Summaries of Selected Opinions, 0920 COBJ, Vol. 49, No. 8 Pg. 82

PositionVol. 49, 8 [Page 82]

49 Colo.Law. 82

Summaries of Selected Opinions

Vol. 49, No. 8 [Page 82]

Colorado Lawyer

September, 2020

August, 2020


No. 19-3088. Couser v. Gay. 5/22/2020. D.Kan. Judge Matheson. Eleventh Amendment Immunity—42 U.S.C. § 1983 Official Capacity Claim—County Sheriff Status.

Following a traffic chase, Kansas law enforcement officers apprehended defendant. A sheriff’s deputy shot him in the back and he later died from the gunshot wound. Defendant’s estate commenced this action, alleging constitutional violations under 42 U.S.C. § 1983 and a state law claim. The complaint named as defendants several governmental entities, several officers in their individual capacities, and two county sheriffs in their individual and official capacities

As relevant to this appeal, the county sheriffs moved to dismiss the official capacity claims, arguing they were state actors entitled to Eleventh Amendment immunity. The district court denied each sheriff’s motion, concluding that sheriffs are arms of the county, not the state.

One sheriff appealed, contending that the sheriff is a state actor. While Eleventh Amendment immunity applies to an entity that is an arm of the state, the U.S. Supreme Court has not extended Eleventh Amendment to counties. In determining whether an official is a representative of the state or a local government entity, the Tenth Circuit evaluates four factors: (1) the character ascribed to the defendant under state law; (2) the autonomy accorded the defendant under state law; (3) the defendant’s finances, including the amount of state funding received; and (4) whether the defendant is concerned primarily with local or state affairs. This inquiry is function-specific, based on state law and structure. Here, (1) Kansas law lists sheriffs under county officer provisions; (2) Kansas sheriffs have substantial autonomy from the state in their law enforcement functions; (3) the county controls the sheriff’s salary and books; and (4) the sheriff is primarily concerned with local affairs. Accordingly, Kansas county sheriffs are county actors, and Eleventh Amendment immunity does not apply.

The order was affirmed.

No. 19-5035. In re MDL 2700 Genentech Herceptin Marketing and Sales Practice Litigation. 5/29/2020. N.D.Okla. Judge Briscoe. Multi-District Litigation—Federal Preemption—Obstacle Preemption—Impossibility Preemption

This appeal arose from a group of 14 diversity cases that were consolidated by the Judicial Panel on Multidistrict Litigation. The plaintiffs in each case are cancer treatment providers who purchased multi-dose vials of Herceptin, a breast cancer drug, from defendant. Plaintiffs alleged that defendant violated state law by misstating the drug concentration and volume on the product labeling, and by failing to ensure that each vial contained the labeled amount of the active ingredient. The claims included breach of express and implied warranties and unjust enrichment.

Following consolidation, defendant moved for summary judgment on the basis that the state law claims were preempted by federal law, arguing that the Public Health Service Act (PHSA) and the Food, Drug, and Cosmetic Act (FDCA) preempt the state law claims. Specifically, defendant contended that the state law claims were precluded by both obstacle preemption and impossibility preemption. The district court granted the summary judgment motion.

On appeal, plaintiffs challenged the district court’s grant of summary judgment, specifically its conclusions that obstacle...

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