140 ORANGE STREET DEVELOPMENT v. CITY OF NEW HAVEN.
This is an appeal from the action of the Board of Assessment Appeals of the City of New Haven taken pursuant to General Statutes § 12-117a. The parties agree that the plaintiff is aggrieved within the meaning of the statute. In its original complaint, the plaintiff challenged the assessment on the grand list of October 1, 1996. It later amended its appeal to include the grand list of October 1, 1997.
In a § 12-117a appeal, the trial court performs a two step function. The burden, in the first instance, is upon the plaintiff to show that he has, in fact, been aggrieved by the action of the board in that his property has been overassessed. . . . In this regard, mere overvaluation is sufficient to justify redress under [§ 12-117a], and the court is not limited to a review of whether an assessment has been unreasonable or discriminatory or has resulted in substantial overvaluation. . . . Whether a property has been overvalued for tax assessment purposes is a question of fact for the trier. . . . The trier arrives at his own conclusions as to the value of land by weighing the opinion of the appraisers, the claims of the parties in light of all the circumstances in evidence bearing on value, and his own general knowledge of the elements going to establish value including his own view of the property.
Only after the court determines that the taxpayer has met his burden of proving that the assessor’s valuation was excessive and that the refusal of the board of tax review to alter the assessment was improper, however, may the court then proceed to the second step in a § 12-117a appeal and exercise its equitable power to grant such relief as to justice and equity appertains. . . . If a taxpayer is found to be aggrieved by the decision of the board of tax review, the court tries the matter de novo and the ultimate question is the ascertainment of the true and actual value of the applicant’s property. If the court finds CT Page 10248 that the property has been in fact overvalued, it has the power to, and should, correct the valuation.
The subject property is located at 140 Orange Street in New Haven, Connecticut, and is a rectangular shaped parcel with 56.9 feet of frontage on Orange Street in the block located between Chapel and Court Streets. At the time of revaluation in 1991, the parcel was improved with a three story brick and basement mixed use building constructed in 1981 over the footprint of two demolished buildings. The building contains approximately 12,918 square feet with retail space on the first floor and office space on the second and third floors. At the time of revaluation the second and third floors were vacant. The office space is considered class B or C space and was in average or below average condition at the time of revaluation. There is no parking associated with the property. The street is very congested and parking is difficult.
The relevant date of revaluation is October 1, 1991. The revaluation for the City of New Haven was conducted as a mass appraisal project by Sabre Systems, Inc. and its valuation analyses were approved by the City Assessor and adopted as the Assessor’s opinion of market value. The subject property was given a fair market value of $979,300 in this manner.
The defendant offered the testimony of the incumbent City Assessor, William J. O’Brien, as to the revaluation. The assessor who was originally responsible for the assessment of the subject property is no longer in the office; however, O’Brien testified he adopted the assessment. The court, however, did not hear from O’Brien’s predecessor or from anyone associated with the Sabre System revaluation in 1991 or from any appraiser on behalf of the defendant. See Stamford Apartments Co. v. Stamford, 203 Conn. 586, 589, 525 A.2d 1327 (1987). O’Brien’s testimony simply is unpersuasive.
Thus, all the credible expert testimony presented to the court supports the plaintiff’s position that the subject property was overvalued for tax assessment purposes and the court so concludes. The plaintiff, therefore, has carried its burden of establishing that the assessor has overassessed its property.
The court must next determine, de novo, the true and actual value of the property for reassessment purposes. When a taxpayer meets its initial burden of establishing overvaluation, the trial court then has “discretionary authority to find value” and there is no “presumptive validity to the town’s assessment figure.” Ireland v. Wethersfield, 242 Conn. 550, 558, 698 A.2d 888 (1997).
The court must look to the expert opinions of Nadeau and Ball to determine value. Nadeau performed a comprehensive appraisal which was premised on both the sales comparison and income approach to value methodologies. But, as indicated above, the latter approach was invalidated by various mathematical and factual errors. The sales comparison methodology used by Nadeau, however, is an appropriate method of valuation. The same method was used by Ball.
The court concludes that Ball’s trial opinion that the fair market value of the subject property was $680,000 represents the true and actual value of the property on October 1, 1991. The court bases its conclusion on a finding that the comparable sales used by Ball, adjusted in light of certain factors that were brought to Ball’s attention following the issuance of his report, accurately reflect the market values for property such as the subject property in 1991. The court further credits Leary’s testimony that the range of comparable sales in Ball’s report accurately reflected the market for property of the type and in the location as the subject.
Accordingly, the appeal is sustained. The court finds that the true and actual value of the plaintiff’s property is $680,000 with an assessed value, for the 1996 and 1997 grand lists at 70% of fair market value, of $476,000. The plaintiff is entitled to reimbursement for any overpayment of taxes based on the grand lists of October 1, 1996 and October 1, 1997. Judgment shall enter in favor of the plaintiff, plus interest and costs.
 For tax purposes as of the grand lists of 1996 and 1997, the property was assessed at 70% of fair market value for an assessed value of $685,510. In 1991, the assessment ratio was 31.5%, as the 70% ratio was being phased in over a period of three years.
 Having chosen to introduce credible expert evidence that supports the taxpayer’s claim, although under no obligation to do so, the city “cannot circumscribe its significance or prevent the trial court from relying on it for substantive purposes.” Sears, Roebuck and Co. v. Board of Tax Review, 241 Conn. 749, 756, 699 A.2d 81 (1997).


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Defendant appellant John Rohrer, by and through his attorney, David L. Kastner, hereby moves the court for an Order staying further enforcement of any and all purported orders of psychiatric hospital confinement, pending the resolution of the appeal herein, and waiving any requirement that said John Rohrer post a supersedeas bond.
WHEREFORE, John prays that this court make a ruling in this regard with due dispatch so that the issue might, if necessary, be revisited with the Court of Appeals without undue delay.
John Rohrer, the defendant/appellant in this case, was charged with and pled Not Guilty by Reason of Insanity [NGRI] on January 25, 2010 to the September 1, 2009 felonious assault on another man who had previously attacked him, said assault having occurred while John was under the influence of psychotropic drugs known to cause violence [9/25/14 Ts. p. 19, 34] and while still bleeding from an attack by a third man. John was allowed to stop taking the notorious SSRI drugs in 2010.
Notwithstanding the requirements of due process and Ohio Rev. Code Sec. 2945.40, the January 25, 2010 trial judge failed to admit any evidence at all during what might have otherwise been a Sec. 2945.40 commitment hearing. As will be argued in greater detail in the appeal brief, no subject matter jurisdiction ever attached because there was not the slightest semblance of compliance with Ohio Rev. Code Sec. 2945.40 or the constitutional due process requirements for commitment hearings set out in Addington v. Texas, 441 U.S. 418 (1979). The codification of how subject matter jurisdiction is lost is set out in Ohio Rev. Code Sec. 2945.40(B), which defines it as occurring ten (10) days following the denial of the statutorily and constitutionally required Sed. 2945.40 hearing. Absence of subject matter jurisdiction may be raised at any time. Its absence was first discovered upon the February, 2014 preparation of the January, 2010 transcript but was never fully considered in the 2014 trial court. It is being raised now in the Fourth District Court of Appeals. It is expected that the resolution of that issue would be dispositive of this appeal in defendant-appellant’s favor, although there are also alternative assignments of error being raised in the appeal.
Notwithstanding the absence of subject matter jurisdiction John was purportedly ordered confined to Twin Valley Hospital per a February 1, 2010 “Entry”. Without having ever been informed of the legal rights that had been taken from him until early 2014, John set about trying to make the best of the 2010 confinement to the criminal wing of the state psychiatric hospital in Columbus (Twin Valley). John, a former National Merit semi-finalist who has a degree from Ohio University involving psychology, even continued to write and self-publish books and musical compositions, and participate in co-facilitating treatment groups while institutionalized. [9/25/14 Ts. p. 70] In 2011 he was dealt another blow when the trial judge again subjected John to another “hearing” without evidence and “ordered” him to be force drugged. He fought the stupor and the trauma the drugs caused him and muddled through as best he could, succeeding in 2012 in being transferred to the current hospital, Appalachian Behavioral Healthcare [ABH], a “civil” hospital. Hopes that he could be restored to some of his human rights were soon dashed, however, as ABH blindly followed the forced drugging “Entry” entered without evidence, without first bothering to find him incompetent to make his own treatment decisions, and without compliance with controlling caselaw.
Following John’s attorneys’ numerous filings in the trial court attacking subject matter jurisdiction and his attempt to obtain extraordinary writs from the Ohio Supreme Court which summarily declined to consider the matter on its merits, the current trial judge claimed in the August 22, 2014 “Order” to have subject matter jurisdiction without considering any of the grounds that he did not. The trial judge had already scheduled evidentiary proceedings for September, 2014, which he then conducted during three days of “hearing”. No admissible or probative evidence was presented during the September proceedings indicating that John was or is “mentally ill” and “subject to hospitalization by court order”. John’s testimony in September, 2014 appears very calm and rational, with the main bone of contention being by the prosecutor who attempts throughout his cross-examination of John to portray his dissenting views as somehow pathological [9/25/14 Ts. p.70], evidently because others might be persuaded by them. The current trial judge terminated the forced drugging per one of the November 3, 2014 “Decision[s] & Order[s]” but claimed in the other November 3, 2014 “Decision & Order” that John was “mentally ill” and “subject to hospitalization”, thus keeping him involuntarily hospitalized to this day, notwithstanding the enactment of Sec. 1.21 of the Ohio Constitution in 2011, which had been brought to his attention repeatedly and since 2013.
As of this writing, John has successfully tapered down from the psychotropic drugs to a maintenance level that he is comfortable with. [See Stmt. Dr. Janson] John’s privately retained psychologist, Dr. Janson, indicates that, as he testified in September, 2014, John continues to present no signs of being dangerous, which means he does not meet the legal definition of mental illness under Ohio Rev. Code Sec. 5122.01. The state psychologist, who had never interviewed John, offered no serious dispute during the September, 2014 proceedings as to whether John was dangerous or had presented any substantial or imminent risk to anyone during the 5 years of institutionalization.
On November 24, 2014 John exercised his legal right to bring suit against ABH, TBMFU/TVBH, OMHAS, the current trial judge, and others, by filing tort claims in the Ohio Court of Claims in Case No. 2014-00925 and in Franklin County Common Pleas Court on November 26, 2014 in Case No. 14 CV 012387. Both suits seek compensation in connection with the injuries and other damages caused by forced drugging and by the other torts committed against him over the years by Ohio’s mental illness system.
(i) a stay would avoid further retaliations from ABH or other complications arising from the conflicts of interest that it and many of its staff now have due to the pendency of the tort claims.
The issue of lack of subject matter jurisdiction to have issued the original confinement order is substantial and its merits are clearly apparent upon the face of the attached January 25, 2010 transcript, just as the absence of jurisdiction to have force drugged is clear on the face of the March 4, 2011 transcript, being considered moot for purposes of the within Motion for Stay. The 2010 transcript demonstrates, among other defects of constitutional dimension, that (1) the 2010 public defender and the prior trial judge gave John the distinct, false impression that some sort of commitment post-NGRI was automatic; (2) no evidence, much less clear or convincing evidence was ever admitted in support of trial court jurisdiction to commit; and (3) John was neither informed of nor waived any rights.
(A) No federal, state, or local law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in a health care system. . . .
(1)’Compel’ includes the levying of penalties or fines.
Ohioans now have a constitutionally protected right to not to be compelled to participate in the public health care system that ABH is part of, or an example of. This relatively new health freedom addition to Ohio’s Bill of Rights, contains no exceptions for NGRI defendants.
C. Notwithstanding the clear failure of subject matter jurisdiction to have attached from the beginning, the present trial judge scheduled September, 2014 proceedings which likewise produced no evidence supporting either Sec. (A) or (B) of Ohio Rev. Code Sec. 5122.01 and nothing to contradict Dr. Janson’s September 15, 2014 testimony that he had never seen evidence of John’s dangerousness.
What the defense currently has of Dr. Janson’s testimony is summarized in the November 26, 2014 proffer and in his statement attached hereto. It is the transcript of his testimony that the court reporter refuses to date to provide, and which the trial judge refuses to date to order. Transcription by the defense’s court reporter of the audio files, even of Dr. Janson’s missing September 15, 2014 testimony, is also not presently being permitted.
Even had there been a medically legitimate diagnosis of “schizo-affective”, this would have been legally insufficient to support a finding of mental illness under Ohio Rev. Code Sec. 5122.01(A), which also requires that the “disorder” in question must be ”substantial” and must “grossly impair” significant life functions. No proof of any this was ever adduced and there was no state witness competent to do so even had this been attempted, which it never was. Even if evidence had supported all the elements of Sec. 5122.01(A) by clear and convincing evidence, this would still leave Sec. 5122.01(B) – the imminently dangerous portion of the statute, completely unproven. Without compliance with both Subsections (A) and (B), agents of the State of Ohio from the beginning lacked the statutory and constitutional authority to lock John up. They continued to lack that authority when Scott and Hamill demonstrated themselves completely incapable of providing admissible or competent testimony during the September, 2014 proceedings.
F. John was denied the right to jury trial or even the right to be informed he had the right to jury trial during what might have been a commitment hearing on January 25, 2010, and was again denied the right when he demanded it on July 15, 2014.
In State v. Hunter, Ohio Sup. Ct. Case Number 20141-02223, the high Court granted a temporary stay in part based on irregularities Ms. Hunter is claiming in her appeal which may have interfered with her right to a unanimous jury verdict. In John’s case, he was never even given notice of his right to jury trial in the commitment portion of the January 25, 2010 proceedings, as opposed to during the underlying criminal charge, which was an entirely separate proceeding.
Had John been informed of his right to jury trial in 2010, he could have required that they and not the court make the determination of whether he then fit the definition of being mentally ill under Sec. 5122.01(A) and (B). Jurors could have been specifically instructed, as they are now with the insanity defense, and as they did at common law in lunacy cases. The right to jury trial was thoroughly briefed in John’s 7/15/14 Jury Demand. The current trial judge summarily denied John’s right to jury trial for the September, 2014 proceedings.
“The right to jury trial has been shown to be critical, numerous studies indicating that the exercise of that right may well mean the difference between release and commitment.” Lessard v. Schmidt, 349 F.Supp. at 1100 (Oct. 18, 1972).
Since the grounds demonstrating the absence of jurisdiction are to all now be ignored, as before, and if public protection is really what is claimed to be desired, it was the community itself that should have been allowed to hear and determine any facts the State might have had to convince them John should have been locked up for his “own good” and their protection.
Records show that ABH is so non-medically equipped that it even must send yeast infection cases to O’Bleness Hospital. Even talk therapy options at ABH are astonishingly meager. There is no individual or group counseling available at ABH addressing the after-effects of the violence inflicted upon John in the Ross County jail in 2009, or later in the two state psychiatric facilities. ABH is a holding facility that dispenses drugs and serves meal – not a hospital in the usual sense of the word. John’s psychologist on the outside, Dr. Janson, is a trauma expert who has attempted to establish a collegial relationship with ABH staff for John’s benefit, but ABH refuses to cooperate with him, other than to occasionally tolerate his presence when he visits John.
John also has an integrative psychiatrist in Columbus on standby, who will be available to assist Dr. Pinkham. [Aff. Dr. Linda Cole, 9/25/14 Ts. p. 39] In any event, it is John’s right to have meaningful contact at his family’s expense with outside medical people he trusts – not be limited to the very same psychiatrists in the very same facility he has been forced to file suit against for malpractice. Treatment for conditions caused by his confinement and drugging is essentially impossible to achieve while John remains confined at ABH.
Tardive dyskinesia is a neurological disorder commonly caused by Risperdal. ABH has zero expertise in the holistic treatments that show some promise of being able to reverse the often permanently disabling disorder. [http://www.uofmhealth.org/health-library/hn-1278003] It is essential that those treatments be started as soon as possible. It is bad enough that John was illegally and forcibly drugged for 3 years and 7 months – the last year of which was after the trial judge and ABH had ample reason to know that their actions were unlawful. But it is truly intolerable that ABH even now declines to allow Dr. Pinkham to fully treat John and manage his Risperdal tapering.
Apparently, due to the ongoing tort claim, which names the current ABH treating psychiatrist, Dr. Derrico, as a defendant, no one at ABH will speak with Dr. Pinkham so that her full plan can be implemented. To stand the best chance of being able to heal his neurological system, John is entitled to the services of a toxicology expert such as Dr. Pinkham – services that ABH cannot and will not provide.
“the substantial evidence that any lengthy hospitalization, particularly where it is involuntary, may greatly increase the symptoms of mental illness and make adjustment to society more difficult. See, e. g., Hearings before the Senate Subcommittee on Constitutional Rights, 91st Congress, 1st and 2d Sess., 214-15, 319, 409 (1969 and 1970)”.
Somehow, perhaps because of the hope his friends, family and supporters bring to him, John has managed to continue against all odds to have an upbeat attitude. He is grateful to have the chance at a productive life that his recent release from forced drugging is giving him and possibly the chance to reverse his emerging tardive dyskinesia/parkinsonism. He deserves and has a right to pay for medical services that he can trust in the community just as other citizens do.
John needs access to his attorneys for the within appeal, for subsequent appeals if need be, and for the tort claim cases. ABH’s insistence on enforcing its Internet ban against him not only restricts his access to Drs. Pinkham, Cole, Janson, and Johnson, it also takes away most of his reasonable rights of access to his own attorneys. The fact that this practice has been occurring since July, 2014 has never been denied. Nor has the trial judge attempted to remedy it.
The undersigned attorney has filed multiple pleadings since July, 2014 seeking relief from ABH’s blocking of John’s reasonable online communication online efforts with him in violation of his right to counsel and right to court access under the First, Fifth, Sixth and Fourteenth amendments to the federal constitution. However, the trial judge continues to ignore those pleas.
During the pendency of this appeal and the tort cases in Franklin Count, the trial judge now has a direct interest in continuing to allow ABH to interfere with John’s right to meaningful access to his attorney, physician, psychologist, and psychiatrist in the outside world, as this trial judge is a named defendant in the said tort cases and refuses to either recuse from the within case or to allow John’s attorney reasonable access either to his client or to significant portions even of the trial record in this case. See defendant’s October 31, 2014 Motion and November 26, 2014 Supplemental Memorandum.
If the problem is that the trial judge is reluctant to interfere with ABH’s internal institutional practices even when they are unlawful and destroy constitutional rights, one simple solution would be a stay.
John is not a flight or escape risk. He has no criminal convictions, no record of flights to avoid prosecution, no failures to make court appearances, and no incidents of escape or attempts to escape from his unlawful psychiatric confinement. He is facing no criminal prosecutions. He has no history of such conduct in all the five years he has been locked up as a person accused of mental illness without evidence. The trial court record shows that John was transferred to ABH in 2012 for the very reason that Twin Valley did not even then believe he required heavy security.
During those years, despite the drugging, the daily humiliations, and the assaults, John availed himself of the very spotty and limited resources in the two hospitals to design at least a dozen websites where he has been marketing the books he has written and the music he has composed and performed. [htttp://en.gravatar.com/jonnylucid] His writing continues, now limited to pen and paper.
John likewise wants to avoid as much as possible those continuing disabilities and clear up the mis-information about the nature of his one act of prescription drug-associated violence which must not lawfully be used to brand him as “dangerous” forever. Hargrave v. Vermont 340 F3d 27 (2ndCirc. 2003)(only those who pose a direct threat of harm to others can be discriminated against under the Americans with Disabilities Act). It should be noted that even those who are not mentally ill but who are merely “regarded as having such an impairment” Title 42 Chapter 126 USC Sec. 12102(1)(C) are entitled to the ADA protections of non-discriminatory treatment.
John has strong family, social, and community ties as evidenced by the attached affidavits of support from prominent members of the community, including the disabilities community ready to accept him with or without stigma. He has lived in Ohio for most of his life, having graduated with honors from Chillicothe High School and having then earned an Associate’s degree from Ohio University. Although he has a mother and supporters in Uruguay, where attached affidavits show he would be welcomed into the American community there, he has a great many more supporters and opportunities in Ohio. He is welcome to do peer work at Lifeworxx in Ashland, Ohio [aff. of its director, Amy Flanagan], where Mr. and Mrs. Patrick Risser would help him find housing. [Risser affidavits], Karen and Gary Stanley would help him in Chillicothe [Stanley affidavits], as would peer specialist Steve Copper [Aff. S. Cretsinger, & 9/25/14 Ts. pp. 53-54] and William Loucks [see affidavit]. Additional attached affidavits reveal John is supported by others in Cincinnati, in Kent, in Chillicothe, in Columbus, in Kentucky, and in North Carolina. As an indigent person for now, John is dependent on his supporters, family, and his physicians in Columbus, Ohio from whom he has been receiving treatment but only when he was able to do so by telephone or persuade the trial judge to order ABH to provide transportation to their offices.
John is significantly motivated to establish that from the beginning he has never been lawfully deemed “mentally ill and subject to hospitalization by court order” due to the absence of evidence. Fleeing would ruin his chances of proving this once and for all. The attached affidavits of support show his considerable community connections and willingness to remain in the State of Ohio during all appeals, and during the tort cases pending in Franklin County. John intends to diligently pursue the vindication of legal rights denied to him for so long and will need to be available to freely consult with his attorneys, review discovery documents and pleadings, and participate in depositions.
It is very much in John’s interests to re-establish the unrefuted fact that it was the psychiatric drugging and head trauma, not “mental illness” that led to the 2009 assault on the man who had previously attacked him. It would also very much be in the interests of the public to understand that it is the SSRI and other drugs, not the mental illness diagnosis itself that is known to be associated with violence, particularly when psychiatric patients are not treated humanely.
John is working to have a real future – not a dead-end as a mental patient. Towards that end, his presence in Ohio will be needed in order for him to consult effectively with his attorney, to be present for court appearances and for depositions and other discovery activities which are likely to commence quite soon in Case No. 2014-00925 in the Ohio Court of Claims and in Case No. 14CV012387 in Franklin County Common Pleas court. Maintenance of meaningful contact with his attorneys may also continue to be constitutionally required should he again seek either an appeal of a denial of stay or extraordinary relief in the Ohio Supreme Court.
Those principles are codified in Ohio Rev. Code Sec. 5122.01(A) and (B).
It is clear that so long as a person accused of “mental illness” has family and/or friends who will help him adjust to the outside world, as John clearly does, when there is no real treatment being provided, there is no purpose to be served by incarcerating him at all, much less by incarcerating utilizing innuendo instead of evidence, resulting in a far longer lock-up period than he would be likely to have had, had he been punished by the criminal law.
There have been no serious allegations that John poses an imminent, substantial or direct physical danger to self or others, nor has there been for the past five years of his unlawful psychiatric incarceration. During May and June, 2014 John physically resisted the unlawful forced Risperdal consta injections, which he knew were causing him neurological damage. ABH take-down teams responded aggressively, injuring him many times, causing him to be severely traumatized and to scream in terror, physical pain, and outrage. Realizing he himself did not want to be goaded into defensive violence and faced with the prospect that ABH staff could easily injure him seriously and permanently in their zeal to inject the Risperdal, he stopped physically resisting at the end of June, 2014 [9/25/14 Ts. p. 57] and only verbally refused the violation of the Risperdal needle. Thereafter, or at least until the absurdity of their charade became apparent by the final day of hearing in September, 2014 ABH was insisting on putting on an elaborate display of chaining John for each court appearance or court-ordered transport to the doctor. No one was injured when John resisted the injection, except for John himself. The only other allegations that there have been against John by ABH are that he has at times insulted some of the ABH staff people responsible for his unlawful forced drugging and has yelled in pain or outrage without even defensive violence on his part when assaulted by others – behaviors which are not indicative of mental illness or dangerousness.
The felonious assault from September 1, 2009, which was the subject of part of the January 25, 2010 proceedings, occurred in a violent group home under the supervision of the Department of Mental Health. There a government psychiatrist prescribed and John took as prescribed, the violence-associated SSRI drug, Celexa, among others. By July, 2009 appellant attempted to question the psychiatrist about his concerns about those effects, as is documented in those records. See attached redacted SPVMH treatment note of July, 2009. But John’s concerns about the drugs were ignored then as they continued to be for another 5+ years. The record is clear that the 2009 felonious assault is appellant’s only violent offense and occurred only as a result of a combination of the SSRI and other aggression producing drugs, a still bleeding head wound from the day before [9/25/14 Ts. p. 19, 34], and a history of prior assaults by the man he struck on September 1, 2009, as stated in John’s December 4, 2013 Motion and never refuted.
Celexa and other SSRI drugs are notorious for causing horrific violence, including murders by persons otherwise never known to be violent. This is in addition to suicidal ideation and acts. E.g. Tobin v. SmithKline Beecham Pharmaceuticals, 164 FSupp.2d 1278 (D. Wyo. 2001)(6 million dollar verdict to survivors of a man who killed wife, daughter, baby granddaughter, and then himself while under the influence of Paxil, an SSRI anti-depressant, jury finding that Paxil contributed 80% to the proximate cause of the deaths); Brancaccio v. State, 698 So2d 597 (4th Dist Ct/App. Fla. 1997)(error to not instruct jury on involuntary intoxication in murder case where defendant under the influence of Zoloft, an SSRI drug). The role – and potential liability – of SSRI drug prescribers, such as the one who prescribed Celexa for John in 2009, when they set up a patient for acts of deadly violence is now also finally beginning to be recognized, as it was by the Supreme Court of Utah in Jeffs v. West, (No. 20110207, February 28, 2012)(prescribing of Paxil, an SSRI and other drugs which then causes the patient to shoot wife may result in liability on the part of the prescriber to the motherless children).
Yet John, just as much a victim of some of the very same SSRI and other drugs, goes into his sixth year of confinement for an assault that caused a cut that was easily closed with stitches.
That is to say – the dangers of psychotropic drugs are likely to be 100 times worse than the FDA admits they are.
It seems pretty clear, especially with Dr. Scott’s admission about the mania producing effects of the Celexa upon John, that the events of September 1, 2009 were far likelier to have been caused by the use of prescribed psychotropic drugs, combined with John’s head injury and the pervasive atmosphere of violence in the group home, than to “mental illness” within the meaning of Sec. 5122.01(A) or (B) of the Ohio Rev. Code. There is absolutely no reason to believe that violence would now be a concern, nearly 5 ½ years later, with John off of the aggression-causing SSRI drugs and greatly reduced from the agitation producing drug Risperdal.
“There is no known psychological or psychiatric test or evaluation that accurately and consistently predicts violence. Dolan, M., Doyle, M. “Violence Risk Prediction: Clinical and actuarial measures and the role of the Psychopathy Checklist”. Br. J. Psychiatry (2000) 177: 303-311, abstract at http://bjp.rcpsych.org/content/177/4/303.full [“Violence risk prediction is an inexact science and as such will continue to provoke debate.”] There are, however, factors that tend to increase the risk of violence. Melton, G., Petrila, J., Poythress, N., & Slobogin, C. (2007). Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers. 3rd Edition. 306-321. Having a diagnosis of mental illness is not a risk factor. . .
In his attached statement, Dr. Janson further notes that now, contrary to all the dire predictions to the contrary, with John having titrated himself down to a low level of oral Risperdal, and only on half the Depakote forced upon him in 2013, that he remains non-dangerous.
she was unable to produce any “specific act” that was current information.
All Dr. Scott ever claimed were insinuations, of which she had no first-hand knowledge, along with second and third-hand versions of snippets of conversation fragments someone at some time attributed to John or someone who claimed to have talked to John. Dr. Hamill claimed to know even less hearsay than Scott did, as he too “have never evaluated him” [9/12/14 p. 101]. The State brought in no one who did have first-hand knowledge. The State was unable to establish that any “dangerousness” had existed from which anyone would have had first-hand knowledge.
ABH alleged but never proved “dangerousness” within the meaning of Ohio Rev. Code Sec. 5122.01(B) when ABH’s Dr. McGee, who never testified, sent a July, 2014 letter to the judge complaining that John had physically resisted forced drugging in May and June, 2014 and yelled in pain and outrage at a government retained dentist who had hurt him and yelled at him first. Obviously it does not make a person “dangerous” to yell out in pain when he is being physically attacked. John did not become “dangerous” by labeling Dr. Sierra, the forced drugging prescriber, as a “murderer”. Indeed her conduct has been and will again be shown to have constituted deliberately assaultive behavior using a deadly drug that caused John physical harm, including neurological damage which may prove irreversible and disabling.
John did not become “dangerous” by exercising his right to dissent from the ABH version of reality about the supposed benefits of psychotropic drugging at the extreme levels ABH had been insisting upon. Nor is he the first person to challenge the pro-drug- at-all costs mindset. The Ohio Supreme Court in Steele v. Hamilton Cty Comm’y Mental Health Bd., 90 Ohio St3d 176 (2000) and the 11th District Court of Appeals in State v. Welch 125 OhioApp3d 49 (11th Dist. 1997), also observed the great harm that psychotropic drugs can do. To date, those judges have not been locked up for expressing “dangerous” ideas.
It is not in dispute that it was the psychiatrists, not John, who insisted on drugging him in 2009 with the violence associated drugs, Celexa, Invega, Neurontin, and Buspar. It was a state psychiatrist who ignored the suicidal distress it caused him [7/09 redacted treatment note], who continued to keep him placed him in a violent home, and who then refused to protect him from any of the violence there. Once free of the Celexa, an SSRI drug – there was no further violence, a fact the state does not seriously dispute.
the bed shortage is a worsening problem likely to create more State liability. It is bad public policy to keep an obviously low-risk individual such as John locked up now going into his sixth year when he is no longer using the hospital’s drugs to any significant degree and has resources of his own available on the outside. To waste scarce hospital resource that others want and are legally entitled to does not make sense.
On December 26, 2014, the Ohio Supreme Court granted a stay to a similarly low-risk individual whose incarceration would impose a burden on one of the State of Ohio’s locked facilities. The six months jail sentence of convicted judge Tracy Hunter pending her appeal following a jury trial in Hamilton County, Ohio was partly based on the avoidance during appeal of what is predicted to be an unnecessary, expensive and burdensome jail sentence. State v. Hunter, Ohio Sup. Ct. Case No.2014-2223 [http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2014/2014-Ohio-5699.pdf] Four of the justices agreed that a stay of Ms. Hunter’s six month jail sentence should be ordered after her stay motions were denied by the trial court and First District Court of Appeals. Two additional justices opined that Ms. Hunter should be free on habeas corpus, leaving only one justice who would have denied her liberty pending appeal.
Hunter was convicted of a crime in which, as a judge, she was found to have wrongfully disclosed confidential health records. Ironically, the record in this case is replete with examples of the wrongful, unconsented-to disclosure of John’s psychiatric “treatment” records. John has merely been seeking the avoidance of similarly unlawful disclosures but it is he who is locked up for it.
The length of additional time that may be consumed in the within appeal and subsequent appeals if necessary in order to clear his name and establish the wrongfulness of the original purported “Entry” ordering John confined, is likely to be in the neighborhood of 12-18 months. In addition to the within proceedings and further appeals that may be needed, the Court of Claims and Franklin County Common Pleas Court actions are likely to continue several years, even without appeals of claimed immunities. For example, if McCualsky v. State of Ohio, Court of Claims Case No. 2011-10240 [previously 2010-09094], another tort action also alleging ABH caused harm to a patient in connection with excessive drugging, is any indication, that matter was initially filed in 2010 but is only just now scheduled for trial in the Court of Claims for March, 2015.
It hardly seems just for John to continue to be confined during all of the currently pending proceedings, particularly under the unprecedented circumstances in which his legal adversaries will be controlling every aspect of his life while having a vested interest and stake in preventing John from having reasonable access to his attorney, as they are doing now. As a person branded as being “mentally ill and subject to hospitalization by court order” without evidence to back up such a life destroying accusation, John is subject to being required to submit to the State’s “treatment” of him until January, 2018 potentially, even though he is following advice from outside ABH, and is now taking only a tiny amount of their drugs and doing extremely well without them. Because ABH is a named defendant in the tort claims in Franklin County, the expected reversal of John’s confinement is likely to result in not only the unnecessary expenditure of public funds for the perpetuation of his current confinement, but also some additional amount as compensatory damages in the future in connection with the pending and continuing tort claims. Being released pending appeal is a sensible way to mitigate the prospect of double damages to the taxpayer by allowing John’s family and friends to help him obtain his own medical and/or psychiatric care if he so chooses pending appeals.
Since as of the November 3, 2014 termination of forced drugging, ABH has no longer been able to bill for psychotropic drugging and since Dr. Janson’s affidavit indicates that John’s adjustment to a non-drugged state is going well, John may attempt further reductions in the tardive dyskinesia-producing drug Risperdal throughout the appeal. This would continue to result in further inroads into ABH’s ability to bill Medicare for the drugs he no longer takes by injection and the related claims that it used to be able to make on John’s behalf. ABH will feel this loss of the usual collections as well. And those who need a bed and want the drugs, will not receive services.
Given the absence of any non-drug, trauma-informed therapy that would address the violence John has been a victim of before and during institutionalization, there is no further justification for continuing to confine him, as no “treatment” is even arguably still going on.
Rather than exacerbating the damages during the next 12-18 months that appeals in this case may take, and while the appellate court is determining whether the trial judge has jurisdiction, and if so, whether he violated appellant’s rights to not be incarcerated without clear and convincing evidence under Ohio Rev. Code Sec. 5122.01(A) and (B), it would be prudent and conserving of limited Ohio Mental Health resources to await that ruling without continuing to enforce an ostensibly unlawful confinement amounting to false imprisonment.
If the “Entries” in this case that appear to be nullities turn out to not be, the State can initiate (for the first time) a civil commitment proceeding against John any time it chooses, provided it can meet the threshold requirements under the probate statutes. There is no need to continue to saddle the taxpayer during this appeal with additional expenses they may otherwise never have to incur.
The non-party, ABH, whose preferences have been so important to the trial judge that he suspended state and local rules and statutes to schedule hearings on some five separate occasions to accommodate them, would not be damaged by John’s release pending appeal. Since ABH has been expressing dissatisfaction with the drug-free message that John exemplifies for other patients, it seems likely that ABH will welcome and be fiscally benefitted by John’s discharge pending appeal. This should be a perfect solution for ABH, which complained during the September, 2014 proceedings that it had no use for John at their facility exercising his First Amendment rights as to his belief in the rights of citizens to choice in health care.
John’s release pending this appeal is the only and best way for him to be able to mitigate the damages that have been caused by the ongoing false imprisonment being imposed upon him by the trial judge and ABH for which he is forced to seek compensation in the Ohio Court of Claims and the Franklin County Common Pleas Court.
The trial judge has already observed that there is and was a “strained relationship between ABH and the defendant” in one of the November 3, 2014 “Decision[s] & Order[s]” but chose to force John to remain at ABH anyway, possibly due to the previously referenced bed shortage. By exercising his rights to sue for the damages inflicted upon him over these past 5+ years by various state actors, John, his family members and supporters have reason for concern that the already “strained relationship” he has with his captors at ABH will worsen, thereby adding to the trauma, including physical batteries, previously testified to by Dr. Pinkham and Dr. Janson which ABH’s “treatment” has caused or failed to protect him against.
Resentments over being sued should not be allowed to fester. Granting a stay would avoid further retaliations, accusations of retaliations, and the general atmosphere of mistrust on both sides, in the unseemly situation in which John as a “patient” is being forced to depend on a psychiatrist and an institution who are also defendants in the tort cases he has brought against them and for which they will be forced to find defenses. At the very least, it is unreasonable to expect real “treatment” to occur when the “treatment” provider at best can be said to be struggling with divided loyalties.
Although some of the higher ranking ABH staff members have been displaying ostensible cooperation towards John during the past few weeks while he tapers down from the previously forced drugging, some retaliation does continue, adding to the stress John experiences from the litigation and concerns about the degree of physical disability the drugs have left him with.
It is not surprising for an institution to act rigidly to protect its own interests. It is only to be expected that ABH, like any hospital in the OMHAS system, would continue to further the OMHAS agenda of increasing the dosages of drugs patients are taking, not decreasing them, as has been explained and documented in defendant-appellant’s tort claims. See complaints at http://fcdcfcjs.co.franklin.oh.us/CaseInformationOnline/caseSearch?UD1PzEskcHKWyJBthS2I and http://cases.ohiocourtofclaims.gov/cgi-bin/wspd_cgi.sh/ws_civilcasesearch_2007.r?mode=5&CaseNo=201400925.
ABH’s history of refusing to permit John to meaningfully access the services of his own physician and psychologist presents a constant threat to his best interests during the critical time of neuroleptic drug withdrawal, and is in fact counter-therapeutic and in violation of his rights. A recent prescription written by an ABH psychiatrist who refused and continues to refuse to discuss the details of Risperdal tapering with Dr. Pinkham, resulted in the prescribing of a dosage of oral Risperdal on November 13, 2014 that could have easily constituted a life-threatening overdose had John not known enough to decline it. Both oral and injectable Risperdal continue to be prescribed for John at ABH at the same time and for no apparent reason. ABH’s Dr. McGee has already informed John that he intends to be on the look-out for any pretext to again forcibly drug or confine him. McGee has a history of threatening John, as recently as July, 2014 to the effect that even if John were to prevail in litigation that McGee would continue to pursue John in an effort to again forcibly confine him and force drug him.
Although relationships with Drs. McGee and others seem to be improving, the fact remains that they now have financial and professional incentives to portray John as somehow failing in his tapering from Risperdal. To do otherwise puts into serious question their entire theory of what it is they claim to be doing for psychiatric patients at taxpayer expense.
Requiring John to post a bond under these circumstances and given the indigent status that his psychiatric incarceration forces upon him, would be to effectively deprive him of his opportunity to vindicate his substantial statutory and constitutional rights in the pending appeal based only on the suspect classification of wealth.
There is no material harm that could befall any party herein for which there is any reason for any security to be posted. Indeed, suspending John’s ostensibly unlawful confinement during appeal would have the effect of mitigating damages now being claimed against ABH, the State of Ohio, and other named defendants in the Franklin County actions.
If the defense is mistaken about the absence of subject matter jurisdiction and is also mistaken about the State’s failure to prove that John meets the Sec. 5122.01 definition of being a “mentally ill person subject to hospitalization by court order” in September, 2014, he will surely be subjected to another proceeding to commit him if released pending appeal. In the meantime, during the pendency of this appeal, for the reasons stated above, this court should grant his request to stay John’s confinement for involuntary “treatment” when he has his own treatment team, family, friends, and supporters in the community. He should be free to recover his physical health and meaningfully participate in the preservation of his rights.

matches: v. v. v. v. v. v. v. v. v. v. v.


In an opinion that will likely give peace of mind to businesses shipping products from the U.S. abroad, Justice Sonia Sotomayor, writing for a unanimous Supreme Court, reversed the Federal Circuit in Life Technologies v. Promega, holding that a single component does not constitute a “substantial portion” of the components that can give rise to liability under 35 U.S.C. § 271(f). Patent applicants and licensors, on the other hand, will face added challenges to maintain the broadest protection available for inventions commercialized in other countries based on a U.S. component.
Background: Can a Single Component Constitute "A Substantial Portion" of a Patented Invention?
The case began as a patent infringement action between Promega Corp. and Life Technologies Corp. Promega sublicensed a patent, which claims a toolkit for genetic testing, to Life Technologies. Life Technologies manufactured one of the kit’s five components, the enzyme Taq polymerase, in the United States. It then shipped the enzyme to the United Kingdom, where the remaining four components were manufactured. The Taq polymerase was then combined with the remaining four components and sold as a genetic testing kit.
35 U.S.C. § 271(f)(1) creates infringement liability for the supply from the United States of “all or a substantial portion of the components of a patented invention” for combination abroad (and other conditions not relevant to the case are met). Promega sued claiming the sales were outside the licensed fields of use and alleged that Life Technologies was liable under § 271(f)(1) on account of its supply of the Taq polymerase.
A jury returned a verdict for Promega, but the District Court granted a motion for judgment as a matter of law brought by Life Technologies, holding that § 271(f)(1)’s “all or a substantial portion” requirement did not include the supply of a single component of a multicomponent invention. The Federal Circuit reversed and reinstated the jury’s verdict. The Federal Circuit determined, based in part on expert trial testimony that the Taq polymerase is a “‘main’” and “‘major’” component of the kits, that the single component was a substantial component under § 271(f )(1).
The issue before the Supreme Court was to determine whether a party that supplies a single component of a multicomponent invention for manufacture abroad can be held liable for infringement under § 271(f)(1).
First, the Court determined that the “substantial portion” requirement of the statute “has a quantitative, not a qualitative meaning.” The Court concluded that “substantial” is most reasonably read, in context, to refer to the number of components rather than their relative importance. Further, the Court noted that tasking a jury with considering the qualitative importance of a component may complicate its review of the case and not guide how market participants wanting to avoid liability could do so.
Next, the Court determined that a single component can never constitute a “substantial portion” so as to trigger liability under § 271(f)(1). The Court found that the text of the statute points to requiring multiple components because “[t]he section is targeted toward the supply of all or a substantial portion ‘of the components,’ where ‘such components’ are uncombined, in a manner that actively induces the combination of ‘such components’ outside the United States.” The Court also looked to the structure of the statute to bolster its interpretation, noting that that 271(f)(1)’s “companion provision,” § 271(f)(2), refers to “any component” in the singular. The Court reasoned that requiring multiple components to satisfy the “substantial portion” requirement allows each subsection of the statute a unique application, which supported its reading of the text. The Court also looked to the legislative history and found that it supported the Court’s interpretation based on the text and structure of the statute itself.
Accordingly, the Court held that under 35 U.S.C. 271(f) a “substantial portion” has a quantitative, not a qualitative, meaning and that it does not cover the supply of a single component of a multicomponent invention.
While Promega will provide some guidance to businesses supplying products from the U.S. on how to avoid infringement liability from a single component aimed to be combined with others abroad, it leaves the answer to some questions for further development in the law. For example, the Court’s opinion does not explain what (quantitatively) constitutes a “substantial portion.” As Justice Samuel Alito noted in his concurrence with Justice Clarence Thomas, the opinion only “establishes that more than one component is necessary, but does not address how much more.” Further, what exactly does (or does not) constitute a single component likely also will need to be established.
For patent applicants and patentees, the opinion raises other issues. Those preparing patent claims for inventions potentially commercialized as the Taq was here will need to consider how to prepare some claims to provide the greatest likelihood of § 271(f) protection. Similarly, those structuring license agreements like the one underlying the dispute at issue in Promega may want to add any additional provisions to provide an adequate alternative structure or remedy for risks created by single-component supply believed to be in violation of the terms of a license.


This Consent Decree resolves a civil action brought by Plaintiff United States and Plaintiff-Intervenor Lance Lazoff against Defendant City of Colorado Springs ("City") to enforce the provisions of Title I of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12111, et seq., and its implementing regulations, 29 C.F.R. Part 1630. The United States and Mr. Lazoff allege that the City violated the ADA's non-retaliation prohibition, 42 U.S.C. § 12203(a), when the City failed to promote Lance Lazoff to Sergeant in retaliation for an ADA claim that his wife — a former police officer with the Colorado Springs Police Department ("CSPD") — brought against the City and/or for his participation and assistance with that action.
This matter was initiated by the charge filed by Mr. Lazoff (Charge Number 320-2005006-99) with the Equal Employment Opportunity Commission ("EEOC"). The EEOC investigated the charge, and found reasonable cause to believe Mr. Lazoff's retaliation claim. After the EEOC's attempts at conciliation failed, the EEOC referred the charge to the United States Department of Justice. The City denies that any of its actions violated the ADA.
As a result of ongoing discussions, the United States, Mr. Lazoff, and the City (collectively, "the parties") have reached agreement that it is in the parties' best interests, and the United States believes that it is in the public interest, to resolve this lawsuit on mutually agreeable terms without further litigation. Accordingly, the parties agree to the entry of this Consent Decree without trial or further adjudication of any issues of fact or law raised in the United States' or Mr. Lazoff's Complaint. This Consent Decree shall not serve as evidence for purposes of litigation against the City, except for actions to enforce or modify the Consent Decree.
1.	This Court has jurisdiction of this action pursuant to 42 U.S.C. § 2000e-5(f) and 28 U.S.C. § 1345. The parties agree that venue is appropriate pursuant to 28 U.S.C. § 1391.
2.	The United States has authority to initiate legal proceedings to enforce Title I of the ADA. 42 U.S.C. § 12117.
3.	The City is an "employer" within the meaning of § 101(5) of Title I of the ADA, 42 U.S.C. § 12111(5), and a covered entity within the meaning of § 101(2) of the ADA, 42 U.S.C. § 12111(2).
4.	The remedies and procedures of § 107(a) of Title I of the ADA, 42 U.S.C. § 12117(a), are available to aggrieved individuals under § 503(a), 42 U.S.C. §12203(c). Section 107(a) of Title I of the ADA incorporates by reference § 706 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5.
5.	The City, by and through its officials, agents, employees, and all persons in active concert or participation with the City in the performance of employment or personnel functions, shall not engage in any practice that discriminates against any employee or applicant for employment on the basis of disability in violation of Title I of the ADA, including retaliation under Title V of the ADA.
6.	The City shall not retaliate against any person on the basis of having cooperated with the United States' investigation of the City's employment practices, nor on the basis of any proceedings connected with that investigation or the administration of this Consent Decree.
7.	Prior to January 1, 2009, the City shall provide appropriate training on the ADA and its retaliation prohibition to all current CSPD supervisory personnel, above the rank of sergeant, including lieutenants, commanders, deputy chiefs, and the chief.
8.	The City will promote Mr. Lazoff to Sergeant upon the first available Sergeant opening, but in any event no later than November 30, 2008. Nothing in this Decree, however, prevents the City from promoting Mr. Lazoff, regardless of a Sergeant opening, at any time prior to November 30, 2008.
9.	Pending his promotion in accordance with Paragraph 8 of this Consent Decree, the City will pay Mr. Lazoff as a Sergeant for time worked as of June 30, 2008.
10.	The City will provide Mr. Lazoff with retroactive seniority effective April 16, 2004, and all other non-monetary benefits Mr. Lazoff would have received had he been promoted to Sergeant on April 16, 2004.
11.	When bidding for his 2009 schedule, Mr. Lazoff will be accorded seniority based on an April 16, 2004, promotion date. The City will allow Mr. Lazoff to bid for his 2009 schedule in the regular October 2008 bidding cycle, whether or not he has, by that date, been officially promoted to Sergeant in accordance with Paragraph 8 of this Consent Decree.
12.	The City will pay to, or on behalf of, Mr. Lazoff back pay, including interest, in the total amount of $35,000 (thirty-five thousand dollars), less applicable deductions, contingent on Mr. Lazoff's release of all claims arising from, or related to this action. The City's payment of back pay to, or on behalf of, Mr. Lazoff will be delivered by overnight mail to Mr. Lazoff's counsel within seven (7) days of the City's receipt of Mr. Lazoff's signed release of all claims, but in no event prior to July 29, 2008. The City will provide counsel for the United States a copy of the check and transmittal letter sent to Mr. Lazoff via his counsel.
13.	The City will make retroactive pension contributions to Mr. Lazoff's pension account, based on the City's payment of back pay as set out in Paragraph 12.
14.	The United States may review compliance with this Consent Decree at any time and may enforce this Consent Decree if the United States believes that the Consent Decree or any requirement thereof has been violated. If the United States believes that this Consent Decree or any portion of it has been violated, the United States will raise its concerns with the City, and the parties will attempt to resolve the concerns in good faith. The United States will give the City thirty (30) days to cure the violation prior to instituting any court action, starting from the date that the United States notifies the City of any violation of this Consent Decree.
15.	Failure by the United States to enforce any provision of this Consent Decree shall not be construed as a waiver of the United States' right to enforce other provisions of this Consent Decree.
16.	This Consent Decree does not purport to remedy any other potential violations of the ADA or any other law that is not specifically addressed herein, nor does it affect the City's continuing responsibility to comply with all aspects of the ADA.
17.	This Consent Decree shall remain in effect for three years from the effective date. The Court shall retain jurisdiction to enforce this Consent Decree. This Consent Decree will expire three years from the effective date.
18.	The effective date of this Consent Decree is the date on which the Court enters this Consent Decree.
19.	This Consent Decree, and the releases related thereto, constitute the entire agreement among the parties relating to United States and Lazoff v. City of Colorado Springs, Civ. No. 07-cv-02560-LTB-CBS; Department of Justice Number 205-13-20; and EEOC charge number 320-2005006-99. No other statement, promise, or agreement, either written or oral, made by any party or agents of any party, that is not contained in this written Consent Decree or its attachments shall be enforceable.
20.	This Consent Decree shall be binding on the City, its agents, and employees.
21.	The individuals signing this Consent Decree represent that they are authorized to bind the parties to this Consent Decree.
DATED this 22nd day of July 2008.


text:
Certain allegations in a third-party complaint against a manufacturing corporation stated a sufficient claim under the property damage provisions of the corporation's policy of products liability insurance to invoke the insurer's duty to defend the third-party action, and did not come within the policy's "business risk" exclusion.
Stephen H. Oleskey (Lisa G. Arrowood with him) for the plaintiff.
protection against certain forms of products liability. In the present suit Sterilite sought a declaration that Continental was obliged to undertake its defense in a third-party action in which it was named as a defendant.
More particularly: Henry Heide, Inc. (Heide), purchased from WRH Products Co., Inc. (WRH), for a price of about $100,000, some 23,130 plastic "starch trays," i.e., trays carrying starch, to be used in the process of candy manufacture. On July 21, 1975, Heide commenced an action in Federal court against WRH, as seller; Sterilite, as manufacturer of the trays; and Dow Chemical Company, as supplier of material entering into the composition of the trays, claiming damages of not less than $600,000 for property damages arising from alleged defects in the trays. [Note 2] Notified by Sterilite of the pending action, Continental provisionally assumed the defense on Sterilite's behalf, then on August 21, 1975, disclaimed responsibility with regard to any damage to the trays, [Note 3] and subsequently, on January 5, 1976, disclaimed all responsibility. Accordingly, Sterilite started to defend itself in Heide's action by engaging and compensating counsel of its own choice.
Court, holding for Sterilite, declared that Continental was in breach of its duty to defend the Heide action on behalf of Sterilite, that it was liable for the counsel fees and related expenses already incurred by Sterilite to the time of judgment (fixed at $108,370.74), and was obligated for the future either to undertake the defense itself or to reimburse Sterilite the further expenses of suit. Continental appeals. We modify the disposition in one particular.
2. When, as in the present case, the allegations of the third-party complaint find apparent lodgment in the effective coverage of the policy, the insurer is obligated to defend. But it can, by certain steps, get clear of the duty from and after the time when it demonstrates with conclusive effect on the third party that as matter of fact -- as distinguished from the appearances of the complaint and policy -- the third party cannot establish a claim within the insurance. Judge L. Hand suggested that the demonstration of the precise basis on which the third-party action will proceed may be made by discovery or other tactics within the third-party action, whose defense will have been undertaken by the insurer. Lee v. Aetna Cas. & Sur. Co., 178 F.2d 750, 752 (2d Cir. 1949). [Note 15] An insurer may make the demonstration when brought into the third-party action upon impleader by the insured. See, e.g., Terrio, supra, 16 Mass. App. Ct. at 164. A declaratory action, in which the necessary interests are represented, may serve for the demonstration. See Atlantic Mut. Fire Ins. Co. v. Cook, 619 F.2d 553, 555 (5th Cir. 1980); Firemen's Fund Ins. Co. v. Chasson, 207 Cal. App.
2d 801, 807 (1962). [Note 16] What is not permitted is that an insurer shall escape its duty to defend the insured against a liability arising on the face of the complaint and policy, by dint of its own assertion that there is no coverage in fact: the insurer then stands in breach of its duty even if the third party fails in the end to support any such claim of liability by adequate proof. See Babcock & Wilcox Co. v. Parsons Corp., 430 F.2d 531, 538-539 (8th Cir. 1970).
4. Besides ordering payment as indicated, the judgment appealed from declares, in substance, that Continental is obligated to defend on behalf of Sterilite or, alternatively, to reimburse Sterilite's expenses of defense. We think the judgment should be modified to declare, in effect, that Continental may absolve itself of the stated obligation from and after the time it makes an appropriate demonstration, as indicated in this opinion, that the third-party claim does not in fact comprise matters for which there is coverage.
[Note 1] Sterilite had also purchased an "excess umbrella third party liability policy" which served to increase the dollar limit of coverage under the "comprehensive" policy but did not itself impose a duty on the part of the insurer to defend third-party actions. Thus we concentrate on the terms of the "comprehensive" policy which did so obligate the insurer. The dollar limit, as raised, was $1.3 million, and the annual premium payable on both policies was about $15,000; the policies ran from 1973 to 1976.
See generally on the "comprehensive" policy Tinker, Comprehensive General Liability Insurance -- Perspective and Overview, 25 Fed'n Ins. Couns. Q. 217 (1975). See also Henderson, Insurance Protection for Products Liability and Completed Operations -- What Every Lawyer Should Know, 50 Neb. L. Rev. 415, 416-425 (1971).
[Note 2] Heide initially filed its action in the United States District Court for the Southern District of New York, but, as there was doubt about jurisdiction, it later, on December 1, 1975, filed another virtually identical action in the District Court for New Jersey. Eventually the first action was dismissed and litigation on the merits went forward in the second.
[Note 3] See the discussion of exclusion (n) of the policy, note 10, infra.
[Note 4] Under the policy, Continental had the "duty to defend any suit against the insured seeking damages on account of such . . . property damage [`property damage to which this insurance applies'], even if any of the allegations of the suit are groundless, false or fraudulent . . ." This obligation was distinct from and of broader scope than the further obligation to indemnify the insured against judgments obtained against it within the policy coverage. See Spoor-Lasher Co. v. Aetna Cas. & Sur. Co., 39 N.Y.2d 875, 876-877 (1976).
[Note 5] For purposes of the present case, we need not explore those decisions which, even where the complaint itself would not cast on the insurer a duty to defend, oblige the insurer to defend if it knows or could readily ascertain facts that implicate such a duty. See the references in Terrio v. McDonough, 16 Mass. App. Ct. 163 , 167 (1983); also Milliken v. Fid. & Cas. Co., 338 F.2d 35, 40 (10th Cir. 1964); 14 Rhodes, supra at Section 51.45; 7C Appleman, supra at Section 4684.01; 1 Long, supra at Section 5.09; Windt, supra at Section 4.03. Compare note 17, infra.
[Note 6] Judge L. Hand early noted the possible effects on the insurer's duty of "the plasticity of modern pleading." Lee v. Aetna Cas. & Sur. Co., 178 F.2d 750, 752 (2d Cir. 1949). There is elaboration and analysis of this point in Terrio v. McDonough, 16 Mass. App. Ct. 163 , 165-169 (1983).
[Note 7] The equipment is spoken of as a "mogul," possibly using that term in a sense derived from a dictionary meaning of a mogul as a locomotive used for hauling heavy trains.
[Note 8] Such a case as Hamilton Die Cast, Inc. v. United States Fid. & Guar. Co., 508 F.2d 417, 419-420 (7th Cir. 1975), cited by Continental, turning on "property damage," requires discriminating reading because the term was defined differently in the policy there at bar. A more-or-less standardized form of 1966 was succeeded by a form of 1973. Tinker, supra at 218, 232-235; 1 Long, supra at Sections 11.01, 11.10. See Guerin Contractors, Inc. v. Bituminous Cas. Co., 5 Ark. App. 229, 236 (1982) (recognizing the increased breadth of the definition of "property damage" introduced in the more recent form of policy).
[Note 9] "Occurrence" was defined in the policy as "an accident, including continuous or repeated exposure to conditions, which results in . . . property damage neither expected nor intended from the standpoint of the insured."
[Note 10] This reading is supported by Honeycomb Syss. Inc. v. Admiral Ins. Co., 567 F. Supp. 1400, 1408 (D. Me. 1983). Any broader interpretation of exclusion (n) encounters serious linguistic difficulties, and, in our view, cannot in any event extend to loss of use of manufacturing equipment as distinguished from the trays proper. Here we should recall that "[e]xclusions from coverage are to be strictly construed" and "[a]ny ambiguity in the somewhat complicated exclusions must be construed against the insurer." Vappi & Co. v. Aetna Cas. & Sur. Co., 348 Mass. 427 , 431 (1965).
[Note 11] There is room for some possible doubt about the meaning of the words "other tangible property" but Continental's argument suggests to us, probably correctly, that the reference is to tangible property other than "the named insured's products," words appearing later in the quoted text. See Todd Shipyards Corp. v. Turbine Servs., Inc., 674 F.2d 401, 418-419 (5th Cir. 1982).
[Note 12] Sterilite has argued that all that is excluded is the warranty phase of Heide's claim, not the negligence phase. See the like suggestion in Western Cas. & Sur. Co. v. Budrus, 112 Wis.2d 348, 353-354 (Ct. App. 1983). See also Willets Point Contracting Corp. v. Hartford Ins. Group, 75 A.D.2d 254, 259 (1980), aff'd, 53 N.Y.2d 879 (1981). We need not rule on this matter.
[Note 13] Tinker, supra at 224, describes such "business risks" as those "which management can and should control or reduce to manageable proportions; risks which management cannot effectively avoid because of the nature of the business operations; and risks which relate to the repair or replacement of faulty work or products. These risks are a normal, foreseeable and expected incident of doing business and should be reflected in the price of the product or service rather than as a cost of insurance to be shared by others." See also Weedo v. Stone-E-Brick, Inc., 81 N.J. 233, 239-250 (1979).
It is understood that, to cover these risks, special forms of insurance may be available, at one time called "product failure" and latterly "product guarantee." See Product Guarantee Legal Liability Insurance, Fire Casualty & Surety Bulletins, Specialty Lines 1 (Nat'l Underwriters Co., May 1981); 17 John Liner Letter (no. 12), 7-8 (John Liner Insurance and Risk Management Advisors, Inc./John Liner Associates Nov. 1980).
[Note 14] There is argument that loss of use of the manufacturing equipment falls under an exclusion (p), but it is enough to say that this interpretation would run counter to the accepted reading of the exclusion which confines it essentially to situations of withdrawal of a product because of a known defect in a "sister" product -- hence (p) is called the "sistership" exclusion. See Todd Shipyards Corp. v. Turbine Servs., Inc., 674 F.2d 401, 419 (5th Cir. 1982). No such situation is encountered here.
[Note 15] The clarification may not come until the third-party action is fully tried, and in that case the duty to defend continues to the end, even if the result of the action is favorable to the insured and there is no judgment against the insured that the insurer needs to make good. Lee, supra, 178 F.2d at 752. See also United States Fid. & Guar. Co. v. Louis A. Roser Co., 585 F.2d 932, 937 (8th Cir. 1978).
[Note 16] United States Fid. & Guar. Co. v. Louis A. Roser, supra note 15, is an example of a declaratory action being tried in tandem with the third-party action.
[Note 17] On the cross-motions in Sterilite's present action, Continental has relied essentially on its interpretation of Heide's complaint and the insurance policy. There was indication in some of Sterilite's "exhibits" submitted on the motions that the trays had buckled or deflected or sagged in use, with damage to the contents and jamming of other equipment, but the information was not particularized. As to whether even solid information reaching the insurer from the insured, and indicating that claimed losses were in fact uninsured, could itself relieve the insurer of its duty to defend, the Lee case says: "This language [requiring the insurer to defend even a baseless claim] means that the insurer will defend the suit, if the injured party states a claim, which, qua claim, is for an injury `covered' by the policy; it is the claim which determines the insurer's duty to defend; and it is irrelevant that the insurer may get information from the insured, or anyone else, which indicates, or even demonstrates, that the injury is not in fact `covered.'" 178 F.2d at 751. On this "irrelevance," see also Clemmons v. Travelers Ins. Co., 88 Ill.2d 469, 476 (1981); Green Bus Lines, 74 A.D.2d at 144-145. But see Rowell v. Hodges, 434 F.2d 926, 929-930 (5th Cir. 1970); American Motorists Ins. Co. v. Trane, 544 F. Supp. 669, 688 (W.D. Wis. 1982).
[Note 18] Continental asserted that too many lawyers were put to work on some parts of the defense of the Heide litigation but a supplemental affidavit on Sterilite's behalf tends to meet this criticism.
[Note 19] See S.J.C. Rule 3:07, DR 2-106 (Fees for Legal Services), as appearing in 382 Mass. 772 (1981); First Natl. Bank of Boston v. Brink, 372 Mass. 257 , 265 (1977). See also Salem Realty Co. v. Matera, 10 Mass. App. Ct. 571 , 576 (1980), S.C., 384 Mass. 803 (1981).
[Note 20] Whether Continental could become responsible for Sterilite's expenses in prosecuting the present declaratory action, we need not discuss, for Sterilite abstains from pressing any such claim. See Annot., 87 A.L.R.3d 429, 441-449 (1978).

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