News

CCL Joins Fitch Law on Reply Brief Challenging Damage Cap

December 13th, 2021

     CCL joined with the Fitch Law Firm on a reply brief that argued that a state statutory limit on damages should not apply to a young teenager's case against a man who raped her 34 times.

      The case, Brandt v. Pompa, involves a defendant convicted of repeated rapes of young girls, where his own daughter would invite them for a sleepover during which they would be drugged and raped. A jury hearing the civil case returned a verdict of $20 million in compensatory damages for the now-26-year-old plaintiff, who was traumatized and went homeless for a period while trying to recover from the emotional toll she suffered. Under a state law, however, that $20 million verdict was reduced to $250,000 under a state tort reform law. The plaintiff challenged the law's constitutionality, both as applied and on its face.

      Represented by a large law firm, the defendant argued that the case was moot because the defendant could never pay the verdict and that the law serves compelling state interests identified by the Ohio General Assembly that should receive deference from the state Supreme Court. Those arguments were echoed in briefs filed by the U.S. Chamber of Commerce and other business interests. The Ohio Attorney General also filed an amicus brief in support of the law, indicating that a change, which he supported, should be enacted by the legislature to assure that the law does not reach this situation, but that the courts have no business making that determination.

      In reply, the plaintiff's brief explained that collectibility is not a consideration in determining mootness, which could have been raised at the trial level, if it were a valid basis for avoiding a decision. It further explained that applying the damage limit to this case served no valid state purpose, as there is no interest in protecting rapists from valid judgments, no economic interest that serves the State in applying the cap here, and no basis for claiming that stability in the justice system is enhanced by capping these damages.

       Oral argument in the case is likely to be scheduled in the Spring.

       

CCL Files Reply Brief in Texas Cap Challenge

December 3rd, 2021

     CCL filed its reply brief in support of its challenge to the Texas medical-malpractice noneconomic damage cap, arguing that the Seventh Amendment qualifies for application to the States and its preservation of the jury trial as known at common law prevents artificial, one-size-fits-all damage caps on common-law causes of action. The case, Winnett v. Frank, is pending in the U.S. District Court in the Western District of Texas. 

     CCL's brief responds to substantive arguments against application of the Seventh Amendment and the jury-trial right as an obstacle to legislated revision of verdicts made largely by the defendants and the Texas Hospital Association, which intervened in the lawsuit. In addition, CCL responded to procedural objections filed by the Texas Attorney General, who also intervened.

     The attorney general argued that the case should be dismissed because it isn't ripe and because no plaintiff had yet had the legislative cap applied in their underlying medical malpractice case. CCL responded by asserting that its lawsuit is a well-recognized form of preenforcement challenge to a statute, that the defendants had asserted the cap as an affirmative defense in medical malpractice cases, and that the imminent enforcement of the cap affected trial strategy, evaluation of settlement offers, and the type of evidence that would be offered at trial, even if the cap is never applied.

     CCL also argued that the Supreme Court had authoritatively held that juries are the "judges of damages" in a 1998 decision, Feltner v. Columbia Pictures Television, Inc., and that replacing their factfinding, even under the guise of "applying the law," denied the full meaning of a jury trial as guaranteed by the Constitution.

     In the case, CCL represents the plaintiffs along with the Houston law firm of Hampton & King. Oral argument in the case is scheduled for January 7.

CCL Files Opposition to Damage Cap, Periodic Payments

November 29th, 2021

     In a California medical-malpractice case, CCL joined trial counsel in filing an opposition to the defendant's attempt to reduce the jury's verdict to $250,000 in noneconomic damages and to pay the damages to be incurred in the future over time. 

    In Merlo v. Pristine Surgery Center, a jury found an ambulance company and its paramedics liable for putting the patient in a permanent vegetative state by misplacing a breathing tube and assessed $50 million in damages. Of that amount, $20 million comprised noneconomic damages, which state law requires be reduced to $250,000. The defendant had turned down a pre-verdict settlement offer of $5 million for the entire matter.

    The newly filed brief challenges the constitutionality of the damage-cap law and its provision allowing periodic payments of future damages. The cap, the brief argues, violates the right to a jury trial, among other things. The periodic payments provision, it further contends, creates a windfall for defendants because the jury first is instructed to reduce the verdict to present value, discounting the future damages as a result on the assumption that the future damage money could be invested and grow over time. A periodic payments plan then discounts it again, because it withholds that money so it cannot be invested and grow, violating equal protection and due process, the CCL filing argues.

CCL Files Opposition to a Motion to Dismiss

November 26th, 2021

     In a challenge to the Texas statute that limits damages in medical malpractice cases brought in federal court, CCL filed its opposition to a motion to dismiss made by the Texas Attorney General on behalf of the state judicial defendants. The opposition also questioned the propriety of the Texas Attorney General filing a response in support of his own motion as both an attempt to evade the page limits on motions and improper because court rules only permit a response from those opposing the motion.

     The opposition noted that Section 1983 permits injunctions against enforcing state laws against state judges after a declaratory judgment was obtained. The current motions before the court seeks that declaratory judgment. The U.S. Supreme Court had previously permitted actions against judges who enforce unconstitutional laws.

     Subsequent to CCL's filing, the U.S. Supreme Court held that Texas judges could not be defendants in a Section 1983 preenforcement challenge to a statute in the high-profile S.B. 8 case, in which abortion providers sued over a new state vigilante bill that put a bounty on those who perform or assist in obtaining abortions. As a result, CCL will dismiss the judges in its case and proceed against the other defendants. 

Peck Argues Florida Marketing Law Is Unconstitutional

November 22nd, 2021

     CCL's Robert S. Peck told a federal court in Florida that a state law passed earlier in the year that restricted marketing efforts by roofing contractors violated commercial free speech and due process rights. Representing the contractors, Peck argued that the legislature's attempt to suppress marketing to lower the number of claims made by homeowners against their insurance policies improperly suppressed speech.

     The law prohibited mentioning the availability of insurance in advertising and limited a number of other marketing efforts to help insurers avoid having to pay repair or replacement costs for roofing. The State estimated that a small percentage of claims made were fraudulent, but placed the onus for those claims on marketing efforts, including offers of discounts and gift cards for homeowners who hired the contractor. Florida experiences a significant amount of extreme weather from hurricanes that is primarily responsible for home damage.

     The court heard the contractors' motion for a preliminary injunction against the measure and its enforcement. A ruling is expected shortly.

Peck Speaks about Supreme Court Term at Appellate Judges' Summit

November 12th, 2021

     CCL's Robert S. Peck told judges and appellate lawyers meeting in Austin, Texas that the current Supreme Court term will expose even more fissures between the justices on issues that have implications for the nation's political climate than last term when Justice Amy Coney Barrett joined the Court.

      In a morning session of the 2021 Appellate Judges Educational Institute, Peck joined Washington, DC lawyer Kannon Shamugam and Texas lawyer Jaime Santos in previewing, and, in some cases reviewing, October Term 2021. The discussion included cases on abortion, guns, religion, and civil rights. The four-day summit is one of the premier appellate education events each year and is sponsored by the National Judicial College.

CCL Contributes to Reply Brief in VW Emissions Appeal

November 11th, 2021

     In a reply brief filed in the Ninth Circuit, CCL joined co-counsel in arguing that the district court misunderstood federal and state law in eliminating one cause of action, limiting evidence, and reducing punitive damages in bellwether cases that opted out of the global settlement of the Volkswagen emissions scandal.

     For a nine-year period of time, Volkswagen employed a "defeat device" in certain cars sold as "green" vehicles that tricked emissions tests into registering low carbon emissions rates when the cars actually emitted 36 times the permissible levels of pollution. Buyers who purchased the cars across the United States sued over the misrepresentations. Volkswagen, which pleaded guilty to charges emanating from the scandal in both the U.S. and in Europe, settled with most buyers in a multi-district litigation heard in federal court in San Francisco.

     Nine purchasers who opted out of the settlement chose to try their cases. Under the terms of the joint trial, VW admitted liability but challenged the claimed damages. The purchasers brought several causes of action, including claims under California's lemon law and its consumer-protection law. However, the court treated the settlement offer made prior to the lawsuits as a bona fide attempt to settle the claims, throwing out the consumer-protection cause of action. The reply brief asserts that this was error because the settlement did not qualify as an offer under the law and included a waiver of other claims, which is inconsistent with California precedent. The court also ruled the cars fit for driving, even though the California statute has more rigorous requirements, including one that bars mislabeling the vehicles.

    Four of the plaintiffs won jury verdicts of $25,000 each in punitive damages. The court reduced those verdicts to a 4:1 ratio, putting each punitive-damage award under $10,000.  The reply brief argued that this misconstrued Supreme Court precedent that has rejected mandatory ratios and permits higher punitive damages when the compensatory damages are small.

    The case is due to be argued December 10.

     

CCL's Peck Quoted in Bloomberg Law Story on Vaccination Mandates

November 9th, 2021

     With the Biden Administration's vaccine mandate for large employers due to go into effect in January, the Fifth Circuit and several other courts are considering challenges that seek to stop the mandate. In a story on the Bloomberg Law website, CCL's Robert S. Peck is quoted that, strategically, the administration might wait to see what different courts decide initially before seeking the U.S. Supreme Court's intervention, given that there is still time before the mandate is due to go into effect.

     The story can be found at White House Biding Its Time in Fight Over Shot-or-Test Mandate.

 

CCL Opposes Motion to Dismiss in First Amendment Case

November 3rd, 2021

     In a brief filed today, CCL argued that the State of Florida's motion to dismiss two counts in a First Amendment challenge it filed should be denied.

      In RAF v. Brown, CCL has challenged the constitutionality of a 2021 state law that prevents roofing contractors from doing anything that might encourage a homeowner to make a claim under the homeowner's insurance policy. The law transparently attempts to keep homeowners in the dark about the coverage that the policy they have paid for might provide. On November 22, CCL will argue in favor of a preliminary injunction on the law.

       Even while that motion for injunctive relief remains pending, the State has sought to dismiss two minor claims relating to whether the law violated the impairment of contracts provision in the U.S. Constitution and one argument against a provision that imputes legal violations of third-parties to contractors. 

       The brief filed today argues that Florida's complaint about the skeletal nature of two sentences in the complaint fails to read the complaint as a whole and the much more substantive description of the claims that becomes evident from that reading. No date has yet been set for argument on the motion for a partial dismissal.

CCL Files Opening Brief in Texas Cap Challenge

October 20th, 2021

     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.