Tom Appeals Blog

News and Observations About Law and Society

"As long as I have any choice, I will stay only in a country where political liberty, toleration, and equality of all citizens before the law are the rule." - Albert Einstein

When Pigs Fly (or Stink)

Posted: March 30, 2011 Filed under: Case Law, Commentary, Law-Related News

There is a legal rule in Florida known as the “tipsy coachman doctrine.” In some states, the rule is known by the plainer name, the “right for the wrong reason” doctrine. Because trial court decisions carry a presumption of correctness and an appellate court’s job is to affirm the lower court whenever possible, outcomes are usually affirmed if they are ultimately correct, even if the lower court got to the correct result by an erroneous or circuitous means. Hence the name “right for the wrong reason.”

In this opinion, the Missouri Court of Appeals, Western District, affirmed an $11 million verdict in favor of landowners who endured “intense odor” and “ill odors” emanating from three, nearby hog farms. It has nothing to do with the tipsy coachman, or right for the wrong reason, doctrine, but it reminded me of a different case in neighboring Kansas. There, the Kansas Supreme Court upheld the outcome of a referendum election in which local voters, by a dubious margin of 22 votes, rejected corporate hog farming in Hodgeman County. (Coincidentally, Clint Eastwood’s Unforgiven begins on a farm in Hodgeman County).

So, where does the tipsy coachman doctrine come into play? It doesn’t. It just crossed my mind as I chuckled at the idea that the Kansas court may have been right to affirm the election results for a different reason – one borne out more than a decade later by the experience of landowners in neighboring Missouri.

The Missouri opinion is noteworthy, however, for a different issue appellate lawyers often see – waiver. Waiver results from the failure to properly “preserve” error in the lower court. One of the hog farms’ arguments on appeal was that the jury’s verdict was excessive. But, as noted by the court of appeals, “at trial they failed to even address the issue of damages in argument to the jury.” Instead, they chose simply “to argue that the odor emanating from the hog operation did not substantially impair the Respondents’ use and enjoyment of their property.” Such strategies are common and valid, but they are not without risk. As the court of appeals observed, “[w]hile it may be a perfectly valid trial strategy to argue the issue of liability solely and not address damages to the jury, we reject [the hog farms’] attempt now to litigate for the first time what they failed to do at trial.”

Postscript: The name “tipsy coachman” comes from a poem found in an 1879 opinion by the Georgia Supreme Court, Lee v. Porter, 63 Ga. 345 (1879). It goes like this:

The pupil of impulse, it fore’d him along,
His conduct still right, with his argument wrong;
Still aiming at honour, yet fearing to roam,
The coachman was tipsy, the chariot drove home;….

Supreme Court Hands FLSA Victory to Employees

Posted: March 22, 2011 Filed under: Case Law, Employment Law

In a 6-2 opinion, the United States Supreme Court today ruled that the antiretaliation provision of the Fair Labor Standards Act (FLSA) prohibits employers from retaliating against employees who complain orally but not in writing. The decision reverses a ruling by the Seventh Circuit Court of Appeal that oral complaints are not protected under the FLSA. The FLSA is the 1938 law that governing minimum wage, maximum hour, and overtime pay. It also forbids employers from discharging “any employee because such employee has filed any complaint” alleging a violation of the Act. 29 U. S. C. §215(a)(3).

Writing for the Court in Kasten v. Saint-Gobain Performance Plastics Corp., Justice Breyer explained that interpretation of the statutory phrase “filed any complaint” “depends upon reading the whole statutory text, considering the [statute’s] purpose and context . . . , and consulting any precedents or authorities that inform the analysis.” The court concluded that the meaning could not be deciphered from the words alone because some dictionary definitions of “filed” contemplate a writing while others use encompass oral material. Also, various state and federal laws and regulations sometimes contemplate oral filings. The Court also noted that oral filings were a known phenomenon when the FLSA was passed.

The Court noted its broader interpretation promoted the FLSA’s prohibition against “labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.” It also gave weight to the interpretations of the Department of Labor and the EEOC, both of which hold the view that “filed any complaint” covers both oral and written complaints.

Justices Scalia and Thomas dissented from the Court’s holding. Justice Kagan did not participate.

Employers Bear Burden of Proof in FMLA Reinstatement Disputes

Posted: March 22, 2011 Filed under: Case Law, Employment Law

The US Court of Appeals for the Ninth Circuit issued a St. Patrick’s Day ruling favoring employees in reinstatement disputes arising under the Family Medical Leave Act (FMLA). The court noted that its decision is supported by case law from the Eighth, Tenth, and Eleventh Circuits. Florida is part of the Eleventh Circuit.

Sanders v. City of Newport involved a former employee’s claim that her employer interfered with her rights under the FMLA by denying her reinstatement without cause. The district court instructed the jury that the burden was on the former city employee to prove that she was denied reinstatement without “reasonable cause.” The Ninth Circuit reversed, concluding the instruction was erroneous and not harmless.

In ruling as it did, the Ninth Circuit noted that, under the FMLA, Department of Labor regulations, and the court’s own precedent, the burden of proof was on the employer to show that it had a legitimate reason to deny an employee reinstatement. Neither the FMLA nor labor department regulations reference a “reasonable cause” standard for interfering with an employee’s right to reinstatement.

In an unique twist, the case also involved equitable claims under state law. On the same evidence heard by the jury, the district court ruled that the employer violated the employee’s rights under state law and awarded damages. The Ninth Circuit reversed that ruling, too, explaining that “where legal claims tried by the jury and equitable claims tried by the court are ‘based on the same set of facts, the Seventh Amendment requires the trial judge to follow the jury’s implicit or explicit factual determinations.’” Because of the error in the district court’s FMLA jury instruction and verdict form, the court of appeals could not determine what factual findings the jury might have made with regard to the employee’s FMLA claim under a proper instruction.

Patient’s Representative Required to Arbitrate Medical Malpractice Claim

Posted: March 16, 2011 Filed under: Case Law, Commentary, Law-Related News

In this article, a federal judge is quoted as having a concern about “[t]he dramatic decline in the use of jury trials to resolve civil disputes.” According to the article, 11 percent of civil cases filed in federal courts were resolved by juries in the late 1960s. By 2009, the percentage had dropped to a mere 1.2 percent. That means only about one out of every 100 lawsuits filed actually goes to trial before a jury in federal court. The reasons are several, but fans of the jury system are concerned.

A case decided by the Florida First District Court of Appeal today illustrates one reason for the decline. It also illustrates the direct, and some would argue negative, effect on ordinary people.

Franks v. Bowers involved claims for wrongful death and medical malpractice stemming from the death of a patient who received medical care provided by the defendants. According to the court, the patient signed a document providing that “any negligence claim relating to the diagnosis, treatment, or care of Patient . . . shall be resolved by arbitration . . . .” The agreement limited the damages available to the patient in the event of negligence, and it required that “any negligence claim relating to the diagnosis, treatment, or care of Patient . . . shall be resolved by arbitration . . . .”

When the representative of the deceased patient’s estate filed the lawsuit, the defendants asked the trial court to compel arbitration. The trial court granted the motion to compel arbitration and required the parties to submit their claims to an arbitrator rather than a judge or jury. The trial court held that, by signing the agreement, the patient agreed to mandatory arbitration. The court of appeal affirmed, saying that the trial court “properly construed and applied the arbitration clause.”

Under this decision, in order to escape a contract providing for arbitration of disputes, a health care patient must either demonstrate that the agreement violates public policy or is unconscionable. “[U]nconscionability relates to the procedural manner in which the agreement was obtained, and substantive notions of basic fairness.” In other words, it isn’t enough that an agreement to arbitrate was obtained in unfair circumstances. The literal terms of the agreement must also be so unfair as to deprive the patient of basic fairness. Fewer rights and remedies is probably not enough. The Franks court said the patient’s representative “has not made that necessary showing.”

It is important to note that, although the case involved claims of medical negligence, the court’s decision is not about whether the health care providers were actually negligent. They very well may not have been.

The point is simply this: Plain contract language means what it says and will probably be enforced. A person who signs any contract without reading it or without understanding what they are signing does so at his or her own peril – and, in this case, to the peril of the jury trial system on which this country was founded.

Unanimous Supreme Court Gives Employees a Victory

Posted: March 1, 2011 Filed under: Case Law, Employment Law, Law-Related News

In Staub v. Proctor Hospital, a widely watched case involving what is called the “Cat’s Paw” theory of liability, the United States Supreme Court has unanimously determined that employers may be liable for wrongful or discriminatory termination even where the ultimate decision maker did not have discriminatory or unlawful motives.

For employers, the decision increases the risk of liability. That said, employers who conduct thorough, independent workplace investigations will have less risk than employers who do not investigate and verify the motives of lower-level supervisors who influence adverse employment decisions.

Staub arose under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which protects service men and women from discrimination, but the decision will likely impact cases involving other forms of employment discrimination as well, especially those that require only that discriminatory intent be “a motivating factor,” such as claims arising under Title VII of the Civil Rights Act of 1964.

Admitted: Florida, Kansas, New Mexico (inactive)