The Curious Case of Disney's Mandatory Arbitration Provision in Wrongful Death Lawsuit - Ep. 56
Download MP3Welcome to litigation nation. I'm your host, Danessa Watkins, along with my co host, Jack Sanker. As a reminder, on this show, we discuss interesting legal topics and court opinions from across the country. And despite our own crazy litigation schedules, Jack and I commit to presenting new content every other week. So please subscribe to, like, share our Litigation Nation episodes wherever you get your podcasts, Apple, Spotify, YouTube, etcetera.
Danessa Watkins:So what do we have teed up for today, Jack?
Jack Sanker:Disney is testing the limits of their mandatory arbitration provisions in their terms of service. They argue that in a wrongful death case which arises out of one of their parks should be thrown out because the decedent agreed to a mandatory arbitration when she signed up for the streaming service, Disney plus.
Danessa Watkins:Interesting. Alright. I'm going to cover a twist in the rape and sex trafficking case filed by a former WWE employee against ex CEO Vince McMahon. The plaintiff slash alleged victim is now being threatened with a defamation lawsuit by the physician who McMahon allegedly sent her to for undisclosed treatment. All that and more, here's what you need to know.
Jack Sanker:So the Disney story, it's I'll start with you know, it's a tragic story. It's a wrongful death case, so it's never going to be exactly, you know, funny, of course. But this is a really quirky story involving stretching, I think, the logic, and some of the baseline elements of kind of basic contract law, which we'll see here. So backing up to what actually happened in 2023, a doctor from New York, his name was, Amy Tangshan. Sorry if I have, her name wrong.
Jack Sanker:I did look up how to pronounce it, but I still probably butchered it. Her and her husband visited Disney World in Orlando. They went to an Irish themed restaurant there, which, as I understand, was independently owned and operated, but I think did have some type of relationship. May I don't know if it's like a licensing thing or whatever with the Disney World Resort. According to the complaint filed by her widow or husband, they both informed the staff repeatedly about her, nut and dairy allergies before ordering.
Jack Sanker:She ordered a vegan fritter, scallops, onion rings, and vegan shepherd's pie. Afterwards, she began suffering a severe allergic reaction. She had difficulty breathing. She collapsed. She wasn't she was able to self administer, an EpiPen, but, nonetheless, she died.
Jack Sanker:So her husband, sued the restaurant, which, like I said, I I believe is independently owned and operated, and also Disney Parks for wrongful death. On its website, Disney does warn that they, do not have separate allergy free kitchens, and they cannot guarantee a menu item is completely free of allergens, for their for the different restaurants that are part of the resort. So, you know, I think they have some type of liability defense that's gonna come out of that. Nevertheless, the complaint alleges that the folks at the restaurant were put on notice multiple times of her allergies and and had basically said, don't worry. This is fine.
Jack Sanker:Something along those lines. So liability, ultimately, you know, who knows? But here's the interesting part, and this is why we're gonna cover it today, is that Disney filed a motion to dismiss the lawsuit arguing that pursuant to its terms of use agreement, which the decedent and her husband were a party to, all disputes with Disney must be handled through mandatory arbitration, which is not all that uncommon except, when did the claimants here agree to this? And according to Disney, it's when they signed up for Disney Plus, which is a streaming platform, that contained the terms of service service agreement and the mandatory arbitration provision.
Danessa Watkins:Stop it.
Jack Sanker:Yes. So, there's more to it than that, but this is in the motion to dismiss. They Disney is saying, no. No. No.
Jack Sanker:When you subscribe to Disney Plus, you agreed that any and all disputes between us will be resolved via mandatory arbitration, including, I guess, you know, the, any, incidents where you come to Disney World and choke to death. Or or
Danessa Watkins:Alright. Well, because aren't usually arbitration clauses, they're within the the four corners of that contract. So you would think, like, the contract is for Disney plus services.
Jack Sanker:Yeah.
Danessa Watkins:So any claims arising from Disney plus services, you have to go to arbitration.
Jack Sanker:So I'll I'll read the I'll read part of it to you. This is the Disney plus from Disney plus, TOS here. Disney LLC and or its affiliates or subsidiaries, collectively Disney, are pleased to provide you certain websites, software, applications, content, products, and services in any media format or channel, now known or here and after devised, blah blah blah, which may be branded Disney, ABC, ESPN, Marvel, Pixar, Lucasfilm, FX, Searchlight Pictures, 20th Century Studios, National Geographic, or another brand owned or licensed by Disney. References to Disney products are also included in any any elements of Disney products. Any disputes between you and us, except disputes resolved in small claims or relating to the ownership or enforcement of intellectual property rights, of course, are subject to a class action waiver and must be resolved by individual binding arbitration, and then it directs you to the, the longer provision in the agreement in section 8.
Jack Sanker:You can look this up on the Disney website if you wanna take a look at it. But it's, yes. Any any dispute at all except those which were falling to a small claims court or they have to deal with intellectual property, according to this, for, for anything you could think of, really, is going to be subject to the mandatory arbitration agreement. And that's, yeah, that's one of the bases for the motion to dismiss. Now it's worth noting that there is another TOS here, one that, the widow or husband would have agreed to when he purchased the tickets to Disney World, and that's, like, to me, makes a little more sense, you know, to say, hey.
Jack Sanker:You're coming to, like, a theme park. Part of that is we're gonna settle disputes via mandatory arbitration. You have to check here or whatever. Yeah. And, like, setting aside kind of, like, whatever opinions you have on mandatory provisions in the first place, especially when they're, like, rolled into, what do they call this?
Jack Sanker:Click click wrap?
Danessa Watkins:Yeah.
Jack Sanker:Yeah. Like this where it's just a, you know, check this box to move on type thing, and no one in the world has ever read these.
Danessa Watkins:Mhmm.
Jack Sanker:So that to me seems a little less stretched, but, the but the Disney plus one is real. I mean, that's that's that's one of the arguments that they're making.
Danessa Watkins:I can't believe they're making that argument. Yeah. There's no way that I mean, because if anything, they're creating bad law for themselves, I would think.
Jack Sanker:Oh my goodness. I mean, so here's what Disney says in its filing. It says that the, husband agreed to these terms when he signed up for 1 month free trial of its streaming. Come on. This is, Disney plus in 2019.
Jack Sanker:By the way, this accident happened in 2022. Wow. I'm sorry. 2023. So it's they agreed to it 4 4 years prior to, the unfortunate death, that occurred here.
Jack Sanker:Disney ads that the whatever husband accepted the terms again when he used when he used his Disney account to buy the tickets from the theme park. And I actually wasn't quite sure about that, and I I went to pull the the motion. I couldn't do it because I would I would guess, so much traffic to, like, this local court website that I was trying to get on that it had crashed repeatedly, so I I could not pull the motion. I'm sorry. I did wanna read it, but, you know, I wasn't able to.
Jack Sanker:But in any event, that's what a number of outlets that have that have read in our reporting. That looks like that looks right to me. And, so yeah. I mean, it's it's this Disney account is where this this TOS kind of lives. And, when they when they use it to do anything, apparently, they are ascending to this mandatory agreement.
Danessa Watkins:And they list all those other companies, which obviously are under, Disney's umbrella. But so just thinking about this. So that could signing up for Disney Plus, having this agreement means you could go to a ESPN zone, get injured there, and they could hold you under this.
Jack Sanker:Marvel, Pixar, Lucasfilm, Disney, ABC, FX, Searchlight Pictures, 20th Century Studios, National Geographic, or any other brand owned or licensed by Disney. So which, like, as always a reminder of, like, how much of the entertainment sphere Disney owns. I always forget. You know? Mhmm.
Jack Sanker:But it's, you know, it's like everything. Mhmm. So, yeah, they're asserting that they are that, effectively, if you, like, participate in any media at all in in in 2024, the year of our lord, that you are subject to mandatory arbitration. I mean, I'm not licensed in Florida. I haven't dug in here, much beyond this.
Jack Sanker:The use of these mandatory binding arbitration agreements has long been criticized as a way that big corporations can effectively snuff out claimants, the rights to a jury trial at least, by slipping into the lengthy, click wrap TOS like this, which, as I mentioned, no one really reads. And, you know, I on one hand, I kind of understand, like, if you're buying tickets to a theme park and then you agree to the kind of standard, like, hold harmless, you know, waivers of liability and then etcetera, whether or not you agree with that, that's not outlandish. But, relying on the Disney plus thing is just bizarre. And if and if, like, I'm I don't know which firm filed this. I'm sure they're they know what they're doing and they're, you know, just being zealous advocates, but I wonder if there's, like, some PR guy at at Disney that's like, hold on.
Jack Sanker:Our lawyers filed what? Yeah. No. Seriously. Like, hang on a sec.
Jack Sanker:You know, it's I mean
Danessa Watkins:I mean, as a litigator, you always have a million arguments you can make. Well, not always, but if you're lucky. But you never throw spaghetti against the wall. Like, you pick your best and go with it.
Jack Sanker:Especially if, like, it's it's going to, like and it was all over, like, kind of the places I go to look for headlines, you know, to to to read and figure out what we're gonna cover. This was all of everything because it's, like, such an absurd thing that if true I mean, the amount of TOS that you click through in a given day for the apps that you're using, the software that you're using on your computer, and, like, just a million other things. I mean, I don't know. It it this just can't be the case that this is how it's gonna be enforced, one way or the other. So we will see, to what extent the motion is granted or denied.
Jack Sanker:I'll be very interested to see what happens, but, this is also one of those things where, like, Disney recently I mean, for, like, a 100 years has been, like, America's entertainment company in, like, past, like, couple years. Just keeps just stepping in it, like, politically or, like, legally. I mean, there was the whole dispute around the land, rights that Disney had in Florida, which we we covered in a previous episode. It was, kind of a, a deeply personal feud between Disney and governor Ron DeSantis. And this just seems like one of those things where, like, hey.
Jack Sanker:No one likes mandatory provisions already, and this is just gonna draw a lot of negative attention to that as a a body of law, and it's, you know, gonna hurt Disney maybe in the long run.
Danessa Watkins:Oh, for sure.
Jack Sanker:Yeah.
Danessa Watkins:Definitely. And what court was this in? This was in state court in Florida?
Jack Sanker:Yes. It was. I don't I don't recall which county. Like I said, I was trying to get into it, and then, you know, the website kept crashing probably because all the nosy attorneys like me wanted to sniff around this filing and and and see if we could see if I could copy it for my clients.
Danessa Watkins:Yeah. Right. I just hope that they, that the judge actually writes an opinion on it because, you know, it's an issue of law. Yeah. So, they certainly can make an opinion on it.
Danessa Watkins:And,
Jack Sanker:And you you would it stretches some of the baseline elements, like, in the idea of, like, mutually, informed consent, meeting of the minds, if you will Mhmm. That kind of underlies, like, baseline con baseline contract concepts
Danessa Watkins:Mhmm.
Jack Sanker:As well as, you know, limited in scope and foreseeability and just the applicability here of signing up for Disney plus and then realizing that you've waived your rights to a wrongful death lawsuit.
Danessa Watkins:Well, even if
Jack Sanker:does not follow the other. You know? Right.
Danessa Watkins:And even if it happened in the same year
Jack Sanker:Yeah.
Danessa Watkins:I still think it would be too much. And then the facts in this case are just so much more egregious that it happened, what, 4 years apart, and it was a free trial. It's not like he continued his membership.
Jack Sanker:Yeah. It's so
Danessa Watkins:It's that's wild.
Jack Sanker:Little greedy by Disney. I'll put
Danessa Watkins:that away. That's not a good look.
Jack Sanker:Yeah. Well, we'll we'll I I'll be interested to see. I hope I think we'll probably get a ruling in the next couple of months. And if keep this on my radar, and I'll I'll let the audience know what the ruling actually is.
Danessa Watkins:Alright. Onto wrestling. So on January 25th this year, 2024, Janelle Grant, who was a former employee of World Wrestling Entertainment or WWE, she filed a complaint in Connecticut federal court against WWE, its founder, and ex CEO, Vince McMahon, and then another former executive, alleging that McMahon pressured her into having sex with him and other WWE employees in exchange for her job. Once employed, McMahon allegedly also shared explicit photos of Grant with other employees and wrestlers and, quote, re recruited individuals to have sexual relations with miss Grant, unquote, including other WWE employees. As alleged, McMahon pressured Grant to sign a nondisclosure agreement after he told her that his wife had found out about their relationship.
Danessa Watkins:So part of the the federal complaint is there there are accounts where she's asking that that NDA, be deemed nonenforceable. Yeah. Essentially. Now in 2022, McMahon stepped down from his position as CEO while the WWE was investigating allegations of his misconduct. And at that time, the crux of the claims were that he had paid hush money to employees that he had affairs with, to the tune of as much as potentially $12,000,000.
Danessa Watkins:Now the complaint that Grant filed is 67 pages long, and it goes into substantial detail about the alleged abuse that she suffered, including violations of the Victims of Trafficking and Violence Protection Act, battery, and intentional infliction of emotional distress or IIED. So to support her federal lawsuit, Grant sought discovery from doctor Carlin Kolker and his peak wellness clinic, alleging that she was sent there at McMahon's direction in November of 2019. Grant claimed that she received treatments that were not disclosed to her, including being given pills and IV infusions. She alleges that the unmarked drugs made her feel sick, and she was not allowed to access her medical records. Allegedly, McMahon and WWE paid around $51,000 to Kolkar and Peak Wellness for these visits.
Danessa Watkins:So Grant believes that her medical records from doctor Kolkar could potentially support a RICO claim. And, according to her attorney, in response to what I assume was just a standard medical records request, if not a formal subpoena, doctor Kolkar produced incomplete records refusing to provide legally required information, such as the purpose of her treatments and the actual names of the drugs that she was prescribed. So given the incompleteness of that production, Grant filed a discovery petition for records in Connecticut state court directly against doctor Kolkar and his clinic demanding that they produce the missing medical information. Shockingly, doctor Kolker and his clinic responded by filing a verified complaint for discovery against miss Grant alleging that her petition for discovery of her medical records was was a smear campaign related to her lawsuit against McMahon and the WWE. Oh.
Danessa Watkins:Yeah. What? I know. Like,
Jack Sanker:who does that? It's still while not providing those records.
Danessa Watkins:Well yeah. Exactly.
Jack Sanker:That's such an insane position to take.
Danessa Watkins:I know. Okay. So Kolger and Peak Wellness's complaint said they could sue Grant for defamation, torch interference with business relations, and negligent and intentional infliction of emotional distress, claiming that her public accusations essentially say that doctor Kolker, engaged in medical malpractice and falsification of medical records. The complaint by Kolkar and Peak Wellness, says that Kolkar, quote, is a well respected physician and has a long professional relationship with many well known celebrities and athletes, including Shaquille O'Neal, Andre Agassi, Justin Bieber, and numerous other notables. End quote.
Danessa Watkins:Celebrity doctor. Right.
Jack Sanker:And those guys never get in trouble.
Danessa Watkins:I was just gonna say why after Nassar, like, why would you ever try to make that argument? The the complaint also says Kolkar is a clinical researcher with a variety of scientific publications to his credit, and he has written numerous well known health and fitness books. So, what Kolker is seeking from Grant are copies of any communications about him and his clinic that she may have had with news outlets, licensing authorities, and other third parties. So, essentially, any materials that would support a defamation claim against her, and they're also trying to get her to sit for a deposition. So, like, super aggressive.
Danessa Watkins:Yeah. An attorney for Grant, Anne e Callas of Holland Law Firm LLC, told Law 360 in a statement that the federal court, quote, sided with Janelle, that's Janelle Grant, and against McMahon in confirming that she was well within her right to seek her own medical records and data from doctor Kolkar of peak wellness. So what they did was file a motion to strike Kolkar's complaint for discovery. And her attorney says, quote, doctor Kolkar and Peak Wellness hope to intimidate miss Grant into dropping her own preaction discovery petition against them in which she seeks her own medical records and related documentation. The Kolker bill of discovery fails to plead probable cause for any of the purported claims he proposes to investigate, end quote.
Danessa Watkins:According to Grant, then her petition for discovery from Kolkar, only points to statements in court filings that would be protected by the litigation privilege, as well as statements in media reports, which would be protected by the fair report privilege. So that isn't a basis for defamation, essentially. In Grant's motion to strike, they say, quote, moreover, plaintiff's purported claims constitute an illegal attempt to chill miss Grant from speaking out about her treatment at the practice and must be dismissed under Connecticut's anti SLAPP statute as an impermissible infringement in her exercise of free speech related to a matter of public health and concern, end quote.
Jack Sanker:Yeah. I mean, it's just bonkers to me because I think both at the federal end, at least as far as under state level, you, like, pretty much have an always have a right to your own medical records.
Danessa Watkins:Yeah. Absolutely.
Jack Sanker:Right? Like, I I don't have, like, a citation to throw at the audience on that, but, like, that's just one of those things where I'm like, as a patient, you can go ask for your medical records and expect to get them.
Danessa Watkins:Yeah.
Jack Sanker:And this guy is just like, no. You can't have them?
Danessa Watkins:Yeah. He or he produced some, but not the things that she actually needed, which is, like, what what was even the purpose of my treatment to begin with? And
Jack Sanker:What was is there any allegations about in the complaint about what the purpose was? Like so as I understand it from your telling, Vince McMahon allegedly sent her to see this doctor to get mystery infusions and injections and whatnot. We don't know what those things were.
Danessa Watkins:Correct.
Jack Sanker:That's weird.
Danessa Watkins:Yeah. And I I guess now this doctor is, you know, trying to say, oh, well, I'm, you know, this big important guy, and I've done all this research, and I'm legit. And so my, I guess, medical treatment shouldn't be questioned. I don't know. It's
Jack Sanker:Well, wouldn't be if you would give the records.
Danessa Watkins:Right. Exactly.
Jack Sanker:I mean making it sound way worse.
Danessa Watkins:It's so suspicious. I just I've never heard of a medical provider not releasing records to the their their own client. I mean, they're your yeah. They're your records. You have the right them.
Jack Sanker:That's so strange.
Danessa Watkins:So I was a little bit curious as to why so usually when you issue I mean, I don't you don't even need to do a subpoena. Like, any patient can just contact the hospital, fill out a form, and get their records. But let's just say that, you know, they went the subpoena route or whatever they did to try and get the records. So I was curious as to why they wouldn't have brought, like, a motion to compel or a motion for rule to show cause in the federal lawsuit. I guess at the time that those incomplete or shortly after those incomplete records were produced by doctor Kolkar, the federal lawsuit, the court entered a stay, I guess, because a federal prosecutor for the Southern District of New York entered an appearance in the federal case and filed sealed documents on the court docket.
Danessa Watkins:So perhaps there's a criminal investigation going on simultaneously? I mean, that only makes sense there. So, essentially, discovery was stayed at the federal level. But I think, you know, understandably, probably the grant team was concerned that these records would disappear.
Jack Sanker:So Or I mean, it's also one of those things where, like, did they even exist in the first place?
Danessa Watkins:Sure. Right.
Jack Sanker:Whole, like, mystery infusion injection thing Mhmm. Is one of those things that that he was paid cash for. Right?
Danessa Watkins:Because there I mean, there's gotta be some sort of a trail because they're saying that there's at least 51,000 Right. That was paid.
Jack Sanker:But it was paid by either w
Danessa Watkins:w e or McMahon.
Jack Sanker:McMahon. Yeah. So, like, whatever those things are, there may not be medical record. Like, that
Danessa Watkins:this True. You know
Jack Sanker:what I mean? Like, it their name may and especially, like, for whatever they are. This is so strange.
Danessa Watkins:It's really strange. Yeah. And, I mean, I have to say that I tend to agree with Grant's attorneys that what doctor Kolkar is doing is really a slap.
Jack Sanker:Yeah. It's a slap suit
Danessa Watkins:for sure. Yeah. Which we've covered in past shows.
Jack Sanker:Do we wanna tell the audience what a a slap suit is?
Danessa Watkins:Yeah. So it's s l a p p, and it stands for strategic lawsuits against public participation. So I believe at this point, 48 states now have anti SLAPP laws. We don't have it at the federal level, unfortunately, but, they're intended to prevent people from using courts or potential threats of a lawsuit to intimidate people who are freely exercising their first amendment rights. So we see this most frequently with defamation where somebody will file a meritless lawsuit against another person for something that they said, and they'll include a prayer for relief that's just obscene, like, $200,000,000.
Danessa Watkins:And the whole purpose is just to silence that person from continuing to engage in whatever speech they were doing. But these SLAPP lawsuits, they can also send a message to others. You know, be quiet or you'll be sued next. So
Jack Sanker:State by state and not all states have 1.
Danessa Watkins:Yeah. Now the majority do, but they are all wildly different. Right. So, like, Illinois, unfortunately, is somewhat limited to, like, you have to be taking some sort of government action.
Jack Sanker:Yeah. I know. Like, Arizona is like that as well and a couple others. So which which means
Danessa Watkins:Florida is actually one of the best ones.
Jack Sanker:Oh, okay.
Danessa Watkins:Yeah. They there's a lot of protection there.
Jack Sanker:What it means then then is without an a strong anti SLAPP suit, that means you actually do have to contend with the allegations in the frivolous lawsuit, and deal with dismissing it that way, which is, like, you know, difficult to do, obviously.
Danessa Watkins:Yeah. Yeah. But just I mean, as they were kind of outlining the all of the alleged defamatory speech that Grant engaged in, even if it's found to be defamatory, is subject to a privilege. I mean, litigation privilege is, you know, strong. Yeah.
Danessa Watkins:The fair or poor privilege. So I think that's the the basis of their their motion to strike that complaint by doctor Kolkar. And I don't know. I mean, courts in my experience don't always do the right thing when it comes to anti slap.
Jack Sanker:There's free speech concerns and
Danessa Watkins:Yeah. For sure. But it's frustrating because then why do we even have these statutes to begin with? But, I don't know. This one seems pretty clear, especially where she's seeking her own records.
Danessa Watkins:You know? She's not seeking the records of somebody else. So, yeah, I don't know. It's interesting where this this whole case has a lot of layers to it, and, I think it's probably making WWE and its new owner TKO Group Holdings probably nervous about the future here.
Jack Sanker:Yeah. None of this strikes me as, I don't know. This I mean, like, speculation, conjecture, whatever, but, like, the stories of, like, WWE and, like, in its heyday and and kind of folks that, like, went in and out of there, pretty wild stuff going on.
Danessa Watkins:Mhmm.
Jack Sanker:This kind of, like, sex for work arrangement, which has not been proven, but has been alleged.
Danessa Watkins:Right.
Jack Sanker:Does seem to fit that bill of other stories that have been told about, you know, this organization, etcetera.
Danessa Watkins:Mhmm.
Jack Sanker:Yeah. And then, right, to have a a celebrity doctor going, no. No. No. I I help out celebs all the time.
Jack Sanker:You can totally it's, like Yeah. Biggest red flag you can have.
Danessa Watkins:Hang on.
Jack Sanker:Yeah. So
Danessa Watkins:we'll see what happens there. Potentially, there's gonna be criminal charges coming out at some point
Jack Sanker:from the
Danessa Watkins:looks of it. So
Jack Sanker:Yeah. This in the Southern District of New York.
Danessa Watkins:Well and and crazy for doctor Kolkers' attorneys to not realize that and wait to paint a target on your back.
Jack Sanker:What are you doing? I know.
Danessa Watkins:What's up with attorneys this show?
Jack Sanker:I don't know.
Danessa Watkins:I think they're making some questionable choices in their motions they're filing.
Jack Sanker:Listen. I want I want the listeners to know that Danessa and I have never made mistakes
Danessa Watkins:in that Always sound judgment.
Jack Sanker:And our our clients have no complaints. But, to my knowledge, I have not, teed up any one of my complaints for a federal indictment yet. So, so at least I got that.
Danessa Watkins:Yeah. Got that going for you.
Jack Sanker:There you go.
Danessa Watkins:Goals. Yeah.
Jack Sanker:Alright. Thanks everyone for listening. As a reminder, we put out a new show every other Tuesday. You could find us on Apple Podcasts, Spotify, YouTube, wherever you get your shows, and we will talk to you in 2 weeks.
