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In Oklahoma, a general law of intentional misconduct exists which recognizes that, when a person invades the legal interests of another with the desire to cause harm or acts with the knowledge that an injury is substantially certain to result from the person’s conduct, that person has committed an intentional tort. But the Oklahoma Legislature has enacted a law making workers’ compensation the exclusive remedy when the employer acts with knowledge that an injury is substantially certain to result from the employer’s conduct. The Legislature has thus extended the workers’ compensation law, which concerns accidents and has never covered intentional misconduct, to cover certain intentional misconduct by employers.

CCL’s Andre M. Mura, along with Larry Tawwater and Darren Tawwater of the Tawwater Law Firm, are challenging the constitutionality of this law in Wells v. Oklahoma Roofing & Sheet Metal, Inc. The complaint in this case, filed by a family member of a deceased employee in state district court, alleges that the employer either desired to cause the employee harm or knew that such harm was substantially certain to occur from its actions. Recognizing that the Oklahoma Legislature has enacted a law that purports to eliminate the substantial-certainty standard, the complaint also seeks a declaration that the Oklahoma Legislature’s adoption of a stricter standard of intent for a worker’s intentional tort claim against employers than the Restatement standard of intent which would be applied to any other intentional tort violates the Oklahoma Constitution’s prohibitions on special laws, Okla. Const. art 5, §§ 46, 59. To be clear, this is not a legal challenge to the entire workers’ compensation law, which is constitutional because it applies equally to all similarly situated individuals; this is a challenge to a single provision, 85 O.S. § 12, which does not embrace all the classes that it should naturally embrace, and creates preferences and establishes inequality, in violation of the Constitution.

The Defendant has moved to dismiss the complaint, contending that the statute is constitutional, and that Plaintiff has failed to state a cause of action for intentional tort as defined by statute. Plaintiff has filed a response urging the trial court to deny the motion because the statute is an unconstitutional special law, and because the Defendant has failed to show that the complaint is deficient.

This case presents a significant constitutional question which may ultimately be decided by the Oklahoma Supreme Court.

On Feb. 18, 2014, the American Association for Justice (AAJ), along with the New Jersey Association for Justice (NJAJ), filed an amicus brief in a case of substantial interest to product liability attorneys, Aaroma Holdings, LLC v. Diacetyl Plaintiffs, No. 13-1467 (3rd Cir.).  Emoral Inc. was a manufacturer of diacetyl, a chemical for food flavorings, such as butter flavor for theater popcorn. Plaintiffs are employees of flavoring manufacturers who developed serious and permanent lung damage caused by exposure to the chemical. Emoral sold its assets to Aaroma Holdings, which has continued much of Emoral’s operations, and declared bankruptcy.  The bankruptcy trustee then entered into a settlement that released Aaroma from any claims that were part of the bankruptcy estate. A number of lung-injury plaintiffs pursued their cause of action in New Jersey state courts, contending that Aaroma could be held liable as a “mere continuation” of Emoral. Aaroma moved the federal bankruptcy court to enforce the settlement agreement and enjoin the state court actions. The bankruptcy court denied the motion, but the district court reversed, and the Third Circuit affirmed. The court of appeals held that the injured workers’  claims were generalized claims similar to other creditors of Emoral and were thus settled by the Trustee’s settlement.

The amicus brief supports plaintiffs’ motion for rehearing or rehearing en banc. The brief, prepared by David J. Molton, New York, NY, with assistance from CCL’s Jeffrey White, argues that the personal injury claims are individual claims that belong to the plaintiffs, rather than to the bankruptcy estate. To hold otherwise undermines the strong public policy behind successor liability which preserves legal redress for wrongful injury and shifts the costs of injury to the corporation that profits from the continuation of Emoral’s business and could spread the costs of the injuries caused by that business.   

This past Friday, two CCL attorneys, Andre M. Mura and Valerie M. Nannery, filed comments opposing most of the proposed amendments to the Federal Rules of Civil Procedure, which were published for public comment on August 15, 2013. Mr. Mura’s and Ms. Nannery’s comments encourage the Committee on Rules of Practice and Procedure to reconsider the majority of the proposed amendments, and highlight a few specific proposals that are especially problematic.

The proposed amendments to Rule 26(b)(1) would eliminate language that has been in the rule and understood by litigants and courts since 1946. The proposals would also add a “proportionality” analysis to the definitions of the scope of discovery, rather retain it in Rule 26(b)(2)(C)(iii), as one of several limitations on the scope of discovery. These changes have troubled commenters and witnesses because they redefine the scope of discovery and are explicitly intended to narrow it. CCL’s comments explain that restricting the scope of discovery will only harm plaintiffs who seek evidence to support their claims, and will thwart access to justice. CCL suggests that the Committee leave the “proportionality” analysis where it is in current Rule 26(b), and instead explicitly reference it in Rule 16, and require that the proportionality concept be made a part of judicial management. 

CCL’s comment also highlighted problems with the proposed amendments to Rules 4(m) Service of Process, 37(e) Failure to Preserve Discoverable Information, and the abrogation of Rule 84 and most of the Forms.

You can read CCL’s recently-filed comments here: http://www.regulations.gov/#!documentDetail;D=USC-RULES-CV-2013-0002-1535

The closing of the comment period on the proposed Rule changes was extended to tonight, February 18, 2014 at 11:59pm EST. Comments may be submitted electronically here.

Previous coverage of this issue can be found here and here on November 7, 2013, and on June 10, 2013, and April 17, 2013.

Representing the American Association for Justice, CCL’s Andre M. Mura filed an amicus curiae brief in the Florida Supreme Court, urging the Court to find that an injured worker who is totally disabled and unable to work but still improving medically is entitled to permanent total disability benefits at the expiration of temporary total disability.

In this case, Westphal v. City of St. Petersburg, No. SC13-1930, a firefighter suffered serious injuries in the course of employment. After receiving 104-weeks of temporary total disability benefits, which is the statutory maximum, Westphal applied for permanent total disability but was rejected because, despite still being totally disabled and unable to work, a medical expert opined that his medical condition might improve. Westphal was thus denied any benefits despite his injury and inability to work until he could show that he had reached maximum medical improvement. A three-judge panel of the First DCA ruled that the Workers’ Compensation Law violated the Florida Constitution’s right of access to courts, because the remedies available today were inadequate when compared with common law and statutory remedies available when the constitutional right was adopted. The First DCA then granted en banc review. After withdrawing the panel decision, the en banc court held that the Workers’ Compensation Law was properly understood to allow injured workers who remain totally disabled to apply for permanent total disability benefits at the expiration of temporary total disability benefits.

The Florida Supreme Court has agreed to review this decision. The AAJ amicus brief filed by CCL supports the ruling of the en banc First DCA. “Rather than denying injured workers any disability benefits for an indefinite period despite their being totally disabled and unable to work, and denying them any retroactive benefits if it is later evident that they had been already made a full medical recovery,” the brief argued, “the en banc First DCA’s interpretation of section 440.15(3)(d) will permit injured workers who are totally disabled and unable to work, but still possibly improving medically, to be deemed at maximum medical improvement by operation of law, and thus be eligible for permanent total disability benefits.  Put simply, totally disabled injured workers, who are required by law to give up their common law right to sue for full compensation in return for a prompt assurance of benefits, will in fact be assured benefits promptly.” Alternatively, the brief argued that, if the statute must be read to deny such benefits to injured workers, then the Workers’ Compensation Law violates the Florida constitutional right of access to courts. 

Responding to appeals filed by the State of Florida and the defendant in Murphy v. Dulay, CCL’s Robert S. Peck filed a brief on behalf of the appellee Murphy, arguing that Florida’s 2013 law that required medical-malpractice plaintiffs to authorize pre-suit ex parte interviews with their treating physicians is preempted by the federal Health Insurance Portability and Accountability Act (HIPAA). CCL had won a ruling from the U.S. District Court for the Northern District of Florida, holding the Florida requirement preempted. Both Florida and Dulay argue in their appeal that the state has required plaintiffs to sign an authorization for ex parte contacts as a condition precedent to filing a lawsuit and rely on a Texas Supreme Court ruling to assert that such an authorization is voluntary and meets all of HIPAA’s requirements.  CCL’s new brief argues that HIPAA sets forth the requirements for a waiver of privacy rights concerning health information.  Its regulations specify the steps that must be taken in litigation and require a court order that includes notice and an opportunity to object before information may be sought from a patient’s treating physicians. The Florida statute attempts to bypass those steps by coercing waiver of the rights in a manner that directly conflicts with HIPAA’s requirements and cannot constitute a voluntary waiver of the rights.

CCL also filed an opposition this week to an amicus brief filed on behalf of the Texas, Florida and American medical associations because it was filed three weeks late. A timely brief on behalf of the Florida Justice Reform Institute supporting the State and defendant was filed earlier in the month. That brief argued that HIPAA does not require that a patient’s waiver of privacy rights had to be voluntary, however, the regulations emphasize the need for voluntariness and directly rebut the argument.  No oral argument has yet been scheduled in the case.

At the Midyear Meeting of the Conference of Chief Justices in Sea Island, Georgia, CCL’s Robert S. Peck led a January 29 discussion of issues concerning judicial disqualification among chief justices from the various states. Part of the conversation concerned the language of a resolution, considered by the chief justices the following morning.  At their January 30 business meeting, the Conference unanimously approved a resolution that urged “members to establish procedures that incorporate a transparent, timely, and independent review for determining a party’s motion for judicial disqualification/recusal.”  States have a variety of constitutional provisions, statutes, and court-promulgated rules that govern disqualification and recusal in the courts. Many existing rules do not cover the state’s highest courts, which often deal with the issue only by custom. The resolution may cause judiciaries in some states to review their existing approaches and consider more formal procedures.

In Weaver v. Myers, a case pending in the Circuit Court for Escambia County, Florida, CCL filed a motion for summary judgment asking the court to declare Florida’s new law permitting ex parte interviews of a medical malpractice plaintiff’s treating physicians unconstitutional.

The law, which went into effect in July 2013, gives prospective malpractice defendants and their litigation allies during the 90 days before any lawsuit could be filed an opportunity to interview health-care providers who have treated the plaintiff in connection with the injuries resulting from negligent medical care. The statutorily authorized interviews would take place without counsel for the patient present.

In another case brought by CCL, a federal judge in the Northern District of Florida ruled that the Florida law was preempted by the federal Health Insurance Portability and Accountability Act (HIPAA), which protects the privacy of a patient’s health information and preempts state laws that are less stringent in its protections of privacy. That case, Murphy v. Dulay, is currently on appeal in the U.S. Court of Appeals for the 11^th Circuit.

In Weaver, CCL also makes the same argument that the Florida law is preempted by HIPAA, but also asserts that the law violates the Florida Constitution.  The brief argues that the procedures mandated by the statute are inconsistent with rules of discovery promulgated by the Florida Supreme Court, rendering it a violation of separation of powers. It also asserts that the Florida Constitution’s prohibition on special laws and its guarantee of access to the courts also bars the ex parte law.

CCL’s Robert S. Peck is counsel in the case, along with Levin Papantonio’s Virginia Buchanan. Argument on the motion is scheduled for February 17.

In Lance v. Wyeth, plaintiff brought suit against the manufacturer of the diet drug, Redux, for the death of her daughter resulting from her use of the drug, which was subsequently removed from the market. Because Pennsylvania law does not recognize strict liability design defect claims against drugmakers, plaintiff brought claims for negligent design, negligent marketing, and negligent decision to continue to sell Redux. Wyeth petitioned the Pennsylvania Supreme Court to dismiss these claims, arguing that Pennsylvania law does not and should not recognize such negligence liability for drugmakers. CCL senioar counsel Lou Bogard authored an amicus brief for the American Association of Justice and the Pennsylvania Association of Justice in support of plaintiff.

Finally, more than two years after the case was argued, the Pennsylvania Supreme Court yesterday handed down its decision in Lance. By a vote of 4-2, the Court affirmed a lower court ruling upholding the plaintiff’s negligence claims against Wyeth. The Court characterized Wyeth as seeking a special immunity from traditional common law negligence liability and decided that Wyeth had not provided the Court with sufficient reason to depart from the traditional common law rule. The majority opinion extensively cited, quoted, and relied upon the amicus brief submitted by CCL on behalf of AAJ and PAJ.

Although 2+ years was a long time to wait for this ruling, Lance may well prove to be the rare exception to the maxim: “Justice delayed is justice denied.”

The Supreme Court unanimously ruled today that Germany-based DaimlerChrysler could not be held liable for human rights abuses that took place in Argentina during that country’s “Dirty War” from 1976-1983 by suing the company in California.  The case arose after individuals and relatives of workers at Mercedes Benz of Argentina brought the action because of the Argentine subsidiary’s complicity with the regime in power during that time. The Court held that federal courts in California could not exercise jurisdiction, through Mercedes Benz USA, a wholly owned subsidiary of DaimlerChrysler, given the absence of any California connection to the atrocities, perpetrators, or victims. The Court held that “[e]xercises of personal jurisdiction so exorbitant . . . are barred by due process constraints on the assertion of adjudicatory authority.”

CCL filed an amicus brief on behalf of the American Association for Justice, urging the Court to issue a narrow decision that would not adversely affect assertions of jurisdiction over domestic parent corporations through the actions of their wholly owned subsidiaries that have activities in the forum state. The amicus brief was primarily authored by George Washington University associate dean Alan Morrison, with CCL President Robert S. Peck, New York University law professor Arthur Miller, and University of California at Irvine law dean Erwin Chemerinsky on the brief as well. The decision, written by Justice Ruth Bader Ginsburg, acknowledged that the decision did not reach that issue. As stated, the question decided was whether "Daimler is amenable to suit in California courts for claims involving only foreign plaintiffs and conduct occurring entirely abroad."  Thus, the opinion speaks to the "risks to international comity" of an assertion of jurisdiction over foreign events and involving foreign parties. On the other hand, the Court's discussion of agency indicates that a subsidiary can be a parent's agent for claims where the subsidiary operates, but not elsewhere, thereby preserving the jurisdiction that the AAJ amicus brief urged be left untouched by any decision.

Courtwatchers in the press also followed the decision to see if the Court would limit its decision to the international context. Bloomberg News quoted Peck as describing the opinion as a narrow one that didn’t preclude plaintiffs from pressing a different theory, one that claims a subsidiary was acting as the parent company’s legal agent. 

The Massachusetts Supreme Judicial Court today vacated a lower court’s order to compel arbitration in a nursing home case.  In this case, the estate of a nursing home resident sued the home for negligence that allegedly caused the resident’s death.  The nursing home sought to enforce an arbitration agreement executed by the resident’s wife as his health care agent.   The Massachusetts high court said that no language in the health care proxy statute gives a patient’s health care agent “authority over any decision other than medical treatment” which directly involves the provision of “medical services, procedures, or treatment of the [patient’s] physical or mental condition.”  Further that statute reflects no intent to allow the health care agent to waive a [patient’s] right of access to the courts and to trial by jury by agreeing to binding arbitration.”

The plaintiffs in Johnson v. Kindred Healthcare, Inc., were represented by former CCL attorney John Vail and by David J. Hoey of North Reading, MA.