Nebraska supreme court allows new trial for realtor injured when he fell off a wooden walkway leading from a home under constructionPachunka v. Rogers Constr., S-04-1470, 271 Neb. 950HTML The Plaintiff entered a partially constructed model home to inspect it before show it to buyers. He fell off the wooden ramp when exiting. The trial court allowed the contractor's attorneys to submit an assumption of risk instruction. The jury gave a general defense verdict without considering comparative negligence or assumption of risk. Supreme Court reverses: Assumption of risk requires plaintiff (1) knew of the specific danger, (2) understood the danger, and (3) voluntarily exposed himself or herself to the danger that proximately caused the damage. Pleiss v. Barnes, 260 Neb. 770, 619 N.W.2d 825 (2000). See, also, Neb. Rev. Stat. § 25-21,185.12 (Reissue 1995). The defendant must plead and prove assumption of the risk. Everts v. Hardcopf-Bickley, 257 Neb. 151, 595 N.W.2d 911 (1999). "Pachunka asserts that Rogers Construction failed to establish that his use of the ramp was voluntary because he was given no reasonable alternative course to using the ramp. We agree." QUERY: Is the absence of safe alternatives to the risky pathway also something the party relying on the assumption of risk defense must prove? Also the assumption of risk instruction was not harmless error, because the jury verdict directing forms did not include that considered the issue. By returning the third verdict form (finding no liability for the Defendant), it is clear that the jury never reached the issue of contributory negligence. However, the same cannot be said with regard to the issue of assumption of risk. Because the jury was not presented with a separate verdict form addressing the issue of assumption of risk, it is impossible for us to tell whether or not the jury reached that issue.

Flashback for Nebraska attorney David Domina; he lost the impeachment case against Attorney General Paul Douglas but manages to take down Regent David HergertNebraska Legislature on behalf of the State v. Hergert, S-06-425, 271 Neb. 976HTML Anti-Hergert pundits, in this case almost the entire establishment media in Nebraska are lauding the Legislature's counsel David Domina's role in removing elected regent David Hergert after the unanimous Nebraska supreme Court decision last week. But Domina was quite familiar with impeachment when he was the Unicameral's counsel for the commonwealth investigation in 1984. It appears that his possibly youthful mistakes and lack of aggressiveness allowed the more cunning Attorney General Paul Douglas to get off the hook for his role in the commonwealth failure in November 1983: State of Nebraska STATE OF NEBRASKA, PLAINTIFF, v. PAUL L. DOUGLAS, ATTORNEY GENERAL OF THE STATE OF NEBRASKA, DEFENDANT 349 N.W.2d 870, 217 Neb. 199 (1984) "

Complaint is made that Douglas never provided access to his tax returns. Yet, during questioning of Douglas, copies of Douglas' federal income tax returns were at hand. (Commonwealth Committee attorneys Miller and Domina) asked, "Could (we) have copies of those returns, please?" and he answered, "I think you indicated that you wanted to see it and I have no problem in showing you this." The questioner replied, "All right. That's fine." Commonwealth Committee counsel Miller testified: "neither I nor David ever had physical possession of those returns. They never left the possession of Paul Douglas. "We cannot conclude from this that Douglas withheld pertinent information on his tax returns in a procedure agreed to by his questioner. Finally, according to Douglas in his statement to the legislative committee, introduced into evidence by the State, he had by that time turned over his "entire income tax returns from '75 through '82" to the committee's special counsel."

Still taking down a grain mill elevator owner is probably easier than an accomplished attorney and attorney general of the state.

It's getting hard to find good law clerks for activist judges department: Eighth Circuit points out citation error in Judge Bataillon's Citizen for Equal Protection v Bruning decision while reversing this laughingstock of a juristCitizens for Equal Protection v. John Bruning 052604P.pdf 07/14/06 The good for gays and the victims of tyrannical sentencing judges the Honorable Joe Bataillon in throwing everything at the Nebraska marriage protection amendment(Art1 Section 29 ) but the kitchen sink appears to have incorrectly cited the constitutions bill of attainder provision, as the fundamentalist right wing Eighth Circuit Court of Appeals noted: "The district court also concluded “that Section 29 violates the Bill of Attainder( Art. I, § 9, cl. 3) Clause by singling out gays and lesbians for legislative punishment.” 368 F. Supp. 2d at 1005.4." Footnote 4: (District Judge Bataillon) cited Art. I, § 9, cl. 3, of the Constitution, a section that applies only to Congress. We assume the court meant to cite Art. I, § 10, which bars the Statesfrom passing bills of attainder. The two provisions are construed identically. See Crain v. City of Mountain Home, 611 F.2d 726, 728-29 (8th Cir. 1979); Kerr-McGee Chem. Corp. v. Edgar, 837 F. Supp. 927, 934 n.6 (N.D. Ill. 1993).

Tougher penalties for DWI and related crimes go into effect Friday '>New DUI penalties aim at worst cases The Nebraska Legislature last session significantly increased the potential punishment for drunken drivers. The penalties for driving drunk, and driving really drunk, increase when the law goes into effect Friday (omaha.com) LB925 toughens penalties for leaving the scene of an accident; causing an injury accident while intoxicated and for those caught driving at over .15% BAC. Also the statute enhances penalties for defendants who get caught again for DWI while they had pending cases. Sec28-306(3)(b): If the proximate cause of the death of another is the operation of a motor vehicle in violation of section 60-6,196 or 60-6,197.06, motor vehicle homicide is a Class III felony. 28-306(3)(c) If the proximate cause of the death of another is the operation of a motor vehicle in violation of section 60-6,196 or 60-6,197.06, motor vehicle homicide is a Class II felony if the defendant has a prior conviction for a violation of section 60-6,196 or 60-6,197.06, under a city or village ordinance enacted in conformance with section 60-6,196, or under a law of another state if, at the time of the conviction under the law of such other state, the offense for which the defendant was convicted would have been a violation of section 60-6,196. 60-6,197.03 Any person convicted of a violation of section 60-6,196 or 60-6,197 shall be punished as follows: (2) If such person has not had a prior conviction and, as part of the current violation, had a concentration of fifteen-hundredths of one gram or more by weight of alcohol per one hundred milliliters of his or her blood or fifteen-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his or her breath, such person shall be guilty of a Class W misdemeanor, and the court shall, as part of the judgment of conviction, revoke the operator’s license of such person for a period of one year from the date ordered by the court. Such revocation shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked. If the court places such person on probation or suspends the sentence for any reason, the court shall, as one of the conditions of probation or sentence suspension, order that the operator’s license of such person be revoked or impounded for a period of one year from the date ordered by the court unless otherwise authorized by an order issued pursuant to section 60-6,211.05, and such order of probation or sentence suspension shall also include, as conditions, the payment of a five-hundred-dollar fine and either confinement in the city or county jail for two days or the imposition of not less than one hundred twenty hours of community service; 60-6,197.08 Sec. 14. Notwithstanding the provisions of section 60-498.02 or 60-6,197.03, a person who commits a violation punishable under subdivision (3)(b) or (c) of section 28-306 or a violation of section 60-6,196, 60-6,197, or 60-6,198 while participating in criminal proceedings for a violation of section 60-6,196, 60-6,197, or 60-6,198, or a city or village ordinance enacted in accordance with section 60-6,196 or 60-6,197, or a law of another state if, at the time of the violation under the law of such other state, the offense for which the person was charged would have been a violation of section 60-6,197, shall not be eligible to receive a sentence of probation, a suspended sentence, or an employment driving permit authorized under subsection (2) of section 60-498.02 for either violation committed in this state.

Nebraska motor vehicle guest statute limiting liability for related guest passengers is (barely) constitutional: Nebraska Supreme CourtLe v Lautrup 271 Neb. 931 Filed July 7, 2006. No. S-04-743. Granddaughter sued grandfather for motor vehicle accident in which she was a passenger. The Nebraska Supreme Court, J. Miller Lerman for the majority rejected the plaintiff's challenge to the constitutionality of § 25-21,237 sustaining the defendant's district court demurrer based on simple negligence. The action went to trial on the sole remaining theory of gross negligence, resulting in a defense verdict. "We conclude that the district court did not err in rejecting the Les' challenge to the constitutionality of § 25-21,237." Dissenting Justices Gerrard, McCormack and CJ Hendry argued that § 25-21,237 is not rationally related to a legitimate purpose because "persons who are of a mindset to engage in collusion are unlikely find the guest statute discouraging. Justice Gerrard also might have mentioned that § 25-21,237 does not apply to relatives involved in accidents when they are not passengers in the same automobile. to lie. Thus, Justice Gerrard finds the "collusion prevention" rationale is hardly a rational basis for a blanket provision barring passengers from bringing general negligence claims against drivers to whom they are related. Maybe Justice Gerrard doesn't read the news around the country or doesn't "google" the armchair legislator concepts he cooks up. If the good Justice Gerrard, our own Roscoe Pound had bothered he might have found these gems on family members' involvement in staged auto accidents: Virginia: " Organized insurance crime rings, for example, operate widely in the state’s expanding urban areas. Many rings specialize in staging auto accidents that scam large sums of insurance money, for example. These rings are hard to crack because they’re complex, well-hidden, and often run by family members who closely protect each other’s identities." Albany, New York: "A boxing champion and six members of his family have been indicted on charges of enterprise corruption stemming from what Albany County prosecutors say is a scheme in which they staged dozens of automobile accidents and collected thousands of dollars from false insurance claims." Now maybe Justice Gerrard is on to something: many of these staged accident rings involve immigrants whose loyalty to family supersedes the law. We couldn't legislate against immigrants could we? So we discriminate against citizens who might deserve recourse in a case like Friday's.

Sarpy county district court erred when it reduced 3rd offense dwi defendant's jail time from 90 to 10 days as part of her probation order but Defendant still only needs to serve 10 days because State appealed under 23-2315.01 which allows appellate court to make prospective rulings of law applicable to future casesState v. Vasquez, S-05-1019, 271 Neb. 906 HTML Sarpy County Court sentenced 3rd offense drunk driving defendant to probation but added on 90 days in jail, according to § 60--6,197.03(3) (Reissue 2004. The District Court modified the sentence to 10 days in jail. The State took exception under 29-2315.01. § 29-2262(2)(b) (Cum. Supp. 2002 allows the court to sentence a probationer to additional jail time for up to 90 days. 60-6,197.03(3) provides a floor on the jail time a defendant on probation will get for 3rd offense dwi. The supreme court agrees that the District court was wrong to reduce the defendant's sentence to 10 days, it says no one is able to reinstate the stiffer sentence because the State did not appeal the sentence as excessively lenient; the state may only appeal felony sentences. Since the Defendant had been placed in jeopardy, § 29-2316 (Cum. Supp. 2004) this excessively lenient sentence for a problem drinker stands but future drunks wont havethe same opportunities to walk.

Arrest warrant for escaped inmate from Nebraska Department of corrections does not permit police to search home where escaped convict was hiding out: Eighth Circuit Court of Appeals reverses convictionDecision of the Day Blog United States v. Tylan Lucas 052165P.pdf 06/16/06 District of Nebraska Under a Nebraska statute, the Director of Corrections has authority to issue arrest warrants for escaped inmates, Neb. Rev. Stat. § 83-173(11). In this case, officers used one such warrant to arrest defendant Tylan Lucas in his home. During the course of the arrest, officers found evidence that led to Lucas’s further convictions for drug and gun charges. Lucas moved to suppress the evidence on the grounds that the arrest warrant was invalid, but the district court denied his motion. EIGHTH CIRCUIT REVERSES. An arrest warrant issued by the Nebraska Director of Correctional Services is not a warrant issued by a neutral and detached magistrate capable of determining whether probable cause exists for the requested arrest, and defendant's arrest pursuant to the warrant was invalid; Leon good faith exceptions does not apply when the indiviDual who issued the warrant is not neutral and detached.

Nebraska Supreme Court rules that insurers could avoid paying for pollution costs when dumping occurred over a long period of time because prolonged dumping was not "sudden and accidental;" Court however also holds that cause of action for failure to defend a customer does not accrue until the customer receives the adverse judgmentDutton-Lainson Co. v. Continental Ins. Co., S-04-1223, 271 Neb. 810 The "sudden and accidental" exception to the pollution exclusion clause expressed conjunctive conditions for insurance coverage.The discharges leading to the pollution in issue in this case were not "sudden."Therefore, the District Court properly gave summary judgment as to the insurers whose policies contained pollution clauses with the suddeness/accidental exceptions. As to those insurers who did notput in pollution exceptions to theirpolicies, but still contended the statute of limitations on a breach for failing to defend their customer, the supreme court found the issue of when the statute of limitations begins to run for breach of contract on a duty to defend is an issue of first impression for this court. The supreme court adopts the clear majority view that a cause of action on an insurer's duty to defend does not run until the underlying action is resolved against the insured. Accordingly, we reverse the district court's determination that Dutton's claims were barred by the statute of limitations. SUMMARY JUDGMENT ON POLLUTION EXCEPTIONS AFFIRMED; SUMMARY JUDGMENT ON STATUTE OFLIMITATIONS REVERSED.

Nebraska Supreme Court sends disputed estate tax refund back to county court n re Estate of Eriksen, S-04-966, 271 Neb. 806 Heir of deceased farmer exercised option in the will to purchase the farm and the estate sought special valuation elections 2032A and deductions allowed to estates when the relatives continue to farm the property 2057. The Plaintiff sought those elections and also the entire refund according to 77-2108 apportionment statute. The county court ruled against him. The Nebraska Supreme Court reverses holding that the will did not direct apportionment of taxes and refunds if any. Also the Court must consider the application of 77-2108 after the estate pays its taxes; the IRS denied the 2057 claim as well. "Eriksen next contends that under § 77-2108, he should be allocated the tax savings caused by his elections. But the county court did not decide issues regarding apportionment under § 77-2108. Further, at oral arguments, the parties agreed that the residuary of the estate had not been distributed and informed the court that the § 2057 election has now been denied by the Internal Revenue Service. Until the estate taxes have been finally determined, § 77-2108 cannot be applied. In addition, a determination about apportionment involves a number of issues that could require additional factual findings. The county court did not address apportionment under § 77-2108 and did not make specific factual findings, because it determined that the will controlled instead of the statute. An appellate court will not consider an issue on appeal that was not passed upon by the trial court. In re Guardianship & Conservatorship of Larson, 270 Neb. 837, 708 N.W.2d 262 (2006). Accordingly, we do not address the apportionment under § 77-2108 and remand the matter for that determination by the county court when the final amount of federal estate taxes has been determined. Likewise, the county court did not address Eriksen's unjust enrichment arguments, and an application of § 77-2108 could potentially affect those claims. Accordingly, we also do not address unjust enrichment and remand the matter for determination by the county court.

Injured workers subject to the Nebraska Worker Compensation Act who win damage suits against third party tortfeasors may not require that the the settlement or judgment "make them whole" before the subrogated worker compensation carrier recovers any of its compensation paymentsTurco v. Schuning, S-05-068, 271 Neb. 770June 16, 2006. Plaintiff severely injured in automobile accident while doing his sales job settled an automobile liability claim for $250K; worker comp had paid $145K for disability and medical care. The Plaintiff also had a claim for $100K against his wife's underinsured motorist insurance, which must not have been part of this case. The District Court in a 48-118.04 (2005 revision) hearing determined the Plaintiff's damages to exceed $600K. Assuming that the equitable "made whole" rule applied, the District Court did not allow the worker comp insurer any subrogation. Nebraska Supreme Court reverses holding that the statute's command for a fair and equitable distribution meant just that without incorporating any "made whole rule." Section 48-118(.04) does not prescribe an exact formula for the trial court to apply when making a fair and equitable distribution, and we will not read such formula into the statute. It is not within the province of this court to read a meaning into a statute that is not there. See Trieweiler v. Sears, 268 Neb. 952, 689 N.W.2d 807 (2004). Instead, under the plain language of § 48-118(.04), the trial court shall make a fair and equitable distribution. The distribution is left to the court's discretion. We determine that the court erred when it concluded that it was required to apply the "made whole" doctrine.

Defendant convicted of stealing an ATM loses appeal challenging constitutionality of restitution order; loses ineffective counsel claim in Nebraska Supreme Court in another wasteful pointless appeal the Defendant claims he told his lawyer to file.State v. Moyer, S-05-079, 271 Neb. 776 HTML Defendant and two others broke into a Bennett convenience store and stole the ATM. They opened the machine with a blowtorch and stole $10000. Defendant plead guilty and was sentence to prison and ordered to pay full restitution. Defendant's counsel did not appeal the sentence and later the District Court ordered a new direct appeal, assuming the Defendant had asked for an appeal. Defendant's new counsel claimed Neb. Rev. Stat. §§ 29-2280 to 29-2289 (Reissue 1995) were unconstitutional because violate Neb. Const. art. VII, § 5(1). the Nebraska criminal restitution statutes challenged by Moyer do not violate Neb. Const. art. VII, § 5. Section 29-2280 states, in part: "A sentencing court may order the defendant to make restitution for the actual physical injury or property damage or loss sustained by the victim as a direct result of the offense for which the defendant has been convicted." "Although an order to make restitution is punitive as to the wrongdoer, it is limited to the actual loss sustained by the victim and is thus compensatory or remedial in nature. Accordingly, we hold that restitution, ordered in an amount not exceeding the actual damage sustained by the victim, pursuant to §29-2280 , is not a penalty within the meaning of Neb. Const. art. VII, § 5, and is constitutional." Post conviction relief denied.The volume of these post conviction motions seeking direct appeals from guilty pleas quite annoys me. This District Judge seems to have not read Roe v Flores-Ortega, the Scotus decision that restricts the free appeal hindsight favoring judges were giving defendants. The better practice is for counsel routinely to consult with the defendant about an appeal. Counsel has a constitutionally imposed duty to consult, however, only when there is reason to think either (1) that a rational defendant would want to appeal, or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known. One highly relevant factor will be whether the conviction follows a trial or a guilty plea, because a plea both reduces the scope of potentially appealable issues and may indicate that the defendant seeks an end to judicial proceedings. Even then, a court must consider such factors as whether the defendant received the sentence bargained for and whether the plea expressly reserved or waived some or all appeal rights.

Lincoln cardiologist's ex wife loses appeal of defense verdict that was in favor of her former divorce attorney; Nebraska Court of Appeals (unpublished opinion) agrees that Lancaster County District Court properly overruled her (Plaintiff's) motion for a directed verdictCaudill v. Roberts, A-04-1314; Ex wife of prominent Lincoln cardiologist Christopher Caudill sued her divorce counsel for negligently allowing her physician husband to keep several limited partnerships while agreeing that their value would be a negative $400K. After the negative partnership value, the parties split a $10 million marital estate roughly in half. After the divorce doctor's exwife contended the attorney negligently investigated the value of the property and the tax consequences. The district court did rule on partial summary judgment that in the divorce the parties should have considered the tax consequences of splitting the partnerships only if the divorce would have forced their sale, citing Schuman v. Schuman, 265 Neb. 459, 658 N.W.2d 30 (2003), but did not rule on the defendant's liability. The court overruled the plaintiff's motion for directed verdict and the jury found for the defendant attorneys. Court of appeals affirms Various witnesses gave conflicting opinions as to the potential value or negative value of the partnerships, and what actions the wife as succeeding owner would have to take to preserve them. "Roberts testified that he has had previous cases dealing with limited partnerships and that they have too many downside risks to take them in a divorce. Roberts testified that he knew the limited partnerships were involved in real estate and that he discussed with Nancy doing an appraisal but that it would be expensive and that nothing may come out of it. He suggested to Nancy that she and Christopher should split the limited partnerships "50/50." He testified that he told her they were risky and that there could come a time when she may have to put money into them. (We digress to recall that at oral argument, Nancy's counsel argued that a limited partner never is obligated for further capital contributions--but there was no evidence at trial to support such claim, nor was there any evidence to dispute Roberts' testimony as to the risk of further contributions to these particular limited partnerships.) Roberts testified that Nancy told him that she did not want any risk. He testified that if they had gone to trial over the issue, she would not be happy if she got the limited partnerships; thus, he told her that settlement was the best option. Roberts testified that in attempting to agree to a property settlement, the parties had to do some "give and take." It is noteworthy that Christopher's counsel testified that if the negative tax consequences of the partnerships were not included in the property division, he would have advised his client to try this issue; and we note that although there was a settlement, a number of unsettled issues were tried. Our brief recounting of the foregoing key testimony clearly reveals evidence upon which the jury could have concluded that Roberts did not violate the standard of care--remembering that on a motion for a directed verdict every controverted fact must be resolved in favor of Roberts. Galter's testimony was that Roberts met the standard of care, and by itself, it would prevent the trial court's entering a direction that Roberts had breached the standard of care with respect to his handling of the limited partnerships and advice to his client. Consequently, the district court did not commit error in denying the motion for a directed verdict. AFFIRMED

Nebraska Supreme Court reverses mandamus order from the Adams County District Court directing the rezoning of farmland for residential development State ex rel. Musil v. Woodman, 271 Neb. 692 Filed June 9, 2006. No. S-04-1420. Owners of recently purchased farmground in rural Adams County sought rezoning for residential development. On a motion at one meeting of the Adams County Board the Board approved revising the County zoning plan on a split vote. However later the Board refused to adopt these actions by resolution. The District Court for Adams County considered the approving motions sufficient to require the Board to proceed with rezoning. The Supreme Court reverses finding no clear obligation for the Board to follow its motions when its rules required a resolution.Under § 23-114(1)(d) and art. 10, § 1003.02, the rezoning action Musil sought in the instant case was required to be taken up as a "resolution." Based on the foregoing, we agree with Barrows and the Board that the motions of June 24, 2003, were of a different character than the resolutions of August 19 and that the former were merely an expression of possible future action favorable to Musil, whereas the latter were in fact a rejection of Musil's petition for rezoning. Contrary to Musil's assertion and the conclusion of the district court, the mere motions of June 24, 2003, were not sufficient to require that Musil's rezoning request be implemented, and, on the contrary, the resolutions rejected on August 19 denied Musil's request for rezoning. Musil did not show clearly and conclusively that she was entitled to the relief of rezoning that she sought, and the Board was not legally obligated to rezone. See, State ex rel. Jacob v. Bohn, ante p. 424, 711 N.W.2d 884 (2006); Ways v. Shively, 264 Neb. 250, 646 N.W.2d 621 (2002). The district court erred in issuing the writ of mandamus directing the rezoning, and we reverse the order issuing the writ.

Nebraska Supreme Court modifies April opinion that held administrative revocation of drivers' licenses for refusing alcohol tests were constitutionalKenley v Neth (Neth II) 271 Neb. 683 Filed June 9, 2006. Nos. S-04-1186, S-05-230. Supplemental Opinion; Kenley v Neth (Neth I) 271 Neb. 402 Filed April 14, 2006. Nos. S-04-1186, S-05-230. reversed the Clay County District Court, which had ruled the administrative revocation of the licenses of drivers who refused to take tests for blood alcohol (§ 60-498.01 )violated the due process and equal protection clauses of the Nebraska and US Constitutions. The District Court reasoned that because if drivers lost drivers licenses for failing tests but could win back their drivers licenses if they later won acquittal of accompanying criminal charges§ 60-498.02(4) , the refusing drivers should also have that right. The Supreme Court in Kenley I directed the District Court to uphold Kenley's suspension. Kenley II corrects this error and requires the District Court to review the case on its merits. With respect to Kenley, in her appeal to the district court, she assigned that there was no competent evidence to support the revocation of her driver's license. Due to its other holdings, the district court did not reach this issue. We remand the cause to the district court for further proceedings consistent with this opinion with directions to determine whether there was competent evidence to support the revocation of Kenley's driver's license. In accordance with the above, we also withdraw the directive language with respect to case No. S-04-1186, id. at 416, 712 N.W.2d at 264, and substitute the following: Cause in No. S-04-1186 remanded for further proceedings.

More result oriented and haphazard Daubert jurisprudence from the Nebraska Supreme Court; Court reverses Lancaster County district Court judge Witthof's decision to exclude "expert" opinion stating auto accident caused fibromyalgia symptomsEpp v. Lauby, 271 Neb. 640 Filed June 2, 2006. No. S-04-990. This time the Supremes hand one to the very worthy trial lawyers and their hypochondriac clients by reversing Judge Witthof's decision to exclude testimony from professional plaintiffs experts that Plaintiff Epp suffered total disability from an automobile accident that caused her fibromyalgia symptoms. Earlier researchers have described fibromyalgia as a psychosomatic disorder. Although the Supreme Court recognized that many medical researchers find the trauma-fibromyalgia connection to be junk science, it was an "abuse of discretion" for the trial court to agree with those researchers, because the medical expert testifying in favor of the fibro sufferer did a good job of eliminating other causes for the fibro symptoms. Daubert on the web notes other circuit cases from the 5th and 2nd Circuits denying plaintiff friendly fibromyalgia opinions:

Vargas v. Lee, 317 F.3d 498 (5th Cir. 2003). In suit against truck driver and trucking company, plaintiff offers Dr. Edward M. Gaber, who opines that plaintiff's fibromyalgia was caused by trauma sustained in accident. District court admits testimony and jury awards damages to plaintiff. Admissibility reversed.

Washburn v. Merck & Co., No. 99-9121 (2d Cir. May 1, 2000) (unpublished). Woman develops arthropathy, chronic pain syndrome, and fibromyalgia after receiving rubella vaccination. In suit against vaccine manufacturer, woman offers three physicians who opine that vaccination caused symptoms. District court excludes testimony from all three and awards summary judgment. Exclusion affirmed.

Lincoln area specialty hosptials Nebraska Heart Institute and Lincoln Surgical Hospital opened before Federal Government imposed moratorium on medicare/medicaid reimbursements for physician referrals to "whole hospitals" they owned; moratorium has expired, but Fed CMS Agency has not allowed new specialty hospitalsPhysician-Owned Specialty Hospitals Dodge a Bullet; Duane Morris Law Firm. The Medicare Prescription Drug, Improvement and Modernization Act of 2003 ("MMA") imposed an 18 month moratorium from December 2003 to June 2005, on physicians' referring their patients to a cardiac, orthopedic or surgical specialty hospital in which they had an ownership or investment interest. The moratorium did not apply to hospitals that were in operation or "under development" as of November 18, 2003. Congress allowed the moratorium to expire. Legislation that Senators Grassley and Baucus introduced as the "Hospital Fair Competition Act of 2005" would have permanently prohibited specialty hospitals passed the Senate but went nowhere in the House. The Deficit Reduction Act of 2005 requires HHS (through CMS) to develop a "strategic and implementing plan" regarding physician investment in specialty hospitals. For now area specialty hospitals with their high profit margins are safe.

Incident exceptions such as the Snow, ice,weather condition exceptions to the Nebraska Political Subdivision Tort Claim Act limit the Acts waiver of sovereign immunity; accident that occurred while Omaha School District van driver collided with vehicle on rain slickened street was still subject to the filing requirements of the political subdivision tort claim actWise v. Omaha Public Schools, 271 Neb. May 26, 2006. No. S-05-491. Exceptions to the PSTCA are affirmative defenses, and inappropriate for Rule 12b motion; however court will treat motion as motion for summary judgmentThe issue of noncompliance with the notice provisions of the PSTCA must be raised as an affirmative defense specifically expressing the plaintiff's noncompliance. Kuchar v. Krings, 248 Neb. 995, 540 N.W.2d 582 (1995). It is not one of the enumerated defenses which can be asserted by a motion to dismiss pursuant to rule 12(b), as OPS and Kelley incorrectly sought to do in this case. Supreme Court affirms summary judgment as Plaintiff failed to comply with political subdivision tort claim act filing requirements. Section 13-908, which provides that in suits brought pursuant to the PSTCA, "the political subdivision shall be liable in the same manner . . . as a private individual under like circumstances," sets forth a general waiver of sovereign immunity subject to certain limited exceptions stated in § 13-910. McCormick v. City of Norfolk, 263 Neb. 693, 641 N.W.2d 638 (2002) The exceptions set forth in § 13-910 are affirmative sovereign immunity defenses to claims brought pursuant to the PSTCA. Harris v. Omaha Housing Auth., 269 Neb. 981, 698 N.W.2d 58 (2005). If a claim falls within one of the exceptions stated in § 13-910, it fails based upon sovereign immunity. Even if § 13-910(10) were applicable, it would not provide a basis for a claim against OPS or Kelley independent of the PSTCA. In Harris v. Omaha Housing Authority, supra, we specifically rejected an argument that the requirements of the PSTCA do not apply to claims that fall within one or more of the exceptions stated in § 13-910. We reasoned that because the exceptions were affirmative sovereign immunity defenses to claims brought pursuant to the PSTCA, a finding that a claim fell within one or more of the exceptions would require dismissal of the complaint.

Nebraska Supreme Court vacates district court contempt order in trade secret case that included additional equitable remedies and attorney fees because contempt finding did not state a sanction for non-compliance and the lack of a sanction did not allow habeas relief to defendantSmeal Fire Apparatus Co. v. Kreikemeier, S-03-354, S-05-407, 271 Neb.616HTML In trade secret case the District Court found the defendant in contempt for continuing to use the plaintiff's trade secrets. The District Court fashioned a equitable remedies and awarded attorney fees and costs to the Plaintiff. The Nebraska Court of Appeals dismissed the appeal with respect to the district court's finding of contempt, but nonetheless affirmed the allowance of $73,500 in attorney fees and costs. The Defendants also sought habeas corpus in the Supreme Court to challenge the District Court's contempt finding. The Supreme Court orders the appeals dismissed altogether as the district court lacked jurisdiction to order equitable relief as a condition to purging its finding of contempt and that the remaining condition of the purge plan was not accompanied by a threatened sanction and was not reviewable on appeal. For those reasons, the Supreme Court vacates the equitable elements of the purge plan, vacates the related award of fees and costs, and dismisses the appeal in its entirety. We vacate those aspects of the district court's order affording equitable relief to Smeal, because they exceed the district court's jurisdiction in a contempt action. The remaining condition of the purge plan, payment of attorney fees and costs, is not subject to a sanction for noncompliance and is not appealable, but we also vacate the award of attorney fees and costs, as it is inextricable from the court's order affording equitable relief.

Bankruptcy Code 11 usc 523(a)1(B) (old law) may allow debtor to discharge tax debt even if debtor filed returns only after IRS had assessed the debtor's tax liability on its own; Eighth Circuit contributes to circuit court split rulingsDecision of the Day blog. The Eighth Circuit Court of Appeals rules that the IRS assessment before the debtor filed his tardy returns did not automatically disqualify the debtor from discharging otherwise eligible tax debts. Colsen v. Internal Revenue Service, 05-2476 (8th Cir., May 4, 2006). The Seventh Court, J. Posner held to the contrary. J. Easterbrook dissented in that case, taking the 8th Circuit's position.

Students who attend school full time but on working adult schedules may claim unemployment compensation even though § 48-628(7)RRS Neb. disqualifies full time students Lecuona v. Cramer, 14 Neb. App. 770 Filed May 23, 2006. No. A-05-822. Unemployment claimant enrolled for full time courses at Bellevue University that held classes on Saturdays. The Department of Labor denied unemployment comp because the claimant was enrolled full time. The Court of Appeals disagrees and rules that the full time student disqualification applies to workers who are attending classes during regular working hours. In this case, Cramer attended classes only on Saturdays from 8 a.m. to 12 p.m. We find that unlike a more traditional course of study, wherein students registered for 12 or more credit hours attend classes held throughout the week during the day, Cramer's particular educational program allowed her to be "available for work." In fact, the Bellevue catalog states that the accelerated programs are offered to "working adult students," and the fact that classes are held on Saturday mornings certainly seems to accommodate a full-time job. Cramer herself testified that she was seeking full-time employment and that she was willing to work full time. Cramer would not have had to place restrictions on her job search because of her status as a student. Nor did Cramer's work appear to be subordinate to and geared around her enrollment in the accelerated program. Cramer would have been able to work a full-time job with her school commitments.

In second do-over this year, Nebraska Supreme Court grants rehearing from a McCormack decision and withdraws significant part of ruling: Supremes find in favor or Bergan Mercy Hospital's peer review immunity defense in dispute with suspended surgeon. McLeay v. Bergan Mercy Health Sys., 271 Neb. 602 Filed May 19, 2006. No. S-04-117. McLeay II. Appeal from the District Court for Douglas County: Joseph S. Troia, Judge. On motion for rehearing, reargument granted. See 270 Neb. 693, 708 N.W.2d 592 (2005) McLeay I, for original opinion. Original opinion withdrawn. Affirmed in part, and in part reversed and remanded for further proceedings. Earlier this year J. Stephan authored the Court's opinion in McCray II that allowed sex offenders who had obtained expunged convictions reconsideration for lower sex offender risk category scoring, after J. McCormack for the Court ruled that the sex offender would not get reconsideration. This week the Court J. Connolly withdraws J. McCormack's earlier opinion that Bergan Mercy could not win on summary judgment with its peer review immunity defense against a suspended surgeon who claimed its findings were unreasonable.

Nebraska Court of Appeals finds that Sarpy County District Court properly found disputed boundary line that possessors claimed by mutual recognition and acquiescence Campagna v. Higday, 14 Neb. App. 749 Filed May 16, 2006. No. A-04-1251. To claim a boundary by acquiescence, both parties must have knowledge of the existence of a line as the boundary, and therefore, the mere establishing of a line by one party and the taking by that party of possession up to that line is insufficient. In order to claim a boundary line by acquiescence, both parties must have knowledge of the existence of a line as the boundary, and therefore, the mere establishing of a line by one party and the taking by that party of possession up to that line is insufficient. Kraft v. Mettenbrink, supra. As in adverse possession cases, the burden of proof is preponderance of the evidence for mutual recognition and acquiescence claims. See Nye v. Fire Group Partnership, 265 Neb. 438, 657 N.W.2d 220 (2003). The fence separating the properties was the boundary line by the evidence the owners offered that the neighboring owner accepted it.

Alabama trial lawyer who won millions from class action settlement lost almost all of it day trading but convinces the US Tax Court to allow him to set off his attorney fees with all his losses TAX COURT GIVES CLASS-ACTION MAGNATE AND DAY-TRADER A MULLIGAN Alabama class action plaintiff's attorney Lanny Vines won millions in 1999 from a class action settlement. He closed his office and started full time day trading. He promptly lost most of his money when the Nasdaq tanked in 2000. He and his accountants didnt know about the IRS election to count those losses as ordinary gains (475 f elections) . Otherwise Lanny would be taking the maximum $3000 capital loss deduction for the next few centuries. When he tried to file it late, the IRS refused. Finally the tax court let him go file the election. Now hes back to litigating and shaking down defendants.

Nebraska Supreme Court issues two contract dispute decisions where it refuses to find ambiguities in an underinsured motorist insurance policy and a purchase agreement for a landfillHillabrand v. American Fam. Mut. Ins. Co., S-05-049, 271 Neb. 585 and Kluver v. Deaver, S-05-104, 271 Neb. 595 In Hillabrand the Supreme Court refuses to extend underinsured motorist coverage that a company's owner purchased for business vehicles to his personal automobile while he was conducting business. How could a businessman let his personal vehicle coverage go for only the minimum and did he also make an executive waiver of worker comp? In Kluver, the plaintiff made a deal with Waste Management to sell it a dump site for Omaha trash that according to the royalties deal ended when the landfill filled to capacity. The Supreme Court found no problem with the royalties deal when Waste Management promptly started using adjacent land for a landfill. It will be very hard to find written contracts "ambiguous" from now on.

Eighth Circuit Court of Appeals affirms dismissal of perennial litigant Lloyd Trackwell legal malpractice suit against criminal defense counsel David Domina because Trackwell did not properly seek to stay the civil proceedings while his criminal case was pendingLloyd R. Trackwell v. David Domina #05-2974 District of Nebraska [UNPUBLISHED] [Per Curiam - Arnold, Lay and Colloton, Circuit Judges]The Federal District court did not err in finding Nebraska's two-year statute of limitations for legal malpractice was not tolled during the pendency of Trackwell's criminal proceedings. Trackwell was convicted in District Court but the Nebraska court of appeals reversed. ON remand, the State did not retry the plainitff. The reversal took place before the 2 year period would have run.

More El Salvadoran family values in Nebraska Supreme Court decision State v. Molina, 271 Neb. 488 Filed May 5, 2006. No. S-04-1230. Germai R. Molina from ElSalvador was convicted of second degree murder and child abuse resulting in death, arising out of the death of his 2-year-old daughter, Diana Molina. Molina was sentenced to a term of imprisonment of not less than 80 years to life on each conviction, sentences to be served consecutively. Molina appeals from his convictions and sentences. Interesting facts; I dont believe them because all immigrants are only here to do jobs Americans refuse to do and to make a better life for their families; plus I think we could be a little less judgmental of the values of other cultures: Molina explained in the interview that when he and his wife moved from El Salvador. Molina admitted in the interview that he had "spanked" Diana with a belt each of the four times she had urinated in the bedroom, striking five or six blows each time. Diana had, according to Molina, been "spanked" in that way twice in the 2 or 3 days preceding the interview. Molina also admitted that he had "got kind of mad" when Diana urinated in bed and hit her a bit more that time. Molina also said that Diana had defecated in her pants about a week before the interview and had been "spanked" with a belt about six times on that occasion. Molina said that he had not shaken Diana or struck her with anything other than a belt. Molina admitted that he picked Diana up once by her hair, about 3 or 4 days before the interview, and told her to clean up where she had urinated. Diana's hair came out, and Molina said it was the last time he had done that. Molina explained that because Diana was 2, almost 3, years old, he told Diana when he punished her that she was old enough to know not to urinate in her room.on July 22, 2003, approximately 24 hours before Diana's death. Molina was awake and with Diana. Mrs. Molina said that Diana "was naked and her arms were raised and she was standing on top of something that looked like a white bucket." Diana's hair was wet, and there were marks on her body from a belt. Molina was sitting on the edge of the bed with the belt in his hand, telling Diana not to fall asleep, and that if she put her hands down, he was going to hit her with the belt. Mrs. Molina testified that Molina told her that he was punishing Diana because she had urinated in her crib. Mrs. Molina said that Molina kept Diana there for about 3 hours and hit her with the belt five times during that period. Mrs. Molina said she told Molina to let Diana go to sleep, but he refused, saying that Diana could not go to sleep because "she was always peeing and that she was filthy and that she was being punished." When Diana fell asleep and fell over, Molina put her back on her feet in the same position. Eventually, Molina put Diana in her crib. Mrs. Molina testified that when she woke up around 10 a.m., Diana was again standing with her arms raised, and Molina was again telling her that if she dropped her arms, he would hit her with the belt. She remained in that position for approximately 2½ to 3 hours. Mrs. Molina said that when she told Molina not to make Diana suffer, Molina said that Mrs. Molina "needed to stop talking and telling him that because it would just make him spank her more and that it would just be best if I just would be quiet." Molina said that "he could do whatever he wanted because he was the father and he was the one that brought her into this world." Mrs. Molina testified that about 1:30 or 2 p.m., Molina went out and got some food, and they then ate inside the room. Molina had Diana stand up again because she had urinated on the floor. Mrs. Molina testified that Molina was very angry and pulled Diana up by her hair, and a chunk of Diana's hair came out. Diana spent the rest of the day on her feet. If Diana lowered her arms, Molina yelled at her and hit her with a belt until she raised her arms again. Mrs. Molina testified that around 8 p.m., Diana was allowed to drink some juice and eat an apple. Mrs. Molina said that she thought Diana "was very hungry because she was eating really fast and she was falling asleep and [Molina] went over and picked her up and spanked her or hit her about five times and then put her on top of the bucket again." Diana remained standing on the floor until Mrs. Molina went to bed at around midnight. Mrs. Molina testified that she slept intermittently, but heard Diana say that her feet hurt and she wanted to go to bed. Molina would not let her and made her run around the room while Molina hit her. Mrs. Molina said it sounded as if Diana was running into the furniture or walls. Mrs. Molina said she heard Diana say she needed to use the bathroom, and Molina said he would take her out in the living room and "have her do it in the paper." Diana then told him she was finished, Molina said he would clean her up, and then they came back into the room. Mrs. Molina testified that she heard Diana say her feet were hurting and that she wanted to sleep. After that, Mrs. Molina heard Diana screaming, and it sounded as if Molina was repeatedly hitting Diana with the belt. Mrs. Molina looked and saw Molina swinging Diana around and shaking her. Molina made Diana run and then after she fell, hit her repeatedly while she was on the floor. Mrs. Molina said that it sounded like Molina then repeatedly picked Diana up and dropped her to the floor "ten or twenty times." Molina hit Diana hard in the stomach; then, when Mrs. Molina looked, Molina was trying to get Diana up, but she was unresponsive. Molina told Mrs. Molina that Diana had fallen when he was bringing her back from the bathroom, but Mrs. Molina testified that she would have heard had Molina taken Diana up the stairs to the bathroom. Mrs. Molina attempted to resuscitate Diana, but was unsuccessful. They decided to take Diana to the hospital, but Molina insisted on dressing her in an attempt to hide bruises that Mrs. Molina testified were "almost all over her body." According to Mrs. Molina, Molina "said that I should say that she had already come that way from El Salvador; that a cousin had beat her and that not all of those [bruises] were from him." "That I should say that -- that what I had heard was that she had fallen down the stairs when he -- he was bringing her back from the bathroom." Mrs. Molina said that she told Molina "'[y]es,' that I would say that at the hospital so that he would take her to the hospital because if I didn't say that he wouldn't take her." They left for the hospital out the basement door, although that was not the door they usually used, because Molina said his mother was watching television and she would see what had happened and get worried.

Director of Motor Vehicles failure to sign revocation order following hearing officer's recommendation results in no final order for the Nebraska Court of Appeals to review; driver's appeal dismissed O'Hara v. Department of Motor Vehicles, 14 Neb. App. 709 Filed May 2, 2006. No. A-04-1128. The hearing officer recommended revocation of PL's driver's license for the statutory period. Directly below the hearing officer's signature on the "Proposed Findings of Fact, Proposed Conclusions of Law and Recommended Order of Revocation" is a section titled "Certificate of Adoption and Order," which purports to be the order of the director of the Department adopting the hearing officer's recommended order. It further states that PLs driver's license is revoked for 90 days, effective April 27, 2004. The "Certificate of Adoption and Order" is dated April 19, 2004, but it is not signed by the director. PL nonetheless appealed to the district court for Douglas County the Department's order of revocation. On September 22, 2004, the district court entered an order affirming the Department's order of revocation. APPEAL DISMISSED Neb. Rev. Stat. § 25-1301 (Cum. Supp. 2004) defines "rendition of a judgment" as "the act of the court, or a judge thereof, in making and signing a written notation of the relief granted or denied in an action." Under § 25-1301, "rendition of a judgment," i.e., the judge's signature, is a requirement for a final order.without the director's signature on the order of revocation, the director has not adopted the recommendations of the hearing officer as the official and final order of the Department, as stated in the "Certificate of Adoption and Order." We conclude that the signature of the director of the Department is required for an order of revocation to be effectively rendered.

Nebraska Court of Appeals excludes periods of salaried compensation when determing a workers average weekly wage when the injured worker performed the same kind of work through the 6 month period before the accidentGriffin v. Drivers Mgmt., Inc., A-05-995, 14 Neb. App. 722 Driver injured while driving for Werner Enterprises' Driver Management division had received both pay for mile driven and a flat salary during the 6 months preceding his work accident. The Court of Appeals rules, Judge Carlson dissenting, that the worker compensation court should calculate the average weekly wage, see 48=126 RRS Neb, by excluding the weeks the employee received a salary and counting only the weeks he was paid by the mile.Including PL's earnings when he was paid a salary and was engaged in a different character of employment would distort Pl's average weekly wage calculation. The trial court correctly calculated PLs average weekly wage, including from the 6 months preceding the accident only the earnings PL was paid based upon his output.

Trespassing sewer lines were too "imperceptibly" stinky to merit injunctive relief: Justce Stephan, Nebraska Supreme Court finds that property owners who connected their sewer line to public that that was then connected to another private sewer trespassed against the end owners but the Plaintiffs would not win an injunction against the plaintiffsLambert v. Holmberg, 271 Neb. 443 Filed April 21, 2006. No. S-04-1334. although the trespass in this case was repeated and continuous, we conclude that equity requires a balancing of the degree to which it impaired the Lamberts' property rights against the public interest in proper disposition of sewage in order to determine whether the trespass should be enjoined. The trespass, while real, was largely imperceptible. Unlike the circumstances in Atkinson Trust & Sav. Bank and Kittrell, there is no proof that the infusion of the Holmbergs' sewage comingled with that originating in the two sanitary and improvement districts would overload or even threaten the capacity of the private sewerline. Also, the record reflects that the Holmbergs have always stood ready to pay connection fees and a proportionate share of future maintenance costs on the same basis as homeowners in SID's 5 and 9, a pledge repeated by their counsel during oral argument of this appeal. Thus, the nature of the trespass at issue here results in only minimal interference with the Lamberts' possessory interest in their property. On the unique facts of this case, we conclude on de novo review that injunctive relief for the continuous and repeated trespass is not proper. Any failure of the Holmbergs to pay connection fees and a proportionate share of future maintenance costs can be adequately remedied by an action at law. The same is true with respect to the Lamberts' allegations that the Holmbergs' connection reduces by one the number of currently undeveloped lots which can eventually be connected to the sewer system. Here, the legal remedy available to the Lamberts is at least as "plain and complete and as practical and efficient to the ends of justice and its prompt administration" as the remedy of injunctive relief. Standard Oil Co. v. O'Hare, 122 Neb. 89, 93, 239 N.W. 467, 469 (1931).

Eighth Circuit affirms bankruptcy court judgment that provider of contract labor to physical therapy clinics who overcharged his clients by $376K would not be able to discharge this debt Judith O. Letrud v. Timothy M. Kurmel 053449U.pdf 04/26/06 After a bench trial, the state court found that Kurmel had "violated the trust placed in him by the plaintiffs", that there was "overwhelming" evidence Kurmel used Partners as an "alter ego", and that "it is apparent that Mr. Kurmel violated his fiduciary duties" to the plaintiffs. It entered judgment against Kurmel in the amount of $378,386.30. Subsequent to the ruling, Kurmel filed for bankruptcy protection. Under 11 U.S.C. § 523(a)(4), a debt is nondischargeable if it is for "fraud or defalcation while acting in a fiduciary capacity". After de novo review, see Kasper v. Federated Mut. Ins. Co., 425 F.3d 496, 502 (8th Cir. 2005), we conclude that the debt is nondischargeable under § 523(a)(4) for the reasons explained by the district court.

Survey of worker compensation index premium cost per $100 of payroll shows Nebraska about in the middle for insurance costs for job accidents the 2004 Oregon Workers’ Compensation Premium Rate Ranking Summary, compares premium costs by state. Nebraska and Missouri are in the $2.00 to $2.99 range; surprisingly Iowa and Kansas are in the lowest quartile with costs under $2.00 per $100 of payroll. So why to lawyers scramble to get into the Iowa comp system if they have a chance?

A commendable "my bad" from the Eighth Circuit Court of Appeals as it recognizes that although conspirators may be merely slightly involved in a criminal conspiracy to be guilty, the government still must prove that slightness beyond a reasonable doubtDecision of the day blog commends the Eighth Circuit for clairfying that even defendants in federal criminal conspiracy trials are guilty only when the state proves its case beyond a reasonable doubt.

U.S. v. Lopez, 04-2254 (8th Cir., Apr. 17, 2006) over time,the court's application of the slight evidence standard has become careless, migrating away from the reasonable doubt requirement. Accordingly, the Court decides to join the First, Fourth, Fifth, Seventh, Ninth and Eleventh Circuits in rejecting the slight evidence standard. the government must prove beyond reasonable doubt that a defendant is a member of a conspiracy. Such a principle is of course irreconcilable with the long-accepted burden of proof in criminal cases, see In re Winship, 397 U.S. 358, 361-64 (1970), and it is particularly unwarranted in conspiracy law, where the government has the ability to hold relatively small players responsible for a wide range of criminal conduct. See United States v. Martinez de Ortiz, 883 F.2d 515, 524 (7th Cir. 1989) (Easterbrook, J., concurring), reh'g granted and judgment vacated on other grounds, 897 F.2d 220 (7th Cir. 1990).

ScOTUS reinstates Disabilities Act suit against the Nebraska Department of Health UNITED STATES v. NE DEPT. OF H&HS FIN. & SUPPORT (61335) Order dated: 04/17/06 Docket number: 05-777. Disabled individuals sued the Nebraska Department of Health and Human Services, alleging violations of their rights under federal law by denying them inhome medicaid services. They alleged the denied services made them likely to require instituionalization. The Eighth Circuit Court of Appeals dismissed the suit on eleventh amendment grounds. Bill M v. Nebraska Dept of Health, etal. The petition for a writ of certiorari is granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of United States v. Georgia, 546 U.S. ___ (2006).

Plaintiff who alleged doctors at UNMC negligently performed a gastric bypass operation while he was a minor must file his professional negligence action within 2 years after he reached majority age (per 25-513 21 years); Nebraska Supreme Court Hannon, Judge, Retired rules that since negligence occurred during plaintiff's minority, the "discovery rule" was not available to extend the pL's statuteCarruth v. State, 271 Neb. 433 Filed April 21, 2006. Nos. S-04-1305, S-04-1422. when a plaintiff is under the age of 21 years at the time his or her claim accrues, the statute of limitations period runs from the plaintiff's 21st birthday, and that when the injury is discovered within the 2-year limitations period, the discovery principle does not apply to toll the applicable statutes of limitation. Supreme Court affirms summary judgment as Pl's cases were not timely filed

Nebraska Supreme Court (McCormack, J.): Defendant who brought facial challenge to Nebraska child enticement law (§ 28-320.02) waived constitutional challenge when he failed to bring demurrer or motion to quash instead of pleading not guilty to enticing a police officer who posed as an online child; Court notes that signing 29-4206 form does not allow conditional not guilty pleas.State v. Liston, 271 Neb. 468 Filed April 21, 2006. No. S-05-1046. Defendant signed a form entitled "Written Arraignment and Waiver of Physical Appearance," which was filed with the court on January 25, 2005. The Def. marked "plea in abatement" and "motion to quash." The district court's journal entry for February 3, 2005, shows that pursuant to this waiver, the court entered Liston's not guilty plea "subject to any pretrial motions noted therein." The defendant's subsequent motion to quash was overruled. The cour tof appeals dismissed that appeal for lacking a final order and a jury convicted the defendant. The Defendant on appeal sought to challenge the constitutional validity of the child enticement law. Supreme Court affirms Pursuant to Neb. Rev. Stat. § 29-1812(Reissue 1995), once a defendant has entered a plea, or a plea is entered for the defendant by the court, the defendant waives all facial constitutional challenges to a statute unless that defendant asks leave of the court to withdraw the plea and thereafter files a motion to quash. State v. Kubin, 263 Neb. 58, 638 N.W.2d 236 (2002). Section29-4206does not, however, authorize district courts to accept pleas of not guilty on a conditional basis. Moreover, such an interpretation would be inconsistent with the Legislature's statement of intent in Neb. Rev. Stat. § 29-4201(Cum. Supp. 2004). A preamble or policy statement in a legislative act is not generally self-implementing, but may be used, if needed, for assisting in interpreting the legislative intent for the specific act of which the statement is a part. State v. Buckman, 267 Neb. 505, 675 N.W.2d 372 (2004). Section 29-4201provides: "It is the intent and purpose of sections 29-4201 to 29-4207 to authorize . . . certain district court arraignments by writing in criminal proceedings consistent with the statutory and constitutional rights guaranteed by the Constitution of the United States and the Constitution of Nebraska." (Emphasis supplied.) The language of § 29-4201demonstrates that the Legislature did not intend to allow written arraignments to supersede Nebraska's criminal procedure statutes. Relevant here, the waiver of defects statute, § 29-1812, specifically provides: "The accused shall be taken to have waived all defects which may be excepted to by a motion to quash, or a plea in abatement, by demurring to an indictment or pleading in bar or the general issue." (Emphasis supplied.) A defendant's waiver of defects under § 29-1812is mandatory and does not permit a district court to entertain his or her facial challenge to a statute raised in a motion to quash so long as the defendant's plea to the general issue still stands. Nothing in Section29-4206contravenes the language of§ 29-1812, nor did the Legislature alter § 29-1812at the time that Neb. Rev. Stat. §§ 29-4201 to 29-4207 (Cum. Supp. 2004) were enacted. Thus, the Legislature is presumed to have retained the requirement under§ 29-1812that a defendant must withdraw his or her plea to the general issue before filing a motion to quash, even if the defendant's plea is entered pursuant to a written arraignment. See State v. Neiss, 260 Neb. 691, 701, 619 N.W.2d 222, 229-30 (2000) ("where a statute has been judicially construed and that construction has not evoked an amendment, it will be presumed that the Legislature has acquiesced in the court's determination of the Legislature's intent"). A district court does not have authority to permit a defendant to file a motion to quash challenging the facial validity of a statute unless the defendant first obtains leave to withdraw his or her plea of not guilty.

Follow up: Supreme Court accepts further review of pedophile's harsher resentencing in Sarpy County after change of judgesNo. S-05-529: State v. Bruna, 14 Neb. App. 408 (2006) petition for further review sustained 4-12.

Nebraska Supreme Court refuses to expand negligent emotional distress claims beyond existing case law that requires either 1) close family relationship with victim of negliegence or 2) presence in the "zone of danger" along with victim of physical injury Catron v. Lewis, 271 Neb. 416 Filed April 14, 2006. No. S-04-1212. Nebraska's own Jerry Spence Maren Chaloupka took up to the Supremes her claim that emotional distress claims could apply to just about anybody who experienced shock after a horrible accident. Her client attemtped to save a victim of a boating accident involving careless jet skiers and claimed he expereienced distress after pulling the severely injured swimmer from the water. The District Court granted summary judgment on the ground the conduct was not distressful enough. Supremes reverse on other grounds, sticking to the existing "zone of danger" rule; interesting that the Supreme Court would not discuss what kinds of accidents might lead to zone of danger distress claims The plaintiff seeking to bring an action for negligent infliction of emotional distress who has not been impacted or injured must show either (1) that he or she is a reasonably foreseeable "bystander" victim based upon an intimate familial relationship with a seriously injured victim of the defendant's negligence or (2) that the plaintiff was a "direct victim" of the defendant's negligence because the plaintiff was within the zone of danger of the negligence in question. See, Hamilton v. Nestor, 265 Neb. 757, 659 N.W.2d 321 (2003); James v. Lieb, 221 Neb. 47, 375 N.W.2d 109 (1985). In addition, such plaintiffs whose only injury is an emotional one must show that their emotional distress is medically diagnosable and significant and is so severe that no reasonable person could have expected to endure it. See Hamilton v. Nestor, supra This court has extended the class of potential plaintiffs to "bystanders" outside the zone of danger who have a close familial relationship with a seriously injured victim because, as the court in Migliori v. Airborne Freight Corporation, 426 Mass. 629, 637, 690 N.E.2d 413, 418 (1998), explained, "[p]ersons bearing close 'familial or other relationship' to the directly injured third person comprise a discrete and well-defined class, membership in which is determined by preexisting relationships." For witnesses having no such close relationship with the victim, however, we limit recoverability to those persons who are within the zone of danger of the negligent conduct which resulted in the incident in question.

Bob Bennie Investments prevails on appeal against Design Data and Old Cheney LLC's claim for additional contributions for 14th & Old Cheney office park's upkeep; Appeals court agreed with Lancaster County District Court that BobBennie and Design Data had an equal say in the development's upkeep Bob Bennie Properties v. Design Data (Not Designated for permanent publication) Filed April 11, 2006. No. A-04-1096. Appeal from the District Court for Lancaster County: Steven D. Burns, Judge. Affirmed in part as modified, and in part reversed. Design Data CEO Jim Dager developed area around 14th & Old Cheney in Lincoln for an office park. Bob Bennie Investments acquired some property for an office building. Originally the development's association bylaws gave each lot owner one vote over association business (3 lots total) and required a 2/3 vote of the owners to approve changes. On its own Design Data amended the bylaws to charge association upkeep by the owners' square footage, which increased Bennie's costs considerably. further the Association charge Bennie a 10% surcharge for overall Association costs and required upkeep of a golf hole. Bennie sued in Lancaster County District court and the trial court finds the amendments were invalid because each party had an equal say in agreeing to amendments. The appeals court further reverses in favor of Bennie however on the common area and golf hole issue, finding the Association could not charge him for its upkeep nor for the gross associations cost. (here there were) only two lot owners, not three, and construing section 31 to mean that Design Data can amend the covenants merely because it still owns two of the three lots would in essence make the temporary voting rights set out in section 5 meaningless. Section 5 does not grant Design Data one vote per lot; rather, it limits Design Data to one vote regardless of whether one or two lots remain unsold. Similarly, the lack of provisions about subsequent owners does not make the covenants ambiguous. Rather, as discussed above, the covenants read as a whole show that section 5 should be given its plain meaning, which is that Design Data and BBP are each entitled to one vote in the Association until Design Data sells one of the two remaining lots to an unrelated party. Any other construction would contradict the plain meaning of the covenants read as a whole. we find that Design Data's amendments breached the restrictive covenants and that the amendments have no force or effect. We also find that the Association is obligated to pay for the costs to maintain the golf hole located on Lot 2 and for the costs to maintain the area within 15 feet of each building. We reverse the portion of the court order assessing BBP a 10-percent overhead charge on all of the Association's maintenance costs, given that such assessment is not supported by the record. In all other respects the judgment is affirmed as modified.

Nebraska court of appeals: temp worker who fell outside common area that employer used with other businesses was not injured in the scope and course of employmentRasch v. Remedy Intelligent Staffing (Not Designated for Permanent Publication) Filed April 11, 2006. No. A-05-838. Temp worker fell while leaving work in an area the trial court judge determined was outside the employer's premises and the common area the employer shared with other businesses. The court of appeals upholds this fact issue ruling and upholds the dismissed case. Distinguishing Zoucha v. Touch of Class Lounge, 269 Neb. 89, 690 N.W.2d 610 (2005), the appeals court found that the employee who fell while exiting work did not fall in an area like a shopping center parking lot provided for the convenience of, and use by, employees of the businesses located in the center which the court would consider a part of the premises of an employer located in the center.

The trial court made a factual determination that the area where Rasch fell was outside of the "dock area," and upon our appellate review, we cannot say that this determination is clearly wrong. Rasch did not prove that he was injured on the premises of Moore Wallace; nor did Rasch prove a distinct causal connection between an employer-created condition and the cause of his injury. Accordingly, the review panel did not err in affirming the trial court's dismissal of Rasch's petition.

Attorneys: make sure your judges fill out their child support orders completely!Nebraska court of appeals dismisses appeal of modified child support order in paternity case where the trial court left blank the father's new monthly child support obligation Goeser v. Allen, 14 Neb. App. 656 Filed April 11, 2006. No. A-05-658. The Appeals court also overrules State v. Engleman, 5 Neb. App. 485, 560 N.W.2d 851 (1997) to the extent that case purported to rule on any issues presented in a case lacking appellate jurisdiction.

(here) the trial court ordered modification of the child support obligation, but it did not ascertain Alvin's monthly obligation. Instead, as shown above, the court left unfilled blanks in the order. Because no specific sums for child support were included in the trial court's order, and because the rights and liabilities of the parties could not be ascertained without going beyond the record, the order was not a final, appealable order. Accordingly, this court is without jurisdiction to consider.(father's) appeal, and it must be dismissed

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Nebraska Supreme Court rules that whistleblowers' retaliatory discharge claims are subject to the general four year statute of limitations and not the 300 day limitations for fair employment practices claims; court allows mental suffering damages without proof of accompanying medical diagnoses because the whistleblower's cause of action is an intentio Wendeln v. Beatrice Manor, 271 Neb. 373 Filed April 7, 2006. No. S-05-188. We agree that a public policy-based retaliatory discharge claim is based in tort. Accordingly, such a claim is governed by the general 4-year statute of limitations period found in § 25-207. Wendeln's claim is not barred by the applicable statute of limitations. a public policy exception to the employment-at-will doctrine applies to allow a cause of action for retaliatory discharge when an employee is fired for making a report of abuse as mandated by the APSA. Having made such a determination, we examine Beatrice Manor's remaining assignments of error regarding "good faith" and noneconomic damages.nal tort As in the tort of battery considered in Kant v. Altayar, supra, and unlike the torts of negligent or intentional emotional distress, severe emotional distress is not an element of the tort of retaliatory discharge in contravention of public policy. Accordingly, there is no threshold limitation based upon the degree of severity of the mental suffering, nor is it necessary to show that the plaintiff sought medical treatment or counseling for the mental suffering in order for it to be recoverable as past and present damages. We find that mental suffering is simply an aspect of providing full recovery for the wrong, where present, and there is no rational reason to confine such full recovery to those former employees whose mental suffering has been severe.

Nebraska Supreme Court dismisses Sarpy County Attorney's appeal from Juvenile Court's throwing out manslaughter charges from accidental shooting In Re Sean H The Sarpy county attorney charged a juvenile with manslaughter after the boy accidentally shot and killed his friend. Following the delinquency trial, the Sarpy County Juvenile Court dismissed the more serious charge and the prosecutor sought an appeal directly to the Nebraska Court of appeals. The Nebraska Supreme Court dismisses the county attorney's appeal for lack of jurisdiction The county attorney sought direct appeal to the court of appeals, as the Sarpy County Juvenile court is a separate court from the county courts. However the prosecutor may appeal rulings of the juvenile court only in accordance with Section 43-2,106.01 (1) Any final order or judgment entered by a juvenile court may be appealed to the Court of Appeals in the same manner as an appeal from district court to the Court of Appeals. The appellate court shall conduct its review within the same time and in the same manner prescribed by law for review of an order or judgment of the district court . . . . (2) An appeal may be taken by: . . . . (d) The county attorney or petitioner, except that in any case determining delinquency issues in which the juvenile has been placed legally in jeopardy, an appeal of such issues may only be taken by exception proceedings pursuant to sections 29-2317 to 29-2319 Since the county attorney failed to follow this procedure for appealing the results of the delinquency trial, to which jeopardy had attached, the court dismisses the appeal.

Eighth circuit takes on Seibert issue

Eighth Circuit rules that interrogation is custodial if suspect appears for police questioning under coercion of probable parole violation; Following Missouri v. Seibert, 542 U.S. 600(2004), State must prove that confessions following midstream Miranda warnings were voluntaryDecision of the Day: Interesting Mid-Stream Miranda Case Eighth Circuit Court of Appeals reverses Iowa Southern District opinion and rules that parolees appearance at police station was not voluntary, therefore police had to give miranda warnings. United States v Ollie No. 05-2503 Southern District of Iowa, 3-31. Eighth Circuit finds a parolee must give statements to police or else face parole violations. Eighth circuit also decides that under Seibert, the state has the burden to prove statements following a midstream Miranda warning was voluntary, assuming that Justice Kennedy's concurring view would apply {purposefuly circumvention of Miranda using two step interrogation}: "The parole officer testified that it would have been a violation of his parole for Mr. Ollie to refuse to go to the meeting and that a refusal could have led to Mr. Ollie's parole being revoked, and Mr. Ollie testified that because of this order he felt that he had no choice but to meet with Chief McNeill. Faced with such pressures, we think that Mr. Ollie had little choice but to comply. hold that the failure to advise Mr. Ollie of his rights pursuant to Miranda requires the suppression of his initial oral confession to Chief McNeill." On Seibert issue, court would follow Justice Kennedy's concurring view and suppress post-warning statements only where the police intentionally used the two-step interrogation technique to render the Miranda warnings ineffective. Such statements would be inadmissible unless the police took curative measures thatwould ensure that a reasonable person would understand his or her rights. Id. at 621-22 (Kennedy, J., concurring in the judgment). when a defendant moves to suppress a post-warning statement that he contends was given as part of a question-first interrogation, the prosecution must prove, by a preponderance of the evidence, that the officer's failure to provide warnings at the outset of questioning was not part of a deliberate attempt to circumvent Miranda. Placing that burden on the prosecution is consistent with prior Supreme Court decisions that require the government to prove the admissibility of a confession before it may come into evidence.

Nebraska Supreme Court (J. Connolly) rules out evidence of doctor's disciplinary history in malpractice case alleging uninformed consentCurran v. Buser, 271 Neb. 332 Filed March 31, 2006. No. S-04-1303. District Court dismissed med mal case where plaintiff alleged his surgery was without informed consent because the doctor had not disclosed his disciplinary history. Supreme Court rejects this"material risk" theory of informed consent, that is what are particular risks as to the doctor, and favors the "professional risk" doctrine of informed consent, that is what the standard of care would be for similary situated doctors in that locality. The Nebraska medical hospital liability act adopts the "professional theory" for its standard of care and the evidence required to prove the standard of care and it adopts a two-prong test for causation. The first prong uses an objective standard to evaluate the plaintiff's decision to forgo the surgery, while the second requires proof that the lack of informed consent proximately caused the injury and damages. Although our statutory framework is somewhat unique, we note that other professional theory jurisdictions also use objective standards for causation. See, e.g., Funke v. Fieldman, 212 Kan. 524, 512 P.2d 539 (1973). Under §§ 44-2816 and 44-2820, consent is informed when a doctor advises a patient of the risks in the same manner as doctors in similar localities and under similar circumstances ordinarily would. However, before a plaintiff may recover any damages sustained, the plaintiff must prove by a preponderance of the evidence that a reasonably prudent person in the plaintiff's position would not have undergone the treatment if he or she were "properly informed" and that his or her injuries were proximately caused by the lack of informed consent. Although § 44-2820 does not define proper information, when read in conjunction with § 44-2816, a patient must be properly informed under § 44-2816. Under this framework, the Plaintiff must first had to prove by expert testimony that doctors in similar locations and situations would ordinarily disclose their disciplinary history. After establishing the standard of care, thePlaintiff must next prove that Defendant deviated from that standard. To prove causation, Plaintiff must prove both that a reasonable person in their situation would have refused the surgery if Defendant had properly informed them under the standard and that the lack of information proximately caused the injury sustained and damages alleged. The statute's requirements are cumulative; thus, in order to proceed to the next step, the plaintiff must prove the one before it.