News

Case Summaries

Workers' Comp

[05/15] Harman Mining Co. v. Director, Office of Workers' Compensation Programs, DOL
In a case in which an administrative law judge (ALJ) found that a man suffered disabling obstructive lung disease arising out of his work as a coal miner and awarded his widow black lung benefits payable by his former employer, a petition for review is denied, where the award of benefits found support in the record and accorded with the Administrative Procedure Act, as the ALJ properly evaluated the appropriate weight to accord conflicting medical opinions.

[05/15] DMS Services, Inc. v. Superior Court (Zurich Services Corp.)
In a suit by a provider of commercial janitorial services against the third-party administrator for its workers' compensation insurance claims, a petition for writ of mandate seeking to vacate the trial court's order compelling arbitration is granted, where: 1) none of the plaintiffs' agreements with their administrator contained an arbitration clause; and 2) the trial court erred in compelling arbitration under the doctrine of equitable estoppel, because the plaintiffs' claims against the administrator were not founded in, or inextricably intertwined with, the deductible agreement with the insurer, which contained the arbitration clause.

[05/03] Bready v. CSX Transportation, Inc.
By memorandum, it is held that the Appellate Division properly granted the defendant's motion for summary judgment dismissing the complaint in each of two consolidated cases, where the defendant made a prima facie showing that it did not breach the duty of care applicable under the Federal Employer's Liability Act.

[05/01] Matter of Zamora
A claim for workers' compensation benefits is denied, where: 1) the Workers' Compensation Board need not infer, from the finding that a claimant withdrew from his or her employment due to an accident at the work place, that his or her post-accident loss of wages is attributable to physical limitations caused by the accident; and 2) there was substantial evidence to support the Board's determination that the claimant had not made a reasonable search for work consistent with her physical restrictions.

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Evidence

[05/16] US v. Cervantes
In a case in which police surveilled the defendant's car, stopped him for a traffic violation, and impounded and searched the car without a warrant, the district court's denial of a motion to suppress cocaine found in the car is reversed, where neither the automobile exception not the community caretaking exception to the warrant requirement applied.

[05/15] SEC v. Jasper
In an SEC civil enforcement action against the CFO of a publicly traded company who had illegally backdated employee stock options, the district court's remedies and sanctions are affirmed, where: 1) it was not an abuse of discretion for the district court to admit a Form 10-K into evidence, as it was a properly authenticated business record; 2) the district court was within its discretion to admit a number of the defendant's Fifth Amendment invocations and to instruct the jury that it could draw an adverse inference from them; 3) the district court's exclusion of hearsay testimony under FRE 804(b)(1) was not an abuse of discretion; 4) there was no attorney misconduct warranting a new trial; and 5) the defendant had no right to have a jury find all predicate facts to the remedy of disgorgement.

[05/15] US v. DeLeon
Conviction and sentence for second-degree murder are affirmed, where: 1) statements made by the victim, the defendant's eight-year-old stepson, to a social worker about prior acts of abuse were nontestimonial, so their admission did not violate the defendant's Sixth Amendment Confrontation Clause rights; 2) several hearsay rulings were proper; 3) the district court did not abuse its discretion by limiting the scope of a defense expert witness's testimony on redirect; 4) evidence that the defendant relied heavily on corporal punishment was properly admitted under Federal Rule of Evidence 404(b); and 5) under 18 USC section 3559(f), the age of the victim is a sentencing factor that the district court properly determined based on a preponderance of the evidence.

[05/11] US v. Hieng
In a prosecution for conspiring to manufacture and distribute, manufacturing and cultivating, and aiding and abetting the cultivation of more than 1,000 marijuana plants, the conviction and sentence are affirmed, where: 1) the district court committed no plain error in failing to inquire, sua sponte, whether the defendant had waived his rights to object to the admission of statements he made during plea discussions; 2) the district court did not err by allowing a law enforcement agent to testify regarding statements the defendant made through an interpreter; 3) hearsay exceptions made testimony about the total number of marijuana plants admissible; and 4) it was not clear error to refuse to apply the safety valve of 18 USC section 3553(f) in sentencing.

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Elder Law

[05/14] Cash v. Winn
In a suit for overtime wages brought by an in-home caretaker who was not a licensed or trained nurse, judgment in favor of the plaintiff is reversed, where: 1) the plaintiff performed the duties of a personal attendant and did not spend more than 20 percent of her weekly work time performing other duties, and so was exempt from overtime; and 2) a "regular administration of health care services" exception does not exist under California law as applied to a household employee who is not licensed or trained to perform nursing or other medical services.

[04/30] Bush v. Horizon West
In an action in which one plaintiff sued the operators of a skilled nursing facility for elder abuse based on their alleged neglect in providing her care and treatment at the facility and the plaintiff's daughter sued the same defendants for negligent infliction of emotional distress based on her alleged observation of the harm they caused her mother through their neglect, the trial court's denial of the defendants' motion to compel arbitration is affirmed, where: 1) CCP section 1281.2(c) was not preempted by the Federal Arbitration Act; 2) the parties did not agree that section 1281.2(c) would not apply; 3) the daughter was not bound by the arbitration agreement; and 4) there was no abuse of discretion in the trial court's determination that there was a possibility of conflicting rulings.

[04/24] Knox v. Dean
In a dispute over a conservator's actions with regard to the plaintiff's elderly father, the trial court's grant of the conservator's motion for summary judgment is reversed but his motion for summary adjudication is granted in part, where: 1) the conservator's res judicata defense applied only to acts before a fourth accounting, and the plaintiff's allegations were sufficient to state causes of action against him; and 2) because the conservator failed to establish a complete defense as to certain causes of action, summary judgment was improper, although summary adjudication was properly entered as to the causes of action for fraud and constructive fraud.

[03/23] Thomas v. Westlake
In a suit against an investment advisor and related defendants for churning the account of an elderly client, an order denying the defendants' petition to compel arbitration is reversed, where: 1) the trial court erred by relying on Code of Civil Procedure section 1281.2(c) to deny the petition to compel arbitration, because all defendants were entitled to enforce the arbitration clauses as parties to the agreements containing the clauses or as agents of such parties; and 2) all of the claims pleaded in the operative complaint were arbitrable.

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Remedies

[05/15] SEC v. Jasper
In an SEC civil enforcement action against the CFO of a publicly traded company who had illegally backdated employee stock options, the district court's remedies and sanctions are affirmed, where: 1) it was not an abuse of discretion for the district court to admit a Form 10-K into evidence, as it was a properly authenticated business record; 2) the district court was within its discretion to admit a number of the defendant's Fifth Amendment invocations and to instruct the jury that it could draw an adverse inference from them; 3) the district court's exclusion of hearsay testimony under FRE 804(b)(1) was not an abuse of discretion; 4) there was no attorney misconduct warranting a new trial; and 5) the defendant had no right to have a jury find all predicate facts to the remedy of disgorgement.

[05/14] Apple, Inc. v. Samsung Electronics Co., Ltd.
In a patent infringement action brought by Apple against Samsung, the district court's denial of a preliminary injunction is affirmed with respect to three of the four patents at issue, where: 1) as to two iPhone design patents and a patent on a "bounce-back" feature, the district court correctly determined that there would be no irreparable harm to Apple from Samsung's infringement; but 2) the district court erred in concluding that there was likely to be a substantial question as to the validity of an iPad design patent, so remand was necessary for findings on other questions bearing on injunctive relief.

[05/14] Gaylord v. US
In a copyright infringement action by the holder of copyright on statues that are part of the Korean War Memorial, brought against the U.S. Postal Service, which issued stamps bearing a photograph of the statutes, the judgment of the Court of Federal Claims awarding the plaintiff $5,000 is vacated and the case remanded, where the Claims Court incorrectly limited the plaintiff's damages to the Postal Service’s highest past license payment and denied prejudgment interest.

[05/11] Banco Popular de Puerto Rico v. Asociacion de Compositores y Editores de Musica Latinoamericana
In consolidated copyright infringement cases, the First Circuit holds that: 1) the district court did not abuse its discretion by allowing a music publisher and its affiliate to litigate copyright infringement claims as to four songs used in live Christmas concerts produced by a bank, as those songs were not part of a settlement agreement; 2) the evidence of infringement was sufficient; 3) the district court did not err by twice denying the bank the opportunity to introduce certain evidence; 4) the district court correctly found that a publisher owned a song and that parties infringed its rights by retroactively licensing the performance rights to that song, and the award of damages was proper; and 5) the bank was not entitled to an offset or return of the monies it paid in performance fees for two songs.

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Ethics & Professional Responsibility

[04/04] Maracich v. Spears
In a suit by car buyers against lawyers who obtained the buyers' personal information from car delearships so that the lawyers could identify plaintiffs for a suit against the dealerships under the South Carolina Regulation of Manufacturers, Distributors, and Dealers Act, summary judgment against the buyers is affirmed where their claims fail as a matter of law, because although the lawyers engaged in soliciting for purposes of the federal Driver's Privacy Protection Act of 1994 (DPPA), that solicitation was entirely consistent with state law, was integral to, and was inextricably intertwined with the lawyers' permissible use of the buyers' personal information pursuant to the litigation exception to the DPPA.

[03/05] Hayes v. State of New York Attorney Grievance Committee
In a challenge to a New York regulation requiring a prescribed disclaimer statement to be made by attorneys who state that they are certified as a specialist in a particular area of the law, the district court's judgment against the plaintiff is reversed, where: 1) enforcement of two components of the required disclaimer statement would violate the First Amendment; and 2) the absence of standards guiding administrators of the regulation rendered it unconstitutionally vague as applied to the plaintiff.

[01/12] US v. Lopez-Avila
In an appeal from a judgment of the district court denying defendant's motion to dismiss her drug trafficking indictment, judgment is affirmed where a mistrial due to the prosecutor's misconduct in misleading the court during his cross-examination of the defendant does not provide double jeopardy relief to defendant.

[12/22] Blystone v. Horn
In cross-appeals from a judgment of the district court denying defendant habeas relief from his conviction for first-degree murder, but granting him such relief on his death sentence, judgment is affirmed where: 1) trial counsel was ineffective for failing to investigate, develop, or introduce expert mental health testimony and institutional records in mitigation during the sentencing phase, and that the state court's decision to the contrary was unreasonable; and 2) evidence of prosecutorial misconduct during the guilt phase of trial was not "newly discovered" and therefore defendant was not entitled to a Rule 59(e) motion.

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Professional Malpractice

[04/17] Cyr v. McGovran
In a suit against a seller's real estate agent and broker for professional negligence in failing to assure that the sellers did not grant to their lender an option inconsistent with buyers' options on the same properties, the trial court's grant of the defendants' motion for summary judgment is affirmed, where the complaint was not filed within the two-year limitations period applicable to actions for professional negligence, as: 1) the cause of action accrued more than two years before the complaint was filed; and 2) the three-year limitations period of Code of Civil Procedure section 338(b) was not applicable, since the gravamen of the cause of action was not injury to the properties, but injury to the plaintiffs' option rights to purchase the properties.

[03/22] E.M.A. v. Cansler
In a contest between the victim of medical malpractice and the State of North Carolina over the proceeds from a lump-sum settlement of the malpractice action, when North Carolina, through its state Medicaid program, paid medical and health care expenses on the victim's behalf, the district court's grant of summary judgment to the state is vacated and the case remanded for determination of the proper amount of North Carolina's Medicaid lien, where the North Carolina third-party liability statutes, as applied, failed to comply with federal Medicaid law that limited North Carolina's recovery to settlement proceeds representing payment for medical expenses, and the percentage of the lump-sum settlement allocable to medical expenses had to be determined by judicial determination.

[03/16] Scharer v. San Luis Rey Equine Hospital, Inc.
In a suit against a veterinary hospital and veterinarians for malpractice arising out of the death of the plaintiff's horse, the district court's grant of the defendants' motions for summary judgment is affirmed, where: 1) the statute of limitations applicable to claims for veterinary malpractice contained in Code of Civil Procedure section 340(c) applied to the plaintiff's claims; 2) the tolling provisions of Code of Civil Procedure section 364 did not apply to the plaintiff's claims because they were for property damage and did not fall within the meaning of "professional negligence"; and 3) equitable tolling did not apply.

[03/08] Garcia v. ConMed Corp.
In a product liability action brought after the plaintiff suffered injuries during a tonsillectomy in which a doctor used an electrocautery device powered by a generator manufactured by the defendant, who prevailed in the action, the trial court's denial of the plaintiff's motion for a new trial is affirmed, where improper argument by the defendant's attorney did not result in a miscarriage of justice under article VI, section 13 of the California Constitution because it was not reasonably probable that the plaintiff would have obtained a more favorable verdict in the absence of the argument, and thus any error was harmless.

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Ethics & Disciplinary

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Admiralty

[03/20] Roberts v. Sea-Land Services, Inc.
In a suit under the Longshore and Harbor Workers' Compensation Act for injuries sustained in 2002 at an Alaska marine terminal while working for the respondent, an award of benefits at the fiscal year 2002 statutory maximum rate is affirmed, as an employee is "newly awarded compensation" under the Act when he or she first becomes disabled and thereby becomes statutorily entitled to benefits, no matter whether, or when, a compensation order issues on his or her behalf.

[03/16] Aggarao v. MOL Ship Management Co., Ltd.
In a suit by a Filipino seaman for injuries sustained on a ship in the Chesapeake Bay, the district court's ruling on dismissal for improper venue is: 1) affirmed in part, where the doctrine of equitable estoppel required the plaintiff to arbitrate his claims in the Philippines pursuant to an enforceable arbitration agreement; and 2) vacated in part, where a) the district court was not constrained to dismiss this case, and b) the district court was not obliged to deny the plaintiff's injunction request as moot when it deemed his claims to be arbitrable.

[03/16] Markel American Insurance Co. v. Diaz-Santiago
In litigation between the owner of a ship and the ship's mortgagor in which the mortgagor sought an award of attorney's fees, costs, and expenses arising from its procured release of the ship after its confiscation and defense of the validity of an insurance policy on the ship, the district court's grant of summary judgment to the mortgagor is affirmed, where: 1) challenges to the district court's denial of the owner's strike and protective order motions were without merit; 2) contractual agreements between the parties as to maintenance of insurance and liability for costs were valid and binding; and 3) the district court properly denied the owner's Rule 59(e) motion to alter or amend the judgment.

[03/08] Otal Investments, Ltd. v. M.V. Tricolor
In a suit arising from a maritime accident involving three ships: 1) the district court's allocation of liability is affirmed, where the district court carefully considered and thoroughly explained its liability formula and its allocation percentages; 2) the district court is reversed on the issue of whether the owners of one of the ships were entitled to limit their liability under the Limitation of Liability Act, where it committed clear in finding that the ship owners had knowledge or privity of the acts of negligence that caused the accident; and 3) the case is remanded for the district court to make a specific factual determination of that issue.

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Injury & Tort Law

[05/11] Al Shimari v. CACI International, Inc.
In suits by former prisoners at Abu Ghraib prison in Iraq, alleging that the defendant prison contractors and certain of their employees were liable in common law tort and under the Alien Tort Statute for torturing and abusing them during their incarceration, consolidated appeals by the defendants are dismissed, where: 1) there was no independent basis for appellate jurisdiction premised on the law-of-war defense, Saleh preemption, or Mangold immunity, so the Fourth Circuit was without pendent jurisdiction to further consider the appellants' contentions that the plaintiffs' claims presented nonjusticiable political questions; and 2) the exercise of jurisdiction was precluded regardless of whether the appellants' political question defense was inextricably intertwined with any of the three proffered bases for jurisdiction, or whether those bases were similarly interdependent with one another.

[05/07] Bettencourt v. Hennessey Industries, Inc.
In a suit claiming that the use of the defendant's machines to grind asbestos-containing brake linings resulted in exposure to airborne asbestos fibers that caused injury, the trial court's judgment in favor of the defendant on all causes of action is reversed in part, where it was error to grant judgment on the pleadings to the defendant and an abuse of discretion to deny the plaintiffs leave to amend their complaints with respect to their causes of action for strict products liability and negligence.

[05/03] Beckwith v. Dahl
In a suit alleging intentional interference with an expected inheritance (IIEI) and deceit by false promise, the trial court's order sustaining a demurrer and dismissing the case is reversed, where: 1) the tort of IIEI is recognized as a valid cause of action; and 2) the complaint alleged sufficient facts to support a claim for deceit, as all the elements of promissory fraud were adequately alleged, but there were insufficient facts stated to allege IIEI.

[05/03] Bready v. CSX Transportation, Inc.
By memorandum, it is held that the Appellate Division properly granted the defendant's motion for summary judgment dismissing the complaint in each of two consolidated cases, where the defendant made a prima facie showing that it did not breach the duty of care applicable under the Federal Employer's Liability Act.

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