Latest 4 Cases: In re National Prescription Opiate Litigation (Civil Procedure), Smith v. Cook (Civil Rights), Tackett v. Trierweiler (Civil Rights)

Bringing Home the Supply Chain

SAMUEL ESTREICHER, JONATHAN F. HARRIS

NYU law professors Samuel Estreicher and Jonathan F. Harris describe how the COVID-19 pandemic is forcing the United States to confront the problem of unchecked globalization. Estreicher and Harris argue that once the pandemic subsides, U.S. policymakers should, as a matter of national security, mandate that a minimum percentage of essential supplies be manufactured domestically.

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Unconstitutional Chaos: Abortion in the Time of COVID-19

JOANNA L. GROSSMAN, MARY ZIEGLER

SMU Dedman School of Law professor Joanna L. Grossman and Florida State University law professor Mary Ziegler discuss the abortion bans implemented in several states in response to the COVID-19 pandemic. Grossman and Ziegler explain why the bans are constitutional and comment on the connection between the legal challenges to those bans and the broader fight over abortion rights.

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In re National Prescription Opiate Litigation

Docket: 20-3075

Opinion Date: April 15, 2020

Judge: Raymond M. Kethledge

Areas of Law: Civil Procedure, Drugs & Biotech

The counties filed suit in the Northern District of Ohio against manufacturers and distributors of prescription opioids. More than 2,700 other opioid cases have been transferred there by the Judicial Panel on Multidistrict Litigation (MDL). The first Case Management Order put the Counties’ cases on “Track One,” with a March 2019 trial date, setting a deadline in April 2018 for the Counties to amend their complaints. The Counties then asserted claims against 12 Pharmacies as “distributors” of pharmaceuticals to their own retail pharmacies, expressly declining to bring "dispenser" claims. Distributors ship pharmaceuticals wholesale; dispensers fill prescriptions. The Track One parties engaged in massive discovery. Rather than ruling on summary judgment motions, the district court granted the Counties’ motion to sever all but one Pharmacy (Walgreens) from Track One. Trial had been rescheduled for October 2019. The 11 Pharmacies settled with the Counties, agreeing to pay $260 million. The district court canceled the trial, then allowed the Counties to amend their complaints to add “dispenser” claims and ordered discovery to proceed anew. The court refused to rule on dismissal motions and ordered the Pharmacies to produce data on every prescription that they had filled for any opioid medication, anywhere in the U.S., dating back to 2006. The Sixth Circuit ordered that the amendments to the complaints be stricken, noting that the Federal Rules of Civil Procedure apply in MDL under 28 U.S.C. 1407 and had been disregarded in several instances.

Smith v. Cook

Docket: 17-4118

Opinion Date: April 15, 2020

Judge: Larsen

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

A masked gunman attempted to rob a Columbus Ohio restaurant. Employees escaped and flagged down a police officer. A man, matching the robber's description, discarded distinctive clothing items as he ran away. A pocket contained a handgun matching that used in the robbery. Police apprehended Smith nearby. DNA material matching Smith was found on the discarded items. Smith retained attorney Armengau. Detectives connected Smith to earlier restaurant robberies with “a strikingly consistent method of operation.” They requested cell phone records for a phone number that Smith had given to his probation officer; Smith’s phone had been used near and at the approximate time of most of the robberies. Smith was charged with 18 robberies. Smith’s attorney, Armengau, was indicted for sex crimes. The judge handling Smith’s case recused himself. At Smith’s request, Armengau continued to represent Smith; Armengau’s criminal charges were unknown to the jury. Smith received three continuances. During trial, the prosecutors offered a plea deal for 27 years’ imprisonment. Armengau conceded to the court that he did not share the offer because prior discussions with Smith led Armengau to believe that a 27-year sentence would not be accepted. Smith was present and did not object. The prosecutors stated that the offer would remain open. Smith never asked to discuss a plea. The jury convicted Smith for 12 robberies. With prior-offender gun charges, the judge sentenced Smith to 84 years’ imprisonment. The Sixth Circuit affirmed the denial of habeas relief, rejecting ineffective assistance and Confrontation Clause claims, based on the Armengau’s stipulation to limit the number of trial witnesses, his failure to communicate the plea offer, and the “conflict” posed by his own criminal charges.

Tackett v. Trierweiler

Docket: 19-1037

Opinion Date: April 15, 2020

Judge: Ronald Lee Gilman

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

In a 2006 Ypsilanti drive-by shooting, two teenagers, inside a mobile home, were killed. Four people, including Tackett, were charged. Tacket was found guilty on two counts of first-degree murder and two counts of possessing a firearm during the commission of a felony. He was sentenced to life imprisonment without parole. After unsuccessful state-court proceedings, Tackett filed a federal habeas corpus petition. The Sixth Circuit affirmed the denial of relief. Even assuming that Tackett’s gun misfired, the jury could have reasonably concluded that Tackett was guilty of first-degree murder under an aiding-and-abetting theory. The facts supported an inference of an intent to kill and there was more than enough time for the shooters to take a “second look.” There was evidence that premeditation and deliberation took place during that time. Tackett provided assistance to the other shooters, knowing all the facts known to the shooters. The court rejected Tackett’s argument that he could have been convicted as a principal, or as an aider and abettor and that the trial court erred by failing to give the jury a special instruction that they had to unanimously agree as to which of these theories was the basis for their verdict. There was no constitutional problem in the fact that two other defendants were convicted of second-degree murder while Tackett was convicted of first-degree murder. The court also rejected ineffective assistance claims.

Daunt v. Benson

Dockets: 19-2420, 19-2377

Opinion Date: April 15, 2020

Judge: Karen Nelson Moore

Areas of Law: Election Law

Electors voted to establish a commission of citizens to adopt district boundaries for the Michigan Senate, Michigan House of Representatives and U.S. Congress, every 10 years. Article IV, section 6 of the amended Michigan Constitution establishes the membership criteria for this “independent citizens redistricting commission,” excluding eight classes of individuals with certain current or past political ties. A final decision to adopt a redistricting plan requires a majority vote, including at least two commissioners who affiliate with each major party, and at least two who do not affiliate with either party. Commission members may not discuss redistricting matters outside of an open meeting, except under specific circumstances. The Republican Party and individuals sought a preliminary injunction, alleging that the eligibility criteria violated the First and Fourteenth Amendments; that allowing applicants to self-identify as Republicans violated the Party’s freedom of association; that the Commission’s composition was viewpoint-discriminatory; and that the speech provision violated the First Amendment. The Sixth Circuit affirmed the denial of relief. The Amendment’s eligibility criteria do not burden the plaintiffs based on their status as Republicans. Even if the criteria imposed a moderate burden on First Amendment activities, they would satisfy a “flexible analysis.” There is no constitutional limitation on Michigan making the forbearance from certain activities a condition of sitting on the commission. The eligibility criteria are essential to the definition of this Commission and its independence from partisan meddling. The Party does not have a First Amendment right to control the self-affiliation of commissioner-applicants. Although the speech provision does burden the commissioners’ freedom to speak about redistricting, this burden is outweighed by Michigan’s more-than-adequate justifications. Michigan’s effort to ensure that a sizeable minority of commission members are non-affiliated does not violate the First Amendment.