Wake Forest Law Review

By: Jason Wiener

Francis Dominic Murnaghan, Jr. was born in Baltimore, Maryland on June 20, 1920.[1]  After he received an undergraduate degree from Johns Hopkins University in 1941, he served his country during World War II as a U.S. Naval Reserve Lieutenant from 1942 to 1946.[2]  Upon graduating from Harvard Law School in 1948, he went into private practice in Pennsylvania until 1950 and then served as a staff attorney for the U.S. Department of State’s High Commission on Germany from 1950 to 1952.[3]  Before taking the bench, Judge Murnaghan was a partner at Venable, Baetjer and Howard and served as the Assistant Attorney General for the State of Maryland.[4]

From 1967 to 1970, Judge Murnaghan was president of the Baltimore City School Board.[5]  He served as president and then chairman of the Walters Art Gallery from 1963 until being named chairman emeritus in 1985.[6]  Known for his participation in the public and political spheres in Baltimore, he assisted in the successful campaigns of Senator Paul Sarbanes in 1976 and Governor Harry Hughes in 1978.[7]

On May 8, 1979, he was nominated to the U.S. Court of Appeals for the Fourth Circuit by Jimmy Carter.[8]  While on the bench, Judge Murnaghan wrote over 500 opinions and more than half as many concurrences and dissents.[9]  Known for his compassion and professionalism, his opinions had great impacts in the areas of civil rights, labor, First Amendment law.[10]

Although it is rare for a circuit to reverse a district court finding on a clearly erroneous standard of review, in United States v. Gregory, Judge Murnaghan reversed the lower court’s finding that the Sheriff of Patrick County, Virginia, was not discriminating against women in the hiring of deputies.[11]  Judge Murnaghan stated that the district court erred in its factual findings and found that the record indicated that Sheriff Gregory routinely engaged in discriminatory practices against women in violation of Title VII.[12]

In a notable dissent, Judge Murnaghan alone argued against the constitutionality of a Virginia statute that allowed the Commonwealth to collect the DNA of all convicted felons for a law enforcement data bank.[13]  Judge Murnaghan believed that the Commonwealth did not justify the statute with an important state interest that outweighed non-violent felons’ reasonable expectations of privacy.[14]  He went on to warn of his “deep, disturbing, and overriding concern that, without a proper and compelling justification, the Commonwealth may be successful in taking significant strides towards the establishment of a future police state, in which broad and vague concerns for administrative efficiency will serve to support substantial intrusions into the privacy of citizens.”[15]

Judge Murnaghan’s contributions helped strengthen the foundations of democracy and equality, and he will be remembered for his devotion to civil rights.[16]  On August 31, 2000, the Honorable Francis Dominic Murnaghan, Jr. died at the age of 80.[17]  Upon his death, the Baltimore Sun avowed, “Judge Murnaghan was one of the most admired figures in the legal establishment for his urbane scholarship, legal knowledge, and public spirit.”[18]

 

[1] Francis Dominic Murnaghan, Jr., Fed. Jud. Ctr., https://www.fjc.gov/node/1385506 (last visited Oct. 14, 2018).

[2] Id.

[3] Id.

[4] Biography of Judge Murnaghan, Francis D. Murnaghan Appellate Advocacy Fellowship, http://www.murnaghanfellowship.org/judge_murnaghan (last visited Oct. 14, 2018).

[5] Longtime Federal Appellate Judge Francis D. Murnaghan Dies at 80, Wash. Post (Sept. 1, 2000),  https://www.washingtonpost.com/archive/local/2000/09/01/longtime-federal-appellate-judge-francis-d-murnaghan-dies-at-80/d1be1771-8f0b-4d10-b094-77d7ac3820ba/?noredirect=on&utm_term=.1823226946fb.

[6] Id.

[7] Id.

[8] Fed. Jud. Ctr., supra note 1.

[9] Biography of Judge Murnaghan, supra note 4.

[10] Id.

[11] United States v. Gregory, 871 F.2d 1239, 1241 (4th Cir. 1989).

[12] Id. at 1247.

[13] Jones v. Murray, 962 F.2d 302, 311 (4th Cir. 1992).

[14] Id. at 312.

[15] Id. at 315.

[16] Biography of Judge Murnaghan, supra note 4.

[17] Fed. Jud. Ctr., supra note 1.

[18] Confirmation Hearing on the Nomination of Claude A. Allen, of Virginia, to be Circuit Judge for the Fourth Circuit; and Mark R. Filip, of Illinois, to be District Judge for the Northern District of Illinois Before the S. Comm. on the Judiciary, 108th Cong. 5 (2003) (statement of Sen. Paul S. Sarbanes).

By: Katherine Wenner & Holly Ingram

On February 6, 2018, the United States Court of Appeals for the Fourth Circuit published an opinion for Campbell v. Boston Scientific Corporation. The case affirmed a major products liability decision involving four plaintiffs, where each plaintiff received awards for over $4 million.

I. Facts and Procedural History

The case involved four plaintiffs who were each involved in a multidistrict litigation, which encompassed over 25,000 cases total. Defendant Boston Scientific Corporation (“BSC”) manufactured a transvaginal mesh prescription medical device, called Obtryx Transobturator Mid-Urethral Sling System (“Obtryx”) which was approved by the Food and Drug Administration (“FDA”) under its 510(k) approval process. That process approves products which are “substantially equivalent” to a device already approved on the market and does not require clinical trials. The problem with the device, according to the plaintiffs’ experts, was that it could degrade when implanted and cause the growth of scar tissue. Over the course of a few years, each of the plaintiffs experienced device dysfunction and brought separate lawsuits against BSC. Their claims were filed against BSC directly into a pre-existing Judicial Panel on Multidistrict Litigation, which is pending in the Southern District of West Virginia. The district court consolidated several cases before case-specific discovery began. BSC moved to conduct separate trials for the cases at issue today, but the motion was denied.

There were also two evidentiary motions that occurred prior to trial. In one motion, BSC moved to exclude evidence of the Marlex polypropylene’s MSDS, but this was denied. Additionally, plaintiffs moved to exclude evidence regarding the FDA’s 510(k) process and approval. This motion the district court granted.

Following an eleven-day trial, the jury returned verdicts in favor of plaintiffs, awarding $250,000 for past-compensatory damages, $1,000,000 for punitive damages, and future-compensatory damages ranging from $3–4.5 million dollars to each plaintiff.

BSC appealed the judgments on the grounds that the district court abused its discretion by (1) consolidating the four cases for trial; (2) permitting the MSDS evidence; and (3) excluding the 510(k) evidence. It also challenged the verdicts for lacking sufficient evidence and challenged the punitive damages awards, asserting there was an erroneous jury instruction.

II. The District Court did not abuse its discretion in consolidating the four cases, excluding the 510(k) evidence, or permitting the MSDS evidence.

The Fourth Circuit concluded that consolidating the independent cases did not render the decision unfair because the court first identified many common questions of law and fact across the trials. Additionally, the plaintiffs shared expert witnesses and presented much of the same evidence. Thus, the trials would have been largely repetitive and caused undue burdens, delays, and expenses. Moreover, the district court adequately endeavored throughout the trial to limit any potential jury confusion or prejudice. BSC lacked evidence to claim that the district court’s safeguards were inadequate. Further, although the four awards were similar, the damages were not identical. This evidenced that the merely similar values were because of the acute similarities between the injuries—which further justifies the consolidation. The Fourth Circuit ultimately notified that this illustrates the effectiveness of streamlining the judicial process, especially in cases such as this Multidistrict Litigation, which has over 25,000 cases involved.

Turning to the evidentiary dispute, the Fourth Circuit concluded that exclusion of the 510(k) evidence was not an abuse of discretion. BSC attempted to use this to argue that its conduct was reasonable. Yet, the court noted that although the 510(k) clearance may have said something about the safety of the product, it did not say anything very specific. Further, it would likely have only amplified the risk of confusion and wasted time. Thus, exclusion was not an abuse of discretion.

Next the Fourth Circuit concluded that including the MSDS was not inadmissible hearsay, as BSC so argued, because it was not admitted for the truth of the matter asserted. While it may have suggested that the company should have further investigated the safety of their product, it did not evince that the warning was actually correct. Thus, including the evidence was appropriate, and the district court did not abuse its discretion.

III. BSC was not entitled to judgment as a matter of law and the district court used the proper standard to instruct the jury on punitive damages.

Moving on to BSC’s contention that it was entitled to judgment as a matter of law, BSC argued that the plaintiffs did not have sufficient evidence for their claims. However, the Fourth Circuit noted that jury verdicts are only set aside in unusual circumstances, which were not present in this case. The plaintiffs identified several aspects of the Obtryx’s design that contributed to its danger and presented evidence of safer alternative designs that existed. BSC claimed that the jury should have been instructed that a safer alternative was an element of the plaintiffs’ claim, but the Fourth Circuit noted that this argument was made for the first time on appeal and was therefore inappropriate.

Under the failure to warn claims, BSC argued that the plaintiffs’ testimony was also inadequate. However, because the plaintiffs did provide testimony, then it was sufficient. The court agreed that expert testimony may have been helpful, but it was not required.

Finally BSC challenged that the district court’s jury instruction standards for punitive damages. However, the court concluded that the district court’s instruction was a correct statement of West Virginia law at the time. Since the time of trial, the West Virginia legislature has changed its statute regarding the award of punitive damages, but the new statute was not in effect at the time of the trial. Therefore, the punitive damages award was also affirmed.

IV. Conclusion

Because the district court did not abuse its discretion or use any improper legal standards, the judgments of the district court were affirmed.

Frontier-Kemper Constructors, Inc. v. Director

In this civil case, Frontier-Kemper appealed from a decision of the United States Department of Labor Benefits Review Board, which held Plaintiff was responsible for paying benefits to a coal miner under the Black Lung Benefits Act. Frontier-Kemper disputed its liability for the claim, but the Court concluded Frontier-Kemper was liable for payment. The main question was whether Frontier-Kemper was defined as an “operator” under the relevant statute, as only operators can be liable for black lung benefits claims. The Court concluded it was an “operator” for the purposes of this case and, therefore, affirmed.

Nardea v. Sessions 

This case pertained to a petition for review of an Order of Removal by the Department of Homeland Security. Nardea, a citizen of Argentina, was removed without receiving a hearing after entering the United States under the Visa Waiver Program and waiving his right to contest removal. He challenged his waiver status and the constitutionality of any waiver under the program. After considering the Visa Waiver Program and the facts surrounding Nardea’s entry, the Court determined that the evidence supported the conclusion that he waived his right to contest removal. Further, because Nardea could not show prejudice, he could not succeed on a procedural due process claim. Thus, his petition for review was denied.

Westmoreland Coal Co. v. Stallard

In this petition for review, Westmoreland Coal Company challeneged a final agency decision by the U.S. Department of Labor Benefits Review Board that awarded Stallard federal disability benefits under the Black Lung Benefits Act. The Court denied Westmoreland’s petition for review holding that there was substantial evidence to support the award of benefits and that the award accords with applicable law.

Penley v. McDowell County Board of Education

In this civil case, former McDowell County educator Penley appealed the District Court’s summary judgment and dismissal of his claim against the McDowell County Board of Education. The Fourth Circuit, finding no issue of material fact, affirmed the District Court’s summary judgment and held that Penley did not provide more than a speculation that the investigation into his behavior and recommendation of dismissal were in retaliation of his previous political speech. Summary judgment was affirmed for McDowell County.

By Mike Stephens

On February 2, 2017, the Fourth Circuit issued a published opinion in the criminal case United States v. Evans. The defendant, Jamal Evans, appealed his conviction and sentencing under 18 U.S.C. § 924(c)(1)(A) for the federal crime of carjacking. The District Court for the Eastern District of North Carolina denied Evans’ motion to dismiss, ruling that carjacking qualified as a “crime of violence” under § 924(c). The Fourth Circuit affirmed Evans’ conviction, holding that carjacking required the use of violent physical force and, therefore, was considered a crime of violence.

Facts and Procedural History

In July 2013, the defendant, Jamal Evans, was riding in a car with his friend, Amani Duke. Evans told Duke to drive to a nearby parking lot to meet Evans’ cousin. However, once in the parking lot, Evans pulled out a pistol, ordered Duke out of the car, and attempted to steal Duke’s wallet. Evans then shot Duke in each leg and drove off in Duke’s car.

A grand jury charged Evans with carjacking resulting in serious bodily injury, a violation of 18 U.S.C. § 2119(2), and with using a firearm during the carjacking, a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). Evans was also charged with additional crimes not at issue on appeal. Evans filed a motion to dismiss, arguing that the carjacking statute did not qualify as a “crime of violence” within the meaning of § 924(c). The district court denied Evans’ motion, ruling that carjacking qualified as a crime of violence under § 924(c). Evans entered a guilty plea, preserving his right to appeal the district court’s ruling that carjacking qualified as a crime of violence. Evans was ultimately sentenced to serve 216 months’ imprisonment. Evans appealed the district court’s judgment regarding his conviction and sentence for carjacking under § 924(c).

Carjacking is Considered a “Crime of Violence”

The Fourth Circuit’s analysis hinged on determining whether subsection (1) of the carjacking statute qualified as a crime of violence. The Fourth Circuit reasoned that if subsection (1) was considered a crime of violence, then the aggravated offense under subsection (2) that Evans was charged with “necessarily also qualifies as a crime of violence.” The Court examined the definition of a crime of violence under § 924(c)(3) and compared that to the elements of the carjacking statute.

§ 924(c)(3) defines a crime of violence as any felony that either:

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

The Court determined that the use of “physical force” also required the use of “violent force,” meaning the degree of force employed must be “capable of causing physical pain or injury to another person.” Because § 924(c)(3) contemplates only crimes that have “as an element. . .use of physical force,” the Court applied the “elements-based categorical approach” described by the Supreme Court to determine whether the carjacking statute fit within this definition.

Evans argued that because carjacking could be committed “by intimidation,” the offense did not include “the use, attempted use, or threatened use of force” required under § 924(c)(3). Evans argued that “intimidation,” as it is commonly defined, could include convictions for acts not contemplated by the carjacking statute. The government responded by arguing that “intimidation” within the full statutory phrase found in the carjacking statute signifies a threat to use violent force. The government argued that, under this reading of the statute, the use of intimidation to commit carjacking is covered by § 924(c)(3).

The Fourth Circuit relied their analysis in a recent decision, United States v. McNeal, to determine whether carjacking is considered a crime of violence. In McNeal, an element of the bank robbery statute at issue required the property be taken “by force and violence, or by intimidation.” The Fourth Circuit viewed this language similar enough to the element at issue under the carjacking statute, 18 U.S.C. § 2119. The Fourth Circuit held in McNeal that “intimidation” required the threatened use of physical force and the crime of bank robbery qualified as a crime of violence under § 924(c)(3). The Court noted that their decision in McNeal relied on the holdings from the Eleventh Circuit and the Second Circuit that concluded that carjacking under § 2119 was considered a crime of violence. The Fourth Circuit concluded that taking a motor vehicle “by force and violence” required the use of violent physical force and that the act of taking a motor vehicle “by intimidation” required threatened use of force. The Court was also careful to highlight that this decision did not alter their holding in United States v. Torres-Miguel.

Disposition

The Fourth Circuit ultimately held that the term “intimidation” in § 2119 includes a threat of violent force within the meaning of § 924(c)(3). Thus, Evans conviction for carjacking resulting in bodily injury under § 2119(2) is a crime of violence under 924(c)(3). Evans’ conviction and sentence under § 924(c) was affirmed.