HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/DEFINE.TXT

Text File | 1994-01-14 | 12KB | 251 lines

Legal terms used in cases or in statutes. We provide very
simplified definitions of  terms used within case law, with a
brief explanation of the context of the terms.

Cause of action- used as in "did the complaint state a cause of
action." This is whether the pleadings in the lawsuit are
sufficient, if proven, to prove a wrong that the courts may
remedy. This is a higher standard than federal courts, which use
the test "of failure to state a claim for which relief may be
granted." Cause of action also refers to the reason that a
plaintiff is entitled to come to court. Thus, you may read a
court opinion stating, "This is a cause of action for breach of
contract."

Certification of a question- Federal courts may request that if
they are trying a case in which state law will decide an issue
that the state court tell the federal court what the state law
means. This process is referred to as certification or "a
certified question." Please note that the state courts do not
have to answer the question.

Discovery- In most civil lawsuits, each party is entitled to
discovery from the other party. Discovery is the process by which
each party must reveal [and usually does its best NOT to reveal]
information needed to prepare the case. Interrogatories are
written questions which have to be answered under oath.
Depositions are sworn statements. Requests to produce [shortened
to "production"] are demands to inspect documents or tangible
objects. Many cases in this program are battles over discovery.
Either party (or if a third party is subpoenaed, they may) object
to discovery because the information is privileged or immaterial
to the lawsuit. Due to HIV confidentiality rules, in almost all
contaminated blood lawsuits, objections to discovery of
information about the donors are made by the hospitals/blood
banks/pharmaceutical companies. Discovery is often criticized as
expensive, and calculated to withhold information, not share
information. Some courts in pilot projects are now changing
discovery so that it is automatic rather than only done on
request.

Dismiss (Motion to) (also called a Demurrer)- After a lawsuit is
filed, the defending party may file a motion requesting that the
suit be dismissed for failing to state a cause of action or for
failure to state a claim for which relief may be granted. The
court must solely look to the complaint (the name of the pleading
usually used to start a suit; may also be called a "bill of
complaint.".) If the complaint states a cause of action, the
court denies the motion. If the complaint is not legally
adequate, the court may dismiss the case either finally or with
leave to amend. This may also be called, with or without
prejudice. A complaint dismissed with prejudice cannot be
refilled. [There are procedural traps here, such as an order of
dismissal with prejudice not being a final judgment, which we
will ignore.] A complaint dismissed without prejudice, or with
leave to amend may be refilled to try to correct the
deficiencies.

Diversity- used to refer to federal jurisdiction by diversity.
Federal courts are strictly limited in the kinds of cases that
they can hear. All states have courts of general jurisdiction
that can consider any litigation. Federal courts instead must
have a specific statute which permits them to hear a case. Most
cases involving contaminated blood in federal courts are
diversity case. Federal courts may hear cases between citizens of
different states under diversity jurisdiction.

Mandamus- An order by a superior tribunal ordering a lower
tribunal to do something, an "injunction" directed to a court or
its judges.

Prohibition- A court order directing that a lower court not take
act which it plans on doing. State court procedures vary widely.
In most states, if a party is displeased with an order, they may
appeal. Some states require that certain actions not be taken by
appeal, but instead just by prohibition. This results in strange
case captions, like Jones vs. The Superior Court of West
Fiddlesticks Judicial District. These cases are really between
the litigants below, and rarely does the Judge or Court come to
argue.

Rev'd- Abbreviation for reversed, indicating that a particular
court opinion was reversed on other grounds

Statute of limitations (also called statutes of repose)- States
provide time limits for bringing lawsuits in their civil law.
Even if a case is meritorious, if it is brought after the time
limit, it must be dismissed.

Strict liability (also called products liability)- The modern
concept of liability for products which cause personal injury or
property damage is called strict liability. In this case, if a
product is released into commerce, and is used without inspection
for defects, then if the product is miss-designed or hazardous,
the injured party may sue to recover against the manufacturer and
sellers without regard to contract law. In many cases involving
alleged contaminated blood, the plaintiff try to sue under the
doctrine of strict liability. However, many states have passed
laws which take the provision of blood out of this rule, and
instead require that all suits for defective blood be brought as
medical malpractice actions. The statute of limitations is often
very short on medical malpractice, often 2 years as compared to 5
or 5 years for strict liability. Blood cases often consider these
issues.

Summary judgment- Rule 56 of the federal rules of civil procedure
and similar state rules permit the court to rule on affidavits
and other discovery together with the pleadings without holding
any trial. In this case, the party seeking the summary judgment
must demonstrate that there are no material disputed facts for
trial, and that given the undisputed facts, that it is entitled
to a  judgment applying the law to these facts. All inferences
are drawn against the party who seeks summary judgment. Summary
judgments are greatly favored by lawyers and litigants, and
disfavored by the appeals courts. As a result, many summary
judgments are set aside. However, there are several summary
judgments which appeals courts have upheld in this program. These
usually involve the application of the statute of limitations to
a case. That is, the defense concedes for purposes of discussion
that there was negligence, but instead states that the case was
brought after the statute of limitations had expired.

 ABBREVIATIONS and LATIN- It takes law school students several
weeks to begin to make sense of the Latin terms and obscure
abbreviations in cases. Here is a list of the most frequent-

ADA- Americans with Disabilities Act

affd- shorthand for "Affirmed," indicates that the appeals court
summarily affirmed another courts decision

ALJ- Administrative Law Judge

ARC- Usually refers to AIDS related complex, in much less
frequent use, an acronym for American Red Cross

Arguendo- Assume just for the purposes of  the discussion

AZT- Anti-viral agent, sold under brand name Retrovir; one of the
few authorized anti-HIV agents

CDC- Center for Disease Control and Prevention; government agency
located in Atlanta, Georgia; one of the agencies which identified
the HIV epidemic; significantly involved in HIV government policy

CFR- Code of Federal Regulations- A very large set of paper back
books, supplemented by DAILY notices in the Federal Register.
These are regulations that govern how the executive branch of the
government works, as well as providing regulations for the
conduct of various businesses

Cert. denied- "Certiorari denied," indicating that the US Supreme
Court declined to accept a case for review; DOES not imply that
the U.S. Supreme Court agrees with any particular decision, just
that it did not review the case

De novo- The review of a case by an appeals court without giving
any presumption of correctness to the lower court decision

DOJ- Department of Justice

EEOC- Equal Employment Opportunity Commission; government agency
which oversees complaints of job discrimination

ELISA- test for presence of HIV anti-bodies; Enzyme Linked
Immunoassay

En banc- A session of court in which all of the Judges attend and
vote; appeals courts often sit in divisions or in panels of 3
judges drawn from the court; after an adverse ruling, litigants
may request a hearing before the entire court; rarely granted

ERISA- Employee Retirement Income Security Act- a federal labor
law which governs pensions and health benefits of many workers

Estoppel- An equitable legal doctrine in which a litigant is
precluded from introducing certain evidence or making certain
arguments because of  their prior improper behavior

Ex parte- Without notice; Central to our court system is the fact
that all parties with an interest in the outcome of a suit may be
heard and must be given prior notice of court hearings; certain
emergency applications may be made without notice to other
parties

FAPE- Free and Appropriate Public Education; Under various
federal laws and regulations children with disabilities must be
provided with a free, appropriate public education

FR- Federal Register; daily collection of federal government
proposed regulations and news

HBV- Hepatitis B Virus; a blood borne communicable disease
thought to be linked to those positive for HIV; used for
surrogate testing prior to ELISA/Western Blot tests

HIV- Human Immunodeficiency Virus- the  agent that causes persons
to suffer damage to their immune systems. Often used as a
catchall or synonym for AIDS or ARC

HTLV- Term used to describe HIV coined during early investigation
at NIH

LAV- Term used by the French Pasteur Institute to describe
disease know commonly known as HIV

MMWR- Morbidity and Mortality Weekly; CDC's weekly publication;
contains universal precautions and other items frequently
referred to in cases, administrative rules and cases

NIH- National Institutes of  Health; government agency which was
involved in early AIDS investigation

Per Curiam- By the court; an order or opinion of the Court which
does not state the name of the author, and is thus presumed to be
on behalf of the entire court

Sua sponte- The Court directed an action itself

Subpoena- A court order to appear to testify

Subpoena deuces tecum- A court order to appear and testify and to
bring documents/objects when testifying

UCC- Uniform Commercial Code- The "law merchant" of the United
States. It is not quite uniform, since each state has taken the
official draft(s) (there are continuing changes to the UCC by its
permanent committee) and changed things to suit local needs.
Usually referred to in cases involving suits over contaminated
blood, since if blood is governed by the UCC article on sales,
there are warranties which apply and remedies which permit
litigation

Universal precautions- A series of CDC recommendations for use by
professions who are in contact with blood; presumes that everyone
is infectious and has professionals take steps to avoid
blood/bodily fluids exchange

U.S.C.- United States Code- An official compilation of the laws
of the United States, split into 50 titles; a citation refers to
the volume and then section, for example, 42 USC 1983 refers to
volume 42, section 1983; section numbering can be Byzantine with
numerous sub-letters per section

Voir dire- "To speak the truth"; a opportunity to ask preliminary
questions before a person is qualified as a juror or expert
witness

Western Blot (WB)- confirmatory test for presence of HIV anti-
bodies