Gary ROSS, Plaintiff and Appellant, v. RAGINGWIRE TELECOMMUNICATIONS, INC., Defendant and Respondent.
Joseph D. Elford, Oakland; Law Office of Stewart Katz, Stewart Katz and Costa Kerestenzis, Sacramento, for Plaintiff and Appellant. Robert A. Raich, Oakland, for California legislators as Amicus Curiae on behalf of Plaintiff and Appellant. Daniel Abrahamson, Tamar Todd and Theshia Naidoo, for American Pain Foundation, American Medical Women's Association, Lymphoma Foundation of America, American Nurses Association, California Nurses' Association, AIDS Action Council, National Women's Health Network, Doctors of the World-USA and Gay Men's Health Crisis as Amici Curiae on behalf of Plaintiff and Appellant. Theodore Cody, Los Angeles, and David Goldberg, for Protection and Advocacy, Inc., and Equal Rights Advocates as Amici Curiae on behalf of Plaintiff and Appellant. Jackson Lewis, D. Gregory Valenza, Marlena G. Gibbons, Patrick C. Mullin, Timothy C. Travelstead and Robert M. Pattison, San Francisco, for Defendant and Respondent. Deborah J. La Fetra, Sacramento, for Pacific Legal Foundation as Amicus Curiae on behalf of Defendant and Respondent. Suzanne B. Gifford and Richard A. Katzman, San Jose, for Santa Clara Valley Transportation Authority as Amicus Curiae on behalf of Defendant and Respondent. Cook Brown, Dennis B. Cook, Sacramento, and Ronald E. Hofsdal, for Western Electrical Contractors Association as Amicus Curiae on behalf of Defendant and Respondent.
The Compassionate Use Act of 1996 (Health & Saf.Code, § 11362.5, added by initiative, Prop. 215, as approved by voters, Gen. Elec. (Nov. 5, 1996)) gives a person who uses marijuana for medical purposes on a physician's recommendation a defense to certain state criminal charges involving the drug, including possession (Health & Saf.Code, § 11357; see id., § 11362.5, subd. (d)). Federal law, however, continues to prohibit the drug's possession, even by medical users. (21 U.S.C. §§ 812, 844(a)); see gonzales v. raich (2005) 545 U.S. 1, 26-29, 125 S.Ct. 2195, 162 L.Ed.2d 1; United States v. Oakland Cannabis Buyers' Cooperative (2001) 532 U.S. 483, 491-495, 121 S.Ct. 1711, 149 L.Ed.2d 722.
Plaintiff, whose physician recommended he use marijuana to treat chronic pain, was fired when a preemployment drug test required of new employees revealed his marijuana use. The lower courts held plaintiff could not on that basis state a cause of action against his employer for disability-based discrimination under the California Fair Employment and Housing Act (Gov.Code, § 12900 et seq.; see id., § 12940, subd. (a); hereafter the FEHA) or for wrongful termination in violation of public policy (see, e.g., Stevenson v. Superior Court (1997) 16 Cal.4th 880, 887, 66 Cal.Rptr.2d 888, 941 P.2d 1157; Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170, 176-178, 164 Cal.Rptr. 839, 610 P.2d 1330). We conclude the lower courts were correct: Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and duties of employers and employees. Under California law, an employer may require preemployment drug tests and take illegal drug use into consideration in making employment decisions. (Loder v. City of Glendale (1997) 14 Cal.4th 846, 882-883, 59 Cal.Rptr.2d 696, 927 P.2d 1200.) We thus affirm.
Plaintiff Gary Ross suffers from strain and muscle spasms in his back as a result of injuries he sustained while serving in the United States Air Force. Because of his condition, plaintiff is a qualified individual with a disability under the FEHA and receives governmental disability benefits. In September 1999, after failing to obtain relief from pain through other medications, plaintiff began to use marijuana on his physician's recommendation pursuant to the Compassionate Use Act.
On September 10, 2001, defendant RagingWire Telecommunications, Inc., offered plaintiff a job as lead systems administrator. Defendant required plaintiff to take a drug test. Before taking the test, plaintiff gave the clinic that would administer the test a copy of his physician's recommendation for marijuana. Plaintiff took the test on September 14 and began work on September 17. Later that week, the clinic informed plaintiff by telephone that he had tested positive for tetrahydrocannabinol (THC), a chemical found in marijuana. On September 20, defendant informed plaintiff he was being suspended as a result of the drug test. Plaintiff gave defendant a copy of his physician's recommendation for marijuana and explained to defendant's human resources director that he used marijuana for medical purposes to relieve his chronic back pain. Defendant's representative told plaintiff that defendant would call his physician, verify the recommendation, and advise him of defendant's decision regarding his employment. On September 21, defendant's board of directors met to discuss the matter and, on September 25, defendant's chief executive officer informed plaintiff that he was being fired because of his marijuana use.
Plaintiff's disability and use of marijuana to treat pain, he alleges, do not affect his ability to do the essential functions of the job for which defendant hired him. Plaintiff has worked in the same field since he began to use marijuana and has performed satisfactorily, without complaints about his job performance.
Based on these allegations, plaintiff alleges defendant violated the FEHA by discharging him because of, and by failing to make reasonable accommodation for, his disability. (Gov.Code, § 12940, subd. (a).) Plaintiff also alleges defendant terminated his employment wrongfully, in violation of public policy. (See Stevenson v. Superior Court, supra, 16 Cal.4th 880, 887, 66 Cal.Rptr.2d 888, 941 P.2d 1157; Tameny v. Atlantic Richfield Co., supra, 27 Cal.3d 167, 170, 176-178, 164 Cal.Rptr. 839, 610 P.2d 1330.) The superior court sustained defendant's demurrer without leave to amend and entered judgment for defendant. The Court of Appeal affirmed. We granted plaintiff's petition for review.
The FEHA declares and implements the state's public policy against discrimination in employment. (Gov.Code, §§ 12920-12921.) The particular section of the FEHA under which plaintiff attempts to state a claim, Government Code section 12940, provides that “[i]t shall be an unlawful employment practice ․ [¶] (a) For an employer, because of the ․ physical disability [or] medical condition ․ of any person, to refuse to hire or employ the person ․ or to bar or to discharge the person from employment․” An employer may discharge or refuse to hire a person who, because of a disability or medical condition, “is unable to perform his or her essential duties even with reasonable accommodations.” (Id., § 12940, subd. (a)(1) & (2).) The FEHA thus inferentially requires employers in their hiring decisions to take into account the feasibility of making reasonable accommodations.
Plaintiff's position might have merit if the Compassionate Use Act gave marijuana the same status as any legal prescription drug. But the act's effect is not so broad. No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law (21 U.S.C. §§ 812, 844(a)), even for medical users (see Gonzales v. Raich, supra, 545 U.S. 1, 26-29, 125 S.Ct. 2195, 162 L.Ed.2d 1; United States v. Oakland Cannabis Buyers' Cooperative, supra, 532 U.S. 483, 491-495, 121 S.Ct. 1711, 149 L.Ed.2d 722). Instead of attempting the impossible, as we shall explain, California's voters merely exempted medical users and their primary caregivers from criminal liability under two specifically designated state statutes. Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and obligations of employers and employees.
The Compassionate Use Act (Health & Saf.Code, § 11362.5) does not eliminate marijuana's potential for abuse or the employer's legitimate interest in whether an employee uses the drug. Marijuana, as noted, remains illegal under federal law because of its “high potential for abuse,” its lack of any “currently accepted medical use in treatment in the United States,” and its “lack of accepted safety for use ․ under medical supervision.” (21 U.S.C. § 812(b)(1); see Gonzales v. Raich, supra, 545 U.S. 1, 14, 125 S.Ct. 2195, 162 L.Ed.2d 1.) Although California's voters had no power to change federal law, certainly they were free to disagree with Congress's assessment of marijuana, and they also were free to view the possibility of beneficial medical use as a sufficient basis for exempting from criminal liability under state law patients whose physicians recommend the drug. The logic of this position, however, did not compel the voters to take the additional step of requiring employers to accommodate marijuana use by their employees. The voters were entitled to change the criminal law without also speaking to employment law.
The operative provisions of the Compassionate Use Act (Health & Saf.Code, § 11362.5) do not speak to employment law. Except in their treatment of physicians, who are protected not only from “punish[ment]” but also from being “denied any right or privilege ․ for having recommended marijuana” (id., subd. (c)), the act's operative provisions speak exclusively to the criminal law. Subdivision (d) of section 11362.5 provides that “[s]ection 11357, relating to the possession of marijuana, and [s]ection 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.” Subdivision (e) of section 11362.5 simply defines “primary caregiver.” The operative provisions do not mention employment law.
Plaintiff would read the first of these findings and declarations (Health & Saf.Code, § 11362.5, subd. (b)(1)(A)) as if it created a broad right to use marijuana without hindrance or inconvenience, enforceable against private parties such as employers. The provision states in full: “The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows: [¶] (A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.” Not to require employers to accommodate marijuana use, plaintiff contends, “would eviscerate the right promised to the seriously ill by the California electorate.” To the contrary, the only “right” to obtain and use marijuana created by the Compassionate Use Act is the right of “a patient, or ․ a patient's primary caregiver, [to] possess[ ] or cultivate[ ] marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician” without thereby becoming subject to punishment under sections 11357 and 11358 of the Health and Safety Code. (Id., § 11362.5, subd. (d).) An employer's refusal to accommodate an employee's use of marijuana does not affect, let alone eviscerate, the immunity to criminal liability provided in the act. We thus give full effect to the limited “right to obtain and use marijuana” (id., subd. (b)(1)(A)) granted in the act (id., subd. (d)) by enforcing it according to its terms.
Arguing against this conclusion, plaintiff notes that “ ‘ “[the] power of the initiative must be liberally construed ․ to promote the democratic process.” ’ ” (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 219, 149 Cal.Rptr. 239, 583 P.2d 1281, quoting San Diego Bldg. Contractors Assn. v. City Council (1974) 13 Cal.3d 205, 210, fn. 3, 118 Cal.Rptr. 146, 529 P.2d 570.) There is no question, however, that the voters had the power to change state law concerning marijuana in any respect they wished. Thus, the question before us is not whether the voters had the power to change employment law, but whether they actually intended to do so. As we have explained, there is no reason to believe they did. For a court to construe an initiative statute to have substantial unintended consequences strengthens neither the initiative power nor the democratic process; the initiative power is strongest when courts give effect to the voters' formally expressed intent, without speculating about how they might have felt concerning subjects on which they were not asked to vote. As plaintiff notes, “[t]he judiciary's traditional role of interpreting ambiguous statutory language or ‘filling in the gaps' of statutory schemes is, of course, as applicable to initiative measures as it is to measures adopted by the Legislature.” (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1202, 246 Cal.Rptr. 629, 753 P.2d 585.) We detect, however, no relevant ambiguity in the Compassionate Use Act, which simply does not speak to employment law. In any event, our power to resolve ambiguities in statutory language is only a tool for achieving the ultimate goal of statutory interpretation, which is to effectuate the enactors' intent.
Finally, plaintiff contends that legislation enacted after the Compassionate Use Act (Health & Saf.Code, § 11362.5) requires employers to accommodate employees' use of medical marijuana at home. Plaintiff attempts to find such a rule in Health and Safety Code section 11362.785, subdivision (a) (added by Stats.2003, ch. 875, § 2), which took effect more than two years after defendant terminated plaintiff's employment. The statute provides as follows: “Nothing in this article shall require any accommodation of any medical use of marijuana on the property or premises of any place of employment or during the hours of employment or on the property or premises of any jail, correctional facility, or other type of penal institution in which prisoners reside or persons under arrest are detained.” (Health & Saf.Code, § 11362.785, subd. (a).) Plaintiff would read this language as if it articulated express exceptions to a general requirement of accommodation that appears only implicitly. Plaintiff's interpretation might be plausible if the failure to infer a requirement of accommodation would render the statute meaningless, but such is not the case. Even without inferring a requirement of accommodation, the statute can be given literal effect as negating any expectation that the immunity to criminal liability for possessing marijuana granted in the Compassionate Use Act gives medical users a civilly enforceable right to possess the drug at work or in custody.
In any event, given the controversy that would inevitably have attended a legislative proposal to require employers to accommodate marijuana use, we do not believe that Health and Safety Code section 11362.785, subdivision (a), can reasonably be understood as adopting such a requirement silently and without debate.
We thus conclude that plaintiff cannot state a cause of action under the FEHA based on defendant's refusal to accommodate his use of marijuana.
Defendant contends his discharge violated fundamental public policies supported by the Compassionate Use Act (Health & Saf.Code, § 11362.5), the FEHA (Gov.Code, § 12900 et seq.), and the privacy clause of the California Constitution (Cal. Const., art. I, § 1). We disagree.
The Compassionate Use Act (Health & Saf.Code, § 11362.5), as we have explained, simply does not speak to employment law. Nothing in the act's text or history indicates the voters intended to articulate any policy concerning marijuana in the employment context, let alone a fundamental public policy requiring employers to accommodate marijuana use by employees. Because the act articulates no such policy, to read the FEHA in light of the Compassionate Use Act leads to no different result. Plaintiff argues that the statutory provision on which a wrongful termination claim is based “does not have to ․ prohibit the employer's precise act․” (Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 80-81, 14 Cal.Rptr.3d 893.) Even so, the provision in question still “ ‘must sufficiently describe the type of prohibited conduct to enable an employer to know the fundamental public policies that are expressed in that law’ ” (id. at p. 80, 14 Cal.Rptr.3d 893, quoting Sequoia Ins. Co. v. Superior Court (1993) 13 Cal.App.4th 1472, 1480, 16 Cal.Rptr.2d 888; see Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1256, fn. 9, 32 Cal.Rptr.2d 223, 876 P.2d 1022) and to “ ‘have adequate notice of the conduct that will subject [the employer] to tort liability to the employees [it] discharge[s]’ ” (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 79, 78 Cal.Rptr.2d 16, 960 P.2d 1046, quoting Stevenson v. Superior Court, supra, 16 Cal.4th 880, 889, 66 Cal.Rptr.2d 888, 941 P.2d 1157). The Compassionate Use Act did not put defendant on notice that employers would thereafter be required under the FEHA to accommodate the use of marijuana.
Plaintiff also argues that his discharge violated the public policy that underlies an adult patient's right “to determine whether or not to submit to lawful medical treatment” (Cobbs v. Grant (1972) 8 Cal.3d 229, 242, 104 Cal.Rptr. 505, 502 P.2d 1)-a right we have located both in the privacy clause of the state Constitution (art. I, § 1) and in the common law. (Conservatorship of Wendland (2001) 26 Cal.4th 519, 531-532, 110 Cal.Rptr.2d 412, 28 P.3d 151.) The body of law to which plaintiff refers protects the right of competent adult patients to refuse medical treatment (id. at p. 531, 110 Cal.Rptr.2d 412, 28 P.3d 151) and imposes, inferentially, an obligation on health care providers to seek patients' informed consent before undertaking medical procedures (ibid.). Defendant's decision not to accommodate plaintiff's marijuana use does not implicate plaintiff's right to refuse medical treatment.
We thus conclude plaintiff cannot state a cause of action for wrongful termination in violation of public policy.
Under this state's Compassionate Use Act of 1996 (Health & Saf.Code § 11362.5; hereafter the Compassionate Use Act), doctor-recommended marijuana use as a medical treatment is “not subject to criminal prosecution or sanction.” (Health & Saf.Code, § 11362.5, subd. (b)(1)(B).) In a decision conspicuously lacking in compassion, however, the majority holds that an employer may fire an employee for such marijuana use, even when it occurs during off-duty hours, does not affect the employee's job performance, does not impair the employer's legitimate business interests, and provides the only effective relief for the employee's chronic pain and muscle spasms. I disagree.
The majority's holding disrespects the will of California's voters who, when they enacted the Compassionate Use Act, surely never intended that persons who availed themselves of its provisions would thereby disqualify themselves from employment. Moreover, as I will explain, unless an employer can demonstrate that an employee's doctor-approved use of marijuana under the Compassionate Use Act while off duty and away from the jobsite is likely to impair the employer's business operations in some way, or that the employer has offered another reasonable and effective form of accommodation, the employer's discharge of the employee is disability discrimination prohibited by the state Fair Employment and Housing Act (Gov.Code, § 12900 et seq.; hereafter the FEHA).
I agree with the majority, however, that because federal law prohibits marijuana possession (21 U.S.C. §§ 812, 844(a)), discharging an employee for off-duty, physician-recommended marijuana use will not support a claim of wrongful discharge in violation of public policy (see Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330).
As a result of injuries he sustained in January 1983 during his service with the United States Air Force, plaintiff Gary Ross suffers from a lower back strain and muscle spasms. In September 1999, after muscle relaxants and conventional medications had failed to provide relief from the pain and muscle spasms, and on his doctor's recommendation, plaintiff began using marijuana as a medication for his back problems.
In September 2001, plaintiff accepted a job with defendant RagingWire Telecommunications, Inc. (RagingWire) as a lead systems analyst. Since beginning treatment with marijuana, plaintiff had held similar employment, and his disability and marijuana use had not impaired his job performance. After hiring plaintiff, RagingWire required him to take a drug test. Plaintiff gave the clinic administering the test a copy of his doctor's written recommendation to use marijuana in accordance with the state Compassionate Use Act.
Not surprisingly, plaintiff's test results were positive for tetrahydrocannabinol, the active chemical in marijuana. Plaintiff presented his doctor's marijuana recommendation to RagingWire's human resources director, explaining that he used marijuana to treat his chronic back pain in accordance with the state Compassionate Use Act. Nevertheless, without offering any other form of accommodation for his back condition, RagingWire discharged plaintiff because of his at-home, doctor-recommended marijuana use.
Plaintiff sued RagingWire for disability discrimination in violation of the FEHA, breach of contract, and wrongful discharge in violation of public policy. The trial court sustained RagingWire's demurrer without leave to amend and dismissed plaintiff's complaint, and the Court of Appeal affirmed.
“(a) This section shall be known and may be cited as the Compassionate Use Act of 1996.
“(A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.
“(B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.
“(C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.
“(2) Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes.
“(c) Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes.
“(d) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.
Courts must construe statutes to effectuate the purpose of the law. (Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1087, 29 Cal.Rptr.3d 234, 112 P.3d 623.) As explained by the statute's words quoted above, the purpose of the Compassionate Use Act is to allow California residents to use marijuana, when a doctor recommends it, to treat medical conditions, including chronic pain, without being subject “to criminal prosecution or sanction.” (Health & Saf.Code, § 11362.5, subd. (b)(1)(B), italics added.) The majority's construction defeats, rather than effectuates, that purpose. The majority renders illusory the law's promise that responsible use of marijuana as a medical treatment will be free of sanction. The majority allows employers to impose the sanction of job termination on those employees who use marijuana under the statute's provisions. The majority's decision leaves many Californians with serious illnesses just two options: continue receiving the benefits of marijuana use “in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or [ ] other illness” (Health & Saf.Code, § 11362.5, subd. (b)(1)(A)) and become unemployed, giving up what may be their only source of income, or continue in their employment, discontinue marijuana treatment, and try to endure their chronic pain or other condition for which marijuana may provide the only relief. Surely this cruel choice is not what California voters intended when they enacted the state Compassionate Use Act.
The majority says that the FEHA requires the employer to make only “reasonable accommodation” for an employee's disability (Gov.Code, § 12940, subd. (m)), and that accepting an employee's physician-approved, off-duty marijuana use for medical treatment is not a “reasonable accommodation” because federal law prohibits marijuana possession (21 U.S.C. §§ 812, 844(a)). I disagree.
The FEHA sets forth an illustrative list of measures that may constitute reasonable accommodation, including (1) “[m]aking existing facilities used by employees readily accessible to, and useable by, individuals with disabilities,” and (2) “[j]ob restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modification of examinations, training materials or policies, [and] the provision of qualified readers or interpreters․” (Gov.Code, § 12926, subd. (n)(1) & (2), italics added.) Thus, the accommodations that the FEHA requires may include adjustment or modification of an employer's policy, such as a policy concerning employee drug use.
Here, plaintiff's complaint alleges in substance that marijuana use is essential to provide him relief from the chronic pain and muscle spasms of his disabling back condition, that more conventional medications have not provided similar relief, and that effective treatment is necessary for him to work productively. RagingWire has not argued that plaintiff's requested accommodation would interfere with the rights or interests of its other employees. Accordingly, the reasonableness of the proposed accommodation of allowing plaintiff to use marijuana at home, as an exception to RagingWire's normal drug-screening policies, turns on how it would affect RagingWire's legitimate interests as an employer and, more specifically, whether it would impose an “undue hardship”-defined as “an action requiring significant difficulty or expense”-on the operation of the RagingWire's business. (Gov.Code, §§ 12940, subd. (m), 12926, subd. (s); see Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 356, 118 Cal.Rptr.2d 443.) To establish that plaintiff's proposed accommodation was unreasonable, therefore, RagingWire must show that, because marijuana possession is illegal under federal law, an employee's off-duty and offsite use of marijuana would adversely affect its business operations.
RagingWire argues that, under these state and federal laws, tolerating plaintiff's doctor-approved marijuana use would jeopardize its ability to contract with state agencies or to obtain federal grants. Both the state and federal drug-free workplace laws are concerned only with conduct at the jobsite, however. RagingWire argues that an employee who ingested marijuana at home but remained under its influence at work might be viewed as “using” marijuana at work. But plaintiff has not sought an accommodation that would allow him to possess or be under the influence of marijuana at work. The drug-free workplace laws are not concerned with employees' possession or use of drugs like marijuana away from the jobsite, and nothing in those laws would prevent an employer that knowingly accepted an employee's use of marijuana as a medical treatment at the employee's home from obtaining drug-free workplace certification.
Because this case arises on demurrer, RagingWire has presented no evidence to substantiate its claim that accommodating plaintiff's doctor-recommended use of marijuana would necessarily or likely have substantial adverse effects on its business operations. In the absence of such evidence, there is no basis for the majority to conclude that accommodating plaintiff's doctor-approved marijuana use would be unreasonable within the meaning of the FEHA. Therefore, plaintiff's complaint states a cause of action under California's FEHA.
A necessary implication of this reasoning is that in the absence of a legitimate medical explanation, test results showing a job applicant's drug use are generally a sufficient basis to deny employment. (See Loder, supra, 14 Cal.4th at p. 883, fn. 15, 59 Cal.Rptr.2d 696, 927 P.2d 1200 (lead opn. of George, C.J.); Pilkington Barnes Hind v. Superior Court (1998) 66 Cal.App.4th 28, 34, 77 Cal.Rptr.2d 596.) Another necessary implication of Loder's reasoning is that the likely impacts on the employer's business operations-in the form of increased absenteeism, diminished productivity, greater health costs, increased safety problems, potential liability to third parties, and more frequent turnover-provide the appropriate yardstick for measuring the employer's legitimate interests in this context.
Loder is not directly relevant here because plaintiff is not challenging RagingWire's right to conduct preemployment drug testing, and because the program at issue in Loder sought to detect the presence of drugs “for which the applicant [had] no legitimate medical explanation” (Loder, supra, 14 Cal.4th at p. 856, 59 Cal.Rptr.2d 696, 927 P.2d 1200 (lead opn. of George, C.J.)). By contrast, plaintiff uses marijuana as a doctor-recommended treatment under the state Compassionate Use Act for a disabling physical condition. No evidence before this court establishes that use of a controlled substance under a doctor's recommendation poses the same risks of excessive absences and diminished productivity that a majority of this court relied on in Loder to uphold a drug testing program.
Considered strictly in terms of its physical effects relevant to employee productivity and safety, and not its legal status, marijuana does not differ significantly from many prescription drugs-for example, hydrocodone (Vicodin), hydromorphone (Dilaudid), oxycodone (OxyContin), methylphenidate (Ritalin), methadone (Dolophine), and diazepam (Valium)-that may affect cognitive functioning and have a potential for abuse. The medical use of any such drug poses some risks of absenteeism and impaired productivity. Indeed, many nonprescription medications taken for the common cold, seasonal allergies, and similar minor afflictions frequently have side effects, such as drowsiness or dizziness, that may impair productivity. The majority does not deny that the FEHA may require an employer to accommodate a disabled employee's doctor-approved medical use of other substances that potentially could impair job performance.
I conclude, for these reasons, that plaintiff's complaint states a cause of action for disability discrimination under California's FEHA.
To support a claim for wrongful termination in violation of public policy, a policy must be “delineated in either constitutional or statutory provisions”; it must be “ ‘public’ in the sense that it ‘inures to the benefit of the public’ rather than serving merely the interests of the individual”; it must have been well-established “at the time of the discharge”; and it must be “fundamental” and “substantial.” (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 894, 66 Cal.Rptr.2d 888, 941 P.2d 1157.) Here, to support his wrongful discharge claim, plaintiff relies on the public policies delineated in California's FEHA and Compassionate Use Act.
The policies delineated in the Compassionate Use Act will not support plaintiff's common law wrongful discharge claim. Although the aim of that initiative measure was to give qualified patients a right to use marijuana as treatment for illness without being subject to criminal prosecution or sanction (Health & Saf.Code, § 11362.5, subd. (b)(1)(A)-(B)), the measure implicitly recognized that achieving that goal fully would require the cooperation of the federal government; to this end, the measure included as another of its purposes “[t]o encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana” (id., § 11362.5, subd. (b)(1)(C)). To date, however, that goal has not been achieved, and simple possession of marijuana remains a crime under federal law, with no medical necessity exception or defense. (United States v. Oakland Cannabis Buyers' Cooperative (2001) 532 U.S. 483, 486, 494, 121 S.Ct. 1711, 149 L.Ed.2d 722.) That being so, qualified patients cannot be said to fully enjoy a right under state law to use marijuana as a medical treatment, nor can the state's policy be deemed sufficiently fundamental and substantial to support a common law wrongful discharge claim.
Nor can plaintiff support his claim by the policies delineated in the FEHA or other laws prohibiting discrimination against the disabled. As a general rule, the public policy against disability discrimination, articulated in the FEHA and other statutes, inures to the public's benefit and is sufficiently substantial and fundamental to support a cause of action for wrongful discharge in violation of public policy. (City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1159-1161, 77 Cal.Rptr.2d 445, 959 P.2d 752.) In the particular context of accommodating an employee's physician-approved use of marijuana to treat a disabling medical condition, however, that policy must be viewed against the backdrop of both federal criminal laws, which prohibit marijuana possession without a medical use exception, and the federal Americans with Disabilities Act, which excludes from its protection “any employee or applicant who is currently engag[ed] in the illegal use of drugs, when the covered entity acts on the basis of such use” (42 U.S.C. § 12114 (a)). A state law policy that rests on a proposition that Congress and federal law have rejected-here the proposition that marijuana has acceptable uses for medical treatment-cannot be considered sufficiently substantial and fundamental to support a common law tort claim for wrongful discharge.
Because plaintiff has not identified a policy that is sufficiently fundamental and substantial to support his wrongful discharge claim, I agree that the trial court did not err in sustaining RagingWire's demurrer to that claim.
California voters enacted the Compassionate Use Act to allow marijuana to be used for medical treatment on a doctor's recommendation. Although there have been well-publicized abuses of the law for financial gain or personal gratification, the Legislature has acted to curb those abuses while still allowing marijuana to be available for those with genuine medical need. (See, e.g., Health & Saf.Code, §§ 11362.7-11362.9, added by Stats.2003, ch. 875.) By its decision today, however, the majority has seriously compromised the Compassionate Use Act, denying to those who must work for a living its promised benefits “in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or ․ other illness” (Health & Saf.Code, § 11362.5, subd. (b)(1)(A)). The majority gives employers permission to fire any employee who uses marijuana on a doctor's recommendation, without requiring the employer to show that this medical use will in any way impair the employer's business interests. Absent such a showing of business impairment, I would hold that neither the Compassionate Use Act nor the FEHA allows an employer to fire an employee for offsite and off-duty, doctor-recommended marijuana use as a medical treatment.
I would reverse the Court of Appeal's judgment.
1. Plaintiff expressly disclaims any intention to use or possess marijuana at work.
WE CONCUR: GEORGE, C.J., and BAXTER, CHIN, and CORRIGAN, JJ.


Do Both Spouses Need to Sign Contracts?
April 13, 2018 March 14, 2018 / Julie Brook, Esq.
When one spouse is entering into a contract, is it legally required that the other spouse also sign it? And what would be the ramifications if the other spouse didn’t?
Community personal property. Family Code §1100(c) prohibits a spouse from selling, conveying, or encumbering community personal property “used as the family dwelling, or the furniture, furnishings, or fittings of the home, or the clothing or wearing apparel of the other spouse or minor children which is community personal property” without the other spouse’s written consent.
Community business property. A spouse who’s operating or managing a business (or an interest in a business) that’s all or substantially all community personal property may act alone in all transactions, but must give prior written notice to the other spouse of “any sale, lease, exchange, encumbrance, or other disposition of all or substantially all of the personal property used in the operation of the business”—regardless how the property is titled. Fam C §1100(d). If the required notice isn’t given, the other spouse has the remedies set out in Fam C §1101 (including, e.g., a right to an accounting), but the validity of the transaction or of any interest transferred isn’t affected. Fam C §1100(d).
Securities. Under Corp C §25246 (a criminal statute), it’s unlawful for any broker-dealer or agent to require, as a condition to the purchase or sale of securities in the name of a married person, that the prior consent or authorization of the spouse of that person be obtained. The term “broker-dealer” is broadly defined in Corp C §25004(a) to draw in issuers of securities.
Community real property. Both spouses (either personally or through an authorized agent) must join in the execution of any instrument by which community real property is sold, conveyed, or encumbered, or is leased for longer than 1 year. Fam C §1102(a). But conveyances by one spouse alone of property titled in the name of that spouse to a lessee, purchaser, or encumbrancer acting in good faith without knowledge of the marriage relationship are presumed valid. Fam C §1102(c)(2).
Regardless of whether both spouses sign a particular document, each spouse has potential liability to the other for a breach of fiduciary duty because both spouses have fiduciary duties to each other with respect to the management and control of their community property. Fam C §§721, 1100. This means that each spouse has a duty to act with the highest good faith and fairness towards the other, and neither spouse can take any unfair advantage of the other.
For extensive discussion of the fiduciary duties of spouses in family businesses and family financial transactions, turn to CEB’s Understanding Fiduciary Duties in Business Entities, chap 6. Get guidance on executions and signatures, including sample forms of spousal consent, in CEB’s Drafting Business Contracts: Principles, Techniques & Forms, chap 18. Also check out the discussion of contractual obligations with respect to the spouse of the person entering into the contract in CEB’s California Law of Contracts §4.43.
Let’s Buy a Beach House Together! Or Maybe Not.


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We are a small firm, which means the Randle Law Office team will devote our collective experience and expertise to give you and your case personalized attention. Not all boutique law firms are practiced in litigation, but we are ready to take your matter to court, if need be.
Individuals, as well as small and medium-sized businesses, are often at a disadvantage when suing or being sued for contract issues, fraud claims, allegations of deceptive trade practices, and other legal issues that typically arise in our increasingly complex society.
Whether you are suing on a simple debt or on a piece of complex business litigation, hiring a lawyer can be the most important decision you make, whether you are an individual or sole member LLC, or a company with hundreds of employees. Typically, the larger the law firm, the higher the fees. Oftentimes, lawyer fees result from over-staffing a case, which can be good business for a law firm, but bad business for the client.
The Randle Law Office team works closely with our clients to establish reasonable objectives and understands the need to resolve commercial disputes settled fairly and promptly.
■ Concerned Property Owners of the Normayburn Estates Subdivision v. The Providence Home Health Services, Inc., Teresita L. Alquero, and Romeo Alquero; Cause No. 10-DCV-182005; in the 268th Judicial District Court of Fort Bend County, Texas. The concerned property owners of Normayburn Estates Subdivision (in Fort Bend County) sued The Providence Home Health Services for failure to comply with the deed restrictions of Normayburn Estates, which constituted a distinct and substantial breach of the applicable restrictive covenants. Civil damages were pled and an application for a temporary and permanent injunction was filed. Settlement was reached at the 12th hour (during trial).
■Marinepar v. Commerce Trading, Inc., International Wood, L.P., Imports International, Ltd., Brazilian Direct d/b/a Commerce Trading, Inc. and Richard W. Neelley v Ricardo Slaviero, Mohawk Carpet Distribution, L.P., Mohawk Industries, Inc. and Finest Brazilian Imports, Inc. and d/b/a Finest Floors, Dan Cosgrove Individually and d/b/a Brazilian Direct, Ltd., Cause No. 2006-18031; in the 61st Judicial District Court of Harris County, Texas. Successfully defended individual against personal liability in multi-party complex commercial case involving the financing and international importation of exotic hardwood flooring.
■Hartford Fire Insurance Company v. City of Mont Belvieu, Texas and Williams Industries, Inc.; 611 F.3d 289 (5th Cir. Tex. 2010). Successfully litigated performance bond claim against Hartford Fire Insurance Company which resulted in a jury verdict awarding city $995,000.00. The Fifth Circuit reversed and rendered on appeal in favor of Hartford as a matter of law.
■Cernosek Enterprises, Inc., CJN Investments, Inc. and Anthony Cernosek vs. City of Mont Belvieu and Enterprise Products Operating, LLC; 2011 Tex. App. LEXIS 1770 (Tex. App. Houston 1st Dist. Mar. 10, 2011). Successfully defended City against collateral attack of settlement agreement arising under a previous lawsuit titled City of Mont Belvieu v. Enterprise Prod. Operating, L.P., 2007 Tex. App. LEXIS 1395 (Tex. App. 2007). First District Court of Appeals affirmed trial court decision granting the City’s plea to the jurisdiction and summary judgment.
■SignAd, Ltd. v. City of Mont Belvieu and Mont Belvieu Board of Adjustment; Cause No. 23618; In the District Court of Chambers County, Texas, 344th Judicial District. Successfully defended the City against vested right and constitutional challenges to a city zoning ordinance that banned outdoor billboard advertising and prohibited off-premise signs. City prevailed at trial; case settled on appeal.
■City of Cresson v. City of Granbury, 2007 Tex. App. LEXIS 3057 (Tex. App. 2007). Annexation.
■City of Cresson v. City of Granbury, 245 S.W.3d 61 (Tex. App.—Fort Worth 2008, pet. filed) (op. on rh’g). Annexation.
■In re City of Cresson, 245 S.W.3d 72, 2008 Tex. App. LEXIS 972 (Tex. App.—Fort Worth 2008). Annexation.

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Mark B. HARDMAN, Deceased, Petitioner, v. MARINE TERMINALS CORPORATION; Signal Mutual Indemnity Association, Ltd.; Director, Office of Workers’ Compensation Program, Respondents.
Mark B. Hardman petitions for review of the decision of the United States Department of Labor’s Benefits Review Board (BRB) which affirmed the award of fees made by the District Director (Director) to Hardman’s attorney, Charles Robinowitz, for his services and those of his paralegal. We deny the petition.
Hardman was entitled to obtain an award of a reasonable attorney’s fee for Robinowitz for the services provided to Hardman by Robinowitz and his paralegal. See 33 U.S.C. § 928(a); 20 C.F.R. § 702.132(a). He asserts that the Director erred in various ways in deciding the amount of that fee and that the BRB erred when it affirmed the award. We review the decision of the BRB “for abuse of discretion.” See Christensen v. Stevedoring Servs. of Am., 557 F.3d 1049, 1052 (9th Cir. 2009).
(1) Hardman first asserts that it was error to use the national Consumer Price Index (CPI) to adjust the baseline hourly rates for 2012, which were selected by the Director, to increase those rates to the current market rate for later years. We disagree. Our cases have made it plain that in determining the amount of reimbursement for counsel’s fees in obtaining an award under the Longshore and Harbor Workers’ Compensation Act 1 (the Act), the rate should be “in line with [the rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.”2 When sufficient time has passed between the dates services are actually rendered and the date on which fees are awarded, the rates should usually be increased to account for that delay. See Anderson v. Director, 91 F.3d 1322, 1324–25 (9th Cir. 1996); see also Missouri v. Jenkins ex rel. Agyei, 491 U.S. 274, 283–84, 109 S.Ct. 2463, 2469, 105 L.Ed.2d 229 (1989); cf. Christensen, 557 F.3d at 1056.
The parties do not contest the proposition that it was proper to increase the rates over those for 2012. We acknowledge that there is a Portland–Salem area CPI figure, that the Director used the national CPI figure, and that the BRB affirmed without explaining why the latter, rather than the former, was used. In tailoring the fee rates to the general area where Robinowitz’s services were rendered, the BRB and the Director could have chosen the Portland–Salem CPI, but they did not abuse their discretion when they decided to choose the more widely used and relied upon 3 national CPI.
(2) Hardman next asserts that it was error to refuse to increase the rates determined for 2013 and 2014 up to market rates for 2016, even though the rates for 2007 to 2011 were so increased. We do not agree. As noted above, reimbursement rates are normally increased to account for delay from the dates services are rendered to the date of the award. However, we have held that the increase is not required for services rendered when the BRB decides that the delay was not “long enough to merit augmentation.” See Christensen, 557 F.3d at 1056. Under the circumstances we decided that it “was not an abuse of discretion” to deny a delay enhancement for a two-year period. Id. The BRB applied that exception here. Hardman suggests that Christensen was wrongly decided, and should be overturned. We cannot overturn that case,4 and we decline to call for an en banc review sua sponte.5 Beyond that, Hardman alludes to an issue regarding the decision about the length of the delay here. However, he presents no reasoned briefing on that subject, and we deem the issue waived. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994); see also Fed. R. App. P. 28(a)(8)(A).
(3) Hardman finally argues that the Director erred when he set the base rate for Robinowitz. Again, we disagree. In calculating the base hourly rate for Robinowitz, the Director relied upon one area-of-practice group in the 2012 Oregon Bar Survey (the Survey) results for the Portland, Oregon area, that is, “Civil Litigation, Plaintiff – Personal Injury.” Hardman argues that the choice was improper because personal injury attorneys do not charge hourly rates, and therefore, the rates listed in the Survey could not be market rates. He presents no evidence of that, and we have no reason to think that the Survey’s data collection methods and presentation were in error. Moreover, the Director explained that the work Robinowitz does “is more favorably compared with plaintiff’s personal injury cases with a single client, a few issues, two to three parties, maybe a few experts, and relatively little discovery.” The BRB agreed. While not a lengthy disquisition, that reflects a considered reason for the decision; it was enough. In short, the Director and the BRB satisfactorily explained why the rate group selected here properly reflected the correct rate for Robinowitz’s practice area. That was not an abuse of discretion.
1. See 33 U.S.C. §§ 901–50.
2. Shirrod v. Director, 809 F.3d 1082, 1086 (9th Cir. 2015) (internal quotation marks omitted); see also Christensen, 557 F.3d at 1053.
3. See, e.g., Jawad v. Barnhart, 370 F.Supp.2d 1077, 1083–89 (S.D. Cal. 2005).
4. See Lair v. Bullock, 798 F.3d 736, 747 (9th Cir. 2015); Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc).
5. See 9th Cir. Gen. Order § 5.2.b.


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Helping you navigate a clear path through complex litigation.
A federal district court in the Eastern District of Louisiana recently held that it continued to have federal jurisdiction under the federal officer removal statute, even after the plaintiffs amended their petition to delete claims that gave rise to federal subject matter jurisdiction. The court reasoned that the original removal satisfied the proper requirements to invoke federal subject matter jurisdiction and exercised its discretion to retain the case.
This case, Pitre v. Huntington Ingalls, et al,[i] arose out of lung cancer allegedly caused by asbestos exposure while the decedent was employed at Avondale Shipyard in Avondale, Louisiana. The initial petition named numerous defendants and included, among other causes of action, failure to warn and other negligence claims against Avondale, as well as strict products liability and failure to warn claims against Foster Wheeler. The plaintiffs filed a first amended petition adding an additional defendant, Occidental Chemical, and asserting strict liability claims against the new defendant and against Avondale.
In discovery, a former coworker of the decedent testified that the decedent worked on U.S. navy ships built by Avondale, Destroyer Escorts. Within 30 days of this testimony, defendants Avondale and Lamorak removed the case to federal court and asserted that they were entitled to removal under the federal officer removal statute, 28 U.S.C. 1442(a)(1), as the plaintiffs’ claims were related to acts performed under color of federal office. After a federal magistrate judge granted the plaintiff’s motion for leave to file an amended complaint deleting their strict liability claims against Avondale, the defendants appealed the ruling to the district court. In their response to the appeal, plaintiffs moved to remand the action to state court.
The defendants argued that the effort to amend the original petition by deleting strict liability claims was a bad faith attempt to defeat federal jurisdiction. The district court denied defendants’ appeal and concluded that there was no error in granting the plaintiffs leave to amend, as courts are freely permitted to give leave to amend when justice so requires. However, that still left open the issue of the plaintiffs’ motion to remand.
In 2015, the Florida Supreme Court issued a decision in Aubin v. Union Carbide, which mandated that juries be instructed on the “consumer expectations test.” On November 28, 2017, seven years after initially filing her lawsuit, a plaintiff in Miami-Dade County won a $6.9 million asbestos verdict in a retrial based on the Aubin decision, in Font v. Union Carbide, Case No. 2010-041578-CA-01, This was the plaintiff’s second “bite at the apple,” as the first trial had resulted in a defense verdict for Union Carbide.
In the case underlying the Font appeal, Aubin, the Florida Supreme Court rejected sole reliance on the Third Restatement of Torts’ “risk utility test,” under which a plaintiff must demonstrate that “the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.” Aubin v. Union Carbide Corp., 177 So.3d 489, 505 (Fla. 2015). Instead, the Florida Supreme Court required courts to use the Second Restatement of Torts’ consumer expectations test, which asks whether a product is unreasonably dangerous in design because it failed to perform as safely as an ordinary consumer would expect when used as intended or in a reasonably foreseeable manner. Id. at 503. As described by the Florida Supreme Court in Aubin, “[t]he critical difference regarding design defects between the Second Restatement and the Third Restatement is that the Third Restatement not only replaces the consumer expectations test with the risk utility test but also requires the plaintiff to demonstrate the existence of a ‘reasonable alternative design.’ Id. at 505.
In rejecting sole reliance on the Third Restatement’s risk utility test, the Florida Supreme Court in Aubin explained that the original reason for imposing strict liability for defective and unreasonably dangerous products was to relieve injured consumers from the difficulties of proving negligence by the product manufacturer. Id. at 506-507. However, the Third Restatement eliminates consideration of consumer expectations, and, in fact, “imposes a higher burden on consumers to prove design defect than exists in negligence cases” by adding the additional requirement that an injured consumer “prove that there was a ‘reasonable alternative design’ available to the product’s manufacturer.” Id. at 506.
In a unanimous decision, a three-judge panel of the Massachusetts Appeals Court affirmed summary judgment against the estate of former Detroit Tigers’ pitcher, Mark Fidrych, in Pantazis v. Mack Trucks, Inc., Mass. App. Ct., No. 16-P-1497 (Nov. 27, 2017). On appeal, the Court rejected the Estate’s argument that a component part manufacturer had a duty to warn end-users of foreseeable hazards and risks associated with a non-defective component part installed into a completed end product.
In April of 2009, approximately 30 years after throwing his last pitch in Major League Baseball, Fidrych’s lifeless body was found under a dump truck at his farm in Massachusetts. A witness had observed Fidrych working under the truck, and a medical examiner later determined the cause of death to be accidental asphyxiation.
Mack Trucks, Inc. (“Mack”) had manufactured an incomplete vehicle, consisting only of a chassis, cab, and engine. Fidrych purchased that incomplete vehicle and later converted it into a dump truck by installing a piece of equipment manufactured by a co-defendant. That second piece drew power from the vehicle’s power system to raise and lower the truck bed.
Ann Pantazis, executrix of Firdych’s estate, filed a wrongful death lawsuit against the two entities, among others, alleging that both entities failed to adequately warn end-users about foreseeable risks posed by certain components. She argued that both defendants knew of the dangers posed by unguarded drive shifts, but failed to provide adequate warnings to end users.
For the first time since 1989, Connecticut’s Supreme Court addressed the plaintiff’s burden of proof in the asbestos context, in Wayne Bagley v. Adel Wiggins Group et al, SC 19835 (11/7/17). In a win for defendants facing such claims, the court found that plaintiffs bringing claims pursuant to the Connecticut Product Liability Act (under both strict liability and negligence theories) require expert testimony to prove exposure at levels sufficient to cause their asbestos-related disease, and not merely general testimony that an asbestos-containing product generated an indefinite amount of dust in the plaintiff’s vicinity.
The decedent, Wayne Bagley (“Bagley”) worked at Sikorsky Aircraft Corporation (“Sikorsky”), and alleged exposure to an adhesive product used to bind interior components of helicopter blades. The material, an epoxy, came in the form of a sheet with strippable release paper, it contained 8.6 percent asbestos, and was manufactured by Wyeth Holdings’ predecessor. Employees removed any excess epoxy with chisels or by sanding. The Bagley estate called a former co-worker to testify that Bagley’s work area overlooked the blade shop, that Bagley’s daily responsibilities required him to enter the sanding room frequently, and that the sanding process created visible dust to which Bagley and he would have been exposed to.
At trial, the plaintiff presented causation expert testimony from Dr. Arnold Brody and Dr. Jerrold Abraham. Dr. Brody testified in detail regarding the process by which asbestos causes mesothelioma. However, he acknowledged on cross-examination that his testimony was based upon the assumption that a person has already been exposed to respirable asbestos fibers.
Dr. Abraham, a pulmonary pathologist testified that a proximate cause of the decedent’s mesothelioma was the exposure to asbestos fibers from the epoxy while the decedent passed through the sanding room of the blade shop. While discussing causation, Abraham was given a hypothetical scenario that reflected Bagley’s alleged exposure during his ten-month tenure as the manufacturing engineer. In response, Abraham testified that the scenario was a clear description of an exposure to asbestos fibers emitted from working with epoxy, and that the mere presence of dust indicated inadequate control of the product. On cross-examination, Abraham acknowledged that he never inspected the epoxy, that he did not speak with anyone at Sikorsky about the ventilation in the sanding room, and that he did not know of any studies concerning fiber release of the product when manipulated.
Brian D. Gross is a partner at MG+M who has extensive experience in a broad spectrum of litigation. He is also a member of several corporate defendants’ national trial teams.
Jennifer A. Whelan is a partner in MG+M’s Boston office, her practice focuses on defense of asbestos, mass tort, products liability, and general liability matters. Jennifer serves as national coordinating counsel in asbestos litigation matters.
Copyright © 2019, MG+M. All Rights Reserved.

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The USPTO submitted its Virtual Marking Report (September 16) and Satellite Office Report (September 29) to Congress.
As stated in the USPTO press release: "In the Virtual Marking Report, the agency addressed the effectiveness of virtually marking an article with the word "patent" or abbreviation "pat." followed by a website address where the article is associated with the relevant protective patents as an alternative to physically marking the article with the patent information. The Report also addressed whether virtual marking has limited or improved the public's access to patent information along with potential legal issues that arise from virtual marking. Lastly, the agency considered possible deficiencies in constructive notice arising from virtual marking as compared with physical marking. Information contained in the Virtual Marking Report was drawn from public input provided in response to a Federal Register Notice.
In the Satellite Office Report, the agency explained the criteria used to select the location of its four satellite offices as well as the process and timing to build out those offices. The Report also delved into the achievements of the satellite offices, including their impact on the patent application backlog and pendency, examiner recruitment and retention, and stakeholder outreach.
The PTO has one final AIA report to complete dealing with the agency's overall implementation of the AIA. That report is not due until September 2015."
Tonight, check out Apple is Being Sued for Infringing 13 SanDisk Patents. This article caught my attention because the title makes it appear SanDisk is suing a customer, but instead it is a story about non-practicing entities in Europe that purchased some of SanDisk's flash memory patents and are busy trying to monetize the patents.
As stated in the article: "Ireland's Longitude Licensing Ltd and Luxembourg's Longitude Flash Memory Systems S.a.r.l. have filed a joint patent infringement lawsuit against Apple. The lawsuit involves a whopping 13 counts of infringement covering most iDevices and iPod models. The plaintiffs are using former SanDisk patents that they now own against Apple."
If Apple products use SanDisk flash memory, it makes me wonder why patent exhaustion, implied licensing and/or laches won't become an issue.
Tonight, check out Adobe Acrobat Tips for Patent and Trademark Practitioners which has a long list of links to a number of Adobe Acrobat features that may be useful to your practice.
Tonight, check out Inter Partes Review -- Parties Favor Settlement Over Board Decisions. Consistent with the article the top block of the first diagram should be: 167 Patents Petitions Terminated.
The Patent Trial and Appeal Board (PTAB) does not usually deny a petition for inter partes review, but can under 35 U.S.C. § 325(d), which permits denial when a petition raises the same or substantially the same prior art or arguments previously presented to the USPTO.
As stated in 35 U.S.C. § 325(d) Multiple Proceedings.— Notwithstanding sections 135 (a), 251, and 252, and chapter 30 sections 135 (a), 251, and 252, and chapter 30, during the pendency of any post-grant review under this chapter, if another proceeding or matter involving the patent is before the Office, the Director may determine the manner in which the post-grant review or other proceeding or matter may proceed, including providing for the stay, transfer, consolidation, or termination of any such matter or proceeding. In determining whether to institute or order a proceeding under this chapter, chapter 30, or chapter 31, the Director may take into account whether, and reject the petition or request because, the same or substantially the same prior art or arguments previously were presented to the Office (emphasis added).
Today, the Patent Trial and Appeal Board (PTAB) designated the following decisions as "informative" as to denial of institution of inter partes review under 35 USC § 325(d).
The USPTO has started the AIA First Inventor to File Roadshow Fall 2014.
According Alexandra Roberts, Executive Director of the Franklin Pierce IP Center, "the presentation provided attendees with an invaluable opportunity to improve their understanding of recent changes in patent law, gain insight into USPTO procedure, get exposure to practical concerns in patent prosecution, and cement their new knowledge by applying it in a hands-on way."
See AIA Roadshow for more information on the upcoming live and webcast roadshow dates, which are free on a first-come first-serve basis.
See the USPTO first inventor to file page for the roadshow presentations after October 9, 2014.
Tonight, I suggest reading Professor Duffy In Favor of "Good Property-Defining Institutions" and Opposed to Bad Reforms. Professor Duffy is once again right and stands out from the crowd.
He starts by noting the America Medical Association opposition to patented medicines in the 19th century. Patented medicines weren't only bad, they were unethical! An AMA member, congressman, and head of a congressional committee "recommended as an important measure of reform legislation banning all patents on medicines." That sounds like what I am hearing about software inventions.
But as Professor Duffy notes we should be skeptical of sweeping reform: "Worrying about matters such as patent law’s obviousness doctrine has none of the flamboyance of a call to eliminate all software patents, but the targets of reform can be the same. Eli Dourado rightly criticizes Amazon’s 1-click patent as an example of a “low-quality software patent.” So have I—repeatedly. But the problem with the 1-click patent is not that it’s on software but that it’s “low-quality”—it’s trivial; it’s obvious. The right solution to such “low-quality software patents” is not to get rid of all software patents (low-quality and high-quality), but to do a better job of getting rid of all low-quality patents (software or not). That’s not a flashy “let’s-kill-all-the-software-patents” approach. It’s boring; it’s incremental. But if the goal really is to get “good property-defining institutions” rather than simply to abolish property rights across fields of innovation, such incremental, boring improvements are what’s needed."
Tonight, I suggest reading Richard Finger of Forbes New IP Company Marathon Patent Group Promises Diversification Amid Risky Environment.
"Although Marathon Patent Group certainly carries its share of risks, like any small company, it is undeniably differentiating itself in the patent sector. Most IP enforcement and licensing groups are focused on big-dollar patents, recruiting a law firm on contingency, and then awaiting their luck in the courtroom or negotiation table. There have been notable success stories, such as Vringo (VRNG) and VirnetX Holdings (VHC) with their well-publicized lawsuits against Google and Microsoft. Yet these companies (and there are many others like them) have no predictable cash flow. They receive a jolt of cash at random times, but it is very difficult, if not impossible, to place an ongoing enterprise value onto these companies. Mr. Croxall, in contrast, by purchasing patent portfolios with proven licensing history, will create some predictability for his company. Likewise, if he can acquire enough performing portfolios, then there will be sufficient diversification such that no single court case or licensing event will hurt his earnings needle significantly. Moreover, the consulting division of Marathon Patent Group will also be producing a stream of revenue- entirely independent from litigation. As a consultancy, it simply charges advisory fees. Thus, although Marathon Patent Group operates in an IP sector that has traditionally defied valuation metrics, with predictable earnings, it could prove to be a more stable company."
I have no relationship with Marathon Patent Group nor with the author of the article, but liked the article's details regarding a patent monetizing model that may become more popular in the future.
WSJ reports Judiciary to Restore Online Access to Case Archives that Senator Leahy sent a letter that apparently thwarted a bad idea. See US Courts Trash a Decade's Worth of Online Documents, Shrug it Off!
Tonight, I suggest reading IP Watchdog's Big Banks Get Software Patents Despite Alice, which indicates with the right claims Alice may not prove a substantial barrier to patenting of financial software. See US Patent No. 8,805,740 to Wells Fargo for an example of claims that the USPTO issued after Alice.
Intellectual Asset Management - Biggest Impact from Passage of America Invents Act?
Tonight, I suggest reading Intellectual Asset Management's The AIA is 3 today and there’s only one winner for what has been its biggest impact.
As stated by IAM, "Three years ago today President Obama signed the Leahy-Smith America Invents Act into law, heralding the first major shake-up of US patent law in over 50 years. To mark the occasion we thought we would ask a range of people in the market what the AIA's biggest impact has been. The result was unanimous - the new post-grant proceedings at the USPTO’s Patent Trial and Appeal Board (PTAB) has been the game changer."
The USPTO is extending the time for public comments on procedures of the America Invents Act (AIA) trials before the Patent Trial and Appeal Board (PTAB).
Any comments must be emailed to trialsrfc2014@uspto.gov by October 16, 2014.
As stated by the USPTO, it "published a request for comments in the Federal Register on June 27, 2014, seeking public comment on all aspects of the new administrative trial proceedings, including the administrative trial proceeding rules and trial practice guide. See Request for Comments on Trial Proceedings Under the America Invents Act Before the Patent Trial and Appeal Board, 79 Fed Reg. 36474-77 (June 27, 2014). The USPTO initially indicated that written comments must be received on or before September 16, 2014. In view of stakeholder requests for additional time to submit comments on the new administrative trial proceedings, the USPTO is now extending the period for public comment until October 16, 2014."
Tonight, I just finished reading Hasting Law Professor Robin Feldman's article Coming of Age for the Federal Circuit, which discusses the patent law tug-of-war that is going on between the US Supreme Court and the Federal Circuit.
"This has been a watershed year for the Federal Circuit, with the Supreme Court granting cert. in more patent cases than any term since the Circuit’s creation in 1982. Moreover, in case after case this year, the Justices soundly and unanimously rejected the Federal Circuit’s logic.
Some attribute the tension between the Federal Circuit and the Supreme Court to a clash between rules and standards, but that view misses the heart of what is occurring. Rather, a strong message echoes through the six Supreme Court decisions. It is a message about restraint, about carefully constructed logic, and about coming into the fold of judicial decision-making. This is a coming of age for the Federal Circuit — or at least the Supreme Court seems determined to coax, cajole and, when necessary, club the Federal Circuit into coming of age.
This article examines the messages evident in recent Supreme Court decisions and evaluates whether the Court appears to be gaining ground. Although some indications are positive, others suggest that the Federal Circuit may not be entirely ready to relinquish its role as the judiciary’s enfant terrible."
The article is thought provoking, but if the Federal Circuit is the "terrible child," the Supreme Court may just be that "parent" who issues vague orders then "punishes" the child for "disobedience" at least on the application of the abstract idea. The Supreme Court on patent eligibility law (e.g., Alice v. CLS Bank) is unclear and that is why many are struggling with it. It is easy to blame the Federal Circuit for being recalcitrant, but the early Supreme Court patent eligibility cases have plenty of flaws. For example, Benson seems to not understand the claims recite hardware such as registers and mask bits and that the patent owner stipulated that the hex to binary conversion algorithm was executed in special hardware. Justice Douglas, who never did find that patent he liked, ignores the hardware and asserts the claim totally preempts the algorithm. In the end, although we are talking about capable judiciary, it may be time to note Benson said software patent protection (or not) is a policy question best decided by Congress.
Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the USPTO Michelle K. Lee wrote an article USPTO’s Plain Language Toolkit Empowers Public on Patent Litigation "to empower and inform 'Main Street' retailers and consumers that may have been threatened with a patent lawsuit or received a demand letter. It was developed to provide plain language answers to key questions.
• what to do after receiving a demand letter.
To the extent that legal terms are included, the toolkit has a useful glossary to ensure that consumers and 'Main Street' retailers are on the same page. By presenting the information in as straightforward a manner as possible, the USPTO sees this toolkit as a first-stop for people learning about their rights and trying to understand the various courses of action available under their circumstances."
For more details see USPTO's Patent Litigation Toolkit and join the Webinar Thursday September 18 at 12:00pm ET.
IP Navigator - Did the Supreme Court Intend to Kill Software Patents?
Tonight, check out IP Navigator's Did the Supreme Court Intend to Kill Software Patents? It may sound a crazy question until you notice examiners, PTAB, and lower federal courts have consistently interpreted Alice v. CLS Bank to prevent software inventions from being held patent eligible.
Tonight, check out Scott McKeown's article Why Motions to Amend at the PTAB Are of Such Great Interest noting the Patent Trial Appeal Board (PTAB) practice to deny amendment to the claims in nearly all cases and suggesting solutions.
Mr. McKeown notes "there have been 66 motions to amend filed at the PTAB to date, roughly 50% of the final decisions to date. (5 CBM, 61 IPRs). The current success rate (where patent owner tried to substitute new claims as opposed to simple claim cancellation) is 4.1%. In other words, 95.9% such motions were denied. Clearly such statistics create a public relations issue for the PTAB as being anti-patent."
Tonight, let's return to Gene Quinn's final segment of his interview with Mark Lemley. One exchange suggests the motive for a highly restrictive 35 USC 101 eligibility standard. Tech wanted a tool to cheaply kill patent infringement actions. No discovery required for this coarse filter!
QUINN: "But by the same token I would be so much more comfortable handling these cases under 102, 103, and 112 because like Judge Newman says, if you handle technologies under 101 you’re potentially forestalling an entire avenue of innovation and preventing an entire industry from developing."
LEMLEY: "I think that’s right. The problem is 101 is an attractive tool to people who are confronting those nuisance suits because it’s early and it’s easy, right? And it doesn’t require going through a lot of the facts, discovery, and work that can cost a lot of money if there were better mechanisms to try to get at those weak suits earlier and more cheaply you know then people could use those mechanisms. But the problem is that I’ve got somebody who shows up and says it’s going to cost you $3 million to get the summary judgment on your obviousness claim and probably courts aren’t going to grant summary judgment and they’ll send it to trial anyway. So why don’t you pay me a million dollars to go away. Everybody’s decision is to pay million dollars."
Janice M. Mueller - Patent Law, 4th Ed.
Tonight, if you want a nice introduction to US patent law, I would check out Janice Mueller's Patent Law, Fourth Edition (2012). It is well written, understandable, and concisely explains many aspects of US patent law, including the America Invents Act of 2011, without being boring.
Tonight, check out The Ramifications of Alice: A Conversation with Mark Lemley.
"Well, I think Alice is a real sea change on the patentable subject matter issue. I’ve heard a lot of folks talk about how Alice doesn’t really use the word “software” so it doesn’t really change anything, but I honestly think that’s wishful thinking. Here’s what it seems to me Alice does that’s significant. The first thing it does is it makes it clear that Mayo wasn’t a one-off thing, but rather is the fundamental test going forward for all kinds of patentable subject matter issues. I think a lot of patent lawyers had talked ourselves into thinking that the Court didn’t really mean it in Mayo when it talked about having to add a significant inventive component beyond the abstract idea or the natural process. But the court in Alice makes it clear that if your patent covers an implementation of an idea we want proof of an inventive concept beyond that idea before we’ll grant you a patent. You’ve got to add new steps or new hardware, not just conventional hardware or conventional steps. Not just computer technology that is generic or functionally described. And if you can’t do that not only your method claims but also your article of manufacture claims are going to be invalid."
Where's the support for grafting "an inventive concept" requirement into 35 USC 101." Sounds like "inventive concept" is a synonym for nonobviousness. If not, maybe someone can explain how they differ. If it is the same, why are we performing the obviousness analysis without reference to 35 USC 103, which requires the decision-maker compare the claim as a whole to the prior art?
So let me get this straight, 35 USC 101 allows the decision-maker to identify a portion of the claim that is an abstract idea (and ignore the other part) then decide if the ignored part contains "significantly more" or "an inventive concept?" What's a patent attorney to do? Professor Lemley suggests writing means-plus-function claims .... How about we agree "inventive concept" should be assessed by consideration of the entire claim as required by 35 USC 103?
Tonight, check out Vinod Khosla's The Case For Intelligent Failure To Invent The Future that tells why Silicon Valley has succeeded.
As Mr. Khosla states it, "I have experienced the power of doers, the chaotic and naïve world of optimistic entrepreneurs who just try things, admit mistakes, fail, learn, iterate, try again and find solutions – often out of necessity. Accepting, even encouraging, the right kind of failure is the best way to discover the solution to our problems and close the resource gap."
George Bernard Shaw said, "The reasonable man adapts himself to the world: the unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man." People like Steve Jobs and Steve Wozniak who held onto the unreasonable belief they could start a company in a garage that would bring computing to the world.
Associate Professor Allison Orr Larsen's The Trouble with Amicus Facts does a great job describing the problem with amicus briefs at the US Supreme Court (e.g., over 40 amicus briefs in Alice v. CLS Bank) and Federal Circuit. These friend of the court briefs are not just friendly input, but financial orchestrated efforts to influence a court's decision. As Judge Posner puts it, amicus briefs are advocacy docs.
"The number of amicus curiae briefs filed at the Supreme Court is at an all-time high. Most observers, and even some of the Justices, believe that the best of these briefs are filed to supplement the Court’s understanding of facts. Supreme Court decisions quite often turn on generalized facts about the way the world works (Do violent video games harm children? Is a partial birth abortion ever medically necessary?) and to answer these questions the Justices are hungry for more information than the parties and the record can provide. The consensus is that amicus briefs helpfully add factual expertise to the Court’s decision-making. The goal of this article is to chip away at that conventional wisdom. The trouble with amicus facts, I argue, is that today anyone can claim to be a factual expert. With the Internet, factual information is easily found and cheaply manufactured. Moreover, the amicus curiae has evolved significantly from its origin as an impartial “friend of the court.” Facts submitted by amici are now funneled through the screen of advocacy. The result is that the Court is inundated with eleventh-hour, untested, advocacy motivated claims of factual expertise. And the Justices are listening. This article looks at the instances in recent years when a Supreme Court Justice cites an amicus for a statement of fact. It describes the way the brief, rather than the underlying factual source, is cited as authority and the failure of the parties to act as an adequate check. I challenge this process as potentially infecting the Supreme Court’s decisions with unreliable evidence, and I make suggestions for ways to reform it. It is time to rethink the expertise-providing role of the Supreme Court amicus and to refashion this old tool for the new purpose to which it is currently being used."