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Vermont Lawyer in the National News

The U.S. Senate is going after NFL’s non-profit status, and it’s about time

Tom Coburn Wants To Revoke Sports Leagues’ Tax-Exempt Charity Status

The NFL Is A Tax-Exempt Organization — But One Senator Wants To Change That

Though AT&T no longer offers an “unlimited” data plan, customers who signed up for “unlimited” before the change to tiered plans are grandfathered in and can continue to purchase the unlimited data plan as  previously.  

But a little over a year ago, AT&T decided that “unlimited” doesn’t really mean “unlimited” and began “throttling” data speeds on customers who reach certain data thresholds.

So how does “throttling” work?

Carriers may . . . impose throttling after a user consumes a certain amount of data in one billing period. That first amount may come at full speed, but all data transferred after the limit is reached may be throttled to a slower speed until the end of the billing period.

To me, calling something unlimited, but then imposing limits seems disingenuous.   A truck driver from California sued AT&T in small claims court over limits on unlimited and won.  But at least one commentator thinks unlimited users should stop whining about throttling.  I got the text message warning that I was about to be throttled this Saturday.

Have you been throttled on a grandfathered AT&T unlimited data plan?  If so, please contact me or contact the office.  I’m looking into options and I’d like to hear your story.

Taylor v. Fletcher Allen Health Care, 2012 VT 86

Being a pro ser ain’t easy.

Plaintiff sued Fletcher Allen Health Care (FAHC) for medical negligence and negligent infliction of emotional distress, in connection with her medical care following lumbar-spine surgery.   She didn’t disclose any expert witnesses and so FAHC moved for summary judgment.  The trial court granted the motion on the basis that Plaintiff couldn’t prove her claims without expert testimony.  A somewhat-divided SCOV affirms.

Plaintiff had serious lower-back problems.   She had surgery, which fused part of her lower spine with internal hardware.   She started to recover, but a few days after the surgery she fell in the bathroom and (it seems) injured the surgery site.  Plaintiff blamed her nurse, who she said withdrew support with no warning.  Plaintiff claimed severe pain and that FAHC was unresponsive to her complaints.

Turns out that some of the hardware had come loose.  So Plaintiff had a second surgery, which was successful.  Then she filed suit.  She claimed that FAHC was negligent for: (1) in allowing her to fall onto the toilet; (2) for failing to catch the hardware failure; and (3) for not responding to her pain complaints.  She also alleged emotional distress resulted from FAHC’s negligence.

So FAHC answered and the discovery process began.  Plaintiff filed a proposed discovery schedule with May 1, 2011 as her deadline for expert disclosure.  The court approved the discovery schedule.  Plaintiff did not disclose any experts.  So, FAHC moved for summary judgment, arguing that without expert testimony, Plaintiff’s claims failed as a matter of law.

Plaintiff, more or less, said, “C’mon—this is obvious.  I fell on the toilet ‘cause the other nurse didn’t do her job like the ‘head nurse’ taught her.  This is common-sense stuff.”  Plaintiff also argued that the hospital failed to follow rules and guidelines, and that she didn’t need an expert to prove her case due to the “common-sense exception” to any required expert testimony.

The trial court did not apply the common-sense-exception rule, and granted FAHC’s motion for summary judgment, ruling that “[w]ithout a medical expert, plaintiff cannot prove her case.  The time for disclosure of experts having passed, [FAHC] is entitled to summary judgment.”

On appeal, Plaintiff makes essentially the same argument: this is not rocket science and she shouldn’t need an expert to prove her claims.

As one of my co-authors has previously stated, the SCOV reviews a ruling on summary judgment using the we-do-what-we-want-on-de-novo standard.  Summary judgment is appropriate when (1) there is no genuine issue of material fact, and (2) one of the parties is entitled to judgment as a matter of law.

The SCOV starts its analysis with the “common sense exception.”  The SCOV notes that it has never precisely articulated such a rule, but acknowledges that when something is obvious, then expert testimony might not be necessary.  Now, some might say that the law is the exception to common sense, but that’s another matter entirely . . . .

Back to the matter at hand . . . the SCOV concludes that Plaintiff’s claims can’t be proven without expert testimony.   Plaintiff argued in her opposition that her care was not up to snuff.  That, says the SCOV requires an expert on nursing care.  The SCOV focuses mostly on a gait-belt method for supporting a patient that it seems Plaintiff was arguing should’ve been used.  (We’ll hear more about this in the concurrence and dissent).  The SCOV concludes that “only testimony from an expert familiar with general nursing practices and the details of plaintiff’s medical record would enable a jury to make an informed decision as to whether FAHC breached its duty of care by not using a gait belt in this case.”   The majority concludes that Plaintiff’s gait-belt-support argument—and any theories stemming therefrom— are specific to a certain method and need expert testimony, and the majority so limits its holding.

Regarding the claim that FAHC was negligent in not discovering the faulty hardware, the majority holds that this is a claim that would absolutely require expert testimony for Plaintiff to meet her burden.  Without an expert, Plaintiff is up a certain kind of tributary of a river without a rowing device (so to speak).  The majority notes that Plaintiff has a history of back problems and that the only way to establish medical negligence is through expert testimony.

Plaintiff also alleges a cover-up by FAHC.  The majority notes that this was not raised below, but even with the leeway afforded pro se litigants, and assuming there was a cover up, Plaintiff’s claims would fail without an expert to explain causation.

Finally, the majority rejects Plaintiff’s claim for negligent infliction of emotional distress (NIED) on the basis that if Plaintiff is unable to show negligence, she can’t prove NIED, which requires some underlying negligence.

And so, the majority affirms.

Justice Dooley concurs with the majority on all claims except Plaintiff’s claim that FAHC was negligent when she fell while attended by a nurse.   In Justice Dooley’s words: “The majority transforms a routine hospital-fall case into a complex medical-malpractice action requiring expert evidence on the strength of a pro se litigant’s passing reference to a ‘gait belt.’”

In Justice Dooley’s view, the essential issue is whether the nurse who was helping Plaintiff was lax in attending to the Plaintiff.  Justice Dooley cites several cases that stand for the proposition that a hospital is negligent when an attended patient falls.  He then picks on the majority a little bit, putting quotes around the word “complex” and using the word “multivariate,” which is a pretty fancy word.

Justice Dooley writes: “Under the majority’s analysis, plaintiff’s claim would survive if she never mentioned the gait belt or the head nurse, but fails because she did.”  In Justice Dooley’s view, this claim is far from complicated.  Accordingly, he would reverse.   Justice Robinson joins the concurrence and dissent.

And so it goes.  Ever notice how lawyers can seem to make things incredibly more complicated than they need to be?  Yeah, we actually do have a reason for doing that.

State v. Paro, 2012 VT 53 (mem.)

Why reinvent the wheel?  Here’s how the SCOV frames it: “This case presents a simple set of facts and a single question for review: whether a truck idling in the middle of the night in the parking lot of an auto repair shop that had previously been burglarized is sufficient to give police reasonable and articulable suspicion of criminal activity.”  The SCOV finds that it does not and reverses the trial court. 

In other news, the SCOV does not rule on whether a giant tractor in a police parking lot gives police a reasonable and articulable suspicion of criminal activity.  (Apologies to Roger Pion and the Orleans County Sheriff’s Department.)

Defendant stipulated to the facts as found by the trial court, arguing only that the trial court erred in its application of the law when it denied her motion to suppress.

The Northeast Foreign Cars (NFC) lot had been burglarized seven times over the past 12 years at the time of Defendant’s arrest.  Accordingly, the lot was on a “directive patrol list”—meaning it was an area that patrol officers should keep an eye on.  Are you starting to get an idea of what happened here?

That’s right: a police officer was traveling by NFC and noticed a pickup truck idling in the parking lot.  The police officer thought this was suspicious, as the shop was closed, and he knew about the previous break-ins (the officer had even investigated thefts at the lot a year earlier).  The officer pulled into a nearby motel’s parking lot, started to turn around, and the truck pulled out of the parking lot and headed toward the police officer.  Whoops.

The officer stopped the truck based solely on his suspicion that the driver was up to no good at the NFC lot.  Lo and behold, the driver had been drinking.  She was charged with DUI, and moved to suppress all evidence obtained through the traffic stop under the Fourth Amendment of the United States Constitution and Article 11 of the Vermont Constitution.

The trial court denied the motion, concluding that under the totality of the circumstances, the police officer had a reasonable and articulable suspicion of criminal activity when he stopped Defendant’s vehicle.  The trial court reasoned that the officer’s experience with and knowledge of the earlier break-ins, the truck’s idling in the parking lot in the middle of the night, and that the truck pulled out when the officer started turning around to investigate, gave rise to a reasonable suspicion of wrongdoing.  Sure, there might be a legitimate reason for Defendant to be idling in the parking lot in the middle of the night, but it was just as likely that she “was there for nefarious purposes.”

Accordingly, the trial court distinguished several earlier SCOV “circumstances-failed-to-establish-a-reasonable-and-articulable-suspicion-of-criminal-activity” decisions, concluding that the facts of this case gave “rise to a higher level of particularity.”

Defendant renews her arguments on appeal.  The SCOV notes the standard for a reasonable-and-articulable-suspicion stop, which may be loosely phrased as more than a general suspicion or hunch.  In other words, there has to be reason more specific than “It just didn’t seem right.”

And that’s where this case is going.  The SCOV finds the circumstances most-similar to a 1984 case in which an officer was driving home and saw a car that, more or less, looked out of place.  As in that case, because Defendant was not doing anything illegal or inherently suspicious by idling in a parking lot, the SCOV holds that the officer had no cause to stop her.  The SCOV also finds two other earlier cases similar, but if you want the full analysis, you can read the opinion.  This we will say: if you’re a defense lawyer, and you want to attack a stop, this is your new favorite case.

The SCOV closes with a criminal-defense gem: “We recognize that police officers are trained to be suspicious and it is their job to investigate suspicious situations.  But we must also be mindful of our right to wander where we please, when we please, without fear of a police seizure.”

One should note, however, that such wandering should not be with one’s vehicle across the yellow dividing line of a highway.  That, as you may know, can provide the reasonable and articulable suspicion of wrongdoing found lacking in this case.

Pcolar v. Casella Waste Systems, Inc., 2012 VT 58

Today’s lesson in modified-comparative negligence comes to us courtesy of a Chittenden County jury verdict and my first-year torts class.

In the Unnamed Partner’s heyday, contributory negligence barred recovery if a Plaintiff had any part in bringing about the harm complained of.  As time passed, this was thought too harsh, and so, comparative negligence was born.  Strict comparative negligence means that whatever degree of fault the plaintiff contributed to his or her injuries reduces the plaintiff’s recovery proportionately.  In a modified-comparative-negligence jurisdiction, like Vermont, the Plaintiff can recover only if the plaintiff was half or less at fault; if the plaintiff was more than half at fault, the plaintiff recovers nothing.  There are 49% and 51% rules, and other variations.  But that’s all I can remember from my first-year torts class.  If you have a close case, you should probably look it up.  Getting your legal education from this blawg is like getting your literature from Reader’s Digest: sure, it’s better than nothing, but not much.

This case’s facts and percentages are straightforward.  Plaintiff was helping a friend clean out the friend’s garage.  Plaintiff was cutting cardboard boxes into flat sheets.  In the early afternoon, a garbage truck, owned by Casella, stopped by the building to pick up trash.  The truck had a single gripper arm designed for grabbing trash containers and dumping them into the truck.

Plaintiff asked the driver to take the cardboard and the driver agreed.  The driver told Plaintiff to stack the cardboard horizontally on top of the gripper arm, after which the driver would use the arm to dump the cardboard into the truck.  In the process, some pieces of cardboard fell.  Plaintiff moved in close to the truck to gather those pieces, and though the parties dispute the precise sequence of events, Plaintiff was hit in the arm by the gripper arm.

Plaintiff filed a pro ser suit.  He claimed that the blow from the gripper arm injured his head, arm, neck, shoulder, and back.  He claimed that the driver was negligent.  After a two-day jury trial, the jury was given a comparative negligence instruction.  The jury found Plaintiff 70% at fault, and so, Plaintiff was barred from recovering anything.

Plaintiff appeals on several grounds.  First, he argues that the jury’s verdict was not supported by the evidence.  The SCOV dismisses this argument with little fanfare, reasoning that the jury heard only from driver and Plaintiff, who told conflicting stories, and that it is the jury’s function to resolve conflicting testimony.  Accordingly, the jury’s attribution of 70% of fault to Plaintiff was reasonable.

Plaintiff next argues that because he submitted his 178-page deposition transcript, and the jury was only out for an hour and a half, they couldn’t have considered all the evidence.  The SCOV reasons that there is no requirement that the jury read a transcript verbatim, and that the jury’s deliberation time was reasonable given the nature of the case.  Plaintiff also gave live testimony and was given an adequate opportunity to tell his side of the story, which he in fact did.

Plaintiff next argues that the trial court committed reversible error when it denied his motion to show the jury a garbage truck in the parking lot of the courthouse.  On this point, the SCOV finds no error.  Plaintiff elicited testimony about the arm’s operation from the driver and presented a video of the gripper arm’s operation.  When the judge nixed the parking-lot field trip, it was within the court’s discretion to exclude cumulative evidence under V.R.E. 403.

Plaintiff had moved to compel depositions of eight witnesses, but the court only let him depose three.  This is his next argument on appeal: that the trial court should have let him depose all the requested witnesses.

First, Plaintiff wanted to depose the CEO of the company to show that the CEO offered to pay medical expenses.  As many readers know, V.R.E. 409 prohibits introduction of settlement negotiations to show fault.  Accordingly, because Plaintiff wanted to depose the CEO to preserve inadmissible testimony, there was no error in denying Plaintiff’s motion to compel deposition of the CEO.

Plaintiff’s issues with the denial of his motion to depose Defendants’ counsel is a bit more interesting, as Plaintiff filed a timely motion without the attorney’s name.  When he filed an amended motion, with the attorney’s name, a day late, the motion was denied as untimely.  The SCOV reasons, however, that whether or not the motion was timely, the motion was properly denied.  Plaintiff simply claimed (in his timely 19-page motion) that the attorney had information that he “need[ed] to review prior to other depositions.”  Because the apparent probative value was minimal, the SCOV reasons that there was a good reason under V.R.E. 403 for denying the motion, and moves on to the remaining three witnesses.

The trial court denied the motion to compel depositions of the three remaining witnesses “either because they seek work product . . . or because the court cannot understand what relevance their testimony would have.”  The SCOV notes the low standard Plaintiff had to meet to show relevance, and agrees with the trial court that, for example, deposing folks who had access to the accident reports, would seem to have little probative value.

Plaintiff’s next argument is also discovery-related.  The trial court denied Plaintiff’s “motion to compel disclosure of the recorded interview of the truck driver conducted by the insurance adjuster for Casella’s insurance carrier” as moot when Casella produced a summary of the interview for Plaintiff.  Though the SCOV finds error here—a summary is not the same as a recording—the error is harmless.  This is because the recording was work-product privileged.  It was recorded 20 days after the incident, and Plaintiff contacted the CEO the day after.  Accordingly, the recorded interview would have been prepared in anticipation of litigation and likely within the attorney work-product privilege.  This part of the opinion is worth reading carefully because the SCOV does note the non-absolute nature of the work-product privilege in determining that Plaintiff has not met the “substantial need” standard for production.

Plaintiff had moved to continue the jury draw (one day before it was scheduled) and to delay the trial (a week before the trial).  The first motion was denied because Plaintiff had been “long aware” of the jury draw date.  Plaintiff’s motion to continue the trial was based in part on his alleged hiring of an attorney.  The judge denied the motion because the case had been pending for over two-and-a-half years and the attorney had not filed a notice of appearance.  The SCOV finds both rulings within the trial court’s discretion.

Plaintiff’s next claim is that the trial court erred in admitting evidence and testimony relevant to his previous real estate business and his prior and pending litigation.  SCOV: No objection below, no clear error, and no disturbing the trial court’s evidentiary rulings or lack thereof.

Plaintiff then argues that the Defendants’ opening statement was improper, but he doesn’t get more specific than “false statements . . . during [opposing counsel’s] lengthy remarks.”  Accordingly, the SCOV finds no error.

Plaintiff also sought to limit his own expert’s testimony—specifically, his neuropsychologist’s apparent opinion that Plaintiff was malingering to affect the outcome of his tests.  Who wants that?  Anyway, long story short, the SCOV finds no error.  Plaintiff could have countered the testimony if needed.

Though Plaintiff’s final arguments sound interesting, we just get the executive summary (jury never should have had a comparative instruction; instructions were not clear and concise).  Because Plaintiff had the burden of objecting to the instructions at trial, and failed to do so (see V.R.C.P. 51(b) for you law-review types), the SCOV won’t go there.

And that’s that.

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