We recently reported on the Sixth Circuit’s trends concerning arbitration, and generally these cases arise against a backdrop of a contractual arbitration provision that one party is seeking to enforce. In Knall Beverage Inc. v. Teamsters Local Union No. 293, the Sixth Circuit again ordered arbitration but did so in an unusual backdrop. Pursuant to the Multi-Employer Pension Plan Amendments Act, disputes about reallocation liability are subject to mandatory (statutory) arbitration. In this case, the plaintiffs initially commenced arbitrations to dispute the amount of reallocation liability assessed by trustees and later filed a civil proceeding in court. The district court ultimately dismissed the complaint as subject to arbitration, prompting this appeal. The Sixth Circuit wasted little time with these issues concluding: “The determination of whether of plaintiffs are subject to reallocation liability is however straightforwardly subject to mandatory arbitration by the act.” The Court accordingly rejected plaintiff’s “strained argument”, instead preferring to uphold Congress’ apparent desire to direct these types of disputes to mandatory arbitration. Although the Sixth Circuit has previously recognized certain circumstances in which the parties may skip the arbitration and proceed directly to federal court, this case did not fall within those confines as the Court declined the plaintiff’s invitation to create a new exception to the otherwise mandatory arbitration process. Squire Sanders’ Dave Alexander represented certain of the appellees in this appeal.
The Supreme Court has granted certiorari from the Sixth Circuit’s decision in Laborers District Council Construction Industry Pension Fund v. Omnicare, Inc. In that securities class action, the plaintiffs allege that statements from a 2005 registration statement that Omnicare’s agreements with drug companies were “legally and economically valid” had violated securities laws. Creating a split with other circuits, the Sixth Circuit held plaintiffs did not need to plead that Omnicare knowledge of falsity under Section 11. The panel held that Section 11 creates strict liability, and so held that the analysis in Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083 (1991), regarding Section 14(a), which requires scienter, did not apply to Section 11. Omnicare sought certiorari on the following question:
For purposes of a Section 11 claim [15 U.S.C. § 77k], may a plaintiff plead that a statement of opinion was “untrue” merely by alleging that the opinion itself was objectively wrong, as the Sixth Circuit has concluded, or must the plaintiff also allege that the statement was subjectively false – requiring allegations that the speaker’s actual opinion was different from the one expressed – as the Second, Third, and Ninth Circuits have held?
Securities lawyers everywhere will be following this case to see if Virginia Bankshares’ scienter requirement will apply to claims brought under Section 11.
Anthony Rorrer, a firefighter for the City of Stow, Ohio, was allegedly terminated because of a non-work-related accident that left Rorrer totally blind in his right eye and therefore with the disability of monocular vision. Rorrer brought suit in the U.S. District Court for the Northern District of Ohio under the Americans with Disabilities Act (“ADA”), but, following discovery, the district court granted summary judgment to Stow on all counts in Rorrer’s complaint. Earlier this week, in Rorrer v. City of Stow (6th Cir., Case No. 13-3272, Feb. 26, 2014) (PDF), a panel of the Sixth Circuit partially reversed the district court and also remanded to a different district judge for trial on the merits.
Remand to a new district judge is an unusual event, and the Rorrer opinion — written by Judge Donald, and joined in full by Judge Clay and District Judge Samuel H. Mays, Jr. of the Western District of Tennessee – suggests that the Sixth Circuit panel felt it important to “preserve ‘the appearance of justice.’” Even though it reversed on the issue of discrimination under the ADA, the panel did affirm the original judge’s grant of summary judgment against Rorrer regarding his retaliation claims against Stow. But in his appeal, Rorrer had alleged bias by the original judge based upon certain adverse discovery rulings. The panel affirmed the substance of at least some of those rulings on appeal. Yet, it expressed concern that certain of those rulings — in particular, rulings that lacked “any explanation or apparent rationale” and that later served as justification for striking certain declarations submitted by Rorrer on summary judgment — could potentially “raise the possibility of bias or the appearance or lack of impartiality.” The panel’s concern appears to have been amplified by the original judge’s statement that, should a reviewing court find that Rorrer’s declarations generated a genuine issue of material fact (and were therefore relevant at the summary judgment stage), the declarations should still be stricken for untimeliness. The panel found that statement “problematic” in light of the lower court’s discovery rulings and so remanded to a different judge for trial.
Along with the Second Circuit’s highly publicized removal of Southern District of New York District Judge Scheindlin last year in the New York City stop-and-frisk cases, Rorrer serves as a reminder that the standard imposed by 28 U.S.C. § 455(a) is a strict one: it is designed not only to avoid actual partiality but also the mere appearance of partiality.
The practice of certifying questions to state supreme courts is well established, and each state supreme court within the Sixth Circuit’s jurisdiction — Kentucky, Ohio, Michigan and Tennessee — accepts questions from federal courts. See Ky. Civ. R. 76.37; Ohio S. Ct. R. Prac. 5.04; Mich. Ct. R. 7.305; Tenn. S. Ct. R. 23. This blog has already briefly explored the factors that make it more or less likely for the Sixth Circuit to certify a question to a state supreme court, but the question arises as to how often the Sixth Circuit actually certifies questions to such courts. The present post addresses this question and provides a brief overview of Sixth Circuit practice over the previous five years.
Certain caveats are in order. The statistics and trends cited in this post are based on available online research in Lexis and Westlaw, as well as review of the secondary literature. Such an approach has clear limits. For one, requests for certification that were made separately from the litigants’ briefs and that were denied prior to argument may not be represented in the online databases. Although it is likely that those databases will contain most or all instances where litigants’ certification requests were granted by the Sixth Circuit, it is less certain that they contain opinions or orders where the Sixth Circuit denied certification requests or where a state supreme court subsequently rejected such a request. Even so, the following overview, even if not exhaustive, will hopefully remain useful for identifying broad trends.
Review of the electronic databases indicates that, over the last five years, Sixth Circuit panels have considered certifying questions on at least 27 occasions, granting certification in only 3 of them. The difficulty in obtaining certification is further emphasized by the fact that, of the 24 denials, 21 were unanimous — only in 3 cases did the dissenting judge argue that an issue should have been certified. A few other observations are of interest. In every case where the issue of certifying a question was raised, it was in a civil, not criminal, matter. No type of civil case was a standout, however; requests for certification occurred in all types of civil cases, ranging from torts, contracts and shareholder derivative actions to cases involving violation (or interpretation) of state statutes. Where requests were made, the distribution by state supreme court was almost even: there were 7 requests apiece to certify questions to the supreme courts of Kentucky, Ohio and Tennessee, and 4 requests to certify questions to the Michigan Supreme Court. (In addition, there were 2 requests — both denied — to certify to other state supreme courts, namely those of Georgia and Indiana.) Because the number of questions actually certified in this sample is so small, it is difficult to draw many conclusions. Yet, it is perhaps noteworthy that in two of those three cases, the decision to certify a question was undertaken sua sponte, without prompting from the litigants. Stated differently, where a litigant sought certification, such requests were overwhelmingly rejected.
Because the data is limited (and subject to the caveats listed above), it is difficult to be very proscriptive for litigants appearing before the Sixth Circuit. But it nevertheless seems safe to say that litigants have their work cut out for them if they are attempting to persuade the Sixth Circuit to certify questions to state supreme courts.
Yesterday, the Supreme Court announced that it would not review the “smelly washing machine cases” from the Sixth, Seventh, and Ninth Circuits. The Court had relisted the trio several times, increasing the odds that review would be granted. In the Sixth Circuit case, Whirpool v. Glazer, the panel had affirmed class certification for certain purchasers of front-loading washing machines that allegedly became moldy due to design defects. The Supreme Court summarily vacated and remanded that decision in light of Comcast. Concluding that Comcast did not change its analysis, the Sixth Circuit panel reaffirmed class certification.
This saga has been of particular interest to the class action bar. Whirpool and other defendant manufacturers have argued that the appellate courts construed Comcast too narrowly, making it too easy for classes to be certified. It remains to be seen whether Comcast’s scope will be reviewed in some other line of cases
In 2010 and 2011, Daubert became a hot issue in the Sixth Circuit after the court reversed a $20.5 million verdict, and then followed that decision up with a line of cases further expounding Daubert’s requirements. Although perhaps less publicized, this trend continued into 2012. Therefore, we thought it would be informative to look back at the Sixth Circuit’s treatment of Daubert since 2010, and in particular where the Court reversed on Daubert grounds.
Over the last four years, the Sixth Circuit has reversed five cases on the basis of the district court’s application of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). In fact, in four consecutive cases, the Sixth Circuit reversed the district court’s exclusion of expert testimony. The only case exhibiting the inverse scenario—reversing the admission of expert testimony—is the oldest of the group and is also arguably the most widely discussed: Tamraz v. Lincoln Elec. Co. See, for instance, our take on the decision.
The Sixth Circuit has repeatedly held that district courts serve a “gatekeeping role” under Daubert and Rule 702, and their decisions are reviewed for abuse of discretion. These five cases suggest, however, that a district court’s discretion is broader when allowing testimony than when excluding it. This is consonant with another theme from these cases: the Sixth Circuit believes that fact-finders, with the assistance of thoughtful cross-examination, are more than capable of weighing the substance and credibility of an expert and his or her opinion. Below is a brief description of the Daubert analysis from each case:
- Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 676 (6th Cir. Ohio 2010): Reversed the admission of expert testimony; specifically, that admitted expert testimony regarding causation was unreliable and not harmless. Defendants appealed the admission of expert testimony that manganese exposure caused plaintiff’s Parkinsonism. The Sixth Circuit held that the “etiological component” of the causation conclusion was “at most a working hypothesis, not admissible as scientific knowledge.” Although the hypothesis was plausible—perhaps even correct—it remains “no more than a hypothesis” and, therefore, “is not ‘knowledge,’ nor is it ‘based upon sufficient facts are data’ or the ‘product of reliability principles and methods.’” Despite plaintiff’s assertion that their expert performed a differential diagnosis, he did not, in fact, rule out all other possible causes.
- Andler v. Clear Channel Broad., Inc., 670 F.3d 717, 729 (6th Cir. Ohio 2012): Reversed exclusion of expert testimony; specifically as to future damages. The district court excluded the expert’s testimony because he used a pre-injury average earning capacity that was higher than plaintiff’s actual pre-injury salary. On this basis, the district court held that the methodology was “unreasonable speculation.” The Sixth Circuit reversed, holding that here, where plaintiff—a mother—shifting from part-time to full-time as her kids grew older is not “unrealistic speculation,” and could account for the increased earning capacity. It concluded that using full-time averages for pre-injury earning capacity “may not be particularly strong, but it is not proper for the Court to exclude expert testimony merely because the factual bases for an expert’s opinion are weak.” That is for the fact-finder.
- Dilts v. United Group Servs., LLC, 500 Fed. Appx. 440, 446 (6th Cir. Ky. 2012): Reversed exclusion of expert testimony; specifically, the opinion as to how the roof panel that fell from a structure at the steel plant fell and killed Dilts. The district court excluded the testimony on the basis that plaintiff’s expert “failed to sue valid and reliable principles,” and that his conclusion was “unsupported by the evidence.” The Sixth Circuit reversed, holding that the opinion was within the scope of his expertise, based only on the information obtained in photographs, his own observations of the worksite, and witness testimony, and that he “performed the necessary calculations and sufficiently relied on the laws of physics and mathematics generally employed in accident reconstruction to determine how the panel dislodged and rotated out of position leading to the death of Dilts.” As with Andler, the Court held the question is put to the fact-finder to weigh that evidence.
- Palatka v. Savage Arms, Inc., 535 Fed. Appx. 448, 461 (6th Cir. Mich. 2013): Reversed exclusion of expert testimony from two experts. First, the district court excluded plaintiff’s mechanical engineer expert on the basis that he did not have experience with firearms and, thus, his testimony would not assist the jury as to whether there was a manufacturing defect or design flaw with the firearm. Second, the district court excluded plaintiff’s material sciences expert on the basis that he could not identify the proximately cause of the firearm’s barrel failure or propose a feasible alternative. The Sixth Circuit reversed both exclusions, holding that both experts were within their expertise when they opined as to the cause of the failure—the excess depth of the site hole and the weakness of the metal chosen, respectively. “The scope of [their] expertise, the Sixth Circuit noted, “may cut against the weight given to [their] opinion[s], but it does not affect [their] admissibility.”
- Food Lion, LLC v. Dean Foods Co. (In re Southeastern Milk Antitrust Litig.), 739 F.3d 262, 283 (6th Cir. Tenn. 2014): Reversed exclusion of expert testimony. The district court excluded the expert testimony concerning antitrust geographic market because the method used was unreliable. Reversing, the Sixth Circuit held that the district court misapplied Daubert, and failed to review all the pertinent facts.
We will continue following closely the Sixth Circuit’s Daubert jurisprudence, and will report on any shifts in these trends.
How will the Sixth Circuit rule on the high-profile issue of whether the State of Ohio constitutionally is required to recognize, on an Ohio resident’s death certificate, a same-sex marriage that was lawfully performed in another state? We may find out sooner rather than later.
On Valentine’s Day, the plaintiffs in Obergefell, et al. v. Wymyslo, et al. (6th Cir. Case No. 14-3057), filed a motion for an expedited briefing schedule and argument in the appeal filed by Ohio Attorney General Mike DeWine from the December 23, 2013 decision by the U.S. District Court for the Southern District of Ohio holding that “under the Constitution of the United States, Ohio must recognize on Ohio death certificates valid same-sex marriages from other states.” See Plaintiff-Appellees’ Motion for Expedited Briefing Schedule (PDF).
Sixth Circuit Rule 26(f) provides that a motion to expedite briefing may be granted upon a showing of “good cause,” while 28 U.S.C. § 1657 similarly permits an action to be expedited based on “good cause,” which exists “if a right under the Constitution of the United States or a Federal Statute . . . would be maintained in a factual context that indicates that a request for expedited consideration has merit.” The plaintiffs argue in their motion to expedite that “[t]he sheer volume of same-sex marriage cases in federal and state courts across the country and the rapid pace with which they are moving indicates that the constitutionality of laws, such as Ohio’s, that deny respect to the marriages of same-sex couples entered into in other states is an issue of tremendous public importance that deserves prompt attention from the Court.”
The Ninth and Tenth Circuits both have accelerated their calendars in appeals involving challenges to state bans on the performance and recognition of same-sex marriages, so it is possible the Sixth Circuit will follow the lead of these other Circuits. This is a case that may end up at the Supreme Court in 2014 or 2015, so we will keep a close watch.
Last week, the Sixth Circuit reversed a district court opinion dismissing personal injury claims brought by the estate of a patient of who died following an allergic reaction to heparin. In Shuler et al v. Garrett et al, Pauline Shuler’s heirs appealed the decision of the United States District Court for the Western District of Tennessee dismissing their negligence and medical battery claims stemming from Shuler’s death at Intensive Care Unit of Baptist Memorial Hospital-Memphis. The complaint, founded on diversity jurisdiction and invoking Tennessee law, alleged that the hospital administered injections of heparin (an anticoagulant) in contravention of Shuler’s specific instructions and the hospital’s knowledge of Shuler’s allergy to heparin—as exhibited in both her medical records and on her medical bracelet. The complaint attributes Shuler’s death to her allergic reaction to heparin.
Relying on Cary v. Arrowsmith, 777 S.W.2d 8 (Tenn. Ct. App. 1989), the District Court dismissed the cause of action for medical battery, holding that “the heparin injections were not ‘procedures’ or ‘treatments’ for the purposes of medical battery; rather, the injections were ‘therapeutic drug’ treatment[s]” and, therefore, could not qualify as medical battery, but only medical malpractice. Under the Tennessee Medical Malpractice Act (“TMMA”), medical malpractice actions are subject to heightened notice and pleading requirements, which plaintiffs failed to meet.
Reversing the dismissal of plaintiffs’ medical battery claim, the Sixth Circuit held that Cary, an informed consent case, did not apply here, where the allegations provide that “the heparin injections were administered despite Pauline’s explicit refusal.” Because the patient did not authorize the procedure, the Sixth Circuit rejected appellees’ contention that Shuler gave a general authorization to treatment. “We cannot find, and the defendants do not offer any Tennessee caselaw that supports the proposition that, absent exigency or incapacity, a prior general grant of consent could trump a subsequent, explicit refusal to submit to the procedure at issue.”
Therefore, the Sixth Circuit reversed the district court’s judgment and allowed the claim of medical battery to proceed. This decisions shows that the Sixth Circuit will carefully scrutinize a plaintiff’s claims on a motion to dismiss.
The Sixth Circuit in Javery v. Lucent Technologies Inc. has declined to address the continuing viability of the de novo standard for judicial estoppel. While the Javery Court recognized that the Supreme Court characterizes judicial estoppel as an equitable remedy invoked by the court at its discretion and that the majority of federal courts review for abuse of discretion, without a “more definitive statement” from the Supreme Court the Sixth Circuit believes itself bound by its own precedent to apply the de novo standard. While this circuit split might be ripe for Supreme Court review Javery may not be the case to resolve the split as the Sixth Circuit held that the district court’s ruling was proper under both the de novo standard historically applied in the Sixth Circuit and the more widely applied abuse of discretion standard.
Rather than address heightened pleading requirements head on, there is a temptation to fall back on the general leniency of notice pleading to suggest that heightened requirements are not that consequential after all. Or to put it another way, that a heightened pleading requirement is just a heightened standard with a low bar. But heightened pleading requirements matter and courts in the Sixth Circuit enforce them.
As an example, consider the recent unpublished decision of Jelani Jabari v. Fannie Mae. The plaintiffs lost their home in a foreclosure sale and brought suit after the statutory redemption period had expired. Under such circumstances, the Court had the power to set aside the foreclosure sale, but only if the plaintiffs made out “a strong case of fraud or irregularity” and “show[ed] that they would have been in a better position to preserve their interest in the property absent defendant’s noncompliance with the statute.” In an opinion written by Judge Stranch, the Court concluded that this burden was not met and affirmed a motion to dismiss.
It is worth noting that the plaintiffs in this case were sympathetic and that the Court took notice of the bank’s conduct. Specifically, the Court noted the “slipshod nature” of an affidavit filed by the bank and described the mortgage process as “sloppy.” The Court even went so far as to say that – with respect to the mortgage process – it was “almost fictitious” to even use of the word “process.” And yet the Court still upheld the motion to dismiss. To be fair to the plaintiffs, it is possible that they could not have met the heightened standard in this case. But the decision serves as a good reminder to all who practice in the Sixth Circuit that a heightened pleading requirement is itself meaningful, “even viewed through the lenient lens of the Federal Rules of Civil Procedure.”