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Monthly Archives: February 2011

Moviegoers cry ‘racism’

It’s easy to understand why a movie theater would be hit with a $40,000 fine for showing a Tyler Perry movie. 

As one film critic rightly asks, “Isn’t there anything better for the urban-marketed movies than this dreck?” 

But how is it that a movie theater could be charged with racism for simply telling Tyler Perry fans to turn off their cell phones?

That’s the issue that the Delaware Supreme Court had to decide earlier this month in a civil rights case brought against Carmike Cinemas.

On October 12, 2007, Carmike Cinemas in Dover, Delaware opened the Tyler Perry movie, “Why Did I Get Married?” Tyler Perry is apparently big in Dover, so David Stewart, the theater manager, scheduled the movie to be shown simultaneously in three auditoriums.

Before each showing, there was the typical message displayed on the screen reminding everybody to turn off their cell phones and to refrain from talking during the movie.

Stewart, who is Caucasian, decided to reinforce this message by making a live announcement to the same effect in the theater’s largest auditorium, which seats 130 people. Before “Why Did I Get Married?” started,  Stewart told the packed house to turn off their cell phones, stay quiet, and remain in their seats.

The audience was 90 to 95 percent African-American and certain patrons who heard Stewart’s message were offended, apparently not liking its tone.

Unfortunately for Carmike Cinemas, one of the offended members of the audience turned out to be Juana Fuentes-Bowles, the Director of the Delaware Human Relations Division. Fuentes-Bowles stood up and proclaimed that Stewart’s announcement was racist.

What’s more, Fuentes-Bowles circulated a sign-up sheet, getting the contact information of other patrons who were offended.

This resulted in a race discrimination charge filed with the Delaware Human Relations Commission. The 23 individual plaintiffs alleged they were “insulted, humiliated, and demeaned” — not by Tyler Perry’s movie — but by Stewart’s announcement.

The Commission agreed that Stewart and his employer, Carmike Cinemas, violated a state law which prohibits denying access to public accommodations on the basis of race or color.

For this violation, the Commission ordered Carmike Cinemas to pay each plaintiff $1,500 in damages, plus attorney fees and costs. The theater chain was also ordered to pay an additional $5,000 fine to the state.

Fortunately, sanity prevailed in the end with the state’s courts overturning the Commission’s decision.

This month’s decision by the Delaware Supreme Court put a final nail in the coffin of the lawsuit.

The court said that the plaintiffs “did not (and cannot) establish a prima facie case of discrimination, because the undisputed facts show that there was no disparate treatment as between the African-American and non-African-American members of the relevant audience.”

The court explained that “[a]ll audience members were treated the same way: all those who attended the Tyler Perry movie that night in the largest auditorium heard the Stewart announcement. The [plaintiffs] (who were African-American) were treated no differently from all other audience members in the auditorium, including other non-complaining African-Americans … plus Caucasian and other non-minority attendees.” (Boggerty v. Stewart

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Is infertile wife parent of husband’s child?

Since artificial insemination has been around since the 1970s, you’d think that by now states would have figured out all of the basic parentage issues that the science presents.

So it was sorta surprising that a New Jersey court this week had to decide the rather fundamental question of whether an infertile wife is the legal mother of her husband’s biological child, born to a gestational carrier.

The husband and wife in In re T.J.S. are understandably not identified by name in the court’s decision. 

The couple (“plaintiffs”) could not have a baby on their own because the wife could not carry a child to term.

To solve this common enough problem, the plaintiffs arranged for the in vitro fertilization of an ovum furnished by an anonymous donor using the sperm of the husband. To complete the process, the plaintiffs entered into a surrogacy agreement with a woman, A.F., who consented to act as the gestational carrier.

Like all parents with a child on the way, the plaintiffs had a busy time getting the kid’s bedroom ready, finding a crib with all the bells and whistles, and, of course, buying stupid toys that will never be played with but look cool to the dad nonetheless.

Apart from this fun stuff, the plaintiffs wanted to get the mundane task of having their child’s legal status squared away before his birth.

To accomplish this, the plaintiffs filed a petition for a declaration of parentage under the New Jersey Parentage Act. The plaintiffs wanted the state’s family court to issue a pre-birth order directing that their names be listed on the birth certificate as the child’s parents and preventing A.F. from being named as the mother.

The plaintiffs understandably wanted to avoid the lengthy adoption process which would have placed the legal status of the child in limbo.

The trial court granted the plaintiffs’ petition, ordering that a birth certificate be placed on file for this child to reflect the plaintiffs as parents, provided that A.F., the gestational carrier, surrender her rights to the child 72 hours after giving birth.

The child, T.D.S., was born on July 7, 2009, and A.F. fulfilled her side of the bargain by relinquishing all parental rights.

But then the state bureaucracy caught up with what was going on. The state registrar learned of the pre-birth order and moved to vacate the portion of the order directing the wife to be listed as the mother on the child’s birth certificate.

Faced with a contest by the state, the trial court reversed itself and concluded that the New Jersey Parentage Act did not authorize the wife being declared the child’s mother through a pre-birth order.

Wednesday, the New Jersey Appellate Division affirmed that decision.

Construing the state’s parentage law was fairly straightforward for the appeals court, with even the plaintiffs agreeing that the statute did not expressly authorize the pre-birth order in this case.

The court concluded that “the plain language of the Act provides for a declaration of maternity only to a biologically or gestationally-related female and requires adoption to render [the wife] the mother of T.D.S. No alternative construction is plausible and nowhere in the statutory scheme may it be implied that maternity is established simply by the contractual or shared intent of the parties.”

A thornier issue for the court was the plaintiffs’ constitutional argument that the statue denied the wife equal protection of the law. This was problematic because the state’s parentage law presumes paternity when a child is born to the wife during a marriage. 

Ultimately, though, the court concluded that there was no violation of the wife’s equal protection rights. 

“[T]he Legislature, in recognizing genetic link, birth, and adoption as acceptable means of establishing parenthood, has not preferred one spouse over the other because of gender. And where both spouses are infertile, the law treats them identically by requiring adoption as the singular means of attaining parenthood,” the court said. 

It explained that, where only one of the spouses is infertile, “an equal protection claim has not been articulated because their respective situations are not parallel and the Legislature is entitled to take these situational differences into account in defining additional means of creating parenthood.”

The court concluded: “[W]e are satisfied that the complained of disparate treatment is not grounded in gendered constructions of parenthood but in actual reproductive and biological differences, necessitating in the case of an infertile wife, the introduction of a birth mother whom the law cloaks with superior protection. …

“Given the State’s valid interest in making identification of the father easier when the child is born during the marriage for child support purposes, and its equally sound interest in requiring more than a shared intent before effectuating a legal change in the parental relationship between adult and child, the distinctions drawn by the Legislature in the Parentage Act are not without a rational basis and therefore pass constitutional muster.” (In re T.J.S.)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Fen-phen attorneys dodge $42M verdict, for now

A court early this month tossed a $42 million verdict against three disbarred Kentucky attorneys accused of wrongfully diverting funds from a $200 million diet drug settlement.

But the twists and turns are not over in this drama involving one of the worst cases of attorney fraud in U.S. history, as a key affidavit in the case has reportedly been recanted by the expert who gave it.

On Feb. 4, the Kentucky Court of Appeals in Cunningham v. Abbott vacated a $42 million verdict against Shirley Cunningham Jr., William Gallion and Melbourne Mills Jr. The court concluded that a trial was needed to determine whether fen-phen plaintiffs “were fairly and adequately compensated” from a settlement obtained on their behalf.  

The three former attorneys represented 431 Kentucky plaintiffs in the massive class action against American Home Products, the maker of fen-phen. The weight-loss drug was pulled the market in the 1990′s after numerous users suffered heart damage.

In 2001, class action maven Stanley Chesley negotiated a $200 million settlement for the Kentucky class.

The handling of that settlement has since led to the disbarment of Cunningham, Gallion and Mills, the federal convictions of Gallion and Cunningham for fraud and conspiracy, and the resignation of the state judge who oversaw the disbursement of settlement funds.

Chesley himself now faces disbarment in Kentucky as a result of his actions in the case. 

This month’s decision by the Kentucky Court of Appeals addressed a lawsuit filed by Lexington attorney Angela Ford on behalf of fen-phen plaintiffs who alleged they were cheated by Cunningham, Gallion, Mills and Chesley.

In 2004, Ford sued the fen-phen attorneys for breach of fiduciary duty and fraud.

A specially appointed Kentucky judge granted Ford’s clients a partial summary judgment and, in 2007, ordered Cunningham, Gallion and Mills to pay back $42 million plus $20 million in interest.

The court of appeals overturned that verdict based almost entirely on an affidavit filed by Kenneth R. Feinberg, an expert in mass tort litigation. In the affidavit, Feinberg expressed the opinion that the fen-phen case had been handled properly and ethically. 

The court relied on the Feinberg affidavit to conclude that jury issues existed as to whether the fen-phen attorneys had handled the settlement in a manner consistent with the professional standards for lawyers in mass tort cases. 

But since the court of appeals’ decision earlier this month, it has been reported that Feinberg recanted his affidavit in a disciplinary proceeding against Chesley last September.

According to The Louisville Courier Journal, Feinberg told a disciplinary judge that his affidavit in the fen-phen case was based solely on misinformation provided by one of the disbarred attorneys. Feinberg reportedly said he would have thrown his affidavit “in the waste basket” had he known the actual facts in the diet-drug case. 

With this news, there’s more than a fair chance that the $42 million verdict against the fen-phen attorneys will be revived.

Stay tuned. 

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Drunk driver caught walking dog

It’s not every day that a state trooper spies a guy on a four-wheeler walking a dog. Whether such a bizarre scene justifies a traffic stop under the Fourth Amendment, well …

When you’re an Alaska State Trooper patrolling in the early morning after the bars have closed, you’re probably just hoping for a few uneventful hours before the end of your shift.

At 2:30 a.m. on June 14, 2008, Trooper Lawrence Erickson certainly didn’t anticipate needing to take steps to keep a dog from being hit by a car.

As Erickson was driving down Kalifornsky Beach Road toward Soldotna, he noticed a four-wheeler coming slowly down a gravel side street with a dog tied to it.

The dog trailed the four-wheeler on a long lead and Erickson was concerned that the driver of the four-wheeler would try to cross the main road. It was dark, there was traffic, and Erickson believed an attempted crossing would be unsafe for the dog and for any motorists who might be forced to take evasive action.

Intending to warn off the driver, Erickson made a U-turn and activated his overhead lights.

The driver of the four-wheeler turned out to be Michael Weil, who was about to have his night ruined. As Erickson approached the four-wheeler, he noticed that Weil was “obviously drunk and impaired.”

The trooper’s opinion was bolstered when he saw an open beer and two unopened beers on the rear rack of the four-wheeler next to the driver’s seat. A subsequent breath test showed that Weil’s blood alcohol content was .226 percent.

So off to jail went Weil.

Weil later pleaded guilty to driving under the influence, reserving his right to appeal the denial of his motion to suppress.

According to Weil, his Fourth Amendment rights had been violated because Trooper Erickson initiated the traffic stop without reasonable suspicion of criminal activity.

Friday, the Alaska Court of Appeals decided that the traffic stop was authorized under the community caretaker doctrine.

Applying the doctrine to this case, the court agreed with the general notion that police are justified in briefly detaining a motorist to warn of a potential safety hazard, regardless of whether that hazard warrants a citation for a traffic infraction.

The court explained that “Sergeant Erickson was not obliged to wait for an accident to happen to contact Weil; the purpose of the stop was to avoid that possible outcome, and if Erickson had not immediately observed signs that Weil was intoxicated, the stop would have been brief and non-intrusive.” (Weil v. Alaska)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Race Week: Plaintiffs versus pre-injury releases

In honor of Trevor Bane’s unlikely win at the Daytona 500, let’s take a look at a couple of new cases addressing the enforceability of pre-injury releases in the motor sport context. 

I myself am more of the George Carlin persuasion: cars are for getting from here to there, not for racing.

But when you have racing vehicles, you have crashes. When you have crashes, you have injuries. And when you have injuries, of course, you have lawsuits.

 

Injured motocross rider can sue

Last Wednesday, the California Court of Appeal decided the scope of a release signed by Jerid Rosecrans when he was admitted to the Starwest Motocross Track in Perris, California.

On June 17, 2007, Rosecrans went to take some practice laps around the .6 of a mile track. Rosecrans was 38 at the time and had been riding motorcycles since he was 14.

Rosecrans zipped around the track for about 30 minutes before he took a tumble after jumping a ramp. Rosecrans wasn’t hurt by the fall, but pain and injury was close on his heels.

There were about 20 other motocross riders on the track at the time. Because Rosecrans had fallen on the down slope of a ramp, he was out of the view of the riders immediately behind him.

As Rosecrans was picking himself up, he was struck by another motorcyclist. About 20 seconds later, Rosecrans was nailed by a second motorcyclist.

Rosecrans sued the owner of the track for his injuries. The track owner pulled out the standard release which Rosecrans sued to gain admittance. The release was pretty comprehensive, appearing to cover every mishap, including those occurring during an eclipse of the moon.

The trial court agreed that the track’s release was sufficient to bar Rosecrans’ ordinary negligence claims and dismissed his lawsuit in its entirety.

But last week the California of Appeal threw a wrench in the track owner’s plan to walk away from Rosecrans’ injuries free and clear, concluding that the motocross rider had a claim for gross negligence that wasn’t covered by the release.

Rosecrans alleged that the track normally employed two “flaggers” whose job it was to signal other riders when a motorcyclist was down on the track.

According to Rosecrans, there was only one flagger on duty when he had his accident, and that flagger wasn’t in a position to prevent follow-on riders from running him down when he took his tumble.

The Court of Appeal recognized that “the owner/operator of a motocross track has a duty to provide a warning system, such as caution flaggers, to alert other riders of a fallen participant on the track.”

Moreover, the court concluded that the alleged failure of the track to post a flagger in the vicinity of Rosecrans’ accident may have amounted to gross negligence.

The court explained that Rosecrans’ evidence showed that “(1) it is standard practice in the [motocross] industry to have caution flaggers on their platforms at all times, based upon [an industry manual for caution flaggers]; (2) a caution flagger was not posted on the platform near Jerid’s fall at the time of the accidents, as stated by Jerid; and (3) the failure to post a caution flagger on the platform was an extremely egregious error, as declared by the safety expert. …

“Based upon this evidence, [Rosecrans] created a triable issue of fact as to whether the failure to provide a caution flagger constituted an extreme departure from the ordinary standard of conduct. (Rosecrans v. Dover Images)

 

The misadventures of Beer and Toot

While Rosecrans can celebrate the opportunity to place his case before a jury, Charles Beer and Darin Toot shared a different fate at the hands of a state appeals court.

On Oct. 3, 2003, Beer and Toot were severely injured at the La Crosse County Fairgrounds Speedway in Wisconsin. They were hurt when a racecar lost control and left the track, striking both Beer and Toot as they were standing within a restricted area of the infield.

Beer and Toot sued the Speedway for their injuries.

Earlier this month, the Wisconsin Court of Appeals decided that their lawsuit was barred by Speedway’s standard “Release And Waiver of Liability” form, which the two men had signed as a condition of participating in the event.

The court rejected the argument raised by Beer and Toot that the Speedway release violated public policy.

This was well-trod ground for the court, noting that it had upheld an “identical” exculpatory clause in a 1999 case, Werdehoff v. General Star Indemnity.

“In Werdehoff … [w]e addressed whether the release was ‘clear as to its application,’ and concluded that it was; whether the release ‘clearly communicate[d] the terms of the agreement to the signer,’ and concluded that it did; and whether the release ‘serve[d] two purposes,’ and concluded that it did not. Consequently, we concluded that the waiver did not violate public policy….

As we have explained, the waiver in Werdehoff is, in all pertinent respects, the same as the waiver here. Accordingly, we are bound by our conclusions in that case,” the court said. (Beer v. La Crosse County Agricultural Society)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Jets fan gets day in court over escalator malfunction

New York Jets Head Coach Rex Ryan would probably tell Thomas DiBartolomeo to just suck it up. But DiBartolomeo is going to sue instead. 

October 1, 2006, was a black day for Jets fans. Peyton Manning engineered a last-minute drive in Meadowlands Stadium to put the Indianapolis Colts ahead 31-28. 

Jets fans were left in stunned silence when a last-gasp kickoff return by the Jets came up short at the Colts’ 27 yard line after a wild flurry of laterals and fumbles

Because everybody stayed until the last second of the game, the ensuing mass exodus of 77,190 distraught Jets fans from Meadowlands Stadium had all the earmarks of a cattle stampede.

DiBartolomeo and his friend, Bob Krauss, were at the game, sitting in the stadium’s mezzanine level.

As DiBartolomeo and Krauss attempted to leave the stadium, the press of the crowd made things dicey at the various choke points, including the escalators.

Disaster struck when DiBartolomeo and Krauss were on an escalator. According to Krauss, when they were about a quarter of the way down, the packed escalator “bucked” twice and the treads “flattened.” The quick-thinking Krauss leapt the handrail onto the neighboring escalator. 

But DiBartolomeo wasn’t so fortunate, joining other Jets fans as they slid down to the bottom of the escalator into a pileup of bodies.

The escalator was maintained by Schindler Elevator.

A Schindler mechanic who investigated the accident concluded that the escalator had “skipped a tooth,” causing a “free fall” to the bottom. He believed that the malfunction was probably the result of overloading due to the press of the crowd, with each escalator step rated to bear only 300 pounds.

DiBartolomeo allegedly suffered a hip injury and hernia as a result of the accident, so he filed a negligence suit against the operator of the stadium, the New Jersey Sports and Exposition Authority (NJSEA), as well as Schindler Elevator.

The trial judge dismissed the lawsuit.

Wednesday, a New Jersey appeals court agreed that Schindler Elevator had no liability in the matter, looking to the terms of its service agreement with the NJSEA.

“Under the service agreement, NJSEA retained ownership of the escalator as well as the duty to ‘advis[e], warn[], or instruct[] passengers in the proper use of the equipment.’ Schindler never assumed such a duty. Thus, even if a factfinder were to believe [that Schindler] never warned [the NJSEA] about overloading until after plaintiff’s incident — Schindler breached no duty and cannot be liable,” the court said.

But the unlucky Jets fan had better luck in getting his lawsuit against the NJSEA reinstated.

The NJSEA argued that it was entitled to governmental immunity because DiBartolomeo injuries were the result of the Jets fan’s “misuse” of the escalator.

Naturally, this fails the “straight face” test and the court of appeals didn’t buy it, particularly in light of evidence that there had been other accidents involving the stadium’s escalators.

“In this case, providing plaintiff with all favorable evidence and inferences, he demonstrated that when the escalator was being used in a normal and foreseeable manner, it posed a danger to the general public exiting a game,” the court explained. “Plaintiff’s conduct was not unreasonable; it was consistent with the intended use of the escalator. The dangerous condition was NJSEA’s policy of operating escalators that were rated for only 300 pounds per step even though it was foreseeable and likely that greater loads would routinely be applied. (DiBartolomeo v. New Jersey Sports and Exposition Authority)

So it looks as though DiBartolomeo will have a jury hear his case against the New Jersey Sports and Exposition Authority. 

Let’s hope for DiBartolomeo’s sake that there aren’t too many Giants fans on that panel.

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Brawlers tagged with joint liability

When punches are thrown in a wild brawl, it’s tough afterwards to reconstruct with precision who did what to whom.

So the doctrine of joint liability comes in handy when trying to collect damages in a battery case involving multiple defendants.

But what is needed to show ”conscious agreement” for joint liability to come into play?

That’s the question that the Arizona Court of Appeals tried to answer last week in a personal injury case brought by Daniel Chappell and Steve Romano.

On May 8, 2005, Chappell and Romano (“the plaintiffs”) plain out had their butts kicked by a group of four men outside a hotel bar in Tempe.

According to the plaintiffs, their four assailants were William Wenholz, Michael Bean Louis Martinez and Aaron Keller.

The plaintiffs allege that Wenholz started to argue with them outside the bar. A security guard separated the plaintiffs from Wenholz and his pals before serious trouble could erupt, and the plaintiffs proceeded to the hotel’s valet station.

After Chappell retrieved his car keys, Romano alleges that one of the men from Wenholz’s group approached and “sucker punched” Chappell in the head. This blow dropped Chappell to the ground.

As Romano turned to take a swing at Chappell’s attacker, someone nailed him in the head from behind and he too found himself on the ground. Neither plaintiff remembers anything after hitting the pavement.

A bartender who witnessed the attack could only say that the plaintiffs were “pounded into the ground” by four men, punched and kicked repeatedly as they lay motionless. The bartender was later able to corroborate that Wenholz had paid the bar tab for his friends and was one of those involved in the attack.

The plaintiffs sued Wenholz, Bean, Martinez and Keller for battery, claiming that the four defendants were jointly liable for their injuries.

As is relevant here, Arizona’s joint liability statute required the plaintiffs to prove that each defendant formed a conscious agreement with his companions to commit an intentional tort.

Wenholz argued that he could not be jointly liable under the statute because there was no evidence that he and his friends formed a conscious agreement to injure the plaintiffs in advance of the fight.

The trial judge agreed and granted the defendants’ motion to dismiss on the ground that the plaintiffs could not prove which defendant inflicted what injuries.

Last Tuesday, the Arizona Court of Appeals breathed new life into the plaintiffs’ lawsuit, concluding that there was sufficient evidence to proceed under the doctrine of joint liability.

The court observed that “a ‘conscious agreement’ need not be ‘verbally expressed and may be implied from the conduct itself.’”

The court explained that, “[a]ssuming someone other than Wenholz initially punched Chappell, Wenholz cannot be held jointly liable for the injury inflicted by that blow as no evidence exists of a knowing agreement to hit Chappell when the first blow was struck. …

“But regardless of who threw the first punch at Chappell, the jury could conclude that after that, Wenholz, Bean, and their companions knowingly agreed to commit the intentional tort of battery by collectively joining in the fight in full sight of each other. There was no need for someone to yell words akin to, ‘let’s get ‘em,’ to create a conscious agreement under [the state's joint liability statute.]” (Chappell v. Wenholz)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Ford escapes $8.5M rollover verdict

An $8.5 million product liability verdict against Ford Motor Company has been tossed because of an ordinarily innocuous showing of hands requested by the trial judge as the jury was being empanelled.

The victim of this unfortunate turn of events is Latoya Duckett. 

On Oct. 11, 2003, Duckett was a backseat passenger in a 1999 Mercury Mountaineer driven by her friend, Patricia Simon. As Simon drove down Interstate 20 in Douglasville, Georgia, she allegedly swerved to avoid another vehicle that was merging into her lane.

According to Duckett’s accident-reconstruction expert, Simon’s evasive maneuver took the Mountaineer across a lane of traffic onto the rumble strips on the shoulder of the highway.

At this point, Simon turned the steering wheel sharply to her right, sending the Mountaineer into a 92-foot clockwise yaw. The Mountaineer began to roll over at a speed close to 58 miles per hour. The SUV rolled several times before finally coming to rest on its roof.

Duckett was ejected from the Mountaineer during the crash and had the misfortune of finding herself in the path of the careening Mountaineer.

The vehicle rolled over her right leg, causing severe injuries that eventually necessitated the amputation of the leg above the knee. Duckett suffered a number of other injuries in the crash, including permanent brain damage.

Duckett filed a product liability lawsuit against Ford in the Etowah County Circuit Court in Alabama. Duckett’s lawsuit included a strict liability design-defect claim. According to Duckett’s expert, the Mountaineer was too tall and narrow to sustain itself on the road.

On Oct. 15, 2009, after a four-and-half week trial, a jury found for Duckett on her design-defect claim, awarding $8.5 million in damages

Unfortunately for Duckett, the seeds for overturning her big pay day had been sown before trial even started.

And the seed-sower was none other than the trial judge, Judge William Rhea III.

Rhea apparently had it on his mind to begin with that the trial was going to be fairly long. Over Ford’s objections, Rhea addressed the pool of prospective jurors, explaining that the case could take three or four weeks.

The judge then requested a showing of hands by those prospective jurors who could serve on a case that lasted for that long.

The jury was selected from this group of “volunteers.”

Ford argued throughout trial and after the verdict that Rhea violated state law requiring random jury selection by asking for volunteers to serve on the jury. According to Ford, Rhea had improperly introduced a subjective criterion for jury service not authorized by statute.

Friday, the Alabama Supreme Court decided that Ford had it exactly right and vacated Duckett’s $8.5 million judgment.

The court acknowledged that Rhea’s request for a show of hands by members of the jury pool was, in essence, a request for volunteers.

This was improper, the court said, because nothing in the state law governing jury selection “permits juror self-selection based upon the juror’s willingness to serve over an extended period of time.” 

The court explained that “the use of volunteer jurors ‘introduces a subjective criterion for … service not authorized by the [Alabama jury statute],’ and ‘introduces a significant element of nonrandomization into the selection process that not only technically violates, but substantially departs from, [the law's] requirements.’” (Ford Motor Company v. Duckett)

So Ford gets a new trial, this time with a jury composed of people who don’t necessarily have time on their hands.

- Pat Murphy

patrick.murphy@lawyersusaonline.com

E-records fail to verify credit card debt

With consumer debt being bought and sold like hot cakes, documenting a particular obligation in court can be a tricky proposition. 

Yesterday, a debt purchaser came up empty handed in a collection action because it made the mistake of relying on business records generated by third parties. 

Commonwealth Financial Systems (CFS) is a Pennsylvania company that is in the business of debt purchasing and collection. In 2004, CFS purchased from NCOP Capital the delinquent Citibank credit card account of Ms. Larry Smith. NCOP had purchased the account from Citibank. 

CFS filed a collection action against Smith in Pennsylvania court, seeking $5,436 plus interest and attorney fees. 

In order to prove what Smith owed, CFS relied on electronic spreadsheet transmissions known in the industry as “media.” 

When NCOP purchased Smith’s credit card account from Citibank, NCOP received Smith’s account information electronically from Citibank. 

In turn, upon purchasing the Smith “debt bundle” from NCOP, CFS received the same information electronically from NCOP. 

At trial, CFS’ vice president testified that this was how the industry worked. 

Unfortunately for CFS, its vice president admitted that he was not familiar with how Citibank or NCOP created or maintained their business records and electronically transmitted the spreadsheets. 

Moreover, he did not have personal knowledge regarding the accuracy of the entries on the spreadsheets. And Smith did not appear for trial because of poor health, so she could not be cross-examined about her Citibank account. 

This state of the evidence squarely presented Pennsylvania courts with the question of whether computerized files of an original creditor are admissible as the business records of a successor debt buyer. 

The trial court answered that question in the negative and entered judgment for Smith in CFS’ collection action. 

Yesterday, the Pennsylvania Superior Court came to same conclusion and affirmed the judgment against CFS. 

“Regardless of a ‘nationwide trend’ and ‘clear federal precedent’ for allowing the introduction of business records consisting of documents generated by third parties, the Pennsylvania Supreme Court has not seen fit to adopt the rule of incorporation. We decline CFS’ invitation to do so,” the court said. (Commonwealth Financial Systems v. Smith

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Blue Valentine, or how to ruin a wedding night

I have great memories of the day I was married. It was a grand old time. The memories of my actual marriage, well, they’re not so great.

Let’s hope the reverse is true for Tony and Dannel Weaver.

The Weavers entered marital bliss on May 24, 2008, in a ceremony held in upstate New York. By 1:25 am on May 25, they were having their first no-holds-barred argument.

Given the tension and impossibly high expectations surrounding weddings, a tiff is not so unusual. But grooms are supposed to suppress their inner idiot and try not to mar the bride’s day too badly.

For a groom to wind up in jail, that’s a mortal sin.  Tony Weaver committed the mortal sin.

Tony’s trip to jail began with a scene pitiful enough to break any romantic’s heart. Tony and Dannel got into an argument in the parking lot of the hotel they were staying at in the Village of Newark.

There was Dannel, still dressed as a bride, sitting on the curb crying her eyes out.

There was Tony, still dressed as a groom, yelling and waving at Dannel.

A passing police officer stopped to check if everything was okay. The officer claimed that, as she stepped out of her patrol car, Tony walked across the street and entered a mini-mart gas station.

After Dannel declined an offer of assistance, the officer prepared to depart the scene.

According to the officer, as she was driving away, Tony came out of the mini-mart and started up on Dannel again, shouting a string of obscenities.

The officer pulled around and up to Tony, telling the groom to calm down and find someplace private for the newlyweds to continue their dispute.

The officer claimed that Tony didn’t take this advice too well, telling the officer to “shut the f- – - up” because she “wasn’t his mother” and could not tell him what to do.

Naturally, this didn’t help matters.

No, the officer couldn’t spank Tony and take his Xbox away, but she could call for back up and arrest him for disorderly conduct when he refused to quiet down.

What’s more, the officer could direct a fellow officer to shoot Tony with a Taser when he resisted arrest.

So Tony wound up in jail on his wedding night, charged with assault, resisting arrest and two counts of disorderly conduct.

A jury acquitted Tony of assault, but found him guilty of the rest of the charges. For his sentence, Tony was given one year for resisting arrest and 15 days for each of the disorderly conduct convictions.

Tony appealed, of course, arguing that his conduct did not create a public disturbance because there was no one else around in the hotel parking lot when the incident occurred.

New York law provides that a person is guilty of disorderly conduct when he engages in violent, threatening or obscene behavior “with intent to cause public inconvenience, annoyance or alarm.”

On Thursday, the state’s highest court, the New York Court of Appeals, found that there was ample evidence to support Tony’s convictions for disorderly conduct.

First, the court held that “there is no per se requirement that members of the public must be involved or react to the incident.”

Secondly, the court said that, even in the absence of testimony from onlookers, there was evidence that there were people at the mini-mart. Moreover, it could be inferred that there were guests sleeping in the hotel.

In upholding Tony’s conviction, the court explained:

[O]ver a short time period, defendant’s conduct escalated into a very vocal and aggressive confrontation. [The police officer] warned defendant on three separate occasions to cease his conduct and leave the area. Rather than heed these warnings, defendant became increasingly agitated and belligerent, repeatedly shouting obscenities at his wife and the officer. After the final warning, [the officer] determined that defendant was not going to cease creating a disturbance and effectuated his arrest with the help of [another officer]. …

On these facts, we believe that the jury had sufficient evidence to “weigh the whole incident” and logically conclude beyond a reasonable doubt that defendant recklessly created a risk of public inconvenience, annoyance or alarm within the meaning of the statute.

(New York v. Weaver)

So Tony has his stint in prison to face in addition to spending the night of his wedding in jail and ruining his bride’s day. Hopefully, these are trials that have only made the Weavers’ marriage stronger.

I wouldn’t bet on it, though.

- Pat Murphy

patrick.murphy@lawyersusaonline.com

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