News

CCL’s Robert S. Peck participated in a meeting of the Board of Directors of Justice at Stake, a nonpartisan national partnership of more than 50 organizations, working to keep courts fair and impartial through public education, litigation and reform. The Oct. 18-19 board meeting took place in Seattle, Washington, where the board discussed developments in judicial elections and its impact on the work of courts. Peck chairs the Board’s amicus curiae committee.

With unusual speed, the U.S. Court of Appeals unanimously upheld a $48 million verdict in favor of an injured airport baggage handler October 16, in a case argued by CCL’s Robert S. Peck just two weeks earlier. Vito Saladino suffered severe injuries, sufficient to render him a quadriplegic, when the hood of the baggage tractor he was riding as a passenger at the end of his shift, was blown open by jetwash from a test start at a gate at JFK airport, breached the passenger compartment, and hit him on the head. The Second Circuit’s summary order in Saladino v. Stewart & Stevenson Services, Inc. affirmed the judgment in all respects, finding the evidence sufficient to support liability, rejecting the defendants’ argument that no liability should attach because the optional cab of the tractor had been removed, that expert testimony was necessary to establish the placement and wording of the missing warnings, that Saladino did not need a warning as an allegedly knowledgeable user, and that the District Court abused its discretion under New York law in upholding a $15 million award for past and future pain and suffering.

At a policy symposium sponsored by the RAND Institute for Civil Justice, CCL’s Robert S. Peck spoke on “The Future of Class Actions after Wal-Mart v. Dukes” Oct. 16 in Santa Monica, California. In the Wal-Mart case in 2011, the Supreme Court of the United States tightened the commonality requirements for the certification of class actions under Federal Rule of Civil Procedure 23 and decertified the largest federal employment class action ever assembled. Since the decision, defendants have tried unsuccessfully to apply the same reasoning to state class actions as a matter of due process. Peck spoke about these cases and why the Court’s new construction of Rule 23 should not affect class actions tried in state courts.

As a member of its governing Council, CCL’s Robert S. Peck attended the Fall Meeting of the American Bar Association’s Tort, Trial and Insurance Practice Section (TIPS), who boasts 20,000 members, held in La Quinta, California October 10-14. During the meetings, issues regarding judicial disqualification, trial by jury, and asbestos litigation were discussed. Peck chairs the TIPS task forces on judicial disqualification issues and asbestos litigation.

CCL’s John Vail presented a paper at the University of South Carolina School of Law’s Symposium on Personal Jurisdiction. You can now access the 2011 Symposium Issue, including John’s article “Six Questions in Light of J. McIntyre Machinery, Ltd. v. Nicastro.”

Today, CCL filed a brief in response to the amicus curiae brief filed by the Civil Justice Association of California in Hughes v. Pham, a challenge to California’s $250,000 cap on noneconomic damages now pending in the California Court of Appeal for the Fourth District, Division Two. Although briefing on the constitutional issues was completed in July, CJAC filed its brief in September. CCL’s Valerie M. Nannery authored the brief in response. The case is now fully briefed and awaits a date for oral argument.

The U.S. Supreme Court denied certiorari this morning in McNeil-PPC, Inc. v. Hutto, a preemption case in which CCL represented the respondents. In Hutto, McNeil—the manufacturer of Tylenol—tried to argue that the logic of the Supreme Court’s implied preemption ruling in Pliva, Inc. v. Mensing required preemption of plaintiffs’ claims, even though the drug at issue in Hutto was neither a generic nor a prescription drug. Federal law regulates over-the-counter (OTC) drugs in an entirely different way from prescription drugs—through a monograph system—and expressly preserves product liability claims against OTC drug manufacturers, but McNeil argued that these factors did not preclude implied preemption and sought review of a judgment against it in the Louisiana state courts. Today, the court denied McNeil’s petition without recorded dissent, Justice Alito not participating. CCL’s Lou Bograd, who argued Mensing before the Supreme Court, handled the opposition to the certiorari petition.

In a disappointing 109-page ruling, the Kansas Supreme Court upheld that state’s longstanding cap on noneconomic damages in tort cases. The underlying case, Miller v. Johnson, involved a medical malpractice case in which the doctor-defendant, treating a young woman for cancer, removed the wrong ovary, necessitating removal of her remaining ovary and inducing menopause at a young age. The cap reduced the plaintiff’s damages from $750,000 to $250,000. The majority held that the cap did transgress the right to trial by jury as historically evaluated, but then justified the cap on the basis of a supposed quid pro quo that inured to plaintiffs’ benefit, adopting a stance that all parties to the case denied was appropriate. The decision provoked two strong dissents, one of which ended with the following statement: “this court has incorrectly and unnecessarily limited jury involvement and allowed a segment of unfairly burdened Kansans to drown while maintaining higher profits for insurance companies and lower expenses for doctors. Shame on us.”

The case was argued twice before the Kansas Supreme Court. CCL’s Robert Peck participated in the second argument in February 2011, and another CCL attorney participated in the first argument in October 2009. A report on the decision is available from the Kansas City Star.

CCL urged the Supreme Court not to make many class actions prohibitively expensive by indulging a presumption that they lead large companies to settle cases unwarrantedly. Careful analysis of over thirty years of empirical study indicates that the proposition simply is not true, CCL’s John Vail wrote in an amicus brief filed today on behalf of the American Association for Justice, AARP, and Public Justice, P.C., in Comcast v. Behrend, No. 11-864. Class actions often are the only way small claims against large companies can be litigated, the brief states.

The case will be argued Nov. 5.

On October 2, CCL’s Robert Peck spoke on the opening panel of the National Summit on Language Access in the Courts, held in Houston, Texas. Sponsored by the National Center for State Courts, the Conference of Chief Justices, and the Conference of State Court Administrators, the summit was designed to assist the attending teams from 49 states, the District of Columbia, and territorial jurisdictions in implementing their constitutional and Title VI obligations to assure that parties have interpreters to enable them full access to the courts. Peck spoke on the constitutional background of the interpreter issue in the courts on a panel moderated by Chief Judge Eric Washington of the District of Columbia Court of Appeals and Michael Buenger, a lawyer who spoke on the Title VI issues.

The Conference is described at http://www.ncsc.org/Conferences-and-Events/Language-Access-Summit.aspx.