Tuesday, August 21, 2007
Big Pharma and the Medicaid Advisory Panel
Minnesota is being recognized for a "groundbreaking" law that requires doctors and pharmacists serving on state advisory panels to fully disclose all financial ties to pharmaceutical companies. According to the article, medical ethicists are concerned with the potential influence pharmaceutical companies can have on the way millions of dollars in the state is spent. With $240 million dollars at stake in Minnesota's Medicaid system, is full disclosure enough to protect honest deliberations? Or should we prohibit doctors from serving on advisory panels that receive financial contributions from pharmaceutical companies?
Chinese Company Liable For Stealing Air Jordan Logo
Nike recently won a lawsuit against a Chinese shoemaker for copyright infringement. http://kstp.com/article/stories/S172468.shtml?cat=140 According to a local article, the Chinese company had been pirating the famous picture of Michael Jordan sailing through the air and dunking a basketball. While the sneaker giant was awarded a mere $41,500, it is an interesting story as intellectual property disputes transcend international boundaries. One wonders, however, whether the outcome would be the same if it was a lesser known U.S. Company which had little or no Chinese presence.
Suspiciously Timed Emergency Declaration
So, Minneapolis is now a federal emergency area.
This could be a lot more inspiring had the President declared it on his first visit to the bridge collapse site, several weeks ago.
Instead, the declaration had to wait until he was in town for a $1,000-a-plate fundraiser for Senator Norm Coleman's floundering re-election campaign.
Hmm... I wonder what the differences are with respect to campaign finance laws between a visit for a fundraiser and an official state visit with an incidental fundraiser attached...
This could be a lot more inspiring had the President declared it on his first visit to the bridge collapse site, several weeks ago.
Instead, the declaration had to wait until he was in town for a $1,000-a-plate fundraiser for Senator Norm Coleman's floundering re-election campaign.
Hmm... I wonder what the differences are with respect to campaign finance laws between a visit for a fundraiser and an official state visit with an incidental fundraiser attached...
Monday, August 20, 2007
Twins Stadium Cite Valued at $23.8 Million Dollars
In what will surely enliven debate concerning the appropriateness of spending tax dollars on stadium ventures, the 3 member condemnation panel charged with valuing the site where the new Twins stadium will be built valued the land at $23.8 million dollars. The Twins originally offered $17 million for the land. The sellers, however, claimed the land was worth more than $65 million. http://minnesota.publicradio.org/display/web/2007/08/20/ballpark/ Only two of the three appraisers voted and the non-voting member refused to give reason for abstaining. As the general public continues to disagree over whether it is appropriate for government to subsidize professional sports, there will likely be outcry for this additional $5.8 million dollars. Not to mention the amount of money that was flushed down the toilet in litigating the dispute.
Saturday, August 18, 2007
Family Pitbull Mauls Minnesota Boy - Criminal Neglect?
In the wake of the Michael Vick case, there has been significant debate surrounding the role of pitbulls in society. Stoking the debate in Minneapolis is the story of the Minneapolis boy that was mauled to death by his father's pitbull. The animal was tethered to a post in the basement and lunged at the boy's neck when the boy moved within striking distance. http://www.startribune.com/467/story/1369629.html. Following the attach, Minneapolis is debating a ban on "dangerous breeds" of dogs. This approach seems to place a Band-Aid on a cancerous tumor. Ignoring the problems of assigning a concrete definition to the term “dangerous breed” and devising a plan for policing the prohibition, the question remains whether a prohibition would accomplish its intended purpose. As the Michael Vick case demonstrates, there is an underground market and culture infatuated with breeding these animals. Its hard to accept that a prohibition would effect on this culture. Does anyone know whether the father of the mauled boy is facing criminal charges?
Friday, August 17, 2007
Federal Judge Prohibits Law Firm From Accessing 35W Bridge Collapse Site
Minnesota Federal District Judge Patrick Schiltz denied a Minneapolis based personal injury law firm access to the scene where the 35W bridge collapsed. According to reports, Judge Schiltz is requiring the firm to exhaust its administrative remedies by asking regulatory agencies for access before resorting to the Courts. An article on the subject may be viewed at http://www.startribune.com/10204/story/1365136.html. The court's ruling raises the potential that critical evidence regarding the cause of the collapse will be lost. This evidence is critical to people who have been injured by the collapse. Was the Court's ruling correct? Or, should the law firm have been granted access to the site?
Minnesota Supreme Court recognizes new medical malpractice claim
The Minnesota Supreme Court released an opinion on August 16, 2007 recognizing a medical malpractice claim based on “negligent credentialing.” The opinion may be viewed at http://www.courts.state.mn.us/opinions/sc/current/OPA051698-0816.htm. Under this theory, hospitals may be liable for negligently extending hospital privileges to licensed medical professionals. The practical implication of the court’s holding is that hospitals may not rely on licensure as prima facie evidence of qualification. While it is unclear what a hospital must do to meet the standard of care required in these cases, it is clear that litigation respecting the standard of care is forthcoming. This of course, raises thorny questions, such as who is in the best position to determine whether a particular doctor is qualified to undertake a particular medical task?
Sanctions, Sanctions, Sanctions
The Minnesota Rules of Civil Procedure provide for monetary sanctions where a party abuses the discovery process. Far too often, however, whether action (or most often inaction) constitutes abuse of the discovery process results in a quibble among the parties. With the caseload our Minnesota judges have, it is unsurprising that they are usually loath to resolve these quibbles among the parties. If the judge neither has the time nor inclination to dig into the substance of the discovery dispute, how can one capitalize on the sanctions provided for under the Minnesota Rules of Civil Procedure? There are many methods available, but the following list is an approach I have taken and been quite successful:
1. Avoid the scorched earth approach to discovery - Judges and attorneys see right through it. If you ask for everything under the sun, don't be surprised when the judge expresses discontent and releases a loud sigh. Remember, focus on the main issues, if those issues reveal tangential issues follow up with additional discovery.
2. Voice your discovery concerns immediately – Send correspondence to opposing counsel. This creates a written record of every conversation, email, agreement and concern. When the time comes for a motion to compel, you'll need a record to support whatever remedy you seek.
3. Be honest, reasonable and honor your discovery obligations - Judges hate nothing more than attorneys who complain that opposing counsel has not met discovery obligations all the while the complaining attorney has not honored hers. As for honesty and reasonableness, these considerations need not be explained.
4. The Motion to Compel - After you have gotten nowhere through correspondence, emails, telephone calls and other devices, schedule a motion to compel. Disclose the hearing date to opposing party as soon as it is scheduled. Remain willing to remove the hearing from the Court's motion calendar if opposing counsel answers the deficient discovery before your brief is filed. If discovery remains deficient proceed to the hearing. At the hearing explain why the omitted discovery is necessary for your claim or defense. In practice, whether or not it is technically discoverable has more to do with the academics of discovery than it has to do with practical discovery.
These tips should help you capture the discovery you need, and in some cases, recover the expense for your efforts.
1. Avoid the scorched earth approach to discovery - Judges and attorneys see right through it. If you ask for everything under the sun, don't be surprised when the judge expresses discontent and releases a loud sigh. Remember, focus on the main issues, if those issues reveal tangential issues follow up with additional discovery.
2. Voice your discovery concerns immediately – Send correspondence to opposing counsel. This creates a written record of every conversation, email, agreement and concern. When the time comes for a motion to compel, you'll need a record to support whatever remedy you seek.
3. Be honest, reasonable and honor your discovery obligations - Judges hate nothing more than attorneys who complain that opposing counsel has not met discovery obligations all the while the complaining attorney has not honored hers. As for honesty and reasonableness, these considerations need not be explained.
4. The Motion to Compel - After you have gotten nowhere through correspondence, emails, telephone calls and other devices, schedule a motion to compel. Disclose the hearing date to opposing party as soon as it is scheduled. Remain willing to remove the hearing from the Court's motion calendar if opposing counsel answers the deficient discovery before your brief is filed. If discovery remains deficient proceed to the hearing. At the hearing explain why the omitted discovery is necessary for your claim or defense. In practice, whether or not it is technically discoverable has more to do with the academics of discovery than it has to do with practical discovery.
These tips should help you capture the discovery you need, and in some cases, recover the expense for your efforts.
Tuesday, August 14, 2007
If I kill my wife can I collect her life insurance proceeds?
Minnesota’s slayer statute prohibits a murderer from benefiting from his crime. Thus, where a husband murders his wife he cannot collect her life insurance proceeds. The rule, however, is much easier to state than it is to apply.
For example, should the slayer statute be limited to murder in the first degree? Should it extend to manslaughter? What about negligent homicide? Assume a married couple is leaving a cocktail party together. The husband has had two martinis and assures his wife he is fine to drive. Three miles from their home he attempts to make a traffic light as it changes from green to yellow and eventually to red. Half-way through the intersection the passenger side door is slammed by a U.S. Postal Service mail truck. The wife dies. The husband is seriously injured. His blood alcohol content is .14 and he is charged with negligent homicide of his wife. Should the slayer statute prohibit him from collecting the $250,000 life insurance policy on his wife?
Assuming the answer is yes, the next question is how does the slayer statute operate?
Minnesota’s slayer statute is codified in Minn. Stat. § 524.2-803. It parrots the Uniform Probate Code and provides:
A final judgment of conviction of felonious and intentional killing is conclusive for purposes of this section. In the absence of a conviction of felonious and intentional killing the court may determine by a preponderance of evidence whether the killing was felonious and intentional for purposes of this section.
Minn. Stat. § 524,803(f). In practice, most parties wait for the criminal aspect of the case to be decided before addressing the civil side. Thus, the question becomes what is a “final judgment?”
Most people are surprised to learn that the judgment is not final until the appeals process runs its course. In practice, this takes many years. With the availability of federal habeas corpus relief, the potential for delaying the finality of the conviction through eternity is theoretically possible.
Fortunately, Minnesota courts have, to an extent, drawn a line in the sand. In Thompson v. Gray, 533 N.W.2d 57 (Minn. Ct. App. 1995) the Minnesota Court of Appeals held, “a judgment becomes final when the appellate process is terminated or the time to appeal has expired.” Id. at 60. The court’s holding raises more questions than it answers. For example, when has the appellate process terminated? When has the time to appeal expired? For the purpose of the slayer statute, does the appellate process include a habeas corpus petition, which may be brought at any time?
A Minnesota District Court recently addressed these issues in Mutual Service Life Insurance Company v. Estate of Colleen Cram et. al., Court File No. C#-02-9957. In that case, Ronald Cram had been convicted of murdering his wife Colleen Cram. Ronald was the designated beneficiary of Colleen’s life insurance policy. After he was charged and convicted for murder, litigation ensued to probate the Estate and determine the proper beneficiary of the life insurance policy. Cram successfully stayed the probate and life insurance proceeding on the grounds that his appellate process had not terminated and the time to appeal had not expired. Cram appealed his conviction in state court and pursued post-conviction relief. State v. Cram, 718 N.W.2d 898, 901 (Minn. 2006). The district court affirmed his conviction and the Minnesota Supreme Court followed suit.
After the high court ruled, the Estate attempted to finalize the probate. Cram argued his conviction was not final because he intended to, and in fact filed, a federal habeas corpus petition. The district court rejected the notion that a federal habeas corpus petition affected the finality of Cram’s judgment. Relying on Nelson v. Hvass, 280 F.3d 782, 873 (8th Cir. 2002), the court reasoned that for purposes of Minn. Stat. § 524.2-803, a judgment becomes final when the Minnesota Supreme Court either rules on the direct appeal/post-conviction proceedings or the time period for appealing to the Minnesota Supreme Court expires. Thus, the court held that Cram’s conviction became final on August 3, 2006, the day the Minnesota Supreme Court affirmed his conviction.
The district court’s conclusion is correct. A federal habeas corpus petition is not an appeal. It is a separate action in a separate judicial forum. It has little to do with the merits of the case, focusing instead on constitutional criminal procedure. While a federal habeas corpus petition carries the possibility of securing the defendant a new trial, it does not carry the possibility of reversing the state court judgment. Thus, it has little effect on whether the first judgment is final. From a practical standpoint, the district court’s decision was correct as it limits what would otherwise be unlimited litigation.
For example, should the slayer statute be limited to murder in the first degree? Should it extend to manslaughter? What about negligent homicide? Assume a married couple is leaving a cocktail party together. The husband has had two martinis and assures his wife he is fine to drive. Three miles from their home he attempts to make a traffic light as it changes from green to yellow and eventually to red. Half-way through the intersection the passenger side door is slammed by a U.S. Postal Service mail truck. The wife dies. The husband is seriously injured. His blood alcohol content is .14 and he is charged with negligent homicide of his wife. Should the slayer statute prohibit him from collecting the $250,000 life insurance policy on his wife?
Assuming the answer is yes, the next question is how does the slayer statute operate?
Minnesota’s slayer statute is codified in Minn. Stat. § 524.2-803. It parrots the Uniform Probate Code and provides:
A final judgment of conviction of felonious and intentional killing is conclusive for purposes of this section. In the absence of a conviction of felonious and intentional killing the court may determine by a preponderance of evidence whether the killing was felonious and intentional for purposes of this section.
Minn. Stat. § 524,803(f). In practice, most parties wait for the criminal aspect of the case to be decided before addressing the civil side. Thus, the question becomes what is a “final judgment?”
Most people are surprised to learn that the judgment is not final until the appeals process runs its course. In practice, this takes many years. With the availability of federal habeas corpus relief, the potential for delaying the finality of the conviction through eternity is theoretically possible.
Fortunately, Minnesota courts have, to an extent, drawn a line in the sand. In Thompson v. Gray, 533 N.W.2d 57 (Minn. Ct. App. 1995) the Minnesota Court of Appeals held, “a judgment becomes final when the appellate process is terminated or the time to appeal has expired.” Id. at 60. The court’s holding raises more questions than it answers. For example, when has the appellate process terminated? When has the time to appeal expired? For the purpose of the slayer statute, does the appellate process include a habeas corpus petition, which may be brought at any time?
A Minnesota District Court recently addressed these issues in Mutual Service Life Insurance Company v. Estate of Colleen Cram et. al., Court File No. C#-02-9957. In that case, Ronald Cram had been convicted of murdering his wife Colleen Cram. Ronald was the designated beneficiary of Colleen’s life insurance policy. After he was charged and convicted for murder, litigation ensued to probate the Estate and determine the proper beneficiary of the life insurance policy. Cram successfully stayed the probate and life insurance proceeding on the grounds that his appellate process had not terminated and the time to appeal had not expired. Cram appealed his conviction in state court and pursued post-conviction relief. State v. Cram, 718 N.W.2d 898, 901 (Minn. 2006). The district court affirmed his conviction and the Minnesota Supreme Court followed suit.
After the high court ruled, the Estate attempted to finalize the probate. Cram argued his conviction was not final because he intended to, and in fact filed, a federal habeas corpus petition. The district court rejected the notion that a federal habeas corpus petition affected the finality of Cram’s judgment. Relying on Nelson v. Hvass, 280 F.3d 782, 873 (8th Cir. 2002), the court reasoned that for purposes of Minn. Stat. § 524.2-803, a judgment becomes final when the Minnesota Supreme Court either rules on the direct appeal/post-conviction proceedings or the time period for appealing to the Minnesota Supreme Court expires. Thus, the court held that Cram’s conviction became final on August 3, 2006, the day the Minnesota Supreme Court affirmed his conviction.
The district court’s conclusion is correct. A federal habeas corpus petition is not an appeal. It is a separate action in a separate judicial forum. It has little to do with the merits of the case, focusing instead on constitutional criminal procedure. While a federal habeas corpus petition carries the possibility of securing the defendant a new trial, it does not carry the possibility of reversing the state court judgment. Thus, it has little effect on whether the first judgment is final. From a practical standpoint, the district court’s decision was correct as it limits what would otherwise be unlimited litigation.
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