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Bar News - December 18, 2009


US District Court Decision Listing - November 2009

* Published

CIVIL RIGHTS

11/9/09
O’Mara v. Dionne, et al.
Case No. 08-cv-51-SM, Opinion No. 2009 DNH 172

Summary judgment was granted to the defendants on the plaintiff’s conditions-of-confinement claim because his prison medical records demonstrated that he never sought treatment for the stomach problems he claimed to have suffered as a result of eating from allegedly contaminated food trays. Summary judgment was also granted to the defendants on the plaintiff’s claim that he was denied due process in connection with a classification decision, because the undisputed record demonstrated that he received all the process he was due. 7 pages. Chief Judge Steven J. McAuliffe.


CIVIL RIGHTS § 1983: PRISONER
11/9/09
Graham v. Curry, et al.
Case No. 07-cv-247-PB, Opinion No. 2009 DNH 167

Melvin Graham sued to challenge prison treatment that allegedly violated his Fourth and Eighth Amendment rights. He also asserted a state law claim of intentional infliction of emotional distress. The defendants moved for summary judgment on all counts. Graham alleged that one visual body cavity search violated his Fourth Amendment rights because (1) he was searched within view of a surveillance camera that may have been monitored by female officers and (2) he was searched within full view of other inmates. The court dismissed this claim because (1) Graham provided insufficient evidence that female officers were in fact monitoring the area where he was searched and (2) the officer conducting the search was entitled to qualified immunity even if he searched Graham in full view of other inmates because a reasonable corrections officer would not have clearly understood that such a search was unlawful. The court dismissed Graham’s Eighth Amendment claim, which was based on a second visual body cavity search, because Graham did not provide sufficient evidence that the search itself was maliciously instigated or that his Eighth Amendment rights were violated during his walk to or confinement in a holding cell after the search. Finally, the court dismissed the claim of intentional infliction of emotion distress because Graham’s evidence did not establish that the defendants’ conduct was outrageous or that the defendants intentionally caused severe emotional distress. 19 pages. Judge Paul Barbadoro.


DISCOVERY
11/2/09
Karen and Gregory Bartlett v. Mutual Pharmaceutical Company, Inc., et al.
Case No. 08-cv-358-JL, Opinion No. 2009 DNH 166

The plaintiffs moved for discovery sanctions in response to the defendant Mutual Pharmaceutical Company’s belated production of certain FDA filings in a prescription drug failure-to-warn case. The court granted the motion, ruling that the defendant lacked a substantial justification for failing to produce the documents in a timely manner. Because the defendant acted in good faith, however, the court allowed only some of the relief that the plaintiffs requested, including expanded discovery and reimbursement of attorneys’ fees. 20 pages. Judge Joseph N. Laplante.


EMPLOYMENT (ERISA)
11/25/09
Polley v. Harvard Pilgrim Health Care, Inc.
Case No. 08-cv-392-SM, Opinion No. 2009 DNH 176

Summary judgment was granted to the defendant, which produced undisputed evidence that it paid short-term disability benefits out of its general assets, thus making its short-term disability plan a "payroll practice" rather than an ERISA-governed employee welfare benefit plan. 13 pages. Chief Judge Steven J. McAuliffe.


ERISA
11/30/09
Geaghan v. Prudential Insurance Co. of America
Case No. 09-cv-308-JL, Opinion No. 2009 DNH 178

The defendant moved to dismiss the plaintiff’s claims for emotional distress damages and attorney’s fees allegedly caused by the defendant’s improper processing of her claim for short-term disability benefits. The court granted the motion, ruling that the plaintiff’s claims related to an employee benefits plan covered by the Employee Retirement Income Security Act (ERISA) and thus were expressly pre-empted to the extent that they arose under state law. The court also ruled that, even if construed as arising under ERISA, the claims failed on the merits because ERISA does not allow recovery for emotional distress damages or pre-litigation attorney’s fees. 11 pages. Judge Joseph N. Laplante.


HABEAS CORPUS
11/30/09
Contino v. Hillsborough County House of Corrections
Case No. 09-cv-62-SM, Opinion No. 2009 DNH 180

Summary judgment was granted to the respondent, on grounds of procedural default, because the habeas corpus petitioner failed to exhaust his state-court remedies, and the time for appealing the state-court decision underlying his petition had expired. 10 pages. Chief Judge Steven J. McAuliffe.


INJUNCTIONS
11/25/09
ANSYS, Inc. v. Computational Dynamics, et al.
Case No. 09-cv-284-SM, Opinion No. 2009 DNH 177

Defendant’s former employer sought preliminary injunction enforcing the terms of a covenant not to compete, thereby preventing defendant from working for plaintiff’s largest competitor, both sophisticated and specialized software producer. The court denied that motion, concluding that even assuming the covenant’s geographic scope (worldwide) and temporal limitation (one year) were reasonable, plaintiff failed to demonstrate that a reasonable possibility that defendant would disclose confidential and/or trade secret information to his new employer (the confidential information was also not shown to be beneficial or useful to the new employer, whose competing software was based upon entirely different architecture). 17 pages. Chief Judge Steven J. McAuliffe.


JURISDICTION (PERSONAL)
11/9/09
D’Jamoos v. Atlas Aircraft Center, Inc., et al.
Case No. 08-cv-108-SM, Opinion No. 2009 DNH 170

Foreign aircraft manufacturer moved to dismiss this negligence and product liability action for lack of personal jurisdiction. The court denied that motion, concluding that, as to plaintiffs’ first cause of action, it had specific personal jurisdiction over defendant and, as to plaintiffs’ second cause of action, it could properly exercise pendent personal jurisdiction. 24 pages. Chief Judge Steven J. McAuliffe.


11/30/09
Levesque v. Fletcher Allen Health Care, et al.
Case No. 09-cv-055-SM, Opinion No. 2009 DNH 179

The defendants’ motions to dismiss for lack of personal jurisdiction were granted, where all defendants were Vermont health-care providers, or employees thereof, and had no contacts with New Hampshire. 10 pages. Chief Judge Steven J. McAuliffe.


MAGISTRATE’S ORDERS (APPEALS FROM)
11/9/09
Flagstar Bank, FSB v. FREESTAR Bank, N.A.
Case No. 09-cv-225-SM, Opinion No. 2009 DNH 168

The magistrate judge’s order, denying a motion to quash a subpoena was affirmed, on grounds that the four documents at issue were not subject to attorney-client privilege. 15 pages. Chief Judge Steven J. McAuliffe.


MEDICAL MALPRACTICE
11/09/09
Mary Jane Wilkins, et. al. v. Alice Peck Day Memorial Hospital
Case No. 09-cv-114-PB, Opinion No. 2009 DNH 173

Plaintiffs filed a motion to strike defendant’s fourth affirmative defense, which asserted that the case was subject to New Hampshire’s medical malpractice screening panel statute, N.H. RSA § 519-B, and for a declaration that the statute did not apply in their case. The court granted plaintiffs’ motion to strike, as the fourth defense asserted by defendant was not an affirmative defense, and denied plaintiffs’ additional request for a declaration that the screening statute did not apply. The court concluded that it was required by the Erie doctrine to refer a medical malpractice action to a screening panel, and noted that plaintiffs’ request for a ruling that would bar the panel’s findings from being admitted into evidence was premature. 3 pages. Judge Paul Barbadoro.


PRISONER CIVIL RIGHTS; FIRST AMENDMENT; FREE EXERCISE OF RELIGION
11/20/09
Albert Kuperman v. Warden, New Hampshire State Prison
Case No. 06-cv-420-JL, Opinion No. 2009 DNH 175

The defendants moved for summary judgment in a case where the plaintiff, an inmate in New Hampshire state prison, alleged that his rights to free exercise of religion were violated by a prison policy that allowed his religious diet to be suspended because of a dietary violation. The court granted the motion, ruling that recent changes to the prison policy on religious diets had removed any real and immediate prospect of harm to the plaintiff and thus had mooted his claims, which sought only prospective injunctive relief. The court also ruled that the claims were collaterally estopped by the plaintiff’s prior, unsuccessful litigation of the same issue in state court. The court noted, however, that the policy changes did not necessarily resolve the underlying free exercise concerns. 21 pages. Judge Joseph N. Laplante.


SOCIAL SECURITY
11/9/09
Bica v. SSA
Case No. 09-cv-14-SM, Opinion No. 2009 DNH 171

This case was remanded to the ALJ because he determined that the claimant was not disabled as of her onset date, three years prior to his decision, without determining her disability status at the time of the hearing, as required by Social Security Ruling 83-20. 11 pages. Chief Judge Steven J. McAuliffe.


11/10/09
Bergeron v. SSA
Case No. 09-cv-70-SM, Opinion No. 2009 DNH 174

This case was remanded to the ALJ because she did not explain the weight she gave to a treating-source opinion on an issue reserved to the Commissioner, as required by Social Security Ruling 96-5p. 13 pages. Chief Judge Steven J. McAuliffe.


11/30/09
Duhaime v. SSA
Case No. 09-cv-29-PB, Opinion No. 2009 DNH 183P

Plaintiff appealed the decision to discontinue her disability insurance benefits based on a determination that her medical condition had improved sufficiently to enable her to return to work. The ALJ’s decision was found not to have been supported by substantial evidence, because there was not the requisite medical evidence of signs, symptoms or laboratory findings demonstrating medical improvement needed before benefits may be terminated. The ALJ also failed to properly weigh the opinion of plaintiff’s treating physician, to factor in plaintiff’s correct age, or to assess her pain and other limitations stemming from her various impairments. It was recommended that plaintiff’s motion for remand be granted. 24 Pages. Magistrate Judge James Muirhead.

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