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Monthly Archives: July 2010

Fireworks as 11th Circuit rights a wrong

I may not be a federal judge, but even I understand that a sentence of 17 ½ years isn’t nearly enough for a man who raped and tortured 50 little girls.

Fortunately, the judges of the 11th Circuit had the chance to correct that mistake.

And correct it they did, albeit yesterday’s 256-page decision had the judges slinging bar stools at each other.

Let’s start with first principles.

The U.S. Sentencing Guidelines are a mess.

Like the U.S. Tax Code, the U.S.S.G. is a monstrosity that could only be the brainchild of someone who receives a government paycheck.

Since Congress created the U.S. Sentencing Commission in 1984, the federal judiciary from the Supreme Court on down has been debating how many angels can dance on the head of a pin.

My eyes bleed as I read federal judges trying to figure out who’s a career offender, what’s a violent felony and what to do about crack cocaine disparities.

Of course, the Supreme Court made everything so much clearer in Booker by rendering the guidelines advisory. Thanks guys.

So I guess we shouldn’t be that surprised when a federal judge in Florida decides that, yep, 17 ½ years is plenty for some misanthrope who serially terrorized young children.

William Irey pleaded guilty to one count of going overseas to create and transport child pornography. The charge related to his rape and torture of fifty or more little girls — some as young as four years of age — over a five-year period.

The nature of Irey’s crimes resulted in an adjusted offense level that ordinarily would have led to an advisory guidelines range of life imprisonment.

But because the government charged all of Irey’s crimes in just one count, his maximum under the guidelines was 30 years.

Fortunately for Irey, the district court decided that 30 years was too much.

Yes, the judge decided that pedophilia was an “illness” that had impaired Irey’s volition.

Since Irey was a “victim” of his illness, the judge saw fit to deviate downward from the 30-year guidelines range and imposed a sentence of only 17 ½ years.

Well, most of the judges on the 11th Circuit saw that Irey’s sentence was a matter of justice going off the rails, so the en banc court decided — with heated dissent — that Irey should get the 30-year maximum allowed under the circumstances.

“[W]e recognize that our substantive review of sentences is deferential and that we only look to see if the district court abused its discretion by committing a clear error in judgment. Even so, the sentence in this case can withstand review only if deference amounts to abdication, if sentencing discretion is unbridled, and if ‘unreasonable’ is a hollow term.

“The sentence that the district court imposed is a clear error in judgment, a mistake, and it is our responsibility to ‘correct such mistakes when they occur,'” wrote Judge Ed Carnes for the majority. (U.S. v. Irey)

It took 142 pages for Judge Carnes to explain why Irey’s sentence was unreasonable and contrary to the sentencing guidelines.

I was pretty much convinced after two paragraphs.

But even 142 pages of explanation wasn’t enough for the court’s dissenting judges.

Judge Gerald Tjoflat understood that Irey’s sentence was wrong. He just didn’t like the court stepping in and ordering a 30-year maximum rather than allowing the district judge the opportunity to redo Irey’s sentence

“Today, the court needlessly assumes the role of resentencer,” Tjoflat wrote. “In so doing, it cements this circuit’s answer to a question that continues to vex the nation’s courts of appeals: after Booker, what does appellate review of sentences for substantive “reasonableness” under an abuse of discretion standard mean?

“The correct answer … is to apply classic abuse of discretion review. The court’s answer is shocking: a simple objection that a sentence is ‘unreasonable’ grants a disappointed party the functional equivalent of a new sentencing hearing before the court of appeals.”

The judge proceeded to complain that “[t]oday’s decision sends the unmistakable message that the district court is nothing but a tryout on the road.”

Judge J.L. Edmondson, joined by three other judges, dissented from the majority’s decision to vacate Irey’s sentence in the first instance.

Edmondson plainly thought that the majority had overstepped its authority in reviewing Irey’s sentence.

“The issue is not whether federal appellate judges ought to do their duty. They must. And the issue is not whether appellate courts can review sentences and sometimes correctly set them aside, even when the sentence was imposed without procedural errors. They can.

“Appellate judges do have some legitimate power to review the substance of sentences: that is, to determine whether a District Judge has imposed a sentence that is either too lenient or too harsh as a matter of law. The general question presented here is what is the limit, under the law, on the power of appellate judges in deciding such reviews,” the judge wrote.

Judge Edmondson concluded that the facts of Irey’s case supported the reasonableness of his sentence.

“That this serious crime deserves a substantial term of imprisonment is beyond debate (and, in reality, has never been debated). I trust that most American judges (I hope all of them) would accept that 17.5 years of imprisonment is a substantial term of imprisonment,” the judge said. “And it 5 is years beyond the statutory minimum sentence for the only crime with which Defendant was charged.”

Summing up his position, the Judge Edmondson explained that “it is jurisprudentially important to steer clear of de novo review, or something resembling it, in an appeal about the substantive-reasonableness of a sentence.”

With all due respect to Judge Edmondson, someone needs to tap him on the shoulder and explain that there’s a real world out here.

A guy like Irey should never again see the light of day.

– Pat Murphy


Fired employee can’t blame philandering boss

Keeping a job in today’s environment can be tough enough without having to deal with a boss’s love life.

It certainly becomes a no-win situation when the boss’s illicit lover feels entitled to meddle in how the employee does her job.

But one particularly unfortunate employee found out from a federal judge last week that having to endure such a soap opera does not necessarily support a Title VII sex discrimination claim.

That unfortunate employee was Bette Foster.

Bette had a good gig as the Manager of Resource Development for The Humane Society in Rochester, New York. Her job included soliciting donations for Lollypop Farm, a pet adoption center.

According to Bette, one big fly in the ointment was that the Humane Society’s president, Alice Calabrese Smith, was having an affair with one of the organization’s largest donors.

If true, this was Grade One hanky panky, since both Smith and the donor were married to other people.

Bette claimed that, in addition to her being burdened with keeping the alleged affair under wraps, the donor felt entitled by virtue of his bedroom status to tell Bette how to do her job.

In fact, the donor became a big pain in the butt.

Bette alleged that the donor was in “constant contact” with her, offering unsolicited opinions as to how various events should be run.

According to Bette, if she disagreed with the donor’s suggestions or tried to limit his involvement, Smith the Humane Society president would step in and let her alleged lover have his way.

In 2009, after Bette groused about the intolerable situation, she was informed that “her services were no longer required.”

So off Bette went to federal court, suing the Humane Society for Title VII sex discrimination and retaliation.

But last week U.S. District Judge David Larimer had to explain to Bette that, however unfortunate, the circumstances of her job at the Humane Society were, they were not actionable.

“Nothing in the complaint suggests that [Bette] would have been treated any differently had she been a man. Moreover, the facts alleged here do not even show that a fellow employee was given preferential treatment over plaintiff.

“[Bette] alleges only that Smith’s indulgent treatment of a non-employee – the donor -made [Bette’s] job more difficult. She does not allege that she was treated less favorably than any other employee, male or female, for sexual reasons or otherwise. Her claim of sex discrimination must therefore be dismissed,” the judge wrote. (Foster v. Humane Society of Rochester and Monroe County)

– Pat Murphy


Post office gaff: Soldier’s mom gets letter marked ‘DECEASED’

Most mistakes made by the U.S. Postal Service are harmless enough.

The neighbors get your letters. You get the neighbors’ letters. A package left out in the rain.

But it’s unforgiveable when a mom’s letter to a soldier fighting in Iraq gets returned with the rubber stamp “DECEASED” when the young man is alive.

And you’d think that the Postal Service would be on the hook for some hefty damages for causing the mom’s emotional distress.

That’s what Joan Najbar wanted when she sued the Postal Service in federal court.

Yes, the Duluth, Minnesota mom alleged that she was the victim of just such a turn of events described above.

Najbar’s son served in the U.S. Army in Iraq in 2006 and 2007 when there was tough fighting and casualties were being reported virtually every day.

In September 2006, Najbar mailed her son a letter.

She claims that, a few weeks later, the letter was returned to her by the Postal Service, and the word “DECEASED” was stamped in red ink on the envelope.

One can only imagine the emotional turmoil at the moment she saw that letter.

Fortunately, the Red Cross was soon able to confirm that her son was alive, but that was only after the Postal Service proved unhelpful in determining that there had been a mistake.

Najbar told The Minneapolis-St. Paul Star Tribune that the Postal Service didn’t even apologize for the gaff. 

According to Najbar, she was already under the care of a psychiatrist when she received the letter. Of course, receiving the letter didn’t help her condition.

Najbar claimed that receiving the letter made her psychological problems worse, and that her emotional distress required additional medical treatment and cost her income.

So she sued the Postal Service for $118,000 under the Federal Tort Claims Act.


‘Negligent transmission’ of mail?

The Postal Service responded to Najbar’s emotional distress claim by citing two exceptions under 28 U.S.C. §2680 to the government’s waiver of sovereign immunity under the Act.

Section 2680(b) forecloses “[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.”

Section 2680(h) forecloses “[a]ny claim arising out of … misrepresentation.”

Earlier this month, U.S. District Judge Patrick J. Schiltz ruled that the Postal Service was not protected under §2680(b)’s “postal matter” exception.

The court found that application of the postal matter exception to Najbar’s emotional distress claim was precluded under the U.S. Supreme Court’s decision in Dolan v. United States Postal Service.

In Dolan, the Court allowed the claim of a woman who was injured when she tripped over letters and packages allegedly left on her porch by a U.S. Post Office employee.

Judge Schiltz in this case concluded that the Najbar’s emotional distress claim did not pertain to the “negligent transmission” of mail under Dolan.

“Najbar’s letter was not lost, nor was it miscarried. … [T]he Court finds that the ‘deceased’ stamp on the letter is not the kind of ‘damage’ to postal matter that qualifies as “negligent transmission,'” the judge wrote.

Judge Schiltz explained that Dolan “described § 2860(b) as reaching harms of the sort ‘primarily identified with the Postal Service’s function of transporting mail throughout the United States,’ and offered the ‘shattering of shipped china’ as an example of a claim arising from the delivery of mail ‘in damaged condition. …’

“When, as in this case, a claim is based not on damage to the contents of an envelope or package but only to markings on the exterior of the envelope or package, the claim does not arise from the ‘negligent transmission’ of mail and does not fall within § 2680(b).”


‘Misrepresentation’ exception applies

The Postal Service fared much better on its second ground for dismissal.

Judge Schiltz found that Najbar’s emotional distress lawsuit fit within the FTCA’s “misrepresentation” exception.

Najbar argued to no avail that §2860(h) only applies in the context of a claim for commercial damages.

The judge first construed the substance of Najbar’s claim.

“Najbar became ‘extremely distressed’ because the government was telling her, by returning the envelope stamped ‘deceased,’ that her son was dead. Had Najbar never seen the letter, or had she seen the letter only after having been warned by the government that someone mistakenly stamped ‘deceased’ on a letter to her son but he was in fact alive, she would not have suffered any damages,” the judge wrote.

He proceeded to conclude that Najbar’s lawsuit fell within §2860(h)’s misrepresentation exception.

“Congress used the word ‘misrepresentation,’ and that word is broad enough to reach all types of claims for misrepresentation, whether those claims seek recovery for commercial injury, physical injury, or emotional injury.

“Further, the word is broad enough to reach a claim based on a misrepresentation regardless of how, or even whether, the plaintiff relied on the misrepresentation. The Court therefore rejects Najbar’s (dubious) argument that her claim does not fit within the misrepresentation exception because the injuries she suffered were not caused by her reliance on the ‘deceased’ stamp,” the judge wrote. (Najbar v. U.S.)

This is a tough result to stomach given the extreme emotional distress that Najbar obviously must have experienced upon receiving the returned letter.

We’ll probably never know how it came to be that some Postal Service functionary precipitated a heart-rending emotional crisis by stamping “DECEASED” on Najbar’s letter.

But given the extraordinary circumstances of her case, you’d think that the law would afford her a remedy.

– Pat Murphy


‘Popcorn lung’ expert doesn’t make the grade


Photograph by Howcheng

Photograph by Howcheng

Personal injury attorneys are sick and tired of the accusation that they often resort to “junk science” in order to win that pot of gold for their clients.

But it doesn’t help to dispel that rap when a case is shot down because of an expert whose opinions aren’t ready for prime time.

And that’s exactly what happened earlier this month when a federal judge refused to give credence to an expert’s opinion that a man’s injuries were caused by his eating upwards of 28,000 bags of microwave popcorn.

Yep, that’s right, Larry Newkirk of Spokane Valley, Washington, claims that for eleven years he ate between five to seven bags of microwave popcorn each day.

You see, in 1987 Larry gave up smoking. In order to suppress his appetite and avoid gaining weight, Larry turned to microwave popcorn, bags and bags of microwave popcorn.

Larry preferred Act II Butter and Act II Butter Lovers popcorn made by Conagra Foods.

Of course, a problem with microwave popcorn in the 80s and 90s when Larry was pounding down the popcorn was that it contained trace amount of diacetyl, a flavoring agent used to provide a buttery taste.

Diacetyl exposure can cause bronchiolitis obliterans – sometimes referred to as “popcorn lung” – which is a severe lung disease. Conagra stopped using diacetyl in 2007.

Larry began experiencing shortness of breath, chest tightness, dry cough, and fatigue sometime between 2000 and 2003.

Hearing about the popcorn lung phenomena through media reports, Larry saw a pulmonologist who concluded that his lung problems were due to his history of smoking.

Dissatisfied with this diagnosis, Larry saw a specialist in the field who coincidentally serves as a plaintiffs’ expert.

Ta da!

The specialist diagnosed Larry as suffering from bronchiolitis obliterans.

So Larry filed an assortment of product liability claims against Conagra, alleging that he had developed popcorn lung as a result of eating the company’s microwave popcorn.

Plaintiffs’ attorneys have had more than a modicum of success in popcorn lung cases involving workers at popcorn plants.

The big hurdle for Larry in proving his claim was the level of his exposure to diacetyl.

You see, whereas popcorn plant workers may have been be exposed to diacetyl levels of up to 32.27 parts per million (ppm), Larry was claiming injury based on a 0.02 ppm level of diacetyl exposure.

And this is really where Larry’s expert witness, Dr. David Egilman, was called upon to do some heavy lifting.

Earlier this month, U.S. District Judge Rosanna Peterson found Dr. Egilman’s expert opinions wanting in the extreme insofar as his attempt to show causation in a consumer popcorn lung case.

In conducting her Daubert analysis, Judge Peterson first concluded that there was insufficient data for Dr. Egilman’s attempt to liken a consumer’s exposure to diacetyl to a worker’s exposure in a microwave popcorn plant.

“[T]here is nothing to support Dr. Egilman’s conclusion that is at the heart of this case: that the vapors emitted from a microwave popcorn bag contain the same proportion of chemicals or that all of the substances in the two instances are identical. To the contrary, at least one study considering as a side question whether the exposures of quality control workers popping microwave popcorn and mixers of butter flavoring and other ingredients experienced different exposures concluded that it was likely the exposures were qualitatively different,” the judge wrote.

The judge then turned to skewering Dr. Egilman’s methodology.

Noting that the good doctor in certain aspects of his testimony “provides no indication of external support for his conclusions,” the judge went on to find that “Dr. Egilman relies on existing data, mostly in the form of published studies, but draws conclusions far beyond what the study authors concluded, or Dr. Egilman manipulates the data from those studies to reach misleading conclusions of his own.”

Judge Peterson then came to the nub of the problem with Egilman’s testimony.

“There is simply too great an analytical gap between the existing data, indicating that exposure to butter flavoring vapors in the occupational setting can cause bronchiolitis obliterans, and Dr. Egilman’s opinion that a consumer of microwave popcorn is exposed to a vaporized substance equivalent to production plant butter flavoring vapors at levels sufficient to cause bronchiolitis obliterans,” the judge said. (Newkirk v. Conagra Foods)

With Larry’s key expert excluded, his case foundered on the rocks and Judge Peterson granted Conagra’s motion for summary judgment.

Which brings us back to the original point: Why bring the case at all with such sketchy expert testimony? 

– Pat Murphy


Insurance ‘stacked’ in crash between ATV, motorcycle


Photograph by Ltz Raptor

Photograph by Ltz Raptor


You’d think parents would know better than to bring both an ATV and a motorcycle into a home in which young boys are being raised.

Geez, why not go all in and just leave loaded guns lying around the house?

Fortunately, one young boy who suffered serious injuries in an all-too predictable intra-family ATV/motorcycle crash will have the benefit of two $100,000 policy limits.

The accident occurred in Illinois when Luke Kocher was a passenger on an all-terrain vehicle (ATV) driven by his father, Tim Kocher.

Luke’s brother, Nick Kocher, was driving the family’s motorcycle.

Through a cascade of misjudgments we can only begin to imagine, the motorcycle and ATV collided.

Luke suffered head injuries in the crash that kept him in a hospital for five days. He ended up having to undergo three surgeries.

Then came the bills.

Tim and his wife, Paula, hoped they would get the full benefit of a Progressive Premier Insurance policy that covered both the ATV and the motorcycle.

In their minds, “full benefit” meant two $100,000 bodily injury liability limits because two covered vehicles were involved in the accident.

Progressive took a different view of its contractual obligations.

The insurance company went to court for a declaration that its liability was limited to $100,000, the policy limit provided for bodily injury liability for a single vehicle.

The Illinois courts were in a quandary over this one because there wasn’t precedent for an accident involving the collision of two vehicles covered under the same policy.

Richland County Circuit Court Judge Larry Dunn found that Progressive’s policy didn’t clearly address this situation either and, given the ambiguity, ruled in favor of the Kochers.

Earlier this month, the Illinois Court of Appeals agreed that Progressive’s limitation-of-liability provision – commonly referred to as an anti-stacking clause – did not preclude the Kochers’ claim for separate limits.

The Kochers argued that the limitation-of-liability provision didn’t apply because this wasn’t a case of stacking in the traditional sense.

According to the Kochers, rather than seeking to aggregate coverage, they were seeking to receive up to the policy limits for each vehicle involved in the accident.

Progressive argued that this didn’t matter because its policy plainly limited its liability to the policy limits for one vehicle.

The Illinois Court of Appeals concluded that the Kochers had the better of the argument, looking beyond the anti-stacking clause at issue to the entirety of the Progressive insurance policy.

“[B]oth the general policy provisions and the declarations page contain anti-stacking language. The former provides that the most Progressive will pay is the limit shown on the declarations page. The latter provides that the policy limits shown for any one vehicle ‘may not be combined with the limits for the same coverage on another vehicle.’

“Because the clause in the general policy provisions refers to ‘[t]he limit of liability shown on the Declarations Page,’ it depends for its meaning on a determination of what the limit shown on the declarations page is. The anti-stacking language in the declarations page is subject to two reasonable interpretations.

“The statement can be read to prohibit only true stacking – that is, it can be read to prohibit combining the coverage for vehicles that were not involved in the accident with the coverage for a vehicle that was involved. In that case, the policy unambiguously provides full coverage for any vehicle actually involved in an accident.

“The statement might also be read to preclude recovery of the policy limits for more than one vehicle under any circumstances. In that case… the listings of coverage separately for each vehicle create an ambiguity which must be resolved in favor of coverage.

“Because we must resolve any ambiguities in favor of the insureds, either interpretation leads us to conclude that the policy provides coverage for both the ATV and the motorcycle,” the court said. (Progressive Premier Insurance Company of Illinois v. Kocher)

So hopefully Luke has recovered from his injuries and the Kochers will be made whole by Progressive’s double payment of bodily injury limits.

And perhaps the Kochers might give thought to ridding themselves of the ATV and motorcycle until all of their boys reach adulthood.

Kids can be reckless enough without giving them access to gas-powered vehicles that are infinitely more dangerous than the family car. 

– Pat Murphy


A stick in the eye for war vets


First Amendment cases can be tough. The unpopular opinion gets protected. That’s the price of freedom.

Okay, I get that.

But I doubt if the Founding Fathers really intended that the First Amendment provide cover for a multi-billion dollar adult entertainment industry to coarsen our culture.

And with all due respect to the current members of the U.S. Supreme Court, I just can’t wrap my mind around their decision that the Constitution somehow protects someone’s right to produce horrific images of animal torture.

But First Amendment jurisprudence must really be off the rails if it leads a federal judge in Colorado to conclude that it’s an exercise of free speech to lie about one’s heroism and sacrifices on the battlefield in the service of our country.

That remarkable conclusion was reached in the case of Rick Strandlof. The government has charged Strandlof with violating the federal Stolen Valor Act.

The Act makes it a crime “to falsely represent[] [oneself], verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States. …”

Prosecutors allege that Strandlof falsely represented himself to have been awarded a Purple Heart on four different occasions in 2006 and 2009, and falsely represented that he had been awarded a Silver Star on one occasion in 2009.

According to The Denver Post, Strandlof made these claims posing as Rick Duncan, a wounded Marine captain, in an effort to solicit funds for the Colorado Veterans Alliance – an organization allegedly founded by Strandlof.

Seeking to avoid the charges, Strandlof argued that the Stolen Valor Act is facially invalid as a content-based restriction on free speech.

On Friday, U.S. District Judge Robert E. Blackburn agreed that the Act violates the First Amendment and dismissed the charges against Strandlof.

The decision appears to be the second of two decisions addressing the constitutionality of the Act.

In a 2008 decision from the U.S. District Court for the Central District of California, Judge R. Gary Klausner rejected a First Amendment challenge to the Act raised by Xavier Alvarez, who falsely claimed to have received the Congressional Medal of Honor.

Alvarez’s appeal is currently before the 9th Circuit.

Unfortunately, the decision in U.S. v. Alvarez wasn’t compelling enough for Judge Blackburn in Strandlof’s case.

The government tried to argue that, because Strandlof was not conveying a political message, speaking on a matter of public concern, or expressing a viewpoint or opinion, his speech did not merit constitutional protection.

But Blackburn concluded that this argument has been foreclosed by the U.S. Supreme Court’s decision earlier this year in U.S. v. Stevens.

In Stevens, the Court found unconstitutionally overbroad the federal statute criminalizing the commercial creation, sale, or possession of certain depictions of animal cruelty.

Judge Blackburn said that Stevens “counsels extreme delicacy in accepting the government’s proposal to remove defendant’s speech entirely from the realm of First Amendment consideration.”

The one argument left to the government under Stevens was that the Stolen Valor Act is a legitimate restriction on fraudulent speech.

But that argument didn’t fly for Judge Blackburn.

“The principal difficulty I perceive in trying to shoehorn the Stolen Valor Act into the First Amendment fraud exception is that the Act, although addressing potentially fraudulent statements, does not further require that anyone have been actually mislead, defrauded, or deceived by such misrepresentations. To survive constitutional scrutiny, a common law cause of action for fraud requires proof of harm or detrimental reliance. …

“Yet as written, the Act criminalizes the mere utterance of the false statement, regardless whether anyone is harmed thereby. It is merely fraud in the air, untethered from any underlying crime at all. Given the clear language of Stevens, I cannot find such incipient and inchoate criminality completely beyond the purview of the First Amendment,” the judge wrote.

Having dispensed with the fraud argument, Judge Blackburn proceeded to conclude that the Act was a content-based restriction on speech subject to strict scrutiny.

It was unfortunate that the judge rejected the notion that the Act serves the compelling interest of protecting the sacrifice, history, reputation, honor, and meaning associated with military medals.

Nor was he impressed by the government’s claim that the Act promotes a compelling interest in promoting heroism and sacrifice by the members of our armed forces.

“To suggest that the battlefield heroism of our servicemen and women is motivated in any way, let alone in a compelling way, by considerations of whether a medal may be awarded simply defies my comprehension. Indeed, the qualities of character that the medals recognize specifically refute the notion that any such motivation is at play. …

“I find it incredible to suggest that, in the heat of battle, our servicemen and women stop to consider whether they will be awarded a medal before deciding how to respond to an emerging crisis,” the judge said. (U.S. v. Strandlof)

Now that view I can appreciate.

Heroism on the battlefield comes without much if any forethought, mostly from instinct born of repetitive training, doing what is required to save a buddy.

So at the moment the promise of a medal is as irrelevant as anything could be.

But that doesn’t mean there isn’t something innately criminal for someone to falsely claim the valor that others earn on the battlefield.

And whether it takes some higher court or a tweaking by Congress, we can be hopeful that there will be a price to pay for those who attempt to steal the valor of others.


– Pat Murphy


Of Segways, periscopes and baseballs

What’s the deal with Illinois?

This summer, the state’s courts have dealt with personal injury cases involving people who have been bucked from Segways, bashed by periscopes, and bonked by baseballs.

Yet it looks as though none of those plaintiffs will recover a penny for their injuries.

C’mon ye members of the Illinois plaintiffs’ bar, let’s pick it up a notch!


Segway misadventure

Ah, Chicago, that toddlin’ town.

What a treat to tour one of the world’s great cities.

Me, I’m a big-time fan of the old-time gangsters, so I’m all for those cheesy bus tours that check out the haunts of Al Capone and deliver you to scene of the St. Valentine’s Day Massacre.

A bus tour may not be the way to experience “real” Chicago, but it sure beats seeing the city by Segway, at least I’m sure that’s what Shelle Hamer would say now.

The fateful day was March 30, 2007.

Hamer and her son signed up for a Segway tour of downtown Chicago with the inventively named City Segway Tours of Chicago (CST).

You know the Segway. It’s that dorky two-wheel “human transporter” that was supposed to replace the car. Unveiled in 2001, we were all supposed to have one by now and the planet would be saved. (Yea planet!)

Then we came to our senses.

At least most of us did. Hamer just had to try one out.

After receiving operating instructions from a CST tour guide, off Hamer went on a Segway to enjoy the sights of Chicago.

The tour was going great until Hamer attempted to ride her Segway up a small grassy hill. On her way up the hill, the Segway threw her off.

Her resulting injuries kept her from work for four months.

What else was there to do but sue CST for her injuries?

According to Hamer’s complaint, CST negligently permitted her to operate her Segway in a dangerous location, without properly instructing her about the danger.

Hamer had one big problem in holding CST liable, and that was the release she signed before going on the tour.

Last month, the Illinois Court of Appeals decided that CST’s standard release was airtight, sinking Hamer’s personal injury claim.

“In the release, Hamer accepted the risk that she could fall; in her complaint she alleged that she fell. In the release, she accepted the risks of riding on irregular roads and pavement surfaces; in her deposition she admitted that she rode on an unpaved, irregular surface. …

“In the release, she accepted the risk of personal injury caused by the actions of others, excepting only gross negligence by CST employees; in her complaint she alleged that the injury resulted from CST’s acts of ordinary negligence. …

“We find that the release clearly applies to the occurrences complained about in Hamer’s complaint as well as those described in her deposition,” the court said. (Hamer v. City Segway Tours of Chicago)


Up periscope! 

When you hear that an investigator for the state of Illinois was injured by a periscope, you might wonder whether the state has secretly launched a fleet of submarines to patrol Lake Michigan, torpedo drug runners and project its power against Chicago’s evil nemesis — New York City.

But the periscope that Charles Salerno injured himself on was installed in an IST-6000 surveillance van sold by Innovative Surveillance Technology (IST) to the Cook County State’s Attorney’s office.

The state used the van to conduct surveillance in conjunction with undercover drug investigations.

And that’s what Salerno was doing in October 2003 when he attempted to stand up inside the cargo area of the IST-6000.

Salerno struck his head on the unpadded metal portion of the periscope, which was suspended from the ceiling, and unfortunately suffered severe head injuries.

Salerno brought strict liability and negligence claims against IST, alleging that the periscope lacked adequate padding and that the company failed to provide adequate warnings of the danger.

But late last month the Illinois Court of Appeals affirmed a summary judgment for IST.

Tossing Salerno a bone, the court decided that the trial judge had wrongly dispensed with his lawsuit by applying the open and obvious doctrine. The court noted that, under state law, a product’s open and obvious risk of harm is not an absolute defense to a defective design theory of strict liability.

But Salerno’s defective design theory failed nonetheless, the court said, because IST’s periscope had been designed for extra padding. The padding for this particular periscope was unfortunately missing.

Forced to effectively concede his defective design claim, Salerno’s remaining claims fell like dominos.

“Plaintiff’s admission that there is ‘nothing to criticize’ in IST’s design constitutes a waiver of his negligence claim just as it did with respect to his strict liability claim. …

“And again, because plaintiff conceded that he had no criticism of the van’s design, IST cannot be liable for a negligent failure to warn,” the court said. (Salerno v. Innovative Surveillance Technology)


Baseball  beaning

Three strikes and you’re out!

The third strike for this collection of Illinois personal injury plaintiffs comes in the case of Debbie Vaughn.

The facts of Vaughn’s case are simple.

On May 20, 2005, Vaughn attended her son’s baseball game at West Frankfort Park. While watching her son’s game from the bleachers, Vaughn was hit in the eye by a baseball thrown by an 11-year-old player warming up for the next game.

So Vaughn sued the West Frankfort Recreation Association for negligence, claiming that the organization should have taken steps to prevent players from warming up in an unsafe area close to the bleachers.

You know how this ends.

Naturally, the West Frankfort Recreation Association was immune under the state’s recreational use statute, and the Illinois Court of Appeals last week confirmed a state trial judge’s directed verdict to that effect.

“Our reading of the Recreational Use Act leads us to believe that the legislature was not trying to throw a curve ball with regard to its intent, but rather we think its objective was thrown right down the pipe: ‘The purpose of this Act is to encourage owners of land to make land … available to the public for recreational … purposes by limiting their liability toward persons entering thereon for such purposes,'” the court said. (Vaughn v. Barton)


– Pat Murphy


Text message to witness gets case booted

Judges tend to be a humorless lot when it comes to witness tampering, whether it’s a Mafioso threatening to break someone’s legs or a party signaling a witness on the stand during a civil trial.

Underscoring that point, a Florida court last week issued a decision which it described as “an object lesson for any corporate officer thinking of using old or new methods of witness tampering during deposition or trial.”

The case involved a dispute between two Florida real estate development companies.

Sky Development, Inc. was just peeved enough to filed a lawsuit against Vistaview Development, Inc.

Sky’s manager was deposed during the course of the lawsuit.

Sky’s Chief Financial Officer was also present at the manager’s deposition and at some point apparently became concerned about how the witness was handling certain questions.

Unable to resist the urge to be helpful, Sky’s CFO passed the manager a note that read, “Don’t worry about pleasing him. Just say no.”

The magistrate presiding over the deposition learned of the note and issued a warning forbidding any further messages.

That warning apparently wasn’t taken to heart.

At trial, it was the CFO’s turn to take the stand. A sidebar occurred while the CFO was being questioned about a key document.

During the sidebar, while the CFO was still on the stand, Sky’s sole shareholder sent the CFO two text messages regarding receipt of the document.

The first text message read: “We maybe got this document after September 7th when the bank discovered the problem.”

A minute later the shareholder texted a second time, telling the CFO, “We never filed a lawsuit against seller. These people developed the site 40 years ago, in 40 years, and know every corner.”

Well, all hell broke loose.

The text messages were brought to the attention of the trial judge, Miami-Dade County Circuit Court Judge Scott Silverman, who promptly declared a mistrial.

Feeling that stronger medicine might be required, Judge Silverman invited Vistaview to move for dismissal, which the company promptly proceeded to do.

With his invitation accepted, Silverman dismissed Sky Development’s complaint with prejudice.

And if you thought that Sky Development might find any sympathy on appeal for Judge Silverman resorting to the nuclear option, think again.

The Florida Court of Appeals concluded last week that Sky Development’s “misconduct was certainly a ‘blatant showing of fraud, pretense, collusion or other similar wrongdoing.'”

The court explained that fraud in the courtroom setting occurs when it is “clearly and convincingly” demonstrated that a party has “sentiently” set in motion some “unconscionable scheme” calculated to interfere with the judicial system’s ability to fairly try a case, improperly influence the trier of fact, or unfairly hamper the presentation of the opposing party’s case.

With respect to Sky Development’s conduct in its lawsuit against Vistaview, the court simply said that there “was ample evidence for the trial court to conclude that just such an unconscionable scheme was underway here. This is not a case where the dismissal was unreasonably harsh.” (Sky Development v. Vistaview Development)

– Pat Murphy


Law firm plays offense in battle over fees

You’d think lawyers of all people would understand the importance of getting an agreement in writing.

And what’s more important than an agreement over how fees from a particular case will be divvied up?

Yet it’s amazing at how often lawyers find themselves in court simply because someone neglected to draft a simple fee-sharing agreement and get it signed by all the necessary parties.

A federal appeals court decision handed down Friday shows just how a referring attorney may be left out in the cold when he fails to observe the required formalities for sending a personal injury case to out-of-state counsel.

This tale of woe begins with the personal tragedy of Ernie Fazio.

Fazio’s sister-in-law, Beverly Townsend, and her husband, Douglas Townsend, were killed in an automobile accident in Missouri.

Fazio is a long-time client of Cummings, McClorey, Davis & Acho (CMDA), a Michigan law firm.

In November 2006, Fazio called James Acho at CMDA to discuss the handling of the wrongful death claims of two of Beverly’s children, Michael Richina and Khemya MitRahina.

Acho later spoke with Richina and the two agreed that CMDA would either pursue the lawsuit in Missouri or refer the case to a Missouri law firm.

Acho ultimately decided the best course was to refer the case and he contacted Patrick Eng, a founding partner at the Missouri law firm of Eng & Woods.

Eng agreed to take the case, but it was during these initial conversations between the two lawyers that the seeds for a full-blown fee dispute were sown.

Acho insists that Eng agreed that CMDA would receive one-third of the fees that Eng & Woods obtained from any verdict or settlement.

Eng denies that they reached any such understanding.

What is undisputed is that Acho failed to get any agreement as to fees in a writing signed by all interested parties.

Instead, Acho sent Eng a letter purporting to memorialize CMDA’s entitlement to one-third of the fees.

While Acho relied on his letter, Eng was careful to get everything his law firm needed in signed contracts.

Both Richina and MitRahina entered into contingent fee contracts with Eng & Woods. In the contracts, Eng & Woods agreed to represent Richina and MitRahina in exchange for one-third of any recovery.

Not surprisingly, neither contract mentioned any fee agreement with Acho or CMDA.

In December 2007, Eng & Woods settled the case for $1,875,000 and received $375,000 as its fee.

Acho learned the happy news and awaited CMDA’s one-third slice of $375,000.

But Acho was to be disappointed.

Eng & Woods sent CMDA a paltry check for $18,562.50 “in consideration for the contact information for purposes of obtaining Mr. Richina’s case.” This amount represented 5 percent of Eng & Woods’s entire fee from the case.

Well, Acho was quickly on the phone with Eng and things got a bit heated. When Acho refused to accept the check in full satisfaction of the amount owed CMDA, Eng stopped payment.

Anticipating things getting uglier and wanting to get in the first shot, Eng & Woods sued in federal court seeking a declaration that CMDA had no right to any portion of the fees recovered by Eng & Woods from Richina and MitRahina.

Taking the offensive, Eng & Woods argued that any alleged fee-sharing agreement with CMDA was unenforceable because the Michigan law firm failed to abide by the Missouri Rule of Professional Conduct controlling such agreements.

Not to be outdone, CMDA counterclaimed for breach of contract, fraud and misrepresentation, unjust enrichment, and bad faith.

But Acho and CMDA had one big problem. Aside from Acho’s letter, there was nothing in writing indicating a fee-sharing agreement between CMDA and Eng & Woods.

And that was fatal because, under Rule 4-1.5(e) of the Missouri Rules, a fee-sharing contract must include written confirmation of the arrangement by the client, and CMDA had nothing in writing from Richina and MitRahina.

Acho and CMDA tried to argue that the writing requirement was satisfied by Acho’s letter and evidence that the clients were aware of the existence of the fee-splitting agreement with Eng & Woods.

But on Friday the 8th Circuit nixed this argument.

“To be sure, the evidence demonstrates that Richina was aware of the fee-splitting arrangement, and while we might agree with CMDA that the underlying purpose of Rule 4-1.5(e) — to advise the client that each lawyer will assume joint responsibility for the case and ensure the client does not object — was satisfied here, the letter of the Rule was not,” the court said.

Because any fee-splitting agreement was unenforceable under the rule, CMDA’s counterclaims for fraud, misrepresentation and unjust enrichment failed under Missouri law.

This is not to say that the 8th Circuit was particularly pleased at how Eng & Woods acted in this matter.

“[W]e note that several of Eng & Woods’s actions give us pause,” the court said. “Eng received Acho’s December 1 letter explaining the fee-splitting agreement and discussed it with Woods, but took no action on it, even though the letter asked Eng to contact Acho at once if it was ‘not an accurate recital of our understanding.’

“Eng and Acho allegedly had a number of telephone conversations in which Eng reiterated the purported fee-splitting agreement and assured Acho that he had done enough to earn his share of the fee. After the case settled, Eng told Richina that Acho would be receiving one-third of the fee paid to Eng & Woods. And even though they now argue that any payment to CMDA would violate Rule 4-1.5(e), Eng & Woods sent Acho a $18,562.50 check. ….

“We find these actions to be inconsistent with Eng & Woods’s argument that Eng never agreed to split the fee with CMDA, or that, even if an agreement did exist, it should not be enforced. Additionally, if, as Eng & Woods argues, there was never any fee-splitting agreement, then Acho effectively referred this case to Eng & Woods out of the kindness of his heart, for no fee whatsoever. This is simply not how the practice of law operates.”

But the court’s sympathy with CMDA’s plight could not change the fact that the law firm had made a fundamental mistake.

“Had CMDA examined the Missouri Rules of Professional Conduct itself, it would likely have seen that this fee-splitting agreement would not pass muster. For its part, Eng & Woods has engaged in sharp practice and is using the Rule 4-1.5(e) as a sword, forgetting that ‘the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons.’

“Nevertheless, we are bound by Rule 4-1.5(e) and Missouri caselaw interpreting it. Therefore, we hold that the alleged fee-splitting agreement between CMDA and Eng & Woods is unenforceable and that CMDA’s counterclaims fail as a matter of law,” the court said. (Eng v. Cummings, McClorey, Davis & Acho)


– Pat Murphy


The evolving landscape of workplace sex discrimination


Does a transgender employee have a constitutional right to keep her job as she “transitions” from one sex to the other?

Can one “straight” employee sue for being sexually harassed by another “straight” employee of the same sex?

Federal judges have taken stabs at answering both those questions the last couple of weeks, and you may be surprised at what they came up with.


Changing sexes in the workplace

You hate to be in Glenn Morrison’s shoes. Born a man, deep inside you believe you are a woman.

In 2005, doctors confirm your belief, diagnosing you with gender identity disorder. So you embark on the long journey of becoming female.

Thus was born Vandiver Elizabeth Glenn.

Of course, Glenn had a job. She worked as an editor for the Georgia General Assembly’s Office of Legislative Counsel.

In 2006, Glenn informed her boss Beth Yinger that she was transgender. Yinger was apparently open-minded about the matter, because for the time being there were no problems.

But the poop hit the fan on Halloween when Glenn for the first time came to work dressed as a woman.

If Glenn wanted her superiors and colleagues to take her predicament seriously, perhaps picking Halloween to declare her transgender status openly in the workplace wasn’t the best of moves.

The big boss of the Office of Legislative Counsel, Sewell Brumby, certainly wasn’t pleased. Brumby told Glenn in no uncertain terms that she wasn’t dressed appropriately and told her to leave the office.

Later, Brumby talked with Yinger about Glenn’s appearance on Halloween and learned that Glenn intended to proceed with gender transition.

The matter simmered under the surface until the fall of 2007 when Glenn informed Yinger that she was ready to proceed with gender transition full bore and would begin coming to work as a woman.

The wheels began to turn in earnest.

Once Brumby learned about Glenn’s plans, he did some legal research on whether it was lawful to terminate an employee for undergoing gender transition.

Finding a split of authority, Brumby decided to go ahead and rid the office of Glenn.

On October 16, 2007, Brumby called Glenn into his office and asked her if she was determined to become a woman.

Once Glenn confirmed her intentions, Brumby fired her.

Brumby made it plain that the termination wasn’t related to performance issues, telling Glenn that her planned gender transition was inappropriate and would be disruptive of the workplace.

So Glenn was off to federal court, suing Brumby and other Georgia legislative officials under §1983 for a violation of her constitutional right to equal protection under the law.

According to Glenn, she was being discriminated against based on sex because she didn’t conform to sex stereotypes regarding males.

Last Friday, U.S. District Judge Richard Story concluded that Brumby’s decision to terminate Glenn violated her rights under the Equal Protection Clause.

Relying on the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins recognizing claims based upon sex stereotyping, Judge Story held that “that discrimination against a transgendered individual because of their failure to conform to gender stereotypes constitutes discrimination on the basis of sex.”

Regarding the facts of Glenn’s case, the judge concluded that she established a prima facie case of discrimination by showing an inference of discriminatory intent in her termination.

He went on to decide that Brumby could not carry his burden of showing that Glenn’s termination was for a legitimate, nondiscriminatory reason.

“The record demonstrates that [Glenn’s] desire to come to work dressed as a woman did not comport with how Defendant Brumby believed a biological male should act and that served as a basis for her termination. The record also indicated that Brumby was concerned about negative reactions from others, including state legislators, if he allowed [Glenn] to do so. Neither is an ‘exceedingly persuasive justification,’ and neither explanation is sufficient to survive intermediate scrutiny review,” the judge wrote. (Glenn v. Brumby)

Next week, the judge will hold a hearing to decide a remedy. Glenn seeks reinstatement and attorney fees.


Straight-on-straight harassment

Horseplay on the job leads to more lawsuits than employers care to admit.

Even so, it should give employers pause to consider that a sexual harassment case might be spawned by one straight male employee’s vulgar acts against another straight male employee.

That was confirmed late last month when U.S. District Judge Thomas Phillips gave the go ahead to a hostile environment claim asserted by Robert Reagan against the city of Knoxville, Tennessee.

Reagan claimed that as a city employee he was essentially assaulted three times by co-worker Jim Miller.

Reagan alleged that Miller kneed him in the groin on two occasions.

While those incidents were bad enough, Reagan claimed that on a third occasion Miller pinned him against a truck and simulated sexual acts on him.

In answering Reagan’s Title VII lawsuit, the city argued that he could not show that the alleged discrimination was based on sex given that both he and Miller were heterosexual.

But Judge Phillips concluded that there was sufficient evidence to proceed on Reagan’s claim that the city created a hostile work environment based on same-sex harassment.

“It may have been ‘horseplay’ as Miller contends, or it may have been sexually motivated. Viewing the facts in the light most favorable to plaintiff, the Court finds that there is a genuine issue of material fact regarding whether the harassment was ‘based on’ plaintiff’s sex,” the judge wrote. (Reagan v. City of Knoxville)

– Pat Murphy