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CIVIL PRACTICE Discretion abuse needed judicial estoppel review The standard for review for judicial estoppel is abuse of discretion, the 1st U.S. Circuit Court of Appeals held on an issue of first impression on July 7. Alternative System Concepts Inc. v. Synopsys Inc., No. 03-1406. Alternative System Concepts (ASC) markets programs used in production of computer chips. In a letter of understanding, Language for Design Automation (LDA), hired ASC to act as distributor of its Proton product line for six months, and the parties agreed to negotiate a permanent agreement. However, Synopsys acquired LDA, terminated the interim agreement and broke off negotiations for a permanent agreement. ASC sued Synopsys in a New Hampshire federal court, alleging breach of promise. Synopsys moved to dismiss, arguing that the statute of frauds barred the breach-of-contract claim, since it was based on an oral contract between the parties. ASC’s claim, however, was not that Synopsys breached an agreement to enter into a long-term contract, but that it breached the agreement to negotiate in good faith. The court denied the motion to dismiss. In a summary judgment motion, ASC alleged that the parties had orally entered into a permanent agreement, which Synopsys had breached. Invoking the doctrine of judicial estoppel, the court held that ASC was barred from advancing a on summary judgment a position that contradicted the one advanced previously. ASC appealed. The 1st Circuit affirmed the judicial estoppel ruling, holding that the standard for reviewing a trial court’s application of judicial estoppel is abuse of discretion. The court concluded that there was no abuse in this case. Full text of the decision CONSTITUTIONAL LAW No hearing witness is no due process rights breach A prisoner’s right to due process was not violated when prison officials refused to allow him to call a witness in his prison disciplinary hearing, the 4th U.S. Circuit Court of Appeals held on July 1. Brown v. Braxton, No. 03-6763. DeMarcus Brown was found guilty of assault at a prison disciplinary hearing. At the hearing, Brown sought to call his alleged victim as a defense witness, but prison officials refused, citing concern for the alleged victim’s safety. Brown filed a petition for habeas corpus, which a Virginia federal court dismissed. The 4th Circuit affirmed, holding that Brown had failed to show that his defense would have been helped by the alleged victim’s testimony and that the U.S. Supreme Court had held that courts “should be hesitant to substitute our judgments for those of prison administrators.” In this case, legitimate penological interests warranted denial of the defendant’s request. The court was not in a position to rule whether protection of an inmate “ran afoul of the constraints of due process.” Full text of the decision No breach of jury’s rights in rental car damages cap Reducing a $900,000 jury verdict to $20,000, the Michigan Supreme Court held on July 6 that a Michigan law, which limited civil liability against rental car companies to $20,000 per passenger, was constitutional. Philips v. Mirac Inc., No. 121831. Regeana Hervey died in an automobile accident in a vehicle owned by Mirac Inc. doing business as Enterprise Rent-A-Car. Hervey’s estate sued, and a jury returned a $900,000 verdict, subject to a $150,000/$250,000 high-low agreement. Under MCL 257.401(3), liability to lessors of automobiles for periods of less than 30 days was limited to $20,000 per passenger. A trial court held that the Michigan law was unconstitutional because it denied citizens their right to access to the courts under the Michigan Constitution. An intermediate appellate court reversed, and the estate appealed. Affirming, the Michigan Supreme Court held the statute was constitutional, holding that the state’s interest in the economic viability of the rental car industry satisfied rational basis review, and that the law did not violate citizens’ rights to jury trials, equal protection or due process. Full text of the decision Judge’s factual inquiry breached Constitution A sentence-enhancement on a drug conviction based on a judge’s fact-finding regarding quantity and obstruction violated the Sixth Amendment according to the U.S. Supreme Court’s recent Blakely decision, the 7th U.S. Circuit Court of Appeals held on July 9. USA v. Booker, No. 03-4225. A Wisconsin federal jury found Freddie Booker guilty of possessing with intent to distribute at least 50 grams of cocaine base, for which the statute prescribes a prison sentence ranging from 10 years to life. The judge found by a preponderance of evidence that the defendant had obstructed justice and had distributed 566 grams more than the 92.5 grams that the jury found. Under the federal sentencing guidelines, this finding of additional quantity increased his base offense level by four levels, thereby increasing his minimum prison term to 360 years. Booker appealed, arguing that the sentence violated the Sixth Amendment insofar as it allowed the judge to find facts other than those relating to criminal history to determine sentence. The 7th Circuit reversed. Noting that district judges are currently “faced with an avalanche of motions for resentencing in the light of Blakely v. Washington, 2004 WL 1402697 (U.S. June 24, 2004),” the court held that the application of the federal guidelines in Booker’s case violated the Sixth Amendment as interpreted in Blakely. Full text of the decision DAMAGES Taking money from old lady was statutory theft A court erred in setting aside a jury’s treble damage award to the estate of a woman whose neighbor committed statutory theft when she convinced the elderly woman to give her money, the Connecticut Supreme Court held in a decision to be published on July 13. Howard v. MacDonald, No. SC17136. At the age of 90 Hedwig Williams was unable to handle her affairs. Her nephew, William Howard, managed her finances. Upon learning that Williams’ neighbor, Bonnie MacDonald, had convinced her to give her money by coaching Williams at the bank and by prompting her to make phone calls and write letters indicating she wanted to give MacDonald money, Howard sued the neighbor, alleging breach of fiduciary duty, statutory theft and exercise of undue influence. The jury turned in a verdict for the estate on all three counts and awarded the estate more than $376,000 in damages. The trial court set aside the statutory theft verdict, for which the jury had awarded treble damages of $282,777, and the fiduciary duty verdict, finding there was insufficient evidence to support a finding of a fiduciary relationship between Williams and MacDonald. The Connecticut Supreme Court reversed, holding that it was an abuse of discretion for the court to set aside the statutory theft verdict. Even applying the clear and convincing evidence standard of proof, Howard had established statutory theft, since there was abundant evidence of Williams’ lack of clarity about the relevant transactions, and MacDonald had admitted to having coached Williams while knowing that Howard was responsible for her finances. Full text of the decision EMPLOYMENT VA medical resident can’t seek money for firing In a suit claiming that a discharge violated the Constitution, the 11th U.S. Circuit Court of Appeals held on July 8 that 38 U.S.C. Sec. 7406, which provides a comprehensive statutory scheme for Department of Veterans Affairs (VA) employees, bars a former employee of a federal agency from obtaining monetary relief. Hardison v. Cohen, No. 03-13162. On June 14, 2002, the head of the podiatry department at the Miami Department of Veterans Affairs Medical Center fired a medical resident in the podiatric residency program for misconduct and poor performance of his medical duties. After the resident’s requests for a pretermination hearing and a post-termination appeal were denied, he sued for denial of due process under the Fifth Amendment. A magistrate judge recommended that the suit be dismissed. Because objections were filed too late, the Florida federal court adopted the magistrate judge’s report and recommendations. The 11th Circuit affirmed. Title 38 excludes interns and residents from the remedial processes afforded to permanent VA employees. The court concluded that the exclusion of the plaintiff from the class of employees entitled to relief in the statute showed that the plaintiff was not entitled to any relief whatsoever. Full text of the decision FAMILY LAW No alimony liability for dead husband’s estate Despite a supplemental stipulation between former spouses that a wife would continue to receive alimony payments until she died or remarried, the husband’s estate was not liable for post-mortem alimony payments, the Massachusetts Supreme Judicial Court held on July 7. Cohan v. Feuer, No. SJC-09083. Barbara and Henry Cohan were married in 1955, and divorced in 1973. Subsequently, the couple executed a supplemental agreement to their New Jersey divorce decree, which provided that Henry Cohan would provide alimony that was to “cease upon the death or remarriage of [Barbara Cohan].” After Henry Cohan died, Barbara Cohan filed an action seeking a declaratory judgment that, based on the agreement, the estate was liable to her for the alimony payments until she either died or remarried. Henry Cohan’s children from his second marriage-the beneficiaries of the estate-intervened in opposition. A trial court denied Barbara Cohan’s request for summary judgment, holding that the agreement was ambiguous. However an intermediate appellate court reversed, holding that the agreement required post-mortem alimony. The estate appealed. Reversing, the Massachusetts Supreme Judicial Court noted that there was a presumption that alimony payments ended upon the death of the obligated party. Although the court recognized that parties could contract otherwise, thereby allowing the presumption to be rebutted, it held that that was not the case with the Cohans. The court said, “In the present case, we merely decide that the language of this particular stipulation, interpreted in light of the facts surrounding this particular dispute, does not legally obligate the decedent’s estate to continue paying the plaintiff alimony until her death or remarriage.” Full text of the decision INTELLECTUAL PROPERTY Pro-Microsoft keyboard patent decision reversed Questions of material fact remained about a document purporting to constitute prior art, the U.S. Court of Appeals for the Federal Circuit ruled on July 6, reversing a district court judgment in favor of Microsoft Corp. that had invalidated another company’s patents for a V-shaped keyboard for personal computers. Type- right Keyboard Corp. v. Microsoft Corp., nos. 03-1197; 03-1255. Typeright Keyboard Corp. sued Microsoft Corp. in a California federal district court, alleging that the software giant was infringing on its patents for a V-shaped keyboard with separate left- and right-wing hand clusters. Microsoft moved for summary judgment, countering that a document by a German firm showed the design, and constituted prior art, allegedly having been presented at a trade show in 1986. A district court granted Microsoft summary judgment, invalidating the patents, and Typeright appealed. Reversing the summary judgment in favor of Microsoft, the Federal Circuit held that material questions remained about the undated German document, and whether it constituted prior art. Noting there was evidence challenging the credibility of one of Microsoft’s key witnesses, the court held that the patent should not have been invalidated at summary judgment, and said, “Under such circumstances summary judgment should not have been granted, particularly in view of the clear and convincing evidence standard required for invalidity.” Full text of the decision WORKERS’ COMPENSATION Pacemaker surgery death is work-related injury A surviving spouse is entitled to death benefits where her husband died as a result of a pacemaker operation that was a precursor to back surgery for a work-related injury, the Oklahoma Supreme Court found on July 6. In the Matter of the Death of Gray, No. 98237. Joe Gray injured his back while on the job. After a spinal diagnostic procedure, a neurosurgeon recommended surgery. Because Gray had a 20-year-old pacemaker, the neurosurgeon sent him to another doctor for consultation and pre-surgery screening, due to the fear that he might not be able to handle extensive back surgery. The new doctor recommended that the pulse generator of the pacemaker be removed and replaced prior to back surgery. Gray died during the procedure to remove the pulse generator. His wife filed a claim in workers’ compensation court to seek surviving spouse death benefits. The court denied the claim. A three-judge panel of the court affirmed. The Court of Civil Appeals affirmed. The Supreme Court reversed. Upon reviewing medical records and expert witness testimony, the court concluded that a work-related back injury had necessitated the back surgery, but before it could be carried out, a pacemaker operation had to be performed because the pacemaker operation was a means of covering the back surgeon’s liability if Gray had died during the back surgery. Full text of the decision

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