CCL Files Reply Brief on Iqbal/Twombly Issue in Ninth Circuit

July 23rd, 2018

     In a case where the federal trial judge ruled that the plaintiff's claim for a defective medical device survived a preemption challenge but still dismissed the case over a failure to sufficiently allege causation, CCL filed its reply brief, explaining that the complaint satisfied even the most rigorous causation pleading requirements despite being at a disadvantage because further details were only available after discovery could take place.

     In Martin v. Medtronic, Inc., the plaintiff suffered through five years of debilitating pain because the pain medicine dispenser implanted into him had constant cycles of over- and under-infusion due to manufacturing defects. When his physician received permission to replace the device with a newer model, the illnesses that afflicted the plaintiff immediately ceased. The problems the plaintiff suffered mirrored those identified in warning letters, recalls, and inspections from the FDA, demonstrating the causal connection needed to state a valid claim. Nonetheless, the District Court insisted on even greater specificity to survive a motion to dismiss. This, the CCL brief on behalf of the plaintiff, was error.

CCL President Participates in Think Tank Board Meeting

July 21st, 2018

     CCL President Robert S. Peck participated in the July 21 meeting of the advisory board to the Civil Justice Research Initiative, a joint project of the law schools at the University of California at Berkeley and at Irvine. Chaired by Berkley Law Dean Erwin Chemerinsky, the Initiative focuses its research work on access to justice issues.

     The July meeting, among other issues, considered further outreach from its April symposium at Berkeley on "What's Happening in Federal Court," an outgrowth of research by University of Connecticut professors Alexandra Lahav and Peter Seigelman, which explored a precipitous decline in plaintiff win rates in federal court. Peck participated in the symposium as both a moderator and a panelist.

     The next CJRI symposium will take place on September 28 and explore legal issues surrounding gun violence.

CCL Responds to Stay Motion

July 18th, 2018

     After a federal district court agreed with CCL's arguments that Airbus had no authority to claim that it was a federal officer and remove a state court lawsuit against it to federal court, Airbus has sought a stay of the order remanding the case to its original state court while it appeals the decision to the Ninth Circuit.    

      In requesting the stay, Airbus claimed that it need only raise a substantial issue on appeal, rather than show it likely to prevail, the explicit standard for such stays. It also claimed that no one would be prejudiced by a brief detour to the Ninth Circuit. In response, CCL argued that the standard to support a stay was far more rigorous than raising a substantial issue and that, on average, the Ninth Circuit takes 22 months from the notice of appeal to final disposition of an appeal, according to official federal court statistics. That type of delay would deny the plaintiffs, mourning the death of their son in a helicopter crash, justice and create problems with evidence and witness accounts for a trial that would end up taking place more than two years from the time of this motion. Moreover, if Airbus was not interested in delaying tactics, it would have filed its notice of appeal immediately, rather than insist, as it did, on waiting the full 30 days it is allowed, which has yet to expire.

CCL Responds to Supplemental Authority in Colorado Cap Challenge

July 17th, 2018

     CCL, along with co-counsel, filed a response to supplemental authority filed by the defendant in a Colorado case that challenges that state's medical malpractice cap, which was argued last October. In Smith v. Surgery Center, a patient went into the medical facility for a steriod injection, but left paralyzed from the waist down and transforming her husband into a round-the-clock caregiver. After a trial, the jury awarded the couple nearly $15 million in damages. While the defendant facility has challenged their liability, they have also invoked the Colorado damage cap, which limits medical malpractice damages to $1 million, no more than $300,000 of which may be for noneconomic compensation.

      In defense of capped damages, the Surgery Center notified the Court of a recent decision by the Wisconsin Supreme Court, which upheld that state's limits on medical malpractice non-economic damages and overturned a 2005 decision of the same court that invalidated a prior similar damage cap. In the response drafted by CCL, Plaintiffs pointed out that their only citations to the prior Wisconsin case was for unassailable factual propositions that were unaffected by the new case. They further pointed out that the dissenter in the 2005 case wrote the new decision, making the same points that did not command a majority of the court in 2005.

      As a result, CCL argued, the new case merely reflects a change in membership on the court and not the development of new reasoning. As Justice Thurgood Marshall once wrote: "It takes little detective work to discern just what has changed since this Court decided [the prior case]; this Court's own personnel." That is an illegitimate basis for overturning a previous decision, because, as Justice Potter Stewart wrote, it "invites the misconception that this institution is little different from the two political branches of the Government."

Federal Court Remands Case to State Court, Rejects Helicopter Manufacturer's Claim to be Federal Officer

July 16th, 2018

      A federal court in Nevada today sent a case growing out of a helicopter crash back to state court after it had been removed by the aircraft's manufacturer, Airbus. Airbus claimed that the Federal Aviation Administration had designated the company as a stand-in for the FAA for certain certifications and supplemental design changes. Under a federal statute that protects federal officers carrying out their duties from unfriendly state courts, Airbus had removed the lawsuit from state court to federal court.

      In briefs written by CCL, the Plaintiffs argued that mere compliance with federal regulations and the authority to "self-certify" does not qualify a private manufacturer as a federal officer for purposes of the removal statute. Philip Morris had unsuccessfully made the same argument in the U.S. Supreme Court in 2007, claiming that when it took over tar and nicotine testing from the Federal Trade Commission and used the same methodology to determine the levels of those chemicals in cigarettes that it qualified for federal officer removal. In 2011, the U.S. Court of Appeals for the Seventh Circuit applied the same reasoning that the Supreme Court did in Watson v. Philip Morris, to hold that Boeing was not a federal officer for removal purposes. 

      In today's decision, Riggs v. Hecker, the U.S. District Court found the Seventh Circuit's decision, Lu Junhong v. Boeing, persuasive and ordered the case returned to state court. 

Peck Participates in Meeting with Judicial Conference Subcommittee

July 10th, 2018

     CCL President participated in a roundtable discussion that was part of the listening tour that a subcommittee of the U.S. Judicial Conference's Advisory Committee on Civil Rules held with members of the American Association for Justice at its Summer Convention in Denver, Colorado July 11.

     The subcommittee is charged with exploring whether the Federal Rules of Civil Procedure should be amended to set rules for the conduct of Multi-District Litigation (MDL). During the discussion, the subcommittee heard about the wide diversity of cases designated as MDLs and the difficulty of developing one-size-fits-all solutions to problems. On the other hand, judges presiding over these consolidated cases have proven adept at adopting procedures customized to the needs of the litigation.

Peck Speaks to AAJ Civil Rights Section

July 9th, 2018

     CCL President Robert S. Peck described landmines that recent U.S. Supreme Court decisions placed in the path of civil rights advocates in remarks made at the meeting of the Civil Rights Section of the American Association for Justice on July 9 in Denver, Colorado. 

     Peck began his talk by describing the impact that Justice Kennedy's retirement was likely to have, with the certainty being that the new nominee will be a more doctrinaire conservative. Peck likened Justice Kennedy's civil rights record to Thomas Paine's sunshine patriot, who comfortably stakes out a favorable position when the wind is blowing in that direction, but retreats when more heavy lifting is required. Peck said that the distinction often played out on issues of race. In making that case, Peck contrasted the Court's treatment of religious liberty in Masterpiece Cakeshop and its emphasis on the animus expressed in two of the five Colorado commissioners statements with the dismissal of more tethered animus from the president in connection with the Court's deference in the Travel Ban case.

     Peck also highlighted the uneven treatment often afforded those whose civil rights were violated because of the qualified immunity doctrine. There, unless the violation is clearly established before the violation takes place, the misbehavior is excused, essentially allowing one free violation -- as long as the case bothers to label the misconduct as a violation. Even though a prior case need not be on all fours with the current misconduct, and courts regularly recite that standard, it is rarely applied. Peck also highlighted a pending petition to the Supreme Court on qualified immunity, Allah v. Milling, that has attracted an unusual set of amicus supporters that span the ideological spectrum and urged his audience to watch that space.

     Peck also described the Court's recent interest in proximate cause in applying civil rights statutes. The standard applicable in civil rights remains in flux, but could trip up an otherwise meritorious case.

Peck Speaks at AAJ Insurance Law Section Meeting

July 8th, 2018

     CCL President Robert S. Peck reported on the new Restatement of Insurance Liability Law, promulgated by the American Law Institute (ALI), in May to members of the Insurance Law Section of the American Association for Justice, meeting in Denver, Colorado at AAJ's Summer Convention on July 8. The ALI is a prestigious organization of lawyers, law professors and jurists, which publish the authoritatively regarded Restatements of the Law on various subjects. Peck is a member of the ALI.

     Peck described the new Restatement as consumer-friendly, recognizing that consumers rarely have much say over the insurance contracts they sign. During the recent ALI meeting, which gave final approval to the new restatement, members rejected a number of amendments offered by the insurance industry that would have weakened consumer protections in the black-letter law of the proposed Restatement. The result, Peck said, is one that should provide courts with substantial guidance in resolving disputes between insurers and their insured.

Peck Participates in AAJ Legal Affairs Committee Meeting

July 8th, 2018

     CCL President Robert S. Peck participated in the Legal Affairs Committee meeting at the Summer Convention of the American Association for Justice on July 8, 2018 in Denver, Colorado. At the meeting, members discussed the latest legal developments affecting civil justice issues. Peck also reported on recent litigation undertaken by CCL to protect access to the courts.

Peck Speaks at State Constitutional Law Symposium

July 7th, 2018

     CCL President Robert S. Peck reminded judges attending the 2018 Pound Institute Forum for State Appellate Judges in Denver, Colorado, that state constitutions provide a double protection for individual rights that may go beyond the protections afforded by the U.S. Constitution and that state judges also have the authority to interpret the U.S. Constitution. He urged the judges, in appropriate cases, to use the incorporation doctrine to apply the Seventh Amendment's civil jury trial right to the states.

    The Pound forum focused on state constitutions this year. Professors Robert Williams of Rutgers Law School and Justin Long of Wayne State Law School presented papers on state constitutions. Peck was among the panelists commenting on the paper of Professor Williams. At lunch, the 140 judges from 36 states heard from Justice Goodwin Liu of the California Supreme Court, who reprised his Brennan Lecture of last year, delivered at New York University Law School. The lecture focused on the need to undertake an independent interpretation of state constitutional provisions and not to simply adopt the U.S. Supreme Court's views on similar federal rights.

     In Peck's remarks, judges heard about some of the reasons state constitutions, with their own unique text, support a stronger application. Still, he noted that sometimes federal provisions provide strong rights that should be applicable to the states. He gave the Seventh Amendment jury-trial right as an example of the rare Bill of Rights provision that had not been applied to states. He noted that little of the Bill of Rights had been made applicable until the 1960s. The Seventh Amendment's status was a function of jurisprudence that dates back to the late 19th century. Yet, Peck said, when the Second Amendment was made applicable to the states in 2010 in McDonald v. City of Chicago, the Supreme Court urged lower courts not to rely on outdated 19th century precedents. Using the criteria that the Supreme Court said justified incorporating the Second Amendment, Peck pointed out that the Seventh Amendment qualified as well, with an even stronger claim to incorporation.