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     CCL President Robert S. Peck spoke April 23 on bringing constitutional challenges at a seminar for the Workers' Injury Law and Advocacy Group (WILG) and then joined a reception at a conference of the International Municipal Lawyers Association (IMLA), where he received its Amicus Award.

     The WILG seminar introduced its lawyer-members to a new constitutional challenge resource developed by the organization. Members have grown concerned that states are passing laws that limit the eligibility and scope of benefits available through workers compensation to those injured in the workplace. Peck's remarks about the art and pitfalls of constitutional challenges covered different approaches and difficulties that the litigation often involves.

     The IMLA awards reception recognized Peck for his pro bono amicus brief in BP pllc v. Mayor and City Council of Baltimore, filed in the U.S. Supreme Court. The case was initiated by Baltimore in state court against major oil companies for their contributions to climate change and its impact on the city. The oil companies removed the case to federal court, but the federal court ordered the case remanded to state court when it found none of the grounds for removal were valid. Under a federal statute, an immediate appeal of that order was permissible because one of the grounds asserted for removal was that the oil companies' alleged liability was for work it did at the direction of the federal government. The U.S. Court of Appeals for the Fourth Circuit held that the federal government did not direct the oil companies and refused to consider alternative grounds for removal because the federal law giving a right of appeal was limited to "federal-officer" grounds.

      The scope of the authorized appeal was the issue before the Supreme Court. At oral argument, the IMLA brief written by Peck was mentioned twice, a testament to the importance of issues only raised by that brief. A decision in the case is still forthcoming.

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     A CCL-authored amicus brief asks the Missouri Supreme Court to strike damage limitations enacted by the state legislature as a violation of the right to trial by jury. The brief was filed on behalf of the Missouri Association of Trial Attorneys and the American Association for Justice.

    In 2011, CCL won a decision that struck the previous damage cap on jury-trial grounds. In the decision, Watts v. Lester E. Cox Med. Cntrs., the state supreme court held that a cap on a common-law cause of action invades the jury's province as the trier of facts, which includes the determination of compensatory damages. In response to that ruling, the Missouri General Assembly seized on the common-law cause of action analysis and enacted a "statutory cause of action" for medical malpractice. The new action, however, was identical to the old one, except for the institution of caps. 

     In the underlying action, the plaintiff alleged her physicians were negligent during childbirth and in post-partum care, requiring the mother to undergo multiple surgeries and suffer permanent injuries. The jury rendered a verdict for the plaintiff, but its assessment of $1 million in noneconomic damages was lowered by the trial court due to the cap.

     The amicus brief filed by CCL argues that Watts was correctly decided, that respected studies by independent academics demonstrate that the rationales behind damage caps are invalid, that merely codifying the common law does not transform a common-law cause of action into a statutory one, and that the jury-trial right applies to statutory causes of action that are analogous to ones that existed at common law. For those reasons, the Court should strike the new damages caps for the same reasons it struck the earlier version, the brief concludes.

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    Two different federal district court judges denied motions to dismiss in three cases where an Illinois nursing home was sued over injuries and deaths due to COVID-19 and the nursing home's failure to take appropriate measures to stop the virus's spread in its facility.

    In the three cases filed against Westchester Operating Company, the nursing home operator, Judges Thomas Durkin and Manish Shah held that the separate claims for negligence and willful and wanton misconduct survive the motions to dismiss because the pleaded complaints allege that either Winchester was not eligible for the immunity that the Illinois Governor granted health care providers by executive order or that the pleading of willful and wanton misconduct satisfied an exception to the executive orders.

    The plaintiffs alleged that Westchester failed to take steps to protect its residents from the pandemic, affirmatively punished residents who complained, ordered staff who contracted COVID-19 to continue to work, and rendered no assistance to the State of Illinois that would qualify it for immunity under the Governor's orders. In moving to dismiss Westchester argued that the immunity order abrogated the Illinois Nursing Home Act's negligence standard and that the Act provided no liability for willful and wanton misconduct. Both judges found the arguments without merit. The three cases, filed in the U.S. District Court for the Northern District of Illinois will now proceed.

    The plaintiffs are represented by Levin and Perconti, as well as the Center for Constitutional Litigation, whose Robert S. Peck wrote the briefs opposing the motions to dismiss.

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