November 16, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • Torrey v. Infectious Diseases Society of America, 22-40728, appeal from E.D. Tex.
    • Duncan, J. (Jones, Stewart, Duncan), personal tort
    • Affirming dismissal of claims by plaintiffs who suffer from chronic Lyme disease against peer-reviewed medical journal arising from article published regarding new proposed treatment of Lyme disease; plaintiffs alleged that the article cast doubt on how to treat chronic Lyme disease and even whether the disease exists, and the district court held that “the statements at issue were non-actionable medical opinions, not factual assertions that could support a claim for fraudulent or negligent misrepresentation.”
    • The Court examined the challenged statements in detail and held, “On their face, however, these statements are medical opinions. In this context (a scientific debate over treatment options for persistent Lyme symptoms), to say that evidence is not ‘convincing’ or that some treatment is ‘not recommended’ is plainly to express a medical opinion. Just because Plaintiffs disagree with those opinions does not mean that IDSA is somehow liable because their doctors or insurance providers found the opinions persuasive.”
  • James v. Hegar, 22-50828, appeal from W.D. Tex.
    • King, J. (King, Willett, Douglas), takings, sovereign immunity, standing
    • Reversing denial of sovereign immunity on plaintiffs’ claims that Texas officials violated the takings and due process clauses of the constitution in administration of Texas’s Unclaimed Property Act, and remanding with instructions to dismiss prospective claims for lack of standing.
    • The Court held that it could examine standing on appeal, with regard to whether the plaintiffs had standing for their claims for prospective injunctive relief–and affirmed that the named plaintiffs must have such standing, regardless of whether absent class members would have that standing. The Court then held that the named plaintiffs’ allegations of past taking were insufficient to create standing for prospective relief. “Plaintiffs here have only alleged that they were injured by past takings; they allege no facts indicating that another taking of their property is imminent or certainly impending.”
    • Likewise, the Court held that the allegations of purely past takings were insufficient to allege ongoing violations, and that the plaintiffs’ claims, therefore, could not fit within the Ex parte Young exception to sovereign immunity.
  • Lartigue v. Northside Independent School District, 22-50854, appeal from W.D. Tex.
    • Higginbotham, J. (Higginbotham, Smith, Elrod), Smith, J., dissenting; Americans with Disabilities Act, Individuals with Disabilities in Education Act, res judicata
    • Vacating summary judgment in favor of school district on plaintiff’s ADA claim for failure to make accommodations for hearing impairment, rejecting district court’s interpretation of the IDEA exhaustion requirement, and remanding for further proceedings.
    • The Court synthesized the current state of the overlapping analyses under the ADA and IDEA: “Putting together the text of the IDEA, the relevant precedents (Fry and Perez), and Congress’s explicit rebuke of Smith, the current state of the law is as follows: in a suit against a public school for alleged violations of the ADA or other similar anti-discrimination statutes, the court should first assess whether the gravamen of the complaint concerns the denial of a FAPE or, instead, is based on disability discrimination. If the complaint does not concern the denial of a FAPE, then the plaintiff need not got through the IDEA’s administrative hurdles. On the other hand, if the complaint is predicated on a FAPE denial, then the court must then ask what relief is sought. If the relief sought is not one that the IDEA can provide (such as compensatory damages), then, again, the plaintiff need not go through the IDEA’s administrative hurdles. But if the relief sought is of the type that the IDEA offers, then the plaintiff must fully exhaust the administrative processes as required by § 1415(l).” (Footnotes omitted).
    • The Court held that, because the plaintiff did exhaust the remedies under IDEA, even though the gravamen of her claim was the denial of FAPE, she did still have a standalone ADA claim because she sought a remedy (compensatory damages) that the IDEA did not provide.
    • Judge Smith dissented. He would have affirmed on the alternative ground of collateral estoppel, holding that the grounds of her ADA claim were already litigated and rejected in the denial of her IDEA claim.

Unpublished

  • U.S. v. McAbee, 22-60565, appeal from S.D. Miss.
    • per curiam (Dennis, Engelhardt, Oldham), Dennis, J., dissenting in part, criminal, sentencing, Armed Career Criminals Act
    • Vacating 15-year sentence for being a felon in possession of a firearm and remanding to district court for findings under the ACCA.
    • Judge Dennis dissented in part. He would remand for resentencing without instructions under the ACCA.
  • McNeal v. City of Katy, 23-20054, appeal from S.D. Tex.
    • per curiam (Jones, Barksdale, Elrod), qualified immunity
    • Affirming summary judgment in favor of officer defendants on qualified immunity grounds.
  • U.S. v. Rodriguez, 23-50395, appeal from W.D. Tex.
    • per curiam (Wiener, Stewart, Douglas), criminal, sentencing
    • Affirming sentence on conviction of possession with intent to distribute 500 grams or more of methamphetamine, and denial of application of safety valve reduction.
  • Hernandez-Ramos v. Garland, 23-60188, petition for review of BIA order
    • per curiam (Barksdale, Engelhardt, Wilson), immigration
    • Denying Salvadoran citizen’s petition for review of BIA order upholding the denial of her application for asylum; withholding of removal; and protection under the Convention Against Torture.