Cleveland Sole Practitioner Wins Supreme Court Decision on Ex-Prisoner's $625K Award Reinstatement

ABA Journal Law News Now posted by Debra Cassens Weiss, Jan 24, 2011

"A Cleveland solo who works out of a spare bedroom in his apartment has won a U.S. Supreme Court victory for his client, a former Ohio inmate who sued prison officials for doing nothing to prevent her sexual assault.

David Eduard Mills had never argued a case before the U.S. Supreme Court before his Nov. 1 appearance, the ABA Journal reported last fall. . . . .Mills’ client, Michelle Ortiz, had won a $625,000 judgment against Ohio prison officials, but it was overturned by the Cincinnati-based 6th U.S. Circuit Court of Appeals. Ortiz had claimed a prison official did nothing after she complained of threats by a male guard who later sexually assaulted her. Then when she complained again, she was placed in solitary confinement."

More.
The Supreme Court decision.

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Plaintiff Who Discussed Suit with Lawyer on Work E-Mail Can’t Claim Privilege, Court Says

From ABA Journal, Law News Now, Jan. 20, 2011, posted by Debra Cassens Weiss

"A woman who sued her employer claiming discrimination can’t shield her lawyer e-mails in the litigation because they were sent from her work e-mail account, a California appeals court has ruled." More.

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Peppered shrimp with lemon, capers and criminal law

Attorney's fees -- Proposal for settlement -- Contracts -- Prevailing party -- Mutuality of obligation -- Action against seller of business and real property by broker and co-broker who alleged they had fully performed brokerage commission agreement with seller by producing ready, willing and able buyer -- Seller's proposals for settlement were not ambiguous in this case for failing to include language stating which side would pay the amount offered or failing to clarify, in one paragraph, whether proposals applied to claims “in this action” as opposed to claims which may have accrued in the future -- Good faith -- Offer of $500 on commission claim which plaintiffs claimed was worth $300,000 bore reasonable relationship to amount of damages and realistic assessment of liability where seller contended that brokerage commission contract was unenforceable because the contract with the potential buyer was unenforceable -- Seller was entitled to recover its attorney's fees against contracting broker pursuant to section 57.105(7), which provides for reciprocal recovery of attorney's fees under contractual prevailing party provision -- Seller was not entitled to recover its attorney's fees against co-broker as intended third-party beneficiary of broker agreement containing prevailing party attorney's fees provision where contract between seller and broker did not express an intent to primarily and directly benefit co-broker, but simply mentioned that broker could co-broker the listing -- Co-broker, which alleged in complaint that it was third-party beneficiary of contract between brokerage and seller, not judicially estopped from denying status as third-party beneficiary of contract where co-broker did not successfully maintain that position in circuit court -- Costs -- Error to deny prevailing seller's motion for taxable costs against brokers

LAND & SEA PETROLEUM, INC., Appellant, v. BUSINESS SPECIALISTS, INC. and CONTINENTAL BUSINESS, INC., Appellees. 4th District.

Baker Act -- Involuntary commitment under Baker Act of defendant who had been found incompetent to stand trial on criminal charges -- Although evidence supports finding that defendant suffers from psychotic disorder, evidence was insufficient to support finding that defendant is suffering from “ongoing” psychosis -- Trial court properly found that defendant meets criteria for involuntary inpatient placement under Baker Act where evidence showed that there is a substantial likelihood that defendant will inflict serious bodily harm on himself or others, that defendant is manifestly incapable of surviving alone, that without treatment, defendant is likely to suffer from neglect or refuse to care for himself which would pose a real threat of substantial harm to himself or others, and that placement with defendant's family was not appropriate -- Defendant's due process rights were violated when his counsel's request to present closing argument at evidentiary hearing was denied -- Remand to allow parties' attorneys to make closing arguments

EDWIN BURLEY, Appellant, v. THE STATE OF FLORIDA, Appellee. 3rd District.

Civil procedure -- Dismissal -- Failure to prosecute -- Good cause -- Plaintiff did not file timely showing of good cause where showing of good cause was filed four days before hearing on Notice of Lack of Prosecution -- Rule 1.420(e) provides that showing of good cause must be made “at least 5 days before the hearing,” and rule establishes a bright line for providing good cause -- Error to deny motion to dismiss for lack of prosecution

JAMES E. TURNER, Appellants, v. FIA CARD SERVICES, N.A., etc., Appellee. 3rd District.

Criminal law -- Conspiracy to commit first-degree murder -- Limitation of actions -- Where victim was killed, but defendant was acquitted of murder charge and convicted of conspiracy to commit murder, prosecution of defendant for conspiracy to commit murder could be brought at any time -- Because defendant was convicted of a felony that resulted in a death, amended statute of limitations, providing that such prosecutions may be brought at any time, is applicable -- Acquittal of defendant on substantive murder charge did not prevent a finding that the conspiracy resulted in a death -- Prosecution was not barred by statute of limitations

MANUEL CALDERON, Appellant, vs. THE STATE OF FLORIDA, Appellee. 3rd District.

Criminal law -- Search and seizure -- Search of vehicle incident to arrest of driver -- Good faith exception to exclusionary rule -- Under precedent established by U.S. Supreme Court in Arizona v. Gant, several weeks after search in question, the search of defendant's vehicle incident to her arrest was unlawful where the search was conducted after defendant was handcuffed and in officers' patrol car -- Although trial court properly found that search was unlawful, it was error to grant motion to suppress where officers, in conducting search, relied in good faith on well-settled case law predating the decision in Arizona v. Gant in conducting the search

STATE OF FLORIDA, Appellant, v. KRISTY LYNN HARRIS, Appellee. 1st District.

Criminal law -- Habeas corpus -- Counsel -- Ineffectiveness -- Petitioner was not entitled to habeas relief ordered by Court of Appeals, where state-court decision concluding that defendant had not established ineffective assistance of counsel under Strickland was not unreasonable application of either part of Strickland rule -- Under 28 U.S.C. section 2254(d), federal habeas relief may not be granted with respect to any claim a state court has adjudicated on the merits, unless, among other exceptions, state-court decision denying relief involves “an unreasonable application” of “clearly established Federal law, as determined by” U.S. Supreme Court -- The relevant clearly established federal law is standard for ineffective assistance of counsel under Strickland, which requires a showing of “both deficient performance by counsel and prejudice”

JEFF PREMO, SUPERINTENDENT, OREGON STATE PENITENTIARY, Petitioner v. RANDY JOSEPH MOORE. U.S. Supreme Court.

Criminal law -- Habeas corpus -- Counsel -- Ineffectiveness -- Section 2254(d), which, as amended by Antiterrorism and Effective Death Penalty Act, limits the availability of federal habeas relief for claims previously “adjudicated on the merits” in state court proceedings, applies to petition for federal habeas relief when state court's order denying relief is unaccompanied by an opinion explaining the court's reasoning -- Petitioner was not entitled to the habeas relief ordered by Court of Appeals, where that court failed to accord the required deference to decision of state court adjudicating same claims later presented in federal habeas petition, and Court of Appeals erred in concluding that petitioner demonstrated an unreasonable application of Strickland by the state court when state court summarily denied claim that counsel was ineffective for failing to present expert testimony on blood evidence

KELLY HARRINGTON, WARDEN, Petitioner v. JOSHUA RICHTER. U.S. Supreme Court.

Dissolution of marriage -- Child support -- Modification -- Error to find that each party should be responsible for half of child's unreimbursed medical expenses -- Where noncovered expenses were not factored into the child support guidelines calculations, responsibility for expenses should be apportioned based on parties' relative incomes

MICHELLE ROWE f/k/a MICHELLE BORYSEK-RODRIGUEZ, Appellant, v. JOSE A. RODRIGUEZ-SCHMIDT, Appellee. 2nd District.

In re Fidler ,(Bkrtcy.D.Nev.)

Bankruptcy - Debtor's discharge did not foreclose "bad check" prosecution.

While a bankruptcy court could not enjoin a prosecutor from pursuing "bad check" charges against a discharged debtor, for writing insufficient funds checks toward debts later discharged in bankruptcy, it could sanction the complaining witnesses to the extent that it found that they were attempting to do an end-run around the debtor's discharge by attempting to collect discharged debts as restitution. Thus, while denying the debtor's motion for injunctive relief to preclude the state criminal prosecution from proceeding, the court retained jurisdiction to consider possible sanctions against the complaining witnesses up to and including disgorgement of any restitution that might result from the debtor's conviction on the relevant charges.

Liens -- Mechanic's lien may not be imposed against condominium association encumbering condominium units for amount owed for cleaning, maintenance, concierge, and security services -- Mechanic's lien statute is to protect those who have provided labor and materials for the improvement of property, and services provided by plaintiff did not improve property -- Plaintiff does not have independent right to claim of lien under section 718.121, Florida Statutes

PARC CENTRAL AVENTURA EAST CONDOMINIUM, etc., Appellant, v. VICTORIA GROUP SERVICES, LLC, et al., Appellees. 3rd District.

Mortgage foreclosure -- Default -- Vacation -- Trial court erred in denying motion to vacate default against junior mortgagee which had been joined as defendant in foreclosure action where junior mortgagee demonstrated excusable neglect, due diligence, and a meritorious defense -- In order for a party moving to set aside a default to demonstrate a meritorious defense the movant need only show that the defense is meritorious, not that it is likely to succeed -- Affirmative defenses, even when pled with minimal specificity, can qualify as meritorious

HOUSEHOLD FINANCE CORPORATION, III, Appellant, v. HENRY FRED MITCHELL, SR., DAVID W. PADOT, SR., and MARY ANN PADOT, his wife; ANY AND ALL UNKNOWN PARTIES CLAIMING BY, THROUGH, UNDER, OR AGAINST THE HEREIN NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALIVE, WHETHER SAID UNKNOWN PARTIES MAY CLAIM AS INTEREST AS SPOUSES, HEIRS, DEVISEES, GRANTEES OR OTHER CLAIMANTS; JOHN DOE and JANE DOE as unknown tenants in possession, and ANNE BARNETT; UNITED STATES OF AMERICA; and THE RIVERWALK OF FANNING SPRINGS HOMEOWNERS ASSOCIATION, INC., Appellees. 1st District.

Torts -- Medical malpractice -- Action which, in part, alleged that defendant laboratory was negligent in handling plaintiff's malignant tissue sample which got mixed up with tissue sample that was not malignant from another patient, with result that plaintiff was informed incorrectly that tissue sample was not malignant until she was informed of mistake seven months later -- Discovery -- Appeals -- Certiorari -- Review denied with respect to portions of trial court's orders requiring defendant diagnostic lab to produce information from medical records of the other patient, while protecting that patient's identity, because discovery request could lead to discovery of admissible evidence which was relevant to mix-up of tissue samples -- Trial court departed from essential requirements of law by requiring production of names and last known addresses of all medical providers known by lab to have treated the other patient and by allowing plaintiff's attorney and photographer to enter onto lab's premises

QUEST DIAGNOSTICS INCORPORATED, Petitioner, v. MARIA RAPIO, Respondent. 3rd District.

Privacy -- Disclosure of personal information -- Action by contract employees at National Aeronautics and Space Administration facility challenging questions on standard background check relating to employee's drug involvement and drug treatment or counseling received by employee and also challenging questionnaire form sent to employee's references that asks open-ended questions about whether they have “any reason to question” employee's “honesty or trustworthiness” or have “adverse information” concerning a variety of other matters -- Assuming, without deciding, that Constitution protects privacy interest in avoiding disclosure of personal matters, portions of government's background check challenged in present case do not violate this right -- Government's interests as employer and proprietor in managing its internal operations, combined with protections against public dissemination provided by Privacy Act, satisfy any “interest in avoiding disclosure” that may “arguably ha its roots in the Constitution”

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, et al., Petitioners v. ROBERT M. NELSON et al. U.S. Supreme Court.

U.S. v. Hall,(D.Me.)

Writs - United States could garnish debtor's funds to enforce criminal judgment requiring payment of costs of prosecution.

The garnishment method chosen by the United States to enforce a valid criminal judgment against the debtor for tax evasion, which imposed as part of the sentence an order that he pay a particular amount as costs of prosecution, was an enforcement mechanism available and authorized under federal law and therefore a writ of garnishment could issue listing the state as garnishee of debtor's non-exempt funds, which had been seized pursuant to a search warrant and controlled by state.

U.S. v. Diaz ,(C.A.11 (Ga.))

Criminal Justice - Government bore burden of proof in seeking order requiring that schizophrenic defendant be involuntarily medicated.

Joining most of the other Circuits that have addressed the issue and disagreeing with a contrary Tenth Circuit decision, the Eleventh Circuit Court of Appeals held that a district court's finding, in support of an order requiring that a defendant be involuntarily medicated, that the government had an important interest in proceeding to trial on the armed bank robbery charges against him, was a conclusion of law reviewable de novo, while the district court's findings on the other Sell factors were factual findings reviewable for clear error. The Eleventh Circuit also held that the government, as the party seeking to involuntarily medicate the defendant to render him competent to stand trial, bore the burden of proof on the factual findings needed to support an involuntary medication order, and had to satisfy that burden by clear and convincing evidence.

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Peppermint chocolate truffles and healthy insurance developments

Health Care Reform: VIRGINIA FEDERAL JUDGE DERAILS PART OF HEALTH CARE REFORM LAW, Commonwealth v. Sebelius, 18 No. 8 Westlaw Journal Health Law 1, Westlaw Journal Health Law December 21, 2010
A federal judge in Virginia has rejected a key part of President Obama's health care reform law, ruling it is unconstitutional to require people to purchase or obtain health insurance or face a penalty. U.S. District Judge Henry Hudson of the Eastern District of Virginia is the first jurist in the country to rule that Congress exceeded its constitutional authority in setting the minimum-coverage mandate."An individual's personal decision to purchase, or decline purchase, of health insurance.

Medicaid Services: CUTS IN MEDICAID HOME SERVICES WILL HURT LOUISIANA, SUIT SAYS, Pitts v. Greenstein, 18 No. 8 Westlaw Journal Health Law 2, Westlaw Journal Health Law December 21, 2010
Several low-income Louisiana residents say that although the state has announced budgetary cuts to home services, it has no clear plan to prevent nearly 11,000 needy people from being institutionalized in nursing facilities. Plaintiffs Helen Pitts, 78, Kenneth Roman, 47, Denise Hodges, 53, and Ricki Ainey 30, filed a class-action lawsuit, asserting the state's Department of Health and Hospitals is poised to slash its long-term personal care services program to help shore up a $1.6 million budget.

Medicare Fraud: CLINIC OWNERS GET PRISON FOR STEALING MEDICARE FUNDS, United States v. Pearson, 18 No. 8 Westlaw Journal Health Law 3, Westlaw Journal Health Law December 21, 2010
The owners of a defunct Mississippi clinic accused of cheating Medicare and Medicaid of millions of dollars have been sentenced to federal prison. U.S. District Judge Keith Starrett of the Southern District of Mississippi sentenced Theddis Marcel Pearson and Telandra Gail Jones to 10 years in prison and ordered them to pay $18 million in restitution. He also ordered them to forfeit $3.6 million in cash already seized by federal authorities.The defendants owned Statewide Physical Medicine Group.

Dental Malpractice: NEGLIGENT TOOTH EXTRACTION CAUSED WOMAN'S BLINDNESS, SUIT SAYS, Harrison v. United States, 18 No. 8 Westlaw Journal Health Law 4, Westlaw Journal Health Law December 21, 2010
A Kentucky woman says her sinus cavity was punctured during a tooth extraction at a federally operated health clinic, which caused life-threatening injuries and complete vision loss in her left eye. According to the complaint filed in the U.S. District Court for the Eastern District of Kentucky, Tammy Harrison saw Dr. Chaz Vose, a dentist at the White House Clinics-Berea, Aug. 20, 2009, to repair a cavity in her upper left molar. Vose performed an extraction that day.

Medical Device: MEDICAL DEVICE SUPPLIER ISN'T 'HEALTH CARE PROVIDER', Orthopedic Res. v. Swindell, 18 No. 8 Westlaw Journal Health Law 5, Westlaw Journal Health Law December 21, 2010
A trial court correctly determined that a medical device distributor is not a "health care provider" in the context of a Texas law requiring that plaintiffs file expert reports to accompany medical malpractice lawsuits, a state appeals court has found. A three-judge panel of the Court of Appeals in Dallas said distributor JTW Medical Products Inc. was acting outside the scope of its contract with a health care provider when its president allegedly gave a patient's husband faulty information.

Medical Malpractice: DOCTOR'S NEGLIGENCE, NOT MAN'S INTOXICATION, CAUSED INJURY, Beebe v. Hartman, 18 No. 8 Westlaw Journal Health Law 6, Westlaw Journal Health Law December 21, 2010
A Michigan appeals court has ruled that a Michigan man's intoxication at the time of a snowmobiling accident does not shield his doctor from malpractice liability allegedly associated with the treatment of his injuries. The ruling reverses the Branch County Circuit Court's order granting summary judgment to Dr. Christina Sheely and her practice pursuant to Mich. Comp. Laws 600.2955a.The law provides an absolute defense in an action over the death or injury of a person when alcohol impairment.

Nursing Homes: PATIENTS SUFFER SUB-PAR CARE AT CALIFORNIA FACILITIES, CLASS ACTION SAYS, Valentine v. Thekkek Health Servs., 18 No. 8 Westlaw Journal Health Law 7, Westlaw Journal Health Law December 21, 2010
A group of California skilled nursing facilities operated by Paksn Inc. has "systematically" failed to meet state minimums for direct patient care and staffing, according to a state court class action. Maryann N. Valentine says Vacaville, Calif.-based Paksn, Thekkek Health Services, and seven nursing homes and licensees owned by Antony and Prema Thekkek have continuously failed to provide 3.2 hours of daily, direct nursing care to each patient as mandated by Cal. Health & Safety Code.

Nursing Homes: HOME'S NEGLECT CAUSED ACTOR GENE BARRY'S DEATH, FAMILY SAYS, Barry v. Sunrise of Woodland Hills, 18 No. 8 Westlaw Journal Health Law 8, Westlaw Journal Health Law December 21, 2010
The children of film and television actor Gene Barry have alleged in a California state court lawsuit that a Los Angeles-area nursing home caused his death by neglecting to monitor his condition after a debilitating fall. According to the complaint filed in the Los Angeles County Superior Court, Sunrise of Woodland Hills admitted Barry in 2009 despite knowing it was not equipped to meet his needs as an Alzheimer's and dementia sufferer.

Pharmaceuticals: GLAXO AND SUBSIDIARY SETTLE CIVIL, CRIMINAL CASES FOR $750 MILLION, United States v. GlaxoSmithKline, 18 No. 8 Westlaw Journal Health Law 9, Westlaw Journal Health Law December 21, 2010
Pharmaceutical firm GlaxoSmithKline has agreed to pay the government $600 million, and its SB Pharmco subsidiary will plead guilty to violating federal law and pay a $150 million fine for shoddy drug manufacturing at a Puerto Rico plant. The civil and criminal cases were based on violations of the Food, Drug and Cosmetic Act, 21 U.S.C. 351(a)(2)(B), at SB Pharmco's now-closed plant in Cidra, Puerto Rico.

Obstruction of Justice: FORMER GLAXO LAWYER CHARGED WITH OBSTRUCTION IN 'OFF-LABEL MARKETING' CASE, United States v. Stevens, 18 No. 8 Westlaw Journal Health Law 10, Westlaw Journal Health Law December 21, 2010
A former vice president and in-house counsel at GlaxoSmithKline has been indicted for allegedly withholding documents from the Food and Drug Administration during an investigation into the marketing of an antidepressant for unapproved uses. The Justice Department identified the attorney as Lauren Stevens, of Durham, N.C. The charges were filed in the U.S. District Court for the District of Maryland. Although the drug and the name of Stevens' employer were not disclosed in the agency's statement.

Wrongful Death: LACK OF BLOOD FOR DYING MOM COSTS MINNESOTA HOSPITAL $4.6 MILLION, Calcagno v. Emery, 18 No. 8 Westlaw Journal Health Law 11, Westlaw Journal Health Law December 21, 2010
A Minnesota jury has awarded $4.6 million to the family of woman who died following the birth of her first child because the hospital did not have enough blood for a transfusion. Claudia Calcagno, 36, died hours after giving birth to her son Jan. 18, 2008, at Monticello-Big Lake Community Hospital, according to the complaint filed in the Wright County District Court. Calcagno bled to death after Drs. Jennifer Emery and Timothy Olson could not perform a lifesaving transfusion.

News in Brief: NEWS IN BRIEF, 18 No. 8 Westlaw Journal Health Law 12, Westlaw Journal Health Law December 21, 2010
Christian group to challenge health care reform ruling A Christian legal group says it will challenge a federal judge's decision allowing the government to require uninsured individuals to purchase health insurance coverage. U.S. District Judge George Caram Steeh denied the Thomas More Law Center's request for an injunction against a provision in the Patient Protection and Affordable Care Act that imposes a penalty on anyone who fails to buy or otherwise obtain health insurance by 2014.
Automotive (Personal Jurisdiction): OVERSEAS GOODYEAR COMPANIES SAY THEY CAN'T BE SUED IN U.S., Goodyear Luxembourg Tires v. Brown, 21 No. 12 Westlaw Journal Insurance Coverage 2, Westlaw Journal Insurance Coverage December 23, 2010
Goodyear companies based in Luxembourg, Turkey and France argue in a merits brief to the U.S. Supreme Court that they should not be subject to jurisdiction in this country simply because their products are sold here. "The exercise of general jurisdiction over petitioners, simply because their products reached North Carolina through the stream of commerce, violates the due-process clause," the companies say.
Automotive (Preemption): TRIAL LAWYERS: PREEMPTION RULING DENIED 'RIGHT TO LEGAL RECOURSE FOR INJURY', Williamson v. Mazda Motor Am., 21 No. 12 Westlaw Journal Insurance Coverage 3, Westlaw Journal Insurance Coverage December 23, 2010
The American Association for Justice says in an amicus brief filed with the U.S. Supreme Court that a California appeals court's ruling in a seat belt case "expands the doctrine of preemption far beyond its constitutional foundation." The group also says the decision denied the plaintiffs a valid remedy for wrongful death. The plaintiffs are Delbert and Alexa Williamson, the husband and daughter, respectively, of accident victim Thanh Williamson.

Bankruptcy: SUPREME COURT HEARS BANKRUPTCY CASE OVER OWNERSHIP COSTS FOR VEHICLES, Ransom v. MBNA Am. Bank, 21 No. 12 Westlaw Journal Insurance Coverage 4, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court heard oral argument Oct. 4 in a dispute over whether Chapter 13 debtors who own vehicles free and clear of any obligations can take the standard "ownership costs" deduction when calculating their projected disposable income. At issue is a 2009 decision by the 9th U.S. Circuit Court of Appeals that above-median-income debtors can deduct vehicle ownership expenses only if they are actually making automobile loan or lease payments.
Bankruptcy: FEDS, TRUSTEES GROUP BACK ANNA NICOLE SMITH'S ESTATE IN SUPREME COURT, Stern v. Marshall, 21 No. 12 Westlaw Journal Insurance Coverage 5, Westlaw Journal Insurance Coverage December 23, 2010
The federal government and a group of bankruptcy trustees have told the U.S. Supreme Court that a bankruptcy judge had the authority to award Anna Nicole Smith a huge chunk of her billionaire husband's estate. Acting U.S. Solicitor General Neal Katyal and the National Association of Bankruptcy Trustees filed separate amicus briefs supporting Smith's former boyfriend and lawyer, Howard K. Stern, in his bid to reinstate the late bombshell's inheritance.Stern claims the 9th U.S. Circuit Court of Appeals.
Class Action: SUPREME COURT TO DECIDE IF STATES CAN BAN CLASS-ACTION WAIVERS, AT&T Mobility v. Concepcion, 21 No. 12 Westlaw Journal Insurance Coverage 6, Westlaw Journal Insurance Coverage December 23, 2010
In a case that could affect the future of class-action litigation, the U.S. Supreme Court heard oral argument Nov. 9 to determine if federal arbitration law preempts state laws that ban class-action waivers in contracts. AT&T Wireless customers filed three suits in California federal court in 2005 and 2006, alleging the telecom fraudulently charged $30 in sales tax for phones it advertised as "free." Although the company tried to force the plaintiffs to arbitrate their claims.
Class Action (Pharmaceuticals): HIGH COURT TAKES UP CLASS CERTIFICATION FIGHT IN SUIT OVER RECALLED DRUG, Smith v. Bayer Corp., 21 No. 12 Westlaw Journal Insurance Coverage 7, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court will hear oral argument Jan. 18 over whether a West Virginia man's proposed state court class action over the cholesterol drug Baycol was properly blocked because a similar suit had already been rejected by a Minnesota federal court. Keith Smith filed a proposed economic-loss class action against Baycol maker Bayer Corp. in a West Virginia state court shortly after the drug's 2001 recall. The suit was dismissed in a ruling later affirmed by the 8th U.S. Circuit Court of Appeals.

Class Action (Employment): WAL-MART GETS HIGH COURT TO HEAR LARGEST-EVER CLASS ACTION, Wal-Mart Stores v. Dukes, 21 No. 12 Westlaw Journal Insurance Coverage 8, Westlaw Journal Insurance Coverage December 23, 2010
In a move that is expected to permanently change the landscape of class- action lawsuits, the U.S. Supreme Court has agreed to hear Wal-Mart Stores' challenge to a gender discrimination lawsuit with 1.5 million potential plaintiffs. "While not unprecedented, the Supreme Court's decision to address this issue likely signals that it intends to review the underpinnings of the expansive class certified in this case and the extent to which the pursuit of punitive damages impacts the certification.

Computer & Internet (First Amendment): CALIFORNIA, VIDEO GAME INDUSTRY GO TO BATTLE OVER VIOLENT-GAMES BAN, Schwarzenegger v. Entm't Merchants Ass'n, 21 No. 12 Westlaw Journal Insurance Coverage 9, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court heard oral argument Nov. 2 in California's bid to reinstate its ban on the sale of violent video games to minors. The state is challenging a decision of the 9th U.S. Circuit Court of Appeals that struck down the law last year. Video Software Dealers Ass'n v. Schwarzenegger, 556 F.3d 950 (9th Cir. 2009).The appeals court upheld a ruling in favor of the Entertainment Software Association and the Video Software Dealers Association, two industry trade groups that sued the state.

Employment (Roundup): SUPREME COURT AGREES TO SETTLE EMPLOYMENT LAW CONFLICTS, 21 No. 12 Westlaw Journal Insurance Coverage 10, Westlaw Journal Insurance Coverage December 23, 2010
So far this term, the U.S. Supreme Court has agreed to review eight employment-related lawsuits, including Wal-Mart Stores v. Dukes, by far the most watched case this year. Dukes is a huge gender-bias class action with a potential plaintiff class of 1.5 million women and billions in damages. This roundup looks at six of those cases, which cover a range of topics, including workplace privacy, third-party retaliation, liability for employment of "unauthorized aliens".

Employment: JUSTICES TO DECIDE IF ORAL COMPLAINT COVERED BY WAGE-AND-HOUR STATUTE, Kasten v. Saint-Gobain Performance Plastics Corp., 21 No. 12 Westlaw Journal Insurance Coverage 11, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court heard argument in October in a case where an employer accused of retaliation under a federal wage-and-hour law has defended itself by arguing the fired employee's oral complaint is not protected under the statute. A decision in the case is expected to have huge ramifications for workers who hope to prove that they were targeted for retaliation because they engaged in a protected activity. This is especially relevant given the fact that employees frequently complain orally.

Environmental: CLIMATE CHANGE CASE HEADS TO SUPREME COURT, Am. Elec. Power Co. v. Connecticut, 21 No. 12 Westlaw Journal Insurance Coverage 12, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court said Dec. 6 it would review an appeals court decision that revived a public nuisance lawsuit against several power companies by eight states seeking to reduce greenhouse gas emissions from coal-burning facilities. The companies want the high court to decide whether judges can regulate greenhouse gas emissions at the behest of states and private parties and, if so, under what standards. Attorney Richard Faulk of Gardere Wynne Sewell.
Government Contract: STATE SECRETS PRIVILEGE TESTED IN GOVERNMENT CONTRACT CASE, Gen. Dynamics Corp. v. United States, 21 No. 12 Westlaw Journal Insurance Coverage 13, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court will be determining the role of the state secrets privilege in a lawsuit brought by two companies challenging the government's termination of their contract to build Navy jets. The high court agreed to hear the case Sept. 28 upon the request of both Boeing Co., as the successor to McDonnell Douglas Corp., and General Dynamics Corp. The companies are asking the Supreme Court to decide whether the government can assert the state secrets privilege.

Intellectual Property (Patent Infringement): STANDARD FOR INDUCEMENT OF PATENT INFRINGEMENT IS BEFORE HIGH COURT, Global-Tech Appliances v. SEB S.A., 21 No. 12 Westlaw Journal Insurance Coverage 14, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court has agreed to decide whether "deliberate indifference" is the correct standard for the "state of mind" element in a claim for active inducement of patent infringement. Petitioner Pentalpha Enterprises Ltd. argues that the U.S. Court of Appeals for the Federal Circuit got it wrong when it applied the deliberate- indifference standard. The appeals court should have used the "purposeful, culpable expression and conduct" standard applied by the Supreme Court in MGM Studios.
Intellectual Property: UNIVERSITY'S PATENT RIGHTS BATTLE WITH BIOTECH FIRM ON COURT'S DOCKET, Stanford Univ. v. Roche Molecular Sys., 21 No. 12 Westlaw Journal Insurance Coverage 16, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court has agreed to decide whether a federal law pertaining to government contractors' patent assignment rights barred a Stanford University researcher from assigning his rights to a third party. In its petition for certiorari Stanford said the U.S. Court of Appeals for the Federal Circuit was wrong when it said no. Opposing Stanford is Roche Molecular Systems, which says the Federal Circuit correctly decided that the Bayh-Dole Act, 35 U.S.C. 200, did not bar the assignment.

Pharmaceutical (Preemption): COURT TO RULE ON PREEMPTION OF STATE LAW CLAIMS AGAINST VACCINE MAKERS, Bruesewitz v. Wyeth Inc., 21 No. 12 Westlaw Journal Insurance Coverage 17, Westlaw Journal Insurance Coverage December 23, 2010
In oral argument held Oct. 12 the U.S. Supreme Court grappled with the question of whether the National Childhood Vaccine Injury Act bars all design defect claims or whether a family has recourse for an injury in state court. The case was argued before eight justices. Justice Elena Kagan recused herself because she was serving as U.S. solicitor general when the government submitted an amicus brief urging the high court to review the case.A 4-4 tie would result in a win for defendant Wyeth Inc.

Securities Litigation & Regulation (Fraud): JUSTICES WEIGH ARGUMENTS ON INVESTMENT ADVISERS' 'MISLEADING' STATEMENTS, Janus Capital Group v. First Derivative Traders, 21 No. 12 Westlaw Journal Insurance Coverage 18, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court heard arguments Dec. 7 in a case that will decide whether shareholders can sue mutual fund manager Janus Capital Group for allegedly helping to mislead investors. The plaintiff, First Derivative Traders, traded shares of Janus stock and alleged that the stock price was artificially inflated as a result of misleading statements in the prospectuses. In November several groups filed amicus briefs supporting the plaintiff's position.

Securities Litigation & Regulation (Fraud): HIGH COURT TO RULE ON DRUG COMPANIES' DUTY TO DISCLOSE 'ADVERSE EVENTS', Matrixx Initiatives v. Siracusano, 21 No. 12 Westlaw Journal Insurance Coverage 19, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court is set to hear arguments in a securities fraud case that has the pharmaceutical industry alarmed over the prospect of having to disclose to investors so-called "adverse event reports" even when those reports are statistically trivial. Adverse event reports are anecdotal complaints from users indicating harm from a pharmaceutical product. The case involves Zicam, an over-the-counter cold remedy marketed by defendant Matrixx Initiatives Inc.

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