Latest 12 Cases This Week: Finch v. Covil Corp. (4th Cir.), Scottsdale Insurance Co. v. Columbia Insurance Group, Inc (7th Cir.), Miller v. Union ...

Drafted and Shafted: Who Should Complain About Male-Only Registration?

SHERRY F. COLB

Cornell law professor comments on a recent opinion by the U.S. Court of Appeals for the Fifth Circuit holding that requiring men but not women to register for the draft is constitutional under mandatory U.S. Supreme Court precedents. Specifically, Colb considers what the U.S. Supreme Court should do if it agrees to hear the case and more narrowly, whether the motives of the plaintiffs in that case bear on how the case should come out.

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Finch v. Covil Corp.

Court: US Court of Appeals for the Fourth Circuit

Docket: 19-1594

Opinion Date: August 24, 2020

Judge: Diana Jane Gribbon Motz

Areas of Law: Personal Injury

Plaintiff filed a wrongful death action on behalf of herself and the estate of her late husband, alleging that defendants manufactured, installed, or supplied asbestos-containing products that caused his mesothelioma and resulting death. After the jury found Covil liable and awarded plaintiff $32.7 million in compensatory damages, Covil appealed. The Fourth Circuit affirmed, holding that the district court did not abuse its discretion by instructing the jury as to proximate cause. In this case, the district court's detailed instruction on substantial factor causation gave proper guidance to the jury to determine whether Covil's insulation constituted a substantial factor in the husband's mesothelioma, and it embodies the "general principles of law" set forth by Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162 (4th Cir. 1986). The court also held that the district court did not abuse its discretion by refusing to reduce the award where Covil waived its federal law argument; the district court did not abuse its discretion in determining that the verdict was not excessive as a matter of law; and without evidence of passion or prejudice, the court cannot replace the jury's considered judgment with its own, or with an amount that Covil would prefer.

Scottsdale Insurance Co. v. Columbia Insurance Group, Inc

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-3315

Opinion Date: August 26, 2020

Judge: Daniel Anthony Manion

Areas of Law: Construction Law, Insurance Law, Personal Injury

TDH’s contract to provide HVAC services at a Chicago construction site contained provisions agreeing to indemnify Rockwell, the owner. TDH provided a Certificate of Liability Insurance, identifying Columbia as the commercial general liability insurer, TDH as the insured, and Rockwell and Prairie (the manager) as additional insureds. While working at the site, TDH’s employee Guzman fell 22 feet through an unguarded opening in the second floor, sustaining serious injuries. Guzman sued Rockwell, Prairie, and others. Guzman did not sue TDH. Several defendants filed third-party complaints against TDH for contribution. Scottsdale insured Rockwell and has defended Rockwell and Prairie. Scottsdale filed suit, wanting Columbia to take over their defense. The district court declared that Columbia owes a duty to defend Prairie and Rockwell, ordered Columbia to pay Scottsdale $50,000 for defense costs through August 2019, and left the issue of indemnity for another day. The Seventh Circuit affirmed. The Columbia policy limitation that another organization would only be an additional insured with respect to liability arising out of TDH’s ongoing operations performed for that other organization does not eliminate Columbia’s duty to defend. Prairie’s and Rockwell’s liability for the fall potentially arises in part out of TDH’s then-ongoing operations performed for Prairie and Rockwell. It does not matter that the underlying suit does not name TDH. The underlying allegations do not preclude the possibility of coverage.

Miller v. Union Pacific Railroad Co.

Court: US Court of Appeals for the Eighth Circuit

Docket: 19-2536

Opinion Date: August 26, 2020

Judge: C.J. Williams

Areas of Law: Personal Injury, Transportation Law

After plaintiff was injured while serving as an engineer for UP when the train he was operating partially derailed because of a misaligned switch, he filed suit under the Federal Employers' Liability Act (FELA), alleging claims of FELA negligence per se and negligence. The Eighth Circuit affirmed the district court's denial of plaintiff's motion for partial summary judgment and grant of UP's motion for summary judgment. In regard to plaintiff's negligence per se claim, the court held that plaintiff failed to present any evidence that would raise a genuine issue of material fact that UP "played any part, even the slightest" to cause the switch to be moved from its designated position. Rather, the evidence showed the switch was misaligned by a criminal act of a third party. Furthermore, there is no evidence in the record that any act of a UP employee contributed to the misalignment. Therefore, UP committed no act violating the regulation requiring switches to be aligned per the railroad's written policy. In regard to the negligence claim, the court held that UP cannot be liable under a negligence theory for failing to properly align the switch unless it knew or had reason to know it was misaligned. In this case, there was no evidence that UP was aware the switch was not properly aligned. Likewise, plaintiff presented no evidence that UP failed to reasonably protect its keys or had reason to know that the security of its keys or locks were compromised; plaintiff proffered no evidence of an industry standard or other evidence that could lead a jury to find UP negligent for failing to remove the switch or track; and plaintiff failed to point to any evidence that would establish that UP was negligent if it failed to install additional or different devices to prevent someone from tampering with the switch.

Synergies3 Tec Services, LLC, et al. v. Corvo

Court: Supreme Court of Alabama

Docket: 1170765

Opinion Date: August 21, 2020

Judge: Stewart

Areas of Law: Labor & Employment Law, Personal Injury, Real Estate & Property Law

Synergies3 Tec Services, LLC ("Synergies3"), and DIRECTV, LLC ("DIRECTV"), appealed a circuit court judgment in favor of Lisa Corvo and Thomas Bonds and against Synergies3 and DIRECTV based on the doctrine of respondeat superior and a claim alleging negligent hiring, training, and supervision. Corvo and her fiance Bonds sued Daniel McLaughlin, Raymond Castro, and DIRECTV in the trial court, asserting claims of conversion and theft as to a diamond that had been removed from an engagement ring and $160 cash that, they alleged, had been taken from the master bedroom of Corvo's house on Ono Island when McLaughlin and Castro, employees of Synergies3, installed DIRECTV equipment in Corvo's house. Corvo and Bonds asserted the conversion and theft claims against DIRECTV under the doctrine of respondeat superior and, in addition, asserted claims against DIRECTV of negligent and wanton hiring, training, and supervision. They also sought damages for mental anguish and punitive damages. While the Alabama Supreme Court found the trial court did not err in denying Synergies3 and DIRECTV's motion for a judgment as a matter of law as to Corvo and Bonds's claim of negligent hiring, training, and supervision of Castro, but that punitive damages were improperly awarded. Judgment was reversed insofar as it held Synergies3 and DIRECTV vicariously or directly liable on the claims of theft and conversion, and insofar as it awarded punitive damages. The judgment was affirmed insofar as it held Synergies3 and DIRECTV liable for the negligent hiring, training, and supervision of Castro and awarded compensatory and mental-anguish damages.

Frausto v. Department of the California Highway Patrol

Court: California Courts of Appeal

Docket: A156552(First Appellate District)

Opinion Date: August 21, 2020

Judge: Kline

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

Cornejo died of a methamphetamine overdose at Highland Hospital after being arrested by California Highway Patrol officers during a traffic stop and observed to put in his mouth and swallow something that he insisted was gum, not drugs. Cornejo declined repeated offers of medical attention and no symptoms of drug intoxication were observed until after he was transferred to the custody of deputies at the jail. A jury ruled in favor of Cornejo’s parents in a suit for wrongful death predicated on the negligence of the officers who took Cornejo to jail rather than to the hospital, under the Tom Bane Civil Rights Act (Civ. Code, 52.1). The court of appeal affirmed, rejecting the defendants’ arguments that the officers had no duty to obtain a medical examination for Cornejo under the circumstances; that they fulfilled the scope of any duty they may have had by taking him to jail with on-site medical staff; that their failure to take him to the hospital was not a proximate cause of his death; and that the trial court erred in ruling the jury could not consider Cornejo’s intentional act of swallowing the methamphetamine in allocating comparative fault and in denying defendants’ motion to exclude evidence that the officers attempted to coerce an admission to possession of a controlled substance by conditioning medical treatment on Cornejo’s admitting he swallowed a controlled substance.

Marshall v. Webster

Court: California Courts of Appeal

Docket: C088240(Third Appellate District)

Opinion Date: August 27, 2020

Judge: Krause

Areas of Law: Personal Injury

Plaintiffs Richard and Susan Marshall sued for defamation and intentional infliction of emotional distress, alleging that defendant Daniel Webster made maliciously false and defamatory statements about them in an electronic book and on social media. They alleged that defendant, a reporter and author, maliciously and with reckless disregard for the truth, published false statements about them, their political activities, and about a lawsuit they filed against the town in which they live. These statements, which appeared on Facebook, and in an electronic book available on Amazon’s Kindle service and on eBay, were alleged to have caused them severe emotional distress and damaged their reputations in the community. The trial court granted defendant’s special motion to strike the complaint pursuant to Code of Civil Procedure section 425.16, California’s anti-SLAPP statute. The court’s order provided that defendant was entitled to attorney fees under the statute and, in August 2018, it awarded him $79,000 in fees. On appeal, plaintiffs challenged the dismissal of their complaint and the award of attorney fees. In the published portion of its opinion, the Court of Appeal concluded the trial court’s order granting defendant’s special motion to strike the complaint was a final determination of the rights of the parties, thus constituting a judgment from which plaintiffs failed timely to perfect an appeal. With respect to the attorney fees order, the Court found no abuse of discretion and affirmed.

Shih v. Starbucks Corp.

Court: California Courts of Appeal

Docket: B299329(Second Appellate District)

Opinion Date: August 24, 2020

Judge: Segal

Areas of Law: Personal Injury, Products Liability

Plaintiff filed suit against Starbucks after she spilled a cup of hot tea she purchased from a Starbucks store and suffered second degree burns, alleging causes of action for products liability and negligence. The Court of Appeal affirmed the district court's grant of summary judgment, holding that any alleged defect in the Starbucks cup did not cause plaintiff's injuries. The panel held that Starbucks met its burden of negating an element of plaintiff's products liability cause of action by showing the alleged defects in the cup of tea it served her were not a proximate cause of her injuries. In this case, plaintiff spilled her drink because, after she walked to the table with the two hot drinks in her hands, put her drink down, and removed the lid, she bent over the table, pushed out her chair, lost her balance, grabbed the table to avoid failing, and knocked her drink off the table. The court also held that Starbucks' alleged negligence by serving the allegedly defective cup was not a proximate cause of plaintiff's injuries.

Smith v. Franklin Township Community School Corp.

Court: Supreme Court of Indiana

Docket: 20S-CT-98

Opinion Date: August 25, 2020

Judge: Loretta H. Rush

Areas of Law: Personal Injury

The Supreme Court affirmed the judgment of the trial court denying Appellant's motion requesting reinstatement of his lawsuit against Franklin Township Community School Corporation, holding that the court did not abuse its discretion when it denied Appellant's motion for reinstatement. Nine days before the applicable statute of limitations expired, Appellant filed a negligence lawsuit against the School. The court dismissed the complaint after Appellant failed to respond to the School's motion to dismiss. Months later, Appellant filed three documents requesting reinstatement of his case. The trial court summarily denied the motion. The Supreme Court affirmed, holding that Appellant's request was in actuality an impermissible collateral attack on the trial court's dismissal order, and therefore, the court did not abuse its discretion in denying Appellant's motion.

Thomas v. University Medical Center, Inc.

Court: Kentucky Supreme Court

Docket: 2018-SC-0454-D

Opinion Date: August 20, 2020

Judge: Michelle M. Keller

Areas of Law: Medical Malpractice, Personal Injury

The Supreme Court affirmed the decision of the court of appeals affirming the decision of the circuit court excluding from evidence a Root Cause Analysis (RCA) and granting a directed verdict in favor of Neurosurgical Institute of Kentucky, P.S.C., holding that any error committed by the trial court was harmless. Plaintiff, in his capacity as administrator of the decedent's estate and in his individual capacity, filed a medical negligence suit against Defendants, a private neurosurgery practice, a neurosurgical resident, a hospital, and other medical professionals. During discovery, the hospital filed a motion in liming to exclude the RCA report as a subsequent remedial measure under Ky. R. Evid. 407. The trial court granted the motion. After a trial, the court granted a directed verdict in favor of the defendants. The court of appeals affirmed. The Supreme Court affirmed, holding (1) the trial court erred in excluding the RCA under Rule 407, but the error was harmless; (2) the court of appeals' Rule 407 analysis was not improper, and the RCA was properly excluded under Ky. R. Evid. 403; and (3) the trial court did not err in excluding the RCA when offered for impeachment purposes.

American Radiology Services, LLC v. Reiss

Court: Maryland Court of Appeals

Docket: 50/19

Opinion Date: August 24, 2020

Judge: Booth

Areas of Law: Medical Malpractice, Personal Injury

In this medical malpractice action, the Court of Appeals affirmed the judgment of the Court of Special Appeals reversing the judgment of the trial court holding that Defendants had not breached the standard of care, holding that the trial court erred in allowing Defendants to raise and argue the issue of non-party negligence and to submit the issue to the jury. Defendant-physicians in this case denied liability but asserted, as an alternative causation theory, that the negligence of a non-party physician was a cause of Plaintiff's injuries. At issue was whether a jury may consider whether a non-party physician was negligence and caused injury to Plaintiff without the expert testimony necessary to establish medical negligence when medical negligence is raised as a defense. The Supreme Court held (1) expert testimony is required to establish medical negligence and causation when such matters are outside the common knowledge of jurors; (2) to the extent a defendant elects to raise non-party medical negligence as part of its defense, the defendant has the burden to produce admissible evidence to allow a jury to make a finding on that issue; and (3) the trial court erred in allowing Defendant to raise and argue the issue of non-party negligence under these circumstances.

Lunsford v. Sterilite of Ohio, LLC

Court: Supreme Court of Ohio

Citation: 2020-Ohio-4193

Opinion Date: August 26, 2020

Judge: Sharon L. Kennedy

Areas of Law: Labor & Employment Law, Personal Injury

The Supreme Court held that when an at-will employee consents, without objection, to the collection of his or her urine sample under the "direct-observation method," the at-will employee has no cause of action for common-law invasion of privacy. Plaintiffs were former and current at-will employees of Defendant. Defendant had a workplace substance-abuse policy requiring employees to submit a urine sample for drug testing under the direct-observation method, under which a same-sex monitor was required to accompany the employee to the restroom to visually observe the employee produce the urine sample. While Plaintiffs did not know at the time they consented that their urine samples would be collected under the direct-observation method they proceeded with the drug test under the direct-observation method without objection. Plaintiffs filed a complaint alleging that Defendant violated their privacy by requiring them to submit their urine samples under the direct-observation method. The trial court granted judgment for Defendant, concluding that Plaintiffs had not stated a valid claim for invasion of privacy. The court of appeals reversed. The Supreme Court reversed, holding that the trial court correctly dismissed Plaintiffs' invasion-of-privacy claim for failure to state a claim upon which relief can be granted.

Luna v. Luna

Court: Utah Supreme Court

Citation: 2020 UT 63

Opinion Date: August 20, 2020

Judge: Pearce

Areas of Law: Personal Injury

The Supreme Court reversed the decision of the court of appeals affirming the order of the district court granting summary judgment in favor of Maria Luna on Luis Luna's negligence claim, holding that the court of appeals improperly adopted the judicial admission doctrine as applied to a party's deposition testimony. Luis was a passenger in his sister Maria's car when it collided with a vehicle driven by Antonio Arias in a Salt Lake City intersection. Luis sued Maria and Antonio. Maria moved for summary judgment based in part on Luis's testimony that Maria had entered the intersection on a green light. Luis sought to introduce Antonio's testimony that he had the green light, but the district court refused to allow Luis to create a genuine issue of material fact by introducing evidence contradicting his own sworn deposition testimony. The district court granted summary judgment for Maria. The court of appeals affirmed, concluding that Luis's statement should be considered a judicial admission not capable of being rebutted by other evidence. The Supreme Court reversed and remanded the case for further proceedings, holding that a party's deposition testimony is like any other evidentiary admission and can be contradicted with other credible evidence.