DENVER - A worker who was injured while working, suffered permanent restrictions and was moved to a new job because of those restrictions failed to prove that his firing, after he repeatedly called out sick from his new position, was due to discrimination and retaliation, the 10th Circuit U.S. Court of Appeals ruled April 15, affirming the trial court's decision (Moe Aman, f/k/a/ Mohamed Aman v. Dillon Companies, Inc., a Kansas corporation, d/b/a King Soopers, Nos. 14-1461 and 15-1054, 10th Cir.; 2016 U.S. App. LEXIS 6886).
DETROIT - An expert may not testify regarding source code similarity between software programs in a breach of licensing agreement lawsuit, a Michigan federal judge ruled April 14, finding that the topic was already adjudicated at summary judgment (Ford Motor Co. and Ford Global Technologies LLC v. ThermoAnalytics, Inc., No. 14-13992, E.D. Mich.; 2016 U.S. Dist. LEXIS 50019).
NEW ORLEANS - Allegations of a subcontractor's defective work in the reconstruction of a high school after Hurricane Katrina raise the possibility of an insurer's duty to defend, a Louisiana federal judge ruled April 15, denying an insurer's motion to dismiss breach of contract and bad faith claims (Gootee Construction, Inc. v. Travelers Property Casualty Company of America, No. 15-3185, E.D. La.; 2016 U.S. Dist. LEXIS 50911).
NEWARK, N.J. - Plaintiffs co-liaison counsel in the Durom hip multidistrict litigation on April 18 told the MDL judge that the proposed settlement allows defendant Zimmer Inc. to keep a discovery stay in place as long as it wants and threatens nonparticipating plaintiffs with dismissal (In Re: Zimmer Durom Hip Cup Products Liability Litigation, MDL Docket No. 2158, No. 09-4414, D. N.J.).
MARSHALL, Texas - Competing motions for judgment as a matter of law (JMOL) by a patent owner and defendant Apple Inc. were denied by a Texas federal judge on April 18, who instead upheld a November jury verdict that rejected Apple's assertions of invalidity, but also deemed Apple not liable for infringement of five patents (ContentGuard Holdings Inc. v. Apple Inc., No. 13-1112, E.D. Texas; 2016 U.S. Dist. LEXIS 51274).
SAN FRANCISCO - An Arizona federal judge erroneously deemed six counts of false advertising under the Lanham Act preempted by the Food, Drug & Cosmetic Act (FDCA), as amended by the Dietary Supplement Health Education Act (DSHEA), the Ninth Circuit U.S. Court of Appeals ruled April 14 (ThermoLife International LLC v. Gaspari Nutrition Inc., No. 14-15180, 9th Cir.; 2016 U.S. App. LEXIS 6807).
PASADENA, Calif. - A church bookkeeper, whose position was reduced to part-time after she returned from a lengthy medical leave, failed to show that a discriminatory reason more likely than not caused the change to her hours, the Ninth Circuit U.S. Court of Appeals ruled April 14 (Alice Mendoza v. The Roman Catholic Archbishop of Los Angeles, No. 14-55651, 9th Cir.; 2016 U.S. App. LEXIS 6768).
CHICAGO - Findings that a copyright complaint must be dismissed for falling outside the three-year statute of limitations proscribed by the Copyright Act were affirmed April 15 by the Seventh Circuit U.S. Court of Appeals, which joined with several other circuit courts in holding that a claim for copyright ownership accrues when a dispute over ownership becomes "explicit" (Consumer Health Information Corp. v. Amylin Pharmaceuticals Inc., et al., No. 14-3231, 7th Cir.; 2016 U.S. App. LEXIS 6866).
NEW HAVEN, Conn. - A reinsurer told a federal court in Connecticut on April 14 that its reinsurer's motion for reconsideration of the court's order that the reinsurer post prepleading security does not meet the standards of reconsideration motions (Select Insurance Company v. Excalibur Reinsurance Corporation, f/k/a PMA Capital Insurance Company, No. 15-cv-00715, D. Conn.).
SAN FRANCISCO - A California federal judge on April 14 refused to dismiss a breach of contract claim against an excess insurer and bad faith and punitive damages claims against a primary insurer in a products liability coverage dispute involving the insured's da Vinci Surgical System product (Intuitive Surgical Inc. v. Illinois Union Insurance Co., et al., No. 15-04834, N.D. Calif.; 2016 U.S. Dist. LEXIS 51097).
TAMPA, Fla. - A Florida federal judge on April 15 remanded an insurance bad faith lawsuit to state court, ruling that insureds failed to plead an injury in fact in making their claims against an insurer over its handling of claims in a third-party lawsuit (Wright Insurance Agency Inc. v. Nationwide Mutual Fire Insurance Co., No. 15-1857, M.D. Fla.; 2016 U.S. Dist. LEXIS 50975).
RALEIGH, N.C. - A federal judge in North Carolina on April 15 partially granted an insurer's motion to dismiss counterclaims in a declaratory relief action, ruling that although insureds have failed to plead a claim for constructive fraud, dismissal of their bad faith and negligence counterclaims is not proper (IDS Property Casualty Insurance Co. v. Min Lu, et al., No. 15-561, E.D. N.C.; 2016 U.S. Dist. LEXIS 50994).
SCRANTON, Pa. - An insured has properly pleaded that his insurer unreasonably denied payment of benefits pursuant to an automobile insurance policy, a federal judge in Pennsylvania ruled April 18 in denying the insurer's motion to dismiss in an insurance breach of contract and bad faith lawsuit (Justin Linko v. Nationwide Property & Casualty Insurance, No. 15-2066, M.D. Pa.; 2016 U.S. Dist. LEXIS 51602).
DENVER - The 10th Circuit U.S. Court of Appeals on April 15 found that because an underlying claim alleged only intentional harm by an employer, there is no employers liability coverage for an underlying lawsuit arising from an employee's fatal injury (Cudd Pressure Control Inc. v. New Hampshire Insurance Co., et al., No. 14-6148, 10th Cir.; 2016 U.S. App. LEXIS 6888).
WASHINGTON, D.C. - The Food and Drug Administration said April 18 that it has withdrawn its approval of the cholesterol drugs Advicor and Simcor at the request of manufacturer AbbVie Inc. for reasons of safety and effectiveness.
SAN FRANCISCO - A judge on April 15 asked for additional briefing on how to handle differences between California consumer protection laws and those of other states in a UCL, Business and Professions Code Section 17200, et seq., suit over an alleged misrepresentations about a joint supplement (Vincent D. Mullins, et al. v. Premier Nutrition Corp., No. 13-1271, N.D. Calif.; 2016 U.S. Dist. LEXIS 51139, 2016 U.S. Dist. LEXIS 51140).
DENVER - Efforts by a group of employee benefit plans to hold accountable two individual defendants for allegedly breaching their fiduciary duties under the Employee Retirement Income Security Act were properly dismissed as time-barred by an Oklahoma federal judge, the 10th Circuit U.S. Court of Appeals concluded April 13 (Mid-South Iron Workers Welfare Plan, et al. v. Ryan Michael Harmon, et al., No. 15-6064, 10th Cir.; 2016 U.S. App. LEXIS 6775).
NEW ORLEANS - A former paralegal instructor failed to show that the reasons given for his layoff during a reduction-in-force were pretext for retaliation, the Fifth Circuit U.S. Court of Appeals ruled April 13 (Rafael Diaz v. Kaplan Higher Education, L.L.C., No. 15-50655, 5th Cir.; 2016 U.S. App. LEXIS 6720).
CHARLESTON, W.Va. - A deputy medical examiner's testimony about a victim's wounds and cause of death was relevant given that a petitioner was charged with murdering her husband by shooting him in the head, the West Virginia Supreme Court of Appeals held April 13, affirming a jury conviction of murder in the first degree without a recommendation of mercy (State of West Virginia v. Julia Surbaugh, No. 14-0890, W.Va. Sup.; 2016 W. Va. LEXIS 239).
CARSON CITY, Nev. - A Nevada Supreme Court panel on April 14 refused to vacate a man's conviction for obtaining money under false pretenses after ruling that the state presented sufficient evidence to show that the defendant had his girlfriend use his Social Security number to submit claims for unemployment (Joshua Ephraim Jones v. State of Nevada, No. 67976, Nev. Sup.; 2016 Nev. LEXIS 298).
BATON ROUGE, La. - A 2-1 panel of the First Circuit Louisiana Court of Appeal on April 15 affirmed a trial court judge's ruling finding that a couple's breach of contract lawsuit against a contractor they initially hired to build their home was perempted by the New Home Warranty Act (NHWA) (Barbara Siragusa, et al. v. Chad Bradley Bordelon, et al., No. 2015 CA 1372, La. App., 1st Cir.; 2016 La. App. LEXIS 733).
McALLEN, Texas - A federal judge in Texas on April 13 granted a motion for summary judgment in favor of an insurer and others, ruling that no breach of contract occurred because the insurer complied with the terms of an appraisal provision under a property insurance policy and, thus, the insurer could not have acted in bad faith (Mark Dizdar, et al. v. State Farm Lloyds, et al., No. 14-514, S.D. Texas; 2016 U.S. Dist. LEXIS 49839).
OKLAHOMA CITY - An Oklahoma federal judge on April 15 dismissed a plaintiff's neurostimulator complaint after finding that she failed to sufficiently plead facts to show that her claim parallels federal requirements and is not preempted (Susan Nevolas v. Boston Scientific Corporation, No. 15-894, W.D. Okla.; 2016 U.S. Dist. LEXIS 50654).
CHICAGO - A Seventh Circuit U.S. Court of Appeals panel on April 14 found that plaintiffs' claims of increased risks of fraudulent charges and identify theft, due to the purported theft of their personally identifiable information (PII) in a breach of a restaurant chain's network, constitute sufficiently concrete and immediate damages to support their putative class action, leading the panel to vacate a lower court's dismissal of the lawsuit (John Lewert v. P.F. Chang's China Bistro Inc., No. 14-3700, 7th Cir.; 2016 U.S. App. LEXIS 6766).
NEW ORLEANS - An insured's failure to promptly give notice of hailstorm damage prejudiced an insurer's investigation, the Fifth Circuit U.S. Court of Appeals ruled April 14, affirming the entry of summary judgment to the insurer on breach of contract claims (Hamilton Properties, et al. v. American Insurance Co., et al., No. 15-10382, 5th Cir.; 2016 U.S. App. LEXIS 6818).