Whence Cometh Evil? Making Sense of Human Suffering and COVID-19

CHARLES E. BINKLEY

Surgeon and bioethicist Charles E. Binkley, MD, offers a perspective on how we might make sense of suffering, particularly in light of the present COVID-19 pandemic. Binkley suggests that through suffering, we are paradoxically able to find good, and in this instance, that good might be the practice of social reciprocity.

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MMR Constructors, Inc. v. Director, Office of Workers' Compensation Programs

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-60027

Opinion Date: March 26, 2020

Judge: W. Eugene Davis

Areas of Law: Admiralty & Maritime Law, Personal Injury

The Fifth Circuit affirmed the Board's order awarding benefits to claimant under the Longshore and Harbor Workers' Compensation Act. The court held that claimant was on navigable waters at the time of injury and thus his case was controlled by Dir., OWCP, U.S. Dep't of Labor v. Perini N. River Assocs., 459 U.S. 297, 299 (1983). In this case, because claimant was regularly employed by MMR on navigable waters and, under Perini, meets the "employee" definition, it follows that MMR had at least one employee engaged in maritime employment.

Green Plains Otter Tail, LLC v. Pro-Environmental, Inc.

Court: US Court of Appeals for the Eighth Circuit

Docket: 18-3357

Opinion Date: March 20, 2020

Judge: William Duane Benton

Areas of Law: Personal Injury, Products Liability

Green Plains, owner and operator of an ethanol production facility, filed suit against PEI for negligence and products liability, alleging defective design and failure to adequately instruct and warn users. The district court granted summary judgment to PEI. The Eighth Circuit held that reasonable minds could differ about whether the regenerative thermal oxidizer (RTO) was defective, and thus Green Plains submitted sufficient evidence of a defective design to survive summary judgment. Furthermore, reasonable minds could disagree as to whether PEI could foresee that a company would view the "suggested" maintenance as mandatory, or would ignore it due to the effort required. Therefore, under Minnesota law, the court held that PEI was not entitled to summary judgment on proximate cause. Finally, the court held that the district court properly granted summary judgment on the failure-to-warn claim. Accordingly, the court affirmed in part, reversed in part, and remanded for further proceedings.

Kerrivan v. R.J. Reynolds Tobacco Co.

Court: US Court of Appeals for the Eleventh Circuit

Docket: 18-13045

Opinion Date: March 24, 2020

Judge: Jill Pryor

Areas of Law: Personal Injury

The Tobacco Companies challenged the amount of damages a jury awarded to plaintiff for his intentional tort claims, and the sufficiency of the evidence to prove his fraudulent concealment and conspiracy to fraudulently conceal claims. The court held that the district court did not abuse its discretion by denying the Tobacco Companies' motion for a new trial or remittitur, because the compensatory damages award was not excessive under Florida law. The court also held that the district court correctly denied the Tobacco Companies' motion for judgment as a matter of law on the constitutionality of the punitive damages award, because the award was not constitutional excessive. Finally, the court held that the district court did not err by allowing plaintiff's fraud-based claims to go to the jury.

Lovely, et al. v Baker Hughes, Inc., et al.

Court: Alaska Supreme Court

Docket: S-16967

Opinion Date: March 20, 2020

Judge: Peter J. Maassen

Areas of Law: Civil Procedure, Construction Law, Contracts, Insurance Law, Labor & Employment Law, Personal Injury

A construction contractor’s employees were injured on the job and received workers’ compensation benefits from their employer. The workers later brought a negligence suit against three other corporations: the one that had entered into the construction contract with their employer, that corporation’s parent corporation, and an affiliated corporation that operated the facility under construction. The three corporations moved for summary judgment, arguing that all three were “project owners” potentially liable for the payment of workers’ compensation benefits and therefore were protected from liability under the exclusive liability provision of the Alaska Workers’ Compensation Act. The superior court granted the motion, rejecting the workers’ argument that status as a “project owner” was limited to a corporation that had a contractual relationship with their employer. After review, the Alaska Supreme Court concluded a project owner, for purposes of the Act, "must be someone who actually contracts with a person to perform specific work and enjoys the beneficial use of that work." Furthermore, the Court found the workers raised issues of material fact about which of the three corporate defendants satisfied this definition. Judgment was therefore reversed and the matter remanded for further proceedings.

McCormick v. Chippewa, Inc.

Court: Alaska Supreme Court

Docket: S-16619

Opinion Date: March 20, 2020

Judge: Joel H. Bolger

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

In August 2007 Brent McCormick was injured while working aboard FV CHIPPEWA, owned by Chippewa,Inc. McCormick filed a lawsuit against Chippewa and Louis Olsen, the vessel's captain in August 2010. McCormick initiated settlement negotiations with the employer's insurance company for "policy limits." Under the insurance policy there was a per-occurrence coverage limit. During negotiations, counsel for McCormick and the insurance company discussed the terms of the settlement over a phone call; the parties provided inconsistent accounts of which issues were addressed on the call. McCormick's counsel’s affidavit asserted he raised the issue of the number of occurrences and the parties agreed to leave it unresolved. Shortly after this phone call, the parties reached a purported settlement agreement. McCormick filed suit to enforce the purported settlement agreement for policy limits based on three occurrences. The insurance company filed for summary judgment, asserting that the agreement was for policy limits of a single occurrence. The superior court granted summary judgment for the insurance company, concluding that its interpretation of the purported settlement agreement was correct. On appeal, McCormick argued the superior court abused its discretion on evidentiary and discovery issues and erred by granting the insurer’s motion for summary judgment. After review, the Alaska Supreme Court found no abuse of discretion. But the Court did find an issue of fact barring summary judgment due to the contradictory accounts of the phone call. A reasonable person could have discerned a genuine factual dispute on a material issue because this phone call could have either: (1) provided extrinsic evidence of the meaning of the settlement agreement, or (2) indicated there was no meeting of the minds on an essential term, and thus no enforceable agreement was formed. Therefore, summary judgment was inappropriate and the matter was remanded for further proceedings.

Lopez v. Ledesma

Court: California Courts of Appeal

Docket: B284452(Second Appellate District)

Opinion Date: March 24, 2020

Judge: Elwood G.H. Lui

Areas of Law: Civil Procedure, Personal Injury

In the absence of any clear legislative statement on the issue, a physician assistant acts within the scope of his or her license for purposes of Civil Code section 3333.2, subdivision (c)(2) if he or she has a legally enforceable agency agreement with a supervising physician, regardless of the quality of actual supervision. After plaintiff prevailed in her negligence claims, the trial court awarded noneconomic damages, but reduced them under section 3333.2, subdivision (b). The Court of Appeal affirmed the trial court's reduction of the damages awarded, rejecting plaintiff's claim that the negligence of the physician assistants is included within the scope of the proviso excluding certain conduct from statutory damages because the physician assistants acted without the supervision of a physician in violation of the governing statutes and regulations.

Reynaud v. Technicolor Creative Services USA

Court: California Courts of Appeal

Docket: B290836(Second Appellate District)

Opinion Date: March 24, 2020

Judge: Judith Ashmann-Gerst

Areas of Law: Labor & Employment Law, Personal Injury

The Court of Appeal affirmed the trial court's judgment in favor of plaintiffs on their negligence cause of action against Technicolor. The jury found that Technicolor had been negligent and that its negligence was a substantial factor in causing harm to plaintiffs, assigning 95 percent responsibility to Technicolor. After the trial court reduced the jury's damages awards, judgment was entered in the amount of $803,838.30 for economic damages and $2,083,920 for noneconomic damages, for a total award of $2,887,758.30. The court held that substantial evidence supported the verdict where there was substantial evidence that Technicolor could have satisfied the labor verification requirement, and that Technicolor's negligence left plaintiffs in a worse position. The court also held that workers' compensation exclusivity was inapplicable and rejected Technicolor's remaining claims.

In RE: Asbestos Litigation

Court: Delaware Supreme Court

Docket: 86, 2019

Opinion Date: March 24, 2020

Judge: Seitz

Areas of Law: Civil Procedure, Personal Injury

In this appeal, the issue presented for the Delaware Supreme Court's review was whether the Superior Court abused its discretion when it accepted the Special Master’s report denying the plaintiffs a second extension to move the trial date. To warrant the extension, the plaintiffs had to show good cause. According to the court, the plaintiffs failed to show good cause because they were not diligent in meeting Texas law requirements for asbestos exposure claims, the time pressures faced by counsel were foreseeable, counsel should not have missed deadlines, and, under the circumstances, refusing to grant another trial date extension was not unfair. On appeal, the plaintiffs tried to switch to a new standard to evaluate the Superior Court’s decision. The Delaware Supreme Court, however, declined to do so. "The Superior Court applied the law correctly and based its findings on the record and reason. There was no abuse of discretion, and we affirm."

Richardson v. Z&H Construction, LLC

Court: Idaho Supreme Court - Civil

Docket: 46587

Opinion Date: March 20, 2020

Judge: Brody

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

Michael Richardson was injured while working, and attempted to recover personal injury damages outside of the worker’s compensation system. Hayden Homes subcontracted with Z&H Construction, LLC, Plumbing Unlimited, LLC, and Alignment Construction, LLC for various aspects of a new construction project. Richardson was employed by Alignment, and worked on Hayden’s construction project. He was injured when he fell through a crawl space cover at the construction site. He received a worker’s compensation award from the worker’s compensation insurer for his direct employer, Alignment. After Richardson received his worker’s compensation award, he sued Z&H, Hernandez Framing, LLC (a subcontractor of Z&H), and Plumbing Unlimited (collectively, “Respondent LLCs”), alleging negligence in the construction of the crawl space cover. The district court granted the Respondent LLCs’ motion for summary judgment, determining that the Respondent LLCs were Richardson’s statutory co-employees and immune from suit pursuant to Idaho Code section 72- 209(3). Finding no reversible error in that reasoning, the Idaho Supreme Court affirmed the district court’s order granting summary judgment.

Roland v. Annett Holdings, Inc.

Court: Iowa Supreme Court

Docket: 18-1092

Opinion Date: March 20, 2020

Judge: Thomas D. Waterman

Areas of Law: Labor & Employment Law, Personal Injury

The Supreme Court reversed the ruling of the district court certifying a class action of employees with pending workers' compensation claims, holding that the district court abused its discretion by certifying this case as a class action. Employee filed this civil action on behalf of himself and other "similarly situated" employees who signed a memorandum of understanding (MOU) as a condition of employment providing for short-term light duty and treatment in Des Moines after sustaining a work-related injury. Before the instant case was filed, an Iowa court determined the MOU as applied to Employee violated Iowa Code 85.18 and 85.27(4). The district court certified the case as a class action. The Supreme Court reversed, holding that because the commonality requirement was lacking, individual issues predominated over common ones, and because workers' compensation claims must be resolved by the workers' compensation commission before judicial review, the district court erred in certifying this case as a class action.

Maryland Casualty Co. v. Asbestos Claims Court

Court: Montana Supreme Court

Citation: 2020 MT 70

Opinion Date: March 25, 2020

Judge: Sandefur

Areas of Law: Insurance Law, Labor & Employment Law, Personal Injury

The Supreme Court allowed hundreds of former employees of W.R. Grace & Company's Zonolite Division in Libby (Grace) to continue their asbestos-related personal injury claims against Maryland Casualty Company (MCC), Grace's former workers' compensation insurance provider, holding that MCC owed Grace workers a direct common law duty under Restatement (Second) of Torts 324A(b)-(c) to use reasonable care under the circumstances to warn them of the known risk of exposure to airborne asbestos in certain Grace workplaces. The Supreme Court assumed supervisory control over proceedings pending before the Montana Asbestos Claims Court. Here the Court addressed on extraordinary review MCC's assertion that the district court erred in concluding that MCC owed a duty of care to warn third-party employees of Grace of a known risk of airborne asbestos exposure in or about Grace facilities in and about Libby, Montana between 1963 and 1970. The Supreme Court held that, based on MCC's affirmative assumption of employee-specific medical monitoring and Grace's reliance on MCC to perform that function, MCC owed Grace workers a legal duty to use reasonable care to warn them of the risk of airborne asbestos.

Laplante v. GGNSC Madison, S.D.

Court: South Dakota Supreme Court

Citation: 2020 S.D. 13

Opinion Date: March 18, 2020

Judge: Jensen

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

The Supreme Court reversed the judgment of the circuit court affirming the decision of the South Dakota Department of Labor dismissing Plaintiff's petition seeking workers' compensation benefits for lack of prosecution, holding that Plaintiff engaged in activity within a year before the motion to dismiss was filed. Plaintiff filed a petition with the Department seeking disability benefits and medical expenses arising from her workplace injury. Eventually, Employer/Insurer filed a motion to dismiss for lack of prosecution under ARSD 47:03:01:09, asserting that there had been no activity for at least one year and that Plaintiff had failed to show good cause for the delay. The Department granted the motion to dismiss. The Supreme Court reversed, holding that the Department abused its discretion in dismissing the appeal because its decision was based upon its erroneous conclusion that Plaintiff's participation in a vocational rehabilitation program was not "activity" under ARSD 47:03:01:09.

Orozco v. County of El Paso

Court: Supreme Court of Texas

Docket: 17-0381

Opinion Date: March 20, 2020

Judge: John P. Devine

Areas of Law: Labor & Employment Law, Personal Injury

In this workers' compensation case involving the death of a deputy sheriff who died in a vehicular accident while driving his assigned patrol car the Supreme Court reversed the judgment of the court of appeals reversing the summary judgment rendered by the trial court for the deputy's widow, holding that, at the time of the accident, the deputy was engaged in law enforcement activity within the course and scope of his employment. In granting summary judgment fort he deputy's widow the trial court concluded that the deputy was in the course and scope of his duties at the time of his death. The court of appeals reversed, concluding that because the accident occurred during the deputy's travel home from an extra-duty assignment with a private employer the deputy was not in the course and scope of his employment. The Supreme Court reversed, holding (1) the deputy was operating the marked patrol car with the county's permission and under its authority at the time of his death; and (2) therefore, summary judgment was properly granted in the widow's favor.