Court Dismisses Without Hearing in Qui Tam Action

• Author: Benjamin E. Long
• Pages: 24-25

Published in Litigation News Volume 47, Number 3, Spring 2022. © 2022 b y the American Bar Ass ociation. Reproduc ed with permission. A ll rights reserv ed. This information or an y portion there of may not be copied or dis seminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

ity issues.” Fox also suggests including

a severability clause. “Even if a court

f‌inds your provision in violation of the

CSA, the remainder of the contract will

still remain in eect, thus providing the

opportunity for other means of recov-

ery,” she notes.

“There are always intricacies

with contract drafting,” notes Lisa J.

Dickinson, Spokane, WA, cochair of the

ABA’s TIPS Cannabis Law and Policy

Task Force. “The arena for litigating

these clauses is wide open right now,

and I look forward to seeing the law

evolve accordingly.”

Court Arms Hotel

Is Not Responsible

for Snorkeling Death

By Ashlee E. H amilton, Litigation

News Contributing Editor

As the hospitality industry contin-

ues to recover, a federal appellate

court has held that a guest’s drown-

ing was not caused by any breach of

duty of care by the resort. In Baum-

Holland v. Hilton El Con Management,

LLC, the plaintis accused a resort of

negligence after a guest died while

snorkeling. When presented with a

dispute regarding the cause of death,

the court armed summary judgment

in favor of the resort. ABA Litigation

Section leaders advise the hospital-

ity industry to warn patrons and get

releases of liability as it continues to

navigate the COVID-19 pandemic.

A doctor and his family were vaca-

tioning at a resort in Puerto Rico. While

snorkeling near a small uninhabited

island, the doctor suddenly became

unresponsive. The doctor’s family

members, employees of the resort, and

other guests administered CPR, but he

was pronounced dead upon arriving at

the local hospital.

The doctor’s family sued the resort

in the U.S. District Court for the District

of Puerto Rico, alleging failure to warn

of dangerous sea conditions, failure

to give timely and appropriate aid,

and failure to provide safety gear. The

plaintis alleged drowning as the doc-

tor’s cause of death based on evidence

of f‌luid in his sinus and lack of oxygen-

ation. But other evidence suggested

that, based on his obesity, untreated

hypertension, and atherosclerosis, the

doctor had suered a heart attack.

Granting summary judgment for the

hotel, the district court held that the

plaintis failed to “submit evidence

that establishes a duty of care that was

breached by [the resort].” Specif‌ically,

they did not present evidence that it

was “foreseeable that [the doctor’s]

event was bound to occur or that the

doctor would have survived if f‌irst aid

were provided by [the resort].” The

court also found that a release of liabil-

ity signed by the doctor waived the

plaintis’ claims.

On appeal, the U.S. Court of

Appeals for the First Circuit armed,

holding that the district court prop-

erly resolved any conf‌licting evidence

regarding the cause of the doctor’s

death. It found that “[a]ppellants

have not met their burden of show-

ing that it is more likely than not that

[the resort’s] alleged failure to warn

[the doctor] of the ocean conditions

caused [the doctor’s] death by drown-

ing.” The court did not address the

signed release because it armed

summary judgment on other grounds.

“Typically, in a summary judgment

hearing, judges defer factual matters

to the jurors,” notes John S. Austin,

Raleigh-Durham, NC, cochair of the

Litigation Section’s Trial Practice

Committee. “However, in this case, it

appears that the plaintis failed to pro-

duce sucient evidence showing that

the doctor drowned,” he says.

“Plaintis did not submit evidence

that would permit a reasonable infer-

ence that the doctor would have sur-

vived if f‌irst aid had been administered

to him by the resort rather than admin-

istered by the doctor’s friend, who had

lifeguard and CPR trainings,” explains

Angela Foster, North Brunswick, NJ,

cochair of the Section’s Trial Evidence

Committee.

As the COVID-19 pandemic con-

tinues, Section leaders suggest the

hospitality industry might learn les-

sons from Baum. For instance, hotels

should consider revising their release

forms. “Signing a release or assump-

tion of risk requires that the plainti

must have known that there was a

risk of the same sort of injury that the

plainti actually suered and that the

plainti voluntarily took on that danger

in participating in the activity,” advises

Foster.

In addition, hotels should provide

adequate warnings of the risks involved

in certain activities. In the COVID-19

context, this may involve warning hotel

patrons of the risk of infection. “The

hospitality industry may want to look

into releases related to people being in

closer contact and violating social dis-

tancing. If people want to participate in

certain activities, it would be good for

the release to warn people about com-

ing within six feet of each other,” com-

ments Austin.

Court Dismisses

Without Hearing in

Qui Tam Action

By Benjamin E . Long, Litigation News

Tea m Edit or

A federal appeals court conf‌irmed that

a False Claims Act (FCA) lawsuit may

be dismissed without f‌irst giving the

claimant an in-person hearing. Federal

law aords claimants only “an oppor-

tunity for a hearing” on a motion to

dismiss. ABA Litigation Section leaders

caution that practitioners should be

sure to explicitly request a hearing if

they want one.

The FCA outlaws the making of

false claims for payment against the

United States. To help enforce the law,

the FCA allows third parties who are

aware of such false claims, called rela-

tors, to f‌ile a qui tam lawsuit against

the alleged oender. If successful,

relators may get a percentage of any

amount recovered.

Once a relator f‌iles a qui tam action,

the government can review the claim

and decide whether it will prosecute

the lawsuit. If the government does

not intervene, the relator may pros-

ecute the action. Whether or not it

chooses to intervene, the government

may move to dismiss the case at vari-

ous points in litigation, but the relator

must be notif‌ied of the motion and be

given “an opportunity for a hearing on

the motion.”

In Chang v. Children’s Advocacy

Center of Delaware, a relator f‌iled a

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