Recently, the U.S. District Court for the Western District of Louisiana issued the Benoit v. Neustrom opinion. 2013 U.S. Dist. LEXIS 55971 (decided April 17, 2013). Here, the parties sought approval that CMS' future interest could be fully satisfied by funding an MSA for less than full value of the Claimant's future medicals. The parties agreed to resolve a liability claim for a gross amount of $100,000. Defendant had an MSA allocation prepared, which concluded that the Claimant would be expected to incur between $277,758.62 to $333,267.02 in future injury-related care otherwise covered by Medicare. Additionally, Medicare had made conditional payments on the Claimant’s behalf totaling $2,777.88. 

On March 27, 2013, a jury in federal district court in Bridgeport, Connecticut awarded Cara Munn, a 20-year-old woman who formerly attended the Hotchkiss School  in Lakeville, Connecticut, $41,750,000 in a case styled Orson D. Munn III et al. v. The Hotchkiss School, No. 3:09cv0919 (SRU).  The case raises important issues concerning "duty" and "assumption of risk."

The growing industry of litigation funding will be expanding further very soon.  Reuters reported last week that well known former federal prosecutor Andrew Stolper of Santa Ana, California, will open a litigation financing firm.  The new company will be based in Irvine, California and will specialize in funding plaintiffs in commercial litigation cases.  Firms like Stolper’s loan money to plaintiffs in exchange for a percentage of any recovery.  The loans typically do not have to be repaid if the plaintiff does not recover.  

On March 11, 2013, the National Football League and the General Electric Co. announced that they are teaming up to create a Head Health Initiative that will provide $60 million dollars to assist leading neurologists in researching traumatic brain injuries and developing technology able to monitor these ailments.  $40 million will go towards developing imaging technologies, and the remaining $20 million will be available to others who seek to prevent, identify, and develop treatments for brain injuries.  Athletic apparel company Under Armour will also be providing $5 million dollars in support for the cause.

Jeff Immelt, GE Chairman and CEO, indicated that scientific support for the research would be top-notch.  “We’re trying to do this with the best minds anywhere in the world,” he noted in a news conference.  He declared that the funds would utilize GE’s expertise in sophisticated diagnostic imaging technology to increase general scientific knowledge on brain functions, noting “With this initiative, we will advance our research and apply our learning to sports-related concussions, brain injuries suffered by members of the military and neurodegenerative diseases such as Alzheimer’s and Parkinson’s.  Advancing brain science will help families everywhere.”

NFL commissioner Roger Goodell also expressed satisfaction with the initiative, stating: “The NFL has made tremendous progress in making the game safe and more exciting.  But we have more work to do.  Our collaboration with GE and Under Armour . . . puts us on an accelerated path to progress . . that will benefit athletes, the military, and all members of society.”

On January 25, 2013, the U.S. Court of Appeals for the District of Columbia held that the National Labor Relations Board (“NLRB”) lacked a sufficient quorum of members when it issued a finding that Noel Canning had violated the National Labor Relations Act.  See Noel Canning v. NLRB, 2013 U.S. App. LEXIS 1659 (D.C. Cir. Jan. 25, 2013).  On the date that the NLRB issued its findings against Noel Canning, three of its five members were sitting after appointment by President Obama, without Senate confirmation, under the Recess Appointment Clause of the U.S. Constitution.  The problem, according to the court, was that the “recess appointees” had been appointed while the Senate was in pro forma session, not recess, thereby making the appointments invalid.  With only two validly appointed members sitting on the NLRB, the Court of Appeals held that the NLRB lacked the necessary quorum to take any action against Noel Canning.

The court’s ruling potentially invalidates all NLRB rulings since January 4, 2012, the date of the recess appointments.  And because two of the unconfirmed appointees continue to sit on the NLRB, all NLRB decisions going forward may be called into question.  The NLRB does not appear phased by the court’s ruling, however, and continues to issue decisions.  It is expected that the NLRB will continue with business as usual until the Supreme Court weighs in on the issue.

On February 13, 2013, President Obama asked the Senate to confirm his re-nomination of NLRB Members Sharon Block and Richard Griffin.  That same day, various Republican House of Representatives leaders sent a letter to President Obama and NLRB Chairman Mark Pearce, requesting that the President nominate “four qualified individuals” to the NLRB and that the NLRB cease all activity until confirmation of the requested appointments.  While each branch of the government weighs in on this issue, employers and their attorneys are left with the challenge of interpreting the current state of labor law.

We look forward to gaining insight on the recess appointee controversy, as well as the NLRB’s recent decisions and agendas, from Lafe Solomon, Acting General Counsel for the NLRB, during DRI’s 36^th Annual Employment and Labor Law Seminar, to be held May 1-3, 2013, at the Arizona Biltmore, in Phoenix, Arizona.  If you have not already registered for this exciting event, please access the registration information here to secure your spot today.

Last June, Drake and Chris Brown found themselves on opposite sides of a New York City nightclub scuffle.  Now, according to reports by TMZ, they are suing each other over the fight in the hopes of receiving a judicial determination of who was responsible for the brawl.  The fight began after an argument broke out over the pop singer Rihanna.  Eventually, punches and bottles were thrown, leaving the club in shambles and Brown with a gash on his chin.  After a model named Romain Julien was also injured in the fight, he sued Brown, Drake, and the club for damages stemming from his cuts, “cosmetic defects,” and emotional distress.  Most likely, Brown and Drake are seeking this determination in order to avoid paying damages should Julien win his lawsuit.

Other notable lawsuits stemming from that particular fight include Entertainment Enterprises Ltd.’s $4 million lost licensing deal claim, along with a $20 million eye injury claim brought by NBA star Tony Parker.  Surprisingly, the incident resulted in no criminal charges against either party due to a lack of conclusory evidence.

As originally published at Sports Law Insider

Do you talk or text while driving? If so, you better check out the status of the law in your state. Here are two links that will give you important information on these laws. And local governments are getting in on the act. For example, this Wednesday Mission, Kansas, begins the process of enacting an ordinance allowing only hands-free phones while driving.

 http://www.distraction.gov/content/get-the-facts/state-laws.html

http://www.ghsa.org/html/stateinfo/laws/cellphone_laws.html

Rule 403 of the Federal Rules of Evidence governs the admissibility of demonstrative evidence at trial, assuming that evidence is determined to be relevant under Rule 401. Pursuant to Rule 403, a demonstrative exhibit may be excluded from the courtroom if its probative value is substantially outweighed by its unfair prejudice, its cumulative nature or if it is confusing or misleading.

Law.com’s Legal Blog Watch recently noted a viral Facebook photo involving a “footlong” sandwich that appeared to be less than 12 inches long:  http://legalblogwatch.typepad.com/legal_blog_watch/2013/01/how-many-inches-is-your-subway-footlong-sub.html.  Citing a post from Today where restaurant customers were posting pictures of footlong sandwiches, http://lifeinc.today.com/_news/2013/01/17/16565128-wheres-the-inch-subways-footlong-falls-short?lite, Legal Blog Watch asked whether a class action or two or three would soon follow.  One might reasonably question whether customers suffered any damages by the claimed shortfall.  One might further question how plaintiffs’ counsel could possibly prove any sort of claim on a class-wide basis.  Nonetheless, the fact that such questions come to mind shows the pervasiveness of class action litigation in today’s society.  The issues inherent in the current use of the class action device are of such importance that the U.S. Supreme Court’s current docket features five merits cases involving class action claims.  Those Supreme Court cases, along with a number of other cutting-edge class action topics, will be the subject of DRI’s 2013 Class Action Seminar, which will take place at the Washington Court Hotel in Washington, DC on July 25 and 26.  DRI members interested in this area of law will want to attend this Program.

Even before Hurricane Sandy devastated the East Coast, climate change policy had been on the forefront of federal and state legislative agendas.    However, the size and scope of Sandy has brought a new wave of federal and state policy proposals aimed at preventing the frequency and magnitude of superstorms like Sandy.

In Congress, Senator Barbara Boxer (D-CA), the Chair of the Senate Environmental and Public Works Committee, is spearheading several efforts aimed at curbing climate change.  Although the legislation was proposed before Sandy, the aftermath of Sandy has renewed Senator Boxer’s calls to enact the Water Resources Development Act of 2012.  This bill authorizes infrastructure improvements to our nation’s water resources in order to reduce flood risk and storm damage and to foster ecosystem restoration. 

Senator Boxer, in a collaborative effort with the Chairs of the Senate Energy and National Resources Committee and Senate Foreign Relations Committee, has also recently proposed the creation of a “clearinghouse” in order to organize the Senate’s efforts on climate change legislation.  She intends the clearinghouse to be a central forum for lawmakers to examine the current state of the science on climate change and to raise federal and state-specific issues of interest.

In New Jersey, one of the states hit hardest by Sandy, the storm may already be shaping New Jersey’s strategic planning and growth efforts.  The State’s strategic development plan was scheduled for release just weeks after the storm; however, its release has been delayed, and according to the Christie Administration, the plan is under reconsideration “in light of the new challenges that have been presented by the storm and the aftermath of the storm.”     

While the predictability of future natural disasters is far from certain, we can be sure that in the aftermath of Sandy, legislative and public policy proposals addressing climate change will be on the horizon.    Indeed, since President Obama specifically mentioned climate change in his Inaugural Address on January 21, 2013, his Administration will likely seek congressional action before the 2014 mid-term elections.