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Monthly Archives: October 2011

New trial triggered by $1 award for pain and suffering

What happens when a personal injury attorney is faced with a jury that stubbornly refuses to award damages for pain and suffering? Well, one state supreme court has decided that the only remedy may be a new trial.

The Hawaii Supreme Court reached that conclusion in the case of a boy who was struck by a car while riding his racing scooter. At approximately 7:20 a.m. on Dec. 16, 2003, young Gregory Kanahele rode his scooter into the crosswalk at the intersection of Likini and Ala Nalana Streets in Honolulu.

Kanahele was struck by a car driven James Han. According to the evidence, Han was travelling at about 15 to 20 mph when his side view mirror caught Kanahele. In the collision, the handlebar of the scooter was driven through Kanahele’s cheek. The gaping wound required extensive surgery to repair.

A jury heard Kanahele’s negligence case, allocating 45 percent of the fault for the accident to Han. The jury also found Kanahele 45 percent negligent, allocating the remaining 10 percent of the fault to Kanahele’s father, apparently for failing to properly supervise the boy.

In the first go round, the jury awarded Kanahele the full amount of his medical expenses – $12,280. But the jury refused to award any amount for pain and suffering.

Kanahele’s lawyer argued that the $0 general damages award was inconsistent with the jury’s verdict on special damages. The trial judge agreed and instructed the jury to reconsider its verdict.

But the jury was obstinate, coming back after a mere 30 minutes of deliberation with a $1 award for pain and suffering. Perhaps, when all was said and done, the jury simply thought that Han was the unfortunate victim of a child who suddenly appeared in the path of his car.

The trial court entered judgment on the jury’s new verdict, rejecting Kanahele’s request for a new trial.

Earlier this month, the Hawaii Supreme Court decided that the only solution under these circumstances was a new trial.

“Here, ‘it was inconsistent for the jury,’ to award a nominal amount of $1.00 as general damages inasmuch as ‘both special damages for medical expenses and general damages for pain and suffering are largely dependent on the same proof,'” the court said.

It explained that the “special damages ‘proof’ indicated that Gregory endured pain and suffering. The ‘uncontroverted’ evidence from [Gregory’s surgeon] demonstrated that the handlebar of a racer scooter penetrated Gregory’s cheek, and by the time he arrived at the hospital, he was in ‘mild to moderate distress and pain’ and surgery was performed. Medical invoices admitted into evidence also show that Gregory was treated for an ‘open wound,’ he had a head injury, he was given pain killers, he had numerous stitches, and he was treated over a period of almost a year.”

The state supreme court concluded that the “award of $1.00 was a nominal award that did not mitigate the zero award previously given, despite the [trial] court’s resubmittal of the damages issue to the jury. In this case the $1.00 general damages award was the symbolic equivalent of a no award verdict that the jury had previously rendered.” (Kanahele v. Han)

– Pat Murphy 


Drug evidence slipped into trial over police shooting

A Chicago police officer shot and killed a robbery suspect outside a convenience store in 2004. It turns out that the suspect had drugs secreted in his mouth at the time of death, and somehow that evidence was admitted when the officer was later sued for using excessive force.

Even though it’s hard to fathom the relevance of the drug evidence, the 7th Circuit yesterday decided that a defense verdict in favor of the officer and city should stand.

On Nov. 18, 2006, Officer Guy Nelson and his partner, Officer Sean O’Brien, visited a convenience store on the south side of Chicago that had been robbed multiple times by the same suspect. The store owner complained that police never arrived in time when he called, so Nelson gave the owner his cell phone number in case the suspect showed up again.

Later that afternoon, the owner called Nelson to tell him that the robbery suspect was in his store, along with two other young African-American men. The officer and his partner responded immediately, arriving just in time to see three men matching the owner’s description exit the store.

According to the officers, they ordered the three men to stop. Two of the men complied, but the third man, Michael Smith, tried to walk away and refused to show his hands when ordered to do so.

Nelson testified that he drew his weapon when Smith continued to head away from the scene. At that moment, according to Nelson, Smith turned and grabbed at the officer’s handgun. Nelson testified that he felt Smith’s hand grab for his wrist and pull forward. Fearing that Smith was about to take his gun and turn it on him, Nelson fired one shot into Smith’s chest. The young man died shortly thereafter.

Smith’s family sued Nelson and the city of Chicago, claiming that the officer used excessive force. Before trial, the plaintiffs sought to exclude evidence that the medical examiner who performed the autopsy had discovered five small plastic bags of cocaine in Smith’s chest cavity and trachea.

The medical examiner concluded that the packets had been secreted in Smith’s mouth at the time of the shooting, and had moved to other parts of his body as a result of Smith’s death struggles or during the autopsy.

Now, since there was no evidence that the officers had any inkling that Smith had drugs on his person, the plaintiffs argued that the drug evidence was wholly irrelevant. The plaintiffs certainly didn’t want jurors to hear evidence that might lead them to think that Smith was perhaps a “bad guy” who somehow had what was coming to him.

But the district court allowed the evidence and the jury returned a defense verdict.

Thursday, the 7th Circuit concluded that the trial judge acted within his discretion in allowing the evidence.

Right off the bat, the court confessed that the admission of the drug evidence was troublesome, particularly in light of prior 7th Circuit decisions holding that knowledge gained after the fact should not be considered by jurors in deciding whether a police officer acted reasonably in resorting to deadly force.

“Taken at face value, these holdings would seem to indicate that the evidence of drugs in Smith’s body should not have been admitted at trial,” the court conceded. “After all, Officer Nelson did not and could not have known that Smith was hiding drugs in his mouth at the time he opened fire.”

But the court found a path through its own precedent to arrive at the conclusion that the trial judge did not abuse his discretion. The key was the plaintiffs’ presentation of eyewitness testimony contradicting Officer Nelson’s claims that Smith failed to raise his hands and stop after he warned, “stop, police.”

The 7th Circuit concluded that evidence that Smith had drugs on his person was properly admitted to impeach that testimony, bolstering the police officer’s contention that the suspect did not follow his directions.

“Just as evidence of a gun would make it more likely that an officer saw a shiny metallic object in a suspect’s hand, evidence of the drugs secreted in Smith’s airway made it more likely that Smith acted as Officer Nelson testified, as opposed to the manner in which plaintiffs’ witnesses testified. Smith’s behavior was, after all, not ordinary behavior for a person encountering the police,” the court said. (Common v. Chicago)

– Pat Murphy


Lawyer denied damages for attack in mental hospital

Being a public defender can be a thankless job, even when you’re not being slapped around by a mentally deranged client.

It seems a shame that Lorraine Gormley won’t be getting something after being attacked by a client at the Ancora Psychiatric Hospital in Hammonton, New Jersey.

Ancora is a 600-bed adult inpatient facility. As you can imagine, the patients at the state-run facility are dealing with severe mental health issues, the majority being involuntarily committed. Some are violent.

Back in 2005, Gormley was employed by the New Jersey Department of the Public Advocate, specifically in the Division of Mental Health Advocacy. Her job was to represent clients with mental illnesses in connection with their commitment to psychiatric hospitals.

On Sept. 22, 2005, Gormley went to Ancora to interview several clients in preparation for upcoming court hearings. That day, Gormley had an interview with B.R.

According to court records, B.R. had been admitted to Ancora 16 days earlier and had been identified by hospital staff as requiring “close visual observation” (CVO), meaning someone was supposed to keep an eye on her at all times. Unfortunately, no one informed Gormley that B.R. was a special risk.

Moreover, when Gormley sat down with B.R. at a small table in a hospital day room, there were no staff members close enough to intervene if B.R. suddenly turned violent.

Sure enough, during the course of the interview, B.R. without warning attacked Gormley, striking her in the face. Gormley attempted to escape her client’s reach, but B.R. grabbed her by the hair, pulling the lawyer backwards until her head hit the floor.

According to Gormley, staff members in the room failed to come to her rescue immediately, instead simply encouraging the lawyer to kick B.R. to stop the attack. B.R. was finally pulled off Gormley, but not before the lawyer had been injured to the point of lapsing in and out of consciousness.

Gormley claimed that she suffered emotional as well as physical injuries from the attack and filed a §1983 claim against hospital officials and the state. According to Gormley’s complaint, that defendants violated her substantive due process right to be free from a state-created danger. In particular, she complained that hospital officials failed to warn her of B.R.’s status and failed to provide her with a safe environment to interview her client.

Bolstering her claim was Ancora’s history of similar problems. Between October 2003 and December 2005, there were 3,848 confirmed assaults, 810 involving assaults upon staff or visitors. At least 200 of the attacks resulted in injuries.

Despite this evidence, the state defendants claimed they were immune, and appealed to the New Jersey Superior Court, Appellate Division, when a state trial court denied their motion for summary judgment on that basis.

Tuesday, the state appeals court decided that the defendants were entitled to qualified immunity.

The court agreed with Gormley that she had stated a viable claim for a violation of constitutional rights under a state-created danger theory.

“Defendants were acutely aware of the history of assaultive behavior by its patients against not only other patients and staff, but also upon visitors such as plaintiff. Yet, defendants failed to take appropriate measures to safeguard individuals such as plaintiff from physical attack,” the court said.

Though winning that battle, Gormley lost her war because the court went on to decide that her constitutional right was not “clearly established” at the time, thereby immunizing the state defendants from liability.

“Applying a particularized analysis to the present matter, we observe that cases recognizing a state-created danger theory of constitutional liability have heretofore typically involved affirmative acts on the part of government officials, which placed the plaintiffs in a position of danger distinct from that facing the public at large. …

“Here, defendants did not engage in any affirmative acts to create the dangerous condition. Rather, it was defendants’ full knowledge of, but deliberate indifference to, the foreseeable risk of harm to plaintiff that is at issue,” the court explained.

In granting qualified immunity, the court turned aside Gormley’s contention that hospital officials had a special duty to protect her in light of her status as a public defender engaged in the protection of the constitutional rights of hospital patients.

The court explained that Gormley “was a private citizen, but at the same time a private citizen whose liberty to perform her legal representation was restrained because of the unique circumstances that attended her provision of those constitutionally-mandated legal services to confined mental patients. She performed her legal representation at a location and in an environment completely controlled by defendants. … 

“The ‘contours of [her] right’ in this essentially hybrid status were not clearly articulated at the time of her attack and continue to remain unclear, not having been addressed by the Supreme Court or our Court.”

Consequently, the court said, “there is no basis to conclude that defendants reasonably understood or should have understood that their policies and practices regarding attorneys representing Ancora patients violated plaintiff’s Fourteenth Amendment substantive due process right to security in the performance of her legal representation. Therefore, defendants are entitled to qualified immunity.” (Gormley v. Wood-El)

– Pat Murphy


Med-mal jury won’t hear about patient’s cocaine use

A Colorado man suffered permanent brain damage after having an allergic reaction to a needle biopsy. His doctors claim that the man’s cocaine use may have something to do with his injury, but the third jury to hear the medical malpractice case will not hear evidence of illegal drugs.

The injured patient is Vasilios Haralampopoulos. On Nov. 23, 2004, Haralampopoulos went to a Denver-area emergency room, complaining of severe abdominal pain. Tests disclosed a cyst on his liver and the surgeon on call ordered a needle biopsy of the cyst for the following day.

In preparation for the procedure, Dr. Mauricio Waintrub, the internist on call, took the patient’s medical history, but did not ascertain the cause of the cyst.

Dr. Jason Kelly performed the needle biopsy. Shortly after the cyst was pierced, Haralampopoulos suffered a severe allergic reaction, became hypoxic, and stopped breathing. Doctors were unable to revive Haralampopoulos in time to prevent permanent brain damage.

Haralampopoulos’ guardian sued Waintrub and Kelly, alleging that they were negligent in failing to determine the nature of the cyst before the needle biopsy. According to the guardian, had the nature of the cyst been determined beforehand, doctors would have known that there was a risk that spillage of the cyst’s contents would lead to anaphylactic shock.

The doctors, on the other hand, contended that the reason Haralampopoulo could not be revived in time to prevent brain damage was because he was a user of cocaine.

According to Kelly, in a sit down with family and friends about a week after the incident, it was disclosed that Haralampopoulos had used cocaine in the past.

Moreover, Kelly said that Haralampopoulos’ former girlfriend, Lori Hurd, later approached him and told him that Haralampopoulos was a recreational cocaine user who had been taking a significant amount of the illegal drug to control his abdominal pain.

Hurd later denied making these statements, but Kelly was permitted to testify about what the girlfriend allegedly said about cocaine use at trial. The trial court concluded that Kelly’s testimony was admissible under the hearsay exception for statements made in the course of medical diagnosis.

Now, Haralampopoulos’ relatives lined up to say that the young man’s cocaine use, if any, was casual and far in the past. In other words, he wasn’t using cocaine at the time of his medical emergency.

But Kelly’s testimony about what Lori Hurd had said was damning and, after a mistrial for an unrelated reason, a second jury returned a defense verdict.

Last week, the Colorado Court of Appeals decided that the hearsay rule barred Kelly’s testimony about what Hurd had said, concluding that it did not fall within the medical diagnosis exception given that for all intents and purposes Haralampopoulos was not a patient of Kelly’s following the biopsy gone wrong.

What’s more, the court concluded that other evidence that Haralampopoulos may have been a cocaine user in the past was also inadmissible.

“The introduction of hearsay testimony about remote drug use threatened to, and in our view did, derail the trial proceedings,” the court said. “The cocaine use issue – as dated and unreliable as the evidence was – was the centerpiece of Waintrub’s and Kelly’s defense. Rebutting that cocaine use was the reason for plaintiff’s vegetative state became guardian’s focus at trial.”

So the doctors face a new trial, their third.

Judge John R. Webb had more than a few quibbles with this result. In his dissent, Webb said “the majority mischaracterizes the hearsay at issue as a statement of blame and applies an overly narrow approach to the diagnostic process.”

He concluded that the “content and context of the statements that Dr. Kelly attributed to Ms. Hurd are consistent with her desire to provide information that could lead to discovery of the medical cause why plaintiff was not resuscitated more quickly. Although the permanence of plaintiff’s brain injury when Ms. Hurd allegedly spoke would permit a different inference, because the record provides some support for the trial court’s discretionary determination, it should stand.” (Haralampopoulos v. Kelly

– Pat Murphy 


‘Spiteful’ dad can’t block grandparent visitation

A father may have good reasons to keep his children from seeing their grandmother. But a California court decided yesterday that one dad couldn’t wield the constitutional rights of a fit parent in a petty effort to settle a personal score.

Troxel commands the courts to presume that the surviving parent’s objection to grandparent visitation is in the best interest of the children,” said the California Court of Appeal in Hoag v. Diedjomahor. “However, this does not mean that the surviving parent is free to use the denial of visitation as Big Bertha in his or her personal war with the grandparent.” 

Melville Diedjomahor’s two daughters were born during his rocky four-year marriage with Kristen Hoag. The couple was in the process of getting a divorce when Kristen died suddenly in 2009 as a result of previously undiagnosed epilepsy. 

Shannon Hoag, Kristen’s mother, had been a member of the household from the beginning of the marriage, often acting as a third parent to her grandchildren. So when Kristen died, Shannon filed for guardianship, claiming that Melville was an unfit father.

Naturally, this ruffled Melville’s feathers. So when he succeeded in fending off Shannon’s guardianship petition, he was in no mood to allow his two daughters to have visitation with their grandmother.

And Melville had a strong hand to play because, under the landmark case of Troxel v. Granville, his wishes in this regard were presumed to be in the best interest of his children.

But the problem with Melville’s opposition to Shannon’s petition for grandparent visitation was that, other than spite, there was no reason to deny his children from having regular contact with their grandmother.

Besides, the kids loved their grandma.

The trial court saw this plain as day and granted Shannon visitation with her granddaughters for three hours every Wednesday evening and 48 hours every other weekend, plus twice weekly  phone calls.

Monday, the California Court of Appeal agreed that Shannon had overcome the Troxel presumption necessary to override Melville’s objections to grandparent visitation.

The court observed that Melville “testified that he was contesting visitation because [the grandmother] had breached his trust by trying to take the children away from him, and she had been ‘disrespectful’ to him. We hasten to add that this is a completely understandable reaction. Nevertheless, it is not based on the best interest of the children. To the contrary, it punishes the children for the sins of the grandmother. …

“The trial court found that the father’s objections to visitation did not arise out of a genuine concern for the best interest of the children. Thus, the constitutionally established presumption that he was acting in the best interest of the children was overcome.”

– Pat Murphy


Comp denied for PTSD caused by robbery

When getting robbed at gunpoint is ruled a “normal” part of the job, perhaps it’s time for a career change.

Gregory Kochanowicz in fact claims that he is no longer fit to work in any capacity after being the victim of an armed robbery in 2008.

Kochanowicz has been employed by the Pennsylvania Liquor Control Board for over 30 years. On the evening of April 28, 2008, he was working as manager of the state liquor store in Morrisville when a masked man brandishing two guns stepped through the front door.

The gunman duct taped Kochanowicz and a coworker to chairs. After emptying the cash register and an office safe, the gunman left with his loot.

Although no one was physically harmed during the armed robbery, seared into Kochanowicz’s brain was the memory of being prodded in the back of the head with a gun. Kochanowicz claimed that he suffered anxiety, depression, and flashbacks following the robbery. A clinical psychologist verified the psychic injury, diagnosing Kochanowicz with post-traumatic stress disorder (PTSD).

Unable to return to work, Kochanowicz filed a claim for total disability benefits with the state workers’ compensation commission. The commission granted the claim for a work-related psychic injury.

The state liquor control board contested the award. A psychiatrist hired by the employer to evaluate Kochanowicz confirmed the PTSD diagnosis, but concluded that his condition had improved to the point that it could no longer be considered a mental disorder. In sum, the psychiatrist concluded that Kochanowicz was fit enough to return to work.

Last month, the Pennsylvania Commonwealth Court reviewed the case. Under state law, a workers’ compensation claimant asserting a psychic injury must prove that he “was exposed to abnormal working conditions and that his psychological problems are not a subjective reaction to normal working conditions.”

The court overturned Kochanowicz’s award, taking the somewhat curious tack that Kochanowicz’s psychic injury was the result of “normal” working conditions.

The court explained the employer “presented uncontested evidence that there had been 99 robberies of its southeastern Pennsylvania retail stores since 2002, which equates to 15 robberies per year or more than one per month. There had been four retail liquor store robberies in close proximity to Claimant’s store within just weeks of the robbery in this case. …

“Unfortunately, given the frequency Employer’s stores had been robbed and the proximity of the recent incidents, robberies of liquor stores are a normal condition of retail liquor store employment in today’s society, and the Board erred in holding otherwise.” (Liquor Control Board v. Kochanowicz

There’s a certain logic to the court’s decision, but it seems a bit of a stretch to conflate foreseeability with normalcy. Sure, we take it for granted that liquor stores in today’s society are prime targets for robbery, but that doesn’t mean we should deem robbery a normal part of the job when considering workers’ compensation benefits.

I’d take bets right now that this decision gets overturned.

– Pat Murphy 


Sun glare doesn’t qualify as driving ‘emergency’

You’d think there would be some rule of law absolving a driver who runs down a pedestrian he did not see because of sun glare.

But according to a decision rendered yesterday by New York’s highest court, you can strike the “sudden emergency” doctrine from the unfortunate driver’s list of available defenses.

We’ve all been there. Cruising along, happy as a clam, when all of the sudden the direction of your car and the angle of the sun suddenly coincide to render you helplessly blind for a moment.

What if in that moment another vehicle crosses your path or some other hazard appears in the roadway? Surely the fact that you were momentarily blinded will relieve you of liability for an accident, right?

The emergency doctrine won’t be of assistance to Derek Klink, who has been sued for the wrongful death of Irene Lifson. Both Klink and Lifson worked in the MONY Plaza office complex in Syracuse.

On Feb. 29, 2000, Klink left work around 4:00. After getting his car, Klink was faced immediately with the problem of making a left-hand turn from Harrison Place onto Harrison Street during rush hour.

Harrison Street is a three-lane, one-way road, with traffic running from east to west. Harrison Place intersects Harrison Street from the south, forming a “T” intersection. The intersection is only controlled by a stop sign for traffic emerging from Harrison Place.

At approximately 4:05, Klink was at the stop sign, creeping into the intersection, waiting for a gap in the Harrison Street traffic to make his left turn, According to Klink, he checked left and saw no pedestrians trying to cross the intersection, and then checked the oncoming Harrison Street traffic to his right.

Seeing the chance to make his turn, checked left one more time. Klink claims that, in the middle of his turn, he was blinded “all of the sudden” by the low, late-afternoon February sun. He looked down momentarily to avoid the glare.

Unfortunately, at that moment Lifson was crossing Harrison Street, right in Klink’s intended path. The woman was killed when Klink saw her too late to avoid her.

Alexander Lifson, the dead woman’s husband, sued both Klink and the city of Syracuse for negligence. The city’s alleged liability was premised on the absence of a safe, marked pedestrian crossing at the intersection, despite it being regularly used by office workers trying to get from MONY Plaza to a parking garage on the opposite side of Harrison Street.

For his part, Klink argued that the sun glare was a sudden and unforeseen occurrence that relieved him of liability for negligence. At Klink’s request, the trial judge issued an instruction on the emergency doctrine, telling jurors that they were obliged to return a defense verdict if they found that Klink was in fact faced with an emergency situation not of his own making and acted reasonably in response that emergency.

With this instruction, the jury found that Klink was not negligent. The jury also found Irene Lifson 15 percent at fault for her own death, with remaining 85 percent allocated to the city.

Lifson’s husband argued on appeal that Klink never should have had the benefit of the emergency doctrine. Thursday, the New York Court of Appeals agreed that the emergency doctrine was not available to Klink as a defense.

“Klink was about to turn to the west at a time of day that the sun would be setting. It is well known, and therefore cannot be considered a sudden and unexpected circumstance, that the sun can interfere with one’s vision as it nears the horizon at sunset, particularly when one is heading west. …

“This is not to say that sun glare can never generate an emergency situation but, under the circumstances presented, there is no reasonable view of the evidence under which sun glare constitutes a qualifying emergency,” the court said. (Lifson v. City of Syracuse)

So it looks as though Klink will be facing a new trial, this time without the benefit of a formal legal theory to hang his “sun got it my eyes” claim.

This seems rather unfortunate given that the jury plainly believed Klink when he testified that sun glare prevented him from seeing Lifson in time. Why the redo, particularly when we’re talking about a pedestrian who was killed trying to cross a busy street during rush hour at a location where there was no marked crosswalk?

– Pat Murphy


Driver distracted by cell phone gets workers’ comp

The travails of on-call and work-at-home employees are presenting workers’ compensation attorneys with all sorts of novel challenges. 

By way of example, let’s take the recent case of a travelling nurse who crashed her car when she took her eyes off the road to check her cell phone.

The mishap involved Donna Turpin, who worked weekends as a hospice nurse for Wythe County Community Hospital in western Virginia. Turpin generally worked out of her car, with the hospital reimbursing her for mileage accrued visiting patients.  

Turpin’s job had her on call from 4:30 p.m. on Fridays until 8:00 a.m. on Monday mornings. While the hospital normally contacted Turpin using a pager, when that device wasn’t working (which according to Turpin was quite often), the hospital contacted the nurse on her personal cell phone.

According to Turpin, these basic facts of her employment are the underlying reasons why she is entitled to workers’ compensation for injuries suffered when she drove her car off a mountain road on Nov. 7, 2009.

It had been a busy Saturday for Turpin. The early portion of the day had been spent visiting the homes of four patients. Later, she had mandatory in-service training at the hospice office.

Around 8:15 p.m., Turpin was driving home from the training seminar through a portion of the Shenandoah Mountains. Her trip home qualified for mileage reimbursement from the hospital.

Turpin had her cell phone in the front pocket of her nursing uniform as she drove. The front face of the cell phone suddenly illuminated. Thinking her employer was trying to call her, Turpin looked down momentarily.

The distraction was enough for her car to drift into a patch of gravel. The car’s tires slid when they caught the gravel, and Turpin lost control of the vehicle, striking a bank on the other side of the road.

Turpin applied for workers’ compensation medical benefits, but the hospital opposed the claim, contending that the nurse’s injuries did not arise out of her employment. The state workers’ compensation commission disagreed and awarded benefits.

This month, the Virginia Court of Appeals decided that Turpin had the better of the argument.

The court said that Turpin’s “response to the illumination of her telephone was more than ‘an impulsive respons[e] to an unexpected stimulus,’ as the employer argues. Rather, her response stemmed from her particular attentiveness to the distinct requirements of her job, specifically, that she carefully monitor her cell phone for calls from her employer during the times that she was on call.”

In upholding the award of benefits, the court said it really didn’t matter in the final analysis that the cell phone call that triggered Turpin’s accident turned out not to be work-related.

The court explained that the “test is not whether an actual call was from the employer, but whether an injury can ‘fairly be traced to the employment as a contributing proximate cause.’ When Turpin’s cell phone illuminated, she naturally looked down to determine whether that illumination was a call from her employer that she needed to answer. Her job required her to monitor her cell phone at all times, including while driving. …

“We conclude that the commission correctly found, on these specific facts, ‘the causal connection between the claimant’s injury and the conditions under which the employer require[d] the work to be performed.’” (Wythe County Community Hospital v. Turpin

– Pat Murphy


Is sex by blackmail ‘rape’?

A Kansas woman testified that the only reason she agreed to have sex with her ex-husband was to prevent his disclosure of an embarrassing extramarital affair. Did the ex-husband commit rape?

Some states have amended rape statutes to encompass sex by extortion. Kansas is not one of those states. So the question boiled down to whether prosecutors could show that the ex-husband overcame his victim by “force or fear.”

The facts are these. George Brooks and J.P. divorced in 2006 after a ten-year marriage.

According to prosecutors, shortly after the divorce was final, Brooks accessed J.P.’s e-mail account, apparently intent on stirring up trouble for his ex-wife. Brooks hit pay dirt, finding e-mails showing that J.P. was having an extramarital affair with a coworker at her work.

On May 7, 2006, Brooks telephoned J.P. to reveal he had copies of the e-mails. To make his point, Brooks read portions of the revealing messages over the phone, making J.P. sick to her stomach. According to J.P., Brooks concluded the telephone call by saying he would be coming over to her house for sex that evening.

As promised, Brooks arrived at J.P.’s home around 8:30. Brandishing a folder containing copies of the embarrassing e-mails, Brooks threatened revealing the affair to J.P.’s employer and to her coworker’s wife if she did not do as he said.

According to J.P., she made clear that she did not want to have sex and it would be against her will. This made no difference to Brooks, though, and he ordered J.P. to take off her underwear.

J.P. submitted after Brooks allegedly became “agitated” with his ex-wife’s objections.  She sat in a chair with her hands over her face and her eyes closed while Brooks had intercourse with her. After the act was done, Brooks proclaimed that it had all been a “test” and he would be back later in the week for more sex.

Why did J.P. submit to Brooks? At trial, J.P. failed to characterize Brooks’ agitation. Nor did J.P. testify that she thought Brooks would have physically harmed her had she refused.

Apparently, it all boiled down to avoiding embarrassment and her fear that the atmosphere of her workplace would be  poisoned by the disclosure of the affair.

But with the threat of a repeat performance, J.P. contacted her lawyer who told her to call police. Officers arrested Brooks, who was charged with rape, two counts of blackmail, and breach of privacy.

A jury found Brooks guilty of those charges and he was sentenced to 155 months in prison on the rape conviction, 12 months in prison on each blackmail conviction, and 12 months in the county jail on the breach of privacy conviction.

The rape conviction was the big ticket item, so naturally it was the focus of Brooks’ appeal. 

Friday, the Kansas Court of Appeals concluded that, no matter how evil, Brooks’ actions did not fit within the state’s definition of a rape offense. Specifically, the court determined that the fear engendered by Brooks’ threatened disclosure of an embarrassing affair was not of a kind that would support a finding that he overcame J.P. by “force or fear” within the meaning of the state’s rape law.

The court explained that the “emotional impact of the disclosure on J.P. may have been substantial. She certainly thought it would be; she submitted to Brooks’ demand for sex to avoid precisely that possibility. We do not diminish those considerations. …

“But the threat Brooks made did not involve any present or future application of force and, in turn, the response it provoked in J.P., however disquieting or upsetting, did not constitute fear of the sort that supports a rape charge under the Kansas law. As a result, the jury’s verdict rests on insufficient evidence to demonstrate the statutory elements of rape.” (Kansas v. Brooks

So the court overturned Brooks’ rape conviction. The court tacked on a minor victory for Brooks, finding that the man did not “intercept” a communication within the meaning of the state’s breach of privacy law by copying e-mails J.P. had sent more than 6 months earlier.

The result leaves Brooks facing only a two-year prison term on his blackmail convictions, which hardly seems right. The court agreed, confessing that it was “dismayed” by the result, while explaining that it felt constrained by the black letter law.

“The outcome leaves J.P. without a full measure of justice for what Brooks did to her in this case,” the court admitted, called for new legislation to cure the deficiency in the law. 

“The criminal code simply does not speak directly to the criminality of threatening to invade a person’s privacy or to expose him or her to public ignominy as a means of extracting sexual relations,” the court explained. “The code fails to consider the intersection of those two strands of antisocial behavior to carry out a single criminal endeavor.”

— Pat Murphy


Pilot gets Pyrrhic victory in ERISA retaliation suit

It’s a classic good news/bad news story for a former Northwest Airline pilot who lost his job after getting caught with marijuana.

The good news is that federal courts could hear his ERISA retaliation suit – despite the airline’s strident protest to the contrary. The bad news? Well …

The fate of Caleb R. Sturge and his disability retirement benefits was decided Friday by the 8th Circuit.

 Sturge had placed his benefits in jeopardy by being arrested for possession of marijuana on Oct. 17, 2003. According to court records, Sturge admitted to possessing and using marijuana, so that was not the issue.

The real problem, of course, was that Northwest pilots like Sturge were subject to a drug policy that prohibited the possession of controlled substances. So Northwest (since merged into Delta Airlines) terminated Sturge on Oct. 31, 2003.

The timing could not have been worse for Sturge because he had applied for disability retirement benefits with the Northwest Airlines Pension Plan for Pilot Employees. What’s more, he was two months short of 15 years of employment with Northwest, the magic number for qualifying for full benefits.

So while the plan ultimately awarded Sturge disability retirement, his benefits were not nearly as generous as they would have been had he been employed the full 15 years with Northwest.

Sturge’s termination was upheld under the grievance procedure authorized by Northwest’s collective bargaining agreement with the Air Line Pilots Association. Since he was not getting his job back, Sturge’s only shot at getting full pension benefits was suing under§510 of ERISA, claiming that Northwest retaliated against him for claiming ERISA-protected benefits and/or interfered with his receipt of those benefits.

Northwest countered that federal courts lacked subject matter jurisdiction of Sturge’s ERISA lawsuit because, at bottom, it involved matters subject to collective bargaining. More specifically, Northwest contended that Sturge’s claim was a “minor” dispute subject to the arbitration requirement of the Railway Labor Act. Oddly enough, the Act governs labor relations in the airline industry.

Last week, the 8th Circuit rejected the airline’s argument, affirming the district court in this regard.

In finding subject matter jurisdiction, the federal court of appeals explained that “Sturge argues only that Northwest acted with an improper purpose: to retaliate against him for claiming ERISA-protected benefits, or to interfere with his receipt of those benefits. …

“The questions whether Sturge is entitled to benefits despite his termination, and whether the termination was proper under the CBA, are therefore irrelevant to the resolution of Sturge’s claims. Similarly, a judgment in Sturge’s favor will not undermine the decision of the system adjustment board, which held only that the termination was authorized under the CBA.”

While this decision is helpful to other similarly situated ERISA plaintiffs, in the end it didn’t matter in Sturge’s case because the court went on to find that the evidence in the record showed that Northwest acted with a lawful purpose when it terminated the pilot.

“Company policy provides that Sturge’s conduct was ‘grounds for immediate discharge,’ and the [grievance] system board upheld the company’s position that he was not eligible for an exception. …

“That [a company decision-maker] also may have learned around the same time that Sturge had a pending application for disability retirement is not a sufficient basis to infer that the termination was caused by anything other than a clear violation of the company’s drug policy that called for immediate discharge,” the court said. (Sturge v. Northwest Airlines)

Friday’s decision by the 8th Circuit leaves one question unanswered: Why would Sturge stupidly jeopardize his sweet airline pilot gig by indulging in marijuana? 

– Pat Murphy