Fred Shackelford—Senior Attorney, National Legal Research Group

            When individuals are accused of sexual misconduct on the basis of "recovered memories," courts must sometimes decide whether a therapist can be held liable for eliciting such memories from patients. In Mower v. Baird, 2018 UT 29, 422 P.3d 837 (as corrected July 11, 2018), the plaintiff's ex-wife took the couple's child to a therapist, who suspected child abuse. The therapist contacted authorities and was told to gather more information. Contrary to established guidelines, the therapist continued therapy instead of asking a forensic interviewer to talk to the child. Subsequently, there was a "supported" finding of sexual abuse against the plaintiff.

            The plaintiff sued the therapist for medical malpractice and negligence, but the trial court found that the therapist owed no duty to him. The Mower court examined five factors in deciding whether a duty exists:

Amy Gore—Senior Attorney, National Legal Research Group

            The area of presumed intent in the designation of life insurance policies has long been a source of dispute and litigation. When a state legislature enacts statutes that address an automatic revocation of insurance beneficiary status under particular circumstances, additional litigation is likely to result. Such was the case in Sveen v. Melin, 138 S. Ct. 1815, 1817 (2018). There, a couple were married in 1997 and the following year the named insured designated his wife as the primary beneficiary under his life insurance policy, and his two children from a prior marriage as contingent beneficiaries. The couple divorced in 2007, and the divorce decree never addressed the disposition of the life insurance policy or the rights of the contingent beneficiaries. Upon the named insured's death in 2011, both the wife and the two children made competing claims for the entire proceeds. The children of the named insured relied on Minnesota Statutes § 524.2-804, subd. 1, which provided that divorce revoked the beneficiary designation of any former spouse. The former spouse asserted that the statute, which was not in effect at the time the policy was purchased and the time she was designated as a beneficiary, violated the Contract Clause, U.S. Const. art. 1, § 10, cl. 1. 

Fred Shackelford, Senior Attorney, National Legal Research Group

            In a case of first impression, the Wyoming Supreme Court has adopted the intrusion upon seclusion branch of the common-law tort of invasion of privacy. In Howard v. Aspen Way Enterprises, Inc., 2017 WY 152, 406 P.3d 1271 (Wyo. 2017), the plaintiffs leased computers from a rent-to-own store. They alleged that the store installed software on the computers that allowed the store to track the computers' locations, remotely activate the computers' webcams, and capture screen shots and key strokes. The customers sued the store, alleging claims for the invasion of privacy and breach of the covenant of good faith and fair dealing. The lower courts ruled that Wyoming does not recognize a claim for the intrusion upon seclusion.

Lee Dunham, Senior Attorney, National Legal Research Group

            During the holiday season, many of us open our homes to friends and coworkers and, unfortunately, sometimes a guest is injured or becomes sick on the property. What is the scope of a host's duty to render first aid to the uncle who cuts his hand while carving the turkey, or the New Year's Eve guest who has far too much to drink?

            Courts of most states generally follow the scheme outlined in the Restatement (Second) of Torts as to duty to render aid. The general rule, of course, is that there is no duty to render aid to one who is in peril, even if it would be easy to provide assistance. See Restatement § 314 ("The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action."). But an exception applies when a "special relationship" exists between the parties.

Fred Shackelford, Senior Attorney, National Legal Research Group

            Can a plaintiff motorist's comparative fault be considered in crashworthiness cases based on strict liability or breach of warranty? That was the issue of first impression for the South Carolina Supreme Court in Donze v. General Motors, LLC, 420 S.C. 8, 800 S.E.2d 479 (2017). In Donze, the plaintiff passenger had been smoking synthetic marijuana earlier in the day. He sustained severe burn injuries when the truck in which he was riding burst into flames after colliding with another vehicle at a controlled intersection. The accident occurred because the truck driver failed to stop and pulled directly in front of the other vehicle.

            The plaintiff brought a crashworthiness case against the truck's manufacturer, alleging that the truck's design was defective because the gas tank was placed outside of the truck's frame. Two issues were certified to the Donze court:

1. Does comparative negligence in causing an accident apply in a crashworthiness case when the plaintiff alleges claims of strict liability and breach of warranty and is seeking damages related only to the plaintiff's enhanced injuries?
2. Does South Carolina's public policy bar impaired drivers from recovering damages in a crashworthiness case when the plaintiff alleges claims of strict liability and breach of warranty?

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).

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.

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.

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 Holts filed suit against the United States, contending that officials at a USAF base in California negligently approved the family's request for command-sponsored travel to a base in Spain ill-equipped to deal with Mrs. Holt's medical needs. See id. The district court agreed that the injury occurred in the United States, because the cerebral palsy was only diagnosed in the United States, and ultimately awarded the Holts significant damages. See id. The United States appealed arguing, among other things, that the injury at issue was suffered in Spain and thus barred by the foreign country exception of the FTCA. See id.

The Lawletter Vol 42 No 2

Fred Shackelford, Senior Attorney, National Legal Research Group

      Can a suit against the federal government be maintained even though it would be time-barred under state law? That was the issue in a medical malpractice action arising in Louisiana. In Bagley v. United States, No. 8:16-CV-30, 2016 WL 6082023 (D. Neb. Oct. 18, 2016), the plaintiff underwent surgery at an Air Force base in Louisiana in 1997. Over the next 15 years, he experienced pain in the area of his right groin. In 2013, an x-ray revealed that a metallic object had been left in the plaintiff's body during the 1997 surgery. Within two years after discovering the object, the plaintiff filed an action in Nebraska against the United States under the Federal Tort Claims Act ("FTCA").

     The government moved to dismiss on the ground that the action was time-barred under Louisiana law, where the cause of action arose. Under a Louisiana statute, La. Rev. Stat. Ann. § 9:5628, medical malpractice actions must be filed within one year after the negligent act or omission, or of discovery thereof, but in no event later than three years after the negligent act or omission occurred. Under the FTCA, there is a two-year limitations period, which accrues in medical malpractice actions when the claimant discovers or reasonably should have discovered the alleged malpractice.