Latest 14 Cases This Week: Rivera v. Kirby Offshore Marine, LLC (5th Cir.), Spinnenweber v. Laducer (7th Cir.), Hubbard v. Bayer Healthcare ...

The Twenty-Sixth Amendment and the Real Rigging of Georgia’s Election

VIKRAM DAVID AMAR

Illinois law dean Vikram David Amar explains why Georgia’s law allowing persons 75 years and older to get absentee ballots for all elections in an election cycle with a single request, while requiring younger voters to request absentee ballots separately for each election, is a clear violation of the Twenty-Sixth Amendment. Dean Amar acknowledges that timing may prevent this age discrimination from being redressed in 2020, but he calls upon legislatures and courts to understand the meaning of this amendment and prevent such invidious disparate treatment of voters in future years.

Read More

COVID Comes to Federal Death Row—It Is Time to Stop the Madness

AUSTIN SARAT

Austin Sarat—Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College—explains the enhanced risk of COVID-19 infection in the federal death row in Terre Haute, not only among inmates but among those necessary to carry out executions. Professor Sarat calls upon the Trump administration and other officials to focus on saving, rather than taking, lives inside and outside prison.

Read More

Rivera v. Kirby Offshore Marine, LLC

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-40799

Opinion Date: December 22, 2020

Judge: Carl E. Stewart

Areas of Law: Admiralty & Maritime Law, Personal Injury

Plaintiff was hired by Kirby to pilot a seagoing vessel. While plaintiff was aboard the vessel, he injured his foot when he tripped over a stair inside a hatch door. Plaintiff filed suit against Kirby for lost wages and the district court ultimately determined that Kirby was liable to plaintiff on his claim of Sieracki seaworthiness and that Kirby was alternatively liable under the Longshore and Harbor Workers' Compensation Act (LHWCA). The district court awarded plaintiff $11,695,136.00 in damages. The Fifth Circuit concluded that plaintiff is not an employee of Riben Marine and thus is not eligible to sue under section 905(b) of the LHWCA; the district court did not clearly err in concluding that the vessel was unseaworthy; plaintiff was not contributorily negligent for wearing sunglasses on the vessel and the district court did not make insufficient factual findings on the contributory negligence question; assuming arguendo that the district court erroneously admitted evidence of a subsequent remedial measure, Kirby has not demonstrated that the error affected its substantial rights; and the district court did not err in assessing plaintiff's lost future earnings.

Spinnenweber v. Laducer

Court: US Court of Appeals for the Seventh Circuit

Docket: 20-1534

Opinion Date: December 18, 2020

Judge: KANNE

Areas of Law: Civil Procedure, Personal Injury

In 2012, Laducer, a truck driver, rear-ended Spinnenweber’s minivan. Spinnenweber refused medical treatment at the scene. He later sought treatment for neck pain, tinnitus, and bouts of short-term memory loss. Spinnenweber sued Laducer and Laducer’s employer, seeking compensatory damages for his physical injuries. He did not seek punitive damages, medical costs, or lost wages, nor did he claim psychological or emotional injuries. Defendants conceded liability. The defendants’ medical expert, Dr. Carney, was the only expert that Spinnenweber relied on. He testified that Spinnenweber “clearly had a whiplash injury” from the crash. “He certainly could’ve had a very mild concussion.” Dr. Carney did not connect the alleged memory loss or the tinnitus to the accident. Spinnenweber’s counsel stated during closing arguments that the purpose of tort law "is to deter bad conduct so it doesn’t repeat.” The jury awarded Spinnenweber $1 million in compensatory damages. The court offered Spinnenweber the choice of accepting $250,000 or a new trial. Spinnenweber declined to accept the remittitur award. His attorney withdrew. After a one-day bench trial, Spinnenweber requested an award of $0 in damages, calling it a “verdict of silence.” The Seventh Circuit affirmed. The court did not abuse its discretion by finding that Spinnenweber’s evidence showed that he potentially suffered just whiplash and a mild concussion or by finding that the $1 million verdict was so outrageous that it warranted remittitur or a new trial. “Spinnenweber was hoisted with his own petard.”

Hubbard v. Bayer Healthcare Pharmaceuticals Inc.

Court: US Court of Appeals for the Eleventh Circuit

Docket: 19-13087

Opinion Date: December 22, 2020

Judge: Marcus

Areas of Law: Drugs & Biotech, Health Law, Medical Malpractice, Personal Injury, Products Liability

In 2012, 41-year-old Karen Hubbard suffered a catastrophic stroke caused by a blood clot to her brain--a venous sinus thrombosis, a type of venous thromboembolism (VTE). She had been taking Beyaz, a birth control pill manufactured by Bayer. While she first received a prescription for Beyaz on December 27, 2011, Karen had been taking similar Bayer birth control products since 2001. The pills are associated with an increased risk of blood clots. The Beyaz warning label in place at the time of Karen’s Beyaz prescription warned of a risk of VTEs and summarized studies. The Eleventh Circuit affirmed summary judgment in favor of Bayer. Georgia’s learned intermediary doctrine controls this diversity jurisdiction case. That doctrine imposes on prescription drug manufacturers a duty to adequately warn physicians, rather than patients, of the risks their products pose. A plaintiff claiming a manufacturer’s warning was inadequate bears the burden of establishing that an improved warning would have caused her doctor not to prescribe her the drug in question. The Hubbards have not met this burden. The prescribing physician testified unambiguously that even with the benefit of the most up-to-date risk information about Beyaz, he considers his decision to prescribe Beyaz to Karen to be sound and appropriate.

Varden Capital Properties, LLC v. Reese

Court: Supreme Court of Alabama

Docket: 1190692

Opinion Date: December 18, 2020

Judge: Sellers

Areas of Law: Civil Procedure, Personal Injury

Varden Capital Properties, LLC ("Varden"), appealed an interlocutory circuit court order denying Varden's motion for summary judgment based on the statute of limitations. Alexis Reese alleges that, on October 29, 2016, she suffered a fall on real property owned or maintained by Varden. On October 29, 2018, exactly two years later, on the last day before the statute of limitations expired, Reese sued Varden, alleging negligence and wantonness. Reese did not request the circuit clerk to serve the complaint and summons by certified mail. Instead, she submitted a summons along with her complaint indicating that a private process server would be used to accomplish service. A process server served the complaint and summons at an address in Montgomery on February 6, 2019, 100 days after the complaint was filed. The address to which the materials were served was not Varden's; notwithstanding, Varden learned of the suit and appeared for the sole purpose of filing a motion to quash service. The trial court gave Reese more time to serve Varden's agent at the correct address. On June 14, 2019, Reese served Varden by certified mail by the deadline set by the trial court. The Alabama Supreme Court reversed, finding that although Reese used a process server in an attempt to ensure that service was made at the correct address, she pointed to no evidence of intent, no evidence establishing when she hired a process server, and no evidence demonstrating that any steps at all were taken to discover the proper address for service. Indeed, even 100 days after filing the complaint, she simply served it at the incorrect address she had when the complaint was filed, "indicating that any effort to identify the correct address was minimal at best."

Seal v. Welty d/b/a North Country Services

Court: Alaska Supreme Court

Docket: S-17540

Opinion Date: December 18, 2020

Judge: Daniel E. Winfree

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

A worker died at a construction site when a retaining wall collapsed. Neither the putative employer, who claimed the worker was an independent contractor, nor the property owner, who hired the putative employer, had workers’ compensation coverage. The worker’s mother, who also was the personal representative of the worker’s estate, filed both a workers’ compensation claim against the Alaska Workers’ Compensation Benefits Guaranty Fund and a superior court wrongful death action against both the putative employer and the property owner. The Fund later caused the property owner, the putative employer, and the worker’s father to be joined as parties to the workers’ compensation claim before the Alaska Workers’ Compensation Board.All parties to the workers’ compensation proceeding, except the putative employer, entered into a settlement agreement; in the settlement the estate elected the wrongful death suit as its remedy, agreed to dismiss the workers’ compensation claim entirely to effectuate its remedy election, received a settlement payment from the property owner’s general liability insurer, and dismissed the wrongful death claim against the property owner. The agreement explicitly preserved the estate’s wrongful death claim against the putative employer. The Board approved the agreement, and the superior court dismissed the property owner from the wrongful death action based on a separate stipulation. The putative employer then sought dismissal of the wrongful death suit, contending that the Alaska Workers’ Compensation Act’s exclusive liability provision precluded the lawsuit because the settlement effectively paid workers’ compensation benefits to the estate. The superior court granted the putative employer summary judgment, relying on the Act to decide that the Board’s approval of the settlement transformed the settlement money into workers’ compensation benefits. Because the superior court misinterpreted the settlement agreement and the Act, the Alaska Supreme Court reversed the grant of summary judgment and remanded for further proceedings.

Ko v. Maxim Healthcare Services, Inc.

Court: California Courts of Appeal

Docket: B293672(Second Appellate District)

Opinion Date: December 23, 2020

Judge: Feuer

Areas of Law: Personal Injury

Plaintiffs filed suit against Maxim and Defendant Manalastas, alleging claims for negligence and negligent infliction of emotional distress (NIED) claiming that Manalastas, a vocational nurse employed by Maxim who worked as an in-home caregiver for plaintiffs' disabled son Landon, abused Landon while plaintiffs were out of the house. The Court of Appeal reversed the trial court's judgment of dismissal, holding that plaintiffs' "virtual presence" during Landon's abuse, through real time livestream video on a smartphone from a "nanny cam," satisfies the requirement in Thing v. La Chusa (1989) 48 Cal.3d 644, 668, of contemporaneous presence. The court explained that, in the three decades since the Supreme Court decided Thing, technology for virtual presence has developed dramatically, such that it is now common for families to experience events as they unfold through the livestreaming of video and audio. Furthermore, recognition of an NIED claim where a person uses modern technology to contemporaneously perceive an event causing injury to a close family member is consistent with the Supreme Court's requirements for NIED liability and the court's desire to establish a bright-line test for bystander recovery. The court remanded for further proceedings.

Menges v. Dept. of Transportation

Court: California Courts of Appeal

Docket: G057643(Fourth Appellate District)

Opinion Date: December 24, 2020

Judge: Kathleen E. O'Leary

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

Kevyn Menges suffered catastrophic injuries in a motor vehicle accident. Menges, through her guardian ad litem Susan Menges, sued the Department of Transportation (Caltrans) for its negligent construction of an interstate off-ramp. Caltrans moved for summary judgment, asserting design immunity. The trial court granted Caltrans’s motion for summary judgment. On appeal, Menges argued: (1) design immunity should not have applied since the approved plans were unreasonable, and the construction of the interstate off-ramp did not match the previously approved design plans; (2) the trial court erred in denying her oral request for a continuance at the summary judgment hearing; and (3) Caltrans’s Code of Civil Procedure section 998 offer was unreasonable and invalid, and a portion of the cost award for expert witness fees should have been disallowed. The Court of Appeal determined none of Menges’s arguments had merit, and affirmed the judgment.

A.H. v. Louisville Metro Government

Court: Kentucky Supreme Court

Docket: 2018-SC-0359-DG

Opinion Date: December 17, 2020

Judge: Nickell

Areas of Law: Constitutional Law, Personal Injury

The Supreme Court held that Louisville Metro Government (LMG) and its employees are cloaked in sovereign immunity and qualified official immunity for an alleged violation of Ky. Rev. Stat. 71.040 and that money damages are unavailable because Ky. Rev. Stat. 446.070 does not waive immunity. James Hatcher died within twenty-four hours of entering the custody of the Louisville Metro Department of Corrections (LMDC). Plaintiffs filed suit alleging a violation of section 71.040. Plaintiffs alleged multiple torts and constitutional violations, seeking compensatory and punitive damages from LMG, the LMDC director, and six LMDC guards. The circuit court granted summary judgment for Defendants on all claims, and the court of appeals affirmed. The Supreme Court reversed in part, holding that LMG was immune from a claim for money damages, and that immunity was not waived.

Henderson County Health Care Corp. v. Honorable Karen Lynn Wilson

Court: Kentucky Supreme Court

Docket: 2020-SC-0001-MR

Opinion Date: December 17, 2020

Judge: Michelle M. Keller

Areas of Law: Health Law, Personal Injury

The Supreme Court reversed the judgment of the court of appeals denying Henderson County Health Care Corporation's (hereinafter, Redbanks) petition for a writ of prohibition prohibiting the enforcement of an order issued by Judge Karen Wilson of the Henderson Circuit Court compelling Redbanks to produce certain consultant reports to the real party of interest, Roland McGuire, holding that the court of appeals erred. Specifically, the Supreme Court held Redbanks was entitled to the issuance of the writ because the consultant reports at issue in this case were protected by the Federal Quality Assurance Privilege, 42 U.S.C. 1396r(b)(1)(B) and 42 U.S.C. 1395i-3(b)(1)(B), because they were used for quality assurance purposes.

Howard v. Big Sandy Area Development District, Inc.

Court: Kentucky Supreme Court

Docket: 2018-SC-0601-DG

Opinion Date: December 17, 2020

Judge: John D. Minton, Jr.

Areas of Law: Personal Injury

The Supreme Court affirmed the judgment of the court of appeals affirming the circuit court's grant of summary judgment to Big Sandy Area Development District, Inc. (BSADD) in this negligence and wrongful death action, holding that BSADD did not have governmental immunity but that the trial court properly granted summary judgment on the merits of Plaintiff's claims against BSADD. BSADD arranges for assistants to visit elderly clients in their homes on a regular basis. After Emma Jean Hall died of the effects of sepsis that developed from a bed sore on her lower back, Plaintiff, in her capacity as the executrix of Hall's estate, brought this action alleging that Hall's condition could have been found and remedied had BSADD's home care aid not been negligently attentive. The trial court granted BSADD's motion for summary judgment, concluding that BSADD enjoyed governmental immunity. The court of appeals affirmed. The Supreme Court affirmed but on different grounds, holding (1) BSADD did not have governmental immunity because it did not perform an integral state function; and (2) BSADD was entitled to judgment as a matter of law on the substance of the negligence claim because it did not breach of standard of care to Hall.

State ex rel. Janssen Pharmaceuticals, Inc. v. Honorable Michael Noble

Court: Supreme Court of Missouri

Docket: SC98222

Opinion Date: December 22, 2020

Judge: Mary R. Russell

Areas of Law: Civil Procedure, Drugs & Biotech, Personal Injury

The Supreme Court made permanent a preliminary writ of prohibition preventing the circuit court from allowing Plaintiffs' claims against Janssen Pharmaceuticals, Johnson & Johnson, and Janssen Research & Development (collectively, Defendants) in the Circuit Court of the City of St. Louis, holding that the circuit court abused its discretion by refusing to transfer the claims of those injured outside of the City of St. Louis. Multiple plaintiffs filed this action stating various causes of action arising from the sale and use of Risperdal, a prescription drug. Defendants filed a motion to dismiss based on improper venue and forum non conveniens for all plaintiffs not injured in the City of St. Louis. The circuit court overruled the motion. Defendants then filed a petition for a writ of prohibition or mandamus asking that the claims of the plaintiffs whose injuries allegedly occurred in Missouri counties other than the City of St. Louis be transferred. The Supreme Court granted a writ of prohibition, holding (1) Mo. R. Civ. P. 52.05(a) cannot be used to confer venue in a forum that is otherwise improper, and newly enacted Mo. Rev. Stat. 508.013.1 did not alter the result on these facts; and (2) the circuit court's failure to transfer the claims of those injured outside of the City of St. Louis was an abuse of discretion.

Crescent University City Venture, LLC v. Trussway Manufacturing, Inc.

Court: North Carolina Supreme Court

Docket: 407A19

Opinion Date: December 18, 2020

Judge: Morgan

Areas of Law: Commercial Law, Contracts, Personal Injury

The Supreme Court affirmed the order of the Business Court granting summary judgment in favor of Defendants, holding that the Business Court properly determined that North Carolina's economic loss rule requires negligence claims to be based upon the violation of an extra-contractual duty imposed by operation of law. At issue was whether a commercial property owner who contracts for the construction of a building may seek to recover in tort for its economic loss from a subcontracted manufacturer of building materials with whom the property owner does not have contractual privity. Applying the economic loss rule irrespective of the existence or lack of a contractual relationship between the property owner and the subcontracted manufacturer, the court dismissed Plaintiff's negligence claim with prejudice. The Supreme Court affirmed, holding that purely economic losses are not recoverable under tort law, particularly in the context of commercial transactions.

Newman v. Stepp

Court: North Carolina Supreme Court

Docket: 383A19

Opinion Date: December 18, 2020

Judge: Morgan

Areas of Law: Personal Injury

The Supreme Court affirmed the decision of the trial court reversing the trial court's order granting judgment on the pleadings regarding Plaintiffs' claim for negligent infliction of emotional distress, holding that the court of appeals did not err. Plaintiffs filed a complaint including claims for negligent infliction of emotional distress, intentional infliction of emotional distress, and wrongful death after their two-year-old child was accidentally killed by a shotgun at Defendants' home. The trial court granted Defendants' motion for judgment on the pleadings, dismissing all of Plaintiffs' claims. The court of appeals reversed in part, holding that Plaintiffs' allegations regarding foreseeability were sufficient to support a claim for negligent infliction of emotional distress. The Supreme Court affirmed, holding that Plaintiffs' allegations were sufficient to support their claim for negligent infliction of emotional distress against Defendants.

Raynor v. D'Annunzio

Court: Supreme Court of Pennsylvania

Docket: 36 EAP 2019

Opinion Date: December 22, 2020

Judge: Doughtery

Areas of Law: Civil Procedure, Legal Ethics, Personal Injury

This appeal arose from a medical malpractice action in which appellees Nancy Raynor, Esq. and Raynor & Associates served as defense counsel for Dr. Jeffrey Gellar and Roxborough Emergency Physician Associates (collectively Roxborough). Rosalind Sutch, executrix of the estate of Rosalind Wilson (decedent), and her counsel in that lawsuit, Messa & Associates, P.C. was plaintiff in the suit. Joseph Messa, Jr., Esq. (collectively, the Messa appellants) were Sutch's counsel. In July 2009, Sutch filed a medical malpractice action alleging, among other things, Roxborough failed to obtain a CT scan and timely diagnose decedent’s lung cancer. The trial court granted Sutch’s pre-trial motion in limine, and defendants were precluded “from presenting any evidence, testimony, and/or argument regarding decedent’s smoking history” at trial. During trial, Sutch’s counsel requested an order from the trial judge directing Raynor to inform witnesses of the ban on testimony regarding decedent’s smoking history before taking the stand. The court did not issue the requested order; upon questioning, the defense expert testified the decedent was a smoker, was hypertensive, and had vascular disease. The witness did not recollect having a discussion with Raynor regarding mentioning the decedent's smoking. Plaintiff's counsel asked for a mistrial and/or sanctions. The trial judge denied the request for a mistrial and instead provided a curative instruction to the jury. At the end of trial, the jury returned a verdict in favor of Sutch. Appellants filed post-trial motions seeking a new trial as well as an order holding Raynor in contempt and awarding sanctions in the aggregate amount of counsel fees and costs for the first trial ($1,349,063.67). The court granted the motion for a new trial. The court found Raynor to be in civil contempt and issued an order for sanctions in the amount of $946,195.16 to be divided among appellants. The Pennsylvania Supreme Court addressed whether the Superior Court properly determined a request for contempt sanctions against opposing counsel raised in a post-trial motion in a lawsuit where neither counsel was a named party, constituted actionable “civil proceedings” under the Dragonetti Act. The Supreme Court concluded that intra-case filings, such as the subject post-trial motion for contempt and/or sanctions, did not constitute the “procurement, initiation or continuation of civil proceedings” as contemplated under the Dragonetti Act. The Superior Court erred when it held otherwise.