MN Asbestos Litigation Update – Jury verdict (Neil Humphreys & Lona Jensen v. 3M, et al.)

On October 22, 2014 after a six day trial, an eight-member jury returned a verdict in favor of plaintiff in a Minnesota living mesothelioma case  (Neil Humphreys and Lona Jensen v. 3M, et al.).  This is the first plaintiff verdict in a Minnesota asbestos case in the past five years. 

Trial began on October 13, 2014 against Smith-Sharpe and Owens-Illinois.  Smith-Sharpe settled during voir dire. Plaintiff’s expert testimony was given by Dr. Richard Lemen, Philip John Templin, Dr. Arnold Brody and Robert Johnson.   Owens-Illinois called Dr. Randall M. German, Dr. Peter Neushul, and Dr. Earl D. Gregory.

Owens-Illinois defended the case by arguing a State-of-Art defense and that plaintiff was mistaken as to the identity of the insulation he used.   Plaintiff worked three months as an insulator the Summer of 1967 at Taconite Harbor, a power plant located in Minnesota along the North Shore of Lake Superior.   Plaintiff testified he used Mundet asbestos cement and Owens-Illinois’ pipecovering and block.

After two days of deliberation, the jury assigned the following fault: 36.5% to Owens-Illinois;  23.5% to Mundet; and 40% to API (employer).  The total damages were $4,516,000 with the following breakdown:  $856,000 for pl’s past damages;  $2,756,000 for pl’s future damages;  $904,000 for spouse consortium.

For additional information, contact David Scouton in the Minneapolis office of Foley & Mansfield at 612.338.8788.

 

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Minnesota Supreme Court Confirms Reallocation of Damages

A Minnesota Supreme Court ruling today prohibiting reallocation of uncollectable damages will affect the allocation of fault on defendants at trial in asbestos cases.

The Minnesota Supreme Court issued an opinion today that will affect asbestos-related cases in the State of Minnesota. In Staab v. Diocese of St. Cloud,[1] the Minnesota Supreme Court held that a party who is severally liable under Minnesota’s apportionment-of-fault statute, Minn. Stat. § 604.02, subd. 1, “cannot be required to contribute more than that party’s equitable share of the total damages award through the reallocation-of-damages provision in Minn. Stat. § 604.02, subd. 2.”

In an opinion authored by Justice Wilhelmina M. Wright, the supreme court found that there was more than one reasonable interpretation of the statute in concluding that under Minn. Stat. § 604.02, subd. 2, an uncollectible portion of a party’s equitable share of damages cannot be reallocated to a party that is only severally liable under Minn. Stat. § 604.02, subd. 1. Justice David L. Lillehaug penned a dissent that was joined by Justice Alan C. Page.

The apportionment-of-fault statute directly affects asbestos cases when a party or tortfeasor (who is not sued) is found liable but is insolvent or for which a judgment is not collectable. Often bankrupt entities are assigned an apportionment of fault by the jury in asbestos litigation. When this happened prior to today’s opinion, uncollectable damages from other entities assigned liability were reallocated among the remaining defendants that the jury found liable for the plaintiff’s injury. The court’s ruling today prohibits reallocation of uncollectable damages, ensuring that severally liable defendants are responsible only for the amount originally allocated to them by the jury.

It must be noted, however, that the opinion rendered today does not alter Minn. Stat. § 604.02, subd. 3, which applies to product liability claims. Subdivision 3 provides that an amount uncollectable from any person in the chain of manufacture and distribution can be reallocated among all other persons in the chain of manufacture and distribution of the product. (See Minn. Stat. § 604.02, subd. 3.) For instance, uncollectable damages from a bankrupt insulation manufacturer may still be reallocated to defendants that distributed or sold the bankrupt insulation manufacturer’s products.

Today’s opinion is a step forward for defendants in Minnesota asbestos litigation. The decision balances the scale in Minnesota by requiring people and companies to pay for the harm they cause, but not for harm caused by others. “Allowing uncollectible damages attributable to the fault of one party to be reallocated to a severally liable party would be contrary to the clear purpose of the 2003 amendment—requiring severally liable parties in the Minnesota tort system to pay only for the harm caused by their own conduct and not for the harm caused by others.”

[1] The court’s opinion today will be known as Staab IV. Staab I was the first court of appeals decision in this case, 780 N.W.2d 392 (Minn. App. 2010). Staab II was the supreme court’s decision affirming and modifying Staab I. Staab III was the court of appeals decision after subsequent proceedings, 830 N.W.2d 40 (Minn. App. 2013), which the supreme court reversed today in Staab IV.

Summary of Staab v. Diocese of St. Cloud

Alice Staab was injured when her husband Richard Staab pushed her wheelchair through an open doorway and over an unmarked five-inch drop-off at Holy Cross Parish School. Staab v. Diocese of St. Cloud (Staab I), 813 N.W.2d 68, 71 (Minn. 2012). Staab sued the owner and operator of the school, the Diocese of St. Cloud, alleging the Diocese failed to protect her from an unreasonable risk of harm created by the unmarked five-inch drop-off. Id. Richard Staab was not named as a party in the lawsuit. Id. The jury awarded Staab compensatory damages, attributing 50 percent of the negligence that caused Staab’s injuries to the Diocese and 50 percent to Richard Staab. Id. In Staab I, the supreme court held that Minn. Stat. § 604.02, subd. 1, “applies when a jury apportions fault between a sole defendant and a nonparty tortfeasor, and limits the amount collectible from the defendant to its percentage share of the fault assigned to it by the jury.” 813 N.W.2d at 80.

On remand, Staab sought reallocation of Richard Staab’s equitable share of the damages award to the Diocese. The district court determined that Richard Staab’s equitable share was uncollectible and entered judgment against the Diocese for the entire damages award after finding that the uncollectible share of damages attributable to a nonparty tortfeasor can be reallocated under Minn. Stat. § 604.02, subd. 2.

The court of appeals affirmed the reallocation. Staab v. Diocese of St. Cloud (Staab II), 830 N.W.2d 40, 47 (Minn. App. 2013). The supreme court granted the Diocese’s petition for review, the result of which, is today’s opinion. The Court has clarified that Under Minn. Stat. § 604.02, subd. 2, an uncollectible portion of a party’s equitable share of damages cannot be reallocated to a party that is only severally liable under Minn. Stat. § 604.02, subd. 1.

The entire opinion can be found here.

Contact David Scouton for  more info0rmation at 612-338-8788.

 

 

 

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ADA Does Not Protect the Cantankerous

Recently, in Weaving v. City of Hillsboro, 12-35726, 2014 WL 3973411 (9th Cir. Aug. 15, 2014), a U.S. Court of Appeals addressed ADHD as a mental impairment under the Americans with Disabilities Act (“ADA”). The 9th Circuit has previously recognized that “interacting with others” is a major life activity, the impairment of which is protected under the ADA. However, in this case, the 9th Circuit held that as a matter of law the jury could not have found that ADHD substantially limited the officer’s ability to work or to interact with others within the meaning of the ADA, given the absence of evidence that the officer’s ADHD affected his ability to work, and in light of substantial evidence of his technical competence. Also, the 9th Circuit found that the officer’s interpersonal skills and problems did not amount to a substantial impairment of his ability to interact with others. In other words, absent a real impairment of the officer’s ability to interact with others (i.e., panic attacks, communicative paralysis, or fear reactions), the plaintiff’s failure to “get along” with his co-workers was not protected by the ADA.

In this case, Weaving was diagnosed with ADHD as a child. Weaving ultimately became a police officer and later a detective, joining the Hillsboro, Oregon, Police Department (“HPD”) in 2006. As an adult, Weaving believed that he had outgrown ADHD, and he did not report this condition to the HPD. Over the course of three years, Weaving consistently had difficulty getting along with his co-workers and subordinates, and they often complained that he was often sarcastic, patronizing, and demeaning. In 2009, following a bullying complaint, the HPD put Weaving on paid leave while an investigation was performed into the claims. While on leave, Weaving sought a mental-health evaluation, where a physician found that some of his interpersonal difficulties had been caused by his continuing ADHD.  Very soon afterwards, the HPD released the findings of its investigation, determining that Weaving had “fostered a hostile work environment for his subordinates and peers,” was “tyrannical, unapproachable, non-communicative, belittling, demeaning, threatening, intimidating, arrogant and vindictive,” and noting that he “does not possess adequate emotional intelligence to successfully work in a team environment, much less lead a team of police officers.” Consequently, the HPD fired Weaving, who sued under the ADA, claiming that the HPD fired him after he disclosed his ADHD diagnosis. Weaving’s case went to trial and a jury found in his favor, awarding him more than $500,000. The appeal to the 9th Circuit followed.

The 2009 ADA amendments relaxed the standard for determining whether a plaintiff is substantially limited in engaging in a major life activity. However, even under these relaxed standards, the 9th Circuit found that Weaving could not satisfy the lower standard under the current law. The record showed that Weaving was a very skilled police officer who had developed coping and compensatory mechanisms for his ADHD, and had been selected for high-level assignments and promoted. Consequently, the record did not contain substantial evidence showing that Weaving was limited in his ability to work as compared to “most people in the general population.”

In deciding this case, the 9th Circuit stated: “recognizing interacting with others as a major life activity of course does not mean that any cantankerous person will be deemed substantially limited in a major life activity. Mere trouble getting along with coworkers is not sufficient to show a substantial limitation . . . In addition, the limitation must be severe . . . We hold that a plaintiff must show that his ‘relations with others were characterized on a regular basis by severe problems, for example, high levels of hostility, social withdrawal, or failure to communicate when necessary.”

Here, Weaving’s evidence differed starkly from that in other cases where the 9th Circuit had determined that a plaintiff’s ADHD had severely limited a major life activity. He was able to engage in normal social interactions and he had little difficulty in comporting himself appropriately with his supervisors.” Although Weaving’s ADHD “may well have limited his ability to get along with others . . . that is not the same as a substantial limitation on the ability to interact with others.”

Finally, the 9th Circuit stated that “[o]ne who is able to communicate with others, though his communications may at times be offensive, ‘inappropriate, ineffective, or unsuccessful,’ is not substantially limited in his ability to interact with others within the meaning to the ADA . . . To hold otherwise would be to expose to potential ADA liability employers who take adverse employment actions against ill-tempered employees who create a hostile workplace environment for their colleagues.”

The take away: In general, employers should not rely on this case to show that either employees with ADHD do not have a potential disability claim or that they will be able to win ADA cases by arguing that an employee’s medical condition is not severe enough to be an ADA disability. ADA cases are assessed on individual issues. However, what this case does show is that even with the very relaxed standards under the 2009 ADA amendments, a court (even the 9th Circuit) is willing to draw a line in the sand.

Louis C. Klein, Of Counsel in Foley & Mansfield’s Los Angeles office, and M. Amadea Groseclose, associate in the Los Angeles office, are members of the firm’s national employment law group. For more information or assistance, Lou can be reached at 213-283- 2100 or lklein@foleymansfield.com. Amadea can be reached at 213-283-2100 or mgroseclose@foleymansfield.com.

 

 

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Six Foley & Mansfield Attorneys Named to 2014 Michigan Super Lawyers® and Rising Star® Lists

Foley & Mansfield is pleased to announce that six attorneys in the firm’s Detroit and Grand Rapids offices have been named to the 2014 Michigan Super Lawyers® and Rising Star® Lists. Joining the firm’s 2014 roster is partner Melinda A. Balian, Chair of the firm’s Health Care practice group.

Recognized on the Super Lawyers® list:

  • Gary D. Sharp, Partner – Named for the eighth consecutive year for Personal Injury Defense.
  • Melinda A. Balian, Partner – Named to the 2014 list for Employment and Labor Law.
  • David L. Haron, Partner –  Named for the seventh consecutive year for Health Care Law.

Attorneys named to the Rising Star® list:

  • Scott S. Holmes, Partner  –  Named for the fourth consecutive year for Business Litigation.
  • Maro Bush, Attorney – Named for the third consecutive year for Health Care Law.
  • Mercedes Varasteh Dordeski, Attorney  – Named for the fifth consecutive year for Health Care Law.

Super Lawyers is a rating service of outstanding lawyers who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a rigorous multi–phased process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area. Rising Stars follows a similar process to recognize up-and-coming attorneys who are age 40 or younger, or who have been in practice for 10 years or less. No more than 2.5 percent of lawyers in a state receive this recognition

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Foley & Mansfield Wins Summary Judgment for City of Fraser

On August 26, 2014, the Macomb County Circuit granted summary judgment in favor of our client, the City of Fraser, in a case brought against Almeda University, an institution with its place of business located in Puerto Rico, in the amount of $600,000.  This case of first impression was brought against Almeda University under the recently passed Authentic Credentials In Education Act, MCL 390.1601, and  involved Almeda University issuing Bachelors and Masters degrees to police officers which were used by the officers for promotion and salary increases. The Bachelors and Masters degrees were issued to the officers based solely on submission of their life experiences - and the payment of a fee.

The Macomb County Circuit Court found that because Almeda University was not a qualified institution under the Act necessary to issue advance degrees in the State of Michigan, Almeda “knowingly issued or manufactured a false academic credential.”  In addition to the statutory damages awarded in the amount of $600,000, the Act provides for the award of actual costs and fees incurred in the matter.  A hearing on fees and costs is scheduled for September.

For additional information or assistance, contact Greg Meihn in the Detroit office of Foley Mansfield at 248-721-4200.

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Stellpflug to Present ABOTA “Masters in Trial” Program at DAJV Conference in Berlin

Janet Stellpflug, a partner in the firm’s Minneapolis office, is a featured presenter at the upcoming DAJV Annual Conference on German and American Law in Berlin, Germany. Stellpflug will participate in the American Board of Trial Advocates’ (ABOTA) “Masters in Trial” program, a mock-trial featuring a civil litigation scenario.  The conference is being held September 5-6, 2014 in Berlin.

Stellpflug sits on the Executive Committee of the Minnesota Chapter of ABOTA. For more information on this program, visit the DAJV website. 

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Responding to EEOC Charges – Webinar

Lou Klein of Foley & Mansfield’s Los Angeles office will provide practical guidance on how employers should respond to EEOC charges at this upcoming webinar.

See more at: http://clearlawinstitute.com/responding-to-eeoc-charges/

 

 

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EEOC Expands Scope of Protections Under the Pregancy Discrimination Act With New Enforcement Guidelines

On July 14, 2014, the Equal Employment Opportunity Commission (“EEOC”) issued controversial new enforcement guidelines on pregnancy discrimination and related issues. The new guidelines greatly expand the protections afforded pregnant employees by aligning the Pregnancy Discrimination Act more closely with the ADA. However, the Commission was not unanimous in setting forth its guidance with two of its Commissioners, Victoria Lipnic and Constance Barker, issuing strong statements against the new guidelines.

The EEOC’s Enforcement Guidance is the Commission’s first comprehensive update of its position on pregnancy discrimination since 1983. The Guidance takes immediate effect and attempts to clarify the EEOC’s position on numerous pregnancy and pregnancy-related issues. For instance, through the new Guidance, the EEOC effectively stated that it is irrelevant whether a pregnant employee has a disability for purposes of reasonable accommodation because the employer must accommodate a pregnant employee with work restrictions under the PDA if it accommodates non-pregnant employees similar in their ability or inability to work. By doing so, the EEOC imported ADA reasonable accommodation requirements directly into the PDA.

In fact, the Guidance covers a broad range of pregnancy-related conditions for which an employer will be required to provide a reasonable accommodation including: anemia, sciatica, carpal tunnel syndrome, gestational diabetes, nausea, abnormal heart rhythms, swelling in the legs, pelvic inflammation, depression and/or mandatory bed rest. Reasonable accommodations can include redistributing marginal job functions, temporary assignment to light duty work, modification of workplace policies, alteration of how essential or marginal job function is performed (e.g., modifying standing, climbing, lifting or bending requirements), modification of work schedules, and/or granting leave.

But the EEOC has also taken an additional step by indicating in its Guidance that a pregnant employee who is not suffering from a pregnancy-related impairment by still be entitled to ADA-type reasonable accommodations under the PDA.  Specifically, the EEOC cited to lifting restrictions as an example of a reasonable accommodation that a pregnant employee is entitled to receive even if the employee is not otherwise disabled under the ADA.

Commissioners Lipnic and Barker have loudly dissented. Commissioners Lipnic and Barker expressed their disappointment in the non transparent way the EEOC went about finalizing the Guidance – no public notice or comments – particularly because the Guidance “adopts new and dramatic substantive changes to the law.” Commissioners Lipnic and Barker also questioned the “wisdom of the timing of the Commission’s actions.” Commissioner Lipnic stated that “[t]he most significant questions addressed in the Pregnancy Guidance are pending before the U.S. Supreme Court for review and decision. See Young v. United Parcel Services Inc., 707 f.3d 437 (4th Cir. 2013), cert. granted, 86 USLW 3602 (U.S. July 1, 2014)(No. 12-1226).” The new Guidance, there fore, is premature and may not represent the state of the law after the Supreme Court decision much like the Guidance’s discussion of discrimination based on the use of infertility treatments and contraception. Commissioner Lipnic argued that this discussion “has already been overtaken by events, specifically the Court’s recent decision in Burwell v. Hobby Lobby Stores, Inc., et al., – S.Ct. –, 2014 WL 2921709 (June 30, 2014).” Indeed, Commissioner Lipnic stated that it is “not the proper role of the Commission to decide . . . questions of policy, particularly where, as here, the law enacted by Congress plainly does not contemplate the Commission’s answers to those questions.” In Commissioner Lipnic’s view, the Commission reached far beyond its purview by legislating, rather than regulating or interpreting current law.

Part Four of the Guidance provides a number of “Best Practices” which even to the Commission “may go beyond federal non-discrimination requirements . . .” The use of these suggestions may potentially “decrease complaints of unlawful discrimination and enhance employee productivity.” The practices include: developing, disseminating and enforcing strong policies based on the requirements of the PDA and ADA, training managers and employees regularly, conducting employee surveys and reviewing current employment policies, responding to pregnancy discrimination complaints efficiently and effectively, and protecting applicants and employees from retaliation. As both Commissioners Lipnic and Barker noted in their dissents, the new Guidance imposes requirements that are simply not supported by the language of the ADAA or the PDA, or are in complete contradiction to existing court decisions.

Employers are urged to review their policies relating to pregnancy, discrimination, leave and disability accommodation based on the new Guidance.

Louis C. Klein, Of Counsel in Foley & Mansfield’s Los Angeles office, is a member of the firm’s national employment law group.  For more information or assistance, Lou can be reached at 213-283- 2100 or lklein@foleymansfield.com.

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Is It Illegal To Do Business With Businesses In the Legal Drug Industry?

The recent legalization of medical marijuana in Minnesota “will create significant complications for financial institutions and members of the financial services industry seeking to do business with the companies and their owners engaged in Minnesota’s legal drug trade,” according to attorney  Chris Parrington. Read his full analysis from the July, 2014 edition of Attorney at Law Magazine!

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Roger Yuen Named to Lawyers of Color “Hot List”

Foley & Mansfield is pleased to congratulate attorney Roger Yuen of the firm’s Oakland office on being named to the Lawyers of Color’s Second Annual Hot List, which recognizes early to mid career attorneys excelling in the legal profession. Roger will be feted at a reception for the Western Region on July 23rd in San Francisco The Honorable Jay C. Gandhi, U.S. Magistrate Judge for the Central District of California has been invited to offer remarks. Roger will also be profiled in the Hot List 2014 Issue released on July 28.

The “Hot List” honorees were selected by a committee comprised of the editorial staff and advisers, as well as law school fellows and interns, who reviewed nominations and researched bar publications and legal blogs to identify promising candidates. Selections were also based on research that identified attorneys who had noteworthy accomplishments or were active in legal pipeline initiatives.

Learn more about Roger and his practice here.

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Nine Foley & Mansfield Attorneys Named to 2014 Minnesota Super Lawyers® and Rising Star® Lists

The national law firm of Foley & Mansfield is pleased to announce that nine litigators in the firm’s Minneapolis office have been named to the 2014 Minnesota Super Lawyers® and Rising Star® Lists.

Foley & Mansfield attorneys recognized on the Super Lawyers list are:

  • Stephen J. Foley – Personal Injury Defense: Products
  • Kyle B. Mansfield – Personal Injury Defense: General
  • Thomas W. Pahl – Business Litigation
  • Janet G. Stellpflug – Personal Injury Defense: General
  • Seymour J. Mansfield – International Business
  • Lisa M. Lamm Bachman – Employment Litigation: Defense

Foley & Mansfield attorneys named to the Rising Star list are:

  • Christopher P. Parrington - Business Litigation
  • Wyatt S. Partridge – Real Estate
  • Jamie L. Habeck Paz - Business Litigation

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys. Rising Stars follows a similar process to recognize up-and-coming attorneys who are age 40 or younger, or who have been in practice for 10 years or less. No more than 2.5 percent of lawyers in a state receive this recognition.

Foley & Mansfield, named a 2014 “Go-To” Law Firm for Fortune 500 clients, provides a broad spectrum of services to clients throughout the country.  Celebrating its 25th year in business, Foley & Mansfield is a national law firm with a diverse practice of business and trial attorneys in ten offices across the U.S. We invite you to learn more about how we can serve your business.

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Florida Legal Elite Recognizes Beranton J. Whisenant, Jr. as “Up and Comer” for 2014

Foley & Mansfield is pleased to announce that Beranton J. Whisenant, Jr., a partner in the firm’s Miami office, has been named to the Florida Legal Elite “Up and Comer” list for 2014. Whisenant, Jr. was selected for his work in civil trials.

Florida Legal Elite presents a prestigious roster of attorneys chosen for highest honors by their peers, representing less than 2% of actively practicing Florida attorneys. Now in its eleventh year, the Legal Elite lists are published annually in a special edition of Florida Trend magazine.

We invite you to learn more about Beranton and his practice here.

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Beranton J. Whisenant, Jr. Selected as one of Miami-Dade County’s “40 Under 40 Black Leaders of Today and Tomorrow for 2014″

Beranton J. Whisenant, Jr., a partner in the firm’s Miami office, has been selected by Legacy Miami magazine as one of “Miami-Dade County’s 40 Under 40 Black Leaders of Today and Tomorrow for 2014.”  Beranton will be recognized in the June 30th issue of The Business Monday Section of the Miami Herald.

Legacy is a news/business publication that provides news and information to South Florida’s Black Affluencers and Influencers.

Learn more about Beranton and his practice here.

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Beranton J. Whisenant, Jr. Recognized by the National Bar Association

Foley & Mansfield is pleased to announce that Beranton J. Whisenant, Jr., a partner in the firm’s Miami office, has been named a “Trailblazer Under 40″ by the National Bar Association (the “NBA”), the nation’s oldest and largest bar association of African American Attorneys. He was recognized as a dynamic member who has achieved prominence and distinction in the law, and has demonstrated a strong commitment to advancing the goals and mission of the National Bar Association. Whisenant will be awarded a NBA “Torch” at a ceremony this July during the organization’s 2014 89th Annual Convention in Atlanta, Georgia.

The NBA is a professional network of more than 20,000 lawyers, judges, educators and law students, with 84 affiliate chapters throughout the United States and affiliations in Canada, the United Kingdom, Africa and the Caribbean. The organization is committed to protecting the civil and political rights of the citizens and residents of the United States. For more information, visit www.nationalbar.org.

Learn more about Beranton and his practice here.

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Daniel Ruttenberg Named to 2014 Washington Rising Star® List

Foley & Mansfield is pleased to announce that attorney Daniel Ruttenberg of the firm’s Seattle office has been named to the Washington Rising Star® list for the second consecutive year.  Ruttenberg was again recognized for his work in the area of Personal Injury Defense: Products. He practices in the firm’s Toxic and Mass Tort group, serving a broad range of clients including product manufacturers, premises owners, contractors, and retailers.

Rising Stars recognizes up-and-coming attorneys who are age 40 or younger, or who have been in practice for 10 years or less. The annual selections are made using a rigorous multi-phased process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area.

Learn more about Daniel and his practice here.

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