News

This week, the Supreme Court denied a petition for writ of certiorari in Teva Pharmaceuticals, USA v. Hassett, the last in a series of petitions by generic drug companies seeking Supreme Court review of lower court decisions permitting plaintiffs to pursue products liability claims against manufacturers of generic metoclopramide, on the grounds that such claims were preempted under Pliva, Inc. v. Mensing. CCL Chief Litigation Counsel Louis Bograd opposed each of these petitions, asserting that the lower courts properly held that plaintiffs’ claims fell into exceptions from Mensing preemption because, under the facts in each case, it would not have been impossible for the generic manufacturer to have provided stronger warnings about the risks of long-term use of metoclopramide to plaintiffs and their prescribing physicians at the time metoclopramide was prescribed to the plaintiffs. Hassett is the fourth and final pending petition for certiorari in such circumstances that the Supreme Court has declined to hear. In each of these cases, plaintiffs may now proceed with their claims before state courts.

CCL President Robert S. Peck participated in deliberations of a task force appointed by the Conference of Chief Justices to examine issues with rules governing civil cases in state courts, when the task force met May 15 in Denver, CO. The task force is examining issues of cost and delay in the system, as well as best practices and rules proposals that will address these problems. It is pursuing a tracking system that assigns cases to simplified, typical and complex tracks, providing judicial resources to each case in line with its complexity.

CCL’s Robert S. Peck represented the plaintiff’s perspective in committee and other meetings during the American Bar Association’s spring meeting of the Tort Trial and Insurance Law Section (TIPS) in Philadelphia. Peck is a member of the TIPS Plaintiffs Policy Task Force, where issues affecting the plaintiffs’ bar were discussed. In addition, he attended various meetings of the governing Council of TIPS, on which he serves, co-chaired the ABA/TIPS Committee meeting, and joined the discussions at the Judicial Division/TIPS meeting.

CCL’s Robert S. Peck represented the plaintiff’s perspective in committee and other meetings during the American Bar Association’s spring meeting of the Tort Trial and Insurance Law Section (TIPS) in Philadelphia. Peck is a member of the TIPS Plaintiffs Policy Task Force, where issues affecting the plaintiffs’ bar were discussed. In addition, he attended various meetings of the governing Council of TIPS, on which he serves, co-chaired the ABA/TIPS Committee meeting, and joined the discussions at the Judicial Division/TIPS meeting.

Representing the American Association for Justice at the Advisory Committee on Civil Rules meeting in Washington, D.C. April 9, CCL Senior Litigation Counsel Valerie M. Nannery observed reports on the progress of last year’s civil rules proposals and plans for new rules governing class actions.

Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit, and chair of the Committee on Rules of Practice and Procedure reported that the Supreme Court of the United States had approved the most recent set of rules proposals emanating from the committee, but requested a couple of changes to the Committee Notes that accompany the pending amendments to the Civil Rules. As is reflected in the Court’s transmittal to Congress, the Committee Notes to Rules 4 and 84 were changed from the last draft submitted for approval to the Judicial Conference.

The new Committee Note to Rule 4 makes clear that the reduction of the time for service from 120 days to 90 days “will increase the frequency of occasions to extend the time.” The original Committee Note stated that “Shortening the presumptive time for service will increase the frequency of occasions to extend the time for good cause.” This change ensures that district courts have the discretion to extend the time for service even when good cause for delay has not been shown.

The Committee Note on the abrogation of Rule 84 now says: “The abrogation of Rule 84 does not alter existing pleading standards or otherwise change the requirements of Civil Rule 8.” This additional language appears to address the concerns of the overwhelming majority of those who commented on the abrogation of Rule 84 and most of the official Forms previously in the Rules.

The Advisory Committee also discussed plans for an unprecedented educational campaign to members of the bench and bar to encourage attorneys and judges to use and apply the amended rules, should they go into effect on December 1, 2015, which will occur unless Congress unexpectedly acts to stop them.

There was some discussion about the potential for “requester pays” discovery rules further down the line, although the Committee members appeared to agree to wait and see how the pending rule amendments change the landscape before further changes are considered. In response to the cost-shifting in discovery discussion, there was a suggestion that the Committee revisit mandatory disclosures under Rule 26(a)(1).

Finally, there was an extended discussion on the Rule 23 Subcommittee’s report and “conceptual sketches,” which can be found in the Agenda Book for the meeting. Many of the “conceptual sketches” are based on portions of ALI’s Principles of the Law of Aggregate Litigation. The members of the Advisory Committee gave a mixed response to several of the “sketches,” while other “sketches” did not garner much of a response. The Rule 23 Subcommittee is currently on a “listening tour,” discussing ideas for amendments to Rule 23 with groups of attorneys, academics and judges. They will be holding a “mini-conference” in Dallas-Fort Worth on September 11^th, by invitation only.

After 10 years as a key attorney at CCL, Senior Litigation Counsel Andre M. Mura has left CCL to become a partner at Gibbs Law Group LLP in Oakland, California.

While at CCL, Andre briefed and argued cases in numerous state supreme courts and federal appellate courts, and he authored briefs filed in the U.S. Supreme Court, at both the petition and merits stages. Andre also handled complex litigation and dispositive motions in state trial and federal district courts. Among his accomplishments, he was the architect of a series of constitutional challenges to laws in Missouri that restricted access to courts. This litigation, most importantly, resulted in a favorable decision by the Missouri Supreme Court in overruling of a 20-year-old precedent that had diminished the constitutional right of jury trial and struck the state’s cap on non-economic damages. Andre was counsel of record in the case, Watts v. Lester E. Cox Medical Centers.  The Missouri Supreme Court subsequently relied on Watts in unanimously striking  a punitive damage cap.

Andre originally came to CCL as an intern, while a student at George Washington University Law School. Upon graduation, he became an associate at CCL, then a counsel, and later a senior litigation counsel. As he departed CCL, he enjoyed one last victory as a member of the firm, defeating a motion for summary judgment on an issue of preemption.

CCL wishes Andre all the best and much success as he takes on new challenges at his new law firm!

CCL President Robert S. Peck presented Civil Justice Today: Is a Hostile Takeover Taking Place? at the American Association for Justice’s 2015 Leaders Forum Retreat in Playa del Carmen, Mexico on April 25. Mr. Peck spoke about the many fronts on which a person’s constitutional right of access to the courts is being attacked. He described his recent testimony before a subcommittee of the House Judiciary Committee, which was pushing forward legislation to create mandatory sanctions for filings that are not supported by sufficient facts or law. In that testimony, he described the “failed experiment” with precisely the same rules, how it resulted in cost and delay through significant satellite litigation and was opposed by the Judicial Conference of the United States. He also described the countless obstacles placed before the courthouse door by state legislation, proposed procedural rules changes, recent U.S. Supreme Court decisions, and arguments being made to the Court. He described CCL’s many efforts challenging legislation, commenting on rules proposals, and opposing certiorari in Supreme Court. In particular, he described CCL’s recent brief in opposition to certiorari on behalf of the plaintiffs in Wal-Mart v. Braun, where the Pennsylvania state courts upheld a $187 million verdict in a wage-and-hour class action on behalf of 187,000 current and former Wal-Mart employees. Wal-Mart asked the Supreme Court to overturn the verdict because the company did not get to cross-examine all members of the class and because some of the damages were the product of extrapolation by experts. The CCL brief explained that Wal-Mart was not prohibited from cross-examining as many employees as it chose and did not take advantage of that opportunity. Moreover, the extrapolated evidence was the product of spoliation. Wal-Mart stopped keeping employee time records after it was first sued in other states. As a result, the jury was entitled to take an adverse inference from the lack of record keeping, which was required by law

In a case argued by CCL’s Andre M. Mura, a federal district court in Florida refused to dismiss a class action complaint seeking damages for deceptive food labeling. The case concerns Wal-Mart’s Great Value “100% Cranberry Pomegranate” juice blend, which contains far less cranberry or pomegranate juice than labeling suggests. Wal-Mart argued that the suit was preempted because its labeling complied with federal law, and it sought dismissal because, it said, plaintiffs lacked standing. The district court here agreed with plaintiffs that their suit is not preempted and that they have standing to sue. The 37-page ruling, issued on April 23, is highly detailed in its analysis of preemption in this context, and is a great precedent for plaintiffs.

Plaintiffs are also represented by Tim Howard of Howard & Associates, PA of Tallahassee, Florida.

Equity and fairness can trump even an emphatic statute of limitations, the Supreme Court held on April 22, 2015, applying the principle to the time limits imposed by the Federal Tort Claims Act. United States v. Wong, No. 13-1074.

The FTCA waives sovereign immunity for harm caused by the negligence of federal employees. However, the claimant must file an administrative claim with the agency involved within two years after the cause of action accrues. Additionally, the claimant must file suit within 6 months after the agency’s denial. Claims that do not comply “shall be forever barred.” The Court’s decision involves both time limits.

In Wong, plaintiff sought damages arising out her detention by the Immigration and Naturalization Service. However, she was not able to timely file suit because the district court did not grant her motion to add the FTCA claim to her existing complaint until after the six-month deadline had passed.

In United States v. June, No. 13-1075, plaintiff’s decedent was killed in an auto accident in 2005 when a driver lost control of her vehicle on an interstate and crossed through the cable median barrier into oncoming traffic. Plaintiff sued the United States in 2009, after discovering that the Federal Highway Administration had falsely reported that the cable median barrier had passed mandatory federal crashworthiness tests.

In both cases, the Ninth Circuit held that the FTCA time limits may be equitably tolled where plaintiff was diligent in pursuing her claim but was prevented from complying by circumstances beyond her control, particularly where the government played a role in creating those circumstances. The Supreme Court granted certiorari to resolve a circuit split on the question.

An AAJ amicus brief, prepared by CCL Senior Counsel Jeffrey R. White, urged the Court to affirm. Neither the text of the FTCA nor the purpose of the statute suggest that Congress intended to preclude the tolling of the time limits where equity requires. In addition, equitable tolling permits courts in cases like Wong and June to avoid depriving of injured claimants of their statutory causes of action in violation of due process and right of access to the courts. 

The Court upheld the Ninth Circuit by a 5-4 margin. Justice Elena Kagan, writing for the Court, rejected the government’s primary argument – that the time requirements were “jurisdictional” and not subject to equitable tolling. Although courts in earlier times used the term “jurisdictional” more loosely, Justice Kagan adhered to the Court’s more recent position that a time bar may be deemed jurisdictional only where Congress has provided a clear statement to that effect. Congress did not intend to exempt the federal government from the general rules that allow equitable tolling. Rather, the FTCA makes the United States liable “in the same manner and to the same extent as a private individual under like circumstances.”

On behalf of the American Association for Justice, CCL’s Andre M. Mura and Jeffrey White filed an amicus curiae brief urging the Massachusetts Supreme Judicial Court to uphold a $63 million award against Johnson & Johnson for serious injuries caused by its over-the-counter drug Children’s Motrin. In a unanimous decision issued on April 17, the Court affirmed the award.

CCL’s brief addressed Johnson & Johnson’s claim that this failure-to-warn suit was preempted by federal law governing over-the-counter drugs. CCL explained that there was no basis for preemption here. To establish preemption, the brief explained, Johnson & Johnson was required to prove that there was “clear evidence” that the FDA would not have approved a change to Children’s Motrin’s label to warn of Stevens-Johnson Syndrome or toxic epidermal necrolysis, which are life-threatening diseases. The Court agreed, finding that Johnson & Johnson could not meet this high burden.

CCL’s brief also addressed whether the federal constitution establishes substantive due process limits on the amount of compensatory damages awarded in this case. CCL explained that this case was not a proper vehicle for considering this question, and that, in any event, any substantive due process limits which apply to punitive damages should not be extended to limit compensatory damages. The Court declined to address this question.