February 10, 2022, opinions

Designated for publication

  • Earnest v. Sanofi U.S. Services, Inc., 20-30184, appeal from E.D. La.
    • Wilson, J. (Ho, Oldham, Wilson), products liability, expert witness
    • Reversing district court’s judgment in favor of manufacturer of chemotherapy drug in products liability case arising from allegations of permanent hair loss, on basis that the district court erroneously allowed defendant to impermissibly sought to cloak that “quasi-expert testimony” of the defendant’s designated corporate representative as lay witness testimony and then used an expert witness to parrot that impermissible expert testimony; and remanding for new trial.
    • The defendant’s corporate representative, presented as a 30(b)(6) fact witness, testified to his conclusions about the prevalence of permanent hair loss in clinical trials. Relying wholly on that analysis, the defendant’s designated expert concluded that permanent hair loss “was an outlier risk of the drug regimen.”
    • The Court held that the admission of the opinion testimony by the 30(b)(6) representative was error. “[W]e are persuaded that the district court erred by admitting Dr. Kopreski’s testimony under Rule 701, and the error was not harmless because Earnest’s substantial rights were prejudiced by admission of the testimony. Sanofi’s stratagem of skating the line between Rules 701 and 702 with Dr. Kopreski’s testimony—borne out by the record and essentially confirmed at oral argument—reflects a calculated and troubling end-run around Rule 702 and Daubert. … While parts of Dr. Kopreski’s testimony fall within the parameters of Rule 701, he also strayed beyond ‘facts, . . . subjective beliefs[,] and opinions,’ GE Ionics, Inc., 469 F.3d at 433, within either his personal knowledge or his capacity as Sanofi’s corporate designee. He testified regarding highly specialized and technical information related to Taxotere, the TAX316 study, and drug studies in general. During its examination, Sanofi transparently sought Dr. Kopreski’s opinions about the TAX316 data ‘as a board certified oncologist,’ as much as a former Sanofi employee. And Dr. Kopreski’s testimony is littered with his interpretation and analysis of theTAX316 study data, which he prepared during litigation in response to Earnest’s Rule 30(b)(6) deposition notice.”
    • The Court then held that the expert’s testimony was fatally tainted by his reliance on the 30(b)(6) representative’s impermissible expert opinion. “[F]or his linchpin conclusion about causation, Dr. Glaspy specifically acknowledged his dependence on Dr. Kopreski’s ‘re-analysis’ of the TAX316 data, going so far as to say that ‘if the data that’s in [Dr. Kopreski’s] table is incorrect, then none of my opinions are valid. Because Dr. Kopreski’s ‘re-analysis’ data amounted to improper expert opinion, Dr. Glaspy’s opinion as to causation based on Dr. Kopreski’s analysis was likewise tainted.”
  • Moon v. Olivarez, 21-50193, appeal from W.D. Tex.
    • Jolly, J. (Jolly, Higginson, Engelhardt), false imprisonment
    • Affirming summary judgment dismissal of false imprisonment claim against detectives involved in investigation of plaintiff that resulted in his conviction for a rape that he did not commit, on basis that detectives did not willfully detain the plaintiff.
    • The Court held that the willful detention element of Texas false imprisonment “can be satisfied, even when the defendant does not participate in the detention, if the defendant engages in ‘conduct that is intended to cause one to be detained, and in fact causes the detention.’ Texas courts have referred to this causation standard as ‘instigation’ of the false imprisonment.” Reviewing the evidence, the Court held that neither defendant could be found to have instigated the plaintiff’s arrest.

Unpublished

  • U.S. v. Powell, 18-11050, appeal from N.D. Tex.
    • per curiam (King, Graves, Willett), criminal, sentencing, Armed Career Criminal Act
    • On remand from the U.S. Supreme Court for consideration under Borden v. United States, 141 S. Ct. 1817, 1821–22, 1825 (2021), vacating district court’s sentencing of defendant on conviction of being a felon in possession of a firearm without calculating the ACCA enhancement based on predicate offenses of burglary and robbery.
  • Poff v. Smith, 20-20647, appeal from S.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), habeas corpus
    • Affirming dismissal of § 2241 petition as moot.
  • U.S. v. Johnson, 21-10174, appeal from N.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Kemp, 21-10264, appeal from N.D. Tex.
    • per curiam (King, Costa, Ho), criminal, First Step Act
    • Vacating district court’s denial of motion for compassionate release under the First Step Act, and remanding for consideration of United States v. Shkambi, 993 F.3d 388 (5th Cir. 2021).
  • Green v. Alief Independent School District, 21-20473, appeal from S.D. Tex.
    • per curiam (Smith, Stewart, Graves), employment discrimination, res judicata
    • Affirming dismissal on res judicata grounds of plaintiff’s claims of racial discrimination and retaliation against former employer.
  • U.S. v. Owings, 21-30279, appeal from W.D. La.
    • per curiam (Smith, Stewart, Graves), criminal
    • Affirming conviction of theft of government property and concealing an event affecting a right to certain social security benefits.
  • Ibenyenwa v. Wells, 21-40241, appeal from E.D. Tex.
    • per curiam (Southwick, Graves, Costa), prisoner suit
    • Dismissing as frivolous appeal from dismissal of § 1983 claims arising from administration of the prison law library.
  • U.S. v. Urias, 21-50631, appeal from W.D. Tex.
    • per curiam (King, Costa, Ho), criminal, sentencing
    • Affirming 126-month sentence on conviction of possession with intent to distribute methamphetamine.