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In two cases, argued by CCL’s John Vail, Maryland’s highest court, the Court of Appeals, refused to exercise its authority over the common law to adopt antiquated doctrines to modern times.  In Coleman v. Soccer Association of Columbia, the court retained contributory negligence as a complete bar to a plaintiff’s recovery, even if the injured person was only the smallest bit at fault and the defendant was the principal cause of the injury.  Only five jurisdictions retain the rule.  Instead, the court said that the legislature would need to make the change.

Justice Glenn T. Harrell, Jr., in dissent, poignantly chided the majority:

"Paleontologists and geologists inform us that Earth’s Cretaceous period (including in what is present day Maryland) ended approximately 65 million years ago with an asteroid striking Earth (the Cretaceous-Paleogene Extinction Event), wiping-out, in a relatively short period of geologic time, most plant and animal species, including dinosaurs. As to the last premise, they are wrong. A dinosaur roams yet the landscape of Maryland (and Virginia, Alabama, North Carolina and the District of Columbia), feeding on the claims of persons injured by the negligence of another, but who contributed proximately in some way to the occasion of his or her injuries, however slight their culpability. The name of that dinosaur is the doctrine of contributory negligence."

In the second case, Warr v. JMGM Group, the court declined to hold liable a bar, which had served 17 bottles of beer, 3 drinks of hard liquor and at least one other drink to a person who then refused a cab and instead hopped into his car and soon collided with a passenger vehicle, resulting in the death of a ten-year-old girl. The driver was subsequently convicted of homicide. The court held that the bar owed no duty to the child to protect her from the driver and that, in any case, whether such responsibility should be imposed was for the legislature, not the court, to decide.  A dissenting opinion extrapolated from social science research that imposing liability on bars, something known as dram shop liability, would reduce drunk driving deaths by 6.4%, which, in Maryland, would save 14 people per year from deaths due to drunk driving.

Both Coleman and Warr provide examples of a court, vested with authority to manage the common law and adapt it to the times, ceding its authority to the legislature. Where legislative stalemate is all too common and the law must adopt to changed circumstances and the lessons of experience, judicial deference of the sort envisioned by these cases does not serve the cause of justice.

TRIAL magazine has published an article by CCL President Robert S. Peck, offering strategies that trial lawyers should employ to preserve their victories on appeal or overturn an adverse result, in its July 2013 issue.  In Looking Down the Appellate Road,* Peck discusses the importance of such crucial questions as contemporaneous objections, record preservation, proffering excluded evidence and conforming to procedural complexities, along with a handy list of practical considerations.  Trial counsel will always be concerned with staying on the good side of the trial judge by not being too aggressive in objecting to rulings, Peck writes, but the failure to preserve the issue for appeal requires an objection on the record. “The seeds of success on appeal,” Peck states, “often grow from those planted before trial.” He advises that in cases involving high stakes or complicated trial procedure lawyers are well-advised to plan for trial, but anticipate an appeal, where the ultimate determination of the case’s success or failure is likely to be made. 

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On July 1, CCL participated in the filing of five constitutional challenges in state and federal court, alleging that a new Florida law, effective that day, violates the privacy rights of people considering bringing medical-malpractice claims by requiring that they execute a release, at least 90 days before they plan to file suit, permitting the defendant doctor, defendant’s lawyer, defendant’s insurer, and defendant’s expert witnesses and their lawyers, access to the plaintiff’s private health information held or known by all who treated the plaintiff during the previous two years. The mandatory release also authorizes the defendant and the defendant’s team to engage in private interviews with treating health care providers, also known as ex parte communications, without notice or an opportunity to object during the presuit period.

"The law opens the door to a fishing expedition into the past of anyone with the temerity to consider filing a medical-malpractice claim,” said CCL President Robert S. Peck, co-counsel in two of the three federal lawsuits and architect of the challenges. “The courts must intervene because privacy, once lost, can never be recovered.”

The federal cases assert that the Florida law violates federal privacy rights established in the Health Insurance Portability and Accountability Act of 1996 (HIPAA). HIPAA preempts state law and requires health-care providers keep private health information confidential and may only release it, in the context of a lawsuit, pursuant to a court order, subpoena, or the discovery process that exists under judicial rules.  Although a plaintiff can consent to release, any consenting authorization must comply with federal rules indicating precisely who may access the information and the extent of the information authorized for release. The form required by the Florida statute does not conform to HIPAA’s requirements. In a similar challenge to a release form, the Georgia Supreme Court found the form violated HIPAA.

One federal case, Doe v. Dulay, was filed in the U.S. District Court for the Northern District of Florida. The plaintiff filed under a pseudonym to protect his privacy. He states that he fears that embarrassing information concerning his past health issues, unrelated to the medical-malpractice claims he now wants to pursue, will be revealed in violation of his federal privacy rights. Two other cases were filed in the Southern District of Florida, Lee v. Bethesda Hospital and Doe v. Palm Beach OBGYN.

The state cases, Hintz v. Salamon and Weaver v. Myers, also make the HIPAA preemption argument.  In addition, they assert that the new law violates various provisions of the Florida Constitution. As a matter of separation of powers, the Florida Constitution assigns exclusive authority to formulate rules of procedure to the state Supreme Court. That court has developed a rule governing presuit disclosures that is in conflict with the new law, rendering it an arrogation of judicial power by the state legislature. In addition the Florida Constitution guarantees a right of privacy and access to the courts, provisions violated by the new statute. Finally, the Florida Constitution bars special laws relating to rules of evidence that amount to favoritism for a particular group.  The new law violates that prohibition by creating a special evidentiary privilege for medical-malpractice defendants.

Coverage of the lawsuits’ filing is available at http://www.palmbeachpost.com/news/news/state-regional-govt-politics/west-palm-beach-woman-sues-to-stop-part-of-new-sta/nYbNf/; http://www.bloomberg.com/news/2013-07-01/florida-attorneys-challenge-medical-malpractice-law.html; http://miamiherald.typepad.com/nakedpolitics/2013/07/lawyers-file-lawsuits-challenging-change-in-medmal-law-that-takes-effect-today.html; http://miamiherald.typepad.com/nakedpolitics/2013/07/lawyers-file-lawsuits-challenging-change-in-medmal-law-that-takes-effect-today.html; and http://www.bizjournals.com/jacksonville/blog/morning-edition/2013/07/floridas-new-medical-malpractice-law.html.

Yesterday, the Wake County Superior Court heard argument on the constitutionality of North Carolina’s recently enacted cap on noneconomic damages in medical malpractice cases. In Kyle v. Kamm, McKenzie, Harden, Smith, Bass, Martson & Saacks, P.L.L.C., et al., the plaintiffs, Janice and Albert Kyle, alleged that the defendants’ negligence injured them in 2009 and 2010. In June 2011, the North Carolina General Assembly passed, over the veto of Governor Beverly Perdue, a cap on noneconomic damages in medical malpractice cases.

By the terms of the law, it applies to all actions filed on or after October 1, 2011, regardless of when the negligence occurred or when the claims accrued. The plaintiffs filed their medical negligence action within the statute of limitations for their claims, but after the effective date of the new law. In their complaint, the plaintiffs included a claim under North Carolina’s Declaratory Judgment Act seeking a declaration that the cap on damages is unconstitutional. Plaintiffs moved for judgment on the pleadings on their declaratory count on the grounds that the law is unconstitutionally retroactive as applied to them. CCL’s Valerie M. Nannery and North Carolina attorney Adam Stein participated in the hearing on behalf of the plaintiffs, arguing that the cap on damages cannot be applied to the plaintiffs’ causes of action that accrued before the effective date of the law because such a retroactive application of the law would impair the plaintiffs’ vested rights in violation of the North Carolina Constitution. 

In Home Star Bank & Financial Services v. Murphy, a salaried emergency room doctor who responded to a Code Blue in the hospital, asserted that he was immune from suit for medical malpractice under Illinois’s Good Samaritan Act. The trial court granted him immunity, but the appellate court reversed, holding that the doctor was not immune under the Act because he received a salary for his services, and thus did not provide emergency care “without fee,” as the Act requires. The Illinois Supreme Court granted the doctor’s motion for leave to appeal, in which he argues that the Act should apply to this case because the patient was not billed for the doctor’s services.

CCL filed an amicus curiae brief for the American Association for Justice (AAJ) in this case. The brief, written by CCL’s Valerie M. Nannery, and filed in support of the plaintiffs, provides the court a national perspective on Good Samaritan immunity laws and the purpose of the laws. The purpose of the Good Samaritan immunity is to encourage volunteer physicians to provide emergency care even when they have no duty to act. Illinois is an outlier in the United States because the courts do not inquire into whether the doctor who provided emergency care had a duty to do so before they determine whether the Good Samaritan Act applies. AAJ’s brief expresses the concern that granting immunity to a doctor who had a duty to act merely because he does not bill the patient for the emergency care would set a precedent that would spread to other jurisdictions with statutes similar to Illinois’s. The brief encourages the Illinois Supreme Court to hold that doctors who have a duty to provide emergency care cannot be shielded from liability by the Good Samaritan Act, and that doctors cannot escape liability for negligent emergency care by simply not billing the patient.

In a decision one justice called a “betrayal of our precedents,” the Supreme Court today ruled that corporations can use arbitration clauses to insulate themselves from liability.  

The decision culminates a thirty-year judicial effort by the Court to turn an innocuous 1920s statute, the Federal Arbitration Act, into a weapon used to thwart enforcement of rights by consumers, employees, and small businesses. 

In American Express v. Italian Colors Restaurant, http://www.supremecourt.gov/opinions/12pdf/12-133_19m1.pdf, a restaurant filed a class action complaining that American Express had used monopoly power to force merchants to accept credit cards at rates approximately 30% higher than the fees for competing credit cards, in violation of antitrust statutes.  American Express moved to compel arbitration based on a clause in its agreement with the restaurant that provided, in part, “[t]here shall be no right or authority for any Claims to be arbitrated on a class action basis.”

The restaurant, invoking a line of Supreme Court cases that held open the possibility that courts could invalidate arbitration clauses that effectively precluded vindication of federal statutory rights, opposed arbitration.  It demonstrated that costs of litigating an individual claim were “’at least several hundred thousand dol­lars, and might exceed $1 million,’ while the maximum recovery for an individual plaintiff would be $12,850, or $38,549 when trebled,” and argued that preclusion class resolution effectively precluded it from vindicating its claim. 

The Second Circuit agreed with the restaurant, having held that “the only economically feasible means for . . . enforcing [respondents’] statutory rights is via a class action.” The Supreme Court reversed.

The Court, with Justice Scalia writing for a five-person majority, first found nothing specific in the antitrust laws  - no “congressional command “ - requiring the Court  to reject the waiver of class arbitration: “The antitrust laws do not ‘evinc[e] an intention to pre­clude a waiver’ of class-action procedure.”

The Court also found no “entitlement to class proceedings for the vindication of statutory rights” flowing from congressional approval of Rule 23, noting that in AT&T Mobility v. Concepcion it already had rejected the argument that “federal law secures a nonwaivable opportunity to vindicate federal policies by satisfying the procedural strictures of Rule 23 or invoking some other informal class mechanism in arbitration.”

Turning to doctrine that seemingly permitted ignoring a class action ban the Court noted, “It would certainly cover a provision in an arbitration agreement forbidding the assertion of certain statutory rights. And it would perhaps cover filing and administrative fees attached to arbitration that are so high as to make access to the forum impracticable.”  But, the Court continued, “the fact that it is not worth the expense involved in proving a statutory remedy does not constitute the elimination of the right to pursue that remedy.”

Justice Kagan, writing in dissent and joined by Justices Ginsberg and Breyer (Justice Sotomayor took no part in the case), called the majority decision “a betrayal of our precedents, and of federal statutes like the antitrust laws.” 

She found that the arbitration clause in question “imposes a variety of procedural bars that would make pursuit of the antitrust claim a fool’s errand. So if the arbitration clause is enforceable, Amex has insulated itself from antitrust liability—even if it has in fact violated the law.”

She noted that, under the majority decision, “The monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse.”

CCL’s John Vail participated in the filing of an amicus curiae brief in the case on behalf of Public Justice, AARP, and the American Association for Justice.  Today’s decision effectively leaves only Congress to provide recourse.

A nursing home that allegedly killed one of its residents will have to defend itself in court, and not before a secret arbitral panel, the New Mexico Court of Appeals ruled today, adopting arguments made by CCL.

“This is another good decision saying that nursing homes cannot bury their dead in private,” said CCL attorney John Vail, counsel for plaintiffs in the case.

While numerous issues were before the Court, it focused on one narrow one:  whether the unavailability of the discredited National Arbitration Forum (NAF) rendered the arbitration agreement unenforceable. 

The agreement in question did not designate NAF as the arbitrator, but 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 already had 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. 

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

The federal judiciary last week proposed fundamentally altering the rules that have governed discovery and evidence preservation in litigation since 1938, radically constraining the ability to ferret out corporate and governmental wrongdoing in litigation. CCL has monitored and attended the meetings and conferences where judicial committees have discussed these issues.

At last week's meeting, the Judicial Conference's Committee on Practice and Procedure (the standing committee) approved for public comment proposed amendments to the federal rules of civil procedure that would constrain the scope of discovery and limit the duties of corporations to preserve evidence.

“The rulemakers themselves describe these changes as radical," said CCL attorney John Vail, who attended the meeting. “Despite acknowledging that in the vast majority of cases discovery is working well, they propose changes that are tailored to a small fraction of cases without regard to the burdens placed on average people."

The rules would:

• Limit the scope of discovery, eliminating language that made clear that a plaintiff had a right to get information that could lead to evidence admissible at trial even if the information itself were not admissible;
• Require a plaintiff to prove that requested information is “proportional” to the needs of a case;
• Reduce the number of depositions and written requests for discovery that a plaintiff presumptively is entitled to employ;
• Emphasize the ability of courts to impose on plaintiffs the costs of responding to information requests; and, 
• Limit the duties of corporations to preserve evidence.

The new rules focus on litigation between large corporate entities as if those cases are typical of federal litigation. "In a very real way,” Vail continued, “these proposals say that there are entities too big to be sued.”  Experience shows that what is adopted at the federal level often filters down to the states and become embedded in state rules of civil procedure.

The proposals are expected to be published August 15^th for public comment. the committees would then accept written comments through February 15, 2014.  One public hearing on the proposal has been scheduled for November 7^th in Washington.  Two additional hearings are expected to be announced.

CCL’s Robert Peck chaired two days of American Bar Association hearings on asbestos litigation June 5 and 6 in Washington, D.C. The Task Force on Asbestos Litigation and Bankruptcy, chaired by Peck, heard from academic witnesses, economists, proponents and opponents of legislative changes, and attorneys from both sides of the litigation.  Asbestos litigation is considered the longest-running mass tort in history.  Originally considered a “miracle material” because of its durability and flame-retardant qualities, inhalation of asbestos fibers causes serious illnesses and death after a long latency period.  The five-member task force is charged with examining issues in the litigation and the relationship between claims made against bankruptcy trusts and tort claims made against solvent defendants.  The task force plans to hold a second set of hearings in Los Angeles in October.

The American Tort Reform Association (ATRA) filed a petition in the U.S. Court of Appeals for the D.C. Circuit challenging the Occupational Safety and Health Agency’s (OSHA’s) edits to preemption language in the Hazard Communication Standard. The federal Standard establishes minimum labeling requirements for hazardous chemicals. ATRA argues that the preemption language in effect prior to these edits in 2012 suggested that the federal Standard preempted common-law duties and liabilities, such as for failure to warn.  OSHA’s edits, according to ATRA, foreclose preemption. These changes, ATRA maintains, were made without notice or opportunity for comment, and thus are ultra vires.

CCL has now filed an amicus curiae brief for the American Association for Justice (AAJ) in this case. The brief, written by CCL’s Andre M. Mura, and filed in support of OSHA, expresses 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 brief takes issue with ATRA’s preemption arguments, contending instead that the federal Standard has never been understood to preempt common-law duties and liabilities. The brief further argues, not only did OSHA not intend to preempt common-law duties in this federal Standard, it has no authority to do so, because Congress, in enacting the OSH Act, never authorized preemption of common-law duties on the scale imagined by ATRA.