John Doe A v. Penn State
First Penn State scandal lawsuit says Coach Jerry Sandusky sexually abused a boy more than 100 times and the abuse was enabled by the school's "negligent oversight."
Bradley v. Lohan
Former Betty Ford Center employee sues Lindsay Lohan for assault, alleging the actress threw a phone at her and yanked her wrist while refusing to be breathalzyed.
N.D. v. New York Post
Hotel maid allegedly raped by French politician sues the New York Post for falsely reporting that she is a prostitute who "routinely traded sex for money" with male guests.
Reinhart v. Mortenson
Two Montana residents allege the author of "Three Cups of Tea" "fabricated material about his activities and work in Pakistan and Afghanistan" to sell the book.
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• Maryland appeals court says dog owners can be held strictly liable for pit bull attacks. "Because of its aggressive and vicious nature and its capability to inflict serious and sometimes fatal injuries, pit bulls and cross-bred pit bulls are inherently dangerous." Tracey v. Solesky

• Woman who has been diagnosed as a sex addict sues a school district for failing to prevent her from having sex with male students on the school bus when she was in 11th grade.
Barksdale v. Egg Harbor Township Bd. of Ed.

• Civil rights activist challenges Georgia's "stand your ground law." "By not defining what actions create a reasonable perception justifying the use of deadly force, the Act[] potentially deprives all Georgia[n]s of the right to life without due process of law." Hutchins v. Deal

• Former patient of a Rhode Island doctor sues him for featuring her in a book about drug addiction. "Plaintiff had expected, as any reasonable patient would, that her private conversations during her treatment sessions with the Defendant would remain private and confidential."
Lisnoff v. Stein

• Class action alleges the YMCA deceives consumers by representing that it practices "Christian" values while allowing its gyms to be used for gay sex trysts. "YMCAs around the country ... are currently being used as brothels for cruising, with the YMCA's knowledge and implicit consent."
Keister v. YMCA

• Social workers are not liable for a sexual assault on a 5-year-old boy by a 16-year-old male placed in an adoptive home. "To rule against the individual defendants in this case would definitely break new ground."
Doe v. Braddy

• Student sues college for refusing to grant her the "reasonable accommodation" of a single room after she complained about her roommate's exhibitionist behavior.
Blankmeyer v. Stonehill College

• School district can be sued over a guidance counselor's sexual relationship with a student who was over the age of consent. "The inherent imbalance of power between a guidance counselor in a public school and a student may render opportunistic sexual predation sufficiently shocking, even with a 'consenting' student over sixteen, to form the basis of a substantive due process claim."
Doe v. Fournier

• Utah judge finds a "credible threat" that Utah County officials will prosecute a polygamist and his wives for bigamy. The officials' acts "suggest that an actual prosecution of Plaintiffs is forthcoming."
Brown v. Herbert

• Louisville, Ky., strip club sues a competitor for displaying an electronic sign outside a convention center that said "Don't go to Godfathers, their girls are ugly and have crabs."
The Godfather v. Trixie's Lounge

• A lawyer cannot sue two women he dated for posting derogatory comments about him on liarscheatersrus.com. "[W]hen viewed within the larger context of the website on which they were posted, there can be no doubt that a reasonable reader would understand the comments to be opinion." Coulotte v. Ryncarz

• Oglala Sioux tribe sues beer makers and Whiteclay, Neb., bars for enabling alcohol abuse on the Pine Ridge Indian Reservation. The illegal trade in alcohol has "caused devastating injuries to the Lakota people and massive financial damages to the [tribe]."
Oglala Sioux Tribe v. Schwarting




Alltop_125x125.jpg







8th Circuit Throws out Switched-at-Birth Case Print

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.

John R. Robinson

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.

This story linked by:


By Matthew Heller
7/29/08

 

 

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