News

CCL President Robert S. Peck told CBS News that the California Attorney General’s had only “ministerial” responsibility for giving a title and summary for qualifying initiative petitions, meaning that she could not exercise discretion. Appearing on the CBS Morning News on March 31, CBS News correspondent Ben Tracy about the options available to Attorney General Kamala Harris, who has sought judicial permission to avoid proceeding with an initiative that would criminalize homosexual sex and punish it with death, specifying that the sentence be carried out by “bullets to the head or by any other convenient method.” The blatantly unconstitutional proposed amendment to the California Constitution, which Peck also called “insensible,” has no chance of passing, but garnered headlines because of its extreme proposal and the ease with which the California initiative process is commenced. To make it to the ballot, a petition must gather nearly 400,000 signatures after receiving a title and summary from the Attorney General.

Peck explained that California’s Attorney General may have a way to avoid any further involvement with the amendment. California law requires a proponent to pay a filing fee of $200, plus provide certain information, including public contact information. To date, all news reports indicate that no news organization has successfully contacted the Californian who proposed the initiative. If his public contact information is inadequate or wrong, Peck said, the petitioner has not complied with the prerequisites for filing so that no title or summary would need to be issued by the state.

On Monday, March 23, the Supreme Court denied generic drug company Morton Grove Pharmaceuticals' petition for certiorari in Morton Grove v. Adams, an appeal arising out of the In re Reglan/metoclopramide Cases, mass tort proceedings in Philadelphia. CCL Chief Litigation Counsel Louis Bograd represented Plaintiff-Respondent Adams before the Court. Reuters covered the denial here. 

The Pennsylvania Superior Court had ruled that Adams' product liability claims against Morton Grove for injuries caused by long-term use of its metoclopramide syrup were not preempted, because Morton Grove, as the manufacturer of the Reference Listed Drug for metoclopramide syrup, could have strengthened the warnings on its product without prior FDA approval. Morton Grove contended that that ruling was in error because, as a generic drug company, claims against it were preempted under the Supreme Court decision in Pliva Inc. v. Mensing. This was incorrect, Bograd explained, because the test for preemption under Mensing is impossibility, whether federal law prohibited the company from doing what state law required. It was not impossible for Morton Grove to strengthen its warnings because, as the RLD, it could not violate the duty to match RLD labeling, which was the basis for the preemption ruling in Mensing. 

The case will now return to the Pennsylvania state courts for further proceedings.

Have employers hijacked federal protections for seafarers enacted by Congress by using mandatory arbitration clauses in their employment contracts for those who work aboard U.S. based vessels? On March 23, 2015, CCL filed an amicus curiae brief on behalf of the American Association for Justice asking the Supreme Court to halt this erosion of federal statutory rights by accepting Pysarenko v. Carnival Corp., Docket No.14-12378, for review.

Vitalii Pysarenko, a citizen of Ukraine (now a permanent resident of the U.S.), was employed by Carnival Cruise Lines, headquartered in Miami. He was injured while moving heavy equipment aboard the Carnival Dream in Port Canaveral, Fla. Pysarenko brought suit under the Jones Act and the Seamen’s Wage Act. Carnival moved to compel arbitration, alleging that the manadory arbitration provision in Pysarenko’s employment contract was enforceable under Chapter 2 of the Federal Arbitration Act, which implements the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, including those between U.S citizens and citizens of foreign countries. The district court granted Carnival’s motion to compel arbitration in Monaco while applying Panamanian law as provided in the employment contract. The Eleventh Circuit affirmed.

AAJ’s amicus brief supporting Pysarenko’s Petition for Certiorari, prepared by CCL Senior Counsel Jeffrey R. White, emphasized the Court’s historic role in protecting the rights of seafarers, long deemed “wards of the admiralty.” That role remains essential with respect to the cruise industry, which makes use of “flags of convenience” to evade safety regulations. AAJ also pointed out to the Court that the enforcement of mandatory arbitration agreements under Chapter 2 of the FAA also extends to U.S. citizen seamen who hire onto foreign vessels and to U.S. seamen working aboard U.S. vessels, where the employment contract has some connection with a foreign nation.

Enforcement of the arbitration provision under Chapter 2 of the FAA raises three important issues that should be resolved by the Supreme Court. First, enforcement violates § 1 of the FAA, which states that “nothing herein contained shall apply to contracts of employment of seamen.”  Second, enforcement violates the Federal Employers Liability Act, 45 U.S.C. § 55, which is incorporated into the Jones Act and states that any contract “the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void.” Third, enforcement violates the Court’s precedents stating that federal statutory rights may be the subject of arbitration only where the party may vindicate his federal rights in the arbitral forum. In this case, because the laws of Panama offer no rights to seafarers comparable to the Jones Act and Seamen’s Wage Act, the mandatory arbitration provision operates as a prohibited prospective waiver of federal statutory rights.

Arguing that the so-called Lawsuit Abuse Reduction Act would have prevented Brown v. Board of Education from going forward, CCL President Robert S. Peck told a House Judiciary subcommittee that the bill would “expose Americans to more harmful products and misconduct by diminishing the opportunity to hold those responsible accountable,” “add to the cost of litigation, not lower it,” while raising profound separation of powers issues by virtue of its attempt to amend a rule of civil procedure directly, rather than through the Rules Enabling Act, which makes the judiciary primarily responsible for the promulgation of procedural rules.

The bill, H.R. 758, attempts to roll back the present version of Rule 11, adopted in 1993, to reinstate the language it had in 1983, when sanctions were mandatory, rather than discretionary. Even the strongest judicial advocates of mandatory sanctions, receded from that support based on experience that showed that Rule 11 motions were brought primarily for tactical reasons that only multiplied proceedings, caused waste and delay, and increased tensions between parties, making the job of judges harder, Peck told the Subcommittee on the Constitution and Civil Justice.  The bill is also opposed by the Judicial Conference of the United States, the governing body of the federal courts, as well as the American Bar Association.  A 2005 poll of judges, conducted by the Federal Judicial Center, found 87 percent favored the current rule, while only five percent wanted a return to the 1983 version.

Peck’s reference to Brown v. Board of Education was supported by a 1988 article by U.S. District Court Judge Robert Carter, a member of the legal team in Brown, who believed that the case would not have gotten past a Rule 11 motion under the 1983 rule. Noting that judges have ample authority to sanction baseless filings, Peck said that judicial discretion is necessary because different violations warrant different remedies. Peck concluded his remarks by quoting University of Pennsylvania Professor Stephen Burbank, who described the decade-long experience under the 1983 rule as an “irresponsible experiment with court access,” and urged Congress to reject the bill for the reason that the Judicial Conference had interred the 1983 rule.

On Monday, CCL argued that the defendants argued for an implausible construction of the Florida rules of civil procedure, in a specious effort to avoid invalidation of a statute that expands presuit discovery to include ex parte interviews with a medical malpractice plaintiff’s treating physicians, including those who treated the plaintiff two years before the alleged malpractice. In the reply brief filed in Florida’s First District Court of Appeals, CCL President Robert S. Peck argued that the rule’s delineation of three forms of permissible discovery was exclusive under applicable canons of constitutional construction and that the Legislature had no authority to expand the available methods because the state constitution limited that authority to the Supreme Court. Opposing counsel argued that the use of the word “may” in the rule that stated parties may use one or more of the following methods indicated that the rule anticipated legislative expansion. The CCL brief rejoined that the word “may” simply made presuit discovery permissible rather than obligatory.

In addition to responding to other arguments, the CCL brief made a special point about the state constitutional right of privacy. The trial court had found that the plaintiff had neither standing to make a privacy claim nor was entitled to make such a constitutional claim against a private party. The defendants simply parroted that ruling. CCL, however, pointed out that the trial court and defendants had conflated arguments applicable to the invasion of privacy tort, which seeks damages, with the constitutional right in a case that merely seeks a declaration of rights. Moreover, the brief said, the necessary state action occurred when the legislature passed the statute. Because the defendants had indicated their intention to utilize the statute, they were proper parties to a declaratory judgment action to decide the constitutionality of the underlying statute.

With briefing now complete, the case will soon be set for oral argument.

This week, CCL filed a response in opposition to Wyeth LLC, Wyeth-Ayerst International Inc. & Wyeth Pharmaceuticals Inc.’s Motion for Summary Affirmance in a Third Circuit appeal that involves the important and recurring problem some have called “snatch and remove.” In the case, Wyeth LLC, the only non-forum defendant sued in Pennsylvania state court on state law claims, filed a notice of removal the day after CCL’s clients filed their complaint. At the time the notice of removal was filed, no defendant, including the two properly joined in-state defendants, had been served. Many other judges have remanded such cases to state court, seeing the removal before service as gamesmanship meant to make an end run around the “forum defendant rule” in 28 U.S.C. § 1441(b)(2), which was intended to limit removal of cases in which a defendant is sued in its home state. The district court judge in this case denied the plaintiffs’ motion to remand, adopting a broad, literal interpretation of the “plain language” of a portion of 28 U.S.C. § 1441(b)(2), and holding that removal was proper because the forum defendants were not “properly joined and served” at the time of removal.

Although this case presents an important issue of first impression, the defendants argued that the U.S. Court of Appeals for the Third Circuit need not address the propriety of removal, even though the plaintiffs preserved the issue for appeal, and could not immediately appeal the district court’s decision on their motion to remand. The defendants argued that the court should decline to review this substantial issue, and summarily affirm the merits of the district court’s decision granting summary judgment on the merits of the plaintiffs’ claims to the defendants. CCL’s Valerie M. Nannery and Jeffrey R. White filed a response in opposition today arguing that the court of appeals has an obligation to address the legal issues that were preserved for appeal, and that failure to do so will leave the lower courts in disarray, with no guidance from the court of appeals. CCL maintained that summary affirmance is inappropriate in this case because the issues on appeal raise substantial questions on which there is no binding authority from the Supreme Court or the Third Circuit.

On March 10th, CCL attorneys filed their opening brief in an appeal presenting an important issue of first impression, whether an out-of-state defendant can remove a case from state to federal court before the in-state defendants are served. The case originated because the plaintiff developed the deadly disease pulmonary arterial hypertension (PAH) after taking the diet drug Fen-Phen. Plaintiffs sued the manufacturers of Fen-Phen, two of which are Pennsylvania corporations, in Pennsylvania state court on state law claims. The next day, before plaintiffs had the opportunity to serve any of the defendants, the only out-of-state defendant removed the case to federal court. Under Pennsylvania rules of civil procedure, immediate service on a Pennsylvania citizen is not feasible, but service must be made within 30 days of filing. Plaintiffs served the two forum defendants and asked the district court to remand because removal was premature and improper because of the presence of two properly joined forum defendants. The district court denied the plaintiffs’ motion to remand, and would not certify its order for interlocutory appeal.

The case remained in federal court and the defendants filed a joint motion to exclude plaintiffs’ expert evidence that her use of Fen-Phen caused her illness under Federal Rule of Evidence 702 and for summary judgment. The district court held that none of plaintiffs’ expert testimony was admissible because it fell short of Pennsylvania’s requirement that experts opine “to a reasonable degree of medical certainty.” Without admissible evidence as to causation, the court ruled, defendants were entitled to summary judgment.

In the brief filed on Tuesday, CCL’s Valerie M. Nannery and Jeffrey R. White asked the U.S. Court of Appeals for the Third Circuit to reverse the district court’s holding that removal of the case from state court was proper, and to vacate the district court’s determination on the merits because removal was premature and improper under 28 U.S.C. § 1441(b)(2), otherwise known as “the forum defendant rule.” This provision limits the cases that can be removed on the basis of diversity jurisdiction when “any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” When a defendant is a citizen of the forum state, there is no local prejudice to the defendant from litigating in state court.  

Because there were forum defendants who were properly joined in the case, CCL argued, removal before service on any party was both premature and improper under the express terms of the removal statute and its purpose. CCL urged the court to reject a reading of the statute that would provide defendants a way to subvert the forum defendant rule by monitoring state court dockets and immediately filing a notice of removal, thus depriving plaintiffs of their proper choice of forum, and filling federal district courts with cases that belong in the state courts where they were filed.

In the alternative, CCL argued that the district court was wrong in granting summary judgment to the defendants because there was admissible evidence that Fen-Phen caused the plaintiff’s PAH. Hired experts and treating physicians alike each concluded, unequivocally, that the plaintiff’s PAH was caused by her use of the diet drug. On appeal, CCL argued that the district court failed to evaluate each expert’s testimony in its entirety, as required by Pennsylvania law. 

CCL, on behalf of respondent Theresa Huck, recently opposed the filing of an amicus brief in support of a petition for certiorari in Pliva, Inc. v. Huck. The amicus brief was submitted on behalf of the Generic Pharmaceutical Association (GPhA) by the law firm of Ulmer & Berne. Although CCL normally, as a matter of professional courtesy, does not object to reasonable requests to appear as amicus curiae, CCL opposed this request because the law firm that filed the amicus brief also represents the petitioner, Pliva, Inc., in this and related cases. CCL therefore believes that the submission of this amicus brief violates Supreme Court rule 37.6, which requires amici to certify whether counsel for a party authored the amicus brief in whole or in part. GPhA asserted in its proposed brief that “no counsel for a party in this Court wrote this brief in whole or in part.” The “in this Court” language departed from the usual Rule 37.6 language. CCL contends that this representation was false, given Ulmer & Berne’s representation of the petitioner, and therefore opposed submission of the amicus brief in support of the petition.

On February 23^rd, CCL filed a brief in the U.S. Supreme Court to oppose to the petition for a writ of certiorari in Pliva, Inc. v. Huck, No. 14-544, on behalf of the plaintiffs. The case involves a failure-to-warn claim against the manufacturer of generic metoclopramide based on its failure to provide a warning against longterm use of the drug that had already been approved by the FDA. The Iowa Supreme Court recognized that such a claim escaped federal preemption under the reasoning of Fulgenzi v. Pliva, Inc., 711 F.3d 578 (6th Cir. 2013), another case that CCL handled. The failure to provide the updated warning that the name-brand manufacturer utilizes takes the case outside the scope of Pliva, Inc. v. Mensing, 131 S.Ct. 2567 (2011), where the Supreme Court ruled it impossible for the generic manufacturer to update warnings on its own. Pliva petitioned for Supreme Court review, contending that plaintiff’s claim was impliedly preempted under Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341 (2001), as an attempt at private enforcement of the FDCA. The brief was written by CCL Chief Counsel Lou Bograd on behalf of Theresa Huck and argued that that question Pliva put forth was not actually presented in this case, that the question actually decided by the Iowa Supreme Court had already been answered by the U.S. Supreme Court, that the FDA had rejected Pliva’s interpretation of federal regulatory requirements, and that the issue—which largely affects a single company—would largely be mooted by a new labeling regulation proposed by the FDA.

On January 29, CCL filed an amicus curiae brief on behalf of the American Association for Justice supporting a Petition for Certiorari in McBride v. Estis Well Service, S. Ct. Docket No. 14-761. The case arises out of an accident aboard a barge supporting a truck-mounted drilling rig. The rig toppled over, killing one of the crew and injuring several others. The decedent’s representative and two injured workers alleged that Estis, their employer and owner of the barge, willfully ignored warnings concerning the dangerous condition of the rig. The central issue for the Supreme Court is whether seamen may recover punitive damages for willful and wanton breach of the general maritime law duty to provide a seaworthy vessel.

A federal magistrate judge dismissed the McBride claim for punitive damages, based on prior Fifth Circuit precedent. A panel of the U.S. Court of Appeals for the Fifth Circuit reversed, holding that the prior precedent had been overruled by Townsend v Atlantic Sounding (2009), a Supreme Court decision written by Justice Thomas, which upheld recovery of punitive damages under general maritime law for willful failure to provide an injured seaman with maintenance and cure.  However, on rehearing en banc, the entire Fifth Circuit reversed the panel decision by a 9-6 vote. The circuit court extended the Supreme Court’s decision in Miles v Apex Marine Corp. (1990), which held that non-pecuniary damages, such as loss of society, were not recoverable in a Jones Act suit, to bar recovery of punitive damages. There is a split in authority among the federal circuits on this issue.

The AAJ amicus brief, authored by CCL  Senior Counsel Jeffrey White, urged the Court should to grant McBride’s cert petition. The Court has historically safeguarded the rights of seamen as “wards of the admiralty.” In addition, the case is controlled by Townsend, which held that Congress intended the continued availability of existing remedies, such as punitive damages, rather than Miles, which declined to make new remedies available under general maritime law. Finally, CCL suggested that the federal courts draw upon the reasoning and experience of state common law courts in recognizing the availability of punitive damages in products liability suits which, like unseaworthiness actions, are grounded in strict liability.