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Present: HENNESSEY, C.J., WILKINS, ABRAMS, NOLAN, & O'CONNOR, JJ.
COMPLAINT for divorce filed in the Middlesex Division of the Probate and Family Court Department on October 7, 1983.
The case was heard by Edward M. Ginsburg, J.
Ruth R. Budd (Kathleen A. Bryan with her) for the defendant.
Paul D. Pearson (Michael Fredrickson with him) for the plaintiff.
Marilyn Ray Smith, Pro se & others, amici curiae, submitted a brief.
WILKINS, J. On August 6, 1984, by a judgment nisi of divorce, a Probate and Family Court judge (1) awarded the wife legal and physical custody in Georgia of the parties' daughter, Jessica, (2) divided the parties' assets, (3) ordered that the husband pay child support, and (4) left each party to pay his or her own attorney's fees. On appeal, the wife challenges the Probate and Family Court's jurisdiction to determine custody and contests the division of assets, the amount of weekly child support payments, and the judge's determination not to order the husband to pay her attorney's fees. We transferred her appeal to this court. We reject the wife's challenge to the jurisdiction of the Probate Court to determine custody, but we remand the case for redetermination of the issues of property division, child support, and allocation of legal fees.
We summarize certain of the judge's findings. The parties were married in Maryland in 1979 and moved into a house the husband had recently purchased in Carlisle, Massachusetts. Jessica was born in January, 1980. The wife, who had been an associate in a Washington, D.C., law firm before her marriage, enrolled in the LL.M. tax program at Boston University in September, 1980. They continued to live in Carlisle until December, 1981, when the wife and Jessica went to Georgia where the wife's parents lived. The wife and Jessica returned to Carlisle and stayed from mid-March, 1982, until late July, 1982, and again from late May to late July, 1983. The husband, who has a master of science degree in electrical engineering from the Massachusetts Institute of Technology, started his own business in May, 1980. The wife, a graduate of the Hastings College of Law, became an assistant professor of law at Mercer University in Macon, Georgia, in July, 1982 (one month after she received her master's degree).
1. The wife challenges the court's jurisdiction to enter any child custody order in this proceeding. [Note 1] The husband has not appealed, and the wife acknowledges that the terms of the custody order are satisfactory. [Note 2] Nevertheless, for some tactical reason, the wife wants the custody portion of the judgment vacated. After the entry of the judgment nisi, at the husband's request the judge made supplemental findings of fact which demonstrate on the record a basis for jurisdiction.
The husband filed his complaint for divorce in October, 1983, and amended it in December, 1983, to include a prayer for joint legal custody of Jessica. The wife filed a custody action in Georgia in May, 1984. A hearing in the Georgia proceeding was held on July 20, 1984. The husband questioned the Georgia court's jurisdiction in light of the pending prior Massachusetts custody proceeding. After the judge heard one day's evidence on the custody issue, he said he would prepare a transcript of that proceeding and would advise the Massachusetts judge that the transcript was available. He added that he would withhold any decision on custody and whether to receive further evidence until he discussed the matter with the Massachusetts judge.
Four days later trial began in Massachusetts. Here the wife asserted that the court lacked jurisdiction to determine custody. We know from the judge's supplemental findings that, after the trial concluded on July 31 and before his findings and rulings were entered, the judge spoke on the telephone at least twice with his Georgia counterpart concerning the jurisdictional issues and the substance of the custody provisions to be included in the judgment nisi. According to the judge's supplemental findings, the two judges agreed that the Massachusetts court "was the more appropriate forum for making the initial custody and visitation determination, and that the Georgia court was the more appropriate forum for dealing with any problems of enforcement or modification thereof." They considered that proceedings were pending first in Massachusetts and that bifurcation of divorce and custody proceedings would be wasteful and dilatory. The parties had agreed that Massachusetts should resolve all property and financial issues, including child support. Quite rightly, the two judges agreed that child support could not be determined without first deciding custody.
The Massachusetts court had jurisdiction to determine custody of Jessica under G. L. c. 209B, Section 2 (a) (4), because "another state [here Georgia] has declined to exercise jurisdiction on the ground that the commonwealth is the more appropriate forum to determine the custody of the child, and [because] it is in the best interest of the child that a court of the commonwealth assume jurisdiction." The Georgia judge's agreement that Massachusetts was the more appropriate forum to make the initial custody determination (see G. L. c. 209B, Section 2 [a]) has a rational basis on the record and constitutes a declination of initial jurisdiction in Georgia. The Massachusetts judge did not explicitly find, as he should have (stating his reasons), that assumption of jurisdiction here was in Jessica's best interest. Although G. L. c. 209B, Section 2 (a) (4), does not set forth considerations relevant to whether the court's assumption of jurisdiction is in the best interest of the child, Section 2 (a) (2) does. The child and at least one parent must have a "significant connection" with the Commonwealth, and "substantial evidence concerning the child's present or future care, protection, training, and personal relationships" must be available here. The record, which includes a transcript of the Georgia custody hearing, warrants the judge's implicit finding that the assumption of jurisdiction here was in Jessica's best interest.
2. In her challenge to the judge's division of assets, the wife argues that, as a result of the judgment nisi, the husband's assets are substantial and she is left in debt. After making findings on all elements he was required to consider under G. L. c. 208, Section 34 (1984 ed.), the judge directed the husband to pay the wife $15,000 "in satisfaction of all claims for alimony or a division of property under M.G.L. c. 208, Section 34." His only explanation as to how he arrived at the amount awarded was to state that the division of assets reflected his "assessment of what each party directly or through others contributed to the marriage and all the factors under M.G.L. c. 208, Section 34."
The wife particularly complains that the judge overlooked (a) the substantial appreciation of the value of the marital home between the time of the marriage and the entry of judgment and (b) the value of the husband's business. The husband bought the house shortly before the marriage, investing approximately $12,000. At the time of the hearing, the value of the equity in the house exceeded $80,000. The husband's business, which he commenced during the marriage, was worth approximately $200,000 at the time of the hearing, but had little value in December, 1981, when the wife first went to Georgia with Jessica.
If a judge has made findings consistent with his obligations under G. L. c. 208, Section 34 (Rice v. Rice, 372 Mass. 398 , 402-403 ), indicating that he has fairly considered all factors relevant under Section 34 and has not considered any irrelevant matter, his determinations as to alimony and property division may not be reversed unless "plainly wrong and excessive." See Ross v. Ross, 385 Mass. 30 , 37-38 (1982); Bianco v. Bianco, 371 Mass. 420 , 422-423 (1976); Robbins v. Robbins, 16 Mass. App. Ct. 576 , 579 (1983). The judge's reasons for his conclusions, however, must be apparent in his findings and rulings. Any failure in the decision-making process to consider and explain the effect of an important fact may require reversal of the judgment in order to permit consideration and explanation of the omitted subject. See Putnam v. Putnam, 5 Mass. App. Ct. 10 , 17 (1977) ("the rationale for the division does not appear either explicitly or by clear implication"); Inker & Clower, Towards a New Justice in Marital Dissolution: The Massachusetts Statutory Scheme and Due Process Analysis, 16 Suffolk U.L. Rev. 907, 925 (1982) ("mere listing of findings, even if detailed, is not enough"). See also Grubert v. Grubert, 20 Mass. App. Ct. 811 (1985) (careful findings under G. L. c. 208, Section 34, will not preclude reversal of clearly inadequate financial arrangement).
The judge concluded that the "short term" marriage was a "failure from the start" and that the husband and wife did not work together as partners toward the development of the marital assets. Each person entered the marriage as an independent professional. "[They] lived separate lives and were never able to communicate with each other or to form a lasting partnership." Because "they never "pulled together as a family." The judge also found that their financial contributions to the development of each other's careers offset one another.
The judge was warranted in concluding that this was not a typical marriage in which, whether as wage earner or as homemaker, each partner contributed to rearing children and accumulating marital assets. Each party has a respectable income; neither needs alimony. The wife left the marriage with a master of laws degree, $15,000 from the husband, and few other assets. The husband retained the marital home, the value of which had increased largely because of inflation and a general appreciation in the real estate market. He also retained his business, which had no market value when in 1981 the wife left and took a job teaching law in Georgia, but had a value of $200,000 at the time of the divorce hearing. The model from which the principles of G. L. c. 208, Section 34, derive (see Hay v. Cloutier, 389 Mass. 248 , 254 ) does not easily fit this marriage.
The findings and conclusions concerning asset distribution appear to place no significance either on the fact that, from the time of the parties' separation until the judgment was entered, the wife provided all Jessica's financial support and assumed full responsibility for Jessica's care, or on the fact that the wife has moved to her parents' home where, although they can aid in Jessica's upbringing, the community may offer fewer opportunities for the wife's career advancement than are available in many other places. The judge's conclusions concerning asset division should have explicitly reflected whether and, if so, how he weighed the wife's possible career sacrifices and her contributions to Jessica's care.
On remand, the judge should supplement his discussion to address the omitted subjects. If he concludes that the wife's apparent career sacrifices and her recent contributions to child care do not require a change in the result, he should explain why. If he concludes that the omitted subject should be reflected in some additional way, he would be warranted in doing so through an adjustment in the division of assets, in the award for child support, or both. The division of property will necessarily affect the ability of each party to contribute to child support.
3. The judge's findings and conclusions do not adequately justify his award to the wife of only $55 a week for child support. On the record, the allowance may not be justifiable as a matter of law. The judge stated that the "order takes into account the current economic condition of the parties, the needs of the child, and the expenses that the husband will incur to exercise his visitation rights." The judge made no determination of what the child's needs were. [Note 5] Moreover, the judge did not discuss how the relative income and liabilities of the husband and the wife affected his conclusion. The husband had an annual income of $42,500 (plus fringe benefits) from an apparently prospering company which he owns and controls. The wife's income was $35,000 a year. After reflecting the husband's payment of $15,000 to the wife, she remained in debt, and he had net assets of more than $225,000. The judge noted that the husband will incur expenses in visiting Jessica and in having her visit him in Massachusetts, but he made no finding as to what those expenses would be. Nor did the judge consider the consequences if the husband should not exercise his visitation rights and thus not incur the associated expenses.
We remand the case for further consideration of the propriety, in the circumstances, of awarding the wife only $2,860 a year for child support. This amount is considerably less than one-half the annual expenses the wife is likely to incur. It represents less than 7% of the husband's annual income. Thus the portion of the financial obligations for the support of Jessica placed on the wife exceeds the husband's, absolutely and as a percentage of annual income. [Note 6] Although a judge has considerable discretion in determining support obligations, children are entitled to adequate support obligations, children are entitled to adequate support and maintenance reasonably within the power of both parents to furnish it. Angelone v. Angelone, 9 Mass. App. Ct. 728 , 731 (1980). See Whitney v. Whitney, 325 Mass. 28 , 31 (1949). See also Silvia v. Silvia, 9 Mass. App. Ct. 339 , 340-341 (1980). In his reappraisal, the judge should consider our discussion of the division of assets. There is a value, although not easily measured, to the wife's substantial custodial contributions (see Earle v. Earle, 13 Mass. App. Ct. 1062 , 1064  [rescript opinion]), and there appears to be a possible negative impact on the wife's career due to her place of residence.
4. The judge left each party to pay his or her own counsel fees. The issue, including fees and costs associated with this appeal, will be open for reconsideration on remand. See Davidson v. Davidson, 19 Mass. App. Ct. 364 , 378 (1985); Zildjian v. Zildjian, 8 Mass. App. Ct. 1 , 17 (1979). We do not suggest that an explicit order that the husband pay all or part of the wife's attorney's fees is required. See Ginsburg, M.G.L. c. 208, Section 34 -- Some Observations About the Division of Property Leading to Predictability and Consistency, 25 B.B.J. No. 1, at 10, 12 (1981).
The judge seems to have concluded improperly that the wife was at fault in raising the question of the Massachusetts court's jurisdiction to determine Jessica's custody and in commencing the Georgia custody proceeding. He characterized the wife's position as exacerbating the conflict between the parties and unnecessarily increasing the costs of the proceedings. The question of jurisdiction of the custody question in any Massachusetts court was certainly problematic until the Georgia judge declined jurisdiction, and the wife's position on jurisdiction, even then, is far from frivolous, although it is not clear that, as a practical matter, the point was worth pursuing on appeal.
[Note 1] Although the wife has legal and physical custody of Jessica in Georgia, the husband has monthly visitation rights there and the right to have Jessica visit him in Massachusetts at various times, all at his expense.
[Note 2] One might expect that now the wife would have no sound reason to question the jurisdiction of the Probate Court to enter the custody order. We deplore the inability of the parties to resolve the nonissue of custody, perhaps by the entry in the pending Georgia custody proceeding of a consent judgment concerning custody identical to the Massachusetts judgment.
[Note 3] In cases such as this it seems appropriate to use the telephone as the means of communication. See Berry v. Berry, 466 So.2d 138, 140 (Ala. Civ. App. 1985); McCarron v. District Court for the County of Jefferson, 671 P.2d 953, 955 (Colo. 1983); Neger v. Neger, 93 N.J. 15, 34 (1983). We do recommend that each judge make a prompt written record of his or her conclusions and that the basis for any agreement be set forth, in at least general terms, in documents of record.
[Note 4] We need not and should not decide whether the Georgia judge properly declined jurisdiction of the initial custody determination. Under that State's statute, the judge was directed not to exercise jurisdiction if, at the time of the filing of the custody petition, a custody proceeding was already pending in "another State exercising jurisdiction substantially in conformity with [the Georgia act]." Ga. Code Ann. Section 74-507(a) (Harrison 1981). The Massachusetts court may have been proceeding substantially in conformity with the Georgia act (see id. Section 74-504 which closely follows & section 3 of the uniform act), even if the Massachusetts court might not have had jurisdiction under G. L. c. 209B, Section 2. Section 2(a)(2), the analog of Section 3(2) of the uniform act, includes language incorporated from the Parental Kidnapping Prevention Act (28 U.S.C. Section 1738A[c][B] ), and is more restrictive of jurisdiction than are Section 3(2) of the uniform act and Section 74-504(2) of the Georgia act. See generally Coombs, Interstate Child Custody: Jurisdiction, Recognition, and Enforcement, 66 Minn. L. Rev. 711, 777-780 (1982).
[Note 5] At trial the wife overstated Jessica's needs for financial support, and her appellate counsel has perpetuated that overstatement. After corrective adjustments, Jessica's total annual expenses appear to be well over $6,000.
[Note 6] There is some ground for the view that the noncustodial parent's child support contribution might best be related to a percentage of his or her income so that the child may benefit from that parent's financial success. Ginsburg, Guidelines for Child Support Orders, 3 Mass. Fam. L.J. 49, 49 (1985) (income sharing approach "is the fairest and easiest to apply").
[Note 7] Although in his findings of fact and rulings of law the judge indicated that Georgia courts should consider any problems of enforcement or modification of his custody and visitation order, the judgment nisi itself does not make the point in such terms. The judge should feel free to supplement the judgment nisi in this respect.

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Tana WOOD, Superintendent of Washington State Penitentiary, and Kenneth O. Eikenberry, The Attorney General of the State of Washington.
United States District Court, W.D. Washington, Northern Division, at Seattle.
*1308 David Allen, Richard A. Hansen, Todd Maybrown, Allen & Hansen, Seattle, WA, Kathryn Lund Ross, Jones, Ross, Besman & Connolly, P.S., Lynnwood, WA, for petitioner.
Mitchell Edward Rupe, pro se.
John Scott Blonien, John M. Jones, Paul Douglas Weisser, John Joseph Samson, Atty. Gen. Office, Corrections Div., Olympia, WA, Daniel G. Steele, U.S. Dept. of Justice, Environmental and Natural Resources Div., Washington, DC, for respondents.
This matter comes before the Court in connection with Mitchell Edward Rupe's petition for habeas corpus pursuant to 28 U.S.C § 2254, alleging that Petitioner's hanging would constitute cruel and unusual punishment because of his peculiar circumstances (Claim S.5.23). Petitioner contends that because of his excessive weight, he is likely to be decapitated if judicially executed in accordance with the State's protocol for hanging. (Pretrial Order, docket no. 228 at page 2). The Respondent has moved for summary judgment, docket nos. 112 and 168, relating to this claim. The Court held a hearing commencing on July 11, 1994, to hear testimony on this and other remaining issues. The Court has considered the testimony presented at the hearing and the briefs and other pleadings filed by the parties and now enters its Findings of Fact and Conclusions of Law relating to Claim S.5.23.
1. Petitioner Mitchell Rupe has been sentenced to death under Washington State law.
2. Pursuant to RCW 10.95.180, the punishment of death in Washington shall be inflicted by hanging by the neck or, at the election of the defendant, by intravenous injection of a substance or substances in a lethal quantity sufficient to cause death. P.T.O. ¶ 3.
*1309 3. As of September 2, 1993, Mitchell Rupe weighed 409¼ pounds and measured 6' ¼" in height. P.T.O. ¶ 2. Petitioner has struggled with weight problems throughout most of his life. After 8½ years of military service, Petitioner was honorably discharged in December, 1980 because he could not lose enough weight to meet new army regulations. Petitioner's obesity presents an unusual and exceptional circumstance which is likely to dramatically affect the execution process.
4. In Washington, execution by judicial hanging is carried out at the Washington State Penitentiary in Walla Walla, and is generally conducted pursuant to the Washington Field Instruction 410.500 ("Washington Field Instruction"). P.T.O. ¶ 4; Exhibit 15. The Washington Field Instruction requires use of manila hemp rope of a diameter between ¾ inch and 1¼ inches. The rope is soaked and then stretched. The knot is treated with wax, soap, and clear oils to ensure a smooth sliding action. P.T.O. ¶ 5.
5. The Washington Field Instruction uses a "long drop" method of hanging, in which the condemned person is dropped a particular distance based on his or her weight. The Washington Field Instruction contains altering drop lengths for persons ranging from 120 pounds to 220 pounds. Under the Washington Field Instruction, persons weighing more than 220 pounds will be dropped a distance of five (5) feet unless the Superintendent of the Washington State Penitentiary exercises the authority to deviate from the Field Instruction. P.T.O. ¶ 7.
6. Tana Wood is the Superintendent of the Washington State Penitentiary and the person who is now responsible for the preparation and carrying out of executions in the State of Washington. On December 7, 1993, Superintendent Wood testified during her deposition that Mitchell Rupe would be dropped a distance of five feet, as is set forth in the Washington Field Instruction, if judicially hanged at the weight of approximately 409 pounds. Superintendent Wood also testified, however, that she might consult with experts and the drop distance might be changed based on such consultation. P.T.O. ¶ 8.
7. At a telephone conference with counsel on May 9, 1994, the Court ordered the Respondent to determine by June 10, 1994, the drop length to be used for Mr. Rupe's hanging. Minutes, docket no. 203. On June 9, 1994, Superintendent Wood determined that Mr. Rupe would be dropped a distance of 3 feet 6 inches if judicially hanged at the weight of approximately 409 pounds, using a rope with a 7/8 inch diameter. Wood testified at the hearing that this decision was based upon advice given to her by Dr. Bahram Ravani, an engineering expert consultant hired by the State of Washington, as well as her observations of the hanging executions of Westley Allen Dodd ("Dodd") and Charles Rodman Campbell ("Campbell") which have recently been carried out at the Washington State Penitentiary. Wood received no input from medical experts in connection with this decision.
8. Wood testified that she made the decision to reduce the drop length to 3 feet 6 inches and to fix the rope size at 7/8 inch diameter in order to reduce or eliminate the possibility of decapitation.
9. The Washington Field Instruction relating to the drop lengths for persons of different weights is derived from a British study of hanging and the standard United States military drop chart for hanging. Before adopting the Washington Field Instruction, the State of Washington possessed very little information regarding the Army regulations. The source of the Army manual drop chart is unknown. The Army has never conducted a hanging execution pursuant to its regulations. The potential energy in foot-pounds which will result when a person is hanged can be calculated by multiplying the weight of the condemned person by the distance the person will be dropped. For example, a weight of 220 pounds and a drop distance of five feet would result in a potential energy total of 1100 foot-pounds. The British historically sought to utilize an energy level of 1260 foot-pounds during each judicial hanging. The Washington protocol calls for proposed energy levels slightly below the 1260 foot-pound level recommended by the British. Under the Washington protocol for hanging a 220 pound person (the *1310 highest weight listed in the protocol) at a drop distance of five feet, the proposed energy level would be 1100 foot-pounds.
10. The goal of judicial hanging is to provide a quick and painless death without causing decapitation. The Washington method, like other "long drop" methods of judicial hanging, attempts to achieve this result by dropping the condemned person a sufficient distance to cause a fracture dislocation of the spinal column and a stretch injury of the spinal cord and lower brain stem, but not so far as to cause a decapitation. To avoid a decapitation, the forces applied must not be so great as to destroy the tissue surrounding the spinal column, which would result in a separation of the head from the body.
11. The potential energy level which would result from hanging Petitioner at a weight of 409¼ pounds using a drop length of 3 feet 6 inches would be 1432 foot-pounds. This is approximately a 30% increase in potential energy in foot-pounds from the level indicated for the highest weight of 220 pounds and drop distance of 5 feet in the Washington Field Instruction.
12. Charles Campbell was judicially hanged by the State of Washington on May 27, 1994. Prior to his death, Campbell was a muscular person who exercised frequently and his neck muscles were well developed and strong. He was in excellent physical shape. At the time of his execution, Campbell weighed 232 pounds. The State used a 7/8 inch-diameter rope and a drop length of five (5) feet. This resulted in an expected energy level of approximately 1160 foot-pounds. Campbell's hanging resulted in a fracture separation of his cervical vertebrae C2 on C3, and a complete transection of the upper cervical spinal cord. Exhibit A-8. Campbell became unconscious immediately upon reaching the end of the rope, and death occurred very rapidly thereafter. Dr. Donald Reay, the Chief Medical Examiner for the King County, Washington, Medical Examiner's Office, performed the autopsy on Campbell and testified that there was no evidence of decapitation nor did he believe that decapitation was imminent or threatened. There was no transection of skin or musculature. The extent of the injuries to Campbell's musculature could not be fully determined because of significant hemorrhage of the neck muscles. The carotid arteries were intact except for some minimal tears. However, Campbell suffered deep abrasions to the skin about the neck. Campbell's body hung in space for about five (5) minutes after death.
13. Dr. Reay testified and the Court finds that in the event Petitioner is dropped 3 feet 6 inches and the execution protocol contained in the Washington Field Instruction, Exhibit 15, is followed, unconsciousness will definitely occur as a result of occlusion of the carotid arteries in 6 to 10 seconds and that spinal shock will also occur which would virtually assure very rapid, if not immediate, unconsciousness. Dr. Reay did not give any opinion as to the likelihood of decapitation if these procedures are used.
14. The State of Washington contends that there is no risk of decapitation if Petitioner is hanged using a 7/8 inch-diameter rope and a 3 foot 6 inch drop length. The State relies upon tests conducted at the Washington execution chamber at Walla Walla, Washington, by their expert consultant, Bahram Ravani, Ph.D. Ravani holds formal degrees in mechanical engineering and has been involved in engineering aspects of biomechanics since 1979. Ravani has been associated with the Traffic Safety Research Corporation in Sunnyvale, California since 1979 working as a specialist in personal injury mechanics and accident reconstruction. Ravani relied on the medical testimony and opinions of Dr. Richard Mason, also associated with the Traffic Safety Research Corporation since 1979. The tests conducted by Ravani are outlined in Exhibit 60. In these tests Ravani dropped weights to simulate the hangings of Dodd, Campbell and Rupe. Ravani used a load cell connected to a computer to obtain readings measuring the peak dynamic forces in the rope at the end of each drop. The load cell readings represented the maximum *1311 force (load) applied to the neck of the prisoner at the time of execution. Ravani conducted only one valid test (Test 6) simulating Campbell's weight, using a five foot rope that was 7/8 inch in diameter. The weight actually dropped 6.25 feet, which resulted in a load cell reading of 4200 pounds. At the hearing Ravani recalculated this load assuming a drop of 7 feet 3 inches, the drop length experienced by Campbell according to Dr. Mason's observations. At this drop length the load force exerted would be 4523 pounds. Ravani conducted only two valid tests (Tests 7 and 10) simulating Petitioner's weight. The first test (Test 7) involved a rope length of 60 inches (an actual drop length of 6.06 feet) and a 1.25 inch diameter rope. This test resulted in an indicated load force of 8600 pounds. When Ravani recalculated this test, using a 3 foot 6 inch drop length and a 7/8 -inch diameter rope, he concluded that the load force would be 6059 pounds. Ravani testimony, Transcript at 117. The second test simulating Rupe's weight (Test 10) involved a drop length of 45.5 inches with a 1.25 inch diameter rope. This test resulted in an actual drop length of 5.58 feet and a load force of 8300 pounds. When Ravani recalculated this test using a rope length of 3 feet 6 inches and a 7/8 inch diameter rope, he concluded that the load force would be 5814 pounds. Ravani testimony, Transcript at 118. Ravani testified that Test 10 provided him with his best data. Ravani's tests show that, if Mr. Rupe were hanged using a 7/8 inch diameter rope and a 3.5 foot drop, his neck would experience between 28% (comparing Test 6, as adjusted for an actual drop of 7.25 feet, to Test 10) and 33% (comparing Test 6 to Test 7) more force than applied to Mr. Campbell. Although Ravani also conducted other tests at Walla Walla, only these tests provide any valid basis for his testimony and opinions. Ravani did not conduct any tests simulating Mr. Rupe's execution using a 7/8 inch diameter rope or a drop length of 3 feet 6 inches. Ravani's only two valid tests simulating Rupe's hanging resulted in estimated load levels of 8600 pounds of force (Test 7) and 8300 pounds of force (Test 10), before adjustment for rope diameter and drop length. The Court finds that little weight should be given to the opinions of Dr. Ravani based on the limited tests performed by him and his reliance on Dr. Mason's testimony. Ravani testified that, "I do not have an exact knowledge or information on the level of force and the time of force application that can cause decapitation in judicial hanging." Ravani Affidavit at ¶ 62.
15. The State also relied upon the testimony of Richard T. Mason, M.D., Forensic Pathologist-Coroner for the Sheriff of Santa Cruz County, California. Mason personally witnessed the execution of Charles Campbell, reviewed the autopsy photos, x-rays and MRI's of Campbell, and testified that in his opinion executing Mr. Rupe using a 3.5 foot drop and a 7/8 inch diameter rope "will result in a quick and painless death without decapitation." Mason Aff. at ¶ 11. Mason testified that the cervical spine separates at 600 to 700 pounds of force. Mason also testified that the spine provides approximately 25% of the neck strength, and the muscles and skin provide the remaining 75% of neck strength. Mason also testified that in his opinion the human neck could absorb 5000 pounds of dynamic force. The Court gives little weight to the testimony of Dr. Mason. In March *1312 1994, Mason testified by deposition that Rupe's hanging could be accomplished without decapitation using a drop length of 5 feet. He also testified at his deposition that there would be a greater risk of decapitation if a 7/8 inch rope was used instead of a 1.25 inch rope. At the hearing, Mason admitted that all of his initial opinions were wrong. Mason has not performed any tests and relies solely on his observation of Campbell's execution and the opinions of Dr. Ravani.
15. Dr. Ravani relied upon Dr. Mason in forming his own opinions on the recommended drop length for Mr. Rupe. Ravani Affidavit, docket no. 240, at ¶¶ 82 and 83. Dr. Ravani has no medical experience or training. Dr. Mason testified that the spine could absorb 700 pounds of dynamic force (which is 25% of the force the entire neck can absorb) and the neck muscles and skin could absorb 2100 pounds (which is 75% of the force the entire neck can absorb), and that 5000 total pounds of force will be applied to Rupe's neck if he is hanged using a 7/8 inch diameter rope and a drop length of 3.5 feet. Ravani admitted during cross examination that if Dr. Mason's estimates are correct, the total amount of force applied to Mr. Rupe's neck will exceed the total force the entire neck can absorb by 2200 pounds, and as a result of this excessive force, "there is a high chance of decapitation." Ravani Transcript at 87.
16. Petitioner contends that there is an 80%-90% risk of decapitation if Petitioner is hanged using a 3 foot 6 inch drop length and a 7/8 inch diameter rope. Petitioner relies upon the testimony of Alan Tencer, Ph.D. Tencer holds formal degrees in mechanical engineering and is the director of the Biomechanics Laboratory at Harborview Hospital in Seattle. Biomechanics is the application of basic principles of mechanics and mechanical engineering to the human body. Petitioner also relies upon the testimony of Donald P. Becker, M.D., Chief of Neurological Surgery at the University of California at Los Angeles Medical Center.
17. Dr. Tencer testified by affidavit, docket no. 234, dated June 29, 1994, that, "Because there have been no studies or research regarding the precise energy levels necessary to separate the head from the body in a judicial hanging, I cannot predict the outcome of a 3.5 foot hanging with the confidence level I feel in regard to a 5-foot hanging." Affidavit at ¶ 18. Tencer testified that based in part on the Campbell hanging, "I now believe that there is some significant risk of decapitation if the State of Washington drops Mr. Rupe a distance of 3.5 feet." Affidavit at ¶ 18. At the hearing, based in part on a more recent test conducted, Tencer stated that he believed there was a 80%-90% chance of decapitation under these circumstances. Dr. Tencer relied in part on a recent muscle tensility test he conducted on the neck tissue of a 71-year old male cadaver. Tencer testified that the spine could absorb a maximum energy force of approximately 800 foot-pounds, and the neck muscle and skin could absorb only an energy force of approximately 75 to 200 foot-pounds. Based on Campbell's weight and a drop length of five feet, Tencer estimated that Campbell's hanging involved an energy of 1160 foot-pounds. Affidavit at ¶ 21. After hanging, Campbell's head remained attached to his body by the strength of only his neck muscles, larynx and skin. Tencer testified that the Rupe hanging would involve an energy level of 1435 foot-pounds (410 pounds multiplied by a drop length of 3.5 feet), which is 24% greater than the energy level in Mr. Campbell's case. Because of the additional energy that will be applied in the proposed Rupe hanging, Tencer concluded that decapitation is very likely to occur.
18. Dr. Becker also testified for the Petitioner. Becker testified that assuming a drop distance sufficient to disrupt Mr. Rupe's cervical column, it is his opinion that Rupe would be decapitated.
19. Judicial hanging results in a dynamic, rapid load which is applied to the cervical spine. The load is not applied in a pure axial *1313 fashion but rather unequally to one side of the spinal column in a tearing, shearing fashion that proceeds across the spinal column from side to side or front to back.
20. None of the parties have produced scientific studies or tests which provide the Court with a firm basis to determine whether or not Mr. Rupe will be decapitated if hanged using a 7/8 inch-diameter rope and a drop length of 3.5 feet. Because of the human nature of judicial hanging, no definitive tests are possible. Decapitation has been reported to have occurred in connection with other judicial hangings. See Petitioner's Exhibits 38, 39, 40, 44 and 45. Petitioner's counsel have also produced graphic pictures showing the decapitation of Black Jack Ketchum in New Mexico in 1901. The Court finds that decapitation is a recurrent phenomenon in the history of judicial hanging. While it is difficult to quantify the frequency of decapitation and the precise cause of any particular decapitation which is described in the historical literature, it appears that there is some correlation between the size of the condemned person and the risk of decapitation. The historical literature supports a conclusion that decapitation is more likely to occur during a long-drop hanging when the condemned person has excessive body weight.
21. Based on testimony of the witnesses and the exhibits produced at the hearing, the Court finds that if Mr. Rupe is judicially hanged with a 7/8 inch diameter rope and a drop length of 3 feet 6 inches, and the Washington Field Instruction is followed, death will occur by separation of the vertebrae which will cause spinal cord transection and rapid or immediate unconsciousness and death. A person who is unconscious has no sensation of pain or suffering.
22. The Court further finds that if Mr. Rupe is judicially hanged in accordance with the State's protocol, the force dynamically applied to Rupe's neck will exceed that applied to the neck of Charles Campbell by at least 24-40%.
23. Based on the nature and extent of the injuries to Campbell and the limited tests conducted by the experts who testified at the hearing, the Court finds that Petitioner has established by credible evidence that there is a significant risk of decapitation if Petitioner is judicially hanged using a drop length of 3.5 feet under the Washington protocol outlined in the Washington Field Instruction. In the event decapitation occurred, it would result in immediate or near immediate unconsciousness and death, and in mutilation to Rupe's body.
24. The Washington judicial hanging protocol, as modified by Superintendent Wood's decision to use a 3 foot 6 inch drop length for Petitioner, was not based on adequate investigation or reliable testing and does not eliminate the significant risk of decapitation if Petitioner is hanged.
25. The parties and their experts have focused their investigations and arguments on the State's decision to use a 3 foot 6 inch rope to hang Mr. Rupe. During the hearing, Dr. Tencer testified that, in his opinion, if Rupe were hanged using a drop length of 2.7 feet to 3 feet, Rupe would likely suffer the same injuries as Campbell and the risk of decapitation would be slight. Tencer Transcript at 16-17 (July 16, 1994). Dr. Ravani also testified that a drop of 3 feet would not result in decapitation for Mr. Rupe. However, Dr. Ravani also expressed concerns over using any drop length less than 3 feet 6 inches. Dr. Ravani told Superintendent Wood that any drop length less than 3 feet 6 inches would increase the risk of a less than instantaneous death. These opinions were provided without the benefit of tests or formal investigation of any kind. The Court finds that any reduction of the drop length below 3 feet 6 inches would decrease the risk of a fracture of the spinal cord and would increase the risk of death by strangulation. Death by strangulation would result in prolonged suffering prior to death.
*1314 26. In the event decapitation occurs, it will result in mutilation to Rupe's body.
1. The Eighth Amendment prohibits "cruel and unusual punishment." Campbell v. Wood, 18 F.3d 662, 681 (9th Cir. 1994). Judicial hangings, as conducted pursuant to the Washington Field Instruction, generally do not violate the Eighth Amendment. Id. at 687. The issue presented here is whether the Washington Field Instruction, as modified by Superintendent Wood to accommodate Rupe's peculiar physical characteristics, violates the Eighth Amendment as it relates to Petitioner. Because the Court has found that there is a significant risk that Rupe's hanging will result in decapitation, the question is whether such decapitation violates the Eighth Amendment.
2. The Eighth Amendment does not require a State's execution procedure to remove every single possibility of error. "The risk of accident cannot and need not be eliminated from the execution process in order to survive constitutional review." Campbell, 18 F.3d at 687. However, in this case, unlike Campbell, there is a significant risk of decapitation if Petitioner is hanged. Thus, the risk of decapitation cannot be dismissed as a "possible error" or "accident."
3. Traditional methods of execution selected by a state's legislature are presumed to be valid. Gregg v. Georgia, 428 U.S. 153, 175, 96 S. Ct. 2909, 2926, 49 L. Ed. 2d 859, 876 (1976). This is true, at least in part, "because the constitutional test is intertwined with an assessment of contemporary standards and the legislative judgment weighs heavily in ascertaining such standards." Id. The Washington State Legislature has selected hanging as a form of capital punishment. The Legislature has not selected, however, the drop length for a person weighing over 400 pounds, nor has it considered whether hanging would be proper if there was a significant risk of decapitation. Because of this, the State should not benefit from a presumption of validity in this case.
4. The Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Gregg, 428 U.S. at 173, 96 S. Ct. at 2925 (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958)). Public attitudes toward hangings that might carry a slight risk of decapitation cannot be equated with public attitudes toward hangings that carry a significant risk of decapitation. Objective indicia of this attitude, see Gregg, 428 U.S. at 173, 96 S. Ct. at 2925, are found in the history of court decisions that list beheading as one of the traditional methods of execution barred by the Eighth Amendment. See, e.g., Campbell, 18 F.3d at 681; Furman v. Georgia, 408 U.S. 238, 264-65, 92 S. Ct. 2726, 2739, 33 L. Ed. 2d 346 (1972) (Brennan, J. concurring); Wilkerson v. Utah, 99 U.S. 130, 135, 25 L. Ed. 345 (1879). No state has ever provided for execution by axe or guillotine. A hanging that is likely to result in decapitation is contrary to "public perceptions of standards of decency." Gregg, 428 U.S. at 173, 96 S. Ct. at 2925.
*1315 5. Because the Court concludes that there is a significant risk that Rupe's hanging would result in decapitation, such a hanging would also violate basic human dignity, "which is the `basic concept underlying the Eighth Amendment.'" Gregg, 428 U.S. at 173, 96 S. Ct. at 2925 (quoting Trop, 356 U.S. at 100, 78 S.Ct. at 597). Supreme Court cases discussing the history of the Eighth Amendment make clear that decapitation and similar mutilation, even if accomplished after death and thus perhaps without "unnecessary and wanton infliction of pain," offend basic human dignity. See Furman, 408 U.S. at 253-54, 92 S.Ct. at 2733-34; Wilkerson, 99 U.S. at 135.
6. The Court concludes that the hanging of petitioner under the procedures selected by the State of Washington would result in a significant risk of decapitation and therefore violates the Eighth Amendment to the United States Constitution.
7. Because of the significant risk of decapitation in this case, the Court would reach the same conclusion even if the presumption of constitutional validity attached to the State's decision concerning the appropriate drop length for Mr. Rupe.
8. Petitioner is entitled to have his writ of habeas corpus granted on Claim No. S.5.23.
 Tana Wood is substituted for James Blodgett pursuant to Fed.R.Civ.P. 25(d) (1).
 This total weight figure includes an eight-pound board strapped to Campbell's body at the time of execution.
 Ravani testified that the other test simulating Campbell's weight did not produce valid information.
 Although the Washington Field Instruction, as modified by Superintendent Wood, prescribes an exact length of rope to be used, in fact the unrebutted evidence is that the rope will stretch and the person hung will actually fall a distance greater than the length of the rope. Dr. Ravani's tests support this conclusion. In addition, Dr. Mason, an expert called by the State, testified that Mr. Campbell was hanged using a 5.0 foot rope but actually fell approximately 7.25 feet. The Court finds that there will be some additional drop beyond the 3 foot 6 inch rope length if Mr. Rupe is hanged and this will necessarily result in a greater force being applied to his neck.
 All of Dr. Ravani's tests are measured in pounds of force rather than in terms of foot-pounds of energy as used by Dr. Tencer. Ravani estimated the force in pounds using load cell data equipment.
 In the event Rupe actually dropped more than the 3 feet 6 inches, greater force would necessarily be applied. No estimates were provided by the witnesses concerning these additional forces.
 The testimony of Dr. Tencer that the spine could absorb approximately 80% of the energy force (800 foot-pounds compared to compared to the 1000 foot-pounds the total neck structure can absorb) is in direct contrast to Dr. Mason's testimony that the spine could absorb only 25% of the total force.
 It is difficult to quantify the amount of risk in a percentage figure. The Court finds that the risk is less than the anticipated 24% to 40% increase in force but more than a slight risk.
 By finding that a reduction of the drop length below 3 feet 6 inches would increase the risk of a less than instantaneous death, the Court is not suggesting that there is no available protocol at which Rupe could be hanged without risk of decapitation or prolonged pain or suffering. The Court is unable to determine, however, what that constitutionally acceptable protocol, if any, might be because the State has failed to present any reliable evidence on alternative drop lengths or protocols for hanging Mr. Rupe.
The State initially took the position that a drop length of five feet in accordance with the Washington Field Instruction would not result in decapitation. The State later retreated from that position, and it became necessary for the State to establish a protocol for hanging Mr. Rupe. Because of the unique nature of Rupe's hanging claim, which is itself based on a fluctuating variable (Rupe's weight), it was also necessary for the Court to set some finite parameters for resolving the issue. On May 9, 1994, the Court ordered the State to fully disclose by June 10, 1994, the length of the rope to be used for Rupe's hanging. After consulting with experts and conducting various tests, the State selected a drop length of 3.5 feet. The issue for the Court, therefore, was whether Rupe's hanging in accordance with the Washington Field Instruction, as modified by the Superintendent to accommodate Mr. Rupe's weight, would be constitutional. Based on all of the evidence presented, the Court concludes that such a hanging would violate the Eighth Amendment's prohibition on cruel and unusual punishment.
Petitioner has met his burden of showing that his hanging in accordance with the State's protocol would be unconstitutional. It is not for the Court to devise an appropriate protocol for hanging Mr. Rupe; that task belonged to the State.


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Walsworth’s toxic tort lawyers have extensive experience litigating cases involving every major toxin at issue in the last twenty years. We have represented a variety of clients, including manufacturers, distributors, retailers, material suppliers, property owners, end-users and public utilities, to name a few.
We have handled cases involving anywhere from one to tens of thousands of claimants, brought either as class actions, aggregate actions, or separately filed lawsuits spanning multiple jurisdictions. Cases we have handled include matters filed or removed to federal court, under diversity principles and under the federal Class Action Fairness Act (CAFA), as well as those placed in the federal multidistrict litigation program.
Our philosophy is to work closely with our clients to develop a defense strategy unique to each client and each case in order to obtain the client’s stated objectives in the most cost-effective way. Our case-ending approach to litigation has resulted in numerous early dismissals, successful rulings on motions for summary judgments, defense verdicts at trial and favorable settlements, all with as little impact to our clients’ bottom line as possible.
Not only are our toxic tort lawyers well-versed in all aspects of litigation discovery and pretrial fact investigation, but we have developed relationships with many of the premier defense experts in the field and have gained a comprehensive understanding of the complex science and medicine involved in defending these claims.
Our reputation as a defense firm with skilled litigators at the forefront of the latest developments in toxic tort litigation has also resulted in invitations to speak and share our knowledge with clients and at industry conferences.
Llamas v. Yosemite Waters – Successfully resolved a lead exposure case for a water company during trial, involving three minors claiming excessive lead exposure allegedly caused by the solder used in a water storage tank.
Garcia-Singer v. Does 1 thru 100, et al. – Demurrer granted for a spray paint and chemical product manufacturing company in a solvent exposure case, which led to a dismissal with prejudice. The court agreed that plaintiffs’ overbroad description of categories of paints was not in compliance with the California law of Bockrath v. Aldrich Chemical Co., et al. requiring plaintiffs to identify specific products. This case has resulted in further narrowing of product identification in complaints by plaintiffs’ firms, helping prevent fishing expeditions by plaintiffs in toxic tort cases.
Billing v. Akzo Nobel Paints LLC, et al. – Obtained summary adjudication of claims for punitive damages, breach of implied warranty, and negligence per se for a protective paint and coating manufacturing company in a case involving alleged benzene and other chemical exposure. The court agreed that the failure to identify a managing agent in response to written discovery was sufficient to defeat a claim for punitive damages. Further, the court agreed that insufficient and vague discovery responses prevented plaintiffs’ recovery for the causes of action of breach of implied warranties and negligence per se. The granting of this motion led to a nominal settlement by the client who was the last remaining defendant.
Johnson v. Estate of Albert Ross – Favorably settled a case after the claims were severely narrowed on summary adjudication in favor of a residential landlord defending personal injury claims brought by mother and child related to lead and mold exposure in their home.
Minor Defendant v. Landlord – Successfully settled a claim in favor of a residential landlord in a case involving an adolescent’s ingestion of paint, which allegedly raised his blood lead count to a dangerous level.
Sample v. Flint Ink Corporation, et al. – Obtained summary adjudication of a spouse’s claim, and the punitive damages claim, in a case involving alleged exposure to printing chemicals.
Vega, et al. v. 3M Company, et al. – Summary judgment granted for a protective paint and coating manufacturing company in a case involving claimed exposure to printing chemicals. After almost two years of litigation, and despite the fact that there were dozens of records of sales of our client’s product to decedent’s former employer, as well as numerous witnesses who identified our client’s product at decedent’s former employment, the Court agreed there was no evidence that the decedent was present when the cans of spray paint were used, and thus no evidence of any actual exposure.

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If you received notification that you were a class member in one of those cases, entitled (in alphabetical order) Bystrom v CVS, Connell v CVS, Sharobiem v CVS, Paksy v CVS and/or Uppal v CVS, we have now received final approval of our settlements in each of those five cases, with very slight changes to the terms requested. If you have any questions, please don’t hesitate to contact us at your convenience.
Our thanks to all of you who helped us achieve the goal of obtaining serious monetary recompense for all six regions of CVS in California over the past several years. We are grateful for your courtesy and assistance in assisting us toward our goals of helping CVS pharmacists throughout the state.
UPPAL - Last date to file a claim is January 4, 2016.
CONNELL, PAKSY & BYSTROM - Last day to file a claim is January 8, 2016.
SHAROBIEM - If you get a settlement notice packet IN ADDITION TO ANY PREVIOUS CLAIM FORMS on the Uppal case, or on the Connell, Paksy and/or Bystrom case, that is an ADDITIONAL SETTLEMENT SHARE that you are likely to be awarded for your work done in Region 60, i.e., that with which the Sharobiem case is concerned. The judge assigned to the Sharobiem case has allowed the Region 60 settlement to move forward without pharmacists having to submit claim forms. If you believe you worked 7 or more days in a row in Region 60 at any point from November 2009 through to the present, and you did not receive a Sharobiem settlement notice packet, please call KCC, the settlement administrator, at (866) 545-7415, or the Law Offices of Thomas W. Falvey at (818) 547-5200.
The deadline for filing a claim in Uppal has been extended to January 4, 2016. If you have any questions, please call KCC, the third party administrator handling the claim, at 866-497-4051.
The deadline for filing a claim in the cases of Connell, Paksy and Bystrom have been extended to January 8, 2016. If you have any questions, call KCC, the third party administrator handling the claim, at 866-472-6948.
FINALLY, IF YOU ARE SENDING A CLAIM BY MAIL, please send it certified mail, return receipt requested, and keep copies of the claim form and receipts in a safe place.
UPDATE - December 7, 2015 - Motion for Preliminary Approval Now Granted for all five cases brought on behalf of pharmacists who worked 7-day shifts in California, including Regions 54, 60, 65, 73 and 74.
We're pleased to announce that we were finally able to obtain approval of our Motion for Preliminary Approval of Settlement for the case of Sharobiem v CVS. However, note that as of this date, the settlement notice has not yet been mailed out for Sharobiem v. CVS (Region 60) class members. We expect that Region 60 pharmacists will receive their settlement notices by the very end of December.
These cases all deal with overtime for pharmacists who worked for CVS in California during the past several years on a 7th consecutive day of work, irrespective of whether those days arose over any two-week period (e.g., from Wednesday to Wednesday).
Should you believe you qualify to be a class member in the Sharobiem case (Region 60), please be on the lookout for your settlement notice. If you do not receive it by the beginning of January, please contact KCC, the third-party administrator that is coordinating the mailing of the settlement notice packets at that time (neither KCC nor we will have any specific information to give you until the class data is finalized and the settlement notices are mailed out). We will post a specific KCC phone number for the Sharobiem lawsuit over the course of the next few weeks.
In the meantime, please note that no claim forms will be required for Sharobiem v. CVS. If you want to participate in this settlement, all you need to do is make sure that the settlement notice reaches you at the proper mailing address. If the judge assigned to Sharobiem v. CVS gives his final approval of the settlement, checks will be mailed out to those same addresses on file. Based upon the Court's prescribed notice requirements, checks would not be mailed out before the end of April 2016 at the very earliest.
Because there are various dates by which class members in the other four cases (Connell, Paksy, Bystrom and Uppal) have to take action, there are different deadlines by which one will have to file a claim in order to participate, and we urge you to send in a claim form at once if you have not done. If you worked for CVS in Regions 54, 65, 73 or 74, you must file a claim form to participate.
For the cases of Connell, Paksy and Bystrom (Region 54, 65, and 74), the filing date has been extended to January 4th, 2016, and the contact number for KCC is 1-866-472-6948.
For the Uppal case (Region 73), the last date to file a claim is still December 18, 2016, and the contact number for KCC for these cases is 1-866-497-4051.
If you are a pharmacist who worked 7 days in a row during the past five years or so, and you're not sure in which region you worked, please contact KCC at any of the numbers listed above, and someone will be able to assist you.
You may also call our office if you have any questions about your employment with CVS. Perhaps we can assist you in that regard as well.
Whether you worked a 7-day shift, or simply worked 7 days in a row from time to time, you might be a participant in one of these cases.
UPDATE - October 15, 2015 - Motion for Preliminary Approval Filed for Regions 54, 65 and 74.
We're pleased to announce that we were finally able to file our Motion for Preliminary Approval of Settlement for those three cases, and, the court (the Honorable Elihu Berle, Judge) recently approved. These three cases all deal with overtime for pharmacists who worked for CVS in California during the past several years on a 7th consecutive day of work, irrespective of whether those days arose over any two-week period (e.g., from Wednesday to Wednesday).
PLEASE NOTE; WE ARE IN THE PROCESS OF SEEKING HEARINGS FOR APPROVAL IN THE TWO REMAINING REGIONS, involving 7-day pharmacies, entitled Sharobiem v. CVS (Region 60) and Uppal v CVS (Region 73).
If you are a pharmacist who worked 7 days in a row during the past five years or so, and you're not sure in which region you worked, please contact our office. Whether you worked a 7-day shift, or simply worked 7 days in a row from time to time, you might be a participant in one of these cases.
Likewise, if you ever worked at another store (floated), whether you had the title of floater or not, you may wish to contact our office to see if you worked in a region encompassed by one of our cases.
A conformed order regarding our MPA for these 7-day cases is attached.
We're pleased to announce that on September 24, 2013, the court (the Honorable John Wiley, Judge) granted Plaintiff's Motion for Summary Adjudication and ruled completely in Plaintiff's favor, and against CVS, in finding that pharmacists were to be paid overtime for work done on a 7th consecutive day of work, irrespective of whether those days arose over any two-week period (e.g., from Wednesday to Wednesday), and further ruled that in requiring its pharmacists to work 7 days in a row, CVS was breaking the law. Please see a copy of the court's MSA Ruling, attached.
Since that time, our offices have filed four more cases involving 7-day pharmacies, entitled Paksy v. CVS (for CVS pharmacists who worked in Region 54), Sharobiem v. CVS (Region 60), Connell v. CVS (Region 65) and Bystrom v. CVS (Region 74) . The case of Meneses v. CVS relates to those pharmacists who were employed in Region 72.
If you are a pharmacist who worked 7 days in a row during the past four years or so, and you're not sure in which region you worked, please contact our office. Whether you worked a 7-day shift, or simply worked 7 days in a row from time to time, you might be a participant in one of these cases.
We look forward to hearing from you with any information, questions, comments or suggestions. Thanks very much.
As some of you know, on August 12, 2012, we filed a class action on behalf of those pharmacists who worked 7-day shifts for CVS in the State of California who worked in CVS’s Region 72 (only) for unpaid wages.
Because of the nature of how CVS sets up its regions, and because CVS has not yet provided a list of those individuals who qualify to be in that class action, we do not know the names of all individuals who worked in that capacity. Thus if you were employed as a pharmacist in California for CVS during the past five years or so, and worked 7-day shifts (often called “Graveyard” shifts), we would appreciate your calling us so we could tell you the facts of this case.
Likewise, if you worked 7-day shifts, but do not know in which Region you worked, or if you worked in multiple regions, please call us if you have any questions, or if you wish to find out if you might be part of this case.
Are/Were you a 'Floater' or work a 'floated schedule'?

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Home / CJEU / CJEU copyright cases / empirical legal studies / The CJEU on copyright: clueless or activist? Or both?
The CJEU on copyright: clueless or activist? Or both?
The increasing importance of the CJEU's jurisprudence for the development of copyright doctrine and policy in Europe is hardly a secret (see, e.g., Eleonora Rosati's talk "A decade of random copyright (reform) in Europe" at the recent JIPLP conference on 26 November 2015). The reactions to it have been mixed: some accuse the CJEU of lacking domain expertise, copyright specific reasoning, and predictability, and pursuing an activist, harmonising agenda. Some empirical analysis might shed some light on these rather harsh claims.
Turns out that three academics, Marcella Favale, Martin Kretschmer and Paul C. Torremans, have done exactly that in a paper forthcoming in the Modern Law Journal. Analysing all copyright decisions of the CJEU from the first explicit copyright reference in 1992 (Phil Collins) to the judgment in Svensson delivered on 13 February 2014, they conclude that the CJEU's judges indeed lack domain expertise in copyright law. However, the Court has developed a mechanism for enabling judicial learning through the systematic assignment of cases to certain Judges and AGs (namely Judge Malenowsky for copyright cases, and Judge Lenaertz for database right cases). The problem with this approach is that "there appears to be no procedure for passing on this expertise. The development of subject specific jurisprudence may be set back periodically, as members join the Court as non-experts, and leave the Court with their acquired expertise."
In a more ambitious second part of the analysis, the authors sought to examine whether the Court pursues an "activist agenda". For this, they perform a content analysis of all 40 copyright cases decided until Svensson, broadly dividing the arguments made into semantic, systematic and teleological arguments. They argue on theoretical grounds that a prevalence of teleological arguments is evidence for an activist agenda. Overall, the analysis reveals a prevalence of semantic and teleological approaches over contextual (systematic) approaches, more evident in the Judgments than in the Opinions.
[...] the analysis of our data reveals quite a different picture. Just over half of the examined judgments called to interpret the rights of the owner gave a broad interpretation, and only little more than half of the rulings involving copyright limits displayed a narrow construct. In essence, the analysis suggests that the high protection of the copyright owner, or the narrow construction of copyright limits, do not guide the copyright jurisprudence of the Court as one might have expected.
The comparison between the rulings of the Court where Judge Malenovský is the Reporting Judge and the rulings where the Reporting Judge is another Court Member offers some interesting insights. The large number of copyright cases reported by Judge Malenovský suggests the acquisition of subject-specific experience in these matters. The content analysis of Malenovský decisions reveals the use of the teleological argument of the ‘high level of protection for the copyright holders’ required by the InfoSoc directive, also in cases (six per cent) whose outcome is not favourable to the rights holder; whereas all the other judges use this argument only in cases whose outcome favours the rights holder.
Also, the argument of the ‘fair balance of rights’, which is used by other judges solely to rule against the copyright holders, is employed by Malenovský both in cases whose outcome favours and disfavours the right holder. While the small size of the sample suggests caution in interpreting these data, Malenovský appears to see the balance between the rights and interests of copyright holders and users of protected subject matter as a more central issue than other judges. He also uses a greater range of copyright specific arguments rather than focussing on harmonization.
This pattern is not consistent with an agenda of upward harmonisation. So the short answer to the question posed in the title of this post might be "clueless, but working on it, and not activist". Go read the whole paper, it is really interesting.

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McClain v. Lufkin Industries, Inc.
McClain v. Lufkin Industries, Inc. , is the oldest case on Goldstein Demchak’s docket but is still being actively litigated. The case is a race discrimination class action brought by African American hourly and salaried employees of Lufkin Industries, Inc., an East Texas oilfield equipment manufacturing company. Plaintiffs alleged that Lufkin’s subjective employment practices had an unlawful disparate impact on African Americans in initial job assignments and promotions. The district court certified the class in 1999. McClain v. Lufkin Industries, Inc. , 187 F.R.D. 267 (E.D. Tex., 1999).
In 2005, after a bench trial, the district court entered a judgment which, in addition to finding Lufkin liable for class wide discrimination, found that the class was entitled to back pay in the amount of $3.4 million, ordered Lufkin to cease its discriminatory practices and adopt practices to ensure that African Americans are not discriminated against in initial job assignments, training and promotions, and awarded plaintiffs’ attorneys’ fees, costs and expenses. Plaintiffs appealed the limited injunctive remedies, the dismissal of plaintiffs’ disparate treatment claims, and reductions in attorneys’ fees. Lufkin cross-appealed.
On February 29, 2008, in a unanimous decision, a three judge panel of the Fifth Circuit Court of Appeals affirmed the district court’s finding that Lufkin’s subjective decision making had an unlawful disparate impact on promotions of Lufkin’s African American hourly and salaried employees. See McClain v. Lufkin Industries, Inc ., 519 F.3d 264 (5th Cir. 2008). The panel also reversed the district court’s injunctive relief order agreeing with plaintiffs that it was not specific enough to address the discriminatory practices found by the district court. The court also affirmed the district court’s formula approach to backpay relief where, as the district court found, it would be impossible to identify which class members were entitled to specific promotions given the passage of time and the myriad decisions at issue. The court, however reversed the district court’s finding that named plaintiff Sylvester McClain’s EEOC charge was sufficient to support plaintiffs’ initial assignment claim. It therefore remanded the backpay order to the district court to be recalculated in light of the elimination of the initial assignment claim. Finally, the court of appeals remanded the district court’s attorneys’ fees award for further factual analysis and findings consistent with Johnson v. Georgia Highway Express, Inc. , 488 F.2d 714, 717–719 (5th Cir. 1974).
Following remand proceedings, the district entered a final Judgment for plaintiffs The Judgment grants extensive injunctive relief, including requiring Lufkin to implement objective and non-discretionary promotional procedures and many other specific measures of affirmative relief; appoints an Ombudsperson for complaints, and authorizes continuing monitoring to assure compliance. McClain v. Lufkin Industries, Inc. , 2010 WL 455351, (E.D. Tex., Jan. 15, 2010). The Judgment also awards $5.5 million in back pay and interest to the class of over 1,000 African American workers, plus attorneys’ fees and costs. The court also awarded plaintiffs’ $3.6 million in attorneys’ fees and costs, but calculated Goldstein Demchak’s hourly rates at lower local rates rather than their customary billing rates. Plaintiffs appealed the fee order and Lufkin cross-appealed from a portion of the back pay award.
On August 8, 2011, a unanimous panel of the Fifth Circuit affirmed the district court’s order on back pay to the class and vacated the district court’s order regarding the hourly rates awarded to Goldstein Demchak finding that, based upon undisputed evidence in the record, the starting point for determining a reasonable fee for Goldstein Demchak is its California billing rates and not the local rates for attorneys in Lufkin, Texas where the case was filed or Beaumont where the case was tried. McClain v. Lufkin Industries, Inc. , 649 F.3d 374 (5th Cir. 2011). Lufkin subsequently sought rehearing by the Fifth Circuit panel on that part of its order regarding the class back pay. On September 6, 2011, the Fifth Circuit denied Lufkin’s petition for rehearing. Lufkin then filed a petition for certiorari with the U.S. Supreme Court, which Plaintiffs will oppose.
On November 14, 2011, the Supreme Court denied a petition for certiorari that was filed by the defendant in McClain v. Lufkin Industries, Inc. , a 14 year old race discrimination class action case that Goldstein Demchak has been litigating with Nagocdoches, Texas attorney Timothy B. Garrigan in federal court in Lufkin, Texas. The denial of Lufkin’s petition means that the approximately $5.5 million in back pay and pre-judgment interest awarded by the district court after trial and affirmed on appeal now may be distributed to the class.


The parties, who lived together as a romantic couple for approximately five (5) years, commenced an action in equity seeking partition of jointly owned property and credit for monies expended during the time they lived together.
1. The protections afforded to married couples are not applicable to unmarried couples.
2. The existence of a cohabitation arrangement does not provide one (1) cohabitant with an automatic interest in property acquired by the other cohabitant.
3. A presumption exists that any services provided by one (1) cohabitant to another are gratuitous, thus rendering it very difficult for one (1) member of the couple to recover credit or restitution for those services.
4. Failing an agreement of the parties, joint property of unmarried cohabitants generally is considered to be owned as tenants in common.
5. A proceeding in partition is the mechanism in which to divide a tenancy in common.
6. The process for partition of real property is governed by the Rules of Civil Procedure.
7. Receipt by each co-owner of the proportional value of jointly-owned property to which he or she is entitled is important in a partition action.
8. The parties contributed equally to the acquisition of property where Defendant paid Plaintiff $350.00 per week even though Plaintiff was the party who wrote checks to pay for contested assets such that each party is entitled to fifty percent (50%) of the value the contested assets.
9. Neither party is entitled to requested credits for monies expended during the time that they lived together in a partition action, as any unequal contribution is considered to be gratuitous.
L.C.C.C.P. No. 2016-01342, Opinion by Bradford H. Charles, Judge, April 19, 2018.
(4) A trailer designed to transport motorcycles.
2. To the extent that either party desires “credits” or equitable restitution with respect to any of the disputed items, those claims are denied.
(1) Within forty-five (45) days from today’s date, the parties are to agree upon a value for each of the disputed items. Failing an agreement, counsel are to select an appraiser(s) to determine a present value of each of the items in dispute. If the parties are not able to agree on an appraiser(s), a Motion can be filed and the Court will appoint one.
(2) When the appraisals for all items are completed, both parties shall be afforded thirty (30) days to decide whether he/she wishes to retain any of the items in dispute.
(3) If both parties desire to possess an item, it shall be sold at the price designated by the appraisal and the proceeds shall be divided equally.
(4) If neither party wishes an item, it is to be sold at the price designated by the appraisal and the proceeds are to be divided equally.
(5) If one party desires an item, that party shall pay to the other a sum representing fifty percent (50%) of the appraised value of the item he/she wishes to retain.
4. Both parties shall sign all documents necessary to effectuate any of the appraisals, sales or other transfers of items as outlined above.
Romantic cohabitation has become a common relational arrangement. However, the legal differences between marriage and romantic cohabitation remain as wide as the Grand Canyon. Volumes of statutes and legal precedent exist to govern how the financial partnership of spouses must be unwound. Relatively little legal precedent exists with respect to how the financial entanglements of a cohabitating but unmarried couple should be separated. This case involves a couple that lived together for roughly five years. During their time of cohabitation, the couple acquired assets and paid expenses together. Today, we are required to decide how these financial entanglements should be separated.
On February 15, 2018, this Court conducted a Bench Trial between Melissa Ann Lighty (hereafter MELISSA) and Dennis Emerson Kell (hereafter DENNIS). We learned that MELISSA and DENNIS began cohabitating as a romantic couple in July of 2011. They eventually separated in February of 2016.
On September 8, 2016, MELISSA filed a Complaint in Equity Seeking Partition of Property. Her complaint focused upon a 2007 Mini Cooper vehicle, a 2004 Prowler camper, and a deluxe time share at Tribal Resorts of Gettysburg. All of these items were alleged to have been acquired jointly during the parties’ period of cohabitation. In addition, MELISSA sought credits for monies she expended during the time of cohabitation.
1. Melissa Lighty (hereafter MELISSA) and Dennis Kell (hereafter DENNIS) began cohabitating as a romantic couple in July of 2011. DENNIS and MELISSA eventually separated in February of 2016.
2. DENNIS and MELISSA lived together as a couple at a home in Palmyra that was owned by MELISSA. In no point in time did MELISSA ever place DENNIS’ name on the deed of said home.
3. During the period of their cohabitation, DENNIS and MELISSA shared responsibilities relating to their residence. Both MELISSA and DENNIS performed household chores needed to maintain the property.
4. At all times during their co-habitation, MELISSA and DENNIS both enjoyed income that was roughly equivalent. For a time, both DENNIS and MELISSA worked as drivers for UPS. Later during their relationship, MELISSA received unemployment compensation, private disability payments and Social Security disability payments. Neither MELISSA nor DENNIS was totally financially dependent upon the other during the course of their relationship.
5. Beginning on the date of their cohabitation, DENNIS paid to MELISSA the sum of $350.00 per week. This amount was more than sufficient to pay the mortgage, taxes and insurance on the residence of approximately $760.00 per month.
6. At times, DENNIS would also pay for items jointly needed by the couple and at times DENNIS would pay expenses jointly incurred by the couple. However, the overwhelming majority of funds provided by DENNIS to MELISSA were encompassed in his $350.00 per week payment.
7. Until the very end of their period of cohabitation, DENNIS and MELISSA shared their respective assets, living responsibilities and lives with one another in a manner that was equitable to both MELISSA and DENNIS.
8. Shortly after MELISSA and DENNIS began to cohabitate, the couple discussed the purchase of a camper to replace one that DENNIS possessed with his former wife. DENNIS and MELISSA agreed to purchase a 2004 Prowler Regal camper from Grumbine’s RV Center in return for payment of $19,995.00. To acquire this camper, DENNIS traded in a 2007 Sierra camper that he had acquired in the divorce from his first wife. The parties were afforded a trade-in allowance of $20,151.50 for the Sierra camper that DENNIS traded in for the Prowler.
9. At the time that the Sierra camper was traded to Grumbine’s RV Center, a lien existed on it. MELISSA paid $19,989.70 to satisfy this lien. This amount was obtained by MELISSA from a line of credit that she possessed with Metro Bank.
10. During the course of their relationship, the parties decided to obtain a lot at a camp ground that they could regularly visit with the Prowler camper. They agreed to purchase a time-share with Travel Resorts of Gettysburg LLC. The parties paid $5,394.00 for this time-share.
11. MELISSA charged the time-share amount on a Capital One credit card that was in her name.
12. In June of 2015, the parties decided to purchase a 2007 Mini Cooper automobile that was located by DENNIS online. On June 6, 2015, MELISSA entered into an agreement with Mark Erway and Diana Rynders of Perkiomenville, PA. Neither MELISSA nor DENNIS were acquainted with Mr Erway and Ms. Rynders and the purchase of the vehicle was a completely arms-length transaction.
13. A bill of sale was completed on June 6, 2015 revealing purchase price consideration for the vehicle of $2,500.00. Both MELISSA and DENNIS signed the bill of sale reflecting said purchase price.
14. MELISSA testified that the purchase price for the Mini Cooper was actually $7,800.00. She stated that the parties fraudulently declared a lesser amount in order to avoid taxes. In support of her testimony, MELISSA presented a bank statement from Metro Bank revealing that $7,800.00 was debited to the line of credit account on June 8, 2015.
(a) The transaction regarding the Mini Cooper was an arms-length transaction between a buyer and a seller who had no prior relationship with one another. Fraudulently falsifying documents is more difficult in an arm-length transaction than it is in a transaction between people who know one another.
(b) MELISSA signed the bill of sale reflecting the purchase price of $2,500.00. By signing that document, MELISSA is estopped from asserting an amount inconsistent with the price set forth in the signed documents.
(c) The date of the bill of sale was June 6, 2015. A notary in Montgomery County verified this date. The so-called supporting documentation presented by MELISSA in support of her testimony that $7,500.00 exchanged hands reflects a cash advance on June 8, 2015. This cash advance was taken out two days after the Mini Cooper vehicle was purchased.
(d) As it relates to the issue of the Mini Cooper vehicle, we find the testimony of DENNIS about work he performed to repair the engine to be credible. Said testimony explains why the Mini Cooper vehicle would have been purchased for less than Blue Book value.
16. In April of 2014, the parties purchased a trailer designed to transport motorcycles. This trailer was purchased for $5,395.00. MELISSA paid for the trailer using an advance from her Metro bank line of credit. The trailer was then placed into DENNIS’ name.
17. Based upon the totality of evidence presented, we conclude that neither the Prowler camper, the time-share purchase, the Mini Cooper purchase nor the trailer purchase represented gifts from one party to another. We conclude that all of the purchases outlined above were joint purchases by MELISSA and DENNIS that were designed to benefit both DENNIS and MELISSA.
18. Although MELISSA was primarily responsible for paying her Metro bank line of credit and her Capital One credit card obligation, she had available to her funds that were paid on a weekly basis by DENNIS. These payments by DENNIS of $350.00 per week totaled in excess of $18,000.00 per year. This amount far exceeded the amount needed by MELISSA to pay the mortgage, taxes and insurance on the parties’ joint residence. We therefore conclude that DENNIS contributed indirectly to the repayment of the Metro Bank line of credit and the Capital One credit card amount.
19. When DENNIS and MELISSA separated in 2016, DENNIS left the residence in Palmyra owned by MELISSA. At a date and time that was mutually agreed upon by the parties, DENNIS returned to the Palmyra residence in order to retrieve furniture and personal belongings.
20. Following the retrieval of clothing and personal belongings, DENNIS submitted a list of items that he alleged were missing. Those items included a bedroom suite, Harley-Davidson memorabilia, tools, a tool box, vehicle equipment, and two television sets.
21. After the purchase of the camper, MELISSA acquired generators for use with the camper. Those generators were placed inside the camper. At some point following the parties’ separation, the location of the generators became unknown.
22. Other individuals could have testified and corroborated DENNIS’ claim about the missing items. These other individuals were friends of DENNIS. DENNIS failed to present these individuals as witnesses. We find the omission of corroborating testimony about the personal property items to be glaring.
23. Whenever a couple co-mingles their lives together, the co-mingling of personal property also occurs. Inevitably some of these items of personal property that are brought into a relationship are lost or need to be replaced. It is impossible for participants of any long-term relationship to retrieve all of the items he/she brought into the relationship when it ends.
24. We conclude that the parties endeavored to equitably divide their personal property after separation occurred. In terms of personal property, we conclude that nothing of substance belonging to DENNIS remains with MELISSA and nothing of substance belonging to MELISSA remains with DENNIS.
Unfortunately, MELISSA and DENNIS were not able to amicably resolve their dispute following receipt of our Findings of Fact. Instead, both MELISSA and DENNIS filed post-trial briefs setting forth their positions as to what should occur. We issue this Opinion in order to resolve the parties’ dispute.
One widely-cited legal commentator has bluntly declared that “Pennsylvania favors marriages over non-marital relationships, and our pro-marriage society tends, whenever possible, to disadvantage unmarried cohabitants.” 17 West’s Pennsylvania Practice, Family Law § 6:1 (7 Ed. 2017). Because of this dynamic, the protections afforded to married litigants by the Divorce Code are not applicable to unmarried cohabitants. Banco v. Malanecki, 435 A.2d 194 (Pa.Super. 1981). Specifically, the existence of a cohabitation arrangement does not provide one cohabitant with an automatic interest in property accumulated by the other cohabitant. See, e.g. 24 A Standard Pennsylvania Practice 2d § 126:512. 1 Moreover, a presumption exists that any services provided by one cohabitant to another are gratuitous, thus rendering it very difficult for one member of the couple to recover credits or restitution for those services. See, Mitchell v. Moore, 729 A.2d 1200 (Pa.Super. 1999).
The right of Partition is premised upon fairness: No common owner of property should be able to deprive a co-tenant of the benefits of ownership. Thus, it has been recognized literally for over a century that the right to obtain Partition is a by-product of ownership. See, Byers v. Byers, 183 Pa. 509, 38 A. 1027 (1898).
“Partition of real property is governed by the Rules of Civil Procedure. See, Pa.R.C.P. 1551… ‘Partition is a possessory action; its purpose and effect being to give to each of a number of joint owners the possession [to which] he is entitled…of his share in severalty. It is an adversary action and its proceedings are compulsory. The rule is that the Right to Partition is an incident of a tenancy in common, and an absolute right.’ Bernstein v. Sherman, 902 A.2d 1276, 1278 (Pa.Super. 2006) (Citations omitted).
In a Partition Action, property can be divided in several ways. When division can be accomplished “without prejudice to or spoiling the whole”, it can be divided in kind and in proportion to the value of the interest of the parties. Pa.R.C.P. 1560(a). The rules also provide for sale of property, which can be confined to the parties themselves (Pa.R.C.P. 1566) or can be expanded to include third persons. (Pa.R.C.P. 1562). What is important is that each co-owner receive the proportional value of the jointly-owned property to which he/she is entitled. See Bernstein v. Sherman, supra.
Based upon the Findings of Fact outlined above, we conclude that both parties are equal fifty percent tenants in common with respect to each of the items of property outlined above. Thus, one-half of the value of all of the above assets belongs to MELISSA and one-half of the value belongs to DENNIS.
To the extent that both parties have requested “credits” or other accommodation based upon a purported difference in how each contributed to acquiring the assets, we reject such arguments. Partition of property between romantic cohabitants is not akin to equitable distribution in divorce. In the latter situation, a multitude of equitable factors can be considered in assessing how and in what percentage assets are to be divided. Partition of a tenancy in common does not permit such an analysis.
Even if we were to have found that either DENNIS or MELISSA contributed more than his/her fair share to acquire a particular asset, we would be required to find that the unequal contribution was “gratuitous” as defined in Mitchell v. Moore, supra. However, under the Facts of this case, we determined that both parties contributed fairly to their financial consociation. While MELISSA may have been primarily responsible for writing checks to pay for the contested assets, we cannot ignore the fact that DENNIS paid MELISSA $350.00 per week. This totaled $18,000.00 per year and represented monies that were available for MELISSA to pay the amounts she expended for the contested assets.
In the opinion of this Court, MELISSA and DENNIS were financial as well as romantic partners. We believe that the arrangement they made between themselves was an equitable one. Nothing offends us about the notion that both MELISSA and DENNIS should equally share in the value of the four items at issue in this case.
(1) Within forty-five (45) days from today’s date, the parties are to agree upon a value for the disputed items. Failing an agreement, counsel are to hire an appraiser(s) to determine a present value of each of the items in dispute. If the parties are not able to agree on an appraiser(s), a Motion can be filed and the Court will appoint one.
(6) Both parties shall sign all documents necessary to effectuate any of the appraisals, sales or other transfers of items as outlined above.
An Order to effectuate the above will be entered today’s date.
1 Because of the number of cohabitating couples, some legal scholars have proffered a suggestion that a “new legal status” be created for such couples. See, e.g. Property as Supporting Rights of Unmarried Cohabitants: A Proposal for Creating a New Legal Status, 44 Louisiana Law Review 1677 (July 1984). Thus far, most states, including Pennsylvania, have resisted such efforts.