Impeaching a Former President Is Plainly Constitutional

NEIL H. BUCHANAN

UF Levin College of Law professor and economist Neil H. Buchanan argues that the text of the Constitution makes clear that Congress has the power to impeach and convict Donald Trump, even though he is no longer President. Buchanan describes the unambiguous textual support for this conclusion, which Buchanan (and others) argue is also amply supported by the Constitution’s purpose, structure, and other interpretive approaches.

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Smith v. Schlage Lock Company, LLC

Court: US Court of Appeals for the Fourth Circuit

Docket: 19-1391

Opinion Date: January 27, 2021

Judge: Per Curiam

Areas of Law: Personal Injury

After Julian Jackson Smith was diagnosed with mesothelioma, he died the following year. Before his death, Mr. Smith and his wife filed suit alleging that Schlage Lock and dozens of other defendants may have exposed Mr. Smith to asbestos at some point in the past. Plaintiffs sued Schlage Lock on the theory that Mr. Smith inhaled asbestos fibers while working as a pipefitter during the construction of a Schlage Lock plant in Rocky Mount, North Carolina in 1972. The Fourth Circuit affirmed the district court's grant of summary judgment in favor of Schlage Lock, agreeing with the district court that there was a lack of evidence that Mr. Smith was exposed to asbestos at the Schlage Lock site which later caused his mesothelioma. In this case, Schlage Lock not only pointed to Mrs. Smith's lack of evidence of causation, but also put forth affirmative evidence that there had never been asbestos at the plant. The court explained that, even viewing the evidence in the light most favorable to Mrs. Smith, it does not create a genuine issue of material fact as to whether Mr. Smith was exposed to asbestos at the plant. Furthermore, even if Mr. Smith had been exposed to asbestos at the Schlage Lock site, Schlage Lock cannot be held liable for any related injuries because the exposure arose incident to his work for an independent contractor. Therefore, the independent-contractor exception to landowner liability would apply here.

Peterson v. Wexford Health Sources, Inc.

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-2592

Opinion Date: January 26, 2021

Judge: KANNE

Areas of Law: Civil Rights, Constitutional Law, Criminal Law, Medical Malpractice, Personal Injury

In 2015, inmate Peterson suffered from genital warts. Davida, a Stateville Correctional Center physician employed by Wexford, prescribed a topical medication (Podocon-25), which is caustic and should be applied sparingly, then removed thoroughly. PODOCON-25's packaging states that “PODOCON-25© IS TO BE APPLIED ONLY BY A PHYSICIAN” and warns of multiple potential “ADVERSE REACTIONS.” Davida did not apply the Podocon-25, nor did the nurses, who instructed Peterson to apply the treatment himself. He did so and suffered personal injuries. In 2016, Peterson filed a pro se complaint against Davida, the nurses, and Illinois Department of Corrections officials under 42 U.S.C. 1983. He alleged that the officer-defendants destroyed his shower pass permits, issued as part of his treatment, or failed to intervene to correct the situation. The court granted Peterson leave to proceed in forma pauperis and dismissed his claims except as to three correctional officers. After obtaining counsel, Peterson filed an amended complaint, adding Wexford. The parties stipulated to dismissal without prejudice on January 25, 2018. On January 21, 2019, Peterson filed the operative complaint, claiming deliberate indifference under section 1983 and negligence under Illinois law against Davida, the nurses, and Wexford. The district court dismissed, finding that the complaint failed to sufficiently allege that the defendants had the requisite state of mind for deliberate indifference and that Peterson’s negligence claims were untimely because his 2016 complaint did not contain those allegations; the relation-back doctrine governs only amendments to a complaint, not a new filing. The Seventh Circuit affirmed the dismissal of the section 1983 claims but reversed as to the negligence claims. The court did not consider 735 ILCS 5/13-217, under which plaintiffs have an “absolute right to refile their complaint within one year” of its voluntary dismissal.

Emory University, Inc. v. Neurocare, Inc.

Court: US Court of Appeals for the Eleventh Circuit

Docket: 19-14160

Opinion Date: January 25, 2021

Judge: Anderson

Areas of Law: Contracts, Personal Injury

The Eleventh Circuit vacated the district court's grant of summary judgment in favor of Neurocare and remanded in an action where Emory University seeks indemnification from Neurocare, whose technologists were found to be 60 percent at fault for the death of the deceased. The court explained that the term "affiliate" in Section 9.1 of the Sleep Diagnostic Services Agreement embodies the term's well-established common meaning, and that common meaning includes a superior, grandparent corporation. In light of Emory University's direct control and entire ownership of Wesley Woods's parent, which directly controls and owns Wesley Woods, the court concluded that Emory University is Wesley Woods's affiliate. The court applied Georgia case law and also concluded that the indemnification bar doctrine does not operate in the unique facts of this case. The court explained that the bar is a narrow exception to an otherwise proven claim for indemnification based in a string of Georgia cases, starting with GAF Corp. v. Tolar Constr. Co., 246 Ga. 411, 411, 271 S.E.2d 811, 812 (1980). The court read these cases as only applying to the scenario in which the underlying defense is a complete defense in that it would have defeated the underlying action—that is, the entire action and any liability arising therefrom for which the indemnitor would then be liable. Therefore, being a limited exception to indemnification, the court concluded that the bar does not extend to this case—a scenario in which, had the defense in question been asserted in the underlying action to protect Emory University, Neurocare's indemnification obligation would remain, and Neurocare would remain obligated to indemnify Wesley Woods.

Smith v. Crisp Regional Hospital, Inc.

Court: US Court of Appeals for the Eleventh Circuit

Docket: 19-12225

Opinion Date: January 22, 2021

Judge: Per Curiam

Areas of Law: Health Law, Personal Injury

The Eleventh Circuit affirmed the district court's dismissal of the complaint brought by plaintiff, alleging that the Hospital's delay in transferring his son constitutes a violation of the Emergency Medical Treatment and Active Labor Act. The court concluded that there is no provision of the Act suggesting that Congress intended to impose time restrictions with respect to a hospital’s decision to transfer a patient to another hospital. The court explained that the only time restriction in the statute relates not to the transfer decision, but rather to the screening and stabilization requirements. Therefore, plaintiff's claim that the Hospital unreasonably delayed the transfer of his son does not state a claim of violation of the Act. The court noted that plaintiff's claim is the kind of claim contemplated by state medical malpractice laws. Finally, the court rejected plaintiff's contention that the Hospital's delay in transferring the child violated the Act's requirement of an "appropriate transfer."

Ex parte Harbor Freight Tools USA, Inc.

Court: Supreme Court of Alabama

Docket: 1190969

Opinion Date: January 22, 2021

Judge: Mendheim

Areas of Law: Civil Procedure, Personal Injury

Harbor Freight Tools USA, Inc. ("Harbor Freight"), petitioned the Alabama Supreme Court for a writ of mandamus to direct the Lowndes Circuit Court to vacate its order granting a motion to compel discovery in an action Thomas and Juanita Webster ("the Websters") brought against Harbor Freight and others and to enter a protective order involving the requested discovery. The Websters previously hired Randall "Bubba" Wills and Jason Little to construct and install an elevator system in their house. In November 2016, Wills repaired the elevator system. To complete the repairs, Wills purchased from Harbor Freight a "Haul Master" 4,000-pound lifting block. According to Harbor Freight, its instruction manual for the lifting block expressly stated that the lifting block should not be used to transport people in an elevator system. Despite a posted warning, Wills tested the elevator system and rode in the elevator basket with Thomas Webster after Wills had installed the lifting block and completed the repairs. In December 2016, the Websters, along with their son Robbie, were riding in the elevator basket when it fell. To the extent that Harbor Freight sought mandamus relief on the grounds that the trial court's July 16, 2020, order granting the Websters' motion to compel failed to limit discovery, the Supreme Court determined the petition for mandamus relief was premature because Harbor Freight failed to seek a protective order raising the need for those limitations on discovery after the trial court entered the order granting the Websters' motion to compel. To the extent that Harbor Freight sought mandamus relief based on the trial court's implicit denial of its motion to adopt its proposed protective order, the Court determined Harbor Freight failed to demonstrate that any information that might be disclosed by providing the requested documents warrants the protections outlined in the proposed protective order. Accordingly, Harbor Freight's petition was denied.

Ex parte McCoy, Scott, and Henderson.

Court: Supreme Court of Alabama

Docket: 1190403

Opinion Date: January 22, 2021

Judge: Mitchell

Areas of Law: Civil Procedure, Personal Injury

James Olvey was killed when his vehicle was struck head on by a vehicle driven by Donald Wright II, who was driving the wrong way on Interstate 65 ("I-65") while attempting to flee the police. James Griffin, the personal representative of Olvey's estate, sued Wright, the City of Trafford ("Trafford"), the City of Warrior ("Warrior"), and other named and fictitiously named parties, alleging that they shared responsibility for Olvey's death. Over a year later, Griffin amended his complaint to substitute Trafford police officer Dylan McCoy and Warrior police officers Stephen Scott and James Henderson ("the defendant officers") for fictitiously named defendants. The defendant officers moved to enter a judgment in their favor, arguing that the amended complaint was untimely and thus barred by the applicable statute of limitations. The trial court denied their motion, and the defendant officers petitioned the Alabama Supreme Court for mandamus relief. After review of the trial court record, the Supreme Court determined Griffin had ample opportunity to discover the identities of the defendant officers before filing suit - and did not follow through. Therefore, he was not able to avoid the bar of the statute of limitations, and the defendant officers were entitled to the writ of mandamus.

Ex parte Michael Brown.

Court: Supreme Court of Alabama

Docket: 1190962

Opinion Date: January 22, 2021

Judge: Sellers

Areas of Law: Civil Procedure, Personal Injury

Michael Brown petitioned the Alabama Supreme Court for a writ of mandamus to direct the Lee Circuit Court to dismiss, pursuant to Rule 12(b)(6), Ala. R. Civ. P., the complaint filed against him by Christopher Beamon. Brown claimed the complaint should have been dismissed on the basis that the claims asserted in the complaint were barred by the applicable statute of limitations and that the doctrine of equitable tolling was inapplicable to suspend the running of the limitations period. IN 2017, pedestrian Beamon was injured when he was struck by a vehicle driven by Brown; the accident occurred in Auburn. In 2019, Beamon filed a complaint in the United States District Court for the Middle District of Alabama, naming as defendants Brown and Geico Casualty Company. In that complaint, Beamon asserted state-law claims and purported to invoke the federal court's diversity jurisdiction. Despite alleging diversity jurisdiction, the complaint stated that both Beamon and Brown were citizens of Alabama. Brown answered the complaint, asserting as a defense lack of subject-matter jurisdiction. In his motion to dismiss, Brown asserted the federal court lacked subject-matter jurisdiction over the complaint because complete diversity of citizenship was lacking between him an Beamon. Beamon moved to amend his complaint, asserting Brown was a citizen of Georgia, or alternatively, if the evidence was insufficient to support diversity jurisdiction, the court allow equitable tolling of the statute of limitations, which would allow him to refile his claims in a state court. On November 22, 2019, while the federal case was pending, but after the two-year limitations period had run, Beamon filed a second complaint, this time in the Lee Circuit Court, asserting the same claims against Brown as he had asserted in the federal court. The federal court dismissed the complaint without prejudice. The Alabama Supreme Court determined Brown did not establish a clear legal right to dismissal of the complaint filed at circuit court. "This case does not come within the exception to the general rule that a petition for the writ of mandamus is not the appropriate means by which to seek review of the merits of an order denying a motion to dismiss."

Nix v. Myers

Court: Supreme Court of Alabama

Docket: 1170224

Opinion Date: January 22, 2021

Judge: Stewart

Areas of Law: Civil Procedure, Personal Injury

Anthony Nix, a police officer for the City of Haleyville ("the City"), and the City appealed a judgment entered on a jury verdict in favor of John Myers. Myers filed suit asserting claims of negligence, wantonness, and negligence per se against Officer Nix and, based on the doctrine of respondeat superior, the City. Myers also asserted that the City had negligently and/or wantonly hired, trained, and supervised Officer Nix. The Alabama Supreme Court determined the trial court reversibly erred by providing the trial court to provide to the jury a copy of the statutes upon which the jury had been charged. Accordingly, Officer Nix and the City were entitled to a reversal of the judgment and a new trial.

Atlas Construction Supply v. Swinerton Builders

Court: California Courts of Appeal

Docket: D076426(Fourth Appellate District)

Opinion Date: January 26, 2021

Judge: Judith McConnell

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

A construction worker was killed when concrete formwork toppled over at a worksite. Plaintiffs, the worker's surviving family members, brought a wrongful death action against the general contractor, Swinerton Builders, and formwork supplier, Atlas Construction Supply, Inc. Atlas cross-complained against Swinerton for equitable indemnity, contribution and declaratory relief. The trial court entered summary judgment in favor of Swinerton as to the wrongful death complaint. Swinerton, in lieu of seeking entry of judgment on the summary judgment order, settled with plaintiffs, wherein plaintiffs agreed to dismiss their case against Swinerton, and Swinerton waived its costs. Apparently under a shared belief that the good faith settlement determination barred Atlas' cross-complaint against Swinerton, Atlas and Swinerton stipulated to the dismissal of Atlas' cross-complaint against Swinerton. Atlas appealed the summary judgment order, the good faith settlement determination, and dismissal of its cross-complaint. Atlas argued that the trial court erred in ruling Atlas lacked standing to oppose Swinerton's motion for summary judgment. Furthermore, Atlas argued if the trial court had considered its opposition brief, the court could have reasonably denied Swinerton's motion, and Swinerton would have never settled the wrongful death complaint, never made the good faith settlement determination, and Swinerton and Atlas would never have stipulated to the dismissal of Atlas' cross-complaint. After review, the Court of Appeal determined Atlas was not aggrieved by the trial court's exoneration of Swinerton in the wrongful death action. Therefore, Atlas lacked standing to appeal the summary judgment order. With respect to the good faith settlement and dismissal of the cross-complaint, the Court determined Atlas waived its challenge by failing to make substantive legal arguments specific to those orders. Therefore, the appeal was dismissed as to the summary judgment motion, and judgment was affirmed as to all other orders.

Flores v. Liu

Court: California Courts of Appeal

Docket: B301731(Second Appellate District)

Opinion Date: January 28, 2021

Judge: Brian M. Hoffstadt

Areas of Law: Medical Malpractice, Personal Injury

After a surgeon competently performed a gastric re-sleeving surgery on plaintiff, she filed suit against him for negligence in recommending gastric re-sleeve surgery as a viable course of treatment and in not obtaining her informed consent to the surgery. The Court of Appeal held that a physician may be liable for negligently recommending a course of treatment if (1) that course stems from a misdiagnosis of the patient's underlying medical condition, or (2) all reasonable physicians in the relevant medical community would agree that the probable risks of that treatment outweigh its probable benefits. The court also held that a patient's informed consent to a negligently recommended course of treatment does not negate the physician's liability for his negligence in recommending it. In this case, although the trial court erred by instructing the jury that plaintiff's informed consent negated any liability for the surgeon's recommendation, the court concluded that this error did not prejudice her case because her negligent recommendation theory should never have gone to the jury in the first place. In this case, the evidence, viewed in the light most favorable to plaintiff, does not support the conclusion that the surgeon was negligent in recommending that plaintiff undergo the gastric re-sleeve surgery where she suffered from morbid obesity. Accordingly, the court affirmed the judgment.

Steed v. Rezin Orthopedics and Sports Medicine, S.C.

Court: Supreme Court of Illinois

Citation: 2021 IL 125150

Opinion Date: January 22, 2021

Judge: David Overstreet

Areas of Law: Medical Malpractice, Personal Injury

On January 29, 2009, Glenn suffered a partial tear of his Achilles tendon. On February 17, Glenn sought treatment from Dr. Treacy at Rezin Orthopedics. Glenn was 42 years old and borderline obese. Dr. Treacy’s treatment plan included placing Glenn’s lower right leg in a plantar flexion position, set in a plaster cast for six weeks. Dr. Treacy memorialized his recommendation for Glenn to return for a follow-up appointment in two weeks in an invoice. Glenn required an appointment within a day or two for cast placement because he had driven himself to the appointment. Dr. Treacy directed the receptionist (Decker) to schedule a two-week follow-up appointment. Decker scheduled Glenn’s casting appointment for February 19 at another office. After Glenn’s leg was casted, the receptionist, Hare, scheduled Glenn’s follow-up appointment for March 13, more than three weeks after his initial appointment. On February 25, Glenn telephoned Rezin. The receptionist, Popplewell, rescheduled Glenn’s follow-up visit for March 12. On March 8, Glenn died of a pulmonary embolism. In a wrongful death and survival action, a jury returned a defense verdict. Glenn’s administrator appealed only the verdict in favor of Rezin. The appellate court reversed with directions to enter judgment n.o.v. in favor of the estate. The Illinois Supreme Court reinstated the verdict. The evidence supported a conclusion that Rezin’s failures did not proximately cause Glenn’s death. Glenn’s death was not a reasonably foreseeable result of Rezin's failure to schedule his follow-up appointment within two weeks of his initial appointment.

Ford Motor Co. v. Duckworth

Court: Kentucky Supreme Court

Docket: 2019-SC-0357-WC

Opinion Date: January 21, 2021

Judge: Hughes

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

The Supreme Court affirmed the court of appeals' decision upholding an administrative law judge's (ALJ) award of benefits to Deborah Duckworth, holding that the ALJ had the authority to determine the manifestation date for cumulative trauma injury and properly applied controlling law to the facts of this case. On appeal, Ford Motor Company argued that the ALJ exceeded the scope of his authority in determining the manifestation dates of Duckworth's cumulative trauma injuries. The Supreme Court affirmed, holding (1) the ALJ had the authority to determine the manifestation date of Duckworth's cumulative trauma injury; and (2) Ford Motor Company was not deprived of due process because it had adequate notice and opportunity to be heard on the statute of limitations issue.

Mercer v. North Central Service, Inc.

Court: Nebraska Supreme Court

Citation: 308 Neb. 224

Opinion Date: January 22, 2021

Judge: Michael G. Heavican

Areas of Law: Personal Injury, Real Estate & Property Law

In this case stemming from a fire that destroyed part of the Old Market area in Omaha the Supreme Court affirmed the judgment of the district court finding that the Metropolitan Utilities District (MUD) was not immune from suit and denying MUD's motion for summary judgment, holding that there was no merit to MUD's assignments of error. Multiple lawsuits were initiated as a result of the damage caused by the fire. After various settlements, MUD was the only remaining defendant involved in these consolidated appeals. Plaintiffs alleged that MUD failed properly to mark a gas line, failed to timely shut off the gas at the scene of the fire, and failed properly to abandon an old gas line. MUD filed a motion to dismiss in each case, arguing that it was immune from suit on the basis of the discretionary function exception to the Political Subdivisions Tort Claims Act (PSTCA). The district court denied the motion. The Supreme Court affirmed, holding that MUD was not immune from suit under the discretionary function exception to the PSTCA.

Mancini v. City Of Tacoma

Court: Washington Supreme Court

Docket: 97583-3

Opinion Date: January 28, 2021

Judge: Sheryl Gordon McCloud

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

Executing a search warrant, in 2011, eight Tacoma police officers broke open an apartment door with a battering ram. They expected for find Matthew Longstrom, a drug dealer. Instead, they awakened Petitioner Kathleen Mancini, a nurse who had been sleeping after working the night shift. Police nevertheless handcuffed Mancini and took her, without shoes and wearing only a nightgown, outside while they searched. Mancini sued these police for negligence in the performance of their duties. A jury found the police breached a duty of reasonable care they owed to Mancini when executing the search warrant. The Washington Supreme Court found substantial evidence supported the jury’s verdict. The Supreme Court reversed the Court of Appeals that held to the contrary (granting the officers sovereign immunity) and reinstated the jury’s verdict.

Burns v. Sam

Court: Wyoming Supreme Court

Citation: 2021 WY 10

Opinion Date: January 21, 2021

Judge: Gray

Areas of Law: Personal Injury

The Supreme Court affirmed the district court's grant of summary judgment in favor of Defendants in this wrongful death action, holding that Defendants did not owe a common law duty to Tyler Burns, who was killed by a gun stolen from Defendants' home. Tyler Burns was fatally shot by Phillip Sam. Plaintiffs, as personal representatives of Tyler's estate, brought this wrongful death action alleged that Phillip's mother, Dora Sam, and her boyfriend, Roger Davis, (collectively, Defendants) negligently stored the handgun used to kill Tyler. The district court granted summary judgment to Defendants, finding no common law duty. The Supreme Court affirmed, holding that there was no duty upon which a negligence claim may be based.