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• ADMINISTRATIVE LAW Administrative warrants are executable with force Forceful execution of an administrative search warrant by federal workplace safety inspectors is not a violation of constitutional rights, the 5th U.S. Circuit Court of Appeals held on Dec. 26. Trinity Marine Products Inc. v. Chao, No. 06-60993. In October 2004, compliance officers from the Occupational Safety and Health Administration visited Trinity Marine Products Inc. to conduct an inspection. Trinity denied the inspectors entry. OSHA obtained an administrative search warrant from a U.S. magistrate judge and returned to Trinity’s facility. Trinity again denied them entry. A federal prosecutor advised Trinity that, unless the compliance officers were allowed to inspect, federal marshals would be dispatched. Trinity countered that enforcing an administrative warrant requires a contempt proceeding, not execution by force. The inspectors arrived at the facility with three U.S. marshals. Trinity permitted the inspection under protest, but filed an emergency motion in federal court to enjoin the inspection, contending that the warrant lacked probable cause and that forceful execution of an administrative warrant is unlawful. The inspectors had, however, completed the inspection before the court held a hearing on Trinity’s motion. At the hearing, OSHA successfully argued that, because the warrant had already been executed, Trinity was required to exhaust its administrative remedies. An administrative law judge rejected Trinity’s claim that the search was unconstitutional. The Occupation Safety and Health Review Commission declined to review the ALJ’s decision. The 5th Circuit affirmed, rejecting the argument that an administrative search warrant cannot be forcefully executed, and that OSHA must commence civil contempt proceedings against recalcitrant targets. “Trinity’s so-called right finds no support in the Constitution’s text or history and has never been blessed by the Supreme Court,” the court said, saying Trinity’s argument makes no sense. “We agree with the ALJ that there is no constitutional right to a pre-execution contempt hearing and that administrative warrants, like criminal warrants, can be executed by means of reasonable force.” Full text of the decision • ATTORNEY FEES Fees for winner acting as private attorney general The private attorney general doctrine requires that attorney fees be awarded to a prevailing party in a suit involving an important right affecting the public interest, the Utah Supreme Court held on Dec. 21. Utahns for Better Dental Health-Davis Inc. v. Davis County Clerk, No. 20060321. In 2000, citizens of Davis County, Utah, voted to have fluoride added to the public water supplies. Citizens opposed to fluoridation sought to have a re-vote in 2002. Utahns for Better Dental Health-Davis Inc. sought declaratory and injunctive relief against the re-vote. A state district court found in favor of Utahns, but denied its request for attorney fees. Reversing the fee ruling, the Utah Supreme Court noted that Utah has recognized the “private attorney general doctrine” as a way of granting equitable awards of attorney fees when vindication of a strong or societally important public policy takes place and the necessary costs of doing so transcend the individual plaintiff’s pecuniary interest to an extent requiring subsidization. The key question is whether an important right affecting the public interest has been vindicated. The court held that the trial court had erred in incorporating into the doctrine a requirement that a plaintiff show an inability to pay its own attorney fees or show that its burden was out of proportion to its individual stake in the matter. The court said “the blocking from the ballot of an unconstitutional initiative petition is an actual and concrete benefit to a large number of citizens and voters, especially in light of the potential costs associated with campaigns to secure or avoid the initiative’s passage.” • CIVIL PRACTICE Bifurcation of legal and equitable claims possible Trial courts have the discretion to bifurcate legal and equitable claims in a single action and to conduct a bench trial first on an equitable claim, the Nevada Supreme Court found on Dec. 27 in an issue of first impression. Awada v. Shuffle Master Inc., No. 46174. In a suit filed by Yehia Awada, a casino game developer, against Shuffle Master Inc., a manufacturer and distributor of casino games and equipment, for claims that included breach of contract, Shuffle Master counterclaimed for rescission of the agreement. The trial court bifurcated the rescission counterclaim and conducted a bench trial on that issue only, finding in favor of Shuffle Master and rescinding the agreement. The trial court then dismissed all remaining claims, after deciding that the findings of fact and conclusions of law from the bench trial disposed of all of them. Awada’s motion to amend the findings of fact and conclusions of law and for a new trial was denied. The Nevada Supreme Court affirmed, holding that the constitutional right to trial by jury does not extend to equitable matters. Nev. R. Civ. P. 42(b) allows a district court to separate “any claim, cross-claim, counterclaim, or third-party claim,” and to conduct a separate trial on it, so long as it “always preserv[es] inviolate the [constitutional] right of trial by jury.” The court concluded that the right to a jury trial is preserved when equitable claims are considered first even though such consideration may dispose of any legal claims before proceeding to a jury trial. • EMPLOYMENT Firing guard for joining motorcycle club is OK State correctional officers’ First Amendment right of association isn’t violated when they are fired for being members of the Outlaws Motorcycle Club, the 2d U.S. Circuit Court of Appeals ruled on Dec. 21. Piscottano v. Murphy, No. 05-3716. Four Connecticut prison guards were terminated after an investigation revealed that they were members of the Outlaws Motorcycle Club, an organization subject to state and federal investigation for drug distribution, murder and prostitution. The officers sued, claiming among other things that they did not know of the club’s criminal activities. A Connecticut federal court ruled for the prison, holding that membership in the club was not expressive association on matters of public concern, that membership in the club was not an intimate relationship warranting constitutional protection, and that prison policy forbidding unprofessional off-duty conduct was not unconstitutionally vague. The 2d Circuit affirmed. By wearing club colors and repeatedly consorting with club members, thus demonstrating pride and approval of an organization under criminal investigation, the officers were engaged in speech on a matter of public concern. However, the prison’s assertion that such membership would likely disrupt the prison’s operations outweighs the officers’ right of expressive association. The court said there was no evidence that the officers were disciplined merely for associating with friends who happened to be club members; thus the officers’ right to intimate association was not violated. Finally, a directive noting the club’s criminal activities put the officers on fair notice that association with the group would violate the prison policy on unprofessional conduct. • INSURANCE LAW Not occupying car, hurt officer gets no coverage A deputy sheriff who exited his patrol car to assist motorists in a construction zone was not “occupying” his vehicle for purposes of insurance coverage when he was struck by another motorist, the Idaho Supreme Court held on Dec. 24. Andrae v. Idaho Counties Risk Management Program Underwriters, No. 33250. Brandon Andrae, a deputy sheriff, was operating his patrol car in a construction zone when he noticed two vehicles on the side of the road displaying their hazard lights. Andrae stopped and exited his patrol car to assist the motorists, and was then struck by another vehicle. Andrae received payment from the insurer of the vehicle that hit him and workers’ compensation benefits. However, Idaho Counties Risk Management Program Underwriters (ICRMP), the insurer for the sheriff’s department that employed him, refused to pay under the department’s underinsured motorist coverage, arguing that Andrae was not “occupying” the vehicle at the time of the accident as required by the policy. Andrae sued, but a trial court held for ICRMP. Andrae appealed, arguing that he was occupying the vehicle, citing a definition from Black’s Law Dictionary defining “to occupy” as “[t]o take or enter upon possession of; to hold possession of; to hold or keep for use; to possess; to tenant; to do business in; to take or hold possession. Actual use, possession, and cultivation.” Affirming, the Idaho Supreme Court held that, for purposes of the policy, Andrae was not occupying the vehicle. The court said, “Using the plain meaning and ordinary sense of ‘occupying,’ a person who has dismounted the vehicle is not occupying it. It is unfortunate that a member of the law enforcement community, injured while carrying out his official duties, would not have coverage in these circumstances. However, this Court cannot rewrite either the statutes or the language employed in the insurance contract in order to provide relief.” • INTELLECTUAL PROPERTY Infringement suit fails if confusion is not likely A software vendor’s federally registered trademark for the name “SmartSearch” isn’t sufficient to establish the likelihood of confusion with eBay Inc.’s “Smart Search” function, the 9th U.S. Circuit Court of Appeals held on Dec. 28. Applied Information Sciences Corp. v. eBay Inc., nos. 05-56123 and 05-56549. Applied Information Sciences Corp. (AIS), a specialized software vendor, obtained a federally registered trademark for the term, “SmartSearch,” for use on computer software and instruction manuals sold together. After AIS registered its mark, eBay Inc., the operator of an online auction Web site, began using the term, “Smart Search,” on its site as a hyperlink to advanced search options. AIS sued eBay in a California federal court alleging trademark infringement. Relying on Levi Strauss & Co. v. Blue Bell Inc., 778 F.2d 1352, 1354 (9th Cir. 1985) (en banc), eBay countered that Applied’s protected interest in the mark was limited to the uses listed in its trademark registration. The court granted summary judgment to eBay. The 9th Circuit affirmed. Holding that AIS did have a protected interest in the mark and that a likelihood-of-confusion analysis was necessary, the court said, “By virtue of its federal registration, AIS discharged its burden of establishing the validity of the SmartSearch mark in connection with those goods listed in the registration. Whether eBay’s use of SmartSearch infringed AIS’s protected interest then becomes a question of likelihood of confusion . . . .[I]n opposing eBay’s motion for summary judgment AIS failed to produce any admissible evidence tending to show a likelihood of confusion.” Trade secret disclosure follows three-part test A trial court erred in ordering Bridgestone to disclose its skim stock formula during pretrial discovery in a products liability suit, the Indiana Supreme Court ruled on Dec. 18 in a case of first impression. Bridgestone Americas Holding Inc. v. Mayberry, No. 48S02-0703-CV-120. In 2001, Harmony Wigley died in a collision after losing control of her 1992 Ford Escort. Her estate’s representative, Violet Mayberry, and Wigley’s mother filed a products liability suit against several Bridgestone and Firestone companies, alleging that tread separation in a steel-belted tire caused the accident. During pretrial discovery, the plaintiffs sought the formula for the steel belt skim stock on the tire in question. Skim stock is one of several compounds that adhere the rubber with the steel. Bridgestone objected and moved for a protective order covering all trade secrets used to produce the tires in question, including the skim stock formula. An Indiana trial judge ordered Bridgestone to disclose the skim stock formula. An intermediate appellate court rejected Bridgestone’s argument that the plaintiffs had failed to show that their need for the formula outweighed the harm of disclosure. Reversing, the Indiana Supreme Court applied a three-part analysis � from the widely adopted Fed. R. Civ. P. 26(c)(7) � for trial judges to determine whether trade secrets are subject to discovery in litigation. First, the party opposing discovery must show that the information sought is a “trade secret or other confidential research, development or commercial information,” and that disclosure would be harmful. Then the burden shifts to the party seeking discovery to show that the information is relevant and necessary for a trial. If both parties satisfy their burdens, the court must weigh the potential harm of disclosure against the need for the information in reaching a decision. Applying the test to the case at issue, the court said the record clearly showed that the information was a trade secret and that the plaintiffs had failed to show that the information was necessary to the presentation of their case. • TORTS Ohio’s cap on damages is ruled to be constitutional Ohio’s tort reform laws capping noneconomic and punitive damages are constitutional, the Ohio Supreme Court held on Dec. 27. Arbino v. Johnson & Johnson, No. 2007-6948. In 2006, Melisa Arbino sued Johnson & Johnson and other defendants, alleging blood clots and other serious medical side effects resulting from use of the Ortho Evra birth control patch. In her suit, filed in an Ohio federal court, Arbino also challenged the constitutionality of tort-reform statutes that took effect in 2005. The case was consolidated with other Ortho Evra suits in a multidistrict litigation. The Ohio federal trial judge certified questions in the case to the Ohio Supreme Court to determine the constitutionality of the tort reform statutes at issue. Ohio Rev. Code Ann. � 2315.18 limits noneconomic damages in all cases except those with the most serious injuries; Ohio Rev. Code Ann. � 2315.21 caps punitive damages at twice compensatory damages and Ohio Rev. Code Ann. � 2315.20 allows collateral benefits to be admitted as evidence. Arbino argued that the laws violated several provisions of the Ohio Constitution, including the right to jury trial, the right to due process, the right to equal protection and the prohibition on the legislature exercising general judicial powers. Since 1975, Ohio lawmakers have passed a series of tort reform measures, all of which the state high court has declared unconstitutional. The plaintiff argued that, because the 2005 statutes are functionally identical to the laws already struck down, stare decisis requires they be deemed unconstitutional as well. Rejecting that argument, the Ohio Supreme Court said it would not apply stare decisis. “The statutes before us here are sufficiently different from the previous enactments so as to avoid the blanket application of stare decisis and to warrant a fresh review of their individual merits,” the court said. The high court upheld the constitutionality of statutes capping damages. The court said that the provisions bear a “real and substantial relation” to improving the predictability of the civil justice system, which state lawmakers believe will help the economy. “The decision in this case affirms the General Assembly’s efforts over the last several decades to enact meaningful tort reforms.” Child does not assume the risk of sexual abuse Primary assumption of the risk is not a defense available in cases involving the sexual abuse of a child, the Minnesota Supreme Court held on Dec. 27 in an issue of first impression. Bjerke v. Johnson, No. A06-117. Suzette E. Johnson owned Island Farm, a horse farm where she lived with her boyfriend, Kenneth D. Bohlman. Johnson often invited teenagers to visit the farm to ride and learn about horses. Beginning at age 14 in 1997 and continuing until she turned 18 in 2001, Aja Bjerke visited the farm and spent weekends there. During that time, she engaged in a sexual relationship with Bohlman. In April 2002, Bjerke told law enforcement officials that she had been sexually abused by Bohlman for years. It led to Bohlman’s conviction for criminal sexual conduct. Bjerke acknowledged that Bohlman never forced her participation in any sexual conduct and that she went out of her way to hide their relationship. She brought a negligence action against Johnson for failing to protect her from sexual abuse. The trial court granted Johnson’s motion for partial summary judgment, holding that she had no duty to protect Bjerke and that Bjerke’s assumption of the risk of sexual abuse barred her claims against Johnson. An intermediate appellate court reversed, ruling that the doctrine of assumption of the risk did not apply. The Minnesota Supreme Court affirmed. In addition to the strong public interest in protecting children from sexual abuse, children cannot be expected to understand the long-term effects that sexual abuse may cause them. The court noted that given the pressure exerted on a child by an adult during sexual abuse, there can be no meaningful consent or assumption of risks by a child. Bar on suing hospital staff is unconstitutional The Oregon Tort Claims Act’s limitation on remedies is unconstitutional as applied to an infant who suffered more than $17 million in damages due to the negligence of state hospital workers, the Oregon Supreme Court ruled on Dec. 28. Clarke v. Oregon Health Sciences University, No. S053868. During surgery to repair a newborn’s congenital heart defect, doctors and staff at Oregon Health Sciences University negligently cut off oxygen to the child, who as a result suffered total and permanent brain damage. Future health care expenses, loss of future earning capacity and noneconomic damages were estimated at $17.2 million. The parents sued the individual employees, but the state hospital, acting pursuant to the state tort claims act, moved to substitute itself as the sole defendant. The state trial court agreed and also agreed that the hospital’s total liability was $200,000 under the act. An intermediate appellate court reversed, holding that the parents had been deprived of a constitutionally protected adequate remedy when they were not allowed to sue the staff individually. The Oregon Supreme Court affirmed. The hospital is entitled to sovereign immunity, so the parents have no constitutionally protected remedy with respect to the hospital. The Legislature thus had the right to limit the amount of liability of state entities. However, the parents do have a cause of action against the individual employees. Thus, the Oregon Tort Claims Act’s elimination of this cause of action, and failure to substitute an adequate remedy, violates the remedy clause of the U.S. Constitution.

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