Appellate Law & Practice

CA1: Fratboys win IIED lawsuit

Fiacco v. Sigma Alpha Epsilon Fraternity, No. 07-1695.  The plaintiff in this case worked for the University of Maine in charge of the “Office of Community Standards.”  He was investigating this frat.  The frat decided to investigate him back, and found a bunch of embarrassing things.  The the fratboys went to work and anonymously mailed the stuff to the university administration.  (The First seems particularly keen to keep the names of the members of the frat secret.)  Applying state law on Intentional Affliction of Emotional Distress, the First says that Fiacco was a public official, and that he must show “actual malice.”  In this case, the fratboys basically were trashing this guy with court records, so he can’t really claim that their dirt wasn’t true, so no malice attaches.

CA1: EMTALA covers people that are almost at the hospital

Morales v. Sociedad Espanola de Auxilio Mutuo et al, No. 07-1951 (4/18/08) holds that for purposes of the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd, “an individual can come to the emergency department for EMTALA purposes without physically arriving on the hospital's grounds as long as the individual is en route to the hospital and the emergency department has been notified of her imminent arrival.” See also the regulation at 42 C.F.R. § 489.24(b)(4) (2003).  While the statute and regulation is vague, Selya ends up looking at what he perceives to be statutory intent. A very clear statement from Selya.

The facts of this case are really disturbing. A woman was having an nonviable ectopic pregnancy, but, amongst other things, when she reported pains and was being transported to the emergency room by ambulance, her doctor hung up on the paramedics when they couldn’t assure him that she had insurance. The frustrated paramedics went to a different hospital. 

I guess the only interesting thing about this is that Selya says that canons of statutory construction should be applied to regulations. However, since canons are applied whenever the court wants them to be, I don’t really know where that gets us.

In an odd turn of events, Torruella dissents saying that the statute is clear, and that “comes” means “arrives” and she had not “arrived.”

CA1: required findings of fact in a bench trial

Torres Lazarini v. US, No. 06-2634 is an affirmance of an FTCA/Medical Malpractice case (resolved by a bench trial) against the VA which is governed by Puerto Rican substantive law.

The big issues seem to be whether the District Court improperly considered prior lawsuits as evidence of the defendant’s character.  The First says that the findings of fact by the judge didn’t bear that out.  Likewise, under FRCP 52(a)  failure to mention one expert wasn’t fatal to the judge’s findings of fact, because it is “clear” that the District Court was really crediting one expert over another.

CA1: Contribution train wreck

Rio Mar Assoc. L.P. v. UHS of Puerto Rico, Nos. 07-1868, 07-2005 (4/10/08).  In this case, Selya needs to reduce the use of big words, since there are complex issues of civil procedure involving members of the upper middle class.  This case begins with a vacationer being malpracticed upon by a Puerto Rican hospital after being negligently rescued by lifeguards at the Westin. The hospital settled with the plaintiff for 1.4 million, and then filed a cross-claim against the hotel.  (Not an unusual scenario.  This flavor, the court explains is a “Pierringer Relese” see “See Pierringer v. Hoger, 124 N.W.2d 106, 112 (Wis. 1963) (interpreting such a release as discharging the settling defendant entirely and discharging the non-settling defendant from responsibility for the settling defendant's proportionate share of liability)”)     The judge decided that the cross-claim should be heard in a later trial, but refused to order the release of the settlement agreement (or rather, didn’t act on a motion to compel disclosure). 

CA1: the interaction of sentencing, bankruptcy, collateral consequences of a non-conviction , and criminal law

Larson v. Howell, No. 07-1925.  Two homestead exemption in a row.  This one is more interesting the previous one, because “as a matter of first impression, [requires the First] to determine whether the state crime of negligent vehicular homicide qualifies as a "criminal act" which would cap a debtor's homestead exemption to $125,000 under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA"), Pub. L. No. 109-8, § 322(a), 119 Stat. 23, 97 (codified at 11 U.S.C. § 522(q)(1)(B)(iv)).”  While the debtor admitted facts in the above case, the case was continued for a year while a civil suit continued.  The debtor claimed the state-law-based homestead exemption of $500,000.

The First holds that after the debtor was convicted of “negligent homicide” in state court under Mass. Gen. Laws ch. 90, § 24G(b), the mental state implicit in admissions pursuant to that section trigger the cap.

People that hate America stop reading here.  Everyone else read on.

Large corporations as heros of punitive damages

As you know, the imagination of the public is captured by awards of “punitive damages” and “jackpot justice.”  Most of this stuff is just propaganda spread by lawyers and various thinktanks on behalf of their clients.  Not that there is anything wrong with that. Heck, if you can’t be a real lawyer, just write about “policy” and “tort reform.”

But, Wait a Second points to a very large award of punitive damages (first reduced, and later affirmed) in favor of Motorola. Because the defendant didn’t take the proceedings seriously (even though they were represented by large firms), I doubt that the Supremes would take this up.

I wonder if all the normal “Tort Reform” mouthpieces are going to condemn the Second Circuit’s decision as “judicial activism” and jackpot justice and condemn their lawyers as being “trial lawyers.”  After all, punitive damages over a billion dollars seem quite large.

CA1: Insurer was noticed too late for products liability policy to benefit plaintiff that prevailed against bankrupt manufacturer

Edwards v. Lexington Insurance, No. 07-1414.  This is one of my favorite areas of law: insurance coverage litigation. So, let’s lay out the facts.  In a first lawsuit, the plaintiff claimed that he was injured by a defective protect.  He serves the insurance company (but out of time), but still obtains a default judgment and the insured party (or so the defendant thinks) goes into bankruptcy.  The he sues the insurer under Maine's reach and apply statute, 24-A M.R.S.A. § 2904 (2000) seeking to collect from them.

If you were really committed to working at a firm such as this you would have read on by now.

CA1: Informant ensnared in FTCA/Bivens trap

Velez-Diaz v. US,  No. 06-2537.  This case was first before the First in Velez-Diaz v. Vega-Irizarry, 421 F.3d 71, 77-80 (2005) (our coverage here).  Let me get on a soapbox for a second, and say that reading this case makes me understand why people in the “ghetto” wear shirts that say “stop snitching.”  Here are the facts:

This is an appeal from the district court's dismissal of a case under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346 (2000), arising out of the death of Antonio Velez-Garcia. Velez, arrested for drug possession in January 2003, agreed to serve as an undercover FBI cooperating witness. He was murdered by a gang member in March 2003 while assisting the FBI in a sting operation directed against gang-related drug trafficking in Puerto Rico.  Claiming that the FBI agents had mishandled Velez' assignment, his family first sought damages in a suit against named FBI agents in their individual capacities...

and here is the conclusion

Velez' death while helping law enforcement agents is a tragedy, and one might prefer that his relatives had their day in court. This is so even though undercover work in the drug world is inherently high risk and winning a such a law suit would normally not be easy. But the filing requirements are clear; six months was ample time to file; and that must be the end of the matter.

Obviously, crime is bad (and also illegal in many states), but is getting murdered in the course of cooperating with the government better?

Start readin'

CA1: relying on other doctors’ interpretations is okay for Daubert purposes

Crowe v. Marchand, No. 07-1463 affirms a medical malpractice verdict in favor of the defendant.  As usual, both parties had their experts.  The plaintiff argues that the defendant’s expert shouldn’t have been allowed to testify because they didn’t actually look at the X-rays and MRIs at issue (but relied on other doctors’ analysis of them).  The First gives some patter about Daubert, and concludes that relying on a report of other doctors is a good enough basis so as to not constitute and abuse of discretion. 

CA1: punitive damages and defamatory U-5s

Galarneau v. Merrill Lynch, No. 06-2410.  The plaintiff was fairly sophisticated stock broker at Merrill that handled accounts of the moderately wealthy, and developed somewhat (though not extremely) sophisticated tax strategies for them.  They vetted the strategies with Merrill’s in-house counsel who seemed to approve.  Her strategies were initially successful, but a client complained and sued and settled.  Merrill thought she was “churning,” (see, lawyers are not the only ones that do it) Merrill fired her and told the NASD that she had engaged in “inappropriate bond trading.”

There were a number of communications between counsel for the plaintiff and defendant that were excluded under FRE 403, but the First basically says that this wasn’t an abuse of discretion.

Merrill had conducted an internal and external investigation.  It also notified the Maine Securities division and NASD via a form U-5.

The First notes that under Maine law, a statement in a U-5 is conditionally privileged under Maine law, and “While a conditional (or qualified) privilege does not change the actionable quality of words published, it rebuts the inference of malice that is imputed in the absence of the privilege...[and] A conditional privilege may be abused if the defamatory statement is made with reckless disregard as to its falsity. 

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