EDWA Court issues nationwide injunction blocking “gag rule” for abortion providers

Judge Bastian has issued a nationwide preliminary injunction in a high-profile case challenging the Trump Administration’s “gag rule” for abortion providers that receive federal funding.

We’ll leave this breaking news to the professionals. The New York Times, the Washington Post, and NPR all have coverage. Tom Clouse also wrote an excellent piece in the Spokesman-Review.

The case is State of Washington v. Alex Azar, Case No. 19-CV-3040-SAB.

Save the Date: Federal Civil Trial Practice Seminar on May 17

The 13th Annual Federal Civil Trial Practice Seminar is scheduled for May 17, 2019, at the federal courthouse in Richland. As always, the agenda is packed with engaging topics. Judge Shea, Judge Mendoza and their staff attorneys will kick off the day with the ever-popular Cases and Rules Update. Other presentations include:

  • Trios Bankruptcy: History in Our Backyard
  • Navigating Peremptory Challenges in Federal and State Courts
  • Ethical Concerns: Social Media and Marketing
  • Ask the Judges Panel (featuring Circuit Judge Eric Miller, Senior Circuit Judge Richard Tallman, Senior District Judge Frem Nielsen, and moderator Erika Hartliep)
  • Mediation: From Start to Finish

Registration is open through May 10. Click here for the agenda and registration form.

Ninth Circuit takes Erie doctrine to new heights in claim preclusion ruling

Do you love nuanced civil procedure rulings? We have just the case for you. It’s actually a Ninth Circuit case, but it originated here in the Eastern District of Washington. That’s why we’re featuring it.

Party A and Party B went to arbitration. The arbitrator issued an award in favor of Party A. Party A filed suit in federal court in Florida to have the award confirmed. The federal court, sitting in diversity, confirmed the award.

Party B then sued Party A in federal court in Washington. Party B’s complaint suggested that Party B was attempting to re-litigate the same claims that were decided in the arbitration. Party A moved to dismiss the case on claim preclusion grounds.

Sounds like a straightforward claim preclusion scenario, right? Well, not exactly. There’s a choice of law question lurking in the shadows. What claim preclusion law applies? Florida law? Washington law? Federal common law? They are all slightly different.

In a decision issued today, the Ninth Circuit held that Florida law applies. Why, you ask? Short answer: it’s an Erie doctrine thing. Stop reading and go turn your attention to more important questions.

If you’re dying for the long answer, here it is. Under the Erie doctrine, the preclusive effect of a judgment entered by a federal court sitting in diversity jurisdiction is governed by the law of the state in which the federal court is located. The same rule applies to a federal court judgment confirming an arbitration award.

The Ninth Circuit affirmed Judge Rice’s dismissal of Party B’s case on claim preclusion grounds. The case is NTCH-WA, Inc. v. ZTE Corp., Ninth Circuit Case No. 17-35833. The Ninth Circuit’s opinion can be found here. Law360 has more about the case here.

No cause of action under Section 1983 to enforce Federal Nursing Home Reform Amendments

42 U.S.C. § 1983 covers a lot of bases when it comes to bringing claims in federal court. But it does have its limits. A recent ruling by Judge Peterson reminds us that claims brought under Section 1983 must be based on a violation of a federal right. Not all federal statutes confer such a right.

John Shanklin suffered a debilitating stroke in 2014. Unable to provide the full-time care that he required, Mr. Shanklin’s wife arranged for him to be cared for at Coulee Medical Center (CMC). Despite being identified as a fall risk by CMC, Mr. Shanklin fell several times while in CMC’s care. He passed away shortly after his last fall.

Mr. Shanklin’s estate filed suit under Section 1983, alleging that CMC’s care violated the Federal Nursing Home Reform Amendments (FNHRA), 42 U.S.C. § 1396r. CMC moved to dismiss the complaint for failure to state a claim. CMC’s argument was that the alleged FNHRA violations, even if proven to have occurred, are not actionable under Section 1983.

To state a claim under Section 1983, a plaintiff “must assert [a] violation of a federal right, not merely a violation of federal law.” Blessing v. Freestone, 520 U.S. 329, 340 (1997) (emphasis in original). Applying that principle, Judge Peterson concluded that the complaint failed to state a claim. Her reasoning was twofold.

First, Judge Peterson ruled that Congress did not intend to create a federal right when it enacted FNHRA. Analyzing the text of the specific provisions that CMC was alleged to have violated, she found no evidence that the statute was designed to confer protected rights on individual patients:

The [FNHRA] provisions that [the estate] is attempting to enforce . . . are all phrased in terms of what the nursing facilities must do, rather than the protections that the patients must receive. Because the nursing facilities are the subjects of the provisions in question, the provisions are not “phrased in terms of the persons benefited” and do not afford individual rights to nursing facility patients.

Second, Judge Peterson concluded that the provisions in question were “too vague or amorphous” to be enforced through Section 1983. If the case were to proceed to trial, she observed, the jury would be asked highly subjective questions such as whether CMC’s services “enhanced the quality of life” for its patients. Had Congress intended for FNHRA violations to be actionable under Section 1983, Judge Peterson reasoned, it surely would have provided a more definite standard for establishing liability.

This is a question of first impression in the Ninth Circuit. Other circuits have taken the opposite view, holding that FNHRA violations are actionable under Section 1983. See Concourse Rehab. & Nursing Ctr. Inc. v. Whalen, 249 F.3d 136, 144 (2d Cir. 2001); Grammer v. John J. Kane Reg’l Ctrs.-Glen Hazel, 570 F.3d 520, 527 (3d Cir. 2009). Those cases, however, involved different subsections of the statute than the subsections that were implicated in this case. It will be interesting to see how the Ninth Circuit decides the question if the case is appealed.

The case is Shanklin v. Coulee Medical Center, Case No. 17-CV-0377-RMP. Shanklin was represented by Jerry Moberg of Jerry Moberg & Associates. Coulee Medical Center was represented by Jim King of Evans, Craven & Lackie.

Medical malpractice claim against VA falls short due to speculative expert opinion testimony

A medical malpractice case is usually a battle of the experts. But the battle sometimes ends prematurely when the plaintiff’s experts don’t make the grade under F.R.E. 702 and Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993). That happened last week in a case filed by the late Ricky Allan Port.

Mr. Port was diagnosed with pulmonary fibrosis by a VA doctor in Arizona in 2015. Later that year, Mr. Port moved to Spokane and was seen by a different VA doctor. That doctor confirmed the diagnosis and advised Mr. Port that the only viable treatment option was a lung transplant.

Problematically, however, Mr. Port was morbidly obese. By the time the diagnosis was made, he was too obese to qualify for the lung transplant donor list. The VA therefore declined to place him on the donor list. Mr. Port passed away from complications from the disease in 2016.

Mr. Port’s estate sued the VA for medical malpractice under the Federal Tort Claims Act (FTCA). The estate argued that the VA was negligent in failing to explain the necessity of a lung transplant when Mr. Port was first diagnosed in Arizona. Had that explanation been provided earlier, the estate claimed, Mr. Port could have reduced his weight through diet and exercise until he qualified for the donor list. The estate retained an expert witness who submitted a declaration to that effect.

Judge Rice concluded that the expert’s opinion did not pass muster under F.R.E. 702 and Daubert. Opining that Mr. Port would have lost weight if the necessity of a lung transplant had been explained to him sooner, Judge Rice explained, was “speculative, at best, and [was] contradicted by Mr. Port’s express unwillingness to join a weight loss program when later prompted by medical professionals.” Having nixed the estate’s only expert, Judge Rice entered summary judgment for the VA.

The case is Estate of Ricky Allan Port v. United States, Case No. 17-CV-0280-TOR. The United States was represented by Joseph Derrig and Rudy Verschoor of the U.S. Attorney’s Office.

Declaratory judgment action concerning FLSA exemption dismissed on ripeness grounds

It’s fitting that our first-ever post is devoted to a case that was dismissed for lack of federal jurisdiction. The court’s decision serves as a reminder that the cases featured in this blog owe their federal existence to Article III of the U.S. Constitution and its “case or controversy” requirement.

The Spokane Valley Fire Department and its labor union, IAFF Local 3701, have been in the process of negotiating a new collective bargaining agreement since 2016. In 2017, the parties reached an impasse over whether the Fire Department’s battalion chiefs and fire marshals are exempt from certain wage and hour provisions of the Fair Labor Standards Act (FLSA). The battle lines were drawn as you might expect: the Fire Department argued that the battalion chiefs and fire marshals were exempt (and therefore not entitled to overtime pay); Local 3701 countered that these employees did not meet the criteria for the exemptions.

The Fire Department sought declaratory relief under Declaratory Judgement Act, urging the court to weigh in while the parties were still locked in contract negotiations. Local 3701 moved to dismiss the case for lack of an Article III case or controversy.

In a decision issued on April 18, Judge Mendoza sided with Local 3701 and dismissed the case on ripeness grounds. In Judge Mendoza’s view, the Fire Department was effectively seeking an advisory opinion on an issue that was “distant and uncertain.” Given that the parties might still reach an agreement on the exemption question during the course of their ongoing negotiations, he reasoned, there was no Article III case or controversy for the court to adjudicate.

The case was dismissed without prejudice, leaving the Fire Department free to invoke the court’s jurisdiction once again if the ripeness calculus changes.

The case is Spokane Valley Fire Department v. International Association of Fire Fighters AFL-CIO Local 3701, Case No. 17-CV-00250-SMJ. Local 3701 was represented by Mike McMahon, Ron Van Wert and Megan Clark of Etter McMahon Lamberson Van Wert & Oreskovich.