Georgia Supreme Court Rejects Railroad Claim that FRSA Preempts FELA Suit.

September 23rd, 2013

The Supreme Court of Georgia has held that a railroad may be liable under the Federal Employers Liability Act (FELA) to injured crew members for failure to provide safety training regarding grade crossing collisions. Norfolk Southern Railway Co.v. Zeagler, ___ S.E.2d ___ (Ga., Sept. 23, 2013). CCL Senior Counsel Jeffrey White argued in an amicus curiae brief filed on behalf of the American Association for Justice that the FELA action was neither preempted nor precluded by Federal Railroad Safety Act regulations.

Freight conductor Zeagler was riding in the locomotive cab when a logging truck pulled onto the tracks at a grade crossing. Although the engineer pulled the emergency brake, it was clear the train could not stop in time. As Zeagler was scrambling to exit the locomotive, he fell and injured his back. He brought suit under the FELA, alleging that the railroad negligently failed to instruct workers to brace in place when a collision is imminent, rather than try to escape from the locomotive. The trial judge granted Norfolk Southern’s motion for summary judgment on the ground that that it had no duty under federal law to provide such training. The court of appeals reversed.

The Georgia Supreme Court upheld the appellate court’s determination that injury to trainmen is clearly foreseeable and that the railroad owed a duty “to provide Zeagler with whatever training is reasonably appropriate to protect him from injury in such accidents.” The court rejected the railroad’s contention that Federal Railroad Safety Act regulations, which do not specifically require such collision training, preempt Zeagler’s FELA cause of action. The court made clear at the outset that preemption doctrine, based on the constitutional supremacy of federal law over state law, does not apply to a potential conflict between federal laws. Nor do the FSRA regulations preclude the FELA claim. The court did not reach the narrow scope of preclusion advocated by the AAJ brief. In this case, where FSRA regulations do not prescribe any particular safety instructions, there was nothing that could preclude plaintiff’s FELA lawsuit under even a relaxed standard. The court also rejected Norfolk Southern’s argument that precluding the cause of action would serve the goal of national uniformity for railroad requirements. Instead, the court held that “any ‘national uniformity’ in this area will occur through the recognition of a standard of care in cases brought under FELA.”

Federal Court Hears Challenge to New Florida Medical Malpractice Law

September 18th, 2013

Hearing the first challenge to a new Florida law that raises serious privacy concerns, U.S. District Court Judge Robert Lewis Hinkle wondered aloud why any judge would not see the new law as a violation of federal privacy rights.  The Florida law, passed earlier this year and which went into effect July 1, requires a prospective medical-malpractice plaintiff to authorize doctors, their lawyers and their insurers to interview a medical-malpractice plaintiff’s treating physicians without the plaintiff’s lawyer present, beginning 90 days before any lawsuit is brought.  Known in the law as an “ex parte” interview, because only one side of the dispute is present, the law dissolves the doctor-patient privilege, as well as rights guaranteed by the federal Health Insurance Portability Accountability Act (HIPAA).  HIPAA requires that private health information remain private except in certain specific circumstances, such as a result of a court order that follows an opportunity for the patient to object to the disclosure of information unnecessary for the defendant to prepare his defense or where a plaintiff signs a valid authorization.  

Previously, Florida law did not permit ex parte interviews because, as the Florida Supreme Court stated, “were unsupervised ex parte interviews allowed, plaintiffs ‘could not object and act to protect against inadvertent disclosure of privileged information nor could they effectively prove that improper disclosure actually took place.”  Other state courts have pointed out that an ex parte interview carries the danger that ““the physician witness might feel compelled to participate in the ex parte interview because the insurer defending the medical malpractice defendant may also insure the physician witness.”

In Doe v. Dulay, the case before Judge Hinkle, who sits on the federal district court for the Northern District of Florida, CCL President Robert S. Peck argued on September 18 that the Florida law could not be reconciled with the privacy guarantees of HIPAA. 

 “While HIPAA permits a State to enhance privacy rights,” Peck told the judge, “the Florida statute plainly detracts.”  Peck argued that the authorization required by the Florida law to begin the presuit process in that state was not voluntary, lacked necessary specificity, requires revelation of private health information not relevant to the dispute, contained no meaningful right to revoke or to object, and constituted an impermissible compound authorization.  Even the provision that allows a patient to list doctors and dates of treatment that are not subject to ex parte interviews forces the revelation of private information protected by HIPAA.

The defendant doctor’s attorney and the Florida Attorney General’s office both argued that the mandatory authorization form required for commencing the presuit process was voluntary because bringing a lawsuit is a voluntary act.  In addition, even though the authorization form must be signed under state law 90 days before bringing any lawsuit, both opponents asserted that the declaratory judgment sought by the plaintiff in this case was premature.

 Judge Hinkle did wonder why federal injunctive relief was needed at this time, when he believed any judge would find the Florida law invalid.  Peck answered that no prudent lawyer would take a chance that the underlying medical malpractice claim would be dismissed for failure to follow Florida procedure when a valid federal lawsuit could settle the issue in advance.   The judge indicated that he would try to come to a quick decision in the case.

Massachusetts SJC Upholds Punitive Award For Dangerous Pool Slide

September 16th, 2013

The Massachusetts Supreme Judicial Court has upheld a substantial award of punitive damages in a wrongful death action against a toy retailer. Aleo v. SLB Toys USA, 2013 WL 4849097 (Mass., Sept. 13, 2013). The court’s reasoning on the amount of the jury’s award largely tracked arguments advanced by CCL Senior Counsel Jeffrey White in an amicus curiae brief filed on behalf of the American Association for Justice and the Massachusetts Academy of Trial Attorneys.

The product was a Banzai Falls inflatable pool slide imported from China and sold by defendant Toys R Us. Robin Aleo, a 29-year-old wife and mother, slid down head-first. At the bottom, the underinflated slide allowed her head to strike to concrete pool edge, severing her spinal cord and resulting in her death a day later. A jury found Toys R Us liable for gross negligence in marketing the slide, which failed to meet federal safety standards, awarding $2.6 million in compensatory and $18 million in punitive damages.

On direct appeal to the Supreme Judicial Court, Toys R Us contended that due process limited punitive damages to no more than the compensatory award, particularly because gross negligence is the least blameworthy conduct triggering punitive liability.

The court noted that the role of the reviewing court is not to substitute its judgment for the moral condemnation expressed by the jury in awarding punitive damages within constitutional limits. The court also emphasized that the U.S. Supreme Court has repeatedly rejected a “bright line” ratio between punitive and compensatory damages. Additionally, although the compensatory award might be viewed as “substantial” in some contexts, “its significance pales when viewed not as compensation for economic loss or emotional distress but for the loss of a young woman's life.” The court concluded, based on the reprehensibility of the misconduct and the possible civil penalties, that the single-digit ratio award was not grossly excessive so as to exceed constitutional bounds. 

A Jurist and a Lawyer Consider Judicial Recusal after Caperton

September 12th, 2013

Standing in the party’s shoes when considering a motion to recuse is one of the key pieces of advice CCL President Robert S. Peck gives judges in an article entitled, “A Jurist and a Lawyer Consider Judicial Recusal after Caperton,” published in the new issue of Judge’s Journal, a publication of the ABA’s Judicial Division. Coauthored with Judge N. Randy Smith of the U.S. Court of Appeals for the Ninth Circuit, Peck reviews the decision in Caperton v. A.T. Massey Coal Co. (2009), and discusses its implications.

Stating that there is enough experience since the 2009 decision “to know that Caperton-like disqualification motions will not become de rigueur,” Peck indicates that states revising their rules to heed the Supreme Court’s call for objective standards need not adopt “bright-line rules,” but instead reflect state-specific values, mindful of the need to assure a fair hearing.

CCL Files Brief Opposing Supreme Court Review of Personal Jurisdiction Issue

September 6th, 2013

SNFA, a manufacturer of custom aerospace ball bearings based in France, has asked the Supreme Court of the United States to review the Illinois Supreme Court’s ruling that SNFA is amenable to suit in Illinois for damages arising out of a helicopter crash there. Along with Todd A. Smith and Brian LaCien of Powers, Rogers & Smith, P.C. in Chicago, CCL’s Andre Mura, assisted by CCL’s Robert S. Peck, drafted the brief in opposition on behalf of the plaintiff.

In this case, Michael Russell, then living in Illinois, died when the air ambulance he was piloting, an Agusta 109C helicopter, crashed in the greater Chicago area. The helicopter, manufactured in Italy by Agusta S.p.A., utilized seven tail rotor bearings custom made for that aircraft by SNFA.  Russell’s estate sued the helicopter owner, the helicopter’s manufacturer and distributor, and SNFA, the manufacturer of the custom bearings which were allegedly defective and responsible for the accident. SNFA challenged the Illinois court’s personal jurisdiction. The Illinois Supreme Court, however, concluded that the “plaintiff [in this case] has presented sufficient evidence to establish that [SNFA] engaged in Illinois-specific activity to establish minimum contacts with Illinois under [Justice O’Connor’s] more demanding standard,”—a standard Justice O’Connor described in her plurality opinion in Asahi Metal Industry Co. v. Superior Court of California, Solano County, 480 U.S. 102, 110-12 (1987).

The petition seeks review on the theory that the Illinois Supreme Court’s ruling is inconsistent with Supreme Court precedent. The brief in opposition, however, explains that the court’s ruling is consistent with the Court’s precedent, that the record in the case established that SNFA conducted business in Illinois, that Agusta served as an agent for SNFA in Illinois, providing replacement parts to aircraft needing SNFA’s custom bearings, and that further review is unwarranted.

The case is currently set for the Supreme Court’s September 30th conference, when the Court is scheduled to review petitions filed over the summer and determine which cases to add to the upcoming term.

Vail Argues Arbitration Is Not Health Care

September 5th, 2013

“Arbitration is not health care,”  CCL’s John Vail told the Massachusetts Supreme Judicial Court yesterday, urging it not to enforce an arbitration agreement signed by a person authorized to make health care decisions for a nursing home resident whose death allegedly was caused by the nursing home’s  neglect.

An active bench peppered Vail and opposing counsel with questions.  In response to one, Vail noted that deciding when a patient gets mail, or what he eats, are, unlike arbitration, necessary incidents of providing health care to an incompetent person in a residential setting.  Illustrating her point that it was questionable whether a health care proxy had even the power to use the principal’s money to pay health care bills, one Justice asked Vail’s opponent whether a proxy was empowered to sell a principal’s house to pay them.   No cogent answer came forth.

The Court, which recently issued two opinions finding that prior decisions about arbitration were pre-empted under recent Supreme Court decisions, speculated about whether the Federal Arbitration Act would permit it to treat paying bills as within the scope of the health care proxy but agreeing to arbitration as outside the scope.

The plaintiffs in Johnson v. Kindred Healthcare, Inc., are represented, in addition to Vail, by David J. Hoey of North Reading, MA.  The case was consolidated for argument with Licata v. GGNSC Malden Dexter, LLC.  A decision is expected within 130 days.

Brand Drugmaker Liability To Be Decided in Alabama

September 4th, 2013

On Wednesday, September 04, 2013, the Alabama Supreme Court heard oral argument on rehearing in the case of Wyeth v. Weeks. The case involves the issue of whether the manufacturer of a brand-name drug may be held liable for injuries caused by its misrepresentations about the drug to a plaintiff who was injured as a result of his doctor’s reliance on the manufacturer’s representations, even though the plaintiff’s prescription was filled with a generic equivalent of the branded drug. Last January, the Alabama Court decided 8-1 that the manufacturer may be held liable for misrepresentation under these circumstances. Wyeth petitioned for rehearing, leading to this week’s argument.

CCL Senior Litigation Counsel Lou Bograd filed an amicus brief on behalf of the American Association for Justice in support of the Court’s earlier ruling. Bograd was also quoted in a Reuters article, “Brand drugmaker liability in the spotlight at Alabama high court,” setting the stage for the argument. ”The defendants want to characterize this as the sky falling and the world ending,” said Bograd in the article. “Misrepresentation resulting in physical injury is a well-recognized tort.”

New Mexico Supreme Court Forces Nursing Home Into Court

August 15th, 2013

A nursing home that allegedly killed one of its residents will have to defend itself in court, and not before a secret arbitral panel. Yesterday, the New Mexico Supreme Court denied review of a decision by the New Mexico Court of Appeals that had rejected arbitration, adopting arguments made by CCL.

“Nursing homes cannot bury their dead in private. The victim’s family will have its day in court,” said CCL attorney John Vail, counsel for plaintiffs in the case.

The Court of Appeals had ruled that the unavailability of the discredited National Arbitration Forum (NAF) rendered the arbitration agreement unenforceable. Although the agreement between the victim and the nursing home did not designate NAF as the arbitrator, it did require that NAF’s rules be used in any arbitration.  CCL pointed out that the NAF rules provided that no one but NAF was allowed to use them, and that therefore there was no difference between this agreement and one that did designate NAF.

The NM Supreme Court had previously held that an agreement designating NAF as arbitrator was unenforceable because they had agreed with the Minnesota Attorney General not to administer consumer arbitrations after the Attorney General charged NAF with running a biased arbitral scheme. Yesterday’s denial of the nursing home’s petition for certiorari reaffirms that ruling.

Dusti Miller and Jennifer Foote of the Miller Law Firm in Albuquerque are co-counsel with CCL on the case.

CCL Challenges Ex Parte Communications

August 13th, 2013

After the Florida Legislature enacted a new law authorizing prospective medical malpractice defendants, their counsel, their insurers, and their witnesses to engage in ex parte interviews with the injured person's treating physicians, CCL, working with Florida lawyers, filed multiple federal and state court challenges to the law as inconsistent with federal privacy rights and violative of Florida constitutional protections. As most people know, health care practitioners provide new patients with a statement of federal privacy rights under a law popularly known by its acronym, HIPAA. These rights provide significant protections of personal health information to prevent disclosure when used for purposes other than to treat the patient's health. In judicial proceedings, federal regulations limit disclosure to what is necessary to assure fair proceedings. The ex parte authorization exceeds that narrow exception.

While CCL's legal challenges proceed, the Florida Medical Association has likened the dispute to a boxing match between doctors and trial lawyers, when in reality the dispute pits patients against the medical establishment, which seeks to discourage redress for injuries by exposing non-relevant private information. The FMA characterization of the dispute is available on their website

Peck Leads Panel on Use of State Constitutions at CCJ Annual Meeting

July 31st, 2013

At the Joint Annual Meeting of the Conference of Chief Justices and the Conference of State Court Administrators, CCL President Robert S. Peck spoke and moderated a panel discussion about the use of state constitutions to review the validity of state laws July 30.  Joining him on the panel were Justice Christine Durham of the Utah Supreme Court and Paul Bender, dean emeritus of the law school at Arizona State University. The panelists discussed state constitutions as having an independent protective force for constitutional rights, requiring a full-blown analysis irrespective of any rulings made by the U.S. Supreme Court on similar issues under the U.S. Constitution.  The session was one of the top-rated presentations during the meeting, which took place in Burlington, Vermont. Chief justices from more than 40 states attended.