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Federal Rule of Evidence 601 requires federal courts to apply state rules of witness qualification when determining the competency of expert witnesses to testify regarding medical malpractice claims that turn on questions of state substantive law. Plaintiff filed suit challenging the district court's grant of summary judgment on some of her claims and the dismissal of her other claims brought against the Department of Veterans Affairs (VA). The Fifth Circuit held that the district court was correct in its determination that Rule 601 requires that plaintiff's proffered expert witness must satisfy the state law standards for expert witness competency in addition to the Federal Rule of Evidence 702 standards for the admissibility of expert witness testimony. However, the district court erred in its assertion that it was "undisputed" that the expert was not "practicing medicine" as the term is used in Tex. Civ. Prac. & Rem. Code Ann. 74.401. Therefore, the court vacated the district court's judgment deeming it to be undisputed that the expert was not competent to testify as a medical expert and remanded for the dispute to be adjudicated in the first instance. The court also held that the district court erred in analyzing plaintiff's privacy-related allegations as federal Privacy Act claims brought under the Federal Tort Claims Act, but the district court nonetheless did not err by dismissing the claims. The district court did not err by granting summary judgment for the government on the three privacy-related claims that it construed as Privacy Act claims and considered on the merits. Although the district court erred by holding plaintiff's claim of assault and battery was jurisdictionally-barred, summary judgment was nevertheless appropriate. View "Coleman v. United States" on Justia Law

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In 2009, U.S. Army Specialist Schaefer was killed by a roadside bomb while serving a tour of duty in Iraq. Those directly responsible for such attacks are often unidentifiable or beyond the reach of a court’s personal jurisdiction. Secondary actors, such as the organizations that fund the terrorists, are often amorphous. Despite Congress’s effort to make state sponsors of terrorism accountable in U.S. courts (28 U.S.C. 1605A) any resulting judgment may be uncollectible. Spc. Schaefer’s mother claimed that the bomb that killed her son was a signature Iranian weapon that traveled from the Iranian Revolutionary Guard Corps to Hezbollah to Iraqi militias, who then placed it in the ground and that Deutsche Bank, a German entity with U.S. affiliates, is responsible for her son’s death under the Anti-Terrorism Act (ATA), 18 U.S.C. 2333. She argued that the Bank joined an Iranian conspiracy to commit acts of terror when it instituted procedures to evade U.S. sanctions and facilitate Iranian banking transactions. The Seventh Circuit affirmed dismissal of her suit, which “failed to plead facts that plausibly indicated that Deutsche Bank’s actions caused her son’s death.” The Bank’s conduct was not “violent” or “dangerous to human life” as the ATA requires, nor did it display the terroristic intent. To the extent Deutsche Bank joined any conspiracy, it joined only a conspiracy to avoid sanctions, distinct from any of Iran’s terrorism-related goals. View "Kemper v. Deutsche Bank AG" on Justia Law

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Hansen served in the Army National Guard for six years, which included, at the start of his service in 1959, 182 days of active duty for training. Hansen died from amyotrophic lateral sclerosis (ALS) in 1998. In 2009, his widow applied to the VA for benefits under 38 U.S.C. 1310(a), which provides that “[w]hen any veteran dies after December 31, 1956, from a service-connected or compensable disability, the Secretary shall pay dependency and indemnity compensation to such veteran’s surviving spouse, children, and parents.” A 2008 regulation declares that “the development of [ALS] manifested at any time after discharge or release from active military, naval, or air service is sufficient to establish service connection for that disease.” 38 C.F.R. 3.318(a) (ALS Rule). The Board of Veterans’ Appeals and the Veterans Court held that Hansen’s “active duty for training” service does not qualify as active duty, and denied the benefits claim. The Federal Circuit affirmed. The 38 U.S.C.101(24) definition of “active military, naval, or air service” has been interpreted as excluding training in these circumstances. View "Hansen-Sorensen v. Wilkie" on Justia Law

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Cook served on active duty in the Navy, 1972-1973. Cook’s service records indicate that he experienced back pain. In 2000, Cook sought service connection for back problems and later filed a claim for total disability based on individual unemployability (TDIU), also back-related. The regional office (RO) denied both claims. Cook appealed and testified at a Board hearing in 2012. The Board remanded; the RO again denied both claims. Cook again appealed and requested an additional hearing to present further evidence. The Board denied Cook that additional hearing and denied both of his claims. The Veterans Court, upon joint motion, vacated and remanded because the Board did not adequately explain its decision. On remand, Cook again requested another Board hearing. The Board denied a hearing and denied Cook’s claims for service connection and TDIU. The Veterans Court vacated and ordered a hearing. The Federal Circuit affirmed. The Veterans’ Judicial Review Act codified a veteran’s longstanding right to a Board of Veterans’ Appeals hearing, 38 U.S.C. 7107(b). The courts concluded that the statute entitles an appellant to an opportunity for a hearing whenever the Board decides an appeal, including on remand. View "Cook v. Wilkie" on Justia Law

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Garcia served in the Army from 1952-1954. The military’s records of his medical treatment during service were among those destroyed in a fire in 1973 at the National Personnel Records Center in St. Louis. The record of his medical examination upon leaving the service was not destroyed and reveals a normal psychiatric state and no severe illnesses or injuries. Garcia saw Dr. Smoker, in 1965 for a burn from a welding accident. In 1969, Dr. Smoker diagnosed Garcia with, and prescribed medication for, paranoid schizophrenia. In 2002, Garcia sought disability benefit, alleging service connection of disability-causing paranoid schizophrenia. The regional office denied the claim. The Board of Veterans’ Appeals remanded for a VA psychiatric examination. Although García claimed to have been seen twice for his condition while in service, a VA examiner found it “impossible to say, without resorting to mere speculation, as to whether this veteran’s schizophrenia, paranoid type actually started in Service, without more documentation and records.” The previous denial was “confirmed.” Garcia collaterally challenged the 2006 Board decision, alleging clear and unmistakable error (CUE). The Board and Veterans Court rejected Garcia’s CUE arguments. The Federal Circuit affirmed, upholding the Veterans Court’s application of 38 C.F.R. 20.1409(c) to bar a due process allegation of CUE. View "García v. WIlkie" on Justia Law

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The Ninth Circuit affirmed the district court's dismissal of an action brought by E.V., a civilian on a military base in Japan, seeking to enjoin the release of her mental health records. Applying the framework in Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949), the panel held that sovereign immunity barred E.V.'s non-constitutional claims for injunctive relief because they were considered to be against the government and the government had not waived its immunity. Although E.V.'s constitutional claims were considered to be against Judge Robinson as an individual and were not barred by sovereign immunity, the panel held that E.V.'s constitutional claims must be dismissed on other grounds. View "E. V. v. Robinson" on Justia Law

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Plaintiff appealed the district court's dismissal of his complaint, denial of his motion for leave to amend the complaint, and rejection of his motion to transfer the case to the United States Court of Federal Claims. After plaintiff served in the Marine Corps, he received an other-than-honorable discharge stemming from conduct. Plaintiff sought judicial review of the Correction Board's denial of his request to upgrade his discharge on the basis that his misconduct resulted from his mental and physical disabilities. The DC Circuit dismissed the action for want of jurisdiction because the Federal Circuit has exclusive rights over appeals from orders granting or denying the transfer of an action to the Court of Federal Claims. The court held that the district court lacked subject matter jurisdiction over the complaint, and it correctly determined that amendment to cure the jurisdictional defect would have been futile. Accordingly, the court affirmed in part and dismissed in part. View "Palacios v. Spencer" on Justia Law

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Robinson served in the Marine Corps in the 1960s, with a deployment in Vietnam. He subsequently experienced heart problems. In 20016, Robinson saw his VA cardiologist, Dr. Sadoughian, who recommended diagnostic testing, but the testing was not performed. Nine months later, Robinson returned after a week in the hospital with blood clots in his leg. Dr. Sadoughian again recommended testing. Robinson received the prescribed testing in April 2007, 14 months after his initial recommendation. The results indicated “[c]oronary artery disease with prior inferior wall myocardial infarction.” In August 2010 the VA amended its regulations to add coronary artery disease to its list of conditions that are presumptively service-connected for veterans who were exposed to certain herbicides, 38 C.F.R. 3.309(e). In 2011, the VA retroactively granted disability benefits to Robinson for that disease following a “Nehmer” review. The Board of Veterans’ Appeals denied Robinson’s claim for an earlier effective date because the April 2007 test results were the earliest medical evidence demonstrating that he satisfied the criteria the disability rating. Robinson argued that he should not be penalized for the delay in scheduling tests and that he would have received an earlier effective date if the VA had provided him with prompt treatment as required by section 17.33(a)(2). The Board concluded that section 17.33 applies only to treatment and has no bearing on effective date criteria. The Veterans Court and Federal Circuit affirmed, noting that the record did not indicate what caused the testing delay or whether Robinson would have satisfied the disability rating requirements earlier. View "Robinson v. Wilkie" on Justia Law

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Cousin served in the Army, 1951-1953. His entrance examination showed normal findings as to his back. In service, he injured his back while lifting cans; a month later, he complained of back pain. He was diagnosed with a mild back strain and placed on medically restricted duty. In 1952, his back condition was noted to have improved, and he was removed from restricted duty. Records from 1953 note back pain before service; an x-ray showed a “pedicle defect L5” and “spondylolysis.” He was placed on a permanent profile for a “weak back.” An examination report of his discharge noted his back had been taped in 1952 and that he was then asymptomatic. In 1954, Cousin unsuccessfully sought disability compensation for his back condition. Between 1979-2009, Cousin filed three unsuccessful applications to reopen that claim. In 2012, Cousin filed another application. In 2013, the regional office granted him service connection for a back disability effective January 2012. Cousin filed a Notice of Disagreement, arguing that an earlier effective date was warranted because there was clear and unmistakable error (CUE) in the prior denials. The Veterans Court upheld the denial, finding the Board “offered a plausible explanation for why the RO may have discounted the 1953 records.” The Federal Circuit reversed. Given the proper legal interpretation of defect in the regulation then in effect and the government’s factual concessions, the regional office could not, without error, have determined that spondylolysis was a “defect.” The 1954 decision contained CUE.VA View "Cousin v. Wilkie" on Justia Law

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The Fifth Circuit affirmed the dismissal of plaintiff's action against the Installation Commander of Camp Shelby Joint Forces Training Center and the denial of remand. The court held that the district court did not err by finding that Colonel Michel was a federal employee under 32 U.S.C. 502(f) and 28 U.S.C. 26781, and was therefore a federal employee shielded by the Westfall Act from individual liability. The court also held that the district court appropriately credited the certifications made here when it decided to substitute the United States as the party defendant in Michel's place and deny remand. Finally, plaintiff waived her challenge of the district court's order granting defendants' motion to dismiss. View "Gilmore v. Mississippi" on Justia Law