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Bar News - November 16, 2016


US District Court Decision Listing

October 2016

* Published

ADEA, PROOF OF FUTURE PAY DAMAGES

10/28/16
Frederick Nashawaty v. Winnipesaukee Flagship Corporation
Case No. 15-cv-118-JD, Opinion No. 2016 DNH 190

Before trial, the defendant moved to exclude the plaintiff’s claim for future pay damages on the ground that the plaintiff lacked an expert witness to support such damages and proof of present value. The plaintiff objected, arguing that his testimony and evidence of his employment intentions and the pay he would have received were sufficient to prove future pay and that present value could be calculated without expert testimony. The court decided that the claim for future damages could go to the jury for an advisory verdict without discounting to present value, which would then be subject to post-trial briefing and a hearing on the sufficiency of the evidence and the information necessary to calculate present value. 11 pages. Judge Joseph A. DiClerico, Jr.


DISCOVERY; PRIVILEGE

10/13/16
Doe v. Phillips Exeter Academy,
Case No. 16-cv-396-JL, Opinion No. 2016 DNH 181

Invoking the attorney-client privilege, the defendant moved for a protective order to prevent disclosure in discovery of reports prepared by an investigator hired by the defendant’s outside counsel. The court denied the defendant’s motion. To the extent the reports consisted of facts acquired from third parties, the court concluded, they likely did not enjoy the privilege’s protection. Even if they were privileged, however, the court found that the defendant waived the privilege by putting the reports’ contents at issue in litigation and disclosing their contents to third parties and in court filings. 12 pages. Judge Joseph N. Laplante.


EMOTIONAL DISTRESS

10/31/16
Exeter Hospital, Inc. v. David Kwiatkowski; Maxim Healthcare Services, Inc.; The American Registry of Radiologic Technologists; and Triage Staffing, Inc.
Case No. 14–cv-009-SM, Opinion No. 2016 DNH 200

Following an outbreak of Hepatitis-C at Exeter Hospital, the hospital settled a number of claims advanced by patients who, although not infected, sought compensation for emotional distress they claimed to have suffered when they learned that they might have been infected. The hospital sought statutory contribution from several alleged joint tortfeasors. Those defendants moved to dismiss the claims based on payments made to non-infected patients, asserting that the hospital’s complaint failed to state a viable claim for negligence or negligent infliction of emotional distress under New Hampshire law. Essentially, defendants asserted that the hospital was not obligated to pay anything on those claims. The court agreed, concluding that the complaint failed to plausibly allege that each (or, indeed, any) of the 188 non-infected patients suffered from physical symptoms proximately caused by their claimed emotional distress. 14 pages. Judge Steven J. McAuliffe.


EVIDENCE; EXPERT TESTIMONY

10/13/16
Barrett v. Badger Ladder, et al
Case No. 15-cv-339-JL, Endorsed Order. No opinion number.

In an endorsed order, and citing its own orders in Adams v. J. Meyers Builders, Inc., 671 F. Supp. 2d 262 (2009); Masello v. Stanley Works, Inc., 825 F. Supp. 2d 308 (2011); and Warford v. Industrial Power Systems, Inc., 553 F. Supp. 2d 28 (2008),the court declined defendant’s sweeping motion to “exclude all of the opinions offered by plaintiff’s expert” under the Daubert standard. The court found that the defendant’s objections to the expert testimony regarding the safety of a ladder and adequacy of its warnings went to the weight of the evidence, and not its admissibility under Federal Rule of Evidence 712. Endorsed order. No written opinion.


FORECLOSURE

10/17/16
Bonnie McGrenaghan v. Federal National Mortgage Association a/k/a Fannie Mae
Case No. 15–cv-271-SM, Opinion No. 2016 DNH 183

Mortgagor asserted that mortgage holder breached the terms of the mortgage by failing to give her a second notice of default and an opportunity to cure that default after the original foreclosure was cancelled, but before it was rescheduled. The court concluded she was not contractually entitled to a new notice of default, nor was she entitled to a renewed opportunity to cure that default. Accordingly, the court granted defendant’s motion for summary judgment on plaintiff’s breach of contract claim. 4 pages. Judge Steven J. McAuliffe.


HABEAS CORPUS

10/28/16
Phillip Rawnsley v. United States of America
Case No. 16–cv-190-SM, Opinion No. 2016 DNH 198

In 2010, Petitioner was convicted of, and sentenced for, six counts of Hobbs Act robbery and one count of using a firearm in connection with a crime of violence. Ordinarily, then, any collateral attack on his sentence would be time barred. But, says petitioner, he is entitled to habeas corpus relief (in the form of resentencing) under the new rule of law announced in Johnson v. United States, 135 S. Ct. 2251 (2015), which held that the residual clause of the Armed Career Criminal Act (“ACCA”) is unconstitutionally vague. Importantly, however, petitioner was not sentenced under the ACCA. Instead, he was sentenced under the provisions of 18 U.S.C. § 924(c). And, while that statute has language similar to that ruled unconstitutionally vague in Johnson, that fact alone does not render petitioner’s sentence constitutionally unsound. More importantly, unless and until the Supreme Court holds that the provisions of section 924(c) invoked by petitioner are unconstitutional (and further holds that its decision is retroactive to cases pending on collateral review), petitioner is not entitled to the otherwise untimely habeas relief he seeks. 4 pages. Judge Steven J. McAuliffe.


INDICTMENTS; CONSTITUTIONAL LAW

10/28/16
United States v. Ackell,
Case No. 15-cr-123-JL, Opinion No. 2016 DNH 185*

The defendant, indicted for cyberstalking under 18 USC § 2261A(2)(B), moved to dismiss the indictment as insufficient, and challenged the statute as unconstitutionally overbroad and vague on its face. The indictment set forth the statutory elements and informed the defendant of the timeframe, location, object, and means of his culpable conduct, and thus, the court concluded, was not deficient. Nor did the 2013 amendments to the cyberstalking statute render it overbroad because the statute required that the defendant, acting with requisite intent, engage in a course of conduct that either caused substantial emotional distress to the intended target or would reasonably be expected to do so – an objective standard. Finally, the defendant was barred from challenging the statute as vague on its face in the absence of an as-applied challenge on those grounds. 21 pages. Judge Joseph N. Laplante.


PERSONAL INJURY

10/31/16
Jennifer Lizzol, Michael Lizzol, and T.G. v. Brothers Property Management Corporation, Out Back Kayak, Inc., and Martin Welch
Case No. 15–cv-100-SM, Opinion No. 2016 DNH 199

Plaintiffs, who were injured in a snowmobiling accident, brought suit against the resort through which they arranged snowmobile lessons and a guided tour, the company providing the lessons and tour, and the tour instructor and guide. Plaintiffs asserted claims of negligence, including negligent training and supervision, vicarious liability, bystander liability and loss of consortium. Defendants moved for summary judgment based upon a liability release and covenant not to sue executed by the plaintiffs before the accident. Plaintiffs argued that the release was not enforceable because a reasonable person would not understand it to encompass claims for negligent instruction, or negligent trail guidance. The court disagreed, finding, under New Hampshire’s law, that the release was broad in reach, detailed, and clear, and plainly encompassed the claims at issue. Plaintiffs further argued that the release did not encompass their claims against the tour company and tour guide; that plaintiffs’ failure to initial certain paragraphs of the release rendered those paragraphs unenforceable; that the release violated public policy; and that they were fraudulently induced to enter into the release. The court found each of these arguments unavailing as well, and granted defendants’ motion for summary judgment. 27 pages. Judge Steven J. McAuliffe.


SOCIAL SECURITY

10/21/16
Philip Simard v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration
Case No. 15–cv-413-SM, Opinion No. 2016 DNH 186

Claimant moved to reverse or vacate the Acting Commissioner’s decision denying his applications for Disability Insurance Benefits and Supplemental Security Income. Claimant argued that the ALJ erred by (1) improperly striking some of claimant’s late-filed exhibits from the record; and (2) erroneously concluding that if claimant discontinued his substance abuse he would not be disabled. The court disagreed, concluding that the ALJ did not abuse his discretion in striking the late-filed exhibits. It also held that there was substantial evidence in the record to support the ALJ’s conclusion that alcohol and drug abuse were material to the determination of disability and, without them, claimant would retain the RFC to perform a range of light work. 26 pages. Judge Steven J. McAuliffe.

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