What is that sad, semi-clever thing bartenders have been known to say at closing time? "You don’t have to go home, but you can’t stay here." Our days of being around at closing time are in the rear view mirror, growing tinier by the second. We are unlikely ever again to reenact that greatest of all Sinatra songs, "One for My Baby" ("It’s quarter to three/there’s no one in the place except you and me"). Odds are that at 2 am on any Saturday night, we will be deep asleep, enduring another of those dreams where we showed up late for our Contracts exam, naked and afraid.
This will be the third, and almost certainly last, post we do on the Johnson v. Draeger Safety Diagnostics, Inc. litigation, where a purported class challenged the accuracy of the Alcotest machine used in New Jersey to measure blood alcohol content for driving-while-intoxicated (DWI) arrests and prosecutions. In our first post, Three Dumb Legal Theories Walk Into a Bar, we reported how a New Jersey federal court rejected a claim brought by a pair of plaintiffs whose claim was basically that a defective Alcotest machine forced them to plead guilty to DWI. We thought the theory was wobbly, but let’s remind you of the background. The plaintiffs had been arrested for suspected drunk driving. Both submitted to breath tests administered using the Alcotest device, which reported, for each, a blood alcohol concentration (BAC) above .08%. Alcotest readings are admissible in DWI prosecutions as evidence of a per se violation of the DWI statute. The plaintiffs each pleaded guilty to DWI. They did not challenge the Alcotest readings at that time, and the reason for that (we surmise), requires even more background. During the roll-out of the Alcotest, twenty individuals charged with DWI challenged the admissibility of their Alcotest results, and their cases were consolidated for consideration of the evidentiary challenge. The case was called Chun. During the Chun case, a Vice-President of the company that manufactured the Alcotest testified that he was "100 percent convinced" that the device was capable of producing accurate readings; that he "strongly believed" that the device was scientifically reliable; and that no maintenance was needed other than verifying proper operation at the time when the unit is calibrated. In 2008, the Supreme Court of New Jersey concluded in the Chun case that the Alcotest was scientifically reliable and that its results would be admissible and could be used to prove a per se violation of the DWI statute.
The plaintiffs in the Johnson case brought claims alleging negligence and strict liability because the Alcotest did not actually work correctly and could not be properly calibrated, and alleging common law fraud because the company vice-president had lied in the Chun case. The court poured out the case because the claims were subsumed by the New Jersey Product Liability Act (PLA), no physical injury was plausibly alleged, and any claim that the defendant defrauded the FDA would be preempted by Buckman. Closing time, right? Well, not exactly. Just like some bars are notorious for setting the clock 15 minutes ahead of time so as to steer the rummies toward a graceful exit, the court gave the plaintiffs leave to amend the complaint.
That led to our second post, Breaking News – A TwoFer. Now there was a third amended complaint, and it cleaned things up a bit by limiting the claims to design defect and a fraud that ostensibly had nothing to do with the FDA. But it also looked pretty clear that the action was a collateral attack on prior litigation, and the court declined subject matter jurisdiction under the Rooker-Feldman doctrine. That doctrine comes into play when: (1) the federal plaintiff lost in state court; (2) the plaintiff complains of some injury from the state court judgment; (3) the state court judgment antedated the filing of the federal case; and (4) the plaintiff is inviting the federal court to reject the state court judgment.
The plaintiffs appealed that decision to the Third Circuit, and that’s where we are today: Johnson v. Draeger Safety Diagnostics, Inc., 2014 U.S. App. LEXIS 23113 (3d Cir. December 9, 2014). We think this will be the, and our, last word on this case because we cannot imagine the Supreme Court granting certiorari. If it does, we will eat a mezcal worm. The reasoning is utterly straightforward, even if the plaintiffs sort of prevailed on one of their arguments, only to lose on simpler grounds. The plaintiffs argued that the Rooker-Feldman doctrine did not preclude their claims because they were not parties to the Chun case and were not seeking to overturn it or their DWI convictions.
The Third Circuit had no problem holding that the Rooker-Feldman doctrine absolutely precluded the design defect claim. All four elements were satisfied. The source of the injury targeted by the design defect claim was the state courts’ evidentiary rulings in their own DWI cases, not the Chun case. Those "injuries can be traced directly to the state court’s decision in each plaintiff’s case that his Alcotest reading was admissible, and to the subsequent DWI conviction." Id. at *9.
But the court held that the fraud claim was different. The plaintiffs alleged that the company made false statements that the New Jersey Supreme Court relied upon in deciding Chun, and that the judge presiding over the plaintiffs’ DWI case relied on Chun in admitting the Alcotest BAC results. According to the court, that "is akin to contending that plaintiffs were ‘forced to litigate in a rigged system.’" Id. at *11. Hmmmm. We wouldn’t have to imagine too hard to come up with a case where our clients might want to make a similar claim. In any event, the source of the injury complained of via the plaintiffs’ fraud claim, then, is not their prior state court judgments. It is a different case: Chun. Accordingly, while Rooker-Feldman barred the exercise of subject matter jurisdiction over the plaintiffs’ product liability claim, it did not bar their fraud claim.
That seems to be an unsettling result. Could the plaintiffs really relitigate the company testimony on the efficacy of the Alcotest? Not to worry, because the Third Circuit ruled that the plaintiffs’ fraud claim fails for another reason: they did not plead a plausible claim. The cited statements by the company vice-president represented his opinion regarding the scientific reliability of the Alcotest and whether the device needed ongoing maintenance. Such opinions cannot be fraudulent. But even if those statements could be construed as fact rather than opinion, the plaintiffs did not adequately plead that the statements were false, or that the company vice-president knew or believed that they were false at the time he said them. Being wrong is not the same thing as being fraudulent.
Thank goodness for that.
Here’s a tipsy tip of the cyber hat to Terry Henry of Blank Rome, who brought this result to our attention.