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December 2004
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Washington Lawyer Article On Online Legal Research Market

In a prior post, I encouraged the D.C. Bar to consider joining the Casemaker consortium.  The monthly magazine published by the D.C. Bar, Washington Lawyer, has printed an excellent article by Sarah Kellogg which discusses Casemaker in the context of an overall survey of the online legal research market. 

One point the article does not make clear enough, however, is how much cheaper Casemaker is compared to the cost of Lexis or Westlaw.   Basically, for members of the Casemaker consortium, any member of the bar of those States automatically gets unlimited access to Casemaker included as one of the benefits you get when you pay the annual fee to join the bar association.   In comparison, an individual subscription to Lexis, for example, would probably cost an attorney two or three hundred dollars per month, depending on what "slice" of Lexis' database is included. 

Another footnote to the Washington Lawyer article is that it fails to mention FastCase, which is an online legal research service that is based in Washington, D.C.  FastCase has good coverage, and uses dtSearch (an Arlington, Virginia product) as its search engine -- which means it offers both Boolean and natural language searching.

The Washington Lawyer article quotes blogger Tom Mighell, by the way.



Tort Reform: Maryland Medical Malpractice Bill

The Maryland Patients' Access to Quality Health Care Act of 2004 was recently enacted.  Information concerning the bill's passage is here.  The unofficial, marked up text of the bill is here.  Among other things, the Act limits an award or verdict for noneconomic damage for a cause of action arising between 1/1/2005 and 12/31/2008 to $650,000.  After that, it increases by $15,000 per year.

Virginia Supreme Court Requires New Trial Where Plaintiff's Damages Expert Based Opinion on Fictional Assumptions

In Vasquez v. Mabini, the Virginia Supreme Court reversed a $2 million judgment in favor of the plaintiffs in a wrongful death case, and remanded for a new trial limited to the issue of damages.  The sole issue on appeal was whether the verdict had to be overturned because it was based on speculative opinions of plaintiff's damages expert, Richard B. Edelman, a Professor Emeritus at American University.  The assumptions made by the expert included an assumption that the decedent's dependent adult son would have continued to live 24 years into the future even though the witness knew that he had died before trial. 

The Court found that the following assumptions made the Edelman opinion inadmissible:

The economic value of the decedent’s lost income was projected from a base of $16,000 per year, beginning the day after the accident and continuing until retirement, based upon an assumption of full-time clerical work with added annual increases and fringe benefits. On cross-examination, however, the expert admitted that Mrs. Mabini had little experience as a clerical worker, had earned less than $1000 the previous year and that her annual earnings for the preceding several years had never exceeded $7000. She had been seeking full-time clerical employment since  moving to Virginia, but had been unable to find anything but part-time work. The record does not show that she had ever held fulltime employment or received any fringe benefits.. . .

. . . .

The expert’s assumption that the decedent would have received a 3.7% retirement benefit in addition to her salary was premised on his further assumption that she would have found full-time clerical employment the day after the accident. He testified: “most full-time employees get that.” His conclusion, however, was based only upon a statistic applied to facts entirely unrelated to the personal circumstances of the decedent. Similarly, his assumption that her income would have increased 4.25% each year until retirement was based upon a statistical projection of wage rate increases applied to the unfounded assumption of fulltime employment.

In calculating the value of Mrs. Mabini’s lost services, protection, care and assistance, the expert made the assumption that her son, Pomeroy, would have lived throughout his mother’s remaining life expectancy, an additional 24 years, and that he would continue as an adult dependent throughout that time. In fact, the expert was aware that Pomeroy had died before trial, less than six months after his mother’s death.

Copyright Infringement Suit Against Police Dismissed

In a bizarre case, Shell v. City of Radford, the U.S. District Court for the Western District of Virginia has dismissed a photographer's copyright infringement suit brought against the City of Radford police department, which had seized a collection of his photographs pursuant to a criminal investigation related to the death of the photographer's assistant. 

In his copyright infringement suit, the photographer contended that he was unable to earn a living because he was unable to access his own work.  He claimed he was unable to complete a book in progress without his work.

The police argued for a blanket rule that copyrighted photographs seized in a criminal investigation may be copied and distributed for use in the investigation.

The Court declined to adopt a blanket rule as to the fair use by the police, but found after balancing the statutory factors governing fair use, that the fair use doctrine applies to the police department's use of the photographs in its investigation.

D.C. Court Appeals Affirms Summary Judgment In Legal Malpractice Case Where Plaintiff Failed to Identify An Expert Witness

The D.C. Court of Appeals has recently affirmed a decision by the trial court which granted summary judgment in a legal malpractice case, on the grounds that the plaintiff failed to name an expert witness.

Disclosure:  This case was defended by one of my partners, David P. Durbin, who has defended many legal malpractice cases over the years.

Moving Company's Forum Selection Clause in Contract Not Enforced by U.S. District Court for D.C.

In Byrd v. Admiral Moving and Storage,  the U.S. District Court for the District of Columbia denied the Florida-based moving company's motion to dismiss based on a statute of limitations defense and a forum selection clause in the moving contract  which specified that in the event of any dispute, "the parties specifically agree that venue shall lie in Broward County, Florida."  Among other things, the Court stated that it is arguable that the forum selection clause was not exclusive, but permissive.  The Court also took into consideration the plaintiff's pro se status and the hardship to her if the venue was transferred to Florida. 

According to plaintiff's allegations, a breach of contract by the defendant resulted in her belongings, which were supposed to be held in storage, being sold at auction by the storage company.

Court of Appeals Holds That Wife Does Not Have Independent Cause of Action for Failed Vasectomy

A previous post noted a negligent vasectomy case that had been decided by the Maryland Court of Special Appeals.

Now the Court of Appeals of Maryland has issued an opinion in the same case, but on a different issue.  The Court held that a wife does not have an independent cause of action against a physician who is negligent in performing a vasectomy on her husband, where the wife had no relationship or direct interaction with the physician.  The husband had been barred from recovery from the physician due to his own contributory negligence in failing to seek a sperm count after the vasectomy.  The wife's claim was held to be a derivative one which fell with the husband's.  On appeal, the wife argued that she should be allowed to pursue an independent claim. 

The Court of Appeals held that because the physician owed no duty to the wife, who never even met the physician until the day of trial, she could not maintain an independent cause of action. 

Significantly, the defendant physician in this matter was not the urologist who performed the vasectomy, but was a physician who saw the husband on an unrelated matter.  The husband alleged that he asked the physician for a referral to get a sperm count done, and that the physician talked him out of it.

The Court reasoned in part that:

Nor are we willing to impose a legal duty on Dr. Edgecombe with regard to Mrs. Dehn based simply on his alleged awareness that Mr. Dehn was married. A duty of care does not accrue purely by virtue of the marital status of the patient alone; some greater relational nexus between doctor and patient’s spouse must be established, if it can be established at all, and here it was not. A duty of care to a non -patient is not one which Maryland law is prepared to recognize under these circumstances. The imposition of a common law duty upon Dr. Edgecombe to the wife under these circumstances could expand traditional tort concepts beyond manageable bounds. The rationale for extending the duty would apply to all potential sexual partners and expand the universe of potential plaintiffs. All of the above rationales for extending the duty of care apply with equal force to a non-spouse: Unmarried as well as married couples are bound by law to provide for their children, and the physical consequences of childbirth from a negligent vasectomy remain the same regardless of whether the mother is married or not.