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2017 August Newsletter - Section Updates
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Alternate Dispute Resolution


The ADR section held a stand alone section meeting at the FDCC Annual Meeting in Montreux.  The presenters were Sonja Bjorkquist of Osler, Hoskins, and Harcourt, LLP, Toronto, David Roney of Sidley Austin LLP, Geneva, and Mary Lopatto of Williams and Lopatto, DC.


The topic was Ethical Issues and Practical Strategies: Lessons Learned from International Arbitration.


The speakers discussed the threshold issues of determining which rules of professional conduct apply to the particular international arbitration preceding.  There is no single super national authority to oversee counsel conduct in international arbitration.  At least three jurisdictional codes of ethics are in play: the jurisdiction where counsel are licensed, the jurisdictional seat of the arbitration and the specific procedural rules governing the arbitration.


Beyond the codes of ethics there are also different legal traditions which affect multiple area including disclosures experts and witness preparation. 


Critical to success is a strategic approach to structuring the procedure in international arbitration.  It is important to remember that two fundamental principles govern international arbitration: party autonomy and procedural flexibility.


A detailed and practical discussion of the critical issue of choosing the right arbitrators was held.  It is critical to know the arbitrators profile and to know our case to make the best possible decision.


In the area of arbitrations with foreign reinsurers, excess carriers or policy holders the role of ARIA-US was discussed.  In these matters the applicable procedural law is a critical issue.


The take away is that international arbitration procedures require specialized knowledge and expertise and are full of danger and risk for the unaware and unprepared.



Appellate Law


Montreux Meeting – July 2017

As advertised, the joint presentation at the Montreux Meeting by the Appellate Law, International, and Commercial Litigation Sections generated robust discussion regarding several issues confronting the European Union Member States, the United Kingdom, and the United States. At least five countries were represented on the panel and in the audience, collectively. Lead by moderator Bill Vita, the most spirited exchange of views concerned the effect of Brexit on commercial litigation and enforcement of judgments. With the ink barely dry from “The Great Repeal Bill” that will be debated in the UK Parliament this Autumn, Stephen Carter gave the UK perspective on whether EU law, including precedent by the European Court of Justice, will apply in disputes filed in the UK after Brexit, among other issues. Jorge Angell provided stimulating counter-perspectives from the EU in general, and Spain in particular. Several audience members from other countries weighed in with insightful comments.


As a type of counter to the uncertainties facing future litigation in the EU and UK, Stephen Brake and Charlie Frazier presented a summary of key aspects and differences of the US judicial system at both the trial and appellate level. They focused on the consistent and well-settled aspects of that system and how they differ with the other jurisdictions. These differenced include the fundamental right to a jury trial and appeal as a matter of right in the US, followed by a frank discussion of the relatively higher cost of and greater length of time to resolve suits filed in the US. 


Amelia Island Meeting – February 24-28, 2018

Planning for the Section’s substantive-law presentation at the Amelia Island Meeting is well underway, with the topic, content, and panel essentially finalized. We will be joining with the Extra Contractual Liability Section to present


“Creating Favorable Precedent in Bad-Faith Litigation.”

The ultimate goal of the presentation will be to develop an understanding of the benefits of employing a proactive approach in creating favorable precedent, under which emerging issues are identified early and an ­active trial and appeal strategy is pursued in cases with the best facts and in the best jurisdictions. The discussion will focus on the roles played by in-house, trial, and appellate counsel in coordinating strategy by identify­ing, developing, and preserving the best arguments in the trial courts, issue selection and posturing on appeal and aggressively seeking settlement to avoid establishing bad precedent in prob­lem cases—cases with bad facts, in a problematic jurisdiction, or that did not present or preserve the best arguments.


Providing the in-house counsel point of view will be FDCC Past President Vicki Roberts, Vice-President and Counsel of Meadowbrook Insurance Group. Joining Vicki will be a bad-faith-litigation specialist and an appellate specialist, to be named soon.


You will not want to miss this one!



Civil Rights

The Types of Federal Civil Claims that can Arise when Police Officers use Force on Mentally Ill or Mentally Disabled Individuals

By:  Robert C. Lockwood, Esquire

Wilmer & Lee, P.A.

Huntsville, AL

This article is a portion of a presentation that was made at the Annual Meeting of the Federation of Defense and Corporate Counsel.  The complete presentation focused upon:  (1) law enforcement training programs which addressed the difficult issues that can arise from interactions between police and the mentally ill; (2) the types of claims that arise from such actions; and, (3) strategies for attorneys defending those claims.  FDCC members Kay Hodge and Jeff Lowe provided excellent discussions on those issues.


In preparation for the presentation, a quick Google search revealed a substantial number of news stories in a short period of time dealing with the use of force by law enforcement against the mentally ill:      

  • The Life of Jairon Brown: a Promising Future Beset by Mental Illness, Ended by Police Shooting, The Times-Picayune, April 24, 2017.
  • Police: Man Killed in Shoot-out Had History of Mental Health Issues, The York Daily Record, April 25, 2017.
  • Mother of Mentally Ill Man Fatally Shot by Boston Police Demands Justice, The Boston Globe, April 22, 2017.

One of the most-publicized cases involving interaction between mental illness and law enforcement is the Alan Pean case from Houston, Texas.  It was the subject of a New York Times Article (When the Hospital Fires the Bullet, New York Times, February 12, 2106) and an episode of the This American Life Podcast (My Damn Mind, This American Life, February 12, 2016).  In short, two off-duty Houston police officers worked as security guards at a hospital.  In the course of attempting to subdue Mr. Pean, who suffers from bipolar disorder, they shocked him with a tazer, shot him once and handcuffed him.  Mr. Pean filed suit in June 2016, and that case remains pending.


When mentally ill individuals are subjected to force at the hands of government actors, they (or their surviving family members) frequently take legal action.  A non-scientific review of case law demonstrates that the overwhelming majority of these cases wind up in federal court.  Certainly, plaintiffs frequently assert state law claims such as negligence, wantonness, assault, and intentional infliction of emotional distress.  But, plaintiffs invariably assert a claim for constitutional violations under 42 U.S.C. § 1983, disability discrimination under the Americans with Disabilities Act, or both statutes.  Presumably, those claims are asserted so frequently because of the ability to obtain attorneys’ fees, which are unavailable in many state law tort claims.  This article focuses on those federal claims.

I.   42 U.S.C. § 1983


A.  Fourth Amendment Excessive Force

The Fourth Amendment to the United States Constitution provides citizens with the right to be free from

unreasonable searches and seizures, which includes “the right to be free from the use of excessive force in the course of arrest.”  Saunders v. Duke, 766 F.3d 1262, 1266-67 (11th Cir. 2014).  As a result, most cases arising from the interaction of law enforcement and the mentally ill focus upon Fourth Amendment excessive force allegations.1

The use of force is evaluated under an objective reasonableness standard based upon the perspective of a reasonable officer on the scene.  Graham v. Conner, 490 U.S. 386, 396-97 (1989).  “Excessive force claims are necessarily fact-intensive; whether the force used is ‘excessive’ or ‘unreasonable’ depends on ‘the facts and circumstances of each particular case.’ ” Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009)(quoting Graham, 490 U.S. at 396).  In Graham, the Supreme Court set out three factors to consider in determining the reasonableness of force: (1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and, (3) and whether he is actively resisting arrest or attempting to evade arrest by flight. Graham, 490 U.S. at 396.


B.  Does a Plaintiff’s Mental Illness Change the Analysis?

Should a plaintiff with mental illness be treated differently from a “legitimate” criminal? In short, does the

use-of-force analysis change when the plaintiff suffers from diminished capacity?  At the same time, should we require police officers to be sidewalk-psychiatrists responsible for analyzing a perpetrator’s mental state?

Arguments can certainly be made both ways.  Nevertheless, there is a line of cases in which a plaintiff’s mental illness impacted the use-of-force analysis.   The Ninth Circuit Court of Appeals wants to have its cake and eat it too:

This Court has “refused to create two tracks of excessive force analysis, one for the mentally ill and one for serious criminals.” ... The Court has, however, “found that even when an emotionally disturbed individual is acting out and inviting officers to use deadly force to subdue him, the governmental interest in using such force is diminished by the fact that the officers are confronted ... with a mentally ill individual.”


Hughes v. Kisela, 841 F.3d 1081, 1086 (9th Cir. 2016).  The Seventh Circuit is more straightforward:


There is a commonsense need to mitigate force when apprehending a non-resisting suspect, particularly when the suspect is known to have diminished capacity. An arrestee may be physically unable to comply with police commands. See Smith, 295 F.3d at 770; see also Cyrus, 624 F.3d at 863 (noting that officer was “aware of [arrestee's] mental illness”); McAllister, 615 F.3d at 883 (finding knowledge of arrestee's diabetic condition relevant to excessive force analysis); Champion v. Outlook Nashville, Inc., 380 F.3d 893, 904 (6th Cir.2004), (“The diminished capacity of an unarmed detainee must be taken into account when assessing the amount of force exerted.”).


Phillips v. Community Ins. Corp., 678 F.3d 513, 526 (7th Cir. 2012).  Even the Fifth Circuit (no bastion of liberalism) has quoted the Ninth Circuit approvingly: “Although we have not had the occasion to consider qualified immunity in the context of the police killing a mentally ill individual, we note that the Ninth Circuit has held ‘the governmental interest in using [deadly] force is diminished by the fact that the officers are confronted, not with a person who has committed a serious crime against others, but with a mentally ill individual.”  Meadours v. Ermel, 483 F.3d 417, 423 n.5 (5th Cir. 2007).


                       Of the foregoing cases, the Ninth Circuit’s Hughes opinion comes the closest to requiring sidewalk psychoanalysis.  In that case, police responded to a “check welfare” call regarding a woman reportedly hacking a tree with a large knife.  Hughes, 841 F.3d at 1084.  Upon arrival, they found the woman acting erratically, and ordered her to drop the knife.  The woman ignored those commands and walked towards another, nearby, unarmed woman.  A police officer shot her four times.  In the course of finding the use of force excessive, the Court found that “there were sufficient indications of mental illness to diminish the governmental interest in using deadly force.”  Id. at 1086.


                      While mental illness can be taken into account, it cannot be used as an excuse for potentially deadly behavior.  For example, in Hassan v. City of Minneapolis, 489 F.3d 914 (8th Cir. 2007), police officers approached a man walking down the middle of the street with a machete and a tire iron.  As the man walked towards pedestrians, the officers used a taser twice, which was ineffective.  The man began to chase the officers with the machete and they tasered him again to no effect.  Ignoring multiple demands to drop the machete, the man advanced on the officers and hit a police car with the machete.  As he continued to advance waving the machete, the officers shot and killed him.  The representative for the estate argued that the use of force was unreasonable because the officers should have known that he was mentally ill, but that argument was rejected by the Eighth Circuit:


Hassan argues the officers should have known Jeilani's behavior indicated he was mentally ill, and thus, their conduct was unreasonable. However, even if Jeilani were mentally ill, Jeilani's mental state does not change the fact he posed a deadly threat to the officers and the public. “Knowledge of a person's disability simply cannot foreclose officers from protecting themselves, the disabled person, and the general public when faced with threatening conduct by the disabled individual.” Sanders, 474 F.3d at 527 (citing Bates ex rel. Johns v. Chesterfield County, Va., 216 F.3d 367, 372 (4th Cir.2000)).


Hassan, 489 F.3d at 919.


           Courts generally recognize the difficulties faced by officers dealing with the mentally ill:


Police officers face tough judgment calls about what to do with the mentally ill. Arrestees do not normally arrive at jail toting their medical records. Psychiatric problems do not always manifest themselves with clarity. And not even clear psychiatric problems always reveal their potential for serious harm—as here a heart attack. Perhaps those truths counsel in favor of more policies and training designed to minimize tragic injuries and deaths like Omar's. And perhaps police would be wise to err on the side of calling a doctor in cases like this one. But the United States Constitution and Ohio law do not elevate any deviation from wise policy into a cognizable lawsuit for money damages against the City or the relevant law enforcement officers.


Arrington-Bey v. City of Bedford Heights, No. 16-3317, 2017 WL 729730 at *5 (6th Cir. Feb. 24, 2017).             


C.  Qualified Immunity


                       The United States Supreme Court’s most-recent decision on qualified immunity demonstrates the hesitancy of the federal courts to second-guess split-second decisions of law enforcement officers.  See White v. Pauly, 137 S.Ct. 548 (2017).  White did not involve a mentally-ill plaintiff.  Nevertheless, it discussed the qualified immunity “of an officer who – having arrived late at an ongoing police action and having witnessed shots being fired by one of several individuals in a house surrounded by the officers – shoots and kills an armed occupant of the house without first giving a warning.”  White, 137 S.Ct. at 549.  The facts indicated that earlier-arriving officers failed to properly identify themselves and warn the victim.  Nevertheless, those alleged errors could not deprive the later-arriving officer of qualified immunity: “No settled Fourth Amendment principle requires that officer to second-guess the earlier steps already taken by his or her fellow officers in instances like the one White confronted here.”  Id. at 552.


                         In the vast majority of cases reviewed in preparation for this article, individual law enforcement officers prevailed in their assertions of qualified immunity.  Probably, this is because qualified immunity poses a substantial challenge to most plaintiffs.  Indeed, qualified immunity “protects all but the plainly incompetent and those who knowingly violate the law.”  Malley v. Briggs, 475 U.S. 335, 341 (1986).   The familiar analysis for qualified immunity requires a plaintiff to prove: (1) a violation of constitutional rights; and, (2) that the right violated was “clearly established.”  Given the substantial obstacles for overcoming qualified immunity, instead of focusing on “wins” for law enforcement, this presentation will focus on circumstances in which courts have denied summary judgment.


                        It appears that the most-frequent basis for denial of qualified immunity is the existence of conflicting facts.  For example, the Fifth Circuit affirmed a denial of summary judgment fairly summarily in Meadours v. Ermel, 483 F.3d 417 (5th Cir. 2007).  In that case, Bob Meadours’ sister called 911 and “made it clear she was seeking mental health assistance for her brother and not reporting a crime.”  Meadours, 483 F3d at 419.  Officers shot Mr. Meadours at least twice with beanbag rounds before he climbed on top of a doghouse, and then advanced on the officers with a screwdriver.  The officers then shot and killed Mr. Meadours.  The Court found that fact issues prevented a legal determination on the question of reasonableness of force: “for example, whether Meadours was first shot while charging at Officer Kominek, or while he was still atop the doghouse, posing no imminent threat.”  Id. at 432.  “The question of when and where Meadours was shot is integral to determining whether the officers’ actions were reasonable, and, consequently we conclude that the dispute is material.”  Id.


                        In Wate v. Kubler, 839 F.3d 1012 (11th Cir. 2016), James Barnes attended a baptism in the ocean, and while in the water, began flailing, flopping, thrusting his arms and body and yelling loudly about a demon.  The facts thereafter are extremely detailed.  Barnes initially engaged in a struggle with an Officer Tactuk in the water.  Tactuk ultimately handcuffed Barnes in an unorthodox manner with one arm pulled over his head.  He called for assistance and stated that he had a violent, mentally-ill person in custody.  Barnes continued to resist and Tactuk shot pepper spray in his eyes and struck him in the face multiple times.  Office Kenneth Kubler responded and helped to subdue Barnes.  In the course of doing so, Kubler used his taser five times.  Barnes died from complications of asphyxia with contributory conditions of blunt trauma and restraint.  The Eleventh Circuit affirmed the denial of qualified immunity for Officer Kubler on the grounds that “gratuitous use of force when a criminal suspect is not resisting constitutes excessive force.”  Wate, 839 F.3d at 1021.  Here are the facts relied upon by the Court to support that conclusion:

Construing the evidence in favor of Plaintiff, the unambiguous facts are that Barnes was no longer resisting at least after the first two tasings, and that Kubler's further use of the Taser was wholly unnecessary, and grossly disproportionate to the circumstances. Kubler had arrived on the scene six and a half minutes earlier, found Barnes bleeding from the face and observed Tactuk striking Barnes multiple times. The two officers immobilized Barnes face down on the sand. Barnes had no weapon and was awkwardly handcuffed, which, drawing inferences from the facts in a light favorable to Plaintiff, had a greater than normal effect of further neutralizing Barnes. The record establishes that while the first or maybe even the second Taser deployment may have been warranted, there is competent unambiguous evidence that by the third tasing, Barnes was handcuffed, immobile and still, such that a reasonable officer in Kubler's position would conclude that Barnes did not present a risk of flight, or a threat of danger to the officers or to the public. Under these circumstances, further shocks were unnecessary and grossly disproportionate, and a jury could find that Kubler's use of a Taser on Barnes five times was unreasonable force.

Id.  The Court further found that Barnes’s right was clearly established because “[a] reasonable officer in Kubler’s position and under these circumstances would have had fair warning that repeatedly deploying a Taser on Barnes, after he was handcuffed and had ceased resisting, was unconstitutionally excessive.”  Id.

                      Another interesting case dealing with excessive force is Weiland v. Palm Beach County Sheriff’s Office, 792 F.3d 1313 (11th Cir. 2015).  In that case, Christopher Weiland’s father made a “Baker Act” call to police, and informed the deputies that his son was bipolar, “acting up,” “on drugs,” and “probably had a gun.”  The complaint alleged:

Fleming and Johnson, guns drawn, approached the bedroom without calling out or identifying themselves. The deputies “came upon [Weiland] sitting on the edge of a bed looking down at a shotgun that lay loosely in his lap.” Suddenly and without warning, Johnson fired two rounds at Weiland, knocking him off the bed.  As Weiland lay on the floor bleeding and critically injured, Fleming tasered him. Then both Johnson and Fleming “physically beat and assault[ed] [Weiland] before finally handcuffing one of his hands to a dresser.” At no point did Weiland raise the shotgun from his lap or point it at the deputies.

Weiland, 792 F.3d at 1317.  Weiland is not a qualified immunity case.  Instead, the trial court dismissed based upon a failure to state a claim upon which relied can be granted.  A large part of the Weiland opinion chastises the plaintiff for shotgun pleading, and it appears that poor pleading was probably the underlying reason for dismissal.  Nevertheless, the Eleventh Circuit reversed dismissal, finding that the complaint asserted sufficient facts to state a claim for excessive force.

In Hobart v. Estrada, 582 Fed. App’x 348 (5th Cir. 2014), the Fifth Circuit reversed a summary judgment

based on qualified immunity where a mentally ill teenager was killed after his parents sought assistance in transporting him to the hospital.  In Hobart, Officer Jesus Estrada arrived at the scene before the Houston Crisis Intervention Team – which is trained on mental illness and tactics to verbally de-escalate situations involving persons with serious mental illness.  Rather than waiting for the CIT, Officer Estrada entered the house and spoke with the mother.  The trial court denied summary judgment on the basis of qualified immunity and the Fifth Circuit affirmed, based upon the mother’s version of the facts:

Accordingly, if a jury were to credit Mrs. Hobart's testimony, it could reasonably conclude that Officer Estrada faced only minor physical contact from Aaron, and that such contact ended and the two men were separated for multiple seconds prior to Officer Estrada pulling out his gun and shooting Aaron approximately six times. Under that factual scenario, Officer Estrada would lack probable cause to believe that Aaron posed a significant threat of death or serious physical injury to Officer Estrada or to others, and shooting Aaron in the manner that he did would be clearly excessive and unreasonable.

Hobart, 582 Fed. Ap’x at 355.  The Court further rejected an argument regarding Estrada’s subjective mental state: “As the district court noted, regardless of whether an officer’s mental state caused him to panic such that he unreasonably determined that a threat was present, that would not render his determination reasonable.”  Id.

                      The Sixth Circuit focused on the fact-intensive nature of the excessive force analysis in affirming denial of qualified immunity in Hanson v. City of Fairview Park, 349 Fed. Ap’x 70 (6th Cir. 2009).  In that case, Scott Hanson had a history of mental illness and stopped taking his medications.  Police officers responded to a complaint that Hanson was “out of control” and “trashing his house.”  Officer John Brewer found a car driven through the garage door and observed Hanson in his garage “walking back and forth like he’s agitated,” and with two golf clubs “beating something like a workbench.”  Brewer claimed that he called out to Hanson, who “charged” toward him, walking “briskly” with two golf clubs in his hands.  Brewer claimed that Hanson raised the golf clubs above his head and said: “I’m coming for you.”  Brewer claimed that he was unable to retreat because of the crashed car.  So, he fired his weapon and killed Hanson.  But, witnesses disputed whether Hanson raised the golf clubs The trial court denied summary judgment, finding fact issues of “whether Mr. Hanson had anything in his hands, whether Mr. Hanson was advancing when he was shot, and whether Officer Brewer was penned in by the PT Cruiser ....”  Hanson, 349 Fed. Ap’x at 73.  The Sixth Circuit agreed with that analysis:

While we agree that Officer Brewer's conduct was reasonable if the deceased was threatening Officer Brewer with raised golf clubs, if the deceased was threatening him but had lowered the clubs, the justification given by the officer may be no longer available. The reasonableness of defendant's conduct would then be a different question, and we do not have defendant's testimony to support the assertion that, given that factual scenario, shooting the decedent would be a reasonable response. If the deceased had no weapon in his hand, the immediate threat would be less and some lesser use of force might have been reasonable.

Id. at 76.

                     In Allen v. Muskogee, 119 F.3d 837 (10th Cir. 1997), the court focused on fact issues regarding an officer’s conduct immediately prior to the use of force.  Lieutenant Donald Smith responded to a call that Terry Allen was sitting in his car threatening suicide.  When he arrived, Mr. Allen was sitting in the driver’s seat with one foot out of the vehicle and a gun in his right hand on the console between seats.  Lt. Smith repeatedly told Allen to drop the gun.  He then tried to reach into the car and grab the gun while an Officer Bentley held Allen’s left arm and an Officer Farmer attempted to enter the car on the passenger side.  Mr. Allen reacted by pointing the gun at the officers.  Shots were exchanged and Allen was killed.  In considering the reasonableness of force, the Tenth Circuit will consider the “officer’s conduct prior to the suspect’s threat of force if the conduct is ‘immediately connected’ to the suspect’s threat of force.”  Allen, 119 F.3d at 840.  Without explicitly saying so, the Tenth Circuit essentially found that an officer’s use of force might not be reasonable if the officer provoked the victim’s threat of force.  In the Allen case, there was evidence that Lt. Smith “ran ‘screaming up to Mr. Allen’s car and immediately began shouting at Mr. Allen to get out of his car....” Id. at 841.  Because of those facts, the Tenth Circuit reversed summary judgment on qualified immunity: “Clearly, the officers’ preceding actions were so ‘immediately connected’ to Mr. Allen’s threat of force that they should be included in the reasonableness inquiry.  The differences in eyewitness testimony regarding the officers’ approach are therefore material factual disputes.”  Id.

                    Our newest Supreme Court Justice participated in a decision from the Tenth Circuit Court of Appeals last year.  Perea v. Baca, 817 F.3d 1198 (10th Cir. 2016).  In that case, Officers David Baca and Andrew Jarmillo were called to perform a “welfare check” on Jerry Perea, because his mother stated that he was on “very bad drugs” and she was afraid of what he might do.  The officers located Perea on his bicycle, and Officer Jaramillo pushed Perea off the bicycle.  They did not tell Perea why they were following him or why he was being seized, and they never asked Perea to halt or stop.  Perea struggled and Jaramillo ultimately tasered him ten times in less than two minutes.  While waiting for an ambulance, Perea stopped breathing and died.  The Court found that the Graham factors weighed against a finding of objective reasonableness.  Because they were merely performing a welfare check and not looking for Perea as a criminal suspect, the first factor (severity of the crime) weighed “heavily against the use of anything more than minimal force.”  Perea, 817 F.3d at 1202.  “Repeated use of the taser exceeded the minimal force that would be proportional to Perea’s crime.”  Id. at 1203.  The second factor (immediacy of the threat to officers or others) weighed against the officer because Perea was not “a danger to anyone other than himself before they attempted to affect the arrest.”  Id.  The final factor, whether Perea resisted arrest, weighed in favor of some use of force, but the “relevant inquiry” was “whether the taser use was reasonable and proportionate given Perea’s resistance.”  Id.

Even if Perea initially posed a threat to the officer that justified tasering him, the justification disappeared when Perea was under the officers’ control.  It is not reasonable for an officer to repeatedly use a taser against a subdued arrestee they know to be mentally ill, whose crime is minor, and who poses no threat to the officers or others.

Id. at 1204.  After finding the use of force excessive, the Court quickly dispensed with the “clearly established” analysis:

It is – and was at the time of Perea’s death – clearly established law in the Tenth Circuit that the use of disproportionate force to arrest an individual who is not suspected of committing a serious crime and who poses no threat to others constitutes excessive force. .... More specifically, it is likewise clearly established that officers may not continue to use force against a suspect who is effectively subdued.


D.        Municipal Liability for Failure to Train

                      Individual law enforcement officers are not the only parties at risk arising from a use of force against the mentally ill.  Plaintiffs also seek to hold municipalities liable for failure to adequately train officers on how to deal with the mentally ill.  Yet again, federal law makes it very difficult for failure to train claims to succeed.   The Supreme Court has recognized that a city’s culpability “is at its most tenuous where a claim turns on failure to train.”  Connick v. Thompson, 131 S.Ct. 1350, 1359 (2011). The first hurdle to municipal liability is the underlying claim itself.  If the plaintiff cannot demonstrate a constitutional violation by law enforcement, he/she has no claim for failure to train.  “[T]he inadequacy of police training may serve as a basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.”  City of Canton v. Harris, 489 U.S. 378, 388 (1989)  “Deliberate indifference can be established in two ways: by showing a widespread pattern of similar constitutional violations by untrained employees or by showing that the need for training was so obvious that a municipality’s failure to train its employees would result in a constitutional violation.”  Mingo v. City of Mobile, 502 Fed. Appx. 793, 799-800 (11th Cir. 2014).

                      Plaintiffs can rarely provide sufficient evidence to meet the “deliberate indifference” standard.2   So, again, rather than focusing on municipal “wins,” which are voluminous, this article will review cases that were allowed to proceed against municipalities for failure to train.   In Allen v. Muskogee (discussed above), the Tenth Circuit not only denied qualified immunity, but also found sufficient evidence to require a trial on failure to train.  In that case, the Muskogee Police Department training coordinator testified that “officers acted in accordance with their training in approaching the car and trying to take away the gun.”  Allen, 119 F.3d at 843.  The plaintiff countered with expert testimony establishing that such training was “wrong and out of sync with the rest of the country in the police profession.”  Id.  Thus, the court concluded “[w]hen viewed in the light most favorable to the plaintiff, the record contains evidence that the officers were trained to act recklessly in a manner that created a high risk of death.  The evidence is sufficient to support an inference that the need for different training was so obvious and the inadequacy so likely to result in violation of constitutional rights that the policymakers of the City could reasonably be said to have been deliberately indifferent to the need.”  Id. at 844.

The case before us is within the “narrow range of circumstances” recognized by Canton and left intact by Brown, under which a single violation of federal rights may be a highly predictable consequence of failure to train officers to handle recurring situations with an obvious potential for such a violation. The likelihood that officers will frequently have to deal with armed emotionally upset persons, and the predictability that officers trained to leave cover, approach, and attempt to disarm such persons will provoke a violent response, could justify a finding that the City's failure to properly train its officers reflected deliberate indifference to the obvious consequence of the City's choice. The likelihood of a violent response to this type of police action also may support an inference of causation—that the City's indifference led directly to the very consequence that was so predictable.

Id. at 845.
                      In Olsen v. Layton Hills Mall, 312 F.3d 1304, 1310 (10th Cir. 2002), Carl Kipp Olsen was arrested and transported to the Davis County Jail.  He told prebooking officers that he suffered from Obsessive Compulsive Disorder (“OCD”) and required medication to prevent panic attacks.  The officers took his medication from him and insisted that he remove his shoes and socks.  Mr. Olsen “recoiled” at the request and suffered a panic attack after acceding to the demand.  The Davis County Jail did not provide any training for handling individuals with OCD.  The Tenth Circuit found that Olsen provided sufficient facts to support deliberate indifference – primarily because of the prevalence of that condition: “It hardly bears repeating, but OCD does not rival Halley’s comet in its infrequency of appearance.  OCD occurs in more than two percent of the population .... Although a jury shall decide exactly to what extent it has burst into the mainstream, one could hardly deem it an obscure disorder.”  Olsen, 312 F.3d at 1319.

Given the frequency of the disorder, Davis County's scant procedures on dealing with mental illness and the prebooking officers' apparent ignorance to his requests for medication, a violation of federal rights is quite possibly a “ ‘plainly obvious' consequence” of Davis County's failure to train its prebooking officers to address the symptoms. Barney,143 F.3d at 1307 (internal citations omitted). And this is for a jury to decide. That OCD is relatively common and that the county had procedures in place for dealing with inmates with psychiatric disorders suggest that the municipality may have had constructive notice of the illness' prevalence and consequences. Accordingly, Appellant has raised a genuine issue of material fact as to whether the county had notice of and was deliberately indifferent in its failure to train prebooking officers on OCD.

Olsen, 312 F.3d at 1320.


                      A final interesting case is Cruz v. City of Laramie, 239 F.3d 1183 (10th Cir. 2001).  In that case, officers received a complaint that a man was running around naked.  They found him on an exterior landing of an apartment building, jumping up and down, yelling and kicking his legs in the air.  The officers persuaded him to come down the steps, but when he tried to walk past them, a struggle ensued.  In restraining Cruz, the officers used a “hog tie” restraint.  Cruz later died, arguably as a result of his position on the ground while restrained.  The Tenth Circuit found that use of a “hog tie” restraint was unconstitutional when used against individuals with diminished capacity:

We do not reach the question whether all hog-tie restraints constitute a constitutional violation per se, but hold that officers may not apply this technique when an individual's diminished capacity is apparent. This diminished capacity might result from severe intoxication, the influence of controlled substances, a discernible mental condition, or any other condition, apparent to the officers at the time, which would make the application of a hog-tie restraint likely to result in any significant risk to the individual's health or well-being. In such situations, an individual's condition mandates the use of less restrictive means for physical restraint.

Cruz, 239 F.3d at 1188.  The Court found that the individual officers were entitled to qualified immunity, because the right was not “clearly established.”  Nevertheless, the Court affirmed denial of summary judgment for the City of Laramie on a failure to train claim:

The court cited evidence that the City failed to train its officers on the use of hobble restraints and that the City put such restraints in its police cars. The court also noted that high ranking officials were aware of positional asphyxia attributable to hobble restraints and of a doctor's report stating that “deaths in police custody with hog-tie restraint[s] have been reported in medical literature a number of times.” The district court found that genuine issues of material fact were in dispute. The denial of summary judgment to the City therefore was appropriate.

Id. at 1191.

Americans with Disabilities Act


Because Section 1983 contains so many barriers to recovery, plaintiffs have sought relief through other

avenues of redress.  Most mental illnesses will probably rise to the level of a “disability” under the Americans with Disabilities Act.  Because the ADA is designed to eliminate discrimination against individuals with disabilities, many people who encounter force at the hands of law enforcement claim that they suffered impermissible discrimination.

A.    General Principles of the ADA


                      Title II of the Americans with Disabilities Act provides: “[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”  42 U.S.C. § 12132.   The United States Department of Justice has issued regulations implementing Title II’s prohibition against discrimination. Those regulations provide that “[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7).  Mentally ill individuals frequently claim that law enforcement officers should have made “reasonable modifications” to normal policies before implementing the use of force.  “Under the ADA[,] ... a discrimination claim based on an arrest situation usually arises in two different situations: (1) when police wrongfully arrest someone by mistaking his disability for criminal conduct, and (2) when police properly investigate and arrest someone with a disability for a crime unrelated to the disability and then fail to reasonably accommodate the disability in the course of the investigation or arrest.”  Joseph v. Bailum, No.16-cv-81176-BLOOM/Valle, 2017 WL 733393 at *6 (S.D. Fla. Feb. 24, 2017).    


B.        Does the ADA Apply to Encounters Between Law Enforcement and the Mentally Ill?


                    As an initial matter, it must be noted that the Fifth Circuit Court of Appeals takes the position that the ADA “does not apply to an officer's on-the-street responses to reported disturbances or other similar incidents, whether or not those calls involve subjects with mental disabilities, prior to the officer's securing the scene and ensuring that there is no threat to human life.”  Hainze v. Richards, 207 F.3d 795, 801 (5th Cir. 2000).  It appears that the Fifth Circuit is the only appellate court to adopt this bright-line rule.  Instead, other courts seem to balance the totality of circumstances in determining if there has been a violation. See Waller ex rel. Estate of Hunt v. City of Danville, 556 F.3d 171, 175 (4thCir.2009) (“Just as the constraints of time figure in what is required of police under the Fourth Amendment, they bear on what is reasonable under the ADA.”); Bircoll v. Miami–Dade County, 480 F.3d 1072, 1085 (11th Cir. 2007)(“The exigent circumstances presented by criminal activity and the already onerous tasks of police on the scene go more to the reasonableness of the requested ADA modification than whether the ADA applies in the first instance.”); Gohier v. Enright, 186 F.3d 1216, 1221 (10th Cir.1999) (rejecting “a broad rule categorically excluding arrests from the scope of Title II ....”).


 C.        Failure To Train Law Enforcement on Interacting with the Mentally Ill.


                     Just as they do under Section 1983, some plaintiffs attempt to use the ADA to impose liability on municipalities for failure to train law enforcement officers on interactions with the mentally ill.  At least one court has found that there is no “viable claim” for insufficient training under Title II of the ADA.  Buchanan v. Maine, 469 F.3d 158, 177 (1st Cir. 2006) (but “bypassing” the issue of whether Title II requires law enforcement to “draft policies and train officers on the needs of the mentally ill public.”)  To the extent that a failure to train claim may be viable, “[f]ailure to train claims under the ADA are generally analyzed under the same framework as failure to train claims brought against municipalities under 42 U.S.C. § 1983.”  Estate of Saylor v. Regal Cinemas, Inc., No. WMN-13-3089, 2016 WL 4721254 (D. Md. Sep. 9, 2016).     To that end:


The ADA and the Rehabilitation Act prevent public entities and the recipients of federal funding from discriminating against disabled individuals. See Barnes v. Gorman, 536 U.S. 181, 184–85, 122 S.Ct. 2097, 2100, 153 L.Ed.2d 230 (2002). To state a claim for compensatory damages under either statute, a private plaintiff must show that the defendant acted “with discriminatory intent.”  McCullum v. Orlando Reg.Healthcare Sys., Inc., 768 F.3d 1135, 1146–47 (11th Cir. 2014); see Delano–Pyle v. Victoria Cty., Tex., 302 F.3d 567, 574 (5th Cir. 2002) (“A plaintiff asserting a private cause of action for violations of the ADA or the RA may only recover compensatory damages upon a showing of intentional discrimination.”).  That requires proof the defendant either intentionally discriminated against the plaintiff or was “deliberately indifferent to his statutory rights.” McCullum, 768 F.3d at 1147 (quotation marks omitted). “To establish deliberate indifference, a plaintiff must show that the defendant knew that harm to a federally protected right was substantially likely and failed to act on that likelihood.” Id. (quotation marks and alteration omitted).


Boynton v. City of Tallahassee, 650 Fed. Appx. 654, 658 (11th Cir. 2016) 


D.        Immunity


                    The majority of circuits hold that there is no individual liability under Title II of the ADA.  See, e.g., Bowens v. Wetzel, No. 16-3036, 2017 WL 35712 at *2 (3d Cir. Jan. 4, 2017); Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001).  Nevertheless, there appears to be an interesting line of divergent cases in the Eighth Circuit.  In Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n.8 (8th Cir. 1999), the court noted that the defendants could “not be sued in their individual capacities directly under the provisions of Title II.”  Nevertheless, that court has more recently conducted an extensive analysis of qualified immunity as a defense in an ADA claim brought against police officers who used force against an individual suffering from a psychotic episode.  Roberts v. City of Omaha, 723 F.3d 966, 972 (8th Cir. 2013).  The Roberts court made no mention of whether individual liability was available under Title II and appeared to simply assume that it was – in the course of granting qualified immunity to the officers.


                     Finally, it should be noted that Eleventh Amendment immunity is not available to state actors under Title II.  Most employment lawyers are probably familiar with the Supreme Court’s decision in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), holding that Congress did not validly abrogate Eleventh Amendment immunity with regard to Title I of the ADA.  In contrast, the Court found that Congress did validly abrogate Eleventh Amendment immunity with regard to Title II in U.S. v. Georgia, 546 U.S. 151 (2006).


III.              Conclusion

                  Interactions between law enforcement and the mentally ill can lead to difficult legal issues.  Hopefully, this article can provide some assistance to attorneys confronted with legal claims. 

1There are certainly possible other claims.  In Holloway v. Purvis, No. 16-60406, 2017 WL 715895 (5th Cir. Feb. 22, 2017), the plaintiff argued that the attempt to seize him pursuant to a “mental writ statute” was a Fourth Amendment unreasonable seizure.  He argued that it amounted to a “warrantless arrest without probable cause,” but the Fifth Circuit rejected that argument.

2For example, in Valle v. City of Houston, 613 F.3d 536, 548 (5th Cir. 2010), the Court found that the plaintiff must show more than a potential for constitutional violations.  Instead, the plaintiff must “link this potential for constitutional violations with a pattern of actual violations sufficient to show deliberate indifference.”  “Prior instances must point to the specific violation in question; ‘notice of a pattern of similar violations is required.’ ... Although it is possible to infer that prior shootings may have involved excessive force, that inference is too tenuous to survive summary judgment.” 


Commercial Litigation


The Commercial Litigation Section teamed up with the Appellate Litigation Section in Montreux to present a thought-provoking panel discussion comparing litigation in Europe and North America.  The stellar panel consisted of Jorge Angell, from Madrid, Stephen Brake, from Boston, Stephen Carter, from London and Charlie Frazier from Dallas.  It was moderated by William Vita, from New York.  Thank you to our speakers, it was truly an interesting, lively and interactive panel.


We are now looking forward to the Winter Meeting in Amelia Island.  The beaches are beautiful and you’ll enjoy sitting under the palm trees, away from the cares of winter, so make your plans now!  The Winter Meeting will run from February 24 through February 28, 2018. 

Two section members, Rachel Reynolds and Olga Viera, have agreed to plan our Amelia presentation.  We will be joining with the Corporate Counsel Committee.  The presentation will explore the role of in-house counsel in alternative dispute resolution.  If you are interested in joining the planning group, please let us know. 

Huge thanks go out to Stephen Feldman for his tremendous leadership of our section during the last two years.  His tireless efforts resulted in excellent presentations and increased involvement by committee members.  Going forward, the Committee will be chaired by William Vita.  The Vice Chairs are Sonia Bjorkquist, Vicki Smith and Sean C. Griffin.  We are looking forward to an exciting and productive year.


Please contact us and get involved with the committee.  We need your help and ideas.


Construction Law 

I give a special thank you to Derek Lick, Matt Cairns, and Robert Moore for their fine presentation last week on Contractual Risk Transfer – The Changing World of Indemnification and Insurance in Construction Contracts and Litigation.

I welcome our new Vice Chair, Jay Old, who is featured below. And I thank our other Vice Chairs, Kevin Faley, Derek Lick, and Robert Moore for all of their assistance last year and for the support that I know that they will provide this year.



Quote of The Month

"It is every man's obligation to put back into the world at least the equivalent of what he takes out of it." -Albert Einstein


Featured Member


Jay Old:  Born in Beaumont, Texas. Educated at Texas A&M University and Texas Tech University School of Law, Jay began his career at a large national firm in Houston before moving home to raise his family. Jay’s practice has been varied and granted him the opportunity to work with, and against, some of the most seasoned, highly regarded lawyers in the country.

Jay is also committed to serving his profession. Jay is a former President of the Texas Association of Defense Counsel, the largest state-wide defense lawyer organization in the country. Jay chaired the Construction Law Section of the State Bar of Texas and served on numerous task forces appointed by both the State Bar and the Texas Supreme Court. He has earned an AV Rating by Martindale-Hubbell, is Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialist, a member of ABOTA, a Fellow in the Texas Bar Foundation and is an active member in DRI and the Federation of Defense and Corporate Counsel (“FDCC”).

Being a full-time lawyer does not prevent Jay from being active in his community. Recently, Jay ran for election to the United States Congress in the race to replace Ron Paul in the 14th Congressional District in Texas. Jay has served on the Advisory Board of Christus St. Elizabeth Hospital, has held numerous leadership roles in his church, the Beaumont Chamber of Commerce, Downtown Rotary Club of Beaumont, the Symphony of Southeast Texas and numerous other organizations. Jay’s wife, Ann Clary, is from Amarillo. Their daughter Helen Elizabeth is a graduate of the University of Virginia, and their son Jim, an Eagle Scout, is enrolled at the University of Virginia.


Upcoming Events

For the Winter meeting at Amelia Island, we are planning for the following:

“Reversing the Reptile Through Voir Dire”

Stuart Simon of AJC and Marc Young of Cokinos | Young and who is Chair of Trial Tactics, and Marc Harwell of Leitner, Williams, Dooley & Napolitan, PLLC and perhaps a few others will explore novel methods of questioning during voir dire to reveal the jurors who are most susceptible to reptile tactics by plaintiff’s counsel, to rehabilitate the venire panel, and to reveal to the panel the manipulation that counsel for the plaintiff has employed and in so doing use the reptile theory to bite the real reptile.


News and Noteworthy

Please send to Marc Harwell at notice of new noteworthy verdicts, settlements, decisions; awards, honors, or achievements; and articles for publication to the Construction Section.


Blog Post

Check out our section’s blog last month on the FDCC website. 


And each quarter thereafter, the Construction Section will continue to post an informative blog that provides practical advice and information that can only help you in your practice. If you have addressed through brief or otherwise a topic that is particularly relevant and insightful for the Construction Industry, please send to Marc Harwell for consideration.



If you know of an attorney who you think is worthy of the FDCC, please mention him or her to Marc, and he will assist with the admissions proposal process.


Data Breach, Privacy & Cyber Insurance Law

The FDCC’s newest section—Data Breach, Privacy, and Cyber Insurance—has planned an active year for 2017-18. Our section is led by Chair Steve Embry and Vice Chairs Chris Holecek, John Sinnott, and Marshall Wall. Feel free to contact any of the section leaders throughout the year to offer input or get involved.


We are planning a plenary presentation for the winter meeting in Amelia Island on cyber threats. Stay tuned for more information about this as the date approaches. The winter meeting is February 24-28, 2018 at the Omni Hotel and Resort in Amelia Island, Florida.


Here are some recent developments in the data breach, privacy, and cyber insurance:

  • The Internet of Things to Come in Cybersecurity: The Internet of Things is fraught with risk. The monetization of health care data has been a significant threat since as early as 2015. We are all endangered by such exploitation because pieces of anyone’s information can be sold for a handsome profit on the Dark Web.

  • Outsider or Insider: Who Will Cause Today’s Data Breach?: In today’s cybercrime landscape, threats come not only from all sides, but also from within.

  • How a Potent Defense Can Stifle Data-Breach Lawsuits by BusinessesConsumers aren’t the only plaintiffs in data-breach litigation. Businesses sue, too. When they do sue, businesses can be strong plaintiffs. This is because, unlike consumers, businesses usually can establish standing, since they’re more likely to have suffered direct financial loses that can be readily identified. This doesn’t mean, however, that a data-breach business plaintiff can waltz untouched through the Rule 12(b)(6) stage.

  • What to Know About Risk, Coverage Before You Buy Cyber Insurance: If a healthcare organization decides to insure itself against cyber-attacks, how do C-suite executives and others go about evaluating potential cybersecurity risks and insurance coverage in today’s chaotic threat landscape?

  • Data Breach Class Action Reinstated: Must plaintiffs allege actual identity theft from a data breach to avoid dismissal of their class action lawsuit? No, according to a recent opinion from a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit. 

One way to stay up to date on these issues is to participate in our section’s Slack page.



Drug, Device and Biotechnology

Montreux Summer 2017: 
Reminder that on Wednesday, July 26, 2017 at 7:45 a.m. we will hold the joint

The board has spoken and the 2017-18 DD&B Chair is Michael Walsh and the Vice Chairs are Joseph P.H. Babington, Michael J. Hurvitz, John W. Sinnott, Andrew B. Johnson and Christopher P. DePhillips. We anticipate an aggressive agenda for 2017-18 and look forward to being an important resource for our section members.


A word about Montreux: DD&B partnered with Transportation and Class Actions and had a great panel on a unique topic entitled: From Farm to Table or Felon to Table: FSMA - What is it and what it means for foreign suppliers. An Update on Implementation, Compliance, Litigation and Enforcement. The panel addressed domestic and international aspects of the new regulations under the Food Safety Modernization Act.  The speakers put a lot of effort into the program and did a great job presenting a complicated subject in a short period of time.


The Drug Device and Biotechnology section will be putting on a panel entitled: Opioids – The Fifth Vital Sign - Summary of Underlying Issues. According to the federal Department of Health and Human Services “[t]he United States is in the midst of a prescription opioid overdose epidemic. In 2014, more than 28,000 people died from opioid overdose, and at least half of those deaths involved a prescription opioid. The epidemic has significant civil and criminal liability implications for manufacturers, distributors, dispensers/formularies, payors, employers, physicians, hospitals and surgery centers. 

Because opioids do not discriminate based on geography or any social demographic and threaten death, the current “epidemic” is unlike anything we have seen before. Unlike other agents or products that have stirred up controversy, here the media and the public attribute moral “culpability” at every level, including academic medical, legislative, manufacturing, distribution, formulary/dispensing, hospital/medical facility, prescribing physician, payor, employer, patient and even family members.  In addition, beyond any medico-ethical or societal justification in looking for a solution, there are significant enforcement and litigation risks associated with these products that are reflected in the steady uptick in state and federal enforcement and private litigation against manufacturers, distributors, dispensers and prescribers of opioid products, including increasing creative theories of liability.  These actions include civil and criminal cases at the state, federal and even in tribal sovereign courts.  This is a trend with no end in sight.

The DD&B section will host its first Webinar for 2017 in September 7, 2017.  Click here and register today for the program entitled: Drug Device and Biotech: Shifting Political Winds –what does it mean for FDA regulated industry?

    • Regulatory trends: what was left undone under the Obama Administration and where is FDA heading?
    • Enforcement: recent enforcement and DOJ actions
    • Litigation trends: who is getting sued and what defensive theories are prevailing
    • Hot cases: discussion of some of the recent reported cases and what these cases may mean.

The speakers are

Jessica Davis, Roetzel, Columbus, Ohio
Michael D. Shalhoub, Goldberg Segalla
John W. Sinnott, Irwin Fritchie Urquhart & Moore LLC[1]
Michael Walsh, Strasburger & Price, LLP, Dallas

[1] John I’m happy to discuss regulatory trends. Here is a possible short blurb for that portion:

Regulatory trends—Possible changes in the FDA under President Trump and what they mean for drug, device, and biotechnology companies.



Employment Practices and Workplace Liability

For those unable to make the meeting in Montreux, the Section had an exciting discussion regarding Guns and Weeds, with plenty of audience participation despite the early hour.  Our panelists, Caroline Berdzik, Michelle Stewart, Amy Miletich, and Kay Hodge did a wonderful job leading the discussion regarding the risks that employers face with the new and expanding parking lot laws for gun owners, the legalization of marijuana on the state and local level, and the implications on employers and unions.  Please join me in thanking them for a great job.  If you are interested in the paper, please let us know.


On September 17-19, 2017, the Corporate Counsel Symposium will be held at the Hotel Sofitel in Philadelphia.  There will be a few employment presentations at CCS this year, including discussions regarding workplace violence, an update on the regulatory changes on the federal and agency levels, and areas of concern for corporate law departments.  Please sign up and invite your clients.  Remember that CCS is offering complimentary registration to all in-house counsel.

Healthcare Practice

On Monday, August 7, 2017, the United States Court of Appeals for the Eleventh Circuit affirmed the dismissal of a proposed class action lawsuit pending in the United States District Court for the Northern District of Georgia.  Two individuals that underwent heart surgery discovered small metallic particles in their brains after the surgery.  They brought suit on behalf of themselves and a putative class, alleging that the particles were metal shavings that had been shed during surgery by instruments manufactured and sold by Intuitive Surgical, Inc. and Intuitive Surgical Operations, Inc. 


The plaintiffs asserted several theories of negligence under Georgia law.  The district court granted the defendant’s 12(b)(6) motion to dismiss, ruling the amended complaint’s allegations did not state a claim for negligence under Georgia law.  The district court concluded that the plaintiffs had failed to sufficiently plead that they had suffered an injury due to the defendants’ alleged negligence.  The plaintiff’s contended that the district court’s conclusion was erroneous because the presence of metal shavings in the plaintiffs’ brains is a legally recognized injury in and of itself. 


A unanimous panel of the 11th Circuit Court of Appeals agreed with the district judge in their August 7, 2017 ruling.  The 11th Circuit Court stated the plaintiff’s factual allegations must be enough to raise a right to relief above the speculative level based upon the assumption that all of the allegations in the complaint are true.  The 11th Circuit Court said that, under Georgia law, the presence of metal shavings in the brain did not by itself constitute a legally recognized injury.  The judges also said plaintiffs' allegations that they "suffered and will continue to suffer physical, neurological and mental effects" was too vague and did not describe any particular symptoms.  The court also struck down plaintiffs' claims of financial harm, allegedly due to future medical costs and future wage loss because the plaintiffs failed to make clear what symptoms will interfere with their ability to work and cause a loss of wages.


The case is Nassar Cure et al v. Intuitive Surgical Inc et al, No. 17-10978 (11th Cir. 2017).


Insurance Coverage

Jay Sever is now leading the Insurance Coverage Section's planning for a program in Amelia Island.  Jay's panel will address the important issues emerging from the recent South Carolina Supreme Court decision in Harleysville Group Insurance v. Heritage Communities, Inc.  This decision suggests that an insurer must intervene to seek a differentiated verdict or risk being stuck with a general verdict.

Law Practice Management 

Here is hoping that all who attended the fabulous event of the Summer that was FDCC Montreux 2017 brought back wonderful memories, candid recollections, and detailed insight to share with all FDCC Members, present and future.  Special thanks to LPM Vice Chair John Quinn, as well as Sheryl Willert and FDCC Products Liability Section Chair, Matt Cairns for presenting In Advance of the Crisis: An Ounce of Prevention and Preparation.  As LPM Section Chair, I am deeply indebted to the panel and uniquely to Matt for stepping in for LPM Vice Chair, Mike Shalhoub at the last moment.  I understand that the presentation was both very well attended and received.  For those who did not get the chance to attend, please check back to the FDCC LPM Section web page in the near future, because the Panel's materials, loaded with very good, practical advice, will be posted for Members.

Were that not enough, in July of each year, we both lose and gain new Vice Chairs.  To this end, I want to thank the following outgoing LPM Vice Chairs for their service in the 2016-2017 Year - Mike Shalhoub, Chris DePhillips, and Edward Stewart.  To each, as they say where I am from - "Good numbers to y'all."  I am honored to work with returning Vice Chairs, John Quinn and John Trimble for the 2017-2018 Year.  Joining John, John, and me for 2017-2018 are new Vice Chairs, Marshall Wall, Thomas Dixon, and Lauren Curtis.  Welcome, y'all, and hold on, because it's going to be in the words of Old Crow Medicine Show - "a real humdinger!" in LPM for 2017-2018.

News and Noteworthy

FDCC Members - Law Practice Management is an area which touches and concerns ALL of us.  Thus, if something good comes to you or any FDCC Member as the result of hard work, or if you devise or implement a strategy or plan of action which really changes your practice or operation, I would love to share it with the FDCC.  Please send me, LPM Section Chair, Chris Steinmetz at notice of noteworthy verdicts, settlements, decisions, awards, honors, or achievements, and I will share it with all FDCC Members via the Newsletter.

Life, Health and Disability

In Williby v. Aetna Life Ins. Co., 2017 BL 284683, 9th Cir., No. 15-56394, 8/15/17, a federal appeals court ruled a California law making it harder for benefit plans to insulate themselves from judicial scrutiny through a discretionary clause applies differently depending on whether the plan is fully insured or self-funded by the employer.

The U.S. Court of Appeals for the Ninth Circuit ruled on Aug. 15 that California's ban on discretionary clauses in employee benefit plans doesn't apply to plans that are self-funded by the employer because the law is preempted by the Employee Retirement Income Security Act (“ERISA”). This decision appears to distinguish a decision issued in May, Orzechowski v. The Boeing Company Non-Union Long-Term Disability Plan, 9th Cir., No. 14-55919, 5/11/17, which held the California insurance law was not preempted by ERISA.

According to the Ninth Circuit, the different outcomes are because the benefit plans at issue in the two cases—both sponsored by Boeing Co. and administered by Aetna Life Insurance Co.—have different sources of funding. Boeing's long-term disability plan is fully insured by Aetna and thus subject to the California law making it easier for participants to challenge benefit denials in court. Boeing's short-term disability plan is funded by Boeing's general assets, which means the California law doesn't apply to it because of ERISA preemption, the court said.


Premises and Security Liability

The Premises and Security Liability section is looking forward to an active 2017-18 year. Our section Chair is John Sinnott and our Vice Chairs are Brad Box, Marty Kravitz, Michael Ludwig, and LaShawnda Jackson. Feel free to contact any of the section leaders throughout the year.


We are planning a presentation for the winter meeting in Amelia Island in conjunction with the Civil Rights and Public Entity Liability section on the implications of using police to provide security. Please contact John Sinnott if you have any input into this topic. The winter meeting is February 24-28, 2018 at the Omni Hotel and Resort in Amelia Island, Florida.


We are soliciting input into our presentation at the annual meeting in July/August 2018. If you have any topics and speakers you would like to suggest, please contact John Sinnott.


We will send an email to all section members in the near future outlining our plans for the upcoming year in more detail.

Property Insurance


Recent practices involving construction of multi-apartment units have moved to the area of all wood construction.  In recent months we have investigated two losses in excess of $50 million which were frighteningly similar in that they involve new construction that was approximatley 90% complete.  The construction is essentially entirely cured wood with no effective fire stopping or gypsum board included.  Likewise, in both cases the residential sprinkler system was not operational nor was there any effective fire or smoke detection, fire watch or security detail.  Both fires are suspicious in origin. 


In both cases the general contractor had responsibility for site safety and security.  In neither case was there any security program in place other than fencing the project.  Not surprisingly, subrogation was barred in both cases by the terms of the builder’s risk coverage, OCIP, CCIP and/or effective waivers of subrogation. 


Would it be sensible to reexamine these types of coverage programs with an eye towards encouraging general contractors and others to provide effective security and fire detection at ongoing construction projects before Certificates of Occupancy have been issued. 

Perhaps breach of the security obligation could be an exception to the waiver of subrogation.  We would suggest this be considered because of the magnitude of the losses that can and do result from the absence of effective security.  For example, the Protective Safeguards Endorsement includes as one of its items, security that must make hourly property reviews.  In both recent instances, the severity of the loss would likely have been substantially less if the fires were discovered in their incipient stages.



Toxic Tort & Environmental Law


At the Annual Meeting in Montreux, there was a joint presentation by the Energy Utilities Law and Toxic Tort and Environmental Law sections. This of course was in the toughest time slot, being 7:45 a.m. on the last day of the meeting and following many late nights.  The meeting was well attended and speakers G. Bruce Parkerson, J. Richard Caldwell Jr., and Michael J. O’Connor didn’t  disappoint those that got up to make the meeting. The presentation dealt with the aftermath of the gas pipeline explosion in San Bruno, California in September 2010, which resulted in 8 deaths and millions of dollars of property damage.  Pacific Gas and Electric was defending hundreds of civil lawsuits while at the same time being subject to investigation by both state and federal regulatory agencies.  Federal criminal charges were also brought against the company, which resulted in criminal convictions.  All of the presenters spoke in practical terms of the strategic decisions that have to be made by the company that would have direct impact on all areas of the legal defense. Issues such as cooperation with the prosecution and sacrificing of the well- being of employees, the relationship between the in-house counsel and outside counsel were all discussed.  The paper that was written and provided as one of the meeting materials makes for a good resource for those dealing with issues of defending in a situation of multiple legal fronts. On behalf of the sections, I would like to thank the presenters for the time in writing the paper and presenting on a very interesting and challenging situation for defense lawyers.


Be sure to contact Section Chair Beth Bauer at to volunteer to provide content for our monthly newsletter, blog posts, and Insights columns.  Additionally, if you are friendly and would like to be on a team to reach out to new members that express an interest in the TTEL section, please contact Beth.  If you enjoy coordinating social events, please volunteer to organize a social event at one of the upcoming meetings that our section members attend sponsored by sister organizations, such as DRI, or other bar associations, such as the ABA.  Again, contact Beth to volunteer.


We will be together again at the Winter Meeting in Amelia Island in late February, so block the time on your calendar to join us in that beautiful location.  In the meantime, FDCC offers several programs to add value to your membership for you and others in your firm.  For example, the webinar series is kicking off in September and FDCC deposition boot camps are gearing up for the fall.  Also this fall, we hope to see you at the Corporate Counsel Symposium in Philadelphia in September or at the I-3 in New York in November. 







Federation of Defense and Corporate Counsel - 275 N. York St., Suite 401, Elmhurst, IL 60126

more Calendar

3/24/2019 » 3/28/2019
2019 FDCC Winter Meeting - Austin, Texas

Featured Members
Charles MeyerO'Hagan Meyer, PLLC, Richmond, VA

Special Thanks

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