News

Today, CCL filed a brief in response to the amicus curiae brief filed by the Civil Justice Association of California in Hughes v. Pham, a challenge to California’s $250,000 cap on noneconomic damages now pending in the California Court of Appeal for the Fourth District, Division Two. Although briefing on the constitutional issues was completed in July, CJAC filed its brief in September. CCL’s Valerie M. Nannery authored the brief in response. The case is now fully briefed and awaits a date for oral argument.

The U.S. Supreme Court denied certiorari this morning in McNeil-PPC, Inc. v. Hutto, a preemption case in which CCL represented the respondents. In Hutto, McNeil—the manufacturer of Tylenol—tried to argue that the logic of the Supreme Court’s implied preemption ruling in Pliva, Inc. v. Mensing required preemption of plaintiffs’ claims, even though the drug at issue in Hutto was neither a generic nor a prescription drug. Federal law regulates over-the-counter (OTC) drugs in an entirely different way from prescription drugs—through a monograph system—and expressly preserves product liability claims against OTC drug manufacturers, but McNeil argued that these factors did not preclude implied preemption and sought review of a judgment against it in the Louisiana state courts. Today, the court denied McNeil’s petition without recorded dissent, Justice Alito not participating. CCL’s Lou Bograd, who argued Mensing before the Supreme Court, handled the opposition to the certiorari petition.

In a disappointing 109-page ruling, the Kansas Supreme Court upheld that state’s longstanding cap on noneconomic damages in tort cases. The underlying case, Miller v. Johnson, involved a medical malpractice case in which the doctor-defendant, treating a young woman for cancer, removed the wrong ovary, necessitating removal of her remaining ovary and inducing menopause at a young age. The cap reduced the plaintiff’s damages from $750,000 to $250,000. The majority held that the cap did transgress the right to trial by jury as historically evaluated, but then justified the cap on the basis of a supposed quid pro quo that inured to plaintiffs’ benefit, adopting a stance that all parties to the case denied was appropriate. The decision provoked two strong dissents, one of which ended with the following statement: “this court has incorrectly and unnecessarily limited jury involvement and allowed a segment of unfairly burdened Kansans to drown while maintaining higher profits for insurance companies and lower expenses for doctors. Shame on us.”

The case was argued twice before the Kansas Supreme Court. CCL’s Robert Peck participated in the second argument in February 2011, and another CCL attorney participated in the first argument in October 2009. A report on the decision is available from the Kansas City Star.

CCL urged the Supreme Court not to make many class actions prohibitively expensive by indulging a presumption that they lead large companies to settle cases unwarrantedly. Careful analysis of over thirty years of empirical study indicates that the proposition simply is not true, CCL’s John Vail wrote in an amicus brief filed today on behalf of the American Association for Justice, AARP, and Public Justice, P.C., in Comcast v. Behrend, No. 11-864. Class actions often are the only way small claims against large companies can be litigated, the brief states.

The case will be argued Nov. 5.

On October 2, CCL’s Robert Peck spoke on the opening panel of the National Summit on Language Access in the Courts, held in Houston, Texas. Sponsored by the National Center for State Courts, the Conference of Chief Justices, and the Conference of State Court Administrators, the summit was designed to assist the attending teams from 49 states, the District of Columbia, and territorial jurisdictions in implementing their constitutional and Title VI obligations to assure that parties have interpreters to enable them full access to the courts. Peck spoke on the constitutional background of the interpreter issue in the courts on a panel moderated by Chief Judge Eric Washington of the District of Columbia Court of Appeals and Michael Buenger, a lawyer who spoke on the Title VI issues.

The Conference is described at http://www.ncsc.org/Conferences-and-Events/Language-Access-Summit.aspx.

On October 1, CCL’s Robert Peck argued that the U.S. Court of Appeals for the Second Circuit should uphold the liability and damages awarded to Vito Saladino in a products liability action. Saladino, who worked for American Airlines in loading and unloading baggage at JFK airport in New York, was catastrophically injured and rendered a quadriplegic when the hood of the baggage tractor in which he was a passenger flipped up and hit him in the head. He sued the tractor’s manufacturer, which then sued American Airlines. A jury assigned 30 percent responsibility to the manufacturer and 70 percent responsibility to the airlines and awarded damages of $40 million. In the appeal, Saladino v. Stewart and Stevenson Services, Inc., the defendants raise questions about whether the jury inappropriately required a warning about the likelihood that the hood on this manufacturer’s vehicle, unlike that of 96 other tractors from other manufacturers used by American Airlines, had hinges that permitted the hood to breach the passenger compartment, whether substantial alterations to the vehicle absolved the manufacturer of responsibility, whether Mr. Saladino was a knowledgeable user who did not need to be warned about the hood, and whether the damages awarded were excessive. The case is under advisement.

Today, the U.S. Supreme Court denied the petition for certiorari in Icicle Seafoods, Inc. v. Clausen, thereby letting a $1.3 million punitive damage award stand. CCL’s Robert Peck represented Dana Clausen, an engineer injured on an Icicle Seafoods’ Bering Star vessel based in Alaska, before the Supreme Court. Under ancient maritime law, the owner of the vessel is responsible for “maintenance and cure,” the admiralty equivalent of workers compensation. After Icicle Seafoods failed to discharge this obligation and falsely filed for injunctive relief against Clausen in federal court to get out of its obligation, Clausen brought suit in Washington state court. A jury awarded Clausen and $37,420 for wrongfully withheld maintenance and cure, $453,100 for negligence under the Jones Act, and $387,558.00 in attorney fees and $40,547.57 in costs. In addition, the jury found Icicle’s misconduct warranted $1.3 million in punitive damages. The Washington Supreme Court upheld the award in all respects. Icicle then petitioned the U.S. Supreme Court for review, claiming that the punitive damages were unconstitutionally excessive and should have been limited to a 1:1 ratio with the maintenance and cure compensation of $37,420. The Court’s denial of the petition allowed the full award to stand.

A report on the case can be found at SCOTUS Blog and California Punitive Damages, An Exemplary Blog.

CCL’s Robert Peck spoke to the congressional Civil Justice Caucus about some of the cases raising issues of civil justice in the upcoming Supreme Court term on September 28. The session, held in the Rayburn House Office Building, focused on Kiobel v. Royal Dutch Petroleum, a case involving whether U.S. courts could exercise jurisdiction over human rights abuses that took place in Nigeria against plaintiffs who had now been granted political asylum in the United States, as well as a quartet of class action issues raised in Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, Comcast v. Behrend, Genesis HealthCare Corp. v. Symczyk, and The Standard Fire Insurance Co. v. Knowles. Debating the significance and likely outcomes of the cases with Mr. Peck was Victor Schwartz, a partner at Shook, Hardy & Bacon and general counsel of the American Tort Reform Association.

CCL’s John Vail, at oral argument, urged the Maryland Court of Appealsto abolish the common-law doctrine of contributory negligence and adopt comparative negligence. “The doctrine [of contributory negligence] is not justice. This Court’s failure to act will perpetuate the injustice,” Vail told the Court of Appeals, according to a report in the Maryland Daily Caller. The Maryland Daily Caller described the oral argument as “an extraordinary session that lasted nearly two hours.”

The case is Coleman v. Maryland Soccer Association, No. 9 (Md. 2012).

A trial court in Louisiana has ruled that Louisiana law limiting non-economic damages recoverable in medical malpractice cases violates the Louisiana Constitution. The case is Arrington v. Galen-Med, Inc., No. No. 97-4329, Div-B. CCL’s Valerie M. Nannery assisted with briefing in the trial court, and presented oral argument as well.