Two new opinions today, plus three from earlier I’m getting to late.

S.-W. v. United States—civil—affirmance—Fisher

After a girl sustained a permanent injury to her shoulder during her childbirth, she sued the doctor who handled the delivery for malpractice. The statute of limitations applicable to such a suit normally would have been tolled by Pennsylvania law until the child turned 18. But, unbeknownst to the plaintiff, the doctor was employed by a deemed-federal entity, so the Federal Tort Claims Act was the exclusive remedy and no statutory applied. The plaintiff sought equitable tolling because the doctor was listed as a team member on the website of the private hospital where the birth took place, but the district court denied the request and today the Third Circuit affirmed.

The opinion first clarified that the standard for equitable tolling has two separate requirements: (1) that the plaintiff pursued her rights diligently, and (2) that some extraordinary circumstance beyond her control prevented timely filing. The plaintiff failed both prongs. Good news for medical-malpractice defendants, civil defendants generally, and attorney-malpractice lawyers.

Joining Fisher were Hardiman and Rendell. The case, submitted after the pandemic shutdown began, was decided without oral argument.

 

In re: Processed Egg Prods. Antitrust Litig.—antitrust—affirmance—Jordan

The Third Circuit today rejected antitrust plaintiffs’ challenges to a jury verdict against them on their allegations that egg producers conspired to raise prices by depressing supply. The plaintiffs’ main argument was that the court erred at the summary-judgment stage by evaluating their conspiracy allegations using the rule of reason instead of the standard for per se illegality. The Third Circuit disagreed:

The plaintiffs evidently believe that, because they are masters of their complaint, they are also
masters of the District Court in deciding the analytical approach to be taken in the case. Their power to dictate analysis and outcome is not what they wish it were.

Joining Jordan were Restrepo and Fuentes. Arguing counsel were Kathleen Sullivan of Quinn Emanuel for the plaintiffs and Jay Levine of Porter Wright for the egg producers.

 

On to the three prior opinions.

Jaroslawicz v. M&T Bank—civil / securities—partial reversal—Matey

After two banks merged, shareholders for one of the banks filed a class-action suit, alleging that the banks failed to disclose material information about the other bank. The district court dismissed their claims, but the Third Circuit vacated and remanded in part, upholding dismissal of their claims for misleading opinion statements but vacating dismissal of claims about the other bank’s risk disclosure.

Joining Matey were McKee and Siler CA6 by designation. Arguing counsel were Deborah Gross of Kaufman Coren & Ress for the appellants and former Barry clerk Bradley Wilson of Wachtell for the appellee bank parties.

 

U.S. v. Bellille—criminal—reversal—Ambro

Well, you don’t see this every day.

After a district court appointed a lawyer from the CJA panel to represent a defendant in a large multi-defendant RICO case, the lawyer moved to withdraw on the ground that he no longer was on the CJA panel, that he now was an in-house counsel for a corporation, that he was contractually barred from doing the case, and that he lacked the ability and resources to do it. The district court denied the motion. Then the lawyer (allegedly) joined a law firm of-counsel and moved to withdraw on the ground that the principal of the firm had represented a prosecution witness in the case, so he moved to withdraw again. The district court denied this motion, too. (The case arose in the Virgin Islands, and the district judge later explained that the existing CJA panel wasn’t big enough to represent all the defendants.)

The Third Circuit vacated and remanded. After first ruling that it had jurisdiction to hear interlocutory appeals from denials of motions to withdraw based on conflicts of interest, it got to the merits:

Accordingly, we remand for the District Court to develop further the factual record and decide Golubitsky’s motion based on that supplemented record. It must first determine whether there is an actual of-counsel relationship between Golubitsky and DiRuzzo (in other words, whether the facts on the ground are as the parties allege).

If there is no actual of-counsel relationship, Golubitsky’s representation of Bellille in theory could continue. But the Court should also determine whether Golubitsky and DiRuzzo associated to create a conflict. If the answer is yes, it may want to take disciplinary action. In that scenario, Golubitsky would probably be disqualified from representing Bellille based on the manufactured conflict and sanctionable conduct.

If there is a real relationship, then the Court must inquire whether Golubitsky and DiRuzzo were associated in a “firm” under Model Rule 1.10(a) based on the supplemented record. Were they not associated in a “firm,” the representation may continue and there is no need for screening mechanisms.

If there is an actual relationship, and Golubitsky and DiRuzzo were associated under Model Rule 1.10, the Court must assess whether the four requirements of Model Rule 1.7(b) are met. If even one is not met—for example, if the Court concludes that the representation involves the assertion of a claim by one client against another client in the same litigation, or Bellille and Ayala did not consent in writing to the representations—the Court must grant the motion to withdraw.

Fascinating stuff.

Joining Ambro were Greenaway, Jr., and Bibas. Arguing counsel were Alexander Golubitsky (the same lawyer seeking to withdraw) of DiRuzzo & Company for the appellant and Meredith Edwards of the USVI US Attorney’s office for the government.

 

In re: NFL Players’ Concussion Injury Litig.—civil—affirmance—Greenaway, Jr.

The settlement of the lawsuit brought by former pro football players against the National Football League has generated a series of legal battles. In this latest round, a group of former players challenged various rules enacted by the settlement claims administrator for distributing settlement funds to former players seeking compensation. The challengers argued that the revised rules amended the settlement itself and, even if they didn’t, they were an abuse of discretion. The Third Circuit rejected both arguments and affirmed.

Joining Greenaway, Jr., were Jordan and Krause. The appeal was decided without oral argument.