Joe, Joey, Joe-Baby, Sexist: Where’s Your Imposter Syndrome?

JOANNA L. GROSSMAN

SMU Dedman School of Law professor Joanna L. Grossman responds to a recent Wall Street Journal op-ed criticizing soon-to-be First Lady Jill Biden for using the academic title she earned. Professor Grossman dissects the op-ed, penned by a retired lecturer at Northwestern University, and explains the deep and pervasive sexism behind it.

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Knight v. Kirby Offshore Marine Pacific, LLC

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-30756

Opinion Date: December 17, 2020

Judge: Rhesa Hawkins Barksdale

Areas of Law: Admiralty & Maritime Law, Personal Injury

After he sustained an ankle injury by stepping on a chafed stern line while he was a seaman aboard a tugboat owned by Kirby, plaintiff filed a Jones Act negligence claim against Kirby. The district court concluded that Kirby was negligent, based on an order by its vessel's captain to replace the stern line in unfavorable weather. Furthermore, plaintiff was contributorily negligent for placing the removed stern line near him and subsequently stepping on it while carrying out that order, reducing his damages award in proportion to his fault. The Fifth Circuit concluded that changing out the chafed line fell within the class of ordinary "heavy lifting" plaintiff performed routinely, and thus the district court was not precluded, as a matter of law, from reducing his award proportional to his fault. The court explained that the district court did not clearly err in finding that plaintiff was negligent in stepping on the chafed line, but the district court did err in finding him negligent for failing to move it. In this case, Kirby did not present any evidence showing that plaintiff placed the chafed line on the deck in an imprudent manner and the tugboat's captain, who gave plaintiff the order, watched the entire procedure, testifying that there were no irregularities in how the task was performed. Therefore, in the absence of any evidence, the district court's finding of fifty percent negligence based on plaintiff's placement of the chafed stern line is clearly erroneous. Finally, the court upheld the general damages award and concluded that the district court did not clearly err in awarding $60,000. The court affirmed in part, vacated in part, and remanded.

Stelly v. Duriso

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-20160

Opinion Date: December 11, 2020

Judge: Catharina Haynes

Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law, Personal Injury

Plaintiff filed suit against the unions she was affiliated with, as well as a maritime association, for sexual harassment under federal employment law, arguing that defendant's conduct created a hostile work environment. Plaintiff also filed suit against defendant himself for intentional infliction of emotional distress (IIED) under Texas state law. The district court entered a default judgment in plaintiff's favor on the IIED claim and plaintiff ultimately prevailed at trial against the other defendants. The Fifth Circuit first held that a party's failure to file a motion to set aside a default judgment in the district court does not prevent the party from appealing that judgment to the court. On the merits, the court vacated the default judgment on the IIED claim, concluding that plaintiff could not pursue an IIED against defendant in light of the other statutory remedies available to plaintiff. The court explained that a plaintiff generally cannot sustain an IIED claim if the plaintiff could have brought a sexual harassment claim premised on the same facts. In this case, the gravamen of plaintiff's IIED claim is for sexual harassment; plaintiff used defendant's conduct as a basis for her Title VII claims against the other defendants; plaintiff ultimately prevailed on those claims against the union; and the availability of those statutory remedies on the same facts forecloses her IIED claims against defendant. Accordingly, the court remanded for further proceedings.

Caton v. City of Pelham

Court: Supreme Court of Alabama

Docket: 1190589

Opinion Date: December 11, 2020

Judge: Mendheim

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

Mark Caton appealed the grant of summary judgment entered in favor of the City of Pelham ("the City"), in his action alleging retaliatory discharge against the City. In approximately 2001, he was hired as a police officer by the City. In 2004, while he was still a police officer, Caton injured his neck when he was wrestling with a suspect. Caton did not receive treatment for his neck at the time, but the pain from the injury gradually increased. In April 2006, Caton transferred from the Police Department to the Pelham Fire Department. In 2012, Caton had a vertebrae-fusion surgery. In 2015 and 2016, Caton would have periods of excruciating pain leading to unexcused absences from work. He received reprimands and suspensions. Caton would consult with multiple doctors and pain specialists for rehabilitation therapy and pain management each time he was reinjured as a result of his work. In 2016, Caton was referred to Dr. Michelle Turnley, a physiatrist at the Workplace Occupational Health Clinic located on the campus of the University of Alabama at Birmingham ("UAB"). Dr. Turnley and Caton tell differing stories of an encounter at the UAB clinic September 2016. Caton testified that he asked Dr. Turnley for pain medication for the next time his pain became too intense, but Dr. Turnley reminded Caton that on his first visit he had not signed a pain contract and he had refused to provide a urine sample, so she declined to give him pain medication. Caton denied the doctor's account, but Dr. Turnley's clinical notes described her encounter with Caton as him being "fairly aggressive requesting pain medication... he was fairly loud and refused to leave the clinic and UAB police were called. ... He did not appear to have any functional deficits. Additionally, someone in the waiting room saw him sling the door open like he was about to 'pull it off the hinges'; therefore, obviously he has no strength deficits." In October, Dr. Turnley sent Caton a letter dropping him as a patient. By November, the City terminated Caton's employment, citing in part, the visit to Dr. Turnley's office. His unemployment application was denied because of his discharge from the City for misconduct. Caton sued, alleging procedural issues with the unemployment compensation hearing, adding a retaliatory-discharge claim. The trial court entered summary judgment in favor of the City, finding Caton had a full opportunity to litigate his retaliatory-discharge claim at the unemployment hearing, thus he was barred from raising it again by collateral estoppel. The Alabama Supreme Court determined application of collateral estoppel did not violate Caton's right to a trial by jury, and concurred estoppel barred his retaliatory-discharge claim against the City. "Caton does not present any other reason why the trial court's judgment should be reversed. Therefore, we affirm summary judgment in favor of the City."

Ex parte Petway Olsen, LLC.

Court: Supreme Court of Alabama

Docket: 1190402

Opinion Date: December 11, 2020

Judge: Wise

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

Law firm Petway Olsen, LLC, petitioned the Alabama Supreme Court for a writ of mandamus to direct the Jefferson Circuit Court to set aside its order granting the motion filed by Mercedes-Benz USA, LLC ("MBUSA"), seeking to disqualify the firm from representing the plaintiffs in the underlying case and to enter an order allowing the firm to represent the plaintiffs. In 2017, Valisha Cartwell was driving a 1998 Mercedes ML320. As she was pulling into a parking space in front a dental office operated by Vital Smiles Alabama, P.C., the vehicle suddenly accelerated and crashed into the front of the dental office, killing a six-year-old child and injuring others. Grelinda Lee, as personal representative of the child's estate, sued Cartwell and the owner of the Mercedes ML320 (and other fictitiously named defendants) for wrongful death. An amended complaint added Mercedes-Benz USA, LLC. The second amended complaint was signed by D. Bruce Petway of Petway Olsen and included the names of other attorneys with different law firms who were also representing the plaintiffs. Both Mercedes-Benz U.S. International, Inc. ("MBUSI") and MBUSA asserted as a defense that Petway Olsen was "disqualified [from representing the plaintiffs] because one of its members [was] a former in-house attorney and general counsel for MBUSI." After review, the Supreme Court determined the trial court erred when it granted MBUSA's motion to disqualify Petway Olsen from representing the plaintiffs. The petition for mandamus relief was granted and the trial court directed to vacate its previous order granting MBUSA's motion.

Guthrie v. Fanning

Court: Supreme Court of Alabama

Docket: 1190852

Opinion Date: December 11, 2020

Judge: Sellers

Areas of Law: Civil Procedure, Personal Injury

Winston Guthrie sued David Ray Fanning seeking damages for false arrest, malicious prosecution, and defamation. In August 2009, Guthrie entered a guilty plea to the charges of sodomy and sexual abuse of several minor boys, including Fanning's son ("the victim"). Guthrie was sentenced to 10 years' imprisonment; that sentence was split and Guthrie served 1 year followed by 3 years' supervised probation. As a convicted sex offender, Guthrie was required to comply with all parts of the Alabama Sex Offender Registration and Community Notification Act ("the ASORCNA"). At issue in this appeal was section 15-20A- 16(c), Ala. Code 1975, a part of the ASORCNA, which provided that "[n]o sex offender shall make any harassing communication, directly or indirectly, in person or through others, by phone, mail, or electronic means to the victim or any immediate family member of the victim." Any person who knowingly violated section 15-20A-16(c) was guilty of a Class C felony. In April 2018, Guthrie sent a letter addressed to Fanning and Fanning's wife that Fanning perceived as harassing. A district-court magistrate issued a complaint against Guthrie charging him with the offense of harassing communications, a violation of section 13A-11-8(b)(1)(a), Ala. Code 1975, which is a Class C misdemeanor. The district attorney assigned to prosecute the case determined that Guthrie should not have been charged with the misdemeanor offense of harassing communications, instead, he should have been charged with the felony offense of contacting the victim's family with the intent to harass under the ASORCNA. At that time, Guthrie also had another indictment pending charging him with two counts of failing to properly register as a sex offender as required by the ASORCNA. Guthrie entered into a plea agreement as to the ASORCNA violations, and he was sentenced to eight years' imprisonment; that sentence was split, and Guthrie was ordered to serve one year in a community-corrections program followed by four years' probation. While serving time in the community-corrections program, acting pro se, Guthrie sued Fanning seeking the damages at issue in this appeal. The circuit court entered judgment in favor of Fanning in the defamation case. Finding no reversible error, the Alabama Supreme Court affirmed judgment.

Hankton v. Louisiana

Court: Louisiana Supreme Court

Docket: 2020-C-00462

Opinion Date: December 11, 2020

Judge: Genovese

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

Plaintiff Sherome Hankton, an officer with the New Orleans Police Department, filed this personal injury suit for damages resulting from an attack upon her by a prisoner, Conrad Jackson, while Officer Hankton was guarding Jackson during a hospital stay. Following a bench trial, the trial court apportioned 50% fault to Jackson, 40% fault to the hospital, and 10% fault to Officer Hankton; it then awarded damages totaling $1,134,287.44. The court of appeal affirmed in part, amended in part, and affirmed as amended. The Louisiana Supreme Court granted certiorari to review the trial court’s allocation of fault. After review, the Supreme Court reallocated the percentages of fault: Jackson 50%, Officer Hankton 10%, University Hospital 25%, and NOPD 15%. As amended, the trial court's judgment was affirmed.

Rismiller v. Gemini Insurance Co.

Court: Louisiana Supreme Court

Docket: 2020-CA-00313

Opinion Date: December 11, 2020

Judge: Boddie

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

Defendant Gemini Insurance Company appealed a district court's holding La. C.C. arts. 2315.1, 2315.2 and 199 were “unconstitutional as applied to children given in adoption” and overruling the defendants’ peremptory exceptions of no right of action. At issue was whether plaintiffs Daniel Goins and David Watts, two adult children who were given in adoption as minors, had a right to bring wrongful death and survival actions stemming from the deaths of their biological father and his two minor children, who were not given in adoption, and were plaintiffs’ biological half-siblings. After a de novo review, based on the clear and unambiguous wording of La. C.C. arts. 2315.1 and 2315.2, the Louisiana Supreme Court concluded Goins and Watts were “children of the deceased” and “brothers of the deceased” who were permitted to bring wrongful death and survival actions arising from the death of their biological father and half-siblings. In view of the Court's holding that plaintiffs had a right to assert survival and wrongful death actions, the Court declined to address their argument that La. C.C. arts. 2315.1, 2315.2 and 199 were unconstitutional as applied to children given in adoption.

Somers v. S.D. Warren Co.

Court: Maine Supreme Judicial Court

Citation: 2020 ME 137

Opinion Date: December 15, 2020

Judge: Andrew M. Mead

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

The Supreme Judicial Court affirmed the judgment of the Workers' Compensation Board Appellate Division vacating the judgment of the administrative law judge (ALJ) denying Lorraine Somers's petition to have her benefits reinstated, holding that the Appellate Division did not err. The Board entered a decree permitting S.D. Warrant Company and its insurer (collectively, S.D. Warren) to discontinue paying Somers partial incapacity benefits when those payments had reached the 520-week statutory limit. Somers filed a petition to have her benefits reinstated, arguing that S.D. Warren failed to comply with Me. W.C.B. Rule, ch. 2, 5(1) (the former Rule) by not providing her with notice that she could be eligible for an extension of weekly benefits. An ALJ denied the petition. The Appellate Division vacated that decision. The Supreme Judicial Court affirmed, holding that S.D. Warren was required to give Somers notice pursuant to the former Rule before terminating her benefits.

Estate of Gorman v. Mississippi Gaming Commission

Court: Supreme Court of Mississippi

Citation: 2019-CA-01240-SCT

Opinion Date: December 17, 2020

Judge: Josiah D. Coleman

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

Robert Sharp shot and killed John Gorman during a firearm-training exercise ("a multitude of lapses in safety protocols"). Sharp and Gorman were employees of the Mississippi Gaming Commission and were acting in the course and scope of their employment. The Commission Shooting Review Board concluded that the incident “was an accidental discharge of an agency weapon,” it also concluded that the “failure to follow the prescribed policies, procedures and lesson plans” was the most significant contributing factor. After the incident, Gorman’s heirs began receiving automatic workers’ compensation payments. Each heir brought independent actions against the Commission that were later consolidated. Once consolidated, the Commission filed a joint motion for summary judgment in August 2017, stating the exclusivity of Mississippi Workers’ Compensation law barred further remedy. Gorman’s heirs opposed the motion by way of a pleading, memorandum, and a supplement with affidavits and admissions purportedly deemed admitted. The circuit court later granted summary judgment for the Commission. On appeal, the heirs argued: (1) the circuit court erred in determining the Workers' Compensation Act was the exclusive remedy to recover for the wrongful death of John Gorman; and (2) the circuit court erred in determining complete immunity applied regarding the Mississippi Tort Claims Act. Finding no triable issues of material fact in the record, the Mississippi Supreme Court affirmed the circuit court.

Venture, Inc. d/b/a Save-A-Lot v. Harris

Court: Supreme Court of Mississippi

Citation: 2019-IA-01498-SCT

Opinion Date: December 17, 2020

Judge: Chamberlin

Areas of Law: Civil Procedure, Personal Injury

Mattie Harris filed a premises-liability action against Venture, Inc., d/b/a/ Save-A-Lot after Harris allegedly tripped over the base of a temporary iron display rack while shopping at a Save-A-Lot grocery store. Harris claimed that Venture created a dangerous condition on the premises by placing a temporary iron display rack on the edge of a shopping aisle so that the base and the legs of the display rack protruded into the aisle and obstructed the walking clearance of customers. Harris claimed that Venture negligently maintained the premises by creating a dangerous condition on the premises and failed to warn invitees of the condition. The dangerous condition, Harris claimed, was the proximate cause of her fall and the resulting injuries. Both Harris and Venture moved for summary judgment, and Venture filed a motion to stay proceedings for the parties to complete discovery. The trial court granted in part Harris' motion on the issue of liability, and denied Venture's two motions. Aggrieved, Venture sought interlocutory appeal and argued the trial court abused its discretion by denying its Rule 56(f) motion and by granting Harris’s motion for summary judgment. Venture further asserted that the trial court erred by denying its motion for summary judgment because no unreasonably dangerous condition existed on the premises. Because this case was fact intensive and the two parties submitted conflicting evidence as to whether the rack constituted a dangerous condition, the Mississippi Supreme Court found that summary judgment in favor of either party was inappropriate and that the question of whether the rack constituted a dangerous condition should have been resolved by a trier of fact in a trial on the merits. Judgment was reversed and the matter remanded for further proceedings.

Hensley v. Montana State Fund

Court: Montana Supreme Court

Citation: 2020 MT 317

Opinion Date: December 16, 2020

Judge: Beth Baker

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

The Supreme Court affirmed the ruling of the Workers' Compensation Court that Mont. Code Ann. 39-71-703(2) did not violate Appellant's right to equal protection by denying an impairment award to a worker with a Class 1 impairment who has suffered no wage loss, holding that the statute passes rational basis muster under the Equal Protection Clause of the Montana Constitution. Section 39-71-703(2) allows impairment awards for claimants without actual wage loss only if they have a Class 2 or higher impairment rating. Appellant, who was designated as Class 1 and was denied an impairment award, challenged the statute, arguing that it violated her constitutional right to equal protection because other workers with different injuries but the same whole-person impairment percentage would receive the award. The WCC denied the challenge. The Supreme Court affirmed, holding that the WCC did not err in its determination that section 39-71-703(2) did not violate the Equal Protection Clause.

Plakorus v. University of Montana

Court: Montana Supreme Court

Citation: 2020 MT 312

Opinion Date: December 15, 2020

Judge: Beth Baker

Areas of Law: Personal Injury

The Supreme Court affirmed in part and reversed in part the district court's dismissal of Mark Plakorus's claims against the University of Montana, holding that Plakorus's amended complaint was sufficient to state tort claims for defamation and intentional interference but that the district court properly dismissed the remaining claims. The University employed Plakorus under contract as head coach of the women's soccer team. This case arose from the University's refusal to renew Plakorus's contract after finding on Plakorus's phone records alleged private contacts with Las Vegas escort services. In his complaint, Plakorus claimed that the University unlawfully disclosed confidential information from his personnel file, violated his privacy rights, defamed him, and interfered with his future business prospects. The district court granted the University's motion to dismiss, concluding that Plakorus's tort claims arose from the employment contract and were barred by the one-year statute of limitations under Mont. Code Ann. 18-1-402(2). The Supreme Court reversed in part, holding (1) the district court erred in concluding that the duties underlying all of Plakorus's claims arose solely under the contract, and the state tort claims for defamation and intentional interference survived the State's motion to dismiss; and (2) the district court correctly dismissed the remaining claims as time barred.

Parks v. Hy-Vee, Inc.

Court: Nebraska Supreme Court

Citation: 307 Neb. 927

Opinion Date: December 4, 2020

Judge: Papik

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

In this workers' compensation case, the Supreme Court affirmed the order of the compensation court granting Donna Parks compensation for chronic pain and aggravation of her mental health issues, both caused by a work-related low-back injury, holding that there was no merit to Hy-Vee Inc.'s arguments on appeal. Parks incurred a work-related injury in 2008 while employed by Hy-Vee and was granted compensation for her low-back injury. In 2017, the compensation court entered a further award granting Parks compensation for chronic pain and aggravation of her mental health issues caused by the low-back injury. Thereafter, the court modified the further award upon Parks' motion. The Supreme Court affirmed, holding (1) the compensation court's further award was not based on legal error; (2) the record supported the court's findings of fact, upon which the further award was based; and (3) the compensation court did not abuse its powers in modifying the further award.

Walker v. Second Judicial District Court

Court: Supreme Court of Nevada

Citation: 136 Nev. Adv. Op. No. 80

Opinion Date: December 10, 2020

Judge: Kristina Pickering

Areas of Law: Personal Injury

In these two personal injury disputes the Supreme Court denied Petitioners' petition for a writ of mandamus demanding that the Supreme Court reverse the district court's order denying their two motions to strike requests for trials de novo in their cases, holding that Petitioners did not offer any cogent, compelling reason for the Supreme Court to issue mandamus. In separate incidents, John Walker sustained injuries when Sheila Michaels collided with him, and Ralph Ortega received injuries after Katheryn Fritter rear-ended his vehicle. Walker sued Michaels, and Ortega sued Fritter. Both cases proceeded to arbitration. Michaels and Fritter each served offers of judgment, which Walker and Ortega, respectively, rejected. Ultimately, the arbitrators in Walker's and Ortega's cases found in their favor. Because Farmers Insurance insured both Michaels and Fritter, the same attorney, McMillen, represented the interests of both defendants. McMillen sought trials de novo in both cases. Walker and Ortega filed motions to strike the requests. After the district court rejected the motions to strike, Walker and Ortega filed this petition for a writ of mandamus. The Supreme Court denied their petition, holding that Petitioners failed to demonstrate a basis for the Supreme Court to grant either a traditional or advisory writ of mandamus.

Rentz v. BNSF Railway Co.

Court: North Dakota Supreme Court

Citation: 2020 ND 301

Opinion Date: December 17, 2020

Judge: Jon J. Jensen

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

BNSF Railway Co. (“BNSF”) appealed a jury verdict and money judgment entered in favor of David Rentz. In July 2012, a tractor-trailer driven by Rentz was struck by a train operated by BNSF and train engineer, Reinaldo Guitian, Jr. The collision occurred at a public railroad grade crossing. In December 2015, Rentz sued BNSF and Guitian for personal injuries sustained during the vehicle/train collision. Guitian was subsequently dismissed as a named defendant in the action. Trial was held over eleven days in January 2019. Guitian was designated as BNSF’s party representative under N.D.R.Ev. 615 and was not sequestered from the courtroom. The jury returned a verdict finding Rentz 15% at fault and BNSF 85% at fault. A money judgment was entered in favor of Rentz. BNSF asserted it was denied a fair trial because: (1) BNSF’s designated representative at trial was allowed to be questioned beyond the scope of his knowledge; (2) video and audio clips taken from discovery depositions of BNSF’s designated representatives were improperly played during opening and closing arguments; (3) BNSF’s internal operating procedures were improperly used to modify the standard of care; and (4) opinion testimony of the investigating highway patrol trooper was excluded from evidence. Because the North Dakota Supreme Court concluded the questioning of BNSF’s representative at trial exceeded his personal knowledge and affected a substantial right, judgment was reversed and the matter remanded for a new trial.

Graves v. Shoemaker

Court: Supreme Court of Virginia

Docket: 191500

Opinion Date: December 10, 2020

Judge: William C. Mims

Areas of Law: Personal Injury

In this personal injury case, the Supreme Court vacated the judgment of the circuit court in favor of Plaintiff in the amount of $3,000, plus interest, holding that the circuit court abused its discretion in denying Plaintiff's motion in limine seeking to introduce evidence regarding the defense's expert witness's financial relationship with State Farm. Plaintiff was injured when she was hit from behind by Defendant. Plaintiff brought this suit seeking $150,000 in damages. State Farm insured Defendant at the time of the accident. Dr. William Andres, an orthopedic surgeon, was engaged as the defense's expert witness. Before trial, Plaintiff filed a motion in limine seeking to introduce evidence of Dr. Andrews' previous relationship with State Farm. The court denied the motion. After trial, Plaintiff appealed, arguing that the circuit court's exclusion of evidence of Dr. Andrews' relationship with State Farm violated the Supreme Court's ruling in Lombard v. Rohrbaugh, 262 Va. 484 (2001). The Supreme Court affirmed, holding that the circuit court misinterpreted Lombard as holding that a party must demonstrate a "direct relationship" between an expert and an insurance company before cross-examining the expert on previous payments from the insurance company.