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Monthly Archives: October 2009

Gun fight at the Justice Corral

Guns of all sorts provide steady fodder for the courts and this month has been no exception.


For instance, there’s the case of a guy who lost his job after his boss’s son decided to grab a shotgun and use him for target practice.


What are the chances that the erstwhile clay pigeon can recover his lost wages?


And how is it that a divorced father can be liable for injuries caused by his son’s wayward use of a paintball gun when the boy was under the supervision of his mother at the time of the accident?


Shotgun alley


You didn’t want to be in Michael Smithhisler’s shoes on Dec. 27, 2007.


Before that day, Smithhisler was a happy-go-lucky employee of Merrill Wolff at Wolff’s Insulation Service in Grant County, Indiana.


But on Dec. 27 the holiday stress apparently got the better of Doug Wolff — Merrill’s son. Yes, good old Doug grabbed a shotgun and opened fire.


We don’t know the particulars, but we do know it must have been a heck of a day at Wolff’s Insulation.


Fortunately, Doug didn’t hit anyone, but after the gunsmoke cleared Smithhisler called the county sheriff, who arrested Doug for criminal recklessness and disorderly conduct.


Smithhisler’s nerves were understandably shattered so he didn’t return to work for several days. When he did, Merrill told him, “I don’t need you any longer.”


While Smithhisler found another job at a lower wage, Doug pled guilty to criminal recklessness for firing a shotgun in the direction of Smithhisler.


And as part of his sentence, an Indiana judge ordered Doug to pay restitution in the amount of $12,789 to Smithhisler for his lost earnings.


The inherent justice of the restitution order seems clear enough, seeing that Smithhisler has a pretty good argument that he was fired because he had called the police on the boss’s son.


But the Indiana Court of Appeals saw things differently.


The court said that even though Doug’s “actions may have indirectly led to Smithhisler’s termination from Wolff’s Insulation and consequent loss of earnings when comparing his 2007 income to his 2008 income, [the state’s criminal restitution law] requires more than that. Because there is no direct and immediate link, it is simply too attenuated to hold Wolff responsible in a criminal proceeding for his father’s actions in firing Smithhisler.”


The court did offer Smithhisler with a glimmer of hope that he might one day be made whole, suggesting that he may have a civil claim against Merrill and Wolff Insulation. (Wolff v. State)


Paintball gun injury 


As a father, how could Chris Braden not be open to the idea of getting his 14-year-old son Brian a paintball gun?


After all, kids seem to be spending more time stalking each other with paintball guns than on their bikes these days.


Brian seemed responsible enough. And how much trouble could he really get in with a gun that shoots paintballs?


Unfortunately, after getting the gun from Chris as a gift, Brian took it over to his mom’s house where he shot young Daniel Russell in the eye at close range. Daniel suffered permanent partial loss of sight and permanent disfigurement of his left eye.


Now there’s no way Chris could be liable for negligent supervision, right?


Chris and Brian’s mom are divorced, and Brian was in his mother’s custody at the time of the accident.


This seemed good enough for a Kansas judge who granted Chris a summary judgment on the negligence claims brought by Daniel Russell’s parents.


The problem was that the trial judge sidestepped the custody issue and granted summary judgment on the ground that the accident was not foreseeable, and the Kansas Court of Appeals earlier this month decided that there just wasn’t enough evidence to support that decision.


Chris argued that the trial judge had already found for him on the issue of foreseeability for purposes of a negligent entrustment claim, and that finding was not being challenged on appeal.


But Chris is not out of the woods just yet.


As the state court of appeals explained, “[f]oreseeability for negligent entrustment is not necessarily equivalent to the foreseeability required for negligent supervision. Even if [Chris] knew or believed that he could control Brian at the time that [Chris] entrusted the gun to him, this does not establish that he knew or should have known ‘of the necessity and opportunity for exercising such control’ on the date of the shooting.” (Russell v. Braden)



— Pat Murphy



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Employee’s ‘wild side’ admissible at trial

Here’s a real shocker! Arguably the nation’s most liberal state supreme court last week allowed an employer to derail a sexual harassment plaintiff’s case by showing that she was not exactly a meek wallflower when it came to workplace hijinks.

Yes, ladies and gentlemen, the Massachusetts Supreme Judicial Court has actually tossed a bone to the defense bar! (Insert raucous cheers, unrestrained applause here.) 

The relationship


Let’s introduce the players to this corporate drama.


First, we have the plaintiff, the effervescent Kimberly Dahms, who plied her charms as director of customer satisfaction for Cognex, a computer design company.


Next, there’s John Rogers. Bon vivant and man about town, the Cognex financial officer allegedly subjected Dahms to quid pro quo sexual harassment over the course of several years.


Finally, we have kindly, patriarchal Robert Shillman, the unsuspecting co-founder and CEO of Cognex, who allegedly failed to put a stop to Rogers’ harassment once Dahms complained, and whose alleged missteps aided Rogers in creating a hostile work environment.


The gist of Dahms’ claim was that Rogers undermined her position at Cognex once she refused to date him.


The nature of the relationship between Dahms and Rogers, however, is in dispute.


Dahms claimed that they were “just friends.” Rogers testified that Dahms had “very strong feelings” for him and had initiated a first kiss.


What is undisputed is that they spent an unhealthy amount of time together both inside and outside the office. Rogers and Dahms traveled to work together, socialized at parties, went on a business trip to Japan, and took a rafting trip together with their future spouses.


And there was evidence that those in the office considered Dahms and Rogers to be an “item.”


It is also undisputed that Dahms eventually complained to Shillman about Rogers. Shillman sternly reprimanded Rogers for engaging in a relationship with a Cognex employee, but didn’t fire him, allegedly in response to a plea by Dahms.


Things deteriorated from that point when Dahms filed a sexual harassment charge with the state civil rights agency and later sued.


The company fired Dahms after she was accused of not being a team player and being preoccupied with her lawsuit to the detriment of her job.


Provocative dress


The whole theory of the defense’s case was that Dahms was a willing participant to the sexualization of her work environment.


Knowing this, Dahms’ lawyer sought to exclude character evidence of Dahms’ “sexual behavior, general sexual predisposition, and ‘wild’ nature.”


But then her lawyer made the apparent mistake of opening the door by attacking Shillman’s systematic attempt to gather evidence from company employees of Dahms’ alleged provocative behavior.


So the jury got to hear evidence that Dahms wore inappropriate and revealing clothing at work (up until the time she filed her sexual harassment charge with the state), that her choice of costumes at company Halloween parties was, shall we say, less than discreet, that she told crude jokes and sexual stories to coworkers, and that she had described to Rogers her sexual preferences.


And the state supreme court said this evidence was okay.


“The evidence of Dahms’s language, apparel, and conduct, as described by [witnesses], was probative of whether she was subjectively offended by her work environment or by Rogers’s conduct. It concerned behavior in the workplace and at company events, or interactions with the defendants by whose conduct she claims to have been harassed. It was not admitted (nor admissible) as character evidence or to paint Dahms as a ‘loose’ woman, predisposed to welcome any advances,” the court said.


The court also said the evidence was probative of Shillman’s state of mind when he sent an e-mail to Cognex’s human resources director asking for photographs and videotapes of Dahms taken at company events.


“Dahms alleged that this e-mail was part of ‘Cognex’s and Shillman’s brutal campaign of retaliation and harassment,’” the court explained.


“Shillman wrote the e-mail after Dahms filed her state civil rights charge] alleging that he had sexually harassed her and had created a hostile environment at the company. In these circumstances, Shillman was properly permitted to explain that he believed the photographs would show that Dahms was an “active participant in the environment at Cognex” (including the company parties), and that her claims of a hostile work environment were therefore ‘totally false.’”


Erroneous jury instruction


Plaintiffs’ attorneys take heart, because Dahms did notch one victory in the state supreme court.


The trial court had instructed the jury that if “you find that Ms. Dahms was a willing participant in sexual behavior in her workplace, or that she willingly participated with Mr. Rogers in sexual banter or discussions of a sexual nature, or that she did not consider his conduct offensive to her at the time it was occurring, then she has not proven this subjective element of her hostile environment sexual harassment claim.”


The Massachusetts high court said this misstated the law.


“We agree that, as given, the sentence objected to by Dahms was an incorrect statement of the law to the extent that it suggested that a judgment for the defendants would be required if Dahms was a willing participant in any sexual behavior in her workplace.


“While it was proper for the jury to consider Dahms’s behavior within Cognex in evaluating her hostile workplace environment claim, and evidence of her willing participation in sexualized behavior in the workplace was probative of whether she was subjectively offended by the work environment that she claims the defendants created, such evidence is not dispositive.


“The fact finder is not required to return a verdict for the defendants merely because the plaintiff participated in sexualized behavior with third-party coworkers,” the court said.


It was a Pyrrhic victory, however, because the jury’s verdict in favor of Cognex, Shillman and Rogers stands.


“We are persuaded that no prejudice occurred. During his instruction, the judge repeatedly pointed the jury’s attention toward the particular conduct alleged against Shillman and Rogers, which formed the basis of the hostile work environment claims.


“In addition, the instruction related only to a single claim. Dahms does not allege error in the judge’s instructions on her claims that Rogers engaged in quid pro quo sexual harassment, that Cognex and Shillman aided and abetted Rogers in this harassment, and that the defendants retaliated against Dahms when she complained. The jury rejected each of these claims, and in doing so, plainly found Dahms’s testimony, which formed the basis of all of her claims, not to be credible,” the court said. (Dahms v. Cognex)


— Pat Murphy



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‘Murder’ gets a new murder trial

We’d all be rich if we had a nickel every time a criminal defendant said he was denied a fair trial because of the shenanigans of prosecutors.

Defense lawyers routinely cry prosecutorial misconduct, and appeals judges just as routinely swat those claims down like flies.


So when the 2nd Circuit last week tossed an attempted murder conviction because the government lawyer in the case was a bit too free and easy with her use of a New York gang member’s nickname, you tend to sit up and take notice.


Laval Farmer is simply a peach of a guy.


According to federal prosecutors, Farmer was a member of the Velt Gangsta Lanes of Roosevelt, New York, on Long Island, a subgroup of the larger Bloods street gang.


On the evening of Sept. 22, 2001, Farmer and several fellow gang members cruised the streets, looking to retaliate against the rival Crips for a beating administered to a fellow Blood.


Farmer and his friends came upon two boys riding bicycles, one of whom had the misfortune of being dressed in blue, the trademark color of the Crips.


Farmer allegedly gunned down the boy in blue, 14-year-old Jose White, mistakenly believing that he was evening the score with the Crips.


After the murder, Farmer moved to Wilkes-Barre, Pennsylvania, where he allegedly shot and wounded fellow Blood Jacquel Patterson in a clash of egos that evidently got out of hand.


The government charged Farmer with the murder of White and the attempted murder of Patterson. Because the attacks were allegedly in furtherance of Farmer’s position in the Bloods, the indictment included a federal racketeering charge.


The indictment also included references to Farmer’s nickname — “Murder.”


Naturally, Farmer’s lawyers wanted all references to the nickname kept out of the trial, but the judge allowed witnesses who knew him as Murder to use the moniker.


Not satisfied, federal prosecutors also repeatedly used the nickname in presenting evidence and dozens of times in argument to the jury.


In her summation, one prosecutor asked the jury, “Now, when opening statements began in this case three weeks ago, you must have been saying to yourself: who would do such a thing? Who would execute a 14-year-old boy simply because he was wearing blue? Well, allow me to reintroduce you to the defendant. That would be Mr. Murder. He would do something like this.”


To top things off, in her concluding remarks the prosecutor commented that Farmer “really tried to prove himself a real gangster, to come up in the gang. You know, maybe live up to his name of Murder.”


Of course, Farmer protested the prosecution’s not-so-subtle use of his nickname when he appealed to the 2nd Circuit following his convictions.


The court found that, because the evidence was so strong, it really didn’t matter as far as Farmer’s conviction for the murder of Jose White.


But with the conviction on the more serious charge safely in hand, the court appeared to take the opportunity to place a shot squarely across the bow of prosecutors working in the 2nd Circuit, warning them to tone it down a bit.


Yes, the court ordered a retrial on the attempted murder charge because Farmer “was denied due process by the prosecutors’ gratuitous exploitation of his prejudicial nickname, ‘Murder.’”


Now, some might say that there was some universal justice at work in the fact that Farmer became the victim of a nickname that for years he carried with pride when among his buddies.


But the court didn’t see it that way.


“When a defendant charged with a crime of violence is identified before a jury by a nickname that bespeaks guilt, violence, or depravity, the potential for prejudice is obvious. Before receiving such evidence over a defendant’s objection, a trial court should consider seriously whether the probative value is substantially outweighed by any danger of unfair prejudice, and whether introduction of the nickname is truly needed to identify the defendant, connect him with the crime, or prove some other matter of significance. Even so, a potentially prejudicial nickname should not be used in a manner beyond the scope of its proper admission that invites unfair prejudice,” the court said.  (U.S. v. Farmer)


— Pat Murphy



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Tip of the day: Keep the ‘personal’ charges off the credit card

We all love the convenience of credit cards, but you’d think a Philadelphia lawyer would know better than to allow a sultry blonde Pilates instructor to place charges for her “personal” services on his Discover Card.

The fun fact from the whole tawdry affair is that Discover gets bushwhacked with a federal lawsuit for disability discrimination.


Here’s the deal.


John F. Peoples is a blind lawyer who maintains an office in suburban Philadelphia.


Ginger Dayle is a self-described actress, dancer and fitness instructor.


According to Peoples, he paid Dayle to have sex with him on multiple occasions in 2007.


Peoples claimed that the encounters took place in Dayle’s apartment and were paid for by charges to his Discover Card. Peoples said he gave the card to Dayle when she filled out the credit charge receipts.


Peoples signed the receipts that Dayle prepared but, because he’s blind, there was an element of faith that she had filled in the correct charges, which he claimed usually ranged from $275 to $375 an hour.


Gee, was Peoples shocked when his November 2007 Discover bill came in the mail!


Peoples told the Philadelphia Daily News that he had his mom read him the statement. (Okay, we can all agree that it would have been awkward to have mom around when Dayle actually filled out the charge receipts.)


So when mom reads him the statement, Peoples learns that on ten occasions Dayle charged him $1,110. For another session, Dayle charged him $1,600.


Let the lawsuits begin!


Peoples sued Dayle for fraudulently overcharging his Discover account.


Dayle denies being a prostitute, claiming that she was only providing Peoples with Pilates instruction. (For $1,600 an hour, she must be a very good Pilates instructor. Wocka! Wocka!)


So Dayle countersued Peoples for battery and emotional distress, saying that the lawyer inappropriately touched her during their sessions together.


Peoples maintains that the notion Dayle was providing Pilates instruction is “ridiculous,” telling the Daily News that he suffers from arthritis, diabetes and chronic fatigue syndrome.


And because he’s blind, he thinks he also has a viable disability discrimination claim against Discover.


In a federal complaint, Peoples alleged that Discover was in violation of the Americans with Disabilities Act because the credit card company fails to provide customers with vision impairments a “reasonable accommodation of protection against merchant fraud in deliberately misstating the amount of … credit card receipts.”


The whole mess landed in the lap of U.S. District Judge Edmund Ludwig of the Eastern District of Pennsylvania, where Discover made the powerful argument that Peoples breached his card member agreement because his purchase of alleged prostitution services was unlawful and, therefore, a “prohibited transaction.”


Evidently just itching to be rid of the ugly matter, last month Judge Ludwig gladly accepted Discover’s argument.


“Under Pennsylvania law, patronizing a prostitute is illegal,” the judge wrote. “[Peoples] testified that the charges in dispute were for prostitution services, and, consequently, he cannot recover based on them.”


For good measure, the judge found that Peoples couldn’t sue under the ADA because Discover Card services cannot be said to constitute a “public accommodation” as set forth in Title III.


“The evidence is that [Peoples] used his Discover Card to pay for the transactions with Dayle at her apartment,” Judge Ludwig explained. “Though its credit services can be used by cardmembers at a merchant’s place of accommodation, [Discover] itself does not own, lease or operate those locations. Because there is no connection here between the services offered by [Discover] and a physical place of accommodation, plaintiff’s Title III claim must be dismissed.” (Peoples v. Discover Financial Services, Inc.)


With the federal claims out of the way, it will be left to the state courts to decide the remaining claims between Peoples and Dayle.


— Pat Murphy



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Lawyer gets dressed down for dressing down

Ever wish you didn’t have to pull on the old monkey suit to appear in court?

“Yes, your honor, these are sweat pants I am wearing. You see, I ate Chinese yesterday and it’s sitting in my gut like an anvil, so I needed a few extra inches this morning, if you get my drift.”

Or maybe you just felt the need to make a statement.


“I see you’re admiring my Homer Simpson ‘Me so hungry!’ t-shirt, judge. I like it too and it really captures my mood today.”


Well, judges tend to be finicky creatures when it comes to courtroom decorum and showing respect for the robe, so it comes as no surprise that a New York lawyer got absolutely nowhere when he recently argued that he had a constitutional right to show up in court wearing jeans and a baseball cap.


Yes, on a mild March day in 2008, attorney Todd C. Bank showed up in the Civil Court of the City of New York in Queens wearing an “Operation Desert Storm” baseball cap.


The cap nicely complemented his jeans and button-down shirt.


Now, if Todd and Judge Anne Katz were wolfing down hot dogs together at Yankee Stadium, there wouldn’t have been a problem.


But because Todd was appearing pro se in a court proceeding, Judge Katz admonished the lawyer for being dressed inappropriately.


So off we go to federal court where Todd argued that his right to free speech under the First Amendment and his liberty interest in his own personal appearance under the Fourteenth Amendment permitted him to wear jeans and a hat in court.


And there stood U.S. District Judge Nicholas Garaufis waiting to whack that softball out of the park.


In dismissing the lawsuit last week, Judge Garaufis explained that Todd’s “desire to make a fashion statement is far from a fundamental right. [The state court’s] regulation of [Todd’s] attire is, therefore, valid ‘unless it is so irrational that it may be branded arbitrary, and therefore a deprivation of [Todd’s]] liberty interest.’ …


“[A] court’s interests in maintaining proper decorum, etiquette, and respect for the judicial process are reasonably promoted by prohibiting litigants from wearing hats in the courtroom or appropriately admonishing them for wearing casual attire. Such actions are ‘rationally related’ to a ‘legitimate government interest’ and survive rational basis review.” (Bank v. Katz)


— Pat Murphy



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