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September 2004
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November 2004

D.C. Consumer Protection Act Held Not To Apply Where Plaintiff Purchased Item On Ebay In Order To Resell It

There is a recent pro-defense decision on the D.C. Consumer Protection Act, albeit only from a Magistrate Judge of the Superior Court.

In Nicely v. Jones, No. 9270-03 (D.C. Super. Ct. May 28, 2004), Magistrate Judge Ronald A. Goodbread held that the plaintiff, who purchased a fifty-dollar automatic stapler on eBay, was not entitled to claim damages due to the defective condition of the stapler under the D.C. Consumer Protection Act because (1) the plaintiff was not complaining of "illegal trade practices"; and (2) he was not a "consumer as defined in D.C. Code sec. 28-3901(a)(2). The plaintiff did not purchase the stapler for his personal use, but instead to resell it. Merchants are excluded from the protections of the CPA.

The plaintiff had sought return of his purchase money ($50), plus his lost profit on the resale of the stapler ($16), plus $1500 damages under the CPA due to unfair trade practices, plus punitive damages. The defendant was the individual who had sold the plaintiff the stapler via eBay.

This opinion is not available on line, but was published in The Daily Washington Law Reporter, Vol. 132, Number 208, page 2101 (Monday, Oct. 25, 2004).

Violation of Immigration Laws

Further to my previous post on this subject, I should note that in 1992, the D.C. Court of Appeals in Portillo v. United States, 609 A.2d 687 (D.C. 1992), considered the issue whether in a criminal case, the prosecutor committed reversible error by cross examining the defendant as to his illegal immigrtation status and for arguing that that negatively impacted defendant's credibility. The Court affirmed, as the cross examination at issue was not properly objected to at trial and it did not rise to the level of plain error. However, the Court criticized the prosecutor for improperly cross examining a witness on a prior bad act not involving a criminal conviction:

"Where the prosecutor went wrong concerning appellant's immigration status, however, was to suggest that the illegal entry itself was 'the grandest deception,' which rendered appellant's testimony incredible. This implies that anyone who -- for whatever reason -- has crossed our borders in violation of the government's immigration procedures should not be believed. Appellant, however, had not been convicted of an immigration-related offense. '[A] witness may be cross-examined on a prior bad act that has not resulted in a criminal conviction only where '(1) the examiner has a factual predicate for the question, and (2) the bad act 'bears directly upon the veracity of the witness in respect to the issues involved in the trial.' . . . Appellant's unlawful presence in this country did not bear directly upon his veracity in respect to the issue of his guilt on the charge of distributing drugs. Thus, the prosecutor could not properly use appellant's illegal status to argue against his general credibility."

Given that the U.S. Supreme Court in Hoffman has stated that illegal entry into this country amounts to criminal fraud, the argument seems stronger now that cross examination on such illegal entry goes directly to truth and veracity.

Flu Vaccine Shortage and the Concept of Risk

Due to the shortage of flu vaccine, the vaccine is supposed to be given only to those in "high risk" categories, which for this purpose are defined as the elderly, people with heart conditions, etc. While I understand the intent in doing so, to me the discussion of risk in this context is missing something. Risk is an equation, not a single variable, and part of the equation is frequency of exposure. That's an easy concept to grasp if, like me, you ride a subway train back and forth to work every day. Does a flight attendant who is, say 50, and works three days a week in the recycled air of a jet liner, and who is walking through several different airports every day at work, at less risk from the flu than a retired 70 year old who lives in a rural area and doesn't travel much in the winter? I'd say that flight attendant is at a very high risk of getting the flu and of spreading the flu to others. So if you only have one dose of vaccine between the two of them, which one should get it as a matter of good medicine and public health policy?

There is an article relating to this subject in the most recent issue of the PLoS Medicine online medical journal.

The article abstract starts with the following:

There is a much-quoted saying, attributed to the epidemiologist Geoffrey Rose: “A large number of people exposed to a small risk may generate many more cases than a small number exposed to a very high risk.” This is true for many individual risk factors such as salt intake (linked to high blood pressure and cardiovascular disease) and speeding on the highway (linked to injuries and accidents). Does it apply to many other global health risks? The study by Anthony Rodgers and colleagues suggests that it does.

Tech Developments for the defense lawyer

This isn't a technology blog, but on the other hand, to be an efficient and effective lawyer these days you need to keep up with new developments. In the Northern Virginia Journal today, (Tuesday Oct. 19), there is a rave review by David T. Hughes of a voice over IP (VOIP) service called Packet8. This dovetails with other articles I've seen to the effect that the most popular technology investment for law firms lately is the adoption of VOIP telephone systems.

Also today there is a rave review in the Washington Times for the latest version of Adobe Photoshop Elements, version 3.0. We don't need trick photography in the legal profession, but we do need to be able to salvage underexposed digital photographs without out a lot of bother.

Google desktop

I installed Google desktop to give it a try and I'm underwhelmed. It doesn't index word perfect documents, at least, not mine. It doesn't index pdf documents either. So for me, it is not very useful. Still, it is a neat tool, and free, and I'm sure it will be improved over time, so I'm going to keep it installed unless it starts to cause problems.

Inter Alia has a more favorable review.

Alternatives include Swish, Wilbur , or if you want to pay. or dtSearch or Isys. Or

Jury Verdict for Plaintiff in Private Nuisance Reversed By Maryland Court of Special Appeals

The Maryland Court of Special Appeals has reversed a jury award of $25,000 to a property owner who sued a neighbor under a private nuisance theory. The neighbor had engaged in a series of rude and threatening actions in response to the plaintiff's construction of a fence along the property line. The plaintiff then sued the neighbor under a nuisance theory and received a jury verdict. The neighbor then appealed.

The Court of Special Appeals reversed, reasoning that the fact that the plaintiff avoided using her own back yard to avoid the rude neighbor was not enough to support a theory of private nuisance:

This avoidance policy was one of free choice. If they had used their yard (according to their proof), they would have risked nothing more than having to endure rude gestures or words from their neighbor. In sum, proof that they adopted such an avoidance policy was insufficient to prove either of the two necessary elements of a private nuisance action, i.e., (1) their injury was of such “a character as to diminish materially the value of the property for” use as a dwelling and (2) Echard’s actions caused “serious interference with the ordinary comfort and enjoyment” of the Krafts’ property. Slaird, 260 Md. at 9.

Summary Judgment In Favor of Retail Store On Res Ipsa Theory Reversed

In Norris v. Ross Stores, the Maryland Court of Special Appeals reversed the trial court's award of summary judgment to a retail store with regard to the plaintiff's negligence theory which relied upon the doctrine of res ipsa loquitur.

The plaintiff had been shopping in the store and was injured when, as she passed by a glass shelving unit displaying goods, the shelving unit collapsed and shattered. The store was open to the public at the time. The shelving unit had been installed in the store by an independent contractor.

The trial court awarded summary judgment to the store, evidently because the court reasoned that no reasonable jury could find that the store had exclusive control over the shelving at the time of the occurrence.

The Court of Special Appeals reversed, finding that under these facts, the element of exclusive control was an issue of fact for a jury, and reasoned in part as follows:

Nor did Ross submit any evidence that Norris or others contributed in any way to cause the incident. On this evidence, we are satisfied that it was for a jury to determine whether Ross was in fact in exclusive control of the shelving unit. The resolution of whether the display was improperly installed, unstable, or otherwise capable of causing injury for any reason attributable to Ross was a function which should have remained with the jury. A jury could, but would not be required to, accept Norris's testimony that she did not touch the shelving unit and did not see anyone else do so. In order to find that a third person interfered with Ross's exclusive control and was responsible for the collapse of the unit, a jury would have to accept that someone other than a Ross employee or agent tampered with or caused damage to the unit, and did so without detection by Ross. Ross suggests that "a store patron could have struck the shelves with a shopping cart, or misused the shelves by standing, climbing or sitting on same. . . .” This hypothesis does not conclusively refute Norris's version of the incident. A jury might deem Ross's theory to be rather remote. It could determine that the speculated "misuse" of Ross would most likely result in the immediate collapse of the shelving unit, while an improper installation or stacking might be more likely to result in a delayed collapse.