Latest 9 Cases This Week: Irish v. Fowler (1st Cir.), Adams v. American Optical Corp. (4th Cir.), Raicevic v. Fieldwood Energy, LLC (5th Cir.)

Update on Trump’s Coup: Do Not Think That This Is Guaranteed to End Well

NEIL H. BUCHANAN

UF Levin College of Law professor Neil H. Buchanan explains why “being patient with Trump” is a recipe for disaster, why there are still reasons to be guardedly optimistic, and why this all could still end very badly. Buchanan argues that the present situation is not guaranteed end badly, but he cautions that a Trump coup is eminently possible.

Read More

Irish v. Fowler

Court: US Court of Appeals for the First Circuit

Docket: 20-1208

Opinion Date: November 5, 2020

Judge: Sandra Lea Lynch

Areas of Law: Personal Injury

In this case, the First Circuit held that a viable substantive due process state-created danger claim was presented against two Maine State Police officers and that the district court erred in granting the officers' summary judgment motion on qualified immunity grounds. This 42 U.S.C. 1983 action arose out of the attacks, murder, and rapes committed in 2015 by Anthony Lord against Brittany Irish and those close to her (Plaintiffs) after actions and inactions by the defendant officers. Plaintiffs sought relief based on the state-created substantive due process danger doctrine, under which officers may be held liable for failing to protect plaintiffs from danger created or enhanced by their affirmative acts. The district court granted summary judgment to the officers on the grounds of qualified immunity. The First Circuit (1) affirmed the district court's ruling that a jury could find that the officers violated Plaintiffs' substantive due process rights; and (2) reversed the grant of Defendants' summary judgment motion on qualified immunity grounds, holding that a reasonable jury could conclude that the facts of this case could give rise to a constitutional violation under the state-created danger doctrine.

Adams v. American Optical Corp.

Court: US Court of Appeals for the Fourth Circuit

Docket: 19-1609

Opinion Date: November 6, 2020

Judge: Floyd

Areas of Law: Personal Injury

The Fourth Circuit affirmed the district court's order granting summary judgment for defendants, holding that plaintiff filed his personal injury suit outside the applicable two-year statute of limitations. Plaintiff, a coal miner, alleged that the respirators given to him by defendants to protect himself from inhaling excessive amounts of harmful coal dust failed to protect him from the lung disease that he developed. Applying Virginia law, the court held that there is no genuine dispute of material fact that plaintiff's coal workers' pneumoconiosis (CWP) first manifested itself before September 29, 2014. Furthermore, the fact that earlier doctors could not have known his eventual diagnosis when exploring other causes of plaintiff's poor lung function does not create a genuine dispute as to the consistent medical opinion delivered by the experts in this case: plaintiff had CWP prior to September 29, 2014. Therefore, the court is bound to affirm the district court's correct conclusion that the limitations period did not begin to run on October 2, 2014, the date plaintiff first discovered he had CWP. The court noted that it would be remiss in remaining silent about the manifest unfairness that the court's conclusion poses to plaintiffs, like the one here, who suffer from latent diseases that cause ambiguous symptoms for the first two years or successive harms that fall outside the limitations window. The court therefore joined other state and federal courts in recognizing that Virginia law essentially bars certain plaintiffs from recovery.

Raicevic v. Fieldwood Energy, LLC

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-40580

Opinion Date: November 10, 2020

Judge: Per Curiam

Areas of Law: Labor & Employment Law, Personal Injury

Plaintiff filed suit against Fieldwood and others after he was injured while working on Fieldwood's offshore platform. The jury found that Fieldwood was the only defendant that was negligent, attributing 50 percent of the responsibility to the company and the other 50 percent to plaintiff. The Fifth Circuit affirmed the district court's entry of judgment for defendants, agreeing with the district court that plaintiff was Fieldwood's borrowed employee and thus the Longshore and Harbor Workers' Compensation Act's (LHWCA) exclusive-remedy provision gave Fieldwood tort immunity. In this case, the evidence showed that both Fieldwood and Waukesha Pearce had LHWCA insurance at the time of plaintiff's injury and that is enough for Fieldwood to invoke the LHWCA's exclusive-recovery provision. Finally, the court held that the district court's consideration of Fieldwood's post-trial evidence was proper.

Vue v. Walmart Associates, Inc.

Court: Alaska Supreme Court

Docket: S-17469

Opinion Date: November 6, 2020

Judge: Craig F. Stowers

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

Ge Vue was an asset-protection worker at the Walmart in Eagle River, Alaska in 2016. On February 3, he was shot in the back and face with a pellet gun when he and another asset-protection worker tried to stop three juveniles from taking a cart full of merchandise they had not paid for. No pellets penetrated his back, but one pellet penetrated the skin near his right eye and came to rest in his right orbit, or eye socket, near his optic nerve. He underwent surgery for the injury, and received treatment for post-traumatic stress disorder. His employer contended that he was not disabled by the psychological injury and, after an ophthalmologist retained by the employer questioned specific pain-related medical care, the employer controverted that treatment. The Alaska Workers’ Compensation Board granted the worker’s claim for medical care, found the employer had not unfairly or frivolously controverted benefits, and denied the worker’s request for disability during periods of time when his eye doctors said he had the physical capacity to perform asset-protection work. The Alaska Workers’ Compensation Appeals Commission affirmed the Board’s decision. Vue appealed,, making arguments related to disability and the standard for finding an unfair or frivolous controversion. The Alaska Supreme Court reversed the Commission’s decision, and remanded with instructions to remand to the Board for calculation of benefits and penalty owed to the worker.

Upper Pond Creek Volunteer Fire Department, Inc. v. Kinser

Court: Kentucky Supreme Court

Docket: 2019-SC-0563-DG

Opinion Date: November 12, 2020

Judge: Michelle M. Keller

Areas of Law: Personal Injury

The Supreme Court affirmed the decision of the court of appeals dismissing Upper Pond Creek Volunteer Fire Department, Inc.'s appeal of the trial court's denial of its motion to dismiss a portion of Plaintiffs' claims until material facts could be developed in discovery, holding that the court of appeals properly concluded that it lacked appellate jurisdiction. Ronnie and Amanda Kinser filed this complaint alleging that the fire department was negligent in providing assistance to Ronnie and in hiring, training, supervising, and retaining its employees. Pond Creek filed a motion to dismiss, asserting governmental immunity under Ky. Rev. Stat. 75.070. The circuit court granted the motion. The Kinsers filed a motion to alter, amend, or vacate, arguing that section 75.070 does not expressly apply to their claims for negligent hiring and training. The circuit court granted the Kinsers 120 days to conduct discovery regarding the immunity of the fire department and its employees and then sustained the motion to alter, amend, or vacate as to the negligent hiring and training claims. The court of appeals dismissed Pond Creek's appeal for lack of jurisdiction, concluding that the interlocutory order was not immediately appealable. The Supreme Court affirmed, holding that this was an improper interlocutory appeal.

A.J.R. v. Lute

Court: Supreme Court of Ohio

Citation: 2020-Ohio-5168

Opinion Date: November 10, 2020

Judge: Fischer

Areas of Law: Personal Injury

The Supreme Court reversed the opinion of the court of appeals reversing the trial court's decision granting summary judgment in favor of a teacher and school officials on Plaintiffs' complaint alleging that Defendants were reckless in addressing the alleged bullying of a kindergartener by another student, holding that Defendants did not act in perverse disregard of a known risk. In granting summary judgment for Defendants, the trial court found that they were immune from liability because the family had failed to establish that a genuine issue of material fact existed as to whether Defendants disregarded a known risk or obvious risk of harm to the kindergartener. The court of appeals reversed, finding that a genuine issue of material fact existed with respect to whether Defendants had been reckless. The Supreme Court reversed, holding that Defendants did not act in perverse disregard of a known risk, and therefore, Defendants' conduct was not reckless.

Hermanson v. Multicare Health Sys., Inc.

Court: Washington Supreme Court

Docket: 97783-6

Opinion Date: November 12, 2020

Judge: Susan Owens

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

The issue this case presented for the Washington Supreme Court's review related to the boundaries of the corporate attorney-client privilege and how it operated when in conflict with a plaintiff’s physician-patient privilege. In 2015, Doug Hermanson sideswiped an unoccupied vehicle and crashed into a utility pole. Hermanson was transported to Tacoma General Hospital, which was owned by MultiCare Health System Inc. Hermanson was treated by several MultiCare employees, including two nurses and a crisis intervention social worker. However, the physician who treated Hermanson, Dr. Patterson, was an independent contractor of MultiCare pursuant to a signed agreement between MultiCare and Trauma Trust, his employer. Trauma Trust was created by MultiCare; Dr. Patterson had his own office at Tacoma General Hospital and was expected to abide by MultiCare’s policies and procedures. During Hermanson’s treatment, an unidentified person at Tacoma General Hospital conducted a blood test on Hermanson that showed a high blood alcohol level. As a result, someone reported this information to the police, and the police charged Hermanson with first degree negligent driving and hit and run of an unattended vehicle. Based on this disclosure of his blood alcohol results, Hermanson sued MultiCare and multiple unidentified parties for negligence, defamation/false light, false imprisonment, violation of Hermanson’s physician-patient privilege, and unauthorized disclosure of Hermanson's confidential health information. MultiCare retained counsel to jointly represent MultiCare, Dr. Patterson, and Trauma Trust, reasoning that while Dr. Patterson and Trauma Trust were not identified parties, Hermanson’s initial demand letter implicated both parties. Hermanson objected to this joint representation and argued that MultiCare’s ex parte communications with Dr. Patterson violated Hermanson’s physician-patient privilege. The Supreme Court determined that Dr. Patterson still maintained a principal-agent relationship with MultiCare, and served as the "functional equivalent" of a MultiCare employee; therefore MultiCare could have ex parte communications with the doctor. The nurse and social worker privilege were "essentially identical in purpose" to the physician-patient privilege, making ex parte communications permissible between MultiCare and the nurse and social worker.

State ex rel. Monster Tree Service, Inc. v. Cramer

Court: Supreme Court of Appeals of West Virginia

Dockets: 20-0043, 20-0044

Opinion Date: November 6, 2020

Judge: Armstead

Areas of Law: Civil Procedure, Personal Injury

In these two related proceedings the Supreme Court granted the writs of prohibition sought by Monster Tree Service Inc. (Monster, Inc.) and Monster Franchise, LLC to set aside defaults entered against them in the circuit court, holding that the circuit court erred by failing to grant Monster, Inc.'s and Monster Franchise's motions to set aside their defaults. Respondent was injured when he fell from a tree while working for Monster Tree Service of the Upper Ohio Valley, Inc. (Monster UOV), an Ohio corporation. Respondent sustained his injuries in Marshall County, West Virginia. Respondent sued Monster UOV, Monster Franchise, and Monster, Inc. in Marshall County Circuit Court. The circuit court later entered defaults against all defendants. Monster Franchise and Monster, Inc. moved to set aside their defaults. The circuit court denied both motions. The Supreme Court granted both entities' writs of prohibition, holding (1) Respondent's attempt at service on Monster Franchise was ineffective and that the circuit court lacked jurisdiction to enter a default judgment against Monster Franchise; and (2) the circuit court committed clear error as a matter of law when it refused to vacate Monster, Inc.'s default.

Candelaria v. Karandikar

Court: Wyoming Supreme Court

Citation: 2020 WY 140

Opinion Date: November 6, 2020

Judge: Michael K. Davis

Areas of Law: Medical Malpractice, Personal Injury

The Supreme Court affirmed the judgment of the district court finding that Plaintiff's complaint against Defendant, a surgeon, alleging that he negligently treated Plaintiff's spinal condition, was barred by the statute of limitations, holding that the district court correctly found that Plaintiff's complaint was untimely filed. In her complaint, Plaintiff alleged that Defendant did not meet the applicable standard of care in his performances of surgeries on her and in her after care. Defendant moved for summary judgment, asserting that the complaint was barred by the applicable statute of limitations, Wyo. Stat. Ann. 1-3-107. The district court granted the motion. The Supreme Court affirmed, holding that the district court did not err in finding that the statute of limitations expired four days before Plaintiff's complaint was filed.