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Leslie A. Brueckner

Leslie A. Brueckner

Senior Attorney
lbrueckner@publicjustice.net

Leslie A. Brueckner is a Senior Attorney at Public Justice, where she specializes in cutting-edge appellate litigation in the state and federal courts.  A 1987 graduate of Harvard Law School, Ms. Brueckner’s current areas of practice include class actions, constitutional law, federal preemption, consumer rights, personal jurisdiction, food safety, and combating court secrecy. She just celebrated her 25th anniversary with Public Justice.

Among other victories, Ms. Brueckner recently won a landmark unanimous ruling from the California Supreme Court in T.H. v. Novartis, holding that brand-name prescription drug manufacturers can be sued for failing to warn of the dangers of mislabeled, generic versions of their drugs.  A majority of the Court also held that even former brand-name manufacturers are subject to suit where their failure to update their labels to warn of their drug’s dangers foreseeably injure consumers of generic drugs. This is the only standing decision of any appellate court granting access to justice to victims of mislabeled generic drugs. She and her co-counsel Ben Siminou were recently awarded the Pound Civil Justice Institute’s 2018 Appellate Advocacy Award for their work on the case.

Ms. Brueckner has also won unanimous preemption rulings from the U.S. Supreme Court in Sprietsma v. Mercury Marine Corp., 537 U.S. 51 (2002) (upholding an injury victim’s right to sue a manufacturer for failing to install a propeller guard on its recreational motor boat engines), and from the California Supreme Court in Quesada v. Herb Thyme Farms, Inc. , 62 Cal. 4th 298 (2015) (upholding consumers’ rights to sue an organic grower for mislabeling its conventionally grown herbs as “organic”).

Following up on her recent California-Supreme-Court win in T.H. v. Novartis, Leslie is currently lead appellate counsel  McNair v. Johnson & Johnson, where the West Virginia Supreme Court of Appeals will decide whether brand-name prescription drug manufacturers can be held liable for injuries caused by generic versions of their drugs. A favorable ruling in the case would restore access to justice to thousands of consumers of mislabeled drugs who currently have no recourse for their injuries.

Leslie is also appellate counsel for the petitioner in Noel v. Thrifty Payless, Inc., before the California Supreme Court, which will decide whether, in a consumer class action, a plaintiff must prove that class members’ identities can be proven based on official records before the class can be certified as “ascertainable.”  The case has important ramifications for the continued viability of class actions in the State of California.

Leslie is also counsel for plaintiffs in a series of lawsuits challenging so-called “ag-gag” laws that seek to criminalize whistleblowing in animal agriculture and elsewhere. Two such laws—Idaho’s and Wyoming’s—have been declared unconstitutional by U.S. Courts of Appeals for the Ninth and Tenth Circuits. Public Justice’s challenge to two other laws – in Iowa and North Carolina, respectively—are pending in the federal trial courts.

Background:

Leslie received her A.B. degree summa cum laude from U.C. Berkeley in 1983, where she was awarded the University Medal for the Most Distinguished Graduating Senior. Leslie is also a 1987 magna cum laude graduate of Harvard Law School. She joined Public Justice (then Trial Lawyers for Public Justice) in 1993.

In 2011, Leslie founded Public Justice’s Food Project, which seeks to hold corporations accountable for the manufacture, distribution and marketing of food and other products that endanger consumers’ safety, health and nutrition.

In 2012, Leslie was honored by the Animal Legal Defense Fund with its “Pro Bono Achievement Award” for her work fighting the unsafe and inhumane treatment of animals in factory farms.

In addition to her litigation work, Leslie has taught appellate advocacy at American University Law School and Georgetown University School of Law.

Notable Appellate Cases:

Lead counsel in Sprietsma v. Mercury Marine (U.S. Supreme Court): Federal preemption appeal on behalf of man whose wife was killed when she was repeatedly struck by an unguarded boat propeller. Brueckner won a unanimous ruling from the U.S. Supreme Court holding that the Federal Boat Safety Act does not preempt petitioner’s state common-law claims against a boat engine manufacturer for failing to install a propeller guard on the engine of a recreational motor boat. Public Justice’s client was Rex Sprietsma, the husband of the woman who was killed by the unguarded propeller.

Co-lead counsel (with Ben Siminou) in T.H. v. Novartis (California Supreme Court):  This appeal to the California Supreme Court yielded a landmark, unanimous ruling that brand-name prescription drug manufacturers can be held liable for injuries caused by mislabeled generic drugs.  A majority of the Court also held that the duty of care extends to former brand-name manufacturers who sold their rights to the brand before the plaintiffs were injured. The case rejected over 100 contrary rulings from the federal appellate and state courts to find that victims of mislabeled generic drugs have the right to a day in court.  Because over 90% of all drugs consumed in America are generic, yet generic-drug manufacturers are immune from suit under federal law, this victory restores access to justice to hundreds of thousands of consumers who would otherwise have no remedy at all for injuries caused by dangerously mislabeled generic drugs.

Lead Counsel in Quesada v. Herb Thyme Inc. (California Supreme Court): Brueckner won a unanimous ruling in this federal preemption appeal upholding the rights of consumers to sue the nation’s largest grower of organic herbs—Herb Thyme—for intentionally mislabeling conventionally grown herbs as “organic” and pocketing the premiums that organic produce commands. In so ruling, the California Supreme Court rejected the California Court of Appeals’ conclusion that the federal Organic Food Production Act (OFPA) preempted the consumers’ claims. The high court held that, in reality, lawsuits like the plaintiffs’ are not preempted because they affirmatively support OFPA’s core goal of enhancing consumer confidence in meaningful organic labels.  This is the first appellate decision in the country affirming the rights of consumer to sue over the mislabeling of organic products.

Co-lead appellate counsel in U.S. Airways v. McCutchen (U.S. Court of Appeals for the Third Circuit and U.S. Supreme Court): ERISA reimbursement case yielding a landmark ruling from the federal appellate court limiting the rights of an ERISA plan to recover medical expenses from an injury victim who obtained compensation from a third party. (In April 2013, the U.S. Supreme Court issued a split decision in the case, affirming in part and reversing in part the decision below.)

Co-lead appellate counsel in CGI v. Rose (U.S. Court of Appeals for the Ninth Circuit): ERISA reimbursement case yielding a unanimous ruling from the U.S. Court of Appeals for Ninth Circuit limiting the rights of an ERISA plan to recover medical expenses from an injury victim who obtained compensation from a third party. (The Ninth Circuit’s decision was later vacated and remanded based on the U.S. Supreme Court’s ruling in U.S. Airways v. McCutchen.)

Counsel for the Center for Food Safety in Animal Legal Defense Fund v. Wasden  (U.S. Court of Appeals for the Ninth Circuit): Challenge to an Idaho “ag-gag” law that criminalized undercover recording in industrial agricultural facilities, including factory farms and slaughterhouses.  The Ninth Circuit struck down provisions of the law that made it a crime to use misrepresentations to gain entry into agricultural facilities and to make undercover recordings of animal cruelty, worker mistreatment, and unsanitary conditions.

Co-counsel for Animal Legal Defense Fund in National Meat Association v. Harris (U.S. Supreme Court): Brueckner assisted in an effort to preserve a California law designed to prevent the abuse of pigs and other livestock who become non-ambulatory on the way to the slaughterhouse. The law was passed in 2008 in response to the Hallmark slaughter plant investigation in Chino, Calif., which exposed horrific abuse of downed dairy cows. The Ninth Circuit upheld the law, holding that California has the authority to ban the slaughter of certain animals where it is contrary to the state’s interest in ensuring the humane treatment of animals and the protecting the food supply. The U.S. Supreme Court heard argument in the case in November 2011; the Court reversed the Ninth Circuit and found that the California statute is preempted by federal law.

Lead counsel in Drelles v. MetLife (U.S. Court of Appeals for the Third Circuit): Brueckner briefed and argued this federal appeal yielding unanimous ruling that consumers who opted all of their claims out of a nationwide class action settlement with Metropolitan Life Insurance Company (MetLife) cannot be barred from fully prosecuting their individual cases against the company. MetLife had sought an injunction preventing the opt-out litigants from taking any discovery or asserting any claims in their individual cases against MetLife relating to illegal nationwide sales practices at issue in the class action settlement.

Lead counsel in Priester v. Ford Motor Company (South Carolina Supreme Court): Federal preemption appeal on behalf of the mother of a young man who died when ejected from a passenger truck during a rollover accident. The lower court ruled that federal law preempts state tort claims that a passenger vehicle was defective because its side windows were made of tempered glass, which shatters on impact, rather than laminated glass, which holds together on impact, thereby minimizing passenger ejection in rollovers. After persuading the U.S. Supreme Court to vacate and remand an adverse decision from the South Carolina Supreme Court, Brueckner briefed and argued the appeal on remand in October of 2011. Unfortunately, the Court ultimately reaffirmed its original decision.

Co-counsel in Aguayo v. U.S. Bank (U.S. Court of Appeals for the Ninth Circuit): Federal preemption appeal holding that federal banking law does not preempt state debt-collection laws.

Co-counsel in Mensing v. Wyeth (U.S. Supreme Court): Federal preemption appeal holding that a plaintiff’s failure-to-warn claims against generic drug companies for injuries caused by metoclopromide are preempted by federal law. Unfortunately, the appeal yielded an adverse ruling from the Supreme Court.

Lead appellate counsel in Novotny v. Sacred Heart Health Services (South Dakota Supreme Court): Federal constitutional challenge to state’s medical peer-review privilege. The lawsuit alleged that two South Dakota Hospitals conspired with a dangerously unethical spine surgeon to commit high-risk, unnecessary surgeries on over 30 patients, leaving many permanently disabled. The suit asked the Court to recognize a “crime-fraud” exception to a statutory medical peer review privilege.

Brueckner has also appeared for amici curiae before the U.S. Supreme Court in a number of cases including: Altria v. Good (light cigarette preemption); Amchem Prods. v. Windsor (class action settlement involving “future” personal injury victims); Bristol-Myers-Squibb v. San Francisco Superior Court; Bruesewitz v. Wyeth (vaccine preemption); Bates v. Dow Agrosciences (pesticide preemption); Campbell-Ewald v. Gomez (whether a class action defendant can moot out class claims by offering to settle individual claims); Dow Chemical Co. v. Stephenson (whether failure of proponent of Agent Orange class action to issue adequate notice to “future” personal-injury victims provides alternative basis for refusing res judicata bar to class action settlement); Shady Grove Orthopedic Associates v. Allstate Ins. Co (whether state legislature can prohibit federal courts from using class-action device for state-law claims); Tyson Foods v. Bouaphakeo (whether, in Rule 23(b)(3) class action, liability and damages may be determined with statistical techniques that presume all class members to be identical to average); Warner-Lambert Co., LLC v. Kent (whether the presumption against preemption may properly be applied in implied-conflict preemption cases); (Williamson v. Mazda (auto safety preemption); Wyeth v. Levine (brand-name prescription drug preemption).