Weekly Case Digests – February 10, 2020 – February 14, 2020

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: United States of America v. William Anthony Dodds

Case No.: 19-1135

Officials: BAUER, BRENNAN, and SCUDDER, Circuit Judges.

Focus: Sentencing – Supervised Release

William Dodds appeals several conditions of supervised release imposed as part of his sentence for passport fraud, in violation of 18 U.S.C. § 1542. Dodds contends the challenged conditions are either unconstitutionally vague or lack adequate justification. But in the district court, he objected to only one of the proposed conditions and affirmatively waived any challenge to the rest. While the written judgment must be modified to conform one condition to the oral pronouncement, in all other respects it is correct, so we modify the written judgment and affirm the judgment as modified.

Modified and affirmed

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7^th Circuit Court of Appeals

Case Name: Osama Taha v. International Brotherhood of Teamsters, Local 781

Case No.: 19-1085

Officials: SYKES, HAMILTON, and BRENNAN, Circuit Judges.

Focus: Failure to State Claim

Federal law imposes a duty on unions to fairly represent all employees in their bargaining units. Osama Taha sued his union, arguing it breached that duty after his employer fired him for abandoning his job. Although the union grieved Taha’s firing, he alleges it did so unfairly. He also contends the union wrongfully shut down his grievance process. The district court dismissed Taha’s second amended complaint for failure to state a claim, finding it gave no details to support any allegation of unlawful union conduct. Our review compels the same conclusion. Because Taha’s complaint fails to state a plausible claim for relief, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Barbara Kaiser v. Johnson & Johnson and Ethicon, Inc.,

Case No.: 18-2944

Officials: FLAUM, KANNE, and SYKES, Circuit Judges.

Focus: Damages

Barbara Kaiser had surgery to implant the Prolift Anterior Pelvic Floor Repair System, a transvaginal mesh medical device that supports the pelvic muscles. Within a few years of her surgery, Kaiser began experiencing severe pelvic pain, bladder spasms, and pain during intercourse. Her physician attributed these conditions to contractions in the mesh of the Prolift. Kaiser had revision surgery to remove the device, but her surgeon could not completely extract it. He informed her that the painful complications she was experiencing were likely permanent.

Kaiser sued Ethicon, Inc., Prolift’s manufacturer, and Johnson & Johnson, its parent company, seeking damages under the Indiana Products Liability Act, IND. CODE §§ 34- 20-1-1 to 34-20-9-1. (Johnson & Johnson has no distinct role in this litigation, so we refer to the defendants collectively as “Ethicon.”) After a two-week trial, a jury found Ethicon liable for defectively designing the Prolift device and failing to adequately warn about its complications. The jury awarded a hefty sum: $10 million in compensatory damages and $25 million in punitive damages, though the judge granted Ethicon’s motion for remittitur and reduced the punitive award to $10 million.

Ethicon’s appeal is a broad-spectrum attack on the judgment, starting with an argument about federal preemption and moving through several issues of Indiana product-liability law, a claimed evidentiary error, and challenges to the compensatory and punitive damages. We reject these arguments and affirm. One issue in particular warrants special mention upfront. Our caselaw interprets the Indiana Product Liability Act to require a plaintiff in a design-defect case to produce evidence of a reasonable alternative design for the product. The Indiana Supreme Court disagrees. See TRW Vehicle Safety Sys., Inc. v. Moore, 936 N.E.2d 201, 209 (Ind. 2010). The state supreme court’s decision controls on a matter of state law, so we apply TRW rather than our own contrary precedent.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Judy Lynn Prater v. Andrew Saul

Case No.: 19-2263

Officials: RIPPLE, SYKES, and ST. EVE, Circuit Judges.

Focus: Disability Benefits – RFC Assessment

Judy Prater applied for Social Security Disability Insurance Benefits based on a variety of mental and physical impairments. An administrative law judge denied her application on the ground that her residual functional capacity (“RFC”) allows her to perform limited sedentary work, and the district court affirmed. On appeal, Ms. Prater argues only that the RFC assessment is too vague about her need to alternate between sitting and standing. However, because the sit/stand limitation in the RFC assessment specifies that Ms. Prater may change positions as needed so long as she remains in position for at least thirty minutes at a time, we affirm the judgment of the district court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Kevin Ingram

Case No.: 19-1403

Officials: FLAUM, ROVNER, and SCUDDER, Circuit Judges.

Focus: Sufficiency of Evidence

A federal jury convicted Kevin Ingram of three counts of Hobbs Act robbery (Counts 1–3), one count of attempted Hobbs Act robbery (Count 4), and four counts of possession of a firearm in furtherance of those crimes of violence (Counts 5–8). Ingram now appeals, arguing (1) that there was insufficient evidence on Count 5 for the jury to return a conviction and (2) that his conviction on Count 8 cannot stand because attempted Hobbs Act robbery does not qualify as a crime of violence. For the following reasons, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Thomas A. Censke v. United States of America

Case No.: 18-2695

Officials: WOOD, Chief Judge, and HAMILTON and SCUDDER, Circuit Judges.

Focus: FTCA Violation – Prison-mailbox Rule

Prisoners face unique challenges when submitting legal filings. Non-prisoners often have access to electronic filing methods and, if not, can take their filings to the post office. But prisoners must use the prison’s mail system, where security concerns often cause the system to operate more slowly than standard mail. For legal filings, timing can make all the difference, as it did for Thomas Censke.

Censke placed his administrative complaint under the Federal Tort Claims Act in the prison’s mailbox with nine days to spare, but the government stamped it as received after the statutory deadline had passed. The question is which date counts—when Censke put it in the mail or when it arrived. The district court held that Censke’s claim was not filed until received, so it was untimely. We reverse and hold that the prison-mailbox rule applies to a prisoner’s administrative complaint under the Federal Tort Claims Act and so it is filed upon being placed in the prison’s mail.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: Damon Goodloe v. Kul Sood, et al.

Case No.: 18-1910

Officials: WOOD, Chief Judge, and BARRETT and SCUDDER, Circuit Judges.

Focus: 8^th Amendment Violation

Patients are often the best source of information about their medical condition. A physician’s decision to persist with ineffective treatment and ignore a patient’s repeated complaints of unresolved pain and other symptoms can give rise to liability—or, at the very least, raise enough questions to warrant a jury trial. Damon Goodloe’s case is a good example.

An inmate in the care of the Illinois Department of Corrections, Goodloe invoked 42 U.S.C. § 1983 and alleged that his treating physician within the Hill Correctional Center responded to his repeated complaints of rectal bleeding and severe pain with a course of demonstrably ineffective treatment and undue delay in sending him to an outside specialist for evaluation. The discovery process revealed medical records and other documents corroborating many of these allegations. On the record before us, then, Goodloe has brought forth enough evidence to put to a jury his Eighth Amendment claim against his treating physician for deliberately indifferent medical care. We therefore reverse the district court’s conclusion to the contrary, while otherwise affirming the entry of summary judgment in all other regards.

Reversed in part. Affirmed in part.

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7^th Circuit Court of Appeals

Case Name: Ashlee and Ruby Henderson, et al. v. Kristina Box, Indiana State Health Commissioner

Case No.: 17-1141

Officials: FLAUM, EASTERBROOK, and SYKES, Circuit Judges

Focus: Injunction and Declaratory Judgment

The district court issued an injunction requiring Indiana to treat children born into female-female marriages as having two female parents, who under the injunction must be listed on the birth certificate. 209 F. Supp. 3d 1059, 1079–80 (S.D. Ind. 2016). Because Indiana lists only two parents on a birth certificate, this effectively prevents the state from treating as a parent the man who provided the sperm, while it requires the identification as parent of one spouse who provided neither sperm nor egg. The judge concluded that this approach is required by the Due Process and Equal Protection Clauses of the Fourteenth Amendment, which as understood in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), oblige governmental bodies to treat same-sex couples identically to opposite-sex couples. Because Indiana lists a husband as a biological parent (when a child is born during a marriage) even if he did not provide sperm, the district judge concluded, it must treat a wife as a parent even if she did not provide an egg.

Having expressed these concerns, we must be clear what need not change. The district court’s order requiring Indiana to recognize the children of these plaintiffs as legitimate children, born in wedlock, and to identify both wives in each union as parents, is affirmed. The injunction and declaratory judgment are affirmed to the extent they provide that the presumption in Ind. Code §31-14-7-1(1) violates the Constitution. The remainder of the judgment is vacated, and the case is remanded for proceedings consistent with this opinion.

Vacated and remanded

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: Brian A. Patterson v. Steven R. Kohn, et al.

Case No.: 2017AP1524

Officials: Brash, P.J., Fitzpatrick and Donald, JJ

Focus: Court Error – Expert Testimony

Brian A. Patterson, pro se, appeals the summary judgment order dismissing his legal malpractice action against his former criminal defense attorney, Steven R. Kohn, Kohn and Smith Law Offices, and Kohn’s malpractice insurance provider (collectively, “Kohn”). The circuit court granted Kohn’s summary judgment motion, determining that Patterson failed to name an expert witness within the time prescribed by the court’s scheduling order. Patterson argues that the circuit court erred in granting the motion because no expert testimony was necessary. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Matthew Curtis Sills

Case No.: 2018AP1053-CR

Officials: Brash, P.J., Kessler and Dugan, JJ.

Focus: Plea Withdrawal

Matthew Curtis Sills appeals from the judgment of conviction, following his guilty plea to one count of second-degree sexual assault. Sills argues that the trial court erred in denying his motion to withdraw his guilty plea prior to sentencing even though the evidence establishes that he was not advised of the maximum fine for the second-degree sexual assault charge and that he did not know that any fine could be imposed. We agree. Therefore, we reverse the judgment and remand with directions to allow Sills to withdraw his plea.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Hector M. Martin-Andrade

Case No.: 2018AP1345-CR

Officials: Brash, P.J., Kessler and Reilly, JJ.

Focus: Plain Error

Hector M. Martin-Andrade appeals a judgment convicting him of first-degree sexual assault of a child. He also appeals an order denying his motion for postconviction relief. Martin-Andrade argues: (1) the circuit court erred when it denied his third motion to adjourn the trial; (2) the circuit court erred when it permitted the State’s expert witness to testify beyond the scope of the summary she provided prior to trial; (3) it was plain error for the prosecutor to argue in closing that the victim lost her sexual innocence at the hands of the defendant; and (4) the circuit court erred when it denied his ineffective assistance of counsel claim without a hearing. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Samterious Gordon

Case No.: 2018AP1772-CR

Officials: Kessler, Dugan and Fitzpatrick, JJ.

Focus: Ineffective Assistance of Counsel

Samterious Gordon appeals a judgment of conviction for one count each of first-degree reckless injury with use of a dangerous weapon, first-degree recklessly endangering safety with use of a dangerous weapon, and being a felon in possession of a firearm. Gordon also appeals an order of the circuit court denying his motion for postconviction relief. Gordon argues that he is entitled to a new trial because he was denied his right to a fair trial and because Gordon’s trial counsel was constitutionally ineffective. For the reasons discussed below, we affirm the judgment of conviction and the order of the circuit court.

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WI Court of Appeals – District I

Case Name: David Stroede v. Society Insurance, et al.

Case No.: 2018AP1880; 2018AP2371

Officials: Kessler, Dugan and Fitzpatrick, JJ.

Focus: Statutory Immunity

David Stroede appeals the order granting summary judgment to Society Insurance and Railroad Station, LLC, based on Jacob Tetting’s actions. Tetting and West Bend Mutual also appeal the non-final order denying their motion for summary judgment on the question of statutory immunity pursuant to WIS. STAT. § 895.529 (2017-18). We affirm the circuit court’s grant of summary judgment to Society Insurance and Railroad Station, LLC, but reverse the circuit court’s order denying Tetting’s and West Bend Mutual’s summary judgment motion.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Anthony Kwaame It

Case No.: 2018AP1909-CR; 2018AP1910-CR; 2018AP1911-CR

Officials: Brash, P.J., Kessler and Dugan, JJ.

Focus: Plea Colloquy

Anthony Kwaame It, pro se, appeals from judgments, entered upon his guilty pleas, convicting him of four different offenses in three cases. He also appeals from the denial of his postconviction motion, in which It argued that he should be allowed to withdraw his guilty pleas because he received ineffective assistance of trial counsel and because the plea colloquy was defective. We reject It’s arguments and affirm the judgments and order.

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WI Court of Appeals – District I

Case Name: Taft Parsons, Jr., v. Associated Banc-Corp

Case No.: 2018AP2329

Officials: Brash, P.J., Kessler and Dugan, JJ.

Focus: Court Error – De Novo Review

Taft and Carol Parsons (the Parsons) appeal the trial court’s order dismissing their claims against Associated Banc-Corp (the Bank).  The parties disagree as to the standard of review. The Parsons submit that they are raising issues of law subject to our de novo review. The Bank contends that because the Parsons repeatedly attack the trial court’s factual findings and complain that the trial court ignored facts, we should employ the clearly erroneous standard of review. We disagree We affirm.

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WI Court of Appeals – District I

Case Name: Milwaukee County v. E.C.H.

Case No.: 2019AP772

Officials: DONALD, J.

Focus: Mootness – Involuntary Commitment

E.C.H. appeals an order of the circuit court granting a WIS. STAT. ch. 51 extension order. E.C.H. has since been released from his commitment. On appeal, E.C.H. contends that the circuit court did not make an appropriate finding of dangerousness, pursuant to WIS. STAT. § 51.20(1)(am). Specifically, E.C.H. contends that the circuit court erroneously equated E.C.H.’s homelessness with dangerousness. The County contends that because the commitment order underlying this appeal has expired, this appeal is moot. We agree. Accordingly, we dismiss this appeal as moot.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Jeremy M. Blank

Case No.: 2018AP2105

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Focus: Abuse of Discretion – Due Process Violation

Jeremy Blank appeals pro se from orders summarily denying his motions for postconviction relief and for reconsideration of that denial. We hold Blank’s due process rights were not violated and that the trial court properly exercised its discretion in not granting him an evidentiary hearing.

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WI Court of Appeals – District IV

Case Name: Dane County Department of Human Services v. J.R.,

Case No.: 2019AP820; 2019AP821

Officials: Sheila T. Reiff, Clerk

Focus: Order Correcting Opinion

PLEASE TAKE NOTICE that corrections were made to the above captioned opinion (footnote 11 on page 23 has been removed, and the publication recommendation on page 25 has been changed), which was released on November 27, 2019. A corrected electronic version in its entirety is available on the court’s website at www.wicourts.gov.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Sterling Ross Olsen

Case No.: 2018AP2059-CR

Officials: Blanchard, Kloppenburg and Nashold, JJ.

Focus: Ineffective Assistance of Counsel

Sterling Olsen appeals a judgment of conviction for armed robbery as a party to the crime and an order denying postconviction relief. Olsen contends that his plea lacked a factual basis; that he did not understand that his plea waived his right to a trial and that he pled only because he felt “scared” and “pressured”; and that his trial counsel was ineffective. Alternatively, Olsen seeks sentence modification on the ground that his sentence was unduly harsh. For the reasons set forth in this opinion, we reject these contentions. We affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Veritas Steel, LLC

Case No.: 2020 WI 3

Focus: Successor Liability Claim – De Facto Merger

Lunda Construction Company (Lunda) alleges that Veritas Steel, LLC (Veritas), and third-party defendants Atlas Holdings, LLC (Atlas), and Bridge Fabrication Holdings, LLC, took unfair advantage of PDM Bridge, LLC’s (PDM) loan defaults, “with the intent to gain ownership of PDM’s lucrative steel fabrication business for grossly inadequate consideration through a secretive, unlawful and fraudulent process designed to render PDM an empty shell with no assets remaining to satisfy PDM’s eight-figure liability to Lunda.”

The circuit court granted summary judgment to Veritas on Lunda’s successor liability claim because there was no genuine issue of material fact as to the de facto merger, mere continuation, and fraudulent transaction exceptions to the general rule against successor liability. The court of appeals affirmed as to the de facto merger and mere continuation exceptions, the only exceptions Lunda raised on appeal.

The question before us is whether the de facto merger, mere continuation, and fraudulent transaction exceptions to the rule against successor liability apply in this case to impose successor liability on Veritas. Lunda asks this court to read Fish v. Amsted Indus., Inc., 126 Wis. 2d 293, 376 N.W.2d 820 (1985), as having expanded the de facto merger and mere continuation exceptions. Lunda further asserts that the court of appeals erroneously dismissed its successor liability claim in light of the fraudulent transaction exception.

We reject Lunda’s expanded reading of Fish, 126 Wis. 2d 293, and conclude that Lunda has not raised a genuine issue of material fact as to an “identity of ownership” between Veritas and PDM, the key component necessary to satisfy the de facto merger and mere continuation exceptions. We further conclude that by not raising the fraudulent transaction exception before the court of appeals, Lunda forfeited that argument. We therefore affirm the court of appeals.

Affirmed

Concur: ROGGENSACK, C.J., filed a concurring opinion.

Dissent:
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Supreme Court Digests

United States Supreme Court

Case Name: Ritzen Group, Inc. v. Jackson Masonry, LLC

Case No.: 18-938

Focus: Bankruptcy – Automatic Stay

Under the Bankruptcy Code, filing a petition for bankruptcy automatically “operates as a stay” of creditors’ debt collection efforts outside the umbrella of the bankruptcy case. 11 U. S. C. §362(a). The question this case presents concerns the finality of, and therefore the time allowed for appeal from, a bankruptcy court’s order denying a creditor’s request for relief from the automatic stay. In civil litigation generally, a court’s decision ordinarily becomes “final,” for purposes of appeal, only upon completion of the entire case, i.e., when the decision “terminate[s the] action” or “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Gelboim v. Bank of America Corp., 574 U. S. 405, 409 (2015) (internal quotation marks omitted). The regime in bankruptcy is different. A bankruptcy case embraces “an aggregation of individual controversies.” Collier on Bankruptcy ¶5.08[1][b], p. 5–43 (16th ed. 2019). Orders in bankruptcy cases qualify as “final” when they definitively dispose of discrete disputes within the overarching bankruptcy case. Bullard v. Blue Hills Bank, 575 U. S. 496, 501 (2015).

The precise issue the Court today decides: Does a creditor’s motion for relief from the automatic stay initiate a distinct proceeding terminating in a final, appealable order when the bankruptcy court rules dispositively on the motion? In agreement with the courts below, our answer is “yes.” We hold that the adjudication of a motion for relief from the automatic stay forms a discrete procedural unit within the embracive bankruptcy case. That unit yields a final, appealable order when the bankruptcy court unreservedly grants or denies relief.

Affirmed

Dissenting:

Concurring:
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United States Supreme Court

Case Name: Retirement Plans Committee of IBM, et al. v. Larry W. Jander, et al.

Case No.: 18-1165

Focus: ERISA – Fiduciary Duty

In Fifth Third Bancorp v. Dudenhoeffer, 573 U. S. 409 (2014), we held that “[t]o state a claim for breach of the duty of prudence” imposed on plan fiduciaries by the Employee Retirement Income Security Act of 1974 (ERISA) “on the basis of inside information, a plaintiff must plausibly allege an alternative action that the defendant could have taken that would have been consistent with the securities laws and that a prudent fiduciary in the same circumstances would not have viewed as more likely to harm the fund than to help it.” Id., at 428. We then set out three considerations that “inform the requisite analysis.” Ibid.

The question presented in this case concerned what it takes to plausibly allege an alternative action “that a prudent fiduciary in the same circumstances would not have viewed as more likely to harm the fund than to help it.” Id., at 428. It asked whether Dudenhoeffer’s “‘more harm than good’ pleading standard can be satisfied by generalized allegations that the harm of an inevitable disclosure of an alleged fraud generally increases over time.” Pet. for Cert. i.

In their briefing on the merits, however, the petitioners (fiduciaries of the ESOP at issue here) and the Government (presenting the views of the Securities and Exchange Commission as well as the Department of Labor), focused their arguments primarily upon other matters. The petitioners argued that ERISA imposes no duty on an ESOP fiduciary to act on inside information. And the Government argued that an ERISA-based duty to disclose inside information that is not otherwise required to be disclosed by the securities laws would “conflict” at least with “objectives of ” the “complex insider trading and corporate disclosure requirements imposed by the federal securities laws . . . .” Dudenhoeffer, 573 U. S., at 429.

The Second Circuit “did not address the[se] argument[s], and, for that reason, neither shall we.” F. Hoffmann-La Roche Ltd. v. Empagran S. A., 542 U. S. 155, 175 (2004) (citation omitted); see Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005) (“[W]e are a court of review, not of first view”). See also 910 F. 3d 620 (CA2 2018). Nevertheless, in light of our statement in Dudenhoeffer that the views of the “U. S. Securities and Exchange Commission” might “well be relevant” to discerning the content of ERISA’s duty of prudence in this context, 573 U. S., at 429, we believe that the Court of Appeals should have an opportunity to decide whether to entertain these arguments in the first instance. For this reason we vacate the judgment below and remand the case, leaving it to the Second Circuit whether to determine their merits, taking such action as it deems appropriate.

Vacated and remanded

Dissenting:

Concurring:
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