Not surprisingly, Court dismisses Patrick Reed's defamation suit - UPDATE: Court of Appeals also dismisses appeal

October 5, 2023

Back in August of last year I reported that professional golfer Patrick Reed filed a defamation claim against a number of defendants including commentators for the Golf Channel, and I explained how the complaint was a good model to teach how NOT to  draft a complaint.  See here.

The complaint was based on obviously wrong arguments and I predicted it would be dismissed.  My prediction was correct and the case was dismissed in November.  But the dismissal was without prejudice and, thus, Reed and his lawyers were given a chance to amend the complaint and try again.

They shouldn't have because, as I argued back then, the claim was flawed from the start; but they did.  

And, predictably, they lost again.  As expected, the court found that the alleged defamatory statements were either not defamatory, rhetorical hyperbole, true or substantially true, or statements of opinion.

You can read the opinion, which is pretty detailed and long, here.

UPDATE:  July 11, 2025 

Courthouse News Service is reporting today that the Court of Appeals for the 11th Circuit has (again, predictably) dismissed the appeal.  Go here for more on the story and a link to the one page order. 

Illinois Supreme Court declines to recognize a claim for interference with the parent-child relationship

Last Thursday, the Illinois Supreme Court published an opinion in a case called Hulsh v. Hulsh in which it declined to recognize a cause of action for interference with the parent-child relationship.  The issue in the case started when the mother of two minor children successfully regained custody of her children in an action filed in federal district court in Illinois against the children’s father.  The mother then filed a state court action in Cook County against her former mother-in-law and brother-in-law, alleging tortious interference with her custodial rights and aiding and abetting tortious interference with her custodial rights, seeking to recover the expenses that she incurred in the federal district court action to regain custody of her children.

The Cook County circuit court dismissed those claims for failure to state a claim, and the appellate court affirmed the dismissal pointing out that Illinois courts have declined to recognize a cause of action for tortious interference with a parent’s custodial rights, regardless of the damages claimed.  

The defendants appealed to the Supreme Court and the court affirmed and explicitly stated that it preferred to defer the question of whether to recognize such a cause of action to the legislative branch.  

You can find a copy of the opinion in the Illinois Supreme Court website.  Go here and scroll down or search by date.

Update on the status of the blog

  If you are a long time reader of this blog you will have noticed that I have not posted anything in months and that I posted less frequently than usual in the past couple of years.  The reason for this is that I have been slowly moving toward retirement and that I have started to spend more time on other courses I teach and on projects that I want to pay attention to in the near future.

I have been posting my comments here for more than 15 years which is longer than the average lifespan of most blogs.  Now it is time for me to start to cut back a little and manage my time more efficiently.  I will continue to post commentary from time to time but, more than likely, not very frequently.  

I started this blog as a way to provide my students access to stories from the news related to what we cover in class, but which we did not have time to discuss in the classroom.  Essentially, it was meant to provide supplementary readings.  Slowly but surely, however, people other than my students started to pay attention and eventually I had more “outside” readers than students following the posts.  

I want to thank each and every one of you for following the blog, reading the stories, and for sending me materials to comment on and messages of support and criticism. 

Tort Law & Social Equality Project lecture series

 I just recently learned of an online lecture series on advanced torts topics.  The series is hosted by a Canadian organization called the Tort Law & Social Equality Project, whose goal is to foster an awareness of the many inadvertent ways in which legal rules within tort law reinforce and perpetuate systemic social inequalities.  Their website is available here.  From there you can click on the “speaker series” tab if you want to watch the lectures live, or you can watch the videos later on their YouTube channel, here. 

 

Panera Halts Sales of “Charged” Lemonade Drinks Following Lawsuits Claiming Caffeine Overdose Deaths -- UPDATED

May 13, 2024  [Update at the end below]

Last December  I reported on several lawsuits filed against Panera Bread Co. alleging it should be liable for the deaths of customers who suffered cardiac arrest after drinking Panera's "charged lemonade" which allegedly contained more than 300 ml of caffeine at the time.  See here and here.

Today, I am writing to report that Panera has decided to stop selling the product in question.  As reported in AboutLawsuits.com, 

Reports suggest that Panera Bread will no longer sell its “charged” lemonade products, after at least two consumer deaths were linked to excessive levels of caffeine in some of the drinks, leading to wrongful death lawsuits by the families.

Panera Charged Lemonade was introduced in 2022, featuring high levels of caffeine marketed as an alternative to coffee or energy drinks. However, at least two wrongful death lawsuits were filed against Panera last year, claiming that high levels of caffeine in the beverage led to fatal heart attacks or other heart complications.

While Panera claimed their charged lemonade as plant-based and clean, a 30oz lemonade could contain up to 390 milligrams of caffeine, which is the equivalent of four cups of coffee or three-and-a-half 12-oz cans of Red Bull. In addition, since Panera’s employees mix the lemonade, caffeine levels can vary drastically in different drinks, potentially providing potentially dangerous amounts for some consumers, especially those with certain pre-existing conditions.

Various news reports now indicate that employees are now being told that Panera Charged Lemonade will be phased out, and the chain is no longer ordering some key ingredients used to mix the products in stores.  

Go here for the full story. 

UPDATE 10/13/24:  The Hill is reporting that Panera has settled one of the lawsuits.  See here.

Complaint essentially alleges that employer worked decedent to death

 Courthouse News Service is reporting that a widow has filed a complaint arguing that the production team behind the NFL’s “Hard Knocks” sports documentary series overworked her husband to the point of exhaustion, which she said caused the man to develop chronic fatigue and ultimately die in a car accident on his way home from an overtime shift as a production assistant. 

CNS has the story and a link to the complaint here.

Another lawsuit for Wrongful Life based on the destruction of embryos

About Lawsuits is reporting on a recently filed complaint in the U.S. District Court for the Western District of North Carolina by a couple claiming the defendant's product killed an embryo after it was implanted in the mother as part of an IVF procedure.  The claim is similar to a number of other claims filed against another company making the same claims.  About Lawsuits has the full story here.

You probably remember that last summer a case in Alabama gathered a lot of attention because the court recognized a possible cause of action for wrongful death as a result of the destruction of frozen embryos.  I commented on that case here, here, here and here.

Since then, similar cases have been brought against companies that manufacture the substance in which embryos are kept after they are fertilized but before they get implanted in the mother.  The case filed in North Carolina is one of those.

In the complaint, the plaintiffs argue that a fertilized embryo is a human life and that, therefore, the defendant (FujiFilm) should be held responsible for the wrongful death of their unborn child.

Interestingly, as reported, the story assumes that conception happens when the egg is fertilized, which happens before the egg is implanted.  In other jurisdictions, there is a debate as to whether life begins at that point or whether it begins when the egg is implanted.  Because the egg was implanted in the North Carolina case, that question does not appear to be an issue there.

If you are interested in the question of whether courts should recognize a cause of action for wrongful death of embryos, go read the story here.  It sounds like there are quite a few pending cases and, therefore, there may be interesting decisions coming in the near future.

California expands the notion of "present at the scene" and "a contemporaneous sensory observance" of an accident for purposes of a claim for emotional distress of a bystander

 You probably remember from law school the development of the law related to claims by bystanders for emotional distress at witnessing someone else suffer an injury.  It originated in California with the famous case of Dillon v. Legg in which a mother saw a car hit one of her daughters.  In that case, the mother was not within the so-called zone of danger and would not have recovered under the applicable doctrine at the time, but the court adopted a new approach to the question.  Under the new approach, a bystander outside the zone of danger could support a claim if she could show that she had a close personal relationship with the victim, that she had a contemporaneous sensory observance of the accident and that she was present at the scene of the accident.  

Since that case was decided, the new approach was slowly adopted by a small majority of jurisdictions and law professors like me have explored the different possible consequences of its application by creating hypos involving all sorts of complicated scenarios.  In one of my hypos, for example, I ask the students, what if the mother is watching the Olympics on TV and witnesses an accident to the daughter on TV

Some jurisdictions have also explored different variations of the scenario.  For example, some have decided cases explaining how this type of claim should be decided if the plaintiff is away from the scene of the accident and only hears about it from someone else who witnesses it, or if the plaintiff does not see the accident, but sees its aftermath, or if the plaintiff does not see the accident but hears it, and so on.

I am writing about this today because I just saw an article in the ABA Journal reporting that a new case in California has finally decided one of the typical law school hypos:  what if the plaintiff is not at the scene but has a contemporaneous sensory observance of it by "technology."  

In this new case, the court held that a mother who heard her daughter’s car crash while giving her directions by cellphone has a right to recover.  The case is called Downey v City of Riverside, and you can read it here.

In my opinion, the decision is not surprising.  Granted the plaintiff was not "present at the scene" as originally required by Dillon v Legg, but I always thought that the element of having a contemporaneous sensory observance would become more important if the technology involved could at least provide some support for a feeling of "presence" at the scene.  In the end, however, it seems that the trajectory of the doctrine is heading toward minimizing the need for presence at the scene as long as the element of a contemporaneous sensory observance is strong.

As always, it is interesting to see how the common law expands and contracts as time goes on and it will be interesting to see where the courts go from here.

Lawsuit filed against OceanGate, the company involved in the submersible implosion on the way to the Titanic

You may recall that last year a controversial company named OceanGate was involved in an accident that resulted in the death of a number of people in a submersible on the way to visiting the remains of Titanic.  If not, google it, it was all over the news.  I say "controversial" because following the news of the disappearance of the submersible, and the long rescue attempt, news surfaced about the very questionable - to say the least - practices of the company, including reports that documented its reckless handling of safety issues.  (There was a 60 Minutes segment, among many others.  Some of those programs are available on YouTube.  See here and here for example.)

Given this uncovered safety - or lack thereof - history, it is not surprising that the family of a French citizen who died in the implosion has filed wrongful death lawsuit against OceanGate, which, also not surprisingly, has ceased operations.

You can read about the newly filed claim in The Guardian, Courthouse News Service, and NPR and The Hill.

Alabama case in which state Supreme Court held frozen embryos are "children" for purposes of wrongful death settles and is dismissed

 The lawsuit that led to a highly-publicized Alabama Supreme Court ruling that frozen embryos in a lab count as “minor children,” was dismissed Wednesday after plaintiffs settled their wrongful death claims against the in vitro fertilization (IVF) clinic and Mobile hospital.  Go here for the full story. 

This result is important for the parties, of course, but the more important part of the story was the ruling of the Alabama Supreme Court back in February.  You can read my posts on that decision here, here and here.