nuclear_fireball1 bomb explosionUpdate (September 13, 2019): As regular readers know, Minnesota Litigator predicts outcomes of pending court decisions from time to time.

Below, we discuss Kedrowski v. Lycoming, a significant, hard-fought, and close case arising out of a serious physical injury in a plane crash. We predicted a result as the case was considered by the Minnesota Supreme Court but hedged the bet by betting only a nickel.

As far was we are concerned, we won the bet (predicting that the plaintiff would prevail on his appeal to the Minnesota Supreme Court).

On the other hand, it was not a clear win for the plaintiff. The Supreme Court ordered the case back to the district court for another trial (at least as to liability) rather than giving the plaintiff the benefit of his $27 million jury verdict (which the trial court had thrown out, prompting the appeal).

The Minnesota Supreme Court held that:

[T]he district court did not abuse its discretion by finding that [Plaintiff’s expert’s] testing was foundationally unreliable but did abuse its discretion by excluding [Plaintiff’s expert’s] entire causation opinion.

Here at p. 15.

The Supreme Court remanded to the Court of Appeals as to whether the jury verdict as to damages should stand or whether that must be retried, as well.

This was a clear win for the Plaintiff, Mr. Kedrowski, and his lawyers. The trial court and the court of appeals had thrown out his case; how the case will ultimately resolve is still unknown but Mr. Kedrowski’s case lives to fight another day. Congratulations to him and his formidable legal team (Eric J. Magnuson, Kelvin D. Collado, Robins Kaplan LLP; Thomas W. Fuller, Cortney S. LeNeave, Hunegs, LeNeave & Kvas, P.A.; and Stephen P. Watters, Watters Law Office).


“In loco parentis” is Latin and is literally translated “in the place of a parent.” It is a concept that dates back to old English law if not centuries earlier than that (see here at p.6).

When are school teachers acting “in the place of a parent” and what does that mean? What are the legal implications of acting in loco parentis?

Would this place affirmative responsibilities on teachers to intervene, for example, in cases of bullying?

Would this protect teachers from lawsuits for battery if they were to apply physical force on students (spanking or restraining)? (See here (Minnesota Statute, “Authorized Use of Force,” Subd. ((6))).

Historically, according to Prof. Susan Stuart, professor emerita of the Valparaiso University School of Law, this latter scenario has been where the in loco parentis concept has generally come up (as discussed in this linked scholarship) — as a defense rather than imposing any responsibility or obligation.

(However, Prof. Stuart also noted that “English education law did not confine the in loco parentis doctrine to disciplinary authority but interpreted this parental delegation also to require that the schoolmaster act as a ‘reasonably prudent and careful parent.'”)

But, of course, our culture has changed. Over the past 30-50 years, for example, spanking, for example, has gone from common-place to widely condemned for the discipline of children of any age by anyone, parent, teacher, or whoever.

How has the in loco parentis doctrine also changed over the years? (Prof. Stuart’s article’s focus is on student’s Fourth Amendment rights against unreasonable searches and seizures, the in loco parentis defense to such claims, and she advocates that the doctrine be “eradicated like the ubiquitous kudzu.” (Here at p.5).)

What conduct (if any) by school officials should be protected under the doctrine? What conduct (if any) is or should be compelled under the doctrine?

What has not changed for decades is the difficult position that schools, both administrators and teachers, are in with regard to their roles and responsibilities in the discipline and control of students.

This concept comes to mind in the recently filed lawsuit against Independent School District 112, a/k/a Eastern Carver County Schools by students of color for the school system administrators and teachers’ allegedly deficient response to allegedly long-standing and pervasive racism in the schools.

The Plaintiffs claims are brought under federal laws (42 U.S.C. § 1983; 42 U.S.C. § 2000d (pleading a violation of the constitutional right to equal protection; pleading racial discrimination in an institution that receives federal funding)) and under the Minnesota Human Rights Act (here, at pages 42-47).

We take no position on the merits of the lawsuit except to note a few things, which, in our view, are not open to good faith dispute: (1) African-Americans still face outrageous, pervasive, and profoundly harmful racism and hate throughout the United States; and (2) most if not all of the white students who perpetrate and perpetuate this hateful conduct learned it at home.

Putting aside the fact that some Minnesota school teachers and administrators are, in fact, racists, even those with the best intentions have to operate in this legally opaque and confusing in loco parentis role; they have to negotiate how to combat attitudes and behaviors taught to their students by the parents themselves.

One Productive Use of Hot Air; but, contra, see, e.g., Bloviating Lawyers.

Update (September 9, 2019): Has the hot air in Streambend Properties v. Ivy Tower Minneapolis finally breathed its last breath? (Please allow us a mixed metaphor from time to time.)

In the linked 6/3/19 petition for Minnesota Supreme Court review of the dismissal of the Plaintiff’s claims (affirmed by the intermediate court of appeals), Plaintiff appears to argue that the mere fact that very few breach of contract cases go to trial is a per se violation of constitutional rights of due process and equal protection (see here at p. 1).

The petition also refers to the Minnesota Court of Appeals’ “sua sponte shenanigans” (see here at p. 5).  The petition concludes, “The conduct of the district and appellate court is reprehensible. Shed those iron boots of oppression for humble sandals. Walk until your feet are heavy, but your soul is light. Tread the trail from Saul to Paul.”

Practice pointer: This may be even worse than hot air; it is borders on noxious. This is not legal argument.

For a stark contrast, see the response to the petition.

Unsurprisingly, the Minnesota Supreme Court denied the petition.

Update (November 17, 2017): The plaintiffs in the case described below (and Mr. Jerald Hammann, their owner) just will not give up. Hammann has pursued this case for five years and it has been a loser all the way along. The Eighth Circuit, seeing the case for the third time has thrown it out again. (Note that the appeal appears to have been submitted on Tuesday, Nov. 14, and the Eighth Circuit decision was filed two days later.) 

Update (February 3, 2014): On-going litigation for over five years and it appears to have been entirely in vain.  Recounting the saga is too painful for those who have had to preside over it. They have to refer back to earlier decisions in this labyrinth of futility rather than re-re-recite them.  

The U.S. District Court (D. Minn.) did not grant defendants’ pleas for justice (i.e., their requests for sanctions against the plaintiff for allegedly non-meritorious claims), though one can imagine their outrage given their years of defending against claims that could not ever get past motions to dismiss.

Original Post (August 12, 2013) (under the subject: “On A Frustrations of Civil Litigation and a Practice Pointer”): One of the greatest frustrations of civil litigation is that the advocacy/adversarial process sometimes seems to run directly counter to the obviously important ideal of clear communication.

A defense counsel asks a plaintiff’s counsel what proof the plaintiff has for his damages and, in response, gets a diatribe about the defendant’s callousness and dishonesty.  A judge asks a lawyer for any guiding precedent and, in response, gets a worthless lecture about an unpublished legal decision from some foreign court that the judge just implicitly asked the lawyer not to discuss.

Practice pointer:  No one is fooled.  Save your breath and everyone else’s precious time.


Megaphone Announcement

The ethics of legal blogging are somewhat hazy. (In the linked post, for example, a lawyer comments on the fact that the ABA appears to hold the position that a lawyer cannot disclose already public facts about a client’s case without the client’s consent.)

That being the case and LEVENTHAL pllc having previously represented a party (Ms. Bowlin) in the linked case decided this week by the Minnesota Supreme Court, we will keep our comments to a bare minimum.

McGuire v. Bowlin is important on issues related to Minnesota law on defamation — the breadth of who is (or is not) a “public official” or a “public figure.” Further, the blogger saeth nought.

Every year since 1894, as we head into coming school year, the United States of America has celebrated American workers.

These days, there are persistent, ubiquitous, and dire warnings that their days are numbered.

It seems that our jobs are less threatened by low wage off-shore workers, so feared over the past 30-40 years, than they are threatened by computer scientists and programs that they create to do away with the need for people — with their pesky family demands, illnesses, and other human failings — for countless jobs from astronauts to truck drivers.

Lawyers are far from immune from the threat of obsolescence. If you want to fight a parking ticket in the U.K. for example, from now on, you will probably go to this website before you will call a U.K. solicitor. And worldwide, you will probably take care of many legal matters via similar applications (forming companies, drafting wills, negotiating contracts, etc.).

So, take Labor Day off! Celebrate a day off and celebrate that you have a job (assuming you are one of the lucky ones). In years to come, the bitter irony is that many of us will not have the luxury of a job nor the treat of a day off.

Mr. Terrance Davis alleged that he was sexually abused by a priest, Father William Graham, and Mr. Davis brought a lawsuit against Father Graham arising out of the alleged sexual abuse.

Not only did Father Graham vigorously deny Mr. Davis’ allegations. He sued Mr. Davis for interfering with his employment with St. Michael’s Parish in the Diocese of Duluth (“tortious interference”) and he sued Mr. Davis for intentional infliction of emotional distress.

Mr. Davis sought to have Father Graham’s lawsuit thrown out of court. That effort failed to dispose of the case.

The case went to a jury and the jury found in favor of the accused pedophile, Father Graham, awarding him $13,500 on his tortious interference claim. Mr. Davis appealed the adverse jury verdict (always a tough sell) and his appeal was unsuccessful.

Assuming we take Mr. Davis at his word as to his allegations (which seem corroborated by evidence of his reporting the abuse, alleged to have occurred in 1977, repeatedly to several people over the decades (see here at page 4)), this has to have been a devastating loss to Mr. Davis.

The Minnesota Court of Appeals made the loss all the more frustrating by seeming to lay the blame, at least in part, on the the lawyering:

In summary, we stress that appellate courts want to reach the merits of the issues on appeal. However, the party seeking relief bears the burden of providing the appellate court with an adequate record. The lack of an adequate record in this case prevents this court from addressing appellant’s arguments in full.

Minnesota Court of Appeals Unpublished Decision at p. 11

The Court of Appeals seems to have been particularly troubled by the absence in the record on appeal of the diocese’s internal investigative report. See here at p. 8. This internal investigative report appears to have included an internal investigative board conclusion that the board “believe[d] the accusations of T.J. Davis to be credible and that Father not be returned to ministry.”

The trial court excluded “evidence relating to the Catholic Church’s internal investigation.”

Davis made no offer of proof showing how evidence concerning the diocese’s internal investigation would support his defense, and the record on appeal does not include a copy of the investigative report.

Minnesota Court of Appeals Unpublished Decision at p. 8

We covered a related challenge just days ago — the challenge of preserving objections for appeal. These pointers cannot be emphasized enough.

Triple Silver Disaster, Andy Warhol (at the Wadsworth Atheneum, Hartford, CT)

Update (August 23, 2019): After three years of litigation, U.S. District Court Judge Eric C. Tostrud (D. Minn.) ruled this week that Plaintiff Elizabeth Shank has no evidence of “deliberate indifference” by Carleton College in dealing with her alleged two rapes and, on that basis, awarded Carleton College summary judgment.

The case is sad, to be sure, but this result, in our view is correct (if belated). If there is an appeal, it will fail, we predict.

Perhaps the most important point of this terrible and extremely expensive ordeal (for both Plaintiff and the Defendant) is that a relatively large institution like Carleton College can battle (and win) against such claims. The huge majority of individuals in our society cannot. We have a fine civil justice system (so long as you can afford it). For most of us, you lose even if you win; the only question is how devastating the loss will be.

Update (March 13, 2019): In the thread of posts, below, we have made our views of the case of Shank v. Carleton College clear. Some might even say we’ve been “shrill” or that we’re inappropriately “taking sides.” (We cop to “taking sides” but reject that it is inappropriate or unwarranted.)

Linked here is Ms. Shank’s memorandum of law in opposition to Carleton’s motion for summary judgment.

In our view, this lawsuit is an injustice and a disaster. The suggestion that Carleton College intentionally inflicted emotional distress on Ms. Shank or that its actions (or omissions) could result in punitive damages is preposterous and irresponsible over-reaching. (As pointed out in the title of this post, Ms. Shank sought a one-on-one meeting with an alleged rapist. A Carleton employee allegedly first introduced the idea, according to Ms. Shank. Ms. Shank seeks to impose punitive damages on the college for acquiescing to what, no one contests, was her own request.)

Maybe there is a claim that the college’s acts or omissions in dealing with Ms. Shank fell short or triggered liability for negligence or federal law governing educational institutions (though we think not). (Few will deny that colleges are aware of under-age drinking, that they do not go to great lengths to stop it, and that drinking is a huge causal factor in many sexual assaults. On the other hand, can we not agree that college students bear some responsibility (almost all of the responsibility) for their own under-age drinking? Or that the correlation between under-age drinking and sexual assault is quite far from 1:1?)

To demonize the school for “deliberate indifference” or “intentional infliction of emotional distress” under the undisputed facts of this litigation, however, is, in our view, beyond the pale.

Update (February 18, 2019) (under the headline: Carleton College is Against the Ropes But Way too Soon to Call the Fight): We will be interested in the response to Carleton College’s motion for summary judgment in the case brought against the college by a former Carleton student, Ms. Elizabeth Shank. In the posts below, we discuss Ms. Shank’s claims that arise from two different alleged sexual assaults she allegedly experienced at Carleton at the hands of two different fellow students (one during her very first week at the school, the other a year-and-a-half later).

As we point out in the previous post, below, colleges are placed in an unwinnable situation where they have to balance the interests of accusers, the accused, fellow students, parents, faculty, alumni, the public (including law enforcement) (and undoubtedly additional stakeholders clever readers can list). They want, of course, to placate every stakeholder. This might be inherently impossible in many cases, most cases, or, maybe even all cases.

Most importantly, colleges won’t know exactly what happened (on 9/12/11 and the Spring of 2013 in the case of Ms. Shank). The only certainties are (1)  they will never know; and (2) what happened will be sharply contested.

We have taken the position consistently in this case that Ms. Shank’s claim against Carleton College for “intentional emotional distress” is preposterous and that her claim for punitive damages against the college is as well. Nevertheless, the U.S. District Court (D. Minn.), to date, has refused to throw out either of these claims.

Will Carleton face the triple silver disaster: 1) the threat of a trial, on (2) a claim of intentional infliction of emotional distress, and (3) the threat of punitive damages? If so, we hope that Carleton will take it to and through trial and then, if unsuccessful, will appeal. There are limits as to what a college can do. In our view, the implications of the claims in this case go far beyond that.


Update (August 22, 2019): The other shoe dropped.

U.S. Mag. Judge Hildy Bowbeer (D. Minn.) issued an 81-page Report and Recommendation (“R&R”) on multiple motions for sanctions against Defendant Procura. For those civil litigator readers, when your clients wonder why U.S. civil litigation is so expensive, part of your explanation should be that some lawyers and some litigants behave badly and this imposes tremendous burden and expense on the court system and on the litigants. So it is with Procura’s conduct in a case we’ve been following for some months now.

Go to page 18-29 of Judge Bowbeer’s R&R for directions on how NOT to prepare Fed. R. Civ. P. 30(b)(6) deponents for their depositions (that is, deponents who are produced to offer testimony of institutional knowledge — not their own knowledge but knowledge of a corporate entity (for which they are given subject matter areas for testimony in advance of the deposition)).

Hint: when asked, “What did you do to prepare for this area of inquiry, which we disclosed would be a subject for this deposition,” it would be good if your designated witnesses do not answer, “Nothing.” (“This lack of any attempt to prepare for the deposition by gathering information not
within the immediate memory of the witnesses themselves was a clear abdication of Procura’s responsibility under Fed. R. Civ. P. 30(b)(6)” (at page 44)).

Original post (July 31, 2019) (under the headline “Prairie River Home Care v. Procura: The Other Shoe Will Drop.”): Recent readers of Minnesota Litigator will recognize the case name above, a case we have highlighted for lessons in how NOT to do civil litigation. Specifically, it seems to us that the case has gone very badly for Defendant Procura and the ways it has defended the case against it have not seemed particularly clever (an indefensible defense, one might say).

This week, U.S. Magistrate Judge Hildy Bowbeer issued a Report and Recommendation (“R&R”) on a motion for sanctions against Procura. To our disappointment, however, Judge Bowbeer issued her R&R under seal (that is, denying public access).

But there are some pretty strong signs that the order is unfavorable for Procura. Specifically, it appears that Judge Bowbeer issued the R&R under seal to give the litigants a chance to propose redactions or a confidentiality designation. Adversaries Prairie Home and Salo Solutions wasted no time in notifying the Court that they are perfectly happy with full public disclosure of the R&R…(see here and here). So far, Procura has not weighed in.

We look forward to the unsealing of the R&R and hope that it is completely unsealed.

Court records are presumptively public. We make exceptions for issues of national security, to protect crime victims, to protect children, to protect litigants when publication of the underlying private facts present a high risk of stigma or trauma. But “mere embarrassment or a desire to avoid the potential criticism attendant to litigation will not suffice.” What have we here? Stay tuned…

Some years ago, we coined the term “whack-a-mole on steroids” to describe civil litigation. The central point is that trial is often the culmination of 1-2 years of work — sometimes far more, rarely much less.

Not 1-2 years of full-time work and focus, after which, one can imagine, a good trial lawyer would retain intimate knowledge of all of the details of a case. Rather, trials happen after intermittent flurries of work over a few years, interspersed with work on other cases, of course, with inactive intervening months. In short, it can be difficult for almost any trial lawyer to retain all or even most of the factual details.

Further, most civil trial lawyers only experience trials say, once in 5 years or so. On top of the thousands of facts of a particular case, there are the details of trial procedure (as opposed to all of the other rules of civil procedure) to keep track of. And the consequences of failing to adhere to a rule can be fatal to one’s case (or one’s appeal).

On top of all this, imagine trial lawyers substituting into a case right before trial…

Take Wright v. Nuvola, LLC (please). The underlying facts of this lawsuit are extraordinary and extraordinarily strange. Plaintiff Morgan Wright alleged a brutal rape by University of Minnesota professor Francesco Parisi. Parisi admanantly denied the allegations and, consistent with his denial, were many pieces of evidence (e.g., Ms. Wright’s failure to report these horrible allegations for over a year, her request to her doctor that the doctor back-date medical records, et al.).

Putting all of this aside, though, for purposes of our practice pointer, the critical issue is that Ms. Wright’s trial counsel sought to add witnesses at trial, was denied, and sought to appeal that decision. She lost that opportunity because her lawyers missed a prerequisite.

Wright failed to preserve her challenge to the district court’s denial of her motion to call additional witnesses. Wright made the request more than one month after the trial had started. The parties did not submit formal briefing, and the district court issued an order denying Wright’s request. After the case was submitted for a decision and the district court issued its findings of fact, Wright did not file a motion for a new trial. Because Wright requested permission to call additional witnesses after the trial began and did not file a posttrial motion for a new trial, she failed to preserve her challenge to the district court’s denial of her request, and the issue is outside the scope of our review.

Wright v. Nuvola at al. at p. 10.

Undoubtedly, it is not intuitive to ask a judge for a new trial based on a ruling that the judge made right before or during trial; what is the likelihood that the trial judge will reverse herself? The requirement of requesting a new trial seems pointless and futile. Regardless, this is one of the many rules that trial lawyers must keep in mind in addition to the many other possibly overwhelming demands of trial.

(In Ms. Morgan’s case, we posit that the loss of this issue on appeal would have made no difference. The case was the classic “he said/she said” case; it boiled down to credibility determinations of two witnesses, one of whom had to have been lying (or mistaken in a way that most would find dumbfounding) and Ms. Morgan’s credibility was a serious issue.

Update (August 19, 2019): This past week U.S. District Court Judge Patrick J. Schiltz (D. Minn.) weighed in on the somewhat confusing doctrine of good faith and fair dealing in Minnesota in the context of an insurance coverage dispute, a doctrine that we discussed in the original post below.

As we discussed in the post below, the “doctrine of good faith and fair dealing” applies to every contract in Minnesota just so long as you define “every contract” to mean “not every contract.”

But we can all agree that the doctrine plainly applies in Minnesota to insurance contracts.

As important as when the doctrine applies is the follow-up: what does it mean? This is the question that Judge Schiltz addressed this past week.

The doctrine applies when (1) “when a party to a contract unjustifiably hinder the other party’s performance of the contract,” or (2) “when a party to a contract acts honestly, maliciously, or otherwise in subjective bad faith in exercising unqualified discretion that is given to that party in the contract.” (See here at p. 3.)

Judge Schiltz found that neither of these scenarios applied in Selective Insurance v. Sela, the case that Judge Schiltz is presiding over. Nevertheless, at the urging of the insured’s lawyers, Judge Schiltz analyzed whether the doctrine apply more broadly, when insurers fail to act “reasonably” or “properly” in denying insurance coverage.

The doctrine does not apply in this vague and broader context, Judge Schiltz ruled. This is not a difficult question superficially but Judge Schiltz nevertheless took the time to analyze the issue to try to clear up Minnesota case law, muddled by an unpublished Minnesota court of appeals case: Western National Mutual Insurance Company v. Prospect Foundry, No. A17‐0992, 2018 WL 1787687 (Minn. Ct. App. Apr. 16, 2018) (see here at p.8 et seq.)

To cut to the chase, Judge Schiltz, “with due respect,” pointed out the myriad infirmities in the Prospect Foundrey case and rejected its analysis.

Practice pointer: Sue insurance companies for unreasonable claims handling through Minn. Stat. § 604.18, “Minnesota’s first-party bad faith statute,” not based on the covenant of good faith and fair dealing.

Update (June 25, 2018): In the discussion in our original post below, we quoted a U.S. federal district court (D. Minn.), quoting a 1995 Minnesota Supreme Court decision (quoting a 1984 Minnesota Supreme Court decision) for the following proposition (at page 15): “Under Minnesota law, every contract includes an implied covenant of good faith and fair dealing…”

It has been a while since we have construed the word, “every,” but it seems all-inclusive, does it not? It seems synonymous with “all possible,” or “the entire set of,” right?

On the other hand, a recent decision in the U.S. federal district court (D. Minn.), quotes a 1986 Minnesota Supreme Court decision in support of the proposition that Minnesota courts “have not read an implied covenant of good faith and fair dealing into employment contracts.”

So, in Minnesota, apparently “every contract” means “every contract except employment contracts.”

Let’s use the shorthand, “common decency” for this idea of “the implied covenant of good faith and fair dealing.” Why would Minnesota courts require that all contracts are built on a foundation of “common decency” except employment contracts? Doesn’t it seem strange that employers, of all actors in commercial and personal lives, should be “off the hook” when it comes to “common decency”?