Using Mental Illness as a Criminal Defense

In the child sexual abuse criminal trial of Jerry Sandusky, the former assistant coach of the Penn State University football team, the defense made an argument that Sandusky had histrionic personality disorder.
TheLegalIntelligencer.com

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Duquesne Law Dean Weighs in on 'Landmark' Health Care Decision

Duquesne School of Law Dean Ken Gormley said Thursday that the U.S. Supreme Court?s ruling upholding President Obama?s health care reform legislation was one of the most important decisions to come from the high court since the days of President Franklin D. Roosevelt, when it was faced with federal legislation aimed at bringing the country out of the Great Depression.
TheLegalIntelligencer.com

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Fresh Ink: Inside Today's Legal - June 29

Can't find a paper, but want a sneak peek at the stories inside The Legal this morning? Consider this your personal delivery service.
TheLegalIntelligencer.com

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Colo. Supreme Court rules ballots can be inspected

DENVER (AP) - The Colorado Supreme Court has ruled that voted ballots are public records open to inspection by any citizen.
TheLegalIntelligencer.com

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Letter: Mandatory Arbitration in Nursing Home

I have read Joel Fishbein's article regarding mandatory arbitration in nursing home contracts appearing in the June 22 edition of The Legal Intelligencer ("Appropriate Jury Trial Limitations Found in Nursing Home Contracts"). The majority of my practice of the past 15 years has been representing families whose loved ones have been harmed while living in long-term care facilities. I feel a few points need to be touched upon in response to his article.
TheLegalIntelligencer.com

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Consumers Allege Pulp Fiction in Tropicana's 'Natural' O.J. Claims

Federal lawsuits are mounting against Tropicana, alleging that its "natural" orange juice is as much a product of laboratory science as of squeezing.
TheLegalIntelligencer.com

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Defendant's Smile Gets Him Six More Months in Prison

A district court has the discretion to boost a prison sentence because the defendant smiled at the sentencing, the U.S. Court of Appeals for the Eighth Circuit has ruled.
TheLegalIntelligencer.com

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Several Law Schools Undergo Deanship Changes

Things may have slowed down for the summer on the nation's law school campuses, but there's plenty of activity among the ranks of law deans.
TheLegalIntelligencer.com

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Court Establishes Joint-Employer Test, Rejects Suit Against Enterprise

In a case of first impression in the circuit, the U.S. Court of Appeals for the Third Circuit has established a four-part test to determine whether a company is a joint employer under the Fair Labor Standards Act.
TheLegalIntelligencer.com

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Court won't hear 'wardrobe malfunction' appeal

WASHINGTON (AP) - The Supreme Court decided Friday not to consider reinstating the government's $ 550,000 fine on CBS for Janet Jackson's infamous breast-bearing "wardrobe malfunction" at the 2004 Super Bowl.
TheLegalIntelligencer.com

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Cerevisaphiles Complain About Beer Stein Bait and Switch

Cerevisaphile (Cer-a-vehs-a-file) 1.an aficionado of beers and ales, 2.a devotee to the decoction of barley infused with hops and fermented, 3.an imbiber of beer on the highest order, bordering on devotion, 4.one who pursues the very finest in malted beverages. The etymology of the word derives from the Latin term for beer - Cerevisia.

A group of cerevisaphiles, or beer enthusiasts, sued in federal court after a bait and switch left a bitter taste in their mouths, reports the Courthouse News Service.

According to the great imbibers, they were promised a grandiose reward for completing the World Beer Tour at the Old Chicago Restaurant chain. If they managed to drink all 110 tasty brews available at the restaurant, they would be presented with an honorary 36oz Beer Stein.(On an ironic note: There are only three Old Chicago restaurants in Illinois.None are near Chicago).
The stein was more than a mere mug, or a trophy. Indeed, the great glass could be filled with any beer for the price a mere pint. It was a magical reward.

Unfortunately for the cerevisaphiles, Old Chicago would break promises, and hearts, by substituting a 22oz stein for existing and new members to the Hall of Foam.

Undaunted by the obstacle placed in the way of their economical intoxication, three courageous souls challenged the evil bait and switch tactic in court, alleging consumer fraud, false advertising, and breach of contract claims.

However, no battle worth fighting is won so easily. Indeed, the court held no sympathy for the men who managed to refill their larger steins 5,720 times in the years prior to the great stein substitution.

The court found that neither the alleged fraud nor the false advertising induced the trio to enter into a commercial transaction. Indeed, they had already completed the initial World Tour, and heavily used their mugs, prior to the Great Stein Switch.

However, not all is lost. The gentlemen may still pursue their breach of contract claim. When mutually beneficial promises are exchanged, and one party later reneges, the aggrieved party can go to court and either force the other side to perform as they promised, or in the alternative, can get a monetary judgment to approximate the position that they would have been in had Old Chicago performed as required.

This means that the three men could still get that which they originally sought -- bigger beers.

Related Resources:


Speak to a Chicago Personal Injury Attorney (FindLaw)
Palm et. al v. Rock Bottom Restaurants d/b/a Old Chicago (U.S. District Court Opinion)
New China Wok Tossed Woman Through Glass Door Over Sauce Packets (FindLaw's Chicago Personal Injury Law Blog)
ConAgra's Hebrew National Not Kosher, Says Former Employee (FindLaw's Chicago Personal Injury Law Blog)
"Breach of Contract" and Lawsuits (FindLaw's Learn About the Law)


The Chicago Personal Injury Law Blog

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Supreme Court turns away media companies' appeal

WASHINGTON (AP) - The Supreme Court has turned down media companies' plea to lift a prohibition on owning both a newspaper and a television station in the same market.
TheLegalIntelligencer.com

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Caesar Rivise Gets New Managing Partner

Philadelphia-based intellectual property boutique Caesar, Rivise, Bernstein, Cohen & Pokotilow has changed its leadership, with David M. Tener taking over the managing partner post from Manny D. Pokotilow, who held the position for about two decades.
TheLegalIntelligencer.com

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In Harrisburg Incinerator Case, Jones Orders Authority to Pay $19 Million

A Harrisburg municipal authority must pay $ 19 million it owes for the use of a proprietary combustion technology installed in its garbage incinerator, U.S. District Judge John E. Jones III of the Middle District of Pennsylvania has ruled.
TheLegalIntelligencer.com

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Orie Melvin Loses Bid for Recusal of Allegheny Bench

Justice Joan Orie Melvin has lost her bid to have the entire Allegheny County bench recuse itself from hearing the nine criminal charges brought against her.
TheLegalIntelligencer.com

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U.S. Supreme Court Upholds Obama Health Care Mandate

In a stunning victory for the Obama administration, the U.S. Supreme Court on Thursday upheld the centerpiece of the nation's new health care law — the so-called individual mandate to buy insurance — as a constitutional exercise of Congress' taxing authority.
TheLegalIntelligencer.com

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Judge nixes Melvin motion to recuse county bench

PITTSBURGH (AP) - An Allegheny County judge has refused a request to bar other county judges from hearing the public corruption case of state Supreme Court Justice Joan Orie Melvin, which her attorney argued was necessary because a key prosecution witness is married to a county judge.
TheLegalIntelligencer.com

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Lawyers Now Focus on Health Care Reform's Practical Effect

Now that the U.S. Supreme Court has given a green light to implementation of President Obama's health care reform legislation, area lawyers are advising employer clients on whether it makes sense to offer employees health care come 2014.
TheLegalIntelligencer.com

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High Court Upholds Key Part of Obama Health Law

The Supreme Court on Thursday upheld the individual insurance requirement at the heart of President Barack Obama's historic health care overhaul.
TheLegalIntelligencer.com

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Appeal of Judge's Decision on Recusal Must Wait for Outstanding Motions

An appellate court cannot review a trial judge's decision on recusal until after all the claims and the parties are disposed of, the state Superior Court ruled in a complicated class action involving the destruction of a Montgomery County business complex by a fire and a flood.
TheLegalIntelligencer.com

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Lawmakers' Step May Lead to Increase in Pa. Judiciary Budget

In a step toward increasing the state judiciary's budget over Governor Tom Corbett's proposal, the state House of Representatives' Appropriations Committee on Wednesday approved $ 8.2 million in additional funding for the courts.
TheLegalIntelligencer.com

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Computergate Suit Against K&L Gates, Buchanan Tossed

An Allegheny County Court of Common Pleas judge has thrown out a suit against K&L Gates and Buchanan Ingersoll & Rooney brought by a former state House staffer caught up in the Computergate scandal.
TheLegalIntelligencer.com

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U.S. Gov't Not Required to Disburse $1.6 Bil. in Unclaimed Bonds to States

The U.S. Court of Appeals for the Third Circuit affirmed a district court's holding that the U.S. Treasury is not obligated to dispense $ 1.6 billion worth of unclaimed bonds to the states in which their owners live.
TheLegalIntelligencer.com

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Winning bidder tapped for Harrisburg's incinerator

HARRISBURG, Pa. (AP) - The state appointee who is overseeing Pennsylvania's financially struggling state capital picked the waste management agency in a neighboring county as the winning bidder for Harrisburg's municipal trash incinerator he is trying to sell.
TheLegalIntelligencer.com

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New China Wok Tossed Woman Through Glass Door Over Sauce Packets

There is a common refrain of complaint amongst us full-figured types: Why, oh why, do fast-food and casual dining places only give you one packet of sauce? If a customer just ordered 20 chicken nuggets, shouldn't it be obvious that more than one Sweet and Sour packet is required to enjoy the full flavor and tastiness that is in those processed poultry treats?

Most of the time, such requests are met with either rolled eyes or a demand for $ 0.10 per packet. New China Wok, at least according to Tiawanda Shears, instead decided to beat the crap out of her and throw her through a glass door, reports Courthouse News Service.

But did she get her sauce packets?

Spears claims that she placed a to-go order; when it was handed over, it only had one sauce packet. When she politely requested more sauce, an employee of the store, Hui Tian Wu, allegedly became enraged and attacked her. He pushed her out of the front of the restaurant and then slammed her violently into the glass door, causing it to shatter and Spears to severely injure her leg.

We're still waiting on the sauce, bro.

She is suing her attacker, as well as the restaurant, for both battery and intentional and negligent infliction of emotional distress. It is truly amazing how many personal injury lawsuits include claims for emotional distress, without regard to whether there is even a chance that they will win on the claim. It's added almost as often as the lawyer adds the word "plaintiff" to a complaint.

In many states, and arguably even in Illinois for a time, some physical manifestation of the emotional distress was necessary. Ulcers, violent nausea, or something more than, "I'm sad ... and I can't sleep!" was needed. However, in 2009, the Illinois Supreme Court lowered the bar and declared that neither physical manifestations or medical expert testimony was necessary. The jury can rely on their own experience and the other evidence instead.

Does that mean it's any easy claim to tack on for bonus points? Not necessarily. In the 2009 case, the plaintiff's deceased baby was stuck, halfway in her body, mid-delivery, for over an hour. Emotional trauma seems like a certainty in such a situation.

For Ms. Spears, though the alleged attack would certainly be upsetting at the time and cause severe physical pain, it's going to take some pretty extreme testimony to sustain such a claim. Recurrent nightmares about rouge ninja restaurant employees beating her to a living pulp might suffice, but it'll depend on whether the jury buys it.

Related Resources:


Consult a Chicago Personal Injury Attorney (FindLaw)
CDC Attacks (Defames?) Fast Food With Questionable Stats (FindLaw's Chicago Personal Injury Law Blog)
Pretty Pleading: Victims Record Cop, Get Arrested, and Sue (FindLaw's Chicago Personal Injury Law Blog)
ConAgra's Hebrew National Not Kosher, Says Former Employee (FindLaw's Chicago Personal Injury Law Blog)


The Chicago Personal Injury Law Blog

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Jury finds ex-Rep. Stetler guilty of all counts

HARRISBURG, Pa. (AP) - A former state representative and Pennsylvania revenue secretary is guilty of all six charges after his trial on official corruption charges.
TheLegalIntelligencer.com

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Commonwealth Ct. Greenlights Class Action Against Corbett

A split en banc Commonwealth Court panel has allowed a class action suit over the redirection of tobacco settlement funds from the now-defunct adultBasic health insurance program to proceed against state Governor Tom Corbett, Budget Secretary Charles Zogby and, to a lesser extent, the General Assembly.
TheLegalIntelligencer.com

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Defense Lawyer in D.C. Found Guilty in Fake Evidence Scheme

A federal judge on June 22 found a longtime criminal defense lawyer in Washington guilty for his lead role in a scheme to fabricate evidence, a win for prosecutors in a closely watched case that raised concern in the defense bar.
TheLegalIntelligencer.com

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Costco Awarded Attorney Fees in Copyright Battle

A California federal judge awarded nearly $ 397,000 to Costco Wholesale Corp. for attorney fees it spent battling watchmaker Omega S.A.'s eight-year infringement suit against the warehouse club retailer, ruling that Omega's actions constituted copyright misuse.
TheLegalIntelligencer.com

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$48 Mil. Asbestos Verdict Includes Punitive Damages

A Los Angeles jury has awarded $ 48 million to a California man and his wife after he was diagnosed with mesothelioma attributed to his exposure to asbestos while working on construction sites in Los Angeles during the 1960s and 1970s.
TheLegalIntelligencer.com

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Connolly Bove Preparing for Breakup, Sources Say

Connolly Bove Lodge & Hutz, one of the oldest law firms in Wilmington, Del., is preparing to break up, splitting its intellectual property and commercial litigation practices into two separate independent entities, according to sources in the Delaware legal community.
TheLegalIntelligencer.com

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Third Circuit Hears Arguments in Case Brought by Ex-PHA Employee

Vincent Morris, who had been an executive assistant in the Philadelphia Housing Authority, brought his whistleblower claims to the U.S. Court of Appeals for the Third Circuit, which heard arguments on Tuesday morning in a case that counsel on both sides said might widen the circuit's allowance for government whistleblowers.
TheLegalIntelligencer.com

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Wolf Block Argues Letters to Insurance Co. Are Privileged

Correspondence between Wolf Block's outside counsel and the defunct firm's insurance carrier about the merits of a legal malpractice suit against the firm is "core" attorney work product that should not be turned over to the plaintiff, an attorney for Wolf Block argued before the Pennsylvania Superior Court on Tuesday.
TheLegalIntelligencer.com

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Did Harvey Police Officer Use Excessive Force, Cause Miscarriage?

Kwamesha Sharp, 17, claims that she was attacked by the Harvey Police Department. She had just left a doctor's appointment and was heading to a friend's house. When she arrived, there was a commotion. When she tried to figure out what was happening, an officer tackled her, reports ABC 7.

Normally, this would fly under the radar. Cops tackle people all of the time. Usually, there's little or no damage, beyond hurt feelings. Unfortunately, Sharp was pregnant with her second child.

Sharp said that she notified the officer of her pregnancy and then tried to stay on her side while being restrained. The officer flipped her over and put his knee on her stomach, pinning her, and her unborn child to the ground. She claims that she was denied medical attention once she was thrown into the squad car.

She miscarried a week later.

The police department sees things differently. They told ABC that they responded to an assault call. Sharp attempted to physically interfere with the investigation by hitting and kicking Officer Jones. Officer Jones did not use excessive force and was unaware that Sharp was pregnant, according to the police.

So, who do you believe? Most of these cases come down to "he said, she said."

However, Harvey PD has a problematic past. Earlier this year, the Department of Justice finished an investigation into the department and stated that it has "serious concerns regarding the potential for excessive uses of forces by Harvey Police Department officers."

So, a police department with violent tendencies allegedly got excessively violent with a pregnant woman. We've seen a lot of these excessive force cases lately.

When an officer uses force beyond that which is necessary to effectuate the arrest and protect herself from danger, an excessive force lawsuit becomes a strong possibility.

The most common type of lawsuit in police misconduct cases is the Section 1983 lawsuit, which simply alleges that the victim's civil rights were violated. Section 1983 of the U.S. Code makes it unlawful for anyone, under the color of law, to deprive someone of their rights guaranteed by the Constitution or federal law.

Typically, claims such as false arrest, malicious prosecution, and excessive force are tacked on to the Section 1983 lawsuit.

Related Resources:


Talk to a Chicago Personal Injury Attorney (FindLaw)
Pretty Pleading: Victims Record Cop, Get Arrested, and Sue (FindLaw's Chicago Personal Injury Law Blog)
Pregnant Woman Tasered, Arrested Over Parking Ticket (FindLaw's Chicago Criminal Law Blog)
Suit: Police Beat Four Men in Bar Room Brawl (FindLaw's Chicago Personal Injury Law Blog)


The Chicago Personal Injury Law Blog

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Tape: Sandusky's adopted son talks of sex abuse

STATE COLLEGE, Pa. (AP) - Jerry Sandusky's son describes being sexually abused as an 8-year-old boy by the former Penn State assistant coach on a police interview tape obtained by NBC News.
TheLegalIntelligencer.com

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Judge Holds Off on Granting House Arrest for Lynn - For Now

Philadelphia Court of Common Pleas Judge M. Teresa Sarmina said during a hearing today that she would consider releasing Monsignor William J. Lynn on house arrest if Lynn would waive his right to fight extradition and if it could be established that the Vatican would honor such a waiver.
TheLegalIntelligencer.com

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Supreme Court Trims Arizona Immigration Law

The U.S. Supreme Court on Monday narrowed the scope of Arizona's tough anti-immigration law, but left in place a controversial provision allowing police to check the immigration status of people they detain.
TheLegalIntelligencer.com

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Federal Court OKs 'In Futuro' Clause in UIM Waiver Case

The inclusion of an "in futuro" clause on an automobile insurance policy's uninsured motorist benefits waiver that applied the waiver to any replacement policies or renewals doesn't void the waiver, a federal judge has ruled.
TheLegalIntelligencer.com

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Indicting Grand Juries to Impact Few Cases, Attorneys Say

The state Supreme Court's adoption last week of indicting grand juries for cases involving witness intimidation won't change criminal-law practice very much, except in a minority of cases, practitioners say.
TheLegalIntelligencer.com

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Legal Profession: New PAJ President: Sandusky Case Provides Legislative Lessons

For state legislators opposed to adding exceptions to the newly enacted Fair Share Act, which brought sweeping changes to the state's joint and several liability doctrine last year, the new president of the Pennsylvania Association for Justice said the Penn State sex-abuse scandal is Exhibit A.
TheLegalIntelligencer.com

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Energy Law: Pipeline Ruling Gives Attorneys Guidance on FERC Reviews

Energy and environmental lawyers across the state said a recent ruling by the U.S. Court of Appeals for the Second Circuit allowing the construction of a 39-mile long, 30-inch wide natural gas pipeline through Northern Pennsylvania to proceed provides some guidance as to the Federal Energy Regulatory Commission's standard of review.
TheLegalIntelligencer.com

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Lawyers Await Freeh Report in Potential Civil Actions Against PSU

Lawyers representing the victims of former Penn State assistant football coach Jerry Sandusky said an external investigation's results and Penn State's willingness to resolve each claim individually will affect the university's ability to avoid litigation related to the scandal.
TheLegalIntelligencer.com

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Keeping David decent

         A reader was amused by the column on Longboat Key Town Hall's rejection of a painting of semi-nude women. "It made me laugh and wonder at the same time: Have any of these people who rejected it been to the beach lately or watched prime time TV?" asked Walt Parlow.    He attached a photo of a special child-protection precaution taken at the Visual Arts Center in Punta Gorda for a children’s art show, where a version of the… Read More »
Tom Lyons: The Blog

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High court rejects much of Arizona immigration law

WASHINGTON (AP) -The U.S. Supreme Court on Monday struck down key provisions of border state Arizona's harsh crackdown on immigrants, one of the most divisive domestic issues separating President Barack Obama from his Republican challenger Mitt Romney.
TheLegalIntelligencer.com

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Stevens & Lee Caught Up in Conflicts Problem in Dropbox Suit

U.S. District Judge Timothy J. Savage of the Eastern District of Pennsylvania granted Stevens & Lee's motion to withdraw as counsel for a recently terminated partner, but as a consequence the firm may now have to withdraw as its own counsel, too.
TheLegalIntelligencer.com

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Litigation: Considering Unavailability When Drafting Arbitration Agreements

In his article in The Legal Charles Forer explained that if a party to an arbitration agreement retains the right to make a retroactive change, the agreement to arbitrate may be considered illusory and no longer binding.
TheLegalIntelligencer.com

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GC Mid-Atlantic: Advertisements May Be Dangerous to Your Company's Wealth

When Vibram, the “FiveFinger” shoe company, was hauled into federal court in Boston in late March, it became the latest prominent business swept up in the growing wave of consumer class actions based on false advertising claims.
TheLegalIntelligencer.com

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Immigration Law: Ensuring Compliance or Discouraging International Students?

It is calculated that international students contributed more than $ 20 billion to the U.S. economy last year, and over $ 965 million to the Pennsylvania economy. While the value of international education and exchange has long been recognized in the United States, the welcome we extend has always been tempered by a regulatory regime that controls which students are allowed to enter the United States, regulates the conditions under which they are allowed to stay, and enforces the requirement that they depart when they terminate their studies.
TheLegalIntelligencer.com

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Paralegals Page: Paralegal Ethics: Avoiding the Unauthorized Practice of Law

They are out there. Perhaps you have encountered a paralegal engaging in the unauthorized practice of law (UPL).
TheLegalIntelligencer.com

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Young Lawyer: Firms Finding New Ways to Groom Young Recruits

Law firm leaders talk about the tectonic changes reshaping the legal job market, but when it comes to summer associate programs, surprisingly little has changed.
TheLegalIntelligencer.com

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Law Technology News: Cooperation and Electronic Data Discovery

I attempted a little humor in my recent article on cooperation during electronic data discovery for the Richmond Journal of Law and Technology. The article ended with this list of suggestions for elementary school teachers to promote cooperation among children. I thought it might be helpful in case there are some lawyers who did not learn these skills as youngsters.
TheLegalIntelligencer.com

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Healthcare Law: OIG Disapproves Two Anesthesia Service-ASC Arrangements

In an important June 1 advisory opinion (Number 12-06), the Department of Health and Human Services (HHS), Office of the Inspector General (OIG) declined to approve two different proposed arrangements between an anesthesia services provider and ambulatory surgical centers (ASC). The OIG ultimately concluded that the proposed transactions "could potentially generate prohibited remuneration under the anti-kickback statute and that the OIG could potentially impose administrative sanctions" if the requisite intent were present.
TheLegalIntelligencer.com

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Google Accused of Infringing CYBERsitter Trademark

A California company that recently settled a $ 2.2 billion copyright lawsuit over its filtering software has turned its sights on Google Inc., claiming that the search engine company profited from posting ads that infringe on its trademarks.
TheLegalIntelligencer.com

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Suit Challenges Dodd-Frank Act, Creation of CFPB

A Texas community bank on June 21 will file what lawyers say is the first suit directly challenging the constitutionality of the Dodd-Frank Act and the creation of the Consumer Financial Protection Bureau.
TheLegalIntelligencer.com

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Employment: Employee Attendance Requirements Raise ADA Issues

Employees discharged because of poor attendance sometimes claim that the employer violated the Americans with Disabilities Act (ADA) when the employee's absences resulted from a disability.
TheLegalIntelligencer.com

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Litigation: Appropriate Jury Trial Limitations Found in Nursing Home Contracts

This paper published Shayna Slater's article, "Mandatory Arbitration Clauses: A Sneaky Secret of Nursing Homes," and has agreed to permit this author to respond.
TheLegalIntelligencer.com

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Fresh Ink: Inside Today's Legal - June 19

Can't find a paper, but want a sneak peek at the stories inside The Legal this morning? Consider this your personal delivery service.
TheLegalIntelligencer.com

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Why 'Tone at the Top' is Essential in Preventing Employee Fraud

I was recently involved in a fraud investigation of the CFO of a privately held company that spent years following the directives of the majority shareholder to run the majority shareholder?s personal and/or nonexistent expenses through the company.
TheLegalIntelligencer.com

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Fresh Ink: Inside Today's Legal - June 20

Can't find a paper, but want a sneak peek at the stories inside The Legal this morning? Consider this your personal delivery service.
TheLegalIntelligencer.com

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Breaking News: Pa. Supreme Court Adopts Indicting Grand Juries

The state Supreme Court adopted rules today that will provide another avenue for prosecutors to bring charges against criminal defendants. Instead of just filing charges and going through preliminary hearings, prosecutors will now able to indict defendants through indicting grand juries.
TheLegalIntelligencer.com

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Why Witness Preparation Should Start With the Basics

All too often we are presented with the challenge of a difficult witness who seems intent on doing more damage than good for the case. It?s the corporate executive impatient with being on the receiving end of a question. It?s the medical professional personally offended by having his or her care criticized. It?s the person scared to the point of anger who doesn?t understand why he or she is involved in the case and is afraid of the outcome.
TheLegalIntelligencer.com

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Settlement Could Cost Facebook Company Up to $103 Million in Revenue

TheLegalIntelligencer.com

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'Sexual Contact' Need Not Be Physical, Panel Rules in Sentencing Case

Masturbation qualifies as "sexual contact" under federal sentencing guidelines, the U.S. Court of Appeals for the Third Circuit has ruled.
TheLegalIntelligencer.com

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$8.75 Million Settlement for Man Injured After Three-Story Fall

A man who broke his neck, back and hip and suffered severe brain damage after falling 35 feet to the ground while climbing a wooden utility pole as part of an interview for an electrical lineman position with Metropolitan Edison Co. has settled with the company for $ 8.75 million.
TheLegalIntelligencer.com

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Insurers Need Not Cover Powell in 'Kids-for-Cash' Suits

The second in a pair of opinions in as many days from the U.S. Court of Appeals for the Third Circuit held that insurers are not responsible for defending or indemnifying a juvenile-detention center operator who was involved in the "kids-for-cash" scandal in Luzerne County.
TheLegalIntelligencer.com

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Ex-Penn St. Assistant Sandusky Convicted of Abuse

Jerry Sandusky was convicted Friday of sexually assaulting 10 boys over 15 years, accusations that shattered the Happy Valley image of Penn State football and led to the firing of Hall of Fame coach Joe Paterno.
TheLegalIntelligencer.com

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Ark. Court strikes down execution law

LITTLE ROCK, Arkansas (AP) - The Arkansas Supreme Court struck down the state's execution law Friday, calling it unconstitutional.
TheLegalIntelligencer.com

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Wis. Court upholds damages in drug lawsuit

MADISON, Wis. (AP) - The Wisconsin Supreme Court on Friday upheld damages that were awarded in a lawsuit the state brought against a prescription drug company accused of inflating prices.
TheLegalIntelligencer.com

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Vicente Cardenas' Tragic Death: Res Ipsa Loquitor?

Though we talked about the tragic death of 4-year-old Vicente Cardenas earlier this week when discussing pool safety, at the time, there wasn’t enough information to even began to speculate on the legal implications of his accidental death. Now, after a few more days, a tragic tale has emerged of an unsupervised child who didn’t know how to swim and the series of safeguards that failed to protect him.

The family, desperate for answers, is planning to file a lawsuit in the coming days, reports ABC 7. There are lots of questions surrounding Vicente’s death. How does a 4-year-old get into a pool without a life jacket? How does that same child end up in the fetal position under five feet of water? And how do numerous lifeguards and chaperones all fail to notice and prevent the little boy’s death?

There’s a related legal concept. In cases where fault is difficult to prove, yet obvious, the Latin phrase, res ipsa loquitor applies. It roughly translates to “the thing speaks for itself”. In short, negligence is obvious from the circumstances and it is therefore not necessary to prove fault.

Such a concept would be dangerous if widely used. Someone breaks an ankle while jogging? It’s obvious that it was the city’s fault for not maintaining their sidewalks properly. Someone else gets rear-ended. It’s obvious that the brakes were faulty for not stopping quickly enough.

However, in the rarest of rare cases, it really is obvious. The lifeguards had one job: protect swimmers from drowning. The chaperones had one job: protect children from drowning. When a 4-year-old child who cannot swim ends up unconscious, in the fetal position, in the deep end of the pool, without a life jacket, two redundant safeguards have failed and both parties’ negligence speaks for itself.

At least, that’s an argument that could be made based on the reported facts.

Related Resources:


Contact a Chicago Personal Injury Attorney (FindLaw)
Family of drowned boy demands answers (Chicago Tribune)
Res Ipsa Loquitur (FindLaw’s Learn About the Law)
Arlington Heights Explosion Kills One, Injures Ten (FindLaw’s Chicago Personal Injury Law Blog)


The Chicago Personal Injury Law Blog

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Jury Finds Lynn Guilty of One of Three Charges, Hung on Brennan

Twelve Philadelphia jurors today said they were firm in finding that a Catholic Church official had endangered the welfare of a 10-year-old altar boy when he was sexually assaulted by a priest who the official recommended for his clerical assignment.
TheLegalIntelligencer.com

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Sandusky jury rehears Penn St. assistant testimony

BELLEFONTE, Pa. (AP) - Jurors in Jerry Sandusky's child sex abuse trial listened again to testimony from a key prosecution witness Friday as they began their second day of deliberations in the former Penn State assistant football coach's high-profile case.
TheLegalIntelligencer.com

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Duquesne Settles Discrimination Case With Law Professor

Duquesne University has settled the last of three lawsuits brought against it by law professors alleging they were discriminated against for various reasons when they were passed over for promotions or demoted.
TheLegalIntelligencer.com

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Letter to the Editor: Proposed Changes to Length for State Court Briefs Could Prove Problematic

I had hoped to comment on the article about word count, "Rule Change on Length Contemplated for State Court Briefs," published June 6 in The Legal.
TheLegalIntelligencer.com

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'Kids-for-Cash' Developer Not Covered by Insurance

The U.S. Court of Appeals for the Third Circuit ruled that Travelers Property Casualty Co. of America is not obligated to defend or indemnify Robert Mericle in suits stemming from the "kids-for-cash" scandal in Luzerne County.
TheLegalIntelligencer.com

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Claims of Malicious Prosecution Over 'Kids-for-Cash' Dashed

The state Superior Court said in an unpublished decision issued Thursday that a business partner in the juvenile detention facilities at the center of the Luzerne County judicial scandal cannot sustain his malicious prosecution claims against the Juvenile Law Center and the law firm of Hangley Aronchick Segal Pudlin & Schiller.
TheLegalIntelligencer.com

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Pa. Medicaid Trust Law Pre-empted, Third Circuit Rules

The bulk of a Pennsylvania law governing the eligibility and administration of pooled trusts for Medicaid recipients is pre-empted by federal law, the U.S. Court of Appeals for the Third Circuit ruled.
TheLegalIntelligencer.com

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High court throws out Southern Union's $18M fine

WASHINGTON (AP) - The Supreme Court threw out an $ 18 million penalty Thursday against a natural gas company convicted of violating an environmental law.
TheLegalIntelligencer.com

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Sandusky's Fate Handed Over to Jury

If former Penn State assistant football coach Jerry Sandusky did what he's been charged with, he should "rot in jail for the rest of his life," his attorney told the jury today.
TheLegalIntelligencer.com

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The Philadelphia Association of Paralegals Calendar of Events

The membership committee meeting is set for noon today at Berner Klaw & Watson, 1528 Walnut St., Suite 1100. Contact Sharon DeNofa (sdenofa@lucascavalier.com) to learn more about this committee.
TheLegalIntelligencer.com

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Cooley Representing LinkedIn in Stolen Password Lawsuit

Two weeks after hackers stole more than 6 million user passwords on LinkedIn and posted them online, an Illinois woman has filed a $ 5 million suit claiming that the social network for professionals failed to protect its members' information.
TheLegalIntelligencer.com

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Suit Against SEC Over Madoff Investigation Dismissed

A federal judge in Washington has outlined the reasons why he dismissed a suit that sought to hold securities regulators accountable for alleged negligence rooted in the Bernie Madoff fraud scheme.
TheLegalIntelligencer.com

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Waukesha Personal Injury Attorneys in Wisconsin

Wisconsin is situated in north- central United States. Madison is the capital of this place and the state is divided into 72 countries. The word Wisconsin has been derived from Wisconsin River. This river has gained its name by one of the Algonquian speaking American Indian groups. This place has been an abode to various [...]
Maryland Intellectual Property Lawyers Blog

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Law Firms Back K&L Gates in Le-Nature's Trustee Suit

The Pennsylvania Superior Court has accepted an amicus brief from 14 of the state's law firms in support of K&L Gates' bid for reargument of the court's decision to reinstate a $ 500 million malpractice action against the firm by the Le-Nature's trustee.
TheLegalIntelligencer.com

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Stevens & Lee Terminates Lawyer In Dropbox Suit

Stevens & Lee has "terminated its relationship" with William Balaban, the former head of Elliott Greenleaf's Harrisburg office who was sued by his old firm when he joined Stevens & Lee in February.
TheLegalIntelligencer.com

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Buchanan Gets Corporate Health Care Duo

Buchanan Ingersoll & Rooney has added depth to its health care practice in Philadelphia nearly four months after the co-chairman of the firm's group departed for Stevens & Lee.
TheLegalIntelligencer.com

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ConAgra's Hebrew National Not Kosher, Says Former Employee

Hebrew National’s products are marked with a “Triangle K” symbol, which certifies the products as kosher as “defined by the most stringent Jews who follow Orthodox Jewish law.” A handful of consumers, along with former employees, contend in a class action lawsuit filed last month that the mark, and marketing, are a lie, reports Reuters.

According to JTA, the suit alleges:


Knives used in the slaughtering process were nicked. Kosher requires a clean cut.
Organ meat was not consistently inspected after slaughter, as required for kashrut.
The blood of slaughtered animals was not consistently removed within 72 hours, as required by kosher law.
Managers took certificates issued to trained slaughterers and replaced their names with individuals who had not been trained.
Kosher meat was not consistently kept separate from non-kosher meat.

There are also claims of retaliation against employees who complained about the violations of kosher law. AER, the slaughterhouse, allegedly threatened employees with transfers and termination if they continued to press claims. The non-kosher meat would then be repackaged and sent to ConAgra.

Oddly enough, neither AER nor the Triangle K certification organizations are named as co-defendants. Only ConAgra, the company that produces Hebrew National, is being sued at this time.

The class action suit is only seeking compensatory damages in the amount that consumers paid for the allegedly non-kosher products. But is that really enough? What is the proper measure of damages for deceiving customers into consuming food prohibited by their religion?

The present demand is probably the best that a court could do. Damages must be proven. For a class action suit such as this, every person who purchased the hot dogs on allegedly-false promises is represented as part of the class. However, not all consumers keep kosher, nor are all of the hot dog eaters Jewish. So, while consumers may not have received what they were promised, not all were forced to eat meat that violated their religious beliefs.

One would guess that the claims center on a breach of contract theory, which only allows recovery of actual provable damages. The emotional impact of non-holy meat is probably too uncertain to claim on behalf of a class of millions.

Related Resources:


Find a Chicago Personal Injury Attorney (FindLaw)
Health Warnings on Hot Dogs? (FindLaw’s CommonLaw Blog)
$ 180 Million Verdict in ConAgra Silo Explosion (FindLaw’s Chicago Personal Injury Law Blog)
Second Circuit Upholds NY’s Kosher Law (FindLaw’s U.S. Second Circuit Blog)


The Chicago Personal Injury Law Blog

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Defense Rests in Sandusky Trial

Jerry Sandusky - the former Penn State assistant football coach charged with 51 counts of sexual abuse - will not be testifying in his own defense.
TheLegalIntelligencer.com

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Judge Tells Deadlocked Jury in Priest Sex-Abuse Trial to Keep Working

After 11 days of deliberation and over two months of testimony, the jury in the Philadelphia priest sex-abuse trial reported today that they have reached unanimity on one charge but that they have not been able to agree on four other charges.
TheLegalIntelligencer.com

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McQueary Acquaintance: 'He Couldn't Go On'

A family friend who was with Mike McQueary on the night the former graduate assistant claims he saw former Penn State assistant football coach Jerry Sandusky rape a boy testified in open court today that McQueary did not say he saw something sexual going on.
TheLegalIntelligencer.com

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Analysis: For the Justices, It's the Calm Before the Storm

As Supreme Court Justice Elena Kagan
began reading from her decision Monday
morning in a little-noticed Indian land case,
she paused and told the audience her ruling
was "maybe not what you all came for
today."
TheLegalIntelligencer.com

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Job Stats Show More Bad News for Law Graduates

Slightly more than half of the class of
2011 — 55 percent — found full-time,
long-term jobs that require bar passage
nine months after they graduated, according
to employment figures released on Monday
by the American Bar Association.
TheLegalIntelligencer.com

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Rotwitt Acted Outside Partnership in Family Court Deal, Firm Says

Obermayer Rebmann Maxwell & Hippel, the law firm at the center of the First Judicial District's legal malpractice lawsuit over a new family courthouse, is arguing in support of its cross-claims against former partner Jeffrey B. Rotwitt that Rotwitt acted outside of his written partnership agreement by undertaking a development role in the project.
TheLegalIntelligencer.com

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Judge OKs Class Action Against GSK Over Flonase

A federal judge has certified a class of third-party purchasers who allege that GlaxoSmithKline filed "sham" citizen petitions with the Food and Drug Administration that kept generic versions of its nasal spray called Flonase off the market for two years.
TheLegalIntelligencer.com

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Charged Pa. DJ uncovered trooper's lapsed license

PITTSBURGH (AP) - A north central Pennsylvania district judge who is contesting $ 1,000 in fines for illegally accessing the driver's license information of two state troopers was responsible for one of the troopers pleading guilty to driving without a license.
TheLegalIntelligencer.com

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Summer's In Session: Pool Safety

In light of a last week's tragedy, when 4-year-old Vicente Cardenas passed away after drowning in a public pool, it is important to remember to practice pool safety, whether at a public or private pool. Though the toddler's death is still under investigation, he was found in five feet of water, surrounded by lifeguards and staff from his day-care center, reports the Chicago Tribune. It is unclear if any of the children had life jackets.

The Consumer Product Safety Commission (CPSC) recommends the following steps for parents to keep their children safe:



Never leave a child unattended in a pool or spa and always watch your child when he or she is in or near water

Teach children basic water safety tips

Have a telephone close by when you or your family is using a pool or spa

If a child is missing, look for him or her in the pool or spa first

Share safety instructions with family, friends and neighbors

Learn how to swim and teach your child how to swim

Learn to perform CPR on children and adults, and update those skills regularly

Understand the basics of life-saving so that you can assist in a pool emergency

Keep children away from pool drains, pipes and other openings to avoid entrapments

On a related note, all public pools in Illinois, thanks to an October 2011 law, are being upgraded to safer drains that avoid entrapments. Twelve outdoor public pools were closed last weekend for the upgrades; the rest are finished. It is expected that all will be ready and open this weekend, reports the Chicago Sun-Times.

If, instead of public pools, you prefer the privacy of your own yard, the following tips should help to keep you, your children, and neighboring kids safe, as well as shield you from liability for injuries to others.



Install a four-foot or taller fence around the pool and spa and use self-closing and self-latching gates; ask your neighbors to do the same at their pools.

Install and use a lockable safety cover on your spa.

If your house serves as a fourth side of a fence around a pool, install door alarms and always use them. For additional protection, install window guards on windows facing pools or spas.

Install pool and gate alarms to alert you when children go near the water

Ensure any pool and spa you use has compliant drain covers, and ask your pool service provider if you do not know

Maintain pool and spa covers in good working order

Consider using a surface wave or underwater alarm

For more information, check out the CPSC's Pool Safety website. Stay cool and stay safe.

Related Resources:



Find a Chicago Personal Injury Attorney (FindLaw)

Rodney King Autopsy Underway After Drowning (FindLaw's Law and Daily Life)

Man Awarded $ 4M for Diving Into Shallow End (FindLaw's Chicago Personal Injury Law Blog)

Grill Masters: Beware the Bristles of the Barbeque Brush! (FindLaw's New York Personal Injury Law Blog)


The Chicago Personal Injury Law Blog

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Third Circuit OKs 'Mixed Motivations' Instruction in Ethnic-Intimidation Case

The federal jury that convicted two young men of violating the Fair Housing Act when they beat a Hispanic man to death in 2008 was properly instructed to consider "mixed motivations," the U.S. Court of Appeals for the Third Circuit has ruled on an issue of first impression in the circuit.
TheLegalIntelligencer.com

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Senators request live TV for health care ruling

WASHINGTON (AP) - Leaders of the Senate Judiciary Committee are asking the Supreme Court to allow live television coverage when it delivers its ruling on President Barack Obama's health care overhaul.
TheLegalIntelligencer.com

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3rd Circuit Removes Judge in Case Against Ex-N.J. Prosecutor

A federal appeals court has bounced U.S. District Judge William Martini of the District of New Jersey from the murder-conspiracy and racketeering case against former prosecutor Paul Bergrin, finding the judge's impartiality "might reasonably be questioned."
TheLegalIntelligencer.com

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Interrogatories From Another Asbestos Case Not Hearsay

The state Superior Court has concluded that an asbestos plaintiff's use of interrogatories prepared for a California case in the 1980s — and submitted in an Allegheny County Court of Common Pleas case — was not inadmissible hearsay.
TheLegalIntelligencer.com

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Open Records: Agencies May Not Ignore Improperly Submitted Records Requests

A deeply divided Commonwealth Court has ruled that records requests are still governed by the Right-to-Know Law even if they're not submitted on the designated agency form or to the designated agency officer.
TheLegalIntelligencer.com

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Criminal Practice: Surreal Nature of Sandusky Trial Takes Captivating Form During Witness Accounts

At the beginning of last week, a seemingly endless fleet of national media, local press, and everyone in between came to Bellefonte, Pa., for one of the most anticipated criminal prosecutions in recent memory.
TheLegalIntelligencer.com

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Sandusky Jury to Be Sequestered; Trial Could End This Week

The jury deciding the fate of former Penn State assistant football coach Jerry Sandusky will be sequestered during deliberations, the judge presiding over his trial said Monday.
TheLegalIntelligencer.com

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Eurozone Crisis Impacting Pa. Firms, Too

When U.S. law firms open offices in Europe or Asia, hires are typically in the international corporate and finance realm, as the firms either aren't allowed to or don't want to do local litigation work.
TheLegalIntelligencer.com

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High court says no OT pay for drug sales reps

WASHINGTON (AP) - The Supreme Court has ruled that sales representatives for pharmaceutical companies do not qualify for overtime pay under federal law, a big victory for the drug industry.
TheLegalIntelligencer.com

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High court sides with state in DNA case

WASHINGTON (AP) - The Supreme Court on Monday upheld a rape conviction over objections that the defendant did not have the chance to question the reliability of the DNA evidence that helped convict him.
TheLegalIntelligencer.com

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Young Lawyer: Shingle Hanging 201: Arguing in Front of the Third Circuit

My friend told me to be brief and to be brilliant, and that I would do just fine.
TheLegalIntelligencer.com

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Fresh Ink: Inside Today's Legal - June 18

Can't find a paper, but want a sneak peek at the stories inside The Legal this morning? Consider this your personal delivery service.
TheLegalIntelligencer.com

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Law Technology News: The Benefits of Timeshare Staffing

We've all been there. A dishwasher gushing water all over your beautiful new kitchen floor. A dead battery, conveniently discovered just as you need to leave for an important appointment. Or coming to the realization that the glorious shade of golden brown you selected to adorn your 18-foot vaulted-ceiling entry 13 years ago no longer qualifies your estate for potential inclusion in Architectural Digest.
TheLegalIntelligencer.com

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Antitrust Law: Health Care Mergers: Time for the Supreme Court to Jump in?

Health care mergers, particularly hospital mergers, have been at the epicenter of the increase in antitrust activity in the health care industry over the past few years. The Department of Justice and the Federal Trade Commission, as well as state attorneys general, are focusing their attention on the health care industry, with a particular interest in monitoring, and often blocking, hospital mergers. Now, it looks like the U.S. Supreme Court might get involved in the debate. The DOJ and FTC's increased scrutiny of hospital mergers has a hospital merger poised to possibly be the first merger matter taken on by the Supreme Court in more than 30 years, which could alter the antitrust landscape.
TheLegalIntelligencer.com

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Thomson Reuters Acquires Apsmart for Mobile Development

Thomson Reuters has acquired Apsmart, a mobile applications development company, officials announced earlier this month.
TheLegalIntelligencer.com

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Minor's Sexting Inadmissible in Sex-Abuse Trial, Court Says

A minor girl's sexually explicit Internet communications to other men are not admissible in a sexual-abuse trial, the New Jersey Supreme Court ruled June 14.
TheLegalIntelligencer.com

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Players' Antitrust Claims Against NFL Thrown Out of Court

A federal judge has dismissed an antitrust action brought on behalf of retired professional football players who accused the National Football League of monopolizing the market for DVDs, videos and films featuring their names and likenesses.
TheLegalIntelligencer.com

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Nearly 2,000 Seek to Register Top-Level Domains

Eleven applicants for generic top-level domain names believe there's no domain like ".home." But even more — 13 — are ".app"-happy, seeking to register that term, made popular by iPhones and Droids, as a domain name
TheLegalIntelligencer.com

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Off-Label Marketing Complaint Against Cephalon Survives

Allegations that Cephalon illegally marketed its pain medication called Actiq have survived a motion from the drug company requesting that the court reconsider its denial of summary judgment issued a year ago.
TheLegalIntelligencer.com

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Asset Management: Charitable Donations Require Attention to Both Form and Substance

In the recently decided case of Mohamed v. Commissioner, TC Memo 2012-152 (5/29/2012), the Tax Court denied taxpayers a charitable deduction for a donation of real property with a value in excess of $ 18 million that a husband and wife contributed to their charitable trust.
TheLegalIntelligencer.com

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Bankruptcy Update: Justices Affirm Secured Creditor's Right to Credit Bid

On May 29, the U.S. Supreme Court issued a unanimous decision holding that a debtor cannot obtain confirmation of a Chapter 11 "cramdown" plan that provides for the sale of collateral free and clear of a secured creditor's lien without permitting the lienholder to credit bid at the sale.
TheLegalIntelligencer.com

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More Questions, No Verdict in Phila. Priest Sex-Abuse Trial

As jurors in the Philadelphia priest sex-abuse trial undertook a half-day of deliberations, they asked three questions.
TheLegalIntelligencer.com

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Fresh Ink: Inside Today's Legal - June 12

Can't find a paper, but want a sneak peek at the stories inside The Legal this morning? Consider this your personal delivery service.
TheLegalIntelligencer.com

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Day 7: Attorneys Argue Over Giving Church Trial Testimony to Jury

When the jury deliberating for the seventh day on the Philadelphia priest sex-abuse trial asked for the canonical trial testimony of alleged victim M.B., defense attorney William Brennan said the testimony should not be given nor read to the jury.
TheLegalIntelligencer.com

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Sharp Exchange Between Lawyers Marks Day Seven of Priest Abuse Trial Deliberations

At the end of the seventh day of jury deliberations in the Philadelphia priest sex-abuse trial, the jury asked for an alleged sex-abuse victim?s two-day testimony to be read back to them, as well as the alleged victim?s mother?s testimony and the interview done by a church investigator with the priest who allegedly abused M.B.
TheLegalIntelligencer.com

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Jury Set to Hear From Defense as Sandusky Prosecution Rests

The first thing Jerry Sandusky's lawyer told the jury deciding his client's fate was: "This is a daunting task."
TheLegalIntelligencer.com

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Door to Punitive Damages in Pharma Cases Reopened by FJD

The Philadelphia Court of Common Pleas' program for mass torts will once again allow punitive damages in pharmaceutical cases subject to the approval of the Complex Litigation Center coordinating judges, Judge Sandra Mazer Moss and Judge Arnold L. New, if they "rule that there are sufficient requisite proofs to support the claim going to trial."
TheLegalIntelligencer.com

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Minority- and Women-Owned Firms in Pennsylvania

Each year, we at The Legal publish PaLAW, our report on the legal profession, a magazine packed with surveys, charts, analysis and projections. One of the key parts of PaLAW is our listing of the minority- and women-owned law firms in Pennsylvania. Our goal is always to make the free listing as complete as possible from firms across the state, and to do that we need your help.
TheLegalIntelligencer.com

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On Day 8 of Deliberations, Priest Sex-Abuse Trial Jurors Ask About Intent, Conspiracy

As jurors in the Philadelphia priest sex-abuse trial ended their eighth day of deliberations, they asked the trial judge that if endangering the welfare of a child was the result of criminal conspiracy, does that crime have to have been the intent of participants in the conspiracy.
TheLegalIntelligencer.com

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Drafting a Nonprofit Organization's Social Media Policy

Lawyers often find themselves representing nonprofit organizations or serving on nonprofit boards. When the issue of a social media policy arises, it is important to understand how social media has changed the communication landscape and the critical elements of a policy. It is not practicable, advisable or even legal in some cases to prohibit or unduly restrict the social media activities of employees. Guidelines for acceptable use, however, are crucial to mitigating the risks inherent in social media engagement. Here are a few FAQs regarding drafting a nonprofit?s social media policy.
TheLegalIntelligencer.com

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NM Supreme Court Justice Patricio Serna retiring

SANTA FE, N.M. (AP) - New Mexico Supreme Court Justice Patricio Serna is retiring from the state's highest court after serving 16 years.
TheLegalIntelligencer.com

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Ethics problems lose edge as re-election issue

WASHINGTON (AP) - Nearly a dozen lawmakers seeking re-election are caught up in federal or congressional investigations that are perfect fodder for campaign foes and free-spending outside groups.
TheLegalIntelligencer.com

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Hospital Does Drug Study on Patients Without Them Knowing

There are a lot of safeguards in place to protect study participants. Before a drug study can actually go forward, it usually has to be presented to an Institutional Review Board (IRB), who checks the study against FDA regulations. The FDA also reviews studies that meet certain guidelines.

After those two agencies sign off, the patient still has to give informed consent and sign a waiver. Oak Brook-based Advocate Health Care kinda skipped all of that, reports the Chicago Tribune.

To be fair, they did present the study to their IRB. However, that was before they decided to introduce the drug component on live patients in a clinical setting. When they made that minor change, the IRB apparently didn't notice, and didn't notify the FDA.

More importantly, they didn't notify the patients.

So the hospital would inject the unknowing patient with either etomidate or midazolam prior to intubating. Both drugs are sedatives. The former was being studied for its possible use in the emergency room.

There were 122 patients in the study. There is no indication as to whether there were any adverse effects on any of the patients, though none were presented with a waiver or told of the study.

AHC compounded their problems with the FDA by neglecting to come clean to the study participants. Part of their "corrective plan" that they submitted to the FDA included a letter to the participants explaining the study.

However, probably on the advice of counsel, they did not clearly explain in the letter that the subject was enrolled in a study (without their consent) and the letter also omitted information that would have been required in the waiver, such as risk to the patient, had the waiver ever actually been done properly.

Because there was no consent to use the experimental treatment, battery claims are certainly a strong possibility. Unwanted medical treatment has resulted in battery claims before, and "medical battery" is recognized in almost all states.

In addition, since intubation is done on patients that are usually in serious condition and having trouble breathing, it is possible that some of the patients who received the experimental drug died, (though more likely from the underlying condition that brought them in to the hospital).

However, if the results of the study come out negative for the drug, you can be sure that a rash of wrongful death lawsuits, legitimate or not, will be filed on behalf of the deceased.

Related Resources:


Find a Chicago Personal Injury Law Attorney (FindLaw)
Participating in Research (Advocate Health Care)
Medical Malpractice FAQ (FindLaw's Learn About the Law)
Medical Malpractice Overview (FindLaw's Learn About the Law)
James Tyree's Estate Reaches $ 10M Settlement with U of Chicago (FindLaw's Chicago Personal Injury Law Blog)


The Chicago Personal Injury Law Blog

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Abuse victims elsewhere riveted by Sandusky trial

NEW YORK (AP) - The Penn State sex abuse trial has been wrenching - and sometimes heartening - for people who were themselves victims of abuse in their youth.
TheLegalIntelligencer.com

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Babst Calland Opens Ohio Office in Response to Drilling Industry Shift

Pittsburgh-based Babst Calland has opened an Akron, Ohio, office in hopes of better serving its clients in a natural gas industry that is largely shifting its focus away from Northeastern Pennsylvania and toward Western Pennsylvania, Ohio and West Virginia.
TheLegalIntelligencer.com

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Wyeth Plotted to Delay Release of Generic Effexor, Suit Says

Two drugstore chains are alleging in federal court that Wyeth Inc., owner of the patent on the antidepressant Effexor XR, conspired illegally with another drugmaker to delay introduction of a generic substitute.
TheLegalIntelligencer.com

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Apple to Face Class Action Over Mobile Tracking

Apple Inc. will face a proposed class action accusing the company of letting advertisers track users' activity without their permission, a federal judge ordered Tuesday.
TheLegalIntelligencer.com

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Ex-Dewey & LeBoeuf Partner Sues Former Leaders

In a lawsuit filed Tuesday in California state court, former Dewey & LeBoeuf partner Henry Bunsow is accusing multiple Dewey leaders — including longtime Chairman Steven Davis — of committing fraud by lying about the true state of the now-bankrupt firm's finances.
TheLegalIntelligencer.com

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Del. Whistleblowers Act Doesn't Reach Out-of-State Workers

A federal judge has ruled that Delaware residents cannot bring claims under the state's Whistleblowers' Protection Act if they were not employed in Delaware during the alleged wrongdoing.
TheLegalIntelligencer.com

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3rd Circuit Tosses Title Insurance Price-Fixing Cases

New Jersey and Delaware title insurance companies didn't violate antitrust laws when they set their rates with government agencies, the U.S. Court of Appeals for the Third Circuit held in a pair of similar opinions released Thursday.
TheLegalIntelligencer.com

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As Eastern District Vacancies Grow, Reinforcements Unlikely

By mid-July, a quarter of the seats on the bench in the Eastern District of Pennsylvania will be empty, Chief Judge J. Curtis Joyner told The Legal on Thursday, because two more judges are expected to take senior status, bringing the number of vacancies in the district to six.
TheLegalIntelligencer.com

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Board holding off on 2nd Philly casino license

PHILADELPHIA (AP) - The state's gaming board is still holding off on a decision about what to do with the second casino license currently slotted for Philadelphia.
TheLegalIntelligencer.com

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Attorneys Say Drillers Moving Out of Northeastern Pa.

The financial woes plaguing the nation's second-largest natural gas explorer, Chesapeake Energy Corp., have made for headline fodder recently, but some Pennsylvania energy attorneys said the company's problems are indicative of a larger trend.
TheLegalIntelligencer.com

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Officer: Sandusky should have been charged in 1998

BELLEFONTE, Pa. (AP) - A police detective who investigated Jerry Sandusky in 1998 says he still believes charges should have been filed then, but the district attorney didn't do so.
TheLegalIntelligencer.com

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Judge Won't Recuse From Orie Melvin's Disciplinary Case

Early in Tuesday's Court of Judicial Discipline hearing over suspended state Supreme Court Justice Joan Orie Melvin's pay, Magisterial District Judge Charles A. Clement Jr. denied the justice's request for his recusal.
TheLegalIntelligencer.com

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Corbett Nominates Six for Pa. Judicial Vacancies

Another governor, another crop of judicial nominations made despite a judiciary request for a moratorium on filling vacancies.
TheLegalIntelligencer.com

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FJD Seeks Medical Exam of Ex-Justice In Malpractice Case

The First Judicial District's counsel in the court's legal malpractice lawsuit against the former lawyer on the Philadelphia family courthouse deal is seeking to compel the medical examination and the production of medical records of former Supreme Court Justice Sandra Schultz Newman after unsuccessfully seeking to depose the ex-jurist since November.
TheLegalIntelligencer.com

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Phila. Courts Planning Move to Risk Model for Bail

Philadelphia criminal court leadership plans to develop a statistically based model of the risk defendants pose of committing a crime or of failing to appear in court in a new bail guideline regime.
TheLegalIntelligencer.com

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Fresh Ink: Inside Today's Legal - June 13

Can't find a paper, but want a sneak peek at the stories inside The Legal this morning? Consider this your personal delivery service.
TheLegalIntelligencer.com

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South Park's 'What What (In the Butt) Parody Ruled Fair Use

In 2008, South Park released another of their typically absurd, yet sophomorically humorous takes on a contemporary social issue: viral internet videos. The storyline boiled down to Canada going on strike over not receiving any part of the money made from these videos. Meanwhile, nine-year-old Butters is convinced by classmates to make a viral video, entitled “What What (In the Butt)”.

Yep. And it’s exactly what you’d imagine. According to Courthouse News, the odd video satirizes another video and, as Judge Posner put it, is a “paean to anal sex.”



The video, while incredibly weird, isn’t much weirder than the video it satirizes, Samwell’s own “What What (In the Butt).” Take a gander yourself, but be forewarned that it might damage your psyche.



So, what was the issue? After watching both, it’s obvious parody, right? You’d think so, as would most. So did the court. The original court ruled that it was parody, and therefore fair use, but Brownmark Films, who own the rights to the video, maintained that such a ruling could only be made after a full trial.

When cases are as obvious as this, they are often dismissed in summary judgment motions. Summary judgment is a court’s way of saying that the plaintiff is — for lack of legal terms — full of it, and has no case whatsoever.

A judge, deciding whether to dismiss a case in a motion for summary judgment, takes every possible assumption in favor of the plaintiff and weighs whether there is even a chance of a legitimate case. If not, the case is done.

In the lower court case, which was filed in Milwaukee, the court agreed with South Park that the plaintiffs didn’t have a case. The appellate court affirmed the lower court decision earlier this week.

The appellate court also benchslapped Brownmark for their extensive discovery requests, referring to them as “copyright trolls”. The court noted that these cases are often meritless and use the litigation process, including extensive digging through the discovery process, to rack up costs and force a settlement.

What is intriguing is not just the law of the case, but that the message board and internet slang, “troll” has now made it into an appeals court opinion. Justice Posner continues to impress. They also pointed out that by satirizing the video, the South Park creators likely increased traffic to the original, which means more advertising dollars and no real injury.

And if you were still wondering what happened to Canada in the South Park episode, well, we’d hate to be a spoiler. Check out the episode at South Park Studios.

Related Resources:


Find a Chicago Personal Injury Attorney (FindLaw)
Digital Millennium Copyright Act (FindLaw’s LawBrain)
Avoiding Infringement Problems (FindLaw’s Learn About the Law)
Michael Jordan China Lawsuit a Go After All (FindLaw’s Chicago Personal Injury Law Blog)
Angelina Jolie Copyright Lawsuit to be Transferred Out of Illinois? (FindLaw’s Chicago Personal Injury Law Blog)


The Chicago Personal Injury Law Blog

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Cuomo administration signals NY fracking plan

ALBANY, N.Y. (AP) - Landowners along New York's southern border who support natural gas drilling are cheered by reports that the Cuomo administration is considering allowing hydraulic fracturing on a limited basis only in towns that want it.
TheLegalIntelligencer.com

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Police and Taser International Sued Over Vietnam Vet's Death

Two of Robert A. Neill's children have filed suit in federal court almost two years after their father, a 61-year-old Vietnam veteran who suffered from post-traumatic stress disorder, died following multiple releases from a Taser.
TheLegalIntelligencer.com

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NC House environmental committee approves fracking

RALEIGH, N.C. (AP) - North Carolina House committee members have given the green light to a much-debated form of natural gas drilling.
TheLegalIntelligencer.com

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NJ court rules against condo in window sign flap

TRENTON, N.J. (AP) - New Jersey's Supreme Court has sided with a condo resident who was fined for putting campaign signs in his window.
TheLegalIntelligencer.com

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