Nevada Complex Litigation

Determining Just Compensation in Eminent Domain Actions

One of the biggest questions in any Eminent Domain action is how much is the property being taken actually worth?  Below are some facts often used to answer the question.

To determine just compensation, the trier of fact must necessarily determine the value of the property taken.  The 2007 Nevada legislature amended the definition of “value” in NRS 37.009(6).  Under Nevada law, “value” means the highest price, on the date of valuation, that would be agreed to by a seller, who is willing to sell on the open market and has reasonable time to find a purchaser, and a buyer, who is ready, willing and able to buy, if both the seller and the buyer have full knowledge of all the uses and purposes for which the property is reasonably adaptable and available.

Nevada law requires that the property to be condemned be valued at its “highest and best use”, which is the most reasonable probable and legal use of the property which is physically possible, appropriately supported, financially feasible and that results in the highest value.

In a direct eminent domain proceeding commenced by the government, the date upon which the property must be valued is the date that the civil complaint and summons were served on the owner of the property.  In an inverse condemnation action commenced by the landowner, the date of valuation is the date of the actual taking by the government.

Once the valuation date is known, eminent domain appraisers utilize various methods to value the property and determine just compensation owed for the taking of the property.  The most frequently used method is the sales comparison approach which estimates market value based upon recent sales of property comparable and similar to the condemned property.

Preventing Retaliation Lawsuits

Today more than ever, employers need more than just an anti-retaliation policy to reduce exposure in EEOC actions.  First, management needs to understand the EEOC’s definition of Retaliation and the rules as written.

Directly from the EEOC Compliance Manual, Section 8:  Retaliation

There are three essential elements of a retaliation claim:

   1)  protected activity -- opposition to discrimination or participation
       in the statutory complaint process

   2)  adverse action

   3)  causal connection between the protected activity and the adverse
       action

This section of the EEOC Compliance Manual pretty clearly defines the structure of a retaliation claim.  As such, if you do not yet have a stand alone anti-retaliation policy, it is a good place to start to create one.  Do not bury this policy among others.  It must “stand alone”.

Prevention of retaliation and reduction/elimination of liability require much more than a policy.  Today, employers must be proactice in response to any EEOC claim.  Here are a few tips.

• Make sure that your anti-retaliation policy includes a statement that encourages employees to come forward with complaints of unlawful conduct without fear of retaliation.
• Your policy must state that retaliation is illegal and include procedures for redress should retaliation happen.
• When any employee makes a claim of discrimination, harassment or other unlawful conduct, the managers, supervisors and, if appropriate, the claimant’s co-workers should be counseled regarding your policy (a copy of which should be distributed during the meeting) and their non-retaliation obligations. Document this meeting and policy distribution.
• Lastly, schedule and conduct regular (every 2-4 weeks) meetings with the employee. The meetings may be brief as the only question to be asked and answered is this: Does the employee feel that s/he has experienced any retaliation?

These steps not only serve to limit your liability by reducing problems, but also serve to document how seriously your company takes its responsibility to eliminate retaliation.

Retaliation Claims Continue to Rise

First the statistics:  EEOC statistics show that from 1997 to 2006 total charges (claims) for all types of discrimination dropped from 80,680 to 75,768. While that might be viewed as good news, here is the problem. 

During that same period, charges of retaliation increased from 18,198 (22.6 % of total charges) to 22,555 (29.8 % of total charges).  That is an increase of over 4,000 claims per year and a jump of more than 7%!

2007 statistics have not yet been released, but there is no question that the trend will continue.

Why?  Historically jurors tend to disbelieve employers and favor employees.  Recent cases of corporate misdeeds (Worldcom, Enron, etc.) have served to reaffirm the jurors’ perceptions of who the villains are more likely to be.  Next, jurors seem to find retaliation to be human nature, and as such more likely to occur than acts of discrimination.  It is not uncommon for employees to lose their discrimination cases and win their retaliation cases.

The future will likely be even more bleak for employers thanks to a 2006 US Supreme Court Decision in Burlington Northern & Santa Fe Railway Co. v. White (126 S. Ct. 2405).  Essentially the Court lowered the standard of proof required to prove retaliation.  This makes it easier for employees and jurors while making it much more difficult for employers to defend themselves. 

Dark skies ahead? This decision also makes it easier to prove retaliation than to prove discrimination. 

You may read more about Burlington Northern & Santa Fe Railway Co. v. White (126 S. Ct. 2405) in the Harvard Journal of Law & Gender, the Duke Journal of Constitutional Law & Public Policy and even in WikiPedia.

Due to the complexity of the legal issues involved, employers may feel free to contact Bill Cooper at 702-382-5111 or wecooper@lvcm.com.

When is Workplace Violence an OSHA Concern?

Theoretically, workplace violence should be a high priority for OSHA.  After all OSHA is an acronym for the U.S. Department of Labor Occupational Safety and Health Administration. 

Each week in the United States, an average of 33,000 workers are assaulted on the job and 17 are murdered.  More than half of all workplace homicides occur in retail or service settings such as conveniences stores, taxicab services, and gas stations.

As such, most assistance from OSHA related to workplace violence is focused on retail and high risk service businesses.  Much of the info I found was related to violence in the healthcare industry, specifically hospitals, assisted living facilities etc.

OSHA tends to address workplace violence as follows (from their website):

There are currently no specific standards for workplace violence. However, this page highlights Federal Registers (rules, proposed rules, and notices) and standard interpretations (official letters of interpretation of the standards) related to workplace violence.    

And of course:  ...[I]n cases where a particular hazard is not addressed by any OSHA standard, the general duty clause may be cited. The general duty clause, Section 5(a)(1) of the Occupational Safety and Health Act of 1970, applies to all employers and requires each employer to provide employees with a place of employment which is free of recognized hazards that may cause death or serious physical harm. Section 5(a)(1) citations must of course meet the requirements outlined in OSHA's Field Inspection Reference Manual (FIRM) Chapter III. C., and will only be issued where there is a serious and recognized hazard in the workplace which can be feasibly abated.

Here is the bottom line: any employer who is waiting for direction from OSHA is putting employees at risk.  Furthermore, do you really want OSHA more involved in your business?

Whistleblower Lawsuit Claims Pfizer Mislead Doctors About Lipitor

A former Pfizer official, Dr. Jessee Polansky filed suit in 2004 against Pfizer claiming that Lipitor marketing was misleading.  The lawsuit also claims that the strategy "led thousands of physicians to prescribe Lipitor for millions of patients who did not need medication" and could be harmed by overly aggressive treatment.

An interesting aspect is that the case was sealed immediately upon filing in 2004 to allow federal prosecutors time to decide whether or not to intervene in the case.  In August 2007 the government lifted the seal having taken no steps to intervene.  The case is 04CV0704 and was filed in United States District Court, Eastern District of New York.

According to The Wall Street Journal, Pfizer said, "We believe this case has no merit. Furthermore, after reviewing the allegations in this complaint, the government declined to intervene in this action... . Pfizer does not condone the off-label promotion of our products. We believe that our sales and marketing practices are solely based on our prescription information as approved by the U.S. Food and Drug Administration."

From 2001 to 2003 Dr. Polansky was Director of Outcomes Management Strategies for Pfizer.  His duties included reviewing marketing materials for Lipitor.

Lipitor is the largest selling prescription drug in history with sales estimated to be between Ten and Thirteen Billion Dollars.  Dr. Polansky claims that Pfizer used educational programs which included deliberate misinformation promoting "Off Label" uses for Lipitor including use with kidney disease patients. 

Dr. Polansky claims that when he objected to the misleading physician education programs he was fired.  The lawsuit asks for “damages and civil penalties on behalf of the United States of America….” arising from violations of the Federal False Civil Claims Act and “…damages arising from defendant’s wrongful termination of Relator’s employment…” for violating the New York Whistleblower statute.