
• Illinois appeals court says the contact sports exception to negligence liability does not apply to the case of an athletic trainer who was struck in the eye by a hockey puck while refilling water bottles. Michael Weisberg "suffered injuries as a result of alleged conduct that was not inherent to the sport of hockey." Weisberg v. Chicago Steel
• 3rd Circuit rules that a couple can sue Google for trespassing on their property while photographing it for the Street View feature. "[T]he Borings have alleged that Google entered upon their property without permission. If proven, that is a trespass, pure and simple." Boring v. Google
• Minnesota judge reduces a jury award of copyright infringement damages against an illegal music file sharer from $2 million to $54,000. "The need for deterrence cannot justify a $2 million verdict for stealing and illegally distributing 24 songs for the sole purpose of obtaining free music." Capitol Records v. Thomas-Rasset
• Special master says Texas Court of Criminal Appeals Judge Sharon Keller's conduct on the day of an execution was "not exemplary," but "she did not engage in conduct so egregious that she should be removed from office." In re Honorable Sharon Keller
• New Jersey appeals court says a female business owner can sue a male customer for refusing to do business with her unless she gave him sexual favors. "The quid pro quo sexual harassment alleged in the complaint, if legally permitted, would stand as a barrier to women's ability to do business on an equal footing with men." J.T.'s Tire Services v. United Rentals
• New Mexico judge says a photographer may be compelled to photograph a same-sex commitment ceremony despite her religious convictions because she "is not being forced to participate in any ceremony or ritual; the only requirement is that she photograph the event." Elane Photography v. Willock
• Tennessee judge rules that the PGA Tour does not have to accommodate a golfer by allowing him to take testosterone shots. Doug Barron "has not shown that the 'reasonable accommodation' he has requested ... is necessary in order for him to continue playing golf in PGA Tour events." Barron v. PGA Tour
• 6th Circuit says two high school basketball coaches did not use excessive corporal punishment in paddling a player. One of the coaches "testified that he only paddled Martin [Nolan] a total of ten times during Martin’s tenure at Hamilton [High School]." Nolan v. Memphis City Schools
• Wrongful-death lawsuit alleges a cell phone company is liable for a fatal auto accident allegedly caused by a customer who was driving while "engrossed" in a cell phone conversation. Sprint/Nextel "failed to warn of the hazard of cell phone use while driving." Estate of Doyle v. Sprint/Nextel

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8th Circuit Throws Out Switched-at-Birth Case |
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John R. Robinson
The medical malpractice case of two women who were switched at birth was thrown out by the 8th U.S. Circuit Court of Appeals after an oral argument in which the plaintiffs' attorney never really recovered from an early blunder.
Beverly Bowker and Rowena Madrigal were both born July 27, 1946 at a hospital on a North Dakota Indian reservation. After DNA testing showed they had been sent home with the wrong parents, the two women and Bowker's biological father, Michael Ryan, filed administrative claims against the U.S. government in January 2004.
The Federal Tort Claims Act has a two-year statute of limitations but Bowker, Madrigal and Ryan argued that they did not definitively know of their injury until they received the DNA test results in July 2002 and January 2004.
“This is the stuff of movies, not real life, and it takes an event as definitive as the DNA test before the plaintiffs are aware that they are injured,” their trial attorney said.
In dismissing the case, U.S. Magistrate Judge Karen K. Klein cited “a series of events in the 1970s which demonstrate plaintiffs had more than a hunch or suspicion that an injury had occurred” before January 2002.
“Plaintiffs, especially Beverly and Michael, were actively investigating and questioning the circumstances surrounding the births of Rowena and Beverly,” she said in her decision. “Although plaintiffs did not pursue the issue in the 1970s with formal DNA testing or blood tests, they had notice of the injury.”
The appellate briefs from both sides also focused on the events of the 1970s. “[A]ll three plaintiffs were on notice of facts giving rise to suspicions that, in the exercise of due diligence, should have prompted them to investigate their claims in the 1970s,” the government argued.
But at oral argument before the 8th Circuit, Judge Steven M. Colloton suggested that Klein had used a broader time frame than the 70s. “Don't we have to look at whether they could have come to this information in the 90s, say?” he asked plaintiffs' counsel John R. Robinson of Casper, Wyo.
Based on the record in the case, Robinson should have answered “No.” Instead, he said:
I think you're right, Your Honor. It would seem pointless to send the case back [to the trial judge] without considering that because that certainly has to be considered.
Robinson did not represent the plaintiffs at the trial court level but had won an appeal in the similar Wyoming case of Larsen v. Banner Health System, 81 P.3d 196 (2003). As the oral argument proceeded, he insisted there was nothing in the record to show they knew of the availability of DNA paternity testing in the 1990s.
“Nowhere were my clients interrogated or questioned concerning ... why did they learn of it when they did,” he said.
But the damage had been done. The 8th Circuit's opinion affirming Klein focused almost entirely on the availability of DNA testing in the 1990s, concluding that the plaintiffs' “duty to investigate their possible claims included a duty to consult with legal and medical experts.”
“If the plaintiffs had inquired of a reasonably competent physician or attorney about their claims in the 1990s,” the court added, “then they undoubtedly would have learned at that time about the use of DNA testing in paternity cases.”
In his appellate brief, Robinson stressed the emotional context of the case, noting how Bowker and Madrigal struggled with the “outrageous and unbelievable rumor” that they had been switched at birth. But he did not even touch on that powerful theme in his oral argument.
By Matthew Heller 7/29/08
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Dancer Strips Club of $100K in DUI Case
A former stripper has won a $100,000 award in an unusual employment law case as a jury found a Birmingham, Ala., strip club liable for allowing her to drive home from work “in a highly intoxicated state.”
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Halliburton Takes Swing at Alleged Rape Victim
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Tenant's Gripe Tweet Too Vague to be Libel
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Copperfield Wants U.S. to Keep Evidence From Accuser
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Hotel Exec Settles Drug Death Case
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Bingo for "Bruno!" Baron Cohen KO's Verbal Spat Case
A California judge has dismissed a verbal assault case against comedian Sacha Baron Cohen, finding that a woman initiated a confrontation with him during the filming of a scene for the movie “Brüno” and “not vice versa.”
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"No Sex Involved" in Orgy Viewing Case, Hotel Insists
A former manager at the Hilton Minneapolis who claimed she walked in on an orgy at a company sales conference has “sensationalized” what was only “some questionable behavior,” the hotel's owner says in arguing that her sexual harassment case should not go to trial.
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Plaintiff B v. Joe Francis Date: 2/22/10 Court: USDC, N. Fla. Hearing: Jury trial in sexual abuse case.
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