Democracy Is on the Ballot: One Party Defends It, The Other Would Let It Die

AUSTIN SARAT

Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—explains why the 2020 Democratic National Convention was unlike any other political gathering in American history for reasons beyond its virtual platform. Sarat argues that the future of American democracy lies in the balance, and when we vote in November, it will be up to us whether democracy lives or dies.

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Sanchez v. Smart Fabricators of Texas, LLC

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-20506

Opinion Date: August 14, 2020

Judge: W. Eugene Davis

Areas of Law: Admiralty & Maritime Law, Labor & Employment Law, Personal Injury

After plaintiff was injured when he tripped on a pipe welded to the deck of a jacked-up offshore drilling rig, he filed a negligence action against Smart Fabricators under the Jones Act. The district court denied plaintiff's motion to remand to state court, granting Smart Fabricator's motion for summary judgment. The district court's ruling was based on its conclusion that plaintiff did not qualify as a seaman under the Jones Act. The Fifth Circuit reversed and held that plaintiff qualifies as a seaman under the Jones Act where plaintiff has shown that he had a substantial connection both in nature and duration to the vessels on which he worked. The court agreed with the district court that plaintiff satisfied the duration requirement of the Chandris test because he spent over 70 percent of his employment with SmartFab aboard a rig adjacent to an inland pier and around 19 percent of his employment aboard a rig on the Outer Continental Shelf. The court also held that plaintiff's connection to the vessel was substantial in nature and he satisfied the nature requirement of the Chandris test where plaintiff's work on vessels exposed him to the perils of the sea. The court explained that, although plaintiff was a land-based welder who went home every evening, such work aboard vessels did not disqualify him as a Jones Act seaman. The court remanded with instructions to remand the matter to state court.

Rollo-Carlson v. United States

Court: US Court of Appeals for the Eighth Circuit

Docket: 19-1815

Opinion Date: August 19, 2020

Judge: Jane Louise Kelly

Areas of Law: Personal Injury, Trusts & Estates

The Eighth Circuit affirmed the district court's dismissal, based on lack of subject matter jurisdiction, of plaintiff's suit against the government under the Federal Tort Claims Act (FTCA), alleging that the VA provided negligent psychiatric care that resulted in her son's death. In this case, plaintiff concedes she was not the appointed trustee under Minnesota law and was only the next-of-kin at the time she filed a claim with the VA. Therefore, plaintiff failed to present the VA with her authority to act as the trustee as required by the FTCA. Because this was a jurisdictional requirement under the FTCA, the court held that the complaint was properly dismissed.

Doe v. School District Number 1

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-1293

Opinion Date: August 17, 2020

Judge: Harris L. Hartz

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

Jane Doe appealed the dismissal of her Title IX claim against School District No. 1, Denver, Colorado (the District or DPS) for failure to state a claim. According to the complaint, a group of students began sexually harassing Ms. Doe after she was sexually assaulted by another student in March of her freshman year at East High School (EHS). She alleged that despite her numerous reports of the harassment to school personnel, as well as reports from teachers and a counselor, the school administration never investigated her complaints and little if anything was done to prevent the harassment from continuing. She stopped attending regularly scheduled classes about 14 months after the assault, and she transferred to a different school after completing her sophomore year. The Tenth Circuit reversed and remanded, finding Ms. Doe's complaint contained sufficient allegations to support an inference of deliberate indifference.

Higgs v. Costa Crociere S.P.A. Co.

Court: US Court of Appeals for the Eleventh Circuit

Dockets: 19-10371, 16-12919

Opinion Date: August 14, 2020

Judge: Marcus

Areas of Law: Admiralty & Maritime Law, Personal Injury

After plaintiff tripped over a bucket in a dining area of a cruise ship and sustained serious injuries, she filed suit against the cruise company, Costa Crociere, for negligently placing the bucket behind a corner in a highly-trafficked area. The jury returned a verdict in her favor for over $1 million. Both parties subsequently appealed. The Eleventh Circuit found Costa's arguments unpersuasive and affirmed the verdict in plaintiff's favor. However, the court held that the appropriate measure of medical damages in a maritime tort case is that reasonable value determined by the jury upon consideration of any relevant evidence, including the amount billed, the amount paid, and any expert testimony and other relevant evidence the parties may offer. In this case, the district court improperly reduced plaintiff's damages by applying a bright-line rule that would categorically limit medical damages to the amount actually paid by an insurer. Therefore, the court vacated the district court's reduction of the medical damages award and remanded for entry of judgment in the amount the jury found to be reasonable.

Cottingham v. Secretary of Health and Human Services

Court: US Court of Appeals for the Federal Circuit

Docket: 19-1596

Opinion Date: August 19, 2020

Judge: Jimmie V. Reyna

Areas of Law: Drugs & Biotech, Government & Administrative Law, Health Law, Legal Ethics, Personal Injury

Cottingham sought compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. 300aa-10, alleging that a Gardasil® vaccination received by her minor daughter, K.C., in 2012, for the prevention of HPV, caused K.C. injuries. The claim was filed immediately before the limitations period ran out. The government stated argued that a "reasonable basis for bringing the case may not be present.” Cottingham’s counsel was granted additional time but was unable to submit an expert opinion supporting her claim. The Special Master denied compensation. Cottingham sought attorneys’ fees and litigation costs ($11,468.77), 42 U.S.C. 300aa-15(e)(1). The Master found no evidence to support the "vaguely asserted claims" that the vaccination caused K.C.’s headaches, fainting, or menstrual problems." While remand was pending the Federal Circuit held (Simmons) that although a looming statute of limitations deadline may impact the question of whether good faith existed to bring a claim, that deadline does not provide a reasonable basis for asserting a claim. The Master decided that Simmons did not impact his analysis, applied a “totality of the circumstances” standard, and awarded attorneys’ fees. The Claims Court vacated and affirmed the Special Master’s third decision, finding no reasonable basis for Cottingham’s claim. The Federal Circuit vacated, noting that there is no dispute that Cottingham filed her claim in good faith. Simmons did not abrogate the “totality of the circumstances inquiry.” K.C.’s medical records paired with the Gardasil® package insert constitute circumstantial, objective evidence supporting causation.

Jarman v. HCR ManorCare, Inc.

Court: Supreme Court of California

Docket: S241431

Opinion Date: August 17, 2020

Judge: Ming Chin

Areas of Law: Health Law, Personal Injury

The Supreme Court held that the monetary cap of $500 in statutory damages in Cal. Health & Safety Code 1430(b) applies per action, not per regulatory violation. Section 1430(b) gives a current or former nursing care patient or resident the right to bring a private cause of action against a skilled nursing facility for violating certain regulations. The remedies include injunctive relief, attorney fees, and up to $500 in statutory damages. Plaintiff in the instant case filed a complaint against a nursing facility alleging violations of the Patients Bill of Rights, elder abuse and neglect, and negligence. The jury awarded Plaintiff $100,000 in damages and $95,500 in statutory damages - $250 for each of 382 violations. At issue on appeal was whether the $500 cap is the limit in each action or instead applies to each violation committed. The Supreme Court reversed, holding that section 1430(b) authorizes a $500 per lawsuit cap.

Duncan v. Long

Court: Idaho Supreme Court - Civil

Docket: 46930

Opinion Date: August 17, 2020

Judge: Bevan

Areas of Law: Civil Procedure, Landlord - Tenant, Personal Injury, Real Estate & Property Law

Appellant Sky Duncan’s daughter, K.R., attended a daycare Anna McCowin ran out of a residence she leased from Respondent Scott Long. In 2014, McCowin left K.R. unattended in the backyard, which allowed K.R. to allegedly escape through a broken gate to a nearby canal where she drowned. Duncan sued McCowin and Long for negligence. Long moved for summary judgment, arguing that he did not owe Duncan or her daughter a duty to repair the broken gate. The district court granted Long’s motion for summary judgment after declining to extend premises liability to an injury that occurred on property adjacent to Long’s property. Duncan filed a motion for reconsideration, which the district court denied. After review, the Idaho Supreme Court found the district court correctly held that Long did not owe K.R. a duty of care to protect against an injury that occurred on adjacent property. Therefore, the Court affirmed the district court's grant of summary judgment in Long's favor.

LP Louisville East, LLC v. Patton

Court: Kentucky Supreme Court

Dockets: 2019-SC-0016-D, 2019-SC-0211-D

Opinion Date: August 20, 2020

Judge: Hughes

Areas of Law: Arbitration & Mediation, Contracts, Health Law, Personal Injury

In this action brought against a long-term care facility by Kenneth, as administrator of Estate of Tommy Patton, the Supreme Court reversed in part the court of appeals' decision concluding that an arbitration agreement was enforceable as to Kenneth's individual wrongful death claim but that the agreement was not enforceable as to the Estate's claims, holding that the agreement was valid as to both claims. Kenneth signed an arbitration agreement at the time his father, Tommy, was admitted to Signature HealthCARE of East Louisville's long-term care facility. Tommy later suffered a fall and died a few weeks later. Kenneth brought sued Signature, alleging negligence and wrongful death. Signature filed a motion to compel arbitration. The trial court denied the motion in its entirety. The court of appeals reversed in part, concluding that the arbitration agreement was not enforceable against the Estate but that Kenneth's wrongful death claim was arbitrable because he executed the arbitration agreement in his individual capacity. The Supreme Court reversed in part, holding that both the Estate's and Kenneth's individual claims were subject to arbitration because the arbitration agreement was valid and enforceable as to the Estate claim and as to Kenneth's individual wrongful death claim.

Smith v. Hardy Wilson Memorial Hospital

Court: Supreme Court of Mississippi

Citation: 2018-CA-01448-SCT

Opinion Date: August 20, 2020

Judge: Chamberlin

Areas of Law: Medical Malpractice, Personal Injury

The wrongful-death beneficiares and estate of Carolyn Smith appealed a circuit court's grant of summary judgment in favor of the Hardy Wilson Memorial Hospital (now known as Copiah County Medical Center). The trial court found the Smiths failed to produce evidence sufficient to show Carolyn Smith's injuries or death was caused by any negligence of the Hospital's nursing staff. After review, the Mississippi Supreme Court concurred with the trial court and affirmed judgment.

George Clift Enterprises, Inc. v. Oshkosh Feedyard Corp.

Court: Nebraska Supreme Court

Citation: 306 Neb. 775

Opinion Date: August 14, 2020

Judge: Freudenberg

Areas of Law: Business Law, Contracts, Personal Injury

The Supreme Court affirmed the order of the district court granting summary judgment against a real estate agency on its complaint against the seller and buyers of certain property for breach of an exclusive listing agreement and tortious interference with a contract, business relationship, or expectation, holding that summary judgment was properly granted. The sale of the property occurred after the listing period and after the protection period of the agreement, and no commission was paid. The negotiations for the sale were conducted directly between the seller and buyers, with the real estate agent's knowledge. The district court granted Defendants' motions for summary judgment. On appeal, the real estate agency argued that summary judgment was inappropriate because the district court held the summary judgment hearing before the real estate company had conducted depositions. The Supreme Court affirmed, holding (1) the district court did not prematurely address Defendants' motions for summary judgment; and (2) the district court erred in awarding attorney fees.

Sundermann v. Hy-Vee, Inc.

Court: Nebraska Supreme Court

Citation: 306 Neb. 749

Opinion Date: August 14, 2020

Judge: Stacy

Areas of Law: Personal Injury

The Supreme Court reversed the decision of the court of appeals reversing the judgment of the district court granting summary judgment in favor of a convenience store in this personal injury action, holding that the convenience store was entitled to summary judgment as a matter of law. This action arose from an accident between a pickup truck and a pedestrian in the parking lot of the convenience store. The pedestrian sued the convenience store alleging that the accident was caused by a dangerous condition on the property. In granting summary judgment for the convenience store, the district court found that the driver's negligence was not reasonably foreseeable. The court of appeals reversed. The Supreme Court reversed, holding (1) the convenience store's liability was governed by premises liability jurisprudence; and (2) the third element of the premises liability test could not be satisfied, and the pedestrian's claim against the convenience store failed as a matter of law.

Desmond v. News & Observer Publishing Co.

Court: North Carolina Supreme Court

Docket: 132PA18-2

Opinion Date: August 14, 2020

Judge: Earls

Areas of Law: Personal Injury

The Supreme Court affirmed in part and reversed in part the decision of the court of appeals affirming the judgment finding Defendants liable for defamation and awarding Plaintiff compensatory and punitive damages, holding that the trial court erred in failing to instruct the jury that it was required to find one of the statutory aggravating factors before awarding punitive damages pursuant to N.C. Gen. Stat. 1D-15(a). Specifically, the Supreme Court held (1) Plaintiff presented sufficient evidence to support a finding of actual malice by clear and convincing evidence; (2) the trial court did not err in denying Defendants' motions for directed verdict and judgment notwithstanding the verdict; (3) the trial court did not err in instructing the jury on the issue of falsity; but (4) the trial court erred in failing to instruct the jury that it was required to find one of the statutory aggravating factors before awarding punitive damages.

Walker v. K&W Cafeterias

Court: North Carolina Supreme Court

Docket: 99PA19

Opinion Date: August 14, 2020

Judge: Robin E. Hudson

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

The Supreme Court reversed the court of appeals' decision affirming the North Carolina Industrial Commission's finding that the uninsured/underinsured motorist (UIM) proceeds that Plaintiff received on behalf of her husband's estate through the settlement of a wrongful death lawsuit were subject to Defendants' subrogation lien under N.C. Gen. Stat. 97-10.2, holding that the UIM proceeds recovered from the wrongful death lawsuit may not be used to satisfy Defendants' workers' compensation lien. The decedent, Plaintiff's husband and an employee of Employer, was involved in a fatal motor vehicle accident with a third party in South Carolina. The Commission ordered Defendants to pay workers' compensation benefits to Plaintiff. Plaintiff then filed a wrongful death case seeking damages from the third party driver. The parties reached a settlement agreement that included recovery in the form of UIM proceeds. The workers' compensation insurance carrier for Employer subsequently claimed a lien on the UIM proceeds that Plaintiff recovered from the wrongful death settlement. The Commission ordered the distribution of Plaintiff's entire recovery from the South Carolina wrongful death settlement, concluding that Defendants were entitled to subrogation under section 97-10.2. The Supreme Court reversed, holding that Defendants may not satisfy their workers' compensation lien by collecting from Plaintiff's recovery of UIM proceeds in her South Carolina wrongful death settlement.

Arreguin-Leon v. Hadco Construction, LLC

Court: Utah Supreme Court

Citation: 2020 UT 59

Opinion Date: August 17, 2020

Judge: Peterson

Areas of Law: Personal Injury

The Supreme Court affirmed the judgment of the court of appeals reversing the judgment of the district court in favor of Plaintiff in this personal injury action, holding that the district court abused its discretion in allowing Plaintiff's expert witness to offer undisclosed causation testimony, and the error was harmful. Plaintiff, who was injured while working on a highway construction site, sued the general contractor for failing to take necessary safety measures to protect workers from highway traffic. The jury found that the general contractor was partially liable for Plaintiff's injury. On appeal, the general contractor argued that the district court erred when it allowed Plaintiff's expert witness to offer an undisclosed opinion on causation. The court of appeals agreed, determining that the error was harmful enough to warrant reversal and a new trial. The Supreme Court affirmed, holding that the testimony was erroneously admitted and that the error was not harmless.