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    The Lawletter Blog

    Gale Burns

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    CIVIL PROCEDURE: Is Denial of Summary Judgment Appealable After Trial on the Merits?

    Posted by Gale Burns on Mon, Apr 11, 2011 @ 17:04 PM

    The Lawletter Vol 35 No 6, April 15, 2011

    Suzanne Bailey, Senior Attorney, National Legal Research Group

    Under the Federal Rules of Civil Procedure, may a party appeal an order denying summary judgment after a full trial on the merits?  In Ortiz v. Jordan, 131 S. Ct. 884, 889 (2011), the U.S. Supreme Court, addressing a split among the circuits, unanimously held that the answer is "no."  Compare Black v. J.I. Case Co., 22 F.3d 568, 570‑71 (5th Cir. 1994) (declining to review denial of summary judgment after trial on the merits), and Price v. Kramer, 200 F.3d 1237, 1243‑44 (9th Cir.) (finding no exception to the rule against reviewing denial of summary judgment following a trial on the merits for cases in which the summary judgment rejected the assertion of qualified immunity), cert. denied, 531 U.S. 816 (2000), with Goff v. Bise, 173 F.3d 1068, 1072 (8th Cir. 1999) (holding that the denial of summary judgment based on qualified immunity was reviewable after a trial on the merits), and Ortiz v. Jordan, 316 F. App'x 449, 453 (6th Cir. 2009) (case below).  The issue in Ortiz arose in the context of the assertion of a qualified immunity defense by defendant prison employees in a suit brought by a former inmate pursuant to 42 U.S.C. § 1983, alleging that the officials had failed to protect her from a second sexual assault by a corrections officer after having been informed that he had assaulted her on a prior occasion.  However, the Court's ruling on the procedural issue was not limited to civil rights suits or the assertion of a qualified immunity defense.

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    Topics: legal research, John Buckley, Supreme Court, The Lawletter Vol 35 No 6, summary judgment, Ortiz v. Jordan, Fed. R. Civ. P. 50, qualified immunity, civil procedure

    EMPLOYMENT DISCRIMINATION: Employer Can't Force Discrimination Plaintiffs to Submit to Testing of Personalities and Emotional States

    Posted by Gale Burns on Mon, Apr 11, 2011 @ 13:04 PM

    The Lawletter Vol 35 No 6, April 15, 2011

    John Stone, Senior Attorney, National Legal Research Group

    When four employees from New Jersey sued their employer for race discrimination, and especially racial harassment, in violation of the New Jersey Law Against Discrimination ("LAD"), among the types of relief they sought were damages for emotional distress.  McGhee v. Pathmark Stores, No. ATL-L-2459-08 (N.J. Super. Ct. Law Div. Aug. 23, 2010) (unpublished mem.) (motion for leave to appeal denied Oct. 7, 2010).  The "findings and declarations" provision in LAD itself contemplates such relief.  It states that victims of discrimination can suffer a variety of hardships stemming from the discriminatory treatment, including emotional stress, or even severe emotional trauma, and anxiety.  In recognition of these common effects of discrimination in the workplace, the Supreme Court of New Jersey has said that the legislature intended victims of discrimination to obtain redress for mental anguish, embarrassment, and the like without limitation to severe emotional or physical ailments.  In short, to suffer humiliation, embarrassment, and indignity is by definition to suffer emotional distress, and emotional distress actually suffered by the victim of proscribed discrimination is compensable without corroborative proof, permanency of response, or other physical or psychological symptoms rendering the emotional distress severe or substantial.  Tarr v. Ciasulli, 853 A.2d 921, 927 (N.J. 2004).

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    Topics: legal research, The Lawletter Vol 35 No 6, John Stone. employment discrimination, LAD, psychological testing, personality testing

    PROPERTY: Acquisition of a Prescriptive Easement by a Class of Persons

    Posted by Gale Burns on Mon, Apr 11, 2011 @ 12:04 PM

    April 12, 2011

    Steve Friedman, Senior Attorney, National Legal Research Group

    A prescriptive easement is analogous to adverse possession, the difference being that in a prescriptive easement claim, the claimant acquires only an easement rather than title to the land.  See 28A C.J.S. Easements § 23 (Westlaw database updated Mar. 2011); Cumulus Broad. v. Shim, 226 S.W.3d 366, 378-79 (Tenn. 2007).

    As with adverse possession, a party asserting a prescriptive easement must generally prove, by clear and convincing evidence, adverse use that is visible, open, and notorious, as well as continuous and uninterrupted for the statutory prescriptive period.  See 28A C.J.S., supra, § 23; 25 Am. Jur. 2d Easements and Licenses § 39 (Westlaw database updated Nov. 2010); Hilley v. Lawrence, 972 A.2d 643, 651-52 (R.I. 2009); Shapiro Bros. v. Jones‑Festus Props., 205 S.W.3d 270, 274 (Mo. Ct. App. 2006).

    The existence of prescriptive easements and the requisite elements to establish them have long been plainly set forth in the law; however, there is scant legal precedent regarding  the acquisition of prescriptive easements by an identified class of persons as opposed to an individual or the public generally.  See Flaherty v. Muther, 2011 ME 32, ¶¶ 80-83, 2011 WL 990308, at *16 (not yet released for publication).

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    Topics: legal research, class of persons, requisite requirements, property law, Steve Friedman, prescriptive easement, adverse possession

    PERSONAL INJURY: The Effect of a Patient's Fault in Medical Malpractice Cases

    Posted by Gale Burns on Fri, Mar 25, 2011 @ 16:03 PM

    March 29, 2011

    Fred Shackelford, Senior Attorney, National Legal Research Group

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    Topics: Fred Shackelford, personal injury, comparative fault, contributory negligence, medical malpractice claim, assumption of risk, mitigation of damage

    PRODUCTS LIABILITY: State Law Failure-to-Warn Claims Not Preempted by FDCA

    Posted by Gale Burns on Thu, Mar 24, 2011 @ 17:03 PM

    The Lawletter Vol 35 No 5, March 25, 2011

    Jeremy Taylor, Senior Attorney, National Legal Research Group

    The U.S. Court of Appeals for the Ninth Circuit recently addressed the issue of federal preemption of state negligence and breach-of-warranty claims against a manufacturer of generic, over-the-counter ibuprofen. See Gaeta v. Perrigo Pharm. Co., 630 F.3d 1225 (9th Cir. 2011).  The parents of a minor child who sustained liver failure brought state law claims against the drug maker.  The manufacturer defended on the ground that federal law preempted the parents' causes of action.  The U.S. District Court for the Northern District of California entered summary judgment in the defendant's favor.  The court of appeals reversed, holding that federal law did not preempt the plaintiffs' claims.

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    Topics: legal research, products liability, Jeremy Taylor, federal preemption, FDCA, burden of proof, The Lawletter Vol 35 No 5, state negligence, breach-of-warranty claim, generic drugs

    ARBITRATION: Judicial Intervention

    Posted by Gale Burns on Thu, Mar 24, 2011 @ 16:03 PM

    The Lawletter Vol 35 No 5, March 25, 2011

    Charlene Hicks, Senior Attorney, National Legal Research Group

    A certain degree of tension is on display whenever a party asks the court to resolve a matter concerning the arbitration process.  This tension is heightened when one of the parties to the dispute objects to the arbitration proceeding and turns to the courts for relief.  The extent to which a court may legitimately intervene in the arbitration was recently addressed by the Pennsylvania Supreme Court in Fastuca v. L.W. Molnar & Assocs., 10 A.3d 1230 (Pa. 2011).

    In that case, the state supreme court was asked to review a trial court's order granting the plaintiff's motion to terminate a common-law arbitration proceeding after the arbitrator had entered "findings" which did not fully resolve all of the outstanding issues between the parties.  The supreme court held that the arbitrator's interim "findings" did not constitute a final award within the meaning of the state's Uniform Arbitration Act, "and, thus, that the trial court had no authority under that section to review such findings."  Id. at 1232.  In addition, the supreme court concluded that the trial court lacked the inherent authority to terminate the arbitration proceedings before the arbitrator had issued a final award.  Id.

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    Topics: legal research, Charlene Hicks, The Lawletter Vol 35 No 5, arbitration

    SCHOOLS: School Districts' Standing to Seek Redress from States Under IDEA

    Posted by Gale Burns on Thu, Mar 24, 2011 @ 16:03 PM

    The Lawletter Vol 35 No 5, March 25, 2011

    Steve Friedman, Senior Attorney, National Legal Research Group

    On October 30, 1990, the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1482 ("IDEA"), was enacted in an effort to ensure that children with disabilities are not denied the opportunity to receive a free appropriate public education ("FAPE") by local educational agencies ("LEAs").  Although the IDEA applies only to those states and LEAs that accept federal funding under the IDEA for their public schools, all states have accepted such funding and are thus subject to the IDEA.  At its "core," the IDEA provides for a "cooperative process . . . between parents and schools" to develop an individualized education program ("IEP") in an effort to provide disabled public school students with a FAPE.  See Schaffer v. Weast, 546 U.S. 49, 53 (2005).  If a party objects to an IEP, that party may invoke certain procedural safeguards provided by the IDEA.  See 20 U.S.C. § 1415.  In short, the aggrieved party may file an administrative complaint and request an impartial due process hearing before a state or local administrative officer, and a party aggrieved by the administrative decision then has a private cause of action in federal court.  See Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007).

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    Topics: legal research, Steve Friedman, The Lawletter Vol 35 No 5, schools, IDEA, free appropriate public education

    SCHOOLS: Teacher Immunity—In-School and on Field Trips

    Posted by Gale Burns on Thu, Mar 24, 2011 @ 15:03 PM

    The Lawletter Vol 35 No 5, March 25, 2011

    Anne Hemenway, Senior Attorney, National Legal Research Group

    With spring arriving, so too are the perennial school field trips to Washington, D.C., and other places.  Along with spring field trips, issues inevitably arise concerning school and teacher liability for improper supervision when students act out or get injured while in the care of the school.  Whether a field trip is at issue or not, as a general matter, until 2002, schools were under a duty to properly supervise students and could be held liable for foreseeable injuries proximately caused by the failure to adequately supervise students in the school's care.  See Reed v. Pawling Cent. Sch., 664 N.Y.S.2d 483 (App. Div. 1997); O'Campo v. Dale County Sch. Bd., 589 So. 2d 323 (Fla. Dist. Ct. App. 1991); see also Lawrence T. Kahas et al., Legal Issues and Responsible Practices for School Chaperones, 252 Educ. L. Rep. 1 (West Mar. 4, 2010).  In Gearhart-Soto v. Delsman, 976 So. 2d 1150 (Fla. 2008), a volunteer chaperone sued the local school board for damages arising from injuries she had suffered while assisting a student on a field trip, allegedly because the teacher had negligently left the students unsupervised.  The court held that a material issue of fact existed as to whether the school board was liable for the chaperone's injuries.

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    Topics: legal research, Anne Hemenway, The Lawletter Vol 35 No 5, schools, teacher liability, improper supervision, Paul D. Coverdell Teacher Protection Act of 2001, immunity for simple negligence, public and private schools

    PUBLIC LAW: Large Class Size as Disability Discrimination Against Teachers

    Posted by Gale Burns on Thu, Mar 17, 2011 @ 11:03 AM

    March 15, 2011

    John Stone, Senior Attorney, National Legal Research Group

    A recent decision by the U.S. Court of Appeals for the First Circuit suggests that requiring a teacher to have a relatively large class size may not merely adversely impact the effectiveness of the teacher and the learning by the students—it may also constitute discrimination against teachers who have been determined to be disabled.  Sepúlveda‑Villarini v. P.R. Dep't of Educ., 628 F.3d 25 (1st Cir. 2010).  The author of the opinion in Sepúlveda‑Villarini was retired Associate Justice of the Supreme Court of the United States, The Honorable David Souter, sitting by designation.

    The plaintiffs in the case were two public school teachers in Puerto Rico. Despite some different details, the teachers' circumstances were largely similar. Sepúlveda alleged that he had suffered a stroke while teaching, requiring heart bypass surgery, and that his doctor had ordered him to apply for accommodations upon returning to work. For five school years, the school accommodated Sepúlveda by providing him a classroom on the first floor, a reduced class size of 15 pupils in most of those years, and a rest period. Then, after the Secretary for the Puerto Rico Department of Education had issued instructions to keep class size at a minimum of 20, the school director enlarged Sepúlveda's class to 30 but provided an inexperienced teacher to share his duties. Sepúlveda claimed that the new arrangement was an unreasonable refusal to accommodate his disability, resulting in emotional consequences with physical symptoms requiring treatment, and he sought monetary and equitable relief.

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    Topics: legal research, Rehabilitation Act, discrimination, Sepulveda‑Villarini, plausibility, Americans with Disabilities Act, John M Stone

    Convicted Defendants' Access to DNA Evidence

    Posted by Gale Burns on Wed, Mar 16, 2011 @ 12:03 PM

    March 7, 2011

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    Topics: legal research, Doug Plank, § 1983 claim, DNA testing

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