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saturday, september 1, 2012 | Issue 38

weekly update

By KimBerly AtKins | Staff writer

WASHINGTON – The increase in class action litigation challenging the la-beling on certain food products has con-sumer litigation attorneys taking notice, and laying at least part of the blame on federal regulators.

The lawsuits, brought largely under state and federal consumer fraud laws, take aim at packaging labels on food products, beverages and supplements that make certain claims about their nutrition

or health benefits – claims a growing number of class action plaintiffs allege to be false and misleading.

Defense attorneys say that the claims are seeping in through a loophole in fed-eral regulations promulgated by the Food and Drug Administration. Though the agency regulates the labeling details of many food products, from ingredients to nutritional value, it does not define words such as “healthy” or “natural” in its rules,

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By DAn mcDonAlD | Contributing writer

The American Bar Association adopted new ethical guidelines for lawyers regard-ing online marketing and staying aware of current technology at its annual meeting this month.

The ABA House of Delegates also ap-proved a policy requiring law schools to provide detailed data online about their graduates’ employment.

Among other things, the online mar-keting guidelines explain when an attor-ney-client relationship arises from on-line communications.

Andrew Perlman, a professor who spe-cializes in legal ethics at Suffolk University Law School in Boston, said practitioners are often concerned about this issue.

“Given the rapid changes of technology, the rules of professional conduct need to evolve as well,” Perlman said.

The previous rule required a “discussion” to take place between an attorney and a potential client in order for an attorney-client relationship to be established. How-ever, that terminology did not capture the idea that Internet communications can

By correy e. stephenson | Staff writer

Rejecting a novel legal theory, a Califor-nia jury found for defendants Exxon and Ford in a suit brought by a woman who claimed she contracted mesothelioma dur-ing visits to her then-boyfriend while he worked at a service station.

Marline Petitpas alleged that she was exposed to asbestos dust from car parts, like brakes on vehicles manufactured by Ford, during visits to a station later owned by Exxon.

But even automotive mechanics who make a career of working with such prod-ucts eight hours a day, five days a week do not have an increased risk of developing mesothelioma – let alone someone who makes infrequent visits to a service sta-tion where work is performed, said James Yukevich of Yukevich Calfo & Cavana-ugh in Los Angeles, who represented Ford at trial.

“The science is very strong,” he said. The defense lacked clear alternative

causation for the plaintiff ’s disease, how-ever, which left the jury with limited op-tions for assigning blame. Given that, and the technical nature of the case, Yukevich said the defense verdict was that much more powerful.

Jayme C. Long of McKenna Long & Aldridge in Los Angeles, who represented Exxon at trial, referred questions to the company’s media relations department. Claire Hassett, a spokesperson for Exxon,

Vague FDA regs spur food labeling lawsuits

ABA adopts marketing, tech policies

Defense scores verdict in bystander mesothelioma case

page 2News Lawyers usa weekLy update | saturday, september 1, 2012

making the interpretation of those claims ripe for litigation. Also, many FDA regu-lations fail to say explicitly whether they preempt state laws, thereby limiting defen-dants’ ability to have the suits thrown out of court.

“In the end, I think the solution should be much stricter preemption standards,” said Ronald J. Levine, a partner in the Princeton, N.J. and New York offices of Herrick, Feinstein. “It’s much too costly for a company to engage in litigation over terminology where there could have been a clear, bright line articulated either in the law or by the courts. That is what, as an at-torney, concerns me.”

Members of the plaintiffs’ bar agree with defense attorneys on one front: FDA regu-lations are less than thorough. But plain-tiffs’ attorneys claim that due to the lack of strong rules and clear enforcement from the agency, consumers who are trying to make healthy food choices are left with insufficient protection from companies that make false or misleading claims about food products, and their only recourse is to bring consumer lawsuits.

“People are really health-conscious and they want to eat well. They want to eat healthy food. So they are susceptible to gimmicks,” said Robert W. Mills of the Mills Law Firm in San Rafael, Calif., where he represents class-action plaintiffs. Companies “claim that their products are fortified with things like vitamins or fiber to get people to purchase them with the notion that it is healthier.”

Action from busy FDA unlikelyNeither side expects a change in the cur-

rent climate any time soon, in part because the FDA is focused on other initiatives,

such as promulgating regulations under the recently enacted FDA Food Safety Mod-ernization Act. With most of the agency’s resources directed at that endeavor, there is little likelihood that it will take a hard look at preemption language.

That opens the door to lawsuits that some defense lawyers say are the product of crafty plaintiffs’ attorneys who target words such as “natural” or “organic.”

“Plaintiffs’ lawyers are being much smarter, and they are criticizing things on product labeling that are not clearly regu-lated by the FDA,” said Sarah L. Brew, a partner in the Minneapolis office of Faegre Baker Daniels, where she heads the firm’s food litigation and regulatory practice.

State-based consumer protection laws “are very important, and there are good reasons to have them,” said Brew. “But some of these cases are really more about lawyers looking for opportunities to make money than about protecting the public from actual fraud and deception.”

Members of the plaintiffs’ bar lay part of the blame with the FDA, but most with food product producers who they say prey upon consumers by plying them with false information.

“They fill their labels with trumped-up claims about nutrition or health in an ef-fort to distinguish them from their com-petitors,” said Joshua Boxer, who also rep-resents plaintiffs at the Mills Law Firm.

So far, defendants’ efforts to assert pre-emption defenses in court have had mixed success, and recent U.S. Supreme Court precedent on the issue of preemption has provided little guidance. In the meantime, defense attorneys say that it is difficult to advise clients on how to avoid liability when the standards vary widely from state to state and jury to jury.

“The FDA has the experience and know-how to address product labeling,” Brew said. “That is what it is charged to do. And when there are federal regulations in place, anything challenging those should be preempted.”

But even if the FDA were to step up its regulations in the area of food labeling, it would probably not completely stem this type of litigation.

“We also have to recognize that regula-tions cannot envision every conceivable la-bel,” said Levine, who co-chairs Herrick’s litigation department. “There can be argu-able ambiguities in laws which then have to be interpreted for specific cases.”

suits survive recent supreme court rulings

Ironically, these suits are on the rise at a time when bringing class action claims more generally is tougher than ever, due to recent Supreme Court decisions. But experts say that the Court’s rulings don’t stand in the way of consumer fraud label-ing suits.

In AT&T Mobility v. Concepcion, the Court ruled that arbitration agreements are enforceable even when they prohibit con-sumers from bringing class claims. In Wal-Mart v. Dukes, the Court raised the bar for the commonality requirement plaintiffs must meet to be certified as a class. And the Court is set to take an even closer look at how plaintiffs prove that commonality requirement when it takes up Comcast v. Behrend in the fall.

The cases have had a profound effect on most class action litigation.

“There has been a sea change after Con-cepcion and Dukes,” said Mills. Those deci-sions “basically made the world safe for fraud in a lot of areas [where] arbitration clauses are used.”

However, because consumers buy food products off the shelves and without first entering into binding agreements with the product makers, consumer fraud class ac-tions survive the recent rulings.

Further, “you also don’t have the com-monality problems cause by Dukes,” said Boxer. “It’s the same misrepresentations being made in the same way.”

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Vague FDA regulations spur food labeling suits

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give rise to such a relationship. Under the new guidelines, the concept of a “discus-sion” is replaced with a “consultation.”

The new rules also offer guidance on how lawyers can use pay-per-click advertising and social networking sites to market their services online without inadvertently cre-ating an attorney-client relationship.

According to the ABA, a “consultation” does not occur if a person provides infor-mation to a lawyer in response to adver-tising that merely describes the lawyer’s education, experience, areas of practice and contact information, or provides legal in-formation of general interest.

A “consultation” is likely to have oc-curred, however, if a lawyer, either in per-son or through advertising in any medium, specifically requests or invites the submis-sion of information about a potential rep-resentation without clear statements that limit the lawyer’s obligations, and a person provides information in response.

The new rules also identify when online communication constitutes “solicitation.” For example, ads generated in response to Internet searches, such as through a service like Google AdWords, are not considered solicitations under the new guidelines.

According to the rules, a lawyer may pay an online service, such as totalattor-neys.com, to generate client leads, as long

as the lead generator doesn’t recommend the lawyer or create the impression that it is making referrals without payment from the lawyer.

The new rules also clarify that an attorney has a duty to respond promptly to all client communications, not just phone calls.

Another change to the model rules states that an attorney has a duty to keep abreast of “changes in relevant technology, including the benefits and risks associated with its use.”

That rule outlines notification require-ments for when information is inadver-tently sent electronically. For instance, if opposing counsel sends an e-mail or meta-data by mistake, then the recipient of the information must notify the sender, ac-cording to the ABA.

employment data on law school sites

The ABA House of Delegates also ap-proved a policy requiring law schools to publish accurate employment data on their websites. Previously, the rules required such information to be published, but law schools would typically use an ABA offi-cial guidebook to legal education to convey the data, not their websites.

The new policy also requires a more spe-cific breakdown of the data. While previ-ously a school had to report things such as

how many graduates were employed nine months after graduation, the new rules state that employment data should in-clude employment status, type of employ-ment, whether the employment is full or part-time and whether the employment is funded by the law school or university. The information must also include the sizes of the firms where graduates are employed and whether a J.D. is necessary for the jobs graduates are landing. All of that informa-tion, according to the ABA, should appear in chart form.

The new standard meets the demand of students, graduates and potential law stu-dents for more data, said Barry Currier, the interim law education consultant for the ABA in Chicago.

Richard P. Campbell, who is president of the Massachusetts Bar Association and was recently named to an ABA task force on the future of legal education, said there has been a problem with law schools pub-lishing employment statistics that did not accurately reflect the economy or the job prospects for soon-to-be graduates.

“Certainly the reports in the press dem-onstrate a ubiquity to the problem; gener-ally, [law schools have been] fudging the data,” said Campbell.

Sanctions for violating the new standard include probation and removal from the list of ABA-approved law schools.


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said in a statement that the company is “sympathetic” to Mrs. Petitpas’ condition but that “we believe the jury rightly found that the facts in this case do not support the plaintiff ’s claims. There were at the time of the alleged exposure, and continue to be, no epidemiologic studies showing an increased risk of mesothelioma in ga-rage mechanics.”

Petitpas’ attorney, Simona Farrise of the Los Angeles-based Farrise Law Firm, did not respond to a request for comment.

From 34 defendants to twoPetitpas visited her then-boyfriend at

the Enco service station where he worked over a one and a half year period in 1966-1967. Joseph, now her husband, worked the pump, cleaned windshields and performed brake work on vehicles at the station.

After being diagnosed with mesothe-lioma, Petitpas filed suit against 34 differ-ent defendants. She argued that during her visits to the station, later owned by Exxon, she was exposed to asbestos dust from friction products – a percentage of which could be attributed to Ford products.

Joseph has not been diagnosed with the disease.

Various defendants were dismissed or settled their cases, leaving just Exxon and Ford as defendants for the three-week trial.

Both Ford and Exxon relied upon epi-demiologic studies, the “gold standard” in determining disease in the human popu-lation, Yukevich said. Twenty studies have been conducted since the 1980s to deter-mine if there is an increased risk to auto-mobile mechanics or brake mechanics of developing mesothelioma, he said.

“Those studies have found that the me-chanics have no greater risk than the gen-eral population,” Yukevich said. “There

have not been studies done of spouses or relatives who infrequently visited the workers, but what we believe is that if the workers have no greater risk then there is no greater risk to a casual visitor of devel-oping mesothelioma.”

The plaintiff ’s attorney cross-examined the defense’s expert epidemiologist about criticism of the studies, but did not present any affirmative scientific evidence of her own, Yukevich said.

The plaintiff ’s scientific evidence was “exclusively trying to undermine” the de-fense’s evidence, he said.

The plaintiff took the stand and was a “nice, likable person,” Yukevich said, bring-ing an emotional element into the trial.

She also presented the biggest challenge to the defense.

“We couldn’t clearly prove alternative causation,” Yukevich acknowledged. “That makes [our case] even more difficult be-cause there is no direct place for the jury to look to say, ‘This is where she got it.’”

Ford used testimony from an epidemi-ologist, an industrial hygienist and a pa-thologist to present an alternative theory for how Petitpas contracted the disease.

A fairly large number of women who de-velop mesothelioma – roughly 50 percent – do so for idiopathic reasons, Yukevich said, with no explanation for the cause. Ford’s

defense, therefore, was two-fold: There are a certain number of idiopathic instances of mesothelioma and Petitpas was one of these unfortunate individuals; or her dis-ease was caused by someone else’s asbes-tos, Yukevich said. Exxon’s defense took a different approach, arguing it did not have notice until the 1980s – well after the time period at issue – that automobile friction products or brake dust could increase the risk of mesothelioma, Yukevich said.

But he said that the defendants did not seek to cast blame on each other, and shared some of their expert witnesses.

Defense verdictThe 12-person jury deliberated for one

full day and a brief period the next morn-ing, Yukevich said, before reaching the de-fense verdict.

Jurors found that Petitpas was exposed to asbestos dust from Ford’s products, but that her exposure was not a substantial contributing factor to her disease. They went on to find that exposure to asbestos dust at the service station was a substantial contributing factor in her developing the disease, but that Exxon did not know or have reason to know the condition at the station created an unreasonable risk to her.

As a result, Exxon was also not liable.Talking to jurors after the verdict,

Yukevich said they indicated the plaintiff had “overextended” in trying to establish liability given the amount of time she had actually been at the service station.

Yukevich said the decision not to settle was driven by the novelty of the plain-tiff ’s theory.

When plaintiffs try to argue a “theory of liability on the outside edge of credibility and start to resolve those cases, that pro-vides some form of encouragement to file similar lawsuits,” he said.


Defense scores verdict in bystander mesothelioma caseplaintiff’s attorney: Simona farrise of the farrise Law firm in Los angeles.

Defense attorneys: James Yukevich of Yukevich Calfo & Cavanaugh in Los angeles for ford; Jayme C. Long of McKenna Long & aldridge in Los angeles for exxon.

the case: Petitpas v. Amcord; aug. 14, 2012; Los angeles County Superior Court, Calif.; Judge richard L. fruin.

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ATTORNEYSSocial Security attorney’s hours improperly capped

A federal judge could not subject an attorney’s hours to an artificial cap when awarding fees in a Social Security benefits case, the 9th Circuit has ruled in revers-ing judgment.

The plaintiff appealed in federal court from the Social Security Administration’s denial of his application for disability ben-efits. A magistrate judge overturned the agency’s decision and remanded the plain-tiff ’s claim for further consideration. For his successful appeal, the plaintiff sought reasonable fees pursuant to the Equal Ac-cess to Justice Act (EAJA).

The magistrate judge agreed that a fee award was in order, but determined that the 60.5 hours the plaintiff ’s attorney spent working on the case were excessive. Instead, the judge applied an informal rule followed by some judges in the circuit that 20-40 hours is a reasonable amount of time to spend on a typical Social Security case. Accordingly, the judge reduced the number of hours compensated by nearly one-third, to 41.1 hours, and awarded the plaintiff $7,200 for his attorney fees.

But the 9th Circuit held that “that it is improper for district courts to apply a de facto cap on the number of hours for which attorneys may be compensated un-der the EAJA in a ‘routine’ case challeng-ing the denial of Social Security benefits. Rather individualized consideration must be given to each case.”

Accordingly, the court directed that the plaintiff be awarded the full amount re-quested – $10,500.

U.S. Court of Appeals, 9th Circuit. Costa v. Commissioner, No. 11-35245. Aug. 24, 2012. Lawyers USA No. 993-3459.

BUSINESSDebt collectors can’t moot Fair Debt Act lawsuits

Debt collectors could not moot consum-er lawsuits against them merely by offer-ing the full amount of statutory damages the plaintiffs were entitled to under federal law, the 11th Circuit has ruled in revers-ing dismissal.

The decision addressed three separate lawsuits under the Fair Debt Collection

Practices Act involving different plain-tiffs and defendants. In each case, the plaintiff alleged that the defendant made numerous harassing collection calls and failed to make certain disclosures required by the Act.

In each case, the defendant sent an e-mail offering to settle the plaintiff ’s case for $1,001 – an amount exceeding by $1 the maximum statutory damages available for an individual plaintiff under the FD-CPA. The defendants also offered to pay unspecified attorney fees and costs.

The district court dismissed the cases for lack of subject matter jurisdiction after the plaintiffs rejected the settlement of-fers, concluding that the defendants’ offers mooted the plaintiffs’ claims.

But the 11th Circuit concluded that the settlement offers did not moot the claims because the defendants did not of-fer the full relief requested by the plaintiffs, which included entry of judgment against the defendants.

In concluding that a “live controversy” remained over the issue of a judgment, the court explained that a “judgment is important to [the plaintiffs] because the district court can enforce it. Instead, with

no offer of judgment accompanying [the defendants’] settlement offers, [the plain-tiffs’] were left with a mere promise to pay. If [the defendants] did not pay, [the plain-tiffs] faced the prospect of filing a breach of contract suit in state court with its at-tendant filing fees – resulting in two law-suits instead of just one.”

U.S. Court of Appeals, 11th Circuit. Zinni v. ER Solutions, Inc., No. 11-12413. Aug. 27, 2012. Lawyers USA No. 993-3462.

FDA’s cigarette warnings violate First Amendment

A new Food and Drug Administration regulation requiring tobacco companies to include graphic warnings on cigarette packages violates the First Amendment, the D.C. Circuit has ruled.

The decision affirms a judgment by a U.S. District Court. (See “FDA can’t man-date graphic cigarette warnings,” Lawyers USA, March 1, 2012. Search terms for Lawyers USA’s website: “R.J. Reynolds” and Columbia.)

In 2011, the Food and Drug Adminis-tration issued a new tobacco labeling rule. (See “FDA unveils new, graphic cigarette warnings,” Lawyers USA, June 24, 2011. Search terms for Lawyers USA’s website: cigarette and post-autopsy)

The rule requires tobacco companies to display nine new textual warnings – along with certain graphic images – on the top 50 percent of the front and back panels of every cigarette package manufactured and distributed in the U.S. on or after Sept. 22, 2012. The graphic images were intended to dissuade people from smoking and in-cluded such things as diseased lungs and a cadaver bearing chest staples on an au-topsy table.

Five tobacco companies, including R.J. Reynolds, Lorillard and Liggett Group, sued in federal court to enjoin enforce-ment of the regulation. The tobacco companies argued that the regulation

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constituted compelled speech in violation of the First Amendment.

The D.C. Circuit agreed that the FDA’s graphic warnings violated the First Amendment.

“The graphic warnings represent the FDA’s attempt to level the playing field, not only by limiting the [tobacco compa-nies’] ability to advertise, but also by forc-ing the companies to bear the cost of dis-seminating an anti-smoking message. But as the Supreme

Court recently reminded us, ‘[t]hat the [government] finds expression too persua-sive does not permit it to quiet the speech or to burden its messengers.’…

“The First Amendment requires the government not only to state a substantial interest justifying a regulation on com-mercial speech, but also to show that its regulation directly advances that goal. The FDA failed to present any data – much less the substantial evidence required under the [Administrative Procedures Act] – show-ing that enacting their proposed graphic warnings will accomplish the agency’s stat-ed objective of reducing smoking rates,” the court said.

U.S. Court of Appeals, D.C. Circuit. R.J. Reynolds v. Food & Drug Administration, No. 11-5332. Aug. 24, 2012. Lawyers USA No. 993-3461.

CRIMINALExpert on eyewitness fallibility could testify

A murder defendant should have been permitted to introduce expert testimony on the unreliability of eyewitness identi-fication, the Connecticut Supreme Court has ruled.

The defendant was charged with shoot-ing and wounding one man at a bar, and a short time afterwards shooting to death two men in a car. A ballistics expert later determined that the same gun was used in

all three shootings. Multiple eyewitnesses placed the defendant at or fleeing from both crime scenes.

The trial judge, following long-standing state precedent, prohibited the defendant from presenting an expert who was pre-pared to testify how stress and other factors can render an eyewitness’ identification of a suspect unreliable. But the state supreme court, citing mounting scientific evidence bringing into question the reliability of eyewitness identification, concluded that such expert testimony should be allowed.

“[W]e conclude that the reliability of eyewitness identifications frequently is not a matter within the knowledge of an aver-age juror and that the admission of expert testimony on the issue does not invade the province of the jury to determine what weight to give the evidence,” the court said.

The court nevertheless upheld the de-fendant’s convictions, citing overwhelming evidence of guilt.

Connecticut Supreme Court. State v. Guil-bert, No. SC 17948. Sept. 4, 2012. Lawyers USA Nos. 993-3464 (majority) and 993-3465 (concurrence).

Most of tough immigration law unenforceable

Federal immigration law in most part preempts an Alabama law placing broad restrictions on those who are in the coun-try illegally, the 11th Circuit has ruled.

The decision reverses in part a ruling by a U.S. District Court. (See “State can enforce parts of tough anti-immigrant law,” Lawyers USA, Oct. 4, 2011. Search terms for Lawyers USA’s website: Alabama and immigration.)

In June 2011, the Alabama governor signed into law the Beason-Hammon Alabama Taxpayer and Citizen Protection Act. The statute imposes tough employ-ment and business restrictions on illegal immigrants, while authorizing immigra-tion checks of criminal suspects and public school students.

The U.S. Justice Department sued to en-join enforcement of what many consider to be the strictest anti-immigration measure in the country. The federal government argued that federal immigration law pre-empted the Alabama law.

The 11th Circuit held that most of the challenged provisions could not stand under the U.S. Supreme Court’s decision in Arizona v. U.S. (132 S.Ct. 2492). (See “Federal law trumps portion of Ariz. im-migration statute,” Lawyers USA, June 25, 2012. Search terms for Lawyers USA’s website: Arizona and immigration.)

In striking down that part of the state law criminalizing an illegal immigrant’s failure to complete or carry registration documents, the 11th Circuit said “any at-tempt by

Alabama to enforce its own require-ments would dilute federal control over immigration enforcement and detract from Congress’s comprehensive scheme.”

In finding preempted a provision mak-ing it a crime for illegal immigrants to apply for work in the state, the court said “[t]his attempt to criminalize conduct that Congress has chosen not to criminalize presents an obstacle to accomplishment of federal law.”

On the other hand, the court followed the teachings of Arizona to uphold Ala-bama’s requirement that police investigate the immigration status of detainees and arrestees when there is a reasonable suspi-cion that they are in the country illegally.

In a companion case brought by pri-vate plaintiffs, Hispanic Interest Coalition of Alabama v. Alabama Governor, the 11th Circuit ruled that that part of the Alabama law establishing a process for schools to collect data about the immigration status of students who enroll in public school violated equal protection.

And in another decision issued the same day, Georgia Latino Alliance for Human Rights v. Governor of Georgia, the court concluded, in accordance with Arizona,


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that federal immigration law preempted certain aspects of a Georgia anti-immigra-tion law.

U.S. Court of Appeals, 11th Circuit. U.S. v. Alabama, No. 11-14532. Aug. 20, 2012. Lawyers USA No. 993-3455.

Georgia can enforce part of anti-immigrant law

Georgia can enforce those portions of a new state immigration law pertaining to police stops, but not those that create substantive offenses for facilitating illegal immigration, the 11th Circuit has ruled.

In 2011, Georgia lawmakers enacted the Illegal Immigration Reform and Enforce-ment Act to address the problem of illegal immigration within the state. (See “Geor-gia passes Arizona-style immigration bill,” Lawyers USA, April 18, 2011. Search terms for Lawyers USA’s website: Geor-gia and immigration.) Hispanic advocacy groups sued to enjoin enforcement of the Act, alleging it was preempted by federal immigration law.

The district court enjoined two provi-sions of the Act, one authorizing police to investigate the immigration status of an individual based on probable cause, and a second creating substantive state offenses for transporting, harboring or otherwise assisting illegal immigrants.

The 11th Circuit held that the investiga-tory provision could be enforced in light of the U.S. Supreme Court’s decision to up-hold a similar Arizona statute in Arizona v. U.S. (132 S.Ct. 2492). (See “Federal law trumps portion of Ariz. immigration stat-ute,” Lawyers USA, June 25, 2012. Search terms of Lawyers USA’s website: Arizona and immigration.)

“The Supreme Court’s holding and ex-planation [in Arizona] apply with full force to [the Georgia investigatory provision], and we reject the current preenforcement challenge to its validity,” the 11th Cir-cuit said.

However, the court also followed Ari-zona to uphold on preemption grounds the injunction against that portion of the Georgia statute creating substantive immi-gration offenses.

“[T]he criminal acts of harboring and transporting unlawfully present aliens constitute an impermissible ‘complement’ to the [federal immigration law] that is in-consistent with

Congress’s objective of creating a com-prehensive scheme governing the move-ment of aliens within the United States,” the court said.

On the same day it issued its decision in this case, the 11th Circuit reached similar decisions in two cases challenging an Ala-bama anti-immigration law.

U.S. Court of Appeals, 11th Circuit. Geor-gia Latino Alliance for Human Rights v. Governor of Georgia, No. 11-13044. Aug. 20, 2012. Lawyers USA No. 993-3454.

Police could get DNA from breath testing device

Police didn’t need a warrant to get a ho-micide suspect’s saliva for DNA analysis from a device used to administer a breath test required as a term of his probation, Maryland’s highest court has ruled in af-firming a conviction.

The defendant became a suspect in a homicide when he was on probation for a drunk driving offense. Police investigat-ing the homicide obtained a sample of the defendant’s saliva left on a straw for a breath testing device. The device was used to check the defendant’s compliance with an alcohol monitoring program mandated by the terms of his probation. DNA anal-ysis of the saliva linked the defendant to the homicide.

The defendant moved to suppress, argu-ing that police violated the Fourth Amend-ment by obtaining the DNA evidence without a warrant. But the court held that police only needed reasonable suspicion to collect the defendant’s saliva.

“[W]e hold that a person on probation from a drunken driving offense has … a significantly diminished expectation of privacy. Moreover, a probationer’s expec-tation of privacy is diminished even when the new crime under investigation is not related to the crime that led to the proba-tion sentence,” the court said.

Maryland Court of Appeals. Corbin v. State, No. 48, Sept. Term, 2011. Aug. 22, 2012. Lawyers USA No. 993-3452.

EMPLOYMENTEmployee may avoid rotating shifts under ADA

An employee with fibromyalgia and sleep apnea could maintain a disability dis-crimination claim based on his employer’s refusal to allow him to work only a straight day shift, the 7th Circuit has ruled in re-versing a summary judgment.

The plaintiff worked as a tractor operator on the day shift at a manufacturing facil-ity owned by the defendant. Because of the plaintiff ’s medical problems with fibro-myalgia and sleep apnea, his doctors had advised him to work regular day positions, without rotations and overtime.

Following a reorganization of its work-force, the defendant required the plain-tiff to rotate between day, evening, and night shifts.

Claiming his fatigue and pain made it impossible for him to work rotating shifts, the plaintiff sued under the Americans with Disabilities Act, alleging the defen-dant denied him a reasonable accommo-dation in the form of straight-day shifts without overtime.

The 7th Circuit concluded that a jury issue existed as to whether the plaintiff was “disabled” within the meaning of the Act by a “substantial, severe, and long-term limitation on his ability to sleep.”

Moreover, the court concluded that the defendant failed to establish conclusively




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that working rotating shifts and overtime were “essential functions” of the job.

“[W]e find that [the plaintiff ] has pre-sented enough evidence to establish a genuine dispute of material fact about his qualification to work available straight-time positions, and [the defendant] did not offer him those positions. This is enough to withstand summary judgment on his ADA claim,” the court said.

U.S. Court of Appeals, 7th Circuit. Feld-man v. Olin Corp., No. 10-3955. Aug. 27, 2012. Lawyers USA No. 993-3463.

Demand for ‘counseling’ may violate ADA

An employer may have violated federal disability discrimination law when it alleg-edly demanded that an employee undergo counseling to address concerns about her mental health, the 6th Circuit has ruled in reversing a summary judgment.

Section §12112(d)(4)(A) of the Ameri-cans with Disabilities Act prohibits em-ployers from requiring a “medical examina-tion” or “mak[ing] inquiries of an employee as to whether such employee is an individ-ual with a disability” unless “such examina-tion or inquiry is shown to be job-related and consistent with business necessity.”

In this case, the plaintiff worked for the defendant as an emergency medical tech-nician. In response to concerns raised by co-workers about the plaintiff ’s well being, the plaintiff ’s supervisor allegedly told her that she would need to obtain psychologi-cal counseling in order to keep her job. In-stead of accepting counseling, the plaintiff quit work and sued under §12112(d)(4)(A), alleging that the defendant had re-quired her to undergo a “medical examina-tion” without proper justification.

The defendant argued that counseling alone does not fall within the statute’s defi-nition for “medical examination,” but the court disagreed.

“These facts are sufficient for a reasonable

jury to conclude that [the defendant] in-tended for [the plaintiff ] to attend coun-seling to explore her possible affliction with depression, or a similar mental-health impairment, so that she could receive the appropriate corresponding treatment. This uncovering of mental-health defects at an employer’s direction is the precise harm that § 12112(d)(4)(A) is designed to pre-vent absent a demonstrated job-related business necessity,” the court said.

U.S. Court of Appeals, 6th Circuit. Kroll v. White Lake Ambulance Authority, No. 10-2348. Aug. 22, 2012. Lawyers USA No. 993-3458.

Court reinstates $3.5M punitive award

A Chrysler employee produced suffi-cient evidence of recklessness to justify a substantial award of punitive damages in a Title VII hostile environment case, the 7th Circuit has ruled in reinstating a $3.5 million jury verdict.

The plaintiff is Cuban-American and Jewish. He worked as a pipefitter at a Chrysler assembly plant. More than 50 times in a three-year span, he was the tar-get of racist, xenophobic, homophobic, and anti-Semitic graffiti that appeared around the plant.

The plaintiff sued for hostile work envi-ronment. A jury found Chrysler liable and awarded $709,000 in compensatory dam-ages and $3.5 million in punitive damages.

The district court vacated the award of punitive damages, concluding that the plaintiff failed to present sufficient evi-dence for the jury to decide that Chrysler recklessly disregarded his federally pro-tected rights.

But the 7th Circuit found ample evi-dence to support the jury’s punitive award.

“Chrysler argues that it cannot be li-able for punitive damages because it made a good-faith effort to comply with the requirements of Title VII. A good-faith effort at compliance, however, is not a

matter of declarations about how much the employer cared about a victim of harass-ment or about how hard certain [human resources] employees say they worked to rectify the situation. …

“When those declarations are belied by the employer’s actions, talking a good game will not immunize an employer from a judgment that it was reckless. The jury reasonably determined that Chrysler’s ac-tions did not add up to a good-faith effort to end [the plaintiff ’s] harassment, and, much less, that its actions were (at least) reckless,” the court said.

U.S. Court of Appeals, 7th Circuit. May v. Chrysler Group, No. 11-3000. Aug. 23, 2012. Lawyers USA No. 993-3457.

Age discrimination claim can proceed under §1983

State attorneys were not entitled to im-munity when sued by a former employee for age discrimination under §1983, the 7th Circuit has ruled in affirming judgment.

The plaintiff worked as an assistant at-torney general for the state of Illinois. He was fired at the age of 60. In addition to su-ing the state and the state attorney general for age discrimination under the federal Age Discrimination in Employment Act (ADEA), the plaintiff sued the attorney general and certain department officials in their individual capacities under §1983, citing a violation of equal protection.

The individual-capacity defendants ar-gued that they were entitled to qualified immunity with respect to the plaintiff ’s §1983 claim. Specifically, they argued that his §1983 lawsuit was barred because the ADEA provides the exclusive remedy for age discrimination.

The 7th Circuit decided that the ADEA does not preclude a §1983 age discrimina-tion claim.

“Although the ADEA enacts a compre-hensive statutory scheme for enforcement of its own statutory rights … , we find that




Continued on page 9

it does not preclude a §1983 claim for con-stitutional rights. While admittedly a close call, especially in light of the conflicting decisions from our sister circuits, we base our holding on the ADEA’s lack of leg-islative history or statutory language pre-cluding constitutional claims, and the di-vergent rights and protections afforded by the ADEA as compared to a §1983 equal protection claim,” the court said.

It noted contrary decisions by the 1st, 4th, 5th, 9th, 10th and D.C. Circuits.

U.S. Court of Appeals, 7th Circuit. Levin v. Madigan, No. 11-2820. Aug. 17, 2012. Lawyers USA No. 993-3453.

FAMILYMilitary retiree must compensate ex-wife

A military retiree was required to make his ex-wife whole to the extent his decision to receive a tax benefit for disabled veter-ans effectively eliminated her share of his retirement benefits, the Arizona Court of Appeals has ruled in reversing judgment.

The husband is a disabled Vietnam vet-eran. When the parties divorced in 1993, the husband was receiving monthly mili-tary disability benefits but had yet to retire. The parties’ divorce decree awarded the wife 50 percent of his future retirement.

In 2004, the Veterans Administration determined that the husband was 100 percent disabled and found him eligible to receive Combat-Related Special Com-pensation (CRSC) benefits. The CRSC program allows injured combat veterans to choose to receive tax-free benefits in ex-change for a dollar-for-dollar reduction in their retirement pay. The husband elected to receive CRSC, thereby all but eliminat-ing the wife’s share of his retirement pay.

The wife argued that the husband was required to make her whole for her loss of retirement pay, even though the parties’ divorce decree did not specifically address

the disability waiver exercised by the hus-band in this case.

The court agreed, explaining that under state law “a former spouse may not uni-laterally defeat an interest that a decree of dissolution has granted to the other. Given that the husband’s unilateral decision to elect a more favorable tax treatment for his receipt of government benefits decimated the wife’s sole-and-separate interest in the retirement benefits he waived, equity requires that he must hold her harmless from the consequences of his action. … [T]he absence of an express indemnity in the decree is irrelevant to her right to relief in such a circumstance.”

Arizona Court of Appeals. Merrill v. Mer-rill, No. 1 CA-CV 11-0103. Aug. 9, 2012. Lawyers USA No. 993-3460.

PERSONAL INJURY & TORTMedtronic bone graft suit isn’t preempted

Federal law does not preempt a prod-uct liability suit brought by a woman who claimed she suffered injuries as a con-sequence of Medtronic’s promotion of a bone graft device for “off-label” uses, a California trial court has ruled in denying summary judgment.

A surgeon used an INFUSE bone graft manufactured by Medtronic to fuse bone in the plaintiff ’s back. Instead of experi-encing relief from her back pain, the plain-tiff alleged that her condition worsened and that she required additional surgery.

The plaintiff filed a product liability claim, alleging that her surgeon used the INFUSE device in a manner that had not been approved by the Food and Drug Ad-ministration. According to the plaintiff, Medtronic was liable because it had il-legally promoted its bone graft device for such “off-label” uses.

Medtronic argued that the plaintiff ’s claims were expressly preempted by federal

law under Riegel v. Medtronic, Inc. (552 U.S. 312). (See “State law claims over med-ical devices are preempted,” Lawyers USA, March 10, 2008. Search terms for Lawyers USA’s website: Riegel and Medtronic.)

The court disagreed, explaining the plaintiff ’s claim “is not based on allega-tions that

Medtronic’s device violated state tort law notwithstanding compliance with the relevant federal requirements. In contrast, the plaintiff here is alleging that Medtronic promoted the use of its device in violation of federal requirements. Accordingly, Rie-gel is not authority that plaintiff ’s claims against Medtronic are preempted here.”

In addition, the court rejected Medtron-ic’s contention that the plaintiffs’ lawsuit was impliedly preempted under Buckman Co. v. Plaintiffs’ Legal Comm. (531 U.S. 341). (See “Medical device maker can’t be sued in tort for ‘fraud on the FDA,’” Law-yers USA, March 5, 2001. Search term for Lawyers USA’s website: Buckman.)

California Superior Court, Los Angeles County. Cabana v. Stryker Biotech, No. BC 465 313. Aug. 20, 2012. Lawyers USA No. 993-3467.

Psychiatrist isn’t immune from suit in prison suicide

A private doctor who provided psychiat-ric services at a local prison could not claim qualified immunity when sued for failing to prevent an inmate’s suicide, the 6th Cir-cuit has ruled in affirming judgment.

The defendant provided psychiatric ser-vices for prison inmates as an employee of a non-profit community mental health or-ganization. The plaintiff ’s son hanged him-self while an inmate at a local county pris-on. The young man had requested to see the defendant about his anti-depression medication, but committed suicide before the two were able to meet.

The plaintiff sued under §1983, alleg-ing that the defendant was deliberately



indifferent to her son’s serious medi-cal need.

The defendant contended that he was entitled to qualified immunity.

But the court held that a privately paid physician working for the public is not en-titled to the immunity customarily afforded to government employees in §1983 suits.

“[T]here does not appear to be any history of immunity for a private doctor working for the government, and the poli-cies that animate our qualified-immunity cases do not justify our creating an im-munity unknown to the common law,” the court said.

U.S. Court of Appeals, 6th Circuit. McCul-lum v. Tepe, No. 11-3424. Aug. 28, 2012. Lawyers USA No. 993-3466.

Settlement with doctor didn’t release hospital

A settlement with a pediatrician over catastrophic, post-birth injuries did not

also release a nonsettling hospital from li-ability for the child’s economic damages, the California Supreme Court has ruled in reversing judgment.

The plaintiff suffered irreversible brain damage six days after his birth. He sued his pediatrician and the hospital in which he was born, alleging that there was a negligent failure to prevent, diagnose and treat the blood condition that caused his brain injury.

Before trial, the pediatrician agreed to a settlement for the $1 million limit of his insurance. The trial judge decided that the settlement was not in good faith because it failed to reflect the pediatrician’s propor-tionate share of his anticipated liability. A jury subsequently found that the pediatri-cian was 55 percent at fault and the hos-pital was 40 percent at fault, awarding the plaintiff nearly $100 million.

The hospital argued that, under the state’s “release rule,” the plaintiff ’s settle-ment with the pediatrician released the hospital from liability for the plaintiff ’s economic damages.

But the state supreme court decided that the release rule was no longer good law. “Under the common law release rule, the plaintiff, injured for life through no fault of his own, would be compensated for only a tiny fraction of his total economic damages, a harsh result. … In light of the unjust and inequitable results the common law release rule can bring about, as shown in this case, we hold that the rule is no longer to be fol-lowed in California,” the court said.

Instead, the court held that “when a set-tlement with a tortfeasor has judicially been determined not to have been made in good faith, nonsettling joint tortfeasors remain jointly and severally liable, the amount paid in settlement is credited against any damages awarded against the nonsettling tortfeasors, and the nonsettling tortfeasors are entitled to contribution from the set-tling tortfeasor for amounts paid in excess of their equitable shares of liability.”

California Supreme Court. Leung v. Ver-dugo Hills Hospital, No. S192768. Aug. 23, 2012. Lawyers USA No. 993-3456.

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