News

      A federal court in Nevada today sent a case growing out of a helicopter crash back to state court after it had been removed by the aircraft's manufacturer, Airbus. Airbus claimed that the Federal Aviation Administration had designated the company as a stand-in for the FAA for certain certifications and supplemental design changes. Under a federal statute that protects federal officers carrying out their duties from unfriendly state courts, Airbus had removed the lawsuit from state court to federal court.

      In briefs written by CCL, the Plaintiffs argued that mere compliance with federal regulations and the authority to "self-certify" does not qualify a private manufacturer as a federal officer for purposes of the removal statute. Philip Morris had unsuccessfully made the same argument in the U.S. Supreme Court in 2007, claiming that when it took over tar and nicotine testing from the Federal Trade Commission and used the same methodology to determine the levels of those chemicals in cigarettes that it qualified for federal officer removal. In 2011, the U.S. Court of Appeals for the Seventh Circuit applied the same reasoning that the Supreme Court did in Watson v. Philip Morris, to hold that Boeing was not a federal officer for removal purposes. 

      In today's decision, Riggs v. Hecker, the U.S. District Court found the Seventh Circuit's decision, Lu Junhong v. Boeing, persuasive and ordered the case returned to state court. 

      Federal Judge James Moody Jr. today dismissed a lawsuit filed by a state trial judge against the Arkansas Supreme Court. Declaring that the Eleventh Amendment barred lawsuits against an arm of the state, like the state supreme court, without its consent, the judge dismissed the state high court from the lawsuit. He further held that a state statute intended to protect religious liberty did not constitute a waiver of sovereign immunity to permit other claims against the court to go forward in the case.

     The case was brought by Arkansas Judge Wendell Griffen after the Supreme Court ordered him recused from cases involving the death penalty after he had participated in a public protest on the death penalty and had blogged about capital punishment. At the time of the order, Judge Griffen was presiding over a case in which the death penalty was at issue. The state attorney general made an emergency motion to the Supreme Court, seeking Judge Griffen's recusal.

     Judge Griffen also sued each of the seven justices of the court in their official capacity. The federal judge declined to dismiss the claims brought under federal civil rights law against the justices, stating that he would not consider facts outside the four corners of the complaint at this early stage of the case.

     CCL represents the Arkansas Supreme Court, its chief justice, and two of the other justices, while the remaining justices are represented by other counsel.

     CCL President Robert S. Peck re-joined the Board of Overseers of the RAND Institute for Civil Justice (ICJ) last week, attending its Spring meeting at RAND's headquarters in Santa Monica, California. Peck previously served on the Board from 2004 to 2016, the last three years as chair.

     The ICJ is a think tank that undertakes empirical research designed to make the civil justice system more efficient and more equitable. It is a part of the RAND Corportation, a noted policy research organization with a long history of assisting policymakers obtain the best information available to address issues they face.

     At the Board meeting, Peck suggested that the ICJ undertake new research based on recent U.S. Supreme Court decisions on personal jurisdiction that reduce the ability of plaintiffs to bring all parties responsible for the injuries before a single court at once that could then assess liability and damages. In her dissent in Bristol-Meyers Squibb Co. v. Superior Court, 137 S.Ct. 1773 (2017), Justice Sonia Sotomayor expressed the fear that these decisions will "curtail -- and in some cases eliminate -- plaintiffs' ability to hold corporations fully accountable for their nationwide conduct." Defendant corporations have cited Justice Sotomayor's dissent to claim that that indeed is what the Supreme Court held and intended, and some courts have agreed, holding that plaintiffs must file multiple lawsuits in different states to seek full compensation for their injuries. Research documenting this shift could inform the due-process analysis that undergirds decisions on personal jurisdiction, he said.

This week, CCL filed a response in opposition to Wyeth LLC, Wyeth-Ayerst International Inc. & Wyeth Pharmaceuticals Inc.’s Motion for Summary Affirmance in a Third Circuit appeal that involves the important and recurring problem some have called “snatch and remove.” In the case, Wyeth LLC, the only non-forum defendant sued in Pennsylvania state court on state law claims, filed a notice of removal the day after CCL’s clients filed their complaint. At the time the notice of removal was filed, no defendant, including the two properly joined in-state defendants, had been served. Many other judges have remanded such cases to state court, seeing the removal before service as gamesmanship meant to make an end run around the “forum defendant rule” in 28 U.S.C. § 1441(b)(2), which was intended to limit removal of cases in which a defendant is sued in its home state. The district court judge in this case denied the plaintiffs’ motion to remand, adopting a broad, literal interpretation of the “plain language” of a portion of 28 U.S.C. § 1441(b)(2), and holding that removal was proper because the forum defendants were not “properly joined and served” at the time of removal.

Although this case presents an important issue of first impression, the defendants argued that the U.S. Court of Appeals for the Third Circuit need not address the propriety of removal, even though the plaintiffs preserved the issue for appeal, and could not immediately appeal the district court’s decision on their motion to remand. The defendants argued that the court should decline to review this substantial issue, and summarily affirm the merits of the district court’s decision granting summary judgment on the merits of the plaintiffs’ claims to the defendants. CCL’s Valerie M. Nannery and Jeffrey R. White filed a response in opposition today arguing that the court of appeals has an obligation to address the legal issues that were preserved for appeal, and that failure to do so will leave the lower courts in disarray, with no guidance from the court of appeals. CCL maintained that summary affirmance is inappropriate in this case because the issues on appeal raise substantial questions on which there is no binding authority from the Supreme Court or the Third Circuit.

On March 10th, CCL attorneys filed their opening brief in an appeal presenting an important issue of first impression, whether an out-of-state defendant can remove a case from state to federal court before the in-state defendants are served. The case originated because the plaintiff developed the deadly disease pulmonary arterial hypertension (PAH) after taking the diet drug Fen-Phen. Plaintiffs sued the manufacturers of Fen-Phen, two of which are Pennsylvania corporations, in Pennsylvania state court on state law claims. The next day, before plaintiffs had the opportunity to serve any of the defendants, the only out-of-state defendant removed the case to federal court. Under Pennsylvania rules of civil procedure, immediate service on a Pennsylvania citizen is not feasible, but service must be made within 30 days of filing. Plaintiffs served the two forum defendants and asked the district court to remand because removal was premature and improper because of the presence of two properly joined forum defendants. The district court denied the plaintiffs’ motion to remand, and would not certify its order for interlocutory appeal.

The case remained in federal court and the defendants filed a joint motion to exclude plaintiffs’ expert evidence that her use of Fen-Phen caused her illness under Federal Rule of Evidence 702 and for summary judgment. The district court held that none of plaintiffs’ expert testimony was admissible because it fell short of Pennsylvania’s requirement that experts opine “to a reasonable degree of medical certainty.” Without admissible evidence as to causation, the court ruled, defendants were entitled to summary judgment.

In the brief filed on Tuesday, CCL’s Valerie M. Nannery and Jeffrey R. White asked the U.S. Court of Appeals for the Third Circuit to reverse the district court’s holding that removal of the case from state court was proper, and to vacate the district court’s determination on the merits because removal was premature and improper under 28 U.S.C. § 1441(b)(2), otherwise known as “the forum defendant rule.” This provision limits the cases that can be removed on the basis of diversity jurisdiction when “any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” When a defendant is a citizen of the forum state, there is no local prejudice to the defendant from litigating in state court.  

Because there were forum defendants who were properly joined in the case, CCL argued, removal before service on any party was both premature and improper under the express terms of the removal statute and its purpose. CCL urged the court to reject a reading of the statute that would provide defendants a way to subvert the forum defendant rule by monitoring state court dockets and immediately filing a notice of removal, thus depriving plaintiffs of their proper choice of forum, and filling federal district courts with cases that belong in the state courts where they were filed.

In the alternative, CCL argued that the district court was wrong in granting summary judgment to the defendants because there was admissible evidence that Fen-Phen caused the plaintiff’s PAH. Hired experts and treating physicians alike each concluded, unequivocally, that the plaintiff’s PAH was caused by her use of the diet drug. On appeal, CCL argued that the district court failed to evaluate each expert’s testimony in its entirety, as required by Pennsylvania law. 

On June 19th, CCL Chief Litigation Counsel Louis Bograd argued before the en banc 9th Circuit in two consolidated appeals that address an important issue of federal removal jurisdiction under the Class Action Fairness Act (CAFA). Romo v. Teva, Inc. and Corber v. Xanodyne Corp. both arise out of propoxyphene litigation filed in California state courts. No individual propoxyphene suit in California involves 100 or more claimants, but in total more than 1500 plaintiffs have sued the manufacturers and distributors of propoxyphene there. After plaintiffs invoked a California procedure to coordinate the pending cases before a single judge, defendants removed the cases to federal court, contending that plaintiffs' coordination petition triggered the mass action provision of CAFA, which permits removal where the damage claims of more than 100 plaintiffs are "proposed to be tried jointly." To date, every district court to address the issue has concluded that plaintiffs' petition did not propose a joint trial, and a divided 9th Circuit panel agreed. Before the en banc court, Bograd emphasized that the plaintiffs had never invoked the separate procedure under California law for requesting a joint trial and stressed the differences between coordination and consolidation for trial. Bograd also explained to the court that bellwether trials, the manner in which mass pharmaceutical torts are most often litigated, are not binding on the non-bellwether parties and thus do not constitute a joint trial under CAFA. A decision is expected in a few months. 

Even while before the argument, the defendants had filed petitions for certiorari in the U.S. Supreme Court, fearing that a failure to do so would not preserve their appeal under CAFA’s strict timelines.  CCL’s Bograd and Andre Mura filed briefs in opposition to the petitions. On June 30, the Supreme Court denied both petitions, leaving the matter, at this point, to the Ninth Circuit’s en banc panel.

As discussed in more detail in a prior news entry, the U.S. Court of Appeals for the Ninth Circuit is reconsidering whether a petition pursuant to California Code of Civil Procedure § 404 to coordinate separate state court cases involving common questions before a single judge, constitutes a proposal that the cases “be tried jointly” sufficient to give rise to federal removal jurisdiction under the “mass action” provision of the federal Class Action Fairness Act (CAFA). The defendant drug manufacturers of propoxyphene-containing pain products successfully obtained en banc review after a divided three-judge panel ruled that removal was not allowed in these circumstances. At the same time, they petitioned the U.S. Supreme Court for a writ of certiorari, asking it to decide this issue or hold this appeal pending a decision by the Ninth Circuit en banc.

 CCL’s Louis M. Bograd and Andre M. Mura, representing plaintiffs injured by propoxyphene-containing pain products, have now completed briefing opposing Supreme Court review. Romo v. Teva Pharm. USA, Inc., No. 13-1015; Corber v. Xanodyne Pharm., Inc., No. 13-1016. The briefs in opposition urge the Court to deny the petitions for four reasons. First, the petitions are premature because the en banc Ninth Circuit’s review means there is no final judgment for the Supreme Court to review. Second, the question presented turns predominantly on a question of California procedure which the en banc Ninth Circuit has yet to consider. Third, review by the Supreme Court is not warranted absent a “split” in the lower courts. Fourth, the Supreme Court’s most recent decision concerning CAFA, Mississippi ex rel. Hood v. AU Optronics Corp., 134 S. Ct. 736 (2014), provides sufficient guidance in this area, and lower courts should be given time to apply its teachings before further review by the Supreme Court.

The Supreme Court unanimously ruled today that Germany-based DaimlerChrysler could not be held liable for human rights abuses that took place in Argentina during that country’s “Dirty War” from 1976-1983 by suing the company in California.  The case arose after individuals and relatives of workers at Mercedes Benz of Argentina brought the action because of the Argentine subsidiary’s complicity with the regime in power during that time. The Court held that federal courts in California could not exercise jurisdiction, through Mercedes Benz USA, a wholly owned subsidiary of DaimlerChrysler, given the absence of any California connection to the atrocities, perpetrators, or victims. The Court held that “[e]xercises of personal jurisdiction so exorbitant . . . are barred by due process constraints on the assertion of adjudicatory authority.”

CCL filed an amicus brief on behalf of the American Association for Justice, urging the Court to issue a narrow decision that would not adversely affect assertions of jurisdiction over domestic parent corporations through the actions of their wholly owned subsidiaries that have activities in the forum state. The amicus brief was primarily authored by George Washington University associate dean Alan Morrison, with CCL President Robert S. Peck, New York University law professor Arthur Miller, and University of California at Irvine law dean Erwin Chemerinsky on the brief as well. The decision, written by Justice Ruth Bader Ginsburg, acknowledged that the decision did not reach that issue. As stated, the question decided was whether "Daimler is amenable to suit in California courts for claims involving only foreign plaintiffs and conduct occurring entirely abroad."  Thus, the opinion speaks to the "risks to international comity" of an assertion of jurisdiction over foreign events and involving foreign parties. On the other hand, the Court's discussion of agency indicates that a subsidiary can be a parent's agent for claims where the subsidiary operates, but not elsewhere, thereby preserving the jurisdiction that the AAJ amicus brief urged be left untouched by any decision.

Courtwatchers in the press also followed the decision to see if the Court would limit its decision to the international context. Bloomberg News quoted Peck as describing the opinion as a narrow one that didn’t preclude plaintiffs from pressing a different theory, one that claims a subsidiary was acting as the parent company’s legal agent. 

In an order dated October 7, 2013, the Supreme Court of the United States denied French manufacturer SNFA’s petition for a writ of certiorari. CCL attorneys Andre M. Mura and Robert S. Peck prepared the brief in opposition on behalf of the plaintiff.

As discussed in a previous post, the petition sought review of the Illinois Supreme Court’s ruling that SNFA, a foreign manufacturer of aerospace ball bearings, had sufficient contacts with Illinois such that it was amenable to a products-liability suit arising out of a helicopter crash in the State allegedly caused by defective bearings. Representing the estate of a helicopter crash victim, CCL argued that the court’s ruling is consistent with existing personal-jurisdiction precedent, that the record in the case established that SNFA had sufficient contacts with Illinois, and that further review is unwarranted.  

SNFA, a manufacturer of custom aerospace ball bearings based in France, has asked the Supreme Court of the United States to review the Illinois Supreme Court’s ruling that SNFA is amenable to suit in Illinois for damages arising out of a helicopter crash there. Along with Todd A. Smith and Brian LaCien of Powers, Rogers & Smith, P.C. in Chicago, CCL’s Andre Mura, assisted by CCL’s Robert S. Peck, drafted the brief in opposition on behalf of the plaintiff.

In this case, Michael Russell, then living in Illinois, died when the air ambulance he was piloting, an Agusta 109C helicopter, crashed in the greater Chicago area. The helicopter, manufactured in Italy by Agusta S.p.A., utilized seven tail rotor bearings custom made for that aircraft by SNFA.  Russell’s estate sued the helicopter owner, the helicopter’s manufacturer and distributor, and SNFA, the manufacturer of the custom bearings which were allegedly defective and responsible for the accident. SNFA challenged the Illinois court’s personal jurisdiction. The Illinois Supreme Court, however, concluded that the “plaintiff [in this case] has presented sufficient evidence to establish that [SNFA] engaged in Illinois-specific activity to establish minimum contacts with Illinois under [Justice O’Connor’s] more demanding standard,”—a standard Justice O’Connor described in her plurality opinion in Asahi Metal Industry Co. v. Superior Court of California, Solano County, 480 U.S. 102, 110-12 (1987).

The petition seeks review on the theory that the Illinois Supreme Court’s ruling is inconsistent with Supreme Court precedent. The brief in opposition, however, explains that the court’s ruling is consistent with the Court’s precedent, that the record in the case established that SNFA conducted business in Illinois, that Agusta served as an agent for SNFA in Illinois, providing replacement parts to aircraft needing SNFA’s custom bearings, and that further review is unwarranted.

The case is currently set for the Supreme Court’s September 30^th conference, when the Court is scheduled to review petitions filed over the summer and determine which cases to add to the upcoming term.