News

Judge Edward P. Nickinson, III, upheld a year-old Florida statute that gives likely medical malpractice defendants and their litigation allies the right to seek ex parte interviews with a plaintiff’s treating physicians, including those who treated the plaintiff up to two years prior to the alleged malpractice incident. Such presuit interviews are authorized by a law that went into effect July 1, 2013.  CCL had challenged the law as preempted by the federal Health Insurance Portability and Accountability Act, which explicitly preempts state laws that are less stringent in its protection of patient privacy than provided by federal regulations, and violative of several provisions in the Florida Constitution.  CCL expects to appeal the ruling.

 In his opinion, Judge Nickinson disagreed with the federal District Court for the Northern District of Florida, which found that the state law was preempted.  In Murphy v. Dulay, issued last fall, the federal judge found that the Florida legislature evaded HIPAA’s requirements applicable to judicial proceedings by requiring plaintiffs to execute a state-mandated authorization form.  That case is currently on appeal in the Eleventh Circuit, which will hold arguments in mid-September.

Judge Nickinson, relying on a Texas Supreme Court case, found the state-mandated form was a legitimate alternative to following the stricter federal regulations.  He also found that the authorization requirement was substantive, rather than procedural, so that the Legislature did not intrude on the Florida Supreme Court’s exclusive constitutional authority over rules of procedure, even though a preexisting rule of procedure promulgated by that court conflicted with the new law. The ruling also rejected arguments that the law constituted special legislation, which the Florida Constitution prohibits, as well as burdens a plaintiff’s constitutional right of access to the courts.  Instead, he held that the requirement was a legal precondition to bringing a medical malpractice action, a position that a majority of courts throughout the country have rejected.

On June 27, a panel of the Sixth Circuit handed down its decision in the consolidated appeals from the dismissal of plaintiffs' claims for personal injury in the Darvocet, Darvon and Propoxyphene MDL. The panel largely affirmed District Judge Danny Reeves' rulings dismissing plaintiffs' claims. 

On appeal, CCL Chief Litigation Counsel Louis Bograd had argued that plaintiffs' design defect and negligent marketing claims survived preemption under the reasoning in fn. 4 of the Supreme Court's decision in Mutual Pharmaceutical Co. v. Bartlett, which recognized that state law claims that paralleled federal misbranding provisions might not be preempted. Without reaching the merits of that argument, the panel held that it was inapplicable on the facts in these cases, because the FDA had approved continued marketing of propoxyphene drugs, over the contrary recommendation of its advisory committee, in 2009. The 6th Circuit panel also concluded that the MDL plaintiffs had not adequately pled claims based on the alleged failure by generic manufacturers to update their warning labels to match changes to the Darvon label ordered by the FDA in 2009 and that it was likely that courts in 22 states would not recognize claims for misrepresentation against the manufacturers of Darvon and Darvocet brought by persons injured by the generic versions of those products. 

Plaintiffs are considering their options in response to this ruling. 

On June 19th, CCL Chief Litigation Counsel Louis Bograd argued before the en banc 9th Circuit in two consolidated appeals that address an important issue of federal removal jurisdiction under the Class Action Fairness Act (CAFA). Romo v. Teva, Inc. and Corber v. Xanodyne Corp. both arise out of propoxyphene litigation filed in California state courts. No individual propoxyphene suit in California involves 100 or more claimants, but in total more than 1500 plaintiffs have sued the manufacturers and distributors of propoxyphene there. After plaintiffs invoked a California procedure to coordinate the pending cases before a single judge, defendants removed the cases to federal court, contending that plaintiffs' coordination petition triggered the mass action provision of CAFA, which permits removal where the damage claims of more than 100 plaintiffs are "proposed to be tried jointly." To date, every district court to address the issue has concluded that plaintiffs' petition did not propose a joint trial, and a divided 9th Circuit panel agreed. Before the en banc court, Bograd emphasized that the plaintiffs had never invoked the separate procedure under California law for requesting a joint trial and stressed the differences between coordination and consolidation for trial. Bograd also explained to the court that bellwether trials, the manner in which mass pharmaceutical torts are most often litigated, are not binding on the non-bellwether parties and thus do not constitute a joint trial under CAFA. A decision is expected in a few months. 

Even while before the argument, the defendants had filed petitions for certiorari in the U.S. Supreme Court, fearing that a failure to do so would not preserve their appeal under CAFA’s strict timelines.  CCL’s Bograd and Andre Mura filed briefs in opposition to the petitions. On June 30, the Supreme Court denied both petitions, leaving the matter, at this point, to the Ninth Circuit’s en banc panel.

In Weaver v. Meyers, a Florida trial court must rule on whether a 2013 state statute that authorized presuit ex parte interviews of a putative medical-malpractice plaintiff’s treating physicians, going back as far as two years before the alleged malpractice. CCL has challenged the law as preempted by the federal Health Insurance Portability and Accountability Act (HIPAA), as well as on state constitutional grounds.  On June 12, defendants filed a proposed brief responding to CCL’s latest brief in the case, along with a motion for leave to file a sur-reply, asserting that CCL had raised new issues in its response to the defendants’ cross-motion for summary judgment and raising questions about the accuracy of CCL’s rendition of caselaw in its brief.  On June 16, CCL filed a response to the request, pointing out that no new issues had been raised and that the issue identified as new by the defendants had been part of the defendants’ own cross-motion and thus the door to the issue had been opened by the defendants.  CCL also denied any inaccuracies in its description of caselaw, indicating that claim, even if true, was not a basis on which Florida courts permitted sur-replies.  It further pointed out that Defendants’ new proposed brief failed to advise the court that a quotation from a new decision of the U.S. Supreme Court was in a section of the opinion joined only by three justices, and thus had no precedential value.  The CCL response concluded that it had no objection to the court’s acceptance of the proposed brief, provided that the brief was read with extreme caution.

The Florida Justice Association featured CCL President Robert S. Peck as a speaker at its 2014 Convention in West Palm Beach, Florida.  Coming fresh after his victory in the state supreme court in Estate of McCall v. United States, 134 So.3d 894 (Fla. 2014), which invalidated the Florida cap on non-economic damages in medical malpractice cases involving wrongful death, Peck addressed the case and its meaning at two seminar sessions held on June 11 and 13.  In his remarks, Peck described five myths that defense counsel will propagate to minimize the reach of the decision and why each were inaccurate.

In addition, on June 12, Peck introduced Linda Lipsen, CEO of the American Association for Justice, at the FJA membership meeting that preceded the group's election of new officers. Lipsen talked about the many ways that AAJ supplements the work of the FJA in protecting clients' rights and the civil justice system more generally.

The McCall case is just the latest case that CCL has litigated to help Florida lawyers overcome obstacles that harm better their clients' cases.  Previously, CCL represented the FJA before the Florida Supreme Court after Floridians approved a state constitutional amendment that would have limited contingency fees in medical-malpractice cases, in order to discourage lawyers from taking complex cases. Before the Court was the question whether the limitation was subject to informed and voluntary waiver.  Peck argued that as an individual constitutional right the limit should be subject to waiver.  The Court adopted the argument and ordered the Florida Bar to produce a standard waiver form. In Re: Amendment to the Rules Regulating the Florida Bar - Rule 4-1.5(f)(4)(B), 939 So.2d 1032 (Fla. 2006).

In Bradley v. Sebelius, 621 F.3d 1330 (11th Cir. 2010), CCL represented a Florida family whose entire judgment arising from the negligent death of their father in a nursing home was claimed by Medicare for expenses it had advanced for medical care.  The family had settled the case for available policy limits, which constituted a tiny percentage of the damages they could have claimed.  After the Department of Health and Human Services refused to lower their reimbursement claim or participate in an apportionment in a Florida probate court, counsel for the family started a declaratory judgment in action in federal district court, which ruled in favor of  the federal department.  CCL took the case up on appeal to the 11th Circuit, where it argued that the Department's statutory interpretation lacked the force of law because it had not been subject to review and comment and had placed the family in a Catch-22 situation. The 11th Circuit adopted CCL's argument in full, also characterizing the situation as a Catch-22, and reduced the Department's share of a $50,000 settlement to $455 less attorney fees.

In FCAN v. Bush, 830 So.2d 148 (Fla. 1st DCA 2002), CCL, along with Florida lawyers, challenged a 1999 omnibus tort reform statute, resulting in a circuit court victory, which was reversed on appeal on standing grounds, using a rationale that has now been repudiated.  In Wexler v. Lapore, 385 F.3d 1336 (11th Cir. 2004), and Wexler v. Anderson, 452 F.3d 1226, CCL challenged voting administration that used the excuse of different systems within a single election districts to avoid recounts in extraordinarily close elections.  The lawsuit resulted in a legislative change to the law, adopting the relief sought by the lawsuit.

In addition, CCL has two pending challenges to a Florida statute that authorized ex parte interviews, presuit, with a putative medical-malpractice plaintiff's treating physicians. In 2013, CCL won a decision in the U.S. District Court for the Northern District of Florida, finding the statute preempted by federal law in Murphy v. Dulay, 975 F. Supp.2d 1200 (N.D. Fla. 2013). That decision is currently on appeal to the 11th Circuit, with oral argument scheduled for the third week of August.  A second case in state court in Pensacola adds additional claims, asserting that the law also violates provisions of the Florida Constitution. That case, Weaver v. Meyers, 2013 CA 001714 (Fla. 1st Jud. Cir.), is currently under advisement in a Florida trial court.

Currently, CCL has filed an amicus brief on behalf of AAJ in the Florida Supreme Court in the pending case of Westphal v. City of St. Petersburg, Nos. SC13-1930 & SC13-1976, which raises the question of whether an injured worker who has exhausted his limit on temporary total disability is eligible for permanent total disability benefits.

CCL’s Robert S. Peck served as the moderator for an all-day seminar on Consumer Warranty Class Actions, sponsored by the American Association for Justice at its headquarters June 4.  The seminar covered operation of the Magnuson-Moss Act, challenges to class actions, special issues arising at the certification stage, lessons from the Whirlpool moldy washer litigation, and approaches to settlement.

In his opening remarks to set the stage for the day, Peck talked about how class actions were under the most severe attack since their inception. He noted that these challenges occur through legislative actions, court decisions, press accounts, and rulemaking changes. While the seminar was not designed to address paths through all those thickets, it covered a number of successful strategies in consumer class actions.

CCL has handled a number of appeals in class action and related cases. Currently, CCL’s Lou Bograd is set to argue a case before the Ninth Circuit, en banc, on whether coordination under California’s rules of civil procedure constitute a “mass action” for removal under the federal Class Action Fairness Act. A panel of the Ninth Circuit held that coordination is not the equivalent of attempting to try a case jointly and thus does not qualify for removal.  Bograd’s argument will seek an affirmance of that decision. 

CCL filed a reply brief, responding to the defendants’ cross-motion for summary judgment, in a challenge to a 2013 Florida statute that authorized presuit, ex parte interviews of a medical malpractice plaintiff’s treating physicians.   Late last year, CCL won a federal district court ruling in Murphy v. Dulay, which held the same statute preempted by the federal Health Insurance Portability and Accountability Act (HIPAA). That case is currently on appeal and will be heard in the U.S. Court of Appeals for the Eleventh Circuit in August.

The present case combines allegations that the Florida statute is preempted by HIPAA, with arguments that it violates separation of powers, the ban on special privileges, and the guarantee of access to the courts under the Florida Constitution.  CCL President Robert S. Peck, counsel in both challenges, argued this case, Weaver v. Myers, in a Florida circuit court in Pensacola in May. Because Defendants filed their cross-motion for summary judgment and accompanying 75-page brief less than a week before the hearing, the court granted Peck leave to file a reply afterwards. In the reply, Peck points out that the Defendants request that the court apply a lenient preemption standard to permit the Florida law to coexist with federal law could not be observed because Congress had expressly preempted state laws that were less stringent in the protection of patient privacy than HIPAA.  He further argued that Florida, by requiring putative patient-plaintiffs to execute an authorization form, may not bypass federal requirements by labeling it a condition precedent to filing a lawsuit.  Under those circumstances, Peck said, it would be Florida law preempting federal law, rather than the other way around.  In addition, Peck countered the defendants’ state constitutional arguments by pointing out that existing Florida procedural rules were overridden by the statute, when the Constitution makes the establishment of procedural rules the exclusive province of the Florida Supreme Court.  Precedent holds that any legislation that conflicts with existing rules of civil procedure are void as a violation of separation of powers.

 Defendants also argued that the constitutional prohibition on special privileges applicable to evidentiary rules could not be violated by a statute that gives access to oral interviews of treating physicians when those interviews are not admissible in court, but Peck pointed out that a prohibition on the introduction of evidence is a rule of evidence. Finally, Defendants contended that the constitutional right of access to courts is only violated when a cause of action is completely abolished. Peck demonstrated in his brief that Florida long ago abandoned the lower court precedents that so held and have reiterated that access is denied whenever an unreasonable burden on the right is legislated.

The case now is considered under submission, and a decision is expected soon. 

CCL’s Valerie M. Nannery attended the Spring meeting of the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States (“Standing Committee”) in Washington, DC on May 29th and 30th. On the first day of the meeting, the Standing Committee took up proposed amendments to the Federal Rules of Civil Procedure, discussed previously here and here. The chair of the Civil Rules Advisory Committee, Judge David Campbell, presented a couple of additional changes to the Committee Notes for Rule 26 and Rule 37(e), but the proposed amendments to the text of the rules were the same as those approved by the Advisory Committee at its meeting last month in Portland, OR.

After some questions from several members of the Standing Committee, the proposed changes to the rules of discovery and several rules on case management were approved by the Standing Committee by a unanimous vote. The proposed changes to Rule 37(e) were discussed at length on both days of the meeting, and the Standing Committee unanimously approved the proposed amendment with minor modifications to the text. The proposed amendments approved by the Standing Committee would redefine the scope of discovery, reduce the time to serve a summons and complaint, abrogate most of the Official Forms, and change the standard in several federal circuits governing the types of measures a court may use to remedy a party’s failure to preserve electronically stored information.

The next step for the Civil Rules amendments is consideration by the members of the Judicial Conference of the United States in September 2014. The Judicial Conference can approve or reject any of the recommendations of the Standing Committee, or send them back to the Committee for additional consideration.

In Public Employees’ Retirement System of Mississippi v. IndyMac MBS Inc., No. 13-640, the U.S. Supreme Court will consider whether the filing of a putative class action serves, under the “American Pipe” rule, to satisfy the three-year time limitation in § 13 of the Securities Act of 1933 with respect to class claims.

An amicus curiae brief written by CCL’s Andre M. Mura and Kathryn S. Minton, and filed on behalf of the American Association for Justice (AAJ) in this case, argues that disallowing American Pipe tolling in the securities context would contravene Congress’s intent and cause uncertainty and confusion in future class action litigation that the Court sought to avoid in American Pipe. In American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), the Court held that commencement of a class action filed pursuant to a federal statute suspended the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been certified. The Court found that tolling was appropriate because it was consonant with the policies animating Rule 23, the applicable limitations statute, and the federal legislative scheme. The decision sought to protect federal procedural interests by preventing duplicative litigation from purported class members during the pendency of class certification.

The CCL brief retraces the analytical path the Court followed in American Pipe to show that the Court need only apply that same logic and reasoning to find American Pipe tolling available here. It argues not allowing tolling would result in a multiplicity of needless protective filings, frustrating the aims of Rule 23 and the Private Securities Litigation Reform Act of 1995 (PSLRA). The brief argues that Congress, therefore, would not have wanted to bar tolling, especially when the outcome would not advance any purpose underlying the Act’s three-year limitation period.

Lastly, the brief cautions against focusing on labelling tolling “legal” or “equitable” and encourages the Court to follow its longstanding approach to determining if tolling is available: by evaluating whether tolling is in accordance with the legislative scheme. 

As discussed in more detail in a prior news entry, the U.S. Court of Appeals for the Ninth Circuit is reconsidering whether a petition pursuant to California Code of Civil Procedure § 404 to coordinate separate state court cases involving common questions before a single judge, constitutes a proposal that the cases “be tried jointly” sufficient to give rise to federal removal jurisdiction under the “mass action” provision of the federal Class Action Fairness Act (CAFA). The defendant drug manufacturers of propoxyphene-containing pain products successfully obtained en banc review after a divided three-judge panel ruled that removal was not allowed in these circumstances. At the same time, they petitioned the U.S. Supreme Court for a writ of certiorari, asking it to decide this issue or hold this appeal pending a decision by the Ninth Circuit en banc.

 CCL’s Louis M. Bograd and Andre M. Mura, representing plaintiffs injured by propoxyphene-containing pain products, have now completed briefing opposing Supreme Court review. Romo v. Teva Pharm. USA, Inc., No. 13-1015; Corber v. Xanodyne Pharm., Inc., No. 13-1016. The briefs in opposition urge the Court to deny the petitions for four reasons. First, the petitions are premature because the en banc Ninth Circuit’s review means there is no final judgment for the Supreme Court to review. Second, the question presented turns predominantly on a question of California procedure which the en banc Ninth Circuit has yet to consider. Third, review by the Supreme Court is not warranted absent a “split” in the lower courts. Fourth, the Supreme Court’s most recent decision concerning CAFA, Mississippi ex rel. Hood v. AU Optronics Corp., 134 S. Ct. 736 (2014), provides sufficient guidance in this area, and lower courts should be given time to apply its teachings before further review by the Supreme Court.