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US Court of Appeals for the Fifth Circuit Opinions Turner v. GoAuto Insurance Docket: 22-30103 Opinion Date: May 2, 2022 Judge: Per Curiam Areas of Law: Civil Procedure, Insurance Law, Personal Injury Plaintiff filed a petition for damages in the 19th Judicial District Court in East Baton Rouge Parish. Plaintiff totaled his car in an accident and alleged that GoAuto, his car insurance carrier, paid less in policy benefits than his policy and Louisiana law required. GoAuto filed its notice of removal, Plaintiff received permission from the Louisiana court to amend his complaint again and, as accepted on appeal, filed the amended complaint. This amendment changed the definition of the class from class “residents of Louisiana” to class “citizens of Louisiana.” After removal, the parties filed several competing motions disputing which complaint controlled and the sufficiency of GoAuto’s notice of removal. The Fifth Circuit affirmed the district court’s order remanding the case to state court, finding that Defendant is a citizen of Louisiana and thus the suit lacks the minimal diversity necessary to vest a federal court with jurisdiction. The court declined Defendant’s request to disregard the Louisiana state court’s pre-removal procedural rulings applying Louisiana law and substituted its own Erie guesses at how a Louisiana court ought to rule on a motion to amend a pleading. Further, in regards to Defendant’s argument that it is plausible that some class members are not citizens of Louisiana, the court held that none of these individuals, assuming they had relocated to Colorado, Texas, or Florida before the filing of the complaint, qualify as citizens of Louisiana. Finally, the court held that Defendant points to nothing in the text of the statute that would bar Plaintiff’s class definition. Read Opinion
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Bill to prevent transgender women from participating in girls' sports moves forward
www.lsureveille.com/news/bill-to-prevent-transgender-women-from-participating-in-girls-sports-moves-forward/article_f64154de-cbf8-11ec-adf0-4729ea9ec98c.html Student discipline bill advanced by Louisiana House committee
www.houmatimes.com/news/student-discipline-bill-advanced-by-louisiana-house-committee/ Insurance Commissioner Donelon Releases Updated Hurricane Ida Data
www.houmatimes.com/news/insurance-commissioner-donelon-releases-updated-hurricane-ida-data/ Louisiana Supreme Court Opinions LaBauve, et al. v. Louisiana Medical Mutual Ins. Co., et al. Docket: 2021-C-00763 Opinion Date: April 13, 2022 Judge: Per Curiam Areas of Law: Civil Procedure, Medical Malpractice, Personal Injury This litigation arose from a medical malpractice suit brought by plaintiffs, individually and on behalf of their minor daughter, against Dr. Daryl Elias, Jr. and his insurer. Plaintiffs alleged Dr. Elias committed malpractice during the child’s delivery, causing a separated right shoulder and a broken clavicle. Plaintiffs also alleged the child suffered permanent injury when the five nerve roots of her brachial plexus were completely and partially avulsed from the spinal cord, causing her to lose the use of her right arm. At the conclusion of trial, a jury returned a verdict in favor of defendants, finding the treatment provided by Dr. Elias to the child did not fall below the applicable standard of care for an obstetrician gynecologist. The Louisiana Supreme Court granted certiorari in this case for the primary purpose of addressing two narrow issues: (1) whether any errors in the district court’s evidentiary rulings interdicted the jury’s fact-finding process; and (2) if so, whether the court of appeal erred in reviewing the record de novo. The court of appeal found the district court committed prejudicial legal error in excluding the child's treating orthopedic surgeon, Dr. Kozin’s testimony in part and permitting defendant's retained expert, Dr. Grimm, to testify. The Supreme Court found no error in the judgment of the court of appeal insofar as it reversed the district court’s ruling limiting Dr. Kozin from testifying as to the cause of the child’s injuries: "a review of Dr. Kozin’s excluded testimony reveals he did not render any opinions on whether Dr. Elias breached the standard of care or was otherwise negligent. Rather, he simply testified as to the cause of the child’s injury, explaining that based on his expertise, he was 'certain the force applied by the delivering physician led to this injury.'" The district court erred in restricting his testimony. However, the Supreme Court concluded the district court did not abuse its great discretion in finding Dr. Grimm’s testimony was admissible under the standards set forth in La. Code Evid. art. 702 and Daubert/Foret. The court of appeal erred in reversing the district court’s evidentiary ruling. Furthermore, the Court held the court of appeal abused its discretion by undertaking a de novo review of the record rather than remanding the case for a new trial. In all other respects, the judgment of the court of appeal was vacated, and the case was remanded to the district court for further proceedings. Read Opinion Louisiana Supreme Court Justice to speak at Nicholls Commencement Ceremony
www.lafourchegazette.com/news/louisiana-supreme-court-justice-to-speak-at-nicholls-commencement-ceremony/article_d5740288-c4aa-11ec-b680-5712bcd352fd.html Louisiana House passes bill that would end permit requirement for concealed carry of firearms
www.lafourchegazette.com/news/louisiana-house-passes-bill-that-would-end-permit-requirement-for-concealed-carry-of-firearms/article_bc8223b4-c576-11ec-a462-3f7baf14ec0d.html US Court of Appeals for the Fifth Circuit Opinions Solis v. Serrett Docket: 21-20256 Opinion Date: April 21, 2022 Judge: Engelhardt Areas of Law: Civil Rights, Constitutional Law Appellee sued officers asserting various Section 1983 claims including excessive force, unreasonable seizure due to an arrest without probable cause, malicious prosecution, violation of her First Amendment rights for arresting her in retaliation for filming the officers, and violation of her Fourteenth Amendment rights. The district court held that disputed issues of material fact barred summary judgment on the excessive force claim and that, viewing the facts in Appellee’s favor, the officers violated a clearly established right. The Fifth Circuit denied Appellee’s motion to dismiss, reversed the district court’s order denying Appellant’s motion for summary judgment, and remanded with instructions that Appellee’s claims be dismissed. The court analyzed the officers’ actions and found that their conduct was not so objectively unreasonable as to violate Appellee’s constitutional rights. First, Appellee’s minor injuries weigh in favor of finding qualified immunity. Second, qualified immunity can apply even when only one factor weighs against the plaintiff. Finally, it was reasonable of Appellants to believe that, in light of Appellee’s interjections, comments, resistance, and indignation, some degree of force would be necessary to subdue her. The court further held that even if the officers violated Appellee’s constitutional rights, the right was not clearly established at the time of the alleged violation. Read Opinion Edwards v. Oliver Docket: 21-10366 Opinion Date: April 19, 2022 Judge: Carolyn Dineen King Areas of Law: Government & Administrative Law, Personal Injury A fifteen-year-old boy was shot and killed by Defendant, a then-officer responding to a 911 call about possible underage drinking. The boy’s family and friends sued Defendant and the City of Balch Springs alleging excessive force. Later, Defendant was separately convicted of murder. The district court denied Defendant’s summary judgment motion claiming qualified immunity. On appeal, Defendant argued that the facts at the moment of the threat are undisputed and urged the court to exercise jurisdiction over the case on the issue of materiality. The court found that the resolution of this factual dispute is material because it affects both whether Defendant’s use of force was reasonable and whether the force he used violated clearly established law. The court found that if a jury accepts Plaintiffs’ version of the facts as true, particularly as to what occurred in the moments before Defendant shot at the car, the jury could conclude that the officers violated Plaintiffs’ clearly established right to be free from excessive force. Thus, because the factual dispute is material, the court ruled that it lacks jurisdiction to consider the propriety of the summary judgment denial. The court dismissed Defendant’s interlocutory appeal and remanded for further proceedings. Read Opinion BITCO Gen Ins v. Monroe Guar Ins Docket: 19-51012 Opinion Date: April 12, 2022 Judge: Higginbotham Areas of Law: Contracts, Insurance Law BITCO General Insurance Corporation (“BITCO”) and Monroe Guaranty Insurance Company (“Monroe”) issued general liability insurance policies to 5D Drilling & Pump Service Inc. (“5D”). A property owner sued 5D for breach of contract and negligence. BITCO sought a declaratory judgment that Monroe also owed a duty to defend 5D. The parties dispute whether any “property damage” alleged could have occurred during Monroe’s policy period. The magistrate found that damage must have occurred during a period when Monroe’s policy was in force. The court reasoned that under Texas law, courts determine whether an insurer’s duty to defend has been triggered by using the “eight corners” rule. The party seeking coverage has the initial burden of establishing that the underlying claims potentially state a cause of action. When pleadings in the underlying lawsuit have been amended, the court analyzes the duty to defend by examining the “latest, and only the latest, amended pleadings.” Typically, the eight-corners rule prevents courts from considering any extrinsic evidence. Texas law recognizes a limited exception to the eight-corners rule when it is impossible to discern whether coverage is potentially implicated and when the extrinsic evidence goes solely to a fundamental issue of coverage. Monroe contends that even if the owner’s pleading alleges damage within its policy period, it still has no duty to defend because all the damage falls within policy exclusions. The court found that Monroe cannot carry its burden because it cannot show that either exception unambiguously applies. Thus, the court affirmed the district court’s order. Read Opinion Commissioner Donelon Places Lighthouse Property Insurance Corporation Into Receivership
www.houmatimes.com/news/commissioner-donelon-places-lighthouse-property-insurance-corporation-into-receivership/ Seguin v. Remington Arms Docket: 17-30499 Opinion Date: April 8, 2022 Judge: Leslie Southwick Areas of Law: Personal Injury, Products Liability Plaintiff was injured while she, her father, and others were tracking a wounded deer at night in the woods. Her father’s Remington Model 710 rifle accidentally discharged and injured her. Plaintiff and her family members filed suit in the district court. At issue before the circuit court is whether the district court erred when it held that Section 60 of the LPLA did not bar her from bringing a claim under Section 56 of the LPLA, which is a general section applicable to design-defect claims. The LPLA “establishes the exclusive theories of liability for manufacturers for damage caused by their products.” LA. STAT. ANN. Sec. 9:2800.52. The court found is that Section 60(B) unambiguously bars design defect claims. Plaintiff argues that because Section 60(C) precludes claims against manufacturers for improper use of firearms, that part of the statute is superfluous if Section 60(B) had already precluded all non-Section 55 manufacturing-defect claims against manufacturers. The court found Section 60(C) precludes claims based on conduct by a broader category of actors than Section 60(B). Further, the court disagreed with plaintiff’s argument that Remington’s interpretation would render Section 60(D) Section 60(E) superfluous. Section 60(B) does not block all failure-to-warn claims but only those based on harm resulting from a shooting injury by a specific actor subset. Finally, the court found that the plain text leads to preventing a meaningful category of potential claims against the manufacturers of firearms. The court reversed and rendered judgment for defendant. Read Opinion Louisiana Senators Kennedy and Cassidy to Vote Against Judge Ketanji Brown Jackson’s Nomination
www.houmatimes.com/news/senators-kennedy-and-cassidy-to-vote-against-judge-ketanji-brown-jacksons-nomination/ U.S. House votes to decriminalize marijuana in federal law
lailluminator.com/2022/04/01/u-s-house-votes-to-decriminalize-marijuana-in-federal-law/ Proposed Legislation to Help US Businesses Hurt by Crawfish ‘Dumping’
neworleanscitybusiness.com/blog/2022/04/05/legislation-would-help-us-businesses-hurt-by-crawfish-dumping/ US Court of Appeals for the Fifth Circuit Opinions Defense Distributed v. Bruck Docket: 21-50327 Opinion Date: April 1, 2022 Judge: Edith H. Jones Areas of Law: Civil Procedure, Constitutional Law, Government & Administrative Law Appellants (“Defense Distributed”) have challenged publication restraints imposed by the U.S. State Department, federal courts, and the State of New Jersey (“NJ”) after appellants published the internet computer-assisted design (“CAD”) files for a single-round plastic pistol. Although Defense Distributed is still prevented from publishing, the CAD files it published remain available on many other websites. At issue in this combined appeal and motion for mandamus relief stems from a district court’s (“DC”) order severing the case and transferring it to a federal court in NJ. The court found that the Defense Distributed satisfied the first two conditions for mandamus relief. Further, the NJ Attorney General did not carry its burden to demonstrate that transfer is more appropriate than the plaintiffs’ choice of forum. The court concluded that the DC’s order severing and transferring the claims against the NJAG to the District of New Jersey was a clear abuse of discretion, giving rise to an appropriate exercise of the court’s mandamus power. Read Opinion US Court of Appeals for the Fifth Circuit Opinions United States v. Singletary Docket: 20-10977 Opinion Date: March 28, 2022 Judge: Stuart Kyle Duncan Areas of Law: Criminal Law The Fifth Circuit affirmed defendant's sentence for conspiring to possess firearms in furtherance of drug trafficking. The court concluded that the district court did not err in applying an enhancement under USSG 2K2.1(b)(6)(B) because defendant's crime of conviction was distinct from the crime used to support the application of the (b)(6)(B) enhancement. In this case, defendant was convicted for conspiring to possess guns (i.e., make straw purchases) to help drug dealers, but defendant's sentence was enhanced under (b)(6)(B) because the straw purchases were used to protect or aid in the drug trafficking activity of the distributors. Therefore, the other felony offense for (b)(6)(B) purposes was the drug dealing conspiracy of the distributors, which was distinct from defendant's. The court also concluded that the district court did not plainly err by applying both the section 2K2.1(b)(5) and (b)(6)(B) enhances as the district court did not apply the enhancements based on the same offense, but instead enhanced defendant's sentence to reflect his involvement in two distinct offenses. Read Opinion United States v. Mesquias Docket: 20-40869 Opinion Date: March 24, 2022 Judge: Gregg Costa Areas of Law: Criminal Law, White Collar Crime The Fifth Circuit affirmed defendants' convictions and sentences for multiple counts of health care fraud and conspiracy stemming from their involvement in a scheme to falsely certify that patients were eligible for home health or hospice services. The court concluded that sufficient evidence supports defendants' convictions for health care fraud and conspiracy to commit that fraud. The court rejected defendants' contention that the government offered no proof that they knew the patients were ineligible for home health and hospice, and that the government did not prove the ineligibility of the six patients whose claims were listed as the substantive fraud counts. Rather, the record shows that defendants were intimately involved with the fraud, and that the certifications for all six patients were either outright lies or based on fabricated medical records. The court also concluded that the district court properly calculated the loss amount when sentencing defendants. In this case, the district court found that defendants' fraud was pervasive and thus treated the entire amount that they billed to Medicare as the intended loss, enhancing defendants' offense levels by 24 points, resulting in an advisory Sentencing Guidelines range of life in prison pursuant to USSG 2B1.1. Read Opinion Louisiana may prohibit release of mug shots before conviction
lailluminator.com/2022/03/23/louisiana-may-prohibit-release-of-mug-shots-before-conviction/ US Court of Appeals for the Fifth Circuit Opinions United States v. Castro Docket: 18-10137 Opinion Date: March 17, 2022 Judge: Andrew S. Oldham Areas of Law: Criminal Law The Fifth Circuit denied a petition for rehearing, withdrew its previous opinion, and substituted the following opinion. The court vacated the certificate of appealability (COA) as invalid, as the parties concede, under 28 U.S.C. U.S.C. 2253(c)(2)–(3) because it fails to specify a constitutional issue. In this case, defendant seeks a valid COA under United States v. Davis, 139 S. Ct. 2319 (2019). The court concluded that defendant was not sentenced under the residual clause in 18 U.S.C. 924(c)(3)(B). Rather, he was sentenced under the elements clause in 924(c)(3)(A). The court explained that defendant's indictment, his stipulated factual resume, and his plea agreement all confirm that he was convicted of and sentenced for putting the lives of his victims in jeopardy by using a handgun. The court concluded that this easily satisfies the elements clause and renders section 924(c)'s residual clause and Davis irrelevant. Because defendant has not made a substantial showing of the denial of a constitutional right, the court could not grant a COA and dismissed for lack of jurisdiction. Read Opinion Lewis v. Hughs Docket: 20-50654 Opinion Date: March 16, 2022 Judge: Stuart Kyle Duncan Areas of Law: Civil Rights, Constitutional Law, Election Law The Fifth Circuit concluded that plaintiffs' action challenging the constitutionality of various provisions of the Texas Election Code regulating mail-in balloting is barred by sovereign immunity. The court concluded that the Secretary does not enforce the challenged provisions and thus the district court erred in finding the Secretary was a proper defendant under Ex parte Young, 209 U.S. 123 (1908). The court reversed the district court's judgment and remanded with instructions to dismiss plaintiffs' claims. Read Opinion Inside Louisiana's harshest juvenile lockup
www.nbcnews.com/news/us-news/louisiana-juvenile-detention-st-martinvillle-rcna19227 Bills filed in Louisiana legislature seek to expand state’s medical marijuana program
www.fox8live.com/2022/03/10/bills-filed-louisiana-legislature-seek-expand-states-medical-marijuana-program/ How should Louisiana employers handle medical marijuana use?
www.businessreport.com/business/how-should-louisiana-employers-handle-medical-marijuana-usage US Court of Appeals for the Fifth Circuit Opinions Wilson v. City of Bastrop Docket: 21-30204 Opinion Date: February 21, 2022 Judge: Stuart Kyle Duncan Areas of Law: Civil Rights, Constitutional Law, Criminal Law One of two reports of an armed confrontation at the Eden Apartments identified one perpetrator as “Thomas Johnson,” who was driving a red truck with rims. Officer Green responded and encountered a stationary red truck near an elementary school, which had been closed for months. When Green exited his car, Johnson stepped out holding a semiautomatic pistol with an extended magazine. His brother was driving. Johnson ran toward the school. As vehicles passed nearby, Green drew his weapon and yelled, “Drop the gun!” Johnson continued to run, Green fired at him. Green chased Johnson into an open field and continued to chase Johnson, ordering him to drop the gun and instructing onlookers to lie on the ground. Officer McKinney, at the opposite side of the field, saw Johnson outrunning Green. Johnson changed direction toward a neighborhood. Johnson ignored orders to stop. McKinney fired at Johnson, who continued to flee. Both officers gave chase, repeatedly ordering Johnson to stop and drop the gun. When in range, both officers shot. Johnson fell and dropped his gun. Johnson died on the scene. In a suit under 42 U.S.C. 1983, the court granted the officers summary judgment based on qualified immunity. The Fifth Circuit affirmed in part. The use of deadly force was not constitutionally excessive. The officers could have reasonably believed that Johnson threatened them and others with serious physical harm. Read Opinion |
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