Peck Chairs ABA Hearings on Asbestos Litigation

June 6th, 2013

CCL’s Robert Peck chaired two days of American Bar Association hearings on asbestos litigation June 5 and 6 in Washington, D.C. The Task Force on Asbestos Litigation and Bankruptcy, chaired by Peck, heard from academic witnesses, economists, proponents and opponents of legislative changes, and attorneys from both sides of the litigation.  Asbestos litigation is considered the longest-running mass tort in history.  Originally considered a “miracle material” because of its durability and flame-retardant qualities, inhalation of asbestos fibers causes serious illnesses and death after a long latency period.  The five-member task force is charged with examining issues in the litigation and the relationship between claims made against bankruptcy trusts and tort claims made against solvent defendants.  The task force plans to hold a second set of hearings in Los Angeles in October.

CCL Files Amicus Curiae Brief In D.C. Circuit Case Challenging Preemptive Scope of Occupational Safety And Health Regulation

May 24th, 2013

The American Tort Reform Association (ATRA) filed a petition in the U.S. Court of Appeals for the D.C. Circuit challenging the Occupational Safety and Health Agency’s (OSHA’s) edits to preemption language in the Hazard Communication Standard. The federal Standard establishes minimum labeling requirements for hazardous chemicals. ATRA argues that the preemption language in effect prior to these edits in 2012 suggested that the federal Standard preempted common-law duties and liabilities, such as for failure to warn.  OSHA’s edits, according to ATRA, foreclose preemption. These changes, ATRA maintains, were made without notice or opportunity for comment, and thus are ultra vires.

CCL has now filed an amicus curiae brief for the American Association for Justice (AAJ) in this case. The brief, written by CCL’s Andre M. Mura, and filed in support of OSHA, expresses AAJ’s concern that if tort remedies against chemical manufacturers are limited through improper application of preemption principles, injured workers will be left without compensation and chemical manufacturers will not have adequate incentive to conduct a thorough hazardous material review, or to update labeling when new hazards emerge. The brief takes issue with ATRA’s preemption arguments, contending instead that the federal Standard has never been understood to preempt common-law duties and liabilities. The brief further argues, not only did OSHA not intend to preempt common-law duties in this federal Standard, it has no authority to do so, because Congress, in enacting the OSH Act, never authorized preemption of common-law duties on the scale imagined by ATRA.

CCL Urges Supreme Court to Review LHWCA Decision

May 23rd, 2013

CCL filed an amicus curiae brief on behalf of AAJ today urging the U.S. Supreme Court to review a Virginia Supreme Court decision denying recovery under the Longshore and Harborworkers Compensation Act. Minton v. Exxon Mobil Corp., Docket No. 12-1319. 

Minton, a shipyard repair supervisor, was stricken by mesothelioma caused by exposure to asbestos dust on Exxon oil tankers. The Virginia court overturned the jury's verdict, holding that the vessel owner has no duty under LHWCA to protect a worker from danger if the employer had the knowledge and ability to do so. The AAJ amicus brief, authored by CCL Senior Counsel Jeffrey White, argued that controlling Supreme Court precedent requires the owner to intervene where it knows of the danger aboard its vessel and knows that the employer is taking no precautions to protect its own workers. 

Nevada Supreme Court Hears Argument on Constitutionality of Caps

May 7th, 2013

Yesterday, in Goldenberg v. Woodard, Nos. 57232, 58151, the Nevada Supreme Court, sitting en banc, heard oral argument in an appeal from a jury verdict awarding an injured plaintiff Georgia Woodard compensatory damages for the injuries she sustained as a result of fraud and professional medical negligence.

CCL’s Andre M. Mura participated in oral argument on behalf of the injured plaintiff, arguing that Nevada law limiting non-economic damages in professional negligence cases did not apply to limit the damages awarded in this case, but that if the law limiting damages applies here, the Court should rule that it is unconstitutional. Nevada lawyer Peter Durney, who successfully tried the case in the district court, also participated in oral argument. He argued that the jury’s verdict on negligence and fraud was amply supported by the evidence introduced at trial. Audio of the oral argument is available on the Court’s website.

Trial Magazine Publishes Article on “Damages Caps and Inviolate Rights”

May 3rd, 2013

In its May 2013 issue, Trial Magazine has published an article written by CCL’s Andre M. Mura entitled “Damages Caps and Inviolate Rights.” The article looks closely at state Supreme Court decisions considering whether damages caps violate the “inviolate” right of trial by jury, including recent decisions by the Missouri and Kansas Supreme Courts, which reached opposite conclusions.

Vail tells AGs CFPB should ban mandatory arbitration in consumer contracts

May 2nd, 2013

The Consumer Financial Protection Bureau (CFPB) should ban mandatory arbitration in consumer contracts, CCL attorney John Vail told lawyers from state attorney general offices at a symposium at the George Mason University law school.

 “A mandatory arbitration agreement with a class action ban is not a get out of jail free card; it’s a slip $500 to the parole board and get out of jail card,” Vail told the assembled audience, explaining that the clauses have the purpose and effect of suppressing claims.

Mandatory arbitration also undermines democratic values, Vail asserted.  “We are fifty states and one federated nation, each of which made the conscious choice to vest this kind of decision-making in citizen-jurors.  Mandatory arbitration transfers that power to a group of salaried elites.”

Vail emphasized that the CFPB should not hesitate to exercise the power Congress gave it to ban mandatory arbitration clauses in consumer contracts, as “Congress never intended that the Federal Arbitration Act apply to consumer contracts at all.”

The symposium brought together academics and practitioners to discuss how the CFPB might use its powers to alter the balance of power between consumers and businesses.  It was sponsored by the law and economics program at GMU.

CCL President Featured Speaker on Supreme Court, Appellate Practice at ABA Meeting

April 26th, 2013

The joint Spring Meeting of the ABA’s Judicial Division and Tort, Trial and Insurance Practice Section in Washington, D.C. featured CCL President Robert S. Peck in continuing legal education sessions on Supreme Court practice and on appellate issues.

Peck moderated a conversation about Supreme Court practice with former Solicitor General Paul Clement, former acting Solicitor General Neal Katyal, and Assistant Attorney General Beth Brinkman.  Including Peck, the four Supreme Court practitioners represent more than 100 oral arguments before the Court.  The panelists discussed differences in practicing before the Supreme Court at each stage of the process from other appellate courts. The Supreme Court session took place April 25.

The following day, Peck was a panelist on issues between trial and appellate courts.  In addition to Peck, other panelists included Chief Judge Eric Washington of the District of Columbia Court of Appeals, U.S. Magistrate Judge Jeffrey Cole of the Northern District of Illinois, retired Maryland Judge William D. Missouri, and lawyer Denise Dimascio.  The panel discussed preservation of issues and other issues that come up during an appeal.

CCL Amicus Brief Urges Rejection of Strict Limits on Punitive Damages

April 24th, 2013

An amicus brief filed on April 22 by CCL Senior Counsel Jeffrey White argues against reviewing punitive damage awards for gross negligence differently from awards based on willful or wanton misconduct. Aleo v. Toys R Us involves a fatal head injury to a young mother sliding down an inflatable swimming pool slide sold by Toys R Us.  A Massachusetts jury found the company grossly negligent in failing to ensure compliance with CPSC standards for such slides, awarding $2,640,000 in compensatory and $18 million in punitive damages.  Toys R Us argued on appeal that, because gross negligence is the least reprehensible type of misconduct for which punitives might be awarded, any amount in excess of a 1-to-1 ratio to compensatory damages is unconstitutionally excessive. The Massachusetts Supreme Judicial Court invited amicus participation on the question whether gross negligence awards should be reviewed under a different standard.

CCL filed a brief on behalf of AAJ and the Massachusetts Academy of Trial Attorneys, arguing against a bright-line limit on punitive damages of any category. Instead, allowing a well-instructed jury to assess reprehensibility based on the facts of the particular case carries out the state interest in punishing and deterring misconduct in a manner that is fundamentally fair to defendants.  

CCL President Addresses Court Administrators Meeting in Massachusetts

April 23rd, 2013

CCL President Robert S. Peck told court administrators meeting in Salem, Massachusetts that the law on providing language access in courtrooms under Title VI of the Civil Rights Act and various constitutional provisions remains a work in progress.  Peck spoke on the first day of the four-day First Annual Conference of the Council of Language Access Coordinators, providing an overview of the relevant law and court decisions to guide them in implementation of their responsibilities.  While the requirement of providing court interpreters in criminal cases is well-established as a function of due process and the Confrontation Clause of the Sixth Amendment, an abuse of discretion standard generally governs in civil litigation, Peck said.

Supreme Court denies review of a nursing home wrongful death case

April 22nd, 2013

Despite demonstrating little support for consumer interests in frequent pronouncements on mandatory arbitration, the Supreme Court denied review of a nursing home wrongful death case, preserving the day in court for the aggrieved family.  CCL lawyer John Vail was counsel for the successful plaintiff.  Court watchers had identified the case as one the Court might take and reverse.

In the case the Kentucky Supreme Court had decided that the decedent’s signature on an arbitration agreement could not bind the persons damaged by the decedent’s death because they press their own claims, not the claim of the person who was killed.

“The Kentucky court said, in effect:  you have to own the Brooklyn Bridge before you can pass title to someone else,” Vail said.

The Kentucky court also had ruled that a power of attorney which granted authority to do things “necessary” for another person did not grant authority to sign an arbitration agreement that was not required as a condition of admission to a nursing home. 

The nursing home argued that the Kentucky court had discriminated against arbitration and had created obstacles to fulfilling the purposes of the Federal Arbitration Act.

The Supreme Court had summarily reversed three state arbitration decisions in the last eighteen months, a result that the nursing home sought here and that court watchers expected could be achieved

The case is Beverly Enterprises v. Ping, No. 12-652.  Steve O’Brien of Lexington, Kentucky, was counsel in the Kentucky courts.  The case will return to the Kentucky courts to move toward trial by jury.