ELDER ABUSE
As Easy as Taking Candy From a Grandma
Peggy Greer v. Professional Fiduciary Inc., et al.
Poor old Peggy Greer sat by helplessly and watched her savings dwindle.
In March 2005, a Hennepin County judge ruled that the 86-year-old Greer, who was addicted to painkillers and suffered from dementia, was incapable of making decisions for herself, and appointed Professional Fiduciary Inc. as Greer’s guardian and Wells Fargo Elder Services as her conservator. Between the two, more than $600,000 of Greer’s money was spent on health costs, attorney fees and other expenses, despite protests from Greer and her family, who saw the spending as excessive and unjustified.
Greer won her rights back in July 2007 after her assets were spent. In an attempt to get her money back, she filed suit against her guardian and conservator for failing to protect her assets, heed her wishes and look after her best interests.
Professional Fiduciary filed a motion to dismiss, claiming in part that Greer’s allegations are an impermissible attack on prior probate orders.
“The volume with which a party or its advocates uses in conveying and communicating with others is not necessarily reflective of the viability of a claim,” says Mark Solheim of Larson King, who represents Professional Fiduciary. “This is a relatively straightforward case that we believe will be resolved on a motion to dismiss. If not, we are prepared to try the case.”
Greer’s attorney had no comment regarding the status of the case. —A.J.
EMPLOYEE RIGHTS
Hold Me Closer, Litigious Dancer
Dantzscher et al. v. Kladek Inc. et al.
Apparently the $1 bills didn’t add up to all that much. Dancers at King of Diamonds Gentlemen’s Club in Inver Grove Heights have filed suit against the company, alleging it is violating state and federal wage-and-hour laws.
King of Diamonds is being accused of intentionally misclassifying entertainers as independent contractors, which requires the dancers to pay fees to come to work and not be paid any wages from the company. The entertainers claim they have been paid solely in tips from customers.
Plaintiff’s attorney Michelle Drake of Nichols Kaster says the strippers are no different than pizza delivery drivers or waitresses. “The reality of the employment relationship is that the entertainers are in fact employees and not independent contractors,” Drake says.
“The legal issues presented are very standard and weigh very strongly in my clients’ favor,” Drake told The National Law Journal. “Under federal law, employees cannot be required to pay their employer to go to work, and employees can’t be forced to work for only tips any more than waitresses can.”
Both King of Diamonds management and an entertainer involved with the suit did not return calls for comment.
The case has been filed in state court. No hearing dates have yet been set. —A.J.
PATENTS AND INTELLECTUAL PROPERTY
You Mean the Files Are Inside the Computer?
Siemens v. Seagate Technology
You can’t see it. You can’t feel it. But it’s worth hundreds of millions of dollars.
Siemens AG made a $160 million claim against Seagate Technology, alleging a patent infringement by Seagate for its use of a Giant Magnetic Resistance (GMR) head, a sensor so small that it’s invisible to the naked eye, that allows data stored in computer hard drives to be read. The technology is used in Seagate hard drives of all sizes.
Seagate’s defense was simple. IBM already had a patent for the technology in question, and Seagate had a license from IBM to use it.
“Siemens had a patent for a tiny sensor that had five layers. IBM had a patent that had six layers,” says Seagate’s attorney, David Gross of Faegre & Benson. Seagate is using the six-layer technology from IBM, and has a license from IBM to do so, Gross says.
Stuart Parkin, the IBM engineer who invented the GMR elements, testified in court that Seagate’s engineers had licensed the sensor technology from IBM before the Siemens product was developed.
Attorneys for Seagate also argued that Siemens should not be able to enforce its patent because two professional papers published by the IBM inventors made the technology in Siemens’ patent obvious.
“The Siemens lawyers accused Seagate of infringing 10 claims of a Siemens patent,” Gross told the Star Tribune. “The jury found all 10 claims invalid.”
The jury not only found in favor of Seagate, but also found that Siemens’ patent was invalid because IBM had the patent first, meaning that Siemens’ patent is now unenforceable in the United States.
Siemens has filed an appeal in federal court. “They have to reverse the judge on two different issues because we won on two different grounds,” Gross says. “It’s a pretty uphill battle.”
A decision is expected in 2010. —A.J.
The Name Blame Game
Bank of America v. U.S. Capital and Trust Inc.
How easy is it to confuse U.S. Capital and Trust Inc. with U.S. Trust and U.S. Trust Asset Management? Way too easy, according to Bank of America.
Bank of America, the second largest bank in the country, filed suit against U.S. Capital and Trust Inc. for trademark infringement, alleging U.S. Capital and Trust Inc.’s name was too similar to some of its trademarks, which include U.S. Trust and U.S. Trust Asset Management.
U.S. Capital and Trust Inc.’s total managed assets weren’t even half of a percent of what Bank of America has, says Eric Orlosky, former co-owner of U.S. Capital and Trust Inc.
“[Bank of America] was under the impression that our names were so similar that we would get clients because of them,” Orlosky says. “They believed people would look for U.S. Trust and find us instead, even though all of our clients had been acquired through referrals.”
“As a trademark owner, you must police your trademark. If you don’t, you risk losing it,” Barbara Grahn, of Oppenheimer Wolff & Donnelly, who helped represent Bank of America, told the Minneapolis/St. Paul Business Journal. “If there are two, three, four, five people using it, you no longer have a trademark.”
“I think we would have won the case, but there was no possible way we could afford to fight them,” Orlosky says. “Their lawyers priced us out.” Fighting the allegations would have cost more than $1 million, he says.
The case was settled outside of court in February 2009. Bank of America took the company’s name and forced it to dissolve, but did not seek any financial compensation. —A.J.
Medical Technology Trauma
Elkin v. Mayo Clinic et al.
Peter Elkin, a nationally known physician, developed software while working at the Mayo Clinic that revolutionized medical record keeping and billing and the identification of diseases related to terrorist acts. The technology became commercialized in 1999 through the development of a company called Conceptual Health Solutions (CHS).
Mayo Clinic, which says it owns all inventions and discoveries that result from its research projects, claims to have granted exclusive rights to CHS to market the software in exchange for equity interest and royalties. A portion of those royalties were allegedly promised to Elkin.
So when Elkin left his job at Mayo Clinic for Mount Sinai Medical Center in New York in 2008 and wanted to bring the technology with him, a legal battle erupted over the rights to the software.
Mayo filed suit against Elkin, claiming he tried to undermine commercialization of the software, and alleging breach of contract and fiduciary duty and trade secret misappropriation. Mayo has allegedly refused to pay royalties promised to Elkin until litigation of the matter is complete, according to an unnamed source close to the case.
Elkin filed a countersuit, claiming Mayo Clinic made millions of dollars from the technology without paying any royalties to him. He also alleges the clinic attempted to suppress his research once he left the clinic by threatening civil and criminal sanctions if the software was discussed publicly.
Elkin says he developed the natural language processor—the main part of the software and the heart of the litigation—before his tenure at Mayo. He argues he assigned a few specific pieces of the system to Mayo but not the portion that uses the natural language software.
Mayo policies allow inventors to own their inventions developed before coming to Mayo, provided they are disclosed to Mayo at the time of hiring.
Mayo Clinic representatives declined to comment.
Elkin filed a motion for summary judgment in August 2009 in response to the trade secret misappropriation allegations, in which he’s accused of stealing software; he argues he had permission from proper committees at Mayo to take the software and its source codes with him after leaving the organization.
At press time, no trial dates had been set.
—A.J.
PRIVACY
Newborn Babies Cry Out for Privacy
Bearder et al. v. State of Minnesota and Minnesota Department of Health
Memo to state from parents: Keep your hands off my baby’s DNA.
The Citizen’s Council of Health Care (CCHC) filed suit on behalf of nine families against the Minnesota Department of Health, alleging that the department is in violation of the 2006 state genetic privacy law for the collection, storage, use and dissemination of newborn blood and baby DNA.
Minnesota passed a statute in 2006 making it illegal to hold on to newborn genetic information or blood spots for more than two years without parental consent. But that hasn’t been happening, says Randall Knutson, partner at Farrish Johnson Law Office in Mankato.
The suit alleges that “as of Dec. 31, 2008, Minnesota Department of Health had stored 819,282 dried blood spot samples, had stored 1,567,133 records of the results of newborn genetic screening, and had used 52,519 dried blood spot samples for research.”
“None of these activities are authorized by law,” Twila Brase, CCHC’s president, said in a statement. “Parents and newborn citizens have been deprived of their lawful privacy and DNA property rights.”
“The Newborn Screening Program is specifically authorized by Minnesota statutes,” says Dave Orren, chief legal counsel for the Minnesota Department of Health. “The program is operating within the law.
“The statute also gives parents the right to have the specimens destroyed after being tested. There is also a procedure for that,” Orren says. “If they don’t properly follow procedure, we have been storing them for program operations.”
According to the Minnesota Department of Health, more than 70,000 newborns are tested every year, and the screening program identifies 140 babies a year that can be saved from death or disability through early treatment.
The Minnesota Attorney General’s office made a motion to dismiss the case. A hearing was set for Sept. 18. The state could face fines of $1,000 to $15,000 per violation if found guilty. —A.J.
The Door’s Open, Whether You Want It to Be or Not
Robert McCaughtry et al. v. City of Red Wing
No search warrant. No suspicion of code violations. No consent. Those are the conditions under which the city of Red Wing, using “administrative warrants,” can conduct inspections of the properties of rental homeowners in Red Wing.
“This case is about the power of government to enter the homes of ordinary law-abiding citizens without individual probable cause or any individualized suspicion that there is something wrong,” says Jason Adkins, a staff attorney for Institute for Justice Minnesota, which is working with Red Wing rental owners to fight the policy.
“In our opinion, they are using the ordinance as a way of doing frontline police work,” says Adkins. “I think our suspicions were confirmed in their latest amendments to the ordinance in which they specifically directed housing inspectors to report evidence of meth labs.”
That suspicion is false, says the city’s attorney, John Baker of Greene Espel. “The purpose of the warrants is simply to determine whether or not the condition of the rental units are in compliance with the city’s housing maintenance code,” he says.
Institute for Justice Minnesota Chapter has filed a motion for summary judgment in Goodhue County District Court seeking to prevent the city from obtaining administrative warrants.
Institute for Justice has already defeated two of the city’s applications for administrative warrants. This is the third time the city has amended the ordinance.
“They’ve been trying to whittle away at the ordinance to try to correct any constitutional defects,” Adkins says. “But they are not getting at the heart of the problem, which is that the inspection program authorizes deeply invasive searches that violate people’s Fourth Amendment and state constitutional rights.”
Red Wing disagrees. “In order to seek a more restrictive interpretation of the Minnesota constitution, a party must establish that criteria were laid out by the Minnesota Supreme Court several years ago,” Baker says. “The Institute has been completely unable to satisfy those criteria.”
No decision had been reached as this issue went to press. —A.J.
RELIGION
The Tithes That Bind
Christ’s Household of Faith v. Ramsey County, Susan Gaertner and Robert Fletcher
Michael Rooney has given everything to his church. Will the church do the same for him?
Christ’s Household of Faith (CHOF), a religious community in St. Paul whose members live communally, surrendering personal possessions and income to the church, filed a federal lawsuit against Ramsey County after the Ramsey County District Court ruled the church was responsible for the alimony and child support payments of one of its members.
CHOF member Rooney was ordered to pay $600.52 in child support and $250 in alimony monthly by a Ramsey County judge after his divorce from Patricia Rooney. The court directed CHOF to make the monthly payments on behalf of Rooney as the “payer of funds.”
“Donald Alsbury, pastor of the church, has reiterated his commitment to not being able to pay the fees, consistent with his religious conscience,” says CHOF’s attorney, Steven Aggergaard of Bassford Remele.
Judge Michael Fetsch of Ramsey County found CHOF to be in contempt of court for not complying with court orders. “It’s in the enforcement stage now,” says Darwin Lookingbill, director of the Civil Division for the Ramsey County attorney’s office. “If they don’t comply, somebody is going to jail.”
Pastor Alsbury appeared in court on a contempt charge, maintaining the position that he cannot comply with court orders based on his religious beliefs. The judge did not agree with his arguments, and Alsbury may be placed in the Ramsey County workhouse until CHOF complies.
The church was denied an emergency appeal in July 2009. It then filed an appeal with the Minnesota Court of Appeals, which remained pending at press time. —A.J.
There’s One for You, 19 for Me
United States of America v. Living Word Christian Center
Any taxpayer will tell you that the Internal Revenue Service’s tax regulations can be tough to figure out. Now a Minneapolis church says that even the IRS itself is having a hard time following its own rules.
First, the Living Word Christian Center (LWCC) and its pastor, Mac Hammond, were summoned for examination by the IRS when Marsha Ramirez, director of Exempt Organizations Examinations for the IRS, launched a church tax inquiry after reports that the church was engaging in conduct that could jeopardize its tax-exempt status, including improperly conferring economic benefits on its pastor.
The agency requested financial documents from the church, specifically those pertaining to church loans to Hammond of nearly $2 million and church payments to Hammond to rent a hangar for the organization’s jet. Attorneys for the church refused to hand over any materials, claiming the IRS launched the inquiry improperly, without authorization from a high-level official.
“We could not comply with the summons because the inquiry was not properly commenced,” says LWCC’s attorney Walter Pickhardt of Faegre & Benson. “There has to be a very substantial reason to believe there could be a problem. That decision has to be made at a very senior level; it wasn’t.”
The court agreed and found the examination of LWCC to be invalid.
In the aftermath, the IRS announced a proposed rule in July 2009 that gives the IRS’s director of exempt organizations authority to begin church tax inquiries. —A.J.
THE FIRST AMENDMENT
Ophthalmologist, See Thyself
Charles Yancey, M.D. v. Jeffrey R. Weis, M.D., David R. Hardten, M.D., and the American Academy of Ophthalmology Inc.
Testifying against your peers is a tough way to make friends.
Dr. Charles Yancey learned as much when he appeared in court as an expert witness for a patient in a medical negligence suit. He testified against a fellow eye doctor, Dr. Jeffrey Weis of Northern Eye Institute, for a botched Lasik eye surgery.
When Weis was found liable in the malpractice suit, he and his expert witness, Dr. David Hardten of Minnesota Eye Consultants in Minneapolis, sent a letter to the American Academy of Ophthalmology, claiming many of Yancey’s statements were misleading to the jury.
Yancey caught wind of the letter and filed a defamation lawsuit against Weis and Hardten. “The letter made him look horrible to his peers,” says Yancey’s attorney, John Vail. “They accused him of fabricating testimony under oath.”
A jury found in favor of Yancey on Feb. 12, 2009, and awarded him $350,000 in compensation for future harm to his reputation, mental distress, humiliation and embarrassment. —A.J.
Do Not Pass ‘Go,’ Do Not Collect Bankruptcy Benefits
Milavetz v. United States Supreme Court
A farmer walks into a lawyer’s office and says, “My arm is broken and I can’t work. Now I can’t make money or pay my bills!” The lawyer says, “Spend money to get your arm fixed. Then you can get back to work, make money, and pay your bills.”
Then the lawyer gets criminally charged for giving financial advice. Ba-dum-ching!
“It’s a classic First Amendment case,” says Alan Milavetz of Milavetz, Gallop & Milavetz. “When a person needs help, it’s their right to get advice.” It’s no joke to Milavetz; he says the Supreme Court is getting in the way.
“In the late ’90s [there was an] effort in Congress by big banks to make it harder to file for bankruptcy,” he says.
As a result, the 2005 Bankruptcy Act was passed, which, according to a Congressional Research Service Summary, “prohibits an individual debtor from filing under federal bankruptcy law unless the individual has received a briefing from an approved nonprofit budget and credit counseling service.” In other words, not a lawyer.
“This Act tramples the ability of the lawyer to give advice and inhibits the clients to receive information,” Milavetz says, adding that the idea behind the Act was to prevent people from purposefully racking up a lot of debt and using bankruptcy to escape it. Milavetz says this doesn’t happen much. “There are a couple of cases of that happening, but the majority of people want to avoid bankruptcy.”
Milavetz, who filed a lawsuit challenging the Act, says that legal codes of ethics and the risk of losing their license to practice law will sufficiently dissuade lawyers from filing fraudulent claims; therefore, the criminal penalties of the Bankruptcy Act are unnecessary.
“The act wants to combine law firms with those agencies that say ‘we will help your debt disappear.’ [Those agencies] negotiate a deal with your credit card company,” says Milavetz. “Lawyers provide counseling. Lawyers are lawyers, not debt relief agencies.”
At press time, the case was in the 8th U.S. Circuit Court of Appeals. —C.M.
SMALL TOWNS
Plack’s Flak
Larry Plack v. City of Greenfield
The old Rat Pack standard “Please Don’t Talk About Me When I’m Gone” likely has a new fan: former Greenfield mayor Larry Plack, who sued current mayor Jill Krout and other city politicos after they allegedly spoke ill of him behind his back.
In the suit, Plack accuses the City Council of libel and slander—the members allegedly bad-mouthed Plack and his finances during council meetings— and says Farmers State Bank of Hamel released his private financial information to them.
“The mayor had two of her neighbors ask a bunch of questions at a meeting I was not at,” says Plack. “Apparently they did a lot of work.” The council voted during that meeting to begin motions to get Plack kicked off the city’s charter commission, of which he was the chairman. “I was notified of this by probably a dozen residents that evening and the next morning. [They were] horrified by what happened,” he says.
Plack has sued each defendant, including Farmers State Bank of Hamel, for $50,000.
The case was moved to summary judgment Aug. 20, 2009. Krout, who called the lawsuit a “distraction” in an interview with the Star Tribune, could not be reached for comment. —C.M.
PRISONS
Sick in the Slammer
Ramsey County Workhouse Inmates v. Ramsey County
Getting sentenced to the workhouse shouldn’t also mean a stint in the sick house.
When a new inmate with a bad cough began a stint in the Ramsey County Workhouse on April 17, 2008, the other inmates were immediately suspicious. At least 20 of them signed a complaint to seek action when they saw the inmate looking sickly. Turns out the cough was active tuberculosis, which supposedly did not show up on the inmate’s screening test before his admittance.
The inmate was not immediately isolated and continued to share living quarters. By the time the unnamed inmate’s diagnosis was confirmed and he was taken out of the workhouse, six people tested positive for active TB and 104 tested positive for latent TB.
The inmates filed suit, seeking monetary compensation as well as changes in workhouse policies involving medical staff. At press time, the sides were working on a settlement to ensure a healthier workhouse.
Darwin Lookingbill, an attorney for the county, says, “From the time a case of tuberculosis was identified at the Ramsey County Correctional Facility, Ramsey County’s primary focus has been on the health of individuals who may have been exposed and the health of the public in general. The county is exploring opportunities to resolve this matter in a manner that is consistent with its goal of protecting public health.”
“Counsel for the plaintiffs and the Ramsey County defendants have embarked on an early good faith effort to settle the matter as a class action,” says Robert Bennett of Flynn, Gaskins & Bennett, the lead attorney for the inmates. “It represents a mutual attempt at fairly compensating the victims … and ensuring that their health care needs relating to the unfortunate transmission of this very infectious disease are taken care of now and in the future.” —C.M.
DISCRIMINATION
The Sound of Silence
Bahl et al. v. Ramsey County
Douglas Bahl’s wife was in the hospital, waiting for his visit. He never showed. Didn’t call. But he had a good reason.
Bahl, who is deaf, was en route to the hospital, and after a routine traffic stop went sour, was arrested and taken to jail. Now he’s suing Ramsey County and the city of St. Paul for failure to provide him means to communicate with his wife, Susan Kovacs-Bahl, who is also deaf.
Bahl says he was held in jail for nearly four days before being provided a way to contact family members. He was offered a teletype, but because his wife did not have access to one, the suit claims, he requested e-mail access or an interpreter and was denied. “No one tried to figure out some way to accommodate Mr. Bahl’s needs to communicate with people,” says Rick Macpherson of the Minnesota Disability Law Center, his attorney.
The lawsuit seeks to make the city and county create policies to ensure that hearing-impaired people have the same kind of access to communication as everyone else. He and Kovacs-Bahl are also seeking damages in excess of $50,000 each. —R.B.
Family Guy
Michael Campion and Campion, Barrow and Associates v. The City of Minneapolis and Mayor R.T. Rybak
Michael Campion is upset. He was suspended from his job screening applicants for the Minneapolis Police Department after it discovered he was a board member of the Illinois Family Institute, a nonprofit organization known for advocating against gay rights.
“The government shouldn’t penalize Christian contractors for their beliefs,” says Campion. “Minneapolis officials should base their contracting decisions on experience and qualifications, not on their disagreement with pro-family beliefs.”
Campion is suing the city of Minneapolis and Mayor R.T. Rybak for discrimination.
Campion told the Star Tribune his First Amendment rights are under attack, arguing that the city refused his proposal to screen applicants because of his “association with the Illinois Family Institute and because of his religious beliefs and statements.”
Rybak declined to comment on the ongoing case. —C.M.
POLICE
The Metro Gang Strike Force “Recovering a Car While Latino” Fee
Dagoberto Rodriguez Cardona v. City of Minneapolis and the Metro Gang Strike Force
The average cost of recovering an impounded car in Minneapolis is $158. Imagine Dagoberto Rodriguez Cardona’s surprise when an additional $4,500 was taken from him.
Cardona claims the money was seized by the Metro Gang Strike Force with no explanation or receipt, and now he wants it back. The lawsuit alleges that Cardona and his girlfriend went to the Minneapolis impound lot to pick up their car. They remained at the lot to help another Latino group when five strike force officers arrived and ordered the entire group to put their hands up. Next, Cardona claims, one of the officers searched him and took $4,500.
Cardona is yet to be charged with any crime related to the confiscated money, which he has since proved were wages from a painting job. “This case is about duly licensed police officers taking money from the little guy. Police officers, if you will, thieving,” says Phillip Fishman, Cardona’s attorney. “This case is about police corruption.” Joseph Flynn, attorney for the strike force, could not be reached for comment.
The suit was brought against the strike force in April 2009, before the agency’s funding was cut off by the city.
Cardona’s suit, which was pending at press time, paved the way for a class action civil rights suit against the strike force, filed in July in federal district court in Minnesota by Fishman and Robert Hopper of Zimmerman & Reed. “Out of Dagoberto’s case and publicity in the Star Tribune came five more cases,” says Fishman. “Out of those five cases, I’ve had numerous calls to date for more takings. Two hundred and two people, like Dagoberto, have had their money taken from them, and they have no receipt and no notice of their rights under foreclosure.” —R.B.
I Sued the Sheriff (But I Did Not Sue the Deputy)
Joyce Shockency and John Moore v. Ramsey County and Sheriff Robert Fletcher
When a prospective employer asks where you see yourself in five years, the correct answer is never “Doing your job.” But after 21 years with the Ramsey County Sheriff’s Department, Lt. John Moore was ready to challenge Sheriff Bob Fletcher in the 2002 election.
As a result, Moore and Sgt. Joyce Shockency, one of Moore’s supporters, claim they were retaliated against by Fletcher, violating their First Amendment rights. “The retaliation took the form of job reassignments that were effective demotions, loss of overtime and loss of supervisory responsibility, among other things,” says Nicholas May of Fabian May & Anderson, who, along with Jim Kaster of Nichols Kaster, represented Moore and Shockency. But Fletcher told the Star Tribune, “Their assignments were based on performance, ability and behavior.”
The Ramsey County Board settled with Moore and Shockency for $750,000. “I voted in favor of the settlement,” says Ramsey County Commissioner Jan Parker, “because based on the information we heard from both sides, if we went to court, there was a good chance the outcome would be more costly for the county.” —R.B.
Who Watches the Watchman?
El-Ghazzawy v. Berthiaume et al.
Save some of that extra cash from the pawnshop. You might need it for bail.
When Karim El-Ghazzawy, a Minneapolis family law attorney, tried to sell designer watches to a Pawn America shop in Bloomington last fall, he was accused of fraud and arrested.
The Minneapolis family law attorney, who collects watches as a hobby, had sold four designer Swiss watches to the store in October. When he returned a few weeks later to sell five more watches, the clerk called the police and he was arrested on the spot. However, third-party examination deemed the watches genuine.
El-Ghazzawy has since filed suit against Pawn America, the employee who claimed the watches were fakes and the Bloomington police officer who arrested him.
“They could have had all the watches he sold previously examined. They were all genuine,” says El-Ghazzawy’s attorney, Robert Bennett of Flynn, Gaskins & Bennett. “And they didn’t do so but rather asserted to the police that this individual with a foreign-sounding last name was trying to swindle somebody.”
Jason Hively of Iverson Reuvers, attorney for the police officer, Kay Berthiaume, says her actions were “perfectly reasonable. Based on the information she had, the arrest was lawful and proper.” —R.B.
SCHOOL DAYS
Assault: Not Part of a School’s Phy. Ed. Curriculum
Robbinsdale School District v. Individualized Education Program
On April 24, 2008, Robbinsdale Cooper High School’s assistant principal broke up a fight in the hallway. This wasn’t your usual student brawl, though; a special education student was assaulting a physical education teacher.
Surveillance camera footage revealed a frightening scene: a ninth-grader was late for class and when the teacher directed him to get a tardy pass, the student made lewd gestures, swore and then pushed the teacher down the hallway, pinned her against a wall and threatened her.
When the Robbinsdale School District attempted to have the student expelled or moved to another district, an administrative law judge ruled that the student should be readmitted, so the district sued in order to restart the expulsion process. “The parent of the student requested our assistance to prevent the expulsion and to get the student and the school on a better track to more constructively deal with his disabilities,” says Dan Stewart, supervising attorney for the Minnesota Disability Law Center.
“From our perspective, this case involves a school district’s attempt to expel a child for behavior that is directly related to his disabilities. This violates both federal and state special education law,” says Stewart, who says a double standard is at work. “The school finds nothing wrong with a teacher physically grabbing a student with disabilities when he is disobeying a minor school rule.”
According to the Individualized Education Program, the student had no disciplinary issues on his record prior to this incident.
“The district made more than reasonable efforts to resolve this case,” says Peter Martin, who represents the Robbinsdale School District. “The attorneys want to have their cake and eat it too. It’s regrettable that it’s gotten this far. They want money from a government agency that increasingly has less of it. At this point, that seems to be animating this case.”
The case was pending at press time. —C.M.
PHARMA
Rated Rx
Gunvalson v. PTC Therapeutics
Teenager Jacob Gunvalson of Gonvick, Minn., has Duchenne muscular dystrophy, a fatal disease that usually claims its victims’ lives by age 30. PTC Therapeutics of South Plainfield, N.J., has an experimental drug, PTC124, that could help Jacob live longer. In fact, according to the Gunvalsons, PTC Therapeutics said Jacob could participate in a clinical trial in which the drug was being used. But the company denies it told the family he could use the drug.
The pharmaceutical company claims to have been clear with the Gunvalsons about access to PTC124 since the beginning. It also says the family decided not to participate in trial tests of the drug.
Former Attorney General Mike Hatch, no stranger to cases dealing with experimental drug treatments, took on the case on behalf of the Gunvalson family. “This pro bono lawsuit represented both the high point and the low point of my career,” says Hatch. “The high point was on Aug. 21, 2008, when U.S. District Judge [William] Martini in Newark, N.J., ordered PTC Therapeutics to comply with the ‘compassion use’ rules of the FDA and give Jacob access to an experimental drug that might save his life,” he says.
The low point came in December 2008, when the decision was reversed by the 3rd U.S. Circuit Court of Appeals. “I still don’t know why the company refused to help Jacob,” says Hatch.
Being able to walk is a requirement for those who wish to participate in a drug study for PTC124; in 2008, as a result of his disease, Jacob lost his ability to walk. The Gunvalsons are afraid Jacob won’t live to see the next clinical trial opportunity.
Currently no exceptions can be made for Jacob because, since PTC124 is still in the experimental stages, there isn’t enough safety information available for doctors to responsibly administer the drug outside of a trial capacity.
PTC Therapeutics could not be reached for comment. —C.M.
GOVERNMENT
Showdown on the Senate Floor
Citizens for the Rule of Law et al. v. State Senate Rules Committee et al.
In 2007, the Minnesota Senate and House bucked the system and gave themselves a pay raise. At least that’s what the Citizens for the Rule of Law claim. The group’s goal is to keep government officials accountable, and their beef is with Senate and House members who voted to raise their per diem payments from $66 to $96 in the Senate and $66 to $77 in the House.
The citizens’ group and its attorney, Erick Kaardal of Mohrman & Kaardal, say legislators violated the state constitution, which prohibits increases in compensation during the same term the elected officials hold office, and requires a one-term delay before salary increases go into effect.
The Ramsey County District Court dismissed the suit and the Minnesota Court of Appeals upheld the ruling, on the grounds that per diem allowances are not defined as “compensation” under law. “Logic suggests that if the court were right — and that per diem payments aren’t compensation — then legislators wouldn’t care whether they received the $96 or $77 per day,” said Kaardal in a Star Tribune editorial. “But legislators do care. These daily wages have become a significant part of their compensation package.”
Kaardal says his clients will petition the Minnesota Supreme Court for review. L&P
—R.B.
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