Wednesday, February 27, 2008

SCOTUS opinion could potentially create new flood of ERISA suits

Until the decision of the United States Supreme Court in LaRue v. DeWolff, Boberg & Associates, Inc., employee benefit plan participants who sued plan fiduciaries for investment losses in their retirement account faced significant legal hurdles to recovery. In LaRue, an opinion released February 20, 2008, the Court removed most of those hurdles, potentially opening the floodgate to new lawsuits. As fiduciaries of employee benefit plans are personally liable for losses to the plan, this decision represents a significant expansion of the liability faced by fiduciaries.

The fact scenario in LaRue was straightforward: LaRue’s employer offered a 401(k) plan to itsemployees. Plan participants could direct the investments in their individual accounts.According to the allegations, LaRue gave instructions to the plan fiduciary to make changes inthe investment of his individual account. For whatever reason, those instructions were notfollowed. As a result, La Rue’s account was allegedly worth $150,000 less than it would havebeen had his instructions been followed. LaRue sued the plan fiduciary for his investmentlosses.The Employee Retirement Income Security Act (“ERISA”) governs the enforcement of claimsinvolving employee benefit plans.

Since the U.S. Supreme Court’s decision in MassachusettsMutual Life Ins. v. Russell in 1985, a participant’s ability to recover for individual losses due toan alleged fiduciary breach has been significantly limited. In Russell, a plan participant receivedher benefits, but sued the plan fiduciary for damages allegedly resulting from a delay inprocessing her benefit claim. The Court ruled that while ERISA Section 502(a)(2) allowedrecovery for fiduciary breaches damaging the plan as a whole, it did not allow recovery fordamages to an individual participant.

After Russell, unless a disgruntled plan participant couldallege a class-action type of harm, the ability to recover for individual losses appeared severelylimited.In LaRue, however, the Court opened the door for individual participant lawsuits by focusing onthe type of retirement plans at issue: the plan in Russell was a defined benefit plan, and the planassets were not affected by the alleged breach about which the participant complained.

TheLaRue Court reasoned that with a 401(k) plan (a defined contribution plan), an individualparticipant’s account was a part of the plan’s assets, and therefore, investment losses to anindividual account affected the plan.

Tuesday, February 26, 2008

S.C. Supreme Court clarifies Baggerly decision and admission of expert testimony

In Fields v. J. Haynes Waters Builders, the state supreme court revisited the admission of expert testimony. On of the issues at stake was whether the initial inspector of the Fields’ home, was qualified to testify as an expert witness inasmuch as he failed to comply with South Carolina’s home inspection licensing requirements. This gave the Supreme Court a chance to revisit Baggerly v. CSX Transportation, Inc., 370 S.C. 362, 635 S.E.2d 97 (2006), in which the Court rejected the legislature's attempt to require certain professionals to be licensed in SC before they could offer expert testimony.

This case throws an important aspect of our decision in Baggerly into sharp focus. Baggerly properly recognizes that local licensing requirements are arguably inconsistent with Rule 702’s operational framework for expert testimony. Rule 702 does not contain a set of mandatory qualifications that a witness must meet in order to be qualified as an expert. Instead, Rule 702 recognizes that there are a variety of ways in which a person can become so skilled or knowledgeable in a field that their opinion in a scientific, technical, or specialized area can assist the trier of fact in determining a fact or in understanding the evidence. Because a specific licensing requirement is potentially inconsistent with the variety of ways a person may gain specialized knowledge, Baggerly recognizes that a trial court’s decision to refuse to qualify a person as an expert based solely on the failure to meet a licensing requirement arguably impairs the truth-seeking function of courts.

At the same time, however, this Court’s jurisprudence emphasizes the role of the trial court as the gatekeeper in determining both the qualifications of an expert and whether the expert’s testimony will assist the trier of fact. See State v. Council, 335 S.C. 1, 20, 515 S.E.2d 508, 518 (1999). While Baggerly makes it clear that non-compliance with licensing requirements or with the statutory law in specialized areas should not require, a fortiori, a trial court to refuse to qualify a witness as an expert, Baggerly does not stand for the proposition that a trial court should not consider these factors when judging a purported expert’s qualifications. Instead, Baggerly supports the notion that in determining a witness’s qualification as an expert, the trial court should make an inquiry broad in scope. Specifically, the trial court ought to take into account the factors delineated in the rules of evidence, the statutory law, and any other sources of authority that may be relevant to a purported expert witness’s level of skill or knowledge; and the trial court must further determine whether the offered testimony will assist the trier of fact. In this case, the trial courtappears to only have considered the fact that Flaherty did not have the required license from the State of South Carolina. In our view, the trial court cannothave such a solitary focus. Although lack of licensing and violations of statutory law may often coincide with a lack of specialized skill or knowledge, these attributes are not always bedfellows.

In other words, not being licenses is a relevant factor a court can consider, but it is only one piece in the puzzle of expert qualification.

Monday, February 25, 2008

Guilty pleas keep wheels of justice turning

The Greenville News has an interesting article in today's paper about the number of guilty pleas in state court. I know that civil jury trials are becoming rarer, but this appears to be the case for the criminal trial too . Only 89 cases out of 6,800 total criminal defendants in 2007 made it to a jury.

Thursday, February 21, 2008

SCOTUS rules on medical device preemption

The United States Supreme Court, in Riegel v. Medtronic, sided with the majority of the federal circuit courts today, holding that federal law regulating medical devices preempts common law tort actions that would impose different or additional requirements than those approved by the federal Food and Drug Administration (“FDA”). This ruling puts to rest a long running dispute over whether there is federal preemption for medical device product liability lawsuits, but may have opened the way for an even longer dispute on the scope of that preemption.

Affirming the Second Circuit, the Supreme Court held that FDA premarket approval of a medical device under the Medical Device Amendments of 1976, 21 U.S.C. § 360(k), precludes common law claims challenging the safety or effectiveness of the medical device. The Court agreed with Medtronic that obtaining the FDA’s safety and efficacy approval pursuant to stringent premarket approval process established certain federal requirements for the medical device. The Court held that common claims based upon different or additional requirements were preempted by the Medical Device Amendments of 1976.

Justice Scalia, who delivered the opinion of the Court, broadly confirmed federal preemption for any state law requirements different from or additional to those imposed by the FDA on approved medical devices. The Court specifically declined to adopt a more narrow view (once espoused by the FDA but now abandoned) that the statute only preempted requirements specific to medical devices, not requirements of general applicability to all types of products.

Curative instructions and mistrial motions

In State v. Ferguson, Ferguson was convicted of murder and possession of a firearm during the commission of a violent crime. During the second day of trial, in response to a question about Ferguson’s behavior at the time of the shooting, Ferguson's Girlfriend responded that Ferguson allegedly told her she “was next.” Defense counsel asked the court to strike Girlfriend’s response as unresponsive to the question asked. Ferguson’s counsel requested a mistrial, contending the court should strike Girlfriend’s answer because the State did not notify the defense, in writing and during discovery, about Ferguson’s alleged statement. The court sustained Ferguson’s objection, ruling Girlfriend’s answer to the solicitor’s question was unresponsive. However, the court denied Ferguson’s motion for a mistrial, finding a curative instruction to the jury would overcome any potential prejudice to Ferguson. The Court of Appeals affirmed the denial of the mistrial motion.

We find the trial court properly exercised its discretion in deciding to give a curative instruction rather than granting Ferguson’s motion for a mistrial. We additionally find the court cured any potential prejudice to Ferguson with its instruction to disregard Girlfriend’s response to the question posed by the solicitor. Here, as in Edwards, the trial court’s curative instruction was simple, and the court refrained from reiterating or emphasizing the unresponsive answer. Accordingly, we find the instruction cured any potential prejudice, and we hold the trial court properly exercised its discretion in denying Ferguson’s motion for a mistrial.

This seems like a close call. On a statment such as "you are next," if that was not supposed to come in, I don't see how a curative instruction does any good at all. There is no way to put the genie back in the bottle. The court should have granted the mistrial motion.

Wednesday, February 20, 2008

SCOTUS to reconsider the exclusionary rule

The Supreme Court agreed Tuesday to reconsider the reach of the "exclusionary rule," a doctrine that has been controversial since the 1960s because it requires judges to throw out evidence if it was obtained improperly by the police.

The precise question presented is: "Whether the Fourth Amendment requires evidence found during a search incident to an arrest to be suppressed when the arresting officer conducted the arrest and search in sole reliance upon facially credible but erroneous information negligently provided by another law enforcement agent."

This should be a fun one to watch. The case is Herring v. United States, No. 07-513.

Tuesday, February 19, 2008

SCOTUS declines to hear domestic spying case

From Reuters:

The Supreme Court on Tuesday turned down a legal challenge to the warrantless domestic spying program President George W. Bush created after the September 11 attacks.
The American Civil Liberties Union had asked the justices to hear the case after a lower court ruled the ACLU, other groups and individuals that sued the government had no legal right to do so because they could not prove they had been affected by the program.

Department of Justice meets with Fountain Inn Police

From the Greenville News:

A U.S. Department of Justice representative who specializes in mediating racial and ethnic conflicts met behind closed doors Monday night with Fountain Inn officials and members of the community to address complaints about the city's police.

Fountain Inn Mayor Gary Long said "a lot" of members of the community as well as he and the city's police chief attended the mediation session, which came after the death of an inmate in the city's jail last year.

Monday, February 11, 2008

Light Blogging This Week

I'll be out in the field meeting with clients and interviewing witnesses for a 2255 case I am working on.

Check back next week for more posts.

Memo to self: Don't help any of your criminal clients escape


An attorney charged with smuggling a 14-inch saw blade to a jailed client was sentenced to five years in prison Thursday, although nearly one year will be subtracted because the lawyer has been jailed since his arrest last February.

Albany, Ga., attorney William P. Keenan was representing Dareon Varner against charges of armed robbery, aggravated assault and possession of a firearm during the commission of a felony when, last Feb. 22, the lawyer slipped Varner the blade. According to Keenan's indictment, he first gave Varner a photo of the blade, then later supplied the actual weapon to the inmate, who was later caught with the blade and a diagram of the outside area of the jail.

Thursday, February 07, 2008

State House Judiciary Committee declines to organize a commission to study the "Orangeburg Massacre"

From the Greenville News:

The Judiciary Committee Chairman, Rep. Jim Harrison, a Columbia Republican, told The Greenville News, "My personal feeling is we don't need to create something that is going to create more division."

Harrison added, "Unless I heard from a broad range of people within the House that this is good for uniting us instead of dividing us, then I'm not inclined to be supportive.

Wikipedia provides this summary of the Orangeburg Massacre:

In the days leading up to February 8, 1968, around 200 protesters had gathered on the campus of South Carolina State University (located in the city of Orangeburg) to protest the segregation of All Star Bowling Lane (now called All-Star Triangle Bowl), on US 301, now SC 33). The bowling alley was owned by the late Harry K. Floyd. Students continued their days of protesting by starting a bonfire. As police attempted to put out the fire, an officer was injured by a thrown piece of banister, according to an article in Nieman Reports at Harvard University.

The police believed they were receiving small weapons fire during the incident. Protesters insist that they did not fire at police officers, but did hurl various objects (and insults) at the police. Evidence that police were being fired on was inconclusive, and there is no evidence that protesters were armed or had fired on officers.

The officers responded by firing into the crowd, killing three young men, Samuel Hammond, Delano Middleton, and Henry Smith, and wounding 27 others. Henry Smith and Samuel Hammond were SCSU students; Delano Middleton, a local high school student, was seventeen.

Tuesday, February 05, 2008

Fourth Circuit holds that a knowing waiver to jury trial is not dependent upon a good attorney-client relationship

In United States v. Boynes, Boynes argued that he "could not have" knowingly, intelligently and voluntarily waived his right to a jury trial because his relationship with his attorney was "characterized by adversarial contentious interactions." The Fourth Circuit rejected this argument.

A knowing, intelligent, and voluntary waiver and contentiousattorney-client interactions are not mutually exclusive. Although there are no doubt circumstances calling into question the validity of a jury waiver that would require reversal if not sufficiently resolved by the district court, that is certainly not the case here. On this record we are presented with a presumptively valid written waiver, a full hearing on the validity of the waiver in open court, and a judicial finding that the waiver is knowing, intelligent, and voluntary. The district court noted there is "no evidence" that Everhart filed the motion to waive jury trial without Boynes’ consent.

Monday, February 04, 2008

Bill proposes change in SC drinking age for solidiers

State Rep. Fletcher Smith, D-Greenville, is trying to jar loose from a House subcommittee a bill that would exempt military personnel ages 18 to 20 from the state's minimum age for purchasing and possessing alcoholic beverages of 21.

"It treats our military personnel like the adults and heroes we say they are," Smith said. "If you can take a shot on the battlefield, you ought to be able to take a shot in a bar."

The Greenville News has this story.

John McCain and Judicial Nominations

Stephen Calabresi and John McGinnis have this op-ed in the WSJ. Here is a snippet:

We believe that the nomination of John McCain is the best option to preserve the ongoing restoration of constitutional government. He is by far the most electable Republican candidate remaining in the race, and based on his record is as likely to appoint judges committed to constitutionalism as Mitt Romney, a candidate for whom we also have great respect.

We make no apology for suggesting that electability must be a prime consideration. The expected value of any presidential candidate for the future of the American judiciary must be discounted by the probability that the candidate will not prevail in the election. For other kinds of issues, it may be argued that it is better to lose with the perfect candidate than to win with an imperfect one. The party lives to fight another day and can reverse the bad policies of an intervening presidency.

Friday, February 01, 2008

Judge John Kittredge vows restraint as justice

From the Greenville News:

Kittredge said today that he "was grateful to God for the opportunity" and that he would ensure that he would honor what called the necessary judicial restraint required of a Supreme Court justice.

"The two finest qualities in a judge are humility and restraint," he said. "I believe very strongly in the rule of law and following the law instead of creating it from the bench on a case-by-case basis. I believe adjudicators ajudicate and legislators legislate. I think judges should not cross the line from adjudication to legislation."

Congratulations to Judge Kitteredge on his election.