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    CCL filed a motion for summary judgment March 15, asking a federal district court to declare a West Virginia statute restricting attorney advertising in medication and medical device cases unconstitutional. Last year, CCL prevailed on a motion for a preliminary injunction in the case, which is issued when there is a substantial likelihood of prevailing overall.

    In its motion, CCL argued that there can be no justification that prevents truthful information from being conveyed to consumers, yet the statute does precisely that. It bans the use of the term "recall" unless ordered by a government agency or through an agreement between a manufacturer and a government agency, even though nearly all recalls of drugs and devices regulated by the Food and Drug Administration are voluntary recalls by the manufacturer, often after a request by the FDA. When the manufacturer refuses to engage in a voluntary recall, the Department of Justice sues to obtain a court order requiring the product be withdrawn from the market. That court order does not qualify as an agency directed recall. 

    In addition, the statute bans the use of "consumer alert" or similar phrases from lawyer advertising, which also includes all forms of solicitation of business, including a law firm's website. It requires all covered advertising advise consumers that the drug or device is still approved by the FDA, even if the FDA has requested a recall or the Justice Department has sued to remove the product from the market. Another provision requires lawyers to advise consumers that they should not stop taking medication without a doctor's advice, a form of medical advice that cannot be required of a commercial speaker talking about legal services.

    The case is called Recht v. Justice and is pending in the U.S. District Court for the Northern District of West Virginia. In the case, CCL is co-counsel with the Segal Law Firm in West Virginia.

     Judge Lee Yeakel of the U.S. District Court for the Western District of Texas held a status conference in a challenge CCL brought with other law firms to the medical malpractice damage cap in Texas on March 11. The telephone conference was intended to iron out procedures for moving forward in the case, Winnett v. Frank. The case was designed as a class action for medical-malpractice plaintiffs who reserved their federal rights separately from their state court liability actions in order to assure that a plaintiff would still have standing as the case proceeds through the appellate process.

    Judge Yeakel expressed a strong preference for finding a way to proceed without making the case a class action. He also indicated opposition to using a placekeeper plaintiffs such as a John or Jane Doe for that purpose, asking counsel to find a different approach acceptable to both sides.

   In a virtual board of advisors meeting, RAND's Institute for Civil Justice presented findings from two projects in its ongoing research. The first focused on the variation in size of federal juries. The project is examining explanations for why district courts choose different jury sizes as a precursor to research that will attempt to establish the optimal size for a jury in civil cases. A second presentation looked at issues in pandemic risk insurance. As a member of the board of advisors and a past president of the group, CCL's Robert S. Peck participated in the meeting.

     Working with the Levin & Peconti law firm in Chicago, CCL helped write a sur-reply brief that responds to the nursing home defendant's invocation of a interpretation of the PREP Act written in January by the prior administration.

      The Public Readiness and Emergency Preparedness Act, also known as the PREP Act, was enacted by Congress in 2005 and provides immunity from losses for the administration or use of certain countermeasures against diseases, threats, or conditions identified by the government, as long as the user of the countermeasures does not engage in willful misconduct. The measure was designed to free health-care providers from liability when a vaccine or other tool authorized for use in a public health emergency proves ineffective. 

      In Martin v. Peterson Health Operations, pending in the U.S. District Court for the Central District of Illinois, the plaintiff alleges that the nursing home defendant failed to undertake necessary steps to prevent the spread of COVID-19 in its facility and that failure resulted in the death of a resident, whose estate has sued. Peterson Health removed the case from state court to federal court and then asserted that the case should be dismissed under the PREP Act.

      The vast majority of courts in cases like this one, with only one outlier decision, have held that the PREP Act does not apply when there has been no administration or use of a countermeasure. However, the general counsel of the Department of Health and Human Services in the outgoing administration issued an 11th hour interpretation of the PREP Act and asserted that a decision against using countermeasures was covered by the Act's immunity provision as well. Although the defendant asserted that the interpretation had a binding effect, the sur-reply cites decisions that recognize a statutory interpretation by a general counsel of an administrative agency does not have the force and effect of binding law and that the interpretation itself acknowledges that it is not binding. The brief was filed March 8.

     In a brief filed on behalf of the American Association for Justice (AAJ), CCL pointed out serious constitutional flaws implicating the right to trial by jury and the right of access to the courts in a proposed class settlement of in the Roundup multi-district litigation. The settlement would affect thousands of claimants who used the weed killer Roundup, which is alleged to cause non-Hodgkins lymphoma (NHL). The settlement would put nearly $2 billion up to settle claims, while the defendant, Monsanto, continues to sell the product.

     The settlement proposes allowing claimants who reject individual settlement offers to bring their cases before a jury, but truncates those trials by mandating certain evidence be admitted and limiting remedies. The brief points out that a so-called "advisory" science panel, which would delay cases brought by at least four years, provides inherently problematic evidence before the jury about the connection between Roundup and NHL that adversely affects the jury's role in judging the credibility of witnesses and the weight accorded to evidence. The Science Panel conclusion entered into evidence need not even be accurate to be beyond challenge, while all counter-evidence would be subject to all evidentiary challenges.

     The brief also argues that the proposed settlement would prohibit punitive damages in those jury trials, giving Monsanto a free pass to continue the egregious misconduct that potentially exposes it to those damages absent the settlement.

     A National Law Journal article published the same day as the AAJ amicus brief was filed, features the brief in describing the uproar that the proposed settlement generated within the trial bar.

     CCL President Robert S. Peck voted on a variety of resolutions, including ones that addressed disputes over the 2020 presidential election, during the course of the American Bar Association's House of Delegates meeting, which took place virtually. Peck is one of three delegates representing the ABA Trial, Tort, and Insurance Practice Section. 

     One resolution laid out basic principles about the conduct of elections and urged Congress to give "controlling effect" to the popular vote winner in that jurisdiction. A second resolution urged adoption of laws that prohibited the possession or display of firearms by persons other than governmentally authorized military personnel, law enforcement, or security forces around specific areas where legislative debate is taking place or ballots cast.

     Seven sets of plaintiffs who opted out of two classwide settlements and tried their individual cases together filed their opening brief arguing fundamental errors in their cases that resulted in small-damage awards in most of the cases, and no liability in two cases. CCL was part of the legal team that drafted the brief.

     Riley v. Volkswagen of America grows out of a multi-year fraud in which Volkswagen used a "defeat device" to prevent government officials from realizing that the cars the company sold as "green" vehicles, with especially lowered emissions, actually spewed pollutants at 40 times the maximum level set by law. A program in the cars would adjust pollution levels to meet government requirements when a measuring rod was placed inside the tailpipe, giving a false reading of compliance. After the fraud was discovered, Volkswagen was subjected to a variety of criminal and civil penalties, and purchasers of the vehicles sued. Cases filed in federal courts across the country were consolidated for treatment in the U.S. District Court for the Northern District of California. Two class settlements came out of that courts, but a number of disaffected plaintiffs opted out of the settlements, seeking their own day in court on their complaints.

     The Riley plaintiffs were Californians who sought redress under the state's strong consumer protection laws. Under one, the Song-Beverly Act, the state's lemon law, the inability to fix a vehicle to meet the seller's promises results in damages that can be three times the sales price, plus attorney's fees. Judge Charles Breyer, presiding over the case, dismissed claims under the Act on the grounds that the vehicles were still operable, even if they did not meet the environmental standards that were promised and were the motivation for buying these particular cars. 

     In addition, the judge ruled against claims under the Consumer Legal Remedies Act, holding that the settlement offer was a "reasonable accommodation," which forgives potential liability for good-faith mistakes that are immediately corrected. He further held that claims for common-law fraud, which succeeded before the jury, only permitted meager damages for the difference in the vehicles' value with and without proper environmental controls, despite being illegal to sell as a new vehicle at the time of sale. Judge Breyer also reduced punitive damages of $25,000 per case assessed by the jury to a range of $2,328 to $12,532, a 4:1 ratio, even though larger ratio is constitutionally permissible when compensatory damages were small, as here.

    The brief details the errors made by the judge on these issues, as well as other evidentiary and procedural matters. Volkswagen's responsive brief is not expected until July.

     CCL President Robert S. Peck continues to serve as a source for reporters covering the second impeachment trial of Donald Trump. Answering an array of questions about procedures, constitutional requirements, the legitimacy of trying a former president, the First Amendment and incitement, and other related topics, Peck has provided answers to CBS stations across the country, Newsy.com, the Scripps-Howard network, Newsmax, and USA Today. 

     In his interviews, Peck has said that the Constitution does not bar a Senate trial of a former president who was impeached while still in office and that the First Amendment provides no basis for exempting the January 6 exhortation of people gathered by the then-president for the explicit purpose of stopping the Electoral College count from conviction in an impeachment trial. He has also explained the "imminent lawless action" standard declared by the Supreme Court in Brandenburg v. Ohio (1969), as well as the rudimentary understanding of constitutional issues that defense counsel has shown in their briefing and time on the Senate floor.

     In Morrison v. Royal Caribbean Cruises, a federal magistrate judge must determine issues of liability and law after a three-day trial, in which the Miami's Aronfeld law firm represented the plaintiff, injured when she tripped over an out-of-place, marble-based ashtray in the ship's casino. Prior to decision, the judge asked both sides to offer a draft findings of fact and conclusions of law. Yesterday, plaintiff's counsel filed their proposed fact and legal conclusions, with an assist from CCL's Robert S. Peck.

     The plaintiff's injuries were severe, as the wine glass in her hand shattered and glass was embedded in her face, while also causing mild head trauma from a concussion. The cruise line sought to defend by asserting that the plaintiff was intoxicated on the basis of less then three glasses of wine over a six-hour period of time, on the open and obvious nature of the two-foot tall heavy ashtray, even if obscured by a stool, and by the ship's lack of notice that the ashtray was out of place. Peck's legal analysis provided the court with several different precedents to demonstrate that notice was established based on the facts -- from a witness's testimony that the ashtray was out of place for about 30 minutes, from Royal Caribbean's acknowledgement that guests using slot machines will often move the ashtrays and that crew members are responsible for patrolling the narrow aisles and putting them back in place, and from prior incidents involving the ashtrays. 

     The case is now under advisement.

     On the cusp of the Senate impeachment trial of former President Donald Trump, CCL President Robert S. Peck told Newsy.com that the vast majority of constitutional scholars and lawyers agree that there is no constitutional bar to trying a former president.

      In response to a question about some senators claiming the trial is unconstitutional, Peck pointed out that the Constitution gives the Senate exclusive responsibility for trying all impeachments -- and that this impeachment took place while the Trump was still president. He added that a Senate conviction also allows that body to punish him with a vote that Trump could not again hold federal office. Even if no conviction occurs, the trial would have an important role in the court of history, Peck added.