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CCL President Robert S. Peck presented Civil Justice Today: Is a Hostile Takeover Taking Place? at the American Association for Justice’s 2015 Leaders Forum Retreat in Playa del Carmen, Mexico on April 25. Mr. Peck spoke about the many fronts on which a person’s constitutional right of access to the courts is being attacked. He described his recent testimony before a subcommittee of the House Judiciary Committee, which was pushing forward legislation to create mandatory sanctions for filings that are not supported by sufficient facts or law. In that testimony, he described the “failed experiment” with precisely the same rules, how it resulted in cost and delay through significant satellite litigation and was opposed by the Judicial Conference of the United States. He also described the countless obstacles placed before the courthouse door by state legislation, proposed procedural rules changes, recent U.S. Supreme Court decisions, and arguments being made to the Court. He described CCL’s many efforts challenging legislation, commenting on rules proposals, and opposing certiorari in Supreme Court. In particular, he described CCL’s recent brief in opposition to certiorari on behalf of the plaintiffs in Wal-Mart v. Braun, where the Pennsylvania state courts upheld a $187 million verdict in a wage-and-hour class action on behalf of 187,000 current and former Wal-Mart employees. Wal-Mart asked the Supreme Court to overturn the verdict because the company did not get to cross-examine all members of the class and because some of the damages were the product of extrapolation by experts. The CCL brief explained that Wal-Mart was not prohibited from cross-examining as many employees as it chose and did not take advantage of that opportunity. Moreover, the extrapolated evidence was the product of spoliation. Wal-Mart stopped keeping employee time records after it was first sued in other states. As a result, the jury was entitled to take an adverse inference from the lack of record keeping, which was required by law

In a case argued by CCL’s Andre M. Mura, a federal district court in Florida refused to dismiss a class action complaint seeking damages for deceptive food labeling. The case concerns Wal-Mart’s Great Value “100% Cranberry Pomegranate” juice blend, which contains far less cranberry or pomegranate juice than labeling suggests. Wal-Mart argued that the suit was preempted because its labeling complied with federal law, and it sought dismissal because, it said, plaintiffs lacked standing. The district court here agreed with plaintiffs that their suit is not preempted and that they have standing to sue. The 37-page ruling, issued on April 23, is highly detailed in its analysis of preemption in this context, and is a great precedent for plaintiffs.

Plaintiffs are also represented by Tim Howard of Howard & Associates, PA of Tallahassee, Florida.

Equity and fairness can trump even an emphatic statute of limitations, the Supreme Court held on April 22, 2015, applying the principle to the time limits imposed by the Federal Tort Claims Act. United States v. Wong, No. 13-1074.

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 accrues. Additionally, the claimant must file suit within 6 months after the agency’s denial. Claims that do not comply “shall be forever barred.” The Court’s decision involves both time limits.

In Wong, plaintiff sought damages arising out her detention by the Immigration and Naturalization Service. However, she was not able to timely file suit because the district court did not grant her motion to add the FTCA claim to her existing complaint 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 may be equitably tolled where plaintiff was diligent in pursuing her claim but was prevented from complying by circumstances beyond her control, particularly where the government played a role in creating those circumstances. The Supreme Court granted certiorari to resolve a circuit split on the question.

An AAJ amicus brief, prepared by CCL Senior Counsel Jeffrey R. White, urged the Court to affirm. Neither the text of the FTCA nor the purpose of the statute suggest that Congress intended to preclude the tolling of the time limits where equity requires. 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. 

The Court upheld the Ninth Circuit by a 5-4 margin. Justice Elena Kagan, writing for the Court, rejected the government’s primary argument – that the time requirements were “jurisdictional” and not subject to equitable tolling. Although courts in earlier times used the term “jurisdictional” more loosely, Justice Kagan adhered to the Court’s more recent position that a time bar may be deemed jurisdictional only where Congress has provided a clear statement to that effect. Congress did not intend to exempt the federal government from the general rules that allow equitable tolling. Rather, the FTCA makes the United States liable “in the same manner and to the same extent as a private individual under like circumstances.”

On behalf of the American Association for Justice, CCL’s Andre M. Mura and Jeffrey White filed an amicus curiae brief urging the Massachusetts Supreme Judicial Court to uphold a $63 million award against Johnson & Johnson for serious injuries caused by its over-the-counter drug Children’s Motrin. In a unanimous decision issued on April 17, the Court affirmed the award.

CCL’s brief addressed Johnson & Johnson’s claim that this failure-to-warn suit was preempted by federal law governing over-the-counter drugs. CCL explained that there was no basis for preemption here. To establish preemption, the brief explained, Johnson & Johnson was required to prove that there was “clear evidence” that the FDA would not have approved a change to Children’s Motrin’s label to warn of Stevens-Johnson Syndrome or toxic epidermal necrolysis, which are life-threatening diseases. The Court agreed, finding that Johnson & Johnson could not meet this high burden.

CCL’s brief also addressed whether the federal constitution establishes substantive due process limits on the amount of compensatory damages awarded in this case. CCL explained that this case was not a proper vehicle for considering this question, and that, in any event, any substantive due process limits which apply to punitive damages should not be extended to limit compensatory damages. The Court declined to address this question.

CCL’s Robert S. Peck participated in the biannual meeting of the Board of Directors of Justice at Stake, a nonpartisan national partnership of more than 50 organizations, working to keep courts fair and impartial through public education, litigation and reform. The April 16-17 board meeting took place in Washington, DC, where the board talked about the anticipated U.S. Supreme Court ruling in Williams-Yulee v. Florida State Bar (where the Supreme Court later held that a restriction on direct solicitation of campaign funds by judicial candidates did not violate the candidates’ First Amendment rights) and the battle between the Kansas Governor and the state supreme court over judicial authority. Peck serves as board secretary and chairs JAS’s amicus curiae committee.

U.S. District Court Judge James D. Peterson denied CCL’s motion for a temporary restraining order on behalf of Wisconsin Chief Justice Shirley Abrahamson as unnecessary because the results of the April 7, 2015 vote on a state constitutional amendment changing the selection process for chief justice will not be certified until April 29, so that no one could act on it before then. The ruling, he wrote, was not a decision on the merits. He also set a April 21^st status conference to finalize a briefing schedule and promised to resolve the issue quickly.

The lawsuit, filed the day after the election, has attracted coverage in the New York Times, the Milwaukee Wisconsin Journal Sentinel, Dom's Domain, Green Bay Press Gazette and a Wall Street Journal editorial.

CCL’s Robert S. Peck and Kathryn Minton represent Chief Justice Abrahamson and five voters who supported her reelection in 2009 for a term that ends in 2019.

Representing Chief Justice Shirley Abrahamson and five voters, CCL filed a federal lawsuit Wednesday seeking a declaration that the constitutional amendment approved by voters April 7, which changed the method by which the chief justice was selected, cannot be implemented until a naturally occurring vacancy occurs in that post. Abrahamson, a member of the court since 1976, has served as chief justice since 1996. Prior to Tuesday’s vote, the Wisconsin Constitution conferred the office of chief justice on the most senior continuously serving justice.  In 2009, Abrahamson was elected to another 10-year term, which ends on July 31, 2019.

The newly approved constitutional amendment changes the seniority rule to an election of the justices for a two-year term. The court’s majority is generally regarded as conservative, while Abrahamson is known as a liberal. News reports have speculated that the upshot of the amendment is that Abrahamson would be replaced with a member of the conservative wing of the court.

The complaint and memorandum, seeking immediate injunctive relief, argues that a constitutional amendment must explicitly and unmistakably indicate that it is to have retroactive effect; otherwise, the amendment must be construed as prospective in nature. Any other approach, the lawsuit contends, would violate the due process and equal protection rights of Abrahamson in her position, as well as the dilute and debase the voters who supported her in the 2009 election.

The lawsuit names the six other Wisconsin Supreme Court justices as defendants, as well as certain state officials responsible for administration and payroll. Wisconsin Attorney General Brad Schimel was served with the complaint as well, as his office has authority to defend the action. The plaintiffs in this action are represented by CCL’s Robert S. Peck and Kathryn Minton.

The Center for Constitutional Litigation today filed a brief in the United States Supreme Court in opposition to the petition for a writ of certiorari filed by Teva Pharmaceuticals USA and Pliva, Inc. in Teva Pharmaceuticals USA, Inc. and Pliva, Inc. v. Hassett, the third cert petition to arise out of the mass tort litigation in Philadelphia on behalf of persons injured by generic metoclopramide, In re Reglan/Metoclopramide Litigation.

In Pliva, Inc. v. Mensing, the Supreme Court ruled that federal food and drug law preempts state tort claims against generic drug manufacturers where federal law prohibits a drug company from complying with its duties under state law. Despite this clear holding, generic drug companies have argued that Mensing is a “get out of jail free” card for all state tort claims against them, even claims involving state law duties that do not conflict with federal requirements. Numerous courts, including the Pennsylvania Superior Court here, have rejected these arguments. Generic drug companies have now sought Supreme Court review of these rulings on four separate occasions. CCL has consistently opposed these efforts on behalf of persons injured by dangerous generic drugs. In the brief filed today in opposition to the petition for certiorari in Hassett, CCL Chief Litigation Counsel Louis Bograd argues, inter alia, that the Supreme Court lacks jurisdiction to review an interlocutory decision by the Pennsylvania state courts; that there is no split of appellate authority warranting the Supreme Court’s intervention; that the FDA has expressly rejected Teva and Pliva’s arguments and that the agency’s position is entitled to deference; and that, for numerous reasons, the Hassett case would be a poor vehicle for Supreme Court consideration of the questions presented. Bograd was assisted on the brief by CCL’s Jeffrey White. The Supreme Court will decide whether to grant the petition and hear this case near the end of May.

In a hearing on a motion to dismiss for failure to comply perfectly with presuit requirements in medical malpractice cases, CCL President Robert Peck told a Florida trial judge that, if the gist of the defendants arguments was that the plaintiff did not utilize the statutorily mandated form, constitution flaws in the form excused the oversight. 

The issue arises in a tragic case of a woman dying from brain cancer as a result of a late diagnosis. Though the defendants engaged in extensive presuit discovery, eventually received all records they sought before suit was filed, and could not show they were prejudiced in any way, they nonetheless asked the judge to use a technicality to oust the plaintiff from court. Florida lawyer Sean Dominic, counsel for the plaintiff, argued that repeated Florida precedent rejected the defendants' stance. He brought CCL's Peck into the case to emphasize the constitutional basis for those precedents. Peck told the court that the form required the plaintiff to sign releases inconsistent and irreconcilable with Florida Rule of Civil Procedure 1.650, thereby violating the Florida Constitution's exclusive assignment of primacy over court processes to the Florida Supreme Court. The form also violated Florida's strong right of privacy and its guarantee of access to the courts, Peck said.

The case, heard in Osceola County, Florida, was taken under advisement.

In a case involving a woman’s brain cancer that became incurable allegedly because of a delayed diagnosis, Berger v. Garner, filed in a Florida Circuit Court, CCL argues that dismissal should be denied because the defendant health care providers’ argument that the refusal to use a form that permits ex parte interviews imposed an unconstitutional condition on commencement of the lawsuit.  The case, set for a hearing next week, involves a 2013 Florida statute that requires medical-malpractice plaintiffs to file a notice of intent to sue at least 90 days before a lawsuit can be filed and include an authorization for the likely defendants, their lawyers, their experts, and their insurance adjusters to interview the plaintiff’s treating physicians without plaintiff’s counsel present. When no such authorization was filed 90 days before suit was brought, the Defendants moved to dismiss, even though they admitted they have never used the authorization to engage in such ex parte interviews.

CCL’s brief for the plaintiff, written by President Robert S. Peck and associate Kathryn Minton, argues that the requirement conflicts with Florida Rule of Civil Procedure 1.650 and is therefore null and void as a legislative invasion of the Florida Supreme Court’s exclusive authority to promulgate rules of court. In addition, the requirement, which requires revelation of private health information not at issue in the case, violates Florida’s strong constitutional right to privacy. The brief further argues that the authorization for ex parte interviews violate the Florida Constitution’s guarantee of access to the courts by not being justified by overpowering public necessity and implemented in the least restrictive fashion. Finally, the brief argues that the ex parte provision constitutes a special law that provides an evidentiary privilege only to medical-malpractice defendants and burden to those claimants, when the issue of personal injuries to which treating physicians have evidence is common to a wide variety of plaintiffs.

A hearing on the motion to dismiss is scheduled for April 7 in Kissimmee, Florida.