News

CCL Files Reply Brief in Florida Ex Parte Interview Challenge

March 17th, 2015

On Monday, CCL argued that the defendants argued for an implausible construction of the Florida rules of civil procedure, in a specious effort to avoid invalidation of a statute that expands presuit discovery to include ex parte interviews with a medical malpractice plaintiff’s treating physicians, including those who treated the plaintiff two years before the alleged malpractice. In the reply brief filed in Florida’s First District Court of Appeals, CCL President Robert S. Peck argued that the rule’s delineation of three forms of permissible discovery was exclusive under applicable canons of constitutional construction and that the Legislature had no authority to expand the available methods because the state constitution limited that authority to the Supreme Court. Opposing counsel argued that the use of the word “may” in the rule that stated parties may use one or more of the following methods indicated that the rule anticipated legislative expansion. The CCL brief rejoined that the word “may” simply made presuit discovery permissible rather than obligatory.

In addition to responding to other arguments, the CCL brief made a special point about the state constitutional right of privacy. The trial court had found that the plaintiff had neither standing to make a privacy claim nor was entitled to make such a constitutional claim against a private party. The defendants simply parroted that ruling. CCL, however, pointed out that the trial court and defendants had conflated arguments applicable to the invasion of privacy tort, which seeks damages, with the constitutional right in a case that merely seeks a declaration of rights. Moreover, the brief said, the necessary state action occurred when the legislature passed the statute. Because the defendants had indicated their intention to utilize the statute, they were proper parties to a declaratory judgment action to decide the constitutionality of the underlying statute.

With briefing now complete, the case will soon be set for oral argument.

CCL Opposes Summary Affirmance in “Snatch and Remove” Appeal

March 16th, 2015

This week, CCL filed a response in opposition to Wyeth LLC, Wyeth-Ayerst International Inc. & Wyeth Pharmaceuticals Inc.’s Motion for Summary Affirmance in a Third Circuit appeal that involves the important and recurring problem some have called “snatch and remove.” In the case, Wyeth LLC, the only non-forum defendant sued in Pennsylvania state court on state law claims, filed a notice of removal the day after CCL’s clients filed their complaint. At the time the notice of removal was filed, no defendant, including the two properly joined in-state defendants, had been served. Many other judges have remanded such cases to state court, seeing the removal before service as gamesmanship meant to make an end run around the “forum defendant rule” in 28 U.S.C. § 1441(b)(2), which was intended to limit removal of cases in which a defendant is sued in its home state. The district court judge in this case denied the plaintiffs’ motion to remand, adopting a broad, literal interpretation of the “plain language” of a portion of 28 U.S.C. § 1441(b)(2), and holding that removal was proper because the forum defendants were not “properly joined and served” at the time of removal.

Although this case presents an important issue of first impression, the defendants argued that the U.S. Court of Appeals for the Third Circuit need not address the propriety of removal, even though the plaintiffs preserved the issue for appeal, and could not immediately appeal the district court’s decision on their motion to remand. The defendants argued that the court should decline to review this substantial issue, and summarily affirm the merits of the district court’s decision granting summary judgment on the merits of the plaintiffs’ claims to the defendants. CCL’s Valerie M. Nannery and Jeffrey R. White filed a response in opposition today arguing that the court of appeals has an obligation to address the legal issues that were preserved for appeal, and that failure to do so will leave the lower courts in disarray, with no guidance from the court of appeals. CCL maintained that summary affirmance is inappropriate in this case because the issues on appeal raise substantial questions on which there is no binding authority from the Supreme Court or the Third Circuit.

CCL Files Opening Brief in Fen-Phen Appeal

March 16th, 2015

On March 10th, CCL attorneys filed their opening brief in an appeal presenting an important issue of first impression, whether an out-of-state defendant can remove a case from state to federal court before the in-state defendants are served. The case originated because the plaintiff developed the deadly disease pulmonary arterial hypertension (PAH) after taking the diet drug Fen-Phen. Plaintiffs sued the manufacturers of Fen-Phen, two of which are Pennsylvania corporations, in Pennsylvania state court on state law claims. The next day, before plaintiffs had the opportunity to serve any of the defendants, the only out-of-state defendant removed the case to federal court. Under Pennsylvania rules of civil procedure, immediate service on a Pennsylvania citizen is not feasible, but service must be made within 30 days of filing. Plaintiffs served the two forum defendants and asked the district court to remand because removal was premature and improper because of the presence of two properly joined forum defendants. The district court denied the plaintiffs’ motion to remand, and would not certify its order for interlocutory appeal.

The case remained in federal court and the defendants filed a joint motion to exclude plaintiffs’ expert evidence that her use of Fen-Phen caused her illness under Federal Rule of Evidence 702 and for summary judgment. The district court held that none of plaintiffs’ expert testimony was admissible because it fell short of Pennsylvania’s requirement that experts opine “to a reasonable degree of medical certainty.” Without admissible evidence as to causation, the court ruled, defendants were entitled to summary judgment.

In the brief filed on Tuesday, CCL’s Valerie M. Nannery and Jeffrey R. White asked the U.S. Court of Appeals for the Third Circuit to reverse the district court’s holding that removal of the case from state court was proper, and to vacate the district court’s determination on the merits because removal was premature and improper under 28 U.S.C. § 1441(b)(2), otherwise known as “the forum defendant rule.” This provision limits the cases that can be removed on the basis of diversity jurisdiction when “any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” When a defendant is a citizen of the forum state, there is no local prejudice to the defendant from litigating in state court.  

Because there were forum defendants who were properly joined in the case, CCL argued, removal before service on any party was both premature and improper under the express terms of the removal statute and its purpose. CCL urged the court to reject a reading of the statute that would provide defendants a way to subvert the forum defendant rule by monitoring state court dockets and immediately filing a notice of removal, thus depriving plaintiffs of their proper choice of forum, and filling federal district courts with cases that belong in the state courts where they were filed.

In the alternative, CCL argued that the district court was wrong in granting summary judgment to the defendants because there was admissible evidence that Fen-Phen caused the plaintiff’s PAH. Hired experts and treating physicians alike each concluded, unequivocally, that the plaintiff’s PAH was caused by her use of the diet drug. On appeal, CCL argued that the district court failed to evaluate each expert’s testimony in its entirety, as required by Pennsylvania law. 

CCL Opposes Amicus Brief Before Supreme Court for Flouting Rules

March 3rd, 2015

CCL, on behalf of respondent Theresa Huck, recently opposed the filing of an amicus brief in support of a petition for certiorari in Pliva, Inc. v. Huck. The amicus brief was submitted on behalf of the Generic Pharmaceutical Association (GPhA) by the law firm of Ulmer & Berne. Although CCL normally, as a matter of professional courtesy, does not object to reasonable requests to appear as amicus curiae, CCL opposed this request because the law firm that filed the amicus brief also represents the petitioner, Pliva, Inc., in this and related cases. CCL therefore believes that the submission of this amicus brief violates Supreme Court rule 37.6, which requires amici to certify whether counsel for a party authored the amicus brief in whole or in part. GPhA asserted in its proposed brief that “no counsel for a party in this Court wrote this brief in whole or in part.” The “in this Court” language departed from the usual Rule 37.6 language. CCL contends that this representation was false, given Ulmer & Berne’s representation of the petitioner, and therefore opposed submission of the amicus brief in support of the petition.

CCL Files Brief in Opposition to Certiorari in Generic Drug Case

March 3rd, 2015

On February 23rd, CCL filed a brief in the U.S. Supreme Court to oppose to the petition for a writ of certiorari in Pliva, Inc. v. Huck, No. 14-544, on behalf of the plaintiffs. The case involves a failure-to-warn claim against the manufacturer of generic metoclopramide based on its failure to provide a warning against longterm use of the drug that had already been approved by the FDA. The Iowa Supreme Court recognized that such a claim escaped federal preemption under the reasoning of Fulgenzi v. Pliva, Inc., 711 F.3d 578 (6th Cir. 2013), another case that CCL handled. The failure to provide the updated warning that the name-brand manufacturer utilizes takes the case outside the scope of Pliva, Inc. v. Mensing, 131 S.Ct. 2567 (2011), where the Supreme Court ruled it impossible for the generic manufacturer to update warnings on its own. Pliva petitioned for Supreme Court review, contending that plaintiff’s claim was impliedly preempted under Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341 (2001), as an attempt at private enforcement of the FDCA. The brief was written by CCL Chief Counsel Lou Bograd on behalf of Theresa Huck and argued that that question Pliva put forth was not actually presented in this case, that the question actually decided by the Iowa Supreme Court had already been answered by the U.S. Supreme Court, that the FDA had rejected Pliva’s interpretation of federal regulatory requirements, and that the issue—which largely affects a single company—would largely be mooted by a new labeling regulation proposed by the FDA.

CCL Urges Supreme Court to Review Punitive Damages in Admiralty

March 3rd, 2015

On January 29, CCL filed an amicus curiae brief on behalf of the American Association for Justice supporting a Petition for Certiorari in McBride v. Estis Well Service, S. Ct. Docket No. 14-761. The case arises out of an accident aboard a barge supporting a truck-mounted drilling rig. The rig toppled over, killing one of the crew and injuring several others. The decedent’s representative and two injured workers alleged that Estis, their employer and owner of the barge, willfully ignored warnings concerning the dangerous condition of the rig. The central issue for the Supreme Court is whether seamen may recover punitive damages for willful and wanton breach of the general maritime law duty to provide a seaworthy vessel.

A federal magistrate judge dismissed the McBride claim for punitive damages, based on prior Fifth Circuit precedent. A panel of the U.S. Court of Appeals for the Fifth Circuit reversed, holding that the prior precedent had been overruled by Townsend v Atlantic Sounding (2009), a Supreme Court decision written by Justice Thomas, which upheld recovery of punitive damages under general maritime law for willful failure to provide an injured seaman with maintenance and cure.  However, on rehearing en banc, the entire Fifth Circuit reversed the panel decision by a 9-6 vote. The circuit court extended the Supreme Court’s decision in Miles v Apex Marine Corp. (1990), which held that non-pecuniary damages, such as loss of society, were not recoverable in a Jones Act suit, to bar recovery of punitive damages. There is a split in authority among the federal circuits on this issue.

The AAJ amicus brief, authored by CCL  Senior Counsel Jeffrey White, urged the Court should to grant McBride’s cert petition. The Court has historically safeguarded the rights of seamen as “wards of the admiralty.” In addition, the case is controlled by Townsend, which held that Congress intended the continued availability of existing remedies, such as punitive damages, rather than Miles, which declined to make new remedies available under general maritime law. Finally, CCL suggested that the federal courts draw upon the reasoning and experience of state common law courts in recognizing the availability of punitive damages in products liability suits which, like unseaworthiness actions, are grounded in strict liability. 

CCL Opposes Proposal to Shorten Appellate Briefs

February 11th, 2015

CCL opposed proposed amendments to the Federal Rules of Appellate Procedure that would reduce the length of appellate briefs by 1,500 words in comments filed February 11.  The proposal would change the conversion rate from 280 words per page to 250. Contrary to assertions made by proponents, lowering the limit will not result in better briefing. The more likely consequence would be an increase in motions to exceed the limit, resulting in more work for both counsel and the courts. CCL also pointed out that the lower word limit would disproportionately impact amicus curiae briefs, which must include a statement of interest and other elements that go against the word count.

CCL’s comments supported proposals to covert page limits into word limits and to add provision for amicus briefs during an appellate court’s consideration of petitions for rehearing or rehearing en banc. CCL suggested that the proposed deadline for such briefs should be extended from 3 days to one week after the party has filed the petition for rehearing. In addition, CCL argued that the proposed limit of 2,000 words is unrealistic. CCL also suggested that the amendment to Rule 29 be broadened to make provision for amicus briefs at a subsequent consideration of the merits.

Finally, CCL did not oppose amending Rule 4(a)(4)(a) to clarify that post-judgment motions made outside of the time limits of the Civil Rules are not “timely,” and thus cannot toll the time for filing a civil appeal.

CCL’s comments were prepared by Senior Litigation Counsel Jeffrey R. White.

CCL Files Opening Brief in Federal Breach of Contract Appeal

January 28th, 2015

In a complex appeal, CCL attorneys filed their opening brief, asking the U.S. Court of Appeals for the Seventh Circuit to restore a jury’s verdict from the first trial after a second trial resulted in a diametrically opposed result. The dispute revolves around competing breach of contract claims between a federal contractor and the equipment supplier for a major construction project in Illinois on bids from the Army Corps of Engineers. CCL’s client, Slurry Systems, Inc., had won the bid to build slurry walls for the Chicago Underflow Plan at McCook Reservoir. To dig the foundations for the walls, Slurry Systems rented a 40-foot tall trench cutter from Bauer, a German company that manufactures the cutters and certified that the work could be completed within nine months using its equipment. Constant problems with the trench cutter and repeated failures by Bauer to effect repairs dragged the cutter rental out for 26 months. A Bauer subsidiary, Pileco, Inc., sued Slurry Systems in federal court for unpaid rent, while Slurry Systems counterclaimed for breaches of Bauer’s obligations under the contract and its warranty of merchantability of the equipment.

The first trial resulted in a $2 million dollar award to Pileco, which was offset by an award of $25 million to Slurry Systems on its claims, including $20 million in punitive damages. On his own motion, the magistrate judge presiding over the case refused to enter judgment on the verdict and ordered a new trial, asserting that the verdict was against the weight of the evidence because Slurry Systems deserved a higher award for the time and costs of when the trench cutter was out of service. In the second trial, however, a new jury again found for Pileco on its claims, but against Slurry Systems on its claims. Pileco asked for, but was denied, attorney fees and costs. Both sides appealed.

In the brief filed today, CCL’s Robert S. Peck and Kathryn Minton, representing Slurry Systems, asked the Seventh Circuit to order the District Court to revert to the first verdict, less the punitive damages, because the judge misapplied the law by ordering a new trial. The jury awarded punitive damages on a count for which it did not find any compensatory damages. Under the applicable Illinois law, the punitive damages had to be disallowed and did not provide a reason to retry the case. In addition, the brief argued that the judge has an obligation to reconcile the jury verdict or suggest a remittitur before the option of a new trial can be pursued, which requires a miscarriage of justice as a justification. No such egregious action occurred here, the brief argued. Even if the judge could order a new trial, the new trial was tainted by Pileco’s attempt to try a different case with a new legal theory, whic the rules governing retrials prohibit. Moreover, Peck and Minton argued that the new judgment was more egregiously against the weight of the evidence. The brief suggested the alternative remedy would be for judgment in Slurry System’s favor as a matter of law or a third trial.

CCL Argues Against Preemption In Putative Consumer Class Action In Federal District Court

January 21st, 2015

On January 15, CCL’s Andre M. Mura argued in federal district court in Florida on behalf of consumers who purchased multiple-juice products sold by Wal-Mart. In this suit, filed as a class action, consumers argue that Wal-Mart’s juice labeling is false and misleading in violation of Florida law, because the products are being advertised as 100% Cranberry Pomegranate when in reality they consist primarily of white grape juice and apple juice. Wal-Mart moved to dismiss the suit, arguing that federal law immunizes it from all liability under state law even if its labels mislead, and even if its labeling does not comply with federal law. The district court held a hearing on the motion, which lasted nearly two hours. Appearing alongside co-counsel Tim Howard and Ankur Mehta of Howard and Associates, P.A, Andre M. Mura explained why this consumer suit is actionable, that federal law does not preempt the field, and urged the district court to deny Wal-Mart’s motion. A ruling is expected shortly.

Peck Speaks at California Conference on Underfunding of the Courts January 13, 2015

January 15th, 2015

CCL President Robert S. Peck called the chronic underfunding of state courts throughout the United States a profound constitutional issue and economically shortsighted at a one-day conference held by the RAND Institute for Civil Justice (ICJ) in Santa Monica, California January 12. The conference attracted legal and court leaders from throughout the country, exploring better ways to assure adequate funding for the courts.

An opening panel at the conference, "Discount Justice: State Court Budgeting in an Era of Fiscal Austerity," included Minnesota Chief Justice Lorie Gildea, Los Angeles Presiding Judge Carolyn Kuhl, and National Center for State Courts President Mary McQueen focusing on the depth of the problem and the various ways that courts have attempted to address it. Funding cuts have devastated the California courts, worse than other states, resulting in closed courthouses and courtrooms, employee layoffs and furloughs, trial delays, and an undermining of court modernization programs.

Peck spoke as part of a panel on constitutional issues raised by the cuts, with New York Chief Judge Jonathan Lippman and California lawyer Donna Melby. The panel agreed that a legal challenge was a last resort, but that precedent supported the courts. Peck described some of the past lawsuits over court funding, noting that the early 1970s were a high-water mark for challenges to underfunding. He noted that litigants, the bar, as well as judges, had standing to bring such actions, which were often premised on due process, separation of powers, and the courts' own inherent powers.

During a luncheon conversation, California Chief Justice Tani Cantil-Sakauye talked about the hardships effected by the cuts, the efficiencies that California has instituted to limit their impact, and the plans for the future when new economic hard-times are likely to hit.

Afternoon panels focused on the available and relevant research, as well as court services that may need to be abandoned or curtailed. Former ABA President Bill Robinson delivered a stem-winding keynote speech that reminded the audience that without funding, there is no law and no justice.

Peck, who serves as chair of the board of overseers for the co-sponsor ICJ, gave closing remarks that emphasized the continuing challenges ahead and the need to engage the broader public. The conference was also cosponsored by UCLA law school.