Physical Spoliation of Evidence: When It Doesn't Matter
November 01, 2003
Physical unavailability of evidence can influence litigation, but for various reasons, the courts will not always draw an adverse inference against the party that has lost or destroyed such evidence. One of these reasons is simple relevance. A case in point is <i>Kanyi v. United States</i>, 2001 U.S. Dist LEXIS 19814, in which the plaintiff appealed a Magistrate Judge's order denying a motion for an adverse inference charge against defendants. The court found that even though defendants had destroyed evidence, their actions were at most merely negligent, and besides, the evidence in question was immaterial to the case.
Verdicts
November 01, 2003
The latest rulings of importance to you and your practice.
Med Mal News
November 01, 2003
National news of interest to the medical malpractice community.
A Primer on PAMII
November 01, 2003
Congress has enacted several federal statutes to protect and advance the interests of those with mental illness or developmental disabilities, and of other mentally handicapped persons who do not meet the statutory criteria for being either mentally ill or developmentally disabled. These statutes were enacted partly in response to concerns about the mistreatment of the mentally handicapped in institutions, including both public and private hospitals, nursing homes, and correctional facilities. Not surprisingly, therefore, the agencies constituted to enforce these laws have been granted broad powers to monitor and investigate conditions in facilities that provide treatment and care for the mentally handicapped. In recent years, there has been significant litigation concerning the degree to which that investigatory authority includes a right of access to institutions' peer review and quality assurance records, which otherwise would be protected by state privilege statutes.
Contribution, Indemnification or Contract
November 01, 2003
Faced with hefty legal bills, damage awards, or settlements as a result of discrimination or harassment claims, employers have attempted to recover costs from third parties whom they perceive as causing or sharing responsibility for the problem. To this end, employers have sued unions and even their own employees in an effort to spread the financial responsibility. The theories behind such suits, and their results, have been mixed.
Supreme Court Clarifies Standard of Proof for Mixed-Motive Discrimination Cases
November 01, 2003
At the conclusion of its most recent 2002-2003 term, the U.S. Supreme Court issued a decision clarifying plaintiffs' standard of proof in "mixed-motive" employment discrimination cases under Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991. In <i>Desert Palace, Inc. v. Costa</i>, the Court held that a plaintiff is required to prove by direct evidence that an unlawful factor was a "motivating factor" in the challenged adverse employment action. Instead, a plaintiff can prove his or her discrimination claim in a mixed-motive case by circumstantial evidence. As a result of this decision, defendants will find it more difficult to obtain summary judgment dismissing mixed-motive discrimination cases prior to trial, the result of which will be that more such cases will be subjected to the uncertainties of jury trials.
Hostile Environment As Form of Retaliation
October 31, 2003
Can the creation of a hostile environment suffice as an adverse employment action in a retaliation claim under Title VII and in similar state and city actions?
Letter from the Editor
October 28, 2003
A "hello" from our new Editor-in-Chief, Elizabeth Anne "Betiayn" Tursi.
