Spring 2006 appellate brief assignment west v. mercy hospital (plaintiff)


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Spring 2006 appellate brief assignment west v. mercy hospital (plaintiff)

  1. 1. MemorandumTo: Associates in LARW Sections A3 and B2 (Last names beginning with M-Z)From: Professor GoeringDate: February 3, 2006Re: Appellate Brief Assignment: West v. Mercy Hospital______________________________________________________________________________ We have been retained to assist with the appellate brief to be filed in the United StatesCourt of Appeals for the Second Circuit. Our client is Jerry West. Mercy Hospital of New Yorkis the defendant in a lawsuit our client filed as the executor of the estate of Bryan Kessler, hislong-time partner. He has filed a medical malpractice and personal injury action on behalf ofKessler’s estate. Our concern, however, pertains to his claim for wrongful death, filed on hisown behalf. The decedent and West lived together for more than eleven years. After Massachusettsrecognized same-sex marriages, West and Kessler went to Massachusetts to be married. Thatwas in May 2004. Not long after, Kessler was injured in a crazy hit-and-run accident indowntown New York City. His injuries were not life-threatening, but after a second round ofsurgery to repair his fractured leg, he died unexpectedly. The exact cause is still underinvestigation, but the autopsy results suggest it was an embolism. The attached file contains all the documents we need for now. Note that we do not havea copy of the original complaint in the file, but you should not need it. Most of the allegations inthe complaint pertain to the medical malpractice claim, not the wrongful death claim. MercyHospital sought partial dismissal of the wrongful death claim on the grounds that a same-sexmarriage cannot qualify West to sue for wrongful death under the New York statutes. Our clientfiled a long memorandum in opposition, and he also filed a cross-motion for partial summaryjudgment on the wrongful death claim. He filed a lengthy affidavit in support, which is in thefile. The district court ruled for our client, but Mercy Hospital has filed a Notice of Appeal. Wehave been instructed to prepare the appellee’s brief for Jerry West. Obviously, he is happy withthe district court’s ruling, and he wants us to be sure that decision is affirmed on appeal. You will note from the file that this is a diversity case filed in federal district court, so thedefendant is appealing to the Second Circuit. Be sure to check the local rules for filing appellatebriefs. Also, remember that Fed. R. App. P. 28 and 32 govern the filing of briefs in the circuitcourts, so you must carefully comply with those rules, too. Please draft the brief for our client. I need your draft no later than 5:00 p.m. on Monday,February 27, so we can review it together and make necessary revisions before the filingdeadline in early April. Your draft should be no longer than 15 double-spaced pages, excluding
  2. 2. the Cover Page, Table of Contents, Table of Authorities, and Certificate of Service. In otherwords, only narrative pages count against the 15-page limit. Please prepare a research plan showing how you intend to proceed. I want to review yourresearch plan no later than February 10, a week from today, so I expect you to deliver a copy ofyour plan to my mailbox in Room 203 no later than 5:00 on that date. When you turn in yourdraft brief, you will be expected to submit hardcopies of all your research materials, filed in aseparate notebook. Thank you for your assistance. You may discuss the matter and your research with otherassociates in our firm only (LARW Sections A3 and B2), but please do not show your work toanyone but me or my junior partners, Roarke Gordon and Jody Bebermeier. The Honor Codeapplies to this assignment and all others in this course. If you have questions, please refer to theHonor Code or ask me for clarification. The Honor Code is posted on our firm’s website foryour reference. Feel free to ask me or either one of my TA’s if you have any questions aboutthis assignment.