Thursday, February 24, 2011

Criminal law appeals, business disputes, insurance coverage with fresh tomatoes, basil and mozzarella

Miranda Const. Development, Inc. v. Mid-Continent Cas. Co. ,(S.D.Fla.)
Insurance - "Your work" exclusion in commercial general liability policy applied to claim for defective construction of home.
Under Florida law, the "your work" exclusion in a commercial general liability policy issued to an insured home builder applied to a claim against the insured seeking damages resulting from the insured's alleged defective construction of a home's foundation. Although the complaint alleged damage "including but limited to the flooring, trusses, roof, and walls," it was clear that the claim for damages related solely to the home itself and the insured's alleged defective construction. There were no allegations of damage to personal property or to property other than the home itself.

Torts -- Medical malpractice -- Birth-Related Neurological Injury Compensation Act -- Hospitals -- Where it was undisputed that the only attending obstetrician at time of infant's delivery was not a “participating physician” as defined by NICA, hospital was not protected by NICA from tort claim, even though hospital had given statutorily-required NICA notice -- Remedies and protections afforded by NICA are limited to those cases in which obstetric services were provided by participating physician at infant's birth
ORLANDO REGIONAL HEALTHCARE SYSTEM, INC., etc., Petitioner, v. SARAH GWYN AND BRIAN GWYN, etc., Respondents. 5th District.

Negligent Misrepresentation: PARENTS SEEK CHILD-REARING EXPENSES FOR BABY BORN AFTER FAILED VASECTOMY, Bassinger v. Oregon Healthcare Res., 6 No. 18 Westlaw Journal Medical Malpractice 1, Westlaw Journal Medical Malpractice February 11, 2011
An Oregon couple who conceived a child after being told that the husband's vasectomy was successful are seeking more than $675,000 in child-rearing expenses from the doctor who allegedly botched the procedure. In a lawsuit filed in the Lane County Circuit Court, Scott and Donnita Bassinger allege Dr. Stephan Schepergerdes negligently misrepresented to them that a sperm count conducted after Scott's March 30, 2007, vasectomy confirmed he was sterile.

Failure to Warn: CALIFORNIA APPEALS COURT BACKS DISMISSAL OF SURGICAL TOOL INJURY SUIT, Courtenay v. U.S. Surgical Corp., 6 No. 18 Westlaw Journal Medical Malpractice 3, Westlaw Journal Medical Malpractice February 11, 2011
A California appeals court has affirmed dismissal of a failure-to-warn suit against the maker of a gynecological surgical tool by a woman who says she was injured during a procedure to implant a supportive mesh device. Elisabeth Courtenay turned to the 2nd District Court of Appeal after a trial judge granted summary judgment to Tyco Healthcare Group and U.S. Surgical Corp.Her claims related to the use of the IVS Tunneller during a 2004 abdominal operation.

Legal Malpractice: MISSISSIPPI HIGH COURT REVIVES MALPRACTICE SUIT AGAINST ATTORNEY, Bennett v. Hill-Boren P.C., 6 No. 18 Westlaw Journal Medical Malpractice 4, Westlaw Journal Medical Malpractice February 11, 2011
The Mississippi Supreme Court has ruled that a woman can pursue legal malpractice allegations against two attorneys who allegedly failed to serve a summons to a defendant in a wrongful-death lawsuit. The trial court incorrectly granted summary judgment to attorney Leonard B. Melvin Jr. on the ground that Mattie Bennett's and Dorothy Washington's malpractice claims were barred by a three-year statute of limitations, the Supreme Court ruled.

Intentional Acts: HERPES INFECTION NOT AN 'ACCIDENT,' NEW JERSEY APPEALS COURT RULES, D.V. v. N.J. Mfrs. Ins. Co., 21 No. 17 Westlaw Journal Insurance Coverage 6, Westlaw Journal Insurance Coverage February 4, 2011
A New Jersey insurance company need not defend a policyholder in a lawsuit in which her ex-boyfriend alleges she intentionally failed to disclose her herpes infection to him, a state appellate court has ruled. The Superior Court Appellate Division upheld a lower court's decision that New Jersey Manufacturers Insurance Co. properly denied coverage to a policyholder identified only as "D.V."The court ruled that since D.V. knew she carried the herpes virus, transmission of the disease to her ex-boyfriend was not an accident.

Settlement Dispute: INSURER'S FINDING OF CONTRIBUTORY NEGLIGENCE COULD BE BAD FAITH, Zintel v. Progressive N. Ins. Co., 21 No. 17 Westlaw Journal Insurance Coverage 9, Westlaw Journal Insurance Coverage February 4, 2011
An insurance carrier might have acted in bad faith when its agent calculated contributory negligence into a claim evaluation for a policyholder who was struck by a pickup truck, a Pennsylvania federal judge has ruled. U.S. District Judge James M. Munley of the Middle District of Pennsylvania said a reasonable jury could find that the insurer knew it lacked a reasonable basis to reduce its claim evaluation but did so anyway.

Civil rights -- Speech -- Retaliation -- Due process -- Former nursing student brought Section 1983 action against college and administrators alleging that her suspension from Licensed Practical Nursing Program violated her free speech and due process rights -- Qualified immunity -- Defendants were entitled to qualified immunity on claim that plaintiff was suspended in retaliation for reporting one of her instructors for falsifying attendance records, in violation of First Amendment, where there is factual dispute as to whether plaintiff's protected speech of reporting instructor was motivating factor in her suspension from Nursing Program, and, even if there was retaliatory motive, record establishes that school administrators also possessed lawful motive for suspending plaintiff and reasonably believed that they would have suspended plaintiff in absence of her protected speech because of her other conduct -- Under facts of case, district court did not err in deciding that, for qualified immunity purposes, school administrators in their position could have reasonably believed that suspending plaintiff would not violate her First Amendment free speech rights -- Defendants were entitled to qualified immunity on claim that plaintiff was suspended without meaningful opportunity to respond to charges against her in violation of Due Process Clause of Fourteenth Amendment -- Even though school administrators deprived plaintiff of pre-suspension hearing, based on facts of case, district court did not err in deciding that, for qualified immunity purposes, it was not clearly established at time plaintiff was suspended that the immediate availability of appeals process would not have adequately protected plaintiff's due process rights
SARA CASTLE, Plaintiff-Appellant, v. APPALACHIAN TECHNICAL COLLEGE, JASPER GEORGIA, In their individual and official capacities, et al., Defendants, JOAN THOMPSON, Vice President, in their individual and official capacities, DR. TRINA BOTELER, Executive Affairs Officer, in their individual and official capacities, Defendants-Appellees. 11th Circuit.

Contracts -- Real property sale -- Rescission -- Interstate Land Sales Full Disclosure Act -- District court did not err in dismissing complaint seeking rescission of land purchase contracts and damages pursuant to ILSA, after considering forum selection clause in purchase contracts designating Bahamas as exclusive venue for any litigation concerning or related to contract and finding that venue was foreclosed in Florida -- District court's enforcement of forum selection clause did not deprive plaintiffs of their right to choose the venue for their ILSA claims and was not contrary to public policy

Employer-employee relations -- Family and Medical Leave Act -- Interference with FMLA rights -- District court correctly found that employee's Department of Labor complaint did not bar her from filing civil action against employer for interfering with her statutory right to request medical leave and for firing her in retaliation for her protected leave request in violation of FMLA -- Agency regulations which allow an employee to file either agency complaint or civil suit, but not both, cannot contravene statute providing a right to a cause of action and specifically listing the limitations terminating the right of action -- District court correctly excluded causal nexus from recitation of elements of interference claim, but employer was entitled to raise lack of causation as affirmative defense -- Error in failing to give jury instruction on defense of lawful reasons for termination was harmless because jury specifically rejected defense in its special verdict
DIANE SPAKES, Plaintiff-Appellee, v. BROWARD COUNTY SHERIFF'S OFFICE, Defendant-Appellant. 11th Circuit.

Labor relations -- Fair Labor Standards Act -- Overtime -- Motor carrier exemption -- Shuttle service that provides ground transportation services to general public traveling to and from local airports was entitled to summary judgment on former shuttle driver's claim for overtime under Fair Labor Standards Act on ground that airport shuttle van drivers fall under motor carrier exemption to FLSA and therefore are exempt from FLSA's overtime provisions -- Plaintiff is subject to motor carrier exemption where undisputed evidence shows that shuttle service is subject to Secretary of Transportation's jurisdiction under Motor Carrier Act and plaintiff's work-related activities as airport shuttle driver directly affected safety of operation of motor vehicles in transportation of passengers on public highways in interstate commerce within meaning of Motor Carrier Act
STEVEN ABEL, on his own behalf and all others similarly situated, Plaintiff-Appellant, v. SOUTHERN SHUTTLE SERVICES, INC., a Florida Corporation, Defendant-Appellee. 11th Circuit.

Contracts -- Construction -- Agreement between contractor and subcontractor for subcontractor to manufacture staircase and flooring system for renovation being performed by contractor -- Trial court properly found that a valid contract existed although contractor did not sign subcontractor's final proposal where contractor accepted proposal by its actions of paying initial deposit and subsequently invoiced payments -- Where contract provided that subcontractor was to “engineer, fabricate and install” the staircase and flooring system, but also provided that the final progress payment was “due upon supervision of installation,” the contract was ambiguous as to whether subcontractor was to install the staircase and flooring system or only supervise the installation, and court properly allowed presentation of parol evidence to establish the parties' intent -- Judgment finding that contractor breached contract by failing to make a payment was internally inconsistent where court also found that the payment had not been invoiced by subcontractor -- Judgment finding contractor to be in breach of contract reversed
L & H CONSTRUCTION COMPANY, INC., Appellant, v. CIRCLE REDMONT, INC., Appellee. 5th District.

Counties -- Rezoning -- Inconsistency with comprehensive plan -- No error in entering summary judgment in favor of defendants in action challenging county's approval of application for rezoning of parcel to allow for automotive repair and service shop where automotive repair facility was an allowed use within the subject parcel's future land use category
D. DOUGLAS REHMAN, Appellant, v. LAKE COUNTY, FLORIDA, ET AL., Appellee. 5th District.

Child support -- Income -- Amount paid to father by Veteran's Administration for benefit of child should have been included in father's income and the total family income figure -- Remand for recalculation of child support

Insurance -- Uninsured motorist -- Bad faith -- Error to lift abatement of bad faith claim while insurer's appeal of excess judgment was pending
ILLINOIS NATIONAL INSURANCE CO., Petitioner, v. PATRICIA BOLEN, Respondent. 5th District.

Insurance -- Uninsured motorist -- Umbrella policy -- Stacking -- Trial court properly determined that policy issued to insured who owned four automobiles was a non-stacking policy where a single premium was paid for coverage, and no separate premium paid for each automobile

Civil procedure -- Parties -- Anonymity -- Civil suit brought by anonymous plaintiffs for damages stemming from films produced by defendants in which plaintiffs, while under age of eighteen, exposed their breasts and engaged in sexually explicit acts -- District court abused discretion in denying plaintiffs' motion to proceed anonymously at trial where court incorrectly deemed some of plaintiffs' conduct “casual and voluntary” and improperly discounted expert evidence of harm that revealing their identities would cause the plaintiffs -- None of normal harms threatened to defendants when plaintiffs proceed anonymously are present in instant case -- Remanded for entry of order allowing plaintiffs to remain anonymous, subject to limitations posed by First Amendment on prior restraint on speech -- Appellate court would not address claim that requested limitations on press's ability to cover the trial constitute prior restraint in violation of First Amendment where district court had not addressed issue in first instance

Civil rights -- Prisoners -- Speech -- Retaliation -- State prisoner filed retaliation claim under 42 U.S.C. section 1983 alleging prison official violated his First Amendment rights when she disciplined prisoner for filing inmate grievance and for speaking to her in manner she found disrespective -- Error to grant summary judgment in favor of prison official where genuine issues of material fact remain as to causal relationship between inmate's use of large upper case letters in his grievance and discipline imposed, and as to causal relationship between inmate's statements to prison official about contacting his attorney and official's subsequent actions -- As matter of law, an inmate's statement that he wants or plans to contact his attorney does not constitute a punishable “spoken threat” -- Damages -- District court erred when it sua sponte granted summary judgment in favor of prison official on issue of compensatory damages where court did not provide notice that it intended to rule on compensatory damages claim during summary judgment proceedings
LEWIS MARTIN MOTON, JR., Plaintiff-Appellant, v. CAPTAIN B.E. COWART, Defendant-Appellee, W.O. SHEETZ, LT. PRIETO, Defendants. 11th Circuit.

Criminal law -- Sentencing -- Federal guidelines -- Career offender -- Prior convictions -- Error to sentence defendant as career offender where his prior conviction for cocaine trafficking did not constitute a controlled substance offense -- Because appellate court was required to assume that defendant's prior conviction involved only the purchase of cocaine where district court was unable to determine statutorily-prohibited act for which defendant was convicted, and because act of purchase is not included in definition of controlled substance offense under section 4B1.2(b), defendant's prior conviction was not a “controlled substance offense”
USA, Plaintiff-Appellee, v. JERMON SHANNON, JR., a.k.a. Winfield Winchester Roye, Defendant-Appellant. 11th Circuit.

Criminal law -- Sentencing -- Federal guidelines -- Offense level -- Error to include in offense level calculation a two-level enhancement for unduly influencing a minor to engage in prohibited sexual conduct, where only “minor” involved in case was undercover law enforcement officer posing as underage child -- Amendment 732, which became effective after date of defendant's sentencing hearing and states that undue influence enhancement does not apply when only “minor” involved is undercover officer, is clarifying amendment that should be applied retroactively to defendant's direct appeal of his sentence
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SETH JERCHOWER, Defendant-Appellant. 11th Circuit.

Criminal law -- Murder -- Death penalty -- Post conviction relief -- No error in concluding that defendant was not mentally retarded -- Circuit court erred in its application of standard error of measurement to one of defendant's IQ scores, and language of circuit court's order does not demonstrate beyond reasonable doubt that the error did not contribute to court's conclusion that defendant failed to establish subaverage intellectual functioning -- However, competent, substantial evidence supported circuit court's determination that defendant failed to establish deficient adaptive functioning -- Evidence -- Even if, as defendant claims, circuit court improperly allowed a number of documents to be admitted into evidence and improperly allowed a former defense expert to testify for the state, any error was harmless where language of order demonstrated beyond reasonable doubt that challenged evidence did not contribute to conclusion that defendant failed to establish mental retardation -- Court notes that, while post conviction court had authority to take judicial notice of prior post conviction proceeding and certain letters in court files, documents are still subject to same rules of evidence to which all evidence must adhere -- Further, it is important for attorneys to ensure that record reflects identifying information as to which piece of evidence is being referenced and addressed during proceeding
DONALD WILLIAM DUFOUR, Appellant, v. STATE OF FLORIDA, Appellee. Supreme Court of Florida.

Criminal law -- Sentencing -- Resentencing -- Guidelines departure sentence -- Decisions of U.S. Supreme Court in Apprendi v. New Jersey and Blakely v. Washington, under which a judge may impose sentence based solely on facts reflected in a jury verdict or admitted by defendant except for the fact of a prior conviction, apply to de novo resentencing proceedings that were not final when Apprendi and Blakely issued regardless of whether the defendant's conviction and sentence were final before Apprendi and Blakely issued
STATE OF FLORIDA, Petitioner, vs. CHRISTIAN FLEMING, Respondent. Supreme Court of Florida.

Criminal law -- Appellate counsel -- Ineffectiveness -- Although appellate counsel was deficient for failing to file motion to correct sentencing error which had not been preserved by trial counsel where defendant would have been entitled to relief under case law in effect at the time of defendant's appeal, defendant is not entitled to relief on claim of ineffective assistance of appellate counsel where that case law has been disapproved by Florida Supreme Court -- Question certified: When a petitioner clearly alleges deficient performance on the part of appellate counsel based on case law in effect at the time of the appeal that would have resulted in relief had appellate counsel raised the issue on appeal, but the case law upon which the petitioner bases the claim is subsequently disapproved, is the petitioner still prejudiced by appellate counsel's deficient performance and thus entitled to relief through a petition alleging ineffective assistance of appellate counsel?
DEANDRE T. WOODRUFF, Petitioner, v. STATE OF FLORIDA, Respondent. 2nd District.
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Wednesday, February 2, 2011

Settlement, releases, indemnification and wild quail with cornbread, currant and pecan stuffing drizzled with raspberry gravy

Contracts -- Releases -- Trial court erred in entering summary judgment finding that release sent by plaintiff to defendant extinguished any and all claims against defendant where release contained latent ambiguities, and there was factual issue as to whether release was withdrawn or revoked prior to defendant's acceptance

Dissolution of marriage -- Equitable distribution -- Error to charge husband with money withdrawn from marital IRAs and to classify as husband's nonmarital debt money that had been borrowed from parties' equity line of credit based on magistrate's finding that husband's postseparation expenditure of funds from these sources was in excess of reasonable and necessary living expenses husband paid for both parties and was for husband's sole use and benefit where magistrate also found that there was no substantial competent evidence that husband's dissipation of assets was willful, deliberate, or intentional
WILLIAM A. BELFORD, Appellant, v. DEBORAH BELFORD, Appellee. 2nd District.

Dissolution of marriage -- Equitable distribution -- Unequal distribution -- Marital home -- In supplemental final judgment, trial court erred in awarding former wife half interest in loan from a line of credit secured by the marital home as well as equity in the marital home after the proceeds from its sale were used to satisfy the loan, without findings to justify the unequal distribution -- There is no merit to former husband's claim that trial court lacked jurisdiction to alter the terms of the consent final judgment -- By seeking a special equity in the proceeds of the sale of the marital home, former husband sought to vary the terms of the consent final judgment, and the disposition of the marital home was contested and tried by consent
KEVIN ANTHONY DYBALSKI, Appellant, v. ANGELA LYNNE DYBALSKI, Appellee. 5th District.

Indemnification -- Trial court properly dismissed with prejudice a complaint seeking common law indemnification based on an assignment of rights contained in a settlement agreement entered into in a different case where assignor, in fact, had no right to indemnification from the defendants in this case -- Trial court did not err by considering contents of settlement agreement in ruling on motion to dismiss where complaint referred to the agreement and plaintiff's standing to bring instant suit was premised on terms of that agreement ROY VEAL, as representative of the class certified at No. 8:04-CF0-0323 (U.S.D.C. M.D. Fla.), assignees of certain rights of Crown Auto Dealerships, Inc., Appellant, v. VOYAGER PROPERTY AND CASUALTY INSURANCE COMPANY; VOYAGER SERVICE PROGRAMS, INC.; and PRO-TEC DEALER SERVICES, INC., Appellees. 2nd District.

Municipal corporations -- Code enforcement liens -- City ordinance granting its code enforcement liens superpriority over a prior recorded mortgage conflicts with section 695.11, Florida Statutes, and ordinance must yield to statute -- Trial court properly entered summary judgment finding that prior recorded mortgage had priority over code enforcement liens
CITY OF PALM BAY, Appellant, v. WELLS FARGO BANK, N.A., Appellee. 5th District.
Civil rights -- Speech -- Association -- County and fire department officer did not violate a firefighter's First Amendment right to intimate association when they demoted him for an extramarital affair with one of his subordinates, because county's interest in discouraging intimate, extramarital association between supervisors and subordinates is so critical to effective functioning of fire department that it outweighs firefighter's interest in extramarital association with a subordinate in workplace, even assuming arguendo that First Amendment protects intimate, extramarital associations as fundamental right
RANDOLPH STARLING, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS, PALM BEACH COUNTY, KEN FISCHER, in his official and individual capacity, Defendants-Appellees. 11th Circuit.

Contracts -- Airlines -- Contract of carriage -- Breach by airlines -- Federal preemption -- Airline Deregulation Act -- Female passenger filed suit against airline alleging state law contract and tort claims, based on allegedly unprofessional conduct and sexually explicit comments made to her by male employees following discovery of vibrator in her checked luggage -- District court correctly determined that breach of contract of carriage claim was preempted by Air Deregulation Act, as claim related to “services” within meaning of ADA's preemption clause -- Punitive damages claim based on alleged misconduct of carrier's employees must be dismissed because neither airline carrier nor its management participated in, ratified, condoned, or consented to action of lower level employees accused of misconduct -- Claim for intentional infliction of emotional distress was properly dismissed for failure to state a cause of action, where sexual comments alleged to be made by employee, while distasteful in nature, were insufficient to support claim of intentional infliction of emotional distress
RENEE KOUTSOURADIS, Plaintiff-Appellant, v. DELTA AIR LINES, INC., a foreign corporation, Defendant-Appellee. 11th Circuit.

Due process -- Attorneys -- Certification in field of legal specialization -- Board certified attorney who was denied recertification as marital and family law specialist on basis of unsatisfactory peer reviews sued Florida Bar asserting as-applied and facial challenges to confidential peer review part of Bar's certification rules and seeking injunctive and declaratory relief under Due Process Clause -- Jurisdiction -- Rooker-Feldman doctrine clearly deprived district court of subject matter jurisdiction to decide attorney's as-applied challenges to Florida Bar's confidential peer review rules, where Florida Supreme Court had denied her petition for review of Bar's decision denying recertification -- Facial challenge on due process grounds to Florida Bar's rules regarding confidential peer reviews as part of recertification process fails because neither certification nor recertification in a field of legal specialization amounts to cognizable property or liberty interest
LAWYER DOE, Plaintiff, CAROLYN S. ZISSER, Plaintiff-Appellant, v. THE FLORIDA BAR, Defendant-Appellee. 11th Circuit.

Employer -- Employee relations -- Family and Medical Leave Act -- Employee who was demoted after returning from statutorily protected maternity leave sued employer, alleging that her maternity leave impermissibly contributed to her demotion -- Employer was entitled to judgment as a matter of law on claims that employer violated Family and Medical Leave Act both by interfering with plaintiff's FMLA rights and retaliating against her for exercising those rights, because reasonable jury would not have legally sufficient evidentiary basis to find in plaintiff's favor on either of her FMLA claims -- District court did not err in granting judgment as matter of law in favor of employer on FMLA interference claim where employer offered evidence showing that plaintiff was demoted as result of her ineffective management style, which revealed itself in full only in her absence, and not because she took FMLA leave, and plaintiff did not offer any evidence to contrary -- Discussion of distinction between but-for and proximate causation in FMLA context -- District court did not err in granting employer's motion for judgment as matter of law on FMLA retaliation claim because, even assuming plaintiff successfully established prima facie case for FMLA retaliation, employer met its burden of articulating a legitimate, nondiscriminatory reason for plaintiff's demotion by producing testimony regarding plaintiff's poor management practices, astringent leadership style, and inability to communicate effectively with her subordinates, and plaintiff failed to demonstrate that employer's reasons were merely pretext for discrimination
ELLEN SCHAAF, Plaintiff-Appellant, v. SMITHKLINE BEECHAM CORPORATION, d.b.a. GlaxoSmithKline, GLAXOSMITHKLINE, Defendants-Appellees. 11th Circuit.

Cannino v. Progressive Express Ins. Co. ,(Fla.App. 2 Dist.)
Insurance - Insured who settled workers' compensation lien by releasing right to future benefits was entitled to collect PIP benefits.
An insured who received workers' compensation benefits for injuries he sustained in an automobile accident that occurred during the course of his employment, and who settled with the third-party tortfeasor for the tortfeasor's policy limits and then released his right to future workers' compensation benefits in exchange for a waiver of the workers' compensation carrier's workers' compensation lien, was entitled to recover personal injury protection (PIP) no-fault benefits from his personal automobile insurer. Although the insurer contended that it was entitled to a credit for the workers' compensation benefits that were never repaid out of pocket, the insured became obligated to reimburse the workers' compensation carrier upon recovering from the tortfeasor, and the insured's settlement with the workers' compensation carrier was the equivalent of repayment of the benefits. <p>This decision may not yet be released for publication.

Combs v. Nelson,(C.A.11 (Ga.))
Civil Rights - Prison officials were not deliberately indifferent to medical needs of prisoner diagnosed with latent TB.
Prison officials were not deliberately indifferent to the medical needs of a prisoner who was diagnosed with latent tuberculosis (TB). The prison had policies mandating, inter alia, TB testing upon an inmate's initial intake screening and an investigation about with whom an inmate with active TB had been in contact. The officials complied with the policies. Although the prisoner stated that the infected inmate was allowed to walk around the general prison population for three months, engaging in close contact with other inmates, the prisoner provided no identity for the inmate, did not explain how or when he learned of the infected inmate, and submitted no documentation of a complaint he filed about such an inmate.

Appeals -- A party may not appeal denial of summary judgment after district court has conducted full trial on the merits -- Civil rights -- Qualified immunity -- Where district court denied defendants' motions for summary judgment based on qualified immunity after finding the existence of factual disputes material to plaintiff's claims and defendants' claims of qualified immunity, defendants could not appeal that ruling after trial on merits
MICHELLE ORTIZ, Petitioner v. PAULA JORDAN et al. U.S. Supreme Court.

Civil rights -- Employment discrimination -- Retaliation -- Employee filing charge with Equal Employee Opportunity Commission against employer and subsequent suit under Title VII, claiming that employer fired him to retaliate against his fiancee for filing with EEOC her sex discrimination charge against employer, was entitled to sue for retaliation under Title VII -- Firing of employee constituted unlawful retaliation, if facts as alleged are true -- Title VII grants employee a cause of action -- For standing purposes, employee falls within zone of interest protected by Title VII where purpose of Title VII is to protect employees from employer's unlawful action and plaintiff was not accidental victim of the retaliation of employer's unlawful act, if facts as alleged are accepted; rather, it was employer's intended means of harming employee's fiancee for filing sex discrimination charge -- Employee is a person aggrieved with standing to sue

Consumer law -- Truth in Lending Act -- Disclosures -- Credit card finance charges -- At time of transactions at issue, Regulation Z, which requires issuers of credit cards to provide cardholders with initial disclosure statements specifying each periodic rate associated with account and subsequent disclosure notice whenever any term required to be disclosed is changed, does not require an issuer to notify a cardholder of an interest-rate increase instituted pursuant to previously-disclosed provision of cardholder agreement giving issuer discretion to increase rate, up to a stated maximum, in event of cardholder's delinquency or default
CHASE BANK USA, N. A., Petitioner v. JAMES A. McCOY, individually and on behalf of all others similarly situated. U.S. Supreme Court.

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Tuesday, February 1, 2011

Health law, arugula with roasted tomatoes and garlic over penne pasta

Medicaid Services: SUPREME COURT TO DECIDE IF CALIFORNIA CAN CUT MEDICAID PAYMENTS, Maxwell-Jolly v. Pharmacists Ass'n, 13 No. 15 Westlaw Journal Nursing Home 1, Westlaw Journal Nursing Home January 28, 2011
The U.S. Supreme Court has agreed to review a California health official's claims that the state should be allowed to reduce Medicaid payments to physicians, hospitals and pharmacies because of its current budget crisis. The high court granted the state's petition for review of a 9th U.S. Circuit Court of Appeals ruling that a state-approved reduction in Medicaid payments is preempted by federal Medicaid law.

Abuse & Neglect: FLORIDA SUIT SAYS HOME FAILED TO PREVENT RESIDENT'S FALLS, Cook v. Senior Care Cedar Hills, 13 No. 15 Westlaw Journal Nursing Home 2, Westlaw Journal Nursing Home January 28, 2011
An elderly dementia sufferer in Florida suffered numerous falls, infections and insect infestations during her stay at a Jacksonville nursing home, her daughter alleges in a state court lawsuit. Martha Y. Cook claims that Cedar Hills Healthcare Center violated her mother's rights as a nursing home resident when it failed to monitor her, prevent falls, and protect her from infestations of scabies mites and bed bugs.  

Billing Fraud: VIRGINIA FEDERAL JUDGE WON'T DISMISS MEDICARE FRAUD DEFENDANTS, United States v. Americare In Home Nursing, 13 No. 15 Westlaw Journal Nursing Home 3, Westlaw Journal Nursing Home January 28, 2011
A Virginia federal judge has denied a motion by Visiting Nurse Service Network and its executive director to dismiss a suit alleging the company violated the federal Anti-Kickback Statute and False Claims Act by running an illegal patient referral scheme. U.S. District Judge James C. Cacheris of the Eastern District of Virginia also denied a motion to dismiss by a defendant home health care company allegedly involved in the scheme but granted dismissals to a third company and a home health firm.

Billing Fraud: WHISTLE-BLOWER SUIT AGAINST KANSAS HOSPICE PROVIDER SURVIVES, United States v. Hospice Care of Kansas, 13 No. 15 Westlaw Journal Nursing Home 4, Westlaw Journal Nursing Home January 28, 2011
A Kansas federal judge has declined to dismiss a whistle-blower lawsuit alleging Hospice Care of Kansas and parent Voyager Hospicecare instructed staff members to unlawfully document patients' conditions to make them appear eligible to receive Medicare benefits. Judge Carlos Murguia of the U.S. District Court for the District of Kansas rejected the defendant companies' argument that plaintiff Beverly Landis failed to plead her fraud claims with the particularity required by Federal Rule of Civil Procedure.

Coercion: LOUISIANA APPEALS PANEL REJECTS DECEASED MOTHER'S COERCION CLAIMS, Petrie v. Michetti, 13 No. 15 Westlaw Journal Nursing Home 5, Westlaw Journal Nursing Home January 28, 2011
A Louisiana appeals court has rejected the claims of a now-deceased dementia sufferer who said her daughter coerced her into donating property by threatening to put her in a nursing home. Maxine Rearick failed to present clear and convincing evidence that she donated property to her daughter under threat of harm and without real volition, the Court of Appeal's 5th Circuit found.The three-judge panel upheld a trial court's denial of Rearick's request to nullify or revoke the donation.

Employment: SUNRISE FACILITY FIRED WORKER FOR REPORTING NEGLECT, SUIT SAYS, Tobritzhofer v. Sunrise Senior Living, 13 No. 15 Westlaw Journal Nursing Home 6, Westlaw Journal Nursing Home January 28, 2011
Management at a Sunrise Senior Living facility in Minnesota fired a staff member for reporting increased incidents of resident neglect and declining levels of care, a federal lawsuit alleges. Kimberly Tobritzhofer claims that her superiors at Sunrise of Roseville repeatedly told her not to report residents' increased occurrences of falling and concerns about skin care to state health officials or other employees. In a complaint for wrongful discharge filed in the U.S. District Court.

Financial Elder Abuse: CALIFORNIA APPEALS COURT FINDS DISABLED WOMAN'S FAMILY VIOLATED TRUST, McQueen v. Drumgoole, 13 No. 15 Westlaw Journal Nursing Home 7, Westlaw Journal Nursing Home January 28, 2011
A California appeals court has upheld a jury's finding that a mentally retarded woman's uncle, sister and attorney violated a trust by selling the family residence without her knowledge and cutting her out of the proceeds. The trial judge properly allowed jurors to consider Ida McQueen's conversion claim and issued correct jury instructions on the standard for financial elder abuse, the 1st District Court of Appeal said.McQueen, 76, suffers from mild mental retardation and is wheelchair-bound.

Health Care Reform: CHRISTIAN GROUP CHALLENGES HEALTH CARE REFORM BILL IN 6TH CIRCUIT, Thomas More Law Ctr. v. Obama, 13 No. 15 Westlaw Journal Nursing Home 8, Westlaw Journal Nursing Home January 28, 2011
A Christian legal advocacy group seeking to derail President Obama's health care reform law has taken its case to the 6th U.S. Circuit Court of Appeals. The Thomas More Law Center is challenging U.S. District Judge George Caram Steeh's ruling that the government legally can require uninsured people to purchase coverage.The judge had denied the group's request for an injunction against a provision in the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, that imposes a penalty.

Legislation: WISCONSIN SENATE PASSES LAWSUIT REFORM, PUNITIVE DAMAGES CAP, 13 No. 15 Westlaw Journal Nursing Home 9, Westlaw Journal Nursing Home January 28, 2011
The Wisconsin Senate has approved legislation that imposes greater restrictions on evidence in tort cases against long-term-care facilities and caps punitive damages in all cases at $200,000. The Republican-authored law is part of a five-bill package introduced by incoming Gov. Scott Walker to promote a "business- and job-friendly legal environment," he told the media Jan. 4. However, state Democrats and advocacy groups for the elderly claim the package's lawsuit reform bill shields nursing homes.

Long-Term-Care Insurance: DEMENTIA SUFFERERS SEEK PENALTIES AGAINST LTC INSURER, Barton v. Bankers Life & Cas. Co., 13 No. 15 Westlaw Journal Nursing Home 10, Westlaw Journal Nursing Home January 28, 2011
A Texas couple, both diagnosed with dementia, have sued their long-term-care insurer over its allegedly wrongful denial of their claims and refusal to comply with requests for policy information. Glen and Barbara Barton claim that Bankers Life & Casualty Co. has declined to reimburse them $7,500 in legal expenses despite the insurer's concession that it should have approved their claims for benefits in 2009 and 2010. They seek reimbursement plus thousands in statutory penalties for the insurer.

Medicaid Services: CUTS IN MEDICAID HOME SERVICES WILL HURT THOUSANDS, LOUISIANA RESIDENTS SAY, Pitts v. Greenstein, 13 No. 15 Westlaw Journal Nursing Home 11, Westlaw Journal Nursing Home January 28, 2011
Four low-income Louisiana residents are seeking class-action status in their bid to stop the state from cutting home-care Medicaid services for nearly 11,000 poor people. Plaintiffs Helen Pitts, 78, Kenneth Roman, 47, Denise Hodges, 53, and Ricki Ainey 30, allege the Louisiana Department of Health and Hospitals plans to slash its program offering long-term, personal care services in the face of a $1.6 million budget deficit. The move is discriminatory because it will result in thousands of Medicaid cuts.

Implantable Defibrillators: 2ND TIME AROUND, GUIDANT GETS OK ON $296 MILLION PLEA DEAL, United States v. Guidant LLC, 17 No. 25 Westlaw Journal Medical Devices 1, Westlaw Journal Medical Devices January 31, 2011
A federal judge in Minneapolis has approved a $296 million plea agreement between Guidant LLC and the Justice Department, noting that the pact places the company on probation, an element absent in a previously rejected proposal. Last April U.S. District Judge Donovan W. Frank of the District of Minnesota rejected a virtually identical plea deal over the company's concealment of defects in some of its implantable heart defibrillators, saying it lacked a probation element.

Hydro ThermAblator (Federal Preemption): 5TH CIRCUIT RESTORES PART OF BURN VICTIM'S SUIT AGAINST BOSTON SCIENTIFIC, Hughes v. Boston Scientific Corp., 17 No. 25 Westlaw Journal Medical Devices 2, Westlaw Journal Medical Devices January 31, 2011
A federal appeals court has restored a failure-to-warn claim by a woman who says she was severely burned by a device used to stop uterine bleeding, reversing a judge's finding that the action is federally preempted. Jan Hughes can proceed with her claim that Boston Scientific Corp. failed to properly warn her about the Hydro ThermAblator's burn risks, the 5th U.S. Circuit Court of Appeals said, because she based her allegation on the firm's alleged failure to comply with federal regulations.

Prosthetic Hip: LIMITATIONS STATUTE SNUFFS SUIT OVER FLORIDA WOMAN'S FAILED PROSTHESIS, Chapman v. DePuy Orthopaedics, 17 No. 25 Westlaw Journal Medical Devices 3, Westlaw Journal Medical Devices January 31, 2011
Citing an expired statute of limitations, a federal judge in Tampa, Fla., has granted summary judgment for DePuy Orthopaedics in a suit alleging a woman's hip prosthesis failed because it was negligently designed and manufactured. U.S. District Judge Virginia Covington of the Middle District of Florida found that although the plaintiff lives in the state, her suit is governed by Virginia's two-year limitations period for product liability cases because that is where the disputed device was purchased.

Prosthetic Hip (Discovery): ILLINOIS FEDERAL JUDGE KILLS HIP PLAINTIFF'S 'OVERLY BROAD' DISCOVERY REQUEST, Pankey v. Wright Med. Group, 17 No. 25 Westlaw Journal Medical Devices 4, Westlaw Journal Medical Devices January 31, 2011
A federal judge in Urbana, Ill., has denied as "overly broad" a plaintiff's discovery motion in a suit alleging the premature failure of a hip prosthesis system from Wright Medical Group. Rejecting plaintiff Glenn D. Pankey's motion to compel discovery, U.S. Magistrate Judge David G. Bernthal of the Central District of Illinois sided with the medical device maker. Wright had argued that the request for extensive data on all Profemur hip prosthesis products constituted an unauthorized "fishing expedition.”

Surgical Tool: CALIFORNIA APPEALS COURT BACKS DISMISSAL OF SURGICAL TOOL INJURY SUIT, Courtenay v. U.S. Surgical Corp., 17 No. 25 Westlaw Journal Medical Devices 5, Westlaw Journal Medical Devices January 31, 2011
A California appeals court has affirmed dismissal of a failure-to-warn suit against the maker of a gynecological surgical tool by a woman who says she was injured during a procedure to implant a supportive mesh device. Elisabeth Courtenay turned to the 2nd District Court of Appeal after a trial judge granted summary judgment to Tyco Healthcare Group and U.S. Surgical Corp.Her claims related to the use of the IVS Tunneller during a 2004 abdominal operation.  

Pain Pump: BREG SCORES WINS OHIO PAIN PUMP SUIT, Krumpelbeck v. Breg Inc., 17 No. 25 Westlaw Journal Medical Devices 6, Westlaw Journal Medical Devices January 31, 2011
Breg Inc. had no reason to warn an Ohio woman of possible cartilage damage from the use of one of its pain pumps to inject anesthetics into her shoulder after a 2005 operation, a federal judge in Cincinnati has ruled. U.S. District Judge Timothy S. Black of the Southern District of Ohio granted the company's motion for summary judgment, finding no duty to warn at the time the injection took place in March 2005.

Pain Pump: NEGLIGENCE, LIABILITY CLAIMS GO FORWARD IN SOUTH DAKOTA PAIN-PUMP SUIT, Suhn v. Breg Inc., 17 No. 25 Westlaw Journal Medical Devices 7, Westlaw Journal Medical Devices January 31, 2011
A federal judge in Sioux Falls, S.D., will allow negligence and strict liability claims to proceed in a man's lawsuit alleging his shoulder cartilage was destroyed when a Breg Inc. pain pump was used to infuse anesthesia directly into the joint. U.S. District Judge Karen E. Schreier of the District of South Dakota said Marcus Suhn provided enough data for a jury to find the defendant should have known that injecting medication directly into the shoulder joint might cause irreparable cartilage damage.

Panacryl Sutures: MDL JUDGE SENDS SUTURE SUIT BACK TO MISSOURI STATE COURT, Englemen v. Johnson & Johnson, 17 No. 25 Westlaw Journal Medical Devices 8, Westlaw Journal Medical Devices January 31, 2011
The North Carolina federal judge presiding over the consolidated suits on Johnson & Johnson's failed Panacryl sutures has returned an infection case to Missouri state court, rejecting J&J's claim that a Missouri medical products supplier was fraudulently joined to defeat federal court jurisdiction. U.S. District Judge Terrence W. Boyle of the Eastern District of North Carolina rejected defense arguments that remand should be denied.

Pain Patch: DESIGN, MANUFACTURING DEFECT CLAIMS STAND IN OHIO PAIN-PATCH DEATH SUIT, Miller v. Alza Corp., 17 No. 25 Westlaw Journal Medical Devices 9, Westlaw Journal Medical Devices January 31, 2011
Alza Corp. must face design and manufacturing defect allegations by the survivors of an Ohio man who died when a pain patch he was wearing allegedly leaked a fatal overdose of fentanyl. U.S. District Judge Timothy S. Black of the Southern District of Ohio denied Alza's motion to dismiss the claims, holding that circumstantial evidence surrounding Cornell Phillips' 2006 death created a genuine issue of fact on whether the Alza patch Phillips was using when he died had a leak. 

Lasik Surgery: WOMAN NEEDS CORNEA TRANSPLANT AFTER FAILED LASER SURGERIES, SUIT SAYS, Linegar v. Lobanoff, 17 No. 25 Westlaw Journal Medical Devices 11, Westlaw Journal Medical Devices January 31, 2011
Three failed laser eye surgery procedures in less than one year have left a woman with an irreversibly scarred cornea, according to a lawsuit filed in Minnesota federal court. Layla Linegar says she now needs a cornea transplant in her left eye. Ophthalmologist Mark Lobanoff assured Linegar she was a suitable candidate for Lasik surgery after examining her in December 2008, according to the complaint filed in the U.S. District Court for the District of Minnesota.

 17 No. 25 Westlaw Journal Medical Devices 12, Westlaw Journal Medical Devices January 31, 2011
FDA panel weighs tougher rules for defibrillators The Food and Drug Administration is considering enacting tougher restrictions to force the makers of automatic external defibrillators to submit added data before offering the devices for sale. The FDA, which notes that 300,000 Americans collapse from sudden cardiac arrests annually, says that since 2006, AED makers have issued 68 product recalls, affecting hundreds of thousands devices. The agency says regulatory review is needed.

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