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     CCL President Robert S. Peck finished two days of meetings of the American Bar Association's Tort Trial and Insurance Practice Section (TIPS) in Baltimore. The council is the section's governing body. Peck has served on the TIPS Council for 15 years and will be ending his tenure on it in August. During the meeting, Peck recounted his representation in the ABA House of Delegates during its February meeting and gave a preview of issues that will be raised at its August meeting.

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     In Cummings v. Premier Rehab Keller, the U.S. Supreme Court ruled that emotional distress damages, the only damages available to the plaintiff, were unavailable because such damages are rare in contract cases. In the case, a legally blind and deaf person was refused an American Sign Language interpreter at a physical therapy facility that accepted federal funding under the Rehabilitation Act and the Affordable Care Act. In accepting the funds, the facility pledged not to discriminate against any potential clients.

      The Supreme Court's ruling did not deny that the plaintiff suffered from illegal discrimination, but held that damages to compensate for emotional distress were not available. CCL filed an amicus brief in support of the plaintiff, making two points. The first argued that discrimination inherently involves emotional distress because it belittles the person as being less acceptable than others. That point was taken up by Justice Stephen Breyer in a dissent joined by Justices Sonia Sotomayor and Elena Kagan. CCL's second point is that courts that have belittled juries' ability to assess proper emotional distress damages err, because empirical studies continuously demonstrate that juries are well-suited to assess such damages. This point apparently succeeded with the Court, as the opinions did not take the bait offered by some advocates on the uncertainty of emotional distress damages.

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     In Recht v. Morissey, the Fourth Circuit held today that West Virginia could ban lawyer advertising about drug and medical devices from truthful use of the word "recall," calling it a "loaded," "troublesome," and "misleading," as well as other provisions previously invalidated in a CCL case by a federal district court. CCL president Robert S. Peck pledged to seek rehearing en banc, describing the decision as inconsistent with Fourth Circuit and U.S. Supreme Court precedent. 

     The decision accorded significant discretion to the state legislature, even though First Amendment precedent required the state to demonstrate that the problems it addressed were real, would be materially advanced by the chosen methods, and that no less extensive approach would suffice. The decision also upheld disclosure requirements that took up 30 seconds in a 30-second advertisement without providing any rationale for doing so. It also treated a requirement that lawyers tell viewers to consult their physician before discontinuing use of any medication, even when the advertising had nothing to do with medication. Such a requirement has no justification in such a case. It further treated that disclaimer as factual and uncontroversial, even though the district court termed it "medical advice."

     The petition for rehearing en banc is due May 11.

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     CCL President Robert S. Peck participated in the Spring 2022 meeting of the Legal Affairs Committee of the American Association for Justice, where he spoke about his recent argument in the Ohio Supreme Court in Brandt v. Pompa, a constitutional challenge to the damage cap applicable to personal-injury lawsuits.

      In Brandt, under a state statute, the trial court reduced a $20 million jury verdict to $250,000 where the plaintiff had been the victim, as an eleven- and twelve-year-old, of more than 30 sexual assaults by a friend's father, who had drugged her during sleepovers. Peck argued that the statute violated the state constitutional right to trial by jury, but also was unconstitutional as applied to Brandt because the legislature had no justification for treating her differently from those suffering permanent physical injuries, whose damages are not capped.

      The case, argued in late March, is currently under advisement, with a decision expected before the end of the year.

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     In another case of government seeking compensation for Big Oil's misrepresentations about the impact of fossil fuels and its impact on sea levels and crumbling infrastructure, this time brought by the State of Delaware, the Third Circuit will determine whether the case belongs in state or federal court. CCL filed an amicus brief in support of the state's position on behalf of the National League of Cities and the U.S. Conference of Mayors.

     The briefing follows two decisions within the past week by the Fourth and Ninth Circuits, respectively, supporting Delaware's position. In its amicus brief, CCL argued that states and local government, just like any other plaintiff, have a right to choose the causes of action they seek to pursue and keep a case in state court by virtue of those choices. It further argued that federalism principles support the right of state and local governments to pursue compensation for injuries suffered from large, multinational corporations.

       The oil company defendants will have an opportunity to reply to the state's arguments, as well as its supporting amici, before setting the case for oral argument.

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     Ruling just days after the Fourth Circuit held that Baltimore's lawsuit against Big Oil should return to state court, the Ninth Circuit similarly held that lawsuits brought by three California counties and one city belong in state court. CCL filed an amicus brief in the case supporting that result on behalf of U.S. Senator Sheldon Whitehouse.

      The ruling rejected various claims the oil companies' made that the lawsuit, framed in state law terms, actually asserted various federal causes of action that should be heard in federal court. In joining the Fourth Circuit and a prior similar ruling by the Tenth Circuit, the federal appellate court based in California agreed with its sister circuits that none of the claimed federal causes of action applied. 

       The amicus brief filed by CCL argued that the defendants' claims of federal jurisdiction were invalid, in part, because they had heavily and successfully lobbied against federal laws that might apply to climate change.

        The Baltimore case had returned to the Fourth Circuit after the U.S. Supreme Court had ruled that the court had failed to address all the bases for federal jurisdiction asserted by Big Oil, based on its faulty understanding of a law that permitted interlocutory appeals of all bases for a remand order. The defendants are expected to seek further review in the Supreme Court of the new orders from various federal courts of appeals.

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      CCL President Robert S. Peck bemoaned the theater and lack of substance in the Senate Judiciary Committee's hearing on the nomination of Judge Ketanji Brown Jackson to the Supreme Court in an Appellate Advocacy blogpost.

       Reviewing some of the questions asked, Peck gave alternative "tongue-in-cheek" answers in place of the more appropriate ones given by Judge Jackson, who demonstrated an unflappable temperament in the face of exceedingly silly and posturing questions. The post can be found at "Tongue-in-Cheek Answers to Bizarre Questions."

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     In two separate cases, CCL replied today to state briefs defending the Illinois governor's authority to grant immunity to nursing homes that allegedly did nothing different than they normally do for "rendering assistance" to the state in the pandemic, pointing out that nothing in state law provides that type of extraordinary authority to the executive.

     The dispute arises in two cases in which nursing home residents died after the homes failed to take any relevant precautions to protect the residents from COVID-19. In seeking dismissal of negligence allegations against them, the homes' invoked a temporary executive order from Illinois Governor JB Pritzker that asked health-care providers to render assistance to the state's efforts to combat the pandemic and granted immunity from negligence liability in return.

      CCL argued that the Illinois Emergency Management Agency Act does not provide the authority claimed by the governor and does not allow him to unilaterally suspend the Illinois Nursing Home Reform Act, particularly where no assistance was rendered to the State. As a result, the grant of immunity violated separation of powers, equal protection, and due process. Moreover, it constitutes a form of special legislation by providing improper economic favoritism without justification.

 

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     In a unanimous 93-page decision, the U.S. Court of Appeals for the Fourth Circuit ordered the return of Baltimore's climate-change case against Big Oil to state court. CCL filed an amicus brief in support of Baltimore on behalf of the National League of Cities, U.S. Conference of Mayors, and the International Municipal Lawyers Association.

      Baltimore sued oil companies for misrepresenting the environmental impact of fossil fuels, which has resulted in damage to the city's infrastructure. Seeking compensation for the damage, Baltimore filed suit under various state law causes of action in state court. The oil companies removed the case to federal court, claiming that the case actually sounds in federal law. When the district court ordered the case remanded to state court, the oil companies appealed, relying on a federal statute that permits interlocutory appeals when a defendant claims to be acting as a federal officer. The Fourth Circuit affirmed the district court's decision, finding that the oil companies were not federal agents, but the Supreme Court subsequently held that the Fourth Circuit also needed to address the oil companies' other grounds for removal. 

     Today's decision undertook that analysis and held that no grounds existed that would require submission of the case federal jurisdiction. The holding maintains a consistent position from federal courts of appeal that these types of cases are not federal in character.

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     CCL President Robert S. Peck discussed the continuing impact of political outlooks on appellate decision-making in a post on the Appellate Advocacy Blog of the Law Professor's Blog Network.

     Even so, the theory of the law is that logic and reason control outcomes -- and usually it does, as evidenced by the frequency of 9-0 decisions on an ideologically diverse U.S. Supreme Court. However, on hot-button issues, where either a statute or the Constitution provides no singular answer, the post explains that judges imbue their decisions with the lessons of experience or past determinations that result in diverse views when reading the same language, precedents, and arguments. The post suggests that, while this type of political-outlook influence has always been true, the frequency of it seems to be increasing as the division of judicial philosophies often seem to reflect diverse political views.

     The post can be viewed at The Logic of the Courtroom, the Skewing Influence of Politics.

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