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CIVIL PRACTICE New test for disfavored preliminary injunctions A showing on the “balance of harms” in addition to the old “modified likelihood of success on the merits” standard is necessary for the issuance of a disfavored preliminary injunction, the 10th U.S. Circuit Court of Appeals held on Nov. 12. O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, No. 0-2323. Uniao Do Vegetal and its members sought legally to use hoasca sacramentally, while the United States seeks to prohibit this use, under the Controlled Substances Act and the U.N. Convention on Psychotropic Substances. A New Mexico federal court granted a preliminary injunction under the Religious Freedom Restoration Act, enjoining the U.S. from prohibiting this use of hoasca. A panel of the 10th Circuit affirmed. An en banc 10th Circuit affirmed and created a heightened standard for the granting of any of the three historically disfavored preliminary injunctions, which include mandatory preliminary injunctions and those that alter the status quo or afford the movant all the relief it could recover at the conclusion of a full trial on the merits. A different majority voted to affirm the entry of the preliminary injunction. In future, the court held, movants can no longer rely on the 10th Circuit’s modified-likelihood-of-success-on-the-merits standard. Instead, they “must make a strong showing” with regard to both the likelihood of success on the merits and the balance of harms. Full text of the decision CIVIL RIGHTS Breaking woman’s arm in arrest is excessive force An Auburn Hills, Mich., police officer was not entitled to qualified immunity in a suit brought by a woman whose elbow was fractured by the officer while he arrested her for trespass, the 6th U.S. Circuit Court of Appeals ruled on Nov. 10. Solomon v. Auburn Hills Police Dept., No. 03-1707. Francine Solomon took her six children and some of their friends, ranging in age from 3 to 18, to the movies. She bought tickets for the older children to see an R-rated movie, while intending to watch a G-rated movie with the younger children. The theater’s management insisted that Solomon accompany the children to the R-rated movie, but Solomon refused. As she sat in the G-rated movie, police officers arrived and forcibly removed her, telling her she was under arrest for trespass. While trying to handcuff her, an officer fractured Solomon’s elbow. After pleading guilty to trespass, Solomon filed a civil rights suit. The district court denied the arresting officer’s motion for summary judgment based on qualified immunity. The 6th Circuit affirmed, agreeing that Solomon had a right to be free from excessive force given that she had followed the officer’s orders, and that this right was clearly articulated at the time of the incident. The officer should have known that his conduct was unlawful. Full text of the decision CONTRACTS Lack of new obligations voids noncompete deal Determining that there was no independent consideration for a noncompete agreement, the Washington Supreme Court declared on Nov. 10 that the agreement was unenforceable. Labriola v. Pollard Group Inc., No. 74002-0. An employer hired a commercial print salesperson as an at-will employee and specified that he could not compete in the custom printing business for three years after the termination of his employment. Five years later, the employer asked the employee to sign another noncompete agreement with the same terms as the first but containing a geographic limitation of 75 miles from the employer’s business. After the employer implemented a new commission scheme reducing the employee’s income, he decided to seek employment elsewhere. Upon learning this, the employer terminated him and sent a letter to a competitor informing it of the noncompete agreement. The competitor did not hire the employee. In a declaratory judgment action by the employee, the trial court upheld the noncompete agreement. The Washington Supreme Court reversed, holding that a noncompete agreement entered into after employment had commenced is validly formed only when there is independent consideration at the time the agreement is reached. While in the new noncompete agreement the employee took on the additional burden of not competing within a 75-mile radius of his employer, the court found that the employer did not incur any additional duties or obligations. The employer just promised what it had already promised in the original agreement. Since there was no independent consideration, the new agreement wasn’t enforceable against the employee. Full text of the decision CRIMINAL PRACTICE No constitutional right to privacy over trash The South Dakota Constitution does not protect the warrantless search and seizure of one’s trash, the South Dakota Supreme Court ruled on Nov. 10. State v. Schwartz, No. 2004 SD 123. Acting on tips that Rick and Connie Schwartz were using and distributing methamphetamine, officers removed a trashcan from the curb in front of the Schwartzes’ house. Officers used material from the trashcan to secure a search warrant for the Schwartzes’ home. A search there revealed more incriminating evidence, and the couple was eventually charged with possession of methamphetamine. The trial court denied their individual motions to suppress the evidence seized from their trash, and the two were convicted in separate trials. The South Dakota Supreme Court affirmed, citing a 1988 U.S. Supreme Court ruling that the Fourth Amendment did not extend to trash. The court said the same was true under the South Dakota Constitution, though some states hold otherwise. The Schwartzes had neither an objective, nor a subjective, expectation of privacy in their trash once they took it out for public collection. Full text of the decision IMMIGRATION LAW Forced abortion doesn’t mean physical coercion The board of Immigration Appeals erred, for political asylum purposes, in affirming an immigration judge’s ruling that, because Chinese government officials did not physically restrain a woman during a coerced abortion, she was not “forced to abort a pregnancy,” the 9th U.S. Circuit Court of Appeals held on Nov. 8. Ding v. Ashcroft, No. 03-71013. Lidan Ding, a Chinese national, worked in a Chinese government-owned construction company in Shanghai, when she became pregnant out of wedlock, a violation of her work unit’s family planning policy. Her work unit denied her request to marry her boyfriend and ordered her to have an abortion. After Ding refused, she was forcibly taken to a hospital where two Chinese population control officials stood over her bed, but did not restrain her physically, while a doctor performed the abortion. Ding applied for political asylum in the United States, claiming fear of persecution based on China’s coercive family planning practices. An immigration judge denied Ding’s asylum application, finding that she had undergone the abortion voluntarily because she had not been restrained during the procedure. The Board of Immigration Appeals affirmed. The 9th Circuit reversed, holding that physical restraint was not a requirement under 8 U.S.C. 1101(a)(42)(B), which made persons “forced to abort a pregnancy” statutorily eligible for political asylum. The court said, “[a]n asylum applicant seeking to prove he was subjected to a coercive family planning policy need not demonstrate that he was physically restrained during a ‘forced’ procedure. Rather, ‘forced’ is a much broader concept, which includes compelling, obliging, or constraining by mental, moral, or circumstantial means, in addition to physical restraint.” Full text of the decision LABOR LAW Lying in illegal quizzing is illegal basis for firing An employer unlawfully fired an employee for giving deceptive answers to questions about the posting of fliers protesting layoffs, because the employer’s interrogation of the employee about the incident violated the National Labor Relations Act, the U.S. Circuit Court for the District of Columbia held on Nov. 9. United Srvs. Auto. Ass’n v. NLRB, No. 03-1371. After United Services Automobile Association (USAA) laid off some long-term employees as part of a reorganization plan, Loretta Williams, an insurance adjuster for the company, distributed several hundred fliers criticizing the layoffs. During an interrogation about the incident, Williams gave evasive answers, and USAA fired her for lying. Adopting the findings and conclusions of an administrative law judge, the National Labor Relations Board concluded that USAA had violated Section 8(a)(1) of the National Labor Relations Act by unlawfully interrogating Williams about activity that was protected under Section 7 of the act. In addition, the board found that USAA’s anti-solicitation policy was overbroad. USAA petitioned for review of the board’s decision, arguing that Williams’ activities were not protected under Section 7 because they violated USAA’s valid workplace rules. The D.C. Circuit affirmed, concluding that Williams’ distribution of the fliers was a “concerted activity” protected under Section 7, and that, because the activity was protected, the interrogation was unlawful, meaning that Williams, fearing retaliation, had no obligation to give truthful answers. The court said, “The Board was thus warranted in concluding that Williams had no obligation to respond to the questions in any particular manner and that her dishonesty about her protected concerted activity did not constitute a lawful reason to discharge her.” Full text of the decision TORTS Med-mal noneconomic cap isn’t unconstitutional Utah’s statutory cap on noneconomic damages in medical malpractice cases withstands scrutiny under the Utah Constitution, the Utah Supreme Court held on Nov. 5. Judd v. Drezga, No. 20010646. Heidi Judd, the mother of Athan Montgomery, born with severe brain damage, sued the doctor for a botched delivery. The jury awarded the plaintiffs $1.25 million in noneconomic damages. But the trial court reduced the noneconomic damages by 80% to $250,000, relying on a Utah statute that caps noneconomic damages in medical malpractice suits. Judd asked the Utah Supreme Court to find that Utah’s statutory cap violates five provisions of the state constitution, including the open courts provision, the right to uniform operation of laws, due process guarantee, right to a jury trial in civil cases and separation of powers. The doctor was joined in his defense by the attorney general of Utah, the Utah Medical Association and two health-related organizations. The Utah Supreme Court affirmed, holding that the constitution does not prohibit the cap, which “is designed to reduce health care costs, increase the availability of medical malpractice insurance, and secure the continued availability of health care resources,” all goals that the Utah high court deemed “legitimate.” Full text of the decision Proximate cause isn’t the same as dominant cause A trial court’s jury instruction in a medical malpractice action stating that proximate cause was “sometimes called the dominant cause,” constituted reversible error, the Georgia Supreme Court held on Nov. 8, in an apparent case of first impression. Thompson v. Thompson, No. S04G0766. Norma Thompson sued her surgeon and her anesthesiologist, Bobby Thompson, alleging medical malpractice after she developed a post-operative infection requiring multiple corrective and cosmetic surgeries. Norma Thompson alleged that Bobby Thompson was negligent in failing to take corrective actions in the operating room after the surgeon allegedly broke the sterile field. After Norma Thompson settled with the surgeon, the case against the anesthesiologist went to trial, and the trial court instructed the jury that proximate cause was “sometimes called the dominant cause.” The jury found for the anesthesiologist, and Norma Thompson appealed, arguing that the instruction constituted reversible error. An intermediate state appellate court affirmed. Reversing, the Georgia Supreme Court held that the trial court’s instruction did constitute reversible error. Noting that there could be more than one proximate cause of an injury and that a “dominant cause” instruction could mislead a jury in cases with more than one alleged tortfeasor, the court said, “Here, the jury could have erroneously concluded that the anesthesiologist’s failure to stop the surgery or to fix the sterile field had to be the dominant or lead cause of the patient’s injuries and had to overshadow the actions of the surgeon for the patient to prevail. It is highly unlikely that the jury would reach such a conclusion given the significant allegations of malpractice against the surgeon.” Full text of the decision WORKERS’ COMPENSATION Negligent employer not liable for worker’s injury An injured worker may not recover from his employer where the employer did not know that there was a high probability that the worker would be injured in working on an aerial ladder without a safety belt, the Montana Supreme Court ruled on Nov. 12. Roy v. Blackfoot Telephone Cooperative Inc., No. 04-116. Steve Roy performed mid-span aerial work for Blackfoot Telephone Cooperative, involving repairing lines between telephone poles with an aerial ladder or bucket truck. One day, Roy fell 18 feet from an aerial ladder and broke his neck. Although he had regularly attended safety training sessions, and Blackfoot had given him a belt for use in climbing telephone poles, Blackfoot had never provided him with a safety belt for use on aerial ladders. Roy sued Blackfoot for his injuries. The trial court granted Blackfoot’s motion for summary judgment. Roy appealed. The Montana Supreme Court affirmed. While a workplace injury may ordinarily only be addressed through a workers’ compensation claim, an exception exists for injuries that are intentional under Mont. Code Ann. � 39-71-413. The court determined that Blackfoot’s failure to train Roy on the use of ladder safety belts did not rise beyond the level of negligence. Full text of the decision

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