In one case, a settlement amount was negotiated over a period of 9 months, during which time a lender asked for and received multiple rounds of updated financial statements — ostensibly to gauge my clients’ ability to pay, and to make sure that none of my clients had won the lottery since the last round of financials was submitted. The parties agreed that the settlement amount would become final unless a further round of financial disclosures showed an “upward variance” in ability to pay.

Eight months later, and eighteen months after negotiations began, a letter abruptly “rejected” the settlement amount because “[a]fter a review of the financial documents submitted in support of the offer, it is the bank’s opinion that the offer is not aligned with [my] clients’ ability to pay.”

Exactly when and how the lender formed its “opinion” was left unspecified.  After there was no response to our requests for an explanation, we filed a motion to enforce the settlement amount, on grounds that there was no showing of any “upward variance” in ability to pay.

The second case is the subject of an article published by Crains today. See
http://www.chicagorealestatedaily.com/article/20110913/CRED0701/110919971/high-end-home-builder-sues-lender

In this case, a bank agreed, in multiple emails outlining settlement terms, to indemnify our client against a third party claim, subject to a cap of $18,000.  Later, the parties entered into a written settlement agreement as part of the arrangement contemplated by their previous negotiations.  That agreement did not include one of the indemnified entities as a party, and was silent as to the right of indemnification.  When a suit was filed by the third party, the lender took the position that the failure to include the indemnification as a “carve out” from the written settlement agreement had extinguished that right.  We filed a complaint seeking damages for breach of the settlement agreement.

The whole purpose of a settlement is to bring hostilities to an end. It is truly discouraging when the settlement agreement itself becomes a bone of contention.

I briefed and argued this habeas corpus appeal in the Seventh Circuit 20 years ago — and lost.  I was a young lawyer then, and this was one of the many pro bono cases that Jenner & Block routinely took as part of its unique dedication to providing legal services to the indigent.

This case still troubles me when I think about it from time to time. Randy Brackett, my young client (he was then in his twenties) was convicted of felony murder because he sexually assaulted an elderly woman (she was over 80), who sustained non life-threatening  injuries in the attack, was briefly hospitalized, and thereafter moved to a nursing home.  There, she became depressed, refused to eat, and, some five weeks later, was choked to death by an overzealous attendant who — in an apparent attempt to force-feed her — injected 6 ounces of pureed broccoli into her throat. The autopsy reported that the victim’s trachea was full of pureed broccoli at the time of her death, by asphyxia.

After the victim was choked to death, five weeks after the assault, in the nursing home, the state upgraded the charges against Brackett from aggravated sexual assault to felony murder, on the theory that Brackett caused the victim’s death by inflicting fatal psychological injuries during the commission of the sexual assault, a felony.

The prosecution called this “psychological murder.”  They argued that my client killed the victim by causing her to become depressed, which caused her to be placed in a nursing home, which caused her to become more depressed and to refuse to eat, which ultimately led to her being choked to death with pureed broccoli by an overzealous attendant.

According to a January 8, 1982 article in the St. Louis Post Dispatch, Madison County State’s Attorney Don Weber “acknowledged that charging murder under such circumstances was unusual. He said the most similar case he could find in Illinois was that of a man who died of pneumonia while being treated for a gunshot wound.”  Another article, entitled “Psychological Murder Case Called Unprecedented by State’s Attorney,” appeared in the St. Louis Globe Democrat on February 5, 1982. That article quoted Weber as stating that “[the c]ase [against Brackett] is unprecedented.  He [(Weber)] and his staff have researched other murder cases, he says, and ‘haven’t found any that involve the psychological element we’re talking about.’  ‘What we’ve got here is an intervening cause — which is this woman saying that she doesn’t want to live,’ Weber said. ‘We attribute this to the rape.’ ‘There have been murder convictions in Illinois in connection with deaths that occurred some time after an attack, but the causal relationship was more obvious,’ Weber said.”

The facts raised interesting legal issues about causation.  Causation that gives rise to civil liability (so-called “proximate cause”)  had been famously examined (and limited) in the seminal case of Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928), a decision by Benjamin Cardozo.

In Palsgraf, a train passenger carrying a package, while hurrying to catch and board a moving Long Island Rail Road train, appeared to two of the railroad’s employees to be falling. The employees were guards, one located on the train car, the other on the platform. The guard on the car attempted to pull the passenger into the car while the guard on the platform attempted to push the passenger into the car from behind. The guards’ efforts to aid the passenger caused the package the passenger was holding to fall on the rails. Unbeknownst to the guards, the package, which was approximately 15 inches long and wrapped in newspaper, contained fireworks, and exploded when it hit the rails. The shock reportedly knocked down scales at the other end of the railroad platform (although conflicting accounts suggest that a bystander startled by the explosion may have upset the scale), which fell on, and injured Mrs. Helen Palsgraf. Palsgraf sued the railroad, claiming her injury resulted from negligent acts of the railroad guards. The trial court and the intermediate appeals court found for Palsgraf by verdict from a jury, and Long Island Rail Road appealed the judgment.

On appeal, in a seminal opinion authored by Justice Cardozo, the court reversed and dismissed Palsgraf’s complaint, on grounds that the relationship of the guards’ actions to Palsgraf’s injury was too indirect to make them – or their employer – liable.  Cardozo’s opinion created what has become known as the “Palsgraf Rule” — the notion that negligent conduct resulting in injury will result in a civil liability only if the actor could have reasonably foreseen that the conduct would injure the victim.

The long and convoluted chain of causation in Palsgraf (reminiscent of a Rube Goldberg cartoon) has been modified for humorous effect and acted out by Lego pieces in a very clever tongue-in-cheek video on YouTube:

Unlike Palsgraf, Brackett was a criminal case, and therefore subject to a higher standard of proof — proof beyond a reasonable doubt, not just by a preponderance of the evidence (more likely than not).

Was Brackett properly convicted of felony murder because the state had proved — proved beyond a reasonable doubt – that his conduct had caused — in a legal sense — the victim’s death?

In our reply brief, we argued that the district court correctly found that none of the physical injuries attributed to Bracket caused the victim’s death, but had improperly salvaged Brackett’s conviction on grounds that the state court “must have considered psychological damage to be a cause of death on which to base a murder conviction.”  We argued that the conviction could not be salvaged on that basis because no competent evidence regarding the cause of the victim’s depression was presented at trial; the opinions of the Illinois Appellate Court and Supreme Court showed that each of those decisions was based on physical, not psychological  links between the defendant’s conduct and the victim’s death; and even if Brackett’s conduct had been proven to be the cause of the victim’s depression, the victim did not die of depression:  She died because a nurse’s aid “stuffed” over six ounces of pureed food down her windpipe.

 * * *

Before the oral argument, I thought that this sort of case was precisely the sort of intellectual puzzle that would appeal to Justice Posner.

It appears that I was right.  When the day came to argue the case, Justice Posner was one of the three Justices on the panel, and it was he who later was the lead author of the Court’s opinion.

I argued that the careless injection of pureed broccoli into the victim’s throat five weeks after the assault was an intervening, superseding cause, and that my client could not foresee, at the time of the assault, that that would occur as a result of his admittedly heinous actions.

That argument did not carry the day.

The panel  found that my client was properly convicted of felony murder first, because but for his conduct the victim would not have been in the nursing home, and second, because his conduct made her death more likely, presumably because it weakened her, and made her more vulnerable to the impatience of a careless attendant . . . .

The Brackett case has been cited for the notion that for purposes of the “eggshell skull rule,” “psychological vulnerability is on the same footing as physical  [vulnerability].”

According to Brackett, a sexual assault becomes felony murder if the victim becomes suicidally depressed, and dies weeks thereafter as a result of the careless act of a third party, if a) the victim would not have been in that situation but for the assualt, and b) the assault made the death more likely.

Did the assault make it more likely that five weeks later a careless nurse’s assistant would inject 6 ounces of pureed broccoli into the victim’s trachea?  If so, should that be the basis for a conviction of felony murder, or should the Court have borrowed more extensively from Palsgraf?

What do you think?