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Bar News - July 17, 2009

US District Court Decision Listing - May 2009

* Published

Jody Burtsell v. Nicholas Toumpas, Commissioner, New Hampshire Department of Health and Human Services
Case No. 08-cv-455-JL, Opinion No. 2009 DNH 69

The plaintiff brought this action for declaratory and injunctive relief asserting that the defendant failed to comply with federal and state Medicaid laws by refusing to compromise its rights to the proceeds of a tort settlement between the plaintiff and a third party. The defendant moved to dismiss, alleging that the court lacked subject matter jurisdiction. The court denied the motion, concluding that the plaintiffís complaint presents a federal question, namely, whether the defendant is attempting to exceed its authority granted under the federal Medicaid scheme. Further, the court concluded that it has supplemental jurisdiction to determine the equitable apportionment of the tort settlement. 11 pages. Judge Joseph N. Laplante.

United States v. Tammy Fowler
Case No. 09-cr-047-JL, Opinion No. 2009 DNH 071*

The defendant, charged with aiding and abetting an unarmed bank robbery, moved in limine to preclude the United States from cross-examining her at trial about certain prior convictions. Concluding that a 2004 conviction in Florida necessarily included an element of dishonesty or false statement, the court ruled that impeachment using this conviction was permissible under Fed. R. Evid. 609(a)(2). The United States conceded the inadmissibility of the other convictions at issue. The defendantís remaining motions in limine ó one concerning the admissibility of prior bad act evidence, the other relating to the admissibility of a statement made by the principal actor in the underlying offense ó were granted without prejudice to the possible admissibility of the evidence at trial. 9 pages. Judge Joseph N. Laplante.


United States v. Rawnsley and Reynolds
Case No. 08-cr-85-1-2-SM, Opinion No. 2009 DNH 063

Defendants moved to suppress evidence obtained during an investigative stop (a/k/a "Terry stop") and an ensuing pat-down/search for weapons. A firearm was seized from each defendant and defendant Rawnsley subsequently made incriminatory statements during two custodial interrogations. Following an evidentiary hearing, the court held that: (1) the officersí initial investigative stop of defendants was legally sound; (2) the pat-down of Reynolds (to determine whether he was armed) was not justified; (3) the subsequent frisk of Rawnsley (after a weapon was found on Reynolds) was justified; and (4) the challenged incriminatory statements made by Rawnsley were voluntary, following a knowing, intelligent, and voluntary waiver of his Miranda rights. 23 pages. Chief Judge Steven J. McAuliffe.


Deborah C. Aumand and Francis Coffey v. Dartmouth Hitchcock Medical Center
Case No. 06-cv-434-JL, Opinion No. 2009 DNH 061*

The parties to a medical malpractice case filed motions in limine raising a number of issues to be resolved in advance of the upcoming jury trial. In resolving the motions, the court ruled, among other things, that (1) a conclusion contained in a report by one of the decedentís treating physicians was admissible as "trustworthy" under Rule 803(6), even if the conclusion did not amount to admissible expert testimony under Rule 702, (2) the defendant could not cross-examine one of the plaintiffsí witnesses about a document without first producing it, because the document, while obtained through defense counselís own efforts, was not prepared by him and was therefore not work product under Rule 26(b)(3)(A), (3) the defendantís failure to designate certain of the decedentís treating physicians as expert witnesses under Rule 26(a)(2)(A) prohibited the defendant from offering at trial their diagnoses, prognoses, conclusions, or other expert testimony covered by Rule 702, (4) New Hampshireís collateral source rule prohibited the court from equating the decedentís medical expenses with the amount paid by Medicare and private insurance rather than the amount billed and, by incorporation through Rule 403, also prohibited the defendant from introducing evidence of the amount paid, (5) a family member could testify to a statement made to him by someone who appeared to work for the defendant hospital as an admission by its agent under Rule 801(d)(2)(D), even if the employee could not be specifically identified, and (6) a statement by another employee to the decedentís widower was not admissible to support his loss of consortium claim, because that theory allows recovery for emotional distress caused by the loss of consortium only, not by other conduct of the defendant. 39 pages. Judge Joseph N. Laplante.


Scott Abram v. Warden, NH State Prison
Case No. 07-cv-272-JL, Opinion No. 2009 DNH 070

Relying on White v. Coplan, 399 F.3d 18, 27 (1st Cir. 2005), the petitioner sought habeas relief under the Sixth Amendment from the New Hampshire Supreme Courtís decision affirming the superior courtís ruling, barring cross-examination of minor victims about their accusations involving uncharged sexual abuse of their brothers. Taken as a whole, the New Hampshire Supreme Courtís decision was neither contrary to nor an unreasonable application of federal law under U.S. Supreme Court precedent, as interpreted by White. Petition denied. 3 pages. Judge Joseph N. Laplante.

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