Law Reporter 1996: Vol 39 Index

37 Pages·1996·12.2 MB·English

Law Reporter
1996
Annual Index
and
Table of Cases
for
Volume 39
CONTENTS
How to Use This Index
General Index by Subject
Table of Cases
Injury Awards
Wrongful Death Awards
Offerings by Topic
How to Use This Index
The Law Reporter Annual Index is designed to make your 1996 issues of the Law Reporter a reliable and accessible re-
search tool. Here are a few things you should know to make the best use of your index:
General Index by Subject (page LR-3). The major subject headings in the General Index correspond to the areas of
law covered in each issue of the Law Reporter.
To locate a particular kind of case, first determine which area your inquiry falls into. Entries within each subject include
both factual and legal issues. The numbers after the entries are the page numbers in Volume 39 of the Law Reporter where
the cases appear.
Table of Cases (page LR-18). This table includes the most complete citations available as of November 1996.
Injury Awards (page LR-35). Entries in this section will direct you to cases in the Law Reporter that contain awards of
damages for particular types of injuries. The following abbreviations are used in this section of the index: V for verdict; S$
for settlement; SS for structured settlement; PVS for postverdict settlement; A for arbitration award; M for mediation. An
asterisk beside an award indicates plaintiff suffered injuries in addition to the one(s) listed.
Wrongful Death Awards (page LR-37). This table lists the wrongful death awards reported in Volume 39 of the Law
Reporter. The following abbreviations are used in this section of the index: V for verdict; S$ for settlement; SS for struc-
tured settlement; PVS for postverdict settlement; A for arbitration award; M for mediation.
Offerings by Topic (page LR-38): To order, see the form on page 423.
To Obtain Further Information About a Case: The best source for additional information about a case is plaintiff's
counsel. The name and city of the ATLA member involved in a case is provided, where possible, at the end of our report
of the case. Your ATLA membership directory will provide you with the complete address and telephone number of any
ATLA member.
The Law Reporter provides pleadings, court documents, and briefs through the “Offerings” column each month. That
column also provides a list of Case Summary Surveys—collections of case summaries appearing in the Reporter from 1988
to the present. Also available are Ultimate Offerings—comprehensive research packages that include documents, case re-
ports, and bylined articles on a specific topic. To order, fill out the form at the back of this issue.
Binders: Blue three-ring binders for convenient storage of your issues and index are available for $30, postpaid.
Association of Trial Lawyers of America
Law Reporter
1050 31st Street, N.W.
Washington, DC 20007
Editor-in-Chief Liane E. Leshne
Managing Editor Peter C. Quinn
Associate Editors Amy L. Allbright
Jonathan Wall
Christine M. Mollenauer
Contributing Editors Heidi H. Griffin
Lynne Stern-Feiges
Administrative Assistant Edwina L. Cooper
Production Assistant Evelyn Phipps
Admiralty - Attorneys
General Index by Subject
Admiralty Jones Act, caused accident, 388
crew, order of proof, 388
evidence, inadequate, 11, 52, 99, 140, 188, 232, Longshore and Harbor Workers’
Coast Guard accident reports, 311, 348 Compensation Act (LHWCA),
admissible, 269 overworked, 99 Section 905(b) liability,
Pennsylvania rule, train, failure to, turnover duty, meet, failure to,
does not apply where no nexus lifting techniques, 11, 188 lashing platform,
between statutory violations deck, guardrails, lack of, 52
and accident, 269 keep clear, failure to, size, inadequate, 52
general maritime law, cardboard, 311 maintenance and cure,
damages, dry cement, 348 pay promptly,
for predeath pain and suffering, maintenance, negligent, 11, 99 failure to, 11
jury question where vessel disappeared, nonskid materials, use, failure to, 11, provide, failure to, 188
140 311, 311
Miles does not preclude punitive equipment, Attorneys
damages for willful or reckless inadequate, 52, 188, 312, 349
property destruction, 140 dolly, provide, failure to, 11 absolute judicial privilege,
state remedies apply to accidental drainage pipe, applies to attorney’s response to bar
nonseafarer deaths in territorial height, inadequate, 312 complaint, 270
waters, 99 warn of, failure to, 312 advertising,
navigation, right of, engine, rule barring specialization claims
does not encompass mooring barges jack motor cover, does not violate First Amendment,
in front of adjacent property secure, failure to, 312 233
for loading, 348 maintenance, negligent, 232 attorney-client privilege,
marina assumed risk of ice damage repair, negligent, 232 crime-fraud exception to,
from boat’s navigation of river, 348 polypropylene line, applicability of,
proximate and superseding cause doctrines, negligent use for towing, 232 may apply though attorney unaware of
applicable in admiralty, 268 shackle, too heavy, 99 crimes and does not further them, 313
sandblasting operations, negligent, 349 maintenance, negligent, Second Circuit adopts test for
unseaworthy vessel, winch, 52 determining, 53
crew, inadequate, 11, 52, 140, 188, 232, gangway, inapplicable,
311, 348 placement, improper, 188 where in-house lawyer assisted company
deck, secure to deck, failure to, 188 with contract negotiations, 189
keep clear, failure to, lighting, attorney-client relationship,
cardboard, 311 inadequate, 99, 348, 349 former clients,
dry cement, 348 loading operations, negligent, 348 duty of loyalty to, 100
non-skid materials, lack of, 11, 99, lookout, post, failure to, 140 prior representation of affiliated
311, 311 mooring, corporate entities prevents later
railing, provide, failure to, 99 unsafe disconnection method, 140 representation of one against others,
untidy, 99 pantry, 142
equipment, leaks, repair, failure to, 232 partnerships,
engine, nonskid materials, use, failure to, 232 attorney owes duty to both partnership
maintenance, negligent, 232 piloting, negligent, 232 and limited partners individually,
repair, negligent, 232 procedures, inadequate, 100
failure under proper and expected use luggage unloading, 188 retainer agreement,
may establish unseaworthiness, 311 release, six months’ notice requirement for
gangway, vessel has burden of showing release was termination, invalid, 389
placement, improper, 188 fairly made, fully comprehended, 233 conflicts of interest,
secure to deck, failure to, 188 seaman status, no disqualification,
inadequate, 52, 188 jury decides status of adult volunteer where representation of multiple
dolly, provide, failure to, 11 on 10-day boy scout cruise, 268 defendants may create appearance of
transmission, faulty, 140 professional sailor injured on first impropriety, 143
winch, 52 day of race is seaman, 268 disbarment,
lighting, inadequate, 99, 348 temporary ship repairs laborer allowed recklessly accusing judges of corruption, 53
pantry, to sleep on vessel in port is not disciplinary rules,
leaks, repair, failure to, 232 seaman, 268 unconstitutional,
nonskid materials, use, spud barge, Texas rule prohibiting harassing
failure to, 232 listing, severe, communications with discharged jurors,
polypropylene line, prevent, failure to, 311 313
inappropriate for towing, 232 Limitation of Liability Act, fees,
spud barge, inapplicability where waterway unsuitable contingency agreement,
listing, severe, 311 for maritime commerce, 417 does not authorize attorney to settle case
vessel status, no summary judgment although claimants without client’s consent, 100
spud barge, 311, 311 asserted corporate president’s negligence contingent fee multipliers,
LR-3
Attorneys - Aviation
do not apply where fees are authorized by log, falsification of, 101 trucking general contractors,
contract, not statute, 143 lookout, improper, 12, 13, 14, 54, 54, 54, hiring, negligent, 55
contingent fee payment, 101, 102, 143, 145, 189, 234, 234, 234, reflective tape, retrofit trailer with, failure to,
attorney must return where initial 235, 270, 271, 314, 314, 350, 350, 350, 55
judgment was reversed, 349 390, 390 trucking subcontractor,
fee award, mirror, use, failure to, 143 converter dolly,
in ERISA action, oversized load, towing of, 235 maintenance, negligent, 55
could exceed amount paid to in-house red light, stop, failure to, 314, 350, 390 retention, negligent, 55
counsel, 189 remove vehicle from road, failure to, 55, 143 spoliation of evidence, 55
fee calculation, residential areas, traveling through, 350 vicarious liability, 144, 350
cost of annuity determines fees where right-of-way, failure to yield, 13, 14
judgment includes periodic payments right turn, signal, failure to, Aviation
funded by annuity, 101 secure bag, failure to, 102
fee litigation, signal, failure to, 350 aircraft manufacturer liability,
firm that withdrew because ofc lients’ speeding, 13, 13, 14, 54, 54, 54, 144, 145, fuel system, defective, 271
refusal to settle could not collect 191, 234, 314, 350, 350, 390 need to fuel plane slowly, warn of, failure to,
fees, 233 stop, failure to, 13 271
Florida fee award statutes constitutional, vehicle, inspect, failure to, 55 aircraft owner liability,
12 employer liability, federal aviation regulations, violation of, 352
fee-splitting agreement, bus driver, follow safe flight formation procedures, failure
departing lawyer must give halfo f door, close, failure to, 270 to, 352
contingent fee to firm despite fee- engine, shut off, failure to, 270 negligent entrustment of helicopter to unfit
splitting deal with outside lawyer, parking brake, set, failure to, 270 pilot, 236
142 tires, bank, failure to, 270 air traffic controller error,
modifications to, entrustment, negligent, 12, 314, 390 give landing priority, failure to, 14
improper unless revisions are in writing hiring, negligent, 12, 101, 144, 351 make appropriate inquiries, failure to, 14
and client consents in writing, 142 Motor Carrier Safety Act, violations of, warn pilot of nearby mountains, failure to,
IOLTA, 144, 390 315
client may not have to surrender interest on policies encouraging drivers to speed and Airline Deregulation Act (ADA),
Texas IOLTA funds, 388 drive while tired, does not preempt state law personal injury
malicious defense, adoption of, negligent, 14 claims against airlines, 235, 391
New Hampshire recognizes tort of, 12 rear-vision cameras on truck, lack of, 54 airline liability,
sanctions, route selection, improper, 235 common carrier liability, 272, 272
Rule 11, supervision, negligent, 270, 351 security, proper, lack of, 145
not recoverable, training, negligent, 101, 235, 270, 351 willful misconduct, 145
where attorneys filed well-founded owner liability, 190, 191, 350 autopilot failure, 55
complaint without conducting parking brake, put on, failure to, 144 Federal Tort Claims Act (FTCA),
reasonable inquiry, 269 rental car companies, air traffic controller error, 14
where trial court dismissed complaint residual liability coverage, must provide, 315 helicopter,
during rule’s 21-day “safe harbor” retention, negligent, 12 engine components, defective, 15
period, 269 respondeat superior liability, overloaded, 236
recoverable, control vehicle, failure to, 14, 144, 144, 190, manufacturer liability,
where attorney’s withdrawal was 234, 234, 234, 314, 314 design, defective,
not in client’s best interests, 269 evasive action, take, failure to, 14 helicopter engine, engine components, 15
settlement proceeds, following too closely, 54, 143 pilot negligence,
attorney was liable for disbursing to client headlights, inspect, failure to, 190 assess weather information, failure to, 352
in disregard of other party’s lien, 349 lanes, change, failure to, 145 cross-country night flight,
lights, bright, turn on, failure to, 271 experience in, lack of, 271
Automobile Accidents log, falsification of, 101 federal aviation regulations, violation of, 352
lookout, improper, 12, 14, 54, 54, 54, 101, follow safe flight formation procedures,
bus company liability, 102, 143, 145, 234, 234, 271, 314, 350, failure to, 352
standards, large commercial vehicles, 350, 390 land at improper site, attempt to, 236
violation of, 13 mirror, use, failure to, 143 maintain control of airplane, failure to, 102
dram shop liability, 14 red light, heed, failure to, 271, 350, 390 properly conduct flight, failure to, 102
driver negligence, right-of-way, yield, failure to, 14 properly plan flight, failure to, 102
apply brakes, failure to timely, 14 right turn, signal, failure to, 143 select safe flight path, failure to, 352
control vehicle, failure to, 13, 14, 101, 144, speeding, 14, 54, 54, 54, 144, 145, 190, 314, taking off in dense fog, 191
144, 189, 190, 191, 234, 234, 235, 270, 390 unfitness due to “severe stress” claim, 236
314, 314, 351 stop, failure to, 351 use on-board weather radar to avoid thunder-
disabled vehicle, warn of, failure to, 55 signaling driver, storms, failure to, 352
evasive action, take, failure to, 14, 234 no duty to third-party motorists absent special Railway Labor Act (RLA),
following too closely, 54, 144, 350 circumstances, 190 does not preempt airline employee’s state
headlights, inspect, failure to, 190 trailer owner liability, law claims, 191, 351
intoxication, 13, 234, 351, 389, 390 reflectors, lack of, 101 nonunion employee wrongful discharge suits
lanes, change, failure to, 145 underride protection, lack of, 101 under, jury trials, punitives available in, 391
learner’s permit driver, negligence not transportation department, Warsaw Convention,
imputed to supervising passenger, 144 street lamps, loss-of-society damages,
lights, bright, turn on, failure to, 271 maintenance, negligent, 55 crash victims’ relatives cannot recover, 103
LR-4
Civil Rights - Consumer Protection
Civil Rights
and summary judgment stages, 192 insurance clients, 192
security guard, resort development loan, 317
Colorado’s Amendment 2, assault, 392 transfer to avoid paying royalties
precluding measures that protect homosexuals battery, 392 on medical device, 393
from discrimination, excessive force, 392 intentional interference claims,
unconstitutional, 236 developer asserts right of first refusal
First Amendment, Commercial Litigation applies to county dedications, 393
government contractors, insurer attempts to bypass agent to sell
protects against termination of contracts contract, breach of, directly to its customers, 192
for failing to support political candidates, Airline Deregulation Act does not preempt spurned financier’s fax of complaint on
272 tour operator’s claims against airline, 105 eve of alternative financing deal
independent contractors, developer’s right of first refusal, 393 could support, 104
protects against termination for speaking exclusive RV replacement cost insurance lender liability,
out on public issues, 273 agreement, 192 loan package agreement, 317
prison, loan package agreement, 317 resort development, 317
substance abuse program, medical device royalties agreement, 393 patent,
could not force inmates to attend, 392 motel construction contract, 274 infringement,
probation department, purchase order signed by only one party can fused silica furnace and production
AA meetings, give rise to contractual liability, 274 process, 16
could not be condition of probation, restaurant franchise agreement, 393 MRI machine techniques, 16
392 resort development joint venture, 317 interpretation of patent terms and extent
prosecutor, sales representative contract, 237 of protection afforded is question
no immunity for requiring woman to swear copyright, for trial court, not jury, 193
on Bible before dismissing charges, 316 attorney fees, statute of frauds,
violation of, prevailing defendant may recover subscription requirement,
retaliatory harassment by sheriff, 56 without showing suit was frivolous automatic fax page inscription,
42 U.S.C. § 1983, or brought in bad faith, 353 does not satisfy, 274
damages, infringement, trade secret misappropriation,
pain and suffering recoverable in survival animal mannequins used by taxidermists use of policyholder list to sell insurance
actions, 237 entitled to protection, 146 directly to agent’s customers, 192
municipalities, internet access provider liable where trademark,
governmental immunity, notified user had posted infringing infringement,
no entitlement to, material, 570 operator of swap meet where counterfeit
deputy sheriffs hired for crowd legal publisher’s pagination protected tapes are sold may be liable, 146
control services, 104 because method of arranging cases is unfair trade practices acts,
police, original, creative work, 354 antismoking organization could sue to stop
control, failure to, 15 operator of swap meet where counterfeit business from selling cigarettes
discipline, failure to, 15 tapes are sold may be liable, 146 to minors, 354
excessive force, 273, 353 recipes from compilation not entitled federal Cable Acts do not preempt state
parent-child relationship, interference to protection, 354 predatory pricing claim brought under, 16
with, 273 song collection,
supervise, failure to, 15, 15, 192 protects individual titles not listed
Consumer Protection
train, failure to, 15, 15, 192, 353 in copyright registration, 56
Cable Act,
treat 911 domestic violence calls as defamation,
emergencies, failure to, 103, 103 Airline Deregulation Act does not preempt no right ofa ction under,
unreasonable search and seizure, 192, 273 tour operator’s claims against airline, 105 cable subscribers challenging monthly
vicarious liability for officer’s use of potential lender denies relationship fee, 275
excessive force, 56 with loan broker, 317 construction defects,
police, discrimination, no duty to disclose to prospective purchasers,
arrest, false, 146, 146, 315 race, homeowners’ assocations, 106
assault, 315 42 US.C. § 1981, credit card company,
battery, 315 denial of multiple service stations late fees,
defamation, 146 to African American, 273 National Bank Act,
evidence, withheld, 15 First Amendment, no preemption, 57
excessive force, 15, 56, 64 ban on liquor price advertising violates preempts action alleging late fees
imprisonment, false, 146, 146, 315 First Amendment, 238 violated state consumer law, 58, 238
malicious prosecution, 146, 146 forum selection clause, Texas Debt Collection Practices Act,
search warrant, facts in, franchise agreement, violations of, 17
misrepresented, 15 presumptively invalid, 316 Depository Institutions Deregulation and
witnesses, manipulation of, 15 franchise agreements, Monetary Control Act (DIDA),
privacy rights, employee’s, covenant of good faith and fair dealing, no preemption,
no violation for employer’s disclosure of breach of, New Hampshire Simple Interest Statute,
HIV-positive status, 104 opening competing restaurant a mile 193
qualified immunity, and a half from franchisee, 393 Fair Debt Collection Practices Act (FDCPA),
corrections officers, privately employed, fraud, no violation,
not entitled to, 353 misrepresentation of continuing interest where out-of-state collection agency
officials may immediately appeal denials of in conducting business, 192 attempted to collect debt in another
qualified immunity at both dismissal nondisclosure of intent to directly solicit state without license, 355
LR-5
Consumer Protection - Employment Law
private student loan guaranty agency, counsel improperly instructed jury on knowing and voluntary, 20
subject to, 354 federal statutory cap during closing arbitration,
violation of, argument, 356 clause void where plaintiff claims failure
language in collection letters that falsely nuisance actions, to pay commissions and state wage claim
implies attorney was personally damages cover period between beginning and act prohibits waiver of rights, 197
involved in their mailing, 274 end of litigation, 58 contract, breach of,
language in collection notice that over- pain and suffering damages, implied,
shadows or contradicts mandated jury need not award where it awards damages not to fire without good cause, 240
notice, 105 for pain-related medical expenses, 395 demote, implied contract not to,
Federal Credit Reporting Act (FCRA), punitive damages, California recognizes, 108
investigative agency, Alabama adopts new procedures for assessing, Employee Retirement Income Security Act
rental applicant, accuracy of information 18 (ERISA),
on, cultural, educational barriers do not allows private cause of action
duty to ensure, 17 allow litigant to avoid, 276 where employees were deceived into
lemon law, not recoverable, giving up benefits, 195
pecuniary damages, in malicious prosecution case absent beneficiary claim to recover benefits
includes recovery of full purchase price showing of actual malice, 107 sounds in contract and entitles plaintiff
of car, 147 recoverable, to jury trial, 195
Song-Beverly Consumer Warranty Act, despite defendant’s death before trial, 148 employer may offer enhanced benefit for
distress and loss-of-use damages, recoverable unconstitutionally excessive, early retirement conditioned
only if monetary loss sustained, 238 where car manufacturer failed to disclose on employee’s release
telephone company, repairs, 239 of employment-related claims, 240
customers’ damages claims, settlement funds, 401(k) plan participants could sue
barred by filed rate doctrine, 394 in suit against union for breach of fair for fund mismanagement, 195
representation duty, preemption,
Damages excludable from gross income, 276 claim that placing employee on long-term
received from employer for ERISA disability constituted termination
actual damages, violations, in violation of state disability law
trial court may multiply without finding excludable from gross income, 318 not preempted, 196
that uncompensated damages exist, 18 wrongful death damages, retaliatory discharge,
distress damages, fetus, nonviable, ERISA protects those who have received
from fear of AIDS, recovery allowed, benefits, 277
plaintiff need not show actual exposure to South Dakota, 195 Section 510 action requires showing,
recover, 355 West Virginia, 58 of employer’s prohibited intent, 277
“physical injury” rule for analyzing claims, recovery denied, retiree health benefits,
Tennessee abandons, 194 New Mexico, 59 unilateral modification by employer, 241
recoverable, employment-at-will doctrine,
Connecticut allows damages for bystander Employment Law at-will employee could sue where employer
emotional distress, 239 refused to approve accrued sick leave, 320
where worker witnessed coworker’s death, after-acquired evidence, does not bar claims of fraudulent
107 may bar all recovery in wrongful discharge inducement to remain with employer, 241
economic damages, case not based on discrimination, 359 fair labor standards,
may be awarded without noneconomic post-employment conduct, overtime compensation,
damages, 18 inadmissible for any purpose, 109 pay, failure to,
nonsettling defendant could set off settlement age discrimination, paramedics, 197, 197
proceeds from award of, 107 Age Discrimination in Employment Act retiree health benefits,
economic loss rule, (ADEA), unilateral modification by employer, 241
did not bar fraud claims where economic award of 25 years’ front pay sales commissions,
losses sought were separate from breach of not excessive, 397 pay, failure to, 197
contract damages, 318 disparate impact discrimination, Family and Medical Leave Act,
in utero injuries, not recognized under, 109 no specific reference to act required, 20
inflicted by mother’s employer, employee may advance hostile work return to changed working conditions, 20
child may recover for, 395 environment claim under, 397 supervisors exercising sufficient control
interest, insurance agent, 397 over medical leave may be individually
postjudgment, replacement need not be outside liable, 149
North Carolina allows on entire award, 148 protected age group, 196 supervisors may not be individually liable
loss of consortium, supervisors are not individually liable under act, 149
damages cap does not apply where jury under act, 149 42 U.S.C. § 1983 violations,
instruction deleted reference to non- waiver of ADEA rights, First Amendment violations,
economic elements of consortium, 194 defective release can be ratified by teacher cooperated with audit, 20
parental, employees’ failure to return good faith and fair dealing,
child may not recover when parent is benefits, 20 covenant of,
injured but does not die, 103 invalid, implied in every contract,
lost property, where employer offering, severance breached where employer made it
plaintiff must prove market valuation would benefits does not provide worker’s impossible to earn bonuses described
be unfair where property has both market ages at open plants, 19 in contract, 241
and sentimental value, 356 totality of circumstances test handicap discrimination,
noneconomic damages, determines whether waiver was Americans with Disabilities Act (ADA),
LR-6
Employment Law - Family Law
does not bar employer from asking former could proceed because addressed matter state vehicle sales laws, 277
employee with known disability for of public concern, 358 for violating company policy by leaving
certification of ability, 60 quid pro quo actions, armored car unattended to thwart crime,
employee’s failure to communicate may harassment of other employees, 277
bar action, 149 testimony admissible, 60 on basis of handicap,
reasonable accommodation may include retail worker, 320 Tourette’s Syndrome, 242
providing parking near office, 60 retaliation,
violation of, police officer, 357 Evidence
employer policy requiring disclosure of “Blue Code of Silence” insufficient
prescription drug use, 110 to show pervasive retaliation, 358 admissible,
infertility, retail worker, 320 blood-alcohol test results in hospital
termination of employee seeking testimony plaintiff would be fired unless record, 110
treatment for, 242 she retracted discrimination claim was expert testimony,
refusal to extend medical leave admission requiring judgment about decedent’s future earning capacity,
for cancer treatment, 149 as matter ofl aw, 398 can support award where earnings
termination of salesman with disabled same sex harassment, history ofl imited predictive
daughter, 278 Title VII, value, 279
Tourette’s Syndrome, no protection under, 60 about quality of opposing expert’s
termination of employee protection under, 59, 60, 60, 60 examination, 61
suffering from, 242 state civil rights exclusive remedy from an engineer not licensed by the
Rehabilitation Act of 1973, provision does not bar claims of assault state, 197
reasonable accommodation may include or intentional infliction of emotional that asbestos exposure was a substantial
providing parking near office, 60 distress, 397 factor in development of cancer, 197
state law protections, subordinates’ creation of hostile affirmative fraud defense,
Tourette’s Syndrome, 242 environment supports state claim, 150 preponderance of evidence is proper standard
noncompetition agreements, supervisor may be individually liable of proof for, 399
enforceable, for sexual harassment under Title VII, collateral source evidence,
for two years within 30 miles, 358 149, 149 Alabama statute allowing personal injury
unenforceable, supervisor’s preferential treatment defendants to introduce,
for five years within 100 miles, of paramour does not constitute, 150 unconstitutional, 398
per se unreasonable, 358 Title VII, discovery issues,
where not supported by consideration, 358 does not protect former employees not discoverable,
Privacy, invasion of, from retaliation, 357 defendant’s insurance claim file prepared
employee could sue for disclosure of sexual protects former employees from retaliation, in anticipation of litigation, 321
orientation, 21 357 expert testimony,
race discrimination, trade secrets, not required in suit alleging doctor left
hostile environment, agreement not to disclose formerly secret foreign object in patient, 359
constructive discharge, 196 information that has lost trade secret hypnotically-refreshed recollections,
employer response, inadequate, 196 status is unenforceable, 358 admissibility of,
negligent infliction of emotional whistleblower protection, Second Circuit adopts totality-of-the-
distress, 196 goad faith requirement, circumstances approach, 61
replacement of employee by employee of employee must reasonably believe inadmissible,
same race does not prevent prima facie conduct was illegal, 319, 296 expert testimony not based on “good
showing under Title VII, 273 protects employees reporting third-party science,” 359
religious discrimination, violations affecting employer, 319 expert testimony that posttraumatic stress
Catholic police officer ordered to retaliation against teacher for cooperating syndrome caused defendant to make
protect abortion clinic may proceed with with audit, 20 inaccurate statements, 21
Religious Freedom Restoration Act termination of mental health care chain “fresh complaint” evidence,
(RFRA) and Title VII claims, 108 employee who reported abuse, 396 where abuse victim is child, 21
settlement agreements, third party cannot be liable for conspiring remedial measures evidence for impeachment
agreement prohibiting cooperation with to wrongfully terminate plaintiff, 319 purposes, 110
EEOC is void, 321 workers’ compensation laws, see also, Intentional Torts,
one-day period to consider waiver raised exclusive remedy provision did not bar Products Liability
question whether release was voluntary, employee’s intentional infliction scientific expert testimony,
321 of emotional distress claims, 398 correctness of,
sex discrimination, violation of, for the jury to determine, 242
hospital privileges of nonemployee retaliatory discharge, 59, 278 exclusion of,
physician harassing nurse, not preempted by federal labor law, 279 abuse of discretion proper standard
revoke, failure to, 319 wrongful termination, where summary judgment results, 399
lack of discrimination, inference of, for declaring bankruptcy, spoliation,
where same person hired and fired, bankruptcy laws do not protect private by plaintiff,
jury instruction proper, 61 job applicants from discrimination, 19 did not warrant summary judgment for
offering enhanced benefits to married state action not preempted by federal defendant, 279
employees’ families but not homosexual bankruptcy law, 19
employees’ partners violated state for refusing to violate laws/rules, Family Law
constitution, 396 accountancy professional conduct rules,
police officer, 320, 357 277 adoption,
First Amendment and § 1983 claims falsifying credit application, 277 by unmarried couples,
LR-7
Family Law - Insurance
New York permits, 62 marital property, municipal liability,
equitable adoption, early retirement incentive bonus, no discretionary immunity,
does not bar child from inheriting from does not constitute, 280 traffic sign, place properly, failure to,
natural parent, 323 restricted stock shares, repair, failure to, 199
alimony, constitute, 243 warn, failure to, 199
court may consider custodial parent’s child unmatured stock options, police,
care expenses in calculating, 151 do not constitute, 22 pursuit, unauthorized, 112
court properly imputed income to retiree necessaries doctrine, siren, activate, failure to, 282
based on ability to earn income in Florida strikes down, 198 speed, excessive, 112, 282
addition to retirement benefits, 360 separation exception to, spoliation of evidence, 112
social security may be garnished for alimony wife is liable for estranged husband’s roadway,
that accrued while obligee was custodial hospital bill where hospital did not concrete from, maintenance, improper, 199
parent, 401 have notice of their separation, 198 school district liability,
wife’s right to, prenuptial agreement(s), respondeat superior,
continues after husband’s death where enforceable, bus driver,
divorce decree provides for lifetime even though no specific asset disclosure, speeding, 152
payments, 400 111 state liability,
wife’s void second marriage does not invalid, Eleventh Amendment,
terminate first husband’s obligation to where wife used her assets to help further precludes tribe from suing in
pay, 280 husband’s business, 199 federal court, 199
child support, religion, guardrail, end post, break away, failure to,
Child Support Recovery Act of 1992 (CSRA), father’s restriction of children’s religious 324
unconstitutional, 63 activities interfering with school does highway, improper marking of, 244
credit, not violate their religious freedom, 111 intersection, dangerous, 152
for social security benefits paid to separation agreements, summer camp,
children, provision allowing attorney fee recovery, separate nonswimmers, failure to, 112, 152
retiring parent is not entitled to, permissible, 62 transit authority,
151 wills, supervision, negligent, 281
“deadbeat dad” law, effect of divorce, training, negligent, 281
unconstitutional, 63 bequests to former spouse’s children United States,
guidelines, revoked by operation of law, 111 assistant U.S. attorney,
deviation from, premarital, slander claim, absolute immunity from, 401
third-party contributions may be used valid regardless of whether premarital thrifts,
to support, 322 agreement showing intent to disinherit breach of contract with, 323
support payments in excess of, spouse is enforceable, 198
court can consider net worth in
Insurance
calculating, 22 Government Liability
husband must pay support to wife’s children automobile insurance,
even though blood tests show he is not city /county liability, anti-stacking provisions,
biological father, 400 bus stop, dangerous, 152 Hawaii law invalidates where New Jersey
may exceed child’s current needs, 243 depression, repair, failure to, 23 resident killed in Hawaii, 153
parent’s cohabitant, excavation, exclusion for injury to those driving with
income of, backfill, failure to, 23 insured’s permission did not prevent
court could consider in calculating barricade, failure to, 23 negligent entrusiient claims
award, 150 steel plate, place, failure to, 23 against insured, 153
pay, failure to, excessive force by police, 64 liability coverage,
federal law criminalizing, guardrails, lack of, 23 bad faith,
unconstitutional, 22 lead paint problem, insurer claims policy was canceled, 64
custody, abate, failure to timely, 361, 402 deceptive trade practices, 64
as against third parties, median barrier, construct, failure to, 23 denial of claim, 64
parents’ prima facie right of, police, insurer representing both parties fails
Pennsylvania abolishes, 150 direct pedestrians from accident scene, to make reasonable settlement offer,
best interest standard, failure to, 244 324
could not be used to award custody to false arrest, imprisonment, 361 no fault insurance,
nonparent over natural parent absent force, negligent use of, 361 Michigan insurer must pay guardianship
dependency or abuse and neglect, 360 move car at accident scene, failure to, fees of incapacitated insured, 152
modification of, 244 uninsured /underinsured motorist coverage,
endangerment standard applies where tree stump, cut to ground level, failure bad faith refusal to make reasonable
modification would result in change of to, 64 settlement offer, 245, 324
residential custody, 322 Federal Tort Claims Act (FTCA), failure to pay underinsured motorist
divorce, action under, benefits on family vehicle, 244
res judicata does not bar post-divorce fraud federal worker raped by boss, 22 insurer entitled to set off liability
action even though fraud issue had been federal employee, limits by settlement amounts, 154
raised in divorce, 281 VA resident physician, 64 insurer entitled to set off settlement
equitable parent doctrine, limitations period, with one tortfeasor against total
where nonparental custody is in child’s best agency must mail counsel notice denying damages, not uninsured motorist
interest, administrative claim to start running liability limit, 153
Iowa recognizes, 62 of, 402 policy limiting liability to “$100,000
LR-8
Insurance - Medicine
per person, $300,000 each accident” was breach of, malicious prosecution,
ambiguous and would be interpreted CERCLA counterclaims against state, where store falsely accused woman of check
against insurer, 245 23 fraud, 246
UIM claimant does not have to submit litigation privilege asserted in bad faith sexual abuse,
claim to arbitration after securing action did not protect statements concepts of sexual abuse and injury are same
judgment against tortfeasor, 325 by insurer’s counsel during coverage under Minnesota’s delayed discovery rule,
UIM limitations statute begins to run litigation, 112 283
on date of accident, 325 pollution exclusion did not apply to spoliation of evidence,
business liability insurance, muriatic acid etchings, 24 in water skiing accident, 65
advertising injury coverage, New Mexico recognizes, 25
alleged misappropriation of marketing
Intentional Torts
strategies triggers duty to defend, 362
Medicine
alleged trademark infringement triggers assault,
duty to defend, 362 sexual, 65 1. Specific Misconduct
claimant may assert equitable estoppel battery,
against tortfeasor’s insurer that where man pulled from car and beaten, 246 anesthesiology,
misrepresented available coverage, 403 where man struck in face with beer glass, optic nerve, blood flow to, cut off during
duty to defend extends to hostile 284 surgery, 202
environment sexual harassment claims, 200 where teenager struck with croquet mallet, reintubate, timely, failure to, 114
exclusion in gym’s policy for claims 154 respond to call for emergency cesarean
involving sexually transmitted diseases defamation, section, failure to, 202
did not relieve insurer of duties absolute privilege against, county liability,
stemming from expulsion applicable, patient transfer, improper, 155
of gym member with AIDS, 403 where statements were made in cytotechnology,
hostile environment race discrimination preliminary, investigatory form, 326 Pap smear, misread, 26
claim, by conduct, diagnose,
no coverage where only financial loss Minnesota does not recognize, 154 failure to,
claimed, 200 courts must consider full context in which amoebic dysentery, 26
personal deviation exclusion, denial under, allegedly defamatory statement was made, breast cancer, 66, 284, 327
salesman’s death from autoerotic 362 cervical cancer, 66
asphyxiation, 245 for unfavorable statements in reference, H-flu meningitis, 66
disability insurance, not actionable where applicant had lupus, 284
denial of benefits, signed release, 326 rectal cancer, 285
bad faith, 282 litigation privilege against, sepsis, 284
failure to investigate, 282 applies to communications preliminary to emergency medicine,
misrepresentation of benefit judicial proceeding, 362 arterial venous malformation,
qualifications, 282 New York newspaper could be sued in diagnose, failure to, 363
health insurance, California for defaming California H-flu meningitis, diagnose, failure to, 66
denial of cancer treatment claims, resident, 403 family practice,
agent fills out wrong forms, 200 where insurance agent accused of paying epidural abscess,
may violate Americans with Disabilities kickbacks, 201 diagnose, failure to, 405
Act, 24 immunity for, specialist, consult, failure to, 405
economic loss rule does not bar fraud where alleged intentional torts were treadmill test,
in the inducement claim against agent, committed within scope of federal administration of, negligent, 405
403 employment, 404 gastroenterology,
ERISA preemption is affirmative defense infliction of emotional distress, pseudomembranous colitis,
that is waived if not timely asserted, actionable, diagnose, failure to, 405
113 abortion protestors’ display of ruptured esophagus,
insurer violated ERISA and breached women’s names, 25 diagnose, failure to, 203
fiduciary duty when it negotiated with groom calls off wedding, 65 treat, failure to, 203
hospital for discount, 24 in sexual abuse suit, 201, 325 general medicine,
home insurance, in sexual harassment suit, amoebic dysentery,
fire, conduct outside limitations period is diagnose, failure to, 26
claim, pay, failure to, 199 admissible to evaluate claim of, 113 treatment of, improper, 26
investigation, abusive, 199 invasion of privacy, general surgery,
life insurance, actionable, breast cancer, diagnose, failure to, 66
fraud, based on abortion protestors’ display of catheterization, negligent, 114
agents’ failure to turn over policy women’s names, 25 laparoscopic cholecystectomy,
proceeds to company, 282 not actionable, common bile duct,
failure to properly investigate attorney’s inspection of expert’s severing of,
after discovery of agent fraud, 282 personnel records for cross-examination negligent, 203
misrepresentation that policy would not purposes, 113 notify, failure to, 203
require future premium payments, 79 public disclosure of private facts condition, deteriorating, cause of,
incontestability clause requires payment relating to sexual assault victim’s timely diagnose, failure to, 364
of proceeds despite insured’s failure identity, 25 cystic duct,
to disclose HIV-positive status, 402 joint concerted tortious conduct, identify, failure to, 327
pollution coverage, where teenager struck with croquet mallet, stones, treatment of,
duty to defend, 154 improper, 203
LR-9
Medicine - Negligence
gallbladder removal, cesarean section, timely, perform, failure expert testimony,
open procedure, convert to, to, 156 admissible if helpful to trier of fact and
failure to, 327 fetal distress, recognize, failure to, 156 based on reliable information, 155
postoperative pain, cause of, determine, monitoring, improper, 156 out-of-state experts need not contact local
failure to, 203 neurosurgery, physicians to determine community
gynecology, high-speed drill, standard, 156
breast cancer, diagnose, failure to, 155,327 use of, improper, 363 HIV infection,
cervical cancer, diagnose, failure to, 66 lumbar disk, removal of, improper, 285 notify third party of, duty to, 405
health maintenance organization nursing liability, injury,
liability, decubitus ulcers, treatment of, negligent, 67 enhanced risk of,
benefits, termination of, wrongful, 26 nurse anesthetist, does not trigger limitations statute, 405
contract, breach of, 26 optic nerve, blood flow to, cut off during jurors,
negligence, 26 surgery, 202 court’s refusal to excuse two jurors
health plan liability, pediatrics, treated by defendant doctor was error, 363
patient transfer, request for, negligent, 155 narcotic epidural, monitoring of, medical records,
hematology, improper, 327 defendants’ release forms too broad, 114
Morphine, administration of, negligent, 363 obstetrics, residents’ negligence,
home health care service liability, cancer severity, exaggeration of, 114 on-call physicians may be liable for, 284
decubitus ulcers, treatment of, negligent, 67 cesarean section, timely, perform, failure society, loss of,
hospital liability, to, 156, 202, 326 for future unborn children,
adult intensive care unit, lack of, 26 Danocrine, prescription of, improper, 115 patient and husband could not recover, 404
cesarean section, timely, perform, failure delivery, premature, 114 sovereign immunity,
to, 156, 363 fetal age, miscalculation of, 114 no bar to “patient dumping” claim, 26
disk surgery, improper, 155 fetal distress, recognize, failure to, 156 vicarious liability,
emergency medicine, informed consent, lack of, 114 hospital not vicariously liable for
arterial venous malformation, monitoring, improper, 156 technician’s assault of patient, 114
diagnose, failure to, 363 prolapsed umbilical cord, mismanagement warn,
fetal distress, recognize, failure to, 156 of, 202 duty to,
fetal monitoring, proper, vacuum extraction, attempted, negligent, 202 of disease’s communicability, 327
conduct, failure to, 363 orthopedic surgery, patient’s children,
H-flu meningitis, diagnose, failure to, 66 wound infection, about genetic diseases, 363
hyperbilirubinemia, diagnose, failure to, 155
timely diagnose, failure to, 364 osteopathy,
lll. Medical Negligence Statutes
in-house physician, full time, lack of, 26 oncology,
intrauterine fetal death, refer to cancer specialist, failure to, 66 Emergency Medical Treatment and Active
misdiagnosis of, 363 surgery, Labor Act (EMTALA),
laparoscopic cholecystectomy, clear margins, failure to obtain, 66 42 US.C. § 1395dd ets eq.,
cystic duct stones, treatment of, lymph node, healthy, removal of, 66 hospital may be liable for failing to
improper, 203 otolaryngology, properly treat patient complaining of
postoperative pain, cause of, determine, cribriform plate, penetration of, 202 chest pains, 66
failure to, 203 pathology, sovereign immunity,
monitoring, improper, 156 prostate cancer, diagnose, failure to, 114 no bar to patient dumping claim, 26
Morphine, administration of, negligent, 363 pediatrics, transfer restrictions,
optic nerve, blood flow to cut off during pneumonia, diagnose, failure to, 364 apply only where hospital determines
surgery, 202 surgical center liability, existence of emergency medical
pituitary gland, low-functioning, diagnose, anesthesia machine, outdated, condition, 327
failure to, 202 upgrade, failure to, 285 Employee Retirement Income Security Act
prostaglandin gel, administration of, use of, 285 (ERISA)
negligent, 26 urology, 29 U.S.C. § 1001 et seq.,
radiology, prostate cancer, diagnose, failure to, 114 does not preempt claims against union
breast cancer, diagnose, failure to, 405 for clinic doctors’ negligence, 405
ll. Medical Legal Theories
resuscitation, negligent, 26 does not preempt vicarious liability claim
staff negligence, 202 AIDS, against health maintenance
house call service liability, HIV status, organization, 284
diabetes, diagnose, disclosure of, Military Claims Act,
failure to, 404 health care workers could be liable for intracerebral hemorrhage,
independent contractor liability, disclosing, 327 diagnose, failure to, 114
emergency medicine, plaintiff may recover for fear of treat, failure to, 114
wound treatment, improper, 155 contracting absent actual exposure, 202 tort “reform”,
internal medicine, test report, erroneous, Illinois trial court strikes down key
coronary artery disease, treatment of, plaintiff could sue based on, 326 provisions, 115
improper, 327 comparative fault,
Ionamin, prescription of, negligent, 26 applied in Tennessee medical negligence Negligence
laboratory liability, action where decedent caused initial
Pap smear, misread, 26 injury, 203 amusement park liability,
medical center liability, emotional distress, emergency response plan, inadequate, 328
operating table, maintain, failure to, 26 recovery for, ride attendants,
midwife liability, outrageousness showing unnecessary, 285 training, inadequate, 328
LR-10