... and Justice for All: lawsuit procedures

lawsuit procedures

June 02, 2017

Does a Malicious Prosecution Claim Exist after Rehberg? The Sixth Circuit Defines the Contours of Immunity

The Supreme Court ruled in Rehberg v. Paulk, 566 U.S. 356 (2012), there is absolute immunity for any grand jury witness, law enforcement or otherwise, from any civil action derived from their grand jury testimony, even if the grand jury testimony was knowingly or recklessly false or even where law enforcement officers have "conspired to present false testimony." This is, as some courts have observed, a harsh result and the Sixth Circuit questioned in Sanders v. Jones, 845 F3d 721 (6th Cir. 2017), "whether malicious prosecution remains a viable claim" after Rehberg in light of the difficulty it creates of overcoming the presumption of probable cause created by an indictment. The Sixth Circuit Squarely answered the question recently in King v. Harwood.

The Sixth Circuit concluded that malicious prosecution remains a viable claim even where there has been a grand jury indictment but only in the most limited of circumstances:

We hold that where (1) a law-enforcement officer, in the course of setting a prosecution in motion, either knowingly or recklessly makes false statements (such as in affidavits or investigative reports) or falsifies or fabricates evidence; (2) the false statements and evidence, together with any concomitant misleading omissions, are material to the ultimate prosecution of the plaintiff; and (3) the false statements, evidence, and omissions do not consist solely of grand jury testimony or preparation for that testimony (where preparation has a meaning broad enough to encompass conspiring to commit perjury before the grand jury), the presumption that the grand jury indictment is evidence of probable cause is rebuttable and not conclusive.

Truth, the Sixth Circuit recognizes, is an arrow and very narrow is the gate it passes through. There will be very, very few malicious prosecution cases that can surmount these hurdles.

We've discussed King v. Harwood in prior posts: The Strange Case of King v. Harwood; An Alford Plea Does Not Bar a Later Malicious Prosecution Claim, Sixth Circuit Rules.

Robert L. Abell
www.RobertAbellLaw.com

Posted by Robert Abell on June 02, 2017 in criminal justice, federal courts, Fourth Amendment, justice system, lawsuit procedures, Sixth Circuit | Permalink | Comments (0)

Tags: absolute immunity, Malicious prosecution, Rehberg v Paulk, Sixth Circuit

January 30, 2017

Does Rule 17 Apply in Supervised Release Revocation Proceedings?

Defendants facing supervised release revocation have a due process right that includes an "opportunity to be heard in person and to present witnesses and documentary evidence." Morrissey v. Brewer, 408 U.S. 471, 489 (1972). Put even better by the Ninth Circuit, the right requires "that a supervised releasee receive a fair and meaningful opportunity to refute or impeach the evidence against him in order to 'assure that the finding of a [supervised release] violation will be based on verified facts.'" United States v. Martin, 984 F.2d 308, 310 (9th Cir. 1993), quoting Morrissey, 408 U.S. at 484.

This due process right can be fulfilled by utilizing the subpoena powers under Fed.R.Crim.Pro. 17. Courts have found that Rule 17 subpoenas can be used for post-trial motions and sentencing. See U.S. v. Winner, 641 F.2d 825, 833 (10th Cir.1981) (“Although Rule 17 subpoenas are generally employed in advance of trial, we see no reason why their use should not be available for post-trial motions and sentencing.”); U.S. v. Boender, 2010 WL 1912425 *1 (N.D.Ill.2010) (“Although the structure of the federal rules as well as Rule 17's plain language suggest that the rule was meant to apply only before trial, courts have held that Rule 17 affords parties the ability to subpoena evidence for post-trial matters.”); see also U.S. v. Reaves, 194 F.3d 1315, 1999 WL 824833 (6th Cir.1999) (unpublished) (applying Rule 17 in the context of a sentencing hearing); 2 Wright & Miller, Federal Practice & Procedure § 272 (4th ed. 2011) (Rule 17 is not limited to subpoenas for the trial. A Rule 17 subpoena may be issued for a preliminary examination, a grand jury investigation, a deposition, for a pre-trial motion, and for a post-trial motion.); United States v. Reid, No. 10-20596, 2011 WL 5075661, at *2 (E.D. Mich. Oct. 26, 2011).

Robert L. Abell
www.RobertAbellLaw.com

Posted by Robert Abell on January 30, 2017 in criminal justice, federal courts, lawsuit procedures | Permalink | Comments (0)

Tags: due process, Morrissey v Brewer, subpoena, supervised release

January 29, 2017

Due Process Rights In Supervised Release Revocation Hearings

The Supreme Court ruled long ago that a defendant in probation or parole revocation proceedings had due process rights that would include the "opportunity to be heard in person and to present witnesses and documentary evidence." Morrissey v. Brewer, 408 U.S. 471 (1972). The Court admonished that the process right was not static, fixed or categorical: "It has been said so often by this Court and others as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands ... not all situations calling for procedural safeguards call for the same kind of procedure." The various circuits have all recognized that the Morrissey due process rights apply in supervised release revocation proceedings and are codified at Fed.R.Crim.Pro. 32.1.

So Morrissey sets a general rule but really how far does it go for a defendant facing revocation of supervised release. There is not a lot of caselaw out there that puts, so to speak, any meat on the bones. Perhaps the best articulation comes from the Ninth Circuit in United States v. Martin, 984 F.2d 308, 310 (9th Cir. 1993): "We construe that right as requiring that a supervised releasee receive a fair and meaningful opportunity to refute or impeach the evidence against him in order 'to assure that the finding of a [supervised release] violation will be based on verified facts.'" In Martin, the Ninth Circuit vacated a supervised release revocation because the district court denied the defendant's request that his urine sample be retested.

The Seventh Circuit in United States v. Pierre, 47 F.3d 241 (7th Cir. 1995), and the Fifth Circuit in United States v. McCormick, 54 F.3d 214 (5th Cir. 1995), both indicated that a defendant "is entitled to go beneath the surface of written reports." Both courts indicated that defendants could and should seek information and documentation regarding a lab's error rates, efforts to improve procedures and other information bearing on the reliability and accuracy of the reports they produce.

Robert L. Abell
www.RobertAbellLaw.com

Posted by Robert Abell on January 29, 2017 in criminal justice, federal courts, justice system, lawsuit procedures | Permalink | Comments (0)

Tags: due process, Morrissey v Brewer, supervised release

September 23, 2016

Malicious Prosecution Claims in Kentucky; The Supreme Court Refines the Tort's Elements

Malicious prosecution claims are among the oldest of tort claims under Kentucky law; the law reports discuss them nearly all the way back to when Kentucky became a state. See Frowman v. Smith, 16 Ky. 7 (Ky. 1800): "A person discharged from a prosecution for felony, without a trial on the merits, cannot, in an action for malicious prosecution, require proof of probable cause, until he shows express malice."

The two centuries plus since had befogged the tort's elements, and the Kentucky Supreme Court has now refined them in Martin v. O'Daniel, advising as follows:

(1) the defendant initiated, continued, or procured a criminal or civil judicial proceeding, or an administrative disciplinary proceeding against the plaintiff;

(2) the defendant acted without probable cause;

(3) the defendant acted with malice, which, in the criminal context, means seeking to achieve a purpose other than bringing an offender to justice; and in the civil context, means seeking to achieve a purpose other than the proper adjudication of the claim upon which the underlying proceeding was based;

(4) the proceeding, except in ex parte civil actions, terminated in favor of the person against whom it was brought; and,

(5) the plaintiff suffered damages as a result of the proceeding.

The Court added further that "procuring" a criminal or civil judicial proceeding means the same as "being the proximate and efficient cause of putting the law in motion against another person."

The Court's decision was 5-2; Justice Daniel Venters authored the majority opinion joined by Chief Justice John Minton, Justices Mary Noble, Elisabeth Hughes and Samuel Wright; Justice Bill Cunningham "forcefully" dissented and was joined by Justice Michelle Keller.

Robert L. Abell
www.RobertAbellLaw.com

Posted by Robert Abell on September 23, 2016 in justice system, lawsuit procedures | Permalink | Comments (0)

Tags: Justice Venters, Kentucky Supreme Court, malicious prosecution

May 22, 2016

Does an Employer's Ratification Require Explicit Affirmation or Endorsement?

St. Joseph Healthcare v. Thomas is a shocking and outrageous case: a hospital twice ejected a very sick and very poor man from its emergency room, threatening him with arrest if he returned and the man died. A jury awarded the man's estate $25,000 in compensatory damages and $1,450,000 in punitive damages.

The hospital corporation argued to the Kentucky Supreme Court that it had not "ratified the conduct of the emergency room personnel underlying the punitive damages award," since KRS 411.184(3) prohibits punitive damages against an employer based on an employee's conduct unless the employer (1) authorized the conduct, (2) anticipated the conduct, or (3) ratified the conduct. The Court rejected the corporation's argument but gave an extended analysis of ratification law including the following:

an employer cannot be regarded as having ratified the wrongful conduct of its employees and agents simply by denying that wrongful conduct occurred or by mounting a legal defense against actual or anticipated lawsuits arising from the conduct;
"we reject the Hospital's argument that an employer's ratification ... can only be established by the employer's explicit affirmation or endorsement of the wrongful behavior."
"In order that the ratification may be effective, there must be an intention to ratify, although the intention may be inferred from the facts and circumstances."
ratification of the unauthorized acts of one assuming to act as agent may be either express or implied
An employer's ratification of an employee's offensive conduct requires two elements: 1) an after-the-fact awareness of the conduct; and 2) an intent to ratify it.

This case is an important and impressive analysis of the role and purpose of punitive damages under Kentucky law. We've also discussed it on RobertAbellLaw.com: What is the purpose of punitive damages under Kentucky law?

Robert L. Abell
www.RobertAbellLaw.com

Posted by Robert Abell on May 22, 2016 in corporate accountability, justice system, lawsuit procedures | Permalink | Comments (0)

Tags: Kentucky Supreme Court, punitive damages, ratification

March 21, 2016

The Business of Trial Courts: Ruling on Document Delivery Motions Not Delivering Documents

Sometimes the best intentions of a trial court judge lead astray; so it was for Jefferson Circuit Judge Barry Willett in Norton Hospitals, Inc. v. Willett.

The underlying case was a medical malpractice case arising from the birth of a child with brain damage and quadriplegia. The plaintiff sought to compel production of certain post-occurrence and peer review documents, which the hospital claimed were not discoverable pursuant to federal law. Judge Willett reviewed the documents in camera and ordered them produced. The day after the order was entered the hospital sought a writ of prohibition from the Court of Appeals. In response, the plaintiff sought and obtained an emergency hearing from the trial court, the purpose of which, the Supreme Court emphasized, "was to determine if a nurse's deposition scheduled for the following day could proceed as scheduled." There was some urgency to complete the deposition, because the nurse was 7.5 months pregnant and a delay likely would prove protracted. The trial court ruled both that the deposition should go forward and that the documents should be delivered, a matter that the trial judge then "literally took matters into its own hands and handed the copies of the disputed documents Norton had submitted for in-camera review directly to counsel for the Estate, in open court and on the record." The Court of Appeals later dismissed Norton's writ petition as moot.

The Kentucky Supreme Court in an unanimous opinion authored by Chief Justice John Minton was more than a little critical of the trial court judge, observing:

"the trial court, in essence, waived Norton's claim of privilege by literally providing the Estate with the documents claimed to be privileged.
"the trial courts are 'not in the document delivery business; instead, they are in the business of ruling on document delivery motions. The responsibility of produce documents lies with the parties and the parties alone."
"Best practice dictates that when a trial court 'conducts in camera review of documents, determines that production is appropriate and so orders, it should, as a matter of course, provide the party who submitted the documents for in-camera review an opportunity to comply with the court's order or stand in contempt."
"The trial court simply cannot participate itself in discovery and produce documents that a party alleges are privileged in the face of a writ challenging the trial court's determination that they are privileged."

The Court concluded that the Court of Appeals abused its discretion when punting on the case on mootness grounds and remanded for further consideration and, at least implicitly, inviting a creative remedy.

Robert L. Abell
www.RobertAbellLaw.com

Posted by Robert Abell on March 21, 2016 in hospitals, justice system, lawsuit procedures, medical malpractice | Permalink | Comments (0)

Tags: Chief Justice Minton, Judge Willett, Kentucky Supreme Court, writ of prohibition

September 25, 2015

Because They Just Can't Help Themselves; Why Would the Defense Argue that a Decision Benefiting it was Incorrect?

The Kentucky Supreme Court's recent decision in Banker v. University of Louisville Athletic Association was notable and helpful in at least two respects: emphasizing the role of the jury not an appellate court to find facts and dispelling the mistaken notion that expert medical or scientific evidence was necessary to sustain a claim for emotional distress damages in an employment discrimination or retaliation case, a point we discussed on the Kentucky Employment Law Blog, Does Kentucky Require Expert Medical or Scientific Testimony to Support A Claim for Emotional Distress Damages in an Employment Discrimination or Retaliation Case? and on the website, Proving Emotional Distress Damages In Employment Discrimination & Retaliation Cases - Is Expert Medical or Scientific Proof Necessary?

Banker also called upon the Court to address an award of attorney's fees to the plaintiff's lawyer, Bryan Cassis, who is to be applauded for the perseverance and skill displayed in this case. Although Cassis submitted a attorney's fee petition documenting 678.75 hours worked on the case, the lawyers for the University of Louisville Athletic Association, Craig Dilger and Jeffrey Calabrese, argued that this amount of time was excessive, a point that seems surprising coming from lawyers who spent nearly twice as much time ("approximately 1300 hours") on the case as did Cassis and lost it. But the defense did not stop there.

Cassis had argued to the trial court that the attorney's fees award should be increased because the case was a contingent fee case. The trial court rejected the argument. Nevertheless, having won the issue and apparently not able to help itself, the defense argued on appeal that the trial court had erred. This confused the Supreme Court who remarked:

ULAA's third argument is somewhat confusing. The trial court did, as ULAA notes, look to what a reasonable contingent fee would be in this situation. However, the court did not do so to determine the lodestar amount or to deny ULAA's request for a downward adjustment. It did so as justification for denying Cassis's request for an upward amendment in the lodestar amount, which benefitted ULAA. We are not certain why ULAA is arguing that a decision from which it benefitted was incorrect; however, regardless of ULAA's reasons for making this argument, it is not persuasive.

Indeed, it is confusing why a party would argue against a ruling that benefitted it. But sometimes the defense just can't help themselves.

Robert L. Abell
www.RobertAbellLaw.com

Posted by Robert Abell on September 25, 2015 in attorneys fees, expert witness, lawsuit procedures | Permalink | Comments (0)

Tags: attorney's fees, Banker v ULAA, discrimination, Kentucky Supreme Court, retaliation

June 24, 2015

Malicious Prosecution and Deprivation of Liberty

An element of a Fourth Amendment malicious prosecution claim is a "deprivation of liberty" apart from the individual's initial arrest. But what is that liberty? The Sixth Circuit's recent decision in Webb v. United States addressed that question in an interesting and unusual context, while establishing a rule that the "liberty" at issue is freedom from wrongful government conduct.

The plaintiffs, Webb and Price, were framed by a corrupt drug investigation involving state, local and federal agencies in the Mansfield, Ohio area. Price, however, at the same time he was being framed, was apparently conducting some drug trafficking activities; a search pursuant to a state court warrant issued the day after Price's federal indictment recovered drugs and weapons from his residence, and he pleaded guilty to state drug charges. He eventually pleaded guilty to state court charges. Later, it was revealed that the federal investigation had framed him through the fabrication of evidence; he brought a malicious prosecution claim as did Webb, who had been framed similarly.

The district court dismissed Price's malicious prosecution claim holding first that he lacked standing to bring the claim, since his state court prosecution, which was based on sound evidence, effected a liberty deprivation for which he could not seek redress by way of a malicious prosecution claim.

The Sixth Circuit most emphatically reversed on the standing issue and explained as follows:

... every inmate in state and federal prisons is serving a term of imprisonment following conviction for an offense. Under the district court's reasoning, each of these inmates would also have forfeited all of his Fourth Amendment rights regarding false imprisonment and malicious prosecution, and the government would have free rein to frame any of the for any other crime. Neither precedent nor common sense supports this outcome. While inmates have a diminished expectation of privacy, they retain their Fourth Amendment right to be free from searches and seizures that are objectively unreasonable in light of those diminished expectations. Because it is objectively unreasonable to frame an inmate, we reverse the district court's judgment and hold that Price properly alleged that he suffered an injury-in-fact when government agents allegedly framed and maliciously prosecuted him for a crime he did not commit.

The district court reasoned that Price was already in custody because of the admittedly valid state court charges, and, as a result, could not suffer any further deprivation of liberty that would be an injury-in-fact. "Liberty" in this context -- it must follow from the Sixth Circuit's ruling -- means something other than physical confinement. The "liberty" must be an immunity from being in fact framed and maliciously prosecuted for a crime one did not commit; put another way, the "liberty" is a freedom from such blatant and wrongful government misconduct.

Judge Danny Boggs wrote the Sixth Circuit's opinion and was joined by Circuit Judge Eric Clay and Senior Circuit Judge Eugene Siler.

Robert L. Abell
www.RobertAbellLaw.com

Posted by Robert Abell on June 24, 2015 in federal courts, justice system, lawsuit procedures, Sixth Circuit | Permalink | Comments (0)

Tags: malicious prosecution, Sixth Circuit

August 06, 2014

"If You Know" -- Deposition Objections That Coach the Witness's Answer

"If you know" or some variation thereof is a frequently-used objection (actually a caution) at a deposition where the defending lawyer warns the witness that they shouldn't answer the question and offers the witness a way out of answering it. Such interjections are raw, unmitigated coaching and are never appropriate.

U.S. District Judge Mark Bennett illustrated the wholly improper use of this tactic in a recent opinion where he sua sponte sanctioned a lawyer from the Jones Day firm for repeatedly making this specious interjection. Judge Bennett's opinion came in a products liability case alleging that tainted baby formula made by Abbott had caused permanent brain damage to an infant, Security National Bank of Sioux City, Iowa v. Abbott Laboratories, No. 11-4017-MWB. The lawyer's "if you know" interjections were as follows:

Q: Are these the ingredients that are added after preparation or after pasteurization?

Counsel: If you know. Don't guess.

A: If you could rephrase the question. There's no ingredients on 28.

Counsel: So you can't answer the question.

* * *

Q: If it is high enough to kill bacteria, why does Abbott prior to that go through a process of pasteurization?

Counsel: If you know, and you're not a production person so don't feel like you have to guess.

A: I don't know.

* * *

Q: Does it describe the heat treatment that you referred to a few moments ago, the heat treatment that occurs in the dryer phase?

Counsel: Okay. Do you know his question? He's asking you if this is what you are describing.

A: Yeah, I don't know.

* * *

Q: ... Is there any particular reason that that language is stated with respect to powdered infant formula?

Counsel: If you know. Don't -- if you know.

A: No, I -- no, not to my knowledge.

Counsel: If you know. I mean, do you know or not know?

A: I don't know.

And here is Judge Bennett's apt description of these tactics:

When a lawyer tells a witness to answer "if you know," it not-so-suddenly suggests that the witness may not know the answer, inviting the witness to dodge or qualify and otherwise clear question. For this reason, "instructions to a witness that they may answer a question 'if they know' or 'if they understand the question' are raw, unmitigated coaching, and are never appropriate.

I couldn't have said it better myself.

Judge Bennett's sanctions opinion was discussed in a previous post: Deposition Objections - Improperly Coaching the Witness.

Robert L. Abell
www.RobertAbellLaw.com

Posted by Robert Abell on August 06, 2014 in justice system, lawsuit procedures | Permalink | Comments (0) | TrackBack (0)

Tags: coaching the witness, deposition, Jones Day, Judge Bennett

August 04, 2014

Deposition Objections - Improperly Coaching the Witness

How often have lawyers at a deposition faced "objections" by their opposing counsel which are little if nothing more than thinly-veiled cues to the witness to respond to the question in a particular way. U.S. District Judge Mark W. Bennett, one of the Nation's most interesting and thoughtful district judges, concluded recently that enough is enough and imposed sua sponte sanctions on the Jones Day law firm for their misconduct of one of its attorneys in a deposition. Interestingly, the sanctions followed a trial in which Jones Day defended successfully Abbott Laboratories and a products liability case alleging that tainted baby formula made by Abbott had caused permanent brain damage to her infant. The case is reported as Security National Bank of Sioux City, Iowa v. Abbott Laboratories, No. 11-4017-MWB.

Judge Bennett recites the following "clarification-inducing" objections as coaching the witness:

Q: Is there – do you believe that there is – if there is any kind of correlation that could be drawn from OAL environmental samples to the quality of the finished product?

Counsel: Objection; vague and ambiguous.

A: That would be speculation.

Q: Well, if there were high numbers of OAL, Eb samples in the factory, would not that be a cause of concern about the microbiological quality of the finished product?

Counsel: Object to the form of the question. It is a hypothetical; lacks facts.

A: Yeah, those are hypotheticals.

...

Q: Would that be a concern of yours?

Counsel: Same objection.

A: Not going to answer.

Q: You're not going to answer?

A: Yeah, I mean, it's speculation. It would be guessing.

Counsel: You don't have to guess.

Here, the questioning plaintiff's lawyer is asking simply if (a) certain environmental sample readings could correlate to the product's quality, or if not that much then (b) could those environment samples could raise concerns about the product's quality. These are, as Judge Bennett, notes "completely reasonable questions" to a knowledgeable witness.

There will be additional postings about these bad-faith deposition objections, one of my pet peeves. I invite others to share their experiences.

Robert L. Abell
www.RobertAbellLaw.com

Posted by Robert Abell on August 04, 2014 in justice system, lawsuit procedures | Permalink | Comments (0) | TrackBack (0)

Tags: deposition, discovery, Jones Day, Judge Bennett, sanctions

... and Justice for All

Continuing comment and review of issues, events and legal developments affecting individuals and families by Lexington, Kentucky lawyer Robert Abell

lawsuit procedures

June 02, 2017

Does a Malicious Prosecution Claim Exist after Rehberg? The Sixth Circuit Defines the Contours of Immunity

January 30, 2017

Does Rule 17 Apply in Supervised Release Revocation Proceedings?

January 29, 2017

Due Process Rights In Supervised Release Revocation Hearings

September 23, 2016

Malicious Prosecution Claims in Kentucky; The Supreme Court Refines the Tort's Elements

May 22, 2016

Does an Employer's Ratification Require Explicit Affirmation or Endorsement?

March 21, 2016

The Business of Trial Courts: Ruling on Document Delivery Motions Not Delivering Documents

September 25, 2015

Because They Just Can't Help Themselves; Why Would the Defense Argue that a Decision Benefiting it was Incorrect?

June 24, 2015

Malicious Prosecution and Deprivation of Liberty

August 06, 2014

"If You Know" -- Deposition Objections That Coach the Witness's Answer

August 04, 2014

Deposition Objections - Improperly Coaching the Witness

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