The United States Supreme Court is expected to resolve a critical circuit split this term concerning a defendant’s right to appeal orders of remand based on several grounds when removal from state to federal court is triggered by federal officer or civil rights jurisdiction. To do this, the Court must examine the plain language and legislative intent of at least six different provisions contained in Title 28 of the United States Code, clarify the duties of the Courts of Appeal, and potentially even redefine the meaning of an “order” that is issued by a U.S. district court.

On January 19, 2021, the Court heard oral argument in BP P.L.C., et al. v. Mayor and City Council of Baltimore.  This case – which garnered the attention of nearly two dozen amici curiae, including the United States government and the United States Chamber of Commerce – was originally filed in Maryland state court by the City of Baltimore (the “City”).  Mayor and City Council of Baltimore v. BP P.L.C., et al., 388 F.Supp.3d 538, 568 (D. Md. 2019).  The City alleged that the defendant energy companies caused the City to sustain injuries related to climate change.  Id. at 548.  Two of the defendants removed the case to the United States District Court for the District of Maryland on several grounds, including federal officer jurisdiction.  Id. at 567.  The defendant energy companies asserted that they were acting under the direction of federal officers in light of their alleged contractual obligations with the U.S. government to supply fuel to the U.S. Navy.[1]  Id. at 568.


Continue Reading Removal, Remand, and Appeal: A Weedy Issue of Orders, Statutory Language, and Jurisdiction Under SCOTUS Review

Punitive damages are meant to serve two purposes: punish the defendant for the conduct at issue in the lawsuit and deter similar conduct in the future. But, sometimes a punitive damages award goes beyond serving these two purposes and moves into the territory of violating the Due Process Clause of the 14th Amendment to the United States Constitution. The 14th Amendment, through the Due Process Clause, prohibits the imposition of grossly excessive or arbitrary punishments.

Punitive damages are allowed in California under California Civil Code section 3294(a), which states “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” Although California law does not define “clear and convincing evidence”, it carries a higher burden of proof than “preponderance of the evidence,” which is the burden of proof necessary to prevail in a civil lawsuit. In determining whether to award punitive damages, the jury considers: (1) the reprehensibility of the defendant’s conduct; (2) whether there is a reasonable relationship between the amount of punitive damages and the plaintiff’s harm; and (3) what amount will punish the defendant and discourage similar future conduct. In determining this amount, the jury considers the defendant’s financial condition. In California, there is no official cap on punitive damages.
Continue Reading Excessive Punitive Damages Awards Continue To Be An Issue In California

In September 2018, Governor Jerry Brown signed a series of bills aimed at drastically reshaping California’s approach to claims of discrimination and harassment amidst the “#MeToo” Movement. Among the legislation is Senate Bill 1300 which clarifies and expands employee rights under the California Fair Employment and Housing Act (“FEHA”). SB 1300, which was met with both opposition and support, became effective January 1, 2019. In addition to Senate Bill 1300, Gov. Brown also signed into law a series of bills on issues relating to workplace harassment, gender equality and human trafficking.

CALIFORNIA SENATE BILL 1300: HEIGHTENED EXPOSURE FOR EMPLOYERS

SB 1300 intends to close loopholes in the law that discourage or prevent victims from speaking out, and allow employers to avoid sexual harassment and discrimination laws and leave employees vulnerable to sexual harassment at work. In an attempt to aid these efforts, SB 1300 provides the following enhancements, further described below: 1) a new “single occurrence” standard for sexual harassment cases; 2) increases the challenges of recovering litigation costs for defendants; 3) potentially holds employers liable for third-party harassment; 4) prohibits release of both claims and non-disparagement agreements; and 5) provides for workplace accommodation and bystander training.

“SINGLE OCCURRENCE” STANDARD

One highly significant implication of SB 1300 is that it now makes a single instance of sexually harassing conduct a potentially triable sexual harassment claim by statute. Under FEHA, action was required to be so “severe or pervasive” so as to create a hostile work environment before it was actionable. However, the term “severe or pervasive” was subjective, leaving room for interpretation as to what conduct would be significantly severe or pervasive to support a claim under the existing law. For example, in Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000), the Ninth Circuit Court of Appeals found that an employee touching another employee’s chest under her sweater was not significant enough to rise to the level of “severe or pervasive,” and, thus, granted the employer’s motion for summary judgment.

SB 1300 narrows the definition of “severe or pervasive” by clarifying that a single incident of harassing conduct is sufficient to create a triable issue, so long as the conduct limited the employee’s work performance or created a hostile work environment. The Legislation specifically rejects the court’s holding in Brooks and states that the case opinion shall not be used in determining what kind of conduct is sufficiently severe or pervasive to constitute a violation of the FEHA.

Of significance to litigation resulting from employment claims, SB 1300 affirms the court’s opinion in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243. In Nazir, the Plaintiff filed a lawsuit against his former employer, United Airlines, and his former supervisor (“Defendants”). Defendants filed a motion for summary judgment/summary adjudication, seeking adjudication of 44 issues. The appellate court found that hostile work environment cases involve issues that are “not determinable on paper.” SB 1300’s reference to the finding in the Nazir case that employment issues are too complex for motions for summary judgment may be a threat to the validity of future motions for summary judgment in employment law cases which has been a common and successful defense tactic.
Continue Reading California Enacts Legislation to Combat Discrimination and Harassment

Florida courts have historically relied on the standards set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (“Frye”) to determine the admissibility of expert opinions and testimony.  Though the Florida Supreme Court adopted Frye in the mid-1980s, Florida courts had applied this standard long before then. See Bundy v. State, 471 So. 2d 9 (Fla. 1985); Bundy v. State, 455 So. 2d 330 (Fla. 1984). However, in April 2013, the Florida Legislature stirred things up when it passed a bill that amended Florida Statute § 90.702 to replace the longstanding Frye standard with the standard used in Federal Courts, as announced in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (“Daubert”). Since the amended statute came into effect, some members of the Florida bar have challenged its validity and advocated that the Florida Legislature overstepped its bounds and infringed on the Florida Supreme Court’s rule-making authority. These challenges resulted in a five-year long debate as to the appropriate standard in Florida to determine whether expert testimony is admissible: Frye or Daubert?

Under the Frye standard, expert opinion and testimony is admissible if it is based on new or novel scientific principles and methodologies that are generally accepted in the scientific community. Whereas under Daubert, general acceptance is not a prerequisite for admissibility. Rather, a trial judge acts as the gatekeeper and determines the admissibility for “any and all scientific testimony or evidence” that is relevant and reliable. While there has been a clear divide within Florida’s legal community between those who are pro-Frye versus pro-Daubert, the five-year-long debate over which standard should be the law and is the law in Florida is finally over.


Continue Reading Frye Makes a Strong Comeback in Florida

In DeLong v. Rhode Island Sports Center, Inc., et al., a former college hockey player successfully appealed a Rhode Island Superior Court decision granting an ice rink’s motion for summary judgment in a case alleging that he was poisoned by an ice resurfacer after finding that circumstantial evidence present in the record was sufficient to raise a factual dispute. 182 A.3d 1129 (R.I. 2018).

The plaintiff alleged that he inhaled noxious fumes that emanated from a malfunctioning ice resurfacer while playing in an ice hockey game at an enclosed arena in February, 2011. However, the plaintiff’s first indication that he had breathed injurious air resurfacing machine air did not come until the following morning when he and a teammate visited an emergency room after coughing up blood, from which doctors deduced that the plaintiff suffered from an acute lung injury as a result of carbon monoxide and nitrogen dioxide poisoning.

Accordingly, the plaintiff filed suit alleging that the ice rink defendants: negligently maintained their facility by allowing noxious fumes to permeate the air; failed to exercise reasonable care; or failed to provide adequate warnings. However, following discovery, the defendants successfully persuaded the trial court to grant summary judgment. “They argued that there were no genuine issues of material fact regarding (1) the existence of a dangerous or defective condition; (2) the notice to defendants of any such condition; and (3) the causal connection between that condition and any injury that may have been sustained by plaintiff.” Id. at 1131.

Specifically, the defendants pointed to: the plaintiff’s deposition testimony that he neither saw nor smelled any unusual fumes while at the ice rink; the lack of scientific evidence as to the air quality in the arena on the night in question; and evidence that the ice rink attendant’s twice-daily notation of the air quality had shown zero carbon monoxide, which the Rhode Island Department of Health confirmed the following day. Moreover, the ice rink’s facilities manager and the ice resurfacing machine driver each testified that neither was aware of any complaints regarding noxious fumes. The trial court, furthermore, intimated that the plaintiff’s “sickness was from another source, independent of the defendant’s facility” because the Department of Health’s testing was “more objective” and because the only people who fell ill were from the college hockey team. Id. at 1133. Based on this, the trial court granted summary judgment ruling that a lack of evidence that a defective condition existed at the sports center on day of the hockey game and it appeared that no one from the ice rink had notice of any such defect, if there was one.

On appeal, however, the plaintiff noted that: (1) the Department of Health does not and did not test nitrogen dioxide levels and did not test carbon monoxide levels until a day after the alleged incident, implying that poisonous ice resurfacer emissions had subsided by the time testing occurred; (2) his teammates and coach stated that they
Continue Reading Ice Resurfacer Poisoning Demonstrates High Summary Judgment Threshold