News

Philadelphia federal court struck a blow this week against intimidation of medical expert witnesses

April 5th, 2013

A Philadelphia federal court struck a blow this week against intimidation of medical expert witnesses, awarding almost $200,000 in a false light claim brought against the American Association of Orthopaedic Surgeons (AAOS). Decision.

The case was reported in BNA’s Health Law Reporter, with extensive commentary from CCL attorney John Vail.  CCL was a pioneer in fighting intimidation of medical expert witnesses by medical professional societies.

In the Philadelphia case, Dr. Stephen Graboff was awarded damages when the AAOS published results of its internal disciplinary proceedings, knowing those proceedings excluded evidence showing Graboff had committed no misconduct.

A decade ago a favorable Seventh Circuit decision encouraged medical societies to create systems for “peer review” of medical expert testimony, systems in which self-interested doctors reviewed expert testimony of doctors who had the temerity to testify on behalf of plaintiffs.  A well-reasoned decision from Florida, Fullerton v. Fla. Med. Ass'n, Assoc., 973 So.2d 1144 (Fla. 1st DCA), Opinion Withdrawn &  Superseded on Denial of Reh’g by 938 So.2d 587 (Fla. 1st DCA 2006), argued by Vail, helped put the brakes on the effort, as did a $350,000 defamation verdict in a Minnesota case Vail co-counseled, Yancey v. Weis (Dist. Ct., 4th Dist. Minn. 2009).

The BNA piece quotes Vail describing the rigors of cross-examination in a medical malpractice trial, the superiority of that method for finding truth, and how extra-judicial review of expert testimony is incompatible with trials.

U.S. Supreme Court Denies Review in ERISA Reimbursement Case

April 1st, 2013

The Supreme Court has denied certiorari in Treasurer, Trustees of Drury v. Goding, ending the long-running effort by an ERISA health plan to impose a duty on a plaintiff’s law firm to reimburse the plan for medical benefits paid to the plaintiff. The plan argued that, after obtaining a settlement from the tortfeasor, the law firm owed a duty to reimburse the plan for medical benefits provided to the plaintiff, rather than remit the proceeds to the firm’s client. The Eighth Circuit rejected such a duty. 692 F.3d 888 (8th Cir. 2012), reh. and reh. en banc denied, Nov. 12, 2012. The Supreme Court denied review on March 25, 2013. CCL's Jeff White represented plaintiff and his law firm.

CCL Lawyer Chairs ABA Asbestos Task Force

March 28th, 2013

CCL President Robert S. Peck presided at the initial meeting of an American Bar Association task force on asbestos litigation and bankruptcy trusts in New Orleans Mar. 27.  The meeting, which took place at Tulane Law School, set up plans for two hearings the task force will hold looking at issues involving the adequacy of compensation for asbestos victims and the interaction of claims made administratively against bankruptcy trusts set up by some defendants to pay injured people and continued litigation against other defendants in the tort system.  The task force scheduled the first hearing for Washington, D.C. on June 5-6.  A fall hearing in Los Angeles will also be held.  Peck chairs the five-member task force. It is expected to issue a report after its hearings.

Supreme Court puts further burdens on class actions that have multiple theories of liability

March 27th, 2013

The Supreme Court today put further burdens on class actions that have multiple theories of liability, holding that when only one of those theories survives the damages model used for certification must separately reflect that theory.  In Comcast v. Behrend, the plaintiffs brought an antitrust class action against the cable giant for acquiring a dominant position in the Philadelphia market by trading other markets for it to its Philadelphia competitors.  The resulting lack of competition, plaintiffs said, increased their cable costs.  CCL, in an amicus brief written by John Vail and filed on behalf of AAJ, Public Justice and AARP, urged the Court not to impose economic burdens that would render class actions impractical.

In ruling against the plaintiffs in this antitrust case, the Court avoided a broader rule that would affect the majority of class actions.  As the four dissenters noted, “The Court’s ruling is good for this day and case only. In the mine run of cases, it remains the ‘black letter rule’ that a class may obtain certification under Rule 23(b)(3)when liability questions common to the class predominate over damages questions unique to class members.”

The case was marked with procedural controversy, the Court having itself re-written the question presented, presumably to ask the question it wanted answered.  At oral argument it became clear that the question had been inaptly drafted.  The dissent noted that they would have ruled that review had been improvidently granted, and decried the unfairness to the plaintiffs of the court reaching a decision on a question that it had not fairly asked the parties to discuss.

The decision can be found at  http://www.supremecourt.gov/opinions/12pdf/11-864_k537.pdf.

CCL Attorney Quoted Extensively in Analysis of Recent Supreme Court Medicaid Ruling

March 26th, 2013

On March 26, U.S. Law Week published a lengthy analysis of Wos v. E.M.A., the recent Supreme Court decision invalidating North Carolina’s Medicaid third-party reimbursement statute as inconsistent with the anti-lien provision of the federal Medicaid Act. Supreme Court Halts North Carolina Attempt to Recoup Medicaid Payouts From Tort Funds, U.S. Law Week (Mar. 26, 2013). The article relies heavily upon, and quotes extensively from, the reporter’s interview with CCL Senior Litigation Counsel Louis M. Bograd, who authored an amicus brief in the Wos case on behalf of the American Association for Justice.

Supreme Court relies on CCL Briefs in Striking Down North Carolina Medicaid Reimbursement Statute

March 25th, 2013

Last week, the United States Supreme Court decided Wos v. E.M.A., and struck down North Carolina’s Medicaid reimbursement statute. In Arkansas Dept. of Health and Human Services v. Ahlborn, 547 U.S. 268 (2006), the Court had held that the anti-lien provision of the federal Medicaid Act limited states to obtaining reimbursement for Medicaid services from that portion of a tort judgment or settlement that represented repayment for medical expenses incurred. North Carolina’s reimbursement statute, N.C. Gen. Stat. Ann. §108A-57, requires that up to one-third of any damages recovered by a beneficiary be paid to the State as reimbursement. In Wos, the state argued that the statute was a valid state rule or procedure for allocating tort settlements under Ahlborn.

In rejecting this argument, the Court twice relied on amicus briefs submitted by CCL on behalf of the American Association for Justice. First, the Court concluded that Ahlborn’s reference to “special rules and procedures” was meant to refer to judicial proceedings for allocating settlements, and proved this proposition by pointing to examples of such procedures cited by AAJ in its Ahlborn amicus, which the Court there cited. The Court also rejected North Carolina’s argument that post-settlement allocation proceedings would be “wasteful, time-consuming and costly,” in part by referencing a similar procedure already employed by North Carolina courts in allocating workers’ compensation settlements. AAJ  had alerted the Court to this procedure in its amicus brief in Wos.

The Wos decision, like Ahlborn, will likely prove critically important in protecting injured Medicaid beneficiaries from excessive reimbursement demands from state Medicaid agencies. The AAJ amicus briefs in both cases were authored by CCL Senior Litigation Counsel Lou Bograd.

Peck Presides at RAND Institute for Civil Justice Board Meeting

March 22nd, 2013

CCL President Robert S. Peck presided in place of current board chair and Jones Day partner Paul M. Pohl at the biannual meeting of the Board of Overseers of the RAND Institute for Civil Justice in Santa Monica, CA May 21-22.  At the meeting, the Board heard presentations on factors affecting automobile insurance, judicial disqualification, the impact of disability benefits on work performance, the use of criminal prosecutions to affect corporate behavior, and issues in compensating gun injuries.  The Board also discussed possible future projects and had a dinner presentation from former California Governor Gray Davis.  Peck is vice chair of the board and succeeds Pohl for a two-year term as chair in the fall.

Maryland's Highest Court Urged to Adopt Dram Shop Liability

March 13th, 2013

A bar that kept serving a drunk patron should be liable for the death of a ten-year-old girl caused when the inebriated patron left the bar and took the wheel of his car and crashed into the dead girl’s family car, CCL lawyer John Vail told Maryland’s highest court yesterday.  In so arguing, Vail asked the court to adopt dram shop liability, something that Maryland law does not currently provide.

The Dogfish Head Ale House served at least twenty drinks to Michael Eaton, cutting him off once but then re-opening his tab, before he left the bar and, three miles away, slammed into a car carrying Jazimen Warr and her family.  Jazimen was killed and the other family members were injured.  Eaton was traveling at least 88 miles per hour in a 55 mph zone and was later imprisoned for vehicular homicide.

Vail acknowledged that twice before, the last time in 1981, the court had refused to impose dram shop liability.  He told the court that developments in decisions in 1992, and again in 2009, had effectively had overruled the prior decisions. 

An active bench peppered Vail with questions regarding how broadly or narrowly liability might be imposed and about its effects on Maryland’s small businesses.  Vail noted that social science reliably could predict that imposing such liability would save 15 to 25 lives per year in Maryland.

The case is Warr v. JMGM, LLC.  A decision is expected by July.

Coverage by the Maryland Daily Record can be found here.

CCL Wins Important Preemption Victory Before 6th Circuit

March 13th, 2013

In an important preemption case, Fulgenzi v. Pliva, Inc., the 6th Circuit unanimously ruled today that a generic drug manufacturer may be sued under state law where it failed to provide all of the warnings approved by the FDA for the equivalent brand-name drug.

The court rejected the argument that plaintiff’s claim was preempted on grounds of impossibility under the U.S. Supreme Court’s 2011 ruling in Pliva, Inc. v. Mensing, stating: “not only could PLIVA have independently updated its labeling to match that of the branded manufacturer through the CBE process, but it had a federal duty to do so. As a result, compliance with federal and state duties was not just possible; it was required. Impossibility preemption is inappropriate in such a case.”

The court also rejected defendant’s argument that Ms. Fulgenzi’s claim was preempted under Buckman v. Plaintiffs Legal Comm. (2001), as an attempt to privately enforce federal law: “Here, Fulgenzi’s suit is not even premised on violation of federal law, but rather on an independent state duty. The alleged breach arises from the same act, but the legal basis is different. This is simply not grounds for preemption.”

The Fulgenzi decision represents a significant limitation on the reach of the Supreme Court’s generic drug preemption ruling in Mensing. The decision takes on added significance in light of a recent study which found that more than 2/3 of generic drug labels lack warnings found on the labels of the equivalent branded drugs. Consistency in the safety labeling of bioequivalent medications, Pharmacoepidemiology and Drug Safety (2012).

The appeal in Fulgenzi was briefed and argued by CCL Senior Litigation Counsel Louis Bograd.  Find news coverage here.

Peck Addresses Law Students

March 12th, 2013

On March 12, CCL President Robert S. Peck addressed law students at George Washington University about issues affecting the practice of tort law today, as part of a panel sponsored by that school’s student chapter of the American Bar Association’s Tort Trial and Insurance Practice Section.  Peck spoke from the perspective of an appellate lawyer, who sees the obstacles placed before plaintiffs seeking compensation for wrongful injuries and often challenges the constitutionality of those impediments.  He noted that recent U.S. Supreme Court decisions, particularly in the areas of arbitration and treatment of class actions, have made an already steep climb even more acute.  Others on the panel addressed similar issues from the perspectives of insurance and defense counsel, as well as that of an arbitrator.