Trump Swings His Wrecking Ball at Social Security

NEIL H. BUCHANAN

Neil H. Buchanan—UF law professor and economist—dispels some common misunderstandings about the future of Social Security but explains why President Trump’s recent comments are cause for concern. Buchanan explains why, contrary to claims by reporters and politicians, Social Security is not at the brink of insolvency, but points out that if Trump were to permanently eliminate payroll taxes, that would doom the program on which tens of millions of retirees depend.

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Iverson v. United States

Court: US Court of Appeals for the Eighth Circuit

Docket: 18-3137

Opinion Date: August 31, 2020

Judge: Lavenski R. Smith

Areas of Law: Government & Administrative Law, Personal Injury, Transportation Law

The Federal Tort Claims Act (FTCA) removed sovereign immunity from suits for “injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission” of a federal employee acting within the scope of his employment, 28 U.S.C. 1346(b)(1)). The FTCA generally exempts intentional torts, which remain barred by sovereign immunity. The “law-enforcement proviso” allows plaintiffs to file claims arising “out of assault, battery, false imprisonment, false arrest, abuse of process, [and] malicious prosecution” that are the result of “acts or omissions of investigative or law enforcement officers of the United States Government” and defines investigative or law enforcement officer as “any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.” Iverson went through security at the Minneapolis-St. Paul airport, walking with the aid of crutches. Transportation Security Officers (TSOs) performed a pat-down search; Iverson was allowed to place his hands on his crutches but had to stand on his own power. Iverson alleges that a TSO pulled him forward and then abruptly let go, causing Iverson to fall and be injured. The TSA denied an administrative claim. Iverson sued, asserting battery and negligence. The Eighth Circuit reversed the dismissal of the case, finding that TSOs satisfy the FTCA’s definition of an investigative or law enforcement officer.

Jordan v. SSA Terminals, LLC

Court: US Court of Appeals for the Ninth Circuit

Docket: 19-70521

Opinion Date: August 28, 2020

Judge: Block

Areas of Law: Labor & Employment Law, Personal Injury

Jordan worked for SSA as a longshoreman and operated a small landscaping business. In 2014, the truck Jordan was driving was dropped by a crane. He suffered extensive damage to his lower back. After treatment by medication and physical therapy, Jordan had spinal fusion surgery. Before the 2018 surgery. Jordan sought benefits under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. 901–50. SSA agreed that Jordan was totally disabled immediately following the accident and again as he recovered from surgery. Surveillance videos, recorded in 2015-2016, showed Jordan engaging in physical activities and attending events where he apparently sat and stood for long periods without difficulty. Jordan testified, “There’s nothing I can’t do, but it all either is painful, elevates the pain, or I can’t do it for the amount of time that would be considered a job.” Jordan continued his landscaping but testified that his capacity was limited. Dr. Reynolds corroborated Jordan’s complaints of pain and opined that Jordan was totally disabled from work as a longshoreman. The Ninth Circuit remanded the denial of benefits. Credible complaints of severe, persistent, and prolonged pain, arising out of an injury, can establish a prima facie case of disability, even if the claimant can literally perform his past work. The claimant need not experience excruciating pain to be considered disabled. The ALJ apparently erroneously believed Jordan had to establish that it was literally impossible for him to do his past work.

Quintana v. Santa Fe County Board of Comm.

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-2039

Opinion Date: August 28, 2020

Judge: Timothy M. Tymkovich

Areas of Law: Civil Rights, Government & Administrative Law, Personal Injury

Ricardo Ortiz died in 2016 while in the custody of the Sante Fe Adult Detention Facility (ADF). Ortiz’s personal representatives sued multiple individual ADF affiliates, alleging state claims under the New Mexico Tort Claims Act and violations of his Fourteenth Amendment right to medical treatment under 42 U.S.C. 1983. The defendants moved to dismiss the first amended complaint, and the plaintiffs moved to amend their complaint to include a claim for municipal liability that was not in any prior complaint. In an order addressing both motions, the district court dismissed the section 1983 claims, denied the plaintiffs leave to amend to include that municipal liability claim, and remanded the state-law claims. On appeal, the plaintiffs-appellants argued the district court erred in dismissing the section 1983 claims against individual prison employees and in denying leave to amend. The Tenth Circuit agreed that plaintiffs-appellants plausibly alleged Officer Chavez violated Ortiz’s clearly established constitutional right to medical care for acute symptoms related to his withdrawal from heroin. But the Court could not conclude they plausibly alleged the other individual defendants violated Ortiz’s clearly established constitutional right to medical care under these circumstances. Therefore, the Court vacated the district court’s dismissal with regard to Officer Chavez but affirmed with regard to the other individual defendants. Separately, the Court concluded the district court should not have denied the plaintiff leave to amend for reasons of futility: the district court determined that the plaintiff could not state a claim for municipal liability without first properly stating a claim against an individual, but Tenth Circuit precedent allowed municipal liability even where no individual liability existed. Accordingly, the Court vacated the district court's denial of leave to amend.

Santiago v. Raytheon Technologies Corp.

Court: US Court of Appeals for the Eleventh Circuit

Docket: 18-15104

Opinion Date: August 31, 2020

Judge: Marcus

Areas of Law: Civil Procedure, Environmental Law, Personal Injury

In 1996, when she was an infant, Cynthia's family moved to the "Acreage" in Palm Beach County, Florida, about 10 miles from undeveloped land that Pratt used for tests that contaminated the soil. By 1993, most of the soil at the site required removal. Cynthia’s parents allege that in 1993-2000, Pratt excavated contaminated soil that was sold as “fill” for the Acreage and that runoff from the contaminated soil leached into the Acreage’s water supply. In 2009, the Florida Department of Health found a cluster of pediatric brain cancer cases in the Acreage. In 2009, doctors diagnosed Cynthia with ependymoma brain cancer, which metastasized to her spine. Doctors detected thorium-230 in Cynthia’s spine hundreds of times higher than would normally be expected. Cynthia turned 18 in 2014 and filed suit, alleging she was unaware of the contamination until 2014. Cynthia died in 2016. Her Florida law wrongful death by negligence and trespass claims were untimely under Florida's four-year limitations period. With respect to claims under the Price-Anderson Act, 42 U.S.C. 2210(n)(2), her parents cited the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. 9601, which tolls the statute of limitations until a plaintiff knows (or reasonably should have known) her injury was caused by a hazardous substance, or until the plaintiff reaches the age of majority. The Eleventh Circuit affirmed the dismissal of the suit CERCLA’s discovery-tolling provision applies only to actions “brought under State law.” Actions under the Price-Anderson Act borrow from the state where the incident occurred, so Florida’s four-year statute of limitations governs.

Gund v. County of Trinity

Court: Supreme Court of California

Docket: S249792

Opinion Date: August 27, 2020

Judge: Cuellar

Areas of Law: Labor & Employment Law, Personal Injury

The Supreme Court held that when Norma and James Gund suffered a violent attack after being asked by law enforcement to check on a neighbor who had called 911 requesting help, the only remedy available to the Gunds was through workers' compensation. When members of the public engage in "active law enforcement service" at the request of a peace officer, California treats those members of the public as employees eligible for workers' compensation benefits. However, workers' compensation becomes an individual's exclusive remedy for his or her injuries under state law. At issue in this case was whether the Gunds were engaged in "active law enforcement service" when they assisted law enforcement by checking on a neighbor who had called 911, walked into an active murder scene, and had their throats cut. The Supreme Court held that the Gunds engaged in active law enforcement under California Labor Code 3366 even though the peace officer allegedly misrepresented the situation, and therefore, their only remedy was through workers' compensation.

Woessner v. Labor Max Staffing

Court: Kansas Supreme Court

Docket: 119087

Opinion Date: August 28, 2020

Judge: Dan Biles

Areas of Law: Labor & Employment Law, Personal Injury

The Supreme Court affirmed the determination of the Workers Compensation Board that clear and convincing evidence showed that an employee's impairment caused by marijuana consumption did not contribute to the employee's workplace accident, holding that sufficient evidence supported the Board's finding that it was "highly probable" that the employee's impairment did not contribute to his accident. Gary Woessner died after falling fifteen feet from a jobsite catwalk for an unexplained reason. Gary's employer, Labor Max Staffing, paid workers compensation benefits for his temporary total disability and for his treatment and care, but after he died, Labor Max stopped paying not he workers compensation claim. Carmen Woessner, Gary's widow, sought benefits. An administrative law judge ruled that Gary's injuries were not compensable because Carmen failed to demonstrate by clear and convincing evidence that Gary's impairment caused by marijuana use did not contribute to his accident, injury, and death. The Board concluded that Gary's injuries were compensable and awarded the benefits, finding that, even if Gary was impaired, the impairment did not contribute to his accident. The Supreme Court affirmed the Board, holding that the drug test results were admissible and that the conclusively presumed impairment did not contribute to Gary's accident.

Plank v. Cherneski

Court: Maryland Court of Appeals

Docket: 3m/19

Opinion Date: August 5, 2020

Judge: Booth

Areas of Law: Business Law, Personal Injury

The Court of Appeals answered certified questions asking whether Maryland recognizes an independent cause of action for breach of fiduciary duty, holding that this Court recognizes an independent cause of action for breach of fiduciary duty and outlining its scope and parameters. The Court of Special appeals filed a certification pursuant to Maryland Rule 8-304 requesting that the Court of Appeals provide guidance concerning whether an independent cause of action exists for breach of fiduciary duty. The Court of Appeals answered (1) Maryland does recognize such a cause of action, and to establish a breach of fiduciary duty a plaintiff must demonstrate the existence of a fiduciary relationship, breach of the duty owed by the fiduciary to the beneficiary, and harm to the beneficiary; and (2) a court should consider the nature of the fiduciary relationship and possible remedies afforded for a breach on a case by case basis, and the remedy will depend upon the specific law applicable to the specific fiduciary relationship at issue.

Rochkind v. Stevenson

Court: Maryland Court of Appeals

Docket: 47/19

Opinion Date: August 28, 2020

Judge: Getty

Areas of Law: Civil Procedure, Personal Injury

In this case, the Court of Appeals chose to adopt Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), as the governing standard by which trial courts admit or exclude expert testimony, thus replacing Maryland's "Frye-Reed Plus" standard. The Frye-Reed standard, born of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and Reed v. State, 283 Md. 374 (1978), started in Maryland and continued to be the standard for determining the reliability of expert testimony after the United States Supreme Court decided Daubert. The Frye-Reed standard eventually morphed into the Frye-Reed Plus standard, which adopted several Daubert principles. For that reason, Appellant argued that this Court should adopt the Daubert standard and apply it to this case. The Supreme Court agreed and reversed this matter for pretrial proceedings and a new trial consistent with this opinion, holding (1) this Court adopts the Daubert standard in Maryland because those factors are persuasive in interpreting Maryland Rule 5-702; and (2) this case is remanded for the circuit court to apply this new evidentiary standard.

Seals v. Pearl River Resort & Casino

Court: Supreme Court of Mississippi

Citation: 2019-CT-00012-SCT

Opinion Date: September 3, 2020

Judge: Michael K. Randolph

Areas of Law: Civil Procedure, Government & Administrative Law, Labor & Employment Law, Personal Injury

The Mississippi Supreme Court accepted this case on certiorari review from the Court of Appeals. Shaun Seals worked for the Pearl River Resort; he alleged he was terminated for reasons relating to a work-related injury. Donna Brolick, Pearl River Resort’s director of employment compliance, was called as a witness at the hearing before an administrative judge (AJ). Brolick testified that she was previously vice president of human resources at Pearl River Resort at the time Seals’s position was phased out and he was let go in January of 2013. Brolick further testified that in 2012 the resort changed its management. Multiple upper-level positions were eliminated or consolidated. Seals’s position as director of transportation was one of several positions that were eliminated. The Workers' Compensation Commission reversed the AJ’s order. The Commission found that Seals had reached maximum medical improvement on November 13, 2015, but failed to prove any permanent disability or loss of wage-earning capacity for two reasons. The Commission found that Seals was let go for unrelated economic reasons, noting his receipt of severance pay and other benefits as well as the testimony and evidence adduced by the Resort. Seals appealed the Commission's decision to the Court of Appeals. The appellate court held the Commission was correct in its assessment of the date of maximum medical improvement but that the Commission erred by finding Seals failed to prove any loss of wage-earning capacity. The Court of Appeals reversed and remanded the decision of the Commission and directed the Commission to calculate Seals’s loss of wage-earning capacity and to award corresponding compensation. The Resort petitioned the Supreme Court for a writ of certiorari, which was granted. The Supreme Court adopted "the well-reasoned analysis of the opinion concerning maximum medical improvement," but was "constrained to reverse the Court of Appeals’ majority regarding loss of wage-earning capacity. Sufficient evidence supported the Commission’s decision that Seals had not suffered loss of wage-earning capacity." The Commission's decision was reinstated in toto.

Hampton v. Meyer

Court: Supreme Court of Virginia

Docket: 191194

Opinion Date: August 27, 2020

Judge: William C. Mims

Areas of Law: Civil Procedure, Personal Injury

The Supreme Court held that the misidentification of a defendant in a complaint was a misnomer, not a misjoinder, and therefore, the filing of a new complaint to correct the error after a nonsuit was not barred by the statute of limitations. Calvin Hampton, who was injured in a car accident, filed a negligence complaint seeking damages. The complaint identified the driver of the other vehicle as Michael Meyer. Later, however, Hampton learned that Noah Meyer, and not his father Michael, had been driving the vehicle at the time of the collision. Hampton subsequently obtained an order nonsuiting his complaint. Hampton then filed a new complaint asserting that, under this Court's decision in Richmond v. Volk, 291 Va. 60 (2016), the use of the wrong name in his complaint was merely a misnomer rather than a misjoinder. Noah filed a plea in bar asserting that the new complaint was time-barred. The circuit court sustained the plea in bar, ruling that naming Michael in the original complaint was a misjoinder, not a misnomer. The Supreme Court reversed, holding (1) the misidentification of the driver in the original complaint were merely a misnomer, not a misjoinder; and (2) therefore, under Volk, the new complaint was not barred by the statute of limitations.