News

     CCL joined co-counsel Levanthal Puga Braley in filing a petition for a writ of certiorari in the Colorado Supreme Court to restore the jury's verdict in Smith v. Surgery Center, a medical malpractice case.

     The case began when Robbin Smith sought treatment for lower back pain in anticipation of standing for a long time at her son's upcoming wedding. Instead, because the doctor improperly used a drug that had a black-box warning against epidural use, Robbin suffered paralysis in her lower body and ended up having to watch the ceremony by video.

      The doctor settled his liability, but the case continued against the ambulatory surgical center where the treatment took place. The center's formulary supplied the drug, Kenalog, despite knowing of its planned use, the warning against that use, and which was confirmed four times by center nurses who were part of the surgery. While the center claimed it could not control its use by the doctor, it subsequently passed a rule that gave it that control. In addition, the center violated a host of state and federal regulations designed to assure patient safety at centers like the defendant, which the jury found to constitute negligence per se. Finally, by interposing its own "informed consent" form that failed to inform Robbin of the warning against Kenalog's use for her procedure, the jury found a violation of standards of care. The jury awarded damages of $14.9 million to Robbin and her husband, which the trial court reduced to $7 million under the state non-economic damage cap while also rejecting a constitutional challenge to the cap.

     Both parties appealed to the state court of appeals, with the Surgery Center appealing its liability and the Smiths appealing rejection of their constitutional challenge. The Court of Appeals, however, took away the judgment, finding that the Surgery Center cannot be held responsible for the injury due to Colorado's prohibition on the corporate practice of medicine, that the regulations violated were more oriented toward licensure than safety, and that the center could not be liable for failing to provide informed consent, even if assuming that duty, because it was not its responsibility. As a result, the constitutional issue was not addressed.

     The petition filed today asks the Colorado Supreme Court to review those determinations.

     CCL President Robert S. Peck argued that a federal district court in Virginia was obliged to take up a constitutional challenge to Virginia's $2 million limitation on damages in medical malpractice cases before undertaking trial of the case today.

     In J.S. v. Winchester Pediatric, a young boy was catastrophically injured, requiring life-long care, as a result of medical negligence after being involved in an automobile collision. One set of defendants settled for the entire damage limitation of $2 million. However, because of the statutory limit, the second defendant is immunized from liability, even if found to have been at fault and a jury determination that the damages exceed the $2 million limit. For that reason, Peck argued that the district court did not have Article III authority under the Constitution to try the case. The Supreme Court has made clear that to constitute a "case" or "controversy" within the authority of the federal courts there must be an injury in fact fairly traceable to the defendant's conduct for which the court can give relief. Because no relief could be had as a result of the damage-cap statute, Peck told the court it was without authority to try the case. However, he said the constitutional challenge to the statute demonstrated the requisite case or controversy because J.S. would be shut out of his day in court as a result of the state law and that a declaration of unconstitutionality could remedy this injury.

     The defendant and the Virginia Attorney General's office both argued that a trial needed to take place before the constitutional question could be taken up, in order to be sure there was liability and a verdict above the cap. Neither, however, was able to explain how the court had Article III authority to conduct the medical-malpractice trial. 

     CCL, along with trial lawyers in Texas, filed a challenge to the non-economic damage cap in medical malpractice cases that was enacted 17 years ago. The case, a purported class action seeks the "incorporation" of the Seventh Amendment's right to trial by jury, meaning its application to the States, and a declaration of unconstitutionality for the cap.

     In recent years the U.S. Supreme Court has expanded the "incorporation" doctrine to include the Eighth Amendment's excessive fines clause and the Fifth Amendment's unanimous criminal jury requirement. Under the criteria used by the Court, the Seventh Amendment qualifies as well, the new lawsuit contends.

     The cap will likely be defended by the Attorney General's office in Texas.

     In a hilariously mistitled feature called "This Day in Liberal Judicial Activism," the National Journal today highlighted one of the cases briefed and argued by CCL President Robert S. Peck, before CCL was formed.

      The case is State ex rel. Ohio Academy of Trial Lawyers v. Sheward (1999), which struck down a state omnibus "tort reform" statute, that attempted to reenact a variety of measures the Ohio Supreme Court had previously struck down and a score of additional similar provisions. In support of its passage, the Ohio Legislature merely noted its "respectful" disagreement with the decisions of the Ohio Supreme Court. In addition to challenging the individual provisions of the legislation, Peck characterized the lengthy enactment as a challenge to the court's authority to resolve the constitutionality of statutes. 

     The court agreed, finding the overall measure a violation of separation of powers. 

     CCL filed a petition for a writ of certiorari in the United States Supreme Court on behalf of John Devos, a Minnesota resident injured in the course of his employment in Minnesota. His claim was denied, however, because Devos was employed by a North Dakota company -- and Minnesota's workers compensation law uniquely makes North Dakota workers compensation benefits the exclusive remedy for injuries in Minnesota by employees of North Dakota companies.

     The relevant statutory amendments were added in 2005 when North Dakota's workers compensation system, a state-run monopoly, pleaded that many North Dakota companies could not afford the $600 per year in premiums to cover Minnesota. However, in 2010, the same agency began covering North Dakota employers wherever their employees were sent to work.

     Under the Minnesota statute, if Devos worked for a South Dakota or even a Florida company, Minnesota workers compensation, significantly more generous than North Dakota's, would cover him. Only North Dakota employers receive this special dispensation in Minnesota. 

     The Minnesota Supreme Court dismissed the constitutional challenge without argument, simply finding that the plaintiff had failed to demonstrate why the exemption violated equal protection. 

     The case is Devos v. Rhino Contracting, Inc., No 20-159. Responses to the petition are due September 24.

     Finding that the plaintiffs are likely to prevail, U.S. District Court Judge John Preston Bailey granted CCL's motion for a preliminary injunction against the operation of a new West Virginia statute that attempted to restrict lawyer advertising related to cases involving prescription drugs and medical devices.

      The statute placed a categorical ban on the use of the word "recall" in connection with drug or medical device advertising by lawyers, even if the manufacturer had recalled the defective product or a court had ordered the manufacturer to take it off the market. It also told lawyers that they could not use words like "consumer alert" or "alert" to catch a potential client's attention in their advertising. It further barred the use of a government agency logo because it might suggest an affiliation with the agency, even though the advertisements contained language indicating that this is a advertisement for legal services. In addition, the judge found problematic a host of disclaimers required by the law, at least two of which he determined were not factual or uncontroversial, as required by First Amendment precedent, but amounted to medical advice.

      CCL handled the case with the Segal Law Firm and represented two West Virginia lawyers, as well as one of the lawyers' clients.

     CCL's Robert S. Peck argued yesterday that a new statute prohibiting certain language and symbols and adding extensive disclaimers in lawyer advertising violated the First Amendment before the U.S. District Court for the Northern District of West Virginia. The rare in-person argument occurred in the case of Recht v. Justice.

     The statute, passed earlier this year and due to go into effect this month, was aimed at lawyers seeking clients for prescription drug and medical device products liability cases. The law prohibited the use of the word "recall" in all but virtually non-existent circumstances, prohibited the use of words like "consumer alert," and the use of government agency logos when it might leave the impression of affiliation with a government agency. It also required that the advertisements, which included attorney websites, advise potential clients that they should consult a physician before discontinuing any medication, as well as a host of other disclaimers that would take up more than 40 percent of a 30-second television advertisement.

     Peck argued that a preliminary injunction should issue because the extensive disclosure requirements and categorical prohibitions on certain words or images that were true and verifiable violated the First Amendment. West Virginia Deputy Attorney General Curtis Capehart represented the defendants, Governor Jim Justice and Attorney General Patrick Morrisey, and argued that Peck's challenge was solely a facial challenge, not both facial and as-applied, and therefore had a heavier burden to overcome. 

     Judge John Preston Bailey took the matter under advisement.

     CCL filed a motion and memorandum seeking a preliminary injunction against the enforcement of a new West Virginia lawyer advertising law that would place restrictions on communications about prescription drug and medical device cases. 

     Among the law's clear violations of the First Amendment, the memorandum describes its absolute prohibition of the use of the word "recall," except when ordered by or part of an agreement with a government agency. The statute, then, prohibits a speaker from using the word recall in the vast majority of instances where it would be true: when the manufacturer undertakes a voluntary recall. Other bans in the statute prevent display of a government agency logo or the use of words like "consumer alert."

     In addition, the statute adds such extensive disclaimers unrelated to the offer of legal services that it would dominate the advertising.

     The case was brought on behalf of a consumer and two West Virginia attorneys. The case is Recht v. Justice.

    CCL filed a challenge to a new West Virginia law, due to go into effect on June 5, alleging that the statute violates the First and Fourteenth Amendments. The statute limits lawyer advertising concerning defective drugs and medical devices by restricting use of the word "recall" in any communication in any medium that solicits clients. It also contains prohibitions on the use of the word "alert" and the logo of any federal or state agency in the advertisement. The statute further requires those advertisements to contain a number of disclaimers, including ones about the product's continued approval by the Food & Drug Administration (FDA) and the need to continue using the drug until advised otherwise by a doctor, neither of which are related to the legal services being offered.

     The case, Recht v. Justice, was filed May 4, in the U.S. District Court for the Northern District of West Virginia. CCL plans to seek a preliminary injunction to prevent the law from going into effect as scheduled.