4th Circuit Injury & Tort Law News - U.S. Fourth Circuit
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Note to future lawyers. Here are things you don't do in a deposition, held in an expensive foreign locale, such as Italy: coach witnesses, tell them how to answer questions, or walk out and cancel all remaining depositions without a really good reason.

Such "totally inappropriate" conduct is "deserving of sanctions."

How much in sanctions? Close to a million dollars, with attorneys' fees and expenses included. The original order, however, ordered sanctions against the plaintiffs, not their attorney. After the district court clarified via Rule 60(a), the lawyer's lawyer missed the deadline to appeal.

Lawyer gets stuck with a $1,000,000 tab. Lawyer's lawyer gets a malpractice suit.

It's not a matter of mandates versus taxes. Nor is it a religious challenge. This time, it's about Obamacare/Affordable Care Act subsidies, the ones that make healthcare affordable to low-income individuals.

We've noted the general premise of these lawsuits repeatedly: the text of the statute appears to support the notion that unless a state forms its own healthcare exchange, no subsidies were supposed to be available. The IRS took a different view and reinterpreted the statute, making subsidies available to everyone, regardless of whether the person used a federal or state exchange.

The stakes are high: no subsidy, no insurance purchases. No purchases, no mandates, per the terms of the statute. No mandates and no demand, no Obamacare.

What do you think of when you hear the name GM? If you've been watching news, you're thinking faulty ignition switches and rolling death traps, even though only thirty-four cars, out of millions recalled, have actually crashed as a result of recalled switches.

Of course, that defect is real. In the case of Company Doe, the report of an allegedly unsafe product, which was linked to a child's death, was labeled "materially inaccurate" by a Maryland federal judge in 2012. He then sealed the case files, hoping to avoid unfairly damaging the company's reputation by releasing the report.

Noble intentions, but with constitutional implications, it seems. The Fourth Circuit yesterday reversed the trial court's ruling and ordered all case files unsealed and unredacted, though likely appeals mean that the public won't hear much about Company Doe or the allegedly defective product any time soon.

Elk Run, a coal mining company, did something most of us would find reprehensible. When an employee filed for Black Lung benefits, it had three experts analyze his pathology slides. Two provided unfavorable opinions. They went with the third, and handed that evidence to other experts, who found, based on that single report, that the employee, Gary N. Fox, did not have pneumoconiosis. Elk Run presented this at an administrative hearing in 1999.

Fox represented himself, and lost. He did not obtain the two favorable reports in discovery, did not obtain his own reports, and did not cross-examine the unfavorable report's preparer on his qualifications. A few years later, after obtaining counsel, he tried again. This time, he won.

Unfortunately, due to the previous holding, Elk Run is off the hook for all damages prior to the first trip to the Administrative Law Judge. Unless, of course, Fox's surviving spouse can prove that there was a "fraud on the court" to set aside the judgment under Federal Rule of Civil Procedure 60(b)(3), which otherwise places a one-year limit on collateral attacks.

Note to self: applying electric current to one's heart via a Taser can disrupt the heart's normal operation.

Such a notion makes sense -- after all, when a person's heart stops, the remedy is often to use a defibrillator to shoot bursts of electricity into the patient's heart to "jump start" it. However, for a time, it was thought that the X26 Taser was incapable of disturbing a person's heart rhythm. In fact, the manufacturer's training materials explicitly noted that it was impossible to interfere with the heart's rhythm by applying the Taser, and that police officers should aim for the center of the chest, near the heart.

Jamey Wilkins is a long-term guest of the State of North Carolina. Back in 2007, he got into an argument with a guard, who allegedly went into his cell, and proceeded to end the argument -- with his fists, feet, and knees. Wilkins's dramatic injuries included a bruised heel, back and neck pain, headaches, and of course, "other health complications."

If you're thinking that he's full of crap, well, you aren't alone. His case was originally dismissed because of the de minimis injuries. After the Fourth Circuit affirmed, the Supreme Court stepped in and reversed, holding that unreasonable or excessive force rather than the injury was what mattered. On remand, and after a jury trial, Wilkins won: $0.99.

Even with the court's gracious rounding to $1.00, and with a fee shifting provision that upped the total to $2.40, it wasn't even enough to the extensive legal tab: $92,306.25.

"The law is now settled that Bivens suits are never permitted for constitutional violations arising from military service, no matter how severe the injury or how egregious the rights infringement."

That statement, from Erwin Chemerinsky's Federal Jurisdiction treatise sums up the opinion quite well. Twenty-eight current and former members of the armed forces attempted to sue two former Secretaries of Defense, Donald Rumsfeld and Robert Gates, for their "acts and omissions" that enabled a "military culture of tolerance for sexual crimes perpetrated against them."

Fourth Circuit Dismisses Federal Claims in Duke Lacrosse Suit

We all remember the Duke lacrosse rape allegations, right? In 2007, an exotic dancer claimed that she was raped at lacrosse team party. Over the course of a few hours, the details of her story changed. She was attacked by three men. No, she wasn’t attacked at all. She was attacked by as many as 20 men.

The evidence — including extensive DNA analysis — simply didn’t support her claims. Even the prosecutor, former Durham District Attorney Mike Nifong — looked at the lack of evidence and said, “You know, we’re f**ked.”

We’re just spit-balling here, but it seems like the “f**ked” stage is where you abandon a case. Or at least set it aside for a a second look. But, at Nifong’s direction, Durham authorities doubled down. Search warrants were executed. College students were indicted.

And when the charges were ultimately dropped, lawsuits were filed.

Facebook Likes Free Speech

Be careful what you "like” on Facebook.

This week, the social network filed a brief in a First Amendment retaliation challenge before the Fourth Circuit Court of Appeals, arguing that Facebook “likes” are free speech, reports GigaOM. A district court previously dismissed the case, finding that clicking that tiny thumbs-up button was “insignificant speech” that did not involve “actual statements.”

So how does a click-of-the-thumb turn into a tort?

4th Cir Asks W. Va. Supreme Court to Weigh in on Mining Lawsuits

The Fourth Circuit Court of Appeals ruled this week that the West Virginia Supreme Court should decide whether Mine Safety and Health Administration (MSHA) inspectors can be held liable for coal miners' deaths, reports CBS News.

The appellate court characterized the issue as "a pure question of state law, which has not been squarely addressed," and noted that it was "a matter of exceptional importance for West Virginia."