Just Compensation in Enhancement Cases

The Firm represented several different land owners in different condemnation actions in Baldwin County, Alabama in which the acquiring agency took the position that the remaining property was enhanced by the project to such an extent that the land owners were only entitled to a nominal offer of $500 as compensation.  Over the past year in these cases, the Firm’s clients in these types of cases have received the following results:
  November 2011 – Settlement for $95,000
  August 2011 – Voluntary dismissal of condemnation action
  February 2011 – Settlement for $156,000
  November 2010 – Jury Trial resulting in a $180,205 recovery

Jeffrey J. Hartley, head of the firm’s Bankruptcy and Creditor’s Rights practice group, serves as panelist for CLE seminar on “Emerging Issues in Chapter 11” at Cumberland School of Law in Birmingham.

Mr. Hartley was participating in Cumberland’s 22nd Annual Bankruptcy Law Seminar on September 30, 2011 and led a presentation on “Prepackaged Chapter 11 Plans.”  He has been a regular member of the seminar faculty over the years.  His co-panelists were Judge William Sawyer, Bankruptcy Judge for the United States District Court for the Middle District of Alabama, attorney Richard Carmody of Birmingham and attorney Patricia Redmond of Miami, Florida.

Helmsing Leach attorney Joseph P. H. Babington gives presentation on Alabama tort reform to the Alabama Defense Lawyers Association.

On September 30, 2011, at the Grand Hotel in Point Clear, Alabama, Helmsing Leach partner Joseph P. H. Babington gave a presentation to members of the Alabama Defense Lawyers Association on the 2011 Alabama tort reform measures.  The new laws decrease the period of repose for claims against architects, engineers, and builders; reduce the interest rate on money judgments; affect the venue of wrongful death actions; protect non-manufacturer sellers from product liability actions; and change the standard for the admission of expert testimony in certain civil and criminal proceedings.

Helmsing Leach attorneys obtain win for clients on all three major issues in recent lawsuit.

In David’s Auto Shredding, Inc. v. Shredder Co., LLC, Slip Copy, 2009 WL 8478359 (S.D. Ala. March 24, 2009), United States Magistrate Judge Sonja Bivins agreed with Helmsing Leach attorneys Joseph P. H. Babington and D. Andrew Stivender that a lawsuit filed against their clients should be transferred to a federal court in Texas based on a forum selection clause contained in an agreement binding on the plaintiff.  Before Judge Bivins’s recommendation could be considered by a district court judge, however, the plaintiff filed for Chapter 11 bankruptcy protection and the case was stayed.  After the plaintiff’s bankruptcy reorganization plan was confirmed by the bankruptcy court, the plaintiff requested the district court to transfer the lawsuit to that court.  In response, Attorneys Babington and Stivender argued that the action should not be transferred because the bankruptcy court did not have jurisdiction or, even if it did, circumstances did not warrant a transfer.  United States District Judge Kristi K. DuBose agreed and denied the plaintiff’s request. David’s Auto Shredding, Inc. v. Shredder Co., LLC, Slip Copy, 2011 WL 4025716 (S.D. Ala. September 12, 2011).  The court also asked the parties to brief the issue of whether Judge Bivins’s recommendation to transfer the case to Texas should be adopted.  The plaintiff argued that the case should not be transferred because of what the plaintiff asserted were changed circumstances relating to the bankruptcy.  In contrast, the Helmsing Leach attorneys argued that there was no evidence supporting the plaintiff’s position and that the forum selection clause was entitled to substantial weight.  Judge DuBose ruled in favor of Helmsing Leach’s client and adopted Judge Bivins’s recommendation to transfer the lawsuit to Texas. David’s Auto Shredding, Inc. v. Shredder Co., LLC, Slip Copy, 2011 WL 4915155 (S.D. Ala. October 17, 2011).

Alternative Billing Arrangements Seminar

Helmsing Leach sponsored an internal seminar on October 13, 2011, on alternative billing arrangements (ABA) to straight billable-hour fee contracts.  The seminar, presented by Jim Newman and Joe Babington and attended by 13 firm lawyers, focused on various alternative fee arrangements and how these can provide clients with greater certainty and predictability for budgeting legal fees and expenses in certain litigation matters and other types of work. Recent trends were discussed, including the firm’s experience that, if structured properly, ABA can more closely align client and attorney expectations and interests and provide a fairer and more cost-effective compensation arrangement. The firm has entered into ABA with several existing clients and is willing to consider ABA in appropriate situations.

Helmsing Leach makes annual donation to United Way.

United Way is a network of community-based groups that raise billions of dollars annually in philanthropic contributions, which support programs benefiting local communities, including in Mobile and surrounding areas.  Every year,  Helmsing Leach encourages its attorneys and staff members to contribute.  We are pleased to announce that, this year, Helmsing Leach employees and shareholders contributed more than $11,500 to this worthy cause.

Helmsing Leach’s successful petition to Alabama Supreme Court results in dismissal of medical malpractice case against hospital defendant

Finding that the plaintiff, who had amended his complaint to add Helmsing Leach’s hospital client as a defendant after the statute of limitations had run, had not exercised due diligence to ascertain the defendant’s correct name in a timely fashion, the Alabama Supreme Court directed the trial court to grant the hospital defendant’s motion for summary judgment.  Click here for the Defense Research Institute’s report on the case

Helmsing Leach wins discovery battle before Alabama Supreme Court in product liability case.

Helmsing Leach lawyers Joseph P. H. Babington and D. Andrew Stivender teamed up with Daniel R. Lanier (dlanier@milesstockbridge.com), principal of Miles & Stockbridge, P.C. and United States Coordinating Counsel for Black & Decker Corporation, to obtain a favorable ruling from the Alabama Supreme Court in Ex parte Delta International Machinery Corp., ___ So. 3d ___, 2011 WL 3211098 (Ala. July 29, 2011).  The Court held that a plaintiff in a products liability action against Helmsing’s client, saw manufacturer Delta International Machinery (“Delta”), was not entitled to inspect and test “flesh sensing” technology created by a joint venture in which Delta was a member.  The plaintiff had been injured years earlier when his hand contacted the blade of a lightweight portable bench-top saw made by Delta.  He alleged in his lawsuit that the saw was defective under the Alabama Extended Manufacturer’s Liability Doctrine because it did not incorporate technology that can sense human flesh contacting the blade and retract the blade in time to avoid injury.

Delta had been part of a joint venture which created flesh sensing technology the plaintiff sought to inspect and test.  After the trial court entered an order allowing inspection and testing, Delta filed a petition for a writ of mandamus, asserting that the technology was irrelevant to the plaintiff’s claim and also highly confidential.  Agreeing, the Supreme Court concluded that there was no evidence indicating that the technology could have been incorporated into a lightweight bench-top saw like the one the plaintiff used.  The Court also rejected any argument that the manufacturer had a duty to create flesh sensing technology and incorporate it into the subject saw when it was made.  Finally, the Court determined that the joint venture’s technology was a trade secret entitled to heightened protection from discovery.  Accordingly, the Court issued the writ and directed the trial court to vacate its order allowing inspection and testing.

Best Lawyers in America Recognition

The following lawyers were selected for inclusion in the 2012 Best Lawyers in America publication:  R. Alan Alexander, Joseph P. H. Babington, Jeffery J. Hartley, Warren C. Herlong, Jr., John N. Leach, Jr., Charles R. Mixon, Jr., James B. Newman, J. Casey Pipes, Robert H. Rouse, and A. Edwin Stuardi, III.  In addition, John N. Leach, James B. Newman and Jeffery J. Hartley received such high ratings from their peers that Best Lawyers in America named them as the “Mobile Litigation Lawyer of the Year” in their respective areas of practice.  Further, based on the number of lawyers in the Firm who were recognized by Best Lawyers in the following practice areas, the Firm received the following Top Listings:

Top-Listed in Alabama in Eminent Domain and Condemnation Law;

Top-Listed in Alabama in Legal Malpractice Law;

Top-Listed in Alabama in Litigation – Construction;

Top-Listed in Alabama in Litigation – Land Use & Zoning;

Top-Listed in Alabama in Municipal Law;

Top-Listed in Mobile, AL in Bankruptcy and Creditor Debtor Rights/Insolvency and Reorganization Law;

Top-Listed in Mobile, AL in Eminent Domain and Condemnation Law;

Top-Listed in Mobile, AL in Health Care Law;

Top-Listed in Mobile, AL in Land Use & Zoning Law;

Top-Listed in Mobile, AL in Legal Malpractice Law;

Top-Listed in Mobile, AL in Litigation – Antitrust;

Top-Listed in Mobile, AL in Litigation – Bankruptcy;

Top-Listed in Mobile, AL in Litigation – Construction;

Top-Listed in Mobile, AL in Litigation – Environmental;

Top-Listed in Mobile, AL in Litigation – Land Use & Zoning;

Top-Listed in Mobile, AL in Municipal Law;

Top-Listed in Mobile, AL in Product Liability Litigation – Defendants; and

Top-Listed in Mobile, AL in Tax Law.

Firm wins summary judgment for defendant pharmaceutical company in Stephens-Johnson Syndrome case in federal court

Glenn S. Kerner and Joseph P.H. Babington

Glenn S. Kerner, chair of the Mass Tort and Class Action SLG of DRI’s Product Liability Committee and partner of Goodwin Procter LLP in New York City, teamed with Joseph P.H. Babington, partner of Helmsing, Leach, Herlong, Newman & Rouse, P.C., in Mobile, Alabama, recently to obtain summary judgment in favor of Teva Pharmaceuticals USA, Inc. (Teva) in a product liability action involving the prescription drug cephalexin in the United States District Court for the Southern District of Alabama. Barnhill v. Teva Pharmaceuticals USA, Inc., et al., case no. 06-cv-00282 (S.D. Ala. May 10, 2011). Plaintiff’s negligent failure to warn claims were dismissed on the basis of the learned intermediary doctrine. In dismissing the plaintiff’s claim for negligent failure to conduct post-marketing surveillance, the court declined to extend Teva’s post-marketing surveillance duty beyond the requirements of FDA regulations. The court also dismissed the plaintiff’s breach of implied warranty of merchantability claim.

The plaintiff alleged that, at age 12, she developed Stevens-Johnson Syndrome, a rare and severe hypersensitivity reaction, as a result of ingesting Teva’s antibiotic cephalexin. Plaintiff’s complaint asserted various claims under Alabama law, including strict liability, misrepresentation, negligence, breach of express warranty and breach of implied warranty of merchantability. Early in the litigation, Teva prevailed on a motion to dismiss the plaintiff’s strict liability and misrepresentation claims. All remaining claims were dismissed on summary judgment, including negligent failure to warn, negligent failure to conduct post-marketing surveillance and breach of implied warranty of merchantability.

The court held that summary judgment for Teva was warranted on the failure to warn claim because the plaintiff could not establish proximate cause under Alabama’s learned intermediary doctrine. The plaintiff’s prescribing physician had testified at deposition that she still prescribes cephalexin today, despite being aware of the potential risks. Given that testimony, the court held there was no evidence to support the plaintiff’s allegation that a more forceful warning would have changed the physician’s decision to prescribe cephalexin for the plaintiff. In so holding, the court rejected the plaintiff’s argument that a heeding presumption should apply in this case.

The court rejected the plaintiff’s claim that Teva had a legal duty to conduct post-marketing surveillance beyond the requirements of FDA regulations. Teva demonstrated that it complied with all FDA regulations relating to reporting adverse events. However, the plaintiff argued that Teva was obligated to monitor and report adverse events from other manufacturers’ cephalexin products, as well as its own. The court found that the plaintiff provided no support for her argument that such a duty existed.

The court also rejected the plaintiff’s breach of implied warranty of merchantability claim, holding that the plaintiff presented no evidence to rebut the presumption under Alabama law that cephalexin, as an inherently dangerous product, is fit for its intended use.