Ending Johnson & Johnson’s Bid to Avoid Liability, U.S. Supreme Court Denies Certiorari in Children’s Motrin Case

January 19th, 2016

The U.S. Supreme Court today ended pharmaceutical manufacturer Johnson & Johnson’s bid to avoid liability for failing to warn doctors and parents that the appearance of redness, rashes or blisters after taking Children’s Motrin can lead to serious consequences. In 2003, a feverish seven-year-old Sammie Reckis was administered Children’s Mortin by her father. When she received no relief, her pediatrician administered another dose. Sammie was taken to the hospital after blisters began to appear, where yet another dose was given. Blisters soon appeared all over her body, and she was diagnosed with Toxic Epidermal Necrolysis (TEN), a life-threatening skin disorder that is usually fatal. The top layer of her skin began drying and sloughing off in sheets and, to ease her pain, Sammie was placed into a medically induced coma. She suffered heart and liver failure, a stroke, an aneurysm, and a cranial hemorrhage. She is now a tremendously underweight, blind adult. A jury found Johnson & Johnson liable and set compensation for Sammie and her family at $63 million.

Johnson & Johnson, after losing in the Massachusetts Supreme Judicial Court, asked the U.S. Supreme Court to take the case, claiming that the state courts ignored clear evidence that the Food & Drug Administration would have forbidden it from placing a warning about redness, rash and blisters on their label and arguing that the Massachusetts decision conflicted with one from the Chicago-based U.S. Court of Appeals for the Seventh Circuit. In opposition on behalf of the plaintiffs, CCL argued that not only did not clear evidence exist that the FDA would prosecute Johnson & Johnson for providing a warning that would have spared Sammie her nightmare, but that subsequent FDA actions requiring warnings about redness, rashes and blisters on the label supported the plaintiffs. Moreover, the claimed conflict between appellate courts was an imagined one, given that the essential holdings of the two courts were the same.

CCL’s Robert S. Peck served as counsel of record on the Supreme Court brief, where he worked with Michael Bogdanow, Leo Boyle, Brad Henry, and Victoria Santoro of Boston’s Meehan, Boyle, Black & Bogdanow, P.C.

CCL Seeks Invalidation of Florida Law Extending “Sovereign Immunity” to Private University Medical Faculty

January 15th, 2016

In a brief in support of summary judgment filed in a Florida trial court, CCL joined Florida lawyers in seeking invalidation of a Florida statute that extends the state’s immunities from lawsuits to the medical faculty of a private university when practicing medicine at Jackson Memorial Hospital, which is operated by a county agency. The declaratory judgment action argues that the legislature lacked authority to provide sovereign immunity to a private party and that the extension violates a variety of patients’ constitutional rights.

The disputed statute was enacted in 2011 to immunize medical faculty at the University of Miami from malpractice liability when scheduling their patients at Jackson. The immunity does not cover the faculty when they practice at the University of Miami hospital across the street from Jackson. In the immunized cases, a patient injured through malpractice must sue the State of Florida, whose liability is limited by the state tort claims act. Any liability assessed must then be reimbursed by the university.

The plaintiff’s summary judgment brief, filed January 15, argues that the Florida Constitution only authorizes the legislature to waive immunity, not extend it, constitutes impermissible special legislation, and prohibits the state from lending its credit to a private party. In addition, the brief contends that the extension of immunity violates the patient’s access to courts, jury trial, equal protection and due process rights. CCL’s Robert S. Peck represents the plaintiffs, along with Neal A. Roth and Rachel Furst of Grossman Roth, P.A.

Peck Argues Against Motion to Dismiss Miami Gardens Fair Housing Case

January 8th, 2016

In a hearing held in the federal district court in Miami, CCL President Robert S. Peck argued that there were no grounds to dismiss the complaint filed by the City of Miami Gardens, Florida against Wells Fargo Bank over its minority mortgage lending practices. Wells Fargo argued that the 2015 U.S. Supreme Court decision in Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2521 (2015), had imposed a heightened pleading standard in disparate-impact claims brought under the Fair Housing Act. Peck denied that any additional pleading requirements were imposed and pointed out that the Supreme Court had previously chastised the Court of Appeals for the Second Circuit for attempting to impose one. Instead, as the Supreme Court’s decisions consistently hold that the plain and simple pleading required by Rule 8 of the Federal Rules of Civil Procedure govern.

CCL Files Opening Brief in LA Fair Housing Appeal

January 6th, 2016

Arguing that the District Court applied the wrong standard, which led to the wrong approach, CCL, representing the City of Los Angeles, filed the opening brief in a case where the City has sought compensation from Wells Fargo Bank for lost tax revenues and for remediation costs as a result of the a practice of steering minority borrowers to more expensive and riskier loans than they were eligible for, resulting in foreclosures and other problems. A federal district court granted the bank summary judgment because it held that the government-insured and high-interest loans offered to these borrowers during the prior two years were not inherently discriminatory and therefore did not satisfy the statute of limitations.

The brief, largely written by CCL President Robert S. Peck, argued that the City’s claims were not tied to specific characteristics of particular loan categories, but to the practice of directing minorities to higher cost loans. As in a 2015 decision of the Eleventh Circuit won by CCL for the City of Miami, the bank’s switch from one type of loan to another did not render the practice “any less ‘continuing.’”

In addition to CCL, other counsel on the brief include Dean Erwin Chemerinsky of the University of California-Irvine law school, Joel Liberson of Tare Resources, the Hagens Berman law firm, and Los Angeles City Attorney Michael Feuer.

Challenge to Florida Immunity Statute Survives Motion to Dismiss

December 9th, 2015

A state circuit court in Miami has denied the University of Miami Hospital’s motion to dismiss a declaratory judgment action challenging a Florida law that gives governmental immunity to private hospitals designated as teaching hospitals. The December 9 ruling rejected arguments that the complaint, filed August 11, 2015, was deficient. The hospital was ordered to answer the complaint.

In the case, Vallecillo v. Ehammady, CCL’s Robert S. Peck is working with Neal Roth of the Miami law firm of Grossman Roth.

CCL Files Brief in Opposition to Certiorari in U.S. Supreme Court Case involving Children’s Motrin

December 9th, 2015

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.

Nebraska Federal Cap Challenge to Head to Eighth Circuit

November 25th, 2015

Only hours after CCL, along with co-counsel Dr. Patrick Cullan of Omaha’s Cullan & Cullan, filed their sur-reply brief on the constitutional issues, the U.S. District Court issued its opinion upholding a jury’s verdict of $17 million but reduced the judgment to $1.75 million in line with Nebraska’s cap on damages in medical malpractice cases. The underlying case involved a child born with severe brain damage due to medical malpractice.

Although the court rejected all of the defendant hospital’s post-trial objections to the verdict, it also rejected all of the constitutional challenges to the cap. In finding no violation of the Seventh Amendment’s right to trial by jury, the court reasoned that the right is limited to cases involving more than $20 and that this limit on federal jurisdiction may not apply to state courts of general jurisdiction might not possess, making application of the jury-trial right to the states problematic. The court further reasoned that the cap, which is supported by a state fund, assures a “more certain recovery,” as in workers compensation laws, thereby providing a constitutional basis for its imposition.

CCL’s Robert S. Peck and Valerie Nannery worked on the constitutional arguments in the District Court brief and will continue in that role as the case is appealed to the Eighth Circuit in the case, Schmidt v. Bellevue Medical Center.

CCL Files Opening Brief in Appeal of Los Angeles Lawsuit Against Bank of America

November 17th, 2015

Arguing that the District Court imposed novel requirements for compliance with the Fair Housing Act’s statute of limitations, CCL filed the opening brief for the City of Los Angeles in its Ninth Circuit appeal of a ruling granting summary judgment to defendant Bank of America. The city’s lawsuit accused the bank of steering minority borrowers to more expensive and riskier loans than it offered other borrowers, resulting in foreclosures, lowered property tax revenues, and expenditures for remediation costs.

The District Court granted the bank’s motion for summary judgment. It reasoned that a predatory loan, foreclosure, and economic injury to the city all had to take place within two years of the lawsuit’s filing. The FHA has a two-year statute of limitations that begins to run only after termination of a discriminatory lending practice. The city asserted that the practice at issue did not terminate until nine months after the lawsuit was filed. As a result, the brief argued, the lawsuit was timely.

The evidence adduced showed riskier and more expensive loans issued within the limitations period, fully meeting the requirements of the statute of limitations. There is no requirement, the brief added, that the foreclosure and the economic injury to the city also take place within that period of time. Because evidence demonstrated that foreclosures typically take about three years from closing of the loan, the District Court’s ruling would effectively immunize discriminatory lending from FHA liability, a consequence plainly at odds with the purposes of the housing statute.

CCL President Robert S. Peck serves as counsel of record for Los Angeles in the case. He was joined on the brief by Dean Erwin Chemerinsky of the University of California at Irvine law school, Joel Liberson of Tare Resources, and Elaine Byszewski and Lee Gordon of Hagens Berman. In September, Peck won three decisions from the Eleventh Circuit on behalf of the city of Miami, Florida, where similar lawsuits were filed against Bank of America, Wells Fargo, and Citibank. Peck is also representing Los Angeles in an appeal of another case against Wells Fargo in the Ninth Circuit.

CCL Files Opposition Brief to Bank’s Motion to Dismiss FHA Case brought by the City of Miami Gardens, Florida

October 26th, 2015

In a case held in abeyance during the pendency of CCL’s successful Eleventh Circuit appeal on behalf of the City of Miami, Florida, the City of Miami Gardens filed an amended complaint, asserting that Wells Fargo Bank had violated the Federal Housing Act by steering minority borrowers to more expensive and riskier loan products than they qualified for, resulting in foreclosures of properties, the loss of tax revenues for the city, and additional expenses in remediating neighborhoods and properties in the areas of the city affected by foreclosures. In response, Wells Fargo made a motion to dismiss the amended complaint, arguing that the handful of loans identified as within the statute of limitations period had not yet created any damage to the city and, thus, did not qualify as being within the statute of limitations.  In the alternative, the Wells Fargo motion sought a more definite statement.

In a responsive brief filed by CCL October 26 on behalf of Miami Gardens, CCL argued that the FHA states that the limitations period does not begin to run as long as the impermissible conduct continues. Thus, any improper steering that continues into the limitations period satisfies the statute of limitations and allows prior loans to come within the limitations period for consideration by the court. In addition, the brief points out that the average length of time between a loan closing and foreclosure in these situations is greater than three years. As a result loans within the two-year statute of limitations period are unlikely to move into foreclosure. Besides, the brief points out, it is the misconduct and not the damage that is examined for statute-of-limitations purposes.  The brief was written by CCL’s Valerie Nannery and Robert S. Peck, Joel Liberson of Trial and Appellate Resources, and Lance Hartke and Sara Clasby Engel of Harke Clasby & Bushman.

CCL Asks U.S. Supreme Court to Resolve Circuit Split on Right of Children of Military Mothers to Bring Birth-Injury Claim When Suits of Children of Military Fathers Are Permitted

October 13th, 2015

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.