The Lawletter Vol 42 No 7

John Stone, Senior Attorney, National Legal Research Group

            According to the "intervening causes doctrine," there can be no proximate cause, as is required for liability in a negligence case, where there has intervened between the act of the defendant and the injury to the plaintiff an independent act or omission of someone other than the defendant, that was not foreseeable by the defendant, was not triggered by the defendant's act, and was sufficient of itself to cause the injury. As a general rule, suicide is deemed an unforeseeable intervening cause of death that absolves the tortfeasor of negligence liability in an action for wrongful death.

            When a mother brought an action against a city and its police officer for wrongful death arising out of her teenage daughter's suicide death, after the officer's disclosure of photographs of the daughter's body following her previous suicide attempt, the claim failed because of the intervening cause doctrine.  City of Richmond Hill v. Maia, No. S16G1337, 2017 WL 2332660 (Ga. May 30, 2017).

The Lawletter Vol 42 No 7

Paul Ferrer, Senior Attorney, National Legal Research Group

            Rule 4(f) of the Federal Rules of Civil Procedure establishes three mechanisms for serving an individual in a foreign country. First, service may be had "by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention." Fed. R. Civ. P. 4(f)(1). The Hague Convention is the standard method for serving an individual in a foreign country, but it does not preempt all other methods of service on individuals in another signatory nation. See 4B Charles A. Wright et al., Federal Practice and Procedure § 1134 (4th ed. & Westlaw updated through Apr. 2017). Rather, all three methods of service under Rule 4(f) are "on equal footing," and a plaintiff need not attempt service by any one method before resorting to another. Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1015-16 (9th Cir. 2002). Second, if there is no internationally agreed means, or if an international agreement allows but does not specify other means, then service may be had "by a method that is reasonably calculated to give notice," including service "as prescribed by the foreign country's law for service in that country in an action in its courts of general jurisdiction," or by delivering a copy of the summons and complaint to the individual personally, unless that method is prohibited by the foreign country's law. Fed. R. Civ. P. 4(f)(2)(A), (C). Third, an individual may be served in a foreign country "by other means not prohibited by international agreement, as the court orders." Id. R. 4(f)(3).

The Lawletter Vol 42 No 7

Matthew McDavitt, Senior Attorney, National Legal Research Group

            In the execution of wills, many testators utilize the optional execution of self-proving affidavits, where statutorily authorized, wherein the will execution witnesses sign a statement before an officer authorized to administer oaths affirming their observation of the testator's mental capacity and testamentary intent, as well as the signing of the will. A properly executed self-proving affidavit raises a legal presumption of due execution and eliminates the normal requirement mandating that witnesses to a will testify in court as to the authenticity of the will.

            In practice, self-proving affidavits are normally created contemporaneously with the execution of the will, and some states' statutes mandate such simultaneous affidavit execution. However, some state statutes expressly allow self-proving affidavits to be executed at any time after the observed will execution. Thus, for example, we see both simultaneous and postexecution self-proving affidavit execution mentioned in Michigan's statutory provision on the subject:

The Lawletter Vol 42 No 7

Lee Dunham, Senior Attorney, National Legal Research Group

            Collateral estoppel, also known as "issue preclusion," prohibits relitigation of factual or legal issues that have been "actually and necessarily decided" in earlier litigation. See, e.g., Banga v. First USA, 29 F. Supp. 3d 1270, 1280-81 (N.D. Cal. 2014) (citing San Remo Hotel L.P. v. San Francisco City & County, 364 F.3d 1088, 1094 (9th Cir. 2004)).  Unlike the related doctrine of res judicata (or "claim preclusion"), which operates as a complete bar to relitigation of an entire claim, under collateral estoppel, the (new and different) claim may proceed, but "the prior judgment conclusively resolves an issue actually litigated and determined in the first action." DKN Holdings LLC v. Faerber, 61 Cal. 4th 813, 824, 352 P.3d 378, 386-87 (2015), reh'g denied (Aug. 12, 2015).  Claim preclusion bars litigation of all issues that were or could have been litigated in the original action under the original claim, while issue preclusion resolves only those issues that were actually litigated. Banga, 29 F. Supp. 3d at 1280-81.

The Lawletter Vol 42 No 6

Fred Shackelford, Senior Attorney,National Legal Research Group

            In a case of first impression, the Indiana Supreme Court has addressed two issues that affect actions arising from injuries to plaintiffs who are in the United States unlawfully. In Escamilla v. Shiel Sexton Co., Inc., 73 N.E.3d 663 (Ind. 2017), an unauthorized immigrant (a Mexican citizen) was injured while working as a masonry laborer at an Indiana job site. He sued the general contractor, which argued that his immigration status should bar him from recovering damages for decreased earning capacity. The Escamilla court addressed both that issue and the admissibility of the plaintiff's status.

            As to the first issue, the court ruled that the plaintiff could recover damages for decreased earning capacity. The court relied upon the Open Courts Clause in the state's constitution, which mandates that courts shall be open and that "every person . . . shall have remedy by due course of law." Id. at 665. The court reasoned that "[w]e cannot read the Open Courts Clause's 'every person' guarantee to exclude unauthorized immigrants." Id. at 667.

The Lawletter Vol 42 No 6

Nicole Prysby, Senior Attorney, National Legal Research Group

            In interpreting the coverage of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, appellate courts have held that the prohibition against discrimination based on sex does not encompass discrimination based on sexual orientation. E.g., Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000); Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979). In December 2012, however, the Equal Employment Opportunity Commission ("EEOC") took the opposite position in a Strategic Enforcement Plan that prioritized enforcement of discrimination against lesbian, gay, bisexual, and transgender employees under the sex discrimination provisions of Title VII. Since that time, the EEOC has filed a number of lawsuits alleging discrimination against gay and lesbian employees and has consistently maintained that Title VII's prohibition of discrimination based on sex protects employees against discrimination based on sexual orientation. See, e.g., Complainant v. Anthony Foxx, Secretary, Dep’t of Transp. (Fed. Aviation Admin.), Agency, EEOC DOC 0120133080, 2015 WL 4397641 (July 15, 2016).

The Lawletter Vol 42 No 6

Jason Holder, Senior Attorney, National Legal Research Group

            The Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq., is designed "to ensure that all children with disabilities have available to them a free appropriate public education ["FAPE"]."  20 U.S.C. § 1400(d)(1)(A).  In Fry v. Napoleon Community School, 137 S. Ct. 743 (2017), the Supreme Court examined an IDEA provision which "addresses the Act's relationship with other laws protecting those children." Id. at 748. While the provision does not limit rights under other federal laws, it provides that "if a suit brought under such a law 'seek[s] relief that is also available under' the IDEA, the plaintiff must first exhaust the IDEA's administrative procedures." Id. (citing 20 U.S.C. § 1415(l)).

            Under the IDEA, an individualized education program ("IEP") serves as the primary vehicle for providing a child with a FAPE.  Id. at 749 (citing Honig v. Doe, 484 U.S. 305, 311 (1988)). If parents are unsatisfied with an IEP, they can file a complaint with the local or state educational agency (as provided by state law) or "may instead (or also) pursue a full-fledged mediation process." Id. Next, the parents may seek a due process hearing appealable to a state agency (if originally conducted at the local level).  Id.  Only after these steps are completed may a parent seek judicial review with a civil action in state or federal court.  Id.

The Lawletter Vol 42 No 6

Emily Abel, Research Attorney, National Legal Research Group

            On March 17, 2017, in Heneberry v. Pharoan, 232 Md. App. 468, 158 A.3d 1087 (2017), the Maryland Court of Special Appeals addressed the issue of what is required to prevail on a breach-of-contract claim in a medical malpractice action. The plaintiff, Valerie Heneberry ("Heneberry") who was suffering from acute appendicitis, received an appendectomy from Dr. Bashar Pharoan ("Dr. Pharoan"). During the surgery, Dr. Pharoan removed most of Heneberry's appendix, but left the "stump" of the appendix. Heneberry alleged that because of Dr. Pharoan's failure to remove her entire appendix, she experienced severe pain and was forced to undergo an additional surgical procedure to remove the remainder of her appendix.

            In addition to bringing claims for negligence and loss of consortium, Heneberry included in her medical malpractice complaint a count alleging that Dr. Pharoan had breached their contract. Specifically, Heneberry alleged that Dr. Pharoan had a "contractual obligation to perform an appendectomy, which is the removal of the appendix, not a portion of the appendix, and [there was] no testimony that he intended to leave a portion behind." Id. at ___, 158 A.3d at 1094.

The Lawletter Vol 42 No 5

Steven Friedman, Senior Attorney,National Legal Research Group

            The Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671–2680, "was designed primarily to remove the sovereign immunity of the United States from suits in tort and, with certain specific exceptions, to render the Government liable in tort as a private individual would be under like circumstances." Richards v. United States, 369 U.S. 1, 6 (1962). Absent a waiver of immunity, the district courts are deprived of subject-matter jurisdiction for tort claims against the United States. See 28 U.S.C. § 1346(b)(1).

            The FTCA's foreign-country exception provides that there is no waiver of immunity for "[a]ny claim arising in a foreign country." 28 U.S.C. § 2680(k). In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Supreme Court held that the foreign-country exception "bars all claims based on any injury suffered in a foreign country." Id. at 712. Yet the Sosa Court left unanswered the question of how to determine where an injury is "suffered" for purposes of the foreign-country exception. See S.H. ex rel. Holt v. United States, 853 F.3d 1056, 1057–58 (9th Cir. 2017).  

            This question was directly addressed in a recently published decision by a unanimous panel of the Ninth Circuit. See id. at 1060. In S.H., the Holts' daughter was born prematurely while the family was stationed at a United States Air Force ("USAF") base in Spain. See id. at 1058. As a consequence of her premature birth, S.H. sustained a permanent injury to the white matter of her brain but was not diagnosed as suffering from cerebral palsy until after the family had returned to the United States. See id.

The Lawletter Vol 42 No 5

Anne Hemenway, Senior Attorney, National Legal Research Group

            In SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC, 137 S. Ct. 954 (2017), the United States Supreme Court held that the defense of laches is not proper in a patent infringement case when suit is brought within the six-year statute of limitations period for patent infringement cases, set forth in 35 U.S.C. § 286. This decision abrogated decisions in numerous federal circuit courts which allowed the laches defense.

            Under federal law, damages are limited in patent infringement cases by the statute of limitations set forth in § 286 to cover only infringement that occurred within the six-year period prior to the filing of the complaint. This six-year period is counted backward from the filing of the complaint, not forward to the time of the patent infringement event.