News

Peck Writes Blog Posting on Overturning Precedent

August 29th, 2021

     In a post on the Appellate Advocacy Blog, CCL President Robert S. Peck wrote about different strategies for arguing against the application of adverse in-circuit precedent. 

     The blog post is available at What To Do When Faced With Adverse In-Circuit Precedent.

Judge Sets Briefing Schedule in CCL Challenge to Texas Medical-Malpractice Cap

August 27th, 2021

    Judge Lee Yeakel set a schedule for briefs and argument in a case challenging the cap on medical-malpractice damages that Texas enacted nearly 20 years ago. In Winnett v. Frank, CCL has joined with Hartley Hampton of Hampton & King to argue that the cap violates the Seventh Amendment's right to trial by jury. 

    At a status conference requested by the parties, Judge Yeakel gave each side an October 20th deadline for opening briefs and a December 3 deadline for reply briefs. The case will be argued in January.

    Texas amended its state constitution to permit the legislature to enact the damage-cap statute. As a result, the only test of its constitutionality available is through the U.S. Constitution. In recent years, the Supreme Court has found that parts of the Bill of Rights that had not been applied to the States are "incorporated," by the Fourteenth Amendment's due-process clause. One of the outlier individual rights that has yet to be applied to the states is the civil jury-trial right. Winnett seeks to correct that oversight and invalidate the damage cap.

CCL Urges Supreme Court to Revive Civil Rights Lawsuit

August 26th, 2021

     CCL urged the Supreme Court to revive a civil-rights lawsuit filed on behalf of a disabled person that had been dismissed because the plaintiff only suffered emotional-distress damages. CCL's amicus brief was filed on behalf of the American Association for Justice in Cummings v. Premier Rehab Keller, which the Court will take up in the coming term.

     Under the Rehabilitation Act, recipients of federal funds are obligated not to discriminate against persons with disabilities. In this case, a woman who needed a sign language interpreter sought physical therapy from the defendant, a recipient of federal funding, but was turned away because of the request for an interpreter. She tried going to another physical therapy provider, but found it ineffective. The defendant was the only local provider capable of what she needed. When she returned and was again refused service, she sued. 

     The federal district court found that she had no cognizable damages, having only sued for the emotional distress she suffered. It likened emotional distress damages to punitive damages, which the Supreme Court had held were unavailable for statutes like the Rehabilitation Act, which could only provide remedies similar to those available in contract cases because the federal funding created a contract-like obligation. The U.S. Court of Appeals for Fifth Circuit affirmed, but lodged its reasoning in the rarity with which emotional-distress damages are awarded in contract cases and because those scarce instances would not have provided defendants with notice of these damages being a consequence of its discriminatory act.

    While the plaintiff, remedies scholars, and the U.S. government all focused briefs on the long tradition of emotional-distress damages being available in contract cases, particularly where the breach of contract was likely to cause distress, CCL's brief demonstrated that the underlying bias against emotional-distress damages was ill-taken. It showed that empirical studies demonstrate that juries do a good job assessing the damages, align closely with the severity of the injury, and largely duplicate the assessments that are made by judges in bench trials. It said that the assumption held by the lower courts and by the defendant that emotional-distress damages are unbounded because they have no discernible market value was wrong in practice and should not influence the legal determination before the Court.

CCL Files Amicus Brief for Local Government Groups in Eighth Circuit Climate Change Case

August 25th, 2021

     Arguing that state and local governments have the same rights as other plaintiffs to choose state, rather than federal court, a CCL amicus brief asserted that there was no legitimate basis for oil companies to remove a climate-change lawsuit brought by the State of Minnesota to federal court. The brief, on behalf of the National League of Cities, the U.S. Conference of Mayors, and the International Municipal Lawyers Association, focuses most heavily on the oil industries' argument that federal common law completely displaced the state causes of action asserted in the case. 

     In June, the U.S. Supreme Court held that a similar action brought by the City of Baltimore required lower courts to review all the claimed bases for federal-court jurisdiction when a defendant asserts that it was acting at the direction of a federal officer, even if that assertion fails as a matter of law. In the Minnesota case, the oil company defendants made that argument but did not seriously pursue it on appeal, emphasizing the other grounds that would permit it to be in federal, rather than state, court. 

     As for the "federal common law" argument, the amicus brief argued that the Clean Air Act displaced any federal common law and explicitly opened the door to state causes of action, such as the ones filed by Minnesota. The amicus brief was filed with the Law Offices of William Rossbach.

CCL's Peck Helps Oppose Nursing Home Motion to Dismiss

August 19th, 2021

     In a filing in an Illinois trial court, lawyers for the estate of a nursing home resident who died from COVID-19 opposed a motion to dismiss that argues a gubernatorial executive order gave nursing homes immunity from liability for "rendering assistance" to the State in its fight against the health-care crisis. 

    The brief opposing dismissal in Heimbrodt v. Geneva Nursing, written by CCL's Robert S. Peck as consulting counsel, argues that the nursing home did not qualify for immunity because it rendered no assistance to the State but only continued its operations as it had before, that any immunity that could conceivably be applicable had to be directly related to the care of the decedent, which it was not, and that, if the immunity extended so far as to cover the defendant nursing home, it violated the separation of powers, equal protection, special legislation, and takings provisions of the Illinois Constitution.

    The defendant will have an opportunity to file a reply brief in the case. 

CCL's Peck Participates in Moot Court in PLCAA Challenge

August 19th, 2021

   In Gustafson v. Springfield, Inc., the Pennsylvania Superior Court will re-hear en banc a challenge to the application and constitutionality of the federal Protection of Commerce in Arms Act (PLCAA), a law designed to provide gun manufacturers and retailers with immunity from state common-law causes of action. An earlier panel of the court had struck down the federal statute for overstepping Congress's Commerce Clause powers and violating Tenth Amendment federalism guarantees. 

    Gustafson is a products liability action that asserts the gun manufacturer was responsible for the death of a youth because the gun lacked certain safety features. The manufacturer successfully moved to dismiss the case, asserting that it was protected by PLCAA. On August 25, the court will re-hear arguments about PLCAA's applicability and constitutionality. The case will be argued by Jonathan Lowy, legal director of Brady United. In preparation for the argument, Lowy underwent a practice round with CCL's Robert S. Peck, along with two other frequent U.S. Supreme Court practitioners. 

CCL's Peck Pens Appellate Advocacy Blog Post on Overturning Supreme Court Precedent

August 15th, 2021

     With the filing of three briefs in a 10-day period, all requesting the Supreme Court overrule prior precedent, CCL President Robert S. Peck's biweekly contribution to the Appellate Advocacy Blog focused on how each brief made its argument that the existing precedents had proven unworkable and the lessons that could be learned from each.

    The Appellate Advocacy Blog is a part of the Law Professors Blog Network. Peck's posting can be found at Requesting Overturning of Precedent.

CCL's Robert S. Peck Attends ABA Annual Meeting Governance Sessions

August 10th, 2021

      CCL's Robert S. Peck attended the Council meetings of the ABA's Tort Trial and Insurance Practice Section (TIPS) and its House of Delegates meetings during a hybrid convention. The meetings set policy for the TIPS and the ABA as a whole.

      Peck is a member of the TIPS Council and one of the TIPS representatives to the House of Delegates.

Status Hearing Puts First Amendment Case on Schedule

August 6th, 2021

     In a brief status hearing, federal Judge Allen Winsor consulted with counsel for the opposing parties and set an initial schedule to move the First Amendment challenge filed by CCL for the Restoration Association of Florida and Apex Roofing and Reconstruction forward on August 6.

      The case, filed in the Northern District of Florida, challenges a new state law that limits advertising and other marketing efforts by roofing contractors in an effort to discourage homeowners from making insurance claims for home damage. Another Northern District judge has already preliminarily enjoined the advertising prohibition. The plaintiffs are represented by CCL's Robert S. Peck

CCL Files En Banc Brief Arguing to Overturn 2016 Decision

August 2nd, 2021

     In a supplemental brief filed in the U.S. Court of Appeals for the Fifth Circuit, CCL's Robert S. Peck asked the court to overturn a 2016 decision on personal jurisdiction that stands in the way of litigating seven deaths and 40 injuries to U.S. Navy personnel when a container ship struck the U.S.S. Fitzgerald, a U.S. Navy destroyer in 2017 in the Sea of Japan. 

      The case was originally dismissed in federal district court in New Orleans because the judge ruled that the Japanese company operating the container ship was not subject to personal jurisdiction in the United States because it is not "at home" in this country. On appeal, Peck argued that the "at-home" requirement essentially rendered a federal rule of civil procedure unconstitutional as a product of due process, effectively saying that the Supreme Court and Congress got it wrong when Rule 4(k)(2) was promulgated. A panel of the Fifth Circuit agreed with him, but found that a 2016 precedent was an obstacle to ruling in the sailors' favor under the rule of orderliness. 

     Peck petitioned the Fifth Circuit to take up the matter en banc, where it would have the authority to overrule the errant precedent. The court agreed to do so, and today's filing was a supplemental brief in support of why the precedent should be overruled. Oral argument before the 17 members of the Court is scheduled for September 21. The case is Douglass v. Nippon Yusen Kabishiski Kusen.