Verdicts

Failure to Argue State Law Claims

After dismissing a detainee's federal constitutional claims seeking redress for failure to render needed medical care, the U.S. District Court for the eastern District of Kentucky declined to exercise supplemental jurisdiction over the plaintiff's related state law claims because the defendants had not answered these to the court's satisfaction. Schulker v. Kenton County, Kentucky, 2013 U.S. Dist LEXIS 6950 (E.D. Ky. 1/17/13).

The plaintiff was arrested and held for just over 24 hours at Kentucky's Kenton County Detention Center on charges related to a domestic violence complaint. Because he suffered from several ailments, including insulin-dependent diabetes, anxiety, hypertension and asthma, the plaintiff took several medications with him to the detention facility. While there, however, he claimed he received only two insulin injections and could not recall being given his other meds. The plaintiff therefore brought a 42 U.S. C. A ' 1983 action against the defendants for denying him adequate medical care during his detention. He also asserted several state law claims.

The detention center's records showed that the plaintiff was given other medications as well as the two insulin shots, and the plaintiff's other evidence of neglect was not persuasive. The court, finding no violation of the plaintiff's rights under the U.S. Constitution, granted the defendants' motion for summary judgment as to the federal claims, but not the state law claims. It noted that the granting of summary judgment on the federal claims rendered the court's jurisdiction over the remaining state law claims solely supplemental under 28 U.S.C. A ' 1367. It further observed that, in accordance with the U.S. Supreme Court's holding in Carlsbad Technology Inv. V. HIF Bio Inc., 556 U.S. 635 (2009), once a district court has dismissed every claim over which it has independent jurisdiction, it may, at its own discretion, exercise jurisdiction over the remaining claims. This the District Court of Kentucky declined to do after concluding that the defendants had not addressed the plaintiff's allegation that they knowingly and intentionally violated several state regulations and statutes. Thus, although the court dismissed the plaintiffs' state law claims, the dismissal was without prejudice pursuant to 28 U.S.C. A ' 1367(c)(3).

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High-Paid Fact Witnesses

New York's high court has held in a personal injury action that although it was error for the trial court not to have instructed the jury that a fact witness may have been overpaid for appearing in court, any prejudice was minimal and the jury's verdict must therefore stand. Caldwell v. Cablevision Systems Corp., No. 19, NYLJ 1202587395820, at *1 (Ct. of App., Feb. 7, 2013) (Opinion by Judge Pigott. Chief Judge Lippman and Judges Graffeo, Read and Smith concur.)

New York's Court of Appeals unanimously upheld a jury verdict in favor of the defendants in a personal injury action. (Although Caldwell did not involve a medical malpractice claim, the state high court's decision could bear on such actions in the future.) The plaintiff claimed she injured her leg falling into a hole dug by the defendant cable company. The defendants called emergency room doctor Barry Krosser to testify as a fact witness in the case. He demanded $10,000 for appearing in court, and the defense paid him that amount. New York's Civil Practice Law & Rules (CPLR) section 8001(a) provides that such witnesses should receive $15 a day and 23 cents a mile for transportation. After the jury found for the defense, the plaintiff appealed, contending the verdict should be overturned because although the trial judge, Westchester County Supreme Court Justice Richard Liebowitz, did allow discussion of the excessive payment during cross-examination and in closing arguments, he did not issue an instruction to the jury asking them to consider whether the payment had influenced the witness.

Writing for the Court of Appeals, Judge Eugene Pigott Jr. noted that it was troubling that Dr. Krosser had been paid such a large amount for minimal testimony. “Such payments, when exorbitant as compared to the amount of time the witness spends away from work or business, create an unflattering intimation that the testimony is being bought or, at the very least, has been unconsciously influenced by the compensation provided,” wrote Judge Pigott. Although he applauded the trial court's decision to permit the plaintiff's attorney to question the doctor's credibility during cross and in closing by citing the high witness fee, Pigott stated, “Supreme Court should have instructed the jury that fact witnesses may be compensated for their lost time but that the jury should assess whether the compensation was disproportionately more than what was reasonable for the loss of the witness's time from work or business.”

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Failure to Argue State Law Claims

After dismissing a detainee's federal constitutional claims seeking redress for failure to render needed medical care, the U.S. District Court for the eastern District of Kentucky declined to exercise supplemental jurisdiction over the plaintiff's related state law claims because the defendants had not answered these to the court's satisfaction. Schulker v. Kenton County, Kentucky, 2013 U.S. Dist LEXIS 6950 (E.D. Ky. 1/17/13).

The plaintiff was arrested and held for just over 24 hours at Kentucky's Kenton County Detention Center on charges related to a domestic violence complaint. Because he suffered from several ailments, including insulin-dependent diabetes, anxiety, hypertension and asthma, the plaintiff took several medications with him to the detention facility. While there, however, he claimed he received only two insulin injections and could not recall being given his other meds. The plaintiff therefore brought a 42 U.S. C. A ' 1983 action against the defendants for denying him adequate medical care during his detention. He also asserted several state law claims.

The detention center's records showed that the plaintiff was given other medications as well as the two insulin shots, and the plaintiff's other evidence of neglect was not persuasive. The court, finding no violation of the plaintiff's rights under the U.S. Constitution, granted the defendants' motion for summary judgment as to the federal claims, but not the state law claims. It noted that the granting of summary judgment on the federal claims rendered the court's jurisdiction over the remaining state law claims solely supplemental under 28 U.S.C. A ' 1367. It further observed that, in accordance with the U.S. Supreme Court's holding in Carlsbad Technology Inv. V. HIF Bio Inc. , 556 U.S. 635 (2009), once a district court has dismissed every claim over which it has independent jurisdiction, it may, at its own discretion, exercise jurisdiction over the remaining claims. This the District Court of Kentucky declined to do after concluding that the defendants had not addressed the plaintiff's allegation that they knowingly and intentionally violated several state regulations and statutes. Thus, although the court dismissed the plaintiffs' state law claims, the dismissal was without prejudice pursuant to 28 U.S.C. A ' 1367(c)(3).

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High-Paid Fact Witnesses

New York's high court has held in a personal injury action that although it was error for the trial court not to have instructed the jury that a fact witness may have been overpaid for appearing in court, any prejudice was minimal and the jury's verdict must therefore stand. Caldwell v. Cablevision Systems Corp., No. 19, NYLJ 1202587395820, at *1 (Ct. of App., Feb. 7, 2013) (Opinion by Judge Pigott. Chief Judge Lippman and Judges Graffeo, Read and Smith concur.)

New York's Court of Appeals unanimously upheld a jury verdict in favor of the defendants in a personal injury action. (Although Caldwell did not involve a medical malpractice claim, the state high court's decision could bear on such actions in the future.) The plaintiff claimed she injured her leg falling into a hole dug by the defendant cable company. The defendants called emergency room doctor Barry Krosser to testify as a fact witness in the case. He demanded $10,000 for appearing in court, and the defense paid him that amount. New York's Civil Practice Law & Rules (CPLR) section 8001(a) provides that such witnesses should receive $15 a day and 23 cents a mile for transportation. After the jury found for the defense, the plaintiff appealed, contending the verdict should be overturned because although the trial judge, Westchester County Supreme Court Justice Richard Liebowitz, did allow discussion of the excessive payment during cross-examination and in closing arguments, he did not issue an instruction to the jury asking them to consider whether the payment had influenced the witness.

Writing for the Court of Appeals, Judge Eugene Pigott Jr. noted that it was troubling that Dr. Krosser had been paid such a large amount for minimal testimony. “Such payments, when exorbitant as compared to the amount of time the witness spends away from work or business, create an unflattering intimation that the testimony is being bought or, at the very least, has been unconsciously influenced by the compensation provided,” wrote Judge Pigott. Although he applauded the trial court's decision to permit the plaintiff's attorney to question the doctor's credibility during cross and in closing by citing the high witness fee, Pigott stated, “Supreme Court should have instructed the jury that fact witnesses may be compensated for their lost time but that the jury should assess whether the compensation was disproportionately more than what was reasonable for the loss of the witness's time from work or business.”

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