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Monthly Archives: August 2011

Texas Supremes shoot down Vioxx award

The Texas Supreme Court on Friday decided that Merck isn’t liable for a 71-year-old rancher who died after briefly taking the now-withdrawn painkiller Vioxx.

Leonel Garza had a long history of heart disease when he died alone at his ranch near Rio Grande City on April 21, 2001.

Twenty years earlier, he suffered a heart attack. His cardiac problems ultimately required quadruple bypass surgery to alleviate blockages in four of his coronary arteries. Later, he underwent a cardiac catheterization procedure that revealed additional blockages in three arteries, followed by a second such procedure that revealed severe recurrent coronary artery disease.

As if this wasn’t enough, Garza had a stent placed in his left main artery to increase the blood flow into his heart. The stent was of limited help as he was later diagnosed with atherosclerotic obstructive disease and chronic venous insufficiency in his legs. On top of those problems, his doctors discovered an abdominal aortic aneurysm.

Despite these serious health issues, Garza’s family blamed Merck and its painkiller Vioxx for the man’s death.

You see, 25 days before his death, Garza went to see his cardiologist, complaining of intermittent numbness, pain, and weakness in his left arm. After determining that Garza was not having a heart attack, the doctor prescribed a week’s supply of Vioxx for pain relief.

In a follow-up visit eight days later, Garza received another prescription for thirty additional 25 mg Vioxx pills.

Seventeen days later, Garza was dead. An autopsy found that the immediate cause of death was a “probable” myocardial infarction, initiated at least in part by the underlying cause of severe coronary artery disease.

Deciding that it was no coincidence that Garza died less than a month after he started taking Vioxx, his family filed a product liability suit against Merck in Texas state court.

In 2006, a sympathetic jury agreed that Merck’s warnings were inadequate and awarded Garza’s family $32 million

Thereafter, the verdict was cut to $7.75 million by the trial judge, reversed by the Texas Court of Appeals, capped at $750,000 under state law, and remanded for a new trial when the state court of appeals took a second look and found juror misconduct.

Last week, the Texas Supreme Court cut to the chase and decided that Merck was not liable at all because Garza’s family could not prove causation.

Specifically, the court concluded that studies showing a statistically significant doubling of the risk of heart attack from taking Vioxx were unreliable under Texas law. 

Moreover, the court rejected the Garza family’s argument that the totality of the evidence established general causation. 

“The Garzas argue that the risk doubling for Garza required by [state law] can be extrapolated from studies finding a doubling of the risk at much higher doses and longer durations. But the Garzas cannot point to any scientific basis for such an extrapolation. The totality of the evidence cannot prove general causation if it does not meet the standards for scientific reliability established by [our precedents]. …

“A plaintiff cannot prove causation by presenting different types of unreliable evidence. Thus, we are constrained to hold that the Garzas did not present reliable evidence of general causation and are therefore not entitled to recover against Merck,” the court said. (Merck v. Garza

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Lawyer disbarred for tampering with firm’s computer files

A talented young Maryland lawyer decided to spread his wings and start his own firm.

The only problem was that he thought he could pull a fast one. Too smart for his own good, the young litigator tampered with his old firm’s computer files in an effort to have a tidy little client base waiting for him when he set out on his own.

Gregory Raymond Keiner at one time had a bright future as a lawyer. Now his dreams have turned to ashes.

In February 2003, Keiner became an associate at The Law Offices of Evan K. Thalenberg, a Baltimore firm that specializes in lead paint litigation. Keiner found success at the firm, making $269,000 in 2008.

Not bad for someone who passed the bar in 2002. 

In 2008, Keiner decided that it was high time to set off on his own. But his plans included some dirty tricks. 

According to court records, from June 2008 until March 2009, Keiner began altering and deleting documents in the firm’s computer system in order to give the false impression that certain client files had been closed.

One trick allegedly involved changing the results of a client’s blood tests as they appeared in the case file. By altering files to show lower-than-actual blood-lead levels, he justified the drafting of a termination letters to clients of the firm.

Of course, the false termination letters were never sent. Instead, they appeared in the client’s file to give the false impression to others in the firm that the case had been closed.

Later investigation revealed that Keiner — using his own letterhead — solicited approximately 200 potential clients for his startup while working for the firm. He later admitted that he used the firm’s resources in his effort to establish a client base for his new practice.

The firm discovered what Keiner was up to when a client contacted the firm and produced a letter from Keiner on Keiner’s own letterhead. When confronted with the solicitation letter, Keiner allegedly admitted that he had altered computer records.

Another lawyer at the firm was tasked with the job of determining the scope of Keiner’s deception. Court records indicate that Keiner had taken 60 to 70 client files for his new firm.

The firm brought Keiner’s shenanigans to the attention of the state’s bar counsel and disciplinary proceedings commenced. A state judge who heard the charges determined that Keiner’s acts of altering and deleting documents within the firm’s client files constituted criminal acts in violation of Maryland law and the Rules of Professional Conduct.

Keiner’s only real defense was the all-to-familiar refrain that he abused alcohol and suffered from depression.

But an unsympathetic Maryland Court of Appeals decided earlier this month that disbarment was the only appropriate sanction for Keiner’s dishonesty.

The state high court said that Keiner’s misconduct “was caused, not by mental illness or alcohol abuse but rather, as [the hearing judge] found, by [Keiner’s] ‘desire to keep for himself more of the income he had been generating for the firm.’ Put simply, [Keiner’s] conduct was dishonest, it was intentional, and it was solely motivated by the desire for personal gain.”

The court concluded that, given Keiner’s “intentional dishonest misconduct, motivated exclusively by his desire for personal gain, the totality of the mitigation [he] has proven does not constitute the ‘compelling extenuating circumstances’ necessary to permit a sanction less than disbarment.” (Attorney Grievance Commission v. Keiner

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Employee with problem pregnancy isn’t ‘disabled’

A healthcare worker who lost her job after experiencing pregnancy complications believes that she’s protected under the Americans with Disabilities Act.

The 7th Circuit on Friday disabused her of that notion.

Beverly Healthcare employed Victoria Serednyj as an activity director at the Golden Living nursing home in Valparaiso, Indiana.

In January 2007, Serednyj learned she was pregnant.  Unfortunately, she began to experience pregnancy-related complications and at the end of February 2007 her doctor placed her on bed rest for two weeks.

After her period of bed rest, Serednyj wanted to return to work. Based on her doctor’s orders, Serednyj asked Beverly Healthcare to place her on light duty.

Because the employer’s work policy did not allow for light duty, it denied Serednyj’s request for an accommodation. Serednyj also did not qualify for leave under the Family Medical Leave Act, so the company terminated her employment.

Serednyj sued for pregnancy discrimination under Title VII, as amended by the Pregnancy Discrimination Act. That claim was going nowhere because Beverly Healthcare treated pregnant workers just like all its other workers when it came to light duty: No one received the accommodation.

So Serednyj was left with the challenge of trying to fashion a novel claim for disability discrimination under the Americans with Disabilities Act.

That claim hit a dead end in the district court. On Friday the 7th Circuit agreed that the ADA did not provide an avenue for relief.

The federal court of appeals went along with Serednyj insofar as she argued that her premature labor, which needed to be controlled through medication, was not a function of a normal pregnancy and, therefore, constituted a “physiological disorder” within the meaning of the ADA.

But while Serednyj won on this point, she could not show that her pregnancy complications substantially limited a major life activity for the purpose of otherwise establishing that she suffered from a disability under the ADA.

“Pregnancy is, by its very nature, of limited duration, and any complications which arise from a pregnancy generally dissipate once a woman gives birth,” the court observed. “Accordingly, an ADA plaintiff asserting a substantial limitation of a major life activity arising from a pregnancy-related physiological disorder faces a tough hurdle.”

Turning to the specifics of the case, the court concluded that Serednyj’s could not show that she suffered from a disability.

“On this record, we find that Serednyj’s pregnancy-related complications did not substantially limit her in the major life activities of reproduction or lifting. Her pregnancy-related impairments were of limited duration, and there is no evidence that she has suffered any long-term limitations as a result. …

“Because Serednyj fails to establish that she suffered from a disability, her ADA claim under Section 12102(2)(A) fails as a matter of law,” the court said. (Serednyj v. Beverly Healthcare

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Grieving mom can’t get damages from ‘cold-hearted’ employer

One New Jersey employer found itself sued for telling a grieving mother that it was time to pull herself together.

But yesterday a state appeals court decided that the employer was not liable for the employee’s alleged emotional injuries from the harsh words of  advice. 

The case involved an intentional infliction of emotional distress claim brought by Cecelia Ingraham against Ortho-McNeil Pharmaceutical. Ingraham worked as an administrative assistant in the marketing department at the company’s Raritan, New Jersey facility. 

Ingraham’s pride and joy was her only child, Tatiana. The teenager would have made any parent beam with pride. 

Tatiana was a member of the National Honor Society, National Latin Society, and National Art Society. She had been accepted by Cornell University and planned to study biology as a pre-med student. An accomplished dancer, Tatiana studied at the New Jersey School of Ballet. 

Unfortunately, in 2003 Tatiana was diagnosed with acute lymphocytic cancer during her junior year in high school and passed away in May 2005. Her high school graduated her posthumously with top honors. 

Of course, Ingraham’s grief was immeasurable. She kept pictures of Tatiana in her cubicle at work. And in a heart-rending tribute, the woman also kept her daughter’s ballet slippers on display in her workspace.

Ingraham’s co-workers were understanding at first, but a year and a half after Tatiana’s death, Carmen Harris, a human resources manager at Ortho-McNeill, was receiving complaints about the grieving mother’s interaction with her co-workers.

Employees in the marketing department allegedly complained that Ingraham made them uncomfortable by continuing to speak about Tatiana’s tragic passing. While they sympathized with Ingraham’s loss, after a year and a half her co-workers felt that there was not much more that could be said to console their colleague.

Harris contacted Carl DeStefanis, the head of the marketing department. DeStefanis scheduled a sit down with Ingraham to discuss the problem.

On Friday, November 17, 2006, DeStefanis called Ingraham into a conference room where he explained that there had been complaints about her speaking of Tatiana and displaying her daughter’s pictures.

Further, DeStefanis allegedly told Ingraham that Tatiana’s pictures and ballet slippers had become a distraction in the workplace. According to Ingraham, he directed her to remove those items from her cubicle.

Ingraham described DeStefanis as being “cold” when he told her these things. And she couldn’t comprehend why her co-workers weren’t more understanding of her plight.

She described herself as “extremely distraught and upset” and “outraged” and “hurt” by the exchange with her boss. In fact, Ingraham was so upset that she left work that afternoon “crying” and “sobbing.”

According to Ingraham, shortly thereafter she needed to see her cardiologist for heart palpitations. Her condition was subsequently treated with an angioplasty procedure and medication.

Ingraham never returned to work, initially taking short-term disability leave and eventually resigning from her job.

She then sued DeStefanis and Ortho-McNeil for intentional infliction of emotional distress in New Jersey state court.

The trial court dismissed Ingraham’s complaint.

Yesterday the New Jersey Appellate Division affirmed that dismissal, deciding that Ingraham could not show that the defendants acted intentionally or recklessly, or that DeStefanis’s conduct was extreme and outrageous.

“There is no question that any reasonable employer should know that telling a grieving mother not to talk about her deceased daughter might cause emotional distress, but a severe reaction was not a risk that one should predict,” the court explained.

It observed that an “employer is not charged under tort law with a duty to avoid all emotional distress to employees, only such distress that is extreme, outrageous, and ‘utterly intolerable in a civilized community.’”

Further, the court stated that “the workplace has too many personal conflicts and too much behavior that might be perceived as uncivil for the courts to be used as the umpire for all but the most extreme workplace disputes.” (Ingraham v. Ortho-McNeil Pharmaceutical

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Does ADA protect suicidal man during arrest?

Does the Americans with Disabilities Act protect a mentally disturbed individual in his interactions with police in the context of an arrest? 

That interesting question was presented to a federal judge in a lawsuit brought by the family of a suicidal man who burst into flames when tasered by a Pennsylvania State Police trooper.

The tragic death occurred on March 18, 2009, in western Pennsylvania. The state police were summoned to the residence of the girlfriend of Levi Mohney. Troopers Robert Hageter, Allen Carmichael and Louis Davis responded to the domestic call, arriving at the mobile home around 7:30.

Mohney had doused himself in gasoline, apparently with the intent of immolating himself. Mohney had allegedly attempted to commit suicide on two prior occasions, but the parties dispute just what the troopers knew about Mohney’s suicidal past.

There’s also a dispute as to whether the troopers fully understood the danger Mohney was in when the they confronted the suicidal man, and whether they were too aggressive in attempting to defuse the situation.

In any event, at some point Trooper Hageter shot Mohney with a taser.

As soon as the taser barbs contacted Mohney’s body, he burst into flames due to the gasoline. The troopers extinguished the flames, but Mohney had suffered serious burns over 98 percent of his body. He died several hours later.

Mohney’s estate sued the state of Pennsylvania under §1983, presenting the predictable excessive force claim. The §1983 claim failed under the tough deliberate indifference standard and is of no further interest here.

More interesting is the estate’s claim that the state troopers violated the Americans with Disabilities Act in their handling of the mentally ill Mohney.

According to Mohney’s estate, Pennsylvania’s alleged failure to train its troopers for peaceful encounters with mentally disabled persons and to establish a policy for handling such encounters resulted in discrimination against Mohney and caused his fatal injuries.

The estate was able to surmount the first hurdle in suing Pennsylvania under the ADA.

Last week, U.S. District Judge Terrence F. McVerrey decided that the Eleventh Amendment did not bar this claim against the state, ruling that applying Title II’s “reasonable modifications” mandate in the context of police interactions with the mentally disabled was consistent with congressional intent.

“[T]he Court finds that Title II, as applied to cases involving the interaction between law enforcement personnel and mentally disabled individuals, is a valid exercise of Congress’ authority pursuant to § 5 of the Fourteenth Amendment. …

“The Eleventh Amendment is therefore not a bar to Plaintiff’s ADA claims against the Commonwealth and [the Pennsylvania State Police],” the judge wrote.

Next, the judge had to decide whether the ADA applied in the context of arrests. He concluded that the Act, theoretically at least, could apply in that context, citing other federal decisions touching on this issue.

“Based on these decisions, as well as the Court’s independent review of the ADA’s legislative history as discussed above, the Court finds that Title II of ADA is potentially applicable in the context of arrests,” the judge wrote.

But there was to be no payoff for Mohney’s estate in getting this far in establishing its novel claim because the court decided that the facts alleged would not in any event support relief under the ADA.

“Plaintiff baldly asserts that the Decedent posed no threat to any of the troopers and was not actively resisting arrest. However, the Amended Complaint fails to state why the Trooper Defendants were called to the scene and whether the Decedent posed a danger to himself or others who may have been present in the home – critically important facts in determining what a reasonable accommodation would be in what Plaintiff termed a ‘tense situation.’ …

“Moreover, even if Defendants were aware that the Decedent had a mental condition, the Complaint fails to aver facts to show that the Defendants should have reasonably anticipated (and accommodated) that he would have doused himself with gasoline,” the judge said. (Mohney v. Pennsylvania

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Release signed by grieving mom may be void

A Union Pacific claims representative must have thought “mission accomplished” when he obtained Manuela Gonzalez’s signature on a release two days after the woman’s son was killed in a railroad crossing accident. 

But the Nebraska Supreme Court has decided that there are just enough questions about the validity of the release to reconsider whether Manuela can sue the railroad for wrongful death.

Manuela’s worst nightmare occurred on July 27, 2005, when her 13-year-old son, Efrain Ramos-Domingo, was killed by a Union Pacific train at a pedestrian crossing in Schuyler, Nebraska.

Two days later, a Union Pacific claims representative approached Manuela and got her to sign a form releasing the railroad from liability for Efrain’s death. In exchange, Manuela received $15,000.

Notwithstanding the release, Manuela later sued for wrongful death, alleging that Union Pacific had negligently designed the pedestrian crossing where Efrain had been killed.

A Nebraska judge dismissed Manuela’s lawsuit, concluding that the release was an “insuperable bar to relief.”

But Friday, the Nebraska Supreme Court concluded that there were too many fishy circumstances surrounding the release to allow it to stand without a more searching inquiry.

For example, Manuela claims that she does not speak English and did not understand that, by signing the release, she was giving up the right to sue Union Pacific.

Further, Manuela was in a financial fix when she was approached by the Union Pacific claims representative. She lacked the resources to give Efrain a proper burial, so she felt compelled to take the $15,000.

According to the court, all of these factors taken together provided a sufficient basis for giving Manuela the opportunity to prove that the release should be set aside.

“While she has not made specific allega­tions regarding misinformation or inaccurate language interpre­tation, affirmative misstatements are not necessary,” the court explained.

“Manuela has alleged facts that would, if proved, support an inference that the release was void as not representing a binding mutual understanding between the parties. And Manuela has at least alleged facts that ‘raise a reasonable expectation that discovery will reveal evidence’ of fraud, overreaching, or duress.” (Gonzalez v. Union Pacific

Moreover, the court rejected Union Pacific’s argument that Manuela, in order to proceed with her lawsuit, was required to tender the $15,000 she received when she signed the release.

The court said that “Manuela’s complaint alleges facts supporting both fraud in the inducement and fraud in the execution. To the extent that she has alleged fraud in the execution, she was not required to tender or return Union Pacific’s consideration in order to assert her underlying wrongful death claim.”

– Pat Murphy

patrick.murphy@lawyersusaonline.com

‘Team mom’ gets to sue for little league injury

Anyone who’s ever been to a little league baseball game knows that you’re taking your life in your hands when you get between a “team mom” and her cubs.

Team moms will rip your head off and never look back.

So it’s something of a surprise that one member of this formidable breed chose to sue rather than just shrug off a knee injury suffered when a youngster accidentally whacked her with a baseball bat.

Cynthia Welch’s son played for a little league team in a summer recreation program run by Wea Township, Indiana.  Jordan Young coached the team.

A self-described team mom, Welch took it upon herself to supply the team with bubble gum, which as we know is a necessary item for any baseball player.

Around the start of a game on May 30, 2007, Welch was handing out bubble gum to the players on her son’s team. Shawn Young — the coach’s 11-year-old son —  was taking practice swings with a bat when Welch walked into the boy’s strike zone. Young’s bat struck Welch in the knee.

Now, I had thought that team moms were invulnerable to anyone who isn’t armed with a bazooka, but apparently I’m wrong.

Yes, Welch had suffered a serious knee injury. So she sued everybody. Yep, into court to answer Welch’s lawsuit trudged Coach Jordan Young, the McCutcheon Youth Baseball League, Wea Township and the Wea Summer Recreation Center.

An Indiana trial judge granted the defendants’ motion for summary judgment, concluding that as a team mom Welch was a “participant” who could not sue over the inherent risks of a little league baseball game.

Early this month, the Indiana Court of Appeals revived Welch’s negligence lawsuit, deciding that there were fact issues that precluded summary judgment.

“Specifically, there are fact issues as to whether the injury took place on the field or outside the playing area, and whether the game was underway or had not yet started. …

“As we cannot be certain from the designated evidence before us whether Welch was injured before or during the game and whether she and Jordan Young were inside the ball field or outside it in an area where spectators normally are present, we cannot determine as a matter of law whether Jordan Young’s behavior while taking warmup swings was within the range of ordinary behavior of participants in little league baseball,” the court said. (Welch v. Young)

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Court nixes Bluetooth settlement, cites high attorney fees

The 9th Circuit has ordered a do over in the settlement of a class action over Bluetooth headsets that yielded $850,000 for class counsel and only $112,000 to benefit those who allegedly suffered hearing loss as a result of using the device.

“We agree that the disparity between the value of the class recovery and class counsel’s compensation raises at least an inference of unfairness, and that the current record does not adequately dispel the possibility that class counsel bargained away a benefit to the class in exchange for their own interests,” the court said in an opinion issued Friday.

The decision addressed 26 putative class actions against Motorola, Plantronics and GN Netcom that were consolidated in the U.S. District Court for the Central District of California. 

The plaintiffs alleged that the defendants failed to disclose the risk of hearing loss associated with extended use of wireless Bluetooth headsets at high volumes. The named plaintiffs sought damages on behalf of millions of individuals who purchased Bluetooth headsets since June 30, 2002.

Rather than seeking compensation for personal injury, the plaintiffs asserted economic injury claims for amounts paid for the product, between $70 and $150 per headset. 

Motorola and its co-defendants moved to dismiss, but the parties settled the case through mediation before the district court heard the motion. 

Under the terms of the settlement, the defendants agreed to: (1) post acoustic safety information on their websites and in their product manuals; (2) pay $100,000 in cy pres awards to four non-profit organizations dedicated to the prevention of hearing loss; (3) pay notice costs up to $1.2 million; (4) pay costs to class counsel up to $38,000, or if notice costs fell below $1.2 million, no more than $50,000; (5) pay attorney fees not to exceed $800,000; and (6) pay an incentive award  not to exceed $12,000, to be divided among the nine class representatives. 

Under these parameters, the district court decided to award $850,000 to class counsel for fees and costs, and the maximum $12,000 for the representative plaintiffs. 

Members of the class objected, arguing that class counsel had unfairly negotiated excessive attorney fees. 

The objectors found a sympathetic ear in the 9th Circuit. First, the court concluded that the lower court needed to do more to assure itself that the fee award was not unreasonably excessive in light of the results achieved.

“Notably, the district court made (1) no explicit calculation of a reasonable lodestar amount; (2) no comparison between the settlement’s attorneys’ fees award and the benefit to the class or degree of success in the litigation; and (3) no comparison between the lodestar amount and a reasonable percentage award. On this record, we lack a sufficient basis for determining the reasonableness of the award,” the court said. 

Moreover, in remanding the matter, the 9th Circuit concluded that there was more work to be done to ensure that class counsel had not betrayed class interests for their own benefit.

The court said that all the “warning signs” of collusion were present in the Bluetooth settlement.

In this regard, the court noted that “the settlement’s provision for attorneys’ fees is apparently disproportionate to the class reward, which includes no monetary distribution. The settlement included a ‘clear sailing agreement’ in which defendants agreed not to object to an award of attorneys’ fees up to eight times the monetary cy pres relief afforded the class. Moreover, the settlement also contained a ‘kicker’: all fees not awarded would revert to defendants rather than be added to the cy pres fund or otherwise benefit the class.”

The court concluded that “with these multiple indicia of possible implicit collusion, the district court had a special ‘obligat[ion] to assure itself that the fees awarded in the agreement were not unreasonably high.’” (In re Bluetooth Headset Products Liability Litigation

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Facebook messages kept out of criminal trial

A Connecticut man facing imprisonment for assault wants the chance to undercut a key prosecution witness with messages from the woman’s Facebook account. 

Unfortunately for him, a state court this month decided that traditional rules of evidence apply to new social media and that the disputed Facebook messages in his case couldn’t be authenticated.

Robert Eleck faces a five-year stretch in prison for allegedly stabbing Zachary Finch and Matthew Peacock in the early morning hours of December 9, 2007. The three men were guests at a party at a home in Norwalk. Finch and Peacock suffered stab wounds during the course of a wild melee outside the house.

To prove that Eleck was responsible for the stab wounds, the state produced another party guest, Simone Judway.  Judway testified that she had spoken with Eleck earlier in the evening and that he had told her that ‘‘if anyone messes with me tonight, I am going to stab them.”

Pretty compelling stuff.

Setting a trap for Judway, Eleck’s attorney on cross-examination asked the witness if she had communicated with Eleck since the incident.

Judway responded by testifying that, although she had seen Eleck in public, she had not spoken to him in person, by telephone or by computer.

The trap was sprung, or so thought Eleck and his lawyer.

In an attempt to impeach the credibility of Judway, Eleck’s lawyer sought to introduce printouts of recent messages from Judway’s Facebook account to Eleck.

Judway denied sending the messages and contended that her Facebook account had been hacked, so the issue became whether the communications could be properly authenticated.

Eleck seemed to have a strong case for the introduction of the Facebook communications since he proffered evidence that Judway had added him to her list of Facebook “friends” shortly before allegedly sending the messages, and then removed him as a friend after testifying against him at the trial.

But the trial court ultimately concluded that the messages could not be properly authenticated in light of Judway’s denials and the possibility that a hacker had been the source of the communications.

So Eleck was convicted and the case landed in the lap of the Connecticut Court of Appeals, which had to decide in the first instance whether traditional rules of evidence were flexible enough when it comes to authenticating emerging social media like e-mail, text messaging and content on networking sites such as Facebook.

In a decision issued earlier this month, the state court of appeals concluded that an “electronic document may continue to be authenticated by traditional means such as the direct testimony of the purported author or circumstantial evidence of ‘distinctive characteristics’ in the document that identify the author.”

However, the court added the proviso that “the circumstantial evidence that tends to authenticate a communication is somewhat unique to each medium.”

Turning to the disputed messages in Eleck’s case, the court concluded that the defendant simply could not overcome Judway’s claim that her Facebook account had been hacked.

“Although this suggestion is dubious under the particular facts at hand, given that the messages were sent before the alleged hacking of the account took place, Judway’s testimony highlights the general lack of security of the medium and raises an issue as to whether a third party may have sent the messages via Judway’s account. …

“Consequently, we agree with the trial court that the fact that Judway held and managed the account did not provide a sufficient foundation for admitting the printout, and it was incumbent on the defendant, as the proponent, to advance other foundational proof to authenticate that the proffered messages did, in fact, come from Judway and not simply from her Facebook account,” the court.

Eleck’s attorney took a whack at surmounting this problem by arguing that the content of the messages identified Judway as the author, noting a reference to an acrimonious history between her and Eleck.

But the court decided that this just wasn’t good enough.

“[T]his exchange could have been generated by any person using Judway’s account as it does not reflect distinct information that only Judway would have possessed regarding the defendant or the character of their relationship. …

“In other cases in which a message has been held to be authenticated by its content, the identifying characteristics have been much more distinctive of the purported author and often have been corroborated by other events or with forensic computer evidence,” the court said. (Connecticut v. Eleck

– Pat Murphy

patrick.murphy@lawyersusaonline.com

7th Circuit rebuffs class status in Aqua Dots recall

A federal appeals court yesterday upheld the denial of class certification in a lawsuit against the maker of Aqua Dots, a highly acclaimed toy that was recalled in 2007 after reports that children had become seriously ill after ingesting the colored beads.

“The principal effect of class certification, as the district court recognized, would be to induce the defendants to pay the class’s lawyers enough to make them go away; effectual relief for consumers is unlikely,” the 7th Circuit said.

Aqua Dots are small, brightly colored beads that can be fused into designs when sprayed with water.

The toy is made by Moose Enterprises of Australia and distributed in North America by Spin Master, a Canadian firm. Aqua Dots caused something of a sensation in 2007, getting various awards for being a “toy of the year” and “best toy.” 

Aqua Dots as originally designed was safe for children. Unfortunately, at some point Moose Enterprises contracted production with a Chinese company which promptly substituted 1,4 butanediol for the specified, safe adhesive previously used in the product.

When ingested, 1,4 butanediol metabolizes into gamma-hydroxybutyric acid, which can induce nausea, dizziness, drowsiness, agitation, depressed breathing, amnesia, unconsciousness, and death.

Aqua Dots aren’t meant to be ingested, but of course children can’t help themselves when it comes to brightly colored beads that bear a resemblance to candy. Children ate the Aqua Dots and became sick. At least two fell into comas.

This prompted a massive recall of 4.2 million units of the product by the U.S. Consumer Product Safety Commission in November 2007. Approximately 600,000 consumers returned Aqua Dots kits, 500,000 of those receiving refunds. 

Among the various lawsuits filed in connection with the recall were twelve lawsuits filed by plaintiffs who purchased Aqua Dots kits. These particular lawsuits involved plaintiffs who did not ask for a refund and whose children were not harmed. 

Challenging the adequacy of the recall, the plaintiffs sued Spin Master and Moose Enterprises under the Consumer Products Safety Act and state consumer-protection statutes, seeking a full refund under federal law plus punitive damages under state law.

The Panel on Multidistrict Litigation transferred the twelve suits to the Northern District of Illinois, which denied class certification.

Wednesday, the 7th Circuit agreed that class-wide relief was inappropriate.

“The per-buyer costs of identifying the class members and giving notice would exceed the price of the toys (or any reasonable multiple of that price), leaving nothing to be distributed,” the court concluded. (In re Aqua Dots Products Liability Litigation)

– Pat Murphy

patrick.murphy@lawyersusaonline.com

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