Friday, May 24, 2019

Fed Courts Exam 2019: Pharma Litigation and State Habeas

by Michael C. Dorf

Per my usual custom, I am posting the exam I administered to my Federal Courts students. It was an 8-hour open-book take-home. Blog readers should feel free to spend more (or less) time on it. Submit answers (which I won't grade) in Comments. I apologize that this exam isn't as funny as some of my others (though it does contain the obligatory Trump tweet, complete with misspellings).

Question 1

            As you may know, in late March of this year, Purdue Pharma Inc., maker of Oxycontin, agreed to pay the state of Oklahoma $270 million to settle the state’s lawsuit alleging that Purdue’s actions fueled the opioid addiction crisis, in turn imposing health care costs on the states. As of late March of this year, over 1600 lawsuits against Purdue were pending around the country.

(Now for the made-up part.)

Congress passes and President Trump signs the Opioid Pusher Responsibility Act (“OPRA”) of 2019. It provides in relevant part:

            Section 1: Opioid addiction is a national crisis calling for a national rather than piecemeal response.

            Section 2: The federal district courts shall have exclusive jurisdiction to hear any and all claims by any person who has suffered injury as a result of addiction to OxyContin or any other opioid manufactured by Purdue Pharma Inc. Such exclusive jurisdiction shall extend to suits against Purdue Pharma Inc. and any member of the Sackler family holding shares or any other beneficial interest in Purdue Pharma Inc.

            Section 3: Notwithstanding any other provision of law, no court in the United States shall have jurisdiction to entertain an appeal, mandamus action, or any other attempt to obtain appellate relief from any ruling of a district court adverse to the defendant or defendants in any action brought under Section 2 of this Act.

            Section 4: If any provision or application of this Act shall be found unconstitutional, it shall be severed from the remainder of the Act and/or other applications. 

            Stephanie Lincoln was injured in an automobile accident in 2014. To treat her back pain, doctors prescribed Oxycontin. Lincoln became addicted to opioids, lost her job as an IT consultant, and neglected her two young children and her husband, James Perlmutter. Consequently, Perlmutter divorced Lincoln in July 2016. In August 2018, Perlmutter remarried. Stephanie Lincoln died of a heroin overdose in October 2018. She was 36 years old.

            The day after the enactment of OPRA, Perlmutter, who resides in Dallas, Texas, sues Purdue Pharma Inc. and all of the members of the Sackler family who own shares in the company in the Federal District Court for the Northern District of Texas. As the basis for jurisdiction, he cites only Section 2 of OPRA. His prayer for relief seeks $5 million for “the financial hardship and emotional suffering defendants inflicted on me and my children.”   
            In their answer, the defendants argue that the district court lacks subject matter jurisdiction. They aver that there is not complete diversity, because defendant Richard Sackler resides in Texas. They argue further that Section 2 of OPRA violates Article III. The defendants also raise as a defense that OPRA violates the Bill of Attainder Clause of Article I, Section 9, by singling out one company and one family. They point to anti-Purdue and anti-Sackler statements in the Congressional Record as well as the following tweet from President Trump that accompanied his signing of OPRA:

(a)  Does the district court have jurisdiction? In answering this question, consider what body of substantive law applies if the court does have jurisdiction.

(b)  For this sub-part only, assume that the federal district court finds in favor of jurisdiction and rejects the Bill of Attainder objection. The case proceeds to trial and Perlmutter wins a jury award of $3 million. Will the defendants be able to obtain review of any aspects of the judgment by a federal appeals court or the US Supreme Court on the ground that OPRA § 3 is invalid as applied or on its face?

Question 2

            Dexter Defenbach was charged with first-degree burglary for breaking into the Portland, Oregon home of Victoria Vincent in June 2017. At trial in state court the evidence against Defenbach consisted of surveillance camera footage from outside Vincent’s house and the fact that, when he was arrested, Defenbach had in his possession a gold pocket watch that, according to Vincent, was one of the items missing from her home after the burglary.

Defenbach put on an alibi defense. His friend Harold Carbone testified that during the time when the figure on the video recording was observed, he and Defenbach were playing beer pong in Carbone’s basement in the Portland suburb of Beaverton. The defense attorney also tried to call Defenbach’s mother to testify that the pocket watch found on his person was a family heirloom that had previously belonged to her father, but the trial judge disallowed her testimony under Oregon Rule of Evidence 403 on the ground that despite the testimony’s “marginal relevance,” its consideration would “confuse the issues and result in undue delay.” Defenbach did not testify. Defenbach’s defense attorney argued to the jury in closing that the video was too dark and grainy to positively identify Defenbach in it and that therefore there was reasonable doubt about who committed the burglary.

The jury deliberated for three hours before sending a note to the judge saying “we are hopelessly deadlocked.” The judge instructed the jury to continue to deliberate. After another two hours, the jury returned a verdict of guilty by a vote of 10-2. At the time, Oregon was one of two states that permitted non-unanimous juries in felony criminal trials. The judge then sentenced Defenbach to five years in prison.

On direct appeal, Defenbach’s attorney argued that the judge’s decision to exclude Defenbach’s mother’s testimony was reversible error. He also argued that the use of a non-unanimous jury was unconstitutional. The Oregon Court of Appeals rejected both grounds for appeal. Its opinion stated:

Trial judges have broad discretion to make admissibility determinations. We cannot say on the basis of the cold record that it was clear error or an abuse of discretion to disallow the proffered evidence.

Defendant does not clearly state whether he is arguing that non-unanimous juries violate the US or Oregon constitution, nor did he timely raise this objection in the trial court. Nonetheless, we can readily dispose of the claim because it so clearly lacks merit.  See Or. Const. Art. I, § 11; Apodaca v. Oregon, 406 U.S. 404 (1972).

The Oregon Supreme Court then denied discretionary review.

As you know, the US Supreme Court has on its docket for next term the case of Ramos v. Louisiana, which poses the question whether to overrule Apodacaand hold that the Sixth Amendment, as applied to the states via the Fourteenth Amendment, forbids the use of non-unanimous juries in serious criminal cases.

Assume for the purposes of this question that in 2020 the Supreme Court indeed holds that non-unanimous juries violate the Sixth Amendment as incorporated against the states via the Fourteenth Amendment. Assume also that the SCOTUS opinion does not say anything at all about retroactivity or non-retroactivity in its Ramos opinion.

FollowingRamos, Defenbach files a petition for a writ of habeas corpus in state court in Oregon. He relies on Ramosand, in addition, attaches an affidavit from Vincent stating that she recently found her missing pocket watch under a couch cushion. Does federal law entitle Defenbach to relief?

End of Exam


Shag from Brookline said...

An 8-hour exam calls for breaks from time to time. So let's consider a potential new word for dictionaries: 'tanTrumPs" as in The Donald's reactions to Speaker Pelosi.

Consider Trump's reaction to the messing with the speed of a portion of a TV statement by Pelosi on a video to make her appear to be slurring her words, suggesting she had been drinking. And consider Facebook's rejections to removal of such videos from its site.

Lare Nite comics have frequently featured Trump slurring/mispronouncing words illustrated with videos. But we all know Trump doesn't drink. I assume these videos were not doctored and were run at regular speed. Perhaps Late Nite comics might employ the Fox method on these videos of Trump to make even more pronounced Trump's slurring on multiple occasions, with such videos then being posted on Facebook. Of course that might embarrass Zuckerberg more than Trump.

Now back to the 8-hour exam.

Shag from Brookline said...

It's time for another exam break. President Trump is in Japan and included in his agenda is a front row seat at a major Sumo wrestling match. This brought to mind video that surfaced during the 2016 campaign of a suited Trump in his WWF associated days at a wrestling match ringside body slamming a nasty wrestler to cheers of the crowd. Perhaps Late Nite comics might photoshop that video to show Trump body slamming a Sumo wrestler to show that Trump remembers December 7, 1941 (although Trump had yet to be born) or to threaten Kim Jung un in nearby North Korea.

Back to the exam.

Joe said...

The last part raises the limits of Herrera v. Collins and a constitutional claim of "actual innocence" after a conviction that is otherwise procedurally sound.

Dicta assumed for the sake of argument some right to raise such a claim, at least in a capital case, but argued there simply wasn't enough evidence there even if so assumed. The concurring opinions said as much as well. See, e.g., here:

Later opinions suggested an actual innocence claim in extreme instances had some merit though don't know how far that rule was applied to a lesser crime of this nature.

The first question has interesting connotations if it means the Supreme Court is totally cut from the picture.

Shag from Brookline said...

I took a 4:00 PM exam break to catch Maureen Dowd's NYTimes column dated May 25, 2019, "Crazy Is as Crazy Does" addressing The Donald's "tanTrumPs" soberly and thoroughly. But it wasn't a relaxing break. Perhaps getting back to the exam is the break needed to get away from The Donald, at least for the rest of the 8-hour exam. But then the reality of our apprentice president has to be faced again.

Shag from Brookline said...

Okay, the exam is over. What to do now? Watch the Sunday TV political talk shows? Will that really be a break from the 8-hour exam? Probably not. Meantime, I can't get out of my head a video photoshop of The Donald body slamming a Sumo wrester. Where's SNL when you need it?