Read this release hot of the press from the New York Times:
May 5, 2005
Merck Announces Resignation of Chief and Names Replacement
Maine Rejects Catholic Church’s “First Amendment” Defense in Pedophile Priest Case
The Maine Supreme Court has ruled that the Roman Catholic Bishop of Portland cannot assert the First Amendment as a defense to a claim of negligently supervising a pedophile priest.
The Court reviewed the First Amendment law on point and noted that “[t]he Diocese has not asserted that it actually holds to ecclesiastical doctrines concerning sin, penance, forgiveness and redemption that would have prevented or restricted the Bishop from intervening after learning that Melville might be sexually abusing boys, or from otherwise reporting this information to the police or the members of the parish.”
The Cour had this to say about the assertion of the Diocese that “‘the intrinsic logic of any judicial declaration and administration of a standard of care for church oversight of clergy necessarily will involve the [c]ourt deeply in matters of theology and governance:’ We do not accept this logic. It is not self-evident in this case that the application of a duty of due care will cause the Superior Court ‘to probe deeply . . . into the allocation of power within a [hierarchical] church so as to decide . . . religious law [governing church polity]’ in violation of either the First Amendment or Article I, section 3 of the Maine Constitution.” (citations omitted). Read the opinion here.
Immunity from Defective Products Makes Our Nation Safe from Terrorists
The Bush Administration’s solution to most problems is to cut taxes for people who make more than $100,000 per year. The Department of Homeland Security has figured out a different way to make our society safer from the threat of terrorists – extend immunity from suit to companies who make defective products related to the fight against terrorism.
Homeland Security Secretary Michael Chertoff, speaking to the U.S. Chamber of Commerce, said the his department has “not fully succeeded in exploiting” legislation that limits the extent companies can be sued for problematic products.
“I have a great deal of respect and understanding of the importance of our legal system,” said Chertoff, a former federal prosecutor and appeals court judge. “But I also know how important it is that the legal system not create unduly high and burdensome transaction costs that do not allow us to make the kinds of rational decisions we have to make in order to protect ourselves.” Read more here.
Article Questions Need for Revision of Vioxx Study Report
A new article from Bloomberg reports that changes may have to be made to an Annals of Internal Medicine article linking Vioxx to heart problems.
Here is the complete article.
Tuesday, May 3, 2005
Judge to Hold Hearing to Continue First Vioxx Trial
According to a press report, both sides to the nation’s first Vioxx trial have asked the judge to continue the trial date.
The trial is set for May 23, 2005. Both sides asked for a continuance because federal judge Eldon E. Fallon, the judge presiding over the Vioxx MDL, asked that the case be continued so that it would not interfere with the federal litigation. That request is not binding on the state trial judge because state cases are not part of the MDL.
The hearing is set for Tuesday, May 3, 2005.
Veterans’ Judgments Challenged by Bush Administration
Seventeen veterans won judgments against Iraq for being tortured during the first Gulf War. The Bush Administration has filed a brief opposing the right of the veterans to collect these judgments. This post by Dave Lindorff has an interesting take on why the Administration would not be supporting our veterans. I don’t agree with all the statements in this post but I do think that one reason the Bush Administration has taken this anti-veteran position is because it wants to avoid similar suits by Iraqis and the prisioners in Guantanamo Bay.
Bush Torture Tort Reform: Don’t Sue, Don’t Be Sued
Back when the Bush administration filed a brief in federal court opposing the decision to award almost a billion dollars in damages to 17 Americans who had been captured and tortured by Saddam Hussein’s government during the Gulf War, it appeared to be a strange move.
Can a Plaintiff Introduce Evidence That He Paid Medical Bills Out of HIs Own Pocket?
Plaintiff’s vehicle was rear-ended by a vehicle driven by Defendant and Plaintiff was injured. Defendant successfully moved in limine for an order prohibiting Plaintiff from introducing evidence or arguing that he had paid his medical bills out of his own pocket. Defendant hired a doctor to evaluate the plaintiff; that doctor testified that Plaintiff’s “self interest for monetary gain” may be influencing Plaintiff’s complaints of pain.
The jury awarded $20,500, including $15,000 for medical expenses, an amount which was just slightly over one-half of the amount the Plaintiff had paid out of his own pocket for medical bills. The only issue on appeal was whether the trial judge should have excluded the evidence that the Plaintiff paid his own medical bills.
The California Court of Appeals reversed, saying that fact that the Plaintiff paid his own medical bills should have been admitted into evidence. Why? Because that fact helped demonstrate that the bills were reasonable and was helpful to the plaintiff in rebutting the defense that he was malingering. The Court found the exclusion of the evidence prejudicial, reversed the judgment and remanded the case for a new trial. Read the opinion here.
Blue Chipper – Negligent Infliction of Emotional Distress
I have already written about one blue-chip case in the field of negligent infliction of emotional distress. This case is the second decision to advance the law in the field.
In Ramsey v. Beavers, 931 S.W.2d 527 (Tenn. 1996), the court reversed the dismissal of a lawsuit filed man who saw his mother hit by a car. The court allowed him to assert a claim of negligent infliction distress, saying that its “holding today abandons the hypertechnical approach of the zone of danger rule and recognizes that in certain circumstances a plaintiff whose physical safety is not endangered may nonetheless suffer compensable mental injury as a result of injuries to a closely related third person which plaintiff observes sensorily.”
This decision helped Tennessee start down the path of recognizing that pain in the mind and heart is as worthy of protection as a pain in the back. That journey continues.
Tort Law Tidbit – Tape Recordings
Can I tape record a hearing or trial?
Yes. T.C.A. Sec. 20-9-104 gives a lawyer the right to use a tape recorder as an aid in making notes of any public proceedings.
Piercing the Corporate Veil
The Court of Appeals just handed down a new decision that addresses the circumstances under which one may pierce the corporate veil. The case is Boyles v. National Development Company; read the opinon here.
The court affirmed the imputation of liability through the corporation to the person who set it up and ran it. In doing so, the Court re-afffirmed the application of the Allen test. The Allen test says this:
“Factors to be considered in determining whether to disregard the corporate veil include not only whether the entity has been used to work a fraud or injustice in contravention of public policy, but also: (1) whether there was a failure to collect paid in capital; (2) whether the corporation was grossly undercapitalized; (3) the nonissuance of stock certificates; (4) the sole ownership of stock by one individual; (5) the use of the same office or business location; (6) the employment of the same employees or attorneys; (7) the use of the corporation as an instrumentality or business conduit for an individual or another corporation; (8) the diversion of corporate assets by or to a stockholder or other entity to the detriment of creditors, or the manipulation of assets and liabilities in another; (9) the use of the corporation as a subterfuge in illegal transactions; (10) the formation and use of the corporation to transfer to it the existing liability of another person or entity; and (11) the failure to maintain arms length relationships among related entities.”