Posts Tagged ‘Utah’

ADA claim: store wouldn’t let him use inline skates

Peter Jose Smith of Provo, Utah, is suing the Mercado Latino market, saying it violated his accommodation rights under the Americans with Disabilities Act because it wouldn’t let him wear inline skates in the store behind his wheelchair. Store owner Hugo Martinez said Smith, who has sued other local businesses, was asked to comply with the store’s policy against skates after he “was riding quickly in the store and bumped into another customer”. (Ace Stryker, “Disabled Provo man suing Latin market”, Provo Daily Herald, Jul. 18).

We were counting on you for favorable testimony!

A Utah federal court will consider the Pace family’s lawsuit against California anesthesiologist Barry Swerdlow, whom they had earlier hired as an expert witness as part of their medical liability suit against another anesthesiologist, Stephen Shuput, whom they blamed for their late daughter’s death. After agreeing to come on board as an expert for the Paces, Swerdlow examined Shuput’s deposition and concluded that Shuput had met the standard of care; he proceeded to inform Shuput’s lawyers of this, and they quickly got the case dismissed. The Paces then sued Swerdlow for “malpractice, fraud, negligent misrepresentation, breach of fiduciary duty, breach of contract, breach of the implied covenant of good faith and fair dealing, and negligent infliction of emotional distress,” to quote AMNews’s catalogue. Swerdlow conceded that he was new at the expert witness game and that it would probably have been a good idea for him to have read Shuput’s deposition earlier. The EleventhTenth Circuit ruled that a lower court should consider the Paces’s contention that they had suffered legally actionable damages from Swerdlow’s actions. (Bonnie Booth, “Expert who changed mind claims immunity, but plaintiffs still sue”, American Medical News, Apr. 14).

Judge Gorsuch, dissenting from the EleventhTenth Circuit’s ruling, wrote:

Parties already exert substantial influence over expert witnesses, often paying them handsomely for their time, and expert witnesses are, unfortunately and all too frequently, already regarded in some quarters as little more than hired guns. When expert witnesses can be forced to defend themselves in federal court beyond the pleading stage simply for changing their opinions – with no factual allegation to suggest anything other than an honest change in view based on a review of new information – we add fuel to this fire. We make candor an expensive option and risk incenting experts to dissemble rather than change their views in the face of compelling new information. The loser in all this is, of course, the truth-finding function and cause of justice our legal system is designed to serve.

(Decision of the Day, Mar. 5; Karen Franklin, Forensic Psychologist, Mar. 7; The Briefcase, Mar. 7).

Contracts no good in Utah: Rothstein v. Snowbird Corp.

In a 3-2 decision, the Utah Supreme Court has held a liability waiver unenforceable, and permitted a skier to sue a resort for his injuries in a skiing accident, notwithstanding his agreement to the contrary by disingenuously expanding a state assumption-of-the-risk statute for ski resorts to forbid any contractual modification of liability. When even Utah refuses to honor contracts, you know we’re in trouble.

Edited to add: For some reason, multiple commenters who haven’t read the opinion are claiming that the only thing the opinion does is require a signature. Not so: Rothstein explicitly signed a release, and the release only covered negligence (permitting Rothstein to sue for intentional torts). Rothstein realized the benefit of the bargain, by getting season tickets for a considerably cheaper price than he would have been able to if the resort knew he wasn’t going to honor his end of the bargain. The Utah Supreme Court (not an intermediate appellate court) rewrote the agreement retroactively. Consumers are hurt.

October 8 Roundup

So now everybody’s happy

Following breathless press exposes of the “payday lending” business near military bases (they charge high interest rates! It’s a bad deal if you’ve got access to conventional credit!) a new federal law sharply restricts the interest that can be charged to military borrowers. This report from Utah finds lenders responding by simply refusing to make loans to members of the military. A critic of the industry, Linda Hilton of the Coalition of Religious Communities, says she’s glad the option is disappearing and recommends that if service personnel find themselves in financial straits “then they ask their church, military relief groups, family or others for help”. More great moments in predatory lending law: Oct. 17, 2006 (cross-posted from Point of Law; & welcome Marginal Revolution readers).

July 17 roundup

  • Judge Bartnoff declines to reconsider decision against Roy Pearson in dry cleaner pants case [AP/WUSA]
  • Turnabout fair play? Louisville hospital sues trial lawyers, saying they injured its reputation and tried to extort settlement [Courier-Journal]
  • Employer sued for “post-traumatic stress disorder” after pranksters post co-worker’s profile on gay section of [McCullagh, CNet]
  • Former Belleville, Ill. cop sues over prosecutor’s letter suggesting his testimony not to be relied on [M.C. Record]
  • British race relations agency demands removal from shelves of Tintin comic book [Telegraph]; 22-year-old in Scotland sentenced for “racially aggravated breach of the peace” after website commentaries that went “beyond the realms of bad taste” [also Telegraph]
  • Farewell to that little patch of floating liberty, the South Carolina river shack [Zincavage]
  • Hey docs: if a plaintiff’s law firm calls your office to talk about a former patient, don’t call back [Medical Economics via KevinMD]
  • Yale Club replies to Judge Bork’s lawsuit [Turkewitz]
  • Arizona businesses aghast at hiring-sanctions law that suspends their license to operate should supervisor be found to have hired an illegal [Arizona Republic]
  • Grants from Bob Barker foundation (Jul. 5, 2001) help fuel animal rights boom in law schools [NLJ]
  • University of Utah settles lawsuit brought by devout Mormon student actress who refused to recite dramatic lines that were blasphemous or obscene [three years ago on Overlawyered]

19th-century legal doctrine meets 21st-century hedonism and 20th-century litigation tactics

Arthur Friedman announced to his wife, Natalie, after ten years of marriage, that he wanted the couple to engage in group sex and swinging, so he could gratify himself watching his wife have sex with other men. Natalie, however, fell for one of her partners, German Blinov. The two left their spouses and ran off with one another. Arthur sued Blinov under the Illinois alienation of affection laws, and, amazingly enough, won $4802 from a jury that thought the case was stupid. (Steve Patterson, “Putting a price on love”, Chicago Sun-Times, Jul. 1). The former Mrs. Friedman expresses dismay about the award, but it’s not clear whether it’s the fact of the award or the trivial amount that offends her. Chicagoist and Alex Tabarrok are appropriately appalled.

Most states have passed the tort reform of abolishing the alienation of affection cause of action. Earlier on Overlawyered: Nov. 2006 and May 2005 (North Carolina); Nov. 2004 (Illinois); May 2000 (Utah).

Update: Of course, one doesn’t necessarily need that 19th-century cause of action when entrepreneurial lawyers are in play. Recently fired WellPoint CFO David Colby allegedly rotated among several girlfriends he met on a dating website, several of whom he allegedly promised to marry, even as he was married to someone else (albeit separated). One of the ex-girlfriends is suing WellPoint for “facilitat[ing] Colby’s lifestyle”; it seems Colby pointed to his webpage on the WellPoint site to seduce some of his targets. (Lisa Girion, “WellPoint named a defendant in sexual-battery suit”, LA Times, Jun. 29; see also “Women claim lives with WellPoint exec”, LA Times, Jun. 13 (no longer on web)).

Flashback: the tort system in action in the case of Curtis Campbell

In 1981, Curtis Campbell (Campbell) was driving with his wife, Inez Preece Campbell, in Cache County, Utah. He decided to pass six vans traveling ahead of them on a two-lane highway. Todd Ospital was driving a small car approaching from the opposite direction. To avoid a head-on collision with Campbell, who by then was driving on the wrong side of the highway and toward oncoming traffic, Ospital swerved onto the shoulder, lost control of his automobile, and collided with a vehicle driven by Robert G. Slusher. Ospital was killed, and Slusher was rendered permanently disabled. The Campbells escaped unscathed.

Guess quickly: which plaintiff in the resulting twenty years of litigation won the biggest jury verdict?

How many of you say Ospital?

How many of you say Slusher?

You’re both wrong. The plaintiff with the biggest jury verdict was Curtis Campbell, whom a jury awarded an incredible $147.6 million.

Read On…

May 30 roundup

  • Both sides agree to drop litigation in Islamic Society of Boston mosque-building controversy (Herald, Globe; earlier here, etc.)

  • Australia’s Slater & Gordon becomes world’s first law firm to list itself on stock exchange (SMH, Ribstein; Regan/MacEwen/Ribstein; more)

  • Colo. bar-restitution fund strained after lawyer who “hoped to save the world” plunders $5 million from clients to fuel strip-club-enhanced lifestyle (Rocky Mountain News)

  • A trend? Another restaurant sues over negative review (Delmonico Grill in Port St. Lucie, Fla. against Scripps Treasure Coast Newspapers and reviewer Patricia Smith; Hometown News)(earlier)

  • Ontario appeals court deems bite of West Nile-infected mosquito to be “accident” triggering insurance coverage [Harikari]

  • Nanny may I? Chicago bans actors on stage from smoking as part of theatrical performance (Lambert); Vancouver condo owner faces suit for smoking on her own patio (AHN, Vancouver Sun); Montgomery County, Md. becomes first county to vote to ban trans fats (Gillespie)

  • Nevada bench colleagues intervene with Judge Elizabeth Halverson: it’s just not done to call your clerk “The Antichrist” or ask court staff to give you foot rubs (Morrison, LVRJ). More: Above the Law;

  • Midwifery in crisis: one D.C. birthing center’s struggle to keep its doors open (WaPo)

  • Some advice: if you’re claiming disability benefit, you might not want to enter and win a strongman competition in which you lift the front end of a car (Telegraph, U.K.)

  • Judge rejects Utah lawyer’s claim that CBS should pay him $5,000 for exposing him to Janet Jackson’s Super Bowl wardrobe malfunction (three years ago on Overlawyered)