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This Week's Double Feature
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West Virginia Adopts Continuous Treatment Doctrine
By Thomas J. Hurney, Jr.
Jackson Kelly PLLC, Charleston, West Virginia
In Forshey v. Jackson, No. 33834 (November 19, 2008), the Supreme Court of Appeals of West Virginia adopted the continuous medical treatment doctrine. However, when it applied the doctrine, along with the continuing tort doctrine, it found the plaintiff’s complaint failed to state facts supporting either, and therefore held the complaint was barred under the ten year statute of repose for medical negligence claims. The court issued two new syllabus points setting forth the binding precedent of the case: 4. Under the continuous medical treatment doctrine, when a patient is injured due to negligence that occurred during a continuous course of medical treatment, and due to the continuous nature of the treatment is unable to ascertain the precise date of the injury, the statute of limitations will begin to run on the last date of treatment; and 5. In the context of a medical malpractice action, in order to establish a continuing tort theory a plaintiff must show repetitious wrongful conduct. Merely establishing a continuation of the ill effects of an original wrongful act will not suffice.
[FULL STORY]
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The Chilling Effect of Collateral Estoppel: An Investigative Look Back at the Workers' Compensation File May Put the Plaintiff's Toxic Tort Action on Ice
By Craig T. Liljestrand
Hinshaw & Culbertson LLP, Chicago, Illinois
In a pending toxic tort action, it is not surprising to learn that the plaintiff in the civil action also pursued a workers’ compensation claim against his or her employer for the same injuries and condition. The workers’ compensation file can have a treasure trove of helpful documents, information and medical information. Defense counsel unfortunately often fail to obtain, let alone investigate, this information to assist in the tort action. Recently, the Ohio Court of Appeals placed another arrow in defense counsel’s quiver in effectively precluding a plaintiff from proceeding in a civil toxic tort action.
[FULL STORY]
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Legal News
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Supreme Court Decision, January 21, 2009: Fitzgerald V. Barnstable School Committee, No. 07-1125
On January 21, 2009, a unanimous Supreme Court handed a victory to Mayer Brown and its clients in Fitzgerald v. Barnstable School Committee, No. 07-1125, a case argued by Charles Rothfeld in which the Court held that Title IX of the Education Amendments of 1972 does not preclude a § 1983 action alleging unconstitutional gender discrimination in schools. (Source: Mayer Brown LLP’s Supreme Court Docket Report. For more information, see www.appellate.net/docketreports.)
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Supreme Court Decision, January 26, 2009: Crawford v. Metro. Gov't of Nashville and Davidson County, Tenn., No. 06-1595
Title VII of the Civil Rights Act of 1964 prohibits an employer from retaliating against an employee because the employee "has opposed" unlawful workplace race or gender discrimination—commonly known as the "opposition clause"—or because the employee "has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]"—commonly known as the "participation clause." 42 U.S.C. § 2003e-3(a). On January 26, 2009, in Crawford v. Metro Gov't of Nashville and Davidson County, Tenn., No. 06-1595, the Supreme Court held that this protection against retaliation extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during her employer's internal investigation. (Source: Mayer Brown LLP’s Supreme Court Docket Report. For more information, see www.appellate.net/docketreports.)
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Supreme Court Decision, January 26, 2009: Kennedy v. Plan Administrator for DuPont Savings and Investment Plan, No. 07-636
Retirement plans covered by the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., are required to operate in accordance with their governing documents (ERISA § 104(a)(1)(D)). By statute, those governing documents must provide that "benefits * * * under the plan may not be assigned or alienated" (ERISA § 206(d)(1)) except pursuant to a qualified domestic relations order ("QDRO") (ERISA § 206(d)(3)). The Supreme Court granted certiorari in Kennedy v. Plan Administrator for DuPont Savings and Investment Plan, No. 07-610, to decide whether a decedent's designation of his former wife as the beneficiary of an ERISA plan survives a later divorce agreement, not amounting to a QDRO, that purports to divest the former wife of any of the decedent's retirement benefits. In a decision issued today, the Court held that a beneficiary may waive an interest in ERISA benefits, but only if that waiver comports with the plan's governing documents. (Source: Mayer Brown LLP’s Supreme Court Docket Report. For more information, see www.appellate.net/docketreports.)
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U.S. Court of Appeals for Ninth Circuit Ruling — Forum Selection Clauses: What a Difference an "Of" Makes
In a ruling that may be of interest to any company that includes forum-selection clauses in its agreements—especially in agreements with consumers—the U.S. Court of Appeals for the Ninth Circuit recently ruled that a clause selecting the "courts of Virginia" meant the parties agreed to litigate only in Virginia state courts, not its federal courts. Doe 1 v. AOL LLC, No. 15323 (9th Cir. Jan. 16, 2009). Because class actions are unavailable in Virginia state courts, the Ninth Circuit held that the forum-selection clause was ineffective as to consumers who are California residents at the time the complaint was filed and who sue on behalf of a putative class under California's Consumer Legal Remedies Act (CLRA). The Ninth Circuit did not disturb the lower court's ruling that the forum-selection clause could be enforced against a plaintiff from New York. (Source: Mayer Brown News, authors Joseph W. Goodman (jgoodman@mayerbrown.com) and John Nadolenco (jnadolenco@mayerbrown.com).
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DRI News
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Go Blogging!
In addition to being able to search past FTD articles, find press releases and access Amicus briefs prepared by DRI, our newest website, www.forthedefense.org, offers a blog. This week, two DRI members have commented on the impeachment process involving Illinois Governor Rod Blagojevich. To read and comment on these or other blogs, click here.
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Congratulations to the Honorable Robin D. Pittman, who recently won a seat on New Orleans Criminal Court bench. Judge Pittman is a former prosecutor in Orleans Parish and a past associate of Baldwin Haspel Burke & Mayer LLC in New Orleans. She is a former DRI member, having served on the Lawyers’ Professionalism and Ethics Committee and as the program vice chair of the 2009 Damages Seminar presented by DRI’s Trial Tactics Committee.
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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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Sharing Success – A Seminar for Women Lawyers
March 5-6, 2009
Lowes Santa Monica Beach Hotel
Santa Monica, California
Please join the Women in the Courtroom Committee in Santa Monica for this outstanding opportunity to learn, listen and laugh together, as you receive guidance through mentoring and female-dedicated professional development instruction and activities. This seminar addresses the unique challenges women face in the practice of law and offers an alternative model for success based on a woman’s distinctive communication style and personality. The program is both educational and enriching, geared to help you to hone your trial and business development skills. It is also an opportunity to participate in a variety of networking and social activities. To register now, click here or call 312.795.1101 for more information!
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And The Defense Wins!
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DRI member Jeff Pierce of McGlinchey Stafford's Jackson, Mississippi office obtained a summary judgment dismissing client Papa John's USA, Inc. from litigation pending in South Mississippi. Papa John's, as franchisor, was sued along with the local franchisee who owned seven Papa John's restaurants in South Mississippi, and a delivery driver. The delivery driver was involved in an accident that resulted in serious injuries to a third party and exorbitant medical expenses. The plaintiffs sought to expand liability to both the franchisee and franchisor on the basis of vicarious liability using traditional agency law principles. Additionally, plaintiffs' counsel and his seven expert witnesses were prepared to offer proof of compensatory damages in excess of $12 million dollars, in addition to a claim for punitive damages.
[FULL STORY]
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DRI member Robert Bodzin, a partner at Burnham Brown in Oakland, California, teamed with another partner to successfully defend a national trucking company during a weeklong trial in Merced County. The plaintiffs were the four adult children of a woman who was killed in a 2005 trucking accident on I-5 near Los Banos, California. The decedent, the wife of the truck driver, was a passenger in a truck. At trial, Burnham Brown represented the company that employed the truck driver. Through the post-accident investigation and discovery, it was confirmed that the accident was caused when the truck driver, in the course and scope of his employment, lost control of the truck and that the decedent was not at fault for the accident. Liability for this accident was stipulated prior to trial.
[FULL STORY]
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After a seven-day jury trial in the Los Angeles Superior Court, DRI member Alan Jampol of Jampol Zimet Skane & Wilcox LLP of Los Angeles secured a nonsuit of two of three related plaintiffs and a unanimous jury verdict against the third plaintiff in favor of an insurance broker accused of negligence in procuring an insufficient business operations package policy for a cellular phone business. The jury was out only 15 minutes before rendering its verdict. The plaintiffs’ motion for new trial was denied.
[FULL STORY]
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Wayne Morse, Jr. and Judith E. Dolan, partners at Waldrep Stewart & Kendrick, LLC in Birmingham, Alabama, won a summer trial for the estate of Walter F. Johnsey brought by New South Federal Savings Bank and Adrian Gilbert. Ms. Gilbert claimed that Mr. Johnsey wrote her two checks totaling $150,000 a few days before he died. Mr. Johnsey was hospitalized in ICU when the checks were written and died a few days later. Relying primarily on the expert testimony of Mr. Johnsey's treating physicians, attorneys Morse and Dolan demonstrated that Mr. Johnsey lacked the mental capacity, and therefore the legal capacity, to engage in commercial transactions. The proceeds from the checks were interpleaded by New South Federal Savings when the estate disputed the authenticity of the checks.
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DRI members Michael N. Watts and Jonathan S. Masters of Holcomb Dunbar, P.A. in Oxford, Mississippi successfully defended Baptist Memorial Hospital-North Mississippi in a medical malpractice action before the Mississippi Court of Appeals. The plaintiffs claimed that the hospital's treatment caused complications which later resulted in the patient's death. After full briefing and oral arguments, the Court of Appeals unanimously affirmed the trial court's dismissal of the plaintiffs’ claims.
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DRI wants to hear about your latest win! Send a short summary and recent photo of yourself to Barb Lowery by e-mail (blowery@dri.org).
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Legislative Tracking
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Legislative Update — ASBESTOS
Virginia
VA HB 1493: 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.
• 01/22/2009 – Introduced; referred to Committee on Commerce and Labor.
CONSTRUCTION LAW
Michigan
MI SB 35: Architect, engineer and contractor liability.
• A bill to amend sections 5805 and 5839 (MCL 600.5805 and 600.5839), section 5805 as amended by 2002 PA 715 and section 5839 as amended by 1985 PA 188, revising statute of limitations and statute of repose for actions against architects, engineers, and construction contractors.
• 01/27/2009 – Introduced; referred to Committee on the Judiciary.
DRUG AND MEDICAL DEVICE
Michigan
MI SB 19: FDA-approved drugs.
• A bill to amend sections of the Revised Judicature Act of 1961; rescinding limitation of liability for drugs that have been approved by the FDA.
• 01/27/2009 – Introduced.
EMPLOYMENT LAW
Virginia
VA HB 1799: The Fraud and Abuse Whistle Blower Protection Act.
• An Act to establish the Fraud and Abuse Whistle Blower Protection Act to protect whistle blowers from certain adverse employment actions; to prohibit employers from discharging, threatening, or otherwise discriminating or retaliating against a whistle blower; to provide a civil cause of action for the whistle blower; to establish the Fraud and Abuse Whistle Blower Reward Fund; and for related purposes.
• 01/27/2009 – Reported from General Laws Committee with amendments; substitute printed.
GOVERNMENTAL LIABILITY
Hawaii
HI HB 382: State tort liability.
• Requires notification of pending class action against the State to the Governor, President of the Senate, and Speaker of the House at prior to the filing of the lawsuit. Requires service of the lawsuit to the Senate President and House Speaker.
• 01/26/2009 – Introduced; referred to Judiciary and Finance Committees.
INSURANCE LAW
Hawaii
HI SB 1216: Motor vehicle insurance.
• Prohibits the return of unearned premiums after cancellation of a motor vehicle insurance policy unless the insured provides proof of alternate coverage or proof of transfer of title, theft of the vehicle, or inoperability of the vehicle.
• 01/28/2009 – Introduced.
New Hampshire
NH HB 660: Life settlements.
• This bill establishes the Life Settlements Act in New Hampshire. This bill is a request of the insurance department.
• 01/08/2009 – Introduced; referred to Commerce and Consumer Affairs Committees.
MEDICAL LIABILITY AND HEALTH CARE LAW
Hawaii
HI HB 805: Attorneys’ fees.
• An Act to provide that prevailing party in a medical tort case shall be awarded attorneys' fees.
• 01/26/2009 – Introduced.
HI SB 341: Tort reform.
• An Act to revise medical tort reform laws to allow for arbitration of medical services contracts; create a new cap on noneconomic damages for medical torts; allow for introduction of evidence, limit contingency fees; allow for periodic payments for future damages; and for related purposes.
• 01/28/2009 – Introduced; passed first reading; referred to Health, JGO/CPN Committees.
Maryland
MD SB 272: Maryland False Health Claims Act of 2009.
• An Act to prohibit specified actions constituting false claims against a state health plan or a state health program; providing specified penalties for making false claims against a state health plan or a state health program; authorizing the state to file a civil action against a person who makes a false claim against a state health plan or a state health program under specified circumstances; providing for the procedures to be followed in a civil action; providing for specified remedies under a civil action; etc.
• 01/23/2009 – Introduced.
New Hampshire
NH HB 619: Medical records.
• This bill establishes procedures for access to health care information that is in the possession of health care providers and business associates of health care providers.
• 01/08/2009 – Introduced; referred to Health, Human Services and Elderly Affairs Committee.
NURSING HOME LITIGATION
Florida
FL SB 988: Abuse claims.
• An Act to provide that a civil cause of action for the abuse, neglect, or exploitation of a vulnerable adult under provisions relating to adult protective services is precluded if an action for violation of resident rights is brought under provisions relating to nursing homes; provides an exception for a perpetrator; requires a showing of admissible evidence and an evidentiary hearing before a claim for punitive damages can be brought, etc.
• 01/26/2009 – Filed.
MISCELLANEOUS
Colorado
CO HB 1113: Damage limitations for uninsured.
• If an owner or operator of a motor vehicle brings a civil action for damages arising from an accident involving the motor vehicle and the owner or operator does not have complying insurance or a certificate of self-insurance, prohibits the owner or operator from recovering for the first $10,000 for bodily injury and the first $10,000 for property damages.
• 01/13/2009 – Introduced; referred to Judiciary Committee.
New Mexico
NM SB 209: Justifiable force immunity.
• An Act relating to civil actions; providing immunity from civil action for justifiable use of force.
• 01/20/2009 – Introduced; referred to Judiciary and Public Affairs Committees.
New York
NY HB 3271: Anti-trust class actions.
• A bill to authorize a class action lawsuit in anti-trust actions.
• 01/23/2009 – Introduced; referred to Committee on Economic Development.
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Quote of the Week
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The value of an idea lies in the using of it.
—Thomas Alva Edison
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DRI CLE Calendar
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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
Life, Health, Disability and ERISA
April 22-24, 2009
Sheraton New York Hotel & Towers, New York, New York
Employment Law
April 30-May 1, 2009
JW Marriott Orlando, Grande Lakes, Orlando, Florida
Electronic Discovery
May 7-8, 2009
Hilton New York, New York, New York
For all other seminars and webconferences, click here.
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Evidentiary Privileges for Corporate Counsel
Products Liability Defenses—2007
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