Lawyers Weekly USA articles from January 2005

Lawyers Weekly USA archives from January 2005

Tort reform could become reality as new Congress returns to Wash. for 2005.(Washington)
January 17, 2005... Byline: Reni Gertner As a new Congress returns to Washington for 2005, a wide range of tort reform bills are at the top of the priority list and are likely to move forward, experts tell Lawyers Weekly USA. At a White House economic...

10th Circuit strikes down Family Leave Act regulation defining 'worksite' for employees.
January 17, 2005... Byline: Paul D. Boynton An employee who spent most of her time working at a nursing home facility rather than at the larger regional office of her joint employer was not entitled to Family Leave Act benefits because her worksite fell short...

Federal court rules attorney can be required to sign subrogation agreement.
January 17, 2005... Byline: Lawyers Weekly USA Staff An attorney who represents an ERISA claimant can be required to sign a subrogation agreement promising to reimburse the plan before it will advance funds to the claimant for accident-related expenses, the...

Illinois Appellate Court affirms that malpractice insurer can rescind attorney's policy.
January 17, 2005... Byline: Lawyers Weekly USA Staff A legal malpractice insurer didn't waive its right to rescind an attorney's policy - even though it didn't act until over a year after learning that the policyholder had failed to disclose a pending...

Federal court rules debtor can't sue state agencies for damages.(Brief Article)
January 17, 2005... Byline: Lawyers Weekly USA Staff Two state agencies can't be sued for trying to collect student loan payments from a Chapter 7 debtor, the 11th Circuit has ruled. The debtor and his wife initiated an adversary proceeding seeking a...

Federal court rules insurer doesn't have to defend junk fax suit.(American States Insurance Co. v. Capital Associates of Jackson County, Inc. case)(Brief Article)
January 17, 2005... Byline: Lawyers Weekly USA Staff The "advertising injury" clause of an insurance policy does not cover the sending of junk faxes, and therefore an insurance company has no duty to defend such a case, the 7th Circuit has ruled. The...

U.S. Supreme Court, Certiorari Granted: January 17, 2005.(Graham County Water District v. U.S. ex rel. Wilson wrongful discharge actions case)(Brief Article)
January 17, 2005... Byline: Lawyers Weekly USA Staff Can a county worker allegedly constructively discharged for reporting misconduct by her co-workers sue under the federal False Claims Act for retaliation, despite the expiration of the state statute of...

Illinois Court of Appeals rules employee can sue for retaliatory discharge.(Mackie v. Vaughn Chapter-Paralyzed Veterans of America case)(Brief Article)
January 17, 2005... Byline: Lawyers Weekly USA Staff An employee who was fired after reporting an organization's director was apparently downloading the group's mailing list for private purposes can sue for retaliatory discharge, the Illinois Court of Appeals...

Okla. Court of Appeals rules minor should be compelled to pay child support.(Brief Article)
January 17, 2005... Byline: Lawyers Weekly USA Staff A 15-year-old boy who had sex with a 19-year-old woman when he was under the legal age for consent can be compelled to pay support for the child that resulted, the Oklahoma Court of Appeals has ruled. A...

Utah Supreme Court rules state's survival statute doesn't limit estate's recovery.
January 17, 2005... Byline: Lawyers Weekly USA Staff A state survival statute doesn't limit an estate's right to recover underinsured motorist benefits owed to the decedent, the Utah Supreme Court has ruled. The decedent was injured in a car accident....

Rhode Island Supreme Court rules contractor not liable for failing to install guardrail.(Soave v. National Velour Corp. case)
January 17, 2005... Byline: Lawyers Weekly USA Staff A contractor who followed the building plans provided by an architect and failed to install a guardrail along the top of a retaining wall isn't liable for injuries suffered by a plaintiff who fell off the...

Kansas Supreme Court rules state not liable for physical abuse of child.
January 17, 2005... Byline: Lawyers Weekly USA Staff Although the state knew that a baby of abusive, mentally ill parents was at risk, it could not be sued for failing to protect the child because primary responsibility had been assigned to the federal Bureau...

New Jersey appellate court rules state annuity cap can't be enforced against Medicaid recipient.
January 17, 2005... Byline: Lawyers Weekly USA Staff A state could not cap the amount of marital assets an elderly couple could use to purchase an annuity that was designed to ensure the husband's eligibility for Medicaid when he entered a nursing home, the...

Kansas Supreme Court rules jointly held stock an asset for Medicaid eligibility purposes.(Schalansky v. Hellebuyck case)
January 17, 2005... Byline: Lawyers Weekly USA Staff A woman was ineligible for Medicaid because of stock she held as a joint tenant, the Kansas Supreme Court has ruled. The woman inherited the stock from her late husband. Three years later, she added her...

Montana Supreme Court rules age can't be a factor in calculating workers' comp benefits.
January 17, 2005... Byline: Lawyers Weekly USA Staff Older workers may not be given workers' comp benefits at a lower rate than younger workers, the Montana Supreme Court has ruled. A 65-year-old worker, who had begun receiving social security retirement...

New Jersey Supreme Court rules auto accident victim entitled to workers' compensation.(Brief Article)
January 17, 2005... Byline: Lawyers Weekly USA Staff An employee hurt in an auto accident was entitled to workers' compensation benefits where the accident occurred while he was returning from dinner at the direction of his supervisor, the New Jersey Supreme...

Montana Supreme Court rules widow entitled to workers' comp benefits for fall at conference.
January 17, 2005... Byline: Lawyers Weekly USA Staff A woman is entitled to workers' comp death benefits where her husband, a deputy sheriff, fell from a motel balcony after a night of drinking at a law enforcement conference, the Montana Supreme Court has...

Federal Trade Commission issues final rule on anti-spam law.
January 17, 2005... Byline: Lawyers Weekly USA Staff The Federal Trade Commission has issued a final rule that clarifies whether certain e-mails are subject to the provisions of the anti-spam law signed by President Bush last year. The rule also makes it...

Income limit for Roth IRA conversions is changed under 1998 tax law provision.(Brief Article)
January 17, 2005... Byline: Lawyers Weekly USA Staff Required minimum distributions will no longer be taken into account in determining the modified Adjusted Gross Income limitation for Roth IRA conversions, under a provision in a 1998 tax law that went into...

Mental health parity rules extended under amendment released by Dept. of Labor.
January 17, 2005... Byline: Lawyers Weekly USA Staff A law that bars employers from setting lower annual or lifetime limits for mental health coverage than for other illnesses will be extended through Dec. 31, 2005, under an interim final amendment released...

Treasury Department won't change flex spending rule.(health flexible spending accounts)(Brief Article)
January 17, 2005... Byline: Lawyers Weekly USA Staff The Treasury Department has denied a request from the Senate Finance Committee to revise a rule that requires employees to forfeit unused balances in health flexible spending accounts at the end of a plan...

IRS issues final rules on tax advice.(Internal Revenue Service)
January 17, 2005... Byline: Lawyers Weekly USA Staff The Treasury Department and the IRS have released final rules that amend the standards for opinions written by tax practitioners, in an effort to crack down on abusive tax shelters. The rules amend...

President Bush signs bill enhancing counterfeit trafficking prohibitions.(Anti-Counterfeiting Amendments Act of 2004)(Brief Article)
January 17, 2005... Byline: Lawyers Weekly USA Staff Prohibitions on trafficking in genuine labels for counterfeit products will be enhanced under a bill that has been signed into law by President Bush. Under the measure, individuals who acquire genuine...

Tribal courts gaining mainstream status in legal world.(Indian law)
January 17, 2005... Byline: Correy E. Stephenson On Oct. 2, 2004, the first civil jury trial in the Shoshone and Arapahoe Tribal Court in Wyoming ended with a $2.5 million verdict for a worker injured on an oilrig. What is striking about the case is that...

ABA launches task force to address threats to attorney-client privilege.(American Bar Association )
January 17, 2005... Byline: Reni Gertner The American Bar Association has launched a task force to respond to concerns that the attorney-client privilege is being eroded in the wake of Sept. 11 and various recent corporate scandals. "In the post 9/11,...

Stomach-reducing surgery lawsuits are growing.
January 17, 2005... Byline: Nora Lockwood Tooher After winning the Super Bowl in 2002, New England Patriots offensive coordinator Charlie Weis had gastric bypass surgery, believing that his weight compromised his chances of landing a head coach job. He...

Verdicts & Settlements: Connecticut employment verdict could have big impact on insurance industry.
January 17, 2005... Byline: Natalie White A Connecticut jury recently awarded $2.3 million in compensatory damages to an independent insurance agent in a decision that could shake up relationships between insurance companies and their agents across the...

Verdicts & Settlements: U.S. District Court awards $1B spam award.
January 17, 2005... Byline: Natalie White In what is believed to be one of the largest judgments in a spam case, a federal judge recently awarded an Internet service provider in Iowa more than $1 billion against junk e-mailers. U.S. District Court Judge...

Federal court jury in Baltimore awards $1.25M for nursing home abuse.(Brief Article)
January 17, 2005... Byline: Lawyers Weekly USA Staff A federal court jury in Baltimore has awarded $1.25 million to the family of an elderly woman who died from injuries allegedly inflicted by a nurse. The three children of Ruth F. Bowen alleged that...

U.S. Supreme Court, Certiorari Granted: January 17, 2005.
January 17, 2005... Byline: Lawyers Weekly USA Staff Does a party bringing a Batson challenge have to prove that it is more likely than not that the other party's unexplained peremptory challenges were based on impermissible bias? U.S. Supreme Court....

U.S. Supreme Court grants certiorari for 1984 Patent Act interpretation case.
January 17, 2005... Byline: Lawyers Weekly USA Staff How should the "safe haven" for drug companies in the 1984 Patent Act be interpreted? U.S. Supreme Court. Merck KGaA v. Integra Lifesciences I Ltd., No. 03-1237. Certiorari granted Jan. 7, 2005. Ruling...

Plastic surgery TV shows open up legal and ethical issues.
January 31, 2005... Byline: Nora Lockwood Tooher Reality television shows such as ABC-TV's "Extreme Makeover" depict plastic surgery as a quick fix for unhappy men and women looking for better lives through tummy tucks, breast implants and facelifts. ...

Wyeth Pharmaceuticals' fen-phen settlement plan splits plaintiffs' lawyers.
January 31, 2005... Byline: Nora Lockwood Tooher Pressure from Wyeth Pharmaceuticals to resolve protracted fen-phen litigation is dividing the ranks of plaintiffs' lawyers representing clients who claim the diet drug cocktail caused their heart and lung...

Commentary: Choosing utilities and accessories for your computer.
January 31, 2005... Byline: Bruce L. Dorner Your new suit looks great hanging in the closet. But when you get dressed in the morning, it just doesn't look as good. Could it be that the tie doesn't match? Maybe the shirt is the wrong color? Whatever the...

Plaintiff who developed subsequent injury can't sue again, rules Vermont Supreme Court.
January 31, 2005... Byline: Lawyers Weekly USA Staff A plaintiff who received a nominal jury award for head injuries sustained during an amusement park ride couldn't sue again eight years later when she developed epilepsy as a result of the same injury, the...

Idaho Supreme Court rules 'Blakely' rule does not apply to state sentencing scheme.
January 31, 2005... Byline: Lawyers Weekly USA Staff A state sentencing scheme that gives judges discretion in sentencing doesn't violate the Sixth Amendment, the Idaho Supreme Court has ruled. The defendant was convicted of two counts of lewd conduct...

Colo. Supreme Court rules defendant had reasonable expectation of privacy at work.(Colorado )
January 31, 2005... Byline: Lawyers Weekly USA Staff A defendant had a reasonable expectation of privacy in the back room of the liquor store where he worked, even though the room was accessible to delivery persons and viewable by the store's video...

Va. Supreme Court rules police officer's search of companion didn't violate Fourth Amendment.(El-Amin v. Commonwealth)
January 31, 2005... Byline: Lawyers Weekly USA Staff A police officer acted permissibly under the Fourth Amendment in patting down a defendant after discovering a weapon on one of his companions, the Virginia Supreme Court has ruled. The police received...

Va. Supreme Court rules state's fornication statute is unconstitutional.(Martin v. Ziherl)(Brief Article)
January 31, 2005... Byline: Lawyers Weekly USA Staff A state statute criminalizing fornication is unconstitutional and cannot be used to bar an unmarried woman from suing over injuries allegedly inflicted during a sexual relationship, the Virginia Supreme...

Oregon court rules worker fired for drug policy violation can sue for disability discrimination.(Washburn v. Columbia Forest Products Inc.)
January 31, 2005... Byline: Lawyers Weekly USA Staff An employee fired for violating a workplace drug policy could sue for disability discrimination based on his employer's failure to reasonably accommodate his use of medical marijuana, the Oregon Court of...

Idaho Supreme Court rules mother subject to punitives for interfering with custody rights.(Wolf v. Wolf)
January 31, 2005... Byline: Lawyers Weekly USA Staff A divorced father may obtain punitive damages for his ex-wife's tortious interference with his custody rights, the Iowa Supreme Court has ruled. The claim was based on the mother's decision to take her...

WI Supreme Court rules health club can be sued for drowning despite exculpatory clause.(Atkins v. Swimwest Family Fitness Center)
January 31, 2005... Byline: Lawyers Weekly USA Staff An exculpatory clause in a health club's guest registration form did not bar a negligence suit over a woman's drowning in the club's lap pool, the Wisconsin Supreme Court has ruled in reversing a summary...

Colorado Court of Appeals rules child doesn't have duty to mitigate damages.(Francis v. Dahl)(Brief Article)
January 31, 2005... Byline: Lawyers Weekly USA Staff A 10-year-old girl who was injured in an auto accident had no duty to mitigate her damages, the Colorado Court of Appeals has ruled in holding a jury instruction was inappropriate. The girl sued the...

CA Court of Appeals rules arbitration agreement inapplicable to medical malpractice claim.(Reigelsperger v. Siller)(Brief Article)
January 31, 2005... Byline: Lawyers Weekly USA Staff A patient was not bound by an arbitration agreement executed two years prior to chiropractic treatment which gave rise to his medical malpractice claim, even though the agreement stated it applied to both...

Iowa Supreme Court rules insurance proceeds from damaged home not reachable by decedent's creditors.(Estate of Tolson)(Brief Article)
January 31, 2005... Byline: Lawyers Weekly USA Staff Insurance proceeds received because of damage to a decedent's homestead are exempt from claims by the estate's creditors, the Iowa Supreme Court has ruled in reversing a trial court. The decedent left...

Nebraska Supreme Court rules worker assaulted going to car can get workers' comp.(Zoucha v. Touch of Class Lounge)(Brief Article)
January 31, 2005... Byline: Lawyers Weekly USA Staff A bartender who was assaulted and injured in a parking lot after leaving work is entitled to workers' compensation benefits, the Nebraska Supreme Court has ruled. The plaintiff finished her late-night...

U.S. Supreme Court Decisions: January 31, 2005.(cases)
January 31, 2005... Byline: Lawyers Weekly USA Staff SENTENCING The mandatory application of the federal sentencing guidelines violates the Sixth Amendment. U.S. Supreme Court. U.S. v. Booker, No. 04-104, U.S. v. Fanfan, No. 04-105. Jan. 12, 2005....

U.S. Supreme Court, Certiorari Granted: January 31, 2005.(Mid-Con Freight Systems Inc., Michigan Public Service Commission)(Brief Article)
January 31, 2005... Byline: Lawyers Weekly USA Staff CRIMINAL LAW Does the one-year statute of limitations under the Effective Death Penalty and Anti-Terrorism Act for filing a certificate of appealability apply to an attempted appeal of the denial of...

IRS suspends penalties for some taxpayers.(Internal Revenue Service)(Brief Article)
January 31, 2005... Byline: Lawyers Weekly USA Staff The IRS has suspended certain interest and penalties owed by taxpayers who voluntarily report additional taxes. Previously, the rule applied only where the additional taxes were discovered by the IRS....

OSHA requires employers to post job-related injury and illness numbers.(Occupational Safety and Health Administration)(Brief Article)
January 31, 2005... Byline: Lawyers Weekly USA Staff Employers must post a summary of the job-related injuries and illnesses that occurred in the previous year, under new requirements announced by OSHA. The requirements go into effect Feb. 1. OSHA...

IRS issues guidance on contributions to health savings accounts.(Internal Revenue Service)(Brief Article)
January 31, 2005... Byline: Lawyers Weekly USA Staff The IRS has released a guidance explaining that eligible partners - but not partnerships - can deduct contributions made to their health savings account that are treated as distributions to the partner for...

IRS can collect taxes from general partners.(Internal Revenue Service)(Brief Article)
January 31, 2005... Byline: Lawyers Weekly USA Staff The IRS has reaffirmed its position that it can collect a partnership's employment taxes from its general partners through administrative means. The Service also provided some information about the...

2005 expected to be a big year for tobacco litigation.
January 31, 2005... Byline: Correy E. Stephenson After more than 50 years of contentious tobacco litigation, both sides agree on one thing: 2005 will be a big year. "There's a lot going on - some wins and some losses, but we certainly disagree with...

Cases against tobacco companies are changing for individual plaintiffs.
January 31, 2005... Byline: Correy E. Stephenson The first individual personal injury suit against a tobacco company was filed in 1954, but the first plaintiff to actually collect an award did not do so until a half century later when Phillip Morris paid $5...

Plaintiffs' lawyers cautiously consider hospital-infection suits.
January 31, 2005... Byline: Nora Lockwood Tooher Shirley Walters, 66, went into Jewish Hospital in Louisville, Ky., for neck surgery. Following the surgery, she developed serious bedsores and acquired a virulent staph infection. She died nine months later. ...

Former dieter seeks warning for Atkins diet in lawsuit filed in Florida state court.
January 31, 2005... Byline: Correy E. Stephenson In 1972, Dr. Robert C. Atkins published "Dr. Atkins' Diet Revolution," inciting just that: a high-fat, low-carbohydrate revolution in American dieting. Over the past 30 years, the Atkins diet has become...

Success of Charleston, S.C., livability court inspires other communities to launch their own.
January 31, 2005... Byline: Correy E. Stephenson The concept of "Southern hospitality" has taken on a distinctly legal edge in the 21st century with a growing number of "livability courts" dedicated to cases that affect the general quality of life in a...

Okla. jury awards $1.75M in punitive damages for predatory loan practices.(Gilbert v. Security Finance Corp. of Oklahoma Inc.)
January 31, 2005... Byline: Natalie White An Oklahoma jury showed its outrage against predatory loan practices recently when it awarded $1.75 million to a mildly retarded man who was caught in an ever-increasing cycle of debt. The jury's outrage was...

Federal court in Md. holds nurse liable in death of elderly woman.(Bowen v. Barlow)
January 31, 2005... Byline: Natalie White A nurse and her employer have been ordered to pay $1.25 million in the violent death of an 81-year-old woman at a hospital in Baltimore, Md. Ruth Bowen had been hospitalized at the Franklin Square Hospital Center...

Missouri state court awards man acquitted of abuse $170,000 from ex-wife.(Bather v. Logan)
January 31, 2005... Byline: Anne C. Vitale A Missouri father who was acquitted of sex abuse charges made during a custody battle has won nearly $170,000 in a malicious prosecution case. William Bather of Liberty, Mo., claimed that his ex-wife obtained a...

Verdicts & Settlements: January 31, 2005: Ex-prisoners awarded $1.2M in negligence suit.
January 31, 2005... Byline: Lawyers Weekly USA Staff In what could be a harbinger of judgments to come, a federal jury awarded $1.2 million to two former Bucks County, Pa. prison inmates who developed abscessed wounds from a skin infection that swept through...

Verdicts & Settlements: January 31, 2005: $60M awarded to family of girl paralyzed by drunk fan.
January 31, 2005... Byline: Lawyers Weekly USA Staff A New Jersey jury awarded $60 million on Jan. 18 to the family of a 7-year-old girl who was paralyzed when a drunken football fan on his way home from a New York Giants game crashed into the family's car....

Verdicts & Settlements: January 31, 2005: Officer awarded $1.6M in reverse discrimination suit.
January 31, 2005... Byline: Lawyers Weekly USA Staff A former Inglewood, Calif. police officer who was fired for punching a black teenager and slamming him against a patrol car in 2002 was awarded $1.6 million Jan. 18 in a reverse discrimination lawsuit that...

Verdicts & Settlements: January 31, 2005: Chicago to pay $2M for boy's wrongful conviction.
January 31, 2005... Byline: Lawyers Weekly USA Staff City officials in Chicago agreed Jan. 10 to pay $2 million to settle a wrongful arrest lawsuit filed by the family of one of two young boys wrongly accused in the 1998 murder of 11-year-old Ryan Harris. ...

Verdicts & Settlements: January 31, 2005: State Farm to pay $40M in multi-state settlement.
January 31, 2005... Byline: Lawyers Weekly USA Staff State Farm Mutual Insurance Co. on Jan. 10 agreed to pay $40 million to thousands of car owners around the country to settle allegations that it allowed automobiles that were totaled in crashes to be resold...

Verdicts & Settlements: January 31, 2005: Former inmate gets $1.9M settlement in negligence suit.
January 31, 2005... Byline: Lawyers Weekly USA Staff Anoka County in Minnesota has agreed to pay $1.9 million to a former work-release inmate who was neglected by workhouse officers and found comatose in his dorm-style room. Curtis Chromulak, 39, was...

Verdicts & Settlements: January 31, 2005: Car dealership must pay $5M to teen hit by drunk driver.
January 31, 2005... Byline: Lawyers Weekly USA Staff An Alabama car dealership has agreed to pay $5.6 million to a teen who was paralyzed two years ago after being struck by a drunk driver operating a car owned by the dealership. According to The...

Verdicts & Settlements: January 31, 2005: High school coach gets $800K in defamation suit.
January 31, 2005... Byline: Lawyers Weekly USA Staff A parent accused of sending out a fake press release defaming a high school baseball coach who had cut the parent's son from the team was ordered on Jan. 18 to pay the coach nearly $800,000. An Illinois...

Verdicts & Settlements: January 31, 2005: $3.9M awarded to dead lawyer's family.
January 31, 2005... Byline: Lawyers Weekly USA Staff The family of a New York attorney who was struck and killed by a delivery van on her way to work seven years ago was awarded $3.9 million for her wrongful death. Beverly Mitchell, 46, an attorney and...

Verdicts & Settlements: January 31, 2005: Child with rare genetic disorder gets $3.5M settlement.
January 31, 2005... Byline: Lawyers Weekly USA Staff Winthrop-University Hospital in Mineola, N.Y. agreed on Jan. 10 to pay $3.5 million for delayed diagnosis and treatment in 1999 of a child who suffers from a rare genetic disorder that caused permanent brain...

Verdicts & Settlements: January 31, 2005: Disability insurer must pay $11.6M in 'bad faith' suit.
January 31, 2005... Byline: Lawyers Weekly USA Staff A federal court jury in Las Vegas on Dec. 13 awarded $11.6 million to a man who was improperly denied disability benefits for eight years. Jurors deliberated about two and one-half hours before returning...