2nd Circuit
Connecticut, New York, Vermont

Dangerous misrepresentation negates NLRA protection

Home health aides who went on strike after telling their employer they would be at work were not protected by the National Labor Relations Act (NLRA), the 2nd Circuit ruled on Feb. 27 in NLRB v. Special Touch Home Care Services Inc.

In 2004, the union representing Special Touch’s aides went on strike, but first gave Special Touch a 10-day notice. Special Touch then contacted the aides and asked them if they planned to miss work. During the two-day strike, 48 aides who said they would be at work were absent. After the strike, Special Touch told those aides not to report to work until further notice. Although none were terminated, the union filed a complaint with the National Labor Relations Board (NLRB), which found that the aides had no obligation to their patients because of the union’s 10-day notice.

The 2nd Circuit disagreed, finding that the NLRB had no reasonable basis to determine that the aides hadn’t put their patients in danger.   


5th Circuit 
Louisiana, Mississippi, Texas

Mississippi’s $1 million cap on noneconomic damages is constitutional

Mississippi’s 2004 tort reform withstood its first real test on Feb. 27. In Learmonth v. Sears and Roebuck Co., the 5th Circuit found that a $1 million cap on noneconomic damages in the state of Mississippi is constitutional.

When a federal jury found Sears responsible for Lisa Learmonth’s injuries, caused by one of its company vans colliding with her vehicle, it awarded her $4 million in damages, including $2.2 million in noneconomic damages. A district court reduced that part of the award to $1 million to comply with the cap. Learmonth appealed, claiming that the cap violated the Mississippi Constitution’s separation of powers and jury trial guarantee clauses.

The 5th Circuit found that Learmonth failed to establish a constitutional violation, and that the legislature is perfectly able to define available legal remedies. 


6th Circuit 
Kentucky, Michigan, Ohio, Tennessee

Failure-to-warn claims allowed when generic drugs don’t follow brand-name labels

On March 13, in Fulgenzi v. PLIVA Inc., the 6th Circuit created a narrow exception to the Supreme Court’s ruling in PLIVA Inc. v. Mensing, which held that failure-to-warn claims against generic-drug manufacturers are preempted.

In Mensing, the high court reasoned that because the law requires generics to have the same labels as brand-name drugs, generic manufacturers can’t be subject to failure-to-warn claims.

In Fulgenzi, the brand-name drug Reglan received approval from the Food and Drug Administration to add the phrase “Therapy should not exceed 12 weeks in duration” to its label. PLIVA did not change the generic equivalent’s label, and when Eleanor Fulgenzi developed tardive dyskinesia after taking the generic drug, she sued the company. The 6th Circuit found that when a generic manufacturer fails to follow the brand-name label in a timely manner, failure-to-warn claims are not preempted.


8th Circuit 
Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota

Employees have duty to notify of need for FMLA leave

Retroactively applying for Family and Medical Leave Act (FMLA) leave does not count as providing sufficient notice, the 8th Circuit ruled on Feb. 5 in Bosley v. Cargill Meat Solutions Corp

When Tanya Bosley needed to miss work because of depression and other health issues, she did not inform her employer herself, in violation of Cargill’s call-in procedure. Instead, a co-worker told the company on her behalf. This was on Feb. 1, 2008. Cargill terminated Bosley after three consecutive call-in violations, in accordance with its policy. On March 3, 2008, Bosley finally contacted Cargill when she went to get FMLA forms from the company, and learned of her termination then. 

Bosley sued Cargill, claiming entitlement and retaliation under the FMLA. The 8th Circuit affirmed the district court’s ruling of summary judgment for Cargill, saying that even if Bosley’s circumstances were extreme, the evidence showed she was not incapacitated by Feb. 25, 2008, and that as an employee she had an affirmative duty to notify Cargill of her need for FMLA leave.