News

     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.

      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.

     Granting CCL's motion for summary judgment, a federal district court declared the challenged portions of a one-year-old West Virginia advertising law unconstitutional as a violation of the First Amendment and ordered it permanently enjoined. 

      The statute, called the Prevention of Deceptive Lawsuit Advertising and Solicitations Practices Regarding the Use of Medications Act, was enacted last year supposedly to prevent consumers from hearing potential liability resulting from injuries related to drugs and medical devices. Attorneys advertising for clients in drug and medical device litigation, the legislation contended, could cause some consumers to stop taking prescription medication without consulting their doctors. To prevent that possible consequence, the legislation banned the use of the word "recall" to describe voluntary recalls of the products by manufacturers, the use of "consumer alert" in the lawyers' advertising, and the use of a government logo that might suggest affiliation with official agencies. In addition, it imposed a wide range of disclaimers that could take up to 23 seconds from a 30-second advertisement. One disclaimer required the lawyer to tell consumers that they should not stop taking medication without consulting a doctor.

     CCL, working with the Segal Law Firm, challenged the law and obtained a preliminary injunction last June, so the law never went into effect. The new order makes that injunction permanent and declares the law unconstitutional, finding that it, without justification, bars truthful, nonmisleading advertising, compels a lawyer to provide medical advice unrelated to the legal services being offered, and imposes burdensome disclaimers.

     CCL President Robert S. Peck was lead counsel in the case. There is no word yet on whether the State of West Virginia plans to appeal the ruling.

    CCL told a West Virginia district court that the state attorney general failed to meet his burden in justifying a state law regulating attorney advertising related to drug and medical device cases that prohibits the use of certain words and adds a long list of disclaimers, in a reply brief in support of summary judgment.

    The law was enacted last year, based on the idea that consumers who see the advertisements soliciting business from those harmed by certain drug or medical devices would stop taking their medication or mistake the advertisements for medical advice. Representing two lawyers and one of their clients, along with the Segal Law Firm of West Virginia, CCL President Robert Peck obtained a preliminary injunction last June so that the law never went into effect. Earlier this year, plaintiffs sought summary judgment to turn the preliminary injunction into a permanent one, arguing that categorical bans against truthful, non-misleading advertising could not withstand constitutional scrutiny, such as a ban on telling consumers that the drug had been voluntarily recalled by the manufacturer.

     In addition, the disclaimers were burdensome, dominating the advertising and included a requirement that the lawyer provide medical advice by telling consumers not to stop taking a drug until consulting their doctors.

    In response, the West Virginia Attorney General, who was the defendant in the case, insisted that this was an ordinary consumer measure, justified by some polls and incidents in other states.

    Today's brief explained that the justification was a hollow one because it adopted precisely the paternalistic view that the Supreme Court has held cannot justify limits on protected commercial speech that is truthful and non-misleading. A ruling on the summary judgment motion is expected soon.

     A CCL-authored amicus brief asks the Missouri Supreme Court to strike damage limitations enacted by the state legislature as a violation of the right to trial by jury. The brief was filed on behalf of the Missouri Association of Trial Attorneys and the American Association for Justice.

    In 2011, CCL won a decision that struck the previous damage cap on jury-trial grounds. In the decision, Watts v. Lester E. Cox Med. Cntrs., the state supreme court held that a cap on a common-law cause of action invades the jury's province as the trier of facts, which includes the determination of compensatory damages. In response to that ruling, the Missouri General Assembly seized on the common-law cause of action analysis and enacted a "statutory cause of action" for medical malpractice. The new action, however, was identical to the old one, except for the institution of caps. 

     In the underlying action, the plaintiff alleged her physicians were negligent during childbirth and in post-partum care, requiring the mother to undergo multiple surgeries and suffer permanent injuries. The jury rendered a verdict for the plaintiff, but its assessment of $1 million in noneconomic damages was lowered by the trial court due to the cap.

     The amicus brief filed by CCL argues that Watts was correctly decided, that respected studies by independent academics demonstrate that the rationales behind damage caps are invalid, that merely codifying the common law does not transform a common-law cause of action into a statutory one, and that the jury-trial right applies to statutory causes of action that are analogous to ones that existed at common law. For those reasons, the Court should strike the new damages caps for the same reasons it struck the earlier version, the brief concludes.

    Two different federal district court judges denied motions to dismiss in three cases where an Illinois nursing home was sued over injuries and deaths due to COVID-19 and the nursing home's failure to take appropriate measures to stop the virus's spread in its facility.

    In the three cases filed against Westchester Operating Company, the nursing home operator, Judges Thomas Durkin and Manish Shah held that the separate claims for negligence and willful and wanton misconduct survive the motions to dismiss because the pleaded complaints allege that either Winchester was not eligible for the immunity that the Illinois Governor granted health care providers by executive order or that the pleading of willful and wanton misconduct satisfied an exception to the executive orders.

    The plaintiffs alleged that Westchester failed to take steps to protect its residents from the pandemic, affirmatively punished residents who complained, ordered staff who contracted COVID-19 to continue to work, and rendered no assistance to the State of Illinois that would qualify it for immunity under the Governor's orders. In moving to dismiss Westchester argued that the immunity order abrogated the Illinois Nursing Home Act's negligence standard and that the Act provided no liability for willful and wanton misconduct. Both judges found the arguments without merit. The three cases, filed in the U.S. District Court for the Northern District of Illinois will now proceed.

    The plaintiffs are represented by Levin and Perconti, as well as the Center for Constitutional Litigation, whose Robert S. Peck wrote the briefs opposing the motions to dismiss.

     CCL asked the Fourth Circuit to take supervisory authority over a case challenging the constitutionality of the Virginia cap on medical malpractice damages because the federal trial court has postponed ruling on the cap's validity and insisted on moving forward with a trial in which it cannot award any damages. The petition for a writ of mandamus and prohibition invokes the higher court's authority to confine the lower court to its legitimate jurisdiction.

     In the petition filed March 26, CCL explains that J.S., a minor, filed this declaratory judgment action and medical malpractice case against the defendant to seek compensation for debilitating injuries that were caused by a failure to diagnose the injury following an automobile collision. A joint tortfeasor settled the case against it for $2 million before the current suit was filed. Virginia law limits damages in medical malpractice actions to a total of $2 million, even though, in this case, J.S.'s medical expenses are estimated to be $3.3 million. CCL had argued that because the federal district court cannot award any damages, the liability claims fail the test for standing under Article III of the Constitution, which require the court to be able to provide a remedy, among other things. However, CCL pointed out the court can provide a remedy in the constitutional challenge because it could find the statute unconstitutional and enjoin its operation. Doing so, then, would open the door to trying the underlying malpractice action.

    However, in early March, the district court determined that reaching the constitutional question would constitute an improper advisory opinion because there is no entitlement to additional damages until there is a jury verdict above the $2 million damage cap. It set the case for trial. The petition to the U.S. Court of Appeals for the Fourth Circuit, however, argues that the trial court got it backwards. A trial of a case in which it can award no damages would be the advisory opinion that the Constitution forbids, because Virginia does not authorize medical malpractice cases to be brought when $2 million in damages have already been paid. The CCL petition directs the court to a 2021 U.S. Supreme Court ruling, where the issue was whether nominal damages of $1 were sufficient to find Article III standing and held that it was because even nominal damages provide concrete vindication to a plaintiff. Yet, in J.S.'s case, CCL points out, not even one penny of damages could be awarded, so the parties would be invoking federal judicial resources for a case that cannot vindicate the plaintiff's complaint.

     Under the procedure for petitions for mandamus, the parties must await a decision from the Fourth Circuit that invites the other parties and possibly the lower court to file a brief in opposition. If no such invitation issues, the petition is denied. CCL is cocounsel in the case with the MichieHamlett law firm in Charlottesville, Virginia.

    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 briefs filed today, CCL joined the Chicago law firm, Levin & Perconti, in opposing motions to dismiss and motions to strike complaints filed in the U.S. District Court for the Northern District of Illinois over COVID-19 deaths and injuries in a single nursing home.

     The cases involved three different residents, two of whom died, because the nursing home failed to take necessary precautions to avoid infecting residents with the coronavirus. Last year, as the pandemic was surging, Illinois Governor J.B. Pritzker issued two executive orders changing the civil liability standard for certain health care providers rendering assistance to the State in fighting COVID-19. If valid and applicable, the executive orders replaced existing negligence standards with "gross negligence and wanton misconduct" for liability to attach. In the three cases, the plaintiffs pleaded both the negligence and a willful and wanton standard in separate counts. The defendant nursing home sought to dismiss both counts, arguing that the executive order wiped out the negligence claim, while the willful and wanton claim was not authorized by the Illinois Nursing Home Care Act. As the CCL brief, written by Robert S. Peck, pointed out, the nursing home's argument is that each basis for liability cancelled the other. Nonetheless, the brief argued that the motion to dismiss should be denied because the argument does not provide grounds for dismissal, but a basis for an affirmative defense that must be alleged in an answer to the filed complaints.

    The nursing home, alternatively, sought to strike a large number of the complaints' allegations, as immaterial, duplicative, or otherwise improper. The brief argues that none of the grounds asserted provides a legitimate basis for striking any paragraphs from the complaint.

    The nursing home will now have an opportunity to file a reply brief. As the case moves forward, the applicability and the constitutional validity of the executive orders will be at issue.