Hospital's radiology contractor must answer negligence claim over patient death, per third-party doctrine

Saint Vincent Hospital, Worcester, Mass.
Terageorge~commonswiki via Wikimedia Commons CC BY-SA 4.0

A hospital's radiology contractor may be on the hook for failure to provide emergency medical treatment to a patient who died, the Massachusetts Appeals Court ruled last week.

The decision offers a solid analysis of third-party beneficiary doctrine in tort law. Under the doctrine, a duty in common law tort can arise from a contract that benefits a third party. So if B and C contract for the protection of A, an injured A may sue C for for its failure under the contract, even though C had no contract with A and would not otherwise have owed any common law duty to A.

In the instant case, Saint Vincent Hospital (SVH) in Worcester, Massachusetts, had contracted with Saint Vincent Radiological Associates, Inc., (SVRA) for radiology services for SVH patients. The plaintiff-decedent was an SVH patient suffering from an acute gallbladder infection requiring an emergency procedure. SVH did not have staff to do the procedure and transferred the patient to another hospital. The patient died before the procedure could be completed. 

The plaintiff-representative discovered later that an SRVA physician on call for SVH was able to do the procedure. The representative sued SVH and SVRA. The representative settled with SVH, but the representative's negligence claim against SVRA was dismissed for want of duty.

The trial court erred, the Appeals Court decided. Ordinarily, an SVRA doctor might have owed no duty to an SVH patient, any more than any doctor who was a stranger to the patient. However, SVRA had contracted with SVH for the benefit of third parties, namely, patients, such as the decedent. The plaintiff therefore could pursue a negligence claim against SVRA, the Appeals Court agreed, remanding and reinstating the claim.

There remains a question of fact in the case, which might have confused the issue in the trial court, over whether the SVH-SVRA contract provided for SVRA doctors to do emergency procedures, if needed, more than mere radiology consultations. If the scope of the contract was so limited, then there is no basis in the contract for the duty to perform the procedure that could have saved the patient's life. The parties had settled contract claims in the case below, so the courts never had occasion to opine on the scope of the contract.

Another question that will have to be resolved on remand, if the case is tried, is whether the defendant was negligent, that is, breached the standard of care. Even breach of contractual obligation, if that were the case, is not negligence per se under the third-party beneficiary doctrine.

In working out its conclusion, the Appeals Court noted an important additional feature of the doctrine, which is that a contract can only support a duty familiar to common law, assuming there were a social-contractual link between A and C. If a contract imposes some exotic obligation, then the only remedy for breach arises between the contracting parties, B and C, in contract law. Here, though, this requirement is not an impediment. C is a doctor, and A is a patient. The duty relationship is easily recognizable once the contract bridges the social gap.

The case is Brown v. Saint Vincent Radiological Associates, Inc., No. 23-P-771 (Oct. 24, 2024). Justice Gregory I. Massing wrote the opinion of the unanimous panel, which also comprised Justices Shin and D'Angelo.

Possibility that 'Titan' victims died instantly works curious disadvantage in tort claims over disaster

Still image of Titan wreckage from USCG video (below).

Hearings over the Titan submersible disaster point to the problem of compensation for instant death in tort law.

As The New York Times reported yesterday (subscription), a U.S. Coast Guard (USCG) inquiry into the underwater implosion of the Titan submersible (60 Minutes Austl.) has raised doubts over whether the five persons who died on the voyage knew they were in trouble. The family of one crew member filed a $50 million lawsuit against the sub manufacturer in August (N.Y. Times).

Titan was capable of dropping all of its weights to surface rapidly in an emergency. It was known before the present inquiry that Titan had dropped weights before the implosion, and experts read that as a sign that the crew knew they were in trouble. The inquiry so far has revealed, though, that Titan might have dropped only some weights as part of its routine surfacing procedure, and that communications with the surface suggested no cognizance of the impending disaster.

The rapid compression resulting from compromise of the Titan's hull at a depth of 3,346 meters (10,978 feet) would have raised the temperature in the sub so quickly as to incinerate the interior in a split second. So if the crew did know there was trouble, they did not know for long.

 Remotely-operated-vehicle video of Titan tail cone on seafloor (USCG).

Besides the natural desire of victims' families to understand what their loved ones experienced in their last moments of consciousness, the question of conscious awareness of impending death points to a curious problem of damages doctrine in tort law.

In its long history, Anglo-American common law has struggled with the problem of compensation in event of accidental death. The conventional approach to calculate damages in tort law asks what it would take to restore a plaintiff to status quo ante, as if the accident had not occurred. When a loss is non-economic, such as physical injury or emotional distress, the loss is nonetheless quantified as financial compensation.

The problem in a death case, besides the obvious difficulty of quantifying life itself, is that there is no plaintiff to compensate. The person who experiences loss of life can in no sense be made to feel restored; she or he can derive no satisfaction from a financial award, nor even spend it. So what is the social utility in transferring wealth from a responsible defendant to a non-corporeal estate?

Tort law does mean to accomplish more than mere compensation. Tort awards set norms for socially acceptable conduct, deter others from misconduct, and keep the peace by cooling the vengeful desires of a victim's kin. So the law of accidental death came around in the 19th and 20th centuries to compensate surviving family for at least some of the losses that they suffer upon the death of a loved one; and also to compensate a decedent's estate for what the decedent suffered while alive.

That latter measure incorporates a serious limitation: the decedent's suffering necessarily ended at the time of death. Compensation of an estate thus poses a peculiar problem in a narrow class of cases. Should the estate receive anything at all when a person dies instantly? If so, what is the measure of suffering?

In modern times, airline disasters especially added another twist to the problem. One could imagine that airplane passengers sometimes are conscious of an impending crash. They therefore suffer emotionally. But they suffer before the crash. American law on negligence and strict liability compensates emotional distress only when it is a consequence of physical injury. The doomed airline passengers experienced physical injury and death simultaneously; there was no consequential emotional distress. So there is, again, no basis on which a tort award can be measured out.

Is there really, though, a legally significant difference between, on the one hand, suffering for moments after impact and before death, and, on the other hand, suffering for moments before impact and before death? Personally, I'd like to avoid both. And the toll on kin, the revelation of a loved one's suffering for moments in anticipation of death, seems about the same whether before or after impact.

Accordingly, many courts faced with such cases have been willing to suspend the usual rule of causation and award an estate damages for "pre-impact fear," if only in this narrow class of cases when it could be proved, at least by circumstantial evidence, that the decedent suffered emotional trauma upon an awareness of impending death.

The solution creates collateral problems, namely: in evidence, as to how one proves the pre-impact state of mind of a person who perished; and in torts, in the valuation of damages, for fear that jurors might let the fact of physical fatality improperly amplify their assessment of only momentary and purely emotional suffering. These problems are surmountable, if one decides they should be, through adversarial process, careful jury instructions, and court supervision.

American jurisdictions remain reluctant, though, to compensate for life itself. So damages awarded to wrongful death complainants, the kin of decedents, still are measured according to their losses, such as financial support and loss of companionship. However remunerative, that approach can leave victims' families feeling like the lives of their loved ones were undervalued by the legal system, and the loss of life was insufficiently impressed upon the defendant. After all, if there were no kin, there would be no liability.

An award for pre-impact fear usually is small, because of the short time frame in which the harm occurs. But the award can be important symbolically to victims' families, because, in the absence of compensation for life itself, the modest award for pre-impact fear at least recognizes suffering in the decedent's confrontation with mortality.

In the Titan case, then, a revelation of instant death might bear a bittersweet edge for families. Certainly, they would like to know that their loved ones did not suffer at all and had no cognizance of their fate aboard the sub. At the same time, a revelation of instant death will mean that the victims bore no compensable suffering, even pre-impact. In tandem with a failure to compensate for life itself, victims' families might well conclude that the legal system failed to recognize the fullness of their loss.

There are, by the way, better ways to handle wrongful death. The gold standard for my money was articulated by my friend and former colleague Andrew McClurg in his Dead Sorrow: A Story About Loss and a New Theory of Wrongful Death Damages, 85 B.U. L. Rev. 1 (2005).

Criminal verdict in Mich. school shooting suggests parent vulnerability to civil negligence claims

2018 National School Walkout
Public domain via Rawpixel

The criminal conviction of gun-owning parent Jennifer Crumbley yesterday in the 2021 school shooting in Oxford, Mich., (e.g., USA Today via Courier Journal) got me thinking about parents' exposure to civil liability.

There's no question that parents of a minor-age school shooter can be held liable indirectly for injuries and deaths upon a theory such as negligent storage or entrustment of a firearm. There have been many civil lawsuits arising from school shootings upon analogous negligence theories leveled against school officials, police, gun sellers, and gun manufacturers.

What I do not know is whether there ever has been a civil verdict against a parent. A civil liability theory follows naturally upon a criminal conviction. But criminal prosecution of parents in these cases has been exceedingly rare, Crumbley's being the first such conviction.

Without the beyond-a-reasonable-doubt standard having been proved already in a criminal case, the civil negligence case presents daunting hurdles in duty and proximate causation. It's never easy to hold an earlier-in-time actor liable in negligence for the intentional criminal conduct of a later actor, whom judge and jury are likely to regard as a superseding cause. Such claims are not infrequent, though, and plaintiffs keep bringing them, because intentional criminal actors tend to lack assets that would make a plaintiff whole.

Brendan Pierson for Reuters reported a rundown in 2022 of civil actions in major school shootings: Uvalde, Texas; Columbine, Colo.; Red Lake, Minn.; Blacksburg, Va.; Newtown, Conn.; Parkland, Fla.; and Santa Fe, Texas. Claims that have been resolved so far have ended with settlements or defense verdicts.

Among those cases, Pierson mentioned claims against parents only in the report on the 2018 shooting in Santa Fe, Texas. In 2023, plaintiffs in the Santa Fe case settled with ammunition retailer Luckygunner (AP). The latest report I can find on the case against the parents, from the Daily News of Galveston County, Texas, said in December 2023 that the negligence case against the parents of Dimitrios Pagourtzis remains on the trial court docket.

Please comment here if you know of a civil verdict or settlement against parents in a school shooting case. I would be curious to know also whether homeowner insurers have covered or not covered in such cases.

Recklessness claim in fatal Ford rollover accident allows plaintiff to push past Ga. statute of repose

"Crash Overview Diagram" by defense expert Donald F. Tandy, Jr.
(no. 103 filed Mar. 15, 2022) in Cosper v. Ford Motor Co.
(N.D. Ga. filed Oct. 11, 2018).

The Georgia Supreme Court defined "recklessness" in an erudite November opinion that allowed a plaintiff to surmount the statute of repose with a product liability claim.

In federal court in Georgia, the underlying case involves a fatal Ford Explorer rollover accident on Christmas Day in 2015. The plaintiff sued Ford Motor Co. in product liability over the integrity of the vehicle roof. Arising more than 10 years after the vehicle's manufacture, the claim seems to run afoul of the Georgia statute of repose.

But the statute of repose has an exception for "conduct which manifests a willful, reckless, or wanton disregard for life or property." The plaintiff aimed to surmount the statute of repose by accusing Ford of recklessness. The federal court certified the case to the Georgia Supreme Court to explain what recklessness means in the statute.

Recklessness is a useful but sometimes elusive concept in tort law. Insofar as culpability can be described on a spectrum running from intentional tort to negligence to no fault, recklessness is usually located at the midway point between intent, a subjective state of mind, and negligence, an objectively tested condition. One formulation of recklessness employs the canny "reason to know" analysis, which mixes subjective and objective testing of a defendant's state of mind by allowing reasonable inference (objective) from actually known facts (subjective).

But recklessness is a quirky creature of perspective. Recklessness looks different if you approach the concept from its intent side, when it describes a state of mind short of but indicative of pure subjective intent, or from its negligence side, when recklessness describes a kind of highly exaggerated carelessness.

This Janus-faced character causes recklessness to manifest in different legal tests amid different fact patterns. At a more theoretical level, the dichotomy reveals a deeper truth about culpability, which is that the useful metaphor of a spectrum disguises arguably qualitative differences between intentional wrongs and accidents.

The upshot is that recklessness can mean many things to many people. And the fact that the Georgia Supreme Court had never defined the term in the statute of repose was problematic for the federal court in the Ford Motor Co. case.

The Georgia statute pairs recklessness with the famous doublet, "willful" and "wanton." These terms are even more problematic. While they are well known to historical common law, they have not been uniformly incorporated into modern conceptions of culpability. Their ambiguity thus has been an occasional source of controversy in modern times, for example, in international disagreement over construction of the Warsaw Convention that governed air carrier liability in the 20th century.

The plaintiff in Ford Motor Co. did not allege "willful" misconduct, which smacks of intent and feels incompatible with a product liability claim. That's OK, the Georgia Supreme Court decided, because the disjunctive ("or") in the statute should be taken at face value. So recklessness can suffice by itself.

In a review worth reading for legal linguaphiles, to define recklessness, the court reviewed a range of precedents and sources, including the Restatement of Torts. (The court cited the "Restatement (First) of Torts § 500"; section 500 appears in the Second Restatement.) In the end, the court settled on a definition that hewed to the Restatement:

[when] the actor intentionally does an act or fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable person to realize that the actor's conduct not only creates an unreasonable risk of harm to another's life or property but also involves a high degree of probability that substantial harm will result to the other's life or property.

The approach comprises definitional components that are common in recklessness formulations, even if the words and particulars sometimes vary: volitional action (not necessarily intent as to result), knowledge of predicate facts (from which one might deduce risk), unreasonable risk (not necessarily unreasonable conduct), elevated probability of harm, and elevated magnitude of harm. (Cf. my YouTube Study of Intent (2017).)

Significantly, this approach to recklessness is free of moral appraisal. Thus, modern recklessness often is synonymized with "actual malice" and distinguished from "common law malice." The older latter imports the notion of "evil," or at least "hatred." My torts textbook examines this distinction when it is salient in punitive damages, for which some states employ one standard, some employ the other, and some employ them both in the alternative.

In the Georgia case, if recklessness can be proved, the plaintiff will be able to work around the statute of repose. The proof won't come easily. But usually it is easier for a plaintiff to show that a corporate defendant was reckless than to show that it acted "willfully" or "evilly," descriptors more often associated with persons.

Justice Verda M. Colvin

The case is Ford Motor Co. v. Cosper (Ga. Sept. 19, 2023). Justice Verda M. Colvin wrote the opinion of the court.

In 2021, Justice Colvin became the first African-American woman appointed to Georgia's high court by a Republican governor. An Atlanta native, she studied government and religion at Sweet Briar College, graduating in 1987 (just a couple of years before I arrived at my alma mater in nearby Lexington, Va.), and law at the University of Georgia, graduating in 1990. In May 2023, Justice Colvin gave the commencement address at Sweet Briar. 

Justice Colvin told New Town Macon that "Jesus Christ and Martin Luther King Jr. inspired her since she was a child through their devotion to service." In 2016, Judge Colvin spoke to youth in the "Consider Consequences" program of the Bibb County, Ga., Sheriff's Office; a recording (below) of the powerful allocution went viral.

Lengthier U.S. limitations period allows claim over accidental deaths of medical students in Nevis

The Massachusetts three-year statute of limitations rather than a foreign one-year statute of limitations permitted wrongful death suits in the tragic case of two medical students killed while studying abroad, a trial court ruled in March.

Plaintiffs' decedents were students from New Jersey and California studying at the Medical University of the Americas (MUA) on the island of Nevis, in the Federation of St. Christopher (Kitts) and Nevis, in the West Indies. MUA is a nonprofit based in Devens, Massachusetts.

MUA campus, Nevis
(Bazi014 CC BY-SA 3.0 via Wikimedia Commons)

The women suffered fatal burns in their MUA dormitory when a gas cooking stove connected to an external propane tank exploded. Plaintiffs sued MUA two years later in negligence, alleging failure to inspect and maintain the stove and gas piping.

The defendant sought dismissal under the one-year statute of limitation in Nevis law. The plaintiffs contended that the more generous three-year limitations period in Massachusetts pertained.

The Superior Court in Worcester, Mass., explained the choice-of-law analysis, relying on Commonwealth high court precedent and the Restatement (Second) of Conflict of Laws:

Massachusetts applies a functional approach in determining the statute of limitations when a choice of law question arises.... Generally, Massachusetts "will apply its own statute of limitations permitting the claim unless: (a) maintenance of the claim would serve no substantial interest of the forum; and (b) the claim would be barred under the statute of limitations of a state having a more significant relationship to the parties and the occurrence." .... "Stated in affirmative terms, a forum should apply its own statute of limitations permitting the claim if it would advance a substantial forum interest and would not seriously impinge upon the interests of other states." .... The focus of this choice of law analysis is on the timeliness of the action, rather than the underlying claim.

The court reasoned that oversight of the dorm was a function of the defendant's management in and directives from Massachusetts. And Nevis's interest was less than Massachusetts's when it is a Massachusetts defendant that faces liability.

The defendant also sought dismissal for forum non conveniens, and the court decided that the question is premature.

The case is Balasanyan v. R3 Education Inc., No. 2085CV01052 (Mass. Super. Ct. Mar. 29, 2022), Justice David M. Hodge presiding.

Judge Jackson Media Law, Torts Tour: From Big Meat 'COOL' to 'A Love of Food' and 'Everlasting Life'

[A revised version of this post is available to download as a paper on SSRN.]

The Hon. KBJ (Wikicago CC BY-SA 4.0)

Profiles of U.S. Circuit Judge Ketanji Brown Jackson have proliferated since her announcement as a leading contender for the U.S. Supreme Court seat vacated by Justice Breyer, and President Biden announced her nomination yesterday.

Judge Jackson has practiced in both criminal and civil environments, and in public and private sectors.  She focused in different practice roles on criminal law and appellate litigation, and she served on the federal bench at the trial and appellate levels.  So much of her work, and that which has garnered the most attention, for example in the excellent SCOTUSblog profile by Amy Howe, interests me as a citizen in general more than as an academic and media-law-and-torts aficionado.

Nevertheless, I compiled here cases of interest to me, which I found whilst poking around in her trial-court record on the U.S. District Court for the District of Columbia (D.D.C.).  You might not see these discussed elsewhere, but they might be of interest to comparative-bent, media-law types like me, if that's even a thing.  In my ordinary-joe capacity, I am not in step with Judge Jackson's inclinations in some other areas of law.  But any Supreme Court Justice, just like any political candidate, is going to be a mixed bag, especially in a compulsorily two-party system.

In the cases below, a decidedly unscientific sample, I like some of what I see, especially skeptical diligence in access-to-information cases, sound reasoning in intellectual property law, careful application of preemption doctrine in medical-product liability, and a couple of thought-provoking First Amendment entanglements.  I see a mixed record on venue for transnational cases, something I've been worrying about lately, but the outcomes are defensible as consistent with lousy U.S. law.

---

Main topics:
● Civil procedure/statute of limitations: WMATA v. Ark Union Sta., Inc. (2017)
● Copyright/music royalties: Alliance of Artists & Recording Cos. v. Gen. Motors Co. (2018)
● Defamation, false light/actual malice: Zimmerman v. Al Jazeera Am., LLC (2017)
● First Amendment/child pornography: United States v. Hillie (2018)
● First Amendment/commercial speech, compelled speech: Am. Meat Inst. v. U.S. Dept. Agric. (2013)
● FOIA/national security, law enforcement: Elec. Privacy Info. Ctr. v. U.S. Dept. Justice (2017)
● FOIA/Vaughn index, trade secrets, deliberative process: McKinley v. FDIC (2017)
● FOIA/deliberative process/personal privacy: Conservation Force v. Jewell (2014)
● FSIA/CCFA, forum non conveniens: Azima v. RAK Invest. Auth. (2018)
● FSIA/torture: Azadeh v. Iran (2018)
● Insurance/settlement: Blackstone v. Brink (2014)
● Product liability/causation, preemption, learned intermediary: Kubicki v. Medtronic (2018)
● Trademark/infringement: Yah Kai World Wide Enter. v. Napper (2016)
● Wrongful death/sovereign immunity, contributory negligence: Whiteru v. WMATA (2017)
● Wrongful death, product liability/forum non conveniens: In re Air Crash ... So. Indian Ocean (2018)

Quirky pro se claims:
● Defamation/litigation privilege/statute of limitations: Ray v. Olender (2013)
● Copyright/infringement: Buchanan v. Sony Music Ent. (2020)
● Copyright/pleading: Butler v. Cal. St. Disbursement Unit (2013)
● Copyright/subject-matter jurisdiction: Miller v. Library of Congress (2018)
● FTCA/FOIA, civil rights: Cofield v. United States (2014)
● Legal profession/sovereign immunity, absolute immunity: Smith v. Scalia (2014)

And the case with the best name:
● A Love of Food I v. Maoz Vegetarian USA (2014)

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WMATA (D.C. Metro) (Max Pixel CC0)

Civil procedure/statute of limitations.  WMATA v. Ark Union Sta., Inc., 269 F. Supp. 3d 196 (D.D.C. 2017).  The transit authority of the District of Columbia alleged that negligent maintenance by the Union Station America Restaurant, defendants' enterprise, resulted in a burst sewer pipe that severely damaged the Metro Red Line in 2011.  Judge Jackson opened the opinion cleverly, with what could almost be a dad joke: "This is a case about whose interests the [WMATA] serves when it spends money to repair damaged transit infrastructure in the Metrorail system—a proverbial third rail of this region's politics."  (My emphasis.  How could I not?)

D.C. has a generous five-year statute of limitations, but even that time had run.  Determining that the corporate-body WMATA remained a creature of government for relevant purposes, evidenced by its operational subsidies—cf. WMATA, infra, in negligence/sovereign immunity—Judge Jackson applied "the common law nullum tempus doctrine, which dates back to the thirteenth century," to exempt WMATA, as sovereign, from the statute of limitations.  The court explained: "Although the nullum tempus doctrine originated as a 'prerogative of the Crown[,]' the doctrine's 'survival in the United States has been generally accounted for and justified on grounds of policy rather than upon any inherited notions of the personal privilege of the king.' .... Specifically, 'the source of its continuing vitality ... is to be found in the great public policy of preserving the public rights, revenues, and property from injury and loss, by the negligence of public officers'" (citations omitted).

Pixabay

Copyright/music royalties.  Alliance of Artists & Recording Cos. v. Gen. Motors Co., 306 F. Supp. 3d 422 (D.D.C. 2018).  Judge Jackson dismissed a trade-group-plaintiff claim against automakers that their in-car CD hard drives created digital music recordings (DMRs) within the meaning of the federal statute, the Audio Home Recording Act of 1992 (AHRA), entitling copyright holders to royalties.  The AHRA was intended by Congress to protect the music industry against the alarming ease of creating high-fidelity copies of digital music by requiring manufacturers, importers, and distributors to employ copy-control technology.  Though having earlier allowed the claim to proceed against other technical challenges under the AHRA, the court decided, with the benefit of the first phase of discovery, that the defendant automakers' devices were not digital audio recording devices within the meaning of the statute.  In a methodical analysis, Judge Jackson explained that the content of the hard drives was excluded from the statutory definition of a DMR because of the coordinate presence of play software and other data.  The court rejected industry's theory that the appropriate frame of analysis was a particular partition of the drive, where music code might be located more readily.  The D.C. Circuit affirmed, 947 F.3d 849 (2020).

Zimmerman
(All Pro Reels CC BY-SA 2.0)

Defamation, false light/actual malice.  Zimmerman v. Al Jazeera Am., LLC, 246 F. Supp. 3d 257 (D.D.C. 2017).  Two professional baseball players, both called Ryan (a Zimmerman and a Howard), sued Al Jazeera America over a documentary, The Dark Side: Secrets of the Sports Dopers (2015), in which an interviewee linked the pair to performance-enhancing drugs.  The plaintiffs were clearly public figures, so actual malice was at issue.  In a thorough explication of the making of the film followed by a straightforward recitation of the media torts, Judge Jackson narrowed the plaintiffs' claims to allegations stated in the film, excluding liability for promotional content.  The court found it plausible, upon "contextual clues," that a reasonable viewer could attribute the interviewee's statements to the filmmakers: "The film weaves [the source's] statements into a broader narrative about doping in sports that the producers themselves have purportedly confirmed through their own investigation."  Judge Jackson then explicated the actual malice standard and its amped up, St. Amant, iteration of recklessness.  Critically, the plaintiffs alleged that the source had recanted his claims about the Ryans during a subsequent, yet pre-publication, interview, giving Al Jazeera serious cause to doubt the source's veracity, if not actual knowledge of falsity.

Naturally, this case might be of interest to Court watchers, given the present hubbub over the Sullivan actual malice standard.  I'm no fan, and I'll have more to say about that in the future.  Zimmerman hardly depicts a Judge Jackson ready to pitch in with Justices Thomas and Gorsuch to upend the status quo.  But she understands the standard and at least might be amenable to a semantically sincere construction of "reckless disregard."

First Amendment/child pornography.  United States v. Hillie, 289 F. Supp. 3d 188 (D.D.C. 2018).  Criminal cases are not usually my jam, but this one had a First Amendment angle.  Judge Jackson allowed conviction of a defendant for sexual exploitation of a minor and possession of images of a minor engaging in sexually explicit conduct.  On the facts as explicated by the court, that sure seems like it was the defendant's intent: "carefully placing and positioning the camera in hidden locations in J.A.A.'s bedroom and bathroom" and "succeed[ing] in capturing several extended images of J.A.A.'s exposed genitals."  Missing, though, was the express "lasciviousness" required by federal statutes, a fatal flaw for the prosecution, the D.C. Circuit ruled.  14 F.4th 677 (2021).  The defendant relied on statutes, not the First Amendment, but the D.C. Circuit referenced First Amendment case law extensively to support its interpretation of what Congress required.  Despite the substantial latitude to which the government is entitled to prosecute child pornography, beyond the legal constraints of outlawing obscenity as to adults, the appellate court concluded that Judge Jackson erred in permitting the jury to infer the defendant's lascivious objective.  One might expect that social conservatives would side with Judge Jackson on this case. 

Labeled French beef
(by Yuka for Open Food Facts CC BY-SA 3.0)

First Amendment/commercial speech, compelled speech.  Am. Meat Inst. v. U.S. Dept. Agric., 968 F. Supp. 2d 38 (D.D.C. 2013).  This must have been a grilling initiation to the federal bench for Judge Jackson.  A meat industry trade association challenged "country of origin labeling" regulations (truly, "the COOL Rule") promulgated by the Department of Agriculture, on, as one might expect from Big Meat, any legal theory that might stick to the cast iron: namely, the statutory authority of the Agricultural Marketing Act, promulgation under the Administrative Procedure Act, and the First Amendment.  The first two make my eyes glaze over; it's the First Amendment that grabbed me.  Meat and the First Amendment are, of course, long-time frenemies, going back to the heyday of The Jungle, and on through the secret grocery workers of journalism ethics fame.  Then there was the whole pink slime era, and animal-welfare activists came trespassing through to take pictures.  Oh how we laughed until we cried.

Anyway, in this case, Judge Jackson capably explicated the niche case law of compelled commercial speech and charted the fine if squiggly line separating free speech and business regulation.  The risk of deception was more than merely speculative here, she opined, and consumers were demonstrably confused.  Industry mistakenly claimed a burden on its pocketbook, rather than its speech rights, Judge Jackson admonished.  The COOL Rule was reasonable and hardly burdensome for its expectation of truthful and uncontroversial disclosure.  Preliminary injunction was denied.

Big Meat was not easily deterred; the case went for a rodeo ride the following year.  The D.C. Circuit affirmed, 746 F.3d 1065 (Mar. 28, 2014), vacated upon granting rehearing en banc, No. 13-5281 (Apr. 4, 2014), and then reinstated affirmance (July 29, 2014).

U.S. Defense Department image (C)

FOIA/national security, law enforcement.  Elec. Privacy Info. Ctr. v. U.S. DOJ, 296 F. Supp. 3d 109 (2017).  Privacy advocate EPIC sued DOJ under the federal Freedom of Information Act (FOIA) to learn more about past wiretap spying under the post-9/11 Foreign Intelligence Surveillance Act.  EPIC was especially keen to see how the government had justified surveillance requests it set before the famously amenable Foreign Intelligence Surveillance Court (FISC).  Namely, EPIC sought: "(1) Westlaw printouts that were attached to a certain brief that the government submitted to the [FISC], and (2) portions of certain reports that DOJ issued to Congress, consisting of summaries of FISC legal opinions, descriptions of the scope of the FISC's jurisdiction, and discussions of process improvements."  DOJ produced a Vaughn index.  Ex parte and in camera, Judge Jackson reviewed the materials and adjudged them properly withheld under exemptions 1 (national security as to the congressional reports), and 3 and 7(E) (national security statutes and law enforcement techniques, as to everything else), with some nitpicks as to redactions and notations.  I'm sure EPIC did not care for the result, but the transparency problem seems to be a statutory one.  Judge Jackson did a pretty deep dive on the docs.

FOIA/Vaughn index, trade secrets, deliberative process.  McKinley v. FDIC, 268 F. Supp. 3d 234 (D.D.C. 2017), then No. 1:15-cv-1764 (D.D.C. Sept. 30, 2018).  Judicial Watch, per experienced FOIA-requester attorney Michael Bekesha, represented a plaintiff against the FDIC.  In the reported opinion in 2017, the court compelled the FDIC to produce a Vaughn index. The Judicial Watch plaintiff was investigating FDIC placement of Citibank into receivership in 2008 and 2009.  The FDIC sought to protect 12 documents as trade secrets and eight documents as deliberative process.  The court faulted the FDIC for failing to support either claim of exemption with any contextual explanation, including the nature of its decision-making authority on the latter claim.

I note that Judge Jackson's reasoning on the trade-secret analysis might have been undermined subsequently by the Supreme Court's industry-deferential ruling on exemption 4 in Food Marketing Inst. v. Argus Leader Media (U.S. 2019).  (I signed on to an amicus on the losing side in FMI.)  In an earlier FOIA case, Government Accountability Project v. FDA, 206 F. Supp. 3d 420 (D.D.C. 2016), Judge Jackson similarly relied on pre-FMI doctrine to reject, as unduly conclusory, FDA resistance, at the behest of a pharma trade association, to production of records on antimicrobial medications.

Vaughn index in hand on remand, plaintiff persisted in challenging the adequacy of the FDIC search and "whether withheld information 'has already been made public through an official and documented disclosure.'"  Judge Jackson rejected both claims in a short opinion in 2018.  She found the first merely speculative.  As to the second, the plaintiff "argued that the FDIC's withholdings were improper because the requested information was 'officially' acknowledged by Former FDIC Chairman Sheila Bair in the book Bull by the Horns—a book that Bair published after leaving office."  Judge Jackson held that "that contention, too, must be rejected. A book or other material that a former government official publishes in her personal capacity does not qualify as an 'official acknowledgment' of the information contained therein for the purpose of FOIA."

Bison trophy at Beaty Biodiversity Museum, Vancouver, B.C.
(by Nikkimaria CC BY-SA 3.0)

FOIA/deliberative process, personal privacy.  Conservation Force v. Jewell, 66 F. Supp. 3d 46 (D.D.C. 2014).   A nonprofit foundation that promotes big-game hunting sued U.S. Fish and Wildlife, in the Department of Interior, under the FOIA to obtain records related to denials of permits that would allow the import into the United States of hunting trophies of Canadian bison.  For the record, I'm fine with denying those permits, and I could be persuaded to block importation of the hunters, too.  Nevertheless, transparency....  

Judge Jackson authored a workmanlike exploration of various exemption theories asserted by Interior: accepting attorney-client privilege (exemption 5) and personal-information exemption (6); rejecting deliberative-process exemption, crime-fraud exception to attorney-client privilege, and work product privilege (all exemption 5).  She cited House reports to bolster her interpretations of what exemptions 5 and 6 require.  In a pattern that became familiar, or maybe just speaks to agency neglect, she faulted Interior for a conclusory ("woefully short") Vaughn index that failed to support exemption.  As to exemption 6, which has been aggressively enlarged by federal courts in furtherance of the privacy rage, Judge Jackson accepted Interior's redaction of employee personal information as more or less immaterial to the sought-after accountability.  The D.C. Circuit affirmed summarily in No. 15-5131 (Dec. 4, 2015).

FSIA/CFAA; forum non conveniens.  Azima v. RAK Invest. Auth., 305 F. Supp. 3d 149 (D.D.C. 2018).  Judge Jackson was reversed in this one, 926 F.3d 870 (D.C. Cir. 2019), but I prefer her analysis.  Under the Computer Fraud and Abuse Act (CFAA) and for common law conversion and unfair competition, plaintiff, a Kansas City, Mo., businessman, sued a business partner, a public investment authority (RAKIA) of the United Arab Emirates (UAE, specifically the Emirate of Ras Al Khaimah), after their business relationship soured, alleging that RAKIA "commissioned the repeated surreptitious hacking of his personal and business laptops ... and then published disparaging material that was illicitly gleaned from Azima's computers...."  RAKIA sought dismissal under the Foreign Sovereign Immunities Act (FSIA) on grounds of sovereign immunity, under a contractual forum selection clause, and, relatedly, under the common law venue doctrine of forum non conveniens.

Judge Jackson rejected all three grounds.  The plaintiff plausibly portrayed RAKIA, an investor rather than governing entity, as a commercial actor and alleged tortfeasor, bringing into play the FSIA commercial and tort exceptions.  As alleged, the hacking would have inserted malware into the plaintiff's computer systems, even if the insertion occurred abroad, so the locus of alleged tortious injury was Kansas City, bolstering the FSIA analysis.  The forum selection clause did not pertain, Judge Jackson reasoned, because it was articulated in the parties' contract for a prior commercial venture; the contract hardly covered subsequent hacking.

As to venue, Judge Jackson faulted RAKIA for failing to meet its "heavy burden" to show that Azima would get a fair shake in RAKIA's preferred venue of London, where RAKIA might have hoped for a more favorable outcome on immunity.  I like that analysis—but cf. infra, re wrongful death/forum non conveniens.  My comparative law class just read Professor Vivian Curran's masterful recent work on foreign law in U.S. courts, in which she convincingly demonstrated U.S. federal judges' penchant to over-employ forum non conveniens and thus shirk their responsibility to adjudicate.  

Perhaps proving Prof. Curran's thesis, the D.C. Circuit disagreed, holding that the forum selection clause burdened the plaintiff with having to show why London would not work as an appropriate venue, else face dismissal for forum non conveniens.  I would be remiss not to mention also: Prof. Curran further faulted the courts for lazy reliance on partisan evidence (my words) when foreign law is concerned, and both Judge Jackson and the D.C. Circuit declared a lack of any responsibility to investigate themselves the adequacy of London as a forum.

FSIA/torture.  Azadeh v. Iran, 318 F. Supp. 3d 90 (D.D.C. 2018).  Plaintiff was an inmate of an Iranian jail and alleged torture and intentional torts at the hands of the republic.  A U.S. court ruling in such a matter is principally symbolic.  Iran will not respond; a plaintiff might hope to recover against a U.S. government claim on frozen assets.  Accordingly, in this case, a magistrate judge recommended entering default judgment in favor of the plaintiff.  I have here omitted cases in which Judge Jackson adopted in toto a magistrate's report; in this case, she did not.

Relying on a manual of the U.S. district courts, the plaintiff had effected service on the state of Iran erroneously, under the wrong order of process under the FSIA.  Judge Jackson wrote: "Judges are sometimes called upon to set aside heart-wrenching and terrible facts about a claimant's treatment at the hands of a defendant and enforce seemingly draconian, technical mandates of law. This is an especially difficult duty when the machinery of the judicial system itself appears to have played a role in the claimant's mistaken view of the applicable legal requirements. The somber circumstances of the instant case present one such scenario...."  The court put the default judgment on hold and gave the plaintiff a second crack at proper service.  Judge Jackson subsequently entered default judgment against Iran, in the sum of $36,411,244, in No. 1:16-cv-1467 (D.D.C. Sept. 5, 2018).  Reproduced therein, the magistrate's report detailed the plaintiff's ordeal.

Insurance/settlement.  Blackstone v. Brink, 63 F. Supp. 3d 68 (D.D.C. 2014) (D.C. law).  In an insurance dispute arising from the alleged wrongful death of a pedestrian, plaintiffs and their attorney apparently changed position on whether to settle with defendant-driver's insurer, State Farm, for the defendant's $100,000 policy limit.  After a telephone conversation, State Farm sent a check and a release form to the plaintiffs' attorney.  The check crossed in the mail with a letter from the attorney rejecting the offer.  Applying D.C. law, Judge Jackson determined that the parties had reached an enforceable agreement on the telephone, evidenced by the specificity of the attorney's instructions on how and where to send the check.  The court wrote of the parties' competing narratives: "On this record, it is far more plausible that [plaintiff counsel] accepted [State Farm's] offer on behalf of his clients [plaintiffs], intended that it be final and binding, and later had misgivings about his earlier decision to accept. Unfortunately for Plaintiffs, courts have long held that such buyer's remorse does not vitiate a demonstrated initial intent to be bound by the settlement agreement" (original emphasis).

A Medtronic product (Alan Levine CC BY 2.0)

Product liability/causation, preemption, learned intermediary.  Kubicki v. Medtronic, 293 F. Supp. 3d 129 (D.D.C. 2018) (D.C. law).  Parents of a diabetic consumer who suffered traumatic brain injury as a result of low blood-sugar levels sued the manufacturers of an insulin pump, alleging various theories of product liability.  Judge Jackson threw out some claims, against one manufacturer and upon one theory, as time barred, because plaintiffs had added them to the complaint too late for the District's three-year statute of limitations.  Judge Jackson navigated the tricky shoals of preemption doctrine to find some but not all liability theories expressly preempted, and the remainder not impliedly preempted, by FDA medical-device approval.  A sliver of remaining plaintiff theories survived summary judgment for presenting triable questions of fact on causation and on the learned intermediary doctrine relative to alleged failure to warn.

Trademark/infringement.  Yah Kai World Wide Enter. v. Napper, 195 F. Supp. 3d 287 (D.D.C. 2016).  The defendant ran the Everlasting Life Restaurant & Lounge as an enterprise of the African Hebrew Israelite community, "who claim to be descendants of biblical Israelites and who follow a strict vegan diet," until their relationship soured.  The plaintiff-community sued when the defendant persisted in doing business as "Everlasting Life," which a community leader had registered as a service mark (pictured).  Trial did not go well for the defense; Judge Jackson wrote that the defendant "displayed some signs of dissembling, such as the evasive nature of his answers with respect to the existence of a purportedly independent and unincorporated food business that he claimed to have created by himself in his home garage prior to the Community's formation of its restaurant businesses."  The court found likelihood of confusion and, accordingly, infringement.  If only defendant had partnered with Big Meat to serve litigious hungry hunters returning from Canada.

Wrongful death/sovereign immunity, contributory negligence.  Whiteru v. WMATA, 258 F. Supp. 3d 175 (2017).  This time the WMATA, the D.C. transit authority, was a negligent defendant rather than plaintiff—cf. WMATA, supra, in civil procedure/statute of limitations—and this time, the authority was ruled not sovereign for purposes of immunity.  In what was essentially a slip-and-fall, the plaintiff-decedent's estate and parents blamed the WMATA for not discovering the decedent—a lawyer, by the way—injured on a train platform, in time to provide life-saving medical treatment.  A creature of state compact and D.C. statute, the WMATA enjoys an immunity analogous to that of federal defendants under the Federal Tort Claims Act (FTCA).  Borrowing the FTCA rule of immunity for discretionary governmental functions, which often presents a frame-of-reference problem in its granular application, Judge Jackson rejected the WMATA theory that officials' conduct was discretionary.  Rather, properly, I think, the court accepted the plaintiff's framing of the case as alleging unreasonable comportment with the WMATA standard operating procedures for platform inspection.

At that time in 2017, factual questions in the case precluded summary judgment.  However, in 2020, Judge Jackson awarded the WMATA summary judgment upon the plaintiff's contributory negligence.  480 F. Supp. 3d 185.  The District is not a comparative fault jurisdiction.  The plaintiff's heavy intoxication when he fell was undisputed, and, Judge Jackson opined, video evidence plainly showed that the plaintiff fell because he over-relied on a low wall for support.  Just this month, the D.C. Circuit reversed and remanded,  ___ F.4th ___ (Feb. 11, 2022), holding that under D.C. law for common-carrier liability, contributory negligence is not the complete defense that it usually is in negligence in the District.

Suggested search area for MH370 debris
(Andrew Heneen CC BY 4.0)

Wrongful death, product liability/forum non conveniens.  In re Air Crash Over the Southern Indian Ocean, 352 F. Supp. 3d 19 (D.D.C. 2018) (multi-district litigation).  This case marks a tragic disappointment.  Judge Jackson dismissed for improper venue, forum non conveniens, the claims of families of passengers of missing airliner MH370 against defendants including Malaysia Airlines and Boeing.  The claims arose under the Montreal Convention on international air carriage, common law wrongful death, and product liability.  The thrust of the problem is that what happened to MH370, including the final resting place of the fuselage and an understanding of what went wrong, remains a mystery, and even less was known in 2018.  My money is on pilot hijacking, by the way; read more in the definitive account to date by the incomparable William Langewiesche for The Atlantic. 

Judge Jackson opined:

All told, the Montreal Convention cases in this MDL involve only six U.S. citizens with a direct connection to the Flight MH370 tragedy, as either plaintiffs or decedents. Among the hundreds of passengers on that flight, only three were citizens of the United States, and while the United States undoubtedly has a strong public interest in the claims involving their deaths, its interest pales in comparison to Malaysia's interest in litigating these claims. Malaysia's public interest includes not only an interest in the untimely deaths of the Malaysian pilot and crew, but also an interest in determining precisely what happened to Flight MH370, given that a Malaysian airline owned, operated, and maintained the aircraft; the flight took off from an airport in Malaysia for a destination outside the United States; and it disappeared from radar when Malaysian air traffic controllers were handing off the flight. And Malaysian authorities made substantial investments of time and resources in the wake of this disaster: Malaysia conducted extensive civil and criminal investigations, and changes in Malaysian law led to the creation of a new national Malaysian airline. It is Malaysia's strong interest in the events that give rise to the claims at issue here that makes this a distinctly Malaysian tragedy, notwithstanding the presence of the few Americans onboard Flight MH370. 

I really want to lash out against this reasoning.  But probably it would be like when I was a little kid fed up with allergy-testing shots and kicked my doctor.  Despite my reservations about forum non conveniens, see Prof. Curran, supra, I admit that my frustration stems from doubt that the case could be fairly prosecuted in Malaysia, even if the plane is found, rather than a confidence that the United States is a logical venue.  It might not even matter, as the Montreal Convention probably would curb recovery even in U.S. courts.  Insofar as I have any legitimate gripe, it's in part that forum non conveniens is just a witless rule out of step with a globalized world, and in part that Judge Jackson should have done some independent investigation of the adequacy of Malaysia as a forum.

The aftermath of the MH370 disappearance revealed concerning deficits in transparency, and, thus, potentially in accountability, in the Malaysian investigative process.  And while I don't think Boeing is to blame, having watched Downfall: The Case Against Boeing (2022) on Netflix just last weekend—Langewiesche wrote about the 737 MAX for The New York Times—leaves me distrustful.  Indeed, however relying upon precedent, Judge Jackson declined MH370 plaintiffs' last-ditch demand that, at least, Boeing be compelled to promise to abide by U.S. discovery in connection with any subsequent litigation abroad.

The D.C. Circuit affirmed, 946 F.3d 607, and the Supreme Court denied cert., 141 S. Ct. 451, in 2020.

⚖️

Here are some quirky pro se claims, just to stimulate the noggin.

Defamation/litigation privilege/statute of limitations.  Ray v. Olender, No. 13-1834 (D.D.C. Nov. 21, 2013).  Judge Jackson dismissed an odd $5m pro se defamation claim against an attorney, apparently based on a 1965 suit for copyright infringement and counter-suit.  She held the claim barred by the one-year D.C. statute of limitations and, anyway, based on statements in pleadings, protected by the litigation privilege.

Copyright/infringement.  Buchanan v. Sony Music Ent., No. 18-cv-3028 (D.D.C. May 26, 2020).  In a wide-ranging complaint, pro se plaintiff accused defendant music producers of stealing from songs he submitted for consideration.  Dismissed, because three of four songs were not registered; plaintiff could not show that any producer actually received a copy of the fourth song demo tape; and plaintiff anyway failed to allege substantial similarity, beyond allegation of "steal[ing]," between defendants' hits and the plaintiff's "I Gos Ta Roll." 

Copyright/pleading.  Butler v. Cal. St. Disbursement Unit, No. 13-1684 (D.D.C. Oct. 23, 2013).  Pro se plaintiff accused the state of copyright infringement for using his name in all capital letters.  Dismissed for failure to plead adequately.  BUTLER.

Copyright/subject-matter jurisdiction.  Miller v. Library of Congress, No. 1:18-cv-02144 (D.D.C. Nov. 5, 2018).  Judge Jackson dismissed for lack of subject matter jurisdiction a $100m pro se copyright infringement claim by an author of "a book of songs" who alleged that the Library of Congress stole the book and allowed it to be used by others.  Held, he should have filed in the Federal Claims Court.  I'd return the book, but the fines....

FTCA/FOIA, civil rights.  Cofield v. United States, 64 F. Supp. 3d 206 (D.D.C. 2014).  A Maryland prisoner, pro se plaintiff sought billions in damages against ICANN and the Obama Administration for improper FOIA denials and race discrimination.  On the latter count, the plaintiff essentially accused the government of establishing a business monopoly in ICANN that leaves African-American persons "intentionally omitted, to be left behind when it comes to technology ... by design[.]"  An intriguing idea, but not the best spokesperson.  The court dismissed for sovereign immunity, as the Federal Tort Claims Act (FTCA) authorizes neither FOIA complaints, which do not entitle a plaintiff to tort damages, nor constitutional claims.

Defendant-Justice Scalia (Shawn CC BY-NC 2.0)

Legal profession/sovereign immunity, absolute immunity.  Smith v. Scalia, 44 F. Supp. 3d 28 (D.D.C. 2014).  Yup, that Scalia.  The pro se plaintiff was denied admission to the Colorado Bar after "refus[ing] to submit to a mental status examination," and then sued officials, including judges who denied his appeals.  Even the International Covenant on Civil and Political Rights, which rated among plaintiff's theories, cannot overcome federal sovereign and judicial absolute immunities, Judge Jackson held.  She declined to order Rule 11 sanctions, but did hit the frequent-filing plaintiff with a pre-filing injunction, going forward.

Maoz Falafel, Paris
(Björn Söderqvist CC BY-SA 2.0)

⚖️

Finally, I don't really care what happened in this case; I just love its name: A Love of Food I v. Maoz Vegetarian USA (D.D.C. 2014).  Plaintiff Love of Food was "a franchise of Maoz's vegetarian quick service restaurant" in D.C.  When the business failed, Love of Food blamed Maoz.  Maoz had failed to register its offering prospectus properly with the state of Maryland, but, Judge Jackson held, that omission did not give Love of Food standing.  The court issued mixed results on the, uh, meatier claims of misrepresentation, finding a material dispute of fact over the veracity of startup estimates.

Just wait 'til Big Meat hears about this.

I gos ta roll.

Court affirms widow's $21m verdict vs. Big Tobacco, upholds punitive damages despite '98 settlement

Marlboro Red Open Box by Sarah Johnson (CC BY 2.0)

The Massachusetts Supreme Judicial Court today affirmed a $21m verdict against Philip Morris USA in favor of the widow of a smoker who died of lung cancer in 2016.

Fred R. Laramie started smoking in 1970, at age 13, when a store clerk gave him a free sample pack of Marlboros, the Supreme Judicial Court (SJC) recounted.  He became a pack-a-day smoker and remained loyal to the brand, unable to quit despite trying, until his diagnosis and death in 2016.

Laramie's wife, Pamela, sued under the Massachusetts wrongful death statute.  She alleged that Marlboros were dangerously defective for their engineered addictive properties, an excess of the risk of smoking known to consumers and indicated on cigarette labels since 1969.  The jury in the Superior Court awarded Pamela Laramie $11m in compensatory damages and $10m in punitive damages.

The bulk of the high court's 37-page, unanimous opinion analyzes the inventive defense argument that the large punitive award is precluded by the 1998 Master Settlement Agreement (MSA) of state claims against Big Tobacco.  As the court recalled in a footnote:

The [Big Tobacco] defendants agreed to pay approximately $240 billion to the settling States over twenty-five years, and to pay approximately $9 billion per year thereafter in perpetuity, subject to various adjustments. The agreement allocated approximately four percent of those payments to the Commonwealth. The defendants also agreed to restrict cigarette advertising and lobbying efforts, to permit public access to certain internal documents, and to fund youth education programs.

Punitive damages are not awarded in Massachusetts common law; they must be authorized by statute.  The wrongful death statute authorizes punitive damages when the defendant caused injury "by ... malicious, willful, wanton or reckless conduct ... or by ... gross negligence."

The plaintiff successfully relied on internal documents of Big Tobacco that demonstrate the artificial manipulation of the nicotine content in cigarettes.  In the 1990s, the revelation of such records marked the plaintiff breakthrough that precipitated the collapse of Big Tobacco's long-successful wall of defenses in product liability litigation.  The revelation represented, more or less, the information at issue in the case of whistleblower-scientist Jeffrey Wigand, reported in 1996 by Vanity Fair and 60 Minutes and subject of the 1999 feature film, The Insider.

The SJC rejected the defense argument of claim preclusion.  The court recognized a qualitative difference between the claims of the Attorney General that resulted in the MSA and the claim of Laramie that persuaded a jury.

The "wrong" the plaintiff sought to remedy was the loss she and her daughter sustained due to Laramie's death, caused by Philip Morris's malicious, willful, wanton, reckless, or grossly negligent conduct, see [wrongful death statute,] G. L. c. 229, § 2. The "wrong" the Attorney General sought to remedy, by contrast, was the Commonwealth's increased medical expenditures caused by Philip Morris's commission of unfair or deceptive acts or practices in violation of [consumer protection law,] G. L. c. 93A, § 2.

Product liability, like punitive damages, is not a function of common law in Massachusetts, at least formally.  The commonwealth imposes strict product liability through a wide-ranging consumer protection statute, "chapter 93A."  Product liability is effectuated formally as a warranty obligation by eliminating the requirement of contractual privity between plaintiff and defendant.  But from that point, functionally, the courts breathe life into the system with multistate common law norms.

Probably Philip Morris's best argument for claim preclusion arose in the theory that chapter 93A affords treble damages, which were incorporated, in theory, into the MSA, and therefore overlaps with chapter 229 in wrongful death.  But the court distinguished the two statutes.  While both afford punitive recovery, the tests and purposes differ.  Damages under 93A were predicated on commercial practices that caused injury to state interests, while 229 damages, which are not capped, arise from culpability in inflicting personal injury on a decedent in a wrongful death action, here, Fred Laramie.

The court rejected a range of other asserted errors, whether because not error or harmless error, in relation to evidentiary admissions, jury instructions, and closing arguments.  Philip Morris had prevailed in the trial court on plaintiff claims of negligence and civil conspiracy.

With regard to jury instructions, the SJC distinguished product liability in warning defect, which was not plaintiff's theory of liability, from the design defect the plaintiff did claim.  The jury was properly instructed, the court held, that 

congressionally mandated warnings were adequate as a matter of law to warn Mr. Laramie and other members of the public of the hazards associated with smoking. The law, however, does not permit a cigarette manufacturer through its statements or actions to mislead consumers or make misrepresentations about the risks or hazards associated with smoking.

Philip Morris complained that the jury was thereby misled to test for liability in misrepresentation or warning defect.  The excerpted bit strikes me, too, as problematic.  Nevertheless, the SJC wrote that the jury was correctly instructed on the elements, so the instructions were "clear" when "viewed as a whole."

Interesting for torts pedagogy in product liability is the court's recitation of defense theories that were rejected at trial.

In its defense, Philip Morris introduced evidence that there was no adequate, safer alternative design for Marlboro cigarettes. An expert for Philip Morris testified that all cigarettes are dangerous, and that any proposed alternative design was not safer, not acceptable to consumers, or not technologically feasible. Philip Morris maintained that Marlboro cigarettes were not unreasonably dangerous to Laramie because Laramie understood the risks of smoking.

Reports linking smoking to cancer had been published in the 1950s and 1960s, and people had recognized that tobacco was addictive "going back almost [one hundred] years."  Moreover, there was testimony that every pack of Marlboro cigarettes sold between 1970 and 1984 contained a warning label from the Surgeon General that "cigarette smoking is dangerous to your health," and that every pack sold thereafter contained one of four warning labels that are still in use. Cigarette advertisements also were banned from television and radio beginning in January 1971, when Laramie was thirteen or fourteen years old. In addition, since January 1972, every print advertisement for cigarettes has been required to include a warning label similar to those on cigarette packs.

In sum, based on this evidence, Philip Morris argued that Laramie caused his own death because, despite being adequately informed of the health risks of smoking, Laramie chose to smoke, and then chose not to quit smoking.

(Paragraph breaks added.)  The plaintiff overcame the no-alternative-design defense by hypothesizing that Fred Laramie might not have become addicted to a low-nicotine cigarette.  Defense theories in assumption of risk, personal choice, and sufficiency of warning all fell short against the showing of nicotine manipulation.

The case is Laramie v. Philip Morris USA, Inc., No. SJC-13070 (Mass. Sept. 15, 2021) (oral argument at Suffolk Law).  Justice Dalila Argaez Wendlandt authored the opinion for the unanimous panel of six justices.  Disclosure: As an attorney in private practice, I worked on the Philip Morris defense team on tobacco litigation in the 1990s.

No duty: Court clears homeowner of liability in fatal shooting that sparked town ban on Airbnb

Not where the party was: historic Henfield House in Lynnfield, Mass.
(photo by John Phelan CC BY 3.0)

A homeowner is not liable in the shooting death of a party guest in a case that sparked a town ban on Airbnb, the Massachusetts Supreme Judicial Court ruled on June 7.

A 33-year-old father of two, Keivan B. Heath was shot and killed at a house party in Lynnfield, in northeastern Massachusetts, in the early-morning Sunday hours of Memorial Day weekend in 2016.  The plaintiff in wrongful death sued party organizers and the homeowner, who had rented out the house.

According to the court opinion, drawing facts from the complaint with reasonable inferences in favor of the plaintiff, defendant Victor had "informed the [homeowner] that he planned to hold a college reunion party. However, he advertised a Saturday event on social media as the 'Splash Mansion Pool Party,' open to 'Special Invitation & Girls Only,' with three named disc jockeys to provide the music."  More than 100 persons attended.  

The property was the home of the Styller family.  The property comprised "a 5,000 square foot home, a three-car garage, a 2,000 square foot patio, an in-ground heated pool, and a pool house with a fireplace and a bar on a three-acre lot in Lynnfield."  Defendant Styller

rented out the premises for short periods of time using a variety of Internet platforms [including Airbnb and HomeAway (now Vrbo), according to Boston magazine]. During each rental, the [Styller family] would leave the property and stay elsewhere. In the listings, the defendant touted the property's secluded location, fenced-in yard, and electronically operated gates. He also described the property as being in one of the safest areas in Massachusetts. Renters used the house for, among other things, business retreats, conferences, "photo shoots," and reunions.

The court described the tragedy:

At approximately 3 a.m., police received two 911 calls reporting that someone at the party had been shot; one caller said that the decedent was "dying," and the other reported that people were attempting cardiopulmonary resuscitation and then said, "he's gone." Police arrived to find many vehicles leaving and people fleeing on foot. The decedent was lying alone, face up and unresponsive, near the pool. He was transported to a nearby hospital, where he was pronounced dead in the emergency room. The cause of death was two gunshot wounds to the chest.

The murder remains unsolved.

Affirming dismissal in favor of Styller, the SJC opinion is a straightforward analysis of duty in negligence.  The duty of a property owner reasonably to maintain property in a safe condition does not extend generally to protect an injured from the "dangerous or unlawful acts" of third parties.

The plaintiff attempted to predicate liability on "special relationship" exceptions for foreseeable harms and for common-carrier defendants.  The court rejected both theories.  On foreseeability, courts have drawn exceptions in cases in which property owners knew of violent crimes on premises in the past.  But plaintiffs could not sustain the allegation here.  "Although the complaint cites a finding made by a Land Court judge in a related case that short-term rentals have 'significant external effects on the neighboring community and community at large,' it does not allege that short-term rentals are correlated with an increase in violent crime" (footnotes omitted).

Significantly for the short-term rental market, the court refused to analogize an Airbnb, Vrbo, etc., host to a common carrier or place of public accommodation, such as a transport provider, restaurant, or hotel, which would enhance the defendant's duty.  "This comparison missed the mark," the court wrote.

Aside from the fact that there is no allegation of any relationship between the defendant and the decedent other than the fact that the decedent was shot and killed on property owned by the defendant, perhaps the biggest difference between the relationship between a business establishment and its customers and the defendant's relationship to the decedent is that the defendant had no control over the premises during the rental period.

Styller's duty as a property owner stopped with the condition of the property at the time he turned over the keys.

In a related case decided the same day, the SJC ruled against Styller in a dispute in Land Court with the town of Lynnfield.

After the Heath murder, Lynnfield amended town law expressly to ban short-term property rentals, such as Airbnbs.  Lynnfield asserted that short-term rentals such as Styller's already violated the law.  But ordinances, such as a prohibition on operating a "lodging or rooming house," were ambiguous on the contemporary home rental question.

The SJC disagreed with the Land Court's ruling that the short-term rental of a whole home violated the law as to rooming houses, before amendment.  However, Styller wanted a ruling that his prior use was permissible, and the SJC would not go that far.  In the sum of various provisions, the court held, town law "clearly and unambiguously excluded, in pertinent part, purely transient uses of property in [a residential zoning district]."

Of interest from a procedural perspective, the court ruled on the zoning case despite alleged mootness arising from Styller's sale of the property.   "Unlike standing, 'mootness [is] a factor affecting [the court's] discretion, not its power,' to decide a case," the court explained.

[W]e view the viability of short-term rental use of property in the context of existing zoning regulations as one of public importance, in the sense that it raises "an important public question whose resolution will affect more persons than the parties to the case" and that "is primarily a matter of statutory [or, in this case, zoning bylaw] interpretation, not dependent on the facts of the particular case."

As well, Styller argued that the permissibility of the rental before the town amended the law remained a live issue in collateral matters of insurance coverage.

The wrongful death case is Heath-Latson v. Styller, No. SJC-12917 (June 7, 2021) (Justia).  The zoning case is Styller v. Zoning Board of Appeals, No. SJC-12901 (June 7, 2021) (Justia).  Chief Justice Kimberly S. Budd wrote both opinions for a unanimous court, excluding the two most recently appointed justices.