Vested Interest - Tort Briefs - December 1998 Issue

SUPREME COURT TO CONSIDER DEADLINE FOR TRANSFERS TO FEDERAL COURT

An Alabama case will be the basis for a Supreme Court decision resolving issues of service and court jurisdiction. A Canadian company sued an Illinois firm in Alabama state court, faxing a copy of its complaint on January 26,1997 and sending a copy by registered mail which arrived on February 12. On March 13, the Illinois firm sought to have the case transferred to federal court, claiming they had 30 days from receipt of the mailed complaint to do so. The Canadian company objected, saying that the 30 days should run from the date of the fax transmission. The District Court sided with the Illinois company, using the registered mail to start the clock, but the 11th Circuit overturned. The U.S. Supreme Court will rule on Murphy Bros. V Michetti Pipe Stringing (97-1909) this term. (AP, November 2, 1998)

SEX BIAS CASE GOES TO U.S. SUPREME COURT

Carole Kolstad had worked for the American Dental Association for several years when she applied to succeed her supervisor upon his retirement. She was denied the promotion after the ADA re-wrote the job description to favor a male applicant. A trial court has already ruled that the ADA's actions were an illegal expression of sex bias, and that she is due $52,718 in back pay. But the jury could not determine if she was also due punitive damages. The trial judge refused to allow the jury to consider punitives, a decision which was overturned by a three judge panel of the U.S. Circuit Court for the District of Columbia; which decision was later overturned by a 6-5 vote of the entire DC Circuit. The U.S. Supreme Court will now consider the meaning of the phrase "malice or reckless indifference" in Title VII of the Civil Rights Act of 1964. (Chicago Sun-Times, November 3, 1998)

RIGHT TO SUE CANNOT BE BARGAINED AWAY: U.S. SUPREME COURT

A unanimous U.S. Supreme Court has ruled that workers cannot be bound by arbitration clauses in union-negotiated employment contracts. The case arose when two South Carolina Longshoremen sued their employers under the Americans with Disabilities Act. The employers sought to block the suits, noting that the workers had signed binding arbitration clauses in their employment contracts. The U.S. Circuit Court agreed, but a 9-0 ruling by the U.S. Supreme Court affirms that workers cannot bargain away their constitutional right to a jury trial without a "clear and unmistakable waiver, wrote Justice Antonin Scalia for the Court. "The right to a federal judicial forum is of sufficient importance that it cannot be casually waived." (Chicago Sun-Times, November 17,1998)

CONNECTICUT COURTHOUSE ATTACKED WITH RIGGED CAR

A stolen Ford Explorer, its accelerator weighted down, smashed into the courthouse in Norwalk, Connecticut, barreling through the front doors. The assault was the fourth such incident in 17 years, though two of the previous crashes were unintentional. The courthouse is one of the few in the state with a street-level main entrance; most others have high steps leading up to the front door. The car drove the length of the first floor, smashing through a brick wall at the rear. No suspects were immediately identified. (AP, October 29, 1998)

INTERNATIONAL COURT OF JUSTICE LOW ON FUNDS

The International Court of Justice, an arm of the United Nations that issues non-binding rulings on disputes between countries, cites a growing caseload and reduced allocations in its plea for additional fiends. The Court, established in 1946 and based in The Hague, Netherlands, has an annual budget of $11 million. Judge Stephen M. Schwebel fears that without additional resources, the Court will not be able to serve its function. A separate European Court of Human Rights has been established in Strasbourg, France, to hear complaints arising out of the 1950 European Human Rights Convention. (AP, October 27 & November 3, 1998)

FAMILY SUES POLICE OVER DAUGHTER'S DEATH

Neighbors called Philadelphia Police when they heard screams and a choking sound from Shannon Scheiber's apartment at 2 a.m. Officers responding to the call, however, refused to investigate when they saw no light from under her apartment door. The next morning, her body was discovered in the apartment, apparently murdered during a robbery. The parents of the 23-year-old graduate student are suing for monetary damages, but they also want explicit changes in police response procedures and training courses. (AP, October 27, 1998)

ONCALE SETTLES SEXUAL HARASSMENT SUIT

Nearly seven years after he initially complained of sexual harassment, and eight months after the U.S. Supreme Court ruled that he could maintain a sexual harassment suit on the basis of same-sex intimidation, Joseph Oncale has settled his complaint against Sundowner Offshore Services. Terms were not disclosed, but defendants have 30 days to make full payment. Oncale's suit survived dismissal at trial and by the circuit court before the U.S. Supreme Court ruled last March that same-sex harassment was prohibited by federal law. (AP, October 24, 1998)

CHICAGO HOSPITAL SETTLES CHICKEN POX CASE

Agnes Hearlston was six months pregnant when she noticed the early signs of chicken pox. An older child had developed the disease recently, but Hearlston never had it as a child and so lacked the immunity needed to ward off infection. She called her doctor at Loyola Hospital, but was merely told to treat the illness with calamine lotion and warm baths. She was not treated with intravenous acyclovir for another 36 hours, during which time the illness, always more serious in adults than in children and very serious for pregnant women, spread. Hearlston ultimately died from complications from chicken pox; her fetus did not survive. Loyola Hospital has agreed to settle her wrongful death claim for $4.25 million. (Chicago Sun-Times, November 24,1998)

TABLOID GUILTY OF LIBEL BY REPEATING CLAIM

A 1989 article in the supermarket tabloid The Globe ran the photograph of a Bakersfield, California, man alleged to be the killer of Robert Kennedy in 1968. The accompanying story repeated unsubstantiated allegations that the killing was carried out by Pakistani extremists working with the Iranian government. In running the story, The Globe failed to contact any witnesses who could substantiate or refute the story, even though it had serious reasons to doubt the accuracy of the allegations. A jury trial resulted in a $1.75 million verdict, which the California Supreme Court upheld, noting "the report of such accusations can have a devastating effect on the accused individual." The Court specifically noted that the plaintiff was not a public figure at the time of the allegation. (AP, November 2, 1998)

BUSINESSES ASSAULT LEGAL SERVICES IN LOUISIANA: IF YOU CAN'T BEAT'EM, DISQUALIFY'EM

The Tulane Environmental Law Clinic, operated by law students at Tulane University, succeeded in winning a court order blocking a known polluter from opening a large processing plant in a primarily black, low-income neighborhood. The polluter responded by asking the Louisiana Supreme Court to limit the scope of cases the Clinic can handle. The Court, with several new members sponsored by business groups, agreed to the new limits. Now, the Clinic can take cases only for plaintiffs who earn less than $10,056 per year, or $20,563 for a family of four. Nor can the Clinic handle class action suits in the future, unless a majority of the class meets the income restriction. As a result, the Clinic has had to turn away half of its applicants, including nearly half of those claiming domestic problems and nearly all employment cases. (AP, November 12, 1998)

THE NEW MCDONALD'S CASE: VICTORY FOR DEFENSE

Chris and Susan Leu took their 18-month-old son to a Kansas City, Kansas, McDonald's outlet for breakfast. One of them ordered the coffee. When the boy knocked the cup over, he received second-degree burns that resulted in light scarring. The family sued, claiming that the coffee, at 185 degrees, was too hot. But a jury ruled for defendants, concluding that the franchisee should not be liable for the injuries. The case recalls a 1994 verdict for $2.9 million in punitives and compensatories, later reduced to $480,000 and then settled for an undisclosed sum. The victim in that case, 81-year-old Stella Liebeck, suffered thirddegree burns over a large part of her body. (AP, November 19, 1998)

HOUSTON POLICE SUED OVER EXECUTION, COVER-UP

A police interview with a drunken man turned up unsubstantiated allegations of drug dealing at a Houston apartment. Even though the man was trying to avoid arrest and was obviously drunk, police raced to the apartment where an ensuing shoot-out left 22year-old Pedro Oregon dead with twelve bullet wounds, nine in the back. A police investigation cleared the officers of any wrongdoing, but the family has filed a civil suit to get to the truth. Claiming that the July 12 raid was illegal and unjustified, Oregon's family seeks to protect other families from suffering the same tragedy. (AP, November 18, 1998)