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Monthly Archives: August 2010

Videogame player sues over his ‘addiction’

It’s fair to say there’s a problem when a grown man spends 20,000 hours playing a videogame about warring Elves and Orcs.

Whether the problem amounts to a diagnosable psychological addiction, who knows? The medical experts say more study is needed.

One man in Hawaii knows he’s addicted and he’s out to hold the maker of a popular online videogame liable for the dislocation in his life.

And, miracle of miracles, he’s found one federal judge who agrees he just may have a case.

Craig Smallwood is 51 and lives in Ewa Beach, Hawaii. Living in Hawaii, you’d think Smallwood would find better things to do than sitting in front of a computer all day.

But Smallwood claims that in 2004 he became hooked on Lineage II, an interactive online role-playing game developed by NCSoft Corp., a South Korean firm. According to Smallwood, he became so addicted to Lineage II that from 2004 to 2009 he played the game for over 20,000 hours.

As Smallwood explained it in his complaint, the game provides persistent players with a “great feelings of euphoria and satisfaction,” rendering them psychologically dependent.

Smallwood claims that his Lineage II addiction has left him unable to function independently in usual daily activities such as getting up, getting dressed, bathing and interacting with family and friends.

He further alleged that his addiction has required over $125,000 in hospitalization and treatment.

Smallwood filed a slew of claims against NCSoft, the upshot of which was that the company should have warned players of the risk of addiction.

Earlier this month, U.S. District Judge Alan Kay decided that Smallwood’s allegations were sufficient to proceed on claims of negligence and negligent infliction of emotional distress.

“Plaintiff alleges that ‘defendants acted with negligence [or gross negligence] in designing, developing, manufacturing, inspecting, testing, marketing, advertising, promoting, selling, distributing, maintaining, revising, servicing, administrating, and overseeing Lineage II.’ …

“In light of Plaintiff’s allegations, the Court finds that Plaintiff has stated a claim for both negligence and gross negligence,” the court said. (Smallwood v. NCSoft)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Distracted driver faces felony charge

Cherish Carlin’s eyes left the road for a mere two seconds. That’s how long it took to check her car’s GPS device as she searched for a spot to buy lunch.

But that momentary distraction might be enough to send the 20-year-old woman to prison for up to 15 years.

Carlin is in trouble because she ran down Professor Bradford Greene outside Dummerston, Vermont, in the early afternoon of April 18, 2009.

Professor Greene was riding his bike on the shoulder of Route 5 when Carlin’s vehicle approached from behind at between forty and fifty miles per hour.

Another driver said he saw Carlin’s car swerve sharply into the shoulder of the road and hit Professor Greene. According to the witness, Carlin’s car left the travel lane for approximately one or two seconds before hitting the cyclist.

At the scene, Carlin explained to police that she was trying to find a place to eat and looked down at her GPS device.  When she looked up, she saw Professor Greene directly in front of her and couldn’t avoid hitting him.

Greene sustained life-threatening injuries and needed to be airlifted to Baystate Medical Center. The professor is currently recovering from severe head, chest and rib injuries that necessitated 13 blood transfusions in the days following the accident.

Carlin was charged with grossly negligent operation of a vehicle. Under Vermont law, a violation that involves bodily injury can mean up to 15 years in prison.

A state judge concluded that Carlin’s looking down at the GPS unit was a momentary distraction that didn’t amount to gross negligence, so the charge was dismissed.

But last week the Vermont Supreme Court reinstated the felony charge, concluding that there was sufficient evidence of gross negligence for the case to go to a jury.

“Although this is a close case, the State presented more evidence in support of the gross negligence charge than defendant’s two seconds of inattention.  Defendant here was driving on a straight stretch of road in which the bicyclist would have been clearly visible prior to the accident. Indeed, the driver directly behind defendant’s vehicle testified that he observed the bicyclist well before the accident.

“The essential question becomes whether defendant’s decision to take her eyes off the road at a time when the risk of danger was heightened because of the presence of a bicyclist amounted to ‘a gross deviation from the care that a reasonable person would have exercised in that situation,’” the court said. (Vermont v. Carlin)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Doctor’s fatal dose triggers ERISA suit

A well-meaning doctor gives a pain-wracked patient a fatal dose of a muscle relaxant.

Under medical protocols, the drug never should have been administered to someone in the patient’s condition. On that basis, a state medical examiner rules the death is a “homicide.”

Is the patient’s widow entitled to benefits under an ERISA accident policy that extends coverage to fatalities arising from acts intended to cause death?

A federal judge in West Virginia last week answered that question in the negative in a case which brings into stark focus some of the thorny legal issues that can arise from end-of-life care.

 

Goodbye Larry

The case explored the death of Larry Cook in the early morning hours of Jan. 4, 2007, at CAMC Teays Valley Hospital.

Larry had been hospitalized for emergency treatment of gastrointestinal bleeding. The odds were that Larry wouldn’t leave the hospital alive.

You see, Larry was in the final stages of liver failure and had been unable to get a liver transplant. Marking the dire nature of Larry’s condition, his attending physician, Dr. Sean DiCristofaro, had changed the patient’s status to “Do Not Resuscitate” and “Do Not Intubate” after consulting with the man’s family.

According to medical records, Larry’s final hours were not peaceful. Between 3:00 and 5:00 am, Larry started gasping for breath, clinically described as “agonal breathing.”

Doctor DiCristofaro said that Larry’s agonal breathing was the most severe in his experience.

Naturally, Larry’s wife Stephanie and his other family members were distraught, but Dr. DiCristofaro had few good options for relieving the situation. Larry had already been given all the standard pain medications.

In the pressure of the moment, Dr. DiCristofaro proposed administering 10 mg of Norcuron, a muscle relaxer which causes paralysis.

Although some in the medical community argue that Norcuron should be accepted as a palliative for end-of-life care, the drug is deemed to have no intrinsic analgesic or sedating effects and has not been generally approved for such uses.

After consulting with Stephanie, Dr. DiCristofaro administered the Norcuron intravenously. Shortly thereafter Larry went into respiratory arrest. He was pronounced dead at 5:38 am.

 

‘Homicide’ in the hospital?

Larry’s troubles were over but Dr. DiCristofaro’s were just beginning.

The good doctor said that Larry died of natural causes on his death certificate, but West Virginia’s medical examiner looked into the matter and declared the death a homicide based on the improper administration of Norcuron.

The state’s medical board was sympathetic to Dr. DiCristofaro’s plight, but that body too found that there is “no general acceptance within the field of medicine for the use of such agents for palliation of pain and suffering, and the use of such agents during ‘end of life care’ does not meet the prevailing standards of medical and ethical care.”

Accordingly, the board slapped Dr. DiCristofaro with a six-month suspension.

 

ERISA claim

Meanwhile, Larry’s wife Stephanie thought she had a viable claim for $300,000 under an accidental death policy issued by Hartford through her employer.

Hartford denied the claim because its policy excludes coverage for deaths that are the result of medical or surgical treatment of a sickness or disease.

Stephanie sued under ERISA, arguing that the medical treatment exclusion was trumped by a plan term authorizing coverage when death is the result of an act intended to cause death.

According to Stephanie, the state medical examiner’s declaration that her husband’s death was a homicide conclusively established that Dr. DiCristofaro’s administration of Norcuron was an intentional act under the terms of Hartford’s plan.

Hartford won that argument earlier this month when U.S. District Judge Robert Chambers granted the insurer summary judgment.

The judge concluded that the state’s homicide ruling was not dispositive and that Hartford acted within its discretion by giving more credence to the detailed findings of the state’s medical board in the disciplinary proceeding against Dr. DiCristofaro.

The judge explained that while the state medical board “recognized that Norcuron had hastened Mr. Cook’s death, and that Dr. DiCristofaro had inappropriately administered the drug, it was reasonable to interpret the [board's] report as concluding that the drug was given by Dr. DiCristofaro as part of Mr. Cook’s treatment for his illness. …

“The decision that the death resulted from a sickness or disease, or medical treatment for a sickness of disease, was thus supported by evidence and not an abuse of discretion.” (Cook v. Hartford Life and Accident Insurance Company)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Filthy toilet may be the ‘cause’ of slip and fall

Few things are more unpleasant than being faced with a bathroom at work or on the road that is unusable because it’s an unsanitary mess.

But can the owner of an unclean restroom be liable if someone is injured on the way to finding an alternative spot to answer nature’s call?

At least one court thinks that the causal connection between the defect and the injury is not too tenuous to impose liability.

Earlier this month, the 6th Circuit concluded that an employer could be liable under the Federal Employers’ Liability Act for injuries suffered by a railroad worker who slipped and fell on his way to relieve himself alongside the tracks.

James Szekeres was a brakeman for a CSX locomotive operating between Cleveland and Valley View, Ohio. On Jan. 4, 2006, Szekeres needed to go to the bathroom, but found the toilet on the locomotive to be too dirty to use.

At a muddy switching station, Szekeres left the locomotive and proceeded up an embankment to find a private spot to relieve himself.

On the way up the embankment, Szekeres slipped and wrenched his knee.

The 6th Circuit, reversing a district court, concluded that there was a sufficient causal connection between the brakeman’s injuries and the dirty bathroom on the locomotive for him to proceed on his claim for damages under FELA.

“Szekeres testified that he slipped from accumulated mud on his boots from both the area behind the switch and from climbing the embankment, so there is a direct tie between his inability to use the onboard toilet facility and his accident,” the court said. (Szekeres v. CSX Transportation)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

9th Circuit strikes down Stolen Valor Act

Leave it to the 9th Circuit to issue a decision that ties your guts up in knots.

Yesterday, the court actually concluded that a California politician could serially lie about receiving the Congressional Medal of Honor without fear of criminal prosecution.

Last month, this corner wrote about a Colorado judge who stuck it in the eye of U.S. war vets by deciding that the Stolen Valor Act violated the First Amendment.

Tuesday’s decision from the 9th Circuit addressed the prosecution of Xavier Alvarez, a member of the Valley Water District Board of Directors who has a penchant for falsely proclaiming himself a war hero.

According to the court, Alvarez once told a local citizen that he won the Medal of Honor for rescuing the American Ambassador during the Iranian hostage crisis. Spinning the yarn further, Alvarez said that he had been shot in the back as he returned to the embassy to save the American flag.

As outrageous as those lies were, what placed him in the crosshairs of federal prosecutors was his conduct at a water district board meeting on July 23, 2007.

The newly elected Director Alvarez introduced himself, stating “I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.”

Needless to say, none of it was true and federal prosecutors who obtained a recording of the meeting charged Alvarez with violating the Stolen Valor Act, apparently the first such prosecution in the country.

The Act provides that “[w]hoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item shall be fined under this title, imprisoned not more than six months, or both.”

Alvarez pleaded guilty to the charge, reserving his right to appeal his conviction on constitutional grounds.

The 9th Circuit in all its wisdom decided that the Act was fatally flawed under the First Amendment.

Judge Milan D. Smith wrote the majority opinion. Smith found the statute problematic because, in his view, allowing it to stand would be “setting a precedent whereby the government may proscribe speech solely because it is a lie.”

Taking that tack, he and his colleague in the majority held that “regulations of false factual speech must, like other content-based speech restrictions, be subjected to strict scrutiny unless the statute is narrowly crafted to target the type of false factual speech previously held proscribable because it is not protected by the First Amendment.”

Strict scrutiny applied here, Smith wrote, because “the speech proscribed by the Act is not sufficiently confined to fit among the narrow categories of false speech previously held to be beyond the First Amendment’s protective sweep.”

Of course, strict scrutiny typically spells the death knell for any governmental action and so it was in this case for the Stolen Valor Act.

Predictably, the court concluded that the Act was not narrowly drawn to achieve a compelling governmental interest. (U.S. v. Alvarez)

The result had Judge Jay Bybee fuming.

In his dissent, Bybee scolded the majority for ignoring the Supreme Court’s consistent pronouncements that false statements generally fall outside First Amendment protection.

“[T]he majority has misread the cases and, in the process, turned the exceptions into the rule and the rule into an exception,” Bybee said.

The judge explained that the “the better interpretation of the Supreme Court’s cases and those of our court is that false statements of fact — as a general category — fall outside of First Amendment protection except in certain contexts where such protection is necessary ‘to protect speech that matters.’

“If a false statement does not fall within one of these exceptions, the general rule applies. And even in the exceptional contexts, a false statement that is neither satirical nor theatrical is unprotected if it is made with knowledge or reckless disregard of falsity.”

Bybee took issue with the majority’s conclusion that “bona fide harm” must be an element of a Stolen Valor Act violation for it to pass constitutional muster.

“The likelihood of a ‘bona fide harm’ has nothing to do with whether a category of speech loses First Amendment protection,” Bybee said.

The judge observed that “even if the First Amendment demanded some proof of harm, the majority has supplied no reason to question Congress’s determination that ‘[f]raudulent claims surrounding the receipt of … [military] decorations and medals awarded by the President or the Armed Forces of the United States damage the reputation and meaning of such decorations and medals.’”

Well, the outlines of the basic arguments concerning the constitutionality of the Stolen Valor Act have been drawn.

If the en banc 9th Circuit doesn’t see fit to overturn this panel’s decision, the bet here is that the Supreme Court in its current makeup will give U.S. v. Alvarez  a short shelf life.

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Geronimo v. Obama

With his poll numbers cratering and troubles mounting, at least President Obama needn’t be concerned with the whereabouts of Geronimo’s bones.

Yes, a federal judge delivered that small favor to the White House when he ruled against the famed Apache warrior’s descendants in a lawsuit that also happened to involve that favorite target of conspiracy theorists: the Yale Order of Skull and Bones.

This stuff I can’t make up.

The story goes that sometime around the end of World War One a group of Yale students came up with the whacky idea of stealing the remains of Geronimo.

From the old Saturday afternoon Westerns, we all learned that the Apache leader ran circles around the U.S. Cavalry in the Southwest for nearly three decades.

Geronimo was finally forced to surrender in Arizona in 1886. He died in 1909, after becoming something of a worldwide celebrity, and was buried in Fort Sill, Oklahoma.

Geronimo’s descendants now claim that members of Yale’s Skull and Bones snuck into Fort Sill in 1918 and grabbed Geronimo’s, ahem, skull and bones.

But what was their recourse?

The Geronimo clan thought they had the perfect tool for redress in the form of the Native American Graves Protection and Repatriation Act (NAGPRA).

Enacted by Congress in 1990, NAGPRA essentially provides the statutory framework for the recovery of stolen Native American artifacts.

In 2009, twenty descendants of Geronimo sued the federal government, from President Obama on down, invoking the Act to have Geronimo’s remains returned and collect money damages.

They sued Skull and Bones, too, but apparently the possibility of tapping into the U.S. Treasury was apparently too hard to resist.

Late last month, U.S. District Judge Richard Roberts delivered some bad news to the Geronimo clan.

Protecting the U.S. Taxpayer, Judge Roberts concluded that the Geronimo descendants’ claims against the federal government were foreclosed because they could not show an express waiver of sovereign immunity.

Moreover, the judge concluded that the Geronimo clan could not state a claim under NAGPRA in any event because their complaint only alleged wrongful conduct that predated the Act.

“The only alleged discovery or wrongful removal described by the complaint occurred in or around 1918. Because the complaint does not set forth facts supporting an actionable claim, it will be dismissed as to the non-federal defendants as well,” the judge said. (Geronimo v. Obama)

So that let Skull and Bones off the hook, at least as far as NAGPRA liability is concerned.

This result might seem to be a low blow to the descendants of Geronimo, but it still sticks in my craw that the federal government was a target of this lawsuit in the first place.

The plaintiffs’ beef is with Skull and Bones. It seems rather unseemly to make a cash grab of federal tax dollars if the real aim is to place Geronimo’s remains in an appropriate resting place.

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Unemployment blues

  

The newest employment figures are not good.

This morning’s numbers from the federal government show that 9.5 percent of us are unemployed, unchanged from last month’s bleak figure.

Although the unemployment rate remained unchanged, the nation lost 131,000 jobs overall in July.

So someone who gets fired in today’s job environment is really going to need those unemployment benefits.

But recent court decisions from across the country show that employers are fighting tooth and nail to avoid paying up, using everything from slurs against President Obama to unpaid child support to show that an employee’s departure was “for cause.”

 

Voluntary quit?

Yesterday, the Oregon Supreme Court decided the case of a public school teacher who lost his job after showing part of the movie “Glengarry Glen Ross” to his senior English classes.

The Klamath County School District claimed that teacher Robert McDowell violated the district’s policy requiring preapproval by the school principal before showing students films containing profanity.

McDowell was a probationary first-year teacher, so after the district placed him on administrative leave he figured he was on his way out the door.

His union attorney agreed and advised him to resign before the district took the step of firing him.

After resigning his position, McDowell applied for unemployment benefits.

The district argued that McDowell was ineligible because he had voluntarily quit his position.

The Oregon Supreme Court decided otherwise, concluding that the teacher was entitled to unemployment compensation because he had good cause to resign when he did.

The court said “this case reduces to this: Claimant believed that being discharged would create serious problems for him in obtaining future employment. … Claimant also believed, based on his union’s attorney’s advice, that the school board would follow the personnel director’s discharge recommendation — that is, according to the advice claimant received, there was ‘absolutely no chance’ that the school district would overrule the personnel director’s recommendation. …

“Under those circumstances, would a reasonable and prudent person, of normal sensitivity and exercising ordinary common sense, believe that he faced such a grave situation that leaving work was the only reasonable course for him to take?  The only permissible answer to that question on this record is yes.” (McDowell v. Klamath County School District)

 

Obama slur

Company picnics may be a nice gesture for employee morale.

But sometimes you have to wonder if they’re worth all the broken bones and torn ligaments that you’d expect from having a bunch of out-of-shape workers trying to impress each other in a game of softball they haven’t played in 20 years.

And then there’s the trouble an employee can get in when he lets his hair down and says things better left unsaid.

Take the case of Darwin Holly.

Holly used to work for TAMKO Building Products in Missouri.

That was until May 29, 2009, when he attended a company picnic.

Holly sat down at the picnic with a slice of watermelon and said, “I’m going to sit down and eat my ‘Obama fruit.’”

Understandably, the comment offended Holly’s coworkers and TAMKO fired him for violating the company’s racial harassment policy.

The Missouri Court of Appeals last month agreed that Holly’s conduct at the picnic amounted to misconduct disqualifying him from unemployment benefits.

The court explained that Holly “signed several acknowledgements over the course of his employment that he was aware of TAMKO’s harassment policy and its restrictions. [Holly] admits that on his own volition, he made the comment that he was eating ‘Obama Fruit’ in reference to the slice of watermelon he was eating. …

“[H]ere the [Missouri Industrial] Commission did not have to determine that the phrase ‘Obama fruit’ would be racial harassment in all circumstances, but only had to determine if it constituted racial harassment in this situation and context.” (Holly v. Tamko Building Products)

 

Unpaid child support

James Lawrence is learning the hard way that not meeting your child support obligations can have consequences beyond hurting your kids and their mother.

The Minnesotan used to work as an over-the-road truck driver for Ratzlaff Motor Express.

That was until his driver’s license was suspended because his child support was not paid.

A truck driver without a license is about as useful as you-know-what on a bull.

So Ratzlaff Motors let Lawrence go on May 2, 2009.

A state unemployment judge decided that Lawrence was ineligible for unemployment benefits because he was fired for employment misconduct.

The Minnesota Court of Appeals last month agreed with that conclusion.

“We conclude that [Lawrence] engaged in intentional, negligent, or indifferent conduct that resulted in the loss of a license necessary for the performance of his job duties, and therefore engaged in employment misconduct,” the court said. (Lawrence v. Ratzlaff Motor Express)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Excluded experts sink $12M birth injury verdict

A doctor sued for malpractice should have been allowed to show that an infection in a mother’s womb was the underlying cause of her child’s permanent brain damage.

Because a judge excluded the doctor’s experts on the subject, a $12 million jury verdict is in the ash heap.

The case involved the injuries suffered by Benjamin Hayes when he was born at the Central Du Page Hospital in Illinois in 1999.

Benjamin suffers from cerebral palsy.

Aaron and Michelle Hayes are Benjamin’s parents and they blame his condition on Dr. Steven Armbrust.

Armbrust is a family practitioner who provided Michelle with prenatal care. The doctor also was in attendance when Michelle went into labor.

According to Benjamin’s parents, the boy suffered neurological injuries because Dr. Armbrust negligently delayed a cesarean section.

Doctor Armbrust had a different explanation for what happened.

According to his experts, the placenta and Michelle’s amniotic cavity were infected. The infections — identified by the experts as chorioamnionitis and funisitis — caused a “cascade of cytokines” that produced fetal inflammatory response syndrome in Benjamin, which caused his brain damage.

Doctor Armbrust’s experts were also prepared to testify that Benjamin’s body suffered from group beta strep at the time of birth, and that this in utero bacterial infection also caused brain damage.

Unfortunately for Dr. Armbrust, an Illinois trial judge excluded this evidence.

Judge Hollis Webster found that, although the defense experts relied on scientific principles and methodology that passed the “general acceptance” test of Frye v. United States, their conclusions were too speculative in light of the state of the evidence in the medical records of Benjamin’s birth.

Without this key expert testimony, the jury stepped up and socked Dr. Armbrust with a $12 million verdict.

But last week the Illinois Court of Appeals decided that Judge Webster had made a critical error in excluding Dr. Armbrust’s infection-causation experts.

The court agreed with Judge Webster that the infection-causation theory proposed by the defense experts met the Frye standard of general scientific acceptance.

Of course, Benjamin’s lawyers introduced their own experts to refute the theory that the infections in this case could be the cause of the boy’s brain damage.

But the court rejected the notion that the Frye standard requires “unanimity” of scientific thought.

The court explained that “general acceptance” under Frye “does not mean universal acceptance, and it does not require that the methodology in question be accepted by unanimity, consensus, or even a majority of experts.

“Defendants’ evidence meets the Frye standard because defendants’ experts reasonably relied on methods generally accepted in the relevant field. Moreover, the relative complexity and novelty of the subject matter are irrelevant, as Frye applies only to ‘new’ or ‘novel’ scientific methodologies.”

Getting to the nub of the matter, the court concluded that there was plenty of clinical evidence in the medical record to support the infection-causation defense formulated by Dr. Armbrust’s experts.

Doctor Armbrust’s experts opined that the presence of infection, which was indicated by Benjamin’s positive blood culture at birth, was corroborated by a variety of objective indicators.

Of note, the court cited evidence that bacteria consistent with group beta strep was found on the fetal membranes covering the placenta as well as the amniotic cavity.

There was evidence of maternal fever at the time of birth and the presence of funisitis, the inflammation of the umbilical cord, indicated an ascending infection.

The court also found that Benjamin’s condition at birth also supported the experts’ infection-causation opinions.

The medical record showed that Benjamin was in a depressed state, experiencing seizures and white blood cell ratios that indicated an inflammatory reaction. There were also clinical signs of sepsis, including pulmonary hypertension, irritability, and hypoxia.

Then there was the fact that Benjamin needed ventilation for seven days.

The court conceded that there were holes in the medical record, after all the case went to trial eight years after Benjamin was born.

“The infection-causation defense would be stronger if cultures from the placenta and the surrounding structures had been taken and had shown [group beta strep] bacteria,” the court observed.

However, the court said that “the absence of such a test and a positive result does not render the underlying theory too speculative to submit to the finder of fact.

“The defense had clinical evidence of inflammation in the placenta and the umbilical cord and of bacteria in the placenta. The weight to be given the evidence is to be decided by the jury, not the trial court.” (Northern Trust Company v. Burandt and Armbrust, LLP)

So Dr. Armbrust gets a new trial in which his experts will be allowed to present their infection-causation theories.

But the bet here is that, with each side getting a taste of courtroom victory, the case is ripe for the parties to reach a settlement and avoid a new trial altogether. 

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Dying declaration survives ‘Crawford’ challenge

Who needs law school to understand the dying declaration?

One can pretty much learn everything you need to know about this well-known exception to the hearsay rule from all those film noir classics churned out by Hollywood in the 40s and 50s.

The story line is familiar enough.

Sultry bombshell Ruby comes across the bullet-riddled body of her lover, Rick, in some seedy alley.

Rick, with his dying breath, fingers Big Louie.

Ruby tearfully recounts Rick’s last words at trial and the jury dutifully sends Big Louie off on his date with the electric chair.

It’s comforting to know that the U.S. Supreme Court’s recent dealings with the Confrontation Clause have left some tried-and-true bromides intact.

At least that’s what the Virginia Court of Appeals concluded last week in a case involving the murder of Dominic Joyner in Norfolk.

Joyner suffered his fatal wounds on October 19, 2005.

Tanisha Naar was Joyner’s boyfriend. Naar found Joyner lying in a pool of blood on her bathroom floor. Joyner had been shot once in the head and three times in the chest.

Slipping in and out of consciousness, Joyner told Naar, “Darin Satterwhite did it.”

Naar was calling for help at the time and Joyner’s statement was loud enough for a 911 operator to overhear.

Not only that, Joyner told the same thing to police detectives who arrived at the scene before he was taken to a hospital by paramedics.

Joyner died in the hospital six weeks later and Satterwhite went to trial for murder.

Satterwhite’s lawyer tried to argue that Joyner’s statements were inadmissible hearsay, pointing to the fact that the murder victim lingered in a hospital for six weeks before his death.

But the Virginia Court of Appeals concluded that Joyner’s statements fit comfortably within the dying declaration exception to the state’s hearsay rule.

“It is an immaterial fortuity that modern medicine extended Joyner’s life as long as it did, particularly given the extent of his injuries. The only issue is whether his in extremis condition at the time of his statements warranted the trial court’s conclusion that they came within the scope of the dying declaration exception,” the court said.

The big issue for the court, however, was whether the U.S. Supreme Court’s decision in Crawford v. Washington affected the admissibility of dying declarations.

In Crawford, the Court held that the admission of “testimonial” evidence violates the Confrontation Clause unless the defendant has the opportunity to cross-examine the witness.

But the state court of appeals in this case said that Crawford doesn’t apply to dying declarations and other “historic exceptions” to the hearsay ruled.

The court explained that for “all its novelty, Crawford’s holding left intact many aspects of the conventional understanding of the Confrontation Clause.

“To be sure, though Crawford did not involve dying declarations, it made a point of steering clear of the subject by acknowledging: ‘Although many dying declarations may not be testimonial, there is authority for admitting even those that clearly are. … If this exception must be accepted on historical grounds, it is sui generis.” (Satterwhite v. Virginia)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

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