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Supreme Court Ends Circuit Split with Ruling That Plaintiffs Can Seek RICO Damages for Certain Personal Injury Claims
Resolving a deep split among federal circuit courts, the U.S. Supreme Court has broadened plaintiffs’ ability to sue under the Racketeer Influenced and Corrupt Organizations Act (RICO) for economic loss stemming from personal injury. The decision stands to permit plaintiffs to bring federal claims — particularly against generic drug and medical device manufacturers — utilizing an avenue many courts previously believed was foreclosed.
In a 5-4 ruling, Justice Amy Coney Barrett wrote for the court in Medical Marijuana, Inc. v. Horn that RICO’s Section 1964(c), while “implicitly denying” plaintiffs from suing to recover for personal injuries, permits plaintiffs to recover for “business and property loss that derives from a personal injury.” (emphasis added).
Barrett wrote on behalf of Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, and Ketanji Brown Jackson. Justice Brett Kavanaugh was joined in dissent by Chief Justice John Roberts and Justice Samual Alito. Justice Clarence Thomas, who also dissented, wrote separately.
The case centered on a truck driver, Douglas Horn, who had injured his back and shoulder. When traditional therapies were unsuccessful in alleviating Horn’s chronic pain, he resorted to a CBD product sold by Medical Marijuana, Inc. Concerned about any positive drug test that might cost him his job, Horn was attracted to the company’s product, which Medical Marijuana, Inc. described as “0% THC” and “legal to consume both here in the U.S. and in many countries abroad.” A customer service representative reinforced the company’s statements. When Horn later tested positive for THC and was fired, he sued, alleging that the company was a RICO enterprise, with its “false or misleading advertising” constituting mail and wire fraud and a “pattern of racketeering activity.” See 18 U.S.C. §§1961(1), (5); 18 U.S.C. §§ 1341, 1343.
The district court had ruled for the company, reasoning that because Horn’s firing was “derivative of” a personal injury — ingesting THC — and because a plaintiff cannot sue under RICO for a personal injury, Horn was also unable to recover for business or property harm that flowed from a THC-related injury. The U.S. Court of Appeals for the Second Circuit later reversed that ruling, holding that Section 1964(c)’s use of “business” includes an individual’s employment and that nothing in the RICO statute excludes recovery for economic loss caused by personal injury.
Analyzing the statute’s text and surveying civil RICO precedent, the Supreme Court ultimately sided with the Second Circuit’s view, closing the book on what had become a 3-2 circuit split. The Sixth, Seventh, and Eleventh Circuits had interpreted Section 1964(c) to bar the sort of claims at issue. The Ninth and Second Circuits had gone the other way.
The principal dissent expressed concern that the Supreme Court’s decision will enable plaintiffs to “circumvent RICO’s categorical exclusion of personal-injury suits simply by alleging that a personal injury resulted in losses of business or property,” effectively federalizing traditional state tort suits. The dissent continued: “When enacting civil RICO in 1970, Congress did not purport to usher in such a massive change to the American tort system.”
The majority opinion left a variety of questions unanswered, including (1) whether the Second Circuit correctly interpreted “business” to include a person’s employment, (2) whether Section 1964(c)’s “injured in his . . . property” covers all economic loss, and (3) whether Horn’s THC consumption, which led to termination, actually constituted an “antecedent personal injury.” (After all, Horn argued in the lower courts that Medical Marijuana, Inc. had harmed his ability to earn a living rather than injured his body.)
More broadly, the decision stands to open a pathway for plaintiffs to bring federal claims against generic drug and medical device manufacturers where other doors have been tightly shut. The Supreme Court has already held that federal law preempts — and thus bars — state law failure-to-warn claims against generic drug manufacturers, see PLIVA, Inc. v. Mensing, 564 U.S. 604, 609 (2011), as well as design-defect claims under state law against the same, see Mut. Pharm. Co., Inc. v. Bartlett, 570 U.S. 472, 476 (2013).
Seeking the prospect of treble damages under RICO, Foley anticipates that plaintiffs will attempt to use the Court’s most recent decision to expand the scope of claims in the pharmaceutical and consumer product manufacturing space, where federal preemption has kept most of the plaintiffs’ bar’s liability theories at bay. Foley will continue to monitor the state of affairs and provide updated guidance accordingly.
The Developing Role of Computer Forensics in Personal Injury Claims
The landscape of personal injury claims is evolving, with technology playing a significant role in shaping the outcomes of these cases. As more interactions and evidence move online, computer forensics is becoming essential for uncovering digital evidence that can substantiate or challenge claims in personal injury lawsuits. This development not only assists attorneys in building stronger […]
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Statutes of Repose: Protecting the Pantheon’s Builders After Nearly 2,000 Years
Even though construction cases often involve colorful facts, legal opinions are often quite boring. When a judge writes a colorful opinion about an otherwise boring case, we tip our hat. This week we tip our hat to Judge Brandon Harrison and colleagues on the Arkansas Court of Appeals for their opinion in Thompson Thrift Construction v. Modus Studio et al., 2025 Ark. App. 193 (2025), a construction defect case arising out of a student housing project in Fayetteville. The issue was whether the Arkansas statute of repose – which cuts off a builder’s liability for defects after a certain number of years have passed following substantial completion – defeated the plaintiff’s claim.
Here is how Judge Harrison’s opinion introduced this otherwise boring issue of statutory interpretation:
The Pantheon in Rome has stood for more than 1,900 years. If it collapsed tomorrow, the claim-accrual and statute-of-limitations principles that apply in Arkansas to ordinary negligence claims would give an injured person three additional years to sue those who were alleged to have negligently designed or constructed it. That’s a long time to stay on the legal hook. So in the 1960s, like legislatures in a number of other states, the Arkansas General Assembly changed the accrual and limitations principles that apply to tort or contract claims for damages “caused by any deficiency in the design, planning, supervision, or observation of construction or the construction and repairing of any improvement to real property” against a person “performing or furnishing the design, planning, supervision, or observation of construction or the construction and repair of the improvement.” Ark. Code Ann. § 16-56-112. With a few express exceptions, for those architectural or construction-type claims “no action … shall be brought” more than five years from the date of substantial completion of the improvement, even if the limitation period for that kind of claim has not run—and even if no claim exists yet because no damage or injury has yet occurred.
As the above-quoted passage indicates, other states passed similar statutes of repose around the same time. Today, 48 states and the District of Columbia have one. The wording of those statutes varies from state to state. For example, in many states the period of repose begins to run upon substantial completion. In others, the period begins with final completion or the acts or omissions at issue. Many states allow an extension if the injury occurs in the final year of the repose period, while others do not. Some states apply different periods depending on the nature of the injury (property damages v. personal injury) or the identity of the plaintiff (private v. government). All are subject to change at any time at whim of the state legislature. None should be confused with statutes of limitation, which have a similar effect but generally begin to run only when the injury or damage occurs (which in the Pantheon example may not occur for some 1,900 years after construction).
The only two states without a statute of repose are New York and Vermont. Potential claimants against the contractors and architects of ancient Rome would do well to start there. Just know that Judge Harrison and his colleagues on the Arkansas Court of Appeals “would take the defense side of that case” (Thompson, 2025 Ark. App. 193 n. 1).
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Second Department Affirms Right to Multiple IMEs: A Strategic Win for Product Liability Defendants
When a plaintiff alleges complex and overlapping injuries, such as traumatic brain injury (TBI), psychological trauma, or cognitive impairment, defendants must have access to the right tools to fairly evaluate and defend against the claim. In a recent decision, the Appellate Division, Second Department affirmed a critical procedural right for defendants: the ability to compel multiple independent medical examinations (IMEs) when justified by the nature of the injuries at issue.
In Mazzola v. Claridge’s Co., LLC, 2025 NY Slip Op 01918, the court reversed the lower court’s denial of a defense motion to compel an additional IME by a neuropsychologist, following an earlier IME conducted by a specialist in neurology and psychiatry. The plaintiff alleged significant psychological and cognitive injuries. The court emphasized that CPLR 3121(a) does not limit the number of IMEs a defendant may obtain and that additional examinations are appropriate when supported by necessity:
“There is no restriction in CPLR 3121(a) limiting the number of medical examinations. However, a defendant seeking an additional medical examination must demonstrate the necessity for it” (Mazzola, citing Abdelfattah v Treviacano, 204 AD3d 738).
“[T]he defendants sufficiently demonstrated the necessity for an additional IME by a specialist in neuropsychology in light of the plaintiff’s allegations as to the severity of his psychological injuries and since the prior IME was not conducted by a specialist in neuropsychology.”
This decision offers much-needed appellate support to defendants in cases involving multidimensional injury allegations. In today’s product liability landscape, where claims often combine orthopedic, neurological, psychiatric, and cognitive symptoms, this ruling validates a common-sense approach mirroring the growing complexity and specialization of physicians (and attorneys): different injuries call for different specialists.
Why This Matters for Product Liability Defendants
Claims Evaluation with Clinical PrecisionProduct liability defendants and insurers are frequently faced with TBI claims that span a range of diagnoses and disciplines. A psychiatrist is not a neuropsychologist, and the two bring vastly different methodologies to evaluating cognitive function. The Mazzola decision acknowledges this and ensures the defense is not handcuffed by a rigid, one-and-done IME limitation.
Strategic Use of Litigation ResourcesThough multiple IMEs require upfront coordination, they often lead to more cost-effective litigation by clarifying injury scope early, narrowing issues for summary judgment, or positioning a case more favorably for settlement. Investing in the right expert at the right time can significantly reduce long-term litigation spend.
Procedural Authority to Push Back Against RestrictionsPlaintiffs’ counsel often object to multiple IMEs on grounds of burden or duplication. Mazzola gives defense counsel the appellate authority to counter these objections, so long as the additional examination is narrowly tailored and necessary to address specific allegations.
ConclusionDefendants are not limited to a single IME when a plaintiff’s injury claims involve multiple, medically distinct allegations. Where a plaintiff alleges cognitive injury, psychiatric trauma, and neurological dysfunction, the defense is entitled to a thorough, specialized evaluation from each relevant discipline.
At Wilson Elser, we know how to leverage case law such as Mazzola to secure critical examinations and build a defense that withstands scrutiny. If your organization is facing a product liability claim involving complex or catastrophic injuries, contact our team to learn how we can help you develop a smart, calculated defense strategy that protects your interests and controls litigation costs.
Read the full Mazzola decision here.
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