Blog Topic

The Fight to Keep Your Constitutional Right to a Jury Trial
July 21, 2009

A recent opinion from the United States Supreme Court's in Ashcroft v. Iqbal, 556 US ____ (2009) is dramatically changing our legal system and how Courts view the right to your day in court and the right to a jury trial. The opinion even drew criticism from one of the more conservative justices of the United States Supreme Court. Supreme Court Justice Ruth Bader Ginsberg told a group of Federal Judges that the decision in the Iqbal case was both "important and dangerous." "In my view," Justice Ginsburg said, "the court's majority messed up the federal rules" governing civil litigation.

The Iqbal decision is a case that concerned the aftermath of the Sept. 11 attacks. The court ruled that a Muslim man who was swept up on immigration charges and detained could not sue two Bush administration officials for what he said was the terrible abuse he suffered while in detention. In Iqbal, Javaid Iqbal, a Pakistani Muslim who was working as a cable television installer on Long Island, said he was subjected to intrusive searches and vicious beatings after being arrested on identity fraud charges two months after the Sept. 11 attacks.

For more than half a century, it has been well established that in federal cases a plaintiff must file a lawsuit that provides "a short and plain statement of the claim" to put the Defendant on fair notice of the claims and facts involved in the case. The parties would then engage in discovery that would enable the parties to discover the truth behind those facts and claims to see if the case had merit. After the parties engaged in discovery, there are procedures available that enable a Defendant to request the Court to dismiss the case claiming that the case has no merit. The discovery process is very important to parties because we all know that most defendants do not admit that they did something wrong or publicize their negligent conduct when someone is injured. To the contrary, defendants do their best to try to keep information about their improper or illegal activities a secret.

The Iqbal decision now requires plaintiffs to come forward with concrete facts at the outset before they have had an opportunity to investigate the facts thoroughly to even uncover truthful information that has been hidden which would show the defendant is liable to the Plaintiff. As a result of the Iqbal decision, federal judges are being instructed to dismiss lawsuits as implausible. Courts have already begun dismissing lawsuit citing the Iqbal decision that the cases are implausible. One federal judge dismissed a disability discrimination suit. Another federal appeals court dismissed a breach of contract and securities fraud suit. In a federal case that was filed by members of the Duke University lacrosse team that wear falsely accused of raping a woman, and were not only later proven innocent but also resulted in disciplinary action against the prosecutor for his wrongful conduct in prosecuting the defendants, a federal judge has asked for briefing on whether their lawsuit can pass muster under Iqbal. Clearly, this decision is going to radically change the legal landscape for many parties.

As a result of the Iqbal decision, a party can lose the right to a jury trial and his day in court because a judge does not have like the lawsuit even if the party has not been given the chance to prove that his case has merit. This decision puts a lot of power in the hands of one person, and can directly eliminate a fundamental right of all Americans to a trial by jury. Thus, it is not surprising that this change in federal law is considered to be both "important and dangerous" by Justice Ginsberg.

Most legal scholars concede that one of the biggest legal battlegrounds over the past 10 years has been the battle of corporate America to eliminate the constitutional right to a jury trial. More and more, corporations are forcing employees to sign agreements that they will arbitrate all employment disputes. In addition, corporations that enter into contracts with their customers are increasing adding language to those contracts at the suggestion of their attorneys and insurance companies that try to force legal disputes to be arbitrated instead of being tried before a jury because of fears that juries will treat the parties fairly.

Most Americans understand that the right to a jury trial and the right to have your day in court is an important right. It is not only important, but it is a fundamental right that is guaranteed under the Constitution. Under the Federal Constitution, the right to a jury trial is a fundamental right. It was significant enough to the Founding Fathers of our country that the right to a jury trial is mentioned in two of the amendments of the Bill of Rights. Under the Sixth Amendment, the Constitution guarantees all Americans:

• In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Under the Seventh Amendment, the United States Constitution guarantees every American:

• In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

In addition to the protections under Federal law, Texas has also enacted a State Constitution which also provides that "The right of trial by jury shall remain inviolate." In addition, the Texas Constitution acknowledges the necessity of the right to have your day in court which is directly linked to the concept of the right to a jury trial. Specifically, the Texas Constitution provides that "All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law."

Nevertheless, if you turn on your radio or watch some of the political shows on TV, you will no doubt hear the cry that someone should not have the right to file a lawsuit or cries against runaway juries. However, those same pundits rarely talk about surveys from judges that say the idea of a runaway jury is a myth. The United States Department of Justice conducted a study which concluded that the fears of a runaway jury were unjustified. Attached is a copy of a summary of the study. In addition, you can read the Department of Justice study by going to the following link. http://www.ojp.usdoj.gov/bjs/abstract/ttvlc96.htm.

A survey of Texas judges further confirms that the fears of runaway juries and fears that juries award large amounts for damages that are not supported by the evidence is simply not true. Among the findings of the study are:

• More than 83 percent of the Texas district court judges had never observed a single instance of a "runaway" jury verdict on either actual or exemplary damages during the preceding four years.
• More than 85 percent of judges had not, or had in only one instance, granted relief during the past four years due to an excessive award of actual damages. No judge in the entire sampling had granted such relief during the prior four years in more than three cases.
• More than 83 percent of Texas judges had not witnessed a single jury award compensatory damages that were too high.
• 15 percent of Texas trial judges observed that juries do not award punitive damages even when those judges believed such an award was warranted.
• 44 percent of the judges had not personally observed a single frivolous lawsuit in their courtroom during the prior four years.
• 99 percent had observed no more than between 1 percent to 25 percent (the lowest percentage category available) of the cases filed before them as being frivolous.
• 85 percent of the responding judges had not punished a lawyer for violating the courts' rules more than one time during the previous four years.
• More than 86 percent of the responding judges believed there is no need for further legislation addressing frivolous lawsuits.

Please continue to monitor the Montes Herald Law Group, LLP blog for updates on new laws and court rulings that have a direct impact on the citizens of Texas. Montes Herald Law Group, LLP is located in Irving (Las Colinas), Texas. View our website at www.MontesHerald.com and our blog to find out more about our attorneys and the cases we handle.

Attachments:
mythofrunawayjuries.pdf
SurveyofTexasJudges.pdf

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Supreme Court Rules that Judges That Accept Big Campaign Contributions Cannot Hear Cases Involving Those Contributors
June 08, 2009

The Supreme Court ruled Monday in the case of Capterton v Massey Coal Co., Inc. (US. June 8, 2009) that elected judges must step aside from cases when large campaign contributions from interested parties create the appearance of bias. By a 5-4 vote in a case from West Virginia, the court said that a judge who remained involved in a lawsuit filed against the company of the most generous supporter of his election deprived the other side of the constitutional right to a fair trial.

History of the Case:

A trial was held in Virginia in which a jury concluded that Massey drove competing coal supplier Harman Mining Corp. out of business by acquiring the sole buyer of Harman's coal and then sharply reducing purchases. The jury awarded $50 million to Harman and owner Hugh Caperton against Massey. Following the trial, lawyers for the parties filed post-trial motions to keep the case from reaching the Virginia's highest court until 2006. While the case was pending, Massey's company's chairman, Donald Blankenship, had spent $3 million to get Brent Benjamin elected

to the Virginia Court that would eventually hear the case against Massey, and to get incumbent Justice Warren McGraw voted out, who had a record of ruling against corporate defendants, and replace him with Benjamin. In the process, Blankenship spent more than $500,000 in direct support of Benjamin, mostly for television and newspaper advertisements. The Massey executive also donated almost $2.5 million to "And For The Sake Of The Kids," an independent group that worked to defeat McGraw and which aired a series of ads that accused the justice of voting to release a pedophile. Blankenship's campaign contributions in support of Brent Benjamin were significant and represented approximately 60 percent of the $5 million spent on behalf of Brent Benjamin's campaign. Benjamin was elected, and once on the state high court, Justice Benjamin refused to recuse himself from the case despite requests from Harman that Justice Benjamin not be involved in the case. In refusing to disqualify himself, Justice Benjamin said the case against his participation was based on "surmise, conjecture and political rhetoric." Justice Benjamin ruled on the case involving his largest campaign contributor and joined the majority of the Court in ruling on the case which held that the lawsuit filed by Harman against Massey was precluded by an earlier case in that state. In other words, Justice Benjamin ruled that the entire jury award of $50 million verdict against his largest campaign supporter should be thrown out.

The Supreme Court disagreed with Justice Benjamin. Supreme Court Justice Anthony Kennedy writing for the majority of the Court and without ruling on whether the evidence showed actual bias in the ruling stated, ''Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when -- without the consent of the other parties -- a man chooses the judge in his own cause.'' Justice Stevens added, "We have never confronted a case as extreme as this before.'' Acknowledging that these cases are going to be fact-specific and that the Court was not drawing a bright-clear line about when a campaign contribution will require a judge to recuse himself or herself from a case, Justice Stevens said, invoking former colleague Potter Stewart's line about pornography. "This fits the standard that Potter Stewart articulated when he said 'I know it when I see it.''' In this case, several factors combined to create an "overwhelming probability'' that Benjamin would not be impartial, including the size of the campaign support and the fact that it represented more than half the money spent on his behalf. The money mostly went to an independent group that ran television ads against Benjamin's opponent.

The Court recognized that this opinion may have widespread significance particularly since judicial elections, especially at the highest levels, tend to be multimillion-dollar campaigns. A non-profit organization, Justice at Stake, which tracks campaign spending in judicial elections, says judges are elected in 39 states and that candidates for the highest state courts have raised more than $168 million since 2000. . ''Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge's recusal, but this is an exceptional case,'' Kennedy said. "There was here a serious, objective risk of actual bias that required Justice Benjamin's recusal," Justice Anthony Kennedy.

The judge himself wrote a long opinion explaining his decision to take part in the case.

Kennedy said, ''We do not question his subjective findings of impartiality and propriety. Nor do we determine whether there was actual bias.'' But, Kennedy said, the $3 million Blankenship spent to unseat the incumbent justice who was seeking re-election and replace him with Benjamin ''had a significant and disproportionate influence in placing Justice Benjamin on the case.'' The dissenters said the court's inability or unwillingness to lay out clear rules for when judges must step aside will provoke endless lawsuits aimed at forcing judges off cases. Lawyers for Harman took the position that The Constitution's right to a fair trial, includes "a guarantee against even the probability of an unfair tribunal.''

Not surprisingly, the case split the court along ideological lines, with Kennedy joining the court's liberal wing of John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer and David Souter. Meanwhile, Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito dissented. It is not a surprise to see that Justice Scalia was among the dissenters considering that Justice Scalia wrote at length five years ago to explain why he would not recuse himself from a case involving then-Vice President Dick Cheney with whom he had previously gone duck hunting. "My recusal is required if ... my impartiality might reasonably be questioned.' Scalia didnot believe that the Constitution's right to a fair trial was invoked and that the Court was being asked to adopt a new standard of "probability of a bias."

This decision will force all judges to consider whether it is appropriate for them to hear a case if a party or an attorney involved in the case is a campaign contributor. Both federal and state judges are bound by ethical rules that allow them to recuse themselves from any case they believe is appropriate and by rules that permit parties to force judges to be recused if there is a financial conflict. For example, judges cannot hear a case involving a company in which they own shares.

Although this decision may not have not produced a bright-clear line of when a judge's fairness is in question such that the judge must recuse him or herself from a case, the decision is one that promotes fairness and justice in our legal system for all, and not just big businesses who set aside large sums of money to support judicial campaigns. This decision will have very interesting implications in Texas where over the past several years justices on the Texas Supreme Court have not recused themselves on cases involving major campaign contributors and where the Court's rulings favored those campaign contributors. 

Please continue to monitor the Montes Herald Law Group, LLP blog for updates on new laws and court rulings that have a direct impact on the citizens of Texas.  A copy of the Court's opinion is attached to this post.

Attachments:
Capertonv.MasseyCoalCoInc.pdf

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Supreme Court Declares Drug Manufacturers Are Not Immune From State Lawsuits
May 26, 2009

Imagine that you or your loved one takes prescription medication that you later find out is responsible for the devastating side effects you have been suffering from, and that the manufacturer knew about but failed to disclose not only to you, but to your doctors, and possibly even the FDA during the course of trying to get approval for the drug.

Consider the case of Diane Levine. In April of 2000, Diana Levine went to a clinic for treatment of a severe migraine headache and associated nausea. She was originally treated with intramuscular injections of Demerol (for headache) and Wyeth's drug, Phenergan (for nausea). Intramuscular injection was the preferred method for administering Phenergan identified in the product's labeling. Following Levine's treatment, she developed the symptoms of arterial exposure and gangrene, and was forced to undergo amputation of her forearm. Levine sued Wyeth (the drug manufacturer) in state court in Vermont, pleading state law claims for inadequate warning, and argued that Wyeth should have warned of the contraindicated intravenous injection of Phenergan on the drug's label, and should have forbid that method of administration. Wyeth argued that the FDA was aware of this issue, but never required such a contraindication warning, and that Wyeth used only the language the FDA had approved. Thus, the issue is not whether the drug manufacturer was aware of this potential risk and complication, but whether it should warn about that risk or simply warn of those matters required to be disclosed by the FDA.

The Supreme Court has in the Wyeth v. Levine case that drug manufacturers are not necessarily entitled to this protection of pre-emption. The Court stated:

State tort suits uncover unknown drug hazards and pro-vide incentives for drug manufacturers to disclose safety risks promptly. They also serve a distinct compensatory function that may motivate injured persons to come for-ward with information.

Wyeth has not persuaded us that failure-to-warn claims like Levine's obstruct the federal regulation of drug labeling. Congress has repeatedly declined to pre-empt state law, and the FDA's recently adopted position that state tort suits interfere with its statutory mandate is entitled to no weight. Although we recognize that some state-law claims might well frustrate the achievement of congressional objectives, this is not such a case.

We conclude that it is not impossible for Wyeth to comply with its state and federal law obligations and that Levine's common-law claims do not stand as an obstacle to the accomplishment of Congress' purposes in the FDCA. Accordingly, the judgment of the Vermont Supreme Court is affirmed.

For years, the FDA took the approach that lawsuits against these drug manufacturers were extremely helpful in discovering and encouraging drug manufacturers to remove dangerous drugs from the market, and that these lawsuits were helpful to the FDA in carrying out its mission in protecting the public. At Montes Herald Law Group, L.L.P., we believe drug manufacturers should be held accountable for the products they design, and distribute and for the warnings that need to be given for their product so that doctors and patients can make informed medical decisions about whether or not to prescribe or to take a drug. Over the past few years, drug manufacturers have been increasingly claiming that if the FDA approves a drug, that the manufacturer of the drug cannot be sued in state courts because of a legal concept known as "pre-emption." In short, these drug manufacturers claim that federal law exclusively governs their practice, and therefore they should only have to meet minimum federal standards and should not be held accountable under state law for the harm their drugs do to people even if knew about the side effect and failed to warn of those dangers. At Montes Herald Law Group, L.L.P., we believe that the FDA was correct that these lawsuits against these giant drug manufacturers are beneficial not only to compensate individuals for the injuries they have sustained, but that these lawsuits also serve an important role in our society to ensure that manufacturers are held accountable to develop and to distribute safe products.

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