News

CCL Releases Summary of Forthcoming Report on Comments on Proposed Changes to Federal Rules of Civil Procedure

April 4th, 2014

More than 2,300 public comments were submitted, and more than 120 witnesses testified at three public hearings on the proposed amendments to Rules 1, 4, 6, 16, 26, 30, 31, 33, 34, 36, 37, 55, 84, and Appendix of Forms of the Federal Rules of Civil Procedure that were published on August 15, 2013. Attorneys at the Center for Constitutional Litigation, P.C. (“CCL”) attended all three public hearings, reviewed the transcripts, and reviewed all of the written comments on the proposed amendments.

Today CCL released the summary of its Preliminary Report on the comments on the proposed amendments to the Federal Rules of Civil Procedure: The Comments by the Numbers. The summary estimates of the number of written comments and witnesses who testified, and which proposals they supported or opposed. The overwhelming majority of the written commentary opposed most of the proposed amendments. There was a particularly large amount of opposition to the proposed changes to the scope of discovery and to the presumptive numeric limits on discovery devices. The majority of the comments on the proposed reduction in time for service, the proposed explicit authorization of allocation of discovery costs, and the proposed abrogation of Rule 84 and most of the Official Forms opposed those proposals. The opposition to these proposals did not come only from plaintiffs’ lawyers and organizations of plaintiffs’ lawyers, but from a large number of academics, several current and former federal judges, numerous legal aid providers, civil rights groups, consumer rights groups, and from members of Congress.

The Advisory Committee meets April 10-11, 2014 in Portland, Oregon to decide whether to recommend that the rules be adopted. The Agenda Book for the meeting is here.

CCL’s summary (corrected 4/10/14) is here. The Preliminary Report will be posted when it is released.

New York Times publishes editorial about CCL case

March 27th, 2014

On March 27, the New York Times published an editorial in support of the FDA's generic drug labeling rule.  CCL Chief Litigaiton Counsel Louis Bograd represented plaintiff Gladys Mensing in the 2011 Supreme Court ruling mentioned in the piece.  You may read the full editorial here.

Peck Chairs Meeting of RAND Institute for Civil Justice

March 26th, 2014

CCL President Robert S. Peck presided at a March 20-21 meeting of the Board of Overseers of the RAND Institute for Civil Justice, where studies were discussed involving such diverse civil justice issues as judicial recusals involving stock ownership, asbestos litigation, victim compensation funds, insurance requirements for autonomous vehicles, and workers compensation. The Santa Monica, California meeting marked the beginning of Peck’s two-year term as chair of the Board.  The Institute for Civil Justice, established in 1979, analyzes trends and outcomes, as well as identifies and evaluates policy options, with an eye to making the civil justice system more efficient and more equitable through objective, empirically based research. 

Illinois Supreme Court Rejects Application of Immunity under Good Samaritan Act to Doctor Employed to Provide Emergency Services

March 24th, 2014

On March 20, 2014, the Illinois Supreme Court rejected a defendant doctor’s claim that he was entitled to immunity from medical negligence claims under the state’s Good Samaritan Act because neither he nor his employer charged a fee for the services to the hospital patient he injured. Representing the American Association for Justice (AAJ), CCL’s Valerie M. Nannery filed an amicus curiae brief in support of the plaintiffs in the Illinois Supreme Court urging the court to hold that doctors who have a duty to provide emergency services to patients are not entitled to immunity for their negligence when providing those services, and that doctors cannot escape liability for negligent emergency care simply by not billing the patient. The brief provided a national and historical perspective on Good Samaritan immunity laws and their purposes.

In the case, Home Star Bank v. Murphy, Illinois Supreme Court rejected the defendant doctor’s argument that because he was employed by the emergency room services provider and not the hospital, and because neither the patient nor his insurer were billed for the doctor’s services, the terms of Illinois’ Good Samaritan Act shielded him from liability for negligence because the services were provided “without fee.” The court’s decision effectively overturns a line of cases from Illinois’ courts of appeal that read the terms of the statute narrowly and applied Good Samaritan immunity to doctors performing their jobs in hospital settings. The court reasoned that the Illinois legislature never intended for Good Samaritan immunity to apply to a doctor who provides emergency services as a part of his job for which he is paid. Even though the patient and his insurer were not billed for these services, the services were not provided “without fee” as that term should be read. The court wrote that a narrow interpretation of that term would thwart the “unmistakably obvious legislative intent” of encouraging volunteerism and protecting generous and compassionate actors from liability. In so holding, the court discussed the leading case on these issues from California, Colby v. Schwartz, 144 Cal. Rptr. 624 (Cal. Ct. App. 1978), cited throughout AAJ’s brief. The decision brings Illinois back into line with other states with similar Good Samaritan immunity laws.

The plaintiffs were represented by AAJ member and current Board of Governors member from Illinois Keith Hebeisen and Bob Sheridan of Clifford Law Offices in Chicago, IL. The opinion of the Illinois Supreme Court is attached.

Florida Strikes Med-Mal Cap as Unconstitutional-Additional New Coverage

March 21st, 2014

Additional news coverage of this important decision may be found in the LA Times and Mother Jones.


 

Orginal post March 14, 2014:

 In a landmark decision briefed and argued by CCL attorneys, Estate of McCall v. United States, the Florida Supreme Court, 5-2, struck down a non-economic damage cap that applied to wrongful death claims based on medical malpractice as a violation of the state constitution’s equal protection guarantee.  Writing for the majority, Justice R. Fred Lewis accused the Legislature of falsifying a medical malpractice crisis in an attempt to justify a measure that had “the effect of saving a modest amount for many by imposing devastating costs on a few,” and generating an increase in net income of more than 4300 percent for insurance companies that did not translate into premium savings for doctors. The Court concluded that no medical malpractice crisis existed in 2003, when the legislation was enacted, and, even if one did, no crisis exists today.

CCL’s Robert S. Peck and Valerie Nannery represented the Estate of Michelle McCall, a twenty-year-old woman who died after giving birth to a baby boy in 2006,  with Peck arguing the case before the Florida Supreme Court. McCall’s death was the result of a failure to begin a blood transfusion to replace blood lost before the late arrival of an OB-GYN after family practice physicians had induced labor.  As the trial court put it, McCall “bled to death in the presence of all medical staff who were attending her.” The case, tried before a judge by Florida lawyers Henry Courtney, Sarah Courtney-Baigorri, and Stephen Poche, resulted in a verdict of nearly $3 million, which included $2 million in noneconomic damages.  Of the noneconomic damages, $500,000 was designated as compensation for the newborn’s losses of parental companionship, instruction, and guidance and for his mental pain and suffering. An additional $750,000 each was designated as compensation for each of Michelle’s parents for their pain and suffering. However, under the challenged statute, the noneconomic damages were cut in half to $1 million because the statute set a cumulative limit on non-economic damages of $1 million against all practitioners. Agreeing with CCL’s argument, the Florida Supreme Court held that aggregate caps or limitations on noneconomic damages violate the equal protection guarantees under the Florida Constitution when applied without regard to the number of claimants entitled to recovery.

 In striking the cap, the Court not only regarded the alleged malpractice crisis as pretextual but went further and found that the “available evidence fails to establish a rational relationship between a cap on noneconomic damages and alleviation of the purported crisis.” The Court then endorsed a 1988 observation of the Texas Supreme Court that “[i]n the context of persons catastrophically injured by medical negligence, we believe it is unreasonable and arbitrary to limit their recovery in a speculative experiment to determine whether liability insurance rates will decrease.” 

Coverage of the decision may be found in the Miami Herald and Tampa Bay Times

Peck Talks about Constitutions and Damage Caps in California

March 20th, 2014

CCL President Robert S. Peck spoke to researchers at the RAND Institute for Civil Justice March 19 in Santa Monica, California, about the constitutionality of damage cap statutes and why they should almost never pass constitutional muster. He began his talk by describing the decision by the Florida Supreme Court last week that struck that state's cap on wrongful death damages in medical malpractice cases.  Peck had served as counsel in the case, Estate of McCall v. United States, and had argued it before the Florida Supreme Court. The Court held that the cap, which imposed both a per claim limit and an overall incident limit, violated due process because claimants' damages were reduced arbitrarily on the basis of the number of claimants injured.

Peck also discussed other constitutional bases for challenging damage caps, including the right to trial by jury, open court provisions, and separation of powers, using other CCL cases, such as Watts v. Lester E. Watts Med. Ctrs. (Mo. 2012) and Lebron v. Gottlieb Mem. Hosp. (Ill. 2010), as exemplars of the other approaches.

Florida Strikes Med-Mal Cap as Unconstitutional

March 14th, 2014

 In a landmark decision briefed and argued by CCL attorneys, Estate of McCall v. United States, the Florida Supreme Court, 5-2, struck down a non-economic damage cap that applied to wrongful death claims based on medical malpractice as a violation of the state constitution’s equal protection guarantee.  Writing for the majority, Justice R. Fred Lewis accused the Legislature of falsifying a medical malpractice crisis in an attempt to justify a measure that had “the effect of saving a modest amount for many by imposing devastating costs on a few,” and generating an increase in net income of more than 4300 percent for insurance companies that did not translate into premium savings for doctors. The Court concluded that no medical malpractice crisis existed in 2003, when the legislation was enacted, and, even if one did, no crisis exists today.

CCL’s Robert S. Peck and Valerie Nannery represented the Estate of Michelle McCall, a twenty-year-old woman who died after giving birth to a baby boy in 2006,  with Peck arguing the case before the Florida Supreme Court. McCall’s death was the result of a failure to begin a blood transfusion to replace blood lost before the late arrival of an OB-GYN after family practice physicians had induced labor.  As the trial court put it, McCall “bled to death in the presence of all medical staff who were attending her.” The case, tried before a judge by Florida lawyers Henry Courtney, Sarah Courtney-Baigorri, and Stephen Poche, resulted in a verdict of nearly $3 million, which included $2 million in noneconomic damages.  Of the noneconomic damages, $500,000 was designated as compensation for the newborn’s losses of parental companionship, instruction, and guidance and for his mental pain and suffering. An additional $750,000 each was designated as compensation for each of Michelle’s parents for their pain and suffering. However, under the challenged statute, the noneconomic damages were cut in half to $1 million because the statute set a cumulative limit on non-economic damages of $1 million against all practitioners. Agreeing with CCL’s argument, the Florida Supreme Court held that aggregate caps or limitations on noneconomic damages violate the equal protection guarantees under the Florida Constitution when applied without regard to the number of claimants entitled to recovery.

 In striking the cap, the Court not only regarded the alleged malpractice crisis as pretextual but went further and found that the “available evidence fails to establish a rational relationship between a cap on noneconomic damages and alleviation of the purported crisis.” The Court then endorsed a 1988 observation of the Texas Supreme Court that “[i]n the context of persons catastrophically injured by medical negligence, we believe it is unreasonable and arbitrary to limit their recovery in a speculative experiment to determine whether liability insurance rates will decrease.” 

Coverage of the decision may be found in the Miami Herald and Tampa Bay Times

CCL’s Peck Argues Indiana State Fair Case Issue

March 13th, 2014

CCL’s Robert S. Peck argued that the Indiana Tort Claims Act violates the state constitution’s equal privileges and open courts provisions, as it has been applied to claimant Jordyn Polet who was injured when the stage collapsed during the Indiana State Fair in 2011.  Jordyn had attended the state fair with her mother, older sister, and a family friend, having situated themselves in a standing-room only area by the stage for a performance of the country music duo, Sugarland. Just before the concert started, a sudden windstorm toppled the overhead rigging and lighting system, killing seven people, including the Polet family’s friend, and severely injuring Jordyn’s mother and sister. Jordyn escaped with relatively minor injuries to her ankle, but was diagnosed with post-traumatic stress disorder, for which she still receives treatment, as a result of what she witnessed.  

Under the tort claims act, Indiana has limited its liability to $700,000 per claimant and an overall limitation of $5 million per incident.  Indiana attempted to settle all claims by splitting the overall limit of $5 million, offering $300,000 in each of the death cases and offering 65 percent of all medical and hospital bills up to that time for the remaining 56 claimants. Jordyn was offered less than $2,000 in settlement and refused the offer as inadequate.  She was the only claimant to refuse a settlement.  Subsequently, the Indiana legislature appropriated an additional $6 million to be distributed to all who had accepted settlements to cover the rest of the hospital and medical expenses originally claimed.  In this case, the State argued its liability ended when it distributed the full $5 million originally authorized under the tort claims act.

Before a Marion County Superior Court judge on a motion for partial summary judgment to strike the State’s claim of complete immunity, Peck argued that the tort claims act had waived government immunity and provided Jordyn with a accrued and valid cause of action that could not be eviscerated by an offer of settlement that she did not accept.  Moreover, Peck said, the overall cap on government liability violated the equal-privileges provision because it treated Jordyn differently than others who have tort claims against the State by reducing her damages only because she was injured at the same time as many others.  He further stated that acceptance of the State’s argument that it could implement the overall cap in any rational way would permit it to devise a first come, first serve approach that would leave out many claimants, not just Jordyn.  He argued that the state could not provide some tort claimants with full economic and noneconomic damages and then offer others injured with many others a percentage of a small subset of their actual damages.

The case is under advisement.  It was also recently the subject of a telecast on NBC’s Dateline.

CCL Defends Validity of Failure-to-Update Claims Before Eighth Circuit

March 10th, 2014

On March 7, CCL filed a reply brief on behalf of plaintiff Shirley Brinkley before the U.S. Court of Appeals for the Eighth Circuit in Brinkley v. Pliva, Inc. The central issue on appeal in Brinkley is whether a generic drug manufacturer may be held liable for failure to warn when a person is injured as a result of its failure to provide her physician with warnings that the FDA has already approved for the equivalent brand-name product. Pliva failed to provide an FDA-approved warning that treatment with metoclopramide should not exceed 12 weeks, leading to Ms. Brinkley’s injuries. In the brief, CCL Chief Litigation Counsel Louis Bograd replied to Pliva’s arguments that such allegations failed to state a claim under Missouri law and were preempted by federal law, as well as Pliva’s argument that its failure to warn was not the proximate cause of plaintiff’s injuries. The Court of Appeals is expected to hear argument on this appeal in the next few months.

CCL Files Amicus Curiae Challenging Application of Tort Claims Limits in Pennsylvania Supreme Court

March 7th, 2014

Representing the American Association for Justice (AAJ), CCL’s Kathryn S. Minton filed an amicus curiae brief in the Pennsylvania Supreme Court, urging the Court to find the liability cap under the Political Subdivision Tort Claims Act unconstitutional.

In this case, Zauflik v. Pennsbury School District, seventeen-year-old Ashley Zauflik was run over by a school bus, owned and operated by Pennsbury School District, while standing outside her high school. Zauflik suffered pelvic and leg crush injuries that required an above-the-knee amputation of her left leg. After the school district admitted negligence, a Bucks County jury entered a verdict awarding $14 million in compensatory damages to Zauflik, which the court reduced to $500,000 under the cap, but urged that “a reevaluation of the constitutionality of the statutory cap on damages on equal protection grounds is necessary.” After the decision was affirmed by a divided Commonwealth Court, the state supreme court agreed to determine whether the cap violates provisions of the Pennsylvania Constitution.

AAJ’s amicus brief provides the Court a national and historical perspective on governmental immunity doctrine and defines its limited status under the Tort Claims Act damage cap as an ordinary law enacted by statute because the Court previously abrogated sovereign immunity as an antiquated common-law doctrine. Expressing concern that the cap contravenes Pennsylvania’s equal protection, open courts, jury trial, and anti-cap guarantees, the brief urges that the “Court should recognize that the statute has no extra-constitutional status and must conform to constitutional requirements[,]” and that, because it does not, Zauflik is entitled to full recovery of her jury verdict.