I don't think there are many pictures, maybe a couple, but Helena did get me to go camping last weekend. We went with a lot of her friends from Boy Scouts. It was an adult camporee. We stayed in a tent, but those who planned ahead got to stay in cabins.
There was far more than enough food. The weather at Petit Jean was perfect for camping. We had one early morning rainstorm, but otherwise there was absolutely nothing to complain about. It was cool enough that there were no insects.
We plan to go with this group again next year. This time it looks like we'v
A defendant cited Jackson, infra, for the proposition that my client didn't suffer a hostile work environment. Those are always tough cases, but the defendant here pretty much hung its hat on Jackson. West's Keycite shows that the case was substantially modified on reconsideration. It was no longer good law for the point the defendant cited it for. At first I was wondering how the hell they missed that the case was no longer good law, but when I followed up I noticed that in the F.3d it says (incorrectly) that rehearing was denied. The Keycite shows it cited by many courts without acknowledging the subsequent history. I decided it was better not to act too outraged about the defendant relying on a case that was no longer good law and instead to be very gentle about it.
Frankly, this is almost always the right way to go. I've had the privilege of talking to Judges about it, and one thing they are more than tired of is lawyers pointing the finger at each other about alleged mistakes. If anyone is going to get upset at lawyers who make mistakes, it ought to be the ones in the robes. Here, I'm not even comfortable calling it a mistake.
Jackson v. Flint Ink North American Corp., 370 F.3d 791 (8th Cir. 2004) was overturned on request for rehearing. On the petition for rehearing, the Court of Appeals, having had additional facts pointed out on rehearing, held that work environment faced by worker was objectively hostile, and thus was actionable arguably. Jackson v. Flint Ink North American Corp., 382 F.3d 869 (8th Cir. 2004).
There is some inconsistency in the treatment of this case in the reports. West’s reports that rehearing on this case was denied on September 3, 2004. Of course, West’s also published the decision on reconsideration (dated August 24, 2004). Plaintiff's counsel suspects that it is due to this inconsistent treatment that some courts continue to cite this case as authority without noting its subsequent history. See, e.g. Griffey v. Daviess/Dekalb County Regional Jail¸ Case No. 10-06099-CV-SJ-DGK p. 10 (W.D. Mo. 2012); Bell v. Amercian Greetings Corp., 3:04CV00303-WRW, 2007 WL 473693 (E.D. Ark. Feb. 8, 2007), n.43; aff'd sub nom. Bell v. Am. Greetings Corp., 279 F. App'x 415 (8th Cir. 2008); Carlson v. Leprino Foods Co., 522 F. Supp. 2d 883, 889 (W.D. Mich. 2007); Lindsey v. Cube Corp., 386 F. Supp. 2d 1037, 1040 (W.D. Ark. 2005); Brown v. Arkansas State Highway & Transp. Dept., 358 F. Supp. 2d 729, 734 (W.D. Ark. 2004) aff'd sub nom. Brown v. Arkansas State Highway & Trans. Dept., 166 F. App'x 885 (8th Cir. 2006).
I had the privilege of arguing on behalf of Patricia Cannady, personal representative of Anne Pressly, in our claim against St. Vincent's Infirmary and others arising out of the unwarranted intrusion on her seclusion while in the hospital. There have been several news reports about the argument.
We are hoping for a swift and just resolution by the Arkansas Supreme Court. We hope to be allowed to submit our claims to a jury.
The entire oral argument can be viewed on the Arkansas Supreme Court's webpage.
I am impressed with Weebly (which is where I am hosting this website). It's fairly inexpensive, but most importantly, it's easy t use. I have told myself for a couple of decades that I need to learn how to program, and for at least a decade that I need to learn some HTML, but I really haven't managed to do it.
These Weebly websites allow me to put together a site with very little effort. Using this technology, I created a webpage for our Advance Sheets group. It's arkadvancesheets.weebly.com. I can create up to ten websites if I want them. Granted, most people don't need ten websites. I certainly don't. But I am enjoying being able to manage my website in this manner.
This isn't an excuse for not learning how to program or write HTML.
The Arkansas Supreme Court has set oral arguments in Cannady v. St. Vincent's Infirmary for September 13, 2012. I will be participating on behalf of the plaintiff. The Arkansas Supreme Court assumed jurisdiction of this case because of the importance of the issues involved. The question is whether family members of a deceased person have any rights to bring a lawsuit against people who invaded the deceased person's privacy before death. We are optimistic that the Court will rule in our favor, but whatever the outcome, this case will be important in determining the extent of the right to privacy under Arkansas law.
Here are some of my recent CLE activities
Helena, Ben, a couple of Ben's friends, and I went to MidSouth Con this weekend. It was very entertaining and relaxing. I attended several of the conferences, including "So You Want to Write a Screenplay?" [See the WHIP entry below], "Brave New Worlds" [a discussion of dystopian science fiction], "Things in Science We Don't Understand" [a panel of physicists, rocket scientists from NASA, etc discussed the things we don't yet know], and a few other ones. I attended some costuming and garbing sessions with Helena.
We got to see an excellent Rocky Horror Picture Show with a shadow cast from Memphis. They did a great job. It was probably the best shadow cast I've ever seen. The audience was great, too. They knew a lot of call-backs. Of course, that kept me up until close to 3:00 in the morning. I'm too damn old to stay up until 3:00 in the morning. I crashed the next night, missing the costume contest.
Also, we took very few pictures. I guessed there would be a lot of pictures on the web. Just use Google Images. As of last night, there weren't that many pictures, but I'm sure they'll surface.
I bought a few small-press books, as always. I enjoy reading those sometimes, although my time has been fairly limited and I haven't read nearly as much as I would like to. One that looked interesting was The Anthology from Hell: Humorous Stories from WAY Down Under. The editor was Julia Mandala. I've read a few of her other works.
I got a book on self-publishing. At one time when I was teaching at Pulaski Tech in the paralegal program I considered composing my own textbook for Appellate Advocacy. None of the books out there would fill the bill. Apparently you can self-publish on CreateSpace (Amazon) and print out fairly economical copies. It looks like you can print them out for five or ten bucks a piece if you do it right. I'll have to investigate further. Right now I barely have time to read the books I want to read. Is it realistic to expect I'll be able to write one? I can't even keep up with this blog?
covered my oral argument before the Arkansas Supreme Court yesterday (Thursday, January 11, 2012). I had the privilege of representing Teresa Broussard in a challenge to a section of the Civil Justice Reform Act of 2003. The oral argument can be seen on the Arkansas Supreme Court's webpage.This is no longer the "First Immortal Generation" blog, but the has become the "Gerry gets his name in the news again" blog. The Arkansas News
Ms. Broussard was under the care of a nephrologist and a general surgeon. She entered the hospital for purposes of surgery. The surgery went on as planned, however Ms. Broussard was severely burned during surgery. We do not know how the burn occurred. Ms. Broussard originally hired another lawyer who investigated the case on the theory -- not unreasonable -- that something must have gone wrong in the operating room for a woman to come out of surgery with a severe burn on her chest. At some point after taking on the case, that lawyer retired and Ms. Broussard had to find another lawyer. By the time she came to us the case had already been filed and was pending before the court.
Ms. Broussard had found an expert witness, Dr. Terence Baker, Dr. Baker is board certified in many areas, including family medicine and forensics. Dr. Baker was not a specialist in the fields of nephrology or general surgery. After much investigation, we were unable to determine the cause of the fire. The best explanation, which isn't a very good one, is that she suffered an allergic reaction to betadine. The reason that explanation was not terribly satisfactory is that she had been exposed to betadine on numerous occasions without any reactions in the past.
Dr. Baker was more concerned with the care and treatment Ms. Broussard got after the surgery. Both the nephrologist and the surgeon saw her several times after the surgery. They recognized that they did not know what to do about burns. That is not terribly surprising. Burn care is not in the expected area of practice for a nephrologist, and even a general surgeon has only limited exposure to patients with burns. Dr. Baker's problem with the care Ms. Broussard received was that regardless of his specialty, if a doctor recognizes that something is outside of his field of expertise, he should immediately find someone with the proper expertise. This was particularly true given the severity of the burns reported by Ms. Broussard.
Ms. Broussard was released from the hospital but re-hospitalized a few days later. After being released from the hospital the second time Ms. Broussard called her nephrologist and basically told him that she was going to the burn center in Tulsa, Oklahoma. With that, the nephrologist reluctantly granted her a referral.
At the burn center, it was determined that Ms. Broussard's burns were serious. She ultimately required extensive treatment. Dr. Baker testified that had Ms. Broussard been sent to the burn center when she should have been, the amount of treatment necessary and the amount of scarring that resulted would have been significantly reduced.
The nephrologist and the surgeon asked the trial judge to dismiss the case on summary judgment. Their argument was that Dr. Baker was not qualified under the Civil Justice Reform Act because he was not of the "same specialty" that they were.
Our response to that argument was that insofar as the tort reform act required a doctor to have the status of practicing in the same specialty as the defendant, it violated Amendment 80 to the Arkansas Constitution. Rules regarding pleading, practice, and procedure in court are delegated exclusively to the Arkansas Supreme Court under that amendment. The Arkansas Supreme Court had promulgated a rule for determining whether an expert witness should be allowed to testify in a civil case. The legislature's insertion of a requirement that that expert witness also show that he practices in the same field as the defendant was an unconstitutional infringement on the authority of the Supreme Court.
The trial judge rejected that argument and held that Dr. Baker would not be allowed to testify against the defendants. He granted summary judgment for the doctors. We appealed.
All branches of government in Arkansas -- judicial, legislative, and executive -- have a duty to follow the Arkansas Constitution. At the time the Civil Justice Reform Act was passed, many commentators told their representatives that some of the provisions of violated the Arkansas Constitution. The legislature felt otherwise, and passed the act.
Up to now several provisions of the act have been struck down as unconstitutional. See also Summerville v. Thrower. We feel that the Arkansas Supreme Court's decisions in those cases strongly supported our position.
The matter is now before the Arkansas Supreme Court. I had the privilege of arguing the case before the court, and now I've also had the privilege of getting my name in the paper once again. Whatever the result, I will post an update when the Supreme Court rules.