Iowa Supreme Court Rules That You Can Get Away With Falsifying Evidence If You Make It Look Like An Innocent Mistake

Last week, the Iowa Supreme Court decided Loehr v. Mettille, in which the court was confronted with a falsification of evidence issue.

Although Loehr was a construction defect and debt collection practices case. its lessons about altering evidence also apply to a personal injury or wrongful death suit, products liability claim, motor vehicle accident claim, dog bite claim, employment or labor law claim, business practices or contract law claim, nuisance law claim, or insurance law claim.  One of the questions raised in front of the jury was the extent to which the parties had spoken about the particulars of their arrangement.  The defendant’s telephone records were offered as evidence during his jury testimony regarding his discussions with the plaintiffs.

Before the case was submitted to the jury, the plaintiff’s counsel noticed that the telephone record was actually several pages pulled from different records and appeared to be a fabrication.  The plaintiff’s attorney pointed that out during his closing argument, but the jury returned a verdict for the defendant on the plaintiffs’ claims.

The plaintiffs requested a new trial based on the defendant’s submission of fake evidence in front of the jury.  The trial court held a hearing during which the defendant, his officer manager, and his trial attorney testified about the fabricated telephone records.  The defendant conceded that his “telephone records” were not real.  He maintained though that the fabricated evidence was an innocent mistake and not a deliberate fabrication.  The trial court disagreed and ordered a new trial because it concluded that the defendant had intentionally tried to mislead the jury.

On appeal the Iowa Supreme Court reversed the trial court.  It concluded that the fake evidence was the result of carelessness, not dishonesty.  The court also determined that, even if the defendant had intentionally fabricated evidence, the plaintiffs suffered no prejudice and the presentation of their case was not harmed as a result.

I don’t agree with the Iowa Supreme Court on this one.  Sure, it was a close call on whether this evidence was intentionally fabricated, and the trial court could have gone either way in granting a new trial.  But the Iowa Supreme Court’s decision to overturn the trial court’s ruling seems to contradict two general principles of appellate law.  One is that trial courts’ decisions on those “close calls” should rarely be reversed on appeal and only if the trial court really messed up.  This trial judge’s decision was not so far off-base that reversal was justified.

Another rule is that the trial court is in the best position to view the trial and the witnesses and judge their credibility, unlike the appellate judges who review nothing but a paper transcript and the exhibits.  Therefore trial decisions about witness credibility and the impact of evidence are usually left alone on appeal.  The trial court in Loehr obviously did not find the defendant’s testimony about the false telephone records credible and must have believed that the fake evidence prejudiced the plaintiffs’ case.  The Iowa Supreme Court should have deferred to the trial court’s better vantage point in those regards and left the new trial decision in place.

General Electric Gas Range Fire Hazard

The U.S. Consumer Products Safety Commission has announced General Electric’s voluntary recall of gas ranges because of a fire hazard:

Name of Product: GE Monogram® Pro Rangetop with Grill

Units: About 470

Manufacturer: Leiser, Mexico

Importer: General Electric – Appliances, of Louisville, Ky.

Hazard: Burners on Rangetops operating on liquefied petroleum (“LP” or propane) may fail to ignite or light if the gas control knob is left in a position between OFF and LITE, posing a risk of delayed ignition or explosion.

Incidents/Injuries: GE has received six reports involving explosions in units operating on LP gas, including reports of damage to kitchen cabinets beneath the Rangetop. No fires or injuries have been reported.

Description: The Grill units operate on liquefied petroleum (“LP” or propane) or natural gas. The Rangetop units are either 36 or 48 inches wide with a stainless steel finish and the GE Monogram® badge located on the front center of the unit. The burner control knobs are located on the front panel that overhangs the cabinet. The model and serial numbers can be found on a label located behind the far left burner knob, or on the bottom of the unit.

The following models and serials are included in this recall:

Brand	Model Number Begins With:		And Serial Number Begins With:
Monogram®	LP Model ZGU364LRP ZGU484LGP ZGU486LRP	Natural Gas Model ZGU364NRP ZGU484NGP ZGU486NRP	AS, AT, AV, DS, DT, DV, FS, FT, FV, GS, GT, GV, HR, HS, HT, HV, LR, LS, LT, LV, MR, MS, MT, RR, RS, RT, SR, SS, ST, TR, TS, TT, VR, VS, VT, ZR, ZS, ZT

All LP models and only natural gas models that have been converted for use with LP gas are included in the recall. GE will notify known owners of natural gas units and provide a free repair for any consumers who converted their Rangetop with Grill to LP gas.

Sold by: General Electric authorized representatives and distributors nationwide from May 2008 through August 2011 for between $3,400 and $4,700, as determined by retailers.

Manufactured in: Mexico.

Remedy: Consumers who are operating the product on LP (propane) gas should stop using the product immediately, turn off the gas supply to the product, and contact GE to schedule a free repair.

Consumer Contact: For additional information, contact General Electric toll-free at (866) 645-3956 between 8 a.m. and 5 p.m. ET Monday through Friday, or visit the firm’s website at www.geappliances.com/products/recall

Please feel free to contact me if you have a personal injury or wrongful death or products liability matter involving a hip replacement procedure that you would like to discuss.  I’ll be happy to see if I can give you a hand.

Time Limits For Employment Civil Rights Claims

In an earlier post I discussed some of the process that is necessary to pursue an employment discrimination claim under federal or state civil rights laws.  That administrative process is a mandatory precursor to any employment claim brought for many types of employment discrimination claims.  For example, using two of the most common types of claims, you cannot sue your employer for race or sex discrimination unless you first go through the administrative process with the United States Equal Employment Opportunity Commission, the Iowa Civil Rights Commission, or a local civil rights commission at the county or city level.

That process begins with the filing of an administrative complaint.  Under either federal or state law, that administrative complaint must be filed within 300 days of the discriminatory conduct.  That 300-day deadline under state and federal law is not a joke and is strictly enforced by the courts.  Any administrative complaint filed after 300 days will be considered untimely and dismissed by the local, state, or federal agency.  This is important because, as I mentioned, you have no right to sue for employment discrimination unless you first properly file an administrative complaint, which includes timely filing it within the 300-day deadline.  So no proper and timely administrative complaint = No employment discrimination lawsuit.

To illustrate, say that you were passed over for a promotion.  You believe that your employer failed to promote you at least in part because of your race, sex, age, religion, etc.  To enforce your rights, you have to file an administrative civil rights complaint within 300 days of learning that you didn’t get the promotion.  You’ll forfeit your legal rights and not be able to sue for discrimination if you wait until Day 301 or later to file the administrative complaint.

There is a very narrow exception to the 300-day rule that only applies when an employer has engaged in or allowed a continuing course of discriminatory conduct.  If you can prove such a continuing series of acts, and at least one of them falls within the 300-day window, then all of the earlier acts, even those older than 300 days, will be included and the entire complaint will be considered timely.  But as I said, that exception is narrow and difficult to meet and it is better to ensure that you file your administrative complaint before any of the discrimination is older than 300 days.

I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.

What to Do if You are Involved in an Automobile Or Motorcycle Accident

Having a motorcycle or automobile accident can be a frightening experience, even if no one is seriously injured.  After experiencing an accident, your head may be swimming and you may feel a sense of panic.  Here are a few things to keep in mind:

1.       Remain at the scene until the authorities arrive and tell you that you can leave.  In Iowa, it is generally a crime to leave the scene of an accident.  If you do so, you risk losing your driver’s license as well as serious criminal charges.  In the event that there is a dispute over the accident later, you also want to be sure that your version of events is included in the police officer’s report of the accident.  An exception to this rule is if there are no other parties involved (such as hitting a parked car) and there are no injuries.  In that case, you may simply leave your contact information.

2.       Get medical attention promptly.  The adrenaline triggered by an accident can mask serious injuries.  If medical personnel are called to the scene, do not refuse treatment.  Allow them to do their job and examine you to make sure that you are not hurt.  There is also a legal reason for doing this.  If it turns out that you are injured and do have medical bills, refusing treatment at the scene may make it more difficult for you to collect compensation for those medical bills later, as the other side may argue that you were not injured by the accident but by something that happened later.

3.       Exchange information with the other driver.  Information to collect includes the person’s name, license plate number, driver’s license number and insurance information.  You also will want to record the names and contact information of any witnesses to the accident, as well as the police officers who respond to the call. 

4.       Do not admit fault.  Being in an accident can be a highly emotional experience.  You may feel compelled to soothe the other party involved by apologizing for the accident and accepting responsibility for it.  Realize that it is not up to you to determine who is at fault in an accident; it is up to our judicial system.  Even if you believe you were responsible, there may be a variety of factors impacting the accident that you are not aware of.  While it is always a good idea to be courteous to the other parties involved, it is best to minimize your contact with them and avoid making statements about the accident to any parties other than the police.

5.       Take notes.  As soon as you have talked to the police and medical personnel, sit in a quiet place and take notes about the accident.  Include information about the scene of the accident, the road conditions at the time, the events leading up to the accident as well as the accident itself.  You may be surprised at how quickly your memory of the details will fade.  If you are involved in litigation later, you may be questioned about the accident months or even years afterwards.  Your immediate recollections will be the most accurate.

If you are involved in an automobile accident, you may require the services of a personal injury or wrongful death attorney to seek compensation for your medical bills and other damages.  Please contact Erbe Law Firm for a consultation today to see if I can help out.

Your Rights Under The Family And Medical Leave Act (FMLA)

The federal Family and Medical Leave Act provides numerous employment protections for employees who need to miss work for family or medical reasons. In addition to the most familiar protection, discussed in an earlier blog post, the FMLA can be used by employees to take time off for serious medical conditions, both mental and physical, that affect you or a family member.

Employers are forbidden to deny legitimate requests for time off from work under the Family and Medical Leave Act. They are also forbidden to retaliate against employees who request or take time off.  Illegal retaliatory conduct can include:

• Demotions
• Refusing to keep your job open for you when you return to work
• Firing you
• Other discipline against you, such as a demotion
• Any other action affecting the terms and conditions of your employment

The FMLA also requires employers to give you notice of your FMLA rights and assist you in identifying whether an absence may be protected under the FMLA.  In other words, if you are hospitalized and miss work, which is an obvious FMLA situation, your employer must recognize that fact even though you may not have completed all of the necessary FMLA paperwork.

FMLA claims involve a complicated mixture of federal law and United States Department of Labor regulations.  It is essential to review your situation with an attorney if you believe that your FMLA rights have been violated.  Federal law requires that employers pay the attorney fees and litigation expenses of employees who successfully sue for a violation of the Family and Medical Leave Act.   Please contact Erbe Law Firm to schedule a free in-person consultation if you would like to discuss any FMLA issues.

Federal Government Warns About Dangers Of T.V. And Furniture Tip-Overs

In March of this year, an 11 month old died while watching TV with his dad and his 2-year-old sibling. The baby’s brother bumped into the furniture holding the TV and the TV fell onto the baby’s head and abdomen. Unfortunately, this is not a rare incident. Furniture and TV tip-over incidents are one of the top hidden hazards in the home.

Today, the U.S. Consumer Product Safety Commission (CPSC) is urging parents and caregivers to inspect and anchor furniture and TVs now, in order to protect young children from a preventable tragedy. A new data report (pdf) shows that between 2000 and 2010, CPSC staff received reports of 245 tip-over-related deaths involving children 8 years old and younger. More than 90 percent of the incidents involved children 5 years old and younger. In more than half of the 245 fatalities (56%), the child was crushed by the weight of the television, furniture, or appliance. The majority of these children suffered fatal injuries to the head (67%). In addition, more than 22,000 children 8 years old and younger are treated in hospital emergency rooms every year (2008–2010) for injuries related to instability or tipover of televisions, furniture, and appliances. And like the fatalities, a majority of these injuries (56%) are to the head.

“Children like to climb on furniture. Placing TVs on furniture not intended for them or having furniture that is not secured can have tragic consequences,” said Chairman Inez Tenenbaum. “These tragedies can be prevented by taking low-cost steps. Anchor those TVs and dressers, and protect your child or a child visiting your home.”

The most common tip-over scenarios involve toddlers who have climbed onto, fallen against or pulled themselves up on furniture. About 70 percent of children’s fatalities (169 incidents) involved falling televisions, and 27 percent (65 incidents) involved only furniture falling. Of the 135 child fatalities where furniture fell by itself or fell with a TV, the majority of incidents (64%) involved a chest, dresser, or a bureau. Often, these pieces of furniture have drawers that children can use to climb.

To prevent tragedies follow these safety tips in any home where children live or visit: Anchor furniture to the wall or the floor. Place TVs on sturdy, low bases. Or, anchor the furniture and the TV on top of it, and push the TV as far back on the furniture as possible. Keep remote controls, toys, and other items that might attract children off TV stands or furniture. Keep TV and/or cable cords out of reach of children. Make sure freestanding kitchen ranges and stoves are installed with anti-tip brackets. Supervise children in rooms where these safety tips have not been followed.

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml11/11345.html

Please feel free to contact me if you have a personal injury or wrongful death or products liability matter that you would like to discuss.  I’ll be happy to see if I can give you a hand.