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Monthly Archives: July 2011

Compulsive gambler rolls snake eyes in Mirapex suit

The estate of an Australian tycoon will not get the chance to recover $20 million in gambling losses that were allegedly the result of his taking the prescription drug Mirapex. 

Nabil Gazal should have lived a long and happy life. He had accrued a small fortune from Gazcorp, a successful Australian industrial and retail development corporation, so money was never going to be a problem.

But the wheel of fortune turned in 2002 when he was diagnosed with Parkinson’s disease. Gazal traveled to Houston, Texas to receive treatment at the Baylor College of Medicine’s Parkinson’s Disease Center.

There, doctors prescribed Mirapex to reduce his symptoms. The drug is made by a Connecticut firm, Boehringer Ingelheim Pharmaceuticals, and is also commonly prescribed to treat restless leg syndrome.

The problem with Mirapex is that it has numerous side effects, including anxiety attacks, depression, insomnia, aggression, and claustrophobia. The drug also had another side effect which was unknown at the time Gazal began taking it in 2002.

Gazal liked to gamble as a pastime. Shortly after beginning treatment, Gazal began to gamble much more than he had previously. This wouldn’t have been so bad if he had been a capable gambler who knew when to fold ‘em, but he wasn’t and his losses increased ten-fold.

But perhaps a lack of skill wasn’t the real problem.

In February 2005, Gazal first noted to others his increased gambling. In April 2005, he reported his concerns to his doctor.

Early suspicions began to take a concrete form when the Mayo Clinic in July 2005 published a study suggesting a link between Mirapex and compulsive gambling. Later, in November 2005, one of Gaza’s doctors raised the issue that Mirapex might be responsible for his gambling problems.

With this new awareness, Gazal wrote to two casinos in Australia in May 2006, requesting that they refuse his business. He asked the same of his gambling buddies.

Gazal couldn’t control himself, however. When he saw his doctors at Baylor in September 2007, he reported that he had lost millions of dollars.

The first large-scale study of Mirapex and impulse-control disorders was published in June 2008. The Dominion Study concluded that patients taking Mirapex had a risk of developing a gambling disorder.

In May 2009 — with the Dominions Study in hand — Gazal filed a product liability suit in Texas state court against Boehringer Ingelheim. Also named in the suit were Pfizer, Pharmacia Corp. and Pharmacia & Upjohn, companies which helped research and distribute Mirapex.

The gist of Gazal’s lawsuit was that the pharmaceutical companies failed to warn him that taking Mirapex could lead to compulsive gambling. According to Gazal, he suffered $20 million in damages.

Gazal’s action was one of hundreds of similar suits filed across country, so after being removed to federal court it was transferred to Minnesota as part of the Mirapex Products Liability Multidistrict Litigation.

Gazal died in 2010, so the lawsuit fell into the lap of his widow as representative of his estate. This didn’t matter because the district court concluded that the claim was time-barred under Texas’ two-year statute of limitation.

Yesterday, the 8th Circuit affirmed the dismissal, rejecting the argument of Gazal’s widow that the action did not accrue until June 2008 when the Dominion Study established a Mirapex-gambling link.

In Thursday’s decision, the 8th Circuit decided that, under Texas law, an “objective verification of causation, in the form of an epidemiological study … is not a predicate that must be established for a claim to accrue.”

Instead, the court concluded that Gazal first had notice of his claim four years before he filed.

“[W]e conclude that Gazal was on notice of his injury and of its causal connection to his Mirapex prescription no later than 2005. He had access to information about the cause of his increased gambling, including his own observations and insight gleaned from talking with his doctors. …

“His actions also reflect an awareness of the underlying cause behind his compulsive behaviors. In 2005, he reported his compulsive gambling to a doctor and linked it to Mirapex. Later that year, he was hospitalized while attempting to cease his use of Mirapex,” the court said. (Gazal v. Boehringer Ingelheim Pharmaceuticals)

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Taser ‘victim’ awarded one dollar

An Illinois man who was repeatedly tasered by police while simply trying to go to work will receive only one dollar for his troubles.

The real bad news is that his lawyer will receive nothing, despite proving that officers used excessive force.

The unfortunate plaintiff is Thomas Frizzell. In November 2006, Frizzell worked at a Lowe’s Home Improvement Store in Springfield, Illinois.

One day, Frizzell arrived at work with only four minutes to spare before he needed to clock in. This ordinarily wouldn’t have been a problem, but that day he had the misfortune of driving past Sangamon County Deputy Carl Szabo on his way to work.

Szabo was on traffic patrol and thought Frizzell wasn’t wearing a seatbelt. The deputy trailed Frizzell into the Lowe’s parking lot with the intent of issuing a citation.

Now, Frizzell either didn’t hear or ignored Szabo’s commands to stop. In any event, the Lowe’s employee was intent on getting into the store after he exited his vehicle in the parking lot.

Szabo grabbed Frizzell wrist as he tried to enter the store and Frizzell — who was a foot taller and 75 pounds heavier than the deputy — broke free. Frizzell later claimed that he didn’t know who had grabbed him, he was only reacting.

At this point, Szabo pulled a gun and said “stop or I’ll shoot” (according to Frizzell), or you’re under arrest and “if you don’t stop I’ll taser you” (according to Szabo). In any event, other witnesses plainly heard Szabo issue the command to stop, and everybody agrees that Frizzell ignored the command and continued to enter the store.

Frizzell’s explanation is that he just wanted to go inside, clock in, and return with the store manager to clear up the matter with Deputy Szabo. This may have made sense to Frizzell, but the simple truth is that you don’t argue with a police officer or ignore his orders.

When Frizzell tried to continue on his way, Szabo tasered him repeatedly (the taser’s internal log indicated five times). The deputy added pepper spray for good measure, claiming later on that Frizzell ignored commands to stay down. Frizzell himself testified that Szabo also jumped or knelt on his chest before getting the handcuffs on and arresting him.

The charges were later dropped, but Lowe’s fired him because of the incident.

Predictably, Frizzell sued for false arrest and excessive force under §1983. A federal jury returned a verdict for Sangamon County and Deputy Szabo on the false arrest claim, but determined that Frizzell had been the victim of excessive force.

The problem for Frizzell was damages. He testified that he felt weak and faint for several weeks after the tasing, but that was about it.

The jury realized the quandary and during deliberations asked the judge if it had to award Frizzell any damages if it found in his favor on the issue of liability.

The judge instructed the jury that $1 was in order in the absence of proof of compensatory damages, and a $1 verdict is what Frizzell received.

Frizzell appealed to the 7th Circuit. Yesterday, that court decided that one dollar was all he would get.

Frizzell argued that pain, not injury, is the measure of damages under these circumstances, and that an award of nominal damages was plainly inappropriate given the excruciating pain he suffered from five taser shocks.

The problem for Frizzell was that the basis for the jury’s finding of excessive force was not stated.

The 7th Circuit explained that it “is possible the jury felt Szabo was justified in his use of the taser, but that the use of pepper spray or jumping on Frizzell’s chest was excessive in light of the tasering. After all, Szabo was faced with a suspect who appeared to be fleeing from a minor traffic violation, had ignored a lit-up cruiser and multiple requests to stop, was heading toward a busy public place, was much larger than he, and had refused to stay down as ordered. …

“Given this situation, the jury could have reasonably concluded that using the taser multiple times was not excessive, but that Szabo’s actions after using it were.”

Of course, getting only nominal damages became a real problem when Frizzell requested an award of attorney fees, particularly given he was unsuccessful in getting the $160,000 he sought in his complaint.

The district court rejected the request outright, and yesterday’s decision by the 7th Circuit affirmed that ruling:

“Clearly, the jury rejected Frizzell’s entire theory pertaining to false arrest and found that Szabo had probable cause — not surprising considering the circumstances surrounding what should have been a simple traffic ticket and Frizzell’s refusal to stop and listen to Szabo. …

“The jury further rejected the idea that Szabo employed excessive force warranting compensation, and so awarded only nominal damages on the excessive force claim. As the district judge found, ‘Frizzell, therefore, prevailed only marginally on his theory of recovery. Such a marginal victory does not support an award of fees in light of the other factors.’”(Frizzell v. Szabo

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Can fatal shooting constitute assisted suicide?

If you shoot a friend at his own request, is that murder or assisted suicide?

That was the question recently addressed by the South Dakota Supreme Court in a case involving the death of Allen Kissner.

On Nov. 24, 2008, a fisherman found Kissner’s body at the Dakota Point Picnic Area near Rapid City. The 56-year-old was killed by a single gunshot wound to the head. Two days later, Kissner’s friend, Robert Goulding, surrendered to police and was charged with first degree murder.

But this was no straightforward murder case.

Kissner wanted to die. He was a drug addict suffering from terminal pain and was afraid that he was headed back to prison. Having had enough of life, Kissner had recently tried to kill himself, but failed in the attempt.

So he asked his friend to end his pain.

Goulding and Kissner drove to the Dakota Point Picnic Area. Goulding put a gun in Kissner’s ear and pulled the trigger. Kissner’s bleak existence was over.

But Goulding remained behind to face the wrath of the state.

At trial, Goulding wanted to present a defense that the shooting constituted assisted suicide rather than murder.

The trial judge foreclosed that avenue by refusing to allow the jury to consider the state’s assisted suicide law and instructing jurors that “it is not suicide when another person actually performs the overt act resulting in the death of the decedent.”

So it came as no surprise when the jury found Goulding guilty of murder, sending him to prison for life.

Last month, the South Dakota Supreme Court affirmed Goulding’s conviction, concluding that the state’s assisted suicide statute did not apply under these facts, troubling though they may be.

Under South Dakota law, assisted suicide occurs when a person “intentionally in any manner advises, encourages, abets, or assists another person in taking or in attempting to take his or her own life.”

According to Goulding, the statute’s assistance “in any manner” language is broad enough to include an aider’s overt act that directly causes the death of the decedent.

The state supreme court was unsympathetic to this construction of the law.

“The phrase ‘in any manner’ modifies the phrase ‘advises, encourages, abets, or assists another person in taking or in attempting to take his or her own life.’ Therefore, the statute only applies when any manner of assistance is provided to another person in the other person’s taking or attempting to take ‘his or her own life.’…

“But in this case, Kissner, the ‘other person,’ did not take his own life. Kissner’s life was taken by Goulding when Goulding shot Kissner. Therefore, there was no suicide, and ‘without a suicide there can be no assisting a suicide,’” the court said. (South Dakota v. Goulding

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Vegetarians can sue over meat-filled samosas

Americans love their meat, so we generally react with indifference if not outright scorn when vegetarians have problems with restaurants satisfying their dietary demands.

But it’s one thing when some Hollywood diva finds hamburger in her lentil lasagna, and quite another when a devout Hindu has meat-tainted pastries slipped into his take-out order.

A New Jersey court happened to address the latter situation earlier this month, concluding that the devout Hindu is not without legal remedies for spiritual injuries caused by a restaurant’s mistake.

The culprit in the case is Moghul Express, an Indian restaurant in Edison, New Jersey.

On Aug. 10, 2009, Durgesh Gupta placed an order for vegetarian samosas at the restaurant. Samosas are triangular stuffed pastries. The order was for Gupta and fifteen fellow Hindus who were celebrating India Day.

The Hindu scriptures teach that the souls of those who eat meat can never go to God after death. Importantly, the religion does not excuse accidental consumption of meat products.

Gupta and his friends were strict vegetarians in accordance with the tenets of their religion. For that reason, Gupta allegedly made it clear when placing his order at Moghul Express that he required vegetarian samosas. A half-hour later, Gupta picked up the order, which was marked “VEG samosas.”

At the party, Gupta and his coreligionists began to eat the samosas and immediately became suspicious of the ingredients. Gupta called the restaurant to double-check, and Moghul Express employees allegedly reassured him that there was no meat in the samosas.

After a few more bites, however, Gupta brought the order back to the restaurant where it was confirmed that they did indeed contain meat. The restaurant confessed to a mixup with another order and prepared a new order of vegetarian samosas for Gupta for no charge.

But the spiritual damage had been done.

Gupta and his friends sued Moghul Express in state court for negligence, negligent infliction of emotional distress, consumer fraud, product liability, and breach of express and implied warranties.

A state trial court dismissed all of the plaintiffs’ claims. Earlier this month, the New Jersey Appellate reviewed that decision and affirmed in all but one respect.

The appellate court agreed that the plaintiffs lacked a remedy under the New Jersey Products Liability Act (PLA).

It said that “the PLA is inapplicable as grounds for recovery in the present case because plaintiffs’ claims are not related to a defect in the samosas themselves, which were safe, edible and fit for human consumption, but rather to allegations that they were supplied the wrong product.”

It was a similar story with the plaintiffs’ claims under the New Jersey Consumer Fraud Act (CFA). No, the court agreed that the restaurant employees’ alleged misrepresentations about the vegetarian samosas may well have violated the Act.

However, the court concluded that the plaintiffs suffered no ascertainable damages under the consumer fraud statute.

Likewise, the plaintiffs’ claims of negligence resulting in spiritual injury and negligent infliction of emotional distress also failed.

But there remained one hook to hang a lawsuit on and that was the restaurant’s breach of its express warranty of fitness of the samosas sold to the plaintiffs.

“Our review of the record on summary judgment leads us to conclude that the plaintiffs have presented prima facie evidence of a warranty by employees of Moghul Express that the samosas sold to them were vegetarian,” the court said.

And here the state’s Uniform Commercial Code provided a remedy because the plaintiffs’ spiritual injuries fell within the scope of “consequential” damages.

“In this case, the plaintiffs have alleged emotional or spiritual injury sustained as the result of Moghul Express’s breach of express warranty. We have recognized, in a non-UCC context, the recoverability of damages for emotional distress arising from a breach of contract for the provision of funeral services when the promised services of a shomerim were only partially supplied. …

“There, we determined that the difficulty of calculating such damages did not constitute grounds for dismissal of the plaintiff’s claim. We find that precedent applicable here,” the court said. (Gupta v. Asha Enterprises

Now, in this case the plaintiffs want to recover the costs of travelling to India so that they can undergo a purification ritual at a site along the Ganges River.

On remand, they’ll need to show that those damages were foreseeable, which may be a big hurdle since experts on Hinduism have told The Newark Star-Ledger that there are less costly means of spiritual purification.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Public employee wants $5,200 hot tub included in comp award

Public employees often seem clueless when it comes to understanding why they get so much of the blame for current budget woes. 

Perhaps they should take a look at the sense of entitlement displayed by a Virginia school board employee who wanted his employer to pay for a $5,200 hot tub to soothe his injured shoulder.

Harvey Harris worked for the Portsmouth School Board. On Sept. 20, 2005, Harris injured his left shoulder and his resulting claim was approved by the Virginia Workers’ Compensation Commission.

Harris continued to suffer upper cervical neck pain from the injury. In 2007, he saw a TV commercial featuring a spa pool with jets to massage a person’s neck, shoulders, and lower back.

This sounded like a great idea to Harris, so he mentioned the spa pool to his orthopedic surgeon, Dr. Felix Kirven.

Dr. Kirven was soon on board with the suggestion and obliged by writing a general prescription for a “spa pool/heater” for the 46-year-old Harris.

With the prescription in hand, Harris went to East Coast Leisure and bought a hot tub for $5,200.

Now, even though the hot tub was ostensibly for Harris’ medical needs, he saw fit to buy one big enough to seat six people. Apparently, Mr. Harris needs five friends to talk him through his rehabilitation.

To his credit, part of the cost was covered by his own private insurance, but Harris wanted the balance paid by his employer.

The state workers’ compensation board concluded that the hot tub was an “appliance” reasonably necessary for the medical treatment of Harris’ compensable injury, so it approved the claim.

Someone with the Portsmouth School Board realized that this particular raiding of the public treasury was beyond the pale, so an appeal ensued.

Last week, the Virginia Court of Appeals felt the taxpayers’ pain and reversed the award to Mr. Harris.

“Nothing in the record indicates that claimant could not receive similar treatment (water/heat therapy) elsewhere. Dr. Kirven never indicated that claimant was unable to obtain the same treatment at a fitness/health center. There is certainly no evidence that claimant needed to purchase a six-person hot tub for his home,” the court said.

For future cases, the court offered some guidance.

“We conclude that when a treating physician prescribes an unspecific, generalized, and generic treatment, the claimant must present evidence that such treatment is medically necessary such as evidence that alternative treatment is not adequate, or available medical testimony elaborating on the non-specific prescription, or documentation of the need for the specific treatment obtained by claimant,” the court said. (Portsmouth School Board v. Harris

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Stalker of ESPN’s Erin Andrews leaves employer with lawsuit

It turns out that the creep who secretly shot nude videos of ESPN’s Erin Andrews also left his former employer holding a can of worms. 

Fortunately for the employer, last week a federal judge ruled that a former employee must arbitrate personal injury claims that she, too, was a victim of secret video recording.

In December 2009, Michael David Barrett pleaded guilty to interstate stalking after federal investigators determined that he was responsible for nude videos of Andrews that showed up on the Internet. Barrett had shot the videos through hotel peepholes. 

Prosecutors say that at least 16 other women were victims of the 50-year-old Chicago insurance executive. 

According to a lawsuit filed in federal court, one of those victims is a female insurance executive who worked under Barrett at Combined Insurance Company of America, which is headquartered in Glenview, Illinois.

Jamie Brubaker became a branch manager for the insurance company in 2007. Barrett was her boss and, according to Brubaker, he videoed her in the nude by aiming a cell phone camera through hotel peepholes when she attended company training seminars.

Barrett allegedly sold those videos in Europe for distribution on the worldwide web. 

Brubaker filed her lawsuit in November 2010 in the U.S. District Court for the Eastern District of Tennessee. She wants damages from Combined Insurance and its parent company, ACE Group of Companies.

In her complaint, Brubaker claims that her now former employers are liable for sexual harassment, negligence, invasion of privacy and both negligent and intentional infliction of emotional distress.

In addition, Brubaker alleged that the embarrassment and emotional trauma she suffered caused her to resign in 2010, so she wants damages for constructive discharge.

The first major development in the case came last week when U.S. District Court Judge Thomas W. Phillips ruled that Brubaker’s lawsuit is subject to arbitration under an employment agreement that she signed when ACE purchased Combined Insurance in 2008.    

In particular, the judge concluded that the employer’s arbitration clause was plainly broad enough to encompass Brubaker’s claims. 

He explained that Brubaker “agreed to submit to arbitration ‘all employment-related disagreements and problems that concern … employment discrimination conditions of employment or termination of employment.’”

The judge concluded that the Brubaker’s “sexual harassment claim is clearly an action based upon ‘employment discrimination,’ and therefore is subject to arbitration. The constructive discharge claim — that Plaintiff resigned from ACE because of Mr. Barrett’s alleged actions — is related to ‘termination of employment,’ and therefore is also subject to arbitration.”

As to tort claims, the judge said that Brubaker’s negligent supervision claim also is subject to arbitration because “it relates to both ‘employment discrimination’ and ‘conditions of employment’ (whether Combined Insurance or ACE should have fired Mr. Barrett).” (Brubaker v. Barrett

Notably, the court ruled that Brubaker also must arbitrate her emotional distress and invasion of privacy claims.

So Brubaker’s lawsuit is stayed pending arbitration. Meanwhile, Barrett is serving a 30-month prison term on the federal charges in the Erin Andrews case.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Boy loses foot in rail yard, wins $3.9M in courtroom

Boys do stupid things when trying to impress the girls.

But should a property owner be forced to fork over the cash when a boy’s ill-conceived attempt at bravado ends in tragedy?

An Illinois court recently affirmed a $3.9 million verdict in favor of a boy who lost his foot in a failed attempt to jump a slow-moving freight train.

Somehow, that just doesn’t seem right.

Dominic Choate was on top of the world in July 2003. The twelve-year-old Dominic had just finished sixth grade, in three months would enter the mystical teenage years and, best of all, was dating the apple of his eye, Alisa Van Witzenburg.

The middle of summer is prime time for kids to get into trouble, and that’s exactly what Dominic, Alisa and four of their friends did.

On July 30, 2003, Dominic and Alisa met Charlie Spindler, Steve Weyer, Jessica Gunderson and Brittany Edgar at an apartment building in Chicago Ridge, Illinois.

Three railroad tracks run behind the apartment’s parking lot. CSX owns the tracks. There is chain link fencing on both sides of the railroad right of way. On the parking lot side, the fence only goes part way, with a “NO TRESPASSING” sign posted where the fence ends.

On the other side of the tracks, a hole has been created in the fence big enough for people to walk through. It’s a good bet that local residents created the hole in order to have a convenient short cut to get across the tracks.

You undoubtedly can find similar setups in countless trackside neighborhoods across the country. Railroads put up the fences. Locals and Mother Nature take them down.  

On the fateful day in question, Dominic, Charlie and Steve decided to cross the tracks to visit Steve’s house. At the time, a freight train traveling 9-10 mph was going through the rail yard.

As they waited for the train to pass, Dominic and Charlie came up with the bright idea of trying to jump the train. Dominic later admitted that he wanted to impress Alisa, who stood watching nearby.

Charlie tried first, failed, and stepped back from the train.

Now it was Dominic’s turn.

He first tried to grab the bottom rung of a ladder on one of the cars while standing flat-footed, and had his fingers wrenched in the attempt.

Next, Dominic tried running alongside the slow-moving train before making a grab, but had to let go of the ladder when he felt his feet slipping.

On Dominic’s third try, he managed to grab the ladder and hoist himself up part way, but slipped from the train. In the fall, his left leg went under the train and his left foot was severed.

Dominic survived, but he and his mother sued CSX and the Indiana Harbor Belt Railroad Company (IHB), which patrols the right of way in the area of the accident.

According to the lawsuit filed in Illinois state court, CSX and IHB were negligent in failing have the rail yard fully secured with fencing and in failing to construct a safe, convenient corridor for neighborhood residents to get across the tracks.

Now, surely a jury would not find fault with the railroads for injuries suffered by a trespassing youth who made an incredibly bad decision to try and jump a train, right?

Well, never underestimate the ability of jurors to be led astray (See Florida v. Anthony, California v. Simpson).

A jury awarded Dominic $6.5 million, apparently taking into account school records indicating that the boy had an average-to-low IQ of 83, evidence which the railroads strenuously objected to.

The trial judge did reduce the award to $3.9 million based on Dominic’s comparative negligence, but the verdict sent alarm bells off in the defense bar and railroad industry.

The American Tort Reform Association, Association of American Railroads, Illinois Civil Justice League, Washington Legal Foundation, and Allied Educational Foundation each filed amicus briefs in favor of CSX and its co-defendants.

Naturally, the Illinois Trial Lawyers Association was pleased as punch with the verdict and answered with a brief in support of Dominic.

Last month, the Illinois Appellate Court upheld the award.

Flaunting common sense, the court rejected the railroads’ argument that the act of jumping aboard a moving freight train presented an open and obvious danger for which CSX and its co-defendants owed Dominic no duty of care.

The court reasoned that the jury’s verdict could stand regardless of whether an objective or subjective test applied in determining whether a danger is obvious to a trespassing child.

With regard to the objective test, the court concluded that “[t]he ‘obviousness’ of the danger of jumping aboard a slow-moving, 9 to 10 mile per hour freight train that the not-yet 13-year-old plaintiff could outrun and which had caused neither him nor his friend harm in their previous attempts to board, and the ladder of which was within reach of the plaintiff while standing flat-footed, is not such that no minds could reasonably differ.”

As to the subjective standard, the court cited evidence in the record indicating that Dominic did not appreciate the risk.

“Specifically, plaintiff testified, contrary to his mother’s testimony, that she never told him he could be killed or lose an arm or a leg as a result of a train accident. Plaintiff denied receiving any graphic warnings from his mother regarding how badly he might be hurt in a train accident. …

“Finally, although plaintiff’s two previous attempts to jump aboard the train had been unsuccessful, he was not injured on either of these attempts. Plaintiff testified to his belief at the time he was injured that he would be able to jump on and off the train with no problems,” the court said. (Choate v. Indiana Harbor Belt Railroad Company

Sorry, but none of these conclusions reached by the court pass the “straight face” test.

Any 12-year-old kid who stands near a railroad crossing as a train goes by cannot avoid being impressed with the danger of those grinding steel wheels as they roll along those steel rails. 

Simply put, no 12-year-old kid needs to be told that life and limb is at stake when he attempts to take on a moving freight train.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Electronic monitoring convicts drunk driver

Yesterday, a drunk driver learned that his conviction will stand — even though there are no witnesses who saw him in a motor vehicle at the time in question.

The Wisconsin Supreme Court on Tuesday decided that information generated from an electronic monitoring device worn by the defendant was enough to convict.

And the good news for prosecutors was that there was no need to bring in an expert to vouch for the reliability of the device.

At 10:23 p.m. on June 19, 2006, police arrested Gregg Kandutsch at the home of his estranged wife. The woman had called 911, reporting that someone was trying to break into her Wausau home.

Kandutsch appeared to be heavily intoxicated. The man also had serious injuries after allegedly breaking through a glass door.

Kandutsch was transported to a hospital for treatment of his injuries. Blood tests at the hospital revealed that Kandutsch had a blood alcohol content of .23 percent.

So the state charged Kandutsch with driving while under the influence. The essential problem with the state’s case was that no one had seen Kandutsch driving or even in a motor vehicle during the relevant time frame.

Sure, his green van was parked near his wife’s house, but Kandutsch claimed that he had gotten drunk at a local tavern after he had parked the van.

The problem with Kandutsch’s story was that he was wearing an electronic monitoring device as a term of probation from a prior conviction.

Kandutsch’s probation officer, Amy Klarkowski, was able to produce a computer-generated report showing that at 10:03 on the night in question the defendant went “out of range” of his mother’s home in Rib Mountain.

Rib Mountain is a 15-minute drive from his wife’s home in Wausau, so the clear inference was that Kandutsch had been at the wheel a short time before his arrest.

A jury was convinced by this evidence and convicted Kandutsch of DUI, fifth and subsequent offense.

His conviction raised two issues.

First, could the computer-generated report from Kandutsch’s electronic monitoring device be admitted without expert testimony?

After all, Kandutsch argued that the device he was wearing was inaccurate and that it failed to show that he had actually left his mother’s home in Rib Mountain around 9:00 p.m.

The Wisconsin Supreme Court concluded that no expert testimony was required and that the requisite foundation could be laid by state department of corrections officers who administer the electronic monitoring program.

“Neither the [electronic monitoring device] itself nor the report derived from it is so ‘unusually complex or esoteric’ that expert testimony was required to lay a foundation for the admission of the report as evidence,” the court said.

“The testimony of two Department of Corrections agents was sufficient in this case to provide a foundation for the report’s accuracy and reliability.” (State v. Kandutsch

The second thorny issue was whether the electronic monitoring report itself was inadmissible hearsay. 

On this issue, too, Kandutsch struck out.

“A computer-generated report is not hearsay when it is the result of an automated process free from human input or intervention,” the court explained. “Although the [electronic monitoring] report was not hearsay, it was subject to the authentication requirements of [state law.] The report was properly authenticated through the testimony of the two DOC agents.”

– Pat Murphy

patrick.murphy@lawyersusaonline.com

‘Hostile’ worker entitled to unemployment

Like all too many employees in today’s tough job market, Tara Mooneyham had to deal with taking a cut in pay. 

When told the news, she made the mistake of getting snarky with the company president. The venting may have felt good at the moment, but it sent Mooneyham to the unemployment line.

Mooneyham was a Barnz B, Inc., manufacturing worker for four years before being terminated in 2010. Barnz B is a maker of beauty supplies located in Nixa, Missouri.

Following her March 2010 performance review, the employer gave Mooneyham the bad news that she would be taking a cut in pay and that her job duties would change.

The employer sent Mooneyham home early so that she could digest the bad news, the plan being that she would meet with management the next day to further discuss the changes.

Mooneyham made the mistake of not taking advantage of the cooling off period. Instead, at 6:00 that evening she called up the company president, complaining that she wanted a job description.

The company president promised Mooneyham a job description the next day, but that wasn’t good enough. Mooneyham wanted a job description sent to her that evening.

Barnz B’s president apparently didn’t like Mooneyham’s tone, so she warned the employee not to “push it” or face termination.

Mooneyham was determined to have the final word, however. She told the president, “God bless you, and sweet dreams,” and hung up.

After mulling over the exchange for 30 minutes, Barnz B’s president called back and told Mooneyham that she was being fired for her hostile attitude.

Rubbing salt in the wound, the employer later opposed Mooneyham’s claim for unemployment compensation, contending that the worker had been fired for “misconduct.”

The state’s labor commission denied Mooneyham’s claim for unemployment compensation, agreeing that her “confrontational behavior” qualified as misconduct under state law.

Last week, the Missouri Court of Appeals rode to the rescue, reversing the labor commission and ordering an award of benefits. The court explained that the heated exchange between Mooneyham and Barnz B’s president simply did not amount to misconduct disqualifying the worker from unemployment compensation.

“It may have been poor judgment for claimant to end the call as she did, and no one questions employer’s authority to fire her. Employer’s burden, however, was to show how this rose to the level of misconduct which would bar claimant from drawing unemployment. Employer did not make this showing,” the court said. (Mooneyham v. Barnz B)

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Suicide caused by job review may be compensable

A New York court on Thursday left open the door for an award of death benefits to the wife of a state forensic expert who committed suicide in the wake of a workplace investigation. 

For 31 years, Gary Veeder worked as a forensic scientist for the New York State Police Department. In April 2008, an audit performed at the laboratory where Veeder worked uncovered problems with fiber proficiency tests.

Veeder regularly performed those tests, so over the course of three days he met with supervisors who questioned him about the problem.

Veeder at some point admitted that he had skipped a step in the fiber test analysis procedure, triggering a formal “nonconforming work inquiry” by the department.

With the investigation underway, Veeder stopped going to work. Several weeks later, on May 23, 2008, the forensic expert committed suicide.

Donna Veeder, the man’s widow, filed a claim for death benefits under the state’s workers’ compensation law, asserting that his death arose out of and in the course of his employment.

The state asserted that the claim was barred by N.Y. Workers’ Compensation Law §2(7), which generally operates to bar benefits for job stress caused by lawful disciplinary actions commenced by the employer.

The state’s workers’ compensation board agreed and denied Mrs. Veeder’s claim.

Thursday, the New York Appellate Division took a look at the case and reached the same conclusion insofar as the operation of N.Y. Workers’ Compensation Law §2(7).

“The unrefuted psychiatric evidence contained in the record, as well as the suicide letters, make clear that decedent’s suicide was predominantly the product of the depression and stress he experienced from the employer’s inquiry into the inconsistencies in his fiber analysis tests. …

“Thus, if claimant’s work-related stress is not compensable under Workers’ Compensation Law §2(7), it necessarily follows that any physical injury that resulted therefrom cannot be compensable either,” the court said.

But that did not end the matter because the court went on to conclude that §2(7) did not necessarily bar Mrs. Veeder’s claim because the state had not commenced formal disciplinary proceedings when her husband killed himself.

“Inasmuch as there is no evidence that any formal disciplinary charges had been initiated or contemplated against decedent during the relevant time, substantial evidence does not support the Board’s finding that decedent’s work-related stress was a direct consequence of a personnel decision involving a disciplinary action,” the court said.

But this conclusion didn’t hand Mrs. Veeder a win because the court remanded the matter for the board to consider the state’s alternate argument that her husband’s employer had embarked on an “evaluation” of his job performance within the meaning of the statute.

The court also instructed the board to consider whether death benefits could be denied on the basis that the stress experienced by the forensic scientist was no greater than that normally encountered in the work environment. (Veeder v. New York State Police Department)

So Mrs. Veeder still has substantial hurdles to overcome before seeing any award of death benefits.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

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