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Bar News - August 17, 2012


US District Court Decision Listing: July 2012

* Published

CONTRACT
7/23/12
Galloway v. Brox
Case No. 11-cv-272-PB, Opinion No. 2012 DNH 125

The case involved a dispute over a right-of-way easement that John and Brenda Galloway granted to Stephen Brox in 1988. The Galloways argued that Brox had breached a 2003 agreement obligating him to pay for the cost of expanding the right-of-way to accommodate his proposed use. They also sought an injunction barring Brox from using the easement to access a concrete plant that he proposes to build on an adjacent property. The court granted Brox’s motion for summary judgment on both claims. Brox did not breach the contract because he was only obligated to pay for expansion of the right-of-way "as needed for [his] use." His only "use" of the easement was listing it on a site plan application to the town planning board, and the Galloways did not claim that he needed to expand or otherwise improve the easement to do so. The court also granted Brox’s motion on the Galloways’ claim for injunctive relief because they failed to present any evidence that Brox’s proposed use was outside the scope of the easement, or that his proposed use would unreasonably burden the easement. 12 pages. Judge Paul J. Barbadoro.


EVIDENCE
7/2/12
Esposito v. SDB Investments, Inc.,
Civil No. 11-cv-402-JL, Opinion No. 2012 DNH 113*

The parties in this trip-and-fall case each moved in limine to admit or exclude evidence from the upcoming jury trial. The court denied the plaintiffs’ motion to allow a view of the premises where the plaintiff fell, ruling that the benefits of a view were outweighed by the burdens on court personnel and jurors of conducting a view at or around 9:30 at night, the time the plaintiff fell. The court also concluded that a view was not warranted because the appearance of the area where the fall occurred had changed substantially since the fall, creating a risk of jury confusion, and the appearance of that area at the time of the fall could be conveyed in photographs or video. The court granted the defendant’s motion to exclude evidence of subsequent changes to the premises under Federal Rule of Evidence 407. Although the court noted that such evidence could be properly admitted if the feasibility of those changes were in dispute, it concluded that such evidence was inadmissible because the defendant had not disputed feasibility. 7 pages. Judge Joseph N. Laplante.


FEDERAL ELECTION CAMPAIGN ACT; COMLETE PREEMPTION
7/10/12
NH Attorney General v. Bass Victory Committee
Case No. 12-cv-170-PB, Opinion No. 2012 DNH 122

The New Hampshire Attorney General ("the AG") filed an action in state court against the Bass Victory Committee, the authorized campaign committee of U.S. Congressman Charles Bass. The AG asserted a state cause of action, seeking statutory civil penalties against the Bass Committee for engaging in "push-polling," as defined in N.H. Rev. Stat. Ann. ("RSA") § 664:2, XVII, without complying with the disclaimer requirements set out in RSA § 664:16-a, I. The Bass Committee removed the case to federal court, arguing that the Federal Election Campaign Act ("FECA") completely preempted the state claim. The AG requested that the matter be remanded to state court for lack of subject-matter jurisdiction. The court granted the AG’s motion. For a federal statute to completely preempt state law, there must be a federal cause of action for same wrongs that state law seeks to remedy. The FECA does not authorize a private cause of action and instead provides that the power of the Federal Election Commission to sue is the exclusive civil remedy for violations of the Act. Without a federal cause of action available to the AG, his state claim could not be transformed into a federal one. Accordingly, the case was not removable to federal court. 10 pages. Judge Paul J. Barbadoro.


FEDERAL TORT CLAIMS ACT
7/13/12
Judith C. Halliday v. United States of America and Done Right Building Services, Inc.
Case No. 10-cv-535-SM, Opinion No. 2012 DNH 123

Plaintiff brought suit seeking to recover damages for injuries she sustained when she slipped on an accumulation of water in a United States Post Office. The court granted the government’s motion for summary judgment, concluding that plaintiff’s FTCA claim was barred by the independent contractor defense and the discretionary function exception. As for the contractor hired by the government to maintain the premises in a safe condition, however, the court denied its motion for summary judgment, concluding that there were genuinely disputed issues of material fact. 4 pages. Judge Steven J. McAuliffe.


FOURTH AMENDMENT
7/17/12
Castro v. Panica
Case No. 10-cv-554-PB, Opinion No. 2012 DNH 124

Sebastian Castro was injured when Manchester police officer Charles Panica tackled him during the course of an arrest. Castro brought a variety of state and federal claims against Panica, several other officers who were present when Castro was arrested, the Chief of Police, and the City of Manchester. Defendants challenged all of Castro’s claims in a motion for summary judgment. The court concluded that Castro had waived many of his claims by failing to defend them in response to defendants’ motion. On the remaining claims, the court conclude that the excessive force and the assault and battery claims against Panica survived summary judgment, as did the claim that the City was vicariously liable for the assault and battery.

According to Castro’s witnesses, Panica used substantial force to arrest Castro for a minor infraction and caused him significant injury when there were no indicia that lesser means would have failed. Accordingly, a jury could have found that the use of force was unreasonable. Because the excessive conduct was such an obvious violation of the prohibition on unreasonable force, Panica could not avail himself of qualified immunity at this stage of the case. 16 pages. Judge Paul J. Barbadoro.


SOCIAL SECURITY
7/9/12
Hines v. Michael J. Astrue, Commissioner, SSA
Case No. 11-cv-262-PB, Opinion No. 2012 DNH 121

Hines appealed the Commissioner’s denial of her applications for disability benefits. She argued that the ALJ who considered her application erred in assessing her residual functional capacity ("RFC") and improperly relief on the Medical-Vocational Guidelines ("Grid") to determine that she was not disabled. After reviewing the record, the court affirmed the Commissioner’s decision. The ALJ’s RFC assessment was supported by most medical opinions in the record, and the ALJ properly discounted opinions inconsistent with that assessment. The ALJ also properly relied on the Grid to find that Hines was not disabled. Substantial evidence supported the ALJ’s conclusion that Hines’s mental impairments did not impose a significant restriction on the range of work she could perform. The court cautioned, however, that ALJs should typically seek vocational expert testimony instead of relying on the Grid when a claimant has non-exertional limitations. 33 pages. Judge Paul J. Barbadoro.


07/06/12
Joy Fogg v. Michael J. Astrue, Commissioner, Social Security Administration
Civil No. 11-cv-164-PB, Opinion No. 2012 DNH 116

Joy Fogg sought review of the Commissioner’s decision denying her application for disability insurance benefits. The court found that the ALJ who considered her case erred in discounting the opinions of two of her treatment providers and in giving excessive weight to the opinion of the non-examining state agency physician. A recent MRI was unavailable to the agency physician, but it provided clinical evidence to support the opinions of Fogg’s treating physicians. Because the ALJ failed to account for the potential impact of the MRI, and to account for it as a potential source of divergence between the differing opinions, his conclusion was not supported by substantial evidence. Furthermore, the ALJ also erred in assessing Fogg’s subjective complaints of pain because he determined, contrary to the record evidence, that she had not suffered from pain prior to 2008, and because he selectively ignored evidence supporting Fogg’s claims without providing sufficient reasons. The court reversed and remanded the Commissioner’s decision. 27 pages. Judge Paul J. Barbadoro.


07/06/12
Thomas Bruce Wenzel v. Michael J. Astrue, Commissioner, Social Security Administration
Civil No. 11-cv-269-PB, Opinion No. 2012 DNH 117

Thomas Wenzel sought review of the Commissioner’s decision denying his application for disability insurance benefits. In response to Wenzel’s attacks on the ALJ’s evaluation of the medical opinion evidence, the court determined that although the record before the ALJ did not include all of Wenzel’s treatment providers’ medical notes, the record was not materially incomplete, as it included all relevant symptoms and conditions. The court also concluded that the ALJ gave sufficient good reasons for according greater weight to the physicians opposing Wenzel’s position than those physicians who supported his position. Wenzel also challenged the ALJ’s weighing of his subjective complaints of pain, but the court explained that it was bound to accept an ALJ’s credibility determination where, as here, it was supported by substantial evidence. In sum, the court upheld the Commissioner’s decision, finding no reversible error in the ALJ’s evaluation of either the medical opinion evidence or Wenzel’s subjective complaints of pain. 19 pages. Judge Paul J. Barbadoro.

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