New Hampshire Bar Association
About the Bar
For Members
For the Public
Legal Links
Publications
Newsroom
Online Store
Vendor Directory
NH Bar Foundation
Judicial Branch
NHMCLE

A confidential, independent resource for NH lawyers, judges and law students.

Trust your transactions to the only payment solution recommended by over 50 bar associations.
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency
MyNHBar
Member Login
Member Portal
Casemaker

Bar News - July 19, 2013


US District Court Decision Listing: June 2013

* Published

DISCOVERY
6/26/13
Davis v. Jacob S. Ciborowski Family Trust, et. al.
Case No. 11-cv-436-PB, Opinion No. 2013 DNH 089

Defendants filed a motion to reconsider the Magistrate Judge’s decision awarding plaintiffs attorney’s fees they incurred during a discovery dispute and ordering defendants’ counsel to pay the fees. Upon reconsideration of the motion, the court found that defendants failed to substantially justify their decision to challenge plaintiffs’ discovery requests or to explain why the court should order the defendants instead of their counsel to pay the attorney’s fees. The court held that the Magistrate’s order awarding fees and requiring counsel to pay them was not clearly erroneous and denied the defendants’ motion to reconsider. 18 pages. Judge Paul J. Barbadoro.


EVIDENCE
6/5/13
MMG Insurance Company v. Samsung Electronics America, et al.
Case No. 11-cv-433-JL, Opinion No. 2013 DNH 084*

The parties to a products liability action arising out of a house fire allegedly caused by a DVD player made and sold by the defendants filed motions in limine to exclude evidence at trial. The court ruled that (1) because the plaintiff’s designated expert witness had failed to mention in his report that he conducted burn testing on components of a sample DVD player, and because, even at his deposition, he had failed to explain the methodology for that testing, he would not be able to testify to it at trial, (2) even though the defendants had failed to include, with their expert disclosures, a video of burn testing performed by their designated expert witness, that failure was harmless, allowing the video’s introduction at trial, because the video was produced at the deposition, and plaintiff never followed up on its request for a copy until just before trial, (3) anonymous and vague on-line complaints of fires in allegedly similar products made by the defendant, posted on third-party websites, did not give plaintiff a good-faith basis to cross-examine the defendants’ expert about the adequacy of his investigation into whether the defendant’s product caused the fire at issue, and, in any event, were unfairly prejudicial, and (4) the defendants’ could use, at trial, the deposition of a witness who was unavailable due to his absence on vacation. 29 pages. Judge Joseph N. Laplante.


HABEAS CORPUS (2255); INEFFECTIVE ASSISTANCE OF COUNSEL
6/4/13
Angel Baez-Gil v. United States of America
Case No. 12-cv-266-JL, Opinion No. 2013 DNH 083

The petitioner pleaded guilty to conspiracy to possess with intent to distribute, and conspiracy to import, cocaine. The plea agreement stipulated that one of the petitioner’s co-conspirators--who died after a cocaine-filled package, which she swallowed to “mule” the drug, burst–-had died from the “use” of the drug, a fact that subjected the petitioner to a higher mandatory minimum sentence. The petitioner subsequently mounted a collateral attack on his conviction and sentence, seeking a writ of habeas corpus on the grounds that his trial counsel had provided ineffective assistance by failing to inform him, or to argue during plea negotiations or sentencing, that the co-conspirator’s ingestion of the drug in order to transport it did not constitute the “use” of the drug. The court denied the petition, noting that whether the statutory term “use” excluded the ingestion of a drug in order to transport it was a novel issue. Observing that courts had repeatedly held that counsel’s failure to contemplate a novel argument does not constitute ineffective assistance, the court concluded that the petitioner’s counsel had not rendered ineffective assistance. 12 pages. Judge Joseph N. Laplante.


INSURANCE; PROFESSIONAL MALPRACTICE
6/28/30
Attorneys Liability Protection Society v. Whittington Law Associates, PLLC, et al.
Case No. 11-cv-563-JL, Opinion No. 2013 DNH 091*

The parties to this dispute as to the scope of a law firm’s professional liability insurance policy filed cross-motions for summary judgment. The parties’ disagreement concerned whether the policy required the insurer to provide coverage against a suit by the law firm’s bank, which arose when the firm was ensnared by a so-called “Nigerian Check Scam.” The firm had been induced, by a person purporting to be a bona fide client, to deposit a sizeable check into its bank account and promptly wire the bulk of the funds to a foreign account; by the time the bank discovered the check was invalid, the funds had already been withdrawn from the foreign account. The court granted summary judgment to the insurer, concluding that the bank’s suit against the law firm was unambiguously excluded from coverage by a policy exclusion for the “misappropriation . . . by any person of client or trust account funds or property, or funds or property of any other person held or controlled by an Insured in any capacity or under any authority.” The firm’s control of the misappropriated bank funds, the court observed, was evidenced by the fact that the bank wired those funds at the firm’s direction. 19 pages. Judge Joseph N. Laplante.


INSURANCE
6/14/13
Douglas Desjardins and Stephanie Desjardins v. Fidelity National Title Insurance Company
Case No. 12-cv-272-SM, Opinion No. 2013 DNH 086

Plaintiffs sought a declaratory judgment that they are entitled to coverage under a homeowner’s title insurance policy. In particular, they said the insurer has an obligation to defend their title interests in a state court quiet title action that threatens to reduce the size of a parcel of waterfront property over which plaintiffs hold an easement for swimming and boating. The insurance company denied coverage, saying the policy provides coverage only for the property on which plaintiffs’ home is located; it does not cover the appurtenant easement plaintiffs hold over non-adjacent land. The court disagreed, holding that because the policy defined the insured land to include the easement, plaintiffs were entitled to coverage. Plaintiffs’ motion for summary judgment granted. 19 pages. Judge Steven J. McAuliffe.


SOCIAL SECURITY
6/28/13
Brown v. Colvin
Case No. 12-cv-234-PB, Opinion No. 2013 DNH 090

Jeffrey Brown appealed the denial of his application for social security disability insurance benefits arguing that the ALJ failed to properly evaluate the medical evidence. The court concluded that the agency erred in failing to consider Brown’s obesity in making a disability determination and in evaluating the medical evidence from Brown’s treating physician. The court remanded the case to the Social Security Administration for further proceedings consistent with the decision. 27 pages. Judge Paul J. Barbadoro.


SOCIAL SECURITY; DISABILITY
6/25/13
Janice Scanlon v. Michael J. Astrue
Case No. 12-cv-189-JL, Opinion No. 2013 DNH 088

A claimant appealed a ruling of an Administrative Law Judge of the Social Security Administration that the claimant no longer suffered from a continuing disability as the result of injuries she had suffered in a car accident several years earlier. In affirming the ALJ’s decision, the court ruled that (1) the ALJ properly found that the claimant suffered from only slight cognitive limitations, based on the absence of any contrary evidence in her medical records, (2) the ALJ supportably found that many of the claimant’s symptoms were not supported by objective medical evidence, and that much of her testimony as to those symptoms was not credible, since it conflicted with her reports to her medical providers, and (3) the ALJ properly weighed conflicting reports from those sources, including the claimant’s treating physician. 20 pages. Judge Joseph N. Laplante.

NHLAP: A confidential Independent Resource

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer