Practical Consideration for the Non

Transcription

July 2016
Quarterly
The Ohio Association for Justice
OAJ members touch on key issues, recent decisions, and legislative
changes affecting different areas of practice.
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Ab Initio | Employment Law | Family Law | Federal Courts | Insurance Law | Mass Torts |
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July 2016
1
Quarterly
July 2016
Editor: Michael S. Miller
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President-Elect: Rich Brian
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Treasurer: Ellen McCarthy
Secretary: Bob Wagoner
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Subrogation Webinars: 4 Day Series
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July 2016
3
Welcome New & Returning Members
Steven C. Babin
Federal Court of Appeals
Columbus, OH
Virginia Y. Fox
Fox & Fox Co., LPA
Amelia, OH
Patrick J. Osborne
Kelley & Ferraro, LLP
Cleveland, OH
Dennis A. Becker
Becker & Cade
Loveland, OH
Peter Friedmann
The Friedmann Firm, LLC
Columbus, OH
Laura P. Pollard
Bordas & Bordas, PLLC
Wheeling, WV
Marianna B. Bettman
Cincinnati, OH
Richard P. Gableman
Attorney at Law
Cincinnati, OH
April L. Proctor
Kisling, Nestico and Redick
Akron, OH
Lauren A. Gribble
Tzangas Plakas Mannos, Ltd.
Canton, OH
Shaun A. Putman
Putman Law Offices, LLC
Van Wert, OH
Christine M. Hammond
Gregory S. Young Co., LPA
Cincinnati, OH
James Rozic
Attorney at Law
Cincinnati, OH
Brendan Healy
Thorman Petrov Group Co., LPA
Cleveland, OH
Erin Schmidt
Bevan & Associates LPA, Inc
Boston Heights, OH
Paul J. Hess
Philip J. Fulton Law Office
Columbus, OH
Mark A. Schneider
Attorney at Law
Cleveland, OH
Abbie Hogan
Charles Zamora Co., LPA
Columbus,OH
Christopher J. Stefancik
Bevan & Associates LPA, Inc.
Boston Heights, OH
Robert M. Johnson
Law Office of Jeremy M. Burnside, LLC
Portsmouth, OH
Michael J. Stewart
Sandusky, OH
Carley R. Kranstuber
Agee, Clymer, Mitchell & Portman
Columbus, OH
Meaghan L. Tague
Bordas & Bordas, PLLC
Wheeling, WV
John D. Lambert
Lambert & McDonald Co., LPA
Akron, OH
Ziad K. Tayeh
Norman & Tayeh, LLC
Cleveland, OH
Deneen LaMonica
Ziccarelli & Martello
Cleveland, OH
Aaron J. Tompkins
Columbus, OH
Nikolay G. Markov
Law Office of Jeremy M. Burnside, LLC
Portsmouth, OH
Michelle Traska
Traska Law Firm ,LLC
Cleveland, OH
Stacy A. Meloun
Agee, Clymer, Mitchell & Portman
Columbus, OH
Jeffrey Travis
Travis Law Group
Hillard, OH
Walter Messenger
Mancini Law Group, P.C.
Columbus, OH
Ashley C. Wakefield
Tzangas Plakas Mannos, Ltd.
Canton, OH
Timothy P. Misny
The Law Offices of Timothy P. Misny
Willoughby, OH
Elizabeth Watson
Toledo, OH
Janaya T. Bratton
Gerhardstein & Branch
Cincinnati, OH
Erin L. Burton
Columbus, OH
Joseph A. Butkovich
Clements, Taylor Butkovich & Cohen
Cincinnati, OH
Gloria P. Castrodale
Gloria P. Castrodale, LLC
Columbus, OH
Lindsey Cavese
Holland, OH
Barkan
Jason C. Cox
Meizlish Handelman
DeRose Wentz, LLC
Columbus, OH
Goodin
Patricia R. Cuthbertson
The Becker Law Firm, LPA
Elyria, OH
Meghan E. Darah
Hawley Law Co., LPA
Cincinnati, OH
Joshua M. Dolesh
Tsilimos Dolesh & Peña LLC
Brecksville, OH
Titus G. Donnell
The Donnell Law Group, LLC
Columbus, OH
Shannon Draher
Nilges Draher LLC
Canton, OH
John N. Ellem
Ellem Law Office
Parkersburg, WV
Donna Jean Evans
Sandusky, OH
4
Chair Nate Stuckey
7. TranscriptPad ($89.99) – App used to read, review, search,
and annotate legal transcripts, such as deposition transcripts,
more efficiently.
8. TrialPad ($129.99) – Organize and access your evidence
for trial more quickly and efficiently. The better organized
and prepared you are, the more you can focus on your
presentation, cross-examinations, and the arguments and
evidence presented by opposing counsel.
USING TECHNOLOGY TO ADVANCE YOUR PRACTICE
Philip J. Leppla, Esq. & Miranda R. Leppla, Esq., Dayton, OH
Technological advances and mobile/tablet legal apps cannot, and
will not, ever replace the traditional requirements of the legal
professional—dedication, hard work, persuasive writing, sweating
the details, professionalism, ethics, or zealous representation of our
clients, to name a few. Abraham Lincoln is correct that “a lawyer’s
time and advice are his [or her] stock in trade”, and the tools
available today can amplify our ability to provide clients with the
best advice, as efficiently and effectively as possible.
To represent a client as effectively as possible, it is wise to utilize all
tools at your disposal, including using Internet research (Google,
social media, etc.), legal research platforms, apps, and practice
management software. Though technology will never be a substitute
for understanding the practice of law, effective use of the available
technological advances can elevate your practice, through better
organization and efficiency, and enhance research capabilities.
Below is a list of some of the tools that we recommend to enhance
your practice.
Apps for Mobile Devices/Tablets
1. LogMeIn (Free) – Access your desktop and office server from
anywhere you have Internet capabilities.
2. Dropbox (Free basic version; Professional version $8.25/
month; Business version $12.50/month) – Cloud-based app
safely and securely stores files, and allows syncing with your
desktop. Files are then accessible from anywhere with Internet
access and are simple to share with clients and colleagues.
3. Box (Free app, pricing varies if using for a group) – Similar to
Dropbox, Box permits you to view, edit and share your files
securely in the cloud. Great for collaboration.
4. JotNot Pro ($4.99) – Turn a photo of a document into PDF.
Essentially like having a scanner in your pocket.
5. iJury ($19.99) – Designed to assist in organizing voir dire. Much
quicker than using a pen and paper, can be easily shared with
your colleagues, and can store jury information in one place.
6. iJuror ($14.99) – Designed to assist during voir dire to track
jurors seating charts, alternates, peremptory challenges, and
challenges for cause.
AB INITIO
Ab Initio
9. TrialDirector (Free) – Evidence management and presentation
tool for trial. You can create case folders, add exhibits, interact
with your evidence using annotation and presentation tools,
etc.
10. Timeline 3D ($9.99) – Designed for creation of a 3D timeline
presentation. This is a great way to present images and can
provide a powerful, interactive historical list of events.
11. Evernote (Free) – Excellent app for taking notes, creating to-do
lists, and document storage, all of which can be synced between
different devices, including your phone, tablet and computer.
12. Form Tools PDF ($4.99) – Allows you to upload form
documents, such as fee agreements, contracts, etc., which
can then be signed on the tablet and saved or emailed for
safekeeping.
13. Notability ($5.99) – Very useful app for taking notes and
annotating documents. It is easy to import documents, such
as a deposition transcript, and mark-up, highlight, search, etc.
The edited or annotated document can then easily be shared
with your colleagues.
14. Westlaw Case Notebook Portable E-Transcript (Free) –
Similar to Notability, it can be used to review and annotate
E-transcripts, anytime, anywhere. It also makes searching
transcripts quick and easy.
15. Keynote ($9.99) – Apple’s presentation app which is similar to
PowerPoint. It is perfect for opening and closing arguments.
Case Management Software
1. MyCase – This is the case management software that our
firm uses. It is relatively inexpensive, streamlined, and user
friendly. The cloud-based case management software includes
convenient features that allow for the organization of cases
and matters, contact information, task list management,
document storage, legal billing, timing keeping, calendaring,
and payments. It also easily integrates with QuickBooks.
www.mycase.com
2. Clio – Similar to MyCase, Clio includes features such as
document management, billing, time-tracking, task manager,
integration with Dropbox, Box, Outlook, and QuickBooks, etc.
It is slightly more expensive than MyCase. www.goclio.com
3. 3. Other similar options – Rocket Matter, CasePacer,
Amicus Cloud, and many others.
Ab Initio Section Article Continued on Page 15...
July 2016
5
Insurance Law
INSURANCE LAW
OHIO INSURANCE LAW: A THROWBACK PERSPECTIVE
ON THE PAST, PRESENT, AND FUTURE.
Bob Kerpsack, Esq., Columbus, OH
I believe it was a Thursday—a Throwback Thursday if you will—
when I received the call from President Paul Grieco, appointing
me chairperson of the Ohio Association of Justice Insurance Law
Section—again. You see I held this same position in 1998 and 1999.
In fact, in 1998, the late Past President Tom Henretta presented
me with a Distinguished Service Award for organizing a series of
insurance law seminars with some of the largest attendance in this
association’s history (think UM coverage by operation of law). Yes,
during my first term as section chair, the membership lined up in
droves to learn the latest consumer-friendly insurance case law
being churned out by the Ohio Supreme Court. Of course, this was
before the days of online listservers and webinars. Ah, the good
ol’ days. In all likelihood, I am not going to be able to return us
to those glory days of yesteryear, but I can tell you that I accepted
the role of section chair—again—because there is again consumerfriendly insurance law for our membership to learn and share.
THE PAST
During the late 1990’s and early 2000’s, the hottest area of Ohio
insurance law was probably un/underinsured motorist (UM/
UIM) coverage provided by operation of law. At that time, Ohio’s
UM statute included a mandatory express offering and rejection
of UM coverage for all motor vehicle liability insurance policies.1
Homeowners’ policies, commercial general liability policies,
and umbrella policies were all found by Ohio appellate courts to
be motor vehicle liability insurance policies subject to the UM
statute.2 The Ohio Supreme Court also found employees and
their family members to be insureds under corporate employers’
business auto policies, regardless of whether they were involved in
a business-related crash.3 Also during this era, the Ohio General
Assembly seemed to be enacting legislation to supersede every
consumer-friendly insurance decision issued by the Ohio Supreme
Court.4 The General Assembly eventually amended the UM statute
to eliminate the mandatory express offering/rejection of UM/UIM
coverage.5 In Snyder v. Am. Family Ins. Co.,6 the Ohio Supreme
Court interpreted this stripped-down version of the former UM
statute to mean that an insurer “may, but is not required to”
include UM/UIM coverage in a motor vehicle liability insurance
policy. Thus, we entered the era of “negotiated” UM/UIM coverage
conditions, exclusions, and limitations.
6
Chair Bob Kerpsack
As the volume of UM/UIM claims in Ohio declined, subrogation
enforcement by insurers was rising sharply. In response to the
federal Deficit Reduction Act of 2005, the Centers for Medicare
and Medicaid Services (CMS) also became much more aggressive
in tracking and enforcing the federal first-priority statutory rights
of subrogation/reimbursement (without notice) against enrollees’
tort settlements. More and more employers also responded to
skyrocketing health insurance premiums by converting to selffunded employee benefits plans established under the federal
Employee Retirement Income Security Act of 1974 (ERISA).7 As
a result, a growing body of employer-friendly federal case law was
holding longstanding consumer-friendly Ohio subrogation law (i.e.
common fund doctrine, made whole doctrine, double-recovery
rule, etc.) to be preempted by ERISA. The ERISA subrogation
frenzy probably came to a peek when the United States Supreme
Court issued its decision in U.S. Airways, Inc. v. McCutchen.8
In McCutchen, the Supreme Court upheld an “equitable lien
by agreement,” finding that equitable defenses cannot alter the
unambiguous terms of a written plan document. In a strange twist
in McCutchen, however, only the U.S. Airways Summary Plan
Description (SPD)—not the actual Plan Document—contained a
reimbursement provision. This was significant because the U.S.
Supreme Court has consistently held that a SPD does not establish
the terms and conditions of an ERISA plan.9
THE PRESENT
On January 20, 2016, the U.S. Supreme Court issued another pivotal
decision in an ERISA subrogation case. In Montanile v. Board of
Trustees of the National Elevator Industry Health Benefit Plan,10
the Supreme Court found that when an ERISA-plan participant
wholly dissipates a tort settlement on non-traceable items (i.e.
food, services, travel, etc.), the plan may not bring suit to attach
the participant’s separate assets because only “appropriate equitable
relief ” is authorized by ERISA. But in the Sixth U.S. Circuit, a
personal injury attorney’s contingent fee is considered to be a
traceable item to which an ERISA Plan’s equitable lien attaches.
See The Longaberger Co. v. Kolt.11 Also not to be forgotten is that,
even in an era of consumer-friendly federal or state subrogation
law, an ERISA plan may still withhold benefits until a participant
acknowledges and/or pays a plan’s claimed right of subrogation/
reimbursement.
Recently, the Ohio General Assembly enacted a consumer-friendly
anti-subrogation statute, R.C. 2323.44. The statute imposes a prorata sharing of less-than-full-value tort recoveries. The statue
became effective as to automobile insurance policies on December
22, 2015; however, the statute will not be effective as to health
insurance policies or plans until January 1, 2017. Regardless,
this statute is having an immediate impact on the willingness of
automobile insurers to compromise their med pay subrogation/
reimbursement claims.
THE FUTURE
Even though Ohio’s recently-enacted anti-subrogation statute
expressly states that it is applicable to insurance companies,
Insurance Law Section Article Continued on Page 15 ...
Chair Rebecca Gillissie
are at an historic high of 1.1 million. The average processing time
for these claims has climbed to 530 days.
SOCIAL SECURITY AND MEDICARE TRUSTEES RELEASE
ANNUAL REPORT
Rebecca R. Gillissie, Esq., Cleveland, OH
The Social Security and Medicare Trustees Annual Report was
released June 22, 2016. Projections regarding funding and viability
of the government’s largest program remained largely unchanged
from last year. As in its 2015 annual report, the trustees maintain
that without congressional action, the fund will be depleted in
2034.
In its 80-year history, the combined Old Age and Survivor Insurance
(OASI) and Disability Insurance (DI) trust funds have collected
$19.0 trillion, and paid out $16.1 trillion, leaving a surplus of $2.8
trillion at the end of 2015. Optimists laud this surplus, claiming
that the fund remains strong and effective, paying benefits on
time and in full. Others warn of crisis if measures are not taken to
address the fund’s projected long-term shortfall.
The projected depletion by 2034 considers the OASI and DI
funds combined. Considered separately, the trustees project that
the OASI fund will be depleted in 2035, and the DI fund will be
depleted in 2023. This depletion does not mean that retirees and
disabled beneficiaries would receive nothing by these respective
dates. Rather, the funds will have only enough revenue to pay a
percentage of the individual’s qualified benefit amount. For OASI,
79% of scheduled benefits could be paid in 2035. For DI, 89% of
the scheduled benefits could be paid in 2023. As such, at these
rates, a retiree receiving $2000 per month, would receive $1580 per
month.
Again, this projected long-term shortfall is based on the status
quo, or lack of meaningful policy change. Congress has various
options to address this shortfall, including raising the payroll tax
rate, increasing the cap on payroll taxes from the first $118,500.00
in wages, or cutting benefits. While none of these options are
popular, changes will likely be necessary to maintain the viability
of the fund. Also challenging is the amount of time it will take to
implement these changes to have meaningful impact. For example,
the retirement age was raised by congress from 65 to 67 in 1983,
and was not fully implemented for seventeen years, or until 2000.
Aside from the critical question of sustainability of the trust fund,
Social Security faces additional issues in quality of service and
processing claims. Chief among these is the backlog of disability
claims pending at the hearing level. Claims pending at this level
Office of Disability
Adjudication and Review
(ODAR)
Akron
Cincinnati
Cleveland
Columbus
Dayton
Toledo
Average Processing Time
490 days
625 days
508 days
549 days
433 days
431 days
SOCIAL SECURITY
Social Security
Hearing processing times in Ohio (9/26/15-5/27/16) Source:
ssa,gov
In order to address this growing backlog, Social Security created
the Compassionate and Responsive Service (CARES) Initiative
earlier this year. Objectives of this initiative include:
·
·
·
·
·
·
·
Hiring of 250 Administrative Law Judges (ALJs) each year
through 2020
Expanding the teams of agency attorneys to screen cases
for on the record decisions
Increasing the use of pre-hearing conferences
Promoting a more “robust” screening program in which
claims would be returned to the state agency for further
review and decision
Creating more ODAR office space for video hearings
Use of Administrative Appeals Judges (AAJs) to hear
non-disability related issues
Allowing claimants to file electronic appeals at the
Appeals Council
While these measures would improve processing times, and
promote better quality of decisions, full implementation of this
plan is unlikely in the foreseeable future. First, some of these
initiatives will require regulatory changes. Further, Social Security
will likely operate under continuing resolution, or CR, through the
better part of 2017, providing the same amount of funding as the
previous fiscal year. Assuming CR level funding, the agency will
not have the money to implement the CARES initiative.
Budget issues will also impact other aspects of claim processing.
A hiring freeze could be imposed, and overtime hours would likely
be cut, further hindering the processing of claims at the initial
levels of adjudication.
Meaningful change is necessary to remedy these issues. Congress
must give serious consideration to policy options to circumvent
imminent instability of both the OASI and DI trust funds. In
addition to providing for the long-term viability of these programs,
lawmakers must address the immediate issues of lengthy processing
times and quality of adjudication in order to preserve this vital
program, which provides to millions of the aged and disabled in
order to meet basic needs.
July 2016
7
Federal Courts
FEDERAL COURTS
Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 119 S. Ct. 1661,
143 L. Ed. 2d 839 (1999)
NO “DISAGGREGATION” OF TITLE VI DISCRIMINATION
CLAIMS IN THE SOUTHERN DISTRICT
Sonia T. Walker, Esq., Columbus, OH
Merriam Webster defines ‘disaggregate’ as the separation of a whole
into component parts. To disaggregate instances of discrimination
under Title VI, for purposes of summary judgment, is a ‘no-no’ in
the Southern District of Ohio.
Many oppositions to summary judgment often include a “throw in
the kitchen sink” type of analysis. In response, the moving party
tries to over-simplify matters in a way that prevents the Plaintiff
from ever seeing a jury. In Title VI cases, this is particularly
apparent when numerous incidents are used to support claims
of discrimination. When student-on-student discrimination is
alleged, the Southern District rejected Defendants’ plea to consider
each incident in isolation.
The case of Brooks v. Skinner, 139 F. Supp. 3d 869 (S.D. Ohio
2015) involves three biracial students who alleged a pattern of
discrimination over a five year period. For each of the incidents that
were documented by the School District, there existed disciplinary
reports of the offending students without further evidence of
repeat behavior by the same students. At first glance, it appears that
the Defendant School District satisfied their burden in addressing
the racial discrimination within the school. However, rather than
analyzing the School’s response to the individual incidents, the
Sixth Circuit considered the learning environment as a whole when
partially rejecting Defendants’ Motion for Summary Judgment.
Title VI claims of student-on-student harassment contain three
elements:
{
8
Chair Jim O’Brien
1.) The racial harassment must be so severe, pervasive, and
objectively offensive that it deprives plaintiff of access to
educational opportunities or benefits,
2.) The school had actual knowledge of the harassment, and
3.) The school was deliberately indifferent.
...the moving party tries to over-simplify
matters in a way that prevents the Plaintiff
from ever seeing a jury. In Title VI cases,
this is particularly apparent when numerous
incidents are used to support claims of
discrimination.
}
In its Motion for Summary Judgment, the Defendant School in
Brooks argued that not one of the incidents, standing alone, was
severe or pervasive enough to deprive the Plaintiffs of access to
educational opportunities. 139 F. Supp. 3d 869, 884 (S.D. Ohio
2015). The School further argued that it was not deliberately
indifferent because students were disciplined and they stopped
harassing Plaintiffs. Id. “However, the Court finds that this framing
of plaintiffs’ claims is contrary to law.” Id. Instead, the Court directs
us to a prior Sixth Circuit holding where “the issue is not whether
each incident of harassment standing alone is sufficient to sustain
the cause of action in a hostile environment case, but whether—
taken together—the reported incidents make out such a case.”
Williams v. Gen. Motors Corp., 187 F.3d 553, 562 (6th Cir. 1999)
(emphasis in original) (analyzing a hostile environment claim
under Title VII.) Brooks, 139 F. Supp. 3d 869, 884 (S.D. Ohio 2015).
While the Defendant School could hardly deny knowledge of its
own discipline reports, some of the harassment occurred after the
filing of the Plaintiffs’ complaint.1 The evidence showed that the
discrimination may have stopped with the individual students but
continued within the school system. Considering the totality of
the circumstances, the Court quoted the Sixth Circuit decision of
Patterson v. Hudson Area Sch., 551 F.3d 438, 448 (6th Cir. 2009),
stating, “[E]ven though a school district takes some action in
response to known harassment, if further harassment continues, a
jury is not precluded by law from finding that the school district’s
response is clearly unreasonable. We cannot say that, as a matter of
law, a school district is shielded from liability if that school district
knows that its methods of response to harassment, though effective
against an individual harasser, are ineffective against persistent
harassment against a single student. Such a situation raises a
genuine issue of material fact for a jury to decide.” Brooks, 139 F.
Supp. 3d at 884.
Under the approach argued by the Defendants, every student could
discriminate against a minority student at least once, suffer some
discipline, and not repeat the harassment. With approximately nine
hundred students in Plaintiffs’ schools, the Plaintiffs would have to
endure significant harassment before the School Board would be
forced to reconsider the effectiveness of their policies. Ultimately,
the Brooks’ Court refused to consider each incident in isolation and
instead let a jury decide as to the pervasiveness of the harassment
and the effectiveness of the Defendants’ response. “[I]n considering
whether summary judgment is appropriate, and with these
principles in mind, the Court will not disaggregate the incidents
of harassment plaintiffs experienced at [Defendant] schools.” Id.
Endnotes
1. “A court may consider evidence of post-complaint harassment that “arise[s]
out of the scheme that was the focus of the pleadings, . . . [is] directly related
to the earlier violation, and [will not result in] undue prejudice to the
defendants.” Brooks v. Skinner, 139 F. Supp. 3d at 884, quoting, Jund v. Town
of Hempstead, 941 F.2d 1271, 1287 (2d Cir. 1991).
HOW TO HAVE A GREAT PROFESSIONAL RELATIONSHIP
WITH DOMESTIC RELATIONS CLIENTS
Bradley N. Frick, Esq., Columbus, OH
Domestic relations clients are people who are never at their best
and when we work with them they are very much in need. In
order for the attorney/client relationship to work we must be very
good at what we do – from the first impression to the termination
of the relationship. There is certainly more than one way to handle
DR clients but I will outline a method that I guarantee will work.
1. Never do an initial interview over the phone unless the client
is out of state or more than two hours away. You get only one
first impression and both attorney and client need to make
it face to face. Unless you are someone who takes absolutely
everyone who comes to you (don’t ever be that person!)
ALWAYS meet the client in person, in your office, NEVER
at another site. And remember, your liability attaches when
you give a person advice. Don’t get sued by someone who has
never paid you anything and claims they relied on what you
told them. It happens.
2. Always charge for the initial consultation. If you don’t want
to spend half of your day giving free advice to strangers who
can’t pay you, charge for your initial consultation. Make them
commit something, at least one-half of your hourly rate. If
they say they can’t afford that, wish them good luck.
3. Get them into your office asap. Nothing disappears faster
than a DR client who THINKS they have an emergency! Call
today, gone tomorrow unless you get them in!
4. Control the initial consultation. Every client you will ever
intake will tell you their life story and take as much time as
you give them – hours if you don’t assert yourself. Take charge
from the first moment. Here’s how:
a. I can see from your interview sheet why you are here
and I know you have a lot to tell me. I guarantee I
will answer most if not all of your questions before you
leave but before I can do that I need some background
information: what was your date of marriage (if any)?
Date of separation? Children? Names and ages?
Domestic violence?
Drug or alcohol addiction?
Social media?
b. Goals? I know you want to tell me the history of the
relationship but before you do, let’s skip to the bottom
line: What do you want to achieve? This is a “wish
list,” so don’t be inhibited by what ANYONE has told
you, even other lawyers.
Chair Chris Trolinger
i. Terminate the marriage?
ii. Custody (decision making)?
iii. Parenting time?
iv. Child support?
v. Spousal support?
vi. Property division?
vii. Other goals?
c. Let’s go back through those goals and make sure you
and I are on the same page. Remember, this is a “wish
list” and don’t hold back!
d. Now, if your spouse were here how would he/she
answer the above questions.
e. Now let’s compare the answers and see how many
issues we have. Go back through each issue.
5. Analyze all of the goals of both parties.
a. For example, if it appears that the parties may agree
on virtually ever issue (often wishful thinking), they
may have a dissolution, which will save time and
money. On the other hand they may disagree on
almost everything and if the disagreements are in the
area of custody, property division (significant separate
property issues) & spousal support, you know it’s
probably a contested divorce.
b. Be realistic. They don’t hire us to Blue Sky them.
c. Lower every expectation you can – right to the “who’s
side are you on?” level. If you later bring in results
ABOVE the expectations you are a hero. If you don’t
you’re a loser and will never get a referral from that
client and worse yet the referral source (the most
important people in your professional life) may never
refer anyone to you again!
6. Estimate cost and time frames:
a. For example, if the case is contested with custody and
parenting issues, or if there are addiction or mental
health issues, we know we will spend at least two weeks
(80 hours) spread over the next 18 months (Rules of
Superintendence Guideline).
b. NEVER estimate by hours, always by days or weeks.
So, if you think it’s an eighty hour MINIMUM (always
quote a minimum, NEVER quote a maximum or flat
rate) do the math for the client. If you charge $200/
hour the minimum fee for 80 hours is $16,000. Then
quote your retainer (all of that? Half of that? ).
c. Make sure the client understands that your fee does
NOT include costs and experts, guardians and court
reporters. That will be a minimum of an additional
$500 or $1,000 (be realistic, they will appreciate that in
the long run). If a guardian ad litem could be involved,
add that cost.
d. Quote your retainer and stand by it. Don’t bargain. IF
THEY WANT YOU THEY WILL FIND A WAY TO
PAY YOU. And if they don’t pay your retainer that’s a
good thing. After all, when do you want to know that
you’re not going to be paid?
FAMILY LAW
Family Law
Family Law Section Article Continued on Page 16...
July 2016
9
Trucking Safety
TRUCKING SAFETY
Forward Collision Warning is the most basic, simply alerting
drivers (both audibly and visually, on an in-cab display) that a
rear-end collision is imminent. Adaptive Cruise Control allows a
truck to maintain a set time-gap between it and a vehicle in front
of it, by automatically decelerating if the other vehicle slows down,
and re-accelerating (up to a set speed) if the other vehicle speeds
up or switches lanes. The most advanced systems alert drivers
to potential conflicts with objects AND automatically initiate
emergency braking stopping the commercial vehicle from a rearend collision or reducing the severity of it.
AUTOMATIC EMERGENCY BRAKING – PREVENTING
TRUCK CRASHES WITH FORWARD COLLISION
AVOIDANCE AND MITIGATION TECHNOLOGY
Andy Young, Esq., Cleveland, OH
On July 1, 2016, the National Highway Traffic Safety
Administration (“NHTSA”) reported a 7.7% increase in motor
vehicle crash deaths for 2015.1 Ohio is listed in a region that saw
an alarming 9% increase in traffic fatalities.2 The report includes
statistics for crashes of all types including commercial motor
vehicles, passenger vehicles, motorcycles, bicycles and pedestrians.
This article focuses specifically on forward collision safety
technology available to reduce the number of rear-end collisions
and fatalities caused by commercial trucks.
The top three causes of truck crashes are rear-end collisions,
lane departures, and rollover accidents.3 Original equipment
manufacturers continue to introduce safety technology to prevent
each of the top three causes of crashes including automatic
emergency braking, lane departure warning, and electronic stability
control systems to prevent rollover crashes. Rear-end collisions
are listed as the top cause of truck crashes annually, accounting
for approximately 33,000 or 23.1% of all truck wrecks.4 Automatic
braking technology is proving to have great success at preventing
rear-end collisions. It is anticipated that once automatic braking
technology is mandated by regulation, rear-end collisions will no
longer top this list.
15 Years of Forward Collision Technology
Early collision warning systems have been in existence for well
over a decade. Penske Logistics announced on September 18, 2001
(15 years ago) that they were installing collision warning system
equipment on its entire tractor fleet.5 At that time, Penske Logistics’
Vice President of Safety, Paul Pentazer, was quoted as stating, “we
feel so strongly about the benefits...we now include it as standard
equipment on all new tractor orders.”6 This older technology did
not include automatic emergency braking. Forward collision
warning technology (without automatic braking) simply emits an
urgent audible alert with a driver display to warn the driver of an
impending collision or that the driver’s following distance is unsafe.
Collision Warning / Mitigation encompasses three related
technologies: 1) Forward Collision Warning / Alert Systems; 2)
Adaptive Cruise Control; and, 3) Collision Mitigation Systems.7
10
Chair Josh Leizerman
On-board radar is mounted in the front bumper to detect vehicles
up to 500 feet in front of the truck.8 Earlier radar systems could
only track metallic vehicles, and had a tendency to miss smaller
vehicles, such as motorcycles and bicycles. Radar systems were also
unable to detect pedestrians. Newer improved technologies use
a camera-based system that have enhanced detection capabilities
that will detect pedestrians and bicyclists.9
Speeding is also a cause of rear-end collisions. Last year, advanced
technology was revealed wherein cameras have now been installed
in new trucks that read posted speed limits signs.10 The technology
then compares the posted speed limit to the truck’s current speed.
An audible alert is issued to the truck driver when the truck is more
than 5 mph over the posted speed limit. If the truck is more than 10
mph over the speed limit, the audible alert is accompanied with a
one-second speed reduction (automated engine throttle reduction)
to slow down the truck and further get the driver’s attention.11
Choosing to Stop Short
The choices made by a truck company’s fleet acquisition personnel
determine whether or not a potential defendant truck company
cares to stop short of a fatal crash. Forward Collision Avoidance
and Mitigation (“FCAM”) technology with automatic emergency
braking is currently available as a market option when purchasing
heavy equipment from an original equipment manufacturer.12
The truck safety community would like government regulators
to make this market option mandatory. By choosing to install
FCAM technology, a trucking company’s purchasing decision can
dramatically reduce the number of preventable rear-end collisions
or at the very least, reduce crash severity and likely prevent a
fatality. Bendix’s Wingman Advance® and Meritor WABCO’s
OnGuard® are the two leading FCAM options available to install
on fleet equipment.
According to Dean Newell, Vice President of Safety, Maverick
USA, “we have seen a clear downward trend in rear-end incidents
since we started putting OnGuard systems on our trucks...our
rear-end accidents were at a rate of 0.09 per million miles in 2008,
and they went down to 0.06 per million miles in 2011.”13 Scott
Manthey, Vice President of Safety for Interstate Distributors (a
1,500 unit motor carrier) served on a 2016 panel discussion and
indicated that the majority of his company’s fleet now has forward
collision technology.14
Trucking Safety Section Article Continued on Page 16...
THE UNSETTLED LAW OF WHAT CONSTITUTES A
MEDICAL CLAIM UNDER R.C. 2305-113
Chris Patno, Esq., Columbus, OH
Legal Analysis
In 2016, after many years of legislative amendment and common
law interpretation, one would expect the definition of “medical
claim” to be clear and determined. However, such is not the case and
often requires a multi-prong test. “Medical claims” are defined by
R.C. 2305.113(E)(3). This section broadly includes claims “against
any employee or agent of a physician, podiatrist, hospital, home, or
residential facility... that arises out of the medical diagnosis, care
or treatment of any person.” Medical diagnosis, care and treatment
are not defined. Using this statute and interpreting it as written,
one could assume that a hospital pharmacy whose employees
negligently fill a prescription written by a physician could only be
sued in Ohio for medical malpractice and not general negligence.
However, such an assumption would be wrong in the Stark County
courtroom of Judge Kristin G. Farmer.
On June 6, 2016, Judge Farmer applied R.C. 2305.113(E)(3) in
this very scenario in the case of Yerkey v. Spectrum Orthopaedics,
Inc., et al., Stark County Court of Common Pleas Case No. 2016CV-00794 when she denied a Motion to Dismiss. In Yerkey,
the issue before the Court was whether the claim against the
pharmacist was a medical claim pursuant to R.C. 2305.113(E)(3).
Judge Farmer found that had the General Assembly intended to
include claims against a pharmacist it would have done so. Current
listed providers under R.C. 2305.113 are physicians, podiatrists,
hospitals, homes, residential facilities, CPNs, RNs, APNs, PTs,
EMTs, dentists, optometrists and chiropractors. Psychologists,
occupational therapists, acupuncturists, medical assistants, general
office staff and many other types of ancillary individuals not listed.
The Court further found that the misfill claim did not arise out
of medical diagnosis, care, or treatment and denied the Motion to
Dismiss letting the case proceed as one of general negligence.
In light of this ruling, and discussion of it in the medical negligence
community, I conducted a review of the case law in this regard to
see how other courts have been dealing with this issue. The review
has revealed that other Ohio courts have made similar findings
of common law negligence in assessing whether the claim before
it is one of medical malpractice. In Christian v. Kettering Med.
Ctr., 2016-0hio-1260, 2016 Ohio App. LEXIS 1178 (Ohio ct. App.
Montgomery County Mar. 25, 2016) the second Appellate District
Chair Chris Patno
found that injury resulting from the movement of a patient by a
registered nurse in front of a hospital, from a privately owned car
to a hospital wheelchair, prior to any interaction with diagnostic
staff, did not constitute a medical claim. Even though the Christian
nurse testified the wheelchair transfer required specific medical
skill, the Court found that since there was no discussion of the
Plaintiffs medical condition while the transfer was happening,
the act of transfer was too attenuated from the receipt of medical
treatment, care, and diagnosis to constitute a medical claim. The
Court also focused on the fact there was no medical treatment or
diagnosis at the time and the need to transfer the patient from the
private vehicle to the wheelchair was done without a doctor’s order.
MEDICAL NEGLIGENCE
Medical Malpractice
The Seventh District Court of Appeals in Haskins v. 7112 Columbia,
Inc., 2014-0hio-4154, 20 N.E.3d 287, 2014 Ohio App. LEXIS
4068 (Ohio Ct. App., Mahoning County, 2014), while making a
judgment on the pleadings, held that the changing of bed sheets
in a nursing home that resulted in injury also did not constitute a
medical claim. In Haskins, the injured party was bedridden and the
staff was required to change the sheets while she was still in bed.
The Court found the claim to be one of common negligence since
two people changing sheets had no particular skill or expertise
outside of common knowledge. Further, the victim was not being
prepared for any sort of medical procedure and the action was not
ordered by a doctor.
The First District Court of Appeals in Conkin v. CHS-Ohio Valley,
Inc., 2012-0hio-2816,2012 Ohio App. LEXIS 2467, 2012 WL
2367391 (Ohio Ct. App. Hamilton County June 22, 2012) was asked
to determine whether the use of medical equipment involved a
medical claim. The care in issue involved a transfer from a wheelchair
to a Hoyer lift. In a two-prong test the Court assessed first whether
the equipment was used to prevent or alleviate a physical or mental
defect or illness. Essentially, whether the equipment was inherently
a necessary part of a medical procedure or if it arose out of a
physician ordered treatment. Second, the Court assessed whether
the equipment required a certain amount of professional expertise
or skill to use it. The Court found the claim to be one of common
law negligence even if the Hoyer lift was used to alleviate problems
associated with range of motion since there was no indication the
use of the lift was an inherent part of a medical procedure or that it
arose out of physician ordered treatment. The Court also noted the
evidence was unclear whether the transfer from wheelchair to the
Hoyer required medical expertise or skill.
The Fourth District Court of Appeals adopted some of the First
District’s Conklin assessment in McDill v. Sunbridge Care Enters.,
2013-0hio-1618, 2013 Ohio App. LEXIS 1503, 2013 WL 1716748
(Ohio Ct. App., Pickaway County Apr. 11,2013). In McDill, a
rehabilitation patient was being assisted by two aides while washing
her hands when she fell and was injured. The Court found the claim
to be one of common law negligence since the injury did not arise
out a medical diagnosis, care, or treatment. The victim also was not
being transferred to or from a medical procedure.
Medical Malpractice Section Article Continued Online at www.
oajustice.org/MedicalMalpractice
July 2016
11
Employment Law
EMPLOYMENT LAW
The NLRB has since insisted on its interpretation and has continued
to strike down class waivers in employment agreements. Ignoring
federal decisions, it issued a second decision in Murphy Oil USA,
Inc., 361 NLRB 72 (2014), to reinforce its D.R. Horton ruling. In
October 2015, the Fifth Circuit reversed Murphy Oil (Murphy Oil
USA, Inc. v. NLRB, No. 14-60800 (5th Cir. Oct. 26, 2015)) (and the
NLRB’s en banc petition was denied without recorded dissent).
SEVENTH CIRCUIT AGREES WITH NLRB ON
UNENFORCEABILITY OF CLASS ACTION WAIVERS IN
EMPLOYMENT AGREEMENTS
Dan Petrov, Esq., Cleveland, OH
Over recent years, the National Labor Relations Board (“NLRB”)
and state and federal courts have danced back and forth in a
struggle over the enforceability of arbitration agreements that
require employees to waive the right to pursue labor law and
wage and hour related class and collective actions. That struggle
continues to percolate in 2016, as the Seventh Circuit released
a decision in June upholding the NLRB’s position that such
agreements are unenforceable, and increasing the tension between
federal appellate circuits on the same question.
Since its 2012 decision in D.R. Horton, Inc., 357 NLRB 184, NLRB
has consistently maintained that the National Labor Relations Act
(“NLRA”) prohibits arbitration agreements that require employees
to waive the right to pursue labor-related class and collective
actions, even if those provisions allow employees to opt out of the
waiver. The NLRB has held that such agreements violate the NLRA
by unlawfully restricting employees’ rights to engage in protected
concerted activity.
Many state and federal courts have rejected the NLRB’s position and
upheld class action waivers. Courts have done so by concluding
that the NLRA or FLSA includes no congressional mandate
for an employee’s right to engage in class actions; therefore, the
Federal Arbitration Act prevails. In 2013, the Fifth Circuit used
this reasoning and overturned the Board’s D.R. Horton decision
(D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013). The
Second, Eighth, Ninth, and Eleventh Circuits followed suit and
rejected D.R. Horton in upholding class action waivers. (Sutherland
v. Ernst & Young, LLP, 726 F.3d 290 (2d Cir. 2013); Owen v. Bristol
Care, Inc., 702 F.3d 1050 (8th Cir. 2013); Richards v. Ernst & Young,
LLP, 734 F.3d 871 (9th Cir. 2013); Walthour v. Chipio Windshield
Repair, 745 F.3d 1326 (11th Cir. 2014)).
{
12
Chair Dan Petrov
Lewis stands in directly conflict
with D.R. Horton and the other Fifth
Circuit rulings, meaning we now have
a clear split between the 7th and 5th
Circuit, which only the Supreme Court
can resolve.
}
Undeterred, the NLRB has continued to hold firm. In 2015, the
Board issued 35 decisions finding arbitration agreements unlawful
based on the D.R. Horton and Murphy Oil decisions. The Board
issued 15 of those rulings in the second half of December alone.
Employers have brought at least two of these decisions back to the
Fifth Circuit for review, which likely will follow its past decisions
reversing the NLRB.
In June 2016, the NLRB won its first victory in a federal appellate
court on this issue, when the Seventh Circuit upheld the Board’s
position on class waivers. In Lewis v. Epic Systems, the 7th Circuit
considered a mandatory arbitration agreement, which: (1) required
that wage-and-hour claims could be filed only through individual
arbitration and that the employees waived “the right to participate
in or receive money or any other relief from any class, collective, or
representative proceeding;” (2) included a clause stating that if the
“Waiver of Class and Collective Claims” was unenforceable, “any
claim brought on a class, collective, or representative action basis
must be filed in a court of competent jurisdiction;” and (3) “deemed
[employees] to have accepted this Agreement” if they “continue[d]
to work at Epic,” with no option to opt-out of the agreement and
remain employed.
The plaintiff claimed that Epic misclassified him as exempt
and unlawfully refused him overtime pay, and sued in federal
court, challenging the arbitration agreement under section 7
of the NLRA. The 7th Circuit agreed with him, finding that the
arbitration agreement violated the plaintiff ’s rights under Section
7 of the NLRA. Lewis stands in directly conflict with D.R. Horton
and the other Fifth Circuit rulings, meaning we now have a clear
split between the 7th and 5th Circuit, which only the Supreme
Court can resolve. The Board to this point has shown no interest
in approaching the Supreme Court for review of this question.
Given the split in circuits, only the nation’s highest court can fully
resolve the matter. In the meantime, the NLRB will likely enforce
its aggressive stance against arbitration agreements that limit class
or collective actions for employment-related claims.
While the majority of federal courts to consider the issue have
ruled in favor of class action waivers, the Seventh Circuit’s June
2016 ruling has given new life to the Board’s position. Given the
steadfastness with which the NLRB has struck down class action
waivers in arbitration agreements, plaintiffs with potential class
or collective actions and arbitration agreements are wise to file an
unfair labor practice charge with the NLRB. This is particularly
true in the Sixth Circuit, which has not yet considered the issue.
Chair Corey Artin
Venue and Filing Lawsuits
Most MDL’s are not in Ohio. Recently, Ohio District Courts have
received two major MDL’s. DePuy ASR MDL 2197 was consolidated
in the Northern District of Ohio in front of Judge Katz in 2010.
The C8 Litigation, MDL 2433, was consolidated in the Southern
District of Ohio front of Judge Sargus in 2013. However, it is far
more common for a litigation to be consolidated in an out-of-state
District Court. New clients must understand that their case will
not be filed in Ohio.
PRACTICAL CONSIDERATIONS FOR THE NON-MASS
TORT ATTORNEY
Corey Artim, Esq., Vandalia, OH
Introduction
This article will provide a brief overview of key practical
considerations to consider when a client is retained because
of a claim subject to a MDL. This article will point out some
fundamental distinctions between traditional PI cases and a mass
tort case.
Client Communication
Initial client communication is essential when retaining a new
client with a mass tort case. There are significant differences
between mass tort cases and other legal cases that a client may have
been exposed to in the past. Educating a new client and managing
client expectations from the beginning will pay dividends later.
First, it is important to educate new clients on the MDL process. It
is common for complex MDL cases to last five or more years from
intake to resolution. This is much longer than most legal cases that
a new client may have been exposed to in the past.
Second, because cases can span years, keeping clients informed
of the progress in the case is important. Regular update letters or
emails, updating the client on their specific case as well as general
litigation updates, establish a clear channel of communication and
prevent problems later in the cases.
Finally, it is likely that a client will move or change phone numbers
during the pendency of the case. Often, there are short deadlines
and you must be able to communicate quickly and efficiently with
clients. If there has been a history of efficient communication over
the course of the representation, you will be confident that you have
correct contact information when you need critical information
from your client.
At some point during the case, many clients will apply for or ask
about a lawsuit loan. Most lending companies do not lend on mass
tort cases due to their belief that the cases are too risky or too
speculative. Client education is critical. Mass tort cases often last
for years, so the amount ultimately due on a small loan taken out
at the beginning of a case can triple or even quadruple when the
case concludes. It is important to advise the client of this to avoid
problems at settlement.
MASS TORTS
Mass Torts
Inevitably, when a client finds out that their case will be filed in
a different state, one of the next questions is “will I have to go
to Court there?” Generally, and almost certainly, the answer is
no (except, possibly, for bellwether trials, discussed in the next
paragraph). Even in the unlikely event the client is required to
appear for a deposition, the client will be deposed where the client
resides. The MDL is created for pretrial proceedings only. In the
rare event that cases do not reach resolution in the MDL, they can
theoretically be remanded to the Plaintiff ’s home district for trial.
Another common question is “when will my case go to Court?”
Nearly all MDL cases are resolved without a trial. In a litigation
with 10,000 Plaintiffs, only a handful, if any at all, will ever see
trial. These trials in an MDL are known as bellwether trials since
they are designed to give guidance to the parties for settlement
negotiations. Traditionally, Plaintiffs’ leadership counsel selects a
handful of cases and the Defendants select the same number of
cases. From that pool, the Court will select the cases to be prepared
for trial.
Discovery
Discovery is also handled differently in most mass tort cases.
Plaintiffs do not complete traditional interrogatories or respond to
traditional document requests. Instead, Plaintiffs each complete a
Plaintiff Fact Sheet or “PFS” which contains streamlined written
questions and general requests for documents. A PFS does not look
like traditional discovery. Instead, they look more like worksheets
and often contain charts, check boxes, and simple yes or no answers.
Failure to complete a PFS in compliance with Court deadlines
established by Pretrial Orders can mean dismissal of the case.
There are likely to be dozens of depositions in any given MDL.
The majority of these are expert depositions, company employee
depositions, or 30(b)(6) persons most knowledgeable depositions.
Individual Plaintiffs will only be noticed for a deposition in a
bellwether or accelerated trial process.
Settlement
MDL cases reach resolution very differently than other PI cases.
Recently, the trend has been to settle entire litigations in bulk
and use a third party settlement administrator such as Garretson,
BrownGreer, or Providio to evaluate claims and administer
settlements.
Mass Torts Section Article Continued on Page 17...
July 2016
13
Workers’ Compensation
WORKERS’ COMPENSATION
FIREFIGHTERS STILL FIGHTING FOR THEIR LIVES AND
STILL WAITING FOR THE PRESUMPTIVE CANCER BILL
TO PASS
Karen Turano, Esq., Columbus, OH
Recently, the Ohio Senate overwhelmingly passed S.B. 27. Sadly,
this decisive action by the Senate does not make the presumptive
law any more attainable for these men and women firefighters
serving the public at the present time. The bill is now in the
House which will not reconvene until November 2016, after the
election. The House is where the Bill will be met with considerable
opposition.
A quick overview of the Bill: Senate Bill 27 provides that a
firefighter who is disabled as a result of specified type of cancer
is presumed for the purposes of the laws governing workers’
compensation and the Ohio Police and Fire Pension Fund to have
incurred the cancer while performing his or her official job duties.
The Bill also allows for this presumption to be rebutted upon
presentation of competent or affirmative evidence to the contrary.
Further, the bill allows, for the purpose of OP&F disability, for the
bills presumption to be rebutted if the cancer was revealed during
the firefighters’ entrance physical exam. This bill also specifies
certain cancers which will be included in the presumption and
requires a three year minimum assignment to hazardous duty
which means “duty performed under circumstances in which an
accident could result in serious injury or death.”
One of the reasons the Bill is being contested is the cost that
the BWC’s former Administrator as projected as reasonably
attributable to each cancer claim. The BWC projected that total
cost to be $87 million. This cost included an exceedingly high
mortality rate on each of the cancers. Therefore, 39% of the
projected cost was allocated to death benefits. The BWC included
in the calculation that temporary total disability benefits would
be paid for an entire 5 year period in each claim. The expected
impact of this extremely high dollar amount certainly will almost
certainly have the BWC’s desired result by misleading the voting
representatives who will ultimately decide the fate of the bill. This
projected cost can hardly be an accurate portrayal of claim costs.
The BWC did not account for the fact that many cancers, like
prostate cancer (which has less than a 1% mortality rate) are not
terminal. In addition, treatment and complete disability are not
likely to last 5 years.
14
Chair Karen Turano
The Ohio Municipal League opposed the bill stating the
scientific evidence relied upon to support the causal link between
firefighters and cancer is flawed. The Municipal League presented
evidence from various studies which did not find a link between
the firefighting occupation and an increased level of cancer. The
League failed to provide an explanation for the studies which
did support a connection. The League relied upon the testimony
of Attorney Kris Kachline from Pennsylvania who defends
employers from these cancer claims. Pennsylvania law provides
a presumption for firefighters, volunteer and professional, for all
cancers which is certainly different than the proposed Senate Bill
27.
In summary, Ohio firefighters are still a long way from the
passage of any presumptive/protective cancer law. In the
meantime, they will continue to need and seek treatment through
their private insurance and use their earned sick time off for
treatment of their work-contracted cancers. OAJ is actively
supporting this bill which would provide support though the
BWC claims for these firefighters. Please reach out to your
legislator and urge them to support this bill which will make the
BWC claims process more attainable for these men and women in
their public service.
Section Articles Continued
...Ab Initio Section Article Continued from Page 5
Legal Research Platforms – All young lawyers tend to be familiar
with these research platforms, as generally all law schools make
them available to their students.
1. LexisNexis Advance – Our firm uses LexisNexis Advance.
LexisNexis Advance has been revamped in recent years and is
more similar to WestlawNext than ever before. Both platforms
are very good and can help an attorney get the job done well.
It often comes down to which you are most comfortable with,
and which has the better deal available at the time.
2. WestlawNext – Our firm formerly used WestlawNext. It was
a great platform to use and made research a breeze. However,
it does tend to cost more than LexisNexis Advance. With
LexisNexis’ improvements in recent years, it’s tough to ignore
...Insurance Law Section Article Continued from Page 6
self-funded plans, and anyone else claiming a right of subrogation
by contract or common law, it remains to be seen whether courts
are going to find the state statute to be preempted by the federal
ERISA statute. On this issue, federal case law is just beginning
to emerge, finding similar state anti-subrogation statutes to
apply to self-funded ERISA plans. Roche v. Aetna, Inc.12 is a class
action against a self-funded plan and its subrogation collector,
The Rawlings Company, in which a federal district court in the
Third U.S. Circuit held on March 1, 2016, that New Jersey’s antisubrogation statute applies to self-funded plans under ERISA’s
savings clause. Similarly, in Wurtz v. The Rawlings Co., LLC,13 the
Second U.S. Circuit Court of Appeals held in 2014 that the New
York anti-subrogation statute was “saved” from ERISA preemption,
finding that the state statute permissively regulates insurance and
its application to the self-funded plan does not disturb ERISA’s goal
of providing national uniformity.
Another body of federal case law that is emerging addresses whether
Medicare Advantage (MA) Plans—which are provided by private
insurance companies—enjoy the same federal first-priority right
of subrogation/reimbursement (without notice) that is created by
federal statute and regulation in favor of CMS.14 Currently, there
is a split among the U.S. Circuit courts of appeal as to whether MA
plans may bring their own private reimbursement actions. On
this issue, the Third U.S. Circuit Court of Appeals held in 2012
in In re Avandia Marketing, Sales Practices and Products Liability
Litigation15 that the “plain text” of the Medicare Secondary Payor
(MSP) statute’s private cause of action provision16 sweeps broadly
enough to include MA plans. In 2003, the Sixth U.S. Circuit Court
of Appeals held in Care Choices HMO v. Engstrom17 that there is
no federal cause of action under the MSP statute for MA plans
seeking reimbursement; however, the statute does not prohibit an
MA plan to include a contract provision making the MA plan a
secondary payer with the same reimbursement rights as CMS. Not
to be forgotten is that Engstrom was decided before 2005 and 2010
amendments to the federal regulations governing MA plans, which
expressly added provisions that MA plans may (not mandatory)
exercise the same rights to recover that the CMS exercises under
the difference in cost when the performance between the two
products is very similar.
3. Casemaker – While not being as impressive or having as
many bells and whistles as Lexis Nexis or Westlaw’s platforms,
Casemaker is useful when you know exactly what cases you
need to find. It is free with an Ohio State Bar Association
membership. In addition, it provides access to Ohio Jury
Instructions and case law from additional states, while a multistate plan with Lexis Nexis or Westlaw can set you back a fairly
large monthly amount.
Disclaimer: This article is not meant as an advertisement for the
apps, platforms, or software listed above, but merely the writers’
suggestions regarding how these tools could be useful in your
practice.
the MSP regulations, that the MA standards supersede any state
laws or regulations with respect to the MA plans, and that MA
plans have the right to seek reimbursement from tort recoveries
and MA plan enrollees.18 Only time will tell whether all MA plans
enjoy the same super-liens as Medicare, regardless of the MA plan’s
contractual language.
PERSPECTIVE
I liken chairing the OAJ Insurance Law Section at this point in my
career to having another child late in life—or maybe a grandchild.
Just like caring for a child, I have no doubt that chairing this section
again will come with its challenges. However, the practice of
insurance law in Ohio has always been challenging—and probably
always will be. My goal over the next year is to rekindle more of the
same enthusiasm the members of this organization had for Ohio
insurance law when I was a young(er) lawyer. As trial lawyers, I
believe we can and will make a difference in Ohio insurance law
over the next year.
Endnotes
1. former R.C. 3937.18
2. Goettenmoeller v. Meridian Mut. Ins. Co., 10th Dist. Franklin No. 95APE11‑1553,
1996 Ohio App. LEXIS 2764, 1996 WL 362089 (June 25, 1996); Selander v. Erie
Ins. Group, 85 Ohio St.3d 541, 709 N.E.2d 1161 (1999); and Scott-Ponzer v.
Liberty Mut. Fire Ins. Co., 85 Ohio St.3d 660, 710 N.E.2d 1116 (1999)
3. Scott-Pontzer and Ezawa v. Yasuda Fire & Marine Ins. Co. of Am., 86 Ohio
St.3d 557, 715 N.E.2d 1142 (1999)
4. S.B. 20, effective October 20, 1994; H.B. 261, effective September 3, 1997; S.B.
57, effective November 2, 1999; and S.B. 267, effective September 21, 2000
5. S.B. 97, effective October 31, 2001
6. 114 Ohio St.3d 239, 2007-Ohio-4004
7. 29 U.S.C. §1132(a)(3)
8. 569 U.S. ___, 133 S. Ct. 1537, 185 L. Ed. 2d 654 (2013)
9. CIGNA Corporation v. Amara, 563 U.S. ___ (2011), 131 S. Ct. 1866, 1878
(2010); Accord McCutchen, 133 S. Ct. at 1543 n. 1
10. 577 U.S. ___ (2016), 136 S.Ct. 651 (2016)
11. 586 F.3d 459 (6th Cir. 2009)
12. No. 13-1377, 2016 U.S. Dist. LEXIS 252082016, WL 797553, (D.N.J. March
1, 2016)
13. 761 F.3d 232, 243–44 (2d Cir. 2014)
14. See 42 U.S.C. §1395y(b)(2)(B)(iii) and 42 C.F.R. §411.26
15. 685 F.3d 353 (3d Cir. 2012)
16. 42 U.S.C. § 1395y(b)(3)(A)
17. 330 F.3d 786 (6th Cir. 2003)
18. See 42 C.F.R § 422.108(f); 42 C.F.R. § 422.402; and 42 C.F.R. § 422.108
July 2016
15
...Family Law Section Article Continued from Page 9
Before you do the work or after you’re done (and
you’re holding a large receivable). In an era of credit
cards, accessible loans, caring l parents and helpful
family members, the potential client WILL find a way
to pay you if you have handled the intake correctly.
e. Make sure the client knows these cases take time –
sometimes 18 to 24 months.
f. Use a good, plain English fee agreement.
7. Explain the six elements of every case:
a. The facts.
b. The law.
c. The procedure
d. The attorneys (especially if you know who opposing
counsel is).
e. The witnesses. Be honest here – is the potential client a
good communicator? Good eye contact? Responsive
to questions? Over talker? Sincere? Honest? Credible?
If they are not a good communicator, tell them you
have to work on this; if they are good communicators
praise them
f. The Decision Makers – judge, magistrate, guardian ad
litem. Makes sure they know the role of each and their
importance.
Make sure they realize that ONE of the above is more
important than the other five combined and why that is
so. (Of course you know it’s the judicial officer, right?)
8. Close the order. Tell them how you are retained – with a
signature on your Fee Agreement and the payment of their
retainer – and ask when they would like to get started. If you
are not closing at least 8 out of 10 you are doing something
wrong.
...Trucking Safety Section Article Continued from Page 10
The results have been a significant reduction in yearly rearend collisions that were historically in the teens now down to
just a few.15 Jim Boyd, manager of fleet technical services at
Southeastern Freight (a 3,000 unit motor carrier), utilized both
Bendix and Meritor WABCO collision avoidance systems and has
given them a positive review. He has been quoted as stating, the
systems “might not completely help you avoid a crash, but they
certainly can take some of the speed out of a crash. We feel like our
success with the systems has already made a positive impact on
accident reduction.”16
Trucker, Collin Copeland, posted on twitter that, “seeing the
speed of a car up to 300 yards ahead of you is nice.”17 He further
commented that, “it will also slow you down if you get cut off or
if you come up on someone too fast.”18 An FMCSA study found
that between 8,597 and 18,013 rear-end crashes could be prevented
annually through the use of Forward Collision Warning systems.19
This same study found that rear-end crashes cost on average
16
9. Follow up! Communication is the most important thing we
do. Here’s how:
a. Immediately after the initial consult, draft a follow
up letter that contains all of the goals discussed, your
guesstimate of the minimum amount of time it will
take, the retainer amount, and cost estimate. Include
how to reach you, your hours, where to park, who
to communicate with in your absence, your usual
turnaround time (24 hours – remember, we are in
the “Expectation Business” and if you quote a shorter
time you have to live up to that) and anything else
you deem necessary to properly document the initial
consultation. This letter is the Blue Print for the future
relationship-your time should be spent on achieving
the goals and only the goals! As you proceed in the
case you check them off. At the conclusion of the case
first discuss and then send them a letter reviewing the
goals accomplished.
b. Do a “Day After” call, to see if they have any
additional questions. Clients LOVE PROACTIVE
communication. Show them you care and that you are
organized and attentive.
c. Always do a “Day Before” call for all things important:
court appearances, depositions, GAL meetings, etc.
d. Always do a “Day After” call after every important
event to see what the client saw and heard. You’ll be
amazed what you hear, ranging from “I see it the same
way ” to “were you and I at the same hearing yesterday
because that’s not what I heard!!” Either way you need
to hear what they have to say and nip problems in the
bud or further solidify an already good relationship.
This call is critical.
10. Do the above and have a good relationship!
Let me know what you think and if this process worked for you!
On February 5, 2016, the American Trucking Associations (ATA)
published a public comment stating that “ATA strongly believes
that preventing rear-end crashes is a far better strategic goal than
mitigating them and strongly recommends that all vehicles (light
and heavy) be equipped with forward collision warning and
mitigation braking technology.”21 The fact that this is the public
position of the ATA should assist in proving that the industry
standard is to exercise the safest available option to install FCAM
technology with new equipment purchases.
The National Highway Traffic Safety Administration along with
the Virginia Tech Transportation Institute recently completed a
year-long test of trucks equipped with collision avoidance systems. The test was a success involving 150 trucks, more than 100
drivers, from 7 unidentified motor carriers traveling and producing 3 million miles of data, with no rear-end crashes.22 NHTSA
reported that the fleet safety managers would recommend crash
avoidance system technology with new fleet acquisitions.23
On October 16, 2015, NHTSA granted a petition submitted by
truck safety advocates “to establish a safety standard to require
automatic forward collision avoidance and mitigation systems on
certain heavy vehicles.”24 The granting of this petition along with
the positive results published in the field study increase the likelihood of an upcoming regulatory FCAM mandate.
Practice Tips
The aforementioned can be drawn upon to establish that purchasing FCAM technology is already industry standard, particularly if the subject-crash involves a newer truck. Participate in
an inspection of the truck, even in a rear-end crash. The original
equipment manufacturer’s “Driver’s Manual” should be inside
the truck. In fact, the manuals often state, “keep this manual in
the vehicle at all times.”25 Look for and capture a photograph
of the driver’s manual. The manuals themselves have their own
designated part number so that you can order a copy or have
it produced through a production of documents request at a
later date. This author participated in an inspection of a newer
Freightliner following a rear-end collision. The driver’s manual
revealed an entire section entitled “Driver Assistance Features”
outlining Technology for Forward Collision Avoidance and
Mitigation. During written discovery, retail pricing was produced
for the various types of obstacle detection systems available for
purchase. The “WABCO OnGuard Collision Warning Adaptive
Cruise Control and Collision Mitigation” and “Detroit Assurance
Collision Warning, Adaptive Cruise Control, Collision Mitigation and Active Brake Assist with Adjustable Headway Control”
ranged in price between $4,000.00 and $5,000.00.26 This is a small
price to pay to avoid a highway fatality. Be mindful, the manuals
also include various warnings – that the “system is not a substitute
for safe normal driving procedures, nor will it compensate for any
driver impairment such as drugs, alcohol or fatigue.”27
All too often we hear about a truck driver who is drowsy,
distracted, drunk or drugged causing multiple fatalities. For
example, on June 25, 2015, truck driver Benjamin Brewer was
reported to have been awake for 55 hours straight and on methamphetamine when he caused six fatalities after rear ending seven
vehicles that had stopped in a construction zone.28 Truck driver
John Wayne Johnson was charged with a rear-end crash that took
the lives of five Georgia Southern University nursing students and
severely injured two others in an April 2015 crash.29
The American Association for Justice’s Trucking Litigation Group
(“AAJ TLG”) is asking its members to inquire, at deposition, with
each safety director, operations manager, and truck company
owner as to whether or not the defendant truck company has and/
or is actively purchasing FCAM technology. The Truck Safety
Section of OAJ should assist the AAJ TLG in efforts to keep track
of this information. If the truck company does not utilize available technology, then this presents an opportunity at the time
of settlement to require the defendant truck company to begin
FCAM purchases as part of the global resolution. Together, one
truck case at a time, we can all work on behalf of our clients’ best
interests to net the best possible result AND make the roads safer
to prevent a repeat tragedy by pushing in favor of FCAM technology. Automatic emergency braking technology is certain to
prevent truck crashes and lower the number of highway deaths in
the future.
Endnotes
1. The United States Department of Transportation, National Highway Traffic
Safety Administration, “Traffic Safety Facts Crash Stats” DOT HS 812 269, July
2016, https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812269.
2. Id. at page 3.
3. James Hedlund and Daniel Blower, The Large Truck Crash Causation Study
(LTCCS) Analysis Series: Using LTCCS Data for Statistical Analyses of Crash
risk, January 2006, Office of Information Management, Publication #: FMCSARI-05-037, “Table 4 - Estimated Number of Trucks in Crashes by Crash Type.”
4. Id.
5. “Penske Logistics to Install Eaton® Vorad® Collision Warning System
Throughout Tractor Fleet Following Successful Pilot Program with
Whirlpool Corporation.” Published September 18, 2001, http://www.
prnewswire.com/news-releases/penske-logistics-to-install-eatonr-voradrcollision-warning-system-throughout-tractor-fleet-following-successfulpilot-program-with-whirlpool-corporation-72060747.html
Note to Reader: The Vorad from Eaton was acquired by Bendix Commercial
Vehicle Systems, LLC (an Elyria, Ohio based company) in 2009.
6. Id.
7. Freightliner Cascadia’s Driver’s Manual, Publication Number STI-478-6
(2/13), Part Number STI 478, Page 6.1, Daimler Trucks North America, LLC.
8. Meritor
WABCO
“OnGuard”,
http://www.meritorwabco.com/
Product,2,15,2,OnGuard%e2%84%a2-Collision-Safety-Systems-.aspx;
Bendix “Wingman Advance”, http://www.bendix.com/en/products/acb/
wingmanadvanced_1.jsp
9. “Development of a Camera-Based Forward Collision Alert System” General
Motors Company and Mobileye Vision Technologies, Ltd.; http://www.mobileye.
com/technology/applications/vehicledetection/forward-collision-warning/.
10. “Bendix Takes Wingman Collision Avoidance Tech To Next Level, Includes
Auto Slowdown for Speeding.” Overdrive, http://www.overdriveonline.com/
bendix-takes-wingman-collision-avoidancetech-to-next-level-includes-autoslowdown-for-speeding/.
11. Id.
12. A Bendix Commerical Vehicle Systems, LLC publication indicates that
the Bendix® Wingman® ACB (Active Cruise Control with Braking) has
been made available as a purchase option when ordering a tractor from
one of the following: Peterbilt, Kenworth, Mack, International, and Volvo.
“Bendix - Helping to keep highways safer with advanced active safety
solutions.” http://www.bendix.com/media/documents/products_1/acb_1/
bw2757aoeproductsalescodes.pdf
13. “Anti-Crash Systems Proliferate as Fleets See Safety Benefits,” Transport
Topics, January 23, 2012 (Transport Topics Publishing Group, a division of
American Trucking Association, Inc.).
14. May 5, 2016 Truck Underride Roundtable, Hosted by AnnaLeah & Mary
for Truck Safety, The Truck Safety Coalition and the Insurance Institute
for Highway Safety (attended by nearly 100 researches, safety advocates,
policymakers and industry representatives) to address problems of underride
truck crashes, Ruckersville, Virginia. Scott Manthey, Vice President of Safety,
Interstate Distributors, was a panel member at this conference to add his
knowledge regarding rear impact guards and rear-end collisions. This author
was the Moderator for that panel discussion.
15. Id.
16. Eric Miller, “Collision Avoidance systems Succeed in NHTSA Field Test,”
Transport Topics, page 23, June 20, 2016 (Transport Topics Publishing
Group, a division of American Trucking Association, inc.).
17. Twitter, Collin Copeland, @memorywillrust, self-described “OTR (overthe-road) Truck Driver,” responded to a question that this author posted
on twitter on August 6, 2013 asking truckers about their experience with
Forward Collision Warning Systems.
18. Id.
July 2016
17
19.
20.
21.
22.
23.
24.
25.
26.
27.
Benefit-Cost Analyses of Onboard Safety Systems,” by Amy Houser (MCRRT), February, 2009, Federal Motor Carrier Safety Administration Office
of Analysis, Research and Technology.
Id.
Ted Scott, Director of Engineering, American Trucking Associations,
February 5, 2016 Public Comment on NHTSA Federal Motor Vehicle
Safety Standards: FMVSS No. 223 and 224 Rear Impact Guards, Rear Impact
Protection, DOCKET NO. NHTSA-2015-0118. https://www.regulations.
gov/document?D=NHTSA-2015-0118-0015
The United States Department of Transportation, National Highway Traffic
Safety Administration, “Field Study of Heavy-Vehicle Crash Avoidance
Systems” DOT HS 812 280, June 2016; Eric Miller, “Collision Avoidance
Systems Succeed in NHTSA Field Test,” Transport Topics, June 20, 2016,
Page 1 (Transport Topics Publishing Group, a division of American Truck
ing Association, Inc.).
Id.
The United States Department of Transportation, National Highway
Traffic Safety Administration, Grant of Petition for Rulemaking, “Federal
Motor Vehicle Safety Standard; Automatic Emergency Braking.” DOCKET
NO. NHTSA-2015-0099, October 2015.
Freightliner Cascadia’s Driver’s Manual, Publication Number STI-478-6
(2/13), Part Number STI 478, See Introduction, Foreword, Daimler Trucks
North America, LLC.
Freightliner Cascadia’s Data Book, Section 30 Instruments and Controls,
Version: 4.20, Page 8 of 20, Daimler Trucks North America, LLC. This
document was produced during litigation. Please contact this author for a
copy.
Freightliner Cascadia’s Driver’s Manual, Publication Number STI-478-6
(2/13), Part Number STI 478, Page 6.1, Daimler Trucks North America,
LLC.
...Mass Torts Section Article Continued from Page 13
These settlement programs raise many ethical considerations, most
of which are beyond the scope of this article. Settlements vary
wildly. Some, such as DePuy ASR, have a base amount from which
the settlement value can go up or down based on the strengths
and weaknesses of each case. In NuvaRing, each signature injury
was assigned a value. In the recent Actos settlement, there were
no values given. Counsel could calculate the number of points a
claimant may receive but could not determine even an approximate
value.
No matter what method is used in a bulk settlement the most
important ethical consideration is informed consent, required by
Model Rule 1.8 and the Ohio Rules of Professional Conduct. Each
client must consent in writing to the settlement and be provided
full disclosure of the terms, process, and general circumstances
surrounding the settlement. Each client must be in a position to
make an informed decision to either participate or walk-away from
a settlement.
Conclusion
These are just a few of the unique issues to consider when retaining
a new client whose claim may belong in an MDL. All are important
considerations for any firm with a mass tort case.
18
28.
29.
Shelly Bradbury and Alex Green, “Death on the Highway: Six People Died
When A Tractor-Trailer Slammed Into Traffic on June 25 – But the Crash
Was One of Many, And It Will Happen Again,” Chattanooga Times Free
Press, December 20, 2015.
David Elfin, “Driver, Company Indicted in 2015 Truck Crash That Killed
Five,” Transport Topics, page 23, June 20, 2016 (Transport Topics Publishing
Group, a division of American Trucking Association, Inc.).

Practical Consideration for the Non

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