Monday, May 30, 2011

Attorneys' fees, burgers with extra sharp cheddar cheese, and apple pie with rosemary-butter crust and vanilla bean ice cream

Attorney's fees -- Quantum meruit -- Trial court erred in concluding that fees could not be awarded solely because counsel did not keep, or attempt to recreate, accurate time records -- Although time spent on case is one factor to be considered under quantum meruit theory, trial court must consider totality of circumstances in computing reasonable value of services rendered
Reported at 36 Fla. L. Weekly D1028c

Attorney's fees -- Offer of judgment -- Consumer law -- Florida Consumer Collection Practices Act preempts award of attorney's fees and costs pursuant to offer of judgment/proposal for settlement -- Motion to strike and to remove offer of judgment/proposal for settlement from court file is granted

Attorney's fees -- Costs -- Proposal for settlement -- Prevailing party -- Proposal for settlement under section 768.79, Florida Statutes, does not cut off a prevailing party's claim for contractual attorney's fees and costs incurred after the date of the proposal -- Trial court properly awarded defendant attorney's fees and costs incurred after the date of its valid proposal for settlement, and properly awarded plaintiff, which prevailed in its breach of contract action, all of its attorney's fees and costs through trial pursuant to a prevailing party attorney's fees provision in contract
Reported at 36 Fla. L. Weekly D1049b

Attorney's fees -- Prevailing party -- Mutuality of obligation -- Mortgage foreclosure -- A defendant was entitled to recover attorney's fees as a prevailing party under section 57.105(7), where mortgage entitled mortgagee to reasonable attorney's fees for enforcement, after court granted motion to dismiss mortgage foreclosure and dismissed the case without prejudice -- Pleading requirement -- It was proper for defendant to seek attorney's fees in a motion filed after entry of dismissal without prejudice where she had not yet filed a responsive pleading -- Plaintiff's voluntary dismissal makes a defendant a prevailing party even where plaintiff refiles the case and prevails
Reported at 36 Fla. L. Weekly D1065a

Attorney's fees -- Trial court erred in awarding attorney's fees at an hourly rate that exceeded the rate agreed to by party's attorney in noncontingent fee agreement -- Alternative fee recovery clause in fee agreement, which provided for an award of the greater of the contract fee or the amount awarded by the court, is unavailing where fee arrangement was not contingent and party's attorney did not assume any risk of nonpayment for his services.
36 Fla. L. Weekly D1139a

Banks -- Settlement of checks -- Unjust enrichment -- Class action against bank for violation Section 655.85, Florida Statutes, by charging check-cashing service fee on personal check presented in person by non-account-holding payee and for unjust enrichment -- Federal preemption -- Florida statute, which prohibits a bank from settling any check drawn on it other than at par, is preempted by regulations promulgated by Office of Comptroller of Currency pursuant to National Banking Act -- Florida's par value statute, which prohibits charging fees to non-account-holders, is in substantial conflict with OCC regulations which specifically authorize banks to charge fees to non-account-holders presenting checks for payment -- Unjust enrichment claim which relies on identical facts as claim under Florida statute is also preempted -- Unjust enrichment claim also fails as matter of law because plaintiff cannot prove each element of claim
Reported at 22 Fla. L. Weekly Fed. C2036a

Bankruptcy -- Exempt property -- Personal property -- Enhanced statutory exemption -- A debtor who initially did not claim, then claimed, and then disclaimed the benefit of Florida's constitutional homestead exemption is not receiving the benefit of the constitutional homestead exemption and can use Section 222.25(4), Florida Statutes, to claim an additional $4000 exemption for personal property -- Act of not claiming, claiming, and then disclaiming Florida's constitutional homestead exemption does not constitute sufficient prejudice, concealment, or bad faith to disallow debtor's final amendment to schedules disclaiming the homestead exemption and claiming the personal property exemption -- Debtor is not receiving the benefits of homestead exemption by virtue of her relationship with her ex-husband, where they are divorced and do not hold the homestead as tenants by entireties since only married persons can do so under Florida law -- Both statutory and constitutional personal property exemptions may be utilized so long as debtor is not also claiming the constitutional homestead exemption
Reported at 22 Fla. L. Weekly Fed. B674a

Civil rights -- Public accommodations -- Further factfinding is required by Florida Commission on Human Relations regarding whether the presence of a restaurant and tiki hut transformed a marina into a public accommodation for purposes of Florida Civil Rights Act -- If the restaurant and tiki hut are located on the marina's property, and if the marina serves their patrons, the marina would qualify as a public accommodation
Reported at 36 Fla. L. Weekly D1035b

Counties -- Code enforcement -- Appeals -- Circuit court, sitting in appellate capacity, did not depart from essential requirements of law in finding that property owner's motion for rehearing of special master's violation order was untimely where motion was filed more than thirty days after violation order was entered -- Circuit court departed from essential requirements of law in finding that notice of appeal from enforcement orders imposing penalty/lien was untimely -- Although property owner failed to timely appeal violation order, this failure does not bar her from appealing subsequently entered enforcement orders -- Circuit court also departed from essential requirements of law when it affirmed the orders under review after it concluded that it lacked jurisdiction over the appeal
Reported at 36 Fla. L. Weekly D1079b

Dependent children -- Violation of “Stipulation for Plan of Treatment” -- General master did not have authority to conduct adjudicatory hearing under section 39.507, which requires that such hearings be conducted by judge -- Moreover, rule 8.257(h) prohibits general magistrate from presiding over adjudicatory hearing under section 39.507 -- Rule further provides that no matter shall be heard by general magistrate without appropriate order of referral -- Finally, agency presented no evidence to show that mother materially violated stipulation or that child was otherwise dependent within meaning of statute
Reported at 36 Fla. L. Weekly D1045b

Dissolution of marriage -- Support -- Trial court abused discretion by requiring husband to provide health insurance for wife without setting any limitation as to amount he would have to pay to comply with requirement -- Court erred in requiring husband to maintain life insurance to secure alimony and child support in an amount in excess of life insurance currently maintained by husband where there was insufficient evidence that insurance in excess of insurance currently maintained was available or reasonably affordable -- Court erred in failing to allocate amount of insurance designated to secure alimony award and amount designated to secure child support award -- Court did not err in requiring husband to contribute to children's private school tuition and related expenses -- Trial court's requirement that husband contribute to the costs of children's extracurricular activities construed to apply only to those extracurricular activities that are agreed to by the parties pursuant to shared parental responsibility
Reported at 36 Fla. L. Weekly D1021a

Employee benefit plans -- Pension -- Challenge to new plan which, in some respects, was less generous than prior plan -- District court, having determined that plan fiduciary's failure to give plan beneficiaries proper notice of changes to their benefits caused its employees sufficient injury to warrant legal relief, lacked authority to reform the plan under section 502(a)(1)(B) of Employee Retirement Income Security Act, which authorizes plan participant or beneficiary to bring civil action to recover benefits due under terms of plan -- However, relief is authorized by section 502(a)(3), which allows a participant, beneficiary, or fiduciary to obtain “other appropriate equitable relief” to redress violations of ERISA or a plan's terms -- Relevant standard of harm will depend upon the equitable theory by which the district court provides relief -- Discussion of equitable principles that may apply on remand
Reported at 22 Fla. L. Weekly Fed. S985a

Estates -- Creditors' rights -- Where bank was secured creditor of deceased physician's professional association under a note and mortgage which provided bank with right of setoff in all professional association's accounts with bank, with decedent being a personal guarantor of the note, it was error to enter order directing transfer of funds in professional association's account at bank to the depository account established for the administration of decedent's estate at another bank -- Order impaired bank's right of setoff -- The affairs of a corporation, even though substantially owned by a decedent, cannot be administered by decedent's executor as assets of the decedent's estate -- Trial court order is reviewable non-final order
Reported at 36 Fla. L. Weekly D1079a

False Claims Act -- Public disclosure bar -- A federal agency's written response to a request for records under Freedom of Information Act constitutes a “report” within meaning of FCA's public disclosure bar
Reported at 22 Fla. L. Weekly Fed. S975a

Insurance -- Life insurance -- Insurable interest -- Where insurance agent procured life insurance policy on the life of his client, with a trust named as owner and beneficiary of the policy, trial court properly found that the trust did not have an insurable interest in the insured's life, and that the policy was void ab initio -- Trial court properly determined that the trust was not entitled to a refund of any premiums paid -- Where a party wrongfully procures a life insurance policy on an individual in whom it has no insurable interest, the party is not entitled to a return of premiums paid for the void policy
Reported at 36 Fla. L. Weekly D1022a

Insurance -- Windstorm -- Action by insured, a not-for-profit corporation operating as condominium association, against insurer, seeking declaratory judgment establishing that glass windows and sliding glass doors that provide access to a single condominium unit are covered under policies issued by insurer and that insurer improperly failed to consider these items when it determined that the amount of plaintiff's covered loss from hurricane was less than applicable hurricane deductible; seeking declaratory judgment establishing that plaintiff is entitled to have dispute concerning amount of its hurricane loss resolved through appraisal process described in the policies; and further seeking declaratory judgment establishing that hurricane deductible in the policies is void under state law which requires specific disclosures to be made with certain font requirements -- Count seeking declaration that glass windows and sliding glass doors are covered dismissed based on absence of justiciable controversy between parties, as complaint contains no allegation that before filing the case plaintiff expressed disagreement with insurer's adjustment of claim or that insurer ever took position that windows and sliding glass doors were not covered under the policy -- Count demanding appraisal is premature where complaint does not allege that plaintiff informed insurer of any disagreement concerning insurer's position before filing suit or that insurer disagreed with plaintiff's position -- Because resolution of third count will be directly impacted by Florida Supreme Court's decision in case pending before it, stay of that count is warranted
Reported at 22 Fla. L. Weekly Fed. D595a

Insurance -- Attorney's fees -- Insured prevailing in action against insurer -- Amount of fee -- Where contingent fee contract between insured and her attorney provided for an hourly rate of $300, it was error for court to award fees on the basis of an hourly rate of $350
Reported at 36 Fla. L. Weekly D1082a

Insurance -- Homeowners -- Overhead and profit -- Under terms of replacement cost policy, insured was not entitled to payment from insurer for overhead and profit where insured had not hired a contractor to repair fire damage to insured home
Reported at 36 Fla. L. Weekly D1081a

Insurance -- Personal injury protection -- A PIP insurer may not elect to use Medicare Part B fee schedules set forth in section 627.736(5)(a)(2) when the subject policy specifies that the PIP insurer will pay 80% of medically necessary expenses -- Incorporation of PIP statute into policy did not give insurer the unilateral right to ignore the only payment methodology referenced in the policy
Reported at 36 Fla. L. Weekly D1062a

Jurisdiction -- Non-residents -- Minimum contacts -- Securities fraud -- Plaintiff, who alleged defendants were guilty of securities fraud based on individual defendants having made false statements in press releases and on internet message boards that corporate defendant had received offers to sell its stock to another company, failed to establish that defendants had sufficient minimum contacts with state to satisfy due process requirements -- There was no evidence that false statements were purposefully directed toward residents of Florida, and plaintiff failed to state any direct knowledge of significant business transactions in Florida by the defendants -- Fact that defendants have been sued in federal court in Florida by Securities and Exchange Commission for alleged securities violations does not satisfy requirement of establishing minimum contacts
Reported at 36 Fla. L. Weekly D1063a

Paternity -- Child born to intact marriage between legal father and mother cannot be subject of paternity proceeding brought by a biological father -- Trial court fundamentally erred in granting paternity petition and awarding legal rights and physical custody to biological father pursuant to nonexistent cause of action
Reported at 36 Fla. L. Weekly D1045a

Torts -- Medical malpractice -- Limitation of actions -- Where plaintiff purchased an automatic 90-day extension of statute of limitations on March 21, 2006, prior to the time limitations period would have otherwise expired on June 10, 2006, and defendant received plaintiff's notice of intent to initiate litigation on August 2, 2006, statute of limitations period began to run again ninety days later on November 1, 2006 -- Because immediately after tolling period thirty-seven days of the 90-day extension plaintiff had purchased remained, and remainder of period of statute of limitations was less than sixty days, plaintiff had sixty days from November 1, 2006, in which to file her complaint -- Complaint filed on January 17, 2007, seventy-eight days after November 1, 2006, was untimely
Reported at 36 Fla. L. Weekly D1046a

Torts -- Negligence -- Action against insurer, insurance broker, and insurance agent for lessee of vehicle which was owned by plaintiff-insurer's subrogee, seeking to recover amounts plaintiff paid in settlement of accident involving leased vehicle, alleging defendants breached duty owed to vehicle lessors and to general public to abide by standard insurance practices to issue automobile liability insurance coverage on leased vehicles as required by Florida vehicle leases and Florida statutes and that, by breaching this duty, defendants assisted the lessee-driver in breaching his lease, which required that lessee maintain certain levels of insurance -- Although preemptive effect of federal Graves Amendment did not preclude plaintiff from using equitable subrogation to assert a claim against defendants, negligence cause of action plaintiff sought to pursue against defendants failed as matter of law because, in providing insurance to the lessee, defendants owed no legal duty to lessor
Reported at 36 Fla. L. Weekly D1067a

Torts -- Workers' compensation -- Exclusive remedy -- Employer-employee relationship -- Help supply services employee -- Where contract between help supply services company and defendant plainly stated that the services to be performed by company's employees would be performed under the direction, supervision, and control of defendant, trial court did not err in entering summary judgment against plaintiff on ground that defendant had immunity from suit under section 440.11(2) -- Although plaintiff testified in deposition that she was paid by help supply services company, that she never received instruction from defendant on how to do her job, and that her personal supervisor was another employee of the help services company, the legal right of control the contract conferred on defendant is dispositive
Reported at 36 Fla. L. Weekly D1055a

Torts -- Interference with business relationship -- Evidence was insufficient to establish that defendant interfered with plaintiff's business relationships by accepting payments on automobile financing agreements made by plaintiff's customers where there was no showing that defendant had knowledge of the business relationship at the time he took the money
Reported at 36 Fla. L. Weekly D1027b

Torts -- Automobile accident -- Permanent injury -- Although determinations about the permanency of an injury are generally made by juries, where evidence of injury and causation is such that no reasonable inference could support a jury verdict for defendant, it is not improper to direct a verdict on the permanency issue for plaintiff -- Plaintiff can establish prima facie case of permanency by presenting expert testimony of permanency, and burden then shifts to defendant to present countervailing expert testimony, impeach plaintiff's expert, or present other evidence which creates direct conflict with plaintiff's evidence -- Where medical evidence on permanence is undisputed, unimpeached, or not otherwise subject to question based on other evidence at trial, jury is not free to ignore or arbitrarily reject that medical evidence and render a verdict in conflict with it -- Where medical experts agreed on permanency of plaintiff's thigh injury, trial court properly granted directed verdict on permanency of thigh injury -- As long as part of bodily injury arising out of motor vehicle accident involves a permanent injury within a reasonable degree of medical probability, plaintiff can recover noneconomic damages related to his pain, suffering, mental anguish, and inconvenience for all of the injuries related to the accident -- Appeals -- Defendant did not preserve for appellate review issues related to adequacy of jury instructions or verdict form regarding permanency where defense counsel voiced no objection when asked by trial court if instructions and verdict form were acceptable
Reported at 36 Fla. L. Weekly S211b

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Wednesday, May 25, 2011

Supreme Court issues decision on Eighth Amendment Cruel and Unusual Punishment

In Brown v. Plata, on May 23, 2011, the U.S. Supreme Court issued a strong opinion about prison overcrowding and inadequate medical care and the Eighth Amendment cruel and unusual punishment clause, which will impact both prisons and future civil rights cases based on these provisions. The opinion can be found here.

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Sunday, May 8, 2011

Arbitration, civil rights, and Mother's Day brunch, served with bruschetta and fresh basil

Arbitration -- Class actions -- Federal Arbitration Act prohibits States from conditioning enforceability of certain arbitration agreements on availability of classwide arbitration procedures -- California supreme court's Discover Bank decision, which held that class waivers in consumer arbitration agreements are unconscionable under certain circumstances, is preempted by FAA, because it stands as an obstacle to accomplishment and execution of full purposes and objectives of Congress
Reported at 22 Fla. L. Weekly Fed. S957a

Civil rights -- Search and seizure -- Excessive force -- Because 42 U.S.C. section 1983 is silent or “deficient” with respect to survival of a civil rights action in favor of another upon death of injured party, Section 1988(a) requires application of state survivorship law, provided that state law is “not inconsistent with the Constitution and laws of the United States” -- Alabama survivorship statute, which provides that unfiled personal injury claims do not survive death of injured party, is not inconsistent with Constitution and laws of the United States -- District court erred in denying defendant's motion to dismiss based on abatement of plaintiff's excessive force claims -- When Alabama survivorship statute is applied to action, which was not filed prior to death of injured party, excessive force claim abates under Alabama law
Reported at 22 Fla. L. Weekly Fed. C2003a

Consumer law -- Deceptive and unfair trade practices -- Trial court did not err in quashing civil investigative subpoena duces tecum issued by attorney general and served on law firm, seeking production of documents related to different subjects involving the law firm's representation of lending institutions in foreclosure cases -- Alleged conduct of the law firm in the present case does not fall within the rubric of “trade or commerce” as required for civil investigative subpoenas under Florida Deceptive and Unfair Trade Practices Act -- Subpoena centers on the law firm's conduct in the processing of foreclosure cases, as opposed to the initial applications for mortgages or the initial lending relationships, which would be more akin to traditional notions of “trade or commerce” as defined by the FDUTPA statute
Reported at 36 Fla. L. Weekly D884c

HOSPITAL WORKERS MUST ABIDE BY SMOKING BAN, 3RD CIRCUIT RULES, Armstrong County Mem'l Hosp. v. United Steel Union, 25 No. 19 Westlaw Journal Employment 4, Westlaw Journal Employment April 19, 2011
The 3rd U.S. Circuit Court of Appeals has determined that a hospital's ban on smoking on its property is reasonable pursuant to the terms of a collective bargaining agreement. The panel overturned an arbitrator's decision that the hospital must honor its past practice of allowing employees to smoke in a designated spot on the property.The dispute began in January 2009 when Armstrong County Memorial Hospital adopted a policy that banned smoking anywhere on hospital property.

Dunn v. Yager,(Miss.)
Arguments and Opening Statements - Patient had constitutional right to participate in closing argument in malpractice action.
Addressing a matter of first impression, the Supreme Court of Mississippi held that a patient had the right under the access-to-courts provision of the Mississippi Constitution to participate in her closing argument in her medical malpractice action against a physician, provided that the patient complied with the same rules applicable to her lawyer. The trial court properly excluded the patient from participating in rebuttal argument, however, as the patient never timely sought to participate as her own counsel despite years of opportunity, and she notified trial court of her desire to act as her own counsel, jointly with retained counsel, only when retained counsel neared the end of rebuttal argument.

Medical Devices (Discovery): PAIN PATCH MAKER MUST REVEAL DATA IN CALIFORNIA DEATH SUIT, Standing v. Watson Pharms., 8 No. 5 Westlaw Journal Expert and Scientific Evidence 10, Westlaw Journal Expert and Scientific Evidence April 20, 2011
A California judge has ordered Watson Pharmaceuticals to turn over key documents and other data about a pain patch that allegedly caused a user to overdose on fentanyl. Judge Richard E. Rico of the Los Angeles County Superior Court also ordered certain Watson executives to testify under oath about the company's pain patches. The judge adopted recommendations from a special discovery master despite the company's objections to the findings.

Medicaid Services: U.S. CONCERNED ABOUT LOUISIANA PLAN TO CUT HOME MEDICAID SERVICES, Pitts v. Greenstein, 13 No. 21 Westlaw Journal Nursing Home 1, Westlaw Journal Nursing Home April 22, 2011
A federal judge in Louisiana will let the Obama administration file a letter of interest and argue on behalf of a group of low-income residents challenging the state's bid to cut home-care Medicaid services for nearly 11,000 poor people. The lawsuit, filed in the U.S. District Court for the Middle District of Louisiana, seeks to stop the state's Department of Health and Hospitals from slashing its long-term personal care services program in the face of a $1.6 billion budget deficit..

Abuse & Neglect: SUIT CLAIMS RESIDENT'S CANCER WENT UNNOTICED AT 2 ILLINOIS FACILITIES, Parks v. Mid Am. Care Ctr., 13 No. 21 Westlaw Journal Nursing Home 2, Westlaw Journal Nursing Home April 22, 2011
Two Illinois nursing homes violated a resident's rights by ignoring her complaints of pain and failing to recognize that she was suffering from cancer, a state court lawsuit alleges. The estate of Deborah Parks claims that Mid America Care Center LLC and Glenwood Healthcare & Rehab Inc. both neglected to properly assess her condition and treat the cancerous tumor in her rectum.  

Arbitration Agreement: KENTUCKY APPEALS COURT FINDS ARBITRATION AGREEMENT INVALID, Kindred Nursing Ctrs. v. Brown, 13 No. 21 Westlaw Journal Nursing Home 3, Westlaw Journal Nursing Home April 22, 2011
The mother of a mentally incapacitated nursing home resident is not bound by the terms of an arbitration agreement that she signed on her son's behalf before she became his legal guardian, the Kentucky Court of Appeals has ruled. The three-judge panel unanimously upheld a trial court's decision to deny Kindred Nursing Centers' motion to dismiss Teresa Brown's negligence claims or compel arbitration.The contract is unenforceable absent evidence that Brown had legal authority to act on behalf.

Conservatorship: ELDERLY MAN'S FAMILY LOSES MONTANA HIGH COURT BATTLE WITH CONSERVATOR, In re Conservatorship of J.R., 13 No. 21 Westlaw Journal Nursing Home 4, Westlaw Journal Nursing Home April 22, 2011
A dementia patient and his family have failed to convince the Montana Supreme Court that a trial judge improperly dismissed negligence and breach-of- fiduciary-duty allegations against his conservator. The high court said the trial judge correctly ruled that conservator Joseph Shevlin did not breach his duty to protect the assets of the elderly man, identified in the court's opinion as "J.R."

Employment: FORMER NURSING HOME WORKER CLAIMS RACE, GENDER HARASSMENT, Le v. Manor Care of Fountain Valley, 13 No. 21 Westlaw Journal Nursing Home 5, Westlaw Journal Nursing Home April 22, 2011
A former kitchen worker at a California nursing facility alleges in a state court lawsuit that she was sexually harassed, intimidated and subjected to racial discrimination by her supervisor and co-workers. Jeanne Le claims that Manor Care of Fountain Valley and its owners and operators failed to investigate her complaints of harassment and "encouraged" a hostile and offensive work environment for her and other female workers.  

Health Care Reform: 11TH CIRCUIT SETS JUNE HEARING IN CASE ON HEALTH CARE REFORM LAW, Florida v. U.S. Dep't of Health & Human Servs., 13 No. 21 Westlaw Journal Nursing Home 6, Westlaw Journal Nursing Home April 22, 2011
A federal appeals court in Atlanta will hear oral argument June 8 on the constitutionality of the nation's sweeping health care reform law. In an order filed April 1, the 11th U.S. Circuit Court of Appeals said each side will get one hour to present its arguments. The order comes just weeks after the appellate court granted the Obama administration's request to expedite the case.The government hopes to overturn U.S. District Judge Roger Vinson's Jan. 31 decision.

Medical Device: ALABAMA WOMAN DIED FROM USING BACTERIA-TAINTED IV PRODUCT, SUIT SAYS, Young v. Meds I.V., 13 No. 21 Westlaw Journal Nursing Home 7, Westlaw Journal Nursing Home April 22, 2011
The maker of an IV-delivered nutritional product is being sued by the daughter of an Alabama woman who died of an infection she allegedly contracted from either the solution or the bags in which it was supplied. Mary Ellen Kise died at a Baptist Health Systems hospital in Prattville, Ala., after receiving a contaminated IV made by Meds I.V. LLC, according to the complaint filed in Autauga County Circuit Court.  

Patient Care Privileges: JUDGE REFUSES TO REINSTATE DOCTOR'S PRIVILEGES AT ARKANSAS HOME, Roudachevski v. All-Am. Care Ctrs., 13 No. 21 Westlaw Journal Nursing Home 8, Westlaw Journal Nursing Home April 22, 2011
The former medical director of an Arkansas nursing home has lost his federal court bid for a preliminary injunction to restore his patient care privileges at the facility. Dr. Evgueni Roudachevski failed to show that he and his patients have suffered irreparable harm from the termination of his ability to provide treatment at All-American Care Centers' Little Rock facility, U.S. District Judge Susan Webber Wright of the Eastern District of Arkansas said.  

Study: STUDY: THREAT OF LAWSUITS MAY NOT LEAD TO IMPROVED PATIENT CARE, 13 No. 21 Westlaw Journal Nursing Home 9, Westlaw Journal Nursing Home April 22, 2011
The threat of litigation provides little incentive for nursing homes to deliver quality care because both high- and low-performing facilities are sued at similar rates, according to a recent study in the New England Journal of Medicine. Nursing homes in the top 10th percentile for lowest deficiency records had a 40 percent annual risk of being sued, while facilities in the 90th percentile had a 47 percent chance, the study said.  

News in Brief: NEWS IN BRIEF, 13 No. 21 Westlaw Journal Nursing Home 10, Westlaw Journal Nursing Home April 22, 2011
'Nanny cam' leads to nursing home workers' arrests Authorities in Pennsylvania have charged three nursing home workers with assault after hidden-camera footage allegedly showed them striking and taunting an elderly resident, ABC News reported April 7. Lois McCallister's family installed a hidden camera in her room at the Quadrangle in Haverford after she described being punched and slapped by staff, the report said.

Criminal law -- Habeas corpus -- Second or successive petition -- Rule 60(b) motion for relief from judgment, filed after habeas petition was denied, alleging that court-appointed lawyer failed to challenge the lawfulness of admitting at petitioner's trial the confession of a codefendant despite having repeatedly promised to do so, actually raised a new habeas claim without first securing circuit court's permission to file a second or successive habeas petition -- District court lacked subject-matter jurisdiction to consider claim and, accordingly, erred by treating motion as one properly filed pursuant to rule 60(b) and in considering motion on its merits
Reported at 22 Fla. L. Weekly Fed. C1995a

Criminal law -- Murder -- Death penalty -- Habeas corpus -- State court's rejection of claim that due process violation resulted from prosecutor's erroneous statements of law to prospective jurors regarding legal standard for weighing aggravating and mitigating circumstances, after finding that misstatements were harmless given later proper jury instructions, was not contrary to or an unreasonable application of clearly established federal law -- District court properly rejected federal due process claims based on certain remarks by prosecutor in closing argument where those claims had not been raised in state court -- Ineffective assistance of counsel -- State court did not act contrary to or unreasonably apply clearly established federal law in denying relief on claims that counsel was ineffective during guilt and penalty phases for failing to object to prosecutor's misstatements of law, failing to conduct meaningful voir dire, presenting defense during opening statement that had no legal basis, failing to object to prejudicial testimony from state's medical examiner, questioning defense witness in manner that elicited prejudicial testimony, or failing to adequately investigate and present mitigating evidence at penalty phase of trial
Reported at 22 Fla. L. Weekly Fed. C1998a

Criminal law -- Sentencing -- Resentencing -- District court may consider post-sentence rehabilitative conduct at resentencing
Reported at 22 Fla. L. Weekly Fed. C2002b

Criminal law -- Sexual battery on child -- Lewd and lascivious battery -- Jurors -- Challenges -- Peremptory -- Gender discrimination -- Defense counsel's objection to state's peremptory strike of male juror on ground that state was discriminatorily removing men from panel was sufficient for trial court to require state to provide gender-neutral reason for strike -- New trial required -- Evidence -- Uncharged collateral crimes involving both prior and subsequent incidents between defendant and victim were not inextricably intertwined with charged offenses -- Evidence was not properly admitted as similar fact evidence where state failed to provide notice which was sufficiently particular to comply with statutory notice requirements -- Error in admitting evidence was not harmless where evidence was extremely prejudicial, minimally relevant, and became feature of trial
Reported at 36 Fla. L. Weekly D874a

Criminal law -- Habeas corpus -- Petition for writ of habeas corpus, in which a prisoner is seeking immediate release, may not be dismissed based upon the petitioner's failure to allege exhaustion of administrative remedies where such failure has not been raised by the parties
Reported at 36 Fla. L. Weekly S191a

Criminal law -- Search and seizure -- Incident to arrest -- Cell phone -- Although there was nothing which would have led arresting officer reasonably to believe that cell phone on defendant's person at the time of his arrest contained evidence related to the crime for which defendant was being arrested, the search of the cell phone was not illegal -- Trial court properly denied defendant's motion to suppress photographs discovered on the cell phone -- Question certified: Does the holding in United States v. Robinson, 414 U.S. 218 (1973), allow a police officer to search through photographs contained within a cell phone which is on the arrestee's person at the time of a valid arrest, notwithstanding that there is no reasonable belief that the cell phone contains evidence of any crime?
Reported at 36 Fla. L. Weekly D911b

Criminal law -- Search and seizure -- Warrant -- Trial court erred by determining that magistrate did not have probable cause to issue warrant authorizing ion scan of interior of vehicle driven by defendant to determine whether additional testing for presence of drugs would link defendant to charges of unauthorized acting as money transmitter and money laundering -- Affidavit in support of warrant contained information that defendant behaved erratically during traffic stop, that narcotics dog alerted during an air sniff and a controlled box test, and that over $80,000 in currency was discovered in a plastic bag hidden in rear of vehicle -- Moreover, after finding that officer's affidavit was insufficient due to material omissions, trial court should have addressed defendant's claims that omitted material, if added, would have defeated probable cause and that the omissions resulted from intentional or reckless police conduct that amounted to deception; and neither of these circumstances was present in this case
Reported at 36 Fla. L. Weekly D902a

Criminal law -- Trafficking in cannabis -- Search and seizure -- Residence -- Marijuana grow house which was surrounded by six-foot chain-link fence, which had as its sole entrance a driveway that had a closed, but unlocked, gate that could be readily opened and which was not posted with “no trespassing” signs -- Officers, who had received anonymous tip that marijuana was being cultivated at house, did not violate Fourth Amendment by entering property through an unlocked gate for purposes of knock and talk, which is a form of citizen encounter -- Defendant failed to establish that he had a reasonable expectation of privacy that included an expectation that citizens would not enter the property through the unlocked gate to knock on his front door -- Because evidence gathered to support search warrant arose from that brief intrusion into curtilage, trial court properly denied motion to suppress -- Omission of facts about fence and gate from affidavit in support of warrant did not invalidate the warrant or require suppression of evidence seized during search conducted pursuant to the warrant -- Standing -- Trial court erred in finding that defendant lacked standing to challenge search because he had not changed address on his driver's license to address of the grow house where it was undisputed that defendant was both working and living full time at the location
Reported at 36 Fla. L. Weekly D903a

Criminal law -- Habeas corpus -- Silence of defendant -- Defendant was not entitled to habeas relief based on prosecutor's reference to defendant's failure to disclose his version of facts prior to his testimony at trial, where Florida supreme court summarily rejected that claim, and fairminded jurists could disagree with claim that prosecutor's questions and argument violated defendant's constitutional rights as established in Supreme Court's decision in Doyle v. Ohio, which applies when a prosecutor comments on pretrial silence of defendant after he has been advised of his Miranda rights by law enforcement officer or other state agent -- Doyle does not apply, and defendant's constitutional rights are not violated, where defendant failed to prove that any of his silence before taking stand at trial came after he was given Miranda warnings -- Record is silent about whether any officer or agent ever read defendant his Miranda rights, and silent record is fatal to Doyle claim -- State court adjudication of Doyle claim was not contrary to, or did not involve unreasonable application of, clearly established federal law as determined by Supreme Court
Reported at 22 Fla. L. Weekly Fed. C2015a

Criminal law -- Sentencing -- Armed Career Criminal Act -- Prior convictions -- District court did not err in applying Section 924(e) enhancement of Armed Career Criminal Act to defendant's sentence, where defendant's convictions of two burglary offenses that were committed on same day at separate addresses on same street and conviction of escape committed on same day constituted three separate offenses, and the escape from custody under Florida statute constituted a violent felony under ACCA
Reported at 22 Fla. L. Weekly Fed. C2016a

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Sunday, May 1, 2011

The End of Consumer Class Actions? Supreme Court Upholds AT&T Arbitration Contract

Posted in ABA Journal Law News Now  Apr 27, 2011 9:29 AM CDT  By Debra Cassens Weiss

The U.S. Supreme Court has sided with AT&T in its bid to enforce contract provisions banning class actions and requiring individual arbitration in consumer disputes.

The Federal Arbitration Act pre-empts a California common-law rule that allowed some consumers to avoid contracts in which they waived their class action rights, the court ruled in an opinion (PDF) by Justice Antonin Scalia.

"The dissent claims that class proceedings are necessary to prosecute small-dollar claims that might otherwise slip through the legal system,” Scalia wrote in his opinion. “But states cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons.”

Tom Goldstein of SCOTUSblog calls the 5-4 decision in AT&T Mobility v. Concepcion “super-significant.” In a preview of the case, Vanderbilt law professor Brian Fitzpatrick had warned that a ruling for AT&T could “end class-action litigation in America as we know it.”

The court ruled against cell phone customers Vincent and Liza Concepcion, who sued AT&T for advertising discounted cell phones but charging sales tax—$30.22—on the full retail price. They had asked the court to uphold California court rulings finding AT&T's contractual class-action waivers were unconscionable as applied to consumers. More.

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