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Case Update

Last week in Washington, the Supreme Court heard argument in the Phillip Morris case, which stems from an Oregon judgment for $80 million in punitive damages in a smoking case.  The Court has reversed the judgment twice, only to have the Oregon Supreme Court reinstate it on different grounds.  A not entirely unbiased, but entertaining, article about the oral argument can be found here.  This week, the Court will have argument in Arizona v. Johnson, which presents the question of whether police can frisk a passenger of a vehicle they've stopped if they believe he's armed and dangerous, even if they don't have any reason to believe he's committed any crime.  I'll have a post on that later this week.

I'll also do a post on the Ohio Supreme Court's disciplinary decisions, because there were ten, count 'em, ten of those last week.  Sprinkled among them was Patterson v. APA, where the court upheld the dismissal of a habeas petition alleging failure of the trial judge to properly impose post-release controls at sentencing, because the defendant had an adequate remedy at law to challenge that on appeal. 

And in the courts of appeals...

Criminal.  8th District holds that Adam Walsh Act (sexual offender registration and notification) can be applied retroactively... 10th District says allowing police officer to testify as to contents of Crimestoppers tip was hearsay, but finds error harmless... Bullshit traffic stop of the week:  9th District affirms denial of motion to suppress where police stopped vehicle because driver failed to put on signal before turning into driveway... 10th District holds that trial court's imposition of greater sentence because of defendant's refusal to testify in co-defendant's trial was violation of defendant's right against self-incrimination, vacates sentence... 3rd District holds that trial court, in imposing sentence, cannot consider conduct which has not been adjudicated by finding of guilt...

Civil.  Good, if complex, discussion of misappropriation of trade secrets in this 10th District case... 5th District reverses grant of summary judgment in med mal case, says that factual contradictions in depo testimony of plaintiff's fact and expert witnesses not basis for granting motion... For those of you laboring under the impression that Civil Rule 4.1 somehow allows you to obtain service upon a defendant by emailing the insurance adjuster a copy of the complaint, 10th District says it just ain't so... Where separation agreement in divorce required husband to sell home without specifying time limit, "reasonable time" for performance will be inferred, and trial court within its rights to order husband to list house with auctioneers within 48 hours, says 5th District...

Novel Legal Theories, Chapter LXVII.  Whitelow files telephone harassment charge against Darris.  Case gets dismissed.  Eighteen months later, Darris files complaint for malicious prosecution, abuse of process, intentional infliction of emotional distress, and defamation against Whitelow.  Problem:  all of those claims have one-year statute of limitation.  After Whitelow files motion for summary judgment, Darris' lawyer tries to get around this (he didn't realize it before?) by seeking to amend the complaint to allege negligence.  Negligence, you say?  How in the world do you come up with a negligence allegation for this?

By making a claim for "negligent improper identification," i.e., by sticking the following paragraphs in the complaint:

12. Defendant has and had at all relevant times a duty to not improperly identify Plaintiff as a person who engaged in telecommunications harassment in violation of the law.

13. Defendant breached this duty by improperly identifying Plaintiff as the person who engaged in telecommunications harassment in violation of the law.

If you can't figure out how this ends up, read the 10th District's decision in Darris v. Whitelow

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