new equipment, to minimize the downtime and the associated business income loss.  A recent Texas case may give property subrogators some ammunition to contest how those pieces of equipment get valued for recovery purposes.

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December 01, 2013 PublicationProving Lost Profits In a Subrogation Case: It's No Easy Matter

This article was originally published in the Subrogator, a publication by the National Association of Subrogation Professionals, Winter, 2013. © Copyright 2013 by NASP. All rights reserved. Republished by Butler with permission from NASP.

As subrogation professionals, it is sometimes easy to overly focus on the liability issues in each case, leaving a thorough damages analysis for another day. However, it is a better practice to perform a complete evaluation of the legally recoverable damages early during the subrogation investigation, so that the true value of the claim can be ascertained and relayed to the subrogating insurer. This is especially so in cases where the business interruption portion of the loss is significant, since an error in proper quantification of the recoverable portion of the business interruption loss could dramatically change the overall valuation of a case -- both for settlement and trial purposes.

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July 01, 2013 PublicationSeventh Circuit Holds that an "Amorphous Litany of Complaints about a Myriad of Workplace Decisions" Is Insufficient to Establish Discrimination under the Direct Method of Proof

If you would like to discuss this topic further, please contact Geoffrey Waguespack or directly 312-462-9157.

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May 01, 2013 PublicationAvoiding The Economic Loss Rule In Construction Claims

The Economic Loss Rule  was initially developed in the products liability context....

However, over the years, courts have used the product liability concepts created in the early cases interpreting the Rule to expand the Rule's application to include construction claims, which has created problems in applying the Rule in non-product liability claims. "[T]the troublesome cases discussing the dreaded economic loss rule have usually arisen in the field of construction."

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May 01, 2013 PublicationStuck Between a Collapsed Wall and a Hard Place: The Failure to Establish the "Standard of Care" in a Negligence Claim

Generally, "to establish a claim for negligence, a plaintiff must show: (1) the defendant had a legal duty to conform to a certain standard of conduct; (2) the defendant breached that duty; and (3) the plaintiff sustained damage that was proximately caused by the defendant's breach.

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May 01, 2013 PublicationExamination Under Oath: A Vital Tool in Examining Potentially Fraudulent Claims

SIU Manager, Ryan West, was used to the smell. You know the smell. It is scorched. It is bitter. It is the seemingly everlasting and sticky odor of smoke.  He's at the fire scene to take a recorded statement of Belinda Peters. Her house burned last night. Burned as she started frying some chicken for dinner.  Her attention was diverted from the stove while she took a call from her aunt in the Netherlands. Her story, to the fire department, is that she left the stove unwatched, unattended, for a mere minute.

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April 01, 2012 PublicationWhat Nearly Two Decades as a Subrogation Attorney Has Taught Me about Product Safety

The other day when I was asked to write an article about "product safety" I pondered how to best approach this.  As we all know, what is or is not a "safe product" is often in the eye of the beholder (or which side of the "v" you are on!).  Is any product that fails even once an "unsafe product?"  If 1,000,000 items have been manufactured and "only" 73 of them have failed, is that an "unsafe product?"  What about 133 of them?  If a product fails when it was being used improperly, but it was not a stretch for the manufacturer to have anticipated this "alleged misuse", is that an "unsafe product?"  If a product has been tested by agencies and groups with an international reputation for such testing, and the product has passed, can that product be an "unsafe product?" 

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April 01, 2012 PublicationMade-Whole Interpretations Leave Insurers Feeling Empty

There is a growing trend among state courts to interpret the made-whole doctrine in ways that have the potential to make it very difficult for insurers to effectively exercise their subrogation rights.  In recent years, state courts’ decisions have increasingly created hurdles for insurers to overcome before they are able to actively pursue recovery for payments made to their insured.  These requirements could have a potentially chilling effect on the field of insurance subrogation.

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February 14, 2012 Publication"Freedom to Contract" Gives Rise to Big Recovery Opportunities from Policyholders for Self-Insured Retentions, Deductible Reimbursements, Retrospective Premiums and Loss Adjustment Expenses

Insurance policies often include language that allows insurers to recover amounts they have advanced for the insured's benefit. For instance, if the insured's policy has a SIR, the policy may contain a provision similar to the following:

We shall have the right but no obligation, in all cases,  to assume charge of the defens and/or settlement of any claim, and, upon our written request, you shall tender such portion of the SIR as we may deem necessary to complete the settlement of such claim.
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October 29, 2009 PublicationThe Daubert Tango: "Recent Developments In Fire and Explosion Litigation"

In 1923, the Court of Appeals for the District of Columbia, affirming the exclusion of an expert witness at trial, stated:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

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October 07, 2008 PublicationLanding the Knockout Punch: Contacting Another Party's Current And Former Employees Within the Ropes

Winning litigation requires that you and your counsel land the devastating uppercuts at the key moments in the fight. Big opportunities for critical testimony and evidence exist by pursuing permissible ex parte contacts with another party's current and former employees. The ethical ropes and practical tips for effectively contacting and interviewing such witnesses are discussed below.

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December 03, 2007 PublicationDrowning in Black Water: Water Restoration Contractors' Deviations from Industry Good Practices & Standards of Care Trigger Potential Mold Liabilities

Entry of errant water into a building or other structure can lead to serious mold problems, physical damages and substantial property and business interruption losses. This  article provides a roadmap on developing viable recovery claims against restorative drying contractors who were involved in improper and careless restoration and remediation of water  damaged property. As in any garden-variety tort claim, it is imperative that your counsel appreciate the critical importance of identifying the target contractor's vulnerable liability exposures.

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December 05, 2006 PublicationUnderwriters Laboratories—The Forgotten Island In The Litigation Seas—"Full Of Fruit"—For Bolstering Or Undercutting Product Integrity

Underwriters Laboratories Inc. ("UL") is a nonprofit organization conducting product safety evaluations. UL Marks are on 19 billion products ( www.ul.com ). As of 2005, there are more than 71,000 manufacturers producing UL-certified products and 97 countries where UL customers are located. UL publishes hundreds of safety standards and disseminates safety information globally.

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August 01, 2006 PublicationThe Big Daubert Hurdles in Fire & Explosion Litigation

Over a decade has passed since the U.S. Supreme Court's ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc ., 509 U.S. 579 (1993), and it is time to evaluate where we've been, where we are, and where we are headed on the admissibility of expert opinion testimony in fire and explosion cases.

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June 05, 2006 PublicationA Product Supplier's Liability Exposure for Noncompliance With its Obligation Under the Consumer Product Safety Act and Related alternative Statutory Authorities

Manufacturers, importers, distributors and retailers have the obligation to place only those products that are safe for use into the stream of commerce. In addition to those obvious duties, these entities also face significant duties under the Consumer Product Safety Act (CPSA) ' and other legislation and regulations enforced by the Consumer Product Safety Commission (CPSC).

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May 09, 2006 Publication"Top-Dog" Depositions The Hurdles to Overcome

High-level executives are frequently sought to be deposed because of their unique corporate roles for, inter alia, policy making, corporate governance and implementing policy compliance and corrective actions. On a tactical basis, the executive deposition is pursued so that your adversary's "figurehead" directly feels the "hot buttons" of your case, real-time, without layers of filtering and spin. "Top-dog" depositions, commonly called "apex depositions," cover a wide range of executives, including CEOs, presidents and other senior management positions.

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May 09, 2006 PublicationTaking A Closer Look For Deep Pockets

A CORPORATION is a legal entity created by filing certain documents with the state. It offers many benefits that are found in other entities, such as limited liability, centralized management, transferability of ownership, continuity, and taxation. On the other hand, some of these benefits pose problems for securing legal liability when the corporation is used as a shield to avoid liability or to perpetuate a fraud. In these cases, a victim may be left without any avenue of relief. Fortunately, all hope is not lost!

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May 01, 2006 PublicationAlternative Ways To Use Evidence Of "Other Conduct" That Would Otherwise Not Be Admitted

In developing your case, as plaintiff or defendant, it is important to appreciate the various alternative ways for opening the door to "other conduct" evidence to prove relevant facts at issue. Below is a synopsis of strategic methods and insights for proffering evidence of character for a non-propensity purpose, habit, subsequent remedial measures and prior occurrences/failures.

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January 03, 2006 PublicationGetting the Winning Edge: Appreciating the Permissible Boundaries, in Qui Tam and Other Litigation Contexts, for Contactiong Your Adversary's Current & Former Employees

To say the least, litigation is frequently competitive, hard-fought and fraught with many hurdles. Developing a winning case requires that you seek the edge at every step in the journey. Big opportunities for marshalling critical testimony and evidence exist by pursuing permissible ex parte contacts with your adversary's current and former employees. Below is a general discussion of the ethical boundaries and practical tips for effectively contacting and interviewing such witnesses

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October 05, 2005 PublicationCourageous Whistleblowers are not "Left Out In The Cold": Legitimate Justifications Exist for Collecting Evidence of False Claims Act Violations

It is the courage of whistleblowers, standing up in the face of great adversity and overwhelming pressure to "look the other way;' that enables the False Claims Act ("FCA") to fulfill its primary purpose of combating fraud on the U.S. Treasury. By marshalling evidence and collecting company documents, the whistleblower provides the necessary proof to shed light on fraudulent and illegal FCA activities.

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May 03, 2005 PublicationHow "What We Learned in Little League" Paves the Way for Winning Litigation!"

As in baseball, whether being the batter, pitcher, or outfielder, successful litigation requires a strong belief and conviction that one has the power to shape reality. Certainly, without the batter's confidence that he or she will hit the ball, irrespective of its speed, twists or turns, few home runs would be made, let alone "singles or doubles"

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April 01, 2005 PublicationLive . . . From The House Of Subrogation!

 The Hilton Hotel in Austin, Texas will truly be "The House of Subrogation" from November 13 through 16, when over 1,200 subrogation professionals from around the globe assemble for the NASP Annual Conference. And this year's conference is expected to be even bigger, better and more alive than ever before!

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January 06, 2004 PublicationGoing Toe-to-Toe With Your Opposing Expert

Experts oftentimes make or break cases.  As knowledge and science have grown, so has the range of experts that parties call upon to advocate their cause.  Not only must a party always look to bolster one's own expert case, a party must simultaneously be mindful of the need to undercut your adversary's expert.  As the client, you want to ensure that your assigned counsel appreciates the following practical ways for tackling the opposing expert during the discovery process

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PublicationUnraveling The Complexities Of Contractual Disputes

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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PublicationDeveloping A Claim Of Successor Liability—A Practical Guide To Recovery When Your Primary Target Defendant Has No Seizable Assets

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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PublicationProtective Orders- Not Everything Can Be Swept Under The Rug!

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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PublicationSix Critical Steps For Achieving A Successful Mediation

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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PublicationAll Is Not Lost Simply Because A Target Defendant Has No Assets—Pull Out The Magnifier And Investigate The Corporate Connections Of Your Target For Alternative Deep Pockets!

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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PublicationContracting Outside The Four Corners Of The United States—A Closer Look At The United Nations Convention On Contracts For The International Sales Of Goods

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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PublicationThe Top 100 Ways To Build A Winning Recovery Case: Effective Claims Management Of Subrogation Cases

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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PublicationMCS90 Endorsements Provide Significant Subrogation Recovery Opportunities

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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PublicationSubrogating The Spill: What Are An Insurer's Options For Recovering Claims Paid As A Result Of The Gulf Oil Spill?

If you would like to discuss this topic further, please contact Dean Rauchwerger at drauchwerger@butler.legal  or directly (312) 462-9147

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PublicationSignificant Recovery Opportunities Where An Insured Breaches Its Reimbursement Policy Obligations For Advanced Deductible, Self-Insured

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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PublicationBig Daubert Hurdles In Fire & Explosion Litigation—Revisiting The Importance Of Testing An Expert's Theories

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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PublicationMass Confusion in Transactional Business: Boilerplate Forms and Competing Contractual Terms Often Lead to a "Battle of the Forms"—Practical Considerations for Minimizing Litigation

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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PublicationUnited States' Liability For Negligent Disaster Response Under The Federal Tort Claims Act

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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PublicationUndue Delay In Pursuing Subrogation May Result In Missing The Recovery Boat

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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PublicationFederal Tort Claims Act: Pursuing Uncle Sam's Deep Pockets By Unlocking The Right Doors

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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PublicationRailroad Subrogation And Third Party Recoveries—"Getting Back On Track"

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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PublicationWhen Businesses Compete Fiercely, Crossing Certain Boundaries May Give Rise To Tortious Interference Claims

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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