Lawyers USA back issues from July 2008:
11th Circuit: Teacher can bring [section]1981 claim
Jul 14, 2008 ... The two-year statute of limitations governing [section]1983claims does not bar a teacher's claim that his school violated[section]1981, the 11th Circuit has ruled in denying summaryjudgment for the school. More than two years after he wasterminated, a teacher filed suit claiming that he ...
California Court of Appeals: DUI defendant entitled to 'involuntary intoxication' instruction
Jul 14, 2008 ... A defendant convicted of driving under the influence was entitledto an instruction on the defense of "involuntary intoxication" dueto prescription medications, the California Court of Appeal hasruled. The defendant was convicted of DUI after causing twoaccidents. Several ...
10th Circuit says wrongful death claim can be removed to federal court
Jul 14, 2008 ... The wrongful death claim a farmer's widow filed in state courtagainst a tractor manufacturer was properly removed to federalcourt, the 10th Circuit has ruled. The widow claimed that thetractor's defectively designed circuitry forced her husband tobypass it, which was a common occurrence ...
Colorado Supreme Court says debtor's insurance payments not subject to garnishment
Jul 14, 2008 ... A personal injury defendant's disability insurance payments werenot subject to garnishment because an exemption for those benefitswas not challenged in his bankruptcy case, the Colorado SupremeCourt has ruled. The defendant was a chiropractor who treated andlater employed the two ...
California Court of Appeal: Credit card privacy law doesn't apply to merchandise returns
Jul 14, 2008 ... A consumer protection law prohibiting merchants from obtainingconsumers' personal information for credit card transactions doesnot apply to refunds and returns, the California Court of Appeal hasruled. The consumer tried to return a gas cap he had just purchasedfrom an automotive parts ...
9th Circuit finds employee can recover under FMLA for depression resulting from denial of leave
Jul 14, 2008 ... An employee is entitled to damages under the Family and MedicalLeave Act for time missed due to depression caused by a denial ofleave, the 9th Circuit has ruled. The employee suffered fromseveral diagnosed medical conditions, including diabetes and asthma.But his employer denied his ...
California Supreme Court: Jury needn't determine sentencing factors
Jul 14, 2008 ... A defendant is not entitled to a jury's determination of thefactors that a judge may consider in sentencing, including priorconvictions and facts relating to charges of which the defendant wasacquitted, the California Supreme Court has ruled. The defendantwas charged with multiple ...
Oregon Court of Appeals says warrant required to view defendant's videotapes
Jul 14, 2008 ... A warrant was required for police to view videotapes from arestaurant's ladies room turned over by a restaurant owner'semployee who had viewed them, the Oregon Court of Appeals has ruledin granting a motion to suppress. The employee discovered severalvideotapes containing images of ...
Colorado Court of Appeals says legal malpractice suit must be filed as counterclaim
Jul 14, 2008 ... A client lost the chance to sue a law firm for malpractice whenshe failed to file a counterclaim for negligence at the time thefirm sued her to collect its fees, the Colorado Court of Appeals hasruled in affirming summary judgment. The plaintiff was an officerand minority shareholder of ...
1st Circuit: No benefits for widow of drunk driver
Jul 14, 2008 ... An ERISA plan administrator's decision to deny death benefits tothe widow of an employee was reasonable where the employee diedwhile driving with a blood alcohol level of three times the legallimit, the 1st Circuit has ruled. The husband died after drinkingat a company luncheon and boat ...
Virginia Court of Appeals says divorcing couples can bargain away appeal rights
Jul 14, 2008 ... A no-appeal clause in a divorcing couple's property settlementagreement does not violate public policy, the Virginia Court ofAppeals has ruled. A husband and wife divorced soon after signing aproperty settlement agreement stating that disputes arising underthe agreement would be decided ...
3rd Circuit finds hospitals can charge uninsured patients more
Jul 14, 2008 ... Uninsured patients can't sue a hospital for charging them morethan insured patients or those covered by Medicare and Medicaid, the3rd Circuit has ruled. The hospital was part of a not-for-profithealth care system that accepted discounted payments from variouspayers, including Medicare ...
Texas Supreme Court says comparative negligence law may bar wrongful death claim
Jul 14, 2008 ... A state's comparative negligence statute may bar a wrongful deathplaintiff's claim against a city contractor that installed thetelephone equipment her son used to hang himself with in jail, theTexas Supreme Court has ruled. The plaintiff sued the city forwrongful death. She also filed a ...
U.S. District Court in New Jersey says intent to harm required for software claim
Jul 14, 2008 ... A company is not liable under the Computer Fraud and Abuse Actfor selling software that damaged a business' computers withoutproof that the software company intended to cause harm, a U.S.District Court in New Jersey has ruled. The plaintiff was abusiness that used an older version of ...
Texas Supreme Court rules church member can't sue for exorcism
Jul 14, 2008 ... A church member who claimed she was injured as the result of anexorcism can't sue - her claim is barred by the First Amendment, theTexas Supreme Court has ruled. The plaintiff was a 17-year-oldmember of a Pentecostal church who collapsed and began writhing onthe floor during several ...
Washington Court of Appeals says student has expectation of privacy in dorm hallway
Jul 14, 2008 ... A college student has a reasonable expectation of privacy in adormitory hallway, and therefore evidence seized in a warrantlesssearch was not admissible, the Washington Court of Appeals hasruled. Police responded to a call from a student about the theft of hislaptop and guitar ....
3rd Circuit says home lien not invalidated by bankruptcy plan
Jul 14, 2008 ... A Chapter 13 debtor couldn't invalidate a lien on her home merelyby listing it as an unsecured claim in her confirmed bankruptcyplan, the 3rd Circuit has ruled in affirming judgment. The debtorused her home as collateral for a $25,600 loan. The mortgagerelating to the loan was recorded ...
U.S. District Court in Illinois says filing time-barred claim violates Fair Debt Act
Jul 14, 2008 ... A debt collector may be liable under the Fair Debt CollectionPractices Act for filing suit against a debtor on a collection claimthat was time-barred by state law, a U.S. District Court in Illinoishas ruled in denying summary judgment for the debt collector. TheNew Jersey-based debt ...
U.S. District Court in New York says home-business owners' loan covered by Truth in Lending Act
Jul 14, 2008 ... Homeowners claiming a mortgage bank violated the Truth in LendingAct are not precluded from coverage under the Act's "businesspurposes" exemption even though they ran a daycare business in thehome they mortgaged, a U.S. District Court in New York has ruled. The homeowners took deductions ...
U.S. District Court in Ohio says union employee's FMLA claim may proceed
Jul 14, 2008 ... A collective bargaining agreement's grievance procedure does notbar a fired employee from filing a Family and Medical Leave Actclaim in court, a U.S. District Court in Ohio has ruled in denyingthe employer summary judgment. The employee injured his back on thejob and received his ...
California Court of Appeal: Insurer must defend pool injury case
Jul 14, 2008 ... An injury caused by roughhousing near a pool is a covered"accident" for insurance law purposes, the California Court ofAppeal has ruled. Two young men attending a party began to argue.The insured grabbed the other man and attempted to throw him into aswimming pool. However, the man ...
D.C. Circuit rules officer beaten by colleague has [section]1983 claim
Jul 14, 2008; ... An off-duty police officer who was kicked in the groin by anofficer who mistook him for a fleeing drug suspect can sue forpolice brutality, the D.C. Circuit has ruled in reversing a summaryjudgment for the government. The off-duty officer unwittingly gaverefuge to a drug dealer who was ...
Tennessee Supreme Court rules employer can't question injured worker's doctor
Jul 14, 2008; ... An employer is not entitled to communicate ex parte with anemployee's treating physician under a state workers' compensationstatute without first obtaining a waiver of the implied covenant ofconfidentiality, the Tennessee Supreme Court has ruled. Two yearsafter retiring from his job of ...
D.C. Circuit rules unzipping suspect's jacket violated privacy
Jul 14, 2008; ... Police violated a robbery suspect's Fourth Amendment rights bypartially unzipping his jacket to help a witness identify him, theen banc D.C. Circuit has ruled in reversing a panel decision. Police received a broadcast to be on the lookout for an armed robberwearing clothing similar to ...
Kansas Supreme Court rules juveniles are entitled to jury trials
Jul 14, 2008; ... Juvenile offenders are entitled to jury trials under the Sixthand Fourteenth Amendments, as well as the state constitution, theKansas Supreme Court has ruled. A 16-year-old was convicted ofaggravated sexual battery and illegally possessing alcohol after abench trial, which was held ...
Wyoming Supreme Court rules assignment makes attorney liable for client's hospital bills
Jul 14, 2008; ... An attorney can be sued by his client's medical provider forfailing to honor his client's assignment of the proceeds from apersonal injury settlement, the Wyoming Supreme Court has ruled. The client received medical treatment after getting injured in amotor vehicle accident. He hired two ...
Arizona Court of Appeals rules state law qualifying med-mal experts is unconstitutional
Jul 14, 2008; ... A state law imposing additional qualifications for expertstestifying in medical malpractice cases violates the separation ofpowers under the state constitution, the Arizona Court of Appealshas ruled in reversing an order excluding a patient's expert. Apatient sued her doctor for ...
Arizona Court of Appeals rules employment benefits may impact child support calculation
Jul 14, 2008; ... An employer's contributions to a divorced father's pension,workers' compensation premiums and insurance may be considered incalculating his gross income for determining his child supportobligations, the Arizona Court of Appeals has ruled. The couple gotdivorced and the mother objected ...
Indiana Supreme Court rules contribution claim for environmental cleanup may proceed
Jul 14, 2008 ... The statute of limitations on a claim seeking contribution toenvironmental cleanup costs does not begin to run until costs areactually incurred, the Indiana Supreme Court has ruled in reversinga dismissal. The plaintiffs bought a gas station in 1984. Theformer owner informed them that ...
Illinois Supreme Court rules plaintiff can recover billed medical expenses
Jul 14, 2008 ... A personal-injury plaintiff can recover the full amount billedfor medical expenses, even where the bills were later settled for adiscounted amount through Medicare and Medicaid, the IllinoisSupreme Court has ruled. The elderly plaintiff was injured in atraffic accident. At ...
Kentucky Supreme Court rejected med-mal claim for 'lost chance of survival'
Jul 14, 2008 ... Medical malpractice plaintiffs cannot recover for a decedent'slost or diminished chance of survival due to a late cancerdiagnosis, the Kentucky Supreme Court has ruled. The husband of awoman whose doctor failed to diagnose the stomach cancer that killedher sued her doctor. The trial ...
10th Circuit rules federal law preempts railroad warning device claims
Jul 14, 2008 ... Federal law preempts a wrongful death claim alleging that arailroad was negligent in delaying the upgrade of warning signals ata crossing where a fatal car-train collision occurred, the 10thCircuit has ruled. The plaintiff's 15-year-old son was killed whenthe car he was driving was ...
Connecticut Supreme Court rules dissipation of assets impacts property division
Jul 14, 2008 ... A court may consider pre-separation dissipation of marital assetsin determining alimony and child support, the Connecticut SupremeCourt has ruled. The court ordered that the wife in a divorce wouldreceive $95,000 in unallocated alimony and child support based on afinding that her ...
Fired class plaintiff's Title VII claim rejected in 6th Circuit
Jul 14, 2008; ... An employee who was a member of a Title VII class action could befired for breaching her employer's privacy policy by disclosingconfidential information in the case to attorneys, the 6th Circuithas ruled. The employee was a female, work-at-home insurance claimsadjuster. After ...
Nebraska Supreme Court says ex-husband's consent required for physical, insurance
Jul 14, 2008 ... A divorced wife cannot require her ex-husband to submit to aphysical examination for acquiring a life insurance policy to securehis alimony and child support obligations, the Nebraska SupremeCourt has ruled. The husband and wife were wealthy and entered intovarious post-marital ...
U.S. District Court in Indiana says monitoring sex offenders' Internet use violates privacy
Jul 14, 2008 ... Enforcement of a state statute requiring sexual and violentoffenders to consent to monitoring of their Internet use must beenjoined because it violates the Fourth Amendment, a U.S. DistrictCourt in Indiana has ruled. The named plaintiffs belonged to aclass of sexual and violent ...
New York Court of Appeals: Illegal alien can be denied workers' comp benefits
Jul 14, 2008 ... An injured worker who previously received workers' compensationbenefits could be denied additional benefits after a state agencydiscovered that he was an illegal alien, New York's highest courthas ruled. A state agency determined that the worker was anundocumented alien after he was ...
New York Court of Appeals says rabbi's 'sex therapy' can't support congregant's claim
Jul 14, 2008 ... A rabbi cannot be sued for breach of fiduciary duty forconvincing a female congregant to engage in intercourse with him asa form of "sexual therapy," New York's highest court has ruled indismissing the claim. The plaintiff joined the rabbi's congregationafter seeking his counseling for ...
Illinois Appellate Court says trust can't disqualify beneficiaries over interfaith marriages
Jul 14, 2008 ... Public policy prohibits enforcing a clause in a trustdisqualifying grandchildren from being trust beneficiaries if theyhave married someone who isn't of the testator's faith, the IllinoisAppellate Court has ruled. A millionaire's five grandchildren allsurvived him. He and his ...
U.S. District Court in Texas: Survival, wrongful death claims must be arbitrated
Jul 14, 2008 ... Survival and wrongful death claims relating to a fatal truckingaccident are subject to an arbitration clause in the victim'semployee benefit plan, a U.S. District Court in Texas has ruled ingranting a dismissal. A truck driver-trainee employed by thedefendant died when he was ejected ...
U.S. Supreme Court says notice of upward sentencing departure required
Jul 14, 2008 ... In the wake of the U.S. Supreme Court's decision in U.S. v.Booker, a defendant must still be given adequate notice that a courtmay depart from the applicable sentencing guidelines range, the 9thCircuit has ruled. The defendant was charged with various childpornography crimes after an ...
Florida Supreme Court says DUI offenders can be denied license reinstatement
Jul 14, 2008 ... The amendment of a state DUI provision permitting licensereinstatement for four-time offenders does not constitute an ex postfacto law depriving individuals of a constitutional right, theFlorida Supreme Court has ruled. A driver was convicted fourseparate times for DUI. At the time of ...
D.C. Court of Appeals: Language discrimination claim may proceed
Jul 14, 2008 ... A fired employee can sue for national origin discrimination basedon his employer's English proficiency requirement, the D.C. Court ofAppeals has ruled in denying a summary judgment. The employee was aPeruvian immigrant whose native language was Spanish. He was hiredas an accounting ...
5th Circuit finds toxic tort claim is time-barred
Jul 14, 2008 ... The statute of limitations on a wrongful death claim began to runwhen the injury was discovered, not when the plaintiffs' attorneyuncovered a link between dioxin and breast cancer, the 5th Circuithas ruled in reversing a $785,000 jury award. Further, the statestatute of limitations was ...
New York Court of Appeals: Truth in Lending Act doesn't preempt fraud claim
Jul 14, 2008 ... The federal Truth in Lending Act doesn't preempt a claim that abank's credit card solicitation practices violated state consumerfraud law, New York's highest court has ruled in affirming amodified award of damages, penalties and restitution. The stateattorney general sued a Delaware ...
Mass. Supreme Judicial Court rules unwed father's estate must pay child support
Jul 14, 2008 ... An order of child support may be issued against the estate of anunwed father, Massachusetts' highest court has ruled. The plaintiffwas unmarried when she gave birth to her daughter. The child'sfather acknowledged his parentage and for a number of yearsvoluntarily made substantial ...
9th Circuit: ADA preempts award of attorney fees under state law
Jul 14, 2008 ... A restaurant that prevailed in a disability discrimination actionisn't entitled to an award of attorney fees under state law, the 9thCircuit has ruled in reversing a fee award. Two disabled plaintiffssued the restaurant under both the Americans with Disabilities Actand California civil ...
4th Circuit says deficiency claim isn't barred by surrender of vehicle
Jul 14, 2008 ... Recent amendments to the Bankruptcy Code don't prevent a creditorfrom asserting a deficiency claim with respect to a motor vehiclewhich a Chapter 13 debtor has surrendered, the 4th Circuit has ruledin reversing judgment. The debtor obtained $12,000 in financing topurchase a Chevrolet ...
2nd Circuit says ADA claimant needn't request accommodation
Jul 14, 2008 ... An obviously disabled employee need not ask an employer for anaccommodation for the employer's duty to accommodate to arise underthe Americans with Disabilities Act, the 2nd Circuit has ruled. Theemployee was a 19-year-old with cerebral palsy. His conditionnoticeably affected his ...
Cellphone 'bundling' suit removed to federal court
Jul 14, 2008 ... A cellphone company could remove to federal court a class actionalleging that it violated state consumer protection law by"bundling" its services with a roadside assistance program, the 4thCircuit has ruled in reversing an order remanding the case to statecourt. A class of West Virginia ...
11th Circuit says law firm cleared of malpractice can recover attorney fees
Jul 14, 2008 ... A Florida law authorizing recovery of attorney fees by prevailingdefendants applies to a legal malpractice claim filed in a corebankruptcy proceeding, the 11th Circuit has ruled. The plaintifffiled a legal malpractice complaint as an adversary proceeding inbankruptcy court against the ...
Commentary: I doubt it: New methods to overcome juror resistance
Jul 14, 2008; ... Every day, attorneys and their clients walk into courtroomsacross the country counting on jurors to be fair, impartial and keepan open mind. Yet two fundamental juror conditions - skepticism andpseudo-expertise - make neutrality hard to achieve in the courtroom.Advocacy in today's ...
$20M brain-damage verdict overturned by 11th Circuit
Jul 14, 2008 ... A $20 million award of non-economic damages to the parents of abrain-damaged baby was excessive under the Federal Tort Claims Act,the 11th Circuit has ruled. The plaintiffs were the parents of achild born "brain dead" as a U.S. Naval Hospital after medical staffdelayed in performing an ...
More firms creating 'alumni networks' as business development tools
Jul 14, 2008; ... Only a few years ago, attorneys would never dream of maintainingofficial contact with the law firms they left. The former firm and the lawyer shared a tacit understanding: Whenthe attorney walks out the door, the relationship ends. But that pattern is changing as an increasing ...
U.S. Supreme Court's D.C. gun ruling won't end suits
Jul 14, 2008; ... The recent U.S. Supreme Court ruling overturning the District ofColumbia's handgun ban did not close the door on lawsuits aimed atthe gun industry. That's the word from Dennis Henigan, legal director of the BradyCenter to Prevent Gun Violence in Washington, D.C. In a 5-4 ...
Alaska Supreme Court says notice of hazard is not element of slip- and-fall case
Jul 28, 2008 ... Actual or constructive notice of a hazardous condition is not anelement of prima facie slip-and-fall cases against grocery stores,the Alaska Supreme Court has ruled in answering a certified questionfrom a U.S. District Court. A shopper slipped and fell at thedefendant's grocery store ...
California Court of Appeals awards fees against activist for they disabled
Jul 28, 2008 ... A winery that corrected its barriers to access as required by theAmericans with Disabilities Act and state access laws was entitledto recover some of its attorney fees from the activist who filed theclaims, the California Court of Appeal has ruled. The plaintiff wasa wheelchair-bound ...
6th Circuit says mixed-motive Title VII claim may proceed
Jul 28, 2008 ... The McDonnell Douglas burden-shifting approach to analyzing TitleVII employment discrimination claims does not apply at the summaryjudgment stage for mixed-motive claims, the 6th Circuit has ruled. The employee was a high-level sales representative for apharmaceutical supplier. After his ...
Utah Supreme Court: Power of attorney permitted distribution of assets before death
Jul 28, 2008 ... A power of attorney explicitly granting the power to gift to awoman's stepson authorized his distribution of some of her propertyamong her family before her death, the Utah Supreme Court has ruled.The woman granted her stepson a power of attorney for assetmanagement that authorized him ...
5th Circuit says pending PI claim warrants reopening bankruptcy
Jul 28, 2008 ... A bankruptcy trustee may reopen a discharged bankruptcy case toinclude a pending negligence claim the Chapter 7 debtors failed toidentify as an asset, the 5th Circuit has ruled. The debtors fileda personal injury suit in state court against a company driver andhis employer for injuries ...
U.S. 9th Circuit Court of Appeals rules defendant can't be convicted of identity theft
Jul 28, 2008 ... A defendant couldn't be convicted of aggravated identity theftunder federal law in the absence of proof that he knew he was usinga means of identification that belonged to another person, the 9thCircuit has ruled. Under 18 U.S.C. [section] 1028A(a)(1), a personcommits aggravated ...
5th Circuit says male flight attendant's discrimination claim may proceed
Jul 28, 2008 ... A fired male flight attendant's suit over how his leave wascalculated under a collective bargaining agreement is not prohibitedby the Railroad Labor Act, the 5th Circuit has ruled. The flightattendant repeatedly missed time from work as the result of chronicpsoriasis and arthritis. He ...