Tag Archives: RI Federal Court

Judge William Smith is new Chief Judge of the United States District Court for the District of Rhode Island

The US District Court for the District of Rhode Island announced this week that, effective December 1, 2013, Judge William E. Smith assumes the position of Chief Judge of the United States District Court for the District of Rhode Island.

Chief Judge Smith succeeds Judge Mary M. Lisi, who served as Chief Judge from December 1, 2006 through November 30, 2013. By statute, the chief judge is the most senior active district judge who is under 65 years of age and who has not previously served as chief judge. The term of service is seven (7) years. Judge Lisi will remain in active service on the Court.

The chief judge has a leadership role in court management and exercises authority and responsibility to act and speak on behalf of the other district judges in a wide range of management and operational matters.

The Rhode Island Chapter of the Federal Bar Association is hosting a reception to honor the dedication and service of Judge Lisi as she completes her tenure and to congratulate Judge Smith as he begins his term as Chief Judge on Friday, December 13, 2013 from 4:00pm to 6:00pm in the Maxwell Mays gallery of the Providence Art Club. If you are interested in attending, please RSVP to Treasurer Andrew Richardson, Esq. at Andy@bhrlaw.com

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.

Anti-Marriage Equality Forces Sue to Overturn RI Campaign Finance Laws

Scott MacKay has the scoop on anti-marriage equality forces attempting to dismantle RI’s campaign finance laws:

Now comes the National Organization for Marriage, the anti-gay marriage group, which has gone to federal court to throw out Rhode Island’s campaign finance disclosure laws. This would give them the right to spend thousands, or hundreds of thousands of dollars, to influence our elections and the General Assembly without saying where this money comes from.

This group asserts that its First Amendment Free Speech rights are curbed by the requirement that it disclose its contributors. The lawyer for the anti-gay marriage group is James Bopp, a member of the Republican National Committee. He has sued other states to get rid of campaign finance laws in the aftermath of the U.S. Supreme Court’s decision in the Citizens United case which ruled that unlimited amounts of corporate money can be spent to influence elections.

Now Bopp and some of the groups he represents are on a crusade against state campaign finance laws. In his argument against our laws, Bopp asserts that Rhode Island just wants to “run everybody through the wringer’’ of complicated campaign disclosure laws to drive some groups away from participation in politics. (Bopp, a member of the Republican National Committee is the lawyer hired by Governor Carcieri in 2007 to file a friend-of-the-court brief with the Rhode Island Supreme Court supporting the governor’s position against gay marriage in a divorce case involving a lsbian couple married in Massachusetts.)

Station Fire Evidence on track to be Destroyed

The Providence Journal reports that Senior U.S. District Court Judge Ronald R. Lagueux has approved the destruction of more than 700 pieces of evidence recovered from the site of the Station nightclub fire and the closure of the Cranston warehouse where all of the items have been stored for the past seven years.

No decision has yet been made as to where, when or how the evidence will be destroyed or what the cost will be. But the costs of the destruction will be borne 50/50 by the victims of the fire and the defendants who contributed to a $176-million settlement of the personal-injury cases filed in the wake of the catastrophic blaze. One hundred people died as a result of the Feb. 20, 2003, fire on Cowesett Avenue in West Warwick, and more than 200 were injured. It was the fourth-deadliest nightclub fire in U.S. history.

Some of the fire victims have expressed a desire to tour the warehouse at 225 Macklin St. before the evidence is removed from the site, but it is unclear whether they will be allowed to do so.

In approving the closure of the evidence warehouse, Senior U.S. District Court Judge Ronald R. Lagueux said in a written order that he would maintain jurisdiction over the repository “until such time as it is fully closed and the evidence destroyed, and all costs are paid by all parties responsible for the maintenance of the warehouse.” The site has cost $2,500 per month to rent. The plaintiffs and defendants have equally split that expense. The victims’ share has been subtracted from their settlement checks.

$1.5 Million Verdict in Kugel Mesh Lawsuit

RI Lawyers Weekly reports that a U.S. District Court jury has awarded $1.5 million to a married couple for injuries they suffered as a result of a hernia repair patch.

Christopher and Laure Thorpe were awarded $1.3 million for personal injury damages and $200,000 for loss of consortium.

The case, Thorpe v. Davol, Inc. et al., was the second case to go to trial out of thousands of cases filed against Davol Inc., the manufacturer of the Composix Kugel Mesh hernia patch, and its parent company, C.R. Bard.

The verdict came after an earlier case in which the jury found the same defendants negligent in the design of the hernia patch.

The plaintiffs argued before Chief Judge Mary M. Lisi that Christopher Thorpe suffered severe internal injuries caused by a broken plastic ring on the hernia repair mesh. He required multiple surgeries as a result of his injuries.

The jury found that the defendants acted unreasonably in designing the patch and were negligent in failing to provide adequate warning or instruction for the product. The jury also found that the defendants’ negligence proximately caused Laure Thorpe’s physical and emotional suffering due to the loss of consortium of her husband.

The plaintiffs were represented in the case by lead counsel Donald A. Migliori of Motley Rice in Providence and co-counsel Ernie Cory of Birmingham, Ala.-based Cory, Watson, Crowder & DeGaris.

You can learn more about the Kugel Mesh lawsuit by clicking here.

Federal Lawsuit Seeks to End Master Party Lever in Rhode Island

The Providence Journal is reporting that Bob Healey, an independent candidate for lieutenant governor, filed a lawsuit in U.S. District Court Wednesday seeking to abolish the straight-party voting option on Rhode Island’s ballot for November and all subsequent elections.

Healey is one of 11 plaintiffs in the lawsuit, which names Governor Carcieri, A. Ralph Mollis, secretary of state, members of the state’s Board of Elections and the heads of the state’s Republican, Democratic and Moderate parties as defendants. Among the plaintiffs is Republican Warwick Mayor Scott Avedesian.

U.S. District Judge William E. Smith has set a hearing for Aug. 5 at 9 a.m.

The plaintiffs are alleging that Rhode Island’s continued use of the straight-party ticket option that records votes by optic scanning is unconstitutional and should be eliminated. “The use of the party lever in conjunction with optic scanning technology has created several discernable and distorted voting patterns,” the lawsuit alleges. “Using the optic scan ballot, no marks are visible as to the vote cast in each race. As a result, communities that hold nonpartisan elections demonstrate a marked decline in civic participation, showing that voters often fail to cast votes in nonpartisan municipal contests, mistakenly believing that the party lever has triggered votes in all races.”

RI Federal Courthouse Update

This announcement comes from David A. DiMarzio, Clerk of Court in the U.S. District Court for the District of Rhode Island:

…I am pleased to inform you of the recent installation of a multi-functional machine (fax, copier, and scanner) in the Attorney Lounge, which is located on the 5th Floor of the Courthouse.  As you may know, wireless internet service is already provided to you in that space, and we hope that you find this machine to be a convenient and useful addition.  If you haven’t been to the Attorney Lounge recently, I recommend that you visit it the next time you’re in the Courthouse to see what this space has to offer to you.

Also, be advised that there is a Roof Replacement Project underway at the Courthouse that may necessitate the changing of courtroom locations on short notice due to noise.  Advance notice of such changes may not be possible, but notices will be posted at the Courthouse.  You are encouraged to arrive a few minutes earlier than normal for any courtroom proceedings.  This project is expected to be completed in October, 2010.  We apologize for any inconvenience this may cause.

Judge: Ng Case May Move Forward

Rhode Island federal court Judge William E. Smith last week denied a motion to dismiss filed by the defendant United States of America in the case involving the tragic death of a detainee, Hiu Liu “Jason” Ng.

This case involves allegations of mistreatment and neglect of a federal immigration detainee, Hiu Liu Ng (“Jason”). Jason died of cancer, which was not diagnosed until just prior to his death. In the motion before the Court, the United States of America (“Defendant” or “United States”) moves to dismiss the Second Amended Complaint filed by Plaintiff Lin Li Qu (“Michelle” or “Plaintiff”) for claims arising out of her husband’s care while he was detained by Immigration and Customs Enforcement (“ICE”). The United States contends that the Court lacks subject matter jurisdiction to hear Plaintiff’s claims under the Federal Tort Claims Act, 28 U.S.C. § 2674, (“FTCA”) because Plaintiff did not comply with the required administrative notice provisions and Defendant did not waive its sovereign immunity with respect to the alleged wrongful conduct committed by its independent contractors. Defendant also argues that Plaintiff’s negligence claim fails to state a claim upon which relief can be granted. See Fed. R. Civ. Pro. 12(b)(6).

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RI Federal Court: 2 Lead Poisoned Children equal only 1 occurence for Insurance Purposes

RI Lawyers Weekly reports that U.S. District Court Chief Judge Mary Lisi recently decided that two children exposed to lead paint could not each receive the $100,000 limit of their landlords’ insurance policy.

The children’s parents had argued that the poisoning of each child constituted a separate “occurrence” triggering coverage under the policy.

But Judge Mary M. Lisi disagreed, finding that the harm suffered by the children was the result of a single occurrence.

“Although the children may have ingested the lead at different times and their blood tests showed different levels of exposure, the injuries all flowed from the same conditions in their immediate environment,” Lisi wrote.

You can read the opinion here.

New Appointments to the RI Board of Bar Admissions

U.S. District Court Chief Judge of the District of Rhode Island Mary M. Lisi recently announced that, effective June 1, 2010, the Court has appointed Attorneys Jeffrey C. Schreck, Anthony M. Traini, and Karen A. Pelczarski to serve 3-year terms on the Board of Bar Admissions.

Attorney Patricia K. Rocha has been appointed as Chair of the Board. Attorney Rocha is serving in her second term, and prior to accepting the position of Chair, she served as the civil procedure expert. Attorney Rocha is the first woman in the history of the Board to be appointed as Chair.

The Board of Bar Admissions oversees the Court’s Attorney Admissions Program and administers a mandatory course of instruction on federal practice with a focus on local practices and procedures.  Members of the Board serve an initial 3-year term, and they are then eligible to be reappointed for a second term. Each member is assigned a specific area of practice in which the Court considers them to be
an expert.

The current members of the Board of Bar Admissions and their subject areas are:

  • Patricia K. Rocha Chair
  • William M. Dolan Jurisdiction
  • Matthew J. McGowan Bankruptcy
  • Karen A. Pelczarski Civil Procedure
  • William A. Poore Professional Conduct
  • Jeffrey C. Schreck Local Rules
  • Anthony M. Traini Criminal Procedure

According to Chief Judge Lisi, “The Board plays a critical role in preparing attorneys for practice before this Court. The contribution of time and knowledge that each member makes to the admissions process is invaluable, both to the Court and to the bar applicants. Because of the voluntary services that these individuals provide, new attorneys are well prepared to appear in our courtrooms. These individuals should be commended for their outstanding contribution to the practice of law and to the administration of justice.”

Interesting Legal Twist Results in $1.3 Million Settlement in Jason Swift Police Brutality Case Against City of Pawtucket

Rhode Island Lawyer’s Weekly has a great story on a recent $1.3 million police brutality settlement involving the City of Pawtucket stemming from the 2008 shooting of a 30 year old Pawtucket man – Jason M. Swift – who had suffered a nervous breakdown and was shot and killed as the police followed him upstairs into his room.

Two months ago, on the eve of trial, the City of Pawtucket settled with the mother of Swift’s 3-year-old son after U.S. District Court Judge William E. Smith denied Pawtucket’s motion for summary judgment and ordered most of the plaintiffs’ claims against the city and several of its police officers to go to trial.

According to lawyers for the plaintiffs, that ruling was not only key to the parties’ decision to settle, it contains tough lessons for attorneys involved in high-stakes civil litigation. Reporter Julia Reischel talked to Providence attorney Stephen P. Sheehan — who, along with Max H. Wistow, represented the plaintiffs — about how the ruling will affect future police brutality cases in Rhode Island.

Q. How big is this settlement compared to others in Rhode Island?

A. This is certainly the largest settlement I’m aware of in a case involving police brutality, and I’ve been practicing in Rhode Island for 20 years.

Q. Why did Judge Smith keep the opinion under seal until after the settlement, when the case itself wasn’t under seal?

A. The judge’s opinion was issued at a time when questionnaires had already been sent out to over 100 prospective jurors identifying the case and asking detailed questions in order to determine whether or not they had bias. In consequence, the prospective jurors were in the position of likely reading about the opinion in the newspaper that they then were going to be asked not to read anything about. The decision [to seal the opinion] was on the judge’s own initiative — not a motion from either party — to preserve the jury from taint pending juror selection.

Q. Is that unusual?

A. It’s very unusual and, one could argue, I suppose, whether it should happen or not. It was a temporary order by the court. The court contemplated that the opinion would be released at some point, but after a time when the jury pool would have at least been instructed not to read the paper. I think it’s very unusual that summary judgment in an opinion like this is issued at a time that a jury is being empanelled. Usually, opinions are issued before then. What happened here is that there was a very extensive briefing on the motion for summary judgment that delayed the final submission of the motion to the judge, [so that] two deadlines overlapped.

Q. What is the most notable legal issue in the opinion?

A. This case illustrates the danger of answering an allegation in a complaint without admitting or denying it. The complaint asked the city to admit or deny that the officers were in compliance with the city’s policies, [and the city] dodged having to make a decision on the issue by not answering that allegation. The laws say that if you just say, “I refuse to admit or deny,” then that statement will be treated as an admission. Lawyers answering complaints often do precisely what the defendants did here, but it’s rare that it has such a dramatic consequence as it did here.

In this case, it resulted in the denial of the motion for summary judgment by the city, and at trial it would have foreclosed the city from introducing evidence that [the police officers were] not acting in accordance with its policies, even if the jury found that one of the police officers basically executed Jason Swift.

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Providence Attorney Files Class Action Lawsuit Versus Facebook

Derrick Rose of East Providence, Rhode Island announced last week that he filed a class action lawsuit against Facebook over privacy concerns relating to Facebook’s “Instant Personalization,” a social network tool that allows third party websites to access users’ personal information when users visit on third party websites.

Click here to see the complaint – Rose v. Facebook, Inc.  CA 10-232S

The lawsuit, filed in the U.S. District Court for the District of Rhode Island, alleges that Facebook’s “Instant Personalization” feature has violated users’ privacy rights and seeks to certify a national class of Facebook users.

“The activation of Instant Personalization and the sharing of information about users with unrelated third party websites violated users reasonable expectations of privacy ”, the lawsuit claims.

“Social networking sites like Facebook are continuing to put profits over privacy and users are demanding control over the use of their personal information on the internet”, said Attorney Peter N. Wasylyk, Mr. Rose’s attorney.

New Websites for RI Federal Court & Probation Office

Both the U.S. District Court for the District of Rhode Island and the U.S. Probation Office for the District of Rhode Island unveiled new websites today:

Federal Jury Finds Davol Hernia Patch Negligently Designed

The Providence Journal reports that while Davol has prevailed in its first 1st hernia patch suit it may well be on its way to losing the larger war in U.S. District Court.

A U.S. District Court jury found that a hernia repair patch manufactured and marketed by a Cranston company did not cause the injuries suffered by a Missouri man, the first verdict in thousands of lawsuits concerning the patches.

John Whitfield sued Cranston-based Davol Inc. and its parent company, C.R. Bard Inc., after he said that “memory recoil rings” in the Composix Kugel Mesh patch a doctor used to repair his abdominal hernia in 2003 broke, obstructing his bowel and forcing 22 cm of his intestine to be removed.

The jury found that while the patch was negligently designed, it could not be blamed for Whitfield’s injuries.

(…)

Though Whitfield technically lost the case, the verdict will help the remaining cases as they work their way through the courts, said lawyer Donald Migliori, lead counsel for the plaintiffs. That’s because while the jury found that the company did not defectively design the patch, it did agree that the company was negligent in the design of the patch.

“It’s a very important ruling for all 3,000 cases,” Migliori said. “It means the patch is a negligently designed patch, and shouldn’t be and should not have been on the market.”

Migliori said he plans to file a motion by June 9 that would allow the decision in Whitfield’s case to be applied to the remaining cases concerning the patches. If the court approves the motion, Migliori said, that means future cases would have to prove only that the patch caused people’s injuries, not that the patch’s design was faulty as well.

The next case in federal court is that of Christopher Thorpe of North Carolina, Migliori said. In that case, Thorpe’s patch had two plastic rings that Migliori said broke and caused internal injuries. Jury selection in that case begins on June 9, with evidence beginning on June 15.

Brown University Named in Lawsuit Over Rape Accusation

Via the New York Times, Brown University has been named in a lawsuit claiming that school officials blocked a former male student from clearing his name when a female student accused him of rape.

According to the lawsuit, in 2006, a female student reported to her resident coordinator that William McCormick III was “following her” around at school. Brown officials pressed the student, the daughter of an alumni donor, to add McCormick’s name to an official complaint and that he raped her, the suit claims. McCormick was then expelled from school, but neither the girl nor school officials reported the crime to campus or local police.

McCormick claims he was denied a copy of the girl’s complaint and was refused a chance to tell his side of the story.

At a hearing on Monday, Judge William E. Smith of Federal District Court in Providence, R.I., questioned why Brown never reported the alleged attack to the police. “The thought that with all the people involved in this matter at different levels, a determination is made to not tell law enforcement, even the Brown Police Department — I’m having trouble getting that,” Judge Smith said, according to The Associated Press. He also characterized the lawsuit as “a mess” and told Mr. McCormick’s lawyer, J. Scott Kilpatrick, that some of the assertions appeared to be unsubstantiated.