A Disemboweled Meat Grinder

[An] extruder is designed to separate liquid from solid mass. Materials are loaded into an area called the hopper. A hydraulic ram then compresses the materials, forcing them into a perforated discharge chute. At the bottom of the discharge chute, a hydraulically powered door (the plenum) lowers to hold the materials under pressure to condense the remaining materials….[These are used] for the purpose of extracting liquid from food waste to be used in hog feed.

Mr. Nereus Montemayor lost both of his legs above the knee when he entered into a jammed Bright Technologies high-density extruder to unjam the machine and a co-worker turned on the extruder with Mr. Montemayor inside it.

Was this life-changing accident sufficiently “foreseeable” to the manufacturer that a products liability lawsuit against it should survive its motion for summary judgment?

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Shumway Hall, Shattuck-St Mary's School, Faribault, Minnesota, photo by Jonathunder

Shumway Hall, Shattuck-St Mary’s School, Faribault, Minnesota, photo by Jonathunder

Update (July 22, 2016): On the heels of the recent post about the tragic death of Tristan Seehus, I note another lawsuit against a school based on the school’s alleged inaction in the face of alleged harm to students: Doe v. Shattuck-St. Mary’s School, originally discussed here a while ago (see below).

Shattuck-St. Mary’s has brought a motion for summary judgment, which was argued earlier this week before U.S. District Court Judge Ann D. Montgomery (D. Minn.) Here is the school’s legal argument in support of its motion. In a nutshell, the school argues that it did not have knowledge of its former teacher, Lynn Seibel’s criminal sexual conduct with Shattuck students, and that the teacher’s conduct was unforeseeable. The school also argues that a statute of limitation bars the claims and that plaintiff suffered no compensable damages. The plaintiffs’ response is, predictably, that the school did have knowledge, or that it should have, that the misconduct was foreseeable, that the statute of limitations does not bar plaintiffs’ claims, and that plaintiffs did suffer recoverable damages. Here is the plaintiffs’ response to Shattuck’s argument. And, finally, here is the school’s reply brief.

It is difficult to predict how this motion will fare although it is safe to say that the legal standard applicable to the movant, that is the school, can be difficult to attain.

Original post (June 5, 2015) (under headline,Shattuck-St. Mary’s & Institutional Damage Control) : “To say that our school’s approach to education is innovative is an understatement! We prove, in and out, to be nimble, attuned, and forward thinking.”

These talents are to be tested as the Faribault, Minnesota boarding school with a distinguished history of academic and athletic excellence extracts itself from alarming allegations and resulting lawsuits from several years of alleged sexual abuse at the school that, it is alleged, the school was aware of but failed to react to so as to prevent on-going abuse.

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The American Bar Association (ABA) tapped Minnesota Litigator as a top 100 law blog nationwide in 2012outstretched hand but since then, it has not made the list, even though I have gotten enormous amounts of positive feedback, mostly from Minnesota lawyers and even some judges (and also from my mother).

Kind of like public radio, you get Minnesota Litigator without having to pay for it but it feels so good to give back, don’t you think?

Take 2 minutes. Nominate Minnesota Litigator. Please. (Click the link here to nominate.)

Thank you

Tristan SeehusIn February, 2015, thirteen year-old Duluth native, Tristan Seehus, fatally shot himself with a gun.

Seehus went to a school where bullying allegedly occurred. A little more than a year before Tristan died, his father posted on Facebook that he was proud of Tristan for standing up to and fighting a schoolmate, who, he said, had been bullying a friend of Tristan’s. Yet a commenter to the November, 2013 post wondered, “why doesn’t [Tristan] stick up for me when that ‘one friend’ that he stuck up for bullies me?”

When a child dies by his own hand it is natural to look hard for causative factors.  Did Tristan die from his apparent easy access to a gun? Did he die from the pervasive cruelty of children perpetrated against other children, against people perceived of as “different,” and therefore somehow threatening? Did he die from a school that knew of bullying and did not take sufficient steps to stop it? Did Tristan die from a mental illness that overtook his will, overwhelmed his mind, and put him in so much pain that suicide seemed the only answer?

As hungry as we are for answers in such as awful case, can all the possible factors be parsed with clarity sufficient for a court of law?  Well-known victims’ rights lawyer, Lori Peterson, “The Law Dog,” has brought a lawsuit on behalf of Todd Seehus, Tristan’s father, seeking to hold the school district and school district officials liable for Tristan’s death.  Some readers may hail this as an effort to hold schools accountable for bullying that takes place on their watch, while others may condemn the effort as misdirected grief, finger-pointing, or misplaced guilt.   Deeply cynical readers may sense opportunism.

If discovery in this case goes forward, attitudes and beliefs we may be inclined to project on such an emotionally charged event may give way to facts and circumstances that can help us make the lives of children less traumatic. Stay tuned….

 

Data Code Computer BinaryLast week, I posted on “CAR,” computer assisted review, as a significant challenge to U.S. civil litigators’ business models. Then I came across a recent “order on discovery of hard copy and electronically stored information” in a civil case (linked here).

Looking back on still other Minnesota Litigator posts, I note scores of posts on the high cost of e-discovery.  Help is on the way.  This recent order, as with the CAR business, is the proverbial thin edge of the wedge — it augurs leaner, more focused, and more sophisticated approaches by lawyers, litigants, and the courts. The transformation and standardization of electronic review processes will mean greater efficiency and lower cost.

Here are a few of the key points of progress:

  • Express notice of a litigation hold at the outset of a case (editor’s note: a minor but positive development);
  • A default preference for electronic (rather than paper) production of documents (editor’s note: over time the “preference” will be a requirement);
  • A requirement that that documents containing words be produced in word-searchable form (“OCR”);
  • Express recognition of the potential use of “automated search strategies and technologies”;
  • De-duplication expressly identified and defined (editor’s note: though, unfortunately—if understandably—not presently required, due to the cost, which will go down);
  • Exclusion of generally defined “non-responsive system files” (editor’s note: document reviewers currently bill time dealing with unreviewable files)
  • Express requirement to keep grouped documents (“parent” and “child”) together;
  • Express requirement to deal at the outset with password protected files (requiring that passwords be provided); and
  • Highly specific formats for production of “documents” (i.e., generally, computer files) and “meta data” (electronic information attached to computer files but not normally or always visible to users).

What this and other efforts to analyze and reduce inefficiency in e-discovery mean is that, going forward, far less, and far better data will be produced than has been customary in many cases over the past several decades.

This is terrible news to the law firms that have raked-in literally hundreds of millions of dollars having thousands of miserable lawyers comb through digital dross which can now by systematically and cheaply eliminated. Great news for the rest of us and, as with CAR, these systems will only improve in the years ahead.

 

Thief Criminal Burgler RobberWe all understand employers chasing departing employees who downloaded company data on their way out the door. We all understand the interest in suing the disloyal rogues (from the employers’ perspective, at least). But do we want to “make a federal case out of it”? Should the feds be involved under these circumstances? When is federal criminal law triggered?

The question is too vague and general to answer in a vacuum but one can point to many instances when employers have tried to invoke the federal Computer Fraud and Abuse Act (CFAA) against departing employees without success (see previous posts here). Recognizing that the CFAA’s impetus, target, and focus, from the start, was “hacking” (infiltration into computer systems by third-parties, to either misappropriate data or damage the systems), courts across the country have been reluctant to use its “sweeping Internetpolicing [sic] mandate” to resolve day-to-day, computer-related employment disputes.

But businesses (and criminal prosecutors) have not given up on the CFAA as a means of pursuing purportedly malfeasant ex-employees. In a recent case out of the U.S. Court of Appeals for the Ninth Circuit, the Ninth Circuit, over a dissent, held that an ex-employee who gains access to his former employer’s computer system through a current employee’s username/password has accessed the system “without authorization” and has exposed himself to criminal liability under the federal CFAA.

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Creative Commons License. Photo by BoH

Creative Commons License. Photo by BoH

Update (July 13, 2016): An Alabama plaintiff claiming to have been the victim of a tort by a Minnesota-based entity does not get the benefit of Minnesota’s six-year statute of limitation but, rather, must live (and his case must die) with his state’s two-year statute.

Update (May 18, 2016): The original post, below, concerned a commercial dispute over a valuable contract ($72 million or more) to provide a revolving crane suitable for offshore oilfield support services. In brief, Plaintiff Blake allegedly lost a contract with non-party Oceanografia; some years later Blake allegedly discovered that the opportunity had been lost due to the tortious machinations of Defendant CarVal.

The key words there are “some years later.” Blake is an Alabama company. Alabama has a two-year statute of limitation (“SOL”) on tortious interference claims. Defendant CarVal is a Minnesota entity. Minnesota has a six-year SOL. So, in one of the many examples of civil litigation making for strange bedfellows, the Minnesota entity wants Alabama law to apply (to bar the lawsuit) but the Alabama company wants Minnesota law to apply (or, maybe, federal admiralty law?) to enable its lawsuit to go forward.

The U.S. District Court (D. Minn.) (Ericksen, J.) found that Alabama’s two-year limitation applied and so the judge held that Plaintiff’s case was time-barred.

According to Plaintiff-Appellant, however, the judge failed to do “any analysis of [Plaintiff] Blake Marine’s alternative arguments – that the Alabama two-year statute of limitations should be tolled based on the facts of this case, that an exception applies to the application of Alabama’s statute of limitations based on Minnesota statute, and whether laches applies pursuant to Federal maritime law.”

Of course, the U.S. Court of Appeals cannot resolve the issue on appeal in this case by simply expressing its preference between a two-year or a six-year SOL. Neither can the Court of Appeals simply defer to Judge Ericksen. It must base its decision on legal analysis. The questions before the Court are difficult and  well-briefed (see here, here, and here).

An aside: I also note in the Court record that both litigants got “notices of deficiency” from the 8th Circuit for problems with their briefs (here’s one and here’s another). If even the most preeminent lawyers in the country cannot follow the court’s administrivia rules, should we conclude that lawyers are sloppy or that courts are perhaps a bit too rigid and ruly?

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Hal9000Check out the linked “Protocol Regarding Computer Assisted Review” (“CAR,” or “HAL”) from the multi-district litigation concerned “Bair [sic] Hugger Forced Air Warming Products,” currently pending in the U.S. District Court for the District of Minnesota before U.S. District Court Judge Joan N. Ericksen.

Technical experts could explain this “protocol” and its underlying methodology far better than I but, in principle, the plan is to have “trained computers” run searches of some subset of the opposing parties’ computer data, seeking and identifying documents “relevant” to a case.

I imagine “training” computers to locate something like, “documents regarding research and development of the Dicey Widget, from Date1 to Date2, that would have been accessible (that is, received by, sent by, created by, or stored by) R&D Executive #s 1-5….”

If you’re interested in the use of this kind of cutting edge technology in large litigation, read the linked protocol.

As hands-off as the process sounds, there is, at least at the outset, a continuing need for human involvement.  In order to train HAL: (more…)

Minnesota Litigator - Stacks_of_moneyFor a battle that took place over a period of six months (late December, 2015 to late June, 2016) about whether or not Wells Fargo could have certain signage near the new Vikings football stadium, the Minnesota Vikings seek $655,020.00 for their attorney’s fees, plus $17,068.21 in costs. Does that sound reasonable to you? Who is to say? How would you know? How would I? How would the U.S. District Court for the District of Minnesota?

That was 2,237 hours of lawyer time, apparently, divided up unequally between six Hinshaw & Culbertson lawyers (senior associate Jessica Magnuson, H&C “capital partner,” Kevin Coan, and newly minted junior associate M. Annie Santos putting in about 2,000 of the 2,237 hours).

It will be interesting to see Wells Fargo’s response. I will go out on a limb and predict that it will NOT include any indication of Wells haircut-33187_640Fargo’s own lawyers’ hours or billing rates. (If one side argues that the other side’s fees are excessive, wouldn’t it be a relevant metric to divulge how much your side’s fees were? I don’t see that very often (if ever) in responses to fee petitions.) I will go out on a thicker limb and also predict that Wells Fargo will not respond by saying, “Looks good to us! They beat us fair and square and, although we respectfully disagree with the outcome, this lean and mean adversary earned every penny claimed!”

And, finally, I won’t hazard a prediction of whether we will have another example of the proverbial “Minnesota hair-cut” (examples here, here, here, and here).  Anyone want to hazard a guess as to how this will play out?

Not me. But while on the subject, I will take the opportunity to raise some questions for general reflection:

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Seborrheic_keratosis360px-Melanoma_vs_normal_mole_ABCD_rule_NCI_Visuals_OnlineCary Schirmer noticed something on his back, a “lesion,” some time before November, 2010. He went to a doctor, Dr. Wagner, who diagnosed it as benign seborrheic keratosis (see an example to the left) and the Dr. Wagner removed it using liquid nitrogen.

To the right, see examples of malignant melanoma.

Note the image to the left, the benign condition, and the image to the top right, a malignant melanoma. To me, they do not look all that different.

Dr. Wagner failed to get a biopsy of the tissue he removed in November, 2010.

One year later, Mr. Schirmer went back to Dr. Wagner, having noticed a “tender mass” in his right armpit. A subsequent biopsy determined that it was a malignant melanoma this time. Less than one year after that Mr. Schirmer died from that cancer.

If Dr. Wagner had run a biopsy of the 11/2010 lesion, what would it have shown? If, hypothetically, the biopsy confirmed no cancer, then Dr. Wagner’s work would not have prevented Mr. Schirmer’s unfortunate death.

We do not want our civil justice system to be used to coerce settlements from healthcare providers every time someone dies or has some adverse health event. On the other hand, we have an expectation of a baseline standard of care. What was the harm in running a biopsy? Why not? I thought MDs love to run tests.

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