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Archive for the ‘General Liability’ Category

Will the Las Vegas Tragedy Change the Hospitality Industry?

Posted on: December 8th, 2017

By: America Vidana

Hundreds of victims of the 10/1/2017 mass shooting in Las Vegas have filed several suits in both, California and Nevada courts against Mandalay Bay, MGM Resorts and LiveNation. The victims accused the hotel operator MGM Resorts International and its subsidiary Mandalay Corp, which owns the hotel, of failing to properly monitor the shooter’s activities, train staff members and employ adequate security measures.

Additionally, the lawsuits accused the concert promoter, LiveNation, and the concert venue owner, also MGM, of failing to design, build or mark adequate emergency exits and to properly train and supervise employees in an appropriate plan of action in case of an emergency.

In order to prevail in such cases, a plaintiff must prove that the premises operators were negligent and the incident was reasonably foreseeable. Given the instant facts and the history of lawsuits following mass shootings, this will be an uphill battle for the victims unless they can show Mandalay Bay, MGM Resorts and LiveNation were careless and could have done more to prevent the shooting.

The shooter, 64 year-old Stephen Paddock, was a retired multi-millionaire, who invested in real estate, gambled for fun and had no criminal antecedents. He reportedly was a “high-roller,” who was well-known in the gambling world and frequented casinos such as Mandalay Bay, for weeks at a time. By all means, the shooter did not display any unusual or suspicious behavior that may have alerted Mandalay Bay security of a potential threat to safety.

Arguments have been made that Mandalay Bay security should have been more vigilant of the 23 legally-purchased guns, including high-caliber assault weapons, the shooter took to his room over the course of three days, or alternatively, that some inspection procedure, whether metal detectors or bag checks, should have been in place to detect such weapons. While Mandalay Bay in addition to every major Las Vegas casino spends hundreds of thousands of dollars yearly to catch illegal gamblers, it somehow failed to detect the plethora of artillery being transported through its casino floor. The shooter reportedly also installed cameras in the hallways, and declined room service for several days—bringing into question Mandalay Bay’s policies regarding room service and duration between checking a guest’s room.

Even more damaging to Mandalay Bay, a security guard was allegedly shot several minutes before the mass shooting ensued. Strangely, there was a six-minute lapse in Mandalay Bar’s response time from the initial shooting of the guard to the actual mass shooting. This will likely be one of the bigger issues MGM will face, as this arguably should have provided notice of the danger, and plausibly provided a reasonable opportunity to minimize, if not prevent the casualties.

However, the litigation trail following mass shootings have largely favored the establishment. Notably, in a similar suit arising out of the Aurora, Colorado theater mass shooting at a showing of The Dark Knight Returns, the court dismissed claims of those injured against the theater because the crime was not foreseeable at the time and because the crime was an intervening and superseding cause of the harm. While not directly applicable in the 9th Circuit, the court’s rationale and legal principles will surely be persuasive. But being the first such presentation of a case against the hospitality juggernaut, the court’s decision could set new precedent on industry standards for safety and emergency response.

For further information or for further inquiries involving hospitality law, you may contact America Vidana of Freeman Mathis & Gary, LLP, at [email protected].

What Do You Call Your Chicken?

Posted on: November 9th, 2017

By: Jason C. Dineros

McDonald’s, the world’s second largest fast food chain (behind Subway, for those wondering), is facing a potential class action for advertising its food items containing chicken breast as being comprised of “100%” breast meat. Primarily targeting the Golden Arches’ advertising of its premium-priced, no-longer-a-cheap-date artisan chicken sandwiches, the proposed New York class action alleges these items also contain rib meat.

With the Food and Drug Administration’s implementation of mandatory food nutrition disclosures for all restaurants with at least 20 locations, and the paleo diet attracting nearly as many bandwagoners as the Los Angeles Dodgers, the trend of fast food dining for the last several years has been healthy and nutritious. Naturally—no pun intended—sourcing organic, farm-to-table, less-processed foods comes with it higher food costs.  But surprisingly, diners have been willing to fork over the premium.

While salads remain “puzzles” in fast food menu classifications (since at the end of the day, everyone has been guilty of intending to order “healthy”—only to somehow word-vomit, “I’ll get a #1 with a Coke,” like the first time they told their childhood crush they liked them), there has been a steady increase in premium-ingredient sandwiches, and with it, the increased challenge of controlling food costs. But the even greater challenge then comes of not only controlling the bottom line, but also maintaining brand integrity and avoiding false advertising lawsuits.

For further information or for further inquiries involving hospitality law, you may contact Jason C. Dineros, the Chair of the Hospitality Law Practice Team of Freeman Mathis & Gary, LLP, at [email protected].

Ranking the State Courts: Is the Litigation Environment Getting Better?

Posted on: September 26th, 2017

By: Jacob E. Daly

Earlier this month, the U.S. Chamber Institute for Legal Reform (“ILR”) published the results of its 2017 lawsuit climate survey. Participants in the survey were 1,321 in-house attorneys and other senior executives at companies with at least $100 million in annual revenue who are knowledgeable about litigation matters and have recent firsthand litigation experience in each state they evaluated. The states were ranked on a scale of 0-100 based on grades assigned by participants in the following categories: (1) enforcing meaningful venue requirements; (2) overall treatment of tort and contract litigation; (3) treatment of class action suits and mass consolidation suits; (4) damages; (5) proportional discovery; (6) scientific and technical evidence; (7) trial judges’ impartiality; (8) trial judges’ competence; (9) juries’ fairness; and (10) quality of appellate review. Participants assigned a grade of A, B, C, D, or F for each category, and these grades were then translated to scores of 100, 75, 50, 25, and 0, respectively.

The ILR has conducted this survey 11 times since 2002 (2002-2008, 2010, 2012, 2015, and 2017), and Delaware was the top-ranked state every year until this year when South Dakota claimed the no. 1 ranking. Interestingly, the states in which Freeman Mathis & Gary has an office all rank in the bottom half of the country, which suggests that FMG attorneys are toiling in some of the most difficult legal arenas. Those states and their rankings and scores are: New York (29th; 68.4), North Carolina (33rd; 68.2), Pennsylvania (38th; 66.3), Georgia (40th; 64.1), New Jersey (41st; 63.8), Florida (46th; 60.5), and California (47th; 60.0). In addition, the survey identified the cities and counties with the least fair and reasonable litigation environments in the country, and several cities and counties where FMG has an office are on this list: Los Angeles, San Francisco, New York City, and Philadelphia.

The survey shows that the overall average scores are increasing, which means that in-house attorneys and other senior executives believe that the litigation environment is improving overall, though it is interesting to note that the ranking of each state where FMG has an office has gotten worse since 2010. About 63% of participants describe the fairness and reasonableness of state courts as excellent or pretty good, which is up from 50% in 2015 and 49% in 2012. Further, a substantial majority of participants (85%) say that a state’s litigation environment is likely to affect decisions about where to locate or do business, which is up from 75% in 2015 and 70% in 2012.

The full report on ILR’s survey can be found here.

If you have any questions or would like more information, please contact Jacob Daly at [email protected].

 

Contesting Damages Involving Medical Lien Funding

Posted on: August 4th, 2017

By: Jason A. Kamp

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Medical Lien Funding is a distinct flavor of litigation financing. Medical Lien Funding companies refer personal injury plaintiffs to medical providers for treatment, which is provided pursuant to a medical lien. Lien rates are higher than rates charged to regular payors like Medicare or an insurance company. The company then purchases the lien from the provider at a negotiated discount. The company’s profit is made by collecting the higher lien rate from the plaintiff’s recovery. Part of why such profit is available is because the unpaid lien rate is used to measure the plaintiff’s damages, rather than the paid discount rate. The company takes on the risk of non-payment and the positive rate differential. The provider gets guaranteed payment and the prospect of repeat referrals.

While these arrangements arguably enable personal injury plaintiffs to receive care that would otherwise be unavailable, they do so by creating a perverse incentive structure. The arrangement inherently rewards costly over-treatment and creates a credibility problem for providers. Until recently, it was difficult to combat this incentive structure in Georgia because the collateral source rule made it impossible for the party paying the bill to explore or use it in litigation.

However, two recent federal cases have taken these agreements out of the collateral source rule’s protection. In Houston v. Publix Supermarkets, Inc. No. 1:13-CV-206-TWT, 2015 U.S. Dist LEXIS 102093, 2015 WL 4581541 (N.D. Ga. July 29, 2015) and Rangel v. Anderson, 202 F. Supp. 3d 1361 (S.D. Ga., Nov. 7, 2016), federal courts in Georgia note the inherent differences between Medical Lien Funding arrangements and classic collateral sources. The latter decision also provides a framework for admitting and using them. The door is now open for discovering and using the details of these arrangements to probe the credibility of medical providers, as well as attack the reasonableness of damages. These rulings provide a useful tool advocates for personal injury defendants would be wise to incorporate into their repertoire.

If you have any questions or would like more information, please contact Jason A. Kamp at [email protected].

What Do Jurors Think?

Posted on: July 24th, 2017

By: Jacob E. Daly

Figuring out what jurors think – and, therefore, predicting what decisions they will make – is critical to success at trial. Many lawyers believe they have this figured out, but of course it is impossible to know the attitudes and beliefs of any one juror or group of 6 or 12 jurors. DecisionQuest is a national trial consulting company that has been tracking potential jurors’ attitudes for decades. It recently published the results of its 2017 National Juror Attitude Survey, which involved 1,201 respondents from 12 major metropolitan areas. Some of the results are eye-opening.

For example:

  • 90% agree that there are too many lawsuits.
  • 75% agree that plaintiffs’ lawyers manufacture lawsuits just to enrich themselves.
  • 73% agree that personal injury plaintiffs fake illness or injury to get money.
  • 68% agree that a lawsuit would not go to trial if the plaintiff did not have a legitimate claim.
  • 50% believe that damages awarded in lawsuits are about right; 42% believe they are too high; and 8% believe they are too low.
  • 79% are angered by at least some things about corporations.
  • 42% believe that corporations will do anything to maximize profit.
  • 72% agree that conspiracies between business persons are common.
  • 69% believe that companies destroy their own records to avoid taking responsibility.
  • 79% agree that awarding punitive damages against large companies is the best way to get them to behave more responsibly.

Some of these findings are difficult to reconcile with other findings in the survey as well as with actual results in real trials. The bottom line from this survey is that there is both good news and bad news for personal injury plaintiffs and defendants, especially corporate defendants. The key for each side, obviously, is to maximize the good and to minimize the bad. Predicting jurors’ decision-making is an imprecise exercise at best, but having as much information as possible about their attitudes will help with emphasizing issues that exploit their beneficial attitudes while avoiding issues that promote their harmful attitudes.

For any questions, please contact Jacob Daly at [email protected].