News

CCL filed an amicus curiae brief on behalf of AAJ today urging the U.S. Supreme Court to review a Virginia Supreme Court decision denying recovery under the Longshore and Harborworkers Compensation Act. Minton v. Exxon Mobil Corp., Docket No. 12-1319. 

Minton, a shipyard repair supervisor, was stricken by mesothelioma caused by exposure to asbestos dust on Exxon oil tankers. The Virginia court overturned the jury's verdict, holding that the vessel owner has no duty under LHWCA to protect a worker from danger if the employer had the knowledge and ability to do so. The AAJ amicus brief, authored by CCL Senior Counsel Jeffrey White, argued that controlling Supreme Court precedent requires the owner to intervene where it knows of the danger aboard its vessel and knows that the employer is taking no precautions to protect its own workers. 

Yesterday, in Goldenberg v. Woodard, Nos. 57232, 58151, the Nevada Supreme Court, sitting en banc, heard oral argument in an appeal from a jury verdict awarding an injured plaintiff Georgia Woodard compensatory damages for the injuries she sustained as a result of fraud and professional medical negligence.

CCL’s Andre M. Mura participated in oral argument on behalf of the injured plaintiff, arguing that Nevada law limiting non-economic damages in professional negligence cases did not apply to limit the damages awarded in this case, but that if the law limiting damages applies here, the Court should rule that it is unconstitutional. Nevada lawyer Peter Durney, who successfully tried the case in the district court, also participated in oral argument. He argued that the jury’s verdict on negligence and fraud was amply supported by the evidence introduced at trial. Audio of the oral argument is available on the Court’s website.

In its May 2013 issue, Trial Magazine has published an article written by CCL’s Andre M. Mura entitled “Damages Caps and Inviolate Rights.” The article looks closely at state Supreme Court decisions considering whether damages caps violate the “inviolate” right of trial by jury, including recent decisions by the Missouri and Kansas Supreme Courts, which reached opposite conclusions.

The Consumer Financial Protection Bureau (CFPB) should ban mandatory arbitration in consumer contracts, CCL attorney John Vail told lawyers from state attorney general offices at a symposium at the George Mason University law school.

 “A mandatory arbitration agreement with a class action ban is not a get out of jail free card; it’s a slip $500 to the parole board and get out of jail card,” Vail told the assembled audience, explaining that the clauses have the purpose and effect of suppressing claims.

Mandatory arbitration also undermines democratic values, Vail asserted.  “We are fifty states and one federated nation, each of which made the conscious choice to vest this kind of decision-making in citizen-jurors.  Mandatory arbitration transfers that power to a group of salaried elites.”

Vail emphasized that the CFPB should not hesitate to exercise the power Congress gave it to ban mandatory arbitration clauses in consumer contracts, as “Congress never intended that the Federal Arbitration Act apply to consumer contracts at all.”

The symposium brought together academics and practitioners to discuss how the CFPB might use its powers to alter the balance of power between consumers and businesses.  It was sponsored by the law and economics program at GMU.

The joint Spring Meeting of the ABA’s Judicial Division and Tort, Trial and Insurance Practice Section in Washington, D.C. featured CCL President Robert S. Peck in continuing legal education sessions on Supreme Court practice and on appellate issues.

Peck moderated a conversation about Supreme Court practice with former Solicitor General Paul Clement, former acting Solicitor General Neal Katyal, and Assistant Attorney General Beth Brinkman.  Including Peck, the four Supreme Court practitioners represent more than 100 oral arguments before the Court.  The panelists discussed differences in practicing before the Supreme Court at each stage of the process from other appellate courts. The Supreme Court session took place April 25.

The following day, Peck was a panelist on issues between trial and appellate courts.  In addition to Peck, other panelists included Chief Judge Eric Washington of the District of Columbia Court of Appeals, U.S. Magistrate Judge Jeffrey Cole of the Northern District of Illinois, retired Maryland Judge William D. Missouri, and lawyer Denise Dimascio.  The panel discussed preservation of issues and other issues that come up during an appeal.

An amicus brief filed on April 22 by CCL Senior Counsel Jeffrey White argues against reviewing punitive damage awards for gross negligence differently from awards based on willful or wanton misconduct. Aleo v. Toys R Us involves a fatal head injury to a young mother sliding down an inflatable swimming pool slide sold by Toys R Us.  A Massachusetts jury found the company grossly negligent in failing to ensure compliance with CPSC standards for such slides, awarding $2,640,000 in compensatory and $18 million in punitive damages.  Toys R Us argued on appeal that, because gross negligence is the least reprehensible type of misconduct for which punitives might be awarded, any amount in excess of a 1-to-1 ratio to compensatory damages is unconstitutionally excessive. The Massachusetts Supreme Judicial Court invited amicus participation on the question whether gross negligence awards should be reviewed under a different standard.

CCL filed a brief on behalf of AAJ and the Massachusetts Academy of Trial Attorneys, arguing against a bright-line limit on punitive damages of any category. Instead, allowing a well-instructed jury to assess reprehensibility based on the facts of the particular case carries out the state interest in punishing and deterring misconduct in a manner that is fundamentally fair to defendants.  

CCL President Robert S. Peck told court administrators meeting in Salem, Massachusetts that the law on providing language access in courtrooms under Title VI of the Civil Rights Act and various constitutional provisions remains a work in progress.  Peck spoke on the first day of the four-day First Annual Conference of the Council of Language Access Coordinators, providing an overview of the relevant law and court decisions to guide them in implementation of their responsibilities.  While the requirement of providing court interpreters in criminal cases is well-established as a function of due process and the Confrontation Clause of the Sixth Amendment, an abuse of discretion standard generally governs in civil litigation, Peck said.

Despite demonstrating little support for consumer interests in frequent pronouncements on mandatory arbitration, the Supreme Court denied review of a nursing home wrongful death case, preserving the day in court for the aggrieved family.  CCL lawyer John Vail was counsel for the successful plaintiff.  Court watchers had identified the case as one the Court might take and reverse.

In the case the Kentucky Supreme Court had decided that the decedent’s signature on an arbitration agreement could not bind the persons damaged by the decedent’s death because they press their own claims, not the claim of the person who was killed.

“The Kentucky court said, in effect:  you have to own the Brooklyn Bridge before you can pass title to someone else,” Vail said.

The Kentucky court also had ruled that a power of attorney which granted authority to do things “necessary” for another person did not grant authority to sign an arbitration agreement that was not required as a condition of admission to a nursing home. 

The nursing home argued that the Kentucky court had discriminated against arbitration and had created obstacles to fulfilling the purposes of the Federal Arbitration Act.

The Supreme Court had summarily reversed three state arbitration decisions in the last eighteen months, a result that the nursing home sought here and that court watchers expected could be achieved

The case is Beverly Enterprises v. Ping, No. 12-652.  Steve O’Brien of Lexington, Kentucky, was counsel in the Kentucky courts.  The case will return to the Kentucky courts to move toward trial by jury.

CCL Attorney John Vail urged against a “paradigm shift” narrowing access to justice at a meeting last week of the committee that makes rules of procedure for federal courts.  

​The federal civil rules advisory committee, meeting in Norman, Oklahoma, voted to propose radical changes to the rules of discovery, rules that were originally intended to simplify access to courts.  

​The committee acknowledged that discovery works smoothly and is not costly in about 70% of cases, but said it is concerned that in cases involving large corporations discovery can become disproportionately expensive.

​“You don’t write general rules to address a specific case,” Vail told the committee, noting that more than two hundred plaintiffs’ lawyers had told the committee that in civil rights and other cases involving human plaintiffs the system is not broken.  

​Vail decried a proposal that persons requesting information – generally plaintiffs – be required to show that their requests are “proportional” before they can be granted.  “There is, currently, no proportionality standard in the rules,” he said.  “There is a disproportionality standard:  if someone believes that a request is disproportional, they can prove that to the court. “  

​Under the proposal, “all they have to do is object, and the other side has, somehow, to prove proportionality,” Vail noted.

​“Proportionality will become the new ‘burdensome’,” Vail noted, invoking an objection that is programmed into word processors and most often is overlooked as not seriously made, “with the difference being that under the new regime someone can just object and make the other party do all the work.”  

​Vail urged the committee to define the problem it hopes to solve with its proposals.  “That will allow persons who provide public comment to tell you whether that problem exists or is important.”

​The federal rules of civil procedure were put into place in 1938 with the purpose of precluding procedure from acting as a barrier to justice.  Many scholars contend that the Supreme Court and the committee that makes the rules have been construing the rules in ways that make access to justice more difficult.

​The draft rules the advisory committee approved last week will be sent to the committee on practice and procedure, which is expected to approve them at its June meeting.  The proposals are expected to be formally submitted for public comment for six months beginning August 15^th.  The advisory committee is expected to hold three hearings during the public comment period, with one scheduled for Washington, DC, November 7^th.  The others are expected to be held on the west coast and in the center of the country in late November and early January.

​A chart summarizing the proposed changes can be found here.  CCL’s initial comments on the proposals can be found here.

In an amicus brief filed this week in the Missouri Court of Appeals, CCL Senior Counsel Jeffrey White argued that an employer is not entitled to withhold taxes from a judgment awarded under the Federal Employee Labor Act.  The issue arose after a jury awarded Lawrence Mickey nearly $400,000 against BNSF Railway under FELA for a permanently disabling injury to his back and knees. The employer railroad tendered payment after withholding Railroad Retirement and Medicare taxes. The trial court declined to credit BNSF for payment of the full judgment.

In the Missouri Court of Appeals, the railroad, with amicus support from the IRS, contends that, although the injury payments are excluded from “income” for federal income tax purposes, they are “wages” and “compensation” for purposes of federal employment taxes, including Medicare and Railroad Retirement taxes.  This appears to be an unprecedented change in the IRS position on the taxability of personal injury awards, which could chill the pursuit of some FELA actions and make settlement more difficult. CCL's brief was filed on behalf of the American Association for Justice in the Missouri Court of Appeals on April 9.