Recent Cases of Interest

Penney v. Praxair, Inc.(8th Circuit)(from Stephen A. Hoffman)(6/19/97)affirmed USDC DSD Judge Jones ruling excluding PET scan under Daubert

Wegleitner v. Sattler and Town Of Lake City (5th Circuit)(from Roy A. Wise 6/16/97)

Kuper v. Lincoln-Union Electric Company

1996 SD 145; 1996 WL 743511 (S.D.) 12/31/96

Tom Fritz headed the defense effort against Mike Schaffer for the plaintiff; this case is discussed elsewhere in this issue, but bears note here as well because of another expert issue; Kuper, a dairy farmer near Lennox, SD, sued Lincoln_Union for injury to his dairy herd alleged to have been caused by stray voltage from the electricity cooperative power lines: prior to trial Kuper refused to disclose reports from a witness he considered to be a non testifying expert; the trial court supprted Kuper’s position and kept the report from defendant before trial; it did NOT keep the report from being heard at the trial during cross exam of the main plaintiff expert; the SD Supreme Court held that the plaintiff expert had no protected status because he was a fact witness in this circumstance.

Jochims v. Hillcrest Country Club

USDC DSD Southern Div Civ 95-4178 10/23/96

Tom Welk and Lisa Marso from Sioux Falls defended this Americans with Disabilities Act suit obtaining summary judgement for Hillcrest from US District Court Judge Lawrence Piersol. The court disposed of the claim by deciding that this Yankton golf club did not qualify as an employer under the Act because it was a "bona fide private membership club"; and that its "meaningful conditions of limited membership" were not a genuine issue of material fact; affidavits alleging inter alia that players were allowed on the course with higher green fees and no membership; club manager by affidavit said that the course use was closed to nonmembers with tournament exceptions from May 1 until Labor Day each year; questions of performance of essential job functions and reasonable accommodation were not reached by the court.

In a 32 page opinion filed on November 6, 1996, Judge Richard Battey, Chief Judge, US District Court DSD dismissed class action antitrust claims under the Sherman and Clayton Acts against multiple defendants--video lottery machine distributors; plaintiffs are video lottery machine licensed establishments/operaters who alleged that the defendants conspired to fix lease prices on the machines; refused to deal with persons other than their own trade association; and allocated/divided territories for placement of the machines; Attorneys Tom Welk, Mike McNight, Jeff Sveen, Joe Butler, Jeff Hurd, Robert Riter, Jr. (Laurance Waldoch), Pete Fuller, Jerry Johnson, John Theeler, Melissa O’Rourke represented the many defendants; Jim Cremer (Robert Schmit) represented the plaintiffs.

Lind v. City of Pierre Sixth Judicial Circuit Court 9/96

Bob Riter, Jr. noted this Fall 1996 decision from Judge Steve Zinter involving a claim against City of Pierre arising out of an injury on a storm dampened softball field; the City of Pierre had no duty of care because it did not possess or control the facility though it had leased the field to the city softball association (citing Clauson v. Kempffer 477 NW2d 257, 259 (SD 1991)); the condition on the field alleged to have caused the injury came into existence after the Association took over control of the field; these two elements of the controlling Restatement sections (Torts 2d ¤355) satisfied, the court held the City had breached no duty to plaintiff.

Alverson v. Northwestern Nat. Cas. Co., 1997 SD 9 2/12/97

A 4-1 decision (J. Amundson dissenting) just filed holds that a contractors’ work exclusion applies excluding policy coverage for damage to windows caused by bricklayers working nearby; the Comprehensive General Liability policy appeared to be a typical one for that size business.