Jump to content
IGNORED

Josh Duggar Part 11 - The End of Rehab Is in Sight


Coconut Flan

Recommended Posts

It might be helpful to remember that lawyers act amazingly differently based on the state, and sometimes the region of a state.  Where I practice withdrawing while settlement negotiations were ongoing would be weird, its just not how its done.  There are a lot of these unspoken, thats not how we do it, rules and without talking to someone who practices there we don't necessarily know what they are.  I would say that when someone does this they are backing out of the case and unlikely to start it again, because that is likely what it would mean here.  I would also say that it wouldn't be because there is a settlement discussion happening.  That could be, but people would wonder why the lawyer was behaving as they were.  That doesn't mean its not the standard in PA.  It seems many of the lawyers on here are getting upset when others contradict them on the thats not how things are done, but it could be that its because how things are done changes drastically.  

Link to comment
Share on other sites

  • Replies 580
  • Created
  • Last Reply
3 minutes ago, justoneoftwo said:

It might be helpful to remember that lawyers act amazingly differently based on the state, and sometimes the region of a state.  Where I practice withdrawing while settlement negotiations were ongoing would be weird, its just not how its done.  There are a lot of these unspoken, thats not how we do it, rules and without talking to someone who practices there we don't necessarily know what they are.  I would say that when someone does this they are backing out of the case and unlikely to start it again, because that is likely what it would mean here.  I would also say that it wouldn't be because there is a settlement discussion happening.  That could be, but people would wonder why the lawyer was behaving as they were.  That doesn't mean its not the standard in PA.  It seems many of the lawyers on here are getting upset when others contradict them on the thats not how things are done, but it could be that its because how things are done changes drastically.  

It's not standard in PA.  Dismissals come after the resolution and releases.

ETA - the only rational reason for her filing a motion to dismiss without prejudice is because she wants the case put on hold, although we don't know why that is.  Duggars attorney may have a better idea.  Note also that he asked for the trial date to be moved up, so he's clearly posturing that he wants this case moved along as quickly as possible.

Link to comment
Share on other sites

1 minute ago, JenniferJuniper said:

It's not standard in PA.  Dismissals come after the resolution and releases.

Thank you, that is good to know.  

Link to comment
Share on other sites

I have no legal background whatsoever. But.....if she wanted money, and the lawsuit is looking dicey, perhaps she decided she would get more money by selling the evidence....photos, etc....to the highest bidder, so pulling out seemed the best alternative. Alternatively....she tweeted at least once, recently, about being catfished. What if somebody else was pretending to be Josh....and she actually is not certain herself, now, of dates OR actual id?

Backing slowly out of the room now, and going back to my imaginative world of rainbows, unicorns, and tiny miniature cows. ;-)

Link to comment
Share on other sites

Interesting thought, but I think it was josh.  She might not be able to prove it, but pretty sure it was him.  Not that I would ever want another baby brought into this mess, but it would have been interesting to see the fundy response if he fathered a child with her.  I suppose they would claim the DNA was tampered with because of Christian Persecution. 

 

 

Link to comment
Share on other sites

18 hours ago, Whoosh said:

I am hoping someone else can access the motion to withdraw the complaint to share more information. 

I have the motion and will upload it shortly have attached it. (I don't have redaction capabilities on my current device, so I removed the signature block and attachments, at least for now; I may be able to provide those later.) Here's the bottom line:

  • Last Friday, January 29, after reviewing "all materials." Danica "advised counsel to withdraw her lawsuit... without prejudice."
  • Danica's attorney contacted the clerk's office about dismissing the case under Rule 41 and was told that Danica couldn't dismiss the case that way because it got to federal court via "removal" by Josh. So Danica attempted to negotiate a stipulation.
  • Josh's attorney said that Josh won't agree to dismissal of the case unless certain conditions are met. And Danica's attorney says Danica won't agree to Josh's conditions. So no stipulation is possible.
  • Danica's attorney wants the court to allow her to dismiss the case without prejudice.

23, page 1.jpg

23, page 2.jpg

23, page 3.jpg

23, page 4 (excerpt).JPG

Link to comment
Share on other sites

Wow, this must be a really long term lawsuit if we're thinking of going all the way to 2106. Is time travel involved In this case? How fascinating!

Link to comment
Share on other sites

8 minutes ago, Trynn said:

Wow, this must be a really long term lawsuit if we're thinking of going all the way to 2106. Is time travel involved In this case? How fascinating!

Sloppy stuff all around.  But he is telling the truth about her not paying his bills he's probably spending little time formulating his arguments.  Or proofreading.

Link to comment
Share on other sites

Wow, this must be a really long term lawsuit if we're thinking of going all the way to 2106. Is time travel involved In this case? How fascinating!

Sloppy stuff all around.  But he is telling the truth about her not paying his bills he's probably spending little time formulating his arguments.  Or proofreading.

Oh I know it's an error, just trying to inject a little humor into a sucky situation.

I'm not sure I understand some of the legalese in that document... Basically Danica tried to withdraw the suit, and Duggar refuses?

Link to comment
Share on other sites

12 minutes ago, Trynn said:

Sloppy stuff all around.  But he is telling the truth about her not paying his bills he's probably spending little time formulating his arguments.  Or proofreading.

 

Oh I know it's an error, just trying to inject a little humor into a sucky situation.

I'm not sure I understand some of the legalese in that document... Basically Danica tried to withdraw the suit, and Duggar refuses?

In simple terms she wants to dismiss her case against Josh but reserve the right to reactivate it sometime later is she so chooses. She needs Josh to agree to this. Josh will only agree if she dismisses the case for good. And he wants a. public apology and his defense costs back.

 

 

 

Link to comment
Share on other sites

41 minutes ago, JenniferJuniper said:

In simple terms she wants to dismiss her case against Josh but reserve the right to reactivate it sometime later is she so chooses. She needs Josh to agree to this. Josh will only agree if she dismisses the case for good. And he wants a. public apology and his defense costs back.

 

 

 

So, Josh is willing to go ahead with the case as opposed to having it hang over his head, is that the idea? Hard to understand why she would do this, and I guess I don't quite understand his  motives either. Unless he is just forcing her to give it up completely. I guess. Hmm...

Link to comment
Share on other sites

11 hours ago, TheJewAmongUs said:

Does anyone think that Josh's "rehab" has been anything other than sitting around, holed up in some property that his father owns, waiting for the TV cameras to return . . . [etc]?

If you will read back over the last five or six months on this topic, you will see that a lot of us believe that Josh is at some form of Fundie rehab, almost certainly RU.  

The Duggars genuinely believe in prayer therapy, they like to talk about being "totally broken" with repentance, and they are obviously  angry at Josh. While one can never be certain of anything, I believe your scenario that the family has just hidden Josh away in comfort is improbable.   

But we've argued  "where is Josh?" pretty thoroughly already. I kind of like the abducted by aliens theory myself.

<need icon of beating a dead horse>

Link to comment
Share on other sites

Am I misremembering, or didn't one of the court documents give Josh's address as RU?

Link to comment
Share on other sites

@JenniferJuniper

I really don't want to deal with you any more as you are just remarkably offensive and obnoxious.  YOU ARE WRONG.  Intentional torts have a VERY different range of types of damages that might result from the harms that you prove in court.  Ever heard of punitive damages?  Even know what they are?  Seriously, just about everything you say about this case screams INSURANCE DEFENSE WORKER - not intentional tort defense attorney.  You don't get it and likely never will - I get that ;)

Enjoy playing bash-a-hooker daily for months on end if that is what you need to do for some reason.  I know you won't give a SHIT that you might actually be playing bash-a-victim.  Why would you, right?  

Anyway, that is as far as I read in your post.  You and your various hatreds and -isms enjoy yourselves.

 

Link to comment
Share on other sites

Her lawyer states that she hasn't the funds to pay her own legal fees.    Please correct if I have misunderstood the US system, but if her case was strong/winnable, wouldn't a lawyer take it on a contingency basis?

ETA There doesn't seem to be a great deal of investment of money on the lawyer's part - doesn't her claim rest on her producing medical records and proof of financial loss? Only if they decided to investigate Josh's claimed alibi can I see the possibility of monies expended.

Link to comment
Share on other sites

So I am going to try to talk about this one more time.  @sawasdee, I totally agree with you that if her attorney thought she had a strong case at this point he would continue on with the case on a contingency basis.  So, it absolutely does seem that either she doesn't have much in the way of evidence OR Duggar has something that is so compelling it overwhelms whatever it is she might have.  Does that mean this was a totally false claim?  Not necessarily, but at this point it does seem fairly likely.  I still won't say SHE IS LYING - policy reasons.  I am going to choose to wait to see what the judge does here. If the judge feels it is clear that she literally had no case, he may well refuse to let her withdraw her complaint without prejudice.  He may also require her to pay Duggar's attorney's fees if he feels that way and she opts to withdraw with prejudice.  Do I expect that?  No, I don't expect an awarding of fees really, but if she has NO CASE the judge may well refuse a without prejudice withdrawal of the complaint.  For POLICY REASONS, I will recognize that real, genuine victims of sexual assault can't always win a case for a variety of reasons and since I don't want to bash a victim for any reason, I will wait and see what happens here.  That is my choice, others will choose differently.

A lot of people who have been commenting on this case come from the insurance industry.  The insurance industry is largely focused on managing risk and spreading costs throughout society while making a plaintiff or a victim whole again.  That isn't what this case is about.  Since the early days of all of this, people claiming expertise and experience in civil litigation AND most other people have been citing the general rule or the rule or point of view that represents the mainstream, "normal" way things operate.  That way of thinking or set of rules doesn't apply in a case that isn't "the norm".

According to what a lot of people have been saying, the plaintiff can be totally fabricating their claims, but they will be allowed to drop the case without either the agreement of the defendant OR the approval of the judge.  If a plaintiff can actually do that and can elect to withdraw the complaint without prejudice (as Dillon is trying to do), that plaintiff could haul a totally innocent person into court, waste all kinds of their time and money, disparage them with media coverage of the debacle, then check a box on a form that says "withdraw complaint without prejudice" and go home.  She would be free to do this again in the future, as she checked the box that says without prejudice.  

Does that make sense?  Not to me and not to most people I wouldn't think.  So, how does the system prevent that type of outcome?  There are several ways.

1.  RULES for dismissal - these vary by jurisdiction, but I am going out on a limb here and saying I am POSITIVE that every jurisdiction in the USA (and every branch of law in every jurisdiction) has mechanisms in place for preventing a plaintiff from abusing  the defendant and the system in that manner.  Howl posted the federal rules of civil procedure which clearly state that the plaintiff can drop the case all on her own VERY EARLY in the case, but that ability is lost once the defendant actually starts responding to what is going on.  I looked up the GENERAL RULE in California and people are largely discussing it correctly.  There are, however, EXCEPTIONS.  Those exceptions won't apply to most instances and most types of cases (that is why they are called exceptions rather than the general rule), but they EXIST FOR POLICY REASONS.  I looked this stuff up for California and found this blog post.  It isn't the best source for an attorney to use, but it is understandable in terms of talking about the issues.  Basically, in CA a plaintiff has the right to withdraw a complaint with or without prejudice UNTIL THE COMMENCEMENT OF THE TRIAL.  So, it is not "any time", it is "until the commencement of the trial".  HOWEVER, for policy reasons that doesn't always make sense, so, the reality is that while that is the general rule in CA, that right of the plaintiff is NOT ABSOLUTE.  Here is what the blog has to say:

"The California Courts have ruled that allowing a plaintiff to file a voluntary dismissal in circumstances such as the ones mentioned above would subject a defendant to continuous litigation, would not allow for the orderly and timely disposition of civil litigation and would delay any resolution of the validity of the pleading filed by the plaintiff. This would be contrary to the strong public policy in California of determining actions on their merits."

http://legaldocspro.net/blog/vacating-a-voluntary-dismissal-in-california/

So, maybe the whole problem in this conversation has been a language problem.  It could be that in CA technically the plaintiff is allowed to withdraw the complaint and then the defendant has to file a motion to vacate that.  As the federal rules state clearly, other jurisdictions avoid that awkward procedural reality by requiring the judge to approve a motion to withdraw a complaint at an earlier point in the process.  So maybe it is all a case of everyone talking past each other and not hitting on the same points or topics.  Not sure.

2.  ATTORNEY FEES - same deal.  Very early on in all of this, people were saying that attorney's fees would never be awarded in either direction here.  They were citing the general American Rule and that is what it says.  HOWEVER, FOR POLICY REASONS this rule does not always make sense.  Therefore, one of the EXCEPTIONS to the general rule is that a judge may award these fees in just about any case unless barred by statute.  The judge may do this "in the interest of fairness and justice".  Y'all can call me cray cray, but I am pretty sure what Duggar is saying right now is "I want her to pay my attorney's fees IN THE INTEREST OF FAIRNESS AND JUSTICE" - and the judge may actually DO that (though it is not all that likely).

I will write another post in a little bit that addresses proof of harms and award of damages IN A CASE LIKE THIS CASE.

I am not saying all of this because I need to be right.  I admit I am wrong all the time and typically really don't care.  I also don't care if people are just flat out wrong for the most part - who cares on most issues and topics?  No big deal.  Particularly when things are a matter of opinion without much provable factual basis, I don't much care what anyone thinks.  

I will dig my heels in on an issue when I believe that if I don't people will be left with misinformation based on faulty factual information that results in harm to others.  I see no reason to further encourage the bashing of a possible assault victim by spreading misinformation and I don't have to sit silently by if someone else is doing that.  Further, people are already distrustful enough of the legal system - why tell them that any random stranger can sue them, spend months of their time, money and dignity mucking around with false claims, take her ball and go home without the approval of the judge or the agreement of the defendant, AND THEN DO IT ALL OVER AGAIN IN THE FUTURE?  That IS NOT TRUE and is not a good message to send.  That is NOT how our system of jurisprudence works here in the USA.

Basically, there are not all that many situations in life where there is a one size fits all answer to things.  If someone has a very different perspective than you do, it might be worth asking them WHY.  Maybe you can help them learn something or maybe you can actually learn something yourself. (using the general you there, not YOU @sawasdee :) )

 

Link to comment
Share on other sites

Intentional Torts

I think we ALL know there are various areas of law that are based on different public policies and the standards and practices of one area of law don't necessarily apply in another.  So, people tend to understand that there are clear differences between areas of law when it comes to criminal vs contract vs trusts and estates, etc.  Some cases might involve more than one area of law and that is not big deal - you use the applicable standards and practices for each aspect of the case.  This case deals entirely with INTENTIONAL TORTS.  The insurance industry doesn't basically doesn't cover intentional torts (though there may be exceptions I am unaware of).  Even if an insurance company wanted to cover intentional torts, they will be barred from doing so FOR POLICY REASONS.

There are three main types of torts - Strict Liability, Negligence and Intentional.  How things work depends on what type of tort you are talking about FOR POLICY REASONS.  If you are only interested in THIS CASE, skip the next two long boring paragraphs and go to the long boring part after that.

In strict liability cases, the defendant doesn't have to act with either intention or negligence.  The mere fact that they are doing what they are doing gives rise to the duty to pay for any harm that arises from their behavior.  So, if someone is demolishing a building they are going to be held strictly liable for any collateral damage that occurs.  They may use the utmost caution and the best standards and practices that exist, but if a piece of the building they are demolishing flies off and breaks the windshield of a nearby car they will be held responsible for making that car owner whole again.  That is a LOT to put on someone.  That type of looming potential for liability for harms might actually result in a reality where no one would even be willing to demolish a building.  Fortunately, we have INSURANCE companies to step in here.  Someone who wants to go and demolish a building can get insurance coverage.  That way, if something happens, the insurance company steps in and makes the car owner whole by paying for a new windshield.  All kinds of people PAY INTO that insurance system.  When necessary and if all the circumstances are "right", the insurance company steps in and rights the wrong.  This ensures that plaintiffs or victims are made whole while at the same time allowing society as a whole to spread the risks (and associated costs) of day to day reality.  How much people are required to pay into an insurance policy depends on how risky their proposed behavior is and on what types of harms might result.

In negligence cases, a defendant can't be held liable UNLESS they in some way breached a duty.  Take sidewalks and snowstorms.  We don't hold people strictly liable for harms that arise due to a slippery sidewalk.  While the snow is falling and for a period of time after, people walk down the sidewalk AT THEIR OWN RISK.  However, we as a society DO want sidewalk owners to act with reasonable care in order to prevent harms and injuries.  Most jurisdictions have a set timeframe within which a property owner must make their sidewalks passable OR THEY WILL BE HELD LIABLE FOR any harms that arise due to their negligence.  So, in my example we have a person slipping and falling on an icy sidewalk.  They are HARMED and they need to be made whole.  We as a society need to decide who covers the costs of making that person whole.  If they are the property owner OR if the property owner has not acted negligently, the person who slipped and fell will be responsible for trying to make themselves whole.  If the property owner acted negligently, that property owner will be required to make the person whole.  Again, here, an INSURANCE policy might mean that an insurance company steps in and pays out some amount to cover the actual harms suffered in the fall.  This again spreads risks and associated costs throughout society.  If we didn't do this, people might not open a store for fear that they might oversleep on the day of a snowstorm and be late with their shoveling and sanding of the sidewalk outside their store thereby placing them at risk for having to cover the costs of a potentially life altering brain injury that may occur if someone slipped and fell on the sidewalk outside their shop.  We don't want that - we don't want the consequences or punishment for negligent acts to be so steep that people are afraid to act and operate in the world.  Of course, there is standard negligence and then there is stuff like acting with reckless abandon - they are different and the consequences doled out are different, but neither is intentional and so the consequences or punishments are not the same as for intentional acts.  POLICY REASONS.

Dillon is suing for battery and intentional infliction of emotional distress.  It isn't a strict liability case - no matter what the fundies may tell us there is no great inherent risk of a battery occurring simply because a man and a woman in close proximity - even if the woman is being paid for sex.  This isn't something that could happen even if each party took the utmost in care and proceeded with great caution.  Nor is it a negligence case - the Defendant isn't being accused walking across the room with a lack of caution or even with reckless abandon which caused him to then trip on the hotel rug which then caused him to inadvertently hit the plaintiff repeatedly while cutting of her air supply with his sex organs.  Regardless of what actually happened, the accusation here is that Duggar committed an INTENTIONAL TORT.  With possible rare exceptions, we don't allow for insurance coverage for this type of thing - FOR POLICY REASONS.  Further, we don't limit the award of damages to actual, provable harms or losses FOR POLICY REASONS.

To bring this type of claim, the plaintiff must allege and prove actual harms.  Dillon made those allegations.  She alleged she had suffered emotional distress, incurred medical expenses (which would supposedly be ongoing), and lost business opportunities.  In order for her to prove her case, she would need to provide evidence of each of those losses.  She was supposed to demonstrate the ability to produce evidence that would prove this during discovery.  She wouldn't need to prove that she was totally and permanently unable to work at all any more than she would need to prove that she was totally and permanently unable to breathe - she didn't allege to be suffering from either one of those harms and she would not be required to prove something which she had not alleged.

Link to comment
Share on other sites

DAMAGES - many people from the insurance industry (and possibly the general public) seem to be under the impression that, if Dillon succeeded in proving all the elements of her claims, her recovery would be limited to paying xxx dollar amount to cover each harm.  That is an insurance industry way of viewing things - make the plaintiff whole.  That is NOT the theory or reality of how damages work when it comes to intentional torts FOR POLICY REASONS.  We don't want people to be able go about life in a way that might result in their intentionally assaulting and battering another human being.  We don't want to spread the potential risks and associated costs of that type of behavior.  POLICY REASONS.  

In an intentional tort case, we DO want to make the plaintiff or victim whole again.  Therefore, they will be asked to provide evidence of the harms they have incurred.  We ALSO want to DETER people from going about life in a way that might lead to their committing an INTENTIONAL BATTERY and inflicting upon another the INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.  We want to punish the SHIT OUTTA THAT.  We don't want that to ever happen again for ANY REASON.

Therefore, the types of damages available in an intentional tort case are NOT THE SAME as they are for strict liability or negligence cases.  NOT THE SAME. POLICY REASONS.  Damages awarded will INCLUDE BUT NOT BE LIMITED TO making the plaintiff whole.  Therefore, the damages available ARE NOT TIED to specific harms the plaintiff is able to prove.

*Damages fall into 3 categories - nominal, compensatory, and punitive.  

TYPES OF DAMAGES *this is a copy and paste from here on out.

  • Special Compensatory Damages - Special damages compensate for monetary expenses incurred because of an injury. They are unique to the individual victim and vary significantly from one party to the next. An award of special damages should make a victim whole for expenses incurred or for money lost due to the incident or accident that caused their injuries.  Special damages cover any expense or loss related to an injury, and there is no limit to the types of special damage claims that can be made, or to the amount an injured party can claim. Some of the more common types of special damages are: 
    • loss of earnings 
    • loss of future earnings 
    • medical bills 
    • cost of future medical care 
    • household expenses
    • costs associated with cancelled trips or altered plans
  • General Compensatory Damages - General damages compensate an injured individual for non-monetary damages incurred in an injury claim. They are called general damages because they address harm that is typically or “generally” sustained in an injury. All personal injury victims are expected to have at least some general damages. The most common types of general damages are: 
    • pain and suffering 
    • mental anguish 
    • loss of consortium or companionship  
  • Punitive Damages 

    • Punitive damages are only awarded to an injured plaintiff when the wrongful behavior of the defendant was despicable or reprehensible. A common scenario where punitive damages are awarded arises when a defendant is found guilty of wanton or malicious acts or of fraud. These acts might include aggravated battery, sexual assault, or fraudulent behavior that causes widespread financial harm. Occasionally, in high-profile injury cases such as those involving defective products or health risks linked with prescription drugs, juries will award punitive damages against product manufacturers and other defendants who have "deep pockets." 

Link to comment
Share on other sites

5 hours ago, sawasdee said:

Her lawyer states that she hasn't the funds to pay her own legal fees.    Please correct if I have misunderstood the US system, but if her case was strong/winnable, wouldn't a lawyer take it on a contingency basis?

ETA There doesn't seem to be a great deal of investment of money on the lawyer's part - doesn't her claim rest on her producing medical records and proof of financial loss? Only if they decided to investigate Josh's claimed alibi can I see the possibility of monies expended.

Fee arrangements in civil litigation are agreed to by between the the parties in advance.   Most attorneys will only take a case on contingency basis if, as you say, s/he feels the case is fairly strong for the client.  Not necessarily fully winnable, but likely to produce a settlement to justify the work and costs at least. For anyone who doesn't know what this is about, the attorney agrees to not bill the client for his work and instead takes a percentage of any settlement or judgement, usually 1/3 but it could be higher or lower depending on the situation.

There is always a risk there will be no settlement agreement and that the client loses at trial, but very active plaintiff firms and attorneys usually balance the wins and the losses over the course of the year and if they take the right cases, come out ahead.  And most cases with some merit and a defendant with enough money or an insurance policy covering them usually do settle.

It would appear this is not the agreement between Dillon and her attorney and that he is instead billing her hourly for his work as her attorney claims she isn't paying him.

Someone asked about Josh's attorney's motivations.  Dillon's attorney would appear to be indicating hat she is not prepared to produce her medical records.  Since he's had the case since at least November and knew fully well he'd be required to produce them, there really is no clear reason why medical records that confirm an assault took place haven't been provided to the court. This is signalling to the other side a potentially serious weakness in her case. Josh's attorney is now betting that there are no records that confirm an assault and is therefore forcing Dillon's hand.  He won't let her dismiss this unless she agrees to shut the lawsuit down for good.  As of right now she has not agreed to this, but unless she produces proof of an assault as alleged, eventually the court itself will dismiss the case.

 

Link to comment
Share on other sites

16 hours ago, Hera said:

Since Josh has answered, the only way that DD can dismiss without prejudice is if Josh's attorneys agree.  

@Hera correctly quoted and applied Federal Rule of Civil Procedure 41 earlier, at least as it applies to a plaintiff seeking to dismiss a case in federal court without getting the judge involved. Under that rule, a civil plaintiff can move to dismiss or withdraw a complaint without seeking court approval in only two circumstances: (1) if she does so before the defendant files an answer, or (2) if all parties sign a "stipulation of dismissal." Josh already filed his answer, and he refused to sign a stipulation of dismissal, so Danica's only option for getting the case dismissed is to get the judge involved. That's why she filed this motion. Under Rule 41(a)(2), "an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper.... Unless the order states otherwise, [such] a dismissal... is without prejudice." Judges have lots of discretion in this area. 

If the judge thinks Danica filed a frivolous lawsuit without evidence to support her claims, the judge could order Danica to pay Josh's costs (because such a ruling would help to deter people from filing frivolous lawsuits, as @Whoosh suggested earlier). But if the judge thinks that Danica initially filed the lawsuit in good faith, the judge would probably not make her pay for Josh's costs (because each side ordinarily pays for its own attorneys, having chosen the attorneys in part based on what they think they can afford, and because it could be unfair to make a plaintiff pay all the defendant's costs if the defendant spared no expense and ran up a huge attorney bill, yet a defendant has every incentive to spend money on attorneys because he doesn't want to be found liable). In short, it's complicated, and I look forward to finding out what the judge decides.

7 hours ago, 2manyKidzzz said:

So, Josh is willing to go ahead with the case as opposed to having it hang over his head, is that the idea?

Josh has already said he wasn't there and he didn't do it, but there has been a fair bit of media (tabloid) coverage of the lawsuit filed against him and its allegations, so I think he wants his day in court -- or a complete and public retraction by Danica -- to clear his name. (He obviously thinks he would win at trial.) His attorney says that Josh is willing to let Danica dismiss the case if she tells everyone that she was lying about him, pays all his attorneys' fees, and promises never to refile the lawsuit.

Link to comment
Share on other sites

Thanks for that insightful post, @diplomat

As far as other people making random claims that the problem here is an inability to provide medical records, I can't be sure but I would be SHOCKED if Dillon has not been seeing medical professionals about all this since at least mid November whether she needs to or not.  I am not sure why anyone thinks that if this is all about a failure to be able to produce evidence, it would be about the medical records.  Sure, someone could argue that the medical records she could produce from the fall and winter are not credible evidence of an injury sustained in the spring, but that would be a question of fact not a matter of law and should go to a jury I believe.  Maybe I am missing where this line of reasoning is coming from, but it doesn't track for me at first glance.

Perhaps the line of reasoning has something to do with the fact that Pennsylvania is split as to whether physical injury is required in cases of intentional infliction of emotional distress.  If so, first of all, this very judge said the courts are split on that and he would allow the case to move forward.  Not sure why he or anyone else involved would reverse that line of reasoning now.  Also, this seems to be a total misunderstanding of the issue.  

When a person is claiming injury due to intentional infliction of emotional distress, they must prove that distress through medical records.  Anyone with an understanding of psychology will realize that an injury of this type that actually results in real emotional distress and legitimate mental health issues might well not result in immediate trips to a medical professional.  As has been discussed in these threads, it would be perfectly reasonable that a person injured in this way would not actually see a doctor until many months after the triggering event actually occurred.

If the courts did require proof of actual physical harm, that doesn't mean that the initial injury was the direct and immediate cause of that harm.  What that means is that more along the lines of something like this - say someone forces me to watch while they murder my whole family.  I believe people should be able to understand how that might be seen as qualifying as intentional infliction of emotional distress.  In some jurisdictions, I could prove that by providing medical records that document my emotional distress.  In other jurisdictions, that is not enough.  In those jurisdictions, I would also need to prove some actual PHYSICAL result of that - perhaps a heart attack or high blood pressure, etc.  Some courts have even accepted physical manifestations such as stomach upset or sleeplessness.  This judge has said the courts are split on whether proof of physical harm would be required in this case.

In short - it is pretty believable to me to say that Dillon can't produce evidence to support each and every element of her claim.  It is remarkably hard for me to fathom that all this is happening because Dillon forgot to go to any kind of doctor over the past few months and therefore doesn't have enough evidence in terms of medical records for her case to survive as a matter of law or that her attorney is just now realizing that her medical records are so weak as to be laughably unbelievable.  Recently discovered problems with other types of evidence (maybe proof it was Duggar or proof it was nonconsensual) seem remarkably more likely in my book.  Who knows, maybe people have more information than I do and Dillon really is that stupid and/or her attorney was really that woefully lazy and unprepared.  Stranger things HAVE happened.

Anyhoo....  Fascinating stuff.

Link to comment
Share on other sites

14 hours ago, JenniferJuniper said:

It's not standard in PA.  Dismissals come after the resolution and releases.

ETA - the only rational reason for her filing a motion to dismiss without prejudice is because she wants the case put on hold, although we don't know why that is.  Duggars attorney may have a better idea.  Note also that he asked for the trial date to be moved up, so he's clearly posturing that he wants this case moved along as quickly as possible.

There could be any number of reasons they moved to dismiss without prejudice.  I've seen it done in the middle of a trial in state court because the plaintiff's lawyer couldn't get his shit together.  Here we call it a "non-suit," and a plaintiff can take that option once, at any time, with the option to refile within a year.  The only exception is if there is a dispositive motion pending at the time the motion to dismiss is filed.  At any rate, there could be a dozen procedural explanations for why plaintiff's counsel is requesting to dismiss without prejudice, and I think there is little chance that the judge will not grant the request, even over the objection of defense counsel.  

Link to comment
Share on other sites

9 hours ago, JenniferJuniper said:

In simple terms she wants to dismiss her case against Josh but reserve the right to reactivate it sometime later is she so chooses. She needs Josh to agree to this. Josh will only agree if she dismisses the case for good. And he wants a. public apology and his defense costs back.

 

 

 

I don't see why Josh would agree to dismissing the case and allowing her to pick it back up whenever she sees fit. Especially if he really has compelling evidence that he wasn't there. I didn't even know that was legal. If I were the defendant I wouldn't agree to that.  Who wants to live their life wondering when someone will continue a lawsuit against them?

Link to comment
Share on other sites

  • HerNameIsBuffy locked this topic
  • Coconut Flan unlocked and locked this topic

Archived

This topic is now archived and is closed to further replies.

Guest
This topic is now closed to further replies.



×
×
  • Create New...

Important Information

By using this site, you agree to our Terms of Use.