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Monthly Archives: March 2011

Mitsubishi airbag suit gets green light

A federal judge in Washington state has decided that jury issues exist in a product liability lawsuit brought by a short-statured woman who was seriously injured when the airbags in her Mitsubishi Eclipse deployed in a low-impact collision.

“[G]enuine issues of material fact [exist] as to whether the airbag deployment parameters were reasonably safe as designed at the time that the Eclipse was manufactured,” concluded U.S. District Judge Malouf Peterson of the Eastern District of Washington.

The plaintiff in the case, Judy Morris, was injured when she rear-ended a flatbed truck while driving her 1996 Mitsubishi Eclipse GS-T 2-door hatchback. The accident occurred in Spokane on Jan. 4, 2006.

The collision itself was rather mild, with the Eclipse sustaining little or no damage. The evidence suggests that the truck was traveling between 8 to 19 mph and Morris’s vehicle was going between 24 to 35 mph at the moment of impact.

Despite the relatively low impact, the airbags in the Eclipse deployed. Morris is 5’4″ and in her sixties. These factors probably had something to do with the catastrophic nature of her injuries. The woman’s spinal cord was severed, resulting in incomplete quadriplegia and paralysis.

According to court records, Mitsubishi concedes that Morris’s injuries were the result of airbag deployment and not from the impact of the collision. A defense expert concluded that Morris’s injuries were most likely the result of the interaction between the airbag membrane and the woman’s head and neck as the airbag rapidly deployed and expanded.

What the parties do dispute is the relative velocity of the two vehicles at the moment of impact and whether Morris was braking at the time.

Morris’s lawsuit against Mitsubishi includes claims for defective manufacturing, defective design and failure to warn under the Washington Product Liability Act.

Last week, Judge Peterson addressed Mitsubishi’s motion for summary judgment and found in favor of Morris on two of her three claims.

With regard to the manufacturing defect claim, the primary point of contention was whether Mitsubishi testing established that the Eclipse airbag should not deploy in an accident that involves a change in velocity equal to or less than 12.5 mph.

Mitsubishi argued that the 12.5 mph figure on which Morris based her claim was itself based on “flawed and corrupted” data.

In this battle of the experts, the court concluded that Morris’s expert sufficiently refuted Mitsubishi’s expert for the purpose of creating “a material question of fact as to whether the airbag in Ms. Morris’s Eclipse ‘was not reasonably safe in construction or not reasonably safe because it did not conform to the manufacturer’s express warranty or to the implied warranties under [state law].’”

Likewise, the court found that Morris could proceed on her design defect claim that the airbags in her Eclipse deployed unnecessarily, too forcefully and too late.

But Mitsubishi won its summary judgment on Morris’s failure to warn claim.

Mitsubishi argued that state-law failure to warn claims like the one in this case conflict with and are thus preempted by the Federal Motor Vehicle Safety Standard 208. The warnings in the Eclipse met this standard by advising drivers and passengers “not to sit or lean unnecessarily close to the airbag.”

Judge Peterson concluded that “FMVSS 208 preempts Ms. Morris’s failure to warn claim to the extent that Ms. Morris asserts that other warnings such as those relating specifically to drivers of short stature should have been placed in the Eclipse.”

With respect to warnings that do not conflict with FMVSS 208, the court concluded that dismissal was warranted because Morris “does not offer a developed theory or evidence, supporting her failure to warn claim, by offering a scenario in which a different warning than those included on the visor or in the owner’s manual would have prevented her injuries….

“Nor does she present other evidence supporting that the absence of any particular information proximately caused her injuries in the collision. Plaintiff has not met her burden of designating specific facts showing that there is a genuine issue for trial.” (Morris v. Mitsubishi)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Is pepper spray offense a ‘crime of violence’?

Generally, forays into the U.S. Sentencing Guidelines make my eyes bleed. So I tend to avoid federal sentencing cases like the plague.

But yesterday the 6th Circuit addressed an issue that even I could wrap my brain around: Is a state conviction for unlawful use of pepper spray a “crime of violence” that can be used to enhance a defendant’s gun sentence?

The court answered that question in the case of Kyle Mosley, who in 2008 pleaded guilty in Michigan federal court to being a felon in possession of a firearm.

In figuring out Mosley’s sentence, the district court treated a prior resisting arrest conviction as a crime of violence, which raised his offense level under the guidelines. Paired with his criminal history, Mosley was subject to a 77-96 month guidelines range.

The district court slapped him with the high-end sentence: 96 months.

Fortunately for Mosley, the 6th Circuit decided in 2009 that his prior state conviction for resisting arrest was not necessarily a crime of violence under the guidelines and sent his case back for resentencing.

The district court, however, appeared determined to hand down that 96-month prison stretch.

The lower court decided, in the alternative, that Mosley’s 2004 pepper-spray conviction in Michigan was a crime of violence and once again sentenced him to 96 months.

Back before the 6th Circuit, Mosley argued that his pepper-spray conviction could not be considered a violent offense under the guidelines.

The Michigan pepper-spray law provides that “a person who uses a self-defense spray or foam device to eject, release, or emit orthochlorobenzalmalononitrile or oleoresin capsicum at another person is guilty of a misdemeanor, punishable by imprisonment for not more than 2 years” except “under circumstances that would justify the person’s use of physical force.”

According to Mosley, the offense does not involve conduct that presents a serious risk of physical injury and, therefore, should not be deemed a crime of violence under the guidelines.

The 6th Circuit swatted down this argument without breaking  a sweat.

“Pepper spray not only has the potential to cause physical injury, but that is the very point of the device: It is ‘designed to cause intense pain,’” the court explained “Why would something that operates effectively as a self-defense shield by ‘caus[ing] extreme pain and prolonged impairment of bodily organs’ not amount to a crime of violence when used as a sword in the exact same way?” (U.S. v. Mosley)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Pot-smoking man mauled by bear, gets comp

This kind of stuff never happened on The Yogi Bear Show.

With Yogi, it was all clean fun. Yogi, with his little green hat and tie, outwitting Ranger Smith with zany plots to nab campers’ pic-a-nic baskets.

No blood and certainly no recreational drug use.

Unfortunately, blood and drugs figured prominently in Brock Hopkins’ close-up-and-personal encounter with a grizzly bear named Red at the Great Bear Adventures.

Great Bear Adventures is located near West Glacier, Montana. The park is owned by Russell Kilpatrick and is one of those places that purports to offer visitors a chance to see wildlife — in this case grizzly bears — in their natural habitat.

Of course, it takes a little imagination what with the visitors driving through in air-conditioned SUVs and the bears surrounded by multiple layers of electrified fence, but you’re supposed to get the drift.

Anyhow, Kilpatrick and Hopkins were friends, and as a friend Hopkins lent a hand around the park. Whether there was a regular employment relationship between Kilpatrick and Hopkins is kind of sketchy.

Kilpatrick insisted that any money he gave Hopkins was out of the goodness of his heart — apparently Hopkins was down on his luck — and Hopkins presumably helped Kilpatrick because he was a good pal.

At least that’s Kilpatrick’s take on their relationship.

On November 2, 2007, Kilpatrick asked Hopkins to come over to the park. On the way, Hopkins smoked marijuana. Yes, smoking pot is allegedly one of Hopkins’ favorite forms of recreation.

At the park that morning, Kilpatrick had Hopkins do some work on the front gate. When Hopkins finished with the gate, he found Kilpatrick taking a nap.

Demonstrating rare initiative for one who indulges in marijuana, Hopkins decided on his own to feed the bears.

Now, Kilpatrick swears that he told Hopkins not to feed the bears, explaining later that he was tapering their food as they prepared for hibernation.

On the other hand, Hopkins swears that Kilpatrick never told him not to feed the bears.

In any event, it turned out to be a bad idea when Hopkins mixed the bears’ food and proceeded to enter their pen.

As Hopkins began to place food out, Red, the largest bear, attacked. Who knows what triggered the attack. Perhaps Red has a zero-tolerance policy when it comes to illegal drug use. But attack Red did.

Red knocked Hopkins to the ground and unceremoniously sat on him. With the dinner table set, Red started to leisurely munch on Hopkins’ leg and choice hind quarters.

Hopkins was in dire straits, but to his rescue came another bear, Brodie.

Brodie apparently has a more tolerant view of the drug culture and wasn’t about to hold it against Hopkins that he occasionally smoked weed.

Instead, Brodie set upon Red, biting the big bear from behind. Red moved off Hopkins momentarily and the man saw his chance. Before you could say, “roll me a joint,” Hopkins was under the electrified fence and out of the pen.

But Hopkins was seriously hurt. When Kilpatrick found him later, Hopkins needed to be taken to the hospital by helicopter.

Then came Hopkins’ workers’ compensation claim.

Kilpatrick was uninsured and he disputed that Hopkins was an “employee” eligible for benefits under Montana’s uninsured employers’ fund.

But a state administrative judge found to the contrary and last week the Montana Supreme Court affirmed a $65,000 award in favor of Hopkins.

The court quickly dispensed with Kilpatrick’s challenge to Hopkins’ employment status.

“Kilpatrick’s assertion that Hopkins was a volunteer is without support. As the [workers' compensation judge] succinctly stated, ‘[t]here is a term of art used to describe the regular exchange of money for favors — it is called ‘employment,’” the court said.

As to Kilpatrick’s contention that Hopkins shouldn’t have been feeding the bears in the first place, the court deferred to the workers’ compensation judge’s factual finding that Hopkins hadn’t received express instructions not to feed the bears.

The court then agreed with the judge who had found that Hopkins was acting in the course and scope of his employment at the time of the bear attack.

The administrative judge had struck a humorous chord, stating that “Kilpatrick benefitted from the care and feeding of the bears that Hopkins provided since presumably customers are unwilling to pay cash to see dead and emaciated bears.”

Again, the state supreme court deferred to the workers’ compensation judge’s colorful conclusions in deciding that Hopkins’ marijuana use before the bear attack did not operate as a bar to an award of benefits.

The court said that the workers’ compensation judge “aptly noted, ‘Hopkins’ use of marijuana to kick off a day of working around grizzly bears was ill-advised to say the least and mind-bogglingly stupid to say the most.’ However, the [judge] further noted that grizzlies are ‘equal opportunity maulers,’ without regard to marijuana consumption.” (Hopkins v. Uninsured Employers’ Fund)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

‘Menace to clients’ slammed by court

When a federal appeals court steps up and calls you a “menace” to your clients, perhaps it’s a good time to step back and reexamine your choice of professions. 

Last week, Chief Judge Frank Easterbrook of the 7th Circuit read out the riot act to an Illinois lawyer for his “calamitous” handling of a civil rights case involving three clients.

Illinois attorney Michael J. Greco represented three black employees who sued the Cook County prison system for race discrimination.

A federal judge dismissed their Title VII claims without prejudice for being improperly joined with the claims of nine other Cook County employees.

The 7th Circuit explained last Tuesday that the dismissal was a mistake and that the individual claims of Greco’s clients should simply have been severed and assigned separate docket numbers.

Unfortunately, the court also explained that Greco had “bungled” his clients’ cases away by failing to appeal the dismissal in the first instance or, better yet, refiling their claims within the statute of limitations.

When Greco did refile, the lower courts decided the lawsuits were untimely and the 7th Circuit affirmed those dismissals.

But while the 7th Circuit’s decision ended the matter for Greco’s clients, Judge Easterbrook was far from done with the lawyer himself.

Apart from expressing dismay for how Greco had served his clients in the lower court, Easterbrook cited the lawyer for his “sloppy” performance before the 7th Circuit.

According to the court’s opinion, Greco initially missed the deadline for filing a docketing statement, then frustrated court officials in their efforts to have the cases of his clients consolidated for appeal.

Greco’s “procedural gaffes” resulted in four show cause orders and the striking of one of his client’s briefs.

Topping things off, the court belatedly realized that Greco is not a member of 7th Circuit’s bar.

Easterbrook was fed up, so he and his colleagues fined Greco $5,000 and issued a reprimand. Pouring salt into the wound, the court ordered Greco to send copies of its opinion to his clients, unequivocally alerting them to their potential malpractice claims against the lawyer.

“The events recounted in this opinion show that Greco is a menace to his clients and a scofflaw with respect to appellate procedure. The district court may wish to consider whether he should remain a member of its bar. Would-be clients should consider how Greco has treated [his clients in this case],” the court concluded. (Lee v. Cook County

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Driver ordered to ‘prep’ pickup for dog sniff

Yesterday, the Illinois Supreme Court answered the novel question of whether police crossed some constitutional marker by simply directing a stopped driver to roll up her windows and turn her blowers on high.

The unfortunate test dummy for this legal experiment was Cheryl Bartelt.

According to court records, an informant tipped off the Quincy Police Department that Bartelt was a methamphetamine user.

To find out if this was true, Officer Mike Tyler pulled Bartelt over on the evening of July 29, 2006. While Officer Tyler stopped Bartelt because of some flimsy parking violation, his real purpose was to subject Bartelt’s pickup truck to a canine sniff.

Within minutes, Officer Darin Kent arrived at the scene with Max, the drug-detection dog.

Here is where it gets interesting.

Before letting Max do his thing, the police instructed Bartelt to roll up her windows and turn up the fan for her pickup’s ventilation system. Apparently, this is a standard set-up procedure taught by the Illinois State Police for canine sniffs.

Of course, what this does is force the air inside the vehicle out through the seams, where dogs are trained to sniff.

Sure enough, after Bartelt complied with the officers’ directions, Max alerted to both doors of the pickup.

The ensuing search of the truck and Bartelt’s purse turned up a digital scale with white powder residue, several burnt pieces of tinfoil, and a pen casing with a burnt end and powder on the inside.

So Bartelt’s lawyers were faced with the familiar task of suppressing this evidence in order to avoid having the woman convicted for possession of methamphetamine.

The Illinois courts focused like a laser beam on the lawfulness of the set-up procedure used for the canine sniff of Bartelt’s truck.

The case presented a legitimate issue of first impression. The Illinois courts and the parties were unable to dig up any cases from other states addressing whether police violate a reasonable expectation of privacy by ordering a driver to “set up” for a dog sniff.

Plying such uncharted waters, the trial judge in Bartelt’s case granted her motion to suppress.

An Illinois appeals court reversed, plopping the case into the lap of the state supreme court.

Thursday, the Illinois Supremes decided that there was no Fourth Amendment violation.

The state high court concluded that Bartelt’s case fell within the broad brush strokes of the U.S. Supreme Court’s decision in Illinois v. Caballes, which gave the thumbs up to exterior dog sniffs, generally.

The state court explained that “[e]ven though the officers ordered [Bartelt] to roll up her windows and turn the blowers on high before they conducted the dog sniff, any intrusion on her ‘privacy expectations does not rise to the level of a constitutionally cognizable infringement.’ The dog sniff revealed ‘no information other than the location of a substance that no individual has any right to possess.’ …

“Accordingly, under Illinois v. Caballes, the dog sniff in the present case was not a search subject to the Fourth Amendment because it did not ‘compromise any legitimate interest in privacy.’” (Illinois v. Bartelt

Of note, the court did find some support for its conclusion in a 1981 decision from the 5th Circuit, United States v. Viera. (644 F.2d 509).

In Viera, the federal court of appeals upheld the dog sniff of a defendant’s suitcases that DEA agents had “prepped” by lightly squeezing.

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Is death caused by sex game an ‘accident’?

Let’s hope a western New York man’s last few moments on earth were worth it.

That’s because the odds are his widow will be left out in the cold following his final foray into autoerotic stimulation.

Paul A. Martin must have had a fascination with electricity from an early age. After all, he chose electrical engineering as his profession, working for MKS Instruments in Rochester.

But his fascination with electric power also had a darker side, one which ultimately led to his death.

Paul was 38 years old when his wife, Amanda, found his body lying in the basement of their home on the morning of Dec. 13, 2008. According to all the evidence, Paul had electrocuted himself with a home-made wire device that had a bare “loop” made to go around his scrotum.

A forensic psychiatrist later hired by Amanda to provide expert testimony concluded that Paul used electrical stimulation to produce sexual excitement and orgasm. The psychiatrist also opined that Paul had been engaged in autoerotic electrocution for at least two years before he died.

Of course, Paul didn’t intend to kill himself. It was an accident.

Accordingly, Amanda filed a claim for accidental death benefits under a policy issued by Hartford Life and Accident Insurance to Paul’s employer, MKS Instruments.

At first, it looked as though Hartford was going to pay Amanda the $162,000 benefit for what looked like a simple accidental electrocution in a home work area.

But then the reports from the Monroe County Sheriff’s Department and Medical Examiner began to roll in, revealing the specific circumstances of Paul’s death.

With the official reports in hand, Hartford concluded that Paul died from a self-inflicted injury related to autoerotic stimulation and denied Amanda’s claim.

Amanda sued under ERISA, contending that Paul’s death was obviously an “accident” within the meaning of the policy because the man was an electrical engineer who would have believed that he could avoid injury.

Last week, U.S. District Judge Charles Siragusa granted Hartford’s motion for summary judgment in Amanda’s ERISA lawsuit, concluding that the policy exclusion for intentional self-inflicted injury barred her claim.

The judge explained:

[T]he human body can be injured with as little as two-tenths of an ampere of current, because it can make the heart fibrillate. It is common knowledge that household electrical circuits typically have circuit breakers or fuses that will allow up to fifteen amperes of current to pass before they cut off the flow. …

If, as [Amanda] Martin’s expert states, [Paul] was practicing sexual masochism by giving himself an electric shock with household current, and died during the process of shocking himself, then Hartford’s conclusion that the exclusion applies was not an arbitrary and capricious decision.

(Martin v. Hartford Life and Accident Insurance)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Police face liability in shooting of knife-wielding suspect

Rarely will police face liability for shooting a man who approached them with a knife in his hand.

But leave it to the oft-criticized 9th Circuit to follow a tortuous path in order to revive a state wrongful death lawsuit against San Diego County Sheriff’s Deputies ensnared in what might fairly be characterized as a “suicide by cop.”

The basic facts in the case are not in dispute. Shortly after 9:00 p.m. on Sept. 17, 2006, Deputies Mike King and Sue Geer shot and killed Shane Hayes in a home he lived in with his girlfriend, Geri Neill. 

The deputies were called to the scene by a neighbor who reported hearing screaming coming from the house. 

Neill met Deputy King at the front door and explained that she and Hayes had been arguing about his attempting to commit suicide. Neill told the deputy that there had been no physical violence and that she was primarily concerned about Hayes harming himself. 

About four months earlier, law enforcement had placed Hayes in protective custody after he attempted to commit suicide with a knife. On the night of the shooting, the deputies at the scene were unaware of this fact. The deputies also failed to note that the domestic disturbance report they were responding to indicated that Hayes was intoxicated. 

Deputy Geer arrived as King spoke with Hayes’ girlfriend at the front door. Concerned that Hayes might harm himself, the two deputies decided to enter the house to check on the man’s welfare.

The deputies entered the home with their guns holstered with King in the lead. Because the house was dimly lit, King advanced using his flashlight.

Once in the living room, the deputies saw Hayes in the adjacent kitchen area, about eight feet away.

Hayes had his right hand behind his back, so King ordered the man to “show your hands.”

According to King, as Hayes raised his hands, he also took two steps forward. At that moment, the deputies saw that Hayes held a large knife in his right hand. 

Perceiving the threat, King immediately drew his gun and fired two shots. Geer drew her gun at the same time and fired two additional rounds at Hayes. The man died from his wounds.

Hayes’ minor daughter, Chelsey Hayes, filed three basic claims against the San Diego County Sheriff’s Department and the two deputies. Each of the claims was dismissed on summary judgment by the district court.

The messy procedural posture of the case requires some explanation.

The first two claims were §1983 claims, one for excessive force in violations of her deceased father’s Fourth Amendment rights, the other for a violation of her Fourteenth Amendment liberty interest in the “companionship and society” of her father.

A third claim was a negligent wrongful death cause of action under California law.

Yesterday’s decision by the 9th Circuit addressed each of these claims in turn.

With respect to the excessive force claim, the court remanded the matter for the district court to decide whether Chelsey Hayes has standing under state law to assert survival claims based on alleged violations of her father’s Fourth Amendment rights. The remand order also encompassed her related Monell claims of municipal liability under §1983

The 9th Circuit further determined that Chelsey Hayes couldn’t proceed with her substantive due process claim. The court reasoned that she couldn’t establish liability under a “purpose-to-harm” standard given the absence of any evidence that the deputies fired their weapons for any purpose other than self-defense.

That left the state wrongful death claim, and here the news was bad for the San Diego County Sheriff’s Department and the two deputies.

Instead of upholding the summary judgment in favor of the defendants, the court concluded that an issue of fact existed as to whether the deputies breached the standard of care under state law.

In particular, the court concluded that the deputies may have been negligent in opening fire without first warning Hayes that deadly force would be used if he did not stop his approach.

The deputies claimed that, given Hayes’ proximity, there wasn’t time to issue a warning, but this didn’t satisfy the 9th Circuit.

“Taken in the light most favorable to [the plaintiff], Hayes appears to have been complying with Deputy King’s order to show his hands when Hayes raised his hands and revealed the knife. …

“Although Hayes was walking towards the deputies, he was not charging them, and had not been ordered to stop. He had committed no crime and had followed all orders from the deputies at the time he was shot,” the court explained. (Hayes v. County of San Diego

It takes some chutzpah to second-guess police officers who are faced with a knife-wielding man in a small room. But that’s typical of the 9th Circuit.

Fortunately, there are some judges on the court who don’t revel in academic exercise when passing on the actions of police officers on the street.

In this case, Judge Johnnie B. Rawlinson pegged it in her dissent.

“As commonly happens in deadly force cases, the events in this case unfolded rapidly within a dimly lit, confined space. By Hayes’ girlfriend’s account, Hayes kept coming toward Deputy King with an expression on his face ‘like nothing’s working upstairs.’ …

“Faced with a steadily advancing Hayes wielding a large knife, the officer had probable cause to believe that his life was in danger,” Rawlinson wrote. 

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Teacher, school district battle over chemical sensitivity

Ever wonder about that black hole that taxpayer dollars disappear into when it comes to public education?

Well, the legal free-for-all between a teacher who suffers from chemical sensitivity and the Seattle School District provides a good example of why educating children typically trails in the list of priorities.

Denise Frisino used to be employed by Seattle School District No. 1 as a teacher at the Hamilton International Middle School.

However, Frisino began to experience respiratory symptoms in the 1999-2000 school year. Frisino complained that her problems were due to chemical toxins, dust and mold in the school environment.

At first, the district was sympathetic to Frisino’s plight, attempting several accommodations, including providing an air filter, ordering custodians to mop her classroom floor twice a week, and moving her to a different classroom.

Frisino’s problems persisted and, in April 2004, her primary care physician diagnosed Frisino with respiratory sensitivity. The doctor instructed the district that Frisino needed to be placed in a “clean environment” the next school year.

So Frisino was transferred to Nathan Hale High School. But when the teacher reported for duty that August, she was dismayed to find in her new classroom visible mold and as well as blackened and missing ceiling tiles.

The school principal allegedly offered Frisino the option of moving to a portable classroom, but the teacher declined.

So the school directly confronted the problem by hiring a private environmental firm to investigate. Both the private firm and the Seattle/King County Department of Health conducted surveys and found no active mold growth in the building.

The private firm also conducted air sampling tests and reported that the mold concentrations inside the school were lower than those found outdoors. Other tests indicated that Frisino’s classroom and adjacent classrooms were dry and would not support mold growth.

Despite this passing grade, the district took the step of “encapsulating” areas where visible mold was detected elsewhere in the building,

None of these measures — which probably cost the taxpayer a pretty penny — appeased Frisino.

The teacher requested an accommodation in the form of a move to another classroom, but wasn’t satisfied with the two options offered by the district.

On Nov. 21, Frisino suffered another bout of respiratory distress. She left work and went to the emergency room.

Frisino did not return to work, requesting remediation of environmental conditions at the school and “time off” until the remediation was completed.

So the district hired GlobalTox, an industrial hygiene and toxicology consultant.

Any taxpayer should reflexively cringe at the thought of what GlobalTox charged for its services.

GlobalTox investigated and concluded that the school was generally safe for students and only a danger to those with the severest forms of respiratory illness.

So the district embarked on a partial remediation program over winter break, with plans to complete the project over the summer by replacing mold-damaged ceiling tiles and cleaning mold-contaminated areas.

After remediating Frisino’s classroom, the district notified Frisino to return to work on Jan. 3, 2005.  She refused.

But Frisino hadn’t been idle. No, in the meantime, she had managed to file a workers’ compensation claim.

In conjunction with her claim, Frisino participated in an independent medical examination. The examining doctor diagnosed Frisino with  “multiple chemical sensitivity syndrome,” defined as a mental illness that causes a fixation on dust,  chemical exposure, or any fumes or odors in the workplace.

With this new information, the district and Frisino went back and forth over the next several months, the district proposing and Frisino rejecting various accommodations.

Ultimately, the district came to the conclusion that Frisino would never be satisfied, so it fired her.

Then came Frisino’s predictable lawsuit that the district had violated the state’s disability discrimination law by failing to provide her with a reasonable accommodation.

Taxpayers for a brief shining moment saw an end to the hemorrhaging of public funds when a state court granted the district’s motion for summary judgment.

But yesterday, the Washington Court of Appeals decided that the financial bloodletting should continue, concluding that, “Questions of material fact remain as to whether the District accommodated Frisino’s disability and, if not, whether Frisino communicated that to the District.”

The court explained that no “objective measure had been agreed to or recognized in the course of the interactive process between the parties that would permit the district to determine that the clean up effort had reached a level at which Frisino would be free from substantially limiting symptoms. Without such a standard, trial and error was appropriate and necessary.” (Frisino v. Seattle School District No. 1

Adding to the sting of this reversal for taxpayers was the court’s decision to award Frisino attorney fees.

Ah well, it’s not like the kids could use new text books.

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Partier faces homicide charge in friend’s overdose

Corey Christman faces a five-year stretch in prison because a friend died from a drug overdose.

Christman doesn’t dispute that he was the source of the methadone found in his friend’s bloodstream.

No, Christman only argues that he cannot be convicted of homicide because his friend’s overdose was due to a combination of substances, including methamphetamine and alcohol.

Last week, the Washington Court of Appeals decided that the state can satisfy the proximate cause requirement of a controlled substances homicide charge, even when the defendant provided only one of the drugs that caused death.

Christman’s journey to prison began one evening in September 2008 when he and a group of friends gathered for a party at the sand dunes near Moses Lake, Washington.

What should have been a relatively harmless gathering with beer and wine coolers shared around a bonfire had a dark underside. Sure, there was marijuana. But there was also scarier stuff like ecstasy.

According to the state’s evidence, Christman also brought nine and one-half methadone pills to the party.

Christman allegedly wanted to make a buck by selling the methadone. But his hoped-for drug deals never transpired.

Instead, Christman gave two of the methadone pills to a friend at the party, Ryan Mulder.

Later on in the evening, Mulder complained that he was not feeling well, so Christman allegedly gave Mulder another three pills.

When Mulder later asked for more, Christman directed the young man to the pocket of his shirt, which Christman had placed by the fire. The next morning, Christman noticed that the remaining four and a half methadone pills were gone from the pocket.

That morning, too, friends found Mulder in dire straits at his home. The friends called 911 and Mulder died in a hospital two days later.

A medical examiner later determined that that the cause of Mr. Mulder’s death was hypoxic encephalopathy due to the use of methadone, methamphetamine, and alcohol.

The state charged Christman with controlled substances homicide, a jury convicted him, and a judge imposed a 61-month prison sentence.

Thursday, the Washington Court of Appeals upheld Christman’s conviction, rejecting the methadone dealer’s argument that the state could not establish the “results in death” element of controlled substances homicide.

Christman had argued that the state couldn’t prove that Mulder’s death was proximately caused by the methadone he provided given evidence that other substances contributed to the fatal overdose.

But the court of appeals pointed out that “[a]though a defendant’s conduct is not a proximate cause if some other cause is a  sole or superseding cause, it can be a proximate cause if another cause is merely a concurrent cause.  The same harm can have more than one proximate cause.”

The court concluded that the state met its burden on this point based on the testimony of its medical expert. The court explained that the expert’s “opinion was that all three substances — methadone, alcohol, and methamphetamine — combined to cause death and that each one played a role. …

“Only methadone was present in a quantifiable amount in the blood sample tested by the state toxicology lab, however, and the amount of methadone present was more than enough to cause toxicity and death.  [The expert] testified that, with reasonable medical certainty, the methadone caused Mr. Mulder’s death. A jury verdict will not fail on sufficiency of evidence grounds due to evidence suggesting a concurrent or intervening cause.” (Washington v. Christman

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Plaintiff’s pigeon poop expertise wins at trial

Most people would rather avoid the first-hand experience necessary to testify with authority on the qualities of pigeon droppings. 

But laugh as you might, one New Yorker has parlayed his expertise on pigeon poop into a multi-million dollar win for himself in a personal injury case. 

Shelton Stewart slipped down a flight of stairs at the Gun Hill Station in the Bronx after getting off a New York City subway train. The accident occurred on Sept. 21, 1998. At the time, Stewart was 47. The spinal injuries that he suffered in the fall left him permanently and totally disabled. 

Stewart sued the New York City Transit Authority for negligence, alleging that the stairs had not been maintained in a reasonably safe condition. 

In particular, Stewart testified that he slipped because of pigeon droppings on the stairs. He claimed that, in the course of his daily commute, he “always” saw pigeon excrement all over the station, including the stairs, and had complained to the transit authority about the problem to no avail. 

But what set his trial apart from other slip-and-fall cases was the “expert” testimony that Stewart himself provided as to the cause of his fall. 

According to the New York Injury Cases Blog, Stewart had first-hand knowledge about the danger of pigeon poop on pavement as the result of jobs as a porter and doorman. 

The blog reports that, based on Stewart’s considerable experience in cleaning up after the ubiquitous birds, the trial judge permitted the plaintiff to testify as to color and texture differences between newly deposited and older droppings, and what the transit authority’s employees should and could have done to alleviate the danger.

Of course, the transit authority had its station cleaner rebut the plaintiff’s claims and tell the jury that the maintenance program implemented at the station was reasonable under the circumstances.

But Stewart’s own testimony proved to be more convincing.

In 2009, a Bronx jury awarded Stewart $4.7 million for pain and suffering. The jury also awarded $2.6 million for lost earnings and medical expenses, but as we shall see this latter award would not stand. The jury also apportioned 20 percent of the fault to Stewart, so his final payout is subject to a further reduction.

Earlier this month, the New York Appellate Division affirmed the jury’s liability determination in favor of the pigeon poop expert.

“There was sufficient evidence from which the jury could infer that defendant had actual knowledge that pigeons regularly left their droppings on the stairway which were regularly permitted to remain for an unreasonable period of time. The jury was therefore entitled to charge defendant with constructive knowledge of each reoccurrence of the hazardous condition,” the court said.

The court went on to explain that the “jury also reasonably credited plaintiff’s claim that he slipped on bird droppings. Notably, there was no evidence to the contrary, such as evidence that the steps had been cleaned of droppings shortly before the accident, and the jury was free to find plaintiff credible. Accordingly, there was a valid line of reasoning and permissible inferences which could lead rational people to the conclusion reached by the jury on the basis of the evidence presented at trial.” (Stewart v. New York City Transit Authority)

As indicated above, the court felt that the evidence didn’t support the jury’s award for lost earnings and medical expenses, so it reduced that award from $2.6 million to $1.36 million.

That still leaves Stewart with a gross award of over $6 million, not bad for a pigeon poop expert.

- Pat Murphy

patrick.murphy@lawyersusaonline.com

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