Court Digest

North Dakota
Judge rejects sentence reduction in fatal shootout case
BISMARCK, N.D. (AP) — A federal judge has denied a sentence reduction sought by a man convicted of murder and other charges stemming from a 1983 shootout in North Dakota which took the lives of two U.S. marshals.

Scott Faul argued that his breathing problems and conditions of his incarceration have created an increased risk of complications from COVID-19. According to federal documents, Faul also says his imprisonment is unlawful because of bias and insufficient evidence.

Faul was sentenced to life in prison on murder charges and an additional 15 years on other offenses.

U.S. District Judge Peter Welte recently denied Faul’s request, saying it’s up to the federal Bureau of Prisons to file a motion with the court for compassionate release.

Welte also said Faul’s allegations of bias and insufficient evidence “attacks the same judgment on the same grounds” as his previously rejected motions, the  Bismarck Tribune reported.

Faul was a member of an anti-government group called the Posse Comitatus when he was involved in the 1983 shootout near Medina during which marshals Kenneth Muir and Robert Cheshire were killed.

Maine
High court won’t hear fishermen case against ocean monument
PORTLAND, Maine (AP) — The Supreme Court ruled on Monday that it will not consider a fishing group’s attempt to challenge the creation of a large federally protected area in the Atlantic Ocean.

The group sued to try to get rid of the Northeast Canyons and Seamounts Marine National Monument, which became the first national ocean monument in the Atlantic when President Barack Obama created it in 2016.
The area consists of 5,000 square miles off New England, and it is home to fragile deep-sea corals.

The fishermen sued in federal court saying the establishment of a protected zone where they have historically fished for lobsters and crabs could hurt their livelihoods. Federal district and appellate courts ruled that the monument was created appropriately by Obama, who used the Antiquities Act to establish it.

The high court denied a request to take a look at the case. Chief Justice John Roberts wrote that the creation of a national monument was “of no small consequence,” but the petitioners did not meet the criteria to bring it before the Supreme Court.

Roberts also wrote that the court has never considered how such a large monument can be justified under the Antiquities Act, which President Theodore Roosevelt created more than a century ago to preserve artifacts such as Native American ruins. Roberts wrote it’s possible the court could be presented a better opportunity to consider that issue in the future.

“The Northeast Canyons and Seamounts Marine National Monument at issue in this case demonstrates how far we have come from indigenous pottery,” Roberts wrote.

The fishing group is let down by the court’s decision, but also feels that Roberts’ statement is a signal for others to bring similar cases, and suggests the high court “will soon resurrect meaningful limits on the President’s monument-designation power.”

The creation of the monument has been controversial and politicized from the beginning. It became a campaign issue for President Donald Trump, who moved to allow commercial fishing in the area in 2020. Trump heralded the move as a win for Maine lobstermen, although the monument is located southeast of Rhode Island and Cape Cod.

President Joe Biden signaled in January that he would ask the U.S. Department of the Interior to reassess Trump’s rule change.

Environmentalists cheered the Supreme Court’s decision not to consider the drive against the monument. Conservation groups have for years lobbied to preserve the monument and other protected areas to try to save vulnerable underwater ecosystems.

“Restoring protections is essential to safeguarding its fragile biological resources from industrial exploitation, bolstering the ecosystem’s resiliency in the face of a changing climate, and safeguarding this special place for generations to come,” Kate Desormeau, senior attorney for the Natural Resources Defense Council, said in a statement.


New Hampshire
Former Dartmouth students not liable for $4.5M in grill fire
Two former Dartmouth College students who accidentally started a grill fire that gutted a dormitory in 2016 don’t have to reimburse the school’s insurance company for a $4.5 million claim, the New Hampshire Supreme Court ruled.

Fire officials said an unattended charcoal grill outside the window of a dorm room sparked the fire, which spread to the roof. The dorm’s 70 residents escaped, but needed new housing.

The Valley News  reports that Factory Mutual Insurance Co. paid Dartmouth $4.5 million and then brought a claim against the former students, who went to court. A judge ruled in the students’ favor, saying that they had been coinsured by implication under the college’s fire insurance policy.

Factory Mutual appealed. It also noted that Dartmouth’s student handbook prohibited charcoal grills and open flames in student dorms, and that violation of the policy “may” result in liability for damage if there’s a fire. The two students had said they were expelled for causing the fire.

The court, in its March 10 opinion, wrote that “treatment of the subject of insurance in the student handbook and other college documents reinforced a reasonable expectation that the responsibility to insure dormitory buildings was allocated to Dartmouth College.”

Nevada
State announces $45M settlement with McKinsey over opioids
LAS VEGAS (AP) — Nevada has struck a $45 million settlement deal with McKinsey & Company for the global consulting firm’s role in advising opioid makers how to sell more prescription painkillers amid a national overdose crisis.

The western state reached the deal after sitting out a multi-state settlement with McKinsey announced in February. The hard bargaining has allowed Nevada to win a settlement that’s three and a half times larger than the average settlement with other states.

“Nevada needed and deserved more than what was being made available to us in the multi-state settlement,” state Attorney General Aaron Ford said Monday. He said the state would have received $7 million had it stayed in the multi-state deal.

The $45 million will be paid in two installments of $23 million in 45 days and $22 million in 120 days.

McKinsey said the deal reached with Nevada is “consistent with the commitment we made in February to be part of the solution to the opioid epidemic,” and it “believes its past work was lawful.”

The New York-based company agreed to pay $573 million in February in a deal with 47 states, the District of Columbia and five U.S. territories. It also at the time announced separate settlements with Washington state for $13.5 million and West Virginia for $10 million.

“We deeply regret that we did not adequately acknowledge the tragic consequences of the epidemic unfolding in our communities,” McKinsey Global Managing Partner Kevin Sneader said at the time.

Opioids, which include prescription drugs like OxyContin and illegal substances such as heroin and illicit fentanyl, have been tied to more than 470,000 deaths in the U.S. over the past two decades.

McKinsey’s role came into the spotlight in recent months when OxyContin maker Purdue Pharma LP sought to settle claims against it in bankruptcy court. Legal documents showed McKinsey worked with Purdue to boost sales even as the resulting opioid epidemic emerged.

The consulting firm tried to “supercharge” lagging sales of OxyContin in 2013, according to some documents and it encouraged the drugmaker’s sales representatives to focus on doctors prescribing high numbers of the drug and encourage them to prescribe patients more potent doses.

Nevada, with a population of more than 3 million, has been among the hardest-hit states by the crisis. By 2016, it had enough opioid prescriptions for 87 out of 100 residents while overdoses exceeded the national average, according to Ford’s office.

The state separately is pursing a wide-ranging lawsuit against Purdue along with the company’s former president, his family, other drugmakers, distributors and pharmacies.

The civil lawsuit accuses the defendants of violating state laws about deceptive trade practices, false claims, racketeering, negligence and public nuisance.


Pennsylvania
Lawyers battle over ‘race-norming’ in NFL dementia tests
PHILADELPHIA (AP) — The court-appointed lead lawyer for thousands of retired players suing the NFL pledged Monday to try to remove race as a factor in dementia testing, but lawyers for Black players demanded he release the data on payouts by race in the $1 billion concussion settlement.

They argue that Black men are being denied awards that average more than $500,000 because of testing methods that assume Black people have lower cognitive function than white people.

That makes it harder to show they’ve suffered neurological damage linked to NFL concussions.

Lawyers challenging the “race-norming” practice insist they need to be part of the latest round of mediation with the NFL to ensure fairness for Black players, who make up the majority of the 20,000-member class of retired players.

“The devil is always in the details,” said lawyer Cy Smith, whose civil rights challenge to the race-norming practice was thrown out this month by the judge overseeing the NFL case, Senior U.S. District Judge Anita B.
Brody. He has appealed her decision to a federal circuit court.

“It’s just very hard after the fact to make sure that Black players are carefully represented if you don’t have a seat at the table,” Smith said.

Christopher Seeger, whom Brody appointed to serve as class counsel for the players, clawed back at Smith’s firm in a caustic memo filed Monday. He insisted he could resolve the race-norming issue — which Smith and others say developed on his watch — without their help.

Seeger, in the filing, agreed to seek “purely race-neutral demographic norms” and “investigate whether any class member has been disadvantaged by race norming.”

“The process is not simple, and it will take time. Demographic norms that adjust for race, when clinically appropriate, have been used for decades and are generally accepted by experts in the field of neuropsychology,” he wrote.

He stopped short of pledging a wholesale review of the tests scored to date. About 570 of the 2,000 retirees filing dementia claims so far, or 28%, have gotten awards. And thousands more were tested but never filed claims because their scores did not appear to qualify them for payments.

NFL spokesperson Brian McCarthy did not immediately return a message seeking comment on whether the NFL would agree to eliminate race-norming in the testing and review prior claims and test scores.

Smith and others believe the claims administrator could fairly quickly sort the data and payouts by race.

There has long been acrimony in the case between Seeger and dozens of other lawyers involved over terms of the settlement and the fact the judge awarded him more than $51 million of the $112 million in legal fees.
He joined the case after the first concussion lawsuits were filed against the NFL in 2011. Two years later, he helped steer a surprise $765 million settlement that kept the NFL from disclosing in court what it knew about concussions and head injuries. The cap was later lifted, and the payments, now nearing $800 million, are expected to reach more than $1 billion.


Idaho
County sued for sheriff’s captain’s alleged misconduct
BOISE, Idaho (AP) — A county in Idaho is facing three separate lawsuits that accuse a sheriff’s captain of misconduct, including threatening to assault a now-former deputy and releasing personal information online while using a fake name.

Three men accused Valley County Sheriff’s Capt. David Stambaugh of the misconduct in lawsuits filed last week.

All three lawsuits were filed by Joseph Filicetti, a Boise attorney who often represents police officers, the Idaho Statesman reported. The three plaintiffs are James Cole, Jason Speer and Ed Parker.

The lawsuits also accuse Valley County Sheriff Patti Bolen of negligently hiring and retaining Stambaugh.

A Valley County public information officer told the newspaper that the county could not comment on the pending litigation. Stambaugh did not return requests for comments made by the Idaho Statesman.