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• BANKRUPTCY Petition can be dismissed if debtor gets fresh start A bankruptcy court correctly approved a trustee’s request to remove the attorney pursuing a debtor’s personal injury action, but erred in refusing to dismiss her bankruptcy petition, the 2d U.S. Circuit Court of Appeals ruled on Nov. 5. In re Smith, No. 06-4450. Robert Geltzer was appointed as a trustee representing Sueann Smith in her Chapter 7 bankruptcy petition. Smith had $14,000 in debts and a single potential asset: a personal injury claim arising from a sledding accident in which she was blinded in one eye. Geltzer picked Jeffrey Schwartz to pursue the personal injury claim, and a New York federal bankruptcy court ordered Schwartz to file the case in Geltzer’s name, as the trustee. Schwartz not only disobeyed that order, but brought in another attorney, Robert Ginsberg, without the court’s or trustee’s approval, to pursue the case. Geltzer asked the bankruptcy court to order the removal Schwartz and Ginsberg. Smith opposed the motion and asked that Ginsberg be allowed to continue to represent her in the personal injury suit. The bankruptcy court granted Geltzer’s motion. Smith moved to dismiss her bankruptcy petition. She said she had a commitment from Setareh Holding Corp. to pay the claims of the estate in return for a lien against any recovery in the personal injury action. The bankruptcy court denied the motion, and a New York federal court affirmed. The 2d Circuit affirmed the ruling on the removal of Schwartz and Ginsberg, but reversed on the denial of Smith’s motion to dismiss. Given Schwartz’s and Ginsberg’s possible misconduct, the court said, it was in the estate’s best interest to have a different special counsel. However, though the bankruptcy court was obviously trying to protect Smith from the consequences of her own choices, dismissal would have benefited Smith’s creditors, and Smith would have been given “an effective fresh start,” which is a goal of bankruptcy proceedings. Full text of the decision • CRIMINAL PRACTICE Brain dysfunction doesn’t prove mental retardation A trial court committed no error in rejecting a murder defendant’s habeas petition despite the fact that, due to diminished mental ability, the defendant may have had the mental attributes of a juvenile when he committed the offense, the Georgia Supreme Court held on Nov. 5. Rogers v. Georgia, No. S07A1210. A Georgia state court convicted James Rogers of murder in 1985 and sentenced him to death for a crime he committed when he was 19 years old. Rogers sought a writ of habeas corpus, arguing that, because he was mentally retarded, he had the attributes of a juvenile offender and, thus, could not be executed. Although there was conflicting expert testimony regarding his IQ, the jury found that Rogers was not mentally retarded. Affirming, the Georgia Supreme Court said that Rogers had the burden of proving that he is mentally retarded � a burden he failed to meet. The court said, “The jury heard evidence regarding six [IQ] tests administered to Rogers during his lifetime, with scores of 78, 84, 85, 68, 66 . . . and 89. Expert testimony established that IQ scores between 70 and 84, while indicating borderline intellectual functioning, do not indicate mental retardation . . . .Although evidence was adduced indicating that Rogers exhibits brain dysfunction, Rogers’s own expert testified that there is no way to determine what caused the dysfunction and that a person can have brain dysfunction without being mentally retarded.” No new trial on ground defendant hadn’t raised Under the federal Rules of Criminal Procedure, a Texas federal judge had no authority to grant a new trial on a ground not raised by the defendant, the 5th U.S. Circuit Court of Appeals held on Nov. 7 in a case of first impression. U.S. v. Nguyen, No. 06-20598. A Texas federal jury convicted Huy Tan Nguyen of conspiracy to possess cocaine with intent to distribute. After the government’s rebuttal closing argument, the judge said the government had raised a new theory during its rebuttal argument, and allowed the defense counsel sur-rebuttal. After the verdict, Nguyen, pursuant to Fed. R. Crim. P. 29, filed a motion for judgment of acquittal alleging insufficient evidence, which the district court denied. Nguyen also filed a filed a motion for new trial under Fed. R. Crim. P. 33, alleging newly discovered evidence. The judge granted the motion for a new trial, but on a different ground. The judge said the government had violated Fed. R. Crim. P. 29.1 by making a new assertion in its rebuttal closing argument. The 5th Circuit reversed, holding that, under Rule 33, a district court does not have the authority to grant a motion for a new trial on a basis not raised by the defendant. Nguyen contended that the district court had the authority to treat his Rule 29 motion for acquittal as a Rule 33 motion for a new trial. However, the court said, “although Nguyen’s motion for judgment of acquittal makes a passing reference to the prosecutor’s improper argument, it does not sufficiently raise the issue as a basis for a new trial . . . .Because Nguyen did not adequately raise the issue of improper closing argument, the district court was without authority to grant the new trial.” • DAMAGES Lost revenue is no basis for calculating damages Damages should be calculated using a “lost profits,” rather than “lost revenue,” methodology, the Alabama Supreme Court ruled on Nov. 9. International Paper Co. v. Madison Oslin Inc., No. 1041299. International Paper Co. (IP) and Madison Oslin Inc. negotiated a contract for the production of recyclable boxes used for meat and poultry packaging. Under the contract, Madison would apply patented chemical coating to IP’s packages for red meat and poultry sold in the United States, Canada and Mexico. The contract specified that IP would produce 75,000 square feet per month of material for Madison to coat, and that it would pay $6.00 per square foot, and more if it didn’t meet that production goal. IP failed to meet this target. Madison sued for breach of contract and fraud. A trial jury in 2005 awarded Madison $8.9 million, but found for IP on the fraud counts. The Alabama Supreme Court affirmed on the breach of contract, but reversed on the damages. The court said the damages were inappropriately calculated because they were determined using a “lost revenue” rather than a “lost profit” methodology. “The evidence established that the $8.9 million award is well above the amount Madison would have received in revenue from its bargain with IP,” a concurring opinion said. Madison’s own exhibits showed that it stood to make about $4 million in gross profits under the contract. • EVIDENCE Doctor can testify as to nurses’ standard of care A physician is qualified to testify as an expert witness as to the accepted standard of care for a nurse, the Nevada Supreme Court held on Nov. 8. Staccato v. Valley Hospital, No. 42297. Nicolaus Staccato was admitted to the Valley Hospital emergency room for back pain. A nurse administered an intramuscular injection of a pain reliever and left him standing in an unattended position. Staccato passed out and struck his head. He brought a medical malpractice action, using Dr. Paul Fischer, an emergency room physician, as a standard-of-care expert witness. The trial court granted the defendant’s motion in limine to preclude Fischer from testifying about the “nursing standard of care.” The court then granted the defendant’s motion for directed verdict because Staccato could not meet his burden of proof. Reversing and remanding, the Nevada Supreme Court said that the lower court had applied the wrong legal standard. In Nevada, the court said, expert witness assessment turns on whether the proposed witness’s special knowledge, skill or experience will assist the jury. A physician is not automatically disqualified from testifying against a defendant who specializes in a different area of medicine. Moreover, “since both Dr. Fischer and the nurse are qualified to administer intramuscular injections, we perceive no distinction between what standard of care is acceptable based on their specialized credentials. Instead, the acceptable standard of care is governed by the procedure or treatment at issue, not the defendant’s practice area or specific license.” • FAMILY LAW Prisoner’s child support payment can be reduced A parent in prison is not relieved of a child support obligation, but the amount he must pay should be based on his actual income while incarcerated, the West Virginia Supreme Court of Appeals ruled on Nov. 8 on an issue of first impression. Adkins v. Adkins, No. 33312. In ordering Christopher Adkins to pay child support upon his divorce in 2004, a West Virginia state court based the amount to be paid on Adkins’ job as a truck driver. Two years later, Adkins pleaded guilty to sexual assault and was incarcerated. He petitioned the court to modify his child support obligation, arguing that incarceration was a material change in circumstances and that he could no longer pay. Noting that Adkins was in jail and lost his job because of his own behavior, the trial court refused to cancel or modify the obligation. The West Virginia Supreme Court of Appeals affirmed in part and reversed in part. Imprisonment is not justification, by itself, for modifying child support payments, but such changes are not barred. But courts should not base support calculations on preincarceration income. Instead, the incarcerated parent’s support obligation should be set in light of that parent’s actual earnings while incarcerated and other assets available. • IMMIGRATION LAW Fugitive immigrant loses right to appellate review Under the fugitive disentitlement doctrine, an appellate court may dismiss a fugitive’s petition for review of a Board of Immigration Appeals decision, the 5th U.S. Circuit Court of Appeals held on Nov. 7, answering a question of first impression. Giri v. Keisler, No. 06-60569. Raju Raj Giri, his wife and their child, all citizens of Nepal, entered the United States as nonimmigrant visitors. Overstaying their visas, the Giris received notices to appear in immigration court for deportation proceedings. The Giris sought asylum, withholding of removal and other protections. An immigration judge denied the application and ordered them removed. The Board of Immigration Appeals affirmed. The Giris sought review of the BIA ruling with the 5th Circuit. While that was pending, the U.S. Immigration and Customs Enforcement (ICE) denied the Giris’ application to put their deportation on hold, which made their removal orders administratively final. The Giris subsequently failed to report to ICE for removal. Acknowledging that ICE considered them fugitives, they filed a motion for a stay of removal with the 5th Circuit, which the court denied. Next, the government filed a motion with the 5th Circuit to dismiss the Giris’ petition appealing the BIA decision, arguing that, since the Giris were fugitives, they were not entitled to appellate review. The 5th Circuit dismissed the Giris’ appeal. According to the fugitive disentitlement doctrine, a criminal defendant who flees custody has abandoned the right to appeal. The court said the Giris “wish to invoke the protection that a favorable decision from this court would provide, without submitting themselves to the risk of an adverse ruling. While it is certainly possible that the Giris may eventually decide to comply with their removal order following an adverse ruling in this matter, there is no indication that they will do so, and thus any decision on the merits, unless it is to petitioners’ liking, may have no practical effect whatsoever.” • WORKERS’ COMPENSATION Player’s contract doesn’t control award of benefits Despite a collective bargaining agreement providing for coverage of injuries sustained during team travel, a professional hockey player who was injured while on a team road trip was not entitled to workers’ compensation because his injuries were sustained outside the scope of his employment, the District of Columbia Court of Appeals held on Nov. 8. Murphy v. District of Columbia Dep’t of Employment Services, No. 05-AA-1335. Joseph Murphy, a professional hockey player for the National Hockey League’s Washington Capitals, was injured in an after-hours altercation on the streets of New York City while on a road trip with the team. Murphy applied for workers’ compensation benefits with the District of Columbia Department of Employment Services, but both an administrative law judge and the district’s Compensation Review Board rejected his claim, holding that the late-night altercation was outside the scope of his employment. Murphy appealed, arguing that, under a provision of the collective bargaining agreement between the National Hockey League and the National Hockey League Players’ Association, a player injured during the course of his employment, including “travel with his team,” is entitled to workers’ compensation. The ALJ ruled that the remedy for any breach of the collective bargaining agreement lies with the Labor Management Relations Act, administered by the federal government, and “not this administrative forum.” The board ruled that district’s workers’ compensation act (WCA) “does not grant this agency jurisdiction over the interpretation and enforcement of . . . extra-legislative agreements.” Affirming, the District of Columbia Court of Appeals, the district’s highest court, cited its own precedent, saying, “[F]or injuries which are compensable under the WCA, an employee is limited to the remedy provided by the statute. Conversely, for injuries which are not compensable under the WCA, no remedy is available under the statute.”

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