While resolving an issue of Mississippi state property law, the Court provides a good example of an “Erie guess” involving canons of statutory interpretation in Marlow LLC v. BellSouth Telecommunications, No. 11-60394 (June 27, 2012).

In Smith & Fuller, P.A. v. Cooper Tire & Rubber Co., a law firm had inadvertently distributed documents, designated as confidential under a Rule 26(c) protetive order, during a conference of personal injury lawyers.  No. 11-20557 (June 21, 2012).  Pursuant to Fed. R. Civ. P. 37(b)(2)(C), the Court ordered the firm to reimburse Cooper for its fees and expenses incurred in rectifying the situation.  The Court found that the protective order was an “order to provide or permit discovery” as defined by Rule 37(b)(2), that the award was justified with “specific and well-reasoned grounds . . . that any lesser penalty would not have been an adequate future deterrent,” and that the affidavits of counsel were suficient to establish the amount awarded.  The Court noted that the firm had previously been sanctioned for another violation of a protective order involving Coooper.  Op. at 3 n.2 & 10.

The Court reviewed several Daubert rulings in the toxic tort case of Johnson v. Arkema, Inc., No. 11-50193 (June 20, 2012).  Under an abuse-of-discretion standard, it affirmed the exclusion of experts based on weaknesses in reliance upon (1) analysis of whether the materials at issue belonged to a “class of chemicals” known to cause disease; (2) state and federal exposure guidelines; (3) animal studies; and (4) the “temporal connection” between exposure and illness.  Op. at at 8-20.  The Court then affirmed the exclusion of an opinion based on a “differential diagnosis,” concluding that it was based on an unreliable presumption about general causation.  Id. at 22.  The Court concluded by reversing on a causation issue that did not require expert testimony, finding that the temporal connection between exposure and certain chronic injuries was close enough to allow trial — while also finding that the connection was to attenuated as to related chronic injuries.  Id. at 26.  A dissent took issue with the majority’s reasoning as to one well-credentialed toxicology expert.  Id. at 29.

The Court adddressed the contractual liability exclusion in a Texas CGL policy in the case of Ewing Construction v. Amerisure Insurance, No. 11-40512 (June 15, 2012).  The Court applied the “plain language of the exclusion,” guided by Gilbert Texas Construction LP v. Underwriters at Lloyd’s London, 327 S.W.3d 118 (Tex. 2010), and concluded that it reached a contractual commitment to complete a construction project.  Op. at 8.  The Court then examined whether an exception applied for liability that would exist even without the contract, and concluded that there was no such liability under Texas’s “con-tort” cases.  Id. at 9 (quoting Southwestern Bell v. DeLanney, 809 S.W.2d 493 (Tex. 1991).  The Court concluded by deferring the issue of the duty to indemnify, and acknowledging a point raised by the dissent about overlap between the “contract” and “your work” exclusions in a typical CGL contract.  Id. at 10.

The bankruptcy case of Bandi v. Becnel involved a dispute as to whether a debt was nondischargeable because it arose from fraud, or whether it fell within an exception for statements about “financial condition” in 11 U.S.C. § 523(a)(2)).  No. 11-30654 (June 12, 2012).  The Court found that the phrase “financial condition” should be construed “to connote the overall net worth” of the debtor, and thus did not include “[a] representation that one owns a particular residence or a particular commercial property” because the property could be subject to liens or other liabilities.  Op. at 8.  The Court reviewed a substantial body of law from its prior opinions, other Circuits, and the Supreme Court about the intricacies of this statute and other related provisions of the Bankruptcy Code.

In Greenwood 950 LLC v. Chesapeake Louisiana LP, the Court found an ambiguity in a Louisiana mineral lease, seeing two reasonable ways to harmonize clauses about obligations to “repair all surface damages” and “pay . . . all damages.”  No. 11-30436 (June 12, 2012) at 5-7 (emphasis added).  On the threshold Erie issue, the Court reminded: “[W]e look first and foremost ‘to the final decisions of Louisiana’s highest court’ rather than this Court’s prior applications of Louisiana law.”  Op. at 4 n.11 (quoting Holt v. State Farm, 627 F.3d 188, 191 (5th Cir. 2010)).

Mid-Continent Casualty v. Davis presented an insurance coverage dispute about a wrongful death claim by a construction worker.  No. 11-10142 (June 8, 2012).  Coverage turned on whether the worker was an employee or an independent contractor.   Applying the five-factor test from Limestone Products Distribution v. McNamara, 71 S.W.3d 308 (Tex. 2002), the Court affirmed a finding that the worker was an independent contractor.  Key facts were that the worker provided his own tools and supplies, largely controlled his own schedule and tasks, and was provided a 1099 rather than a W-2.  Op. at 13-14.

The Court briefly revisited personal jurisdiction in an unpublished opinion, ITL International v. Cafe Soluble, S.A., No. 11-60360 (rev’d June 7, 2012).  The case arose from a dispute between Mars, Inc. and a Latin American distributor, closely related to the dispute at issue in the recent case of ITL International v. Costenla, S.A.  The Court followed the same analytical framework, finding that the defendant’s contacts with Mississippi were not sufficiently related to the dispute to create jurisdiction.  It concluded by reminding that a dismissal for lack of personal jurisdiction should be without prejudice because it is not on the merits.

Environmental groups challenged several plans approved by the Department of the Interior for oil exploration and development in the Gulf of Mexico after the Deepwater Horizon accident.  In a group of consolidated cases, the Fifth Circuit dismissed the challenges on procedural grounds.  See, e.g., Gulf Restoration Network v. Salazar, No. 10-60411 (May 30, 2012).   Among other holdings, the Court found that the groups had standing as organizations to sue, op. at 8-10, and that case law about the effect of an agency’s allegedly “illegal [and] clandestine” internal policies did not excuse the groups’ failure to exhaust administrative remedies here.  Op. at 29.

In Continental Casualty v. North American Capacity Ins. Co., the district court required three primary carriers to split defense costs, while not allowing the excess insurer to recover defense costs from the primaries.  No. 10-20262 (May 30, 2012).  The Fifth Circuit affirmed on the cost-splitting issue, after careful review of the policies’ coverage triggers, scope, and “other insurance” clauses.  Op. at 15-20.  The Court reversed as to the excess carrier, finding it had a right of contractual subrogation, and distinguishing Mid-Continent Insurance v. Liberty Mutual, 236 S.W.3d 765 (Tex. 2007).