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Court: Anti-Gay Attacks Not Hate Crimes

The West Virginia Supreme Court ruled that anti-gay attacks are not hate crimes under state law.

Affirming a lower court decision, the high court said the legislature did not include "sexual orientation" in defining people protected from hate crimes. In a 3-2 decision, the judges said the court would not re-write the definition of "sex" in the West Virginia Code.

"Through application of the presumption that the Legislature said in West Virginia Code § 61-6-21(b) what it meant and meant what it said, and based upon the common and plain meaning of the word 'sex,' as well as the Legislature's clear intent, we are left with the ineluctable conclusion that the word 'sex' does not include 'sexual orientation'," Chief Justice Allen Loughry II wrote in State of West Virginia v. Butler.

No Failure to Warn of Transvaginal Mesh Danger, 4th Circuit Rules

A federal appeals court affirmed a summary judgment against a woman who sued a manufacturer for failure to warn about the dangers of a transvaginal mesh implant.

The U.S. Fourth Circuit Court of Appeals said Martha Carlson provided no evidence that she or her doctor knew of the manufacturer's allegedly inadequate warning about the mesh. In Carlson v. Boston Scientific Corporation, the court said she did not even prove the doctor would have read it.

"Appellant woefully failed to meet her burden of production in opposition to summary judgment to establish a triable issue of fact as to proximate cause," the court said.

Trump Lawyers Try to Save 2nd Travel Ban

If politics and religion have anything to do with President Trump's travel ban, then his lawyers were facing a hostile crowd at the en banc panel of the U.S. Fourth Circuit Court of Appeals.

Nine of the 12 justices hearing the case are Democrats. Two Republican appointees recused themselves. That left only three from the president's party in the courtroom, not including his lawyers.

Acting Solicitor General Jeffrey Wall did not get far in the argument before U.S. Circuit Judge Robert King jumped in. The judge challenged the government's position that Trump's anti-Muslim statements had nothing to do with the travel ban.

"That's the most important issue in the whole case," King said, making it clear that the president's campaign statements could doom his travel ban on people coming from six Muslim countries.

Deported Witness Didn't Matter in Green Card Sting and Conviction

A federal appeals court refused to set aside the convictions of a Chinese man who blamed the government for deporting his main witness in a green card sting.

The U.S. Fourth Circuit Court of Appeal said the jury had enough evidence to convict him even though his witness hadn't testified. Moreover, the court said Kaixiang Zhu was responsible for his own predicament in United States of America v. Zhu.

"Indeed, Zhu is in this particular fix because of his own decision to flee arrest and live as a fugitive in another part of the country for more than two years," the court said in the per curiam opinion. "We doubt the government is required to keep a removable alien in the country indefinitely on the off chance that a fugitive from justice is discovered in the distant future and needs the alien as a trial witness."

Game of War is one of the most popular, most addicting games this side of Farmville. A "freemium" mobile game, Game of War allows you to build a pixilated empire, constructing cities, building armies, raiding neighbors.

But it was also an unlawful "gaming device," according to one putative class action. The game allows users to spin a virtual wheel for virtual prizes in a virtual casino. That feature, the suit alleged, violated Maryland gambling laws. But the suit was recently tossed by the Fourth Circuit, which found that the plaintiff hadn't lost money playing the game, and thus had nothing to recover.

Probationer Waived Psychotherapist-Patient Privilege in Sex Offender Treatment

A federal appeals court ruled that a Virginia man waived the psychotherapist-patient privilege in a sex offender treatment program when he agreed to probation.

The U.S. Fourth Circuit Court of Appeals also said the defendant voluntarily made statements in the program that waived his privilege against self-incrimination in the case, United States of America v. Lara. The appeals court affirmed rulings by a trial judge, who concluded Juan Elias Lara waived his privileges when he chose to participate in the program as part of his probation.

"Based on the record before us, we conclude that Lara knowingly agreed to disclosure of his treatment records when he signed the form in the state court proceedings acknowledging the terms of his supervised probation," Judge Barbara Milano Keenan wrote for the unanimous panel.

The Supreme Court this morning vacated and remanded a Fourth Circuit ruling in favor of Gavin Grimm, a transgender Virginia student who had sought to use the boy's room at his high school. The Fourth ruled last April that courts must defer to Department of Education guidance on the issue, guidance that interpreted Title IX as requiring transgender students to be treated in accordance to their gender identity, even when it came to bathrooms.

But the Trump administration has since rescinded that guidance, leading the Supreme Court to toss the Fourth's ruling and send the issue back to the lower courts.

Ford Design Defect Verdict Overturned

Reversing a $3 million verdict for a driver who was injured when his car's accelerator jammed and smashed into a brick wall, a federal appeals court said the plaintiff's expert was not qualified to testify about the accelerator.

The U.S. Fourth Circuit Court of Appeals said that the expert should not have been allowed to testify because he had not published or given scholarly support for his opinion. The appellate panel said the trial judge had "abandoned his gatekeeping duties" and should have excluded the expert's testimony.

"The fact that an expert witness was 'subject to a thorough and extensive examination' does not ensure the reliability of the expert's testimony; such testimony must still be assessed before it is presented to the jury," the court said.

Things got a little better for parties seeking to recover attorney's fees in the Fourth Circuit this week. On Tuesday, the Fourth ruled that Federal Rule of Civil Procedure 41(d), which seeks to deter forum shopping and "vexatious" lawsuits, allows courts to award attorney's fees, but with limits.

Some courts have fully rejected the idea that Rule 41(d) entitles parties to recover attorney's fees, while others have awarded them almost as a matter of right. The Fourth Circuit's decision places it firmly between these two extremes, allowing recovery of fees only where the underlying statute defines costs to include attorney's fees, or where plaintiffs had acted in bad faith and vexatiously.

The Fourth Circuit will reconsider a controversial ruling that found a fundamental right to own assault weapons, the court announced last Friday. Just one month ago, a divided Fourth Circuit panel ruled that the possession of firearms was a "fundamental right" under the Second Amendment. As such, laws impinging on that right, here, a Maryland ban on assault weapons and large capacity magazines, must be reviewed under a standard of strict scrutiny.

The ruling was a win for gun rights advocates, but a departure from the conclusions of other circuits. Now, that conclusion is in question as the Fourth prepares to rehear the case en banc.