Day on Torts

June 20, 2012

9th Circuit Limits Rights of ERISA Health Insurer

The United States Court of Appeals for the Ninth Circuit has ruled that an employer-based health insurance plan did not have a right to full reimbursement from a personal injury plaintiff who recovered only a fraction of her damages from the wrongdoer.

The case is CGI v. Rose, No. 11-35127 (9th Cir. June 20, 2012).

In denying the insurer’s claim against Rose, the Court held that “parties may not by contract deprive [a court] of its power to act as a court in equity.” In a concurring opinion, Circuit Judge Schroeder observed that it would be “manifestly unfair” to allow the plan to recoup 100% of its medical expenses. Such a result, Judge Shroeder observed, would “leav[e] the beneficiary vastly undercompensated for her actual damages” and “unjustly enrich” the ERISA plan, which had been paid premiums for the expenses it was now seeking to recoup.

June 18, 2012

Defendant’s Attempt to Keep Trial Evidence Secret Rejected by Oregon Supreme Court

by The Law Offices of John Day, P.C.

Those in positions of power and wealth fear one thing more than parting with their precious money: they fear that someone will find out what they did.

Thus, we see repeated requests of courts to hide the the conduct of wrongdoers. Early in a case, these efforts manifests themselves in requests for protective orders to keep documents and deposition testimony private. Later, it results in confidential settlement offers and settlement offers made conditional on destruction of evidence gathered in discovery and permanent gag orders.

But the Boy Scouts of America took it one step further: it attempted to keep confidential information about over 1000 ineligible volunteers that was admitted into evidence at trial. Le me say that again. BSA attempted to keep secret evidence that was admitted at trial in a case where the Boy Scouts were ordered to pay both compensatory and punitive damages.

June 18, 2012

Medicare Issues Proposed Rules on “Future Medicals”

by The Law Offices of John Day, P.C.

The Centers for Medicare & Medicaid Services have issued proposed rules to address the issue of how Medicare beneficiaries will protect Medicare’s interest when future medical care is claimed or the settlement or judgment released (or has the effect of releasing) claims for future medical care.

Here are the proposed regulations issued by CMS. The proposed regulations have 7 different options, the first four of which are available to current and future Medicare beneficiaries. The final three options are available only to current beneficiaries.

June 13, 2012

Kentucky Judge Shares Thoughts About Lawyer Suicide

by The Law Offices of John Day, P.C.

Kentucky Supreme Court Justice Bill Cunningham has authored an article in the News Democrat Leader about lawyers who take their own lives. Called "Broken Hearted Idealists," it does a fine job exposing a problem in our profession and some interesting thoughts about why it happens.

June 13, 2012

Physician Supply Not Impacted By Restrictions on Medical Malpractice Victims Rights

by The Law Offices of John Day, P.C.

Three professors have conducted a study to see if legal restrictions on patient rates have had an impact on the supply of physicians.

The result? The researches found no evidence that the legal changes increased the supply of primary care physicians or specialists.

But then again, they relied on facts.

June 11, 2012

Utah Supreme Court Comes Down Hard On Lawyer Who Violates Order On Motion In Limine

by The Law Offices of John Day, P.C.

The Utah Supreme Court has called-out a lawyer who repeatedly violated court orderson a several motions in limine.

In Barrientos v. Jones, 2012 UT 33 (June 8, 2012), the trial court granted several motions in limine and held that certain alleged conduct or speculation about the conduct of the decedent and others was not admissible at trial because it was either irrelevant or unfairly prejudicial. Notwithstanding these orders, Ms. Heather S. White, an attorney for one of the defendants, repeatedly asked questions regarding the forbidden topics.

The repeated violations of the orders on the motions in limine lead to this statement by the Utah Supreme Court:

June 10, 2012

Plaintiff’s Lawyer in Dog Bite Case Claims Injury is Worth $30,000,000

by The Law Offices of John Day, P.C.

Eric Turkewitz, a plaintiff’s personal injury lawyer in New York, wrote about it first. He told us about a plaintiff’s lawyer in New York who sought $30,000,000 for damages to a child who lost part of his ear lobe after a dog bite.

Eric was upset because this "courtroom bulldog who won’t be leashed" (according to her website) either didn’t know or didn’t care about a 9-year old law that prohibits mentioning the amount sought when filing a lawsuit. These actions, in Eric’s view, make the job of plaintiff’s lawyers who choose to follow the law more difficult. He is right.

Then, Max Kennerly, a plaintiff’s personal injury lawyer in Philadelphia, weighed in. He agreed with Eric, but went on to explain that the $30,000,000 request bore absolutely no relationship to amount of the damages in the case. Once again, I agree.

June 7, 2012

Herpes Verdict Proves Adage May Be True

by The Law Offices of John Day, P.C.

The $900,000 pain and suffering verdict (which equaled the amount sued for) in a case brought by a woman who contracted herpes after consensual sex with a dentist brings to mind one of best legal articles I ever read about obtaining large verdicts.

First, the facts. According to an article in the Los Angles Times, Plaintiff was looking for a long-term relationship and had sex with the Defendant on the fourth date. She insisted that he wear a condom and he removed it without her knowledge or consent. Afterward, he told her (in bed) that he had herpes but that he did not have any lesions at the time. She asked him to leave and she showed signs of herpes eleven days later. She filed a negligence and battery claim against the Defendant.

Oregon Live reports that the defense lawyer said the following in the presence of the jury: "Grow up. Come on. You’re an adult. He’s an adult. They had sex. … The point is she is not some little innocent victim." Defense counsel is also reported to have painted the woman as a money-hungry. "Go for a million — that’s plaintiff’s message. … . God bless America. Go for it. Got some coffee to spill on me?" The jury found 75% fault on Defendant and 25% fault on Plaintiff.

June 5, 2012

“They Left A Sponge In Me!”

by The Law Offices of John Day, P.C.

How often are sponges, towels, pads and other foreign objects left in surgical patients? The Doctor’s Company, a medical malpractice insurer, has shared some information that helps us get an idea of the scope of the problem.

The insurer reports that from 2002 through 2011, there were 3,273 surgical claims closed (not including obstetric cases). Five percent involved retained foreign objects, with half of those being sponges, towels, or pads. That means that this one insurer has defended about 160 foreign object claims during the indicated ten-year period.

The insurer admits that the claims are very difficult, if not impossible, to defend.

May 31, 2012

2012 Legislation of Interest to Tennessee Personal Injury Lawyers – Part 2

by The Law Offices of John Day, P.C.

Tennessee personal injury lawyers know that the Tennessee General Assembly is a far different place than it used to be. The Legislature is determined to change the rules of tort litigation for the benefit of defendants and those who would be defendants.

What follows is a second list of legislation enacted during the 2012 session that has been signed by the Governor and is available on the Tennessee Secretary of State’s website. I previously wrote a post about 2012 legislation of interest to Tennessee personal injury lawyers that was available on May 4.

Public Chapter 884: purports to wipe out the liability of car dealerships for loaning cars to certain customers who have proof of insurance.
Public Chapter 902: addresses when punitive damages may be awarded in Tennessee
Public Chapter 907: prohibits children as passengers on motorcycles unless their legs can reach the foot-pegs.
Public Chapter 913: creates a rebuttable presumption that those who sign insurance policy application have read it and that when premium is paid all policyholders accept coverage as stated in policy or amendments thereto.
Public Chapter 922: sets forth duty of landowners to those who are determined to be "trespassers".
Public Chapter 926: sets up statutory scheme to permit defense counsel in health care liability actions to have ex parte communications with plaintiff’s health care providers.
Public Chapter 998: authorizes clerks of court to set up electronic filing system and charge filing fees.
Public Chapter 1046: sets up a statutory scheme requiring courts to make loser of Rule 12 motions pay opposing party’s fees and costs under certain circumstances.
Public Chapter 1108: requires police officers determine whether physical barriers are present at the scene of an accident.

The increased efforts by the Legislature to codify tort law will mean that tort lawyers will be looking to statutory law to determine whether there are limits imposed on the common law or new defenses. This is a pretty significant change for lawyers – historically, most tort law was common law.