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• CIVIL PROCEDURE Untimely designation of witness deemed ‘unfair’ A plaintiff who failed to designate expert witnesses in a timely manner was barred from calling an expert to rebut the defendant’s case-in-chief, the Mississippi Supreme Court ruled on April 3. Banks v. Hill, No. 2006-IA-00047-SCT. In an automobile accident case, the plaintiff’s counsel failed repeatedly to designate expert witnesses. Meanwhile, the defense designated its experts, disclosing the subject matter, facts and opinions to which they would testify. Two months later, the plaintiff’s counsel moved for leave to designate experts and designated two experts before the trial court even ruled on the motion. The trial court denied the plaintiff’s motion and granted a defense motion to strike the late designation. However, the trial court later allowed the plaintiff to call one of the stricken experts to rebut defendant’s case-in-chief. The defense filed an interlocutory appeal. The state high court reversed. Rebuttal evidence “should be allowed to contradict unexpected and undisclosed opinions provided by defendants’ experts,” but to do so under these circumstances would be “inherently unfair,” the court said. “If the rules allowed the strategy argued by Hill, we fail to see why plaintiffs would designate and disclose experts,” the court said. “Plaintiffs would be free simply to wait until trial, and then call undesignated experts to ‘rebut’ the defendant’s case-in-chief. The only protection from this tactic would be for a defendant not to offer any evidence in its case-in-chief.” Full text of the decision Flawed original didn’t doom amended pleading A civil litigant may amend its claim to federal jurisdiction from reliance on a diversity of citizenship to the existence of a question of federal law if no jurisdictional challenge has been mounted yet, the 1st Circuit Court of Appeals ruled on April 3, on a matter of first impression. Connectu LLC v. Zuckerberg, No. 07-1796. A group of Harvard University alumni accused the defendant, Mark Zuckerberg, of stealing their idea for a social networking site for college students and using it to launch a competing Web site, the wildly successful Facebook. The group filed suit in federal court, asserting diversity jurisdiction because the parties lived in different states. Later, they registered a copyright for their idea and filed an amended complaint raising a federal claim for copyright infringement. Almost one year later, the defendant moved for dismissal, asserting flaws in the original diversity claim. The district court ruled that the amended complaint could not overcome the flaws in the original complaint and dismissed the action. The plaintiffs appealed. The 1st Circuit reversed. “[I]t is clear beyond hope of contradiction” that the Federal Rules of Civil Procedure permit a party to amend its complaint once “as a matter of course,” the court said. Here, the plaintiffs amended their complaint before the defendants even filed a response. “Consequently, under ordinary rules of pleading and practice, the amended complaint would have replaced the original complaint lock, stock, and barrel.” The court distinguished this case from a line of authority that forbids plaintiffs from retroactively repairing flaws in their diversity standing. • CRIMINAL PROCEDURE Brief chat with lawyer was not consultation Evidence from a police interview with a criminal defendant was inadmissible, because, even though investigators allowed her to talk with counsel, they continued the interview later without her attorney present, the Georgia Supreme Court ruled on March 31. State v. Sammons, No. S08A0272. Edith Sammons was arrested for the murder of her husband. She was being questioned by sheriff’s deputies and executing a written statement when her attorney arrived. After conferring with counsel, Sammons declined to continue with the interview until she could rest. The next day, deputies continued the interview without her attorney present. A trial court granted Sammons’ motion to suppress evidence of what she said after her consultation with counsel. The state appealed. Affirming, the Georgia Supreme Court ruled that such interrogations violated the U.S. Supreme Court’s holding in Edwards v. Arizona, 451 U.S. 477 (1981), which held that, once an accused has invoked the right to counsel, the accused alone can initiate an interview with police. “We have held that merely allowing the accused to have a conversation with counsel does not obviate the rule propounded by Edwards v. Arizona,” the court said. Bolstering of testimony is reversible misconduct A prosecutor committed reversible misconduct by using “the government’s cloak of veracity” to bolster testimony by federal agents who were the sole witnesses to an alleged confession by an accused drug smuggler, the 5th U.S. Circuit Court of Appeals held on March 31. U.S. v. Gracia, No. 07-40245. Apolinar Gracia Jr. was arrested while crossing the Mexico-U.S. border as a passenger in a car that contained approximately 50 kilograms of cocaine hidden in a false floor. Although there was neither a written statement by Gracia nor an electronic recording, an agent testified at trial that Gracia provided details about the history and method of the smuggling operation. Gracia was convicted on four cocaine distribution counts. The 5th Circuit vacated the conviction and ordered a new trial, citing reversible plain error. It pointed to four statements by the prosecutor during closing arguments to the effect that the government agents were “very, very credible witnesses,” including that he asked jurors whether they thought that experienced agents “would put their careers and criminal prosecution on the line for committing the offense of aggravated perjury.” “Witness bolstering is particularly injurious when, as here, it involves the testimony of the only witnesses (and virtually the only inculpatory evidence) against a defendant,” the court said. “We cannot permit the prosecutor’s remarks to be swept under the rug by the broom of the harmless error doctrine.” • ELECTION LAW Florida voter ID law sustained in split ruling A federal judge improperly blocked enforcement of a Florida law that allows elections officials to rule out prospective voters who provide personal information that doesn’t match state records, the 11th U.S. Circuit Court of Appeals ruled on April 3. N.A.A.C.P. v. Browning, No. 07-15932. Organizations representing minority groups challenged enforcement of the 2005 Florida law, passed to comply with the federal Help America Vote Act of 2002 (HAVA). The Florida law required new voter registrants to disclose a driver’s license number or the last four digits of a Social Security number. State officials would reject the registration if that number didn’t match the state’s records. Mistakes by the state or the applicant could be corrected, but not necessarily in time to let the registrant vote. A federal district judge granted a preliminary injunction, ruling that the plaintiffs were likely to prevail under HAVA and the Civil Rights Act of 1964. The 11th Circuit reversed by a vote of 2-1. Although the requirements are stricter than provided for under HAVA, “on issues relating to voter registration and identification not specifically addressed by HAVA, Congress essentially punted to the states,” the majority said. The Civil Rights Act forbids denial of voting rights because of immaterial registration errors, but that applied to Jim Crow-style impediments, not to verification of a voter’s identification. In a dissent, Judge Rosemary Barkett said the Florida law as enforced violates both federal statutes at issue, plus the First and Fourteenth amendments. “It is inconceivable that a state would intend that a typographical or transpositional error on a registration application could not be corrected through irrefutable proof of a valid driver’s license or social security card to permit a Florida citizen’s vote to be counted,” she wrote. • EMPLOYMENT Title VII protects mixed-race marriage An employer can be subject to a Title VII claim for taking adverse actions against an employee because of the employee’s association or marriage to someone of a different race, the 2d U.S. Circuit Court of Appeals ruled on April 1 in a matter of first impression. Holcomb v. Iona College, No. 06-3815. Craig Holcomb, a white man, was an assistant basketball coach at Iona College in New York state. The head coach and another assistant coach were also white, while a third assistant was black. Holcomb was married to a black woman and the head coach was dating a black woman. After initial success with the basketball program, Iona’s record dipped significantly and some of the players got into trouble off court. Furthermore, the NCAA began investigating the school for possible rules infractions. The school’s athletic director, Shawn Brennan, and vice president, Richard Petriccione, who once allegedly applied an extreme racial slur against Holcomb because he was marrying “that Aunt Jemima,” decided over the head coach that Holcomb and the black assistant should be fired. The head coach was retained, Holcomb alleged, because it would cost the school too much to buy out his contract. Holcomb filed a Title VII lawsuit in a New York federal district court, alleging that he was fired because of his interracial marriage. The district court granted summary judgment for the school and the individual defendants, finding no link between any racism by Brennan or Petriccione and Holcomb’s firing. The 2d Circuit reversed, finding genuine issues of fact on the merits of Holcomb’s claim based on Petriccione’s “strikingly racist” remarks and because the white head coach and assistant were retained while Holcomb and the black assistant were fired. The ruling confirmed for the first time within the circuit that Title VII applies when a person alleges retaliation based on an interracial marriage. “[W]here an employee is subjected to adverse action because an employer disapproved of an interracial association, the employee suffers discrimination because of the employee’s own race,” the court said. • FRAUD Parents had no duty to warn of son’s HIV status A woman suffering from acquired immune deficiency syndrome (AIDS) cannot recover damages for fraudulent misrepresentation against her late fianc�’s parents, who she alleged concealed that he was suffering from the disease, the Illinois Supreme Court ruled on April 3. Doe v. Dilling, No. 104049. Jane Doe alleged that Betty and Kirk Dilling, parents of the late Albert Dilling, intentionally and falsely told her that he was not infected with the human immunodeficiency virus (HIV) or suffering from AIDS. Doe alleged that those denials caused her to delay the discovery of her own infection, preventing timely medical treatment. A jury awarded her $2 million in compensatory damages. An intermediate appellate court vacated the judgment and award, finding that Doe had not established that she relied on the allegedly fraudulent statements by the Dillings. The Illinois Supreme Court affirmed, noting that the tort of fraudulent misrepresentation traditionally has applied only to commercial transactions. The court distinguished from cases involving adoptive parents who recovered from adoption agencies, noting that the agencies had sole knowledge of the children’s health status and therefore bore duties of complete and honest disclosure. Other cases involving disease transmission targeted the person directly responsible. Here, there was insufficient evidence that his parents knew that Albert was HIV-positive, while Doe had ample evidence that he was sick before she ever met his parents. • INSURANCE LAW Ambiguity resolved in the policyholder’s favor An insurer that promises to defend a policyholder against claims by “persons” must defend against a claim by a corporation, because the policy didn’t specify that it meant “natural persons,” the 7th U.S. Circuit Court of Appeals held on April 4. Supreme Laundry Service LLC v. Hartford Casualty Ins. Co., No. 07-1781. Coinmach Corp. filed suit against a competitor, Supreme Laundry Service, which replaced it as manager of a condominium complex laundry room after Coinmach was fired. Supreme asked its insurer, Hartford Casualty Insurance Co., to defend a counterclaim that Supreme argued was covered by its comprehensive general liability policy. Hartford refused, claiming the policy’s promise to defend against claims by “persons” referred to “natural persons,” not corporations. An Illinois federal district court entered judgment in Hartford’s favor. Reversing, the 7th Circuit said the relevant policy language was ambiguous and did not clearly exclude corporations. “Ambiguities are resolved against the drafter of the policy,” the court said, and undefined terms are accorded their “plain, ordinary and popular meaning.” Under the applicable Illinois law, insurers must defend a claim that potentially falls within a policy. • INTERNET LAW Web site implicated in housing discrimination There is no shield under the Communications Decency Act for an online roommate referral service that asks subscribers to discriminate on the basis of age, sexual orientation and other protected statuses, the 9th U.S. Circuit Court of Appeals ruled on April 3. Fair Housing Council v. Roommate.com LLC, No. 04-56916. In order to match clients with compatible roommates, Roommate.com asks them questions about their sex, sexual orientation and whether they had children. It also asked whether potential roommates would be acceptable according to those categories. Local housing authorities sued, asserting violations of California and federal laws against housing discrimination. The district court held that the service was immune under 230 of the Communications Decency Act (CDA), which shields Internet service providers from liability for content posted by parties they cannot control. The housing authorities appealed. Reversing and remanding, the 9th Circuit said that CDA immunity does not extend to content that a Web site develops itself. Here, the objectionable content was generated in response to the site’s questions, which customers must answer if they want to use the service. That makes the service “much more than a passive transmitter of information provided by others; it becomes the developer, at least in part, of that information.” • INTELLECTUAL PROPERTY Japanese intestacy law governed patent transfer Intestacy law in the relevant overseas jurisdiction governs the transfer of patent ownership from a foreign-national patent holder upon the patent holder’s death, the U.S. Court of Appeals for the Federal Circuit ruled on March 31. Akazawa v. Link New Technology Int’l Inc., No. 07-1184. Yasumasa Akazawa, a Japanese resident, died without a will in March 2001. Under Japanese intestacy law, ownership of an American patent passed to his wife and daughters. The wife assigned all rights in the patent to Akira Akazawa. Akira then sued Link New Technology for patent infringement. A federal district court in California granted summary judgment to Link, ruling that only American patent law could govern a patent assignment. It was up to Akira to prove that an assignment had been made by the estate’s legal representative. The Federal Circuit reversed. The court faulted the lower court for focusing solely on 35 U.S.C. 261, which says that patent applications “shall be assignable in law by an instrument in writing.” Nothing in patent law “limits assignment as the only means for transferring patent ownership,” the court said. Patent rights are not automatically vested in an estate’s executor at death and until assigned in writing. State law, not federal law, typically governs patent ownership, so, in this case, the district court should examine Japanese law to determine the patent’s ownership. The evidence suggests that at the time of Yasumasa’s death his wife and daughters became the patent’s owners. No loss-of-consortium claims against agencies Neither a motor vehicle exception to governmental immunity nor the wrongful death act permit loss-of-consortium claims against a governmental agency, a divided Michigan Supreme Court ruled on April 3. However, it said, such a claim can be made against a government employee under Michigan’s gross-negligence exception. Wesche v. Mecosta County Road Commission, No. 129282. Beverly Wesche sued the Mecosta County, Mich., road commission for loss of consortium after a county employee driving a hydraulic excavator rear-ended her husband’s car, causing him spinal injuries. Robert Kik sued the township of Kinross, Mich., for loss of consortium after the ambulance transporting his pregnant wife overturned in a ditch, injuring her. He and his wife sued the county and the ambulance driver for the wrongful death and loss of society of their newborn, who was delivered early because of the accident and who died the same day. The state trial court ruled that governmental immunity applied to Wesche’s case, and the Michigan Court of Appeals affirmed. A state trial court said governmental immunity did not apply to the Kiks’ case. The Court of Appeals reversed on Robert’s loss of consortium claim, but affirmed on his claims for wrongful death and the loss of society. A special panel of the Court of Appeals convened to review the conflict between the outcomes and ruled that loss-of-consortium claims are allowed under the motor vehicle exception to the state’s governmental torts law. The claim against the ambulance driver was also allowed. The Michigan Supreme Court affirmed the Wesche outcome and the portion of the Kik ruling allowing the loss of society claim against the ambulance driver, but otherwise reversed the lower court. The state’s tort claims law waives immunity for “bodily injury” caused by government-owned vehicles, the court said, and “it is beyond dispute that a loss of consortium is not a physical injury to a body.” Because loss of society is not a “bodily injury,” either, the Kiks could not have overcome governmental immunity in their case over their daughter. Finally, individual employees like the ambulance driver are not immune from loss-of-consortium or society claims when gross negligence is alleged on their part.

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