Central Falls Bankruptcy Case starts to heat up.

The Providence Journal reports that the Receiver of Central Falls, former Supreme Court Justice Robert G. Flanders Jr., withdrew a motion that would have called the question of whether the Receiver can use bankruptcy powers to reorganize the city’s finances, contracts and claims.

That means the main legal event may have to wait until next month, when the city’s unions are expected to file their formal written challenges to Flanders’ bankruptcy filing.

At least one of them, the Fraternal Order of Police Lodge No. 2, indicated in a filing Tuesday that it plans a challenge.

“The order for relief may be entered only upon a determination that the debtor has demonstrated it was eligible to file the petition and that the petition was filed in good faith,” FOP lawyer Diane Finkle argued in her filing. “The debtor herein has yet to establish such eligibility in light of the opposition to its petition.”

Special bankruptcy Judge Frank J. Bailey has set Sept. 16 as the deadline for filing objections to the bankruptcy, along with affidavits to support those arguments.

But that is about two weeks after the time Flanders has said he hopes to have a fiscal reorganization ready for the court to approve. In the meantime, he and the unions continue to negotiate possible out-of-court agreements.

Flanders’ lawyer, Theodore Orson, has said Flanders believes he is acting correctly under the law and expects Bailey to agree. Lawyers for the unions have declined to speculate on how Bailey might rule or how a ruling might be implemented.

This will be a legal challenge that everyone will be paying attention to.

Senate Ready to Stiff Arm McConnell?

The Providence Journal is reporting that the United States Senate might continue to ignore the over-worked and back-logged US District Court in Rhode Island by not having an up-or-down vote on President Obama’s nominee to the Court: John (“Jack”) J. McConnell (who has widespread, bipartisan support for his nomination).

Senate Republicans have permitted several votes in recent days to confirm non-controversial nominees to the federal courts. But they have shown no sign of allowing floor votes on four nominees, including McConnell.

With time running out on the lame-duck legislative session, meanwhile, the majority Democrats have not taken the time-consuming steps needed to force confirmation votes for McConnell and the other controversial nominees.

The Associated Press reported Monday that Republican and Democratic Senate leaders had made an agreement to allow confirmation votes on at least 19 non-controversial nominations to the judiciary –– 10 of whom have already been confirmed without dissent. The offices of Majority Leader Harry Reid and Minority Leader Mitch McConnell would not confirm the AP report.

AP, citing unnamed sources, said the Democrats agreed in return not to seek votes on McConnell and three others: Goodwin Liu, a prominent California law school professor nominated to the San Francisco-based Ninth U.S. Circuit Court of Appeals, and two federal district court prospects, Louis B. Butler Jr. of Wisconsin and Edward Chen of California.

That echoes the situation last summer, when the Senate passed a consensus package of President Obama’s nominations –– including several to the judiciary –– as Congress rushed to its August adjournment. McConnell, Liu, Butler and Chen were excluded from the deal, so their nominations were sent back to the White House. Mr. Obama renominated them in September. If they fail to win Senate confirmation in what time remains of this Congress, the rules require that their nominations again be returned to the president. None of the men can then be considered for the federal bench without being renominated by Mr. Obama –– for a third time –– in the new Congress.

“We are continuing to work on an agreement with Republicans and hope to confirm as many of the president’s nominations as possible before the end of the year,” said Regan Lachapelle, a spokeswoman for Reid. Don Stewart, spokesman for the Republican leader, would not comment on the AP report.

The fact that Republican Senators are publicly threatening to filibuster a District Court nominee and that Democratic Senators can’t deliver this nominee while controlling huge majorities of both houses of Congress for the last two years is tragic in more ways than one.

Rhode Island Mourns the Death of Joe Fernandez

Rhode Island was shocked to learn on Saturday night that former Providence city solicitor and candidate for Attorney General, Joe Fernandez, passed away – leaving his wife Emily and his two young daughters Coco and Phoebe.

Joe was a tremendous community leader, legal mind and generous human being.  The state and the nation mourn the loss of such a young and promising leader.

The Providence Journal had this:

President Obama on Sunday joined in mourning the death of Joseph M. Fernandez, the former Providence city solicitor and unsuccessful candidate for attorney general.

“I was shocked and saddened to learn today of the passing of my friend and colleague Joe Fernandez,” Obama said in a statement.

Fernandez, who was 46, died Saturday at Miriam Hospital after a short illness.

“From our time together in law school to his work as a dedicated public servant in Providence, I knew Joe as someone who had lived the American dream and was committed to protecting it for his fellow citizens,” the President said.

“He will be deeply missed. My thoughts and prayers are with Joe’s wife, Emily, and two young daughters in these most trying of times.”

In addition to being Obama’s law school classmate, Fernandez had served at co-chair of Obama’s presidential campaign in Rhode Island.

Services will be held at 11 a.m. on Thursday morning, December 23, at Central Congregational Church in Providence.

Calling hours will be held from 4 p.m. to 8 p.m. on Wednesday evening, December 22, at Monahan Drabble Sherman, 230 Waterman Street, Providence (Wayland Square).

Donations may be made to The Coco and Phoebe College Fund, c/o 286 Doyle Ave, Providence, RI 02906.

Jury Finds Tobacco Company Liable for Racial Targeting in Smoker’s Death

The Boston Globe reports that a Suffolk County Superior Court jury found the Lorillard Tobacco Company “liable for the death of a Roxbury woman who said that, at age 9, she received free samples of Newport cigarettes in a targeted marketing campaign.”

The estate of the deceased Marie Evans and her son, who filed a wrongful death suit in 2004, won a combined $71 million award.

In videotaped depositions, Marie Evans “testified that Lorillard representatives drove around the Orchard Park apartments in a white box truck-similar to an ice cream truck-passing out Newports to her and other children.”

The jury found Lorillard “negligent in marketing Newports to children such as Evans and failing to warn her of the health risks.”

The Globe adds, “The verdict sets up a second phase of deliberations in which the jury could also award Evans’s estate and family punitive damages, which often are a multiple of the amounts awarded in the compensatory phase.”

RI Supreme Court overturns denial of Motion to Withdraw

The Rhode Island Supreme Court issued an opinion today in Stafford J. King III v. NAIAD Inflatables of Newport, Inc., No. 09-141 (December 14, 2010) wherein the Court overturned a Motion Justice’s decision that denied counsel’s motion to withdraw that was filed on the eve of trial.

The court wrote the following regarding Duffy, Sweeney and Scott’s appeal:

In view of the legitimate concerns and hardships raised by D&S, we believe that the hearing justice placed too much emphasis on maintaining the trial date, overstated the adverse impact on the clients, and did not adequately consider the unreasonable financial burden that would befall D&S.

For the reasons stated above, the Superior Court order on February 6, 2009, denying counsel’s motion to withdraw, is reversed. This case is remanded to the trial court for the entry of an order granting the motion to withdraw.

The RI Bar Association and the RI Association for Justice filed amicus briefs in support of the appellant in this matter.

Conservative Federal Judge Deems Portion of Health Care Law Unconstitutional

After two federal judges had deemed the new Health Care law constitutional, a Virginia federal judge appointed by George W. Bush has deemed it’s “individual mandate” provision unconstitutional.  The New York Times has the story:

A federal judge in Virginia ruled on Monday that the keystone provision in the Obama health care law is unconstitutional, becoming the first judge to invalidate any part of the sprawling act and ensuring that appellate courts will receive contradictory opinions from below.

The judge, Henry E. Hudson of Federal District Court in Richmond, said the law’s requirement that most Americans obtain insurance exceeded the regulatory authority granted to Congress under the Commerce Clause.

(…)

In a 42-page opinion, Judge Hudson wrote: “Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.”

Allowing Congress to exert such authority, he said, “would invite unbridled exercise of federal police powers.”

Compelling vehicle owners to carry accident insurance, as states do, is considered a different matter because the Constitution gives the states broad police powers that have been interpreted to encompass that. Furthermore, there is no statutory requirement that people possess cars, only a requirement that they have insurance as a condition of doing so. By contrast, the plaintiffs in the health care case argue that the new law requires people to obtain health insurance simply because they exist.

The insurance mandate is central to the law’s mission of covering more than 30 million people who are uninsured. Insurers argue that only by requiring healthy people to have policies can they afford to pay for those with expensive conditions. But Judge Hudson ruled that many of the law’s other provisions could be severed legally and would survive even if the mandate is invalidated.

Judge Hudson is the third district court judge to reach a determination on the merits in one of the two dozen lawsuits challenging the health care law. The other judges, in Detroit and Lynchburg, Va., have upheld the law. Lawyers say the appellate process could last another two years before the Supreme Court settles the dispute.

The opinion by Judge Hudson, who has a long history in Republican politics in Northern Virginia, continued a partisan pattern in the health care cases. Thus far, judges appointed by Republican presidents have ruled consistently against the Obama administration, while Democratic appointees have found for it.

$300,000 Verdict in Providence County Landlord/Tenant Slip and Fall

RI Lawyers Weekly has the details on my first trial which resulted in a favorable verdict for the plaintiff:

The defendants purchased a three-unit investment rental property on July 18, 2005. At the time, defendant No. 1 was a town building official and defendant No. 2 was the town planner, a job he retains today.

They leased a first-floor, two-bedroom apartment to the plaintiff, a longtime self-employed plasterer, in January 2006, although a certificate of occupancy was not issued until four months later.

The plaintiff reported to the defendants that leaks were coming through the ceiling in early 2006. The defendants traced the leaks to the roof and then attempted to make temporary repairs using a liquid tar product. They performed the repair in late January, but did not properly follow the instructions on the product.

On July 3, the plaintiff unlocked his door and began to enter the unit through the rear entrance. When he stepped onto the linoleum floor, he slipped and fell, fracturing his left wrist while trying to brace his fall.

Immediately after the fall, he noticed that there was a puddle on the kitchen floor caused by a leak in the ceiling above.

Within a few weeks of the injury, the defendants hired a contractor and replaced the roof.

The plaintiff underwent surgery in February 2007 to his left wrist, his dominant hand. A plate and several pins were placed, and he was rendered unable to work.

The jury returned a verdict of $300,000, attributing 20-percent negligence to the plaintiff.

Action: Premises liability

Injuries alleged: Fracture, nerve damage

Name of case: Scorpio v. Goff, et al.

Court/case no.: Providence County Superior Court, No. 07-4130

Jury and/or judge: Jury/Susan E. McGuirl

Amount: $240,000

Date: Nov. 4, 2010

Attorneys: Jeffrey A. Mega and Matthew T. Jerzyk, Deluca & Weizenbaum, Providence (for the plaintiff)

7 New Judges Confirmed in Rhode Island Superior, District & Family Courts

The Rhode Island Senate confirmed 7 judges last week, according to the Providence Journal:

• Family Court Associate Justice Haiganush R. Bedrosian has been confirmed as the Chief Justice of the Family Court.
• Walter R. Stone has been confirmed as an Associate Justice of the Superior Court.
• Sarah Taft-Carter has been confirmed as an Associate Justice of the Superior Court.
• Brian Van Couyghen has been confirmed as an Associate Justice of the Superior Court.
• Family Court Magistrate Colleen M. Hastings has been confirmed as an Associate Justice of the District Court.
• District Court Magistrate Christine S. Jabour has been confirmed as an Associate Justice of the District Court.
• Warwick Probate Court Judge Stephen Isherwood has been confirmed as an Associate Justice of the District Court.

The Journal notes the lasting legacy of outgoing Governor Don Carcieri:

The confirmations seal a legacy for the outgoing governor: He has named more than half of the state’s 62 judges, including four of the five who sit on the Supreme Court. He has put 34 judges on the bench, 14 more than his predecessor, including the chief judges of the Supreme, Superior, Family and District courts. His selections of women as chief judges of the Family and District courts are a first in each case.

Federal Judge Denies Hotel’s Attempt to Stay Arbitration Order Pending Appeal

RI Lawyers Weekly profiles a recent case of mine involving the validity and arbitrability of a card check neutrality agreement signed between UNITE HERE Local 217 and the operator of the Renaissance Hotel, Sage Hospitality.

An order requiring a hotel to arbitrate a dispute with a union could not be stayed after the hotel filed an appeal, a U.S. District Court judge has ruled.

The hotel argued that a stay was necessary because its appeal could be rendered moot should the hotel be ordered to comply with the arbitration order.

But Judge William E. Smith disagreed.

“[W]hile the Hotel has articulated a plausible theory of irreparable harm, it has not persuaded the Court that the damage it foresees will actually come to pass,” the judge said.

The 20-page decision is UNITE HERE Local 217 v. Sage Hospitality Resources, Lawyers Weekly No. 52-030-10. The full text of the ruling can be found by clicking here.

Providence attorneys Amato A. DeLuca and Matthew A. Jerzyk represented the union. They were opposed by Providence attorney Moshe S. Berman and Maryland attorneys Louis J. Cannon Jr. and Norman R. Buchsbaum.

Defendant Hospital Ordered to Costs & Attorneys’ Fees after Improper Closing Argument

RI Lawyers Weekly has the update on a case (involving the firm where I work) that we profiled here last summer: Vann v. Women and Infants Hospital:

A hospital must pay the attorneys’ fees of a medical-malpractice plaintiff after defense counsel’s improper closing argument caused a mistrial, a Superior Court judge has ruled.

The plaintiff argued that a fee award was appropriate because the defendant’s comments about the plaintiff’s expert witness during the closing amounted to an attempt to present an “anything is possible” causation theory that the judge had already prohibited.

Presiding Judge Alice B. Gibney agreed.

“[T]his case presents unique and different circumstances from those involving mere improper statements during a closing argument,” Gibney said. “Accordingly, this Court equitably fashions a remedy that requires Defendant to reimburse Plaintiffs for attorneys’ fees and costs related to [the expert]’s appearance at the first trial.”

The 14-page decision is Vann v. Women and Infants Hospital, Lawyers Weekly No. 61-174-10. The full text of the ruling can be found by clicking here.

Providence attorneys Miriam Weizenbaum and Amato A. DeLuca represented the plaintiff. Michael G. Sarli of Providence represented the defendant.

Changes to Rule 56 of the Federal Rules of Civil Procedure

Here are amendments to the Federal Rules which became effective on December 1, 2010.

1. The amendments to Rule 8 delete the reference to “discharge in bankruptcy” from the rule’s list of affirmative defenses that must be asserted in response to a pleading.
2. The amendments to Rule 26 extend work-product protection to the discovery of draft reports by testifying expert witnesses and, with three important exceptions, to the discovery of communications between testifying expert witnesses and retaining counsel. The amendments also provide that a lawyer relying on a witness who will provide expert testimony but is not required to provide a Rule 26(a)(2)(B) report – because the witness is not retained or specially employed to provide expert testimony and is not an employee who regularly gives expert testimony – must disclose the subject matter of the witness’s testimony and summarize the facts and opinions that the witness is expected to offer.
3. The amendments to Rule 56 are intended to improve the procedures for presenting and deciding summary judgment motions, to make the procedures more consistent across the districts, and to close the gap that has developed between the rule text and actual practice. The amendments are not intended to change the summary judgment standard or burdens. The amendments include (1) requiring that a party asserting a fact that cannot be genuinely disputed provide a “pinpoint citation” to the record supporting its fact position; (2) recognizing that a party may submit an unsworn written declaration, certificate, verification, or statement under penalty of perjury in accordance with 28 U.S.C. § 1746 as a substitute for an affidavit to support or oppose a summary judgment motion; (3) setting out the court’s options when an assertion of fact has not been properly supported by the party or responded to by the other party, including considering the fact undisputed for purposes of the motion, granting summary judgment if supported by the motion and supporting materials, or affording the party an opportunity to amend the motion; (4) setting a time deadline, subject to variation by local rule or court order in a case, for the filing of a summary judgment motion; (5) explicitly recognizing that “partial summary judgment” may be entered; and (6) clarifying the procedure for challenging the admissibility of summary judgment evidence.

Incoming Attorney General Peter Kilmartin Supports “Secure Communities” Program

While incoming Governor Lincoln Chafee and incoming Providence Mayor Angel Taveras have been vocal about their opposition to policies that target immigrants, incoming Attorney General Peter Kilmartin is taking a different tack according to the Providence Journal:

Criminal suspects in Rhode Island would have their fingerprints automatically checked against an immigration database to determine if they’re in the country legally under a federal initiative that incoming attorney general Peter Kilmartin says he’ll enlist the state in after taking office.

The “Secure Communities” program, which the federal government hopes to roll out nationwide by 2013, has stoked debate about what role local police departments should have in federal immigration enforcement and about whether illegal immigrants accused of petty offenses are being flagged for deportation.

Supporters, including Kilmartin, say the initiative simplifies information sharing between local and federal law enforcement agencies, and is about identifying only those illegal immigrants accused of breaking the law. The government says the fingerprint program comes at no extra cost for communities.

Panel on Judicial Privilege and Free Speech

2010 UNIVERSITY SYMPOSIA SERIES

“JUDICIAL PRIVILEGE AND FREE SPEECH”

The Courts are a forum for speech. Lawyers advocate positions, witnesses testify, judges issue rulings, and all are protected in their courtroom communications. Judicial privilege protects any statement made in the course of and with reference to a judicial proceeding by judge, juror, party, witness, or advocate. Lawyers are able to fully and zealously advocate for a client’s position without concern for liability. Courtroom speech, besides zealous representation of a client’s interests, can also be used to advance a political agenda. Our panelists will consider when zealous representation becomes a political theater and whether or how the Courts should respond.

Date: Tuesday, November 9, 2010

Time: 7:00 to 9:00 p.m.

Location: Brown University Salomon Center for Teaching, Lower Level 91 Waterman Street Providence, Rhode Island 02903

Moderator:

• Ross Cheit, Professor of Political Science & Public Policy, Brown University

Panelists:

• Robert O’Neill, President Emeritus, University of Virginia; Director, Constitutional Law Center, University of Virginia School of Law; Interim General Counsel, AAUP.
• Wendy Murphy, Adjunct Professor, New England School of Law; Ex Prosecutor, Victims Rights Advocate

This is the latest event in the University Symposia Series, sponsored by the United States District Court for the District of Rhode Island, the Federal Bench/Bar Committee of the Rhode Island Bar Association, and Brown University.

Sen. Sheldon Whitehouse & Others to Address “The Politics and Process of Judicial Confirmations”

The Rhode Island Lawyer Chapter of the American Constitution Society and Common Cause Rhode Island present:

The Politics and Process of Judicial Confirmations

The political process of judicial nominations can be puzzling. In recent years, the confirmation process often has bogged down and become more contentious with the result that many judicial vacancies in federal courts have remained unfilled for lengthy periods of time. Our distinguished panel will attempt to demystify the process, giving an insiders’ perspective on nomination hearings, the political struggles behind them and the details of the process in general.

With an address by:

The Honorable Sheldon Whitehouse
Senator (D-RI), United States Senate

Featuring:

• The Honorable Ernest C. Torres, Senior Judge, U.S. District Court for the District of Rhode Island
• David Fontana, Associate Professor of Law, The George Washington University Law School
• Jared A. Goldstein, Professor of Law, Roger Williams University School of Law
• Emily J. Sack, Professor of Law, Roger Williams University School of Law

And moderated by:

• Michael J. Yelnosky, Professor of Law, Roger Williams University School of Law

Monday, November 8, 2010
Reception: 6:00 p.m.
Program: 6:30 p.m.
The University Club of Providence
219 Benefit Street
Waterman Room
Providence, RI
RSVP by CLICKING HERE.

This event is free of charge.

Hors d’oeuvres and beverages will be provided.

Please note that attire is business casual. Men are required to wear collared shirts, and no denim is allowed.

Governor Deval Patrick Makes Historic Nomination of Roderick Ireland as Chief Justice of Superme Judicial Court

This just in from the Boston Globe:

Governor Deval Patrick announced this morning that he is nominating veteran associate justice Roderick L. Ireland as chief justice of the Massachusetts Supreme Judicial Court, an appointment that would make Ireland the first black person ever to lead the venerable body.

“We are making history again,” Patrick said to applause at a State House news conference with Ireland that included some of Ireland’s oldest friends from his native Springfield.

Patrick lauded Ireland for his “wisdom and genuine concern for each and every litigant that comes before his court.”

“My nomination says that anything is possible,” said the 65-year-old Ireland, whose school guidance counselor decades ago suggested he become an auto mechanic. He had already made history as the first black associate justice on the court when he was appointed in 1997.

Chief Justice Margaret Marshall announced her retirement from the state’s highest court earlier this year, saying she wanted to spend more time with her husband, Anthony Lewis. The former New York Times columnist has been diagnosed with Parkinson’s disease.