Articles Posted in Federal Law

Atinderpal “Gavan” Singh, a commercial truck driver, was driving his tractor-trailer eastbound on Interstate 80 in Nebraska when this tragic crash occurred.

Freddie Galloway, a trucker for Ecklund Logistics Inc., was also driving eastbound on the same interstate. He was some distance ahead of the Singh truck. This incident occurred in late summer. A grass fire had started on the highway median, which created a smoke cover that affected visibility on the highway. Local fire and sheriff personnel were on the scene trying to contain the fire and control traffic at the same time.

Galloway heard about the fire on his CB radio while still several miles away and slowed his truck to 5 mph in a 75-mph zone.  He was driving at that speed for 5-10 minutes as he approached the area of the fire.

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Theodore Joas underwent a total knee replacement at a Wisconsin hospital receiving a Zimmer NexGen Flex knee implant.  Within a few years, he began experiencing pain in his new knee.  X-rays confirmed that the implant had loosened and required a surgical repair.

He brought a series of claims against Zimmer Inc., the implant manufacturer.  His case was transferred to a multi-district litigation in the Northern District of Illinois where it was eventually treated as a bellwether case.

The court applied Wisconsin law and granted summary judgment in favor of Zimmer.

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S.V. and Hemalatha Gopalratnam sued the laptop manufacturer Hewlett-Packard claiming that its battery pack maker, DynaPack Technology Corp. and battery cell manufacturer, Samsung SDI Co. Ltd. were a cause of the death of their son, Arun Gopalratnam who died in a fire in the basement bedroom of the Gopalratnam’s home. An autopsy showed that Arun’s death was caused by smoke inhalation.

The origin of this fire was said to have been near the mattress of Arun’s bed, according to Special Agent Antonio H. Martinez of the Wisconsin Department of Criminal Investigations. Included in the debris was the HP laptop, a Nokia cellphone and 2 or 3 laptop battery cells in the basement bedroom and a third laptop battery cell in the debris, which was shoveled into the backyard.

The lawsuit included claims of negligence, strict product liability and breach of warranty. To support these claims, the Gopalratnam family hired two expert witnesses who gave opinion testimony at trial that one of the three battery cells experienced “thermal runaway,” which generated high temperatures causing the cell to explode and catch fire.

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In 2014 the U.S. Supreme Court cast doubt on the legality of mandatory union fees for non-union members. The opinion of the high court did not strike the fee as being a constitutional violation; instead, they commented that the precedent validating the fees “appeared questionable on several grounds.”

That case decision, Pamela Harris v. Pat Quinn, encouraged those who oppose mandatory union fees; thus it is another Illinois case that is poised to be heard and decided by the high court. This new case is Mark Janus v. American Federal of State, County and Municipal Employees (AFSCME), which was filed in 2015. Gov. Bruce Rauner was originally a party plaintiff in the case, but he was dismissed. Other state workers argued that part of the Illinois Public Labor Relations Acts, which allows for the dues, violates the First Amendment because they help pay for unions’ political activity.

The plaintiffs in this case claim that nonmembers are still forced to pay 79 and 98 percent, respectively, of what full members of AFSCME and the Teamsters/Professional & Technical Employees Local Union are required to pay.

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The U.S. Court of Appeals for the Seventh Circuit has reversed a decision by a district court judge of the Southern District of Illinois. Reginald Pittman was a pretrial detainee in the Madison County Jail when he hanged himself from the bars of his cell with a blanket. He did not die, but he sustained brain damage that left him in a vegetative state, cared for entirely by his mother without any government benefits.

Pittman had left a suicide note in which he stated that he was killing himself because the guards were not letting him see crisis counselors. His mother brought this lawsuit against Madison County, as well as jail staffers, charging deliberate indifference by guards and other jail staff to the risk of his attempting suicide, in violation of the Eighth Amendment of the U.S. Constitution.

In 2011, the federal district court judge granted summary judgment in favor of all the defendants, but the 7th Circuit Court of Appeals reversed as to Randy Eaton and Matt Warner, two of the jail’s guards, on the ground that there was a genuine issue of fact as to whether they had been deliberately indifferent to the risk that Pittman would attempt suicide.

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Baxter International was sued in a second wave of multidistrict litigation filed by hemophiliacs who alleged that they contracted HIV or Hepatitis C from contaminated blood products. Baxter paid $15 million to settle the lawsuits and then filed its own lawsuit against Axa Versicherung and a German insurance company for indemnification.

During discovery, Axa demanded that the lawyers handling the insurance coverage matter for Baxter turn over its memos and e-mails that it delivered to it. Baxter blacked out or redacted the lawyer’s analysis of insurance coverage issues in the production material it did produce. In other words, Baxter decided to edit the discovery it produced, saying that Axa was not entitled to the legal analysis found in some of the e-mails and memos.

Axa’s motion to compel relied on the Illinois Supreme Court opinion in Waste Management v. International Surplus Lines Insurance Co., 144 Ill.2d 178 (1991), which ruled that attorney-client privilege did not apply to the insured’s communications with its counsel about the underlying tort litigation.

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Missouri’s HB 153 became law recently, supplanting the expert witness screening standard set out in the Federal Rules of Evidence 702, 703, 704 and 705. Missouri’s new expert witness standard  effectively submits expert testimony in most civil and criminal cases to the analysis set forth in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993).

Until the law enactment, R.S.Mo. 490.065 has set forth the requirements for admission of expert testimony in Missouri state courts. In its present form, the language of the statute has varied significantly from the familiar expert witness standard set forth in the Federal Rules of Evidence and the rules of numerous sister states that track the federal rules.

Missouri appellate decisions have noted on occasion that Daubert and its progeny could provide “guidance” when the federal rules and the Missouri rules match up. See, e.g. State Bd. of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146, 155-156 (Mo. 2003) (Wolff, J, concurring in part and dissenting in part), and Goddard v. State, 144 S.W.3d 848, 852-853 (Mo. App. S.D. 2004).

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In a federal court of appeals, the Federal Rule of Civil Procedure 9(b) was addressed by the Seventh Circuit Court of Appeals in Chicago regarding the specificity required in complaints. On Sept. 1, 2016, the U.S. Court of Appeals for the Seventh Circuit in Chicago affirmed dismissal of the amended complaint pursuant to the particularity requirement of Federal Rule of Civil Procedure 9(b).

In this case, a nurse alleged that a number of practices at the Acacia Mental Health Clinic where she worked were not medically necessary. The allegations were that the clinic required patients to see multiple practitioners before receiving medications; required patients to undergo mandatory drug screenings at each visit; and required patients to come to the clinic in-person in order to receive a prescription or speak to a doctor. It was also alleged that the clinic misused a billing code.  This was the only claim the Seventh Circuit permitted to go forward. In dismissing the majority of the complaint, Seventh Circuit began with a robust discussion of the importance of Rule 9(b) in screening out a baseless False Claims Act (FCA).

“Rule 9 requires heightened pleading standards because of the stigmatic injury that potentially results from allegations of fraud. We have observed, moreover, that fraud is frequently charged irresponsibly by people who have suffered a loss and want to find someone to blame for it. The requirement that fraud be pleaded with particularity compels the plaintiff to provide enough detail to enable the defendant to repose swiftly and effectively if the claim is groundless. It also forces the plaintiff to conduct a careful pretrial investigation and thus operates as a screen against spurious fraud claims.”

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The Illinois Department of Corrections (IDOC) has entered into a settlement agreement that will provide a process by which parolees will learn their rights and receive representation of lawyers during their parole revocation process.

There was no availability of assigned legal counsel for parole violators before this agreement.  This agreement was reached with the Department of Corrections in a case that was represented by Alan S. Mills of the Uptown People’s Law Center.  The U.S. District Court Judge Amy St. Eve of the Northern District of Illinois in Chicago approved the agreement on a preliminary basis.

According to the lawsuit, the state cites a lack of funds when it denies any parolee’s request for appointed counsel during revocation proceedings.  But that practice violates due process requirements found in the U.S. Supreme Court’s opinion, Gagnon v. Scarpelli, 411 U.S. 778 (1973).

The 7th Circuit Court of Appeals in Chicago has affirmed a district court decision where sanctions were allowed in the form of attorney fees. The court of appeals stated that under Federal Rule 37, sanctions may include an order to pay the amount of reasonable expenses incurred in preparing the motion for sanctions, including attorney fees.

In March 2012, Angel Houston sued Hyatt Corp. and the Hyatt Regency Inn for breach of contract, intentional misconduct and negligence. The lawsuit arose out of injuries Houston suffered after falling at the downtown Indianapolis Hyatt Hotel during a hotel-sponsored New Year’s Eve party on Dec. 31, 2010.

Houston claimed that Hyatt chose not to provide a safe and secure environment for the party and that this failure was the proximate cause of her injuries. Damages were sought in excess of $1 million.

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