News

In Home Star Bank & Financial Services v. Murphy, a salaried emergency room doctor who responded to a Code Blue in the hospital, asserted that he was immune from suit for medical malpractice under Illinois’s Good Samaritan Act. The trial court granted him immunity, but the appellate court reversed, holding that the doctor was not immune under the Act because he received a salary for his services, and thus did not provide emergency care “without fee,” as the Act requires. The Illinois Supreme Court granted the doctor’s motion for leave to appeal, in which he argues that the Act should apply to this case because the patient was not billed for the doctor’s services.

CCL filed an amicus curiae brief for the American Association for Justice (AAJ) in this case. The brief, written by CCL’s Valerie M. Nannery, and filed in support of the plaintiffs, provides the court a national perspective on Good Samaritan immunity laws and the purpose of the laws. The purpose of the Good Samaritan immunity is to encourage volunteer physicians to provide emergency care even when they have no duty to act. Illinois is an outlier in the United States because the courts do not inquire into whether the doctor who provided emergency care had a duty to do so before they determine whether the Good Samaritan Act applies. AAJ’s brief expresses the concern that granting immunity to a doctor who had a duty to act merely because he does not bill the patient for the emergency care would set a precedent that would spread to other jurisdictions with statutes similar to Illinois’s. The brief encourages the Illinois Supreme Court to hold that doctors who have a duty to provide emergency care cannot be shielded from liability by the Good Samaritan Act, and that doctors cannot escape liability for negligent emergency care by simply not billing the patient.

The federal judiciary last week proposed fundamentally altering the rules that have governed discovery and evidence preservation in litigation since 1938, radically constraining the ability to ferret out corporate and governmental wrongdoing in litigation. CCL has monitored and attended the meetings and conferences where judicial committees have discussed these issues.

At last week's meeting, the Judicial Conference's Committee on Practice and Procedure (the standing committee) approved for public comment proposed amendments to the federal rules of civil procedure that would constrain the scope of discovery and limit the duties of corporations to preserve evidence.

“The rulemakers themselves describe these changes as radical," said CCL attorney John Vail, who attended the meeting. “Despite acknowledging that in the vast majority of cases discovery is working well, they propose changes that are tailored to a small fraction of cases without regard to the burdens placed on average people."

The rules would:

• Limit the scope of discovery, eliminating language that made clear that a plaintiff had a right to get information that could lead to evidence admissible at trial even if the information itself were not admissible;
• Require a plaintiff to prove that requested information is “proportional” to the needs of a case;
• Reduce the number of depositions and written requests for discovery that a plaintiff presumptively is entitled to employ;
• Emphasize the ability of courts to impose on plaintiffs the costs of responding to information requests; and, 
• Limit the duties of corporations to preserve evidence.

The new rules focus on litigation between large corporate entities as if those cases are typical of federal litigation. "In a very real way,” Vail continued, “these proposals say that there are entities too big to be sued.”  Experience shows that what is adopted at the federal level often filters down to the states and become embedded in state rules of civil procedure.

The proposals are expected to be published August 15^th for public comment. the committees would then accept written comments through February 15, 2014.  One public hearing on the proposal has been scheduled for November 7^th in Washington.  Two additional hearings are expected to be announced.

CCL’s Robert Peck chaired two days of American Bar Association hearings on asbestos litigation June 5 and 6 in Washington, D.C. The Task Force on Asbestos Litigation and Bankruptcy, chaired by Peck, heard from academic witnesses, economists, proponents and opponents of legislative changes, and attorneys from both sides of the litigation.  Asbestos litigation is considered the longest-running mass tort in history.  Originally considered a “miracle material” because of its durability and flame-retardant qualities, inhalation of asbestos fibers causes serious illnesses and death after a long latency period.  The five-member task force is charged with examining issues in the litigation and the relationship between claims made against bankruptcy trusts and tort claims made against solvent defendants.  The task force plans to hold a second set of hearings in Los Angeles in October.

CCL filed an amicus curiae brief on behalf of AAJ today urging the U.S. Supreme Court to review a Virginia Supreme Court decision denying recovery under the Longshore and Harborworkers Compensation Act. Minton v. Exxon Mobil Corp., Docket No. 12-1319. 

Minton, a shipyard repair supervisor, was stricken by mesothelioma caused by exposure to asbestos dust on Exxon oil tankers. The Virginia court overturned the jury's verdict, holding that the vessel owner has no duty under LHWCA to protect a worker from danger if the employer had the knowledge and ability to do so. The AAJ amicus brief, authored by CCL Senior Counsel Jeffrey White, argued that controlling Supreme Court precedent requires the owner to intervene where it knows of the danger aboard its vessel and knows that the employer is taking no precautions to protect its own workers. 

In its May 2013 issue, Trial Magazine has published an article written by CCL’s Andre M. Mura entitled “Damages Caps and Inviolate Rights.” The article looks closely at state Supreme Court decisions considering whether damages caps violate the “inviolate” right of trial by jury, including recent decisions by the Missouri and Kansas Supreme Courts, which reached opposite conclusions.

CCL President Robert S. Peck presided at the initial meeting of an American Bar Association task force on asbestos litigation and bankruptcy trusts in New Orleans Mar. 27.  The meeting, which took place at Tulane Law School, set up plans for two hearings the task force will hold looking at issues involving the adequacy of compensation for asbestos victims and the interaction of claims made administratively against bankruptcy trusts set up by some defendants to pay injured people and continued litigation against other defendants in the tort system.  The task force scheduled the first hearing for Washington, D.C. on June 5-6.  A fall hearing in Los Angeles will also be held.  Peck chairs the five-member task force. It is expected to issue a report after its hearings.

CCL President Robert S. Peck presided in place of current board chair and Jones Day partner Paul M. Pohl at the biannual meeting of the Board of Overseers of the RAND Institute for Civil Justice in Santa Monica, CA May 21-22.  At the meeting, the Board heard presentations on factors affecting automobile insurance, judicial disqualification, the impact of disability benefits on work performance, the use of criminal prosecutions to affect corporate behavior, and issues in compensating gun injuries.  The Board also discussed possible future projects and had a dinner presentation from former California Governor Gray Davis.  Peck is vice chair of the board and succeeds Pohl for a two-year term as chair in the fall.

On February 11 at the American Bar Association Midyear Meeting in Dallas, Texas, CCL President Robert Peck helped the ABA adopt policies to bring sensible reforms to the Medicare reimbursement process, address jurors' access to social media, and adopt amendments to the Rules of Professional Responsibility.

Representing the Tort Trial and Insurance Practice Section in the House of Delegates, the ABA's policymaking body, Peck helped write the report supporting Medicare reform.  In December, Congress approved the SMART Act, legislation that streamlined the process when Medicare claims a right to reimbursement for medical expenses paid before a beneficiary receives compensation from a tortfeasor.  The new law, supported by all stakeholders in the process, enables a beneficiary to receive timely information about any obligations to Medicare and proceed to settlement or trial without the guesswork or delays that the process has long entailed.  The new ABA policy is in line with the SMART Act and allows the organization to comment on regulations that will be promulgated to implement the new law.

The new jury guidelines provide advice on the conduct of trials where social media could bias the proceedings.  The amended ethical rules were the product of a multi-year effort to study changes in the legal profession and the growing globalization of legal issues.

When should a judge step down from a case due to the appearance of a conflict of interest?  That question animates the work of two American Bar Association ethics committees, who have struggled to develop new judicial conduct rules that implement the Supreme Court’s 2009 decision in Caperton v. A.T. Massey Coal Co., where the court ruled that due process required a West Virginia supreme court justice to have stepped down from a case in which one party had spent $3 million in support of the justice’s election.  Crafting an appropriate rule, however, has proven difficult.  An article in the January 2013 ABA JOURNAL quotes CCL President Robert S. Peck about the difficulty in making sure the rule captures potential bias in favor of an election supporter or opponent without putting the onus on the judges to discover what is being spent and by whom, especially when state law often prohibits a judge from knowing that information.  Peck’s position was supported by the ABA’s Judicial Division.  

The Pennsylvania Supreme Court on November 21, 2012 significantly expanded the scope of liability of nursing homes and other health care entities. Scampone v. Highland Park Care Cente, 2012 WL 5894904 (Pa. 2012), arose out of the death of a 94-year-old nursing home resident due to dehydration, malnutrition and neglect. Plaintiff alleged that the nursing home and its management company provided inadequate staffing and training. The jury awarded $193,500, and the appellate court affirmed, holding that the nursing home was sufficiently similar to a hospital to be subject to liability for hospital corporate negligence under Pennsylvania precedent.

The state Supreme Court affirmed on a somewhat broader ground. The proper inquiry was whether defendants had undertaken a duty to provide services to decedent and whether they did so negligently. The Court also rejected any special tort immunity “for the nursing home industry based upon appellants’ predictions of financial doom.” The court remanded to the trial court for a finding on these issues and a new trial.

AAJ filed a brief as amicus curiae, authored by CCL counsel Jeffrey White.