News

     CCL President Robert S. Peck spoke twice at a research symposium focused on federal court in Berkeley, California. Sponsored by the Civil Justice Research Institute, a joint project of the law schools of the University of California at Berkeley ant Irvine, the one-day event explored "What's Happening in Federal Court: Recent Findings and Research Findings for the Future."

    Peck served as a moderator and commentator on the first panel, which examined a paper by University of Connecticut law professors Alexandra Lahav and Peter Siegelman that found a profound decline in plaintiff win rates since 1985 and sought to test various hypotheses to explain the development.

    Peck also served on a panel at the end of the day, where he discussed both research techniques that should be employed more frequently and substantive topics for future research. Peck is a member of the advisory board for the Civil Justice Research Institute. 

     In a case in which CCL President Robert S. Peck represents the Arkansas Supreme Court, its chief justice and two of its other members, the U.S. District Court for the Eastern District of Arkansas granted Peck's motion to stay discovery pending a resolution of his client's and the other justices' motion to dismiss the case. 

     The case was brought by an Arkansas state trial judge, Judge Wendell Griffen, asserting a violation of his civil rights when the state's highest court ordered him recused after he had participated in a political protest concerning a matter he was then presiding over. Federal Judge James Moody ordered the stay in response to a motion Peck filed. Judge Moody indicated that he expected to rule on the motions to dismiss filed by all the Arkansas Supreme Court justices in seven to ten days.

     U.S. District Court Judge Anita Brody today denied a motion made by Wells Fargo to amend her previous denial of the bank's motion to dismiss and denied its request that she certify her ruling on proximate cause for immediate review to the U.S. Court of Appeals for the Third Circuit. CCL President Robert S. Peck wrote the brief in opposition to Wells Fargo's motion in the case, City of Philadelphia v. Wells Fargo & Co.

     Last year, in a case Peck argued on behalf of the City of Miami against Wells Fargo and Bank of America, the U.S. Supreme Court upheld Miami's right to bring a case for damages over the banks' Fair Housing Act violations, but asked lower courts to determine the contours of the proximate cause standard to be applied. Judge Brody became the first federal judge to rule on that issue, holding that Philadelphia had at least met the proper standard with respect to its claims of noneconomic damages. Wells Fargo's Supreme Court Counsel Neal Katyal asked the Philadelphia-based court reconsider or certify the question for consideration at the appellate level. Peck's brief argued that the Wells Fargo motion did not meet the statutory criteria. In an order that contained no explanation, Judge Brody denied the motion.

     The case now moves forward with discovery.

  Filing on behalf of the American Association for Justice, CCL argued that apparent manufacturer liability applied to Pfizer Corporation for its labeling of asbestos-based insulation as its own in the case of Rublee v. Carrier Corp., pending in the Washington Supreme Court. 

  Vernon Rublee worked in shipyards beginning in 1965. Insulation that he and coworkers handled contained asbestos, resulting in Rublee's death from mesothelioma. The packages were stamped with the dual logos of Quest and Pfizer, which had acquired Quest. Under the "apparent manufacturer" doctrine, going back a century, a company that places its name on a product as though it were its own should be treated as the manufacturer. Nonetheless, the Washington Court of Appeals rejected application of the doctrine to Pfizer. It instead held that Rublee's employer was a sophisticated purchaser who understood that Quest was the real manufacturer. 

   The AAJ brief argued, however, that the court applied the wrong test. As in much of tort law, the proper perspective was that of the ultimate user of the product. Citing cases where employees were injured by defective products purchased by the employer, courts regularly applied apparent manufacturer liability to the company that had affixed its logo onto the defective tool, regardless of what the employer knew. It further argued that the intermediate appellate court's approach undermined the compensatory and deterrent value of products liability law, which uses a strict liability regime to enable parties innocently injured by the defect to receive compensation and to change manufacturing practices and labeling. In addition, the brief argued that particularly in asbestos cases, which involve injuries that do not manifest for decades after exposure and where the rules regarding statutes of limitation and the discovery of injuries are relaxed because of these latency periods, a user-based rather than purchaser-based rule best serves the objectives of the civil justice system.

Appeals court panel revives suit faulting Medtronic drug pump in patient death

    A federal court rejected efforts by Honeywell, Inc. and Ford Motor Company to gain access to documents filed in connection with asbestos-related bankruptcies for use in lobbying efforts connected to asbestos litigation. Instead, as urged in an amicus brief filed on behalf of the American Association for Justice by CCL, the court affirmed a bankruptcy court ruling that restricted the documents' use to litigation purposes.    

     The companies had argued that they were entitled to unrestricted access to the documents for legislative and lobbying purposes. Both companies have defended cases against asbestos liability. Many of the documents they sought in this action, known as In re Motion to Access 2019 Statements, were in closed cases and contained significant personally identifiable information that would have to be redacted if ordered released. Honeywell and Ford argued that either the original plaintiffs or the court itself would have to pay the costs of redaction.

     The U.S. District Court for the District of Delaware rejected these arguments. First, it held that many of the records were restricted under orders that were 14 years old, affirmed on appeal, and not subject to collateral attack at this time. As to other records, the court held that they were subject to privacy protections enacted by Congress in 2005, which created an exception to the presumption that records in bankruptcy cases are public documents. Finally, the court declared that the companies did not seek access to the documents for a proper purpose in claiming that the documents would support their lobbying activities. Instead, the court held that litigation activities served as the only proper purpose for such a motion.

     The Minnesota Court of Appeals today held that claims on behalf of a 17-year-old girl who died when her medical implant failed were not preempted by the federal 1976 Medical Device Amendments.

      In Jones v. Medtronic, Inc., the court ruled that the trial court had mistakenly dismissed claims for manufacturing defects, failure to warn, and breach of express and implied warranty as preempted. Instead, the court held that the liability action paralleled federal requirements and therefore could proceed.

     Kaitlyn Jones suffered from congenital severe cerebral palsy with spastic quadriplegia. She was implanted with a Medtronic SynchroMed(R) II device to deliver periodic, controlled doses of medication to control her muscle spasticity. Due to undisclosed cycles of overinfusion and underinfusion caused by malfunctions, the medication was not delivered, resulting in Kaitlyn's death. 

     Accepting Medtronic's argument that the complaint filed on her behalf lacked sufficient specificity to constitute a parallel claim, the trial court dismissed the case. CCL President Robert S. Peck represented the plaintiffs on appeal, arguing that violations of federal regulations identified by the Food & Drug Administration in warning letters, recalls of the device, and a lawsuit seeking to enjoin its further use replicated product liability actions under Minnesota law. Citation of these federal violations in the complaint with the parallel elements of Minnesota law provided fair notice of the basis of Medtronic's liability, he said in briefs and the February 1 oral argument before the court. The Court of Appeals unanimously agreed.

     A New Mexico District Court declared the state's 1976 limits on medical malpractice damages unconstitutional in a decision where CCL President Robert S. Peck testified as an expert witness. The cap would have reduced a $2.6 million jury verdict to $600,000 plus medical expenses had the cap not been invalidated.

    The court held that the cap violated the inviolate right to trial by jury in the New Mexico Constitution. Because the statutory cause of action created in 1976 to create the cap was duplicative of the preeexisting common-law cause of action for medical malpractice, the court ruled that the jury's authority in the case was set by the Constitution, which requires that the right to a jury trial exists "inviolate" from how it was "heretofore" practiced. The constitutional authority of the jury includes both the determination of the facts presented at trial and the damages incurred.

    The case, Siebert v. Okun, is likely to be appealed by the defendant-physician.

     Representing the Arkansas Supreme Court, its chief justice, and two other justices of that court, CCL filed a motion for a temporary stay of discovery pending resolution of its motion to dismiss the case in the U.S. District Court for the Eastern District of Arkansas. The state supreme court and each of its justices were sued by a state trial court judge, alleging that his civil rights were violated when the high court ordered he be recused. The plaintiff-judge had participated in a protest and written a blog post related to a case then pending before him. The Supreme Court, upon a motion from the state attorney general, ordered the judge recused in that case and all similar matters.

     CCL filed a motion to dismiss, arguing that the Eleventh Amendment foreclosed suit against the state supreme court in federal court without its consent. Moreover, the lawsuit failed to state a claim because, among other things, the judge had no property right in hearing particular cases. The due process rights of the litigants to a fair tribunal that has not pre-judged the matter predominated over any right the judge might claim. Similar motions to dismiss were filed by other counsel on behalf of the remaining justices. 

     The plaintiff-judge has made clear that he seeks discovery that will delve into the internal deliberations of the court on the recusal order. The motion to stay, filed on behalf of all defendants, asks that the dismissal motions be determined before discovery commences.

     CCL President Robert S. Peck re-joined the Board of Overseers of the RAND Institute for Civil Justice (ICJ) last week, attending its Spring meeting at RAND's headquarters in Santa Monica, California. Peck previously served on the Board from 2004 to 2016, the last three years as chair.

     The ICJ is a think tank that undertakes empirical research designed to make the civil justice system more efficient and more equitable. It is a part of the RAND Corportation, a noted policy research organization with a long history of assisting policymakers obtain the best information available to address issues they face.

     At the Board meeting, Peck suggested that the ICJ undertake new research based on recent U.S. Supreme Court decisions on personal jurisdiction that reduce the ability of plaintiffs to bring all parties responsible for the injuries before a single court at once that could then assess liability and damages. In her dissent in Bristol-Meyers Squibb Co. v. Superior Court, 137 S.Ct. 1773 (2017), Justice Sonia Sotomayor expressed the fear that these decisions will "curtail -- and in some cases eliminate -- plaintiffs' ability to hold corporations fully accountable for their nationwide conduct." Defendant corporations have cited Justice Sotomayor's dissent to claim that that indeed is what the Supreme Court held and intended, and some courts have agreed, holding that plaintiffs must file multiple lawsuits in different states to seek full compensation for their injuries. Research documenting this shift could inform the due-process analysis that undergirds decisions on personal jurisdiction, he said.