Largent v. Reed, No. 2009-1823, slip op. (Pa. C.P. Franklin Co. Nov. 8, 2011).  Trial courts continue to allow discovery of social network (specifically Facebook) user profiles, and to deflect the privacy arguments offered to limit such discovery.  In Largent, a personal injury Plaintiff refused to provide access to her Facebook account as part of civil discovery.  In granting the Defendant’s Motion to Compel, the court provided an excellent synopsis of the overall state of the law in this area, a useful primer on the security and privacy setting available in Facebook, and illustrates the trend that courts throughout the country are refusing to view Facebook postings as “private.”  In fact, the court in Largent says:

“There is no reasonable expectation of privacy in material posted on Facebook. Almost all information on Facebook is shared with third parties, and there is no reasonable privacy expectation in such information.”  Id at 9 (internal citations omitted).

In response to the Plaintiff’s argument that she had modified the default account settings to provide more “privacy” on her account, the court further held:

[M]aking a Facebook page “private” does not shield it from discovery. This is so because, as explained above, even “private” Facebook posts are shared with others.  Id at 10 (internal citations omitted).

The Largent court closes its discussion of the fact that subpoenas served directly upon Facebook are improper, per the Stored Communications Act, see 18 U.S.C. §§ 2702-03, and that a request for Facebook access must have some good faith basis, and not be a mere fishing expedition.

Largent illustrates what appears to be the emerging majority rule on social networking discovery: if you can demonstrate a good faith basis for seeking the material, and make the request upon the person with the account (rather than the social network itself), the discovery will likely be permitted.  Whether the reasoning of Largent may apply to a social network or similar site with greater user privacy and less ubiquity, however, remains to be seen.

A Primer on the difficulties a Contractor Faces When Dealing With Change Work

(published in Magazine of University of Florida’s School of Building Construction)

Click Here to View Article

A. The Traditional Setting

1. The Relationship

In this setting, there is no contract between the general contractor and architect but rather only contracts between the owner/general contractor and owner/architect. This creates a triangular relationship that often leads to tension.  This is because the construction process seldom unfolds as anticipated. Things change – especially in construction – and this is the subject of our article.

2. The Standard Contract

The American Institute of Architects (“AIA”), among many other things, sells construction contract forms which all the various trades utilize. Because of their popularity, we use AIA forms as our examples in this article.

3. The Work Begins

With a complete design, and with bidding finalized, contractors are chosen and the work begins.  Thereafter, the need for numerous changes almost certainly arises. Why? The reasons are endless.  Examples include design conflict, change of owner preference, out of sequence construction, and problematic physical condition(s).  After generating questions to the designers, the various trades then submit proposed changes to the construction administrator.

4. Change Work

Change work is typically done by way of a written modification to the contract; most often as a change order. The AIA’s general conditions define “Modifications” as (1) a written amendment to the contract signed by both parties, (2) a change order, (3) a construction change directive or (4) a written order for a minor change in the work issued by the Architect.  Per the AIA, a change order shall be based upon agreement between the developer, contractor, and architect.  The AIA requires the architect to prepare the change order and the developer to sign it, indicating an agreement as to (1) change in the work, (2) the amount of the adjustment, if any, in the contract sum and (3) the extent of the adjustment, if any, in the contract time.  An unsigned change order may mean the general contractor does not get paid.

5. Schedule

Perhaps most important to any developer is the project’s schedule and change in the work tends to affect that schedule. This is why construction contracts typically provide for liquidated damages, which are damages to which parties contractually stipulate as a reasonable estimation of actual damages to be recovered by one party if the other party breaches.

B. The Conundrum in Contracting

1. Changes Tend to Disagree with the Schedule

Given the importance of the schedule and the potential for damages, should a contractor stop the work to get the change order signed? In other words, does the contractor proceed with the work, or should it wait for the signed change order?

2. Risk Management

While there are no simple answers to these questions, there are protections the contractor can put in place to better manage this dilemma, which include:

1. Minimizing disputed change work based upon ambiguities, errors, omissions, or discrepancies in the bid documents.  These disputes often arise because of design conflict, as in a mechanical plan conflicting with a structural plan because, say, a drainage pipe cannot run through a structural beam. Owners often take the position that contractors should properly study the design during the bid phase and therefore refuse to pay for change work and attendant project delays based upon a design conflict.  Modification to the contract documents during the bid phase can serve to eliminate, if not minimize, these design conflicts.
2. Address this dilemma at a pre-construction conference and build protections into the contract.  Meeting minutes should be kept and signed by all the parties present to confirm accuracy.
3. Prepare detailed change order proposals to reduce the time associated with questions from the construction administrator regarding the change order.  Price and schedule analyses should be enclosed in the proposed change orders.
4. Document the file.  While the contractor may be confident, even certain, that the change order will be signed, it can never be too sure.  When in doubt, document the file.  When not in doubt, document the file.

So the contractor has sent its letter memorializing why the change order is necessary and detailing its efforts to get it signed without delaying the work.  But what should be done in the meantime?  If the contractor proceeds, it may not get paid for that work.  If it doesn’t proceed, it may be in breach of its contract and face a lawsuit for construction delays.  The practical approach is to (1) submit the detailed proposed change order, (2) enclose within the submission the documents showing the changes (e.g., the architect’s revisions), and (3) and specify that the project will be delayed, through no fault of the contractor, until the change order is signed.

1. Beware of field orders.   The architect issues these orders to clarify specifications, deal with technical execution problems, or resolve site access difficulties.  The architect has the authority to order minor changes in the work not involving adjustment in the contract sum or extension of the contract time and not inconsistent with the parties’ intent.  Such changes shall be done in writing and shall bind the owner and contractor.  If the field order increases costs or time, it should lead to a change order.
2. If there is disagreement or delay on the change order, demand a construction change directive (“CCD”).  The AIA defines a CCD as a written order prepared by the Architect and signed by the developer and architect, directing a change in the work prior to agreement on adjustment, if any, on the contract sum or contract time or both.  CCDs are used in the absence of a total agreement on a change order.  The architect resolves disagreements about CCDs, per the AIA.  The AIA, in fact, provides that, pending final determination of the CCD’s cost, the contractor may request payment for CCD work, subject to the architect’s interim determination. Because the AIA requires the architect to prepare the CCD, a contractor may attempt to modify that language to state that the contractor shall prepare the CCD.
3. Agree to a third-party decision-maker, other than the architect, to make onsite determinations.  Dispute over change order work typically arises because the owner and/or architect believe (1) the proposed change work was part of the contractors’ initial scope, (2) the cost of the proposed change is unreasonable, (3) the additional time necessary to complete the change work is unreasonable, or (4) a change is deemed minor and the contractor disagrees. Someone, other than the architect, may arguably be more objective with respect to these disputes.
4. Require that someone with authority to sign off on change orders remain at the site.
5. Utilize two-part change orders to separate the portion of the estimate about which the parties disagree and the portion about which the parties agree.
6. Enter into a guaranteed maximum price (with open books) contract and share in the savings so as to incentivize everyone to finish the project expeditiously.

Consult a construction lawyer.  The manner in which a contractor may protect itself will vary with virtually every project.  A qualified construction lawyer should be able to assist with a thoughtful and deliberate approach to a contract that preliminarily addresses most of the contractor’s change work concerns.

C. Conclusion

Although problematic, there are measures that can be put in place, preferably early in the process, that can make the change work process more manageable.  That said, construction contracts will always be a minefield ripe for conflict.  So, document your file and try to avoid performing work on an unsigned change order.

Cole, Scott & Kissane, P.A. is proud to announce that Partner, David Salazar, of the Miami office will be published in the upcoming publication by the M.E. Rinker, Sr. School of Building Construction of the University of Florida.

“Causation Defense Prevails”

To prevail in a medical malpractice action the plaintiff must establish the following as to each defendant: the standard of care owed by the defendant, the defendant’s breach of the standard of care, and that said breach proximately caused the damages claimed.  Citing Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015, 1018 (Fla. 1984).  The holding in Hollywood Medical Center, Inc. v. Alfred, Nos. 4D09-4878 and 4D10-1003 (Fla. 4th DCA 2012) highlights the importance of the third element. Hollywood Medical Center (hereinafter “HMC”) appealed a final judgment in favor of the plaintiff and argued the trial court erred in denying their motion for directed verdict, as the plaintiff failed to prove that any negligence on the part of HMC’s nursing staff affected Ursuline Alfred’s outcome, or that had the negligence not occurred, Alfred more likely than not would have survived.

Alfred presented to HMC after having suffered a mal seizure.  HMC nursing personnel evaluated Alfred 8 minutes after she arrived to the emergency room.  They recorded her vital signs and described her as a level 2 patient; however, her vital signs corresponded to a level one patient, meaning she required the most intensive care.  The emergency room physician simultaneously presented at bedside and ordered medication to prevent another seizure.  Thereafter, Alfred went into full cardiac arrest and was pronounced dead 38 minutes after arriving at the hospital.

Plaintiff’s experts opined Alfred suffered a pulmonary embolism, which she could have survived had the physician intubated Alfred upon his initial evaluation.  With respect to the nursing care, Plaintiff’s expert opined nursing personnel fell below the standard of care when they failed to take Alfred’s vital signs immediately upon presentation to the hospital, characterizing her as a level 2 patient, and failing to question the physician’s choice of drug treatment.

HMC moved for directed verdict as to its vicarious liability for the physician and its nursing staff.  HMC argued the plaintiff failed to prove that the nursing staff’s breach in the standard of care caused Alfred’s death.  Plaintiff only proved the physician’s failure to intubate contributed to Alfred’s death.  No one testified the nurses’ failure to act adversely affected Alfred’s outcome.  Without such testimony as to causation, the defendant is entitled to a directed verdict.  A plaintiff in a medical malpractice action must show more than a decreased chance of survival because of the defendant’s conduct.  Rather, the evidence must show the acts or omissions adversely affected the patient’s outcome.

Practice Note:

If there are several possible causes of injury to the plaintiff, and the evidence does not eliminate the non-negligent causes, the plaintiff has not met his burden of proof.

For further assistance or questions, please contact:

·         Paula Parisi (email to: paula.parisi@csklegal.com; 813-864-9311)

Partner in Cole, Scott & Kissane, P.A.’s Medical Malpractice Group.

Affidavits and Declarations must reflect an individual’s personal knowledge, and terms such as “belief” and “understanding” do not reflect personal knowledge.  Therefore, the Court may disregard such declarations, and/or strike such declarations.  Read More Here

 SUPREME COURT OF UNITED STATES ALLOWS THIRD PARTY RETALIATION CLAIMS UNDER TITLE VII

Description of Third Party Retaliation Claims

A third party retaliation claim occurs when an employee engages in protected activity, such as complaining that he or she was unlawfully discriminated against under Title VII, and the employer retaliates by taking an adverse employment action against a coworker or third party instead of the employee who engaged in the protected activity.

United States Supreme Court Addresses Third Party Retaliation Claims

In the Supreme Court case of Thompson v. North American Stainless, LP, 131 S.Ct. 863 (2011), the employee/plaintiff, Eric Thompson, sued his former employer under Title VII’s anti-retaliation provision.  Thompson alleged that his former employer violated Title VII’s anti-retaliation provision by terminating him three weeks after receiving notice that his fiancé, who worked for the same employer, filed a charge of gender discrimination with the Equal Employment Opportunity Commission (“EEOC”).  The district court entered summary judgment in the employer’s favor and ruled that Title VII does not recognize third party retaliation claims, and the U.S. Court of Appeals for the Sixth Circuit (Kentucky, Michigan, Ohio and Tennessee) affirmed the decision before it was appealed to the Supreme Court.

The Supreme Court reversed the decision by holding that Title VII’s anti-retaliation provision extends to third party claims.  The Supreme Court reasoned that firing an employee’s fiancé could dissuade a reasonable employee from making or supporting a charge of discrimination and is therefore prohibited by the anti-retaliation provision of Title VII.  The Supreme Court further stated that firing an employee’s close relative because the employee engaged in activity protected by Title VII will “almost always” constitute unlawful retaliation, whereas “inflicting a milder reprisal on a mere acquaintance will almost never do so.”  However, the Supreme Court refused to identify a fixed class of relationships for which third party reprisals are unlawful, and stated that each case must be decided based on its own particular circumstances.  The Supreme Court also determined that the fiancé in Thompson had standing to bring a cause of action for his termination under Title VII because he fell within the “zone of interests” sought to be protected by Title VII’s anti-retaliation provision.  The Supreme Court held that the “zone of interests” test is used to determine if a party is “aggrieved” under Title VII, and this test enables suit by any plaintiff with any interest “arguably [sought] to be protected by the statutes.”

Practical Significance in EPL Claims Handling

The ruling in Thompson will likely increase the number of third party retaliation claims under Title VII nationwide because plaintiffs’ attorneys will argue for a broad interpretation of the decision to include potentially all relatives, friends, spouses, fiancés, girlfriends or boyfriends who suffer adverse employment actions after the employee engages in protected activity.  The major concern for employers is that they are at risk whenever they take an adverse employment action against an employee who has a close connection or relationship with a different employee who filed a charge of discrimination with the EEOC or otherwise engaged in protected activity.  Employers should consider whether the decision maker has knowledge of any connection or close relationship before the adverse employment action is carried out against the third party.  Employers should also ensure that any adverse employment action is supported by a legitimate, non-retaliatory reason that is well documented.

For further assistance or questions, please contact:

• Barry Postman email: barry.postman@csklegal.com; 561-383-9234
• Brian Rubenstein email: brian.rubenstein@csklegal.com; 813-864-9324

Partners in Cole, Scott & Kissane, P.A.’s Employment Law Group.