Wednesday, August 30, 2006

KY Attorney General on the look out for unscrupulous ambulance chasers following the weekend's airline crash in LexingtonKetucky Attorney General Press Release. Federal law adds to the helpful insulation the government has put around accident victims: 49 United States Code Section 1136(g)(2) limits contact by lawyers and imposes a $1000 per day fine for violation: “Unsolicited communications -- In the event of an accident involving an air carrier…no unsolicited communication concerning a potential action for personal injury or wrongful death may be made by an attorney (including any associate, agent, employee, or other representative of an attorney) or any potential party to the litigation to an individual injured in the accident, or to a relative of an individual involved in the accident, before the 45th day following the date of the accident.”

Sunday, August 27, 2006

Eighth Circuit agrees with Nebraska FEderal District Court that Great Plains Communications had to allow tandem circuit access to Western Wireless (Cellular One)WWC License v. Great Plains Comm. 051725P.pdf 08/23/2006 No: 05-1725 and No: 05-1726 District of Nebraska Telecommunications Act of 1996. Local telephone carrier had to allow access to western wireless (cellular One) even when the local carrier sent its calls to an outside tandem circuit. "Local dialing parity" required under the telecommunications act of 1996 is consistent with tandem routing. The Federal District Court properly reversed the the Nebraska Public Service Commission decision to allow when it excused Great Plains from Section 251(b)(3) the local dialing parity obligations. Court of Appeals allows the Neb PSC decisions in setting reciprocal compensation rates and allocation of costs. However the PSC did err when it did not order symmetrical compensation for call that went back and forth between the cellular phone provider and the local phone network as 47 C.F.R. Sec. 51.715 required.
Nebraska Court of Appeals dismisses ineffective counsel proceedings where defendant plead to manslaughter and weapons count otherwise invalid under a subsequent change in the law in State v Pruett 263 Neb. 99, 638 N.W.2d 809 (2002) State v. Drinkwalter, A-04-988, 14 Neb. App. 944 Defendant who plea bargained for a manslaughter charge with an accompanying weapons charge after the Nebraska Supreme court reversed his murder conviction sought post conviction relief claiming ineffective counsel for advising him to plead to charges the Nebraska Supreme Court had held invalid in State v Pruett. Nebraska court of appeals overrules motion for post conviction relief because defendant plead guilty to both the manslaughter and weapons charge before the Nebraska Supreme Court made its Pruett decision which definitively prohibited tying use of a weapon to commit a felony with the underlying crime.s a result of the holding in State v. Burkhardt, 258 Neb. 1050, 607 N.W.2d 512 (2000), and the buttressing effect of the "irresistible" Alford plea bargain, Drinkwalter's claim for postconviction relief to set aside his conviction for use of a weapon to commit a felony on the basis of the Ring-Pruett rule fails. He has clearly waived any such argument. Further the defendant failed to show that counsel's failure to advise him of the effect of Ring or faulty advice on Ring prejudiced his guilty plea, as at the time the Supreme court had not decided Pruett.

Thursday, August 24, 2006

Good news for sufferers of indignities and stress: all awards and settlements for on physical injuries might not be taxableTaxProfBlog While the appeals courts wrestle with nonphysical injuries, such as some worker compensation claimants have brought, the DC Circuit court of appeals has handed them a bone declaring that even nonphysical compensatory damages awards are not gross income. Murphy v. United States, No. 03cv02414 (D.C. Cir. 8/22/06), See § 104(a)(2) 26 USC

Saturday, August 19, 2006

Three corporate decisions from the Nebraska Supreme Court: in a follow up, the supremes rule in favor of dissdent shareholders of the Gilbert Hitchcock Foudation by ordering the Attorney General to step in; two others generally favor of corporate management over dissenting shareholders"Front runner" John Gerrard writes three decisions yesterday on corporate law issuess Friday August 18, 2006 . Pennfield Oil Co. v. Winstrom, S-04-982, 272 Neb. 219: Grandson of company's founder refused to allow founders son to transfer estate held shares to himself. Supreme Court rules that the stock transfer restriction agreements the shareholders in 1960 signed allowed the corporation to refuse transfer and instead redeem the estate held shares, even though this may have been contrary to the intent of the original shareholders. Gilbert & Martha Hitchcock Found. v. Kountze, S-04-1385, 272 Neb. 251: dissenting board members of the Gilbert Hitchcock foundation fought their ouster from the nonprofits board. The supreme court reverses the district court ruling that upheld their ouster because the Nebraska Attorney General was a necessary party to the litigaton. Johnson v. Johnson, S-04-1396, 272 Neb. 263; a dissenting shareholder whom the other shareholders squeezed out of the company tried have the district court dissolve the corporation for which he worked and owned in part. The Supreme Court agrees that since the company was a Delaware corporation and Delaware would notpermit dissolution in these circumstances, the District court was right to dismiss his action.

Tuesday, August 15, 2006

Nebraska Court of Appeals rejects "mode of operation" rule in slip and fall cases when the Plaintiff is unable to prove the defendant's "notice" of the hazardous conditionLenzen v. JG Shopping Ctr. Mgmt. (Not Designated for Permanent Publication) Filed August 15, 2006. No. A-04-1214. Plaintiff lost on summary judgment suit against Lincoln Joint Venture in her sliip and fall injury suit against the mall. Pl alleged she slipped on spilled fluids in the mall near its food court. She could not however prove the Defendant created the condition or had notice of it. Pl counsel argued that Nebraska should adopt a "mode of operation" exception to the slip and fall notice rule and allow her to make a case on the likelihood that falls would occur because of the nature of the business, eg the food court's presence near the mall main area. Nebraska Court of Appeals rejects this theory as contrary to the Nebraska Supreme Court's notice rule, lately defined at Herrera v. Fleming Cos., 265 Neb. 118, 655 N.W.2d 378 (2003), Lenzens argue that the district court erred in failing to adopt the mode-of-operation rule which a minority of other states have adopted. The mode-of-operation rule provides that "the plaintiff is not required to prove notice if the proprietor could reasonably anticipate that hazardous conditions would regularly arise" based on a business' choice of a particular mode of operation. Chiara v. Fry's Food Stores of Arizona, Inc., 152 Ariz. 398, 400, 733 P.2d 283, 285 (1987). The Lenzens contend that the Appellees were charged with knowledge of the hazardous condition under the mode-of-operation rule because the Appellees permitted drinks purchased in the food court to be carried outside the food court area and into the common areas of the Mall and because the Appellees knew that people had slipped and fallen within the Mall. We have already generally described the current state of the law concerning premises liability cases in Nebraska. Among other things, the plaintiff must establish that the defendant created the condition, knew of the condition, or by the exercise of reasonable care should have discovered or known of the condition. The mode-of-operation rule renders immaterial actual or constructive notice of a dangerous condition prior to an accident--something clearly required by the precedent in Nebraska. Eliminating the notice element would make certain store owners insurers of the safety of their patrons and would essentially make those store owners strictly liable for slip-and-fall injuries occurring on their premises

Sunday, August 13, 2006

Why is Justice Gerrard a "frontrunner" with Governor Heinemann for Chief Justice of the Nebraska Supreme Court? The world herald reports that only three of the nine applicants for the Nebraska Supreme court appear to be the front-runners to become Nebraska's new chief justice, several insiders say: Supreme Court Judge John Gerrard, District Judge John Icenogle and U.S. Attorney Mike Heavican. "Lawyers speaking anonymously also said they expect Gov. Dave Heineman likely will feel some pressure to appoint a Republican to the post, given that the seven-member Supreme Court now is composed of Democrats appointed by former Gov. Ben Nelson. " Why would a partisan democrat be on the Governor's short list in the first place? Justice Gerrard has not done Heinemann's administration any favors. Best guess: if Gerrard is up for the Chief Justiceship, one of the Governor's own will take Gerrard's slot representing northeastern Nebraska.

Thursday, August 10, 2006

Follow up: Grand Island veterinarians' civil rights suit against Racing Commission dismissed; Eighth Circuit finds the Racing commission has quasi judicial immunityVan Horn et al v. Oelschlager etal U.S. Court of Appeals Case 053000P.pdf 08/10/06 District of Nebraska District court denied summary judgment based on qualified immunity to state racing commissioners for decision banning licensed veterinarians from treating race horses based on a finding they failed to provide the court with a meaningful statement of the facts. District court is reversed, as commissioners are entitled to absolute, quasi-judicial immunity. The Commission's powers in conducting disciplinary hearings are similar to judicial powers. theCommissioners' actions are likely to result in lawsuits for damages by disappointed parties, as illustrated by the instant lawsuit. sufficient safeguards exist in the regulatory framework to control unconstitutional conduct. Specifically, aggrieved parties may appeal the Commission's decision in state court.board members were entitled to absolute, quasi-judicial immunity byvirtue of the fact that their proceedings were quasi-judicial in nature. Dunham v. Wadley, 195 F.3d 1007, 1010 (8th Cir. 1999).

Tuesday, August 08, 2006

Eighth Circuit agrees that toxicologist did not meet Daubert standards in nuisance case against Tyson/IBP for operating a foulsmelling plant in Dakota City; Court of appeals further refuses to allow an "unjust enrichment" claim against TysonBlog 702 reports the Eighth Circuit refused dubious testimony from an expert to back up a Dakota City resident's claim of nuisance for the meat packing plants noxious odors. I thought thats the reason folks live up there, if not for the good mexican food. Maybe the Nebraska Supreme Court could take some cues from the Eighth Circuit that Daubert is meant to weed out the expert chaff, not let it in. Compare this case Marmo v. Tyson Fresh Meats, Inc., No. 05-1906 (8th Cir. Aug. 3, 2006) (Arnold, Smith, & Magnuson, JJ.) with Epp v. Lauby, (complainers disease fibromyalgia). The Court of Appeals also gets to reject a more novel (frivolous) argument from the Plaintiff that her nuisance claim is also an unjust enrichment claim: Marmo admits that neither the Nebraska Supreme Court nor the Nebraska Legislature has recognized an unjust enrichment claim based on a pollution easement theory, but nonetheless argues that Nebraska case law supports her claim. Nebraska courts have recognized an unjust enrichment claim to allow a purchaser who made valuable improvements to a property to recover the reasonable value of the improvement. See McIntosh v. Borchers, 266 N.W.2d 200, 203 (Neb. 1978). They have also recognized an unjust enrichment claim to require payment for land use when an individual disavowed an obligation to pay for the use. Bush, 173 N.W.2d at 369. However, no Nebraska state court has recognized a negative unjust enrichment claim based on the pollution easement theory, which seeks disgorgement of profits unjustly saved by a polluter.4 Rather, Nebraska courts focus on how the pollution injures the plaintiff, and that claim is properly brought under the law of nuisance. See Bargmann v. Soll Oil Co., 574 N.W.2d 478, 486 (Neb. 1998); Karpisek v. Cather & Sons Constr., Inc., 117 N.W.2d 322, 326-27 (Neb. 1962). There is no indication that the Nebraska Supreme Court would recognize an unjust enrichment claim on the facts of this case. Thus, the proposed amendment would have been futile, and the district court did not err in denying Marmo leave to amend the complaint.

Friday, August 04, 2006

Nebraska Supreme Court will consider Daubert challenges to expert testimony for retrial of arson/murder case when first trial took place before date of Nebraska Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001)decision even though Nebraska Supreme Court had on first appeal rejected the Defendant's ; Most of fire experts testimony allowed under Daubert standardsState of Nebraska, v. Davlin, (Davlin II) 272 Neb. 139 Filed August 4, 2006. No. S-05-547. The law-of-the-case doctrine does not bar consideration of the expert testimony issues even though the Supreme Court already ruled on the admissibility of the fire experts in Davlin I,. Because an expert's testimony and opinions may vary from one trial to the next, the law-of-the-case doctrine does not necessarily preclude a foundational challenge to an expert's testimony in a retrial. Furthermore Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), adopting the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993),ordered that Daubert apply prospectively for trials commencing on or after October 1, 2001. The Daubert/Schafersman standards were not applicable in Davlin's first trial which commenced in March 2000, Davlin I, 263 Neb. 283, 639 N.W.2d 631 (2002), but were applicable in the retrial which commenced in January 2005. The Court may consider a Defendant's Daubert/Schafersman challenge to the expert testimony presented at retrial but sustains the trial court's findings.