## Facts

- Kurt Eichenwald, a journalist with epilepsy, was publicly known to have the condition.
- During the 2016 presidential campaign, Eichenwald criticized Donald J. Trump and received online threats.
- A Twitter account traced to John Rivello sent Eichenwald a reply tweet containing a rapidly flashing strobe GIF with text stating: “YOU DESERVE A SEIZURE FOR YOUR POSTS.”
- Eichenwald alleged the GIF was known to trigger seizures in people with epilepsy and that viewing it caused him to suffer a seizure and related harm at his home in Texas.
- Investigators attributed the account to Rivello and found messages suggesting he intended to cause Eichenwald a seizure.
- Eichenwald sued in federal court asserting Texas-law claims for battery, assault, intentional infliction of emotional distress, and “purposeful infliction of bodily harm.”
- Rivello moved to dismiss the battery claim and the “purposeful infliction of bodily harm” claim under Rule 12(b)(6).

## Issues

1. Whether allegations that a defendant intentionally sent a seizure-inducing strobe GIF that triggered a seizure plausibly plead the “harmful or offensive contact” element of battery under Texas law without direct physical touching.
2. Whether Texas law recognizes an independent tort of “purposeful infliction of bodily harm” sufficient to state a claim.

## Decision

- The court denied the motion to dismiss the battery claim, holding the complaint plausibly alleged intentional harmful contact under Texas law through indirect physical means.
- The court granted the motion to dismiss the “purposeful infliction of bodily harm” claim, without prejudice, because Texas law had not clearly recognized it as a standalone tort.
- The assault and intentional infliction of emotional distress claims were not resolved in the ruling and remained pending.

## Legal Principles

- Under Texas law, battery requires intent to cause harmful or offensive contact and the occurrence of such contact; the contact need not be direct.
- Indirect contact can satisfy battery when the defendant intentionally sets physical forces in motion that make harmful contact with the plaintiff.
- At the pleading stage, allegations that light waves from a strobe image physically interacted with the plaintiff’s body and triggered a seizure can constitute harmful physical contact for battery.
- A federal court applying state law will not treat a proposed tort as an independent cause of action absent clear recognition by the state’s courts.

## Conclusion

The court allowed a Texas battery claim to proceed based on allegations that a defendant intentionally sent a strobe GIF that physically triggered the plaintiff’s seizure, while dismissing without prejudice a separate claim labeled “purposeful infliction of bodily harm” due to the lack of clear support for that tort under Texas law.


Eichenwald v. Rivello, 318 F. Supp. 3d 766 (D. Md. 2018)