February 14th, 2007

Long Island Jury Awards 251K to Animal Rights Activist

A Long Island animal rights activist that was fired from a volunteer position by the town of Southampton, for speaking out against their animal euthanasia policy, has been vindicated by a jury. From Newsday:

A federal jury awarded an East End animal rights’ activist a $251,000 judgment Wednesday in a case that also compelled Southampton town to re-examine its euthanasia policy for stray cats and dogs.

Patricia Lynch said the town unfairly ended her work as a volunteer at its animal shelter after she used a radio show and newspaper column to speak out against putting the animals to sleep. The end of her work at the shelter, her attorney argued in U.S. District Court in Central Islip, made it impossible for her to continue rescuing the animals and place them in local homes…

[U.S. Judge Arthur D.] Spatt found that just like other municipal volunteers, such as volunteer firemen, Lynch did have First Amendment rights to free speech and due process…

February 13th, 2007

New York Teen Sues Taco Bell Over E. Coli Poisoning

From today’s New York Post:

L.I. TEEN: BELL MADE ME TACO ILL

A 16-year-old boy says he suffered “severe and permanent personal injuries” after eating food from a Long Island Taco Bell.

In papers filed in Manhattan Supreme Court, James Robinson, of Rockville Centre, says he “experienced great pain and suffering” and was hospitalized with E. coli poisoning after his mother picked him up some dinner at a now-shuttered Taco Bell in Hempstead.

The incident took place in mid-November – weeks before word of an outbreak of E. coli poisoning at several northeastern Taco Bell outlets became public.

I note that the venue selected was Manhattan, more liberal than the very conservative Nassau County where the boy lives and where the restaurant was located (and where I grew up). I have to assume that the venue choice of Manhattan was based on the location of either the restaurant franchisee or the merchant that supplied the vegetables. Taco Bell HQ is in California.

February 12th, 2007

Anna Nicole Smith — Is a Wrongful Death Suit Possible?

Anna Nicole Smith left behind a spider web of litigation that not only won’t end soon, but could even get worse if her death is not from natural causes.

Over at FindLaw, Joanne Grossman writes a fairly thorough article entitled: The Litigation-Filled Life of Anna Nicole Smith, and the Legal Aftermath of Her Demise, but leaves out one big “what if.”

In discussing the future, she leaves out the potential for a wrongful death action if her death is found to be caused by drug-related issues. Such an action could be brought by the surviving daughter against someone that facilitated her acquisition of the drugs (if that is what happened, it is speculative at the moment).

And making matters worse, that person might be one of the people currently vying for custody of the child. It’s enough to make your head spin.

It is important to note that neither accidental or intentional overdose would preclude a wrongful death action (at least in New York). If one were to hand a suicidal person a gun, for example, the one that furnished the gun could be found negligent.

Since it has been reported that she may have had as many as 10 different medications in her room (and assuming that drugs were the cause), and also that she had a reported history of drug problems, the provider of those drugs could be found negligent for having supplied some of the medications.

Of course, with toxicology results not expected for some time, folks will have to wait. But there certainly looms the potential for a miserably complicated set of lawsuits to become more so.

January 31st, 2007

Jurors Can’t Be Excluded by Nationality, Judge Says

A federal Magistrate Judge sitting in New York has ruled that potential jurors cannot be excluded from a jury based on nationality. The rule against discrimination stems from Batson v. Kentucky, where race had been used by attorneys for peremptory challenges. The Batson rule also been extended to other minorities and to gender based discrimination, and extends also into civil cases.

From today’s New York Times (sub. req.):

The judge, in a ruling last week, opened a door to lawyers defending a West Indian man who argued that he had been denied justice because all five potential jurors who were West Indian were improperly excluded by the prosecution. The Bronx jury that convicted the man, Mark Watson, of rape, sodomy and burglary included blacks, but all of them were American born.

…

The judge, James C. Francis IV, ordered a hearing to determine “whether the state can offer a nondiscriminatory explanation for its peremptory challenges and whether Mr. Watson can carry his burden of establishing discriminatory intent.” If a separate hearing determines that jury selection was discriminatory, Mr. Watson, who was born in Jamaica and is serving 37 1/2 to 75 years in prison, could receive a new trial.
…

“Mr. Watson established that the prosecutor had struck every one of the five West Indian prospective jurors, a showing that was plainly sufficient to support an inference of intentional discrimination,” Judge Francis wrote.

“If striking five out of five West Indian jurors is insufficient to raise an inference of discrimination, it is difficult to imagine what sort of pattern of strikes might do so,” he said.

Personally, when I pick juries I always have a reason when exercising a challenge, and I think trial lawyers make a mistake when they bounce potential jurors based solely on discriminatory factors. While on the one hand a lawyer wants the jury to look like his own client, on the other hand, those from the same racial/ethnic/national/gender group may also be the harshest critic of their own. Picking a jury takes a lot more subtlety than simply looking at the superficial features of your fellow man.

January 30th, 2007

Scooter Libby Trial – A Truly Bizarre Trial Experience

This isn’t about New York personal injury law, but it is about trial practice, and is simply too good to pass up…a trial observer (then-Time magazine correspondent John Dickerson) that suddenly finds the testimony is about him…it comes from Slate at this link…this is the lede and the end, but the middle is well worth reading…

Dispatches From the Scooter Libby Trial

I wanted to raise my hand and ask, “Your Honor, may I approach the bench?”

I was at the Scooter Libby trial to cover it, and all of a sudden, I found myself in the middle of the case. In his testimony today, former White House press secretary Ari Fleischer told the courtroom — which included me — that when I was a White House correspondent for Time magazine, he had told me that Joe Wilson’s wife worked at the CIA.

He did?

Everyone had heard about Robert Novak, Matt Cooper, and Judith Miller, the reporters who had received the Valerie Plame leak. But now Ari was saying I was in that club, too.
…

Only moments before Ari’s surprise disclosure, I had been trying to figure out what my lede would be for today. I enjoyed seeing Ari have to answer questions under oath, which he never had to do in the White House briefing room. As a reporter, I’d always tried to put him in the witness box, and he always climbed out. Now he may have put me in there.

There’s nothing quite like the heart-pumping drama and surprise of a good trial.