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Court: Mom Can't Sue Over Circumcision
Breaking Legal News | 2008/02/07 01:21
The Minnesota Court of Appeals has ruled that a mother who didn't like the way her baby's circumcision looked cannot sue a Fridley hospital for medical malpractice.

Dawn Nelson sued Unity Hospital and Dr. Steven Berestka, claiming the doctor removed "the most erogenous tissue" after the boy was born on Jan. 21, 2000 — without consulting either parent. Nelson and the boy's father, David Nelson, were unhappy with the result.

But the Appeals Court noted in its Tuesday decision that the mother indicated on a prenatal form that the baby should be circumcised.

Attorney Zenas Baer, who is representing the mother and son, said he was disappointed with the court ruling.

He said federal regulations say there has to be a signed informed consent form before any surgery — and he argued that a checked-off box on a form regarding circumcision is beside the point, saying "isn't the mom allowed to change her mind?"

Baer said his client plans to appeal.

Dawn Nelson initially sued the doctor, alleging assault and battery and negligence. That claim was settled separately. The claims against Unity Hospital and its parent company, Allina Health System, went forward.

Nelson claimed the hospital had a duty to verify that the doctor obtained informed consent and she claimed the hospital had been deceptive or misleading in its informed consent policy.

A Hennepin County judge disagreed and dismissed the case. The appellate court affirmed the lower court decision.

As for the child, another surgeon "performed a revision for cosmetic purposes" shortly after the initial circumcision, the ruling said.

Mark Whitmore, an Allina attorney, said the company was pleased with the ruling.

According to Baer's Web site, he "contributes substantial amounts of time to ending the barbaric practice of routine infant male circumcision worldwide, insuring genital integrity for all citizens of the world."



Detroit told to disclose mayor's secret deals
Breaking Legal News | 2008/02/06 08:48

A judge ordered the release of secret agreements Tuesday revealing that Detroit Mayor Kwame Kilpatrick settled a police whistle-blower lawsuit for $8.4 million in October in a failed bid to conceal text messages showing that he and his chief of staff lied under oath about their romantic relationship. Wayne County Circuit Judge Robert Colombo also ordered the release of a transcript of a deposition the police officers' lawyer gave under oath last Wednesday. During the deposition, lawyer Mike Stefani explained how the secret agreements were reached.

The Free Press sued the city in Wayne County Circuit Court to obtain the confidential agreements, which city lawyers insisted did not exist.

Colombo rejected city arguments that some of the documents are private and exempt from disclosure under the Michigan Freedom of Information Act, saying, "Nothing could be further from the truth."

The judge gave the city until 8:30 a.m. Friday to decide whether to appeal his decision. He urged the city to release the documents immediately.


Sharon McPhail, general counsel of the mayor's office, released a statement saying the office disagreed with Colombo's ruling and would immediately appeal.

"The documents in question were never introduced into evidence during the lawsuit or trial, were never part of the evidence the jury considered during the trial and many of the documents have never been in the City's possession," the statement said.

Also Tuesday, the Detroit City Council authorized the city auditor general to investigate the finances and operation of the mayor's office and law department.

The moves came two weeks after the Free Press reported it had obtained nearly 14,000 text messages sent between Kilpatrick and Christine Beatty on her city-issued pager in 2002 and 2003.

The messages showed that Kilpatrick and Beatty lied under oath at the whistle-blower trial in August when they denied that they had been involved romantically. The messages also showed that they tried to fire Deputy Police Chief Gary Brown.

The Free Press report set off a chain of events, including demands for Kilpatrick and Beatty to resign, a perjury investigation by Wayne County Prosecutor Kym Worthy and a public apology from the mayor. Beatty turned in her resignation last week; it takes effect Friday.

The Free Press first requested the secret agreements in October, shortly after the mayor announced that he had settled lawsuits filed by Brown and former mayoral bodyguards Harold Nelthrope and Walter Harris, who said they were fired or forced to resign after raising questions about the conduct of the mayor's security staff.

The officers said they were forced out to prevent them from learning about the mayor's relationship with Beatty.

Colombo said all of the documents will be made public unless the city wins an appeal.



Court Won't Reconsider Guantanamo Ruling
Breaking Legal News | 2008/02/02 07:18
A federal appeals court refused Friday to reconsider a ruling broadening its own authority to scrutinize evidence against detainees at Guantanamo Bay.

The decision is a setback for the Bush administration, which was displeased by the court's three-judge ruling in July and had urged all 10 judges on the U.S. Court of Appeals for the District of Columbia Circuit to review it. The administration said the decision jeopardized national security.

The ruling held that, when Guantanamo Bay detainees bring a court challenge to their status as "enemy combatants," judges must review all the evidence, not just the evidence the military chooses.

After criminal trials, appeals courts are limited in what evidence they can review. But hearings at Guantanamo Bay are not trials. Detainees are not allowed to have lawyers and the Pentagon decides what evidence to present. And unlike in criminal trials, the government is not obligated to turn over evidence that the defendant might be innocent.

"For this court to ignore that reality would be to proceed as though the Congress envisioned judicial review as a mere charade," Chief Judge Douglas H. Ginsburg wrote Friday.

If the military reviewers designate a prisoner an enemy combatant, the prisoner can challenge that decision before the appeals court in Washington. The court was divided 5-5 on whether to reconsider its earlier decision. A majority of judges must vote to reconsider a ruling as a full court.

The Supreme Court is watching the case as it considers a landmark case challenging whether the military tribunal system is unconstitutional. With the high court waiting, it would not be in the public's interest to reconsider the case and risk delaying a Supreme Court decision, Judge Merrick B. Garland wrote.

Judge A. Raymond Randolph issued a stern retort.

"We think that it is more important to decide the case correctly," Randolph wrote on behalf of the dissenting judges, "and that a correct decision would be of more assistance to the High Court."

It is unusual for judges to issue written opinions when denying such requests. The decision to issue a multiple written opinions underscores both how important and contentious the issue is.

"We are disappointed with today's decision," Justice Department spokesman Erik Ablin said. "All of the judges recognized the importance of the case and the court was evenly divided. We are reviewing the decision and considering all of our options."



US Supreme Court stays Alabama execution
Breaking Legal News | 2008/02/01 09:07
The US Supreme Court on Thursday issued an order staying the execution of a convicted rapist and murderer, as part of its decision to review the legality of lethal injections nationwide. The reprieve came hours before James Callahan, 61, was scheduled for execution at Alabama's Holman prison. Callahan was sentenced to death for the 1982 rape and murder of a Jacksonville State University student.

The Supreme Court's stay of execution followed its decision in September to hear a challenge to the constitutionality of the cocktail of chemicals used in lethal injections. The court began hearing arguments on this on January 7.

Local courts and state governments across the United States have put executions on hold while they await the Supreme Court decision, which is expected before the end of its term in July.

The review centers on the three-stage cocktail of drugs used in the injections -- the first chemical puts the prisoner to sleep, the second paralyzes the muscles and the third stops the heart.

If all goes to plan, the inmate quickly falls unconscious and dies within minutes. But if the first chemical is not administered properly, the two others become extremely painful, as shown by several botched executions.

Lawyers arguing against lethal injection say it violates the eighth amendment of the US constitution, which outlaws "cruel and unusual" punishment.

In December, New Jersey became the first US state in 40 years to abolish the death penalty. But opinion polls suggest that two-thirds of Americans continue to favor capital punishment, and more than 3,200 inmates remain on death row across the country.



Ore. high court reaffirms smoker damages
Breaking Legal News | 2008/02/01 03:07

The Oregon Supreme Court for a third time has allowed a $79.5 million punitive-damages judgment against Philip Morris, an award twice struck down by the U.S. Supreme Court, which suggested it was excessive.

The award was for the family of Jesse Williams, a former Portland janitor who started smoking during a 1950s Army hitch and died in 1997 six months after he was diagnosed with lung cancer. A jury in Portland made the award in 1999.

The Oregon Supreme Court said in Thursday's ruling that Philip Morris and the tobacco industry worked during the 1950s on a "program of disinformation" to create doubt about the dangers of smoking. Williams "learned from watching television that smoking did not cause lung cancer," but, once he came down with it, said the "cigarette people" had lied to him.

Thursday's ruling followed a decision by the U.S. Supreme Court last year to send the case back to Oregon.

The state Supreme Court was told to reconsider the award based on its decision about instructions for the trial jury that Philip Morris had proposed and the trial judge rejected.

The Oregon high court on Thursday said there were other defects in the instructions, violating Oregon law, that justified the trial judge's decision.

The Oregon court said that, for example, the instructions Philip Morris suggested would have forbidden the jury to consider the profits the tobacco company made through misconduct that was not illegal.

The Oregon Supreme court decision Thursday didn't take issue with the U.S. Supreme Court on another point it raised -- that Oregon courts couldn't allow jurors to use punitive damages to punish a defendant for harm done to anybody who wasn't part of the suit.

The instructions about punitive damages have been at the center of the legal battle over the suit brought by Williams' widow, Mayola.

Philip Morris will appeal Thursday's ruling to the U.S. Supreme Court, the tobacco maker said. Business groups have watched the case closely as a precedent setter for large jury awards in product liability suits.

The Oregon high court made its first decision in 2002, refusing to hear an appeal from Philip Morris.



Supreme Court Hears Fla. Gaming Case
Breaking Legal News | 2008/01/31 09:49
Gov. Charlie Crist exceeded his powers and violated the Florida Constitution when he agreed with the Seminole Indian tribe to expand gambling in the state, an attorney for the Florida House told the state Supreme Court on Wednesday. Crist and the tribe signed an agreement in November that allows for Vegas-style slots and games such as blackjack and baccarat at its seven Florida casinos. Attorney Jon Mills, a former House speaker, said the state's compact with the tribe sets policy and changes existing state laws, which is a power held by the Legislature.

"This compact, as it stands before you, is unconstitutional. It exceeds the governor's power," Mills told the justices. Attorneys for the governor and the tribe said Crist was only acting on existing state and federal law.

"You take the law as you find it, you interpret it to the best of your ability, and you apply it," said Christopher Kise, a lawyer representing the governor. "But that doesn't mean that you rewrote the law."

Mills also said any agreement made by the governor should be approved by the Legislature. Kise, however, says Crist was under a federal order to negotiate with the tribe. Had Crist needed approval from the Legislature to reach a deal with the tribe, those negotiations would not have been in good faith, he said.

The federal law regulating Indian gaming requires any game permitted anywhere in a state must also be allowed by Indian casinos. Broward County pari-mutuels already have Vegas-style slots, and Miami-Dade County voters decided on Tuesday that they want slots at their jai-alai fronton and horse and dog tracks.

But Mills said the compact goes too far in allowing "banked" card games, like blackjack and baccarat, and granting the tribe exclusive rights to those games.

As part of the compact, Florida has already received a $50 million payment from the tribe and is guaranteed $100 million in the first year. The state's share is set to increase to up to $150 million by the third year of the agreement, and after that will be based on revenue. Many expect the state's share to quickly add up to billions of dollars.

If the compact between the state and the tribe is invalidated by the court, the U.S. Department of Interior will give the tribe permission to move forward with the Vegas-style slots, said Barry Richard, an attorney for the tribe. The casinos wouldn't be allowed to add the card games, but then the state wouldn't be entitled to the payments or any regulation of the gaming.

Under the compact, about 800 Vegas-style just began operating Monday at the Seminole Hard Rock Hotel and Casino in Broward County. The high court has no timetable for a ruling.



Supreme Court opens door for toxic lawsuits
Breaking Legal News | 2008/01/31 06:52

Overturning a long-standing precedent it had reaffirmed only last year, the Alabama Supreme Court has allowed a wrongful death lawsuit that a judge had barred on grounds that the plaintiff waited too long to file.

The 5-4 decision handed down Friday will allow Alabamians exposed to toxic chemicals after Jan. 25, 2006, to sue the manufacturers if they become ill in the future, but it will not apply to thousands of people who were last exposed before then.

"That doesn't mean we're going to stop," said Birmingham lawyer Robert Palmer, who represents the plaintiff, a widow of a Tuscaloosa man who died from a rare form of leukemia. "Denial of justice to anyone is not justice. ... It's a victory, but it's not a complete victory."

Since 1979, the high court had enforced what amounted to a Catch-22. In most cases, people who claim to have been sickened by a toxic substance had to file a lawsuit within two years of their last exposure. But they also could not sue until they were sick.

Since symptoms caused by toxic chemicals often do not show up until years after the fact, the rulings effectively barred plaintiffs from seeking damages in court.

Alabama had been the only state to interpret its statute of limitations rules in that way.

Activists urging restrictions on lawsuits have argued that the state Legislature should address the issue. They also note that the statute of limitations is important because of the difficulty companies face trying to defend against alleged conduct that occurred many years ago.

"More people are potentially going to have claims now," said Mobile lawyer Matt McDonald, the general counsel of the Alabama Civil Justice Reform Committee. "Because it's not retroactive, I don't think it's going to open the floodgates, either."

In the case decided Friday, Brenda Sue Sanford Griffin sued in 2006 on behalf of her dead husband, claiming his death was the result of exposure to benzene and other toxic substances he came in contact with on the job at a tire manufacturing plant.

David Wayne Griffin worked at the Tuscaloosa plant from 1973 to 1993. He was diagnosed with a rare disease called acute myelogenous leukemia in 2003, 10 years after his last exposure.



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