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Proof of a Negative Not Required for Summary Judgment
Law Center |
2012/02/26 10:16
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The Indiana Court of Appeals has issued a decision that may have a large impact on summary judgment practice in Indiana. In Commr. of the Indiana Dept. of Ins. v. Black, ___ N.E.2d ___ (Ind. Ct. App. 2012), the Court essentially held that Indiana will apply the standard set forth in Celotex v. Catrett, 477 U.S. 317 (1986), at least in some circumstances.
Tim Black alleged that Dr. Harris and others rendered negligent care to his wife after she complained of chest pain. The negligence allegedly resulted in severe cardiac arrest and resulted in the need for a heart transplant. The medical review panel unanimously concluded that Dr. Harris failed to comply with the applicable standard of care.
After the panel decision, Black filed a petition seeking payment of $1 million from the Patient's Compensation Fund and asserted that he had settled with Dr. Harris for $250,000, thereby satisfying the qualifying amount to get to the fund. The Commissioner sought discovery of the settlement agreement but Black refused to produce it, saying it was confidential. Black did produce a copy of an unauthenticated check in the amount $250,000 from the Medical Assurance Co., made payable to Black and his counsel. Black also produced some correspondence between counsel that discussed a prospective settlement.
The Commissioner moved to dismiss the petition claiming that he needed the settlement agreement in order to make payment. It was not clear from the check whether the payment was for settlement with Dr. Harris or other defendants. The trial court denied the motion to dismiss and after conducting a hearing on damages, ordered the Commissioner to pay Black $1 million. The Commissioner appealed.
In considering the motion to dismiss, the Court of Appeals observed that matters outside the pleadings were submitted in support of the motion to dismiss and were relied on by the trial court. In light of this fact, the Court of Appeals, pursuant to T.R. 12(B), treated the motion as one for summary judgment. In a footnote, the court recognized that T.R. 12(B) requires that "all parties shall be given reasonable opportunity to present all material made pertinent to such motion by Rule 56." Although no such "opportunity" was given, the court found there was "no prejudice" and proceeded to consider the appeal as a summary judgment case.
The court noted that the Commissioner's position on the motion required him to prove a negative?-that there was no settlement with Harris for $250,000. In Jarboe v. Landmark Cmty. Newspapers of Indiana, Inc., 644 N.E.2d 118 (Ind. 1994), the Indiana Supreme Court rejected the view that a party seeking summary judgment could simply point to the opponent’s burden of proof at trial and prevail unless the non-movant produced evidence supporting its claim or defense. This ruling has for many years been perceived as being at odds with Celotex, in which the U.S. Supreme Court reached a different conclusion under the federal rules. In 2000, Justice Boehm, in dissenting from a denial of transfer in Lenhart Tool & Die, Inc. v. Lumpe, 722 N.E.2d 824 (Ind. 2000), expressed the view that a party who puts forward evidence that a non-movant will be unable to present evidence to prove an essential element of its claim or defense, should be entitled to summary judgment if the non-movant fails to present such evidence. In Black, the Court of Appeals held: "Today, we accept Justice Boehm's views on this subject expressed in his dissent."
Having adopted this new standard, however, the Court of Appeals found that in this case, based on the unauthenticated check and the settlement correspondence, there was a genuine issue of fact as to whether a $250,000 settlement on Black’s claim against Harris had been accomplished. So, the Commissioner was not entitled to summary judgment. Black was also not entitled to a judgment on his claim since it was not clear that the required settlement with Harris for $250,000 had been consummated.
The Court held that the Commissioner is entitled to discovery of the settlement agreement and that the confidentiality term in the settlement agreement would not trump the Commissioner's right to such discovery. The case was reversed and remanded for further proceedings.
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Court: California can force inmates to submit DNA
Breaking Legal News |
2012/02/25 09:53
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A divided federal appeals court ruled Thursday that California law enforcement officials can keep collecting DNA samples from people arrested for felonies.
The 9th U.S. Circuit Court of Appeals said law enforcement’s interest in solving cold cases, identifying crime suspects and even exonerating the wrongly accused outweigh any privacy concerns raised by the forced DNA collections.
The 2-1 ruling came in response to a lawsuit filed by four Californians who were arrested on felony charges but never convicted.
The arrestees sought a court order barring collection of DNA from people who are arrested but not convicted, arguing the process is an unconstitutional search and seizure since some suspects will later be exonerated.
The DNA samples are obtained with a swab of the cheek and stored in the state’s DNA database, which contains 1.9 million profiles. Arrestees who are never charged with a felony can apply to have their samples expunged from the database.
The state Department of Justice said it has had roughly 20,000 “hits’’ connecting suspects with previous crimes since it began collecting the DNA profiles.
Judge Mylan Smith Jr., writing for the two-judge majority, said the useful law enforcement tool wasn’t any more intrusive than fingerprinting.
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Indianapolis Business & Corporate Law Firm
Legal Business |
2012/02/24 09:53
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Entity Selection & Formation
There are many important decisions to be made by an emerging business, each of which come with potential pitfalls that be damaging to the business and its owners in the absence of proper legal guidance. Our attorneys can help you with these issues, steering you clear of the problems while helping you select the type of entity which best serves your business interests and goals. From drafting the formation documents to stock issuance to agreements between co-owners, our Firm’s skilled business attorneys can help you establish a solid legal foundation for your business’s future.
Contract Drafting & Negotiation
Beyond the formation of business entities, our Firm acts as a corporate counsel for many of its business clients, including the negotiation, drafting and review of our client’s contracts, ranging in size from a few thousand dollars to millions of dollars. With just a few hours’ time, our review of contracts before they are signed can help our clients avoid paying for hundreds of hours of attorney time in litigation once a contract dispute arises.
Riley Bennett & Egloff Law is a Business & Corporate law firm that offers an all-inclusive range of legal services for their business clients and is capable of handling the various issues any business can face. Based in Indianapolis, their attorneys have expertise in entity selection and formation, contract drafting and negotiation, and mergers and acquisitions. Their experience can help you establish a solid legal foundation for your business's future. See www.rbelaw.com. |
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NY court decision bolsters anti-fracking movement
Court Watch |
2012/02/23 09:45
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A New York court decision has bolstered a movement among towns determined to prevent the controversial practice of hydraulic fracturing for natural gas within their borders.
A state Supreme Court justice on Tuesday upheld the town of Dryden's August 2011 zoning amendment banning gas drilling. Denver-based Anschutz Exploration Corporation, which has spent $5.1 million leasing and developing 22,000 acres in Dryden, about 40 miles southwest of Syracuse, had argued state law trumped the ban.
More than 50 New York communities have enacted gas-drilling bans. Binghamton attorney Helen Slottje, who helps draft such laws, says the ruling should embolden towns considering local bans.
"We think it's a terrific vindication of the town's right to home rule and to decide their future," Slottje said Wednesday. "It really should give the green light to communities that want to proceed down this route."
Albany attorney Tom West, who represented Anschutz, said the trial-level state court decision is likely to be appealed to the mid-level Appellate Division and, if necessary, to the state Court of Appeals.
"We remain confident in our position that municipalities cannot ban natural gas drilling in New York state," West said.
Another challenge of a municipal gas-drilling ban is pending in Otsego County, where Cooperstown Holstein Corp. sued the town of Middlefield over a ban similar to Dryden's. The lawsuit says the landowner has leased nearly 400 acres to a gas-drilling company and the ban would block the economic benefits of the arrangement.
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Strauss-Kahn has March court date in US
Breaking Legal News |
2012/02/23 09:45
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A New York court has scheduled a hearing on a lawsuit filed by the woman who accused former International Monetary Fund chief Dominique Strauss-Kahn of sexually assaulting her in a Manhattan hotel.
Prosecutors dropped criminal charges against Strauss-Kahn last year, but his accuser has demanded damages in civil court.
The March 15 hearing will deal with issues that must be resolved before a trial, which has yet to be scheduled.
Strauss-Kahn wants the lawsuit dismissed because he says he had diplomatic immunity. He isn't required to attend the March court session.
The hotel maid who says she was attacked and forcibly sodomized by Strauss-Kahn is Nafissatou Diallo (na-fee-SAH'-too dee-AH'-loh). Her lawyer, Kenneth Thompson, says she is "looking forward to her day in court and can't wait to get to trial." |
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Robbins Geller Rudman & Dowd LLP Files Class Action
Class Action |
2012/02/22 10:01
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Robbins Geller Rudman & Dowd LLP today announced that a class action has been commenced in the United States District Court for the Northern District of Illinois on behalf of purchasers of BioSante Pharmaceuticals, Inc. securities during the period between February 8, 2010 and December 15, 2011.
If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from February 6, 2012. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff’s counsel, Darren Robbins of Robbins Geller at 800/449-4900 or 619/231-1058, or via e-mail at djr@rgrdlaw.com. If you are a member of this class, you can view a copy of the complaint as filed or join this class action online at http://www.rgrdlaw.com/cases/biosante/. Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member.
The complaint charges BioSante and its Chief Executive Officer with violations of the Securities Exchange Act of 1934. BioSante is a specialty pharmaceutical company focused on developing products for female sexual health and oncology.
The complaint alleges that during the Class Period, defendants issued materially false and misleading statements regarding the commercial viability, effectiveness, and market potential for LibiGel, a drug designed to improve the sex drive of women suffering from female sexual dysfunction, and specifically hypoactive sexual desire disorder (“HSDD”). Defendants boasted about LibiGel’s efficacy over placebo in clinical trials, and provided supposedly concrete “data” regarding the drug’s “statistically significant” effect on increasing the “number of satisfying sexual events” for women suffering from HSDD. As a result of these false statements, BioSante’s stock traded at artificially inflated prices during the Class Period, reaching a high of $3.81 on July 12, 2011.
On December 14, 2011, BioSante issued a press release disclosing for the first time to investors that LibiGel failed to yield positive results in large-scale efficacy tests designed by the Company. According to the clinical trial results, women treated with LibiGel did not experience a statistically significant increase in either total satisfying sexual encounters or sexual desire. In fact, in the double-blind, placebo-controlled trial, LibiGel did not fare significantly better than the placebo. On this news, BioSante’s stock collapsed $1.64 per share to close at $0.48 per share on December 15, 2011, a one-day decline of 77% on volume of nearly 50 million shares.
According to the complaint, the true facts, which were known by the defendants but concealed from the investing public during the Class Period, were as follows: (a) LibiGel’s efficacy was well short of that required to obtain FDA approval; and (b) LibiGel failed to yield statistically superior results to placebo.
Plaintiff seeks to recover damages on behalf of all purchasers of BioSante securities during the Class Period (the “Class”). The plaintiff is represented by Robbins Geller, which has expertise in prosecuting investor class actions and extensive experience in actions involving financial fraud.
Robbins Geller, a 180-lawyer firm with offices in San Diego, San Francisco, New York, Boca Raton, Washington, D.C., Philadelphia and Atlanta, is active in major litigations pending in federal and state courts throughout the United States and has taken a leading role in many important actions on behalf of defrauded investors, consumers, and companies, as well as victims of human rights violations.
www.rgrdlaw.com |
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Law Firm Brower Piven Announces Investigation
Class Action |
2012/02/21 10:04
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The law firm of Brower Piven, A Professional Corporation, has commenced an investigation into possible breaches of fiduciary duty to current shareholders of CH Energy Group, Inc. and other violations of state law by the board of directors of CH Energy Group relating to the proposed acquisition of the company by Fortis Inc. The firm's investigation seeks to determine, among other things, whether the board breached its fiduciary duties by failing to maximize shareholder value.
On February 21, 2012, Fortis announced that it had entered into an agreement providing for Fortis to acquire CH Energy Group for $1.5 billion. Under the terms of the merger agreement, CH Energy Group shareholders will receive $65.00 for each share of CH Energy Group common stock held. However, according to Yahoo! Finance, at least one analyst has set a high price target of $69.00 per share.
If you currently own shares of CH Energy Group and would like to learn more about the investigation being conducted by Brower Piven, you may email or call Brower Piven, who will, without obligation or cost to you, attempt to answer your questions.
www.browerpiven.com |
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Class action or a representative action is a form of lawsuit in which a large group of people collectively bring a claim to court and/or in which a class of defendants is being sued. This form of collective lawsuit originated in the United States and is still predominantly a U.S. phenomenon, at least the U.S. variant of it. In the United States federal courts, class actions are governed by Federal Rules of Civil Procedure Rule. Since 1938, many states have adopted rules similar to the FRCP. However, some states like California have civil procedure systems which deviate significantly from the federal rules; the California Codes provide for four separate types of class actions. As a result, there are two separate treatises devoted solely to the complex topic of California class actions. Some states, such as Virginia, do not provide for any class actions, while others, such as New York, limit the types of claims that may be brought as class actions. They can construct your law firm a brand new website, lawyer website templates and help you redesign your existing law firm site to secure your place in the internet. |
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