News

CCL’s Robert S. Peck participated in the biannual meeting of the Board of Directors of Justice at Stake, a nonpartisan national partnership of more than 50 organizations, working to keep courts fair and impartial through public education, litigation and reform. The April 16-17 board meeting took place in Washington, DC, where the board talked about the anticipated U.S. Supreme Court ruling in Williams-Yulee v. Florida State Bar (where the Supreme Court later held that a restriction on direct solicitation of campaign funds by judicial candidates did not violate the candidates’ First Amendment rights) and the battle between the Kansas Governor and the state supreme court over judicial authority. Peck serves as board secretary and chairs JAS’s amicus curiae committee.

U.S. District Court Judge James D. Peterson denied CCL’s motion for a temporary restraining order on behalf of Wisconsin Chief Justice Shirley Abrahamson as unnecessary because the results of the April 7, 2015 vote on a state constitutional amendment changing the selection process for chief justice will not be certified until April 29, so that no one could act on it before then. The ruling, he wrote, was not a decision on the merits. He also set a April 21^st status conference to finalize a briefing schedule and promised to resolve the issue quickly.

The lawsuit, filed the day after the election, has attracted coverage in the New York Times, the Milwaukee Wisconsin Journal Sentinel, Dom's Domain, Green Bay Press Gazette and a Wall Street Journal editorial.

CCL’s Robert S. Peck and Kathryn Minton represent Chief Justice Abrahamson and five voters who supported her reelection in 2009 for a term that ends in 2019.

Representing Chief Justice Shirley Abrahamson and five voters, CCL filed a federal lawsuit Wednesday seeking a declaration that the constitutional amendment approved by voters April 7, which changed the method by which the chief justice was selected, cannot be implemented until a naturally occurring vacancy occurs in that post. Abrahamson, a member of the court since 1976, has served as chief justice since 1996. Prior to Tuesday’s vote, the Wisconsin Constitution conferred the office of chief justice on the most senior continuously serving justice.  In 2009, Abrahamson was elected to another 10-year term, which ends on July 31, 2019.

The newly approved constitutional amendment changes the seniority rule to an election of the justices for a two-year term. The court’s majority is generally regarded as conservative, while Abrahamson is known as a liberal. News reports have speculated that the upshot of the amendment is that Abrahamson would be replaced with a member of the conservative wing of the court.

The complaint and memorandum, seeking immediate injunctive relief, argues that a constitutional amendment must explicitly and unmistakably indicate that it is to have retroactive effect; otherwise, the amendment must be construed as prospective in nature. Any other approach, the lawsuit contends, would violate the due process and equal protection rights of Abrahamson in her position, as well as the dilute and debase the voters who supported her in the 2009 election.

The lawsuit names the six other Wisconsin Supreme Court justices as defendants, as well as certain state officials responsible for administration and payroll. Wisconsin Attorney General Brad Schimel was served with the complaint as well, as his office has authority to defend the action. The plaintiffs in this action are represented by CCL’s Robert S. Peck and Kathryn Minton.

The Center for Constitutional Litigation today filed a brief in the United States Supreme Court in opposition to the petition for a writ of certiorari filed by Teva Pharmaceuticals USA and Pliva, Inc. in Teva Pharmaceuticals USA, Inc. and Pliva, Inc. v. Hassett, the third cert petition to arise out of the mass tort litigation in Philadelphia on behalf of persons injured by generic metoclopramide, In re Reglan/Metoclopramide Litigation.

In Pliva, Inc. v. Mensing, the Supreme Court ruled that federal food and drug law preempts state tort claims against generic drug manufacturers where federal law prohibits a drug company from complying with its duties under state law. Despite this clear holding, generic drug companies have argued that Mensing is a “get out of jail free” card for all state tort claims against them, even claims involving state law duties that do not conflict with federal requirements. Numerous courts, including the Pennsylvania Superior Court here, have rejected these arguments. Generic drug companies have now sought Supreme Court review of these rulings on four separate occasions. CCL has consistently opposed these efforts on behalf of persons injured by dangerous generic drugs. In the brief filed today in opposition to the petition for certiorari in Hassett, CCL Chief Litigation Counsel Louis Bograd argues, inter alia, that the Supreme Court lacks jurisdiction to review an interlocutory decision by the Pennsylvania state courts; that there is no split of appellate authority warranting the Supreme Court’s intervention; that the FDA has expressly rejected Teva and Pliva’s arguments and that the agency’s position is entitled to deference; and that, for numerous reasons, the Hassett case would be a poor vehicle for Supreme Court consideration of the questions presented. Bograd was assisted on the brief by CCL’s Jeffrey White. The Supreme Court will decide whether to grant the petition and hear this case near the end of May.

In a hearing on a motion to dismiss for failure to comply perfectly with presuit requirements in medical malpractice cases, CCL President Robert Peck told a Florida trial judge that, if the gist of the defendants arguments was that the plaintiff did not utilize the statutorily mandated form, constitution flaws in the form excused the oversight. 

The issue arises in a tragic case of a woman dying from brain cancer as a result of a late diagnosis. Though the defendants engaged in extensive presuit discovery, eventually received all records they sought before suit was filed, and could not show they were prejudiced in any way, they nonetheless asked the judge to use a technicality to oust the plaintiff from court. Florida lawyer Sean Dominic, counsel for the plaintiff, argued that repeated Florida precedent rejected the defendants' stance. He brought CCL's Peck into the case to emphasize the constitutional basis for those precedents. Peck told the court that the form required the plaintiff to sign releases inconsistent and irreconcilable with Florida Rule of Civil Procedure 1.650, thereby violating the Florida Constitution's exclusive assignment of primacy over court processes to the Florida Supreme Court. The form also violated Florida's strong right of privacy and its guarantee of access to the courts, Peck said.

The case, heard in Osceola County, Florida, was taken under advisement.

In a case involving a woman’s brain cancer that became incurable allegedly because of a delayed diagnosis, Berger v. Garner, filed in a Florida Circuit Court, CCL argues that dismissal should be denied because the defendant health care providers’ argument that the refusal to use a form that permits ex parte interviews imposed an unconstitutional condition on commencement of the lawsuit.  The case, set for a hearing next week, involves a 2013 Florida statute that requires medical-malpractice plaintiffs to file a notice of intent to sue at least 90 days before a lawsuit can be filed and include an authorization for the likely defendants, their lawyers, their experts, and their insurance adjusters to interview the plaintiff’s treating physicians without plaintiff’s counsel present. When no such authorization was filed 90 days before suit was brought, the Defendants moved to dismiss, even though they admitted they have never used the authorization to engage in such ex parte interviews.

CCL’s brief for the plaintiff, written by President Robert S. Peck and associate Kathryn Minton, argues that the requirement conflicts with Florida Rule of Civil Procedure 1.650 and is therefore null and void as a legislative invasion of the Florida Supreme Court’s exclusive authority to promulgate rules of court. In addition, the requirement, which requires revelation of private health information not at issue in the case, violates Florida’s strong constitutional right to privacy. The brief further argues that the authorization for ex parte interviews violate the Florida Constitution’s guarantee of access to the courts by not being justified by overpowering public necessity and implemented in the least restrictive fashion. Finally, the brief argues that the ex parte provision constitutes a special law that provides an evidentiary privilege only to medical-malpractice defendants and burden to those claimants, when the issue of personal injuries to which treating physicians have evidence is common to a wide variety of plaintiffs.

A hearing on the motion to dismiss is scheduled for April 7 in Kissimmee, Florida.

CCL President Robert S. Peck told CBS News that the California Attorney General’s had only “ministerial” responsibility for giving a title and summary for qualifying initiative petitions, meaning that she could not exercise discretion. Appearing on the CBS Morning News on March 31, CBS News correspondent Ben Tracy about the options available to Attorney General Kamala Harris, who has sought judicial permission to avoid proceeding with an initiative that would criminalize homosexual sex and punish it with death, specifying that the sentence be carried out by “bullets to the head or by any other convenient method.” The blatantly unconstitutional proposed amendment to the California Constitution, which Peck also called “insensible,” has no chance of passing, but garnered headlines because of its extreme proposal and the ease with which the California initiative process is commenced. To make it to the ballot, a petition must gather nearly 400,000 signatures after receiving a title and summary from the Attorney General.

Peck explained that California’s Attorney General may have a way to avoid any further involvement with the amendment. California law requires a proponent to pay a filing fee of $200, plus provide certain information, including public contact information. To date, all news reports indicate that no news organization has successfully contacted the Californian who proposed the initiative. If his public contact information is inadequate or wrong, Peck said, the petitioner has not complied with the prerequisites for filing so that no title or summary would need to be issued by the state.

On Monday, March 23, the Supreme Court denied generic drug company Morton Grove Pharmaceuticals' petition for certiorari in Morton Grove v. Adams, an appeal arising out of the In re Reglan/metoclopramide Cases, mass tort proceedings in Philadelphia. CCL Chief Litigation Counsel Louis Bograd represented Plaintiff-Respondent Adams before the Court. Reuters covered the denial here. 

The Pennsylvania Superior Court had ruled that Adams' product liability claims against Morton Grove for injuries caused by long-term use of its metoclopramide syrup were not preempted, because Morton Grove, as the manufacturer of the Reference Listed Drug for metoclopramide syrup, could have strengthened the warnings on its product without prior FDA approval. Morton Grove contended that that ruling was in error because, as a generic drug company, claims against it were preempted under the Supreme Court decision in Pliva Inc. v. Mensing. This was incorrect, Bograd explained, because the test for preemption under Mensing is impossibility, whether federal law prohibited the company from doing what state law required. It was not impossible for Morton Grove to strengthen its warnings because, as the RLD, it could not violate the duty to match RLD labeling, which was the basis for the preemption ruling in Mensing. 

The case will now return to the Pennsylvania state courts for further proceedings.

Have employers hijacked federal protections for seafarers enacted by Congress by using mandatory arbitration clauses in their employment contracts for those who work aboard U.S. based vessels? On March 23, 2015, CCL filed an amicus curiae brief on behalf of the American Association for Justice asking the Supreme Court to halt this erosion of federal statutory rights by accepting Pysarenko v. Carnival Corp., Docket No.14-12378, for review.

Vitalii Pysarenko, a citizen of Ukraine (now a permanent resident of the U.S.), was employed by Carnival Cruise Lines, headquartered in Miami. He was injured while moving heavy equipment aboard the Carnival Dream in Port Canaveral, Fla. Pysarenko brought suit under the Jones Act and the Seamen’s Wage Act. Carnival moved to compel arbitration, alleging that the manadory arbitration provision in Pysarenko’s employment contract was enforceable under Chapter 2 of the Federal Arbitration Act, which implements the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, including those between U.S citizens and citizens of foreign countries. The district court granted Carnival’s motion to compel arbitration in Monaco while applying Panamanian law as provided in the employment contract. The Eleventh Circuit affirmed.

AAJ’s amicus brief supporting Pysarenko’s Petition for Certiorari, prepared by CCL Senior Counsel Jeffrey R. White, emphasized the Court’s historic role in protecting the rights of seafarers, long deemed “wards of the admiralty.” That role remains essential with respect to the cruise industry, which makes use of “flags of convenience” to evade safety regulations. AAJ also pointed out to the Court that the enforcement of mandatory arbitration agreements under Chapter 2 of the FAA also extends to U.S. citizen seamen who hire onto foreign vessels and to U.S. seamen working aboard U.S. vessels, where the employment contract has some connection with a foreign nation.

Enforcement of the arbitration provision under Chapter 2 of the FAA raises three important issues that should be resolved by the Supreme Court. First, enforcement violates § 1 of the FAA, which states that “nothing herein contained shall apply to contracts of employment of seamen.”  Second, enforcement violates the Federal Employers Liability Act, 45 U.S.C. § 55, which is incorporated into the Jones Act and states that any contract “the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void.” Third, enforcement violates the Court’s precedents stating that federal statutory rights may be the subject of arbitration only where the party may vindicate his federal rights in the arbitral forum. In this case, because the laws of Panama offer no rights to seafarers comparable to the Jones Act and Seamen’s Wage Act, the mandatory arbitration provision operates as a prohibited prospective waiver of federal statutory rights.

Arguing that the so-called Lawsuit Abuse Reduction Act would have prevented Brown v. Board of Education from going forward, CCL President Robert S. Peck told a House Judiciary subcommittee that the bill would “expose Americans to more harmful products and misconduct by diminishing the opportunity to hold those responsible accountable,” “add to the cost of litigation, not lower it,” while raising profound separation of powers issues by virtue of its attempt to amend a rule of civil procedure directly, rather than through the Rules Enabling Act, which makes the judiciary primarily responsible for the promulgation of procedural rules.

The bill, H.R. 758, attempts to roll back the present version of Rule 11, adopted in 1993, to reinstate the language it had in 1983, when sanctions were mandatory, rather than discretionary. Even the strongest judicial advocates of mandatory sanctions, receded from that support based on experience that showed that Rule 11 motions were brought primarily for tactical reasons that only multiplied proceedings, caused waste and delay, and increased tensions between parties, making the job of judges harder, Peck told the Subcommittee on the Constitution and Civil Justice.  The bill is also opposed by the Judicial Conference of the United States, the governing body of the federal courts, as well as the American Bar Association.  A 2005 poll of judges, conducted by the Federal Judicial Center, found 87 percent favored the current rule, while only five percent wanted a return to the 1983 version.

Peck’s reference to Brown v. Board of Education was supported by a 1988 article by U.S. District Court Judge Robert Carter, a member of the legal team in Brown, who believed that the case would not have gotten past a Rule 11 motion under the 1983 rule. Noting that judges have ample authority to sanction baseless filings, Peck said that judicial discretion is necessary because different violations warrant different remedies. Peck concluded his remarks by quoting University of Pennsylvania Professor Stephen Burbank, who described the decade-long experience under the 1983 rule as an “irresponsible experiment with court access,” and urged Congress to reject the bill for the reason that the Judicial Conference had interred the 1983 rule.