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ATTORNEY FEES An absence of damages means no fees for class Following recent precedent, the Oklahoma Supreme Court held on Sept. 16 that, where a jury found that a defendant had violated Oklahoma statute, but inflicted zero damages, the plaintiffs were not the prevailing party as far as award of attorney fees was concerned. Tibbetts v. Sight ‘n Sound Appliance Ctrs. Inc., No. 2003 OK 72. A class of consumers sued Sight ‘n Sound Appliance Centers Inc., arguing that the appliance store violated the Oklahoma Consumer Protection Act by engaging in “bait and switch” advertising. A jury found that Sight ‘n Sound had violated the act, but that the plaintiffs had sustained zero damages. Both sides moved for attorney fees; the trial court denied both motions and both sides appealed. The Oklahoma Court of Civil Appeals reversed, holding that the plaintiffs were entitled to attorney fees. On remand, the trial court awarded $375,000 in attorney fees. Sight ‘n Sound sought review by the state’s high court. Reversing the fee award, the high court held that “no rational argument can be made that a $375,000.00 attorney fee award is reasonable when counsel recovers absolutely no monetary relief for the client where the suit seeks approximately 1 million dollars, and only monetary relief is sought. The only reasonable fee here, as a matter of law, is no fee at all.” Full text of the decision CIVIL PRACTICE Settlement deal can’t be ignored without reason A district court should have heard evidence on the validity of an alleged settlement agreement before allowing a case to proceed to trial, the 1st U.S. Circuit Court of Appeals held on Sept. 12. Bandera v. City of Quincy, No. 02-2307. The city of Quincy, Mass., hired Kathleen Bandera to direct a community policing commission. She claimed she was excluded from meetings and subjected to graphic sexual talk by male officers. She also alleged that the mayor and police chief failed to take action. Ultimately, Bandera was fired. She sued the city, the mayor and the police chief in a Massachusetts federal district court, alleging gender discrimination including sexual harassment and wrongful termination. Before trial, the parties agreed to dismissal in exchange for a cash payment. However, Bandera disavowed the agreement and refused to sign the typed version. Without holding a hearing, the court denied the city’s motion to enforce the agreement. The trial jury ruled in favor of the city but awarded Bandera $135,000 in punitive damages. The city appealed, arguing that the court erred in refusing to enforce the agreement without an evidentiary hearing. The 1st Circuit agreed, stating that the trial court denied the enforcement motion without having supplied an adequate reason for refusing to enforce the agreement. “The district court cannot summarily deny enforcement simply because material facts are in dispute: the task is to resolve the dispute,” the court said. The case was remanded for a determination as to whether a valid settlement had been reached by the parties. Full text of the decision Separate jury challenges is right of co-defendants Co-defendants who are subject to an automatic apportionment instruction are “antagonistic” and entitled to separate peremptory challenges, the Kentucky Supreme Court held on Sept. 18. Sommerkamp v. Linton, No. 2001-SC-0431-DG. Susan Linton saw a series of physicians about persistent pain in her forearm. After her treatments failed, she was diagnosed with a rare vascular condition. Her foot, thumb and part of another finger were later amputated. She sued two doctors, one medical arts association and one medical center, claiming that they failed to diagnose and treat her problem appropriately. The medical center settled before trial. The trial court granted each of the remaining co-defendants separate peremptory jury challenges. After trial, the jury returned a defense verdict. The Kentucky Court of Appeals reversed, stating that it was wrong to grant separate jury challenges. Reinstating the verdict, the state’s highest court noted that the relevant Kentucky rule says that “co-parties having antagonistic interests” shall have separate peremptory challenges. The trial court’s treatment of the peremptory challenges was not an abuse of discretion nor clearly erroneous, since the parties had retained separate counsel and the court had intended to issue apportionment instructions. Full text of the decision CONSTITUTIONAL LAW Striking black jurors OK if reason is race-neutral A trial court committed no error in allowing peremptory striking of prospective black jurors because the plaintiffs making a Batson challenge offered no rebuttal to the defendant’s proffered race-neutral reasons, the Mississippi Supreme Court held on Sept. 18. Burnett v. Fulton, No. 2000-CA-01241-SCT. Kathy and Phillip Burnett filed a medical malpractice action against Lori Fulton. The Burnetts used all their peremptory strikes on white jurors; Fulton used all her strikes on blacks. Each side challenged the other’s strikes, alleging racial motivation in violation of the U.S. Supreme Court’s decision in Batson v. Kentucky, 476 U.S. 79 (1986). After the jury returned a defense verdict, the Burnetts appealed, arguing that the trial court erred in allowing Fulton’s strikes of the black prospective jurors. Affirming, the high court held that the Burnetts’ failure to rebut Fulton’s race-neutral reasons was critical: “The Burnetts were not required to rebut, but by offering no other arguments regarding the peremptory strikes, they forced the trial court to base its decision solely upon the reasons given by Dr. Fulton.” It added that Fulton’s proffered reasons-inattentiveness, demeanor, sleeping during voir dire, lack of eye contact, educational level and hostility-had been upheld as valid, race-neutral reasons for strikes. Full text of the decision State worker addressing public issue can’t be fired A state mental hospital administrator’s status as a public employee did not negate her First Amendment protections when speaking on matters of public concern in an internal memorandum, the 6th U.S. Circuit Court of Appeals held on Sept. 17. Rodgers v. Banks, No. 01-4034. Carolyn Rodgers, an administrator at the Lewis Center, an Ohio state mental facility, distributed a memorandum critical of a plan to convert patient areas into offices for doctors, maintaining that it could affect the facility’s accreditation. Elizabeth Banks, the CEO of the Lewis Center, fired Rodgers, stating that the memo was a factor in Rodgers’ termination. Rodgers sued, alleging violations of First Amendment rights. A trial court granted summary judgment to Banks, and Rodgers appealed. The 6th Circuit reversed, holding that the district court erred in determining that Rodgers’ memo did not deal with a matter of “public concern,” a requirement for a First Amendment claim. The court held that patient conditions and accreditation of state hospitals were matters of public concern. Full text of the decision HEALTH LAW Medical tester may owe physician’s duty of care When an employer-sponsored physician told an employee his fitness-for-duty EKG “look[ed] fine,” she may have offered advice and thereby created a physician-patient duty of care, the Connecticut Supreme Court held on Sept. 23. Dugan v. Mobile Medical Testing Services Inc., No. SC 16658. Joseph Dugan was a firefighter employed by the city of Yonkers, N.Y., which retained Mobile Medical Services to provide physical exams to its firefighters to determine their fitness for duty. After receiving an EKG, the examining physician told Dugan: “Everything looks fine. We only found one irregular heartbeat.” Less than two months later he had a heart attack. Eight days later, he received Mobile Medical’s test results, which suggested he see another doctor for “abnormal” EKG results. Dugan sued Mobile Medical, alleging negligent failure to exercise reasonable care. The trial court granted the defendants’ motion for summary judgment on the ground that no physician-patient relationship existed between employees and medical services firms examining their fitness for duty. Reversing, the state Supreme Court agreed with the trial court that where there is no treatment or advice, there is no duty of care. Consequently, if Mobile Medical personnel did not offer treatment or advice during the fitness-for-duty examination then no physician-patient relationship was established and there was no duty of care. However, this was a factual question that needed to be determined. The court remanded the case to determine if the physician’s statement concerning the plaintiff’s EKG constituted treatment or advice. Full text of the decision IMMIGRATION LAW INS can’t send aliens to land unable to take them Agreeing with the decision of a Seattle federal court judge, the 9th U.S. Circuit Court of Appeals ruled on Sept. 17 that the United States may not remove aliens to a country that does not have a functioning government to accept them. Ali v. Ashcroft, No. 03-35096. Four aliens filed a petition for writ of habeas corpus to enjoin the Immigration and Naturalization Service (INS) from removing them to Somalia. Somalia does not have a government recognized by the United States. The district court granted a temporary restraining order enjoining the removal of the aliens to Somalia or any other country that cannot accept them. The temporary order later became a permanent one. 8 U.S.C. 1231(b)(2) allows the attorney general to remove an alien either to a country that the alien designates or a country of which the alien is a subject, a national or a citizen only if the country is willing to accept the person. If neither option is available, the statute provides for “additional removal countries,” not explicitly requiring acceptance by the country in those cases. Concluding that the latter option implicitly contains the acceptance requirement, the 9th Circuit stated that the INS should not be able to circumvent the requirements of the statute by using the latter option. Full text of the decision INSURANCE LAW HMOs fail to recoup costs from Big Tobacco Health care plans’ pursuit of subrogation claims against the tobacco companies on behalf of plan subscribers was essentially identical to the claims the plans pursued on their own behalf and should not have been allowed to proceed, the 2d U.S. Circuit Court of Appeals ruled on Sept. 16. Blue Cross and Blue Shield of New Jersey Inc. v. Philip Morris USA Inc., nos. 02-7276, -7394 and -7424. Twenty Blue Cross/Blue Shield health-care plans and their subsidiaries from around the country filed suit against a dozen tobacco companies, seeking to recoup the costs of providing health care to plan subscribers as a result of smoking-related conditions. The plans alleged causes of action under the Racketeer Influenced and Corrupt Organizations Act, common law and the New York consumer-protection statute. They also brought subrogation claims under New York law. Some of the cases were dismissed, but a jury awarded the plans more than $17 million in compensatory damages to Empire Blue Cross and Blue Shield. The 2d Circuit reversed in part and certified two questions to the New York Court of Appeals. The court ruled that the district court judge erred in not granting the defendants’ motion for judgment as a matter of law on the subrogation claims. The subrogated action was virtually identical to the action that Empire had brought on its own behalf, the court ruled. The 2d Circuit certified two questions for New York’s high court: Were claims such as those alleged by the health-care plans too remote to permit suit under the consumer-protection statute? And, if they were not too remote, was proof of individual harm required? Full text of the decision TORTS Offensive sexual conduct isn’t invasion of privacy Answering a certified question from a federal court, the Florida Supreme Court held on Sept. 18 that pleadings of unwelcome sexual conduct do not state a cause of action for the tort of invasion of privacy. Allstate Ins. Co. v. Ginsberg, No. SC00-2614. Following a Florida state court action involving the failure to state a claim for invasion of privacy, the 11th U.S. Circuit Court of Appeals heard a declaratory decree action based on the case. Because the Florida Supreme Court had never addressed whether allegations of unwelcome offensive conduct, which included physical touching and sexual comments, constituted invasion of privacy, the 11th Circuit certified the question to the Florida Supreme Court. The tort of invasion of privacy includes “physically or electronically intruding into one’s private quarters.” Answering the certified question in the negative, the state’s high court declared that this definition referred to a place and not to a body part. “[T]his is a tort in which the focus is the right of a private person to be free from public gaze.” Full text of the decision Doc can base defense on suicidal teen’s negligence A psychiatrist may assert a comparative negligence defense in a medical malpractice based on the doctor’s alleged negligence in assessing a patient’s risk of suicide after discharge from the doctor’s care, the Kansas Supreme Court ruled on Sept. 19. Maunz v. Perales, No. 88,124. Dirk Maunz, a teenager diagnosed as suffering from depression, was referred to Dr. Mercedes Perales two days after Dirk was found with a loaded shotgun pointed at his mouth. The psychiatrist determined that the suicide attempt had been a call for attention. She recommended new medication and agreed to his release. Dirk shot himself four days later. His parents filed a wrongful death and survival suit against Perales, alleging failure to assess Dirk’s risk of suicide properly. The trial court allowed the jury to consider Dirk’s possible comparative fault, and the jury found him to be 79% at fault and Perales 21% at fault. The state Supreme Court affirmed. Though a mentally disturbed patient is not capable of adhering to a reasonable person’s standard of self-care, it is right to hold the patient responsible for conduct unreasonable in light of his mental capacity. Since the plaintiffs had not alleged that the teen’s discharge was negligent, the trial court did not err in allowing the jury to consider Dirk’s conduct. Full text of the decision

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