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Legal Report February 2009


While the U.S. Supreme Court will hear dozens of cases during the current session, which began in October 2008 and will end June 2009, it will decline to hear thousands of others. Those cases not granted review by the Court over the course of the session will stand. Some of the decisions rejected by the Court involve issues such as the Americans with Disabilities Act (ADA), preemployment screening, and wrongful termination.

ADA. A man who has filed more than 400 lawsuits against companies for violating the ADA is a vexatious litigant and will not be allowed to file further claims, according to a U.S. appeals court. Jarek Molski, who is handicapped, visited businesses—some of them hundreds of miles from his home—and then claimed to have been injured by doorways that were too small or by attempting to enter bathrooms that were not ADA-compliant.

In its ruling, the court noted that the number of claims filed, plus the fact that the litigant convinced companies to pay cash to settle the suits, served as harassment against the companies. As evidence, the court noted that Molski had filed 13 separate lawsuits, claiming the same injury each time, over events that occurred during a five-day period. (Molski v. Evergreen Dynasty Corporation, U.S. Court of Appeals for the Ninth Circuit, No. 05-56452, 2007)

PREEMPLOYMENT SCREENING. A federal appeals court ruled that a company which recommended a former employee to a prospective employer even though the employee had been fired for drug abuse is liable for the damage caused by that employee at his new job. However, another employer who stated only the employee’s dates of service is not liable.

In November 2000, Robert Berry was a shareholder in Louisiana Anesthesia Associates (LAA) and a licensed, practicing anesthesiologist. LAA was an exclusive provider of anesthesia services to a local hospital, Lakeview Medical.

Shortly after Berry joined LAA, nurses at Lakeview expressed concern that he was taking numerous, undocumented withdrawals of Demerol. Lakeview Medical’s CEO, Max Lauderdale, called Berry into a meeting with other LAA employees. They agreed that Berry would be carefully monitored and that he would stop taking Demerol from the hospital. Three months later, Berry failed to respond to a page while on duty. Berry’s colleagues found him unfit to work. Berry admitted that he had taken prescription medication.

Lauderdale fired Berry on March 13, 2001. Mark Dennis, another anesthesiologist who worked with Berry, also signed the termination letter. The letter stated that Berry was fired because he reported to work in an impaired state and that his actions had put patients “at significant risk.”

In October 2001, Berry applied to work at Kadlec Medical Center in Washington state through a staffing agency. The agency sought referrals from LAA and Lakeview Medical.

Dennis and another of Berry’s colleagues submitted referral letters to the staffing agency. The letters stated that Berry was an excellent clinician and would be an asset to any anesthesia service.

Lakeview, though presented with a detailed questionnaire, provided only a brief statement. It stated Berry’s dates of service at Lakeview and indicated that a more comprehensive response was not possible due to a large volume of inquiries. (Though the hospital sent out 14 referral responses that day, Berry’s was the only one that was truncated in this fashion.) Neither referral indicated Berry’s termination or his on-duty drug use.

Berry was hired to work at Kadlec and served for several months without incident. He was transferred temporarily to Montana. While there, he was in a car accident and suffered a back injury.

When Berry returned to Kadlec, nurses complained that he exhibited mood swings and an overall change in demeanor. In September 2002, Berry gave a patient too much morphine, and she had to be revived.

On November 12, 2002, Berry was assigned to the operating room. He made mistakes throughout the day, and several patients suffered from being poorly anesthetized. Kimberley Jones was Berry’s fifth patient. She was in the hospital for a routine, 15-minute procedure. However, when moving Jones to a room, a nurse noticed that Jones wasn’t breathing. Berry failed to revive her, and she is now in a permanent vegetative state.

After the incident, Berry wrote a confession admitting that he was addicted to Demerol and checked himself into a rehabilitation clinic.

The Jones family sued Berry and Kadlec. The claims were settled by the parties’ insurance companies. Kadlec then sued LAA and Lakeview Medical for, among other claims, negligence and intentional misrepresentation. Kadlec claimed that it hired Berry only because the defendants had failed to give accurate information about Berry.

A jury found in favor of the plaintiffs and awarded them $5.52 million in damages. The defendants appealed the decision to the U.S. District Court for the Eastern District of Louisiana. The district court upheld the lower court’s verdict. The defendants appealed again.

The U.S. Court of Appeals for the Fifth Circuit upheld the verdict against LAA, ruling that the company’s referral letter was misleading. However, the court ruled that the referral from Lakeview Medical, while incomplete, did not offer misleading assertions and gave only Berry’s dates of service. (Kadlec Medical Center v. Lakeview Anesthesia Associates, et al, U.S. Court of Appeals for the Fifth Circuit, No. 06-30745, 2008)

WRONGFUL TERMINATION. An appeals court has ruled that a retailer unlawfully terminated an employee for questioning the legality of another employee’s actions. In the case, an employee was fired after reporting that his boss had broken into a car in the company parking lot.

In 2001, Bass Pro Outdoor World hired Kyle Kelly to work as a loss prevention agent at its retail store in St. Charles, Missouri. Kelly’s job included monitoring the CCTV cameras trained on the parking lot, conducting investigations, and apprehending shoplifters. Kelly was certified as a law enforcement officer prior to being hired by Bass Pro.

In late 2002, Karl Ritter was hired as loss prevention manager for the store. Ritter had previously served as a police officer and had an extensive background in loss prevention at other retail stores.

In the spring of 2003, Deborah Bost parked her malfunctioning car in a legal space in the Bass Pro parking lot. Ritter inspected the car and concluded that the car was abandoned because it had pollen on the windshield. He called the local police to have the car towed, but the police refused because it was on private property. Ritter then requested that the police process the license plate number to determine who owned the car. Again, the police refused to cooperate because such requests were against police policy.

About two weeks later, on April 11, 2003, Ritter walked into the monitoring station at the store and told the loss prevention agent on duty to “Watch this. I’m going to break into that car.” The agent trained the security camera to face the car and recorded what happened next.

Ritter used a “slim jim” to break into the car. It took Ritter several tries at different windows to gain access. He searched through the car but removed nothing. He then locked the car.

The agent who witnessed Ritter’s actions thought a crime had been committed and shared the tape with other members of the loss prevention team to see whether they felt the same. One of those team members was Kelly. He told his colleagues that Ritter lacked probable cause and might have damaged the vehicle.

After some soul-searching and discussing the matter with other team members, Kelly decided to report Ritter to the general manager, Lee Beasley. Beasley told Kelly to keep the matter quiet and then notified his own supervisor, Jerry Rogers.

Several days later, Rogers confronted Ritter about the incident and asked for an explanation. Ritter relayed his efforts to find out who owned the car or have it towed. Failing in these overtures, Ritter said he gained access to the car to try and ascertain ownership. Rogers said that this explanation was sufficient and that he considered the case closed. He did not reprimand Ritter.

A member of the loss prevention team told Ritter that it was Kelly who turned him in. Ritter told Rogers that Kelly had talked about the incident outside the loss prevention department. Rogers met with other senior managers and, without conducting an investigation, decided to terminate Kelly’s employment.

The week after Kelly was fired, Rogers called a meeting of the loss prevention department. Rogers told the team that he had authorized Ritter’s use of force to break into the vehicle. He explained that Kelly had not been fired for reporting the incident but for discussing it with other loss prevention personnel. Rogers also said that the issue was closed and that anyone caught talking about it would be fired.

Kelly filed a lawsuit against Bass Pro, claiming that he was wrongfully terminated for reporting the crime of breaking and entering. The jury found in favor of Kelly and awarded him $4,300 in actual damages and $2.8 million in punitive damages.

Bass Pro appealed the decision, arguing that no crime had been committed, so Kelly was fired for insubordination rather than for reporting a crime. The appeals court disagreed, upholding the lower court’s verdict. The court noted that an employee is not required to prove an actual violation of law, but he or she must cite some legal authority for the belief that the conduct in question was unlawful or clearly contrary to public policy. Kelly’s law enforcement background, ruled the court, led him to believe that Ritter had committed a crime.

The court upheld the actual damages, but struck the punitive damages, finding them excessive. (Kelly v. Bass Pro Outdoor World, Missouri Court of Appeals, Eastern District, No. ED88392, 2007)



SCHOOL SAFETY. Under a new Colorado law (formerly H.B. 1267), the state will implement a pilot program to digitally map schools to aid first responders. The program will aim to provide digital layouts and schematics of school buildings to first responders to help them during an emergency.

This column should not be construed as legal or legislative advice.