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LawyersUSAlawyersusaonline.comIssue 2011 - 6/2011 LUSA 149YOUR BUSINESS PARTNERJune 2011 $26.00 per copyLawyers confused byCourt ruling on stateillegal worker statuteBy Kimberly AtkinsStaff writerThe recent U.S. Supreme Court ruling upholdingan Arizona law imposing sanctionson employers who hire undocumentedworkers and mandating the use of the federalE-Verify database has drawn criticismfrom immigration lawyers as well as from attorneysfor business and civil rights groups,who say it creates a confusing landscape foremployers.“What this opinion does is open the door toa hodgepodge patchwork of 50 different employmentimmigration laws around the country,which is very dangerous,” said David Leopold,president of the American Immigration LawyersAssociation and principal of David Wolfe Leopold& Associates in Cleveland.But Leopold and others were just asquick to label the ruling in Chamber of Commercev. Whiting a narrow one, brushingaside suggestions that the decision couldbe a precursor to the Court reaching a similarconclusion about Arizona’s other controversialimmigration law, SB 1070, whichauthorizes police to verify a suspect’s immigrationstatus.“We are talking about a very limited applicationof the federal immigration law,”Leopold said.“[Whiting] does not grant states the rightto enforce immigration law,” agreed LintonJoaquin, general counsel for the Washington,WHITING: Employers say ruling is unfair.Continued on page 28Arizona Gov. Jan Brewer stands outside the U.S. Supreme Court the day of oralarguments in a case over the state’s law mandating the use of the E-Verify database.AP Photo/Susan Walsh$322M in asbestos caseNLRB takes aimBy Sylvia HsiehStaff writerAs a teenager growing up in Mississippiwho barely learned to reador write, Thomas Brown Jr. went towork on oil drilling rigs as a “roughneck”– doing all the hard manuallabor to support the drilling team.The work included pouring 50-pound bags of additives into mudused in the drilling process.Thirty years later, Brown learnedthat those bags contained asbestos.Today, at age 48, he wears an oxygenmask to help him breathe 18 to24 hours a day.In May, a jury awarded Brown$322 million against two companiesthat manufactured and distributedthe product, Union CarbideCorp. and Chevron PhillipsChemical Co., for failing to warn ofthe dangers of asbestos particlesthat Brown claimed he inhaled onthe job.The verdict was the largest singleplaintiff’s asbestos verdict inPlaintiff Thomas Brown Jr. pictured with his niece.U.S. history.The defendants claimed that becausethe plaintiff couldn’t read,he couldn’t prove that any failureby the companies to put an adequatewarning label on the productcaused his injuries.But this did not convince therural Mississippi jury.“Reading doesn’t mean the literalmeaning of ‘reading.’ Theycould have used logos, emblems,pictograms. We went to the jurywith that,” said winning attorneyAllen Hossley of Hossley Embry inDallas.Hossley believes the jury awardedsuch large damages because thecompany knew the product wasASBESTOS: Jury deliberatesonly two hours.Continued on page 25at social mediaAttorneys advise on policies, enforcementBy Correy E. StephensonStaff writerEmployers – including law firms– need to take a closer look at theirsocial media policies and how theyenforce those policies in light of recentactions taken by the NationalLabor Relations Board.Over the last few months, theNLRB has responded in several instancesafter employees were terminatedbecause of their activities onsocial media sites such as Twitterand Facebook. (To read more aboutthe Board’s responses, see “RecentNLRB activity” on page 28.)While employees have alwaysdiscussed their employers and jobsat the local bar or watering hole, “it’snow easier for employers to find outwhat employees are saying aboutthem,” said Boris Segalis, a partnerat the InfoLawGroup LLP in NewYork City.And when employees complainvia Twitter about their supervisor,or criticize the choice of food at awork-sponsored event on Facebook,they may be engaging in activityprotected by federal law, accordingto the NLRB.These actions are a result of “aconvergence of several factors,with the increasing adoption of socialmedia, the fact that employersare still getting a grip on employeeusage of it and the NLRB decidingto take a more aggressive stance,”said Daniel Schwartz, a partner atNLRB: Social media policies mustbe enforced.Continued on page 28INSIDEPracticeManagementOrganizing and usingyour contact listYou likely have many contacts:clients, fellow attorneys, businessadvisors, friends and family. Hereare some tips on how to organizeyour contact list such that you canbenefit from it as much as possible...........................................Page 6Trial StrategyWhen jurors zone outMany lawyers are changing theway they communicate in thecourtroom to reach jurors who haveattention-deficit disorder. ...Page 9See index on page 4LitigationUsing the Internet forinvestigative researchHow can litigators find the mostuseful and cost effective websites forresearch? The authors of Volume Twoof “Find Info Like a Pro” offer someguidance. .........................Page 10Verdicts &SettlementsHome video helps winrecord verdictAn unusual piece of evidence helpedthe parents of a boy born with braindamage win a $58.6 million juryverdict against the obstetrician whodelivered the baby. ...........Page 16

Page 2 / LAWYERS USA June 2011 / 2011 LUSA 150Missouri Governor Jay Nixon hassigned into law a bill which attempts torein in suits against operations such ashog farms.The bill, sparked by a series of jury verdictsagainst large hog farm operations,restricts the potential damages in an actionfor private nuisance involving farming,agriculture or animal production.Last year, several families in northernMissouri won $11 million at trial. A similarcase in 2006 ended in a $4.5 millionverdict, and a jury recently returned nearly$2 million in damages against a hogfarm operation. Each suit claimed thatthe odor and flies from those operationshad ruined neighbors’ quality of life.Charles Speer, of the Speer Law Firmin Kansas City, Mo., led each of thosesuits and has conducted hundreds of similar nuisance actionsthroughout the state. Speer did not return a call or e-mail seekingcomment.The Missouri Association of Trial Attorneys, which testifiedagainst the bill, declined to comment, executive director SaraSchuett said.The bill won the backing of the state’s corn growers’, cattlemen’s,pork, agribusiness, soybean growers’ and county commissioners’associations.In an -emailed statement, Holly Boxley, a spokeswoman forPremium Standard Farms, a corporate hog farm in northernTort reform bill closer tobecoming law in TennesseeA tort reform bill that would restrict personalinjury lawsuits, including capping noneconomicdamages at $750,000, has passedthe Tennessee house of representatives.The state senate passed a version of thebill in April. The measure was proposed byGov. Bill Haslam.House Bill 2008, named the TennesseeCivil Justice Act of 2011, caps pain and suffering,loss of enjoyment and other non-economicdamages at $750,000 in most cases.The cap would be raised to $1 million in certainnarrowly defined catastrophic cases.The bill also requires a plaintiff to proveby a “clear and convincing” evidence standardthat the defendant acted maliciously,recklessly, intentionally or fraudulently in orderto receive a punitive damages award. Itcaps punitives at $500,000 or double the compensatorydamages, whichever is greater.Republicans, who voted unanimously forthe bill, argued it would help attract businessto the state, while Democrats, whovoted against it with the exception of eightrepresentatives, argued the caps wouldhurt injured victims and violate the right toa jury trial.A number of Democratic amendmentsaimed at raising the caps or amelioratingthem were tabled.– Sylvia HsiehBPA ban advancesin Calif. legislatureThe California State Assembly has passeda bill that seeks to effectively ban the toxicchemical bisphenol-A (BPA) from baby bottles,sippy cups and other products intendedfor young children.The Toxin-Free Infants and Toddlers Actwould prohibit the manufacture, sale or distributionof certain children’s products thatcontain BPA at a level above 0.1 parts perbillion.The bill, if passed by the state senate andsigned by the governor, would go into effectJuly 1, 2013, and apply to any bottle, cup,USA BRIEFSNew Mo. law willrestrict hog farm suitsformula, liquid, beverage or food intendedto be used by children age 3 and under.Assembly member Betsy Butler, a co-authorof the bill, said that she is “verypleased” that the measure can proceed tothe state senate for consideration.“The science on BPA shows cause foralarm and it’s a shame that we have failedto protect our most vulnerable citizensfrom this toxic chemical,” Butler told TheCalifornia Newswire.Plaintiffs in a number of lawsuits acrossthe country have cited medical studies suggestinga link between exposure to BPA anda wide range of health problems, includingcancer, diabetes, hyperactivity, miscarriageand heart disease.In 2010, the Environmental ProtectionAgency added BPA to its list of “chemicalsof concern.”Legislators and advocates in 30 stateshave introduced bills aimed at banning anumber of chemicals commonly found inconsumer products, including BPA.– Pat MurphyMich. court issuesnew solicitation ruleLawyers in Michigan will have to markany letter sent to solicit representation ofa prospective client as advertising materialunder a new ethics rule enacted by theMichigan Supreme Court.The rule also forbids the sending of suchletters until “30 days after the injury, deathor accident occurred that has given rise tothe action of potential claim.”Some critics, including state supremecourt Justice Stephen J. Markman, say thenew rule, MRPC 7.3, will benefit large firmsat the expense of smaller firms that relyupon direct contact solicitation.“The upshot is that those lawyers, andlaw firms, which engage in client solicitationby the hundreds of thousands will continueto engage in business as usual, whilethose lawyers, and law firms, which engagein client solicitation one person at a timewill become more heavily regulated,” Markmanwrote in a dissent to the amendmentAP Photo/Charlie NeibergallMissouri that has been the subject of much litigation, said thebill strikes the right balance.“This is a much-needed law that protects our state’s agriculturalproducers from being forced out of business by multiplenuisance lawsuits, and at the same time preserves theright of individuals to seek legal redress from farming operations,”she said.The new law will go into effect Aug. 28.– Scott LauckA version of this article originally appeared in Missouri LawyersWeekly, a sister publication of Lawyers USA.order. “Further, the latter group will be prohibitedduring a 30-day period from solicitingbusiness from certain categories of potentialclients, while the former group willbe allowed to continue soliciting such businessduring the same period.”Justices Marilyn Kelly and Diane M. Hathawayalso dissented. Kelly said she supportedusing the American Bar Associationmodel rule, which simply requires thatsuch communication, whether written,recorded or electronic, contain the words“advertising material,” and doesn’t includea 30-day rule.Hathaway simply wrote that she “woulddecline to adopt.”The rule will go into effect on Sept. 1,2011.– Brian FrasierA version of this article originally appearedin Michigan Lawyers Weekly, a sisterpublication of Lawyers USA.Report: Chantix risksunderestimatedA product liability watchdog claimsthat the risks of Pfizer’s quit-smokingdrug Chantix have been underestimatedin the latest reporting by the Food andDrug Administration.“[U]ntil July 2010 FDA safety analystswere not aware of more than half of the reportedsuicide cases in which [Chantix]was the primary suspect drug, and did nothave available hundreds of other reportedcases of serious psychiatric side effects,”the Institute for Safe Medication Practicessaid in a recent report.The report analyzes adverse events reportedto the FDA in the third quarter of2010 for Chantix, as well as other drugs thatare subject to product liability claims.Chantix has been prescribed to hundredsof thousands of smokers since Pfizerintroduced it in August 2006. Morethan 100 lawsuits alleging that Chantixcaused suicides or attempted suicideshave been consolidated in federal courtin Alabama.The institute alleges in its report thatWhat’s on yourdesk?HeathEskalyoEskalyo is ashareholder atKelley Kronenbergin FortLauderdale,Fla. He specializesin workers’ compensationdefense and OSHA cases.• My office is themed around thesport of triathalons, and I often docharitable fundraising through thesport with clients and my firm.• I have a photoof myself withmy family afterI crossedthe finish lineof the FloridaIron Man competition, which wasmy ultimate goal race. It shows ayear of commitment to trainingwith the support of my family.• I have three glasscylinders that havethe initials S.B.R.,which stands forSwim, Bike, Run.People tend to figureit out once theylook around theoffice.• My businesscardholder ismade outof a bicyclechain.• A mouse pad with the Iron ManCorp. logo.• Incorporated into the paint of mywall, I have two quotes. One says,“Anything is possible,” and theother is “I believe in me.” That’ssomething we have always tried toinstill in our kids, that they can doanything they set their minds to.• On one wall is a huge picture of aprofessional triathelete coming outof the ocean. I also have a waterbottle hanging up with bike spokescoming out of it instead of flowers.Pfizer failed to send through the usual FDAchannels reports of hundreds of seriouspsychiatric adverse events related to Chantix,most notably 150 cases of completedsuicides, some dating back to 2007.“New data from the third quarter showthat the risks of serious psychiatric side effectswere previously underestimated becauseso many of these events were notpromptly reported, and were thereforeomitted from the FDA’s safety analysis,” theinstitute said in its report. “We believe thisContinued on page 27

2011 LUSA 151 / June 2011 Lawyers USA / Page 3IN THE NEWSRuling makes fuzzy ERISA law more puzzlingBy Kimberly AtkinsStaff writerWASHINGTON – Lawyers who litigateemployment benefits cases were waitingfor the U.S. Supreme Court to answer oneimportant question: whether beneficiariesclaiming they were misled by a summaryplan description must prove detrimental reliancein an action under the Employee RetirementIncome Security Act.But in a move that seemed to surprise attorneysrepresenting both beneficiaries andplan administrators, the Court insteadmade a number of holdings regarding boththe administration and litigation of employmentbenefits, causing both sides toclaim a partial victory, and just about everyoneto express at least a bit of confusion.“This is one of those bad-facts-make-badlawcases, because the underlying case isso complicated that [the Court] wasn’t ableto decide a simple issue” like detrimentalreliance, said Stephen Rosenberg, a partnerat the McCormack Firm in Boston, where heheads the firm’s ERISA practice group.In CIGNA Corp. v. Amara, the Court unanimouslyheld that courts cannot, as the districtcourt did in this case, reform a benefitsplan under §502(a)(1)(B) of ERISA to complywith the more beneficial terms of a summaryplan description (SPD). (Justice SoniaSotomayor took no part in the decision.)The Court also held that the summaryplan description, which here led employeesto believe that they would get greaterbenefits that they received, was not part ofthe plan and could not itself be enforced bythe court under that section of the Act.But in a surprise move, the Court alsoheld by a 6-2 vote that plan beneficiariescould seek monetary relief under §502(a)(3),which provides for equitable relief for ERISAviolations. A showing of detrimental relianceis not necessary to prevail on such aclaim, just simple causation, the Court’s majorityheld.Almost immediately plaintiffs’ employmentlawyers claimed victory, arguing thatthe expansion of the equitable relief sectionof the law gave beneficiaries a new avenueof relief for ERISA violations.“It’s a big win,” said San Francisco plaintiffs’attorney Joseph A. Creitz, whose practiceincludes ERISA litigation. “The Courtexplicitly said that the equitable remedy isavailable [for beneficiaries] to recover outof-pocketcosts. That is a big change.”But lawyers defending benefit plans werenot sure the victory was so one-sided. TheCourt’s ruling went against the plaintiffs inAmara, they pointed out. And the standardsunder the ERISA section governing equitablerelief are so spongy, they said, that the plaintiffsin Amara and other cases probably haveyears of litigation ahead of them, and the issueof the proper equitable standards couldwind up back before the Supreme Court.“[The justices] didn’t really deal with that.They just sent it back down,” said Rosenberg,who represents plan administrators inERISA litigation. “Is the district court just goingto reform the plan under the equitableclause? Is the 2nd Circuit going to upholdthat? There is a big question as to whetherthis is good for the beneficiaries or not becauseof the [litigation] that lies ahead.”Also, the holding that summary descriptionsare not a part of benefits plansis a win for employers and plan administrators,their lawyers say.“It does confirm what we always [believed],which is that the SPD is differentfrom the plan instrument,” Rosenberg said.‘Surcharge,’ other equitable remediesBefore the decision in Amara, courts generallyheld that monetary relief was notavailable under the equitable remedies provisionof ERISA.But the Court’s majority – reaching backto cite equitable principles applied to trustscases, some more than a century old –found otherwise. In equity, the Court held,courts could offer several types of relief: injunctiverelief, reformation of the plan,estoppel and an award called a “surcharge.”“Equity courts possessed the power toprovide relief in the form of monetary ‘compensation’for a loss resulting from a trustee’sbreach of duty, or to prevent the trustee’s unjustenrichment,” Justice Stephen Breyerwrote. “Indeed, prior to the merger of law andequity this kind of monetary remedy againsta trustee, sometimes called a ‘surcharge,’was ‘exclusively equitable.’”That ruling represents a turnaround inSupreme Court ERISA precedent, whichPaul W. Mollica, of counsel to Outten &Golden in Chicago, said has been increasinglyadverse to beneficiaries seeking relief.There had been a series of “decisionsfrom the Supreme Court that [gave] fewerand fewer remedies for ERISA violationsthat could result in any kind of relief,” saidMollica, who represents plaintiffs in class,collective and public interest litigation.“What the decision does is refashion the [liabilityto allow] relief against fiduciaries forsuch statements, and that relief can take theform of monetary relief. That is a significantchange in the way the Court has ruled.”And while the holding that summaryplan descriptions are not part of the planis “a technical win” for employers andplan administrators, it’s a limited one,Mollica said.Overall, the result of Amara, he said, willbe “more wins for participants.”“I think it will lead lawyers who [litigate]ERISA to give more optimistic predictionsto their clients,” Mollica said. “The fact ofthe matter is, [with] a lot of people whocome into the office with ERISA claims, youare disappointing them. And now I feelmore confident. Now we have claims thatwe can make that we didn’t have last week.”One thing is certain, Rosenberg said.Lawyers on both sides will try to use Amara,and all other ERISA precedent, the bestway that they can.“ERISA can be manipulated,” Rosenbergsaid. “In most cases ERISA litigators can manipulateit in a bunch of different directions.As a plaintiffs’ lawyer you know how to [usea case] to support your claim for relief, andas a defense lawyer you know how to saythat those issues have not been resolvedby the courts.”Questions or comments can be directed to thewriter at: kimberly.atkins@lawyersusaonline.com

Page 4 / Lawyers USA June 2011 / 2011 LUSA 152LawyersUSASusan A. Bocamazo, Esq.– Publisher & Editor –susan.bocamazo@lawyersusaonline.comHenriette Campagne– Vice President of Editorial –henriette.campagne@lawyersweekly.comReni Gertner– News Editor –reni.gertner@lawyersusaonline.comCorrey E. Stephenson, Esq.– Associate Editor, New York Office –correy.stephenson@lawyersusaonline.comKimberly Atkins, Esq.– Staff Writer, D.C. Office –kimberly.atkins@lawyersusaonline.comSylvia Hsieh, Esq.– Staff Writer, California Office –sylvia.hsieh@lawyersusaonline.comTony Ogden– Website/Editorial Assistant –anthony.ogden@lawyersusaonline.comPatrick M. Murphy, Esq.– Legal Editor –patrick.murphy@lawyersusaonline.comJohn L. Mecklenburg– Art Director –john.mecklenburg@lawyersweekly.comJoAnn Griffin– Circulation Marketing Manager –joann.griffin@lawyersweekly.comCharlene J. Smith– Vice President of Sales –charlene.smith@lawyerweekly.comLiz ThomsonAdvertising Account Executiveliz.thomson@lawyersweekly.comThomas F. Harrison– Vice President, New Business Development –Malee S. Nuesse– Vice President, Circulation –Scott Murdoch– Circulation Manager –______________________________You can contact Lawyers USA via theInternet at: comments@lawyersusaonline.comOr call Lawyers USA at 800-444-5297______________________________The Dolan Company______________________________James P. Dolan– Chairman, President/CEO –Scott J. Pollei– Executive Vice President/CFO –Mark W.C. Stodder– Executive Vice President/Newspapers –Christopher A. Eddings– Director of Publishing Operations –Glenda Russell– Group Publisher –glenda.russell@thedolancompany.com______________________________LAWYERS USA (ISSN-1931-9584.) is publishedmonthly by Lawyers Weekly Inc., 10 Milk St., 10thFloor, Boston, MA 02108. Price is $26 per copy plusshipping and handling, $220 per year, $129 for 6months. POSTMASTER: Send address changes toLAWYERS USA, 10 Milk St., 10th Floor, BOSTON, MA02108. Periodicals postage paid at Boston, MA andadditional mailing offices. Copyright 2011 LawyersWeekly Inc. Material published in Lawyers USA iscompiled at substantial expense and is for the soleand exclusive use of purchasers and subscribers.The material may not be republished, resold,recorded, or used in any manner, in whole or inpart, without the publisher’s explicit consent.Any infringement will be subject to legal redress.SIDEBARSeven simple steps can helpyou in picking better juriesTRIAL STRATEGYBy RichardGabrielIn 1936, Clarence Darrow wrote an articlefor Esquire entitled “How to Pick aJury.”In the article, he said, “Choosing jurorsis always a delicate task. The morea lawyer knows of life, human nature,psychology and the reactions of the humanemotions, the better he is equippedfor the subtle selection of his so-called‘twelve men, good and true.’”Darrow went on to emphasize the importanceof evaluating a wide range offactors in selecting a juror, from “thebooks and newspapers he likes andreads” to “the juror’s method of speech.”While this detailed analysis may begreat when you have a judge who allowsquestionnaires and unlimited time toconduct voir dire, it’s a lot tougher whenyou have a judge who gives you 15 minutesto question jurors. While much hasbeen written and discussed about it, thetruth is, we make jury selection muchmore complicated than it needs to be.Below are a few basic steps to simplifythe process.Let’s start with the primary goal ofjury selection: to understand individualjurors’ life experiences and beliefs andhow those will affect the jury’s interpretationof your case. To accomplish thisgoal, attorneys need to be truly curiousand stay focused exclusively on the jury– not their case, their themes or theirclient.Step #1: Identify juror biases that mayhurt your case by stepping into your opposingcounsel’s shoes.INSIDE THIS ISSUEUSA BriefsNew Mo. law will restrict hogfarm suits...........................................2In The NewsRuling makes fuzzy ERISA lawmore puzzling.....................................3Trial StrategySeven simple steps can helpyou in picking better juries..................4lawyersusaonline.comMore news from our website..............5Practice ManagementUsing checklists in your law practice....5Business MattersSweat the small stuff: Small talk,that is.................................................6Organizing and using yourcontact list .........................................6This step is basically an exercise inmasochism. Since attorneys have spentmonths, if not years, developing argumentsfor their own client, it seems counterintuitiveto develop arguments for theopposing side.However, this is critical to help identifyjurors who will gravitate to your adversary’scase. These are the jurors youneed to target for cause or peremptorychallenges.For example, if you are defending awrongful termination case, you wouldnaturally be concerned about a jurorwho has been fired, had a strong negativeemployment experience or thinksperformance reviews are mainly used todemote or lay off employees.Step #2: Ask open-ended questions toget jurors talking about these potentialbiases.As an attorney is trained to control awitness’ answers through questions elicitinga yes/no response, it is counterintuitiveto ask broad, general and evenambiguous questions of jurors.But these are actually the best questionsbecause they invite the juror to relayhow he or she feels about the subject.In an employment lawsuit example,you might ask, “In general, how do youthink employers treat their employees?”Regardless of how a potential juror responds,don’t be satisfied with it. Ask thejuror to tell you more about how he orLegal writing in 140 charactersor less ................................................7How to interview a legal assistantcandidate ...........................................7Is it ethical towithhold a filefrom a clientwho refusesto pay?.......8When jurorszone out:Trying a caseto jurors withattention-deficitdisorder..............................................9Using the Internet for research..........10Verdicts & Settlements$40 million for Floridatobacco widower..............................11she feels or ask what he or she means bya given response.Since you mainly want to hear frompeople who have negative things to sayabout your case, you may ask a closedendedquestion first and then ask theopen-ended follow-up question. This sequencesounds like, “Who here thinksthat employers will try to unfairly takeadvantage of their employees? Juror #4,how do you feel about that?”In voir dire, it is important to shut upand let the jurors talk. In jury selection,the 80/20 Rule applies: 80 percent of thetime jurors should be speaking and 20percent of the time the lawyer should bespeaking.It critical to listen to and acknowledgewhat jurors say. This is no easy task giventhe looming pressures of openingstatements and the beginning of presentingevidence. But the strongest rapportan attorney can build with a juror iswhen that juror feels like he or she hasbeen truly listened to.Step #3: Ask hard questions.In cases with tough issues, we need toask jurors tough questions.For example, “I am going to ask you tocompensate this mother for the emotionaldistress she has suffered afterwatching her child die in front of her. Howdo you think you will deal with that?” Afterwe ask a question like that, we needRichard Gabriel is the co-author of theThomson West book, Jury Selection: Strategyand Science and the creator of thenew Jury Mediation resolution tool. He isPresident of Decision Analysis, a nationaltrial consulting company. Continued on page 10Jury awards $48 million for victims ofplane crash ......................................12Plumber awarded $41 million in trialover mesothelioma...........................13Home video helps win record$58M malpractice verdict .................16Small firm wins $4.5 million verdictfor missed infection..........................17Just FiledCouple sues over uraniumcontamination in water.....................18Bills, Rules & RegsGuidelines released for courtroomcamera pilot program .......................19Top DecisionsExpedia can’t be sued over e-mailedreceipt..............................................20Classifieds ......................................26

2011 LUSA 153 / June 2011 Lawyers USA / Page 5lawyersusaonline.com©iStockphoto.com/Ilker YükselYou can find all of these articles and more bygoing to lawyersusaonline.com and searchingthe Lawyers USA website.If you do not have a password, sign up now! Free onlineaccess is included with your Lawyers USA subscription.Go to lawyersusaonline.com and click on the Subscribelink or call 1-800-451-9998.Read more up-to-the-minute legal news.Lawmakers again try to ban forced arbitration clausesTaking aim at a U.S. Supreme Court ruling they say strips workers and consumersof their right to redress against powerful corporations, lawmakers in both housesreintroduced the Arbitration Fairness Act.Get the latest legal buzzon our DC Dicta blog.Justices using more words,dictionariesAs the October 2010 term drawsnearer to its close, Supreme Court opinionsare getting wordier.Find court opinion analysison our Benchmarks blog.Cat shooter faces liability for‘cost of repair’Pet owners typically have a tough timerecovering damages for injuries to animalsthat have little or no intrinsic value.Find more casesummaries - faster.Landlord’s agent not liableunder Fair Debt ActAn apartment manager is not liable underfederal debt collection law for actionstaken in connection with the attemptedeviction of a tenant, the 7th Circuit hasruled in affirming judgment.Federal airline law preemptsskycap tips suitFederal law regulating the airline industrypreempts a suit brought by skycaps whoclaimed that an American Airlines’ baggagefee violated a state law regulating tips, the1st Circuit has ruled in reversing a $333,000jury verdict.SIDEBARUsing checklists in your law practicePRACTICEMANAGEMENTBy Jim CallowayMost lawyers use a variety of lists – “todo” lists, task lists, checklists.Because lawyers tend to be deadlinedriven and the consequences of missingcertain deadlines can be quite severe, manyuse their calendar as a primary organizationaltool. And almost every one of uskeeps a “to do” list.Such a list may take the form of a massivecomputerized task list of everything thatneeds to be done and by when, or a scrapof paper with the seven things that need tobe done by the end of the day scribbled onit. If the lawyer doesn’t personally keep a “todo” list, it is probably because an assistantkeeps the list on the lawyer’s behalf.In addition, almost every lawyer alsouses a checklist for some projects. A checklistmay be used to make sure all contingenciesof an estate plan have been discussedor that all required allegations areincluded in a court pleading.Lawyers may think they know all thereis to know about checklists, but most lawfirms are only scratching the surface in usingthem successfully. One improvementwe should see in law firm operations in thenext several years is the development anduse of more sophisticated checklists.I have to credit my new-found enthusiasmfor law office checklists to a solo practitionernamed Tim Green from Guthrie,Okla. He directed my attention to a short,Jim Calloway is the Director of the OklahomaBar Association Management AssistanceProgram. He publishes the weblog, JimCalloway’s Law Practice Tips at http://jimcalloway.typepad.com.He serves on theABA Law Practice Management SectionCouncil and is also chair of its Practice ManagementAdvisor’s committee. He is a frequentspeaker on law office managementand technology issues.easy-to-read book called The Checklist Manifestoby Atul Gawande.Gawande’s book is a great read that coversa range of topics, from how checklistseliminated many airline crashes and savedlives in surgeries to the real reason why VanHalen’s David Lee Roth famously demandeda bowl of M&M’s be placed in the band’sdressing room with all of thebrown onesremoved.We lawyerstend to think ofusing forms andchecklists only forcomplex projects.But both Green andGawande assert thatchecklists are extremelyvaluable for the routine and themundane.As Green notes, “We have to do alot of thinking as lawyers. Anything thatfrees us from having to think about somethingmakes our lives better and us moreproductive.”A checklist allows lawyers to handle aroutine task accurately and quickly. A goodchecklist also makes it easier to delegate tosomeone else when necessary.Draw on your own experience. If thereare ten steps that need to be done to accomplisha task and 100 people try to do itfrom memory, how many would you thinkcorrectly recall all 10 items? Certainly noone would answer 100 percent. Perhaps 80percent? And what if the step missed is acritical step?Green starts every day with an openingroutine set out on a checklist that beginswith turning on his computer as he sitsdown at his desk. Is that because is he isconcerned he might forget to turn on hiscomputer some day and leave it off all day?Of course not. It is simply a planned sequenceto beginning his workday.Operating with checklists allows alawyer to complete tasks more quickly, inthe right sequence and with 100 percent accuracy.And you do not have to strain yourbrain thinking about it. Achieving perfectionwith less time and effort is quite an accomplishment.Lawyers tend to be creative problemsolvers. The idea of spending the work dayfollowing detailed checklists may strikemany as a rigid and unappealing businessmodel. But the opposite is actually true. Ifyou are going to have to do many simpleand mundane tasks (and we all do), it is betterto get them completed in less time andwith less effort. That frees up more of yourtime for the valuable and creative work oflawyering and it might even allow you to gohome a little earlier at night.Highly skilled surgeons who were toldthat they should use pre-surgery checklistsoften did not support the concept and wereeven a bit insulted, according to Gawande’sbook. He noted that the initial reaction ofmany was along the lines of “why should alist tell me to wash my hands? I wash beforeevery surgery.”Yet in the initial study, with a very simplechecklist, post-operative infections,which always result in more expense and©iStockphoto.comcan lead to a patient’s death, were reducedso dramatically that even the most scornfulnaysayer had to admit that this was avaluable tool.The story of Captain Chesley Sullenberger,the pilot of the US Airways planethat crashed into the Hudson River is wellknown.He is truly a hero. Yet, when a flockof geese disabled the airplane’s engines, heturned to the checklist prepared for the situation.Many people had thought andplanned for this event, calmly, with no blaringalarms or falling airplane.In addition to providing the sequence ofattempts to restart the engines, there wasalso a step that stated, in effect, “Look fora safe place to land, preferably in water.”A lawyer who reads The Checklist Manifestoand implements its lessons may notget an invitation to the White House, butthat lawyer may become a hero to co-workers,clients and possibly even family.

Page 6 / Lawyers USA June 2011 / 2011 LUSA 154BUSINESSMATTERSOrganizingand using yourcontact listGetty ImagesSweat the small stuff:Small talk, that isConferences, bar events and business dinners all providelawyers with an opportunity to network and buildrelationships with colleagues and clients.But many attorneys dread the requisite small talk.In her book, The Fine Art of Small Talk: How to Start aConversation, Keep It Going, Build Rapport – And Leavea Positive Impression, Denver, Colo.-based speaker andtrainer Debra Fine offers tips for lawyers struggling withsmall talk.The key, she says, is using “hostbehavior to make other peoplecomfortable.”Here are some suggestions forbecoming a great conversationalist:• Plan ahead.Lawyers are great at completingtasks, Fine says. So “instead of saying‘I hate this, I can’t do it,’ create atask out of small talk,” she suggests.Set a goal of meeting three orfive new people at an event, andonce the goal is accomplished,leave the event or move on to talkingwith friends.• Assume the burden.Great conversationalists makeother people comfortable to talk to them, Fine explains.For example, at an event with eight people seated aroundthe table, “assume the burden of comfort for the entiretable and play host,” she says. “Introduce yourself andthe people you know and keep the conversation going.”To encourage conversation, Fine advises asking thingslike, “What keeps you busy outside of work?” or “Whatis your connection to the event or the host/hostess?”“If you ask a question like that, the person will giveyou something, and now you have a platform to talkabout,” she says.• Be careful with names.Be honest if you don’t remember a person’s name,Fine advises.“Say, ‘I am embarrassed to admit that I already forgotyour name,’ or ‘I remember meeting you at last year’sconference but I’m sorry I don’t remember your name,’”she says.Fine suggests looking at the roster for the event if possibleto help remember the names of the people who will bein attendance. And pay attention to how people introducethemselves: if a woman introduces herself as “Debra,” forexample, don’t call her “Debby” or “Deb.”“It’s not ok to shorten someone’s name,” Fine says.• Watch out for conversation killers.There are several things never to ask people, Fine says,including: “Are you married?” and “Do you have kids?”While building relationships involves getting toknow people, remember that there are boundaries, sheemphasizes.For example, “unless you know the answer,never ask, ‘How’s your job with X?’”Fine says. “If you aren’t familiar enough,they may not have that job anymore, andyou have put them in a terrible spot if theyhave been laid off or let go.”On the other hand, the classic subjectsto avoid – politics, religion and sports – arefine, as long as you remember to ask otherswhat their opinion is, instead of engagingin a monologue about your thoughts onthe stock market or Derek Jeter’s season,Fine says.• Build a relationship.When a person asks, “How have youbeen?” or “What’s been going on?” be preparedwith a one-sentence answer thatbuilds a basis for further conversation,Fine says.Those types of questions “are huge opportunities tobecome a three-dimensional human being to the otherperson,” she explains.Answering that you are looking forward to spending timewith your kids in the summer or saw a great movie lastweekend allows the other person to continue the conversationand for the two of you to connect.• Know how to end a conversation.Many lawyers have faced the situation where a clientor colleague won’t stop talking. “Use a white flag,” to signalthat the conversation is nearly over, Fine says, likethose waved at car racers when they only have one lapremaining. If someone is talking your ear off at an event,say something like, “It sounds like you had a great cruise.Before I go and talk to my client over there, tell me whatyou loved the most.”This way, the person has an opportunity to wrap upwhat they are talking about with dignity, Fine says.– CORREY E. STEPHENSONYou likely have manycontacts: clients, fellowattorneys, businessadvisors, friendsand family. Butis your contactlist organizedsuch that youcan benefit fromit as much aspossible?“Organizationallowslawyers to focuson high-©iStockphoto.com/Mark Stayest-priority people,such as clients that have the best opportunities forthem,” says Sally Schmidt, President of Schmidt Marketing,Inc. in Edina, Minn. “If they don’t keep [their contacts]organized, then they tend to just react. They show up ifthey’re invited, but they aren’t intentionally choosingtheir path.”Schmidt gave the following suggestions to help lawyersget the most from their contacts:ConsolidateTo start, collect all of your contacts’ information electronicallyin one place, said Schmidt.“The best way to do this is to take all the different sourcesand [have] your assistant … put them all into [Microsoft]Outlook,” she said.How to go about completing this task depends wherean attorney is in his or her career.For attorneys who recently began practicing, “you couldprobably sit down and start from scratch. Law schoolfriends, professors you want to stay close with, clerks, anybody,”said Schmidt. “If you’re 20 years in, take just the lasttwo years of activities, events, seminars, etc., and yourclient list. The biggest thing is to start collecting, and everytime you meet someone, add them to the list.”CategorizeSchmidt suggests that lawyers arrange their contact listsinto a moderate number of categories based on theirneeds. Examples include personal contacts, insurance attorneys,bankruptcy attorneys or law school professors.“Everyone should be on the contact list. It’s what youdecide to do with them that varies,” said Schmidt. “Categoriesgive you an easy way to find the right people to communicatewith.”Prioritize“Within each grouping, sort by priority,” Schmidt said.“If you have 20 contacts, then they’re all a priority, but ifyou have 200, you need to decide who you should be [paying]the most attention [to].”One way to do this is by having “‘A,’ ‘B’ and ‘C’ lists,” saidSchmidt. “Every year, get out your lists and decide if thereare any As that drop down to B and any Bs that should beAs or Cs.”Maintain contactAfter organizing your list, set up a regular schedule ofwhom to contact and when.“Maybe you have one good client, or three you can’t affordto lose, so you start with those and schedule somesort of activity, such as a monthly lunch or quarterly ‘howare we doing?’ visit,” Schmidt advised. “Each contact is different,but you can use your system to tell you when youshould” take action with each one.– TONY OGDEN

2011 LUSA 155 / June 2011 Lawyers USA / Page 7Legal writing in 140 characters or lessForget everything you learned in law school aboutlegal writing, because the rules have changed in theera of the tweet, the text and the two-second attentionspan of most readers.Lawyers have been some of the slowest writers tocatch up to the changes wrought by new technology,according to Steven D. Stark, a writing coach for lawyers,who recently gave a webinar called “Legal writing in thesmartphone age.”Blame it on the Latin and French roots of our legalvocabulary, or training that encourages lawyers to beas verbose and cryptic as possible – exactly the oppositeof 21st century communication.Stark, author of “Writing to Win,” gives attorneyssome simple rules of the Internet era that lawyerscan carry over into writing legal memos, letters ande-mails:Lead with your conclusion.State your point first, then explain the steps youtook to get there. While this is counterintuitive to mostlawyers, Stark advises applying this rule to every sectionof a legal memo.“Unless the reader knows where you’re heading, it’svery difficult to follow what you’re saying,” said Stark,who is based in Belmont, Mass.Stark suggests that every time you sit down to write,whether a two-paragraph e-mail or a 30-page memo,think about what you would say if your reader stoppedyou on the street and said, “Look, I’ve only got 45 seconds– who are you, what do you want and why?”Think like a marketer.Lawyers and advertisers are both in the businessof persuasion, says Stark. But lawyers use big wordsand beat around the bush while advertisers are pithyand direct.“Great taste, less filling” gets the message acrosswith the fewest words in a memorable slogan.Choose short words instead of multisyllabic words.©iStockphoto.com/Sean LockeLimit sentences to 25 words or less. Use strong verbsin the active tense. Martin Luther King Jr. didn’t namehis speech “A Dream’s Been Had By Me” for a reason.E-mail: 150 words max.That’s 5-6 sentences. If an e-mail goes longer, Starkattaches it in a PDF and limits his e-mail to say, “Thisis important, you need to download it and read itcarefully.”For e-mail, use the second person, forget excessniceties and if you’re not asking the recipient to dosomething, you shouldn’t be sending it at all.Web models.Package your memos like Wikipedia and Mapquest.Mapquest leads with the conclusion, gives directionsin the form of a list and gives commands in thesecond person.“What you lose in formality, you gain in comprehension,”said Stark. “I wouldn’t use it in the U.S.Supreme Court, but I’ve seen it in the D.C. Circuit, suchas, ‘If you look at this statute and the regulatory history,you will find….’”Lawyers can also mimic Wikipedia’s use of a tableof contents, highlight boxes, links and varied fontsizes, colors and types. These tools can be used inmemos to tell the reader how much attention to payto certain parts, said Stark.– SYLVIA HSIEHHow to interview a legalassistant candidate“The lawyer who is not used to interviewingmight want to jump in [andsay]: ‘Here at this firm this is whatwe’d want you to do,’” Estrin said.“Then it’s really easy for a candidateto say exactly what you want to hear.The best thing to do is stay quiet andnot say anything about what the jobis like until later. When you are the oneasking the questions, you have totalcontrol of the interview.”After you’re asked your questions,then it’s ok to describe the joband finish up by asking what questionsthe candidate has, Estrin said.Looking to hire a paralegal or legal support staffer? Find the ideal candidatewhile avoiding pitfalls by following these interviewing tips fromrecruiting experts:Have a script“When you are at a smaller firm and you are interviewing a numberof candidates, they can all run together in your mind,” said Chere B. Estrin,a Los Angeles-based legal career coach who has authored severalbook including “The Paralegal Career Guide.”Using a script of questions that you ask every candidate make it easierto remember who stands out.“It’s the best way to comparevvvtv one candidate to another,” Estrinsaid.Dian Milton Kaputa, owner of the Washington-based legal recruitingfirm Global Excellence, said having candidates fill out an applicationbefore the interview is very helpful. On the application, ask about fiveyearplans.“If you are hiring what you consider to be a career paralegal and theysay they are going to end up opening a sandal shop in the Bahamas, thatmay not be your best candidate,” Kaputa noted.Be in controlAlways start the interview by asking the questions, not answeringthem, Estrin said.Be honest about the position©iStockphoto.com/Daniel LaflorAt smaller firms, legal assistants and paralegals will often be requiredto do other jobs, from answering phones to making copies and organizinglunch.“Ask them: ‘How do you feel about playing more of a support role?”Kaputa said. “A lot of times at smaller firms they will be required to doa lot of things they didn’t have to do at other jobs. If they say: ‘I don’tphotocopy,’ keep looking.”Get the back story“The first question I always ask is ‘why did you leave [previous jobs]?’”Estrin said.If the candidate is straight out of school or has less experience, it’sstill important to ask about qualifications.“Did they work while going to college? Did they take summers off togo to Europe?” Kaputa asked. “If you are looking for a go-getter, look forsomeone who worked during their summers or got an internship at alaw firm.”Make them put it in writing“I prefer not to ask … for a [pre-prepared] writing sample,” Kaputasaid. “It could have been prepared with the help of a teacher or someoneelse. I prefer to give them something to write about. Ask them towrite a memo, or do a site-checking test.”– KIMBERLY ATKINS

Page 8 / Lawyers USA June 2011 / 2011 LUSA 156BUSINESS MATTERSIs it ethical to withhold a file froma client who refuses to pay?THE COMPASSBy ThomasSpahnTom Spahn practices as a commercial litigatorat McGuireWoods in McLean, Va. Heregularly advises a number of Fortune 500companies on issues involving ethics, conflictsof interest, the attorney-client privilegeand corporate investigations.Most lawyers have faced this scenario:a client refuses to payyour last bill, but insists thatyou send her your file on thecase. Not surprisingly, many lawyers’ immediatereaction is to refuse to turn over thefile until the client pays. But is that ethical?The ABA Model Rules are remarkably unhelpfulto lawyers trying to answer thisquestion. ABA Model Rule 1.16(d) simplyreminds lawyers that they must “take stepsto the extent reasonably practicable to protecta [former] client’s interests, such assurrendering papers and property to whichthe client is entitled.” The rule then explainsthat such a lawyer “may retain papers relatingto the client to the extent permittedby other law.” So much for useful guidance.Even if a client pays the lawyer’s entirebill, there may be some question aboutwhat part of the file a lawyer must turn overat the former client’s request.Some states follow what is called the“end product” rule, which requires lawyersto turn over only documents the client gavethe lawyer, or finished documents such asfiled pleadings, final drafts of wills, etc. Otherstates follow the “entire file” approach,which requires lawyers to turn over nearlytheir entire file. (Travis v. Supreme CourtCommittee on Professional Conduct, 306S.W.3d 3 (Ark. 2009).)Most states follow the latter approach. Forexample, according to New York City LegalEthics Opinion 2008-1, “In New York, a clienthas a presumptive right to the lawyer’s entirefile in connection with a representation, subjectto narrow exceptions.” However, even inthese jurisdictions, lawyers usually may withholdpurely internal law office managementdocuments, such as conflict of interest reports,staffing memoranda, etc.If a client does not pay the bill, courtsand bars undertake a different analysis. Traditionally,states equated a lawyer’s rightswith those of an auto mechanic, who generallycan retain your car until you pay forthe repairs. Some state courts and bars stilltake this approach. (Brickell Place CondoAss’n v. Joseph H. Ganguzza & Associates,P.A., 31 So. 3d 287 (Fla. Ct. App. 2010).)However, several years ago courts andbars began to weaken this analogy. Manybars now recognize that a lawyer cannottake advantage of this traditional rule if itwould harm the former client. For instance,in 1996 the Pennsylvania Bar acknowledgedthat “[t]here is recognizedexception to asserting a lien if the retentionof the file would cause ‘substantialprejudice’ to your client.” (PennsylvaniaLEO 1996-157 (11/20/96).)Other state bars have adopted asofter “prejudice” standard, such asthe Arizona Bar, which stated that “[n]olien can attach to documents when the attachmentwould prejudice the client’srights.” (Arizona LEO 04-01 (1/2004).)At the other end of the spectrum, somebars explicitly indicate that lawyers may notretain a client’s file even if it would not harmthe client at all, such as Virginia, under Rule1.16(e), which requires lawyers to turn overcertain portions of their file to clients“whether or not the client has paid the feesand costs owed the lawyer.”In addition to checking the applicableethics rules, lawyers should also look forany applicable state statutes. They mightalso consider the risk of following their initialinstinct to “play chicken” with a formerclient. Although retaining the file certainlygives the lawyer leverage in any fee dispute,turning over the file does not prevent thelawyer from suing the former client for unpaidfees and costs. On the other hand, it©iStockphoto.comdeprives the client of a potentially valuableargument – that the lawyer’s retention ofthe file caused the client to lose a case, missclosing a lucrative transaction, etc.Finally, lawyers should recognize thatthese bar opinions address only the lawyer’sethical obligation to turn over files whenthe client asks for them. In a litigation setting,clients can use regular discovery toseek the files.Although the ABA Model Rules’ silenceis frustrating and unhelpful, the trend clearlyseems to be in favor of weakening orabandoning lawyers’ traditional right to retaina client’s files until the client pays thelawyer. 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2011 LUSA 157 / June 2011 Lawyers USA / Page 9BUSINESS MATTERSWhen jurors zone out: Trying a case tojurors with attention-deficit disorderBy Sylvia HsiehStaff writerIf you notice a juror staring off intothe vaulted courtroom ceiling duringyour carefully planned trial, you mayhave a juror with attention-deficitdisorder.Zoning in and out, difficulty concentratingand getting frustrated easily are someof the symptoms of ADHD (attention deficithyperactivity disorder) that could derailyour trial message.“I’ve seen it in focus groups. People whohave attention-deficit disorder are ready toclimb the walls,” said Amy Singer of TrialConsultants Inc. in Gainesville, Fla., whohas conducted studies on the issue.Many lawyers are changing the way theycommunicate in the courtroom to reachthese jurors.In complex legal cases, jurors with ADHDmay get bored quickly, said Dr. AndrewSheldon, a lawyer, psychotherapist andjury consultant in Atlanta who himself hasattention-deficit disorder.“Impatience becomes an issue in not beingwilling or not being able to wait whileeverything gets explained,” Sheldon said.He said that this can carry over into deliberationswhere a juror with ADHD mayhave a tendency to make up his or her mindmore quickly and with less information, ormay rely on other jurors if he or she missedinformation during the trial.In the rapid-fire, hyper-visual, multi-taskingculture we live in, even jurors withoutADHD will demand trial evidence packagedin a way they are used to.Some lawyers have begun to treat all jurorsunder the age of 30 – some even sayunder 40 – as essentially having attentiondeficitdisorder.“Folks in their 30s are all into, ‘Give it tome now, don’t make me work for it – cue thefood, and I’ll swallow it.’ For trial lawyers, itmeans you not only have to order it, youhave to prepare it and feed it to them,” saidErvin A. Gonzalez, a trial attorney who representsplaintiffs in products liability cases.Spotting the ADHD jurorTrial consultants recommend a few waysto find out if there are jurors with ADHD onyour voir dire panel.One way is to ask.“It’s a lawyer’s obligation to ask if anyonehas a medical condition, including attention-deficit,that doesn’t allow them to fullyconcentrate, listen, stay involved or focus.… If a juror cannot serve because theycannot focus, they should be excused,” saidGonzalez, a partner at Colson, Hicks, Colson,Cooper, Martinez, Gonzalez, Kalbac &Kane in Coral Gables, Fla.Asking jurors to reveal their list of medicationsis more controversial, but somelawyers do it.Elizabeth Babbitt, a consultant at LitigationInsights in Overland Park, Kan., saidthat when allowed to, she asks jurors onthe questionnaire what types of medicationthey are on and to describe any problems,such as language, vision, hearing or psychologicalissues, that might prevent themfrom s erving as a juror.With concerns about running afoul of privacyrules under the Health InsurancePortability and Accountability Act (HIPAA),some lawyers stop short of asking aboutspecific medications, and instead ask moregenerally about whether potential jurorshave difficulty focusing.“What you do is ask, ‘How many of youhave any problems with concentration,memory, hearing, vision or anything goingon in your life that prevents you from givingthis case your full attention?’” said Singer.Some lawyers use their own observationalskills during voir dire to shepherdthose with drifting attention spans backto earth.Spencer Aronfeld of Aronfeld Trial Lawyers“You have to have a verystrong trial theme that criesout what your case is about.”– Ervin A. Gonzalezin Miami starts with voir dire to grab the panel’sattention early on.“I try to create a process through whichall jurors are engaged. If you start questioningone juror in the back corner, the restwill zone out. If I’m talking to Mrs. Rodriguezabout her experience with tampons, Mr.Smith knows he doesn’t need to pay attention.So, I’ll crisscross the room, [which]keeps them engaged and puts them on noticethat ‘I better pay attention, or I’ll getembarrassed,’” said Aronfeld, who representsplaintiffs in med-mal cases.It’s important to realize that a juror withADHD is not necessarily a bad juror. Accordingto Babbitt, some people with attention-deficitdisorder can be “hyperfocused,”are able to see both the minute detailand the big picture, and can be curious,intuitive and very engaged.Depending on the facts of a case, “it canbe good for you to have a juror with attentiondeficit if it involves something the juroris interested in,” said Babbitt.Aronfeld says sometimes the decisionabout whether to bring a case to trial dependson whether the topic can hold the interestof jurors with short attention spans.In some cases, the facts can’t help but interest.The last case Aronfeld tried involveda diabetic whose penile implant procedureturned gangrenous, ending in a penis amputation.“There wasn’t a person in the courtroomwho wasn’t riveted by that case,” saidAronsfeld.Making adjustmentsTrial lawyers are learning to adjust theirmessage to accommodate jurors who havea waning attention span.“I am not going to keep a witness on the©iStockphoto.com/Rich Leggstand for hours and belabor points. It’smore of and in-and-out presentation. Get tothe point very quickly and use a lot ofgraphics to illustrate points,” said Aronfeld.The order in which you present evidenceis also important.Sheldon, the jury consultant with attention-deficitdisorder, said he does not thinkin a linear fashion.“The way I put things together is not Athrough D. It’s more like A to M to C to X,”he said, adding that jurors with attentiondeficitdisorder will respond to graphicsbetter than being run over with words.“The biggest risk is that all the jurors seeis your lips moving,” said Singer, who suggestsbreaking trial themes into individualcharts with one concept per chart and leavinga chart up during testimony so thateven if a juror stops paying attention, he orshe can look up and see the chart with themain point.She also recommends using visuals earlyand often.For example, in opening statements, anattorney should punctuate each of her corearguments with a graphic.People with attention deficit respond betterto certain colors, such as yellow and orange,said Aronfeld, who often blows up ablack and white image then adds highlightingin yellows and oranges in real time duringtrial to keep jurors “constantly engaged.”“You have to have a very strong trialtheme that cries out what your case is about,and the demonstrative aids must be powerfuland quick. If it’s more than three secondsinto it and they can’t figure it out, [you willlose them. And] once they’re gone, you’renot getting them back,” said Gonzalez.Questions or comments can be directed to thewriter at: sylvia.hsieh@lawyersusaonline.com

Page 10 / Lawyers USA June 2011 / 2011 LUSA 158BUSINESS MATTERSUsing the Internet for researchEveryone knows the quantity of informationavailable on the web hasgrown exponentially. But how canlitigators find the most useful andcost effective sites for research?Volume Two of “Find Info Like a Pro” maybe able to offer some guidance.In Volume One, authors Carole A. Levittand Mark E. Rosch (the president and vicepresident of Internet for Lawyers, which offersInternet research training to legal professionals)provided tips on some of thebest websites for finding information andhow to use them effectively.The second volume focuses on publiclyavailable information on government websiteslike PACER and state and local governmentsites.Levitt and Rosch recently spoke withLawyers USA staff writer Correy Stephensonabout their book and how litigators canget the most value out of Internet research:Lawyers USA: Why do lawyers need guidancein this area?Rosch: Just because more information isbecoming available online hasn’t made itany easier to find. Very often governmentagencies do a very poor job of one, publicizingthat information is available, andtwo, documenting how you dig that informationout when you get to the site.Practicing attorneys don’t have the timeto sift through a website, figure out what thissearch box does, or how to drill down to theinformation that is really useful to them. Thegoal of this book is to show attorneys whereto go to get the information that is most usefulto them in the least amount of time.Levitt: The book is a cheat sheet!Lawyers USA: What is your advice onfree vs. paid information?Levitt: A lot of lawyers pay for informationand don’t realize they could get it forfree. For example, Google Scholar offersfree case law if you know how to search it.The goal of our book is to tell lawyerswhere to find information for free or whento pay for it, as there are certain times paydatabases are necessary.Rosch: Real property records are the bestexample of when paying for informationmakes sense. Real property records arepublic documents, but local jurisdictions byvarying degree may or may not make the informationavailable on the Internet for free.Some jurisdictions allow you to searchby name and see all of the property records,but in others you have to search with an address.So if you are trying to do a state-wideor a national real estate search, looking forrecords from free sources online will betime-prohibitive, and going to a paid databasemakes more sense.Lawyers USA: What is the best site for investigativeresearch that lawyers aren’t using?Levitt: When lawyers perform investigativeresearch, most don’t think aboutchecking out the docket database and thecase law database to search a person ora company by name. I think most lawyersconsider the case law database as only away to search for case law when writinga brief.We write about the very inexpensive governmentPACER database, as well as a numberof state bar organizations that offer freecase law searching in databases like Casemakeror Fastcase. Most attorneys are familiarwith PACER for filing documents, butare not familiar with using it as an investigativetool. If you read a complaint or answersto interrogatories about a particularperson or company, you can get valuablebackground information or leads (rememberingthat a complaint contains allegations,not facts). Lawyers are so wedded tousing a pay database that they don’t evenexplore free databases like these.Rosch: Similar to PACER, the Securitiesand Exchange Commission’s database,EDGAR, can be very useful in the same way.It used to require a company name or tickersymbol to search, but the SEC now allowsfull-text searching, so you can search by anindividual or company’s name and find allthe company filings that mention them.Lawyers USA: How can lawyers best usethis book?Rosch: The book is less of a cover-to-coverread and more of a desktop referencebook. Look through the table of contents,find the chapters that are most applicableto your practice and become familiar withwhat’s in the book. Then, when you needthat kind of information, use the book as aguide to dig it out.We also continuously update the bookvia our blog, which highlights changes tosites or new resources.Levitt: The book uses templates to quicklyshow readers what each site is all about.From a lawyer’s standpoint, it explains why[you] would use this particular site, talksabout the contents of the site – with lots ofscreen shots – and our view of what we likeabout the site, or what we might like to seeimproved.There is [also] a CD included that givesyou the ability to link to any site mentionedin the book, arranged alphabetically and bytopic. So if you are working on a bankruptcycase, you can look up bankruptcy andfind all the related sites.Rosch: One of our pet peeves with otherbooks is that you don’t know whetheror not a site is free until you dig into thedescription. We wanted to make it asclear as possible, as early as possible,what readers were getting themselvesinto, so we included the “$” symbol todesignate a paid site at the beginning ofthe description.We also include real-world war stories,which are examples from lawyers who haveused these resources. … The war storiesshow exactly how other lawyers in similarsituations used these sites and this informationeffectively.Questions or comments can be directed to the writer at:correy.stephenson@lawyersusaonline.comSeven simple steps can help you in picking better juriesContinued from page 4to be very quiet. Jurors will struggle withthe question and they need to struggle withit. This will tell you how they will grapplewith the issue during the trial. Also, watchtheir nonverbal responses very carefully becausethey will tell you a great deal aboutthe jurors’ reaction to the issue.Step #4: Create a dialogue or mini-deliberationamong jurors.You are not just picking individual jurors.You are picking a group of people to decideyour case. You want to see how they interactand work with each other.So ask Juror #7 how much he thinks amanufacturer considers consumer safetywhen it is designing a product. Then ask Juror#11 how she feels about Juror #7’s comment.Keep bouncing the issues around thejury box until you are facilitating a discussionamong the jurors.Make sure you hear from everyone youthink may be a strong opinion leader onthe topic. This is essentially recreating thedeliberation dynamic in voir dire. Youwant to see how the jury works with oragainst each other, and how the personalitiesmesh or clash.Step #5: Don’t sabotage your voir dire.Many attorneys don’t ask jurors key questionsbecause they are concerned that a juror’sstrong opinions will “poison the panel.”Stop worrying. In most cases, jurors alreadyhave their own strongly held beliefs.Hearing someone else discuss his or herfeelings typically reinforces or contradictsa person’s own belief but usually doesn’tinfluence it. It’s better to get those attitudesout in the open so you can decide whetherto make a cause or peremptory challengerather than let those attitudes play out indeliberations in an unpleasant way.Also, stop spending significant time indoctrinatingjurors about your case or“planting themes.” Wait until opening statements.Voir dire is the time to let them talkand target unfavorable jurors.Many an attorney has lost a cause challengeand had to use a precious peremptorystrike after asking, “But do you think you canbe fair and impartial?” Do not ask this questionunless you are trying to rehabilitate a favorablejuror you might lose for cause.Similarly, only ask a favorable juror youmight lose for cause if he or she can “setthat opinion aside and decide the case onthe evidence.” By eliminating biased jurorswith cause challenges, you can preserveyour precious few peremptory challengesfor questionable jurors, improving the overallcomposition of the panel.Step #6: Look at the whole panel whenmaking your strikes.We sometimes focus so much on eliminatingjurors with any negative characteristicsthat we lose the big picture. We arepicking a jury, a group that ultimately hasto work together toward a verdict. Whileone juror may not be great on a single issue,they may be a follower and have a goodrapport with a couple of other jurors youlike. Figure out the kind of personality thatfits your case best (e.g., analytical, empathetic)and look for a group that seems toembody those traits. This may mean thatyou leave a juror or two on the panel whohas a couple of negative traits.Step #7: Tailor your case to your jury.If you have taken notes on what jurorssaid during voir dire, use these themes andphrases in your opening statements, examinationsand closing arguments. If youhave asked evocative questions, the jurorshave told you what is important to them.Using that information in presenting yourevidence demonstrates that you are workingto make your case understandable andmeaningful to them.

2011 LUSA 159 / June 2011 Lawyers USA / Page 11VERDICTS &SETTLEMENTS$40 million for Florida tobacco widowerBy Correy E. StephensonStaff writerAJacksonville, Fla. jury has awarded atotal of $40 million to the widowerof a smoker who died of chronicobstructive pulmonary disease,including $34 million in punitive damages.It was the third-highest verdict so far inthe Engle progeny cases, where individualtrials are held to determine if the plaintiffwas addicted to cigarettes and whetherthat addiction caused his or her injury.If a jury answers affirmatively, they arepresented with the Engle findings: that cigarettesare defective, unreasonably dangerousand addictive, and that the tobaccoAT-A-GLANCE✦ After the six-person jurydeliberated the first phase of thetrial for about one hour, theyasked for a calculator. Fortyminutes later, they had a verdict.✦ The next day, the jury spentless than three hours deliberatingbefore awarding $34 millionin punitives against the twodefendants combined.companies conspired to conceal health andaddiction information with the intention ofconsumer reliance on the misinformation.After this verdict, two more plaintiffs wonEngle verdicts in May, with one receivingroughly $1 million and the other $3.6 million.(To read more about those cases, see “Plaintiffswin two more Engle suits,” on page 12.)Of the 46 cases tried to date, plaintiffshave won 33 cases, ranging from a $300 millionvictory to just $86,000.Keith Mitnik, a partner at Morgan & Morganin Orlando, Fla. – who won the secondhighestEngle verdict, $90.8 million, lastApril – represented the most recent plaintiff,Andy Allen, in his suit against R.J.Reynolds and Philip Morris on behalf of hisdeceased wife, Patty.Mitnik, who estimated his firm has 150 Englecases, said that plaintiffs will continue towin because “the bottom line in these casesis that we are right and they are wrong.”Both tobacco defendants said they planto appeal.“We will appeal because this court violatedFlorida law and due process by allowingthe plaintiff to rely on general findingsby a prior jury that are unconnectedto the facts in this case. We also think thatthe punitive damages award is excessiveand not supported by the evidence,” PhilipMorris said in a statement.David Howard, spokesperson for R.J.Reynolds Tobacco Co., said the companyis “disappointed with the jury’s decisionsin the matter and we will appeal.”‘A cigarette industry success story’Patty Allen started smoking in 1966 as asenior in high school and smoked almostuntil her death in 2009.“She fell directly into the model of whatturned out to be a cigarette industry successstory at the time,” Mitnik said. “She gothooked young and proceeded as if therewas no real reason to stop.”Mitnik said that over the years, Allen triedpatches, medication, hypnosis – just aboutanything – to quit, but was unable to do sobecause of the strength of her addiction.She was finally able to quit after her diagnosisbut died later that same year.Allen’s kids would hide her cigarettes“Internal companydocuments indicatedknowledge of the presenceof dangers, yet they notchedthe threat level down a bit.”– Keith Mitnikand her husband “begged her to quit smoking,”Mitnik said.While the couple’s relationship was generallypeaceful, “one of the few things theyfought about was her smoking,” he said. “Ilikened it to an intruder on your wife thatyou fight as hard as you can, but he livedwith that intruder for their entire marriage.”During the almost four-week long trial,the defense emphasized choice, Mitnik said.But he told jurors that Allen and other smokers’choices were made under the powerfulinfluence of addiction and the industry’sheavily financed, reassuring message.“One of our counter-arguments is thataddiction corrupts and destructs the naturalprocess of self-preservation,” he explained,which meant smokers like hisclient weren’t able to make an unfetteredchoice to continue smoking.As the public became increasingly awareof the dangers of cigarettes, Mitnik presentedevidence about the tobacco industry’scalculated decision to convince smokersit was ok to continue smoking.“Internal company documents indicatedknowledge of the presence of dangers, yetthey notched the threat level down a bit,”he said. So the companies – despite the factthey already had information as to the dangersof smoking – told the public that theywould investigate the health issues andwould let them know if anything was wrong,Mitnik said.“For smokers or those starting to smoke,it was the message they wanted to hear:there is no real reason to stop.”Mitnik told jurors the defendants “intentionallydrove the threat level down to keeppeople smoking, and they did it for one reason:money.”“That evidence is compelling in thecourtroom,” he said.Mitnik also stressed the importance of orientingthe jury to the time and place whenthe plaintiff began smoking and the tobaccoindustry began its decades-long campaign.“It is so hard for a jury of today to judgewhat was going on through the lens of a differenttime and place,” he explained. “Wehave to keep reminding jurors that this wasa different era.”Jurors: We need a calculatorAfter the six-person jury deliberated thefirst phase of the trial for about one hour,they asked for a calculator, Mitnik said.Forty minutes later, they had a verdict.Jurors awarded Allen $6 million in compensatorydamages.The next day, the jury spent less thanthree hours deliberating before awarding$34 million in punitive damages, split evenlybetween the two defendants.The jury apportioned 40 percent of thefault to Allen, decreasing the $6 millioncompensatory award to $3.6 million.“In order to get the attention of thesecompanies, it takes a lot of money,” Mitniksaid. “People don’t think in terms of billionsof dollars, so we have to try to make itsomething manageable and practicable.”He suggested jurors analogize a “luckyAmerican” with a net worth of $80,000 to aTo SubscribeLAWYERS USA Newspaper■ 2yr. (24 issues) subscription ($379)■ 1yr. (12 issues) subscription ($220)©iStockphoto.com/Stepan Popovdefendant with a net worth of $8 billion.(The companies have net worths of $7 billionand $9.2 billion, so Mitnik said he chosea number in between.)“If the individual gets a $200 speeding ticket,that hurts. That will have a big deterrenteffect,” he argued. “To create an equivalenttype of impact on a company with a networth of $8 billion, it would take $20 million.”Mitnik broke the comparison down in incrementsfor jurors to look at, understandand apply to the case.Plaintiff’s attorneys: Keith R. Mitnik, GregoryD. Prysock, Joe Taraska and Katy Massaof Morgan & Morgan in Orlando andJacksonville, Fla.Defense attorneys: Dennis Murphy ofJones Day in Cleveland for R.J. Reynolds;and Dan Webb of Winston & Strawn inChicago for Philip Morris.The case: Allen v. R.J. Reynolds; April 27,2011 (compensatory); April 28, 2011 (punitive);Duval County Circuit Court, Jacksonville,Fla.; Judge Tyrie Boyer.Questions or comments can be directed to the writer at:correy.stephenson@lawyersusaonline.comName ____________________________________________Firm___________________________Address __________________________________________________________________________City / State / Zip __________________________________________________________________Phone _____________________________________________Fax___________________________E-mail_____________________________________________■ Payment Enclosed ■ Bill Me Credit Card: ■ MC ■ Visa ■ Am ExCard No. ______________________________________ Exp. Date______________________Signature ______________________________________Make checks payable to:Lawyers USASubscription ServicesP.O. 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Page 12 / Lawyers USA June 2011 / 2011 LUSA 160VERDICTS & SETTLEMENTSPlaintiffs win two moreEngle tobacco suitsExtending the plaintiffs’ winning streakin the Engle tobacco litigation in Florida, juriesawarded roughly $1 million and $3.6million in two different cases in late May.The results mean that plaintiffs have won33 out of 46 trials to date, with defense verdictsand mistrials in the other cases.Momentum in the litigation – individualtobacco suits in Florida state court – hasfluctuated from record verdicts ($300 millionin November 2009) to smaller awardslike $260,000 to defense verdicts.Just prior to the latest plaintiffs’ victorieson May 20, jurors awarded the thirdhighestEngle verdict yet: $40 million to thewidower of a smoker who died of chronicobstructive pulmonary disease, including$34 million in punitive damages.For an article on that verdict, see page 11.Reese: Lack of quit attempts hurtsJeffrey H. Sloman and Allan Kaiser, partnersat the Ferraro Law Firm in Miami, representedplaintiff Julie Reese in their firstEngle case.Reese began smoking at the age of 10,Sloman said, and continues to smokeabout a pack and a half a day, despite havingundergone radiation after being diagnosedwith laryngeal cancer and sufferingfrom COPD.Sloman said the fact that Reese continuesto smoke and had limited quit attemptsprobably worked against her with the jury.He argued that she was “severely addicted”by the time the first warning labels appeared25 years after she first started smoking.He had an expert on addiction testifythat the 2010 Surgeon General’s report saidone of the strongest indicators of addictionis not even trying to quit in the face of horrendousconsequences, such as Reese’sCOPD and laryngeal cancer.The defense argued that enough informationwas in the public eye for Reese tobe aware of the dangers of smoking andthat she didn’t try hard enough to quit, Slomansaid.“They rolled out newspaper article afterarticle showing that everybody in the countryknew that smoking was bad, but theproblem with that is that the tobacco companiesand their fronts – like the TobaccoInstitute – would release stories saying thatcancer was actually caused by air pollution,”Sloman said. “For an addicted smoker,that misinformation is like a psychologicalcrutch to continue smoking.”The jury deliberated just four hours beforereturning its verdict of $3 million forpast harm and suffering and future harm ofroughly $600,000. Although the jury foundfor Reese, it apportioned 70 percent of thefault to her and only 30 percent to defendantR.J. Reynolds.With apportionment of fault, Reese willreceive approximately $1.65 million, Slomansaid. Jurors declined to award punitivedamages.R.J. Reynolds spokesperson David Howardsaid the company plans to appeal the verdict.Jewett: $1 million for estateIn a second trial that concluded on thesame day, a jury found for the estate of BarbaraJewett, who died in 2006. The juryawarded roughly $1 million in compensatorydamages to her estate and husband, Thomas.No punitive damages were awarded.Similar to the Reese case, jurors apportioned70 percent of the fault to Jewett andsplit the remaining fault between defendantsR.J. Reynolds (20 percent) and Lorillard(10 percent).Jewett’s attorney, Norwood Wilner, apartner at Wilner, Hartley & Metcalf in Jacksonville,Fla., said the case was an exampleof a “jury getting misled by the tobacco industrytrying to blame its customers for usingits product.”Wilner, who estimated that he is handlingmore than 3,000 Engle cases, said the de-Jury awards $48 millionfor victimsof plane crashBy Correy E. StephensonStaff writerAMissouri jury has awarded damagestotaling $48 million to thefamilies of five victims of aplane crash – $4 million eachin compensatory damages and a total of$28 million in punitive damages dividedamong them.Eight people boarded a plane for a skydivingflight on July 29, 2006, but just momentsafter take-off an engine exploded.For less than a minute the plane skimmedthe tops of trees until it crashed, resultingin the death of six people onboard.Representing four of the five familiesin a lawsuit against Doncasters, a London-basedaircraft engine parts manufacturer,lead counsel Gary C. Robb arguedthat the defendant substituted a differentmetal alloy for the compressor turbineblade than was recommended bythe engine manufacturer.“The people on board never had achance,” said Robb, a partner at Robb &Robb in St. Louis, Mo.Larry Kaplan of Kaplan, Massamillo &Andrews in Chicago, who representedthe defendant, did not return a call requestingcomment on the suit.Plaintiffs experiencedpre-impact terrorMoments after the DeHavilland TwinOtter airplane took off from the SullivanRegional Airport in Missouri, the right engineexploded.Those on board knew that the planewas going to crash, Robb said, and suffered52 seconds of pre-impact terror beforethe plane hit a tree and a utility pole.The plaintiffs included: VictoriaDelacroix, a 22-year-old making her firstjump; Melissa Berridge, 38, who was astaff member for a state senator; Robert“Lawyerswho thinkthat theycannotobtainadequateverdicts in small, ruralcommunities are wrong.”– Gary RobbThe plane above is pictured as the right engine exploded moments after take off,resulting in the deaths of six people onboard and leading to a $48 million verdict.Cook, a 22-year-old civil engineering studentwho had completed 1,700 jumps;Rob Walsh, 44, a freelance photographerand certified sky-diving instructor withmore than 5,000 jumps under his belt; andScott Cowan, who was 42. Cowan was theco-owner of Quantum Leap Skydiving andwas piloting the plane when it crashed.David Paternoster, a 34-year-old Missouriresident who was also onboard,was not a party to the lawsuit.One woman on board who survived didso because of fellow passenger Cook, Robbexplained. Cook told the woman, a firsttimeskydiver, that the plane was going tocrash, and that he was going to positionhis body to cushion her against the impact.“He sacrificed himself to save her,”Robb said, adding that she has since marriedand recently had a child.Doncasters substituted the differentalloy in the blade because it was cheaperthan the one recommended by Pratt& Whitney, the engine manufacturer,Robb said, and the alternate alloy wasnot strong enough to withstand the heat,force and speed of the engine.During the three-week trial, Robb presentedexpert testimony from an array offields, including aircraft metallurgy, aircraftfailure analysis, accident reconstruction,maintenance, piloting, aircraftdesign engineering, FAA compliance, preimpactterror and forensic economics.In addition, he presented evidence thatDoncasters knew of eight other enginefailures due to the fracture of the sameengine part, and showed jurors a photographtaken just as the engine exploded.The defense argued that it wasn’t thepart that failed, but that somehow a boltin another section of the engine cameloose and caused the failure, Robb said.“There are two problems with that argument.One, it is physically impossiblefor that bolt to get to the area to causethe damage that was visibly noted in theaccident, and secondly, in the history ofaviation, a failure of this bolt has neverbeen known to cause a crash,” he said.According to Robb, the defense alsoargued that the blade met FAA certificationstandards, but Robb’s FAA experttestified that the company hid key documentsfrom the FAA showing that theblade had failed performance testing andthat the company misled and misrepresenteddata to the FAA.AT-A-GLANCE✦ The jury deliberated about aday and a half before awarding$4 million in compensatorydamages to each family.✦ During the punitives phase,jurors deliberated less thanfour hours before awarding anadditional $28 million, whichwill be evenly split among theplaintiffs.Plaintiffs: Same award for each of usTrial was broken into two phases:compensatory damages, and if necessary,a punitive damages phase.The jury of seven women and five mendeliberated about a day and a half, Robbsaid, before awarding $4 million to eachfamily. He said the decision to requestthe same award for each family camefrom the families themselves.“The families felt that all the compensatoryamounts should be the same, becausethey didn’t feel right saying that one of theirlosses was greater or less than the others,”he said. “We told the jury that the plaintiffswanted the amount of compensatories tobe the same, even if it was all $0.”Once the compensatory award hadbeen decided, the punitive phase began,with both sides making additional arguments.This time, the jury deliberated lessthan four hours before awarding an additional$28 million, which will also be evenlysplit among the plaintiffs, Robb said.The second phase of trial presented thegreatest challenge, according to Robb.“In any case involving punitives, convincingpeople to punish a company ischallenging,” he said. “The evidence mustbe clear, and it must be overwhelming.”After the trial, Robb spoke with someof the jurors, who said they found thefacts of the case “overwhelming that theproduct was defective and that the companywas reckless and manipulative ofthe FAA.”Robb said the verdict is a reminder toattorneys that even so-called conservativejurisdictions can award large sumsof money to plaintiffs.“Lawyers who think that they cannotobtain adequate verdicts in small, ruralcommunities are wrong,” he said.Plaintiff’s attorneys: Gary C. Robband Anita Porte Robb of Robb & Robb inKansas City, Mo.; Steven P. Kuenzel ofEckelkamp Kuenzel in Union, Mo.; RandyW. James of James Legal Services in Summit,Mo.Defense attorneys: Larry Kaplan,Thomas S. Sokol and Paul H. Kuznestky ofKaplan, Massamillo & Andrews in Chicago,Ill.; Gary Mayes and Jill M. Johnson ofThompson Coburn in St. Louis, Mo.;Matthew C. Becker, sole practitioner inUnion, Mo.The case: Delacroix v. Doncasters;April 22, 2011 (compensatory verdict),April 24, 2011 (punitive verdict); CircuitCourt of Franklin County, Mo.; Judge GaelD. Wood.Questions or comments can be directed to the writerat: correy.stephenson@lawyersusaonline.com

2011 LUSA 161 / June 2011 Lawyers USA / Page 13VERDICTS & SETTLEMENTSfendants refused his offer of judgment for$50,000, and will now have to pay the plaintiff’sattorney fees under Florida state law.He predicted the defendants will continueto try each individual case until they exhaustall judicial options and/or the companies’businesspeople will realize it wouldbe more cost-effective to settle the cases.“These cases are settle-able,” Wilnersaid. “We know we can’t get all of the casesthrough the court system and that we willdiscount them to get a fair value.”Howard, the R.J. Reynolds spokesperson,declined to comment on the verdict,but said the company does plan to appeal.Lorillard declined to comment on theverdict.– Correy E. StephensonLawyer defrauded bybillionaire friend gets$196M judgmentA lawyer who won a $116 million verdictearlier this year for being defrauded by hisbillionaire friend after investing in his oiland gas company was awarded $196 millionin May by the judge.D. Bobbitt Noel Jr., a corporate bankruptcyattorney at Vinson & Elkins, investedroughly $28,000 in an energy companyowned by his high school friend, Texas oilmogul Trevor Rees-Jones, and later sold hisshare for $6.5 million.In March, a jury found that despite thekilling Noel made on the deal, he sold forfar less than his share was worth based onfraudulent information from his friendabout the company’s value.The jury’s findings of fact included manyoptions for the judge to consider in applyingdamages, from a low of $8.5 million to ahigh of $360 million.On May 18, the judge entered judgmentfor the $116 million in damages that the juryfound, and added $62.9 million for equitabledisgorgement. Prejudgment interest totaled$16.9 million and post-judgment interest onthe total $196 million award will be calculatedat five percent.Grant Harvey of Gibbs & Bruns in Houston,who represented the plaintiff at trial,said he was happy with the judgment,which he believes indicated that the judgetook the case seriously.“He, like the jury, did not approve ofRees-Jones’ conduct, believed his actionswere intentional and believed he committedfraud,” Harvey said. “He didn’t hit themwith the full extent of what he could have,but we’re happy with it.”The defendant has appealed the verdict.– Sylvia HsiehJury awards $7.72M forbotched condo conversionsJesse Kirchner didn’t shield a CharlestonCounty, S.C. jury from the $8 million in settlementdollars he had already secured inthe construction case before them.In fact, he was quite upfront with jurors.“We told the jury from the beginning thatit would cost $15.7 million to fix the buildings,”said Kirchner, a plaintiffs’ attorneywith Thurmond Kirchner Timbes & Yelverton.“We had already received $8 millionand we’re going to ask for the difference.”For his transparency, Kirchner’s clients− a class of 215 condo owners and theirowner’s association – got exactly what theywanted: a $7.72 million verdict.The owners of the condos, the TwelveOaks at Fenwick Plantation, had sued morethan a dozen construction contractors andsubcontractors over botched constructionwork on the exterior of the complex’s 12residential buildings.In 2006, a real estate developer convertedthe four-year-old buildings from apart-Continued on page 16Plumber awarded $41 millionin trial over mesotheliomaBy Correy E. StephensonStaff writerIn trying acase likethis, “[w]eneed to rollout theevidence in a simple,understandable format.”– Glibert PurcellIn a trial that began in December2010 and worked its way throughtwo juries to reach three differentverdicts, a retired plumber in Californiawas awarded a total of $41 millionfor developing mesothelioma from asbestosexposure.John Casey worked as a licensedplumber for 40 years at various buildingsites. He developed mesothelioma followingexposure to asbestos from theproducts he worked with and from beingaround other workers who used asbestos-containingproducts, accordingto his attorney, Gilbert Purcell of BraytonPurcell in Novato, Calif.Mesothelioma cases are “heart-wrenching,”Purcell said, noting that his client isin his eighteenth month since being diagnosedand was given a 12-to-18 monthprognosis.In trying a case like this, “[w]e need toroll out the evidence in a simple, understandableformat, because we are dealingwith a lot of science, medicine andhistorical documents, so we need to besure the jury is ready to take on anothertopic and we can’t move too fast.”Attorneys representing the two defendantsnamed in the verdict, generalcontractor FDCC California, Inc. (formerlyknown as Dinwiddie ConstructionCo.) and Kaiser Gypsum Co., a manufacturerof joint compounds and wallboardmaterials, did not respond to calls requestingcomment.Purcell said that trial Judge DonaldSullivan has already denied FDCC’s motionfor a new trial and JNOV; Kaiser Gypsumhas filed a similar motion, which willbe heard on June 16.Trial begins with 12 defendantsJohn Casey began working as an apprenticeplumber in 1965 and was licensedby the end of the decade. Overthe next 40 years, he worked as a plumberon high-rise commercial buildings in theSan Francisco area, retiring in 2008. Notlong after, Casey began to develop symptomsof mesothelioma, Purcell said, andwas diagnosed in January 2010.Because mesothelioma is such a debilitatingdisease with a 12-to-18 month prognosis,Purcell preserved Casey’s testimonywell before trial by videotaped deposition.At trial, he played about four hours oftape that included Casey recalling hisworking conditions, the buildings and siteshe worked at and the products he used.“That reduced the amount of time heneeded to be on the stand, when he wasweaker,” Purcell said. Casey spent aboutJohn Casey, pictured above with his wife Patricia, was awarded $41 million afterhe developed mesothelioma due to asbestos exposure at work.an hour updating the jury on his condition,and his wife of 40 years, Patricia,also testified.Purcell put several experts on thestand to educate jurors about the scienceand medicine involved in asbestos exposureand mesothelioma, including:• Two treating physicians, an oncologistand pulmonologist;• An industrial hygienist who testifiedabout asbestos products and what exposuresexisted for Casey as a plumber;• A pathologist who described whymesothelioma is an incurable diseasethat can’t be treated with surgicalintervention;• A cell biologist who explained the sequentialsteps from asbestos fiber inhalationto clinical diagnosis and cancer;• An expert in occupational and preventativemedicine, who told jurorsabout the history of the knowledge ofthe dangers of asbestos;• An epidemiologist; and• An economist.Trial began in December 2010 against12 defendants, but 10 of them settled atvarious times after it began, Purcell said.One settled right after opening statements,with the rest dropping out alongthe way until the final settlement afterclosing arguments. The aggregate totalof the settlements amounted to $7.8 million,Purcell said.That left just two defendants for the juryto consider: Kaiser Gypsum, maker of a jointcompound containing asbestos that Caseyworked with, and FDCC California, the successorto a general contractor of severaljobs Casey worked at over the years.According to Purcell, the two defendantsargued that Casey was exposed toother kinds of asbestos from other defendants,and that the exposures fromtheir products or interactions did notcontribute to his mesothelioma.FDCC also claimed it wasn’t aware ofthe dangers of asbestos until 1985, an argumentPurcell rebutted with severalsources of information, including Californiageneral safety orders dating backto 1936 and Occupational Safety andAT-A-GLANCE✦ The two defendants arguedthat the plaintiff was exposedto other kinds of asbestos fromother defendants, and that theirproducts did not contribute tohis mesothelioma.✦ One defendant also claimedit wasn’t aware of the dangersof asbestos until 1985,an argument the plaintiff’sattorney successfully rebutted.Health Administration regulations enactedin 1972.Jury deliberates for weeksThe jury began deliberating a 14-questionverdict form in the first week ofMarch, Purcell said. And they continuedto deliberate for weeks.“It was brutal,” Purcell said. But everyday, jurors would send two to four questionsto the judge. “We would have hearings,the judge would make a ruling andwe would pencil together a response,”Purcell said. “We’d be sending in an answerand here comes another question!”Despite the long wait, Purcell said thejury’s questions were revealing, as it wasclear they were working their way throughthe verdict form, and it was better than“total silence” from the jury room.The two-and-a-half weeks of deliberationswere “a roller-coaster ride,” he said.Jurors then reported they were hopelesslydeadlocked on the final questionof the form, the predicate question ofpunitive damages.Relying on California precedent, JudgeSullivan recorded the jury’s verdict onthe first 13 questions and declared a mistrialon the final question on the form.The first jury awarded $20 million incompensatory damages.However, based on the jury’s apportionmentof fault – 7 percent to FDCC andContinued on page 25

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Page 16 / Lawyers USA June 2011 / 2011 LUSA 164VERDICTS & SETTLEMENTSContinued from page 13ments to condos, selling them to policemen,teachers and businessmen at $150,000to $200,000 each.You could stand out in the parking lotand look at the buildings, and they lookedgreat,” Kirchner said. “It’s not really untilyou start peeling the layers of the onionback that you find considerable damagehidden and concealed in the exterior skinof the building, mostly the stucco.”By 2007, some residents had spotted waterstains along their windows. The stainsbetrayed the massive wood rot festering underthe buildings’ exteriors, Kirchner said.At the time the condo owners filed suit,the developer owned the owner’s association,which is rare, Kirchner said. He had toobtain a court order to allow a forensic investigatorto make test cuts in several exteriorwalls around the complex.The lawsuit over the condos named nearly16 defendants. All but one settled with theclass of condo owners during two mediationsessions. After one session in the summerof 2010, a set of defendants settled fora total of $5.96 million. The defendantsnabbed $2.04 million from another set of defendantsafter a January mediation session.After all the settlements, only one defendantremained: Plastering & Stucco Inc.,a now-defunct Orlando, Fla., company.“You run the risk of piecemealing the settlement,and that somebody who is the lastman standing is left with a large setoff orgood defenses,” Kirchner said. “But to settlewith everyone else and leave [that company]was not a hard decision. Our casewas strongest against them. The stuccowas the biggest problem.”James “J.J.” Anderson, the Charleston attorneyfor the stucco company, said hecouldn’t comment because the case is stillpending. A number of post-trial motions arestill pending before the trial court, Andersonsaid.Stucco is a concrete product, whichmeans it’s porous and is designed to absorba certain amount of water, Kirchnersaid. At trial, he said his expert highlightedthe failure of the stucco applicator to installa proper drainage system for incidentalmoisture.“They way they installed it, it trappedwater instead of letting it exit,” he said.Kirchner said Plastering & Stucco Inc. directedblame to defendants that had alreadysettled, including the siding installer and thecompany that installed the windows.“In South Carolina, you don’t have to besole contributor to damages to be held liable,”Kirchner said. “You just have to be acontributing factor. Our expert told the juryagain and again that the stucco applicatorwas the major cause of the damage.”The plaintiffs had also suggested the juryshould award $20 million in punitive damages,the annual revenue figure that Plastering& Stucco Inc. earned at the height ofits business.“We did suggest [punitives] to send amessage to an out-of-state contractor thatwhen they come into our state and constructlarge buildings that affect 216 homeowners,we expect them to follow the law,”Kirchner said.The jury awarded no punitive damages.– Allison RetkaA version of this article originally appearedin Lawyers USA’s sister publication,South Carolina Lawyers Weekly.Jury rules for Philip Morrisin suit brought by smokerA federal jury has ruled in favor of PhilipMorris in a suit brought by a smoker allegingthat the tobacco company’s cigarettescaused her lung cancer.Ann Grill was diagnosed with lung cancerin 2003 and filed suit in 2005, but shepassed away before the trial started. Herhusband and four children sought $340 mil-Home video helps win record$58M malpractice verdictBy Sylvia HsiehStaff writerAn unusual piece of evidence helpedthe parents of a baby born withbrain damage win a $58.6 millionjury verdict against the obstetricianwho delivered the baby.The evidence, a home video of themother’s face during delivery, alsocaptured the doctor’s alarm as eventsunfolded.“You could see joy turn to tragedyright before your eyes,” said KathleenNastri, who represented the plaintiffs.This is the second time Nastri tried thecase. The first trial ended almost exactlytwo years ago with a hung jury, 5-1 infavor of the plaintiff.The key difference, Nastri said, wasthis time she stuck to her theory ofAT-A-GLANCE✦ The verdict is the largestmalpractice award ever in thestate, beating out a previousrecord of around $30 millionthat the same firm won.✦ The jury awarded the $8.6million in compensatorydamages the plaintiffsasked for, plus $50 millionin non-economic damages.events rather than disputing the defensetheories of what happened.“The first time we spent days cross-examiningtheir experts and disputing theliterature. It became so complicated thatit didn’t make sense. This time we … keptthe focus on what we believed happened,”Nastri said.The verdict is the largest malpracticeaward ever in the state, beating out a previousrecord of around $30 million thatNastri’s firm, Koskoff, Koskoff & Biederin Bridgeport, Conn., also won.The jury awarded “every penny” of the$8.6 million in compensatory damagesthe plaintiffs asked for, and awarded $50million in non-economic damages, whichNastri’s co-counsel, James Horwitz, leftcompletely up the jury’s discretion inclosing arguments.Caught on tapeAfter six years of fertility treatments,Cathy D’Attilo, 38, and her husband, Dominic,50, finally conceived for the firstand only time in 2002.At about 38 weeks, a doctor’s visitshowed that Cathy’s amniotic fluid haddropped by half. Her obstetrician, Dr.Richard Viscarello, a high-risk fetal specialist,sent her home.Two days later she went in for aplanned caesarean section, but severalminutes after the incision the baby stillhad not been delivered.In the delivery room, Dominic held avideo camera recording Cathy as shetalked about how excited she was to seetheir new baby, Daniel.But her happiness was interrupted bythe doctor’s voice in the background saying“Shit!” or “Holy shit!”Cathy replies, “‘Holy shit?’ That can’tThe parents of Daniel D’Attilo won a $58 million verdict against the obstetrician whodelivered him too late, causing him to suffer from cerebral palsy.Kathleen NastriJames Horwitzbe good.”The doctor then states that the baby“is really [stuck] in there.”When Daniel was born, he was notbreathing or moving, was pale and hadno reflexes, Nastri said. According to theplaintiffs, Daniel’s brain was deprived ofoxygen in a condition known as hypoxicischemic encephalopathy that causescerebral palsy.The home video was replayed for thejury.“We argued – and [the defense] probablyended up agreeing – that you don’t say ‘holyshit’ in the delivery room with the motherand father there when you are a highlytrainedobstetrician. It not only had to bereally bad, but [it implied], ‘I wish I had donesomething differently,’” said Nastri.The plaintiff’s theory was that the doctorshould have delivered the baby twodays earlier when tests showed the amnioticfluid had dropped precipitously.The defense argued that performing acaesarean before 39 weeks was prohibitedby the policies of the practice, accordingto Nastri.But Nastri countered by saying that policyonly applied when a mother asked tobe delivered early, not in the case of a medically-indicatedcaesarean. Here, Cathy hadplanned to have a C-section all along becauseshe had a “bicornuate,” or heartshaped,uterus in which the uterus has twohalves and the baby grows in only one half.That abnormality and the fact that thebaby was in breech position made thepregnancy high-risk, Nastri said.The plaintiffs also claimed that thedoctor made two mistakes in the caesareanincisions, first by making the initialincision in the center of the uterusrather than centered over the half wherethe baby was, and second, by not makingan upside down T-shaped incision tomake delivery easier.According to Nastri, the defense devotedmost of its case to causation, puttingon only one expert for standard ofcare and five experts to dispute Daniel’scondition, claiming that he suffered fromfetal inflammatory response syndromecaused by an inflamed placenta.Unlike in the first trial, Nastri did notContinued on page 27

2011 LUSA 165 / June 2011 Lawyers USA / Page 17VERDICTS & SETTLEMENTSlion in damages.But after a three-week trial in federalcourt in New York, a nine person jury unanimouslyruled for the defense.“Today’s defense verdict marks the firstnew individual smoking and health casetried by Philip Morris in five years anywherein the country outside of the Englecases in Florida,” Murray Garnick, AltriaClient Services senior vice president andassociate general counsel, said in a statement.“We believe the jury’s verdict showsthat Philip Morris continues to have strongdefenses to these types of lawsuits.”A call requesting comment from Grill’s attorney,Jerome Block of Levy Phillips Konigsbergin New York City, was not returned.Philip Morris achieved another defenseverdict recently, in a suit brought against itand five other tobacco defendants by 37Missouri hospitals seeking $455 million inreimbursement for treating sick smokers.The plaintiffs, who argued the tobacco companiescreated an “unreasonably dangerous”product, had sought payment forsmokers who had no insurance and did notpay their bills dating back to 1993.– Correy E. Stephenson$1.95 million goes toneighbors of hog farmA jury has returned a $1.95 million verdictfor 12 Missouri residents who broughtnuisance claims against an Iowa-based hogproducer.The verdict came after a two-week trialin Henry County Circuit Court, where thecase was transferred after it was filed in2008.According to the plaintiffs’ lawsuit, Sully,Iowa-based Synergy kept a large numberof hogs at a Barton County facility ownedby a Missouri company, Kenoma. The lawsuitclaimed the operation was “grosslymismanaged” and that “millions of gallons”of hog waste had prevented the plaintiffsfrom enjoying everything from family picnicsto stargazing.“Offensive and noxious odors and fliesemanating from defendants’ swine facilitiesand the swine located at those facilitieshave impaired plaintiffs’ ability to use andenjoy their property and have caused substantialdamage to plaintiffs’ quality of life,”attorney Charles Speer, of the Speer LawFirm in Kansas City, wrote in the suit.Speer provided information about theverdict but declined further comment. Hisfirm has won several similar cases, includingan $11 million verdict last year in JacksonCounty Circuit Court.The Henry County jury awarded$225,000 each to plaintiffs Zach and DebbieJo McGuire and Darvin and Patricia Bentlage;$325,000 to Gregory Harris; $175,000each to Carol Huber, Dale Huber and KevinHuber; $75,000 each to Walter Howrey andCindy Howrey, and $25,000 each to HelenManka and the estate of her husband,William Manka.The jury, however, did not award anypunitive damages. It also granted defenseverdicts to Paul Stefan, a landowner involvedin Kenoma. Synergy contracts withlocal farmers to house and feed its hogs.Kenoma, which can hold about 2,400hogs, was formed in 2007 and occupiesabout 30 acres in Barton County. The projecthas been controversial since it beganand sparked a lawsuit from township officialswho said the operation violated localzoning ordinances. The MissouriCourt of Appeals ruled in 2009 that thetownship didn’t have authority to regulatethe operation.The verdict came less than a week afterGov. Jay Nixon vetoed a bill that would havelimited damages in nuisance suits involvingagriculture and animal production.A message left with Dan Cross, Synergy’sgeneral manager, was not returned by presstime.Small firm wins $4.5 millionverdict for missed infectionBy Sylvia HsiehStaff writerThe last thing on Lynda French’smind when she went in forchemotherapy for breast cancerwas her colon.But after her cancer treatment, a severeform of colitis required that shehave her entire colon removed and, 14surgeries later, changed her daily habitsfor the rest of her life.A jury awarded her $4.5 million indamages after she sued the oncologistand clinic, Cancer Care Associates, claimingthat they should have retested herfor an existing colon infection before theytreated her with chemotherapy.Winning attorney Glendell Nix, thelead plaintiff’s counsel, said the key tothe case was breaking the story downinto a few basic principles for the jury.“We stuck to our case, which was simple– they should have retested and notstarted the chemotherapy without confirmingthe infection,” Nix said.Eldon McAfee, an attorney with Beving,Swanson & Forrest in Des Moines, Iowa,who represented the company at trial, saidAT-A-GLANCE✦ The oncologist testified at trialthat he never told the plaintiffshe needed to be retested forthe infection and that shemust have been mistaken.✦ The diary the plaintiff used tokeep track of her medicaltreatments referenced the visitwhere the oncologist told herto be retested for the infectionbefore chemotherapy.Three women and a diaryIn 2006, after being diagnosed withbreast cancer, French had surgery to removecancer in a lymph node, followedby a mastectomy. After the surgeries, thesurgeon prescribed an antibiotic.Within days, she went to the emergencyroom with diarrhea and was diagnosedwith antibiotic-induced colitis, and gave astool sample to confirm the diagnosisthrough a test. (The plaintiff settled withthe surgeon who prescribed the antibioticsfor a confidential amount prior to trial.)The next day, French saw her oncologist,who had the ER report but not thelab test results.According to French, her oncologisttold her she would need to be retested forthe infection Clostridium difficile, or C-diff,before her chemotherapy treatment wasscheduled to begin in nine days.The oncologist then went out of townwithout providing notes to the chemotherapynurse about retesting French for C-diff,and she reported for chemotherapy asplanned.“Once the chemotherapy was given,that’s when the infection exploded,” becauseof the cancer treatment’s weakeningof white blood cells that fight off infection,said Nix.The defendants argued and the oncologisttestified at trial that he nevertold French she needed to be retested forthe infection and that she must havebeen mistaken.But French’s sister and former sisterin-lawsat in on French’s visit with the oncologistand testified that they also heardhim say she must get retested before herchemo treatment.If that wasn’t persuasive enough, thethree women kept a diary to keepstraight all of French’s many medical visitsand treatments, and the journal containednotes that referenced the visitwhere the oncologist told French to beretested for the infection before beginningchemotherapy.Nix, who makes a practice of videotapingdepositions, cued up the play buttonseveral times at trial to show inconsistenciesin the testimony of opposingwitnesses.In one example, Nix asked the defense’sinfectious disease expert if the ImmodiumFrench was given on her firstday of chemotherapy was contraindicatedfor a person suffering from C-diff.On the stand, the expert began to hemand haw, Nix recalled.“Then I put on his video deposition atthe point where I was asking the samequestion, ‘Is Immodium contraindicatedfor a person with C-diff,’ and he answeredprecisely, ‘Yes, it is,’” Nix said.Defense attorney Jennifer R. Annis,who represented both defendants at trial,did not return a call seeking comment.‘Rules of the road’The biggest challenge for Nix duringthe six-day trial was keeping it simple forthe jury.He resisted getting tangled up in the defense’sarguments over whether his clientdid in fact have C-diff, whether her symptomsof diarrhea were severe enough or“We stuck to our case,which was simple –they should have retestedand not started thechemotherapy withoutconfirming the infection.”– Glendell NixSynergy was evaluating the case and hadnot made a decision on an appeal.– Scott LauckWinning attorney Glendell Nix.whether her infection was cured on the dayof chemotherapy but recurred later on.“Defendants try to make cases that aresimple complicated to create ambiguity,”he said.“I’m a firm believer in David Ball’s theorythat a trial is what you make a trialabout.” (David Ball is a trial consultantwho has written several books on trialtechniques for lawyers.)Instead, Nix pounded at three keyideas that he called “rules of the road” –a technique he uses in every trial.The three rules he spelled out for thejury in this case were that doctors shouldput patient safety first, never give medicationthat is contraindicated and communicatewith other health care providers.He asked each expert whether theyagreed with the three rules and got allof them, including the defense experts,to agree.To further illustrate his rules of theroad and put the jurors in the driver’sseat, he produced a large graphicshowing each of the warning signs relatedto his client’s infection, and nextto each warning description was a yellow“yield” sign. At the end of the manyyield signs was a stop sign to illustratethat the defendants should have retestedfor the infection.Another graphic Nix used to simplifythe case was a timeline of events colorcodedfor each doctor his client visited.“Every visit with one doctor was ina black box, visits with another doctorwere in a red box [and] the C-diff testswere in a yellow box, so you could reallysee the one C-diff test missing [beforethe chemotherapy treatment],”Nix said.In closing arguments, Nix explainedthat besides his client’s medical expensesof approximately $1.3 million, she mustgo through a process of sucking the wastefrom her body four or five times a day.If you added all the time up, it wouldamount to 36,000 hours over her lifetime,Nix told the jury.In contrast, the defense attorney suggestedthat Nix’s rules of the road werenot legal standards and told the jury thatthey won’t see “patient safety first” anywherein the jury instructions.“I was shocked,” said Nix, who hadasked the jury for a total of $7 million.After more than two hours of deliberations,the jury of 7 women and 5 mencame back with a 9-3 verdict for $4.5million.Plaintiff’s attorneys: Glendell Nix andJacob Diesselhorst of The Nix Law Groupin Edmond, Okla.; Douglas Gentile ofDouthit Frets Rouse Gentile & Rhodes inKansas City, Mo.Defense attorneys: Jennifer R. Annisand William A. Fiasco of Atkinson, Haskins,Nellis, Brittingham, Gladd & Carwilein Tulsa, Okla.The case: French v. Geister; May 9,2011; Oklahoma District Court, OklahomaCounty; Judge Barbara Swinton.Questions or comments can be directed to thewriter at: sylvia.hsieh@lawyersusaonline.comA version of this article originally appearedin Lawyers USA’s sister publication,Missouri Lawyers Weekly.

Page 18 / Lawyers USA June 2011 / 2011 LUSA 166JUST FILEDState suing drug makerover diabetes drugSouth Carolina’s Attorney General is suingBritish drug maker GlaxoSmithKlinePLC, claiming the company hid harmfulside effects of the diabetes drug Avandia.Court documents show Attorney GeneralAlan Wilson sued the drug manufacturerlast month in Spartanburg County. The lawsuitsays millions of dollars in state fundingwas spent on prescriptions for Medicaid patientsand state employees.Avandia was once one of Glaxo’s top-sellingproducts, but its popularity has diminishedsince 2007, when its heart risks werefirst publicized.The Food and Drug Administration has issuedrestrictions on Avandia’s use because ofits links to heart attack. Regulators in Europepulled the drug off the market altogether.A spokeswoman for Glaxo says the companystands behind its product and theways in which it was marketed.Former Walmart workerssue over terminationsSix Utah residents are suing Walmart afterbeing fired for disarming thieves.Three of the former workers stopped arobber with a gun at a store in Layton, Utahin January. The other three disarmed awoman who pulled a knife in a Cedar Hills,Utah, store on Dec. 24, 2010.Attorney Lorraine Brown says the lawsuitseeks compensation for the loss of career positions,emotional distress and humiliation.The lawsuit also claims the plaintiffs’ constitutionalright to self-defense was violated.Most of the workers have not been ableto find new employment since being fired.Walmart spokesman Greg Rossiter sayscompany policy prohibits employees fromconfronting people who have a weapon. Itis a common policy among retailers designedto protect workers.Couple sues over uraniumcontamination in waterA Maine couple has filed suit againsttwo companies that sold them a defectiveuranium filtration system for theirhome.The suits, filed in Cumberland CountySuperior Court in Portland, Maine byTheodore and Stacey Sawyer of Naples,Maine, allege that Water Treatment Equipment,Inc.’s employee falsified a water testresult for uranium. The result stated thatit was satisfactory and safe to drink whenin fact the uranium levels were seventimesthe legal limit.As a result, the Sawyers drank contaminatedwater for over a year and havesuffered from severe anxiety and fear ofserious illness.According to the plaintiffs’ attorney,Jeffrey D. Talbert, his clients purchaseda Culligan Good Water Machine reverseosmosis system from Water Treatment inApril 2008. The company informed themthat the system would successfully treatthe uranium contamination in their homedrinking water. When quality testingshowed that the system was not working,a company employee falsified the results.The plaintiffs did not discover thefraud until August 2009 while preparingto put their house on the market.The plaintiffs are seeking damages foremotional distress, diminution in the valueof their home and the cost of medicalmonitoring.The suits allege violations of Maine’sUnfair Trade Practices Act, fraud, negligentand intentional infliction of emotionaldistress, breach of contract andbreach of warranty, among others.– Tony OgdenSuit alleges company OK’dharassment, discriminationThree women have sued an Omaha,Neb. delivery company, saying the company’sowner sexually harassed employeesand discriminated against a companyexecutive by paying her less than men insimilar positions.All three of the women accuse Jacob Hillwick,owner and president of Hotshot Deliveries,of acts that made their job conditionsintolerable and say he was directly responsiblefor their departure – and in onecase, firing – from the company.Angie Friesen and Noelle Mason say in suitsthat Hillwick sexually harassed them. Formercompany vice president Beth Barry accusesthe company of paying three male managersmore than her for similar work. Her lawsuitsays that when she complained, Hillwickmade her working conditions intolerable.Lawyers’ group suesBank of AmericaThe Maine Trial Lawyers Association issuing Bank of America, claiming that a formeremployee who is charged with embezzling$166,000 from the group shouldnot have been allowed to set up onlinebanking or cash checks made out to her.In a suit filed in Kennebec County SuperiorCourt, the association says former administrativeassistant Bettysue Higgins ofGardiner, Maine, was not authorized to establishonline banking accounts, which thegroup says allowed her to cover up her allegedthefts from 2006 to 2010.North Carolina-based Bank of Americadenies the allegations and maintains the associationitself is at fault.Higgins was charged with theft and forgeryin February, and the association recentlywon a $170,000 civil judgment againsther.Former parks directorfiles suit over firingFormer Charlestown, R.I. parks andrecreation director Lisa DiBello has announcedplans to sue the town over her firinglast year.DiBello, who filed a discrimination claimwith the Commission for Human Rights inMarch, alleges that her termination was retaliationfor her role in a sexual harassmentinvestigation at Town Hall in 2006.Her attorney, Robert Savage, tells theWesterly Sun that he plans to ask the humanrights commission for the right to sue thetown in state, rather than federal court. Hesays that’s because there are no limits onthe damages that a judge can award underthe state’s Fair Employment Practices Act.Former inmates suecorrections departmentTwo former inmates who claim theywere forced to engage in sex with employeesat a Topeka, Kan. prison have filed a federallawsuit against the state Departmentof Corrections.The Topeka Correctional Facility employeesnamed in the lawsuit were dismissedby the Kansas Department of Correctionsafter evidence of misconduct surfaced.Both were prosecuted in ShawneeCounty District Court and found guilty ofhaving unlawful sexual relations with atleast one female inmate at the prison.John Kurtz, a Kansas City, Kan. lawyer representingformer inmates Tracy Keith andRebecca Fleetwood, declined to comment.Bar workers file sexharassment complaintTen women who are current and formeremployees of a Tilted Kilt sports bar inChicago have filed a federal sexual harassmentcomplaint with the EEOC against amanager.Tilted Kilt is a Celtic-themed restaurantthat features waitresses in short kilts andmatching plaid bras.The women claim a manager made sexuallyexplicit remarks, grabbed employeesand used a straw to shoot water down thewomen’s outfits.Attorney Mark Roth, who is representingthe women, says corporate and local managersknew about the behavior and didnothing. He says the complaint is a first steptoward filing a federal lawsuit.Mom files lawsuitin child suicideThe mother of a teenager who killed himselflast year during a rash of child suicideson the Fort Peck Indian Reservation hasfiled a lawsuit against the school district©iStockphoto.com/Sawayasu Tsujiand the state of Montana.Roxanne Gourneau, a judge in FortPeck’s tribal family court, claims school officialswere negligent and are responsiblefor the death of her 17-year-old son, Dalton.Dalton Gourneau’s death in Novemberfollowed the suicides of five middle schoolstudents and 20 suicide attempts on thereservation. Tribal officials declared anemergency on the reservation and federalhealth officials were sent in to providecounseling.In her lawsuit filed in state court, RoxanneGourneau says the school districtand the state were negligent and did notproperly train school staff to handle crisissituations.So far, no other parents or families havefiled suit.Fire victims sue manaccused of starting wildfireTwo victims who lost their home in a wildfireare suing the man accused of starting theblaze west of Fort Collins, Colo. last April.Curt Busby and Kelly O’Donnell say fourthdegreearson suspect Thomas Austin Howiewas negligent in starting a slash pile on awindy day without a burn permit.Howie was a groundskeeper at the northernColorado property co-owned by threecurrent and former National Football Leagueplayers with connections to Fort Collins, aswell as Howie’s father Kenneth, a local dentist.All are named in the lawsuit.The fire burned about 2,940 acres and atleast 13 homes.

2011 LUSA 167 / June 2011 Lawyers USA / Page 19BILLS, RULES &REGSDOL expands whistleblowerprotections under SOXThe Administrative Review Board of theU.S. Department of Labor has issued a rulingsignificantly broadening the scope ofwhat constitutes protected activity underthe whistleblower protection provisions ofthe Sarbanes-Oxley Act of 2002.In the decision, the ARB also ruled thatthe so-called “Twiqbal” heightened pleadingstandard established by the U.S.Supreme Court in the cases Bell AtlanticCorp. v. Twombly and Ashcroft v. Iqbal doesnot apply to SOX whistleblower claims filedwith the Occupational Safety and HealthAdministration.The claimants in the case Sylvester v.Parexel International LLC (ARB No. 07-123)filed a complaint with OSHA alleging thatParexel violated SOX by firing each of themin retaliation for engaging in SOX-protectedactivities. An administrative law judgegranted Parexel’s motion to dismiss, rulingthat the OSHA complaints did not establishsubject matter jurisdiction under SOX becausethose complaints failed to allege activityprotected by §806, the employee protectionprovision of SOX.In reversing the ALJ, the ARB’s en bancruling said that the Twiqbal pleading standarddoes not apply to SOX whistleblowerclaims initiated with OSHA.The rulings also held that §806 doesn’trequire the protected activity in theclaimant’s complaint to describe an actualviolation of the law.“A whistleblower complaint concerninga violation about to be committed is protectedas long as the employee reasonablybelieves that the violation is likely to happen,”the ARB ruled. “Such a belief must begrounded in facts known to the employee,but the employee need not wait until a lawhas actually been broken to safely registerhis or her concern.”The ruling came down the same day theSecurities Exchange Commission issued itsfinal rules on whistleblower bounty awards.Studies spur FDA review ofYaz, other contraceptivesThe Food and Drug Administration is conductinga safety review of birth control pillsthat contain drospirenone,such as Yaz, Yasmin, Beyazand Ocella, after recentstudies linked the drugsto a higher incidence ofblood clots.While all birth controlpills pose a risk of bloodclots, two recent studiesfound that drospirenone,the progestin componentin the newergeneration contraceptivepills, carriesGuidelines released forcourtroom camera pilot programThe U.S. Judicial Conference has releasedguidelines for its pilot programdesigned to evaluate the effects of videocameras in courtroomsand the publicationof video recordings ofcourt proceedings.Under the guidelines,presiding judgesmust approve videorecording,©iStockphoto.com/Ariusz Nawrockia two to three times greater risk of blood clotsthan previous types, which contain an olderprogestin ingredient called levonorgestrel.Information from previous studies thatfound a link between drospirenone and anincreased risk of blood clots is already includedin the “Warnings and Precautions”section of current labels for drospirenonecontainingbirth control pills.But the FDA commissioned an additionallarge study exploring the association ofblood clots with hormonal contraception.Results of that study are currently being finalizedand reviewed, the agency said.Meanwhile, after review of all of the availabledata, the European Medicines Agency(EMA) announced on May 27 that it is updatingthe product information on oral contraceptivescontaining drospirenone andethinyl estradiol to include informationabout the risk of venous thromboembolism,or blood clots that form in a deepvein. Such clots, while a rare side effect ofbirth control pills, can break loose from thevein and move through the body to thelung, causing a pulmonary embolism. Thiscan lead to death.Hundreds of lawsuits are pending acrossthe country alleging that Yaz, Yasmin andOcella cause blood clots, as well as heartattacks, strokes and gallbladder failure.DOJ backs retroactivereduction of crack sentencesThe Obama administration is urging theU.S. Sentencing Commission to revise itsguidelines to retroactively apply a 2010 lawcutting the disparity between sentencesfor crack cocaine and powder cocaineoffenses.If adopted, the proposalwould allow more than 5,000 inmatesimprisoned for crack offensesto seek an earlier release.Bills, Rules & Regsis written byKimberly Atkins.You can contact herat kimberly.atkins@lawyersusaonline.com.Earlier this year, the commission amendedfederal sentencing guidelines coveringsentences for crack cocaine to comply withthe Fair Sentencing Act, which was signedinto law last year and cut the disparity betweenfederal sentences for crack cocaineand powder cocaine offenses.Attorney General Eric Holder praised thelaw, which narrowed the crack-powder sentencingdisparity from 100 to 1 to about 18to 1, but added: “I believe – and the Administration’sviewpoint is that – we havemore to do.”“Achieving [the law’s] central goals ofpromoting public safety and public trust –and ensuring a fair and effective criminaljustice system – requires the retroactiveapplication of its guideline amendment,”Holder said.Holder acknowledged the damage drugsincluding crack do to American communities,and pointed out that dangerous offendersas well as recidivists would not beeligible for retroactively reduced sentencesunder the Administration’s proposal.“The Administration’s suggested approachto retroactivity of the amendmentrecognizes Congressional intent in the FairSentencing Act to differentiate dangerousand violent drug offenders and ensure thattheir sentences are no less than those originallyset,” Holder said. “However, we believethat the imprisonment terms of thosesentenced pursuant to the old statutorydisparity – who are not considered dangerousdrug offenders – should be alleviatedto the extent possible to reflect thenew law.”Some lawmakers criticized the proposal.House Judiciary Chairman Rep. LamarSmith, R-Texas, said in a statement that hewas “disappointed by the Obama Administration’sposition supporting the release ofdangerous drug offenders,” and that Congresshad no intention of applying the lawretroactively.“It shows that they are more concernedwith the wellbeing of criminals than withthe safety of our communities,” Smithsaid. “This sends a dangerous message tocriminals and would-be drug offendersthat Congress doesn’t take drug crimesseriously.”But Holder said that recent studies followingthe commission’s 2008 decision toapply retroactively an amendment that reducedthe base offense level for crack byparties must consent to the recording ofeach proceeding in a case, and therecordings will not be simulcast or immediatelymade public and available tothe media. The recordings will be madepublicly available on www.uscourts.govand on local participating court websitesat the court’s discretion.The guidelines also give judges the discretionto stop a recording of a proceedingif necessary to protect the rights ofthe parties and witnesses and to preservethe dignity of the court.The videotaping of criminalproceedings, jurors and prospectivejurors and jury voir dire will remainprohibited.The pilot program will begin in 14 federaltrial courts selected by the Committeeon Court Administration and CaseManagement of the Judicial Conferencein consultation with the Judiciary’sresearch arm, the Federal JudicialCenter.The participating districtcourts, which all volunteered toparticipate in the 3-year experimentalprogram, are: the MiddleDistrict of Alabama; the Northern Districtof California; the Southern Districtof Florida; the District of Guam; theNorthern District of Illinois; the SouthernDistrict of Iowa; the District ofKansas; the District of Massachusetts;the Eastern District of Missouri; the Districtof Nebraska; the Northern Districtof Ohio; the Southern District of Ohio;the Western District of Tennessee; andthe Western District of Washington.two levels – known as the “crack minustwo” amendment – actually lowered therate of recidivism.He called the decision to seek retroactiveapplication of the Fair Sentencing Acta “deeply personal” one.“While serving on the bench, here inWashington, D.C., in the late ‘80’s and early‘90’s, I saw the devastating effects of illegaldrugs on families, communities and individuallives,” Holder said. “[But] I alsosaw that our federal crack sentencing laws[were] not perceived as fair and our law enforcementefforts suffered as a result.”FDA sets new limitson diabetes drugThe Food and Drug Administration hasset new restrictions on the distribution anduse of controversial diabetes drugs Avandia,Avandamet and Avandaryl, which havebeen linked to a higher risk of heart attacks.Under the new rules, the medicationswill not be available through retail pharmaciesafter Nov. 18. Health care providersand patients must enroll in a special programin order to prescribe and receivethese drugs under the rules. Patients enrolledin the Avandia-Rosiglitazone MedicinesAccess Program will receive theirmedicine by mail order through speciallycertified pharmacies participating in theprogram.In September 2010, the FDA imposedtight restrictions on the drug, requiring itsmanufacturer, GlaxoSmithKline, to make itavailable to new patients only if they are unableto control their Type 2 diabetes withother drugs and if they are made aware ofthe serious potential heart risks associatedwith the drug. Patients who were takingthe drug at the time were allowed to continueto do so if they chose.In February of this year, the company announcedthat it would put a new warninglabel, which would provide informationabout heightened FDA restrictions on Avandiaand warn of potential heart failurelinked to the drug.Since then, thousands of suits involvingAvandia and related diabetes drugs havebeen settled, and the company has reportedlyset aside more than $6 billion for futuresettlements.

Page 20 / Lawyers USA June 2011 / 2011 LUSA 168TOP DECISIONSMore coverage of recentdecisions can be found atwww.lawyersusaonline.comATTORNEYSCourt can dismiss suit overattorney’s contemptIt was not an abuse of discretion for a trialcourt to dismiss the plaintiffs’ complaintbased on the willful contempt of their attorneyin failing to find co-counsel, theNorth Carolina Court of Appeals has ruled.The plaintiffs filed a medical negligencecomplaint. Prior to trial, the North CarolinaState Bar issued a disciplinary order thatrequired the plaintiffs’ attorney to have amember of the Bar serve as her law practicementor.She associated with co-counsel for thecase, but due to differing opinions over trialstrategy, the co-counsel withdrew.The trial court judge agreed to continuethe trial and ordered the plaintiffs’ attorneyto appear with co-counsel to satisfy the Bardisciplinary order.When she failed to do so, the defensesought sanctions. The trial court found theplaintiffs’ attorney in contempt and dismissedthe suit.The plaintiffs appealed, arguing that thedismissal of their suit was an extreme measureand that their attorney had made diligentefforts to secure co-counsel.But the court said the trial court fulfilledthe statutory requirements before imposing“the most severe sanction” available.“The trial court made a finding of fact in[its] order that [it] had considered less drasticalternatives to dismissal. The order wenton to further state that, ‘[b]ased upon theforegoing findings of fact and conclusion oflaw, and after consideration of less drasticalternatives to dismissal, the [c]ourt herebyorders that this cased be dismissed.’Here, the ultimate sanction of dismissal wasimposed primarily due to a direct violationof a court order, which is permitted under[North Carolina law]. We thus conclude thatthe imposition of the most severe sanctionin this case did not constitute an abuse ofthe trial court’s discretion,” the court said.North Carolina Court of Appeals. Ray v.Greer, No. COA10-767. June 7, 2011. LawyersUSA No. 993-2975. You can link to the full textof this opinion by going to www.lawyersusaonline.comand searching the LawyersUSA website.Limited attorney fees okayin some frivolous casesBUSINESSExpedia can’t be suedover e-mailed receiptExpedia didn’t violatefederal consumer protectionlaw when it e-maileda receipt that included acustomer’s credit card information,the 9th Circuithas ruled in affirming adismissal.The Fair and AccurateCredit Transactions Act(FACTA) prohibits a businessfrom issuing “electronicallyprinted” receiptscontaining more than thelast five digits of a customer’scredit card numberor the card’s expirationdate.In this case, the plaintiffmade travel arrangementsthrough Expedia and thecompany e-mailed a receipt forthe transaction to the plaintiff.The plaintiff sued, alleging that Expediaviolated the Act because the electronicreceipt he received in his e-mailincluded the expiration date for hiscredit card.But the court decided that the Actdoes not apply to e-mailed receipts.“The text of FACTA simply leavesno room to doubt that ‘electronicallyprinted’ receipts include only receiptsimpressed onto a tangible medium byelectronic devices at the point of theIn cases involving frivolous and non-frivolousclaims, a court may grant reasonablefees to the defendant, but only for coststhat would not have been incurred but-forthe frivolous claims, the U.S. SupremeCourt has ruled.The case stemmed from a local electionfor town police chief. The incumbent candidateemployed a host of tactics to dissuadea challenger from entering the race,including threatening to expose embellishedstories about the challenger andbribing an accused criminal to claim thechallenger used a racial slur.The challenger won the election, and theincumbent was investigated by the FBI, andcharged with and convicted of extortion.The new police chief then sued his predecessor,asserting constitutional claims, includingviolation of his civil rights under§1983 and violation of his First Amendmentrights “to seek public office,” to “be free ofextortion” and “not to be slandered.”The complaint also alleged several statetort claims.A magistrate judge dismissed the federalclaims and the previous chief moved forattorney fees under §1988, which allowsprevailing parties to recover attorney feesfor frivolous claims.Another magistrate judge awarded himhis full attorney fees, holding that the remainingstate law claims were so interrelatedto the constitutional claims that thenew chief’s attorney’s work on them couldnot be separated out.The 5th Circuit concluded that “a defendantdoes not have to prevail over an entiresuit in order to recover attorney feesfor frivolous §1983 claims,” but also heldthat “a defendant is only entitled to attorney’sfees for work which can be distinctlytraced to a plaintiff’s frivolous claims.”The Supreme Court agreed to take up thecase.The Court vacated and remanded the 5thCircuit, imposing a “but-for” standard forawarding attorney fees.Acknowledging that “in the real world,litigation is … complex, involving multipleclaims for relief that implicate a mix of legaltheories and have different merits,” JusticeElena Kagan, writing for a unanimousCourt, wrote that “trial courts need not,and indeed should not, become green-eyeshadeaccountants. … [T]he trial courtmust determine whether the fees requestedwould not have accrued but for the frivolousclaim.”U.S. Supreme Court. Fox v. Vice, No. 10–114.June 6, 2011. Lawyers USA No. 993-2967.Youcan link to the full text of this opinion by goingto www.lawyersusaonline.com and searchingthe Lawyers USA website.BANKRUPTCYFirm liable for violating stay©iStockphoto.comsale or transaction, not receipts that areelectronically transmitted to an e-mailaccount or displayed on a computerscreen,” the court said.It noted a similar decision from the7th Circuit.U.S. Court of Appeals, 9th Circuit. Simonoffv. Expedia, No. 10-35595. May 24,2011. Lawyers USA No. 993-2933. You canlink to the full text of this opinion by goingto www.lawyersusaonline.comand searching the Lawyers USA website.A law firm and its client are liable for willfullyviolating the automatic stay in a bankruptcycase, the 1st Circuit has ruled in reversingjudgment.The debtors borrowed $25,000 securedby a mortgage on their property. However,the mortgage deed was never recorded,leaving the lender an unsecured creditor.The lender hired the law firm to perfect itslien against the property. After the debtorsfiled for bankruptcy, the firm filed the deedin order to perfect its client’s interest.The debtors filed an adversary complaintagainst the lender and the firm, allegingthat the defendants willfully violatedthe automatic stay in their bankruptcycase by taking actions to perfect the lien.The firm argued that it wasn’t liable becauseit filed the deed before receiving noticefrom its client of the debtors’ bankruptcycase.But the court concluded that the law firmand its client were jointly liable.“It seems to us that [the lender] ought tohave informed [the firm] when it learned ofthe bankruptcy petition, and that [the firm]ought to have done more than follow [thelender’s] word alone. Despite their protestations,[the lender’s and firm’s] acts arenot wholly separable from one another, andin the end there is no question that each isresponsible for a willful violation as a matterof law,” the court said.It remanded the matter for a hearing ondamages.U.S. Court of Appeals, 1st Circuit. Laboy v.Doral Mortgage Corp., No. 09-9022. May 27,2011. Lawyers USA No. 993-2950. You canlink to the full text of this opinion by going towww.lawyersusaonline.com and searchingthe Lawyers USA website.Employer can deny jobbecause of bankruptcyAn employer didn’t violate federal lawby rescinding a job offer after learning thatthe applicant had recently exited bankruptcy,the 11th Circuit has ruled in affirmingjudgment.Section 525(b) of the Bankruptcy Codeprovides that a private employer may not“terminate the employment of, or discriminatewith respect to employment against”an individual on the ground that they areor have been in bankruptcy.In this case, the plaintiff quit a supervisoryposition at Starbucks after allegedlybeing offered a job to manage a restaurantfor the defendant.The defendant rescinded the offer beforethe plaintiff could start his new job. A routinebackground check disclosed that theplaintiff had recently obtained a dischargeof debts after filing for bankruptcy. The defendantallegedly rescinded the job offer becauseof a company policy not to hire thosewho have gone through bankruptcy.The plaintiff sued, claiming that the defendantviolated the anti-discriminationprovisions of §525(b).But the court held that §525(b) does notprohibit a private employer from basing ahiring decision on bankruptcy. It observedthat, while §525(a) expressly prohibits agovernment employer from refusing to hiresomeone based on a bankruptcy filing,§525(b) does not impose a similar obligationon private employers.The court explained that “the SupremeCourt and this Court have often held,‘[w]here Congress includes particular languagein one section of a statute but omitsit in another section of the same Act, it isgenerally presumed that Congress acts intentionallyand purposely in the disparateinclusion or exclusion.’ …“Had Congress wanted to cover a privateemployer’s hiring policies and practices in§525(b), it could have done so the sameway it covered a governmental unit’s hiringpolicies and practices in § 525(a). That Congressdid not speaks loudly and clearly.”The court noted similar decisions fromthe 3rd and 5th Circuits.U.S. Court of Appeals, 11th Circuit. Myersv. Toojay’s Management Corp., No. 10-10774.Lawyers USA No. 993-2913. You can link tothe full text of this opinion by going towww.lawyersusaonline.com and searchingthe Lawyers USA website.BUSINESSJustices rule on fraudclass certificationSecurities fraud plaintiffs need not proveloss causation in order to obtain class certification,the U.S. Supreme Court has ruled.Shareholders in the case sued Halliburtonand its executives under §§10(b) and20(a) of the Securities Exchange Act and SecuritiesExchange Commission Rule 10(b)-5, alleging that they made false statementsabout its asbestos liability and other aspectsof the business.The shareholders sought class actionstatus under a fraud-on-the-market theory,arguing that their common reliance on thefalse and misleading statements predominatedover their individual issues.The district court denied class certification,concluding that the plaintiffs were notentitled to the fraud-on-the-market presumptionof reliance because they were unableto show at the certification stage thatthe allegedly false statements actually inflatedthe company’s stock.The 5th Circuit agreed and affirmed. TheU.S. Supreme Court agreed to hear the case.In a unanimous decision, the Court reversedand remanded, holding that proofof loss causation was not needed at theclass certification stage.“We have never before mentioned losscausation as a precondition for invoking Basic[v. Levinson]’s rebuttable presumptionof reliance,” Chief Justice John G. Robertswrote in the opinion. “The term ‘loss causation’does not even appear in our Basic

2011 LUSA 169 / June 2011 Lawyers USA / Page 21TOP DECISIONSopinion. And for good reason: Loss causationaddresses a matter different fromwhether an investor relied on a misrepresentation,presumptively or otherwise,when buying or selling a stock.”U.S. Supreme Court. Erica P. John Fund v.Halliburton, No. 09–1403. June 6, 2011.Lawyers USA No. 993-2966.CIVIL PRACTICEFOIA disclosures may barFalse Claims Act suitA federal agency’s response to a Freedomof Information Act request is a “report”within the meaning of the False Claims Act’spublic disclosure bar, the U.S. SupremeCourt has ruled in a 5-3 decision.The ruling reverses a decision from the2nd Circuit. (See “Justices decide to take upFalse Claims Act case,” Lawyers USA, Sept.29, 2010. Search terms for Lawyers USA’swebsite: Schindler and Kirk.)The plaintiff filed a False Claims Act suitagainst a federal contractor, alleging thatthe company failed to meet a statutoryobligation to report the number of veteransit employed to the U.S. Departmentof Labor.The contractor argued that the lawsuitwas precluded by the Act’s public disclosurebar because it was based in large parton information the plaintiff obtained aftersubmitting requests to the Department ofLabor under the Freedom of InformationAct (FOIA).The Court agreed that the written responsesobtained by the plaintiff as the resultof his FOIA request fell within the plainmeaning of a “report” under the FalseClaims Act’s public disclosure bar.“The other sources of public disclosurein §3730(e)(4)(A) [of the False Claims Act],especially ‘news media,’ suggest that thepublic disclosure bar provides ‘a broa[d]sweep.’ The statute also mentions ‘administrativehearings’ twice, reflecting intent toavoid underinclusiveness even at the riskof redundancy,” the Court said.It remanded the matter for a determinationof whether the plaintiff’s lawsuit wasin fact based on the responses to his FOIArequests.Justice Clarence Thomas wrote the majorityopinion. Justice Ruth Bader Ginsburgfiled a dissenting opinion, joined by JusticesStephen Breyer and Sonia Sotomayor. JusticeElena Kagan took no part in the decision.U.S. Supreme Court. Schindler Elevator v.U.S. ex rel. Kirk, No. 10-188. May 16, 2011.Lawyers USA No. 993-2904.Yasmin suit properlyremoved to federal courtA product liability plaintiff couldn’t preventremoval to federal court by joining alocal defendant in an effort to eliminate diversityjurisdiction, the 7th Circuit hasruled in affirming judgment.The plaintiff is an Illinois resident whofiled a product liability suit against Bayerin state court. She alleged that she sufferedinjuries as a result of taking Yazmin, a prescriptionoral contraceptive manufacturedby a German affiliate of Bayer.In an apparent effort to avoid removal tofederal court, the plaintiff joined as a defendantthe local pharmacy where she filledher prescription.Bayer argued that the pharmacy hadbeen fraudulently joined as a defendantand, therefore, diversity jurisdiction still existedfor the purpose of removing the caseto federal court.The 7th Circuit agreed that removal inthis case was proper, explaining that aplaintiff can defeat the fraudulent joinderexception to the requirement of completediversity of citizenship “by proving that hisclaim against the nondiverse defendant isCIVIL PRACTICEState needn’t pass enablinglegislation for private TCPA suitA state court lawsuit over unsolicitedfaxes can go forward under the federalTelephone Consumer ProtectionAct even though the state legislaturehadn’t passed enabling legislation, theIllinois Supreme Court has ruled.A company that allegedly receivedmultiple unsolicitedfax advertisements filed suitagainst the sender,a travel agency, inIllinois statecourt,claimingthe faxesviolatedthe federal Act.That law creates a federal privatecause of action but confers exclusivejurisdiction on state courts. It providesthat a claim may be brought “ifotherwise permitted by the laws orrules of court of a state.”The defendants moved to dismiss,arguing that private TCPA claims arenot cognizable in Illinois state courtsbecause the state legislature had failedto enact enabling legislation.Affirming an appellate court, the IllinoisSupreme Court disagreed.Adopting the “acknowledgement”approach, the court said the TCPA’s language“merely acknowledges thatstates have the right to structure theirown court system; that neutral statelaws and court rules concerning statecourt jurisdiction and procedure applyto TCPA claims; and that state courtsno weaker than his claim against the diversedefendants.”The court concluded “common-defensedoctrine” did not apply here because theplaintiff alleged that the Bayer defendants,unlike the pharmacy, concealed vital informationabout Yazmin’s side effects.“The learned-intermediary doctrine thatshields [the pharmacy] does not shield [theBayer defendants], and thus is not a defensecommon both to the diverse defendantsand to the nondiverse one,” the court said.U.S. Court of Appeals, 7th Circuit. Waltonv. Bayer Corp., No. 10-3462. May 23, 2011.Lawyers USA No. 993-2927. You can link tothe full text of this opinion by going towww.lawyersusaonline.com and searchingthe Lawyers USA website.CIVIL RIGHTSJustices to decide liabilityof private prison employeesThe U.S. Supreme Court will decidewhether a federal prison inmate has an impliedcause of action for a violation of his constitutionalrights against the employees of aprivate company that operates the facility.The Court will review a decision from the9th Circuit allowing the Bivens claims of aninmate at a federal prison in California. (See“Prison inmate may sue employees of privatefirm,” Lawyers USA, June 9, 2010.Search terms for Lawyers USA’ website: Pollardand GEO.)A private company operated the prisonunder a contract with the government. Theplaintiff alleged that seven employees of theprivate contractor violated his EighthAmendment rights by failing to provide himwith appropriate medical treatment for injuriessuffered in a fall.The defendants argued that a Bivens©iStockphoto.comare not obligated to change their proceduralrules to accommodate TCPAclaims.”This approach – under which stateenabling legislation is not necessary forparties to assert private TCPA claims instate courts – is grounded in the SupremacyClause of the U.S. Constitution,the TCPA’s legislation history andthe plain language of the statute, thecourt said.Only one state – Texas – has foundthat the TCPA did not create an immediatelyenforceable private right of action,it noted.Illinois Supreme Court. Italia Foods v.Sun Tours, Inc., No. 110350. June 3,2011. Lawyers USA No. 993-2963. Youcan link to the full text of this opinion bygoing to www.lawyersusaonline.comand searching the Lawyers USA website.claim cannot be maintained against the employeesof a private company.But the 9th Circuit held that the defendantscould be considered federal agentsacting under color of federal law for the purposeof a Bivens claim.The court said that there was “no principledbasis” to distinguish the activities ofthe private employees in this case from governmentalaction.“[The plaintiff] could seek medical careonly from the [contractor’s] employees andany other private physicians [the contractor]employed. If those employees demonstrateddeliberate indifference to [the plaintiff’s]serious medical needs, the resultingdeprivation was caused, in the sense relevantfor the federal-action inquiry, by thefederal government’s exercise of its powerto punish [the plaintiff] by incarcerationand to deny him a venue independent ofthe federal government to obtain neededmedical care,” the court said.It noted a contrary decision from the 4thCircuit.A decision from the Supreme Court is expectednext term.Minneci v. Pollard, No. 10-1104.Certiorarigranted: May 16, 2011. Ruling below: 629 F.3d. 843 (9th Cir. 2010).School’s random drugtesting is constitutionalA school district’s policy requiring allstudents who participate in extracurricularactivities to consent to random testingfor alcohol and drugs is constitutional, theWyoming Supreme Court has ruled.Based on a survey of its students thatfound a high percentage of drug and alcoholuse, a school district instituted a policyrequiring all students who participate inextracurricular activities to consent to randomtesting for alcohol and drugs.A group of parents and students filed suit,objected to the policy. They argued it violatedstudents’ constitutional right to be freefrom unreasonable search and seizures.But the court disagreed.“[W]e acknowledge that … the WyomingConstitution protects public school studentsfrom unreasonable searches andseizures. In considering whether the testingmandated by the school district’s policyis reasonable under all of the circumstances,we recognize that students, particularlythose who participate in extracurricularactivities, are already subjectto more stringent rules and regulationsthan adults, and so have limited expectationsof privacy in the school setting. …“We find that the school district’s policyadequately preserves the students’personal privacy rights, and appropriatelylimits the degree of invasion into thoserights. We conclude that the school districthas a compelling interest in providingfor the safety and welfare of its students,and that it therefore has a legitimateinterest in deterring drug and alcoholuse among students. On the closestquestion of all, we determine that theschool district showed that its policy requiringrandom, suspicionless drug andalcohol testing for all students who participatein extracurricular activities is rationallyrelated to furthering its interestin deterring drug and alcohol use amongstudents,” the court said.It noted a split of authority among otherstate courts, with similar decisions fromcourts in Indiana, Iowa, New Jersey, Oregonand Texas, and contrary authority fromWashington.Wyoming Supreme Court. Hageman v.Goshen County School District, No. 2011 WY91. June 6, 2011. Lawyers USA No. 993-2974.You can link to the full text of this opinion bygoing to www.lawyersusaonline.com andsearching the Lawyers USA website.CRIMINALCourt: Fleeing police isviolent felony under ACCAThe felony offense of fleeing police, asproscribed by Indiana law, is a violentfelony for purposes of the Armed CareerCriminal Act, the U.S. Supreme Court ruled.The defendant pleaded guilty to being afelon in possession of a firearm under ACCAafter he was arrested for brandishing a gunwhile attempting to rob two people whowere sitting in a parked car outside an Indianapolisliquor store.A pre-sentence report concluded thatSykes was subject to ACCA-based sentencingbecause he had three previous violentfelony convictions.The defendant objected, arguing thatone of his prior convictions – fleeing policein a vehicle – didn’t constitute a violentfelony. The district court rejected his argumentand gave Sykes an enhanced sentenceof 188 months.The 7th Circuit affirmed, agreeing thatSykes’ prior Indiana conviction for fleeinglaw enforcement was a violent felony convictionbecause it involved a serious risk ofphysical injury to others.The U.S. Supreme Court granted certiorari,and in a 6-3 ruling, affirmed.“When a perpetrator defies a law enforcementcommand by fleeing in a car, thedetermination to elude capture makes alack of concern for the safety of propertyand persons of pedestrians and other driversan inherent part of the offense,” JusticeAnthony Kennedy wrote for the majority.“Even if the criminal attempting toelude capture drives without going at fullspeed or going the wrong way, he createsthe possibility that police will, in a legitimateand lawful manner, exceed or almostmatch his speed or use force to bring himContinued on page 22

Page 22 / Lawyers USA June 2011 / 2011 LUSA 170TOP DECISIONSCRIMINALContinued from page 21within their custody.”Justices Antonin Scalia, Ruth Bader Ginsburgand Elena Kagan dissented.U.S. Supreme Court. Sykes v. U.S., No. 09-11311. June 9, 2011. Lawyers USA No. 993-2983.You can link to the full text of this opinion bygoing to www.lawyersusaonline.com andsearching the Lawyers USA website.High Court decidessentencing caseIn determining whether a “serious drugoffense” triggers the Armed Career CriminalAct, courts must consider the a maximumprison term for the offense at the timethe defendant was convicted, even if thesentence was later reduced, the U.S.Supreme Court has ruled.The defendant pleaded guilty to unlawfulpossession of a gun and possession with intentto distribute cocaine. A federal districtcourt determined that he was an armed careercriminal based on his previous convictionsfor “serious drug offenses” and increasedhis sentence by more than four years.The Act defines a “serious drug offense”as an offense under state law involving drugcrimes “for which a maximum term of imprisonmentof ten years or more is prescribedby law.”North Carolina later amended its sentencinglaws to reduce the sentence for oneof the defendant’s triggering prior convictionsto less than 10 years.The district court and the 4th Circuit rejectedthe defendant’s argument – which reliedheavily on the present tense of theword “is” in the wording of the statute – thatin order to qualify as a “serious drug offense”under the Act, the state offense mustcarry a maximum penalty of at least 10years at the time of federal sentencing.The U.S. Supreme Court granted certiorariand affirmed the 4th Circuit.Writing for a unanimous Court, JusticeClarence Thomas said that basing ACCAsentence enhancements on the currentstate penalty for “serious drug offenses”rather than the penalty in place at the timewould lead to “absurd results.”“It cannot be correct that subsequentchanges in state law can erase an earlierconviction for ACCA purposes,” Thomaswrote. “A defendant’s history of criminalactivity – and the culpability and dangerousnessthat such history demonstrates –does not cease to exist when a state reformulatesits criminal statutes in a way thatprevents precise translation of the old convictioninto the new statutes.”U.S. Supreme Court. McNeill v. U.S., No. 09-907. June 6, 2011. Lawyers USA No. 993-2967.You can link to the full text of this opinion bygoing to www.lawyersusaonline.com andsearching the Lawyers USA website.Pretrial motion tolls clockon speedy trial requirementCRIMINALJustices: Higher drug sentencesapply beyond crack casesThe speedy trial clock stops running automaticallyupon the filing of a pretrial motion,even if the motion has no impact onwhen the trial begins, the U.S. SupremeCourt has ruled.The Speedy Trial Act requires that acriminal defendant who pleads not guiltyget a trial within 70 days of arraignment,but excludes periods of “delay resultingfrom any pretrial motion, from the filing ofthe motion through the conclusion of thehearing on, or other prompt disposition of,such motion.”The defendant, Jason Tinklenberg, wasindicted on federal gun and drug chargesafter police found a gun, Sudefed and othermaterials used to make methamphetaminein his camper.Just before trial, which began 287 dayslater, he moved to dismiss based on a violationof the Act’s 70-day requirement.The trial court found that enough daysfell within the Act’s exclusions that only 69days had passed. Tinklenberg was convictedand sentenced to 33 months.On appeal, the 6th Circuit reversed hisconviction, holding that the Act authorizesstopping the clock only when pretrial motions“actually cause a delay, or the expectationof delay, of trial.”The Supreme Court heard oral argumentsin February.The justices concluded that the Act containsno requirement that the filing of a pretrialmotion actually caused, or was expectedto cause, delay of a trial.“The question is whether [the delay] provisionstops the Speedy Trial clock fromrunning automatically upon the filing of apretrial motion irrespective of whether themotion has any impact on when the trialbegins. Unlike the 6th Circuit, we believethe answer to this question is yes,” theCourt said.While it said that the statutory languagealone did not resolve the question, it basedits conclusion on several considerations takentogether, including related subparagraphsof the Act that clarify the meaning, workabilityfor trial courts, and the fact that in the 37years since the Speedy Trial Act was passed,the 6th Circuit’s decision stood alone.U.S. Supreme Court. U.S. v. Tinklenberg, No.09-1498. March 26, 2011. Lawyers USA No. 993-2639. You can link to the full text of this opinionby going to www.lawyersusaonline.comand searching the Lawyers USA website.The term “cocaine base,” as used ina federal law imposing a mandatory 10-year minimum sentence for certaindrug offenses, means not just crack cocaine,but also cocaine in its chemicallybasic form, the U.S. Supreme Courthas ruled.The defendant was charged with sellingdrugs to an undercover police informantwho was seeking crack cocaine.Although the chunky, off-white substancesold was found to contain cocaine,it did not contain sodium bicarbonate,which is used to make crack.The defendant was tried, convictedand sentenced to a 10-year minimumsentence under the law. He appealed,arguing that the 10-year minimum wasmeant only for crack cocaine offenses.The 1st Circuit affirmed, reasoningthat “cocaine base” included, but was notlimited to, crack. The Supreme Court.In a unanimous judgment, the SupremeCourt affirmed.“In short, the term ‘cocaine base’ ismore plausibly read to mean the chemicallybasic form of cocaine than it is crackcocaine,” under the Anti-Drug Abuse Actof 1986, wrote Justice Sonia Sotomayor.The court noted that the conclusioncreates a disparity with the federal SentencingGuidelines.“We recognize that, because the definitionof ‘cocaine base’ … differs fromthe Guidelines definition, certain sentencinganomalies may result,” Sotomayorwrote. “As we have noted in previousopinions, however, such disparitiesare the inevitable result of the dissimilaroperation of the fixed minimumsentences Congress has provided bystatute and the graduated sentencingscheme established by the Guidelines.”Justice Antonin Scalia filed an opinionconcurring in part and concurringin the judgment.U.S. Supreme Court. DePierre v. U.S., No.09-1533. June 9, 2011. Lawyers USA No. 993-2982. You can link to the full text of this opinionby going to www.lawyersusaonline.com and searching the Lawyers USAwebsite.©iStockphoto.com/Dan BannisterCourt to decide if false taxreturn triggers deportationThe U.S. Supreme Court has agreed todecide whether filing a false statement ona tax return is an aggravated felony, renderinga defendant deportable under federalimmigration law.The defendants in the case, a Japanesemarried couple who were permanent residents,pled guilty for filing a false statementon a corporate tax return in violation of 26U.S.C. §7206(1) for the purpose of hiding income.The husband’s plea agreement stipulatedthat he would pay $245,126 as restitutionfor the underpayment of taxes, butneither plea agreement included any admissionof fraud or deceit.The Immigration and NaturalizationService (now the Bureau of Immigrationand Customs Enforcement) issued the defendantsnotices to appear, alleging that theconviction rendered them removable becausethe crime constituted an aggravatedfelony under 8 U.S.C. §1101(a)(43)(M)(i).That law defines “aggravated felony” as “anoffense that (i) involves fraud or deceit inwhich the loss to the victim or victims exceeds$10,000; or (ii) is described in section7201 of Title 26 (relating to tax evasion) inwhich the revenue loss to the Governmentexceeds $10,000.”The immigration judge ordered the defendantsbe deported, and the Board of ImmigrationAppeals (“BIA”) denied the defendants’motion to terminate the proceedingand ordered them removed.The case made several trips to the 9th Circuitand back down to the trial court levelon a series of substantive and proceduralmatters, finally landing back before the 9thCircuit on the issue of whether the defendants’tax crimes constituted “aggravatedfelonies” under 8 U.S.C. § 1101(a)(43)(M)(i).The court held that they did, since theloss to the government was in excess of$10,000. In a short order, the court remandedthe case to the BIA to determinewhether the evidence in the record was sufficientto establish the total loss to the governmentas a result of the wife’s crime.A decision from the Supreme Court is expectednext term.Kawashima v. Holder, No. 10-577. Certiorarigranted May 23, 2011. Ruling below: 615 F.3d1043 (9th Cir. 2010). You can link to the full textof this opinion by going to www.lawyersusaonline.com and searching the LawyersUSA website.Justices rule in case overwarrantless searchEven though police create an exigencyby knocking on a door, the exigent circumstancesrule still allows a warrantlesssearch so long as the police conduct isreasonable, the U.S. Supreme Court hasruled.The case stems from police pursuit ofdrug trafficker who sold cocaine to an undercoverinformant.When police followed the suspect intoan apartment building, they heard an apartmentdoor slam and then smelled burningmarijuana from one of the apartments. Theofficers knocked on the door, and thenheard noises that led them to believe thatevidence was being destroyed.The officers made a forced entry into theapartment and found the defendant andtwo others smoking marijuana and in possessionof cocaine, cash and drug paraphernalia.The original suspect was laterfound in another apartment. The defendantwas not connected to the original suspect.The defendant moved to suppress all evidencefound inside the apartment he occupied,arguing that his arrest and thesearch of his apartment were illegal.The trial court denied the motion, reasoningthat the smell of marijuana gave theofficers probable cause. It also found thatthe lack of response to the knock on thedoor and the sound of movement inside theapartment created the requisite exigent circumstancesto justify a warrantless entry.The Kentucky Court of Appeals affirmed.But the Kentucky Supreme Court reversed,ruling that the exigent circumstancesexception to the warrant requirement did notapply because the officers created the exigencyby knocking on the door.The U.S. Supreme Court agreed to hearthe case and reversed.While police cannot unreasonably createan exigent circumstance for the purpose ofobtaining warrantless entry, “[w]here, ashere, the police did not create the exigencyby engaging or threatening to engage in conductthat violates the Fourth Amendment,warrantless entry to prevent the destructionof evidence is reasonable and thus allowed,”wrote Justice Samuel Alito in the 8-1 ruling.Justice Ruth Bader Ginsburg dissented.U.S. Supreme Court. Kentucky v. King, No.09-1272. May 16, 2011. Lawyers USA No. 993-2905. You can link to the full text of this opinionby going to www.lawyersusaonline.comand searching the Lawyers USA website.EMPLOYMENTEmployee can sue forwrongful dischargeAn employee can file a common-law tortclaim for wrongful discharge in violation ofpublic policy where he suffered retaliatoryemployment action after he was injured on

2011 LUSA 171 / June 2011 Lawyers USA / Page 23TOP DECISIONSthe job but before he filed a workers’ compensationclaim, the Ohio Supreme Courthas ruled.While dissembling a chop saw, the employeeinjured his back. He reported his injuryto the company president, who firedhim less than one hour later.The employee then filed suit, allegingwrongful retaliation. He argued that he wasterminated to preclude him from filing aworkers’ compensation claim that woulddrive up the employer’s premiums.The employer moved to dismiss, arguingthat the employee wasn’t protected by thestatute because he hadn’t filed a claim orinstituted, pursued or testified in any proceedingsprior to his termination.But the court disagreed.“We find that the [legislature] did not intendto leave a gap in protection duringwhich time employers are permitted to retaliateagainst employees who might pursueworkers’ compensation benefits. The alternativeinterpretation – that the legislatureintentionally left the gap – is at oddswith the basic purpose of the antiretaliationprovision, which is ‘to enable employees tofreely exercise their rights without fear ofretribution from their employers.’ … Therefore,it is not the public policy of Ohio to permitretaliatory employment action againstinjured employees in the time between injuryand filing, instituting, or pursuing workers’compensation claims. Rather, [statelaw] expresses a clear public policy prohibitingretaliatory employment actionagainst injured employees, including injuredemployees who have not filed, instituted, orpursued a workers’ compensation claim.”Ohio Supreme Court. Sutton v. Tomco Machining,Inc., No. 2011-Ohio-2723. June 9,2011. Lawyers USA No. 993-2984. You canlink to the full text of this opinion by going towww.lawyersusaonline.com and searchingthe Lawyers USA website.Employee with brain tumorcan sue under ADAEMPLOYMENTAn employer may have violated federal disabilitydiscrimination law when it fired an employeeshortly after he disclosed that he hada brain tumor, a U.S. District Court in Texashas ruled in denying summary judgment.The plaintiff worked as a restaurant managerfor P.F. Chang’s. The company allegedlyfired him three days after he disclosedto a supervisor that he had been diagnosedwith a brain tumor.The plaintiff sued P.F. Chang’s under theAmericans with Disabilities Act.The restaurant chain argued that theplaintiff’s brain tumor did not substantiallylimit a major life activity under the Act.But the court concluded that a brain tumorcan be the basis of an ADA claim underthe more expansive definition of “disability”contained in the ADA AmendmentsAct of 2008. (See “New law could spur spikein ADA suits,” Lawyers USA, Sept. 8, 2008.Search terms for Lawyers USA’s website:“ADA Amendments Act”)The court said that P.F. Chang’s could notexplain how the company’s “knowledgethat [the plaintiff] had a brain tumor – anabnormal cell growth – that would requirebrain surgery is insufficient to create a triableissue as to whether [the plaintiff] wasdisabled or was regarded as disabled.”The court also concluded that the plaintiffsubmitted sufficient evidence showingthat P.F. Chang’s stated reason for termination– his alleged improper adjustment ofrestaurant workers’ hours – was a pretext.Finally, the court overruled P.F. Chang’smotion to exclude the plaintiff’s economicdamages expert, concluding that the witness’smethodology was sufficiently reliableto support his opinion that the courtshould award $191,500 in front pay.U.S. District Court for the Southern District ofTexas. Meinelt v. P.F. Chang’s China Bistro, Inc.,No. H-10-0311. May 27, 2011. Lawyers USA No.993-2955. You can link to the full text of this opinionby going to www.lawyersusaonline.comand searching the Lawyers USA website.FAMILYWorker fired for cellphone use properly deniedunemployment benefitsA worker who was terminated for violatingher employer’s ban on cellphone usage by posting a comment onFacebook about a co-worker can be deniedunemployment benefits, a Pennsylvaniaappellate court has ruled.A nurse used her cell phone to posta comment on her Facebook accountabout a co-worker while on active duty.She had previously been warned aboutviolating the employer’s policy prohibitingthe use of cell phones while onduty, and was terminated.When she sought unemploymentbenefits, the employer objected, arguingthat she was fired for willful misconduct.The employee claimed that she wasunaware of the policy against cellphone usage and that she never admittedto posting the comment or to usingher cell phone while on duty, but wasactually on a break.The court agreed that the employeewas ineligible for unemployment benefits,as “a violation of an employer’swork rules and policies may constituteWyoming court canadjudicate same-sex divorceA state court has subject matter jurisdictionover the divorce of two female residentswho were validly married in Canada,the Wyoming Supreme Court has ruled.The two women were married in Canadain 2008. They sought a divorce in Wyoming.A trial court dismissed the action, ruling thatit did not have subject matter jurisdiction.But the court disagreed.Although Wyoming law defines marriageas between a man and a woman, the statemust give proper respect to marriages validin the laws of the country in which theywere contracted, the court said.“[R]ecognizing a valid foreign same-sexmarriage for the limited purpose of entertaininga divorce proceeding does notlessen the law or policy in Wyoming againstallowing the creation of same-sex marriages.A divorce proceeding does not involverecognition of a marriage as an ongoingrelationship. Indeed, accepting thatwillful misconduct.”The court noted that contrary to herassertions, the employee had signed aform acknowledging that she had beenwarned about violating the employer’spolicy just five months earlier and thattwo other employees testified that sheadmitted to using her phone while onduty, testimony relied upon by the UnemploymentCompensation Board ofReview when it denied benefits.“[T]here is substantial competentevidence…regarding the existence of[the employer’s] policy prohibitingthe use of cell phones while on duty,the reasonableness of the policy, [theemployee’s] awareness of the policy,and the fact of its violation,” the courtsaid.Pennsylvania Commonwealth Court.Chapman v. Unemployment CompensationBoard of Review, No. 1583 C.D. 2010.April 25, 2011. Lawyers USA No. 993-2965. You can link to the full text of thisopinion by going to www.lawyersusaonline.com and searching theLawyers USA website.©iStockphoto.com/Ryan Balderasa valid marriage exists plays no role exceptas a condition precedent to granting a divorce.After the condition precedent is met,the laws regarding divorce apply. Laws regardingmarriage play no role. …“Specifically, [the parties] are not seekingto live in Wyoming as a married couple.They are not seeking to enforce any rightincident to the status of being married. Infact, it is quite the opposite. They are seekingto dissolve a legal relationship enteredinto under the laws of Canada. Respectingthe law of Canada … for the limited purposeof accepting the existence of a conditionprecedent to granting a divorce, is not tantamountto state recognition of an ongoingsame-sex marriage. Thus, the policy of thisstate against the creation of same-sex marriagesis not violated,” the court said.Wyoming Supreme Court. Christiansen v.Christiansen, No. 2011 WY 90. June 6, 2011.Lawyers USA No. 993-2972. You can link tothe full text of this opinion by going towww.lawyersusaonline.com and searchingthe Lawyers USA website.Health insurance clausemodifiable after divorceA husband could obtain a modificationof a divorce decree provision requiring himto maintain health insurance for the wife,the South Carolina Supreme Court hasruled in reversing judgment.The parties’ divorce decree providedthat the husband would maintain healthand dental insurance for the wife until sheremarried or obtained employer-providedcoverage.Six years following the divorce, the husbandrequested a termination of his healthinsurance obligation, citing a change of circumstancesrelating to disability and lossof employment.The wife argued that the husband’s healthinsurance obligation was an unmodifiableterm of the parties’ divorce decree.But the court decided that the provisionwas in the nature of support and thereforemodifiable under state law.“We hold that unless the agreement providesotherwise, the obligation to maintainhealth insurance is an incident of support.Because there is no language in thisagreement limiting the court’s power tomodify it, we find a modification is warrantedbased on a substantial change in circumstances,”the court said.South Carolina Supreme Court. Miles v.Miles, No. 26980. May 31, 2011. Lawyers USANo. 993-2958. You can link to the full text ofthis opinion by going to www.lawyersusaonline.comand searching the LawyersUSA website.Paternity claim can proceedagainst married motherA man had standing to maintain a paternityaction with respect to a child born toa married woman with whom he had an affair,the Kentucky Supreme Court has ruledin affirming judgment.The plaintiff had an affair with a marriedwoman. She stopped the affair when shelearned she was pregnant.Genetic testing performed shortly afterthe child’s birth revealed a 99.9 percentchance that the plaintiff was the father.Based on these results, the plaintiff commencedan action under state law to establishhis paternity.The mother argued that state law permitspaternity actions only with respect tochildren born out of wedlock.But the court decided that the mother’schild could be deemed to have been bornout of wedlock under the circumstances ofthis case.“[W]e hold that a ‘birth out of wedlock’under [the state’s paternity statute] occurswhen a child is born to a woman who, regardlessof her marital status, was not lawfullymarried to the biological father at thetime of the child’s conception or at the timeof the child’s birth,” the court said.Accordingly, the court concluded thatthe plaintiff had standing to seek paternityas a “putative father.”Kentucky Supreme Court. J.A.S. v. Bushelman,No. 2009-CA-001378-OA. May 19, 2011.Lawyers USA No. 993-2942. You can link tothe full text of this opinion by going towww.lawyersusaonline.com and searchingthe Lawyers USA website.PERSONAL INJURY& TORTJustices to rule onpreemption of railroadworker’s asbestos suitCan the estate of a railroad worker bringa product liability suit alleging that hismesothelioma was caused by exposure toasbestos at work, or are his state law claimspreempted by the federal Locomotive InspectionAct?The U.S. Supreme Court has agreed toanswer this question, reviewing a decisionContinued on page 24

Page 24 / Lawyers USA June 2011 / 2011 LUSA 172TOP DECISIONSPERSONAL INJURY& TORTContinued from page 23from the 3rd Circuit.The widow of a railroad worker broughtsuit on her husband’s behalf after he diedfrom mesothelioma, which she alleged hedeveloped due to asbestos exposure duringhis years of employment as a welder,machinist and supervisor for a railroad.The defendants removed the suit to federalcourt and moved for summary judgment,contending that the plaintiffs’ claimswere preempted by the federal LocomotiveInspection Act.The plaintiff argued that the design defectand failure to warn claims were not preemptedbecause the Act only preempts theregulation of locomotive equipment.But a U.S. District Court disagreed, grantingsummary judgment to the defendants,and the 3rd Circuit affirmed.“Congress intended to preempt all statelaws, regulations, and causes of actionwhich involve ‘the design, the construction,and the material of every part of the locomotiveand tender of all appurtenances.’The plaintiffs’ claims undeniably involvethe material used in locomotive parts, bothof which fall under the definition of ‘partsand appurtenances’ of locomotives, andtherefore are preempted by federal law. …“Congress’s intent in enacting andamending the LIA was to preempt completelythe field of railroad parts and appurtenances,and … the locomotive componentswhich are the subject of the plaintiffs’product liability action undoubtedlyfall within that category,” the court said.It noted that no other federal appellatecourts had decided the issue, but the majorityof state courts had reached a similarconclusion, including Alabama, California,Ohio and West VirginiaA decision from the U.S. Supreme Courtis expected next term.Kurns v. Railroad Friction Prods. Corp., No.10-879. Certiorari granted June 6, 2011. Rulingbelow: 620 F.3d 392 (Pa. 2010).Supreme Court rules inqualified immunity caseThe U.S. Supreme Court may generallyreview a lower court’s constitutional rulingwhere government officials won a final judgmenton qualified immunity grounds.However, in this instance the Court dismissedthe case as moot for other reasons.The suit was filed by the mother of anine-year-old girl who was interrogated fortwo hours at her elementary school by acounty deputy and child welfare workerconcerned about allegations that her fatherhad sexually abused her.Her mother filed a §1983 lawsuit, arguingthat her daughter’s Fourth Amendmentrights had been violated.The 9th Circuit agreed that the child’srights had been violated, but held that theofficers were shielded by qualified immunityfrom monetary liability.The officers appealed, and the U.S.Supreme Court granted certiorari.In a decision authored by Justice ElenaKagan, the majority determined that the decisioncould be reviewed by the Court becauseof the constitutional issues at play,even though the officers were the prevailingparties below.“No mere dictum, a constitutional rulingpreparatory to a grant of immunity createslaw that governs the official’s behavior. If ourusual rule pertaining to prevailing parties applied,the official would ‘fac[e] an unenviablechoice’: He must either acquiesce in a rulinghe had no opportunity to contest in thisCourt, or ‘defy the views of the lower court,adhere to practices that have been declaredillegal, and thus invite new suits and potentialpunitive damages,’” the Court said.The justices emphasized that the authorityto review such cases was limited to theSupreme Court, and that they were delineatingwhat they may review; “what we actuallywill choose to review is a different matter.”However, despite their power to review thecase, the Court dismissed it as moot, followinga line of questions raised at oral argument.“Time and distance combined havestymied our ability to consider this petition,”as the family had moved to a differentstate and the child at issue is nearly 18years old, the Court said.Chief Justice John Roberts and JusticesAntonin Scalia, Ruth Bader Ginsburg andSamuel Alito joined Kagan’s opinion. JusticeSonia Sotomayor filed an opinion concurringin the judgment, joined by JusticeStephen Breyer. Justices Anthony Kennedyand Clarence Thomas dissented.U.S. Supreme Court. Camreta v. Greene,No. 09-1454. May 26, 2011. Lawyers USA No.993-2940. You can link to the full text of thisopinion by going to www.lawyersusaonline.comand searching the Lawyers USAwebsite.Two-tier damages capis constitutionalThe state’s two-tier cap on damages isconstitutional, the South Carolina SupremeCourt has ruled.The plaintiffs were injured when their motorcyclecollided with a car in an intersection.The red signal light for the car hadburned out earlier that day and the plaintiffsfiled suit against the South Carolina Departmentof Transportation and the stateDepartment of Public Safety. They allegedthat the DOT failed to implement an appropriatere-lamping policy, and the DPS failedto notify a trooper to direct traffic at the intersectionafter a caller reported the outage.A jury agreed, awarding $1.875 million tothe plaintiffs.The defendants sought to reduce the verdictunder the state’s two-tier damages cap,arguing that the plaintiffs’ injuries resultedfrom a single “occurrence” under state law.The trial court agreed, cutting the verdictto $600,000.The plaintiffs appealed, arguing thedamages cap was unconstitutional andthat two separate occurrences gave riseto their injuries.Under a rational basis review, the courtconcluded that the damages cap was constitutionalbecause it “relieved the governmentfrom the hardships of unlimited liability”and “furthered accountable andcompetent healthcare while promoting affordablemedical liability insurance.”“[E]ven taking all of [the plaintiffs’] evidenceinto account, it cannot overcome thegreat deference this court must give” to thestate legislature, the court said.But the court decided that two separateoccurrences gave rise to the plaintiffs’ injuries,raising their reduced verdict to $1.2million“[T]wo independent and separate actsof negligence occurred here – one by [DOT]and one by [DPS]. There is no indicationthat the [defendants’] actions combined toform a single act of negligence. … We canfind no causal connection between the actionsof [DOT] and [DPS]; had the jury notfound [DOT] negligent, the verdict against[DPS] could still stand, and the converse isalso true,” the court said.South Carolina Supreme Court. Boiter v.South Carolina Department of Transportation,No. 26981. June 6, 2011. Lawyers USANo. 993-2979. You can link to the full text ofthis opinion by going to www.lawyersusaonline.comand searching the LawyersUSA website.Florida’s med-mal capis constitutionalFlorida’s $1 million cap on noneconomicdamages in medical malpractice cases doesnot violate the federal constitution, the 11thCircuit has ruled in affirming judgment.The plaintiffs’ daughter died as the resultof complications from childbirth. As amilitary dependent, the woman receivedcare from U.S. Air Force obstetricians.The plaintiffs sued under the FederalTort Claims Act, alleging that their daughter’sdeath was caused by the negligence ofAir Force doctors.A federal judge found the government liableand concluded that the plaintiffs sustainednearly $3 million in damages, $2 millionof which were noneconomic. However,the judge applied Florida’s statutory capfor medical malpractice claims and limitedthe plaintiffs’ recovery of noneconomicdamages to $1 million.The plaintiffs argued that Florida’s damagescap violated the Equal ProtectionClause of the Fourteenth Amendment to theU.S. Constitution.But the 11th Circuit disagreed, explainingthat the Florida legislature “identified a legitimategovernmental purpose in passing thestatutory cap, namely to reduce the cost ofmedical malpractice. The means that Floridachose, a per incident cap on noneconomicdamages, bears a rational relationship to thatend. The Florida legislature could reasonablyhave concluded that such a cap would reducedamage awards and in turn make medicalmalpractice insurance more affordableand healthcare more available.”The court further decided that the statelaw did not violate the Takings Clause.It proceeded to certify to the FloridaSupreme Court certain questions regardingthe validity of the damages cap under thestate constitution.U.S. Court of Appeals, 11th Circuit. Estateof McCall v. U.S., No. 09-16375. May 27, 2011.Lawyers USA No. 993-2949. You can link tothe full text of this opinion by going towww.lawyersusaonline.com and searchingthe Lawyers USA website.Yaz/Yasmin claims can’tproceed as class actionPlaintiffs are not entitled to class certificationon claims that they suffered injuriesas a result of taking the oral contraceptivesYaz and Yasmin, a U.S. District Court in Illinoishas ruled.The plaintiff sued Bayer, alleging that shesuffered deep vein thrombosis as a result oftaking Yaz. She sought certification of a nationwideclass of all those with Yaz or Yasminrelatedpersonal injury claims against Bayer.The plaintiff’s case was consolidated inmultidistrict litigation in Illinois with thousandsof other similar cases from across thecountry. The first bellwether trial in the litigationis set for Sept. 2011. (See “First bellwetherYaz, Yasmin trial set for 2011,”Lawyers USA, Oct. 21, 2010. Search termsfor Lawyers USA’s website: Yasmin.)In this proceeding, Bayer moved to dismissthe class allegations in the plaintiff’scomplaint.The court agreed that the individual issuesrelating to the putative class membersprecluded class certification.It explained that “almost every elementof the asserted claims will require highly individualizedfactual inquiries unique notonly to each class member but also to eachclass member’s prescribing physician. …“For example, … establishing causationwill require (1) an examination of each classmember’s medical history, including preexistingconditions and use of other medications;(2) an evaluation of potential alternatecauses for the alleged injury; and(3) an assessment of individualized issuespertaining to each class member’s prescriber,including how the doctor balancesthe risks and benefits of the medicine forthat particular patient, the particular doctor’sprescribing practices, the doctor’sknowledge about the subject drug, and thedoctor’s sources of information with regardto the subject drug.”U.S. District Court for the Southern Districtof Illinois. In re Yasmin and Yaz Products LiabilityLitigation, No. 3:09-md-02100-DRH-PMF. May 4, 2011. Lawyers USA No. 993-2926.You can link to the full text of this opinion bygoing to www.lawyersusaonline.com andsearching the Lawyers USA website.REAL PROPERTY& ZONINGSuccessor property ownercan’t evict tenantA successor property owner could notevict a tenant without providing the 90-daywritten notice required under a federal lawprotecting renters’ rights in the context offoreclosure, the Arizona Court of Appealshas ruled in reversing judgment.A defendant rented a property that abank acquired in a trustee’s sale after theoriginal property owner defaulted on anote. The day after the trustee’s deed wasrecorded, the bank sent the defendant a noticedemanding that she vacate the premiseswithin five days.The defendant refused to comply withthe demand and more than three monthslater the bank filed a forcible entry and detaineraction.The defendant argued that she could notbe evicted because the bank failed to complywith the 90-day written notice requirementof the Protecting Tenants at ForeclosureAct. The federal law was passed in2009 and is designed to protect tenantswho reside in certain foreclosed properties.The bank argued that it satisfied the Act’srequirements because it waited more than90 days before it filed the forcible entry anddetainer action.But the court concluded that the five-daynotice originally received by the defendantwas insufficient, noting that the Act includesa right for the tenant to occupy thepremises until the end of the lease, as wellas a right to receive a notice to vacate 90days before the effective date.“Obviously, a five-day notice, even whenfollowed by an unannounced 90-day delay,is at best misleading. The noticed tenantcould reasonably conclude that all arrangementsto vacate the property and relocatemust be concluded within the five-day noticeperiod. Such misleading informationwould not be consistent with the [Act’s] requirement,”the court said.Arizona Court of Appeals. Bank of NewYork Mellon v. De Meo, No. 1 CA-CV 10-0177.May 3, 2011. Lawyers USA No. 993-2897. Youcan link to the full text of this opinion by goingto www.lawyersusaonline.com andsearching the Lawyers USA website.TAXATION & ESTATEPLANNINGLawyer can be sued fornegligent estate planningThe discovery rule tolled the statute oflimitations in a lawsuit against a lawyerwho allegedly provided bad advice in thepreparation of an estate plan, the Rhode IslandSupreme Court has ruled in reversinga dismissal.The plaintiff and her husband retained thedefendant to prepare an estate plan in 1999.Under the plan, the couple quitclaimed twoadjoining lots of land to a trust.In 2003, after her husband died, the plaintiffattempted to sell one of the lots.However, local zoning officials advisedher that the conveyance of the adjoininglots to the trust had resulted in their merger,meaning that they could not be soldseparately.In 2006, the plaintiff sued the defendantfor malpractice.The defendant argued that the lawsuit wasContinued on page 25

2011 LUSA 173 / June 2011 Lawyers USA / Page 25Jury awards $322 million in asbestos lawsuitASBESTOS – Continued from page 1dangerous and continued to sell it throughthe mid-1980s.Defense attorneys for both companiesdeclined to comment and referred calls tocorporate spokespeople.Linda Koenig, a spokesperson for ChevronPhillips Chemical Co., said in an e-mailedstatement that the plaintiff’s condition wasnot caused by asbestos exposure and thatthe company will appeal if a judgment fordamages is entered.Scot Wheeler, a spokesperson for UnionCarbide, also e-mailed a statement thatcalled the verdict “outrageous” and said thecompany will file post-trial motions and anappeal.What’s in a warning?While the defendants claimed that theplaintiff’s illiteracy prevented him from beingable to read a warning label, Hossley arguedthere are many ways to warn about adangerous product.“These are roughneck blue collar workers.There’s a broad spectrum of educationlevels out on drilling rigs,” he said.The defendants argued that their warningon the bags of asbestos followed theOSHA minimum requirements under 1972regulations.But Hossley argued they didn’t meetthose standards, which state that a warningmust be of sufficient size and contrast.At one point he showed the jury a cigarettelighter whose warning label occupiedthe entire length of the product and arguedthat the defendant’s warning label, roughlythe size of a cell phone, wasn’t big enoughrelative to the size of the 50-pound bags.“They needed a stronger warning in size,contrast or colors, [such as] red or yellowhighlighting … something that would havecaught someone’s eye to allow them toheed it,” said Hossley.The defendants also contested whetherthe plaintiff had asbestosis, in a battle of radiologistsand pulmonary experts.AT-A-GLANCE✦ The verdict was the largestsingle plaintiff’s asbestos verdictin U.S. history.✦ The plaintiff’s attorney believesthe jury awarded such largedamages because the companyknew the product was dangerousand continued to sell it throughthe mid-1980s.“It was a classic swearing match,” saidplaintiff’s local counsel, Gene Tullos of Tullos& Tullos in Raleigh, Miss. “I think the juryjust believed our experts over their experts.”According to Tullos, the defendants“said it was just some other pulmonaryproblems and tried to blame it on obesityand smoking.”But the fact that the plaintiff used tosmoke may have helped support his “fearof cancer” claim, because prior smokingcombined with asbestos exposure can putsomeone in a higher risk category for gettingcancer.A co-worker, another “roughneck” whoworked with Brown on the rig since back inthe 1970s handling the same asbestos product,testified about his own lung cancer.According to Hossley, a defense lawyerasked the co-worker on cross-examination ifit was true that his cancer was in remission.But the co-worker answered that his doctorhad just found more spots on his lungs.Brown himself testified about his fear ofgetting cancer and how his life has changedbecause he can no longer work.“He never missed a day’s work in 16years,” said Tullos, who added that the juryliked Brown’s down-to-earth manner andappearance.“In rural MississippiI’ve found arrogancedoesn’t getyou too far. He’s areal humble-typeperson. He didn’thave the benefits ofan education, but hemade the best of it.He was a hard worker,showed loyalty toAllen Hossleyhis employer andhad an excellent work record,” Tullos said.Message deleted, message sentThe punitive damages phase proved thatsometimes, less is more.After spending only about 15 minutes onher argument for punitive damages, consistingof a five-minute video deposition ofa Chevron Phillips Chemical representativewho explained how to read a company’s networth, Dawn Smith of Hossley Embry thentold the jury two things: that each defendant’snet worth totaled about $4 billionand that they should “send a message” tothe defendants.The defense objected to the “send themessage” language, and the judge ultimatelysustained the objection, instructingthe jury to disregard the statement.“We probably spent as much time arguingabout ‘send the message’ as I did to puton all my evidence [for punitive damages],”Hossley said.When the jury returned after only twohours of deliberation in a trial that lastednearly three weeks, Hossley began to worry.“We were nervous we had lost the case,”he said.But the 12-member jury came back withan award of compensatory damages of $11million in future medical expenses, another$11 million for pain and suffering and fear ofcancer and $300 million in punitive damagessplit evenly between the two defendants.The post-trial legal fight will be as big asthe numbers.Wheeler, the Union Carbide spokesperson,noted that, “While the case lacks anymerit, by just applying the applicable damagelimitations, the total award againstUnion Carbide should be reduced to substantiallyless than $1 million.”But Hossley said only punitive damageswould be affected, which in Mississippi arecapped at $20 million for a company thathas a net worth over $1 billion.In a post-trial motion, Union Carbidemoved for the trial judge to be recused fromthe case based on an alleged conflict of interestbecause the judge’s father previouslysettled a claim against Union Carbide forasbestos exposure.But Hossley said the company knew ofthe judge’s father’s exposure to asbestosearly in the trial, during jury selection, andthat the judge’s rulings during trial wereconsistent with the law and facts of the case.The jurisdiction has a high number ofclaims over injuries from asbestos becauseof the use of the product in the oil drillingindustry that dominates the region. Hossleyhas four more trials pending in Mississippiinvolving roughnecks, oil rigs andbags of asbestos.Plaintiff’s attorneys: Allen Hossley ofHossley Embry in Dallas, Texas; Gene Tullosof Tullos & Tullos in Raleigh, Miss.Defense attorneys: Alex Cosculluela ofAdams and Reese in Houston, Robert Johnsonin Natchez, Miss. and David Garner ofRaleigh, Miss. for Chevron Phillips ChemicalCo.; Michael Terry of Hartline, DacusBarger Dreyer in Corpus Christi, Texas andMarcy Croft of Forman Perry Watkins Krutz& Tardy in Jackson, Miss. for Union Carbide.The case: Brown v. Phillips 66 Co.; May 4,2011; Mississippi Circuit Court, Smith County;Judge Eddie Brown.Questions or comments can be directed to thewriter at: sylvia.hsieh@lawyersusaonline.comPlumber awarded $41 million for mesotheliomaContinued from page 133.5 percent to Kaiser Gypsum out of 100percent for all possible contributors toCasey’s mesothelioma – and California’scomplicated system of damages awards,Casey will receive $2.8 million from FDCCand $1.8 million from Kaiser Gypsum.Clear and convincing evidenceBecause Judge Sullivan had ruled thatthe plaintiff had not presented sufficient evidencefor the jury to consider punitivedamages against FDCC, the trial begananew for just two parties: Casey and KaiserGypsum. After picking a new jury, the partiestried issues relevant to the fourteenthand final question on the verdict form:whether the jury found by clear and convincingevidence that the company wasguilty of acting with oppression or malice.The second jury unanimously answeredin the affirmative, and the parties then spentone day presenting evidence about KaiserGypsum’s financial condition.The financial condition evidence was“murky and opaque,” Purcell said, becausethe vast majority of Kaiser Gypsum’s assetswere sold off in 1978 and then transferredby a parent company to another companyoperating in Panama.“It was very difficult to get discoveryabout what those proceeds have growninto, so we presented to the jury what thatamount of liquidated assets would grow toin the interval between 1978 and today”three different ways, Purcell said: simply accountingfor inflation, if the money had beeninvested in risk-free treasury bills or if themoney was placed in the stock market.The liquidated assets – estimated to bebetween $36 million and $45 million – wouldhave grown to $90 million, $200 million or$492 million, respectively, Purcell said.The jury then awarded an additional $21million in punitive damages against KaiserGypsum.Plaintiff’s attorneys: Gilbert Purcell andDustin Bodaghi of Brayton Purcell in Novato,Calif.Defense attorneys: Michael A. Vasquezand Robert J. Bugatto of Vasquez, Estrada &Conway in San Rafael, Calif. for FDCC California;Julie A. Torres and Jillian Keith of Dehay& Elliston in Dallas and Oakland, Calif.and David A. Shaw of Williams Kastner inSeattle, Wash. for Kaiser Gypsum.The case: Casey v. Kaiser Gypsum Co.;March 17, 2011 (compensatory verdict); May11, 2011 (punitive verdict); San Francisco SuperiorCourt, Calif.; Judge Donald Sullivan.Questions or comments can be directed to the writer at:correy.stephenson@lawyersusaonline.comContinued from page 24outside the state’s three-year statute of limitationsbecause her claim accrued in 1999when the lots were conveyed to the trust.But the court decided that the discoveryrule applied to toll the statute of limitations.“[W]e agree with the plaintiff that hercomplaint alleged that the defendant committedlegal malpractice when he advisedthe [the plaintiff and her husband] to deedboth lots to the trust not because the plaintiffdid not understand that the lots wouldthen merge, but rather because he did notadvise [his clients] that they could achievetheir estate plan without causing the lots tomerge. …“In her affidavit, [the plaintiff] stated thatshe and her husband ‘deeded Lot 43 to [thetrust] because … [the defendant] had advised[them] that in order to carry out ourestate plan, all of our assets had to be conveyedto the trust.’ Viewing the complaint,depositions, and affidavits in a light most favorableto the plaintiff as the nonmoving party,as we must, it is our opinion that the discoveryrule does apply to this claim,” thecourt said.Rhode Island Supreme Court. Sharkey v.Prescott, No. 2009-316. May 16, 2011. LawyersUSA No. 993-2923. You can link to the full textof this opinion by going to www.lawyersusaonline.comand searching the LawyersUSA website.WORKERS’COMPENSATIONLoss of eye lens doesn’tentitle employee to compThe surgical removal of the lens of an employee’seye in the course of treatment fora workplace injury does not entitle him toworkers’ compensation for a total loss ofsight, the Ohio Supreme Court has ruled.The employee was struck in the eye witha piece of metal while on the job. He underwentemergency surgery to repair hiscornea, but a few months later, he had tohave a second surgery to remove his lens.It was replaced with an intraocular lens implant,which actually improved his eyesight.He then filed a petition seeking workers’compensation for the loss of vision in hiseye. He contended that the removal of alens results in the loss of a natural part ofthe eye that is necessary for sight.His employer objected, arguing that despitethe surgery, the employee should notreceive an award for a total loss of visionbecause his eyesight did not meet the statutoryrequirements.The court agreed.“It is undisputed that [the employee’s]vision in his injured right eye measured20/25 immediately following the accident.Prior to undergoing cataract surgery severalmonths later, his vision was 20/30. [Hisdoctor] opined prior to the cataract surgerythat [the employee] had suffered aneight percent visual impairment. After surgery,his vision returned to 20/25. At no timefollowing his injury did [the employee’s]‘loss of uncorrected vision’ reach the statutorythreshold … [and] it follows that hewas unable to establish a total loss of sight,”the court said.Ohio Supreme Court. Baker v. Coast toCoast Manpower, No. 2011-Ohio-2721. June9, 2011. Lawyers USA No. 993-2985. You canlink to the full text of this opinion by going towww.lawyersusaonline.com and searchingthe Lawyers USA website.

ByJusttinRebellounsafely and hit a bumpStaff writerthat caused the machinetomalfunction. They claimedTexasjury has orderedthat Lopez told emergencyCaterpillar Inc. to paycrew and treating doctorsA$ $56.3 million to a workthata bump had caused theer who was paralyzed while accident.using one the company’s Lanier disputed thatearth-moving tractors.assertion. “My clientspeaksIn August 2006, Alfonso broken English,”hesaid.Lopez, now 41, wasusing “At the time he reportedone of Caterpillar’s Wheel this, he had 11 brokenribs,Tractor 623 G Scrapers punctured lungsand waswhile building a subdivision paralyzed from the waistin the town of Little Elm, down. It’s not thekind ofjustnorthofDallas.atmosphere where you’reAccording to the com-going to analyze thingsplaint, the rig began buck-well, whenyou’re panicked,ing and bouncing up and can’t breathe or move.”The plaintifffwas using a Caterpillarwheel-tractorscraperwhen he was seri rouslyinjured.down,causing Lopez to fall Defense attorneys couldfrom his seat and forcinghis client led to the acci-photosofthesiteshowednot be reached for com-him up against the machine’sdent, Lanier and his co-there was no bump. Lanierment. An appealpealbyframe.Caterpillar is expected.counsel Frank Herrera also noted that the tractorThe impact caused Lopezrelied largely on the testi-used by Lopez is adver-to sufferspinal injuriesand Bump in thecase? monyofGabrielLopez,thetised as being an all-terraina punctured lung. He is now According to Lanier,the plaintiff’s brother-in-law,device and thereforeparalyzed from the waist defense argued that Lopez who witnessed the acci-should have been able todown.was not wearinghis seat dent.negotiate any bump in theLopez’s lawyer,Mark belt and not being cautious“He said my client wasn’tfield.LanierofHouston,saidtheabout dips or grooveson going too fast and the Thecruxoftheplaintiff’sprimary defense offered by the land.entire surface he was cov-case was that a mechanicalCaterpillar’s attorneys was To counter the claim that ering was flat,” said Lanier. flaw in the tractor causedthat Lopez was driving poor driving on thepart of Further, he said several the accident. Lanier saidPage 26 / Lawyers USA June 2011 / 2011 LUSA 174ClassifiedsExperts Legal Products & Services Lawyer-to-Lawyer Referral Vacation Rentalwww.lawyersweeklyclassifieds.comExpertsLawyer-to-Lawyer ReferralECONOMIC CONSULTINGCRUISE SHIP ACCIDENTSTRAUMATIC BRAIN INJURYDETERMINATION OFEconomic Loss, Lost Income,Loss of Earning Capacityof present & future value of damagesRonald T. SmolarskiMA, LPC, CLCP, CRC, CDEII,ABVE,ABMPP, CVE, CRV, CCM33 YearsExperience• Life Care Planning(Future Medical)• Vocational Expert• Forensic Economist•FunctionalCapacityEvaluation• Expert Testimony1-800-821-8463Email: ron@beaconrehab.comwww.beaconrehab.comHANDWRITING EXPERTRonald H. RiceCourt Qualified/Appointed ForensicHandwriting Examiner*(MA, NH, CT, SC, FL, IL, OR)Forensic Behavioral ProfilerThrough Written CommunicationSuccessfully proved the Jack Kerouacwills are forgeries(& identified the forger).(508) 746-2266 • Fax: (508) 746-2265ronriceforensichandwriting@verizon.netTerrorism, Anonymous Letters, Suicide/Homicide, Bomb Threats, Death Threats,Victim Recantation, Sexual/Ethnic/ReligiousHarassment, Medical Malpractice,Questioned Wills, Deeds, Contracts, etc.*Ron Rice IS NOT a Document Examiner!He is a HANDWRITING EXAMINER!(THERE IS A DIFFERENCE)Google Ron Rice HandwritingSOUTH EAST OFFICE1425 Miller Blvd.Fruitland Park, FL 34731Tel: (352) 435-7235 Fax: (352) 435-7236LEGAL NURSE CONSULTANTNationwide CertifiedLegal Nurse ConsultantsGives you thecompetitive edge!3 hours complimentaryscreening for meritPaule Toon &Associates, LLCMAYO, MAYOAND ASSOCIATES, INC.(540) 894-8781email: drloumayo@yahoo.comLawyers Weekly AdvertisingAd Rep: KatzCRUISE SHIP ACCIDENTSClient: FidelifactJOHN H. 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2011 LUSA 175 / June 2011 Lawyers USA / Page 27Home video helps win record malpractice verdictContinued from page 16spend a lot of time debating the medical literatureon the syndrome.“It’s a very theoretical, scientific researchbasedcondition,” she said.Instead, Nastri agreed there was inflammationin the placenta but argued that it wasa common condition and existed 12-24 hoursbefore the birth, strengthening her argumentthat if Daniel had been delivered two daysearlier, he would have been healthy.Defense attorney James Rosenblumcalled the verdict a “huge miscarriage ofjustice” and a “hugely emotional verdictcontrary to the weight of the evidence.”Specifically, he said that the plaintiff’s expert“made significant admissions thattreatment was proper” and gave no indicationthat a delivery two days earlier wouldhave been better.Rosenblum said he is working on posttrialmotions that he will file next week anddepending on the outcome plans to appealas well.Challenging juryNastri had a few concerns about the juryfrom the outset. Not only was the foreman23 years old, but the entire jury was male.“They hadn’t had babies, they hadn’tseen babies delivered, and many did nothave children of their own. It was a challengeas to how to present the case to thoseguys,” said Nastri.Even the terminology of pregnancy andfemale anatomy were “words these guysdon’t hear every day,” she said.At one point, in talking about a normalvaginal delivery, Nastri said she got a vibefrom the young male jury as if they werethinking: “Did she just say vagina?”The jury got a laugh when Dominic testifiedthat he takes over caring for Daniel duringweekends to give Cathy a break so shehas time to clean the house. They stoppedlaughing when he explained that after whatshe goes through during the week caring forDaniel, cleaning the house is a break.Dominic, an immigrant from Italy, worksas a part-time masonry contractor, andthe couple is hard-pressed to afford healthinsurance.Daniel, who is now 8 years old, made aone-minute appearance in court while oneof the plaintiff’s experts was on the stand.In closing arguments, Nastri focused onkeeping it simple for the jury.“Our theme was, when you have a highriskpregnancy, you don’t want to take a riskat the last minute. The doctor’s job is toguide the pregnancy to a safe conclusion.The last thing you want to do is guide themother to the edge, then step back and lether fall off the cliff,” Nastri said.She also delivered a message that Cathyasked her to tell the jury: “As bad as everyonethinks this is, he is a gift to us. When hewas born, I was not the world’s most patientperson, but he has taught me to be.”“It was important for the jury not to thinkthat they didn’t want this baby,” Nastri said.Plaintiffs’ attorneys: Kathleen Nastriand James Horowitz of Koskoff, Koskoff &Bieder in Bridgeport, Conn.Defense attorney: James Rosenblum ofRosenblum Newfield in Stamford, Conn.The case: D’Attilo v. Viscarello; May 25,2011; Connecticut Superior Court, ComplexLitigation Docket at Waterbury; JudgeKevin Dubay.Questions or comments can be directed to thewriter at: sylvia.hsieh@lawyersusaonline.comUSA BRIEFSContinued from page 2drug is unsafe for widespread clinical use.”– Pat MurphyAlabama law limiting foodsuits moves forwardThe Alabama House of Representativeshas overwhelmingly passed the CommonSense Consumption Act, a bill that wouldprevent plaintiffs from filing suit againstfood retailers or restaurants.HB 193 “would prohibit lawsuits basedon claims arising out of weight gain, obesity,a health condition associated withweight gain or obesity, or other generallyknown condition allegedly caused by or allegedlylikely to result from long-term consumptionof food.”The far-reaching law covers “manufacturers,packers, distributors, carriers, holders,sellers, marketers or advertisers offood products.”The proposed legislation would not preventa suit against a business that made “amaterial violation of an adulteration or misbrandingrequirement prescribed bystatute or rule of this state or the UnitedStates of America” or “any other materialviolation of federal or state law applicableto the manufacturing, marketing, distribution,advertising, labeling, or sale of food.”The law would apply to all coveredclaims pending on the date it took effect,regardless of when the claim arose.State Rep. Mike Jones, Jr., who sponsoredthe legislation, told Forbes that thebill is intended to protect small restaurantsthat could be financially harmed bya lawsuit.“Ma and pa restaurants have a 4 percentprofit margin or less,” he said, and a lawsuitcould force such a restaurant out of business.“We’re saying you can’t sue if you ate thefood for a couple of months and gainedweight,” Jones said.The bill now moves to the state Senate,where a companion bill was also filed.– Correy E. StephensonPlavix cases start to pick upLitigation over the blood thinner Plavixis picking up momentum.About forty cases have been filed in NewJersey state court, and drug makers Bristol-MyersSquibb and Sanofi-Aventis areseeking mass tort treatment and consolidationof the cases.Thousands more wait in the wings andare expected to be filed in federal court inthe coming months, according to plaintiffs’attorneys.“I think it’s going to pick up a lot of steamin the next six months,” said Michael Millerof The Miller Firm in Orange, Va., who hasfiled a number of the cases.Mark Burton, a plaintiffs’ attorney atHersh & Hersh in San Francisco, said he hasseen an uptick in calls from potential plaintiffssince March of last year when the Foodand Drug Administration slapped a blackbox warning on the drug.Plavix, a popular drug generating $8 billionper year in sales, is commonly prescribedfor patients at risk of heart attacks.Plaintiffs allege that the drug is no moreeffective than aspirin, but carries muchgreater risks. They argue the manufacturersfailed to warn about the increased riskof heart attack, stroke and potentially fatalblood disorders.According to a complaint filed on behalfof 11 plaintiffs in Illinois state court, defendantsheavily marketed Plavix in televisionads touting it as a “super-aspirin,” whiletheir own studies showed that the risks topatients far outweighed any benefits.“We’re arguing Plavix has less efficacythan aspirin which is the generic and muchcheaper and safer alternative that costs 4cents a pill, compared to Plavix that sellsfor 4 dollars a pill,” said Miller, who doesnot represent the plaintiffs in the Illinoiscase, but makes identical allegations in otherfilings.– Sylvia HsiehProposed Virginia legalethics opinion would giveMedicare lien protectionA proposed Virginia legal ethics opinionprovides plaintiffs’ lawyers with newammunition in the battle for protectionfrom Medicare liens in personal injurysettlements.Insurance companies and the plaintiffs’bar have tussled as each side sought ashield against exposure for unpaid governmentliens. Medicare regulations emphasizethe government’s determination to collectfrom anyone involved in a personal injurysettlement if a payment obligation isoverlooked.The draft opinion not only determines itis unethical for a plaintiff’s lawyer to indemnifyan insurance carrier against anyunpaid liens, but also it also concludes aninsurance company lawyer is wrong toeven ask for indemnity.Plaintiffs’ lawyers hail the proposedopinion, LEO 1858, as a way to answer nowcommondemands of insurance companiesfor indemnity protection against possibleunpaid liens.The Virginia State Bar’s Standing Committeeon Legal Ethics is asking for publiccomments on the proposed opinion. Thedraft opinion is posted on the state bar’swebsite at VSB Ethics Counsel James M.McCauley said he has received only one officialcomment so far, but reaction generallyhas been favorable.The opinion notes eight ethics opinionsfrom other states, all of which found it unethicalfor the plaintiff’s lawyer to indemnifythe defendant’s insurer against debtsof the plaintiff.– Peter ViethA version of this story originally appearedin Virginia Lawyers Weekly, a sister publicationof Lawyers USA.Texas governor signs‘loser pays’ bill into lawTexas Gov. Rick Perry has signed into lawa measure that will limit personal injurysuits by levying some fees on plaintiffs andallowing some suits to be dismissed earlyin the process.Perry designated the “loser pays” bill atop priority of the legislative session, sayingTexas needs to crack down on frivolouslawsuits.The bill makes it harder to file personalinjury suits and penalizes claimants if theydon’t settle for more than they eventuallywin. Some plaintiffs who sue and lose willbe required to pay the court costs and attorneyfees of those they are suing. The lawalso creates expedited civil actions for casesworth less than $100,000. The measuregoes into effect Sept. 1.Perry said the changes are intended toreduce the cost of litigation while still allowinglegitimate cases to proceed.Business groups and the Texas MedicalAssociation, which wanted to protect doctorsfrom frivolous malpractice lawsuits,urged lawmakers to pass the legislation.But several trial lawyers’ groups and theAFL-CIO opposed the measure, arguing itwould give corporations the upper hand inlawsuits and prevent some individuals withlegitimate claims from filing suit.State Sen. Joan Huffman, the Senate sponsorof the bill, worked to negotiate a compromisebetween trial lawyers’ groups andbusinesses. The trial lawyers agreed to supportthe state senate version of the bill afterthe provision that allows judges to immediatelydismiss frivolous lawsuits was added.NHTSA investigating FordFreestyle accelerationFederal safety officials are investigatingcomplaints that the Ford Freestyle crossovervehicle can lunge unexpectedly when drivingat low speeds or idling.The National Highway Traffic Safety Administrationsays it has received 238 complaintsinvolving 2005, 2006 and 2007Freestyles. Eighteen minor crashes were reportedwith one minor injury.The agency said the seven-seat familyhaulers can lunge up to 10 feet when thedriver’s foot is not on the accelerator orfirmly on the brakes. Stepping on thebrakes firmly stops the car from moving.Details of the investigation are posted onNHTSA’s website. The probe began May 11and covers about 170,000 Freestyles. NHT-SA will decide if a safety recall is necessary.A Ford spokeswoman said the companyis cooperating with NHTSA as it reviews thematter.The only injury reported from the problemwas a knee bruise when a car collidedwith a pedestrian in a driveway. The persondidn’t need medical attention, accordingto NHTSA.Incidents of brief acceleration have beenreported in both forward and reverse gears,NHTSA said.Fla. lawmakers limit suitsagainst auto makersThe Florida house has approved a billthat makes it more difficult for injured plaintiffsto win product liability damages fromauto makers and other manufacturers.The measure (SB 142) was approved bya vote of 80-35 and will be sent to RepublicanGov. Rick Scott. It had previouslycleared the state senate.The bill, which the governor is expectedto sign, neutralizes the 2001 Florida SupremeCourt decision in D’Amario v. Ford, whichsaid that an auto maker can’t ask the jury toapportion fault between it and the driverwho caused the underlying accident because“the accident-causing fault of the driverwould not be relevant in crashworthinesscases in assessing a manufacturer’s neglectin designing an automobile or its parts.”According to the new law, juries wouldhave to “consider the fault of all persons whocontributed to an accident when apportioningdamages in a products liability action.”The legislation on the “crashworthinessdoctrine” was the focus of a lobbying duel betweentrial lawyers who represent plaintiffsand business interests led by Ford Motor Co.Democrats have argued the bill wouldshift medical costs for seriously-injuredcrash victims to taxpayers and that manufacturersshould be held accountable fortheir mistakes.

Page 28 / Lawyers USA June 2011 / 2011 LUSA 176Lawyers lament ruling on state illegal worker lawWHITING – Continued from page 1D.C.-based National Immigration Law Center.‘Business death penalty’The 2007 law, called the Legal ArizonaWorkers Act, subjects employers who knowinglyemploy undocumented workers topenalties, including the suspension or revocationof their business licenses. The lawalso mandates that employers use the federalE-Verify system to check the immigrationstatus of workers. (Federal law makesthe use of the E-Verify system voluntary.)The law, referred to by critics as a “businessdeath penalty” due to its severe penalties,drew the opposition of a motley coalition,including the U.S. Chamber of Commerce,American Civil Liberties Union,Service Employees International, the SouthernPoverty Law Center and the Obama administration,which challenged the law infederal court, arguing that it was preemptedby the Immigration Reform and ControlAct of 1986. That law preempts “any stateor local law imposing civil or criminal sanctions(other than through licensing and similarlaws) upon those who employ, or recruitor refer for a fee for employment,unauthorized aliens.”But the U.S. Supreme Court held in a 5-3ruling that the law fell within the “licensingand similar laws” savings clause of the federalstatute, and was neither expressly norimpliedly preempted.In a statement issued after the ruling washanded down, Arizona Gov. Jan Brewer saidshe was “gratified.”“Despite the Obama Administration’s oppositionat the U.S. Supreme Court, Arizonaand all states are now free to take down the‘Help Wanted’ sign for illegal aliens in theirstates,” Brewer said. “Arizona’s employersanctions law allows the vast majority ofbusinesses that want to play by the rulesto comply with federal and state lawsagainst hiring illegal aliens, and seeks topunish those employers who take advantageof the federal government’s immigrationfailures.”Because of the law, Brewer said, Arizonanow leads the nation in the use of the federalE-Verify system by employers.But critics said the law neither treats employersfairly nor solves the problem of employingillegal workers.“In fact, in some ways it makes the problemof undocumented workers worse, becauseyou are just sending [them] fromone state to another if you have 50 differentlaws,” Leopold said. “That is a veryconfusing situation for an employer to dobusiness.”Robin Conrad, executive vice presidentof the National Chamber Litigation Center,the legal arm of the U.S. Chamber of Commerce,echoed those sentiments in a statementissued after the ruling.“This ruling does not change the realitythat businesses from Main Street to WallStreet are overwhelmed by a cacophony ofconflicting state and local immigration legislation.The growing patchwork of stateand local immigration laws is a serious obstacleto doing business across state lines,”Conrad said.What’s worse, the ruling could spurstates to pass other immigration statutesand refer to them as licensing laws, Leopoldsaid.“What really disturbs me is if the SupremeCourt [called this law] a licensing rule, youcould make that argument for any numberof laws,” Leopold said. “Leasing and rentingmight be seen” the same way.Leopold and Conrad agreed that the onlysolution is congressional intervention.“It’s time to put politics aside” and passcomprehensive immigration reform, Leopoldsaid.In her statement, Conrad said: “The decisionmakes it all the more urgent for Congressto bring much-needed clarity to immigrationlaw through legislative reform,including preemption of employment-relatedstate immigration laws.”No blank check?Brewer said she hoped the Court wouldtake a similar approach to S.B. 1070, the2010 measure she signed into law requiringpolice to check the immigration statusof an individual who is stopped, detainedor arrested if a “reasonable suspicion” existsthat the person has entered the countryillegally.In April the 9th Circuit upheld a preliminaryinjunction preventing enforcement ofthat law, and Brewer vowed to appeal theruling to the Supreme Court.“While S.B. 1070 and the Legal ArizonaWorkers Act are obviously different laws, Iam hopeful and optimistic that the U.S.Supreme Court will hear Arizona’s future appealof the 9th Circuit Court of Appeals’ decisionagainst S.B. 1070 and apply the samegeneral principle of federalism by rejectingclaims of federal preemption,” Brewer’sstatement said. “I am more adamant thanever that states do have a complimentaryrole in enforcing federal immigration laws.”Joaquin vehemently disagreed, sayingthat unlike the Whiting case, S.B 1070 didnot involve the application of a federal savingsclause.“The right to enforce immigration law[is] the issue at the heart of current legalchallenges to SB 1070, Arizona’s racial profilinglaw,” Joaquin said. “State legislatorswho consider [Whiting] a free pass to enactand implement legislation targeting immigrantsare gravely mistaken.”Conrad agreed.“Let’s be clear: the decision does not givestates or local governments a blank checkto pass any and every immigration law,” shesaid. “Immigration regulation continues tobe predominantly a federal concern. Stateand local laws that do not carefully and assiduouslytrack federal law, or that merelymasquerade as ‘licensing’ laws, would stillbe preempted.”Questions or comments can be directed to thewriter at: kimberly.atkins@lawyersusaonline.comNLRB takes aim at employers’ response to social mediaNLRB – Continued from page 1Pullman & Comley in Hartford, Conn.“There are almost 700 million people onFacebook – at least a few of them are goingto be union members.”With social media in the sights of theNLRB, employers should review their policiesand think carefully about enforcement,Schwartz said.“Right now, there have been a bunch ofcomplaints, and we’re still waiting for somejudicial or Board decisions addressingthese issues,” he said.Policy and enforcementExperts agree that employers should havea social media policy in place, and that itshould be reviewed in light of the NLRB’s recentmoves.“Involve the employees in the creationof the policy,” Schwartz suggested. “Letthem feel like they have some input, and besure to communicate the policy so everyoneis aware of it.”A policy should cover issues like protectingtrade secrets, said Brian Hall, a partner atPorter Wright in Columbus, Ohio who focuseson employment law issues, but “it’s veryclear that the NLRB is taking a negative viewof any social media policy that includes nondisparagementtype language in it. So if employersare creating a policy right now, theyshould avoid using that type of terminology.”He counsels clients who have disparagementclauses in their social media policiesto add a disclaimer that “the policy willnot be interpreted or enforced in a mannercontrary to your ability to [exercise] yourrights under the NLRA.”Just as important as having a policy inplace is enforcement, Hall said, and “beingrealistic about it.”Schwartz agreed.“Decide discipline on a case-by-case basis,”he said. “Not all tweets are createdequal, and not all uses of Facebook shouldlead to being fired.”Employers who overreact to an employee’ssocial media usage could end up withtheir punishment going viral, Schwartzsaid. “Employers need to be careful not tooverreact about social media.”The NLRB has initiated several actionsagainst employers who have taken employmentactions based on an employee’suse of social media, but it has alsorefused to take action where it determinedan employee’s behavior didn’tconstitute protected activity:• In February, the Board settledcharges with a Connecticut ambulancecompany that fired an employee for criticizingher supervisor on her Facebookpage. In its complaint, the NLRB claimedthat American Medical Response of Connecticutviolated federal law because theemployee was engaged in protected activitywhen she posted the commentsabout her supervisor.Under the terms of the settlement, thecompany agreed to revise its social mediapolicy to “ensure that [it does] notimproperly restrict employees from discussingtheir wages, hours and workingconditions with co-workers and otherswhile not at work, and that [it] would notdiscipline or discharge employees for engagingin such discussions,” accordingto the NLRB.• A reporter with the Arizona DailyStar filed a charge with the NLRB after hewas terminated for tweeting commentsabout his employer. Newspaper employeeswere encouraged to use socialmedia in an effort to drive readers to itssite, and the employee’s tweeting wasdone using his work computer and company-providedcell phone. The employee’sTwitter account was linked to hisFacebook and MySpace pages so thatAnd keep in mind that the enforcementactions “don’t mean that employees cansay anything they want about the employer,”Segalis noted. “Employees can’t defamea supervisor or use slurs, or make false orRecent NLRB activitywhen he tweeted, the message was postedon the other sites as well.Although the employee was warnedabout making comments critical of theDaily Star’s television staff, he tweetedthings like: “What?/?/?/? No overnighthomicide? WTF? You’re slacking Tucson,”in his capacity as a public safety reporter.The NLRB Division of Advice said theemployer’s actions did not violate theNLRA because the employee did not engagein protected concerted activity andwas instead discharged for misconduct.The decision not to take action makessense, said Brian Hall, a partner at PorterWright in Columbus, Ohio who focuseson employment law issues.“The reporter was really tweetingthings that by almost anybody’s definitionwere offensive and did not implicatethe workplace,” he said.• The NLRB filed a complaint againstHispanics United of Buffalo after five employeesof the nonprofit were fired overFacebook postings.According to the complaint, an employeeposted to her Facebook page allegationsby a co-worker that employeesdid not do enough to help the organization’slow-income clients. Link: I have PDFOther employees responded to the initialpost by defending their job performanceand complaining about their workloadand staffing issues. According to theNLRB, Hispanics United terminated the fiveemployees who responded to the initialpost, claiming that their comments constitutedharassment of the first employee.In its complaint, the NLRB said theFacebook discussion was “protectedconcerted activity … because it involveda conversation among co-workers abouttheir terms and conditions of employment,including their job performanceand staffing levels.”• Most recently, the NLRB filed a complaintafter a Chicago area BMW salesmanwas terminated for a Facebook postcriticizing the quality of food and beveragesat a dealership event.The salesman complained that salescommissions would suffer as a result ofthe sub-par event, which was held to promotea new BMW model. He went onFacebook, posting pictures and commentingabout how only hot dogs andbottled water were offered to customerswho attended the event. A managerasked the salesperson to remove theposts (which were accessible by otheremployees), and although he immediatelycomplied, he was terminated, accordingto the Board.The employee’s Facebook posting wasa protected concerted activity, the NLRBsaid in a press release, “because it involveda discussion among employeesabout their terms and conditions of employment,and did not lose protectionbased on the nature of the comments.”This action “troubles me the most,” saidHall, who is also the author of the EmployerLaw Report blog. To reach a protectedconcerted activity, “you have to connect Ato B to C to D,” eventually leading from hotdogs to sales commissions, he said.– Correy Stephensondefamatory statements, and if they lash outat a supervisor but aren’t communicatingwith other employees then the statementsare likely not protected.”But the NLRB has taken a broad approachto what constitutes protected, concertedactivity, Segalis said.Questions or comments can be directed to the writer at:correy.stephenson@lawyersusaonline.com