The Brief Case: DRI Committee News

From the Governmental Liability Committee (Continued)

Cases of Interest from the U.S. Fifth Circuit

By Joseph S. Trytten

Lefebure v. D'Aquilla, 15 F.4th 650, (5th Cir. Oct. 5, 2021) petition for certiorari pending

The Fifth Circuit recently stood by a nearly-50-year-old Supreme Court Equal Protection decision—despite expressing serious concerns about allowing prosecutors to implement discriminatory policies of not investigating certain crimes when committed by or against certain groups of people.

The plaintiff in this case alleges that her cousin’s husband, a Louisiana state prison warden, brutally and serially raped her while she was living at her cousin’s home. The plaintiff sought to bring criminal charges, and the warden was initially arrested for rape. However, the plaintiff alleges that the warden and his defense attorney conspired with the local district attorney and sheriff to protect the warden from investigation or prosecution.

The plaintiff sued the warden, district attorney, and others, alleging a violation of her rights to equal protection and due process under the Fourteenth Amendment. The defendants sought to dismiss the case for lack of standing. The district court partially granted the motion and certified the order for interlocutory appeal.

The Fifth Circuit affirmed the partial dismissal for lack of standing, relying almost exclusively on the 1973 Supreme Court decision Linda R.S. v. Richard D. (410 U.S. 614). In Linda, a case involving similar facts, the Court held that individuals have no legal interest in how other people are treated by law enforcement. While anyone accused of a crime has an interest in being treated fairly by prosecutors, and victims have an interest in ensuring their own protection from harm, victims do not have a legal right (and therefore have no standing) to see their perpetrators investigated or prosecuted.

The Court emphasized that prosecutorial decisions are generally given wide discretion under the separation of powers doctrine. The Court distinguished between a situation in which a law enforcement entity or prosecutor wrongfully refuses to protect someone from a crime, versus a situation in which the police or prosecutor simply fail to investigate or prosecute a crime that already occurred. In the first situation, the plaintiff has standing because the crime could have been prevented. In the second, the prosecutor’s investigation could not change the fact that the crime occurred. Even in a case such as this—where the plaintiff alleges an unlawful conspiracy to avoid prosecution—the law does not grant a cause of action based on discriminatory non-enforcement of the law.

Nonetheless, the Court expressed grave reservations over the effects of its ruling. It even went so far as to agree with the plaintiff’s general premise: that a prosecutor with a policy of non-prosecution for certain types of crimes against certain types of people “may very well be tantamount to a denial of equal protection.” The Court quoted excerpts of the dissent in Linda with approval, agreeing with many of its arguments—particularly the notion that a policy of non-prosecution can cause future crimes (and thus give standing to future victims) by removing the deterrent of criminal penalties.

Despite these apparent qualms, the Court made it clear that it was bound by Linda—50-year-old precedent that it is—and had no choice but to dismiss the plaintiff’s claims for lack of standing.

In a spirited dissent, Judge James Graves contended that the majority misconstrued the plaintiff’s claims as a “failure to prosecute” when they are more accurately viewed as a “failure to protect”—a type of claim for which the plaintiff would have standing. Adopting many of his arguments from the Linda dissent, Judge Graves maintained that a well-known policy of failing to prosecute domestic violence allegations against law enforcement officers can only serve to make those officers more likely to commit sexual crimes in the community. Because the plaintiff had alleged a longstanding policy of not prosecuting law enforcement for sexual crimes, Judge Graves would have found that the plaintiff had pled causation and therefore had standing.

Associate Joseph Trytten works in Mouledoux, Bland, Legrand & Brackett’s general casualty group, and practices in the areas of insurance defense and maritime litigation. He also practices municipal law and was included in New Orleans Magazine 2021 Top Lawyers for this practice area.

Cases of Interest from the U.S. Sixth Circuit

By Dale Conder

DeCrane v. Eckart, 12 F.4^th 586 (6^th Cir. 2021)

When Cleveland, Ohio, needed a new fire chief, McGinnis, DeCrane, the department’s training director, applied, too. The mayor’s choice surprised DeCrane because McGinnis was behind on his training hours. Someone, not DeCrane, leaked this to the media, and McGinnis resigned. Although DeCrane kept his job, he alleged that he suffered retaliation in not receiving promotions, having his work undermined, etc. The Sixth Circuit affirmed the district court’s denial of Eckart’s qualified-immunity-based summary judgment. The Sixth Circuit held that if DeCrane had tipped off the media, he would have done so as a private citizen.

Barrera v. City of Mount Pleasant, 12 F.4^th 617 (6^th Cir. 2021)

Sergeant Murch saw a car he had stopped on two different occasions. Each stop resulted in charges for drug-related crimes. Murch ran the plates, discovering the owner did not have a driver’s license. After the car sped away, Murch stopped it. He asked the three individuals for identification; two of the three complied. Because the third person refused to identify himself, Murch arrested him for violating a state statute requiring identification. A strip search at the jail led to the discovery of drugs. After Barrera got out of prison, he sued the city and Murch. The Sixth Circuit affirmed the grant of qualified immunity to Murch because he had probable cause to arrest Barrera for violating the state law.

Smith v. City of Toledo, 13 F.4^th 508 (6^th Cir. 2021)

Smith attended the fire academy to fulfill his dream of being a firefighter. Smith was unable to complete the vertical-ventilation test. After further instruction, Smith tested two more times, failing each time. No trainee before was allowed to test more than three times. In an effort to diversify the department, the academy provided individual instruction and allowed him to test two more times. But the result was the same. When the academy discharged him, he sued for violations of Title VII and conspiracy to violate his civil rights. The Sixth Circuit affirmed summary judgment for all defendants.

Gerber v. Herskovitz, 14 F.4th 500 (6^th Cir. 2021)

For years, when Saturday came, a group of protesters picketed Ann Arbor’s Beth Israel Synagogue. The protesters oppose the State of Israel and its conduct. When the city refused to enforce its sign ordinance, the congregants sued the city and the protesters. The allegations were violations of the Religious Freedom Restoration Act, Religious Land Use and Institutionalized Persons Act, substantive due process, and the First Amendment. The Sixth Circuit affirmed dismissal because the First Amendment protects such protests.

Phillips v. Tangilag, 14 F.4^th 524 (6^th Cir. 2021)

Following a fight with his cellmate, Phillips believed he had sprained his ankle. After the pain and discoloration went away, Phillips complained of a lump in his leg and pain. The doctor ordered various tests to confirm the lump was not cancerous. The tests showed this was a benign lump. Phillips saw a private orthopedic surgeon who agreed. Phillips sued alleging the prison was inflicting cruel and unusual punishment on him. Because surgery is not the standard of care for a benign lump, the Sixth Circuit affirmed dismissal.

Brawner v. Scott County, 14 F.4th 585 (6th Cir.), petition for en banc review denied, 18 F.4th 551 (6th Cir. 2021).

In this case, a three-judge panel held that the Supreme Court’s holding in Kingsley v. Hendrickson applied not only to pre-trial detainees’ excessive-force claims, but to pre-trial detainees’ deliberate-indifference claims, too. The Sixth Circuit denied the petition for en banc review. The Sixth Circuit joins the Second, Seventh, and Ninth Circuits in applying Kingsley to deliberate -indifference claims.

Golf Village North, LLC v. City of Powell, 14 F.4^th 611 (6^th Cir. 2021)

Golf Village operates a planned-community development that sits on 11 acres. There are two commercial lots to which access is limited. Golf Village gave one of the lots to the city for a public park. This resulted in increased traffic around Golf Village’s development. The Sixth Circuit held that this was not a taking. Golf Village could build a gate at the entrance to its private street to ensure admission of invited guests only. The increased traffic outside of Golf Village’s development was a government activity outside of the development that had minimal effects within. Therefore, the Sixth Circuit held there was no taking.

Dahl v. Board of Trustees of Western Michigan University, 15 F.4^th 728 (6^th Cir. 2021)

The university requires COVID-19 vaccinations for its student-athletes. The university considers exemptions for medical or religious reasons on a discretionary basis. A group of students sued because the university ignored or denied their requests, thus barring them from participation. The district court stayed enforcement of the vaccination requirement. The Sixth Circuit declined to stay the injunction or proceedings in the district court pending appeal. The Sixth Circuit concluded that the free-exercise claim would likely prevail. The university did not penalize non-student-athletes who refused the vaccine based on religious reasons but it denied student-athletes the ability to participate in their sports when they exercised their sincerely held religious beliefs. Applying strict scrutiny, the Sixth Circuit held that the university did not show a compelling interest in denying the student-athletes their free-exercise rights or that it narrowly tailored its conduct to achieve that interest.

Crawford v. Tilley, 15 F.4^th 752 (6^th Cir. 2021)

Marc Crawford died at a Kentucky prison about one month after his arrest. His widow sued government employees and private companies for violating Marc’s Eighth Amendment rights. Included among the defendants was James Erwin, the Acting Commissioner for the Department of Corrections. Plaintiff believed Erwin was liable under a failure-to-supervise theory. The district court denied Erwin qualified immunity. On appeal, the Sixth Circuit reversed because the complaint did not allege active unconstitutional behavior by Erwin or how his actions caused Marc’s injuries.

Ackerman v. Washington, 16 F.4th 170 (6^th Cir. 2021)

In 2013, the Michigan Department of Corrections decided to stop allowing religious organizations to provide Kosher food items to inmates whose sincerely held religious beliefs required that they eat Kosher meat and one dairy product on certain holy days. Instead, everyone on a special diet for religious reasons would receive a vegan diet. The Sixth Circuit affirmed the district court’s judgment in favor of the prisoners. The MDOC policy completely prohibited exercise of this religious practice. The Sixth Circuit also pointed out that inmates’ failure to purchase these items at commissary did not undermine the sincerity of their religious beliefs.

F.P. Development LLC v. Charter Township of Canton, 16 F.4^th 198 (6^th Cir. 2021)

Canton passed an ordinance requiring permits for cutting down and removing certain trees. And once removed, the landowner had to replace the trees on its land or on someone else’s land. F.P. Development cut down trees on its property without getting a permit. The city investigated and sent F.P. a bill. F.P. sent the city a summons and complaint. The Sixth Circuit held that the ordinance was unconstitutional as a regulatory taking and an unconstitutional condition.

Sexton v. Cernuto, 18 F.4^th 177 (6^th Cir. 2021)

Sexton reported to the city to begin her five days with the work-release program. Cernuto and Dunn were supervisors. Against policy, Cernuto required that Sexton ride with Dunn. Dunn sexually assaulted Sexton. Dunn told Sexton that he and Cernuto did not tell on each other. Sexton reported the assaults to the Michigan State Police. After the criminal proceedings, Sexton sued, among others, Cernuto. Cernuto moved for summary judgment based on qualified immunity. The Sixth Circuit affirmed the district court. There were genuine issues of fact as to whether the limitations placed on Sexton’s movement created a special relationship creating a duty for Cernuto to protect her. Also, there was a genuine issue as to whether Cernuto facilitated the constitutional violation.

Browning v. Edmonson County, 18 F.4^th 516 (6^th Cir. 2021)

An attempt to make a traffic stop led to a high-speed pursuit. The car’s occupants were seen throwing items from the car. During the pursuit, a deputy reported finding ammunition where the objects had been thrown from the car. The driver made an abrupt turn, crashing into another car. Deputy Jones ordered one of the occupants to show his hands. The occupant did not comply because he was unconscious. The district court denied Jones qualified immunity and on interlocutory appeal the Sixth Circuit affirmed.

Hale v. Boyle County, 18 F.4^th 845 (6^th Cir. 2021)

Hale was being held in the Marion County jail ahead of her trial. Boyle County transported Hale between the counties when she had court appearances. During these trips Hale and Court Security Officer engaged in sexual acts. Pennington also provided Hale with special treatment, for example, allowing her to smoke, have snacks, etc. After Hale gave birth to her and Pennington’s child, she sued Pennington and others. The district court held that Hale’s consensual sex with Pennington deprived her of any constitutional claims. The Sixth Circuit reversed and held that the claim should be evaluated as excessive force. Based on Hale’s version, there were disputed issues of fact as to whether coercion was involved.

Elhady v. Six Unidentified CBP Agents, 18 F.4^th 880(6^th Cir. 2021)

On Elhady’s return to the U.S. from Canada, the border patrol held him in a room after taking his shoes, shirt, and pants. The room continued to get colder. After four hours, the agents let him leave. They called him an ambulance when he said he was too ill to drive. He filed a Bivens action against the Border Patrol agents. The Sixth Circuit reversed the district court’s finding that Elhady had stated a Bivens action. The Court rejected the district court’s attempt to extend Bivens to new actions.

Gordon v. Bierenga, 20 F.4^th 1077 (6^th Cir. 2021)

Bierenga attempted a traffic stop, but Gordon continued for several blocks. Eventually, Bierenga saw Gordon in the White Castle drive thru. Bierenga pulled his car in front of Gordon’s car and approached with his weapon drawn. Gordon began backing into the car behind him and hitting Bierenga’s car until he could get his car out. When he turned his wheels away from Bierenga, Bierenga fired four shots. The district court denied qualified immunity. The Sixth Circuit reversed, holding that the cases cited by Gordon lacked sufficient similarity to Bierenga’s situation to clearly establish that Bierenga had violated Gordon’s constitutional rights.

Greene v. Crawford County, 22 F.4^th 593 (6^th Cir. 2022)

After being booked into Crawford County’s jail, Greene began exhibiting signs of delirium tremens. The Sixth Circuit recognizes this as an objectively serious medical condition. County officials did not get Greene any medical help. The Sixth Circuit affirmed the district court’s denial of qualified immunity.

Wood v. Eubanks, 25 F.4^th 414 (6^th Cir. 2022)

Mr. Wood went to the fair wearing a shirt with the offending message printed on it. The deputies arrested him for wearing this shirt. As they were escorting him from the fairgrounds, he used his limited vocabulary to express his dislike of the fairgrounds administrator. The deputies then arrested him for disorderly conduct. The district court judge granted defendants’ summary judgment. The Sixth Circuit, however, reversed because the First Amendment protects even Mr. Wood.

Palma v. Johns, 27 F.4^th 419 (6^th Cir. 2022)

Deputy Johns went to the Palmas’ house in response to a domestic violence call. Johns knew the family was having a dispute over the T.V., and he knew that Palma had mental problems. Palma began approaching Johns, did not speak, and did not obey Johns’s commands. Johns used his taser twice, but to no avail. Johns continued to retreat and Palma continued to advance. Ultimately, Johns killed Palma. The Sixth Circuit reversed the district court’s grant of qualified immunity. The Court held there were sufficient facts for a jury to conclude that Johns used excessive force.

Wamer v. Univ. of Toledo, 27 F.4^th 461 (6^th Cir. 2022)

This is a Title IX case involving teacher-student harassment. The panel held that the “the standards for deliberate indifference to student-on-student harassment” set out in Kollaritsch v. Michigan State University Board of Trustees, 944 F.3d 613 (6th Cir. 2019), do not apply to teacher-student sexual harassment.

In teacher-student harassment the plaintiff must allege that “(1) she was sexually harassed by a teacher or professor, (2) an official with authority to take corrective action had actual notice of the harassment, (3) the school’s response was clearly unreasonable, and (4) the school’s deliberate indifference caused her to suffer discrimination.”

To satisfy the causation requirement the plaintiff must show “that (1) following the school’s unreasonable response (2) (a) the plaintiff experienced an additional instance of harassment or (b) an objectively reasonable fear of further harassment caused the plaintiff to take specific reasonable actions to avoid harassment, which deprived the plaintiff of the educational opportunities available to other students.”

Moser v. Etowah Police Department, ___ F.4^th ____, 2022 WL 619830 (6^th Cir. 2022)

A mother arrived at a neighbor’s house to get her daughter who she thought had run away. Before understanding the circumstances, the mother put her hand on one of the officers. This prompted another officer to take the mother to the ground and kneel on her for about 23 seconds. The mother sustained injuries and sued the officer and his employer. The Sixth Circuit reversed the lower court’s order granting summary judgment. The mother had a clearly established right to be free from injury-threatening force when not actively resisting arrest. The mother’s touching of the officer’s arm was not sufficient to constitute resisting arrest.

Hyman v. Lewis, ___ F.4^th ____, 2022 WL 682543 (6^th Cir. 2022)

When Lipford entered the Detroit Detention Center, he denied having drugs and a search did not reveal any drugs. Lipford was put in a room where he could be seen. At some point he fell asleep and then slid onto the floor. Once the officers found him unresponsive, they took him to the hospital. At the hospital, the staff found cocaine, heroin, and fentanyl concealed in Lipford’s rectum. The drugs that leaked out, caused his death. The Sixth Circuit held that a reasonable officer in Lewis’s position would not have known that Lipford had drugs in his rectum. Lewis’s failure to follow internal policy was not sufficient to establish deliberate indifference.

Dale Conder is a member of the law firm Rainey, Kizer, Reviere & Bell, P.L.C., with offices in Memphis and Jackson, Tennessee. Mr. Conder is a resident in the firm’s Jackson, Tennessee office. He practices in the areas of general insurance defense, employment law, and defense of municipalities and their employees, particularly police officers in § 1983 litigation. Mr. Conder has published and lectured in the areas of trial practice, civil procedure and civil rights litigation. He is a member of DRI and the Tennessee Defense Lawyers Association.

Cases of Interest from the U.S. Eighth Circuit

By Rebecca Mann

Baude v. Leshock, 23 F.4th 1065 (8th Cir. 2022).

Police Officers were not entitled to qualified immunity for arrests that resulted from protests and unrest that occurred after Officer Jason Stockley was acquitted of the murder of Anthony Lamar Smith on September 15, 2017. Officers formed perimeter lines and surrounded and squeezed protesters, observers, press members, and business patrons into a confined space. Plaintiff’s request to leave the confined area was denied and he was pepper sprayed, zip tied, and arrested. Officers were denied qualified immunity on claims for illegal seizure and excessive force.

Mitchell v. Kirchmeier,-- F.4th --, 2022 WL 759938 (8th Cir. Mar. 14, 2022).

Plaintiff sued various law enforcement arising out of an alleged peaceful protest of an oil pipeline in North Dakota. Plaintiff was part of nearly 200 people who gathered on a bridge that was closed to vehicle traffic in the middle of the night. After a countdown, several officers fired lead-filled bean bags from their shotguns and Plaintiff was injured. He was arrested and charged with criminal trespass and obstruction of a government function but entered into a pretrial diversion agreement. Ultimately, the charges were dismissed. The constitutional claims were not barred by Heck v. Humphrey, 512 U.S. 477 (1994) because he was never convicted, and therefore never sentenced, on any charges. Officers were not entitled to qualified immunity on the excessive force claim because the 8th circuit has held time and again that, if a person is not suspected of a serious crime, is not threatening anyone, and is neither fleeing nor resisting arrest, then it is unreasonable for an officer to use more than de minimis force against him.

Williams v. City of Burlington, Iowa,-- F. 4th --, 2022 WL 696972 (8th Cir. Mar. 9, 2022).

Officers were denied qualified immunity for using deadly force after they shot and killed a fleeing suspect. The decedent was stopped for playing music too loudly while driving in a residential neighborhood. He then got out of his car and ran from the traffic stop. Officers pursued and tackled him in the street. One officer saw the decedent had a gun and retreated. The decedent continued running. The other officer yelled for him to drop the gun and then fired seven shots, killing him. The court cited Tennessee v. Garner, 471 U.S. 1 (1985) for the long-established principle that the use of deadly force against a fleeing suspect who does not pose a significant threat of death or serious physical injury to the officers or others is not permitted.

De Rossitte v. Correct Care Solutions, LLC.22 F.4th 796, 803 (8th Cir. 2022).

An inmate’s claim that jail medical staff were deliberately indifferent to his hearing needs survived summary judgment when there was a question of fact as to whether jail medical staff left him without functioning hearing aids. Hearing loss is objectively serious when a physician has diagnosed the inmate with sensorial hearing loss requiring bilateral hearing aids. A jury could determine medical staff were deliberately indifferent to his hearing needs when they “frequently” left him without replacement hearing aid batteries causing his hearing aids to be “non-functional for days or weeks,” resulting in a cumulative total of over three months without functioning hearing aids. Repeated delays in providing batteries would have severely limited the inmate’s basic human need to hear, detrimentally impacting his ability to function and putting him at risk of harm.

Rebecca Mann is a partner at Gunderson Palmer Nelson Ashmore LLP, licensed to practice in South Dakota, North Dakota, and Montana. She specializes in Workers’ Compensation, Insurance Defense, and Civil Rights/Governmental Tort Liability. Rebecca routinely practices in both state and federal courts as well as administrative tribunals.

Cases of Interest from the U.S. 11th Circuit

By Michael D. Strasavich

Lakoskey v. Floro, No. 19-12401, 2021 WL 5860460 (11th Cir. Dec. 10, 2021)

Plaintiff’s seventeen-year-old daughter, Tina, was murdered in 1984. Tina’s body was discovered and transferred to the medical examiner to determine the manner and cause of death. Plaintiff authorized the medical examiner, on conclusion of his duties, to deliver the remains to a funeral home. Some of Tina’s remains were delivered, but the medical examiner retained the rest. Over the next three decades, the remains were passed from the medical examiner to two state universities before ultimately coming back to a new medical examiner, who advised Plaintiff that the office still had some of Tina’s remains. Thirty-three years after Tina’s first funeral, her last remains were released to a funeral home, her grave was dug up, her casket opened, and her last remains were joined with the prior ones and reburied.

Despite these horrific facts, Plaintiff’s federal procedural due process claims under Section 1983 against medical examiners and certain university employees were dismissed for failure to state a claim, a ruling affirmed by the 11th Circuit. The Court held that state law provided a constitutionally adequate process to remedy the deprivation of her property interest in her daughter’s remains; thus, a required element of the procedural due process claim was lacking. “Only when the state refuses to provide a process sufficient to remedy the procedural deprivation does a constitutional violation actionable under section 1983 arise.” Lakoskey at *3. Plaintiff still had pending state law tort claims for outrageous infliction of emotional distress against the same defendants, a cause of action Florida recognizes under these facts. Even an intentional deprivation of property by a state employee does not violate procedural due process if a meaningful post-deprivation remedy for the loss is available. This avoids turning “the Fourteenth Amendment [into] a font of tort law to be superimposed upon whatever systems may already be administered by the [s]tates.” Lakoskey at *7 quoting Paul v. Davis, 424 U.S. 693, 701 (1976).

McClendon v. Long, 22 F.4th 1330 (11th Cir, 2022)

Registered sex offenders sued alleging a First Amendment violation when sheriff’s deputies placed No Trick-Or-Treating signs at their homes just before Halloween. This was done county-wide with no individualized consideration of potential recidivism. The district court denied injunctive relief, but the 11th Circuit found that the signs were compelled government speech and that their placement violated the homeowner’s First Amendment rights. The 11th Circuit determined that the forced display of a government message on private property violates the right to refrain from speaking at all; therefore, the policy was subject to strict scrutiny review. While the interest in protecting children is compelling, the yard signs were found not to be narrowly tailored to that goal. The ruling of the district court was reversed with instructions to enter a permanent injunction in favor of the Plaintiff homeowner.  

T.R., by and through Brock v. Lamar County Board of Education, 25 F.4th 877 (11th Cir, 2022)

The minor Plaintiff T.R., a high school student, complained of a strip search (heavily disputed) that she was subjected to following the smell of marijuana in the hall at the high school. Two students informed the principal that they saw T.R. light a marijuana cigarette in class. T.R. admitted regularly smoking marijuana but denied smoking it that day. While the district court found the school officials were protected by qualified immunity, the 11th Circuit found that their actions violated clearly established law relative to such searches. To justify a strip search, any one of three scenarios could be present: 1) evidence of students generally hiding contraband in their underwear, 2) other students suggesting a particular student is doing so, and 3) an earlier search that yielded this result. None was present here. The 11th Circuit also reinstated claims based on the state law tort of outrage, determining that school officials were not entitled to state-agent immunity.

Powell v. Snook, 25 F.4th 912 (11th Cir. 2022)

The district court granted summary judgment to an officer based on qualified immunity where an officer fatally shot an innocent but armed homeowner on his own property. The officer responded to a 911 call reporting gunshots and a woman’s scream at an imprecise neighboring home “a few houses down.” The call center noted the address as either 690 or 634 Swan Lake. The shooting involving the officer later occurred at 690 Swan Lake. Because the officers were approaching at night a darkened home on a suspected domestic violence incident where gunshots and a woman’s scream were reported, they approached cautiously with no lights or sirens, and one officer bore a rifle. The homeowners awoke to their dogs barking, and the husband thought he saw someone outside, put on his pants, and got his pistol. He opened the garage door and walked out with the loaded pistol held pointing down. The homeowner stopped and turned to face the front door, where the officer was positioned, and started to raise the pistol, getting it hip-high. The officer dropped to one knee and fired three shots within the course of about one second, striking the homeowner.

After citing “doctrinal gospel” of not viewing the officer’s actions with 20/20 hindsight but making allowance for tense, uncertain, and rapidly evolving situations, the Court analyzed the three Garner factors, especially the element of a warning. The Court rejected requiring a warning to a suspect as a rigid and inflexible precondition to firing, especially where a suspect is armed. Here, considering all of the surrounding facts and circumstances, no such warning was required and there was no materially similar case requiring one. Further, there was no obvious, clear precedent that firing without a warning was a violation of constitutional rights, as the Court found that instead of clearly establishing the law against the officer, binding precedent clearly established the law in the officer’s favor. The grant of summary judgment was affirmed.

Michael D. Strasavich practices with the Mobile, Alabama law firm of Burr & Forman LLP. He represents companies in insurance defense, insurance coverage, ERISA, products, real estate, and bankruptcy litigation. He is a member of DRI and the Alabama Defense Lawyers Association.

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Product Liability: An Update from the PLC

Defending “Serial Litigation”: How to Develop and Implement a Plan to Coordinate Legal Strategy and Minimize Legal Spend

 By Eric L. Probst, Esq., and Diane F. Averell, Esq.

Corporate defendants litigating and trying (maybe) multiple lawsuits across multiple jurisdictions require a cohesive and streamlined defense plan that maximizes internal and external resources while simultaneously controlling legal spend. Many challenges exist when defending these suits, and some are venue-specific. They range from defining the company’s approach, identifying key (and potentially harmful) documents and persons with knowledge, selecting trial counsel, and creating a legal budget that includes a settlement matrix to resolve cases to limit exposure. Not an easy task. However, a cohesive and centralized defense plan allows companies to nimbly respond to a lawsuit filed in a venue that the company has not defended a lawsuit in before, and educate, quickly, defense counsel hired to defend it in that venue. Moreover, the plan defines the defense mission statement and company story to permit the company to consistently respond to serial lawsuits, to control outside counsel spend, and to move cases more efficiently to resolution.

Preliminary Considerations

Some preliminary issues must be considered. The most basic: is a company-wide defense plan required, meaning, is a cohesive defense strategy needed so significant legal spend should be committed to hiring outside counsel and occupying legal function resources to develop the plan. Multiple factors must be weighed: how many claims is the company aware of, how many lawsuits have been filed, what business units are involved, venue, existence of “bad documents,” similar industry lawsuits, plaintiffs’ law firms involved, and government regulatory or recall issues at play. If multiple claims or lawsuits have been filed by top plaintiffs’ firms, in judicial hell holes, with company documents recognizing a defect identified in a recall or deviating from industry/government standards and competitors are battling similar lawsuits in similar venues, then a defense plan is needed.

Leadership buy-in is essential. Corporate leadership should understand why a coordinated defense is needed, the impact serial litigation has on the company and the industry, and the future impact on both caused by adverse publicity, precedent, and jury verdicts. With approval secured, the legal function should assign a quarterback to develop the budget, identify internal resources, and hire and manage outside counsel members of the defense team. The quarterback needs to retain outside counsel with the skills sets to fit the needs of the defense plan project. If multiple outside firms participate, the quarterback should match assignments to the outside law firm’s strengths; for example, a firm with a dedicated electronically stored information practice should collect, review, and store company documents. A firm with significant trial experience can develop corporate witnesses for deposition and trial. Discrete roles with required periodic review allows the legal function to closely monitor and handle outside counsel’s legal activities and lower legal spend. Further, the in-house legal function needs outside legal “partners,” not just lawyers and law firms. These partners need to have and demonstrate the same passion for the company that the company’s employees do, understand its culture and vision, and commit to providing cost-efficient service.

Purpose and Structure of the Defense Plan

The defense plan is a consistently-applied defense strategy across all business units, venues, forums, and injury types, so trial and local counsel understand the technical aspects of the company’s design and manufacture of a product, sales strategies, marketing philosophies, and can evaluate, from notice of the claim forward, whether to settle, litigate, or try cases. Industry agnostic, a defense plan equally applies to manufacturing, pharmaceutical, software, retail, transportation, construction, food, and professional service companies, among others. The end product, a Defense Plan Playbook, is a defense blueprint for local counsel to defend the lawsuits and describes the company, its philosophy and culture, its products, how they are manufactured, designed, sold, etc. The Playbook will contain the universe of information trial teams will need to defend the cases. A “trial in a box,” the Playbook can be delivered across the nation to trial teams, saving considerable legal spend with every use.

Developing and Implementing the Company Story

The “Company Story” is the trial defense theme—how will the company tell the jury why its product is not defective, its sales force did not commit fraud, its executives did not hide material information from investors, etc. The process to develop the defense theme is multi-phased:

a) Locating and identifying corporate documents and corporate witnesses
Company documents and witnesses tell the company story. The budgeted legal spend for collecting documents can be significant and depends on the sophistication of the client’s document-retention procedures. If corporate document archaeology is required, the company might have to budget to hire a document-review company to assist with locating, reviewing, and cataloguing the documents.

b) Preparing the corporate representative
Multiple corporate representatives should be identified and prepared for deposition. For companies with multiple business units, business unit specific witnesses are required. Strict budgeting is required to manage the legal spend associated with developing corporate witnesses for deposition. Zoom now facilitates this process but cannot replace in-person witness mock deposition preparation. While identifying and prepping the witness is labor-intensive, the early work pays off because less deposition prep is required for future cases, lowering legal spend.

c) Identifying and retaining a stable of experts
The defense plan should include developing a stable of multi-disciplinary experts to address plaintiffs’ legal theories. Business unit leaders and employees have insight into industry experts to retain who typically have more credibility with jurors than experts employed by forensic firms. To manage legal spend, the in-house legal function should require the outside teams to use non-billing personnel or paralegals to coordinate collecting CVs, arranging telephone conference calls, and managing other more administrative tasks. Further, the legal function can reduce outside legal spend by centralizing this task with one to two lawyers.

d) Telling the story through written (and then oral) discovery
The company story is not saved for mediation or trial. The developed story should leap off the pages of interrogatories, by challenging product identification, that a defect exists, that the product conformed with industry standards, that the shares of stock were not devalued, etc. The theme should be incorporated into individual interrogatory responses where appropriate. For example, in a product liability lawsuit, the individual responses should challenge product identification and defect, and they should assert that the product complies with industry and government standards. At the corporate representative’s deposition, the witness, as the mouthpiece for the company story, should pivot away from challenging company documents and questions to the company story.

Settle or Try?

The defense project must examine the forest—what is the scope of the litigation the company faces—and the trees—where are the documents located, who is the corporate representative, etc. Several critical components should be addressed with corporate leadership when analyzing the risk the company faces:

a) Insurance
What level and layers of primary and excess insurance are available to cover potential settlements and jury verdicts, when do policy periods expire, have insurance carriers been placed on notice of claims? If most of these questions are unanswerable, the defense project should include an insurance archaeology with an insurance consultant to create or re-construct the company’s insurance program.

b) Modeling
The defense project should analyze the jurisdictions and venues where the company and other industry members are sued. Modeling based on historical settlements and verdicts will help the legal function forecast potential exposure and the exhaustion of policy limits available to cover future settlements and verdicts. The modeling should include the potential number of expected claims. This modeling is most relevant to latent-exposure claims and can assist the company to forecast the years internal and external resources must be budgeted to defend these claims.

c) Analysis of Potential Exposure
An effective defense plan analyses the strengths and weaknesses of the company’s story. Troubling documents and witnesses need to be identified and evaluated. Can the defense team develop a strategy to prevent the discovery of the document or witness? Is an alternate explanation to a problematic document or regulatory finding available? And how will these documents and witnesses ultimately play in front of a jury? Conducting a mock trial or retaining a jury consultant are smart moves to weigh the future negative impact these documents and witness will have across the multiple lawsuits the company faces. A defense project is incomplete if the defense team fails to consider and evaluate the material legal risk facing the company and propose solutions to address and mitigate it.

Conclusion

Serial litigation presents corporate defendants with multiple challenges. To address and eventually overcome them, a game plan is needed. This game plan starts with the internal legal function and its chosen outside legal partners developing the company's trial story through investigating company documents, interviewing key stakeholders, and securing leadership buy-in. The start of the plan preparation must have the finish line in sight—settlement or trial. Significant legal spend is inevitable, but it can be controlled with defined tasks, pathways, and responsibilities. Litigation spend spirals out of control when the company lacks a cohesive approach or quarterback to hold the defense project team to task with deadlines and to budget. An outlined project with identified targets and monetary spend will eliminate unnecessary legal spend and place the company in the best position when the trial lawyer opens to the jury.

Eric L. Probst, Esq., of Porzio Bromberg & Newman PC has served as national coordinating litigation counsel for a publicly-traded commercial-transportation industry manufacturer and as outside general counsel for a national luxury-item construction company. Knowing how litigation impacts businesses’ “bottom lines” and reputations, Eric counsels his clients on the critical decisions to file, defend, or resolve a claim.

Diane F. Averell, Esq., of Porzio Bromberg & Newman PC is a member of the firm's Management Committee. Diane strives to serve the best interests of her clients by understanding their specific business, vision, and strategic goals. She works to understand the business environment behind the case in order to define what will constitute a “win” for her clients. Armed with this insight, Diane is a fearless advocate and works tirelessly to defend her clients while respecting their business objectives.

Product Liability in Canada

By Ashley Paterson and Nina Butz

As the U.S.’ largest export market and closest neighbor and ally, Canada is unsurprisingly where many U.S. manufacturers sell their products, or, increasingly, manufacture them, for both North American and global sales. As a result, it is also no surprise that many U.S. manufacturers and distributors find themselves facing product liability litigation in Canada, some of it “copycat” litigation by entrepreneurial Canadian lawyers seeking to exploit the benefits of already-filed U.S. cases.

This article is intended to help U.S. defense attorneys and in-house counsel navigate the unique challenges associated with litigating product liability cases in Canada, including: (1) the legal regime; (2) causes of action; (3) the standard of proof for causation; (4) specific defenses; (5) available damages; and (6) general procedure and disclosure obligations.

The Legal Regime in Canada

Product regulation in Canada falls within the jurisdiction of both Canada’s federal and 13 provincial and territorial governments. The aviation, automotive, drug and medical device, food and consumer products industries are all federally regulated. For example, the sale of pharmaceuticals and medical devices is regulated by Health Canada (which performs the same or similar role to the HHS and FDA) under the Food and Drug Act RSC, 1985, c F-27 and related legislation, including the Medical Devices Regulations. SOR/98-282 Provincial legislation and regulation relates mainly to the sale of goods, construction, buildings, and consumer transaction agreements.

Product liability is governed by common law principles in all provinces except Québec, where it is governed by civil law under the Civil Code of Québec, CQLR c CCQ-1991 and in some cases, the Québec Consumer Protection Act. CQLR c P-40.1. The law on product liability is reasonably uniform in Canada’s 12 common law jurisdictions.

Causes of Action

Product liability claims are normally framed as actions in tort in the common law provinces (or in Québec, extra-contractual liability, which is like tort liability), though they are often also framed as claims in contract and breach of consumer protection statutes. Typical tort claims include negligent design, negligent manufacture, and breach of a duty to warn. In O’Brien v Bard Canada Inc., 2015 ONSC 2470, Justice Perell of the Ontario Superior Court discusses a fourth established category of product liability claims: “a pure economic loss claim in negligence, because manufacturers have a duty of care to compensate consumers for the cost of repairing a dangerous product that presents a real and substantial danger to the public.”  The most common claim based in contract is breach of warranty.

At common law, product liability claims are assessed against a negligence standard rather than a strict liability standard. Phillips et al v Ford Motor Co. of Canada Ltd. et al, [1971] 2 OR 637 (ON CA) at p. 653. To succeed in a claim for negligence, the onus of proof is on the plaintiff to establish:

• the defendant owed the plaintiff a duty of care;
• the defendant’s behavior breached that standard of care;
• the plaintiff sustained damages that were reasonably foreseeable; and
• the damage was caused, in fact and in law, by the defendant’s breach. Burr v Tecumseh, 2022 ONSC 412 [Burr] at ¶169, 171, citing Mustapha v Culligan of Canada Ltd., 2008 SCC 27 at ¶3, 14.

Depending on the facts and allegations, negligence may be alleged against any party in the distribution chain of a product (e.g., where the alleged defect concerns a component part of a product, manufacturers are typically named as defendants). Burr at ¶173, citing Farro v Nutone Electrical Ltd., (1990) 72 OR (2d) 637 (ON CA) [Farro] at p. 271. The standard of care is the use of reasonable care in the circumstances. Burr at ¶173, citing Farro at p. 271. Relevant factors include the defendant’s position in the distribution chain (e.g., manufacturers will have a different duty than retailers).

Manufacturers have a duty of care to avoid safety risks and make products that are reasonably safe for their intended purposes. Burr at ¶174. To prove negligent design, the plaintiff must identify a design defect, establish that the defect created a substantial likelihood of harm, and establish that an alternative design exists that is both safer and economically feasible to manufacture. Burr at ¶175. Industry standards can be relevant in determining whether a particular product is “reasonably safe.” Burr at ¶176. In considering whether a design is negligent because of alleged safety defects, the court will undertake a risk-utility analysis, weighing the risks of the design against the benefits that the product offers. Burr at ¶177. This analysis will also consider the ease, cost, risk and loss of utility of any other available proposed safer design. Burr at ¶177. This risk-utility analysis is measured at a point in time without the benefit of hindsight and is continuing (i.e., updated information will require amendments to warnings and other information provided about the product). Burr at ¶180.

In contractual cases for breach of warranty, the plaintiff must first establish a contractual relationship with the defendant. Arora v Whirlpool Canada LP, 2013 ONCA 657 [Arora] at ¶28. A contractual relationship can arise either through express warranties provided by the defendant or through the warranties implied by provincial sale of goods legislation. Express warranties can flow from formal agreements between the parties or from pre-printed warranties provided by manufacturers, distributors and retailers to customers during sale. Arora at ¶17-27.

Once the warranty and defect are established, the defendant is essentially strictly liable (i.e., the plaintiff does not have to show the defect resulted from the defendant’s negligence). Crozier v A & P et al, 2010 ONSC 4992 at ¶22. As a result, breach of contract and breach of warranty, while typically available against fewer classes of defendants than causes of action based on negligence, are usually much easier cases to prove.

The Standard of Proof for Causation

In Canada’s common law provinces, the standard of proof for causation is the “but for” test. Under the “but for” test, a plaintiff must establish, on a balance of probabilities, that the plaintiff would not have suffered damages “but for” the defendant’s breach of its duty of care. Resurfice Corp. v Hanke, 2007 SCC 7at ¶21-22.

Specific Defenses

The defenses available to manufacturers of products sold in Canada include:

• expiry of the relevant limitation period;
• failure to prove the elements of the alleged cause of action;
• product misuse or alteration;
• voluntary assumption of risk;
• contributory negligence;
• intervening act; and
• no safer alternative design.

A defendant manufacturer may also rely on the “learned intermediary” defense to satisfy its informational duty when facing a failure to warn claim in the pharmaceutical or medical device context (i.e., the warning was adequate for and directed to the trained professional who dispensed the product to their patient). All the same, the learned intermediary rule applies only to cases involving a product that is highly technical and intended to only be used under the supervision of experts. Hollis v Dow Corning Corp., [1995] 4 SCR 634 (SCC)at ¶27-29.

That a manufacturer or other party in the distribution chain is not incorporated in Canada or does not conduct business in Canada will not prevent Canadian common law courts from assuming jurisdiction over such a party. Canadian courts generally accept the concept that when a manufacturer releases its product into the normal channels of trade, the court of the province where the manufacturer knew (or could have reasonably foreseen) that its product would be bought, used or consumed may have a right to take jurisdiction over a claim for damages suffered in that jurisdiction as a result of an alleged defect in the product. Moran v Pyle National (Canada) Ltd., [1973] SCJ No 149 (SCC) at ¶28.

Limitation Period
Limitation periods in Canada are created by provincial statute, and the time for commencing actions varies from province to province. Limitation periods relevant to product liability claims typically range from two to six years, but two is most common. See for example Ontario’s Limitations Act, 2002, SO 2002, c 24, Sch B [Limitations Act], s. 4.

Limitation periods begin when the act giving rise to the claim occurred and may be extended to when the plaintiff’s claim became reasonably discoverable (i.e., when the plaintiff knew or ought to have known of their claim). Limitation periods do not run while a plaintiff is a minor or incapable of starting a proceeding because of physical or mental incapacity, and they are suspended on the commencement of a class action. See for example Ontario’s Limitations Act, s. 5-7.

No Market Share Liability
Canadian courts do not recognize market share liability other than in the context of certain statutes that provide for it (e.g., related to tobacco, opioids). For other products, if a plaintiff cannot establish a causal link between their damages and the defendant’s breach of the standard of care, their action will not succeed.

No Regulatory Compliance Defense
Compliance with regulatory requirements has not been recognized by Canadian courts as a bar to liability, though it may be relevant in common law provinces to determining the applicable standard of care and whether a defendant breached its duty of care. Burr at ¶172, 482, citing Ryan v Victoria (City), [1999] 1 SCR 201 at ¶28-29. If a defendant is found to have breached regulatory requirements, this may lead to a finding that it breached its duty of care to the plaintiff. On the other hand, a finding that a defendant has met its regulatory requirements will not displace the requirement to act with reasonable care.

Available Damages

Canadian law recognizes claims for general damages (i.e., damages for “pain and suffering”) and compensatory damages (e.g., out-of-pocket expenses related to the plaintiff’s injury, loss of employment income, etc.). Punitive damages are also recognized, but they are rare and limited to situations in which a defendant’s conduct is found to be “high-handed, malicious, arbitrary or highly reprehensible.” Whiten v Pilot Insurance Co., 2002 SCC 18 at ¶94. Canadian punitive damages awards, when granted, are typically much smaller than those awarded in the United States.

General damages are capped by a trilogy of 1978 decisions of the Supreme Court of Canada, including Andrews v Grand & Toy Alberta Ltd., [1978] 2 SCR 229 (SCC) with the cap indexed to inflation. As of the end of 2018, the cap was about $380,000. Aside from the general damages cap, there is no limit on the amount of damages that may be awarded against one manufacturer.

General Procedure and Disclosure Obligations

General Procedure
Litigation practice and procedure in Canadian common law provinces is generally governed by provincial rules of court and the common law of each province. See for example Ontario’s Rules of Civil Procedure, RRO 1990, Reg 194 [Rules]. Civil claims relating to product liability are normally started by filing a statement or notice of claim in the superior court registry of the province where the plaintiff lives or was injured.

There is no typical length of product liability proceedings in Canada. The time required for an action to reach trial varies by jurisdiction and depends on the number of parties involved, the complexity of the matter and the number of interlocutory steps taken. On average, civil actions take three to four years to get to trial. Class actions will generally take longer. Most Canadian jurisdictions do not have active case management outside the class action context. As a result, the plaintiff must prosecute the case without judicial intervention, which can result in long delays between steps.

Product liability trials are typically heard by judges. Though civil jury trials are available in all provinces except Québec, they are very rare. Product liability trials vary in length, depending on the number of parties, products, experts and witnesses involved. The most recent product liability trial heard in Ontario lasted 27 days. See Burr.

That said, the majority of civil lawsuits are resolved through a settlement rather than an adjudicated determination. In Ontario, most civil cases (including product liability cases) proceeding in Toronto, Windsor, or Ottawa are subject to mandatory mediation, which all parties must attend before trial. The mandatory mediation session is conducted by a private sector mediator of the parties’ choosing. The mediation must take place within 180 days after the first defense is filed unless the court orders differently or the parties agree otherwise (most parties agree to mediate after oral discovery). If mediation fails, the parties continue on to trial.

Disclosure Obligations
Document production obligations are governed by the rules of court in each common law province and by the Civil Code in Québec. In Canadian common law civil cases, disclosure obligations are broad. Litigants are typically required to produce all documents in their power, possession or control that are relevant to any matter at issue in the action. They are also required to list relevant documents that are being withheld from production on privilege grounds, and to state the basis of the privilege claimed. See for example Ontario’s Rules, s. 30.03. Many provinces, in recognition of the scope and complexity of electronic discovery, allow parties to set out the scope of production through a negotiated or court ordered discovery plan. See for example Ontario’s Rules, s. 29.1.

A defendant manufacturer in a negligent design, negligent manufacture, or failure to warn claim will typically be required to produce all relevant documents relating to the design, testing, manufacture, distribution and sale of the product. Manufacturers may also have to produce documents generated subsequent to the incident, including documents relating to similar complaints or accidents, warranty claims, recalls, design changes and related litigation in other jurisdictions.

Canadian rules of civil procedure normally allow oral discovery in all superior court cases. Generally, each party may conduct one examination under oath of all parties adverse in interest. Where the party is a corporation, the company will generally have to produce one representative knowledgeable of the litigation. The scope of questions that can be asked on examinations for discovery is broad and much like the scope of document discovery. See for example Ontario’s Rules, ss. 31.03, 31.06.

Key Considerations for U.S. Attorneys and In-House Counsel

This article is intended as an introduction to product liability litigation in Canada. As discussed, the law and rules governing these actions can differ depending on where the action is started. For the most part, the legal test for liability and the rules around pleadings, document discovery, and oral discovery will not be entirely unfamiliar to U.S. lawyers.

In our experience, a close working relationship between Canadian outside counsel, U.S. in-house counsel, and the company’s U.S. outside counsel is important to ensuring that the company’s strategic objectives are aligned on both sides of the border.

Ashley Paterson of Bennett Jones LLP has a complex commercial practice focused on class action, product liability, consumer protection and privacy litigation. Much of Ashley's work is international in scope and she frequently works with clients facing cross-border litigation. As an experienced litigator with a broad background in the defense of complex class actions, Ashley regularly works collaboratively with U.S. counsel on parallel matters.

Nina Butz of Bennett Jones LLP has a general commercial litigation practice with an emphasis on class actions.

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Trucking Law: In Transit

Effective Use of Independent Neuropsychological Examinations in Traumatic Brain Injury Cases

By Andrew Corkery

For those of us on the defense side of a personal injury case, a traumatic brain injury can be very difficult to assess. This is because the objective evidence of the injury, such as CT scans and MRIs, often do not provide the complete picture of the plaintiff’s injury. Plaintiffs with traumatic brain injuries often suffer from a combination of cognitive and emotional issues that are difficult to quantify. And when assessing these injuries on the defense, there can develop a suspicion that the plaintiff is exaggerating an injury for secondary gain.

An independent neuropsychological examination can therefore be key to assessing, and successfully defending, a traumatic brain injury. An independent neuropsychological examination is an examination that tests the degree to which the plaintiff is experiencing cognitive and emotional impairments as a result of a brain injury. The examinations generally consist of an interview of the plaintiff, behavioral observation of the plaintiff, and the administration of numerous intellectual and psychological tests.

After the independent neuropsychological examination, the neuropsychologist reviews the tests and reflects on observations during the plaintiff interview. The tests provide objective evidence concerning the effects of the traumatic brain injury and can reveal whether the injury is genuine. Needless to say, these results can be very informative for a jury in cases where there is a substantial amount of medical testimony.

Keep in mind, the neuropsychologist may or may not be a medical doctor. The neuropsychologist should be licensed by one of the neuropsychology professional societies, such as the National Academy of Neuropsychology or the American Academy of Clinical Neuropsychology. Ideally, the defense will hire a neuropsychologist and a neurologist to testify regarding the alleged brain injury. The neurologist can testify to the underlying medical diagnosis, while the neuropsychologist can address the effects of the alleged injury. If only one examination is permitted or otherwise undertaken, a neuropsychological exam is often more relevant to the impact of the alleged injury.

The plaintiff’s counsel might also send the plaintiff to an independent neuropsychological examination. Treating physicians do not typically order neuropsychological examinations for their patients. And treating neurologists and neurosurgeons are often not in the best position to explain the impact of these injuries. For these reasons, the plaintiff’s counsel may choose to retain a neuropsychologist to conduct an independent examination on the plaintiff. These tests may provide objective proof of the injury. The testing neuropsychologist’s testimony may supplement the treating physician’s testimony and provide a more complete picture of the injury.

Thus, as a defendant you need to be prepared for competing neuropsychological reports. You will want to review the plaintiff’s neuropsychological report with your expert. Your expert may be able to note inconsistencies and other problems with the report that you can pursue at the deposition or at trial. The plaintiff’s neuropsychologist may also have done only certain tests on the plaintiff. Your neuropsychologist may be able to identify if there was a reason certain tests were not given. Again, this is a line of questioning you would want to use with plaintiff’s expert.

There are some procedural rules to keep in mind in order to require the plaintiff to submit to an independent neuropsychological examination. First, in Federal Court, the examination is permitted by Rule 35(a) of the Federal Rules of Civil Procedure. Most states have a similar rule permitted these types of examinations. _The court may order an examination where a party’s mental or physical condition is in controversy. FRCP 35 (a)(1). The order for examination may be granted for good cause shown, FRCP 35(a)(2)(B). Courts have held that the “good cause” requirement of Rule 35(a) is satisfied upon an affirmative showing that the condition to which the examination is sought is “really and genuinely” in controversy and that good cause exists for ordering such an examination. Schlagenhauf v. Holder, 379 U.S. 104, 118, 85 S. Ct. 284, 13 L. Ed. 2d 152 (1964). Furthermore, courts tend to allow Rule 35(a) examinations where “‘(1) there is a separate tort claim for emotional distress, (2) the plaintiff alleges that he suffers from a severe ongoing mental injury or psychiatric disorder, (3) the plaintiff will offer expert testimony to support the claim, or (4) the plaintiff concedes his mental condition is in controversy.’” Sarko v. Penn-Del Directory Co., 170 F.R.D. 127, 131 (E.D.Pa.1997) (citing Smith v. J.I. Case Corp., 163 F.R.D. 229, 230 (E.D.Pa.1995). Courts generally grant these examinations where there is good cause. The plaintiff will typically agree to submit to the examination without court intervention.

Because the independent neuropsychological examination is considered an Independent Medical Examination (IME) under Rule 35(a), the report generated by the neuropsychologist is not privileged and must be produced even if the results are not helpful to the party requesting the examination. If a report is not generated, courts do have the power to order the neuropsychologist to prepare the report. See e.g. Salvatore v. American Cyanamid Co., 94 F.R.D. 156 (D. R.I. 1982). Note that some courts have held the opposing party is entitled to a deposition of the examining physician even if the party reclassifies the witness as a non-testifying expert. Crowe v. Nivison, 145 F.R.D. 657 (D. Maryland 1993). All of this means counsel should weigh the risks of the neuropsychological examination before proceeding with the examination.

Courts are split on whether the IME report must be produced by the Federal expert disclosure deadline. Waggoner v. Ohio Central R.R., 242 F.R.D. 413 (S.D. Ohio 2007); compare with Shumaker v. West, 196 F.R.D. 454 (S.D. W.Va. 2000). It is important to know the rule in the venue in which the case is pending and, when in doubt, disclose the report prior to the deadline if possible. The examining neuropsychologist does need to be disclosed pursuant to Rule 26 (a)(2)(A) of the Federal Rules of Civil Procedure.

One issue that often arises in these cases is whether plaintiff’s counsel can have someone observe or record the examination. Defense counsel should oppose this request. Professional societies have put forth papers opposing the presence of third parties. The National Academy of Neuropsychology, which is a group of neuropsychologists committed to advancing neuropsychology as a science and health profession, has issued an Official Statement concluding that all outside influences such as third-party observers and electronic recordings should be minimized as they may compromise the accuracy of the assessment. Likewise, the American Academy of Clinical Neuropsychology, whose mission is to advance the profession of clinical neuropsychology through the advocacy of outstanding educational and public policy initiatives, has issued a written policy which states, “It is not permissible for involved third parties to be physically or electronically present during the course of an evaluation assessment of a plaintiff patient.” Without question, this is an issue that should be addressed with the Court should plaintiff’s counsel insist on having a third-party present at the examination.

Another issue arises when the raw data from the independent examination is requested by the opposing counsel. Neuropsychologists generally do not provide the raw data from the testing to outside parties. An exception to this rule is that neuropsychologists will provide their raw data directly to another neuropsychologist. If the opposing party has retained a neuropsychology expert and the neuropsychologist refuses to provide the raw data from the tests, the expert should be willing to produce the data directly to your neuropsychologist. If not, the issue should be addressed with the court.

Prior to the independent neuropsychology examination, the neuropsychologist should have all the relevant medical records pertaining to the plaintiff and all relevant depositions. The plaintiff’s deposition testimony is especially important. If the deposition was video recorded, which is recommended in a case involving an alleged traumatic brain injury, the video recording should be provided as well. This is because the neuropsychologist can compare the responses of the plaintiff during the video recorded deposition to the responses given to the neuropsychologist during the examination. Many neuropsychologists perform validity testing aimed to determine if the plaintiff is putting forth full effort. Further comparison to the video recorded deposition can help in this effort.

When presented with allegations of a traumatic brain injury, effective use of an independent neuropsychology examination and subsequent expert opinion and testimony from the neuropsychologist can be the key to the defense of these difficult claims.

Andrew Corkery is an attorney with Pitzer Snodgrass P.C. in St. Louis, Missouri. His practice focuses on transportation and medical malpractice defense and other types of complex litigation. He is the Vice Chairman of the Illinois Association of Defense Counsel Civil Practice Committee. He is also a member of the Missouri Organization of Defense Lawyers and the National Association of Railroad Trial Counsel. He is a graduate of St. Louis University and St. Louis University School of Law.

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