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Archive for the ‘Tort and Catastrophic Loss – GA’ 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].

Getting Strict with Georgia’s Apportionment Statute: Johns v. Suzuki Motor Corp

Posted on: November 24th, 2020

By: Janeen Smith

The Supreme Court of Georgia recently held that Georgia’s apportionment statute, O.C.G.A. § 51-12-33, applies to strict products liability claims brought pursuant to Georgia’s product liability statute, O.C.G.A. § 51-1-11. Johns v. Suzuki Motor of Am., ___ Ga. ___ , 2020 Ga. LEXIS 760 (Case No. S19G1478, decided Oct. 19,2020). This means that defense attorneys can ask juries to consider whether a plaintiff in a products liability lawsuit contributed to his or her injuries apportioning fault. As such, the Johns decision is widely considered a net win for the defense. 

Plaintiff/Appellant Adrian Johns was seriously injured in a motorcycle accident in August 2013 when his Suzuki motorcycle’s front brake failed suddenly. After Johns returned home, he received a recall notice from his motorcycle’s manufacturer. The recall warned of a safety defect involving his motorcycle’s front brake master cylinder that could increase the risk of a crash. Johns filed a lawsuit against his motorcycle’s manufacturer including a strict liability claim based on a design defect. At trial, the Johns’ theory was that a defect in the front brake (the same one the recall addressed) caused his accident, and the manufacturer had prior knowledge of the defect. The manufacturer argued plaintiff’s negligent operation of the motorcycle caused the accident, or if he did experience brake failure, the condition of the brakes existed as a result of his admitted failure to change the brake fluid for eight years. In other words, the manufacturer maintained the recall was unrelated to plaintiff’s claims.

The jury found in favor of plaintiff on each claim and awarded him $10.5 million in compensatory damages and $2 million to his wife for her loss of consortium claim. The jury assessed 49% fault to plaintiff and 51% to defendants. In light of these findings, the trial court reduced plaintiff’s award to $5,355,000 and his wife’s award to $1,020,000. On appeal, plaintiff argued that the trial court erred by applying Georgia’s apportionment statute to reduce an award in products liability lawsuit. In rejecting plaintiff’s argument, The Supreme Court focused on four main points:

  1. Georgia’s apportionment statute does not create an exception for products liability claims;
  2. Plaintiff relied on case law pre-dating the apportionment statute;
  3. Strict liability and apportionment are compatible because the former involves liability and the latter involves fault; and,
  4. Holding manufacturers “absolutely liable” promotes the policy justifications for strict liability products claim, but the legislature considered this to the extent the application of apportionment effects this policy justification.

The third and fourth points are somewhat related and are perhaps the most interesting parts of the opinion. The Supreme Court pushed back on plaintiff’s argument that applying apportionment to a manufacturer defect claim undermines the strict liability framework by showing the two principles are compatible. First, a plaintiff in a products liability action is still relieved from the burden of showing the defect resulted from the manufacturer’s negligence (the key benefit to a strict liability framework).  Second, fault (the main consideration of apportionment) and liability (the main focus of strict liability) involve different considerations. Liability means “responsible or answerable in law.” Liable, BLACK’S LAW Dictionary (11th ed. 2019). Fault, in this context, focuses on the plaintiff’s “responsib[ility]” and “fault” for the injury claimed. Johns at *14.  As such, a jury can consider a plaintiff’s fault while simultaneously acknowledging a manufacturer’s liability.

This case is another example of the trend towards allowing juries to apportion fault in varying circumstances. 

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

Seeking Sanctions Against a Dishonest Plaintiff

Posted on: October 19th, 2020

By: Jennifer Adair

Sanctions for discovery abuses are not a weapon reserved for the plaintiff, and defense attorneys should not shy away from pulling this arrow from their quiver when misrepresentations by the plaintiff are so egregious that a vigorous cross-examination at trial simply will not suffice. Rather, defendants should consider whether to petition the court for the relief necessary to obtain a just result.

In two recent automobile accident cases in Georgia, our firm encountered plaintiffs who claimed both in written discovery and in depositions that they never experienced prior similar injuries. Through the diligent pursuit of medical and claim records, we uncovered that both had extensive relevant medical histories – even to the extent of surgery! – which they concealed from the defense.  Not only did the plaintiffs misrepresent their medical histories, but they failed to disclose those providers whose records would expose their dishonesty.  Those deceptions went to the very heart of the case – whether the motor vehicle accident at issue was the cause of the injury alleged.

Time after time, courts have authorized sanctions for false and misleading discovery responses, up to and including striking the pleading of the offending party. The courts have recognized that a false discovery response is graver than a total failure to respond because the other party may never learn that the response it received is false.  Counsel should carefully consider the issues faced in each case, and the laws of each jurisdiction, to craft proposed sanctions that address the specific harm caused by the plaintiff. In the examples above, we requested, in the alternative:

  • Striking of plaintiff’s complaint
  • Precluding plaintiff from offering any evidence or testimony as to the condition about which she was dishonest
  • Striking plaintiff’s causation experts, who were not accurately informed of her medical history
  • Precluding plaintiff from cross-examining defense causation experts
  • A limited reopening of discovery as to the subject matter of the false response
  • A jury charge on spoliation
  • Attorney’s fees and expenses
  • Finding plaintiff in contempt of court

In both matters, we were successful in persuading the trial court to preclude the plaintiffs from giving any testimony or other evidence of any condition for which they lied about prior treatment. In effect this prevented each from offering evidence of or obtaining any recovery whatsoever for multiple surgeries. The remedies available in other jurisdictions vary, but the policy reasons for awarding such sanctions hold consistent. Similarly, while a personal injury case more frequently lends itself to similar dishonesty, the obligation to provide truthful discovery responses is universal and sanctions should be considered as a strategy any time the opposing party lies.

Faced with a dishonest plaintiff, defendants and their attorneys should carefully consider which cases are appropriate for requesting sanctions. Cases involving a legitimate misunderstanding or a highly nuanced discrepancy are unlikely to evoke a harsh response. Further, if the plaintiff is not aware that the defendants have learned he was dishonest, there may be a strategic advantage to saving the information for use at trial as impeachment so that the plaintiff will not have an opportunity to get his story straight. Seeking sanctions is a strategic decision for attorneys and their clients, but can be an important tool in combatting the unscrupulous plaintiff.

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

Changes in the Landscape of Civil Litigation in the COVID-19 Era

Posted on: September 17th, 2020

By: Christopher Lee

As economic and social norms have been drastically altered over the course of these last several months in the COVID-19 era, so too has the effect been on civil litigants on both sides and the considerations being made by the parties engaged in litigation. As discussed more fully below,  many disputes will see an increased opportunity for early settlement and compromise, while others will simply encounter delays. Nonetheless, it is essential for all litigants to understand the consequences of the altered landscape to effectively navigate this environment in these difficult times. 

Considerations are now being made on both sides of the table that simply did not exist prior to the pandemic. Plaintiffs now are acutely aware of the potential for insolvency of their litigation adversaries and are now carefully considering whether to settle their disputes earlier rather than later, taking into account the financial position of their adversary as the pandemic continues to affect the economy. Thus, plaintiffs may consider early settlement terms that would have been less than ideal prior to the pandemic given the uncertainty of the defendant’s financial position later down the road. Further hampering the plaintiff’s bar more so than the defense are the social distancing guidelines and state of judicial emergency orders that have reduced courthouse function and access, tolled filing deadlines, and postponed trials and hearings. In a recent study, case activity in the federal district courts is down approximately 41% from 2019. This environment is considered by many as defense-friendly given the difficulty plaintiffs now have in pushing forward matters in the majority of cases and the inability to leverage inherent pressures created by impending deadlines.

As to the defense, the thought of engaging in multi-year, costly litigation without a certain outcome is changing the litigation approach for some of even the mostly financially healthy corporations who are now placing an emphasis on reducing costs and/or eliminating contingent liabilities as quickly as possible.  In these cases, the pressures created by the pandemic may also drive them to settle on terms that simply would not have been acceptable prior to the outset of the pandemic. Also in the purview of defendants settlement considerations is a plaintiff’s liquidity and solvency concerns that may promote early settlement on terms more favorable to the defendants. However, some corporations have decided to take a different approach and are now also looking increasingly to third-party funders to finance litigation costs. “Frankly, we’re drinking from a fire hose,” said Allison Chock, U.S. chief investment officer for litigation funder Omni Bridgeway. “One of the things we’ve been talking about for some time now is the trend in corporations that historically paid for the legal expenses beginning to explore using litigation financing instead. … That is now becoming a more urgent trend.”

Ultimately, the pandemic poses many new challenges and considerations for litigants on both sides of the table. Understanding the changes in litigation leverage, litigation risk, and other trends as they continue to develop will be vital to allow counsel to create strategies and tactics to effectively advocate and represent their clients’ interests in alternative dispute resolution and in the courtroom.

If you have questions or would like more information, please contact Christopher Lee 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.**

Efficacy of Covid-19 Liability Waivers

Posted on: September 2nd, 2020

By: Caleb Saggus

Liability waivers are not new, but Covid-19 is. As we try to venture back to some form of normalcy, the effects of Covid-19 remains a topic of legal uncertainty. The private sector is playing a part in shaping the legal parameters of responses to Covid-19 by in some instances requiring their respective patrons to sign liability waivers before obtaining offered services. 

As a contract, and because it relates to the relinquishment of the right to recover for tort-based claims, waivers are governed by state law. And, while most states adhere to similar general principles regarding waivers, outliers exist, and there are variations specific to particular states. The typical variations could be more pronounced in the context of Covid-specific waivers, and new variations could develop.  Thus, the extent to which a waiver will ultimately withstand scrutiny by a court will likely vary from state to state to some extent.

As a general proposition, however, waivers have limits, and this will likely remain true for Covid-19 liability waivers. Generally, waiver provisions for acts constituting gross negligence or intentional conduct are unenforceable, as are provisions that are overly broad. Therefore, businesses that use Covid-19 liability waivers should consider expressly identifying that the waiver covers claims related to injuries related to Covid-19 and are based on the business’ negligence.

Another nuance to consider is the effect if a patron refuses to sign a waiver. A court might be more inclined to find a waiver unenforceable as a violation of public policy if the service being denied based on a refusal to sign the waiver is for a more “essential” business rather than one of pure leisure or choice.

Perhaps more global in its effect on Covid-19 liability waivers is state legislation giving entities immunity for Covid-19 liability.  Such legislation may render waivers unnecessary—but that could depend on whether there is any gap in the legislation leaving a potential for liability that a waiver could fill. Indeed, many states have already enacted Covid-19 immunity legislation. For these states, waivers are likely hollow as far as protecting against liability but might nonetheless still be used by businesses to prevent frivolous lawsuits.

Ultimately, waivers may prove to have little practical significance in the litigation world given the likely difficulty in proving a Covid-19 liability lawsuit. This stems from the inherent difficulty in contact tracing and thus establishing causation.  Depending on the scope of evolution surrounding these issues, and whether a state has enacted Covid-19 liability immunity legislation, the extent to which Covid-19 liability waivers will be an effective protection from liability moving forward remains unclear.  What is clear is that for now it will depend on the various states and their respective legal regimes.

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