News

CCL President Speaks at NYU Law Conference on Judicial Disqualification

November 14th, 2014

CCL President Robert S. Peck talked about the need for stronger public disclosure requirements as part of the remedy needed to assure fair and impartial courts in the aftermath of heightened judicial election spending during a one-day symposium at New York University School of Law November 14. The symposium, “Courts, Campaigns, and Corruption: Judicial Recusal Five Years After Caperton,” explored the aftermath of the U.S. Supreme Court’s 2009 decision in Caperton v. A.T. Massey Coal Co., where the Court ruled that due process required the recusal of a justice of the West Virginia Supreme Judicial Court because a party in a pending case spent $3 million to oust a justice of that court in favor of a challenger he believed would be more favorable to his interests. The decision endorsed the idea that state judicial ethics rules could go further in disqualifying judges from sitting on cases where their impartiality could be questioned as a result of a debt of gratitude based on financial support of their election.

The symposium’s first panel recounted the story of the Caperton case, where coal company owner Don Blankenship spent millions in independent expenditures in support of now-Justice Brent Benjamin’s campaign for a seat on the West Virginia court and who then provided the deciding vote overturning a $50 million verdict against Blankenship’s company. Moderated by New York Times Supreme Court reporter Adam Liptak, the panel found that the dissenting justices’ concern about a flood of recusal motions have not come to pass.

The second panel, featuring CCL’s Peck, looked at the struggle to define rules that go further than due process requires. Peck emphasized that recusal was a remedy, but an imperfect and less than optimal one and that the objective still is an impartial tribunal. Peck advocated that better disqualification rules be accompanied by improved disclosure of campaign spending sources, including those that go into independent expenditures, issue advocacy and voter education efforts in judicial elections. He pointed out that someone with Blankenship’s intentions today would likely contribute to a number of innocuous sounding committees that would seek to perform the same function of changing the membership of a court in a way that launders the money given and makes it more difficult to trace back to its source. He described some of the issues now pending in Illinois, where accusations are pending in court about indirect efforts to replace a justice and affect the outcome of several cases.

Subsequent panels explored judges’ views and sources of bias. Participants included New York Chief Judge Jonathan Lippman, Ohio Chief Justice Maureen O’Connor, former Alabama Chief Justice Sue Bell Cobb, and former Wisconsin Justice Louis Butler.

Peck was invited to participate as the author of an amicus brief on behalf of the American Association for Justice in Caperton and as the leader in a successful effort in the American Bar Association’s House of Delegates to resolve that courts must adopt transparent and timely procedures for permitting recusal and providing for independent review of any decision not to step down from a case. The resolution had the endorsement of the Conference of Chief Justices. The symposium was co-sponsored by NYU’s Journal of Legislation and Public Policy, the Brennan Center for Justice, and the ABA Center for Professional Responsibility.

FTCA Deadlines Should Be Equitably Tolled, Supreme Court Told

November 12th, 2014

On November 12, 2014, CCL filed an amicus curiae brief for AAJ in a pair of Federal Tort Claims Act cases in the Supreme Court of the United States. AAJ’s brief, prepared by CCL Senior Counsel Jeffrey R. White, urges the Court to hold that federal courts may suspend the statutory time limits where equity requires.

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 has accrued. Additionally, the claimant must file suit within 6 months after the agency’s denial. Claims that do not comply with these deadlines “shall be forever barred.”

 In United States v. Wong, No. 13-1074, plaintiff sought damages arising out her detention by the Immigration and Naturalization Service. While awaiting denial of her administrative claim by the INS, plaintiff filed a motion for leave to amend her existing complaint to add an FTCA claim. However, the district court did not grant her motion 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 were subject to equitable tolling in appropriate cases where plaintiff was diligent in pursuing her claim but was prevented from complying with the limitations by circumstances beyond her control, particularly where the government played a role in creating those circumstances.

AAJ argued to the Supreme Court that the Ninth Circuit’s holding comports with the text of the FTCA, which provides that the federal government “shall be liable in the same manner and to the same extent as a private individual under like circumstances.” Courts have historically exercised their equitable power to toll statutes of limitations in appropriate cases. Equitable tolling also comports with Congress’s purpose of providing redress to those injured by federal government employees. 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. 

CCL Wins Preemption Case Before Intermediate Appellate Court in New Jersey

November 12th, 2014

The Appellate Division of the New Jersey Superior Court handed down its decision today in an interlocutory appeal from a ruling denying generic drug manufacturers’ motions to dismiss certain failure to warn claims in the consolidated Reglan/metoclopramide mass tort litigation in that state. In In re: Reglan Litigation, an appeal argued by CCL Chief Litigation Counsel Louis Bograd, the appellate court unanimously affirmed trial court rulings that failure to warn claims based upon the generic defendants’ failure to timely update their product labeling to reflect new warnings approved by the FDA for the brand Reglan label are not preempted by federal law governing generic drugs, distinguishing Pliva, Inc. v. Mensing, 131 S.Ct. 2567 (2011).

The Court found persuasive and adopted the reasoning of the U.S. Court of Appeals for the Sixth Circuit in Fulgenzi v. Pliva, Inc., 711 F.3d 578 (6th Cir. 2013), another appeal handled by CCL.  In Mensing, the Supreme Court found failure to warn lawsuits preempted by a 5-4 vote, because it determined that it was impossible for the generic manufacturers to make label changes without FDA approval, a disability that is not true of brand-name manufacturers. However, in Fulgenzi and the new New Jersey decision, the situation was quite different. Generic manufacturers are not prohibited from making changes that have already been approved by the FDA and, in fact, are required to mimic the labeling used by the name-brand product. Thus, the New Jersey court held that “plaintiffs' claims based on the Generic Defendants' failure to update their warnings to conform to changes made to the brand-name warnings are not preempted by federal law.”

CCL’s Nannery Attends The Future of Class Action Litigation at NYU School of Law

November 10th, 2014

On November 8th, CCL Senior Litigation Counsel Valerie M. Nannery participated The Future of Class Action Litigation: A View From The Consumer Class, a conference sponsored by the Center on Civil Justice at NYU School of Law. The day-long conference hosted law professors, judges, and practitioners from both the defense and plaintiffs’ bar to discuss the current state of the consumer class action, ideas for changes to the class action device, and the future of class actions. After panels that included current and former members of the Advisory Committee on Civil Rules, and several academics who study issues related to class actions, Chief Judge of the United States Court of Appeals for the Ninth Circuit, Alex Kozinski, gave the Keynote—a conversation with Professor Arthur Miller about the current state and future of consumer class actions. While several panelists provided some new research into specific aspects of class actions, and specifically about class action settlements, it was repeatedly noted that there is currently a dearth of empirical data and research available about the current state of class actions. The conference organizers and participants called for study of class actions and class action settlements.

Further description of the conference and videos of the panel discussions can be found here.

Peck Attends San Francisco Board Meeting of Justice at Stake

November 7th, 2014

CCL President, Robert S. Peck, attended the November 7 Board of Directors meeting of Justice at Stake (JAS), a coalition of organizations that advocate for fair and impartial courts and whose honorary chair is U.S. Supreme Court Justice Sandra Day O’Connor (ret.). The Board meeting took place in San Francisco and was preceded by a evening reception, featuring remarks by California Chief Justice Tani Cantil-Sakauye, who spoke on the need for support of independent courts. Peck, who serves as board secretary for JAS, participated in discussions that set a short- and long-term plan for the work of the organization. 

CCL Files Opening Brief in Florida Appellate Court Challenge to Statute Authorizing Ex Parte Interviews of Plaintiff’s Treating Physicians

October 29th, 2014

CCL President Robert S. Peck filed his opening brief in the First District Court of Appeals in Florida in Weaver v. Myers, a case challenging the constitutionality of a state statute that went into effect last year and requires medical-malpractice plaintiffs to authorize, during the presuit period in which they have to notify defendants of an intent to sue, unlimited ex parte interviews of their treating physicians. The doctors subject to interview include those who treated the plaintiff up to two years before the alleged malpractice, and the interviews may be conducted, without notice under certain circumstances, by the defendant, defendant’s insurers, defendant’s experts, and any of their attorneys. The trial judge found no constitutional problem with the requirement.

In arguing that the Court strike the law down, Peck stated that the law conflicts with a Rule 1.650 of the Florida rules of civil procedure, which was promulgated by the Florida Supreme Court to limit presuit discovery under the relevant statute. The Florida Constitution gives the Supreme Court exclusive authority to promulgate rules of procedure, and precedent holds that any statute that conflicts with an existing rule of civil procedure is null and void. The trial court ignored this categorical requirement by recasting the ex parte interview as “pretrial investigation,” rather than discovery even though the statute itself termed it discovery.

The brief also argued that the new ex parte provision violates the state constitutional right of privacy, the prohibition against special laws, and the guarantee of access to the courts.  The defendant and the State of Florida will now have an opportunity to file answering briefs.

ABA-TIPS Appellate Quarterly Features Cover Story by CCL’s Nannery on Proposed Amendments to Appellate Rules

October 28th, 2014

The Summer 2014 issue of The Appellate Quarterly, the newsletter of the Appellate Advocacy Committee of ABA-TIPS, published today, features a lead article written by CCL’s Valerie M. Nannery regarding draft amendments to the Federal Rules of Appellate Procedure that were published for public comment in August. The article, which can be downloaded or viewed here, describes the proposed changes to Appellate Rules 4, 5, 21, 26, 27, 28.1, 29, 32, 35, and 40, and Form 6, and how they would affect appellate practice. Draft amendments to Appellate Rules 32 and 28.1 would reduce the current length limits for appellate briefs, and draft amendments to Rules 5, 21, 27, 35, and 40, and Form 6 would convert page length limits to word limits in most cases, using a conversion rate of 250 words per page. Draft amendments to Rule 29 would amend the current provision, and add a new provision for amicus curiae briefs on petitions for rehearing.

The public comment period on the draft amendments is open until mid-February 2015, and the Advisory Committee on Appellate Rules invites comments from the public, bench and bar. You can review the draft amendments and submit comments online at this website: http://www.uscourts.gov/RulesAndPolicies/rules/proposed-amendments.aspx.

 

CCL President Chairs RAND Board Meeting

October 27th, 2014

As chair of the Board of Overseers of the RAND Institute for Civil Justice, CCL President Robert S. Peck presided over a two-day board meeting in New York, where RAND researchers presented a number of projects still in their early stages.  Among the presentations was an eye-opening demonstration about cybercrime and its societal costs that was developed in a different segment of the RAND Corporation. Board members also had an opportunity to suggest areas of research on civil justice issues where neutral empirical study could be helpful.

The RAND Institute for Civil Justice, based in Santa Monica, California and established in 1979, seeks to make the civil justice system more efficient and more equitable by supplying government and private decisionmakers and the public with the results of objective, empirically based, analytic research. Its research analyzes trends and outcomes, identifies and evaluates policy options, and brings together representatives of different interests to debate alternative solutions to policy problems.

CCL’s Nannery Attends ABA Class Action Institute

October 24th, 2014

Last week, CCL’s Valerie M. Nannery participated the ABA’s 18th Annual National Institute on Class Actions in Chicago, IL. The Institute featured speakers from the plaintiffs’ and defense bars, as well as several academics and federal judges. Topics included a review of recent case law developments on class actions, litigating privacy and data-breach class actions, and the Third Circuit’s new “ascertainability” requirement. Members of the Rule 23 Subcommittee of the Judicial Conference Advisory Committee on Civil Rules also attended in the Institute, as well as conducted their own “town hall” style meeting where practitioners offered specific ideas about potential amendments to Rule 23, and asked questions of the subcommittee members.

CCL Attorneys Participate in ABA TIPS Fall Meeting

October 20th, 2014

CCL’s Robert S. Peck and Andre M. Mura represented the plaintiff’s perspective in committee and other meetings during the American Bar Association’s fall meeting of the Tort Trial and Insurance Law Section (TIPS) in California. Both attorneys are members of the TIPS Plaintiffs Policy Task Force, where issues affecting the plaintiffs’ bar were discussed.

In addition, Mura participated in the meeting of the TIPS Appellate Advocacy Committee. Peck 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.