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'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. 

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

Preliminary Injunction Sought on New Florida Advertising Prohibition

July 23rd, 2021

     CCL's Robert S. Peck filed a motion for a preliminary injunction against a new Florida law that restricts roofing contractors from advertising that encourages homeowners to make a valid insurance claim or assigning the insurance benefit to the contractor, all of which are standard, legal practices in the state, as well as a variety of other provisions that prohibit speech but not the practice.

     The new law went into effect on July 1. Shortly before CCL's motion on behalf of the Restoration Association of Florida, Apex Roofing and Reconstruction, and a homeowner, another judge in the same court issued a preliminary injunction against the advertising provision in a different case that did not address other provisions in the law. 

     The law was enacted to prevent insurance fraud, but, as the CCL motion argues, it is utterly unconnected to the State's objectives. The case was filed in the U.S. District Court for the Northern District of Florida.

Louisiana Governor Vetoes Attorney Advertising Legislation as "Likely Unconstitutional"

July 2nd, 2021

     Louisiana Governor John Bel Edwards vetoes S.B. 43, a bill intended to restrict attorney advertising and based on the same legislation that CCL successfully argued was unconstitutional in West Virginia. CCL's Robert S. Peck testified against the Louisiana bill in the Senate and House Commerce Committees, explaining why it was unconstitutional. The legislation, nonetheless, was approved by both Houses. 

     However, the governor vetoed the bill, ending its journey into law. In May, a federal district court declared the West Virginia version of the bill unconstitutional in a case brought by CCL with the Segal Law Firm. The State of West Virginia has, however, appealed the decision, and a briefing schedule for the appeal has now been set.

CCL Challenges New Florida Law Limiting Advertising by Roofing Contractors

June 30th, 2021

     Emphasizing the difference between prohibiting speech about legal practices and rendering the practices illegal, CCL today challenged a new Florida law that prohibited roofing contractors from encouraging or inducing Florida homeowners from filing an insurance claim on their existing policies. 

     Strangely, Florida's Department of Financial Services recommends that consumers first talk to a contractor, receive an estimate, and then contact their insurer, if the cost exceeds any deductible on the homeowner's policy by a sufficient amount. The lawsuit challenges that provision on First Amendment grounds, but also challenges other provisions of the new statute, due to go into effect July 1.

      Among its other provisions, the law prohibits contractors from inducing an insurance claim by informing homeowners of their right to assign the benefits of the insurance policy to the contractor. Assignment of benefits is a standard practice that the Florida courts have held cannot be denied by insurers, even if written into its contract with policyholders. The prohibited advertising practices cover the contractors' websites, so that those that are part of a multi-state company would, under the law, have to expunge information about working with the insurers on behalf of the policyholders so that homeowners do not have to front the costs of remediation and repair.

     Violations of the new rules can result in disciplinary action that includes suspension or loss of a contracting license, and fines of up to $10,000 per violation. 

     The case challenging the new law was filed on behalf of the Restoration Association of Florida, whose 300 members work in the repair and remediation industry, as well as Apex Roofing and Restoration, the largest roofing repair company in the Southeast, and a client of Apex roofing.

Plaintiffs Oppose Hospital Group's Intervention in Texas Challenge

June 21st, 2021

    Medical malpractice plaintiffs challenging the constitutionality of a Texas law limiting noneconomic damages filed a memorandum opposing a motion to intervene by the Texas Hospital Association today, written by CCL's Robert S. Peck.

    The THA argues that because the individual plaintiffs were joined by two groups, Texas Watch and the National Medical Malpractice Advocacy Association, two organizations whose members include individual medical malpractice plaintiffs, it should be allowed to become a defendant in the case to provide opposing views as a advocacy organization.

     The CCL memorandum argues that THA makes a potential case for amicus status but does not qualify to become a party, taking discovery, putting on evidence, and otherwise adding to and complicating the proceedings. The statute is already being defended by a multitude of health-care providers who will likely be joined by the Texas Attorney General's office, which is obliged to defend the statute. The opposition to intervention further states that the THA has not identified any claims or defenses it uniquely brings that have common facts or law to those already in the case, as evidenced by the vanilla answer it proposed filing that contained no affirmative defenses. A second requirement THA failed to meet is that they must show that the statute is inadequately defended. The THA motion makes no attempt to do so.

     The case, Winnett v. Frank, is pending in the U.S. District Court for the Western District of Texas.

West Virginia Appeals Decision Striking Down its Lawyer Advertising Statute

June 15th, 2021

     West Virginia Attorney General Patrick Morrisey filed an appeal today from a federal court's decision striking down a state statute that put restrictions and disclaimers on attorneys advertising for clients in prescription drug and medical device cases. CCL's Robert Peck, working with the Segal Law Firm's Scott Segal and Robin Jean Davis, won the decision in the federal district court for the Northern District of Virginia and will defend the appeal.

      The one-year-old statute never went into effect because of a successful motion to enjoin it. Among other things, it prohibited lawyers from describing a voluntary manufacturer recall of the product as a "recall." It also required attorneys to warn viewers to consult their own physicians before they stop taking any medication, even though that is medical advice, rather than a disclaimer relating to the offer of legal representation. The district court held that the statute violated the First Amendment.

Peck Participates in Status Hearing in Constitutional Challenge to Texas Law Capping Medical Malpractice Damages

June 3rd, 2021

      In a status hearing to resolve certain issues before a scheduling order could be issued, Judge Lee Yeakel discussed how he wanted to avoid procedural posturing and get as quickly to the real issues in the case in Winnett v. Frank, a constitutional challenge to the Texas statutory limits on noneconomic damages in medical malpractice cases. CCL's Robert S. Peck represents the plaintiffs in the action and agreed with the judge that he would seek to avoid skirmishes that have little to do with deciding whether the Seventh Amendment's right to trial by jury prohibits legislative interference with the jury's determination of facts. 

     Peck, along with co-counsel Hartley Hampton, had recently filed an amended complaint that sought to avoid the fights and complications of a plaintiff class action by adding two associations as plaintiffs because their members were involved in medical malpractice cases and the organizations were committed to finding damage caps. No party seemed to object to this means of assuring that standing would exist throughout the course of the litigation, including any appeals. 

     The parties now have sufficient guidance from the judge to develop a proposed schedule for the case.