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     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 filed a brief today in the U.S. District Court for the Central District of California defending a jury's assessment of punitive damages against Chrysler for misrepresenting the reliability of the electrical system in a 2012 Jeep.

      In the case, a couple had purchased a 2011 Jeep that had severe electrical system problems that resulted in the vehicle not starting or stalling unexpectedly while on the road. The problems were traced to a module that controlled the electrical system that Chrysler had introduced in 2007, failed repeatedly, and eventually was abandoned by Chrysler. When the couple decided the vehicle was a lemon, Chrysler offered to replace it with a 2012 model that it assured the couple had resolved the problems they experienced. Accepting the offer, the couple soon found the same problems plagued the newer model.

      After Chrysler proved incapable of fixing the car and refused to refund the money, the couple sued. A jury found for the couple, awarding compensatory damages and civil penalties under California's lemon law, as well as compensatory and punitive damages for fraud. The judge, however, took the jury verdict for fraud away, finding the evidence insufficient to support the verdict.

      CCL's Robert Peck argued the appeal of that decision. The U.S. Court of Appeals for the Ninth Circuit restored the fraud verdict, finding the evidence sufficient, but remanded the case to the district court to make a new determination on punitive damages. Today's brief addressed why the punitive damages were supported by clear and convincing evidence, met the criteria for awarding punitive damages under California law, and were not constitutionally excessive.

     In The Dutra Group v. Batterton, the U.S. Supreme Court will consider whether punitive damages are available to injured members of a crew suing for their injuries because the vessel was not seaworthy. CCL President Robert S. Peck co-authored an amicus brief on behalf of the American Association for Justice with AAJ Senior Associate General Counsel Jeffrey White, arguing that the public policy reasons advanced by The Dutra Group do not stand up to scrutiny.

     The case began when Christopher Batterton, a deckhand, was permanently injured when a hatch blew open and crushed his left hand. In his subsequent lawsuit, he alleged the ship was unseaworthy. The U.S. Court of Appeals for the Ninth Circuit held that punitive damages were available in Batterton's case.

     Before the U.S. Supreme Court, The Dutra Group argues that the availability of punitive damages would harm the maritime industry and the American economy more generally, placing companies like theirs at a competitive disadvantage with foreign vessels that would not be liable for punitive damages and that large awards, as well as fear of large awards, have a destabilizing effect on commerce.

     The AAJ amicus brief demonstrates that these public policy arguments are part of a long-running public relations campaign that is refuted by empirical studies and that the U.S. Supreme Court has already reviewed the research and found contradicts claims of runaway punitive damage awards in deciding the Exxon Valdez case in 2008. Instead, the research shows that punitive damages remain rare, are closely related to compensatory damages, and are predictable. Assertions that the availability of punitive damages scare companies to settle meritless claims are equally devoid of empirical support. Instead, the AAJ brief asserts that The Dutra Group's bid to end the centuries-old availability of punitive damages for egregious misconduct is nothing less than a bid to permit reprehensible actions in the name of commerce.

      CCL President Robert S. Peck told the South Dakota Supreme Court today that Fern Johnson's lawsuit against United Parcel Service and Liberty Mutual Insurance exposed a corporate policy and business plan designed to close workers compensation claims, despite the workers' eligibility for lifetime benefits, despite a 13-year legal journey that confirmed those benefits, and despite a court order requiring the payment of those benefits. As a result, he said, significant punitive damages were warranted to vindicate the state's interest in assuring that workers injured on the job receive the compensation that the law mandates and vindicate the judiciary's interest in having its orders obeyed.

     Fern Johnson sued the two companies after obtaining a court order and defending her claims before the South Dakota Supreme Court. Less than seven months after winning her case, her benefits were cut again. She first brought an administrative claim before the state department of labor and won back those benefits. She then brought a bad-faith insurance claim in court. Represented by South Dakota's Goodsell Quinn law firm, Johnson won a $500,000 jury verdict for compensatory damages and a $45 million punitive damage verdict. The trial judge, although indicating her agreement with the jury's award and stating that it was not the product of passion and prejudice, felt compelled to reduce the punitive damages to $10 million. 

     UPS and Liberty Mutual appealed to the state supreme court, claiming that there should have been no liability because they relied upon the advice of counsel, a prominent South Dakota lawyer. They asserted that the trial judge improperly limited that counsel's testimony and denied them a fair trial. Alternatively, if the liability was properly assessed, the defendants argued that the punitive damages were constitutionally limited to a 1:1 ratio. Johnson cross-appealed for restoration of the full $45 million.

     In Peck's portion of the argument, he recited evidence that showed that the defendants had already decided to take away Johnson's benefits before consulting counsel, that counsel's advice had been admitted and considered by the jury and that only his reasoning for it, which was immaterial, was kept out, and that the defendants had spent more on attorney fees than the total liability they claimed was constitutionally mandated, indicating that a further reduction in punitive damages would not achieve its purposes of deterring and punishing their misconduct. He further noted that the full $45 million punitive damage judgment would not harm either company, with their shares of it amounting to 0.5 and 2.5 percent of their net worth, respectively. 

     The case is under submission.

     As part of the team representing the plaintiffs, CCL filed a brief opposing Fiat Chrysler's motion to overturn a jury verdict against them over a vehicle that violated California's lemon law. The jury awarded the cost of the vehicle and $500,000 in punitive damages.

     The trial had centered on the failure of the car's TIPM module, which delivers electricity throughout the car. Its failure, a persistent problem that Chrysler vehicles suffered over a number of years, resulted in the car failing to start or stalling out. The record showed that, although Fiat Chrysler knew about the problem before the family bought the vehicle in question, it failed to warn consumers about the problem.

     Fiat Chrysler argued in its motion that the evidence was insufficient for a jury to find liability and support punitive damages. The brief supports the verdict by demonstrating that ample evidence to support the verdict and that the punitive damages do not violate due process.

Opposing review of a $63 million dollar Massachusetts verdict for catastrophic injuries as a result of taking Children’s Motrin, CCL argued that the petition filed by Johnson & Johnson failed to demonstrate a conflict between courts, present a case that properly raises the question it would like the Court to answer, and show a need for the Court to amplify a rule that the courts of the nation continue to apply consistently.

The case began when Samantha Reckis, then seven years old, was given Children’s Motrin by her father in 2003. At the time, even though the manufacturer was aware of symptoms that could lead to severe skin reactions, it provided no warning that redness, rash or blisters were indicators that use of the drug should cease. After further doses administered on a pediatricians’ instructions and by a hospital, Samantha was diagnosed with Toxic Epidermal Necrolysis (TEN), a life-threatening skin disorder in which the outer layer of skin sloughs off in sheets. In 2006, on the basis of a Citizen Petition, the FDA required this over-the-counter drug to include a warning about redness, rash, and blisters.

Nonetheless, Johnson & Johnson has asked the Supreme Court to reverse the decision of the Massachusetts Supreme Court that found the state cause of action not preempted by federal law, arguing that the FDA’s decision constituted clear evidence that it would not have approved the warning that jury would have found adequate.

CCL’s Robert S. Peck serves as counsel of record at the U.S. Supreme Court in Johnson & Johnson v. Reckis. He is joined on the brief by the team that won the case in the Massachusetts courts, Michael B. Bogdanow, Leo V. Boyle, Bradley M. Henry, and Victoria M. Santoro of Meehan Boyle Black & Bogdanow of Boston.

CCL was retained by the Abel Law Firm of Oklahoma City to assist in bringing an appeal challenging the constitutionality of Oklahoma’s recently enacted cap on noneconomic damages in all tort cases involving bodily injury.

In Beason v. IE Miller Services Inc., the jury awarded plaintiff James Todd Beason $14 million for the serious and permanent injuries, pain, and disfigurement he suffered when he was struck by part of a crane that collapsed while being negligently operated by an employee of the defendant. The jury awarded Mr. Beason’s wife $1 million for her separate damages caused by the defendant’s employee’s negligence. After the jury determined the damages, the trial court judge applied Oklahoma’s cap on noneconomic damages, 23 O.S. § 61.2(F), and reduced the jury’s verdict by more than $5 million.

After the court denied the Beasons’ motion to modify the judgment to conform to the evidence and the jury’s verdicts, CCL President Robert S. Peck and Senior Litigation Counsel Valerie M. Nannery prepared the Petition in Error and filed a motion asking the Oklahoma Supreme Court to retain the appeal rather than delegating the decision to Oklahoma’s Court of Civil Appeals. Although previous legislatures have enacted caps on damages, the Oklahoma Supreme Court has never specifically addressed whether caps on compensatory damages are constitutional. CCL urged the court to finally settle the matter and resolve whether the statute capping damages violates the state’s requirement for a general verdict, the constitutional guarantee to trial by jury, separation of powers, or the state’s equal protection or special legislation protections.

Plaintiffs filed the appeal on September 22, 2015, and the Oklahoma Supreme Court granted CCL’s motion to retain the appeal on October 6, 2015. The Oklahoma Attorney General has made an appearance in the case.

In a petition for certiorari filed today, CCL asked the U.S. Supreme Court to review a Tenth Circuit decision that dismissed claims made on behalf of a child who suffered a severe brain injury as a result of malpractice committed at a military hospital during her delivery. In doing so, the court relied upon the U.S. Supreme Court’s decision in Feres v. United States, 340 U.S. 135 (1950), which carved out an exception to the Federal Tort Claims Act for claims made by active-duty members of the military service that are incident to that service. The Tenth Circuit held that the newborn’s injuries were derivative of the active-duty mother’s and therefore foreclosed under Feres. In contrast, if active-duty parent of the injured child was an active-duty father, Feres would not have stood as an obstacle to seeking compensation through the courts. In addition, several federal circuit courts, notably the Fourth and Eleventh Circuits, treat the baby as a separate patient from the mother, enabling the child to present a claim. The result is that some babies, injured in identical fashion, have a cognizable claim and some do not, either because of what part of the country the delivery took place or because of the gender of the parent.

The petition, filed in Ortiz v. United States, asks the Supreme Court to resolve the split in the circuits and determine whether the differential treatment of children based on a parent’s gender comprises an unconstitutional form of gender discrimination.  CCL President Robert S. Peck serves as counsel of record in the case. He was joined on the petition by Laurie M. Higginbotham of Austin, TX, James E. Puga and Bruce Braley of Denver, CO, and Joseph F. Bennett of Colorado Springs, CO. A response to the petition from the U.S. Solicitor General is the next likely step in the case.

On September 8, CCL filed an amicus brief on behalf of the American Association for Justice in the U.S. Supreme Court urging the Supreme Court to dismiss the case of Spokeo, Inc. v. Robins, No. No. 13-1339, a putative class action with broad implications for consumers, employees and others whose federal statutory rights may have been violated, because it fails to provide a basis to answer the question presented on certiorari.

Spokeo collects publicly available information about individuals and packages it for sale to prospective employers and other customers. Thomas Robins, brought this putative class action, alleging that Spokeo’s report on him falsely indicated that he was older, better educated, employed, wealthier and married. Robins asserted that Spokeo’s failure to take reasonable measures to ensure accuracy violated the Fair Credit Reporting Act, which allows statutory damages of $100 to $1,000 per willful violation. Spokeo argued that Robins showed no “real-world” damages because the false information actually portrayed him more favorably. The Ninth Circuit held that violation of Robins’ statutory right under the FCRA was sufficient to create standing, regardless of actual injury in fact.

The Supreme Court granted review of the question whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, based on a bare violation of a federal statute.

AAJ’s amicus brief, authored by CCL Senior Counsel Jeffrey R. White, suggested that the Court dismiss the Petition in this case as improvidently granted. The statutory violation was not the publishing of false information, but the absence of reasonable procedures for accuracy, required by 15 U.S.C. § 1681e(b). The publishing of false information was the concrete harm the FCRA was intended to prevent by imposing an accuracy requirement. Thus this case does not squarely present the Court with the issue whether Congress can confer standing on a plaintiff who has suffered no concrete injury.

Moreover, the principle that a plaintiff must demonstrate injury-in-fact in addition to violation of a statutory duty is one that the Court has fashioned for public law cases, such as the enforcement of environmental regulation. It has never been a requirement of Article III standing that a plaintiff asserting a private cause of action demonstrate injury in addition to the violation of a legal duty owed to the plaintiff.

On behalf of the American Association for Justice, CCL’s Andre M. Mura and Jeffrey White filed an amicus curiae brief urging the Massachusetts Supreme Judicial Court to uphold a $63 million award against Johnson & Johnson for serious injuries caused by its over-the-counter drug Children’s Motrin. In a unanimous decision issued on April 17, the Court affirmed the award.

CCL’s brief addressed Johnson & Johnson’s claim that this failure-to-warn suit was preempted by federal law governing over-the-counter drugs. CCL explained that there was no basis for preemption here. To establish preemption, the brief explained, Johnson & Johnson was required to prove that there was “clear evidence” that the FDA would not have approved a change to Children’s Motrin’s label to warn of Stevens-Johnson Syndrome or toxic epidermal necrolysis, which are life-threatening diseases. The Court agreed, finding that Johnson & Johnson could not meet this high burden.

CCL’s brief also addressed whether the federal constitution establishes substantive due process limits on the amount of compensatory damages awarded in this case. CCL explained that this case was not a proper vehicle for considering this question, and that, in any event, any substantive due process limits which apply to punitive damages should not be extended to limit compensatory damages. The Court declined to address this question.