Current Decisions.

CIVIL PROCEDURE

Discovery Doesn't Include Order for IQ Examination

In a case alleging lead-paint injuries to an infant plaintiff, New York courts have refused to compel the mother to submit to an IQ examination during pretrial discovery. Andon v. 302-304 Mort Street Associates, 731 N.E.2d 589 (N.Y. 2000) in the New York Court of Appeals and 690 N.Y.S.2d 241 (App.Div. 1st Dep't 1999) below.

The infant's injuries were alleged to include learning disabilities, development delays in speech and language skills, and behavioral problems. Presenting the affidavit of a pediatrician who stated that maternal IQ is "extremely relevant" in assessing a child's potential cognitive development in the absence of lead exposure, the defendant moved for an order requiring the mother to submit to an IQ examination.

The Appellate Division held that the information sought in the examination was not "in controversy," was not discoverable under the New York civil practice rules, and would unnecessarily broaden the scope of the litigation. The Court of Appeals affirmed, agreeing with those reasons and pointing out that the pediatrician's affidavit contained only a conclusionary statement based on studies he didn't identify. The court emphasized, however, that its decision did not mean that IQ examinations can never be compelled as a matter of law, only that there was no abuse of discretion in denying the examination in this case.

CLASS ACTIONS

Certification Doesn't Depend on Merit or Amount of Claims

In acting on a motion to certify a suit as a class action, courts should not consider whether the cause of action lacks merit or whether the potential monetary recovery is de minimus, the California Supreme Court ruled in Linder v. Thrifty Oil Co., 2 P.3d 27 (Cal. 2000).

The plaintiff, alleging violation of California's credit card statute by a service station retailer, sought to certify her state court complaint into a class action of two classes. The first, called the "surcharge class," would be composed of more than a million California residents who during a three-year period were stuck with paying four cents more per gallon of gasoline by using their credit cards than they would have paid using cash. The second, called the "penalty class," would be persons who were presented with credit card forms with a preprinted space for cardholders to fill in their telephone numbers.

The trial court denied certification, noting as to the "surcharge class" that a California statute authorizes retailers to offer discounts "for the purpose of inducing payment by cash" and that any potential individual recovery would be small--possibly only 80 cents. The intermediate appellate court affirmed, adding as to the "penalty class" that the aggregate amount of potential penalties under the state's statute either would be too small to justify the burdens of class action treatment or too onerous in relation to the alleged wrong-doing.

Reversing, the state supreme court pointed out that California's class action procedural rules do not require a showing of potential success on the merits of the suit before certification may be ordered. The state and federal authorities, Justice Baxter wrote for the court, view the question of certification as essentially a procedural one, not whether an action is legally or factually meritorious. Those issues can be raised and tested after certification by demurrer or other pretrial procedures, he stated. "Were we to condone merit-based challenges as part and parcel of the certification process," the court added, "similar procedural protections would be necessary to ensure that an otherwise certifiable class action is not unfairly denied the opportunity to proceed on legitimate claims."

The court also turned down arguments that the novelty of claims or potentially small awards should be criteria for certification.

COURTS

What One Hand Giveth, the Other Taketh Away

Proving that courts can change their minds, the Eighth Circuit has held that its own rule on the precedential status of unpublished opinions is unconstitutional under the judicial article of the U.S. Constitution because "it purports to confer on federal courts a power that goes beyond the `judicial.'" Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000).

Faye Anastasoff sought a refund of overpaid federal income taxes, but the Internal Revenue Service denied the claim as untimely, citing an Eighth Circuit unpublished opinion on point. No fair, the taxpayer replied, Eighth Circuit Rule 28A(i) states unpublished opinions are not precedent. Just look at the rule:

Unpublished opinions are not precedent and parties generally should not cite them. When relevant to establishing the doctrines of res judicata, collateral estoppel, or the law of the case, however, the parties may cite any unpublished opinion. Parties may also cite an unpublished opinion of this court if the opinion has persuasive value on a material issue and no published opinion of this or another court would serve as well. The answer, according to Judge Arnold, is that the doctrine of precedent was well established and well regarded when the Constitution was adopted, and the framers of the Constitution intended that it would limit the judicial power delegated to the federal courts by Article III. Accordingly, he concluded, the circuit rule, "insofar as it would allow us to avoid the precedential effect of our prior decisions, purports to expand the judicial power beyond the bounds of Article III and is therefore unconstitutional." In view of this, the court ruled, it had to follow the unpublished case, and the taxpayer lost.

The court warned that its decision was not about whether opinions should be published. "Courts may decide, for one reason or another," Judge Arnold wrote, "that some of their cases are not important enough to take up pages in a printed report .... The question presented here is not whether opinions ought to be published, but whether they ought to have precedential effect, whether published or not. We point out, in addition, that `unpublished' in this context has never meant `secret.'"

The court also added that it was not creating a rigid doctrine of "eternal adherence to precedents." Cases can be overruled, and sometimes they should be, it added. One judge, concurring, picked up on this thought, stating that the case before the court should be heard en banc in order for it to reconsider the ruling in the unpublished opinion.

FEDERAL PREEMPTION

Oil Tanker Shipping, No; Secondhand Smoke, Yes

U.S. federal statutes and regulations relating to the maritime industry preempt state's attempts to regulate oil...