Archive for March, 2009

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Supreme Court Denies Philip Morris’s Appeal of Widow’s Award

Tuesday, March 31st, 2009

smokingAccording to the New York Times, Washington Post, and Wall Street Journal the U.S. Supreme Court has left in place an Oregon Supreme Court decision upholding a $79.5 million award to a smoker’s widow against Altria’s Philip Morris. The judgment for Mayola Williams has grown to more than $145 million with interest.

The court’s decision was announced in a one-sentence order; an anticlimactic ending to a a nearly decade old case. Under Oregon law, the award is to be split between the state and Mayola Williams.

And according to the Post, the court’s decision today does not end the dispute over whether damages must be paid by Philip Morris. The cigarette giant is seeking a ruling from an Oregon court to keep the state from collecting punitive damages in this case.

The New York Times article can be found here: Altria

The Washington Post article can be found here: Tobacco

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CDC Report to Congress on Mild Traumatic Brain Injury in the United States

Monday, March 30th, 2009

mtbiThe Centers for Disease Control and Prevention, that formed the Mild Traumatic Brain Injury (MTBI) Work Group, have completed a report to the United States Congress determining appropriate and feasible methods for assessing the incidence and prevalence of MTBI in the United States.

According to the report, mild traumatic brain injury (MTBI) accounts for at least 75 percent of all traumatic brain injuries in the United States. The consequences of MTBI, however, are often not mild.

The report, Mild Traumatic Brain Injury (MTB) in the United States, presents the significant findings and recommendations of the members of the MTBI Work Group.  It describes the public health significance of MTBI and makes recommendations on how to better measure the magnitude of the problem of MTBI in this country.

According to the report, more than 1.5 million people experience a traumatic brain injury (TBI) each year in the United States. As many as 75 percent of these individuals sustain a mild traumatic brain injury—or MTBI. These injuries may cause long-term or permanent impairments and disabilities. Many people with MTBI have difficulty returning to routine, daily activities and may be unable to return to work for many weeks or months. In addition to the human toll of these injuries, MTBI costs the nation nearly $17 billion each year.

Recommended Definitions for Mild Traumatic Brain Injury

The conceptual definition of MTBI is an injury to the head as a result of blunt trauma or acceleration or deceleration forces that result in one or more of the following conditions:

● Any period of observed or self-reported:

◆ Transient confusion, disorientation, or impaired consciousness;

◆ Dysfunction of memory around the time of injury;

◆ Loss of consciousness lasting less than 30 minutes.

● Observed signs of neurological or neuropsychological dysfunction, such as:

◆ Seizures acutely following injury to the head;

◆ Among infants and very young children: irritability, lethargy, or vomiting following head injury;

◆ Symptoms among older children and adults such as headache, dizziness, irritability, fatigue or poor concentration, when identified soon after injury, can be used to support the diagnosis of mild TBI, but cannot be used to make the diagnosis in the absence of loss of consciousness or altered consciousness. Research may provide additional guidance in this area.

Based on this conceptual definition, separate operational definitions of MTBI are recommended for cases identified from interviews and surveys, administrative health care data sets, and patient medical records. These operational definitions are described in detail in the Definitions Subgroup Findings and Recommendations section of the report (pages 15–21 of the report).

Incorporating the recommendations of the CDC’s report into public health policy and public health practice will help us better understand the full impact and the long-term consequences of MTBI.

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Overview and Analysis of The Case Law Involved In Hanif/Nishihama

Friday, March 27th, 2009

imagesAcross California, the defense continues to argue for the application of Hanif/Nishihama outside of the Medi-Cal context.  The defense asserts that the holdings of these two cases serve not only as a means of reducing the plaintiff’s post verdict award but as a way of limiting the evidence of past medical damages to collateral source payments.  Their analysis is flawed at the least and simply ridiculous at most; for the collateral source rule is very much alive.  The defense’s argument would ensure the plaintiff who has insurance receives less than her uninsured counterpart.  Thus, the defendant would benefit from the plaintiff’s prudence.

What follows is a case by case overview of each decision involved in this issue.

First, a few principals should be made clear: (1) the Supreme Court has never addressed Hanif/Nishihama; (2) no appellate court has ever applied Hanif/Nishihama outside of the Medi-Cal context; and, (3) no appellate court has ever supported the admission of anything other than the full charges billed by plaintiff’s medical care providers as evidence of past medical damages.

•    Hanif v. Housing Authority of Yolo County, 200 Cal.App.3d 635 (1988).
Hanif involved a Medi-Cal beneficiary and a public entity defendant and dealt with a specific exception to the collateral source rule for public entities under Government Code § 985.  Though Hanif did not analyze the collateral source issue and no case has held that Hanif applies outside of a Medi-Cal context, it has become synonymous with the principal that an injured plaintiff may not recover more than the actual amount paid or incurred for past medical services.  Hanif at 641.

•    Nishihama v. City and County of San Francisco, 93 Cal. App. 4th 298, 309 (2001).  Nishihama was a public defendant case that dealt with the validity of the Hospital Lien Act.  The court found that the hospital’s lien rights did not extend beyond the amount it agreed to receive from Blue Cross as payment in full for services provided to plaintiff.  As the hospital has been paid that amount, it had no lien rights in the damages awarded to the plaintiff.  The court found that the lower court erred in permitting the jury to award plaintiff an amount in excess of $3,600 for the services provided by the hospital. (Nishihama, 93 Cal.App.4th at 307.)  Quoting Hanif, the court found that Nishihama was entitled to $3,600, because it represented “a sum certain to have been paid or incurred for past medical care and services … . ” (Nishihama, at 306.)  However, like Hanif, the Nishihama court did not discuss the collateral source rule.  And, the court stated specifically,  “There is no reason to assume that the usual rates provided a less accurate indicator of the extent of plaintiff’s injuries than did the specially negotiated rates obtained by Blue Cross.  Indeed, the opposite is more likely to be true” (Nishihama at 308.);

•    Olszewski v. Scripps Health, 30 Cal. 4th 798 (2003).  The court held that a medical care provider’s lien against Medicaid beneficiary’s personal injury claims was invalid, as the statutory basis for the lien was preempted by federal law barring recovery of more than the cost-sharing charges allowed under the state plan.  The court did not address Hanif or grapple at all with the collateral source rule.

•    Parnell v. Adventist Health System/West, 35 Cal.4th 595 (2005).  The court addressed what a hospital could recover under a lien, where, similar to the facts in Nishihama, it treated the plaintiff at a discounted rate. The court ultimately held that the hospital’s payment was limited to the amount it agreed to accept via the plaintiff’s insurance contract. (Parnell, at 609) It could not, therefore, recover the difference between the amount it billed and the amount paid by the plaintiff’s insurance, either from the plaintiff or the tortfeasor. In a footnote, the court stated: “Because our holding relies solely on the absence of a debt underlying the lien, we do not reach, and express no opinion on, the following issues: (1) whether Olszewski and Hanif apply outside the Medicaid context and limit a claimant’s tort recovery for medical expenses to the amount actually paid by the patient notwithstanding the collateral source rule … .” (Parnell, at 611–612, fn. 16)

•    Greer v. Buzgheia, 141 Cal. App. 4th 1150, 1156-57 (2006). In Greer the court held that the defendant had failed to preserve any right to a post verdict hearing by failing to request a verdict form that contained a separate entry for past medical expenses. (Greer, at 1158.)   And as to the evidence of past medical damages and the Hanif/Nishihama decisions, the court was very clear:

Neither case, however, holds that evidence of the reasonable cost of medical care may not be admitted. Indeed, Nishihama suggests just the opposite: Such evidence gives the jury a more complete picture of the extent of a plaintiff’s injuries. Thus, the trial court did not abuse its discretion in allowing evidence of the reasonable cost of plaintiff’s care . . . ” (Greer, at 1156-57);

•    Katiuzhinsky v. Perry, 152 Cal. App. 4th 1288 (2007).  The court distinguished Hanif/Nishihama, holding that it did not apply where the plaintiff’s medical lien was sold to a third party. In that instance, the plaintiff was still entitled to the full amount billed by the medical provider, as long as that amount was legitimately incurred and the plaintiff remained liable for its payment. (Katiuzhinsky, at 1291.)  With regard to evidence of the amounts billed, the court stated, “There was no basis in law to prevent the jurors from receiving evidence of the amounts billed, as they reflected on the nature and extent of plaintiffs’ injuries and were therefore relevant to their assessment of an overall general damage award.” (Katiuzhinsky at 1295-96);

•    Olsen v. Reid, 164 Cal. App. 4th 200 (2008).  The court overruled a trial court that had reduced a plaintiff’s verdict for past medical expenses to the amount actually paid.  The Court of Appeal unanimously held that the evidence was insufficient to support the trial court’s ruling.  And in regards to the defendant’s argument that evidence of past medical damages should be limited, the court squarely reject that stating, “…it was error for the trial court to permit the jury to hear evidence of the full measure of Olsen’s medical damages.” (Olsen, at 204).  Additional analysis of Olsen can be read here in a previous post: Olsen

Full analysis of the Prospect v. Northridge decision can be found in a previous post here: Prospect

Analysis

The basis for courts failure to deal with this issue head-on is obvious; it’s complicated – the outcome is influenced by on a myriad of laws, the status of the defendant, the nature and source of any collateral source payments made on behalf of the plaintiff or governmental entity, and the relationship between the provider and insurer.  It is also obvious, however, that there is no support for the exclusion at trial of the full charges as evidence of past medical damages or the application of Hanif/Nishihama outside of the Medi-Cal context.

Action by the legislature and clarity from the California Supreme Court are desperately needed to avoid a windfall for tortfeasors at the expense of prudent plaintiffs.

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W.R. Grace Executive Warned Company About Asbestos 30 Years Ago

Wednesday, March 25th, 2009

According to Bloomberg News, a former W.R. Grace & Co. executive testified he warned his superiors more than 30 years ago about asbestos contamination in vermiculite from a Montana mine.

W.R. Grace, the bankrupt chemical and construction- materials company based in Columbia, Maryland, and five of its former executives are charged with conspiring to expose Libby residents to asbestos-contaminated vermiculite, hiding the dangers and obstructing a government cleanup.

All the defendants in the case have pleaded not guilty to the charges.

The Bloomberg News article can be read here: Asbestos

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Labor Agency Fails Workers

Wednesday, March 25th, 2009

According to the New York Times, the Government Accountability Office has found that the Labor Department’s Wage and Hour Division mishandled 9 of the 10 cases that were brought by a team of undercover agents posing as aggrieved workers.  A report detailing the Government Accountability Office’s findings is due out today.

The Labor Department is the federal agency charged with enforcing minimum wage, overtime, and other labor laws.  According to the report, the Department is failing in its charge and is “leaving millions of workers vulnerable.”

The Times reports, “In one case, the division failed to investigate a complaint that under-age children in Modesto, Calif., were working during school hours at a meatpacking plant with dangerous machinery.”

The report concludes that low-wage workers are being left with no options and no ability to obtain the back pay and wages owed to them.

In this time of economic uncertainty a strong Labor Department is needed more than ever; for a right without a remedy is no right at all.

The New York Times article can be read here: Labor

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Direct Examination

Tuesday, March 24th, 2009

01-29This post covers the basic elements of direct examination from a plaintiff attorney’s perspective.

One of my early mentors once told me, “…trials are won on Saturdays.”  What he meant was that there is no substitute for thoughtful meticulous preparation before trial.  Thus, spend as much time as possible preparing the examination of your witnesses and your witnesses for examination.

During direct,as the trial lawyer, be a helpful guide, not the star.  The focus should be on the witness and on your case.  Because juries and jurors have inherently short attention spans effective direct examinations mix introductory and transition questions.  Use focused non-leading, open-ended questions.  You goal is to effectively guide the witness and control the pace.

The specific steps and techniques employed in your direct will depend in part on whether you are directing liability witnesses, harm witnesses, or experts.  Experts will be addressed in a different post; therefore, let’s look at witnesses regarding liability and harm and some basic rules for your direct examinations for each.

Rule number one: keep it simple.  Your goal is to advance your case.  If a line of questioning doesn’t get you closer to your goal, you don’t need it.  Organize your questions logically.  A standard outline for a liability or fact witness should follow this pattern:

•    Introduce the witness and her relevance
•    Personal background
•    Scene description
•    Action description
•    Use exhibits and visual aids throughout the examination to highlight and illustrate key points
•    End with a point or summary that you want the jury to remember

Rule number two: your case is always about your client’s harm, even when you are working to prove liability.  Search for opportunities in the witness’ background and perceptions to remind the jury about the harm involved in your case.

Rule number three: use each witness to illustrate your themes.  Do not simply walk through a witness’ background and what they saw or heard but use every opportunity to emphasize your case themes.  For instance, work place safety may be very important at the witness’ jobsite.  If your case involves a work place injury, get the witness to discuss this issue when going through her background.  But do not linger, or you will risk an objection being sustained.

Rule number four: control the pace by moving one fact at a time using present tense.  Move faster to keep up with the action and move slower to emphasize.  Using present tense allows the jurors to experience the event and become more involved in the story.

Special rules for harm witnesses

Harm witnesses play a vital role in a personal injury case because they substantiate, amplify, and provide credibility to the claims of harm alleged by your client.  If they are believable and well received by the jury these witnesses can do things for your case that a $500 an hour expert cannot begin to do.  Great care and thought should go into who will be used as harm witnesses as well as the substance and nature of their testimony.

•    Who should testify

Effective harm witnesses can include spouses, neighbors, coworkers, friends, clergy – anyone able to testify about the before and after picture of your client or the process your client has gone through.  Make every attempt possible to rely on witnesses other than your client as a source of testimony about her harms.  And the first witness called should not be your client or his/her spouse if possible.

•    The substance and nature of their testimony

Remember, what you are trying to do is convey the harms that your client has experienced.  And the best way to convey anything is with a story.  So, work with witnesses before trial to develop examples that illustrate how things are now different for your client, the extent of her disability, and what she has gone through.  The effectiveness of short stories on each aspect of your client’s harm cannot be overstated.  And, just as with a liability witness, use introductory and transition questions – tell the jury what you are about to talk about and where the testimony is going.

There are additional techniques that can be employed depending on the type of case and the specific nature and background of the witness.  However, these basic rules and elements should provide for an effective direct examination.  Good luck!

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Natasha Richardson Update

Thursday, March 19th, 2009

Award winning actress Natasha Richardson died Wednesday at Lenox Hill Hospital in Manhattan. Ms. Richardson had suffered head injuries in a skiing accident on Monday.  She was 45 and lived in Manhattan and in Millbrook, N.Y.

The New York Times Article announcing her death can be found here: Natasha Richardson

It appears that Ms. Richardson was not wearing a helmet and suffered a traumatic brain injury as the result of a seemingly simple fall.  A a resort spokeswoman, Lyne Lortie, is quoted by the New York Times as saying, “It was a normal fall; she didn’t hit anyone or anything . . . She didn’t show any signs of injury.  She was talking and she seemed all right.”

An instructor and a ski patrol member accompanied her off the slopes.  Ms. Richardson complained of a headache a little later in her hotel and was taken by ambulance to a nearby hospital.  On Tuesday, she was flown to Lenox Hill Hospital in New York.

Traumatic brain injuries can be life threatening and occur from simple falls and accidents.  Information regarding these injuries as well as their prevention has been reported on this blog previously.  (TBI Posts )

Our thoughts and prayers are with the friends and family of Ms. Richardson.  And we encourage anyone engaging in skiing, biking, or other recreational activities to take the proper precautions including the use of an appropriate helmet.

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Opening Statement

Wednesday, March 18th, 2009

images-3There is a debate among trial lawyers as to when jurors make up their mind in a particular case.  At one extreme reside those that feel that jurors do not make up their mind until closing argument or the end of the presentation of evidence.  Then there are those that believe that once a jury has been selected the outcome is predictable.

Based upon my experience, by the end of voir dire and opening, some jurors have in fact made their decision in the case (where liability is at issue) and all jurors by that time have decided what the case is about.  In other words, by the time opening is completed the jurors have constructed a belief about the case and what they see and experience throughout the rest of the trial will be used to support this initial belief.

Therefore, just as with voir dire the opening statement is of vital importance to your case.  What follows is a brief overview and outline for a successful opening.  Many if not all of the techniques, structure, and recommendations I have learned and adopted from the writings of David Ball, Ph.D.  Dr. Ball’s book “David Ball on Damages” should be on your bookshelf at the office and in your briefcase when you go to trial.

Local rules will vary from court to court as to what is permissible and what is not permissible during opening – whether the judge allows visual aids or the use of evidence that will be introduced.  These issues as well as all issues appropriate for motions in limine should be resolved well in advance of your opening statement.

Part I of this article deals with the primacy and recency effect and how it impacts your opening, part II outlines the basic structure to a good opening, part III presents some basic points on story telling, and part IV provides some guidelines that should be followed in delivering your opening statement.  As with all aspects of a trial, there are as many ways to present an opening statement as there are trial lawyers.  I have found these techniques helpful, I hope that you will as well.

I.    Primacy and Recency:  “…what was the middle thing again?”
There has been much research and debate on how the order in which information is delivered influences the listener.  Researchers suggest that we are more likely to believe the presentation or message we hear first (primacy) and remember the presentation or message we hear last (recency).  In short, you should begin and end your opening and each section of your opening with your strongest points.

I once tried a case where a fire chief had run a red light colliding with my client.  An eyewitness to the collision had testified in deposition, in interesting and colorful language, that the chief was moving at a high rate of speed when he attempted to blow through the intersection without slowing.  In my opening statement I stood up and led with my right,  “…that guy was moving, he was flying, I mean he was truckin’…Ladies and gentlemen of the jury, those are not my words, that is a quote from an eyewitness who saw this collision and from whom you will hear.”  Those words were the first words the jury heard in the case.

II.    Structure
Opening statement should be structured as follows.

A.    Rules of what happened
Jurors want and need to know the rules of what happened.  The rules are indicated by what the defendant did or didn’t do that caused the harm.  For instance, “A driver has to watch the road, and has to see what a reasonable driver would see.”  The rule is clear and it is also clear that I will eventually present that the defendant broke that rule.  Some rules will be more complicated according to each case.  Nevertheless, every rule should be as clear and concise as possible.  This section should take only a minute or two.

B.    What actually did happened: the story
The story is simply the facts or events leading up to the harm.  However, these events should be told using “story telling” techniques and devices (these are outlined in section III).  The story should focus on what the defendant did or didn’t do that led to the harm.

C.    Harm – the injuries not the consequences
This refers to the immediate harm or injuries and not their consequences.  In other words, explain that Jane hit her head during the collision and suffered a mild traumatic brain injury but not that as a result she can no longer concentrate and has had to quit her job.  The injuries or harm should be explained in detail.  The jury should know very quickly that this case is about the harm and how extensive it is.

D.    Blame or who and why are we suing
Once the jurors know the rules, what happened, and the harm you can explain how the rules were broken.  It is important in this section to illustrate the motivations for why the defendant did what they did or the ease with which the defendant could have prevented the wrongdoing.

E.    Undermine the other side (the evidence that you will present that supports your case on all the contentions)
Do not give your opponent credit for thinking.  In other words, don’t say, “you will hear the defense claim…” Simply address every point in contention with the information that supports your side.  For example, “Before coming here to trial, we investigated what happened, because if the Chief was following the rules as he should, there wouldn’t be a reason to come to court.  And we talked to people who were there and saw what happened.  Three of them will be here to tell you . . .”

F.    Consequences of harm – how the harm has affected your client (this section should be at least 1/3 of your opening)
Explain in detail how the harm or injuries have affected your client.  What was the pain like, what has she had to give up as a result, and what are the consequences of each harm and the results of those consequences on her life – the pain, what she cannot do, the job lost as a result, the financial impact of the lost job, the financial impact of the medical bills, the emotional consequences, the hardship placed on the family all of this must be conveyed to the jury in detail.

G.    Charge the Jury – tell them how they can fix things and ask for damages
Tell the jury what they have to decide.  The jury has to decide liability and how much money your client should receive – so tell them.  “You will decide whether Mr. Defendant caused this collision.  You will decide if Mr. Plaintiff was a cause of this collision.  And you will decide how much money Mr. Plaintiff should receive.”
Explain to jurors how they can fix things.  Give them a job.  Go into detail about what the money is for; why are you asking for damages – the medical bills, the therapy or training needed, additional medical care, the wages that have been lost or lost earning capacity, the life care plan.  Suggest a specific dollar amount that you want the jury to award for each issue and total.  And when you have completed this section, say thank you and sit down.

III.    Story Telling

State the dilemma briefly and pointedly with simplicity and conviction.  Use active voice and present tense. Move the events slowly one fact at a time.  Be selective in where you begin and what you emphasize.  The first events that you tell a jury about must go to the heart of what you are trying to prove and must not help your opponent.  Start and end strong.  Do not hide your weaknesses but place them in the middle.  And be yourself.

IV.    Guidelines
In a personal injury action, one of the major themes of your case must be how the jury can fix, help, and/or make your client whole.  You should use concrete and descriptive language presented enthusiastically and with confidence.  Forgo the use of bullet points or outlines.  Use pictures and visual aids but only when each directly supports your case.  Do not introduce your client or thank the jury (you already did this in voir dire and it distracts from your message).  Do not waste words, topics, or issues.  Be concise.  Every word must be useful, every topic must regard what the case is about, and each issue should be one that the jury must decide.  Go slowly, speak naturally, avoid legalese or jargon, and do not argue or do anything that would call for an objection.

As I stated previously, there are six ways to Sunday on how to present a good opening statement in a jury trial.  And countless pages could be written on each section.  This outline and practice guide should give you a good place to start, however.

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Actress Suffers Traumatic Brain Injury While Skiing

Wednesday, March 18th, 2009

Actress Natasha Richardson is in serious condition as the result of a possible traumatic brain injury that she suffered while skiing.  The CBS News article regarding Ms. Richardson’s condition and accompanying video can be found here:  Richardson TBI

Update: On March 18, 2009 Natasha Richardson was taken off life support.

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Centers for Disease Control and Prevention MTBI and TBI Tool Kit for Prevention

Wednesday, March 18th, 2009

tbi_brain-right_facing

Each year in the United States approximately 1.5 million Americans sustain traumatic brain injuries (TBI), ranging from mild to severe.  The Centers for Disease Control and Prevention (CDC) estimates that every year 50,000 people die from TBIs, 230,000 people are hospitalized due to TBIs and survive, and 80,000 to 90,000 Americans experience onset of long-term disability from TBIs.  Overall, more than 1 million people in the United States are treated in emergency departments for TBIs and an estimated $56 billion is spent in direct and indirect costs as a result of these injuries.

Experts from the CDC’s MTBI Working Group have determined the leading causes of TBI to be motor vehicle crashes, falls, firearm use, and sports/recreational activities.

The CDC has developed recommendations for preventing TBIs, which include these listed below:

•    Wear a seat belt every time you drive or ride in a motor vehicle.
•    Never drive while under the influence of alcohol or drugs.
•    Always buckle your child into a child safety seat, booster seat, or seat belt (depending on the child’s height, weight, and age) in the car.
•    Wear a helmet and make sure your children wear helmets when:
Riding a bike, motorcycle, snow mobile, or all-terrain vehicle;
Playing a contact sport, such as football, ice hockey, or boxing;
Using in-line skates or riding a skateboard;
Batting and running bases in baseball or softball;
Riding a horse; and
Skiing or snowboarding

•    Removing tripping hazards, using non-slip mats in the bathtub and on shower floors, and putting grab bars next to the toilet and in the tub or shower; and
•    Make sure the surface on your child’s playground is made of shock-absorbing material (e.g., hardwood mulch, sand);
•    And keep firearms stored unloaded in a locked cabinet or safe. Store bullets in a separate secure location.

Information regarding TBI prevention and data regarding TBI can be found here: TBI Prevention

The Centers for Disease Control and Prevention’s website can be found here:  CDC

The CDC’s brain injury tool kit page can be found here: TBI tool kit

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