News

Case Summaries

Admiralty

[02/25] Bessemer & Lake Erie R.R. Co. v. Seaway Marine Transp.
In an admiralty action seeking recovery of repair costs and lost profits against a cargo ship after it struck a land-based coal-loading machine operated by plaintiff, judgment of the district court is affirmed in part, reversed in part and remanded where: 1) district court's grant of summary judgment as to liability is reversed as there is a genuine dispute of fact over plaintiff's comparative negligence; and 2) district court's rejection of plaintiff's lost-profits claim is affirmed as plaintiff did not adequately disclose the basis of its lost-profits claim.

[02/22] Cianbro Corp. v. George H. Dean, Inc.
In an in rem maritime lien action, district court's grant of summary judgment in favor of plaintiff and an order issuing a declaratory judgment to the effect that plaintiffs' vessels were not subject to a maritime lien in favor of defendant is affirmed as defendant failed to make the factual showing that it provided necessaries to the vessels as is required by 46 U.S.C. section 31342(a).

[02/03] ProShipLine Inc. v. Aspen Infrastructures Ltd.
In an action to secure a maritime attachment, district court's order denying plaintiff's motion to compel defendant to post security in lieu of garnishment is affirmed where a district court lacks the legal capacity under the Admiralty Rules to order a party to post security in lieu of garnishment. However, the district court's order equitably vacating plaintiffs' Rule B writ and exonerating security posted for that writ is reversed where the district court abused its discretion by concluding that it was bound by res judicata to vacate the writ to conform with the Southern District of New York's decision to vacate the writ involved in a related action pending there.

[01/28] Aqua Log, Inc. v. Georgia
In two in rem admiralty actions seeking to salvage logs lying at the bottom of Georgia's rivers, the district court's denial of the state's motion to dismiss based on sovereign immunity is affirmed where that doctrine did not apply because the state did not have possession of the logs.

[01/21] Misener Marine Constr., Inc. v. Norfolk Dredging Co.
In an action arising out of a dredging contract dispute, a district court's order denying attorney's fees to defendant-counterclaimant is affirmed where the American Rule barring the shifting of attorneys' fees was a characteristic feature of maritime law, which governed the interpretation of the contract between the parties.

[01/11] Equatorial Marine Fuel Mgmt. Servs. Pte. Ltd. v. MISC Berhad
In an appeal from the district court's order vacating a maritime attachment of defendant's property, the order is affirmed where the district court properly vacated the attachment because plaintiff failed to show it had a valid prima facie breach of contract or unjust enrichment claim against defendant.

[01/08] APL Co. Pte. Ltd. v. Blue Water Shipping U.S. Inc.
In an action for breach of contract based on expenses related to cargo shipped as agreed but left uncollected by its owner at the dock, judgment for plaintiff with a reduced damages award against defendant is vacated in part where the trial court's obligation was to determine whether the mitigation efforts actually chosen in those unaccustomed shoes were reasonable, not whether hindsight suggested that an objectively better choice was available.

[12/24] US v. Banjoko
Defendant's conviction for stowing away on a vessel that entered U.S. jurisdiction is affirmed where: 1) intent to be transported to the U.S. was not an element of the 18 U.S.C. section 2199 offense; and 2) Congress intended to apply section 2199 extraterritorially, as indicated by the statute's language.

[11/23] Lee v. Astoria Generating Co.
In an action for indemnification arising out of an accident that occurred on navigable waters, the Appellate Division's order reversing summary judgment for defendants is reversed where a barge containing an electricity generating turbine is a vessel under 33 U.S.C. section 905(b) of the Longshore and Harbor Workers' Compensation Act, and that provision preempted plaintiff's New York State Labor Law sections 240(1) and 241(6) claims.

[11/23] Sherwood v. Marquette Transp. Co., LLC
In plaintiff's suit against his employer under the Jones Act and general maritime law for injuries he suffered while working as a deckhand, defendant-employer's appeal of a district court's denial of its motion to stay the suit in favor of arbitration is dismissed for lack of jurisdiction under 9 U.S.C. section 16(a)(1)(A) as: 1) section 16 is part of the Federal Arbitration Act, and as such, under the language of section 1, does not apply to any employment contract involving a seaman; and 2) section also is inapplicable, and defendant's motion for a stay did not rely on it.

[11/13] Hawknet, Ltd. v. Overseas Shipping Agencies
In an appeal from the district court's order vacating the attachment of an electronic funds transfer (EFT), the order is affirmed and the case is remanded for an order to show cause why the action should not be dismissed for lack of personal jurisdiction where: 1) the rule announced recently in Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., __ F.3d __, No.08-3477, 2009 WL 3319675 (2d Cir. Oct. 16, 2009), applies retroactively; and 2) a party's failure to assert an argument prior to the announcement of a decision which might support it does not constitute waiver.

[11/05] Solana v. GSF Dev. Driller I
In an admiralty action for a percentage of the salvage value of a drilling unit, summary judgment for defendant is reversed where the record did not support the district court's conclusion that, as a matter of law, the parties agreed that the plaintiffs would be compensated in the same manner that they had previously been compensated by defendant.

[10/27] Becker v. Tidewater Inc.
In an action based on injuries sustained by plaintiff on an oil rig owned by one defendant and operated by another defendant, the district court's judgment holding the operator 55% liable for plaintiff's injuries and the owner 45% liable is affirmed in part where: 1) the reciprocal indemnity agreement between defendants obligated the operator to indemnify the owner for plaintiff's injuries; and 2) the district court did not clearly err in determining that the owner was not the superseding cause of the incident. However, the judgment is reversed in part where: 1) the operator's negligence in failing to properly warn employees how to operate certain machinery on the boat should not have been characterized by the district court as time-charterer negligence; and 2) the parties' agreement only entitled the owner to attorney's fees incurred in defending the underlying tort action. (Superseding opinion)

[10/21] Doyle v. Graske
In an action based on injuries sustained by plaintiff while on defendant's boat, judgment for plaintiff is affirmed in part where: 1) substantial evidence supported the district court's conclusion that defendant breached a duty of reasonable care if plaintiff was seated on the bow cushion when the boat came on plane; and 2) the district court's finding that defendant's negligence was a proximate and substantial cause of plaintiff's injuries was not clearly erroneous. However, the judgment is reversed in part where federal admiralty law did not allow for recovery of loss of consortium damages in negligence matters occurring outside territorial waters.

[10/16] Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd.
In defendant's appeal from the district court's order vacating portions of an order of maritime attachment and garnishment, the order is affirmed in part where electronic fund transfers (EFTs) being processed by an intermediary bank are not property subject to attachment under Rule B of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions. However, the court of appeals remands the cause for further proceedings with respect to the remaining portions of the attachment order affecting EFTs of which defendant was the originator.

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Civil Rights

[03/09] Zia Trust Co. v. Montoya
In an action for excessive force brought by family members of a man defendant-officer shot and killed while responding to a domestic disturbance, denial of summary judgment based on qualified immunity is affirmed where the court could not say that a van fifteen feet away, which according to the plaintiffs was clearly stuck on a pile of rocks, gave defendant probable cause to believe that there was a threat of serious physical harm to himself or others that would justify his use of force.

[03/09] Espinosa v. City & County of San Francisco
In a 42 U.S.C. section 1983 action claiming excessive force by defendants-officers, denial of summary judgment based on qualified immunity is affirmed where: 1) defendants failed to show as a matter of law that plaintiff's decedent did not have a reasonable expectation of privacy; 2) the district court properly found that defendants failed to show as a matter of law that the emergency and exigency exceptions to the Fourth Amendment warrant requirement applied; 3) defendants failed to show that there were no questions of fact regarding whether a security guard had apparent authority to consent and implied consent; and 4) the district court did not err in finding that there were genuine issues of fact regarding whether the officers intentionally or recklessly provoked a confrontation.

[03/09] Equal Employment Opportunity Comm'n v. Hosanna-Tabor Evangelical Lutheran Church & Sch.
In an employment discrimination and retaliation action brought by a teacher at a religious school claiming violations of the ADA, the district court's grant of summary judgment in favor of the defendant based on the "ministerial exception" is vacated and remanded as, given the factual findings relating to plaintiff's primary duties as a teacher, the district court erred in its legal conclusion classifying her as a ministerial employee.

[03/09] Redd v. Wright
In a 42 U.S.C. section 1983 action arising out of plaintiff inmate's confinement in tuberculosis hold following his refusal to submit to tuberculosis testing, summary judgment for defendants is affirmed where: 1) prior precedent did not "clearly foreshadow" a holding that the testing policy, as applied in this case, violated plaintiff's Free Exercise rights; 2) it could not reasonably be said that defendants acted in violation of clearly established Eighth Amendment law by implementing the policy; and 3) it was not clearly established that plaintiff was entitled to some kind of notice that religious objectors could be exempt from the policy.

[03/08] McBeth v. Himes
In a 42 U.S.C. section 1983 action arising out of an investigation by the sheriff's office and the Colorado Department of Human Services that resulted in plaintiff surrendering her license to run a daycare facility in Colorado, partial summary judgment based on qualified immunity to defendant-officials is affirmed in part where: 1) plaintiff voluntarily relinquished her license before any suspension proceedings could take place; and 2) defendants made a prima facie showing that they acted objectively reasonably when they sought suspension of plaintiff's daycare license. However, the order is reversed in part where plaintiff failed to allege and prove that the state officials lacked cause to seek suspension of her license.

[03/05] Bustos v. Martini Club Inc.
In a 42 U.S.C. section 1983 action based on a late-night confrontation with several off-duty police officers, dismissal of the action is affirmed where: 1) the election of remedies provisions in Tex. Civ. Prac. & Rem. Code 101.106 applied to state law intentional tort claims against a governmental unit and its employees; 2) plaintiff did not allege facts to suggest that the officers who assaulted him misused or abused their official power; and 3) bystander officers had no constitutional duty to prevent the alleged assault.

[03/05] Quasius v. Schwan Food Co.
In an employment discrimination action, summary judgment for defendant is affirmed where defendant failed to file a motion to withdraw his dispositive admissions after the district court provided ample notice and opportunity to do so.

[03/05] Doe v. S. Carolina Dep't of Soc. Servs.
In a 42 U.S.C. section 1983 action brought by a minor child and her adoptive parents against defendant, an Adoption Specialist with the South Carolina Department of Social Services (SCDSS), alleging violations of their substantive due process rights under the Fourteenth Amendment and state law claims against SCDSS under the South Carolina Tort Claims Act (SCTCA), judgment is affirmed in part, vacated in part, and remanded where: 1) when a state involuntarily removes a child from her home, thereby taking the child into its custody and care, the state has taken an affirmative act to restrain the child's liberty, triggering the protections of the Due Process Clause and imposing "some responsibility for the child's safety and general well being"; 2) because it would not have been apparent to a reasonable social worker in defendant's position that her actions violated the Fourteenth Amendment, she is entitled to qualified immunity; 3) prospective adoptive parents have no substantive due process right to the disclosure of a child's history of sexual abuse; and 4) district court's grant of defendants' motion for summary judgment on the state law claims for gross negligence against SCDSS is vacated and remanded for consideration of the applicability of section 15-78-60(25).

[03/04] Keup v. Hopkins
In a 42 U.S.C. section 1983 action by a prisoner claiming defendant prison personnel prevented plaintiff from sending drawings outside the prison in violation of the First Amendment, judgment for plaintiff is affirmed in part where: 1) defendants did not raise their mootness or exhaustion defenses at trial; and 2) because the district court directed a verdict for plaintiff, he was the prevailing party. However, the judgment is reversed in part where, when a prisoner plaintiff only receives nominal damages of $1.00, 42 U.S.C. section 1997e(d)(2) caps attorney fees at $1.50.

[03/04] Uphoff Figueroa v. Alejandro
In plaintiff's action against his employer, the Puerto Rico Electric Power Authority (PREPA) and several PREPA officials, claiming that the new Popular Democratic Party (PDP) regime discriminated against him because he was a member of the New Progressive Party (NPP), judgment in favor of the defendants is affirmed where: 1) under Branti v, Finkel, 445 U.S. 507 (1980), and its progeny, the position of administrator is not within First Amendment protection because it is a policy position; 2) political discrimination and retaliation claims under the First Amendment cannot be restated as claims under the Equal Protection Clause; and 3) plaintiff did not state a claim under the Fair Labor Standards Act because he did not allege he was involved in FLSA-protected activity.

[03/04] Budde v. Kane County Forest Pres.
In a police chief's action against his former employer claiming discrimination based on his disability of alcoholism, in violation of the ADA, summary judgment in favor of the defendant is affirmed where: 1) the employer terminated the plaintiff because of his misconduct, not due to discrimination; 2) plaintiff was not "qualified" to perform his job as police chief based on his failure to comply with workplace rules and his inability to operate a vehicle; and 3) plaintiff's claims for failure to accommodate his alcoholism and retaliation for seeking an accommodation are without merit.

[03/04] Schreiber v. Moe
In plaintiff's 42 U.S.C. section 1983 against a police officer, district court's judgment is affirmed in part, reversed in part and remanded where: 1) no reasonable jury could find that defendant violated the Fourth Amendment either by entering plaintiff's home or by remaining inside as long as he did; 2) defendant violated plaintiff's right to be free from excessive force, as striking a neutralized suspect who is secured by handcuffs is objectively unreasonable; and 3) because plaintiff's right to be free from excessive force was clearly established, defendant is not entitled to qualified immunity on the excessive force claim.

[03/03] Jackson v. Cal-Western Packaging Corp.
In an age discrimination action, summary judgment for defendant-employer is affirmed where: 1) plaintiff did not show that a comment by a coworker was proximate in time to the termination or related to the employment decision, and thus the comment could not qualify as direct evidence; and 2) plaintiff's assertion of innocence alone did not create a factual issue as to the falsity of defendant's proffered reason for terminating him.

[03/02] Keating v. Miami
In an action alleging violations of plaintiffs' First and Fourth Amendment rights during a demonstration held in November 2003 outside the Free Trade Area of the Americas (the "FTAA) meeting in Miami, the denial of summary judgment based on qualified immunity on plaintiffs' First Amendment claims against certain defendants is affirmed where plaintiffs satisfied the heightened pleading requirement for a 42 U.S.C. section 1983 claim under a supervisory liability theory by alleging a causal connection established by facts that supported an inference that defendants directed subordinate officers to act unlawfully. However, a denial of summary judgment on First Amendment claims against another defendant is reversed where the protesters failed to allege that defendant violated their First Amendment rights in his supervisory capacity by failing to stop the subordinate officers from using less than lethal weapons to disperse a crowd of peaceful demonstrators because defendant was merely present, and could not contravene the orders directing such unlawful activity given by the police chief.

[03/02] Richardson v. Johnson
In a 42 U.S.C. section 1983 action by a prisoner against prison authorities based on an assault against him by another inmate, dismissal of the complaint is affirmed in part where plaintiff failed to allege how defendants were deliberately indifferent to his medical needs. However, dismissal is vacated in part where, as long as the court-appointed agent could locate the prison-guard defendant with reasonable effort, prisoner?litigants who provide enough information to identify the prison-guard defendant had established good cause for Fed. R. Civ. P. 4(m) purposes.

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Consumer Products

[03/03] Byers v. Intuit, Inc.
In plaintiff's putative class action on behalf of U.S. taxpayers against the IRS and a consortium of companies in the electronic tax preparation and filing industry (FFA) claiming violations of the Independent Offices Appropriations Act (IOAA) in the charging of fees in exchange for providing e-filing services, as well as a violation of section 1 of the Sherman Antitrust Act, dismissal of both claims is affirmed where: 1) the district court was correct in holding that the IOAA does not apply to the FFA members, as it only applies to a government agency and none of the exceptions in Thomas v. Network Solutions, Inc., 176 F.3d 500 (D.C. Cir. 1999) apply; and 2) the district court did not err in dismissing the Sherman Act claim as the FFA members are entitled to conduct-based implied antitrust immunity with respect to the anti-competitive action taken pursuant to the Ceiling Provisions of the 2005 Agreement with the IRS.

[03/02] Pfizer v. Sup. Ct.
In plaintiffs' action against Pfizer, the manufacturer of Listerine mouthwash, pursuant to the Unfair Competition Law (UCL) and False Advertising Law claiming that Pfizer marketed the mouthwash in a misleading manner by representing that the use of it can replace the use of dental floss in reducing plaque and gingivitis, defendant's petition for writ of mandate seeking to overturn an order certifying the class action is granted as the ruling certifying a class consisting of all persons who purchased Listerine in California during a six-month period is overbroad, and In re Tobacco II Cases, 46 Cal.4th 298 (2009), does not require a different disposition in this case.

[03/02] Ad Hoc Shrimp Trade Action Comm. v. US
In plaintiff's action with the Court of International Trade challenging a determination that the multinational corporation provision, 19 U.S.C. section 1677b(d) (MNC Provision) did not apply to a company with affiliates in China and Vietnam, the court's decision is affirmed as the Department of Commerce acted in accordance with law in concluding that the MNC provision is not applicable when the non-exporting country is a nonmarket economy and normal value is based on a factors-of-production methodology.

[02/25] Trading Techs. Int'l, Inc. v. eSpeed, Inc.
In plaintiff's action for patent infringement for patents relating to software for displaying the market for a commodity traded in an electronic exchange, judgment of district court is affirmed where: 1) defendant's infringed the asserted claims of one patent with one accused service product, but not willfully; 2) the two other accused products did not literally infringe, and as such, plaintiff is precluded from asserting infringement under the doctrine of equivalents; 3) the on-sale bar of 35 U.S.C. section 102(b) does not apply; 4) there are no indefiniteness problems in the asserted claims; and 5) there is no finding of inequitable conduct during the prosecution of the patents-in-suit.

[02/24] McAdams v. Monier, Inc.
In plaintiffs' action under the Consumer Legal Remedies Act and the Unfair Competition Law, claiming that defendant failed to disclose that the color composition of its roof tiles would erode away well before the end of the tiles' represented 50-year lifetime, trial court's order denying certification of the proposed CLRA and UCL classes are reversed where: 1) as to the elements of liability and reliance, plaintiffs' CLR cause of action, based on the alleged failure to disclose is suitable for class treatment; and 2) trial court used improper criteria and made erroneous legal assumptions in denying certification of the proposed UCL class, and on remand, court is instructed to determine if the representative plaintiff meets the UCL standing requirements set forth in Tobacco II.

[02/24] Drum v. San Fernando Valley Bar Ass'n
In plaintiff's action against a bar association, trial court's grant of defendant's dismissal is affirmed as a voluntary bar association did not engage in an unfair business practice when, allegedly, it unilaterally refused to sell its membership mailing list to a person who intended to offer low-priced mediation services in competition with higher-priced mediation offered by some of the association's members.

[02/24] Crocs, Inc. v. Int'l Trade Comm'n
In plaintiff's action for unfair competition under 19 U.S.C. section 337 and patent infringement relating to their patented footwear, the United States International Trade Commission's judgment is reversed and remanded where: 1) the Commission erred in finding that the prior art taught all of the claimed elements of the '858 patent and incorrectly weighed the secondary considerations; 2) thus, the Commission erred in finding that the '858 patent would have been obvious; and 3) Commission erred in claim construction for the '789 patent in applying the ordinary observer industry requirement and in applying the technical prong of the 19 U.S.C. section 337 domestic industry requirement.

[02/22] Pleasures of San Patricio, Inc. v. Mendez-Torres
In plaintiff's challenge to a Puerto Rico cigarette excise tax recently imposed on "little cigars" imported from North Carolina, district court's dismissal of the suit for lack of jurisdiction is affirmed where: 1) plaintiff's suit falls within the ambit of suits barred by the Butler Act; and 2) Puerto Rico local courts provide a plain, speedy, and efficient remedy.

[02/09] Helcher v. Dearborn County
In a suit against a county by a wireless communications services provider for violation of various provisions of the Telecommunications Act of 1996 when the local Board of Zoning Appeals denied plaintiff's application for a conditional use permit to construct a wireless communication facility on property owned by co-plaintiffs, summary judgment in favor of defendants is affirmed where: 1) the Minutes met the "in writing" requirement under the Act; 2) the Board's decision rejecting the permit for noncompliance with section 1514 is supported by substantial evidence; and 3) plaintiffs' claim of unreasonable discrimination fails.

[02/05] Omstead v. Dell, Inc.
In a proposed class action alleging that Dell designed, manufactured, and sold defective notebook computers, dismissal of the action for failure to prosecute is reversed where: 1) plaintiffs did not cause any unreasonable delay in the progression of their case; and 2) a choice-of-law provision is unenforceable, and a class action waiver pursuant to which Dell obtained an order compelling arbitration was unconscionable under California law because it satisfied the Discover Bank test, and California had a materially greater interest than Texas in applying its own law.

[02/05] Totes-Isotoner Corp. v. US
In plaintiff's claim that the Harmonized Tariff Schedule of the United States unconstitutionally denies equal protection of the laws by imposing different rates of duty on seamed leather gloves "for men" and seamed leather gloves "for other persons", judgment of the United States Court of International Trade dismissing the claim is affirmed where: 1) the CIT's judgment concluding that it had jurisdiction under section 1581(i), that plaintiff has standing to bring its claims, and that plaintiff's equal protection claims are justiciable is affirmed; but 2) plaintiff has failed to state an equal protection claim due to its failure to plead facts sufficient to allege a claim of unconstitutional discrimination.

[02/05] SEB S.A. v. Montgomery Ward & Co., Inc.
In a patent infringement action by a French company that specializes in home-cooking appliances against a Hong Kong corporation, involving a patent which claims a deep fryer with an inexpensive plastic outer shell or skirt, judgment of the district court is affirmed where: 1) there is no manifest of injustice in honoring a jury's finding of infringement under the doctrine of equivalents; 2) there is no prejudice to defendant in the district court's conclusion at the preliminary injunction stage that prosecution history estoppel did not apply; 3) the district court did not err in admitting plaintiff's expert testimony; 4) the jury's finding of inducement is justified, and the damage award, even if it was based on inducement alone, stands; 5) district court did not abuse its discretion in denying defendant's motion for JMOL on discovery misconduct grounds; 6) district court did not abuse its discretion in declining to grant a new trial to defendant based on the summation of plaintiff's counsel; and 7) there is no detectable error in district court's decision to set aside its original awards of enhanced damages and attorney's fees.

[02/04] Lukather v. Gen Motors, LLC
In plaintiff's suit against General Motors pursuant to the Song-Beverly Consumer Warranty Act, judgment of the trial court in favor of plaintiff is affirmed where: 1) there was sufficient evidence to support the trial court's willfulness finding; 2) defendant provided neither legal authority nor any equitable ground to support its mitigation of damages defense; and 3) defendant failed to show that the trial court abused its discretion in awarding prejudgment interest, attorney's fees and costs.

[02/04] Cincinnati Ins. Co. v. Beazer Homes Inv., LLC
In plaintiff-insurance company's declaratory-judgment action to establish that it was not obligated to cover the costs that defendant incurred in repairing water damage to several houses that defendant had built as a general contractor, grant of 's judgment on the pleadings is affirmed where: 1) collateral estoppel is not applicable to the case and plaintiff is free to contest whether the policies cover the costs that defendant incurred; 2) a general contractor cannot claim CGL insurance coverage for the costs it incurs in repairing houses that are subsequently damaged due to the faulty workmanship of its own subcontractors; and 3) the district court's consideration of an alleged fungus exclusion was harmless.

[12/11] Whirlpool Corp. v. Camacho
In a products liability action against Whirlpool Corporation, judgment of the court of appeals' that a design defect in an electric Whirlpool clothes dryer caused a fatal fire is reversed as the expert testimony of design defect is legally insufficient to support the verdict.

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Evidence

[03/09] US v. Cha
In a prosecution for conspiracy, sex trafficking and coercion, and enticement to travel for the purpose of prostitution, a grant of defendants' motion to suppress evidence is affirmed where the warrantless seizure of defendants' residence, which lasted a minimum of 26.5 hours, was constitutionally unreasonable.

[03/09] Thu v. Holder
In a petition for review of the BIA's order dismissing his appeal from a denial of petitioner's asylum application and related relief, the petition is denied where: 1) the Immigration Judge's credibility finding was supported by specific, cogent reasons for disbelief; and 2) the evidence in the record was not so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.

[03/09] US v. Stearn
Following a grand jury indictment of defendants for federal narcotics and weapons offenses, district court's order granting in part motions to suppress evidence in favor of defendants is, with one irrelevant exception, reversed in its entirety where: 1) the magistrate judge had a substantial basis for determining that probable cause existed to search the apparent residence of a confirmed drug dealer; 2) although closer probable cause questions are presented by the searches of other residences, each search is upheld under the Leon good faith exception as each warrant was sufficiently colored in probable cause to justify the executing officers' good faith reliance; and 3) the suppression of a defendant's saliva sample as "fruit of poisonous tree" is reversed as the defendant failed to prove a primary invasion of his own Fourth Amendment rights.

[03/09] US v. Salem
In a prosecution of defendants for wire fraud and receiving stolen funds, district court's sentences based on relevant conduct findings are remanded as the district court made findings as to the reasonableness of the co-schemers' acts only, but it made no finding as to the scope of the jointly undertaken criminal activity under U.S.S.G. section 1B1.3(a)(1)(B).

[03/09] In re: Omnicom Group, Inc. Secs. Litig.
In a securities class action alleging that defendants fraudulently accounted for a transaction, summary judgment for defendants is affirmed where: 1) plaintiffs failed to prove loss causation because their expert's testimony did not suffice to draw the requisite causal connection between the information in the article at issue and the fraud alleged in the complaint; and 2) the generalized investor reaction of concern causing a temporary share price decline was far too tenuously connected -- indeed, by a metaphoric thread -- to the transaction to support liability.

[03/05] Smith v. Mahoney
In a capital habeas matter, the denial of the petition is affirmed where: 1) although defense counsel inadequately investigated the facts of the case before allowing petitioner to plead guilty, petitioner did not establish that he was prejudiced by his lawyer's representation; 2) non-character, non-circumstance evidence need not factor into the constitutionality of a death sentence; and 3) petitioner failed to develop his claim of judicial bias sufficiently to warrant an evidentiary hearing.

[03/05] Quasius v. Schwan Food Co.
In an employment discrimination action, summary judgment for defendant is affirmed where defendant failed to file a motion to withdraw his dispositive admissions after the district court provided ample notice and opportunity to do so.

[03/05] US v. Washington
Defendant's conviction for distribution of a controlled substance is affirmed where: 1) the record did not suggest that defendant's counsel was unprepared or inadequate as counsel, and thus defendant was not effectively compelled to represent himself; 2) despite defendant's admission that his self-representation request was both untimely and for an improper purpose, neither concession served as a basis for reversing the district court's decision to grant his request; 3) there was no abuse of discretion in the district court not ordering a competency evaluation or holding a competency hearing; and 4) there was sufficient evidence to sustain defendant's convictions.

[03/05] People v. Memory
Conviction of defendants for murder arising from a fight in a parking lot outside a bar between two groups of men, the trial court erred in admitting evidence of the Jus Brothers Motorcycle Club as a gang, as there was no foundation that the Jus Brothers were a gang or a criminal enterprise, the evidence was not probative but was used as inadmissible character evidence.

[03/05] US v. Brown
Defendant's bank fraud conviction is affirmed where: 1) the extrinsic evidence of defendant's other uses of fictitious financial documents was substantively and temporally tied to the charged offenses, and those other uses were distinct enough not to be the "needless presentation of cumulative evidence" under Fed. R. Evid. 403; and 2) the extrinsic evidence that defendant had failed to pay for a house inspection was not probative of his intent to defraud the victim and therefore inadmissible under Rule 404(b), but this evidence was quite limited in length, not inflammatory, and was not mentioned during the government's closing arguments.

[03/05] Urbina-Mejia v. Holder
Petition for review of a decision of the BIA denying petitioner's applications for withholding of removal is denied where: 1) the BIA erred in finding that petitioner was not a member of a particular social group for which he would likely be subject to persecution should he be returned to Honduras; 2) petitioner was a member of the particular group of former gang members, which is impossible to leave save by rejoining the organization; but 3) petitioner failed to show that evidence compelled a finding that he had sufficiently corroborated his testimony with evidence or that he had not committed serious nonpolitical crimes while a member of the gang before coming to the United States.

[03/04] US v. Scroggins
Defendant's firearm possession conviction is affirmed where: 1) the district court did not clearly in err in finding that defendant's fiancee consented, at least implicitly, to the officers entering defendant's home; 2) the officers were justified in conducting a protective sweep upon entry due to potential danger; and 3) if a protective sweep for potentially dangerous individuals located such an individual, police could detain and frisk the subject, and, if necessary, temporarily handcuff or otherwise reasonably immobilize him.

[03/04] Coito v. Sup. Ct.
In plaintiff's wrongful death suit against the State of California and various other defendants for the drowning death of her 13-year old son, superior court's denial of plaintiff's motion to compel production of certain recorded witness statements is reversed and plaintiff's petition for a writ of mandamus granted where: 1) written and recorded witness statements, including not only those produced by the witness and turned over to counsel but also those taken by counsel, are not attorney work-product, and thus neither is a list of witnesses from whom statements have been obtained; and 2) the state failed to show that the recorded statements of the four juvenile witnesses were protected work product.

[03/04] Williams v. Allen
In a capital habeas matter, a denial of petitioner's habeas petition is affirmed where: 1) defense counsel was not ineffective because the record illustrated several reasons why a reasonable defense counsel would pursue an insanity defense based on a mental disease, exclusive of voluntary intoxication; 2) given the contradictory accounts regarding the degree of petitioner's intoxication, it was unlikely that inconsistencies in testimony on that issue would have changed the outcome of the proceedings; 3) counsel adequately emphasized that petitioner engaged in excessive alcohol and drug consumption prior to the crimes, and petitioner did not demonstrate that counsel needed to argue further; and 4) the jury instructions did not relieve the prosecution's burden of proving intent to commit capital murder.

[03/04] US v. Bacon
Defendants' drug conspiracy convictions and sentences are affirmed where: 1) the jury was entitled to find the government's case convincing and the government witnesses credible even though the evidence was circumstantial; 2) the jurors could reasonably infer that one defendant was a drug distributor; and 3) the jury could consider presence as a probative factor in determining whether one defendant knowingly and intentionally participated in a criminal scheme. However, one defendant's sentence is vacated where, when a defendant is convicted of participating in a drug trafficking conspiracy under 21 U.S.C. section 846, the court must sentence the defendant based on an individualized finding, supportable by a preponderance of the evidence, as to the drug quantity foreseeable by that defendant.

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Injury & Tort Law

[03/09] Zia Trust Co. v. Montoya
In an action for excessive force brought by family members of a man defendant-officer shot and killed while responding to a domestic disturbance, denial of summary judgment based on qualified immunity is affirmed where the court could not say that a van fifteen feet away, which according to the plaintiffs was clearly stuck on a pile of rocks, gave defendant probable cause to believe that there was a threat of serious physical harm to himself or others that would justify his use of force.

[03/09] Espinosa v. City & County of San Francisco
In a 42 U.S.C. section 1983 action claiming excessive force by defendants-officers, denial of summary judgment based on qualified immunity is affirmed where: 1) defendants failed to show as a matter of law that plaintiff's decedent did not have a reasonable expectation of privacy; 2) the district court properly found that defendants failed to show as a matter of law that the emergency and exigency exceptions to the Fourth Amendment warrant requirement applied; 3) defendants failed to show that there were no questions of fact regarding whether a security guard had apparent authority to consent and implied consent; and 4) the district court did not err in finding that there were genuine issues of fact regarding whether the officers intentionally or recklessly provoked a confrontation.

[03/05] Bustos v. Martini Club Inc.
In a 42 U.S.C. section 1983 action based on a late-night confrontation with several off-duty police officers, dismissal of the action is affirmed where: 1) the election of remedies provisions in Tex. Civ. Prac. & Rem. Code 101.106 applied to state law intentional tort claims against a governmental unit and its employees; 2) plaintiff did not allege facts to suggest that the officers who assaulted him misused or abused their official power; and 3) bystander officers had no constitutional duty to prevent the alleged assault.

[03/05] Howard v. St. Germain
In an appeal from the district court's order assessing attorney's fees against defendants based on their improper removal of the case, the order is affirmed where the district court did not abuse its considerable discretion in taxing costs and attorney's fees to defendants because an objectively reasonable basis for removal did not exist.

[03/05] Doe v. S. Carolina Dep't of Soc. Servs.
In a 42 U.S.C. section 1983 action brought by a minor child and her adoptive parents against defendant, an Adoption Specialist with the South Carolina Department of Social Services (SCDSS), alleging violations of their substantive due process rights under the Fourteenth Amendment and state law claims against SCDSS under the South Carolina Tort Claims Act (SCTCA), judgment is affirmed in part, vacated in part, and remanded where: 1) when a state involuntarily removes a child from her home, thereby taking the child into its custody and care, the state has taken an affirmative act to restrain the child's liberty, triggering the protections of the Due Process Clause and imposing "some responsibility for the child's safety and general well being"; 2) because it would not have been apparent to a reasonable social worker in defendant's position that her actions violated the Fourteenth Amendment, she is entitled to qualified immunity; 3) prospective adoptive parents have no substantive due process right to the disclosure of a child's history of sexual abuse; and 4) district court's grant of defendants' motion for summary judgment on the state law claims for gross negligence against SCDSS is vacated and remanded for consideration of the applicability of section 15-78-60(25).

[03/04] Aills v. Boemi
In plaintiff's medical malpractice suit against defendant plastic surgeon arising out of negligence in connection with an elective surgical procedure for breast reconstruction, the judgment of the Second District Court of Appeal is quashed and remanded as the district court erred in reversing for a new trial on the basis of an improper argument by plaintiff's counsel during closing argument.

[03/04] Coito v. Sup. Ct.
In plaintiff's wrongful death suit against the State of California and various other defendants for the drowning death of her 13-year old son, superior court's denial of plaintiff's motion to compel production of certain recorded witness statements is reversed and plaintiff's petition for a writ of mandamus granted where: 1) written and recorded witness statements, including not only those produced by the witness and turned over to counsel but also those taken by counsel, are not attorney work-product, and thus neither is a list of witnesses from whom statements have been obtained; and 2) the state failed to show that the recorded statements of the four juvenile witnesses were protected work product.

[03/04] Schreiber v. Moe
In plaintiff's 42 U.S.C. section 1983 against a police officer, district court's judgment is affirmed in part, reversed in part and remanded where: 1) no reasonable jury could find that defendant violated the Fourth Amendment either by entering plaintiff's home or by remaining inside as long as he did; 2) defendant violated plaintiff's right to be free from excessive force, as striking a neutralized suspect who is secured by handcuffs is objectively unreasonable; and 3) because plaintiff's right to be free from excessive force was clearly established, defendant is not entitled to qualified immunity on the excessive force claim.

[03/03] Willis v. Bender
In an action for lack of informed consent and medical malpractice, judgment for defendant is affirmed in part where there was no evidence, specifically expert testimony, that another physician was negligent and therefore no basis to hold defendant liable for his negligence. However, the judgment is reversed in part where defendant's alleged misrepresentations to plaintiff in response to her direct questions allegedly induced her to consent to the surgery and its risks, and under those circumstances, if proved, her consent could hardly be considered "informed".

[03/03] In re: Baycol Prods. Litig.
In a failure-to-warn case involving the prescription drug Baycol, a cholesterol-reducing medication, summary judgment for defendant is affirmed where: 1) an expert relied upon by plaintiff to prove causation had inadequate factual evidence on which to base his opinion; and 2) plaintiff received what he bargained for and therefore could not demonstrate that defendant was unjustly enriched as a result of plaintiff purchasing Baycol.

[03/03] Teachers' Ret. Sys. of La. v. PriceWaterhouseCoopers LLP
In a shareholder derivative action brought on behalf of AIG for breach of fiduciary duty against PricewaterhouseCoopers under New York law, the Delaware Supreme Court certifies the following question to the New York Court of Appeals: Would the doctrine of in pari delicto bar a derivative claim under New York law where a corporation sues its outside auditor for professional malpractice or negligence based on the auditor's failure to detect fraud committed by the corporation; and, the outside auditor did not knowingly participate in the corporation's fraud, but instead, failed to satisfy professional standards in its audits of the corporation's financial statements?

[03/03] Asher v. Unarco Material Handling, Inc.
In a suit brought by past and present Wal-Mart employees and their spouses, claiming injuries caused by exposure to carbon monoxide gas in the enclosed freezer section of a Wal-Mart Distribution Center during a two-week period in late 2005, dismissal of a second group of plaintiffs' claims as time-barred is affirmed where: 1) new plaintiffs cite no authority permitting relation back to the filing date of the original plaintiffs' claims under these circumstances; and 2) the district court did not err in holding that Kentucky's "discovery rule" did not apply to toll the statute of limitations.

[03/02] Davis v. Brouse McDowell, LPA
In plaintiff's legal malpractice suit claiming that defendants failed to timely file three patent applications related to a website-search engine, summary judgment in favor of the defendants is affirmed where: 1) the district court exercised proper jurisdiction over plaintiff's malpractice cause of action; 2) the court did not abuse its discretion in striking portions of the supplemental affidavit of plaintiff's patent law expert; and 3) plaintiff failed to introduce evidence sufficient to establish a genuine issue of material fact as to the patentability of her inventions.

[02/26] Phan v. Pham
In plaintiff's suit for defamation, trial court's dismissal of the action is affirmed as, using the material contribution test from Fair Housing Council of San Fernando Valley v. Roommates, it is evident that defendant made no material contribution to the alleged defamation in the e-mail he received from the originator and the only possible defamatory content is to be found in the e-mail was the original content received by defendant.

[02/26] Lara v. Workers' Comp. Appeals Bd.
Workers' Compensation Appeals Board's decision against the petitioner and in favor of the defendant is affirmed as, the petitioner, hired twice in the space of 12 months to prune bushes for a diner, was not an employee of the diner at the time he sustained injury, but rather, he was an independent contractor exempt from workers' compensation coverage.

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Insurance Law

[03/09] George's Inc. v. Allianz Global Risks US Ins. Co.
In an action against an insurer claiming that defendant failed to indemnify plaintiff for business expenses and personal property losses as required under the terms of its insurance policy, partial summary judgment for defendant on the personal property claim is affirmed, but a partial denial of summary judgment on the business expenses claim is reversed where the policy unambiguously excludes coverage for plaintiff's claimed losses.

[03/09] HealthEast Bethesda Hosp. v. United Commercial Travelers of Am.
In an action for breach of an insurance settlement contract, summary judgment for plaintiff is affirmed where: 1) defendant was not an unsophisticated party because it had significant experience in handling and negotiating claims with healthcare providers; 2) because defendant bore the risk of mistake, the district court properly denied rescission based on unilateral mistake; and 3) the record of inaction by defendant strongly supported the denial of relief under both unilateral and mutual mistake.

[03/03] City of Laguna Beach v. California Ins. Guarantee Ass'n
In a city's action against an insurance company seeking reimbursement for incurring workers' compensation liability that exceeded its self-insured retention, grant of insurance company's motion for summary judgment is affirmed where: 1) the addition of subdivision (c)(13) to Ins. Code section 1063.1 did not abrogate Denny's Inc. v. Workers' Comp. Appeals Bd., 104 Cal.App.4th 1433 (2003); 2) the trial court properly invoked the Denny's rule when it granted summary judgment and concluded that the city cannot obtain reimbursement from defendant under section 1063.1(c)(13) as, although this provision renders the obligation of an insolvent excess workers' compensation insurer a "covered claim" that defendant must ordinarily reimburse, defendant need not reimburse a permissibly self-insured employer for benefits paid to an employee for cumulative injury if the employer's liability is based in part on a period of time when the employer was self-insured and chose not to buy excess insurance for the particular risk.

[03/03] Fed. Ins. Co. v. Commerce Ins. Co.
In plaintiff-insurance company's subrogation claim, district court's grant of summary judgment in favor of defendants in concluding that the implied coinsured doctrine controlled the outcome in this case and precluded the plaintiff from pursuing a subrogation claim is affirmed as plaintiff has not met its burden of proving that the "Responsibility for Damages" provision of a Residence and Care Agreement (RCA) overcomes the presumption that the landlord's insurance is held for the mutual benefit of both parties.

[02/22] Interstate Fire & Cas. Ins. Co. v. Cleveland Wrecking Co.
In plaintiff's claim for subrogation against defendant, alleging that defendant had breached its contract with a general contractor by failing to defend and indemnify the general contractor in an underlying suit, trial court's judgment in favor of the defendant pursuant to a demurrer is reversed as the allegations of plaintiff's amended complaint establish each of the elements for subrogation.

[02/19] Versai Mgmt. Corp. v. Clarendon Am. Ins. Co.
In an action against an insurer brought after a number of apartment buildings managed by plaintiff sustained damage during Hurricane Katrina, raising contract claims for unpaid insurance proceeds and claims that defendants violated Louisiana law by failing to promptly settle claims and by misrepresenting the terms of their policies, summary judgment for defendants is affirmed in part where, under the policy, plaintiff was not entitled to costs of compliance until after it had incurred the expenses of code compliance. However, the judgment is reversed in part where: 1) the district court was not at liberty to grant summary judgment based on plaintiff's "failure" to support its proofs of loss with additional documentation where the insurance policy created no such obligation; and 2) there was an issue of material fact suggesting that plaintiff was entitled to compensation for business-interruption losses.

[02/18] Bluehaven Funding, LLC v. First Am. Title Ins. Co.
In an action by real estate investors against a title insurance company claiming it was vicariously liable for fraud by another insurer with which defendant had an agency relationship, summary judgment for defendant is affirmed where: 1) the insurer responsible for the fraud lacked the authority to provide escrow and closing services as defendant's agent; and 2) defendant had no duty under the agency agreement to monitor the insurer's conduct.

[02/18] Medical Protective Co. v. Bubenik
In an action by an insurer seeking a declaration that it had no duty to pay a malpractice judgment, summary judgment for plaintiff is affirmed where the district court did not err in concluding that the malpractice defendant materially breached the cooperation clause in his insurance policy.

[02/18] Fincher v. St. Paul Fire & Marine Ins. Co.
In an action claiming that defendant-insurer vexatiously refused to pay plaintiff's underinsured motorist (UIM) claim relating to injuries he sustained while driving a motorcycle as a police officer, summary judgment for defendant is affirmed where an agent of the local government responsible for its insurance matters possessed the actual, implied authority to sign a form rejecting UIM coverage in excess of the statutory minimum.

[02/18] People v. Kisina
Defendant's conviction for falsifying business records is affirmed where a physician could be found guilty of falsifying business records in the first degree for submitting fraudulent medical documentation to a no-fault insurance carrier for the purpose of receiving payments for treatments that were unnecessary or unperformed.

[02/17] Roberts v. Printup
In a garnishment action against an insurer to collect a judgment that was in excess of the policy limits, claiming that defendant negligently or in bad faith delayed in accepting an offer to settle within the policy's limits, judgment for defendant is reversed where it was foreseeable to defendant that its negligence in failing to implement a system to handle reasonable time-sensitive settlement offers from an injured party could result in a lawsuit being filed against its insured.

[02/17] Baker v. St. Paul Travelers Ins. Co.
In plaintiff's action seeking to recover under the Underinsured Motorist (UIM) provision of her employer's automobile insurance policy, arising from an automobile accident where she was severely injured during the course of her employment, judgment of the district court affirming the grant of summary judgment in favor of the defendant is vacated and remanded as the district court must determine whether the National Union carve-out applies, namely, whether the employer "explicitly purchased" its underinsured motorist coverage for the purpose of providing UIM coverage to employees injured in the course of their employment.

[02/12] Forecast Homes, Inc. v. Steadfast Ins. Co.
In plaintiff's declaratory relief action arising from insurer's refusal to tender defense in underlying lawsuits against plaintiff for home construction defects allegedly caused by subcontractors who were required to add plaintiff to their general liability insurance polices as an additional insured, judgment in favor of the defendant is affirmed where: 1) defendant's policy plainly provides only a named insured may satisfy the self-insured retention; and 2) the policy is not illusory.

[02/12] Havensure, LLC v. Prudential Ins. Co. of Am.
In an action for tortious interference by an insurance broker against an insurer (Prudential), district court's grant of summary judgment in favor of Prudential is affirmed as Prudential's interference was privileged as a matter of Ohio law.

[02/12] Fortney & Weygandt, Inc. v. Am. Mfrs. Mut. Ins. Co.
In a general contractor's suit against its insurers claiming that they had a duty to defend it in third-party litigation arising out of a construction dispute, judgment in favor of defendants is reversed as the exclusion provision at issue applies only to the cost of repairing or replacing distinct component parts on which the insured performed defective work.

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Professional Malpractice

[03/04] Aills v. Boemi
In plaintiff's medical malpractice suit against defendant plastic surgeon arising out of negligence in connection with an elective surgical procedure for breast reconstruction, the judgment of the Second District Court of Appeal is quashed and remanded as the district court erred in reversing for a new trial on the basis of an improper argument by plaintiff's counsel during closing argument.

[03/03] Willis v. Bender
In an action for lack of informed consent and medical malpractice, judgment for defendant is affirmed in part where there was no evidence, specifically expert testimony, that another physician was negligent and therefore no basis to hold defendant liable for his negligence. However, the judgment is reversed in part where defendant's alleged misrepresentations to plaintiff in response to her direct questions allegedly induced her to consent to the surgery and its risks, and under those circumstances, if proved, her consent could hardly be considered "informed".

[03/03] Oasis W. Realty, LLC v. Goldman
In an appeal involving defendants' anti-SLAPP special motion to strike (Code of Civil Procedure section 425.16) plaintiff-former client's suit for various causes of action including breach of fiduciary duty, arising from defendants' prior representation in connection with plaintiff's efforts to redevelop real estate it owned in Beverly Hills, trial court's conclusion that section 425.16 did not apply because the gravamen of the action was breach of an attorney's duties of loyalty and confidentiality is reversed as all causes of action in the complaint arose from acts in furtherance of protected activity, and plaintiff could not show a probability of prevailing at trial.

[03/02] Davis v. Brouse McDowell, LPA
In plaintiff's legal malpractice suit claiming that defendants failed to timely file three patent applications related to a website-search engine, summary judgment in favor of the defendants is affirmed where: 1) the district court exercised proper jurisdiction over plaintiff's malpractice cause of action; 2) the court did not abuse its discretion in striking portions of the supplemental affidavit of plaintiff's patent law expert; and 3) plaintiff failed to introduce evidence sufficient to establish a genuine issue of material fact as to the patentability of her inventions.

[02/26] Aills v. Boemi
In plaintiff's medical malpractice suit against a plastic surgeon for negligence in connection with a procedure of breast reconstruction, the decision of the second district court of appeal reversing a judgment in favor of plaintiff is quashed and remanded as the court erred in reversing for a new trial on the basis of an improper argument by plaintiff's counsel during closing argument.

[02/26] Deen v. Egleston
In a medical malpractice action, the denial of partial summary judgment for defendant is reversed where the district court, in striking down, under the Equal Protection Clause, a state statute that did not exempt the "legally incompetent" from the general two-year statute of limitations, overlooked the essential principle that matters of social and economic policy, particularly when they came to bear on the health and welfare of a state's citizens, were quintessentially legislative in nature.

[02/18] Medical Protective Co. v. Bubenik
In an action by an insurer seeking a declaration that it had no duty to pay a malpractice judgment, summary judgment for plaintiff is affirmed where the district court did not err in concluding that the malpractice defendant materially breached the cooperation clause in his insurance policy.

[02/11] Anderson v. Chikovani
In a medial malpractice action, defendant's motion to dismiss the appeal is denied as, where a party files a valid motion for new trial, and the trial court issues a timely order denying that motion but no one serves the order or notice of entry of that order, then the applicable deadline for filing the notice of appeal from the judgment is 180 days after entry of judgment.

[02/04] Elam v. Menzies
In plaintiff's suit claiming negligence in a heart operation that defendant-doctor performed, summary judgment for doctor on the ground that Kentucky's one year statute of limitations for medical malpractice suits had run is reversed and remanded as there is a factual dispute as to whether plaintiff knew or should have known he had a claim after the conversation with a second doctor, and thus, this issue should be referred to the jury.

[02/02] Clark v. Baka
In an action for damages for physical and neurological injuries plaintiffs' grandchild allegedly sustained during his birth, plaintiffs' appeal from summary judgment for defendant-hospital management company is dismissed where the district court abused its discretion in certifying the action for appeal because the court of appeals was unable to discern how or why plaintiffs would face hardship or injustice by waiting to appeal until their claims against all defendants were fully resolved by the district court.

[01/25] Stein v. York
In plaintiff's legal malpractice action against her attorney, trial court's entry judgment of $2.65 million in favor of the plaintiff is reversed where: 1) a default judgment for an amount greater than that stated in the complaint is void; 2) constructive notice of potential liability does not satisfy Code of Civil Procedure section 580; 3) the judgment is void and vacated as plaintiff did not comply with the notice requirement; and 4) plaintiff's motion to dismiss the appeal is denied.

[01/21] Truong v. Glasser
In plaintiffs' legal malpractice action against his former attorney arising out of his purported negligent advice in a real estate transaction, grant of attorney's motion for summary judgment is affirmed where: 1) under prior case law, the trial court correctly found plaintiffs first sustained actual injury when they obtained and obligated to pay new counsel to file a lawsuit seeking to escape the consequences of their signing the lease, and therefore sustained actual injury more than one year before the malpractice action was filed; 2) trial court did not abuse its discretion by declining to reject the summary judgment motion based on the absence of headings within the Separate Statement of Material Facts; and 3) under the circumstances, plaintiffs have demonstrated neither that the trial court abused its discretion in considering the evidence submitted by defendant nor that any alleged error was prejudicial.

[01/14] Florida Birth-Related Neurological Injury Comp. Ass'n v. Dep't of Admin. Hearings
In a consolidated medical malpractice action, involving the Florida Birth-Related Neurological Injury Compensation Plan established by the legislature, the decision by the Second District is quashed and remanded where, in order to satisfy the notice requirement of section 766.316, Florida Statutes, both participating physicians and hospitals with participating physicians on staff must provide obstetrical patients with notice of their participating in the plan.

[10/30] Akin, Gump, Strauss, Hauer & Feld, LLP v. Nat'l Dev. & Research Corp.
In plaintiff's legal malpractice case, court of appeals' judgment in favor of plaintiff is reversed where: 1) there is legally insufficient evidence to support a finding that damages in the underlying suit would have been collectible; and 2) the defendant attorneys' negligence did not proximately cause the entire amount the jury awarded as damages for attorney's fees and expenses. Because there is some evidence that the attorneys' negligence caused some amount of attorney's fees and expenses in the underlying suit, the case is remanded.

[09/04] Kardos v. Harrison
In wrongful death/survival action claiming defendant-doctor violated the standard of care by failing to refer decedent (cancer victim) for a biopsy or follow-up after malignant lesions were first revealed in a CT scan, and also claiming that decedent suffered a lost chance of survival as a result, judgment as a matter of law for defendant is affirmed where the superior court properly held that plaintiff failed to prove, through expert testimony with reasonable medical probability, that doctor's alleged negligence caused any lost chance of survival.

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Transportation

[03/02] Bhd. of Maint. of Way Employees' Div. v. Burlington Northern Santa Fe Railway Co.
In an action by a union claiming that a railroad's proposed sale of a portion of its rail line to the state violated the Railway Labor Act (RLA), dismissal of the action is affirmed where the RLA reserved the dispute in this case to the Adjustment Board in the first instance, thus depriving the district court of jurisdiction, and the workers' remedy thus lay in the administrative process before the Adjustment Board.

[02/26] Pasternack v. NTSB
In a petition for review of the FAA's revocation of petitioner's airman certificates on the ground that petitioner refused to take a mandatory drug test, the petition is granted where the FAA erred by relying on an "implicit credibility determination" by the Administrative Law Judge (ALJ), when in fact the ALJ made no such credibility determination.

[02/24] American Trucking Assns., Inc. v. Los Angeles
In an action seeking preliminary injunctive relief against certain regulations imposed by the Port of Los Angeles, a local governing body, upon motor carriers entering the Port premises, a denial of injunctive relief is affirmed in part where: 1) the Port was acting out of safety concerns when it enacted each challenged requirement; and 2) the Federal Motor Carrier Act granted only the Interstate Commerce Commission, the agency charged with issuing certificates of convenience, the power to revoke motor carriers' certificates of convenience. However, the order is vacated in part where 49 U.S.C. section 14506(a) did not contain a safety exception.

[02/23] Brown v. Ala. Dep't of Trans.
In a Title VII action alleging a racially discriminatory failure to promote plaintiff, judgment for plaintiff is affirmed in part where there was ample evidence of racial discrimination specific to three of the promotions at issue, suggesting that defendant's proffered reasons were pretextual. However, the judgment is reversed in part where: 1) the evidence was insufficient to support a finding of discrimination or retaliation as to the remaining six promotions; 2) the jury's backpay award was plainly a cumulative figure reflecting each of the promotions, and thus a remand for recalculation was required; and 3) clarification was also required as to a portion of a permanent injunction requiring that plaintiff be instated to a "comparable position" pending her promotion.

[02/22] Cooper v. FAA
In a Privacy Act action based on an exchange of information about plaintiff performed as part of a joint criminal investigation by multiple federal agencies, summary judgment for defendant is reversed where actual damages under the Privacy Act encompasses both pecuniary and nonpecuniary damages.

[02/18] In the Matter of N.Y. City Transit Auth.
In a CPLR article 75 proceeding to vacate a labor arbitration award which modified a New York Transit Authority employee's penalty (for allegedly assaulting a member of the public) from termination to reinstatement without back pay, confirmation of the award is affirmed where the arbitrator did not exceed his power under the collective bargaining agreement by modifying the disciplinary sanction imposed on an employee by a transit authority.

[02/08] Crandall v. Denver
In an action under the Resource Conservation and Recovery Act to prohibit full-plane deicing at an airport concourse and also require other precautionary steps relating to airplane deicing fluid (ADF), judgment for defendants is affirmed where plaintiffs failed to demonstrate that ADF at the airport (whether it degraded inside or outside the concourse) may present an imminent and substantial endangerment to health.

[02/04] Menendez v. Progressive Express Ins. Co., Inc.
In plaintiff's action against her insurance company for its failure to pay personal injury protection (PIP) benefits after she was injured in an automobile accident, decision of a court of appeal reversing the trial court's judgment in favor of the plaintiff is reversed where, because a 2001 amendment creating the statutory presuit notice provisions constitutes a substantive change to the statute, it cannot be retroactively applied to insurance policies issued before the effective date of the amendment.

[02/04] Lukather v. Gen Motors, LLC
In plaintiff's suit against General Motors pursuant to the Song-Beverly Consumer Warranty Act, judgment of the trial court in favor of plaintiff is affirmed where: 1) there was sufficient evidence to support the trial court's willfulness finding; 2) defendant provided neither legal authority nor any equitable ground to support its mitigation of damages defense; and 3) defendant failed to show that the trial court abused its discretion in awarding prejudgment interest, attorney's fees and costs.

[02/04] Bell v. Bayerische Motoren Werke Aktiengesellschaft
In plaintiff's action against an automobile maker for negligence and products liability for severe injuries when he lost control of his BMW Z3 roadster convertible on a freeway, judgment of the trial court granting plaintiff's new trial motion but denying a motion for judgment notwithstanding the verdict is affirmed in part and reversed in part where: 1) the trial court prejudicially erred by granting a new trial based on inadmissible statements in juror declarations; 2) the record does not justify a new trial on the grounds stated by the trial court; 3) the new trial order cannot be affirmed on other grounds; and 4) plaintiffs have shown no prejudicial error in the judgment.

[01/06] Franks Inv. Co. v. Union Pac. R.R. Co.
In a state law possessory action filed by a landowner to preserve a long-existing crossing over railroad tracks, judgment for defendant based on the preemption of plaintiff's claims under the Interstate Commerce Commission Termination Act is reversed where: 1) the dispute did not invoke laws that had the effect of managing or governing, and not merely incidentally affecting, rail transportation; and 2) there was no evidence in the record to permit a finding that the crossings created any unusual interference with the railroad.

[10/23] Missouri Pacific R.R. Co, v. Limmer
In plaintiff's wrongful death action arising out of a truck-train collision, trial court's ruling in favor of plaintiffs is reversed as it erred in concluding that federal regulations do not apply in this case, and thus, judgment is rendered that plaintiffs take nothing.

[09/25] In re Union Pacific R.R. Co.
In plaintiff's negligence action against the Union Pacific Railroad Company when it collided with another train releasing toxic fumes to nearby residents, defendant's petition for writ of mandamus is granted as the trial court abused its discretion when it compelled the defendant to produce confidential information relating to shipping rates and the defendant met its burden of establishing that the information is protected by trade secret privilege, and the plaintiff failed to demonstrate how the information is necessary or essential to the fair adjudication of the case.

[08/26] Reid v. Hindt
In a personal injury action arising from an automobile accident, judgment and award for plaintiff is affirmed where, despite plaintiff's motion for a new trial and opposition to an additur motion, the trial court did not violate plaintiff's right to a jury trial by granting defendant's motion for additur after a jury award of zero damages. The right to a jury trial only requires that defendant consent to additur and plaintiff consent to remittitur.

[08/24] General Motors Corp. v. Grenier
In an action brought by a former auto mechanic suffering from a fatal form of lung cancer claiming that dust from brake shoes and other friction products manufactured by defendant-Ford Motor Company caused his illness, a judgment in favor of plaintiff following a prior remand is affirmed where: 1) there was no abuse of discretion in the admission of certain of plaintiffs' experts testimony; 2) there was no merit in Ford's claims that it was entitled to judgment as a matter of law or a new trial.

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