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).

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 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.