This past holiday season, Target Corporation was victimized by one of the largest retail data breaches in the United States. On December 19, 2013, Target confirmed reports that hackers stole payment data from approximately 40 million customers who shopped in its stores from November 27, 2013 through the middle of December. Since learning that data was also stolen from online shoppers, Target has since revised the number of potential customers affected up to between 70 million and 110 million. Retail analysts anticipate Target’s security breach will result in massive losses for the retailer due to federal and state regulatory penalties and lost revenues from cautious shoppers. More immediately, Target should be concerned with the onslaught of plaintiff class action lawsuits typically filed after a retail security breach. 

One way Target could have reduced the risk of defending class action lawsuits after a security breach (at least from claims stemming from online purchases) was to include an arbitration clause in its online Terms and Conditions. Online retailers are starting to require that their customers agree to arbitrate disputes on an individual basis only, with customers being obligated to waive any rights they might have to pursue claims through class actions. Litigation in this area over the last several years has focused on the enforceability of these online arbitration agreements.

For example, in 2012, customers sued and its subsidiary (an online apparel and shoe retailer) in various courts, alleging they received emails from Zappos notifying them that a hacker had breached Amazon’s computer servers and downloaded files containing their personally identifying information. Zappos and Amazon attempted to compel arbitration, arguing that Zappos’ terms of use require customers to arbitrate any disputes based on their use of the retailer’s website. However, the court denied Amazon and Zappos’ request based in part on deficiencies in the customers’ consent. 

In an upcoming article, Jones Walker commercial litigation attorney, Mia Mitchell Grandpre (New Orleans, Los Angeles), will review the latest court opinions in this area and propose best practices for companies ensuring the enforceability of online arbitration agreements. 

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No matter how hard the NFL tries to get away from the concussion lawsuits, they won’t go away. Most recently former Chicago Bears quarterback Bobby Douglass and former Northwestern player John Cornell is suing the NFL and helmet manufacture Riddell. On November 4, 2013, the two former players filed suit alleging concussion-related injuries resulting from their time on the field.

Douglass, 66, was quarterback for the Chicago Bears from 1969 to 1975. He later went on to play for the San Diego Chargers, New Orleans Saints and Green Bay Packers. Cornell, 66, is a Northwestern graduate that participated in two NFL training camps with the New Orleans Saints.

The former players claim they suffered multiple concussions and sub concussive brain injuries that put them at risk for brain damage and chronic traumatic encephalopathy (CTE). CTE is a degenerative brain disease commonly found in athletes who have a history of repeated brain trauma.

The lawsuit accuses the NFL of negligence and fraudulent misrepresentation. The former players argue that the league knew about the harmful effects of concussions yet failed to warn players. More so, they claim that the NFL falsely told retired players that there was no evidence correlating on-field injuries to long-term brain damage. The former players say that the helmet manufacturer, Riddell, negligently failed to warn players that their helmets wouldn’t protect them from the type of on-field injuries they sustained.

Douglass’ attorney said “Mr. Douglass gave his blood, sweat and tears to the game and he now needs the league to step up and care for him.”

As much as the NFL tries to move passed the concussion lawsuits, it’s not ending. In August 2013, the NFL reached a $765 million settlement with over 4,500 former players to settle a class action for concussion-related injuries. Senior U.S. District Judge Anita Brody still needs to hold hearings to determine whether the agreement will be approved. Either way, the impact of that settlement is unclear on Douglass and Cornell’s lawsuit. It is likely that this lawsuit will be consolidated with the class action suit. 

This blog was posted today on the Sports & Entertainment Law Blog. Click here to read the original entry. 


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This month, a complaint was filed against Fidelity National Title Group, Inc. in Los Angeles Superior Court by one of its former employees alleging discrimination based on gender, pregnancy, and a medical condition, as well as retaliation, harassment, and intentional infliction of emotional distress.

In Stepp v. Fidelity National Title Group, the former employee, Jessica Stepp, a female attorney, was hired by the company when she was five (5) months pregnant. She claims that throughout her pregnancy, her supervisor and coworkers made disapproving remarks regarding her pregnancy and of her choice to have children, for example, asking when she would be getting her tubes tied. When she returned to work after delivering her child, she claims her supervisor was unaccommodating. She requested a windowless office to allow her to pump breast milk, which her supervisor denied and told her to “figure things out.” Her supervisor also denied her a lock for her office door, and instead required her to hang a “do not disturb” sign on her door’s exterior announcing that she was in the midst of pumping. After a worker accidentally walked in on her with her top off, she installed a lock herself.

Throughout her employment, Stepp further claims her supervisor refused to lighten her case load even when medically necessary. Following the birth of her child, Stepp became pregnant again, but miscarried resulting in an emergency medical leave. During this period, motions were due to be filed in court. However, her supervisor refused to assign them to another attorney stating Stepp had to figure out a way to get them done herself.

The complaint further alleges that not only did she receive a heavy case load, but other female attorneys in the office did as well, a problem not suffered by any of her male coworkers. Her workloads forced her to work seventeen (17) hours per day, and she was forced to take on the additional duties of a paralegal after one quit. Of the other women heavily burdened (all of whom had children), one quit her job because she felt she could be liable for malpractice as a result of her unmanageable caseload.

Finally, the complaint claims Stepp was fired as a result of inadequate performance, despite all other male employees being given a probation period prior to termination.

This case underlines the importance of employers treating their employees equally to avoid the filing of lawsuits alleging discrimination. As we found out several weeks ago in Inconsistent Treatment of Employees Could Land You in Hot Water, disparate treatment of employees is sufficient to support a claim for discrimination and is an issue properly determined by the trier of fact. Here, it appears Stepp has met her burden in alleging disparate treatment among female and male coworkers such that her case may proceed. It is therefore important for employers to ensure they, as well as supervisors, follow clear employment protocols and are trained to avoid situations that may give rise to liability.

This blog was posted on August 27 on Jampol Zimet’s Insurance Defense Blog. Click here to see the original post. 

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NFL, Players Reach Concussion Agreement

Posted on August 30, 2013 02:45 by Tim Epstein


While the $765 million proposed settlement is a considerable sum of money, a final judgment figure would possibly have greatly exceeded this dollar amount; not to mention legal fees and expert costs to get there, along with continued acrimony between necessary business partners (NFL players and the League) related to the MDL.  The proposed settlement appears to resolve all claims in the MDL against the NFL defendants, and apply to every former NFL player who will have retired by the time the Court approves the settlement.  At this stage, however, it appears that the litigation will continue as between the helmet manufacturers and the players.

For latest news regarding the settlement, click here

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On July 19, 2013, the Alabama Court of Civil Appeals released its opinion in Gore v. Lafarge North America, Inc. wherein it addressed the trial judge’s ability to assign a disability rating that is lower than the impairment rating issued by the authorized treating physician. In Alabama, a judge is not limited by the impairment rating when assigning a disability rating. Although it is common for trial judges to use the impairment rating assigned by the doctor as a minimum, it is unusual to see a disability rating that is lower than the impairment rating.

In Gore, the plaintiff claimed that he was permanently and totaling disabled as a result of rocks falling on him while at work injuring his neck and other parts of his body. Initial treatment provided by the employer did not reveal any injuries and the plaintiff was returned to work at light duty and given pain medication. The plaintiff then went to see his own doctor but did not indicate he had treated with the employer’s doctor. As a result, the plaintiff secured pain mediation from both doctors which was an obvious credibility issue. Discovery later revealed that, prior to the accident, the plaintiff had been off of work for other injuries, including his neck, and was receiving narcotic pain medication up to 4 days prior to the alleged accident. During that period of time he was also off work as a result of being convicted for doctor shopping to secure multiple prescriptions for Xanax.

The evidence at trial also revealed that the plaintiff was not truthful in regards to prior neck problems. The plaintiff testified that he never had prior neck pain but his supervisor testified that the plaintiff had been off work, or unable to perform his work, on numerous occasions complaining about his neck, back, shoulder and foot. Medical records also revealed prior medical treatment for back and neck pain. The plaintiff ultimately underwent surgery performed by the authorized treating physician to remove several disk and bone spurs as a result of arthritis at almost every level and a pinched nerve. The initial fusion was unsuccessful and a revision was performed. He was ultimately placed at MMI with light duty restrictions and given a 20% impairment rating to the body. The authorized treating physician testified that, based on the provided history, the accident did cause the pinched nerve; however, it was very challenging to separate degenerative from acute.

The trial Court found that the plaintiff was suffering from similar symptoms prior to the accident evidenced by short term disability 3 times over a 5 year period and narcotic pain medication as recently as 2 months before the accident. The trial Court also questioned the plaintiff’s credibility based on inconsistent testimony regarding prior injuries and his criminal convictions for DUI in the past and the conviction for doctor shopping. The trial Court found that the plaintiff proved that he had an on the job injury but found that it only resulted in a permanent partial disability. The trial Court opined that the plaintiff’s past medical condition accounted for some of the disability and the degenerative conditions could have resulted in the current injuries and/or need for treatment. As a resulted, the judge reduced the doctor’s 20% impairment rating to a 10% disability rating to account for the preexisting condition causing some of the current disability and not the on the job accident.

On appeal the plaintiff argued that the preexisting condition should not have been considered because he was performing his job normally at the time of the accident. He argued that because the accident was one factor of the disability he met his burden of proof since the accident did not have to be the sole cause of the permanent and total disability. The Alabama Court of Civil Appeals agreed that this met the standard for medical causation but stated that the extent that the accident contributed to the disability was the issue. The Appeals Court stated that the preexisting neck injury was not latent or asymptomatic and, therefore, the preexisting condition was the cause of a portion of the disability and was in fact affecting his ability to work at times prior to the accident. The Court of Appeals ruled that the evidenced supported the Trial Court’s finding that a portion of the 20% disability issued by the doctor was not the result of the accident but was the result of the preexisting degenerative condition.

Of note, the Court of Appeals stated that the evidence was sufficient to deny benefits altogether because of the plaintiff’s inability to work on various occasions leading up to the accident but the employer did not cross appeal that issue.

The Court of Appeals remanded the case to the trial Court for a determination on whether the plaintiff suffered any loss of ability to earn because he had not been able to return to work following his injuries.

My Two Cents:

Just because the preexisting condition does not prevent the employee from performing his job prior to the accident do not ignore it. If the preexisting condition is causing, or partially causing, the disability complained of, the Judge can attribute some of the disability to the preexisting condition, and reduce the disability attributed to the work injury.



The article was written by Joshua G. Holden, Esq. a Member of Fish Nelson, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters, on July 22. Click here to read the original entry.

Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. He is the current Chair of the ABA/ TIPS Workers’ Compensation and Employers’ Liability Committee. He is also on the Board of the Alabama Workers Compensation Organization and a member of numerous other associations and organizations. Holden has been selected as a "Rising Star" by Super Lawyers.

Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.

If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at or 205-332-1428.

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On Monday, July, 8 2013 a Pennsylvania federal judge ordered a mass of NFL concussion cases to mediation.  The cases were brought by more than 4,000 former National Football League (NFL) players accusing the league of negligence and concealing the dangers of concussions.  The players say the league has known for years, or even decades about the long-term dangers of concussions.  The league responded that it released warnings based on the medical research available at the time.

The NFL filed motions to dismiss the cases in which it denied wrongdoing and stated that player safety is governed by the collective bargaining agreement.  The league contends the parties negotiated those terms and the issue is to be resolved in a confidential arbitration.  The players argue that the concealment was fraud and was not contemplated by the collective bargaining agreement.

U.S. District Judge Anita Brody originally planned to rule on the motion to dismiss on July 22, 2013.  However, she now says she will not rule on the motion until at least early September.  The judge says this will give the mediator time to bring the sides closer together.  Layn Phillips, a retired federal judge, has been appointed as the mediator.  Phillips cannot make a binding decision, and any side can choose to stop whenever it wants; however, the judge hopes the continued negotiations will result in a settlement.  

First, Phillips will meet with both sides’ counsel to hear the arguments on each side.  Then he will go back and forth with each side individually to try and strike a deal that works for both parties.  When Phillips reports back to the judge on September 3, 2013, he can recommend going back to court or ask for more time to negotiate.

Neither side commented on the decision.  The judge ordered the sides to refrain from publically discussing the mediation.  

Some commentators think the order to mediate is a signal that the case has a chance to settle.  Settling could prevent the NFL from turning over records that may harm its public image.  Additionally, it would save a lot of time and expensive litigation because the suit could drag on for years.

Yet, there are still those that have their doubts.  Gabriel Feldman, the director of the Sports Law Program at Tulane University said, “[i]t will be a great feat for the mediator to settle the case. He might bring them closer, but to what? This is complex litigation.”  He would be “surprised at this earl a stage for the N.F.L. to give a large settlement.”

We will have to wait until September 3 to see what happens.  The case is In re National Football League Players' Concussion Injury Litigation, U.S. District Court for the Eastern District of Pennsylvania, No. 12-2323.

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While any medical testing for employees or job candidates may invite scrutiny under the Americans with Disabilities Act (“ADA”), many employers don’t always view drug and alcohol screening the same way as they do a typical medical test.  While overlooking that connection could be a mistake, not all the skies in this area are gray, as a recent decision from a federal district judge in Pennsylvania illustrates. 

In EEOC v. U.S. Steel, the United States District Court for the Western District of Pennsylvania dismissed a lawsuit filed by the Equal Employment Opportunity Commission (“EEOC”) against U.S. Steel, alleging that U.S. Steel’s policy of conducting random breath alcohol tests on probationary employees violated the ADA.  The Court agreed with U.S. Steel’s position that the random alcohol testing policy was job-related and consistent with business necessity, and specifically rejected provisions of the EEOC’s Enforcement Guidance publication on disability-related inquiries and medical examinations as unpersuasive.

The suit arose out of a policy applicable to employees of U.S. Steel’s coke manufacturing facility in Clairton, Pennsylvania. The coke production department at that plant produces coke by heating coal inside coke oven batteries. Entry-level new hires there generally are assigned to jobs which require that they perform tasks on or near the coke batteries, which can reach 2,100 degrees Fahrenheit.  Hazards in the department include biosludge, narrow work areas, dangerous heights, massive moving machinery, superheated gasses that are toxic and combustible, and mobile vehicles containing hot coke or bituminous coal.  Because of the hazardous working conditions, employees are required to wear layers of protective clothing that cover the entire body, including face masks.  Sounds like a comfortable place to work, right?

According to the collective bargaining agreement between U.S. Steel and the union representing their employees, newly-hired workers are subject to random drug and alcohol testing during a probationary period of 1,040 hours.  Any probationary employee who produces a positive test result during that period is discharged.  When the EEOC got wind of this policy, it sued U.S. Steel, alleging that it violated the ADA’s prohibition against employee medical examinations unless and until the employer has an individualized, reasonable suspicion of intoxication (except in cases of public safety workers – like firefighters).  The company moved to dismiss the suit arguing that its practice of randomly testing probationary employees is job-related and consistent with business necessity because it enables the company to detect alcohol impairment on the job, which exacerbates the many other hazards already existing at the plant.

In rejecting the EEOC’s arguments, the Court stated that it found nothing in the statutory text of the ADA which specifically requires employers to possess individualized suspicion that an employee presents a safety hazard before conducting a random breath alcohol test.  Likewise, the court rejected the EEOC’s position that across-the-board medical examinations of current employees can only be justified in the case of public safety employees.  The court found no legitimate basis for not extending the same rationale to employees in other safety-sensitive positions – like those in U.S. Steel’s coke plant, where supervisors may be unable to detect signs of impairment on employees who are heavily clad in protective gear that obscures employees’ faces and speech. 

The Court also concluded that U.S. Steel’s limitation on applying the random alcohol testing program only to probationary employees was justified because new employees are less skilled and more likely to engage in risky behavior, like abusing alcohol at work, than regular employees who have been on the job long enough to appreciate the risks of the workplace.  Finally, the court concluded that the random alcohol testing approach was not inconsistent with the ADA’s goal of preventing employers from targeting specific employees with disabilities based upon stereotypes, misconceptions, and unfounded fears. 

Although the court’s decision in U.S. Steel is certainly encouraging for employers in certain industries, the court’s ruling does not necessarily mean that similar policies requiring random drug or alcohol testing in all work environments will withstand scrutiny under the ADA.  Random drug or alcohol testing of employees who do not hold safety-sensitive positions may still be found to violate the ADA if it is determined that such testing is not job-related or consistent with business necessity.  Moreover, there often are disputes as to whether a particular position is a safety-sensitive one.  Due consultation with competent labor and employment counsel remains advised for employers who are considering implementing a drug or alcohol testing policy, or who wish to consider amending their policy as a consequence of this ruling.

This blog was originally posted on June 27 on Steptoe & Johnson's Employment Essentials blog. Click here for the original post. 

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I do not follow celebrity news gossip, but even I heard that Paula Deen was recently deposed and some are not happy about her testimony.  CNN put the transcript on its website.  The CNN link may not last, but federal court filings do.  If someday the CNN link fails, the deposition was publicly filed as document 197-1 in case 12-cv-00139.  The case may be accessed via PACER for the Southern District of Georgia.  To be absolutely clear, I have not read the 149 page transcript or any of the filings in this case.

If I have not read the deposition, why am I posting about it?  It is certainly not to add my voice to the celebrity gossip firestorm.  Instead, the point of this post is to discuss a few issues that can arise when representing public figure clients.  Paula Deen’s current case prominently highlights a few them.  When a request to depose your public figure client arrives, what are some of your options to help avoid the firestorm currently surrounding Paula Deen?

Seek a Protective Order

NRCP 26(c) authorizes a court to issue a protective order, in certain circumstances, to govern discovery.  If a litigant is a well-known public figure, one litigation strategy may be to leverage that profile against her to force a favorable resolution.  I am not saying this occurred to Paula Deen.  If you are defending the public figure, it may be prudent to seek a protective order before discovery begins.  NRCP 26(c) permits “for good cause shown, the court in which the action is pending may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”

But wait, court documents are public records so discovery materials are presumptively public!  Probably not.  In Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) a religious organization sued a newspaper.  The organization was concerned the paper would publish information it learned in discovery and sought a protective order.  The newspaper appealed and argued the order violated its First Amendment rights.  The Supreme Court of the United States disagreed and, in short, stated there may be constitutionally permissible reasons for a court to restrain the use of information gathered via the discovery process.  The debate about this topic did not end in 1984.  The legal community continues debating the extent to which information gathered via court-permitted discovery is or is not public.   See Richard L. Marcus, A Modest Proposal: Recognizing (At Last) that the Federal Rules No Not Declare That Discovery is Presumptively Public, 81 Chi.-Kent L. Rev. 33 (2006).

Where representing a public figure, a protective order is one way to seek to focus the case and avoid a situation like Paula Deen is enduring.

Object to Apex Depositions

The Paula Deen lawsuit reportedly involved a restaurant in which she had some involvement.  I do not know what level of involvement Paula Deen had in the daily operations of the restaurant in her lawsuit, but, for an example, consider Wolfgang Puck.  Here in Las Vegas, it sometimes feels like Wolfgang Puck affiliated restaurants are nearly as ubiquitous as Starbucks, but typically with far better food.  Obviously he cannot be involved in the daily operations of each of these restaurants and his other businesses.  But if a customer files a run of the mill personal injury lawsuit against the restaurant, what is to stop the customer from then deposing Wolfgang Puck himself?

The response is to move for a protective order and rely upon the apex doctrine.  Why?

Under the “apex doctrine,” courts sometimes grant protective orders barring the depositions of high-level corporate officers or managers who are unlikely to have personal knowledge of the facts sought by the deposing party. If a deponent is a high-level corporate officer who certifies that he or she has no personal knowledge of the facts, the court may grant a protective order requiring the deposing party to first seek discovery through less intrusive methods, e.g., from lower level employees who are more likely to have direct knowledge.

6-26 Moore’s Federal Practice – Civil § 26.105.  The concept has been discussed locally in a case that resulted in a blog post.  Luangisa v. Interface Operations, 2011 U.S. Dist. LEXIS 139700, 2011 WL 6029880 (D. Nev. 2011).  Remember, it is difficult to qualify for an apex exception to deposition.

I do not know if Paula Deen would have qualified for the apex exception, but it is another tool to help control discovery for cases involving public figures.

At the Deposition: Do What You Can Within the Rules to Defend Your Client
What can you do to defend your public figure client if she is deposed?  First, keep your head.  I can appreciate how representing a public figure might create certain expectations and pressure. I can only urge you not to jettison everything you learned and practiced leading up to this moment, walk into a deposition and be a baddie.  This blog has already discussed what happens when good lawyers act out of character and the ramifications of those actions.  Public figure client or not, the rules still apply.

Second, prepare your client.  If the client is a public figure that is probably easier said than done.  I can only speculate that the lawyers for Lil Wayne and Lady Gaga did not prep them to act as they once did.  The public figure deponent must be ready, like any other client, to present their testimony in the best manner possible.

Third, although you as the defending attorney are a potted plant and there is little you can do, control what you can.  Assert appropriate objections because, if your client is well prepared, she will remember an objection means there may be something wrong about the question which must be addressed.  Take breaks when needed.  It does not look good, especially in a video recorded deposition, to take a break in the middle of key testimony, or multiple breaks in the space of a few questions, but if your client is melting down its all you can do.  Get the client outside the room, calm her down and try to restore sanity to the situation. Be wary however, as in some jurisdictions there is no attorney-client privilege during deposition breaks.

At the Deposition: Terminate and Move for a Protective Order, if Necessary

If everything else fails and the deposition questioning is simply out of line and control, consider terminating and moving for a protective order. I generally consider this the nuclear option but, as sadly documented by various posts on this blog, sometimes it cannot be avoided.

At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the court in the district where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Rule 26(c). If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order.

NRCP 37(d)(3).  The converse is also true for the defending attorney.  “If the court or discovery commissioner finds that any impediment, delay, or other conduct has frustrated the fair examination of the deponent, it may impose upon the persons responsible an appropriate sanction, including the reasonable costs and attorney’s fees incurred by any parties as a result thereof.”  NRCP 37(d)(2).

As you contemplate whether to terminate your public figure client’s deposition, consider a few factors.  The courts really do seem to consider termination the nuclear option.  If you terminate a deposition, you had better have a rock solid reason for it or you will probably be paying for the continued deposition.  Also, if you terminate your public figure client’s deposition, it is your duty to act as quickly as possible to file the motion for protective order.  The courts likely understand there is a slight delay as you gather a transcript, but order a rush copy.  If you do not act promptly, the courts may consider this a sign of bad faith.  Finally, do you need to conduct a separate “meet and confer” conference before filing a discovery motion?  There is no bright-line rule, but use common sense, assuming any remains if the deposition is so bad that you are terminating it.  In such a situation, I typically find the reason counsel cannot agree is already in the transcript.  A separate “meet and confer” would serve no purpose.  Having said that, it may be beneficial to go the extra mile and initiate a separate “meet and confer” in the days after the deposition as you prepare the motion for protective order.  It might be difficult to conduct but a day or two cooling period could facilitate at least a rational discussion of the situation and how best to proceed.  I would not hold my breath, but it is possible.

The Deposing Attorney: Don’t Go Crazy

If you are deposing a public figure, the same “don’t go crazy” rule applies to you too.  Also remember there are limitations about what an attorney can and cannot say publicly about his client’s case.  There was once a local kerfuffle about those limitations.  Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991).

At the end of the day, public figure depositions can raise complications.  I can only encourage the lawyers involved to recognize these potential complications early and try to stay ahead of them.

This article was originally posted on June 28 on Michael P. Lowry’s “Compelling Discovery” blog. Click here to read the original post. 

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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. 

The Court, having previous experience addressing MSA related questions, looked to the 11th Circuit decision in Bradley v. Sebelius for guidance. 621 F.3d 1330 (11th Cir. 2010).  Bradley was an allocation case under the MSP with respect to conditional payments, holding that CMS must respect a judicial allocation based on the merits of the case. Applying the logic that CMS’ recovery can be fully satisfied by identifying that portion of an award which is intended to compensate a Claimant for medical expenses (past and future), the Court agreed with the parties in that an MSA did not need to be fully funded to satisfy Medicare’s interest.  It did, however, disagree with respect to the dollar amount of the MSA. 

Instead of following a strict pro rata approach advocated by the Claimant, the Court instead calculated a ratio of the net settlement proceeds (after costs of procurement and conditional payments by CMS had been subtracted from the gross award of $100,000) against the mean MSA figure. That ratio of 18.2% was then applied to the net proceeds, leading the Court to conclude that an MSA totaling $10,138 would be an appropriate amount with which to satisfy Medicare’s future interest.

This case is yet another example in 2013 (building on recent cases such as Early and Sterrett) depicting that MSA issues cannot be ignored simply because the claim being resolved is a liability claim instead of a workers’ compensation claim.  While the issue must be addressed, the opinions also display that a more sophisticated methodology must be applied which takes into account the inherent differences between liability and workers’ compensation claims.  As such, MSAs in the liability context should rarely be funded for the full value of a claimant’s overall future costs of care otherwise covered by Medicare (as the claimant did not recovery 100 cents on the dollar for such damages).  In applying the allocation logic previously utilized in Bradley for conditional payments, the Court has provided a reasonable and logical path for parties to follow in the short term, with CMS anticipated to provide guidance in 2013 in the form of a Notice of Proposed Rulemaking.  

The DRI MSP Task Force will continue to follow these developments and provide you with practical means for incorporating this guidance into your practice.
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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 jury determined that Hotchkiss, a prestigious prep school, was negligent for two reasons: (1) in failing to warn plaintiff before or during a school sponsored trip to China during the summer of 2007 about the risk of insect-borne illness on the trip; and (2) in failing to ensure that plaintiff used protective measures to prevent infection by an insect-borne disease while visiting Mt. Pan in China.

In an article appearing in the Connecticut Law Tribune (Vol. 39, No. 13), titled "Tick Bite Leads To Big Verdict," it was reported that the school was faulted specifically  for not warning plaintiff (and her parents) that she would be traveling in mountainous and forested terrain. As a result, the jury determined that the plaintiff was not aware that she had to protect herself from insects by wearing bug repellent, long sleeve shirts and trousers, and by avoiding brushy undergrowth.

According to Plaintiffs' Amended Complaint, Ms. Munn's parents had Cara flown back to the United States in July '07, where she was hospitalized for several weeks at Weill Cornell Medical Center in the pediatric ICU and later at the Rusk Institute for extensive rehab.  As a result of her severe encephalitis, plaintiff suffered severe neurological and motor injuries, including permanent loss of speech. 

The case, which will almost certainly be appealed, raises significant issues concerning duty and the assumption of personal responsibility by parents who agree to have their child travel abroad for educational purposes. Apart from the obvious differences in food, culture and living conditions, traveling abroad carries many potential risks, some of which are foreseeable and some of which are not. Stepping back from the facts presented by this particularly tragic case, should a high school be held responsible for failing to prevent a student from being bitten by a tick in China? What if the tick had bitten her during a field trip to Central Park?

Assuming that the Second Circuit upholds this verdict, what does this case portend for high schools and colleges that plan educational trips abroad? Is there some bright line test that would provide guidance to a school evaluating the safety concerns of its students? Short of wrapping all of their students in cocoons and keeping them closely monitored in classroom settings, how can any school protect against the kind of unforeseen liability presented by this case?  

Hotchkiss' Answer to Plaintiffs' Amended Complaint states that plaintiffs' claims should be barred by the doctrine of assumption of risk.  The school argues that plaintiffs voluntarily assumed the risk of travel to China as evidenced by their execution of the pre-trip Agreement, Waiver, and Release of Liability.  In this agreement, plaintiffs agreed that Hotchkiss "would not be responsible for any injury to person or property caused by anything other than its sole negligence or willful misconduct" (emphasis added). Would legal weight did the court give to this release? 

Based upon the Verdict Form presented to the jury, it would appear that the trial court gave short shrift to the language in the release.  The jury was asked the following questions: (1) Was one or more of Hotchkiss' negligent acts or omissions a cause-in-fact of Cara Munn's injuries; and (2) Was one or more of Hotchkiss' negligent acts or omissions a substantial factor, that acting alone or in conjunction with other factors, brought about Cara's injuries? 

Those inquiries are a lot different from asking whether the jury finds that Hotchkiss' "sole negligence or willful misconduct" caused the injuries.  Although the jury determined that plaintiff did not contribute to any degree whatsoever in causing her injuries, it was not asked to consider whether other intervening factors played any role in causing Cara's injuries.

There are circumstances when a school can and should be held responsible when things go wrong on a school outing.  Three examples come quickly to mind: (1) sending kids into a war zone despite State Department warnings; (2) sending kids abroad into an epidemic earlier identified by the CDC; or (3) taking non-swimmers for an ocean swim outing without proper supervision. 

How is Munn different from these scenarios?  Is a random bug bite as foreseeable, if at all, as the kinds of risks discussed in the three scenarios above? According to Hotchkiss' summary judgment memorandum, the CDC reported that plaintiff was the first U.S. traveler ever to have reported TBE after traveling in China. Moreover, no U.S. traveler since plaintiff has developed the disease.  Therefore, how unreasonable was it for Hotchkiss not to take precautions against a risk of harm that arguably had such a slight likelihood of taking place?  Shouldn't plaintiffs have had to prove that the defendant was on prior notice of the existence of circumstances that could give rise to an injury? 

Plaintiffs' expert, Peter Tarlow once led a group of children, including his own son, on a tour of Israel.  If a child on that Israel tour had been unexpectedly assaulted by someone holding anti-Zionist views, would Dr. Tarlow expect to be held responsible for any resultant injury because he was "on notice" of decades of endemic unrest in the region? 

Two strong CT trial lawyers squared off against each for this eight day trial--for the plaintiffs, Antonio Ponvert of Koskoff, Koskoff & Bieder, one of the New England plaintiff bar's preeminent firms, and for the defendant, Penny Q. Seaman of Wiggin & Dana, one of Connecticut's oldest and most accomplished firms.  The bar should expect to see excellent post-trial briefing as events unfold.  

*This was originally posted on April 5 on Toxic Tort Litigation Blog. Read the current post here

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