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In a hearing on a motion to dismiss for failure to comply perfectly with presuit requirements in medical malpractice cases, CCL President Robert Peck told a Florida trial judge that, if the gist of the defendants arguments was that the plaintiff did not utilize the statutorily mandated form, constitution flaws in the form excused the oversight. 

The issue arises in a tragic case of a woman dying from brain cancer as a result of a late diagnosis. Though the defendants engaged in extensive presuit discovery, eventually received all records they sought before suit was filed, and could not show they were prejudiced in any way, they nonetheless asked the judge to use a technicality to oust the plaintiff from court. Florida lawyer Sean Dominic, counsel for the plaintiff, argued that repeated Florida precedent rejected the defendants' stance. He brought CCL's Peck into the case to emphasize the constitutional basis for those precedents. Peck told the court that the form required the plaintiff to sign releases inconsistent and irreconcilable with Florida Rule of Civil Procedure 1.650, thereby violating the Florida Constitution's exclusive assignment of primacy over court processes to the Florida Supreme Court. The form also violated Florida's strong right of privacy and its guarantee of access to the courts, Peck said.

The case, heard in Osceola County, Florida, was taken under advisement.

In a case involving a woman’s brain cancer that became incurable allegedly because of a delayed diagnosis, Berger v. Garner, filed in a Florida Circuit Court, CCL argues that dismissal should be denied because the defendant health care providers’ argument that the refusal to use a form that permits ex parte interviews imposed an unconstitutional condition on commencement of the lawsuit.  The case, set for a hearing next week, involves a 2013 Florida statute that requires medical-malpractice plaintiffs to file a notice of intent to sue at least 90 days before a lawsuit can be filed and include an authorization for the likely defendants, their lawyers, their experts, and their insurance adjusters to interview the plaintiff’s treating physicians without plaintiff’s counsel present. When no such authorization was filed 90 days before suit was brought, the Defendants moved to dismiss, even though they admitted they have never used the authorization to engage in such ex parte interviews.

CCL’s brief for the plaintiff, written by President Robert S. Peck and associate Kathryn Minton, argues that the requirement conflicts with Florida Rule of Civil Procedure 1.650 and is therefore null and void as a legislative invasion of the Florida Supreme Court’s exclusive authority to promulgate rules of court. In addition, the requirement, which requires revelation of private health information not at issue in the case, violates Florida’s strong constitutional right to privacy. The brief further argues that the authorization for ex parte interviews violate the Florida Constitution’s guarantee of access to the courts by not being justified by overpowering public necessity and implemented in the least restrictive fashion. Finally, the brief argues that the ex parte provision constitutes a special law that provides an evidentiary privilege only to medical-malpractice defendants and burden to those claimants, when the issue of personal injuries to which treating physicians have evidence is common to a wide variety of plaintiffs.

A hearing on the motion to dismiss is scheduled for April 7 in Kissimmee, Florida.

On Monday, CCL argued that the defendants argued for an implausible construction of the Florida rules of civil procedure, in a specious effort to avoid invalidation of a statute that expands presuit discovery to include ex parte interviews with a medical malpractice plaintiff’s treating physicians, including those who treated the plaintiff two years before the alleged malpractice. In the reply brief filed in Florida’s First District Court of Appeals, CCL President Robert S. Peck argued that the rule’s delineation of three forms of permissible discovery was exclusive under applicable canons of constitutional construction and that the Legislature had no authority to expand the available methods because the state constitution limited that authority to the Supreme Court. Opposing counsel argued that the use of the word “may” in the rule that stated parties may use one or more of the following methods indicated that the rule anticipated legislative expansion. The CCL brief rejoined that the word “may” simply made presuit discovery permissible rather than obligatory.

In addition to responding to other arguments, the CCL brief made a special point about the state constitutional right of privacy. The trial court had found that the plaintiff had neither standing to make a privacy claim nor was entitled to make such a constitutional claim against a private party. The defendants simply parroted that ruling. CCL, however, pointed out that the trial court and defendants had conflated arguments applicable to the invasion of privacy tort, which seeks damages, with the constitutional right in a case that merely seeks a declaration of rights. Moreover, the brief said, the necessary state action occurred when the legislature passed the statute. Because the defendants had indicated their intention to utilize the statute, they were proper parties to a declaratory judgment action to decide the constitutionality of the underlying statute.

With briefing now complete, the case will soon be set for oral argument.

On December 11, 2014, CCL filed a brief arguing that a trial court erred in excluding expert evidence on the effect of gasoline fumes in causing neurological defects in a child born with severe neurological problems. The case, Sean R. v. BMW of North America LLC, pending in the New York Court of Appeals, will determine the level of reliability an expert must meet to satisfy the Frye test, which requires expert scientific evidence to use methodologies that are generally acceptable within the relevant expert community. CCL’s brief was filed on behalf of amicus curiae American Association for Justice.

The issue arose because the plaintiff family purchased a new 1989 BMW, but emitted a strong odor of gasoline inside the car. Plaintiff Debra Reeps drove the car throughout the first trimester of her pregnancy. Subsequently, the BMW dealer identified a defective hose as the source of the gasoline fumes. Sean Reeps was later born with severe birth defects, including brain damage. Plaintiff brought this product liability action against the manufacturer, alleging that Sean’s exposure in utero to gasoline fumes was the cause of his injuries.

The trial court granted defendant’s motion for summary judgment. The court held that the testimony of plaintiff’s experts that in utero exposure to gasoline vapors or that of its components can cause birth defects (general causation) is not admissible in the absence of epidemiological studies demonstrating such an association. In addition, plaintiff was required to show that gasoline vapors, not simply the vapors of gasoline components, such as toluene or benzene, may cause birth defects. Moreover, the court ruled, plaintiff was obliged to show an association between gasoline exposure and the specific neurological defects suffered by Sean. The court also held that plaintiff’s expert testimony quantifying Debra’s exposure (specific causation), based on “odor threshold methodology,” was insufficient because the expert’s numbers “just don’t add up.” The appellate division affirmed in a short opinion.

AAJ’s amicus brief to the Court of Appeals, authored by CCL Senior Counsel Jeffrey R. White, contended that these overly stringent requirements were not consistent with the weight of authority across the country and did not comport with the practice of scientists. The brief emphasized that the types of causation evidence plaintiff offered were noted with approval in the Federal Judicial Center’s Reference Manual on Scientific Evidence. The court also erred in excluding plaintiff’s experts by focusing on the experts’ conclusion, rather than inquiring into the general acceptance of their methodology, as Frye jurisdictions require. As a result, plaintiff was deprived of his constitutional right to present the merits of his case to a jury.

On Tuesday, November 25^th, the California Supreme Court issued an order granting the petition for review in Hughes v. Pham, a case CCL has been working on for several years. The court is holding the case pending its resolution of another case, Rashidi v. Moser, which presents the same statutory question presented in the Hughes petition. The court has not yet said whether it will ask for briefing on the constitutional issues presented in the Hughes petition, including whether California’s $250,000 cap on noneconomic damages in medical malpractice cases violated the state’s “inviolate” right to jury trial. The lead case does not involve the constitutional issues presented in the Hughes petition. A decision in the lead case is expected by early January.

On November 17^th, CCL filed its reply in support of its petition for review in Hughes v. Pham in the California Supreme Court. The case, discussed here and here, involves a constitutional challenge to the $250,000 cap on noneconomic damages in medical malpractice cases that was enacted in 1975 as a part of the Medical Injury Compensation Reform Act (MICRA). CCL Senior Litigation Counsel Valerie M. Nannery, representing Trent and Lisa Hughes, whose noneconomic damages were reduced from $3.75 million to $500,000 under the MICRA cap, urged the California Supreme Court to grant review of the jury trial and separation of powers issues presented in the petition. The California Supreme Court has never addressed whether the MICRA cap violates the state’s “inviolate” constitutional right to a jury trial or separation of powers. In recent years, several other state supreme courts have overturned caps on damages on jury trial and separation of powers grounds.

The plaintiffs are represented by CCL’s Valerie M. Nannery, David Bricker of Waters Kraus & Paul in Los Angeles, CA, Burt Rosenblatt of Ely, Bettini, Ulman & Rosenblatt in Phoenix, AZ, and Steven B. Stevens in Los Angeles, CA.

CCL President Robert S. Peck filed his opening brief in the First District Court of Appeals in Florida in Weaver v. Myers, a case challenging the constitutionality of a state statute that went into effect last year and requires medical-malpractice plaintiffs to authorize, during the presuit period in which they have to notify defendants of an intent to sue, unlimited ex parte interviews of their treating physicians. The doctors subject to interview include those who treated the plaintiff up to two years before the alleged malpractice, and the interviews may be conducted, without notice under certain circumstances, by the defendant, defendant’s insurers, defendant’s experts, and any of their attorneys. The trial judge found no constitutional problem with the requirement.

In arguing that the Court strike the law down, Peck stated that the law conflicts with a Rule 1.650 of the Florida rules of civil procedure, which was promulgated by the Florida Supreme Court to limit presuit discovery under the relevant statute. The Florida Constitution gives the Supreme Court exclusive authority to promulgate rules of procedure, and precedent holds that any statute that conflicts with an existing rule of civil procedure is null and void. The trial court ignored this categorical requirement by recasting the ex parte interview as “pretrial investigation,” rather than discovery even though the statute itself termed it discovery.

The brief also argued that the new ex parte provision violates the state constitutional right of privacy, the prohibition against special laws, and the guarantee of access to the courts.  The defendant and the State of Florida will now have an opportunity to file answering briefs.

On October 1, CCL filed a petition for review in Hughes v. Pham, urging the California Supreme Court to grant review of the constitutionality of the state’s $250,000 cap on noneconomic damages in medical malpractice cases under the state constitutional right to trial by jury and the separation of powers doctrine. In the trial court, a jury determined that the plaintiffs were entitled to $3.75 million in damages for noneconomic injuries that included permanent paralysis, pain and suffering, and loss of consortium. Applying California’s cap, the trial judge reduced this portion of the jury’s verdict to $500,000: $250,000 for each plaintiff. The court of appeal recently affirmed the trial court’s decision.

The petition for review on the constitutional issues was written by CCL Senior Litigation Counsel Valerie M. Nannery. The petition argues that the court should grant review to resolve the proper interpretation of the state’s “inviolate” right to a jury trial under the California Constitution, a ground on which it has never reviewed the 1975 cap. The court of appeal’s unpublished decision said that the right to a jury trial “may be modified in furtherance of a legitimate state interest,” a standard not employed in any decision of the California Supreme Court when examining whether the jury trial right is violated and demotes the constitutional provision to the status of mere legislation. The petition urges the court to grant review of the constitutional issues to correct the misapplication of its own precedents and to restore the right to jury trial to the inviolate position that the framers expressed.

Though the damage cap is nearly four decades old, the California Supreme Court has never resolved the constitutional issues presented in the petition. The highest courts of other states, including Georgia and Missouri, recently have struck down caps on damages because they violate the same “inviolate” right to a jury trial protected by their state constitutions. It is time for the California Supreme Court to finally resolve these issues, the Petition argues.

In addition to CCL’s Nannery, the plaintiffs are represented by trial counsel David Bricker of Waters Kraus & Paul in Los Angeles, CA and Burt Rosenblatt of Ely, Bettini, Ulman & Rosenblatt in Phoenix, AZ, as well as Steven B. Stevens in Los Angeles, CA on other issues in the appeal. 

On September 16, the U.S. Court of Appeals for the Eleventh Circuit heard oral argument in a challenge to a Florida law that went into effect in July 2013 and requires potential medical malpractice plaintiffs to file an authorization that would allow the defense team to conduct ex parte interviews with the plaintiff’s treating physicians, including those from two years before the alleged malpractice incident, beginning during the 90-day period before a lawsuit may be filed and lasting throughout the duration of the suit.  Late last year, U.S. District Court Judge Robert Hinkle declared the Florida statute null and void because it was preempted by the federal Health Insurance Portability and Accountability Act, known as HIPAA.  CCL’s Robert S. Peck argued the case before Judge Hinkle and reprised his argument before the Eleventh Circuit.

Representing the State of Florida, Deputy Solicitor General Diane DeWolf argued that the mandatory authorization required by state law might coerce a plaintiff into giving up privacy rights, but that the State could insist on that requirement to go to court as a condition precedent to filing a lawsuit.  She argued this type of coercion is not unlike other forms of coercion that HIPAA permits.  Eric Bartenhagen, representing the defendant doctor, agreed, claiming that a HIPAA-compliant authorization was a legitimate way for the State to enforce its interests in giving defense counsel equal access to the plaintiff’s doctor that the plaintiff’s lawyer had.

Peck countered these arguments by emphasizing that Congress had made a judgment to set national standards to protect the privacy of private health information and expressly preempted state law unless it was more stringent that federal law in its protection of privacy.  In recognizing that there were legitimate needs for that information, the Department of Health and Human Services wrote specific procedures that had to be followed in judicial proceedings, which included obtaining a court order before inquiries beyond standard discovery could take place.  The authorization procedure adopted by Florida, Peck said, impermissibly by passed the procedures required in judicial proceedings in a manner that no federal court and no state appellate court, save that of Texas, had found that a mandatory authorization was a legitimate alternative to following the specific procedures applicable to judicial proceedings.

The case was taken under advisement.

In 2009, a severe windstorm collapsed the staging at the Indiana State Fair, killing seven people and injuring 58 more.  Jordyn Polet, then aged 10, was there with her mother, sister and a family friend.  The friend was killed, while the mother and sister suffered severe injuries.  Jordyn’s physical injuries were relatively minor, but she was diagnosed with traumatic stress syndrome from the experience. The State of Indiana decided to settle its liability with all potential claimants.  Invoking the aggregate cap in the state tort claims act, the State hired mediator Kenneth Feinberg to distribute the act’s maximum liability of $5 million among the victims.  Feinberg implemented a scale that paid 65 percent of the then-existing medical and hospital expenses to each victim, while also paying at least $300,000 in each of the wrongful death cases.  For Jordyn, the settlement offer was $1,690.65. She turned the offer down.  As a result, the State then distributed that amount among the remaining settling claimants.  Later, after legislative action, the State sweetened the settlement pot by another $6 million that would be distributed in like manner only among the settling claimants.  When Jordyn filed her complaint in court under the tort claims act, the State asserted an affirmative defense that it was immune from suit because it had paid out its maximum liability of $5 million. When Jordyn challenged that affirmative defense on constitutional grounds, the trial court denied her motion for partial summary judgment.

The case now moves to the appellate court, where CCL’s Robert S. Peck filed an opening brief that asserts that Indiana’s unaccepted settlement cannot eviscerate Jordyn’s valid, accrued cause of action to which the tort claim act constitutes consent. The brief argues that the termination of her claim by the trial court violates Indiana’s open courts guarantee.  Moreover, because the act contains both an individual cap of $700,000 and an aggregate cap of $5 million, implementation of the act violates the state constitution’s equal privileges provision by treating those who have the misfortune of being injured with many others differently from those who are injured alone and eligible for up to a $700,000 recovery.  The unequal treatment of tort claimants raises an issue similar to one resolved in March by the Florida Supreme Court in another case argued by Peck, where it held the state’s aggregate cap in medical-malpractice wrongful death cases violated the state constitution’s equal protection guarantee.