Analysis

5 Barrett Med Mal And Injury Rulings Attys Should Know

Law360 (October 9, 2020, 6:56 PM EDT) -- During her three-year tenure as a Seventh Circuit judge, U.S. Supreme Court nominee Amy Coney Barrett has shown a rigorously by-the-books approach to medical malpractice and personal injury cases, including on liability issues involving the use of excessive force by police that may one day come before the high court.

Her record in such cases does not reveal any pro-plaintiff or pro-defendant tendencies, and the judge has ruled on both sides of the hot-button issue of qualified immunity for police officers.

Leading up to four days of confirmation hearings starting Monday, Judge Barrett, whom President Donald Trump tapped to fill the seat held by the late Associate Justice Ruth Bader Ginsburg, cited one excessive force case as being among the 10 most significant cases she's handled during her Seventh Circuit tenure.

The main theme underlying the judge's decisions has been her orthodox approach to jurisprudence and statutory requirements, keeping with a strict constructionist approach favored by conservatives who often decry "judicial activism," and sometimes butting heads with more liberal members of the court.

For example, in one medical malpractice case involving claims against the federal government, Judge Barrett found the pro se plaintiff had not exhausted all her administrative remedies as required by the Federal Tort Claims Act. This prompted a spirited reply from Judge Ilana Rovner, who said pro se plaintiffs should be held to a more flexible standard, describing their legal odyssey as being like that of the wide-eyed baby bird in the popular children's book "Are You My Mother?"

Here, Law360 highlights five key rulings written by Judge Barrett related to personal injury and medical malpractice.

Chronis v. U.S.

In this case, the prospective justice authored a July 2019 opinion in which the court voted 2-1 to affirm the dismissal of a suit accusing a federally funded health clinic of botching a patient's gynecological procedure, which caused minor injuries and led to $332 in medical expenses.

Plaintiff Anna Chronis had argued on appeal that a letter sent to the Centers for Medicare and Medicaid Services seeking guidance on how to pursue a claim against the clinic, University of Illinois Mile Square Health Center, was sufficient to demonstrate she exhausted her administrative remedies as required by the FTCA.

But Judge Barrett's opinion stated that under the FTCA, an administrative claim must first be filed with the federal government, and only after the claim is either rejected or left unanswered for six months can a lawsuit be filed against the government.

The judge said even if the court were to consider Chronis' letter as a claim, she failed to state the amount of damages she was seeking.

"A claimant who neither makes it clear that she is demanding money from the agency nor says how much she is demanding thwarts the settlement process envisioned by the FTCA," she wrote in the opinion. "There is a difference between generously construing a pro se complaint and effectively excusing a pro se plaintiff from the statutorily mandated exhaustion requirement."

Her opinion stood in stark contrast with Rovner's dissent, which stated Chronis' "odyssey" of being repeatedly ignored or rebuffed — first by the doctor, then the clinic, then various state and federal agencies — mirrored the plight of the newborn baby bird in the P.D. Eastman children's book "Are You My Mother?", in which the hatchling asks various animals and machinery such as a steam shovel if they are his mother.

"As this case demonstrates all too well, modern litigation contains so many traps and barriers that it is near to impossible for non‐lawyers to successfully navigate it," Judge Rovner said. "Despite Chronis' valiant and persistent efforts, the majority finds that she failed to say the magic words in the correct format and in the correct place, and therefore the sophisticated steam shovel rolled right over her, as it will other injured pro se plaintiffs who cannot afford to hire lawyers to recover small sums."

The case is Anna Chronis v. U.S., case number 17-3093, in the U.S. Court of Appeals for the Seventh Circuit.

Boogaard v. National Hockey League

In May 2018, Judge Barrett penned a unanimous opinion affirming the dismissal of a wrongful death suit filed by the parents of deceased NHL hockey player Derek Boogaard, finding the lower court rightly tossed the suit after the family did not respond to one of the league's arguments.

The Seventh Circuit panel agreed that Len and Joanne Boogaard had sealed their fate when they did not respond to the NHL's argument that they failed to state a claim in the suit, which accused the league of causing their son to become addicted to painkillers and die from an overdose of Percocet shortly after he left a rehab facility.

The 13-page opinion devotes three pages to "housekeeping" matters and admonishing the Boogaards for failing to address certain jurisdictional issues. On the merits, Judge Barrett found the family gave "short shrift" to one of two arguments posed by the NHL — that they forfeited their claims by failing to respond to the argument that they failed to state a claim.

"It is hard to fault the Boogaards for lodging a weak challenge to the district court's forfeiture holding because there are no strong arguments available against it," Judge Barrett wrote.

"When the NHL moved to dismiss on grounds the Boogaards claim to believe were impliedly foreclosed, the prudent course was to clarify matters with the district court or respond to those arguments anyway," she added. "By remaining silent, the Boogaards took the risk that the district court would hold their claims forfeited. The court acted well within its authority when it did."

The case is Boogaard et al. v. National Hockey League et al., case number 17-2355, in the U.S. Court of Appeals for the Seventh Circuit.

Clanton v. U.S.

Judge Barrett led a Seventh Circuit panel in largely affirming a $31 million bench verdict in a suit accusing a federally funded clinic of causing a patient's kidney failure.

The panel in November 2019 unanimously declined to vacate U.S. District Judge Nancy J. Rosenstengel's decision to award patient Kevin Clanton $31.2 million, including about $13.8 million in noneconomic damages for pain and suffering.

The FTCA suit accused Southern Illinois Healthcare Foundation of failing to properly treat Clanton's high blood pressure, which led to kidney failure and ultimately required a transplant.

The government had argued on appeal that even though the FTCA requires a judge or jury to consider noneconomic damages in comparable cases, Judge Rosenstengel failed to take into account two similar kidney injury cases decided in Hawaii federal court in which the noneconomic damages awarded were substantially lower.

Judge Barrett disagreed, siding with the trial judge's reasoning that because Hawaii has a partial cap on noneconomic damages, those two cases do not make for ideal comparisons.

"It was therefore within the district court's authority to determine that dissimilarities between those cases and Clanton's outweighed their usefulness to the gross award comparison," the panel said.

However, the panel remanded the case for further proceedings, finding the judge failed to apply Illinois' "reasonable person" standard for comparative negligence. Judge Rosenstengel kept the award intact in an April ruling.

The government has lodged a second Seventh Circuit appeal which is currently pending.

The case is Kevin Clanton v. U.S., case number 18-3060, in the U.S. Court of Appeals for the Seventh Circuit.

Torry v. City of Chicago

In August 2019, Judge Barrett wrote the opinion for a unanimous ruling granting qualified immunity to three Chicago police officers who pulled over and temporarily detained three Black men because a drive-by shooting had been reported in the area four hours earlier.

The men, who were driving to an auto parts store, had alleged their Fourth Amendment rights were violated when the officers improperly conducted the so-called Terry stop, or when police stop and frisk a person under a "reasonable suspicion" of wrongdoing — as sanctioned by the U.S. Supreme Court in its 1968 Terry v. Ohio decision.

The men contended the officers couldn't establish reasonable suspicion because they later had no recollection of the traffic stop, part of which was recorded by a smartphone.

Judge Barrett and the rest of the panel found that the Fourth Amendment does not dictate how an officer can prove he or she had reasonable suspicion for a Terry stop, and an officer can rely on evidence other than his or her memory to justify the stop.

"The police report demonstrates that [the responding officer] knew that the suspects in the shooting had been identified as three Black men driving a gray car, and the cellphone video shows him giving the shooting as the reason for the stop," Judge Barrett wrote.

Addressing the issue of qualified immunity, the court found the men failed to show that the alleged constitutional violation was "clearly established" by case law prior to the 2014 incident, as required by U.S. Supreme Court precedent.

Judge Barrett wrote that there has never been a case of denied qualified immunity with men who "partially matched" the description of shooting suspects.

"The plaintiffs matched this description in number, race and car color," she wrote.

The case is Torry et al. v. City of Chicago et al., case number 18-1935, in the U.S. Court of Appeals for the Seventh Circuit.

Rainsberger v. Benner

In another qualified immunity case, Judge Barrett penned an opinion in January 2019 allowing a case to move forward against a police detective accused of wrongfully arresting a man on suspicion of killing his elderly mother.

William Rainsberger spent two months in prison in a criminal case that was ultimately dropped by an Indiana prosecutor. He claims detective Charles Benner submitted a probable cause affidavit that was "riddled with lies and undercut by the omission of exculpatory evidence."

According to Rainsberger, Benner didn't wait for DNA results that showed genetic material from two unidentified men at the crime scene and included cellphone records and surveillance video in a probable cause affidavit that was later revealed to undermine the detective's belief that Rainsberger bludgeoned his mother to death.

Judge Barrett wrote that Benner was not entitled to qualified immunity because case law has been clearly established that using "deliberately falsified allegations to demonstrate probable cause" is a violation of an individual's Fourth Amendment rights.

"The unlawfulness of using deliberately falsified allegations to establish probable cause could not be clearer," Judge Barrett wrote.

The judge cited the case as one of the 10 most significant cases she handled during her Seventh Circuit tenure.

The case is William Rainsberger v. Charles Benner, case number 17-2521, in the U.S. Court of Appeals for the Seventh Circuit.

--Editing by Philip Shea and Kelly Duncan.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

Len Boogaard, et al v. National Hockey League, et al


Case Number

17-2355

Court

Appellate - 7th Circuit

Nature of Suit

3720 Labor/Management Relations Act

Date Filed

June 30, 2017


Case Title

William Rainsberger v. Charles Benner


Case Number

17-2521

Court

Appellate - 7th Circuit

Nature of Suit

3440 Other Civil Rights

Date Filed

July 26, 2017


Case Title

Anna Chronis v. USA


Case Number

17-3093

Court

Appellate - 7th Circuit

Nature of Suit

2362 Medical Malpractice

Date Filed

October 11, 2017


Case Title

Marcus Torry, et al v. City of Chicago, et al


Case Number

18-1935

Court

Appellate - 7th Circuit

Nature of Suit

3440 Other Civil Rights

Date Filed

April 27, 2018


Case Title

Kevin Clanton v. USA


Case Number

18-3060

Court

Appellate - 7th Circuit

Nature of Suit

2362 Medical Malpractice

Date Filed

September 25, 2018

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