"Bitter Pill" article provides important insights for litigation

The Time magazine article, "Bitter Pill - Why Medical Bills Are Killing Us", by Steven Brill, contains important insights about medical billing practices that are relevant to personal injury litigation, and medical debt litigation.  This article not only should be read, but it should be kept on file for training purposes. 

On the defense side, it is commonplace for medicals to be the foundation for the evaluation of worst case exposure of a claim, and of a reasonable settlement range.  Therefore if the medical bills are grossly inflated, the amount paid on the claim will be too.  It's common knowledge that health care providers charge extra to cover the cost of care provided to the uninsured, but Brill's article is shocking because it shows that medical bills are inflated many times beyond that.

On the plaintiff's side, the incentive to question the gross amount of medical bills arises with a vengeance after a settlement is reached, and negotiation of the medical liens begins. 

It is estimated that over 60% of personal bankruptcies are due to medical bills

Brill's article is a roadmap of the various ways in which the "sticker price" of medical care is egregiously inflated.  The article also contains references to medical billing advocates, who are a breed of consultants who provide critical analysis of the charges in medical bills and who can help negotiate compromises on the bills.  These consultants may have relationships with the Alliance of Claims Assistance Professionals or Medical Billing Advocates of America.   The medical billing advocates mentioned in the article include Katalin Goenez; Beth Morgan, Patricia Stone; and Patricia Palmer.


Metrobus Drivecam Systems

I've previously remarked that litigation arising from Metrobus accidents is now starting to feature video from drivecam systems on the buses.  WTOP has recently posted more detail about Metrobus drivecam systems, including sample videos that they have obtained from Metro.  The video from the drivecam system is clearly something that has to be pursued in discovery in any collision involving a bus, and further, the existence of such evidence should be pursued in any litigation involving a commercial vehicle.  (Hat tip to Christopher Mitchell.)

Decrease in numbers of civil jury trials in D.C.

DRI has published an article summarizing a Florida report concerning the decline in jury trials, and the ramifications of that decline.  Based on an analysis of statistics done in 2004, "in 1962, 11.5% of 50,320 civil federal court dispositions were by trial.  In 2002, there were only 1.8% dispositions by trial, out of 258,876."  The negative effects of this decline are at least two-fold: ordinary citizens play less of a role in government, and jury trial experience is harder to come by for lawyers.  A panel of the Florida bar expressed concern that the decline in citizen jury experience could cause a deline in confidence in the court system.

A quick look at the statistics of the D.C. Superior Court confirms this trend.  The D.C. Superior Court' Civil Division reported the following numbers of judgments from jury trials between 1999 and 2010:

Year    Number of civil jury judgments

1999        299

2000        269

2001        228

2002        219

2003        165

2004        164

2005        131

2006        217

2007        214

2008        118

2009        106 

2010        115

There has been a similar decline in Virginia, as has been noted elsewhere.  Numerous federal judges have commented on the trend.

The reasons for this decline include costs and a poor economy of course, but also better and more active management of dockets by the courts.   That development has been mirrored, at least on the defense side, by skillful management of litigation by insurers and business litigants. 

The amended diversity jurisdiction statute and removal before service

Last month I noted the amendment of the federal diversity jurisdiction statute.  For an overview of the amendments, see Federal Jurisdiction and Venue - New Legislation Takes Effect.  There is also an interesting analysis of this legislation on the Drug and Device Law blog, concerning the impact of the amendment on the issue of removal before service of the non-diverse defendant.  (For a discussion of this tactic, see Removal to Federal Court Before Forum Defendant Is Served.) The argument concerning the amendment is, in essence, that Congress, by re-enacting the same key provision in the amended statute, has effectively ratified the validity of pre-service removal.  I plan to follow this to see how the courts react to this argument.

The restyled Federal Rules of Evidence became effective on Dec. 1

The Federal Rules of Evidence were restyled, and the new version became effective on December 1, 2011.  Here is a link to the restyled version of the Rules, which is defnitely worth reading.   As a sample, the restyled version of Fed. R. Evid. 702 is as follows:

Rule 702. Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in the
form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand
the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and
methods; and

(d) the expert has reliably applied the principles and
methods to the facts of the case.

A copy of the Report of the Advisory Committee can be found here, and discusses in some detail the contributors to the effort to make the Rules more easily understandable.  Among other things, Bryan Garner's legal style guide was used in the rewrite of the Rules.

As reported by BeSpacific.com, there are also amendments to the Federal Rules of Appellate, Bankruptcy, and Criminal Procedure which also became effective on Dec. 1.  

How to use Google's search by image function

Here are step by step instructions to use Google's search by image function, from Slaw.  Basically, go here and upload your image by clicking on the camera icon.  Maybe someday soon if you somehow acquire a photo of a party or a witness, you will be able to run a search by image on it and find things posted on the internet under a user name. Right now, I don't think Google has its facial recognition software running with this seach.

Hat tip to Future Lawyer for the link.

Twombly-Iqbal standard adopted by the District of Columbia Court of Appeals (again)

The District of Columbia Court of Appeals has again adopted the pleading standards under Rule 8(a) as construed in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).  See Potomac Dev. Corp. v. District of Columbia, No. 10-CV-632 (D.C. Sept. 15, 2011), slip op. at 18 & n. 4. 

The Court had previously adopted the plausibility standard in Mazza v. HouseCraft, LLC, 18 A.3d 786 (D.C.), which was vacated as moot, 22 A.3d 820 (D.C. 2011) thanks to a settlement between the parties there.

In the Potomac Development decision, the Court noted that "Because of the persuasiveness of the vacated opinion in Mazza, we draw on it here."

Quoting Iqbal, the Court stated that Rule 8 does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.


Superior Court Motor Vehicle Tracks V1, V1 fast, V2, and V2 fast

The Superior Court for the District of Columbia has adopted special tracks for motor vehicle cases, called Track V1, Track V1fast, Track V2, and TrackV2 fast.  However, the Court doesn't seem to have posted any differentiated case management order on its website describing the tracks.  The best I could find is a description of the various Track V's which is an attachment to Form CA 113.

Absolute privilege in Maryland extended to attorney's verbal statements to press about a newly filed class action

In Norman v. Borison, ___ A.3d ___ (Md. April 22, 2011), the Maryland Court of Appeals held that lawyers who published copies of their state complaint to the press before it was filed in court, and made oral statements to the press about the suit, then republished filed versions of their federal complaints on the internet, were protected by an absolute privilege.  However, the Court's holding on this contained a warning that lawyers who choose to try their cases in the press may do so at some peril:

We are not prepared to say that plaintiffs are prohibited from promoting preemptively their class action suit, before they have been certified as such, or that they must avoid verbal communications to the press in doing so — provided framing the suit as a "class action" status is not shown to have been a subterfuge for funneling defamatory statements to the press. Such public promotion, under the latter proviso, is not part of the proper prosecution of most tort claims. Indeed, but for the fact that the mortgage rescue scam suit was striving to become a class action, our conclusion might have been different. The Kennedy adage retains vitality — lawyers who try their cases in the media do so at some peril. See Kennedy, 229 Md. at 99, 182 A.2d at 58.

Maryland Court of Appeals explains how to analyze possible prejudice from error in civil jury instructions

In Barksdale v. Wilkowsky, ___ A.3d ____ (Md. May 23, 2011), the Maryland Court of Appeals reversed a defense verdict in a Baltimore City lead paint poisoning case, due to prejudicial error in the jury instructions.  In doing so, the Court reviewed Maryland law as to when an error in jury instructions is reversible error, and when it is harmless error. 

In the lead paint poisoning trial, the trial court gave an instruction regarding the joint responsibilities of landlords and tenants in keeping the property in good condition. This instruction was essentially the reading of a provision in the Baltimore City Housing Code.  The Court found that this instruction was error, because neither the plaintiff's contributory negligence nor negligence of her family members were at issue in the case.  The Court of Appeals found that this instruction was prejudicial, because it may have permitted the jury to speculate, or may have precluded a finding of liability where it was otherwise appropriate.

The Court of Appeals found that the jury instruction as to the occupant's duty to keep the dwelling in a clean and sanitary provision had no relevance to the issues at trial.  The plaintiff was a child when she lived in the dwelling, and whether or not her grandmother kept the house clean was irrelevant.  Under Maryland law, negligent acts of a parent cannot be imputed to a child, and such negligent acts that merely contribute to an injury do not necessarily rise to the level of a superseding cause.

Although there are a limited number of circumstances where prejudice is presumed, ordinarily a party in a civil case complaining of an erroneous jury instruction must show prejudice.  It is not enough, in those circumstances, to show that prejudice was possible; rather, the appellant must show that prejudice was probable.  Erroneous jury instructions which are misleading, distracting, or which permit the jury to speculate as to improper issues which are dispositive, are prejudicial.  The appellant can meet its burden of showing prejudice by showing the nature of the erroneous instruction and its relation to the issues in the case.  Based on that, the reviewing court can weigh the "materiality of the error and the potential that it poisoned the jury deliberations."

The Court of Appeals further stated that consideration of the following four factors, borrowed from a California case, are "helpful":

(1) the degree of conflict in the evidence on critical issues; (2) whether respondent's argument to the jury may have contributed to the instruction's misleading effect; (3) whether the jury requested a rereading of the erroneous instruction or of related evidence; . . . and [4] the effect of other instructions in remedying the error.

 In the case at bar, the Court of Appeals found that the error touched the heart of the litigation, and that it could not be sure that the erroneous instructions were "cured" by the correct instructions when both were presented to the jury as equals.  The Court found that the appellant carried her burden of showing prejudice.

This decision is now one of the crucial authorities to consider when analyzing the strength of an appeal based on an erroneous civil jury instruction.