Articles Posted in Federal Law

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The U.S. Court of Appeals for the 7th Circuit in Chicago has affirmed a decision by a United States district court judge regarding subject-matter jurisdiction and a voluntary dismissal of a complaint.

Mieczyslaw Kuznar, a native of Poland, moved to the United States leaving his wife, Emilia, and his son, Thomas, behind. While living in the United States, Kuznar married Anna, but never divorced Emilia. Kuznar died intestate in 1995. Anna began collecting spousal benefits from his pension the year of his death.

In 1997, Thomas, by that time an adult, opened a probate estate in the Illinois state court seeking judicial administration of his father’s estate. Thomas was acting on his mother’s behalf; she continued to live in Poland.

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In this year 2015, the Voting Rights Act of 1965 (“VRA”) was heralded as “the most effective civil rights law in the history of the United States,” Richard L. Engstrom, Race and Seven Politics, 10 ELECTION, L.J. 53, 53 (2011). The 50 years since the Voting Rights Act of 1965 was made law was predated by many U.S. Congressional acts or attempts to enact protection of the voting rights of all American citizens. In fact, in 1870, Henry Cabot Lodge proposed a “Forced Bill,” a law that would reinforce an 1870 law that gave force to the federal government to make sure that all phases of registration and voting, particularly in Southern states, was protected. This bill passed the House of Representatives but failed in the Senate. From that time, through the 1880s, right up to the present day and including 1965, the right to vote has been under attack or has been in some places limited by voter IDs and other state law measures to limit the number of poor, elderly, convicted felons and others from voting in local, state and national elections.

In the 2013 decision of Shelby County, the 1965 Voting Rights Act was weakened by a 5-4 decision in the U.S. Supreme Court that held that Section 4 coverage formula was unconstitutional. The U.S. Supreme Court asserted that that section was not adequately grounded in “current conditions.” Shelby County, 133 S.Ct. at 26-29.

Interestingly enough, the Supreme Court, in limiting the impact of the Voting Rights Act of 1965, did so even though Congress reauthorized the Voting Rights Acts in 2006 by overwhelming votes in both the U.S. House and the Senate. There were reports that Congress reviewed 15,000 pages of evidence showing persistent discrimination in voting in the 9 southern states of jurisdictions that were covered under the Act.

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All evidence is required to meet the foundation requirement of admissibility, which would include relevancy, the best evidence rule and hearsay. Under the law, the courts require authentication because before a tangible object or writing can be admitted into evidence, it must be shown that it is in fact what it claims to be. Thus evidence that is not authenticated is not relevant and must be excluded from consideration by the court.

Digital evidence has the same requirements as all other evidence in terms of authentication and foundation before it could be admitted into evidence. Digital evidence is also known sometimes as electronically stored information (ESI). That phrase was made a part of the Federal Rules of Civil Procedure in 2006. The leading case on the application of the Federal Rules of Civil Procedure and adopted by Illinois came to be in the 2007 Maryland case of Lorraine v. Markel American Insurance Co., 241 F.R.D. 534 (D. Md. 2007). In that case, magistrate Judge Paul Grimm of the U.S. District Court for the District of Maryland noted that the failure to authenticate ESI “almost always is self-inflicted injury which can be avoided by thoughtful advanced preparation.”

One of the principal problems with digital evidence is that it can be manipulated, changed, fabricated by hackers and other sophisticated software users. It is also difficult to show to the court who was responsible for creating the digital evidence, whether it was on a keyboard on a computer or by cell phone or iPad. In some mobile apps, text messages seem to come from a particular person’s telephone, when in fact they did not. But evidence authentication does not require certainty. People v. Anderson, No. 311448, 2014 W.L.1383399 at 4 n. 3 (Mich. Ct. App. April 8, 2014); State v. Mays, 729 A.2d 1074, 1079 (N.J. Super. Ct. App. Div. 1999). In these cases dealing with authenticity, the parties hired experts to testify about who was the sender or recipient of certain digital evidence.

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Shannon Brown sued the Burlington Northern Santa Fe Railway Co. under the Federal Employers’ Liability Act, 45 U.S.C. Section 51, et seq. Brown started as a laborer and worked his way to foreman, track inspector and machine operator by 2009.

In 2007, he was diagnosed with carpal tunnel syndrome in both wrists and cubital tunnel syndrome of the left elbow. In October 2007, Brown suffered a right shoulder injury but was pain-free in December 2007. In 2007 and 2008, Brown had carpal tunnel surgery to both of his wrists. In 2009, he underwent surgery on his left elbow. In January 2010, Brown returned to work without any medical restrictions. In September 2011, he left his employment at the railroad.

Brown filed a lawsuit in 2009 claiming that the cumulative trauma caused his wrists, elbow and shoulder injuries. During discovery, Brown hired Dr. David Fletcher to serve as his expert witness to give his medical opinion that the railroad caused his injuries. Dr. Fletcher graduated from Rush Medical College in Chicago, obtained a master’s degree in public health and was a fellow in the American College of Occupational and Environmental Medicine. He was also an assistant professor at the University of Illinois and one of two doctors serving on the Illinois Workers’ Compensation Commission.

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The U.S. Court of Appeals in Chicago has affirmed a decision of the U.S. District Court for the Northern District of Illinois dismissing a lawsuit against a Wal-Mart store for injuries suffered by Kristen Zuppardi. She went to the Wal-Mart store in Champaign, Ill., with her brother and her son on June 15, 2010. When she entered the store, Ms. Zuppardi took a shopping cart from the front of the store and then walked down one of the main aisles of the store. Ms. Zuppardi was on her way to the back of the store to purchase milk. As she was walking down the aisle she slipped and fell in a puddle of water on the store’s concrete floors. She filed a complaint against Wal-Mart in state court in June 2012. The case was removed to the Federal District Court by Wal-Mart for diversity of citizenship jurisdiction.

One of the Wal-Mart store’s assistant managers, George Steward, stated that he did not witness the fall, but that he knew that because the fall occurred in close proximity to the store’s back doors, Wal-Mart personnel would have promptly dealt with the puddle even if the plaintiff had not fallen.

Wal-Mart was unable to locate the customer’s incident file of this occurrence and was accordingly incapable of producing any documents related to the investigation other than five photographs depicting the location of the fall and a report submitted to Wal-Mart’s casualty claims administrator. There was no video footage available.

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In a commodities fraud case, it was contended by the plaintiff, the Commodity Futures Trading Commission (CFTC), that previous versions of a defendant expert’s report should be produced and not be privileged because of communications between the lawyer and this expert witness.

In 2010, the work-product privilege provided by Federal Rule of Civil Procedure 26(b)(4)(B) and (C) was extended to cover drafts of reports from experts with three exceptions. This privilege extends to communications between lawyers and experts.

The CFTC argued that the defendants “should be deemed to have forfeited Rule 26(b)(4)’s work-product protection because there is evidence that defendants’ counsel participated in drafting sections of the report.” The U.S. magistrate judge handling this U.S. District Court case rejected the CFTC’s forfeiture argument stating: “The CFTC’s approach would require an analysis of the degree of counsel involvement (both quantity and quality) in the drafting of the report. Such an analysis would necessarily require production of all of the drafts of the report for comparison, as well as production of all, or virtually all, communications between expert and counsel. The drafters intended Rule 26(b)(4)(B) and (C) to protect against that discovery.”

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The U.S. Court of Appeals for the 7th Circuit in Chicago has reversed the decision of a U.S. District Court judge wherein an agreement between the parties, Hennessy Industries Inc. and National Union Fire Insurance Co. of Pittsburgh, required arbitration of any dispute that mandated an interpretation of the agreement. In this case, Hennessy Industries manufactured car parts. Since the 1980s, Hennessy has been the named defendant in many lawsuits for asbestos-related personal-injury cases. Hennessy has been looking to National Union Fire Insurance Co. of Pittsburgh for insurance coverage for these claims. The two companies entered into a cost-sharing agreement in 2008.

When the lawsuits for asbestos-related injuries started coming in, Hennessy requested that National Union indemnify it for settlement and defense costs as provided for in their agreement. The two parties, however, could not come to an agreement as to what was owed. Hennessy demanded arbitration in line with the agreement, which provided for arbitration of disputes between the parties.

Hennessy filed suit in 2013 under 215 ILCS 5/155(1), maintaining that National Union’s delays in granting coverage of the asbestos claims had been vexatious and unreasonable.

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Robert Lodholtz was seriously injured in 2011 while working at a plant owned by Pulliam Enterprises in Indiana. Lodholtz filed a personal-injury lawsuit against Pulliam in the Indiana state court. Pulliam called on Granite State Insurance Co., its primary liability insurer, along with New Hampshire Insurance Co., to defend and indemnify it against the lawsuit.

Granite State refused to indemnify Pulliam stating that Lodholtz as an employee should pursue his claim for worker’s compensation. Lodholtz disagreed arguing that he was employed by another company while he worked at Pulliam’s plant and therefore had no basis for a worker’s compensation claim.

Pulliam chose not to file an answer to the complaint, so Lodholtz moved for default judgment, which was granted. Lodholtz then agreed with Pulliam not to pursue the default judgment and in return Pulliam assigned to Lodholtz its rights against Granite State. Granite State then moved to intervene in Lodholtz’s lawsuit. The Indiana state court denied the motion to intervene.

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A U.S. district court judge has rejected the attempts of Takeda Pharmaceutical Co. and Eli Lilly & Co. to overturn the combined $9 billion punitive-damage award that a jury recently returned. The verdict came down in a case that involved claims that the drug makers chose to hide the cancer risks of their Actos diabetes drug. The presiding judge held that the jury properly considered evidence that showed officials of the Osaka, Japan-based Takeda, and Indianapolis-based Lily had advance knowledge that Actos was associated with bladder cancer and chose not to properly and efficiently warn doctors and patients about those risks.

However, although the judge upheld the jury’s verdict, the judge is still considering another motion that was brought post-trial by the defendants for a new trial. That motion is pending for a case of Terrence Allen v. Takeda, et al., which was the first federal trial over claims that Actos causes bladder cancer.

The widespread sales of the Actos pharmaceutical product reached its highest level on March 2011 when the product had sales of $4.5 billion and accounted for 27% of Takeda’s revenue in total. Since the time Actos was released by Takeda in 1999, it had made sales in excess of $16 billion. Today Takeda must contend with generic competition from other drug makers.

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The U.S. Occupational Safety and Health Administration (OSHA) has revised its reporting requirements when an employee dies on the job or suffers a work-related hospitalization, amputation or loss of an eye. If an employee is severely injured, employers will now be required to immediately notify OSHA of the work-related fatality within 8 hours and work-related in-patient hospitalizations, amputations or loss of an eye within 24 hours. This shortened the timing that employers are required to notify OSHA of these serous injuries.

In the past, OSHA was required to report only work fatalities and in-patient hospitalizations of three or more employees. In other words, if only one employee died or was seriously injured at work, no report to OSHA was required.

The new reporting rule goes into effect Jan. 1, 2015 and is particularly directed at workplaces under federal OSHA jurisdiction. This would exempt companies who employ 10 or fewer individuals regardless of the industry classification.

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