News

     The Ohio Supreme Court struck a cap on noneconomic damages as unconstitutional when applied to permanent psychological injuries resulting from a sexual assault in a case argued by CCL President Robert S. Peck in March. Today's decision, by a 4-3 vote, found that the Ohio legislature acted irrationally by exempting permanent physical injuries from the cap but not permanent psychological injuries. 

      The case arose as a result of 34 sexual assaults, including eight instances of rape, on the plaintiff when she was 11 and 12 years old, after her friend's father had drugged her on repeated occasions during sleepovers. The father is now serving a life sentence in prison. 

      A jury awarded the plaintiff $20 million in damages subject to the legislative cap, which caused the trial court to reduce the verdict to $250,000. The Court of Appeals upheld the reduction, but with the new decision, the orginal verdict was restored because the majority found that the cap applied in this context violated the state constitution's due process guarantee. 

     The opinion can be found at Brandt v. Pompa.

    A trial court in Missouri denied a stay while BNSF Railway's petition to compel arbitration is pending in federal court. Last month, CCL President Robert S. Peck argued that the stay should be denied for multiple reasons, including that the arbitration clause was unconstitutional, that the arbitration agreement did not apply to many of the plaintiffs in this train derailment case, and that arbitration had been waived by BNSF's participation in the state court litigation. 

     The court's ruling came after extensive additional briefing. 

     In a petition for certiorari, CCL urged the Supreme Court to review the en banc decision of the Fifth Circuit, denying personal jurisdiction over a Japanese multi glomerate whose container ship struck the U.S.S. Fitzgerald in the Sea of Japan, killing seven U.S. Navy sailors and injuring more than 40 others. The Fifth Circuit's decision, which drew a strong 5-judge dissent, essentially rendered Rule 4(k)(2) of the Federal Rules of Civil Procedure unconstitutional, while unending centuries of admiralty law.

     The sailors and their families brought suit in federal court in New Orleans, alleging that the container ship's negligence was responsible for the deaths and injuries. They sought jurisdiction under Rule 4(k)(2), which provides long-arm jurisdiction over foreign companies for federal causes of action when no state court of general jurisdiction can hear the case and when the foreign company has sufficient contacts with the United States as a whole. However, the federal district court applying a Fifth Circuit precedent that merely assumed that Rule 4(k)(2) was a form of general jurisdiction, held that despite extensive U.S. contacts the Japanese company still had to be incorporated or headquartered in the U.S. to satisfy due process under the Fifth Amendment.

     A three-judge panel of the Fifth Circuit affirmed because of the in-circuit precedent, but urged their colleagues to reconsider the precedent en banc. This was the result that CCL President Robert S. Peck urged upon the panel in oral argument, if the earlier decision could not be distinguished. A 17-judge court then reheard the case, with Peck arguing again, but ruled 12-5 to affirm the dismissal of the matter. 

      Today's petition urged the Supreme Court to take up the case and reverse. Lawyers for the defendant will file a brief opposing that position.

     With the denial of a petition for certiorari, the Supreme Court today ended Recht v. Morissey, CCL's challenge to a West Virginia lawyer advertising statute that, among other things, banned the truthful use of the word "recall" in solicitations for clients in drug and medical device cases. 

      CCL had won a federal district court decision, striking down the statute in a summary judgment motion. The U.S. Court of Appeals for the Fourth Circuit reversed, deferring to the legislative judgment that the use of the word was "inherently misleading" even when entirely accurate. That left only a petition to the Supreme Court as a way to obtain a more thoughtful decision that respected precedent. Unfortunately, the Court declined to hear the issue at this time, marking the end of the road for that particular case. Other challenges will undoubtedly be mounted.

     The full Judiciary Committee of the U.S. House of Representatives heard testimony from four witnesses in its investigation of whether the Supreme Court needs a set of ethics rules, including from CCL client Rev. Robert Schenck. The hearing took its name from Rev. Schenck's earlier activities, now disavowed, and revealed in a New York Times story. It was called, "Undue Influence: Operation Higher Court and Politicking at SCOTUS."

      The Supreme Court is not subject to the same ethical rules as other federal judges, though it has said that it consults the rules applicable to other federal judges. A New York Times story about how Rev. Schenck and his former organization's supporters ingratiated themselves to some of the justices through large donations to the Supreme Court Historical Society and how they received advanced word of the result and authorship of the Hobby Lobby case triggered the December 8 hearing. CCL's Peck accompanied Rev. Schenck to the hearing to provide legal advice during questioning from the committee members.

       In addition to Rev. Schenck, who provided a factual account of his prior organization's activities, the Committee heard testimony from:

• Caroline Fredrickson, a visiting professor at Georgetown Law School and a member of the Presidential Commission on the Supreme Court of the United States, who spoke about the need for ethics rules and the ways it could be accomplished;
• Mark R. Paoletta, a partner at Schaerr Jaffe LLP, who made a partisan attack on the hearing and on Democratic appointees to the Court; and,
• Donald K. Sherman, Senior Vice President and Chief Counsel for Citizens for Responsibility and Ethics in Washington (CREW), who spoke about the need for ethical rules regardless of party of appointment or ideology. 

      In his latest posting on the Appellate Advocacy Blog, CCL President Robert S. Peck suggests "Two Overlooked Tips for Writing Briefs and Arguing Cases". 

      The first focuses on maintaining credibility. Too often, an advocate pushes the boundaries of a argument, overstating a proposition or the holding of a case, and reaches a breaking point that ultimately hurts the advocate's credibility on another issue or argument that a more supportable basis than the court might realize. Having undermined credibility on the earlier point, the advocate loses an opportunity to bring the court along on a more novel but viable assertion.

      A second tip reminds appellate counsel that judges are generalists and may not have background on the issue brought before them. Assuming that some seemingly basic aspects of the law on a particular issue are well known may do a disservice to the case. The advocate who practices in that area may find the point somewhat second-nature, but to someone outside that field a short description of the applicable legal principle can illuminate the more complex point.

     After BNSF Railway petitioned a federal court in St. Louis to stay state court proceedings and order mandatory arbitration of claims arising from a train derailment, CCL filed a motion to dismiss for lack of subject-matter jurisdiction. The case, previously reported in this blog on November 3, involves deaths and injuries from a train's crash with a dump truck near Mendon, Missouri.

     BNSF contends that it is premature to determine the validity of the Amtrak arbitration agreement that it relies upon, even though that is the first step a court must undertake in response to either BNSF's motion to stay proceedings or the plaintiffs' motion to dismiss. CCL's reply brief in support of dismissal makes that point and suggests that BNSF's refusal to defend the basis of its arbitration agreement waives it and warrants immediate dismissal of the federal case so that the state case may proceed.

     The Georgia Law Review has published Democratic Renewal and the Civil Jury,. an article that argues that reviving the use of civil juries can contribute to a renewal of aspects of our democracy that have fallen into disrepair. The article was written by Professor Richard L. Jolly of Southwestern Law School, Professor Valerie P. Hans of Cornell Law School, and CCL President Robert S. Peck.

     The article recognizes that civil jury trials have become rare events, especially after the COVID-19 pandemic affected in-person courtroom events. Yet, jury trials remain a constitutionally guaranteed right, one that the Framers of the Constitution regarded as essential. Yet, from the beginning, trusting laypeople to determine the facts of a dispute was the subject of derision by elites. Their critique, however, is misplaced. Juries do a remarkably good job of sifting through the evidence and determining the facts. For that reason, providing an educational outlet for participation in the democratic aspects of the judicial system can help to renew commitment to democracy and its ideals, the article contends.

     The article also offers six steps that should be taken to revive jury trials:

1.  Remove obstacles to jury trials, such as the requirement that a jury trial be requested at the outset, rather than default to a judge-tried case;

2.  Remove damage caps, which revise the jury's verdict to legislatively;

3.  Expand procedural innovations, such as expedited trials;

4.  Ensure representative juries; 

5.  Return to 12-member juries; and,

6.  Adopt active jury reforms, such as providing instructions at the outset and permitting jury questions.

     Arguing that the case provides an excellent vehicle for the Supreme Court to determine whether States may redefine a word, already defined by federal law, and then ban its use altogether, CCL filed a reply brief in support of its petition for a writ of certiorari.

     In Recht v. Morrisey, CCL is challenging a West Virginia statute that, among other things, bans the word "recall" in certain attorney advertising when used accurately to refer a drug or medical device recalled by the manufacturer. Federal law defines a recall as a voluntary action by a manufacturer when it determines that the product is not sufficiently safe to continue to be sold. However, the West Virginia law only permits the truthful use of the word when the government orders a recall, which it does not do in the case of drugs and medical devices.

     A federal district court in West Virginia struck the law as unconstitutional, but the decision was overturned by the U.S. Court of Appeals for the Fourth Circuit, which held that the word was inherently misleading. The CCL petition seeks review of that decision in the U.S. Supreme Court. The reply filed today explains why West Virginia's opposition to further review lacks merit.

     In Holsapple v. BNSF, CCL filed a supplemental brief asserting that BNSF Railway waived any right it had to mandatory arbitration of cases brought as a result of a train derailment near Mendon, Missouri.

     In a post on the CCL blog on November 3, CCL provided background on the case and the court's request for supplemental briefing on whether arbitration was waived. In the brief filed today, CCL argued that a party seeking arbitration must tell the court at the earliest feasible moment, under relevant precedent, and cannot otherwise participate in the case without waiving arbitration. In this case, BNSF opposed adding Amtrak as a third-party defendant, supported a stay pending an investigation by the National Transportation Safety Board, and filed for a change of venue to another court. Those actions forfeited any arbitration rights BNSF might have had because it expended time and resources in the trial court without alerting the court to the arbitration issue. It is therefore inconsistent with any claimed right to arbitration.

      The court is expected to rule on BNSF's motion to stay proceedings pending arbitration shortly.