November 12, 2014

New York Law Journal / Written by: Harvey M. Stone, Richard H. Dolan

In the U.S. District Court for the Eastern District of New York. Judge Frederic Block interpreted complex and somewhat-elusive areas of state law relating to depraved-indifference murder before denying a habeas petition while granting a certificate of appealability. Magistrate Judge Viktor V. Pohorelsky granted discovery beyond the administrative record in favor of plaintiffs challenging the Food and Drug Administration's (FDA) refusal to give over-the-counter approval for the morning-after pill. Judge Denis R. Hurley found several fatal deficiencies in a Racketeer Influenced and Corrupt Organizations Act (RICO) complaint. And Judge David G. Trager rejected an attorney disqualification motion which seemed more tactical than substantive.

Depraved-Indifference Murder

In Guzman v. Greene, 05 CV 1599 (EDNY, March 15, 2006), Judge Block denied a habeas petition but issued a certificate of appealability on petitioner's claim that the evidence to convict him of depraved-indifference murder was insufficient. After petitioner's conviction and during direct appeal, several decisions by the New York Court of Appeals so restricted the definition of depraved-indifference murder as to exclude the kind of killing involved in this case. Judge Block declined to apply those changes retroactively on collateral review.

Following a 2000 jury trial in Kings County, petitioner was convicted of depraved-indifference murder and acquitted of intentional murder. Having failed to overturn that conviction on appeal, he filed this habeas petition arguing, among other things, that the evidence proved only an intentional murder (a nonhazardous assertion, given the acquittal on that charge) and that the evidence to sustain the conviction was insufficient.

The trial evidence showed that, during an altercation at a park, petitioner fatally stabbed the victim, once in the back and twice in the chest, puncturing his heart and left lung.

Under New York law, a defendant may be found guilty of depraved-indifference murder where, '[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.' N.Y. Penal Law § 125.25(2).

Extensively analyzing the evolving New York case law (slip op. 14-27), Judge Block concluded that petitioner's 'conviction would have to be reversed based on the applicable law at the time the Appellate Division affirmed the conviction, but not at the time of conviction.' As shown by a series of recent decisions, the New York Court of Appeals has now clearly held that, except for a few narrow exceptions, a one-on-one shooting or knifing does not qualify as depraved-indifference murder. By contrast, when this case was tried, a 'focused inquiry' was 'the degree of risk to the specific victim, and not necessarily whether others were endangered[.]'

Judge Block then turned to whether the New York courts would retroactively apply the changes in the law. Slip op. 27-32. Preliminarily, Judge Block noted, the recent cases mark a 'significant change' in the law, rather than a mere clarification. This required Judge Block to apply New York's retroactivity rules. In finding that the New York courts would apply the new rule on depraved-indifference murder only prospectively, Judge Block pointed to a number of factors, including the rule's 'purpose'--which 'was not to let murderers go free because they were 'convicted under the wrong section of the statute.'' Slip op. 31.

Judge Block also held that the failure to apply the new rule here would not violate 'clearly established Supreme Court law' (the burden faced by petitioner in this habeas proceeding). As Judge Block observed, 'there is no Supreme Court case holding that a state court cannot decide whether a new state law, not impacting the Constitution, should be applied retroactively to the date of conviction.' Slip op. 34. Thus, the rejection of petitioner's sufficiency claim on direct appeal did not contradict clear Supreme Court precedent.

Judge Block added a final comment: 'Unfortunately, unlike the [U.S. Court of Appeals for the] Second Circuit, which has the power to certify issues of New York law to the New York Court of Appeals..., district courts in this circuit have no choice but to be in the business of deciding difficult questions of state law.' Slip op. 40.

Discovery: Administrative Termination

In Tummino v. Andrew C. Von Eschenbah, in his official capacity as acting commissioner of the Food and Drug Administration, 05 CV 366 (EDNY, Feb. 24, 2006), Magistrate Judge Pohorelsky considered whether, and to what extent, plaintiffs challenging the FDA's failure to grant over-the-counter approval for the Plan B birth-control pill--commonly known as the 'morning-after pill'--are entitled to discovery going beyond the administrative record.

Chief Judge Edward R. Korman had previously denied the FDA's motion for judgment on the pleadings with respect to plaintiffs' 'unreasonable delay' claim, reserved decision as to other claims, and lifted a stay on discovery. The discovery issues decided by Magistrate Judge Pohorelsky arose from the FDA's motion for a protective order.

While discovery on review of an agency decision generally is limited to the administrative record, an exception exists where there has been a 'strong showing in support of a claim of bad faith or improper behavior on the part of agency decisionmakers....' Slip. op. 28, quoting National Audubon Soc'y v. Hoffman, 132 F3d 7, 14 (2d Cir. 1997). Magistrate Judge Pohorelsky found that such a showing had been made. Specifically, the FDA's joint advisory committee had overwhelmingly supported approving 'Plan B' for over-the-counter use. Nonetheless, agency approval had been withheld when 'senior management' expressed concerns about extrapolating to younger adolescents, from data drawn from older adolescents, concerning ability to use the drug without supervision, and suggested that the drug remain a prescription item for minors, with over-the-counter approval limited to adults. Ultimately, over-the-counter approval was not permitted 'even to non-adolescent females.' Slip op. 16-17.

Magistrate Judge Pohorelsky found a 'substantial question' as to whether senior management at the FDA had voiced concerns about extrapolating from the available data as a pretext not to approve Plan B when, in fact, that goal was predetermined and driven by moral opinions concerning adolescent sexual behavior that are 'beyond the mandate of the agency.' Slip op. 32-33. For example, as suggested by the record, FDA Deputy Commissioner for Operations Dr. Janet Woodcock had stated concern that over-the-counter approval 'could potentially lead 'to extreme promiscuous behaviors such as the medication taking on an 'urban legend' status that would lead adolescents to form sex-based cults centered around the use of Plan B.'' Slip op. 10. The court also pointed to e-mails exchanged between senior FDA officials, just days before a May 6, 2004 non-approval letter, seeking 'behavioral science information as to why one cannot extrapolate decision making on safety issues from the older adolescent to the younger one' (emphasis added by court). Slip op. 14-16.

These factors, together with the FDA's five-year delay in responding to plaintiffs' petition for over-the-counter approval, plus other procedural irregularities, justified discovery beyond the administrative record with respect to 'the concerns that influenced the decisions made by senior management and the sources of those concerns.' Slip op. 36.

Magistrate Judge Pohorelsky granted the FDA's motion for a protective order only to the extent of denying as burdensome discovery concerning agency employees not necessarily involved in reviewing Plan B. Slip. op. 35-38.

RICO Pleading

In Crab House of Douglaston, Inc. v. Newsday, Inc., 04 CV 0558 (EDNY, March 3, 2006), Judge Hurley granted a motion to dismiss a RICO action alleging that defendants injured plaintiffs, who were advertisers in Newsday and Hoy, by manipulating circulation.

The RICO claim was deficient on several grounds. First, all members of the enterprise did not have a common alleged purpose, because nonparty member Audit Bureau of Circulation (ABC) did not share that unlawful purpose. Indeed, plaintiffs described ABC as a victim that was not involved with the operation, management or internal affairs of either Newsday or Hoy. Nor did plaintiffs provide the requisite detail showing that each defendant conducted the enterprise by participating in its operation or management. Instead, the complaint lumped the defendants together through conclusory allegations.

Judge Hurley also found the mail fraud allegations to lack substance, because plaintiffs failed to allege the content of the fraudulent letters or where or to whom they were mailed. Similarly, the complaint did not specify which representations received by plaintiffs were false.

Finally, Judge Hurley dismissed plaintiffs' Lanham Act claims for lack of standing. As consumers of defendants' product of advertising, plaintiffs did not meet the most basic requirement of being direct or indirect competitors of defendants. Slip op. 33-34.

Disqualification of Counsel

In Reilly v. Computer Associates Long-Term Disability Plan, 04 CV 4830 (EDNY, March 30, 2006), Judge Trager denied the motion of co-defendants First Unum Life Insurance Co., UnumProviden Corp. and Unum Life Insurance Co. of America (collectively, Unum) to disqualify plaintiff's counsel.

Peter Heck had been a partner in a law firm representing Unum before joining Binder & Binder in 2004, the firm which has represented plaintiff in this matter since 2003. Mr. Heck left Binder & Binder after five months, when the disqualification motion was filed. Plaintiff claimed that Binder & Binder, a small firm, was tainted by Mr. Heck's brief presence.

As Judge Trager noted, even though Binder & Binder was a small firm, Mr. Heck had been based in a separate office from the lawyers working on the case and there were no case files in the office where he worked. In addition, the firm restricted his computer access and told lawyers working on the case never to discuss Unum matters with Mr. Heck. In short, plaintiff made no meaningful showing that the trial process would be tainted, and thus did not meet the stringent Second Circuit requirements for disqualification.

In addition, plaintiff had a long history of representation by the firm, and disqualification would work a substantial hardship on her.

Finally, Judge Trager stated: 'the motion here smacks of a tactical strategy rather than a bona fide concern with a client's confidences.' Slip op. 19.

Harvey M. Stone and Richard H. Dolan are partners at Schlam Stone & Dolan. Bennette D. Kramer, a partner of the firm, assisted in the preparation of the article.

[This article is reprinted with permission from the April 14, 2006, issue of the New York Law Journal. Copyright © 2007 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]