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Monthly Archives: November 2009

Poor Richard: Service monkey gets the boot

Edwin Lanseer’s “The Monkey Who Had Seen the World”

Edwin Lanseer’s “The Monkey Who Had Seen the World”


We all love our pets.

Why, the princess of my home is Hedy, a three-year-old chocolate Labrador retriever. She’s at my feet when I’m working at my laptop, and on my lap when I’m watching the boob tube at the end of a long day.


And I tend to take her with me when I hit the road.


Yep, if you catch me running errands you’ll invariably see Hedy, with her head stuck out the rear window of my car, ears flapping in the wind, and that dopey ain’t-life-a-wonderment grin.


One year, my son and I even tried to have Hedy’s picture taken with Santa.


That didn’t go over too well with Hedy. I won’t go into the details but, hey kids, let’s just say that Santa was healed up in plenty of time to make his Christmas rounds.


The point I’m leading to is that I can understand why someone like Debby Rose enjoys having Richard, her pet Bonnet Macaque monkey, accompanying her wherever she goes.


That being said, I can also understand why stores, restaurants and hospitals in Springfield, Missouri, were getting fed up with Richard showing up in their cafeterias.


You see, Richard just wasn’t riding around town with Debby. The mother of six claimed that Richard was her service animal, helping her cope with agoraphobia and anxiety disorder.


So Richard accompanied her when she went to Wal-Mart, attended classes at Cox College, and visited South Cox Hospital.


That was until the Springfield-Greene County Health Department started receiving complaints about Richard being present in the food service cafeterias operated at those places.


After an investigation, the health department determined that Richard was just Debby’s pet, not a trained service animal.


Accordingly, the department issued a bulletin to food service establishments throughout Springfield instructing them that allowing Debby to enter their establishments with Richard would constitute a violation of Missouri health codes.


With Richard banned, Debby sued the department, Wal-Mart and the Cox Health Systems for violating her rights under the Americans with Disabilities Act.


Now, even though Richard hasn’t been specifically trained as a service animal, Debby claims that her furry friend serves a variety of functions that help her cope with her medically diagnosed conditions.


According to Debby, her agoraphobia and social anxiety disorder substantially limit her ability to function normally in public. She says that, without Richard, her “condition worsens and [she] can barely function at all, [she] will not leave [her] home, and sometimes will not get out of bed.”


For instance, she says that Richard’s hugs help to reduce her anxiety in public places.


Okay, I can see that. Everybody likes a hug.


Debby also says that, when she’s not functioning well, Richard can help her with minor tasks at home, like getting her the remote.


Now there’s a monkey I could use. But not if it’s one of those pooh-throwing monkeys. At home, I draw the line when it comes to pooh throwing.


Debby also says that Richard helps her with her driving, activating her turn signal to alert her when to turn into her street or driveway.


Okay, let’s stop right there.


I’m not sure I feel all that comfortable with the thought of someone driving around with a monkey copilot. In fact, I’m pretty sure that if you’re taking directions from a monkey it’s time to surrender the old driver’s license.


The problem for Debby in her ADA lawsuit was that, while Richard might be a great pal, he doesn’t qualify as a service animal under the Act.


That’s the conclusion reached last month by U.S. District Judge Richard Dorr when he granted summary judgment for the health district, Wal-Mart and Cox Health Systems.


“On the whole, there is insufficient evidence indicating the monkey was specifically trained to perform any ‘tasks’ related to Plaintiff’s disorders. There is also no specific evidence indicating Plaintiff’s disability requires the use of a monkey to perform day-to-day activities,” Dorr wrote. “While the Court does not doubt that the monkey provides Plaintiff with a sense of comfort and helps her cope with any anxiety she may have, the ADA requires more for an animal to qualify as a service animal.”


Moreover, the judge found that Debby wasn’t a person with a disability entitled to the ADA’s protections.


“Though Plaintiff claims to suffer panic attacks on occasion that limit her ability to go out in public, she offers no specific instances where her impairments impeded her ability to perform any major life activities,” the judge explained, “At most it appears Plaintiff’s impairments offer no more than mild limitations compared to the general population, and the Eighth Circuit has repeatedly found individuals with similar limitations do not qualify as disabled under the ADA.”  (Rose v. Springfield-Greene County Health Department)


— Pat Murphy


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Stupid juror tricks: The Flirt

There’s always one. That juror you have an uneasy feeling about.

You can’t put your finger on it.


The juror somehow made it through voir dire okay, but your “nut job” detector has been beeping insistently throughout trial, and you just hope and pray you can get to a verdict.


You breathe a sigh of relief once deliberations have begun. Another couple of hours and your worries should be over.


But then that juror passes a note to the judge. Here we go.


The farce of farces played out in the County Court of Warren County, New York.


In May 2008, Alicia Lewie was on trial for complicity in the beating death of her seven-month-old son at the hands of her live-in boyfriend. She faced charges of manslaughter, reckless endangerment and endangering the welfare of a child.


The trial was held in the courtroom of Judge John Hall.


Michael Keenan represented Lewie at trial.


District Attorney Kathleen Hogan handled the state’s case. Hogan was aided by Assistant District Attorney Matt Burin.


Hogan presented a strong case showing that Lewie stood by while her boyfriend abused her son. As the jury entered deliberations, guilty verdicts appeared in the offing.


But then a female juror sent Judge Hall a note that dumbfounded one and all.


First, she asked permission to read a statement in which she thanked everyone involved in the case, including the defendant, for allowing her to serve as a juror. (Oh my God! A genuine Mrs. Center of the Universe!)


So having erased any doubts that the trial was actually all about her, the juror proceeded to lob another bombshell.  


She asked the court to refer her to a divorce lawyer and — describing him as a “cutie” — requested the name and phone number of Assistant District Attorney Burin.


Seeing where the case was heading, Keenan eagerly demanded a mistrial on the ground that the juror was clearly biased in favor of the prosecution.


That must have been a real kick in the teeth to Kathleen Hogan, seeing her whole case jeopardized because some loopy juror confused her newbie second chair with Johnny Depp.


And you can just imagine Judge Hall, feeling that old tension headache coming back, worriedly running his fingers through his famous gray mane as he tries to figure out a way to avoid having the fruits of a jury trial flushed down the tubes.


You see, there were no alternate jurors available.  


So in an effort to salvage the trial, Hall immediately reprimanded the juror, making it crystal clear that her actions were inappropriate. That done, the judge conducted an inquiry into her ability to remain fair and impartial.


Satisfied with Mrs. Lonely Heart’s profuse apologies, Judge Hall refused to declare a mistrial and Lewie was convicted.


While a tough call, it seems as though Hall made the right decision.


Earlier this month, the New York Appellate Division agreed that a mistrial was unwarranted.


Under state law, a juror must be discharged only if she “is grossly unqualified to serve in the case or has engaged in misconduct of a substantial nature.”


The appellate court concluded that the lovelorn juror’s expressed infatuation did not rise to that level.


“While the note was undoubtedly inappropriate, we agree with County Court that a mistrial was not required. Not only did the juror repeatedly assure the court that she could be fair, but she recognized the inappropriateness of her actions, apologized to all concerned and, more importantly, did not at any time express a predisposition towards any of the parties involved in the trial. …


“County Court conducted an appropriate inquiry into the juror’s ability to be fair and justified its conclusion that she was not of ‘a state of mind which would prevent the rendering of an impartial verdict,’” the appeals court said. (People v. Lewie)


— Pat Murphy


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The Wizard of Id conjures up a mistrial

A PowerPoint presentation can be a great way for a litigator to explain a client’s case to a jury. The deft use of visuals helps lead jurors to the conclusions you wish them to reach.

Why, even interjecting a touch of humor can be a powerful way to make a point.


But who’d have thought that a defense lawyer could derail his medical malpractice case by showing a funny little comic strip to the jury?


Last week, West Virginia’s highest court decided that an attorney’s use of a “Wizard of Id” cartoon to slam medical malpractice suits was over the top.


So the estate of Julia Toler gets a second shot in its wrongful death suit against Dr. Edward R. Setser.


Toler was 61 years old in 1999 when Setser performed open heart surgery for the purpose of mitral valve replacement. During the course of the surgery, Toler suffered massive bleeding due to a tear in the aorta that occurred as Setser was separating the patient’s sternum. The complication left Toler in a semi-comatose state until her death in 2003.


Toler’s estate sued for medical malpractice, alleging that Setser should have ordered a preoperative CT scan of the chest. The CT scan purportedly would have disclosed that the space between Toler’s sternum and the aorta was inadequate to permit the procedure to be performed without complications.


The gist of Setser’s defense was that an aortic tear was a common, unavoidable risk of the surgery, one heightened by the presence of scar tissue from a previous open heart surgery performed on Toler.


At trial, all went according to Hoyle until defense counsel (who the court declines to clearly identify) rolled out his PowerPoint presentation during closing argument.


Setser’s lawyer placed on the screen a cartoon from the “Wizard of Id” comic strip.


The first of three frames showed a fortune teller seated at a table with a client. With her hands placed on a crystal ball, the fortune teller says “I’ve made contact with your recently departed Uncle Ned.”


In the second frame, the client asks the fortune teller, “You have? What did he say?”


In the final frame, the fortune teller responds “He wants you to sue the doctor.”


Yep, a real gutbuster.


While showing the cartoon, defense counsel commented on how it reflected on today’s society.


Unable to leave well enough alone, defense counsel’s next slide, entitled “Dr. Setser Can’t Win,” had a list of bullets points explaining how his client was in a no-win situation and taking shots at plaintiff’s counsel — Marvin Masters — and the plaintiff’s expert witness —  Dr. Steven Herman:


1 * No Matter What Course He Takes, There Are Going to Be Potential Life Threatening Complications That Can Not Be Avoided
 2 * If One of Those Complications Occur, He is Going to be Criticized For Not Taking the Other Course
 3 * Mr. Masters and his Expert, Dr. Herman, Will Take a Bad Result and Turn it Into Malpractice Every Time


Naturally, Masters objected and sought a mistrial, arguing in particular that the defense’s PowerPoint slides and closing argument violated a pretrial order that the issue of West Virginia’s medical malpractice “crisis” would not be placed before the jury.


While the trial judge generally sustained the objections, he declined to grant a mistrial and the Toler estate found itself on the losing side of the jury’s verdict.


But the West Virginia Supreme Court of Appeals just couldn’t stomach the comic strip and other elements of the PowerPoint presentation.


With regard to the “woe is me” bullet points, the court found that “defense counsel personalized the effects of his rhetoric through the use of demonstrative aids to argue that both Mr. Masters and Dr. Herman were intent on pursuing claims of medical malpractice regardless of whether such claims had merit. …


“The defense’s theory was essentially that if death results from medical treatment in a high risk scenario, a malpractice claim was inevitable if Mr. Masters and Dr. Herman were involved in the case,” the court explained. “This type of character derogation is clearly outside the bounds of permissible argument in summation.”


And then there was the matter of the “Wizard of Id” cartoon.


“While there may be disagreement as to whether the cartoon directly addresses a medical malpractice crisis, it cannot be argued that the cartoon had any relevance to the evidence before the court. And, given the clear jab at society’s penchant for suing doctors, it is difficult to view the cartoon as anything other than an attempt by defense counsel to gain sympathy for Dr. Setser while prejudicing the jury against the plaintiff. …


“[W]e cannot escape the conclusion that the decision to include the cartoon as part of summation appears to be a thinly-veiled attempt by defense counsel to inject, albeit through indirect means, references to matters that the trial court had proscribed. We strongly disapprove of this seemingly ‘back door’ method to insert a wrongful element of prejudice into the trial,” the court said. (Jones v. Setser)


— Pat Murphy


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Snarky e-mail gets employee fired

Nothing gets the blood flowing like an office brouhaha. 

Who messed up? Who’s got the inside track on that promotion? And what’s the deal with Phyllis in accounting?


What gets me is how each and every one of us is smarter than our bosses. Gee, what are the odds of that?


Most is harmless chatter, but there are lines that you do not cross. A California law librarian just learned that lesson the hard way.


Michael Kaye worked for the San Diego County Public Law Library. A reference librarian, Kaye also taught the library’s appellate course for self-represented litigants.


The final chapter of Kaye’s tenure with the library began innocuously enough.


In February 2006, he accepted an invitation to be a panel member for a judicial conference about helping pro se litigants with appeals.


Kaye’s boss, Joan Allen-Hart, raised a stink because the invitation wasn’t routed through her desk. In turn, Kaye became miffed because Allen-Hart had raised questions about the matter, so he rescinded his invitation to the conference.


The stage was set for Kaye to take the misstep that ended his job.


Allen-Hart sent an e-mail to Kaye and other librarians setting the agenda for an upcoming staff meeting.


Still nursing bruised feelings over the conference flap, Kaye used the e-mail to vent his feelings.


In a lengthy response e-mail, which he copied to his coworkers, Kaye complained that the library’s management regarded its reference librarians as “fungible and disposable peons.”


He proceeded to take pot shots at Allen-Hart’s management style, describing certain aspects as being “hypocritical.” He complained of her having a “hand-down-the-law approach” that “smacks of autocracy.”


After an aside to what he considered wasteful and extravagant spending at the library, Kaye got down to the heart of his displeasure, characterizing Allen-Hart’s inquiry into his judicial conference invitation as being humiliating and vindictive. He suggested that the inquiry “was really a pretext for some other hidden agenda,” speculating that Allen-Hart and another supervisor were looking for a reason harass him into early retirement.


After making thinly veiled accusations of misconduct by library management, Kaye concluded by asserting that he and his colleagues “work under an autocratic command structure and that reference staff meetings do not really serve much purpose.”


With a flourish, he proclaimed, “Let the managers make their decisions without any pretense of collaboration and hand down their fiats from on high.”


Now, we can all be sure that Kaye was the toast the librarians’ lounge that week, lots of atta-boys and you-tell-ems.


But there’s an unfortunate truth about bosses. They can fire you. And that’s what Allen-Hart set about doing to Kaye, claiming that his e-mail was a clear case of insubordination.


Most of us have probably witnessed similar tiffs in the workplace, tiffs that haven’t resulted in anyone getting fired.


But it seems likely that there was some long-standing acrimony between Kaye and Allen-Hart and, to Kaye’s misfortune, he had provided Allen-Hart with the ammunition to end whatever conflict that existed once and for all.


Kaye had tweaked the tiger’s tail once too often. And as an at-will employee, he didn’t have much recourse.


Of course he sued for wrongful discharge, perhaps his strongest argument being that his e-mail was protected speech under the California Constitution.


Under state law, however, when public employees make statements pursuant to their official duties, the state’s constitution does not insulate their communications from employer discipline.


Last week, the California Court of Appeal applied the state standard to uphold the dismissal of Kaye’s lawsuit.


“We have not located any California authorities affording public employees greater protection in this area,” the court said. “Although one appellate court was specifically invited to find greater protection under the California Constitution, it declined the invitation observing, ‘federal law has been leading the way for California cases involving discipline of employees for free speech activities, and we see no reason to depart from its essential reasonableness.’” (Kaye v. San Diego County Public Law Library)


— Pat Murphy


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Lawyer takes the money and runs

What do you do if you negotiate a personal injury settlement on behalf of a client but the opposing attorney takes the money for himself and disappears?


Cry in your beer, says the Nevada Supreme Court.


The out-of luck client in a case decided late last month was Valley Hospital Medical Center of Las Vegas.


The family of Bobby Garner sued the hospital for wrongful death, alleging that the 69-year-old died in 1998 after hospital staff negligently failed to reconnect cardiac telemetry equipment following an MRI.


The Garner family hired Lawrence Davidson to pursue the case and pursue it he did.


He and the hospital’s lawyers got down to business and negotiated a $160,000 settlement. A stipulated final judgment was entered in Nevada state court, which dismissed the wrongful death suit with prejudice.


All seemed well until everyone was surprised to learn that Davidson had settled the case without the knowledge or approval of the Garners, forged the necessary settlement papers, and disappeared with the money.


Although no one has seen Davidson since the end of 2005, warrants are out for his arrest and the lawyer has been disbarred.


Naturally, the Garners wanted to resurrect their wrongful death suit.


But Valley Hospital felt it was an innocent victim of Davidson’s fraud and that the final judgment in the case should stand.


After all, the Garners hired Davidson in the first place, and they should bear the burden of their lawyer’s misconduct, right?


And the Garners were not exactly models of diligence in seeking to set aside the judgment.


You see, even though they learned of Davidson’s misconduct from the State Bar of Nevada within weeks of the court entering the stipulation and order of dismissal, they waited almost 18 months before filing their motion for relief from judgment under the state’s version of Civil Rule 60(b).


Valley Hospital argued that this fact alone meant that the Garners should be barred from obtaining relief by the six-month limitations period for 60(b) motions.


But the Nevada Supreme Court said that Rule 60(b)(3) “by its terms only applies to fraud ‘of an adverse party.’ The district court found that neither Valley Hospital nor its lawyer had any knowledge of or complicity in Davidson’s fraud.  Davidson victimized them, equally with the Garners. [Rule] 60(b)(3) and its six-month limitations period thus do not apply, because  the Garners’ motion was not based on ‘fraud (whether . . . intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party.’”


And after finding that the Garners’ motion for relief from judgment was not subject to the Rule’s six-month limit, the court proceeded to find that lawyer fraud in connection with a stipulated final judgment can qualify as a “fraud upon the court” under 60(b)’s savings clause.


“In this case, Davidson obtained Valley Hospital’s lawyer’s signature on the stipulated judgment and presented it to the district judge, who signed and entered it as the final judgment in the case, forever concluding the Garner family’s wrongful death claims,” the court said. “In so doing, Davidson acted as an officer of the court and misrepresented a fraudulent settlement to the district court judge as genuine.”


So the Garners’ motion was timely. But were they entitled to have the settlement with Valley Hospital overturned and proceed with their wrongful death suit?


Yes, the state supreme court said, with the proviso that Valley Hospital will be credited with the $160,000 Davidson stole against any eventual recovery by the Garners.


Valley Hospital vigorously argued that the Garners’ were bound by the settlement because Davidson acted within his authority as their attorney.


But the court found all sorts of flaws with this contention.


“Valley Hospital makes much of the fact that the Garners’ retainer agreement included a paragraph entitled ‘power of attorney’ that gave Davidson the power to sign releases ‘for and on behalf of the client.’ This argument is a nonstarter, however, because Davidson did not use the power of attorney to carry out his fraud. …


“Davidson forged each of the Garner family member’s signatures in original ink on the release, even going so far as to steal a notary stamp from a neighboring office and forging the notary’s signature on the release. Furthermore, the retainer agreement containing the power of attorney provided, ‘settlement of the claim will not be made without client’s consent.’  Based on these facts and the testimony it heard from the Garner family members, the district court expressly found that Davidson accomplished his fraud without the express, implied, or apparent authority of his clients,” the court said.


The court concluded that the “district judge’s finding that the court, equally with the Garners, the Hospital, and the Hospital’s lawyer, was defrauded by Davidson, and its conclusion that this fraud was intolerable and justified vacating the stipulated judgment the court had signed, were well within its discretionary authority to decide.” (NC-DSH v. Garner)


— Pat Murphy



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Casino can’t ban card counter

The glittering palaces of Las Vegas stand testament to the fact that gambling casinos do a good job of ensuring that the odds are stacked in their favor.

So it’s sorta refreshing to see a small-time gambler put one over on the gaming industry.


Tom Donovan, our hero in this story, likes to play blackjack at the Grand Victoria riverboat casino in Rising Sun, Indiana.


For the uninitiated, blackjack is the card game in which the object is to accumulate cards with a value nearer to 21 than the dealer.


Donovan also happens to be a card counter.


Card counting is a tactic used by some blackjack players to determine when they have an advantage against the dealer. Card counters systematically keep track of the cards as they are dealt and adjust their bets accordingly.


Casinos don’t like card counting because someone skilled in the art can actually increase their chances of winning.


Apparently, Donovan is a pretty good card counter because he came to the attention of Patrick Banfield, the blackjack pit boss at the Grand Victoria.


Now, card counting isn’t illegal in Indiana so long as you do it in your head, but casinos like to limit their losses.


Not liking what was going on at his blackjack tables, Banfield allegedly communicated to Donovan that he could continue to play at the Grand Victoria only so long as he limited his bets to $25 per hand.


All was well until June 2006 when Sonny Duquette (gotta love that name) replaced Banfield as the pit boss.


Duquette barred Donovan from the blackjack tables altogether, and later kicked him out of the casino.


So we have our lawsuit.


Donovan sued Grand Victoria for breach of implied contract based on Donovan’s alleged understanding with Banfield.


In addition, Donovan requested a declaratory judgment providing that he could not be excluded from blackjack for counting cards.


Donovan got nowhere with Judge Robyn Moberly of the Marion Superior Court, but last Friday the Indiana Court of Appeals issued a decision that should warm the hearts of card counters the world over.


No, the court upheld the dismissal of Donovan’s contract claim, finding a “lack of mutuality of obligation” regarding his understanding with the old pit boss Banfield.


But, going to the heart of the matter, the court rejected Grand Victoria’s argument that the casino had a common law right to exclude any prospective patron for a given reason or for no reason at all, so long as civil rights laws are not violated.


“Grand Victoria may not simply take refuge in the common law right of exclusion, inasmuch as it is the public policy of this State that gambling is subject to ‘strict regulation,’and the [Indiana Casino Control] Commission has been given exclusive authority to set rules of riverboat casino games,” the court explained. “The Commission did not enact a prohibition against card counting and Grand Victoria did not seek a prohibition by rule amendment.”


The court concluded that “Donovan was ejected solely for his mental conduct in the course of casino blackjack, a Commission-regulated game, and thus his ejection is not protected by the common law.” (Donovan v. Grand Victoria Casino & Resort)


So Donovan gets his court order that Grand Victoria may not exclude him from blackjack because he counts cards.


And we’re likely to see more consumer-friendly decisions as more and more states legalize casino gambling.


For years, most gaming law was developed in Nevada where legislators, regulators and judges are understandably sensitive to protecting a core state industry.


Where casino gambling is less of an institution, the bet here is that courts will be more straightforward in applying consumer and tort law to cases brought by aggrieved gamblers.


— Pat Murphy



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