Bob Uecker is the radio broadcaster for the Milwaukee Brewers. In June 2006, Mr. Uecker petitioned the Milwaukee County Circuit Court for an injunction against Ann E. Ladd alleging that Ms. Ladd, a self-described “devoted fan,” had continually harassed and stalked him for a period of years.

Mr. Uecker filed an affidavit in support of his allegations. According to Ms. Ladd, Mr. Uecker and/or the Milwaukee Brewers posted his affidavit to a website called thesmokinggun.com, on June 2, 2006. On September 8, 2008 Ms. Ladd filed a complaint alleging, among other things, that Mr. Uecker and the Brewers defamed her by posting the affidavit to that website.

An action to recover damages for a defamatory communication is barred if not commenced within two years after the cause of action accrues. WIS. STAT. § 893.57. After a hearing, the circuit court concluded that Ms. Ladd’s claims for any matters occurring before September 7, 2006 were barred by this statute of limitation. She appealed, arguing that her cause of action renewed every time someone accessed the information online.

The Wisconsin Court of Appeals disagreed. Said the court:

We hold that “republishing” the allegedly defamatory information about Ladd on the Internet is not actionable. Accepting as we must on this review that Uecker or the Brewers were responsible for the initial publication to thesmokinggun.com on June 2, 2006, that act is outside the statute of limitations. Uecker and the Brewers have no control over other websites’ use or dissemination of the same information on the World Wide Web. We reject the notion that each “hit” or viewing of the information should be considered a new publication that retriggers the statute of limitations.

 This decision brings Wisconsin in line with other jurisdictions that have adopted the single publication rule. The rest of the decision is not particularly ground-breaking, but does serve as a useful outline of Wisconsin law regarding defamation and invasion of privacy, and the various privileges and defenses to such claims.

In the world of sports and entertainment, the celebrity is usually the party claiming to have been defamed – so in that sense this is not a decision about which artists and athletes are likely to be cheering. In today’s online world, however, the decision makes eminent sense.

I thought we would stop seeing these cases as the product faded from the marketplace, MTD sent out replacements and consumers stopped using the product.  However, reports of injuries from these MTD products are continuing to arise even though we are 4-5 years post-product recall.  The Statute of Limitations for a negligence and/or product liability claim such as these is 3 years from date of injury.  So, assuming the product was recalled in 2006 and manufactured even earlier, consumers still have a claim against MTD for 3 years from date of accident.  Whether the injured consumer owns the MTD snowblower, rented the MTD snowblower or even borrowed the MTD snowblower, the injured party should contact an attorney immediately to assist them with their claim against MTD.

If you or someone you know has an MTD snowblower that falls within the scope of the CPSC recall and the product has not yet exploded, I urge you to contact MTD to discuss getting a replacement before someone gets injured.

A plaintiff’s attorney accepting any malpractice case must be prepared to outlay upwards of $50,000 in costs to see the case to trial.  This, along with countless attorneys’ hours, is the true price of bringing a claim that, statictically speaking, juries dont like.  Defendant doctors, or more accurately, their insurers, typically do not negotiate settlements until the eve of trial, if ever.  This means the plaintiffs’ must endure the cost of hiring expert after expert and be prepared to bring that expert into to court.  Together, these factors make the “minor” medical malpractice claims impracticable to pursue, and the major cases a huge risk for the Firm.  In larger, complex cases, the $750,000 cap can work towards making a claim financially unfeasible for the attorney and client if the price tag of experts becomes too costly.

Attorneys “dabbling” in plaintiffs medical malpractice should be very leary of these realities when screening potential new cases.  The Warshafsky Law Firm employs a full-time M.D./J.D to do medical malpractice new case screenings and reviews.  Unfortunately, having a Doctor or Nurse on staff has almost become a necessity to practice plaintiffs medical malpractice given the tough litigation climate.

The scary aspect for consumers is that claims are down in Wisconsin likely because of litigation truths, not because Wisconsin residents have enjoyed an increased standard of care from physicians and hospitals.

For example, how would you know that Facebook has an email just for subpoenas (subpoena@facebook.com)?  Do you know the office in Palo Alto and telephone and fax number for the Facebook department that accepts service?

You’ve gotta check out this site.  It is meant for law enforcement but open to the public.

The case arose when Bose, the owner of the mark WAVE, filed an opposition to Hexawave’s registration application for HEXAWAVE. Hexawave countered by filing a cancellation of Bose’s mark alleging fraudulent renewal of the mark based on the inclusion of audio tape recorders and players in the described goods even though these products had been discontinued. The Trademark Trial and Appeal Board (“TTAB”), following a number of its recent decisions, found that it was a material misstatement, that Bose should have known it was false, and that Bose’s stated reason for not deleting the products from the description was not reasonable.

The court agreed that the description was a material misstatement, which finding Bose had not contested, but decided that the reasonableness of Bose’s reasoning was irrelevant to the proper analysis. The court focused on the elements of fraud, ruling that the TTAB has mistakenly supplanted the requirements of fraud with a mere negligence standard. The court stated that “Subjective intent, however difficult to prove, is an indispensable element in the analysis.” Id. As in other areas of fraud, intent may be inferred from indirect or circumstantial evidence, but the court placed a significant burden of proof on those alleging fraud requiring clear and convincing evidence.

The ruling should come as a relief to many trademark registrants. The TTAB’s recent decisions on fraud had clearly lowered the threshold of fraud on the PTO to the point that any error in anything filed in connection with a trademark registration had the potential of torpedoing valuable registrations. Restoring the threshold of fraud to its historical levels should remove Damocles’ sword hanging by the thread of a single error over every trademark application or renewal.

There are times when these workers’ beliefs are in fact supported by evidence, such as discriminatory statements made by the employer during a job interview, the employer having hired a far less-qualified worker who was not in the protected class, etc.  So I will acknowledge, as Kurt Cobain once said, “Just because you’re paranoid doesn’t mean they aren’t after you.”   And hey, my job is representing workers who - in my view of the evidence- the employer was “after.”

However, job applicants  should know there are many times when hiring employers are not “after” you.

There are many, many non-discriminatory reasons (fair and unfair) that an employer may have for not hiring someone.  There may be 100 more qualified applicants that you don’t know about.  The employer’s owner may have wanted to hire his incompetent nephew for the job, which is unfair, but is not unlawful under WI law.

There are many times when job applicants” beliefs of discrimination are not borne of hard evidence, but instead stem from the frustration in not getting a job.  This frustration is completely understandable, as is wondering about discrimination, as discrimination does exist and is not uncommon.

However, just because discrimination is “out there” doesn’t mean it is everywhere.

Further, even if discrimination is in play for a given job opportunity, it does you no good to adopt defeatist beliefs like “They won’t hire me because of my age- heck, most employers won’t hire me because of my age.”  Even if it were true that most employers exercise age-discrimination in hiring (which is not true in my view), it doesn’t do a worker any good to stew about that, or lose motivation because of that.  Again, most of the time, discrimination is not at issue in hiring decisions.

For those occasions where there is evidence that discrimination is an issue, that is not something to defeat you, but rather an obstacle to work around.

In my view, the most common areas of discrimination in job-hiring context, which are supported by the most evidence, is discrimination based on the applicant’s disability, age, or criminal record (criminal record is basis for a protected class under Wisconsin law, although this is not the case under federal law or many other states’ laws).  Within these protected classes, people who fall on the end of the spectrum- people with the most severe disabilities and medical needs, people of increasingly advanced age, people convicted of types of crimes that are strongly shunned by the public- probably are wise to keep potential discrimination in mind as they apply for jobs.

However, such at-risk workers should not dwell on discrimination, or stew about how bad it is (even though it is).  Rather, discrimination should be thought of as something to adjust to.  If your reality is that you are dealing with a hiring employer with discriminatory beliefs (e.g. they believe that a person over 70 cannot perform the job at issue), then your task is to politely deal with that belief and try to change it (e.g. point out the rich experiences and resume that a 70-year old has that a 30-year does not).  Anticipate discriminatory concerns (e.g. that an older worker will want to retire abruptly), and affirmatively and politely address them (e.g. explain what your own goals are, and how your work life with the employer would not live out the employer’s fears).

I don’t want to get too motivational-speaker-like here, and I acknowledge that there are a whole lot of people, including many clients I’ve had, who can tell me a lot more than I can tell them about job-hunting tips.  But when it comes to concerns of discrimination, real or perceived, I can tell you firsthand that it is counterproductive to deal with those concerns by stewing about them or viewing them too negatively.  Again, discrimination is something you can deal with and you can overcome, if and when it presents itself.

The U.S. Supreme Court agreed to review the en banc decision of the Court of Appeals for the Federal Circuit in In re Bilski (545 F.3d 943). In that decision, the Federal Circuit rejected its previous “useful, concrete and tangible result” test for patentable subject matter articulated in State Street (149 F.3d 1368). Finding that test inadequate or inappropriate, the court articulated two tests for patentability that are commonly referred to as the “machine-or-transformation” test. Under the new test, a claimed process is patentable if “(1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing.”

The Bilski decision has called into question process claims in many types of patents including business methods, software, and medical diagnostics. For example, most software patents claim methods of performing some task and a general purpose computer (e.g., a personal computer) is probably not a particular machine. If so, many software patents that are patentable (under current law) when embodied in a physical form, such as a computer or storage disc, may be invalid.

In the patent at issue, Bilski claimed a method of hedging risks in commodities trading. Claim 1 reads:

A method for managing the consumption risk costs of a commodity sold by a commodity provider at a fixed price comprising the steps of:

(a)        initiating a series of transactions between said commodity provider and consumers of said commodity wherein said consumers purchase said commodity at a fixed rate based upon historical averages, said fixed rate corresponding to a risk position of said consumer;

(b)        identifying market participants for said commodity having a counter-risk position to said consumers; and

(c)        initiating a series of transactions between said commodity provider and said market participants at a second fixed rate such that said series of market participant transactions balances the risk position of said series of consumer transactions.

The steps of the claimed method involve the manipulation and use of information, but do not transform a physical object (transformation of information or data is not transformation of a particular article). Finding that the claims did not address patentable subject matter under the machine-or-transformation test, the court rejected all of the claims in the patent application.

Bilski petitioned the Supreme Court to review the Federal Circuit’s decision raising the following two questions:

Whether the Federal Circuit erred by holding that a “process” must be tied to a particular machine or apparatus, or transform a particular article into a different state or thing (”machine-or-transformation” test), to be eligible for patenting under 35 U.S.C. § 101, despite this Court’s precedent declining to limit the broad statutory grant of patent eligibility for “any” new and useful process beyond excluding patents for “laws of nature, physical phenomena, and abstract ideas.”

Whether the Federal Circuit’s “machine-or-transformation” test for patent eligibility, which effectively forecloses meaningful patent protection to many business methods, contradicts the clear Congressional intent that patents protect “method[s] of doing or conducting business.” 35 U.S.C. § 273.

The Supreme Court has now agreed to review the decision. Damocles’ sword has been hanging over software patents for some time, and it may fall with the Court’s ruling.

In recent years the Supreme Court has taken an increased interest in patent law granting review in about one case a year. The Court has also displayed little esteem for the Federal Circuit’s patent jurisprudence (the Supreme Court has generally rejected hard, fast rules favored by the Federal Circuit for more flexible, imprecise rules that are harder to apply). In fact, in the last five patent cases it reviewed, the Federal Circuit has garnered a total of two votes to affirm compared to 43 votes to reverse-a remarkably low number of favorable votes. Thus, if history is any indication, another reversal would seem imminent. However, the Supreme Court’s decisions have also exposed a belief in the members of the Court that too many patents are being issued. Therefore, it would appear that Bilski will find it difficult to get many votes for a broad test of patentability that would include his claims. Given those trends, what is the likely outcome? I expect that Bilski wins the battle (the Supreme Court rejects the Federal Circuit’s narrow test of patentability for a looser, broader test), but loses the war (Bilksi’s patent still doesn’t pass whatever test the Supreme Court imposes).

In the past, the Court has generally construed section 101 of the Patent Act (defining patentable subject matter) very broadly, but the current Court (even with an impending retirement) has been more skeptical of the patent system. The high Court’s recent trend towards hostility to patents and low regard for patent quality does not bode well for the holders of software patents. Furthermore, the last time that the Supreme Court took a case on the scope of patentable subject matter was 1981-long before the digital revolution and the emergence of the internet. Therefore, the Court’s prior decisions may not be very helpful to the Court, or court observers. While it is far from clear what the end result will be, it is clear that the stakes are high for both owners of method patents and for those facing accusations of infringing those patents.

I think it is safe to say that most people involved in car accidents suffer from these injuries.  Many times they go away in a matter of weeks or months.  Other times it takes a lot longer.  It really depends on the person.

Benjamin Broome, M.A. has a good diagram and discussion of what he has found in dealing with attorneys who litigate these cases.

I pretty much agree that there are important points to make in a soft tissue car accident injury case.  Mr. Broome writes:

First it is important to explain that soft tissues all have microscopic sensory nerves that run through them. Next, it can be understood that the swelling and disruption of the soft tissues immediately following an injury put pressure on these nerves resulting in the pain that we all feel for a few days after an injury. Finally, it should be shown that in these more severe cases, microscopic scar tissue can build up within the soft tissues continuing to distort the nerves, causing pain, even after the swelling of the initial injury has subsided. This scar tissue and the resulting sensory nerve disruption is the physical source of the permanent pain in most of these soft tissue cases.

Unlike a case were someone breaks a bone or tears a ligament there really isn’t any easy way to see the injury.  Identifying a broken bone on an X-Ray is almost common knowledge.  Ask someone to identify “straightening of the lordosis” and they may ask whether you’re talking about Star Wars or Star Trek.

Anyway, it is a quick read and informative.  I’ve used Medical Legal Art’s diagrams in many of my trials.   A picture is worth a thousand words.

If you have questions about an accident where you suffered a soft tissue injury in Wisconsin feel free to contact me.  I’d be happy to discuss your situation.

www.jonpgroth.com

Jon Groth is a Wisconsin Personal Injury Attorney handling cases throughout Wisconsin and most recently in Jackson, Kenosha, Sheboygan and Wauwatosa.

CNET NEWS reports that Judge Denny Chin of the U.S. District Court for the Southern District of New York issued the extension order yesterday in response to a request by several authors. Google had asked for an extension of only 60 days.

I wanted to direct everyone to a few interesting things in this Fact Book.   Page 31 asks “Is Wisconsin ‘Overlawyered’?”.  The Civil Justice Fact Book states, “Wisconsin, with about 2 percent of the U.S. Population, has about 1.3 percent of the country’s lawyers.”  It goes on to say that Wisconsin’s attorneys are “slightly older” than the national average with “a median of fifty years of ages versus a national median of forty-seven.”

The conclusion is that “Wisconsin seems to have about one-third fewer lawyers per capita than the rest of the country and it is not catching up.”

Interesting stuff.  I though Wisconsin would have more attorneys based upon our diploma privilege.  But, I’m wrong.

Keep an eye out for more comments on the Civil Justice in Wisconsin, A Fact Book.  I’ll be sure to blog some more about it at www.jonpgroth.com.