Judge Barrett on Torts

This section does not include torts committed by law enforcement or government officials, or torts created entirely by statute. As always, please read the overview for context.

Boogaard v. National Hockey League (2018)

Derek Boogaard played professional hockey for the NHL. During his time playing for the Minnesota Wild, Mr. Boogaard sustained many injuries, for which the team’s doctors prescribed pain-killers. Boogaard developed an addiction to these drugs and to sleeping-pills. Although the NHL’s agreement with its players obliged it to treat Boogaard, its efforts to do so were inadequate and frequently undermined by its own medical staff. Boogaard ultimately suffered a fatal overdose while in rehab. [2-4]

The litigation that followed was complex. In short: Boogaard’s parents sued in state court; the NHL removed to federal court on grounds of complete pre-emption; many rounds of motion practice occurred; the Boogaards twice amended their complaint; the NHL argued that the Boogaards’ claims were all prohibited and that they had failed to state a claim anyway; the Boogaards only responded to the former; and Judge Gary Feinerman dismissed the complaint on both grounds. [4-7]

Judge Barrett, writing for the Court of Appeals for the 7th Circuit, first addressed jurisdiction. After evading the issue in their first brief, drawing the ire of Judge Barrett, the Boogaards argued that federal courts lacked jurisdiction because federal law did not completely pre-empt their state law claims. Judge Barrett disagreed. At least some of the Boogaards’ claims arose from the NHL’s obligations under an agreement with its players’ union, which was integrated into the collective bargaining agreement between the two. These claims were therefore wholly pre-empted by section 301 of the Labor Management Relations Act. Judge Barrett held that this created federal-question jurisdiction over those claims and the district court could (as it did) exercise supplemental jurisdiction over the remaining claims. [8-11]

The Boogaards argued many issues of civil procedure and the law of many different states. [2] These arguments chiefly addressed dismissal for failing to comply with the requirements of a wrongful death action under Minnesota law. [5-6, note 2 on the same pages, and 11] The district court had also dismissed their complaint for failure to state a claim, however, because the Boogaards had forfeited any argument to the contrary by not raising them in response to the NHL’s motion to dismiss. Judge Barrett held that this alternative holding, if within the court’s discretion, would support the judgment. [11] Judge Barrett also held that this alternative holding had been within the court’s discretion: the district court had not previously addressed whether the Boogaards had stated a claim under applicable state law (whichever that was), so the Boogaards were wrong to think that the NHL was relitigating claims that had already failed, but even if the issue had already been decided they should have clarified the issue in their response. [12-13] Judge Barrett therefore affirmed dismissal on these grounds and did not permit the Boogaards to amend their complaint, because amendment would not cure forfeiture and they had not adequately explained the amendments they would make.

Dalton v. Teva North America (2018)

Cheryl Dalton asked her doctor to remove her IUD, which had been manufactured by Teva. The IUD was broken before the procedure or broke during the procedure. Either way, part of it stuck in her uterus. A hysterectomy was the only way to remove it. [2]

Ms. Dalton sued Teva under various theories of products liability. Dalton did not intend to introduce any expert testimony on the subject of causation, arguing that it was so straightforward as to be unnecessary. Judge Richard Young disagreed and granted summary judgment to Teva. [2-3]

After chastising the parties at length for their failure to properly address the issue, Judge Barrett wrote for the Court of Appeals that the requirements of diversity jurisdiction were satisfied, so federal courts did have jurisdiction over the suit. [3-5] Judge Barrett then addressed the merits. Under the Indiana Products Liability Act, Dalton had to prove that the alleged defect was the proximate cause of her injuries, which typically required expert testimony. Dalton argued that whether Teva’s error had caused the IUD to break was within the knowledge of a lay juror, removing the need for expert testimony. Judge Barrett opined that there were many other reasons the IUD might have broken and that preventing such speculation was the reason that expert testimony was required. Judge Barrett therefore held that, by failing to introduce expert testimony on causation, Dalton had presented legally insufficient proof under all of her theories. [5-8]

J.S.T. Corp. v. Foxconn Interconnect Technology Ltd. (2020)

J.S.T. Corp. was a company based in Illinois. At the request of Bosch, it designed and built an electrical device called a 183-pin connector, which Bosch used in car parts that it sold to General Motors. For years, J.S.T. alone manufactured the component and sold it to Bosch. Bosch then gulled J.S.T. into giving it the schematics for the component, which it passed on to J.S.T.’s competitors. Those competitors accepted the blue-prints, knowing that they had been illicitly acquired, and manufactured the component themselves. They then sold it to Bosch at a lower price than J.S.T. had (although J.S.T. had, understandably, stopped building the component for Bosch). [2-3]

When J.S.T. learned of Bosch’s underhandedness, it brought many lawsuits. This one was filed in Illinois against some of the competitors, TEC and Foxconn, alleging theft of trade secrets and unjust enrichment. Judge Virginia Kendall dismissed the case for lack of personal jurisdiction. [3-4]

The question before the Court of Appeals for the 7th Circuit was a simple one: did a federal court have specific personal jurisdiction over the dispute? None of the defendants were located in Illinois (except that two of the Foxconn companies had satellite offices there, which performed business unrelated to the lawsuit). They did not manufacture the component or sell it to Bosch in Illinois. General Motors sold cars containing the component across the United States, however, and that included Illinois. [4] Judge Barrett wrote for the Court that this was not enough. In the 7th Circuit, the stream-of-commerce theory remained a valid theory of liability for personal jurisdiction in products liability cases. [5-6] In products liability, however, the sale of the product was inherently connected to the lawsuit. This was not true of trade secret misappropriation. The defendants had received the schematics, designed and built their knock-offs, and sold their product to Bosch elsewhere. Judge Barrett held that GM selling its cars in Illinois was too attenuated a connection to the lawsuit (although she hinted that this might have been different if GM had known of the trade secret misappropriation). [6-9 and note 2 on page 9]

J.S.T. argued that harm to the plaintiff was an element of trade secret misappropriation and that the harm to J.S.T. was caused in part by the down-stream sales in Illinois. Therefore, it argued, an element of the tort had been committed in Illinois. Judge Barrett stressed, citing Walden v. Fiore, that the focus of the specific jurisdiction analysis is on the defendants’ conduct. Their conduct that had harmed J.S.T. was their interactions with Bosch, none of which took place in Illinois. Again, GM’s sales were too attenuated. [9-11]

J.S.T. had also asserted unjust enrichment. Judge Barrett doubted that this cause of action was valid, given the Illinois Trade Secrets Act, but did not address this issue because the district court had not. [Note 3 on page 11] Judge Barrett instead opined that the sales which had enriched the defendants were their sales to Bosch, which took place outside of Illinois, rather than GM’s sales to its customers. [11] Therefore, Judge Barrett affirmed the decision that Illinois courts lacked personal jurisdiction over the case.

Ruckelshaus v. Cowan (2020)

Conrad Ruckelshaus established a trust for his children, Thomas and Elizabeth, under which either child would receive the remainder if the other died without children. After their father died, Thomas asked Elizabeth for permission to modify the trust, so that he could leave his share to his wife Polly if he died before she did. Specifically, he wished to leave Polly a life estate, with Elizabeth to take the remainder if he died childless. Elizabeth Ruckelshaus agreed. [2]

Elizabeth, who was the plaintiff of this lawsuit, engaged Gerald Cowan and his firm to modify and then terminate the trust. Elizabeth signed Mr. Cowan’s letter of retention, which only referred to termination of the trust. [2] Elizabeth also read the settlement agreement that Cowan drafted, which did not mention Polly’s life estate or restrict the Ruckelshaus family’s use of the funds after the trust was terminated. Moreover, the settlement agreement contained an integration clause. Elizabeth signed the settlement agreement and the petition to terminate the trust. [2-3]

Nine years later, Thomas died. He did not have children but Polly did. His will, which Elizabeth did not read, left all his assets to Polly. Polly herself died six years later, leaving all her assets to her children. Because the trust had been dissolved without creating a future life estate, Polly’s children were able to inherit the assets that Elizabeth thought would pass on to her. [3]

Elizabeth sued Cowan for legal malpractice, alleging that he had failed to follow her instructions in dissolving the trust. Judge James Hanlon granted summary judgment for the defendants, holding that the two-year statute of limitation had begun running at least seventeen years earlier. [3]

Under Indiana law, a cause of action for legal malpractice accrued when a plaintiff discovered, or could have discovered with ordinary diligence, that some harm had occurred. The full extent of that harm did not need to be apparent at the time. The plaintiff then had two years to commence a lawsuit. [4] Ruckelshaus had read and signed the retention letter and trust dissolution documents. Under Indiana law, she was therefore presumed to have understood them. Both sets of documents indicated that the trust assets would be disbursed with no restrictions on subsequent use. [5] Additionally, actually receiving the trust funds should have alerted Elizabeth (as it had alerted her brother) that the trust was gone. [6] Either of these should have alerted Elizabeth that Cowan had failed to do as she had intended. She did not have to wait until Polly died and she inherited nothing.

Therefore, Judge Barrett affirmed the summary judgment, because the statute of limitations had passed at least fifteen years earlier.

Williams v. Norfolk Southern Corporation (2019)

Ja’Lin Williams was a teenager playing with his friends on a beach. A police officer told them that they were trespassing and, if they did not leave, they would be arrested. The officer left but returned in his squad car and the young men fled. [2] They reached a set of train tracks with warning gates and flashing lights on either side. [2, 4-5] A train approached, showing its lights and sounding its bells and whistles. [3] Two of Master Williams’ friends saw the train. One sped up, the other stopped, and both were safe. Williams himself neither looked up nor changed his course and was hit by the train. [2]

Williams sued Norfolk Southern Corporation and the Norfolk Southern Railway Corporation, which owned and operated the railway. Magistrate Judge John Martin granted summary judgment to the Norfolk companies, holding that Williams could not recover under Indiana law because he was more than 50% responsible for his injuries. [2-3]

Williams and his friends testified that they had neither seen nor heard any signs of danger. The video of the incident, on the other hand, showed a plethora of sights and sounds that would have alarmed any reasonable person. Because Williams and his witnesses were biased, Judge Barrett cited Scott v. Harris to hold that a reasonable jury could not believe their testimony over the video. [3-4] Citing Reales v. Consolidated Rail Corp., Judge Barrett held that the gates, lights, and noise were ample warning that Williams had failed to heed. [4] Under Indiana law, the train driver was entitled to assume that Williams would evade danger unless he had reason to believe that Williams was unaware of the danger or unable to avoid it. By the time it became clear that Williams wouldn’t move, it was too late to stop the train. [4] Therefore, Judge Barrett held that Williams was primarily responsible for being hit by the train, which prevented him from recovering damages under the Indiana Comparative Fault Act [2].

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