News

    During April 2020, despite the Covid-19 pandemic, CCL maintained the furious pace of activity that was seen the previous month. Among the highlights of CCL's activities:

• CCL filed an amicus curiae brief on behalf of the American Association for Justice and Public Justice in the U.S. Supreme Court in Ford Motor Co. v. Bandemer, originally schedule for argument in April, but now postponed until the term that begins in October.  Before the Supreme Court, Ford argues that it cannot be subjected to personal jurisdiction in either Minnesota or Montana in two cases in which plaintiffs sued Ford for defective designs that caused serious injury. In one case, the injury was death. Ford asserts that there must be a causation element to jurisdiction, so that it does not matter that the person injured or the injuring event both took place in the place of lawsuit. Instead, it contends that it may only be sued where it is headquartered, where it designed the flawed vehicle, or where the vehicle was first purchased. The CCL-authored brief points out that Ford maintains a continuing relationship with car owners and their vehicles, where its dealerships service the vehicle and it encourages owners to buy Ford parts, even if serviced elsewhere, as part of a "Keep Your Ford a Ford" campaign. In fact, one of the two cars in the suit was serviced in a Ford recall at a local dealership. The clear, continuing relationship with the vehicle in the jurisdiction, the brief argues, demonstrates that there is no unfairness in requiring Ford to defend itself within the home jurisdiction of these plaintiffs. On the other hand, any attempt to require the plaintiffs to sue elsewhere would place a hardship on the plaintiffs.
• CCL participated with co-counsel in filing a supplemental brief in Johnson v. UPS, a case pending in the South Dakota Supreme Court that CCL helped argue in February 2019. The supplemental brief discusses a new U.S. District Court decision that supports liability in the case. UPS had withdrawn workers compensation benefits from the plaintiff six months after she had prevailed on the benefits question in a prior trip to the South Dakota Supreme Court. A jury found it wrongful and awarded both compensatory and punitive damages. The case is still pending.
• CCL also filed a brief on punitive damages in the Volkswagen Emissions MDL, where Volkswagen has outfitted its cars with "defeat devices" designed to trick emissions testing into believing the cars complied with federal and California requirements when they did not. Despite clearly favorable law cited in CCL's brief, the court reduced individual punitive damage awards from $25,000 each to an arbitrary ratio of 4:1, vastly reducing the damages. The cases are now on appeal to the Ninth Circuit.
• CCL also filed supplementary authority in Smith v. Surgery Center, a challenge to Colorado's medical-malpractice damage cap, pending in the state court of appeals.

     In orders issued today, the U.S. Supreme Court denied petitions for certiorari in two cases CCL had won in the courts below. The orders effectively ended both cases.

     In Griffen v. Kemp, an Arkansas trial judge sued the state supreme court and each of its justices in federal court asserting that an order of recusal constituted a violation of his constitutional rights, including a right to preside over cases within his court's jurisdiction. CCL represented the Arkansas Supreme Court and three of its justices, but took the lead in the briefing on behalf of all the justices as the case developed. The District Court dismissed the complaint against the Arkansas Supreme Court, but allowed the case to continue against the individual justices. CCL then sought a writ of mandamus from the U.S. Court of Appeals for the Eighth Circuit, asking that the entire case be dismissed. The writ was granted and dismissal was ordered. The trial judge plaintiff then sought a writ of certiorari, asking the U,S. Supreme Court to restore the action. That petition was denied in Tuesday's order.

     In Burmaster v. Herman, a military contractor brought a Section 1983 action against a private lawyer and private law firm, alleging that they controlled state action that deprived him of his constitutional rights. In the U.S. Court of Appeals for the Seventh Circuit, CCL argued that the action was subject to dismissal on multiple grounds, including failing to state a cause of action because there was no credible allegation that the private defendants could control state action and because the plaintiff's prosecution by the U.S. Attorney's Office was a federal action that does not implicate Section 1983. In addition, CCL argued that the case, brought in the Eastern District of Wisconsin, did not have any connection to the allegations or defendants, all of which were in Louisiana. The Seventh Circuit ruled simply that the courts lacked jurisdiction. The denial of certiorari by the Supreme Court ends that action.

     In a case where the federal trial judge ruled that the plaintiff's claim for a defective medical device survived a preemption challenge but still dismissed the case over a failure to sufficiently allege causation, CCL filed its reply brief, explaining that the complaint satisfied even the most rigorous causation pleading requirements despite being at a disadvantage because further details were only available after discovery could take place.

     In Martin v. Medtronic, Inc., the plaintiff suffered through five years of debilitating pain because the pain medicine dispenser implanted into him had constant cycles of over- and under-infusion due to manufacturing defects. When his physician received permission to replace the device with a newer model, the illnesses that afflicted the plaintiff immediately ceased. The problems the plaintiff suffered mirrored those identified in warning letters, recalls, and inspections from the FDA, demonstrating the causal connection needed to state a valid claim. Nonetheless, the District Court insisted on even greater specificity to survive a motion to dismiss. This, the CCL brief on behalf of the plaintiff, was error.

     CCL President Robert S. Peck participated in the July 21 meeting of the advisory board to the Civil Justice Research Initiative, a joint project of the law schools at the University of California at Berkeley and at Irvine. Chaired by Berkley Law Dean Erwin Chemerinsky, the Initiative focuses its research work on access to justice issues.

     The July meeting, among other issues, considered further outreach from its April symposium at Berkeley on "What's Happening in Federal Court," an outgrowth of research by University of Connecticut professors Alexandra Lahav and Peter Seigelman, which explored a precipitous decline in plaintiff win rates in federal court. Peck participated in the symposium as both a moderator and a panelist.

     The next CJRI symposium will take place on September 28 and explore legal issues surrounding gun violence.

      CCL President Robert S. Peck told Washington Lawyer magazine that U.S. Supreme Court Justice Anthony Kennedy may have erased much of his legacy by announcing his retirement at the end of the most recent term, rather than wait just a bit longer, in an interview today.

     With a nomination likely to be made very quickly and a Senate majority pledging to confirm any  nominee before the 2018 midterm election, the expectation is that Justice Kennedy will be replaced with a far more doctrinaire conservative. That means that many of the issues upon with Justice Kennedy joined the Court's more liberal justices to form a 5-4 majority are in danger of being overturned. Other cases in which he wrote on behalf of the more conservative wing of the Court may turn in a more rigid direction without his moderating influence. When combined with Justice Kennedy's approach to questions presented in cases, where he focused on deciding the case but rarely defined doctrine or imposed a three-part test, Kennedy's nearly three decades on the Court where he was often the decisive swing vote, could become more of a footnote to the judicial revolution that could take place with a clear majority of committed conservative justices, Peck told Sarah Kellogg of the DC Bar's magazine.

     Though plainly conservative, Kennedy had a tendency when deciding rights-based cases to employ an almost mystical phraseology, based on concepts of dignity and liberty that lacked the type of rigor he brought to issues of constitutional structure. Had the justice waited until after the midterm election, Peck speculated, the politics of the confirmation process would have changed and forced the president to consider a more moderate nominee, one more in the mold of Justice Kennedy, than he is likely to choose at this time.

    CCL President Robert S. Peck attended the 2018 Annual Meeting of the American Law Institute in Washington, DC on May 21-22. At the meeting, members debated and approved new Restatements of the Law on Liability Insurance and Intentional Torts to Persons. In addition, the ALI made further progress on the Restatement on tort liability for economic harm. THE ALI publishes the final restatements, which are very influential in the states in how the law might be modernized. ALI members are experienced lawyers, judges, and academics.

     In addition to the work of the ALI, Justice Ruth Bader Ginsburg was awarded the Henry J. Friendly Medal for her contributions to the law. Chief Justice John G. Roberts, Jr., a former law clerk to Judge Friendly, presented the medal to Justice Ginsburg. At an evening session, attendees were treated to a conversation between Justice Elena Kagan and former Solicitor General Paul Clement about the workings of the Solicitor General's office, moderated by Duke law dean David Levi.

     CCL's Robert S. Peck attended the Annual Leaders Forum Retreat held by the American Association for Justice in Einskerry, County Wicklow, Ireland. The retreat, at which Peck has served as a speaker in the past, featured prominent Irish legal figures speaking about their civil justice system. 

  As a member of the committee, CCL President Robert S. Peck attended a rare meeting of the ABA Amicus Curiae Committee in Washington, DC, where the Committee discussed plans to streamline its process and continue to assure quality briefing. ABA President Hillary Bass attended the meeting and was joined at the committee dinner by ABA President-elect Robert Carlson.

      CCL President Robert S. Peck participated in the Spring meetings of the American Association for Justice (AAJ). As a member of the Legal Affairs Committee, Peck heard reports about AAJ's activities to support access to the courts and the right to trial by jury. He gave his own report on some of the litigation developments of particular interest to AAJ members. Among items in his report were recent victories about limiting the use of discovery to litigation and not lobbying purposes, a Minnesota Court of Appeals decision that reversed the dismissal of a complaint in a medical device case on preemption grounds, and a trial court ruling that New Mexico's medical malpractice cap violates jury-trial rights.

      Peck also attended the AAJ Board of Governors meeting as a guest.

     Representing the Arkansas Supreme Court, its chief justice, and two other justices of that court, CCL filed a motion for a temporary stay of discovery pending resolution of its motion to dismiss the case in the U.S. District Court for the Eastern District of Arkansas. The state supreme court and each of its justices were sued by a state trial court judge, alleging that his civil rights were violated when the high court ordered he be recused. The plaintiff-judge had participated in a protest and written a blog post related to a case then pending before him. The Supreme Court, upon a motion from the state attorney general, ordered the judge recused in that case and all similar matters.

     CCL filed a motion to dismiss, arguing that the Eleventh Amendment foreclosed suit against the state supreme court in federal court without its consent. Moreover, the lawsuit failed to state a claim because, among other things, the judge had no property right in hearing particular cases. The due process rights of the litigants to a fair tribunal that has not pre-judged the matter predominated over any right the judge might claim. Similar motions to dismiss were filed by other counsel on behalf of the remaining justices. 

     The plaintiff-judge has made clear that he seeks discovery that will delve into the internal deliberations of the court on the recusal order. The motion to stay, filed on behalf of all defendants, asks that the dismissal motions be determined before discovery commences.