3d DCA Watch -- Engle Progeny Edition!

When does a "bad cough" trigger the statute of limitations in a post-Engle Florida tobacco case?

Never, says the 3d:

In the direct appeal, Ms. Frazier relies upon a carefully-protected record on the statute of limitations evidence and on the jury instruction and verdict forms. Regarding the evidence, and in particular the speculative, clear-in-hindsight-only testimony of Dr. Schroeder, Ms. Frazier sought and obtained an appropriate order in limine, and she objected as well. Dr. Schroeder could not and did not render competent testimony about what Ms. Frazier knew or might reasonably have known regarding the “manifestations” of her Engle-eligible COPD/emphysema and the causal relationship of those manifestations to the cigarettes produced by the appellees. He violated the order in limine as his testimony ventured into what was not “manifest” in 1986 and 1987, whether to Ms. Frazier or her treating physician. The manifestations of her COPD/emphysema did not begin, on this record, until 1991, a date within the statutory limitations period.

Great opinion by Judge Salter!

Clark v. Bluewater Key:

Judge Shepherd dissents "en haec verba"  -- hmm, not familiar with that term -- does he mean In-A-Gadda-Da-Vidda?

(Warning on the video -- you will never get those 17 minutes back!).

AJH Property v. SunTrust:

Big win for Jared Beck in reversing a Judge Bagley summary judgment! 

In other news, CABA withdraws its sponsorship of Lawyer Appreciation Night at Marlins stadium.

Good and I agree -- it's difficult to appreciate most lawyers for even a minute, let alone a whole night. 

CABA Elections Tonight!

Of course the big happening is tonight's CABA elections -- be there or be square.

Good luck contestants!

Hmm, my guess is it would be pretty tough to be a transsexual employed at the Georgia General Assembly’s Office of Legislative Counsel, especially around Halloween.

Hey, according to Judge Barkett -- I was right!

Starting in 2005, Glenn began to take steps to transition from male to female under the supervision of health care providers. This process included living as a woman outside of the workplace, which is a prerequisite to sex reassignment surgery. In October 2005, then known as Glenn Morrison and presenting as a man, Glenn was hired as an editor by the Georgia General Assembly’s OLC. Sewell Brumby is the head of the OLC and is responsible for OLC personnel decisions, including the decision to fire Glenn.

In 2006, Glenn informed her direct supervisor, Beth Yinger, that she was a transsexual and was in the process of becoming a woman. On Halloween in 2006, when OLC employees were permitted to come to work wearing costumes, Glenn came to work presenting as a woman. When Brumby saw her, he told her that her appearance was not appropriate and asked her to leave the office. Brumby deemed her appearance inappropriate “[b]ecause he was a man dressed as a woman and made up as a woman.” Brumby stated that “it’s unsettling to think of someone dressed in women’s clothing with male sexual organs inside that clothing,” and that a male in women’s clothing is “unnatural.” Following this incident, Brumby met with Yinger to discuss Glenn’s appearance on Halloween of 2006 and was informed by Yinger that Glenn intended to undergo a gender transition.

In the fall of 2007, Glenn informed Yinger that she was ready to proceed with gender transition and would begin coming to work as a woman and was also changing her legal name. Yinger notified Brumby, who subsequently terminated Glenn because “Glenn’s intended gender transition was inappropriate, that it would be disruptive, that some people would view it as a moral issue, and that it would make Glenn’s coworkers uncomfortable.”

And here's the money shot ratio decidendi:

The question here is whether discriminating against someone on the basis of his or her gender non-conformity constitutes sex-based discrimination under the Equal Protection Clause. For the reasons discussed below, we hold that it does.

I'm actually encouraged by this.

Odds and Sods

Hey, what's with this weather -- when did we suddenly become New England?

Congrats to Vivian de las Cuevas-Diaz, the new President of CABA -- I know it was a hard fought election between two cuties and the organization is fortunate to have so many talented and dedicated professionals involved in key leadership roles.

Go 'Noles!

This is a nice story about the Capital Defense Project over at UM Law:

University of Miami School of Law students Keon Hardemon and Paul Petrequin assisted a defense team in avoiding a death sentence for Grady Nelson, 53, in a Miami courtroom last week. After only an hour of deliberation on Thursday, jurors sided with Nelson’s defense team that included defense attorneys Terry Lenamon, David S. Markus and student supervisor and Assistant Professor Sarah Mourer, who entered the case pro bono as co-counsel. The jury recommended a life sentence.

The students conducted extensive research to assist in submitting QEEG [quantitative electroencephalography] – a three-dimensional brain image also known as brain mapping used to indicate traumatic brain injury. Lenamon says it’s the first time QEEG has ever been used in a death penalty case, and he believes it was the first time the technology was used in a Florida criminal case.

 Boy, maybe they can get involved in this horrendous upcoming execution in California, detailed today by Nicholas Kristof in the NYT:

William A. Fletcher, a federal circuit judge, explained his view of what happens in such cases in a law school lecture at Gonzaga University, in which he added that Mr. Cooper is “probably” innocent: “The police are under heavy pressure to solve a high-profile crime. They know, or think they know, who did the crime. And they plant evidence to help their case along.”

Judge Fletcher wrote an extraordinary judicial opinion — more than 100 pages when it was released — dissenting from the refusal of the United States Court of Appeals for the Ninth Circuit to rehear the case. The opinion is a 21st-century version of Émile Zola’s famous “J’Accuse.”

Mr. Fletcher, a well-respected judge and former law professor, was joined in his “J’Accuse” by four other circuit judges. Six more wrote their own dissents calling for the full Ninth Circuit to rehear the case. But they fell just short of the votes needed for rehearing.

Where's the Governator when you really need him?