Taking Stock: A Review of Justice Stevens’s Last Book and an Appreciation of His Extraordinary Service on the Supreme Court

RODGER CITRON

Rodger D. Citron, the Associate Dean for Research and Scholarship and a Professor of Law at Touro College, Jacob D. Fuchsberg Law Center, comments on the late Justice John Paul Stevens’s last book, The Making of a Justice: Reflections on My First 94 Years. Citron laments that, in his view, the memoir is too long yet does not say enough, but he lauds the justice for his outstanding service on the Supreme Court.

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In re: Avandia Marketing, Sales and Products Liability Litigation

Court: US Court of Appeals for the Third Circuit

Docket: 18-1010

Opinion Date: December 17, 2019

Judge: Restrepo

Areas of Law: Commercial Law, Consumer Law, Drugs & Biotech, Health Law, White Collar Crime

Health benefit plans sued GSK, the manufacturer of the prescription drug Avandia, under state consumer-protection laws and the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. ch. 96 (RICO), based on GSK’s marketing of Avandia as having benefits to justify its price, which was higher than the price of other drugs used to treat type-2 diabetes. The district court granted GSK summary judgment, finding that the state-law consumer-protection claims were preempted by the Federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. ch. 9; the Plans had failed to identify a sufficient “enterprise” for purposes of RICO; and the Plans’ arguments related to GSK’s alleged attempts to market Avandia as providing cardiovascular “benefits” were “belated.” The Third Circuit reversed, applying the Supreme Court’s 2019 "Merck" decision. The state-law consumer-protection claims are not preempted by the FDCA. The Plans should have been given the opportunity to seek discovery before summary judgment on the RICO claims. Further, from the inception of this litigation, the Plans’ claims have centered on GSK’s marketing of Avandia as providing cardiovascular benefits as compared to other forms of treatment, so the district court’s refusal to consider the Plans’ “benefits” arguments was in error because those arguments were timely raised.

Jackson Women's Health Organization v. Dobbs

Court: US Court of Appeals for the Fifth Circuit

Docket: 18-60868

Opinion Date: December 13, 2019

Judge: Higginbotham

Areas of Law: Civil Rights, Constitutional Law, Health Law

The Gestational Age Act, a Mississippi law that prohibits abortions, with limited exceptions, after 15 weeks' gestational age is an unconstitutional ban on pre-viability abortions. The Fifth Circuit held that states may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman's right, but they may not ban abortions. The court held that the law at issue is a ban on certain pre-viability abortions, which Planned Parenthood of Se. Pa. v. Casey does not tolerate and which presents a situation unlike that in Gonzales v. Carhart. The court explained that, with respect to bans like this one, the Supreme Court's viability framework has already balanced the state's asserted interests and found them wanting: Until viability, it is for the woman, not the state, to weigh any risks to maternal health and to consider personal values and beliefs in deciding whether to have an abortion. The court also held that the district court was within its discretion in limiting discovery of the issue of viability and excluding expert testimony regarding fetal pain perception. Finally, the court upheld the district court's award of permanent injunctive relief.

Texas v. United States

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-10011

Opinion Date: December 18, 2019

Judge: Jennifer Walker Elrod

Areas of Law: Constitutional Law, Government & Administrative Law, Health Law, Tax Law

Plaintiffs, two private citizens and eighteen states, filed suit challenging the individual mandate requirement of the Patient Protection and Affordable Care Act (ACA). The individual mandate required individuals to maintain health insurance coverage and, if individuals did not maintain this coverage, they must make a payment to the IRS called a shared responsibility payment. Plaintiffs argued that the individual mandate was no longer constitutional because: (1) Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 538 (2012), rested the individual mandate's constitutionality exclusively on reading the provision as a tax; and (2) a 2017 amendment, which changed the amount of the shared responsibility payment to zero dollars, undermined any ability to characterize the individual mandate as a tax because the provision no longer generates revenue, a requirement for a tax. Plaintiffs further argued that the individual mandate was essential to, and inseverable from, the rest of the ACA and thus the entire ACA must be enjoined. The Fifth Circuit affirmed in part and vacated in part the district court's judgment, holding that there is a live case or controversy because the intervenor-defendant states have standing to appeal and, even if they did not, there remains a live case or controversy between plaintiffs and the federal defendants; plaintiffs have Article III standing to bring this challenge to the ACA because the individual mandate injures both the individual plaintiffs, by requiring them to buy insurance that they do not want, and the state plaintiffs, by increasing their costs of complying with the reporting requirements that accompany the individual mandate; the individual mandate is unconstitutional because it can no longer be read as a tax, and there is no other constitutional provision that justifies this exercise of congressional power; and, on the severability question, the court remanded to the district court to provide additional analysis of the provisions of the ACA as they currently exist.

Vierk v. Whisenand

Court: US Court of Appeals for the Seventh Circuit

Dockets: 19-1605, 19-1602, 19-1604

Opinion Date: December 23, 2019

Judge: Joel Martin Flaum

Areas of Law: Civil Rights, Constitutional Law, Criminal Law, Health Law, Medical Malpractice, White Collar Crime

The Drug Enforcement Administration investigated Dr. Ley and his opioid addiction treatment company, DORN, conducted undercover surveillance, and decided Ley did not have a legitimate medical purpose in prescribing Suboxone. Indiana courts issued warrants, culminating in arrests of four physicians and one nurse and seven non-provider DORN employees. Indiana courts dismissed the charges against the non-providers and the nurse. Ley was acquitted; the state dismissed the charges against the remaining providers. DORN’s providers and non-provider employees sued, alleging false arrest, malicious prosecution, and civil conspiracy. The district court entered summary judgment for the defendants, holding probable cause supported the warrants at issue. The Seventh Circuit affirmed as to every plaintiff except Mackey, a part-time parking lot attendant. One of Ley’s former patients died and that individual’s family expressed concerns about Ley; other doctors voiced concerns, accusing Ley of prescribing Suboxone for pain to avoid the 100-patient limit and bring in more revenue. At least one pharmacy refused to fill DORN prescriptions. Former patients reported that they received their prescriptions without undergoing any physical exam. DORN physicians prescribed an unusually high amount of Suboxone; two expert doctors opined that the DORN physicians were not prescribing Suboxone for a legitimate medical purpose. There was evidence that the non-provider employees knew of DORN’s use of pre-signed prescriptions and sometimes distributed them. There were, however, no facts alleged in the affidavit that Mackey was ever armed, impeded investigations, handled money, or possessed narcotics.

Cares Community Health v. Department of Health and Human Services

Court: US Court of Appeals for the District of Columbia Circuit

Docket: 18-5319

Opinion Date: December 20, 2019

Judge: Cornelia Thayer Livingston Pillard

Areas of Law: Government & Administrative Law, Health Law

Cares filed suit claiming that defendants unlawfully allowed an insurer offering Medicare prescription drug coverage, Humana, to pay Cares less for drugs that Cares obtains at a discount under a separate federal program known as Section 340B, than Humana would reimburse a non-Federally Qualified Health Center (FQHC) for the same drugs. The DC Circuit affirmed the district court's dismissal of Cares' claim, holding that the Medicare statute does not preclude HHS from approving prescription drug plans that lower reimbursements for FQHC pharmacy services based on whether the FQHC obtained the pharmaceuticals at a discount under Section 340B. The court need not and did not decide whether the statute permits the contrary interpretation Cares advances or whether, as a matter of policy, HHS might promulgate regulations requiring Medicare prescription drug plans to include a "not less than" term in their agreements with FQHCs to secure to FQHCs broader financial benefits from 340B drug discounts.

Ex parte Kaleen Rugs, Inc.

Court: Supreme Court of Alabama

Dockets: 1171199, 1170864, 1170887, 1170894, 1171182, 1171196, 1171197, 1171198

Opinion Date: December 20, 2019

Judge: Stewart

Areas of Law: Civil Procedure, Environmental Law, Government & Administrative Law, Health Law

Mandamus petitions before the Alabama Supreme Court presented a question of whether the Cherokee Circuit Court and the Etowah Circuit Court (collectively, "the trial courts") could properly exercise personal jurisdiction over the petitioners, out-of-state companies (collectively, the defendants) in actions filed against them by the Water Works and Sewer Board of the Town of Centre ("Centre Water") and the Water Works and Sewer Board of the City of Gadsden ("Gadsden Water"). Centre Water and Gadsden Water alleged the defendants discharged toxic chemicals into industrial wastewater from their plants in Georgia, which subsequently contaminated Centre Water's and Gadsden Water's downstream water sources in Alabama. After moving unsuccessfully in the trial courts to have the actions against them dismissed, the defendants filed petitions for writs of mandamus seeking orders from the Alabama Supreme Court directing the trial courts to dismiss the actions against them based on a lack of personal jurisdiction. The Supreme Court consolidated all the petitions for the purpose of issuing one opinion. Because Indian Summer, Kaleen, and Milliken made a prima facie showing that the trial courts lacked specific personal jurisdiction and Centre Water and Gadsden Water failed to produce any evidence to contradict that showing, the trial courts should have granted their motions to dismiss. Indian Summer, Kaleen, and Milliken have, therefore, demonstrated a clear legal right to the relief sought –- dismissal of Gadsden Water's and Centre Water's complaints against them –- and the petitions for a writ of mandamus in case nos. 1170887, 1171197, and 1171199 were granted. The Supreme Court concluded the trial courts could exercise specific personal jurisdiction over the remaining defendants, and that the remaining defendants did not demonstrated a clear legal right to relief at this stage.

Mathews v. Becerra

Court: Supreme Court of California

Docket: S240156

Opinion Date: December 26, 2019

Judge: Goodwin Liu

Areas of Law: Criminal Law, Health Law

The Supreme Court reversed the judgment of the court of appeal affirming the judgment of the trial court dismissing this complaint filed by Plaintiffs, two therapists and one counselor, alleging that the basic norm of confidentiality protected by the psychotherapist-patient privilege applies to admissions by certain patients of downloading or electronically viewing child pornography, holding that Plaintiffs asserted a cognizable privacy interest under the California Constitution and that their complaint survived demurrer. Specifically, Plaintiffs claimed that the 2014 amendment to Cal. Pen. Code 11165.1(c)(3), which requires Plaintiffs to report to law enforcement and child welfare authorities patients who have admitted to downloading or electronically viewing child pornography, violated their patents' right to privacy under the Fourteenth Amendment to the United States Constitution and Cal. Const. art. I, 1. Defendants filed demurrers, arguing that Plaintiffs failed to establish a valid constitutional privacy claim. The trial court dismissed the complaint, and the court of appeals affirmed. The Supreme Court reversed, holding that Plaintiffs' allegations satisfied the threshold inquiry for a cognizable privacy claim.

Cobb Hospital v. Department of Community Health et al.

Court: Supreme Court of Georgia

Dockets: S19G1007, S19C1007

Opinion Date: December 23, 2019

Judge: Per Curiam

Areas of Law: Civil Procedure, Constitutional Law, Government & Administrative Law, Health Law

This case involved Cobb Hospital, Inc.'s and Kennestone Hospital, Inc.'s (collectively, “Wellstar”) challenge to the decision by the Georgia Department of Community Health (“DCH”) to grant Emory University Hospital Smyrna (“Emory”) a new certificate of need (“CON”) to renovate a hospital that Emory had recently acquired. After DCH made an initial decision granting the CON, Wellstar appealed to the CON Appeal Panel. The panel’s hearing officer affirmed the decision, ruling that as a matter of law he could not consider Wellstar’s arguments regarding the validity of Emory’s existing CON, and that he would not allow Wellstar to present evidence related to those arguments. Wellstar then appealed the hearing officer’s decision to the DCH Commissioner, allegedly arguing among other things that the decision violated Wellstar’s constitutional right to due process. The Commissioner affirmed the hearing officer’s decision without ruling on the constitutional claim. In Division 2 of its opinion in this case, the Georgia Supreme Court determined the Court of Appeals erred by holding that the constitutional due process claim enumerated by Wellstar was not preserved for appellate review because it was not ruled on during the administrative proceeding that led to the filing of this case in the trial court. The Supreme Court thus granted Wellstar’s petition for a writ of certiorari to address that issue, reversed the Court of Appeals’s opinion, and remanded for that court to reconsider Wellstar’s constitutional claim.

Collins et al. v. Athens Orthopedic Clinic, P.A.

Court: Supreme Court of Georgia

Docket: S19G0007

Opinion Date: December 23, 2019

Judge: Peterson

Areas of Law: Civil Procedure, Consumer Law, Health Law, Internet Law, Personal Injury

Plaintiffs alleged in 2016, an anonymous hacker stole the personally identifiable information, including Social Security numbers, addresses, birth dates, and health insurance details, of at least 200,000 current and former patients of Athens Orthopedic Clinic (“the Clinic”) from the Clinic’s computer databases. The hacker demanded a ransom, but the Clinic refused to pay. The hacker offered at least some of the stolen personal data for sale on the so-called “dark web,” and some of the information was made available, at least temporarily, on Pastebin, a data-storage website. The Clinic notified plaintiffs of the breach in August 2016. Each named plaintiff alleges that she has “spent time calling a credit reporting agency and placing a fraud or credit alert on her credit report to try to contain the impact of the data breach and anticipates having to spend more time and money in the future on similar activities.” Plaintiffs sought class certification and asserted claims for negligence, breach of implied contract, and unjust enrichment, seeking damages based on costs related to credit monitoring and identity theft protection, as well as attorneys’ fees. They also sought injunctive relief under the Georgia Uniform Deceptive Trade Practices Act (“UDTPA”), and a declaratory judgment to the effect that the Clinic must take certain actions to ensure the security of class members’ personal data in the future. The Clinic filed a motion to dismiss based on both OCGA 9-11-12 (b) (1) and OCGA 9-11-12 (b)(6), which the trial court granted summarily. The Georgia Supreme Court concluded the injury plaintiffs alleged they suffered was legally cognizable. Because the Court of Appeals held otherwise in affirming dismissal of plaintiffs’ negligence claims, the Supreme Court reversed that holding. Because that error may have affected the Court of Appeals’s other holdings, the Court vacated those other holdings and remanded the case.

State v. Abella

Court: Supreme Court of Hawaii

Docket: SCWC-16-0000004

Opinion Date: December 17, 2019

Judge: Mark E. Recktenwald

Areas of Law: Criminal Law, Health Law

At issue was whether Defendant could be convicted of homicide if the victim's death was the immediate result of the victim's family's choice to withdraw medical care. The Supreme Court vacated Defendant's conviction of manslaughter and remanded the case for a new trial, holding that the circuit court committed plain error by failing to instruct the jury on causation and culpability pursuant to Haw. Rev. Stat. 702-215 and 207-216. After Defendant severely beat the victim, the victim was comatose for more than a week. Twelve days later, the victim was removed from life support and declared dead. A jury found Defendant guilty of manslaughter. The Supreme Court reversed, holding (1) Haw. Rev. Stat. 327E-13(b), a provision in the Uniform Health-Care Decisions Act, which prohibits designated as a homicide any "[d]eath resulting from the withholding or withdrawal of health care" under the Act, did not shield Defendant from conviction; and (2) the jury should have been given instructions on causation pursuant to sections 702-215 and 702-216, which would have enabled the jury to consider whether the intervening volitional conduct of the medical team and family interrupted the chain of causation between Defendant's actions and the victim's death such that it would be unjust to convict Defendant of homicide.

Eldridge v. West, Turpin & Summit

Court: Idaho Supreme Court - Civil

Docket: 45214

Opinion Date: December 20, 2019

Judge: Stegner

Areas of Law: Civil Procedure, Health Law, Medical Malpractice, Personal Injury

This was a permissive appeal brought by Phillip and Marcia Eldridge1 in a medical malpractice action they filed against Dr. Gregory West (West), Lance Turpin, PA-C (Turpin), and Summit Orthopaedics Specialists, PLLC (Summit). The Eldridges alleged that Phillip became infected with Methicillin-Resistant Staphylococcus Aureus (MRSA) as a result of malpractice committed by West, Turpin, and agents of Summit. The Eldridges claimed West and Turpin breached the standard of care that was due them and as a result, sustained damages. The district court granted various motions, including a motion to dismiss certain causes of action against West, Turpin, and Summit, as well as a motion for summary judgment brought by Turpin and Summit, and a motion for partial summary judgment brought by West. On appeal, the Eldridges contended the district court erred in: (1) dismissing their claims for negligent and intentional infliction of emotional distress, gross negligence, and reckless, willful, and wanton conduct; (2) denying their motion to strike the affidavits of West and Turpin; (3) limiting their claim for damages; and (4) concluding that the Eldridges could only present evidence of damages, specifically medical bills, after the Medicare write-offs had been calculated. The Idaho Supreme Court concurred with the Eldridges, reversed the district court and remanded for further proceedings.

Plastic Surgery Group, P.C. v. Comptroller of the State of New York

Court: New York Court of Appeals

Citation: 2019 NY Slip Op 08979

Opinion Date: December 17, 2019

Judge: Fahey

Areas of Law: Health Law

The Court of Appeals affirmed the order of the Appellate Division, holding that, under N.Y. C.P.L.R. 3122(a)(2), the Comptroller of the State of New York's subpoenas to a medical provider seeking patients' records in carrying out the Comptroller's obligation to audit payments to private companies that provide health care to beneficiaries of a state insurance program need not be accompanied by written patient authorizations. Petitioner, a professional corporation engaged in the practice of plastic surgery, was served with a subpoena duces tecum requesting the names and addresses of certain patients. Petitioner commenced this special proceeding to quash the subpoena, arguing that under C.P.L.R. 3122(a)(2) it was not obligated to respond to the subpoena. Supreme Court granted the petition and quashed the subpoena. The Appellate Division reversed. The Court of Appeals affirmed, holding that the requirements set out in C.P.L.R. 3122(a)(2) apply only to subpoenas duces tecum served after the commencement of an action, and therefore, the statute does not require that the Comptroller's subpoenas be accompanied by written patient authorizations.

Williams v. Meeker North Dawson Nursing, LLC

Court: Oklahoma Supreme Court

Citation: 2019 OK 80

Opinion Date: December 17, 2019

Judge: Tom Colbert

Areas of Law: Civil Procedure, Health Law, Personal Injury, Trusts & Estates

The estate of an individual that died as a result of an injury incurred while being a patient of a nursing home sued the nursing home facility in a wrongful death action. The district court entered default judgment for Plaintiff after Defendant failed to file a response or appear in court multiple times. Over 200 days later, Defendant filed a petition to vacate default judgment and the petition was granted. Plaintiff appealed the ruling, and the Court of Civil Appeals (COCA), affirmed the trial court's decision. The Oklahoma Supreme Court concluded it was "patently clear" Defendant's arguments for the Petition to Vacate Judgment as to liability was without merit. "[The Nursing Home] Meeker was given a multitude of opportunities to respond to the litigation, but failed to respond to a single instance for 280 days after the initial service of process. Meeker failed to respond to any service of process or appear at any hearing, and did not have an argument with merit to support the inability to respond to the litigation." Accordingly the Supreme Court vacated the opinion of the Court of Civil Appeals, reversed the trial court's judgment granting the Petition To Vacate Judgment as to liability, and remanded this matter for a trial on damages.

In re Comanche Turner

Court: Supreme Court of Texas

Docket: 18-0102

Opinion Date: December 20, 2019

Judge: Debra Lehrmann

Areas of Law: Health Law, Medical Malpractice, Professional Malpractice & Ethics

In this health care liability action, the Supreme Court conditionally granted Claimant's petition for writ of mandamus and ordered the court of appeals to vacate its order ruling that Claimant was not permitted to depose a health care provider before serving him with an expert report, holding that the court of appeals erred in holding that the Medical Liability Act categorically prohibited Claimant from deposing or obtaining documents from that provider. Claimant sued one health care provider, served an expert report meeting the requirements of the Act on that provider, and then sought to depose Dr. Jeffrey Sandate, another provider involved in the underlying incident and a nonparty in the action. The court of appeals ruled that Claimant may not depose Dr. Sandate before serving him with an expert report under the Act. The Supreme Court ordered the court of appeals to vacate its order, holding that the Act did not insulate Dr. Sandate from being deposed or producing documents in this case.