Fall 2010 open memo assignment no doubt v. activision right of publicity cali...
Spring 2006 appellate brief assignment west v. mercy hospital (defendant)
1. Memorandum
To: Associates in LARW Sections A3 and B2 (Last names beginning with A-L)
From: Professor Goering
Date: February 3, 2006
Re: Appellate Brief Assignment: West v. Mercy Hospital
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We have been retained to assist with the appellate brief to be filed in the United States
Court of Appeals for the Second Circuit. Our client is Mercy Hospital of New York. Mercy is
the defendant in a lawsuit filed by Jerry West as the executor of the estate of Bryan Kessler, his
long-time partner. He has filed a medical malpractice and personal injury action on behalf of
Kessler’s estate. Our concern, however, pertains to his claim, filed on his own behalf, for
wrongful death.
The decedent and West lived together for more than eleven years. After Massachusetts
recognized same-sex marriages, West and Kessler went to Massachusetts to be married. That
was in May 2004. Not long after, Kessler was injured in a crazy hit-and-run accident in
downtown New York City. His injuries were not life-threatening, but after a second round of
surgery to repair his fractured leg, he died unexpectedly. The exact cause is still under
investigation, 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 have
a copy of the original complaint in the file, but you should not need it. Most of the allegations in
the complaint pertain to the medical malpractice claim, not the wrongful death claim. Our client
sought partial dismissal of the wrongful death claim on the grounds that a same-sex marriage
cannot qualify West to sue for wrongful death under the New York statutes. The plaintiff filed a
long memorandum in opposition, and he also filed a cross-motion for partial summary judgment
on the wrongful death claim. He filed a lengthy affidavit in support, which is in the file. The
district court ruled for West. We have been instructed to prepare the appellant’s brief for Mercy
Hospital.
You will note from the file that this is a diversity case filed in federal district court, so the
appeal will be taken to the Second Circuit. Be sure to check the local rules for filing appellate
briefs. Also, remember that Fed. R. App. P. 28 and 32 govern the filing of briefs in the circuit
courts, 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 filing
deadline in early April. Your draft should be no longer than 15 double-spaced pages, excluding
the Cover Page, Table of Contents, Table of Authorities, and Certificate of Service. In other
words, only narrative pages count against the 15-page limit.
2. Please prepare a research plan showing how you intend to proceed. I want to review your
research plan no later than February 10, a week from today, so I expect you to deliver a copy of
your plan to my mailbox in Room 203 no later than 5:00 on that date. When you turn in your
draft brief, you will be expected to submit hardcopies of all your research materials, filed in a
separate notebook.
Thank you for your assistance. Please let me know if you have any questions. You may
discuss the matter and your research with other associates in our firm only (LARW Sections A3
and B2), but please do not show your work to anyone but me or my junior partners, Roarke
Gordon and Jody Bebermeier. The Honor Code applies to this assignment and all others in this
course. If you have questions, please refer to the Honor Code or ask me for clarification. The
Honor Code is posted on our firm’s website for your reference. Feel free to ask me or either one
of my TA’s if you have any questions.