News

In a November 28, 2012 article, The National Law Journal quoted CCL attorney John Vail on why a five-page, unsigned U.S. Supreme Court opinion reversing the Oklahoma Supreme Court in Nitro-Lift Technologies v. Howard represents a troubling trend in the Court's treatment of arbitration issues.  In the field of arbitration, the Court seems to issue per curiam opinions overturning state supreme court decisions that favored consumers regularly. 

Vail told the paper that the this approach trend was “is not really the court's role, and its resources are better devoted elsewhere."   The Court’s primary function is resolving conflicts on important issues in the lower courts and other doctrinal issues, not simply correcting errors. 

Vail has written previously about the way the Supreme Court has misinterpreted the Federal Arbitration Act to create a body of law that favors mandatory arbitration and threatens the fair and public resolution of consumer and employee claims.

On Nov. 29, CCL President Robert S. Peck spoke at an annual Consumer Attorneys of California continuing legal education seminar on the topic of taking a case to trial with an appeal in mind.  Peck emphasized that many cases are likely to result in an appeal and that it is just as important to prepare for that appeal during trial as it is to prepare the evidence for presentation before the jury.

The Pennsylvania Supreme Court on November 21, 2012 significantly expanded the scope of liability of nursing homes and other health care entities. Scampone v. Highland Park Care Cente, 2012 WL 5894904 (Pa. 2012), arose out of the death of a 94-year-old nursing home resident due to dehydration, malnutrition and neglect. Plaintiff alleged that the nursing home and its management company provided inadequate staffing and training. The jury awarded $193,500, and the appellate court affirmed, holding that the nursing home was sufficiently similar to a hospital to be subject to liability for hospital corporate negligence under Pennsylvania precedent.

The state Supreme Court affirmed on a somewhat broader ground. The proper inquiry was whether defendants had undertaken a duty to provide services to decedent and whether they did so negligently. The Court also rejected any special tort immunity “for the nursing home industry based upon appellants’ predictions of financial doom.” The court remanded to the trial court for a finding on these issues and a new trial.

AAJ filed a brief as amicus curiae, authored by CCL counsel Jeffrey White.

On November 15, 2012, CCL Senior Litigation Counsel Louis Bograd spoke at a mass torts seminar at the Ohio Association for Justice Mid-Winter meeting in Cleveland. Bograd’s speech, entitled Drug and Device Litigation: Understanding and Coping with the Supreme Court's Evolving Preemption Jurisprudence, reviewed the Supreme Court’s preemption jurisprudence over the past two decades with particular regard to its application to products liability claims against the manufacturers of products regulated by the FDA including medical devices, prescription and non-prescription drugs, and vaccines. Bograd advised the audience that attorneys litigating products liability and consumer protection claims involving products regulated by the FDA need to understand the reach and limits of the doctrine of FDA preemption as it applies to each regulated product.

The Supreme Court has handed big business a Get Out of Jail Free card, CCL lawyer John Vail today told the national convention of the Federalist Society, describing rulings under the Federal Arbitration Act that effectively shield large corporations from liability to consumers and employees.

Part of a panel on “The Roberts Court and Litigation Against Big Business:  Too Much, Too Little, or Just Right?” Vail provided an opposing view to panelists who claimed the Court is neutral in its business rulings.

Detailing the history and purpose of the Act, Vail demonstrated how the Court has created law that his little to do with the statute Congress wrote in 1923.  Vail noted that even former Justice Sandra Day O’Connor had found “the Court has abandoned all pretense of ascertaining congressional intent with respect to the Federal Arbitration Act, building instead, case by case, an edifice of its own creation.” 

Vail cited a recent decision by Justice Scalia, which quoted an earlier decision but left out a key word at the end of the quoted sentence.  “The original intent of the Act,” said Vail, “was to make the remedy of specific enforcement available for breaches of arbitration agreements.”  By selective quotation, Vail asserted, Justice Scalia had judicially created a national policy in favor of arbitration, something Congress never intended.

On November 15, CCL President Robert S. Peck co-chaired the Lawyers Committee meeting of the National Center for State Courts (NCSC), held in Washington, D.C.  The meeting discussed various initiatives to protect the courts and their functions during this time of budget crisis.  At a luncheon the following day, Delaware Chief Justice Myron Steele, president of the Conference of Chief Justices (CCJ) and chair of the NCSC Board of Directors, inducted Peck into the Warren E. Burger Society in recognition for “his active and long-time commitment to improving the administration of justice in the state courts and for building public understanding of the need for a strong and independent judiciary.”

CCL President Robert S. Peck spoke to trial lawyer executives on constitutional challenges to tort reform laws on Nov. 13 in Portland, OR.  Members of the National Association of Trial Lawyer Executives, meeting at their annual Government Affairs Conference, heard about recent cases in states around the nation and key elements of what contributes to a successful court challenge.

The Supreme Court wrestled with itself in oral argument about class actions, seeming to conclude it had asked the wrong question in a key case about evidentiary burdens.

In Comcast v. Behrend, in which AAJ, AARP, and Public Justice submitted an amicus brief, written by CCL vice president John Vail, the Court had asked whether, when certifying a class, a trial court must rely on admissible evidence.  At oral argument it became clear that the Court was interested not in admissibility of evidence, but in the quantum of evidence necessary to support class certification.   

The Court had discussed the case at eight conferences, a highly unusual number, before granting review and articulating the question presented.  Most cases are conferenced  just once and most often the Court accepts a question presented in a petition.  The Court seemed chagrined at its own inability to distinguish admissibility and weight of evidence, Justice Kennedy noting, “it has been an awful long time since I have been in the courtroom.”

The Court’s confusion led plaintiff and defense observers to predict that the Court would not hand down a broad ruling in the case. 

During the ABA Annual Meeting in August 2012, the ABA House of Delegates debated a set of guidelines on retention of experts by lawyers that had been proposed by its Litigation Section.  The House ultimately rejected the guidelines, which were voluntary in nature, and the debate over them is recounted in an article in the November 2012 ABA Journal.  The article quotes CCL President Robert S. Peck, a delegate in the ABA House, as recognizing the guidelines as “simply a reference point” that would likely be followed “in an ideal world.” The guidelines were intended to provide advice on issues of professionalism, confidentiality, conflicts of interest, and expert fees.

Maryland could save 15 to 25 lives a year by making bars responsible for serving drinks to visibly intoxicated persons, CCL told the Maryland Court of Appeals in a brief filed today, representing the plaintiffs.  Maryland now is one of just a few states that do not impose what is known as dram shop liability.   

The Dogfish Head Ale House in Gaithersburg, Maryland, served at least 21 drinks to an obviously intoxicated Michael Eaton.  Within 45 minutes of driving away from the bar, Eaton reached a speed of at least 88 miles per hour when he plowed into the rear of the Warr family’s car, killing ten-year old Jazimen and seriously injured three other members of her family.  Eaton pleaded guilty to vehicular manslaughter and is now in prison.

“This case is an effort to hold the bar that caused this tragedy responsible for its actions, “ said CCL lawyer John Vail, counsel for the plaintiffs.  Vail further explained that the Maryland Court of Appeals already has endorsed the principles that lead to dram shop liability, reversing two older cases without naming them.  “It simply needs to apply those principles to this case,” Vail noted.

Mothers Against Drunk Driving and the Maryland Association for Justice filed amicus briefs supporting the plaintiffs.  The plaintiffs also are represented by Andy Bederman and Jason Fernandez of Greenberg and Bederman in Silver Spring, MD.

The case, Warr v. JMGM Group, LLC, will be argued by Vail on March 12, 2013.