The Appellate Record : Texas Appellate Lawyer & Attorney Kendall Gray for Fifth Circuit & Supreme Court Appeals

It has been awhile since we touched on the Fifth Circuit, but the MIghty Mighty Fifth neither slumbers nor sleeps. The Court has taken an ADA case en banc and has released two cases dealing with federal preemption as applied to medical devices.

On the ADA font, Frame v. City of Arlington involves the potential application of the Americans with Disabilities Act to a city and its sidewalks and curbs as well as how the statute of limitations applies to such claims.

• A panel of the Court first held (pdf) that the City’s curbs, sidewalks, and parking lots constitute a service, program, or activity within the meaning of Title II but that the district court had misallocated the burden of proof on limitations.
• On rehearing (pdf), the panel recognized that the case presented an issue of first impression and held that that sidewalks curbs, and parking lots are not Title II services, programs, or activities; thus, the plaintiffs lack a private right of action to enforce the regulations unless noncompliance has denied access to a service, program, or activity--if they survive the statute of limitations on which the district court had misallocated the burden of proof.
• Now (pdf) the en banc Court will consider the case after taking supplemental briefing.

Two different panels of the Court also issued decisions dealing with preemption of personal injury claims arising from medical devices:

• In Hughes v. Boston Scientific Corporation (pdf), the Court held that the Medical Device Amendments to the Federal Food, Drug, and Cosmetics Act preempted the plaintiffs’ claims concerning a HydroThermAblator used to treat excessive uterine bleeding. “Failure to warn” claims against the manufacturer were viable to the extent it was predicated on the failure to comply with federal statutes and regulations. Judge Davis wrote the Court’s opinion.
• In Funk v. Stryker Corporation (pdf), the Court affirmed dismissal of the plaintiff’s claims arising from his hip replacement because the claim, as pleaded, was preempted. There are additional procedural wrinkles. The Court did not consider a potential theory in the plaintiff’s second amended complaint because he had not appealed the order denying leave to file it. Likewise, the Court validated the district court’s use of judicial notice as being consistent with a dismissal on the pleadings. Judge Jolly wrote the Court’s opinion.  

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Well, it's been a quiet week in the United States Court of Appeals for the Fifth Circuit, my home Circuit. 

Actually, the Court has been handing down opinions with such regularity, the sister circuits are starting to take offense because the Mighty Fifth is making them look slothful by comparison.

Yesterday, the court handed down three published opinions, two of which might have interest to civil practitioners.  Very briefly:

• In Carmona v. Southwest Airlines Co. (pdf), the Court reversed the district court's decision to grant judgment as a matter of law on a flight attendant's ADA claim.  The flight attendant's psoriatic arthritis had caused the employee to miss work.  The jury had found in favor of the employee on his ADA claim but had rejected his claim under Title VII.  Judge Garwood wrote the opinion.
• And my personal favorite, Wells v. Smithkline Beecham (pdf).  The Plaintiff brought a products liability claim under Texas law and argued that Smithkline Beecham ought to have warned him that Requip would cause compulsive gambling, resulting in millions of dollars of gambling losses.  The Court affirmed the trial court's Daubert ruling finding that the expert testimony linking compulsive gambling to Requip was not up to snuff.  Judge Higginbotham wrote the opinion.   

 Daubert is one of my favs, so watch this space for some further analysis--unless the Mighty Fifth keeps up this pace, in which case there will be insufficient time!

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