Recently in Injury & Tort Law Category

In plaintiffs' suit against a school district on behalf of their daughter who suffers from cognitive and developmental disorders alleging that the district's failure to provide their daughter with appropriate eduction obstructed her intellectual growth, summary judgment for defendant favor is affirmed for the most part but a portion of its ruling is vacated and remanded where: 1) district court erred in determining that the plaintiffs do not have standing to pursue their Individuals with Disabilities Education Act claim; and 2) plaintiffs did not waive their right to proceed directly under the Rehabilitation Act and the ADA.   

Read Chambers v. Sch. Dist. of Phiadelphia Bd. of Educ., No. 07-4790

Appellate Information

On Appeal from the United States District Court for the Eastern District of Pennsylvania  

Opinion Filed November 20, 2009

Judges

Before: Barry, Fisher and Jordan, Circuit Judges

Opinion by Fisher, Circuit Judge 

Counsel

Counsel for Appellant:  David J. Berney

Counsel for Appellee:   Richard G. Turttle, Archer & Greiner

In one of the so-called "birther" suits challenging Barack Obama's eligibility to run for and serve as President of the United States based on claims that Obama was born in Kenya and therefore was not a natural born citizen of the United States, dismissal of the action is affirmed where plaintiff lacked standing to bring the suit because he suffered no injury particularized to him.    

Read Berg v. Obama, No. 08-4340

Appellate Information

On Appeal from the United States District Court for the Eastern District of Pennsylvania

(D.C. No. 2-08-cv-04083)  

District Judge: Honorable Barclay Surrick

Opinion Filed November 12, 2009

Judges

Before:   Sloviter, Fuentes, and Hardiman, Circuit Judges

Opinion by Sloviter, Circuit Judge 

Counsel

Counsel for Appellant:  Philip J. Berg

Counsel for Appellee:  Robert F. Bauer, Perkins Coie LLP; Joseph E. Sandler, Thomasenia P. Duncan, David Kolkler, Kevin Deeley, Steve N. Hajjar

In plaintiffs-homebuyers' putative class action to recover statutory treble damages pursuant to section 8(d)(2) of the Real Estate Settlement Procedures Act (RESPA) of 1974, district court's dismissal of the complaint for lack of jurisdiction is reversed as the plain language of RESPA section 8 indicates that Congress created a private right of action without requiring an overarching allegation.  Finally, plaintiffs are not barred by the filed rate doctrine as it simply does not apply in this case.   

Read Alston v. Countrywide Fin. Corp., No. 08-4334

Appellate Information

On Appeal from the United States District Court for the Eastern District of Pennsylvania

(D.C. Civil No. 07-cv-03508)  

District Judge: Honorable James T. Giles

Opinion Filed October 28, 2009

Judges

Before:  Barry, Fisher, and Jordan, Circuit Judges

Opinion by Barry, Circuit Judge 

Counsel

Counsel for Appellant:  Edward W. Ciolko, Joseph H. Meltzer, Donna S. Moffa, Terrence S. Ziegler, Barroway, Topaz, Kessler, Meltzer & Check; Eric G. Calhoun, Travis & Calhoun

 Counsel for Appellee:  Christine N. Kohl, Michael J. Singer, United States Department of Justice, Civil Division. 

In plaintiff's suit against defendant for fraudulent misrepresentation and negligence arising from his investment in their microwave technology, district court's grant of summary judgment in favor of defendant is vacated and remanded as the district court's proximate cause analysis was in error as plaintiff produced enough evidence to raise a genuine issue of material fact as to whether defendant's misrepresentations were a substantial factor in causing his failed investment.   

Read Bouriez v. Carnegie Mellon Univ., No. 07-3876

Appellate Information

On Appeal from the United States District Court for the Middle District of Pennsylvania (Civil No. 02-cv-02104)

District Judge: Honorable Arthur J. Schwab.

Opinion Filed October 26, 2009

Judges

Before:  Fisher, Chagares, and Hardiman, Circuit Judges

Opinion by Chagares, Circuit Judge 

Counsel

Counsel for Appellant:  John R. Gall, Philomena M. Dane, Christopher F.W. Haas, Kristen M. Blankley, Squire Sanders & Dempsey, LLP; John M. Mehren.

Counsel for Appellee:  George E. Yokitis, Walter P. DeForest, Mindy J. Shreve, Deforest, Koscelnik Yokitis Kaplan & Berardinelli

District court's dismissal of plaintiff's putative class action against State Farm under the Fair Credit Reporting Act (FRCA) is affirmed as plaintiff failed to state a claim for his false pretenses and permissible purpose claims because State Farm's mailer constituted an offer of insurance under the FCRA, and that was a permissible purpose for disclosing plaintiff's credit report.   

Read Gelman v. State Farm Mut. Auto. Ins. Co., No. 07-3665

On Appeal from the United States District Court for the Eastern District of Pennsylvania

(Civ. No. 06-cv-05118)  

District Judge: Honorable William H. Yohn

Opinion Filed October 5, 2009

Judges

Before:  Scirica, Chief Judge, McKee and Smith, Circuit Judges

Opinion by McKee, Circuit Judge 

Counsel

Counsel for Appellant:  Patrick J. Loughren, Loughren, Loughren & Loughren, PC; Daniel C. Levin, Levin, Fishbein, Sedran & Berman; Christopher G. Hayes, Law Office of Christopher G. Hayes

Counsel for Appellee: James T. Moughan, Britt, Hankins & Moughan; Michael P. Kenny, Cari K. Dawson, Derin B. Dickerson, Alston & Bird LLP.  

In class action cases claiming a vast conspiracy between some of the nation's largest insurance brokers and insurance carriers involving bid rigging and steering of customers, district court's orders granting final approval of a $121.8 million settlement and a $28 million settlement, as well as the district court's order approving an award of $29.5 million for attorneys' fees and expenses is affirmed where: 1) each element of the alleged RICO violations and violation under the Sherman Act involved common questions of law and fact which predominated over any individual ones and therefore satisfies the predominance requirement of Rule 23(b)(3); 2) the district court's decision not to certify separate subclasses or require separate representation did not constitute an abuse of discretion and likewise, its approval of the settlement agreement and plan of allocation was also within its discretion; and 3) district court's award of attorneys' fees was reasonable and not an abuse of discretion.     

Read In re: Ins. Brokerage Antitrust Litig., No. 07-1759

Appellate Information

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 04-cv-05184)
District Judge: Honorable Garrett E. Brown, Jr.

Argued April 21, 2009
Opinion Filed September 8, 2009

Judges

Before:  Scirica, Chief Judge, Fisher and Greenberg, Circuit Judges 
Opinion by Circuit Judge Fisher

Counsel

Counsel for Appellant:  Edward F. Siegel, Edward  W. Cochran, N. Albert Bacharach, Andrea J. Lawrence , Howard J. Bashman, John J. Pentz, III

Counsel for Appellee: Bryan L. Clobes ,  Ellen Meriwether, Cafferty Faucher LLP, Edith M. Kallas, Joe R. Whatley, Jr., Whatley, Drake & Kallas LLC, James A. Donahue, III, Jennifer J. Kirk, Office of Attorney General of Pennsylvania, Edwin M. Larkin, III, Lina M. Viviano, Christopher J. Paolella, Winston & Strawn

In plaintiffs' case against a hospital and doctors under the Emergency Medical Treatment and Active Labor Act (EMTALA) 42 U.S.C. section 1395dd, district court's grant of summary judgment in favor of defendants is affirmed where: 1) the type of plaintiff's routine hospital visits for pregnancy and her status as a outpatient does not trigger EMTALA; and 2) plaintiffs' evidence was not sufficient to raise a disputed issue with respect to a stabilization claim. 

Read Torretti v. Main Line Hosps., Inc., No. 08-1525

Appellate Information

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 06-cv-03003)

District Judge: Honorable Juan R. Sanchez

Argued January 28, 2009
Opinion Filed September 2, 2009

Judges

Before:  Scirica, Chief Judge, Ambro, and Smith, Circuit Judges 
Opinion by Circuit Judge Ambro

Counsel

Counsel for Appellant: Barbara R. Axelrod, James E. Beasley, Jr., Dion G. Rassias,

Counsel for Appellee: Daniel F. Ryan, III, O'Brien & Ryan, Peter J. Hoffman, Eckert, Seamans, Cherin & Mellott

In a dispute over damages and attorney's fees stemming from a Religious Freedom Restoration Act and tort action, district court judgment is vacated where that the district court assessment of the evidence was based on an improper interpretation of the interrogatories and verdict sheet and thus the court erred in attributing a portion of plaintiff's tort award to her RFRA claim. On remand, the Hensley standard should guide the district court's consideration of pendent state claims in a litigation where a plaintiff has prevailed on a fee-eligible federal claim.   

Read Abdi Jama v. Esmor Correctional Services, Inc., No. 08-2500

Appellate Information
Appeal from the United States District Court for the District of New Jersey.
Argued May 20, 2009
Filed August 12, 2009

Judges
Before RENDELL and GARTH, Circuit Judges, and VANASKIE, District Judge.
Opinion by RENDELL Circuit Judge.
Dissenting Opinion by GARTH, Circuit Judge.

Counsel
For Appellant: James C. Owens, Virginia A. Seitz, Frank R. Volpe, Rebecca K. Wood, Sidley Austin LLP.

For Appellee: Drew Dorman, Derek S. Tarson, Justin P. Smith, Mary Beth Hogan, Alison J. Page, W. Barton Patterson, Erica Davila, Debevoise & Plimpton; Penny Venetis, Rutgers University.  

In a class action alleging that Snapple products were deceptively labeled, district court judgment is reversed where: 1) defendant waived its express preemption argument; 2) implied field preemption does not apply as neither Congress nor the FDA intended to occupy the fields of food and beverage labeling and juice products; and 3) implied conflict preemption does not apply as there is no FDA policy with which state law could conflict since neither the FDA policy statement nor the FDA's letter regarding the term "natural" have the force of law required to preempt conflicting state law.    

Read Holk v. Snapple Beverage Corp., No. 08-3060

Appellate Information
Appeal from the United States District Court for the District of New Jersey.
Argued June 24, 2009
Filed August 12, 2009

Judges
Before BARRY, SMITH, Circuit Judges and RESTANI, Judge.
Opinion SMITH, Circuit Judge.

Counsel
For Appellant: Lynne M. Kizis, Daniel Lapinski, Philip A. Tortoreti, Wilentz, Goldman & Spitzer.

For Appellee: Van H. Beckwith, Jeffrey A. Lamken, Michael G. Pattillo, Jr., Martin V. Totaro, Baker Botts.