Ending Johnson & Johnson’s Bid to Avoid Liability, U.S. Supreme Court Denies Certiorari in Children’s Motrin Case

January 19th, 2016

The U.S. Supreme Court today ended pharmaceutical manufacturer Johnson & Johnson’s bid to avoid liability for failing to warn doctors and parents that the appearance of redness, rashes or blisters after taking Children’s Motrin can lead to serious consequences. In 2003, a feverish seven-year-old Sammie Reckis was administered Children’s Mortin by her father. When she received no relief, her pediatrician administered another dose. Sammie was taken to the hospital after blisters began to appear, where yet another dose was given. Blisters soon appeared all over her body, and she was diagnosed with Toxic Epidermal Necrolysis (TEN), a life-threatening skin disorder that is usually fatal. The top layer of her skin began drying and sloughing off in sheets and, to ease her pain, Sammie was placed into a medically induced coma. She suffered heart and liver failure, a stroke, an aneurysm, and a cranial hemorrhage. She is now a tremendously underweight, blind adult. A jury found Johnson & Johnson liable and set compensation for Sammie and her family at $63 million.

Johnson & Johnson, after losing in the Massachusetts Supreme Judicial Court, asked the U.S. Supreme Court to take the case, claiming that the state courts ignored clear evidence that the Food & Drug Administration would have forbidden it from placing a warning about redness, rash and blisters on their label and arguing that the Massachusetts decision conflicted with one from the Chicago-based U.S. Court of Appeals for the Seventh Circuit. In opposition on behalf of the plaintiffs, CCL argued that not only did not clear evidence exist that the FDA would prosecute Johnson & Johnson for providing a warning that would have spared Sammie her nightmare, but that subsequent FDA actions requiring warnings about redness, rashes and blisters on the label supported the plaintiffs. Moreover, the claimed conflict between appellate courts was an imagined one, given that the essential holdings of the two courts were the same.

CCL’s Robert S. Peck served as counsel of record on the Supreme Court brief, where he worked with Michael Bogdanow, Leo Boyle, Brad Henry, and Victoria Santoro of Boston’s Meehan, Boyle, Black & Bogdanow, P.C.

CCL Seeks Invalidation of Florida Law Extending “Sovereign Immunity” to Private University Medical Faculty

January 15th, 2016

In a brief in support of summary judgment filed in a Florida trial court, CCL joined Florida lawyers in seeking invalidation of a Florida statute that extends the state’s immunities from lawsuits to the medical faculty of a private university when practicing medicine at Jackson Memorial Hospital, which is operated by a county agency. The declaratory judgment action argues that the legislature lacked authority to provide sovereign immunity to a private party and that the extension violates a variety of patients’ constitutional rights.

The disputed statute was enacted in 2011 to immunize medical faculty at the University of Miami from malpractice liability when scheduling their patients at Jackson. The immunity does not cover the faculty when they practice at the University of Miami hospital across the street from Jackson. In the immunized cases, a patient injured through malpractice must sue the State of Florida, whose liability is limited by the state tort claims act. Any liability assessed must then be reimbursed by the university.

The plaintiff’s summary judgment brief, filed January 15, argues that the Florida Constitution only authorizes the legislature to waive immunity, not extend it, constitutes impermissible special legislation, and prohibits the state from lending its credit to a private party. In addition, the brief contends that the extension of immunity violates the patient’s access to courts, jury trial, equal protection and due process rights. CCL’s Robert S. Peck represents the plaintiffs, along with Neal A. Roth and Rachel Furst of Grossman Roth, P.A.

Peck Argues Against Motion to Dismiss Miami Gardens Fair Housing Case

January 8th, 2016

In a hearing held in the federal district court in Miami, CCL President Robert S. Peck argued that there were no grounds to dismiss the complaint filed by the City of Miami Gardens, Florida against Wells Fargo Bank over its minority mortgage lending practices. Wells Fargo argued that the 2015 U.S. Supreme Court decision in Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2521 (2015), had imposed a heightened pleading standard in disparate-impact claims brought under the Fair Housing Act. Peck denied that any additional pleading requirements were imposed and pointed out that the Supreme Court had previously chastised the Court of Appeals for the Second Circuit for attempting to impose one. Instead, as the Supreme Court’s decisions consistently hold that the plain and simple pleading required by Rule 8 of the Federal Rules of Civil Procedure govern.

CCL’s Nannery Attends Meeting of Committee on Rules of Practice & Procedure

January 8th, 2016

CCL’s Valerie M. Nannery attended the meeting of the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States (“Standing Committee”) in Phoenix, Arizona on January 7, 2016, where the Standing Committee discussed potential amendments to the rule governing class actions and proposed amendments to the time limit for appellate reply briefs. Nannery attended as an observer on behalf of the American Association for Justice. At the meeting, the chairs of each the advisory committees presented action items and information items for the Standing Committee to consider, including approval of the publication of proposed rule amendments for public comment.

Among the proposed rule amendments approved for publication are changes to the Federal Rules of Appellate Procedure that will lengthen the time to file a reply brief to 21 days, up from the current 14 days. This proposal was precipitated by the abrogation of the “three-day rule,” which currently gives appellants and cross-appellants an additional three days to file their reply briefs, making the effective time limit 17 days. Pending amendments to the Appellate Rules, which will go into effect December 1, 2016, unless the Supreme Court or Congress acts to stop it, abrogate the “three-day rule,” effectively reducing the amount of time to file a reply brief. The Standing Committee unanimously approved publication of proposed amendments to Rules 31 and 28.1 to allow 21 days for a reply brief to be filed.

The Civil Rules Advisory Committee received feedback from members of the Standing Committee on the current drafts of potential amendments to Civil Rule 23 regarding class actions. Much of the discussion focused on the current draft amendment intended to deal with objectors to class action settlements. The Civil Rules Advisory Committee will likely act on any proposed amendments at their next meeting in April, and will likely submit them to the Standing Committee in June for approval for publication for public comment. The Civil Rules Advisory Committee also received feedback from the Standing Committee on ideas for pilot projects and how to assess them.

CCL Files Opening Brief in LA Fair Housing Appeal

January 6th, 2016

Arguing that the District Court applied the wrong standard, which led to the wrong approach, CCL, representing the City of Los Angeles, filed the opening brief in a case where the City has sought compensation from Wells Fargo Bank for lost tax revenues and for remediation costs as a result of the a practice of steering minority borrowers to more expensive and riskier loans than they were eligible for, resulting in foreclosures and other problems. A federal district court granted the bank summary judgment because it held that the government-insured and high-interest loans offered to these borrowers during the prior two years were not inherently discriminatory and therefore did not satisfy the statute of limitations.

The brief, largely written by CCL President Robert S. Peck, argued that the City’s claims were not tied to specific characteristics of particular loan categories, but to the practice of directing minorities to higher cost loans. As in a 2015 decision of the Eleventh Circuit won by CCL for the City of Miami, the bank’s switch from one type of loan to another did not render the practice “any less ‘continuing.’”

In addition to CCL, other counsel on the brief include Dean Erwin Chemerinsky of the University of California-Irvine law school, Joel Liberson of Tare Resources, the Hagens Berman law firm, and Los Angeles City Attorney Michael Feuer.

NYU Law Review Publishes Peck Panel Discussion on Judicial Recusal

December 10th, 2015

A symposium issue of the New York University Law School’s Journal of Legislation & Public Policy features a transcript of a panel discussion on “The State of Judicial Recusal Reform, that includes presentations by CCL’s Robert S. Peck, Arizona State University law professor Myles Lynk, and Maryland Judge Roni Clarke. The panel was moderated by Indiana University law professor Charles Geyh and was part of a December 2014 symposium at NYU entitled, “Courts, Campaigns, and Corruption: Judicial Recusal Five Years After Caperton.” Caperton v A.T. Massey Coal Co. was a 2009 U.S. Supreme Court decision that held that recusal was required in certain instances where a party provided disproportionate funding for or against a judicial campaign. Other participants in the symposium included New York Chief Judge Jonathan Lippman, Ohio Chief Justice Maureen O’Connor, former Alabama Chief Justice Sue Bell Cobb, former Wisconsin Supreme Court justice Louis Butler, and New York Times Supreme Court reporter Adam Liptak.

Challenge to Florida Immunity Statute Survives Motion to Dismiss

December 9th, 2015

A state circuit court in Miami has denied the University of Miami Hospital’s motion to dismiss a declaratory judgment action challenging a Florida law that gives governmental immunity to private hospitals designated as teaching hospitals. The December 9 ruling rejected arguments that the complaint, filed August 11, 2015, was deficient. The hospital was ordered to answer the complaint.

In the case, Vallecillo v. Ehammady, CCL’s Robert S. Peck is working with Neal Roth of the Miami law firm of Grossman Roth.

CCL Files Brief in Opposition to Certiorari in U.S. Supreme Court Case involving Children’s Motrin

December 9th, 2015

Opposing review of a $63 million dollar Massachusetts verdict for catastrophic injuries as a result of taking Children’s Motrin, CCL argued that the petition filed by Johnson & Johnson failed to demonstrate a conflict between courts, present a case that properly raises the question it would like the Court to answer, and show a need for the Court to amplify a rule that the courts of the nation continue to apply consistently.

The case began when Samantha Reckis, then seven years old, was given Children’s Motrin by her father in 2003. At the time, even though the manufacturer was aware of symptoms that could lead to severe skin reactions, it provided no warning that redness, rash or blisters were indicators that use of the drug should cease. After further doses administered on a pediatricians’ instructions and by a hospital, Samantha was diagnosed with Toxic Epidermal Necrolysis (TEN), a life-threatening skin disorder in which the outer layer of skin sloughs off in sheets. In 2006, on the basis of a Citizen Petition, the FDA required this over-the-counter drug to include a warning about redness, rash, and blisters.

Nonetheless, Johnson & Johnson has asked the Supreme Court to reverse the decision of the Massachusetts Supreme Court that found the state cause of action not preempted by federal law, arguing that the FDA’s decision constituted clear evidence that it would not have approved the warning that jury would have found adequate.

CCL’s Robert S. Peck serves as counsel of record at the U.S. Supreme Court in Johnson & Johnson v. Reckis. He is joined on the brief by the team that won the case in the Massachusetts courts, Michael B. Bogdanow, Leo V. Boyle, Bradley M. Henry, and Victoria M. Santoro of Meehan Boyle Black & Bogdanow of Boston.

Nebraska Federal Cap Challenge to Head to Eighth Circuit

November 25th, 2015

Only hours after CCL, along with co-counsel Dr. Patrick Cullan of Omaha’s Cullan & Cullan, filed their sur-reply brief on the constitutional issues, the U.S. District Court issued its opinion upholding a jury’s verdict of $17 million but reduced the judgment to $1.75 million in line with Nebraska’s cap on damages in medical malpractice cases. The underlying case involved a child born with severe brain damage due to medical malpractice.

Although the court rejected all of the defendant hospital’s post-trial objections to the verdict, it also rejected all of the constitutional challenges to the cap. In finding no violation of the Seventh Amendment’s right to trial by jury, the court reasoned that the right is limited to cases involving more than $20 and that this limit on federal jurisdiction may not apply to state courts of general jurisdiction might not possess, making application of the jury-trial right to the states problematic. The court further reasoned that the cap, which is supported by a state fund, assures a “more certain recovery,” as in workers compensation laws, thereby providing a constitutional basis for its imposition.

CCL’s Robert S. Peck and Valerie Nannery worked on the constitutional arguments in the District Court brief and will continue in that role as the case is appealed to the Eighth Circuit in the case, Schmidt v. Bellevue Medical Center.

Peck Moderates Chief Justice Discussion, Chairs NCSC Lawyers Committee Meeting

November 19th, 2015

CCL President Robert S. Peck served as moderator on November 18 for the “Conversation with the Chief Justices,” a wide-ranging discussion between state supreme court chief justices and members of the National Center for State Courts (NCSC) Lawyers Committee and Corporate Counsel Committees. Peck has served as the moderator for this annual Washington, D.C. event since it was started three years ago. Much of the discussion centered around recent attacks on courts and funding issues, as well as the role of the bar in defending the courts and helping secure adequate funding. The discussion was followed later that evening with the annual Rehnquist Dinner at the Supreme Court of the United States, hosted by Chief Justice John Roberts.

The following morning, Peck chaired the annual meeting of the NCSC Lawyers Committee, where he welcomed new members. The Committee discussed developments in the courts, were briefed by NCSC staff, and discussed future plans. Peck is a former co-chair of the Committee, substituting that morning for the current co-chairs, both of whom had court appearances.