CCL President Re-Joins RAND Institute for Civil Justice Board

March 17th, 2018

     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.

CCL Files Supplemental Authority in Medical Device Preemption Case

March 12th, 2018

     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.

Brief Opposes Nebraska’s Attempt to Reduce Compensation to a Catastrophically Injured New Born After Already Taking Away 90 Percent of the Jury’s Verdict

March 5th, 2018

     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.

CCL Files Response to Wells Fargo in Philadelphia Case

March 1st, 2018

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.

CCL Joins Legal Team Representing City of Sacramento in FHA Lawsuit Against Wells Fargo

February 23rd, 2018

     Today, the City of Sacramento filed a federal action against Wells Fargo for discriminatory lending practices that charged minority borrowers more than non-minorities. CCL joined the legal team representing the city in this action.

     Similar cases in which CCL is a co-counsel are pending on behalf of the cities of Miami, Miami Gardens, Philadelphia, and Oakland.