News

As vice chair of the Board of Overseers, CCL’s Robert S. Peck participated in the biannual meeting of the RAND Institute for Civil Justice, which conducts objective, empirically based, analytic research aimed at improving the operation of the civil justice system Oct. 25-26 in Pentagon City, Va. Among the topics discussed during that meeting was the role of hedge funds in the financial crisis, emerging legal issues in public nuisance litigation, compensation of members of wounded members of the military, and use of new survey technology for gathering data about civil justice issues.

CCL prepared an Amicus Curiae brief for the American Association for Justice in the high-profile case, U.S. Airways, Inc. v. McCutchen, No. 11-2885, pending in the U.S. Supreme Court. The case focuses on the rights of an ERISA plan to reimbursement of benefits out of a personal injury award obtained by the beneficiary. The AAJ amicus brief argues that the ERISA plan should be required to pay its share of the attorney fees incurred by the beneficiary to achieve the award. CCL Attorney Jeffrey White authored brief, filed Oct. 25, 2012.

The New Hampshire Supreme Court has struck down parts of the state’s mandatory screening panel statute in medical malpractice cases as an infringement of the litigants’ right to trial by jury. In re Southern New Hampshire Med. Ctr., 2012 WL 5349992 (N.H. Oct. 30, 2012). CCL prepared an amicus brief filed on behalf of the American Association for Justice and New Hampshire Association for Justice. The brief, authored by CCL attorney Jeffrey White, surveyed the experience of other states, some of which struck down their screening panel statutes as violative of the jury right, while many others repealed the legislation as costly and ineffective. The New Hampshire court rejected the lower court’s determination that the statute violated the separation of powers doctrine, but held that provisions preventing the parties from using documents and witnesses to attack the panel findings violated the state constitutional right to trial by jury.

CCL’s Robert S. Peck spoke about Medicare liens and recent case developments during an American Bar Association continuing legal education teleseminar conducted Oct. 23. Peck who was counsel in the groundbreaking case of Bradley v. Sebelius, 621 F.3d 1330 (11th Cir. 2010), which held that Medicare was only entitled to its pro rata share of a settlement to reimburse it for medical expenses, rather than the entire settlement, as it had asserted.

An ERISA plan seeking reimbursement out of a tort settlement continues its quest to enforce its lien against the beneficiary’s lawyers. The plan lost in the district court and before a unanimous panel of the Eighth Circuit. Treasurer, Trustees of Drury Industries, Inc. Health Care Plan and Trust v. Goding, 692 F.3d 888 (8th Cir. 2012). The plan has now petitioned for rehearing en banc. CCL’s Jeffrey White, representing the law firm, filed his response to the rehearing Petition Oct. 22.

CCL’s Robert S. Peck participated in a meeting of the Board of Directors of Justice at Stake, a nonpartisan national partnership of more than 50 organizations, working to keep courts fair and impartial through public education, litigation and reform. The Oct. 18-19 board meeting took place in Seattle, Washington, where the board discussed developments in judicial elections and its impact on the work of courts. Peck chairs the Board’s amicus curiae committee.

With unusual speed, the U.S. Court of Appeals unanimously upheld a $48 million verdict in favor of an injured airport baggage handler October 16, in a case argued by CCL’s Robert S. Peck just two weeks earlier. Vito Saladino suffered severe injuries, sufficient to render him a quadriplegic, when the hood of the baggage tractor he was riding as a passenger at the end of his shift, was blown open by jetwash from a test start at a gate at JFK airport, breached the passenger compartment, and hit him on the head. The Second Circuit’s summary order in Saladino v. Stewart & Stevenson Services, Inc. affirmed the judgment in all respects, finding the evidence sufficient to support liability, rejecting the defendants’ argument that no liability should attach because the optional cab of the tractor had been removed, that expert testimony was necessary to establish the placement and wording of the missing warnings, that Saladino did not need a warning as an allegedly knowledgeable user, and that the District Court abused its discretion under New York law in upholding a $15 million award for past and future pain and suffering.

At a policy symposium sponsored by the RAND Institute for Civil Justice, CCL’s Robert S. Peck spoke on “The Future of Class Actions after Wal-Mart v. Dukes” Oct. 16 in Santa Monica, California. In the Wal-Mart case in 2011, the Supreme Court of the United States tightened the commonality requirements for the certification of class actions under Federal Rule of Civil Procedure 23 and decertified the largest federal employment class action ever assembled. Since the decision, defendants have tried unsuccessfully to apply the same reasoning to state class actions as a matter of due process. Peck spoke about these cases and why the Court’s new construction of Rule 23 should not affect class actions tried in state courts.

As a member of its governing Council, CCL’s Robert S. Peck attended the Fall Meeting of the American Bar Association’s Tort, Trial and Insurance Practice Section (TIPS), who boasts 20,000 members, held in La Quinta, California October 10-14. During the meetings, issues regarding judicial disqualification, trial by jury, and asbestos litigation were discussed. Peck chairs the TIPS task forces on judicial disqualification issues and asbestos litigation.

CCL’s John Vail presented a paper at the University of South Carolina School of Law’s Symposium on Personal Jurisdiction. You can now access the 2011 Symposium Issue, including John’s article “Six Questions in Light of J. McIntyre Machinery, Ltd. v. Nicastro.”