News

CCL President Robert S. Peck spoke about recent decisions, rules proposals, and legislation that attempts to reverse the traditional idea that a plaintiff is master of the complaint at the American Association for Justice’s 2014 Leaders Forum Retreat in La Jolla, California on May 18.  Under the master of the complaint rule, a plaintiff may choose the claims and venue in which a dispute is litigated, subject to limited exceptions.  However, according to Peck, control over that process is rapidly diminishing and the obstacles to a person’s day in court, which was the promise of the 1938 adoption of the Federal Rules of Procedure, are growing. Specifically, Peck addressed issues of jurisdiction, removal to federal court, the plausibility requirement coming out of the Supreme Court’s Iqbal and Twombly decisions, the modern use of summary judgment, the battle over class actions, discovery, and renewed efforts to change state rules of procedure.  Peck said that trial lawyers need to be aware of the trends, fight back to guarantee clients a day in court, and begin to develop their own proposals to assure effective justice, not just efficient disposition of cases.

CCL President Robert S. Peck participated as an observer in deliberations of a new 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 for the first time May 11-13 in Arlington, VA.

The task force began an 18-month effort to look at issues of cost and delay in the system, as well as bet practices and rules proposals that will as drew these problems. Subcommittees of the task force will continue meeting by phone until another session planned for Washington, DC in November.

On May 10, a Florida trial judge in Pensacola heard CCL President Robert S. Peck argue that the state statute requiring medical malpractice plaintiffs to authorize ex parte contacts with their treating physicians by their litigation opponents beginning during the period before the lawsuit is filed is preempted by federal law and violates the Florida Constitution.

Peck asserted that, as a federal district court held last September in a case he also argued, the Florida law was preempted by the privacy rules promulgated under the federal Health Insurance Portability and Accountability Act (HIPAA), which overrides state laws less protective of privacy.

He also argued that the new statute was inconsistent with procedural rules written by the Florida Supreme Court, thereby violating separation of powers, constitutes a form of economic favoritism in violation of the state constitutional ban on special legislation, and inhibited access to the courts.

The case was taken under advisement, though a ruling is expected soon in the case, Weaver v. Meyers. Meanwhile, the federal decision, Murphy v. Dulay, will be heard on appeal in the U.S. Court of Appeals for the 11th Circuit during the week of August 18.

Last summer, the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States published numerous draft amendments to the Federal Rules of Civil Procedure for public comment. During the six-month comment period, the Advisory Committee on Civil Rules received more than 2,000 written comments, and heard from more than 120 witnesses at three public hearings. Attorneys at CCL attended each of public hearings and reviewed all of the written comments, and prepared a preliminary report summarizing the public commentary on the proposals, which was released today. The report estimates the number of comments on specific proposals, as well as comments on the package of proposals generally, and examines the types of commenters on the proposed amendments.

The preliminary report demonstrates that the response to the proposed amendments was overwhelmingly negative on most of the proposals. The negative response came from a wide array of commenters including members of the plaintiffs’ bar, as well as attorneys and non-profit organizations that represent individuals and small businesses against larger entities like corporations and governments in a variety of civil litigation, including civil rights, employment, consumer rights and environmental justice cases. A large number of law professors, more than two dozen members of Congress, and several current and former federal judges also opposed many of the proposals, including the proposal to incorporate “proportionality” into the definition of the scope of discovery. More than two-thirds of the comments on the proposed addition of “proportionality” into the scope of discovery opposed the amendment.

Despite the strong opposition articulated to many of the proposals, the Advisory Committee on Civil Rules unanimously recommended the adoption of several draft amendments, including the change to Rule 26(b)(1) that would add “proportionality” to the scope of discovery, with some revisions to the published version of the text and Committee Note. The Standing Committee will consider this recommendation at its next meeting on April 29th and 30th in Washington, DC.

CCL’s supplemental comments on the proposed amendments are available here.

Questions about CCL’s Preliminary Report should be directed to Valerie M. Nannery, Senior Litigation Counsel.

On May 7, CCL’s Chief Litigation Counsel Louis Bograd appeared before a panel of the U.S. Court of Appeals for the Sixth Circuit in Cincinnati to represent the plaintiffs in 68 consolidated appeals arising out of the Darvon MDL. Plaintiffs had sued the manufacturers of both the brand-name drugs Darvon and Darvocet and the generic equivalent, propoxyphene, for severe cardiac injuries caused by their use of the drug, asserting claims for both products liability and tortious misrepresentation. Judge Danny C. Reeves in the Eastern District of Kentucky had dismissed all of the MDL plaintiffs' claims on various grounds, including federal preemption.

Bograd argued to a panel that included Circuit Judges John Rogers, Jeffrey Sutton, and Richard Suhrheinrich that those rulings were in error and should be reversed. Plaintiffs had pled products liability claims against the generic manufacturers that paralleled the federal misbranding statute and thus were not preempted under the reasoning of the Supreme Court decisions in Pliva, Inc. v. Mensing and Mutual Pharmaceutical Co. v. Bartlett. Plaintiffs should likewise have been permitted to proceed against the brand manufacturers under traditional state tort law misrepresentation causes of action for misrepresenting the safety and efficacy of propoxyphene. A decision is expected by this fall.

CCL’s Louis M. Bograd and Andre M. Mura have completed briefing for appeals pending before the en banc U.S. Court of Appeals for the Ninth Circuit, on behalf of plaintiffs injured by propoxyphene-containing pain products. Corber v. Xanodyne Pharm., Inc., No. 13-56306; Romo v. Teva Pharm. USA, Inc., No. 13-56310. These plaintiffs filed separate suits for damages in California state court, and then counsel filed a petition for coordination under California Code of Civil Procedure (“CCP”) 404. The defendants then immediately removed the suits to federal court, based on a provision of the Class Action Fairness Act which authorizes removal of “mass actions.” Plaintiffs requested that the federal district court remand the cases to state court, because these suits did not qualify for removal under CAFA. To qualify as a removable mass action under CAFA, Plaintiffs explained, 100 or more plaintiffs must propose that their cases be tried jointly. The district court and a divided panel of the Ninth Circuit agreed with Plaintiffs that removal was not proper because the plaintiffs had not proposed that their cases be tried jointly, and thus ordered the cases remanded to state court. The Ninth Circuit then agreed to consider this issue en banc.

Plaintiffs argued in supplemental briefing filed yesterday that the filing of a petition for coordination under CCP 404 is not, by itself, a proposal that Plaintiffs’ claims be tried jointly within the meaning of CAFA. In addition, Plaintiffs argued that none of their written submissions requested a joint trial. Lastly, Plaintiffs explained that the Supreme Court’s recent decision in Mississippi ex rel. Hood v. AU Optronics Corp., 134 S. Ct. 736 (2014), dispels any doubt that remand is warranted here. For these reasons, Plaintiffs urged the en banc Ninth Circuit to affirm the district court’s remand order.

The en banc Ninth Circuit is scheduled to hear oral argument in June.  

On April 11, the U.S. Court of Appeals for the 10^th Circuit handed down its opinion in Teague v. Johnson & Johnson, an appeal raising issues of federal jurisdiction under the “mass action” provision of the Class Action Fairness Act (CAFA). More than 600 plaintiffs who had suffered injury as a result of their use of transvaginal mesh medical devices manufactured by Johnson & Johnson sued the company in eleven separate actions, each with fewer than 100 plaintiffs, in state court in Oklahoma. Defendant removed the cases to federal court contending that, because all of the cases were before the same judge, the cases constituted a mass action for purposes of federal jurisdiction under CAFA. After the District Court ordered the cases remanded to state court, J&J sought and received permission to appeal the issue to the Court of Appeals.

CCL submitted an amicus brief to the 10^th Circuit on behalf of the American Association of Justice, written by CCL’s Chief Litigation Counsel, Louis Bograd. CCL argued that the filing of multiple, similar lawsuits each with fewer than 100 plaintiffs, without more, does not constitute a proposal that the separate suits be “tried jointly” and thus is insufficient to confer federal jurisdiction as a “mass action” under CAFA.

The 10^th Circuit panel unanimously agreed with CCL, AAJ, and the plaintiffs, and affirmed the district court’s remand order. The Court rejected defendant’s contention that plaintiffs “implicitly” proposed a joint trial by filing multiple lawsuits within a single jurisdiction, where plaintiffs had not asked that the claims be consolidated or coordinated for trial in any way.

Teague is just one of a series of cases in which CCL has defended plaintiffs’ right to sue in the forum of their choice and opposed efforts to remove cases to federal court under the mass action provision of CAFA.

Asserting that decisions in the federal circuits evince confusion and conflict on whether the statute of limitations in the Federal Tort Claims Act (FTCA) is subject to equitable tolling and under what circumstances, CCL prepared and filed a petition for certiorari in the U.S. Supreme Court Monday in Sanchez v. United States. The underlying case involves the death of a mother (and anesthesiologist by profession) after giving birth to her third child, allegedly because her doctors failed to perform an immediate cesarean hysterectomy because of the patient’s known preexisting condition.  Plaintiff’s counsel, hired nearly a year later, still needed to make strenuous efforts to obtain a death certificate, which only became available more than a year later, and the patient’s medical records.  Complying with all the rigorous requirements of Massachusetts law and filing within the three-year state statute of limitations, the plaintiff was surprised to learn that the private doctors who cared for the plaintiff at a private hospital and who worked for a private health center were deemed federal employees for purposes of the FTCA. The United States substituted itself as defendant, removed the case to federal court, and then successfully moved for dismissal because the FTCA statute of limitations is only two years, not the three years provided by Massachusetts law.

 In rejecting the argument that equitable tolling should permit the action to go forward, the First Circuit held that the statute of limitations is jurisdictional and that counsel should have done more to discover the imputed federal status of the defendant-doctors.  The ruling conflicts with decisions in the Third, Seventh and Ninth Circuits.  In fact, the United States has filed a petition for certiorari, arguing that two Ninth Circuit decisions are erroneous and calling the landscape of decisions within the federal circuit to be fractured and confused.  CCL’s Petition was written by Robert S. Peck and Andre M. Mura and argues that the issue remains unresolved despite repeated reexaminations in the circuits, all of whom but the Tenth Circuit engage in some type of equitable tolling analysis, whether those courts believe it proper or not.  The analysis, however, still differs by circuit, despite the fact that there is no public record means of determining the imputed federal status of individual doctors, particularly when compulsory discovery is unavailable before a case is filed.  A decision on certiorari is expected before the end of the Supreme Court term.  

CCL Senior Litigation Counsel Valerie Nannery attended the April 10 and 11 meeting in Portland, Oregon of the Advisory Committee on Civil Rules, which develops civil rules proposals for the  Judicial Conference of the United States. The most recent round of proposals, which were approved at the meeting, focuses largely on the rules governing discovery. The package, put out for public comment last August, generated a record 2,300 comments and significant controversy.  At the Portland meeting, and in response to the comments, the Advisory Committee voted unanimously to withdraw proposed presumptive limits to the number of depositions, interrogatories, and requests for admission. In addition, revisions of a proposal that would add a requirement of proportionality to the rule governing the scope of discovery were approved. In the newly approved version, the “amount in controversy” factor no longer is listed first, in order to deemphasize the factor, and a new factor – the “parties’ relative access to relevant information” was added to address situations where the defendant has the only access to information essential to the plaintiffs’ case. An expanded Committee Note, which is intended to guide courts in implementing the rule, explains that the use of the term “proportionality” within the rule is merely an attempt to reflect existing requirements without changing the scope of discovery. The Advisory Committee indicated that the changes improved the proposed rule and were a product of the incisive comments received from practitioners. Finally, the Advisory Committee approved a substantially rewritten rule governing a party’s failure to preserve electronically maintained information.

The approved proposals will next be reviewed at a meeting at a meeting of the Standing Committee in May. If that committee approves, it then moves on to the Judicial Conference, which meets in September.

In preparation for the Advisory Committee meeting April 10-11, 2014 in Portland, Oregon, CCL's Valerie Nannery filed additional comments opposing the proposed amendments to the Federal Rules of Civil Procedure.  These comments focus on several of the remaining recommendations that are problematic and do not adequately respond to the comments and testimony that largely opposed the draft amendments.  The comments may be read here.