News

On December 11, 2014, CCL filed a brief arguing that a trial court erred in excluding expert evidence on the effect of gasoline fumes in causing neurological defects in a child born with severe neurological problems. The case, Sean R. v. BMW of North America LLC, pending in the New York Court of Appeals, will determine the level of reliability an expert must meet to satisfy the Frye test, which requires expert scientific evidence to use methodologies that are generally acceptable within the relevant expert community. CCL’s brief was filed on behalf of amicus curiae American Association for Justice.

The issue arose because the plaintiff family purchased a new 1989 BMW, but emitted a strong odor of gasoline inside the car. Plaintiff Debra Reeps drove the car throughout the first trimester of her pregnancy. Subsequently, the BMW dealer identified a defective hose as the source of the gasoline fumes. Sean Reeps was later born with severe birth defects, including brain damage. Plaintiff brought this product liability action against the manufacturer, alleging that Sean’s exposure in utero to gasoline fumes was the cause of his injuries.

The trial court granted defendant’s motion for summary judgment. The court held that the testimony of plaintiff’s experts that in utero exposure to gasoline vapors or that of its components can cause birth defects (general causation) is not admissible in the absence of epidemiological studies demonstrating such an association. In addition, plaintiff was required to show that gasoline vapors, not simply the vapors of gasoline components, such as toluene or benzene, may cause birth defects. Moreover, the court ruled, plaintiff was obliged to show an association between gasoline exposure and the specific neurological defects suffered by Sean. The court also held that plaintiff’s expert testimony quantifying Debra’s exposure (specific causation), based on “odor threshold methodology,” was insufficient because the expert’s numbers “just don’t add up.” The appellate division affirmed in a short opinion.

AAJ’s amicus brief to the Court of Appeals, authored by CCL Senior Counsel Jeffrey R. White, contended that these overly stringent requirements were not consistent with the weight of authority across the country and did not comport with the practice of scientists. The brief emphasized that the types of causation evidence plaintiff offered were noted with approval in the Federal Judicial Center’s Reference Manual on Scientific Evidence. The court also erred in excluding plaintiff’s experts by focusing on the experts’ conclusion, rather than inquiring into the general acceptance of their methodology, as Frye jurisdictions require. As a result, plaintiff was deprived of his constitutional right to present the merits of his case to a jury.

The Indiana Court of Appeals heard argument on why the state’s claim of immunity from suit denies Jordyn Polet her right to seek compensation for injuries sustained when the stage collapsed at the 2011 Indiana State Fair. Polet, 11 years old at the time of the incident, attended the state fair with her family and a family friend, to see the country duo Sugarland on stage, when a sudden wind caused the overhead rigging and lighting system to collapse on the crowd gathered in the pit. Seven people were killed, including the Polets’ friend, and another 58 were injured in the tragedy. The State settled with nearly all who were injured in the event, offering a percentage of their claimed medical expenses as of several months after the event. The limited offer attempted to stay within a per-occurrence limit of $5 million in the state tort claims act. The act also limits individual claims to $700,000 each.

Jordyn Polet turned down an offer of $1690, choosing to continue with her filed lawsuit as the meager offer did not come close to covering her total damages. Subsequently, the Indiana Legislature appropriated an additional $6 million to be distributed among those who had settled their lawsuits, thereby excluding Polet. The State then claimed immunity from suit against Polet because it had expended the full $5 million authorized by the tort claims act. Polet attacked the constitutionality of the state’s claim of immunity as violative of the Open Courts and Equal Privileges guarantees of the Indiana Constitution. A state trial court ruled against her, and she appealed.

Represented by CCL President Robert S. Peck, Polet argued that the tort claims act was an unequivocal waiver of immunity and that she had a valid, accrued cause of action that Indiana could not divest by how it settled others’ claims. The Open Courts provision permitted her to take her claim to court under the act, and the Equal Privileges provision meant that she had to be eligible to seek damages up to $700,000, just as she would have if she alone had been injured.  The aggregate cap, Peck told the court, treated her less fairly and less equally, than other tort claimants sued by the state merely because of the number of other people who had been injured. Arguing for the state, Indiana Solicitor General Thomas Fisher claimed that Polet was treated the same as the other claimants injured at the fair because she too had been offered a settlement. Peck argued that an offered settlement is not what the tort claims act guarantees and that a proper comparison considered Polet’s rights against others who might make claims against the state from a different incident. The court took the matter under advisement.

On December 11, CCL President Robert S. Peck spoke about U.S. Supreme Court practice as the featured speaker for the Delaware ABOTA meeting, whose president, Joseph Weik is a Governor for the American Association for Justice. Peck talked about the peculiarities of practicing before the U.S. Supreme Court and the unusual turns that oral argument can take. Among the examples he used were his own experiences in arguing Jinks v. Richland County (2003) and his two arguments in Philip Morris USA v. Williams (2007 & 2009), in which the Supreme Court sustained a punitive damage award that was 97 times larger than the compensatory damages awarded by the jury.

CCL President Robert S. Peck spoke at the opening of the South Carolina Association for Justice’s annual Auto Torts Seminar Dec. 5 in Atlanta, describing the efforts that CCL has made in fighting damage caps in the courts, making sense of the U.S. Supreme Court’s jurisprudence on preemption to permit plaintiffs to bring their cases, and dealing with a variety of other obstacles to access to justice. The well-attended seminar, often called "the best seminar in the region, if not the country," by trial lawyers from across the South, provided CCL with an opportunity to showcase its most recent victories in the courts, as well as some of the issues currently on its docket.  In the course of his remarks, Peck talked about CCL’s wins in the Florida Supreme Court in Estate of McCall v. United States, which struck down the state’s aggregate damage cap in medical malpractice cases, as well as Fulgenzi v. PLIVA in the Sixth Circuit and In re: Reglan Litigation in the Appellate Division of the New Jersey Superior Court, both of which held that failure-to-warn claims against generic drug manufacturers were not preempted by federal law when the manufacturer has failed to update its label to encompass the warnings appearing on the name-brand version of the drug.

On Dec. 8, the Supreme Court unanimously held that evidence of juror statements in the jury room cannot be used to impeach the validity of the jury’s verdict. CCL had filed an amicus curiae brief in the case on behalf of the American Association for Justice, urging precisely that result.

In Warger v. Shauers, No. 13-517, a vehicle accident case that resulted in a verdict for the defense, the plaintiff moved for a new trial, asserting that the jury foreperson had falsely stated during voir dire that she would base her verdict solely on the evidence. Plaintiff sought to introduce the affidavit of another juror that the foreperson indicated during deliberations that she could not find the defendant liable based on her daughter’s experience in an automobile accident. The district court denied the motion and the Eighth Circuit affirmed, holding that the affidavit was inadmissible under Fed. R. Evid. 606(b), which forbids the use of juror testimony to impeach the jury’s verdict. The Supreme Court granted certiorari.

The AAJ amicus brief,  authored by CCL Senior Counsel Jeffrey R. White, argued that both the Rule’s text and strong policy reasons counsel against expanding judicial inquiry into the jury’s deliberations. Rule 606(b), like the common-law rule it incorporates, fosters open discussion in the jury room. Following the verdict, the Rule protects jurors from harassment by disappointed litigants and prevents the courts from being drawn into an unending cycle of undoing verdicts by placing jurors on trial.

The Court’s opinion, written by Justice Sotomayor, agreed and held the proffered affidavit, describing the discussion in the jury room, was barred by Rule 606(b). Although framed as an inquiry into a juror’s dishonesty during voir dire, the Court found plaintiff’s motion for a new trial motion was clearly “an inquiry into the validity of [the] verdict” prohibited by the Rule. The juror’s statements did not come within exceptions for juror testimony regarding “extraneous prejudicial information” or “outside influences,” but involved inquiry into internal jury deliberations that Congress intended to prohibit. Additionally, although the “Constitution guarantees both criminal and civil litigants a right to an impartial jury,” litigants and courts have other means to address juror bias or dishonesty, the Court stated.

On December 10th, CCL filed an amicus curiae brief on behalf of the American Association for Justice (AAJ) supporting a federal district court judge’s authority to sanction lawyers for improper tactics and behavior. The brief, filed in the United States Court of Appeals for the Eighth Circuit, urged the appellate court to affirm Judge Mark W. Bennett’s opinion and order on sanctions based on Civil Rule 30(d)(2) and a judge’s inherent authority. 

Judge Bennett, who serves as a district court judge in the Northern District of Iowa, entered sanctions sua sponte against a defense attorney earlier this year for coaching witnesses in two depositions she defended, and for making excessive and unnecessary objections and interruptions during those depositions. Judge Bennett’s opinion also served as a warning to attorneys that unspecified “form” objections are improper.

The defense attorney and her law firm appealed the decision to the Eighth Circuit, but have no adversary in that court defending the judge’s actions. Because the sanctions were issued sua sponte, and not on the motion of opposing counsel, the plaintiff and its counsel did not argue for sanctions in the district court and did not file a brief in the court of appeals. The United States has not intervened to represent the real parties in interest—the United States District Court for the Northern District of Iowa and Judge Bennett—and Judge Bennett is not a party to the appeal.

Senior Litigation Counsel Valerie M. Nannery wrote AAJ’s amicus brief in support of affirmance, specifically urging the court to apply an abuse of discretion standard of review, and to disregard asserted facts that were unrelated to the sanctions in issue. AAJ’s amicus brief also argued that the lower court complied with due process requirements, and that the district court’s order was within its jurisdictional authority.

On November 12, 2014, CCL filed an amicus curiae brief for AAJ in a pair of Federal Tort Claims Act cases in the Supreme Court of the United States. AAJ’s brief, prepared by CCL Senior Counsel Jeffrey R. White, urges the Court to hold that federal courts may suspend the statutory time limits where equity requires.

The FTCA waives sovereign immunity for harm caused by the negligence of federal employees. However, the claimant must file an administrative claim with the agency involved within two years after the cause of action has accrued. Additionally, the claimant must file suit within 6 months after the agency’s denial. Claims that do not comply with these deadlines “shall be forever barred.”

In United States v. Wong, No. 13-1074, plaintiff sought damages arising out her detention by the Immigration and Naturalization Service. While awaiting denial of her administrative claim by the INS, plaintiff filed a motion for leave to amend her existing complaint to add an FTCA claim. However, the district court did not grant her motion until after the six-month deadline had passed.

In United States v. June, No. 13-1075, plaintiff’s decedent was killed in an auto accident in 2005 when a driver lost control of her vehicle on an interstate and crossed through the cable median barrier into oncoming traffic. Plaintiff sued the United States in 2009, after discovering that the Federal Highway Administration had falsely reported that the cable median barrier had passed mandatory federal crashworthiness tests.

In both cases, the Ninth Circuit held that the FTCA time limits were subject to equitable tolling in appropriate cases where plaintiff was diligent in pursuing her claim but was prevented from complying with the limitations by circumstances beyond her control, particularly where the government played a role in creating those circumstances.

AAJ argued to the Supreme Court that the Ninth Circuit’s holding comports with the text of the FTCA, which provides that the federal government “shall be liable in the same manner and to the same extent as a private individual under like circumstances.” Courts have historically exercised their equitable power to toll statutes of limitations in appropriate cases. Equitable tolling also comports with Congress’s purpose of providing redress to those injured by federal government employees. In addition, equitable tolling permits courts in cases like Wong and June to avoid depriving of injured claimants of their statutory causes of action in violation of due process and right of access to the courts. 

On Tuesday, November 25^th, the California Supreme Court issued an order granting the petition for review in Hughes v. Pham, a case CCL has been working on for several years. The court is holding the case pending its resolution of another case, Rashidi v. Moser, which presents the same statutory question presented in the Hughes petition. The court has not yet said whether it will ask for briefing on the constitutional issues presented in the Hughes petition, including whether California’s $250,000 cap on noneconomic damages in medical malpractice cases violated the state’s “inviolate” right to jury trial. The lead case does not involve the constitutional issues presented in the Hughes petition. A decision in the lead case is expected by early January.

On November 17^th, CCL filed its reply in support of its petition for review in Hughes v. Pham in the California Supreme Court. The case, discussed here and here, involves a constitutional challenge to the $250,000 cap on noneconomic damages in medical malpractice cases that was enacted in 1975 as a part of the Medical Injury Compensation Reform Act (MICRA). CCL Senior Litigation Counsel Valerie M. Nannery, representing Trent and Lisa Hughes, whose noneconomic damages were reduced from $3.75 million to $500,000 under the MICRA cap, urged the California Supreme Court to grant review of the jury trial and separation of powers issues presented in the petition. The California Supreme Court has never addressed whether the MICRA cap violates the state’s “inviolate” constitutional right to a jury trial or separation of powers. In recent years, several other state supreme courts have overturned caps on damages on jury trial and separation of powers grounds.

The plaintiffs are represented by CCL’s Valerie M. Nannery, David Bricker of Waters Kraus & Paul in Los Angeles, CA, Burt Rosenblatt of Ely, Bettini, Ulman & Rosenblatt in Phoenix, AZ, and Steven B. Stevens in Los Angeles, CA.

On November 13^th and 14^th, CCL Senior Litigation Counsel Valerie M. Nannery participated in a two-day, invitation-only conference hosted by the Duke Center for Judicial Studies to examine how the amendments to Federal Rule of Civil Procedure Rule 26(b)(1), discussed earlier here and here, should be implemented, should they go into effect on December 1, 2015. “Implementing Discovery Proportionality Standard Conference” included panels on the history of the amendments and the concept of “proportionality” in discovery, judicial case management, and applying the factors in the “proportionality” standard. Participants included practitioners from the defense and plaintiffs’ bar, in-house counsel from several large corporations, and several federal judges, including members of the Advisory Committee on Civil Rules and the Judicial Conference’s Committee on Rules of Practice and Procedure.