Defense Counsel Journal

IADC Amicus Briefs - Volume 87, Number 3

July 21, 2020

The IADC amicus curiae program has been active in recent months. The following briefs were filed by the IADC since the last Defense Counsel Journal issue: 

IADC Files Amicus Brief in Utah Supreme Court to Uphold Punitive Damage Waivers (6/17/2020)

Doterra Int’l, LLC v. Kruger, Case No.20191040-SC

The IADC filed an amicus brief in the Utah Supreme Court urging the Court to enforce the validity of preinjury punitive damages waivers. The plaintiff, Kruger, signed up for a doTerra program where she, among other things, signed a contract agreeing that doTerra would not be liable for punitive damages, and doTerra provided discounted products, sales support and a bonus compensation plan. She claimed personal injury while using a doTerra product and sought punitive damages. The IADC brief explains that the courts should uphold the parties’ agreements. Further, pre-injury waivers should not be invalidated as a matter of law, but assessed on a case-by-case basis and upheld here. Thanks to John Anderson and Lauren E.H. DiFrancesco of Stoel Rives for an excellent brief.

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IADC Files Amicus Brief in Arizona Supreme Court to Urge the Court to Hear a Case that Would Unwisely Expand the Negligence Per Se Doctrine (6/15/2020)

Wing v. U-Haul Int’l, Inc., Case No. CV-20-0081-PR

The IADC filed an amicus brief in the Arizona Supreme Court urging the Court to grant review in a case where the Court of Appeals improperly expanded the negligence per se doctrine. In Arizona, the “actual rule on the negligence per se doctrine is that unless the statute is construed to impose an absolute duty, its violation may be excused.” Here, the plaintiffs were injured in Arizona and alleged the truck and a tow dolly they rented violated an Arizona law allegedly requiring brakes on the tow dolly. The plaintiffs rented the truck and tow dolly in Oregon, though, which did not have such a law. Further, the Arizona law was ambiguous as to whether it even applied to tow dollies. Accordingly, the jury found the negligence per se claim was excused. The Court of Appeals then limited the doctrine’s exceptions, making it a rigid test that would not allow for such exceptions. The Arizona Chamber of Commerce joined IADC on the brief. Thank you to Jessie Zeigler of Bass Berry & Sims, PLC and Elizabeth Fitch of the Righi Fitch Law Group on an excellent brief.

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IADC Files Amicus Brief in Tennessee Supreme Court Opposing Use of State Drug Dealer Liability Act Against Pharmaceutical Companies (6/12/2020)

Effler v. Purdue Pharma L.P., Case No. E2018-01994-SC-R11-CV 

The IADC filed an amicus brief in the Tennessee Supreme Court opposing the use of the state Drug Dealer Liability Act (DDLA) against pharmaceutical companies for selling approved medicines through licensed distribution channels. In the case, contingency fee attorneys recruited the local District Attorneys to file DDLA claims against manufacturers of approved opioid medications. As the brief explains, the DDLA was enacted to fight local street drug crime, not penalize pharmaceutical manufacturers that are operating within the highly regulated market for FDA-approved medications. Congrats to Dick Neumeier of Morrison Mahoney and Charles Michels of Taylor, Pigue, Marchetti & Blair for a great brief.

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Eleventh Circuit Sides with IADC Amicus Brief in Ruling for FedEx on Honest Belief Rule in Age Discrimination Cases (5/21/2020)

In May, the U.S. Court of Appeals for the Eleventh Circuit issued a ruling in Melvin v. Federal Express Corp., that followed the arguments the IADC set forth in its amicus brief in the case. A man who had worked for FedEx for some 33 years, alleged that his firing violated the Age Discrimination in Employment Act, which prohibits firing an employee who is at least 40 years of age “because of” the employee’s age and retaliating against him for engaging in protected activity. He argued that while he did not have explicit proof of age discrimination, he created a “convincing mosaic” of circumstantial evidence showing FedEx terminated his employment because of his age. This mosaic of evidence related to comments made to him by the person who became his supervisor and ultimately fired him. The supervisor asserted that the worker was fired for cause, as the worker had been issued several disciplinary letters related to his leadership failure and poor performance before his termination. 

The trial court had granted FedEx’s motion for summary judgment. It found there was no evidence to refute that the supervisor’s grounds for firing the worker were based on his “honest, good-faith belief” that the worker had violated his directives. The Eleventh Circuit affirmed, saying that the employee did not provide sufficient evidence to raise a reasonable inference that FedEx discriminated against him because of his age or retaliated against him. The IADC amicus brief, which was authored by Spencer Silverglate and Shannon McKenna of Clarke Silvergate, P.A., explained the importance of summary judgment rulings in such cases and urged the court to reaffirm the “honest belief” rule. This is a major win for employers. Here is the ruling and the IADC brief.

For information on the IADC's amicus brief program and to view past briefs, please visit the Amicus Briefs page on the IADC website.

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