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Sea tales: Fisherman can seek damages for near miss


You figure that those who make their living on the oceans are a pretty hearty lot.

So it comes as something of a surprise that one California fisherman would claim he suffered emotional distress because a wayward freighter passed too close for comfort one fogbound afternoon.

What comes as even more of a surprise is that yesterday a federal court of appeals agreed that the fisherman could proceed on his claim for damages.

And at least one dissenting judge thinks that yesterday’s decision broadly expands the availability of emotional distress damages for all types of plaintiffs, including the ordinary driver along the highway.

Tragedy off Point Reyes

Point Reyes is just northwest of San Francisco on the Pacific Coast. The waters off Point Reyes are notorious for heavy fog, particularly during the summer months.

And dense fog is what the 32-foot fishing vessel Marja found herself in on the afternoon of July 13, 2007.

The Marja is owned and operated by Brian Stacey. That afternoon, Stacey had the Marja among a number of other fishing vessels trolling for salmon in the fog.

About 5:00, Stacey became alarmed because his radar picked up a freighter about a mile away on a collision course with his Marja.

The freighter turned out to be the 291-foot, 4,000-ton Eva Danielsen, which had just left San Francisco bound for Portland, Oregon.

Stacy managed to radio Eva Danielsen of the danger, and the freighter avoided the Marja. But it was a close call. So close that Stacey could hear the rumble of the Eva Danielsen’s engines and feel her wake.

Stacey was safe, but not so Captain Paul Alan Wade of the fishing vessel Buona Madre.

After passing the Marja, the Eva Danielsen ploughed into and sank the Buona Madre, killing Captain Wade.


Emotionally distressed fisherman

Now it’s easy to understand why the family of Captain Wade would be suing the owners of the Eva Danielsen for wrongful death.

But why would Stacy head to court? After all, you’d think he’d feel relief at having narrowly avoided disaster himself.

And apparently the fog was so dense that day that he never actually saw the Eva Danielsen approach dangerously close to his Marja, nor its collision with the Buona Madre.

In fact, Stacy didn’t actually learn about the fate of Captain Wade until days later.

But Stacy claims that he did indeed suffer emotional distress and off to federal court he went.

Stacy sued the owners and operators of the Eva Danielsen for the negligent infliction of emotional distress. He alleged that the freighter was going too fast considering the fog, and without a proper lookout, proper radar equipment, or proper signals in violation of the International Navigation Rules Act.

According to Stacy, the near miss so impacted him emotionally that he could not work and needed psychiatric help.

U.S. District Judge Claudia Wilken was understandably skeptical. And she read long-standing 9th Circuit precedent as applying “zone of danger” test in maritime cases.

Under that test – at least as Judge Wilken read the precedent – a maritime negligent infliction of emotional distress claim must be premised on the plaintiff’s having experienced a “psychic injury” by “witnessing another being seriously injured or killed,” while simultaneously being threatened with physical injury to himself.

So Judge Wilken must have been pretty confident in dismissing Stacy’s lawsuit given that he essentially hadn’t witnessed anything.

Boy, was she in for a surprise!

Yesterday, the 9th Circuit concluded that Judge Wilken had misread the precedent and reversed her dismissal of Stacy’s claim.

The court decided that the case was controlled by the U.S. Supreme Court’s decision in Consolidated Rail Corp. v. Gottshall.

The 9th Circuit explained that in Gottshall, the Supreme Court held that the zone of danger test “allowed recovery for “those plaintiffs who sustain a physical impact as a result of a defendant’s negligent conduct, or who are placed in immediate risk of physical harm by that conduct.'”

The court noted that the Supreme Court in Gottshall quoted with approval a law review article’s explanation that those within the zone of danger of physical impact can recover for fright.

That saved the day for Stacy.

“Stacy alleged that he was within the zone of danger and that he suffered emotional distress from the fright caused by the negligent action of the defendants,” the 9th Circuit said. “Nothing more was required to assert a cause of action cognizable under maritime law.” (Stacy v. Rederiet Otto Danielsen)


Judge Hall dissents

Circuit Judge Cynthia Holcomb Hall thought the majority was ignoring binding 9th Circuit precedent, precedent the judge argued was consistent with Gottshall.

“Based upon a more careful reading of Gottshall, however, I believe it is reasonable to conclude that the [9th Circuit zone of danger] test is consistent with Gottshall, at least in cases in which the plaintiff alleges a ‘stand-alone’ claim for [negligent infliction of emotional distress] – such as the one Stacy alleges – based on a threat of  ‘immediate traumatic harm’ which does not result in any actual physical impact or injury.”

Standing by the “witnessed harm” requirement, Judge Hall said that Stacy simply could not state a claim.

The judge wrote that “Stacy has not alleged that he suffered fright or shock or severe emotional distress as a result of any ‘immediate traumatic harm’ caused or threatened by his ‘near miss’ with the Eva Danielsen while he was in the ‘zone of danger’ created by appellees’ negligent conduct-such as might have resulted if he had witnessed Wade’s death. …

“To the contrary, Stacy acknowledges that after he notified the Coast Guard and his fellow fishermen that he and the Marja were safe and sound, he returned to business as usual, and resumed fishing.”

This last observation by the judge shows just how far Stacy still has to go in proving his claim. It’s going to be tough to convince a jury that he suffered severe emotional distress when after the close call with the Eva Danielsen he went back to work as though nothing had happened.

And Judge Hall fretted about how the majority’s apparent expansion of the zone of danger test might apply to the more mundane traffic accident, hypothesizing about a reckless pickup truck driver who nearly misses dozens of other highway drivers during a long trip that ends up in a fiery crash.

“Under the majority’s reading of the Gottshall ‘zone of danger’ test, … every one of the hundreds, perhaps thousands, of motorists and their passengers who were ‘frightened’ by ‘near misses’ with the pick-up truck as it sped erratically past them on that 200-mile stretch of I-5, or who were alarmed upon learning of the fiery wreck from news reports the next day, could also state a claim for [negligent infliction of emotional distress]  – whether or not they witnessed the accident and, indeed, possibly even if there was no collision at all,” Hall wrote. 

– Pat Murphy


Just shut up! Lawyers’ mouths get them in trouble



Here we have a tale of two lawyers.

Lawyer Number One has a $1 million auto accident award slip through his fingers because he derided the defendant in the case and his experts.

Lawyer Number Two loses her job as a top city attorney because she made the mistake of describing her professional stomping grounds as a “ghetto court.”

The lesson?

When that little bell in your head starts clanging away, warning you that you’re about to go overboard in your comments, listen to it and zip those lips.


‘Paid agreers’ and ‘spin doctors’

Terry Bottinelli has one of those tough back injury cases, which perhaps helps explain why the New Jersey lawyer felt the need to put a little extra mustard on his fastball when he argued the case at trial.

Bottinelli’s client, Barbara Szczecina, was involved in a three-car accident in 2004.

The 56-year-old Szczecina sued one of the other drivers – Joseph Martino – for her injuries.

Establishing liability wasn’t that big of a hurdle for Bottinelli. An arbitrator found Martino 100 percent liable and the case proceeded to trial on damages.

Here is where Bottinelli had a problem proving Szczecina’s case.

While Szczecina claimed that she suffered back pain from the accident, there was no documented complaint by her about back pain until many months after the accident.

Not surprisingly, Martino and his lawyers argued that Szczecina’s back pain was neither permanent nor related to the accident, so this set up a battle of experts.

Knowing this, Bottinelli took numerous pot shots at defense experts during both opening and closing argument. Bottinelli liked to characterize the defense’s experts as “hired guns,” “paid agreers” and “spin doctors.”

On top of this, the lawyer derided Martino for not stepping up and taking responsibility for the accident, inviting the jurors to set things right by “sending a message” with their verdict.

Well, the jury did indeed send a message, overlooking the sketchiness of Szczecina’s back injury and awarding her $1 million.

Martino and his lawyers wanted a new trial, feeling that Bottinelli had gone too far in his arguments.

Perhaps in large part because defense counsel had failed to contemporaneously object to Bottinelli’s disparaging comments, the trial judge let the jury’s verdict stand.

But Friday the New Jersey Appellate Division found that Bottinelli had gone over the line and up in smoke went the million-dollar verdict.

“Despite the failure to object, we cannot simply overlook the conduct of plaintiff’s counsel, who unwarrantedly and inappropriately accused the entire defense of spinning the evidence,” the court said. “The conduct was ‘clearly capable of producing an unjust result.'”

The court explained that “the egregious nature of counsel’s conduct, occurring in a case in which there was a real question as to whether plaintiff’s back injuries were caused by the accident and in which treatment was relatively conservative, raises, at the very least, a reasonable doubt as to whether the jury’s million-dollar verdict resulted from the misconduct rather than from the merits of the case.”

In overturning Szczecina verdict, the court instructed New Jersey’s trial judges to be more vigilant in policing lawyers and their comments to the jury.

“[W]hen counsel engages in patently inappropriate conduct, such as derisive statements and other invectives aimed at opposing parties, counsel or witnesses, or when there is an inappropriate request to ‘send a message,’ the trial judge should act before the situation reaches the point at which an unjust result is likely or even possible,” the court said.

And then there was the inevitable shot across the bow to discourage those members of the bar most prone to hyperbole.

“Attorneys who engage in this type of conduct risk losing a favorable jury verdict, even if there is no objection,” the court said. (Szczecina v. PV Holding Corp.)


‘Ghetto court’

You’d think that a lawyer who managed to rise to a top position for a big city like Detroit would have a little bit more political savvy.

I mean, Kathleen Leavey must have demonstrated uncommon discretion in order to become head of Detroit’s legal department, right?

Yes indeed, Leavey had become Corporation Counsel for the city of Detroit.

It was a plum job for a public sector lawyer, even if she was tagged with the “interim” label when Mayor Kenneth Cockrell appointed her.

But things unraveled in the blink of an eye for Leavey, who is white.

It all started in December 2008. That’s when Leavey learned that Thomas Sciotti had won a $424,000 reverse discrimination judgment against Michigan’s 36th District Court.

The 36th District is one of the nation’s largest and busiest urban courts, located smack dab in the heart of Detroit.

Leavey was concerned about who would pay for the judgment. Anxious to protect the city’s bloated budget, Leavey thought the Sciotti judgment should be paid out of the court’s budget.

Chief Judge Marilyn Atkins didn’t like the sound of that one bit, so she directed the court’s senior attorney, Constance Allen, to contact Leavey and figure out something else.

In a Jan. 14, 2009, conference call that included Leavey and Allen, things got a little heated. So much so that Leavey allegedly let it be known that she didn’t have a high opinion of how the 36th District Court was being operated.

Instead of Leavey reminding herself that some things are better left unsaid, she allegedly told Allen, “You know, Connie, you know, people don’t have a lot of respect for your court, or they don’t- you know, your court is like a ghetto court. You treat people terrible over there. You know, they wait in lines all day long.”

Quicker than you can say “political suicide,” the word about Leavey’s views on the 36th District had reached the ears of Chief Judge Atkins, who is African-American.

The word about the “ghetto court” comment then rapidly circulated through Detroit’s chambers of power, so quickly in fact that the next day a coalition of city administrators, council members and judges forced Leavey to resign.

Leavey didn’t like being shoved back into her former civil service job with the city one bit, so she sued for First Amendment retaliation.

But Thursday U.S. District Court Senior Judge Arthur Tarnow tossed Leavey’s lawsuit.

The judge concluded that, when Leavey voiced her opinion about the dysfunctional operation of the 36th District Court, she was acting within her official duties and not engaged in protected activity under the First Amendment.

Judge Tarnow wrote that Leavey “cannot now reasonably argue that this conference call and the speech in it were not made pursuant to her official duties. This was not a personal phone call but rather was a business call.

“Even if the conversation regarding the Sciotti judgment ultimately deteriorated and segued into negative comments, including the ‘ghetto court’ statement, being made about the 36th District Court, that does not change the fact that this was an official phone call and that the call and its subject matter were pursuant to Plaintiff’s official duties as Interim Corporation Counsel.” (Leavey v. Detroit)

So counsel, take these cautionary tales to heart.

When you’re in the fray and the adrenaline is running, rein in those remarks that in your gut you know will only irritate annoy and inflame, making the task at hand that much harder.

– Pat Murphy


Reaction time: Seconds cost subway rider leg, $2.3M



If a New York City subway operator had had a few more seconds’ warning, perhaps Dustin Dibble would still be stomping around on two legs.

And because the train operator didn’t have those few extra seconds, a panel of state judges decided Monday that Dibble doesn’t get the $2.3 million that a jury awarded him.

Of course, Dibble has himself to blame for his misfortune.

If the 22-year-old hadn’t been intoxicated at 1:30 am on April 23, 2006, he wouldn’t have found himself in the path of the N train at Union Square Station.

But intoxicated he was – The New York Post reports he had a blood alcohol level twice the legal limit – and there he was, on the tracks with the N train bearing down.

Dibble doesn’t remember how he got on the tracks in the first place.

How Dibble found himself on the tracks was beside the point for train operator Michael Moore. In seconds he was to have an emergency to deal with.

Moore testified that, as he brought the N train into the station, he spied what looked like a pile of garbage almost under the platform.

Train operators for the New York City Transit Authority often see garbage on the tracks, so Moore wasn’t alarmed at first.

But then Moore saw the pile of garbage move when he was about one car length away, so he threw the train into emergency stop.

Moore estimated that four seconds elapsed between the moment when he first saw the “debris” and the time he stopped the train.

That wasn’t quick enough for Dibble. The train struck the intoxicated man. Dibble’s injuries resulted in the amputation of the lower half of his right leg.

With typical New York chutzpah, Dibble blamed the transit authority for his injuries and sued for negligence.

Dibble’s theory of liability was that the train operator hadn’t reacted quickly enough in stopping the train.

Nicholas Bellizzi, an expert in subway accident analysis, opined on Dibble’s behalf. The expert contended that, if Moore had put the train into emergency when he first saw the “debris,” the train could have stopped before striking Dibble.

The expert said that an “average” reaction time for train operators in this circumstance is one second. Applying this standard, so said Bellizzi, Moore should have been able to stop the N train in time.

To the outrage of Mayor Michael Bloomberg and millions of his constituents, a jury bought it, awarding Dibble $3.5 million.

The jury did cut New York City some slack, though, attributing 35 percent of the fault to Dibble.

This wasn’t good enough for the city. Why should Dibble receive a penny when his drunkenness obviously placed him in the zone of danger?

As good as this argument appeared on its face, the New York Supreme Court, Appellate Division, took a different tack in overturning Dibble’s $2.3 million pay day.

The court focused instead on the propriety of imposing liability based on a train operator’s reacting within four seconds rather than according to the one-second standard set by Dibble’s expert.

First, the court observed that the time-distance calculations made by both parties in this case were based upon guesstimates of what actually occurred since none of the variables were established conclusively at trial.

Evidence suggested that the train was travelling anywhere between 20 and 25 mph when it entered the station. There was conflicting evidence on just how far away the train was when Moore first saw the debris.

“Moore was the sole witness as to what exactly was visible as the train approached the station; he was also the sole witness as to how far away he was when he saw what he described as the debris moving,” the court noted.

So the court said it came down to establishing Moore’s failure to exercise reasonable care by “arbitrarily” imposing upon the train operator a purported average reaction time of one second.

This the jury could not do.

The court explained that “in determining that the defendant’s train operator failed to exercise reasonable care because he could have stopped, the jury improperly equated negligence with possession of a motor skill that is essentially a reflex action.

“Moreover, in this case, the motor skill that determines the reaction time in any individual, and which is measured in seconds and fractions of a second, was assumed to be the purported average of just one second with no variability for identification, analysis and decision.”

So whatever seconds that Moore had to stop the N train weren’t enough to conclude that a standard of care had been breached.

“We find that a reaction time that is seconds or fractions of a second longer than the purported average cannot, as a matter of law, constitute the difference between reasonable and unreasonable conduct, or proof of negligence,” the court said. (Dibble v. New York City Transit Authority)

– Pat Murphy


Stupid juror tricks: MySpace ‘friend’ wrecks trial

While some people avoid jury duty like the plague, others seem to equate getting seated on a jury to grabbing a part on a reality TV show.

They’ll do anything to make the cut. That includes failing to mention that they’re a MySpace friend of that poor wretch who faces prison time if convicted.

Lawyers and judges are having some rocky moments trying to get a handle on juror Internet use.

And it doesn’t get much rockier than when a juror/MySpace friend named Amber manages to upend a corruption trial of a county deputy.

It was the winter of 2008 and Amber Hyre was on course for her fifteen minutes of fame.

Braxton County, West Virginia, was all abuzz.

One of the county’s finest, Deputy Sheriff Christopher Shane Dellinger, was going to trial on charges that he falsified accounts regarding his management of state crime prevention grants.

Amber had been called for jury duty and she didn’t want to miss out on the biggest event in the county since 1772 when frontiersmen massacred Captain Bull and his band of friendly Delaware Indians.

All Amber needed to do was get through voir dire. And she did! Yes!!!

Amber was one of twelve jurors to convict Deputy Dellinger on three counts of falsifying accounts and one count of obtaining money by fraudulent pretenses.

Now, Amber could bask in the afterglow, spinning yarns to her friends about her undoubtedly pivotal role in Braxton County’s version of Twelve Angry Men.

But then a county investigator showed up at her door.

During deliberations it occurred to Dellinger that the Amber who served on the jury determining his fate might be the same Amber who was his “friend” on MySpace.

Dellinger hadn’t recognized her immediately because apparently she didn’t look at all like her picture on MySpace. Funny how often that happens.  

Dellinger’s lawyer reported this suspicion to the trial court immediately following the verdict. The ensuing investigation turned up some unfortunate facts.

One week before Dellinger’s trial, Amber had sent a message to the deputy on MySpace.

Amber wrote: “Hey, I don’t know you very well, but I think you could use some advice! I haven’t been in your shoes for a long time but I can tell ya that God has a plan for you and your life. You might not understand why you are hurting right now but when you look back on it, it will make perfect sense. I know it is hard but just remember that God is perfect and has the most perfect plan for your life. Talk soon!”

After Amber sent the message to Dellinger, the two became MySpace “friends,” which allowed Dellinger to view postings on Amber’s MySpace page and vice versa.

Being MySpace friends is not a crime, but the trial judge in Dellinger’s case was taken aback by the fact that Amber had remained silent during voir dire when he had asked prospective jurors whether they had a business or social relationship with Dellinger.

Amber also referenced her participation in the Dellinger trial in a later post that said “Amber Just got home from Court and getting ready to get James and Head to church! Then back to court in the morning!” She also described her “mood” as “blah.”

As if this weren’t enough, the investigation revealed that Amber had other connections with Dellinger.

They had once lived in the same apartment complex, exchanging casual greetings.

To top it off, it turned out that Amber was related by marriage to the Braxton County Commissioner, who testified in the case, and had a brother-in-law who worked for another witness in the case.

In a hearing on juror misconduct, Amber tried to explain that she failed to speak up about these matters during voir dire because she thought they were trivial.

The trial judge didn’t buy it, but in the end decided not to order a new trial, perhaps because Amber voted to convict Dellinger despite apparently being predisposed in his favor.

But earlier this month, the state’s highest court, the West Virginia Supreme Court of Appeals, decided that Amber had engaged in a “repeated lack of candor” during voir dire that so undermined the process that a new trial was necessary.

“Simply put, [Amber’s] reticence during voir dire foreclosed any challenge for cause or use of a peremptory challenge by [Dellinger]. Nevertheless …the trial court concluded that [Amber] had been a ‘fair and impartial juror’ and ‘that her links to [Dellinger) and witnesses were not such that she was biased or prejudiced against [Dellinger].’

“In past cases, this Court has determined that ‘”[a]ctual bias can be shown either by a juror’s own admission of bias or by proof of specific facts which show the juror has such prejudice or connection with the parties at trial that bias is presumed.” We are particularly mindful that “[t]he process of identifying bias or prejudice, except in clear cases, can be a delicate one where the conclusion is finally drawn from the totality of the responses.”‘

“In the case sub judice, the totality of [Amber’s] responses during the [juror misconduct hearing], coupled with her repeated silence during voir dire, leads this Court to conclude that she had such connection with [Dellinger] and witnesses … that bias must be presumed,” the court said. (West Virginia v. Dellinger)

— Pat Murphy


Heightened standard adopted in Taser cases


Photo by Jason Bain -- http://www.flickr.com/photos/jasonbain/295015196/


Does it matter under the Fourth Amendment whether a police officer blasts you with pepper spray, whacks you with a baton, or zaps you with a Taser?

Yes, each is a non-lethal use of force.

But on Friday one federal court of appeals held that Tasers constitute an “intermediate, significant level of force” that must be justified by a strong government interest that “compels” the employment of such force.


Carl’s bad day

Carl Bryan should have stayed in bed on July 24, 2005.

He was about to have a day that would have done justice to that classic sad sack of the silver screen, “The Dude” in The Big Lebowski.  

Carl, a 21-year-old Californian, had spent the night in Camarillo with his younger brother and some cousins. As that glorious Sunday dawned, the plan was to drive his brother back to his parents’ home in Coronado.

One fly in the ointment, though. It seems his cousin’s girlfriend had accidently taken Carl’s keys to Los Angeles.

In the grand tradition of The Dude, wearing nothing more that the t-shirt and boxer shorts in which he had slept, Carl had his cousins take him to LA to pick up his keys.

That done, Carl returned to Camarillo to get his car and brother.

With the day’s plan back on track, it was time to kick back and enjoy the California sunshine.

Unfortunately, while cruising down to Coronado on the 405 highway, he found himself in the crosshairs of a California Highway Patrolman who issued Carl a speeding ticket.

Carl then did something The Dude would never do – he lost his cool.

Upset at the ticket, Carl began crying. In fact he cried so much he needed to take his t-shirt off to wipe away his tears. The highway patrolman, unsympathetic to the tears, sent Carl on his way.

Carl and his brother continued on their way to Coronado. Crossing the Coronado Bridge at about 7:30 in the morning, Carl was stopped by police a second time.

Officer Brian MacPherson was on the prowl for seatbelt infractions and noticed Carl had failed to buckle up after his earlier encounter with the police.

Getting stopped a second time was the final straw for Carl. In definite un-Dude-like fashion, Carl lost it.

Frustrated by the day’s events, Carl began striking his steering wheel and cussing at himself.

To make matters worse, Carl stepped out of his car and started yelling gibberish and pounding his thighs.

Faced with an apparently unhinged man clad only in boxer shorts and tennis shoes, Officer MacPherson pulled out his trusty X26 Taser and zapped Carl.

Carl dropped like a stone when one of the Taser probes embedded in the side of Carl’s upper left arm. Falling face first, Carl ended up fracturing four teeth.

Now, it is undisputed that at the time Officer MacPherson decided to use the Taser, Carl was standing twenty to twenty-five feet away and not attempting to flee.

But here the stories diverge.

Officer MacPherson claimed that Carl took “one step” toward him.

But Carl claimed he made no threatening moves. And the physical evidence seemed to back up Carl’s story, since it appeared as if he was facing away from the officer when hit by the Taser.

So Carl’s bad day ended with a tasing, a trip to the hospital and arrest.

But Carl would fight back. He sued Officer MacPherson and city of Coronado for excessive force in violation of 42 U.S.C. §1983.


Heightened standard

The district court decided that MacPherson was not entitled to immunity, concluding that a reasonable officer would have known that shooting Carl with the Taser under the circumstances was unlawful.

This raised the issue before the 9th Circuit of whether the constitutional standard for the Taser is the same as other non-lethal force, like pepper spray.

The court decided that the Taser is more intrusive than other non-lethal means, and therefore requires a heightened degree of justification.

The court explained that the X26 Taser in this case uses compressed nitrogen to propel a pair of aluminum darts tipped with stainless steel barbs and connected insulated wires toward the target at a rate of over 160 feet per second.

Upon striking a person, the X26 delivers a 1200 volt electrical charge through the wires and probes and into his muscles.

“The impact is as powerful as it is swift,” the court observed. “The electrical impulse instantly overrides the victim’s central nervous system, paralyzing the muscles throughout the body, rendering the target limp and helpless. The tasered person also experiences an excruciating pain that radiates throughout the body.”

The court reasoned that the physical impact of the Taser is what sets it apart from other non-lethal means of subduing a suspect.

“The physiological effects, the high levels of pain, and foreseeable risk of physical injury lead us to conclude that the X26 and similar devices are a greater intrusion than other non-lethal methods of force we have confronted,” the court said.

That said, the court imposed a heightened constitutional standard for Taser use by law enforcement.

“We recognize the important role controlled electric devices like the Taser X26 can play in law enforcement. The ability to defuse a dangerous situation from a distance can obviate the need for more severe, or even deadly, force and thus can help protect police officers, bystanders, and suspects alike,” the court said.

“We hold only that the X26 and similar devices constitute an intermediate, significant level of force that must be justified by ‘”a strong government interest [that] compels the employment of such force.”‘”


Officer immune

Applying the new standard to this case, the court decided that Carl’s Fourth Amendment rights had been violated.

The court said that “the intermediate level of force employed by Officer MacPherson against [Carl] was excessive in light of the governmental interests at stake. [Carl] never attempted to flee. He was clearly unarmed and was standing, without advancing in any direction, next to his vehicle. Officer MacPherson was standing approximately twenty feet away observing Bryan’s stationary, bizarre tantrum with his X26 drawn and charged. …

“Consequently, the objective facts reveal a tense, but static, situation with Officer MacPherson ready to respond to any developments while awaiting backup. [Carl] was neither a flight risk, a dangerous felon, nor an immediate threat. Therefore, there was simply ‘no immediate need to subdue [Carl]’ before Officer MacPherson’s fellow officers arrived or less-invasive means were attempted.”

Of course, this did not mean that Carl was entitled to damages.

An excessive force plaintiff must show that his constitutional rights were clearly established at the time they were violated, otherwise the officer is immune.

Here, the court acknowledged the unsettled state of the law concerning Taser use and the Fourth Amendment, and let Officer MacPherson off the hook for damages.

The court said that “[b]ased on [recent court] statements regarding the use of Tasers, and the dearth of prior authority, we must conclude that a reasonable officer in Officer MacPherson’s position could have made a reasonable mistake of law regarding the constitutionality of the Taser use in the circumstances Officer MacPherson confronted in July 2005. Accordingly, Officer MacPherson is entitled to qualified immunity.” (Bryan v. MacPherson)

– Pat Murphy


BP beware: Fla. fishermen can get real damages for toxic spills


British Petroleum might as well start air-dropping bales of cash along the Gulf Coast right now.

Any hope that BP may have had in placing a reasonable limit on its damages for the Gulf oil spill is swiftly going up in smoke.

Trial lawyers and environmentalist are sharpening their knives. The White House and Congress circle around BP’s carcass like buzzards.

A dispassionate judiciary? Forgetaboutit!

As if on cue, yesterday the Florida Supreme Court just happened to decide that commercial fisherman can recover their lost profits when their fishing grounds are destroyed by toxic spills.

Undoubtedly, BP finds humor in the coincidence.

The decision involved Howard Curd and several other commercial fishermen who ply the waters of Tampa Bay.

In 2004, a dike containing wastewater from a Mosaic Fertilizer phosphate plant failed, spilling pollutants and hazardous contaminants into Tampa Bay.

According to the fishermen, in the months leading up to the spill local government agencies had warned Mosaic that its containment pond was dangerously close to being overcapacity.

Naturally, the toxic spill wasn’t good for the local marine life, so Curd and his mates sued Mosaic, seeking lost income and profits due to the damage to their fishing grounds.

The fishermen stated three causes of action.

The first was a statutory claim under §376.313(3) of the state’s environmental law. The statute authorizes a private cause of action for the prohibited release of pollutants and relieves a party from having to prove negligence.

The fishermen’s other two causes of action were common-law negligence and strict liability claims.

Thursday, the Florida Supremes dutifully removed the barriers to each of the fishermen’s claims.

Mosaic argued that the statutory claim failed because §376.313(3) only provides relief to property owners and the fishermen did not own any property damaged by the pollution that escaped from the company’s plant.

Not so, said the court.

“[T]he Legislature has enacted a far-reaching statutory scheme aimed at remedying, preventing, and removing the discharge of pollutants from Florida’s waters and lands. To effectuate these purposes, the Legislature has provided for private causes of action to any person who can demonstrate damages as defined under the statute.

“There is nothing in these statutory provisions that would prevent commercial fishermen from bringing an action pursuant to chapter 376,” the court said.

Mosaic had a similarly futile time in arguing that the economic loss doctrine prohibited the fishermen from recovering damages under common-law negligence and strict liability theories.

The company vehemently argued that it did not owe the fishermen an independent duty of care to protect their purely economic interests.

Undoubtedly with billowing plumes of BP oil on its mind, the court decided that Mosaic had a duty of care that arose out of the nature of its business and “the special interest of the commercial fisherman in the use of the public waters.”

The court said that Mosaic’s “activities created an appreciable zone of risk within which Mosaic was obligated to protect those who were exposed to harm. Mosaic’s business involved the storage of pollutants and hazardous contaminants. It was foreseeable that, were these materials released into the public waters, they would cause damage to marine and plant life as well as to human activity.”

On the other hand, the court explained, the fishermen “had a special interest within that zone of risk, an interest not shared by the general community. The fishermen were licensed to conduct commercial activities in the waters of Tampa Bay, and were dependent on those waters to earn their livelihood.

“Mosaic’s activities placed the fishermen’s peculiar interests directly within the zone of risk created by the presence of its facility. As a result, Mosaic was obligated to exercise prudent foresight and take sufficient precautions to protect that interest.” (Curd v. Mosaic Fertilizer)

– Pat Murphy


Lawyer denied bonus can’t get statutory penalties

Breaking up is hard to do. And when you’re an attorney planning on leaving a law firm, you want to give some serious thought to timing your departure.

For example, you just might want to hold off announcing your departure until after you pocket that year-end bonus you’ve come to expect.

One Connecticut personal injury lawyer found out the hard way that he could have saved himself a lot of trouble by waiting a couple of months before announcing a career move.

Angelo Ziotas joined The Reardon Law Firm as an associate in 1992, shortly after passing the bar.

The New London, Connecticut, firm handles personal injury cases. Robert Reardon heads the firm.

When Ziotas started, he had a base annual salary of $35,000. His first year, he also received a $12,000 “year-end” bonus.

Year-end bonuses at the firm were paid in December. There was no fixed formula for the determination of year-end bonuses under the terms of Ziotas’ employment contract.

Rather, the amount of the bonus as well as Ziotas’ base salary was pretty much up to discretion of Robert Reardon, the head of the firm, generally based on how profitable a year it had been.

Year-end bonuses nonetheless became a customary and significant portion of the compensation Ziotas received from the firm.

From 1993 through 1997, the amount of his base salary and bonuses increased annually. In 1997, the firm paid Ziotas a base salary of $62,600 and a bonus of $55,000.

Ziotas decided to leave the Reardon Law Firm in the fall of 1998. His last day of work was October 15, 1998.

To that point, Ziotas had received $55,600 in base salary for the year.

With the holidays coming up, Ziotas probably had some big plans for his last bonus check from the Reardon firm. Alas, December 1998 came and went without the check showing up in his mailbox.

Being a lawyer, he did what comes naturally: he sued.

Ziotas claimed that the Reardon Law Firm breached his employment agreement when it failed to pay him his 1998 bonus.

But Ziotas had another angle, one that had the chance of multiplying his damages. According to Ziotas, the loss of his bonus constituted a wrongful withholding of wages in violation Connecticut law.

The key to this claim was that, under state wage & hour law, by proving a violation the Reardon Law Firm would be liable for twice the amount of wages that Ziotas was otherwise due.

Ziotas won hands down on his breach of contract claim.

In 2006, a state court awarded Ziotas $50,000 in damages plus $45,000 in interest.

The Connecticut Court of Appeals affirmed that judgment in 2008, rejecting the Reardon Law Firm’s contention that nothing in Ziotas’ employment contract obligated the firm to pay a year-end bonus.

Unfortunately for the law firm, Reardon had apparently made statements to Ziotas that had “filled in the gaps” in the terms of the associate’s employment contract.

The court concluded that it was plain from conversations between Ziotas and Reardon at the time of hiring that a bonus would be part of the associate’s annual compensation.

Further, the court cited evidence that Reardon had assured Ziotas that his annual bonus would be prorated should he leave the firm during the course of a year.

Finally, the court concluded that the law firm’s promise of a substantial yearly bonus was more than a mere gratuity. Rather, it was a promise supported by consideration in the form of the acceptance of a lower salary by Ziotas.

But could Ziotas score really big by recovering double damages on a statutory wage & hour claim?

Unfortunately for the lawyer, the Connecticut Supreme Court earlier this month decided that his bonus didn’t constitute “wages” protected under the state law authorizing double damages.

The state law at issue defines “wage” as “compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis of calculation.”

The state high court in an earlier case had decided that “discretionary” bonuses are not wages.

Ziotas tried to argue that the state precedent did not bar his wage claim because, although the amount of his bonus was discretionary, he had established that the actual payment of the bonus was contractually required.

The court wouldn’t buy it.

It explained that state wage & hour law links earnings to an employee’s labor or services personally rendered – distinct from discretionary additional remuneration that employers like the Reardon Law Firm might give to reward to employees like Ziotas for the overall success of the business.

“Although an employee may have a justified expectation of additional compensation when the employer is contractually obligated to give a bonus to the employee and any contractual conditions, such as the employer’s annual profitability, are met, the relationship between performance and compensation is still attenuated if the amount of the bonus is discretionary and dependent on factors other than the employee’s performance,” the court said. (Ziotas v. The Reardon Law Firm)

So Ziotas gets his bonus but not the statutory penalty. And that’s after 11 years of litigation.

Given this outcome, perhaps a wiser course would have been for Ziotas to tough it out those last few months of 1998 and leave after his bonus check was safely deposited in his bank account.

– Pat Murphy


Karnak predicts: Fortune teller can ply his trade

I place fortune tellers in the same category as those football sharpies who claim they can give bettors a guaranteed win for that big college football game.

If they’re so good at predicting the future, why aren’t they enjoying the good life on the Riviera?

I mean, if they really do have great powers of analysis (in the case of the football touts) or clairvoyance (in the case of the fortune tellers), why do they need to scam some poor, gullible yokel out of a few dollars he can ill afford?

If I was a fortune teller who truly had “the gift,” it seems to me a few strategic investments in pork belly futures would get me that mansion in the Hamptons, rubbing elbows with celebs like Carrot Top.

Courts typically have viewed fortune telling for a fee as a fraudulent enterprise, like I do.

So being a mere mortal, unable to see the future, I was dumbfounded when last week one state high court granted a fortune teller the full protection of the First Amendment.

The case involved Nick Nefedro.

Nefedro tells fortunes for a fee in several locations across the country. He wanted to set up business in Montgomery County, Maryland.

In furtherance of that desire, Nefedro allegedly leased a store, furnished it, and placed a sign in his storefront announcing that he would soon be open for business.

Nefedro may be great at reading the future, but apparently he has trouble reading local ordinances.

You see, Montgomery County has an ordinance that specifically prohibits the acceptance of remuneration for the performance of fortune telling.

So when Nefedro applied for a business license, the Montgomery County Licensing Department said no.

Now, it may be hard for Nefedro to explain how he, as a fortune teller, could have been taken aback by this development.

In any event, in 2008 he sued claiming the ordinance violated his right to free speech under the First Amendment.

The state circuit court upheld the constitutionality of ordinance.

But on Thursday, the Maryland Court of Appeals, which is the state’s highest court, vindicated Nefedro by holding that fortune telling is protected by the First Amendment.

Montgomery County argued that fortune telling is “inherently fraudulent” and therefore isn’t protected speech.

The Maryland high court, perhaps under Nefedro’s spell, concluded that fortune telling for a fee must be treated as legitimate speech.

“While we recognize that some fortunetellers may make fraudulent statements, just as some lawyers or journalists may, we see nothing in the record to suggest that fortunetelling always involves fraudulent statements.

“Indeed, fortunetellers, like magicians or horoscope writers, are able to provide entertainment to their customers or some other benefit that does not deceive those who receive their speech,” the court said. (Nefedro v. Montgomery County)

Montgomery County argued to no avail that, even if fortune telling is protected under the First Amendment, its ordinance was a constitutional regulation of commercial speech. 

The court, however, rejected the notion that fortune telling is commercial speech.

It explained that the “purpose of fortunetelling is not to propose a commercial transaction, nor is it solely related to the economic interests of the speaker. The purpose of fortunetelling is instead to provide some other benefit to the individuals involved, whether entertainment or information that sheds light on future events. 

“This is true even though the fortuneteller may receive money in exchange for his or her services; the fact that there is an economic motivation for speech does not transform non-commercial speech into commercial speech.”

As a fortune teller, Nefedro probably knew this was how it would end all along.

So that must explain why way back in 2008 he so confidently started setting up his business.

Perhaps he can tell us whether Montgomery County will appeal to the U.S. Supreme Court.

Montgomery County apparently doesn’t employ fortune tellers, so it doesn’t have an answer for that question just yet.

County spokesman Patrick Lacefield in a clever play of words told The Washington Post that he doesn’t have a “crystal ball,” so he doesn’t know if the county will appeal.

– Pat Murphy


Court kicks open door for Internet defamation suits

The Internet has proven to be a tough field of play for personal injury attorneys and those clients who claim that they’ve been defamed by web postings.

The First Amendment protects the anonymity of defendants who post defamatory comments.

The federal Communications Decency Act immunizes the deep pockets.

Yesterday, plaintiff’s attorneys received some good news for a change.

Yes, one state supreme court dramatically lowered the bar for demonstrating personal jurisdiction over an out-of-state defendant who gripes over the Internet about a plaintiff’s business practices.


Engine block complaints

The case involved a rather mundane dispute over an MR-1 Pontiac engine block.

In 2006, Scott Roberts needed one. Roberts is a long-time resident of Virginia.

He discovered the engine block he needed advertised on the website of Kauffman Racing Equipment.

Kauffman Racing is an Ohio limited liability company that makes engine blocks and related high-performance automotive equipment.

Roberts purchased the Pontiac engine block from Kauffman Racing and had it shipped to him in Virginia.

Eight months later Roberts was not a happy customer. He claimed the engine block was defective.

Although the engine block had been sold “as-is,” Kauffman Racing agreed to have it shipped back to Ohio for inspection. If the company verified that the engine block was defective, the company would buy it back from Roberts.

Kauffman Racing inspected the engine block and determined that the problem was that Roberts had made substantial modifications to it.

So the company shipped it back to Roberts and told him he was out of luck.

This made Roberts very unhappy, so he went on a cyber-rampage in the fall of 2006, posting numerous negative comments about Kauffman Racing on various websites devoted to automobile racing equipment.

Roberts’ commentary appeared on the public-forum section of the websites PerformanceYears.com and PontiacStreetPerformance.com, and in an item description on the Internet auction website, eBay Motors.

In one post, Roberts said about his purchase of the engine block: “I guess it doesn’t matter that the day I got it all of the defects exsisted and nothing I have done caused them. But don’t worry about that. What I loose in dollars I will make up in entertainment at their expence.”

In another post, Roberts boasted that his criticism of Kauffman Racing was not designed “to get a resolution.” Instead, he said “I have a much bigger and dastardly plan than that and this is the perfect place to start.”

Part of that dastardly plan involved listing the engine block for sale on eBay.

In the item description, Roberts wrote that the service he received from Kauffman Racing was “less than honorable,” claiming that when he complained about the part he was basically given “the middle finger salute.”

In a post on another site, Roberts gave insight into his strategy for advertising the engine block on eBay.

“As far as the block on e-bay. Thats nothing more than getting the FACTS out to more people,” Roberts wrote. “Do you believe anyone will read that add and buy it? I can assure you this block issue is faaaaar from over. Do you think I would spread this around like I have and plan to if I thought I couldn’t back EVERYTHING up?”

Apart from being distressed by Roberts’ spelling and grammar issues, Kauffman Racing started to feel that the unhappy customer’s sniping might hurt its business.

According to Kauffman Racing, at least five Ohio customers raised the issue of Roberts’ Internet postings.

So the company sued in Ohio state court for defamation and tortious interference with its business relationships.

The trial court dismissed the case, concluding that the Ohio long-arm statute did not confer jurisdiction and that the exercise of personal jurisdiction over Roberts would deprive him of his right to due process under the Fourteenth Amendment to the U.S. Constitution.


Long-arm jurisdiction

Roberts argued that, as a Virginia resident, Ohio’s long-arm statute did not confer personal jurisdiction because he did not direct the alleged defamatory statements to Ohio or publish them in that state.

But yesterday the Ohio Supreme Court decided that what mattered was that the comments were received in Ohio by Ohio residents.

In reviving Kauffman Racing’s complaint, the court explained that “Roberts posted his allegedly defamatory statements on the Internet, ostensibly for the entire world to see. How much of the world saw the comments is unknown; but we do know that at least five Ohioans saw Roberts’s statements. The comments were thus published in Ohio.”

Moreover, the court concluded that Ohio’s long-arm statute conferred jurisdiction — even if his statements were not “published” within the state — based on evidence that Roberts had a reasonable expectation that he would inflict injury in Ohio.

“It is clear from the postings that Roberts’s statements were made with the purpose of injuring [Kauffman Racing],” the court said. “Therefore, the long-arm statute permits the exercise of personal jurisdiction over Roberts in Ohio.”


Due process 

Next up for the Ohio Supreme Court was the issue of due process.

The court concluded that due process was satisfied because Roberts had minimum contacts with Ohio, satisfying “traditional notions of fair play and substantial justice.”

The court said that the minimum contacts requirement was met because Robert “purposefully availed” himself of the privilege of conducting activities within Ohio.

“The allegedly defamatory communications concerned [Kauffman Racing’s] activities in Ohio,” the court said. “We are not dealing with a situation in which jurisdiction is premised on a single, isolated transaction. The posts detailed the transactions between Roberts and [Kauffman Racing]. …

“Moreover, the purchase of the engine block and subsequent transfers from Virginia to Ohio and back again served as the foundation from which this dispute arose. Roberts’s allegedly defamatory posts were predicated on his course of dealing with an Ohio resident corporation.”

The court concluded on a strident note, saying it would not “allow a nonresident defendant to take advantage of the conveniences that modern technology affords and simultaneously be shielded from the consequences of his intentionally tortious conduct.” (Kauffman Racing Equipment v. Roberts)


O’Donnell dissents

Justice Terrence O’Donnell, in a compelling dissent, complained that “the majority has extended the personal jurisdiction of Ohio courts to cover any individual in any state who purchases a product from an Ohio company and posts a criticism of it on the Internet with the intent to damage the seller. This holding changes long-arm jurisdiction dramatically.”  

The justice expressed deep skepticism with the majority’s conclusion that Roberts had minimum contacts with Ohio sufficient to satisfy due process.

O’Donnell explained that “Roberts posted his comments on three general auto-racing websites and an auction site, none of which have any specific connection to Ohio or are more likely to be viewed by a resident of Ohio than by a resident of any other state. …

“By merely posting to general websites, Roberts neither deliberately engaged in significant activities within Ohio nor purposefully directed his activities at an Ohio resident sufficient to establish minimum contacts and satisfy due process — regardless of his intent.”

O’Donnell questioned how the exercise of personal jurisdiction in this case satisfied due process concerns.

“Subjecting all individuals to suit in Ohio who post Internet reviews — no matter how scathing — of purchases made from Ohio companies does not comport with the due process notions of ‘fair play and substantial justice,'” he wrote.

– Pat Murphy


Law firm scores knockout in state probe

What authority does a state agency have to investigate a law firm for consumer protection violations?

None whatsoever.

At least that’s what one state supreme court decided this week in a knockdown, drag out between a debt collection firm and a consumer affairs agency.


Abusive debt collection? 

The case involved Frederick J. Hanna & Associates. The Marietta, Georgia, law firm is well known in the business of debt collection.

Some in Georgia apparently feel that Hanna & Associates is a bit heavy handed in its debt collection activities, so they’ve complained to the Georgia Office of Consumer Affairs.

Those complaints landed on the desk of Joseph P. Doyle. His job is to enforce the Georgia Fair Business Practices Act.

In 2009, Doyle decided it was high time to take on the Hanna law firm. To get the ball rolling, he issued an investigative demand to Hanna.

Naturally, the law firm refused to turn over the requested documents, forcing Doyle to file an action in Cobb County Superior Court to compel Hanna’s compliance.

Hanna won Round One of this Georgia Clash of the Titans.

Last September, Cobb County Superior Court Judge S. Lark Ingram decided that the state’s demand from Hanna & Associates violated the state constitution’s separation of powers doctrine.

Judge Ingram concluded that this was an instance of the state executive interfering with the state judiciary’s authority to regulate the practice of law.


Exemption for attorneys 

This week Hanna scored a TKO in Round Two before the Georgia Supreme Court.

Doyle trotted out his best argument only to have it swatted down.

It is well established that the debt collection practices of attorneys are subject to regulation by the Federal Trade Commission in its enforcement of the Fair Debt Collection Practices Act.

Doyle argued that the same should hold true for a state agency in its enforcement of the Georgia Fair Business Practices Act.

But the Georgia Supreme Court decided that, because the state law does not include a clear legislative mandate for the regulation of attorney-client relationships in the debt collection context, it should be presumed that the consumer protection statute does not regulate the practice of law.

Essentially, the court side-stepped the separation of powers issue to conclude that “a law firm whose day-to-day operations require licensed, practicing attorneys” is exempt from the Georgia Fair Business Practices Act.

What’s important to note here is that the Hanna law firm did not come under the ambit of the state consumer law even though it employs many nonlawyers who are engaged in debt collection activities.

The court held “that the representation of clients by a law firm does not come within the [Georgia Fair Business Practices Act] even if certain services were provided by nonlawyers within the firm and could have been offered by a company without any attorneys. …

“If [Hanna’s] employees engaged in wrongful conduct against debtors, the remedy must be found outside the [Act].” (State ex rel. Doyle v. Frederick J. Hanna & Associates)


‘Punch in the face’ of consumers?

Justice Harold D. Melton, joined by two of his colleagues, dissented.

Melton reasoned that the Georgia Fair Business Practices Act is a law of “general application” that “has nothing to do with impermissibly regulating the practice of law.”

He argued that the majority’s decision in favor of Hanna inappropriately placed lawyers above the law by writing an exception into a law of general application that does not exist.

“A lawyer can, and must, practice law without punching people in the face,” Melton wrote. “And a lawyer can, and must, practice law without violating the [Georgia Fair Business Practices Act] by abusing members of the public. The fact that one is practicing law does not place one above it.”

Noting that the Georgia law expressly provides that it should be interpreted in a manner consistent the Federal Trade Commission Act, Melton couldn’t understand why a state administrator such as Doyle wouldn’t be able to investigate the Hanna firm just as his counterpart in the FTC would be authorized to do.

Melton explained that “the collection of consumer debts is a commercial practice, regardless of who is collecting the consumer debts. The FTC Act would apply to such practices. …

“The majority, however, would interpret the [Georgia Fair Business Practices Act] such that the statute would not apply where the FTC Act would, which is directly contrary to the legislative mandate that we interpret the statutes in such a manner that they be consistent with one another.”

– Pat Murphy