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CIVIL PRACTICE Late finding of lab error won’t extend time to file Because “concealment” requires knowledge, a provision extending Florida’s four-year statute of repose in medical malpractice cases where “fraud, concealment, or intentional misrepresentation” prevents discovery of an injury does not apply to a case alleging negligent diagnosis by a clinical laboratory, the Florida Supreme Court said on Sept. 25. Nehme v. Smithkline Beecham Clinical Lab. Inc., No. SC02-1680. In 1994, Rhonda Nehme had a pap smear taken at the county public health department. The sample was sent to SmithKline, which gave it to a cytotechnologist for analysis. No abnormalities were reported. In 1997, however, it was discovered that the sample showed substantial evidence of malignancy. Nehme died soon after from cervical cancer. In 1999-more than five years after the smear-her estate sued the lab for malpractice. The trial court granted a defense motion for summary judgment, ruling that the state’s four-year statute of repose barred the action. The estate argued for an extension on the ground that Nehme could not have made an earlier discovery of the error. Finding that statutory language supported the defendants but that case law seemed to favor Nehme, a state appeals court certified the question to Florida’s highest court. Relying on definitions from law and everyday dictionaries, the state Supreme Court said that the term “concealment” requires knowledge and/or intentional conduct. Affirming, it said that a “negligent diagnosis, without more, does not constitute concealment.” Full text of the decision ELECTION LAW 4th Circuit voids part of N. Carolina election law New North Carolina election laws regulating political action committee advocacy are unconstitutional to the extent that they go beyond examining the explicit words a group uses to support or oppose a candidate and rely instead on the context of the activities, the 4th U.S. Circuit Court of Appeals ruled on Sept. 23. North Carolina Right to Life v. Leake, No. 02-2052. The suit was filed by North Carolina Right to Life (NCRL) and two affiliated committees. The state had promulgated the laws in response to earlier NCRL litigation. NCRL now argued that four of the new provisions are unconstitutional: (1) the provision outlining the method for determining whether a communication supports or opposes the nomination or election of a particular candidate; (2) the provision that presumes a political committee’s major purpose is to support or oppose a candidate when the entity contributes or expends more than $3,000; (3) the $4,000 contribution limit to independent expenditure political action committees; and (4) the provision requiring a disclaimer in ads that support or oppose a candidate. The district court ruled the first and third provisions were unconstitutional, that the second was constitutional to the extent it was severed from the provision mentioned in the first issue and that the challenge to the fourth was moot. Both sides appealed. The 4th Circuit agreed that the first provision was unconstitutional because the “context prong” of the “express advocacy” test for expenditures impermissibly examined an entity’s advocacy activities, rather than the explicit words used. The context prong relies entirely on the perception of the audience, something the U.S. Supreme Court had warned against in Buckley v. Valeo, 424 U.S. 1 (1976). The 4th Circuit disagreed on the second provision, however, ruling that its monetary trigger failed to account for the overall activities of an entity and could be used as evidence of an entity’s major purpose, regardless of whether it was severed from the other offending provision. It upheld the lower court’s rulings on the third and fourth as well. Full text of the decision EVIDENCE Test showing coke use is subject to privilege A trial court’s admission of a toxicology report showing that a criminal defendant had ingested cocaine was improper, the Hawaii Supreme Court said on Sept. 24, because the trial court failed to learn if the defendant had waived the physician-patient privilege shielding the report. State v. Moses, No. 23028. Police stopped Peter Moses as he was breaking into a car. In an ensuing struggle, Moses suffered a gunshot wound. He was arrested and taken to a hospital where, on his own initiative, a doctor performed a toxicology study that showed that Moses had ingested cocaine. During a trial arising from the gunfight, the prosecution sought admission of the toxicology study. Finding that it was not a confidential communication, the trial court admitted it, never reaching the question of whether the privilege was waived. Moses was convicted, but based on the admission of the report, the state’s intermediate appeals court vacated the verdict and remanded for a new trial. Affirming in part, the high court ruled the case should be remanded not for a new trial, but for an evidentiary hearing to determine whether Moses had waived his privilege. The court refused to take judicial notice of two letters from the public defender, which the prosecution said showed a voluntary waiver of the privilege, noting that neither letter was part of the record on appeal. Full text of the decision FAMILY LAW Mother may revoke parental-rights surrender Resolving what it called an “irreconcilable conflict” between two sections of the state code, the Indiana Supreme Court held on Sept. 25 that a parent’s voluntary termination of parental rights was binding only if acknowledged in open court, unless the parent had failed to appear. In re M.N., No. 17S03-0209-JV-470. After authorities decided to terminate Mary Neal’s rights to her children, M.N. and H.N., Neal initially agreed, then changed her mind and opposed the proceeding. When a trial court refused to allow her to revoke her consent, she appealed. After an intermediate court reversed, holding that the state code mandated that she was not bound by her earlier consent because it was not given in open court, the state’s Department of Children and Families appealed. Affirming, the high court noted what it called the “irreconcilable conflict” between code Section 31-35-1-6, which mandates that voluntary terminations be made in open court, except in cases where the termination is made before proper authorities and the parent has been advised of the consequences, and Section 31-35-1-12, which allows the parent to revoke an out-of-court termination given under fraud or duress or where the parent was incompetent. “Absent a clear legislative directive that the State’s interests outweigh the interests of parents,” the court said, “we must conclude that the Legislature intended that Section 6 prevail over Section 12.” Full text of the decision GOVERNMENT Fed. Cir. voids VA rule shortening claims time A new department of Veterans Affairs regulation impermissibly shortens the time set by Congress for veteran claimants to respond to information requests, the U.S. Court of Appeals for the Federal Circuit said on Sept. 22. Paralyzed Veterans of America v. Secretary of Veterans’ Affairs, nos. 02-7007-7010. Congress clarified the assistance the department must provide to an individual claiming veterans’ benefits when it enacted the Veterans Claims Assistance Act of 2000. After the VA enacted new regulations relating to its duty to assist, four veterans’ groups filed petitions contending that several of the measures were arbitrary, capricious, abusive of discretion or are contrary to law and invalid under the Administrative Procedure Act. The court rejected all of the veterans’ arguments, except a challenge to 38 C.F.R. 3.159(b). That regulation provides that if a claimant has not responded to a VA request for information and evidence within 30 days, the VA can decide the claim in less than a year, based on information available at that time, subject to possible readjudication if the claimant provides the information within a year of the request. The circuit found that the rule was inconsistent with, and undermines, 38 U.S.C. 5103(a), which requires the claimant to submit requested information to the VA within one year. It added that the denial of a claim, short of a year, with the promise to reopen, did not satisfy congressional requirements. Full text of the decision INSURANCE LAW Assault on twin towers was one attack, not two Upholding a New York federal court grant of summary judgment, the 2d U.S. Circuit Court of Appeals ruled on Sept. 26 that for insurance purposes the Sept. 11, 2001, assault on the World Trade Center was one attack, not two. World Trade Center Properties LLC v. Hartford Fire Ins. Co., nos. 02-9279, 02-9280 et. al. In 2001, Silverstein Properties Inc. (and related entities) signed a 99-year lease on the center. In July 2001, Silverstein obtained insurance from several carriers providing coverage of $3.5 billion “per occurrence.” One of the carriers filed suit in October 2001, seeking a declaration that the 9/11 attack was a single insurance loss. Silverstein counterclaimed, seeking a ruling that the attack was more than one occurrence. “Complicating the resolution of this question,” the 2d Circuit said, “is the fact that as of September 11, 2001, only one of the many insurers that bound coverage on the WTC had issued a final policy, necessitating an individualized inquiry to determine the terms of the insurance binders issued by each insurer.” On appeal, Silverstein argued that New York law established that an incident like the attack constituted multiple events. Rejecting that contention, the 2d Circuit held that New York law was not settled on the issue. Noting ambiguities in one of the binders, the panel said, “the meaning of the undefined term ‘occurrence’ is an open question as to which reasonable finders of fact could reach different conclusions.” Full text of the decision LEGAL PROFESSION Citing abuse of power, Ohio disbars attorney Concluding that she had used her attorney status to threaten, slander and manipulate private and public persons, the Ohio Supreme Court on Sept. 24 permanently disbarred a suburban Toledo lawyer. Office of Disciplinary Counsel v. Baumgartner, No. 2002-2237. The disciplinary counsel alleged that Oak Harbor, Ohio, lawyer Elsebeth M. Baumgartner had made numerous unfounded accusations of criminal and unethical activity against private individuals and public officials and also compromised her clients’ interests. The state Supreme Court added that she had attempted to retaliate against anyone who defied her and allegedly tried to extort money from a client. The matter was first before the high court’s Board of Commissioners on Grievances and Discipline, which appointed a panel to hear the cause. Finding several ethical rules violations, the panel and board recommended the permanent disbarment. Reviewing the recommendation and her objections, the high court found what it called “ample evidence” to support many of the findings, noting that while Baumgartner admitted almost all facts, she never acknowledged that her behavior constituted misconduct. While it pondered whether she suffered from mental illness, the court said that it could not consider this potential mitigating factor because Baumgartner refused to provide evidence from a treating psychologist. Full text of the decision TORTS No postal service duty to shield girl from abuser The United States did not assume a voluntary duty to protect a young girl from being sexually abused by a postal worker when it assigned the letter carrier to desk duty pending investigation of sexual abuse charges and then later reassigned him to a route in a nearby suburb, the 7th U.S. Circuit Court of Appeals said on Sept. 24. LM, Guardian on behalf of KM, a minor v. U.S., No. 02-3583. The U.S. Postal Service had removed the carrier from his route and assigned him to desk duty after discovering that he had sexually abused at least 10 young girls. Later that year, the carrier was reassigned to a route. Eight years later, a father sued the U.S. under the Federal Tort Claims Act, claiming that the carrier had sexually abused his daughter. The suit alleged that the postal service had breached an affirmative duty to protect the children who lived along the carrier’s route. Disagreeing, an Illinois federal court dismissed the case. Affirming, the 7th Circuit concluded that the service had not undertaken a voluntary duty to protect the girl when it assigned the carrier to desk duty with the knowledge of the risk that he posed. Allowing reassignment itself to create liability would discourage the postal service from taking any precautionary steps in similar situations, the court declared. Full text of the decision Defamatory testimony absolutely privileged Having lost a custody battle for his daughter, an Alaska father filed a defamation action against the friends who testified against him. Affirming the dismissal of that suit, the Alaska Supreme Court ruled on Sept. 26 that the friends’ testimony was absolutely privileged and that they are immune from civil liability. Lawson v. Helmer, No. 5739. According to the court, Lee Lawson sued Ernest and Linda Helmer, after they spoke to investigators and testified on behalf of Lawson’s ex-girlfriend during the fight for custody of Lawson’s child. The Helmers testified that Lawson once sexually assaulted Linda and that he may have deliberately wounded himself with a gun in an attempt to discredit the girlfriend. After the lower court ordered joint legal custody, with primary physical custody going to the girlfriend, Lawson sued the Helmers for defamation. Ruling that their testimony was absolutely privileged, even if defamatory, the high court explained that such testimony is immune from prosecution because of the public policy of encouraging a witness’s full and uninhibited testimony and the belief that cross-examination and the threat of criminal prosecution will deter perjury. Full text of the decision WORKERS’ COMP. Wash. where-to-file rule not jurisdictional in effect Reinstating a workers’ compensation claim that had been thrown out by a trial court, and rejected by the state’s intermediate court of appeals, the Washington Supreme Court held on Sept. 25 that a statute dictating the proper county for filing an appeal relates only to venue and does not deprive a state trial court of subject-matter jurisdiction to hear the case. Dougherty v. Dep’t of Labor and Industries, No. 72958-1. Because the worker, Daniel Dougherty, lived out of state when his claim was filed, his lawyer appealed the compensation board’s denial not to the statutorily specified county for out-of-state claimants but to the superior court in the county where her office was. That court ruled that it had no subject-matter jurisdiction and declined on that basis to grant a change of venue. An intermediate appeals court affirmed. The state’s top court, however, noted that the statute, RCW 51.52.110, provides that the appeal of a Board of Industrial Insurance Appeals ruling must be taken to the superior court in the county where the worker resides, to the superior court in the county where the injury occurred, or, if neither county is in Washington state, then to Thurston County. It concluded that because all of the state’s superior courts have the same subject-matter jurisdiction to hear the same types of controversies, the statute refers to only venue, not jurisdiction. Full text of the decision

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