Archive for
January, 2007
Published
January 29th, 2007
in
Briefs, Of General Interest, Uncategorized |
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A San Francisco suburb may prohibit lighting up in multi-unit dwellings, potentially drawing a new line in tobacco war.
When the City Council of a San Francisco suburb voted to consider what could be the most stringent tobacco regulation in America, anti-smoking activists cheered. Banning smoking everywhere but single-family detached homes and their yards would be a big step forward, even in health-conscious California.
Then the blogosphere erupted. Side-by-side portraits of Councilwoman Coralin Feierbach and Nazi SS chief Heinrich Himmler were posted on a smoking-rights website. Threats were e-mailed to City Hall, and police and prosecutors were called in to investigate.
A strict new ordinance is still set to be unveiled this winter for more public discussion and an eventual vote. But instead of just the flat-out ban on lighting up in apartments, condominiums and public places that captured worldwide attention, City Atty. Marc Zafferano said the first draft would be a menu of restrictions from which council members could pick and choose.
So although the bedroom community may not make the kind of history envisioned in the early headlines ("… to be first U.S. city to ban all smoking"), it still could make history of another sort, by finding a line this tobacco-averse nation is unwilling to cross — at least for the moment — in pursuit of better public health.
Even though nearly two-thirds of Americans have smoke-free policies in their own homes, according to the 2000 census, restrictions on smoking in multi-unit buildings, in the very sanctity of one’s own living room, constitute a new frontier in tobacco law.
But though the U.S. surgeon general declared last year that there is no safe level of exposure to secondhand smoke, acceptance may not be here quite yet. Just check out the Internet responses to the council’s unanimous pre-holiday vote directing the city attorney to draft the strict new ordinance.
Published
January 29th, 2007
in
Briefs, Free Speech, Of General Interest, Uncategorized |
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Anne Lemen just wants to say what she pleases about a Balboa Island restaurant and bar. A court has forbidden her to, and that sets up a dispute over prior restraint.
The most important free speech case now before the California Supreme Court carries neither the heft of the Pentagon Papers nor the emotion of Nazis seeking to march in Skokie, Ill.
In fact, the figure at the center of the case, a Christian evangelist in Newport Beach, makes a highly unlikely 1st Amendment hero. Anne Lemen, 58, says she doesn’t care about free speech or the constitutional question that her case, like the Pentagon Papers before it, poses: When may government prevent speech before it has occurred?
Lemen just wants to tell people that she believes her nemesis, the Village Inn on Balboa Island, is mafia, as are her former husband and the guards at a local church, and the police are in cahoots. And, she wonders aloud, why would anyone accuse an innocent Christian woman of lying?
On top of that, Lemen contended, "the bar," as she calls the Village Inn, has tried to murder her.
Lemen owns a cottage only feet from the restaurant and led a campaign to restrict it because she said it disrupted the neighborhood. Aric Toll, 41, a chef who bought the restaurant and bar with his parents, filed a defamation lawsuit against Lemen, saying she was ruining his business.
After a trial, a judge ordered Lemen to stop videotaping Toll’s customers and barred her from telling anyone that the bar makes sex videos, dabbles in child pornography, distributes illegal drugs, encourages lesbian activities, has mafia links, is a whorehouse or sells tainted food — all false statements, the court said, that Lemen had made. She appealed the order before it could be enforced.
Courts around the country have disagreed over whether such "prior restraint" orders in defamation cases are constitutional, and cases involving them are multiplying as people sue to stop alleged defamation on the Internet. The U.S. Supreme Court has upheld prior restraint in cases of national security and obscenity, but not in a defamation complaint. When it took up the question in a case brought by the late attorney Johnnie Cochran against a picket, the high court said only that the order against the picket was unconstitutionally broad.
Duke University constitutional law professor Erwin Chemerinsky is paying his own way to California and working free of charge to tell the California Supreme Court today that the order violates Lemen’s right to free speech.
If Lemen loses, such court orders might become "a regular remedy in defamation cases," Chemerinsky said. Newspapers could even be barred from covering a person who won one, he said. In his view, the only appropriate remedy for defamation is monetary damages.
Balboa Island is a densely packed maze of mostly small but expensive homes, some of which are adjacent to stores and restaurants. The Newport Beach island’s reputation for rowdy nightlife has given way to a sedate atmosphere as rising home prices have turned vacation rentals into year-round homes.
The bar has been on Marine Avenue since the 1930s, and regulars reportedly have included James Cagney, Humphrey Bogart and Bing Crosby. Lemen’s dispute with Toll began when he and his family bought it in November 2000. Some neighbors, including Lemen, had also feuded with the previous owner.
Published
January 24th, 2007
in
Briefs, Case Settlements, Uncategorized, Whistleblower Issues |
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Former Patriots Football Coach Sues Over Botched Surgery
Charlie Weis, former offensive coordinator for the New England Patriots, will go to trial next month in a lawsuit against two Massachusetts General Hospital physicians. The former coach underwent gastric bypass surgery that was followed by serious complications. Weis has made efforts to prevent the ordeal from gaining publicity.
Jury Finds Kerr-McGee Liable in Oil Royalty Lawsuit
The Kerr-McGee Corporation was found to have cheated the government out of millions of dollars in royalties on oil it produced in publicly owned waters. The whistleblower lawsuit was brought on by the former top auditor for Interior Department after he was ordered by the agency to drop his audit findings. The jury determined that Kerr-McGee underpaid the government $7.5 million in royalties.
BioPerformance Penalized for False Gas-Mileage Booster
The TX Attorney General filed an agreed judgment against BioPerformance, a company that manufactured a fake gas-mileage booster. The company claimed their pills could increase a vehicle’s gas mileage by as much as thirty percent if placed in the fuel tank. The state’s investigation revealed the pills consisted of an ingredient used in making mothballs, and were not consistent with the company’s claims.
Cell Therapeutics Settles Inquiry Into Leukemia Drug
Cell Therapeutics agreed to a $10.5 settlement to resolve a federal investigation into their marketing of the leukemia drug, Trisenox. The government had been reviewing allegations that the drug was marketed for unapproved uses. The claims were brought on by an individual in a whistleblower lawsuit.
Bayer Settles Numerour States’ Drug Risk Claims
Thirty states agreed to an $8 million settlement with Bayer Corp. over allegations that the company did not adequately warn consumers of Baycol’s health risks. Baycol, a cholesterol-reducing drug, posed risks including a severe muscle reaction that could cause kidney failure. The drug was voluntarily withdrawn from the market in August 2001.
Published
January 24th, 2007
in
Briefs, Of General Interest, Recent Rulings, Uncategorized |
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An appeals court reversed a $20 million verdict in favor of five State Farm Insurance agents who claimed they were wrongfully terminated for criticizing the company’s policies. The appeals court ruled that the agreement between State Farm and the agents were clearly terminable at will by either party. The plaintiffs’ attorney will seek reconsideration of the ruling by a three-judge panel of the Missouri Court of Appeals.
Published
January 23rd, 2007
in
Briefs, Class-Action Suits, Of General Interest, Product Liability, Uncategorized |
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The American pharmaceutical giant Eli-Lilly has consistently denied any link between Zyprexa, its antipsychotic drug, and diabetes, was concerned about the side-effects of the drug as early as 1998, according to leaked court documents.
Those leaked court documents suggest that the company was aware of the risks of weight gain, hyperglycemia and diabetes associated with the drug but presented them as common problems across the whole class of schizophrenia drugs.
Published
January 23rd, 2007
in
Bodily Injuries, Briefs, Case Settlements, Criminal Issues, Of General Interest, Uncategorized |
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An appellate court Monday reversed the murder conviction of a 13-year-old athlete who struck and killed a fellow Pony League player with a baseball bat, ruling that the boy did not intend to murder but acted out of passion.
Instead, the court declared the boy guilty of voluntary manslaughter and ordered that he be re-sentenced.
The ruling adds a new dimension to a case that rattled the community where the killing took place, and raised questions about the increasingly contentious nature of youth sports. Witnesses said that before the attack, the victim had taunted and bullied the boy about losing a game.
The ultimate impact of the appeals decision was unclear because the defendant, whose name is being withheld because of his age, was placed in the custody of state juvenile officials, who generally have the authority to keep offenders until age 25.
Published
January 22nd, 2007
in
Criminal Issues, Misconduct, Of General Interest, Recent Rulings, Uncategorized |
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In Michigan, adultery has long been a felony.
But when a judge warned that unfaithful spouses could technically be sentenced to life in prison, an obscure and seldom-used provision of the state’s criminal law became the subject of international scrutiny.
It’s unclear how serious Judge William Murphy of the Michigan Court of Appeals was when he pointed out the possible consequences of extramarital sex. Some observers say the liberal judge was making a political point by taking a strict interpretation of the law to an absurd conclusion.
Others have suggested Murphy was trying to embarrass Michigan Atty. Gen. Mike Cox, whose office triggered the ruling by appealing for a harsher sentence for a man who traded drugs for sex. In 2005, Cox acknowledged having an adulterous relationship.
Murphy’s adultery bombshell was a footnote in a November ruling on a drugs-for-sex case. But since a Detroit Free Press columnist wrote about the footnote last week, blogs and radio talk shows have debated the pros and cons of life sentences for cheating spouses.
The ruling came in the case of Lloyd Waltonen, 43, a man from Charlevoix in northern Michigan, who supplied a cocktail waitress with the prescription painkiller OxyContin in exchange for sex. Last year, Charlevoix Circuit Judge Richard M. Pajtas sentenced Waltonen to four to 20 years in prison, but dismissed four counts of firstdegree criminal sexual conduct, punishable by a life term, on the basis that the sex was consensual.
The state attorney general’s office successfully appealed Pajtas’ ruling, citing an obscure provision of Michigan’s criminal law, which states that a sexual act committed at the same time as a felony constitutes criminal sexual conduct.
An appellate panel found Waltonen guilty of criminal sexual conduct. He has asked the state Supreme Court to consider an appeal.
In the opinion, Murphy wrote that although legislators may have drafted the law conceiving of scenarios in which there was a violent felony involving forced sex, he was "curtailed by the language of the statute from reaching any other conclusion."
Murphy wrote that a person was technically guilty of firstdegree criminal sexual conduct any time he or she "engages in sexual penetration in an adulterous relationship."
He noted that state law defines first-degree criminal sexual conduct as sexual penetration involving another felony. Because adultery is a felony, he wrote, adulterous sex could result in life imprisonment.
Such a sentence is unlikely. No one in Michigan has been charged with adultery since 1971.
Published
January 19th, 2007
in
Briefs, Case Settlements, Of General Interest, Uncategorized |
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Is There Ever a Valid Time to Sue?
A resident of Alabama sued for exposure to benzene that allegedly caused him to be stricken by leukemia. According to Alabama law, if he sued when he was first exposed to benzene then it would have been too early, but now that he developed leukemia years later it is too late to sue. This legal Catch-22 is one of many protections big businesses have against legitimate lawsuits.
Malpractice Insurance Crisis Improving in Illinois
ISMIE Insurance Co., Illinois’s largest malpractice carrier, has plans to partially lift a moratorium on accepting new businesses, crediting better economics and litigation reforms in the state. The insurer provides coverage for 13,000 doctors and will accept at least 400 new physician policyholders. Prior to the moratorium, the few who were allowed to buy malpractice insurance were doctors who were part of clinics already insured by ISMIE and doctors who were fulfilling their residencies and were graduating and needed insurance. The Illinois Trial Lawyers Association believes greater disclosure on how they set rates is the key reason they are covering more doctors.
Court Allows Negligence Suit Against Bars
The Mississippi high court has allowed a paralyzed man to sue several bars for serving him alcohol as a minor. The court had rejected the man’s claims that the bars knowingly served him alcohol when he was intoxicated, but did allow him to sue for negligence. The man admitted to having carried a fake ID that night when his vehicle collided with another car, leaving him paraplegic.
Judge Rules Former CIA Agency Can Continue Lawsuit Against CIA
A federal judge has ruled that a man suing the CIA for wrongful termination may proceed with his lawsuit. According to the ruling, the former agent had the right to argue his termination was based on false information in his employee file. The lawsuit accused the CIA of performing two "sham investigations" of him before firing him in 2004.
Omni Hotel Facing Lawsuit Over Child’s Balcony Fall
A divorced couple is suing Omni Hotel Management Corp. for the death of their 20-month-old son. The couple alleges that Omni should have known that the supports for their balcony railings were spaced too wide apart to prevent young children from slipping through. The hotel contends that the mother was at fault because she was "too busy partying to watch her son."
Jury Finds For Passenger Mistaken For a Terrorist
In a landmark post 9/11 verdict, a jury ruled against American Airlines for suspecting a computer consultant of being a Middle Eastern terrorist. The man was removed from his flight by state police for frightening the flight crew by making "inappropriate, suspicious comments." The consultant was awarded $400,000 by the jury.
Wyeth Accused of Deceiving Women About Drug’s Cancer Risk
In a retrial over Wyeth’s menopause treatment Prempro, the plaintiff’s lawyer alleged the company downplayed the drug’s risk of cancer. Wyeth also allegedly failed to study Prempro’s risks before putting it on the market in 1995. The company faces over 5,000 similar lawsuits involving Prempro and a separate menopause treatment, Premarin.
Maternity-Clothing Retailer Settles Discrimination Claims
A lawsuit against Mothers Work Inc. accused the company of refusing to hire qualified applicants because they were pregnant. The lawsuit also alleged the company retaliated against an assistant manager who complained about the discrimination. The company settled the cases for a total of $375,000.
Published
January 16th, 2007
in
Of General Interest, Recent Rulings, Uncategorized |
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A Federal appeal court has vacated the sentence of "millennium bomber" Ahmed Ressam, who was arrested near the U.S.-Canadian border and convicted of plotting to bomb Los Angeles International Airport at the turn of the millennium.
Ressam was arrested in December 1999 In Port Angeles, Wash., when he drove off a ferry from British Columbia with a trunk full of explosives. Prosecutors said he was intent on bombing the airport on the eve of the millennium.
He was sentenced to 22 years in prison after being convicted of all nine charges. The 9th U.S Circuit Court of Appeals in San Francisco reversed his conviction on one of the charges and sent the case back to a lower court judge to issue a new sentence and explain the rationale behind the original 22-year term.
The decision does not necessarily mean the defendant will get a shorter term, as federal prosecutors said the original sentence was too light and judges are given wide latitude to sentence defendants as they see fit.
Published
January 16th, 2007
in
Free Speech, Military Law, Uncategorized |
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THE PENTAGON has disavowed some offensive criticism by one of its officials regarding American lawyers who have represented accused terrorists imprisoned at the U.S. naval base at Guantanamo Bay, Cuba. But the crankish comments of Charles "Cully" Stimson, the deputy assistant secretary of Defense for detainee affairs, reflect a more pervasive reluctance by the Bush administration to acknowledge that injustices have occurred at Guantanamo.
Sounding more like a first-time caller than a government official, Stimson told a radio interviewer last week that "when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms." Not content to float the idea of a boycott, Stimson, a lawyer too, speculated darkly that although some attorneys representing detainees may be doing so as a public service, "others are receiving monies from who knows where, and I’d be curious to have them explain that." In an earlier period in U.S. history, that sort of hit-and-run insinuation was called McCarthyism.
Amid condemnation of Stimson’s remarks from the legal profession, a Pentagon spokesman said they "do not represent the views of the Department of Defense or the thinking of its leadership." For good measure, Atty. Gen. Alberto R. Gonzales said that "good lawyers representing the detainees is the best way to ensure that justice is done in these cases."
Many of the lawyers involved in detainee issues on a pro bono basis say they are motivated by loyalty to the Constitution, which, in their opinion, the administration has sometimes appeared eager to overlook. Advocacy on behalf of due process is generally a form of patriotism and public service. Criminal prosecutors aren’t usually in the business of tarnishing defense attorneys, for good reason, and it’s important that the government maintain the same professionalism when prosecuting the war on terror.
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