Take the Fifth: April 19, 2021 opinions

Designated for publication

  • Phillips v. Sanofi US Services, Inc., 20-30405, appeal from E.D. La.
    • per curiam (King, Smith, Haynes), product liability
    • Affirming summary judgment dismissal of plaintiff’s failure-to-warn claim regarding permanent hair-loss from chemotherapy drug Taxotere, on finding that, under Louisiana law, there was a lack of causation because there was no genuine dispute that a warning of permanent–as opposed to temporary–hair-loss would not have affected the prescribing physician’s decision to prescribe Taxotere.
    • Under Louisiana law, “An adequate warning is one that ‘would lead an ordinary reasonable user … to contemplate the danger in’ the use of the product. Under the ‘learned intermediary doctrine,’ however, a patient’s physician acts as an informed intermediary between the drug company and the patient. Thus, a drug manufacturer has a duty to warn the prescribing physician, rather than the patient, of potential risks associated with the use of the drug. To prove causation in this context, a plaintiff must show that a proper warning would have changed the decision of the [prescribing] physician, i.e. that but for the inadequate warning, the [prescribing] physician would not have used or prescribed the product.” (Internal quotation marks and citations omitted).
  • U.S. v. Naidoo, 20-60730, appeal from S.D. Miss.
    • per curiam (King, Smith, Haynes), criminal, sentencing
    • Vacating one of three counts of conviction of possession of child pornography, modifying district court’s judgment to impose only a $200 special assessment and a $10,000 assessment under the Justice for Victims of Trafficking Act, and affirming in all other respects.
    • The Court held that there was no abuse of discretion in the district court’s exclusion under FRE 403 of expert testimony that defendant had no predilections to pedophilia on the basis of jury confusion. “[W]here the only issue is whether a defendant knowingly possessed child pornography, expert testimony on a defendant’s sexuality, though possessing some probative value, has diminished relevance.” (Internal quotation marks and citation omitted).
    • The Court held the district court did not abuse its discretion in admitting images and video from the child pornography seized from defendant’s hard drives and devices, even though he offered to stipulate that the files contained child pornography, because “a defendant’s stipulation does not have the same evidentiary value as actually seeing the particular explicit conduct of the specific minors.” (Internal quotation marks and citation omitted).
    • The Court also held there was no abuse of discretion in the admission of written narratives downloaded by defendant depicting incestuous activities between children and adults. The Court also held that the district court did not err in instructing the jury regarding “similar acts” evidence with regard to the use of these written narratives.
    • The Court held that a count of the indictment regarding possession of a hard drive “on or about” July 17, 2015, was adequately explained to the jury to cover possession in December 2015. However, the Court held that that count, which alleged possession of a hard drive, overlapped in time a count regarding possession of a different hard drive, and, “[p]ut simply, each separate SD card containing offending images is not a distinct allowable unit of prosecution under § 2252(a)(4)(B).” Accordingly, the Court held that the two counts were impermissibly duplicative. Because the district court had expressed that the length of the concurrent sentences for each count would have been the same regardless of the number of counts, the Court remedies the duplicative counts by modifying the fine and assessment, and not remanding for resentencing.

Unpublished

  • Hillman v. Jenkins, 18-51041, appeal from W.D. Tex.
    • per curiam (Haynes, Willett, Ho), prisoner suit
    • Affirming dismissal of prisoner’s § 1983 suit.
  • U.S. v. Williams, 19-10504, appeal from N.D. Tex.
    • per curiam (Jones, Haynes, Ho), criminal, First Step Act
    • Affirming denial of motion for sentence reduction under the First Step Act.
  • Ouedraogo v. Garland, 19-60227, petition for review of BIA order
    • per curiam (Clement, Higginson, Engelhardt), immigration
    • Denying petition by citizen of Burkina Faso for review of BIA order dismissing his appeal from the termination of his asylum status and the denial of his applications for asylum, withholding of removal, protection under the Convention Against Torture (CAT), adjustment of status and waiver of inadmissibility, and voluntary departure.
  • Singh v. Garland, 19-60738, petition for review of BIA order
    • per curiam (Haynes, Willett, Ho), immigration
    • Denying Indian citizen’s petition for review of BIA approval of his order of removal.
  • U.S. v. Mead, 20-10277, appeal from N.D. Tex.
    • per curiam (Jones, Clement, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Gallegos, 20-10330, appeal from N.D. Tex.
    • per curiam (King, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Latham, 20-10951, appeal from N.D. Tex.
    • per curiam (Davis, Elrod, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Paschal, 20-11056, appeal from N.D. Tex.
    • per curiam (King, Smith, Wilson), criminal, supervised release
    • Affirming conditions of supervised release prohibiting loitering near places where children congregate, on conviction for possession of child pornography.
  • Landry v. Laborde-Lahoz, 20-20365, appeal from S.D. Tex.
    • per curiam (Davis, Stewart, Dennis), municipal liability, Americans with Disabilities Act, wrongful death
    • Affirming summary judgment dismissal of mother’s claims arising from death of her son while in custody.
  • Ayissi v. Kroger Texas, LP, 20-20652, appeal from S.D. Tex.
    • per curiam (Higginbotham, Jones, Costa), Title VII, Americans with Disabilities Act, res judicata
    • Affirming dismissal of Title VII and ADA claims on res judicata grounds.
  • Jimenez v. U.S., 20-30440, appeal from W.D. La.
    • per curiam (Dennis, Southwick, Engelhardt), prisoner suit, COVID-19
    • Dismissing as frivolous appeal from dismissal of prisoner’s § 1915 suit to compel release from prison under the CARES Act for COVID-19 purposes.
  • U.S. v. Kirkendoll, 20-30566, appeal from W.D. La.
    • per curiam (Smith, Stewart, Higginson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Combs v. ExxonMobil Corp., 20-30733, appeal from M.D. La.
    • per curiam (Davis, Stewart, Dennis), employment discrimination
    • Affirming dismissal of plaintiff’s employment discrimination claims.
  • U.S. v. Suazo, 20-40636, appeal from E.D. Tex.
    • per curiam (Dennis, Costa, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Pujols, 20-50634, appeal from W.D. Tex.
    • per curiam (Davis, Elrod, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Orr, 20-60558, appeal from N.D. Miss.
    • per curiam (Davis, Stewart, Dennis), criminal, First Step Act
    • Affirming denial of motion for resentencing under the First Step Act.