Judge Willett’s Opinion and the “Catch” to Qualified Immunity

We’ve talked before about the doctrine of qualified immunity: what it is, the scope and boundaries of its application, and how, at times, it can serve as an impediment to genuine justice.

It’s important for us as civil rights attorneys to keep up on cases where qualified immunity plays a major role in legal decisions. It’s our job to track case law where qualified immunity is applied (or denied). A recent opinion by Judge Willett with the Fifth Circuit Court of Appeals emphasizes the uncertainties of qualified immunity as a legal standard and the legal implications when prior case law doesn’t yet exist.

A standard in qualified immunity without precedents

When the Texas Medical Board executed an administrative subpoena on the medical office of a physician named Dr. Joseph Zadeh, the ensuing raid included two federal Drug Enforcement Agency (DEA) officers. Dr. Zadeh asserted that the Board agents had exceeded the scope of their subpoena in executing their search of his offices. He sued, seeking damages for alleged violations of his constitutional rights.

The case eventually made its way to the U.S. Court of Appeals for the Fifth Circuit. That court concluded that the Board and its agents were entitled to the protection of qualified immunity because their conduct did not violate “clearly established” law. In other words, there was no identical precedent that found in favor of the plaintiff. No precedent meant no case for Dr. Zadeh even if, as the court acknowledged, it was sympathetic to the plaintiff’s claims.

Not all the jurists involved in that decision agreed with the court’s logic.

Judge Willett’s concerns

In an opinion “concurring dubitante,” Judge Don Willett registered his “disquiet over the kudzu-like creep of the modern immunity regime.” He objected to the court’s requirement that identical case law be established before qualified immunity can be pushed aside, noting that “it’s immaterial that someone acts unconstitutionally if no prior case held such misconduct unlawful.”

Judge Willett recognized the catch-22 nature of qualified immunity as it is applied in the courts: “Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered.” Finally, Judge Willett distilled the issue down to a simple equation: “No precedent = no clearly established law = no liability” whose “imbalance leaves victims violated but not vindicated; wrongs are not righted, wrongdoers are not reproached, and those wronged are not redressed.”

In his taut and well-reasoned concurring opinion, Judge Willett captured the issue surrounding the potential abuse of qualified immunity.

A Supreme change needed in qualified immunity

We believe it is time for the doctrine of qualified immunity to be re-evaluated with the limits of its application more clearly defined. Victims of abuse by law enforcement and government agents deserve that kind of clarity. Realistically, achieving it is easier said than done.

The United States Supreme Court will have to be the agent of change. Qualified immunity has enjoyed special favor by the Supreme Court, but that position need not be permanent as more justices (such as Justice Clarence Thomas and Justice Sonia Sotomayor) express a growing concern about qualified immunity jurisprudence.

How long will our justice system live with the “yes harm, no foul” imbalance that too often leaves plaintiffs in the wake of court decisions that defer to the doctrine of qualified immunity regardless of the specific elements of a case? Too long, in our opinion.

It’s up to judges, such as Justice Willett, and to civil rights attorneys who see the damage done by qualified immunity to continue to speak up and advocate for a more balanced legal protection for both government agents and the people they serve.

Connect with us—we’re here to help.

Excessive Force Victim Denied Constitutional Right to Access Courts

As civil rights attorneys, we pay close attention to important cases and rulings that highlight flaws in the legal system. We also pay attention when courts set precedent that shows promise of improvement.

We’ve addressed the potential dangers posed by the Qualified Immunity Doctrine. It’s just one facet of the legal system that government actors can hide behind when they’ve abused their power and used excessive force. Unfortunately, there are others. A recent excessive force case provides a textbook example of another failing in the system that allows government agents to hinder a victim’s pursuit of justice. This case demonstrates one of the challenges civil rights attorneys must face, as well as the kind of creative approach that is needed to penetrate seemingly invincible defenses.

A case of excessive force

In 2010, a New Jersey man, Emil Jutrowski, was pulled over and arrested by two New Jersey state troopers for driving under the influence of alcohol. (He later pled guilty to that charge.) Through a misunderstanding at the time of the arrest, an altercation occurred, and Jutrowski was handcuffed and immobilized face-down on the pavement.

The state troopers were joined by two New Jersey police officers who had observed the scuffle and stopped to offer assistance. Soon after, one of the four law enforcement officers kicked Jutrowski in the head, fracturing his eye socket. Jutrowski did not see which of the officers had kicked him and later could not conclusively identify the assailant. All four officers, in their incident reports and testimonies, admitted that Jutrowski had been kicked while apprehended—yet, none would admit to doing so, nor would they identify the officer who had.

A creative legal approach by civil rights attorneys

Jutrowski sued all four law enforcement officers for excessive force, but a federal judge dismissed the case because the victim was essentially asking the court (and as a result, a jury) to guess which individual defendant should be held liable. The Third U.S. Circuit Court of Appeals in Philadelphia agreed.

But the case is not over, thanks to Jutrowski’s perceptive and persistent counsel. Jutrowski has alleged conspiracy on the part of the four officers involved in the incident; claiming that they were acting in concert to deprive him of his constitutional right of access to the courts to pursue his claim for damages. The federal appeals court ruled that Jutrowski could pursue this avenue of redress.

We commend the attorneys in this case for going beyond the obvious and for finding a creative way to secure justice for their client. In our own pursuit of justice for our clients, we understand that approach and can relate to that commitment. We hope Jutrowski and his attorneys ultimately prevail in this case. That would be an important outcome for future excessive force victims and the civil rights attorneys who represent them.

If you or someone you know has been the victim of excessive force or another rights abuse, contact the civil rights attorneys at Cooper & Elliott.

Connect with us—we’re here to help.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

Botulism Outbreak Leads to Need for Civil Litigation

The decision to sue after personal injury sometimes involves a complex internal struggle. Even when the damage is obvious, and the negligence and responsibility are reasonably clear, victims may still face questions about whether civil litigation is the right path to take.

What should one do when negligence leads to a life-long debilitation? And how should one approach the matter when the party responsible for the damages is a church?

A friendly gathering turns nearly deadly

Mitchell and his wife, Gwen*, had recently joined a new church and were looking forward to attending a potluck it was organizing. One church member brought potato salad, which she made from home-canned potatoes. Unfortunately, she hadn’t done the canning properly, and the potatoes were contaminated with Clostridium botulinum—a bacteria that causes botulism.

Mitchell and several others ate the potato salad. Mitchell never considered that with each bite he was exposing himself to the deadly botulism toxin.

The next day, he woke up with a headache and dizziness. His vision was blurred, and he could barely walk in a straight line. He went to work, thinking the nausea and dizziness would pass. But the symptoms grew worse throughout the day, and he went home with what he thought was the flu.

A neighbor, who happened to be related to the church pastor, came by and told Gwen to take Mitchell to the hospital immediately because others who had attended the potluck had demonstrated similar severe symptoms. When Gwen and Mitchell arrived at the hospital, they saw a row of ambulances at the emergency entrance. The potluck had resulted in the largest outbreak of botulism in the last 40 years.

Personal injury from a foodborne illness

Most of us associate a foodborne illness as a passing, though painful, stomach ache. But food poisoning caused by a botulism contamination can be much more serious. The symptoms can appear within 18 to 36 hours after ingesting the contaminated food. Beyond nausea, vomiting, and abdominal cramps, victims of foodborne botulism can develop paralysis, dry mouth, have difficulty swallowing or speaking, and experience blurred or double vision.

As the infection progresses down in the body, victims can have trouble breathing as muscle paralysis caused by the toxin sets in. The spread of the infection can be stopped with antitoxins, but the damage is irreversible.

Mitchell learned that the hard way. He received the antitoxin within the prescribed 24-hour time frame, but the damage had already been done. After an extended period in the hospital, Mitchell’s vision remained so impaired that he could no longer drive. He had trouble maintaining his balance and found it difficult to do simple chores like mowing the lawn. Brief periods of exertion simply exhausted him.

A food poisoning lawsuit creates a dilemma of conscience

When Mitchell reached out to us for help, we knew this case would involve several litigants, and that it would be in the best interests of all the victims to collaborate with each other. But there was one other complication peculiar to this case: the defendant was the client’s church.

Clearly, negligence was at the root of Mitchell’s illness (as well as that of more than a dozen other church members). And while one woman prepared the potato salad that caused the food poisoning, the church was ultimately responsible for ensuring the safety of those who attended its event.

Fortunately for all the victims, the church accepted responsibility for the epidemic and was open to resolving the civil litigation lawsuits of several different parties through mediation.

Doing the right thing for everyone

The impact of civil litigation extends beyond victims’ damages. It sends a message about negligence and responsibility, a message about protecting the welfare of society. Every restaurant, grocery store or business selling perishable food must take precautions to prevent foodborne illnesses by following regulatory guidelines established to protect consumers. The recent outbreak of food poisoning at a Chipotle restaurant reaffirmed that the threat of foodborne toxins is real whenever proper food-handling guidelines are not strictly followed.

Those same guidelines apply to any organization sponsoring an event where food is served.  Pursuing litigation when negligence leads to food poisoning is one way of reinforcing those guidelines and protecting others from future outbreaks.

The long-term health of the victim depends on quick diagnosis and treatment when foodborne illness is suspected. It’s also important to get the Centers for Disease Control and Prevention (CDC) involved quickly to isolate the source of the food poisoning.

If you become the victim of food poisoning, seek medical attention immediately. And if you have questions about seeking compensation afterward, give us a call.

Connect with us—we’re here to help.

*Names in this article have been changed to protect our client’s privacy. 

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

 

How Patent Legal Malpractice Can Devastate a Business

As a business owner, one of the most valuable things you can get from an attorney is a sound opinion, one based on facts and knowledge of the law. That opinion doesn’t guarantee your success, but it should assure you that there are no legal impediments that will keep you from moving your business forward.

A legal opinion should reflect careful crafting and thorough research. Opinions bandied around the water cooler are free, but an attorney’s opinion comes at a price and if he or she makes a mistake out of ignorance or a lack of due diligence, it’s too often more than just an “oops.” A faulty legal opinion can be devastating to a business and to the all the lives connected to it, from the owner to the investors to all the employees and their families.

 We’ve talked about the issue of legal malpractice, and how its victims are just as deserving of legal representation and fair compensation as the victims of personal injury or wrongful death. The question that must be asked before pursuing a legal malpractice case is, “Did the attorney, in this case, meet the minimum ‘standard of care?’” If not, there may be grounds for a lawsuit.

Ohio civil litigation attorneys address a patent oversight

A recent case provides—unfortunately—a clear example of legal malpractice in business law. The client, Xpansion, Inc.*, was looking to bring an exciting new product to the market. Xpansion had hired a patent law firm to get its product patented and, thereby, gain the exclusive right to sell it. The company was charged a hefty fee by the firm to conduct the patent search and file the necessary paperwork.

Such a fee would normally be justified considering the time and effort involved in obtaining a patent—except in this case, the law firm failed do its job. It turned out that there was already “prior art” for this idea, meaning it was not free and clear to be patented. Xpansion’s attorneys should have caught this problem early on but didn’t. And, based on the faulty guidance it received, Xpansion revved up its manufacturing and distribution plans, investing millions of dollars in a product that ultimately couldn’t be patented.

It is the responsibility of a patent attorney to find instances of prior art in a preliminary patent search. With more than 300,000 patents granted in 2015 alone, it’s not unusual for a company or individual to come up with an idea that someone else has already patented, especially if that product doesn’t exist in the marketplace. If an idea can’t be patented, it’s best to know that before your company makes an enormous investment in its development and marketing. As you can see, there’s a lot riding on that attorney’s ability to correctly identify prior art.

Legal malpractice leads to civil litigation

Xpansion’s patent attorneys fell short of the “standard of care” in this case, and it nearly destroyed the company. It had to shut down for months and re-tool for the future. Hundreds of employees were laid off while the company regrouped.

Fortunately, instances of legal malpractice are relatively rare. But the effects can be enormous, financially and personally, to businesses and people alike. If you have been injured through legal or medical malpractice that calls for civil litigation, don’t hesitate to give us a call. We’re here to help.

*Names in this article have been changed to protect our client’s privacy.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

 

Why We Pursue Legal Malpractice Cases

When you see a physician for treatment, you’re going into that relationship with a lot of trust. You trust that the physician has the expertise you need or will refer you to a specialist who does. Above all, you must trust that your physician knows and meets the standard of care established by the medical profession. If a physician fails to meet the standard of care, and his or her patient is harmed as a result, it could constitute medical malpractice.

The same dynamic exists between attorneys and their clients who’ve been harmed by legal malpractice. Luckily, our legal system provides a recourse for both types of harm.

It’s called legal malpractice

When you hire an attorney, you come into the relationship with two things: a legal issue that needs resolved and a great deal of trust in the attorney you are hiring.

How “good” is the attorney you’ve hired? You may have referrals from friends or business associates, people you believe you can trust. When taking referrals, consider how many attorneys the referrer has worked with to form a reasonable benchmark for comparison. You might ask how many attorneys they have seen in action?

In fact, there is no quantifiable way of measuring how “good” an attorney is or how one attorney stands competitively against others, the way you could say that one runner is faster than others in a race.

Much like you can’t measure prosecuting attorneys by convictions versus acquittals, you can’t rate civil litigation attorneys by their “batting average” in winning cases. All cases are different and nearly every case is subject to unpredictable twists and turns that make the idea of certainty very subjective.

So how is a client to know, when a case turns sour, whether the problem was legal malpractice? The idea of “standard of care” applies here, just as a similar standard applies to physicians.

What is legal malpractice?

Whether in civil or criminal litigation, legal malpractice occurs when a lawyer’s performance falls below the standard of care. “Standard of care” defines an attorney’s legal and ethical boundaries. It’s a “rule book” of sorts that defines what attorneys can and can’t do to advocate for their clients and what they are expected to do to protect the trust their clients have invested in them—and in the justice system.

The legal standard of care is a standard for competency, not for quality. An attorney can be competent according to the standard of care—doing everything he or she is supposed to do for a client—and still not be as knowledgeable, thorough, and creative as an opposing attorney.

That’s not legal malpractice. There’s no law against not being as good as the other guy and losing a case does not mean that legal malpractice was the cause (in fact, it rarely is).

But there may well be a case of legal malpractice when an attorney:

  • Misses deadlines in filing critical documents through ignorance, procrastination, or laziness
  • Damages a client’s case due to fraud or conflict of interest
  • Carelessly loses essential documents
  • Withdraws from a client’s case improperly (such as doing so without informing the client or the court)
  • Fails to know or to apply the law

These are just some of the triggers. Frankly, many law firms won’t touch this kind of case, but we believe we have a duty to help clients who have been injured by legal malpractice.

Serving justice by serving those wronged through legal malpractice

We’ve talked before about how to choose a civil litigation attorney. Doing that kind of basic research, either online or through the court system, can tell you a lot about an attorney. Face-to-face interviews—where you can learn what kinds of cases they have handled, how many, and what has made them successful—will go a long way to inform you about how they think, how they work, and how comfortable you will feel in extending your trust to them.

And though the process of vetting an attorney is well worth the effort when you consider what’s at stake, there is still no guarantee against legal malpractice.

When a client is injured by an attorney’s negligence, we feel strongly about taking on that case for the sake of the injured party. In a civil litigation case, justice may take the form of helping people get the compensation they need to rebuild their lives. In a criminal case, it may look more like making amends for months or years of a person’s life that’s been lost behind prison walls due to malicious prosecution or a neglectful defense.

If attorneys fail to perform to the minimum standard of care, don’t their clients still deserve justice? We think so. And we believe that others in our profession should be willing to step up and protect the integrity of the legal system we all depend on as well.

If you have been injured through legal or medical malpractice that calls for civil litigation, don’t hesitate to give us a call. We’re here to help.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

Fighting Legal Malpractice for Immigration Justice

Every case and every client comes with a unique, and often compelling, story. This one, we’re happy to report, comes with a happy ending. But, when we first began this journey with our client, there was nothing easy or certain about it.

When you talk about the “best and the brightest” emigrating to the United States, Sandeep Chaundhry* and his family met that standard in every way. A hard-working IT professional who came to America legally, Sandeep had arranged, through the attorney recommended to him by his company, to have his work visa extended as required by law.

Legal malpractice creates an immigration nightmare

A unique aspect of immigration law is that on some occasions, an immigration attorney can simultaneously represent the immigrant and the entity sponsoring his or her visa. In this case, Sandeep’s company was sponsoring his visa. So, as the applicant for the extension, his company hired an attorney who in turn came to represent Sandeep as well.

We want to point out that it’s relatively rare for an attorney to have such “dual representation.” The question is: what happens when the company and the immigrant have competing interests? Where should the attorney’s loyalties lie?

Sandeep did everything he was supposed to do to keep his status current. His attorney, unfortunately, did not. Because of the attorney’s missed deadlines, Sandeep and his wife were being threatened with deportation back to India. And to make matters worse, the couple could have been deported without their two young sons, who were both American citizens.

For Sandeep and his family, the American dream had spiraled into a legal and bureaucratic nightmare—one fueled by the lies and negligence of others.

Seeking protection and justice through Ohio civil litigation attorneys

This is when Sandeep came to us for help. He was forced into unemployment because of the uncertainty of his immigration status. Unable to work, and at the mercy of his attorney, he and his family depleted their savings account and were forced to charge basic living expenses to credit cards. He was exhausted from stress and gaunt from limiting himself to one meal a day to ensure his children would be fed.

We were certain that Sandeep had been the victim of legal malpractice. We also discovered evidence that his employer had been warned about his immigration status but had failed to alert him. Instead he consistently received lies and false assurances from his attorney and his company.

We initiated lawsuits against them both.

Two victories that changed everything

Both sides denied any complicity in the Chaundhry family’s woes and blamed the other party. But the evidence said otherwise. Ultimately, we were able to win significant settlements from both defendants.

The immigration attorney whose negligence set the whole thing in motion initially denied any wrongdoing. Eventually, that attorney agreed to provide a Lozada affidavit: an admission that the client had been diligent in his efforts to fully comply with immigration law and that he—the immigration attorney—had been responsible for the Chaundhry family’s problems with immigration authorities.

From Sandeep’s former employer, we sought a significant financial settlement, one that would not only compensate Sandeep for two years of unemployment but also for the significant loss of income that he would have to face by being forced to return to India.

Immigration law provides that, because he had failed to file properly for a legal extension and had overstayed his visa (on advice of his immigration attorney), Sandeep would be barred from returning to the United States for ten years. What he could earn in India was a fraction of his earning potential in the United States, and we built that difference—as well as the expenses associated with deportation—into the settlement we ultimately reached with the employer.

The settlement provided much-needed financial relief for the Chaundhry family, but it couldn’t prevent their deportation. We had been advised of that early on and openly shared that reality with Sandeep.

To India and back

The Chaundhry family (including, thankfully, the boys) were forced to return to India but maintained the hope of one day coming back to America. Sandeep loved this country and what it stands for. He appreciated the professional opportunities it offered him, and he wanted his sons to be raised and educated here.

A couple months after resettling in India, Sandeep wanted to begin the process of attempting to return to the United States. He went to the U.S. consulate and presented all the documentation from his case, including the Lozada affidavit.

Then he was stunned.

The consulate officials looked at his application and his evidence and stamped approval for his return to the U.S., waiving the ten-year waiting period. He found an employer who would sponsor him for a green card, giving him the right to permanent residence and, eventually, the opportunity for naturalization.

Sandeep is working again in the United States. His family is now living in Des Moines, Iowa and we keep in regular contact.

If you have been injured through legal or medical malpractice that calls for civil litigation, don’t hesitate to give us a call. We’re here to help.

*Names in this article have been changed to protect our client’s privacy.

 The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

Overcoming Uninsured/Underinsured Insurance Complexities and Legal Malpractice

For Robyn*, it was one spirit-crushing event after another: first, a traffic accident left her with tens of thousands of dollars in medical debt and physical scars she would carry with her for the rest of her life; then, soon after, the passing of her husband.

Because the motorist who struck her car was uninsured, Robyn needed strong representation from a civil litigation attorney. What she got from her first attorney was something considerably less.

Injured by an uninsured motorist

When a policeman observed a car running a stop sign, he pulled the car over and issued a citation. The driver explained that the traffic violation was out of his control, and that his brakes were failing. The driver was then instructed by the officer to drive directly home. If only he had.

Hours later, the driver’s faulty brakes allowed his car to careen, uncontrolled, into the car Robyn was driving. She suffered multiple neck injuries and would be scarred for life as a result. She would also start to pile up significant medical bills, with no way to pay them. To add insult to injury, she discovered that the driver was uninsured.

And just when it seemed things couldn’t get worse for Robyn—her husband passed away.

A victim of civil litigation neglect

Overwhelmed, Robyn hired a local attorney to help her manage the aftereffects of the accident. The attorney was a former county commissioner who, unknown to Robyn at the time, was under investigation for embezzlement. He would later be acquitted, but his involvement in the investigation and the subsequent trial were contributing factors to his neglect of Robyn’s case. We also discovered that he was battling alcoholism.

Whenever she inquired about her case, the attorney told her that everything was proceeding normally. After more than two years, Robyn grew tired of the delays (while her medical bills were mounting). She approached us to look at her case.

When we looked at the court docket, we found that almost nothing that should have been done on Robyn’s behalf had in fact been acted upon. Her attorney had repeatedly failed to file proper documentation, and deadlines had been missed without her having been notified—a lapse on the part of her attorney that was critically detrimental to her position. Robyn then fired her attorney and hired us to salvage her case.

Starting over to remedy legal malpractice

Her case had been so mishandled that we had no choice but to dismiss it entirely and start over. It took nearly a month to recover her file from her previous attorney, and we unearthed the fact that Robyn had been eligible for substantial uninsured/underinsured motorist coverage from her own insurance provider.

Though the deadline had passed for filing a claim with her provider, we pushed for filing anyway, alerting the insurer that her previous attorney had failed to provide her with proper notice of the filing deadlines. Persistence paid off (as it frequently does, especially when you are pushing for the right thing to be done). We also sued the other attorney for malpractice and won a settlement that, combined with the insurance settlement Robyn received, allowed her to pay her medical bills.

Looking out for personal injury victims

Our practice exists, in large part, due to the prevalence of neglect, which too often results in someone’s injury. It can come in many forms, from an automobile’s faulty braking system to somebody ignoring a police officer’s instructions—both of which contributed to Robyn’s injuries.

But neglect can also include harming somebody by failing to do what’s best—and what’s right. Robyn’s suffering started with the neglect of an uninsured motorist.  Her suffering was prolonged by the neglect of an attorney who failed to provide her with the most basic representation.  And, finally, her suffering continued because of an insurance company that promised coverage and then tried to deny it by hiding behind technicalities like filing deadlines.

The attorney and insurance provider should have had Robyn’s best interests as their first priority, yet it took legal pressure to compel them to do the right thing for a victim who deserved better.

We take legal malpractice very seriously. Attorneys should be held accountable for their actions and decisions, especially when they veer from the standards that are the foundation of our profession. By pursuing those who fail to uphold those standards, we protect not only our profession, but also our community as a whole.

If you suffer a personal injury that calls for civil litigation, don’t hesitate to reach out to the experienced Ohio trial lawyers at Cooper & Elliott for legal assistance. We’re here to help.

*Names in this article have been changed to protect our client’s privacy.

 The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

 

Restoring a Young Girl’s Future After a Disfiguring Dog Attack

One family’s holiday get-together quickly turned into an emergency situation when a visitor’s dog attacked a young girl. It’s something that could happen anytime a dog is around an unfamiliar child—that much is easy enough to understand. What’s not so simple in a child injury or personal injury case, is determining how to assess the scope of the damage, and how to hold the responsible party accountable for it.

The dog bite and lasting scars

The Morrison* family—Mitchell, Gwen, and their 3-year-old daughter, Natalie—was looking forward to moving from South Carolina to northeast Ohio to live closer to family. They visited Ohio to stay with Gwen’s mother over the Christmas holiday season, but what should have been a time of celebration quickly turned tragic.

Also visiting Natalie’s grandmother were her aunt, her aunt’s boyfriend, Joe, and his dog. Like many little girls, Natalie loved dogs and asked Joe if she could pet his. Joe assured Natalie that his dog was friendly and it was safe to pet him. It turned out that he was sorely mistaken. Just as Natalie began to reach out, the dog lunged at her and bit her repeatedly.

Natalie was rushed to the hospital with serious wounds on her face, chest, shoulder, and side. More than 50 stitches were required to close the lacerations on her body.

Identifying responsibility for a personal injury

In some ways Natalie was fortunate. Despite the severity of the attack, doctors were confident that her facial lacerations would heal and leave little trace of the injury. Unfortunately, the prognosis was not as optimistic for the scars on her arm and torso, where there would be prominent disfigurement for the rest of her life.

It’s possible that the dog had a history of aggression, or he may simply have been startled, but one thing was clear: Even though the attack occurred on the grandmother’s property, it was Joe, the dog’s owner, who should be held responsible. Under Ohio law, if a dog injures someone, the dog’s owner is liable for that injury. So, after returning to South Carolina, the Morrisons hired a local attorney to pursue a personal injury action.

It just so happened that Joe held a homeowner’s insurance policy that clearly stated it would cover damage done by dogs, which qualify as property. His insurance company, not surprisingly, disagreed. It consistently thwarted any attempts made by the Morrison’s first attorney to recover on the policy. It simply refused to comply. Faced with daunting medical bills and feeling quite hopeless, the Morrisons reached out to us for help.

Ohio civil litigation attorneys succeed outside the courtroom

In this circumstance, we preferred to negotiate directly with Joe’s insurance company instead of resorting to a lawsuit and trial. Because Natalie was only 3, we did not want her to have to relive the details of the attack through depositions and courtroom testimony.

Being experienced in child injury cases, we took into consideration the special challenges that accompany this type of case: What is just compensation? How do you value the long-term effects of personal injury for someone so young? How could Natalie express—or, at her age, even be able to imagine—how such prominent body scars would impact her confidence and self-image as she grew older?

Restoring a disfigured girl’s future

Ultimately, we were able to persuade the insurance company that effects from the scars on Natalie’s body would have long-term effects that were more than just physical. We presented interviews from women who had suffered similar disfiguring injuries when they were young, to provide perspective on the emotional challenges Natalie might face as a teenager and adult. As a result, the insurance company agreed to a substantial settlement that covered Natalie’s medical expenses.

The compensation we achieved went beyond those medical expenses, as it should have. It also had to take into consideration the trauma of the event, a shock shared by the entire family, with unknown long-term effects. And because Natalie was so young, the settlement could be expected to grow substantially and provide a strong financial foundation as she approached adulthood.

In the end, we were happy to achieve results that will give Natalie and her family the best chance of healing from their experience as they navigate the effects of the attack going forward. Beyond that, we were able to send a message to the insurance company that it could and would be forced to honor the details of its policies.

If you require assistance with a child’s personal injury or wrongful death case, don’t hesitate to reach out to the Ohio civil litigation attorneys at Cooper & Elliott. We’re here to help.

*Names in this article have been changed to protect our client’s privacy.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

 

One School’s Negligence Perpetuates Teacher Misconduct

As Ohio civil litigation attorneys representing injured children, we have learned that “injury” has many different forms. Sometimes wounds are obvious—in other cases, the pain is emotional and less obvious, but no less damaging to young victims.

This is especially true where parental or teacher misconduct is involved. Sometimes, the mental and emotional damage caused by the wrongdoing can be further exacerbated by shame or perceived reputational damage when the identities of victims are made public.

In the case described below, it was our responsibility to bring teacher misconduct and its harm to light—and do so without causing further harm to the victims.

A well-loved teacher crosses the line

Our firm represented the families of several young girls who had been victimized to varying degrees by their elementary school teacher, Matt Dixon*. Mr. Dixon was beloved by his students and well-respected by the school system and fellow faculty members. Fortunately (in this case), the abuse did not extend to direct sexual relations with the students. Suffice it to say that Mr. Dixon’s relationship with the girls still fell dangerously outside the realm of normal classroom interaction and his actions exceeded what would be considered acceptable behavior between a teacher and school-aged girls.

What’s more disturbing, is that these were not the first incidents of teacher misconduct Mr. Dixon had been involved in.

Avoiding the warning signs of teacher misconduct

Even in his previous position at a different school, there were accusations made against Mr. Dixon of engaging in inappropriate behavior with female students. Like many predators, he identified particularly vulnerable girls and groomed them to become increasingly receptive to his “special” attention: holding them, flattering them, bringing them to his home, and engaging in after school activities with them without parental knowledge. Once groomed, he continued personal, out-of-school relationships with the girls throughout grade school, though they were no longer his students.

For nearly a decade, Mr. Dixon thrived in the classroom despite parents’ reports of misconduct. He had an outstanding record in the classroom and was very popular among his peers and students. Because of his reputation, the school system failed to recognize the signs of his inappropriate behavior. The school’s attitude was that such an accomplished teacher would never do anything to jeopardize the well-being of his students.

Though the school was aware of these reports, it continually dismissed them and no official documentation was ever added to Mr. Dixon’s file.

A civil litigation resolution without further child injury

When we were approached by the families, we set to work immediately to resolve the issue in a way that best suited their needs, including protecting, as much as possible, the anonymity of the girls involved.

That meant first taking steps that would avoid a lengthy—and very public—lawsuit.

Once we gathered the facts of the case (including recovering video tapes of some of Mr. Dixon’s activities with the girls), we determined that the best way to protect the confidentiality of the students and their families was to negotiate directly with the school system. Instead of a day in court, the parents desired confidentially. They wanted to challenge any claims of ignorance on the part of the school system and compel it to accept responsibility for its inaction and failure to protect the children entrusted to its teachers.

We met multiple times with the superintendent, presented a list of demands, and talked through the issues of the case.

Ultimately, we were able to avoid filing a public lawsuit by negotiating a pre-suit resolution that brought about settlements between the school board and the families, and dismissal of the teacher. (He was subsequently convicted of criminal charges and is serving time in prison.) The negotiations also resulted in policy changes to the school system’s guidelines in order to more efficiently identify teacher predators and protect vulnerable students.

Protecting children’s futures

Civil litigation cases involving children require great sensitivity in terms of the long-term impact on the families and victims involved. Cases such as this one need additional care to preserve, as much as possible, the privacy of the victims.

The daughters of the families we represented were able to maintain their anonymity, remain in the same school, and resume their normal lives as children and students without being labeled as victims of sexual abuse.

The parents, meanwhile, were able to express their justifiable outrage with the school authorities, effecting changes in school policy that were necessary and reasonable.

In the end, justice was served in multiple ways. First, by protecting our clients’ children and halting their teacher’s behavior. Also, by helping to make schools safer for future students (this latter point is also therapeutic for the families whose lives had been upended by such a significant breach of trust). This multi-faceted result is the kind we strive to achieve for all our clients and their families.

If you require assistance with an injury or wrongful death case involving a child, don’t hesitate to reach out. We’re here to help.

*For the protection of the children involved, names of any participants in this case have been omitted and certain details have been withheld.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

Honor and Redemption for a Wounded Deputy Sheriff

Law-enforcement personnel are our line of protection against crime and misconduct. They’re tough, self-reliant, and trained to handle a variety of difficult situations. But when it comes to seeking justice in the legal system, police need representation just like the rest of us.

Transferring a dangerous prisoner

Katherine Thompson* was a dedicated deputy who had been working for the county sheriff’s department for several years. One day, she was instructed to pick up an inmate at a prison facility and transfer him to the county courthouse. It was supposed to be a routine procedure.

Katherine had been assigned to transfer Derek Randall,* a career criminal who had served a 10-year sentence for shooting a Cleveland-area police officer. After his release he drifted around Ohio committing various crimes, until his attempt to rob a convenience store backfired. In a combined effort by the store owner and angry citizens, Randall was detained long enough for the police to arrive and make an arrest.

During the attempted robbery, the convenience store owner fired a shot at Randall. The bullet just grazed Randall’s head and he was taken to a hospital to receive medical attention for the wound before being taken to jail. When doctors determined he was fit to be released, he was discharged in a wheelchair (which is common for anyone who has suffered a head injury).

It is standard procedure for prison personnel to ask a number of questions to assess the inmate’s psychological and physical health during the admittance process. When Randall was questioned about his wheelchair, he told them he’d been shot and was unable to walk. Randall was allowed to keep his wheelchair.

When the prison doctor examined Randall, he found no physical reason for him to need the wheelchair. He noted in Randall’s medical record that he suffered from “hysterical paralysis.” The doctor then made a serious mistake: He failed to apprise anyone—the guards or other medical staff—of Randall’s suspicious paralysis.

When Katherine arrived at the facility to pick up Randall, she too was unaware of his “paralysis.” She asked about his condition, but she was simply told that the doctor said he needed a wheelchair.

Under attack

Katherine drove Randall to the courthouse’s secure underground parking area, helped him out of the van (with his wheelchair), and accompanied him to the security door—following procedure every step of the way.

As they waited at the door, Randall suddenly sprang up out of the wheelchair and grabbed for Katherine’s gun. His need for the wheelchair had been an act all along.

Katherine wrestled with him to keep possession of her firearm and, in the process, managed to call for help on her radio. Randall overpowered Katherine and began pounding her head into the concrete.

Before Randall was able to wrest the firearm from her, Katherine released her gun’s ammunition clip. That act of composure saved her life. Later, video footage would show Randall standing over Katherine, aiming the gun at her head, and pulling the trigger—but because the clip was released, the gun jammed and did not fire.

Katherine lost consciousness, and Randall escaped with her gun and ammunition clip. As he searched for a way out of the parking garage, he encountered Berry Colston*, a young man who had just left the courthouse after paying a traffic ticket. Randall took Berry hostage at gunpoint and demanded that he drive them out of the courthouse.

Once outside, they heard a helicopter—the police were out in full force searching for Randall. As he monitored his own manhunt on the radio, Randall learned the police had a description of Berry’s pickup truck. He needed to change vehicles. After parking near a car Randall thought he could steal, he told Berry to crouch down so that he wouldn’t be able to see and identify the next getaway vehicle. Randall then shot Berry twice in the head.

In the end, police were able to track and arrest Randall—they eventually found him hiding in a tree. Charged with the assault of Katherine Thompson and murder of Berry Colston, Randall was convicted and sentenced to death.

Painful aftermath

Katherine suffered serious physical injuries from the assault, including broken bones in her face. But there were psychological wounds as well. In addition to the terror of having been physically assaulted and almost killed, Katherine felt deep remorse that her gun was the weapon used to kill Berry Colston. The sheriff’s department, embarrassed by the media’s attention, insinuated that the escape had occurred because Katherine hadn’t performed her job properly—which left her with feelings of anxiety and betrayal.

Burdened by the psychological toll of the incident and its aftermath, Katherine saw no alternative but to retire from law enforcement. In need of legal representation regarding workers’ compensation and medical bills, she contacted us.

What went wrong? Civil litigation attorneys unearth the facts

Other civil litigation attorneys may have shied away from this case. A deputy filing suit against the sheriff’s department could be seen by some as Katherine’s attempt to blame somebody else for Randall’s escape. We took the case, in spite of its potential difficulties, and when we dug in to the facts, it became clear that Katherine had not only performed her job admirably under the circumstances, but was being scapegoated for this tragedy.

What immediately stood out to us was the negligence of the doctor at the jail facility. He knew there was no physical reason for Randall to need a wheelchair, yet he failed to notify other medical and corrections staff. As a doctor working in a prison, this information should have been a serious cause for alarm.

The sheriff’s department was also to blame for its failure to follow its own procedure. First, it did not provide critical information about the prisoner to Katherine. She should have been made aware of Randall’s previous criminal record, including his time served for shooting a police officer. Second, sending Katherine alone to Randall’s transfer was a major breach of protocol.

This point was significant, as it related to a troubling problem we discovered in the sheriff’s department: It had the reputation of being a good old boys club that treated female deputy sheriffs unfairly. There were complaints, for example, of female deputies routinely being assigned tasks nobody else wanted to do. Assigning Katherine to do the transfer without a second officer put her in an awkward position: She could either follow her superior’s directions, even though they went against established procedure, or she could ask for the required second officer to assist her, in which case other officers would imply that she couldn’t handle the task on her own.

The sheriff’s department’s hostility toward women was further evidenced in the aftermath of the escape, when their spokespeople suggested that if a man had conducted the transfer instead of Katherine, none of this would ever have happened.

Given the surprising information we uncovered in discovery, we widened the lawsuit to include the sheriff’s department and the negligent prison doctor.

The justice Katherine deserves

The case went to trial and the jury sided with Katherine. She was awarded a significant sum, which helped her get back on her feet financially and start a new career outside of law enforcement.

The ability for Katherine to sit in front of a jury and explain her side of the story had a profound positive effect on her—even more so after the jury essentially said through its verdict, “We hear you, and we believe you.” That kind of vindication and acceptance is invaluable, especially considering the guilt Katherine had been struggling with over Berry’s death.

The verdict also offered a benefit to the community: As a consequence of Katherine’s lawsuit, procedural changes were enacted to ensure that necessary medical information will be provided by the prison to law enforcement personnel before prisoner transfers. Hopefully there will never again be an incident like this in our community.

The road to healing

Katherine, we are pleased to say, is doing much better now. After leaving law enforcement, she started a successful real estate business. We’ve been in contact with her since her career change, and she’s told us the work we did for her changed her life. Feedback like that is gratifying beyond measure. It’s what motivates us to do this kind of work.

People often assume that civil litigation attorneys are solely concerned with obtaining money for their clients, but, as can be seen in Katherine’s case, true justice involves much more than awards or settlements. Justice is about restoration and healing. It’s about helping people who have been knocked off their path by terrible, unanticipated circumstances, then helping them recover so they can continue on that path—or venture on a new one.

We often work with clients who suffer from debilitating feelings of guilt or isolation after an unexpected tragedy, even though they’ve done nothing wrong. We spend a lot of time talking with our clients, and letting them express how they feel. Combine that with the opportunity to tell their story to a jury and have their innocence reaffirmed, and you have a powerful recipe for healing.

 

*Names in this article have been changed to protect our client’s privacy. 

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.