Utah Law Developments
| Jurisdiction | United States,Federal,Utah |
| Pages | 36 |
| Publication year | 2015 |
| Citation | Vol. 28 No. 5 Pg. 36 |
| Date | 01 October 2015 |
September, 2015
Appellate Highlights
Rodney R. Parker, Dani Cepernich, Nathanael Mitchell, Adam Pace, and Taymour Semnani, and Jordan Call, J.
EDITOR’S NOTE: The following appellate cases of interest were recently decided by the United States Tenth Circuit Court of Appeals, Utah Supreme Court, and Utah Court of Appeals.
Ortiz v. United States ex rel. Evans Army Cmty. Hosp. 786 F.3d 817 (10th Cir. May 15, 2015)
The plaintiff, the husband of an active-duty service member in the Air Force, filed suit against the United States seeking compensation for their child’s injuries resulting from an in utero deprivation of oxygen during a Caesarean section. The Tenth Circuit held that it lacked jurisdiction over the plaintiff’s claim under the Feres doctrine, which represents a limited judicial exception to the federal government’s broad waiver of sovereign immunity under the Federal Tort Claims Act for “injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” Id. at 820 (emphasis omitted). The Feres doctrine had previously been applied broadly to preclude suits by third parties that derive, directly or indirectly, from injuries to service members incident to military duty. As a matter of first impression, the Tenth Circuit held that it was bound to apply the “genesis test, ” and specifically the injury-focused approach to that test, as opposed to the treatment-focused approach, for in utero cases. Applying the appropriate test, the Tenth Circuit held that the child’s injury was derivative of an injury to the mother.
Pre-Paid Legal Servs., Inc. v. Cabill 786 F.3d 1287 (10th Cir. May 26, 2015)
Section 16 of the Federal Arbitration Act, 9 U.S.C. § 16(a)(1)(A), confers jurisdiction over an appeal from an order lifting a stay of litigation, not simply “refusing a stay” as stated in the statute.
Browder v. City of Albuquerque, 787 F.3d 1076 (10th Cir. June 2, 2015)
Plaintiff’s complaint alleged that off-duty police officer inexplicably “used his official squad car and activated its emergency lights and proceeded to speed through surface city streets at more than 60 miles per hour over 8.8 miles through eleven city intersections and at least one red light – all for his personal pleasure, on no governmental business of any kind[, ]” eventually colliding with and killing plaintiff. Id. at [9]. Defendant moved to dismiss plaintiff’s 42 U.S.C. § 1983 claim on grounds of qualified immunity. The court held that a § 1983 claim survives a motion to dismiss for qualified immunity where the officer exhibits a conscience-shocking deliberate indifference to the lives around him, and this constitutes a deprivation of substantive due process.
Mathis v. Huff & Puff Trucking, Inc. 787 F.3d 1297 (10th Cir. June 2, 2015)
Following a bench trial, a personal injury plaintiff appealed the denial of his motion for a new trial. Among other things, the plaintiff argued a new trial was warranted because the district judge’s law clerk had a conflict of interest and the judge failed to adequately screen the law clerk. The Tenth Circuit disagreed. Acknowledging that provisions of the Code of Judicial Conduct applied to law clerks, the Tenth Circuit held that no actual conflict of interest existed where the clerk’s husband attended the trial as an informal observer on behalf of a non-party insurer. The Tenth Circuit then analyzed whether the judge should have recused under 28 U.S.C. § 455(a), which governs judicial disqualification. The Tenth Circuit acknowledged that a clerk’s relationships or conflict of interest may be imputed to the judge and jeopardize the appearance of impartiality if the clerk is allowed to continue substantively working on the case. Analogizing to similar cases in other jurisdictions, the Tenth Circuit held that the trial court did not abuse its...
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