Latest 9 Cases This Week: Childress v. Costco Wholesale Corp. (9th Cir.), Crawford v. ITW Food Equipment Group, LLC (11th Cir.), Torres v. First ...

He Said/She Said, Save Our Sons, and the Stories that Stick: Part Two of a Two-Part Series of Columns

SHERRY F. COLB

In this second in a series of columns on the U.S. Department of Education’s recent push toward a higher burden of proof in determinations of sexual harassment or assault under Title IX, Cornell Law professor Sherry F. Colb suggests that gendered narratives play a role in people’s willingness to regard an acquaintance rape case as “he said/she said.” Colb describes several examples in which people prefer a story that confirms a pre-existing bias over truth based on evidence.

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Childress v. Costco Wholesale Corp.

Court: US Court of Appeals for the Ninth Circuit

Docket: 19-35441

Opinion Date: October 19, 2020

Areas of Law: Personal Injury

The Ninth Circuit certified the following question to the Montana Supreme Court: Whether, under Montana law, parasitic emotional distress damages are available for an underlying negligence claim for personal property damages or loss.

Crawford v. ITW Food Equipment Group, LLC

Court: US Court of Appeals for the Eleventh Circuit

Docket: 19-10964

Opinion Date: October 21, 2020

Judge: Anderson

Areas of Law: Personal Injury, Products Liability

Plaintiff filed suit against FEG for negligent product design after his arm was amputated when it came into contact with the unguarded blade of one of FEG's commercial meat saws, the Hobart Model 6614. Plaintiff was working as the meat-market manager at a supermarket at the time he sustained his injuries. A jury awarded plaintiff and his wife $4,050,000. The Eleventh Circuit affirmed the district court's evidentiary determinations, holding that the district court did not abuse its broad discretion in rejecting FEG's Daubert challenge to the testimony of plaintiff's expert regarding inadequate testing. The court also held that the district court did not abuse its discretion in finding that allowing the jury to consider the expert's supplemental affidavit was harmless. The court further held that there was sufficient evidence introduced at trial to satisfy Florida's risk utility test and the evidence was sufficient to uphold a verdict of negligent design. Furthermore, the evidence introduced at trial was sufficient to support a finding that FEG's saw failed the consumer expectations test. Although it may have been error for the district court not to issue FEG's requested Florida state-of-the-art instruction, the court held that it was not reversible error. Finally, the district court did not abuse its broad discretion by admitting summaries of OSHA reports of fatalities and catastrophes.

Torres v. First Transit, Inc.

Court: US Court of Appeals for the Eleventh Circuit

Docket: 18-15186

Opinion Date: October 20, 2020

Judge: Tjoflat

Areas of Law: Personal Injury

After a bus owned by First Transit struck a vehicle occupied by plaintiffs, they filed a claim for damages against First Transit, alleging that the driver of First Transit's vehicle was negligent and that First Transit was responsible for the their injuries. First Transit admitted liability and the jury awarded damages to both plaintiffs. The Eleventh Circuit vacated the district court's order denying First Transit's motion for a new trial, holding that when a party moving for a new trial based on a juror's nondisclosure during voir dire makes a prima facie showing that the juror may not have been impartial and thus was plausibly challengeable for cause, the district court must hold an evidentiary hearing prior to ruling on the motion for a new trial in order to adequately investigate the alleged juror misconduct. In this case, First Transit presented the district court with "clear, strong, substantial, and incontrovertible evidence that a specific, nonspeculative impropriety" occurred—namely, court documents that, on their face, showed that two jurors gave dishonest and misleading responses on their juror questionnaires and on voir dire. The court concluded that the district court's failure to conduct an evidentiary hearing constituted an abuse of discretion and remanded for an evidentiary hearing on the question of juror impartiality.

Johns, et al. v. Suzuki Motor of America, Inc., et al.

Court: Supreme Court of Georgia

Docket: S19G1478

Opinion Date: October 19, 2020

Judge: David E. Nahmias

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

Adrien Johns was seriously injured in August 2013 when the front brake on his Suzuki motorcycle failed suddenly. He sued the designer and manufacturer of the motorcycle, Suzuki Motor Corporation, and its wholly-owned subsidiary and American distributor, Suzuki Motor of America, Inc. (collectively, “Suzuki”), asserting a claim of strict products liability based on a design defect and two negligence claims (breach of a continuing duty to warn and negligent recall). Adrien’s wife, Gwen Johns, also sued Suzuki, alleging loss of consortium. At trial, the Johnses presented evidence showing that the brake failure of Adrien’s motorcycle was caused by a defect in the design of the front master brake cylinder that created a corrosive condition, which resulted in a “leak path” that misdirected the flow of brake fluid and caused the total brake failure. About two months after Adrien’s accident, Suzuki issued a recall notice warning about a safety defect in the front brake master cylinder. Suzuki had notice of the issue, including reports of similar accidents, for a significant amount of time before Adrien’s accident. Adrien admitted, that contrary to the instructions in the owner’s manual to replace the brake fluid every two years, he had not changed the fluid during the eight years he had owned the motorcycle. The jury found in favor of the Johnses on all claims. Because the damages after apportionment were less than the Johnses’ pretrial demand of $10 million, the trial court rejected the Johnses’ request for pre-judgment interest under OCGA 51-12-14 (a). The Johnses cross-appealed, arguing that because their claim was based on strict products liability, the trial court erred in reducing the damages awards based on OCGA 51-12-33 (a), and therefore also erred in failing to award them pre-judgment interest. The Georgia Supreme Court granted certiorari review to decide whether OCGA 51-12-33 (a) applied to a strict products liability claim under OCGA 51-1-11. The Court of Appeals held that strict products liability claims were subject to such apportionment. To this, the Supreme Court agreed and affirmed.

Dlouhy v. Kootenai Hospital District

Court: Idaho Supreme Court - Civil

Docket: 47165

Opinion Date: October 19, 2020

Judge: Roger S. Burdick

Areas of Law: Civil Procedure, Medical Malpractice, Personal Injury

Debra Dlouhy, Dustin Dlouhy, individually and as Personal Representative of the Estate of Duane Dlouhy (“the Dlouhys”) appealed a district court order granting summary judgment in favor of Kootenai Health. The district court granted summary judgment on the Dlouhys’ medical malpractice action after determining that the Dlouhys had failed to provide adequate foundation showing that their expert witnesses had actual knowledge of the community standard of care. In May 2015, Duane Dlouhy went to the emergency department because of rectal bleeding. After a CT scan, "no obvious mass" was noted on his records, but that "dark red blood" was present. The radiologist charted that a “neoplasm cannot be excluded.” Mr. Dlouhy was discharged from the hospital and went home, but returned several hours later after the rectal bleeding began again. A colonoscopy was performed, but no complete view of the rectum could be obtained. Mr. Dlouhy was discharged again. He would have follow-up appointments in June and September, 2015, and in January 2016. By August, he had been diagnosed with state IV colorectal cancer. After review of the trial court record, the Idaho Supreme Court determined the district court erred in granting Kootenai Health’s motion for summary judgment on the grounds that the Dlouhys failed to provide sufficient expert testimony as to the community standard of care. The Dlouhys argued that “for board-certified physicians, there is a national standard of care.” They argued that Mr. Dlouhy's original emergency physician was subject to the national standard of care that applied to board-certified gastroenterologists, and that their out-of-area expert had actual knowledge of the applicable national standard because he held the same board certification as the local physician. The Supreme Court concluded the expert familiarized himself sufficiently in the community standard of care for board-certified gastroenterologists such that his testimony should not have been excluded. The district court’s order granting summary judgment was reversed in part, the final judgment dismissing the Dlouhys’ medical malpractice claim was vacated, and the case remanded for further proceedings.

Tabirta v. Cummings

Court: Supreme Court of Illinois

Citation: 2020 IL 124798

Opinion Date: October 22, 2020

Judge: Anne M. Burke

Areas of Law: Civil Rights, Personal Injury

Tabirta was driving a truck in Ohio, when another truck, driven by Cummings, collided with his vehicle. Plaintiff suffered severe injuries, including the amputation of both legs. Cummings’s vehicle was owned by his employer, GML. Tabirta filed a negligence action in Cook County. The defendants moved to transfer venue. Under 735 ILCS 5/2-101, venue is proper either in the county of residence of any defendant or in the county where the transaction occurred. Tabirta cited the Cook County home office of GML employee Bolton (a part-time account representative) and argued that GML was “doing business” in the county. Cummings is not a resident of Cook County. GML is a Missouri corporation with its principal place of business and registered agent located in Randolph County. The Illinois Supreme Court held that Cook County is not the proper venue for the suit. Bolton's work for GML from his home office, standing alone, does not establish that the home was an “other office.” GML did not “purposely select” a location in Cook County to carry on its business but selected Bolton, a person with extensive experience in the food industry. Even if Bolton’s proximity to customers played a role in his hiring, GML did not own, lease, or pay any expenses associated with Bolton’s residence. GML did not hold out to customers or the public that Bolton’s residence was a GML office. GML had no office or other facility in Cook County. Bolton did not sell products from his home office. The work he conducted from his residence was merely incidental to GML’s usual and customary business of food product manufacturing.

Hewitt v. Palmer Veterinary Clinic, PC

Court: New York Court of Appeals

Citation: 2020 NY Slip Op 05975

Opinion Date: October 22, 2020

Judge: Stein

Areas of Law: Personal Injury

In this negligence action stemming from injuries Plaintiff allegedly received by a dog in the waiting room of a veterinary clinic, the Court of Appeals modified the order of the Appellate Division affirming Supreme Court's summary judgment in favor of Defendant, the veterinary clinic, holding that neither party was entitled to summary judgment. In granting summary judgment for Defendant, Supreme Court concluded that Defendant's liability was contingent upon it having had notice of vicious propensities in the same manner as that of a dog owner. The Appellate Division affirmed, concluding that Defendant could not be held liable without notice of an animal's vicious propensities. The Court of Appeals modified the order below by denying Defendant's motion for summary judgment, holding (1) Defendant did not need the protection afforded by the vicious propensities notice requirement, and the absence of such notice did not warrant dismissal of Plaintiff's claim; (2) under the circumstances, a negligence claim may lie despite Defendant's lack of notice of the dog's vicious propensities; and (3) questions of fact existed precluding summary judgment.

Hammons v. Ethicon, Inc., et al

Court: Supreme Court of Pennsylvania

Docket: 7 EAP 2019

Opinion Date: October 21, 2020

Judge: Max Baer

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

Appellee-Plaintiff Patricia Hammons (“Hammons”) was an Indiana resident who suffered significant injuries following the May 2009 implantation in Indiana of Appellant-Defendant Ethicon, Inc.’s Prolift Kit, a medical device used to treat “medical conditions in the female pelvis, primarily pelvic organ prolapse and/or stress urinary incontinence.” She received treatment in Indiana and Kentucky. All parties agreed the mesh was the only aspect of the Prolift Kit produced in Pennsylvania. Ethicon contracted with Secant Medical, Inc., a Bucks County manufacturer, to weave the mesh according to Ethicon’s specifications from Ethicon’s proprietary polypropylene filament. Hammons filed a complaint in the Philadelphia Court of Common Pleas against Ethicon, Johnson & Johnson, Gynecare, and Secant, asserting various claims related to the implanted device. Ethicon was a wholly-owned subsidiary of co-defendant Johnson & Johnson, both of which were headquartered and incorporated in New Jersey (jointly “Ethicon”). After initially being removed to federal court based on Ethicon’s claim of diversity jurisdiction, the case was eventually remanded to the Pennsylvania court, where it was transferred to the Complex Litigation Center Pelvic Mesh Mass Tort Program. Relevant to Hammons’ claim, Plaintiffs alleged that Ethicon “designed, manufactured, packaged, labeled, marketed, sold, and distributed” the Prolift Kit. Plaintiffs named Secant as a defendant, claiming that it “designed, tested, inspected, wove, knitted, cut, treated, packaged, manufactured, marketed, and/or sold a mesh made from polypropylene and/or other synthetically derived filaments that was the actual mesh utilized” in Ethicon’s Prolift Kits. This case presented a challenge to the exercise of specific personal jurisdiction in Pennsylvania over New Jersey corporate defendants, to a case filed by an Indiana resident. After reviewing recent decisions from the United States Supreme Court revising its personal jurisdiction jurisprudence, the Pennsylvania Supreme Court concluded that the imposition of personal jurisdiction in this case met the relevant constitutional and statutory requirements, and affirmed the Superior Court.

Bextel v. Fork Road LLC

Court: Wyoming Supreme Court

Citation: 2020 WY 134

Opinion Date: October 19, 2020

Judge: Boomgaarden

Areas of Law: Personal Injury

The Supreme Court affirmed the judgment of the district court dismissing Plaintiffs' complaint under Wyo. R. Civ. P. 12(b)(6) and (c), holding that the district court did not err. Plaintiffs sued Defendants asserting claims for defamation per se, tortious interference with a prospective economic advantage and business expectancy, and false light invasion of privacy. The district court dismissed all claims. The Supreme Court affirmed, holding (1) Plaintiffs did not state claims for defamation per se; (2) Plaintiffs could not recast their second cause of action as a claim for prima facie tort; and (3) Plaintiffs did not state a claim for false light invasion of privacy.