News

     CCL filed a amicus curiae brief in the U.S. Supreme Court on behalf of state and local government groups, arguing that appeal from a remand order that rejects removal on federal-officer grounds, when other removal grounds was also asserted, is limited to that one issue. 

     In addressing this technical civil procedure issue, CCL's brief argued that the removal statute's text, Congress's intent, congressional ratification of prior court precedent, and legislative history all support affirming the decision rendered by the Fourth Circuit in this case, BP Plc v. Mayor and City of Baltimore, No. 19-1189. Federalism principles further support the reading advanced by CCL's brief, because Congress would only abrogate state court authority through the most explicit statutory direction, as past Supreme Court decisions have required. 

     The brief also defends the capability and impartiality of state courts when confronted with issues of this kind. Furthermore, it argues that BP's myopic focus on the word "order" in the statute as authorizing an appeal of all grounds rejected by a district court in a single ruling takes the word out of context. It cites the late Justice Scalia's book on interpretation to explain that a good "textualist" is neither a literalist nor a nihilist, but that BP's approach would make the Court both. 

      Baltimore, like a number of states and local governments, brought what are largely public nuisance actions under state law in state court, seeking relief from oil companies for their contributions to climate change. BP and the other oil company defendants tried to remove the case from state court to federal court, claiming that its responsibility for climate change was a function of following the federal government's directions and making them the equivalent of a federal officer, who has a right to have any case against that officer heard in federal court. BP does not really defend that ground, but uses it as a basis to bring its other grounds as a basis for appeal. Federal law does not allow the other bases to be grounds for being in federal court. CCL argues that this misuse of federal-officer removal is a matter of gamesmanship. Any competent lawyer would make the allegation in order to obtain appellate rights for more serious arguments.

     In the amicus brief, CCL represents the National Conference of State Legislatures, the Council of State Governments, the National Association of Counties, the National League of Cities, the U.S. Conference of Mayors, the International City/County Management Association, and the International Municipal Lawyers Association.

     CCL President Robert Peck moderated a panel of Supreme Court advocates discussing how arguments have changed during the COVID-19 pandemic. Peck posed questions and shared insights with Tom Goldstein of Goldstein & Russell and co-founder of SCOTUSBlog, Deepak Gupta of Gupta Wessler, and Roman Martinez of Lathan & Watkins.

     The three panelists had argued cases during 2020, using the telephone format that the Court had adopted. The hour-long conversation covered the technological set-up each used, the changes they made to the way they normally prepare for Supreme Court arguments, the surprises that occurred that required last-minute adjustments, their tips for dealing with each justice having a short period of time for questioning in order of seniority, and how the change might affect oral arguments when they return to being in-person.

     The panel was sponsored by the ABA Litigation Section's Appellate Advocacy Committee.

     Today, CCL filed its reply brief in City of Miami Gardens v. Wells Fargo & Co., pending on a writ of certiorari in the U.S. Supreme Court. Representing Miami Gardens, CCL argues that Wells Fargo distorts the record in attempting to avoid review in the Supreme Court.

      When the case was before the U.S. Court of Appeals for the Eleventh Circuit, that court raised a new issue that had not been briefed or before the district court just before oral argument. That issue, whether there was record evidence of the City's injuries from allegedly discriminatory mortgage loans the bank had made, had not been part of the threshold inquiry that the district court had limited itself to. Because the district failed to permit discovery on that issue, CCL's Robert Peck argued that the issue was not ripe from review and instead remained at the pleadings stage, where allegations were sufficient. 

     Nonetheless, the appellate court ruled that it was a fair inquiry and held that Miami Gardens lacked Article III standing to pursue its case. CCL then sought rehearing en banc, arguing that this procedural tactic had been condemned by the U.S. Supreme Court in Alabama Legislative Black Caucus v. Alabama (2015). The Eleventh Circuit denied review, but the original panel wrote an extensive defense of its use of the procedural device. Two judges on the Eleventh Circuit dissented from the denial of rehearing en banc, likening the situation to a teacher who confiscated a student's pencil before an exam and then penalized the student for turning in a blank sheet of paper.

     CCL petitioned for certiorari, and Wells Fargo opposed. The International Municipal Lawyers Association filed an amicus brief in support of the petition. Today's filing responded to the Wells Fargo brief. The case is expected to be reviewed by the Supreme Court at its January 8 conference.

     CCL joined co-counsel Levanthal Puga Braley in filing a petition for a writ of certiorari in the Colorado Supreme Court to restore the jury's verdict in Smith v. Surgery Center, a medical malpractice case.

     The case began when Robbin Smith sought treatment for lower back pain in anticipation of standing for a long time at her son's upcoming wedding. Instead, because the doctor improperly used a drug that had a black-box warning against epidural use, Robbin suffered paralysis in her lower body and ended up having to watch the ceremony by video.

      The doctor settled his liability, but the case continued against the ambulatory surgical center where the treatment took place. The center's formulary supplied the drug, Kenalog, despite knowing of its planned use, the warning against that use, and which was confirmed four times by center nurses who were part of the surgery. While the center claimed it could not control its use by the doctor, it subsequently passed a rule that gave it that control. In addition, the center violated a host of state and federal regulations designed to assure patient safety at centers like the defendant, which the jury found to constitute negligence per se. Finally, by interposing its own "informed consent" form that failed to inform Robbin of the warning against Kenalog's use for her procedure, the jury found a violation of standards of care. The jury awarded damages of $14.9 million to Robbin and her husband, which the trial court reduced to $7 million under the state non-economic damage cap while also rejecting a constitutional challenge to the cap.

     Both parties appealed to the state court of appeals, with the Surgery Center appealing its liability and the Smiths appealing rejection of their constitutional challenge. The Court of Appeals, however, took away the judgment, finding that the Surgery Center cannot be held responsible for the injury due to Colorado's prohibition on the corporate practice of medicine, that the regulations violated were more oriented toward licensure than safety, and that the center could not be liable for failing to provide informed consent, even if assuming that duty, because it was not its responsibility. As a result, the constitutional issue was not addressed.

     The petition filed today asks the Colorado Supreme Court to review those determinations.

     CCL President Robert S. Peck argued that a federal district court in Virginia was obliged to take up a constitutional challenge to Virginia's $2 million limitation on damages in medical malpractice cases before undertaking trial of the case today.

     In J.S. v. Winchester Pediatric, a young boy was catastrophically injured, requiring life-long care, as a result of medical negligence after being involved in an automobile collision. One set of defendants settled for the entire damage limitation of $2 million. However, because of the statutory limit, the second defendant is immunized from liability, even if found to have been at fault and a jury determination that the damages exceed the $2 million limit. For that reason, Peck argued that the district court did not have Article III authority under the Constitution to try the case. The Supreme Court has made clear that to constitute a "case" or "controversy" within the authority of the federal courts there must be an injury in fact fairly traceable to the defendant's conduct for which the court can give relief. Because no relief could be had as a result of the damage-cap statute, Peck told the court it was without authority to try the case. However, he said the constitutional challenge to the statute demonstrated the requisite case or controversy because J.S. would be shut out of his day in court as a result of the state law and that a declaration of unconstitutionality could remedy this injury.

     The defendant and the Virginia Attorney General's office both argued that a trial needed to take place before the constitutional question could be taken up, in order to be sure there was liability and a verdict above the cap. Neither, however, was able to explain how the court had Article III authority to conduct the medical-malpractice trial. 

     CCL President Robert S. Peck spoke about trends and issues in personal jurisdiction, COVID-19 litigation and effects on the courts and jury system, and qualified immunity in a wide-ranging panel discussion, sponsored by the Law and Economics Center at George Mason University's Antonin Scalia Law School. The panel was part of a month-long virtual conference for judges, academics, and lawyers.

     Peck was part of a panel moderated by U.S. District Court Judge Sarah Pitlyk of the Eastern District of Missouri. Also on the panel were Kalpana Srinivasan, managing partner of Susman Godfrey in Los Angeles and John Beisner of Skadden Arps in Washington, DC. 

     Peck suggested that the justices themselves expressed some dissatisfaction with the direction recent personal jurisdiction cases had taken and had overstated some of the primary considerations when they heard the Ford cases that came from Montana and Minnesota in October. He also suggested that their attempt to carve federal cases out of the strict approach taken in state cases are likely to come home to roost soon, forcing them to confront different aspects of the latter's strictness.

    On COVID-19 proposals for immunity, Peck explained why tort law incorporates a type of flexibility that acknowledges unusual situations and adjusts to a sensible standard of care so that businesses and others who do not take precautions are properly held liable, while those that do will rarely be subject to suit. For that reason, immunity proposals are ill-considered because they fundamentally excuse irresponsible behavior. Peck also suggested that the technological innovations that have expanded access to the courts during the pandemic are probably here to stay, but expressed concern that we are losing familiarity with and support for jury trials, which remain essential to our civil justice system.

    Finally, Peck thought that recent developments had exposed problems with the judge-made doctrine of qualified immunity that immunizes government officials from civil rights liability when the right was not "clearly established" has begun to show enough problems that changes to the doctrine cannot be far off.

     CCL, along with trial lawyers in Texas, filed a challenge to the non-economic damage cap in medical malpractice cases that was enacted 17 years ago. The case, a purported class action seeks the "incorporation" of the Seventh Amendment's right to trial by jury, meaning its application to the States, and a declaration of unconstitutionality for the cap.

     In recent years the U.S. Supreme Court has expanded the "incorporation" doctrine to include the Eighth Amendment's excessive fines clause and the Fifth Amendment's unanimous criminal jury requirement. Under the criteria used by the Court, the Seventh Amendment qualifies as well, the new lawsuit contends.

     The cap will likely be defended by the Attorney General's office in Texas.

     In a reply brief filed in the Fifth Circuit, CCL argued that treating Federal Rule of Civil Procedure 4(k)(2) as just another form of general jurisdiction renders it facially unconstitutional, stating that no court should casually render such a constitutional determination. 

     In Douglass v. NYK Line, the Fifth Circuit will decide whether the "at home" standard used for general jurisdiction in state courts applies to personal jurisdiction in a federal cause of action filed in federal court. Rule 4(k)(2) was written to fill a gap in federal personal jurisdiction and, by its terms, permits federal courts to exercise personal jurisdiction over companies with substantial national contacts but insufficient presence to be subject to jurisdiction in a state court. As the CCL brief points out, if a company has a sufficient presence to be at home in the U.S., then it is at home in one of the states -- and Rule 4(k)(2) cannot apply. As a result, imposing an "at-home" requirement on top of Rule 4(k)(2) as a matter of Fifth Amendment due process renders the rule null and void.

      The Douglass case arises from a collision between the U.S.S. Fitzgerald, a U.S. Navy destroyer, and a much heavier container ship. The collision killed seven American sailors and injured 40 others. The case was filed in the U.S. District Court for the Eastern District of Louisiana, which dismissed the matter for lack of jurisdiction over the Defendant, a Japanese corporation.

     The federal First Circuit today held that denial of grounds for removal from state to federal court based on claiming to be a federal officer, while subject to appeal, does not open the door to appealing any other basis asserted in the removal. The decision in State of Rhode Island v. Shell Oil Company, a lawsuit over the oil companies' misrepresentations about the effects of oil use on climate change, is one of a number of cases in which federal courts have reached identical conclusions, with only some older cases in other appellate courts going the other way. In today's case, CCL represented the National League of Cities, the U.S. Conference of Mayors, and the International Municipal Lawyers Association as amicus curiae, or friends of the court.

     A similar decision from the Fourth Circuit in a case brought by Baltimore was accepted for review by the U.S. Supreme Court in September. Briefing is now underway in the Baltimore case.