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The Pennsylvania Supreme Court has refused to disturb a lower court ruling that Wyeth is liable for punitive damages for its marketing and sale of Prempro, a hormone therapy that combines estrogen and progestin. An epidemiologist has estimated that the use of estrogen plus progestin caused approximately 8,000 to 15,000 extra breast cancers each year for women between 50 to 69 years of age. Wyeth asked the Supreme Court to consider whether its compliance with FDA safety standards should, as a matter of law, negate this liability. CCL’s Andre M. Mura wrote an amicus curiae brief on behalf of the Pennsylvania Association of Justice, arguing that there was sufficient record evidence to demonstrate that Wyeth had superior knowledge of Prempro’s cancer-related risks but failed to warn physicians and in doing so acted in reckless disregard of patient safety. Further, CCL argued that FDA approval of a drug and its label, and FDA oversight of drug safety after a drug is marketed for sale, do not absolve a drug manufacturer of its duty under federal and state law to monitor a drug’s safety profile and warn physicians or patients of known risks. More than one year after briefing and oral argument, the high court dismissed the appeal as improvidently granted, which means the lower court’s ruling permitting punitive damages will stand.

Today CCL filed an amicus curiae brief on behalf of the American Association for Justice, urging the Supreme Court to grant a Petition for Certiorari in a case challenging the immunity of the federal government from suit by active duty military personnel. Read v. United States, No. 13-505. Prior to deployment to Afghanistan, 19-year-old Airman 1st Class Colton Read was admitted to the Travis Air Force Base David Grant Medical Center, the Air Force’s “state-of-the-art,” 3,662-room facility, for routine laparoscopic gallbladder surgery. The inexperienced surgical resident accidentally punctured Read’s aorta, causing massive loss of blood. The supervising surgeon repaired the vessel, but blocked blood flow to Read’s legs. Several hours passed before Read was transferred by air to a civilian hospital. By that time, the damage to Airman Read’s legs was irreversible, and both were amputated.

Read and his wife filed suit under the Federal Tort Claims Act. The district court granted the government’s motion to dismiss based on an exception to the FTCA announced in Feres v. United States, 340 U.S. 135 (1950), for injuries to active duty military personnel that are “incident to” military service. The Fifth Circuit affirmed, observing that, although Feres has been widely criticized, the U.S. Supreme  Court has repeatedly upheld the immunity. The Reads filed a Petition for Certiorari.

AAJ filed an amicus brief authored by CCL Senior Counsel Jeffrey White supporting the Petition. The AAJ brief points out that the Court’s own shifting rationales for the immunity have resulted in inconsistent and unfair results. For example, if Read had been discharged from active duty just prior to surgery or if the same providers at the same facility had inflicted the same malpractice on Read’s spouse or child, the courthouse door would be open to their FTCA suit for damages. In addition, non-accountability removes an incentive for investing in improved care for service members. AAJ urged the Court to revisit and overturn the Feres doctrine, at least for claims of negligent medical care.

On September 25, U.S. District Court judge Robert Lewis Hinkle struck down a new Florida statute that required prospective medial malpractice plaintiffs to authorize ex parte interviews with their treating physicians, beginning 90 days before any lawsuit is filed. 

The case, Murphy v. Dulay, was filed shortly after the new law went into effect July 1.  It challenged a new authorization required during the presuit phase of a medical malpractice claim that permitted defendants, their lawyers, and their insurers to conduct interviews with a patient's treating physicians going back two years before the alleged medical malpractice.  The interviews authorized by the law could be conducted outside the presence of the patient or his lawyer, thereby constituting a broad waiver of physician-patient privilege.  The lawsuit, filed by CCL with Florida lawyers Neal Roth, David Bruckner, and Dana Brooks, challenged the new statute as inconsistent with the federal Health Insurance Portability and Accountability Act (HIPAA).  HIPAA protects a patient's private health information and establishes prerequirements before doctors may be required to disclose the information, even in the course of judicial proceedings.  The Florida statute failed to comply with HIPAA's requirements, as Judge Hinkle detailed in his opinion.

CCL President Robert S. Peck argued the case before Judge Hinkle, who sits on the U.S. District Court for the Northern District of Florida, on September 18.  Opposing counsel included Dr. Dulay's lawyer and the Florida Attorney General's office.  Agreeing with CCL's briefs on behalf of plaintiff Murphy, the judge found that the statutorily mandated authorization was not voluntary and therefor could not constitute consent to disclosure and that the other HIPAA-required safeguards were not part of the Florida procedure.  He enjoined the putative defendant doctor from moving to dismiss any lawsuit filed in state court by the plaintiff on grounds that he did not comply with the Florida law's authorization of ex parte interviews.

Hearing the first challenge to a new Florida law that raises serious privacy concerns, U.S. District Court Judge Robert Lewis Hinkle wondered aloud why any judge would not see the new law as a violation of federal privacy rights.  The Florida law, passed earlier this year and which went into effect July 1, requires a prospective medical-malpractice plaintiff to authorize doctors, their lawyers and their insurers to interview a medical-malpractice plaintiff’s treating physicians without the plaintiff’s lawyer present, beginning 90 days before any lawsuit is brought.  Known in the law as an “ex parte” interview, because only one side of the dispute is present, the law dissolves the doctor-patient privilege, as well as rights guaranteed by the federal Health Insurance Portability Accountability Act (HIPAA).  HIPAA requires that private health information remain private except in certain specific circumstances, such as a result of a court order that follows an opportunity for the patient to object to the disclosure of information unnecessary for the defendant to prepare his defense or where a plaintiff signs a valid authorization.  

Previously, Florida law did not permit ex parte interviews because, as the Florida Supreme Court stated, “were unsupervised ex parte interviews allowed, plaintiffs ‘could not object and act to protect against inadvertent disclosure of privileged information nor could they effectively prove that improper disclosure actually took place.”  Other state courts have pointed out that an ex parte interview carries the danger that ““the physician witness might feel compelled to participate in the ex parte interview because the insurer defending the medical malpractice defendant may also insure the physician witness.”

In Doe v. Dulay, the case before Judge Hinkle, who sits on the federal district court for the Northern District of Florida, CCL President Robert S. Peck argued on September 18 that the Florida law could not be reconciled with the privacy guarantees of HIPAA. 

 “While HIPAA permits a State to enhance privacy rights,” Peck told the judge, “the Florida statute plainly detracts.”  Peck argued that the authorization required by the Florida law to begin the presuit process in that state was not voluntary, lacked necessary specificity, requires revelation of private health information not relevant to the dispute, contained no meaningful right to revoke or to object, and constituted an impermissible compound authorization.  Even the provision that allows a patient to list doctors and dates of treatment that are not subject to ex parte interviews forces the revelation of private information protected by HIPAA.

The defendant doctor’s attorney and the Florida Attorney General’s office both argued that the mandatory authorization form required for commencing the presuit process was voluntary because bringing a lawsuit is a voluntary act.  In addition, even though the authorization form must be signed under state law 90 days before bringing any lawsuit, both opponents asserted that the declaratory judgment sought by the plaintiff in this case was premature.

 Judge Hinkle did wonder why federal injunctive relief was needed at this time, when he believed any judge would find the Florida law invalid.  Peck answered that no prudent lawyer would take a chance that the underlying medical malpractice claim would be dismissed for failure to follow Florida procedure when a valid federal lawsuit could settle the issue in advance.   The judge indicated that he would try to come to a quick decision in the case.

After the Florida Legislature enacted a new law authorizing prospective medical malpractice defendants, their counsel, their insurers, and their witnesses to engage in ex parte interviews with the injured person's treating physicians, CCL, working with Florida lawyers, filed multiple federal and state court challenges to the law as inconsistent with federal privacy rights and violative of Florida constitutional protections. As most people know, health care practitioners provide new patients with a statement of federal privacy rights under a law popularly known by its acronym, HIPAA. These rights provide significant protections of personal health information to prevent disclosure when used for purposes other than to treat the patient's health. In judicial proceedings, federal regulations limit disclosure to what is necessary to assure fair proceedings. The ex parte authorization exceeds that narrow exception.

While CCL's legal challenges proceed, the Florida Medical Association has likened the dispute to a boxing match between doctors and trial lawyers, when in reality the dispute pits patients against the medical establishment, which seeks to discourage redress for injuries by exposing non-relevant private information. The FMA characterization of the dispute is available on their website

In two cases, argued by CCL’s John Vail, Maryland’s highest court, the Court of Appeals, refused to exercise its authority over the common law to adopt antiquated doctrines to modern times.  In Coleman v. Soccer Association of Columbia, the court retained contributory negligence as a complete bar to a plaintiff’s recovery, even if the injured person was only the smallest bit at fault and the defendant was the principal cause of the injury.  Only five jurisdictions retain the rule.  Instead, the court said that the legislature would need to make the change.

Justice Glenn T. Harrell, Jr., in dissent, poignantly chided the majority:

"Paleontologists and geologists inform us that Earth’s Cretaceous period (including in what is present day Maryland) ended approximately 65 million years ago with an asteroid striking Earth (the Cretaceous-Paleogene Extinction Event), wiping-out, in a relatively short period of geologic time, most plant and animal species, including dinosaurs. As to the last premise, they are wrong. A dinosaur roams yet the landscape of Maryland (and Virginia, Alabama, North Carolina and the District of Columbia), feeding on the claims of persons injured by the negligence of another, but who contributed proximately in some way to the occasion of his or her injuries, however slight their culpability. The name of that dinosaur is the doctrine of contributory negligence."

In the second case, Warr v. JMGM Group, the court declined to hold liable a bar, which had served 17 bottles of beer, 3 drinks of hard liquor and at least one other drink to a person who then refused a cab and instead hopped into his car and soon collided with a passenger vehicle, resulting in the death of a ten-year-old girl. The driver was subsequently convicted of homicide. The court held that the bar owed no duty to the child to protect her from the driver and that, in any case, whether such responsibility should be imposed was for the legislature, not the court, to decide.  A dissenting opinion extrapolated from social science research that imposing liability on bars, something known as dram shop liability, would reduce drunk driving deaths by 6.4%, which, in Maryland, would save 14 people per year from deaths due to drunk driving.

Both Coleman and Warr provide examples of a court, vested with authority to manage the common law and adapt it to the times, ceding its authority to the legislature. Where legislative stalemate is all too common and the law must adopt to changed circumstances and the lessons of experience, judicial deference of the sort envisioned by these cases does not serve the cause of justice.

The joint Spring Meeting of the ABA’s Judicial Division and Tort, Trial and Insurance Practice Section in Washington, D.C. featured CCL President Robert S. Peck in continuing legal education sessions on Supreme Court practice and on appellate issues.

Peck moderated a conversation about Supreme Court practice with former Solicitor General Paul Clement, former acting Solicitor General Neal Katyal, and Assistant Attorney General Beth Brinkman.  Including Peck, the four Supreme Court practitioners represent more than 100 oral arguments before the Court.  The panelists discussed differences in practicing before the Supreme Court at each stage of the process from other appellate courts. The Supreme Court session took place April 25.

The following day, Peck was a panelist on issues between trial and appellate courts.  In addition to Peck, other panelists included Chief Judge Eric Washington of the District of Columbia Court of Appeals, U.S. Magistrate Judge Jeffrey Cole of the Northern District of Illinois, retired Maryland Judge William D. Missouri, and lawyer Denise Dimascio.  The panel discussed preservation of issues and other issues that come up during an appeal.

In an amicus brief filed this week in the Missouri Court of Appeals, CCL Senior Counsel Jeffrey White argued that an employer is not entitled to withhold taxes from a judgment awarded under the Federal Employee Labor Act.  The issue arose after a jury awarded Lawrence Mickey nearly $400,000 against BNSF Railway under FELA for a permanently disabling injury to his back and knees. The employer railroad tendered payment after withholding Railroad Retirement and Medicare taxes. The trial court declined to credit BNSF for payment of the full judgment.

In the Missouri Court of Appeals, the railroad, with amicus support from the IRS, contends that, although the injury payments are excluded from “income” for federal income tax purposes, they are “wages” and “compensation” for purposes of federal employment taxes, including Medicare and Railroad Retirement taxes.  This appears to be an unprecedented change in the IRS position on the taxability of personal injury awards, which could chill the pursuit of some FELA actions and make settlement more difficult. CCL's brief was filed on behalf of the American Association for Justice in the Missouri Court of Appeals on April 9.

A Philadelphia federal court struck a blow this week against intimidation of medical expert witnesses, awarding almost $200,000 in a false light claim brought against the American Association of Orthopaedic Surgeons (AAOS). Decision.

The case was reported in BNA’s Health Law Reporter, with extensive commentary from CCL attorney John Vail.  CCL was a pioneer in fighting intimidation of medical expert witnesses by medical professional societies.

In the Philadelphia case, Dr. Stephen Graboff was awarded damages when the AAOS published results of its internal disciplinary proceedings, knowing those proceedings excluded evidence showing Graboff had committed no misconduct.

A decade ago a favorable Seventh Circuit decision encouraged medical societies to create systems for “peer review” of medical expert testimony, systems in which self-interested doctors reviewed expert testimony of doctors who had the temerity to testify on behalf of plaintiffs.  A well-reasoned decision from Florida, Fullerton v. Fla. Med. Ass'n, Assoc., 973 So.2d 1144 (Fla. 1st DCA), Opinion Withdrawn &  Superseded on Denial of Reh’g by 938 So.2d 587 (Fla. 1st DCA 2006), argued by Vail, helped put the brakes on the effort, as did a $350,000 defamation verdict in a Minnesota case Vail co-counseled, Yancey v. Weis (Dist. Ct., 4th Dist. Minn. 2009).

The BNA piece quotes Vail describing the rigors of cross-examination in a medical malpractice trial, the superiority of that method for finding truth, and how extra-judicial review of expert testimony is incompatible with trials.

The Supreme Court has denied certiorari in Treasurer, Trustees of Drury v. Goding, ending the long-running effort by an ERISA health plan to impose a duty on a plaintiff’s law firm to reimburse the plan for medical benefits paid to the plaintiff. The plan argued that, after obtaining a settlement from the tortfeasor, the law firm owed a duty to reimburse the plan for medical benefits provided to the plaintiff, rather than remit the proceeds to the firm’s client. The Eighth Circuit rejected such a duty. 692 F.3d 888 (8^th Cir. 2012), reh. and reh. en banc denied, Nov. 12, 2012. The Supreme Court denied review on March 25, 2013. CCL's Jeff White represented plaintiff and his law firm.