Lawyers USA...sue in the nation’s workforce. The plan promised “swift and responsive attention” to issues surrounding the inves-tigation and litigation of disability bias claims,

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SATURDAY, SEPTEMBER 15, 2012 | ISSUE 40

WEEKLY UPDATE

BY KIMBERLY ATKINS | STAFF WRITER

WASHINGTON – Employment at-torneys say that they have seen an in-crease in disability-related charges since final regulations under the Americans with Disabilities Act Amendments Act went into effect more than a year ago.

Lawyers say they have also noticed a dramatic change in the Equal Employ-ment Opportunity Commission’s ap-proach to disability bias investigations.

The EEOC has been “more aggres-sive” since the regulations were handed down, said Eric E. Kinder, an attorney at Spilman, Thomas & Battle in Charleston, W.Va.

Last year, the EEOC issued final regu-lations under the 2009 ADA Amend-ments Act, a law that broadened the definition of “disability.” The Act also expanded claimants’ ability to bring

In ongoing mass tort litigation over vaginal mesh implants, new bellwether trial dates have been set for cases over the Avaulta mesh product, manufactured by C.R. Bard.

The development comes on the heels of the first jury verdict in a vaginal mesh case. In July, in a case that was not part of mul-tidistrict litigation, a California woman and her husband won a $5.5 million jury award in state court for injuries caused by the Avaulta mesh, including complete in-continence, chronic pain, inability to have sex and eight additional surgeries to try to remove the mesh.

Over 1,000 cases have been consolidat-ed in four multidistrict litigations against the major vaginal mesh makers, including C.R. Bard, American Medical Systems (AMS), Johnson & Johnson subsidiary Ethicon and Boston Scientific.

Hundreds more cases have been filed in coordinated state court actions.

The lawsuits allege that the products, which are implanted in the pelvic area to deal with sagging organs, are defectively designed and cause serious injuries by puncturing internal organs, migrating and often requiring corrective surgery.

The first set of bellwether trials in the Bard Avaulta MDL are set to begin in February 2013. The new batch will begin in June 2013.

– SYLVIA HSIEH

New law, EEOC focus spur more lawsuits

Birth injury claim against U.S. Government settles for $25MBY SARAH RODRIGUEZ | CONTRIBUTING WRITER

After six years and two federal appeals, the family of a child who suffered brain damage from a birth-related injury has reached a $25 million settlement with the U.S. Government.

Jennifer Cibula, her husband and their minor son, JC, sued the United States

under the Federal Tort Claim Act, alleg-ing that Navy physicians were negligent in their treatment of Cibula’s moderate-risk pregnancy. As a result, JC was born with permanent physical and neurologi-cal impairments.

The case was originally tried in the fall of 2006 before U.S. District Court Judge

Gerald Bruce Lee. Under the FTCA, the plaintiffs, who were living on a military base in San Diego at the time of JC’s birth, were able to seek damages under Califor-nia law.

On March 27, 2007, the judge awarded $28 million to the family.

More trials set for vaginal mesh litigation

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Page 2News LAWYERS USA WEEKLY UPDATE | SATURDAY, SEPTEMBER 15, 2012

“regarded as” disability bias claims by fo-cusing the inquiry on how an employee is treated by an employer rather than on the employer’s belief about the nature of the employee’s disability.

The new, expanded definitions prompted lawyers who represent employers to warn their clients that an increase in ADA-related claims could follow. That predic-tion was confirmed with the most recent EEOC statistics, which revealed that, in 2011, 25,742 disability discrimination charges were filed, up from 19,453 in 2008, the year before the law was passed.

EEOC priority EEOC officials say they intend to con-

tinue to place a high priority on disability-related claims. In its draft Strategic En-forcement Plan released Sept. 4, the agency identified ADA Amendments Act-related claims as the top emerging employment is-sue in the nation’s workforce.

The plan promised “swift and responsive attention” to issues surrounding the inves-tigation and litigation of disability bias claims, including “coverage issues, and the proper application of ADA defenses, such as undue hardship, direct threat, and busi-ness necessity.”

EEOC commissioners are even embark-ing on a nationwide speaking tour during the month of September in an effort to educate and engage employers and other stakeholders about the new rules.

“The more American employers un-derstand how to comply with the ADA Amendments Act, the less confusion and misunderstanding there will be over workplace accommodations, and that’s a

win-win for everyone,” Mary McIver, di-rector of the EEOC’s Training Institute, said in a statement.

The outreach program will feature EEOC Commissioners Chai Feldblum and Victoria A. Lipnic, as well as employ-ment law attorneys, human resources ex-perts and other federal officials.

Presumed disabledThe new, broader interpretation of what

constitutes a disability is responsible for significant changes in the litigation of dis-ability claims since the enactment of the ADA Amendments Act.

For example, courts had long held that obesity did not constitute a disability un-der the ADA unless it was related to an underlying medical condition that was recognized under the law. In the wake of the ADA Amendments Act, the EEOC has taken a broader interpretation of the meaning of disability, resulting in charges being filed against employers alleging obe-sity-related discrimination.

“The threshold now is much, much low-er,” said David Korn, a partner at Phelps Dunbar in New Orleans. “The expansive nature of the definition is very inclusive.”

The definition is so broad, lawyers say, that the EEOC’s investigations no longer start with determining the employee’s lim-itations, but rather the employers’ actions to accommodate them.

“The EEOC is essentially skipping any determination of whether something is a disability,” said Kinder. “It’s largely pre-suming the existence of the disability and moving straight to the issues of accommo-dation and hardship.”

Korn said that although he still sees

factual determinations on the disability is-sue, it is rarely where the litigation ends.

“There are still cases where a person claims to have a disability, and it is not sub-stantially limiting,” Korn said. “But where in the past there were many, many summa-ry judgments granted [in employers’ favor] on that issue, I see that trend changing.”

Proactive approach to accommodations

That trend has spurred lawyers to reach out to clients to stay ahead of potential litigation. “I’m doing more front-end work with clients,” Kinder said.

Korn, too, encourages his employer cli-ents to be proactive.

“What I tell my clients is, any time [an employee] claims to have a physical or mental impairment, [the employer] should have an individual, one-on-one discussion with the employee” about accommoda-tions, Korn said. “Be open with them. Say: ‘This is what you want, and this is what we can do, and can we reach an agree-ment together?’”

Reading EEOC guidance on the ac-commodation issue is helpful – but only to a point. The more disabilities that are covered under the law, the more individu-alized and fact-specific each request for ac-commodation can be.

“The EEOC issues plenty of guidance [and] there is case law, but when you are dealing with issues such as what consti-tutes an undue hardship, none of it fits per-fectly into an employment environment,” Korn said.

In some situations, the accommoda-tion issue may also implicate other laws, making the analysis more complicated. For example, if a worker injures himself on the job, that injury constitutes a dis-ability and he needs extended leave, the ADA, Family and Medical Leave Act and workers’ compensation laws come into play simultaneously.

“The EEOC has taken the position, in some cases, that extended leave is a reason-able accommodation,” Korn said. “Clients will ask me, “How much of an accom-modation is necessary? How much is too much?’ It’s difficult to say.”

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New law, EEOC focus spur more lawsuits

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Page 3News LAWYERS USA WEEKLY UPDATE | SATURDAY, SEPTEMBER 15, 2012

But the issue of whether the judgment would be paid under California law or Vir-ginia law continued to play out in the court system through the summer of 2012, ac-cording to Washington lawyer Thomas W. Mitchell, who represented the plaintiffs. Mitchell’s partners, Bruce J. Klores and Scott M. Perry, served as co-counsel.

Cibula, who became pregnant with JC in early 1997, had previously been diag-nosed with a heart condition that required her to take a beta-blocker medication. She also took medication for severe migraines, and had been diagnosed with lupus. All of these conditions are known to cause preg-nancy complications.

Cibula’s unborn child was specifically at risk for developing intrauterine growth re-striction, a condition where the fetus does not receive proper blood flow and oxygen, resulting in low birth weight and a head that grows abnormally larger than the body.

Routine ultrasounds performed early in Cibula’s pregnancy showed her fetus grow-ing at a normal rate.

But according to allegations, Cibula ex-perienced several complications mid-way through the pregnancy and underwent a series of tests. A maternal-fetal specialist at Balboa Naval Medical Center instructed Cibula’s treating obstetrician to monitor the pregnancy closely with frequent ul-trasounds and other tests as the due date drew closer.

For reasons that were never explained, Mitchell said, the obstetrician failed to perform these procedures. As a result, the physician was unaware that the fetus had developed severe growth restriction.

On Nov. 14, 1997, at 36 weeks gestation, Cibula underwent an emergency c-section

after signs of fetal distress became appar-ent. Prior to birth, the infant suffered se-vere hypoxia and a brain hemorrhage.

Due to significant bleeding in his brain during birth, JC, now 14, suffers from mental retardation, cerebral palsy and muscle contractures which give him little control over his limbs, Mitchell said. He is mostly confined to a wheelchair and re-quires a stomach tube for feeding. JC needs around-the-clock nursing care, and will never live independently or be employed, but otherwise has a normal life expectancy.

By the time suit was filed, the family had relocated to Northern Virginia. Un-der the FTCA, the law of the state where the negligence occurred governs the nature and amount of damages. The family would have been able to recover no more than $2 million under Virginia law. But in Califor-nia, there is no cap on recovery for future economic damages in a med-mal action.

Mitchell credited the testimony from a rehabilitation psychologist, along with an economist who calculated a life care plan that listed all of JC’s living and medical ex-penses, year by year.

“A very detailed plan was developed, set-ting forth every area of his needs,” Mitch-ell said.

Trust issuesThe court awarded the Cibulas

$2,704,800 for past care, $2,360,771 for lost future earnings, $250,000 to both mother and child for pain and suffer-ing (the cap under California law), and $22,823,718 for future care costs.

Applying Virginia law, the court ordered the future care award to be placed into a non-reversionary trust, to be managed by a court-appointed guardian ad litem.

But the government protested, argu-ing that under California law, the award should have been placed into a reversion-ary trust. Under this arrangement, the U.S. would make one lump-sum payment into the trust, which would then be parceled out into periodic payments to the family, and the balance would revert to the U.S. upon JC’s death.

The case was appealed to the 4th Circuit, and in January 2009 the court ruled that the district court erred in applying Virgin-ia law. The case was reversed and remanded for proper application of California law.

The case came back before the judge, but after a second proceeding in November 2009, the court was unable to devise a plan that reconciled the “competing objectives” of the FTCA and California law, and again ordered the government to pay a lump sum into a non-reversionary trust.

Again, the case was appealed. The ap-peals court disagreed with the lower court’s finding for a second time, and the case was set to go back before the judge later this year.

But prior to the date of the hearing, the plaintiffs’ attorneys and the govern-ment “hammered out an agreement for the settlement process,” Mitchell said. The parties consented to a payment plan that would ultimately cover JC’s medical and living expenses from the date of the origi-nal judgment through the end of his life.

The total payout is $25,184,489, and in-cludes approximately $1.6 million to pay back the costs of JC’s care between the date of the 2006 judgment and the date of settlement.

A version of this article originally appeared in Lawyers USA’s sister publication, Virginia Lawyers Weekly.


Birth injury claim against U.S. Government settles for $25M

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You can link to the full text of the opinions digested on this page by going to www.lawyersusaonline.com and searching the Lawyers USA website.

Page 4Top opiNioNs LAWYERS USA WEEKLY UPDATE | SATURDAY, SEPTEMBER 15, 2012

ATTORNEYSLawyer’s website must reflect actual practice

A lawyer misled the public in violation of professional rules of conduct by indicating on his website that the lawyers affiliated with his firm focused on one area of prac-tice when in fact they practiced in multiple areas, a Virginia trial court has ruled.

The defendant is the sole principal and owner of his law firm. On his website, let-terhead and business cards, the defendant represented that he had a “national” law firm with multiple attorneys and nine of-fices in three states and India.

The state bar alleged that the defen-dant violated professional rules because his website represented that each of the firm’s attorneys practiced in only one area of the law. According to the state bar, the individual attorneys when questioned ad-mitted to practicing in multiple areas, one lawyer acknowledging that he had as many as 18 practice areas.

The defendant argued that he did not mislead the public because the firm’s law-yers “primarily” practiced in only one area.

But the court concluded that the de-fendant violated rules setting the require-ments for communicating fields of practice and issued a public reprimand.

In resolving other charges of miscon-duct, the defendant agreed to voluntarily change his website to denote that certain of his listed office locations were in fact “virtual offices” which, although used to meet prospective clients, were unstaffed and did not have regular office hours.

In addition, the defendant agreed to alter his agreements with his attorneys to ensure that they were in fact employees rather than independent contractors.

The state bar had found that the firm’s attorneys had worked as independent con-tractors and was concerned that, without a formalization of employment status, the defendant’s website created a false

impression that his firm was a collection of attorneys employed and supervised by the defendant.

Virginia Circuit Court, Fairfax County. Virginia State Bar v. Sriskandarajah, No. CL 2012-4137. June 28, 2012. Lawyers USA No. 993-3488.

BUSINESSRadio station’s calls didn’t violate TCPA

A radio station’s prerecorded telemar-keting calls did not violate the Telephone Consumer Protection Act, the 6th Circuit has ruled in affirming a dismissal.

The plaintiff received a prerecorded tele-marketing call from a Clear Channel ra-dio station. The call promoted the station’s soft rock format and provided instructions for participation in an on-air contest. The plaintiff filed a class action, alleging that the telemarketing calls violated the Act.

Clear Channel argued that its calls were exempt from the Act’s provisions under a Federal Communications Commission regulation allowing so-called “hybrid” calls that both announce a contest and promote the station generally.

The court agreed that the FCC regula-tion exempted Clear Channel’s telemar-keting calls.

Moreover, the court held that the reg-ulation was entitled to deference under Chevron U.S.A. v. Natural Res. Def. Council (467 U.S. 837).

“Despite [the plaintiff ’s] many attempts to show that the FCC’s decision is arbi-trary and capricious, the record here does not support that finding. In reaching its exemption decision, the FCC considered the impact on privacy rights. For example, the FCC noted that ‘[f ]ew commenters in this proceeding described either receiving such messages or that they were particu-larly problematic.’ And the fact that [the plaintiff ] and other commenters disagree with the result the FCC reached does not

detract from the deference accorded to the agency because the FCC considered and rejected these perspectives during its rule-making,” the court said.

U.S. Court of Appeals, 6th Circuit. Leyse v. Clear Channel Broadcasting, No. 10-3739. Sept. 6, 2012. Lawyers USA No. 993-3485.

CIVIL PRACTICEOnline shoppers not bound by arbitration clause

Plaintiffs who alleged they were unlaw-fully charged for membership in an on-line travel discount club were not bound by an arbitration provision communicated to new members through confirmation e-mails, the 2nd Circuit has ruled in affirm-ing judgment.

The defendant operates an online pro-gram that offers discounts on travel-re-lated goods and services in exchange for a monthly membership fee. The plaintiffs filed a class action against the defendant alleging various consumer protection claims under California and Connecticut law. According to the plaintiffs, member-ship fees were improperly charged to their credit cards after they were unwittingly enrolled in the defendant’s program when they made purchases on Priceline.

The defendant argued that the plaintiffs knowingly enrolled in its discount club and were bound by an arbitration provision in its online enrollment contract. The defen-dant claimed it disclosed the arbitration clause in a confirmation e-mail sent to the plaintiffs when they enrolled.

But the court concluded that, regardless of which state law applied, an arbitration provision communicated in this fashion did not provide customers with sufficient notice to be contractually binding.

“[A] reasonable person would not be expected to connect an e-mail that the re-cipient may not actually see until long af-ter enrolling in a service (if ever) with the

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contractual relationship he or she may have with the service provider, especially where the enrollment required as little effort as it did for the plaintiffs here. …

“In this context the email would not have ‘raise[d] a red flag vivid enough to cause a reasonable [person] to anticipate the imposition of a legally significant al-teration to the terms and conditions’ of the relationship with [the defendant],” the court said.

U.S. Court of Appeals, 2nd Circuit. Sch-nabel v. Trilegiant Corp., No. 11-1311-cv. Sept. 7, 2012. Lawyers USA No. 993-3486.

CIVIL RIGHTSTaser warning ruled ‘sufficient’

The manufacturer of a Taser used by po-lice to subdue a mentally disturbed man provided sufficient warning that its repeat-ed use may lead to death, the 9th Circuit has ruled affirming a summary judgment.

In 2007, Phoenix, Ariz. police used a Taser X26 electronic control device to subdue the plaintiff ’s adult son, who had barricaded himself in a small bedroom in order to perform exorcisms on his daugh-ter and granddaughter.

The plaintiff ’s son, who was obese, went into cardiac arrest and died. Traces of mari-juana were found in the man’s bloodstream when an autopsy was performed. The medical examiner listed cause of death as “excited delirium” related to heart disease.

Alleging that her son had been need-lessly tased up to 22 times, the plaintiff filed a §1983 claim against police for ex-cessive force.

In addition, the plaintiff filed a strict li-ability claim against Taser International, alleging that the manufacture should have included warnings that repeated expo-sure to its products could lead to sudden death due to cardiac failure, particularly among those who are obese, mentally ill, or intoxicated.

But the court concluded that the manu-facturer’s warnings in 2007 were sufficient.

“In addition to warning that its products should generally be used with care, Taser specifically warned that ‘[w]hen practical, [officers should] avoid [using] prolonged or continuous exposure(s) to the TASER device’s electrical discharge’ because ‘in susceptible people it is conceivable that the stress and exertion of extensive repeated, prolonged or continuous application(s) of the TASER device may contribute to cu-mulative exhaustion, stress, and associated medical risk(s).’

The warning also explains that one of the medical risks associated with exhaustion is Sudden In-Custody Death Syndrome. These warnings cover precisely what hap-pened here,” the court said.

Regarding the plaintiff ’s §1983 claim, the court decided that the officers’ use of the Taser was justified given the “vicious,” close quarters struggle that occurred when they attempted to subdue her son and pro-tect the man’s daughter and granddaughter.

U.S. Court of Appeals, 9th Circuit. Mar-quez v. City of Phoenix, No. 10-17156. Sept. 11, 2012. Lawyers USA No. 993-3493.

Verdict against music downloader reinstated

An award of $222,000 against a defen-dant who illegally downloaded 24 copy-righted songs was constitutional, the 8th Circuit has ruled in reversing judgment.

Recording companies in the music in-dustry sued the defendant for copyright infringement, alleging that she illegally downloaded 24 songs and distributed the recordings via an online peer-to-peer file sharing application. A jury found the defendant liable and awarded $222,000, but a retrial was ordered which resulted in a $1.92 million verdict. (See “Music industry downloads $1.9 million victory in retrial,” Lawyers USA, June 29, 2009. Search terms for Lawyers USA’s website: Thomas-Rasset.)

After the music industry refused to

accept a reduction in the award, a third trial on damages was held. A jury awarded $1.5 million, which the defendant con-tended was unconstitutionally excessive. (See “Music downloading verdict leads to constitutional challenge,” Lawyers USA, Nov. 19, 2010.)

The district court concluded that due process limited the music industry’s dam-ages to $2,250 per song, or three times the minimum statutory damages available un-der the Copyright Act. (See “Illegal music download damages set at $2,250 per song,” Lawyers USA, July 27, 2011).

Here, the music industry sought rein-statement of the original $222,000 jury verdict. The 8th Circuit concluded that the original jury award satisfied due process.

“[W]e conclude that an award of $9,250 per each of twenty-four works is not ‘so severe and oppressive as to be wholly dis-proportioned to the offense and obvious-ly unreasonable.’…

“In holding that any award over $2,250 per work would violate the Constitution, the district court effectively imposed a tre-ble damages limit on the $750 minimum statutory damages award. … [However, the] limits of treble damages to which the district court referred, such as in the an-titrust laws or other intellectual property laws, represent congressional judgments about the appropriate maximum in a given context. They do not establish a constitu-tional rule that can be substituted for a dif-ferent congressional judgment in the area of copyright infringement,” the court said.

U.S. Court of Appeals, 8th Circuit. Capi-tol Records v. Thomas-Rasset, No. 11-2820. Sept. 11, 2012. Lawyers USA No. 993-3492.

Civil rights plaintiff can’t proceed under §1981

A civil rights plaintiff could not cir-cumvent §1983’s two-year statute of limi-tations by suing for race discrimination under §1981, the 6th Circuit has ruled in affirming a dismissal.


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The plaintiff pursued a degree in psy-chology at a state university. In 2006, the faculty voted against promoting the plain-tiff to doctoral status. In 2010, the plaintiff sued the university and certain school of-ficials for race discrimination. In order to avoid §1983’s two-year statute of limita-tions, the plaintiff sued under §1981.

The individual defendants argued that the plaintiff ’s lawsuit was barred because §1983 provided her exclusive remedy.

The court agreed, explaining “[w]hether the violation of §1981 is committed by a municipality through its policies or cus-tom, or individuals acting under the color of state law, §1983 contains an express clause permitting an aggrieved person to sue the state actor for money damages. Section 1983’s express clause permitting these suits obviates the need to imply the same right under the general provisions of §1981.”

In addition, the court decided that the plaintiff ’s §1981 claims against the university were barred by the Elev-enth Amendment.

U.S. Court of Appeals, 6th Circuit. Mc-Cormick v. Miami University, No. 11-3614. Sept. 10, 2012. Lawyers USA No. 993-3490.

CRIMINALDefendant can’t introduce fMRI lie detection results

A criminal defendant could not intro-duce results from a functional magnetic resonance imaging (fMRI) lie detection test to prove the veracity of his denials of wrongdoing, the 6th Circuit has ruled.

The decision affirms a ruling by a U.S. District Court. (See “Brain scan lie-detec-tion evidence inadmissible,” Lawyers USA, June 7, 2010. Search term for Lawyers USA’s website: Semrau.)

The defendant is the owner of two com-panies that provided follow-up psychiat-ric care to nursing home patients. Federal

prosecutors alleged that the defendant en-gaged in healthcare fraud by submitting electronic claim forms to Medicare and Medicaid that ensured he was reimbursed at a higher rate than was justified by the services actually received by patients.

The defendant claimed he had no intent to defraud the government and was sim-ply confused by the complex billing codes used by Medicare and Medicaid. In order to prove that he was being truthful, at trial the defendant sought to introduce the re-sults of an fMRI lie-detection test admin-istered by a forensic expert.

Proponents of fMRI claim that certain areas of the brain are activated by decep-tion, and that the truthfulness of a particu-lar subject can be gauged by an analysis of an MRI scan of his or her brain during the course of targeted questioning.

But the 6th Circuit concluded that the defendant’s fMRI lie-detection evidence failed to satisfy the Daubert standard for the admission of scientific expert evidence.

“There was simply no formal research presented at the Daubert hearing dem-onstrating how the brain might respond to fMRI lie-detection testing examin-ing potential deception about real world, long-term conduct occurring several years before testing in which the subject faces extremely dire consequences (such as a prison sentence) if his answers are not be-lieved,” the court said.

U.S. Court of Appeals, 6th Circuit. U.S. v. Semrau, No. 11-5396. Sept. 7, 2012. Law-yers USA No. 993-3495.

EMPLOYMENTEmployer needn’t pay FICA taxes for severance pay

Severance payments received by employ-ees who lost their jobs as a result of their employer’s bankruptcy were not taxable as wages under the Federal Insurance Con-tributions Act, the 6th Circuit has ruled in affirming judgment.

Quality Stores was the largest agricul-tural-specialty retailer in the country until it filed for Chapter 11 bankruptcy protec-tion in 2001. Quality Stores gave sever-ance pay to certain employees who lost their jobs due to the cessation of business both before and after the company filed for bankruptcy. Because the severance pay-ments constitute gross income to the em-ployees for federal income tax purposes, Quality Stores reported the payments as wages on W-2 forms and withheld fed-eral income tax. The company also paid the employer’s share of FICA tax and withheld each employee’s share of FICA tax.

The company and 1,850 former em-ployees later sought a refund of a total of $1,000,125 from the Internal Revenue Service, arguing that the severance pay-ments constituted supplemental unem-ployment compensation benefits that are not taxable as wages under FICA.

The 6th Circuit agreed that Qual-ity Stores and its former employees were entitled to refunds of the disputed FICA payments.

“[T]he payments Quality Stores made to its employees pursuant to the pre- and post-petition [severance] plans qualify as [supplemental unemployment compen-sation benefits] payments under I.R.C. §3402(o). Because Congress has pro-vided that [supplemental unemployment compensation benefits] payments are not ‘wages’ and are treated only as if they were ‘wages’ for purposes of federal income tax withholding, such payments are not ‘wages’ for purposes of FICA taxation,” the court said.

U.S. Court of Appeals, 6th Circuit. U.S. v. Quality Stores, No. 10-1563. Sept. 7, 2012. Lawyers USA No. 993-3494.

Disabled state employee can’t sue under Title II

A state worker could not pursue an em-ployment discrimination claim under the




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federal statute guaranteeing access to pub-lic services and programs for those who suffer from disabilities, the 10th Circuit has ruled in affirming a dismissal.

Title I of the Americans with Disabili-ties Act expressly authorizes employment discrimination claims, whereas Title II of the ADA permits the disabled to sue for discrimination in accessing public “servic-es, programs, or activities.”

In this case, the plaintiff worked in an of-fice job for a state university in Oklahoma. She lost her job after being diagnosed with a degenerative spinal disc condition. The plaintiff sued for employment discrimina-tion under Title II rather than Title I, pre-sumably to avoid Title I’s administrative exhaustion requirement.

But the court concluded that Title II does not contain an independent cause of action for employment discrimination.

“[L]ooking to the larger composition of the ADA … quickly reminds us that it pro-ceeds in three distinct movements, forbid-ding ‘discrimination against persons with disabilities in three major areas of public life: employment, which is covered by Title I …; public services, programs, and activi-ties, which are the subject of Title II; and public accommodations, which are covered by Title III.’ All this reminds us, too, that each title does important and independent work – work that would be diminished, duplicated, even rendered superfluous were we to read Title II as covering employment discrimination,” the court said.

It noted similar decisions from the 3rd, 6th and 9th Circuits, and a contrary ruling from the 11th Circuit.

U.S. Court of Appeals, 10th Circuit. Elwell v. State, No. 11-6061. Sept. 11, 2012. Law-yers USA No. 993-3491.

Disabled employees entitled to reassignment

United Airline workers who lose their jobs due to disability are entitled

reassignment to vacant positions for which they are qualified, the 7th Circuit has ruled in reversing judgment.

In 2003, United Airlines adopted new reasonable accommodation guidelines to address disabled workers who can no lon-ger perform the essential functions of their current jobs. Under the new guidelines, employees are not entitled to automatic reassignment to vacant positions they can perform. Instead, such employees are merely entitled to preferential treatment in filling openings.

The U.S. Equal Employment Opportu-nity Commission sued, alleging that the new policy violated the Americans with Disabilities Act.

United Airlines argued that the new policy was consistent with a decision in an earlier 7th Circuit case, EEOC v. Humis-ton-Keeling (227 F.3d 1024). (See “ADA plaintiff can’t get reassignment,” Lawyers USA, Oct. 2, 2000. Search terms for Law-yers USA’s website: Humiston-Keeling)

But the 7th Circuit here decided that Humiston-Keeling was contrary to inter-vening U.S. Supreme Court rulings.

“We … hold that the ADA does indeed mandate that an employer appoint em-ployees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer,” the court said.

U.S. Court of Appeals, 7th Circuit. EEOC v. United Airlines, No. 11-1774. Sept. 7, 2012. Lawyers USA No. 993-3487.

ERISA plan isn’t liable for fraudulent withdrawal

An ERISA plan is not liable for the fraudulent withdrawal of pension funds by a participant’s ex-wife, the 10th Circuit has ruled in affirming judgment.

The plaintiff was a participant in a 401(k) employee stock ownership plan. When the plaintiff left his job, his rights in his plan account balance were fully vested.

However, the plaintiff did not elect to withdraw his money from his plan ac-count at the time, but deferred receipt of his benefits.

Following the plaintiff ’s divorce, the plan mailed the PIN number and other security information needed to access the plaintiff ’s account to the marital home where his ex-wife continued to live. The ex-wife used the information to withdraw the entire account balance of $42,000.

The plaintiff sued, alleging that the plan and his former employer were liable for the wrongfully withdrawn funds. Specifically, the plaintiff alleged that the plan’s refusal to reimburse him for the lost funds vio-lated ERISA’s nonforfeitability provision.

The court disagreed, explaining the “cir-cumstances of this case entailed no forfei-ture and do not violate ERISA’s nonfor-feitability provision. [The plaintiff ] was not deprived of his benefits due to the insolvency or termination of the plan, but rather due to [the ex-wife’s] wrongful ac-tions, which were facilitated by [the plain-tiff ’s] failure to maintain a current address with the defendants.”

In addition, the court concluded that terms of the plan did not require reimburs-ing a participant for the fraudulent with-drawal of plan monies.

U.S. Court of Appeals, 10th Circuit. Fos-ter v. PPG Industries, No. 10-5123. Sept. 5, 2012. Lawyers USA No. 993-3482.

FAMILYMom must sign child’s passport papers

An unwed mother could be ordered to sign documents necessary for her daugh-ter’s father to obtain a passport for the child, the Alaska Supreme Court has ruled in reversing judgment.

The parties had a daughter out of wed-lock. Although the parties share custody of their child, they have had difficulty




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cooperating in the girl’s upbringing. In order to visit relatives outside the U.S., the father applied for a passport for the daughter. Federal law requires the consent of both parents in order to obtain a pass-port for a child under the age of 16. When the mother refused to execute a notarized statement of consent, the father filed an action in state court to compel the moth-er’s cooperation.

The state supreme court concluded that the mother should have been ordered to execute the necessary consent forms.

“[The mother] has failed to offer a com-pelling reason why it would not be in [her daughter’s] best interests to obtain a passport. Rather, [the father] has demon-strated that [the daughter] has significant opportunities to travel abroad, including important school exchange opportuni-ties – to deny her a passport, without any contrary reason given by [the mother], as-suredly would harm her best interests,” the court said.

Alaska Supreme Court. Patrawke v. Liebes, No. S-14474. Sept. 7, 2012. Lawyers USA No. 993-3489.

PERSONAL INJURY & TORTState-law Raptiva suits preempted

Federal law preempted Michigan prod-uct liability actions that alleged injuries from the psoriasis drug Raptiva, the 6th Circuit has ruled in affirming judgment.

The decision addressed four consolidat-ed product liability actions alleging injuries from Raptiva. In each case, the plaintiffs al-leged that they suffered serious side effects and/or death as a result of taking the drug. In asserting design-defect, failure-to-warn, negligence and other claims, the plaintiffs alleged that drug maker Genentech knew of dangerous side effects that it concealed from the public and did not include on Raptiva’s label.

In 2009, Genentech voluntarily with-drew its psoriasis drug from the U.S. market because of the risk of a serious neurological infection. (See “Raptiva pulled off market,” Lawyers USA, April 9, 2009. Search term for Lawyers USA’s website: Raptiva.)

Genentech argued it was entitled to immunity under the Michigan Products Liability Act. The state law provides that drug makers are not liable if the allegedly dangerous drug and its label were approved by the Food and Drug Administration and were in compliance with the FDA’s ap-proval at the time that the drug left the manufacturer’s control.

The plaintiffs’ contended that immunity did not arise under the state law because of Genentech’s allegedly failed to submit updated safety information to the FDA, rendering Raptiva “non-compliant.”

But the court concluded that, regard-less of allegations of non-compliance, the plaintiffs’ lawsuits were foreclosed by cir-cuit precedent interpreting Michigan’s product liability law and Buckman Co. v. Plaintiffs’ Legal Committee (531 U.S. 341) (See “Medical device maker can’t be sued in tort for ‘fraud on the FDA,’” Lawyers USA, March 5, 2001. Search terms for Lawyers USA’s website: Buckman and committee.)

“Even characterized as non-compliance, [the plaintiffs’] ‘claim’ that Genentech is not entitled to immunity under the Act triggers the same concerns that animated Buckman

… – it is premised on violation of federal law, implicates the relationship between a federal agency and the entity it regulates,

and asks the court to assume a role usually held by the FDA – and is thus preempted,” the court said.

U.S. Court of Appeals, 6th Circuit. Marsh v. Genentech, No. 11-2373. Sept. 6, 2012. Lawyers USA No. 993-3483.

Cruise line may be liable for gang-related shooting

A cruise line may be liable for failing to warn passengers of the danger of gang vio-lence at a port of call, the 11th Circuit has ruled in reversing a dismissal.

The plaintiffs took their children on a Carnival cruise in the Caribbean. During a stop in St. Thomas, the plaintiffs and their children visited a local beach allegedly rec-ommended by a Carnival employee. On the way back to the ship, the plaintiffs’ 15-year-old daughter was struck and killed by a stray bullet when gang violence erupt-ed at a funeral along their route.

The plaintiffs sued Carnival in federal court in Florida, alleging that Carnival employees negligently failed to warn them about the potential for gang-related vio-lence in St. Thomas generally, and in the vicinity of the beach, specifically.

Carnival argued it had no duty to warn.The court disagreed, citing with approv-

al a Florida appellate ruling that a cruise line owes its passengers a duty to warn of known dangers beyond the point of debar-kation in places where passengers are in-vited or reasonably expected to visit.

In concluding that the complaint here sufficiently stated a cause of action, the court said that the plaintiffs’ negligent failure-to-warn claim “is more than a mere recitation of the elements of the cause of action. The facts alleged in the complaint are plausible and raise a reasonable expec-tation that discovery could supply addi-tional proof of Carnival’s liability.”

U.S. Court of Appeals, 11th Circuit. Chap-arro v. Carnival Corp., No. 11-14047. Sept. 5, 2012. Lawyers USA No. 993-3484.

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Out-of-state smoker may be member of ‘Engle’ class

A smoker who died from lung cancer in his home state of Virginia may have been a member of one of the Florida classes cer-tified for product liability claims against the tobacco industry, the Florida Court of Appeal has ruled in reversing a sum-mary judgment.

In 1994, a nationwide smokers’ class ac-tion was filed in Florida state court against numerous cigarette companies, includ-ing R.J. Reynolds. In 1996, a state court granted class certification, but limited it to include only Florida citizens and residents.

In 2006, after years of litigation, the Florida Supreme Court in Engle v. Liggett Group established the procedures for han-dling so-called “Engle” product liability claims against the tobacco industry. (See “Florida’s never-ending tobacco litiga-tion,” Lawyers USA, Feb. 12, 2007. Search terms for Lawyers USA’s website: Engle and Sebok).

In particular, the state supreme court set Nov. 21, 1996, as the cut-off date for Engle class inclusion, and allowed all class mem-bers to proceed with individual lawsuits if filed within one year of its decision.

This case involved the estate of a long-time smoker who lived most of his adult

life in Virginia before moving to Florida in 1990 at the age of 50. In 1991, the man was diagnosed with lung cancer. When doctors advised him that he had little time to live, he moved back home to Virginia, dying in June 1992.

His estate filed an Engle claim against R.J. Reynolds in 2007, within the one-year deadline set by the state supreme court.

R.J. Reynolds nonetheless argued that the estate’s lawsuit was time-barred be-cause its decedent had died outside of Florida and was therefore not a member of an Engle class entitled to tolling of the statute of limitations.

But the court here concluded that the man’s Engle membership was supported by his Florida residency at the time that he suffered his smoking-related illness.

“We believe … that inclusion in the En-gle class requires Florida residence or citi-zenship when the disease or condition first manifests itself, not at the time of death,” the court said.

Florida Court of Appeal. Bishop v. R.J. Reynolds, No. 5D11-2004. Aug. 31, 2012. Lawyers USA No. 993-3480.

Dad’s release doesn’t bar suit over injuries

BJ’s Wholesale Club could not enforce a release signed by a father before his child

sustained serious brain damage in a fall at a store play center, a Maryland appel-late court has ruled in reversing a sum-mary judgment.

The plaintiff is a member of BJ’s Whole-sale Club. The plaintiff ’s five-year-old son suffered serious brain damage when he fell from a play set at a play center for one of BJ’s stores.

When the plaintiff sued for negligence, BJ’s contended that the lawsuit was barred by a release of claims signed 15 months before the accident. The store required a signed release before a parent could drop off a child at a play center to go shopping.

But the court held that a parent may not waive by agreement a minor child’s future negligence claim against a commer-cial enterprise.

“We anticipate that our holding will provide incentives for owners and opera-tors of commercial facilities open to minor children to: (1) take reasonable safety pre-cautions in the operation and maintenance of their facilities; and (2) obtain adequate insurance to cover the risk of physical in-jury to their minor patrons, caused by the negligence of their employees and agents,” the court said.

Maryland Court of Special Appeals. Rosen v. BJ’s Wholesale Club, No. 2861, Sept. Term, 2009. Aug. 30, 2012. Lawyers USA No. 993-3479.

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