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Are Cigarettes Defective in Design? JANUARY 2009 VOL. 81 | NO. 1 JournalNEW YORK STATE BAR ASSOCIATION Are Cigarettes Defective in Design? California and New York Also in this Issue Diverge in Approach and Result The Eyewitness Conundrum The Past as Present: by Robert G. Knaier The Last “Dead Heat” in the State Senate, 100 Years Ago The Medicare Secondary Payer Statute BESTSELLERS FROM THE NYSBA BOOKSTORE January 2009 Construction Site Personal Injury NYSBA Practice Forms on Representing People with Disabilities, Litigation — New York Labor Law CD-ROM—2007–2008 FFormsorms Third Edition (2007 Revision) oonn CCDD §§ 200, 240(1), 241(6) (2008 Revision) Access more than 700 forms for A comprehensive reference that covers the myriad use in daily practice. legal concerns of people with disabilities. It is the Perhaps no single scheme of statutory causes of action PN: 61508 / Member $280 / List $315 ideal reference for those who want a “one-stop” has initiated more debate. This text provides a road source for a thorough overview of the legal frame- map through this at-times confusing area of law. New York State Physician’s work affecting individuals with disabilities. Includes a summary of key case developments. HIPAA Privacy Manual (2007) PN: 42158 / Member $160 / List $200 / 1,588 pages PN: 4047 / Member $80 / List $110 / 480 pages A hands-on tool for health care providers FFormsorms and their legal counsel, this publication oonn CCDD Domestic Violence (2008) provides guidance for a physician’s office Domestic violence cases now have a bearing on every to respond to routine, everyday inquiries NEW! aspect of family and matrimonial law. This book is a about protected health information. Collections and the Enforcement of practical guide, providing needed PN: 4167 / Member $75 / List $95 / 288 pages information from experts in the field. Money Judgments, Second Edition (2008) PN: 4076 / Member $35 / List $45 / 328 pages Practitioner’s Handbook for Monetary awards determined in court cases involve Appeals to the Court of Appeals, Entertainment Litigation (2007) an array of procedures that attorneys must know. The This reference covers the fundamental issues that are Third Edition (2007) new second edition, under the editorship of Paul A. central to a creative artist’s career. It is a basic, practi- This new edition updates topics on taking and Peters, not only updates case and statutory law but cal guide that gives creative artists and their represen- perfecting criminal and civil appeals, alternative also addresses new issues within this field, providing tatives insight as to how to avoid the courtroom. procedures for selected appeals, and how to write in-depth analyses of key topics. PN: 4087 / Member $35 / List $55 / 230 pages and present the appeal. PN: 40308 / Member $125 / List $170 / 584 pages PN: 4017 / Member $48 / List $57 / 234 pages New York Lawyer’s Deskbook, Estate Planning and Will Drafting Public Sector Labor and Second Edition (2008–2009) in New York (2006 Revision) FFormsorms Employment Law, Third Edition (2008) oonn CCDD WINNER OF THE ABA’S CONSTABAR AWARD Provides a practical overview of the complex This landmark text is the leading reference on public The Second Edition consists of 25 chapters, each rules and considerations involved in the various sector labor and employment law in New York State. covering a different area of practice with practical aspects of estate planning in New York State. Everyone will benefit from the comprehensive cover- advice in that particular area of law. Includes numerous sample wills and checklists. age of this book, whether they represent employees, PN: 4150 / Member $250 / List $325 / 2,490 pages PN: 4095C / Member $175 / List $210 / 822 pages unions or management. Practitioners new to the field, as well as seasoned attorneys, will benefit from the New York Lawyer’s Formbook, Impasse Resolution (2008) book’s clear, well-organized coverage of what can be Second Edition (2008–2009) This publication provides both an overview and a very complex area of law. The Formbook is a companion volume to the in-depth discussion of the impasse resolution proce- PN: 42057 / Member $150 / List $185 / 1,568 pp. New York Lawyer’s Deskbook and includes 21 dures under the Public Employees Fair Employment sections, each covering a different area of practice. Act, commonly known as the Taylor Law. Real Estate Titles, PN: 4155 / Member $250 / List $325 / 3,256 pages PN: 4122 / Member $30 / List $40 / 124 pages Third Edition (2007 Revision) The Plaintiff’s Personal Injury Action An all-time bestseller, this 2007 Edition is edited by Legal Careers in New York State James M. Pedowitz, Esq., a nationally renowned in New York State Government, Ninth Edition (2008) expert in real estate law and title insurance, and This treatise answers the tough questions faced by the plaintiff’s personal injury attorney every day – Compiled to assist law students and lawyers who are authored by some of the most distinguished practitio- liens, special needs trusts, structures, Medicare and considering careers and/or work experiences in public ners in the field. This is an essential guide to the many Medicaid, conflicts of interest, workers’ compensa- service with the State of New York. This edition has complex subjects surrounding real estate law. Includes tion, no-fault, bankruptcy, representing a party in been expanded to include comprehen sive information the new ALTA policies and TIRSA endorsements. infancy, incompetency, and wrongful death. on employment opportunities with the various levels PN: 521007 / Member $150 / List $180 / 1,632 pages PN: 4242 / Member $175 / List $225 / of government in New York State. approx.1,500 pages PN: 41298 / Member $30 / List $45 / 264 pages New York Municipal Formbook, COMING SOON! Third Edition (2006) FFormsorms oonn CCDD Foundation Evidence, Questions and A rich resource for attorneys dealing with Courtroom Protocols, Second Edition local government procedures. Over 1,100 * Free shipping and handling within the continental U.S. The cost for shipping and handling outside the forms covering all aspects of municipal law. continental U.S. will be added to your order. Prices Model Partnership Agreements PN: 41606C / Member $150 / List $185 / 3,318 pages do not include applicable sales tax. Expand your professional knowledge NEW YORK STATE BAR ASSOCIATION 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB0408 NEW YORK STATE BAR ASSOCIATION JournalNEW YORK STATE BAR ASSOCIATION BOARD OF EDITORS EDITOR-IN-CHIEF David C. Wilkes Tarrytown e-mail: [email protected] Mary Grace Conneely Monticello Willard H. DaSilva Garden City Philip H. Dixon Albany Elissa D. Hecker Irvington Judith S. Kaye New York City Eileen D. Millett New York City Thomas E. Myers Syracuse John B. Nesbitt Lyons Gary D. Spivey Albany Sharon L. Wick Buffalo MANAGING EDITOR Daniel J. McMahon Albany e-mail: [email protected] ASSOCIATE EDITOR Philip C. Weis Oceanside PUBLISHER Patricia K. Bucklin Executive Director NYSBA PRODUCTION STAFF ASSISTANT EDITOR Joan Fucillo DESIGN Lori Herzing Erin Corcoran EDITORIAL OFFICES “The NYSBA is a wonderful, welcoming legal community One Elk Street Albany, NY 12207 where members enjoy diversity of thought, lively debate, (518) 463-3200 FAX (518) 463-8844 educational insight, and a unique camaraderie among www.nysba.org attorneys. The professional and personal connections made ADVERTISING REPRESENTATIVE at NYSBA Section meetings and events last a lifetime. It is Network Media Partners Chris Martin one of the most valuable resources in my practice.” Executive Plaza 1, Suite 900 11350 McCormick Road Rosemarie Tully Hunt Valley, MD 21031 (410) 584-1960 Member since 1993 e-mail: [email protected] EUGENE C. GERHART (1912 – 2007) RENEW FOR 2009 Editor-in-Chief, 1961–1998 www.nysba.org/renew2009 Thank you for your membership support. CONTENTS JANUARY 2009 ARE CIGARETTES DEFECTIVE IN DESIGN? California and New York Diverge in Approach and Result by Robert G. Knaier 10 DEPARTMENTS 5 President’s Message The Eyewitness Conundrum 7 In Memoriam: 24 Lorraine Power Tharp How Courts, Police and Attorneys Can David S. Williams Reduce Mistakes by Eyewitnesses 8 CLE Seminar Schedule by BENNETT L. GERSHMAN 20 Burden of Proof by David Paul Horowitz 33 The Past as Present: The Last “Dead 44 Legal Research Heat” in the State Senate, 100 Years Ago by William H. Manz by BENNETT LIEBMAN 48 Attorney Professionalism Forum The Medicare Secondary Payer Statute 50 Language Tips 39 Medicare’s Recovery Rights in the by Gertrude Block Context of Liability Insurance (Including 51 New Members Welcomed Self-Insurance) and No-Fault Insurance 60 Classified Notices by ROBERT G. TRUSIAK 60 Index to Advertisers 63 2008–2009 Officers 64 The Legal Writer by Gerald Lebovits The Journal welcomes articles from members of the legal profession on subjects of interest to New York State lawyers. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the Journal, its editors or the Association unless expressly so stated. Authors are responsible for the correctness of all citations and quotations. Contact the editor-in-chief or managing editor for submission guidelines. Material accepted by the Association may be published or made available through print, film, electronically and/or other media. Copyright © 2009 by the New York State Bar Association. The Journal ((ISSN 1529-3769 (print), ISSN 1934-2020 (online)), official publication of the New York State Bar Association, One Elk Street, Albany, NY 12207, is issued nine times each year, as follows: January, February, March/April, May, June, July/ August, September, October, November/December. Single copies $20. Periodical postage paid at Albany, NY and additional mailing offices. POSTMASTER: Send address changes per USPS edict to: One Elk Street, Albany, NY 12207. NYSBA Journal | January 2009 | 3 PRESIDENT’S MESSAGE BERNICE K. LEBER United Together in Troubled Times “[The American Dream] has thrived because in our darkest hours, we have risen above the smallness of our divisions to forge a path towards a new and brighter day.
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