End-of-year countdowns are all the rage, and we thought it would be fitting to close out 2011 with a countdown for our loyal blog readers. Without further ado, I present to you the five most important areas of law addressed by the Sixth Circuit in 2011.
No. 5 – More Rigorous Pleading Requirements In The Post-Twombly and Post-Iqbal Era. In 2011, the Sixth Circuit decided several cases that signal higher pleading requirements in the Circuit, and practitioners should take note when drafting their complaints. As we previously reported here, the Sixth Circuit in mid-2011 decided New Albany Tractor, Inc. v. Louisville Tractor, Inc., No. 10-5100 (6th Cir. June 21, 2011) (PDF), in which the panel reluctantly dismissed a complaint that likely would have survived pre-Twombly (PDF) and pre-Iqbal (PDF). The panel in New Albany recognized that no discovery was permitted even though the plaintiff had no way of finding out the facts solely in the hands of the defendants. The Sixth Circuit’s August decision in Chesbrough v. VPA, PC (6th Cir. Case No. 10-1494), only further reinforced the Court’s recent trend in insisting on rigorous pleading post-Twombly. Following New Albany and Chesbrough, numerous district courts within the Sixth Circuit have dismissed complaints where the plaintiffs were not precise in their pleading and where the information to demonstrate plausibility was solely in the hands of the defendants. The trend of the district courts is likely to continue in 2012. We’ll stay on top of it.
No. 4 – Free Speech Challenge To The New Federal Tobacco Law. Another important area of law addressed by the Sixth Circuit involves the free speech challenge to the Family Smoking Prevention and Tobacco Control Act, Public Law 111-31, which gives the Food and Drug Administration the power to regulate tobacco advertising and marketing. See Discount Tobacco City & Lottery v. United States (6th Cir., Case Nos. 10-5234 & 5235). The plaintiffs are arguing that several provisions of the Tobacco Control Act violate their First Amendment rights to free speech—most prominently, the new color warnings which graphically depict the negative health consequences of smoking: 
The Sixth Circuit heard oral arguments in this case back in late July, and we are waiting for a decision by the panel.
No. 3 – Daubert Rulings and the Future of Expert Testimony in the Sixth Circuit. In a series of cases decided during the past year, the Sixth Circuit has continued its trend of requiring strict compliance with the requirements of Rule 702 of the Federal of Evidence and Daubert for all aspects of expert testimony. See Thomas v. Novartis Pharmaceuticals Corp, (6th Cir. Nos. 09-6147, 09-6272, 09-6274) (PDF); Pluck v. BP Oil Pipeline Co. (09-4572) (discussed here). As we have warned practitioners, strict compliance with Rule 702 and Daubert is the new norm in the Sixth Circuit. Having said that, the recent opinions handed down by the Sixth Circuit can be used to a party’s advantage because they provide a roadmap on how to cross-examine experts effectively to discredit their opinions.
(Side note: Our litigation colleague, Robin Weaver, successfully argued the Pluck case on behalf of BP Oil Pipeline Co. Look for Robin to discuss the case –and its ramifications—in a future video blog on our website.)
No. 2 – Affirmative Action in College Admissions. Affirmative action became a hot area of law in the Sixth Circuit this past summer. As we previously reported, the Sixth Circuit on July 1, 2011 struck down an amendment to the Michigan Constitution popularly known as “Proposal 2,” which was passed by voter referendum in 2006 to prohibit Michigan’s public colleges and universities from granting “preferential treatment to[] any individual or group on the basis of race, sex, color, ethnicity, or national origin.” Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary v. Regents of the Univ. of Michigan (6th Cir. Nos. 08-1387, 08-1389, 08-1534, 09-1111). Judge Cole, writing for himself and Judge Daughtrey, ruled that Proposal 2 ran afoul of U.S. Supreme Court precedent interpreting the Equal Protection Clause. The panel’s July 1, 2011 decision sparked national commentary on affirmative action, and by September 9, 2011, the Sixth Circuit had voted to rehear en banc the panel decision. We are closely following this case in the Sixth Circuit, especially since it could eventually reach the U.S. Supreme Court.
And finally…the envelope please…
No. 1 – The Obama Health Care Statute. Without a doubt, the single most important area of law addressed by the Sixth Circuit in 2011 involved the high profile constitutional challenge to the mandate requiring individuals to purchase health insurance under the recently enacted Patient Protection and Affordable Care Act, Public Law 111-148. See Thomas More Law Center, et al. v. Obama, et al. (Sixth Circuit, Case No. 10-2388). We were the first blog to provide an in-depth analysis of the Sixth Circuit oral argument on the health care challenge, and one of the first to report on the Sixth Circuit’s June 29, 2011 decision upholding the health care statute as a constitutional exercise of Congress’s commerce power. See Opinion, Thomas More Law Center, et al. v. Obama, et al. (Sixth Circuit, Case No. 10-2388). The Sixth Circuit was the first Circuit Court in the country to rule on the health care statute’s constitutionality when it issued its 64 page opinion just 28 days after oral argument. The challenge to the health care statute is now before the U.S. Supreme Court, with a landmark decision expected in 2012 (perhaps coinciding with the Presidential election). As the Supreme Court begins to address the constitutionality of the health care statute, you can be sure that the parties will draw upon the majority opinions and dissenting opinion in the Thomas More case when fashioning their arguments.
And so an exciting year at the Sixth Circuit has come to an end. Continue to follow us in 2012 as we provide you the best coverage and most sophisticated analysis of the Sixth Circuit. Happy 2012!
