Thank you for sharing!

Your article was successfully shared with the contacts you provided.
BANKRUPTCY LAW Mailing claim day before deadline not ‘excusable’ Where a creditor’s attorney had a clerk mail proof of claim against a debtor the day before it was due and did not realize the clerk sent it second-day mail, the creditor’s fault was key in finding an absence of “excusable neglect,” the 7th U.S. Circuit Court of Appeals held on Aug. 27. In re Kmart Corp., No. 03-4084. Kmart Corp. filed a Chapter 11 bankruptcy petition on Jan. 22, 2002. The bankruptcy court ordered that July 31, 2002, was the deadline for filing proofs of claim. Wilhemina Simmons had fallen in a Kmart store in 2001 and sought to pursue a $750,000 prepetition-date personal injury claim. Notice of the bar date never personally reached Simmons at her correct address, but her attorney had actual notice of it, and had filed proofs for other creditors in a timely fashion. The attorney instructed his clerk to mail Simmons’ proof the day before the bar date, but the clerk waited until 2 p.m., at which point the postal clerk marked it for second-day delivery, so Simmons’ proof was one day late. The attorney neither followed up nor verified that the proof arrived on time. Simmons learned her claim was late on Sept. 23, 2002, when she received Kmart’s notice that it was time-barred. Simmons’ motion to deem her claim timely was denied. An Illinois federal court consolidated her subsequent appeals and upheld the bankruptcy court’s rulings. The 7th Circuit affirmed. Simmons called the reason for the delay “an innocent mistake in mailing,” but the court called that reason “a poor one,” discussing Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993) and its four-factor analysis of “excusable neglect” under Rule 9006(b)(1). One factor is whether the delay was within the reasonable control of the movant. Full text of the decision CIVIL PRACTICE Peremptory challenge discretion is limited Reversing a $3.4 million medical malpractice judgment, the Connecticut Appellate Court held on Aug. 24 that a trial court erred in granting additional peremptory challenges to a plaintiff so she would have an equal number of strikes to the multiple defendants in her case. Carrano v. Yale-New Haven Hospital, No. AC 22644. Mary Carrano sued Yale-New Haven Hospital and others following her husband’s death after surgery. During voir dire, the trial court gave Carrano additional peremptory challenges because otherwise the multiple defendants, who did not have a “unity of interests,” would get 20 individual peremptory challenges against Carrano’s eight. The trial court declared that this would constitute “a miscarriage of justice.” After a jury found for Carrano, awarding approximately $3.4 million in damages, the defendants appealed, arguing, among other things, that the trial court erred in granting the additional strikes. The Connecticut Appellate Court reversed, holding a trial judge’s discretion to grant additional peremptory challenges to be very limited. The appellate court said, “[T]he court was constrained by the number of peremptory challenges allowed by �� 51-241 and 51-243 (a). We accordingly conclude that the court improperly awarded the plaintiff additional peremptory challenges.” CONSTITUTIONAL LAW No porn possession order unconstitutionally vague A trial court erred in revoking the probation of a convicted sex offender who possessed copies of Stuff for Men and Maxim, because the court’s order that the probationer not “possess or view any pornographic or sexually explicit material” was unconstitutionally vague, Indiana’s 4th District Court of Appeals ruled on Aug. 27. Foster v. Indiana, No. 02A04-0312-CR-644. Jeremy Foster was convicted of felony sexual misconduct with a minor, and was sentenced to prison, to be followed by probation. A condition of his probation was that he “not possess or view any pornographic or sexually explicit material.” When a home detention officer visited Foster’s home, he found copies of Stuff for Men and Maxim on Foster’s bedside table. The state moved to revoke his probation, and a trial court granted the motion, ordering Foster back to prison. Foster appealed, arguing that the order was unconstitutionally vague. Indiana’s appeals court reversed, holding the order to be unconstitutionally vague as to content, since the condition of probation did not define “sexually explicit or pornographic.” The court said, “The condition is not sufficiently clear to inform Foster of what conduct would result in his being returned to prison . . . .As a result, we conclude that the condition is void for vagueness and that the trial court abused its discretion by revoking Foster’s probation.” Court’s OK not needed for life-support removal Kentucky’s Living Will Directive Act is constitutional, and allows a judicially appointed guardian or other designated surrogate to remove a ward’s life support, the Kentucky Supreme Court ruled on Aug. 26. Woods v. Commonwealth, No. 1999-SC-0773. Matthew Woods was a mentally challenged 55-year-old who had been in the care of various state agencies since his late 20s. After suffering a heart attack in 1995, Woods was placed on life support. It was generally agreed that even with the ventilator, Woods would die in two to 10 years and that he would never regain consciousness. After a recommendation from the hospital ethics committee, Woods’ guardian at the time, the Kentucky Cabinet for Human Resources, asked for judicial approval for the removal of Woods’ life support. An ad litem was appointed to represent Woods. The district court ruled that the statute allowed the state to seek removal of Woods’ life support without advance judicial approval. Woods’ ad litem appealed to the circuit court, which dismissed the case as moot because Woods had since died of natural causes. The appeals court reversed. On remand, the circuit court found the statute to be constitutional, and the appeals court affirmed. The Kentucky Supreme Court affirmed. If there is no guardian, but the physicians, family and ethics committee all agree with the surrogate’s�in this case, the state’s�decision, there is no need to appoint a guardian. If there is a guardian, and all parties agree, there is no need for judicial approval. If there is disagreement, however, the parties may petition the courts. Withdrawal of life support will be prohibited absent clear and convincing evidence that the patient is permanently unconscious or in a persistent vegetative state and that withdrawal of life support is in the patient’s best interest. The burden of proof was met in this case. The state would have been able to remove Woods from life support had he not died. Full text of the decision CRIMINAL PRACTICE Adverse effect of counsel removal must be decided An “adverse-effect” standard for finding whether a criminal defendant had been prejudiced by the erroneous disqualification of his counsel of choice when substitute counsel provided adequate assistance was adopted by the 7th U.S. Circuit Court of Appeals on Aug. 27. Rodriguez v. Chandler, No. 03-4147. A trial court granted the prosecutor’s motion to disqualify Neftaly Rodriquez’s counsel in his murder trial. The ruling was based on the state of Illinois’ representations that Detective John McMurray, another client of Rodriguez’s attorney, was “an integral part of the case” against Rodriquez and would be testifying against him. Rodriquez retained a new defense attorney, but McMurray ultimately did not testify at the trial nor at his co-defendants’ separate trials. Rodriquez was convicted and argued to the Appellate Court of Illinois that his attorney was improperly disqualified. The court found the disqualification not to be an error. Rodriquez then petitioned for a writ of habeas corpus, which was issued by an Illinois federal court, which held that it was unreasonable for the state tribunal to conclude that a potential conflict of interest existed given the low likelihood that McMurray had material evidence to give against Rodriguez. The state appealed. The 7th Circuit remanded, noting that the presumption in favor of choice of counsel can be overcome only by a serious potential for conflict, but that there are open questions as to whether erroneous disqualifications may be deemed harmless and as to how a defendant proves prejudice when substitute counsel provides constitutionally adequate assistance. The 7th Circuit adopted the “adverse-effect standard,” which “lies midway between automatic reversal and requiring proof of a likely difference in the litigation’s outcome.” Adverse effect here means “an identifiable difference in the quality of representation between the disqualified counsel and the [trial] attorney” which need not have been “great enough to undermine confidence in the outcome.” Full text of the decision Sentence reconsideration by trial court is possible The trial court had jurisdiction under Sec. 13A-5-9.1, a statute that made an amendment to the Habitual Felony Offender Act (HFOA) apply retroactively, to hear a defendant’s motion seeking reconsideration of his sentence, the Alabama Supreme Court ruled on Aug. 27 in a question of first impression. Ex parte State of Alabama, No. 1030128. In 1990, a defendant was convicted of trafficking in controlled substances and sentenced according to the HFOA to life imprisonment without the possibility of parole. In 2000, the HFOA was amended to provide further eligibility for parole consideration of nonviolent offenders. The next year, the Legislature passed Act No. 2001-977, later codified as Sec. 13A-5-9.1, to make the amendment retroactive. Concluding that there were problems with the act, the Department of Corrections never implemented it. In response to the defendant’s motions to have his sentence reviewed, the trial court declared the amendment unconstitutional because it impermissibly delegated power to another branch of government. The Court of Criminal Appeals dismissed the defendant’s appeal. The Alabama Supreme Court reversed, holding that the Legislature has the authority to alter the jurisdiction of the trial courts. Although a trial court normally loses jurisdiction to modify the sentence in a criminal case if the request for modification is not filed within 30 days of sentencing, the court found that Sec. 13A-5-9.1, by allowing retroactive application of a statute governing reconsideration of sentencing, gives a judge jurisdiction to reopen a case after the 30-day limit. HEALTH LAW IRAs can count against Medicaid eligibility A state’s classification of self-funded retirement assets like IRAs as “resources” in Medicaid eligibility determinations for institutionalized spouses does not violate the Medicaid Catastrophic Care Act (MCCA), the 10th U.S. Circuit Court of Appeals held on Aug. 24. Houghton v. Reinertson, No. 03-1074. In 2001, Colorado revised the eligibility guidelines used to calculate a married couple’s resources when a spouse enters a nursing home, and began for the first time classifying self-funded retirement accounts such as IRAs, 401(k)s or 403(b)s as countable “resources” for the purposes of determining an institutionalized spouse’s Medicaid eligibility. Although Stepheny Sellers had been approved for Medicaid when she entered a nursing home in 1996, she became ineligible as a result of the new rule due to the reclassification of her husband’s retirement assets. Four married couples, including the Sellerses, sued pursuant to 42 U.S.C. � 1983 to challenge the revised rules, which, they claimed, violate the Medicaid Catastrophic Care Act. A Colorado federal court granted summary judgment to the state. The Sellers appealed. The 10th Circuit affirmed in part and reversed in part, noting in this issue of first impression that Congress had neither foreclosed nor mandated a particular classification for retirement accounts. Therefore Congress intended to leave this matter to the states. The circuit court held that the new Colorado rule’s classification of the assets does not violate the MCCA. But the MCCA does not permit the state to reclassify assets a couple possessed at the time of the initial eligibility determination. The court reversed and remanded, directing that the Sellers’ summary judgment motion be granted. Full text of the decision TORTS No emotional distress claim under Title VII law When a plaintiff avails herself of the statutory cause of action for emotional damages for sexual harassment, she cannot also seek damages for intentional infliction of emotional distress based on the same underlying actions, the Texas Supreme Court ruled on Aug. 27. Hoffmann-La Roche Inc. v. Zeltwanger, No. 02-0120. Joan Zeltwanger sued her former employer, Hoffmann-La Roche, and won on her claims of sexual harassment under the Texas Commission on Human Rights Act, which is modeled after Title VII of the 1964 Civil Rights Act, and for intentional infliction of emotional distress. She was awarded more than $800,000 in front and back pay on the former claim, and more than $9.5 million in actual and punitive damages for the emotional distress claims. Roche challenged the emotional distress award, saying Zeltwanger used the claim to circumvent the Texas human rights act’s cap on punitive damages, based on a sliding-scale commensurate to the size of the company. The appeals court affirmed. The Supreme Court reversed. If the gravamen of a plaintiff’s complaint is the type of wrong that the statutory remedy was meant to cover, a plaintiff cannot maintain an intentional infliction claim regardless of whether he or she succeeds on, or even makes, a statutory claim. Full text of the decision WORKERS’ COMPENSATION Only professional nurse can can be reimbursed The Tennessee workers’ compensation statute provision requiring employers to pay for the “nursing services” of employees who have suffered a compensable injury, applies only to services rendered by a professional nurse, not a family caregiver, the Tennessee Supreme Court ruled on Aug. 19. Sullivan v. Edwards Oil Co., No. M2003-01560-SC-R3-CV. Michelle Sullivan suffered traumatic brain injury after being shot in the face during a robbery of the convenience store where she worked. Under the workers’ compensation statute, Sullivan received payment for past and future medical expenses from her employer, Edwards Oil, but Edwards declined to reimburse Sullivan’s mother, her court-appointed conservator and primary caregiver, for her caregiving expenses. The trial court upheld the denial. The Tennessee Supreme Court affirmed, finding the meaning of reimbursable “nursing services” clear-those services provided by a professional nurse in the care of a patient-and presuming that the Legislature intended a similar meaning. The court noted that the life-altering decision to take care of a disabled family member is commendable, and may eventually be more cost-effective than institutional care. The court suggested that the Legislature insert a new category of compensable services to the workers’ compensation statute. Full text of the decision

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.