CLOSE X
RSS Feed LinkedIn Instagram Twitter Facebook
Search:
FMG Law Blog Line

Archive for the ‘Tort and Catastrophic Loss’ Category

Obligation to Medicare when Plaintiff Is at Fault

Posted on: January 22nd, 2021

By: Jennifer Adair

You have a slam dunk case. Perhaps you have already won your case at trial or on summary judgment. Once the celebrations subside, defendants and insurers in such situations began to evaluate the fastest and most cost-efficient way to bring final closure to the matter. Frequently, that involves entering into a nominal settlement agreement with the plaintiff to foreclose appeals or future litigation costs.

But, when that plaintiff’s medical treatment was paid for by Medicare, who receives the funds? The answer may surprise you. The Medicare Secondary Payor Act requires insurers to reimburse Medicare for its payments made, even when there is a dispute as to liability and the payment is insufficient to cover the entire amount claimed. 

Under 42 USC § 1395y the insurer’s responsibility to reimburse Medicare is triggered “by a judgment, a payment conditioned upon the recipient’s compromise, waiver, or release (whether or not there is a determination or admission of liability) of payment for items or services included in a claim against the primary plan or the primary plan’s insured, or by other means.”

This is true even when the settlement amount is only a fraction of the amount paid by Medicare. Litigants and insurers should report the settlement to Centers for Medicare & Medicaid Services (“CMS”), and obtain a conditional payment letter. The plaintiff or claimant will then have the opportunity to attempt a compromise of the amount claimed by CMS.

Because of the interest and penalties that can attach when a party fails to comply with this requirement, insurers and self-insured defendants would be wise to consult with counsel when in doubt as to whether a payment must be reported.

For more information, please contact Jennifer Adair at [email protected].

New Jersey Courts Implement Plan For Virtual Civil Jury Trials During COVID-19 Pandemic

Posted on: January 11th, 2021

By: Daniel Baylson

The New Jersey court system has finally rolled out its plan for virtual civil jury trials during the ongoing COVID-19 pandemic. On January 7, 2021, the NJ Supreme Court authorized a two-phase approach to implementing virtual civil jury trials. The Court’s approved plan for virtual civil jury trials incorporates suggestions from various stakeholder organizations, including the New Jersey State Bar Association, New Jersey Association for Justice, New Jersey Defense Association, Trial Attorneys of New Jersey, County Bar Associations, and many individual attorneys.

The Court’s January 7, 2021 Notice to the Bar and Court Order states that the process for virtual civil jury trials will be implemented in two phases.  During Phase 1, civil cases will be noticed and scheduled for virtual jury trials to start on or after February 1, 2021. Only the following vicinages will conduct virtual civil jury trials during Phase 1: Atlantic/Cape May; Cumberland/Gloucester/Salem; Monmouth; Passaic; and Union.  Consent to proceed remotely will be required during Phase 1.  Consent to proceed in a virtual format may be withdrawn no later than the tenth day before jury selection in a given matter.  As of April 5, 2021, Phase 2 will go into effect, and virtual civil jury trials will expand to all counties.  In Phase 2, consent will not be required for a civil jury trial to proceed in a virtual format. Phase 2 will continue until further order but only as long as necessary based on the COVID-19 pandemic.

In both phases, all civil case types (all dockets and all tracks) will be eligible for virtual civil jury trials. Further, virtual civil jury trials in each county, to the extent possible, will begin with cases involving a single plaintiff, a single defendant, a limited number of issues in dispute, and a modest number of live witnesses. Cases that are especially complex (including but not limited to professional malpractice cases), or anticipated to require more than a few weeks to complete, should be scheduled only after one or more straightforward trials have been conducted in the county. The trial judge will conduct a comprehensive pretrial conference that covers all aspects of the virtual trial process. Jury selection will be conducted in an entirely virtual format. During Phase 1 and Phase 2, relevant factors (including health-related or unavoidable travel-related barriers to attorneys convening in the courtroom) will be considered in scheduling cases for trial dates.

For further information, the Court’s January 7, 2021 Notice to the Bar and Court Order is here: https://njcourts.gov/notices/2021/n210107a.pdf?c=r2o

If you have questions or would like more information, please contact Daniel Baylson at [email protected].

Sudden Emergency Defense- Suddenly disappears in Pennsylvania?

Posted on: January 7th, 2021

By: Josh Ferguson

The Pennsylvania Supreme Court recently issued an opinion that appears to limit, if not eliminate, the sudden emergency defense in motor vehicle accident claims. Graham v. Check, No. 42 WAP 2019 (Pa. Dec. 22, 2020).

In that matter, Plaintiff was a pedestrian who was struck and seriously injured by Defendant. In the case the Defendant driver used the “sudden emergency” defense that he claims precluded him from braking in time to prevent hitting the man. The trial court provided jury instructions regarding Sudden Emergency Doctrine.

The Pennsylvania Supreme Court found that the trial court in this case erred in instructing the jury on the sudden emergency doctrine as evidence of darkness, an obstructed view, and a lack of evidence of any overtly careless behavior. 

On behalf of the 5-2 majority, Justice Wecht noted that the sudden emergency doctrine “should not be understood as a ‘defense’ in the common sense, and finds it ill-advised to use the word ‘defense’ in sudden emergency [jury] instructions in future cases, notwithstanding that the term features in the current suggested standard jury instruction. “We cannot conclude that the error was harmless,” Wecht said. “Thus, Graham is entitled to a new trial untainted by the sudden emergency instruction. Accordingly, we reverse the order of the Superior Court arming the trial court’s decision to instruct the jury on the sudden emergency doctrine, and we remand for a new trial.”

Future cases will determine whether this has completely eliminated use of the “sudden emergency” defense in Pennsylvania, but there is no doubt it is a change and should be factored into an analysis of defenses in a motor vehicle accident claim.

If you have questions or would like more information, please contact Josh Ferguson at [email protected].

Liability for Injuries Caused by COVID-19 Vaccines

Posted on: January 7th, 2021

By: Jake Daly

Now that COVID-19 vaccines are being administered to millions of people across the country, it is worth asking whether the manufacturers of these vaccines (and others) can be liable for injuries they cause to recipients.  This question is particularly interesting to many people because they are suspicious of the safety of these vaccines based on the speed with which the manufacturers developed them and the FDA approved them.  For most people who sustain a vaccine-related injury, the answer should be no.

The applicable law is the Public Readiness and Emergency Preparedness Act, which Congress enacted in 2005 to encourage the rapid production of vaccines and other medical countermeasures to be used in response to public health emergencies.  The PREP Act provides immunity from claims for personal injuries for (1) manufacturers and distributors of a covered countermeasure, (2) state and local governments and their employees who supervise or administer a program relating to the administration, dispensing, distribution, provision, or use of a covered countermeasure, and (3) licensed health professionals and other people who are authorized to prescribe, administer, or dispense a covered countermeasure, provided that the Secretary of the Department of Health and Human Services must first issue a declaration finding there to be a public health emergency with respect to the particular disease, condition, or threat at issue and defining the medical countermeasures to be covered.

On March 10, 2020, HHS Secretary Alex Azar issued a declaration extending the PREP Act to medical countermeasures to be used against COVID-19.  Under this declaration, which expires on October 1, 2024, a “covered countermeasure” is “any antiviral, any other drug, any biologic, any diagnostic, any other device, or any vaccine, used to treat, diagnose, cure, prevent, or mitigate COVID-19, or the transmission of SARS-CoV-2 or a virus mutating therefrom, or any device used in the administration of any such product, and all components and constituent materials of any such product.”

The PREP Act does not provide immunity from claims for death or serious physical injuries caused by willful misconduct.  For such claims, compensation is available through the Countermeasures Injury Compensation Program.  Some people regard the CICP as inadequate because (1) a claim must be filed within one year of the use or administration of the countermeasure (regardless of when the death occurs or the injury manifests), (2) death benefits are capped at $370,376, (3) benefits for unreimbursed lost wages and out-of-pocket medical expenses are capped at $50,000, and (4) benefits are reduced by amounts received from collateral sources.  Moreover, the CICP rarely awards benefits to claimants.  According to data published on its website, it has awarded benefits to only 29 of 499 claimants since its inception in 2010, and it awarded only about $6,000,000 in total benefits to those 29 claimants (an average of a little more than $200,000 per claimant).

In addition to these structural barriers, claims under the PREP Act must comply with any conditions imposed in the applicable declaration(s).  For example, Secretary Azar’s March 10, 2020 declaration provides that a claimant may receive benefits only upon proof by “compelling, reliable, valid, medical and scientific evidence” that the countermeasure caused the death or serious physical injury.  The “compelling” part of this standard suggests that something more than the traditional tort standard of a preponderance of the evidence is required.

Because of the limitations on claims under the PREP Act, claimants will avoid seeking benefits from the CICP if there are any other options available.  Unfortunately for them, but fortunately for entities and people who are covered by the PREP Act, there appears to be no other recourse for a person killed or injured by a COVID-19 vaccine (or other COVID-19 countermeasure).  Most importantly, the PREP Act expressly preempts conflicting state laws, and so a claimant generally cannot file a traditional state-law tort claim.  Further, the doctrine of sovereign immunity likely forecloses any claim against the FDA based on its approval of a COVID-19 vaccine or other countermeasure.  Finally, the more familiar (and more friendly to claimants) National Vaccine Injury Compensation Program does not apply to COVID-19 vaccines because they are not included on that program’s Vaccine Injury Table.

Thus, most people who sustain an injury caused by a COVID-19 vaccine or other countermeasures will likely be limited to an administrative remedy, if any.  Manufacturers and other covered persons face minimal exposure.  Fair or not, this was the goal of the PREP Act.

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

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Coronavirus Effect? Tort Filings Are Down In 2020, but Products Liability Suits Are Way Up

Posted on: December 17th, 2020

By: Barry Miller

Tort lawsuit filings in federal district courts dropped by 27 percent in 2020 according to Lex Machina, the legal analytics arm of Lexis.

The service compiled statistics for suits filed between January 1 to December 6, 2020, comparing numbers for the same period in 2018 and 2019. At 16,725 this year’s tort filings fell below even the 2018 number of 16,958.

Filings were down 10 percent in all categories but one—Products Liability—which was a massive outlier. Federal courts docketed more than 250,000 products cases in 2020 compared to 53,500 in 2019.

Such filings may be spurred even more by recent holdings that online retailers can be liable for defective products manufactured by third parties but sold on the retailers’ platforms. In August a California Court of Appeal overturned a summary judgment for Amazon when a plaintiff alleged that a battery she bought from an Amazon vendor exploded, causing her severe burns. And in late 2019 Amazon settled a similar case in federal court in Pennsylvania before the Third Circuit could review a 2-1 decision panel decision against it. Both courts found that Amazon was in a better position than the buyer to stop the circulation of defective products.

This comes as CNN argues that the COVID-19 crisis has created two distinct groups of retailers: “those with functioning e-commerce businesses, and those without.” Online sales have taken a steadily larger share of the market in recent years, and the pandemic has accelerated that trend.

Freeman Mathis & Gary’s Tort and Catastrophic Loss practice group can assist retailers and others in the products chain who  face such lawsuits. If you have questions or would like more information, please contact  Barry Miller at [email protected].

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**