Case Information
‐ 2410 ‐ cv Munn v. Hotchkiss Sch.
United States Court Appeals For Second Circuit
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A UGUST T ERM ,
A RGUED : M AY D ECIDED : A UGUST No. ‐ ‐ cv
O RSON D. M UNN , III, AS P ARENT & N EXT F RIEND OF C.M. & I ND ., C HRISTINE
M UNN , AS P ARENT & N EXT F RIEND OF C.M. & I ND ., C ARA L. M UNN , Plaintiffs Appellees,
T HE H OTCHKISS S CHOOL ,
Defendant Appellant.
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Appeal from United States District Court District Connecticut. – Stefan R. Underhill, Judge . ________
Before: W ALKER L YNCH L OHIER , Circuit Judges .
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Cara Munn her parents brought suit Hotchkiss School after contracted tick encephalitis ‐ organized China. At trial, found negligent awarded Munns $41.5 million damages, $31.5 which were non ‐ economic damages. On appeal, school argues did have legal duty warn about or protect against tick borne encephalitis jury award excessive. Although we agree with plaintiffs there sufficient evidence find Munn’s illness foreseeable, we are unable determine whether public supports imposing legal duty on Hotchkiss. This case implicates important unresolved issues state law public policy. It likely repercussions on future cases Connecticut, existing law provides insufficient guidance some issues raised. Accordingly, we certify two questions Court: (1) Does support imposing protect serious insect disease organizes abroad? If so, does award approximately $41.5 million favor plaintiffs, $31.5 million non ‐ economic damages, warrant remittitur?
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W ESLEY W. H ORTON Horton, Shields & Knox, P.C., Hartford, CT (Karen L. Dowd, Kenneth J. Bartschi, Horton, Shields & Knox, P.C., Hartford, CT, Aaron S. Bayer, Jeffrey R. Babbin, Wiggin Dana LLP, New Haven, CT, brief ), Defendant Appellant . A NTONIO P ONVERT III, Koskoff Koskoff & Bieder, Bridgeport, CT (Alinor C. Sterling, Koskoff Koskoff & Bieder, Bridgeport, CT, on brief ), Plaintiffs ‐ Appellees.
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J OHN M. W ALKER J R ., Circuit Judge :
Cara Munn and her parents brought suit against Hotchkiss School after contracted tick borne encephalitis on a school ‐ organized trip China. At trial, a jury found negligent awarded Munns $41.5 million damages, $31.5 which were non ‐ economic damages. On appeal, school argues did have legal duty warn about or protect against tick borne encephalitis jury award excessive. Although we agree with plaintiffs there sufficient evidence find Munn’s illness foreseeable, we are unable determine whether public supports imposing legal duty on Hotchkiss. This case implicates important unresolved issues state law public policy. It likely repercussions future cases Connecticut, existing law provides insufficient guidance some issues raised. Accordingly, we certify two questions Court: (1) Does support imposing protect serious insect disease organizes abroad? If so, does award approximately $41.5 million favor plaintiffs, $31.5 million non ‐ economic damages, warrant remittitur?
BACKGROUND
We recite facts in the light most favorable to the plaintiffs in light verdict in their favor. See Jacques DiMarzio, Inc. F.3d (2d Cir. 2004). A. The Trip to China
During her freshman year, Cara (“Munn”), then a fifteen ‐ year old student School (“Hotchkiss”), a private boarding school, decided to participate a summer program Tianjin, China, organized by Hotchkiss. The month long program immersed students Chinese language classes and included weekend trips cultural landmarks.
Jean Yu, school’s Chinese Language and Culture Program Director, served as leader. preparation for trip, March she sent parents packet outlining activities and a set legal forms for participants parents waive legal claims school. The packet mentioned visit Mount Panshan, referred parties as “Mt. Pan.” The school sent medical advice trip, including link Centers Disease Control Prevention (“CDC”) webpage note school’s infirmary “serve travel clinic.” Special App’x . The webpage linked CDC’s Central America site instead China site, however, infirmary unable provide independent medical advice. Finally, sent itinerary, packing list, handbook international travel. packing list mentioned bug spray “miscellaneous” category, but included no warning insect borne diseases the section where health risks were mentioned.
On June while trip, the students went a weekend excursion to Great Wall and to Mt. Pan. Mt. Pan a forested mountain. Again, warnings to wear bug spray were given. Trip leader Yu left her bug spray bus. After hiking to top mountain, a group three four students, including Munn, decided to hike down, while others took cable car. Yu pointed them to path and said she would wait them at bottom. Munn testified students decided leave paved path and follow narrow dirt trails instead. students got lost and walked among trees and through brush.
Munn testified trial after Mt. Pan she had many insect bites itchy welt her left arm. Ten days later, she awoke with headache, fever, wooziness. Her condition deteriorated rapidly she was taken local hospital. Munn was then transferred Beijing hospital her parents came from United States. Severely ill partially paralyzed, Munn soon airlifted back New York. Munn diagnosed with tick encephalitis (“TBE”), viral infectious disease which affects central nervous system.
Because her illness, lost ability speak. At trial, she testified through machine into she typed her answers. She difficulty controlling her facial muscles, causing her drool. Her mother testified about Munn’s frustration with her inability to speak and stated Munn experiences “a lot rejection.” Joint App’x . Munn has lost some cognitive function, particularly terms reading comprehension and math. Still, Munn has managed to live functional life. She finished high and attended Trinity College. She can play sports, still travels, and held summer internships.
B. Procedural History
On June and her parents filed diversity action against Hotchkiss alleging school’s negligent planning careless supervision caused her illness. their lawsuit, Munns alleged Hotchkiss negligent
1) failing to warn Munns risks viral encephalitis; 2) failing provide for proper protective clothing, insect repellent, vaccinations; 3) failing provide medical personnel trip; 4) failing establish procedures addressing medical emergencies; 5) failing advise Munns availability vaccines viral encephalitis children traveling rural areas China. At trial, Munns proceeded only first second theories liability—failure failure protect. asserted number affirmative defenses, including Munns assumed signing school’s “Agreement, Waiver, Release Liability.” However, district (Stefan R. Underhill, ‐ ‐
J. ) excluded waiver, finding both that its language was ambiguous and that was under law.
At trial, plaintiffs offered two experts, Stuart Rose, an expert on travel medicine, and Peter Tarlow, an expert tourism ‐ risk management who testified standards care. Hotchkiss also offered two experts, David Freedman, travel medicine expert, and William Fluharty, proffered expert standards care followed similarly situated schools. The district court, however, excluded Fluharty’s testimony after was given, finding that he had fabricated and misrepresented support his testimony.
At conclusion plaintiffs’ case, Hotchkiss sought directed verdict under Rule 50(a) Federal Rules Civil Procedure, arguing Munn contributed her own injuries that risk contracting TBE unforeseeable. The district denied motion.
On March after seven day trial, jury found Hotchkiss solely liable. Specifically, jury found Hotchkiss negligent failing serious insect illnesses failing ensure she took protective measures. found contributory part Munn. It awarded $10.25 million past future economic damages, $31.5 million non economic damages. renewed Rule motion filed motion new trial under Rule 59. ‐
On June the district court denied both of these motions. Pursuant the parties’ stipulation, it reduced the monetary award by the amount that the Munns had collected from collateral sources. The total award against Hotchkiss is now approximately $41.5 million.
DISCUSSION
Hotchkiss argues appeal that it did not legal duty warn about or protect against tick borne encephalitis that $41.5 million jury award excessive. The school asserts that jury verdict not supported sufficient evidence that contravenes public impose duty warn about or protect against disease remote as tick borne encephalitis.
Because implicates complex unresolved issues state law public policy, we certify two questions law Court: (1) Does support imposition school protect serious insect disease organizes abroad? If so, does award approximately $41.5 million favor plaintiffs, $31.5 million non economic damages, warrant remittitur?
I. Foreseeability
Hotchkiss first argues that there was insufficient evidence support the jury verdict that foreseeable would contract serious insect borne illness the China. We disagree. Upon review of the record, we find that the plaintiffs presented sufficient evidence at trial that should have known of the of serious insect diseases.
We will overturn jury verdict only if there such “complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise conjecture, or such overwhelming amount of evidence favor of the appellant reasonable fair minded men not arrive verdict appellant.” Gronowski v. Spencer , F.3d (2d Cir. 2005) (internal quotation marks alterations omitted). addition, “assessments weight evidence or credibility witnesses for grounds reversal appeal; we defer jury’s assessments both these issues.” Maldonado v. Scully F.3d (2d Cir. 1996).
Under law, legal requires (1) “an ordinary person defendant’s position, knowing what defendant knew or should known, would anticipate harm general nature suffered likely result,” determination “on basis analysis, whether defendant’s responsibility negligent conduct should extend particular consequences particular plaintiff case.” Sic Nunan ‐ 2410 ‐ 399, (2012) (internal quotation marks omitted). Recently, Connecticut Supreme Court reiterated that “as long as harm general nature as that which occurred foreseeable there is basis liability even though manner in accident happens unusual, bizarre unforeseeable.” Ruiz Victory Props., LLC , (internal quotation marks alteration omitted). decisions construe foreseeability broadly. For example,
in Ruiz where ten year old child dropped piece concrete from third floor resulting in injury seven year old child below, Court held that be foreseeable that backyard debris in apartment building would lead injury children used area as playground. reaching conclusion, emphasized that “cases attempted safeguard children tender years from their propensity disregard dangerous conditions.” Id. at (internal quotation marks omitted). Although Cara was several years older than children Ruiz decision can be read indicate courts construe foreseeability broadly, especially relates children.
Here, evidence presented trial sufficient support jury’s verdict Munn’s illness foreseeable. introduced CDC China advisory last modified August included warning “[t]ickborne encephalitis occurs forested regions northeastern China South Korea.” Joint App’x 1892. evidence 2410 showed that Mt. Pan forested mountain in the northeastern Chinese province Tianjin. In addition, Hotchkiss’s expert, David Freedman testified that the August 1, advisory would put school on notice there was risk TBE in northeastern China. Although August 1, advisory dated more than one month after Munn’s visit Mt. Pan, school’s Director International Programs, David Thompson, testified he had seen warning about TBE on CDC’s China page before trip. On direct examination, he answered yes asked if he “recall[ed] seeing information . . . tick borne encephalitis in Northeast China time trip,” Joint App’x acknowledged he “looked at” August 1, advisory preparation trip, Joint App’x . addition, other travel advisories, including CDC advisory dated April 2007—before trip—mentioned serious insect borne diseases, including Japanese encephalitis, notices travel websites government websites warned tick encephalitis East Asia, specifically China. argues appeal found
disease foreseeable based August travel advisory because advisory released after trip. Hotchkiss, which introduced advisory as defense trial exhibit from its own witness testified preparation awareness, now attempts discredit own exhibit. instead asks us consider earlier advisory dated May 2007, which does not mention TBE. That advisory, however, was not introduced trial not part record. We will not consider new evidence “absent extraordinary circumstances” such circumstances present here. Int ʹ l Bus. Machines Corp. Edelstein F.2d (2d Cir. 1975) (per curiam). Furthermore, while August advisory postdates trip, it possible similar advisory on website before, would explain Thompson’s testimony about seeing advisory. Neither party presented evidence what posted on CDC website actually occurred, we will not disturb jury’s assessment evidence its finding reasonable foreseeability.
II. Public Policy
A. Duty
Hotchkiss argues on appeal imposing legal duty protect this contravenes Connecticut public policy. This argument presents closer question. However, precedent does not offer sufficient guidance whether public supports imposing Hotchkiss, parties present compelling arguments both sides. these circumstances, rather than attempting discern ourselves, we think preferable certify question Court.
As initial matter, we disagree with plaintiffs Hotchkiss waived argument raising Rule motion. 14 2410 has not waived its public policy argument because raised the argument motion for summary judgment is a question of law solely for the court. We previously stated that “where the trial court’s denial of summary judgment motion is not based sufficiency of evidence, but question of law, rationale behind Rule does not apply, need for such an objection [through Rule motion] is absent.” Rothstein v. Carriere F.3d (2d Cir. 2004). Thus we find that argument not waived.
1. The Applicable Law
Under law, foreseeability of harm alone is not determinative duties tort imposition duty care implicates questions policy. The Court stated:
A simple conclusion harm plaintiff foreseeable cannot itself mandate determination legal duty exists. Many harms quite literally foreseeable, yet pragmatic reasons, recovery is allowed. A further inquiry must be made, we recognize duty is sacrosanct itself, but is only expression sum total those considerations lead law say plaintiff entitled protection. . . . final step inquiry, then, make determination fundamental law, whether defendant ʹ s responsibility should extend such results.
Murillo Seymour Ambulance Ass ʹ n, Inc. (internal quotation marks alterations omitted).
No. 14 2410 ‐ No Connecticut case closely resembles this one, but at least two cases, Connecticut Supreme Court overturned jury verdicts by finding public policy did not support imposition a duty on tortfeasor. In Jaworski v. Kiernan , 241 Conn. 399, 409 (1997), Supreme Court overturned a jury verdict finding a recreational soccer player responsible another player’s injury based a theory negligence. The court reasoned policy favors encouraging competitive sports. reaching this conclusion, noted jurisdictions required deliberate reckless conduct, just negligence. Id. And Lodge v. Arett Sales Corp ., 246 Conn. 563, 577 (1998), Court overturned a verdict alarm company injuries incurred firefighters a brake failure they were responding false alarm. The court noted, “[w]e focus our decision, therefore, equally implications rather than strictly upon foreseeability plaintiffs’ harm.” Id. at 77; see RK Constructors, Inc. v. Fusco Corp. Conn. 381, (finding duty matter because relationship between increased insurance premiums defendant’s conduct too attenuated).
More recently, Mercier Greenwich Acad., Inc. CV (JCH), WL *5 (D. July 2013), federal judge applying law declined impose coach after player injured during basketball game. reasoned public policy weighs in favor of encouraging “vigorous participation in recreational sporting activities,” even if those activities create safety risks. Id. at *4 (quoting Jaworski Conn. at 408). Holding the coach responsible, the concluded, would chill the coach’s role of encouraging competition in sports. Id. *5.
Cases like Jaworski Mercier indicate courts place high value recreational activities children, even if they sometimes create safety concerns. Although the present case does not involve competitive sports, implicates important questions public policy because of benefits educational trips children. courts addressing public policy questions considered four factors determine whether impose in cases: “(1) normal expectations participants in activity under review; (2) public encouraging participation activity, while weighing safety participants; (3) avoidance increased litigation; (4) decisions jurisdictions.” Monk Temple George Assocs., LLC (internal quotation marks omitted). four factors do point obvious answer this both parties present colorable arguments either side.
First, expectations parties depend level generality applied describe events occurred case. Parents children participating sponsored international might ‐ expect school to warn about or protect against some of risks of trip, including potentially dangers of serious insect borne diseases. However, and several amici point out, unreasonable to expect organizer warn students about or protect them against every danger. Field trips are intended expose children situations outside their comfort zones and organizers’ control. Such trips thus naturally entail certain level risk. Here, contracting tick borne encephalitis undeniably remote. No American had ever before contracted TBE China. Thus, although travelers may generally expect protect dangers, including serious insect diseases, one expected would contract TBE.
Second, international trips and outdoor activities, while sometimes posing substantial health and safety risks, offer important benefits their participants. benefits international education and student exchanges are written into statutory law. General Statute Section 27(a) states:
It shall be state encourage students, teachers, administrators educational makers participate international studies, international exchange programs other activities advance cultural awareness promote mutual understanding respect citizens countries.
At same time, safety minors, who varying degrees under care protection schools these trips, important concern. 14 2410 cv Minors on such trips are in custody the organizations leading them, health safety children must have bearing on how these trips are conducted.
Third, this case is likely have repercussions on litigation in area child safety, especially in light substantial damages awarded these plaintiffs. If award stands, would set an important precedent for cases arising from educational trips. In fact, effects this case already manifest. Munn’s attorney recently brought another lawsuit plaintiff seeks same damage award contracting Lyme disease at YMCA camp. Horowitz v. YMCA Camp Mohawk, Inc. , ‐ (D. Conn. 2013). This case is likely encourage future victims unusual accidents educational trips seek compensation, placing heavy financial burden trip providers. On other hand, reasonable suppose such liability cause increase diligence part providers, potentially avoiding catastrophic injuries such as befell Munn. See Monk at 120.
Fourth, exactly analogous one, but courts several other jurisdictions have declined impose similar cases construed duties schools more narrowly. David City New York A.D.3d (N.Y. App. Div. 2007), found 14 2410 ‐ school did not breach a duty supervision where a child injured on a hay ride. The court noted that previous hay rides had occurred without incident that school had “no knowledge or notice that [the] hay ride would be hazardous.” Id. Mancha v. Field Museum Natural History , Ill. App. 3d 699, 702 (1972), court declined impose a duty where a child field assaulted by unaffiliated students. found “the that year old boy would be assaulted in museum is minimal” recognizing duty would impose significant burden supervision school. Id. It stated:
A teacher cannot be required watch students all times while school, grounds, or engaged in related activity. If law imposed such burdens would well discourage schools teachers from affording opportunities children enjoy many extracurricular activities. It long been recognized something other than classroom teaching needed sound education. Learning confined books.
Id. These two cases indicate efforts by jurisdictions encourage extracurricular activities limiting duties schools or protect unlikely unusual events. At same time, there instances where courts found schools owe context extracurricular activities. See, e.g. , City Cedar Falls v. Cedar Falls Cmty. Sch. Dist. N.W.2d (Iowa 2000) (school district liable resulting kindergarten student’s death golf cart accident during field trip); Travis Bohannon Wash. App. (school district owed duty of care high school students participating in off campus “Workday”).
Upon review of these four factors of Connecticut precedent in negligence cases, we are unable determine whether Connecticut public policy supports imposing duty or protect in this case. Although prior Connecticut decisions in area of recreational sports suggest public policy may favor placing limits schools’ legal duties context trips because their educational benefits, no case has yet addressed precise question no case is close facts this case.
2. Certification Because Connecticut case law does offer sufficient guidance question public cases, we think best let Supreme Court Connecticut determine whether Connecticut supports imposing legal Hotchkiss.
Our court rules law enable us certify question Court “if answer may be determinative an issue” before us “if there is controlling appellate decision, constitutional provision statute.” Gen. Stat. § 51– 199b(d); see 2d Cir. Local R. 27.2; see Caruso Siemens Bus. Commc ʹ ns Sys., Inc., F.3d (2d Cir. 2004) (certifying question where “no ever provided authoritative answer”). “Certification especially important categories cases where, unless there certification, state courts substantially deprived 14 2410 opportunity define state law.” Gutierrez v. Smith , 702 F.3d 103, 116 (2d Cir. 2012). We have “long recognized state courts should be accorded first opportunity decide significant issues of state law through certification process,” and that, especially where issues “implicate[] weighing concerns, principles comity federalism strongly support certification.” Parrot v. Guardian Life Ins. Co. Am. , F.3d (2d Cir. 2003), certified question answered (2005).
Certification is appropriate in this case at least three reasons. First, as discussed above, case law provides limited guidance this issue prior case is authoritative here. Whether owed duty care is determinative in this case. Second, scope duty negligence law is “paradigmatically state field,” typically addressed state, rather than federal, courts. Id. (internal quotation marks omitted); see Izzarelli R.J. Reynolds Tobacco Co. F.3d (2d Cir. 2013) (certifying Court where “question is one state law is vigorously argued both sides”). Third most importantly, this is likely have repercussions beyond this particular fact pattern implicates broad questions public policy.
Defining scope school’s leads international significant consequences litigation Connecticut, home many private schools. Although cost benefit analysis most cases assumes all interested parties represented case, so here. societal impact finding duty here extends far beyond Hotchkiss. To impose duty on schools or protect risks as remote as tick encephalitis might discourage field trips that serve important educational roles. See generally Philip K. Howard, Collapse Common Good (2001). If costs imposed schools non profit organizations become too high, such trips might be curtailed cease completely, depriving children valuable opportunities. Public may thus require participants bear risks unlikely injuries illnesses such one occurred so institutions can continue offer these activities.
On hand, imposing reasonable care may effect increasing litigation. If schools take steps protect students from foreseeable harms, legal actions may fact decrease. Alternatively, those actions premised absolute demand ensure student safety “as opposed failure . . . take reasonable precautions, likely will be dismissed absence negligence.” Monk 120. Balancing these factors task primarily state decisionmakers rather than federal courts.
14 2410 We conclude certification would allow to carefully consider weigh the concerns at play this case to shape its own state law as to the responsibilities of schools field trips.
B. Remittitur
This also unusual because of the large award granted to the plaintiffs. implications of the $41.5 million awarded damages also lead us certify the issue remittitur the Supreme Court Connecticut.
Because law governs the claims for relief diversity case, governs excessiveness verdict the question remittitur. See Gasperini v. Ctr. Humanities, Inc. , U.S. 415, (1996). To determine whether grant remittitur, trial court must evaluate “whether jury’s award falls somewhere within necessarily uncertain limits just damages or whether size verdict so shocks sense justice compel conclusion [was] influenced partiality, prejudice, mistake corruption.” Birgel v. Heintz, Conn. (1972). On appeal, “we limited determining whether trial abused discretion denying motion set aside verdict.” Champagne Raybestos Manhattan, Inc. (1989). Champagne Court ordered remittitur $320,000 loss consortium award wife whose husband became sick from his exposure asbestos work. Despite limited scope
No. 14 2410 appellate review in area, court concluded that award was excessive. It found that “evidence loss consortium is sparse, especially viewed time frame that suggested encompass.” Id. Similarly, Buckman v. People Express, Inc. , court concluded that $50,000 award excessive for plaintiff who suffered emotional distress because he temporarily “under impression that he had medical coverage.” 205 Conn. 166, 167 (1987). Again, found that evidence did not support award, noted that “the jury . . . not reasonably have found plaintiff entitled recover $50,000.” Id. at 176. These two cases indicate appellate courts can overturn jury awards or order remittitur where evidence does support size scope jury’s damages award. several other cases, however, courts upheld large awards for disastrous injuries. See, e.g. , Mather v. Griffin Hosp. , Conn. ($9 million—roughly $18 million adjusted for inflation—for medical malpractice infant’s delivery resulted cerebral palsy); Pelletier v. Sordoni/Skanska Constr. Co. , X06CV950155184S, WL *3 (Conn. Super. Ct. Mar. 2006) ($22.7 million award injury severed plaintiff’s spinal cord), rev’d grounds Conn. (2008); see Pouliot Paul Arpin Van Lines, Inc. F.R.D. (D. 2006) ($20 million non economic damages permanent impairment 92% plaintiff’s body, causing plaintiff mental anguish depression). ‐ ‐
Here, the record makes difficult to determine how the damages relate to the evidence at trial. has suffered serious permanent injuries alter her everyday life. The parties do not debate the disease limited Munn’s ability express herself control her facial expressions. However, the attorneys gave guidance on non ‐ economic damages in their summations. While plaintiffs’ attorney offered detailed calculation economic damages, he spoke only in generalities about non economic damages, emphasizing Munn’s injuries her loss enjoyment. Hotchkiss’s attorney did discuss non ‐ economic damages all she spoke jury. The evidence at trial attorney summations thus offer little basis which explain how chose award $31.5 million in non economic damages. Although non economic damages are always abstract—pain suffering are difficult quantify—this problem particularly salient in this case because size non economic damages, are more than three times economic damages, lack discussion record non economic damages.
Moreover, large damages awarded intertwined with broader issues relating educational trips discussed previous section. The enormous award magnifies effects lawsuit organizations offering educational trips. $41.5 million damages might have chilling effect educational trips. Indeed, such awards existential consequences schools organizations hosting these trips. Although insurance may cover portion damages such lawsuits, awards this magnitude might lead significantly increased premiums. The damages might discourage schools other organizations from offering such trips fear they will suffer crippling lawsuit.
Because damages are inextricably linked broader public policy issues this case, we deem it prudent certify issue remittitur Connecticut Supreme Court. Connecticut Supreme Court has never considered excessiveness award this magnitude, nor it provided specific criteria evaluating these awards. And damages cases “paradigmatically state field.” Finally, size this award makes likely it will repercussions far beyond this affect whole industry educational trips. For these reasons, we leave Supreme Court Connecticut determine whether how remittitur might help shape state public policy educational trips.
CONCLUSION
We address only question remittitur, we do reach issues raised appeal because Supreme Court’s answers public questions be determinative.
For reasons stated above, we certify two questions law Court: Does support imposing protect serious insect disease it organizes abroad? If so, does award approximately $41.5 million favor plaintiffs, $31.5 million non economic damages, warrant remittitur? Supreme Court may modify these two questions as sees fit and, should it choose, may direct parties address
questions deems relevant. This panel retains jurisdiction over this will decide any remaining issues once Supreme Court ruled.
It therefore ORDERED Clerk this court transmit Clerk Court Certificate, set forth below, together with this decision complete set briefs, appendices, record filed parties.
[1] raises several arguments its appeal that we do reach here because questions we certify be outcome determinative. asserts charge was misleading, that district court abused discretion excluding Fluharty’s testimony while same time admitting testimony plaintiffs’ experts, there insufficient evidence bitten Mt. Pan, district erred excluding release claims.
[2] Notably, while encouraging international exchange programs, legislature not, least one state has, enacted statutory immunity trips. See Cal. Educ. Code § 35330(d).
[3] For more discussion excessive tort liability might deter socially beneficial activities, see Steven Shavell, Foundations Economic Analysis Law (2004).