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Opioid Update: Judge Kethledge Reclaims Solitude—and Civil Procedure

Perhaps the most notable Sixth Circuit opinion of April—and almost certainly the most quotable—was Judge Kethledge’s opinion granting mandamus and reversing leave to amend in the opioid MDL. For a unanimous panel (Siler & Griffin, JJ.), the opinion followed the Circuit’s stay of Judge Polster’s discovery order back in February. That order would’ve required pharmacies … Continue Reading

Sixth Circuit Holds Due Process Guarantees Right To Access Literacy

A Sixth Circuit panel held last week, in Gary B. v. Whitmer, that the Fourteenth Amendment’s Due Process Clause guarantees a “right to access to literacy.” As a result, students in some of Detroit’s worst-performing public schools may pursue their claim for improved educational offerings—at least absent further appellate review. The district court dismissed the students’ due … Continue Reading

Cert Watch: Supreme Court to review split Sixth Circuit FTCA decision on election-of-remedies

The Supreme Court recently granted certiorari in Brownback v. King, agreeing to review a split decision from the Sixth Circuit (then styled King v. US) involving the contours of the Federal Tort Claim Act’s judgment bar.  The Court’s decision should help resolve confusion regarding whether plaintiffs should add FTCA claims to their Bivens actions. 28 … Continue Reading

Always. Check. Jurisdiction.

At the end of last month, the Sixth Circuit decided that two cases involving complex, multiparty litigation did not belong in federal court. Boal v. DePuy Orthopaedics, Inc. involved twelve consolidated suits brought by foreign plaintiffs and ultimately dismissed by the district court on the basis of the forum non conveniens doctrine.  The plaintiffs, all … Continue Reading

“Twisted” Path to New Trial for Dr. Paulus

A 2018 Sixth Circuit panel upheld a jury verdict convicting Dr. Richard Paulus of submitting fraudulent medical claims. That same panel, with 2020 hindsight(!), reversed that conviction. It held that the trial court’s order unconstitutionally blocked exculpatory evidence. Jury Verdict Set Aside The “twisted” history of the verdict began when a jury deadlocked twice and … Continue Reading

Sixth Circuit Issues ADA Work-from-Home Decision, Right Before We All Start Working from Home

As the world hunkers down and works from home during this COVID-19 crisis, a WFH accommodation decision from the Sixth Circuit feels timely. Though the decision predates social distancing and office closures, its relevance to the employer-employee relationship may outlast the coronavirus. In Tchankpa v. Ascena Retail Group, Inc., the Sixth Circuit affirmed the principle … Continue Reading

*Updated* Coronavirus Update: A Moving Target

This post reflects the latest news available to Ben Glassman, Ben Beaton, and others at Squire Patton Boggs. We expect the blog and the court’s website to continue updating litigants as the situation develops. Response to COVID-19 among the federal courts in the Sixth Circuit continues to evolve. Since yesterday’s post, the Middle and Eastern Districts … Continue Reading

Sixth Circuit Adds its Voice to the post-Janus Chorus: Good-Faith Defense Applies to Union “Fair-Share” Fees

This post is brought to you thanks to the help of friend-of-the-blog Kirk Mattingly, EIC of the University of Louisville Law Journal.  On Monday, the Sixth Circuit joined the Seventh and Ninth Circuits by ruling that the so-called “good faith” defense bars § 1983 claims that seek to recover “fair-share” fees collected under valid state … Continue Reading

Opioid Update: Sixth Circuit Stays National Dispensing Discovery—For Now

This post is brought to you thanks to the help of friend-of-the-blog Kirk Mattingly, EIC of the University of Louisville Law Journal.  Yesterday a Sixth Circuit panel (Siler, Griffin, Kethledge) stayed pharmacies’ production of national opioid dispensing data. With one exception: Ohio data that the court deemed “not so onerous” in light of an upcoming … Continue Reading

Opioid Update: Briefing Begins in Interlocutory Appeal of Negotiation-Class Ruling

Several national pharmaceutical distributors and Ohio cities have filed opening briefs in their Sixth Circuit challenge to Judge Polster’s novel “negotiation class” certification order. As this blog covered back in November, the court of appeals (Guy, Griffin, Kethledge) granted interlocutory review of the negotiation procedure. According to the distributors, the class creates conflicts of interest … Continue Reading

Bells Cannot Be Un-Rung: Gerrymandering Discovery Dispute Moot, Orders Vacated

In a short per curium opinion, the Sixth Circuit held that party officials’ appeal of an order compelling document discovery was moot after the court dismissed the gerrymandering challenge under the Supreme Court’s Rucho v. Common Cause decision. In its challenge to Ohio’s redistricting, the Randolph Institute compelled discovery from GOP officials and groups for … Continue Reading

Opioid Update: MDL Defendants Return to the Sixth Circuit

After a lull in appellate proceedings, one of the nation’s most closely watched cases (non-impeachment category) has returned to the Sixth Circuit, at least temporarily. Several chain drug stores that filled opioid prescriptions have filed a mandamus petition challenging Judge Polster’s order to produce “transactional dispensing data for the entire United States” from 2006 forward. … Continue Reading

Supreme Court Affirms Sixth Circuit: Bankruptcy Stay-Relief Denials Immediately Appealable

In a unanimous decision affirming the Sixth Circuit, the Supreme Court held that creditors have 14 days to appeal a bankruptcy court’s denial of relief from the automatic stay. In one of the term’s first decisions, Justice Ginsburg’s opinion in Ritzen Group, Inc. v. Jackson Masonry, LLC agreed with Judge Thapar’s conclusion that the denial … Continue Reading

“PLEASE READ IT CAREFULLY,” Sixth Circuit reminds policyholders

Ohio law requires courts to interpret ambiguous insurance-policy language against the drafter and in favor of policyholders. But if the language is clear and unambiguous (not to mention in a bold and ALLCAPS and super-big font), then courts apply the plain and ordinary meaning. On the basis of that second rule of construction, Judge Readler, for … Continue Reading

No Valentine for “Very Busy” Cardiologist Convicted of Fraud

After examining the body of evidence presented during trial, the Sixth Circuit refused to prescribe a new healthcare-fraud trial for Dr. Anis Chalhoub. A jury convicted the London (Ky.) cardiologist under 18 U.S.C. § 1347 for billing Medicare and other insurers for unnecessarily implanted pacemakers.  Although “some of the government’s tactics here leave something to … Continue Reading

Circuit Split: University Harassment Claim Requires Further Student-on-Student Harassment

The Sixth Circuit has weighed in on an issue that has divided the circuits: to state a claim under Title IX for “student-on-student sexual harassment,” must a victim actually experience further sexual harassment after the school learns of the prior harassment? Or is it enough that the victim is vulnerable to further harassment? In Kollaritsch … Continue Reading

Opioid Update: “Negotiation Class” Under Review

On Friday, Nov. 8, a Sixth Circuit panel (Guy, Griffin, and Kethledge) granted interlocutory appeals of drug manufacturers and distributors embroiled in the Northern District of Ohio opioid MDL. The appeals, brought under Federal Rule of Civil Procedure 23(f), oppose the district court’s certification of the novel “Negotiation Class.” Under the proposed procedure, any class … Continue Reading

Sixth Circuit certifies Pennsylvania security-screening comp question

Several suits by Amazon workers seeking pay for time spent in security screening have been consolidated in a multidistrict litigation in the Western District of Kentucky. In one of the putative state-law class actions, Pennsylvania-based workers argue that under the Pennsylvania Minimum Wage Act, Amazon owes them for the several minutes per shift they spend … Continue Reading

Opioid Update: Bellwether Settlement on Eve of Trial

On the eve of trial Monday morning, plaintiffs Summit and Cuyahoga Counties struck a deal worth $260 million. This avoided the first bellwether trial in the opioid multidistrict litigation before Judge Polster. The settlement extinguishes the counties’ claims against AmerisourceBergen, Teva, Cardinal Health, and McKesson. Walgreen’s did not settle, but its trial is pushed off … Continue Reading

Opioid Update: Sixth Circuit Won’t Halt Bellwether Trial (and more)

Today the Sixth Circuit issued much-anticipated rulings rejecting bids by Ohio and the industry defendants to halt the upcoming opioid MDL bellwether trial. And as noted below, in other venues the opioid litigation has seen recent notable action from another key state plaintiff and Judge Polster. Sixth Circuit denies “drastic and extraordinary” mandamus relief – … Continue Reading

Reviewing the Sixth Circuit’s Performance at the Supreme Court, OT2018 — Part One

During October Term 2018 (“OT2018”), the Supreme Court reversed less than two out of every three cases – its lowest reversal rate in three years. The Sixth Circuit fared particularly well (4 affirmances, 3 reversals), joining the Eleventh and D.C. Circuits as the only circuits to post a winning record.  Notably, the Court did not … Continue Reading
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