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Product Liability: An Update from the PLC

Anchoring in Voir Dire and Opening Statements Precluded by Federal Court

By Edward R. Hugo and Bina Ghanaat

Edited by Kate Mercer-Lawson

DRI published our article “The Big Problems With Mini-Openings” in the July/August edition of The Brief Case. The article focused on the problems presented by mini-opening statements and included an example where asbestos plaintiffs’ counsel sought to ask potential jurors in voir dire if they were open to awarding non-economic damages of “over 34 million dollars” to the adult heirs of a sixty-seven-year-old man who “had various medical issues such as being severely obese and having two heart attacks” prior to his death. (Wennerholm v DAP Products Inc., JCCP4674, Los Angeles Superior Court, Case No. 19STCV15874 [1/31/23].) 

In response, counsel for plaintiffs in the Wennerholm case defended their claimed right to mention particular dollar amounts in voir dire in a Commentary titled “The Right to Liberal and Probing Examination of Jurors for Bias Against Large Verdicts,” which was published in the June 2023 edition of COLUMNS- Asbestos.  In turn, the DRI published our reply, “Voir Diring for Dollars,” in the September 2023 edition of The Brief Case, where we pointed out that:

Plaintiffs’ counsel’s Commentary failed to address any of the numerous studies regarding the psychological effects of anchoring on jurors. See, e.g., J. Campbell et al., Countering the Plaintiff’s Anchor: Jury Simulations to Evaluate Damages Arguments, 101 Iowa L. Rev. (2016); see also Mollie W. Marti & Roselle L. Wissler, Be Careful What You Ask For: Anchoring Effects in Personal Injury Damage Awards, 6 J. EXPERIMENTAL PSYCHOL. APPLIED 91, 91–103 (2000); Gretchen B. Chapman & Brian H. Bornstein, The More You Ask For, the More You Get: Anchoring in Personal Injury Verdicts, 10 APPLIED COGNITIVE PSYCHOL. 519 (1996); Verlin B. Hinsz & Kristin E. Indahl, Assimilating to Anchors for Damage Awards in a Mock Civil Trial, 25 J. APPLIED SOC. PSYCHOL. 991 (1995); John Malouff & Nicola A. Schutte, Shaping Juror Attitudes: Effects of Requesting Different Damage Amounts in Personal Injury Trials, 129 J. SOC. PSYCHOL. 491 (1989); Edward (Ted) L. Sanders, et al., Reptiles, Picassos, and Stealth Bombers: Combating Inflated-Non-Economic Tort Damages, MUNICIPAL LAWYER: THE JOURNAL OF LOCAL GOVERNMENT LAW, 19-23 (Vol. 60, No. 6, Nov./Dec. 2019). Instead, they renamed anchoring “preconditioning” and attempted to sweep the associated science under the rug. 

With the competing Commentaries complete, the debate moved into reality as fate paired opposing counsel against each other in Patrick W. Dennis v. Air and Liquid Systems Corporation,, Case No. 2:19-cv-09343-GW-KS, United States District Court for the Central District of California. On behalf of a defendant, we filed various motions in limine, including #10, TO PRECLUDE REFERENCE TO TENS OF MILLIONS (OR MORE) OR SPECIFIED DAMAGES AMOUNTS. As supporting exhibits, we attached our articles, “The Big Problems With Mini-Openings” and “Voir Dire for Dollars,” as well as the mistrial motion in Wennerholm. On September 15, 2023, the court issued the following tentative ruling: 

Initially, as to voir dire, the Court agrees that referencing that “tens of millions of dollars” are potentially at stake risks prejudicing the jury by anchoring them to such sums. Likewise, as an opening statement is simply to orient the jury as to what the expected evidence will be, a reference to tens of millions of dollars is argumentative and will not be permitted. The Court is therefore inclined to grant Defendants’ request as to the voir dire and opening statement. Tentative Rulings on Motions in Limine, Patrick W. Dennis et al. v. Air and Liquid Systems Corporation et al., Case No. 2:19-cv-09343-GW-(KSx), United States District Court for the Central District of California, Sept. 15, 2023 (ECF No. 462). 

That tentative ruling became the order of the court after oral argument on September 18, 2023. Civil Minutes – General, Proceedings: Pretrial Conference, Patrick W. Dennis et al. v. Air and Liquid Systems Corporation et al., Case No. 2:19-cv-09343-GW-(KSx), United States District Court for the Central District of California, Sept. 18, 2023 (ECF No. 463).

The psychological effects of anchoring are real and prejudicial, and counsel must be proactive in precluding such tactics. 

Edward HugoEdward R. Hugo is a trial attorney, appellate lawyer, litigator and litigation manager for cases involving products and premises liability, toxic torts, environmental claims, construction defect, personal injury, wrongful death, insurance, professional negligence, sexual molestation and criminal law. He has also been retained as an expert witness and testified in trial, arbitration and deposition regarding: the duties of defense counsel, the effectiveness of defense strategies, the reasonableness of settlement values and defense costs, and insurance coverage issues. 

Bina GhanaatBina Ghanaat is a Partner with experience in toxic torts, insurance coverage, bad faith, habitability, and personal injury cases. She manages her cases from inception to resolution, handling discovery, depositions, law and motion, and trial preparation in state and federal courts. Ms. Ghanaat has defended a wide range of clients, including manufacturers, suppliers, contractors, insurance carriers, building owners, and trucking companies. She has drafted numerous motions for summary judgment that have resulted in dismissals of her clients or significantly reduced demands. She has also drafted and argued successful motions for summary adjudication as to punitive damages and various causes of action in asbestos matters venued in San Francisco and Alameda. For those cases in which a dispositive motion has not been viable, Ms. Ghanaat has prepared them for trial in an efficient manner with an emphasis on achieving optimal results for her clients. In Fall 2020, Ms. Ghanaat was co-counsel in one of the first “virtual” trials in Alameda County. 

Interested in joining the Product Liability Committee? Click here for more information.

2023-Product Liability

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Insurance Law

Insurance Law: Covered Events

Leadership Note: Advertising Injury and Personal Injury SLG

By Daniel I. Graham, Jr.  

Edited by Allyson Moore

When “personal and advertising injury” liability coverage was first introduced, the internet did not exist, there were no personal computers, and only a limited number of businesses had access to facsimile communication over hardwire telephone lines.  Since that time, however, technology and communication methods have advanced, introducing a new breed of claims: privacy violations, security breaches, and intellectual property infringement, to name but a few.  And the question is asked: to what types of risks and exposures does a liability policy’s “personal and advertising injury” coverage apply?  And each day, courts throughout the country are answering that question. 

If you are interested in Coverage B topics and are looking for opportunities to get involved with DRI, I invite you to join the Advertising Injury and Personal Injury Subcommittee.  The Advertising Injury and Personal Injury Subcommittee brings together practitioners throughout North America to share their experience with this developing body of case law. Our members offer their insights in DRI publications.  We speak on cutting-edge topics at the Insurance Law Committee’s popular educational events, including the Insurance Coverage and Claims Institute and the Insurance Coverage and Practice Symposium.   

And if our subcommittee isn’t for you, please know that the Insurance Law Committee offers its members plenty of other subcommittees where they can learn, contribute, and participate.  Come join us!      

If you have any questions, or would like more information, please reach out to me at   

Daniel I. Graham, Jr.Daniel I. Graham, Jr. is a partner at Nicolaides Fink Thorpe Michaelides Sullivan. He is Chair of the Advertising Injury and Personal Injury Subcommittee.


Defense Counsel Cannot Proceed on Autopilot When It Comes to Self-Driving Vehicle Defense 

By Josh Ladwig

Edited by Allyson Moore

In 2018, a pedestrian, Elaine Herzberg, was killed when she was struck by a self-driving Uber operated by Rafaela Vasquez. Recently, Ms. Vasquez, the self-driving vehicle operator, pled guilty to endangerment, avoiding the charge of negligent homicide and jail time. Katherine Tangalakis-Lippert, The first self-driving car fatality case put to rest who was responsible for killing a pedestrian. In this case, it was not the robot, Insider (July 30, 2023), At the time of the accident Ms. Vasquez was watching a video while riding in the vehicle and failed to recognize that the vehicle was going to strike the pedestrian. Although the self-driving vehicle identified the pedestrian, the vehicle failed to realize the pedestrian was going to enter the vehicle’s path. This combination unfortunately led to the death of Ms. Herzberg. 

Identifying Parties and Potential Liability

From a third-party civil defense standpoint, Ms. Vasquez’s guilty plea is an admission of guilt and admissible at a civil in many states, such as in Illinois. The article referenced above alludes to a conclusion that Ms. Vasquez, and not the self-driving vehicle or software manufacturer, is to blame for the accident. While this might seem intuitive because Ms. Vasquez made the decision to engage the self-driving software and failed to continue to monitor the roadway relying upon the self-driving software, this conclusion is over-simplified. Surely, a claimant or plaintiff will wish to make a claim against the operator, but also the self-driving vehicle and software manufacturer, if possible, and in the instance of Ms. Vasquez, Uber. Uber settled the claim made by Ms. Herzberg’s estate.  

In April, Tesla prevailed in a lawsuit which alleged Tesla’s “Autopilot” driver assist software was to blame for a 2019 accident. A jury found that the Tesla software was not at fault for the crash even though the “Autopilot” system was engaged. Jay Peters, Tesla wins lawsuit that blamed Autopilot for crash, The Verge (April 21, 2023), A corrected special verdict was entered on May 30, 2023. Justine Hsu v. Tesla, Inc., Case Number 20STCV18473, The Superior Court of California, County of Los Angeles,  

Taking Hsu v. Tesla, Inc. a step further to a third-party claim against a self-driving vehicle operator and the manufacturer, in Maldonado v. Tesla et al., the father of 15-year-old Jovani Maldonado sued Tesla alleging Tesla’s “Autopilot” system was to blame when a Tesla, operated by Romeo Lagman, failed to reduce speed on the freeway and struck the rear of the Maldonado’s Ford Explorer. Maldonado v. Tesla et al., Superior Court of California, County of Alameda, Case No. 22CV024143. Jovani was ejected from the vehicle and died. The lawsuit also alleges Mr. Lagman was negligent for failing to pay attention and slow to avoid the accident. Neither Mr. Lagman nor the Tesla Autopilot system appreciated the Maldonado vehicle or applied the brakes See also, Neal E. Boudette, Tesla Says Autopilot Makes Its Cars Safer. Crash Victims Say It Kills. The New York Times (Pub. July 5, 2021, updated Sept 1, 2021), In fact, the Tesla vehicle data indicates Mr. Lagman’s vehicle accelerated slightly just prior to striking the rear of the Maldonado vehicle.  

Individual Auto Policy Liability Defense Concerns

As noted above, Ms. Vasquez was charged with negligent homicide; however, in a civil case a plaintiff could allege the defendant self-driving vehicle operator acted negligently and intentionally. Further, the plaintiff may request punitive damages in addition to compensatory damages based on allegations of willful and wanton or intentional acts. From the position of an insurance defense counsel retained to defend and protect the insured, allegations of intentional acts or a request for punitive damages raises red flags as counsel for the insured must work to protect the insured and the insured’s personal assets.  

Personal auto policies typically contain provisions which exclude coverage for bodily injury or property damage which is reasonably expected or intended by an insured even if the resulting bodily injury or property damage is different than initially expected or intended. Personal auto policies also contain provisions which exclude coverage for punitive or exemplary damages, fines, or penalties. In other words, the personal auto policies exclude coverage for intentional acts or punitive damages which may be claimed by a party injured by an insured who is “operating” a vehicle using self-driving software. Further, some states, like Illinois, have stated it is against public policy to provide insurance coverage for punitive damages. See, e.g., Xtreme Prot. Servs. LLC v. Steadfast Ins. Co., 143 N.E.3d 128, 135-136 (Ill. App. Ct. 2019). Accordingly, defense counsel, on behalf of their insured client, must attempt to steer civil litigation so it is contained within the boundaries of insurance coverage and allegations of negligence by arguing that the self-driving vehicle operator relied upon the self-driving software, and, at worst, the insured self-driving vehicle operator was merely, potentially, negligent based an alleged failure to keep a proper lookout or monitor the self-driving vehicle. This would follow that defense counsel must be prepared to avoid, and fight against, plaintiff’s counsel’s potential assertions that the insured self-driving vehicle operator intentionally engaged the self-driving software and intentionally avoided keeping a lookout for the claimant. Such arguments are along the same line as arguing an individual insured defendant in a bodily injury claim or lawsuit who drank alcohol intentionally drank the alcohol, and then intentionally operated a motor vehicle even if the driver was not legally intoxicated. In other words, plaintiff’s counsel may attempt to interject intentional acts or omissions into the factual allegation in addition to allegations of negligence. 

Of course, the arguments by the insured self-driving vehicle operator to keep bodily injury and property damage claims within negligence, and outside the scope of intentional acts, places the self-driving vehicle operator at odds with the vehicle or software manufacturer. Conversely, the software or vehicle manufacturer will likely wish to claim “operator error” pitting the potential defendants, operator and manufacturer, at odds benefiting the plaintiff as we have seen all too often in various defense situations such as those involving multiple drivers, premises liability, and construction incidents. 

Legislating Autonomous Vehicles 

With continued advances in technology the number of states in which it is legal to operate an autonomous vehicle will continue to grow. Since 2011, states, and Washington D.C., have been increasingly enacting legislation related to the operation of autonomous vehicles,, including Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Hawaii, Illinois, Iowa, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, and Wisconsin. Autonomous Vehicles/Self-Driving Vehicles Enacted Legislation, National Conference of State Legislatures (Feb. 18, 2020),; Autonomous Vehicles State Bill Tracking Database, National Conference of State Legislatures (updated Feb. 15, 2023),; Autonomous vehicle laws, Insurance Institute for Highway Safety (IIHS) (Oct. 2023),  

Presently, state legislation varies as to how a self-driving vehicle operator or manufacturer may be liable, or the extent or factual implications, if the self-driving vehicle is involved in an accident. For instance, in North Carolina a person is not required to hold a driver’s license while using an autonomous vehicle. N.C. Gen. Stat. § 20-401. Further, in North Carolina and Washington D.C., no liability is imposed on the manufacturer of a vehicle if a third-party converts the vehicle so the vehicle can be operated autonomously. N.C. Gen. Stat. § 20-401; D.C. Code § 50-2353. Compare those laws to California for example, which requires that the driver be seated in the driver’s seat, “monitoring the safe operation of the autonomous vehicle, and capable of taking over immediate manual control of the autonomous vehicle in the event of an autonomous technology failure or other emergency.” Cal. Code 38750(b)(2). Of course, statutory requirements, or leniency, do not necessarily avoid common law causes of action such as those in tort like negligence against a self-driving vehicle operator. 

If history is any indication, there could be a push for legislation implicating strict liability for operators of self-driving vehicles or increasing minimum personal automobile liability coverage limits for owners of vehicles equipped with self-driving software, as just a couple examples, think animal control act-type legislation making an owner strictly liable for a dog bite. On the other hand, some scholars believe liability could shift away from self-driving vehicle operators and toward product liability. For instance, Professor Michael L. Rustad, predicts “autonomous vehicles will eliminate human error” and that when autonomous vehicles are widely available in a few decades, the courts should apply products liability. Michael L. Rustad, Products Liability for Software Defects in Driverless Cars, 32 S. Cal. Interdis. L.J. 171, at 174, 212, (Fall, 2022). Further, Harvard Law School Professor Steven Shavell has suggested some version of product liability or strict liability should be imposed in place of liability based on driver fault which will become moot. Steven Shavell, On the Redesign of Accident Liability for the World of Autonomous Vehicles, 32 S. Cal. Interdis. L.J. 171. (Fall, 2022). 

Convincing a legislator to author such a piece of legislation is a simple as lobbying to hold a person relying upon self-driving software, and otherwise not paying attention, to a higher standard rather than allowing the operator to attempt to shift, or avoid, the liability associated with such reliance. In a time when society struggles with the balance of those who wish to shift blame or ignore self-responsibility and those who wish to hold others account, combined with the inevitable advancement of technology, it is not beyond possibility that a legislator, or legislation, would take such a step to enact legislation assigning responsibility or liability. For instance, in Nevada, there is enacted legislation which states, “A monitored autonomous vehicle provider who provides transportation services … is liable in tort for any damages arising out of the provision of transportation services in the same manner and to the same extent as if … were a driver providing transportation services using a motor vehicle.” Nev. Rev. Stat. § 706A.162. 

Conclusion - Opposing Views, United Defense Front 

In the end, defense counsel must be aware of changing climate, both legislatively and legally, in order to prepare to defend insureds, whether individuals or manufacturers, against advancements in technology, the plaintiff’s bar, and legislative assignment of blame. Although individual operators and users of self-driving vehicles may, be at odds with manufacturers when a lawsuit is filed as in Maldonado, it is to the benefit of all defense counsel to continue to extend the courtesy of knowledge and defense strategies so we can best protect our clients. Even when our clients are proceeding on “autopilot”, defense counsel cannot. 

Josh LadwigJosh R. Ladwig is an equity partner and member with SpyratosDavis LLC providing legal services in Chicago, the surrounding suburbs, and generally the northern third of Illinois. Josh concentrates his practice on coverage and defense related to residential and commercial properties, automobile, construction, trucking, and business losses, as well as bad faith and extracontractual litigation. His practice also involves commercial litigation related to contract, property, business, and estate disputes. In addition to his involvement in DRI, Josh is involved with the local DuPage County Bar Association and the Illinois Defense Council. 

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Professional Liability
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Litigation Skills: Trials and Tribulations

Leadership Note

By Anelise Codrington and Stephen Keller

Greetings DRI Members! 

The Litigation Skills Committee is currently in the midst of an exclusive pilot project called the “.1 Series” in which attorneys record themselves for 6 minutes giving presentations on a specific topic.  

The videos, typically recorded on the Teams or Zoom platforms, cover various litigation topics designed to be refreshers for more experienced practitioners and they also provide quick tips for newer attorneys looking to further hone their litigation skills.

One “book” of videos is already complete and two remaining “books” are being created now.  Once finished, the “books” will comprise an on-demand video series for DRI members.   

Because there are only a limited number of spots remaining, they will be filled on a first-come, first served basis.   

If you are interested, please reach out soon to Anelise Codrington at and Stephen Keller at  

Anelise CodringtonAnelise Codrington is an associate at Chartwell Law. She is the .1 Series Program chair for the Litigation Skills Committee.

Stephen KellerStephen Keller is a Partner at Barnes Maloney PLLC. He is the .1 Series Program vice chair for the Litigation Skills Committee.

Interested in joining the Litigation Skills Committee? Click here for more information.

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Governmental Liability

From the Governmental Liability Committee

Join the DRI Governmental and Civil Rights Committee in Phoenix!

By Tricia M. Ambrose

The DRI Governmental and Civil Rights Committee is excited for their upcoming 2024 Seminar in beautiful Phoenix Arizona from January 17-19, 2024.  This is the 37th annual seminar for our committee and we are excited to bring exciting new topics and some of our favorite return speakers. For the first time this year, we are offering a session beginning on Wednesday afternoonIn addition, we have a three-part series on handling police claims which will cover how to initially handle an incident through trial, as well as a great session on the science of use of force.  The program also has great break sessions covering new topics facing our municipal clients including homelessness, defending first amendment claims related to protests, transgender issues and the physical impact of tasers.  Our seminar would not be complete without the return of Professor Karen Blum to speak on qualified immunity and Tom Dupree to cover all things Supreme Court.

In addition to great programming, we will have dine-arounds where you can meet new friends and colleagues or reconnect with old ones.  There will also be a networking event Thursday night with the Construction Law and Women in the Law Committee.  Register by December 4 to get the early bird price!  See you in Phoenix!

Tricia AmbroseTricia Ambrose is a Partner at MacMain Leinhauser PC. She is the 2024 Program Vice Chair for the Governmental and Civil Rights Committee.

Civil Rights

Notable Circuit Decisions: Second Circuit

By Alexandra A. Calhoun

The Clementine Company, LLC v. Adams, 74 F.4th 77 (2023)

On August 3, 2021, the Mayor of New York City announced the Key to NYC Program which provided that proof of vaccination would be mandatory for patrons and staff at various indoor businesses, including theaters. Entities to which the program applied were required to check the vaccination status of patrons and staff and refuse entry to those who could not produce proof of vaccination. 

Plaintiffs operated small venue theaters located in Manhattan. Plaintiffs allege that as a result of the Key to NYC Program they have suffered financially. Plaintiffs further argue that the Key to NYC Program constituted a content and viewpoint-based restriction on their speech, thus violating their right to freedom of speech under the First Amendment. 

The Second Circuit disagreed, holding that “Key to NYC was a public health regulation of general application against the physical premises in which Plaintiffs happen to perform theater.” The Second Circuit further noted that “Key to NYC neither limited what Plaintiffs may say nor required them to say anything.” In summary, “the First Amendment protects the right to express one’s viewpoint, but it does not guarantee ideal conditions for doing so, since the individual’s right to speech must always be balanced against the state’s interest in regulating harmful conduct.”  

Matzell v. Annucci, 64 F.4th 425 (2023)

The Plaintiff was sentenced in New York State Court to four years imprisonment followed by three years of post-release supervision for a controlled substance offense. The sentencing judge ordered Matzell’s enrollment in the Shock Incarceration Program (“Shock”), a six-month bootcamp program that, if successfully completed, allows inmates to be released from prison early. Once Plaintiff became eligible for Shock, Defendants, Acting Commissioner and Deputy Commissioner of the New York State Department of Corrections and Community Supervision, and five staff members of the Correctional Facility, denied Plaintiff’s admission to Shock because of disciplinary “tickets” he had received for drug use while in prison. Of note, New York Corrections Law provides that when an individual is judicially sentenced to Shock, state prison officials may only screen out the individual when the individual has a medical or mental health condition that would prevent successful completion of the program. 

Plaintiff brought a 42 USC §1983 action against Defendants alleging that they violated his rights under the Eighth and Fourteenth Amendments. Defendants argued they were entitled to qualified immunity. 

The Eighth Amendment protects prisoners from cruel and unusual punishment by prison officials.   A plaintiff must show that the alleged deprivation is objectively sufficiently serious to constitute cruel and unusual punishment and that the charged official acted with a sufficiently culpable state of mind. In Matzell, the Second Circuit noted that Plaintiff was required to prove that the prison officials had a state of mind that is the equivalent of criminal recklessness. Ultimately, the Second Circuit held “that when Defendants denied Matzell’s judicially ordered entry into Shock, it was not clearly established that denying an inmate such an opportunity for early conditional release would violate the Eighth Amendment.” 

The Second Circuit also ruled that Plaintiff had plausibly alleged that Defendants violated a clearly established Fourteenth Amendment right. “Defendants’ justification that they interpreted New York Penal Law as giving them authority to exclude those judicially ordered to be enrolled in Shock based on DOCCS’ administrative criteria was objectively unreasonable in light of the DLRA’s purpose and the plain statutory law and New York Correction Law.” The Second Circuit further noted that Defendants did not have the power to alter Matzell’s sentence and thus unreasonably extended his sentence. 

Kane v. Mount Pleasant Central School District, 80 F.4th 101 (2023) 

In Kane, the Second Circuit addressed whether New York’s Child Victims Act §214-g, which revives the time to commence civil actions based upon certain sexual offenses committed against children, can also revive or toll a federal claim under 42 USC §1983 or Title IX that is otherwise time-barred. 

The Second Circuit held that §214-g has no impact on limitation for periods for federal claims, as federal claims under §1983 and Title IX are governed under New York’s general statute of limitations for personal injury actions. 

Richardson v. McMahon, 2023 WL 3102910 (2023)

Plaintiff brought a false arrest and malicious prosecution action under 41 USC §1983 and Connecticut Law against the City of Waterbury and three Waterbury Police Department officers. Plaintiff was arrested after the officers received statements from the victim and her daughter suggesting that Plaintiff had assaulted the victim. Plaintiff alleged that these statements were coordinated. The Second Circuit held there was probable cause for the arrest. 

Secondly, Plaintiff argued that Defendants had waived qualified immunity when they testified at Plaintiff’s criminal trial. The Second Circuit noted that Plaintiff must establish that the officers had created false information likely to influence a jury’s decision. Merely highlighting minor inconsistencies between trial testimony and the officers’ alleged lack of investigative rigor fails to establish the creation of false information.  

Murphy v. Hughson, 82 F.4th 177 (2023)

Plaintiff was arrested on a misdemeanor bench warrant. Plaintiff appeared in Elmira City Court where his bail was set. His girlfriend promptly posted bail. He was then transferred to County Jail. Despite this fact, it was two more hours before Plaintiff was released. 

About an hour after arriving in County Jail, Plaintiff was taken to a small room by Defendant Washburn. Washburn then conducted a visual body cavity search. As Washburn escorted Murphy out of the room, Washburn made certain gestures to other officers, which Murphy understood as mockingly referring to his anatomy. Further, Washburn allegedly stated that Murphy was going to “sit in his jail for a while.”

The Second Circuit analyzed qualified immunity as to the strip search. The Second Circuit noted that “at no point in this litigation have defendants purported to identify a legitimate penological purpose for the strip search. Furthermore, there was evidence that Washburn’s actions were motivated by malice. He mocked Murphy [about his anatomy]. And when another officer noted that Murphy’s bail was ‘out there’ and they needed ‘to cut him loose’, Washburn responded in a manner that could be understood to exhibit malice.” Therefore, the Second Circuit denied Defendant’s motion for summary judgment on the issue of qualified immunity as a “reasonable jury could readily conclude that Washburn was acting not to further legitimate penological concerns but purely out of vindictiveness.”

Alexandra CalhounAlexandra A. Calhoun is an associate at Sugarman Law Firm, LLP with offices in Syracuse, Auburn, and Buffalo, New York. She practices in the areas of Municipal and Governmental Liability, Insurance Defense, and Medical Malpractice Defense. She is admitted to practice law in New York State, the Western District of New York, and the Northern District of New York.


Notable Circuit Decisions: Sixth Circuit

By Dale Conder

Ingram v. Wayne County, 81 F.4th 603 (6th Cir. 2023): 
Plaintiffs sued Wayne County because of its policy of seizing and holding vehicles while taking months to decide if the County will initiate forfeiture proceedings. The Sixth Circuit held that the Fourteenth Amendment’s due process clause requires a timely post-seizure hearing. The court held that due process requires this hearing within two weeks. 

McElhaney v. Williams, 81 F.4th 550 (6th Cir. 2023): Mr. McElhaney’s daughter played on a public high school’s softball team. The team had rules or suggestions that, among other things, prohibited parents criticizing coaches for decisions about playing time. The coach benched Ms. McElhaney, and her father did not like it. One day while father and daughter were at home, Mr. McElhaney texted his views to the coach. After some back-and-forth, the coach reported daddy to the school. Despite the father having season-tickets, the principal banned him from a weeks’ worth of games. The father hired a lawyer and sued alleging the ban was retaliation for his protected speech. He also alleged a due process violation because he could not use his season tickets. 

Defendants won summary judgment based on qualified immunity, and Mr. McElhaney appealed. The district court determined if this were a constitutional violation, it was not clearly established. On appeal, the Sixth Circuit panel reversed finding that it is clearly established that “when a school employee interacts with a student, speech by the student’s parent about those interactions enjoys First Amendment protection.” The court distinguished between this case and cases involving students. The court reversed and remanded for the district court to determine if the ban was in retaliation for the speech. 

As for season tickets and due process protections, the Sixth Circuit held that the due process clause does not protect this property interest because a state-law breach of contract action will remedy any harm.   

O’Conner v. Eubanks, __ F.4th ___, 2023 U.S. App. LEXIS 26620 (6th Cir. 2023):

Under Michigan’s Uniform Unclaimed Property Act, the state took custody over two checks payable to O’Connor. The checks totaled $350.00. When O’Connor did not claim the checks, the two companies turned them over to the state. The state liquidated the checks. O’Connor made a claim and the state compensated him for the value of the property, but not any post-liquidation interest. O’Connor sued the state and two officials in their individual capacities. Qualified immunity protected the two officials because it has not yet been clearly established that individuals can be liable under the Fifth Amendment’s takings clause. This result is based on the Sixth Circuit’s holding in Sterling Hotels, LLC v. McKay, 71 F.4th 463 (6th Cir. 2023), in which the court held that individual liability under the takings clause is not clearly established. O’Connor’s Fourteenth Amendment claims against the individuals for lack of due process were remanded. Sovereign immunity protected the state from the takings-clause claim. 

In his concurring opinion, Judge Thapar raised the possibility of suing officials directly under the Fifth Amendment’s takings clause. This term the Supreme Court will address that issue in DeVillier v. Texas, 2023 U.S. LEXIS 2958 (order granting cert. petition).

Dale ConderDale 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.

Interested in joining the Governmental Liability Committee? Click here for more information.

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Governmental Liability

From the Governmental Liability Committee (Cont.)

Notable Circuit Decisions: Eighth Circuit

By Rebecca L. Mann

Aldridge v. City of St. Louis, Missouri, 75 F.4th 895 (8th Cir. 2023).

Protesters protesting the acquittal of a police officer on first-degree murder charges sued police officers and the City of St. Louis after being pepper sprayed by an officer. They alleged claims for First Amendment retaliation. One protester yelled he was going to “f*** up” the officer and an unidentified protester shouted something to the effect of “shut this motherf***er down” or “shoot these mother***ers.”  Thereafter, the officer, without warning, deployed his pepper spray on the crowd, spraying side to side in a sweeping motion. The Eighth Circuit affirmed summary judgment in favor of the defendants confirming the protesters failed to establish a “retaliatory animus” to support a First Amendment retaliation claim because they could not demonstrate they were singled out due to their protected expression due to the officer using a sweeping motion on the crowd and not pepper spraying a specific protester. Monell claims therefore failed for the lack of individual liability on an underlying claim. 

Estate of Brown through Brewer v. E.C. West, 76 F.4th 1078 (8th Cir. 2023).

Passenger in a car that led police on a dangerous high-speed chase was shot and killed and his estate sued alleging excessive force and state-created danger.  The driver failed to stop and ultimately stopped after hitting a police car head on. The passenger sat in the car with his hands up. When an officer approached, the driver reversed the car hitting another police car and dragged the officer alongside the car, running over his legs. Multiple officers shot at the driver and both the driver and the passenger were killed. The Eighth Circuit affirmed summary judgment in favor of the defendants.  The use of force was determined to be objectively reasonable under the circumstances because it was the driver, not the police officers, who put the passenger in extreme danger, eliminating the state-created danger claim.

Buschmann v. Kansas City Board of Police, 76 F.4th 1081 (8th Cir. 2023). 

Dog owners alleged violations of the Fourth and Fourteenth Amendments after an officer shot and killed their dog.  Law enforcement was dispatched to the residence because a neighbor believed a domestic disturbance was occurring. The neighbor advised there was a dog but that he did not think he was likely to attack. Police officers knocked on the door and heard a dog approaching with barking and growling noises. When the door was opened, the dog ran directly toward the officer who fired a shot at the dog. The dog turned away from the shooting officer and ran toward the other officer, so a second shot was fired. The owner was at the door but the officers did not see her. Upon further investigation, it was determined that the noises reported by the neighbor did not come from the house in question so they officers left. Shooting a dog is a seizure of a person’s property but it was determined to be reasonable in this case given the behavior of the dog and the failure of the owner to control the dog at the doorway. Officers were entitled to qualified immunity.

Cheeks v. Belmar, 80 F.4th 872 (8th Cir. 2023). 

Driver’s estate sued police officers after the driver crashed into a tree and died. Police were pursuing the driver for an alleged red-light violation and claim the driver lost control of the vehicle during the pursuit. The estate alleged the officers performed a “PIT” maneuver causing the car to go into a spin and crash. The estate alleged the officers violated the Fourteenth Amendment because they did not render aid by calling 911, even though a bystander had called 911 within 30 seconds of the accident. The driver died at the scene. Officers were denied qualified immunity because they placed the driver in custody by the use of the “PIT” maneuver that left the driver unable to care for himself, and failing to call 911 was a denial of medical treatment.

rebecca mannRebecca 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.


Notable Circuit Decisions: Ninth Circuit

By Christian E. Foy Nagy

R.W. v. Columbia Basin College, 77 F.4th 1214 (2023); No. 21-35995: 

The Ninth Circuit permitted a nursing student to maintain his injunctive relief suit against Columbia Basin College under the Ex Parte Young exception to Eleventh Amendment immunity. The college had terminated R.W. from his nursing program after learning from his therapist that he had privately expressed intrusive homicidal thoughts about his instructors.  After appealing his termination internally, R.W. filed suit seeking damages, reinstatement in the nursing program, and expungement of his failing grades. An earlier appeal of the denial of qualified immunity was reversed in the officials’ favor. R.W. v. Columbia Bain Coll., 842 F. App’x 153, 154 (9th Cir. 2021).  In the second appeal, the panel affirmed that Columbia Basin College officials were subject to suit in their official capacities for prospective relief under the Ex parte Young exception to Eleventh Amendment immunity, which permits actions seeking prospective relief against officials for violation of federal law. The panel held that R.W.’s complaint alleged an ongoing violation of his constitutional rights given the uncertainty as to whether he could reenroll in the nursing program or qualify for financial aid. The Dean of Student Conduct was a proper defendant because he was directly involved with the alleged constitutional violations and there was a question of fact as to whether he had authority to implement injunctive relief if so ordered.

Progressive Democrats for Social Justice v. Bonta, 73 F.4th 1118 (2023); No. 22-15323. 

The Ninth Circuit deemed California Government Code section 3205 unconstitutional under the First and Fourteenth Amendment.  Section 3205 prohibited local government employees from soliciting political contributions from their coworkers; that same prohibition was not extended to state government employees. A political organization and two of the organization’s officers challenged the statute responsible for this distinction. Because Section 3205’s discrimination against local employees was not justified under any arguably applicable standard, the Ninth deemed it unconstitutional. The panel held that Section 3205 does not survive constitutional scrutiny under either the “closely drawn” standard from McCutcheon v. FEC, 572 U.S. 185 (2014), or the balancing test articulated in Pickering v. Board of Education, 391 U.S. 563 (1968), and United States v. National Treasury Employees Union, 513 U.S. 454 (1995). The panel held that the speculative benefits that Section 3205 may provide the Government were not sufficient to justify the burden on plaintiffs’ expression.

Hill v. City of Fountain Valley, 70 F.4th 507 (2023), No. 21-55867. 

The Ninth Circuit affirmed summary judgment for police officers in an action brought pursuant to 42 U.S.C. § 1983 alleging violations of plaintiffs’ Fourth Amendment rights against warrantless arrests and excessive force. Police responded to a 911 call that a Ford Mustang was darting erratically in the streets, with a blindfolded female passenger in the car.  Police tracked the license to the driver’s home, where they learned from his parents that the driver was taking his wife for a surprise anniversary dinner. Still believing they were investigating a kidnapping, the officers ordered Benjamin’s parents, Stephen and Teresa, and brother, Brett, out of their home for obstructing the investigation and pushed Stephen to the ground as they handcuffed him. The Court found that the police officers had not violated plaintiff’s Fourth Amendment rights against unreasonable seizure by ordering the family to exit the home or face arrest for obstruction. While the officers did not have probable cause to arrest Stephen for obstruction of justice, they were nevertheless shielded by qualified immunity. There was no clearly established law that the officers could not arrest Stephen, given his evasive behavior that appeared to interfere with an urgent investigation into a potential kidnapping. 

Christian NagyChristian E. Foy Nagy is a Partner in Freeman Mathis & Gary’s Los Angeles office.  Ms. Nagy is certified as a specialist in Appellate Law by the California Board of Legal Specialization. She has numerous published and unpublished opinions in the areas of professional liability, general liability, contract disputes, and public entity liability in both state and federal court. She also works at the trial court level on critical dispositive motions in order to preserve victories and insulate good outcomes from reversal on appeal.  

Notable Circuit Decisions: Eleventh Circuit

By Blake Walker

Edger v. McCabe, ---F.4th --- 2023 WL 6225140 (Sept. 26, 2023).

Plaintiff appealed the district court’s grant of summary judgment on his false arrest claim against two arresting officers and a municipality. Plaintiff, a mechanic, and his stepson were on a church’s property attempting to repair a customer’s vehicle. When the police arrived to investigate, they demanded that Plaintiff present his identification. When the Plaintiff refused, he was placed under arrest for obstruction. The court relied on the officer’s body camera footage to settle otherwise disputed facts, such as whether Plaintiff used force or intimidation during the encounter. The court also stated that the officers would be entitled to qualified immunity if they had arguable probable cause and that “arguable probable cause is just another way of saying that the law is not clearly established.” Despite this low standard, the Court reversed the grant of summary judgment, holding that there was no arguable probable cause. 

Austin v. Glynn County, Ga., 80 F.4th 1342 (11th Cir. 2023)

Officers brought a collective action under the Fair Labor Standards Act against the Sheriff of Glynn County, Georgia. The district court dismissed the claim, and the Eleventh Circuit affirmed for three reasons. First the Sheriff, in his individual capacity, is not an employer under the FLSA. The circuit noted that there is a panel split on this issue, but stated that it could not, as a panel, deviate from the prior Eleventh Circuit holdings. Second, the court held that the Sheriff, in his official capacity, is entitled to Eleventh Amendment immunity for the compensation decisions he makes for his employees because he is acting as an arm of the state. Finally, the court noted that Georgia had not waived sovereign immunity for claims against it under the FLSA; thus, the Sheriff, as an arm of the state, could assert sovereign immunity. Accordingly, the circuit affirmed the trial court’s dismissal of the plaintiff’s claims.  

Tucker v. Governor of Alabama, 80 F.4th 1205 (11th Cir. 2023).

The state of Alabama passed the Vulnerable Child Compassion and Protection Act. This law forbade the prescription or administration of puberty blocking or cross-sex hormone treatment to a minor. After the law was passed, a group challenged the constitutionality of the law, arguing that it violated the Due Process and the Equal Protection Clauses of the United States. The district court issued a preliminary injunction, preventing the enforcement of the law, which the State of Alabama appealed. As to substantive due process, the Eleventh Circuit held that although there is a general right to make decisions on the upbringing, care, custody, and control of one’s children, there is not a fundamental right to “treat one’s children with transitioning medications subject to medically accepted standards.” And as to equal protection, the court held that the law targeted specific medical treatments for children and did not classify on the basis of any suspect characteristic under the Equal Protection Clause. Accordingly, the circuit vacated the lower court’s preliminary injunction. 

Baker v. City of Madison, Ala., 67 F.4th 1268 (11th Cir. 2023).

Plaintiff brought an excessive force claim against an officer and a Monell claim against a municipality. Plaintiff alleged that he was tazed while having a seizure after a motor vehicle accident. Body camera footage, however, showed that Plaintiff was combative, failed to follow orders, and was not having a seizure. The district court relied on body camera footage at the motion to dismiss stage and dismissed Plaintiff’s claims. The Eleventh Circuit affirmed the dismissal and held that the district court properly relied on the body camera footage without converting the motion to dismiss into a motion for summary judgment because Plaintiff referenced the body camera footage in his complaint, and thus it was incorporated by reference.

David Sosa v. Martin County Fla., 57 F.4th 1297 (11th Cir. 2023).

Arrestee sued for false arrest, over detention, and a Monell claim when he was arrested, for the second time, and detained for three days and three nights because of an outstanding warrant for another man with the exact same name. The district court dismissed Plaintiff’s complaint for failure to state a claim. The Eleventh Circuit affirmed the lower court’s dismissal and held that the officer that arrested and detained Plaintiff was entitled to qualified immunity. The circuit stated that the arresting officer’s mistake was reasonable because not only did Plaintiff’s name match the warrant, but Plaintiff was the same sex, same race (presumably because it was not alleged otherwise), and roughly the same age. Further, the court held that the alleged differences between Plaintiff and the wanted man, such as weight, tattoos, and birthdays were immaterial because of the significant time between when the warrant was issued and Plaintiff was arrested. Accordingly, the circuit affirmed the dismissal of Plaintiff’s false arrest claim. As for Plaintiff’s Monell claim, the circuit held that it was also properly dismissed because the only previous false arrest that Plaintiff alleged was his own from years before, and that was insufficient to allege a pattern of similar constitutional violations. Therefore, the circuit also affirmed the dismissal of Plaintiff’s Monell claim. 

Blake WalkerBlake Walker is an associate in the Atlanta office of Hall Booth Smith. Blake’s practice areas include governmental liability, medical malpractice, and general liability.

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