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FMG Law Blog Line

Archive for September, 2017

Ranking the State Courts: Is the Litigation Environment Getting Better?

Posted on: September 26th, 2017

By: Jacob E. Daly

Earlier this month, the U.S. Chamber Institute for Legal Reform (“ILR”) published the results of its 2017 lawsuit climate survey. Participants in the survey were 1,321 in-house attorneys and other senior executives at companies with at least $100 million in annual revenue who are knowledgeable about litigation matters and have recent firsthand litigation experience in each state they evaluated. The states were ranked on a scale of 0-100 based on grades assigned by participants in the following categories: (1) enforcing meaningful venue requirements; (2) overall treatment of tort and contract litigation; (3) treatment of class action suits and mass consolidation suits; (4) damages; (5) proportional discovery; (6) scientific and technical evidence; (7) trial judges’ impartiality; (8) trial judges’ competence; (9) juries’ fairness; and (10) quality of appellate review. Participants assigned a grade of A, B, C, D, or F for each category, and these grades were then translated to scores of 100, 75, 50, 25, and 0, respectively.

The ILR has conducted this survey 11 times since 2002 (2002-2008, 2010, 2012, 2015, and 2017), and Delaware was the top-ranked state every year until this year when South Dakota claimed the no. 1 ranking. Interestingly, the states in which Freeman Mathis & Gary has an office all rank in the bottom half of the country, which suggests that FMG attorneys are toiling in some of the most difficult legal arenas. Those states and their rankings and scores are: New York (29th; 68.4), North Carolina (33rd; 68.2), Pennsylvania (38th; 66.3), Georgia (40th; 64.1), New Jersey (41st; 63.8), Florida (46th; 60.5), and California (47th; 60.0). In addition, the survey identified the cities and counties with the least fair and reasonable litigation environments in the country, and several cities and counties where FMG has an office are on this list: Los Angeles, San Francisco, New York City, and Philadelphia.

The survey shows that the overall average scores are increasing, which means that in-house attorneys and other senior executives believe that the litigation environment is improving overall, though it is interesting to note that the ranking of each state where FMG has an office has gotten worse since 2010. About 63% of participants describe the fairness and reasonableness of state courts as excellent or pretty good, which is up from 50% in 2015 and 49% in 2012. Further, a substantial majority of participants (85%) say that a state’s litigation environment is likely to affect decisions about where to locate or do business, which is up from 75% in 2015 and 70% in 2012.

The full report on ILR’s survey can be found here.

If you have any questions or would like more information, please contact Jacob Daly at [email protected].


Equifax and SEC are Latest Victims of Cyber Attacks

Posted on: September 25th, 2017

By: Amy C. Bender

Two more powerhouses have fallen victim to a data breach.

News of the cyber attack on Equifax spread like wildfire, causing fear in the minds of credit holders everywhere as well as an almost immediate wave of individual and class action lawsuits. The breach – dubbed “absolutely the worst data breach in the history of the modern era” by consumer expert Clark Howard – compromised the personal information (name, Social Security number, date of birth, addresses, and, in some cases, driver’s license numbers) of more than 143 million consumers. As if the scope of the attack was not bad enough, Equifax’s response to the attack has come under criticism on several fronts. For example, many critics believe Equifax’s offer of free credit monitoring to affected consumers did not go far enough since the hackers already have access to consumers’ personal information (and potentially can use it for years to come). Also, Equifax’s dedicated breach website was a separate domain that required users to provide their name and a portion of their Social Security number – the very same information that was hacked in the first place – to determine whether they had been impacted by the breach, often without coming away with a clear answer. Further, the company’s official Twitter account, in response to inquiries, directed consumers to a fake phishing website. This apparently was done intentionally to educate consumers on the dangers of phishing sites, but understandably did not go over well, leading Equifax to apologize and remove the website.

The Securities and Exchange Commission also has been the subject of an unauthorized intrusion into its online system for company financial filings, EDGAR. Although the attack occurred and was discovered last year, the SEC only recently discovered that the attack may have resulted in incidents of insider trading. Moreover, word now is out that the U.S. Department of Homeland Security noted “critical” weaknesses in the SEC’s cybersecurity back in January. One silver lining is that the SEC does not believe any personally identifiable information was accessed due to the breach.

There are many lessons to be learned from this latest round of cyber attacks:

  • Even the most sophisticated organizations are not immune from a cyber attack.
  • Planning, implementation, and monitoring of cyber security is essential.
  • How your organization responds to a cyber attack is critical and will be scrutinized closely by government agencies, your clientele, and the public.
  • Be vigilant about checking your personal and financial accounts.

FMG’s Data Security, Privacy & Technology team has served as breach counsel in hundreds of successful incidents and is available to advise organizations on proactive measures to prepare for and protect against a data breach as well as to help respond effectively if and when an incident occurs.

If you have any questions or would like more information, please contact Amy C. Bender at [email protected].



Medical Expert Witness Reports in California: When to Produce Them…and When Not To

Posted on: September 20th, 2017

By: Jon H. Tisdale

We are all familiar with the mandate that a defense medical examination report, the so-called “IME”, must be produced upon written request by the patient’s attorney. California law requires production 30 days after the demand (or 30 days after the examination, if demanded prior thereto). Basically, as soon as your expert doctor in any discipline of medicine lays a hand on the plaintiff, he or she must author a report of the examination within 30 days and you must produce if demanded (and they always demand it; it is in every form response to a demand for IME used by the entire plaintiff’s bar). You and your expert must also produce any previous reports created by or provided to the examining expert for review.

What is far less clear is whether you must produce reports containing that expert’s assessment and opinions that are separate and apart from the actual IME report. The custom and practice in California that has evolved over many decades is that medical experts prepare two reports: (1) a report of the examination itself (the IME Report) which contains the current complaints of the plaintiff, the examiner’s findings, results of tests conducted, diagnoses, prognoses and “conclusions” of the examiner, and (2) a report of the examiner’s review of all pertinent medical records, films, images and test results by plaintiff’s treating physicians, together with the examiner’s opinions and anticipated trial testimony regarding what injuries or conditions are accident-related versus those that may not be. It is this writer’s opinion that you may never be required to produce the latter report.

Once you have designated a retained expert, you are now obligated to produce him for an expert witness deposition at the request of the plaintiff’s attorney. Typically, the notice for such a deposition includes a demand to produce records at the deposition. Bear in mind that your obligation to produce the examination report is separate and distinct, and may not wait until your expert’s deposition is noticed. Further, prior to a formal demand for production of documents contained in the expert witness deposition notice, there is nothing in California case law or statute that requires you to produce anything else. More specifically, there is nothing in California law that requires you to produce a Medical Record Review.

At the time of the designation of experts before trial, California law allows plaintiff’s counsel to make a demand for simultaneous exchange of all discoverable reports and writings. When the expert’s deposition is noticed, California law requires production of all materials no later than three business days before the deposition. By implication, this also means discoverable materials, as the statute is clearly not intended to invade privilege or work product. So, the key question that lurks within the statute but is not squarely addressed is this: What constitutes a “discoverable” report, versus a non-discoverable report? The statutory framework is silent, so we must examine case law.

National Steel Products Co. v. Superior Court (1985) 164 Cal.App.3d 476 holds generally that not all work by an expert witness is properly the subject of discovery. The court found that the product of the expert’s services rendered in an advisory capacity was not removed from the protection of the attorney work product doctrine merely because the expert was retained.

Scotsman Mfg. Co. v. Superior Court (1966) 242 Cal.App.2d 527 took the work product protection a step further, stating: “ . . . the mere fact that the expert may have the dual status of a prospective witness and of advisor to the attorney, does not remove the product of his services rendered exclusively in an advisory capacity . . . from the work product limitation upon discovery”. The court goes on to state: “We hold that an expert’s report rendered in an advisory capacity is one designed to assist the attorney in such matters as . . . the manner of presentation of proof, and cross-examination of opposing expert witnesses; matters that are often reflective of the mental processes of the attorney under whose direction the expert works.”

To be sure, there is nothing that prevents opposing counsel from asking the expert in deposition what his opinions are and upon what facts and records the opinions are based. However, when a retained expert assists the attorney is assessing causation, apportionment to preexisting conditions or subsequent events at the specific request of the attorney who hired him, arguably the report which explains these tactical considerations at trial remains work product. Certainly, where an expert’s report reflects the attorney’s analysis of trial issues that must be addressed, it can properly be cloaked with work product protection. The worst case scenario is an in camera inspection of the report and redaction of protected portions. Rarely will it get that far. For example, Medical Record Reviews are not intended as trial exhibits. In 37 years of practice, I have introduced such a report into evidence exactly ZERO times. Why on earth would I want jurors behind closed doors reading that voluminous gibberish and speculating why something is in the report that was not testified to or why something isn’t in the report that was testified to? (That’s a rhetorical question . . . there is no reason to introduce the report and subject your expert to cross-examination on what is in or not in the report.)

In the case of non-examining doctors (i.e., neuroradiologists) and non-medical experts (i.e., biomechanical experts, accident reconstructionists, and engineers) the solution is much simpler. Advise them when you retain them that you do not want a report. All you really need is to know what their trial testimony will be.

Are you 100% protected if the other side learns of a Medical Record Review and you decline to produce it? No, it’s just not that clear. However, I think the best practice is to not share the report or even acknowledge that such a report exists. If the other side finds out that there was a written Medical Record Review, make them seek a court order that it is not work product. On the other hand, if the Medical Record Review only hurts the plaintiff’s case and only helps your defense, you can consider sharing it to gain advantage in negotiations at a Mediation. The only downside to sharing it is that if the case does not resolve, your expert will be cross-examined on the review and his expert opinions at trial may be limited to what is contained therein.

If you have any questions or would like more information, please contact Jon Tisdale at [email protected].

Asking Applicants’ Salary History Likely to be Prohibited

Posted on: September 15th, 2017

By: Jennifer L. Sommer

AB 168, likely to pass into California law in 2017, would ban California employers from asking job applicants about their salary history. The bill would apply to all employers, including state and local governments. However, only private employers would have to provide applicants with the relevant position’s pay upon reasonable request.


Proponents say the law is intended to prevent the perpetuation of historical patterns of gender bias and discrimination, where low starting salaries tend to follow the female worker throughout her lifetime. Additionally, proponents say the pay gap follows women even after they leave the workforce, where one observes the impact in lower retirement benefits as well as lower benefits for other programs based on earnings.

The bill’s supporters cite to numerous studies finding disparities in earnings between men and women in the workplace over the last fifty years. In 1963, women who worked full-time year-round made an average of 59 cents for every dollar earned by a man, according to the American Association of University Women (AAUW). Today, women working full-time in the United States typically are paid 80 percent of what men are paid, a gap of 20 percent. (The Simple Truth about the Gender Pay Gap, 2017 Edition, AAUW). The wage gap is even larger for women of color. According to the National Partnership for Women & Families, among women who hold full-time, year-round jobs in the United States, African American women are typically paid 63 cents for every dollar paid to white men, while Latinas are paid 54 cents for every dollar. Asian women are paid 85 cents for every dollar paid to white men, however, some ethnic subgroups of Asian women are paid far less. (America’s Women and the Wage Gap, National Partnership for Women & Families, April 2017)

According to proponents, closing the gender wage gap starts with barring employers from asking questions about salary history so that previous salary discrimination is not perpetuated.

Similar laws in other jurisdictions

In 2016, Massachusetts and Philadelphia enacted laws prohibiting employers from asking job applicants about their salary history. In 2017, New York City and Puerto Rico passed similar laws. In California, San Francisco is currently considering Ordinance No. 170350 which would ban employers from considering the current or past salary of an applicant in determining what salary to offer and from asking applicants about their current or past salary.

Opponents of AB 168 include the California Chamber of Commerce and trade groups, who say the law is unnecessary in view of existing law, which already bans California employers from gag orders preventing the employee from disclosing his or her wages (Cal. Labor Code §232), or for paying rates less than the rates paid to employees of the opposite sex for substantially similar work (Cal. Labor Code §1197.5(a)

Further, AB 1676 was enacted in 2016, providing that prior salary cannot, by itself, justify any disparity in compensation under the bona fide factor exception in the existing Equal Pay Act law. Existing California law, however, does not prohibit employers from inquiring about prior salary information.

Specific provision

The specific provisions, if passed, would:

1) Prohibit a California employer, orally or in writing, personally or through an agent, from seeking salary history information, including compensation and benefits, about an applicant for employment.

2) Require a California employer, upon reasonable request, to provide the pay scale for a position to an applicant applying for employment.

3) Apply to all California employers, including the state and local government employers and the Legislature.

4) Not apply to salary history information that is disclosable to the public pursuant to specified federal and state law.

For additional information related to this topic or other business matters you may contact Jennifer L. Sommer from the law firm of Freeman, Mathis & Gary, LLP at [email protected].

Another Extension of the EB-5 Regional Center Program

Posted on: September 14th, 2017

By: Kenneth S. Levine

A continuing resolution entitled H.R. 601 was signed a few days ago by President Trump. The primary purpose of this latest CR was to approve an allocation of funding for federal government operations through December 8, 2017. However, H.R. 601 also included a provision for a three month extension of the EB-5 Regional Center Program. This latest extension, which comes after a string of previous extensions, leaves intact the program’s current regulatory minimum level of investment ($500,000).

The EB5 investors program remains politically controversial. It is certainly possible that the administration will seek to make changes to the program through Congress by this December. However, in the absence of Congressional action, a further extension of the program is widely anticipated within the next few months.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth S. Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected].