Thursday, August 4, 2011
Tuesday, July 12, 2011
California Supreme Court Holds California Confidentiality of Medical Information Act Is Not Preempted By Federal Fair Credit Reporting Act
Plaintiff Brown and his two children were patients of dentist Reinholds. Dr. Reinholds billed Brown $600 for a crown that Brown claimed he never received. Brown refused to pay the bill, and Reinholds referred the debt to a collection agency (defendant Mortensen).
The story continues: “Over the next two years, Mortensen repeatedly disclosed the contents of Brown's and his children's dental charts to the three major national consumer reporting agencies, Experian, Equifax, and Trans Union. Additionally, Mortensen disclosed to the agencies the Browns' names, Social Security numbers, dates of birth, addresses, telephone numbers, and Brown's and his children's entire dental history with Dr. Reinholds, including alleged dental treatments.”
Brown and his children sued Mortensen for violation of the California Confidentiality of Medical Information Act (Civ.Code, § 56 et seq.), which
prohibits the unauthorized dissemination of individually identifiable medical information and provides for compensatory damages and other remedies. . . . The trial court sustained a demurrer with leave to amend and then, when Brown elected not to amend, dismissed the action.
The Court of Appeal affirmed. While it rejected the trial court's conclusion that Brown's Confidentiality Act claims were impermissibly vague, it accepted Mortensen's alternative argument that the FCRA preempted them. The Court of Appeal opined that all state law claims arising from the furnishing of information to consumer reporting agencies are preempted by the FCRA. . . . Reasoning that Mortensen had acted as a furnisher of credit information when disclosing the Browns' medical information to various credit agencies, the court affirmed dismissal.
The California Supreme Court reversed, holding that the FCRA did not preempt the California cause of action. Brown v. Mortensen, --- P.3d ----, 51 Cal.4th 1052, 2011 WL 2409913.
The Consumer Credit Reporting Reform Act of 1996 amended the FCRA by imposing affirmative duties on entities that furnish information to consumer reporting agencies, and by adding a state-law preemption clause, 15 U.S.C. § 1681t(b)(1)(F): “(b) No requirement or prohibition may be imposed under the laws of any State—[¶] (1) with respect to any subject matter regulated under—[¶] ... [¶] (F) section 1681s–2 of this title, relating to the responsibilities of persons who furnish information to consumer reporting agencies . . . .”
Following four federal district courts, the California Supreme Court held that the preemption of state law was limited to the two specific areas “regulated under . . . section 1681s-2,” which are “what a furnisher must do to ensure the information it provides is accurate (a subject covered in exhaustive detail by the many subparts of § 1681s–2(a)), and what a furnisher must do upon receiving official notice that the accuracy or completeness of its information is in dispute.” It further stated, “Our own inspection of the overall statutory scheme and the pertinent legislative history reveals evidence suggesting Congress never intended in section 1681t(b)(1)(F) to preempt state laws regulating medical privacy and thereby to relieve entities otherwise obligated to maintain confidentiality of the duty to do so when reporting credit information.”
Thus, the claims for damages under the California Confidentiality Act, “having as their gravamen issues neither of accuracy nor of credit dispute resolution, do not involve the same subject matter as section 1681s–2 and are not preempted.”
The article in the online journal amednews.com (American Medical News) says Mortensen is considering petitioning SCOTUS for review.
Tuesday, July 5, 2011
Friday, June 25, 2010
The Washington State Supreme Court decided yesterday to maintain the pleading standard that has long applied in Washington state courts, rebuffing a request to adopt the federal pleading standard that the U.S. Supreme Court embraced in Twombly and Iqbal. The decision is McCurry v. Chevy Chase Bank (No. 81896-7). Here’s an excerpt (footnote and some citations omitted):
Chevy Chase urges this court to reconsider the standard for dismissing a motion under CR 12(b)(6) in light of changes in the United States Supreme Court case law regarding Fed. R. Civ. P. 12(b)(6). Under CR 12(b)(6) a plaintiff states a claim upon which relief can be granted if it is possible that facts could be established to support the allegations in the complaint. See Halvorson v. Dahl, 89 Wn.2d 673, 674, 574 P.2d 1190 (1978) (“On a [CR] 12(b)(6) motion, a challenge to the legal sufficiency of the plaintiff’s allegations must be denied unless no state of facts which plaintiff could prove, consistent with the complaint, would entitle the plaintiff to relief on the claim.”); see also Christensen v. Swedish Hosp., 59 Wn.2d 545, 548, 368 P.2d 897 (1962) (citing Conley v. Gibson, 355 U.S. 41 (1957)).
However the United States Supreme Court has recently revised its dismissal standard under Fed. R. Civ. P. 12(b)(6), permitting dismissal unless the claim is plausibly based upon the factual allegations in the complaint – a more difficult standard to satisfy. See Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Chevy Chase encourages this court to similarly construe CR 12(b)(6). We decline.
The Supreme Court’s plausibility standard is predicated on policy determinations specific to the federal trial courts. The Twombly Court concluded: federal trial courts are incapable of adequately preventing discovery abuses, weak claims cannot be effectively weeded out early in the discovery process, and this makes discovery expensive and encourages defendants to settle “largely groundless” claims. See 550 U.S. at 557-58, 559. Neither party has shown these policy determinations hold sufficiently true in the Washington trial courts to warrant such a drastic change in court procedure.
Nor has either party here addressed countervailing policy considerations. For example, do current discovery expenses justify plaintiffs’ loss of access to that discovery and general access to the courts, particularly in cases where evidence is almost exclusively in the possession of defendants? Could runaway discovery expenses be addressed by better means – perhaps involving more court oversight of the discovery process or a change in the discovery rules?
Although three Justices dissented, they agreed with the majority about the pleading standard. From the dissenting opinion: “My discussion of CR 12(b)(6) should not be confused with the Fed. R. Civ. Pr. 12(b)(6) standard articulated by the United States Supreme Court. See Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). I do not suggest we modify our rule to align with the federal “plausible” standard in our decision today.”
(Hat Tip: Brooke Coleman)
Monday, May 31, 2010
Wednesday, April 14, 2010
Gregory L. Acquaviva (Law Clerk, Unites States Court of Appeals for the Third Circuit) and John D. Castiglione (Latham & Watkins) have posted "Judicial Diversity on State Supreme Courts" on SSRN. It will be published in the Seton Hall Law Review.
The abstract states:
Monday, April 5, 2010
Professor Scott Dodson (William & Mary School of Law) has posted "Federal Pleading and State Presuit Discovery" on SSRN. It will be published in the Lewis & Clark Law Review.
The abstract states:
Friday, February 19, 2010
UPDATED: Texas Supreme Court Justices Sued in Federal Court for Failing to Rule on Class Certification Appeal
Plaintiffs in a Texas state court class action against Southwestern Bell have been waiting years for the Texas Supreme Court to decide whether the trial court's order certifying the class was proper. Southwestern Bell appealed to the Texas Supreme Court in November 2005, and oral argument occurred in March 2007.
As reported here, the plaintiffs have now sued the nine Justices of the Texas Supreme Court in federal court, seeking declaratory relief. Plaintiffs are asking the court to declare that the Texas Supreme Court's delay is depriving them of their rights to due process and judicial access, and that "the Texas Supreme Court is constitutionally bound to make a decision at a meaningful time and in a meaningful manner." The case is Marketing On Hold, Inc. v. Jefferson, No. 10-cv-00104-SS (W.D. Tex.). Docket information is available via Justia and Pacer.
(Hat Tip: Roger Baron)
Update from the "be careful what you wish for" department: The Texas Supreme Court issued its 27-page decision today, reversing the lower court and decertifying the plaintiff class. It concluded that "the putative class representative failed to establish that it adequately represents the class."
(Hat Tip: Alexandra Albright)
Saturday, January 2, 2010
New Hampshire Chief Justice John T. Broderick, Jr. and California Chief Justice Ronald M. George published an OpEd in the New York Times, entitled "A Nation of Do-It-Yourself Lawyers," regarding handling the increasing number of pro se litigants. In addition to increasing access to counsel, the Chief Justices discussed the idea of unbundling legal services and permitting lawyers to engage in "limited scope representation" by representing the client in only part of the case.
"some lawyers have expressed concern that limited legal representation will encourage litigants to dissect their cases in an effort to save money, sacrificing quality representation that the litigant might otherwise be able to afford. We have also heard the argument that by offering too much assistance to self-represented litigants, the courts themselves are undermining the value of lawyers and the legal profession. Apparently, some are concerned that the court system will become so user-friendly that there will be no need for lawyers."
"Litigants who can afford the services of a lawyer will continue to use one until a case or problem is resolved. Lawyers make a difference and clients know that. But for those whose only option is to go it alone, at least some limited, affordable time with a lawyer is a valuable option we should all encourage. In fact, we believe that limited-scope-representation rules will allow lawyers — especially sole practitioners — to service people who might otherwise have never sought legal assistance. We also believe that carefully drafted ethical rules allowing lawyers to handle part of a case give the legal profession an opportunity to help the courts address the ever-growing number of litigants who cross our thresholds."
Wednesday, December 23, 2009
Professor Michael H. LeRoy (University of Illinois College of Law) has posted "Do Partisan Elections of Judges Produce Unequal Justice? When Courts Review Employment Arbitrations" on SSRN in the Working Paper Series.
Sunday, December 6, 2009
David S. Schwartz (University of Wisconsin) has posted The Federal Arbitration Act and the Power of Congress Over State Courts to SSRN.
The Federal Arbitration Act is unconstitutional as it has been applied to the states over the past 20 years. In its 1984 decision in Southland Corp. v. Keating, the Supreme Court held that FAA is substantive law binding on state courts under the Supremacy Clause. The resulting doctrine of FAA preemption has nullified dozens of state contract laws, sewn confusion in the courts, and poised the FAA to become a significant "tort reform" statute. The FAA is thus an important example of a larger recent trend of efforts to impose tort reform, indirectly, by federal regulation of state court procedure.
States' sovereignty over the structure, jurisdiction and procedure of their courts is fundamental to federalism. The Supremacy Clause requires state courts to apply federal substantive law, but the constitution assumes state courts will do so applying their own neutral rules of procedure. While state courts' implementation of federal substantive law may incidentally, in isolated cases, affect state procedural rules, Congressional efforts to impose procedural rules on state courts abridge the states' "residual and inviolable sovereignty" and impermissibly commandeer both state judges and legislatures.
The FAA is procedural regulation, notwithstanding Southland. It governs contracts about procedure and overrides the fundamentally procedural allocation of decisionmaking authority between courts and arbitrators. Looked at through every relevant context in which a substance-procedure distinction has been applied, arbitration enforcement is a procedural matter, and Congress is without power to impose it on the states.
Thursday, November 26, 2009
The New York Times has run an editorial about the importance of state courts, writing that "[t]his vital institution — constitutionally, an independent, co-equal branch of government — has been spiraling into crisis as cash-starved states struggle with huge deficits."
Happy Thanksgiving, dear readers.
Wednesday, November 11, 2009
Monday, November 2, 2009
Last week the Kansas Supreme Court heard oral argument in Miller v. Johnson, a medical malpractice case challenging the constitutionality of a Kansas statute that caps damages for noneconomic loss at $250,000.
(Hat Tip: How Appealing)
Thursday, October 29, 2009
Reuters is reporting: "A Wisconsin judge has ordered PepsiCo Inc to pay $1.26 billion to two men who said it stole their idea to sell purified water after a secretary mislaid a document alerting the world's No. 2 soft drink maker the lawsuit existed."
The case is pending in Jefferson County Circuit Court. Pepsi has moved to vacate the default judgment.
For additional coverage see here.
Monday, October 26, 2009
Adam Candeub and Mae Kuykendall have launched a novel project at Michigan State University, College of Law. E-marriage would allow couples to combine the law of one jurisdiction with the physical location of another. In other words, a same sex couple in California could marry in the location of their choice by using a remote "e" officiant from a state that allows same sex marriage, such as Massachusetts.
Procedure and fed courts professors will recognize many familiar issues including choice of law, internet jurisdiction issues, full faith and credit issues, and the increasingly blurry boundaries of physical territoriality.
California has a new program to fund public interest lawyers to provide free representation to all indigent civil litigants involved in certain types of cases, such as home foreclosures, domestic violence cases, cases alleging predatory lending practices and others. The pilot program, which lasts through 2017, will be paid for by a $10 increase in court fees.
Wednesday, October 21, 2009
Professor Patrick Connors (Albany) has posted Which Party Pays the Costs of Document Disclosure?, 29 Pace L. Rev. 441 (2009) on SSRN. Here's the abstract:
The disclosure of electronically stored information has become an integral part of litigation in the twenty-first century; accordingly, the concomitant costs of document production have significantly increased. CPLR Article 31 does not expressly state which party is responsible for the costs of production incurred in response to a demand for "documents or any things." This article explores the development of a questionable rule cited by several New York State tribunals in allocating the costs of document disclosure, while suggesting that the courts adhere to CPLR Article 31's more flexible approach.
In Lipco Elec. Corp. v. ASG Consulting Corp, the New York Supreme Court concluded that "the party seeking discovery should incur the costs incurred in the production of discovery material." However, this rule limits the inherent flexibility of Article 31, and is neither supported by the text of the CPLR, nor by the case law cited in the opinion. This article respectfully submits that the disclosure process will function more efficiently and fairly without a general rule requiring the party seeking "documents or any things" to bear the costs of production. Parties should be encouraged to discuss disclosure costs as early as possible, and request a protective order from the court if necessary.