CCL’s Peck Speaks at National Association of Appellate Court Attorneys Conference in Savannah

July 9th, 2014

CCL President Robert S. Peck addressed members of the National Association of Appellate Court Attorneys (NAACA) at their annual conference, held this year in Savannah, Georgia, on July 9, about issues of access to the courts.  NAACA is a nine-year-old organization that consists of attorneys employed by state and federal appellate courts across the country.  Peck was a speaker as well at NAACA’s 2012 conference on the topic of the constitutionality of tort reform, held that year in Washington, D.C.  In his remarks, Peck reviewed precedent, constitutional issues, and statutory provisions that impel courts to take specific steps to assure that parties can participate meaningfully in their cases, as well as recent U.S. Department of Justice directives implementing Title VI of the Civil Rights Act. One area of concern that NAACA members sought counsel on was obligations toward parties that do not have fluency in English, a growing concern when recent census statistics indicate that 25 million people in the United States do not speak English in their homes and are not proficient in English.

Peck Featured at Florida Justice Association Convention

June 16th, 2014

The Florida Justice Association featured CCL President Robert S. Peck as a speaker at its 2014 Convention in West Palm Beach, Florida.  Coming fresh after his victory in the state supreme court in Estate of McCall v. United States, 134 So.3d 894 (Fla. 2014), which invalidated the Florida cap on non-economic damages in medical malpractice cases involving wrongful death, Peck addressed the case and its meaning at two seminar sessions held on June 11 and 13.  In his remarks, Peck described five myths that defense counsel will propagate to minimize the reach of the decision and why each were inaccurate.

In addition, on June 12, Peck introduced Linda Lipsen, CEO of the American Association for Justice, at the FJA membership meeting that preceded the group's election of new officers. Lipsen talked about the many ways that AAJ supplements the work of the FJA in protecting clients' rights and the civil justice system more generally.

The McCall case is just the latest case that CCL has litigated to help Florida lawyers overcome obstacles that harm better their clients' cases.  Previously, CCL represented the FJA before the Florida Supreme Court after Floridians approved a state constitutional amendment that would have limited contingency fees in medical-malpractice cases, in order to discourage lawyers from taking complex cases. Before the Court was the question whether the limitation was subject to informed and voluntary waiver.  Peck argued that as an individual constitutional right the limit should be subject to waiver.  The Court adopted the argument and ordered the Florida Bar to produce a standard waiver form. In Re: Amendment to the Rules Regulating the Florida Bar - Rule 4-1.5(f)(4)(B), 939 So.2d 1032 (Fla. 2006).

In Bradley v. Sebelius, 621 F.3d 1330 (11th Cir. 2010), CCL represented a Florida family whose entire judgment arising from the negligent death of their father in a nursing home was claimed by Medicare for expenses it had advanced for medical care.  The family had settled the case for available policy limits, which constituted a tiny percentage of the damages they could have claimed.  After the Department of Health and Human Services refused to lower their reimbursement claim or participate in an apportionment in a Florida probate court, counsel for the family started a declaratory judgment in action in federal district court, which ruled in favor of  the federal department.  CCL took the case up on appeal to the 11th Circuit, where it argued that the Department's statutory interpretation lacked the force of law because it had not been subject to review and comment and had placed the family in a Catch-22 situation. The 11th Circuit adopted CCL's argument in full, also characterizing the situation as a Catch-22, and reduced the Department's share of a $50,000 settlement to $455 less attorney fees.

In FCAN v. Bush, 830 So.2d 148 (Fla. 1st DCA 2002), CCL, along with Florida lawyers, challenged a 1999 omnibus tort reform statute, resulting in a circuit court victory, which was reversed on appeal on standing grounds, using a rationale that has now been repudiated.  In Wexler v. Lapore, 385 F.3d 1336 (11th Cir. 2004), and Wexler v. Anderson, 452 F.3d 1226, CCL challenged voting administration that used the excuse of different systems within a single election districts to avoid recounts in extraordinarily close elections.  The lawsuit resulted in a legislative change to the law, adopting the relief sought by the lawsuit.

In addition, CCL has two pending challenges to a Florida statute that authorized ex parte interviews, presuit, with a putative medical-malpractice plaintiff's treating physicians. In 2013, CCL won a decision in the U.S. District Court for the Northern District of Florida, finding the statute preempted by federal law in Murphy v. Dulay, 975 F. Supp.2d 1200 (N.D. Fla. 2013). That decision is currently on appeal to the 11th Circuit, with oral argument scheduled for the third week of August.  A second case in state court in Pensacola adds additional claims, asserting that the law also violates provisions of the Florida Constitution. That case, Weaver v. Meyers, 2013 CA 001714 (Fla. 1st Jud. Cir.), is currently under advisement in a Florida trial court.

Currently, CCL has filed an amicus brief on behalf of AAJ in the Florida Supreme Court in the pending case of Westphal v. City of St. Petersburg, Nos. SC13-1930 & SC13-1976, which raises the question of whether an injured worker who has exhausted his limit on temporary total disability is eligible for permanent total disability benefits.

Peck Serves as Moderator at AAJ Class Action Seminar

June 4th, 2014

CCL’s Robert S. Peck served as the moderator for an all-day seminar on Consumer Warranty Class Actions, sponsored by the American Association for Justice at its headquarters June 4.  The seminar covered operation of the Magnuson-Moss Act, challenges to class actions, special issues arising at the certification stage, lessons from the Whirlpool moldy washer litigation, and approaches to settlement.

In his opening remarks to set the stage for the day, Peck talked about how class actions were under the most severe attack since their inception. He noted that these challenges occur through legislative actions, court decisions, press accounts, and rulemaking changes. While the seminar was not designed to address paths through all those thickets, it covered a number of successful strategies in consumer class actions.

CCL has handled a number of appeals in class action and related cases. Currently, CCL’s Lou Bograd is set to argue a case before the Ninth Circuit, en banc, on whether coordination under California’s rules of civil procedure constitute a “mass action” for removal under the federal Class Action Fairness Act. A panel of the Ninth Circuit held that coordination is not the equivalent of attempting to try a case jointly and thus does not qualify for removal.  Bograd’s argument will seek an affirmance of that decision. 

CCL President Speaks at AAJ Leaders Forum Retreat

May 19th, 2014

CCL President Robert S. Peck spoke about recent decisions, rules proposals, and legislation that attempts to reverse the traditional idea that a plaintiff is master of the complaint at the American Association for Justice’s 2014 Leaders Forum Retreat in La Jolla, California on May 18.  Under the master of the complaint rule, a plaintiff may choose the claims and venue in which a dispute is litigated, subject to limited exceptions.  However, according to Peck, control over that process is rapidly diminishing and the obstacles to a person’s day in court, which was the promise of the 1938 adoption of the Federal Rules of Procedure, are growing. Specifically, Peck addressed issues of jurisdiction, removal to federal court, the plausibility requirement coming out of the Supreme Court’s Iqbal and Twombly decisions, the modern use of summary judgment, the battle over class actions, discovery, and renewed efforts to change state rules of procedure.  Peck said that trial lawyers need to be aware of the trends, fight back to guarantee clients a day in court, and begin to develop their own proposals to assure effective justice, not just efficient disposition of cases.

Peck Talks about Constitutions and Damage Caps in California

March 20th, 2014

CCL President Robert S. Peck spoke to researchers at the RAND Institute for Civil Justice March 19 in Santa Monica, California, about the constitutionality of damage cap statutes and why they should almost never pass constitutional muster. He began his talk by describing the decision by the Florida Supreme Court last week that struck that state's cap on wrongful death damages in medical malpractice cases.  Peck had served as counsel in the case, Estate of McCall v. United States, and had argued it before the Florida Supreme Court. The Court held that the cap, which imposed both a per claim limit and an overall incident limit, violated due process because claimants' damages were reduced arbitrarily on the basis of the number of claimants injured.

Peck also discussed other constitutional bases for challenging damage caps, including the right to trial by jury, open court provisions, and separation of powers, using other CCL cases, such as Watts v. Lester E. Watts Med. Ctrs. (Mo. 2012) and Lebron v. Gottlieb Mem. Hosp. (Ill. 2010), as exemplars of the other approaches.

CCL’s Peck Leads Chief Justices’ Discussion of Judicial Disqualification

January 30th, 2014

At the Midyear Meeting of the Conference of Chief Justices in Sea Island, Georgia, CCL’s Robert S. Peck led a January 29 discussion of issues concerning judicial disqualification among chief justices from the various states. Part of the conversation concerned the language of a resolution, considered by the chief justices the following morning.  At their January 30 business meeting, the Conference unanimously approved a resolution that urged “members to establish procedures that incorporate a transparent, timely, and independent review for determining a party’s motion for judicial disqualification/recusal.”  States have a variety of constitutional provisions, statutes, and court-promulgated rules that govern disqualification and recusal in the courts. Many existing rules do not cover the state’s highest courts, which often deal with the issue only by custom. The resolution may cause judiciaries in some states to review their existing approaches and consider more formal procedures.

CCL President Reviews Supreme Court Decisions, Civil Rules Proposals at Hawaii Seminar

December 6th, 2013

CCL President Robert S. Peck reviewed recent U.S. Supreme Court decisions affecting plaintiff's trial practice, as well as proposed changes to the Federal Rules of Civil Procedure at the annual Hawaii Seminar conducted by the Consumer Attorneys of California in Maui.

Peck discussed issues dealing with jurisdiction over foreign defendants, arbitration, class actions, and pleadings, noting that the Court had made each more difficult for plaintiffs. Still, Peck said that careful attention to the triggers for the Court's holdings will enable plaintiffs to overcome many of the Court's recent rulings.

Peck also highlighted the importance of filing comments on the federal rules committees proposed changes to civil procedure, particularly those governing discovery.  He noted that, even though the rules were intended to cover procedure in the federal courts, the same rules inevitably come to govern state court procedures as well.

CCL Attorneys Peck, Mura Lead Sessions at National Center for State Courts Meeting

November 22nd, 2013

At its fall meeting in Washington, D.C., the National Center for State Courts (NCSC) held several sessions led by CCL attorneys. CCL President Robert S. Peck moderated a session November 21, entitled, "A conversation with Chief Justices," in which lawyers and corporate council had an opportunity to raise questions about issues facing the judicial system with more than 20 state Supreme Court chief justices.  Peck also co-chaired a November 22 meeting of the NCSC Lawyers Committee, which discussed a forthcoming task force effort to look at improving the civil justice system and other NCSC projects. CCL Senior Litigation Counsel Andre Mura also co-chaired a meeting that day of the NCSC Young Lawyers Committee, which discussed a civic education project using NCSC-produced graphic novels about the justice system, as well as presented on that project to the Lawyers Committee.

The NCSC is the think tank of the state courts and staffs the Conference of Chief Justices, the Conference of State Court Administrators, and other associations of judicial leaders.

Peck Opens Judicial Education Symposium

November 18th, 2013

CCL President Robert S. Peck spoke on emerging trends in civil justice at the Eighth Annual Judicial Symposium on Civil Justice Issues at George Mason University School of Law, the fourth time he served as the opening speaker at this judicial education program.  The audience of judges and webcast viewers heard Peck discuss recent rulings by the U.S. Supreme Court on a variety of civil justice issues.  Unlike its blockbuster ruling in Wal-Mart v. Dukes in 2011, Peck said that last term’s class action rulings addressed small, technical matters that could be overcome by workarounds that were not difficult to achieve.  The Court also declined several cases, including one handled by CCL this term, to resolve longstanding issues about the correct test to use for a state to exercise jurisdiction over foreign manufacturers.  However, he pointed out that another case this term, DaimlerChrysler v. Bauman, has some potential to indicate when a domestic corporation is subject to a state’s jurisdiction when only its wholly owned subsidiary is present in the state.  Peck said that that issue would only be reached if the Court were to decide the case broadly, as the issue actually presented in the case was whether the German automobile manufacturer could be subject to jurisdiction in California through its wholly owned U.S. subsidiary for actions taken by its wholly owned Argentinian subsidiary.  Because of the complicated fact pattern in this human rights case, Peck said it is entirely possible that the domestic issue would be left untouched.  The two-day symposium drew attendance from trial and appellate judges from state and federal courts across the country.

CCL President Debates Proposed Changes to Civil Procedure Rule on Frivolous Claims on Capitol Hill

October 22nd, 2013

At a session of the Congressional Civil Justice Caucus Academy held in the Rayburn House Office Building on October 21, CCL President Robert S. Peck argued against a return to the 1983 version of the federal civil procedural rule that sanctions lawyers who file frivolous claims or defenses.  Representing the American Bar Association, which opposes the legislation at issue, Peck explained that "we have seen this movie before" and found it a disaster.

 From 1983 to 1993, Federal Rule of Civil Procedure 11 required judges issue mandatory sanctions against lawyers who filed so-called frivolous claims or defenses.  Experience made supporters of the stringent rule back off their support.  As Peck explained, judges applied inconsistent and unpredictable sanctions, including against lawyers who argued for positions subsequently adopted by the U.S. Supreme Court.  Perhaps even more importantly, the 1983 version of Rule 11 was used for unintended purposes.  Motions made pursuant to Rule 11 were not offered against frivolous actions, which were easily defeated on the merits, but as a tactical ploy against meritorious actions to make them more expensive to pursue. 

The Judicial Conference of the United States, the governing body of the federal courts, amended that version of Rule 11 because it resulted in significant collateral litigation, making cases more expensive, wasteful, and dilatory.  It was used against civil rights plaintiffs more frequently than against any other party.  Moreover, congressional imposition of an amended Rule 11, which would lack demonstrated need, is inconsistent with the Rules Enabling Act, the legislation regarded as a treaty between the legislative and judicial branches, that sets forth a considered procedure for changing the federal rules that utilizes input from the public, review within the judicial branch, and an opportunity for congressional veto.ssss

 Supporting the rule change through legislation against Peck was Shooky Hardy law partner Victor Schwartz, general counsel of the American Tort Reform Association, and Bradford Berenson, Vice President and General Counsel of General Electric.