“Might as Well Carry a Purse with That Mask, Joe”: COVID-19, Toxic Masculinity, and the Sad State of National Politics

JOANNA L. GROSSMAN, LINDA C. MCCLAIN

SMU Dedman School of Law professor Joanna L. Grossman and Boston University law professor Linda C. McClain comment on COVID-19, toxic masculinity, and the state of national politics today. Grossman and McClain contrast President Trump’s reckless bravado that endangers the lives of Americans with the empathy of Democratic presidential nominee former Vice President Joe Biden’s in asking people to be patriotic by doing their part by wearing masks to protect other Americans.

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Should Department of Justice Lawyers Defy William Barr?

AUSTIN SARAT

Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on an open letter addressed to the 100,000 professionals working in the U.S. Department of Justice and published by Lawyers Defending Democracy. In the letter, more than 600 members of the bar from across the United States call on their DOJ colleagues to refrain from “participating in political misuse of the DOJ in the elction period ahead.” Sarat argues that the letter rightly recognizes that Attorney General Barr’s blatant partisanship endangers the integrity of the DOJ itself and its role in preserving the rule of law.

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Ouellette v. Beaupre

Court: US Court of Appeals for the First Circuit

Docket: 19-2069

Opinion Date: October 7, 2020

Judge: Kermit Victor Lipez

Areas of Law: Civil Rights, Criminal Law, Personal Injury

The First Circuit vacated the decision of the district court granting summary judgment for Defendants and dismissing Plaintiff's 42 U.S.C. 1983 action on the grounds that Plaintiff's claims were time barred, holding that there was no basis for summary judgment on the record. Plaintiff filed suit against the City of Biddeford, Captain Norman Gaudette with the Biddeford Police Department (BPD), and Chief of Police Roger Beaupre, alleging that Gaudette sexually abused him as a teenager in the later 1980s and that the City and Baupre were deliberately indifferent to Gaudette's violation of his constitutional rights when Plaintiff reported the abuse. Defendants argued that the suit was barred by the statute of limitations. In response, Plaintiff asserted that his claims did not accrue until 2015, when he learned that the BPD and Baupre allegedly knew of at least one other report of Gaudette sexually abusing a minor that pre-dated Plaintiff's experience. The district court granted summary judgment for Defendants. The First Circuit reversed, holding (1) a reasonable jury could find that Plaintiff had no duty to diligently investigate his claims against Defendants before 2015; and (2) therefore, the district court erred in concluding as a matter of law that Plaintiff's claims accrued at the time of his injury in the late 1980s.

Scottsdale Insurance Co. v. United Rentals, Inc.

Court: US Court of Appeals for the First Circuit

Docket: 18-1588

Opinion Date: October 2, 2020

Judge: Boudin

Areas of Law: Insurance Law, Personal Injury

In this insurance coverage dispute, the First Circuit vacated the decision of the district court holding that United Rentals, Inc. was entitled to defense costs from Scottsdale Insurance Company as an additional insured and that the Scottsdale policy afforded additional insured coverage to United Rentals for its direct and vicarious liability but that this coverage was excess above United Rentals' own coverage under its policies with ACE American Insurance Company, holding that the district court erred in part. Gomes Services, Inc. contracted with United Rentals to rent an electric boom lift. While operated by a Gomes employee, the lift struck and injured Guy Ayotte. Ayotte sued United Rentals and Gomes. At the time of the accident, Gomes was insured by Scottsdale under a policy that extended coverage to any party that Gomes was required by written contract to add as an "additional insured." United Rentals requested that Scottsdale defend and indemnify United Rentals. After the district court made its ruling both parties appealed. The First Circuit held (1) Scottsdale had a duty to indemnify United Rentals in the Ayotte action for both its direct and vicarious liability; and (2) United Rentals' relevant policies did not qualify as "valid and collectible insurance," and therefore, the Scottsdale policy afforded coverage to United Rentals.

Dean v. McKinney

Court: US Court of Appeals for the Fourth Circuit

Docket: 19-1383

Opinion Date: October 2, 2020

Judge: Roger L. Gregory

Areas of Law: Civil Rights, Constitutional Law, Personal Injury

Anderson County, South Carolina Deputy McKinney was on patrol when Deputy Lollis requested assistance with a traffic stop. Supervisor Hamby issued a “Code 3” emergency response; Code 3 is the only time officers are permitted to exceed posted speed limits or otherwise disregard traffic regulations. McKinney activated his lights and siren and proceeded to Lollis’ location. Seconds later, Lollis radioed that units could “back down on emergency response but continue to him 'priority.’” Hamby canceled Code 3. McKinney acknowledged the cancellation, “cut back to normal run,” deactivated his lights and siren, and “began to reduce" his speed. Approximately two minutes after Hamby canceled the Code 3, McKinney lost control of his vehicle on a curved, unlit section of the road, crossed the center line, and struck Harkness’s sedan nearly head-on. Harkness sustained extensive, severe orthopedic and neurological injuries. An accident reconstruction determined that McKinney was traveling at least 83 miles per hour when he began to skid, in a 45 mile-per-hour speed limit zone. McKinney had previously received remedial counseling following his involvement in incidents involving his operation of police vehicles. In a suit under 42 U.S.C. 1983 alleging that McKinney violated Harkness’s substantive due process rights by exhibiting “conscience-shocking deliberate indifference” to Harkness’s life and safety, McKinney moved for summary judgment, asserting qualified immunity. The Fourth Circuit affirmed the denial of McKinney’s motion. A reasonable jury could conclude that McKinney violated Harkness’s clearly established substantive due process right.

Jordan v. Maxfield & Oberton Holdings, LLC

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-60364

Opinion Date: October 7, 2020

Judge: Carl E. Stewart

Areas of Law: Personal Injury

After their twenty-two month old son suffered terrible injuries by ingesting eight Buckyball magnets, plaintiffs filed suit against M&O for manufacturing and distributing Buckyball magnets in the United States. The jury returned a verdict for M&O and plaintiffs moved for a new trial and for relief from judgment, which the district court denied. The Fifth Circuit affirmed and held that the district court did not abuse its discretion in determining that plaintiffs failed to demonstrate that its evidentiary rulings constituted prejudicial error. In this case, the district court did not commit prejudicial error by granting the motion in limine and otherwise excluding post-sale evidence at trial. The court also held that the district court did not err in denying plaintiffs' motion to set aside the final judgment where plaintiffs failed to proffer bias evidence. Finally, the court held that the district court did not err in denying plaintiffs' request for a preemption jury instruction.

Pineda v. Hamilton County

Court: US Court of Appeals for the Sixth Circuit

Docket: 19-3839

Opinion Date: October 2, 2020

Judge: Murphy

Areas of Law: Civil Rights, Constitutional Law, Personal Injury

Pineda visited a Cincinnati nightclub that used private bouncers and off-duty Hamilton County deputies for parking lot security. Three deputies worked that night, in uniform. Around 2:30 a.m., a fight broke out. Pineda saw individuals arguing with a bouncer near the door and told them to calm down. The bouncer hit Pineda in the face, chipping two teeth. According to Pineda, a deputy who was behind him knocked him unconscious by striking him on the back of the head with his baton. Pineda never identified the culprit. Three of Pineda’s friends generally corroborated his recollection. The deputies claim that they were in different areas and did not witness what happened to Pineda. Pineda’s injuries were significant. At the hospital, an officer wrote a report indicating that Pineda said that a bouncer assaulted him and did not mention a deputy. Pineda sued the deputies and the Sheriff’s Office under 42 U.S.C. 1983, alleging excessive force claim and that the Sheriff “ratified” the excessive force by failing to meaningfully investigate. The Sixth Circuit affirmed the rejection of the claims. Pineda was required to produce evidence from which a reasonable jury could find it more likely than not that each defendant was “personally involved” in the excessive force. Pineda did not identify the deputy who struck him; there was no allegation of a causal connection between the unidentified deputy and any other defendant’s actions. The investigation did not contribute to Pineda’s injury.

Doe v. Yim

Court: California Courts of Appeal

Docket: B299856(Second Appellate District)

Opinion Date: October 6, 2020

Judge: Nora M. Manella

Areas of Law: Legal Ethics, Personal Injury

The Court of Appeal affirmed the trial court's grant of respondent's motion to disqualify appellant's attorney, who is also appellant's mother and respondent's ex-wife, from representing appellant in all phases of tort litigation based primarily on the advocate-witness rule. In this case, appellant alleged that respondent sexually abused her from the time she was nine to 13 years old. The court held that the trial court reasonably concluded that the attorney is nearly certain to be a key witness at trial and thus the trial court acted within its discretion by effectuating the advocate-witness rule's purpose of avoiding factfinder confusion. Therefore, the trial court did not abuse its discretion in applying the rule to disqualify the attorney not only at trial, but also in depositions and pretrial evidentiary hearings at which the attorney is likely to testify. The trial court also acted within its discretion in disqualifying the attorney from representing appellant in all other phases of the litigation on the ground of the attorney's potential misuse of confidential information obtained through her 17-year marriage with respondent.

Shipp v. Western Engineering, Inc.

Court: California Courts of Appeal

Docket: C087371(Third Appellate District)

Opinion Date: October 5, 2020

Judge: William J. Murray, Jr.

Areas of Law: Construction Law, Personal Injury

Defendants were performing road construction work, implementing a “reversing lane closure” traffic control, reducing traffic to one lane. A flagger to control northbound traffic was positioned at the south end of the reversing lane closure on Latrobe Road, north of where it intersected with Ryan Ranch Road. Because the flagger was positioned north of the intersection, when the flagger stopped northbound traffic, that traffic could back up, extending south into the intersection. Plaintiff Kevin Shipp was driving south on Latrobe Road when he came to a stop behind two other vehicles. The vehicle two cars ahead of plaintiff was attempting to turn left onto Ryan Ranch Road, but it could not because northbound traffic, stopped by the flagger at the south end of the reversing lane closure, was stopped in the intersection. Seconds after plaintiff stopped, a vehicle driven by George Smithson rear-ended plaintiff’s vehicle. This case presented the question of whether a highway contractor controlling traffic on a public highway owed a duty of care to a motorist who was rear-ended when forced to stop behind a vehicle that was unable to turn left at an intersection that was blocked by stopped traffic controlled by the contractor. The Court of Appeal concluded the contractor here did indeed owe a duty of care.

Oswald v. Costco

Court: Idaho Supreme Court - Civil

Docket: 47261

Opinion Date: October 5, 2020

Judge: Roger S. Burdick

Areas of Law: Business Law, Personal Injury, Real Estate & Property Law

Plaintiffs John Oswald and Nancy Poore appealed a district court judgment granting summary judgment in favor of defendant Costco Wholesale Corporation ("Costco"). In February 2017, Oswald and Poore were walking on that walkway when an elderly driver drove onto a pedestrian walkway that bisected two perpendicular rows of ADA-accessible parking spaces, striking Oswald and pinning him against a vehicle parked on the opposite side, causing Oswald to suffer significant injuries. Plaintiffs sued Costco alleging: (1) premises liability; (2) negligence and willful wanton conduct; (3) negligent infliction of emotional distress; and (4) intentional infliction of emotional distress. After the district court resolved a discovery dispute in Costco’s favor, Costco moved for summary judgment. In granting the motion, the district court ruled that Costco had no notice that its walkway was a dangerous condition and, therefore, owed no duty to redesign it or warn pedestrians about it. The district court entered judgment dismissing the Plaintiffs’ claims with prejudice. After review, the Idaho Supreme Court determined the district court's decision improperly focused on the duty to maintain safe premises to the exclusion of the duty to use reasonable care. Furthermore, the Court found Plaintiffs put forward sufficient evidence to create a disputed issue of material fact on foreseeability and causation, thereby precluding the award of summary judgment. Judgment was reversed and the matter remanded for further proceedings.

Glover v. Allstate Property & Casualty Insurance Co.

Court: Supreme Court of Indiana

Docket: 20S-CT-23

Opinion Date: October 8, 2020

Judge: Slaughter

Areas of Law: Insurance Law, Personal Injury

In this insurance dispute stemming from a fatal car collision, the Supreme Court vacated the judgment of the trial court granting summary judgment in favor of Insurer, holding that the decedent's estate was entitled to summary judgment on the issues of whether the decedent was an "insured person" and the availability of $25,000 in further UIM coverage under the decedent's parents' Allstate policy. Shelina Glover died in a car accident. The insurers of the two responsible drivers paid policy limits, and Glover's estate received separate settlements for underinsured-motorist (UIM) coverage from Glover's own carrier and from that of Glover's husband, who was driving the vehicle on the day of the accident. The Estate requested further UIM coverage under Glover's parents' Allstate policy. The trial court granted summary judgment for Allstate, concluding that the policy's offset and anti-stacking provisions barred the Estate from recovery because the amount the Estate received from other insurers exceeded the limits under the policy. The Supreme Court vacated the judgment, holding (1) Glover was an "insured person" under the policy; and (2) the Estate's UIM settlements were not offset against the policy's UMI limit, and therefore, the Estate had an additional $25,000 UIM coverage available to it under the Allstate policy.

Riddle v. Cress

Court: Supreme Court of Indiana

Docket: 20S-PL-573

Opinion Date: October 2, 2020

Judge: Per Curiam

Areas of Law: Civil Procedure, Personal Injury

The Supreme Court affirmed the judgment of the trial court granting Defendants relief from a default judgment, holding that the trial court's assessments of the parties' credibility and demeanor were sufficient to establish at least "slight evidence" of excusable neglect. Plaintiff sued Defendants alleging that certain statements Defendants made constituted defamation and false reporting. Because Defendants did not enter appearances or respond to the complaint the trial court granted default judgment to Plaintiffs. The trial court granted Defendants' motion for relief from the default judgment, concluding that Defendants were sincerely confused about their obligation to respond. The Supreme Court affirmed and remanded the matter to the trial court for further proceedings, holding that the trial court's fact-sensitive judgments showed that Defendants were entitled to relief.