News

     Today, the City of Sacramento filed a federal action against Wells Fargo for discriminatory lending practices that charged minority borrowers more than non-minorities. CCL joined the legal team representing the city in this action.

     Similar cases in which CCL is a co-counsel are pending on behalf of the cities of Miami, Miami Gardens, Philadelphia, and Oakland.

Equity and fairness can trump even an emphatic statute of limitations, the Supreme Court held on April 22, 2015, applying the principle to the time limits imposed by the Federal Tort Claims Act. United States v. Wong, No. 13-1074.

The FTCA waives sovereign immunity for harm caused by the negligence of federal employees. However, the claimant must file an administrative claim with the agency involved within two years after the cause of action accrues. Additionally, the claimant must file suit within 6 months after the agency’s denial. Claims that do not comply “shall be forever barred.” The Court’s decision involves both time limits.

In Wong, plaintiff sought damages arising out her detention by the Immigration and Naturalization Service. However, she was not able to timely file suit because the district court did not grant her motion to add the FTCA claim to her existing complaint until after the six-month deadline had passed.

In United States v. June, No. 13-1075, plaintiff’s decedent was killed in an auto accident in 2005 when a driver lost control of her vehicle on an interstate and crossed through the cable median barrier into oncoming traffic. Plaintiff sued the United States in 2009, after discovering that the Federal Highway Administration had falsely reported that the cable median barrier had passed mandatory federal crashworthiness tests.

In both cases, the Ninth Circuit held that the FTCA time limits may be equitably tolled where plaintiff was diligent in pursuing her claim but was prevented from complying by circumstances beyond her control, particularly where the government played a role in creating those circumstances. The Supreme Court granted certiorari to resolve a circuit split on the question.

An AAJ amicus brief, prepared by CCL Senior Counsel Jeffrey R. White, urged the Court to affirm. Neither the text of the FTCA nor the purpose of the statute suggest that Congress intended to preclude the tolling of the time limits where equity requires. In addition, equitable tolling permits courts in cases like Wong and June to avoid depriving of injured claimants of their statutory causes of action in violation of due process and right of access to the courts. 

The Court upheld the Ninth Circuit by a 5-4 margin. Justice Elena Kagan, writing for the Court, rejected the government’s primary argument – that the time requirements were “jurisdictional” and not subject to equitable tolling. Although courts in earlier times used the term “jurisdictional” more loosely, Justice Kagan adhered to the Court’s more recent position that a time bar may be deemed jurisdictional only where Congress has provided a clear statement to that effect. Congress did not intend to exempt the federal government from the general rules that allow equitable tolling. Rather, the FTCA makes the United States liable “in the same manner and to the same extent as a private individual under like circumstances.”

On November 12, 2014, CCL filed an amicus curiae brief for AAJ in a pair of Federal Tort Claims Act cases in the Supreme Court of the United States. AAJ’s brief, prepared by CCL Senior Counsel Jeffrey R. White, urges the Court to hold that federal courts may suspend the statutory time limits where equity requires.

The FTCA waives sovereign immunity for harm caused by the negligence of federal employees. However, the claimant must file an administrative claim with the agency involved within two years after the cause of action has accrued. Additionally, the claimant must file suit within 6 months after the agency’s denial. Claims that do not comply with these deadlines “shall be forever barred.”

 In United States v. Wong, No. 13-1074, plaintiff sought damages arising out her detention by the Immigration and Naturalization Service. While awaiting denial of her administrative claim by the INS, plaintiff filed a motion for leave to amend her existing complaint to add an FTCA claim. However, the district court did not grant her motion until after the six-month deadline had passed.

 In United States v. June, No. 13-1075, plaintiff’s decedent was killed in an auto accident in 2005 when a driver lost control of her vehicle on an interstate and crossed through the cable median barrier into oncoming traffic. Plaintiff sued the United States in 2009, after discovering that the Federal Highway Administration had falsely reported that the cable median barrier had passed mandatory federal crashworthiness tests.

In both cases, the Ninth Circuit held that the FTCA time limits were subject to equitable tolling in appropriate cases where plaintiff was diligent in pursuing her claim but was prevented from complying with the limitations by circumstances beyond her control, particularly where the government played a role in creating those circumstances.

AAJ argued to the Supreme Court that the Ninth Circuit’s holding comports with the text of the FTCA, which provides that the federal government “shall be liable in the same manner and to the same extent as a private individual under like circumstances.” Courts have historically exercised their equitable power to toll statutes of limitations in appropriate cases. Equitable tolling also comports with Congress’s purpose of providing redress to those injured by federal government employees. In addition, equitable tolling permits courts in cases like Wong and June to avoid depriving of injured claimants of their statutory causes of action in violation of due process and right of access to the courts. 

The Missouri Supreme Court held that a railroad may not withhold Railroad Retirement Taxes or other employment taxes from payment in satisfaction of an FELA on July 8, closely tracking an amicus brief filed by CCL Senior Counsel Jeffrey White on behalf of the American Association for Justice. Mickey v. BNSF Ry. Co., --- S.W.3d ----, 2014 WL 3107443 (Mo. July 08, 2014). 

A jury awarded former brakeman Lawrence Mickey nearly $400,000 against BNSF Railway under FELA for a permanently disabling back and knee injuries. BNSF tendered payment in satisfaction in the amount of the judgment less an amount it withheld for Tier 1 and Tier 2 Railroad Retirement taxes and Medicare tax. The trial court declined to credit BNSF for payment of the full judgment. On appeal, the railroad argued that a FELA judgment that includes damages for lost wages is deemed “compensation” under the Railroad Retirement Act and taxable under the Railroad Retirement Tax Act. The United States filed an amicus brief supporting BNSF; AAJ’s brief was filed in support of Mickey. The appeals court affirmed without reaching the issue of the taxability of the FELA award, Mickey v. BNSF R. Co., 2013 WL 2489832 (Mo. App. 2013), and the case was transferred to the Supreme Court of Missouri.   

The Missouri Supreme Court held that the FELA damage award was not subject to Railroad Retirement taxes and thus was not subject to withholding by BNSF, as CCL’s brief argued. Because damages paid on account of personal injury are not “income,” pursuant to Internal Revenue Code § 104, they cannot be “wages” or “compensation,” which are narrower categories, for purposes of employment taxes. The railroad’s reliance on the Railroad Retirement Act was inapposite because that statute governs the calculation of retirement benefits, not taxes. 

CCL’s Louis M. Bograd and Andre M. Mura have completed briefing for appeals pending before the en banc U.S. Court of Appeals for the Ninth Circuit, on behalf of plaintiffs injured by propoxyphene-containing pain products. Corber v. Xanodyne Pharm., Inc., No. 13-56306; Romo v. Teva Pharm. USA, Inc., No. 13-56310. These plaintiffs filed separate suits for damages in California state court, and then counsel filed a petition for coordination under California Code of Civil Procedure (“CCP”) 404. The defendants then immediately removed the suits to federal court, based on a provision of the Class Action Fairness Act which authorizes removal of “mass actions.” Plaintiffs requested that the federal district court remand the cases to state court, because these suits did not qualify for removal under CAFA. To qualify as a removable mass action under CAFA, Plaintiffs explained, 100 or more plaintiffs must propose that their cases be tried jointly. The district court and a divided panel of the Ninth Circuit agreed with Plaintiffs that removal was not proper because the plaintiffs had not proposed that their cases be tried jointly, and thus ordered the cases remanded to state court. The Ninth Circuit then agreed to consider this issue en banc.

Plaintiffs argued in supplemental briefing filed yesterday that the filing of a petition for coordination under CCP 404 is not, by itself, a proposal that Plaintiffs’ claims be tried jointly within the meaning of CAFA. In addition, Plaintiffs argued that none of their written submissions requested a joint trial. Lastly, Plaintiffs explained that the Supreme Court’s recent decision in Mississippi ex rel. Hood v. AU Optronics Corp., 134 S. Ct. 736 (2014), dispels any doubt that remand is warranted here. For these reasons, Plaintiffs urged the en banc Ninth Circuit to affirm the district court’s remand order.

The en banc Ninth Circuit is scheduled to hear oral argument in June.  

On April 11, the U.S. Court of Appeals for the 10^th Circuit handed down its opinion in Teague v. Johnson & Johnson, an appeal raising issues of federal jurisdiction under the “mass action” provision of the Class Action Fairness Act (CAFA). More than 600 plaintiffs who had suffered injury as a result of their use of transvaginal mesh medical devices manufactured by Johnson & Johnson sued the company in eleven separate actions, each with fewer than 100 plaintiffs, in state court in Oklahoma. Defendant removed the cases to federal court contending that, because all of the cases were before the same judge, the cases constituted a mass action for purposes of federal jurisdiction under CAFA. After the District Court ordered the cases remanded to state court, J&J sought and received permission to appeal the issue to the Court of Appeals.

CCL submitted an amicus brief to the 10^th Circuit on behalf of the American Association of Justice, written by CCL’s Chief Litigation Counsel, Louis Bograd. CCL argued that the filing of multiple, similar lawsuits each with fewer than 100 plaintiffs, without more, does not constitute a proposal that the separate suits be “tried jointly” and thus is insufficient to confer federal jurisdiction as a “mass action” under CAFA.

The 10^th Circuit panel unanimously agreed with CCL, AAJ, and the plaintiffs, and affirmed the district court’s remand order. The Court rejected defendant’s contention that plaintiffs “implicitly” proposed a joint trial by filing multiple lawsuits within a single jurisdiction, where plaintiffs had not asked that the claims be consolidated or coordinated for trial in any way.

Teague is just one of a series of cases in which CCL has defended plaintiffs’ right to sue in the forum of their choice and opposed efforts to remove cases to federal court under the mass action provision of CAFA.

Asserting that decisions in the federal circuits evince confusion and conflict on whether the statute of limitations in the Federal Tort Claims Act (FTCA) is subject to equitable tolling and under what circumstances, CCL prepared and filed a petition for certiorari in the U.S. Supreme Court Monday in Sanchez v. United States. The underlying case involves the death of a mother (and anesthesiologist by profession) after giving birth to her third child, allegedly because her doctors failed to perform an immediate cesarean hysterectomy because of the patient’s known preexisting condition.  Plaintiff’s counsel, hired nearly a year later, still needed to make strenuous efforts to obtain a death certificate, which only became available more than a year later, and the patient’s medical records.  Complying with all the rigorous requirements of Massachusetts law and filing within the three-year state statute of limitations, the plaintiff was surprised to learn that the private doctors who cared for the plaintiff at a private hospital and who worked for a private health center were deemed federal employees for purposes of the FTCA. The United States substituted itself as defendant, removed the case to federal court, and then successfully moved for dismissal because the FTCA statute of limitations is only two years, not the three years provided by Massachusetts law.

 In rejecting the argument that equitable tolling should permit the action to go forward, the First Circuit held that the statute of limitations is jurisdictional and that counsel should have done more to discover the imputed federal status of the defendant-doctors.  The ruling conflicts with decisions in the Third, Seventh and Ninth Circuits.  In fact, the United States has filed a petition for certiorari, arguing that two Ninth Circuit decisions are erroneous and calling the landscape of decisions within the federal circuit to be fractured and confused.  CCL’s Petition was written by Robert S. Peck and Andre M. Mura and argues that the issue remains unresolved despite repeated reexaminations in the circuits, all of whom but the Tenth Circuit engage in some type of equitable tolling analysis, whether those courts believe it proper or not.  The analysis, however, still differs by circuit, despite the fact that there is no public record means of determining the imputed federal status of individual doctors, particularly when compulsory discovery is unavailable before a case is filed.  A decision on certiorari is expected before the end of the Supreme Court term.  

On March 20, 2014, the Illinois Supreme Court rejected a defendant doctor’s claim that he was entitled to immunity from medical negligence claims under the state’s Good Samaritan Act because neither he nor his employer charged a fee for the services to the hospital patient he injured. Representing the American Association for Justice (AAJ), CCL’s Valerie M. Nannery filed an amicus curiae brief in support of the plaintiffs in the Illinois Supreme Court urging the court to hold that doctors who have a duty to provide emergency services to patients are not entitled to immunity for their negligence when providing those services, and that doctors cannot escape liability for negligent emergency care simply by not billing the patient. The brief provided a national and historical perspective on Good Samaritan immunity laws and their purposes.

In the case, Home Star Bank v. Murphy, Illinois Supreme Court rejected the defendant doctor’s argument that because he was employed by the emergency room services provider and not the hospital, and because neither the patient nor his insurer were billed for the doctor’s services, the terms of Illinois’ Good Samaritan Act shielded him from liability for negligence because the services were provided “without fee.” The court’s decision effectively overturns a line of cases from Illinois’ courts of appeal that read the terms of the statute narrowly and applied Good Samaritan immunity to doctors performing their jobs in hospital settings. The court reasoned that the Illinois legislature never intended for Good Samaritan immunity to apply to a doctor who provides emergency services as a part of his job for which he is paid. Even though the patient and his insurer were not billed for these services, the services were not provided “without fee” as that term should be read. The court wrote that a narrow interpretation of that term would thwart the “unmistakably obvious legislative intent” of encouraging volunteerism and protecting generous and compassionate actors from liability. In so holding, the court discussed the leading case on these issues from California, Colby v. Schwartz, 144 Cal. Rptr. 624 (Cal. Ct. App. 1978), cited throughout AAJ’s brief. The decision brings Illinois back into line with other states with similar Good Samaritan immunity laws.

The plaintiffs were represented by AAJ member and current Board of Governors member from Illinois Keith Hebeisen and Bob Sheridan of Clifford Law Offices in Chicago, IL. The opinion of the Illinois Supreme Court is attached.

In Oklahoma, a general law of intentional misconduct exists which recognizes that, when a person invades the legal interests of another with the desire to cause harm or acts with the knowledge that an injury is substantially certain to result from the person’s conduct, that person has committed an intentional tort. But the Oklahoma Legislature has enacted a law making workers’ compensation the exclusive remedy when the employer acts with knowledge that an injury is substantially certain to result from the employer’s conduct. The Legislature has thus extended the workers’ compensation law, which concerns accidents and has never covered intentional misconduct, to cover certain intentional misconduct by employers.

CCL’s Andre M. Mura, along with Larry Tawwater and Darren Tawwater of the Tawwater Law Firm, are challenging the constitutionality of this law in Wells v. Oklahoma Roofing & Sheet Metal, Inc. The complaint in this case, filed by a family member of a deceased employee in state district court, alleges that the employer either desired to cause the employee harm or knew that such harm was substantially certain to occur from its actions. Recognizing that the Oklahoma Legislature has enacted a law that purports to eliminate the substantial-certainty standard, the complaint also seeks a declaration that the Oklahoma Legislature’s adoption of a stricter standard of intent for a worker’s intentional tort claim against employers than the Restatement standard of intent which would be applied to any other intentional tort violates the Oklahoma Constitution’s prohibitions on special laws, Okla. Const. art 5, §§ 46, 59. To be clear, this is not a legal challenge to the entire workers’ compensation law, which is constitutional because it applies equally to all similarly situated individuals; this is a challenge to a single provision, 85 O.S. § 12, which does not embrace all the classes that it should naturally embrace, and creates preferences and establishes inequality, in violation of the Constitution.

The Defendant has moved to dismiss the complaint, contending that the statute is constitutional, and that Plaintiff has failed to state a cause of action for intentional tort as defined by statute. Plaintiff has filed a response urging the trial court to deny the motion because the statute is an unconstitutional special law, and because the Defendant has failed to show that the complaint is deficient.

This case presents a significant constitutional question which may ultimately be decided by the Oklahoma Supreme Court.

On Feb. 18, 2014, the American Association for Justice (AAJ), along with the New Jersey Association for Justice (NJAJ), filed an amicus brief in a case of substantial interest to product liability attorneys, Aaroma Holdings, LLC v. Diacetyl Plaintiffs, No. 13-1467 (3rd Cir.).  Emoral Inc. was a manufacturer of diacetyl, a chemical for food flavorings, such as butter flavor for theater popcorn. Plaintiffs are employees of flavoring manufacturers who developed serious and permanent lung damage caused by exposure to the chemical. Emoral sold its assets to Aaroma Holdings, which has continued much of Emoral’s operations, and declared bankruptcy.  The bankruptcy trustee then entered into a settlement that released Aaroma from any claims that were part of the bankruptcy estate. A number of lung-injury plaintiffs pursued their cause of action in New Jersey state courts, contending that Aaroma could be held liable as a “mere continuation” of Emoral. Aaroma moved the federal bankruptcy court to enforce the settlement agreement and enjoin the state court actions. The bankruptcy court denied the motion, but the district court reversed, and the Third Circuit affirmed. The court of appeals held that the injured workers’  claims were generalized claims similar to other creditors of Emoral and were thus settled by the Trustee’s settlement.

The amicus brief supports plaintiffs’ motion for rehearing or rehearing en banc. The brief, prepared by David J. Molton, New York, NY, with assistance from CCL’s Jeffrey White, argues that the personal injury claims are individual claims that belong to the plaintiffs, rather than to the bankruptcy estate. To hold otherwise undermines the strong public policy behind successor liability which preserves legal redress for wrongful injury and shifts the costs of injury to the corporation that profits from the continuation of Emoral’s business and could spread the costs of the injuries caused by that business.