August 22, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • Jack v. Evonik Corp., 22-30526, appeal from E.D. La.
    • Smith, J. (Higginbotham, Smith, Engelhardt), toxic tort, jurisdiction, timeliness
    • Affirming denial of remand on the basis of improper joinder of nondiverse defendants; but reversing dismissal of wrongful death claim and vacating denial of leave to amend for fear of cancer claims, arising from defendants’ facility’s emissions of toxic levels of ehtylene oxide.
    • The Court affirmed the district court’s holding that the plaintiff had no possibility of recovery against the four Louisiana resident employee defendants of the facility owner. The Court held that the Louisiana defendants–site managers for the facility–did not personally have a legal duty to the plaintiff that was distinct from the facility owner’s duty. The Court also held that they could not be liable for “battery by omission” for failing to protect the residents from the toxic emissions. Accordingly, the Court upheld the denial of the plaintiff’s motion to remand, finding that the Louisiana defendants were improperly joined.
    • The Court held that the plaintiff did not act unreasonably in failing to inquire into the cause of wife’s breast cancer upon her diagnosis in 2000. “The question is whether a reasonable man with Jack’s education and experience should have suspected —without any indication to the contrary—that the cause was something out of the ordinary. Under the specific facts of this case, the answer is no. The doctrine of contra non valentem does not allow us to put ourselves, with the benefit of all our information and hindsight, into Jack’s shoes. Nor does it permit us to opine as to whether a fictional and infallible ‘reasonable person’ would have asked follow-up questions. Jack, who had no connections to the plant, had lived in the same small town all his life, was computer illiterate, and had no medical training, cannot be expected to hunt down answers to a problem when there was absolutely no suggestion, at the time of the diagnosis, that any out-of-the-ordinary problem existed.” The Court therefore reversed the district court’s holding that the plaintiff’s wrongful death claim was prescribed.
    • The Court held that the dismissal of the plaintiff’s fear of cancer claims with prejudice and without an opportunity to amend was an abuse of discretion, and vacated that judgment. The district court had found all of the plaintiff’s allegations sufficient except for his allegations of damages–an element as to which the defendants had not moved–and the Court held that denial of leave to amend would be to fault the plaintiff for not being clairvoyant. The Court also held that amendment would not be futile, in light of the newly articulated standard in Spencer v. Valero Refin. Meraux, L.L.C., 2022-00469, p. 16 (La. 1/27/23), 356 So. 3d 936, 950.
  • Pizza Hut, L.L.C. v. Pandya, 22-40555, appeal from E.D. Tex.
    • Willett, J. (Higginbotham, Southwick, Willett), breach of contract, jury
    • Affirming district court’s of a jury demand in trial of breach of contract claim between franchisee and franchisor, holding that the jury waiver in the parties’ agreement was not unknowing and involuntary.
    • Addressing the burden on the issue of a jury waiver, the Court held, “[O]nce a party establishes that a contractual waiver exists, the burden shifts to the party objecting to enforcement of a waiver to explain why the contractual waiver is invalid. That a contractual jury waiver involves a constitutional right does not change the analysis. After all, the Seventh Amendment jury right is not compulsory; a party must affirmatively request a jury trial.”
    • The Court held that the plaintiff failed to show that the jury-waiver itself was procured through fraud, agreeing that this is the appropriate standard, borrowing from cases regarding arbitration provisions.

Unpublished

  • U.S. v. Patel, 21-20568, appeal from S.D. Tex.
    • per curiam (Higginbotham, Stewart, Elrod), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Corral, 21-50067, appeal from W.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal, sentencing
    • Affirming imposition of “standard and mandatory conditions of supervision” as part of sentence for transporting illegal aliens for financial gain.
  • U.S. v. Wiley, 22-50557, appeal from W.D. Tex.
    • per curiam (Clement, Southwick, Higginson), habeas corpus
    • Denying motion for authorization to file a successive § 2255 petition.
  • Cunza-Pashaca v. Garland, 22-60472, petition for review of BIA order
    • per curiam (Wiener, Elrod, Engelhardt), immigration
    • Denying Salvadoran citizen’s petition for review of BIA order dismissing appeal of IJ’s denial of application for asylum, withholding of removal, and protection under the CAT.
  • Rojas v. Garland, 22-60477, petition for review of BIA order
    • per curiam (Willett, Duncan, Wilson), immigration
    • Denying Honduran citizens’ petition for review of BIA order affirming the denial of their application for asylum and withholding of removal.
  • U.S. v. Sanchez-Vega, 23-40036, appeal from S.D. Tex.
    • per curiam (Jolly, Engelhardt, Douglas), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.