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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