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Bar News - May 13, 2011

US District Court Decision Listing - April 2011 and March Additions

* Published

Roberts v. Wentworth-Douglass Hospital, et al.
Case No. 09-cv-34-SM, Opinion No. 2011 DNH 051

Plaintiff, a former pre-trial detainee at the Strafford County Department of Corrections, brought suit alleging that defendants denied him adequate medical care and subjected him to unnecessary surgery. After plaintiff repeatedly failed to disclose an expert medical witness, defendants moved for summary judgment. The court granted those motions, concluding that absent expert medical testimony, plaintiff could not demonstrate that he was the victim of medical malpractice, nor could he show that defendants’ treatment of him was so far below acceptable medical standards that it amounted to an unnecessary and wanton infliction of pain in violation of the Eighth Amendment. 12 pages. Chief Judge Steven J. McAuliffe.

True v. DJQ Enterprises, Inc., et al.
Case No. 09-cv-439-SM, Opinion No. 2011 DNH 033

Plaintiff sued his former employer, advancing a common law claim for wrongful discharge and a federal claim for relief under the Fair Labor Standards Act. Defendant moved for summary judgment on the common law claim, asserting that, as a matter of law, it cannot coexist with his FLSA claim. In support of that position, defendant invoked Smith v. F.W. Morse & Co., 76 F.3d 413, 428-29 (1st Cir. 1996). The court denied defendant’s motion, holding that Smith’s broad interpretation of New Hampshire’s common law is now suspect, given subsequent New Hampshire Supreme Court decisions, and defendant had not adequately developed the federal preemption analysis now required in situations of this sort. 4 pages. Chief Judge Steven J. McAuliffe.

Hall v. GMAC Mortgage, LLC, et al.
Case No. 10-cv-158-SM, Opinion No. 2011 DNH 034

Plaintiff sought to voluntarily dismiss her complaint without prejudice. Defendants objected, asserting that the court should, instead, grant their pending motion to dismiss (and, thus, dismiss plaintiff’s claims with prejudice). The court dismissed plaintiff’s complaint, without prejudice, and denied defendant’s motion as moot. It reasoned that because defendants had filed neither an answer nor a motion for summary judgment, straightforward application of Fed. R. Civ. P. 41(a)’s terms allowed plaintiff to voluntarily withdraw her complaint without prejudice. 4 pages. Chief Judge Steven J. McAuliffe.



Joseph N. Massello v. The Stanley Works, Inc. and ZAG Industries, Inc.
Civil No. 08-cv-136-JNL, Opinion No. 2011 DNH 061

Each of the parties to a products liability case arising out of the failure of the defendants’ plastic stepstool moved to preclude the one of the other’s designated expert witnesses from testifying at trial. The defendants challenged, as speculative, the plaintiff’s expert’s opinion that the stool had cracked due to the lack of a radius at the juncture between one of its legs and the bottom step, but the court rejected this challenge because the opinion was based on the expert’s experience as a plastics engineer that plastic objects tend to break where they have sharp corners, and that rounded corners are used to prevent this. The plaintiff challenged the defendants’ expert’s opinion that the stool was "reasonably designed," arguing that the expert was unqualified to give it and that it was unsupported by literature, but the court rejected those challenges because the opinion was based on successful presale testing of the stool, and the expert was an experienced products tester. 16 pages. Judge Joseph N. Laplante.

New Cingular Wireless PCS, LLC v. Candia, NH, et al.
Case No. 09-cv-387-SM, Opinion No. 2011 DNH 063

New Cingular Wireless ("AT&T") proposed to construct a cellular telecommunications tower in the Town of Candia at any one of four different heights: 180, 150, 115, or 100 feet tall. After some preliminary litigation and a remand, the Town granted AT&T’s application in part, and denied it in part, authorizing AT&T to construct a 100-foot tall tower at the proposed site. The Town denied AT&T’s three requests for a taller tower, reasoning that each would require a variance from the "fall zone" setback requirement of the local zoning ordinance and concluding that AT&T failed to demonstrate it was entitled to such a variance. AT&T challenged that decision as well, asserting that it was not supported by substantial evidence. The court disagreed, concluding that AT&T did not demonstrate that it would suffer an unnecessary hardship if it were allowed to build only the 100-foot tower. 13 pages. Chief Judge Steven J. McAuliffe.

Jones v. Secord
Case No. 10-cv-146-PB, Opinion No. 2011 DNH 068

Gail Jones, the executrix for one of the victims of a murder committed by Michael Woodbury with a handgun he stole from his grandfather Lawrence Secord’s hunting camp, sued Secord, claiming he was negligent in failing to properly secure the firearm and report the theft before the murder. Summary judgment was granted for Secord on both claims because the undisputed evidence established that the camp was locked and Woodbury, who had not had access to the camp for several years, only gained entry by breaking a window and entering the camp without permission. Moreover, there was no genuine dispute of material fact that Secord did not actually learn of the theft until after the murder. 5 pages. Judge Paul Barbadoro.

Green Tree Servicing, LLC v. United States of America
Civil No. 09-cv-191-JNL, Opinion No. 2011 DNH 056*

The plaintiff, which held a mortgage on a parcel encumbered by federal tax liens, brought an action for equitable relief to restore the priority of the mortgage over the liens, alleging that the mortgage had been mistakenly discharged before the liens were filed. The government objected to the plaintiff’s motion for summary judgment, arguing, among other things, that federal law barred the reinstatement of a mistakenly discharged mortgage to a position of priority over intervening federal tax liens. The court rejected that argument based on Progressive Consumers Federal Credit Union v. United States, 79 F.3d 1228 (1st Cir. 1996), which holds that federal law did not bar that relief so long as it is available under state law–-which it is in New Hampshire. Nevertheless, the court denied the plaintiff’s motion for summary judgment because it had not conclusively shown that the discharge was in fact the product of mistake and, if so, that the mistake was free from culpable negligence. 28 pages. Judge Joseph N. Laplante.

Alesha Moss v. Michael J. Astrue, Commissioner, Social Security Administration
Civil No. 10-cv-054-JL, Opinion No. 2011 DNH 064

The claimant appealed the denial of disability benefits claiming that the administrative law judge: (1) improperly assessed her credibility when determining the limiting effects of her pain, (2) did not properly consider the medical opinions of her treating physicians, (3) improperly ignored the testimony of a family friend, (4) failed to consider the effects of her depression and anxiety, and (5) improperly posed questions to a vocational expert based on hypothetical residual functional capacities unsupported by the record. The Commissioner moved for an order affirming his decision. The court denied the claimant’s motion and granted the Commissioner’s motion. The court, after a searching review of the record, concluded that there was ample support for the administrative law judge’s finding that the claiamant’s allegations of pain were less than credible. The court also concluded that the record supported the administrative law judge’s decision to give greater weight to the residual functional capacity assessment of a consulting physician than to the opinions of the claimant’s treating physicians. The court also found that the administrative law judge did not err in determining, based on both reviewing and examining psychologist reports, that Moss’s anxiety and depression were not severely disabling. Finally, because the court concluded that the administrative law judge’s residual functional capacity determination was supported by substantial evidence in the record, he did not err in failing to consider the testimony of a family friend and in posing certain hypotheticals to a vocational expert. 51 pages. Judge Joseph N. Laplante.

Contour Design, Inc. v. Chance Mold Steel Co., Ltd. and EKTouch Co., Ltd.
Civil No. 09-cv-451-JNL, Opinion No. 2011 DNH 069

The parties to a case arising out of a failed manufacturing relationship cross-moved for summary judgment, with the defendants arguing that the plaintiff could not show that the defendants’ competing products misappropriated any of the plaintiff’s trade secrets or confidential information and the plaintiff arguing that the defendants’ counterclaim for breach of contract was barred by the statute of limitations. The court denied both motions. First, the court ruled that genuine issues of fact remained as to whether the defendants’ products used the same firmware as the plaintiff’s products, necessitating trial on the plaintiff’s claims that the defendants’ products misappropriated its trade secrets and confidential information. Second, the court ruled that the plaintiff could not assert a limitations defense because it had not been raised in the plaintiff’s reply to the counterclaim, and the plaintiff had not shown the requisite good cause necessary to amend its reply to add the defense some nine months after the deadline set forth in the scheduling order–-particularly where the date of the alleged breach was set forth in the counterclaim itself and known to the plaintiff’s president since the underling events occurred. 27 pages. Judge Joseph N. Laplante.

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