Anthrax settlement may moot contempt case
Areas of Focus | 2008/07/01 15:50

The US Department of Justice announced Friday that it has settled a lawsuit brought by former US Army germ-warfare researcher Dr. Steven Hatfill, a development that may moot a landmark contempt case against former USA Today reporter Toni Locy now awaiting a ruling by the US Court of Appeals for the DC Circuit. Under the settlement, Hatfill would drop all damages claims against the government in return for a lump sum payment of $2.825 million and a 20-year annuity of $150,000 amounting to $3 million. Hatfill had initially sued the Department alleging that it violated the US Privacy Act by providing personal information and information about him to journalists - including Locy - during its investigation of the 2001 anthrax attacks in which he was at one point named a "person of interest". Locy had refused to disclose her sources in discovery, arguing that the information Hatfill was seeking was not central to his lawsuit. In a letter to the Court of Appeals Friday informing it of the settlement, Hatfill lawyer Christopher Wright said that Locy's evidence was no longer needed by his client.

In March, US District Judge Reggie Walton found Locy in contempt of court for not disclosing her sources and ordered her to pay a fine of $500 a day, increasing to $1000 a day after one week and then up to $5000 a day after two weeks, the costs of which could not be covered by her former employer. Locy obtained an emergency stay of that order from the Court of Appeals and oral arguments on the merits of the sanctions were heard last month. The appeals court has yet to make a formal ruling on the status of the contempt case in light of the Hatfill settlement, but Locy said late Friday that she and her lawyers are hopeful that the deal would end the matter. Locy will be a professor at Washington & Lee University's journalism school this fall.



NY Sets Bar High for Adult Victims of Predatory Clergy
Legal Topics | 2008/06/30 17:30

New York’s highest court has set the bar prohibitively high for proving certain civil cases against predatory clergy by ruling that a woman cannot sue a rabbi who had an affair with her because she was not “uniquely vulnerable and incapable of self-protection."

Some state and federal courts have upheld breach of fiduciary duty claims arising from sexual misconduct by clergy with adult parishioners whom they are counseling. A fiduciary duty exists, those courts said, if the clergy member “held himself out as possessing the education and experience” of a professional counselor.

Only last month, an intermediate New York appeals court recognized a fiduciary duty claim for the first time in the case of a woman who sued a Catholic priest for damages arising out of her adulterous relationship with him. Doe v. Roman Catholic Diocese.

But the New York Court of Appeals pretty much slammed the door on such cases in finding last week that Adina Marmelstein had “insufficiently demonstrate[d] that she developed a fiduciary relationship” with Rabbi Mordecai Tendler.

“Allegations that give rise to only a general clergy-congregant relationship that includes aspects of counseling do not generally impose a fiduciary obligation upon a cleric,” the opinion said.

“To establish that a course of formal counseling resulted in a cleric assuming 'de facto control and dominance' over the congregant,” it continued, “a congregant must set forth facts and circumstances in the complaint demonstrating that the congregant became uniquely vulnerable and incapable of self-protection regarding the matter at issue.”

Tendler, who officiated at an Orthodox Jewish synagogue in New Hempstead, N.Y., counseled Marmelstein for emotional problems. They allegedly began their affair after he told her that “a course of sexual therapy” would make her more attractive to men and help her find a husband.

Marmelstein's allegations were insufficient, Judge Victoria A. Graffeo wrote for the appeals court, because she “has shown only that she was deceived by Tendler, not that she was so vulnerable as to surrender her will and capacity to determine her own best interests.”

In a footnote, Graffeo said she was not suggesting that “a cleric who is also a licensed professional, such as a psychiatrist, psychologist or attorney, could not assume fiduciary obligations under existing laws and the secular standards that govern the practice of those professions.”

But her decision means clerics who are not licensed professionals cannot be sued for sexual misconduct unless the plaintiff somehow meets a “vulnerability” standard which completely disregards the inherent “control and dominance” that clergy assume over congregants.

As a more enlightened New York appellate judge put it, “The hallmark of fiduciary duty -- an imbalance of power between the parties -- is especially manifest in the relationship between a priest and parishioner.” Langford v. Roman Catholic Diocese, 271 A.D.2d 494 (2000).



"Parrot Fever" Suit May Not Fly
Legal Topics | 2008/06/27 16:16

The family of a Texas man who allegedly died of a disease contracted from a sick cockatiel has sued PetSmart for wrongful death, but the fate of similar cases around the country suggests their products liability theory will not fly.

The cockatiel that Amanda de la Garza bought from the Corpus Christi PetSmart store on Sept. 30, 2006 was allegedly suffering from a bacterial infection that crossed over to her father and caused him to be infected with the disease psittacosis, also known as “parrot fever.” Joe de la Garza, 63, died of psittacosis two weeks later.

At least five states have rejected products liability claims against pet stores for selling a defective animal, with courts in Missouri and Ohio taking that position in cases involving parrots. “We ... conclude that a parrot is not a product for purposes of products liability,” the Ohio Court of Appeals said in Malicki v. Koci, 700 N.E.2d 913 (1997).

But in a petition filed earlier this month, the de la Garza family allege that at the time “the bird left the hands of PetSmart, Inc,, the bird was diseased, defective, and unreasonably dangerous” and its defective condition was “a producing cause” of the death of Joe de la Garza.

“As a result, PetSmart, Inc. is strictly liable to the Plaintiffs herein,” the suit says.

A PetSmart representative told KIII-TV in Corpus Christi that the company is not aware of any confirmed cases of humans contracting psittacosis from humans. The de la Garzas insist that “The diseases of birds can cross over to the human population and can cause disease in the people who buy the birds.”

Amanda de la Garza also fell ill and was hospitalized “as a result of psittacosis,” the suit alleges. But whatever the scientific facts may be, PetSmart could argue that it cannot be sued for products liability as a matter of law.

In the seminal case of Whitmer v. Schneble, 331 N.E.2d 115 (1975), the Illinois Appellate Court ruled that an animal could not be a product since its "nature" is not "fixed" when it leaves the hands of a seller.

The Missouri Court of Appeals agreed with that view in rejecting a products claim filed by a parrot buyer who allegedly contracted psittacosis from the bird. “It seems unreasonable for us to hold a seller liable for changes potentially wrought upon a 'product' by the purchaser, while the item was completely outside the seller's control,” it said in Latham v. Wal-Mart Stores, 818 S.W.2d 673 (1991).

New York, Connecticut and Oregon have ruled otherwise. As a New York trial judge said in Beyer v. Aquarium Supply Co., 404 N.Y.S.2d 778 (1997),

[T]here is no reason why a breeder, distributor or vendor who places a diseased animal in the stream of commerce should be less accountable for his actions than one who markets a defectively manufactured product. The risk presented to human well-being is as great and probably greater than that created by a defectively manufactured product.
But in the most recent case on point -- Blaha vs. Stuard, 640 N.W.2d 85 (2002) --- the South Dakota Supreme Court found a dog was not a product. And you can expect the generally conservative, pro-business Texas courts to follow the Whitmer line of cases.

The de la Garzas also allege that PetSmart and Rainbow Exotics, a Waco bird supplier, are liable for negligent inspection and handling of the cockatiel and failing to warn Amanda de la Garza that “bird disease could affect humans.”

Amanda, the suit says, noticed the bird “was subdued and had separated itself from the other birds offered for sale,” but “was told that the bird was having a 'bad day.'”

Plaintiffs have recently sued PetSmart in Massachusetts and Rhode Island, alleging family members died as a result of receiving organs from donors which had been infected with a virus contracted from pet hamsters. Those cases, however, do not allege products liability.



Drunken Groom's Marriage Declared Invalid After 30 Years
Areas of Focus | 2008/06/26 16:04

An Australian bridegroom was horrified to learn after he had walked down the aisle that he was already married — after a drunken holiday romance he could barely remember.

The husband has had to confess in the Family Court that he spent 28 days partying and drinking in Arizona in 1978 on leave from his job as a cook on the oil rigs.

He can remember the "nice" blonde American woman he met through a pen pal newspaper advertisement — but little more.

"He has no recollection of going through any form of ceremony of marriage with her, or of discussing marriage, or of anything referable to marriage," said Justice Sally Brown, who annulled the marriage last month.

Not only that, but the man, who describes himself as an old-fashioned romantic, was already married at the time — to his wife of 14 years.

Yesterday the 67-year-old, who cannot be identified, told The Daily Telegraph "the sky fell in" when he was shown the Arizona marriage license.

"I looked at the signature and thought it could have been mine or it could not have been," he said.

The man had since divorced his 1966 wife. It was when he married his Hawaiian girlfriend in 2006 and applied to live in Hawaii with her that U.S. immigration authorities broke the bad news.

He said his latest wife, who has become his girlfriend again because their marriage was declared invalid, was very understanding.



"Naked Cowboy" Wins Court Shoot-Out with Candy Cowboy
Areas of Focus | 2008/06/25 16:05

A ruling in a trademark infringement case filed by a New York street entertainer who performs as “The Naked Cowboy” is another indication that judges may be taking parodies too seriously when the parody conveys a commercial message.

Robert Burck alleged an animated cartoon advertisement that featured a blue M&M dressed “exactly like The Naked Cowboy” violated the Lanham Act, which prohibits a false endorsement of a product or service by a real person. The ad ran on oversized billboards in Times Square, where Burck plies his trade, dressed only in a white cowboy hat, cowboy boots and underpants.

M&M's manufacturer Mars, Inc. argued that no consumer would be likely to confuse its parody as an endorsement of its product by Burck. The cowboy M&M, it said, is “part of a series of parodies of the 'New York City experience,'” which also portrays an M&M as King Kong climbing the Empire State Building.

But U.S. District Judge Denny Chin denied Mars' motion to dismiss, finding factual issues as to whether the M&M Cowboy characters are a parody of Burck's creation.

“Some consumers, as defendants argue, may view the the M&M Cowboy characters as part of a larger work depicting New York scenes and parodying famous New York characters,” he said in a June 23 opinion. But, he continued,

other consumers may mistakenly believe that The Naked Cowboy himself endorsed the copying of his “trademarked likeness” because the M&M Cowboy characters appear in a commercial setting.

Chin's ruling is quite similar to that of a Los Angeles judge who ruled in December 2007 that Paris Hilton could sue Hallmark Cards over its humorous use of her likeness and “That's Hot” catchphrase on a greeting card.

“[T]he potential exists that the card is sufficiently evocative of an image Hilton has presented of herself that Hallmark is capitalizing on her notoriety,” U.S. District Judge Percy Anderson concluded.

The U.S. 9th Circuit Court of Appeals has noted that “the cry of 'parody!' does not magically fend off otherwise legitimate legitimate claims of trademark infringement or dilution. There are confusing parodies and non-confusing parodies.” Dr. Seuss Enterprises v. Penguin Books, 109 F.3d 1394 (1997).

But parodies which have a commercial purpose should be protected under the First Amendment if the use of a trademark “was not specifically misleading as to sponsorship or endorsement.” In neither the Burck nor Hilton parodies is there any specific statement that the “real person” endorsed a product and judges are giving too much latitude to plaintiffs by ignoring that requirement.

Chin did dismiss Burck's publicity rights claim, in part because New York's "privacy statutes were not intended to protect a trademarked, costumed character publicly performed by a person."



Naked Cowboy Sues M&M's
Legal Topics | 2008/06/24 17:24
"This is the case of The Naked Cowboy versus The Blue M&M," afederal judge wrote in allowing The Naked Cowboy's lawsuit against Marscandy and Chute Gerdeman ad agency to proceed. "Plaintiff Robert Burckis a 'street entertainer' who performs in New York City's Times Square,wearing only a white cowboy hat, cowboy boots, and underpants, andcarrying a guitar strategically placed to give the illusion of nudity."He claims Mars & Chute Gerdeman based a Times Square billboard adon his character, "featuring a blue M&M dressed 'exactly like TheNaked Cowboy,' wearing only a white cowboy hate, cowboy boots, andunderpants, and carrying a guitar."

U.S. District Judge Denny Chin kindly attached photos of the two characters at the top of his ruling.

Burck,who has registered The Naked Cowboy as a trademark, claims defendants'animated cartoon ad on two enormous billboards in Times Square violatedhis trademark and his right to publicity.

Chin dismissed thetrademark complaint, finding that New York law "protects the name,portrait, or picture of a 'living person,' not a character created or arole performed by a living person. Burck may proceed, however, with hisfalse endorsement claim, for he plausibly alleges that consumers seeingdefendants' advertisement would conclude - incorrectly - that heendorsed M&M candy."


Supreme Court weighs whales vs war preparation
Legal Topics | 2008/06/24 16:41
The Supreme Court will have the final say on whether war preparation trumps whale protection.

Acting at the Bush administration's urging, the court agreed Monday to review a federal appeals court ruling that limited the use of sonar in naval training exercises off Southern California's coast because of its potential to harm marine mammals.

Sonar, which the Navy relies on to locate enemy submarines, can interfere with whales' ability to navigate and communicate. There is also evidence that the technology has caused whales to strand themselves on shore.

The Navy argues that the decision by the 9th U.S. Circuit Court of Appeals in San Francisco jeopardizes its ability to train sailors and Marines for service in wartime in exchange for a limited environmental benefit. The Navy says it has already taken steps to protect beaked whales, dolphins and other creatures in balancing war training and environmental protections, officials said.



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