October term of U.S. Supreme Court term set to begin

Court may hear cases on federal preemption of local zoning laws, employment discrimination, search and seizure and sentencing

KIMBERLY ATKINS  Lawyers USA   September 29, 2008

WASHINGTON — The U.S. Supreme Court could decide Monday whether it will hear Baltimore County’s appeal of a lower court ruling that the county violated the federal Natural Gas Act by banning the construction of liquefied natural gas terminals in coastal areas. AES Corp., which seeks to build an LNG terminal at Sparrows Point, has challenged the legality of the county’s prohibition.

U.S. District Court Judge Richard D. Bennett of Maryland had upheld the county’s ban. But the 4th U.S Circuit Court of Appeals reversed that decision, saying the federal law pre-empts the county’s prohibition and gives the Federal Energy Regulatory Commission exclusive authority over the placement of LNG terminals.

The high court will hold a conference today at which the justices will consider whether to accept for argument appeals submitted to them this summer, including Baltimore County’s.

The Court’s docket for the October 2008 term is far from complete, but already a number of highly anticipated cases are set to be argued and decided.

The cases deal with a number of topics of interest to practicing attorneys, including federal pre-emption, employment law, criminal procedure, sentencing and punitive damages.

Pre-emption and punitives

This term, the Court is set to determine whether plaintiffs have a right to sue pharmaceutical and tobacco companies over the safety of their products.

In Wyeth v. Levine, 06-1249, the Court will revisit the issue of whether the Food and Drug Administration’s authority precludes state tort actions — a decision that will determine if tort claims against drug companies seeking billions of dollars in damages in can proceed in state court.

The plaintiff in the case, Diana Levine, lost an arm to gangrene after an injection of the nausea drug Phenergan. She claims that method of using the drug wasn’t reasonably safe under state law. The drug company contends that the claims are pre-empted by the federal Food, Drug and Cosmetic Act. Oral arguments are schedule for Nov. 3.

Cecelia Prewett, a spokeswoman for the trial lawyers’ group American Association for Justice, said the state law claims should be allowed.

“Congress has been clear that it never intended to pre-empt state law regarding either drugs or devices,” Prewett said.

But Randall Lutter, the FDA’s deputy commissioner for policy, recently told members of Congress that limits on state-law tort claims are necessary in order to ensure patient safety.

He said that the agency undergoes a careful risk-benefit analysis for its approved drugs, and can help create a single standard for drug makers. If states intervene, companies will be less likely to market potentially life-saving drugs for fear of being sued.

“The FDA is the scientific regulatory body that is publicly accountable for effectively executing its mission of protecting and promoting the public health,” said Lutter, echoing the argument put forth in the amicus brief submitted on the agency’s behalf in support of Wyeth. “[State] court actions that undermine FDA decisions may have the consequence of serving to hinder, rather than help, public health.”

The case comes after last term’s decision in Riegel v. Medtronic, 128 S.Ct. 999, which held that federal law pre-empted state claims alleging tortious use of medical devices. Signaling the importance the plaintiffs’ bar has placed on the Levine case, attorneys from the legal advocacy group Public Citizen — which handled the Medtronic case before the high Court — were replaced in April by veteran Supreme Court litigator David Frederick. Frederick’s fees are being paid by the AAJ.

The first day of oral arguments, Oct. 6, will feature another highly anticipated pre-emption case: Altria Group v. Good, No. 07-562. In that case, the Court will consider whether plaintiffs — specifically a class of Maine smokers — can bring state law consumer protection claims against Philip Morris’s parent company.

The plaintiffs allege the defendant deceptively marketed “light” and “lowered tar nicotine” cigarettes they claim are just as unhealthy. The defendant argues these claims are pre-empted by the Federal Cigarette Labeling and Advertising Act of 1965.

In another case arising from tobacco litigation, Philip Morris USA v. Williams, No. 07-1216, the Court will consider whether a punitive damages award that is nearly 100 times higher than the compensatory damages award may be justified by the reprehensibility of a defendant’s conduct, despite the constitutional requirement that punitive damages be reasonably related to the plaintiff’s harm.


After two terms in which the Court issued a number of pivotal employment law decisions, the justices are poised to tackle more this term.

In Crawford v. Nashville and Davidson County, No. 06-1595, the Court will consider whether the anti-retaliation language in Title VII protects workers from dismissal for voluntarily providing information about alleged discrimination as part of an internal company investigation.

Last term the Court handed down rulings expanding the scope of retaliation claims under the Age Discrimination in Employment Act and §1981.

Attorneys general in 19 states and Puerto Rico filed amicus briefs in the Crawford case, urging the Court to allow such retaliation claims.

The move was praised by Marsha Greenberger, co-president of the National Women’s Law Center.

“For women to be truly protected from sexual harassment, they must receive effective protection against retaliation,” said Greenberger. “It is crucial that the Supreme Court reverse the lower court’s decision in this case.”

But some business and employer groups have urged the Court that a ruling in favor of such retaliation claims would hamstring employers’ efforts to investigate sexual harassment by putting them at a higher risk of lawsuits.

Francisco M. Negrón, Jr., general counsel for the National School Boards Association, said such a ruling is unnecessary and would have a serious effect on school districts, which collectively make up the country’s largest employer.

“Extending the protection of Title VII to those merely participating in an investigation is a redundant and unnecessary burden to place on school districts,” said Negrón, whose group submitted an amicus brief. “The law protects those employees who complain of harassment and policies are already in place in school districts across the country to ensure such protection.”

In another employment case, AT&T v. Hulteen, No. 07-543, the Court will consider whether pregnancy leave taken before the passage of the Pregnancy Discrimination Act of 1978 must be taken into account in the calculation of pension and other employment benefits.

In Huber v. Wal-Mart Stores, No. 07-480, the Court will determine whether the Americans with Disabilities Act requires employers to reassign a disabled employee to a vacant, equivalent position for which he or she is qualified, or whether it merely allows the employee to apply and compete with other applicants for the vacant spot.

Search, seizure and sentencing

It will be a busy term for criminal cases as well, with the Court set to take on a host of Fourth Amendment search and seizure cases.

In one case — Pearson v. Callahan, No. 07-751 — the Court took to the unusual step of asking the parties to argue whether past precedent should be overturned.

That case raises the question of whether police officers may enter a home without a warrant immediately after an undercover informant buys drugs inside, and whether qualified immunity protects officers from civil rights claims arising from such searches.

In addition, the Court asked the parties to argue whether it should overrule the 2001 decision in Saucier v. Katz, 533 U.S. 194, and thus create a new test for determining when qualified immunity may be asserted.

The Court will also take on a number of Fourth Amendment cases involving automobiles.

In Arizona v. Gant, No. 07-542, the Court will consider whether the Fourth Amendment requires law enforcement officers to demonstrate a threat to their safety or a need to preserve evidence related to the crime before conducting a warrantless search of a car after the occupants have been detained and removed from the vehicle.

In Arizona v. Johnson, No. 07-1122, the justices will decide whether an officer conducting a pat-down after a stop for a minor traffic violation can search a passenger he believes to be armed and dangerous, even if he has no basis for believing the passenger is committing, or has committed, a criminal offense.

In Herring v. U.S., No. 07-513, the Court will consider whether evidence must be suppressed when an officer obtained the evidence in an arrest and car search relying solely upon seemingly credible —but factually erroneous — information negligently provided by another law enforcement agent.

In a case that will address the scope of the Confrontation Clause, Melendez-Diaz v. Massachusetts, No. 07-591, the Court will determine if lab reports prepared for trial by state forensic analysts constitute “testimonial” evidence.

The Court will also take up a number of sentencing issues this term, including whether the failure to report to prison is a “violent felony” qualifying for an increased sentence under the Armed Career Criminal Act (Chambers v. U.S., No. 06-11206) and whether facts necessary for imposing consecutive sentences must be found by a jury or admitted by the defendant (Oregon v. Ice, No. 07-901).

Daily Record reporters Steve Lash and Danielle Ulman contributed to this story. Kimberly Atkins writes for Lawyers USA, a sister publication of The Daily Record.

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