News

     In a member consultative group meeting on proposed changes to the Restatement of Law (Torts) on remedies, the American Law Institute is considering changes that both update and advance the law governing remedies in tort cases. The meeting, in which CCL's Robert S. Peck participated, reviewed the first initial draft of parts of the new Restatement.

     On a luncheon panel sponsored by the RAND Institute for Civil Justice and the Feinberg Center Risk Management and Compensation, CCL President Robert Peck suggested that new procedural rules for cases assigned by the Judicial Panel on Multidistrict Litigation were not needed, but that some rethinking of the system would help.

     Peck was joined on the panel by University of Connecticut law professor Alexandra Lahav, experienced plaintiffs' MDL attorney Christopher Seegar, Bayer general counsel Scott Partridge, and U.S. District Court Judge Brian Martinotti.

     The panel was organized around the theme of when is an MDL too big. MDLs now constitute more than half the federal docket, in large measure filling a void left by new decisions that discourage the use of class actions. Recent MDLs in the news include lawsuits over opioids, Roundup weed killer, and the BP oil spill.

     While Partridge bemoaned the size of the cases, calling it "bet-the-company" litigation, Seegar advocated allowing some creativity in reaching solutions, giving the example of his work in the NFL concussion litigation. Peck suggested greater use of subclasses and additional judges when MDLs get bogged down due to size and a single presiding judge, as well as recognition of opportunities to allow individualized justice in the context of the aggregation of cases.

     The MDL system was originally intended to clear out common pretrial issues efficiently, but has developed into a means of disposing of the mass of litigation through settlement. Professor Lahav said this was a function of the concept that, if you build it, they will come.

     In his most recent contribution to the Appellate Advocacy Blog, CCL President Robert S. Peck posted a discussion entitled "Qualifying Qualifying Immunity." The blog post discusses two recent U.S. Supreme Court per curiam decisions reinstating qualifying immunity for police officers, as well as CCL's experience with the judge-made doctrine. 

     Despite its long existence, the doctrine of qualifying immunity continues to have uneven application, especially between circuits, and applications that can fairly be described as insensible.

     In a case in which CCL assisted the Levin Perconti law firm, a federal judge in Illinois granted the plaintiffs' motion to remand the case to state court where the defendant nursing home had removed it to federal court. Martin v. Petersen Health was brought on behalf of a nursing home resident who died as a result of exposure to COVID-19. The defendant removed the case to federal court, claiming that it was acting on behalf of the federal government and that the federal PREP Act completely preempted the cause of action.

     In rejecting both claims, the federal court found that nursing homes were highly regulated but under Supreme Court precedent the homes cannot claim to be operating at the direction of a federal officer by complying with regulations. It further held that the PREP Act provides an exclusive remedy in federal court in Washington, DC for lawsuits based on the administration or use of approved countermeasures during a national health emergency. However, it does not provide a defense for the non-use of those countermeasures, as plaintiffs had pleaded. The court ordered the case returned to state court, where the defendant was free to assert any federal defenses it might have.

     In a federal constitutional challenge to the Texas damage cap on noneconomic damages in medical malpractice cases, CCL filed its opening brief, arguing that the Seventh Amendment to the U.S. Constitution was overdue for application to the States and invalidates the statutory limit on damages. 

     Under the Incorporation Doctrine, the Supreme Court has applied selective provisions of the Bill of Rights to the States, starting with the First Amendment's Free Speech Clause in 1925. The pace of incorporation quickened in the 1960s under the Warren Court, but then fell into a period of stasis. However, over the past ten years, the Supreme Court has rediscovered incorporation, starting with gun rights under the Second Amendment. Recent decisions have seen incorporation of the Excessive Fines Clause from the Eighth Amendment and application of the unanimous criminal jury verdict provision in the Sixth Amendment.

      One provision that the Court has not addressed in more than a century is the Seventh Amendment, which preserves the right to a jury trial in civil cases. The CCL brief demonstrates that the Seventh Amendment meets the criteria for incorporation, perhaps more urgently than other provisions.

       The Seventh Amendment establishes that juries are the judges of damages. A legislative revision of its assessment of damages, the brief further argues, interferes with the jury's prerogatives as established at common law prior to the promulgation of the Constitution. The Seventh Amendment constitutionalizes that authority and immunizes it from legislative interference, the brief further contends.

        Simultaneous opposing briefs were filed by the Texas Attorney General, defendant health-care providers, and the Texas Hospital Association. All parties have until December 3 to file reply briefs. The case, Winnett v. Frank, is pending in the U.S. District Court for the Western District of Texas.

     CCL President Robert S. Peck told an en banc panel of 17 judges in the Fifth Circuit that the application of an "at-home" requirement as a matter of due process renders Federal Rule of Civil Procedure 4(k)(2) a nullity and unconstitutional in all its applications during oral argument in Douglass v. NYK Line. A federal district court in New Orleans had thrown the case out because it held that a 2016 precedent in that circuit had added the "at-home" requirement. After a panel upheld the ruling based on that precedent but urging the Court to rehear the case to reconsider the 2016 ruling, the court granted a petition to rehear en banc to do just that.

     The case arose after a larger container ship operated by a Japanese company struck a U.S. Navy destroyer in the Sea of Japan, resulting in the deaths of seven U.S. sailors and injuries to 40 others. Representing the injured parties, along with the Koonz McKinney law firm of Washington, DC, Peck explained that Rule 4(k)(2) was adopted, with the agreement of the Supreme Court and the Congress, to address precisely these situations. It provides federal personal jurisdiction over defendants in federal causes of action where no state court can assert jurisdiction over the parties. To satisfy due process, all that is required are sufficient continuous and substantial contacts on a national basis, Peck said. However, no defendant can be "at home" in the United States and still not be subject to state-court jurisdiction.

    Peck further argued that the rule has especially important application in admiralty cases, like this one, where U.S. courts have exercised jurisdiction over the course of more than two centuries as a function of international law applicable to maritime nations. 

    The case now is under advisement, awaiting decision by the 17-judge court.

    Representing three plaintiffs seeking a declaration of unconstitutionality of a new Florida law that restricts the marketing and solicitation efforts of roofing contractors, CCL told a federal court that the law is aimed at discouraging homeowner claims for roofing damage, rather than its purported purpose of dissuading fraudulent claims. The case, Restoration Association of Florida v. Brown, was filed in the U.S. District Court for the Northern District of Florida.

    CCL moved for a preliminary injunction against a number of provisions in the law, all of which are designed to limit information about homeowners' insurance policies and their coverage by prohibiting roofing repair advertising that encourages homeowners to make an insurance claim, even if the policy covers that repair. In addition, it prohibits contractors from offering a "thing of value" such as a gift card or discount to encourage a homeowner to hire a roofing contractor in instances where an insurance claim might be made. It further prohibits roofing contractors from interpreting or advising the homeowner about an applicable insurance policy, prohibits payments for referrals where an insurance claim will be made, and makes the contractor the responsible party if a third-party violates legal requirements before a repair is referred to the contractor. 

   CCL has argued that most of the provisions violate the First Amendment. The State of Florida has defended by claiming that there is a close and obvious connection between the prohibitions and preventing fraud, but CCL's reply brief shows that there is none. In fact, Florida put in evidence that 90 percent of the time no fraud occurs when insurance claims are made for roofing replacement or repair. Florida homeowners have significant needs for those services because it is subject to frequent instances of severe weather, such as hurricanes.

    The court is expected to schedule a hearing on the preliminary injunction.

    CCL filed an amicus brief arguing that cities, no less than any other plaintiff, have a right to choose their causes of action and litigate in state court without being removed to federal court. The case, Mayor and City Council of Baltimore v. BP, is currently before the U.S. Court of Appeals for the Fourth Circuit on remand from the U.S. Supreme Court. The issue is whether any of the remaining grounds asserted by the defendant oil companies constitute a federal cause of action that should be heard in federal, rather than state, court. The Fourth Circuit had previously held that one ground, that the oil companies were acting at the direction of the federal government when they allegedly created a public nuisance and deceived the public about the climate-changing properties of fossil fuels, did not justify removing the case from state court. It further held that the statute that permitted that appeal, restricted the appeal to that issue.

     Subsequently, the Supreme Court ruled that all grounds for removal were subject to appeal when an order covers both federal officer removal justifications and other ones. 

     In its brief on behalf of the National League of Cities, U.S. Conference of Mayors, and International Municipal Lawyers Association, CCL argued that the oil companies were wrong to claim that the state law causes of action were a disguised form of federal common law, that the federal Clean Air Act explicitly did away with federal common law in this field and opened the door to state lawsuits seeking to remedy localized harms, and that the lawsuit did not seek to remedy climate change, but instead sought compensation for distinct effects that Baltimore suffered.

    The defendant oil companies will have an opportunity to file a reply to Baltimore's brief and all amicus briefs supporting it before the case is scheduled for oral argument.

     The Civil Justice Research Initiative at Berkeley Law School published a new paper on reviving the civil jury that describes the history, legal issues, and empirical research on civil juries with an eye toward making better and greater use of juries. The paper was written by Richard Jolly of Southwestern Law School, Valerie Hans of Cornell Law School, and CCL's Robert S. Peck.

      The paper shows that juries are an essential part of American democracy, are often subjected to unwarranted disrespect, and are very good at doing their assigned tasks according to the best available empirical research. The paper, "The Civil Jury: Reviving an American Institution," concludes with recommendations that the option of a jury trial should be the default rule, rather than merely available upon request; that damage caps be eliminated; that expanded expedited jury trials using 12 jurors take place; that more be done to assure representative juries; that 12-person juries be the norm; and that active measures, such as permitting jury notetaking and questions, be adopted.

     The paper is available at The Civil Jury: Reviving an American Institution.

    In a post to the Appellate Advocacy blog, CCL President Robert S. Peck discusses some of the tips that judges and practitioners offered on a webinar sponsored by the U.S. Court of Appeals for the Fourth Circuit. The blog is part of the law professor network. Peck posts on Sundays every two weeks. His latest post can be found at Tips for Appellate Practice, Fourth Circuit Edition, Part 1.