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.

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.

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).

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.

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.

The Lawletter Vol 35 No 4, March 4, 2011

Tim Snider, Senior Attorney, National Legal Research Group

The U.S. Supreme Court recently had occasion to examine one of the more controversial provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA").  Chapter 13 of the Bankruptcy Code uses a statutory formula known as the "means test" to help ensure that debtors who can pay creditors do pay them.  The means test instructs a debtor to determine his "disposable income"—the amount he has available to reimburse creditors—by deducting from his current monthly income "amounts reasonably necessary to be expended" for, inter alia, "maintenance or support."  11 U.S.C. § 1325(b)(2)(A)(i).  For a debtor whose income is above the median for his state, the means test identifies which expenses qualify as "amounts reasonably necessary to be expended."  As relevant here, the statute provides that "[t]he debtor's monthly expenses shall be the debtor's applicable monthly expense amounts specified under the National Standards and Local Standards, and the debtor's actual monthly expenses for the categories specified as Other Necessary Expenses issued by the Internal Revenue Service for the area in which the debtor resides."  Id. § 707(b)(2)(A)(ii)(I).

The Lawletter Vol 35 No 4, March 4, 2011

Brett Turner, Senior Attorney, National Legal Research Group       

A large and growing number of states require the parties in a divorce case to file a financial statement with the court.  The statement must list the parties' assets, the values thereof, and sometimes the filing party's position as to the classification of the assets as marital or separate property.

These statements generally constitute admissible evidence if the case is tried.  See, e.g., In re Marriage of Hubbs, 843 N.E.2d 478, 486 (Ill. App. Ct. 2006) ("[A] financial statement is competent evidence of value[.]"); Yauch v. Yauch, 901 So. 2d 920 (Fla. Dist. Ct. App. 2005) (where wife valued van at $4,000 on her financial statement and no other evidence of value was presented, trial court erred by valuing van at $0; valuation had no support in the record); Winter v. Winter, 857 N.Y.S.2d 69 (App. Div. 2008) (where wife's net worth statement valued vehicle at $11,000, trial court erred by valuing the vehicle at its $15,000 purchase price).  See generally 1 Brett R. Turner, Equitable Distribution of Property § 4:5 n.21 (3d ed. 2005 & Supp. 2010).  In particular, a financial statement that supports the opposing party's position may receive considerable weight as an admission against interest.

Because financial statements potentially carry so much weight, it is critical that the statement not contain errors.  But it is impossible to avoid errors completely, especially when a statement must be filed early in the case, before discovery is complete.

What should a party do when a mandatory financial statement contains an inadvertent error? A good example of what not to do is Doyle v. Doyle, Nos. 2007‑CP‑01925‑COA, 2008‑CP‑01927‑COA, 2010 WL 3221909 (Miss. Ct. App. Aug. 17, 2010) (not yet released for publication).  There, the husband filed a financial statement that valued a vehicle at $23,000, subject to a $28,000 lien.  But the statement listed the equity in the vehicle at positive $5,000.  The husband claimed that this number was a typographical error, with the minus sign simply omitted.  An amended statement was apparently filed, but it did not appear in the record.

The husband did not introduce any other evidence as to the value of the vehicle.  The trial court therefore had two pieces of evidence before it:  the financial statement, which supported two different values (positive and negative $5,000), plus the husband's oral testimony that the negative value was correct.  The trial court chose to believe the positive value.  By a 2-1 margin, the appellate court affirmed.