This is a case that only a federal litigator will love, including trial and appellate lawyers. The Supreme Court is telling us when a party that files an unsuccessful motion for summary judgment can take up those issues on appeal after losing at trial even if they fail to preserve their objection to that issue during trial. The bottom line is that purely legal issues may be raised on appeal even if the party did not assert an objection at trial.   The case is Dupree v. Younger, issued on May 25. The decision is unanimous, which is often the case when the Supreme Court interprets the Feder ..read more

The Court of Appeals has sustained a police misconduct verdict in which the plaintiff claimed a Syracuse police officer subjected him to excessive force, false arrest, and malicious prosecution. But the Court also held that plaintiff is not entitled to punitive damages for these civil rights violations. The case is Franco v. Gunsalus, a summary order issued on May 23. I briefed and argued the appeal. Fred Lichtmacher, Esq., tried the case. The case began when Franco showed up to a party in Syracuse just as the crowd was dispersing. The officer claimed that he gave a loud order to disperse and ..read more

This is a wrongful death case against Correctional Medical Care, Inc. An inmate died at the Schenectady County Correctional Facility. The trial court dismissed the case after crediting the defendants' medical expert and finding plaintiff's medical expert report to be inadmissible. The Court of Appeals reverses and the case returns to the district court. The case is Richardson v. Correctional Medical Care, Inc., a summary order issued on May 17. When the trial court excludes evidence at the pre-trial stage, the standard of review is "abuse of discretion" which is as deferential to the trial cou ..read more

This sexual orientation discrimination case went to trial in the Northern District of New York. The plaintiff is a corrections officer who alleges she suffered retaliation for complaining about discrimination in the workplace. That claim went to trial but the jury found for the State of New York, ruling against plaintiff. The Second Circuit affirms after rejecting plaintiff's claims that the trial court improperly excluded certain evidence that would have bolstered the claim. The case is Orsaio v. New York State Dept. of Corrections and Community Supervision, a summary order issued on May 12 ..read more

E. Jean Carroll's recent $5 million jury verdict against former President Trump for sexual abuse and defamation had a notable footnote: the jury that Judge Kaplan empaneled at the U.S. Courthouse was anonymous; their identities unknown to the parties and to the public. This is unusual. Anonymous juries are sometimes empaneled in high-profile criminal cases involving organized crime, terrorists, or gang members. But in a civil case? The case is Carroll v. Trump, 22-cv-10016 (LAK). The jury decision was issued on March 23. See 2023 WL 2612260 (S.D.N.Y. 2023). The anonymous jury may predicate Tru ..read more

The $5 million sexual abuse and defamation verdict that a New York federal jury entered this week against former president Donald Trump had a few interesting evidentiary rulings that Trump's attorneys will almost certainly challenge on appeal. I discuss them in this blog post. The case is Carroll v. Trump, 22-cv-10016 (LAK), 2023 WL 2441795 (S.D.N.Y. March 27, 2023). This ruling resolved the motion in limine, in which the parties asked the trial court rule on evidentiary issues prior to trial so that the trial itself does not get bogged down in objections that delay the presentation of evidenc ..read more

This case reminds us how difficult it is to bring a false arrest claim under the Constitution. Police officers can involve qualified immunity and avoid the lawsuit altogether. They can also win the case by showing there was probable cause to make the arrest. These defenses present significant roadblocks for plaintiffs.  The case is Richardson v. McMahon, a summary order issued on April 27. This is a domestic violence case where the female victim called the police. The police officers received statements from two women suggesting that plaintiff had assaulted Candice Binns. One of the eyewi ..read more

The Court of Appeals has reinstated a lawsuit filed by a former basketball player who was removed from Madison Square Garden while attending a Knicks game as a spectator. The claim was for assault and battery. The case is Oakley v. MSG Networks, a summary order issued on May 5. It all happened on February 8, 2017. The case was dismissed on a summary judgment motion. The Court of Appeals finds that jury may in fact find that Charles Oakley was subjected to excessive force. When the Second Circuit first ruled on this case in 2020, in reversing the Rule 12 motion to dismiss, it stated that “[b]ec ..read more

The Court of Appeals holds that a mental health counselor from Vermont cannot bring a free speech challenge to the New York requirement that such therapists obtain a license to practice in New York.  The case is Brokamp v. James, issued on April 27. In New York, practicing mental health counseling without a license is a class E felony, punishable by a prison term of up to four years and a fine. In 2002, the State Legislature enacted a licensing requirement for such counselors to protect the public from unprofessional and unqualified counselors. Plaintiff challenges this requirement under ..read more

Some Title VII discrimination cases are harder than others. This case is one of the harder ones. Not because the plaintiff has no case, but because the legal standard guiding this dispute has a built-in barrier that increases the plaintiff's burden of proof. The case is Martinez v. City of Stamford, a summary order dated May 1. Plaintiff says the City hired two non-Hispanic white police officers to Sergeant over him, and that the reason for this adverse decision was racial discrimination. The district court dismissed the case on summary judgment and plaintiff appeals. The problem with failure ..read more