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Case Update

The US Supreme Court is coming down with its end-of-term decisions; last week it issued three.  In Abuelhawa v. US, the defendant had purchased a gram of cocaine on two occasions, a misdemeanor under Federal law, but had made six telephone calls to arrange the purchases, and so was indicted and convicted of six felony counts of "using a communication device to facilitate a drug transaction."  The Court unanimously reversed, finding nothing in the legislative record which would support such an application.  In Haywood v. Drown, the Court dealt with a New York statute which had required prisoners pursuing §1983 lawsuits to file them in the state court of claims, which didn't allow attorney fees or punitive damages; the Court struck this down, too, albeit by a 5-4 margin, as a violation of the Supremacy Clause.  The big decision was Montejo v. Louisiana, which we'll talk about tomorrow.  (No 8th District roundup; the 8th handed down only nine decisions this week, about a third of the normal amount.)

Nothing from the Columbus Seven, other than a couple of disciplinary decisions, so let's get to the courts of appeals, where there's very little going on, either...

Civil.   9th District affirms grant of summary judgment on sovereign immunity grounds to Children's Services in failing to investigate claim of child abuse, over dissent which argues that question of recklessness was for jury... Magistrate awards plaintiff $12,539, judge sustains objections, refers case again for determination of damages, magistrate awards $2,662.  Plaintiff objects, saying that first award was appropriate, 2nd District says this wasn't sufficient objection under the rules:  plaintiff could not claim that first award was right, but had to explain why second award was wrong... Summary judgment for employers in intentional tort cases affirmed by 8th District here and by 11th District here; both hold that evidence failed to establish genuine dispute as to second Fyffe prong, that employer was substantially certain that injury would occur...

Criminal.  While submitting video transcript of lower court hearing satisfies requirement of filing record, appellant must still provide transcripts of portions of record he relies on for his arguments, says 9th District... 10th District affirms conviction in felonious assault case involving firearm, saying that trial court was right to reject challenge for cause to juror who said he could follow the law, despite his disbelief in self-defense and aversion to guns...

"Same Juror" Rule.  That's the topic of the 9th District's decision in Segedy v. Cardiothoracic; the rule concerns individual juror inconsistencies between interrogatories and the general verdict.  Can a juror find in one interrogatory that the defendant was not liable, yet sign a general verdict awarding damages to the plaintiff?  No, but that's what happened here, and the judge sent the jury back to correct it.  The 9th says the judge did an adequate job of that, and affirms the verdict, although there might be some merit to the defendant's grievance; this is typical of the judge's explanation:

If you agreed that Dr. Netzley failed to comply, then your name should appear on Jury Interrogatory No. 1, and those same people -- well, not necessarily. Jury Interrogatory No. 3 is a little different, did his failure to comply with the standard of care, was it a proximate cause, but if your name's on both of those, in all likelihood it would appear on the general verdict for Plaintiff.  Wouldn't have to.
Go back and see if you can clear this up.

Good luck with that.

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