You just have to wonder. I mean, it is 2009, nearly 2010, and by now everybody has gotten the memo about racial slurs being a no-no, right? 

Apparently, not if you’re a juror from Spokane, Washington.

 

That’s right. Earlier this month a state appeals court found that racially insensitive remarks by jurors justified overturning a defense verdict rendered in a medical malpractice case.

 

The decision is interesting in two respects.

 

First, the racial slurs were not directed against a party in the case, but rather the plaintiff’s Japanese-American lawyer.

 

Moreover, the court seemed to say that that the fact that the remarks were made at all was sufficient to show that the verdict was tainted, even though there was no evidence that racial animus was actually a factor in the jury’s deliberations.

 

Remember Pearl Harbor!

 

Darlene Turner lost part of her left foot. She claims that she’d still be stomping around with a whole left foot if it hadn’t been for the negligence of Dr. Nathan Stime.

 

According to Darlene, Dr. Stime’s failure to timely diagnose her pneumonia led her to develop sepsis. That condition resulted in Darlene suffering through a 45-day stint in the hospital — much of it in a coma — and having her left forefoot amputated.

 

Darlene hired Mark Douglas Kamitomo to represent her in the medical malpractice case.

 

Kamitomo is of Japanese ancestry and happened to be the only non-Caucasian involved in the trial.

 

Kamitomo lined up a couple of experts who testified that Dr. Stime violated the standard of care by failing to obtain an appropriate medical history on Darlene, and by failing to give her an appropriate physical. Kamitomo’s theory of the case was that taking these steps would have led to a timely diagnosis of pneumonia and the prevention of sepsis.

 

Unfortunately for Darlene, the jury didn’t see it that way and rendered a verdict for Dr. Stime.

 

That may well have been the end of the matter until Kamitomo heard from two jurors who stated that during deliberations several other jurors had referred to him as “Mr. Kamikaze,” “Mr. Miyashi,” “Mr. Miyagi,” or “Mr. Havacoma.”

 

One juror also allegedly stated that the defense verdict was “almost appropriate” given that it was delivered on December 7, the anniversary of Japan’s 1941 attack on Pearl Harbor.

 

Setting aside the verdict

 

Getting a verdict set aside on the ground of juror misconduct is a particularly tough hill to climb. And in this case Kamitomo had two hurdles to overcome in getting the defense verdict set aside on the ground of racial prejudice.

 

There was the issue that the jurors’ racially insensitive comments were directed at him rather than at his client.

 

This aspect of the case garnered the attention of the Washington ACLU and the state chapters of the Women Lawyers, Korean-American, Latino-American, Vietnamese-American, Middle Eastern, Asian and Northwest Indian bar associations.

 

Each of these groups filed amicus briefs in support of the proposition that racial animus expressed by jurors against a trial attorney may be sufficient evidence to conclude that the verdict was the result of juror misconduct.

 

The other problem facing Kamitomo was that there was no direct evidence that racial animus was actually a factor in the jury’s deliberations.

 

In fact, eight jurors submitted affidavits stating that they never referred to Kamitomo in racially derogatory terms, that they had not heard or witnessed anything suggesting bias, and that they had not heard or witnessed anything causing them to believe that any juror’s vote was not based solely on the evidence. 

 

But both the trial judge and the court of appeals seemed to take the stance that the mere fact that racially insensitive comments were made against Darlene’s attorney was sufficient to infer that improper conduct affected the verdict and denied Darlene a fair trial.

 

The court of appeals was struck by the fact that one or more jurors referred to Kamitomo as “Mr. Havacoma.”

 

The court reasoned that “[t]his name demonstrates that jurors associated Mr. Kamitomo closely with his client, Ms. Turner, who was in a coma for many of the 45 days of her hospitalization.”

 

The Pearl Harbor reference also did not go over well with the court.

 

“[T]he Pearl Harbor comment related to the jury verdict demonstrates that the defense verdict … was closely associated with Mr. Kamitomo,” the court said.

 

Finally, in concluding that there was a reasonable doubt as to whether the words directed at Kamitomo affected the verdict, the court said that “the very reasons for the attorney-client relationship require a close association between the lawyer and his or her client.” (Turner v. Stime)

 

Political correctness run amok?

 

What strikes me about this decision is that the court of appeals makes no mention of the strength of Dr. Stime’s case.

 

In the absence of direct evidence that the verdict was the result of racial animus, surely the strength of the defendant’s case should have been one factor in deciding whether Darlene was the victim of juror misconduct.

 

Then there’s the nature of the comments themselves. On the scale of racism, this doesn’t seem to be Ku Klux Klan kind of stuff.

 

Instead, we’re talking of the sort of bigotry that we might hear from a parent or grandparent.

 

Sure, they might make us cringe every once in a while with their insensitivity, but we’d still trust them to make the right decision when faced with a serious matter.

 

So that brings us to the Pandora’s Box argument made by Dr. Stime in his attempt to have the jury’s verdict reinstated in this case.

 

Might the Washington Court of Appeals’ decision encourage litigants to debrief jurors for flippant and insensitive remarks that can be recast as ethnic slurs that would justify overturning a verdict?

 

In my mind it will so long as courts don’t also demand some concrete showing that racial animus actually infected the deliberative process.  

 

— Pat Murphy

patrick.murphy@lawyersusaonline.com

 

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You have to feel for school administrators these days.

The Internet has made it infinitely harder for them to keep the peace within the student population, and there’s no clear road map as to how proactive they can be in policing student speech without tripping over the First Amendment.

 

The problem of just how carefully school officials must tread was illustrated in a series of landmark decisions issued recently in a federal lawsuit in California. The case pitted the Beverly Hills Unified School District against a high school student who was suspended after she posted a video on YouTube that mercilessly ridiculed a classmate.

 

In one of the first cases addressing student “cyberbullying,” U.S. District Judge Stephen Wilson rejected a “geographic” approach in limiting the authority of school officials, instead concluding that a school’s ability to regulate such off-campus speech is measured by the threat that it poses in disrupting school activities.

 

Further, in addressing due process concerns, Judge Wilson tells school officials that they may well need to reformulate their student conduct policies in order to make it clear to students under what circumstances off-campus speech may result in discipline.

 

YouTube slam

 

A group of kids monkeying around, that’s how this story starts.

 

J.C. was a student at Beverly Vista High School. After school on the afternoon of Tuesday, May 27, 2008, J.C. and several friends gathered at a local restaurant. Goofing around, J.C. recorded on a personal device a four-minute and thirty-six second video of her friends talking about a classmate of theirs, C.C.

 

On the video, the kids say that C.C. is “spoiled,” a “slut” and other less flattering things.

 

Naturally, J.C. thinks the video is the most hilarious thing ever, so she goes home and posts it on YouTube. That night, the video received about 90 “hits.”

 

Of course, C.C. finds out about the video and, being 13 years old, is devastated. C.C. and her mom go to school the next day and talk to a counselor. This launches an investigation by school officials, who order J.C. to delete the video from YouTube and her home computer.

 

This probably should have been the end of the matter, but unable to leave well enough alone school administrators contact the district’s attorneys, who gave the go ahead to suspend J.C. for two days.

 

Bad move.

 

Quicker than you can say “Section 1983,” J.C. is in federal court suing the school district and individual school officials for violating her First Amendment rights.

 

Freedom of speech

 

In her lawsuit, J.C. argued that the school district violated her free speech rights by attempting to regulate her off-campus speech.

 

Given that the legal landscape concerning student cyberbullying is largely uncharted, J.C. proposed that the First Amendment places a “geographic” limitation on what public school officials can do, limiting their authority to regulating conduct that occurs on campus.

 

But Judge Wilson rejected the notion that school administrators are powerless in the face of off-campus Internet speech.

 

In a ruling issued last month, he decided that these cases are governed by the U.S. Supreme Court’s decision in Tinker v. DesMoines Independent Community School District.

 

In the 1969 case, the Court ruled that a school may regulate a student’s speech or expression if such speech causes or is reasonably likely to cause a “material and substantial” disruption to school activities or to the work of the school.

 

Distilling the caselaw since Tinker, Judge Wilson recognized these parameters:

 

First, the majority of courts will apply Tinker where speech originating off campus is brought to school or to the attention of school authorities, whether by the author himself or some other means. The end result established by these cases is that any speech, regardless of its geographic origin, which causes or is foreseeably likely to cause a substantial disruption of school activities can be regulated by the school. Second, some courts will apply the Supreme Court’s student speech precedents, including Tinker, only where there is a sufficient nexus between the off-campus speech and the school. It is unclear, however, when such a nexus exists. The Second Circuit has held that a sufficient nexus exists where it is “reasonably foreseeable” that the speech would reach campus. The mere fact that the speech was brought on campus may or may not be sufficient. Third, in unique cases where the speaker took specific efforts to keep the speech off campus, or clearly did not intend the speech to reach campus and publicized it in such a manner that it was unlikely to do so, the student speech precedents likely should not apply. In these latter scenarios, school officials have no authority, beyond the general principles governing speech in a public arena, to regulate such speech.

 

In this case, Judge Wilson concluded that school officials violated the First Amendment because “no reasonable jury could conclude that J.C.’s YouTube video caused a substantial disruption to school activities, or that there was a reasonably foreseeable risk of substantial disruption as a result of the YouTube video.”

 

Specifically, the court found that any actual disruption to school activities was minimal and largely the result of the school’s response upon learning of the existence of the YouTube video.

 

What about poor C.C.?

 

First, the judge found that there was no reason for school officials to believe that C.C.’s safety was in jeopardy or that any student would try to harm C.C. as a result of the video.

 

While he recognized that C.C.’s her feelings were hurt and that she understandably did not want to go to class after being embarrassed, the judge concluded that such concerns alone do not justify school discipline.

 

“The Court does not take issue with Defendants’ argument that young students often say hurtful things to each other, and that students with limited maturity may have emotional conflicts over even minor comments,” Judge Wilson wrote. “However, to allow the School to cast this wide a net and suspend a student simply because another student takes offense to their speech, without any evidence that such speech caused a substantial disruption of the school’s activities, runs afoul of Tinker.”

 

So the school district is liable under §1983 for violating J.C.’s free speech, and the judge has directed that she submit a proposed judgment for his consideration.

 

As for the individual school administrators named in the suit, the court found they were immune under §1983 because the law was not clearly established at the time of their transgressions. (J.C. v. Beverly Hills)

 

Review those student conduct policies

 

Last week, Judge Wilson issued a second decision in the case, concluding that the school district also violated J.C.’s due process rights.

 

The judge found that the school’s policies were unconstitutionally vague because they failed to place students on notice that off-campus speech can be regulated.

 

“[T]he Court finds that the School’s disciplinary policies are unconstitutionally vague because such policies appear, on their face, to limit the School’s authority to discipline students for activities occurring at school, while the students are on the way to or from school, or at a school-sponsored event,” the judge wrote. “Although the School can, within the bounds of the Constitution, regulate off-campus speech that causes a material and substantial disruption to school activities under Tinker, it must put students on notice of such authority so that they can modify their conduct in conformity with the school rules.”

 

This ruling should send school lawyers scurrying to review their client’s student policies. And it probably would be a good idea to discuss with school officials in advance just how proactive they intend to be in policing student cyberbullies.   

 

— Pat Murphy

patrick.murphy@lawyersusaonline.com

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This stinks. A lawyer labors long and hard to win his client’s case and, just as pay day is set to arrive, a long-forgotten judgment creditor swoops in and takes his client’s settlement — along with his 40 percent contingent fee.

How appropriate that this tale of woe begins with a scheme to make a tourist attraction out of a played-out gold mine in Alaska.

 

Lorimer and Pamela McLaughlin had a dream: create the perfect Alaskan tourist destination.

 

Take a historic gold camp to attract the guys, and build an “Aurorium” at the site so that the gals can ooh and ah over the Northern Lights. You could just imagine the money rolling in.

 

To make that dream a reality, the McLaughlins first purchased a historic gold camp outside Fairbanks in 1982. Then they got foreign investor Masayoshi Okumura to buy in to their dream.

 

But then reality struck like a club over the noggin.

 

The McLaughlins discovered that in 1990 they had lost title to the gold camp via foreclosure. This disaster was the result of the malpractice of the McLaughlins’ attorney, Arthur Robson.

 

Robson compounded the McLaughlins’ troubles by proceeding to lose a fraud lawsuit brought by Okumura.

 

The $1 million judgment obtained by Okumura in 1993 forced the McLaughlins into bankruptcy.

 

Gluttons for punishment, the McLaughlins kept Robson to represent them in the bankruptcy case. Predictably, the McLaughlins’ debt to Okumura was not discharged in bankruptcy because it was deemed to have resulted from fraud.

 

Coming to their senses, the McLaughlins eventually sued Robson for malpractice, subject to a court-approved agreement that any recovery would be split evenly between them and their bankruptcy estate.

 

Attorney Michael MacDonald represented the McLaughlins in the malpractice suit under a 40 percent contingency fee agreement. MacDonald did his job, obtaining a $3.6 million judgment against Robson in 2001.

 

Unfortunately, by this time Robson’s liability insurance had been exhausted and the only amount that could be recovered was $160,000 from a law firm and lawyers associated with Robson.

 

Now, MacDonald wasn’t looking at a big payday because the $160,000 was subject to a contingent fee owed to the bankruptcy estate’s attorney, but he thought he would at least get something for representing the McLaughlins.

 

That was until 2006 when Okumura got wind of the settlement and resurrected his 1993 fraud judgment  by obtaining a new writ of execution against the McLaughlins.

 

MacDonald filed a motion requesting that 40 percent of the McLaughlins’ $44,000 share of the Robson malpractice settlement released directly to him as attorney’s fees rather than being subject to execution by Okumura.

 

But the Alaska Supreme Court last week decided that MacDonald was out of luck.

 

First, the court concluded that Okumura’s lengthy delay in executing on his 1993 fraud judgment was justified because the McLaughlins had moved out of state and Okumura had lost track of their whereabouts.

 

Second, the court questioned the propriety of allowing MacDonald to collect his contingency fee after a contingency fee had been taken by the attorney representing the bankruptcy estate in the Robson malpractice case.

 

Most importantly, the court concluded that MacDonald had failed to perfect his attorney lien under state law.

 

“The only ‘attorney’s lien’ in the record is inexplicably captioned with Okumura’s original 1992 lawsuit against the McLaughlins rather than the McLaughlins’ lawsuit against Robson, and it was apparently recorded rather than filed with the clerk of court,” the court explained. “MacDonald had the burden of showing that he had a valid, properly perfected attorney’s lien that would cover the [malpractice] settlement proceeds. He did not do so.” (McLaughlin v. Okumura) 

 

— Pat Murphy

patrick.murphy@lawyersusaonline.com

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A recent win by Home Depot in a same-sex harassment case raises the question of whether the result would have been the same had similar allegations been asserted against a male supervisor by a female employee.

What is peculiar here is that the two male plaintiffs suing Home Depot couldn’t get their case before a jury — even though they alleged that a male supervisor subjected them to repeated inappropriate touching and explicit sexual propositioning.

 

That’s usually good enough to get past summary judgment in the run-of-the mill sexual harassment lawsuit.

 

But the 11th Circuit in a 2-1 decision concluded that the Home Depot plaintiffs couldn’t establish that the harassment was sufficiently severe or pervasive. (Corbitt v. Home Depot)

 

Same-sex harassment

 

The case involved two store managers. David Corbitt ran a Home Depot in Mobile, Alabama. Alex Raya’s store was in Pensacola, Florida.

 

Leonard Cavaluzzi was the human resources manager for Home Depot for the region that included Corbitt’s and Raya’s stores.

 

According to Corbitt and Raya, Cavaluzzi made repeated telephone calls of a sexual nature to them, two to twelve times a week from March to November 2005.

 

For example, Corbitt related a conversation in which Cavaluzzi allegedly stated that Corbitt was not Cavaluzzi’s “usual type,” but that he “could not stop thinking about” Corbitt, and that Cavaluzzi knew Corbitt was not gay, but Cavaluzzi could show Corbitt how, and he would “like it.” Cavaluzzi allegedly also urged Corbitt to visit gay websites.

 

Raya claimed that he received similar phone calls from Cavaluzzi. According to Raya, Cavaluzzi repeatedly asked Raya to meet him for drinks, told him that he liked Raya’s green eyes and said things such as “you’re the Italian heifer that I like.”

 

Both store managers complained that they were also the victims of inappropriate touching. These alleged incidents occurred at Home Depot stores and at corporate conferences held at hotels.

 

Corbitt and Raya alleged that Cavaluzzi routinely attempted to hug them, massage their necks and shoulders, and play with their hair.

 

Raya said that one time Cavaluzzi put his hand on his thigh, and during a hug pressed his whole body against Raya, such that Cavaluzzi’s body was touching his “privates.”

 

Corbitt testified that once, while working alone, Cavaluzzi “snuck up” behind him, put one of his hands on Corbitt’s shoulder, and rubbed Corbitt’s stomach with the other.

 

Both Corbitt and Raya registered complaints in accordance with Home Depot’s sexual harassment policy, and both were fired within a month of the filing of their formal complaints.

 

Home Depot’s stated reasons for the firings included the store managers’ alleged improper authorization of mark downs and use of company cellphones for personal use.

 

But the Corbitt and Raya sued, claiming hostile work environment harassment and retaliation under Title VII.

 

Severe or pervasive harassment?

 

A U.S. District Court in Alabama concluded that Corbitt and Raya had not demonstrated that the alleged harassment was sufficiently severe, and granted Home Depot a summary judgment on that basis.

 

The 11th Circuit upheld that ruling in an opinion that was surprisingly dismissive of the store managers’ allegations.

 

The court characterized much of Cavaluzzi’s conduct as innocent flirtation.

 

“Flirtation is part of ordinary socializing in the workplace and should not be mistaken for discriminatory conditions of employment,” the court observed.

 

“In the instant case, some of the comments that bothered the [Corbitt and Raya] were merely complimentary, and some were clearly flirtatious,” the court said. “We assume arguendo that these comments are of a sexual nature and consider them in examining whether the conduct was severe or pervasive. Nevertheless, because many would consider the comments innocent compliments, they do not weigh heavily in favor of finding that Cavaluzzi’s conduct, as a whole, constituted sexual harassment. Although the [Corbitt and Raya] may be subjectively more uncomfortable because a presumably gay man made the flirtatious comments, this does not factor into the objective component of the analysis.”

 

As far as the allegations of inappropriate touching, the court seemed to highlight the Cavaluzzi’s more innocuous conduct, while generalizing and downplaying the more outrageous accusations.

 

For instance, the court said that “[j]ust as many of the comments appear inoffensive to a reasonable person, so too would some of Cavaluzzi’s alleged touchings of Raya. Raya stated that Cavaluzzi put his arm around him like Cavaluzzi was his ‘best friend in the world’—if a heterosexual man had done this, Raya would likely not have thought anything of it.”

 

On the other hand, the court complained that Corbitt and Raya had “exaggerated” the frequency of inappropriate touching, and was unimpressed by the severity of Cavaluzzi’s alleged physical contact with the plaintiffs.

 

“The [plaintiffs] claim that the touchings were ‘substantial,’ but both Corbitt and Raya admitted that most of the touchings were quite brief,” the court said.

 

Context ignored

 

What strikes me about this case is how the judges in the majority seemed to take pains to examine the allegations in isolation, ignoring the larger context of Cavaluzzi’s alleged misbehavior.

 

Here, we have allegations of inappropriate touching combined with explicit — rather than suggestive — sexual propositioning. That mix is usually a winner for hostile environment plaintiffs, at least at the summary judgment stage.

 

This point was driven home by Judge Patricia C. Fawsett, who filed a dissent in the case. (Fawcett is a U.S. District Court judge for the Middle District of Florida and was a member of the 11th Circuit panel in this case by designation.)

 

“The record in the instant case reveals a multitude of inappropriate, sexually-based comments made by Cavaluzzi to the claimants in this case,” Fawsett wrote. “Select comments, pulled from their context and deemed facially inoffensive by the majority, demonstrate an impermissible sex bias when viewed in context.”

 

Fawsett noted that the “majority glosses over the fact that at the same time Cavaluzzi put his arm around Raya’s shoulders, he put his hand on Raya’s thigh under a table where they were seated and where others who were present ostensibly could not see. Both Appellants reasonably interpreted Cavaluzzi’s conduct toward them as solicitations for sex and feared being fired if they complained. …

 

“The majority also glosses over the number of touchings and the full body hug given by Cavaluzzi to Raya in which Cavaluzzi pushed himself into Raya’s ‘privates.’ Moreover, Cavaluzzi’s conduct towards Raya caused other store managers in the region to start calling Raya ‘Lenny’s Bitch,’ which suggests that the conduct was in fact sexual in nature to other observers. In any event, a reasonable jury could reach this conclusion.”

 

Fawsett also took issue with the majority’s conclusion that most of Cavaluzzi’s comments were mere flirtations.

 

“Certainly there is a difference between a coworker cheerfully stating, ‘Hey, I really like your pants,’ and a coworker stating, ‘I really like how you look in those pants,’ coupled with several more overtly sexual comments,” Fawsett wrote.

 

Yep, I agree with Judge Fawsett that the majority got this one wrong.

 

It’s hard to imagine that a female plaintiff making similar allegations against a male superior wouldn’t have gotten her day in court. Title VII was crafted to prevent precisely the sort of predatory workplace behavior allegedly experienced in this case by Corbitt and Raya.

 

But the plaintiffs can take solace in the fact that the 11th Circuit did reinstate their retaliation claim against Home Depot.    

 

— Pat Murphy

patrick.murphy@lawyersusaonline.com

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