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Every word hanging in the balance

Robert Barnes
Monday, October 18, 2010; A17

The password at the Supreme Court on Wednesday was "file."

The day before, it was "unavoidable."

And in another case, the justices spent considerable time pondering the meaning of the phrase "necessarily implies." That one is particularly problematic, Chief Justice John G. Roberts Jr. noted.

"I mean, the adverb points one way and the verb points the other," he said.

Supreme Court justices receive the most attention when they divine the Constitution to determine how it protects personal privacy or restricts the government from infringing gun rights.

But their work more often is deciphering the muddy language of legislative compromise or even the ambiguous words of their predecessors on the bench.

Three cases the court heard last week all hinged on the definitions of a handful of words. And there is nothing trivial about the task.

The decision on "unavoidable" in Bruesewitz v. Wyeth could determine whether parents have the right to sue over defectively designed vaccines they allege devastated their children's health. The meaning of "necessarily implies" in Skinner v. Switzer could be key to whether a man on death row gains access to DNA evidence he says could prove him innocent.

And Kevin Kasten might be able to sue his former employer if the court decides that he "filed" an official complaint the day he told a supervisor that the placement of time clocks was illegal and part of an effort to cheat workers out of overtime pay. Saint-Gobain Performance Plastics fired him the day they moved the clocks and settled a complaint with others for $1.5 million.

But courts have said Kasten can't sue for retaliation because the Fair Labor Standards Act requires his complaint to be written, not verbal.

His attorney, James Kaster, told the justices the oral warning fulfilled the statute's language of protecting workers who "file any complaint."

Doesn't filing a complaint usually mean it is written? asked Justice Samuel A. Alito Jr.

"It can often mean a written communica-tion," Kaster responded.

"Are you filing your comments right now?'' Alito asked.

"I think I am, Your Honor," Kaster said.

"You are? Really?" Alito responded.

Justice Antonin Scalia chimed in. "Now, come on, people don't talk like that," he said. "This is absurd."

But Justice Ruth Bader Ginsburg noted the law doesn't specifiy that the complaint be written, and ventured that when Congress wrote the act in the 1930s, it might have had in mind the illiterate or those for whom English was not their native language.

As Kaster said, "Coal miners, factory workers, line workers, they don't write memos . . . lawyers write memos."

In the DNA case, Henry Skinner is suing under civil rights laws to gain access to the evidence, which has never been tested, but was taken at the scene of the triple murder of which he is accused.

He contends his suit should be allowed to go forward under a 1994 Supreme Court decision that barred prisoners from such claims if they would "necessarily imply the invalidity of a conviction or sentence."

That is not his case, Skinner contends, because the evidence might not be exculpatory.

"You read 'necessarily implies' to mean 'conclusively establishes,' right?" Roberts asked Skinner's attorney Robert Owen.

"Not that strong, Your Honor," Owen replied.

The vaccine case might have been the thickest thicket. Congress was clearly trying in its 1986 act to ensure the availability of vaccines by making it harder to sue for the inevitable side effects they might have on a small portion of the population.

It said no vaccine maker could be held liable in court for death or injuries arising from "side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings."

Kathleen Sullivan, representing Wyeth, said that means the company can't be sued unless the vaccine was improperly prepared or had inadequate warnings.

But David C. Frederick, representing the family, said the addition of the word "unavoidable" means that claims must be considered on a case-by-case basis, to see whether the side effects were avoidable, such as by offering a safer vaccine.

The justices used the words "avoidable" or "unavoidable" about once a minute during the hour-long argument, with no clear conclusion.

Except one.

"The language that they used is certainly, to say the least, confusing," Ginsburg said.

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