New York Injury Attorney Blog

Supreme Court of Florida: US v. Maureen Stevens

Robert Stevens worked for American Media Inc., publishers of the National Enquirer. In 2001, letters containing anthrax were sent to a number of recipients, including American Media in Florida. Mr. Stevens died from inhaling the anthrax. His wife sued the United States (it was their anthrax) and Battelle Memorial Institute, a private facility that produced Bacillus Anthracis for the government.

Both cases ended up in Federal Court. The suit by the widow Stevens alleged that the anthrax that killed her husband could be traced to the US Army Medical Research Institute for Infectious Diseases, that the Feds knew it was “ultra hazardous,” that samples had been missing since 1992 and that there was a failure to provided adequate security for handling and shipping such materials, which were somehow intercepted and ended up in an envelope addressed to American Media’s Florida offices, killing her husband when he unknowingly inhaled its contents. The suit against Batelle made similar claims about lack of security, failure to monitor employees and negligence in the handling and transport of Anthrax causing it to end up in the wrong hands.

Both defendants moved to dismiss claiming they could not be responsible if their Anthrax was stolen and that such intervening criminal acts relieved them from responsibility for the death of Robert Stevens.
The Federal District Court denied defendants’ motions after looking to Florida law to see whether Mrs. Stevens’ anthrax theory of negligence was recognized in the Sunshine State. It concluded that Florida law supported the widow’s claim under the state’s “foreseeable zone of risk” theory. The government moved for reconsideration, which was denied, but it was granted leave to have this question answered by the Eleventh Circuit Court of Appeals: What duties exist under Florida law to protect members of the public where an organization creates a significant risk by using anthrax or another ultra-hazardous material.” The Eleventh Circuit then sent that question to the Florida High Court to answer.

Obviously this sort of question affects everyone. If the Government wants to make anthrax, well, fine. If it has to get it from a lab, well, where else can it shop for the stuff. But if it’s going to have it delivered by messenger, or FedEx or UPS or its own private couriers, shouldn’t there be some awareness that it could kill unsuspecting and uninvolved people who come in contact with it, and some meaningful precautions to prevent that from happening? And shouldn’t those who make, handle and ship anthrax to wherever anthrax gets shipped, make sure that they have an inventory system that at least rivals Wal-Mart and a security system as advanced as Blockbuster’s. Or do the government and its labs get a pass because their anthrax work is so vital that the best we can hope for is that none of us end up on the wrong mailing list.

Not quite.

You’ll be happy to know that the Florida Supreme Court found that widow Stevens has a right to sue. Whether the anthrax was misplaced, pocketed, or fell off the truck (or out of the Petri dish), the court concluded that the greater the risk of harm to others, the greater the duty to avoid injury to others:

In coping with the heightened duty that comes with this risk, the government and Battelle are required to contemplate a countless variety of situations in which a reasonable laboratory in their position must anticipate and guard against the unauthorized interception and dissemination of the dangerous substance. Given the allegations of negligent security of the ultrahazardous material and the virtual impossibility of potential victims to protect themselves once this substance is at large, this is obviously one of those cases...where the risk of injury is great and the corresponding duty of the lab is heightened. In a very real sense, it is this inability to measure the extent of this risk that merits giving the claimants an opportunity to go forward.

So for Mrs. Stevens, it’s back to the Federal Court with her golden ticket in hand. Now that she has the right to proceed, it remains to be seen if she has the right evidence to prevail.

We should all applaud her persistence since what happened to Robert could have happened to any one of us. If the Government and its labs don’t know how to keep track of their toxins and plagues or properly monitor the scientists and employees who make and transport powdered death, they shouldn’t be allowed to play with it.

One hates to think that the only powder they can be trusted with is Tang.

Posted by Mark A. Eskenazi | Permalink | Email This Post

Posted In: Anthrax , Damages , Government Negligence , Injuries , Other State Courts , Terrorism , War on Terror , Wrongful Death

Bookmark:

Supreme Court of Florida: Jews for Jesus v. Edith Rapp

There’s a fine, not always so-clear line, between church and state which seems too often to turn on whose ox is being gored or ignored. There’s a different line that can be crossed between individuals when religion is an issue: It’s called defamation. And it’s about as hazy a line as the church-state line. This is a perfect case in point.

Here are the facts: Bruce Rapp is Jewish. He also believes in Jesus and worked for Jews for Jesus, an outreach group which shares the Gospel of Christ with other Jews. His Jewish father Marty and step-mother Edith lived in Florida. Bruce’s father was dying and Bruce spent months sharing his faith with dad, believing that acceptance of Jesus, even for Jews, is the way to salvation. The court quoted Bruce’s account of events from the Jews for Jesus newsletter:

“I had a chance to visit with my father in Southern Florida before my Passover tour. He has been ill for sometime and I was afraid that I may not have another chance to be with him. I had been witnessing to him on the telephone for the past few months. He would listen and allow me to pray for him, but that was about all. On this visit, whenever I talked to my father, my stepmother, Edie (also Jewish), was always close by, listening quietly. Finally, one morning Edie began to ask me questions about Jesus. I explained how G-d [sic] gave us Y’Shua (Jesus) as the final sacrifice for our atonement, and showed her the parallels with the Passover Lamb. She began to cry, and when I asked her if she would like to ask G-d for forgiveness for her sins and receive Y’Shua she said yes! My stepmother repeated the sinner’s prayer with me-praise G-d! Pray for Edie’s faith to grow and be strengthened. And please pray for my father Marty’s salvation.”

This newsletter was published on the internet. It was seen by one of Edith’s relatives (why was she looking at the Jews for Jesus website?). As any Jewish believer in Jesus knows, such news is frequently not well received by Jewish relatives and friends. Whatever Edith did or didn’t do in private, when Bruce’s account of her salvation experience hit cyberspace and became family news, Edith sued.

Edith’s complaint was that Jews for Jesus defamed her by claiming, without her permission, that she had “joined Jews for Jesus, and/or [become] a believer in the tenets, the actions, and the philosophy of Jews for Jesus.” Her complaint alleged “(1) false light invasion of privacy; (2) defamation; and (3) intentional infliction of emotional distress.”

Jews for Jesus moved to dismiss. After considerable battles over whether Edith’s suit even stated a cause of action, after she re-filed new and improved claims and after further motions, the lower court dismissed all of Edith’s claims. Edith appealed.

The Fourth District Court of Appeals affirmed the dismissal of the defamation claim concluding “the ‘common mind’ reading the newsletter would not have found Edith to be an object of ‘hatred, distrust, ridicule, contempt or disgrace.’” In doing so, it also rejected this generally accepted standard for defining defamation: “a communication is defamatory if it ‘prejudiced’ the plaintiff in the eyes of a ‘substantial and respectable minority of the community.’” As for the tort of false light, the court was uncertain such a claim existed in Florida. That question was certified to the Florida Supremes to answer and was taken up by Jews for Jesus.

Essentially, the high court found that defamation and false light claims have many of the same elements: “[F]alse light has the following six elements: (1) publicity; (2) falsity; (3) actor must act with knowledge or reckless disregard as to the falsity; (4) actual damages; (5) publicity must be highly offensive to a reasonable person; and (6) publicity must be about the plaintiff.” “Defamation has the following five elements: (1) publication; (2) falsity; (3) actor must act with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a matter concerning a private person; (4) actual damages; and (5) statement must be defamatory.”

After reviewing the history of false light claims in Florida and elsewhere, the high court concluded that false light is based on a subjective standard, i.e.,“publicity [which] must be highly offensive to a reasonable person” and thus creates a “moving target whose definition depends on the specific locale in which the conduct occurs or the particular sensitivities of the day.” Accordingly, it dismissed the false light claim. Score one for Jews for Jesus.

But given the sensitivities that surround Jewishness and Jesusness, perhaps more so in Florida than in many other states, the court also scored one for Edith: It found that “the Fourth District failed to embrace the standard that a communication is defamatory if it prejudices the plaintiff in the eyes of a ‘substantial and respectable minority of the community.’” So it reinstated the defamation claim and left it to the lower court to figure out if Edith was prejudiced in front of a “substantial and respectable minority of the community,” namely her Jewish friends and family.

While the District Court found that the “the ‘common mind’ reading the newsletter would not have found Edith to be an object of ‘hatred, distrust, ridicule, contempt or disgrace’" for believing in Jesus, the Supreme Court recognized that there is a potential cost to a Jewish person to profess faith in Jesus or to be spoken about as if they did. A “substantial and respectable minority” may disapprove and cause one to suffer real damages.

Since Jesus walked the earth there has always been a personal cost to Jews who profess faith in Jesus and the issue for the individual has always been the same: Is it worth the cost?

For Bruce Rapp it was. For Edith Rapp, the jury’s still out. As for whether it's defamation to say someone believes in Jesus, it depends which side of the line you're on and what you believe about crossing it.

Posted by Mark A. Eskenazi | Permalink | Email This Post

Posted In: Damages , Other State Courts , Religion , The Internet

Bookmark:

New York Supreme Court: Bossy v. Camelback

Solicitation Plus. It sounds like what brought down the former governor of New York. It's not quite as juicy, but without it, your New York case against a foreign corporation with a website on the net goes nowhere.

Why is this important? It depends how you use the internet.

In this case, Evan Bossy was injured when he skied into an unpadded pole on the beginner trail at Camelback, a ski resort located in Pennsylvania. Evan’s parents brought suit in New York on Evan’s behalf, suing Camelback for negligence.

Camelback moved to dismiss the case, claiming it could not be sued in New York because the court had no personal jurisdiction over this out-of-state corporation. Camelback runs a ski resort in Pennsylvania. It is not a New York corporation (any business incorporated outside of New York is a foreign corporation). It has no employees or offices in New York, was not negligent in New York and does not transact business in New York.

It does, however, have a website. Plaintiffs claim that Camelback is always “doing business” in New York “by virtue of its constant presence here through its interactive website” where skiers can book reservations and purchase lift tickets on line. Moreover, Camelback “solicits” New York customers by “placement of advertising flyers in New York retail ski shops.”

The question is whether this is enough business to be considered doing business as that is defined by New York law. According to the court, it’s not enough and it dismissed the case. An interactive website alone will not give you jurisdiction over a foreign corporation. You need more. You need “the presences of traditional indicia of doing business” or substantial and continuous solicitation...coupled with financial and commercial dealings or other activities of substance in New York,” i.e., solicitation plus.

Even if the court treated Camelback's interactive website as a constant solicitation, absent other factors such as engagement in financial or commercial dealing or other activities of substance in New York, such cyber-office-space does not meet the solicitation plus threshold which would confer jurisdiction on this foreign corporation. Under the circumstances, proper venue would either be Federal Court or Pennsylvania.

So back in New York, case dismissed. Such is the result of applying Flintstone rules to Jetson-age problems. One suspects the state legislature and the higher courts will eventually have to sort through all the nuances of cyber commerce, but until then these matters will be resolved on a website by website basis.

What does that mean for web browsers and shoppers in the Empire State? The home page may get the home court advantage if there’s a problem on line. And it means buyer beware when you add to your cart.

Posted by Mark A. Eskenazi | Permalink | Email This Post

Posted In: Damages , Injuries , New York State Courts , The Internet

Bookmark:

Appellate Division, Second Department: State Farm v. Langan

In politics you have to “follow the money” to figure out why some laws pass and others don’t. In automobile accidents, you have to figure out if there’s insurance coverage to compensate the injured party. That’s especially tricky if the car is a murder weapon.

On February 12, 2008 Neil Spicehandler was struck and fatally injured by a car driven by Ronald Popadich. Popadich was on a murderous spree which included killing a neighbor, shooting a cabbie, attempting and then succeeding in running down a pedestrian, namely, the late Mr. Spicehandler. In September 2005 Popadich pleaded guilty to second degree murder.

The guilty verdict presented a tough issue for John Langan, Administrator of the Estate of Mr. Spicehandler. How can you collect in a civil suit from a driver who intends to kill the victim? Intentional criminal acts are not covered by automobile insurance. Accidents are. Since this was no accident, there was no way to collect from any policy issued for the murderous driver’s vehicle. So Langan looked to his own State Farm auto policy, which he claimed covered Spicehandler in two ways. State Farm, in turn, sued to have the case dismissed and to free it from any financial responsibility under Langan’s auto policy since this was murder, plain and simple.

Maybe not so plain or simple. First, the court agreed that Spicehandler’s Estate could not collect under the uninsured motorist endorsement of Langan’s policy. The uninsured motorist endorsement (of the injured party’s insurance policy) provides coverage for a person when the offending car has either no insurance or limited insurance; it then kicks in as if it were the coverage for the other car, or it kicks in to provide additional coverage above what the other car carried. As the court said, since Popadich couldn’t have coverage for his intentional act of murder, “it follows, then, that, because no coverage would have been provided under a standard automobile liability policy issued to Papadich, State Farm is not obligated to provide benefits under the uninsured motorist endorsement of its policy with Langan.”

So State Farm is clear? Not quite.

Langan pointed to his State Farm policy’s “mandatory personal injury protection endorsement and its death, dismemberment, and loss of sight provisions” and said this was still an accident as that’s defined in his policy and State Farm had to pay. The court agreed.

Even though Mr. Spicehandler was murdered, an intentional act from the viewpoint of the murderer, from the viewpoint of the one murdered “the event was ‘unexpected, unusual and unforeseen’ and not brought about by the insured’s own ‘misconduct, provocation or assault.’” And it was the covered individual’s perspective that governed. Without a specific exclusion for injury or death caused by an intentional act in the State Farm Policy, the insurance company was on the hook and obligated to provide benefits because murder or not, Mr.Spicehandler didn't see death coming.

The old TV show was called Murder, She Wrote. For the Insurance carrier, unless it writes an exclusion for murder, the events are seen from the victim’s eyes, and one thing everyone can agree on is that from the victim’s perspective, murder is “unexpected, unusual and unforeseen.”

One suspects that to State Farm Insurance this decision was also “unexpected, unusual and unforeseen” and that it never knew it was going to get murdered in court.

Posted by Mark A. Eskenazi | Permalink | Email This Post

Posted In: Auto Accidents , Damages , Injuries , New York State Courts , Wrongful Death

Bookmark:

U.S. Court of Appeals for the Second Circuit: In Re Terrorist Attacks on September 11, 2001

Fifteen of the nineteen terrorists involved in the 911 attacks were Saudis. Why not sue the Kingdom of Saudi Arabia and various other seemingly responsible parties (including four Saudi Princes, a Saudi Banker and the Saudi High Commission) for their support role in the attacks? After all, investigations by our government and by non-governmental entities revealed that most of the terrorists were from the Kingdom of Saudi Arabia and that the defendants provided financial support to al Queda through various channels. The plaintiffs are those who incurred losses in the September 11th attacks. They alleged that Islamic charities under the control of, and funded by, the defendants played an instrumental role in the development of al Queda and the fulfillment of its objectives.

One of the great things about the American justice system is access to the courts. Private citizens and their attorneys have been able to bring actions in court seeking remedies for similar wrongs (Libya was sued for the hijacking and murders aboard Pan Am Flight 73 in 1986, and for the destruction of Pan Am Flight 103 over Lockerbie Scotland which killed all 270 people on board; Swiss banks were sued for corroborating with Nazis and laundering Nazi wealth taken from Jews who died in the Holocaust). Well, what about suing those behind the World Trade Center attacks?

Great idea. Only one problem: The Foreign Sovereign Immunities Act (FSIA) “grants foreign sovereigns immunity from suit in the United States” subject to some limited exceptions, which include torts (car accidents, negligence or injury caused by their representatives) and commercial activity (when the government acts like an individual involved in trade or commerce).

The other exception is created when the US Government designates a foreign government a “state sponsor of terrorism.” When that occurs, there is a private right of action to sue the foreign government. That’s what happened here. Except the State Department did NOT designate Saudi Arabia a state sponsor of terrorism.

No designation, no day in court.

Whether all the defendants in this action are agents or servants of the Saudi Kingdom and actually did what the plaintiffs claimed, the victims of 911 have no right to sue the Saudis under the state sponsor of terrorism exception. And their fall-back positions—that the acts of flying planes into the World Trade Center fit under the tort or commercial activity exceptions—were unconvincing. This was terrorism, and that was the only exception available to the plaintiffs.

The Court summed up the limits of our individual right to sue foreign powers this way:
"Although the FSIA did open an avenue of redress for certain individual victims of state-sponsored terrorism, it did not delegate to the victims, their counsel and the courts the responsibility of the executive branch to make America’s foreign policy response to acts of terrorism committed by a foreign state, including whether federal courts may entertain a victim’s claim for damages." The case was dismissed.

Maybe this is the rare instance where we wish lawyers had more power than they already have.

September 11th may not have been brought to us by any recognized state-sponsored terrorists, but it sure looks like it was. The "state-sponsored" loophole is as big as Ground Zero and leaves one wondering why the attorneys' hands are tied while the terrorists funded by "non-state" sponsors reach all the way into NYC, DC and the skies above Pennsylvania without ever having to answer in court for their actions.

Posted by Mark A. Eskenazi | Permalink | Email This Post

Posted In: Crime and Punishment , Damages , Injuries , Politics , U.S. Court of Appeals , War on Terror

Bookmark:

U.S. District Court for the Southern District of New York: Casillas v. Daines

It’s only money, except when you’re looking for Medicaid to pay for gender reassignment, or what was previously known as a sex-change operation. Without the state’s cash, Terri Casillas could not obtain the operation "she" claimed she needed. The state refused to pay. The court refused to make the state pay.

Ms. Casillas was born male but identified as a woman from age 16 and lived as one from the time she was 20. When she was about 28, she was diagnosed with Gender Identity Disorder (GID or transsexualism), a form of depression “defined by strong, persistent feelings of identification with the opposite gender and discomfort with one's own assigned sex” (hence the need for gender reassignment). For twenty-four years Ms. Casillas underwent hormone therapy courtesy of Medicaid, which caused her to develop breasts and a “more traditionally female body.” When Medicaid funding ended, the plaintiff paid her own way. When she could no longer afford it, therapy stopped and Ms. Casillas “began to exhibit male characteristics.” This was the point of no return for Ms. Casillas, so she sued the New York State Department of Health to make them pick up the tab for the ultimate remedy: gender reassignment, i.e.,“vaginoplasty (removal of the penis and creation of a vagina) with orchiectomy (removal of the testes).”

It turns out there is a 1997 Department of Health regulation which restricts Medicaid payments for gender reassignment. Ms. Casillas claimed this limitation violated her federal right to obtain such a procedure, which was guaranteed under federal statutes and the US Constitution. The court disagreed. It found that the state can limit medical services based on criteria such as “medical necessity” or “utilization control” (control over the distribution of limited resources through Medicaid). Moreover, if the state had a valid medical reason not to cover such procedures, it didn’t have to. The state identified numerous concerns about gender reassignment, including that “serious complications” could result from such surgery and that the long-term effects of the lifetime hormone therapy that would be required were unknown. Accordingly, the state’s refusal to pay was neither irrational, discriminatory nor a violation of Ms. Casilla’s statutory or Constitutional rights.

In this age of breakthrough medical technology where there are procedures from butt, breast and calf implants, to male sexual enhancement or labiaplasty (look it up!), to cryogenics, the court seemed to recognize that valid lines need to be drawn with respect to state-funded health care and that Medicaid cannot pick up the tab for every medical procedure available. You can’t always get what you want under Medicaid, but you can get what you need.

Finally, Ms. Casillas argued that what she wanted removed surgically was akin to a mastectomy, where a breast is removed because of a medical condition affecting the body part. As she saw it, GID similarly affected a body part (by causing her depression and discomfort) and the surgery should be approved. Since the state pays for one procedure, it should pay for the other and the offending part should be taken off courtesy of Medicaid.

That argument did not cut it, according to the court. And neither would Medicaid.

The case was dismissed.

Posted by Mark A. Eskenazi | Permalink | Email This Post

Posted In: Culture War , Damages , It's My Right! , U.S. District Court

Bookmark:

U.S. Court of Appeals for the Fifth Circuit: Lawrence R. Poliner, MD V. Texas Health Systems

For years there’s been a national debate about the impact of medical malpractice actions: Should damage awards be capped? Are lawsuits putting doctors out of business? Should juries even have the right to decide if a doctor committed malpractice? Or should doctors receive preferential treatment in our legal system so they can practice medicine without thinking about malpractice actions?

Freeing doctors from potential lawsuits might sound good in theory, but it raises some serious questions about how safe we would be as potential patients.

The Fifth Circuit had to deal with a variation on this question: Can Peer Review Committees (hospital committees made up of doctors who evaluate less-than-optimal care by other doctors at the hospital) be sued for money damages based on their findings? Dr. Poliner was reviewed by such a committee. His medical judgment treating a number of patients had been previously questioned and criticized. His treatment of “patient 36” caused a peer review committee to temporarily restrict his hospital privileges. That decision went down like Castor oil. Doctor Poliner sued the hospital for defamation, intentional infliction of emotional distress and various contract claims.

A trial jury sided with the aggrieved doctor. It awarded him over $200 million in damages. The verdict was subsequently reduced to $33 million by the judge. The Fifth Circuit Court Appeals reversed and ruled in favor of the defendants. It held that under federal law, peer reviewers had immunity and could not be sued by the doctor. More importantly, it found “That the ad hoc committee concluded that Poliner gave substandard care in half of the cases reviewed, and considering the seriousness of the diagnostic error with Patient 36... Defendants were fully warranted in concluding that failing to impose further temporary restrictions ‘may result’ in an imminent danger.”

Back to the first point: There’s been a lot of debate about malpractice cases. Now we know that hospitals have an absolute right to review their doctors and take action. Good. They should. Like the court said, robust peer review helps root out incompetent physicians, protects patients and prevents malpractice. But what about the cases they review when there's “substandard care” and they don’t take action against a doctor? The next patient may well be at serious risk, and someone other than the patient is willing to take it.

That unknowing patient at potential risk could be any of us. If we get injured (and medical mistakes can cause very big injuries), we don’t have the right to fire the doctor or restrict his practice. What we have is the right to bring a medical malpractice action. Take that away and we’re left to what peer reviewers do or don’t do when they’re confronted with substandard care by one of their own.

Sounds like a prescription for trouble.

Posted by Mark A. Eskenazi | Permalink | Email This Post

Posted In: Damages , Medical Malpractice , U.S. Court of Appeals

Bookmark:

New York Supreme Court: Smith v. Walsh-Smith

It's a brave new world and YouTube is at the cutting edge. From the same computer you download directions or songs for your iPod, you can upload and stream videos to a worldwide audience. Now that's power! And possible trouble. Tricia Walsh-Smith is a case in point.

Tricia married Philip Smith, a man 25 years her senior. Philip started out as a theater usher and ended up president of the Shubert Organization, "the largest theater owner and operator in the United States." Notwithstanding his success, Mr. Smith is a very private man. Apparently, Mrs. Walsh-Smith had issues about the terms of their prenuptial agreement and about her husband's unwillingness to invest $250,000 in her theatrical production. Without his money, the show would not go on. These issues ripened into heated arguments, flying crockery and threats by the missus to malign Mr. Smith in the New York Post. True to her word, the Post got the dirt on Mr. S. As a result, he filed for divorce on the grounds of cruel and inhuman treatment.

She sued him back. She also availed herself to some self-help. Not satisfied that she was mustering the necessary leverage to obtain a favorable outcome or an out-of-court settlement to her liking, the angry wife took her beef to the internet. Having come to appreciate the value of a good production, she brought a film crew into the marital apartment, added music and subtitles, and trashed her husband on video. She then posted it on YouTube, which turned out to be her big break. The video was an "overnight sensation" and has been viewed more than three million times.

Fame has its cost, however. It is no easy task to prove cruel and inhuman treatment in divorce court, but Mrs. Walsh-Smith's internet histrionics gave Mr. Smith all the proof he needed. As the court stated, "He has been publically humiliated and embarrassed to an unprecedented extent." Mrs. Walsh-Smith claimed "she had no other option" because of her finances. The judge was not moved, noting that other spouses have been similarly challenged without resorting to the internet, and concluded that "it is hard to say defendant had no other choice when no one else before her had ever exercised that choice." Accordingly, the court granted Mr. Smith his divorce. As for Mrs. Smith, she might have gone where no woman has gone before, but she owes YouTube the credit for the outcome in her divorce.

YouTube is power: Become famous (or infamous) overnight. Jump start a career. Or attack your enemies (or your spouse) on a global scale from the convenience of your home. It might seem like a handy tool to advance your interests, but we are learning it comes with responsibilities. You can't use the internet as a weapon to humiliate or embarrass people with impunity. (In an unrelated but similar case, a Florida judge required two teens who had thrown a large drink at the drive-thru cashier—an activity its purveyors call "fire in the hole"—to post a groveling apology on YouTube after they first posted their own home-made video of their mean-spirited carbonated assault.) We'll see what new and inspiring or insipid ways the internet will be used tomorrow, and just how creative the courts will have to become to deal with it.

Until then, post at your own risk.

Posted by Mark A. Eskenazi | Permalink | Email This Post

Posted In: Brave New World , Damages , New York State Courts , Speech , The Internet

Bookmark:

Texas Supreme Court: Pleasant Glade Assembly of God v. Schubert

If you believe in Jesus, you’ve come to understand him from the New Testament. Well, the same scriptures that teach about Jesus also teach about demons and the laying on of hands by church elders. If you accept Jesus, then consistency demands that you accept the other things the Bible teaches. Or does it?

17 year old Laura Shubert attended the Pleasant Glade Assembly of God Church. In fact, her own father was an Assembly of God pastor and missionary. The Assemblies of God is a Pentecostal denomination. It “believes in the literal teachings of the Bible with respect to spirits, demons, demon possession and the ‘casting out’ of demons.” It also believes that people can be “slain in the spirit,” which, according to the church, “is a positive experience in which the holy spirit comes over a person and influences them.” The Bible refers to this as being “filled with the spirit” and believers are encouraged to be filled with the spirit again and again.

Laura Shubert had such an experience. In fact, she had it twice in a matter of days. While slain in the spirit the second time, however, Laura’s physical reaction was so significant that the senior pastor was summoned. He laid hands on Laura and prayed for her. Because of the animated way Laura was reacting, she suffered carpet burns, a scrape on her back and minor bruises.

Laura’s experience led to a meeting between her father, Pastor Shubert, and Pastor McCutchen, the one who had laid hands on Laura. A theological discussion ensued and both agreed that Christians cannot be demon possessed (there was apparently a question whether Laura was manifesting the Holy Spirit or was being tormented by an evil spirit). As a result of that meeting, the church agreed to teach more on the subject so its young members would better understand what the Bible says about being filled with the spirit and what it says about demons.

Notwithstanding the theological explanations given, Laura subsequently became depressed, dropped out of school and abandoned her plan to attend Bible College. She was finally diagnosed with post-traumatic stress disorder, and she and her parents blamed the church and sued Pleasant Glade for the injuries and emotional distress she suffered. (There apparently was not much debate about the Bible’s proscription about believers suing fellow believers.)

Laura won at trial. A jury awarded her damages of $300,000 for pain and suffering and other losses. The Court of Appeals in Texas affirmed most of the decision, but the Texas Supreme Court reversed it all.

Laura’s experience, good, bad or otherwise, was not a matter for the courts. As the Supreme Court explained, “Whether the defendants had intentionally or negligently misapplied church doctrine to Laura during these events was not a justiciable controversy...because the ‘First Amendment [gave] Pleasant Glade the right to engage in driving out demons.’”

The court also found that “The ‘laying of hands’ and the presence of demons are part of the church’s belief system and accepted as such by its adherents. These practices are not normally dangerous or unusual and apparently arise in the church with some regularity. They are thus to be expected and are accepted by those in the church. That a particular member may find the practice emotionally disturbing and non-consensual when applied to her does not transform the dispute into a secular matter.”

Laura’s case was dismissed.

The courts have always struggled to balance religious expression and individual rights. In this case, whatever happened “in the spirit” was clearly not the court’s business. But this sort of controversy is not going away. The Bible does more than explore spiritual matters, it judges certain matters of the flesh, including lust, homosexuality, pride and adultery; it is only a matter of time before the words of the Bible are challenged as so offensive they must be silenced. Another, less constrained court, may agree and choose to step into the fray.

God help us.

Posted by Mark A. Eskenazi | Permalink | Email This Post

Posted In: Damages , Injuries , Other State Courts , Religion , Strange but True

Bookmark: