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Week 24 (2018)

Week of June 11, 2018 through June 15, 2018

Garnett v. Remedi Seniorcare of Virginia, LLC (Wilkinson 6/11/2018): The Fourth Circuit held that an employee can not hold their employer vicariously liable for an alleged defamatory statement made by a co-worker. The Court found that even though the co-worker was at work at the time the statements were made, the employee did not sufficiently show that the co-worker was acting within the scope of his employment to support vicarious liability. Therefore, the Fourth Circuit affirmed the ruling of the District Court, which granted a motion to dismiss for failure to state a claim, on the alternate ground of vicarious liability. Full Opinion.

Hutton v. Nat’l Bd. of Examiners in Optometry, Inc. (King 6/12/2018): The Fourth Circuit held that Plaintiffs in a data breach case alleged injury-in-fact and traceability in their pleadings sufficient to confer Article III standing to sue. The Court distinguished this case from other data breach cases by pointing out that the Complaints cited specific instances where the Plaintiff’s information had been used without their knowledge or consent, such that they were forced to take mitigating action. Additionally, the Court found that the Complaints contained allegations demonstrating that it was both plausible and likely that a breach of the Defendant’s database resulted in the fraudulent use of the Plaintiffs’ personal information, thus satisfying the ‘traceability’ requirement for standing. Therefore, the Court vacated the dismissal by the District Court and remanded for further proceedings. Full Opinion.

In Re: Lipitor (Atorvastatin Calcium) Mktg., Sales Practices & Prod. Liab. Litig. (No II) (Diaz 6/12/2018): The Fourth Circuit held that the District Court acted within its discretion when it excluded testimony of three experts pursuant to its Daubert-granted gatekeeping ability. The Court ruled that the District Court justified its Daubert exclusions by finding that: 1) an expert statistician’s methodology and analysis of data-sets and his methodologies when reanalyzing clinical trial data were too tainted with bias, 2) an expert doctor did not prove general causation for different dosages of the drug in question, and 3) an expert doctor impermissibly disregarded other possible causation to such a degree that it did not qualify as reasoned scientific analysis. The District Court found that without this expert testimony, the Plaintiffs were unable to prove causation. The Fourth Circuit agreed and affirmed the rulings of the District Court. Full Opinion.

Martinez v. Sessions (Traxler 6/15/2018): The Fourth Circuit held that alien’s conviction under Maryland consolidated theft statute on amounts that involved less than $500 did not categorically qualify as crimes involving moral turpitude, and thus an alien is not ineligible for cancellation of removal as a result. The court reasoned that the Maryland statute permitted de minimis, temporary takings like joyriding to be prosecuted as theft and thus the statute does not categorically qualify as a crime involving moral turpitude. Therefore, the court granted the petition for review, vacated the Board of Immigration Appeals order and remanded for further review. Full Opinion.

United States v. Shephard (Diaz 6/15/2018): The Fourth Circuit held that a vulnerable victim sentencing enhancement was appropriate, and that a loss amount calculation was proper, where the victims of a wire-fraud scheme were over the age of fifty-five and repeatedly wired money. The Court reasoned that ‘reloading,’ where a victim continues to send money upon request after the initial contact in a fraudulent telemarketing scheme, is sufficient to support a finding that the victims were unusually vulnerable. Further, the Court found that absent proof of an affirmative withdrawal from a conspiracy, a conspirator is liable for the losses that their coconspirators continue to inflict. Therefore, the Fourth Circuit affirmed the District Court’s judgment. Full Opinion.

Nauflett v. Comm’r of Internal Revenue (Agee 6/14/2018): The Fourth Circuit held that a tax code provision setting a 90-day deadline for filing petition for relief from unpaid tax liability based on spousal innocence was jurisdictional. The Court reasoned that where Congress expresses its clear intent for a filing deadline to be jurisdictional, it is jurisdictional. The Court found sufficient evidence of intent in the plain reading of the statute. Therefore, the Court affirmed the decision of the Tax Court in considering an untimely petition. Full Opinion.

Highlight Case

In Re: Lipitor (Atorvastatin Calcium) Mktg., Sales Practices & Prod. Liab. Litig. (No II), No. 17-1140

Decided: June 12, 2018

The Fourth Circuit affirmed the District Court’s ruling and held that the exclusion of expert opinion’s as to statistical association between Lipitor and diabetes, general causation, and specific causation was proper. The Court found that: (1) a statisticians’ expert opinion had used predetermined clinical trial criteria despite having expressed his confusion as to the criteria and not being a medical professional with expertise in diabetes, (2) an expert opinion detailing general causation of diabetes by certain doses had deviated from norms of the field by applying criteria without first finding statistically significant association between the dosage and diabetes, (3) an expert opinion detailing specific causation used methodology not used by herself or other’s in her field and could not adequately explain the conclusion that statin caused diabetes despite patients having other substantial risk factors for diabetes.

Plaintiffs, more than three thousand women consolidated in multi-district litigation, sued Pfizer claiming that they developed diabetes as a result of taking Lipitor. At the close of discovery, Pfizer moved to exclude expert witness testimony using the Court’s Daubert gatekeeping ability. The District Court agreed and the ruling left the Plaintiffs without their bellwether cases. Plaintiffs appealed the decision to exclude the testimony and the grant of summary judgment against them.

The Fourth Circuit reasoned that a statistician’s expert opinion was too tainted with potential bias and error to pass Daubert, and that he was simply not qualified to make determinations about which patients’ data should have alerted Pfizer to a possible association between its drug and diabetes. The Fourth Circuit found that the District Court properly weighed the reliability and relevance in excluding the statistician’s testimony. Further, the Fourth Circuit reasoned that the Plaintiffs expert as to general causation because it did not provide proof of causation as to different dosages, only and 80mg dose. Lastly, Plaintiffs expert on specific causation failed to employ a reliable methodology to determine that Lipitor was a substantial contributing factor in development of diabetes and did not sufficiently address the many other risk factors that can independently cause diabetes.

Accordingly, the Fourth Circuit affirmed the District Court’s evidentiary rulings and found no error in the decision to grant summary judgment to Pfizer.

Full Opinion

Ross Heyl