New Mexico Court Declares Damage Cap Unconstitutional

March 26th, 2018

     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.

CCL Seeks Discovery Stay in Griffen v. Supreme Court of Arkansas

March 22nd, 2018

     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 Re-Joins RAND Institute for Civil Justice Board

March 17th, 2018

     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.

CCL Files Supplemental Authority in Medical Device Preemption Case

March 12th, 2018

     On March 12, 2018, CCL filed a letter with supplemental authority in the Minnesota Court of Appeals in Jones v. Medtronic, Inc., No. A17-1124. The case, which CCL President Robert S. Peck argued on February 1, involves a Medtronic implanted medical device that failed, killing the 17-year-old young woman whose life literally depended on it. The trial court had found the plaintiff's cause of action expressly and impliedly preempted because the allegations of manufacturing defects and other problems with the device did not point to specific violations of the application for approval submitted to the Food and Drug Administration, as well as because the claims of federal violations were supposedly attempts to enforce FDA requirements, an authority that the FDA holds exclusively. Peck, however, argued that the FDA's citation of Medtronic for numerous violations of federal regulations that were tied to the precise failures that Kaitlyn Jones experienced were sufficient to plead a parallel claim, particularly when Medtronic's application was not available to anyone but the FDA and Medtronic until a court ordered it produced in discovery.

      The March 12 letter advised the Court of a decision of the U.S. Court of Appeals for the Eleventh Circuit, Godelia v. Doe I, 881 F.3d 1309 (11th Cir. 2018), which was rendered after oral argument. In Godelia, the Eleventh Circuit explained a previous decision it had rendered, which the Jones trial court had relied upon to require greater specificity in the complaint. Godelia made clear that, in a case very similar to the Jones case, that specificity is not required. Instead, it issued a decision that tracked the argument Peck made in the Minnesota Court of Appeals.

     The Minnesota Court of Appeals has Jones under advisement.

Brief Opposes Nebraska’s Attempt to Reduce Compensation to a Catastrophically Injured New Born After Already Taking Away 90 Percent of the Jury’s Verdict

March 5th, 2018

     CCL told a federal court that Nebraska had received sufficient compensation to offset its claim of $146,000 for past medical expenses paid on behalf of a catastrophically injured newborn when state law reduced her jury verdict by $15.5 million in a brief filed on the child’s behalf today.

     In S.S. v. Bellevue Medical Center, a child who suffered permanent brain damage in child birth due to substandard medical care won a $17 million verdict to cover a lifetime of care that the child will need. However, a Nebraska law mandated that the verdict be reduced to $1.75 million, a nearly 90 percent discount that will never be able to cover the child’s needs. CCL joined with the Omaha, Nebraska law firm of Cullan and Cullan, which tried the case, to challenge the reduction, but neither the federal district court nor the court of appeals were willing to be the first courts to apply recent Supreme Court precedent to invalidate the cap. The U.S. Supreme Court turned down review of the case.

    As the Supreme Court denied review, the Nebraska Department of Health and Human Services asked the federal district court to validate the State's entitlement of $146,000 of the remaining judgment. CCL opposed the motion on several grounds. Under Nebraska’s law capping damages in medical malpractice cases at $1.75 million, negligent health-care providers are responsible, through their insurance for the first $500,000. All amounts above $500,000 are paid by a state-run Excess Liability Fund. CCL's brief argued that the State itself benefitted from the reduction in the child’s compensation and any amount it might have claimed as a reimbursement for Medicaid expenditures from the lawsuit were more than satisfied by that reduction in the amount the State had to pay S.S.

      Alternatively, if the court were to determine that Nebraska still holds a valid lien against the judgment that was not satisfied when the verdict’s was diminished, CCL argued that, because Medicaid liens are only paid from the amounts allocated intended to compensate for past medical expenses the same proportionate reduction should apply to the lien. After all, the reduction was effectuated as a matter of state law. The same rule CCL described is typically employed when a case settles for less than full value. It should also apply here, reducing the $150,000 claimed lien to $15,000. In addition, any remaining lien should be further reduced proportionately by attorney fees and costs, under the common-fund doctrine. Finally, the CCL brief argues that no lien should be payable until the beneficiary’s death and, then, only to the extent that any monies from the judgment remain.

CCL Files Response to Wells Fargo in Philadelphia Case

March 1st, 2018

CCL filed a brief opposing Wells Fargo's attempt to take an early appeal in Philadelphia's lawsuit against the banking giant over its discriminatory mortgage practices. In the case, in which CCL is part of a team of lawyers representing the CIty of Philadelphia, the U.S. District Court denied Wells Fargo's motion to dismiss, rejecting three different grounds.

First, Wells Fargo claimed that the city's injuries did not meet the directness test the Supreme Court mentioned but left undefined in CCL's victory in Bank of America v. City of Miami last term. Second, it claimed that the city's injuries fell outside the two-year statute of limitations. Finally, it argued that the city's disparate-impact claims were inadequately pleaded. The court found all three arguments to be without merit. 

Rather than proceed with the case in the usual fashion, Wells Fargo moved to have the district court's order certified for interlocutory review under 28 U.S.C. 1292(b). CCL's brief in opposition filed today explained why the order does not qualify for immediate appeal and asked the court to deny permission.

CCL Joins Legal Team Representing City of Sacramento in FHA Lawsuit Against Wells Fargo

February 23rd, 2018

     Today, the City of Sacramento filed a federal action against Wells Fargo for discriminatory lending practices that charged minority borrowers more than non-minorities. CCL joined the legal team representing the city in this action.

     Similar cases in which CCL is a co-counsel are pending on behalf of the cities of Miami, Miami Gardens, Philadelphia, and Oakland.

Ending Johnson & Johnson’s Bid to Avoid Liability, U.S. Supreme Court Denies Certiorari in Children’s Motrin Case

January 19th, 2016

The U.S. Supreme Court today ended pharmaceutical manufacturer Johnson & Johnson’s bid to avoid liability for failing to warn doctors and parents that the appearance of redness, rashes or blisters after taking Children’s Motrin can lead to serious consequences. In 2003, a feverish seven-year-old Sammie Reckis was administered Children’s Mortin by her father. When she received no relief, her pediatrician administered another dose. Sammie was taken to the hospital after blisters began to appear, where yet another dose was given. Blisters soon appeared all over her body, and she was diagnosed with Toxic Epidermal Necrolysis (TEN), a life-threatening skin disorder that is usually fatal. The top layer of her skin began drying and sloughing off in sheets and, to ease her pain, Sammie was placed into a medically induced coma. She suffered heart and liver failure, a stroke, an aneurysm, and a cranial hemorrhage. She is now a tremendously underweight, blind adult. A jury found Johnson & Johnson liable and set compensation for Sammie and her family at $63 million.

Johnson & Johnson, after losing in the Massachusetts Supreme Judicial Court, asked the U.S. Supreme Court to take the case, claiming that the state courts ignored clear evidence that the Food & Drug Administration would have forbidden it from placing a warning about redness, rash and blisters on their label and arguing that the Massachusetts decision conflicted with one from the Chicago-based U.S. Court of Appeals for the Seventh Circuit. In opposition on behalf of the plaintiffs, CCL argued that not only did not clear evidence exist that the FDA would prosecute Johnson & Johnson for providing a warning that would have spared Sammie her nightmare, but that subsequent FDA actions requiring warnings about redness, rashes and blisters on the label supported the plaintiffs. Moreover, the claimed conflict between appellate courts was an imagined one, given that the essential holdings of the two courts were the same.

CCL’s Robert S. Peck served as counsel of record on the Supreme Court brief, where he worked with Michael Bogdanow, Leo Boyle, Brad Henry, and Victoria Santoro of Boston’s Meehan, Boyle, Black & Bogdanow, P.C.

CCL Seeks Invalidation of Florida Law Extending “Sovereign Immunity” to Private University Medical Faculty

January 15th, 2016

In a brief in support of summary judgment filed in a Florida trial court, CCL joined Florida lawyers in seeking invalidation of a Florida statute that extends the state’s immunities from lawsuits to the medical faculty of a private university when practicing medicine at Jackson Memorial Hospital, which is operated by a county agency. The declaratory judgment action argues that the legislature lacked authority to provide sovereign immunity to a private party and that the extension violates a variety of patients’ constitutional rights.

The disputed statute was enacted in 2011 to immunize medical faculty at the University of Miami from malpractice liability when scheduling their patients at Jackson. The immunity does not cover the faculty when they practice at the University of Miami hospital across the street from Jackson. In the immunized cases, a patient injured through malpractice must sue the State of Florida, whose liability is limited by the state tort claims act. Any liability assessed must then be reimbursed by the university.

The plaintiff’s summary judgment brief, filed January 15, argues that the Florida Constitution only authorizes the legislature to waive immunity, not extend it, constitutes impermissible special legislation, and prohibits the state from lending its credit to a private party. In addition, the brief contends that the extension of immunity violates the patient’s access to courts, jury trial, equal protection and due process rights. CCL’s Robert S. Peck represents the plaintiffs, along with Neal A. Roth and Rachel Furst of Grossman Roth, P.A.

Peck Argues Against Motion to Dismiss Miami Gardens Fair Housing Case

January 8th, 2016

In a hearing held in the federal district court in Miami, CCL President Robert S. Peck argued that there were no grounds to dismiss the complaint filed by the City of Miami Gardens, Florida against Wells Fargo Bank over its minority mortgage lending practices. Wells Fargo argued that the 2015 U.S. Supreme Court decision in Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2521 (2015), had imposed a heightened pleading standard in disparate-impact claims brought under the Fair Housing Act. Peck denied that any additional pleading requirements were imposed and pointed out that the Supreme Court had previously chastised the Court of Appeals for the Second Circuit for attempting to impose one. Instead, as the Supreme Court’s decisions consistently hold that the plain and simple pleading required by Rule 8 of the Federal Rules of Civil Procedure govern.