Latest 27 Cases This Week: Fidrych v. Marriott International, Inc. (4th Cir.), Ackerman v. U-Park, Inc. (8th Cir.), Noreja v. Commissioner, SSA ...

Which Laws Apply to Broker-Dealers? Federal Laws? State Laws? Both? General Principles Leading to an Answer

TAMAR FRANKEL

BU Law emerita professor Tamar Frankel explains the law of preemption as it pertains to broker-dealers and their investor clients. She predicts, among other things, that either the clients will demand that broker-dealers adhere to a fiduciary duty, or else that states will impose that duty on them.

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Fidrych v. Marriott International, Inc.

Court: US Court of Appeals for the Fourth Circuit

Docket: 18-2030

Opinion Date: March 2, 2020

Judge: Traxler

Areas of Law: Civil Procedure, Personal Injury

Plaintiff and his wife filed suit against Marriott after he was injured in an affiliated hotel in Milan, Italy. After Marriott failed to timely answer, the district court entered an entry of default. Five days after receiving notice of default, Marriott filed a motion to set aside the default, challenging the district court's personal jurisdiction over Marriott. The district court then set aside the default and subsequently granted Marriott's motion to dismiss based on lack of personal jurisdiction. The Fourth Circuit affirmed the district court's dismissal for lack of personal jurisdiction, holding that Marriott's contacts with South Carolina were not sufficient to render it "at home" in South Carolina, and thus the requirements for the exercise of contact-based general jurisdiction were not satisfied. Furthermore, the district court properly concluded that Marriott did not consent to the exercise of general jurisdiction when it obtained a Certificate of Authority to conduct business in the state. Finally, the court held that Marriott's case-related contacts with South Carolina were too tenuous and too insubstantial to constitutionally permit the exercise of specific jurisdiction over Marriott. However, the court vacated the district court's denial of sanctions, remanding the issue for reconsideration.

Ackerman v. U-Park, Inc.

Court: US Court of Appeals for the Eighth Circuit

Docket: 19-1814

Opinion Date: March 3, 2020

Judge: Erickson

Areas of Law: Personal Injury

Plaintiff filed suit alleging that she suffered permanent injuries from a fall caused by the negligent removal of ice and maintenance of an asphalt parking lot operated by U-Park. Plaintiff's husband sought damages for loss of consortium. The Eighth Circuit affirmed the district court's grant of U-Park's motion in limine to exclude an expert's opinions on causation. The court explained that, in the absence of any record evidence that the expert used reliable principles and methods or applied them reasonably to the facts of this case to form his opinion that plaintiff's fall was caused by black ice forming in a birdbath, his opinion did not satisfy Federal Rule of Evidence 702 standards for admissibility. The court also affirmed the district court's grant of U-Park's motion for summary judgment. Under Nebraska premises liability law, there was no evidence in the record from which the court could draw a reasonable inference that if the ice was visible and apparent that plaintiff would not discover or realize the danger of the ice or fail to protect herself against it.

Noreja v. Commissioner, SSA

Court: US Court of Appeals for the Tenth Circuit

Docket: 18-1383

Opinion Date: March 5, 2020

Judge: Mary Beck Briscoe

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

Arthur Noreja appeals the denial of his claim for disability benefits. Noreja filed his disability claim in March 2012. In July 2013, following a hearing, an ALJ issued a detailed written order – exceeding 13 pages with single spacing – in which she denied Noreja’s claim. The ALJ found Noreja had several severe impairments, including “arthritis of the left upper extremity and right lower extremity,” “cognitive disorder,” and “headaches.” Nevertheless, the ALJ determined that these impairments (or a combination of the impairments) did not warrant relief. The ALJ found that Noreja had the residual functional capacity (“RFC”) to do “medium” work, subject to various limitations, and that there were “jobs that exist in significant numbers in the national economy” which Noreja could perform. The Appeals Council disagreed with the ALJ’s assessment, and remanded with direction for further proceedings. Once more, however, the ALJ determined that Noreja did not have “an impairment or combination of impairments” that warranted relief, reiterated that Noreja had the RFC to do "medium" work, subject to various limitations, and that there were jobs in existence "in significant numbers" which Noreja could perform. The ALJ did not obtain a new consultative mental examination before issuing her May 2016 decision, but she procured additional evidence regarding Noreja’s impairments. On appeal of the second ALJ decision, Noreja alleged the ALJ failed to follow an instruction in the Appeals Council's remand order. The Tenth Circuit held: (1) it had jurisdiction to determine whether an alleged ALJ violation of an Appeals Council order warranted reversal; but (2) the Court's “usual” review standards remained in force, meaning that the alleged violation was material only if it showed the ALJ meaningfully failed to apply the correct legal standards, or the denial of benefits was unsupported by substantial evidence; and (3) applying those standards here, the ALJ’s denial of Noreja’s application had to be affirmed.

Barrientos v. CoreCivic, Inc.

Court: US Court of Appeals for the Eleventh Circuit

Docket: 18-15081

Opinion Date: February 28, 2020

Judge: Hull

Areas of Law: Criminal Law, Government Contracts, Personal Injury

Plaintiffs, current and former alien detainees, filed a class action under the Trafficking Victims Protection Act (TVPA) and Georgia law, alleging that CoreCivic, a private contractor which owns and operates the Stewart Detention Center, coerces alien detainees to perform labor at the detention center by, inter alia, the use or threatened use of serious harm, criminal prosecution, solitary confinement, and the withholding of basic necessities. The Eleventh Circuit affirmed the district court's denial of CoreCivic's motion to dismiss the complaint and held that the TVPA applies to private for-profit contractors operating federal immigration detention facilities. Specifically, the court held that, under the plain language of the statute, the TVPA covers the conduct of private contractors operating federal immigration detention facilities; the TVPA does not bar private contractors from operating the sort of voluntary work programs generally authorized under federal law for aliens held in immigration detention facilities; but private contractors that operate such work programs are not categorically excluded from the TVPA and may be liable if they knowingly obtain or procure the labor or services of a program participant through the illegal coercive means explicitly listed in the TVPA.

Birmingham Broadcasting

Court: Supreme Court of Alabama

Docket: 1180343

Opinion Date: February 28, 2020

Judge: Stewart

Areas of Law: Communications Law, Personal Injury

In 1992, Leslie Hill pleaded guilty to five misdemeanor counts of distributing obscene material for renting adult videos at a video-rental store he owned. In November 2013, Hill was arrested in Homewood on a misdemeanor charge of harassing communications. Pursuant to that arrest, the Sheriff's Department determined that, based on Hill's 1992 convictions, he was required to register as a sex offender under the Sex Offender Registration and Community Notification Act ("SORNA"). Hill refused to do so on the ground that the 1992 convictions did not qualify as sex offenses under SORNA. The Sheriff's Department collaborated with WVTM-TV on a weekly televised news segment entitled "To Catch a Predator;" the Department would “select somebody that we were either having trouble finding or somebody that had refused to come register or whatever the case may be. . . .And we would type up a script for the Sheriff to read, and then we would take it over to his office and he would read it basically in front of one of the TV cameras in his office to run on TV." Hill was featured on the December 6, 2013, segment of "To Catch a Predator." After the December 6 broadcast, Hill, through his attorney, contacted the district attorney’s office expressing his opinion that his 1992 convictions did not constitute a sex offense under SORNA. A deputy district attorney agreed and requested that the warrants be recalled. On December 10, 2013, both warrants issued against Hill were recalled. Neither Hill nor his attorney contacted WVTM after the December 6 broadcast to inform it that the warrants against Hill had been recalled. On a December 13 airing of the program, a news anchor stated the warrants against Hill had been recalled. Nevertheless, Hill sued Sheriff Hale, a deputy and lieutenant, and WVTM, alleging state-law claims of defamation, false light, negligent training and supervision, and the tort of outrage against all defendants. In appeal no. 1180343, Birmingham Broadcasting (WVTM-TV) appealed a $250,000 judgment entered on a defamation verdict against it. In appeal no. 1180370, Hill appealed the dismissal of all the claims Hill asserted against three members of the Jefferson County Sheriff's Department ("the Sheriff's Department") on the basis of state immunity. After review, the Alabama Supreme Court reversed judgment in appeal no. 1180343 and rendered judgment in favor of WVTM, and affirmed judgment in appeal no. 1180370.

Ex parte Drury Hotels Company, LLC.

Court: Supreme Court of Alabama

Docket: 1181010

Opinion Date: February 28, 2020

Judge: Tommy Bryan

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

Drury Hotels Company, LLC ("Drury"), petitioned the Alabama Supreme Court for a writ of mandamus to direct the Montgomery Circuit Court to dismiss Maritza Diaz's tort claims against Drury. Diaz worked as a housekeeper at Drury's hotel in Montgomery. In her complaint, Diaz alleged that she was working at the hotel when she was attacked by an unknown assailant. Diaz alleged that the assailant "sexually assaulted and robbed [her] by placing a knife to her throat, threatening to harm [her], attempting to force [her to] have sexual intercourse and taking approximately $200 in property from [her]." Diaz further claimed that the assault caused her serious bodily injuries, emotional distress, and mental anguish. In December 2018, Diaz sued Drury, alleging claims of negligence and wantonness based on allegations that Drury had failed to provide a secure workplace. Diaz also alleged a claim of negligence based on the theory of premises liability, and she alleged claims against fictitiously named parties. As an alternative to her tort claims, Diaz also alleged a claim for workers' compensation benefits under the Act if her injuries are in fact covered under the Act. Given the procedural posture of this case and the arguments presented, the Supreme Court concluded Drury did not establish a clear legal right to mandamus relief. Thus, Drury's petition for a writ of mandamus was denied. The Court made no conclusion regarding whether Drury could ultimately be entitled to immunity under the exclusive-remedy provisions of the Act.

Brewer v. Remington

Court: California Courts of Appeal

Docket: F076467(Fifth Appellate District)

Opinion Date: March 4, 2020

Judge: Meehan

Areas of Law: Medical Malpractice, Personal Injury

Plaintiff and her husband filed a medical malpractice action against Doctors Medical and others, including Defendant Remington, after plaintiff became paralyzed following carpel tunnel surgery. Remington performed the spinal decompression surgery on plaintiff after she became paralyzed, but she did not recover a substantial amount of function following the surgery. The Court of Appeal held that the trial court properly granted the motion for a new trial and affirmed the judgment. The court agreed with the trial court that granting summary judgment in favor of Remington on statute of limitations grounds constituted an error of law. The court wrote that the persistence of plaintiff's symptoms was not necessarily an appreciable manifestation of harm from Remington's treatment. The court held that there is a factual dispute regarding when plaintiff experienced appreciable harm that would have caused a reasonable person to be suspicious of Remington's wrongdoing.

Lincoln Unified School Dist. v. Superior Court

Court: California Courts of Appeal

Docket: C088857(Third Appellate District)

Opinion Date: March 3, 2020

Judge: Renner

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

This proceeding stemmed from a minor’s collapse during football try-outs at Lincoln High School in Stockton in 2017. Respondent Shynelle Jones presented a timely claim on behalf of her son, Jayden, to the Lincoln Unified School District under the Government Claims Act. About four months later, Jones submitted an application to the school district for leave to present a late claim on her own behalf based on her allegedly newfound realization of the severity of her son’s injuries, their impact on her own life, and her right to file her own claim. She declared that up until that point she had been able to attend to her own interests. After the application was denied, Jones filed a petition for relief from the claim presentation requirement in the superior court based on the same facts. At the hearing on her petition, her counsel, Kenneth Meleyco, presented a new explanation for the delay in submitting Jones’s claim: the day after Jones presented a claim on her son’s behalf, she retained Meleyco on her own behalf, and an error in the handling of Meleyco’s dictated memo within his office prevented the earlier preparation of Jones’s claim. The superior court granted Jones’s petition, despite noting “legitimate concerns regarding [her] credibility” because it “determined based on the directives provided in case law, to provide relief from technical rules, that [Jones] has met her burden of proof to demonstrate that her neglect was excusable.” The Court of Appeal found this ruling was an abuse of the trial court’s discretion. "[T]he general policy favoring trial on the merits cannot justify the approval of a petition that is not credible and that does not demonstrate a right to relief by a preponderance of the evidence." The Court issued a writ of mandate compelling the superior court to vacate its order and enter a new order denying Jones relief from the claim presentation requirement.

Reed v. City of Los Angeles

Court: California Courts of Appeal

Docket: B294531(Second Appellate District)

Opinion Date: February 28, 2020

Judge: Victoria Gerrard Chaney

Areas of Law: Personal Injury

Plaintiff filed suit against the city for injuries he sustained when he rode his bicycle into a rope attached to a badminton net stretched across a paved path in MacArthur Park. The Court of Appeal affirmed the trial court's grant of the city's motion for summary judgment, holding that plaintiff's claims were barred by the doctrine of trail immunity. In this case, the danger was inherently connected to and existed only because of its connection with the trail. The court explained that a badminton net is not a dangerous object in its ordinary context, but a badminton net stretched across a trail may create a dangerous condition. The court wrote that this was only true because it impedes the regular use of the trail.

Washington v. Delaware Transit Corp

Court: Delaware Supreme Court

Docket: 333, 2019

Opinion Date: March 2, 2020

Judge: Karen L. Valihura

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

Claimant LeShawn Washington suffered an injury to his left shoulder in a work-related incident in 2016 and was placed on disability. Upon returning to work, he claimed that his shoulder symptoms had worsened. Claimant filed a petition seeking compensation for a recurrence of temporary total disability (the “TTD Petition”), which the Accident Board (the “IAB”) denied (the “TTD Opinion”). Claimant then filed a permanent impairment ("PI") Petition. Claimant's employer, Delaware Transit Corporation, successfully moved to dismiss, arguing the IAB had previously ruled on the matter during Claimant’s TTD Petition hearing when it stated that Claimant had “fully recovered” from his work injury. In preparing for the hearing on the PI Petition, both parties obtained medical expert opinions regarding the degree of Claimant’s permanent impairment. Both parties’ experts agreed that there was some degree of permanent impairment. Nevertheless, DTC moved to dismiss the PI Petition at the commencement of the hearing. The IAB agreed with the employer, and dismissed the PI petition on those grounds, before considering the permanent impairment testimony. Claimant appealed the IAB’s decision to the Superior Court, arguing that the IAB never concluded that he had “fully recovered.” Furthermore, Claimant argued: (1) the Superior Court erred in concluding that the Board had reasonably interpreted the TTD Opinion; and (2) the Superior Court erred as a matter of law in holding that the Board’s dismissal of his PI Petition was supported by substantial evidence. The Delaware Supreme Court held the Superior Court erred in affirming the Board’s decision to deny Claimant’s PI Petition. "Although the Board is permitted to interpret its own orders and rulings, the Board erred when it dismissed Claimant’s PI Petition based solely on the expert testimony presented in connection with his TTD Petition." The decision was reversed and the matter remanded for further proceedings.

Dept. of Public Safety v. Ragsdale

Court: Supreme Court of Georgia

Docket: S19G0422

Opinion Date: February 28, 2020

Judge: Ellington

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

Matthew Ragsdale filed this personal injury action against the Georgia Department of Public Safety (“DPS”) after he was injured during an October 31, 2014 motor vehicle accident that occurred when Ross Singleton, the driver of another vehicle, fled from law enforcement. Ragsdale sent an ante litem notice to the Department of Administrative Services (“DOAS”) on December 3, 2014. The notice provided on that date failed to include all the information required by OCGA 50-21-26 (a) (5). Ragsdale filed suit, but dismissed this initial filing based on the deficiency of his first ante litem notice. Thereafter, in March 2017, Ragsdale sent a second ante litem notice to DOAS. Ragsdale then renewed the action, and [DPS] filed its motion to dismiss the appeal, contending that the March 2017 ante litem notice was untimely. In response, Ragsdale argued that because he was the victim of Singleton’s crime, the time for filing the ante litem notice had been tolled “from the date of the commission of the alleged crime or the act giving rise to such action in tort until the prosecution of such crime or act has become final or otherwise terminated” pursuant to OCGA 9-3-99. The trial court agreed and denied the motion to dismiss in a single-sentence order, citing Ragsdale's arguments in response to the motion to dismiss. The Court of Appeals affirmed the denial of DPS’s motion to dismiss, following cases in which that court had previously “determined that limitation period tolling statutes apply to the period for filing ante litem notice as well as for filing suit.” The Georgia Supreme Court found the Georgia Tort Claims Act's ante litem notice period was not subject to tolling under OCGA 9-3-99.

Burton v. Benner

Court: Supreme Court of Indiana

Docket: 19S-CT-549

Opinion Date: March 3, 2020

Judge: Steven H. David

Areas of Law: Personal Injury

The Supreme Court affirmed the judgment of the trial court awarding summary judgment in favor of Indiana State Trooper Martin Benner and dismissing Plaintiff's claim against Benner in his personal capacity after the two were involved in an accident, holding that, although there was some evidence that Trooper Benner was not in strict compliance with State Police policy at the time of the accident, this was not enough to place him "clearly outside" the scope of his employment. At the time of the accident, Trooper Benner was off duty but was operating his state issued police commission, as allowed under the State Police policy. The trial court awarded summary judgment for Benner, concluding that although Benner was off duty he was otherwise in substantial compliance with State Police policy in operating his commission and was therefore not clearly outside the scope of his employment. The Supreme Court affirmed, holding that there was no genuine issue of material fact as to whether Benner was acting clearly outside the scope of his employment.

Cavanaugh's Sports Bar & Eatery, Ltd. v. Porterfield

Court: Supreme Court of Indiana

Docket: 20S-CT-88

Opinion Date: March 3, 2020

Judge: Mark S. Massa

Areas of Law: Personal Injury

The Supreme Court reversed the judgment of the court of appeals affirming the judgment of the trial court denying Cavanaugh's Sports Bar & Eatery's motion for summary judgment as to Eric Porterfield's complaint alleging negligence after a sudden fight in the bar's parking lot at closing time left him seriously injured, holding that, under the facts of this case, Cavanaugh's owed no duty to protect Porterfield from the parking lot brawl. In his complaint, Porterfield alleged that Cavanaugh's breached its duty to protect him when Cavanaugh's had experienced criminal activity for years prior to the attack on Porterfield. Cavanaugh's filed a motion for summary judgment arguing that it owed no duty to Porterfield because the incident was unforeseeable. The trial court denied the motion, and the court of appeals affirmed. The Supreme Court reversed, holding that Cavanaugh's had no duty to protect Porterfield because no evidence showed that Cavanaugh's knew the fight was impending.

Thornton v. American Interstate Insurance Co.

Court: Iowa Supreme Court

Docket: 18-0809

Opinion Date: February 28, 2020

Judge: Brent R. Appel

Areas of Law: Labor & Employment Law, Personal Injury

The Supreme Court reversed the judgment of the district court awarding Plaintiff compensatory and punitive damages in his action for first-party bad faith in connection with a workers' compensation claim, holding that the compensatory award must be reduced and that, under the federal Due Process Clause, the maximum amount of punitive damages that may be awarded under the facts of this case was $500,000. Plaintiff, who was severely injured at work, brought this lawsuit alleging that a workers' compensation insurance carrier acted in bad faith to delay the receipt of benefits to which Plaintiff was entitled. On retrial, the jury returned a verdict in favor of Plaintiff for $382,000 in compensatory damages and $6,750,000 in punitive damages. The Supreme Court reversed, holding (1) Plaintiff failed to offer substantial evidence to support his claim that the insurance carrier engaged in bad faith in connection with an alleged delay in acquisition of a replacement wheelchair; (2) with respect to the permanently and totally disabled bad-faith claim, the evidence supported actual damages of no more than $58,452,42; and (3) the maximum amount of punitive damages that may be awarded in this case is $500,000.

Neal v. Baltimore City Board of School Commissioners

Court: Maryland Court of Appeals

Docket: 21/19

Opinion Date: February 28, 2020

Judge: Getty

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

In this appeal concerning whether a school board was liable for a judgment against its employee when the board was dismissed from the case prior to trial the Court of Appeals held that, under Md. Cts. & Jud. Proc. 5-518, even if a board is entitled to substantive dismissal from a case the plaintiffs are required to maintain the board as a party or request that the board be brought back into the case to indemnify an employee. As a matter of trial strategy in a case against the Baltimore City Board of School Commissioners, counsel for Plaintiffs decided to not appeal the dismissal, via summary judgment, of the Board from the case and to avoid joinder of the Board under after the conclusion of the trial. After the trial, Plaintiffs filed motions to enforce the judgments, arguing that the Board was obligated to satisfy the judgments pursuant to section 5-518. The circuit court granted Plaintiffs' motions. The court of special appeals reversed. The Court of Appeals affirmed, holding that, in order to force a county school board to indemnify a judgment against a county board employee, the mandatory joinder requirement under section 5-518 requires that a county board be joined as a party throughout the entire litigation.

Pinner v. Pinner

Court: Maryland Court of Appeals

Docket: 16/19

Opinion Date: March 3, 2020

Judge: Booth

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

The Court of Appeals affirmed the judgment of the court of special appeals reversing the circuit court's decision determining that it had personal jurisdiction over Defendant and entering a judgment in favor of Plaintiff, holding that the factors weighed against the constitutional reasonableness of causing Defendant to defend this suit in Maryland. This case was filed by Defendant's stepson, who was a North Carolina resident, against Defendant, who was also a North Carolina resident. Plaintiff ultimately obtained a default judgment against Defendant in the amount of $99,856.84. The court of special appeals reversed the circuit court's decision with respect to the finding of personal jurisdiction. The Court of Appeals affirmed, holding that Defendant's act of filing a sole lawsuit through counsel did not rise to the level of a "persistent course of conduct" to justify the assertion of personal jurisdiction over her in this matter.

Doherty v. Diving Unlimited International, Inc.

Court: Massachusetts Supreme Judicial Court

Docket: SJC-12707

Opinion Date: February 27, 2020

Judge: Lowy

Areas of Law: Contracts, Personal Injury

In this wrongful death action, the Supreme Judicial Court affirmed the judgment of the superior court granting summary judgment in favor of Defendant based on the release from liability and covenant not to sue that the decedent signed before his death, holding that the beneficiaries of a wrongful death action have rights that are derivative of, rather than independent from, any claim the decedent could have brought for the injuries causing his death. The decedent, a certified open-water scuba diver, drowned while participating in a promotional diving equipment sponsored by Diving Unlimited International, Inc. (DUI). The decedent signed a release from liability prior to participating in the event. Plaintiff, in her capacity as the decedent's personal representative, sued DUI and Defendant, a DUI agent, for the benefit of the decent's statutory beneficiaries. Plaintiff settled with all defendants other than Defendant. The superior court then granted summary judgment in favor of Defendant, concluding that the waivers the decedent signed were valid and thus precluded any recovery on behalf of the decedent's beneficiaries, who had no rights independent of the decedent's cause of action, which was waived. The Supreme Judicial Court affirmed, holding that the valid waivers signed by the decedent precluded Plaintiff from bringing a lawsuit for the benefit of the statutory beneficiaries.

Drake v. Town of Leicester

Court: Massachusetts Supreme Judicial Court

Docket: SJC-12781

Opinion Date: February 28, 2020

Judge: Lowy

Areas of Law: Personal Injury

The Supreme Judicial Court affirmed the judgment of the Supreme Judicial Court dismissing Plaintiff's negligence action against the Town of Leicester due to her untimely presentment, holding that Plaintiff's presentment was untimely because presentment occurs upon delivery to the office of the proper executive officer. Exactly two years after her claim arose, Plaintiff mailed her presentment letter to the Town. The Town denied liability for Plaintiff's injuries, and Plaintiff brought this action the following month. The superior court dismissed Plaintiff's complaint as untimely. At dispute on appeal was whether placing a presentment letter in the mail constitutes presentment under Mass. Gen. Laws ch. 258, 4 or receipt by the proper executive officer. The Supreme Judicial Court affirmed on a third ground, holding (1) presentment occurs upon delivery to the office of the proper executive officer; and (2) therefore, Plaintiff's presentment was untimely.

GGNSC Administrative Services, LLC v. Schrader

Court: Massachusetts Supreme Judicial Court

Docket: SJC-12714

Opinion Date: February 27, 2020

Judge: Lowy

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

In this wrongful death action brought against a nursing home notwithstanding the existence of an arbitration agreement between the decedent and the nursing home the Supreme Judicial Court answered two certified questions by holding that the Legislature intended wrongful death actions to be derivative of the decedent's own cause of action and that, under the circumstances of this case, the arbitration agreement between the decedent and the nursing home controlled the decedent's statutory beneficiaries. After the decedent died in a nursing home, Plaintiff, her daughter, brought this wrongful death action. The United States Court of Appeals for the First Circuit certified two questions to the Supreme Judicial Court. The Supreme Court answered (1) the wrongful death statute, Mass. Gen. Laws ch. 229, 2, provides rights to statutory beneficiaries derivative of, rather than independent from, what would have been the decedent's action for the injuries causing her death; and (2) the arbitration clause in this case was enforceable.

Wolfe v. Delta Discount Drugs, Inc.

Court: Supreme Court of Mississippi

Citation: 2019-CA-00160-SCT

Opinion Date: March 5, 2020

Judge: Chamberlin

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

In May, 2015, Spencer Wolfe was being treated for high blood pressure and was prescribed two milligrams of hydralazine two times a day. Some time between May 20, 2015, and May 27, 2015, Wolfe had this prescription filled at Delta Discount Drugs. Delta, however, allegedly mis-filled Wolfe’s prescription with twenty-five milligram tablets of hydroxyzine, rather than the prescribed two milligram tablets of hydralazine. Less than a month later, on June 19, 2015, Wolfe was hospitalized after he had blacked out while driving. The issue this case presented for the Mississippi Supreme Court's review was whether a claim asserted against a pharmacy for allegedly mis-filling a prescription was subject to the two-year professional-malpractice statute of limitations in Mississippi Code Section 15-1-36 or the three-year catch-all statute of limitations in Mississippi Code Section 15-1-49. The Circuit Court ruled that Section 15-1-36 applied to Wolfe’s claims against Delta Discount Drugs and granted Delta’s motion to dismiss with prejudice because Wolfe’s claims were filed beyond the two-year statute of limitations found in Section 15-1- 36. Aggrieved, Wolfe has timely appealed to this Court. After review, and finding no reversible error in that decision, the Supreme Court affirmed.

Brown v. State

Court: Nebraska Supreme Court

Citation: 305 Neb. 111

Opinion Date: February 28, 2020

Judge: Stacy

Areas of Law: Personal Injury

The Supreme Court reversed the judgment of the district court dismissing with prejudice Plaintiff's action against the State alleging negligence under the State Tort Claims Act (STCA), Neb. Rev. Stat. 81-8,209 to 81-8,235, on the grounds that the recreational activity exception applied to the facts of this case, holding that Plaintiff's tort claim was not barred by the reaction activity exception. Plaintiff was injured at a state recreational area when a riding lawnmower struck the picnic table where Plaintiff was sitting. Plaintiff brought this tort action against the State. The district court dismissed the action for lack of subject matter jurisdiction, finding that the State had not waived its sovereign immunity because Plaintiff's claim fell within the STCA's recreational activity exception. The Supreme Court reversed, holding that, at this stage in the proceeding, the allegations of Plaintiff's complaint and the reasonable inferences therefrom did not allow a court to find as a matter of law that Plaintiff's tort claim was barred by the recreational activity exception of section 81-8,219(14)(a)(i).

Lanham v. BNSF Railway Co.

Court: Nebraska Supreme Court

Citation: 305 Neb. 124

Opinion Date: February 28, 2020

Judge: Michael G. Heavican

Areas of Law: Civil Procedure, Personal Injury

The Supreme Court reversed the order of the district court overruling BNSF Railway Company's motion to dismiss for lack of jurisdiction this negligence action brought under the Federal Employers' Liability Act (FELA), 45 U.S.C. 51 through 60, holding that the district court erred in determining that it could exercise personal jurisdiction over BNSF for claim that were unrelated to BNSF's instate activity. Plaintiff was seriously injured while working for BNSF on a section of train tracks near Houston, Texas. Plaintiff filed a complaint in the district court under FELA, alleging that his injuries were a result of BNSF's negligence. BNSF filed a motion to dismiss the complaint, arguing that the district court lacked jurisdiction because BNSF was not "at home" in Nebraska and because Plaintiff's injuries had occurred in Texas. The district court overruled the motion to dismiss, finding that BNSF consented to personal jurisdiction by registering to do business in Nebraska. The Supreme Court reversed, holding that BNSF was not "at home" in Nebraska for purposes of general jurisdiction and that treating BNSF's registration to do business in Nebraska as implied consent to personal jurisdiction would exceed the due process limits set forth in prior cases.

Abrams v. Sanson

Court: Supreme Court of Nevada

Citation: 136 Nev. Adv. Op. No. 9

Opinion Date: March 5, 2020

Judge: Stiglich

Areas of Law: Personal Injury

In this defamation action, the Supreme Court affirmed in part and reversed in part the district court's orders granting the anti-SLAPP special motions to dismiss filed by Steve Sanson and Louis Schneider, holding that Sanson's allegedly defamatory statements regarding Jennifer Abrams' conduct at and following a family court proceeding against Schneider, opposing counsel, fell within the protection of Nevada's anti-SLAPP statutes but that the district court erred as to Sanson's private telephone statements to nonparty David Schoen. Schneider allegedly gave video of a closed-court hearing in the family law case to Sanson, who published articles on his website concerning Abrams' courtroom conduct and practices. The articles were sent to email subscribers and published through social media outlets. Abrams sued Sanson and Schneider alleging, inter alias, defamation. The district court granted Defendants' special motions to dismiss. The Supreme Court affirmed in part and reversed in part, holding (1) Sanson met his burden under the first prong of the anti-SLAPP analysis, and Abrams did not prove with prima facie evidence a probability of prevailing on her claims; and (2) the district court erred as to Sanson's statements to Schoen because private telephone conversations are not statements made in a place open to the public or in a public forum.

State ex rel. Digiacinto v. Industrial Commission

Court: Supreme Court of Ohio

Citation: 2020-Ohio-707

Opinion Date: March 3, 2020

Judge: Per Curiam

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

The Supreme Court reversed the judgment of the court of appeals granting a limited writ of mandamus ordering the Industrial Commission of Ohio to vacate its decision denying the request of Paul Digiacinto for permanent total disability (PTD) compensation and to hold a new hearing on Digiacinto's PTD application, holding that the Tenth District erred in holding that the Commission's failure to mention an ALJ's earlier decision granting Digiacinto's request for social security disability benefits in its order was an abuse of discretion. In 2001, Digiacinto suffered a workplace injury. In 2003, an ALJ granted Digiacinto's request for social security disability benefits. In 2015, Digiacinto filed a third application for PTD compensation. The Commission denied the application, concluding that Digiacinto had voluntarily abandoned the workforce, rendering him ineligible for compensation. Digiacinto then brought this mandamus action seeking an order for the Commission to vacate its order denying his PTD application. The court of appeals granted a limited writ, holding that the Commission's failure to mention the ALJ's decision in its order was an abuse of discretion. The Supreme Court reversed, holding (1) the Commission was not required to discuss the ALJ's decision; and (2) the ALJ's decision was not key to the success or failure of the PTD application.

Willeford v. Klepper

Court: Tennessee Supreme Court

Docket: M2016-01491-SC-R11-CV

Opinion Date: February 28, 2020

Judge: Bivins

Areas of Law: Constitutional Law, Health Law, Medical Malpractice, Personal Injury

The Supreme Court vacated the qualified protective order entered by the trial court in this case, holding that Tenn. Code Ann. 29-26-121(f) is unconstitutional as enacted to the limited extent that it divests trial courts of their inherent discretion over discovery and that the statute can be elided to make it permissive and not mandatory upon trial courts. Plaintiff filed this healthcare liability wrongful death lawsuit on behalf of the decedent alleging that Defendant's negligent treatment of the decedent resulted in the decedent's death. During discovery, Defendants filed a motion for a qualified protective order pursuant to section 29-26-121(f), which allows defense counsel to conduct ex parte interviews with patients' non-party treating healthcare providers in a healthcare liability lawsuit. In response, Plaintiff argued that the statute is unconstitutional because it deprives the trial court of its inherent authority over court proceedings. The trial court entered a written qualified protective order allowing the interviews. The Supreme Court vacated the qualified protective order, holding (1) section 29-26-121(f) impermissibly intrudes on the authority of the judiciary over procedural matters; and (2) the unconstitutional portion of the statute may be elided, and the statute as elided is constitutional.

Lang v. Lions Club of Cudahy Wisconsin, Inc.

Court: Wisconsin Supreme Court

Docket: 2017AP002510

Opinion Date: March 5, 2020

Judge: Patience D. Roggensack

Areas of Law: Personal Injury

The Supreme Court reversed the decision of the court of appeals reversing the judgment of the circuit court concluding that Fryed Audio, LLC was entitled to recreational immunity from Plaintiff's tort action, holding that Fryed Audio was entitled to immunity pursuant to Wis. Stat. 895.52(2). Fryed Audio was a member of Rhythm Method, LLC, with whom the Lions Club of Cudahy Wisconsin, Inc. contracted to provide music for its festival. At the event. Plaintiff allegedly tripped on an electronic cord that Steven Fry, the sole member of Fryed Audio, laid. Plaintiff sued Fryed Audio for negligence. Fryed Audio moved for summary judgment under Wis. Stat. 895.52(2), which provides that agents of owners have immunity from claims by those who enter property of a statutory owner to engage in recreational activity. The circuit court granted the motion. The court of appeals reversed, concluding that the Lions Club lacked the right to control Fryed Audio. The Supreme Court reversed, holding (1) there were no issues of material fact as to the Lions Club's right to control Fryed Audio in regard to laying the cords, and Fryed Audio was an agent of the Lions Club; and (2) the Lions Club was a statutory owner, and therefore, Fryed Audio was entitled to immunity.

Lower v. Peabody Powder River Services, LLC

Court: Wyoming Supreme Court

Citation: 2020 WY 33

Opinion Date: March 4, 2020

Judge: Gray

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

The Supreme Court affirmed the decision of the district court upholding the decision oft he Office of Administrative Hearings (OAH) denying workers' compensation benefits to Appellant, holding that a previous order by the OAH was not a final, appealable order and that collateral estoppel was not applicable. Appellant filed for workers' compensation benefits after his leg was amputated below the knee. The Department of Workforce Services, Workers' Compensation Division (the Division) denied the claim. Appellant appealed, but while the contested case hearing was pending the Division withdrew its denial of benefits. In response, the OAH issued an order vacating the hearing and directing the Division to award workers' compensation benefits. The Division issued a redetermination in favor of Appellant. Appellant's employer objected, and after a contested case hearing, OAH denied workers' compensation benefits. The district court upheld the OAH decision denying benefits. On appeal, Appellant claimed that the first OAH order was a final appealable order awarding benefits and that his employer was collaterally estopped from objecting to the Division's redetermination awarding benefits. The Supreme Court disagreed, holding that the first OAH order was not a "prior adjudication" of workers' compensation benefits and provided no basis to implicate the principle of collateral estoppel.