Not testimonial. The Second Circuit has held that autopsy reports are not testimonail under Crawford v. Washington, and the failure to have the opportunity to cross-examine the author of such reports before their admission into evnidence does not violate the Sixth Amendment.

The decision in United States v. Feliz can be found here.

Dead. A police officer who was hit by a SUV operated by Second Circuit Judge John M. Walker, Jr. died. The accident is still under investigation, but the police had seen no need to have the judge tested for drug or alcohol use.

Not final. In Honeywell Int'l, Inc. v. Purculator Products Co., the court entered an order, granting summary judgment on the issue of liablity under the Employee Retirement Income Security Act. The case then settled. The defendant made an application to compel the plaintiff to pay attorneys' fees and costs. The plaintiff sought to appeal from the order granting summary judgment on liability, which was the predicate for the request for fees. The Second Circuit dismissed the appeal. The order was moot in that the case was settled and could not be appealed, and, to the extent that it was the predicate for the application for fees, an appeal could not be taken until the Court had decided that fees would be granted and the amount of such fees. Until that determination was made, the decision was not final and not appealable.

The decision can be found here.

One occurrence or Two? Well, it's mixed news for Larry Silverstein. The Second Circuit has held that the terrorist attack on the World Trade Center on 9/11 was one occurrence for certain insurers bound under the so-called Will-Prop form, but upheld the jury verdict finding that, for purposes of other insurers not bound by that form, the attack constituted two occurrences. This may warrant further discussion after I've had a chance to read it in full. It's a long one, over 70 pages.

The decision in SR International Business Insurance Co. v. World Trade Center Properties can be found here.

Substantial Compliance. The Second Circuit has held that substantial compliance with IDEA is not sufficient to prevent a preliminary injunction being issued against a school district. While the Secretary of Education is permitted to withhold funds from a school district that has not substantially complied with IDEA, that requirement does not provide a district to avoid injunctive relief if it substantially complies with the statute. It is required to provide a free, appropriate public education.

The Second Circuit, in DD v. New York City Department of Education, however, held that the plaintiffs were not entitled to relief immediately, but "as soon as possible."The case was remanded to the District Court for a decision under the correct standards. The Court suggested that the preliminary injunction motion be combined with the merits and that the entire controversy be adjuciated.

The decision can be found here.

Executory. A bankruptcy court held that a contract to exchange certain parcels of land for which all performance had been completed except for the reimbursement of certain construction expenses could be rendered fully executory, rendering it incapable of rejection, by a bankruptcy debtor when the final payment is tendered post-petition. On appeal, the District Court affirmed on the issue that the contract was an executory contract as of the petition date, but rejected the Bankruptcy Court's holding that executory contract status should be determined as of the rejection motion date. The District Court remanded the case to the Bankruptcy Court for further proceedings consistent with its opinion. The debtor appealed.

The Second Circuit dismissed the appeal, holding that the case was not final. The ultimate issue of whether the debtor should have been allowed to reject the contract was still before the Court. Although both parties asserted that the further proceedings would be ministerial only, the Second Circuit, nevertheless, held that appellate jurisdiction was lacking for lack of finality and declined to create a new exception to the final judgment rule.

The decision in COR Route 5 Co., LLC v. The Penn Traffic Co. (In re The Penn Traffic Co.) can be found here.

Chapter 3. Well, it's about time for another post relating to Martha Graham School and Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc. When previously before the Second Circuit, the Court had held that Martha Graham had transferred most of her works to the Martha Graham Center of Contemporary Dance, Inc. and remanded the case to the District Court to resolve the issue of who owned seven of her dances. On remand, the District Court rejected the plaintiffs' motion for a new trial and held that the Center also owned the seven dances. The plaintiffs appealed.

The Second Circuit held that the plaintiffs' motion for a new trial was untimely in that it was made more than a year after the original judgment.

The Second Circuit also held that certain evidence had been properly excluded and did not warrant reversal.

The decision in this case can be found here.

Presumption against preemption. There is a Supreme Court case, Buckman Co. v. Plaintiffs' Legal Comm., which held that state fraud-on-the FDA claims (claims alleging that companyies had fraudulently induced the FDA to approve their products, causing damage) were impliedly preempted by federal law. Michigan has a statute that narrows liability for companies making FDA-approved products. The law provides that if the device or drug is approved by the FDA, the company is immune from state law tort claims unless the company withheld or misrepersented information that would have altered the FDA's decision to approve the drug. The issue raised in Desiano v. Warner-Lambert & Co. was whether, under the rationale of Buckman, federal law also preempts traditional common law claism that survive a state's legislative narrowing of common law liability through a fraud exception to that statutory limitation. The Court, holding that there was a presumption against preemption, held that such a claim would not be precluded under Buckman.

The decision can be found here.