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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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.

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.

Floyd v. Neal

Court: Kentucky Supreme Court

Docket: 2018-SC-000277-DG

Opinion Date: December 19, 2019

Judge: Lambert

Areas of Law: Civil Procedure, Medical Malpractice

The Supreme Court reversed the court of appeals' opinion concluding that the trial court's alleged error of failing to strike a juror for cause was properly preserved for appellate review, holding that a one-to-one ratio of for cause strikes to would-be peremptory strikes is required to preserve a for cause strike error for review and that Plaintiff failed to preserve the error to strike the juror for cause. After Plaintiff's medical malpractice action was dismissed Plaintiff appealed, arguing that the trial court erred by refusing to strike a juror for cause. The court of appeals held (1) the error was properly preserved, and (2) the trial court committed reversible error by failing to strike the juror for cause. The Supreme Court reversed, holding (1) the holding in Sluss v. Commonwealth, 450 S.W.3d 279 (Ky. 2014), that stating would-be peremptory strikes verbally on the record constitutes substantial compliance with Gabbard v. Commonwealth, 297 S.W.3d 844 (Ky. 2009), is overruled; (2) the number of jurors a litigant identifies on her strike sheet must be the same number of jurors the litigant originally moved to strike for cause, and failure to abide by this rule will render the error unpreserved; and (3) Plaintiff failed to preserve the error to strike the juror for cause.

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.