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  Filing on behalf of the American Association for Justice, CCL argued that apparent manufacturer liability applied to Pfizer Corporation for its labeling of asbestos-based insulation as its own in the case of Rublee v. Carrier Corp., pending in the Washington Supreme Court. 

  Vernon Rublee worked in shipyards beginning in 1965. Insulation that he and coworkers handled contained asbestos, resulting in Rublee's death from mesothelioma. The packages were stamped with the dual logos of Quest and Pfizer, which had acquired Quest. Under the "apparent manufacturer" doctrine, going back a century, a company that places its name on a product as though it were its own should be treated as the manufacturer. Nonetheless, the Washington Court of Appeals rejected application of the doctrine to Pfizer. It instead held that Rublee's employer was a sophisticated purchaser who understood that Quest was the real manufacturer. 

   The AAJ brief argued, however, that the court applied the wrong test. As in much of tort law, the proper perspective was that of the ultimate user of the product. Citing cases where employees were injured by defective products purchased by the employer, courts regularly applied apparent manufacturer liability to the company that had affixed its logo onto the defective tool, regardless of what the employer knew. It further argued that the intermediate appellate court's approach undermined the compensatory and deterrent value of products liability law, which uses a strict liability regime to enable parties innocently injured by the defect to receive compensation and to change manufacturing practices and labeling. In addition, the brief argued that particularly in asbestos cases, which involve injuries that do not manifest for decades after exposure and where the rules regarding statutes of limitation and the discovery of injuries are relaxed because of these latency periods, a user-based rather than purchaser-based rule best serves the objectives of the civil justice system.

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Appeals court panel revives suit faulting Medtronic drug pump in patient death

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    A federal court rejected efforts by Honeywell, Inc. and Ford Motor Company to gain access to documents filed in connection with asbestos-related bankruptcies for use in lobbying efforts connected to asbestos litigation. Instead, as urged in an amicus brief filed on behalf of the American Association for Justice by CCL, the court affirmed a bankruptcy court ruling that restricted the documents' use to litigation purposes.    

     The companies had argued that they were entitled to unrestricted access to the documents for legislative and lobbying purposes. Both companies have defended cases against asbestos liability. Many of the documents they sought in this action, known as In re Motion to Access 2019 Statements, were in closed cases and contained significant personally identifiable information that would have to be redacted if ordered released. Honeywell and Ford argued that either the original plaintiffs or the court itself would have to pay the costs of redaction.

     The U.S. District Court for the District of Delaware rejected these arguments. First, it held that many of the records were restricted under orders that were 14 years old, affirmed on appeal, and not subject to collateral attack at this time. As to other records, the court held that they were subject to privacy protections enacted by Congress in 2005, which created an exception to the presumption that records in bankruptcy cases are public documents. Finally, the court declared that the companies did not seek access to the documents for a proper purpose in claiming that the documents would support their lobbying activities. Instead, the court held that litigation activities served as the only proper purpose for such a motion.

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     The Minnesota Court of Appeals today held that claims on behalf of a 17-year-old girl who died when her medical implant failed were not preempted by the federal 1976 Medical Device Amendments.

      In Jones v. Medtronic, Inc., the court ruled that the trial court had mistakenly dismissed claims for manufacturing defects, failure to warn, and breach of express and implied warranty as preempted. Instead, the court held that the liability action paralleled federal requirements and therefore could proceed.

     Kaitlyn Jones suffered from congenital severe cerebral palsy with spastic quadriplegia. She was implanted with a Medtronic SynchroMed(R) II device to deliver periodic, controlled doses of medication to control her muscle spasticity. Due to undisclosed cycles of overinfusion and underinfusion caused by malfunctions, the medication was not delivered, resulting in Kaitlyn's death. 

     Accepting Medtronic's argument that the complaint filed on her behalf lacked sufficient specificity to constitute a parallel claim, the trial court dismissed the case. CCL President Robert S. Peck represented the plaintiffs on appeal, arguing that violations of federal regulations identified by the Food & Drug Administration in warning letters, recalls of the device, and a lawsuit seeking to enjoin its further use replicated product liability actions under Minnesota law. Citation of these federal violations in the complaint with the parallel elements of Minnesota law provided fair notice of the basis of Medtronic's liability, he said in briefs and the February 1 oral argument before the court. The Court of Appeals unanimously agreed.

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     A New Mexico District Court declared the state's 1976 limits on medical malpractice damages unconstitutional in a decision where CCL President Robert S. Peck testified as an expert witness. The cap would have reduced a $2.6 million jury verdict to $600,000 plus medical expenses had the cap not been invalidated.

    The court held that the cap violated the inviolate right to trial by jury in the New Mexico Constitution. Because the statutory cause of action created in 1976 to create the cap was duplicative of the preeexisting common-law cause of action for medical malpractice, the court ruled that the jury's authority in the case was set by the Constitution, which requires that the right to a jury trial exists "inviolate" from how it was "heretofore" practiced. The constitutional authority of the jury includes both the determination of the facts presented at trial and the damages incurred.

    The case, Siebert v. Okun, is likely to be appealed by the defendant-physician.

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     Representing the Arkansas Supreme Court, its chief justice, and two other justices of that court, CCL filed a motion for a temporary stay of discovery pending resolution of its motion to dismiss the case in the U.S. District Court for the Eastern District of Arkansas. The state supreme court and each of its justices were sued by a state trial court judge, alleging that his civil rights were violated when the high court ordered he be recused. The plaintiff-judge had participated in a protest and written a blog post related to a case then pending before him. The Supreme Court, upon a motion from the state attorney general, ordered the judge recused in that case and all similar matters.

     CCL filed a motion to dismiss, arguing that the Eleventh Amendment foreclosed suit against the state supreme court in federal court without its consent. Moreover, the lawsuit failed to state a claim because, among other things, the judge had no property right in hearing particular cases. The due process rights of the litigants to a fair tribunal that has not pre-judged the matter predominated over any right the judge might claim. Similar motions to dismiss were filed by other counsel on behalf of the remaining justices. 

     The plaintiff-judge has made clear that he seeks discovery that will delve into the internal deliberations of the court on the recusal order. The motion to stay, filed on behalf of all defendants, asks that the dismissal motions be determined before discovery commences.

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     CCL President Robert S. Peck re-joined the Board of Overseers of the RAND Institute for Civil Justice (ICJ) last week, attending its Spring meeting at RAND's headquarters in Santa Monica, California. Peck previously served on the Board from 2004 to 2016, the last three years as chair.

     The ICJ is a think tank that undertakes empirical research designed to make the civil justice system more efficient and more equitable. It is a part of the RAND Corportation, a noted policy research organization with a long history of assisting policymakers obtain the best information available to address issues they face.

     At the Board meeting, Peck suggested that the ICJ undertake new research based on recent U.S. Supreme Court decisions on personal jurisdiction that reduce the ability of plaintiffs to bring all parties responsible for the injuries before a single court at once that could then assess liability and damages. In her dissent in Bristol-Meyers Squibb Co. v. Superior Court, 137 S.Ct. 1773 (2017), Justice Sonia Sotomayor expressed the fear that these decisions will "curtail -- and in some cases eliminate -- plaintiffs' ability to hold corporations fully accountable for their nationwide conduct." Defendant corporations have cited Justice Sotomayor's dissent to claim that that indeed is what the Supreme Court held and intended, and some courts have agreed, holding that plaintiffs must file multiple lawsuits in different states to seek full compensation for their injuries. Research documenting this shift could inform the due-process analysis that undergirds decisions on personal jurisdiction, he said.

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     On March 12, 2018, CCL filed a letter with supplemental authority in the Minnesota Court of Appeals in Jones v. Medtronic, Inc., No. A17-1124. The case, which CCL President Robert S. Peck argued on February 1, involves a Medtronic implanted medical device that failed, killing the 17-year-old young woman whose life literally depended on it. The trial court had found the plaintiff's cause of action expressly and impliedly preempted because the allegations of manufacturing defects and other problems with the device did not point to specific violations of the application for approval submitted to the Food and Drug Administration, as well as because the claims of federal violations were supposedly attempts to enforce FDA requirements, an authority that the FDA holds exclusively. Peck, however, argued that the FDA's citation of Medtronic for numerous violations of federal regulations that were tied to the precise failures that Kaitlyn Jones experienced were sufficient to plead a parallel claim, particularly when Medtronic's application was not available to anyone but the FDA and Medtronic until a court ordered it produced in discovery.

      The March 12 letter advised the Court of a decision of the U.S. Court of Appeals for the Eleventh Circuit, Godelia v. Doe I, 881 F.3d 1309 (11th Cir. 2018), which was rendered after oral argument. In Godelia, the Eleventh Circuit explained a previous decision it had rendered, which the Jones trial court had relied upon to require greater specificity in the complaint. Godelia made clear that, in a case very similar to the Jones case, that specificity is not required. Instead, it issued a decision that tracked the argument Peck made in the Minnesota Court of Appeals.

     The Minnesota Court of Appeals has Jones under advisement.

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     CCL told a federal court that Nebraska had received sufficient compensation to offset its claim of $146,000 for past medical expenses paid on behalf of a catastrophically injured newborn when state law reduced her jury verdict by $15.5 million in a brief filed on the child’s behalf today.

     In S.S. v. Bellevue Medical Center, a child who suffered permanent brain damage in child birth due to substandard medical care won a $17 million verdict to cover a lifetime of care that the child will need. However, a Nebraska law mandated that the verdict be reduced to $1.75 million, a nearly 90 percent discount that will never be able to cover the child’s needs. CCL joined with the Omaha, Nebraska law firm of Cullan and Cullan, which tried the case, to challenge the reduction, but neither the federal district court nor the court of appeals were willing to be the first courts to apply recent Supreme Court precedent to invalidate the cap. The U.S. Supreme Court turned down review of the case.

    As the Supreme Court denied review, the Nebraska Department of Health and Human Services asked the federal district court to validate the State's entitlement of $146,000 of the remaining judgment. CCL opposed the motion on several grounds. Under Nebraska’s law capping damages in medical malpractice cases at $1.75 million, negligent health-care providers are responsible, through their insurance for the first $500,000. All amounts above $500,000 are paid by a state-run Excess Liability Fund. CCL's brief argued that the State itself benefitted from the reduction in the child’s compensation and any amount it might have claimed as a reimbursement for Medicaid expenditures from the lawsuit were more than satisfied by that reduction in the amount the State had to pay S.S.

      Alternatively, if the court were to determine that Nebraska still holds a valid lien against the judgment that was not satisfied when the verdict’s was diminished, CCL argued that, because Medicaid liens are only paid from the amounts allocated intended to compensate for past medical expenses the same proportionate reduction should apply to the lien. After all, the reduction was effectuated as a matter of state law. The same rule CCL described is typically employed when a case settles for less than full value. It should also apply here, reducing the $150,000 claimed lien to $15,000. In addition, any remaining lien should be further reduced proportionately by attorney fees and costs, under the common-fund doctrine. Finally, the CCL brief argues that no lien should be payable until the beneficiary’s death and, then, only to the extent that any monies from the judgment remain.

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CCL filed a brief opposing Wells Fargo's attempt to take an early appeal in Philadelphia's lawsuit against the banking giant over its discriminatory mortgage practices. In the case, in which CCL is part of a team of lawyers representing the CIty of Philadelphia, the U.S. District Court denied Wells Fargo's motion to dismiss, rejecting three different grounds.

First, Wells Fargo claimed that the city's injuries did not meet the directness test the Supreme Court mentioned but left undefined in CCL's victory in Bank of America v. City of Miami last term. Second, it claimed that the city's injuries fell outside the two-year statute of limitations. Finally, it argued that the city's disparate-impact claims were inadequately pleaded. The court found all three arguments to be without merit. 

Rather than proceed with the case in the usual fashion, Wells Fargo moved to have the district court's order certified for interlocutory review under 28 U.S.C. 1292(b). CCL's brief in opposition filed today explained why the order does not qualify for immediate appeal and asked the court to deny permission.

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