Petitions of the week

Cancer victims ask court to untangle “finality trap”

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Litigants in federal courts may unwittingly find themselves in a “finality trap,” a tricky procedural scenario in which they are unable to appeal some of their claims. This week, we highlight petitions that ask the court to consider, among other things, whether the finality trap is consistent with federal procedural rules.

One commentator has called cases that fall into the finality trap “zombie actions.” They arise in cases involving multiple claims for relief. Under federal law, courts of appeals can only review “final decisions” of district courts. This means that district courts must resolve every claim in a case before it is ready for appeal. But litigation moves slowly, and a district court might rule on some claims before others – for example, by ruling for the defendant on some but not all of the claims. If time is of the essence, or if a plaintiff cares more about claims she loses quickly, she might choose to abandon her pending claims, voluntarily dismiss the case, and attempt to appeal the district court’s decision on the resolved claims.

In some courts of appeals, this decision is considered final because the district court has ruled on every claim left in the suit. In others, however, it is not yet considered final because the plaintiff voluntarily abandoned her unresolved claims and could, in theory, bring them again later. And there the finality trap springs: The court of appeals will hold that it cannot review the district court’s decision on the plaintiff’s resolved claims. And because she dismissed her case in the district court, while she might be able to relitigate her unresolved claims, she will generally be barred from including again the claims she already lost.

Marilyn Williams is one of thousands of Americans who developed cancer after taking Zantac, a medication advertised to treat heartburn. She went to court filed a lawsuit in federal court in Alabama against Boehringer Inhelheim Pharmaceuticals, the manufacturer of Zantac, and against Walgreens, which sold the drug, alleging that Zantac caused her cancer. Among a number of other claims, Williams argued that Zantac was misbranded in violation of federal law because, when used as directed, its active ingredient breaks down into a carcinogen in the body.

Williams’ lawsuit was transferred, along with other similar cases involving Zantac, to a federal district court in Florida. The district court dismissed the misbranding claims with prejudice – that is, permanently – because the Food and Drug Administration had signed off on Zantac’s label, and federal law bars drug manufacturers from rebranding labels approved by the FDA. The court instructed the plaintiffs to sharpen their other claims.

Unwilling to wait for the litigation to unfold, Williams filed a new complaint that contained only the misbranding claim. She argued that, regardless of whether Boehringer Ingelheim could modify Zantac’s FDA-approved label under federal law, the company could still be held liable for manufacturing a defectively designed drug under state law. Williams then voluntarily dimissed her case and appealed the district court’s misbranding decision.

The U.S. Court of Appeals for the 11th Circuit dismissed Williams’ lawsuit. Because she had voluntarily abandoned her other claims, the court of appeals concluded, she could in theory relitigate them, and thus the district court’s decision was not yet final. Accordingly, the 11th Circuit held that it did not have the power to hear her appeal.

In Williams v. Boehringer Ingelheim Pharmaceuticals, Inc., Williams asks the court to grant review and reverse the 11th Circuit’s ruling. She argues that nearly all of the courts of appeals have weighed in on the finality issue, and they are deeply divided. Although the 11th Circuit subjects unwary plaintiffs to the finality trap, Williams contends, the majority of circuits to have taken a stance on the issue would have allowed her appeal to move forward.

A list of this week’s featured petitions is below:

BASF Metals Limited v. KPFF Investment, Inc.
23-232
Issue: Whether due process permits a court to exercise specific personal jurisdiction over a defendant based on the forum contacts of an alleged co-conspirator, even when the defendant did not direct, control, or supervise the activities of that alleged co-conspirator.

Barco v. Witte
23-251
Issue: Whether a habeas action brought to challenge civil immigration detention qualifies as “any civil action” within the meaning of the Equal Access to Justice Act.

Lewis County, Kentucky v. Helphenstine
23-259
Issue: Whether a pretrial detainee alleging deliberate indifference must prove the defendant actually knew of a significant risk of harm, or instead must prove only that the defendant objectively should have known of such a risk.

Williams v. Boehringer Ingelheim Pharmaceuticals, Inc.
23-267
Issue: Whether an interlocutory ruling that dismisses some (but not all) of a plaintiff’s claims with prejudice become an appealable “final decision” if the plaintiff voluntarily dismisses her action under Federal Rule of Civil Procedure 41(a).

County of Tulare, California v. Murguia
23-270
Issue: Whether, and under what circumstances, a state’s failure to protect an individual who is not in state custody from violence by a private person constitutes a violation of the due process clause of the 14th Amendment.