Monday, October 25, 2010

Recent 11th Circuit Opinion Regarding Iqbal Decision

Worth reading. You may find the opinion in PDF format here

The District Court dismissed his claims, citing Iqbal, but today the Eleventh Circuit issued a published decision reversing that dismissal. The Eleventh Circuit's decision emphasizes that every complaint must be read "as a whole" and construed in the plaintiff's favor, and that no plaintiff can be required to "prove his case on the pleadings."

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Wednesday, October 20, 2010


An Allstate store in MonctonImage via WikipediaAllstate has agreed to pay New York $1.2 million as part of a $10 million regulatory settlement, New York State Insurance Superintendent James J. Wrynn announced today. The agreement follows an 18-month targeted National Association of Insurance Commissioners (NAIC) multi-state market conduct examination of Allstate’s claims handling practices.

“Allstate has agreed to implement procedures to ensure transparency and fairness for consumers who have bodily injury claims,” Wrynn said. “The new processes ensure that claims will be handled consistently in different regions of the country, and consumers will have the right to get the information they need in order to understand how Allstate evaluates their claims and make sure they are fairly treated.”

The NAIC examination, for which New York was one of the lead states, focused primarily on Allstate’s use of claims handling software, particularly the software program, Colossus.

Colossus is a software program Allstate used to guide its settlement offers for bodily injury claims after automobile accidents. The examination found inconsistencies in Allstate’s management and oversight of the Colossus software program. In particular, the examination found that Allstate had failed to modify or “tune” the software in a uniform and consistent manner across its claims handling regions.

Under the settlement agreement, Allstate agreed to make a number of changes to its claims handling process, including:

  • Providing notice to claimants that the Colossus software program may be used in the adjustment of their bodily injury claims;
  • Enhancing its management oversight of Colossus to ensure that it adheres to established criteria and a uniform methodology in selecting claims to be used to “tune” or modify the software to reflect recently settled claims;
  • Strengthening its internal auditing of Colossus and bodily injury claims handling to ensure adherence to written guidelines and procedures;
  • Consolidating its bodily injury claims handling practices into a single claims handling manual; and
  • Not establishing a policy or rule requiring claims adjusters to settle bodily injury claims solely on the value recommended by Colossus and not providing incentives for claims adjusters to settle claims at or near the value recommended by Colossus.

“It is important to note that we found no systemic underpayment of bodily injury claims,” Wrynn said. “While the issues addressed were serious, Allstate cooperated fully with our examination and is working to correct these deficiencies. Here in New York, we will continue to review the use of claims handling software by property/casualty companies.

“This settlement shows how state insurance regulators work together to protect consumers,” Wrynn said. “The four lead states – Florida, Illinois, Iowa and New York – worked cooperatively to conduct this examination and will keep working with the other 41 states that have signed on to this agreement to ensure it is fully implemented and consumers are properly protected.”

Allstate’s payment will be used to establish a regulatory fund. The fund will be used by the 45 signatory states, to the extent consistent with applicable state laws, to develop and train examiners to review and monitor the property/casualty industry’s use of software technology in adjusting claims.

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Tuesday, October 12, 2010

11th Circuit Medicare Opinion Worth a Read

11th Circuit Court of AppealsImage by Kevandy via Flickr

In this very important decision, Bradley v. Sebelius, the 11th Circuit Court of Appeals approved a probate court’s equitable distribution findings to reduce a Medicare conditional payment obligation. Bradley, one of Charles Burke’s children and the P.R., brought suit against a nursing home for wrongful death as a result of nursing home abuse on behalf of the estate and ten surviving children.

Prior to Mr. Burke’s death, Medicare paid approximately $38k for his medical care in the hospital. The nursing home abuse case was settled for the entire amount of available insurance proceeds, $52, 500. A release was executed on behalf of the estate and the surviving children. Bradley notified Medicare of the settlement along with the procurement costs. Medicare refused to acknowledge that the claim had been settled for less than 100% of value. Medicare took the position it was entitled to the full amount of the medical expenses less procurement costs for a net amount of $22,480. Counsel for Bradley filed an application for the probate court to adjudicate the rights of the estate and rights of the surviving children in regard to the compromised sum received in settlement of the claims. Medicare was put on notice of the probate court proceedings and invited their participation in the proceedings. Medicare did not participate.

The state probate court ordered:

(c) . . . The Court after having heard sworn testimony on the potential value of each child/survivors’ independent claim, and after calling on its own experience in the range of values each child’s claim potentially carried, finds that the values asserted by the Personal Representative’s counsel in this motion are reasonable, and the Court adopts and specifically finds that each of the respective ten (10) survivors’ claims holds a value of at least $250,000.00. The Court notes that Medicare has asserted a claim of lien based upon payments of $38,875.08. Therefore, the Court finds that the total, full value of this case had the total, full value been collectible, was/is $2,538,875.08.

(d) Based upon principles of equity, the Court determines the medical expense recovery in the instant cause is $787.50. The Court has calculated such figure based on such component’s contribution to the total full value, if such value were collectible. The Court has not prioritized the recovery of medical expenses over the recovery on each of the respective survivors’ claims. Further, the Court determines the independent survivors’ claims recovery in the instant cause is $51,712.50. The Court has likewise calculated such figure based on all survivors’ claims contributions to the total, full value. The Court has likewise not prioritized the recovery on each of the respective survivors’ claims over the recovery of medical expenses.

Medicare refused to accept the probate court’s order that they would only recover $787.50. Based upon the Medicare Secondary Payer Manual, MEDICARE argued it didn’t have to recognize the probate court’s order since the order was not a decision on the merits of the controversy. Instead, the decision was an allocation of a settlement, not a judgment on the merits. See MSP Manual (CMS Pub. 100-05) Chapter 7, §50.4.4 (where “[t]he only situation in which Medicare recognizes allocations of liability payments to non-medical losses is when payment is based on a court order on the merits of the case”). Medicare argued that the probate court’s order was advisory in nature or superseded by federal law. Medicare was paid by Bradley under protest and an administrative appeal was pursued. All of Medicare’s administrative remedies were exhausted and Bradley lost at all levels. The case was appealed to federal district court for review of the Medicare administrative decisions.

The district court held that Medicare’s interpretation of the MSP, 42 U.S.C. §1395y(b)(2)(B)(ii)(2006), and its attending regulations, 42 C.F.R. §§ 411.37(c)(1),(c)(2), (c)(3)(2004), was reasonable. In making its decision, the district court relied heavily upon the Medicare Secondary Payer Manual, which does not recognize allocations of liability payments to non-medical losses unless it is an order on the merits of the case. The district court held Medicare was entitled to the entire conditional payment amount, less procurement costs, of $22,480. An appeal of that decision was taken to the 11th Circuit Court of Appeals.

The 11th Circuit examined the interplay between the Florida Wrongful Death Act (“FWDA”) and the MSP federal provisions. Bradley argued that the FWDA controlled. Under the FWDA, in a wrongful death action, survivors of the decedent may recover for lost parental companionship, instruction and guidance and for mental pain and suffering. Damages allowed to an estate are considered separate and distinct from damages recoverable by the decedent’s survivors according to Florida law. It is well accepted under Florida law that proceeds from a wrongful death action aren’t for the benefit of the estate, instead they are property of the survivors and compensation for their loss.

The court found that it was faced with an issue of first impression in this particular case and that was “[w]hose property is the settlement?” The court pointed out that the settlement involved medical expenses and costs recovered by the estate, subject to the MSP statute, along with non-medical, tort property claims of the surviving children for lost parental companionship under state law, not subject to the MSP statute. The Bradley court pointed out that all damages besides the decedent’s medical expenses where a property right belonging to the surviving children. Only the estate’s allocated share of the proceeds was subjected to Medicare’s claims.

The 11th Circuit was troubled by Medicare’s failure to participate in the probate court proceedings. Medicare declined to take part in the proceedings even though its position was adverse to the survivors in the proceedings. The court stated that “[c]ounsel properly turned to the Florida probate court for a proration, filing an application with the probate court to adjudicate the rights of the estate and rights of the children vis-à-vis the rights of the Secretary to the compromised sum received in settlement of the claims.” Yet even after the probate court made the allocation, Medicare asserted it was still entitled to the full amount less procurement costs based upon the MSP manual and refused to respect the decision of the probate court.

The court indicated that the essence of Medicare’s position was that the MSP manual was entitled to deference under Chevron, USA Inc. v. Natural Resource Defense Council, Inc. Under the Chevron Supreme Court decision, agency interpretation of a statute which it administers is entitled to deference. However, the Bradley court pointed out that the Supreme Court has held that “agency interpretations contained in policy statements, manuals, and enforcement guidelines are not entitled to the force of law.” The 11th Circuit concluded that Medicare’s reliance upon the MSP manual and the district court’s approval of such was misplaced.

The Bradley court correctly and aptly pointed out that that counsel for Bradley acted “sensibly” in settling the claim for the full value of all available insurance. If the MSP field manual was followed, it would lead to a “Catch-22” situation. It would force counsel to file a lawsuit inurring additional costs further diminishing the “paltry sum” available for settlement. According to the court, this would fly “in the face of judicial and public policy.” Therefore, the court held that Medicare’s position wasn’t supported by the statutory language of the MSP and its implementing regulations; the MSP manual does not control the law and it was error for the district court to rely “upon the advisory language contained in a field manual as the rationale for its opinion.”

Equally important, the 11th Circuit pointed out a second reason that Medicare’s position, as approved by the district court, was in error. The court reviewed the strong public policy favoring “expeditious resolution of lawsuits through settlement.” According to the Bradley court, Medicare’s position would have a “chilling effect on settlement.” This is so because Medicare’s position compels plaintiffs to force their tort claims to trial, burdening the court system. “It is a financial disincentive to accept otherwise reasonable settlement offers.”

For all of the foregoing reasons, the court held that Medicare was entitled to recover $787.50, as determined by the allocations of the state probate court. The Bradley opinion is a huge victory in the fight against Medicare conditional payment recovery in situations such as this. It is also is tremendously important because in the past the MSP manual has been treated deferentially, but not this time. Finally, it is important because it recognizes equitable distribution in the context of Medicare conditional payments and approves a state court’s allocation of damages in the context of a settlement. It should be a very useful case in fighting Medicare in the conditional payment realm.

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Meridia Recall Diet/Obesity Drug by Abbott Laboratories

Medication used for obesity. Orlistat and sibu...Image via WikipediaAbbott has issued a Meridia Recall after being asked by the FDA to stop marketing the product in the United States due to results of a study indicating an increased risk of heart attack and stroke in Meridia users.

Meridia (sibutramine) is a prescription weight loss drug marketed and sold in the United Stages by Abbott Laboratories, who have removed their Meridia webpage and issued a Meridia recall statement on their website.

According to Abbott, he FDA’s request for Abbott to remove Meridia from the US market is based primarily on the results of the SCOUT (Sibutramine Cardiovascular OUTcome Trial) study. This study researched about 10,000 patient, 6-year study requested by European regulatory authorities as a post-marketing commitment to evaluate cardiovascular safety in high-risk patients. Abbot maintains that most of these patients “had underlying cardiovascular disease and were not eligible to receive sibutramine under the current labeling“.

Patients should stop using Meridia (sibutramine) and consult their physician. Patients can also contact Abbott’s medical information line at: 1-866-257-8909.

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Major banks forced to suspend foreclosures after 'robo-signing' of documents exposed

Sign Of The Times - ForeclosureImage by respres via FlickrGMAC Mortgage, JPMorgan Chase and Bank of America recently announced that they were suspending foreclosures after lawsuits exposed fraudulent practices. Other banks charged with illegalities include Wells Fargo, CitiMortgage, HSBC and National City.

The Washington Post reported Oct. 9 that senior Obama administration officials were saying that "a nationwide moratorium on foreclosure sales may be inevitable, despite their grave reservations about the impact a broad freeze would have on the nation's housing market and economic recovery."

Problems turning up in courts across the country are varied, the New York Times reports, but all involve documents that must be submitted before foreclosures can proceed legally. Here are some of the more common shortcuts that have been exposed:
  • Thousands of documents have been signed by employees, dubbed "robo-signers," who admit they have not verified crucial information like amounts owed by borrowers.
  • Questionable legal notarization of documents has been common, in which, for example, the notarizations predate the actual preparation of documents—indicating that signatures were never actually reviewed by a notary.
  • Other notarizations took place so far from where the documents were signed that it was highly unlikely that the notaries witnessed the signings, as the law requires.
  • On other important documents, an official’s name is signed in radically different ways suggesting that some are forgeries.
Additional problems have emerged, the Times reports, when multiple banks have all argued that they have the right to foreclose on the same property, "a result of a murky trail of documentation and ownership."

This is a developing story that will have a wide and deep immpact
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Wednesday, September 22, 2010

Nursing Home Operator Found Guilty: Federal Indictment Brought for Misuse of Funds

(Old) Floyd County Court HouseImage by jimmywayne via Flickr

A Floyd County, Ga., Superior Court jury recently awarded a verdict in favor of Loretta Terhune on behalf of her father as a result of the poor care her father received during the eight months he was a resident at Moran Lake Road Nursing Home in Rome, Ga.

Terhune sued Forum Medical, the company that owned and operated Moran Lake. Her father, Morris Ellison, was malnourished, dehydrated, denied medical care for a broken hip and ultimately died after what was supposed to be a temporary stay as he received post-operative rehabilitative care. He was otherwise in good health.

The facility’s owner, George Houser, a Harvard-educated attorney and member of the Georgia Bar, represented himself at trial, was held in contempt of court for repeated outbursts and filed an emergency bankruptcy motion in the middle of the proceedings. Judge Bryant Durham presided over the weeklong case that, once brought to the attention of the Federal Government, resulted in an indictment against Houser for corruption and misuse of Medicare/Medicaid funds.

Co-lead counsel for the plaintiff was Mike Prieto of Perrotta, Cahn & Prieto, and Stephen Lowry of Harris Penn Lowry. The team walked the jury through compelling evidence of deplorable conditions, underpaid workers, understaffed and underfunded facilities as well as outright neglect and abuse of the elderly that incensed the jury.

“We were able to prove that Mr. Houser, because of his corruption and greed, systematically drained his nursing facilities of essential funds for patient care, leaving the residents and employees to deal with feces-covered walls, no hot water, no food, no clean linens or adult diapers, no medicine nor proper medical equipment – all while enriching himself by using the nursing home account as his own ‘personal banking account,’” said Stephen Lowry of Harris Penn Lowry.

“This verdict made me very proud to be from Rome,” said Mike Prieto of Perrotta, Cahn & Prieto. “Rome is a medical community that takes great pride in their facilities and the quality of care available to all its citizens. This jury sent a message to George Houser, and to any one else who attempts to get rich by providing substandard care to the elderly, that this type of behavior will not be tolerated in this community or in the State of Georgia.”

After the verdict was read, Houser was handcuffed and escorted by the Sheriff’s Deputy to serve 48 hours in jail as a result of being in contempt of court.

Terhune, who had a very close and loving relationship with her father, said, “This was never about the money. I wanted justice for my daddy and to make sure Mr. Houser didn’t have a chance to do this to someone else. It isn’t right.”

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Monday, September 13, 2010

Also in FL: Lawyers will be responsible for redacting confidential information in court filings

From Florida, a good idea in this age of identity theft:

Rule 2.420 of the Rules of Judicial Administration, must accompany any court filing as of October 1 that includes confidential information. The form lists 19 specific items that should be confidential in court records, from Social Security and bank account numbers to juvenile delinquency records and grand jury records.

It’s part of a major overhaul of the rule, part of which became effective earlier this year and part of which becomes effective on October 1, that changes the way confidential information is handled in court records and by judges.

If you don’t know about the form and the rule changes, you could wind up accidentally putting confidential information about your clients in the public record, where it eventually may be viewed online.

“The new Rule 2.420 information is so important that the Bar felt compelled to quickly respond to the need to disseminate this information Bar-wide,” said Terry Hill, director of the Bar’s Programs Division. “The best way to reach the masses was to utilize CLE delivery technology and make a two-hour program available to all Bar members as a 24/7 Online CLE, an on-demand program at no cost to the Bar member.”

“Every document that you file and everything you say in a filed document is going to have to be reviewed, and it’s going to be the filer’s burden to determine at the outset whether any of the 19 exemptions are applicable,” said Sandy Solomon, who chaired one of the many committees that had input on the rule. “It makes lawyers responsible for everything that gets into the public domain.”

That confidential information form helps the clerk identify confidential matters and ensure they don’t make their way into public records.

But the rule is more complex than just filling out a form. Lawyers who think a filing has information that should be kept confidential, but doesn’t fall within one of the 19 automatic exemptions in the form, must file a separate motion asking a judge to keep that information from the public eye. The rule sets out how to ask for that and what factors the judge must use in granting or denying the motion, plus a time limit for ruling.

Those motions, Solomon noted, have “to be specific enough to address the issue without revealing confidential information.”

Similarly, if the clerk thinks a lawyer has wrongly claimed confidentiality under one of the 19 items in the confidential information form, the lawyer must be notified within five days. The lawyer then has 10 days to file a motion in court seeking to keep the information confidential, or the clerk can automatically make it public.

There are also rules, Solomon said, for notifying nonparties about confidential information requests, and procedures for those nonparties to petition the court, either to keep information confidential or to make it public.

Other parts of the rules, and corresponding sections of the Rules of Appellate Procedure, address handling confidential records on appeal.

It pays to know the rules. Lawyers can be sanctioned if they’re careless and allow confidential information to be made public, or if they ask for something to be kept confidential without a good faith belief that it should be kept under wraps.

“It’s intricate, there’s no question about it, and it deserves attention,” Solomon said. “I’ve circulated the new rule around to all of the lawyers and paralegals in my office, and we’ve conducted meetings to discuss the rules, and all of the lawyers will be required to take the upcoming [Bar] CLE on the rule.”

Marion County Clerk of Court David R. Ellspermann represented clerks as part of the process rewriting Rule 2.420. He said clerks are working hard to make the confidentiality rules work. He noted his office will have the confidential information form online, and some clerks are getting software to help scan filings to identify confidential information.

“This is a major, major change in the process of the judicial system, and it’s one that’s going to create a need for the courts and clerks to work together like they never have before,” Ellspermann said. Not the least of that, he said, will be clerks working with local bars and others to educate lawyers, clerks, and pro se litigants about the rule requirements.

Added Randy Long, who oversees technology issues for the Florida Association of Court Clerks: “We have to have a huge education process and program to be developed to get the word out to the bar and clerks and the citizenry who might be filing pro se.”

Solomon noted that many revisions to the rule have been effective since March, and some other revisions were approved even earlier. Only the section dealing with the 19 specific confidentiality exemptions and related matters go into effect October 1. Yet he said many lawyers and judges remain unaware of such things as the basis on which rulings on confidentiality matters must be made and the time standards for handling motions and rulings.

There were two factors spurring changes to the rule, Solomon said. One was the revelation in news reports that some jurisdictions were keeping secret dockets to protect confidential information, but which resulted in some cases of closing information that should have been in the public domain.

The second impetus is the coming electronic revolution in the courts, which includes electronic recordkeeping and public access, as well as electronic filing.

The complexity and importance of the issue is reflected in the committees that were involved in drafting the rule. Much of the work was done by the Committee on Access to Court Records, which began with earlier recommendations from the Committee on Privacy and Court Records. At various times, the Rules of Judicial Administration, the Criminal Rules Procedure Committee, the Civil Rules Procedure Committee, and the Appellate Rules Procedure Committee worked on the rule, as did the Special Joint Committee on Changes to Rule 2.420 and a special Consolidated Rules Committee, which Solomon chaired.

Besides those groups, comments were filed by various counties, court clerks, the First Amendment Foundation, the Reporters Committee for Freedom of the Press, the Florida Public Defender Association, and the Florida Prosecuting Attorneys Association, among others.

“This stuff is very interesting and very important work,” Solomon said. “The people who work on this are some of the brightest lawyers and judges from around the state.”
Want more information? Ellspermann and Long said lawyers can check with their local clerks, many of whom are preparing educational programs.

The Bar’s CLE will be available on its website,, around the first week in September. Bar members must have a 24/7 Online CLE account — which is available for free — from the Bar to view the seminar. Instructions for getting the account and viewing the CLE are on the site.

Those interested also can check the Supreme Court’s rulings on the subject: In re: Amendments to Florida Rule of Judicial Administration 2.240 – Sealing of Court Records & Dockets, case no. SC06-2136 and In re: Amendments to Florida Rule of Judicial Administration 2.420 and the Florida Rules of Appellate Procedure,

case no. SC07-2050.!OpenDocument
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Florida's New Complex Litigation Rule

Florida Supreme Court BuildingImage by StevenM_61 via Flickr

(a) Complex Litigation Defined. At any time after all defendants have been served, and an appearance has been entered in response to the complaint by each party or a default entered, any party, or the court on its own motion, may move to declare an action complex. However, any party may move to designate an action complex before all defendants have been served subject to a showing to the court why service has not been made on all defendants. The court shall convene a hearing to determine whether the action requires the use of complex litigation procedures and enter an order within 10 days of the conclusion of the hearing.

(1) A “complex action” is one that is likely to involve complicated legal or case management issues and that may require extensive judicial management to expedite the action, keep costs reasonable, or promote judicial efficiency.

(2) In deciding whether an action is complex, the court must consider whether the action is likely to involve:

(A) numerous pretrial motions raising difficult or novel legal issues or legal issues that are inextricably intertwined that will be time-consuming to resolve;

(B) management of a large number of separately represented parties;

(C) coordination with related actions pending in one or more courts in other counties, states, or countries, or in a federal court;

(D) pretrial management of a large number of witnesses or a substantial amount of documentary evidence;

(E) substantial time required to complete the trial;

(F) management at trial of a large number of experts, witnesses, attorneys, or exhibits;

(G) substantial post-judgment judicial supervision; and

(H) any other analytical factors identified by the court or a party that tend to complicate comparable actions and which are likely to arise in the context of the instant action.

(3) If all of the parties, pro se or through counsel, sign and file with the clerk of the court a written stipulation to the fact that an action is complex and identifying the factors in (2)(A) through (2)(H) above that apply, the court shall enter an order designating the action as complex without a hearing.

(b) Initial Case Management Report and Conference. The court shall hold an initial case management conference within 60 days from the date of the order declaring the action complex.

(1) At least 20 days prior to the date of the initial case management conference, attorneys for the parties as well as any parties appearing pro se shall confer and prepare a joint statement, which shall be filed with the clerk of the court no later than 14 days before the conference, outlining a discovery plan and stating:
(A) a brief factual statement of the action, which includes the claims and defenses;

(B) a brief statement on the theory of damages by any party seeking affirmative relief;

(C) the likelihood of settlement;

(D) the likelihood of appearance in the action of additional parties and identification of any non-parties to whom any of the parties will seek to allocate fault;

(E) the proposed limits on the time: (i) to join other parties and to amend the pleadings, (ii) to file and hear motions, (iii) to identify any non-parties whose identity is known, or otherwise describe as specifically as practicable any non-parties whose identity is not known, (iv) to disclose expert witnesses, and (v) to complete discovery;

(F) the names of the attorneys responsible for handling the action;

(G) the necessity for a protective order to facilitate discovery;

(H) proposals for the formulation and simplification of issues, including the elimination of frivolous claims or defenses, and the number and timing of motions for summary judgment or partial summary judgment;

(I) the possibility of obtaining admissions of fact and voluntary exchange of documents and electronically stored information, stipulations regarding authenticity of documents, electronically stored information, and the need for advance rulings from the court on admissibility of evidence;

(J) suggestions on the advisability and timing of referring matters to a magistrate, master, other neutral, or mediation;

(K) a preliminary estimate of the time required for trial;

(L) requested date or dates for conferences before trial, a final pretrial conference, and trial;

(M) a description of pertinent documents and a list of fact witnesses the parties believe to be relevant;

(N) number of experts and fields of expertise; and

(O) any other information that might be helpful to the court in setting further conferences and the trial date.

(2) Lead trial counsel and a client representative shall attend the initial case management conference.
(3) Notwithstanding rule 1.440, at the initial case management conference, the court will set the trial date or dates no sooner than 6 months and no later than 24 months from the date of the conference unless good cause is shown for an earlier or later setting. The trial date or dates shall be on a docket having sufficient time within which to try the action and, when feasible, for a date or dates certain. The trial date shall be set after consultation with counsel and in the presence of all clients or authorized client representatives. The court shall, no later than 2 months prior to the date scheduled for jury selection, arrange for a sufficient number of available jurors. Continuance of the trial of a complex action should rarely be granted and then only upon good cause shown.

(c) The Case Management Order. The case management order shall address each matter set forth under rule 1.200(a) and set the action for a pretrial conference and trial. The case management order also shall specify the following:

(1) Dates by which all parties shall name their expert witnesses and provide the expert information required by rule 1.280(b)(4). If a party has named an expert witness in a field in which any other parties have not identified experts, the other parties may name experts in that field within 30 days thereafter. No additional experts may be named unless good cause is shown.
(2) Not more than 10 days after the date set for naming experts, the parties shall meet and schedule dates for deposition of experts and all other witnesses not yet deposed. At the time of the meeting each party is responsible for having secured three confirmed dates for its expert witnesses. In the event the parties cannot agree on a discovery deposition schedule, the court, upon motion, shall set the schedule. Any party may file the completed discovery deposition schedule agreed upon or entered by the court. Once filed, the deposition dates in the schedule shall not be altered without consent of all parties or upon order of the court. Failure to comply with the discovery schedule may result in sanctions in accordance with rule 1.380.
(3) Dates by which all parties are to complete all other discovery.
(4) The court shall schedule periodic case management conferences and hearings on lengthy motions at reasonable intervals based on the particular needs of the action. The attorneys for the parties as well as any parties appearing pro se shall confer no later than 15 days prior to each case management conference or hearing. They shall notify the court at least 10 days prior to any case management conference or hearing if the parties stipulate that a case management conference or hearing time is unnecessary. Failure to timely notify the court that a case management conference or hearing time is unnecessary may result in sanctions.
(5) The case management order may include a briefing schedule setting forth a time period within which to file briefs or memoranda, responses, and reply briefs or memoranda, prior to the court considering such matters.
(6) A deadline for conducting alternative dispute resolution.

(d) Final Case Management Conference. The court shall schedule a final case management conference not less than 90 days prior to the date the case is set for trial. At least 10 days prior to the final case management conference the parties shall confer to prepare a case status report, which shall be filed with the clerk of the court either prior to or at the time of the final case management conference. The status report shall contain in separately numbered paragraphs:

(1) A list of all pending motions requiring action by the court and the date those motions are set for hearing.

(2) Any change regarding the estimated trial time.

(3) The names of the attorneys who will try the case.

(4) A list of the names and addresses of all non-expert witnesses (including impeachment and rebuttal witnesses) intended to be called at trial. However, impeachment or rebuttal witnesses not identified in the case status report may be allowed to testify if the need for their testimony could not have been reasonably foreseen at the time the case status report was prepared.

(5) A list of all exhibits intended to be offered at trial.

(6) Certification that copies of witness and exhibit lists will be filed with the clerk of the court at least 48 hours prior to the date and time of the final case management conference.

(7) A deadline for the filing of amended lists of witnesses and exhibits, which amendments shall be allowed only upon motion and for good cause shown.

(8) Any other matters which could impact the timely and effective trial of the action.

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FDA Okays Pesticide Poisoning Drug for Children

Logo of the U.S. Food and Drug Administration ...Image via WikipediaThe FDA has approved the injectable nerve agent drug pralidoxime chloride (Protopam Chloride) for use in pediatric patients.

"We know this drug has been widely used for many years to treat poisoning in pediatric patients in emergency situations," said Russell Katz, MD, director of the Division of Neurology Products at the FDA's Center for Drug Evaluation and Research, in a prepared statement. "Improving the drug's label with new dosing information for children will give healthcare professionals better guidance on how to use the drug safely and effectively."

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Many Patients Make ER First Stop for Care

PANORAMA CITY, CA - JANUARY 28:  Dr. Jason Gre...Image by Getty Images via @daylifeOf the 354 million acute care visits patients made to healthcare providers over a three-year period, more than one-quarter took place in emergency rooms, representing a shift from the old days when general practitioners were the main providers of acute care, a study found.

A study was published in Health Affairs, and found that, in part because of office-based practitioners' busy schedules, patients are increasingly going to the hospital for treatment for illnesses such as fever and stomach pain -- ailments which used to be treated in a doctor's office.

And fewer than half of all acute care visits involve the patient's personal physician, wrote the study authors, who were led by Stephen Pitts, MD, associate professor of emergency medicine at Emory University in Atlanta.

"Americans' access to primary care is in decline," the authors concluded.The authors laid out a number of possible reasons for the shift to the emergency room, including office-based primary care doctors not having enough time or space to keep up with patient demand, and fear of litigation driving primary care physicians to refer patients to a hospital.

From the study:

Stomach and abdominal pain, chest pain, and fever topped the list for most common reasons for visiting the emergency department, while cough, sore throat, skin rash, and earache were the most common reasons for visiting a family physician's office.

The study also broke down which types of doctors treated acute care patients and found:

  • 28% of acute care visits were managed by hospital emergency departments
  • 22% were managed family physicians
  • 20% were managed by non-primary care office-based subspecialists
  • 13% were managed by general pediatricians
  • 10% were managed by general internists
  • 7% were managed by hospital outpatient departments

"Apparently, primary care physicians provide much less acute care than in the past," the authors concluded, adding that using emergency rooms for problems a primary care provider could treat is "not desirable from a societal perspective."

"Too often, emergency care is disconnected from patients' ongoing healthcare needs," the authors wrote. "Lack of shared health information promotes duplicative testing, hinders follow-up, and increases the risk of medical errors."

The authors laid out a number of possible reasons for the shift to the emergency room, including office-based primary care doctors not having enough time or space to keep up with patient demand, and fear of litigation driving primary care physicians to refer patients to a hospital.


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Friday, September 10, 2010

Safer Roads because of Less Traffic Deaths

Ralph Nader signing books at Barnes & Noble Un...Image via WikipediaTraffic deaths have plummeted across the United States to levels not seen in more than a half-century, spurred by technology, safety-conscious drivers and tougher enforcement of drunken driving laws.

The Transportation Department said Thursday that traffic deaths fell 9.7 percent in 2009 to 33,808, the lowest number since 1950. In 2008, an estimated 37,423 people died on the highways.

Government and auto safety experts attributed the improvement to more people buckling up, side air bags and anti-rollover technology in more vehicles and a focus in many states on curbing drinking and driving. Economic conditions were also a factor.

Transportation Secretary Ray LaHood called the new data "a landmark achievement for public health and safety" but cautioned that too many people are killed on the road each year. "While we've come a long way," he said, "we have a long distance yet to travel."

Forty-one states, the District of Columbia and Puerto Rico saw reductions in highway fatalities, led by Florida with 422 fewer deaths and Texas, down 405.

The rate of deaths per 100 million miles traveled also dropped to a record low. It fell to 1.13 deaths per 100 million miles in 2009, compared with 1.26 the year before.

Year-to-year declines in highway deaths have occurred in previous economic downturns, when fewer people are out on the road. Traffic deaths decreased in the early 1980s and early 1990s when difficult economic conditions led many drivers to cut back on discretionary travel.

Last year's reduction in fatalities came even as the estimated number of miles traveled by motorists in 2009 increased 0.2 percent over 2008 levels.

Barbara Harsha, executive director for the Governors Highway Safety Association, said the new data was "particularly encouraging given that estimated vehicle miles traveled actually increased slightly in 2009, thus exposing the public to greater risk on our roadways."

LaHood said the weak economy was a contributing factor as many Americans chose not to go out to bars and restaurants after work or on the weekend.

But he said many motorists are more safety conscious behind the wheel. About 85 percent of Americans wear seat belts while benefiting from safety advances found in today's cars and trucks.

Side air bags that protect the head and midsection are becoming standard equipment on many new vehicles. Electronic stability control, which helps motorists avoid rollover crashes, is more common on new cars and trucks, while some luxury models have lane departure warnings and other safety features.

Dave McCurdy, president and CEO of the Alliance of Automobile Manufacturers, which represents General Motors, Toyota, Ford and others, said the improvements were "the payoff from years of manufacturer-driven safety improvements, like antilock brakes and electronic stability control systems" along with efforts by law enforcement to keep the roads safe.

LaHood, a former Illinois congressman, has also sought to crack down on distracted driving, urging states to adopt stringent laws against sending text messages from behind the wheel, as well as other distractions.

The annual highway safety report also found:

—Motorcycle fatalities broke a string of 11 years of annual increases, falling by 16 percent, from 5,312 in 2008 to 4,462 in 2009.

—The number of people injured in motor vehicle crashes fell for a 10th consecutive year. An estimated 2.2 million people were injured in 2009, a 5.5 percent decline from 2.3 million in 2008.

—Alcohol-impaired driving deaths declined 7.4 percent in 2009 to 10,839 deaths, compared with 11,711 in 2008. Alcohol-impaired fatalities fell in 33 states and Puerto Rico.

A comment from a GTLA member on this news:

This is the direct result of two things – first the work of Senator Abraham Ribicoff and Ralph Nader which led to adoption of federal motor vehicle safety standards, and second the work of plaintiffs’ lawyers and courts, who fashioned legal relief for those injured by defective vehicles. Those two things led directly to the adoption by automakers of safety modifications which save lives.

The auto industry (Saab and Volvo excepted) resisted even mentioning safety in their marketing campaigns until ’87 or ’88, when Iacocca of Chrysler broke ranks and started advertising “safety” as a selling point. Adoption of safer technologies accelerated from that point on

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Wednesday, September 8, 2010

Single Father's story of Justice

Another Story of justice from lawyer S. Simmons:

1. My client is the single father of two teenage boys. He had recently gotten primary physical custody of them when he was suddenly hurt. He left college as a young man because he wanted to invest himself in his career delivering for UPS (aka "a major package delivery service".) Many years ago he suffered an on the job injury - a herniated thoracic disc - that took him out of work for several weeks. But he went through a work-hardening form of physical therapy, and got back to work. His supervisor testified that after returning to work he was a top notch employee, and that he made an amazing number of deliveries in a day during peak Christmas times - sometimes 300 per day. Client attributed this to his dedication to "working smart" - using proper body mechanics and safety to avoid getting hurt again. UPS had even made a video using him for training new workers on job safety. Clearly my client loved his job and enjoyed talking about it. He was used to making a good living and being able to provide for his sons. 2 teenage boys can eat a lot. He had a pension and good benefits. The wreck cost him this job. He got back on his feet and worked in real estate immediately, but the volatile market, independent contractor status, total lack of benefits....well no surprise he ended up cashing in his 401K before long just to put food on the table.

2. My client was the victim of a hit and run driver, so at least by the time we got to court, the case really was against Allstate, his own UM carrier. Our client didn't even talk to a lawyer until near his statute of limitations, so after we filed suit we had to dismiss and refile when called to court because we were still getting medical bills together,

and the client was still seeing his doctors. The teenagers who caused the accident spun out and then T-boned our client straight in the driver's side door of his SUV, causing a lot of damage to the car. They were apparently joyriding. The owner of the car settled by paying their 25K policy limits, so assuming the UM carrier could take credit for that 25, we only demanded 25 more from Allstate. There were about 25K of medical bills at that point, though the client was still treating.

Allstate offered, early on 5K. But at trial we acknowledged that there was no way we could prove the owner of the car was driving the car, we consented to a directed verdict as to his liability, so there was then 50K of UM coverage. During trial Allstate offered 25K. By the time we got to trial, some 4 years after the wreck, the client had just shy of 40K in medical bills. We only had one doctor's deposition, with a pain management physician who had treated him fairly recently. He discussed the aggravation of the pre-existing herniated disc, and also the treatment for a new herniation in the neck, and also problems in the low back. He said it was not unusual to have pain from a traumatic back injury that went on for years. This was something that several members of the Gwinnett County jury pool confirmed from personal experience during voir dire.

3. Obviously we filed because Allstate had no intention whatsoever of paying a fair amount to our client. We had 10 years of the client's W-2s and I-9 forms to show his earnings history and capacity. He had earned about 50K in the first half of the year before the wreck in June 2005. So we asked for another 50 K for lost earnings based on the evident logical inference. We also argued loss of earning capacity, and stressed that this is a proper and logical element of the pain and suffering damages, particularly in the case of this hardworking father who had been so devoted to a job that was now out of the question. The supervisor also testified that he was sadly the one who had to tell him that UPS couldn't keep him on the job delivering packages with a new and debilitating back injury.

4. We concluded the trial in two days, including deliberation time of about 2 hours. The good people of Gwinnett County awarded our client 200K in general damages and 327,994.10 in special damages, for a total of just under 528K. We understood from talking to some of the jurors that we had undervalued the loss of the job in their opinion.

For more:

Sara Brown, Esq.
The Law Offices of David W. Hibbert
2302 Brockett Road, Suite C
Tucker, GA 30084-4455