News

On December 27, the U.S. Court of Appeals for the D.C. Circuit denied a petition from the American Tort Reform Association (ATRA) challenging the Occupational Safety and Health Agency’s (OSHA’s) recent edits to preemption language in the Hazard Communication Standard (HazCom) as ultra vires. Writing for a unanimous panel which included Circuit Judges Griffith and Srinivasan, Senior Circuit Judge Edwards found “no merit in ATRA’s claims.” OSHA’s edits to preemption language, the court concluded, are merely interpretive and thus do not implicate the Administrative Procedure Act’s notice-and-comment requirements. The edits, the court explained, do not definitively determine the preemptive effect of the OSH Act. Rather, they “reflect the agency’s view that HazCom preempts state legislative and regulatory requirements, but not state tort claims.” According to the Court, OSHA acted well within its authority in setting forth its own understanding of the preemptive scope of its regulation. And, because OSHA’s edits were merely interpretive, the court reasoned, “it is not subject to judicial review unless it is relied upon or applied to support an agency action in a particular case.” ATRA’s challenge was thus dismissed as not ripe.

In this case, CCL filed an amicus curiae brief for the American Association for Justice (AAJ) urging dismissal. The brief, written by CCL’s Andre M. Mura, and filed in support of OSHA, expressed AAJ’s concern that if tort remedies against chemical manufacturers are limited through improper application of preemption principles, injured workers will be left without compensation and chemical manufacturers will not have adequate incentive to conduct a thorough hazardous material review, or to update labeling when new hazards emerge. 

The Pennsylvania Supreme Court has refused to disturb a lower court ruling that Wyeth is liable for punitive damages for its marketing and sale of Prempro, a hormone therapy that combines estrogen and progestin. An epidemiologist has estimated that the use of estrogen plus progestin caused approximately 8,000 to 15,000 extra breast cancers each year for women between 50 to 69 years of age. Wyeth asked the Supreme Court to consider whether its compliance with FDA safety standards should, as a matter of law, negate this liability. CCL’s Andre M. Mura wrote an amicus curiae brief on behalf of the Pennsylvania Association of Justice, arguing that there was sufficient record evidence to demonstrate that Wyeth had superior knowledge of Prempro’s cancer-related risks but failed to warn physicians and in doing so acted in reckless disregard of patient safety. Further, CCL argued that FDA approval of a drug and its label, and FDA oversight of drug safety after a drug is marketed for sale, do not absolve a drug manufacturer of its duty under federal and state law to monitor a drug’s safety profile and warn physicians or patients of known risks. More than one year after briefing and oral argument, the high court dismissed the appeal as improvidently granted, which means the lower court’s ruling permitting punitive damages will stand.

CCL welcomes Kathryn S. Minton as the firm’s new associate litigation counsel.  At CCL, Minton will represent plaintiffs in litigating a broad array of state and federal matters at both the trial and appellate level. 

Prior to joining CCL, Minton clerked for Supreme Court of Missouri Judge Paul C. Wilson.  Previously, Minton clerked for Court of Appeals for the Eastern District of Missouri Judge Kenneth M. Romines and worked as a solo practitioner for plaintiffs recovering breach of employer contract damages. 

Minton earned her Juris Doctor from Washington University School of Law, where she was a member of the National ABA Moot Court Team and a Cash Nickerson Fellow, and her Bachelor of Arts in German, with distinction, from the University of Virginia. 

During law school, Minton spent a summer clerking for United States Court of Appeals for the Eighth Circuit Judge Raymond W. Gruender and was a summer associate at the Legal Aid Board in Durban, South Africa.

On December 5-6, CCL’s Andre M. Mura participated in a forum on the proposed amendments to the federal rules of civil procedure hosted by the Institute for the Advancement of the American Legal System (IAALS) in Denver, Colorado. The forum, according to IAALS, sought to “capture comment, critique, and suggestions from a diverse and experienced group of Federal Court practitioners” regarding the proposed amendments. These amendments would, among other things, limit the scope of discovery; further reduce the presumptive limits for discovery tools such as depositions and interrogatories; encourage earlier court participation in case management; and set a high bar for the imposition of sanctions for spoliation. While some participants expressed agreement with the proposals, participants from the plaintiffs’ bar, including members of the American Association for Justice and the National Employment Lawyers’ Association, expressed concern that the amendments would disfavor their clients by impeding their ability to access courts for a merits-based determination by a jury. In addition, plaintiffs’ lawyers sought to offer language changes that would promote efficient and speedy resolution of federal cases, but not at the expense of justice.

IAALS will be summarizing the participants’ views in a report due out in mid-December, and will file the report with the Civil Rules Committee, which solicited public comment on the proposed amendments until February 15, 2014.

CCL President Robert S. Peck reviewed recent U.S. Supreme Court decisions affecting plaintiff's trial practice, as well as proposed changes to the Federal Rules of Civil Procedure at the annual Hawaii Seminar conducted by the Consumer Attorneys of California in Maui.

Peck discussed issues dealing with jurisdiction over foreign defendants, arbitration, class actions, and pleadings, noting that the Court had made each more difficult for plaintiffs. Still, Peck said that careful attention to the triggers for the Court's holdings will enable plaintiffs to overcome many of the Court's recent rulings.

Peck also highlighted the importance of filing comments on the federal rules committees proposed changes to civil procedure, particularly those governing discovery.  He noted that, even though the rules were intended to cover procedure in the federal courts, the same rules inevitably come to govern state court procedures as well.

On Friday, November 22, CCL Senior Litigation Attorney Louis Bograd spoke on developments in generic drug preemption litigation in the wake of the U.S. Supreme Court’s Mensing and Bartlett decisions, the former of which Bograd argued before the high court, at the Louisiana State Bar Association’s Complex Litigation/Class Action Symposium in New Orleans. The featured presentation by Bograd occurred on a panel on “Recent Preemption Activity: Drugs, Devices & Generics." Recently, the Food and Drug Administration proposed new regulations, now undergoing a comment period, that would effectively reverse Mensing and subject generic drug manufacturers to the same responsibilities to warn consumers of adverse risks that name-brand manufacturers must discharge.

At its fall meeting in Washington, D.C., the National Center for State Courts (NCSC) held several sessions led by CCL attorneys. CCL President Robert S. Peck moderated a session November 21, entitled, "A conversation with Chief Justices," in which lawyers and corporate council had an opportunity to raise questions about issues facing the judicial system with more than 20 state Supreme Court chief justices.  Peck also co-chaired a November 22 meeting of the NCSC Lawyers Committee, which discussed a forthcoming task force effort to look at improving the civil justice system and other NCSC projects. CCL Senior Litigation Counsel Andre Mura also co-chaired a meeting that day of the NCSC Young Lawyers Committee, which discussed a civic education project using NCSC-produced graphic novels about the justice system, as well as presented on that project to the Lawyers Committee.

The NCSC is the think tank of the state courts and staffs the Conference of Chief Justices, the Conference of State Court Administrators, and other associations of judicial leaders.

Today CCL filed an amicus curiae brief on behalf of the American Association for Justice, urging the Supreme Court to grant a Petition for Certiorari in a case challenging the immunity of the federal government from suit by active duty military personnel. Read v. United States, No. 13-505. Prior to deployment to Afghanistan, 19-year-old Airman 1st Class Colton Read was admitted to the Travis Air Force Base David Grant Medical Center, the Air Force’s “state-of-the-art,” 3,662-room facility, for routine laparoscopic gallbladder surgery. The inexperienced surgical resident accidentally punctured Read’s aorta, causing massive loss of blood. The supervising surgeon repaired the vessel, but blocked blood flow to Read’s legs. Several hours passed before Read was transferred by air to a civilian hospital. By that time, the damage to Airman Read’s legs was irreversible, and both were amputated.

Read and his wife filed suit under the Federal Tort Claims Act. The district court granted the government’s motion to dismiss based on an exception to the FTCA announced in Feres v. United States, 340 U.S. 135 (1950), for injuries to active duty military personnel that are “incident to” military service. The Fifth Circuit affirmed, observing that, although Feres has been widely criticized, the U.S. Supreme  Court has repeatedly upheld the immunity. The Reads filed a Petition for Certiorari.

AAJ filed an amicus brief authored by CCL Senior Counsel Jeffrey White supporting the Petition. The AAJ brief points out that the Court’s own shifting rationales for the immunity have resulted in inconsistent and unfair results. For example, if Read had been discharged from active duty just prior to surgery or if the same providers at the same facility had inflicted the same malpractice on Read’s spouse or child, the courthouse door would be open to their FTCA suit for damages. In addition, non-accountability removes an incentive for investing in improved care for service members. AAJ urged the Court to revisit and overturn the Feres doctrine, at least for claims of negligent medical care.

CCL has long been involved in efforts to protect the rights of plaintiffs injured by prescription drugs to pursue state tort remedies for their injuries and has aggressively opposed efforts by drug manufacturers to invoke federal preemption to shield them from such liability. In Pliva, Inc. v. Mensing, a case argued by CCL Senior Litigation Counsel Louis Bograd, the Supreme Court ruled, 5-4, that generic drug companies were largely immune from state failure-to-warn liability, because federal law prohibited them from adding new or strengthened warnings about their drugs without prior FDA approval. Now, after prolonged efforts by CCL, the American Association for Justice, and other advocates for injured plaintiffs, the FDA stands ready to overturn Mensing, at least prospectively, and effectively to restore plaintiffs’ rights. In a notice of proposed rulemaking published last week, FDA proposed revised regulations that would permit generic drug manufacturers to add new or strengthened warnings to their labels—and to send Dear Doctor letters about those changes—without prior agency approval, so long as the company simultaneously submits a supplemental application to the FDA seeking approval for the change. As the FDA notes, the proposed regulations would achieve “parity” between manufacturers of brand-name and generic drugs and thereby subject generic manufacturers to tort liability on the same basis as brand-name manufacturers. CCL will be working closely with AAJ and others to submit comments to FDA in support of the proposed regulations.

CCL President Robert S. Peck spoke on emerging trends in civil justice at the Eighth Annual Judicial Symposium on Civil Justice Issues at George Mason University School of Law, the fourth time he served as the opening speaker at this judicial education program.  The audience of judges and webcast viewers heard Peck discuss recent rulings by the U.S. Supreme Court on a variety of civil justice issues.  Unlike its blockbuster ruling in Wal-Mart v. Dukes in 2011, Peck said that last term’s class action rulings addressed small, technical matters that could be overcome by workarounds that were not difficult to achieve.  The Court also declined several cases, including one handled by CCL this term, to resolve longstanding issues about the correct test to use for a state to exercise jurisdiction over foreign manufacturers.  However, he pointed out that another case this term, DaimlerChrysler v. Bauman, has some potential to indicate when a domestic corporation is subject to a state’s jurisdiction when only its wholly owned subsidiary is present in the state.  Peck said that that issue would only be reached if the Court were to decide the case broadly, as the issue actually presented in the case was whether the German automobile manufacturer could be subject to jurisdiction in California through its wholly owned U.S. subsidiary for actions taken by its wholly owned Argentinian subsidiary.  Because of the complicated fact pattern in this human rights case, Peck said it is entirely possible that the domestic issue would be left untouched.  The two-day symposium drew attendance from trial and appellate judges from state and federal courts across the country.