August 2011

Gravel & Shea Prevails In Supreme Court Appeal Over Wal-Mart Development

Stewart McConaughy and Ross Feldmann successfully defended a major court decision regarding the development of a Wal-Mart store in St. Albans, Vermont, in an appeal before the Vermont Supreme Court. The Supreme Court affirmed the decision by the Vermont Environmental Court regarding local and state permits for this development following an oral argument in March 2011. Project opponents who brought the appeal made arguments regarding the alleged bias of a local zoning board member and the legal effect of a prior application for a Wal-Mart at the site of this development. The Court rejected all of these arguments. With this decision – the last in a long line of legal proceedings – Gravel & Shea’s client now has a green light to proceed with this development.

Bradbury v. Otis and Fletcher Allen Health Care

Bob Hemley and Norman Williams recently completed the settlement of an action against Otis Elevator and Fletcher Allen Health Care which arose from a 2007 incident in which Eleanor Bradbury was knocked down by closing elevator doors at the Ambulatory Care Center. Mrs. Bradbury, who was 82 years old at the time of the incident, has been largely confined to a wheelchair ever since. On behalf of Mrs. Bradbury, Mr. Hemley and Mr. Williams argued that the Otis elevator was deficient because the mechanism which is intended to retract the closing doors is ineffective when a slow moving patient reaches the outer door of the elevator, but not the electric eye beams which sit interior to the outer doors. The elevators are equipped with a 3-D feature which Otis advertises as ideal for health care settings, but that feature is said to not function properly on the type of elevators at Fletcher Allen, and was never activated. The terms of the settlement are confidential.

IMS v. State of Vermont

Bob Hemley and Matt Byrne were members of the legal team that successfully challenged the consitutionality of a Vermont statute which made it unlawful for so-called “data miners” such as IMS to acquire and sell to pharmaceutical companies information about which drugs are being prescribed by particular physicians. The State maintained that the law was valid because it served a legitimate state purpose, namely a reduction in health care costs, and that the sale of the information, which identifies physicians but not patients, violates the privacy interests of the physicians. The case was tried before Judge J. Garvan Murtha in the United States District Court. Judge Murtha determined that the law was constitutional. The Court of Appeals affirmed Judge Murtha’s decision, but the United States Supreme Court disagreed. In a 6-3 decision, the Supreme Court reversed the Court of Appeals and Judge Murtha and declared the law to be unconstitutional. IMS and its co-plaintiffs are seeking to recover their legal fees from the state.

Osier v. City of Burlington, Burlington Telecom, and Jonathan Leopold

Norman Williams and Bob Hemley are representing two taxpayers of the City of Burlington in an effort to recover nearly $17 million which was improperly transferred by the City of Burlington general fund to support Burlington Telecom, an “enterprise” of the City. Burlington Telecom is regulated by the State of Vermont Public Service Board. As a condition of its license, or certificate of public good, Burlington Telecom was not permitted to operate in a manner that would put the City taxpayers at financial risk. This included a restriction on the City making funds available which were not repaid within 60 days, and as to which Burlington Telecom did not have adequate cash on hand or anticipated receivables to repay. The City has acknowledged, and the Public Service Board has found that the transfer of $17 million over multiple years was knowingly made in violation of these conditions. Jonathan Leopold, the Chief Administrative Officer at the time of the most recent transfers, has acknowledged that he was aware of the violation and authorized the transfers anyway. In addition, Mr. Leopold has acknowledged that against the advice of the City attorneys he concealed the violations from the Public Service Board. Mr. Williams and Mr. Hemley have moved to hold the City in contempt of an order of the Chittenden Civil Division prohibiting additional transfers, and have moved for summary judgment. Those motions are pending.

Entergy v. State of Vermont

Bob Hemley and Matt Byrne are members of the legal team which has brought an action against the State of Vermont seeking to enjoin actions which would result in the closure of the Vermont Yankee nuclear power plant in Vernon, Vermont. Entergy has asserted that legislation by which Vermont has assumed authority to regulate and license the plant is preempted by federal law. The case is scheduled to go to trial before Judge J. Garvan Murtha in the United States District Court in September of 2011.

Reglan Cases

Bob Hemley and Ross Feldmann are members of the legal team defending several cases in Vermont brought by patients who were administered Reglan, the generic name for which is metoclopromide. On behalf of Pfizer and Wyeth, the manufacturers of the branded Reglan, Mr. Hemley and Mr. Feldmann are defending these product liability cases on a number of bases. The cases are scheduled to go to trial before Judge William Sessions in the United States District Court in late 2011 or early 2012.

Mediation Services

Bob Hemley has continued to expand his mediation practice, offering his services to attorneys throughout the state in both federal and state court actions. Calling on his more than 40 years of experience as a trial attorney, Mr. Hemley has been successful in bringing closure to most of the cases in which he has been involved.

International Academy of Trial Lawyers

Bob O’Neill was inducted into the International Academy of Trial Lawyers at the annual meeting in New York City in April 2011. The International Academy is a prestigious group with a membership limited to only the most successful and experienced trial attorneys in each state. There are only three IATL fellows in Vermont. Mr. O’Neill joins his partner Bob Hemley, who is one of the other fellows. Click here for the Press Release.