October 27, 2026, opinions

Posted on by tadbartlett

Designated for publication

  • DuFour v. BP Exploration & Production, Inc., 23-60361, appeal from S.D. Miss.
    • Richman, J. (Richman, Oldham, Ramirez) (oral argument withdrawn), Oldham, J., dissenting; maritime law, expert witness, toxic tort
    • Affirming summary judgment for defendant in maritime toxic tort arising from Deepwater Horizon disaster.
    • Richard DuFour, Jr. worked nearly three years as a cleanup worker following the 2010 Deepwater Horizon oil spill in Pascagoula, Mississippi, where he was exposed to crude oil and chemical dispersants through inhalation and direct contact. He sued BP under the Back-End Litigation Option (BELO) of the Deepwater Horizon Medical Settlement Agreement, alleging the exposure caused chronic worsening of his preexisting asthma. DuFour proffered two causation experts—Dr. Michael Freeman, an epidemiologist who relied on scientific studies including the “Lawrence Study” of over 24,000 cleanup workers, and Dr. Shawn French, a treating physician. The district court excluded both experts’ testimony, denied DuFour’s request for a live Daubert hearing, and granted summary judgment to BP.
    • At issue on appeal was (1) whether maritime toxic tort causation principles—requiring proof of both general and specific causation through qualified expert testimony—apply under general maritime law in BELO cases; (2) whether the district court abused its discretion in declining to hold a Daubert hearing; and (3) whether the district court abused its discretion in excluding the testimony of Dr. Freeman and Dr. French under Federal Rule of Evidence 702 and Daubert.
    • The Fifth Circuit held that widely accepted toxic tort causation principles—requiring expert proof of both general and specific causation—apply as a rule of maritime law in cases like this one. The court found no abuse of discretion in the district court’s decision to forgo a Daubert hearing or in its exclusion of both experts.
    • The court concluded that “there is either (1) ‘a body of judicial decisions’ that ‘suffice’ to establish the maritime rule that causation principles that have been applied in certain types of non-maritime toxic tort cases for decades apply under maritime law in cases like the present one, or (2) at least in this circuit, as well as the Second and Eleventh Circuits, federal courts have created that maritime rule.” The court relied on Great Lakes Insurance SE v. Raiders Retreat Realty Co., 601 U.S. 65 (2024), for the principle that federal courts possess authority to create and apply maritime law.
    • On Dr. Freeman, the district court found—and the Fifth Circuit agreed—that the Lawrence Study was fundamentally mismatched with DuFour’s claim: the study excluded individuals with preexisting asthma (like DuFour), measured the risk of developing asthma rather than the worsening of preexisting asthma, and its results were “largely attenuated” when self-reported wheezing was excluded from the definition of asthma. As the court put it, Dr. Freeman’s “leap from data showing an increased chance of respiratory symptoms based on duration and frequency of exposure to a conclusion” about DuFour’s asthma worsening “constitutes ipse dixit testimony and leaves too great of an analytical gap between the data and his causation opinion.”
    • On Dr. French, the district court excluded his causation testimony because he offered no written report, lacked demonstrated qualifications in the specific chemical exposures at issue, admitted “a lack of knowledge concerning substances to which Du[F]our attributes his injuries,” and “fail[ed] to engage in any research as to what might have caused Du[F]our’s asthma to worsen.” His reliance on temporal connection alone was not a reliable methodology under Daubert.
    • Judge Oldham dissented, contending that DuFour should not be “poured out of court.” His dissent raised two interrelated problems: the Daubert standard and unresolved choice-of-law ambiguity. He argued the district court “nitpicked” the expert reports, that neither the majority nor BP cited “any case from any court applying any substantive law that ever held an expert cannot rely on scientific studies unless the plaintiff himself qualified as a subject of the study,” and emphasized that the Lawrence Study’s p-value was less than 0.0001—meaning “if there were no association between cleanup work and asthma, the probability of observing results this extreme was less than one in ten thousand.” In closing, he wrote: “Striking that as ‘ipse dixit’ in a case involving a Deepwater Horizon cleanup worker . . . makes as much sense as striking the report for using a disfavored font.”
    • Judge Oldham also contended that the substantive law governing DuFour’s tort claim was never identified, noting that the operative complaint invoked both diversity and admiralty jurisdiction, and “the plaintiff’s (and the majority’s) invocation of admiralty jurisdiction does not answer the question” of whose law applies. He wrote: “We cannot uphold the district court’s Daubert ruling without first identifying the relevant substantive law” because “the substantive law governing a tort plaintiff’s suit affects the Daubert analysis.”
  • Stramaski v. Lawley, 25-20348, appeal from S.D. Tex.
    • Willett, J. (Willett, Engelhardt, Douglas) (oral argument), qualified immunity, Fair Labor Standards Act
    • Affirming denial of qualified immunity to public official on FLSA claim of untimely pay.
    • Eva Stramaski was an academic advisor at Texas A&M University. After returning from medical leave, she was told her paycheck might be late and insisted on timely payment; the pay arrived on time. Her supervisor, Mark Lawley, called her “aggressive” about the pay issue, sent her home, gave her a “coaching letter” alleging performance problems, and fired her a few days later. Stramaski sued Lawley in his individual capacity under the Fair Labor Standards Act (FLSA), alleging he retaliated against her for asserting her right to timely pay. In a prior appeal (Stramaski I), the Fifth Circuit affirmed that sovereign immunity did not bar the suit but left the question of qualified immunity for remand. On remand, the district court held qualified immunity was unavailable; Lawley appealed again.
    • At issue on appeal was whether a public official may invoke qualified immunity as a defense to an individual-capacity FLSA retaliation claim—a question of first impression in the Fifth Circuit.
    • The court applied the two-prong test from Wyatt v. Cole, 504 U.S. 158 (1992), which permits a court to infer an unwritten immunity defense only if it is (1) “so firmly rooted in the common law” and (2) “supported by such strong policy reasons” that Congress would have explicitly abolished it had it intended to do so.
    • On the first prong, the court identified retaliatory discharge as the closest common-law analogue to Stramaski’s claim and found that, at common law, malice or bad faith defeated any official immunity. Surveying nineteenth-century treatises and Supreme Court precedent, the court noted that Wilkes v. Dinsman (1849) protected only “mere errors of judgment” and not conduct marked by “malice, cruelty . . . ill-will, a depraved disposition, or vindictive feeling”; Mechem’s 1890 treatise recognized discretionary-act immunity for school officials but “not if they acted ‘wilfully or maliciously'”; and Cooley’s treatise denied the privilege when an officer acted from an “improper or wrongful motive.” As the magistrate judge put it: “Lawley wants to be able to point to any immunity available for a public official and then graft on the modern-day qualified immunity, even though the common law of the relevant time period would not have permitted a public official to escape answering for the conduct alleged here—intentional retaliation.”
    • On the second prong, the court held that allowing qualified immunity for FLSA retaliation claims would undermine the Act’s anti-retaliation protection, citing the Fifth Circuit’s prior holding in Samuel v. Holmes that qualified immunity was unavailable under the False Claims Act’s whistleblower provision because immunity “would hardly spur reluctant employees to step forward.” The court emphasized: “The FLSA doesn’t stand in the way of lawful hiring, firing, or discipline. It forbids retaliation against employees who assert their rights under the Act. Immunizing such actions would thwart the very complaints that § 215(a)(3) protects.”
    • The court also left open two additional issues: whether the FLSA’s own good-faith provisions in §§ 259 and 260 independently foreclose qualified immunity, and the earlier Stramaski I ruling on clearly established law, which was reached only on the assumption that qualified immunity applied.

Unpublished decisions

  • Liberty Mutual Fire Insurance Co. v. North Tarrant Infrastructure, L.L.C., 25-10725, appeal from N.D. Tex.
    • per curiam (Smith, Higginson; decided on quorum because Judge Wiener was unable to participate in decision) (oral argument), insurance
    • Affirming summary judgment for insurer on coverage arising from large car pile-up.
    • At issue on appeal was whether an insurer owed a duty to defend its insured construction companies in lawsuits arising from a 130-vehicle pileup on I-35W in Fort Worth, Texas, in February 2021. The central question was whether, under Texas’s “eight-corners rule,” the underlying plaintiffs’ petitions alleged bodily injury “arising out of” the defendants’ completed construction work on a segment of the highway, or instead alleged failures in maintenance and operation of the roadway years after construction was completed.
    • Even accepting the defendants’ own interpretation of the policy, none of the underlying petitions alleged bodily injury arising out of the defendants’ construction work. The allegations concerned failures to maintain and operate the roadway—duties unrelated to the defendants—and the construction site was merely the situs of the accident. The causal connection to defendants’ completed work was “too remote to invoke coverage.”
  • Moriano-Ospina v. Blanche, 25-60430, petition for review of BIA order
    • per curiam (Richman, Higginson, Douglas) (oral argument withdrawn), immigration
    • Denying in part and dismissing in part petition to review BIA denial of motion to reopen removal proceedings.
    • At issue on petition was (1) whether the BIA abused its discretion in denying the petitioner’s motion to reopen removal proceedings, where the petitioner argued equitable tolling based on his young age at the time of his removal order and his lack of knowledge about opportunities to reopen; and (2) whether the court had jurisdiction to review the BIA’s refusal to reopen proceedings sua sponte.
    • On the equitable-tolling issue, the court found no abuse of discretion: the petitioner, who was 15 when his removal order issued in 2011, offered no detail explaining how his young age prevented him from filing for fourteen years, and his general ignorance of the law did not justify equitable tolling. On the sua sponte issue, the court dismissed for lack of jurisdiction, holding that the petitioner failed to demonstrate that any narrow exception (legal error or constitutional error) applied.
  • Smith v. Evans, 26-10034, appeal from N.D. Tex.
    • per curiam (Davis, Richman, Oldham) (no oral argument), voluntary dismissal
    • Affirming dismissal of pro se complaint.
    • At issue on appeal was whether a pro se plaintiff’s filing of a motion to dismiss—before any defendant had appeared—constituted a self-effectuating voluntary dismissal under Federal Rule of Civil Procedure 41(a)(1)(A)(i), and whether the “two-dismissal rule” of Rule 41(a)(1)(B) applied because the plaintiff had previously dismissed a related federal action against the same defendants based on the same claims.
    • The court held that the district court erred in dismissing on immunity grounds because the plaintiff’s filing was a valid Rule 41(a)(1)(A)(i) notice of voluntary dismissal. However, because the plaintiff had already filed a Rule 41(a)(1)(A)(i) dismissal of a prior action based on the same claims, the second dismissal operated as an adjudication on the merits under Rule 41(a)(1)(B). The court modified the judgment to reflect dismissal under that rule and affirmed.
  • Gunter v. Exxon Mobil, 26-20328, appeal from S.D. Tex.
    • per curiam (Clement, Haynes, Ramirez) (no oral argument), civil
    • Summary affirmance of plaintiff’s suit under Rule 47.6, with no description of case or issues on appeal.
  • Moses v. Sylvia, 26-40118, appeal from S.D. Tex.
    • per curiam (Higginson, Willett, Oldham) (no oral argument), IFP, Americans with Disabilities Act
    • Dismissing as frivolous appeal from dismissal for failure to serve defendants.
    • At issue on appeal was whether the appellant was entitled to proceed in forma pauperis on appeal from a dismissal without prejudice for failure to serve defendants under Federal Rule of Civil Procedure 4(c)(1). The court also addressed the appellant’s contention that the court had violated the Americans with Disabilities Act by failing to provide accommodations.
    • Although the court found that the appellant was financially eligible to proceed IFP (contrary to the district court’s conclusion), she failed to challenge the actual basis for the district court’s dismissal of her complaint, which is “the same as if [she] had not appealed that judgment.” Her ADA-related requests did not give rise to a nonfrivolous appellate issue.
  • United States v. Yupa-Yupa, 26-50063, appeal from W.D. Tex.
    • per curiam (Stewart, Richman, Higginson) (no oral argument), criminal, guilty plea
    • Affirming guilty plea conviction of illegal reentry.
    • At issue on appeal was whether the district court committed plain error during the Rule 11 plea colloquy in a prosecution for illegal reentry under 8 U.S.C. § 1326. The defendant argued the court failed to ensure he understood the nature of the offense—specifically, the “free from official restraint” element—and that the factual basis was insufficient to support his guilty plea.
    • Reviewing for plain error because the issue was not raised below, the court found no clear or obvious error. The defendant was advised of the correct elements and admitted to acts corresponding to those elements. He cited no binding authority requiring more from a Rule 11 colloquy, and his failure to show a clear or obvious error under existing law was dispositive.
  • Reyna v. Social Security Administration, 26-50364, appeal from W.D. Tex.
    • per curiam (King, Higginson, Douglas) (no oral argument), social security
    • Affirming dismissal of claim for withholding of Medicare premiums.
    • At issue on appeal was whether the district court abused its discretion in dismissing with prejudice the plaintiff’s petition to perpetuate testimony under Federal Rule of Civil Procedure 27(a) as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). The plaintiff—a prolific pro se filer who filed at least twenty-four lawsuits in Texas federal courts between June 2025 and May 2026—argued the district court failed to conduct de novo review, erred in dismissing with prejudice, and did not address his Medicare premium-withholding claim.
    • The record showed the district court did conduct de novo review. The petition failed to satisfy Rule 27(a) requirements—the plaintiff did not identify deponents or show why he could not presently file suit—so dismissal was proper. Dismissal with prejudice was not an abuse of discretion. The Medicare claim was raised for the first time on appeal and thus was not reviewable.
  • Soto-Fierros v. Blanche, 26-60093, petition for review BIA order
    • per curiam (Davis, Richman, Oldham) (no oral argument), immigration
    • Denying petition for review of BIA order denying motion to reconsider summary dismissal of appeal.
    • At issue on petition was whether the BIA abused its discretion in denying the petitioner’s motion to reconsider the BIA’s summary dismissal of her appeal as untimely. The petitioner argued equitable tolling, contending that an extraordinary circumstance prevented her from timely noticing her appeal.
    • The court found no extraordinary circumstance: counsel’s decision to bypass the BIA’s electronic-filing requirement and attempt a paper filing was a “self-inflicted misstep, not an extraordinary circumstance outside her control.” Additionally, a 15-month delay by counsel to confirm whether the appeal had been filed cut against a finding of diligence. The BIA did not abuse its discretion.
  • Reyes Rodriguez v. Blanche, 26-60098, petition for review of BIA order
    • per curiam (Higginbotham, Jones, Oldham) (no oral argument), immigration
    • Denying petition for review of BIA upholding of denial of application for cancelation of removal.
    • At issue on petition was whether the BIA erred in upholding the denial of the petitioner’s application for cancellation of removal. The petitioner, a native and citizen of Mexico, argued that his removal would cause “exceptional and extremely unusual hardship” for his U.S.-citizen wife and children, particularly his son who has ADHD and requires special services.
    • The court noted that under 8 U.S.C. § 1252(a)(2)(B)(i), it lacks jurisdiction to review the factual findings underlying the hardship determination. To the extent the petitioner challenged those factual findings, they were unreviewable. To the extent he argued the established facts satisfy the hardship standard (a reviewable mixed question of law and fact under Wilkinson v. Garland), the argument was unpersuasive. The record also belied the petitioner’s claim that the agency failed to consider the hardship evidence in the aggregate.