News

     In a California medical-malpractice case, CCL joined trial counsel in filing an opposition to the defendant's attempt to reduce the jury's verdict to $250,000 in noneconomic damages and to pay the damages to be incurred in the future over time. 

    In Merlo v. Pristine Surgery Center, a jury found an ambulance company and its paramedics liable for putting the patient in a permanent vegetative state by misplacing a breathing tube and assessed $50 million in damages. Of that amount, $20 million comprised noneconomic damages, which state law requires be reduced to $250,000. The defendant had turned down a pre-verdict settlement offer of $5 million for the entire matter.

    The newly filed brief challenges the constitutionality of the damage-cap law and its provision allowing periodic payments of future damages. The cap, the brief argues, violates the right to a jury trial, among other things. The periodic payments provision, it further contends, creates a windfall for defendants because the jury first is instructed to reduce the verdict to present value, discounting the future damages as a result on the assumption that the future damage money could be invested and grow over time. A periodic payments plan then discounts it again, because it withholds that money so it cannot be invested and grow, violating equal protection and due process, the CCL filing argues.

     In a challenge to the Texas statute that limits damages in medical malpractice cases brought in federal court, CCL filed its opposition to a motion to dismiss made by the Texas Attorney General on behalf of the state judicial defendants. The opposition also questioned the propriety of the Texas Attorney General filing a response in support of his own motion as both an attempt to evade the page limits on motions and improper because court rules only permit a response from those opposing the motion.

     The opposition noted that Section 1983 permits injunctions against enforcing state laws against state judges after a declaratory judgment was obtained. The current motions before the court seeks that declaratory judgment. The U.S. Supreme Court had previously permitted actions against judges who enforce unconstitutional laws.

     Subsequent to CCL's filing, the U.S. Supreme Court held that Texas judges could not be defendants in a Section 1983 preenforcement challenge to a statute in the high-profile S.B. 8 case, in which abortion providers sued over a new state vigilante bill that put a bounty on those who perform or assist in obtaining abortions. As a result, CCL will dismiss the judges in its case and proceed against the other defendants. 

     CCL's Robert S. Peck told a federal court in Florida that a state law passed earlier in the year that restricted marketing efforts by roofing contractors violated commercial free speech and due process rights. Representing the contractors, Peck argued that the legislature's attempt to suppress marketing to lower the number of claims made by homeowners against their insurance policies improperly suppressed speech.

     The law prohibited mentioning the availability of insurance in advertising and limited a number of other marketing efforts to help insurers avoid having to pay repair or replacement costs for roofing. The State estimated that a small percentage of claims made were fraudulent, but placed the onus for those claims on marketing efforts, including offers of discounts and gift cards for homeowners who hired the contractor. Florida experiences a significant amount of extreme weather from hurricanes that is primarily responsible for home damage.

     The court heard the contractors' motion for a preliminary injunction against the measure and its enforcement. A ruling is expected shortly.

     CCL President Robert S. Peck passed along advice from a federal circuit judge to "Answer the Question" in his biweekly posting on the Appellate Practice Blog today.

     The advice came from Fifth Circuit Judge James Earl Graves, Jr. on November 13 during the 2021 Summit of the Appellate Judges Education Institute. Judge Graves lamented the fact that, too often, oral advocates are so determined to make their point that they fail to answer the judges' questions. Because it is the judges who will decide the case, answering the question is critically important, even when the question indicates confusion on the questioner's part.

     During a discussion moderated by CCL President Robert S. Peck, twenty-four state supreme court chief justices discussed lessons learned during the pandemic and what the courts might take away from the advancements in technology and remote access that the courts were required to adopt. 

     A consensus emerged that, although live presentations are generally preferable, the option of providing remote opportunities to interact with the court for shorter sessions should be available to save time and money in traveling to court for a brief audience with the judiciary. Several states established remote access points to enable those without Internet access or computers to take part in court proceedings.

     The session was part of the National Center for State Courts (NCSC) meetings in Washington, DC. The Conversation with the Chief Justices is held in conjunction with the Conference of Chief Justices, the NCSC Lawyers Committee, and the NCSC General Counsels Committee. 

     CCL's Robert S. Peck told judges and appellate lawyers meeting in Austin, Texas that the current Supreme Court term will expose even more fissures between the justices on issues that have implications for the nation's political climate than last term when Justice Amy Coney Barrett joined the Court.

      In a morning session of the 2021 Appellate Judges Educational Institute, Peck joined Washington, DC lawyer Kannon Shamugam and Texas lawyer Jaime Santos in previewing, and, in some cases reviewing, October Term 2021. The discussion included cases on abortion, guns, religion, and civil rights. The four-day summit is one of the premier appellate education events each year and is sponsored by the National Judicial College.

     Resuming the process of writing a restatement of the law on consumer contracts after a two-year hiatus due to controversy, the American Law Institute conducted a virtual members' consultative group meeting on the newest draft sections. CCL's Robert S. Peck, as a member of the consultative group, attended the meeting.

     When what was intended to be a final draft was discussed in May 2019, members objected to provisions that many regarded as dated and insufficiently protective of consumer interests. Only the definitional section of the restatement won approval as the following sections were debated at length without a vote. The new draft attempts to address some of the criticisms but, at the meeting, still proved subject to much questioning and to many suggested changes. A revised draft is expected next year.

     In a reply brief filed in the Ninth Circuit, CCL joined co-counsel in arguing that the district court misunderstood federal and state law in eliminating one cause of action, limiting evidence, and reducing punitive damages in bellwether cases that opted out of the global settlement of the Volkswagen emissions scandal.

     For a nine-year period of time, Volkswagen employed a "defeat device" in certain cars sold as "green" vehicles that tricked emissions tests into registering low carbon emissions rates when the cars actually emitted 36 times the permissible levels of pollution. Buyers who purchased the cars across the United States sued over the misrepresentations. Volkswagen, which pleaded guilty to charges emanating from the scandal in both the U.S. and in Europe, settled with most buyers in a multi-district litigation heard in federal court in San Francisco.

     Nine purchasers who opted out of the settlement chose to try their cases. Under the terms of the joint trial, VW admitted liability but challenged the claimed damages. The purchasers brought several causes of action, including claims under California's lemon law and its consumer-protection law. However, the court treated the settlement offer made prior to the lawsuits as a bona fide attempt to settle the claims, throwing out the consumer-protection cause of action. The reply brief asserts that this was error because the settlement did not qualify as an offer under the law and included a waiver of other claims, which is inconsistent with California precedent. The court also ruled the cars fit for driving, even though the California statute has more rigorous requirements, including one that bars mislabeling the vehicles.

    Four of the plaintiffs won jury verdicts of $25,000 each in punitive damages. The court reduced those verdicts to a 4:1 ratio, putting each punitive-damage award under $10,000.  The reply brief argued that this misconstrued Supreme Court precedent that has rejected mandatory ratios and permits higher punitive damages when the compensatory damages are small.

    The case is due to be argued December 10.

     With the Biden Administration's vaccine mandate for large employers due to go into effect in January, the Fifth Circuit and several other courts are considering challenges that seek to stop the mandate. In a story on the Bloomberg Law website, CCL's Robert S. Peck is quoted that, strategically, the administration might wait to see what different courts decide initially before seeking the U.S. Supreme Court's intervention, given that there is still time before the mandate is due to go into effect.

     The story can be found at White House Biding Its Time in Fight Over Shot-or-Test Mandate.

     CCL President Robert S. Peck argued against a suggestion to rename the Supreme Court building after the first Justice John Marshall Harlan, a topic of discussion because of an advocacy piece published by Politico. In his biweekly post in the Appellate Advocacy Blog, a part of the law professors blog network, Peck called the suggestion provocative, but ultimately inconsequential because it was unlikely to occur.

     The suggestion by Sarah Isgur, nonetheless, was fun to discuss, Peck said, because it caused some reflection both on the Court and Justice Harlan. Still, he concluded that a building dedicated to the rule of law and not of men should not be named after any individual. Moreover, to Isgur's suggestion that it would help tell the Court's story, Peck said that the Court's story was better told through its decisions. The blog posting can be found at A Provocative Suggestion to Name the Supreme Court Building After a Single Justice.