Articles Posted in U.S. 5th Circuit Court of Appeals

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Plaintiffs filed suit against the VA asserting wrongful-death and survival causes of action under Louisiana law. After the VA denied plaintiffs' claim, they filed suit under the Federal Tort Claims Act (FTCA), 28 U.S.C. 2671 et seq. The district court dismissed the case for lack of subject-matter jurisdiction. The court concluded that the administrative notice of claim filed by Plaintiff Pleasant was sufficient to give the agency written notice of the decedent's children's claims sufficient to enable the agency to investigate and to place a value on the claims, and was therefore sufficient to preserve the claims. Accordingly, the court reversed the judgment of the district court and remanded for further proceedings. View "Pleasant, et al. v. United States, et al." on Justia Law

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Plaintiff, the widow of the deceased, filed suit under 42 U.S.C. 1983, alleging claims that individual defendants used excessive force against her husband and that defendants acted with deliberate indifference to his medical needs. On appeal, plaintiff challenged the district court's grant of summary judgment as to all of plaintiff's claims. The court concluded that the record presented genuine issues of material fact from which a jury could conclude that excessive force was used against the husband. Therefore, the court reversed and remanded for the district court to consider in the first instance whether any or all of the individual defendants may proceed to trial on a theory of direct liability for use of force or, in the alternative, on a theory of bystander liability. The district court should also consider whether individual defendants are entitled to qualified immunity. The court affirmed the district court's grant of summary judgment in regards to the deliberate indifference claim and the municipal liability claim for failing to provide adequate training. View "Kitchen v. Dallas County Texas, et al." on Justia Law

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Plaintiff filed a products liability suit against generic and brand-name manufacturers of the prescription drug metoclopramide, alleging that her long-term use of generic metoclopramide caused her to develop tardive dyskinesia and that manufacturers provided misleading and inadequate warnings. The court affirmed the district court's judgment on the pleadings for the generic manufactures under Rule 12(c) on plaintiff's failure-to-warn, design-defect, and express-warranty claims because the claims were preempted by federal law; affirmed the dismissal of plaintiff's claims against the brand-name manufacturers under Rule 12(b)(6) because the claims were barred by Louisiana state law where plaintiff never ingested Reglan manufactured by brand-name manufacturers; even if Louisiana law did not apply, plaintiff has not established that name-brand defendants owed her a duty of care; and denied plaintiff leave to amend her complaint. Accordingly, the court affirmed the judgment of the district court. View "Johnson v. Teva Pharmaceuticals USA, Inc., et al." on Justia Law

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U.S. Border Patrol Agent Mesa, standing in the United States, shot and killed Sergio Adrian Hernandez Guereca, a fifteen-year-old Mexican citizen, standing in Mexico. Hernandez's family filed suit against the United States, Agent Mesa, and Agent Mesa's supervisors, alleging a number of claims. Hernandez was gathered with a group of friends on the Mexican side of a cement culvert that separated the two countries, playing a game that involved running up the incline of the culvert, touching the barbed-wire fence, and then running back down the incline. Agent Mesa fired at least two shots at Hernandez, one of which struck him in the face and killed him. The court affirmed the judgment in favor of the United States where the United States has not waived sovereign immunity for any of the claims asserted against it; affirmed the judgment of the district court in favor of the supervisors where plaintiffs failed to establish that either supervisor was personally responsible for the alleged constitutional violations; and reversed the judgment in favor of Agent Mesa, holding that, in light of Boumediene v. Bush, plaintiffs can assert a Fifth Amendment claim against the agent and that they have alleged sufficient facts to overcome qualified immunity. The court remanded for further proceedings. View "Hernandez, et al. v. United States, et al." on Justia Law

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Plaintiff and her husband filed suit against Wal-Mart after she fell while entering through an automatic sliding door at a Wal-Mart store and sustained injuries. At issue on appeal was whether the district court erred when it granted summary judgment to Wal-Mart based on its conclusion that the defect in the door threshold was not unreasonably dangerous as a matter of law. The court concluded that the district court erred in extending Mississippi's so-called "categorical exemption" to defective thresholds; the fact that the alleged defective condition changed suddenly and without warning was sufficient for a reasonable jury to conclude that it created an unreasonable or unusually dangerous condition; and plaintiffs point to evidence in the record indicating that Wal-Mart may not inspect the doors to ensure they are functioning correctly and that despite an internal policy calling for daily inspections, the assistant manager of the store had no knowledge of that policy. Accordingly, the court reversed the district court's grant of summary judgment to Wal-Mart and the dismissal of both plaintiffs' claims, remanding for further proceedings. View "Cox, et al. v. Wal-Mart Stores, Inc." on Justia Law

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Petitioners seek a writ of mandamus directing the district court to give them "crime victim" status under the Crime Victims' Rights Act (CVRA), 18 U.S.C. 3771. The court concluded that petitioners have a right to file their own motion to be declared crime victims under the CVRA, and it is clear and indisputable that no time bar prevented the district court from considering the novel arguments raised by pro bono counsel in its motion below. Issuance of a writ is appropriate where, as here, petitioners raised arguments previously raised by the Government during the time the Government represented their interests, and where petitioners have been able to retain counsel. View "In re: Jewell Allen, et al." on Justia Law

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Plaintiffs filed suit against Novartis in the Western District of Texas, then the case was transferred by the Judicial Panel on MDL to the Middle District of Tennessee. Plaintiffs' compliant alleged, inter alia, that Novartis failed to notify the public and physicians of the possibility of suffering osteonecrosis of the jaw until 2004 and failing to notify dental professionals until 2005. The MDL court granted partial summary judgment to Novartis and ruled that: (1) Texas law applied to plaintiffs' case, and (2) Tex. Civ. Prac. & Rem. Code 82.007(a) - which provides manufacturers a rebuttable presumption against liability for failing to warn - foreclosed plaintiffs' failure to warn claims. On remand, the district court granted summary judgment on plaintiffs' remaining claims. The court affirmed the denial of plaintiffs' Rule 56(d) and Rule 60(b) motions; the remand court properly applied the law of the case when it refused to reconsider the MDL court's rulings that section 82.007 applied to plaintiffs' failure to warn claims; and the remand court properly granted summary judgment on plaintiffs' warranty claims. Accordingly, the court affirmed the judgment of the district court. View "McKay, et al v. Novartis Pharmaceutical Corp." on Justia Law

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Appellant and his children brought tort claims against Placid in connection with the allegedly asbestos-related illness and death of his wife. On appeal, appellants challenged the district court's affirmance of the bankruptcy court's grant of Placid's motion for summary judgment. The court affirmed, concluding that appellants were unknown creditors whose pre-petition claims were discharged by Placid's constructive notice and that Placid's notice was not substantively deficient. The court has never required bar date notices to contain information about specific potential claims and neither the Bankruptcy Court nor Rules require bar date notices to apprise creditors of potential claims. The court held that because a bar date notice need not inform unknown claimants of the nature of their potential claims, Placid's notices were substantively sufficient to satisfy due process. View "Williams, Sr., et al. v. Placid Oil Co." on Justia Law

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Plaintiff filed various products liability and general tort claims against the Brand Defendants - who initially developed and received FDA approval for metoclopramide - and Generic Defendants - who manufactured and sold the product that plaintiff used. Plaintiff alleged that as a result of his prolonged use of the drug metoclopramide, he developed tardive dyskinesia. On appeal, plaintiff challenged the district court's dismissal of his claims against the Brand Defendants and grant of summary judgment to the Generic Defendants. The court held that plaintiff's products liability claims against the Generic Defendants were preempted under the holdings and reasoning of PLIVA, Inc. v. Mensing and Mutual Pharmaceutical Co., Inc. v. Bartlett, and that plaintiff failed to adequately plead any parallel claims. The court also held that plaintiff's claims against the Brand Defendants failed because plaintiff did not use the Brand Defendants' products and because Texas did not recognize a duty to a consumer who uses a competitor's products. Accordingly, the court affirmed the district court's dismissal of plaintiff's claims against the Generic Defendants and grant of summary judgment to the Brand Defendants. View "Eckhardt, et al. v. Qualitest Pharmaceuticals, Inc., et al." on Justia Law

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Plaintiff filed suit under the Federal Tort Claims Act (FTCA), 28 U.S.C. 2671, against Louisiana national guardsmen for alleged negligence arising from post-Hurricane Katrina activities undertaken while they were in federal-pay status. The Louisiana Homeland Security and Emergency Assistance and Disaster Act (the immunity statute), La. Rev. Stat. 29:735(A)(a), grants immunity to the state and its agents if they were engaged in emergency-preparedness activities. The court agreed with the district court that the guardsmen were engaged in emergency-preparedness activities and were therefore immune. In regards to plaintiff's alternative argument that the immunity statute is unconstitutional under a provision of the Louisiana Constitution, the court concluded that Louisiana's immunity statute was not unconstitutional as applied to the guardsmen who were put into the shoes of private individuals for purposes of the FTCA claim. Accordingly, the court affirmed the district court's dismissal for want of subject-matter jurisdiction. View "Alfonso, IV v. United States" on Justia Law