Weekly Case Digests February 25, 2019 March 1, 2019.

• Date: 01 March 2019

Byline: WISCONSIN LAW JOURNAL STAFF

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: United States of America v. Scott B. Griffith

Case No.: 18-1310

Officials: ROVNER, SYKES, and BARRETT, Circuit Judges.

Focus: Sentencing Guidelines

Scott B. Griffith pled guilty to a three-count indictment that charged him with receiving, distributing, and possessing child pornography. The district court sentenced him to 240 months' imprisonment on each count, to run concurrently, as well as a fifteen-year period of supervised release. On appeal, he asserts that the district court committed procedural error in calculating the guidelines range, and that his resulting sentence is substantively unreasonable. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: P.F., a minor by A.F., his parent, et al. v. Carolyn Stanford Taylor, et al.

Case No.: 17-3266

Officials: SYKES and BARRETT, Circuit Judges, and DURKIN, District Judge.

Focus: ADA Violation

Under Wisconsin's open-enrollment program, a public-school student can apply to transfer from his resident school district to a nonresident district that has an available space for him. WIS. STAT. 118.51. The program distinguishes between "regular education and special education spaces." Id. 118.51(5)(a)1. If a student with a disability requires special services, a nonresident district may deny the student's transfer application if it lacks the services or space necessary to meet those special needs. Id. 118.51(5)(a)4.

This suit concerns a group of disabled schoolchildren whose transfer applications were denied because nonresident districts determined that they could not meet the students' special needs. The students' parents, on their children's behalf, sued the school districts and various state actors seeking injunctive, declaratory, and compensatory relief under Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. 12132; section 504 of the Rehabilitation Act, 29 U.S.C. 794(a); and the Equal Protection Clause, U.S. CONST. amend. XIV, 1. They argued that the program unlawfully discriminates against disabled children because of their disabilities. The district judge concluded that the program did not violate federal law and entered summary judgment for the defendants.

We affirm. Differential treatment of special-needs students doesn't make the program unlawful. Federal law "forbids discrimination based on stereotypes about a handicap, but it does not forbid decisions based on the actual attributes of the handicap." Anderson v. Univ. of Wis., 841 F.2d 737, 740 (7th Cir. 1988). The program makes decisions based on the actual needs of disabled students, so it complies with federal law. And even if we analyze the case as a request for an accommodation, the requested change would fundamentally alter the program, and neither the ADA nor the Rehabilitation Act require fundamental alterations.

Affirmed

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7th Circuit Court of Appeals

Case Name: Charlotte Robinson, et al. v. Davol Inc., et al.

Case No.: 17-2068

Officials: SYKES and BARRETT, Circuit Judges, and GRIESBACH, Chief District Judge.

Focus: Abuse of Discretion Expert Testimony

C.R. Bard, Inc., manufactures a surgical mesh patch used to repair hernias by implantation. The patch consists of two pieces of mesh that surround a flexible plastic ring. During a hernia repair, the patch is folded to fit through a small incision, then the plastic ring springs back into its original shape and flattens the mesh against the abdominal wall.

Prior to the recall, Georgia Bowersock underwent surgery to repair a hernia, and her surgeon implanted a Bard patch. Roughly one year later, on October 31, 2006, she died of complications arising from an abdominal-wall abscess. Her estate and family members sued Bard and Davol Inc., the patent holder for the patch, alleging that a defect in the patch caused her death. To establish medical causation, the plaintiffs retained three experts to opine on the defect and the likely cause of Mrs. Bowersock's death.

But the experts had trouble establishing causation. Unlike defective patches in other injured patients, Mrs. Bowersock's patch did not adhere to her bowel or perforate her organs with a broken, sharp edge. One expert tried to present a new theory of causation: the patch had "buckled," forming a stiff edge that rubbed against and imperceptibly perforated her internal organs. The defendants moved to exclude the expert testimony. The judge granted the motion, finding that the "buckling" theory was not sufficiently reliable. Lacking expert testimony to establish causation, the plaintiffs could not prove their case, and the judge entered summary judgment for Bard and Davol.

We affirm. The novel theory of causation was not peer reviewed, professionally presented, consistent with Mrs. Bowersock's medical records or autopsy, or substantiated by other cases. The judge therefore did not abuse his discretion in excluding the expert testimony. Summary judgment for the defendants necessarily followed.

Affirmed

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7th Circuit Court of Appeals

Case Name: Edward L. Calvert v. National Labor Relations Board

Case No.: 17-1895

Officials: EASTERBROOK and SYKES, Circuit Judges, and BUCKLO, District Judge.

Focus: Collateral Estoppel

Edward Calvert was the sole owner and president of E.L.C. Electric, Inc., an electrical contracting company. After a labor organization unsuccessfully campaigned to unionize his company's workforce, Calvert laid off most of E.L.C. Electric's rank-and-file electricians, which effectively prevented future unionization attempts. The National Labor Relations Board ("NLRB") determined that the company violated the National Labor Relations Act ("NLRA"), which prohibits discrimination against workers for exercising their statutory rights. See 29 U.S.C. 158(a)(3). The Board ordered E.L.C. Electric to compensate the electricians with backpay.

On appeal to the district court, the Board again raised collateral estoppel but failed to analyze the elements of the doctrine or provide citations to the relevant parts of the agency record. The district judge noted these deficiencies and affirmed. We likewise affirm. The Board does not challenge the evidence at trial or the bankruptcy judge's factual findings. Instead it stakes its entire case on collateral estoppel. But it persists in providing only a generalized discussion of preclusion doctrine that is untethered to specific findings in the NLRB proceeding. That's not enough to establish that Calvert is precluded from contesting the malice issue under 523(a)(6).

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Ronald T. Coleman

Case No.: 17-3636

Officials: WOOD, Chief Judge, and EASTERBROOK and BRENNAN, Circuit Judges.

Focus: Sufficiency of Evidence

Ronald Coleman is a former Chicago police officer who turned to crime. In June 2014, he was assigned to a federal drug investigation task force, which was about to execute numerous search and arrest warrants. Shortly before the operations were set to begin, Coleman telephoned one of the targetsa high school acquaintanceto warn him about the raid. That call led to a single charge of obstruction of justice, in violation of 18 U.S.C. 1512(c)(2), and the end of Coleman's law-enforcement career when a jury convicted him. Coleman now argues that he is entitled to a new trial for two primary reasons: evidentiary errors, and the government's use of allegedly perjured testimony. He also urges that the district court committed procedural and substantive errors when selecting his sentence. Because we find no prejudicial error in any of the district court's rulings, we affirm both the conviction and the sentence.

Affirmed

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7th Circuit Court of Appeals

Case Name: Ray Fuller v. Matthew G. Whitaker

Case No.: 17-3176

Officials: WOOD, Chief Judge, and MANION and ROVNER, Circuit Judges.

Focus: Immigration Removal Proceedings

Ray Fuller asked the Board of Immigration Appeals to exercise its authority to reopen his removal proceeding sua sponte so that he could present new evidence in support of his request to defer his removal from this country under the Convention Against Torture ("CAT"). Fuller contends that he likely will face torture upon return to his native Jamaica because he is bisexual. The Board previously had sustained an Immigration Judge's finding that Fuller had not presented a credible case as to his alleged sexual orientation and fear of torture. In support of his motion to reopen, Fuller submitted to the Board several new letters of support from acquaintances attesting to prior incidents in which he was the victim of violence in Jamaica owing to his sexual orientation. In denying this request, the Board explained that "[Fuller's] motion does not challenge our conclusions regarding his...