When one New York woman allowed her financier husband to take some R-rated photos of her on their honeymoon, she probably never imagined that they would wind up in the hands of another woman. Or that they’d be the source of an alleged $2.5 million blackmail scheme. 

Sandra Piedrabuena Abrams is the wife of Russell Abrams, the president of hedge fund Titan Capital. 

Danielle Pecile is a former employee of Titan Capital and is suing Russell for sex discrimination. 

Sandra claims that, during her employment with Titan, Danielle came into possession of a CD. This was no ordinary CD. No, Sandra claims that the CD contains semi-nude pictures of her that Russell took while the couple was on their honeymoon.

What’s more, Sandra alleges that Danielle attempted to use the CD to blackmail Russell into settling the sex discrimination case for $2.5 million. 

Hmmm, sorta sounds like the plot to one of those cheesy soap operas that are being canceled right and left. 

Anyhow, Sandra has sued Danielle in New York state court for conversion and intentional infliction of emotional distress. 

Now, Danielle wants to see what Sandra has on Facebook and her other social networking sites. 

Of course, Danielle claims there may be relevant evidence on those sites. Sandra, on the other hand, probably thinks that Danielle is merely intent on causing more embarrassment. 

Despite Sandra’s protests, the trial judge granted Danielle’s request and ordered Sandra to provide access to her social networking accounts in addition to her computer hard drive.

Tuesday, the New York Appellate Division stepped in and overturned the discovery order.

Apart from Sandra’s racy photos, the decision is not all that interesting because the state appeals court applied the rules of discovery in a rather straightforward manner to conclude that Danielle simply failed to justify the need for disclosure.

The court said that the trial judge “improvidently exercised its discretion in ordering [Sandra] to comply with the outstanding discovery demands. With respect to [Danielle's] demand for access to [Sandra's] social networking accounts, no showing has been made that ‘the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims.’…

“Because [Sandra] admits that she has copies of the photographs contained on the subject CD, [Danielle] has also failed to show that she needs access to [Sandra's] hard drive in order to defeat [Sandra's] conversion claim. Nor has [Danielle] shown that broad discovery concerning [Sandra's] finances, education, immigration status, and educational background is ‘material and necessary.’” (Abrams v. Pecile) 

There doesn’t seem to be much good that will come out of this whole affair. But perhaps the case will give pause to all those who tend to forget that, once a photograph reaches the Internet, it is there forever.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Federal courts are not the friendliest of places for your run-of-the-mill personal injury case. 

This week, the 5th Circuit bucked the trend, giving a deliveryman a second chance to prove that it wasn’t his fault that he fell from a loading dock. 

The beneficiary of this semi-divine intervention is Tony Maddox. 

Maddox is a truck driver who makes deliveries to stores in Columbus, Mississippi. For about eight months before he was injured, Maddox made deliveries twice a week to a Townsend & Sons grocery store. 

The concrete loading dock for the store is about five feet off the ground. When not in use, there’s a chain strung between two metal posts that support the roof of the loading dock. The chain is about 30 inches off the ground and is intended to prevent workers from backing off the dock when maneuvering a load. 

On September 26, 2005, Maddox made a delivery to Townsend & Sons. Rather than using the loading dock, Maddox wheeled his delivery cart up a side ramp. 

While waiting, Maddox either leaned or sat on the safety chain. Sure enough, the chain gave way and Maddox fell off the dock, breaking his pelvis. 

The chain evidently failed when the S-hook connecting the chain to one of the posts straightened under Maddox’s weight. 

Maddox subsequently filed a premises liability lawsuit against Townsend & Sons in the U.S. District Court for the Northern District of Mississippi. According to Maddox, the grocery store failed to keep its premises reasonably safe and failed to warn him of hidden dangers.

Townsend & Sons highlighted evidence that the 200-pound Maddox was actually sitting on the chain when it failed. Because the chain was not intended for that purpose, Maddox was to blame for his own injuries.

That’s the store’s side of the case.

On the other hand, Maddox claimed that the chain failed when he simply leaned up against it as he attempted to stay out of the way on a crowded loading dock.

The district court evidently found the grocer’s version of events much more plausible and booted Maddox’s lawsuit via a summary judgment.

Monday, the 5th Circuit reversed, deciding that a jury should hear the case.

As to whether a dangerous condition existed on the grocer’s property, the court observed that “[s]ummary judgment appears to have been entered because of the view that no one would have perceived the chain to be completely safe to sit upon; it hung at the edge of the dock and a fall at that location obviously could cause serious injuries; liability cannot be created from the fact that the chain did not do something it was not intended to do.”

The court agreed that this take on the accident was “a commonsense view that jurors might accept,” but concluded that “there were fact issues under Mississippi law as to whether Townsend & Sons had an obligation to anticipate some of this kind of conduct and, having failed to do so, whether it became partially responsible for Maddox’s injuries.”

Zeroing in on this issue, the court said that if “a premises owner used a safety device to protect invitees from one kind of hazard but in so doing created a hazard of a different kind, then a fact question would remain of whether the owner should have anticipated that risk.”

Likewise, the court decided that Maddox could proceed with his failure-to-warn claim.

“Whether the possibility that the S-hook was the weak link in the entire chain assembly should have been discovered by Townsend & Sons, and whether that created an unreasonable risk of harm for which warnings were needed because, for example, the chain was convenient to the place deliverymen would wait their turn, are fact questions not resolvable here,” the court said. (Maddox v. Townsend & Sons) 

– Pat Murphy

patrick.murphy@lawyersusaonline.com

How long must an employee with a drug addiction stay “clean” before the protections of the Americans with Disabilities Act kick in?

Yesterday, the 10th Circuit faced the question of whether an employee could sue under the ADA’s “safe harbor” provision when he had abstained from using drugs for 30 days before being denied reinstatement to his former job.

The ADA largely immunizes employers from disability discrimination suits when it comes to substance abuse. Under 42 U.S.C. §12114(a), an employee or job applicant is not “a qualified individual with a disability” if he “is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.”

However, the ADA does provide a “safe harbor” for those who are honestly making progress in kicking a drug habit.

Section 12114(b)(1) specifically exempts from the harsh effects of §12114(a) someone who “has successfully completed a supervised drug rehabilitation program and is no longer engaging in” illegal drug use.

Peter Karl Mauerhan thinks he is entitled to the benefit of the ADA’s safe harbor.

Mauerhan worked as a sales representative for Wagner Corporation in Utah from 1994 until June 2005.

On June 20, 2005, Mauerhan failed a workplace drug test and the company fired him.

Two weeks later — July 6 to be precise — Mauerhan entered an inpatient drug rehabilitation program in order to deal with the problems he had with cocaine and marijuana. He completed the program on August 4, 2005.

The next day, Mauerhan asked for his old job back.

Wagner was a little leery of this request since the company was aware that Mauerhan had been in an outpatient drug rehab program before his latest misadventure.

In the end, though, the employer was fairly reasonable. Wagner said Mauerhan could return to the company. The hitch was that it would be at reduced levels of compensation and sales responsibilities.

Mauerhan rebuffed this offer of reinstatement and sued Wagner in federal court for violating the ADA by discriminating against him on the basis of his status as a drug addict.

The central issue in the case was whether Mauerhan fell within the scope of the ADA’s safe harbor provision on the basis that, at the time he applied for reinstatement, he had completed a drug rehab program and abstained from drug use for a month. (Mauerhan asserts that he has remained drug free ever since, as well.)

The district court decided that there was no safe harbor for Mauerhan and granted Wagner’s motion for summary judgment.

On appeal, the 10th Circuit had to grapple with the issue of whether Mauerhan was in essence a “current” drug user at the time he sought reemployment.

Wagner wanted the court to adopt a bright line rule that the ADA’s safe harbor does not apply to employees like Mauerhan. According to Wagner, abstinence for a period of 30 days was insufficient as a matter of law for an individual to establish he was no longer “currently” using drugs under the Act.

The 10th Circuit rejected a categorical rule, explaining that the issue “is not solely one of the number of days or weeks that have passed since an individual last illegally used drugs.”

Instead, the court adopted the approach taken by the 5th Circuit, holding that “an individual is currently engaging in the illegal use of drugs if ‘the drug use was sufficiently recent to justify the employer’s reasonable belief that the drug abuse remained an ongoing problem.’”

Unfortunately for Mauerhan, the court decided that under this standard he could not avail himself of the ADA’s safe harbor.

The court agreed that Mauerhan’s completion of a drug rehabilitation program brought him closer to qualifying for the safe harbor. But that fact was not dispositive, particularly in light of the time frame at issue.

“Although thirty days without using drugs may in some cases be sufficient for an employee to gain the protection of the ADA, the record before us shows that in this case it was not,” the court said.

The court explained that “it is undisputed that Mr. Mauerhan’s recovery status was ‘guarded’ and at least ninety days of recovery was necessary to ensure significant improvement in his condition. As a result, Mr. Mauerhan failed to raise a genuine dispute regarding whether he was currently engaging in the illegal use of drugs within the meaning of the ADA at the time he asked to be rehired.” (Mauerhan v. Wagner Corporation)

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Attorneys are ordinarily very careful creatures when it comes to protecting their all-important fee in a client’s bankruptcy case.

One Kentucky lawyer, however, has learned the hard way the dire consequences of failing to follow the rather simple rules governing retainers in bankruptcy.

Frank Yates represented Stetler Cross Ministries when it filed for Chapter 11 bankruptcy in the Western District of Kentucky. But he got it all wrong from the start.

Yates filed the bankruptcy petition on August 3, 2009, without having a written retainer agreement in hand.

Nope, although Yates claimed that he and the debtor had an oral agreement for legal services, it wasn’t until August 15 that a written retainer was actually executed.

This post-petition retainer agreement became a real problem when the bankruptcy trustee came after the $2,000 that Yates received for his services from Stetler Cross Ministries.

The trustee filed a motion to disgorge Yates’ retainer for failure to comply with bankruptcy procedures.

The bankruptcy judge — who we’ll later find out had his own issues with the lawyer — entered an order for disgorgement of attorney fees pursuant to 11 U.S.C. §330(a)(2).

Last Thursday, U.S. District Judge Thomas B. Russell affirmed this rather extraordinary remedy.

Yates tried to avoid the loss of his fee by arguing that there had been a prepetition oral contract with the client that was simply reduced to writing post-petition. Under this theory, the lawyer’s $2,000 payment was supposedly a prepetition “classic retainer” and therefore never property of the estate.

But Russell didn’t buy it.

“[Yates] has produced no evidence of the date of such a prior oral agreement, for example by either his or his client’s affidavit,” said the judge. “[Yates] has also produced no evidence to indicate that the payment from the prior oral agreement was received prepetition.”

The judge observed that “[e]ven if the agreement were prepetition, the payment would also have to be made prepetition, or else the payment would have involved estate property. Accordingly, there is insufficient evidence to indicate that any agreement and payment were prepetition. The retainer was therefore property of the estate at the time of transfer, and was within the control of the Bankruptcy Court.”

Russell wasn’t done with this issue, explaining that, even if he were to give Yates the benefit of the doubt that the agreement and retainer payment were prepetition, the lawyer still had the burden of showing that the retainer was actually a classic retainer and not a security retainer.

This Yates could not do.

Scanning the bankruptcy court’s docket sheet, Russell observed that there was no evidence that Yates ever sought payment on an hourly basis following the bankruptcy filing.

“Under the Bankruptcy Code, the court can award reasonable compensation for services,” Russell explained. “However, no such attempt to attain compensation, in 9 months of work, was made. Such a failure to collect reasonable compensation seems to indicate that [his] $150 hourly fee was initially meant to come from the retainer. This setup results in a security retainer that remains the property of the estate even if collected prepetition.” (Stetler Cross Ministries v. McDermott)

Yates’ final gambit was to throw himself on the mercy of the court. After all, disgorgement is a “harsh and extraordinary” remedy. 

Unfortunately for Yates, he had gotten himself on the wrong side of the bankruptcy judge, and U.S. District Judge Russell was not about to second-guess his colleague.

Russell had reviewed the hearing transcripts from the bankruptcy court and come to the conclusion that Yates had engaged in some shenanigans that didn’t warrant mercy.

In a footnote, Russell recounted these comments from the bench made by an obviously frustrated bankruptcy judge: “[Mr. Yates,] I think you were hired by Ms. Stetler because she knew that you would file some documents for her and drag this case out as long as possible, without care to the rules and obligations of counsel for a Chapter 11 debtor, without the obligations owed by a Chapter 11 debtor to this Court, its creditors, and all of the other parties in interest. I am offended by that.”

Which all goes to prove that it’s never a good thing to anger the guys and gals in the black robes, particularly if you want to get paid. 

– Pat Murphy

patrick.murphy@lawyersusaonline.com

A California law firm thought it had won $1.2 million fair and square when it arbitrated a fee dispute with two clients.

But the firm’s dreams of finally settling its accounts were dashed Friday when a state court of appeals decided the clients had not agreed to binding arbitration after all.

The clients in the case, George and Esther Goff, operate an art gallery in Los Angeles. The Goffs found that they needed some legal help in a dispute with an artist over royalties, so they hired Glaser, Weil, Fink, Jacobs & Shapiro.

The Goffs’ dispute with the artist spawned a dispute with their law firm when Glaser Weil submitted its bill for $654,658.28.

The Goffs didn’t want to pay, so Glaser Weil threatened to sue. And then started a dance between the Goffs and Glazer Weil as to whether the fee dispute would be resolved through binding arbitration.

At first, the Goffs requested binding arbitration under the rules of the Los Angeles County Bar Association and its in-house arbitration services provider, Dispute Resolution Services.

For some reason, the law firm didn’t like its chances in that forum, so Glaser Weil initially declined binding arbitration.

But that all changed when Glaser Weil learned who had been appointed as arbitrators. The law firm was evidently comforted by the composition of the panel and decided that it would agree to binding arbitration after all.

Now it was the Goffs’ turn to balk. The clients apparently were scared off by Glaser Weil’s sudden enthusiasm, so they attempted to revoke their original request for binding arbitration.

But the arbitrators wouldn’t allow the Goffs to back out, deciding that their original election of binding arbitration was an offer that was accepted by the firm and could not be revoked once accepted.

This was just peachy for Glaser Weil because the arbitrators also found in favor of the firm on the merits, awarding $1,187,362.43 in fees and interest.

A state trial court quickly confirmed the arbitration award without much ado, so it looked like Glaser Weil was well on its way to finally getting paid.

But the law firm’s big pay day will have to wait because last week the California Court of Appeal decided that, when all was said and done, the Goffs had not agreed to binding arbitration.

In reaching its decision, the court rejected the law firm’s first line of defense that the arbitrators’ ruling that the arbitration was binding is not subject to independent judicial review.

The court framed this threshold issue as asking whether a court can treat an arbitration award as binding and, therefore, unreviewable solely because the arbitrator both ruled it is binding and had authority to rule on that issue.

The court said the answer must be no.

“Unless a court has first determined for itself that the parties agreed to be bound, the court has no basis for treating any part of the arbitrator‘s award as binding,” the court said.

Proceeding to the issue of whether the Goffs in this case had subjected themselves to binding arbitration, the court resorted to the old contract principles of offer and acceptance to conclude that they hadn’t.

The court explained that “when the Firm unequivocally rejected the Goffs’ written request for binding arbitration and communicated that rejection to the Goffs, the Goffs’ offer was terminated and could not later be accepted by the Firm….

“Thereafter, when the Firm changed its mind and submitted its own written request for binding arbitration, the Goffs rejected that offer. Accordingly, the parties never entered into a written agreement for binding arbitration, so the arbitration was nonbinding.” (Glaser, Weil, Fink, Jacobs & Shapiro v. Goff) 

Providing some solace to law firms in this predicament (and making a good argument for why this case will probably be reviewed by the California Supreme Court), Associate Justice Jeffrey W. Johnson explained in his dissent why the majority may have gone seriously astray.

The judge said “the scope of the arbitrator’s power derives from the parties’ agreement, and may include not only a predispute agreement to arbitrate but any other matters the parties agree to submit to the arbitrator….

“Here, the Goffs do not contest, and the majority concedes, that the arbitrator had the authority to determine whether the arbitration would be binding.”

Taking the gloves off, Judge Johnson said “the majority strains to announce a new rule of law devoid of jurisprudential basis, and which as a result has no utility within the framework of California law….

“The majority’s new rule makes a mockery of the arbitration process, undermines the basic principles of severely limited judicial review of matters parties have agreed to submit to arbitration, and ignores countless decades of California jurisprudence that the rulings of arbitrators are reviewable only in very limited circumstances.”

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Unwary consumers get snagged by arbitration clauses all the time.

But it’s an eyebrow-raiser when a premiere Silicon Valley law firm gets dragged kicking and screaming into arbitration when its brand new office software suffers a meltdown. 

Hopkins & Carley describes itself as Silicon Valley’s “dominant” regional law firm.

When you’re busy dominating everybody, you need things to run smoothly behind the scenes. You can’t afford distractions like major problems with the new computer software you just purchased to keep your office running at peak efficiency.

Hopkins & Carley claims that the accounting and law practice management software that it purchased from Thomson Elite is a lemon.

In June 2006, H&C purchased Elite software and associated services from Thomson. While H&C was still in the process of implementing the Elite software, Thomson pitched its new 3E software product.

According to H&C, Thomson claimed that the 3E product was far superior and — what was surely a deal maker — Thomson said the law firm could switch to the new product at no additional cost.

This sounded good, so H&C executed a new customer agreement for the 3E software. Under the new contract, H&C also purchased Thomson’s Client Relationship Management (CRM) product. Thomson allegedly promised that the CRM product could be easily integrated with the 3E product.

H&C soon would experience buyer’s remorse.

According to the law firm, it immediately began to note various problems with its operations relating to the new software. And what Thomson first claimed were “minor bugs” turned out to be unfixable.

The law firm alleged that the 3E software had serious structural problems that made the product unusable.

So H&E went to court, suing Thomson for (1) fraudulent performance of contract; (2) fraudulent inducement of contract; (3) negligent misrepresentation; (4) breach of contract; (5) breach of express and implied warranty; and (6) rescission.

The gist of H&E’s lawsuit was that Thomson pitched the 3E software as a finished product when it was allegedly still in development.

Thomson demanded that the matter be arbitrated under a clause in the purchase contract applying to “any dispute arising under the Agreement.”

The bright minds at H&C argued that the lawsuit did not fall within the scope of the arbitration clause, in essence accusing Thomson of attempting to pull off a ”bait and switch.”

This argument was carefully considered by U.S. District Lucy K. Koh for the Northern District of California.

After this careful consideration — and perhaps mindful that here was a high-powered law firm that was trying to avoid an arbitration clause in a contract it had freely entered into —  Judge Koh decided that H&C didn’t have a leg to stand on.

In entering an order compelling arbitration last week, the judge found that “the allegations supporting these claims require examination of Thomson’s performance under the contract and reference to the promises made through the parties’ contractual agreement.”

By way of example, the judge observed that ”H&C’s claims for fraudulent inducement and negligent misrepresentation are premised in part on claims that Thomson misrepresented and concealed its ‘ability and intention to fulfill its obligations to H&C’ and continued to misrepresent its ability to implement and fix the 3E product. …

“Similarly, H&C’s claim for rescission is premised on claims that Thomson misrepresented its ability to perform and provide services to implement the 3E and CRM products, and that ‘H&C did not intend or agree to receive the products and services actually delivered.’”

The court reasoned these claims “thus require interpretation of the obligations Thomson owed H&C under the contract, the services Thomson agreed to perform under the contract, and the product and services H&C contracted to receive. They also require examination of Thomson’s conduct in performing its obligations under the contract. … [H]ere all of H&C’s claims are inextricably bound up with questions of contract interpretation, performance, and breach.” (Hopkins & Carley, ALC v. Thomson Elite) 

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Police don’t really enforce those “Road Closed — Local Traffic Only” signs, do they?

Leave it to a drunk driver in Sheboygan, Wisconsin, to find out that sometimes they actually do.

I read “Road Closed” as slow down and look out for exposed manholes. I figure that if I can get through to the other end at all, it’s “Damn the torpedoes!”

The “Local Traffic Only” bit doesn’t faze me in the slightest. Who’s to say I’m not local?

That’s probably what was going through the mind of Jeffrey Bubolz when the bars closed on May 5, 2009.

On the way home, Bubolz came upon a closed construction zone on Highway 42 between the Village of Howards Grove and Sheboygan.

The signs posted on each end of the construction zone warned drivers that access was for local traffic only, but this wasn’t about to deter Bubolz.

Unfortunately for Bubolz, Sheriff’s Deputy Steven S. Wimmer was specifically assigned to patrol the closed construction zone.

Now, this is probably the only time in the history of law enforcement that an officer has actually been assigned to enforce those local traffic signs.

I’ve been driving for 40 years and have never been stopped for entering a construction zone. In fact, the only time you ever see police in a construction zone is when they’re actually protecting construction workers on the job.

But Deputy Wimmer was there in the early morning hours of May 5, 2009, to observe Bubolz drive around the barricades at one end of the Highway 42 construction zone and leave at the other end.

Wimmer stopped Bubolz for ignoring the traffic signs and discovered that the driver had been drinking. So Bubolz found himself facing a first offense drunk driving charge.

Bubolz had one card to play in seeking to avoid a conviction. He argued that ignoring a traffic sign warning motorists that a road is closed, except to local traffic, does not create reasonable suspicion justifying an investigative traffic stop.

More specifically, he argued that the road closed signs that he ignored were not “official” traffic signs subject to enforcement by police under the state’s motor vehicle laws.

This argument fell on deaf ears in the trial court and Bubolz found himself convicted for drunk driving.

Last week, the Wisconsin Court of Appeals weighed in on whether Deputy Wimmer was justified in stopping Bubolz.

The court decided that there had been no Fourth Amendment violation — without deciding whether the construction zone signs at issue were “official” traffic signs under state law.

The court said that the “deputy observed Bubolz swerve around Road Closed — Local Traffic Only signs that resembled official signs and travel the entire length of a closed construction zone. …

“Nothing indicated that the signs were not official signs. A reasonable deputy could believe the barricade signs closing the construction zone on [Highway] 42 were official traffic signs. Therefore, the deputy had reasonable suspicion to believe Bubolz had committed a crime.” (Wisconsin v. Bubolz) 

– Pat Murphy

patrick.murphy@lawyersusaonline.com

The federal government is broke.

Because it is broke, the government will increasingly be making decisions that offend notions of basic fairness.

That is the effect of grinding debt. The brutal math makes fairness a secondary concern.

Yesterday, the 4th Circuit issued a decision involving a child conceived through in vitro fertilization that hints at just how unfair the government can be.

The case involved W.M.S., the child of Janice Schafer. W.M.S. was conceived through in vitro fertilization in April 1999 and born in Texas on January 13, 2000.

Janice claims that W.M.S. is the biological child of her husband, Don, who died in 1993. Don was diagnosed with cancer in 1992, shortly after their marriage. According to Janice, Don deposited sperm samples with a long-term storage facility in anticipation of his death. Don’s sperm was used to conceive W.M.S. seven years later.

A Texas court agreed with this version of events, in 2001 declaring Don Schafer to be W.M.S.’s father.

In 2004, Janice took the Texas court order and applied for surviving child benefits with the Social Security Administration.

Janice’s claim squarely presented the novel issue of whether a child posthumously conceived through in vitro fertilization is a “child” entitled to survivors’ benefits within the meaning of the Social Security Act.

According to the Social Security Administration, the answer is no. The agency reasons that natural children must be able to inherit from the decedent under state intestacy law or satisfy certain exceptions to that requirement in order to count as “children” under the Act.

This would leave W.M.S. outside in the cold.

Tuesday, the 4th Circuit affirmed this rather harsh result.

“The agency’s view best reflects the statute’s text, structure, and aim of providing benefits primarily to those who unexpectedly lose a wage earner’s support. And even if the agency’s interpretation were not the only reasonable one, it falls well within the range of permissible readings entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984),” wrote Circuit Judge Harvie Wilkinson III for the majority.

The judge was unapologetic in reaching this outcome, observing that “if sad facts make hard cases, we cannot allow hard cases to make bad law.” (Schafer v. Astrue) 

Circuit Judge Andre M. Davis was more sympathetic to the plight of Janice and her child, concluding in his dissent that the Social Security Act clearly authorized an award of benefits in this case.

In criticizing the court’s decision, Davis said that the “majority is surely correct in its implied lament that we live in a ‘brave new world,’ one in which the law lags behind technology, as it ever has. But that truism has never defined a ‘hard case.’ …

“What must be recalled is that judicial opinions, like the statutes they interpret, are not merely words arranged on paper. They have real effects on real people.”

Alas, when the treasury is empty, there are no good choices.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Being required to provide a urine sample while directly facing some strange technocrat can’t be the most pleasant of experiences, but it hardly amounts to a violation of constitutional rights. 

That’s what the 6th Circuit decided last week in a §1983 lawsuit brought by Norman Norris. 

Kentucky police arrested and charged Norris for sexually abusing his stepdaughter. While awaiting trial, Norris was placed in a pretrial release program. In order to be freed pending trial, Norris agreed to a number of conditions, one of which included random drug testing. 

Prosecutors ultimately dropped the charges against Norris, but he was sore over the manner which he had been required to provide urine samples while on pretrial release. 

Premier Integrity Solutions is a private company that conducts the pretrial drug testing for Kentucky courts. 

Premier uses a “direct observation” method to obtain urine samples. For a male participant in the program, this means dropping your pants so a Premier employee can directly observe the urine coming straight out of the body. 

Norris didn’t appreciate the fact that he had to drop trou while directly facing a Premier employee for each of his five drug tests. 

So with the charges against him dropped, Norris sued Premier as a state agent under §1983. According to Norris, Premier’s direct observation method of obtaining urine samples was overly intrusive in violation of the Fourth Amendment. 

U.S. District Judge John G. Heyburn II for the Western District of Kentucky agreed that Premier’s direct observation method was “highly intrusive,” but in the end concluded that there was no Fourth Amendment violation. 

Wednesday, the 6th Circuit affirmed the summary judgment in favor of Premier.

The court first noted that Norris had a significantly reduced expectation of privacy because he had agreed to undergo drug testing in order to obtain his pretrial release.

Further, the court found that the government had a compelling interest to ensure the accuracy of the drug test by preventing Norris from giving a false specimen. 

“The record shows that it is easy and widespread for people providing urine for drug testing to substitute false or inaccurate specimens and that only the direct observation method of obtaining such samples is fully effective ‘to prevent cheating on drug tests,’” the 6th Circuit said. “Neither the Kentucky authorities nor Premier acted improperly in requiring that method.” (Norris v. Premier Integrity Solutions) 

Circuit Judge Karen Nelson Moore dissented. To anyone familiar with Judge Moore, this should come as no surprise. The judge has a predilection for treating accused criminals like lost puppies. 

That Norris had agreed to drug testing in order to obtain his freedom in advance of trial did not matter much to Judge Moore. 

“Kentucky has no reason to believe that suspects in non-drug-related crimes with no history of drug use will use drugs while on pretrial release,” Moore wrote.

“The risk that they will, nevertheless, falsify drug tests is too attenuated to impose the added protection-and incumbent privacy intrusion-of direct-observation testing. Therefore, in my view, the ability to evade or falsify testing does not strengthen the government’s interest sufficiently to overcome Norris’s expectation of privacy given the extremely intrusive nature of the search.”

Don’t be too surprised if this case winds up before the Supreme Court. It presents a discrete issue — which the Court favors — and with cheating in drug testing being such a common problem, the case also presents a question that needs to be answered definitively. 

- Pat Murphy

patrick.murphy@lawyersusaonline.com

A federal judge has rejected a negligence action brought by a Southwest Airlines flight attendant who suffered injuries when her plane hit severe turbulence. 

Peggy LeGrande was working Flight 2745 when it took off from Cleveland-Hopkins Airport at 9:40 pm on February 10, 2006. The plane was bound for Chicago Midway Airport. 

The Cleveland Air Traffic Control Center handled Flight 2745. Before Flight 2745 took off, Cleveland Center’s meteorologist issued a general forecast — called a Meteorological Impact Statement (MIS) — for “frequent moderate to isolated severe turbulence” in the area. 

Under FAA guidelines, an MIS is used by air traffic controllers in managing flight operations and not intended for pilots. 

Also before the plane departed, Cleveland Center issued a more specific report of severe turbulence east of Cleveland — away from Flight 2745′s flight path. Unlike an MIS, this advisory fell within the FAA category of reports issued for pilot use.  

Several minutes into the flight, LeGrande’s plane experienced a slight to moderate “bump” and the pilots instructed flight attendants to take their seats.

Within five seconds of the pilots’ warning, Flight 2745 experienced severe turbulence for about fifteen seconds. LeGrande hadn’t had time to secure herself, so the flight attendant was tossed around the cabin and injured.

LeGrande sued under the Federal Tort Claims Act, alleging that FAA air traffic controllers negligently failed to warn Flight 2745′s pilots of the potential for severe turbulence.

Last week, U.S. District Judge Joan Gottschall for the Northern District of Illinois granted the government’s motion for summary judgment.

The judge exhaustively examined FAA regulations regarding the handling of weather reports, explaining in detail that federal meteorologists issue various categories of weather reports. Some weather reports are intended to warn controllers and pilots of potential flight hazards, while other reports, like MISs, are simply used to manage the flow of air traffic.

The upshot of Judge Gottschall’s analysis was that the air controllers handling Flight 2745 provided its pilots with all the weather information they had a duty to provide.

A primary point of contention for LeGrande was the air traffic controllers’ failure to communicate to Flight 2745′s pilots the MISs forecasting “isolated severe turbulence” in the general area.

The judge dispensed with this claim, explaining that the “MISs were broad, internal forecasts indicating the potential for isolated severe turbulence to occur in over 10,000 feet of vertical airspace over a twelve hour span. Because [the Cleveland Center meteorologist] did not believe that the possibility of severe turbulence warranted issuing a weather product that would be disseminated to pilots, a reasonable air traffic controller, with no meteorological training, would not have warned pilots of the possibility for isolated severe turbulence.”

The judge concluded that “Cleveland Center controllers did not breach the standard of care in performing their legal duties to disseminate weather in relation to Flight 2745 because there is no evidence that they knew of, or should have known of, severe turbulence in Flight 2745′s path.” (LeGrande v. U.S.)

– Pat Murphy

patrick.murphy@lawyersusaonline.com