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Archive for the ‘Government Law’ Category

Is Qualified Immunity at Risk in the Coming Supreme Court Term?

Posted on: October 22nd, 2020

By: Phil Savrin

The year 2020 has been tumultuous and unpredictable in many ways.  Momentarily lost in the shuffle between the ongoing pandemic and the upcoming presidential election are the cries from some sectors of the community to “defund” police departments or alternatively shift funding priorities from law enforcement to more community-oriented programs. These calls grew to a crescendo in the aftermath of the high-profile deaths of George Floyd in Minnesota and Breonna Taylor in Kentucky.

In the midst of the emotionally laden protests, some rational voices called once again for the abolition of qualified immunity, the legal doctrine that protects public officials from being sued for damages unless they violated clearly established law. The main purpose of the immunity is to allow government employees to use their discretion reasonably in discharging their public duties without fear of civil liability. In the law enforcement context, for example, we would not want police officers to weigh whether they will be sued for damages when swift action is necessary to protect the public from harm. This means that police officers can be immune from civil suits even if they used excessive force, provided that the unlawfulness of the force was not clearly established in the law.

The recent calls to abolish qualified immunity have come from different sectors of society based on a belief that members of the public need to be compensated whenever unnecessary force is used by the police whether or not it was clearly unlawful. They argue that allowing compensation through damages, no matter the circumstances involved, would operate as a disincentive for unlawful conduct instead of operating with virtual impunity. The counterargument is that egregious uses of force are not protected by qualified immunity and removing the defense would result in reduced police interactions across the board thereby increasing the risk of harm to the public. After all, there is generally no requirement that police use any force at all even in the face of an immediate need to protect others from criminal activities.

Because qualified immunity is a doctrine created by the courts, it can be abolished in one of two ways:  reversal of precedent by the Supreme Court or by Congressional legislation. Early efforts to introduce bills in Congress to abolish the doctrine have appeared to peter out but there is at least one justice on the Supreme Court who has voiced a concern about the existence of qualified immunity. Periodically, Justice Thomas has written separate opinions noting his “growing concern” with the doctrine because it has evolved beyond the immunities that were in place in 1871 when Congress passed 42 U.S.C. § 1983 that allowed civil suits to be brought for constitutional violations. Court watchers were expecting there to be a landmark decision during the 2019 Term when multiple petitions for review of qualified immunity decisions were the subject of multiple court conferences only to have them all denied toward the end of the term. The lone dissenter was none other than Justice Thomas who reviewed the history of immunities and opined that the Supreme Court should take a closer look at the continuation of the qualified immunity defense. Baxter v. Bracey, 140 S. Ct. 1862 (2020).

Because no other justices joined Justice Thomas’ dissent in Baxter, it can be inferred that they have little interest in overturning the firmly-established precedent and that it will take legislation from Congress to alter the course of the doctrine. These circumstances can change with vacancies opening up on the Supreme Court and changes in the office of the President and congressional leaders. For the time being, however, the doctrine lives on.

If you have questions or would like more information, please contact Phil Savrin at [email protected].

Southern District Weighs in on Discoverability of Litigation Funding Agreements under the Federal Rules

Posted on: October 6th, 2020

By: Wayne Melnick and Christopher Lee

One of the currently hottest areas of general liability law is the effect of medical-legal funding companies on litigation and the admissibility of evidence of this funding to undercut a plaintiff’s claims. Recently, the defense side of the “v” got a big win on this issue that may help allow juries to consider whether the amounts billed are even remotely reasonable.

On September 21, 2020, Judge Benjamin Cheesbro of the United States District Court for the Southern District of Georgia entered a ruling granting the defenses motion to compel discovery from non-party cherokee funding in the case of Misty Spears v. Wal-Mart Stores East, LP, Civil Action No.: 2:18-CV-152. While the 11th Circuit’s ruling in ML Healthcare Servs., LLC v. Publix Super Markets, Inc. opened the door for parties to question the boundaries of the discoverability of documents and agreements maintained by litigation funding agreements related to a plaintiff’s medical treatment, the Court’s ruling in Spears marked the first time that a court in Georgia determined that the amount billed and the amount ultimately paid are both relevant and possibly admissible at trial to determine the reasonableness and necessity of a plaintiff’s medical treatment.

Judge Cheesbro reiterated the finding in Houston v. Publix Supermarkets, Inc. determining that a medical lien funding company “is not … a traditional collateral source [as it] serves as an investor in the lawsuit and receives no payment from the Plaintiff until after the lawsuit.” No. 1:13-CV-206, 2015 WL 4581541, at *1 (N.D. Ga. July 28, 2015). Furthermore, the Order emphasized the purpose of the collateral source rule and its intent on excluding the admissibility of evidence, not its discovery, and left the door open as to the possibility for even the admissibility of these documents/information from Cherokee Funding at trial, showing the amount billed versus the amount ultimately paid to medical providers for a plaintiff’s treatment. In furthering the holding in Houston and other federal precedent, Spears highlighted the intimate involvement that is inherently present in a medical funding company and the underlying litigation which creates financial motivation for treating physicians and the potential future referral of patients based on favorably testimony.

Despite Cherokee’s arguments that it did not pre-approve any medical procedure or expenses and did not refer plaintiff to any care provider, Spears conceded this distilled the weight of the evidence but still declined to find that this distinction rendered the requested information undiscoverable. In its ruling, the Court noted that Cherokee’s advertisement to purchase receivables at “the highest prices” for plaintiff’s attorneys could incentivize and “inure” participating healthcare providers to provide services not normally rendered, or at higher than normal costs considering the potential for non-payment from the plaintiff. Thus, Spears determined this scheme created a situation in which Cherokee’s involvement may be relevant to the issue of treating physicians’ potential bias, intent, or motives.

As it pertains specifically to the discoverability of amounts actually paid for a plaintiff’s medical treatment, the Court held succinctly, “the difference between what a healthcare provider charged Plaintiff for a service and what Cherokee Funding paid the provider for the receivable may be relevant to the reasonableness of the charge … for the purposes of discovery, this information is potentially relevant, and therefore discoverable.” The Court further rejected any notion that the information sought was proprietary, confidential business information.

Spears is of utmost importance to the defense bar and provides yet another way to peer into the veiled world of personal injury litigation funding. While the first of its kind in several ways, this order falls within the trend of recent cases in this regard in the 11th Circuit and we anticipate it will not be the last.  

If you would like a copy of the opinion, please contact Wayne Melnick ([email protected]) or Christopher Lee ([email protected]) directly. 

Georgia Enacts Immunity for COVID-19 Claims

Posted on: August 17th, 2020

By: Jake Daly

As described in my previous post, the Georgia General Assembly passed a bill in the waning minutes of the 2020 session to provide immunity from civil damages for healthcare facilities and providers, other businesses, and individuals that are sued by employees, customers, visitors, and patients who are infected with COVID-19. The new law, known as the Georgia COVID-19 Pandemic Business Safety Act, became effective on August 5, 2020, when Governor Brian Kemp signed the bill. The Act is codified at O.C.G.A. §§ 51-16-1 to -5.

My previous post contains a detailed summary of the Act’s provisions.  Most importantly, the Act confers immunity on healthcare facilities and providers, other businesses, and individuals from “COVID-19 liability claims” unless their actions showed gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm. The Act also creates a rebuttable presumption of assumption of the risk by the claimant under certain circumstances.

For claims against a business or an individual for transmission of, infection by, exposure to, or potential exposure to COVID-19 when the claimant is on the business’s or the individual’s premises, other than the premises of a healthcare facility, the claimant is presumed to have assumed the risk if the business or the individual issued a receipt or proof of purchase for entry that includes the following warning in at least ten-point Arial font placed apart from other text:

Any person entering the premises waives all civil liability against this premises owner and operator for any injuries caused by the inherent risk associated with contracting COVID-19 at public gatherings, except for gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm, by the individual or entity of the premises.

Alternatively, the claimant is presumed to have assumed the risk if there is a sign posted at the point of entry of the premises that states the following in at least one-inch Arial font placed apart from other text:


Under Georgia law, there is no liability for an injury or death of an individual entering these premises if such injury or death results from the inherent risks of contracting COVID-19. You are assuming this risk by entering these premises.

For claims against a healthcare facility or a healthcare provider for transmission of, infection by, exposure to, or potential exposure to COVID-19 when the claimant is injured or dies at a healthcare facility or on the premises of a healthcare provider, the claimant is presumed to have assumed the risk if there is a sign posted at the point of entry of the facility or the premises that states the following in at least one-inch Arial font placed apart from other text:


Under Georgia law, there is no liability for an injury or death of an individual entering these premises if such injury or death results from the inherent risks of contracting COVID-19. You are assuming this risk by entering these premises.

These rebuttable presumptions do not apply if the actions of the business, the individual, or the healthcare facility/provider showed gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.

Before discussing how the Act affects healthcare facilities and providers, other businesses, and individuals, it bears noting that it seems difficult to reconcile the provision that creates immunity with the provisions that create a rebuttable presumption of assumption of the risk. Both the immunity and the rebuttable presumption are defeated by a showing of gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm, and so both or neither will be available to a defendant. If the immunity is available, a rebuttable presumption is meaningless. Thus, the provisions that create a rebuttable presumption of assumption of the risk seem to be superfluous.

Importantly, the Act does not require the use of the warnings quoted above.  They are required only if a business, an individual, or a healthcare facility/provider wishes to avail itself of the rebuttable presumption of assumption of the risk. From a purely legal perspective, these warnings should be used because of the protection they provide from potential civil damages. However, healthcare facilities and providers, other businesses, and individuals should consider more than just legal consequences when deciding whether, and to what extent, to resume their operations. Seeing one of these warnings might be disconcerting to some people, and so using them could have a negative effect. How people react to these warnings will probably depend somewhat on the nature of the business. For example, it seems that people entering a healthcare facility would be less likely to react negatively to a warning about contracting COVID-19 than a person entering a restaurant. The point is that protection from legal liability does nothing for a business that has no customers. Thus, every business must strike its own balance between economic, health, and liability considerations.

In weighing these considerations, healthcare facilities and providers, other businesses, and individuals should be aware that evidence of their decision not to use these warnings is not admissible in a lawsuit. Further, they are entitled to immunity under the Act even if they do not use these warnings. Thus, for some, the potential negative effects of using these warnings may be worse than foregoing the rebuttable presumption of assumption of the risk.

As shown by the exception for gross negligence, etc., the Act does not provide absolute immunity from all liability relating to COVID-19. Depending on how lenient judges are in finding factual disputes as to gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm, the immunity or the rebuttable presumption of assumption of the risk may not provide sufficient protection for healthcare facilities and providers, other businesses, and individuals. The Act should not be viewed as a limitation on what healthcare facilities and providers, other businesses, and individuals can do to protect themselves from liability for money damages. Regardless of whether they use the warnings prescribed in the Act, they should follow all guidelines recommended by the CDC and their state and local governments. They should also consider guidelines issued by regulatory agencies and trade organizations since those entities are more likely to have guidelines that are specifically tailored for their type of business.  Complying with industry-specific guidelines should reduce liability exposure. Equally important is documenting compliance with guidelines.

Another option is to require persons entering the premises to sign a waiver of liability. This may not be possible for certain types of businesses, but even for those for which it is possible, it may not be advisable from a customer relations perspective. For certain businesses, the very act of asking a customer to sign a waiver of liability form may be counter-productive. Again, each business will have to weigh the pros and cons based on its unique characteristics.

Finally, the Act does not limit any other immunity that may be available under state or federal law, and it does not modify or supersede other specified laws, including those in Title 16 (crimes), Title 31 (health) and related regulations, Chapter 9 of Title 34 (worker’s compensation), and Chapter 3 of Title 38 (emergency management). Also, a claimant asserting a COVID-19 liability claim still must prove causation. Because COVID-19 has an incubation period of up to 14 days, and because it can be transmitted from person to person asymptomatically, it will be very difficult for a claimant to prove where or from whom he or she was infected.  Also, even if a claimant can identify a specific person who allegedly infected him or her, it will be difficult to prove that the person’s violation of a particular guideline (e.g., wearing a mask) caused the infection. After all, a person can be infected in the total absence of negligence by another person. Thus, even if the immunity or the rebuttable presumption of assumption of the risk is not available, proving causation will be a high hurdle for claimants to overcome.

As with all things COVID-19, there is much uncertainty surrounding the viability of claims brought by people who are infected with COVID-19 on someone else’s property. Healthcare facilities and providers, other businesses, and individuals should take certain precautions to protect themselves from litigation, but the nature and extent of those precautions requires a careful balancing of various competing interests.

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

Statute of Limitations Tolled in California Amid Pandemic

Posted on: August 3rd, 2020

By: Matthew Jones

In response to the COVID-19 pandemic, California’s Governor Gavin Newsom issued a “state of emergency” for the entire State. In response, the California Judicial Council adopted several Emergency Rules to implement during the pandemic. In particular, Rule 9 states that all statute of limitations for civil causes of action are tolled from April 6, 2020 until 90 days after the state of emergency related to COVID-19 is lifted by the Governor. Therefore, if a party’s claim would have expired pursuant to the applicable statute of limitations during this timeframe, such claims are still very much alive. In regard to those claims, there is currently no deadline to file them since the “state of emergency” has yet to be lifted by the Governor. Once lifted, claimants will have six months to file their respective claims.

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Insurance Requirements and First Amendment Rights of Freedom of Speech and Assembly

Posted on: July 6th, 2020

By: Jessi Samford and Bill Linkous

There is no doubt that the world as we know it has changed dramatically this year, and the protests and marches amidst the global pandemic have been in the forefront of recent news. While some protests have focused on broader awareness campaigns of injustice and inequality, others are geared toward current events that stir up longstanding tensions in the United States. There have even been a few protests about the pandemic itself. 

In recent history, some states have imposed insurance requirements on groups planning rallies or protests at certain locations, which presents an important constitutional question which should be considered carefully now, more than ever, in our country’s divisive climate. Can a government make and enforce a rule requiring that insurance be provided to cover risk of injury to protest participants or bystanders that that does not violate the First Amendment of the U.S. Constitution? 

Iowa, for example, faced criticism three years ago for having a one-size-fits-all rule that any organizer of such an event at the state’s capitol had to obtain a liability policy of at least $1 million. The blanket rule on its face made no exception based on the size or length of the event, but it was not always enforced. One organizer regularly provided proof of insurance while others who could not afford the premiums proceeded anyway at the capitol as planned and without interference.

Special event insurance is not a new concept to the insurance industry, as many carriers are in the market to underwrite risks for short-term gatherings of all kinds—from an outdoor car show, farmers market, or festival to an indoor convention or even wedding festivities. The insurance would likely be based off commercial general liability (CGL) policy forms, which mainly address risks against bodily injury or property damage claims by others. In the context of protests on public property, it would likely be the venue organizers who would be required to supply the policy and proof thereof to obtain a permit for the special event, assembly, or protest.

What is unique about this concept in the context of a protest is that it would be held in a public space and a governmental entity would need to be cognizant of the First Amendment implications of requiring the protest organizer(s) to pay insurance premiums to exercise First Amendment rights to free speech and peaceable assembly.

The requirement to obtain a permit and pay a fee, such as for insurance, before authority is given for public speaking, parades, or assemblies in traditional public forums is generally considered by courts to be a prior restraint on speech. Forsyth County v. Nationalist Movement, 505 U.S. 123, 129 (1992). The term “prior restraint” is used to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur, including injunctions and restraining orders. Alexander v. United States, 509 U.S. 544, 550 (1993).  Although there is a “heavy presumption” against the validity of a prior restraint, the Supreme Court has recognized that in order to regulate competing uses of public forums, government may impose a permit requirement on those wishing to hold a march, parade, or rally.  Cox v. New Hampshire, 312 U.S. 569, 574-576 (1941). Such a scheme, however, must meet certain constitutional requirements. It may not delegate overly broad licensing discretion to a government official. Freedman v. Maryland, 380 U.S. 51, 56 (1965). Moreover, a permitting scheme controlling the time, place, and manner of speech must not be based on the content of the message, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication.  United States v. Grace, 461 U.S. 171, 177 (1983).

A local government wishing to impose a permit and insurance requirement for public gatherings in a public forum should follow the guidelines laid down by the U.S. Supreme Court. First, neither the imposition of an insurance requirement nor the amount of insurance required can be based in any way on the content of any anticipated message. For instance, the amount of insurance required cannot be tied to the expected backlash that the message will cause among citizens. Second, the permit/insurance requirement cannot give overly broad discretion to the official who is designated to issue the permit. Only objective criteria should be used.  Perhaps the insurance requirement would kick in once a threshold number of participants in the gathering is reached or when the gathering is expected to last for a threshold period of time, and the level of insurance required could increase incrementally as the number of participants (or the length of the gathering) increases. Third, the insurance/permit regulation should require that the permit be automatically issued within a short period of time once the application is filed if the permit is not denied by the government official. Finally, there should be a quick and efficient method for appeal of the insurance requirement and permit issuance decision, because a system of prior restraint avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975).

As local governments consider the impact that public assemblies can have on counties and cities today, and the costs that may arise due to such assemblies, we can expect more local governments to explore the potential for a special event insurance requirement for such events. As they consider such requirements, it will be important for them to consider how they go about doing so to comply with constitutional mandates.

If you have questions or would like more information, please contact Jessi Samford at [email protected] or Bill Linkous at [email protected].