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This Week's Feature
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In ERISA Cases, Who Gets the Last Word on the Evidence in the Administrative Record?
By William A. Chittenden III and Joseph R. Jeffery
Chittenden, Murday, & Novotny LLC, Chicago, Illinois
Every lawyer likes to have the last word. It is not surprising, therefore, that plaintiffs in ERISA benefit-denial cases increasingly assert they are entitled to have the “last word” on the evidence that goes into the administrative record for their benefit claims. According to these plaintiffs, an individual who appeals the denial of a claim for benefits is entitled, before the plan makes its final benefits decision, to review and rebut any new evidence gathered by the plan during the appeal. They argue that any plan failing to afford a claimant the right to rebut that evidence denies the claimant a “full and fair review” of her claim as required by ERISA. Three circuit courts have considered this issue and are split as to whether claimants are entitled to rebut their plans’ medical opinion evidence prior to a final decision on appeal. However, decisions from one of the two circuits that hold a claimant is not entitled to supplement medical opinion evidence also suggest claimants may be entitled to rebut newly obtained factual evidence when it is material to a claimant’s appeal.
[FULL STORY]
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DRI News
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North Central Regional
The North Central Regional Meeting was held January 17-19 at the Bellagio in Las Vegas. Charles H. Cole, the North Central Regional Director, presided over the meeting and R. Matthew Cairns, DRI’s First Vice President, was in attendance. Hosted by Wisconsin, the meeting was attended by representatives from the SLDOs in Illinois, Indiana, South Dakota, Wisconsin and Minnesota. The Canadian Defence Lawyers were also represented by Canadian Regional Director Sandra Corbett, Canadian Defence Lawyers Programme Manager Maureen Huddleston and DRI Canadian State Representative Daniel I. Reisler.
[FULL STORY]
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Northwest and Pacific Region
The Northwest and Pacific Region Meeting was held on January 17-19 at the Hilton Golf & Beach Resort in Cabo San Lucas, Mexico. California was this year’s host to a very successful meeting. The events began on Thursday evening with a welcome reception. Friday and Saturday’s meetings were moderated by Regional Director Robert W. Harrison. DRI’s President-Elect Cary E. Hiltgen gave the DRI update and officers’ report. DRI board members Simeon D. Rapoport and Lori V. Berke were also in attendance. State issues and hot topics were presented by the following DRI State Representatives: Patrick J. Paul, Arizona; Mary B. Pendleton, California; J. Michael Wheiler, Idaho; Lee S. Aronson, Oregon; and Jeffrey G. Frank, Washington.
[FULL STORY]
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On-site Registration Is Always an Option!
Did you decide at the last minute that you want to attend the 2009 Civil Rights Seminar in New Orleans, January 28-30, but think it’s too late? Well, it’s never too late to register on-site! Learn about emerging trends and discuss hot topics with colleagues, such as:
• How to comply fully with e-discovery rules, including litigation hold requirements
• U.S. Supreme Court and qualified immunity updates
• Recent developments in Fourth Amendment, First Amendment retaliation and substantive due process
• Trial tactics in the areas of voir dire and motions in limine
• Understanding and dissecting conspiracy claims under §1983 and §1985(3)
• Assessing damages in land use cases
• Understanding the new EEOC employment testing guidelines
• Ethical issues in handling public sector claims
Click here or visit www.DRI.org for more information!
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Pre-Order Your Copy Today!
Trucking Policyholder’s Duty to Preserve Coverage
DRI is pleased to announce the publication of a new compendium of the law of all 50 states dealing with trucking law disclaimers and the policyholder’s obligations to preserve coverage. A project of the DRI Trucking Law Committee, this publication describes each state’s law and procedure. The chapter authors are experienced lawyers who regularly practice in the fields of trucking law and insurance law.
[FULL STORY]
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And The Defense Wins!
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DRI member Steven J. Forbes of Norchi, Barrett & Forbes, LLC in Cleveland recently obtained a defense verdict in a wrongful death, dram shop case in Cuyahoga County, Ohio (Cleveland), which is the most favorable Ohio venue for plaintiffs. Mr. Forbes successfully represented BadFrogs Bar & Grille, a restaurant and bar owned by three brothers who are all currently serving in the United States military as Navy SEALs. On the morning of July 14, 2006, the plaintiff’s decedent, Ronald Woods, was working as a garbage collector when the fatal accident occurred. At approximately 6:30 a.m., while Mr. Woods was throwing trash from the curbside into the back of his garbage truck, he was struck by a Ford F-150 operated by Elizabeth Oliver. Mr. Woods was pinned between the two trucks and died less than an hour later. He was 57 years old and is survived by his wife, to whom he was married for over 35 years, two children, and several grandchildren.
[FULL STORY]
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DRI member Neville H. Boschert of Watkins Ludlam Winter & Stennis, P.A. in Jackson, Mississippi, recently obtained judgment as a matter of law on behalf of Willis North America Inc. and Willis of Louisiana, Inc. in the U.S. District Court for the Southern of Mississippi in Gulfport. Plaintiff Raimee Marmillion’s homeowner’s policy with American International Insurance Company was cancelled for non-payment of premium in April 2005 and consequently she had no homeowner’s coverage in effect when Hurricane Katrina struck the Mississippi Gulf Coast in August 2005.
[FULL STORY]
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DRI members Stacey F. Vernallis and Dana L. Bacsi of Goehring, Rutter & Boehm in Pittsburgh, Pennsylvania, protected Coca-Cola Enterprises Inc. from a total disability loss in a motor vehicle accident claim. Effective surveillance film convinced the jury that the plaintiff's back injury and surgeries (3 disc fusion) was not caused by the rear-end collision. The original demand was $7 million. After seven days of trial, the jury returned a verdict in favor of the plaintiffs in the amount of $50,000.
[FULL STORY]
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DRI members Jeanne Loftis and Monica Wells of Bullivant Houser Bailey PC in Portland, Oregon successfully defended a joint compound manufacturer in a Spokane, Washington trial from September 10-30, 2008. The plaintiff alleged strict product liability and negligence claims based on asbestos exposure. The 66-year-old male plaintiff alleged exposure to asbestos during five remodeling projects during the 1960s and 1970s, which took 18 to 27 months to complete.
[FULL STORY]
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Two Quintairos, Prieto, Wood & Boyer, P.A. Jacksonville, Florida trial attorneys, Ashley B. Winstead and Charles G. Eichhorn, Jr., obtained a Summary Judgment on behalf of the State of Florida Department of Transportation (FDOT) in a complaint alleging that construction work severely damaged a building. Claims sought included negligence, nuisance, strict liability for abnormally dangerous activities, and excavation causing subsidence during a road-widening project in Jacksonville, Florida. John Moffitt Howell of Howell & O’Neal of Jacksonville successfully represented the other defendant, Superior Construction Co., Inc. of Indiana (Superior), under contract with FDOT.
[FULL STORY]
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DRI members John Owen and Julie Palmer of Harman, Claytor, Corrigan & Wellman in Richmond, Virginia and Raboteau Wilder of Womble, Carlyle, Sandridge & Rice in Charlotte, North Carolina successfully defended Alliance Material Handling Services (lessor and maintenance provider) and Crown Equipment (manufacturer) in a product liability action filed in the U.S. District Court for the Western District of Virginia (Harrisonburg Division) by Ray Reynolds. The plaintiff alleged that a defectively designed and maintained turret side-loader (man lift) collapsed, resulting in significant personal injuries. The plaintiff’s experts (Frederick Heath and John Orlowski) testified that a bearing became lodged in the man lift’s mast, causing it to become stuck in an elevated position. When the plaintiff’s co-employee opened the manual control value (allowing hydraulic fluid to drain from the system), the cab fell 25 feet to the ground.
[FULL STORY]
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Legislative Tracking
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Legislative Update — ASBESTOS
Illinois
IL HB 53: Asbestos evidence.
• An Act to provide that in any case in which the plaintiff makes a claim based upon exposure to asbestos, the following issues are relevant to the determination of liability and damages, the court shall allow the parties to present evidence concerning these issues, and the trier of fact shall determine liability and damages based on these issues, together with any other relevant issues: (1) whether the plaintiff had exposure to any asbestos manufactured by, processed by, or otherwise associated with any entity other than the defendant; (2) whether the plaintiff's exposure to asbestos was to asbestos exclusively manufactured by, processed by, or otherwise associated with the defendant; and (3) whether there is a causal relationship between the plaintiff's alleged injuries and the asbestos manufactured by, processed by, or otherwise associated with the defendant.
• 01/14/2009 – Introduced; referred to Rules Committee.
Indiana
IN SB 469: Limited liability.
• An Act to limit civil liability arising from asbestos claims for certain corporations.
• 01/14/2009 – Introduced; referred to Committee on Corrections, Criminal and Civil Matters.
North Dakota
ND HB 1430: Successor liability.
• An Act to create and enact chapter 32-46 of the North Dakota Century Code, relating to successor corporation asbestos-related liabilities.
• 01/15/2009 – Introduced; referred to the Judiciary.
Virginia
VA HB 1762: Successor liability.
• An Act to limit the cumulative successor asbestos-related liabilities of a corporation to the fair market value of the total gross assets of the transferor determined as of the time of the merger or consolidation, and states that the corporation is not responsible for successor asbestos-related liabilities in excess of this limit, as the limit may be adjusted; and for related purposes.
• 01/08/2009 – Prefiled; referred to Committee on Commerce and Labor.
CLASS ACTIONS
Oregon
OR SB 361: Relating to class actions.
• Provides that class action may be maintained only for members of class who are residents of this state. Provides that order certifying class, or order denying certification of class, is appealable. Requires stay of proceedings in action until final appellate judgment has been entered on appeal.
• 01/19/2009 – Introduced.
GOVERNMENTAL LIABILITY
New York
NY HB 2350: Civil recoveries by prisoners.
• An Act to provides that the proceeds of civil recoveries obtained by prison inmates against state and local governments shall be made available to their victims; sets forth directions for victims and the crime victims board to follow.
• 01/15/2009 – Introduced; referred to Committee on Governmental Operations.
INSURANCE LAW
Mississippi
MS HB 930: Burden of proof.
• An Act to provide that, in any action for damages by the policyholder against an insurer under a homeowner’s policy, the insurer has the burden of proof as to the application of any exclusion in the policy and any exception to or other avoidance of coverage by the insurer; and for related purposes.
• 01/19/2009 – Introduced.
MEDICAL LIABILITY AND HEALTH CARE LAW
Connecticut
CT SB 216: Noneconomic damages.
• An Act to impose a cap of $250,000 for noneconomic damages in medical malpractice lawsuits.
• 01/21/2009 – Introduced; referred to Committee on the Judiciary.
MISCELLANEOUS
Oregon
OR SJR 9: Limitations on noneconomic damages.
• Proposes an amendment to Oregon Constitution to impose limitations on awards of noneconomic damages in civil actions; refers proposed amendment to people for their approval or rejection at next regular general election.
• Introduced.
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Quote of the Week
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Advice is what we ask for when we already know the answer but wish we didn't.
—Erica Jong
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DRI Cares
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Sending Your Submission
Are you or your law firm actively involved in community service or pro bono work? If so, DRI would like to hear about it. Please send a short article (750 words max) describing your involvement to Barb Lowery (blowery@dri.org). Representative submissions will be selected for inclusion in The Voice.
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DRI CLE Calendar
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Civil Rights and Governmental Tort Liability
January 28-30, 2009
The Ritz-Carlton New Orleans, New Orleans, Louisiana
Communicating with Potential Plaintiffs in Class Actions (webconference)
February 3, 2009
Strategies for Success in Drug and Medical Device Litigation (webconference)
February 10, 2009
Attorneys' Fees under ERISA: Recent Developments and Trends (webconference)
February 17, 2009
Sharing Success — A Seminar for Women Lawyers
March 5-6, 2009
Loews Santa Monica Beach Hotel, Santa Monica, California
Medical Liability and Health Care Law
March 11-13, 2009
Walt Disney World Dolphin, Lake Buena Vista, Florida
Damages
March 18-20, 2009
Bellagio, Las Vegas, Nevada
Toxic Torts and Environmental Law
March 19-20, 2009
Arizona Biltmore, Phoenix, Arizona
Insurance Coverage and Claims Institute
April 1-3, 2009
The Westin Michigan Avenue Chicago, Chicago, Illinois
Product Liability Conference
April 15-17, 2009
Hilton San Diego Bayfront, San Diego, California
For all other seminars and webconferences, click here.
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Unfair Insurance Practices: A Compendium of State Law
Trade Secrets and Agreements Not to Compete: A State-by-State Compendium
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