Justia U.S. 7th Circuit Court of Appeals Opinion Summaries

Owens began using Testim, a topical gel containing 1% testosterone, in July 2011 when his doctor diagnosed him with hypogonadism. Owens used Testim sporadically. Although the medication guide directs users to apply a full tube of Testim to the shoulders and arms, Owens would apply part of a tube to his thighs and stomach. In July 2013, Owens was admitted to a hospital for pain in his leg. An ultrasound revealed blood clots. He was diagnosed with deep vein thrombosis (DVT). Owens was treated with blood thinners and released the following day. Owens sued, asserting strict liability, negligence, fraud, and negligent misrepresentation under Kentucky law. Each claim requires expert testimony to establish causation. Owens’s case was selected for a bellwether trial in multidistrict litigation. Owens planned to rely on testimony by Dr. Abbas that Testim had caused Owens’s DVT. That opinion assumed that Owens was applying the prescribed dose in the proper manner. When asked during his deposition about hypothetical cases that resembled Owens’s use of Testim, Abbas had no opinion. The district court excluded the testimony and granted Auxilium summary judgment. The Seventh Circuit affirmed. The court properly applied the Daubert framework when excluding Abbas’s testimony. It did not abuse its discretion by concluding that the testimony did not fit the facts of Owens’s case or by failing to consider an argument Owens never presented. Without expert testimony on causation, Owens’s claims necessarily fail. View "Owens v. Auxilium Pharmaceuticals, Inc." on Justia Law

Dalton’s doctor implanted Teva’s Intrauterine Device (IUD) in her uterus for long-term birth control. Dalton became dissatisfied with the IUD and asked her doctor to remove it. The doctor did so by grasping its strings with a forceps and pulling the IUD down. A piece broke off either before or during the removal and lodged in her uterus. Dalton’s doctor advised that removing the remaining portion of the IUD would require a hysterectomy. Dalton sued Teva, asserting “strict liability,” “strict products liability failure to warn,” and “manufacturer’s defect.” Dalton failed to timely disclose any expert witness and serve the expert witness report required by FRCP 26(a)(2). The district court granted Teva summary judgment. The Seventh Circuit affirmed. Claims under the Indiana Products Liability Act, which governs all consumer actions against a manufacturer for physical harm caused by a product, require proof that the injury was proximately caused by whatever defect or breach of duty underlies the claim. The Act requires expert testimony when an issue “is not within the understanding of a lay person.” Dalton did not establish how a lay juror faced with a broken IUD could identify the cause of the break—maybe the IUD was damaged after coming into the possession of the physician, maybe human error resulted in damage during implantation or removal. This case is far removed from situations in which a causation issue is so obvious that a plaintiff may forgo expert testimony. View "Dalton v. Teva North America" on Justia Law

Derek Boogaard was a professional hockey player with the Minnesota Wild. Team doctors repeatedly prescribed Derek pain pills for injuries. He became addicted. In 2009 the NHL placed Derek into its Substance Abuse and Behavioral Health Program. Derek was checked into a rehabilitation facility and was later subject to a mandatory “Aftercare Program,” which required him to refrain from using opioids and Ambien and to submit to random drug testing. Derek joined the New York Rangers in 2010 and began asking trainers for Ambien. Derek relapsed. NHL doctors made Derek’s situation worse by violating multiple conditions of the Aftercare Program. Eventually, Derek overdosed and died. Derek’s estate sued, alleging that the NHL had failed to prevent the over-prescription of addictive medications, had breached its voluntarily undertaken duty to monitor Derek’s drug addiction, was negligent in monitoring Derek for brain trauma, and negligently permitted team doctors to inject Derek with an intramuscular analgesic. The court found some of the claims, founded on the parties’ collective bargaining agreement, were preempted by the Labor Management Relations Act and granted the NHL summary judgment. A second amended complaint was dismissed on grounds that Minnesota law applied and required a wrongful-death action to be brought by a court-appointed trustee. The Seventh Circuit affirmed, holding that the Boogaards had forfeited their claims by failing to respond to the NHL’s argument that the complaint failed to state a claim under the law of any state. View "Boogaard v. National Hockey League" on Justia Law

Mimms, an Indiana-licensed physician, prescribes controlled substances to patients. Several times, CVS Pharmacy employees informed Mimms’s patients that they would not fill their prescriptions. Mimms sued, alleging defamation. CVS argued that Mimms had no evidence that the speakers knew their statements were false. The court granted summary judgment as to five statements and denied judgment for four statements, reasoning there was a material question of fact regarding whether the speakers knew that their statements were false, given evidence that CVS’s corporate office had investigated Mimms and had not stopped stores from filling his prescriptions. The court rejected CVS’s argument that knowledge held by the corporate office could not be imputed to the speakers. The statements were: “CVS doesn’t fill Dr. Mimms’[s] prescriptions or prescriptions for any other pill mills.” “Mimms went to jail.” “Mimms has been … or will be arrested.” “Mimms is under DEA investigation. A jury found CVS liable for defamation per se and awarded Mimms $1,025,000. The Seventh Circuit reversed. Mimms proffered no evidence that the first three statements were made with actual malice. CVS is entitled to a new trial on the fourth statement; the court should have allowed CVS to present evidence that Mimms was the subject of a DEA investigation and regarding Mimms’s reputation. In a defamation per se case, damage to reputation is presumed but evidence regarding the extent of the harm to his professional reputation was critical for minimizing damages. View "Mimms v. CVS Pharmacy, Inc." on Justia Law

Austin spent time at a Hebron, Indiana Walgreens store, walked toward the registers, then slipped and fell. Austin did not see anything on the floor that would have caused the fall and testified: “my right foot hit something wet, and all of my weight landed on my left knee. I went down, all my weight on my left knee, and then immediately fell backwards.” People who came to Austin’s assistance did not see anything on the floor. The assistant manager testified that he was not aware of any water on the floor before Austin’s fall. Austin’s friend arrived seven minutes after Austin fell, observed “water everywhere,” and took pictures showing puddles of water in the area where Austin had fallen. Paramedics recorded that Austin told them she slipped on a wet floor. At the medical center, the doctor noted that Austin told him “she slipped on water.” Austin suffered a broken kneecap. A magistrate struck her statements to the paramedics and the doctor as inadmissible hearsay and granted Walgreen summary judgment. The Seventh Circuit affirmed. Even assuming Austin has sufficient evidence that there was a hazard on the floor, she did not present any evidence that Walgreen had actual or constructive knowledge of it, so she did not establish a breach of the duty of care. View "Austin v. Walgreen Co." on Justia Law

Hyland was a passenger in a car owned by Perkins and driven by Smith, age 16. Smith smashed the car into two parked vehicles, seriously injuring Hyland. Smith was convicted of aggravated reckless driving. Neither Smith nor her parents had auto insurance. Perkins had insurance with Liberty Mutual, covering her family, including her daughter Risby and anyone driving the car with the family’s permission. Smith told Liberty Mutual that Risby gave her the keys during a party; Risby denied doing that and said that she gave the keys to “Rob,” who was never identified. The police reported that Smith told many incompatible stories. Liberty Mutual would not provide a defense or indemnity. Smith defaulted. A state court entered a $4.6 million judgment. Smith assigned to Hyland whatever claim she had against Liberty Mutual. The district court concluded that Liberty Mutual’s failure either to defend or to seek a declaratory judgment of non-coverage violated Illinois law, making it liable for the entire judgment, although the policy provided only $25,000 per person in coverage. The Sixth Circuit vacated and remanded for the entry of a judgment for $25,000 plus interest; damages for a breach of the duty to defend are measured by the consequences proximately caused by the breach. The maximum loss caused by this failure to defend is $25,000 View "Hyland v. Liberty Mutual Fire Insurance Co." on Justia Law

Joas underwent knee replacement at a Wisconsin hospital and received a Zimmer NexGen Flex implant. Within a few years, he began experiencing pain in his new knee. X-rays confirmed that the implant had loosened and required a surgical fix. Joas brought multiple claims against Zimmer. His case was transferred to a multidistrict litigation, where it was treated as a bellwether case. Applying Wisconsin law, the presiding judge granted Zimmer summary judgment. The Seventh Circuit affirmed, declining to reinstate a single claim based on a theory of inadequate warning. The court predicted that the Wisconsin Supreme Court would follow the majority of states and adopt the “learned intermediary” doctrine, which holds that the manufacturer of a medical device has no duty to warn the patient as long as it provides adequate warnings to the physician. In addition, Joas has not identified any danger that Zimmer should have warned him about. Joas has no evidence to support causation. Joas did not select the NexGen Flex implant, so the information would not have caused him to change his behavior. His doctor selected the product, making his decision based on his own past experience, not on any marketing materials or information provided by Zimmer. View "Joas v. Zimmer, Inc." on Justia Law

In 2006, Moreno fell off scaffolding and landed on his back while working. An orthopedist found a soft tissue injury but no signs of fracture. He continued to feel significant pain. A follow-up test revealed acute lumbar radiculopathy—lower back pain caused by compression, inflammation or injury to a spinal nerve root. Moreno also is diabetic, has high blood pressure, and is obese. Moreno sought treatment from a psychologist, who reported that Moreno manifested depressed mood, irritability, memory difficulties, inability to concentrate, and an ongoing inability to sleep, sometimes for days. Moreno took several medications. In 2007, Moreno sought Supplemental Security Income and Disability Insurance Benefits. An ALJ affirmed the denial of his application. In the district court, the parties agreed to a remand to a different ALJ, who concluded that Moreno was not disabled although he was suffering from severe impairments and could not perform his past work as a drywall taper. The Seventh Circuit reversed. The ALJ improperly relied on an outdated assessment although later evidence containing new, significant medical diagnoses reasonably could have changed the reviewing physician’s opinion. Doctors’ notes set forth problems with Moreno becoming distracted, “spacing out,” and experiencing difficulties concentrating; these limitations were not included in the hypothetical question posed to the vocational expert. View "Moreno v. Berryhill" on Justia Law

In 2006, Moreno fell off scaffolding and landed on his back while working. An orthopedist found a soft tissue injury but no signs of fracture. He continued to feel significant pain. A follow-up test revealed acute lumbar radiculopathy—lower back pain caused by compression, inflammation or injury to a spinal nerve root. Moreno also is diabetic, has high blood pressure, and is obese. Moreno sought treatment from a psychologist, who reported that Moreno manifested depressed mood, irritability, memory difficulties, inability to concentrate, and an ongoing inability to sleep, sometimes for days. Moreno took several medications. In 2007, Moreno sought Supplemental Security Income and Disability Insurance Benefits. An ALJ affirmed the denial of his application. In the district court, the parties agreed to a remand to a different ALJ, who concluded that Moreno was not disabled although he was suffering from severe impairments and could not perform his past work as a drywall taper. The Seventh Circuit reversed. The ALJ improperly relied on an outdated assessment although later evidence containing new, significant medical diagnoses reasonably could have changed the reviewing physician’s opinion. Doctors’ notes set forth problems with Moreno becoming distracted, “spacing out,” and experiencing difficulties concentrating; these limitations were not included in the hypothetical question posed to the vocational expert. View "Moreno v. Berryhill" on Justia Law

Mann attacked his coworker, Baylay, a British citizen. The men, members of an Etihad Airways (incorporated in Abu Dhabi) flight crew, were at a Chicago hotel on a layover. Baylay sued Etihad, Mann, and the hotel’s corporate entities. The district court dismissed Baylay’s claims against Etihad, stating that they should be heard by the Illinois Workers’ Compensation Commission, and later dismissed Baylay’s remaining claims, reasoning that it had no original jurisdiction over the claims and declining to exercise its supplemental jurisdiction. The Seventh Circuit affirmed. The Foreign Sovereign Immunities Act imposes liability on the foreign state “in the same manner and to the same extent as a private individual under like circumstances,” 28 U.S.C. 1606. If the foreign state is not immune from suit, “plaintiffs may bring state law claims that they could have brought if the defendant were a private individual.” Baylay failed to show that his injuries would not be compensated under Illinois law. After Etihad’s dismissal, Baylay’s remaining claims included state-law claims against Mann and the hotel’s corporate entities. The corporate entities’ third-party contribution claims are entirely dependent on the resolution of the underlying state-law negligence claim against them. Baylay’s state-law claims substantially predominate; the district court’s decision to decline to exercise supplemental jurisdiction was not an abuse of discretion in light of 28 U.S.C. 1367(c). View "Baylay v. Etihad Airways P.J.S.C." on Justia Law