News

CCL File Petition for Writ of Mandamus in Fourth Circuit

March 26th, 2021

     CCL asked the Fourth Circuit to take supervisory authority over a case challenging the constitutionality of the Virginia cap on medical malpractice damages because the federal trial court has postponed ruling on the cap's validity and insisted on moving forward with a trial in which it cannot award any damages. The petition for a writ of mandamus and prohibition invokes the higher court's authority to confine the lower court to its legitimate jurisdiction.

     In the petition filed March 26, CCL explains that J.S., a minor, filed this declaratory judgment action and medical malpractice case against the defendant to seek compensation for debilitating injuries that were caused by a failure to diagnose the injury following an automobile collision. A joint tortfeasor settled the case against it for $2 million before the current suit was filed. Virginia law limits damages in medical malpractice actions to a total of $2 million, even though, in this case, J.S.'s medical expenses are estimated to be $3.3 million. CCL had argued that because the federal district court cannot award any damages, the liability claims fail the test for standing under Article III of the Constitution, which require the court to be able to provide a remedy, among other things. However, CCL pointed out the court can provide a remedy in the constitutional challenge because it could find the statute unconstitutional and enjoin its operation. Doing so, then, would open the door to trying the underlying malpractice action.

    However, in early March, the district court determined that reaching the constitutional question would constitute an improper advisory opinion because there is no entitlement to additional damages until there is a jury verdict above the $2 million damage cap. It set the case for trial. The petition to the U.S. Court of Appeals for the Fourth Circuit, however, argues that the trial court got it backwards. A trial of a case in which it can award no damages would be the advisory opinion that the Constitution forbids, because Virginia does not authorize medical malpractice cases to be brought when $2 million in damages have already been paid. The CCL petition directs the court to a 2021 U.S. Supreme Court ruling, where the issue was whether nominal damages of $1 were sufficient to find Article III standing and held that it was because even nominal damages provide concrete vindication to a plaintiff. Yet, in J.S.'s case, CCL points out, not even one penny of damages could be awarded, so the parties would be invoking federal judicial resources for a case that cannot vindicate the plaintiff's complaint.

     Under the procedure for petitions for mandamus, the parties must await a decision from the Fourth Circuit that invites the other parties and possibly the lower court to file a brief in opposition. If no such invitation issues, the petition is denied. CCL is cocounsel in the case with the MichieHamlett law firm in Charlottesville, Virginia.

CCL Amicus Brief Provides Important Point in Supreme Court Decision

March 25th, 2021

     The Supreme Court rebuffed efforts by Ford Motor Company to further narrow plaintiffs' options on where they can bring a lawsuit for vehicle defects that result in injury or death in an unanimous decision, relying in part on an amicus brief filed by CCL on behalf of the American Association for Justice (AAJ) and Public Justice. 

     In consolidated cases from Montana and Minnesota, Ford argued that it could not be sued in either state in cases where the vehicle at issue was originally purchased in another state. Instead, it said, plaintiffs were limited to the place of purchase, the place where the car was designed, or the state where Ford has its headquarters, because only those places have a causal link to the alleged defect. The Court, however, rejected that argument, holding that "[w]hen a company like Ford serves a market for a product in a State and that product causes injury in the State to one of its residents, the State's courts may entertain the resulting suit."

    In the AAJ and Public Justice brief, CCL pointed out that Ford encouraged owners of their vehicles to service and maintain the cars with original equipment manufacturer (OEM) parts, whether they bring their cars to dealerships, auto shops, or work on the vehicles themselves. On a Ford owner's website, the company promotes its OEM parts with the slogan, "Keep Your Ford a Ford." Only the CCL-authored brief made this point in the filings before the Supreme Court. Justice Elena Kagan's opinion for the Court adopted the argument, demonstrating that Ford maintained a relationship with the vehicle and with every owner of a Ford through its promotion of those parts and noting the slogan promoted by the company of "Keep Your Ford a Ford." The use of these facts and argument by the Court testifies to the effectiveness of CCL's brief.

     CCL President Robert S. Peck, author of the brief, was quoted by Bloomberg News as saying that the Court's decision was a "step back from the brink" as it arrested a trend of personal jurisdiction decisions dating back to 2011 that increasingly narrowed the eligible jurisdictions for lawsuits against out-of-state companies.

Parties Propose New Scheduling Order in FHA Litigation

March 15th, 2021

     Counsel in two Fair Housing Act cases filed a new joint proposed scheduling order as the case resumes after being in civil suspense. In both cases, the City of Miami Gardens, Florida, sued banks over allegedly discriminatory mortgage lending practices that resulted in loss of property values and diminishing the property taxes the city could collect. The cases were filed in 2014, but were stayed repeatedly while related or similar cases proceeded through the federal appellate courts, including trips to the U.S. Supreme Court in which CCL represented both Miami and Miami Gardens.

     In the current cases, Miami Gardens separately sued Bank of America and JP Morgan Chase. The city filed an amended complaint in January after the case was revived. The proposed scheduling order, filed March 15, outlines the parties agreed and conflicting positions on deadlines and various issues. 

CCL Files Summary Judgment Motion in First Amendment Case

March 15th, 2021

    CCL filed a motion for summary judgment March 15, asking a federal district court to declare a West Virginia statute restricting attorney advertising in medication and medical device cases unconstitutional. Last year, CCL prevailed on a motion for a preliminary injunction in the case, which is issued when there is a substantial likelihood of prevailing overall.

    In its motion, CCL argued that there can be no justification that prevents truthful information from being conveyed to consumers, yet the statute does precisely that. It bans the use of the term "recall" unless ordered by a government agency or through an agreement between a manufacturer and a government agency, even though nearly all recalls of drugs and devices regulated by the Food and Drug Administration are voluntary recalls by the manufacturer, often after a request by the FDA. When the manufacturer refuses to engage in a voluntary recall, the Department of Justice sues to obtain a court order requiring the product be withdrawn from the market. That court order does not qualify as an agency directed recall. 

    In addition, the statute bans the use of "consumer alert" or similar phrases from lawyer advertising, which also includes all forms of solicitation of business, including a law firm's website. It requires all covered advertising advise consumers that the drug or device is still approved by the FDA, even if the FDA has requested a recall or the Justice Department has sued to remove the product from the market. Another provision requires lawyers to advise consumers that they should not stop taking medication without a doctor's advice, a form of medical advice that cannot be required of a commercial speaker talking about legal services.

    The case is called Recht v. Justice and is pending in the U.S. District Court for the Northern District of West Virginia. In the case, CCL is co-counsel with the Segal Law Firm in West Virginia.

Hearing Held in Challenge to Texas Medical Malpractice Damage Cap

March 11th, 2021

     Judge Lee Yeakel of the U.S. District Court for the Western District of Texas held a status conference in a challenge CCL brought with other law firms to the medical malpractice damage cap in Texas on March 11. The telephone conference was intended to iron out procedures for moving forward in the case, Winnett v. Frank. The case was designed as a class action for medical-malpractice plaintiffs who reserved their federal rights separately from their state court liability actions in order to assure that a plaintiff would still have standing as the case proceeds through the appellate process.

    Judge Yeakel expressed a strong preference for finding a way to proceed without making the case a class action. He also indicated opposition to using a placekeeper plaintiffs such as a John or Jane Doe for that purpose, asking counsel to find a different approach acceptable to both sides.

 

CCL's Peck Participates in RAND Institute for Civil Justice Board Meeting

March 11th, 2021

   In a virtual board of advisors meeting, RAND's Institute for Civil Justice presented findings from two projects in its ongoing research. The first focused on the variation in size of federal juries. The project is examining explanations for why district courts choose different jury sizes as a precursor to research that will attempt to establish the optimal size for a jury in civil cases. A second presentation looked at issues in pandemic risk insurance. As a member of the board of advisors and a past president of the group, CCL's Robert S. Peck participated in the meeting.

CCL Helps Write Sur-Reply in Nursing Home Death Case Where Defendant Claims Immunity under PREP Act

March 8th, 2021

     Working with the Levin & Peconti law firm in Chicago, CCL helped write a sur-reply brief that responds to the nursing home defendant's invocation of a interpretation of the PREP Act written in January by the prior administration.

      The Public Readiness and Emergency Preparedness Act, also known as the PREP Act, was enacted by Congress in 2005 and provides immunity from losses for the administration or use of certain countermeasures against diseases, threats, or conditions identified by the government, as long as the user of the countermeasures does not engage in willful misconduct. The measure was designed to free health-care providers from liability when a vaccine or other tool authorized for use in a public health emergency proves ineffective. 

      In Martin v. Peterson Health Operations, pending in the U.S. District Court for the Central District of Illinois, the plaintiff alleges that the nursing home defendant failed to undertake necessary steps to prevent the spread of COVID-19 in its facility and that failure resulted in the death of a resident, whose estate has sued. Peterson Health removed the case from state court to federal court and then asserted that the case should be dismissed under the PREP Act.

      The vast majority of courts in cases like this one, with only one outlier decision, have held that the PREP Act does not apply when there has been no administration or use of a countermeasure. However, the general counsel of the Department of Health and Human Services in the outgoing administration issued an 11th hour interpretation of the PREP Act and asserted that a decision against using countermeasures was covered by the Act's immunity provision as well. Although the defendant asserted that the interpretation had a binding effect, the sur-reply cites decisions that recognize a statutory interpretation by a general counsel of an administrative agency does not have the force and effect of binding law and that the interpretation itself acknowledges that it is not binding. The brief was filed March 8.

CCL Files Amicus Brief Highlighting Serious Constitutional Flaws in Proposed Roundup Settlement

March 5th, 2021

     In a brief filed on behalf of the American Association for Justice (AAJ), CCL pointed out serious constitutional flaws implicating the right to trial by jury and the right of access to the courts in a proposed class settlement of in the Roundup multi-district litigation. The settlement would affect thousands of claimants who used the weed killer Roundup, which is alleged to cause non-Hodgkins lymphoma (NHL). The settlement would put nearly $2 billion up to settle claims, while the defendant, Monsanto, continues to sell the product.

     The settlement proposes allowing claimants who reject individual settlement offers to bring their cases before a jury, but truncates those trials by mandating certain evidence be admitted and limiting remedies. The brief points out that a so-called "advisory" science panel, which would delay cases brought by at least four years, provides inherently problematic evidence before the jury about the connection between Roundup and NHL that adversely affects the jury's role in judging the credibility of witnesses and the weight accorded to evidence. The Science Panel conclusion entered into evidence need not even be accurate to be beyond challenge, while all counter-evidence would be subject to all evidentiary challenges.

     The brief also argues that the proposed settlement would prohibit punitive damages in those jury trials, giving Monsanto a free pass to continue the egregious misconduct that potentially exposes it to those damages absent the settlement.

     A National Law Journal article published the same day as the AAJ amicus brief was filed, features the brief in describing the uproar that the proposed settlement generated within the trial bar.

CCL's Peck Participates in ABA House of Delegates Meeting

February 22nd, 2021

     CCL President Robert S. Peck voted on a variety of resolutions, including ones that addressed disputes over the 2020 presidential election, during the course of the American Bar Association's House of Delegates meeting, which took place virtually. Peck is one of three delegates representing the ABA Trial, Tort, and Insurance Practice Section. 

     One resolution laid out basic principles about the conduct of elections and urged Congress to give "controlling effect" to the popular vote winner in that jurisdiction. A second resolution urged adoption of laws that prohibited the possession or display of firearms by persons other than governmentally authorized military personnel, law enforcement, or security forces around specific areas where legislative debate is taking place or ballots cast.

VW Emissions Opt-Out Plaintiffs File Opening Brief

February 12th, 2021

     Seven sets of plaintiffs who opted out of two classwide settlements and tried their individual cases together filed their opening brief arguing fundamental errors in their cases that resulted in small-damage awards in most of the cases, and no liability in two cases. CCL was part of the legal team that drafted the brief.

     Riley v. Volkswagen of America grows out of a multi-year fraud in which Volkswagen used a "defeat device" to prevent government officials from realizing that the cars the company sold as "green" vehicles, with especially lowered emissions, actually spewed pollutants at 40 times the maximum level set by law. A program in the cars would adjust pollution levels to meet government requirements when a measuring rod was placed inside the tailpipe, giving a false reading of compliance. After the fraud was discovered, Volkswagen was subjected to a variety of criminal and civil penalties, and purchasers of the vehicles sued. Cases filed in federal courts across the country were consolidated for treatment in the U.S. District Court for the Northern District of California. Two class settlements came out of that courts, but a number of disaffected plaintiffs opted out of the settlements, seeking their own day in court on their complaints.

     The Riley plaintiffs were Californians who sought redress under the state's strong consumer protection laws. Under one, the Song-Beverly Act, the state's lemon law, the inability to fix a vehicle to meet the seller's promises results in damages that can be three times the sales price, plus attorney's fees. Judge Charles Breyer, presiding over the case, dismissed claims under the Act on the grounds that the vehicles were still operable, even if they did not meet the environmental standards that were promised and were the motivation for buying these particular cars. 

     In addition, the judge ruled against claims under the Consumer Legal Remedies Act, holding that the settlement offer was a "reasonable accommodation," which forgives potential liability for good-faith mistakes that are immediately corrected. He further held that claims for common-law fraud, which succeeded before the jury, only permitted meager damages for the difference in the vehicles' value with and without proper environmental controls, despite being illegal to sell as a new vehicle at the time of sale. Judge Breyer also reduced punitive damages of $25,000 per case assessed by the jury to a range of $2,328 to $12,532, a 4:1 ratio, even though larger ratio is constitutionally permissible when compensatory damages were small, as here.

    The brief details the errors made by the judge on these issues, as well as other evidentiary and procedural matters. Volkswagen's responsive brief is not expected until July.