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------------------------------------------------------------------------- Randy Cassingham's True Stella Awards for 27 August 2008 ---------------------= http://www.StellaAwards.com =--------------------- JUDGE ACTS WITH SURGICAL PRECISION Federal patent cases can be complex and difficult to decide. When Minnesota-based Medtronic Navigation Inc. sued German competitor BrainLab Medizinische Computersystems Gmbh in a medical instruments patent infringement case, the jury granted Medtronic a $51 million judgment. That's when U.S. District Senior Judge Richard P. Matsch stepped in: he said that Medtronic's lawyers exhibited "cavalier and abusive" misconduct in the "frivolous" case, and their "what can I get away with?" tactics during the 13-day trial were about stifling competition, not patent infringement. "Rather than accept that the [court's patent law] rulings stripped the merits from this case," Matsch said, Medtronic's "counsel chose to pursue a strategy of distorting those rulings, misdirecting the jury to a different reading of the claim language, and blatantly presenting the jury with a product to product comparison contrary to established law and the Court's cautionary instructions." Matsch said the lawyers proceeded "with full awareness that their case was without merit" -- and not only threw the case out, he nullified the jury's award. Medtronic's lawyers appealed, but in February the 10th Circuit Court of Appeals agreed with the judge and upheld the dismissal. But Matsch wasn't finished: armed with the Appeals Court ruling, he ordered that Medtronic's lawyers, Terrance McMahon and Vera Elson of the McDermott, Will and Emery law firm, pay the legal fees that BrainLab incurred in fighting off the suit. That final bill hit $9.9 million. The dispute apparently started in 2004, so the length of this case was about four years. SOURCES: 1) "Judge Makes Lawyers Pay for Frivolity", Denver Post, 25 February 2008 http://StellaAwards.com/cgi-bin/redirect2.pl?104 2) "Recent Decisions on Professional Responsibility", New York Law Journal, 5 March 2008 http://StellaAwards.com/cgi-bin/redirect2.pl?105 -v- I'LL DRINK TO YOUR PERSONAL RESPONSIBILITY Amanda Jax, 21, celebrated her birthday the way many 21-year-olds do: by going out to drink legally. As she partied at a Mankato, Minn., restaurant on October 29, 2007, her friends bought her drinks to celebrate her milestone anniversary. Unfortunately, Jax, who was studying nursing, drank herself to death, with a blood-alcohol content of 0.4594 percent. Whose fault is that? According to Jax's family, her friends are to blame. In February her parents filed suit in Blue Earth County District Court against not only the Sidelines Bar and Grill, which served her, but five of her friends, since Jax was "in the care" of her friends and couldn't care for herself, as she was "an obviously intoxicated person." The suit argues they "created an unreasonable risk of causing physical harm" to their adult friend, and "failed to exercise reasonable care" in preventing harm from coming to her. Jax, the suit says, was "particularly vulnerable and dependent" on her companions, who "held considerable power" over her well being. That's right: she had no duty to protect herself as she slugged down drink after drink, the lawsuit argues; others had that duty. The adult drinker with a medical background isn't responsible for a thing; her friends are. Those two drunk-driving arrests prior to her birthday? Irrelevant! The suit seeks "an amount in excess of $50,000" in damages. Binge drinking is certainly a problem in our society. Yes, as a licensed facility the bar has some liability here. Other than that, drinkers need to be held accountable for their own actions, rather than demanding others to take responsibility for them. SOURCE: "Family Sues Friends Who Partied with Jax", Minneapolis Star Tribune, 28 February 2008 http://StellaAwards.com/cgi-bin/redirect2.pl?106 LIST OF DEFENDANTS: http://StellaAwards.com/cgi-bin/redirect2.pl?107 -v- CASE UPDATE: "Smoke Gets in Your Eyes" (TSA 19 March 2003, and in my book, page 80) The tragic 20 February 2003 fire at the Station Nightclub in West Warwick, R.I., killed 96 people and injured more than 200. It was a stupid stunt: the band playing that night set off fireworks, setting fire to soundproofing foam. With the nightclub's insurance maxed out and no one else to turn to for the expected $1 billion of liability, lawyers in the case sued anyone they could think of in their search for deep pockets to pick. One unlikely victim of the tactic was Clear Channel Communications, which owns a radio station in the area, on the basis that they helped promote the event. In February, Clear Channel announced a tentative $22 million settlement with survivors and the families of those killed. Rhode Island's "joint and several liability" put Clear Channel on the hook; as long as lawyers could show just the tiniest involvement by the company, it ended up having to pay even though they had no part in the fire. Other deep pockets included TV station WPRI, which was ironically on the scene to do a story on the dangers of nightclubs when the fire broke out, which paid $30 million on the theory that their cameraman's equipment blocked an exit. JBL Speakers paid $815,000 to settle a charge that its speakers had flammable foam in them; beer maker Anheuser-Busch ($5 million) and its local distributor ($16 million) because their beer was sold at the nightclub; Sealed Air Corp. paid $16 million, since its foam was used for soundproofing, even though the foam was not rated for such a purpose; the State of Rhode Island, $10 million, and the city where the fire occurred, $10 million, for who-knows-what reason; and Home Depot (amount unknown), where the foam was purchased. There were also criminal charges in the case; the band's manager and the nightclub's owners pleaded guilty and no-contest, respectively, to manslaughter charges. SOURCES: 1) "Clear Channel, Fire Victims OK $22M Deal", Associated Press, 14 February 2008 http://StellaAwards.com/cgi-bin/redirect2.pl?108 2) "The Station Nightclub Fire", Wikipedia, retrieved 27 August 2007 ----------==========**********O**********==========---------- Lawyer on Remote Control MY PET LAWYER: Man's New Best Friend He growls, laughs, says or sings whatever you want (solo, or in a choir of attorneys!) Http://WWW.MYPETLAWYER.COM -- 10% DISCOUNT UNTIL SEPTEMBER 7 ----------==========**********O**********==========---------- COMMENTS AND LETTERS by Randy Cassingham, Publisher When the ad (above) for the "remote control lawyer" came in, I absolutely HAD to see one for real (uh, for approval reasons, don'tcha know!) They indeed sent me one, and it's a hoot: one of the sound slots is recordable, so you can to make it say *anything* you want. Bwah hah hahhhh! Thank you for the many "Welcome back!" e-mails after TSA's recent relaunch. (You can see the two most recent issues on the web site; start at http://www.StellaAwards.com/sample.html -- there's a link on that page to the previous issue, too.) I got a LOT of suggestions on how to publish more (such as getting law students, paralegals, or retired lawyers to write up the case reports), so I guess I didn't explain it well: I already have relaunched the newsletter (last time was the first issue of the new format), and I already have redesigned it so it doesn't overly tax my time: by doing MUCH shorter case write-ups. I've always included links to my source material; now, I just don't get as detailed in my write-ups. If you want more details, you can follow the links to get them. So, at present, I don't need any help with the newsletter, thanks! This week's issue, by the way, includes the "best" cases I collected in February. I hope to be fully caught up by the end of the year so I have a wide assortment of cases to feature in the Finals in January. But I don't want to run any of those letters, or the ones thanking me for not letting some tort reform organization take over TSA. Instead, I want to run this one from Jason in Georgia, and you'll understand why when you read it: ----- I wanted to pass along a message from 11 people and myself who happened to serve jury duty in the case of [a woman] vs. [a fast-food restaurant chain]. Because of my reading of THIS is TRUE and especially The Stella Awards, I was very conscientious about not letting the Plaintiff get away with a frivolous lawsuit regarding a slip and fall personal injury claim that took place in five years ago (but finally went to trial [recently]). The Plaintiff claimed that after (1) having at least four prior falls before the incident, (2) passing over the same floor three times before the fall (thus being familiar with the terrain), and (3) having no medical evidence that her fall led to an alleged back injury, still expected [the restaurant] to pay $34,000 in medical bills and $250,000 in pain and suffering. Even though we found [the restaurant] to be negligent in that they violated their own policy regarding mopping a dinning room floor with a floor cleaner (thus making it potentially slippery) during post-rush hours ... we only awarded the Plaintiff $2,200 to cover her ambulance ride and emergency room visit that day (we added on $500 for pain and suffering as we thought a bruised bottom and ego was worth 'something'). The interesting details that came out after the trial reinforced our belief that justice was served: (1) She was previously taking enough pain killers before the fall that she probably felt very little on that day -- and was probably equally responsible for the fall due to being unsteady on her feet. (2) After the trial, she was witnessed walking to the car -- even though she was paraded around in a wheelchair during the proceedings. (3) The attorneys for [the restaurant] informed some of us that prior attempts to settle the case first at her claim of $20,000 then at $30,000 were met with the 'cost of the injury' being jacked up over a five-year period of time. A few of us jurors did meet with the attorneys afterwards and informed the [restaurant's] attorneys that because they had a policy regarding when and how to mop the floor to prevent such a fall -- and the manager chose to ignore the policy ... we did find them negligent. However, we were not buying the story being fed to us by the Plaintiff because we had heard of other juries awarding ridiculous amounts of money on frivolous lawsuits and didn't want to 'become one of the stories we read about' and think "what were we thinking?" So, thank you for bringing these past frivolous lawsuits to light to help eliminate us and make sure that justice is served rather than receiving another black eye. ----- Now, I want to say that just because there are frivolous lawsuits against fast-food companies, and/or frivolous "slip and fall" cases out there brought by opportunists, doesn't mean the next case you hear about will be frivolous too. But it's nice to know that This is True* and TSA are helping people to think and judge more carefully, and this jury's intuitions, even when certain facts were withheld from them to avoid prejudice, turned out to be right on. I did withhold the names involved because the specifics of this case isn't the point; not feeling sorry for someone and judging on the facts in the case is. "It's a big corporation, they can afford it!" isn't justice, it's theft from the shareholders -- people like you and me who have our pensions invested in them. If a company does wrong, shame on them -- and sure, make them pay; THAT is what lawsuits are for. But the "something for nothing" attitude is wrong and, as I argued in my book ( http://www.StellaAwards.com/book.html ), ordinary people need to take a stand to make things change. Jason in Georgia took that to heart, and he and his fellow jurors improved the situation just a little. Thanks, Jason! * (This is True is my main e-mail publication: http://www.thisistrue.com offers info and free subscriptions; TSA is a TRUE spinoff project. Another little project is a This is True video series; you can see some of my stories -- and see what I look like -- on my YouTube "channel", http://YouTube.com/Thisistrue .) SOCIAL MEDIA LINKS I'm on Twitter: http://twitter.com/ThisIsTrue and Facebook: http://www.facebook.com/people/Randy_Cassingham/514593294 Feel free to "follow" and "friend" me, respectively. -v- TO SUBSCRIBE and receive the TRUE Stella Awards by e-mail for FREE, see http://www.StellaAwards.com TO UNSUBSCRIBE, see the last line of this message. YOUR COMMENTS are welcome -- http://www.StellaAwards.com/contact.html Please include your first name, location and profession. Due to volume we cannot reply to most mail, and NEVER provide legal advice. If you have legal questions, contact an attorney. TO SUBMIT A CASE *please* do NOT e-mail us. Instead, please use the form on our site at http://www.StellaAwards.com/submit.html SOURCE REFERENCES are kept up-to-date on our server as possible; the URLs given should work as long as the articles are available online. Some sites may require registration to view articles. STELLA AWARDS is a project of "This is True" -- http://www.thisistrue.com -- and is published by ThisisTrue.Inc, PO Box 666, Ridgway CO 81432 USA. Copyright 2008 by Randy Cassingham, All Rights Reserved. ALL broadcast, publication, retransmission to the WWW, e-mail lists, or paper, or copying or storage, in any medium, online or not, is PROHIBITED without PRIOR written permission. However, permission is granted to circulate this publication via MANUAL forwarding by e-mail to friends PROVIDING THAT the text is forwarded IN ITS ENTIRETY, from the title line on top through the end of this paragraph, and NO FEE is charged. We REQUEST that you forward no more than three copies to any one person -- after that, they should get their own subscription. Stella Awards is a trademark and "This is True" is a registered trademark of THISisTRUE.Inc. Distribution sponsored by Lyris Technologies, Inc. <http://www.lyris.com>
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