presented by The South Carolina Bar

Continuing Legal Education Division

Personal Injury Essentials

Friday, August 21, 2020

www.scbar.org

Table of Contents

Agenda ...................................................................................................................................... 3

Speaker Biographies ............................................................................................................... 5

Networking: Getting the Clients ............................................................................................ 9

Case Evaluation ....................................................................................................................... 13

Case Intake .............................................................................................................................. 19

Medical Records/HIPAA ........................................................................................................ 34

Demand Letters ....................................................................................................................... 52

Lien Negotiation ...................................................................................................................... 68

Filing Suit/Service of Process ................................................................................................. 124

Offers of Judgement ................................................................................................................ 146

Written Discovery ................................................................................................................... 150

Legal and Trust Accounting Rules ........................................................................................ 175

Depositions ............................................................................................................................... 181

Depositions of Medical Professionals .................................................................................... 196

Mediation ................................................................................................................................. 202

Expert Witnesses ..................................................................................................................... 203

Summary Judgment ................................................................................................................ 221

Trial: Voir Dire ....................................................................................................................... 249

Trial: Exhibits ......................................................................................................................... 258 Trial: Jury Charges ................................................................................................................ 261

Trial: Post-Trial Motions ....................................................................................................... 269

Defense Practice: Reporting Requirements .......................................................................... 277

Defense Practice: Dealing with Adjusters ............................................................................. 278

Defense Practice: Subpoenaing Medical Records ................................................................ 279

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Personal Injury Essentials Agenda

8:40 a.m Welcome and Introduction 8:45 a.m. Networking: Getting the Clients Jack McKenzie McDonald, McKenzie, Rubin, Miller & Lybrand, LLP 9 a.m. Case Evaluation Jack McKenzie McDonald, McKenzie, Rubin, Miller & Lybrand, LLP Charlie Moore Turner Padget Graham & Laney, PA Dan Haltiwanger Richardson Patrick Westbrook & Brickman, LLC Breon C. M. Walker Gallivan, White & Boyd P.A. 9:15 a.m. Case Intake Dan Haltiwanger 9:45 a.m. Medical Records/HIPAA Jack McKenzie 10 a.m. Demand Letters Jack McKenzie 10:15 a.m. Break 10:30 a.m. Lien Negotiation Jack McKenzie 10:45 a.m. Filing Suit/Service of Process Jack McKenzie 11 a.m. Offers of Judgment Charlie Moore 11:15 a.m. Written Discovery Dan Haltiwanger 11:30 a.m. Legal and Trust Accounting Rules Barbara M. Seymour Clawson and Staubes, LLC 12 p.m. Lunch (on you own) 12:45 p.m. Depositions Dan Haltiwanger

1:30 p.m. Depositions of Medical Professionals Breon C. M. Walker 1:45 p.m. Mediation Jack McKenzie Charlie Moore Dan Haltiwanger Breon C. M. Walker 2 p.m. Expert Witnesses Dan Haltiwanger 2:15 p.m. Summary Judgment Dan Haltiwanger 2:30 p.m. Trial: Voir Dire Jack McKenzie 2:45 p.m. Trial: Exhibits Breon C. M. Walker 3 p.m. Trial: Jury Charges Dan Haltiwanger 3:15 p.m. Trial: Post-Trial Motions Breon C. M. Walker 3:30 p.m. Break 3:45 p.m. Defense Practice: Reporting Requirements Charlie Moore 4 p.m. Defense Practice: Dealing with Adjusters Charlie Moore Breon C. M. Walker 4:15 p.m. Defense Practice: Subpoenaing Medical Records Charlie Moore 4:30 p.m. Questions for the Panel Jack McKenzie Charlie Moore Dan Haltiwanger Breon C. M. Walker 4:15 p.m. Adjourn

SPEAKER BIOGRAPHIES

JOHN FRANCIS MCKENZIE

McDonald, McKenzie, Rubin, Miller and Lybrand, L.L.P.

Columbia, SC

John Francis “Jack” McKenzie is a partner at McDonald, McKenzie, Rubin, Miller and Lybrand,

L.L.P. His practice focuses primarily in the field of civil litigation, which includes auto, property

and commercial subrogation claims, along with personal injury and workers’ compensation cases

for individuals. He speaks Spanish and has been recognized by the government of Mexico for his

work with the Latino population in South Carolina.

Jack is AV rated and is Lead Counsel Rated in personal injury cases. He serves as a member of

the American Society of Legal Advocates and is an instructor for the Personal Injury Seminar

given by the South Carolina Bar, as part of the South Carolina Bar’s Bridge the Gap Program. He

was President of the John Belton O’Neall Inn of Court during 2015-2016 and currently serves on

the Executive Board of the Richland County Bar Association. In 2016, he was again voted by his

peers as a Legal Elite of the Midlands in the area of personal injury law.

CHARLIE MOORE Turner Padget Graham & Laney, PA

Columbia, SC

Charlie Moore was sworn in to the South Carolina Bar in 1999 and has spent his legal career

working with the law firm Turner Padget. Charlie currently has a general litigation practice with a

concentration on civil insurance defense. Charlie's client base is largely comprised of insurance

carriers and private businesses with liability defense needs. He enjoys aggressively getting

involved in cases and appearing in the courtroom. Charlie has vast trial experience statewide, and

has tried many cases involving private clients as well as institutional clients. He has brought

numerous cases to jury verdicts and has also enjoyed successful appeals.

After graduating from the University of South Carolina with a Bachelor of Science in 1992, Charlie

worked for three years with Branch Banking and Trust as a Corporate Lender. He left banking to

pursue his legal career.

Charlie has been selected by his peers as a repeat recipient of the Midlands Legal Elite in the field

of personal injury litigation. He is also a member of the John Belton O'Neall American Inn of

Comt, the South Carolina Defense Trial Attorneys Association, and is a former chair of the Young

Lawyers Division of the Richland Comity Bar Association.

He has presented a Continuing Legal Education seminar regarding premises liability law and the

defense of premises liability cases.

DAN HALTIWANGER Richardson Patrick Westbrook & Brickman, LLC

Barnwell, SC

Dan was born and raised in Columbia, South Carolina. He attended the University of Virginia then

returned to Columbia for law school at the University of South Carolina. Upon graduating law

school he clerked for Chief Justice Jean Toal of the South Carolina Supreme Court. Dan then

accepted a job working at the firm of Ness Motley Loadholt Richardson & Poole. When that firm

dissolved in 2002, Dan became one of the original associates of Richardson, Patrick, Westbrook,

& Brickman. He has been a member of RPWB as of January 2009. His practice covers a wide

variety of litigation areas including unsafe products, premises liability, tractor trailer litigation,

railroad litigation, and consumer class actions. Since 2006 he has served on the board of directors

for South Carolina Legal Services, a statewide law firm that provides civil legal services to protect

the rights of low income South Carolinians. In 2009, Dan was elected to the Board of Governors

for the South Carolina Association for Justice. He also served 4 years on the Executive Committee

of the South Carolina Association for Justice. He and his wife Adriana live in Aiken, South

Carolina and have two young children, Diana and William.

BREON C. M. WALKER Gallivan, White & Boyd, PA

Columbia, SC

Breon C. M. Walker is a litigation attorney and partner in the Columbia, South Carolina, office at

Gallivan, White & Boyd P.A. She has a diverse legal practice which includes the defense of

personal injury claims, products liability defense, commercial litigation, and government

relations. Breon has years of trial experience in state and appellate courts that dates back to her

time as an Assistant Attorney General.

As a member of the firm’s tort and personal injury team, Breon regularly defends insurers, self-

insured corporations, and third-party risk managers in complex litigation involving tort liability

and risk management issues. Breon is also an accomplished products liability defense attorney

often representing clients in mass tort and catastrophic loss claims related to the manufacturing,

design, and sale of consumer products and their alleged defects.

Breon has extensive trial experience beginning with her days as an Assistant Attorney General for

South Carolina. As a result of this experience, she has effectively tried both criminal and civil

cases. Breon’s most recent trials have involved defending individuals and entities in personal

injury (auto tort) cases, premises liability cases, and matters involving professional

negligence. Examples of these cases include:

• A two week trial in Lexington County defending a real estate company over the plaintiff’s

attempted purchase of commercial property (La Casa Real Estate and Investments, LLC

and Bobby Slate v. Andrew A. Aun, et al.). The plaintiff in the case demanded $1.8 million

in damages and was awarded nothing after the defense obtained a defense verdict.

• Breon represented an Orangeburg County corporation accused of false imprisonment and

malicious prosecution (Meredith Huffman, Appellant v. Sunshine Recycling, LLC and

Aiken Electric Cooperative, Inc, Respondents). Breon successfully argued and obtained

summary judgment on behalf of her client in circuit court. The plaintiff sought review of

the circuit court’s order granting summary judgment, and argued there were genuine issues

of material facts concerning whether the defendant caused, instigated, or procured the

plaintiff’s arrest. This matter is currently under appeal.

Breon also provides government relations and public affairs services to clients, and represents

major business interests throughout South Carolina before both state and local government

bodies. Breon was born and raised in Columbia, where she returned to practice law following her

graduation from law school. Because of her long-standing ties to the community, Breon

understands state and local government issues and advises clients on how to properly navigate the

political landscape. Breon has represented clients on issues related to:

• Healthcare

• Commercial Real Estate

• Community Development

• Served as general counsel to county school boards throughout South Carolina

An experienced speaker, Breon has prepared and presented seminars for clients and colleagues on

statutory compliance, case law developments, and effective witness preparation. She is a member

of the South Carolina Bar, the South Carolina Black Lawyers’ Association, the National Bar

Association, Defense Research Institute, and the Richland County Bar Association, on which she

served as the Co-Chair of the Young Lawyers’ Division from 2009-2014. Breon is also a member

of the South Carolina Defense Trial Attorneys Association’s (“SCDTAA”) Board of Directors and

was 2013-2014 Editor-in-Chief of the SCDTAA’s publication, The Defense Line.

Walker’s dedication to her practice has led to recognitions by respected legal organizations and

her peers including:

• Benchmark Litigation “Rising Stars Under 40” – 2016

• South Carolina Super Lawyers “Rising Star” – 2012 to Present

• National Bar Association as one of the “Nation’s Best Advocates: 40 Lawyers Under 40”

– 2013

• South Carolina Lawyers Weekly as one of South Carolina’s “Top Ten Emerging Legal

Leaders” – 2011

Barbara M. Seymour

Clawson & Staubes, LLC

Columbia, SC

Barbara M. Seymour of the law firm of Clawson & Staubes, LLC, represents lawyers, law firms,

and judges in a variety of matters related to ethics and professional discipline. She earned her

Bachelor’s Degree in Management and Marketing from the University of North Carolina at

Greensboro in 1990 and her Juris Doctor from the University of Georgia School of Law in 1993.

Barbara began her career as a trial lawyer at Harris & Graves in the Upstate. In 2000, she joined

the staff of the Office of Disciplinary Counsel to the Supreme Court of South Carolina,

investigating and prosecuting allegations of misconduct, incapacity, and contempt of court by

lawyers. She served as the Deputy Disciplinary Counsel from 2007 until 2017. Barbara is a

member of the South Carolina Bar, the Georgia Bar, the South Carolina Women Lawyers

Association, the national Association of Professional Responsibility Lawyers, and the South

Carolina Association of Ethics Counsel. She currently serves in the House of Delegates and on

the Law Related Education, Unauthorized Practice of Law, Future of the Profession, and

Diversity Committees at the South Carolina Bar. In 2006, Barbara was named the Law Related

Education Lawyer of the Year. She was a 2006 and 2011 Fellow of the National Institute for the

Teaching of Ethics and Professionalism. Barbara was an adjunct instructor in the Professional

Legal Assistants Program at Converse College and currently teaches in the Paralegal Degree

Program at Midlands Technical College. Her courses have included Ethics, Civil Litigation,

Business Law, Torts, Legal Research and Writing, and Law Office Management.

Networking: Getting the Clients

Jack McKenzie

Personal Injury Essentials

Friday, August 21, 2020

By: Jack McKenzie

Networking: Getting the Right Clients

Networking: Always have Business

Cards Join Organizations: SC Association for Justice

(SCAJ) American Association for

Justice (AAJ) SC Young Lawyers Division

(YLD) Specific Organizations in your

field: Motorcycle Injury Lawyers Truck Accident Lawyers *Most fields have specific groups

Be Active in the Community: Go to functions

Law related and non-law related

Volunteer Pro Bono Program Non-Profit Organizations

Directories SC Lawyer Referral AVVO Lawyers.com

Advertising: Attorney Client Matching Services

Search Engine Optimization (SEO) for your Website

Pay Per Lead

Phone Books

Pay Per Click Ads Online

Online Directories

Television

Radio

Social Media

Newspaper Ads

Case Evaluation

Jack McKenzie Charlie Moore

Dan Haltiwanger Breon C. M. Walker

Personal Injury Essentials

Friday, August 21, 2020

By: Jack McKenzie, Charlie Moore, and Dan Haltiwanger

Case Evaluation for the Plaintiff and Defense

Intake Sheet Always Collect Intake Sheets for Potential Clients Contact Information Insurance Information Spouse Information Date of Accident Accident Information Charges from accident Tickets from accident Vehicle Information Doctor Information Hospital Information X-Rays? EMS? Other? Summary of Injuries Adverse Party Information

*Sample intake sheet in your materials

Fee Agreements SHOULD INCLUDE:

Clear language Nature of agreement Specific payment or percentage Security of payment Language about costs What happens if attorney is discharged No guarantees Any and all conditions of representation Specific authorization

What accident What is the scope of representation What is the role of attorney as far as medical bills

*Sample fee agreement in your materials

,------~---------·------·----~------

By: Jack McKenzie, Charlie Moore,

and Dan Haltiwanger

FILE#: ________ _ DATE: ________ _

CLIENT:_'-------------------------ADDRESS: ______________________ ___ DATE OF BIRTH: ____ SSN: _______ DL# ________ _

HOME PHONE:_________ CELL PHONE: ______ _ EMAIL ADDRESS: _____________________ _ FACEBOOK PAGE USER NAME: _________________ _

HEALTH INSURANCE: ____________________ _ SPONSORNAMEANDID# ____________________ _

EMPLOYER: ______________________ ___ EMPLOYER ADDRESS: ____________________ _ DATE EMPLOYED: __ _ TYPE OF WORK: ____ _ AVERAGE WAGES: __ _

SPOUSE NAME: _______________________ __ SPOUSE WORK PHONE: CELL: _________ _ SPOUSE FACEBOOK PAGE USER NAME: _____________ _

INSURANCE CARRIER: ____________________ _ INSURANCE CARRIER ADDRESS: ______________ _ NAME INSURED: POLICY#: ________ __ PIP: AMOUNT: --------MED PAY: AMOUNT: ______ __

DATE OF ACCIDENT: PLACE: ________ _ HOW DID ACCIDENT OCCUR? ________________ ___

WAS CHARGE MADE? NATURE OF CHARGE: _____ _ AGAINST WHOM? ____________________ _ CITY __ HWY PATROL. __ NAMES/ADDRESSES OF WITNESSES: ___________ _

CLIENT'S VEHICLE: YEAR: MAKE: MODEL: COLOR: __ _ DRIVEABLE:_ WHERE LOCATED: ____________ _ LICENSE PLATE#: AREA DAMAGED: ______ _ DATE PURCHASED: PURCHASE PRICE: ________ _ LIENHOLDER: BALANCE OF LIEN: ________ _ VEHICLE TO BE REPAIRED BY: ______________ _

CLIENT'S PHYSICIAN: ___________________ _ HOSPITAL: ________________________ _ X-RAYS TAKEN: EMS: ---------SUMMARY OF INJURIES: _________________ _

NEED DR.: REFERRED TO: ______________ _ APPT. DATE/TIME: _______ _

Case Intake

Dan Haltiwanger

Personal Injury Essentials

Friday, August 21, 2020

Case Intake

RICHARDSON, PATRICK, WESTBROOK & BRICKMAN, LLC

New Case Intake Form

Case/Project Name:___________________________________________________

Case/Project Type:____________________________________________________

Referred By:_________________________________________________________

Co-Counsel:_________________________________________________________

Factual/Legal Summary:_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Potential Problems (if any):_____________________________________________ __________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Estimated Damages: $_______________

Total Fee Potential: $_______________

RPWB Fee Share: _______________%

Co-Counsel Fee Share(s): ______________________________________________

Estimated Total Case Costs: $_______________

RPWB Case Cost Share: _____________%

Co-Counsel Case Cost Share(s): ___________________________________________________

Recommended Attorneys and Staff Percent of Time ______________________________ ______________ ______________________________ ______________ ______________________________ ______________ ______________________________ ______________ Submitted by:______________________________ Date:________________

Member approved before submission by:______________________________

CASE

NEGOTIATIONS Date Plaintiff Defendant

CASE CHECKLIST

Phase Event Completed Comment(s)

Out

set

Send Contingent Fee Agreement Contingent Fee Agreement Received?

Send Conflict Waiver (More than one Client)

Conflict Waiver Received Send Releases Releases Received Send PIQ PIQ Received? Send Welcome Letter Setup Copytrack Setup QBs Assign to Paralegal Calendar SOL

Pre-

Dem

and

Guardian or PR? LOR to At-Fault Preservation Letter to At-Fault LOR to Health Insurance LOR to Client PIP1 LOR to Client UIM2 Determine At-Fault Liability Limits3 Order Insurance Ledgers Insurance Ledgers Obtained Order Treatment Records Treatment Records Obtained Order Billing Records Billing Records Obtained Order Wage Loss Documents Wage Loss Documents Obtained Request Photos (Scene, Client, Autos)

Photos Obtained Order Accident Report Accident Report Received Request Property Damage Information4

Property Damage Information Received

Request Loss of Use Information Loss of Use Information Received Request Diminution of Value Information

Diminution of Value Information Received

Request Wage Loss Documents Wage Loss Documents Received Impairment Rating Draft Witness Declarations if

1 Check driver (if passenger), household policy and at-fault driver if pedestrian or cyclist. 2 Check driver (if passenger) and household policy. 3 If adjuster will not provide limits, file suit. 4 Determine who paid; photos of both vehicles.

Contested Liability Witness Declarations Received Retain Medical Expert(s)5 Retain Liability Expert(s)6 Hamilton Letter to UIM Carrier

Dem

and

Lette

r

Confirm Medical Expenses Draft Letter Send to Client Approved by Client Send to Adjuster Confirm Receipt (Including Exhibits)7

Calendar Response

Initi

atin

g La

wsu

it

Draft Complaint File Summons and Complaint Draft Provider Declarations (if MAR case)

Provider Declarations Obtained (if MAR case)

Letter or Email to Clients (“Litigation Roadmap”)

Calendar Case Schedule or Dates from Local Rules

Serve Defendant(s) Calendar Answer Deadline8 Answer Received

Stip

ulat

ions

Send CR 2A Agreement re: Electronic Service

CR 2A Agreement re: Electronic Service Received

Send Liability and Comparative Fault

Liability and Comparative Fault Received

Send R&N of Treatment and Expenses

R&N of Treatment and Expenses Received

Dis

cove

ry

Propound RFAs re: Service and Tort Claim Forms

RFAs re: Service and Tort Claim Forms answered or denied

Propound MVA or Contention Requests

MVA or Contention Requests Answered

Propound RFAs re: Facts of Accident

RFAs re: Facts of Accident answered or denied

Propound RFAs re: Treatment and Expenses

RFAs re: Treatment and Expenses answered or denied

ER 904 (First) ER 904 (Second) Send 30(b)(6) letter to Counsel for Entities

Designation Received Note Deposition Defendant9 Note Deposition Witnesses

5 No written contact with expert without Myers’ approval. 6 No written contact with expert without Myers’ approval. 7 Adjusters allege inability to access CDs, etc. Call and confirm day after sending. 8 If answer not received in 20 days call OC; if not received in 30 move for default. 9 Advise court reporter to photograph all witnesses.

Note Depositions Opposing Experts M

otio

ns P

ract

ice

Motion in Limine re: Inflammatory/Non-Standard Issues

Motion for Summary Judgment Liability (if not Admitted)

Motion for Summary Judgment Treatment and Expenses (if not Admitted)

Motion for Summary Judgment to Strike Affirmative Defenses

Motion to Limit Experts

Tria

l Pre

para

tion

Send Experts All Relevant Discovery

Subpoena Witnesses Notice of Trial Attendance Coordinate with Experts, Clients and Lay Witnesses

Draft Trial Brief Draft Jury Instructions Compile Exhibits

Settl

emen

t

Settlement agreement includes language that plaintiff was not made whole and/or was at comparatively at fault

Settlement agreement includes language confirming that there's no other available insurance

Post

-Set

tlem

ent/A

rbitr

atio

n A

war

d/Ve

rdic

t

Confirm Lien/Subrogation Amounts Request Reduction/Waiver Responses to Waiver/Reduction Requests

Cost Bill (w/in seven days if MAR) Move for Fees re: RFAs or if De Novo

Check Requested (Written to Trust Account)

Check Received Draft Distribution Memo10 Send Distribution Memo to Client Disburse Funds Move File to Closed Files on Server

10 Double check CFA, Liens and Fee Divisions

PERSONAL INJURY LITIGATION CHECKLIST

1) Meet with client

a) If declining case, send non-engagement letter. _____ b) If case warrants further examination, estimate earliest

Statute of limitations date _____ c) Run Conflict check _____

2) Conduct pre-trial investigation _____

a) Obtain statements from necessary witnesses _____ b) Visit scene of incident, take photographs _____ c) Obtain copy of the accident report (i.e. open records request) _____

3) Review causes of action _____ a) Identify elements from charge _____ b) Identify means of proof _____ c) Determine initial discovery strategy _____

4) Assess case (liability, disability, collectability) _____ a) If declining case, send non-engagement letter _____ b) If accepting case, obtain signed Power of Attorney _____

i) Get a case number _____ ii) If referral, ensure that we have a letter signed by the client _____

identifying that the client agrees to our representation and agrees to the fee split

iii) Scan Power of Attorney _____ iv) Estimate earliest Statute of limitations _____ v) Calendar Statute of limitations reminders (9 mo, 6 mo, _____

3 mo, 1 mo, 2 weeks)

5) Give client initial written guidance _____ a) Provide client with “Instruction to Clients” sheet _____ b) Have client complete “Case History” _____

PRE-SUIT CHECKLIST

c) Prepare releases for Step 6 _____ 6) Obtain client’s records (generally by affidavit) _____

a) Use a records service to obtain the following in Affidavit form: i) Medical Records _____ ii) Medical billing records _____ iii) Payroll records _____ iv) Employment records _____

b) Obtain the following records without the use of records service: i) Tax returns _____ ii) Social Security Earnings information _____ iii) Texas Employment Commission information _____ iv) Criminal history check _____

7) Begin case summary _____

a) Include all relevant contact information _____ (attorneys, parties, etc.)

b) Update as necessary _____

8) Identify potential liens and subrogation interests _____ a) Determine what liens exist _____

i) Ask client what hospitals treated him or her _____ ii) Contact Medicare/Medicaid _____

b) Get itemized statements from entities _____ c) Determine, if possible, the validity of the lien or interest _____ d) Negotiate any lien/interest—reach agreement in principle _____ e) If MSA, consider Garretson _____

9) Review demand with client. _____

10) Send demand letter (B-51) _____

11) Draft Petition _____

a) Include request for jury and pay jury fee _____ b) Consider whether punitive damages warranted _____ c) Include Request for Disclosures as part of petition _____

12) Locate, interview, and retain experts _____ a) Agree on hourly rates, expenses _____ b) Send retainer letters and checks _____ c) Ensure expert will be available for trial _____ d) Ensure expert understands what is discoverable (i.e. e-mail) _____

i) No written correspondence (e-mail, letter, etc.) _____ with expert w/o attorney authorization

e) Provide experts with discovery _____ i) Ensure experts receive copies of relevant depositions _____

f) Shepherd report writing _____ 13) Prepare written discovery _____

i) Interrogatories _____ ii) Request for Production should be accompanied _____ iii) Consider Request for Admissions _____

b) Attorney reviews discovery _____ c) If applicable, attach format for electronic production. _____

14) Assess jurisdiction and venue options _____ a) Consider non-diverse defendants _____ b) Identify agent/individual for service _____ c) Obtain and review local rules for county of suit. _____

15) File Petition and discovery, calendar dates _____ 16) PAY JURY FEE _____ 17) Perfect service _____

LITIGATION

18) Calendar response dates _____

a) Answer: 10:00 a.m. on the next Monday, 20 days after service _____ b) Answers to Plaintiff Discovery: 50 days after service _____

19) FILE AFFIDAVITS WITHIN 48 HOURS OF RECEIPT, _____ BUT IN ANY CASE 30 DAYS PRIOR TO TRIAL

20) Create and maintain spreadsheet of outstanding and received client records _____

21) Receive defendant’s answer _____

a) Read answer and review all defenses _____ b) Add contact information to case summary _____

i) Create fax sheet for parties _____ ii) Create fax sheet for parties with judge _____

c) File special exceptions if applicable. _____ d) If removal, ensure that jury has been requested

(10 day deadline) _____ e) If defendant files Special Appearance, Plaintiff response must _____

Be filed w/in 7 days of hearing f) If defendant moves to transfer venue due to wrong or _____

inconvenient county, Plaintiff response must be filed (with affidavits) at least 30 days before hearing

22) Calendar deadlines _____

a) Receive judge’s Docket Control Order (DCO), or _____ b) Negotiate a scheduling order (with Rule 11), or _____ c) If Level II, determine and calendar dates per TRCP 190.3 _____

23) Send letter to client and experts with key deadlines _____ 24) Respond to discovery requests _____

a) Calendar immediately—build in time for error _____ b) Mail discovery to client immediately _____

i) Request answers back 7+ days before the actual deadline _____ ii) Call client to confirm receipt _____

c) Contact client _____ i) Obtain documents, answers to Interrogatories _____ ii) Make initial objections _____

iii) Complete verification page _____ d) Attorney reviews responses to defendant discovery _____ e) Consider and designate witnesses who may testify as to _____

pain/anguish i) Look for witnesses outside immediate family _____ ii) Instruct witnesses on responsibilities _____

f) Regularly (monthly) review to supplement _____ i) Maintain a file with outstanding discovery requests _____ ii) Periodically write/contact source _____

(client, records service, etc.) with reminders to provide information

25) Receive notice of Depo by Written Questions _____

a) Notify attorney of Notices _____ i) Generally waive, but check with attorney _____ ii) With respect to billing questions, use cross-questions to _____

get “necessary and reasonable” amounts b) Order copies _____

26) Review responsive discovery _____ a) Review immediately and write defendants addressing _____

deficiencies b) Index discovery in discovery notebook _____ c) Provide written description of defendant production _____ d) File appropriate motions to compel _____ e) Make supplemental requests where necessary _____ f) Review written discovery for witnesses with relevant _____

knowledge, add same to responses to Request for Disclosures

27) Identify and take depositions _____ a) Prepare notices for deposition _____ b) Select documents for deposition _____

i) Make 4 sets of documents, place in folders with identifying _____ label

ii) Prepare folder with depo notice and directions to deposition _____ c) For presenting witnesses: _____

i) Arrange for court-reporter _____ ii) Schedule conference room _____ iii) Make other witness travel arrangements _____ iv) Make lunch arrangements _____

d) Confirm 1 day before depo: _____ i) Contact court reporter _____ ii) Contact opposing counsel _____ iii) Contact witness (if ours) _____

e) For plaintiff depositions, calendar due dates for signature _____ f) For defendant depositions, review errata sheets _____

28) Complete Depo summaries

a) Do initial “rough summary” w/in 24 hours of depo _____ b) Do full summary w/in 72 hours of transcript _____

29) Plaintiff designate experts _____ a) Draft designation of experts _____ b) If Level 2, at least 90 days before Discovery Cut-Off _____ c) Determine by scheduling order/DCO whether report is _____

required and calendar deadline

30) Defendant designates experts _____ a) If level 2, at least 60 days before Discovery Cut-Off _____ b) If defendants furnishes report, deliver to appropriate plaintiff’s _____

experts c) Add defendants’ experts to our designations _____

31) Depose/present experts _____ a) Send Subpoena Duces Tecum to opposing experts _____

32) Serve any written discovery request at least +30 days from _____ Cut-Off

33) VERIFY SUPPLEMENTS 30 DAYS PRIOR TO _____

DISCOVERY CUT-OFF: A) SUPPLEMENT REQUEST FOR DISCLOSURES _____ B) REVIEW AND SUPPLEMENT PLEADINGS _____

34) Make Stowers demand _____

a) Calendar response dates _____ 35) Consider appropriate motions _____ 36) Consider filing appropriate MSJ (at least 21 days prior to trial) _____ 37) Respond to Defendant MS _____

a) File response to MSJ at least 7 days prior to hearing _____ b) File objections to MSJ evidence at least 7 days prior to hearing _____ c) File affidavits in support of MSJ response at least 7 days prior _____

to hearing 38) Prepare for mediation _____

a) Coordinate for PowerPoint equipment if necessary _____ b) Write letter to defendants suggesting mediator _____ c) Do mediation letter _____

39) Conduct mediation _____ 40) If Defendant makes offer under TRCP 167, consult rule for _____

appropriate deadlines and calendar accordingly

41) 42) 43) N

otify all witnesses, but particularly experts, of trial date _____

[DISCOVERY CUT-OFF]

By DCO or, if Level II, the earliest of :

1) 30 days before the date set for trial, or

2) 9 months after the due date of the first response to written discovery or first oral deposition

Trial

44) Begin preparations of demonstrative evidence _____ 45) Conduct jury study _____ 46) Pre-trial preparations of exhibits _____

a) Begin depo cuts _____ b) Exchange exhibit lists, make objections _____ c) Prepare short bench memos on anticipated evidentiary problems _____ d) Verify that all disputed documents can be authenticated _____

47) Redact medicals _____ 48) Prepare pre-trial order _____ 49) Prepare for Trial (30 days before trial) _____

a) Review and supplement discovery requests _____ b) Review pleadings. _____ c) Prepare Motion in Limine _____ d) Prepare trial notebooks _____ e) Verify that affidavits have been filed _____ f) Contact trial witnesses again for availability _____ g) Prepare subpoenas for witnesses not voluntarily appearing _____ h) Prepare jury questionnaire _____ i) Create indexes for document boxes _____ j) Use colored folders for exhibits _____

Medial Records/ HIPAA

Jack McKenzie

Personal Injury Essentials

Friday, August 21, 2020

By: Jack McKenzie

S.C. Code Ann. § 44-7-325

This document is current through all Legislation enacted in the 2013 Session The most current annotation is dated September 12, 2013

South Carolina Code of' Laws Annotated > TITLE 44. HEALTH > CHAPTER 7. HOSPITALS, TUBERCULOSIS CAMPS AND HEALTH SERVICES DISTRICTS > ARTTCLE 3. STATE CERTIFICATION OF NEED AND HEALTH FACILITY LICENSURE ACT

§ 44-7-325. Fee for search and duplication of medical record; time limits for compliance with request for record.

(A) A health care facility, as defined in Section 44-7-130, and a health care provider licensed pursuant to Title 40 may charge a fee for the search and duplication of a medical record, but the fee may not exceed sixty-five cents per page for the first thirty pages and fifty cents per page for all other pages, and a clerical fee for searching and handling not to exceed fifteen dollars per request plus actual postage and applicable sales tax. However, no fee may be charged for records copied at the request of a health care provider or for records sent to a health care provider at the request of the patient for the purpose of continuing medical care. The facility or provider may charge a patient or the patient's representative no more than the actual cost of reproduction of an X-ray. Actual cost means the cost of materials and supplies used to duplicate the X-ray and the labor and overhead costs associated with the duplication.

(B) Except for those requests for medical records pursuant to Section 42-15-95:

(1) A health care facility shall comply with a request for copies of a medical record no later than forty-five days after the patient has been discharged or forty-five days after the request is received, whichever is later.

(2) Nothing in this section may compel a health care facility to release a copy of a medical record prior to thirty days after discharge of the patient.

History

1994 Act No. 468, § 3.

South Carolina Code of ums Annotared by LexisNe.lis ®

Copyrighr © 2014 LexisNexis. All rights reserved. Srarutes provided under license from rhe Srate of Sott!h Carolina.

SC LEGIS 294 (2014), 2014 South Carolina Laws Act 294 (H.B. 4354)

2014 South Carolina Laws Act 294 (H. B. 4354)

SOUTH CAROLINA 2014 SESSION LAWS

REGULAR SESSION

Additions and deletions are not identified in this document.

Vetoes are indicated by ~

stricken material by Text

Act 294

H.B. No. 4354

AN ACT TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 44-115-15 SO AS TO PROVIDE THAT FOR THE PURPOSES OF THE PHYSICIANS' PATIENT RECORDS ACT, THE TERM "MEDICAL RECORDS" INCLUDES MEDICAL BILLS; TO AMEND SECTION 44-7-325, RELATING

TO THE STATE CERTIFICATION OF NEED AND HEALTH FACILITY LICENSURE ACT, AND SECTIONS 44-115-30 AND 44-115-80, BOTH RELATING TO THE PHYSICIANS' PATIENT RECORDS ACT, ALL SO

AS TO PROVIDE CIRCUMSTANCES IN WHICH ELECTRONIC RECORDS MUST BE PROVIDED, TO REVISE RELATED FEES, TO PERMIT FEES EVEN WHEN RECORDS REQUESTED BY A PATIENT ARE NOT FOUND, AND TO REQUIRE ANNUAL ADJUSTMENTS OF THESE FEES IN A CERTAIN MANNER.

Be it enacted by the General Assembly of the State of South Carolina:

Obligation of health care facilities, fees

SECTION 1. Section 44-7-325 of the 1976 Code is amended to read:

« SC ST § 44-7-325 »

Section 44-7-325. (A)( I) A health care facility, as defined in Section 44-7-130, and a health care provider licensed pursuant

to Title 40 may charge a fee for the search and duplication of a medical record, whether in paper format or electronic format,

but the fee may not exceed:

(a) for records requested to be produced in an electronic format, the total charge to the requestor may not exceed one

hundred fifty dollars per request regardless of the number of records produced or number of times the patient has been

admitted to the health care facility. The charge, not to exceed one hundred fifty dollars, shall be calculated as follows:

sixty-five cents per page for the first thi1iy pages provided in an electronic format and fifty cents per page for all other

pages provided in an electronic format, plus a clerical fee not to exceed twenty-five dollars for searching and handling,

which combined with the per page costs may not exceed a total of one hundred fifty dollars per request, and to which may

be added actual postage and applicable sales tax;

(b) for paper requests, sixty-five cents per page for the first thi1iy printed pages and fifty cents per page for all other printed

pages, plus a clerical fee not to exceed twenty-five dollars for searching and handling, which combined with the per page

print costs may not exceed two hundred dollars per admission to the health care facility, and to which may be added

actual postage and applicable sales tax. The patient may have more than one admission on file when the record request is

made. If multiple admissions exist, the print fee applies per admission, but only one clerical fee may be charged. Multiple

emergency room records without an admission to the hospital are considered one admission;

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SC LEGIS 294 (2014), 2014 South Carolina Laws Act 294 (H.B. 4354)

(c) notwithstanding whether the records are requested in print or electronic format, the search and handling fees in sub items

(a) and (b) are permitted even though no medical record is found as a result of the search, except where the request is

made by the patient; and

(d) all of the fees allowed by this section, including the maximum, must be adjusted annually in accordance with the

Consumer Price Index for all Urban Consumers, South Region (CPI-U), published by the U.S. Department of Labor. The

Department of Health and Environmental Control is responsible for calculating this annual adjustment, which is effective

on July first of each year, starting July 1, 2015.

(2) Notwithstanding the provisions of subsection (A), no fee may be charged for records copied at the request of a health care

provider or for records sent to a health care provider at the request of the patient for the purpose of continuing medical care.

(3) The facility or provider may charge a patient or the patient's representative no more than the actual cost of reproduction

of an X-ray. Actual cost means the cost of materials and supplies used to duplicate the X-ray and the labor and overhead

costs associated with the duplication.

(B) Except for those requests for medical records pursuant to Section 42-15-95:

(I) A health care facility shall comply with a request for copies of a medical record:

(a) no later than forty-five days after the patient has been discharged or forty-five days after the request is received,

whichever is later; and

(b) in a printed format or in an electronic format if requested to be delivered in electronic format, but only if the record is

stored in an electronic format at the time of the request and the health care facility has the ability to produce the medical

record in an electronic format without incurring additional cost.

(2) Nothing in this section may compel a health care facility to release a copy of a medical record prior to thirty days after

discharge of the patient.

Rights of patient or representative, legal representative specified

SECTION 2. Section 44-115-30 of the 1976 Code is amended to read:

« SC ST § 44-115-30 »

Section 44-115-30. A patient or his legal representative has a right to receive a copy of his medical record, or have the record

transferred to another physician, upon request, when accompanied by a written authorization from the patient or his legal

representative to release the record. The patient or his legal representative is entitled to receive a copy of the record either

in a printed format or an electronic format but only if the record is stored in an electronic format at the time of the request

and the physician or other owner of the record has the ability to produce the medical record in an electronic format without

incutTing additional cost.

Obligations of physicians, health care providers, and other record owners, fees

U.S. C3overnrnenl Works. ') /,

SC LEGIS 294 (2014), 2014 South Carolina Laws Act 294 (H.B. 4354)

SECTION 3. Section 44-115-80 of the 1976 Code is amended to read:

« SC ST § 44-115-80 »

Section 44-115-80. (A) A physician, or other owner of medical records as provided for in Section 44-115-130, may charge a

fee for the search and duplication of a paper or electronic medical record, but the fee may not exceed:

(1) Sixty-five cents per page for the first thirty pages provided in an electronic format and fifty cents per page for all other

pages provided in an electronic format, plus a clerical fee not to exceed twenty-five dollars for searching and handling, which

combined with the per page costs may not exceed one hundred fi±Ty dollars per request, but to which may be added actual

postage and applicable sales tax. The search and handling fee is permitted even though no medical record is found as a result

of the search, except where the request is made by the patient.

(2) Sixty-five cents per page for the first thirty printed pages and fi±Ty cents per page for all other printed pages, plus a

clerical fee not to exceed twenty-five dollars for searching and handling, which combined with the per page print costs may

not exceed two hundred dollars per request, and to which may be added actual postage and applicable sales tax. The search

and handling fee is permitted even though no medical record is found as a result of the search, except where the request is

made by the patient.

(3) All fees allowed by this section, including the maximum, must be adjusted annually in accordance with the Consumer

Price Index for all Urban Consumers, South Region (CPI-U), published by the U.S. Department of Labor. The Department

of Health and Environmental Control is responsible for calculating this annual adjustment, which is effective on July first

of each year, stmiing July I, 2015.

(B) A physician, health care provider, or other owner of medical records must provide a patient's medical records at no charge

when the patient is referred by the physician, health care provider, or an employee, agent, or contractor of the owner of the

record to another physician or health care provider for continuation of treatment for a specific condition or conditions.

(C) The physician may charge a patient or the patient's legal representative no more than the actual cost of reproduction of

an X-ray. Actual cost means the cost of materials and supplies used to duplicate the X-ray and the labor and overhead costs

associated with the duplication.

Scope of term

SECTION 4. Chapter 115, Title 44 of the 1976 Code is amended by adding:

« SC ST § 44-115-15 »

Section 44-115-15. For purposes of this chapter, "medical records" includes the patient's medical bills.

Time effective

SECTION 5· This act takes effect upon approval by the Governor.

Ratified the 2oth day of June, 2014.

Approved the 23rd day of June, 2014.

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November 27, 2012

Palmetto Health Richland ATTN: Medical Records 2 Richland Medical Park Ste 404 Columbia, South Carolina 29203

RE: JOHN DOE DOB: 00/00/0000 Date of Accident:00/00/0000 Account Number:ROOOOOOO

Dear S1r or Madame,

It is understanding that you are treating my above-referenced client for injuries sustained in an automobile collision which occurred on the above-referent date. I would appreciate your forwarding to me your forwarding to me related itemized bill for services rendered at such time as you may deem appropriate. I am enclosing an authorization signed by my client which will allow you to release this information to me and my return envelope for your convenience in doing so.

The requested medical records and notes, your bill for services rendered to this patient, and your bill for furnishing these records should be sent to me at the following address:

JFM/cgc

JOHN F. McKENZIE Post Office Box 58 Columbia, South Carolina 29202

Sincerely,

John F. McKenzie

March 28, 2012

Palmetto Health Richland Health Information Management ATTN: Medical Records Five Medical Park Columbia, South Carolina 29203

RE: JOHN DOE DOB: 00/00/0000 Date of Accident:00/00/0000 Account Number:ROOOOOOOO

Dear Sir or Madame,

It is understanding that you are treating my above-referenced client for injuries sustained in an automobile collision which occurred on the above-referent date. I would appreciate your forwarding to me your forwarding to me related medical records for services rendered at such time as you may deem appropriate. I am enclosing an authorization signed by my client which will allow you to release this information to me and my return envelope for your convenience in doing so.

The requested medical records and notes, your bill for services rendered to this patient, and your bill for furnishing these records should be sent to me at the following address:

JFM/cgc

JOHN F. McKENZIE Post Office Box 58 Columbia, South Carolina 29202

Sincerely,

John F. McKenzie

Medicare Secondary Payer Recovery Contract

CONSENT TO RELEASE FORM

I, hereby authorize the Centers for Medicare & Medicaid Services (CMS), its agents and/or contractors to release, upon request, information related to my injury/illness and/or settlement to the individual(s) and/or firm(s) listed below: PLEASE CHECK:

[!I Claimant's attorney (Name and/or firm)

[] Insurance carrier (Name and/or company)

[J Other ______ _ (Explain) (Name and/or firm)

How long can we give out the information? (Check one Block)

[J Ongoing, beginning ________ _ Month/DateN ear

LJ Limited time __________ through _______ _ Month/DateN ear Month/DateN ear

[J One time only

Claimant's Signature Date Signed

Date oflnjury Medicare Number

If your Power of Attorney (POA) or legal representative signs this form for you, a copy of their POA or representation papers must be sent to us with this form.

Completion and signing of this consent form: • Authorizes release of information to the person named above upon their request. This means that

information disclosed to the above named person may be re-disclosed by them and may no longer be protected by law.

• Allows release of Medicare claims and other information related to your injury/illness. • Is for release of information purposes only and does not affect benefits you are entitled to under the

Medicare Program.

You have the right to revoke your authorization at any time in writing, except to the extent that CMS has already acted based on your permission. To revoke, send a written request to the address below.

Medicare Secondary Payer Contractor PO Box 33828, Detroit Ml 48232-5828

AUTHORIZATION TO RELEASE RECORDS

I hereby authorize use or disclosure of protected health information about me as described below:

1. The following specific person or class of persons or facility is authorized to make the requested use or disclosure:

His/her/its name is:-------------------­His/her/its address is:-------------------

2. The following person or class of persons may receive disclosure of protected health infom1ation about me:

His/her/its name is: John F. McKenzie or his Representative His/her/its address is: P.O. Box 58, Columbia, South Carolina 29202

3. The specific information that should be disclosed is: any and all information he desires pertaining to my medical condition or lost wages and specifically any information he desires pertaining to accidental injuries or illness. A photostatic copy or a telephonically transmitted facsimile of this authorization shall be as valid for these purposes as the original.

4. I understand that the infonnation used or disclosed may be subject tore-disclosure by the person or class of persons or facility receiving it, and would then no longer be protected by federal privacy regulations.

5. I may revoke this authorization by notifying in writing and present my written revocation to the health information management department of my desire to revoke this authorization. However, I understand that any action already taken in reliance on this authorization cannot be reversed, and my revocation will not affect those actions. I understand the medical provider to whom this authorization is furnished may not condition its treatment of me on whether or not I sign the authorization.

6. I acknowledge, and hereby consent to such, that the released information may contain alcohol, drug abuse, psychiatric, HIV testing, HIV results, or AIDS information. (Initial)

7. This authorization expires on , 20_, OR upon occunence of the following event that relates to me or to the purpose of the intended use or disclosure of infonnation about me:

WITNESS:

Printed Name of Individual

Signature of Individual

OR, if applicable

Printed Name of Individual

Signature of Parent, Guard ian, or Representative for Name of Child:

Date ofBiiih: SS#: Date of Signature:

Date of Birth: SS#: Date of Signature:

Date of Signature: _____ _

Providence Hospitals Authorization To Discl6sc Protected Health Information

Patient's Full Name Date of Birth Medical Record Number

Address Phone Number Email Address

I authorize Providence Hospitals to use ot 0 disclose and/or 0 receive Protected Health Infonnation for the following purpose: · · 0 Further Care 0 Insurance 0 Personal Records 0 Workers' Corup. 0 Attorney 0 Other: (specify) ~

Please select delivea method: 0 eDelivery (secure web link) 0 Fax 0 U.S. Mail 0 CD 0 memory stick o·patient pick-up

Release Protected Health Information to:

Name:

Address: -----------~-------­Email:

Type of infonnation requested: 0 Discharge Summmy 0 History & Physical 0 Consultation

0 taboratory Data 0 EKG 0 Physician Orders 0 Nurses Notes"·

Phone#:

Fax#:

D Clinic Records 0 X-Ray Reports D X-RayFilms 0 EUlergency Dept. Record fJ Operative Report .

0 Other:--------~-------------------_..:._-·-----D~esofcareWbercleMed:~~~~~~~~~~~~~~~~~~~--~~~~--~~~~-~-

I UNDERSTAND THA~: . . . . . . . • Upon request, I can inspect or obt<Jin a copy the information I am authorizing to be released. A f(.le for the costs of

processing this request may be charged ln accordance with SC State Law.

• The Protected Health Information used or disclosed under this authorization may be subject to redisclosure by the receiver and no longer protected by the Standal'ds for Privacy oflndividually Identifiable Health Information.

• I und~rstand that treatment, payment, enrollment in a health plan or eligibility for benefits may not be conditions on whether I sign this authorization. · ·

• I authorize the following information to be disclosed: Drug and/or alcohol abuse or treatment; Psychiatric treatment; HIV (AIDS) testing/treatment; sexually transmitted disease testing/iJ:eatment.

• Ifi have any questions about disclosure of my health information, I can contact the Release ofinforrnation staff of Health Information Management Services at Providence Hospitals (803·256-5722).

• I understand that I may revoke this authorization in Miting except to the extent that Providence Hospitals has previously used or disclosed the Protected Health Information in reliance on this authorization. To revoke this authorization, I understand that I must deliver a signed written statement clearly stating that I revoke this authorization to Health Information Management Services, Providence Hospitals, 2435 Forest Drive, Columbia, SC 29204.

• Ifi have questions regarding the disclosure of my Protected Health Information I can contact the Privacy Officer at 1-800-565-0675. .

This authorization expires six months from the date of signature, or on: ---------:-----.,..,.,..,.__,..,....,....,.

Authority or Relationship ofRepresenMive . (Attach copy of documentation of authority)

Adopted: 7/03 Reviewed: Revised: 1110

Signature of Patient or Legal Representative/Guardian

---·----·-------Date

PALMETT*EALTH

*Retain Original and Provide Patient with A Photocopy MR#/ SSN:

AUTHORIZATION FOR THE USE AND DISCLOSURE OF PROTECTED HEALTH INFORMATION

I Hereby Authorize Palmetto Health to Use or Disclose my Protected Health Information as Described Below. I understand that the information I authorize a person/facility to receive may be re-disclosed and no longer protected by state and federal regulations.

Patient Name: First Middle Last

Address: Telephone Number:

Social Security Number: Date of Birth:

Name of Person/facility Authorized to RELEASE the information: Palmetto Health

Name of Person/facility Authorized to RECEIVE the Information:

Address: Telephone Number:

City, State, and Zip Code: _____________ _ Fax Number:

Purpose of Disclosure: -------------------------------------

Dates of Treatment:

Information to be Used/Disclosed -Please check those that apply: History and Physical _ Discharge Summary _ Operative Report Other (specify) _________ _ Progress Notes Laboratory Report Radiology Report _ Immunization Record Billing Summary Consultation Report _ Pathology Report _ Entire Medical Record

I understand that in the event I was treated for drug or alcohol abuse, psychiatric condition, communicable diseases including HIV/AIDS this information will be included as part of my medical record to the above-named person/facility.

Palmetto Health may not condition treatment, payment, enrollment or eligibility for benefits on signing this authorization.

This authorization is subject to cancellation/revocation at any time, by the patient or legally qualified representative, provided that the cancellation is made in writing except to the extent that: 1. The facility has already acted on your request prior to receiving the request to cancel the authorization; or 2. If the authorization was given to release records to your insurance company in order to obtain insmance coverage.

This authorization will automatically expire in 90 days unless otherwise stated.

Expiration Date:

Signature of Patient or Legally Qualified Representative Date

Relationship of Legally Qualified Representative

Please Address Correspondence to the Appropriate Address:

Palmetto Health Richland Palmetto Health Baptist Insert Respective Department Name Here Five Richland Medical Park

Insert Respective Department Name Here Taylor at Marion Street

Columbia, SC 29203 Columbia, SC 29220

COR6 -· 4/01/03

Palmetto Health Baptist Easley Insert Respective Department Name Here P.O. Box 2129 Easley, SC 29641

MEDICAL RECORDS ~LEXINGTON ~ MEDICAL CENTER 2720 Sunset Blvd., West Columbia SC 29169 • (803) 791-2264 • FAX: (803) 791-2136

Authorization for Release of Protected Health Information Patient's full name at the time of treatment: _______________________________ _

Date of Birth: __ _ Social Security Number: ______ - ____ - _______ _

Date(s) of treatment:--------------------------------------

Purpose of release:--------------------------------------

I authorize the following provider/entity----------------------- to release my healtll information to:

Recipient/Provider Name: ___________________________________ _

Recipient's Address: ____________________________________ _

City: _____________________ State: __________ _ ZIP: _____ _

D Mail Record D I will pick-up D FAX (to health provider or health plan only) D I request a copy of this authorization

, Information To Be Released: (Please check all that apply)

0Bill 0 Cytology Reports 0 Diagnosis List/Patient Identification 0 Emergency Department Records 0 EKG/Cardiovascular

0 Laboratory Report (type)-------------0 Mammography Films 0 Occupational Therapy Reports 0 Office Notes (type) ____________ _

0 Pathology Reports 0 Physical Therapy Reports 0 Physician Dictation (type) ___________ _

0 Pulmonary Function Test 0 Radiology Film (type) ____________ _

0 Radiology Reports 0 Speech Therapy Reports 0 Other: ________________ _

1. 1 understand that if my records contain documentation of alcohol abuse, psychiatric condition, drug abuse, or communicable diseases, this information will be released as part of my record.

2. I understand that if the person or entity receiving this information is not covered by federal privacy regulations, this information will no longer be protected and may be re-disclosed.

3. I understand that I may revoke this authorization at any time, but revocation will not apply to information that has already been released. Revocations should be sent to the address noted at the top of the form.

4. I understand that I may refuse to sign this authorization and that my refusal to sign will not affect my ability to obtain treatment. 5. 1 understand that there may be a charge for obtaining the requested information. Information on the charge can be obtained by contacting the medical records

department noted at the top of this form. 6. I understand that a copy or FAX of this document is just as valid as the original document. 7. I understand that this authorization will expire 90 days after signed unless an earlier date is specified here ______________ _

Signature of Patient or Authorized Person Date ContactTelephone Number

Relationship Reason Patient is Unable to Sign

Original to Medical Records: ___ _ Copy to: ___ _ Date Date

Verification Completed By: _______________________________ _

7181-869-1 (Rev.6/11)

~LEXINGTON ~ MEDICAL CENTER EXPEDIENTES MEDICOS 2720 Sunset Blvd., West Columbia SC 29169 • (803) 791-2264 • FAX: (803) 791-2136

Autorizacion para Divulgar Informacion Rrotegida de Salud Nombre completo del paciente en el momenta del tratamiento: __________________________ _

Fecha de Nacimiento: __ Numero de Segura Social: ______ - ____ - _______ _

Fecha(s) de tratamiento: ------------------------------------­

Prop6sito de Ia divulgaci6n: --------------------------------------

Yo autorizo al siguiente proveedor o entidad ---------------------para divulgar mi informacion de salud a:

Direccion del destinatario: -------------------------------------

Ciudad: ------------------ Estado: ----------- Codigo Postal: ______ _

0 Enviar por correo el expediente 0 Lo recogere 0 Enviar par FAX (solamente al proveedor o plan de salud) 0 Solicito una copia de esta autorizacion

Informacion Para ser Divulgada: (Por favor marque con una palomita todas las que apllcan)

0 Factura 0 Reportes de Citologfa 0 Lista de Diagn6stico/ldentificaci6n del paciente 0 Reportes del Departamento de Emergencia 0 Electrocardiograma/Cardiovascular 0 Reporte de Laboratorio (clase) __________ _ 0 Pelfculas de Mamograffa 0 Reportes de Terapia Ocupacional

0 Notas de Oficina (clase) -------------

0 Reportes de Patologfa 0 Reportes de Terapia Ffsica 0 Dictado del Medico (clase) ___________ _ 0 Prueba de Funci6n Pulmonar 0 Imagen de Radiologfa (clase) ___________ _ 0 Reportes de Radiologfa 0 Reportes de Terapia del Lenguaje 0 otro: _________________ _

1. Entiendo que si mis expedientes contienen documentacion sabre abuso de alcohol, condicion psiquiatrica, abuso de drogas o enfermedades contagiosas, esta informacion sera divulgada como parte de mi informe.

2. Entiendo que si Ia persona o entidad que recibe esta informacion no esta cubierta par regulaciones federales de privacidad, esta informacion ya no estara protegida y puede ser divulgada de nuevo.

3. Entiendo que puedo revocar esta autorizacion en cualquier momenta, pero esta revocacion no se aplicara a Ia informacion que ya ha sido divulgada. Las Revocaciones deben ser enviadas a Ia direccion anotada en Ia parte superior de este formulario.

4. Entiendo que puedo negarme a fir mar esta autorizacion y que mi denegacion a firmar no afectara mi habilidad para obtener tratamiento. 5. Entiendo que puede haber un cargo que pagar para conseguir Ia informacion solicitada.lnformacion sabre el costa puede ser obtenida contactando el departamento de

medical records que aparece en Ia parte superior de este formulario. 6. Entiendo que una copia o FAX de este documento es tan valido como el documento original. 7. Entiendo que esta autorizacion caducara en 90 dias despues de firmada, a menos que una fecha mas temprana se especifique aqui ________ _

Firma del Paciente o Persona Autorizada Fecha Numero de Teletono del Contacto

Parentesco con el Paciente Raz6n porIa cual el Paciente es lncapaz de Firmar

Original to Medical Records: ___ _ Copy to: ___ _ Date Date

Verification Completed By: ________________________________ _

Richland County Emergency Services Disclosure of Protected Health Information

HIPAA AUTHORIZATION This document contains authorization as required under the final privacy rules issued by HHS pursuant to the Health Insurance Portability and Accountability Act of I 996 (HIPAA). This form reflects only the federal requirements under HIPAA and not any additional requirements imposed by states. Unless otherwise noted, all items in this form must be completed. Please note that this model form does not reflect Federal Substance Abuse Confidentiality Requirements. Those requirements are explained at the end oft he form.

I authorize the use/disclosure of health information about me as described below. 1. Person(s) o!· class of persons authorized to use/disclose the information: RICHLAND COUNTY EMERGENCY SERVICES DEPARTMENT

2. Person(s) or class of persons authorized to receive the information:

Atty John F. McKenzie, Post Office Box 58, Columbia, SC 29202

3. Description of information that may be used/disclosed: ALL INFORMATION CONTAINED IN THIS DOCUMENT

4. The information will be used/disclosed for the following purposes: (Note: this item is not required if the disclosure is requested by the patient.)

5. l understand that if the person or entity that receives the information is not a health care provider or health plan covered by federal privacy regulations, the information described above may be redisclosed and no longer protected by these regulations. 6. [ff applicable] I understand that the person I am authorizing to use/disclose the information will receive compensation for doing so. (Note: this item is not required if the disclosure is requested by the patient.) 7. I understand that I may refuse to sign this authorization and that my refusal to sign will not affect my ability to obtain treatment or payment or my eligibility for benefits. I may inspect or copy any information used/disclosed under this authorization. (Note: this item is not required if the disclosure is requested by the patient.) 8. l understand that I may revoke this authorization in writing at any time except to the extent that action has been taken in reliance on this authorization. This authorization expires [date the request is completed by Richland County Emergency Services].

Signature of Patient or Representative Date

Patient's Name (Print)

Name of Personal Representative (if applicable) Relationship to Patient

WAGE AND SALARY VERIFICATION

DATE OF ACCIDENT: _____ _

EMPLOYER'S NAME AND ADDRESS: EMPLOYEE'S NAME AND ADDRESS:

SSN: --------------

GENTLEMEN:

The above-named person has applied for benefits for economic loss as a result of injuries sustained in an automobile accident which occurred on the date indicated. We understand this person is your employee or former employee. To assist us in determining benefits that may be due to this applicant, please provide us with the answers to the following questions. The person's written authorization for this release of this information is attached.

1. DATES OF EMPLOYMENT: FROM: ____ THROUGH: ___ _

2. JOB TITLE OR DESCRIPTION: ______________ _

3. WAGE OR SALARY AS OF DATE OF ACCIDENT:$ ______ _ D Per Hour or D Per Week or D Per Month HOURS WORKED PER WEEK: __ _

4. DATES ABSENT FOLLOWING ACCIDENT: FROM: ___ THROUGH: __

5. WAS EMPLOYEE PAID WAGES OR SALARY DURING THIS ABSENCE: DYes D No If "Yes", Amount Paid $ WHY PAID: ______ _

6. IS EMPLOYEE ENTITLED TO RECEIVE WORKERS' COMPENSATION BENEFITS AS A RESULT OF THIS ACCIDENT: DYes D No

DATE: ______________ _

SIGNED: __________ _

TITLE: _____________ _

· Sisters of Charity Providence Hospitals . A~oRI.ZATION To DISCLOSE PROTECTED HEALTH lNWORMATION

l'lrtiont's Full Nmne Pltte of Birth sociaJ security number l

1 au_thorlre Health Infotttmtio.n Management Services at Provldence Hospitals to q use or disclose to or D . receive Protected Health In.tbnnation from ·

Name:

Adruress: --------------~--------------~

for the followmg.£._urpose(s):

Phone#

Fax,#

B Atto.tncy U lnsurance (NOT HBAL'I'H) 0 Marketing Other: (spooify) _________ --"--------------

m of infon:nation requested!

Discharge Sumntaty · :B'iStol:y & Physical

Consultation O(m'l\tive Repott

[] C.lin.io Records

0 Laboratory Data. D EK:O.

§ Physician OrdeAS Ntu:oos Notes Progress Notes

0 HIV antibody reports D X-Ray~ns

8 X· Ray Fihns ~ncy Dept. Record

0 Face Sh.eet with Diagnosis

[] Oili~--·--------~------------~--------~--------------------~ Dates of care to bel disclosed:-------------------........ ---------­X UNDERSTAND TllA.Tt • A fee for the costs of;ptocesirlng this request may be charged.

·• The P~ U:ealth Infor.ooa1ion used ox disclosed und¢1: this authorization ma.y be subjoct to redisclosme by the ~i~ and no longecprotooted by the SU.udards for Privacy offudividually Identifiable llealth l.nfuiD)lifion.

· • I u.ndet8tand that treatment, payment; enr<>lhnent in ·a health plan or cUgibility for be~ may not be conditioned on whether I sign this autht1rlzation.

• lfl have any questions about tfie disclosure of my- Protected Health Info+mation.; I oon contact the Rel~ase of Jnf'otn)ation staffqfHeal!Jt. Information Management Services at Sisters of Charity Providence Hospitals (803 so3- 865-46&l or 803..:S6.5-4680

• I ~d that I may revoke this authork.ation in writing except w the cx.Wnt that FroYidonco Hospitals has previousJy used o~ disclQ~¢ the Protectod Health lilformation in reliance on tbls authorlzati.on. To revoke this authorization. I undel,'Stand tliat I must deliver a signed written statement clearly stating that I revoke this authorization to Health Infonnatton M8:nag~ment SetVices, Sisters ofCbru:ity Providence Hospitals, 2435 Forest Ddve. Columbia, SC :29204.

•· If SisMrs of Chatity ProVidence lios.J?itais m seoking this authorization fot the use or di~closure of Protected . Health Ittfunnatio.n, thou, the patient mttM receive a copy of the authorizn.tion.

Th.is authoti:zatio~ cx.pires six months from the date of signature, or on: ---~~----~----'

Authority or F.!l!atio~!Iip of Representative (Attach copy of docutnont.ation of authority)

Na.rD.e tmd '!'it1e of .Providence employee authorized. to make th~ request or dioolosute

Signature of Patient or Petsonal Rcprosontat\ve!Guardian

Dale

Demand Letters

Jack McKenzie

Personal Injury Essentials

Friday, August 21, 2020

By: Jack McKenzie

Demand Letters

Drafting a Demand Letter Send letter to the Corporation or person is liable.

Letter Should Explain:

Liability o Short description of the accident

Injury o Summary of Records/Consider including pictures

Damages o Clear list of Bills.

Proof o Make a strong statement of liability that would encourage settlement over trial.

Recommended Settlement Amount o Give an exact number you would recommend.

Timeframe o Tell them how many days they have to review.

*Sample demand letters in your materials

By: Jack McKenzie

!

------------ --- ------------------ -- ___________ j

Mr. John Doe Post Office Box 0000 Bentonville, AR 0000

Re: Your File Number: Your Insured: Date of Loss: My Clients:

My File Number:

Dear Ms. Doe:

October 10, 2013

000000-00 Store, Inc. Newberry 00/00/2000 John Smith and John Smith, Jr. (Minor child) M00-0000

I am writing in regard to the injuries suffered by my clients in the above referenced incident.

Liability

Liability is undisputed. On the night of July 15, 2012, Mr. John Doe, Jr. was with his mother, John Smith, in a Store located in Newberry, South Carolina. While in your store, Mr. Smith slipped after inadvertently walking into a puddle of water caused by a freezer located in your store that was leaking. As a result, Mr. Smith fell, hitting his head and lower back.

Injuries

After falling in your store the previous night, my client was seen on July 16, 2012, by his family doctor, John Doe, M.D., at the Family Clinic. Mr. Smith complained of lower abdominal/back pain. Upon examination, Dr. Doe ordered a pelvic x-ray to be performed at Newberry Memorial Hospital. Mr. Smith had this x-ray performed the same day. Luckily, no acute pelvic injury was noted.

Mr. Smith continued to have chronic lower back pain as a result of his fall on July 15, 2012. After being seen 2 additional times by Dr. Doe for his ongoing lower back pain, Mr. Smith was referred to Moore Orthopaedic for further evaluation and treatment.

On January 30, 2013, Mr. Smith was seen by John Doe, M.D., at the Richland Moore Orthopaedic Clinic. Mr. Smith complained of continuing lower back pain, located over the posterior sacroiliac joint area. This pain he described as sharp and episodic in nature. He stated this pain ranged from mild to severe and was worse with activity. Mr. Smith's pain was particularly aggravated by moving in the extension position. X­rays taken of Mr. Smith's spine showed no skeletal injury. Mr. Smith was diagnosed with Sl Joint Dysfunction (otherwise known as sacroilitis), caused by inflammation and pain.

As you may or may not be aware, the Hispanic population is relatively new in the Columbia, South Carolina area. Many physician's offices are not yet properly equipped with interpretation services. The notes for Mr. Smith's first evaluation by Dr. Locke state that Mr. Smith had no specific trauma or injury. However, Mr. Smith directly relates his lower back pain to the fall he sustained in your store on July 15, 2012.

Dr. Locke recommended physical therapy and an over-the-counter anti­inflammatory. He requested Mr. Smith follow-up with a Moore Orthopaedic physician in two months.

Mr. Smith followed up with his family physician, Dr. Doe, on February 5, 2013. Mr. Smith continued to complain of lower back pain, but stated he was under the care of the orthopaedic doctors and physical therapists at Moore Orthopaedic.

On March 20, 2013, Mr. Smith followed up with Dr. Doe at the Lexington Moore Orthopaedic Clinic. Mr. Smith stated he was improving but not yet fully recovered. Dr. Doe diagnosed him with ongoing Sl Joint pain and lower back Pain. Dr. Doe recommended Mr. Smith continue physical therapy. Mr. Smith is to follow up with Dr. Doe or Dr. Doe as needed.

2

Damages

Mr. Smith has incurred the following expenses:

Family Clinic Newberry Memorial Hospital Moore Orthopaedic Clinic

Total

7/16/12-2/5/12 7/16/12 1/30/12-3/20/12

Conclusion

$310.00 $285.00 $488.00

$1,083.00

This is an absolute case of liability on the part of your insured. Water from a freezer located in your store was allowed to create a puddle on the floor of one of the isles. Nothing was done to clean up the water or to warn customers that the floor was wet. Due to this negligence, my client fell and endured ongoing, chronic lower back pain as a result.

I would recommend to my client accept $10,000.00 as a full and final settlement of this claim. Please review the material enclosed and I would appreciate a response within ten (1 0) days of the date of this letter.

Sincerely Yours,

JOHN F. MCKENZIE JFM/cgc

Ms. Janie Doe P.O. Box 20000 Richmond, VA 20000

RE: My Client: My File Number: Date of Loss: Your Claim Number: Your Insured:

Dear Ms: Doe:

August 1, 2014

John Doe Ml2-0000 00/00/0000 (Newberry, SC) 0000000 Trucking, Inc John Smith (Driver)

I am writing in regard to the injuries suffered by my client in the above-referenced accident.

Liability

On March 7, 2012, my client was a passenger in his own vehicle, headed west on US 76 in Newberry. South Carolina, when your insured driver pulled out from a stop sign, leaving the back of his trailer in my client's lane of travel. It was approximately 6:20a.m., before the sun rose. and it was slightly foggy out. In his statements to the investigating officer after the accident, your driver stated that there were bumps in the road right where the stop sign was, and that he knew that he had to take these bumps slowly or he would damage the springs on this tractor-trailer. He had driven this way many times before, so he knowingly pulled out in the dark in an area where he knew he could not move quickly and where he knew he would be blocking traffic for a period of time. Given that this was not the only way that he could have traveled his route. this was extremely reckless. We have retained experts who will help show a jury why this \\,as so incredibly so.

In previous conversations you stated that you believed that the driver of Mr. Doe's vehicle was partially at fault for the accident. At one point you attempted to argue that this

negligence would be attributable to Mr. Doe, and at one point you argued that the driver of Mr. Doe 's vehicle was at least 40% at fault. Comparative negligence does not work that way in South Carolina and there are no facts that would support any allegations that a passenger in a vehicle was somehow comparatively negligent in causing an automobile accident. As far as joint and several liability goes, the applicable statute is Section 15-38-15 S.C. Code Ann. If a party is over 50% responsible, then that party is 100% responsible. Even if the other driver was partially responsible, he clearly was not over 50% responsible; your driver was. Because of this we are not willing to compromise on liability and are unwilling to negotiate this case as anything other than an admitted liability case. If you do not see things that way, then just let me know and we will move forward with the prosecution of the case otherwise.

This is a massive wreck where the car was utterly destroyed. I have enclosed several photographs, although I am sure that you already have enough to see the extent of the damages. Mr. Doe suffered massive injuries as a result of the wreck. The driver of his vehicle, Mr. Doe, was killed.

2

Injuries

My client Mr. John Doe, a thirty-nine year old male, was lucky to have survived the impact. He was found by the paramedics to be a restrained passenger in the vehicle which had suffered major damage. He had a deformity to his left femur and swelling above his left eye. He was immediately airlifted from Newberry, South Carolina to the urgent trauma center at Palmetto Richland Hospital in Columbia, South Carolina. There the treating physician noted, aside from general cuts and bruises, that there was an obvious deformed left femur fracture and significant left frontal cephalohematoma, which is bleeding inside of the skull. It was also determined that Mr. Doe had cracked a tooth. X-rays were taken, as was aCT scan. The CT scan showed that Mr. Doe had mi ld subarachnoid bleed. Another CT scan was ordered for six hours later and this showed that the bleeding had resolved. The X-rays confirmed that there was an open femoral fracture and that he had a left elbow arthrotomy, which is a traumatic opening in the joint. On the day of the accident, Mr. Jiminez underwent surgery to 'fix both his elbow and his leg. It took a surgical procedure to reduce and cleanse the dislocated elbow. It required a surgical rod inserted through his thigh bone with metallic fixation on either side of the fracture to reduce the fracture in an approximate anatomical position. These type

3

injuries leave permanent problems no matter how skilled the surgeon.

X-RAYS SHOWING FEMUR FRACTURE

Mr. Doe was kept in the hospital until March 12, 2012. I am enclosing all of these medical records for your review, but the discharge diagnoses are telling, so I am taking the liberty oflisting them out here: 1. Motor vehicle crash with injuries. 2. Traumatic brain injury. 3. Subarachnoid hemorrhage. 4. Periorbital hematoma on the left side. 5. Left femoral fracture. 6. Multiple dental fractures. 7. Left open traumatic elbow arthotomy. 8. Left grade I open femoral diaphyseal fracture. 9. Pain and agitation secondary to injuries.

On March 19, 2012, Mr. Doe went to see the physicians at Family Healthcare Newberry in order to get his stitches removed. The nurse practitioner noted that he was having difficult weight bearing and walking. He reported blurriness of vision. He also had a low-grade fever. The sutures on the elbow were removed, but there were concerns that there might be an infection in the leg. The nurse practitioner spoke with the treating physician about this and he recommended that Mr. - ~ be sent to the emergency room immediately.

Therefore, on March 19, 2012, Mr. Doe returned Palmetto Health. It was noted that he had gone to an outpatient clinic to have his sutures and staples removed, and while there the caregiver noted yellow discoloration throughout his left leg and instructed him to go to the hospital. He was evaluated and it was determined that the leg was doing well, there was no infection, but that the staples were not ready to come out. He was released on the same day.

4

On March 29, 2012, Mr. Doe followed up with his orthopaedist, who found that the wounds had healed well, but that he was using a walker. The staples were removed from the incision in the left leg and he was encouraged to continue to try to put weight on the leg.

On May 22, 2012, Mr. Doe had another CT scan ofhis head. The CT scan was deemed normal. On that same date he met with Dr. Sweet, the neurosurgeon, who felt that Mr. Doe had recovered from his head injury. He was discharged from the doctor's care and told to follow up with the orthopaedist.

On July 5, 2012, Mr. Doe again followed up with his orthopaedist who found that he was improving, was no longer using the walker, but was using a single crutch. The doctor suggested that Mr. Doe follow up with him as needed.

As you can see from the enclosed wage verification sheet, Mr. Doe missed 26 weeks of work due to the accident, a full half year of total disability.

Damages

Mr. Doe has incurred the following expenses:

Rocky Mountain Holding, LLC 03/07/2012 $24,075.30 Palmetto Health Emergency Doctors 03/07/2012 $661.26 Palmetto Health Richland 03/07/2012 $112,980.07 Palmetto Health Richland 03/19/2012 $339.00 Palmetto Health Richland 03/26/2012 $199.00 Palmetto Health Richland 05/22/2012 $1,730.00 Palmetto Health Physicians 03/07/2012-03/12/2012 $477.00 Anesthesia Consultants of Columbia 03/07/2012 $2,760.00 Pitts Radiology 03/07/2012 $1,902.00 University Specialty Clinics 03/07/2012 $2,674.65 Family Healthcare Newberry 03/19/2012 $135.00 Lost Wages 3112112-9/07/12 $9,443.20

TOTAL $157,376.48

Conclusion

This is an absolute case of liability on the part of your insured. Mr. Smith has admitted that he had to take the turn from the stop sign slowly. It was dark outside and with his tractor in the proper lane, while his trailer was not- although his headlights giving the illusjon that the entire vehicle was in his proper lane- the driver of Mr. Doe's vehicle could not see that there was a trailer basically moving at a snail's pace in his lane of travel. My client was simply a passenger in a vehicle.

Mr. Doe's medical bills were all clearly incurred because they were necessary and reasonable. I don't see how that can be argued. From the medical records, the x-rays of Mr.

5

Doe's broken leg, and the photographs of both his injuries and the his damaged vehicle, anyone can tell that this was a major accident. It will not be a difficult task to convince a jury that Mr. Doe underwent pain and suffering. He has residual scarring from the surgeries, retained hardware and permanent disfigurement, disability and a poor prognosis for the future. We have not had him rated by his orthopaedist, but we can incur that expense. We would expect at a minimum at least 10% ofhis elbow and 20% of his lower extremity. More than likely, these estimates on our part are extremely conservative. He missed approximately six months of work, which would be expected given such traumatic injuries.

I have no authority to bind my client, however, I would suggest that he accept the sum of Nine Hundred Thousand ($900,000.00) dollars in exchange for a release of your insured. Please review the material enclosed and I would appreciate a response within ten (10) days of the date of this letter.

Sincerely Yours,

JOl-IN F. MCKENZIE

JFM/cgc

6

August 1. 2014

VIA HAND DELIVERY John Doe, Esquire Main, 1 Ot11 Floor 0000 Main Street Columbia, SC 29000

Re:

Dear John:

Progressive Claim Number Progressive Insured: Accident Date: My Client: My File Number:

00-000.0000 John Smith 00/00/0000 John Doe M12-0000

Pursuant to our conversation of last week and our e-mail exchange of today, I am sending you our demand letter and the supporting documents.

Liability

Liability is undisputed. On July 4, 2012, my client was stopped in tranic, headed northbound on Fairfield Road in Columbia, South Carolina, when Ms. Smith ran into the back of him. As you can see f]·om the enclosed photographs, the impact was such that it bent dmvn the back bumper on a large van. This is not a low-impact wreck.

Injuries

My client, a twenty-three year old male, was tossed about in the vehicle upon impact. Paramedics arrived and found Mr. Doe complaining of pain in his neck, back, and lower back. He was taken to the emergency room at Richland Memorial Hospital, where x-rays were taken. The emergency room physician diagnosed my client with acute paracervical strain and lumbar strain.

The pain did not abate, but instead got worse. On July 14, 2012, he returned to the same emergency room complaining of continuing pain in his neck and back. Additional x­rays were ordered. These showed that Mr. Doe had a nondisplaced rib fracture, which caused concern with the treating physician. As you can see from the July 4t11 notes, the doctors were under the impression that this was a low impact accident, when in fact your insured driver \Vas estimated to have been traveling at twenty-five (25) miles per hour at the time of the collision. and sufficient force was there to bend a steel bumper. Given that the impact was strong enough to break a rib. the doctor reassessed their treatment an performed aCT scan of the cervical and lumbar spine. Fortunately, there were no fractures in either of these areas. Mr. Angeles was discharged home.

Due to continuing back pain, Mr. Doe went to Decker Chiropractic on July 30, 2012, complaining of pain in his back. He then went to see the physicians at Doctors Care on July 31. 2012. The doctor found his back tender to the touch and referred him to see a orthopaedist. On August 2. 2012. Mr. Angeles smv Dr. DaSilva at Midlands Orthopaedics. Dr. DaSilva diagnosed him with muscular back pain and recommended conservative care.

Mr. Angeles has incurred the following expenses:

Richland County EMS R ichl:md Emergency Room Dr. Richland Memorial Hospital Richland Emergency Room Dr. Richland Memorial Hospital Decker Chiropractic Clinic Doctors Care Moore Orthopaedics Lost Wages

Total

7/04/12 7/04/12 7/04/12 7114112 7114112 7/30/12 7/31/12 8/02112

.Conclusion

$516.50 $308.14

$1,778.00 $308.14

$8,637.00 $305.00 $108.00 $147.00 $256.00

$12,363.78

This is an absolute case of liability. There is damage to the vehicle. The treatment was conservative. There is an objective finding of a broken rib. Anyone who has had a broken rib, or a friend or a family member with a broken rib, knows that there are few things more painful. It \Von't be a difficult thing to argue to a jury.

2

My initial demand was $60,000.00. Progressive responded with an offer of $11 J~40.00. We responded to that with $50,000.00, to vvhich Progressive offered $14.000.00. My last demand vvas for $46,000.00. The ball is in your court.

Sincerely Yours,

JOHN F. MCKENZIE

JFM/cgc

Lien Negotiation

Jack McKenzie

Personal Injury Essentials

Friday, August 21, 2020

By: Jack McKenzie

Lien Negotiation

When do you run into liens? Medical bill – no contractual agreement for assignment of

benefits from third-party settlements. Payment agreement between a medical provider and a patient has provision making patient ultimately responsible for paying the amount owed for medical services.

Lien - contractual agreement assigning benefits from any third-party settlement obtained.

Ex: Jane slipped and fell in a puddle of milk at the grocery store. You are suing the store for damages. Jane went to the hospital after the accident and her insurance covered the bills. You have to pay back the insurance company for the bills if you recover for damages.

See Gray v. State Farm Auto Ins. Co., 327 S.C. 646, 491 S.E.2d 272 (S.C. App 1997).

Right of Recovery – Subrogation Clause Any policy or contract of accident and health insurance issued in this State may include provision for subrogation by the insurer to the insured's right of recovery against a liable third party for not more than the amount of insurance benefits that the insurer has paid previously in relation to the insured's injury by the liable third party. S.C. Code Ann. §38-71-190 Health insurance provider cannot obtain equitable subrogation of insured's recovery against third-party tortfeasor when it fails to include subrogation provision in health insurance policy. If included, they can recover. Shumpert v. Time Ins. Co. (S.C.App. 1998) 329 S.C. 605, 496 S.E.2d 653 Boiler plate subrogation provisions are standard among health insurance plans today – Your client’s insurance is almost guaranteed to have one.

*Case law in your materials

Right of Recovery – Government Assistance When an individual enrolls in a Medicare (65+ or disabled) or Medicaid

(financial need) – they automatically “assign the State any rights, of the individual or of any other person who is eligible for medical assistance ... and on whose behalf the individual has the legal authority to execute an assignment of such rights, to support ... and to payment for medical care from any third party.”

42 U.S.C. § 1396k(a)(1)(A) (2000)

By statute – in South Carolina such an assignment of rights is automatic. See S.C.Code Ann. § 43-7-420(A)(Supp.2002) Clients enrolled in Medicare may also have a secondary private insurance plan

(e.g., Blue Cross Blue Shield). When this occurs, any medical expenses are submitted to Medicare first. Remaining costs are submitted to the secondary insurance plan. Both will then have a right to any third party recovery.

*Case law in your materials

Right of Recovery – Workers’ Comp. A client with injuries covered under Workers’ Compensation

have a statutory right to benefits from both workers’ compensation and a third party insurer

Your client’s medical expenses should still be submitted to their insurance carrier even if it is/could be an injury covered under Workers’ Compensation.

The third party insurer then has a statutory right to recovery if your client later receives workers’ compensation benefits.

See S.C. Code Ann. § 42-1-560

*Statute in your materials

Bills, Liens and the Right to Recovery The amount a medical provider bills for is often not the

amount compensated by the insurance carrier. Medicare/Medicaid and insurance carriers have pre-set

contracted rates for each service. This is why going somewhere “in-network” is important – “in-network” = predetermined contracted rates

Ex. – the hospital bill for a CT scan may show an amount of $1,500.00. However, when this bill is submitted to Medicare, the contracted compensation rate for a CT scan may be $250.00. The hospital receives only the contracted rate in satisfaction of that bill.

Bills, Liens and the Right to Recovery Lien – this occurs when a third party (e.g., insurance carrier) has the

right to recovery from any settlement obtained. Does not include any future medical expenses – only expenses up to and at

time of settlement.

When a settlement occurs -- “the carrier shall have a lien on the proceeds of any recovery ... to the extent of the total amount of compensation, including medical and other expenses, paid, or to be paid by such carrier ... to the extent the recovery shall be deemed to be for the benefit of the carrier.”

Breeden v. TCW, Inc./Tennessee Exp.,355 S.C. 112, 120, 584 S.E.2d 379, 383 (S.C. 2003)

Why is this important? Collateral Source Rule

Bills, Liens and the Right to Recovery “The collateral source rule provides ‘that compensation received by an

injured party from a source wholly independent of the wrongdoer will not reduce the damages owed by the wrongdoer.’”

Covington v. George, 359 S.C. 100, 597 S.E.2d 142 (2004) (citing Citizens and S. Natl. Bank of South Carolina v. Gregory, 320 S.C. 90, 92, 463 S.E.2d 317, 318 (1995))

“A tortfeasor cannot “take advantage of a contract between an injured party and a third person, no matter whether the source of the funds received is ‘an insurance company, an employer, a family member, or other source.’’”

Covington v. George, 359 S.C. 100, 597 S.E.2d 142 (2004) (citing Pustaver v. Gooden, 350 S.C. 409, 413, 566 S.E.2d 199, 201 (Ct.App.2002))

Bills, Liens and the Right to Recovery Can seek damages for medical expenses in the amount billed

for those services The contracted compensation between the insurance carrier

and the medical provider are not admissible as evidence in determining the medical expenses incurred by your client.

This means even though Medicare only compensated the hospital the contracted rate ($250.00) for the CT Scan – you can seek recovery of medical expenses for the entire amount billed ($1,500.00).

See Covington v. George, 359 S.C. 100, 597 S.E.2d 142 (2004); Breenden v. TCW, Inc./Tennessee Exp.,355 S.C. 112,, 584 S.E.2d 379, (S.C. 2003)

Attorney Responsibility Bill and lien negotiations do not have to be finalized at time

of settlement. May retain funds from settlement to pay medical providers

once negotiations finalized. Funds retained for medical bills/liens must be used to

compensate medical providers. Sounds simple – but this issue has resulted in many ethics sanctions,

including disbarments. In re Walker, 406 S.C. 451, 752 S.E.2d 542 (S.C. 2013)

In re Mayer, 391 S.C. 621, 707 S.E.2d 419 (S.C. 2011)

*Case law in your materials

Attorney Responsibility Question: “Where a client has signed a “doctor's lien” and the attorney has

knowledge of the lien, but the attorney has not signed anything with the third party agreeing to honor the lien, and there is nothing in the retainer agreement or fee contract concerning payment of bills to medical providers who have been assigned a portion of the proceeds, and client requests the attorney to disregard the “doctor's lien,” is it ethical for the attorney to pay the money to the client and disregard the lien?”

Attorney Responsibility Answer from South Carolina Bar's Ethics Advisory

Committee : “A lawyer who knows his or her client has made a valid assignment

of litigation proceeds to a medical care provider may not ethically ignore the assignee's rights and pay the assigned funds to the assignor-client.”

*See handout: ETHICS WATCH, 6-DEC S.C. Law. 12

Beginning Negotiation Request all records and bills from service providers.

Read records to understand services rendered.

Check all medical bills and make sure the provider is notified of any insurance policies. Need from client: List of all providers, multiple authorization forms for records and

bills, Health Insurance Provider/Card, employer information, contact information, SSN

Understand what types of liens claims exist and what law and/or contract principles govern each type of lien claim. (Statutory or Contractual)

Explain to your client their obligation to pay lien claims.

Call and write letters to each lien claimant at the beginning of the case.

Make an Offer to settle the lien for a lower amount.

Keep the lien claimant up to date.

How to Negotiate Read the Contract Narrow the Claim Reduce for Unrelated and Unreasonable Charges Obtain Credit for Co-Pays Reduce for Actual Recovery of Medical Bills Reduce for Proportionate Share of the Statutory Cap Where

Appropriate (or if settlement occurs, for proportionate share of settlement)

Reduce for State Law Defenses Defenses and ERISA Be reasonable

*See Find Law Guide to Negotiating Liens in Personal Injury Cases

Employer Benefits/ERISA Many clients receive benefits through their employer – benefit

plans are either fully-funded or self-funded.

Fully-funded = not ERISA - state statutes apply Self-funded = ERISA

The Employee Retirement Income Security Act of 1974

(ERISA) is a federal law that sets minimum standards for most voluntarily established pension and health plans in private industry to provide protection for individuals in these plans.

What is Different About ERISA? Preemption Provisions

Federal Courts have interpreted them to displace any state effort of regulation.

ERISA plans controlled by general federal regulations only State statutes regarding insurance and recovery can be preempted under ERISA Wrongful death statutes pre-empted?

Defends on if damages are for the decedent’s beneficiaries or estate. Beneficiaries may avoid preemption.

Issues when an ERISA plan are involved often come down to the language in the contract – read the contract carefully to determine benefits under the plan

Main issue: State law make whole rule can be precluded under ERISA!

*See ERISA document in material for more information.

Good Resource

ERISA SUBROGATION: Enforcing Recoupment Provisions in ERISA-Covered Health and Disability Plans By: Thomas H. Lawrence and John M. Russell

Fair Debt Collection Some Debt Collectors will try some illegal negotiation, so

know your law! Fair Debt Collection Practices Act (FDCPA) A debt collector may not use unfair or unconscionable means to

collect or attempt to collect any debt. Collecting Interest

15 U.S.C. §1692(f)- Without expressly authorized agreement allowing interest or statute permitting the collection of interest on the principle balance (no statute allowing interest in SC), a company may NOT collect interest.

*Case law in your materials

By: Jack McKenzie

S.C. Code Ann. § 38-71-190

This document is current through all Legislation enacted in the 2013 Session The most current annotation is dated September 12, 2013

South Carolina Code o{Laws Annotated > TITLE 38. INSURANCE > CHAPTER 7I. ACCIDENT AND HEALTH INSURANCE > ARTICLE 1. GENERAL PROVISIONS

I§ 38-71-190. Subrogation of insuret· to insured's rights against third party.

Any policy or contract of accident and health insurance issued in this State may include provision for subrogation by the insurer to the insured's right of recovery against a liable third party for not more than the amount of insurance benefits that the insurer has paid previously in relation to the insured's injury by the liable third party. If the director or his designee, upon being petitioned by the insured, determines that the exercise of subrogation by an insurer is inequitable and commits an injustice to the insured, subrogation is not allowed. Attorneys' fees and costs must be paid by the insurer from the amounts recovered. This determination by the director or his designee may be appealed to the Administrative Law Judge Division as provided by law in accordance with Section 38-3-210.

History

Former 1976 Code§ 38-35-100 [1962 Code§ 37-447; 1974 (58) 2608] recodified as§ 38-71-190 by 1987 Act No. 155, § 1; 1988 Act No. 394, § 1; 1993 Act No. 181, § 752.

Annotations

Notes

Editor's Note

2004 Act No. 202, § 3, provides as follows:

"Wherever the term 'Administrative Law Judge Division' appears in any provision of law, regulation, or other document, it must be construed to mean the Administrative Law Court established by this act."

Case Notes

LexisNexis (R) Notes

Insurance Law: Claims & Contracts: Subrogation: General Overview 1. Insurer was not entitled to any of the settlement proceeds from the insureds' settlement with the at-fault driver because the insurer did not have a subrogation clause in its contract and the doctrine of equitable subrogation was inapplicable. Shumpert v. Time Ins. Co., 329 S.C. 605, 496 S.E.2d 653, 1998 S.C. App. LEXIS 9 (S.C. Ct. App. 1998).

I Research References & Practice Aids

LexisNexis (R) Notes

LAW REVIEWS 1. /7 S. Carolina Lawver 30. ARTICLE: SUBROGATION RIGHTS UNDER ERISA GOVERNED HEALTH PLANS. By Robert E. Hoskins. September, 2005, Copyright (c) 2005 South Carolina Bar South Carolina Lawyer.

South Carolina Code of Laws Annotated by LexisNexis ®

Copyright© 2014 LexisNexis. All rights reserved. Statutes provided under lieense from the State of South Carolina.

42 uses § I396k

Current through PL 113-163, approved 8/8114

United States Code Service- Titles 1 through 51 > TITLE 42. THE PUBLIC HEALTH AND WELFARE

> CHAPTER 7. SOCIAL SECURITY ACT > TITLE XIX. GRANTS TO STATES FOR MEDJCALASSISTANCE PROGRAMS

§ 1396k. Assignment, enforcement, and collection of rights of payments for medical care; establishment of procedures pursuant to State plan; amounts retained by State [Caution: See prospective amendment note below.]

(a) For the purpose of assisting in the collection of medical support payments and other payments for medical care owed to recipients of medical assistance under the State plan approved under this title f 42 uses §§ 1396 et seq.], a State plan for medical assistance shall--

(1) provide that, as a condition of eligibility for medical assistance under the State plan to an individual who has the legal capacity to execute an assignment for himself, the individual is required--

(A) to assign the State any rights, of the individual or of any other person who is eligible for medical assistance under this title [42 uses §§ 1396 et seq.] and on whose behalf the individual has the legal authority to execute an assignment of such rights, to support (specified as support for the purpose of medical care by a court or administrative order) and to payment for medical care from any third party;

(ll) to cooperate with the State (i) in establishing the paternity of such person (referred to in subparagraph (A)) if the person is a child born out of wedlock, and (ii) in obtaining support and payments (described in subparagraph (A)) for himself and for such person, unless (in either case) the individual is described in section 1902(1)( l)(A) [ 42 USeS § 1396a([)(l )(A 11 or the individual is found to have good cause for refusing to cooperate as determined by the State agency in accordance with standards prescribed by the Secretary, which standards shall take into consideration the best interests of the individuals involved; and

(C) to cooperate with the State in identifying, and providing information to assist the State in pursuing, any third party who may be liable to pay for care and services available under the plan, unless such individual has good cause for refusing to cooperate as determined by the State agency in accordance with standards prescribed by the Secretary, which standards shall take into consideration the best interests of the individuals involved; and

(2) provide for entering into cooperative arrangements (including financial arrangements), with any appropriate agency of any State (including, with respect to the enforcement and collection of rights of payment for medical care by or through a parent, with a State's agency established or designated under section 454(3) [42 uses § 654(31]) and with appropriate courts and law enforcement officials, to assist the agency or agencies administering the State plan with respect to (A) the enforcement and collection of rights to support or payment assigned under this section and (B) any other matters of common concern.

(b) Such part of any amount collected by the State under an assignment made under the provisions of this section shall be retained by the State as is necessary to reimburse it for medical assistance payments made on behalf of an individual with respect to whom such assignment was executed (with appropriate reimbursement of the Federal Government to the extent of its participation in the financing of such medical assistance), and the remainder of such amount collected shall be paid to such individual.

History

(Aug. 14, 1935, ch 531, Title XIX,§ 1912, as added Oct. 25, 1977,P.L. 95-142, § 11(b), 91 Stat. 1196; July 18, 1984. P.L. 98-369, Division B, Title III, Subtitle B, § 2367(b), 98 Stat. 1109; April?, 1986, P.L. 99-272, Title IX, Subtitle B, § 9503(e), 100 Stat. 207; Nov. 5, 1990, P.L. 101-508. Title IV, Subtitle B, Part 3, § 4606(a), 104 Stat. 1388-170.)

(As amended Dec. 26, 2013,P.L. 113-67, DivA, Title II, § 202(b)(2), 127 Stat. 1177.) Annotations

ETHICS WATCH, 6-DEC S.C. Law.12

6-DEC S.C. Law. 12

South Ca1·olina Lawyer

November/December, 1994

Department

ETHICS WATCH

John Freeman a

Copyright (c) 1994 by the South Carolina Bar; John Freeman

WESTLAW LAWPRAC INDEX

ETH- Ethics & conflicts of Interest

Handling Money Disputes

Three very recent cases show the danger lawyers face when they ignore doctors' lien rights. The risk of liability and ethical

impropriety arises under Rule of Professional Conduct 1.15. Rule 1.15(b) identifies ethical duties that lawyers owe directly to a

third person, including the duties to notifY the third person when the lawyer receives property in which the third person "has an

interest," and the duty to deliver to the third person "any funds or other property that the ... third person is entitled to receive."

In Matter of Edwards, 1994 WL 447635, Opinion No. 24138 (S.C., August 15, 1994), South Carolina's Supreme Court

disciplined a lawyer for violating 1.15 in connection with a doctor's lien, due to "failing to notifY medical providers of the receipt

offunds in cases and by failing to deliver those funds as agreed." The doctor's lien assignment form in Matter of Edwards was

actually signed by the lawyer. However, nothing in Rule 1.15 makes its applicability dependent on the lawyer executing any

document relating to the client's assignment of litigation proceeds.

A second relevant case is Solon Family Physicians, Inc. v. Buckles, !994 WL 422286 (Ohio App. 1994), also decided this past

August. In Buckles, the lawyer signed the doctor's lien client's assignment contract and, in addition, wrote the client's doctor

and promised "to protect any outstanding bill for your services ... and see to it that your fee is paid promptly from the proceeds

ofthe settlement."

Some cases that have imposed liability on lawyers who ignore client's assignments based on contract law principles applicable

to assignments. The Ohio court in Buckles took a different tack.lt relied on suretyship law, holding that the lawyer's undertaking

to "protect any outstanding bill" made the lawyer a surety, and thus primarily and jointly liable with the client-principal. The

court held that the lawyer's obligations to the doctor "was not extinguished by a supposed ethical dilemma."

More confirmation that lawyers must respect their client's obligations to third persons comes in the form of Leon v. Martinez, 84

N.Y.2d 83, 1994 WL 319298 (1994), decided this past July. In Leon, New York's Court of Appeals dealt with an assignment of

proceeds from a personal injury action. The defendant lawyers had drafted the assignment agreement, but had not signed it. The

lawyers disbursed all the settlement proceeds to their client, to the assignees' prejudice. The court brushed aside the defendant

lawyers' claim "that compliance with the alleged assignment would have required them to violate their ethical duties to their

client ... " The court noted that the lawyers "unquestionably had notice of the agreement ... and of the parties' objectives

in entering into that agreement."

({:; 20'14 Thomson Heuters. 1\lo clairn !o Covemrnent Work;;;,

ETHICS WATCH, 6-DEC S.C. Law. 12

The cowt viewed the crucial issues to be whether an assignment had actually been made and whether the lawyers had notice

of it prior to disbursing the funds. In this respect, the New York decision is in line with other cases holding lawyers liable

for failing to honor their clients' assignments, such as Berkowitz v. Haigood, 256 N.J. Super. 342, 606 A.2d 1157 (1992), and

Herzog v. !race, 594 A.2d 1106 (Me. 1991).

Assuming the client makes a valid assignment of which the lawyer has notice, the client-assignor's wish that the assignment

not be honored does not control the lawyer's conduct. The New York court in Leon held that the lawyer is ethically obligated

only to give the client funds in the lawyer's possession which the client is entitled to receive, "which is not the case to the extent

that the client has conveyed a right to those funds by an enforceable assignment." The court further noted that lawyers' ethical

duties do not run exclusively to their clients; ethical duties may run "to third parties as to funds in the possession of the attorney

to which those third parties are entitled." The court summed up its holding as follows:

Assuming an enforceable assignment by [the client] to plaintiffs is proven, upon execution of that

assignment, [the client's] interest in that portion ofthe recovery vested in the plaintiffs as assignees, and [the

lawyer] was then ethically obligated not only to notifY the plaintiffs *13 upon his receipt of the funds ...

but also to pay the funds to the plaintiffs as the persons then entitled to receive them.

On September 16, 1994, the South Carolina Bar's Ethics Advisory Committee approved Opinion 94-20, which addressed the

following question:

Where a client has signed a "doctor's lien" and the attorney has knowledge of the lien, but the attorney

has not signed anything with the third party agreeing to honor the lien, and there is nothing in the retainer

agreement or fee contract concerning payment of bills to medical providers who have been assigned a

portion of the proceeds, and client requests the attorney to disregard the "doctor's lien," is it ethical for the

attorney to pay the money to the client and disregard the lien?

The Committee's answer was:

A lawyer who knows his or her client has made a valid assignment oflitigation proceeds to a medical care

provider may not ethically ignore the assignee's rights and pay the assigned funds to the assignor-client.

Summary

The Rules of Professional Conduct require client loyalty. But the duty of client loyalty is not boundless. The Rules do not

provide a cover protecting lawyers who shirk their responsibilities to third parties owed under assignment Jaw or the law of

suretyship. Lawyers who agree to "protect a doctor's fee" enter into a suretyship relationship under the Buckles case. Likewise,

lawyers who have notice that their client has assigned settlement proceeds ignore the assignees' rights' at their peril.

Footnotes

a John P. Freeman is a professor at the University of South Carolina School of Law in Columbia.

6-DEC SCLAW 12

'vV':'stl;;•,vNext 0! 2(J'14 Thomson Reuters. No claim to U S. Government Works.

The Findlaw Guide to Negotiating Liens in Personal injury Cases

The FindLaw Guide to Negotiating Liens in Personal Injury Cases

For rnany attorneys repn~sentir1CJ personal

injury plaintiffs, dealinq with liens, claims

fm reimbursement, and unpaid mcd I

providers is a rnassivc~ that is takinsJ

ove1· their practin~. This qui will p a

roadrnap for negotiating liens and highlight

some of the pitfalls fm the unwary.

note that we to all I 1rns

reirnbu and unpaid bi as "I

clairns," but rernen1ber not all liens

ms are created ual, nm

the: legal effect of a valid I

Table of Contents

Introduction

How to Approach Lien Claims

Negotiating Lien Claims

they all

Know When You Are In Over Your Head

Common Sense and Courtesy Should Prevail

Conclusion

Introduction

Clients often do not understand why they have to pay any­

one back since the defendant was the one at fault in caus­

ing their personal injury. Clients can also be particularly

perplexed by the idea of repaying their own health insurance

plan, when they have spent years paying premiums.

'' Often, the work negotiating lien claims is more com plica ted than settling the underlying claim itself.

" Often, the work negotiating lien claims is more complicated

than settling the underlying claim itself. Attorneys also

generally do not receive additional payment beyond the

contingent fee from the third party settlement for the work

they perform in settling liens claims, other than the eternal

gratitude of their appreciative clients, which may or may not

go far to pay their overhead.

Given the amount of work involved, and the corresponding

lack of additional compensation, many attorneys say that

they are fine with disbursing settlement funds to the client

and instructing them to pay the liens and debts arising out

of their personal injury case. Not only is this approach not a

good idea from an ethical and legal standpoint, you will also

have very unhappy clients, who will be dealing with the col­

lection efforts of these various entities.

Done correctly, lien claims do not have to be an insurmount­

able endeavor. Moreover, as the attorney, you have signifi­

cant leverage in dealing with lien claims, if they are dealt

with prior to finalizing the third party settlement Your client

will not have this leverage over lien claimants if left to deal

on their own after the settlement

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How to Approach lien Claims

'' Attorneys have etl1 ical and fiduciary obligations to repay lien claimant.

" Having a plan and a roadmap for dealing with lien claims

is key. You do not want to be figuring out the entire body of

law governing lien claims after you have received a settle­

ment check for your client.

Start with these steps:

Attorneys have ethical and fiduciary obligations to repay

lien claimant.

Understand what types of liens claims exist and what

law and/or contract principles govern each type of lien

claim:

Statutory: Medicare, Veterans Administration, Hospital,

Medicaid, Workers Compensation, or ERISA health

insurance plans (and some of these will also be governed by contracts)

Contractual: Medical pay under auto insurance, health insurance, ERISA, individual medical providers such as

doctors, x-ray service providers, ambulance,

chiropractor, acupuncture, or prior attorney

Assess what lien claims are involved at the outset of the

case.

Explain to your client their obligation to pay lien claims

Call and write letters to each lien claimant at the

beginning of the case.

Keep the lien claimant in the loop as the case

progresses.

Contact the lien claimant to negotiate their claim

BEFORE finalizing the third party settlement.

You can find an in depth discussion of each of these steps

here.

Negotiating lien Claims

'' You have followed the above steps, so now what?

'' You have followed the above steps, so now what? Once you

have established what the lien claims are, and who is asserting

them, follow these steps for negotiating the lien claims.

I. Read the Contract

Obtain a copy of the contract language and read it

carefully. This is critical, as the contract language will

determine what type of law governs the lien claim and

what rights the lien claimant may have. You may have an

ERISA, health insurance, med pay, or individual provider

lien claim, to name a few, and each will be very different.

If the lien claim is statutory, such as Medicare, Medicaid,

or hospital, make sure you have all paperwork related to

the claim, and understand the statutory scheme appli­

cable to the lien claim.

2. Narrow the Claim

When you read the contract or statutory language,

determine the parameters of the lien claim. First, make

sure they have a right to the claim that they are making.

Second, know what settlement funds the lien claimant

can go after. Most contract language limits recovery

to 3rd party cases, and insurers do not have a right

to settlement funds from Uninsured Motorist cases

or Underinsured Motorist cases (1st party claims).

However, note that some lien claimants include recovery

from all sources, so be sure to check what they are

entitled to under the contract or relevant statute.

Additionally, the contract language will reveal whether

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the lien claimant can assert, or has contracted around

certain defenses, such as the "made-whole" or common

fund doctrines. These points are discussed below in more

detail, but it's important to be aware, at the outset, whether

these arguments are going to be available to you.

If the make whole or common fund doctrines are not

available, it may be more of an uphill climb getting the

claims settled. In the context of hospital lien claims, make

sure the hospital is not attempting to balance bill your

client. Balance billing occurs when a hospital charges your

client for the difference between the hospital's charged

rate and the amount your client's health insurer paid to

the hospital as its contract rate. When this is or is not

permitted involves a lengthy discussion that you can

find here.

3. Reduce for Unrelated and Unreasonable Charges and

Obtain Credit for Co-pays

Review the itemization of charges for any unrelated

charges or double billing, and have these charges removed.

Also, review the charges to make sure that the charges are

reasonable. This may be difficult, considering that most

charges on any medical bills seem exorbitant these days.

However, after reviewing a slew of medical bills, you will

start to get a feel for the pricing of certain services in the

geographical area that you practice. When it comes time

to negotiate, raise the issue of reasonableness, and if the

defendant in your case is also raising the issue, advise of

that as well.

Importantly, be sure to obtain a credit for any co-pays

made by your client. These should be deducted from the

total lien claim.

4. Reduce for Actual Recovery of Medical Bills

It may seem obvious, but if certain medical bills are not

part of the settlement offer, argue that they should not be

included in the lien claim.

Additionally, if you have a case where the policy limits

are smaller than the value of your case, and the amount

of wage loss exceeds or makes up a large portion of the

policy limits, or the limits are so small that the amount

is less than the value for pain and suffering, make the

argument that some, if not all, of the medical bills have

not been recovered, and therefore the lien claimant cannot

seek reimbursement for the same.

See, Arkansas Dept. of Heallh and Human Services v.

Ahlborn, 126 S. Ct. 1752 (2006), "The statute does not

sanction an assignment of rights to payment for anything

other than medical expenses-- not lost wages, not pain

and suffering." While this case involved a Medicaid case,

the rationale is compelling as an equitable argument. That

is, the lien claimant cannot seek reimbursement for money

obtained for items other than the medical bills it paid for

More recently, in Wos v. E. M.A. 568 U. S. __ (March 20,

2013), the U.S. Supreme Court answered the question left

open by Ahlborn, that is, how to determine what portion

of a Medicaid beneficiary's tort recovery is attributable

to medical expenses. In Ahlborn, the parties had stipu­

lated what amount represented the medical expense

recovery, but in Wos, the parties did not. The court held

the federal anti-lien provision preempted North Carolina's

irrebuttable statutory presumption that one-third of a

tort recovery is attributable to medical expenses. The

court went on to note that a judicial or administrative

proceeding may be necessary where a Medicaid benefi­

ciary and the State are unable to agree on what portion

of a settlement represents compensation for medical

expenses. Again, this is a Medicaid case, so it is only

directly applicable to Medicaid cases, but the reasoning is

compelling as an equitable argument in other lien claim

cases.

5. Reduce to the Statutory Cap

If there is a statutory scheme for reducing the lien

claim, follow the language of the statute. For example,

in California, under Cal. Civil Code section 3040, liens

can be no more than the cost to perfect the lien and the

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amount actually paid for non-capitated charges, and 80%

for capitated charges (i.e. Kaiser, a system in which a

medical provider is given a set fee per patient). Note that

if you have a provider like Kaiser who pays the ambulance

bill, and also has charges for services at a Kaiser facility,

the ambulance bill will not be subject to the 80%

reduction, but the Kaiser charges will be.

Next, there may be a statutory ceiling on the lien claim.

In California, Cal. Civil Code section 3040(c)(2) provides

that if the insured (your client) retains an attorney, the

lien claim cannot exceed "one-third of the moneys due

to the enrollee or insured under any final judgment,

compromise, or settlement agreement:' TI1is statement

may be read to refer to the amount DUE the insured,

after reductions for costs and attorney's fees (i.e. take

one-third of the net to the client, not one-third of the

gross settlement).

This position is often met with resistance from lien

claimants, who take the position that they are entitled

to one-third of the gross settlement. Cite Gilman v.

Dalby (2009) 176 Cal.App.4th 606 (stating that the

amount recovered by the plaintiff in a personal injury

lawsuit always goes first to satisfy the attorney lien for

fees and costs before it is used to satisfy medical liens),

which strongly supports the position that attorney's fees

and costs must be taken out first before determining

the statutory cap on the lien. TI1is may be a point of

contention in your negotiations, but one that is well worth

making.

It will also be a point of contention, whether or not a

statutory scheme applicable to health insurance lien claims

will apply to ERISA claims.

Note that hospital and Medicaid also generally have

statutory schemes that will reduce lien claims. For

example, in Cal. Civ. Code 3045.4, a hospital lien is limited

to 50% of the amount due your client after paying any

prior liens. As stated above, take out attorney fees and

costs first (and any other possible prior liens), and then

the cap on the hospital lien should be 50% of the net

remaining. However, if you have a county hospital lien,

they will likely demand the full amount without reduction

because they have a first priority lien, and they do not

have to reduce for common fund.

6. Reduce for Proportionate Share of the Statutory Cap

Where Appropriate

If you have multiple lien claims, particularly when you

have a limited 3rd party policy from which to recover

funds, it can be more beneficial to figure out a propor­

tionate share of the statutory cap for each lien claim.

Many of us entered the legal profession to avoid math, but

the best way to illustrate this concept is by example:

Say you have a proposed settlement for policy limits of

$15,000.00. Your attorney fees are one-third, or $5,000.00.

To keep it simple, let's say that the costs for the case are

$500.00. Your client would due $9,500.00. I would take

the position that the health insurer's claim can be no more

than one-third of that figure, that is, $3,166.67.

In this hypothetical, say the health insurer with whom you

are negotiating has a claim of $5,000.00, and the total lien

claims are $10,000.00.

TI1erefore, the analysis of the health insurer's lien claim

would be:

GROSS RECOVERY:

Less: Attorney Fees & Costs of Recovery

NET RECOVERY

$ 15,000.00

$ 5,500.00

$ 9,500.00

Amount Subject to Liens (1/3 x $9,500.00) = $3,166.67

AMOUNT PAYABLE TO YOU IN SATISFACTION OF

YOUR PROPORTIONATE SHARE OF ALL CLAIMS

(50% ($5,000.00/$10,000.00) x amount subject to liens

$3,166.67 = $1,583.33

As you can see, we figured out what proportion the health

insurer's lien claim is to the total lien claims. In this

example, it is 50% ($5,000.00 claim divided by the total

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claims of $10,000.00). Next, you use that 50% number and

multiply it by the amount available under the cap. Here,

that is $3,166.67.

So, 50% of$3,166.67 brings us to the $1,583.33 amount

to otTer to the health insurer as their proportionate share,

before taking into account any applicable further reduc­

tions discussed below. Right there, you have reduced their

lien claim by 68.3%.

7. Reduce for Comparative Fault

If the settlement was reduced because the plaintiff was

at fault for a percentage of their damages, use this to

negotiate the lien down.

In California, Cal. Civil Code section 3040(c) provides for

a reduction for the percentage of comparative fault on the

part of your client, if certain conditions are met:

"Where a final judgment includes a special finding by a

judge, jury, or arbitrator, that the enrollee or insured was

partially at fault, the lien subject to subdivision (a) or (b)

shall be reduced by the same comparative fault percentage

by which the enrollee or insured's recovery was reduced:'

This can also be used simply as a negotiating tool, even

if you do not have a finding by a judge, jury or arbitrator.

However, it will be useless if you try after finalizing a

settlement. You must use this tool before you finalize the

third party settlement.

If the lien claimant pushes back on this, you can ask the

third party's adjuster or counsel to put in writing that their

settlement offer reflects the percentage of fault assigned

to your client. 1he Ahlborn case, supra, 126 S. Ct. 1752

(2006) is also helpful in making this argument. 1here, the

court reduced the lien claim to one-sixth of the amount

because the recovery by the plaintiff in that case was only

one-sixth of the value of the case due to plaintiffs compar­

ative fault, as evidenced by the stipulation of the parties.

8. Reduce for Made Whole

1he made whole rule basically states that a lien claimant

cannot assert its contractual right to repayment from the

insured's recovery against the third party tortfeasor if the

total amount available from the insurance and the third

party is insufficient to compensate the full loss suffered

by the insured. See, Sapiano v. Williamsburg National

Insurance Company 28 Cal.App.4th 533 (1994).

Thus, if the third party has a limited policy, and your

client is not going to be made whole by the settlement,

make the argument to the lien claimant that the settlement

does not fully compensate your client for their injuries or

damages. As stated above, there are some policies or plans

that specifically waive any rights to argue the make whole

doctrine. Even if a policy includes this language, many

insurers will consider the equities of the situation, so make

the argument regardless of whether it is allowed by the

policy or not.

9. Reduce for Common Fund

Finally, the common fund doctrine allows for reduction

for attorney's fees and a pro rata share of costs. 1hat is, the

lien claims must be reduced by the same percentage for

attorney fees as the client is being charged, and the lien

claimant must reduce for their proportionate share of the

costs incurred by your client.

In California, this reduction is reflected in California

Civ. Code section 3040(f) which states: A lien subject

to subdivision (a) or (b) is subject to pro rata reduction,

commensurate with the enrollee's or insured's reasonable

attorney's fees and costs, in accordance with the common

fund doctrine.

10. Equitable Defenses and ERISA

On April16, 2013, the U.S. Supreme Court resolved a

split among the Circuit Courts of Appeals on the appli­

cability of equitable defenses (such as comparative fault,

make whole, common fund) to self-funded ERISA plans,

where the plan purports to waive said defenses. 1he Fifth,

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Seventh, Eighth and Eleventh Circuits, had held that the

language of the plan governed. However, the TI1ird and

Ninth Circuits had found that that claims for "appropriate

equitable relief" under section 502(a)(3) of the Employee

Retirement Income Security Act of 1974 are subject to

traditional equitable defenses regardless of plan language

to the contrary. See, U.S. Airways, Inc. v. McCutchen,

663 F. 3d 671 (3rd Cir. 2011) and CGI Technologies and

Solutions v. Rose 683 F.3d 1113 (9th Cir. 2012).

The U.S. Supreme Court took up this issue in U.S.

Airways, Inc. v. McCutchen, 569 U. S. __ (2013),

and held that in a section 502(a)(3) action based on

an equitable lien by agreement, the ERISA plan's terms

govern. Neither general unjust enrichment principles nor

specific doctrines reflecting those principles can override

the applicable contract.

Importantly, the Court did not stop there. Writing for the

majority, Justice Kagan found that although "equitable

rules cannot trump a reimbursement provision, they may

aid in properly construing it. US Airways' plan is silent

on the allocation of attorney's fees, and the common-fund

doctrine provides the appropriate default rule to fill that

gap.

Justice Kagan explained that the plan's terms fail to select

between two alternatives: "whether the recovery to which

US Airways has first claim is every cent the third party

paid or, instead, the money the beneficiary took away."

And in failing to so specify, the common-fund rule is the

default rule.

"TI1is Court has 'recognized consistently' that someone

'who recovers a common fund for the benefit of persons

other than him self' is due 'a reasonable attorney's fee

from the fund as whole:"

Thus, although U.S. Airways' plan asserted a first claim on

the recovery, its formula applies to only the true recovery,

after the costs of obtaining it are deducted.

TI1is holding, which provides something for both ERISA

plans and tort plaintiffs, will no doubt greatly affect how

ERISA insurers draft the language of their plans in the

future. For a further discussion on ERISA liens, read here.

Know When You Are In Over Your Head

" Know when to bring in an attorney specialized in this area, and do so before it is too late. "

TI1is is an extremely complicated area of law, and the conse­

quences for improperly handling any lien claim are steep. Your

client could end up with little and possibly nothing if the lien

claim does not have to be reduced and there are not sufficient

funds to go around.

TI1ere are many practitioners who focus solely in this area of

law, and are well versed in the intricacies that it involves. Know

when to bring in an attorney specialized in this area, and do so

before it is too late.

Common Sense and Courtesy Should Prevail

A little knowledge and a lot of common sense and courtesy

go a long way in this area of law. Innovative legal theories and

arguments can take you part of the way, but often the best

results in lien negotiations come because of rapport with the

lien claimant and an appeal to their common sense. Generally,

people recognize that getting paid something now is much

better than risking it all and ending up with nothing.

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Conclusion

Dealing with lien claims can be a daunting task to the unwary,

but it is an integral part of personal injury claims that should

not be an afterthought. If approached from the beginning of

the case, and by using these steps and the negotiating tips that

will follow in this series, you too can conquer liens.

Keep in mind this is a very high-level summary oflien claims.

There are many pitfalls and nuances. For a further in-depth

discussion of these issues, please see:

7 Steps to Approaching Lien Claims in Personal Injury

Cases

Negotiating Tips fLlr Hospital Liens in Personal Injury

Cases

How to Deal with Medicare Liens in Personal Injury Cases

Negotiating Tips for Med Pay Claims for Reimbursement

Tips for Negotiating ERISA Liens in Personal Injury Cases

Negotiating Tips for Health Insurance Liens in Personal

Injury Cases

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Disclaimer: This summary is not intended to be exhaustive, as the cornrnentary and case law on these issues are far reaching. You should conduct your own resoarch or consult an attorney ·for advice regar·ding your specific individual situation. Additionally, cases and statutes in this area of law can change, so it is important to

conduct updated research for your case.

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325

THE REVICTIMIZATION OF PERSONAL INJURY VICTIMS BY ERISA

SUBROGATION CLAIMS

RoGER M. BARoNt ANTHONY P. LAMstt

Seizing upon ERISA preemption, the health insurance industry im­posed the right of subrogation in personal injury claims, thereby ren­

dering enforceable in federal court that which was universally prohibited by law when Congress enacted ERISA in 1974.

According to industry statistics, 1 the Employee Retirement In­come Security Act of 197 42 ("ERISA"), plans and related insurers are collecting in excess of $1 billion annually through the seizure of tort recoveries intended for personal injury victims.3 Collection agents, working for ERISA plans and their commercial insurers, aggressively pursue4 subrogation (or reimbursement) on a "first dollar priority'' ba­sis with absolutely no consideration for the impact reimbursement

t Roger M. Baron, Professor of Law at the University of South Dakota, is an expert on the area of ERISA reimbursement claims. He has published and lectured extensively on the topic. Prof. Baron may be contacted at Roger.Baron@usd.edu.

tt Anthony P. Lamb is a second-year law student at the University of South Da­kota. He has a B.A. in Criminal Justice from Grand View University and was a police officer in Lincoln, Nebraska for six years prior to law school. Anthony may be contacted at Anthony.Lamb@usd.edu.

1. "Millions and potentially billions of dollars are recouped annually by health plans." Brieffor Soc'y for Human Res. Mgmt. and U.S. Chamber of Commerce as Amici Curiae at 15, l3ereboff v. Mid Atl. Med. Servs., Inc., 547 U.S. 356 (2006) (No. 05-260), 2006 WL 467695 at *15.

2. Pub. L. No. 93-406, 88 Stat. 832 (codified at 29 U.S.C. §§ 1001-1461 (2006)). 3. "During fiscal year 2000, Healthcare Recoveries, Inc., one of the largest private

health care claims recovery services in the United States, recovered $237.3 million in health claims, and had a backlog of over $1.1 billion of potentially recoverable claims." Motion of the Am. Ass'n of Health Plans, the Am. Benefits Council, the Blue Cross Blue Shield Ass'n, the Chamber of Commerce of the U.S., and the Health Ins. Ass'n of Am. for Leave to File a Brief as Amici Curiae and Brief of Amici Curiae in Support of Petitioners at 10, n.20, Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002) (No. 99-1786), 2001 WL 487681 at *10, n.20.

4. "There are certain employers who perhaps have a terminator attitude with re­gard to pursuing subrogation even in the light of some of the most atrocious circum­stances." Audio tape: Radio Health Journal on ERISA Reimbursement (Mar. 19, 2011), available at http://erisawithprofessorbaron.com/audio-and-video/radio-health-journal­episode-on-erisa-reimbursement/. Gary Wickert, a Wisconsin attorney and spokesper­son for the subrogation industry, spoke on an episode of the Radio Health Journal hosted by moderator Reed Pence, which was broadcast on approximately 440 radio sta­tions nationwide in February 2008. Radio Health Journal is an award-winning weekly broadcast. ld.

326 CREIGHTON LAW REVIEW [Vol. 45

leaves upon the insured. 5 Language fostering these claims is found in documents created by ERISA plans, with enforcement made available through federal courts under the auspices of ERISA's broad grant of federal preemption.

In defense of the subrogation industry's efforts to seize these funds, it is claimed that subrogation is a lawful right with which in­surers have been historically vested. Recently, an attorney spokes­man for the industry claimed that the roots of ERISA subrogation trace back to the thirteenth century's Magna Carta. 6

While it is true that subrogation in a property insurance setting has been permitted historically, subrogation by health insurers was forbidden by the common law.7 Furthermore, subrogation by health insurers was uniformly prohibited in all jurisdictions until 197 4 when ERISA was adopted into law.8

Because of ERISA's preemptive effect, there is no oversight on the ability of ERISA plans and these insurers to pursue subrogation or reimbursement. It is no small irony that Congress originally passed ERISA for the purpose of uniformly protecting "[t]he interests of par­ticipants in employee benefit plans and their beneficiaries."9 The leg­islative history of ERISA establishes that Congress was motivated, at

5. See, e.g., Admin. Comm. of Wal-Mart, Inc. v. Shank, 500 F.3d 834 (8th Cir. 2007) (allowing subrogation against Wal-Mart employee rendered permanently disabled in car accident); Cagle v. Bruner, 112 F.3d 1510 (11th Cir. 1997) (permitting subroga­tion where insurer refused to pay medical bills until insured signed form acknowledging insurer's right to pursue subrogation and insured had suffered serious injuries in car accident requiring four-month hospital stay and four months of outpatient treatment); Sunbeam-Oster Co;Group Benefits Plan v. Whitehurst, 102 F.3d 1368 (5th Cir. 1996) (allowing subrogation of $500,000 settlement though insured had suffered over $2 mil­lion in damages); In Re Paris, 44 F. Supp. 2d 747 (D. Md. 1999) (allowing subrogation where defendant suffered permanent brain damage as a result of a motorcycle accident and defendant qualified as disabled, destitute adult).

6. "Insurance subrogation goes back to the Roman days and was reinforced in the Magna Carta in 1215 and by our own Supreme Court back in 1799 so it's not a new concept at all." See Audio tape: Radio Health Journal on ERISA Reimbursement, supra note 4.

7. Roger M. Baron, Public Policy Considerations Warranting Denial of Reimburse­ment to ERISA Plans: It's Time to Recognize the Elephant in the Courtroom, 55 MERCER L. REv. 595, 613-16 (2004); Roger M. Baron, Subrogation: A Pandora's Box Awaiting Closure, 41 S.D. L. REv. 237, 238-39 (1996) [hereinafter Baron, Pandora's Box].

8. The first reported judicial decision involving an effort of a health insurer to seek subrogation on a personal injury claim is the 1982 decision of Frost v. Porter Leas­ing Corp., 436 N.E.2d 387 (Mass. 1982), in which subrogation was denied.

9. 29 U.S.C. § 1001(b) provides the following: It is hereby declared to be the policy of this chapter to protect interstate com­merce and the interests of participants in employee benefit plans and their beneficiaries, by requiring the disclosure and reporting to participants and ben­eficiaries of financial and other information with respect thereto, by establish­ing standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans, and by providing for appropriate remedies, sanctions, and ready access to the Federal courts.

---~--~----

2012] REVICTIMIZATION OF PERSONAL INJURY VICTIMS 327

least in part, by "the absolute need that safeguards for plan partici­pants be sufficiently adequate and effective to prevent the numerous inequities to workers under plans which have resulted in tragic hard­ship to so many."10 The opening section of ERISA, the portion which is designated as expressing findings and public policy, 11 provides that "the continued well-being and security of millions of employees and their dependents are directly affected by these plans ... and that it is therefore desirable in the interests of employees and their benefi­ciaries ... that minimum standards be provided assuring the equita­ble character of such plans."12 Notwithstanding this background, the health insurance industry has been able to seize upon the vacuum cre­ated by ERISA's preemptive effect to create the reimbursement mech­anism that has the effect of crushing personal injury victims who are victimized twice-initially by a tortfeasor and then again by their own health insurer.

I. INSURANCE REGULATION

The insurance industry has escaped regulation by the Federal government. The lack of federal regulation is not evidence of congres­sional apathy but is rather attributed to the 1868 United States Su­preme Court ruling in Paul v. Virginia, 13 which held an insurance policy was not an item of interstate commerce and therefore beyond the reach of Congressional authority.14 The aftermath of the Court's ruling in Paul was the evolution of state regulation. The interests of the consuming public vis-a-vis commercial insurers became the proper subject for control and regulation by the various states.15 Each state moved into a position of aggressively and extensively regulating the insurance industry.16

States have been able to exercise. regulatory authority through statutory provisions enacted directly by the state legislature, through common law as determined by the courts, and through administrative regulation created by the state agencies.17 Each and every state ere-

10. H. R. REP. No. 93-533, at 9 (1974), reprinted in 1974 U.S.C.C.A.N. 4639, 4647; see also David M. Kono, Unraveling the Lining of ERISA Health Insurer Pockets - A Vote for National Federal Common Law Adoption of the Make Whole Doctrine, 2000 BYU L. REV. 427, 444 (2000).

11. The title to 29 U.S.C. § 1001 is "Congressional findings and declaration of policy."

12. 29 U.S.C. § 1001(a). 13. 75 u.s. 168 (1868). 14. Paul v. Virginia, 75 U.S. 168 (1868). 15. Roger M. Baron, "Consumer Protection" and ERISA, 56 S.D. L. REv. 405 (2011). 16. DVD: Understanding ERISA Liens, Presentation to North Dakota Association

for Justice (May 13, 2010) (on file with author). 17. Id.

328 CREIGHTON LAW REVIEW [Vol. 45

ated its own division or department of insurance and its own unique set of statutory provisions regulating insurance. The states have, through this process, successfully struck a balance that accommodates consumer protection and also fosters an environment where insurance companies are able to conduct business.18

The rather tenuous basis for the Court's decision in Paul-the no­tion that a policy of insurance is not an item of interstate commerce­did not endure. On June 5, 1944, the United States Supreme Court handed down United States v. South-Eastern Underwriters Ass'n, 19

overruling Paul. In South-Eastern Underwriters Ass'n, the Court held that insurance was indeed part of interstate commerce. As a result, Congress was now fully authorized to regulate the insurance industry.

The framework for extensive regulation by the states, however, had already been laid into place. The states had developed significant expertise as regulators.20 It must also be noted that the South-East­ern Underwriters Ass'n decision was handed down the day before D­day and America's entrance into the European theater of World War II. 21 It is no surprise, therefore, that Congress elected "not" to step iilto a regulatory role concerning the insurance industry. Instead, Congress quickly enacted the McCarran-Ferguson Act22 to respond to the South-Eastern Underwriters Ass'n ruling. 23 Federal public policy, as set forth in the McCarran Ferguson Act, is as follows:

Congress hereby declares that the continued regulation and taxation by the several States of the business of insurance is in the public interest, and ~hat silence on the part of Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States. 24

The McCarran Ferguson Act also expresses a presumptive form of "reverse preemption" or "deference to the states" through another pro­vision, which provides:

No Act of Congress shall be construed to invalidate, impair or supersede any law enacted by any State for the purpose of

18. Id. 19. 322 u.s. 533 (1944). 20. Baron, supra note 15. 21. ''The U.S. Supreme Court's 1944 decision in U.S. v. South-Eastern Underwrit­

ers Association probably didn't receive much public attention at the time. Besides cov­ering the tedious domain of insurance regulation, it was released June 5, the eve of D­Day." John Gibeaut, Forces of Change, A.B.A. J., January 2007, at 40, 41.

22. Ch.20, 59 Stat. 33 (1945) (codified at 15 U.S.C. § 1011 (2006)). 23. "Congressional reaction was swift and equally bold. In less than a year, Presi­

dent Franklin D. Roosevelt signed the 1945 McCarran-Ferguson Act." Gibeaut, supra note 21, at 41.

24. 15 u.s.c. § 1011.

2012] REVICTIMIZATION OF PERSONAL INJURY VICTIMS 329

regulating the business of insurance ... unless such Act spe­cifically relates to the business of insurance . . . 25

The McCarran-Ferguson Act is still with us today, and it contin­ues to be a strong expression of federal public policy that the business of insurance is appropriate for state regulation.

II. SUBROGATION ON PERSONAL INJURY CLAIMS

Subrogation allows an insurer who has indemnified an insured to stand in the shoes of the insured on a claim for compensation against a third party, usually a tortfeasor. 26 Historically, subrogation existed primarily in the area of property insurance and has remained largely stable. 27 In the 1960s automobile insurers attempted to expand sub­rogation into medical expenses and other non-property claims.28 Dur­ing this period, subrogation clauses were inserted into first party medical payments coverage in automobile policies, uninsured and un­derinsured motorist coverage, and medical and hospitalization cover­age.29 Initially, the common law successfully resisted the expansion of subrogation rights given the law's prohibitions against the assign­ment of personal injury claims30 and splitting causes of action involv~ ing personal injuries.31 The continued efforts of the insurance industry, however, eventually led many jurisdictions to allow subroga .. tion directly. 32

The states developed a wide variety of approaches regarding how to handle subrogation in personal injury claims. 33 Some states chose to preserve the common law prohibition and never permitted subroga-

25. 15 u.s.c. § 1012(b). 26. See generally RoBERT E. KEETON & ALAN I. Wrmss, INsURANCE LAw § 3.10

(1988) (defining the doctrine of subrogation). 27. Roger M. Baron, Subrogation on Medical Expense Claims: The "Double Recov·

ery" Myth and the Feasibility of Anti-Subrogation Laws, 96 DrcK. L. REV. 581, 583 (1992).

28. Id. 29. Id. 30. See, e.g., Wrightsman v. Hardware Dealers Mut. Fire Ins. Co., 147 S.E.2d 860,

861 (Ga. Ct. App. 1966) (noting that subrogation provision of the contract amounted to no more than agreement to assign personal injury claim and held provision void and of no effect).

31. See, e.g., Nationwide Mut. Ins. Co. v. DeJane, 326 N.E.2d 701, 705 (Ohio Ct. App. 1974) ("We feel that by not permitting subrogation of medical expenses we are preserving the orderly nature of practice in this state by following the rule that one cannot split a cause of action .... ").

32. See, e.g., Smith v. Travelers Ins. Co., 362 N.E.2d 264 (Ohio 1977) (effectively overruling DeJane).

33. Johnny C. Parker, The Made Whole Doctrine: Unraveling the Enigma Wrapped in the Mystery of Insurance Subrogation, 70 Mo. L. REv. 723, 737 (2005) (providing a separate analysis for each state's approach).

330 CREIGHTON LAW REVIEW [Vol. 45

tion on personal injury claims. 34 It should also be noted that some of the states that originally permitted subrogation in personal injury claims later changed course and retreated after learning that personal injury subrogation would be problematic in a number of scenarios. 35

There has been much activity in the development of the law in this regard. States have explored their options, including the option of re­turning to the common law prohibition against subrogation on per­sonal injury claims. Such anti-subrogation principles have been adopted both judicially and legislatively.36 Numerous ameliorative doctrines have also been adopted so as to avoid harsh results in indi­vidual cases. 37 In addition to outright denial as a protective measure for consumers, states have utilized other doctrines such as (1) make whole doctrine; (2) pro rata loss sharing; (3) equitable apportionment; and (4) common fund doctrine.38

It is important to remember that this development of the law in the 1960s and 1970s occurred only in the context,of automobile insur­ance coverage. There were no efforts by health insurers to seek subro­gation on personal injury claims until the 1980s. The first reported judicial decision involving an effort by a health insurer to seek subro­gation on a personal injury claim is the 1982 decision of Frost v. Porter Leasing Corp. 39 in which the court denied subrogation. Prior to this decision there are no reported cases in which a health insurer sought· subrogation on a personal injury claim. It is also important to note, of course, that the Employee Retirement Income Security Act of 197440

was enacted in 1974-ejght years prior to any documented efforts by health insurers to pursue subrogation.

III. RELEVANT PROVISIONS IN ERISA

The health insurance industry has argued that Congress, through its enactment of the Employee Retirement Income Security Act of 197441 ("ERISA") in 1974, considered and endorsed subrogation in the context of health insurance. Such a notion is absurd. When Congress passed ERISA, subrogation by a health insurer was non-existent.

34. See Baron, Pandora's Box, supra note 7, at 237 & nn.2-3 (discussing Arizona and Missouri).

35. See id. at 238-41 & nn.10-28. 36. See id. at 240 & nn.22-26 (discussing Oklahoma, Pennsylvania, Nevada, and

Kansas). 37. Parker, supra note 33, at 737 (providing a· separate analysis for each state's

approach). 38. Baron, Pandora's Box, supra note 7, at 247-60; see also Parker, supra note 33,

at 737 (providing a separate analysis for each state's approach). 39. 436 N.E.2d 387 (Mass. 1982). 40. Pub. L. No. 93-406, 88 Stat. 832 (codified at 29 U.S.C. §§ 1001-1461 (2006)). 41. Pub. L. No. 93-406, 88 Stat. 832 (codified at 29 U.S.C. §§ 1001-1461 (2006)).

2012] REVICTIMIZATION OF PERSONAL INJURY VICTIMS 331

Courts have indeed recognized that ERISA's statutory scheme neither authorizes nor prohibits "reimbursement" or "subrogation" for payments made on medical expense claims.42 Additionally, the United States Supreme Court has stated .that ERISA's "[c]arefully crafted and detailed enforcement scheme provides strong evidence that Congress did not intend to authorize other remedies that it sim­ply forgot to incorporate expressly."43

Recall that in the McCarran-Ferguson Act,44 Congress declared it was a matter of federal public policy that states, not the federal gov­ernment, should regulate insurance. Congress carried this notion for­ward in ERISA. The "saving clause" of ERISA, found at 29 U.S.C. § 1144 (b)(2)(A), provides as follows:

Except as provided in subparagraph (B), nothing in this sub­chapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, bank­ing, or securities."45

A substantial body of case law has developed concerning the ap­plication of state law in an ERISA setting.46 A detailed review of those decisions is beyond the scope of this Article. Nonetheless, it should be noted that there is substantial authority supporting the pro­position that a state's law concerning subrogation on personal injury claims-whether prohibited altogether or ameliorated by doctrines

42. Member Servs. Life Ins. Co. v. Am. Nat'l Bank & Trust Co. of Sapupla, 130 F.3d 950, 958 (lOth Cir. 1997) (quoting Ryan v. Fed. Exp. Corp., 78 F.3d 123, 127 (3d Cir. 1996)) ("ERISA says nothing about subrogation provisions. ERISA neither requires a welfare plan to contain a subrogation clause nor does it bar such clauses or otherwise regulate their content.").

43. Mertens v. Hewitt Assocs., 508 U.S. 248, 254 (1993) (quoting Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 147 (1985)).

44. Ch.20, 59 Stat. 33 (1945) (codified at 15 U.S.C. § 1011). 45. · 29 U.S.C. § 1144(b)(2)(A) (emphasis added). 46. The U.S. Supreme Court has recognized the importance of upholding the appli­

cation of state insurance law on "regulatory" matters. See Ky. Ass'n of Health Plans, Inc. v. Miller, 538 U.S. 329 (2003) (holding that Kentucky statutes making it unlawful for health insurer to discriminate through the use of exclusive healthcare provider net­works against any willing health care provider willing to comply with an insurer's terms and conditions are laws that "regulate insurance" and, as such, are applicable to HMOs operating under ERISA scheme); Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355 (2002) (holding HMO was an "insurer" subject to Illinois state regulatory law requiring binding independent medical review of HMO's decision to deny benefits); Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724 (1985) (holding Massachusetts statute mandat­ing minimum health care benefits not preempted by ERISA).

There has also been significant litigation, much of which reached the Supreme Court, over the issue of whether a "state law" is one that regulates insurance and is thereby "saved" under the saving clause of ERISA. UNUM Life Ins. Co. v. Ward, 526 U.S. 358 (1999) (opining state judicial opinions or "common law" may be regulatory in nature and thereby "saved" and applicable to ERISA insurers); Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41 (1987) (opining common law bad faith cause of action is not a "regulatory" law and is not "saved").

332 CREIGHTON LAW REVIEW [Vol. 45

such as the "make whole" or "common fund"-are indeed applicable to insurers covering all or portions of health insurance risks for partici­pants and beneficiaries covered by ERISA plans.4 7

47. The case of FMC Corp. v. Holliday, 498 U.S. 52 (1990), sets forth the control­ling principles of law for a situation where insurance is provided through an ERISA plan. In this case, the payments were made by a self-funded plan, not by an insurer. A Pennsylvania statute prohibited subrogation on personal injury claims. In making the appropriate analysis for ERISA preemption, the Court noted that, under ERISA's pre­emption clause, "any and all state laws" that "relate to an employee benefit plan" are preempted. Under the preemption clause, Pennsylvania's "anti-subrogation" statute was subject to preemption, meaning the health plan could enforce the right of subrogation.

In order to avoid preemption, the beneficiary argued that the "saving clause" ap­plied to "save" the state anti-subrogation law. ERISA's saving clause provides that "any law ... which regulates insurance" is not preempted by ERISA The Supreme Court agreed that Pennsylvania's "anti-subrogation" statute was a "law which regulate[d] in­surance," and it therefore fell within the purview of the "saving clause."

Unfortunately for the beneficiary, however, the "deemer clause" was also held ap­plicable. Under the "deemer clause," the "employee benefit plan" itself shall not "be deemed to be an insurance company or other insurer." As a result, the anti-subrogation statute of Pennsylvania, although saved, was not applicable to the reimbursement claim of the employee benefit plan by operation of the deemer clause.

In sununary, although the anti-subrogation state statute was saved from preemp­tion, it was not applicable to an employee benefit plan by virtue of the deemer clause.

Despite this unfortunate conclusion reached as a result of application of the deemer clause, the Holliday Court was careful to explicitly recognize that a state law "which regulates insurance" would be saved for (i.e., applicable to) an insurance company or insurer providing coverage to the plan. With regard to plan insurers, the Court held that while the ERISA plan may enjoy its preemptive effect, the insurer that insures such a plan does not. Such insurers are indeed subject to the states' laws concerning subrogation and reimbursement.

Employee benefit plans that are insured are subject to indirect state regula­tion. An insurance company that insures a plan remains an insurer for pur­poses of state laws, "purporting to regulate insurance" after application of the deemer clause [of ERISA]. The insurance company is therefore not relieved from state insurance regulation. The ERISA plan is consequently bound by state insurance regulations insofar as they apply to the plan's insurer.

Holliday, 498 U.S. at 62. Numerous federal courts across the country have upheld the principle that state

law applies to an insurer offering coverage through an ERISA Plan. Benefit Recovery, Inc. v. Donelon, 521 F.3d 326, 329 (5th Cir. 2008) (finding Louisiana's "make-whole doc­trine" was "saved" and applicable to ERISA insurers); Singh v. Prudential Health Care Plan, Inc., 335 F.3d 278 (4th Cir. 2003) (finding Maryland law prohibiting subrogation was "saved" and applicable to ERISA HMO insurer); Med. Mut. of Ohio v. deSoto, 245 F.3d 561 (6th Cir. 2001) (finding California law prohibiting reimbursement of medical expenses was "saved" and applicable to ERISA insurer); Providence Health Plans of Or. v. Simnitt, No. 08-44-HA, 2009 WL 700873 (D. Or. Mar. 13, 2009) (quoting Lincoln Mut. Cas. Co. v. Lectron Prods. Inc., Emp. Health Plan, 970 F.2d 206, 210 (6th Cir. 1991)) (holding stop loss insurer bound by state law concerning subrogation through ERISA's saving clause citing and quoting); Smith v. Life Ins. Co. of N. Am., No, 1:05-CV-2215-JEC, 2006 WL 2842529 (N.D. Ga. Sept. 28, 2006) (finding Georgia anti-subrogation law was "saved" and applicable to the insured ERISA plan); Magellan Health Servs., Inc v. Highmark Life Ins. Co., 755 N.W.2d 506 (Iowa 2008) (finding Iowa law was "saved" and applicable to ERISA stop loss insurer).

2012]REVICTIMIZATION OF PERSONAL INJURY VICTIMS 333

IV. OVERSIGHT (THE NEED FOR, AND THE FAILURE OF)

Both primary and secondary authorities have long recognized that subrogated recoveries are not reflected in rate determinations but rather are utilized as discretionary funds.48 The portion of the recov­ery that flows to commercial insurers is treated as a source of profit and may be utilized for enhanced executive compensation or other pa­rochial matters. Any portion of the recovery that flows to the em­ployer (plan sponsor) results in a windfall recovery to the employer on a risk that had previously been distributed on an actuarial basis for the pool of insureds. Frequently, the employer then utilizes the wind­fall recovery simply to offset (lower) contributions by the employer for a future plan year and a different pool of insureds (Employee Retire­ment Income Security Act of 197449 ("ERISA") participants and beneficiaries). 50

In US Airways, Inc. v. McCutchen,51 the United States Court of Appeals for the Third Circuit recently recognized the windfall nature of ERISA reimbursement recoveries. McCutchen, the ERISA partici­pant had been "grievously injured" and the ERISA plan, sponsored by the employer US Airways, sought reimbursement from McCutchen's tort recovery. Th_e trial court granted summary judgment for the ER­ISA plan. A three-judge panel of the Third Circuit reversed, holding that to permit full reimbursement in this case would be "inappropriate

48. JoHN F. DoBBYN, INsURANCE LAw IN A NUTSHELL 284 (3d ed. 1996), states the following:

A possible ... reason [to allow subrogation], that of ultimately reducing insur­ance rates by virtue of subrogated recoveries by insurers, has simply not come to pass. Insurers consistently fail to introduce the factor of such recoveries into rate-determining formulae, but rather apply such recoveries to increasing divi­dends to shareholders.

See also Baron, Pandora's Box, supra note 7, at 244-45 & nn.43-50. 49. Pub. L. No. 93-406, 88 Stat. 832 (codified at 29 U.S.C. §§ 1001-1461 (2006)). 50. Consider the following example: Reimbursement recoveries, subrogated recoveries, are not factored into the set­ting of the rates, and so the employees' contribution will be determined before the plan year begins .... When the money comes in, if it comes in 2011, and the testimony, as I understand it, that Martin Meyers (plan administrator) gave in his deposition, was that he just simply takes the money and deposits it into the fund. Well, 100 percent of that deposit offsets the employer's contribution. And then that frees up-he has 40,000 more dollars as the employer than he would otherwise have. So it's a windfall for the employer, of no benefit to the participants and beneficiaries, and certainly of no benefit to the participants and beneficiaries of the year 2006.

Deposition of Roger M. Baron at 54:15-55:7, Ozarks Coca-Cola/Dr Pepper Bottling Co. v. Ritter, No. 10-3067-CV-S-REL (W.D. Mo. Dec. 6, 2010) (transcript on file with authors) (establishing that the plan administrator's own testimony demonstrates that the reim­bursement is a windfall for the employer and of no benefit to plan participants), availa­ble at mms://video02. usd.edulusd/course_ videos/streaming_ videos/2010/law851/2010 12 06-095703-10.wmv.

51. No. 10-3836, 2011 U.S. App. LEXIS 22883 (3d Cir. Nov. 16, 2011).

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334 CREIGHTON LAW REVIEW [Vol. 45

and inequitable," and therefore not permissible under ERISA §503(a)(3).52 Responding to the argument that the reimbursement proceeds were needed for the operation of the plan as a cost saving measure, the Third Circuit stated, "US Airways cannot plausibly claim it charged lower premiums because it anticipated a windfall .... [The reimbursement award for the plan] amounts to a windfall for US Airways, which did not exercise its subrogation rights or contribute to the cost of obtaining the third-party recovery. Equity abhors a wind­fall."53 Clearly, the utilization of subrogated recoveries never flows to the benefit of the pool of insureds for which the risk of loss had previ­ously been distributed. 54

ERISA plans and their insurers create the right of subrogation (reimbursement) through provisions in the plan document. These doc­uments are unilaterally drafted and implemented without oversight by any regulatory authority. Absent ERISA's preemption of state law, the matter of subrogation would be subject to conformity with stafe law in accordance with the historical background for regulation of the insurance industry. 55 Furthermore, ERISA plans are free to amend these documents at any time, for any reason, and without the neces­sity of securing approval of any regulatory authority. 56

The need for oversight is critical. Insureds are vulnerable. Cor­porate entities (both employers and insurers) and their executives are allowed to profit in unchecked fashion at the expense of those who were promised insurance coverage.57 The respected lawyer, scholar,

52. US Airways, Inc. v. McCutchen, No. 10-3836, 2011 U.S. App. LEXIS 22883, at *7 (3d Cir. Nov. 16, 2011).

53. McCutchen, 2011 U.S. App. LEXIS 22883, at *20-21 (citing Prudential Ins. Co. of Am. v. S.S. American Lancer, 870 F.2d 867, 871 (2d Cir. 1989)).

54. Roger M. Baron & Delia M. Druley, ERISA Reimbursement Proceeds: Where Does the Money Go?, MINNESOTA TRIAL; Spring 2010, at 10. This article has been also been published or is scheduled to be published in journals sponsored by trial lawyers in Pennsylvania, California, Colorado, Wyoming, North Dakota, and South Dakota.

55. As already pointed out, intensive state regulation of insurance evolved as a result of the Supreme Court's ruling in 1868 that Congress lacked authority to do so. When the Supreme Court reversed itself on this issue in 1944, Congress responded by , expressing its satisfaction with state regulation through its enactment of the McCar­ran-Ferguson Act.

56. ''Employers or other plan sponsors are generally free under ERISA, for any reason at any time, to adopt, modify, or terminate welfare plans." Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 78 (1995).

57. "When an insurer recovers under the right of subrogation, it has basically rein­sured itself, and thus has suffered no loss, i.e., it has received a windfall, the very thing subrogation was created to prevent." Eric J. Pickar, Comment, Westfield Insurance Company, Inc. v. Rowe: The South Dakota Supreme Court Rejects the Common Law "Made Whole" Doctrine on a Property Insurance Subrogation Claim, 47 S.D. L. REv. 316, 338 (2002).

2012] REVICTIMIZATION OF PERSONAL INJURY VICTIMS 335

and judge Warren Freedman addressed this particular vulnerability58

as follows: The doctrine of subrogation was conceived unilaterally, nur­tured unilaterally, and cast upon the courts for the unilateral interest of insurers generally. It must be thoroughly reexam­ined from time to time. 59

V. STEPPING INTO THE VOID CREATED BY ERISA PREEMPTION

It is clear that subrogation or reimbursement under the Employee Retirement Income Security Act of 197460 ("ERISA") exists for the benefit of the insurers and employers (plan sponsors). The financial benefit yielded by this device flows exclusively for the benefit of these corporate entities, either as direct profit for insurers or as a device to lessen the employer's contribution to insurance coverage down the road for a different pool of insureds. This is done at the expense of injured victims for whom coverage had been previously assessed on an actuarial basis.

Subrogation on personal injury claims was prohibited at common law, and it was uniformly prohibited for health insurers in all jurisdic­tions in 1974 when Congress enacted ERISA. The reason that ERISA subrogation (reimbursement) exists today is because it has been fos­tered as a self-given right-a right created without oversight and con­trary to the law in effect in all jurisdictions at the time ERISA was enacted. The health insurance industry has taken advantage of the void created by ERISA's preemptive effect, enhancing the opportunity for profit at the expense of the insured who is victimized twice-once by a tortfeasor and then again by his health insurer. The health in­surance industry has, in unabated fashion, established as lawful that which was unlawful in 1974 when Congress enacted ERISA. As are­sult-and notwithstanding the fact Congress has never endorsed ER­ISA subrogation-the health insurance industry has bootstrapped itself into a $1 billion per year stream ofprofit, at the expense of per­sonal injury victims.

The Third Circuit's recent decision in US Airways, Inc. v. Mc­Cutchen, 61 presents a golden opportunity for all federal courts to re­examine the ERISA reimbursement effort. This is an excellent time for all federal courts to look at the reality that underlies the reim­bursement effort. Not only do ERISA reimbursement recoveries pro-

58. Warren Freedman died, at the age of 89, on September 6, 2010. 59. WARREN FREEDMAN, FREEDMAN's RICHARDS oN INsURANcE 360 (6th ed. 1990). 60. Pub. L. No. 93-406, 88 Stat. 832 (codified at 29 U.S.C. §§ 1001-1461 (2006)). 61. No. 10-3836, 2011 U.S. App. LEXIS 22883 (3d Cir. Nov. 16, 2011).

336 CREIGHTON LAW REVIEW [Vol. 45

duce a ''windfall" to the employer and their insurers, but also the judicial enforcement of reimbursement claims is tantamount to a "revictimization" of personal injury victims.

1s uses § 1692 Current through PL 113-145, with a gap of 113-128, approved 8/4114

United States Code Service· Titles 1 through 51 > TITLE 15. COMMERCE AND TRADE > CHAPTER 41. CONSUMER CREDIT PROTECTION > DEBT COLLECTION PRACTICES

I § 1692. Congressional findings and declaration of purpose

(a) Abusive practices. There is abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors. Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.

(b) Inadequacy of laws. Existing laws and procedures for redressing these injuries are inadequate to protect consumers.

(c) Available non-abusive collection methods. Means other than misrepresentation or other abusive debt collection practices are available for the effective collection of debts.

(d) Interstate commerce. Abusive debt collection practices arc carried on to a substantial extent in interstate commerce and through means and instrumentalities of such commerce. Even where abusive debt collection practices arc purely intrastate in character, they nevertheless directly affect interstate commerce.

(e) Purposes. It is the purpose of this title [15 USCS §§ 1692 et seq.] to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.

History

(May 29, 1968,P.L. 90-321, Title VIII,§ 802, as added Sept. 20, 1977, P.L. 95-109, 91 Stat. 874.) Annotations

Notes

Effective date of section:

This section took effect six months after enactment, as provided by § 818 of Act May 29, 1968, P.L. 90-321. as added by Act Sept. 20, 1977, P.L. 95-l 09, which appears as a note to this section.

Other provisions:

Effective date and application of Title VIII of Act May 29, 1968. Act May 29, 1968, P.L. 90-321, Title VIII, § 819 [818], as added Sept. 20, 1977, P.L. 95-109, 91 Stat. 874; Oct. 13, 2006, P.L. 109-351, Title VIII,§ 80l(a)(l), 120 Stat. 2004, provided: "This title [15 USCS §§ 1692 ct seq.] takes effect upon the expiration of six months after the date of its enactment [enacted Sept. 20, 1977]. but section 809 [15 USCS § 1692g] shall apply only with respect to debts for which the initial attempt to collect occurs after such effective date.".

1s uses § 1692/ Current through PL 113-145, with a gap of 113-128, approved 8/4114

United States Code Service - Titles 1 through 51 > TITLE 15. COMMERCE AND TRADE > CHAPTER 41.

CONSUMER CREDIT PROTECTION > DEBT COLLECTION PRACTICES

I § 1692f. Unfair practices

A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.

(2) The acceptance by a debt collector from any person of a check or other payment instrument postdated by more than five days unless such person is notified in writing of the debt collector's intent to deposit such check or instrument not more than ten nor less than three business days prior to such deposit.

(3) The solicitation by a debt collector of any postdated check or other postdated payment instrument for the purpose of threatening or instituting criminal prosecution.

(4) Depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on such check or instrument.

(5) Causing charges to be made to any person for communications by concealment of the true purpose of the communication. Such charges include, but are not limited to, collect telephone calls and telegram fees.

(6) Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if--

(A) there is no present right to possession of the property claimed as collateral through an enforceable security interest;

(B) there is no present intention to take possession of the property; or

(C) the property is exempt by law from such dispossession or disablement.

(7) Communicating with a consumer regarding a debt by post card.

(8) Using any language or symbol, other than the debt collector's address, on any envelope when communicating with a consumer by use of the mails or by telegram, except that a debt collector may use his business name if such name does not indicate that he is in the debt collection business.

History

(May 29, 1968,P.L. 90-321, Title VIII,§ 808, as added Sept. 20, 1977, P.L. 95-109, 91 Stat. 874.) Annotations

Notes

Effective date of section:

This section took effect six months after enactment, as provided by § 818 of Act May 29, 1968, P.L. 90-321, as added by Act Sept. 20, 1977, P.L. 95-109, which appears as 15 USCS § 1692 note.

IIi

I

In recent years, confusion and misinformation regarding

liability insurer obligations to Medicare have complicated

and in some instances delayed or obstructed settlements

in bodily injury cases. There are sound reasons for caution because the Medicare Secondary Payer (MSP) statute, 42 U.S.C. §l395y(b)(2)(A), imposes significant obligations upon claim­ants, their counsel, and insurers, including obligations to reimburse Medicare for its payment of a Medicare beneficiary's medi­cal expenses incurred prior to an insurance settlement, judgment, or award (known as "conditional payments"). But recently expressed concerns that liability insurers could be required to reimburse Medicare for a claimant's future medical expenses or to establish so-called Medicare set-asides (MSAs) to cover such expenses and thereby

111 Kathryn Bucher is a partner of Wiley Rein LLP, co-chair of the firm's Health Care prac­tice, and chair of the Section 111 practice group. Ms. Bucher has 25 years of experi­ence representing insurers and managed care organizations that participate in government­sponsored health care programs including Medicare. Richard L. McConnell is a partner

in Wiley Rein's Litigation and Insurance practices with 35 years of experience in complex litigation matters. Katherine R. McDonald is an associate in the In­surance and Health Care practices of Wiley Rein. All three practice tram the firm's Washington, D.C., office.

"protect Medicare's interests" are not well­founded. This article will separate fact from some of the swirling fiction that has enveloped the intersection of Medicare and commercial liability insurance.

In simple terms, the MSP statute pro­vides that to the extent a group health, workers' compensation, liability, or no-fault insurance plan (including a self-insured entity) is obligated or chooses to pay the medical expenses of a Medicare benefi­ciary, the insurance plan is the primary payer and Medicare the secondary payer. In these circumstances, Medicare may pay such expenses conditionally if payment by the commercial insurer is delayed or in dis­pute, or the existence of private insurance is unknown. If an insurer subsequently pays or settles the beneficiary's claim, Medi­care may recover its conditional payments from the beneficiary, any person or entity receiving any portion of the insurance pay­ment (including plaintiff's counsel), and/ or the insurer. Although the MSP statute was passed in 1980, there was only limited enforcement of these reimbursement pro­visions by Medicare in the ensuing years, often because Medicare was unaware of the insurer payments. In an effort to facili­tate both insurer and Medicare beneficiary compliance with, as well as federal enforce-

For The Defense • May 2013 • 49

l

II

1-

r I.

ALTERNATIVE DISPUTE RESOLUTION

ment of, these MSP obligations, Congress amended the MSP statute through enact­ment of Section 111 of the Medicare, Med­icaid, and SCHIP Extension Act of 2007 ("Section 111" or "MMSEA"), thereby im­posing tough new electronic reporting obli­gations on insurers and self-insured entities that settle or otherwise pay claims formed­ical expenses of Medicare beneficiaries.

ing regime and the threat of steep statutory fines of up to $1,000 a day for noncompli­ance, insurers, defense counsel, and the plaintiffs' bar immediately encountered a bombardment of myths and exaggerations regarding the scope and substance of their MSP obligations, which was an interesting development given that most of these obli­gations had been on the books for almost 30 years. These pronouncements included emphatic declarations that Medicare's stat­utory right to recover its payment of pre­settlement (or past) medical expenses from insurers could be extended to the right to compel reimbursement of Medicare's pay­ment of post-settlement (or future) medi­cal expenses. From such statements then sprang new rhetoric that liability insurers have some amorphous obligation to "protect Medicare's interests" proactively by allocat­ing settlement funds in most bodily injury cases to both past and future medical ex­penses, as well as by establishing Medicare set-aside arrangements to ensure that suffi­cient settlement funds are reserved to pay for future medicals. As we explain in this article, liability insurer obligations under the MSP statute simply do not extend that far. And although legislation signed into law in January of this year, and extolled by

50 • For The Defense • May 2013

many in the insurance industry, amends the MSP statute and reforms the process through which insurers coordinate bene­fits with Medicare and report payments, insurer obligations under the MSP statute remain unchanged. Medicare IVIG Access and Strengthening Medicare and Repaying Taxpayers Act of2012, Pub. L. No. 112-242, §§201-205, 126 Stat. 2374 (2013) (incorporat­ing separate House Bill1063, the Strength­ening Medicare and Repaying Taxpayers Act of2011, also known as the "SMART Act").

There really are only four legal obliga­tions that a liability insurer might incur when making a payment to a Medicare beneficiary who alleges-or executes releases for-bodily injury, emotional dis­tress, or medical expenses: • Accepting the role of primary payer

when payment to the Medicare benefi­ciary must be coordinated with Medi­care, the secondary payer, under 42 U.S.C. §1395y(b);

• Reporting its payment through the new reporting process established by Section 111 ofMMSEA, 42 U.S.C. §1395y(b)(8);

• Reimbursing Medicare for any con­ditional payments made for medi­cal expenses incurred by the claimant before the date of settlement, judgment, or award if such expenses were for the treatment of bodily injuries or emo­tional distress alleged or released in the settlement, as required by 42 C.P.R. §411.24(i); and

• Giving formal notice to Medicare under a regulation that predates Section 111, if the insurer learns that Medicare has paid for medical expenses for which the insurer is the primary payer. Reporting under Section 111 now satisfies this obli­gation as well. 42 C.P.R. §411.25. As discussed in more detail below, these

requirements have been exaggerated and distorted by players inside and outside the insurance industry. This article is intended to set the record straight.

Summing Up the law That Has Spawned So Much Confusion When Medicare pays the medical expenses of a Medicare beneficiary because it does not know that commercial insurance coverage exists or because an insurer's payment ob­ligations are not yet established (whether by settlement, judgment, or award) at the

time Medicare pays, Medicare's payment is deemed by law to be a "conditional pay­ment." It is considered "conditional" because if the insurer subsequently pays or settles a beneficiary's claim that arises from the same injuries for which the beneficiary received Medicare benefits, Medicare has the right under MSP law to recover its payment from the beneficiary, any "other party" that re­ceived some or all of the insurance payment, including legal counsel and medical provid­ers, or the insurer. The law states:

Repayment required. A primary plan, and an entity that receives payment from a primary plan, shall reimburse the appropriate Trust Fund for any pay­ment made by the Secretary under this subchapter with respect to an item or service if it is demonstrated that such primary plan has or had a responsibil­ity to make payment with respect to such item or service. A primary plan's responsibility for such payment may be demonstrated 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.

42 U.S.C. §1395y(b)(2)(B)(ii); see also 42 C.P.R. §§411.21, 411.24(g)-(i).

More specifically, both the beneficiary and any other party that received insurance proceeds have an affirmative obligation to reimburse Medicare for a conditional payment within 60 days of receiving the insurer's payment. 42 C.P.R. §411.24(h). In the event that Medicare fails to recoup its conditional payment from either, it may demand payment from the insurer "even though it [the insurer] has already reim­bursed the beneficiary or other party" for the medical expenses. 42 C.P.R. §411.24(i) (1). Medicare guidance states that Medi­care may recover up to the full amount of the "settlement, judgment, award, or other payment" received by the Medicare bene­ficiary from the insurer, regardless of the parties' allocation of damages, although Medicare typically will not try to recoup conditional payments from settlement amounts allocated to non-bodily injury damages by a jury or a court after a full hearing on the merits. 42 C.P.R. §411.37(d).

See Centers for Medicare & Medicaid Serv­ices, MMSEA Section 111: Liability Insur­ance (Including Self-Insurance), No-Fault Insurance, and Workers' Compensation User Guide, Ch. III: Policy Guidance, 36 (July 3, 2012), http://www.cms.gov/Medi­care I Coo rdi nation-of-Benefits/ Ma ndatoryl nsR ep/ NGHP _User_Guides.html. Finally, Medicare can recover double damages if it must sue to recover conditional payments. 42 U.S.C. § 139 5y(b) (2) (B) (iii).

Section 111 requires liability, no-fault, and workers' compensation insurers (col­lectively referred to as "non-group health plans" or "NGHPs") to register as a Re­sponsible Reporting Entity (RRE) with the Centers for Medicare & Medicaid Services (CMS), the agency that administers the Medicare program, when the insurer first anticipates making payment to a Medicare beneficiary that will trigger reporting. The RRE must then report the resolution of Medicare beneficiary claims above a cer­tain monetary threshold that allege bodily injury, emotional distress, or the incurrence of medical expenses, or for which the Medi­care beneficiary specifically releases the in­surer from such claims. 42 U.S. C. §1395y(b) (8); Centers for Medicare & Medicaid Serv­ices, MMSEA Section 111 User Guide, su­pra, Ch. III, at 6. Under current agency guidance, RREs also are required to re­port the resolution of claims for which the beneficiary gives the insurer a general re­lease of liability that would be sufficient to release unasserted claims of bodily injury, emotional distress, or incurred medical ex­penses. CMS argues that this reach is per­missible because its Section 111 authority is necessarily broader than its right to re­cover Medicare payments from an insurer. NGHP Town Hall Teleconference Tr., at 21 (Feb. 9, 2011). CMS ostensibly uses this au­thority to determine whether the Medicare beneficiary should be spending settlement funds on future medical care before sub­mitting claims for such to Medicare. In this situation CMS can deny Medicare benefits until the beneficiary demonstrates exhaus­tion of insurance funds.

logically, CMS Cannot Make "Conditional" Payments After the Date of Settlement By legal definition alone, Medicare's pay­ment of medical expenses incurred after

the date of settlement, judgment, or award cannot be a "conditional" payment. Under­standing why this is true is critical to understanding why liability insurers are not obligated by Medicare law to pay or allocate settlement funds to future medi­cal expenses.

Under the MSP statute itself, Medicare may not pay for medical expenses to the extent that "payment has been made or can reasonably be expected to be made under [private insurance]." 42 U.S.C. §1395y(b) (2)(A)(ii) (emphasis added). Conversely, to avoid leaving claims of Medicare ben­eficiaries and their providers pending for extended or indefinite periods of time, the MSP statute allows Medicare to make "conditional payment[s]" if the primary payer "has not made or cannot reason­ably be expected to make payment with re­spect to such item or service promptly." 42 U.S.C. §1395y(b)(2)(B)(i) (emphasis added). Prompt payment is defined by the MSP reg­ulations to mean payment within 120 days of receipt of the claim. 42 C.F.R. §411.21.

When analyzing this statutory lan­guage along with its implementing regula­tions, one finds only three circumstances in which Medicare may make a conditional payment: 1. When the Medicare "beneficiary has

filed a proper claim for liability insur­ance benefits, but [Medicare] deter­mines that the liability insurer will not pay promptly," including instances in which the liability carrier has denied the claim, 42 C.F.R. §411.52(a)(1);

2. When the "beneficiary has not yet filed a claim for liability insurance benefits," 42 C.F.R. §411.52(a)(2); and

3. When Medicare does not know that lia­bility coverage exists for the claim in question, 42 C.F.R. §411.21. Notably, in all three circumstances, final

resolution of a private insurance claim through settlement, judgment, or award would terminate Medicare's ability under the law to make a conditional payment for medical services. The first and second sit­uations require, by definition or implica­tion, that Medicare pay before settlement, judgment, or award. The third situation, which could overlap with the second situ­ation, encompasses Medicare's payment of medical expenses without knowledge of a pending liability claim, either because (1)

the beneficiary was unaware at the time of services of available liability coverage, or (2) neither the beneficiary (once aware of coverage), nor the carrier, nor the medi­cal provider has informed Medicare of the available coverage. Clearly, under all three situations, a carrier's (or other party's) timely notice to Medicare of a settlement, judgment, or award,would preclude Medi­care from making any further conditional payments because Medicare would no lon­ger be able to opine that a liability pay­ment could not, reasonably or otherwise, be expected. 42 U.S.C. §1395y(b)(2)(A)(ii).

Notice to CMS maybe achieved through a carrier's quarterly Section 111 report­ing. At this time, Section 111 reporting is required for claims over $5,000, a thresh­old that will gradually be reduced to claims over $300 over the next few years. Carri­ers also can choose to give notice to CMS under 42 C.F.R. §411.25, which predates Section 111 and requires a liability carrier to give notice to CMS once it is "demon-

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For The Defense • May 2013 • 51

ALTERNATIVE DISPUTE RESOLUTION

strated" to the carrier that "CMS has made a Medicare primary payment for services for which [the carrier] has made or should have made primary payment."

This interpretation also is compelled by CMS guidance. Indeed, a chapter of the MSP Manual expressly directs Medicare contractors not to attempt recovery from liability insurers of Medicare payments

made for services provided to the bene­ficiary after the date of settlement. Cen­ters for Medicare & Medicaid Services, MSP Manual, Ch. 7, §50.5 (Oct. 1, 2003), available at http://www.cms.gov/Regulations­and- G u id an ce I Guidance/Manuals/down loads/ msp105c07.pdf (Chapter 7 is under review by CMS and not part of the current MSP Manual). Chapter 7, section 50.5, also states that "[w]hen a liability claim is pending, and Medicare made conditional payments for services rendered before settlement, and Medicare is billed after the settle­ment has been reached, the PI or carrier may recover Medicare's payment for the additional claims if Medicare did not have knowledge of them at the time of settle­ment." This statement gives further cre­dence to the utility of giving early notice to CMS of the existence or payment of lia­bility insurance when there is concern that CMS later may seek reimbursement of con­ditional payments that it may argue it made post-settlement, albeit for pre-settlement services, because it did not timely learn of the liability claim or settlement. But in no instance does CMS have authority to expand the definition of conditional pay­ment to include payments that fall outside the definition adopted by the MSP statute and regulations.

52 • For The Defense • May 2013

Although not a "conditional payment," any payment that Medicare makes to a provider for post-settlement services after receiving notice of the settlement (or judg­ment, award or other insurer payment) might be a deemed "mistaken payment" and thus be recoverable from the benefi­ciary or provider, but not the insurer. 42 C.P.R. §411.24.

Setting Aside Misconceptions About MSAs and Allocations -for Future Medicals There is no statute, regulation, or Medi­care guidance that requires liability insur­ers to allocate settlement funds between future medical expenses and other benefi­ciary costs, nor is there any corresponding requirement for liability insurers to estab­lish MSAs for payment of future medi­cal expenses. In fact, Medicare guidance clearly acknowledges that such require­ments do not exist.

MSAs are structured accounts that "set aside" a portion of settlement funds for payment of anticipated future medi­cal costs. Confusion arises in the discus­sion of liability MSAs because for years CMS has facilitated a structured approval process for workers' compensation MSAs (WCMSAs). CMS will review and approve WCMSAs when (1) the claimant is a Medi­care beneficiary and the total settlement amount is greater than $25,000; or (2) the claimant has a reasonable expecta­tion of Medicare enrollment within 30 months of the settlement date and the anticipated total settlement amount for future medical expenses and disability/ lost wages is expected to be greater than $250,000. Centers for Medicare & Medic­aid Services, Workers Compensation Medi­care Set-Aside Arrangements (WCMSAs), http:/ /www.cms.gov I Medicare/Coordination- of­Benefits/Workers-Com pen sati on-Medicare-Set­Aside-Arrangements/Whats-New/Whats-New.html. But even with this facilitation by CMS, and as we explain below, the WCMSA pro­cess is entirely voluntary for both insur­ers and Medicare beneficiaries; this is true even though workers' compensation law may require carriers to pay future medi­cal expenses and the regulations governing workers' compensation settlements make it clear that settlement funds intended to cover future medical expenses must be

exhausted before Medicare will pay ben­efits related to that workplace injury. 42 C.P.R. §411.46(a). Perhaps for this reason the use of WCMSAs has become wide­spread, which also may explain why many in the industry have incorrectly assumed the law requires them.

Despite some lingering counsel by law­yers and stru~tured settlement companies that MSAs are required in settlements of any kind with Medicare beneficiaries who are likely to incur significant future med­ical expenses, neither insurers nor Medi­care beneficiaries are required to allocate any portion of settlement funds, whether under workers' compensation plans or lia­bility policies, to future medical expenses. No such obligation is imposed by the MSP statute, Section 111, or any other laws, regulations, or Medicare guidance, and CMS has unmistakably confirmed this fact in recent court filings, CMS Regional Office communications, and periodic Sec­tion 111 Town Hall Teleconferences. See Defendant's Mot. for Summ. J., Protocols v. Leavitt, Civ. Action No. 05-cv-01492-BNB, at 3-4 (D. Colo. June 1, 2009) ("[T]here is no legal requirement that the WCMSA [workers' compensation Medicare set­aside] process be utilized by a claimant."); May 25, 2011 CMS Region VI Public Service "Handout" ("Medicare's interests must be protected; however, CMS does not mandate a specific mechanism to protect those inter­ests. The law does not require a 'set-aside' in any situation."). For example, during Town Hall teleconferences recorded by CMS, the agency has advised as follows:

What we [have] said over and over is that the worker's compensation set­aside process ... is not a required pro­cess; it's a voluntary process that's highly recommended.

NGHP Town Hall Teleconference Tr., at 23 (Mar. 24, 2009).

Liability set-asides; both of them, work­er's comp and liability, neither one of them has ever been required to partici­pate in a CMS review process.

Id. at 61. CMS has [a] formalized process to review proposals for workers' compen­sation, Medicare set aside amounts. It does not have the same formalized process for liability Medicare set aside arrangements. The process for workers'

compensation is voluntary. We have a process for an informal process on the liability side that if a plaintiff's attorney or insurer, et cetera, wishes to attach [sic] the appropriate CMS regional office and the regional office has the ability to do so workload or otherwise, that they can choose to review a proposed set aside amount if they believe there is sig­nificant dollars at issue. Again, it's not the same extensive process that we have for worker's compensation. But regard­less ... the statute has the same language in either situation ... It's literally the same physical sentence that we're not to make payment where payment has already been made.

NGHP Town Hall Teleconference Tr., at 41 (Mar. 16, 2010).

[Medicare set-asides are] not tied to [Section 111] reporting despite allega­tions by some entities that Section 111 mandates liability set-asides ... Section 111 has no such requirement.

NGHP Town Hall Teleconference Tr., at 50 (Dec. 11, 2008).

Further, CMS has made statements in other workers' compensation contexts that confirm that MSAs and allocations are not required under either the MSP statute or Section 111, although the decision not to allocate settlement funds between past and future expenses may affect Medicare's pay­ment of future medical services received by the beneficiary:

Question: How does Medicare deter­mine its interests in we cases when the parties to the settlement do not explicitly state how much of the set­tlement is for past medical expenses and how much is for future medical expenses?

Answer: A settlement that does not spe­cifically account for past versus future medical expenses will be considered to be entirely for future medical expenses once Medicare has recovered any con­ditional payments it has made. This means that Medicare will not pay for medical expenses that are otherwise reimbursable under Medicare and are related to the we case, until the entire settlement is exhausted.

See Mem. from Centers for Medicare & Medicaid Services Purchasing Policy Group to "All Associate Regional Admin-

istrators" (July 23, 2001), Exhibit A-1 to Defendant's Mot. for Summ. J., Protocols v. Leavitt, Civ. Action No. 05-cv-01492-BNB, at 3-4, (D. Colo. June 1, 2009). The Secre­tary of Health and Human Services also has stated that

there is no legal requirement that the WCMSA process be utilized by a claim­ant. However, if a claimant does not engage in the process and fails to set aside funds to protect Medicare's inter­ests, the Medicare program may refuse to pay for future medical expenses related to the workers' compensation injury until the entire workers' compen­sation settlement is exhausted.

See Defendant's Mot. for Summ. J., Proto­cols v. Leavitt, at 3-4 (emphasis added). See also Centers for Medicare & Medicaid Services, Workers' Compensation Medi­care Set-Aside Arrangements (WCMSAs), http: I /www.cms.gov I Medicare/Coordination -of­Benefits/Workers-Com pen sati on-Medicare-Set­Aside-Arrangements/Whats-New/Whats-New.html.

In summary, although Medicare ben­eficiaries may have a personal obligation or interest in certain circumstances to use some or all of the commercial insurance payments that they receive to pay for fu­ture medical expenses, the agency record provides no support for the position that in­surers are required to allocate funds tofu­ture medicals or, more specifically, to offer MSAs to claimants. Of note, several federal and state courts also have confirmed that MSAs are not required by law or regulation, and we anticipate that the number will only grow as judges become more familiar with insurer obligations under the MSP statute and Section 111. See, e.g., Bertrand v. Talen's Marine & Fuel LLC, No. 6:10-CV-1257, 2012 WL 2026998, at *3 (W.D. La. June 4, 2012) ("CMS does not currently require or ap­prove Medicare set-asides when personal injury lawsuits are settled."); Bruton v. Car­nival Corp., No. 11-21697,2012 WL 1627729, at *3 (S.D. Fla. May 2, 2012) ("There is no le­gal requirement that the settlement in this personal injury lawsuit include a Medi­care set-aside trust account[.]"); Hinsinger v. Showboat Atl. City, 18 A. 3d 229, 231 (N.J. Super. Ct. Law Div. 2011) ("Although there is no statutory or regulatory requirement to create a Medicare set aside when fu­ture medical expenses are awarded, it is recommended by the Center for Medicare

[and Medicaid Services] and has become standard practice, particularly in workers' compensation cases, to create a set aside to protect the future interests of the injured individual and Medicare.").

With that said, insurers and Medicare beneficiaries sometimes choose to invest in MSAs or other structured settlement ar­rangements as part of tFteir settlements. As

LO'::iib'!:~ll!Jt ~::~~"<lC'Ht::itll:ly ;>1~ :M~}IJilcaf~ Set-Asides ami Allocations In some circumstances, liability MSAs can provide financial protection and certainty for injured Medicare beneficiaries and fa­cilitate settlement. In many cases, however, MSAs increase the costs of settlement and raise complicated and divisive issues be­tween the parties. Any decision to allocate a portion of settlement funds to future medi­cal expenses or to utilize an MSA must take these considerations into account.

As a practical matter, and as noted above, CMS regional offices typically will not review liability MSAs, except in limited circumstances and only if scarce agency resources are available. Utilizing struc­tured arrangements therefore usually offers no protections that are associated with offi­cial agency approval. And CMS has stated repeatedly that it is not required to respect allocations unless established by a special verdict returned by a jury or by a judgment on the merits from the bench.

Although it is unclear whether claimants would be able to protect other insurance

For The Defense • May 2013 • 53

ALTERNATIVE DISPUTE RESOLUTION

proceeds from Medicare by allocating only a portion of the proceeds to future medi­cal expenses, allocation issues are some­times divisive and can impede settlement. Some claimants may attempt to minimize the portion of the settlement amount allo­cated to future medical expenses by aggres­sively pursuing an allocation that does not fairly reflect projected medical expenses.

Insurers should be wary of agreeing to un­reasonable allocations, because Medicare conceivably could use such an allocation as a basis for arguing that an insurer aided or conspired with the claimant to defraud the federal government and the Medicare Trust Fund, particularly if there appears to be a pattern of deficient allocation to future medical expenses. The transaction costs of arguing with claimants about such al­locations, the consequent delays in settle­ment negotiations, and the potential risk created by allocation deficiencies have led some liability insurers to avoid allocations in settlement agreements. MSAs also may unreasonably drive up settlement costs by giving undue attention to projected future medical expenses and ignoring weaknesses in the plaintiff's liability case, uncertainties in the damages evidence, and the compro­mise nature of settlements.

We recognize that there may be bene­fits to utilizing liability MSAs in certain circumstances. Such arrangements may facilitate settlement with a claimant who believes that an MSA is in his or her best interest. In these situations, liability insur­ers should be careful not to acquiesce in an allocation that could be seen as unrea­sonable, for the reasons described above. Requiring the claimant or claimant's coun­sel to hire the MSA consultant or otherwise to establish the MSA, rather than taking on that responsibility itself, will decrease the risk that the liability insurer is seen

54 • For The Defense • May 2013

as responsible for the allocation and also decrease the insurer's administrative costs. The best alternative may be for liability insurers to avoid any involvement in allo­cation or the establishment of an MSA, and instead settle with a claimant for a lump sum amount. The claimant and claimant's counsel are then free to set up the MSA independently of the insurer, after settle­ment and reimbursement of any Medicare conditional payment amounts. In this case, any administrative fees associated with the liability MSA should come out of the total settlement amount, and the insurer should remain uninvolved in any allocation of funds determined by the claimant.

Debunking the Alleged Duty to Protect Medicare's Interests Despite the various reporting and reim­bursement obligations discussed above that the MSP statute, including Section 111, expressly imposes on insurers, it does not levy a broader, undefined duty on lia­bility insurers "to protect Medicare's inter­ests," and thus one potentially vulnerable to evolving agency interpretation. It is only because eMS and others have so often used this expansive language that some in the industry now believe that such an amor­phous or expansive duty actually exists. The references to a "duty to protect" likely originated in the workers' compensation arena, where, we believe, the statements were directed toward the notice and repay­ment obligations imposed upon Medicare beneficiaries rather than insurance compa­nies. Examples of these references include the following agency statements:

Under the Medicare Secondary Payer provisions, Medicare is always second­ary to workers' compensation and other insurance such as no-fault and liability insurance. Accordingly, all beneficiaries and claimants must consider and pro­tect Medicare's interest when settling any workers' compensation case; even if re­view thresholds are not met, Medicare's interest must always be considered.

See Letter from Gerald Walters, Director, Financial Services Group, Office of Financial Management, eMS, to All Regional Admin­istrators (July 11, 2005) (emphasis added), http:/ /www.cms.gov /Medicare/Coordination­of-Benefits/Workers Com pAge n cy Services/ downloads/711 05Memo.pdf.

we insurers, agencies, and attorneys have significant responsibilities under the MSP provisions of the Social Security Act to protect Medicare's interests when resolving we cases. Because Medicare does not pay for an individual's we­related medical services and/or prescrip­tion drugs when the individual receives a we settlemc:;nt, judgment or award that includes funds for future medical and/or prescription drug expenses, it is in the best interest of the individual to consider Medicare at the time of settle­ment. For this reason, eMS recommends that parties to a we settlement set aside funds, known as We Medicare Set-Aside Arrangements (WeMSAs) for all future medical and/or prescription drug serv­ices related to the we injury or illness/ disease that would otherwise be reim­bursable by Medicare.

See Medicare Secondary Payer Manual, Pub. 100-05, eh. 1, §10.4.1 (Mar. 20, 2009) (emphasis added).

Recommendations, of course, are not legal requirements. As discussed above, the MSP statute, including Section 111, and its regulations only impose obligations on liability insurers to report to eMS certain payments they make to Medicare bene­ficiaries and, in some circumstances, to reimburse Medicare for conditional pay­ments made on behalf of those benefi­ciaries. Medicare's mistaken payment of medical expenses incurred after the date of settlement, judgment, or award, for what­ever reason, is not "conditional payment" and cannot create new statutory obliga­tions ofliability insurers "to protect Medi­care's interests" by reimbursing Medicare in that circumstance.

The bottom line is that Medicare does not impose an explicit or implied obligation on the part of liability insurers to "protect Medicare's interests" by paying or reimburs­ing Medicare for future medical expenses that may be incurred by Medicare beneficia­ries. Of course, insurers cannot engage in ac­tions that are intended to defraud Medicare, and they would be well-advised to avoid even the appearance of any such intentions. But liability insurers may take solace in the fact that there is no broad obligation "to protect Medicare's interests" or to allocate a portion of settlement funds for payment of a claim­ant's future medical expenses. M

Lien Negotiation Case Law

Gray v. State Farm Auto Ins. Co., 327 S.C. 646, 491 S.E.2d 272 (S.C. App 1997).

Shumpert v. Time Ins. Co. (S.C.App. 1998) 329 S.C. 605, 496 S.E.2d 653.

Breeden v. TCW, Inc./Tennessee Exp.,355 S.C. 112, 120, 584 S.E.2d 379, 383 (S.C. 2003).

Covington v. George, 359 S.C. 100, 597 S.E.2d 142 (2004) (citing Citizens and S. Natl. Bank of

South Carolina v. Gregory, 320 S.C. 90, 92, 463 S.E.2d 317, 318 (1995)).

Filing Suit/ Service Process

Jack McKenzie

Personal Injury Essentials

Friday, August 21, 2020

By: Jack McKenzie

Filing Suit/Service of Process

Filing Suit Prepare a Summons and Complaint to file in the appropriate

court and county.

Send the Clerk of Court a cover letter, the original and two copies of the Summons and Complaint, along with a return envelope and check for filing fees.

Make sure to file within the statute of limitations.

Serve within 120 days of filing. Rule 3, SCRCPS.C. R. Civ. P. 3

Finding the Defendant for Service Delve Accurint Secretary of State Corporations must register with Secretary

of State. Online search. The registered agent is who you serve.

*Examples in your materials

Serving the Defendant Serving nonresident motorist

Serve to SC DMV, pursuant to S.C. Code Ann. §15-9-350, with the last known address included.

Serving nonresident motor carrier Serve to SC DMV, pursuant to S.C. Code Ann. §15-9-360, with the last known address

included. Serving Defendant not authorized to do business in the state

Serve to SC Secretary of State, pursuant to S.C. Code Ann. §33-44-111, with the last known principal address.

Serving Registered Agent Certified Mail to address listed on SC Secretary of State

Process Server Chose a company, provide address, pay fee, receive affidavit of service

Sheriff’s Department Provide address, pay fee, receive affidavit of service

Publication Send Clerk of Court an Affidavit, Petition for Publication, and Order for Publication. Once the judge signs the Order, you can do service by publication in Newspaper

*Examples of each in your materials

By: Jack McKenzie

Rule l, SCRCP

This document reflects changes received through December I, 2013

South Carolina Court Rules > SOUTH CAROLINA RULES OF CIVIL PROCEDURE > II. COMMENCEMENT OF ACTION--SERVICE OF PROCESS, PLEADINGS, MOTIONS AND ORDERS

I RULE 3. COMMENCEMENT OF ACTION

(a) Commencement of civil action.

A civil action is commenced when the summons and complaint are filed with the clerk of court if:

(1) the summons and complaint are served within the statute of limitations in any manner prescribed by law; or

(2) if not served within the statute of limitations, actual service must be accomplished not later than one hundred twenty clays after filing.

(b) Filing ln Forma Pauperis.

(1) Except as provided in (2) below, a plaintiff who desires to file an action in forma pauperis shall file in the court a motion for leave to proceed in forma pauperis, together with the complaint proposed to be filed and an affidavit showing the plaintiff's inability to pay the fee required to file the action. If the motion is granted, the plaintiff may proceed without fmther application and file the complaint in the court without payment of filing fees.

(2) Where a party is represented in a civil action by an attorney working on behalf of or under the auspices of a legal aid society or a legal services or other nonprofit organization funded in whole or substantial part by funds appropriated by the United States Government or the General Assembly of the State of South Carolina, which has as its primary purpose the furnishing of legal services to indigent persons, or the South Carolina Bar Pro Bono Program, fees related to the filing of the action shall be waived without the necessity of a motion and court approval. Before the filing fees will be waived, the attorney representing the party must file with the clerk a written certification that representation is being provided on behalf of or under the auspices of the society, organization or program, and that the party is unable to pay the filing fees.

History

[Amended effective July I, 1994; May 5, 2003; April 27, 2004; April 28, 2011.] Annotations

Notes

Note to 2004 Amendment

This amendment rewrote subsection (a), deleted subsection (b), and renumbered subsection (c) as subsection (b). These changes are intended to reflect the legislative intent expressed in § 15-J.-20 as amended by 2002 S.C. Act No. 281' § I.

Note to 20 II Amendment

This amendment added the language of (b) (2) which allows for the waiver of the filing fees for an action when a party is represented by an attorney working on behalf of or under the auspices of a legal aid society, a legal services or other nonprofit organization, or the South Carolina Pro Bono Program.

CODE OF LAWS OF SOUTH CAROLINA ANNOTATED

Copyright © 20 I 4, The State of South Carolina

DelvF Page 1 of2

Call 770-38

HOME PATIENTS LOST? DUE D!L.!GE Ucense no : PDC001790

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REQUEST OUR SERVICES I Delve

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Send a message

to our owner

President of the company

Send !t

we are proud to be entering into our 21st year of business, and our sincere gratitude goes out to all of our clients for having faith in our ability to do an exemplary job at a fair price. Without you, we would not exist! Thank you!

H0!\1/E ABOUr US SERV!CE:S CLIENT UST HE QUEST SERVICES NEWS

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8/12/2014

8/1312014 South Carolina Secretary of State: Search Business Filings

SEARCH BUSINESS FILINGS

Corporation Name:

Options: L!&gins with •] I Search I

Registered Agent: I search]

Please do not use punctuation in your search- such as 1 1 ", @,etc. - as this may return an error. Try using partial names to search ­

i.e. "my brother" instead of "my brother's company."

Discla imer: The South Carolina Secretary of State's Business Filings databa se is provided as a convenience to our customers to research information on business entities filed with our office. Updates are uploaded every 48 hours. Users are advised that the Secretary of State, the State of South Carol ina or any agency, officer or employee of the State of South Carol ina does not guarantee the accuracy, reliability or timeliness of such information, as it is the responsibility of the business entity to inform the Secretary of State of any updated Information. While every effort is made to insure the reliability of this information, portions may be incorrect or not current. Any person or

entity who relie s on information obtained from this database does so at his own risk.

Welcome to the online Bus iness Filings search page. With this page you can search for business entities by company name or by registered agent. You may use our online search or call the Business Filings Division at (803} 734-21 58 to see if a company is in good standing or to learn the name and address of the registered agent of the entity. Images of tiled documents are not yet available online. You will still need to contact our office to request a copy of a filed document. Please note, the Secretary of State's Office does not have the names or addresses of a company's officers or directors. For this information, please contact the Department or Revenue at (803) 896-1730.

Document requests must be made on the Bus iness Filing Document Request Form and should be mailed to or hand delivered to:

SC Secretary of State's Office Attn: Business Filings Division 1205 Pendleton Street, Suite 525 Columbia, SC 29201

Information on the Bus iness Filings database reflects the information most recently filed with the Secretary of State's Office.lt is important to note that the addresses on the Website are those of the registered agent and not that of the business. If your filing information has changed, you must file the appropriate form with our office to update the inform ation. The Secretary of State has no authority to update this information without the proper form and filing fee. We cannot accept change requests by email or phone. To access our forms. please visit our Librarvof Forms and Fees page.

For additional information on Business Filings, please visit our Business Filings FAQs page.

http://w.Nw.scsos.com'Search%20Business%20Filings 1/2

8/13/2014 South Carolina Secretary of State: Search Business Filings

JOHN AND JANE DOE, l.L.P.

Note:This online database was last updated on 8/12/2014 6:01:36 PM. See our Disclaimer.

DOMESTIC I FORBGN:

STATUS:

STATE OF INCORPORATION I ORGANIZATION:

REGISTERED AGENT INFORMATION

REGISTERED AGENT NAME:

ADDRESS:

CITY:

STATE:

ZIP:

SECOND ADDRESS:

RLEDATE:

EFFECTIVE DATE:

DISSOLVED DATE:

Corporation History Records

CODE

Domestic LLP

RLEDATE

0211812014

COMMENT

Domestic

Good Standing

SOUTH CAROLINA Profit

JOHN DOE

123 ABC COLUMBIA

sc 29201

0211812014

0211812014

II

DOMESTIC LLP (211812015)

Document

Disclaimer: The South Carolina Secretary of State's Business Filings database is provided as a convenience to our customers to research information on business entities filed with our office. Updates are uploaded every 48 hours. Users are advised that the Secretary of State, the State of South Carolina or any agency, officer or employee of the State of South Carolina does not guarantee the accuracy, reliability or timeliness of such information, as it is the responsibility of the business entity to inform the Secretary of State of any updated information. While every effort is made to insure the reliability of this information, portions may be incorrect or not current. Any person or entity who relies on information obtained from this database does so at his own risk.

http:I/WMN.sos.sc.gov/indexasp?n=18&p=4&s=18&corporateid=709488 1/2

August 1, 2014

South Carolina Department of Motor Vehicles Office of General Counsel Post Office Box 1498 Blythewood, South Carolina 29016

RE: John Doe v. John Smith Docket No.:2014-CP-26-0000

Dear Sir or Madame:

Pursuant to S.C. Code Ann. §15-9-350 and §15-9-370 I am herewith serving upon you as agent for the above-named Defendant who is an out-of-state motorist, a service copy of the summons and complaint in the above-referenced action. I am also enclosing our check in the amount of $40.00 representing the required statutory fee along with an extra copy of the Summons and Complaint for your records. I would appreciate your complying with the statutory requirement by sending a copy of the summons and complaint to the Defendant by certified mail, return receipt requested, at the following last known address:

John Smith 000 E 92 Street Cleveland, Oh 40000

Please provide us 'v\ ith your standard acceptance of service in this case as soon as possible. I thank you for your cooperation.

JFM/cgc Enclosures: (2) Summons and Complaint

V cry truly yours,

John F. McKenzie Post Office Box 58 Columbia, South Carolina 29202 (803) 252-0500

August 1, 2014

South Carolina Department of Motor Vehicles Office of General Counsel Post Office Box 1497 Blythewood. South Carolina 29016

RE: John Doe v. John Smith Docket No.:20 13-CP-40-0000

Dear Sir or Madame:

Pursuant to S.C. Code Ann. § 15-9-360 I am herewith serving upon you as nonresident motor· ~arrier for the Defendant John Smith Trucking, Inc. , who is a nonresident motor carrier, a service copy of Lhe summons and complaint in the above-referenced action. I am also enclosing our check in the amount of $40.00 representing the required statutory fee along with an extra copy of the Summons and Complaint for your records. I would appreciate your complying with the statutory requirement by sending a copy of the summons and complaint to the Defendant by certified mail, return receipt requested, at the following last known address:

John Smith Trucking, Inc. 0000 South Main Street Swainsboro, GA 30000

Please provide us with your standard acceptance of service in this case as soon as possible. I thank you for your cooperation.

JFM/cgc Enclosures: (2) Sun1mons and Complaint

Check

Very truly yours,

John F. McKenzie Post Office Box 58 Columbia, South Carolina 29202 (803) 252-0500

August 8, 2011

South Carolina Secretary of State Edgar Brown Building 1205 Pendleton Street Suite 525 Columbia. South Carolina 29201

RE: John Doe v. John Smith Docket No.: 2011 CP-23-0000

Dear Sir or Madame:

Pursuant to S.C. Code Ann. ~33-44-111 1 am herewith serving upon you as agent for the above-named Defendant SM!TlL L.L.C.. \vho is a Joreign business not authorized to do business in this state. a service copy of the summons and complaint in the above-referenced action. 1 am also enclosing our check in the amount of $10.00 representing the required statutory fee along with an extra copy ofthe Summons and Complaint for your records. I would appreciate your complying with the statutory requirement by sending a copy of the summons and complaint to the Defendant by certified mail, return receipt requested, at the following last known principal address:

Sl'VHTH, L.L.C. 0000 Massingill Drive

Pickens, South Carolina 2000

Please provide us with your standard acceptance of service in this case as soon as possible. I thank you for your cooperation.

JFM/cgc Enclosures: (2) Summons and Complaint

Very truly yours,

John F. McKenzie P.O. Box 58 Columbia, SC 29202 (803) 252-0500

February 19,2014

CERTIFIED MAIL RETURN RECEIPT REQUESTED RESTRICTED DELIVERY Mr. John Smith 0000 Park Street Columbia, SC 29000

RE: John Doe v. Smith. Inc. File Number: M13-0000 Case Number: 20 14-CP-40-0000

Dear Sir or Madame:

I hereby serve upon you, as registered agent for the Defendant SMITH, Inc., via certified mail, the Summons and Complaint for the above referenced matter. Please do not hesitate to call me should you have any questions.

Sincerely yours,

JOHN F. McKENZIE

JfM/cgc

Courier Process Service, Inc. 115 E. Vermijo Avenue, Suite 202 Colorado Springs, CO 80903

RE John Doe v. John Smith

August 1, 2014

File Number M10-0000 Case Number: 201 0-CP-40-0000

Dear Sir o Madame:

I am enclosing herewith a copy of the Summons and Complaint for the above referenced matter which I would ask you serve upon the Defendant John Smith whose last known information is as follows

Fort Carson Bldg 0000 Colorado Springs, CO 00000

DOB 11/01/0000

I am also enclosing a check for $100.00 to cover your service fee. Please send your Affidavit once service has been perfected on the Defendant. If you should have any questions, please do not hesitate to contact me.

Thank you for your kind assistance in this matter.

Sincerely yours,

JOHN F. McKENZIE

JFM/cgc

Richland County Sheriff's Department The Honorable Leon Lott 5623 Two Notch Road Columbia, South Carolina 29223

RE: John Doe v. John Smith Our File Number: M13-0000 Case Number: 20 13-CP-40-0000

Dear Sheriff Lott:

I am enclosing herewith a summons and complaint in the above-captioned action which should be served upon Mr. John Smith at the following address:

Mr. John Smith 0000 Broadland Avenue

Columbia, South Carolina 2900-00 (803) 555-5555 DOB:07-17-0000

We are also enclosing here,,vith our check in the amount of $15.00 which we understand is your standard fee for service of civil process. Please return to us in the envelope provided your affidavit of service of this summons and complaint.

Thank you for your cooperation.

JFM/cgc Enclosures

Very truly yours,

J olm F. McKenzie

January 3, 2013

Beaufort County Clerk of Court The Honorable Jeri Ann Roseneau Post Office Drawer 1128 Beaufort, South Carolina 29901

RE: John Doe v. John Smith Our File Number: M12-0000

Dear Ms. Rosenueau:

Enclosed please find the original and two copies of the Summons and Complaint in the above matter. Please file the original and return the file stamped copies to me in the enclosed envelope. I am also enclosing my firm's check in the amount of $150.00 to cover your filing fee. Please call me if you have any questions.

JFM/cgc

Enclosure: Summons and Complaint Return envelope Check

Sincerely Yours,

JOHN F. McKENZIE

August23, 2012

Greenville County Clerk of Court The Honorable Paul B. Wickensimer 305 East North Street Greenville, SC 29601

RE: John Smith v. John Doe Our File Number: M00-0000 Case Number: 2012-CP-00-0000

Dear Mr. Wickensimer:

I am enclosing herewith the original and a copy each of the Affidavit, Petition for Publication, and Order for Publication in connection with the above referenced action for filing. Please sign the Order, file in the appropriate file in your office, and return the conformed, clocked copy to me in the enclosed envelope.

Thank you for your kind assistance in this matter.

JFM/cgc

Very truly yours,

McDONALD, McKENZIE, RUBIN, MILLER AND LYBRAND, L.L.P.

JOHN F. MCKENZIE

Offers of Judgment

Charlie Moore

Personal Injury Essentials

Friday, August 21, 2020

Rule 68. Offer of Judgment

Rule 68. (a) offeror must file the offer no later than 20 days before the trial

offeree may file written acceptance within 20 days of the service of the offer or at least 10 days prior to the trial date, whichever is earlier

(b) if the offer is not accepted and the offeror obtains a verdict or determination at

least as favorable as the offer, the offeror shall recover from the offeree: (1) administrative, filing, or other court costs from the date of the offer to the entry of judgment (2) if offeror is plaintiff, 8% interest computed on the amount of the verdict or award from date of the offer to entry of judgment (3) if offeror is defendant, reduction from the judgment/award of 8% interest computed on the amount of the verdict/award from date of the offer to entry of judgment

(c) this rule does not abrogate contractual rights of any parties concerning the

recovery of attorney’s fees in accordance with provisions of any written contract between parties to the action

Case Law

Black v. Roche Biomedical Labs (1993) The South Carolina Supreme Court has held that Rule 68 only applies when “the plaintiff obtains a judgment in his favor which is not “more favorable” than the offer made to him by the defendant.” Black v. Roche Biomedical Labs., a Div. of Hoffman-LaRoche, Inc., 315 S.C. 223, 226, 433 S.E.2d 21, 23 (Ct. App. 1993)(citing Delta Airlines, Inc. v. August, 450 U.S. 346, 351, 101 S.Ct. 1146, 1149, 67 L.Ed.2d 287 (1981)). Thus, South Carolina’s Rule 68, like the federal rule, requires “the plaintiff to obtain a judgment in his favor in some amount, but in an amount less than was offered.” Id. (emphasis orginial). Therefore, when a jury returns a verdict for the defense, the defendant is not entitled to an award of costs pursuant to a Rule 68 offer of judgment. Id. While no exhaustive list of individual costs recoverable exists in South Carolina, the court has held that the party seeking recovery “must point to a specific statute or rule of court to support each of his claims for costs, fees, and disbursements.” Id. at 228, 433 S.E.2d at 24. Belton v. State (2000)

“Costs are allowed when judgment is entered pursuant to an offer of judgment but these costs do not include attorney's fees.” Belton v. State, 339 S.C. 71, 73, 529 S.E.2d 4, 5 (2000)(emphasis added). “Attorney fees may be taxed, however, if otherwise allowed by statute or rule.” Id.

STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS ) COUNTY OF RICHLAND ) Civil Action No. 2014-CP-40-0123X JOHN DOE,

Plaintiff,

vs. MARY ROE,

Defendant.

))))))))))

OFFER OF JUDGMENT

Defendant John Doe makes, though his undersigned attorneys, an Offer of

Judgment to Plaintiff in this action in the amount of Three Thousand and no/100

($3,000.00) Dollars, inclusive of any and all claims brought by Plaintiff. Defendant

makes this Offer of Judgment for the purposes specified in Rule 68, SCRCP. This Offer

is not to be construed as either an admission that Defendant is liable in this action or

that Plaintiff has suffered any damage.

This Offer of Judgment shall be deemed withdrawn if Plaintiff does not file and

serve written notice of acceptance within twenty (20) days after the service of this Offer.

If deemed withdrawn, this Offer shall not be admissible as evidence at trial except in a

proceeding to determine costs.

TURNER PADGET ___________________________ Charles F. Moore P.O. Box 22129 Charleston, South Carolina 29413 Telephone: (803) 254-5555 Fax: (803) 577-5555 E-mail: cmoore@turnerpadget.com ATTORNEYS FOR DEFENDANT JOHN DOE

July 18, 2014

STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS ) COUNTY OF RICHLAND ) Civil Action No. 2014-CP-40-0123X JOHN DOE,

Plaintiff,

vs. MARY ROE,

Defendant.

))))))))))

CERTIFICATE OF SERVICE

I hereby certify that on this 18th day of July, 2014 a copy of the above and

foregoing Offer of Judgment has been mailed to all counsel of record, postage prepaid

and properly addressed as follows:

John F. McKenzie 1720 Main St. Columbia, SC 29201 Attorneys for Plaintiff

Denise Fenters Assistant to Charles F. Moore

Written Discovery

Dan Haltiwanger

Personal Injury Essentials

Friday, August 21, 2020

Written Discovery

3:12-cv-02370-JFA Date Filed 05/14/13 Entry Number 77 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

Keith Curtis and Tyneshia Brooks, individually and on behalf of all others similarly situated,

Plaintiffs,

vs.

Time Warner Entertainment- Advance/Newhouse Partnership,

Defendant.

C/A No. 3:12-cv-2370-JFA

ORDER ON MOTIONS TO COMPEL

This matter is before the court upon t wo motions to compel discovery1 filed by the

plaintiffs. See ECF Nos. 39, 60. The court heard argument on the first motion on April 15, 2013,

the same day the court heard argument from the parties on the plaintiffs’ motion for conditional

class certification. The second motion to compel was not fully briefed at the time of that hearing,

although full briefs have now been received by the court. The court has determined that oral

argument on the second motion will not aid in its decision process.

Before delving into the merits of the motions to compel, the court must address two

procedural issues. As to the first motion, defendant contends that the motion is defective

because plaintiffs have not complied with the requirements of Local Rule 7.02, D.S.C., which

requires a moving party to first confer with the opposing party about the subject of its motion

before filing the motion. The court has examined the affidavit and emails attached to the

plaintiffs’ reply memorandum and determines that the meet and confer requirements of Local

Rule 7.02 have been met. Although there was no “meet and confer” session denominated as

1 The first motion additionally seeks sanctions.

1

3:12-cv-02370-JFA Date Filed 05/14/13 Entry Number 77 Page 2 of 5

such, it is clear that the plaintiffs explored various options and alternatives prior to filing their

motion and complied with Local Rule 7.02 in this case.

Next, plaintiffs challenge the fact that the defendant has renumbered some of its

interrogatories so as to break out subparts and assign them separate numbers. Plaintiffs’ concern

in this regard is obviously occasioned by Rule 33, F ED. R. CIV. P., which limits a party’s

interrogatories to no more than twenty-five, unless the court excuses this limitation. This issue

may be easily resolved by the court’s announcing its intention to exercise its discretion under

Rule 33 to relax the limitation on the number of interrogatories a party may make. Because the

court has gained some familiarity with the complexity of this litigation at the hearing on the

motion for conditional class certification, the court hereby announces that each party will be

allowed to propound a total of 100 interrogatories, including all discrete subparts, to the other

side in this case. Neither party should attempt to circumvent the clear import of this rule by

including subparts to an interrogatory that should count as a numbered interrogatory.

Turning to the merits, in their first motion, plaintiffs point out that the defendant’s initial

and supplemental responses violate the Federal Rules of Civil Procedure because they raise

“generalized, boilerplate objections and fail to identify the information withheld pursuant to an

objection or claim of privilege.” ECF No. 40, at 4. Defendant then compounds the problem by

also providing plaintiffs with some response, thus leaving plaintiffs unable to determine what

information has been withheld and the specific justification for the withholding. In their second

motion, plaintiffs point out that the defendant has employed the same basic tactics in responding

to the discovery requests in subsequent interrogatories and requests for production.

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3:12-cv-02370-JFA Date Filed 05/14/13 Entry Number 77 Page 3 of 5

Rather than engage in a point-by-point discussion of each bit of information the plaintiffs

seek, the court wishes to memorialize, by way of this order, its general philosophy on discovery

responses and then provide the defendant an opportunity to submit new answers to all

outstanding discovery. The court hastens to add that, by disposing of the motion in this fashion,

the court is not at this time determining that the defendant has acted in bad faith or otherwise

acted improperly under the Federal Rules of Civil Procedure or the Local Rules of this District.

Rather, the defendant has responded to discovery requests in a fashion that is becoming all too

common in cases on this court’s docket, and the action taken on the present motions is consistent

with what this court has directed in other cases.

In order to efficiently resolve discovery disputes, the parties are hereby notified that the

following rules apply to discovery objections before this court:

1. Nonspecific, Boilerplate Objections

The parties shall not make nonspecific, boilerplate objections. Objections that state that

the discovery request is “vague, overly broad, or unduly burdensome” are, standing alone,

meaningless and will be found meritless by this court. A party objecting on these grounds must

explain the specific and particular way in which a given request is vague, overly broad, or unduly

burdensome. See Fed. R. Civ. P. 33(b)(4); Josephs v. Harris Corp., 677 F.2d 985, 992 ( 3d Cir.

1982) (“[T]he mere statement by a party that the interrogatory was ‘overly broad, burdensome,

oppressive and irrelevant’ is not adequate to voice a successful objection to an interrogatory. On

the contrary, the party resisting discovery ‘must show specifically how . . . each interrogatory is

not relevant or how each question is overly broad, burdensome or oppressive.’” (citation

omitted)). If a party believes that the request is vague, that party shall attempt to obtain

clarification prior to objecting on this ground.

2. Objections Based Upon Scope

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3:12-cv-02370-JFA Date Filed 05/14/13 Entry Number 77 Page 4 of 5

If there is an objection based upon a n unduly broad scope, such as time frame or

geographic location, discovery should be provided as to those matters within the scope which are

not disputed. For example, if discovery is sought nationwide for a ten-year period, and the

responding party objects on the ground that only a five-year period limited to activities in the

State of South Carolina is appropriate, the responding party shall provide responsive discovery

falling with the five-year period as to the State of South Carolina and then object to the overage.

3. Irrelevant and Not Reasonably Calculated to Lead to Admissible Evidence

An objection that a discovery request is irrelevant and not reasonably calculated to lead to

admissible evidence must include a s pecific explanation describing why the request lacks

relevance and why the information sought will not reasonably lead to admissible evidence.

Parties are reminded that the federal rules allow for broad discovery that does not necessarily

need to be admissible at trial. See Fed. R. Civ. P. 26(b)(1); Oppenheimer Fund, Inc. v. Sanders,

437 U.S. 340, 351–52 (1978).

4. Formulaic Objections Followed by an Answer

The parties shall not recite a formulaic objection followed by an answer to the request. It

has become common practice for a party to object on the basis of any of the above reasons and

then state that, “notwithstanding the above,” the party will respond to the discovery request,

subject to or without waiving such objection. Such an objection and answer preserves nothing

and serves only to waste the time and resources of both the parties and the court. Further, such

practice leaves the requesting party uncertain as to whether the question has actually been fully

answered or whether only a portion of the question has been answered. See Civil Discovery

Standards, 2004 A.B.A. SEC. LIT. 18.

5. Objections Based upon Privilege

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3:12-cv-02370-JFA Date Filed 05/14/13 Entry Number 77 Page 5 of 5

Generalized objections asserting the protection of the attorney-client privilege or the

work product doctrine also do not comply with the Federal Rules of Civil Procedure. A party

objecting on t he grounds of privilege must state the specific nature of the privilege being

asserted, as well as, inter alia, the nature and subject matter of the communication at issue and

the sender and receiver of the communication and their relationship to each other. If a general

objection of privilege is made without attaching a proper privilege log, the objection of privilege

may be deemed waived.

With the foregoing principles in mind, the defendant is directed to submit new responses

to outstanding discovery requests. If any disputes arise to the new responses, the parties must

comply with the meet and confer requirements of Local Rule 7.02 prior to filing any such motion,

and they should earnestly attempt to resolve discovery disputes prior to court involvement if at all

possible.

IT IS SO ORDERED.

May 13, 2013 Joseph F. Anderson, Jr. Columbia, South Carolina United States District Judge

5 STATE OF SOUTH CAROLINA COUNTY OF BARNWELL Kayla S. Platts, Plaintiff, v. Jersey Shore Auto Transport, Inc.; & Robert Mark Cavetti, Defendants.

IN THE COURT OF COMMON PLEAS SECOND JUDICIAL CIRCUIT

C/A No. 2013-CP-06-411

P L A I N T I F F ’ S F I R S T R E Q U E S T S

F O R D I S C O V E R Y T O D E F E N D A N T S J E R S E Y S H O R E A U T O T R A N S P O R T , I N C . A N D

R O B E R T M A R K C A V E T T I

TO: Jack Riordan, Esquire, counsel for Defendants

Pursuant to the South Carolina Rules of Civil Procedure, you are hereby required to

answer under oath and in writing the following discovery requests within thirty (30) days of

service:

D E F I N I T I O N S

1) The terms "document" or "documents" shall include:

a) "Writings" and "Recordings" consist of letters, words, numbers, or their

equivalent, set down in any form or recorded in any manner, including

electronically stored information. See SCRE 1001.

b) "Photographs" include photographic images or their equivalent. See SCRE

1001.

c) Where these interrogatories relate to the existence of documents, Plaintiff

refers both to the original document or duplicate document if no original exists.

"Original" and "duplicate" are to be given the same definition herein as given

them by SCRE 1001.

2) The terms "you" or "party" and any synonym thereof, whether singular or plural,

includes all agents of the party including counsel, servants, employees representatives,

and shall include all agents of any present and former subsidiaries, divisions,

including any affiliates, and/or predecessor entities of the party.

3) The term "subject crash" specifically refers to the motor vehicle crash occurring

on or around June 6, 2 011 in which Ms. Platts was injured after being struck from

behind by Defendant Cavetti, driver for Defendant Jersey Shore Auto Transport.

I N T E R R O G A T O R I E S

1. For each person known to you or your counsel to be a witness concerning the facts of

the case, set forth either a summary sufficient to inform the parties of the important facts

known to or observed by such witness, and provide a copy of any written or recorded

statements taken from such witnesses and indicate who has possession of such statements.

2. Set forth a list of photographs, plats, sketches, videos, audio records, written documents,

and other prepared documents in possession of you or your counsel that relate to any defense or

claim in this case.

3. Set forth the names and addresses of all insurance companies which have liability

coverage relating to these claims and set forth the number or numbers of the policies involved

and the amount or amounts of liability coverage provided.

4. List the names and addresses of any and all expert witnesses whom you propose to use

as a witness at the trial of this case, set forth the substance of their expert opinions, and set forth

the facts and bases upon which they relied to formulate those opinions.

5. Please state the amount(s) you have paid any expert listed in response to Plaintiff's

interrogatory number 4 for any and all lawsuits against your company in which that person has

testified (in either deposition or trial) or has been retained by you to testify as an expert witness.

6. Do you believe or have information tending to show that the plaintiff’s injuries

were contributed to or caused by any negligent act or omission on the part of any person not

named as a defendant in this action? If so, state:

(a) the name and address of each person;

(b) the nature of each negligent act or omission and the manner in which it was

allegedly committed or omitted;

(c) the name and address of each person who has personal knowledge of any

information concerning each negligent act or omission on the part of such

person.

7. Have there been any incidents, other than the one alleged in the plaintiff’s

complaint, in which individuals have made allegations that your negligence caused them injury?

If so, state:

(a) the date of such incidents;

(b) the nature of any and all injuries sustained by any and all persons involved in

such incidents;

(c) the alleged cause of each and any incident;

(d) the name, address, and telephone number of any person having personal

knowledge of such incidents;

(e) identify all documents concerning every such incident, including but not

limited to, any and all accident reports concerning every such incident.

8. Please state whether you have ever been cited for failure to comply with the Federal

Motor Carrier Safety Administration regulations, including Safety Regulations. If so, please

state the following:

a. the date of such citation(s) / incident(s) / disciplinary action(s) / out of

service violation(s);

b. the outcome (including but not limited to any penalties issued or

inspections which resulted in out of serve violations or changes in your

Carrier Safety Rating) of such citation(s) / incident(s) / disciplinary

action(s) / out of service violation(s);

c. the name, address, and telephone number of the person most

knowledgeable about such citation(s) / incident(s) / disciplinary

action(s) / out of service violation(s). This specifically includes the name,

address, and telephone number of any of your drivers that were cited for

out of service violations; and

d. identify all documents concerning every such citation(s) / incident(s) /

disciplinary action(s) / out of service violation(s).

9. Please state whether Defendant Robert Mark Cavetti is currently your employee. If

Defendant Robert Mark Cavetti is not your employee, please state the nature of your business

relationship with Defendant Robert Mark Cavetti at the time of the subject crash.

10. Please state whether Jersey Shore Auto Transport, Inc. operated under another name

prior to June 6, 2011.

11. Please state whether, at the time of the subject crash, the subject tractor-trailer Defendant

Robert Mark Cavetti was operating during the collision was equipped with any event data

recorder, "black box", engine control module, Haldex Trailer Roll Stability system, Caterpillar

Electronic Technician system and/or any other device that records data about the operation of

the vehicle immediately before, during, or after the crash.

12. If the answer to interrogatory no. 11 is yes, please identify the specific locations of such

data recording systems, as well as whether any data has been downloaded by you or your agent

from the event data recorder, "black box," engine control module, Haldex Trailer Roll Stability

system, Caterpillar Electronic Technician system and/or other data recording system referenced

in your response to interrogatory no. 11.

13. Please identify the name, current address, and employer of any and all persons who have

downloaded, retrieved, interpreted, or analyzed data from any type of event data recorder

"black box," engine control module, Haldex Trailer Roll Stability system, Caterpillar Electronic

Technician system and/or comparable device from your tractor-trailer that was involved in the

subject crash.

14. Please set forth any modifications, repairs, or changes to the tractor-trailer involved in

the subject crash that either you have made, or that are known to you, that were made after

the subject crash.

15. Please state whether a post-accident drug and alcohol test was performed on Defendant

Robert Mark Cavetti as a result of the subject crash and, if so, the person at Jersey Shore Auto

Transport with the most knowledge about the results of that test.

16. Please state whether you have a d river's qualification file for Defendant Robert Mark

Cavetti.

17. Please state whether, prior to hiring, employing, or contracting with Defendant Robert

Mark Cavetti, you contacted his previous employer(s) and, if so, provide the names and

telephone numbers of all previous employers contacted.

18. Please state whether Jersey Shore Auto Transport, Inc. has a safety director or safety

compliance director or an equivalent employee or executive and give the name of such

person within the company.

19. Please state whether on June 6, 2011 you had any rules, regulations, policies, etc.

regarding the use of cellular telephones by drivers while driving your vehicle or driving for

you? If so, please describe the company rule, regulation or policy.

20. If the answer to interrogatory number 19 is no or none, please state whether you currently

have a rule, regulation, or policy regarding the use of cellular telephones by drivers while

driving your vehicle or driving for you? If so, please describe the company rule, regulation or

policy.

21. Please set forth the name, address, job title, and telephone number of any person who

participated in the periodic evaluation of Defendant Robert Mark Cavetti’s job performance

or his driving ability during the time he drove for you.

23. Please set forth the manner in which you compensate your drivers and explain any

deviation in pay from the normal basis, if any, for Defendant Robert Mark Cavetti or for the

load that was involved in the subject crash.

24. Please set forth the name(s) of any and all persons who are not your attorney(s) that

participated in answering, or provided information to you for the purpose of answering, these

interrogatories.

25. Please state where the tractor-trailer is currently located and whether it is available for

inspection.

26. Please state whether there were any other persons in your tractor-trailer at the time of the

subject crash and, if so, please set forth their name, address, telephone number, and state why

they were in the vehicle at the time of the subject crash.

These Interrogatories shall be deemed continuing so as to require supplemental answers

if you or your attorneys obtain further information between the time answers are served and the

time of trial.

A D D I T I O N A L D E F I N I T I O N S

1) A document that "relates to" or "concerns" any given subject means any document that in whole or in part constitutes, contains, embodies, reflects, identifies, states, refers to, deals with, or is in any way pertinent to that subject, including without limitation, documents concerning the preparation of other documents. "Document" specifically includes emails and electronically stored information.

2) When used in these requests, the "Defendant" or "you" or "your" or any synonym thereof, whether singular or plural, is intended to and shall embrace and include counsel for Defendant, all agents, servants, employees, representatives and others who are in possession of or may have obtained information for or on be half of Defendant, and shall include all present and former subsidiaries, division, affiliates, and predecessor entities.

I N S T R U C T I O N S

1. For each document responsive to this Request that is withheld under a claim of privilege or work-product immunity, in order for Plaintiff to assess such claims please provide pursuant to Rule 26(b)(5)(A), SCRCP, a statement under oath by a person having knowledge setting forth as to each document:

a. the name and title of the author; b. the name and title of each person to whom the document was addressed;

c. the name and title or each person to whom a copy of the document was sent;

d. the date of the document; e. the number of pages in the document; f. a brief description of the nature and subject matter of the document; g. the nature of the claimed privilege of immunity;

h. the category or categories of this request to which the document is responsive; and i. the exact location of the original and each copy as of the date of receipt of this request, along with the name and address of the custodian of said originals and copies.

2. If you are aware of any document otherwise responsive to this Request, which document is no l onger in your custody or control, identify the name and title of the author, the name and title of the addressee, the date of the document, the subject matter of the document or documents, the last date on which the document was in your control, the person or entity, if any, now in control of the document, the reason for your disposition or release of the document, all persons who have knowledge of the circumstances surrounding its disposition, and state what knowledge each person has.

3. This production request shall be deemed to be continuing under the provisions of the South Carolina Rules of Civil Procedure.

R E Q U E S T S F O R P R O D U C T I O N

1. Produce a copy of any and all written or recorded statements referenced in response to

Plaintiff's interrogatory number 1.

2. Produce a copy of any and all photographs, videos, and/or diagrams of the scene of the

subject crash or of the vehicles involved in the subject crash.

3. Produce a copy of any data and any information electronically stored in the event data

recorder, "black box", engine control module, Haldex Trailer Roll Stability system, Caterpillar

Electronic Technician system and/or any other device that records data about the operation of

the vehicle immediately before, during, and/or after the crash, that were in the tractor-trailer

involved in the subject crash. If that data has not been downloaded, please make it available for

Plaintiff to download at a mutually agreeable time and place.

4. Produce a copy of any and all documents referencing any modifications, repairs, or

changes to the tractor or trailer involved in the subject crash that you listed in response to

Plaintiffs interrogatory number 14.

5. Produce originals or certified copies of the front and back of the daily logs for Defendant

Robert Mark Cavetti for the following time periods: June 6, 2011, t he three month period

immediately preceding the subject crash, and the 30 da y period immediately following the

subject crash.

6. Produce originals or certified copies of all bills of lading for any shipments transported

by Defendant Robert Mark Cavetti for the following time periods: June 6, 2011, for the 30 day

period immediately preceding the subject crash, and the 5 da y period immediately following

the subject crash.

7. Produce Defendant Robert Mark Cavetti’s complete driver qualification file that is or was

maintained by you both now and at the time of the subject crash.

8. Produce any and all drug and alcohol testing records for Defendant Robert Mark Cavetti

for the time period that he has been or was in your employ.

9. Produce all documents, photographs, exhibits or information you have to support your

answer to Plaintiffs interrogatory number 6.

10. Produce any oversize permits or other permits, licenses covering the vehicle or the load

that was being transported on June 6, 2011 at the time of the subject crash.

12. Produce Defendant Robert Mark Cavetti’s cellular phone records for the dates of June 5,

2011 through June 7, 2011.

13. Produce all OmniTRAC, QUALCOMM or other similar tracking system data for

Defendant Robert Mark Cavetti’s tractor-trailer for the following time periods: June 6, 2011

and the 30 day period immediately preceding the subject crash.

14. Produce Defendant Robert Mark Cavetti’s pickup and delivery orders regarding the cargo

transported by him on J une 6, 2011 a nd for the 30 da ys immediately preceding the subject

crash and for the 5 day period immediately following the subject crash.

15. Produce the entire personnel, discipline, and training file for Defendant Robert Mark

Cavetti.

16. Produce any and all documents related to Defendant Robert Mark Cavetti that you

received from his previous employers listed in response to Plaintiffs interrogatory 17

including, but not limited to, Mr. Cavetti’s moving violations report from any state issuing a

commercial driver's license to him, prior accidents, and any verification of his physical

qualifications.

17. Produce records and results of any log audits regarding Defendant Robert Mark Cavetti’s

logs from June 2011 to present.

18. Produce all driver vehicle inspection records and reports for the 1997 tractor involved in

the subject crash and for the trailer/tanker involved in the subject crash for June 6, 2011 and the

6 month period immediately preceding the subject crash and the 30 da y period immediately

following the subject crash.

19. Produce all maintenance, inspection, and repair records or work orders for the 1997

Freightliner tractor involved in the subject crash for the past five years.

20. Produce the annual inspection reports for the 1997 tractor involved in the subject crash

for the years 2009, 2010, and 2011.

21. Produce any lease contract or other contract or agreement between you and Defendant

Robert Mark Cavetti in place at the time of the subject crash.

22. Produce any weight tickets, fuel receipts, hotel bills, tolls, Comchek and/or Comdata

records and other records of expenses including expense sheets and settlement sheets pertaining

to the trip on June 6, 2011 and for the 30 days immediately preceding the subject crash and for

the 5 days immediately following the subject crash.

23. Produce all trip reports, dispatch records, trip envelopes regarding the trip on J une 6,

2011 and for the 30 day period immediately preceding the subject crash and the 5 day period

immediately following the subject crash.

24. Produce all driver's manuals, guidelines, rules and regulations, safety messages, safety

and training materials that you provided Defendant Robert Mark Cavetti prior to June 6,

2011.

25. Produce all documents, course books, manuals, training videos, and records reflecting the

taking or completion of any safety or driver's training course by Defendant Robert Mark

Cavetti.

26. Produce all emails, electronic messages, letters, or memos or other documents regarding

the subject crash. This includes a complete accident and/or incident file that you may maintain.

27. Produce all paper documents and electronically stored information of any type regarding

company safety, safety policies, the subject crash, the 1997 tractor and the trailer involved in

the subject crash, witnesses to the subject crash, the load, the facts of the subject crash,

preventability determinations, GPS data or dispatcher data for Defendant Robert Mark

Cavetti’s June 6, 2011 trip.

28. Produce all paper documents and electronically stored information of any type containing

information regarding any trips made by Defendant Robert Mark Cavetti on June 6, 2011, t he

30 day period immediately preceding the subject crash, and the 5 day period following the

subject crash.

29. Produce any and all documents and electronically stored information, photographs,

videos, data, or information of any kind that you provided any expert witnesses retained to

testify on your behalf in this matter.

30. Produce any and all documents and electronically stored information, photographs,

videos, data, exhibits, notes, or other information that any expert witness retained to testify

on your behalf in this matter has generated as a result of his or her work in this matter.

31. Produce a copy of any documents listed in response to interrogatories 7(e) or 8(d) above.

32. Produce a copy of all insurance policies listed in response to Plaintiff's interrogatory

no. 3 including those with MCS-90 endorsements or equivalent endorsements required

under Florida or South Carolina law.

33. Produce a copy of your safety policy manual.

34. Produce a copy of your safety training manual including training aids such as

videos, handouts, etc.

35. Produce a copy of the most recent MCS-150 form that you submitted to the Department

of Transportation prior to June 6, 2011.

36. Produce a copy of the fuel tax file for Robert Mark Cavetti’s trips for the quarter that

includes June 6, 2011.

37. Produce a copy of all hours of service violations by you or any of your drivers since

2011, including Robert Mark Cavetti.

38. Produce a copy of your policies and procedures governing your drivers' responsibility

to report wrecks, helping persons injured in wrecks, protecting equipment, giving witness

statements and all other actions either required or prohibited in a wreck situation.

39. Produce a copy of your policies and procedures governing how you make preventability

determinations (and/or chargeability determinations) after one of your drivers or trucks is in a

wreck.

40. Produce a copy of any documentation of your preventability and/or chargeability

analysis and/or determination for the subject crash including any notes, meeting minutes,

reports, and findings.

41. Produce a copy of your policies and procedures, in place at the time of the subject crash,

that govern your drivers' compliance with the Federal Motor Carrier Safety regulations and

hours of service regulations.

42. Produce a copy of all out of service records for the subject tractor and trailer from June

6, 2011 to present.

43. Produce any and all documents not previously produced in response to the foregoing

requests that you intend to either use as exhibits at trial or that were used in answering

Plaintiff's interrogatories.

[signature page below]

Respectfully, RICHARDSON, PATRICK, WESTBROOK & BRICKMAN, LLC

BY: ______________________________

Terry E. Richardson, Jr. Chris Moore (SCB: 77934)

1730 Jackson Street Post Office Box 1638 Barnwell, South Carolina 29812 T: 803.541.7850 F: 803.541.9625

Charles J. Bridgmon (SCB: 70286) BRAY & LONG, PLLC 2820 Selwyn Avenue, Suite 400

Dated: _____________ Charlotte, North Carolina 28209

CERTIFICATE OF SERVICE

This is to certify that I have this 6th day of May 2014 served a copy of Plaintiff's first discovery

requests to Defendants by addressing and mailing them via U.S. mail to: Jack Riordan, Esq. Smith Moore Leatherwood, LLP Suite 1100 2 West Washington Street Greenville, South Carolina 29601

RICHARDSON, PATRICK, WESTBROOK & BRICKMAN, LLC

BY: ______________________________

Terry E. Richardson, Jr. Chris Moore (SCB: 77934) 1730 Jackson Street Post Office Box 1638 Barnwell, South Carolina 29812 T: 803.541.7850 F: 803.541.9625

Charles J. Bridgmon (SCB: 70286) BRAY & LONG, PLLC 2820 Selwyn Avenue, Suite 400

Dated: _____________ Charlotte, North Carolina 28209

STATE OF SOUTH CAROLINA COUNTY OF SUMTER Sharon Holland, as personal representative of the Estate of Patricia R. Gass; & Leon Gass, Plaintiff, v. Keith Logan d/b/a Myson’s Tire Sales #2; & Cooper Tire & Rubber Company, Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

COURT OF COMMON PLEAS THIRD JUDICIAL CIRCUIT

C/A No. 2013-CP-48-695

PLAINTIFFS’ ANSWERS TO DEFENDANT COOPER TIRE’S SECOND

REQUESTS FOR ADMISSION

A N S W E R S 1. Admit that after the accident made the subject of this lawsuit, Leon Gass purchased or

someone purchased on Leon Gass’ behalf, what he or she believed to be new Mastercraft tires.

ANSWER: Admitted. 2. Admit that after the filing of above referenced lawsuit, Leon Gass purchased or someone

purchased on Leon Gass’ behalf, what he or she believed to be new Mastercraft tires.

ANSWER: Denied as written. U pon information, Mr. Gass or someone on his behalf purchased what he or she believed to be new Mastercraft tires on April 26, 2013. T his action was initiated against Myson’s Tire Sales on April 22, 2013. The complaint was amended to add Cooper Tire & Rubber Company on July 17, 2013. 3. Admit that the Mastercraft tires referenced in Requests No. 1 and 2 were purchased from

Myson’s Tire Sales.

ANSWER: Admitted.

[signature page below]

Respectfully, RICHARDSON, PATRICK, WESTBROOK

& BRICKMAN, LLC BY: ____________________________________ Chris Moore (SCB 77934) Brady R. Thomas

Terry E. Richardson, Jr. 1730 Jackson Street Barnwell, South Carolina 29812 T: 803.541.7850 F: 803.541.9625 E. Latony Dessausure, Esq. DESSAUSURE LAW FIRM 1928 Barnwell Street Columbia, South Carolina 29201 Dated:___________________ ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE

This is to certify that I have this day served a copy of Plaintiffs’ responses to Defendant

Cooper’s requests for admission by addressing the same to:

John T. Lay, Esquire Gallivan, White & Boyd. P.A. Post Office Box 7368 Columbia, South Carolina 29202 Alex Purvis, Esquire Whitt Steineker, Esquire Bradley Arant Boult Cummings, LLP One Jackson Place 188 E. Capitol Street Suite 400 Jackson, Mississippi 39201 ATTORNEYS FOR DEFENDANT COOPER TIRE & RUBBER COMPANY

Clarke W. DuBose, Esquire Haynsworth Sinkler Boyd, P.A. Post Office Box 11889 Columbia, South Carolina 29211-1889 ATTORNEY FOR DEFENDANT KEITH LOGAN D/B/A MYSON’S TIRE SALES

and depositing the same in the U.S. Mail with sufficient postage to assure delivery.

Respectfully submitted, RICHARDSON, PATRICK, WESTBROOK

& BRICKMAN, LLC BY: ______________________________ Terry E. Richardson, Jr.

Chris Moore (SCB 77934) Brady R. Thomas

1730 Jackson Street Barnwell, South Carolina 29812 T: 803.541.7850 F: 803.541.9625 E. Latony Dessausure, Esq. DESSASURE LAW FIRM 1928 Barnwell Street Columbia, South Carolina 29201 Dated:___________________ ATTORNEYS FOR PLAINTIFFS

Legal and Trust Accounting Rules

Personal Injury Essentials

Friday, September 21 , 2012 Friday, August 21, 2020

Trust Accounting 101: How to Avoid Overdrafts, Fraud & Misappropriation Barbara M. Seymour

Clawson & Staubes, LLC Preservation of the safety and integrity of client funds and other property must be a priority for lawyers. Even those who are not adept at accounting and delegate responsibility for financial recordkeeping to others must study the rules that govern trust account management. The financial recordkeeping rules are not designed to make a lawyer’s life more difficult, but rather to protect the lawyer from costly mistakes. The Supreme Court of South Carolina explains that the recordkeeping rule in RPC “protects lawyers who obey the rule because they always have detailed records to show how client funds and the funds of others were maintained and distributed.” In the Matter of Jordan, 421 S.C. 594, 809 S.E.2d 409 (2017)The Court went on to point out, however, that a lack of compliance would not shield a lawyer from discipline by stating that the “recordkeeping provision also prevents lawyers who disobey the rule from claiming they made a simple mistake.” A thorough understanding of, and strict compliance with, RPC Rule 1.15 and Rule 417 can help ensure that client funds are kept safe from errors and misappropriation. FIVE BASIC PRINCIPLES:

- Read the Rules - Account for Every Penny - It's Not Your Money - Put $ In Before You Take $ Out - Trust No One

READ THE RULES: There are two rules that set out the requirements regarding how that money is to be maintained, accounted for, and distributed. The first is Rule 1.15 of the Rules of Professional Conduct (RPC), Rule 407, SCACR. This safekeeping of property rule has six basic requirements for receipt and maintenance of client funds:

• Client funds must be kept separate from your own funds • Client funds must be maintained in the state where your office is located, unless

the client consents to other arrangements • Client funds must be specifically identified and safeguarded • Complete records regarding the funds must be created and preserved for six

years • You must promptly notify the client or third party of the receipt of the funds and

promptly deliver the funds to the client or a third party with a legitimate interest in the funds

• You must promptly and fully account for all funds received and disbursed The second set of requirements for handling client funds is found in Rule 417, SCACR. Rule 417 contains a list of financial records that you are required to maintain regarding your law practice. It also sets forth limitations on the use of trust accounts and procedures for monthly reconciliation. A violation of Rule 417 subjects a lawyer to disciplinary action.

The Court has held that when there is clear and convincing evidence of trust account violations or other inadequate recordkeeping, the lawyer must produce records sufficiently detailed to overcome that evidence. In other words, a lack of adequate records creates a presumption of trust account mismanagement. You and all staff members handling funds or preparing financial records should be well versed in the requirements of Rule 417, SCACR. If you have not met with your accountant or bookkeeper to review and explain the requirements of Rule 417, you should do so immediately to confirm that you are in compliance. BAR RESOURCES: Legal Ethics & Practice Program Trust Account School SC Bar CLE Division (800) 768-7787 https://www.scbar.org/shop-cle/#/tab/live-courses-tab/ Courtney Troutman, PMAP -Practice Management Advice -Software Recommendations -Lending Library -Form Documents Nichole Davis, Risk Management -Risk Management & Ethics Advice -Ethics Advisory Opinions SC Trust Account Manual: https://www.scbar.org/lawyers/managing-your-law-practice/your-career-changes/starting-practice/trust-accounting-more/ ACCOUNT FOR EVERY PENNY

- Rules Require: - Accurate Records - Monthly Reconciliation - Overdraft/NSF Notification

RED FLAGS

- Checks written out of sequence - Unexplained debits or credits to the account by electronic funds transfers - NSF/overdraft charges or chargebacks - Unexpected bank charges

REVIEW REPORTS EVERY MONTH

- Multiple Ledger (Trial) Balance Report - Account Reconciliation Report - Outstanding Check Report - Outstanding Deposit Report - Voided Check Report - Errata Sheet

RED FLAGS - Deposits not reflected on bank statement or not credited within one business day - Checks written on the trust account that have not cleared the bank within a month - Deposit or check amount that differs from books - Unexplained debits or credits by EFT - NSF or overdraft charges or deposit chargebacks - Unexpected bank charges not covered by funds maintained in the account for that

purpose MANDATORY OVERDRAFT NOTIFICATION Rule 1.15(h), RPC, contains a mandatory overdraft or insufficient funds reporting requirement. Under this provision, you are required to file written instructions with your bank directing that it report to the Commission on Lawyer Conduct when any instrument drawn on your trust account is presented for payment against insufficient funds or when the trust account is overdrawn. There is no particular form required. If your banker does not have a prepared form for your use, a simple letter including the language from Rule 1.15(h), RPC, will suffice. It is important that you keep a copy of your bank directive with your financial records as evidence of your compliance with this provision of the rule. If your bank refuses to accept the directive or fails to comply with it, you have to find another bank. IT’S NOT YOUR MONEY

- Don’t commingle it - Don’t borrow against it - Don’t borrow it - Don’t loan it to anyone - Don’t use it for your own benefit

PUT $$$ IN BEFORE YOU TAKE $$$ OUT You must deposit funds before disbursing them. Delivering checks to payees prior to deposit of funds received for that purpose is a violation of Rule 1.15(f)(1), RPC. For example, funds received in connection with a real estate closing or personal injury settlement must be physically deposited with your bank before you can hand out checks to the client or other payees. A significant number of trust account overdrafts reported to the Commission on Lawyer Conduct result from intentional violations of this rule.

In addition to the requirement that you deposit funds prior to disbursement, Rule 1.15, RPC, requires that you wait until funds are actually collected by your bank before issuing checks in most circumstances. RPC does provide a 'good funds' exception that allows you to disburse some items upon deposit without waiting for actual collection. The 'good funds' rule allows a lawyer to treat certain negotiable instruments as cash that can be disbursed after deposit, but before actual collection by the bank. Ordinarily you may not disburse funds from your trust account unless the funds are actually collected funds, meaning the check has cleared and your account has been credited for the deposit. However, subsection (f)(2) permits you to treat cash, verified and documented electronic fund transfers, or other deposits treated by the depository

bank as equivalent to cash as collected funds. Certain negotiable instruments, once deposited, can be disbursed without verification that the accounted has been credited. Those instruments include properly endorsed government checks, certified checks, cashier's checks, insurance company checks (not exceeding $50,000.00). The good funds provision also includes “any other instrument payable at or through a bank, if the amount of such instrument does not exceed $5,000.00 and the lawyer has reasonable and prudent belief that the deposit of the instrument will be collected promptly.”

If it turns out that the funds are not collected, the lawyer is required to deposit replacement funds in the account as soon as practical, but no later than five business days after notice that the funds have not been collected. A failure to collect even good funds will result in an investigation if the bank pays the trust checks on insufficient funds. MISAPPROPRIATION RED FLAGS:

- Possessiveness, secretiveness, defensiveness - Frequent trips to the bank - Vendors or third parties not timely paid - Past due monthly bills - Unusual urgency about resolving a case - Lifestyle beyond means - Depression or alcohol or drug abuse

RECOMMENDED PRACTICES:

- Written policies - Criminal and credit background checks - Staff training - No disbursements until deposit clears - Two sets of eyes on all transactions - Annual review by outside accountant - Familiarity with common schemes & frauds - Personal relationship with bank representative - Regular schedule for withdrawing earned fees - Open bank statements immediately - Only attorneys sign checks - No signature stamps/electronic signature - Recognizable signature - Apply trust accounting policies to operating account

Recommended Trust Account Checklist

Written policies for handling funds and recordkeeping Staff training on handling funds and recordkeeping Personal meeting with bank officer regarding attorney’s obligations, including

overdraft reporting requirement Written directive on file with bank to report to CLC all NSF checks & overdrafts Written fee agreements or retention letters in all cases Include scope of representation, fee calculation & explanation of costs Monthly reconciliation of all law office accounts Notification to attorney of uncleared checks & check/deposit errors Annual review for unclaimed funds; report to State Treasurer by Nov. 1 Annual review by outside accounting professional All receipts from or on behalf of clients deposited into trust account All firm funds withdrawn from trust account when earned Checks, check writing software, accounting software, online bank access are secured Maintain accounting journal for each account Check stubs/check register with date, payee, amount, & case ID Client identification on memo line of all checks Adopt uniform coding for Memo/Description fields All receipts deposited intact Note client identification on all deposit slips and deposit receipts No signature stamps/electronic signatures/squiggles Only attorneys sign checks No cash disbursements, checks payable to cash, or counter withdrawals Electronic transfers only when absolutely necessary & maintain good records Receipts given to clients & duplicates retained Copies of front & back of all checks received No disbursements until deposit clears Two sets of eyes on all transactions Maintain copies of all financial records indefinitely:

Account journals Client trust account ledgers Copies of deposit slips Original deposit receipts Check duplicates - front & back Images of canceled checks/substitute checks Records of wires & electronic transfers Disbursement statements (settlement ledgers, HUDs, etc.) Retainer and compensation agreements or letters regarding fees Billing statements Invoices from vendors Accountings to third parties (including courts) Bank statements for all accounts Reconciliation reports for all accounts Memos regarding bank errors, math errors, account correction, voids, etc. ALL LEGIBLE, ACCESSIBLE, AND PRINTABLE

Digital copies + at least one back up

Depositions

Dan Haltiwanger

Personal Injury Essentials

Friday, August 21, 2020

Deposition Practice in a Personal Injury Case

How to Use a Deposition in Trial Depositions can be used two ways in trial. First, a deposition can be used instead of

calling the witness who was deposed live at trial. Second, testifying witnesses can be cross-examined and impeached with prior deposition testimony. 1. Depositions as Testimony Not every deposition can be used at trial in lieu of live testimony. The rules of hearsay would normally prevent using a deposition at trial. However, there are exceptions found in Rule 32(a)(3):

a. The witness is dead; b. The witness is at a greater distance than 100 miles from the place of trial; c. The witness cannot attend due to illness, infirmity, or imprisonment; d. The witness could not be subpoenaed; e. Interests of justice warrant use.

Be sure to subpoena all witnesses even if you know they cannot make it or have promised you they will be there (BECAUSE THEY WON’T!!) Also, you must give the other party at least one day’s notice of what depositions you plan to use. The other side has the opportunity to cross designate other portions of the testimony. When publishing a deposition, you can either read the questions and answers yourself or have an assistant play the role of witness from the box. 2. Impeachment by Deposition For non-party witnesses, you can only use as impeachment to show inconsistent testimony with the deposition. Therefore, a foundation needs to be created before the deposition can be used. As an example, the main witness to your client’s car wreck testified at the deposition that the light was red. At trial, on the stand she now testifies that the light was green. You must lay the foundation for the prior inconsistent statement (i.e. have her admit that she made the prior statement) and then you can have the witness read the deposition. Attorney: “Mrs. Johnson, you just testified that the light was green when the defendant

entered the intersection and struck my client, is that what you testified to?” Witness: “Correct.” Attorney: “Do you recall when we first met? When we were at the office of Mr. Smith’s

attorney on February 21st of this year and we took your deposition?” Witness: “Yes.” Attorney: “Isn’t it true that in that deposition you testified that the light was red when the

defendant entered the intersection?” NOTE: If the witness admits that she testified that the light was red, you are done, she has been

impeached and you cannot use the deposition any further. If she denies that she testified the light was red, you can continue:

First, hand the unopened, sealed deposition to the judge so that they can open it or inspect it to make sure it is authentic.

Second, if the judge has not already explained to the jury what a deposition is, now would be a good time to ask that the judge do so.

Third, give the deposition to the witness. Attorney: “Mrs. Johnson, can you turn to page 12 and look for line 4? Let me know when

you have found it.” Witness: “OK”

Attorney: “I am going to read the question starting at page 12, line 4 and please follow along. I asked you ‘What color was the light when the defendant’s car entered the intersection and struck my client?’ and you answered ‘The light was red.’ Isn’t that what you testified to under oath back in February?”

Witness Depo Outline

1. Introduce self/case, a few deposition ground rules,

a. verbal for court reporter

2. Under oath today, do you understand that?

3. If at any time you don’t understand any question, word, I use, will you let me

know, otherwise I am going to assume you understood?

4. If at any time during this deposition you realize that an answer you gave earlier

is not correct or is incomplete, will you let me know and we can go back and

address it, okay?

5. Your attorney may raise some objections to my questions during the

deposition, however, unless he directs you not to answer a question, our rules

require you answer the question the best you can, do you understand that?

a. Along with that, if you need me to clarify a question, do not hesitate to

ask me to and I will rephrase the question the best I can or explain it,

okay?

6. Have you ever given testimony in a deposition before?

a. Describe/Details

b. Attorneys/where/what about?

7. What is your full name?

8. Current Mailing Address

9. Education, where did you grow up and go to school?

a. Certifications or licenses

b. Any post high school degrees

10. Member union or any professional organization

a. When join?

b. Positions held?

11. Employment background

a. Starting with the end of school, give me a job history leading up to

working for GP

b. Job history at GP

i. Ever suspended or fired/Disciplined

c. Training

i. All schools by GP

d. Testing by GP

i. Ever fail?

12. For someone who does not know, tell us what GP Allendale is in the business

of doing?

13. Describe: daily job duties

a. Fit in with company overall hierarchy

i. Whose your boss, their boss, etc.

14. Were here because on April 13, 2011, Kenneth Drew Dalton was killed in a fire

at the Georgia Pacific Plant in Allendale County, South Carolina. Do you

remember that fire?

15. Were you at the plant the day of his death?

16. When would you have gotten to work that day?

17. What time of day do you remember the accident happening?

18. What did you do between the time you arrived at work and the fire?

a. Details.

19. Prior to the fire, did you have any interactions with IMI or Mr. Dalton?

a. Describe.

20. Would you have had any role in preparing the permits associated with the work

IMI was doing that day?

21. Would you have had any interaction at all with the IMI employees?

22. Explain the permitting process used at GP at the time of this accident?

a. Any subsequent changes?

23. How was the permitting procedure explained to independent contractors?

24. Would all welding work need permits?

25. Besides welding, what type of work would need a permit?

a. How does a worker know if a permit is necessary or not?

b. How would an independent contractor know if a permit was required

26. How did you come to learn about the fire?

27. Take me through the rest of the day.

28. After the explosion, did you have any role in the investigation of the incident?

a. Decribe/details

b. Who talked to/documents you looked at.

29. Did you participate in the OSHA investigation?

a. What/when/who.

30. I want to get a list of all entities and people, both inside GP, and governmental

that investigated this incident?

a. OSHA

31. What was the outcome of the OSHA investigation?

32. Was GP cited or fined?

a. Why

b. What was basis of the fines?

c. Did you disagree with their findings?

i. Why?

33. Was the dust collection system working at the time of the fire?

a. Explain the dust collection system.

34. Are you familiar with the conveyor involved in the fire?

35. What role does that conveyor play in the business of GP?

36. Explain how this conveyor works for me please.

37. When was this conveyor installed?

38. What do you call the portion where IMI was working on the day of the fire?

39. Has that portion of the conveyor ever had to be replaced before?

a. Not recurring.

40. Why did GP Allendale enter into a long term contract with IMI to have IMI

perform work around the GP facility?

41. So, the amount of repairs that need to be done at the GP plant, the work force

GP employs directly is not equipped to handle that amount of work.

42. My understanding is that IMI would bring its own tools to do their jobs, is that

your understanding?

a. So GP doesn’t have the tools to handle all the work load either.

43. You don’t have the amount of skilled men or the necessary tools to do all

the repair work that needs to be done.

44. In your affidavit, you mention other work done on that specific portion of the

conveyor, is that correct?

45. Had the section IMI was replacing ever been replaced before?

46. That specific repair is not one that employees of GP Allendale would have

done prior to the accident?

47. The welding to the conveyor was not a recurring repair.

48. Customarily contracted out to independent contractors.

49. Customary practice for big plants to contract out major repair work.

50. Welding the conveyor is not a recurring repair

51. Did GP have the manpower to do all the work going on that day with its

own maintenance force?

52. Did GP have all the tools necessary to do all the work going on that day

with its own maintenance force?

53. IMI does not just work at GP, they work at all kinds of plants.

54. IMI was not the only subcontractor on site doing repairs.

55. Common to use multiple contractors to perform repairs/

56. Is the use of multiple contractors to perform plant repairs common in the OSB

industry?

57. Is this repair work/activity normally carried on through employees

rather than independent contractors?

58. IMI works pursuant to a Master Services Agreement or a MSA, are you familiar

with that?

a. Establish that the work is so routinely contracted out that there is an agreement in

place with IMI and other subcontractors.

59. Have you ever been paid workers compensation?

a. Describe.

60. Other fires

61. Other deaths

62. To your knowledge is it common for large manufacturing plants like GP

Allendale to hire outside contractors for repair work.

63. Could not manufacture and sell OSB without trees being delivered.

Show Affidavit

64. In the affidavit you mention that GP employees finished the project that IMI

started.

a. Did you remove all the covers on the conveyor to do so?

b. Why

c. Is that now official policy?

Other Subcontractors

65. There were other subcontractors on the site that day, correct?

a. Who?

b. What were they doing?

66. Is that common for GP to have a number of outside independent contractors

on the plant site during shutdown days?

a. What mainly do they do?

b. Do they supply their own tools?

c. Do you know if that is how other plants operate, do they hire a number

of outside contractors to come in on shut down days?

Excerpt from Summary Judgement Motion

Georgia Pacific employees have testified that the company was “not equipped to

handle with its own work force” the repairs needed at the facility.

Q. So typically the amount of repairs that need to be done on a shutdown day, the workforce that you directly employ is not equipped to handle that amount of work?

A. That's correct. Q. And as part of the MSA agreement, these

contractors also bring their own tools to do the work they're responsible for; is that correct?

A. Yes. Q. And that's because your workforce

doesn't have all the tools necessary for all those contractors to do the work when they arrived?

A. Yes, we have the tooling, we have the same stuff just not in quantities that would be needed for all of those individuals.

See Exhibit 2, Deposition of Herbert Houston, p. 91, ln 25 – p. 92, ln. 4. Q. Just a couple of follow-up clarifying

questions. So on a shutdown day, is it accurate to say that the amount of repairs that need to be done at the GP plant usually is greater than the workforce that GP directly employs is equipped to handle?

A. Correct. MR. WILLIAMS: Object to the form. BY MR. HALTIWANGER: Q. And do the independent contractors, are

they responsible for bringing their own tools to do the work that they're contracted to do?

A. Yes. Q. And GP would not have all of the tools

necessary to be able to supply those tools if the workers didn't bring them themselves?

A. No, sir. Q. Just to be clear, y'all wouldn't have

the tools available for all the needs for all the work being done?

A. No, we could not.

See Exhibit 5, Deposition of Otis Pye, p. 27 ln. 8 – p. 28, ln. 3.

While precedent states it is “difficult to lay down any hard and fast rule” in statutory

employment cases, one rule the South Carolina Supreme Court has established is that, “where

repairs are major, specialized, or of the sort which the employer is not equipped to handle with

its own work force, they are not part of the business.” Glass v. Dow Chemical Co., 325 S.C.

198, 201, 482 S.E.2d 49, 50-51 (1997). Georgia Pacific employees have testified that the repair

work being done by IMI was major, specialized, and Georgia Pacific was not equipped to handle

with its own work force. Georgia Pacific’s own testimony precludes any ruling that Dalton was

a statutory employee of the Defendant.

SAMPLE RULE 30(B)(6) DEPOSITION NOTICE STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS ) C/A #: _______________________ COUNTY OF ORANGEBURG ) ) ANDREW M._____AS SPECIAL ) ADMINISTRATOR FOR THE ESTATE OF ) MICKEY EZELL W.________, ) ) Plaintiff, ) ) vs. ) NOTICE OF TAKING 30 (b)(6) ) DEPOSITION OF B______ B________ OIL COMPANY, INC. ) OIL COMPANY, INC. ) Defendant. ) _________________________________________ ) TO: DEFENDANT B______ OIL COMPANY, INC.

Pursuant to Rule 30(b)(6), Federal Rules of Civil Procedure, Plaintiffs will take the

deposition of the designated corporate official(s) of B_______ Oil Company, Inc. on December

1, 2009 at a time and location to be agreed upon. Defendant shall designate corporate

official(s) to respond to the issues in this case, including, but not limited to the following subject

areas of inquiry, the person or persons most knowledgeable as to the following:

1. Insurance coverage and risk management matters for B_______ Oil.

2 B_______ Oil Company’s investigation of the subject incident.

3. All governmental investigations of the subject incident.

4. Claims, notices, and lawsuits filed for personal injuries sustained as a result of

occurrences similar to that stated in the Complaint of this lawsuit.

5. Federal State and local standards and/or regulations applicable to the transport

and delivery of fuel.

6. Safety training of B_______ Oil Company employees regarding the transportation

and delivery of fuel.

7. The employment history of all employees involved in the delivery of fuel to

R_________ Timber and Trucking, LLC on the date of the incident described in the complaint.

8. The identity of, and date of delivery to, any other customers of B_______ Oil in

the last 8 years that had ordered diesel fuel but received deliveries of gasoline.

Each of the designated officials of Defendant shall bring all documents in the official’s

possession, or in the possession of Defendant, that relate to the subject matter to which the

official will testify.

Respectfully submitted, By: ________________________

Daniel S. Haltiwanger (SC Bar #15705) E-Mail: dhaltiwanger@rpwb.com Christopher J. Moore (SC Bar #77934) E-Mail: cmoore@rpwb.com RICHARDSON,PATRICK, WESTBROOK

& BRICKMAN, L.L.C. P. O. Box 1368 1730 Jackson Street Barnwell, SC 29812 Telephone No.: (803) 541-7850 Fax No.: (803) 541-9625

Depositions of Medical Professionals

Breon C. M. Walker

Personal Injury Essentials

Friday, August 21, 2020

DEPOSITION OF DR. JOHN DOE

Background Information

1) Full Name

2) Present Address (years there)

3) Business Address (years there)

Medical Specialty:

4) What is your medical specialty?

5) In layman’s terms what does that specialty involve?

Education:

6) Undergraduate College – Date and Degree

7) Medical School – Date and Degree

2

8) Other Professional Schooling – Dates and Degrees

Employment/Professional History

9) License to practice medicine – which states?

a) When as to each?

b) Ever any discipline or suspensions?

c) Ever any periods of inactive status?

10) Internships

a) Where – inclusive dates?

b) What did you do?

11) Residency

a) Where – inclusive dates?

b) What did you do?

12) Board Certification

a) In what areas?

b) By Whom?

c) When?

d) How became board certified

e) Ever denied certification or fail board examination?

f) What is the significance of being board certified?

13) Other Medical or Professional Honors or Distinctions?

14) At what hospitals do you have privileges? Every suspended or revoked?

15) Articles and Publications:

a) When and Where

b) What subjects - titles

c) Written anything that was not published – what? Why not?

16) What medical journals or publications do you subscribe to?

3

17) What medical journals or publications to read regularly?

18) Presently employed by whom (and inclusive Dates)

19) Previous Employment back to residency? (and dates and practice)

Legal Matters:

20) Ever testified in a legal action?

a) What kind of cases

b) When and how often

c) Ever testify in court as an expert (name of cases)

d) Ever given a expert depositions (name of cases)

e) Ever testify in court as a treating physician (how many times)

f) Ever give deposition as a treating physician (how often)

g) Have you ever been a party to a lawsuit? (if yes, get details).

21) Membership in medical related associations (positions held) (lectures made)

22) Academic/teaching positions?

4

What did you do to prepare for this deposition? (Records reviewed)

Medical Records of Plaintiff

23) Subpoena—exhibit 1

24) Produce Complete Medical Record per subpoena

25) Withhold any record or document?

Records regularly kept in course of regular business activity,

created by a person with knowledge,

Maintained by the business

Notes of treatment of James T. Taft?

26) Treatment date _____________

When did you first see Plaintiff?

A) Go through chronology:

a. How did they get to the doctor?

b. What were their complaints?

c. Treatment/observations.

d. Diagnosis

e. Prognosis

f. Follow-up

g. Discharge

h. Opinions to a reasonable degree of medical certainty

Make sure the doctor authenticates all these records

As I said, at the end of this deposition, I’m going to ask you to form some opinions.

In doing so, I want to ask that you look at some other records that are also from

____________ and from other doctors.

a. You are a [insert doctor’s specialty]

b. When you treat a patient, do you normally rely on

records of other doctors?

c. In fact, you may request another doctor’s file regarding

a patient you are treating, correct?

5

d. I want to show a few records regarding Plaintiff’s

treatment prior to you seeing him

e. Would you rely on other doctor’s records in forming

opinions?

For each surgery

Who preformed this procedure?

What is this procedure?

Why have this procedure?

What were Plaintiff’s symptoms?

What did he complain of?

What was the date?

Prior to when you saw him?

Opinions re Pre-Existing Injuries: Did the doctor treat Plaintiff prior to the injury at issue?

i. How did they get to the doctor?

j. What were their complaints?

k. Treatment/observations.

l. Diagnosis

m. Prognosis

n. Follow-up

o. Discharge

p. Correlation between prior injury and injury at issue?

i. Reasonable degree of medical certainty

Did the doctor review records of Plaintiff’s prior medical treatment (by other medical

providers)? Why not?

What did you do to prepare for this deposition?

Have you ever spoken with Plaintiff’s counsel? When? About what?

Any additional information I need to know re: Plaintiff’s treatment and your opinions that

we have not already discussed?

Mediation

Jack McKenzie Charlie Moore

Dan Haltiwanger Breon C. M. Walker -No Materials Provided-

Personal Injury Essentials

Friday, August 21, 2020

Expert Witnesses

Dan Haltiwanger

Personal Injury Essentials

Friday, August 21, 2020

Expert Witnesses

Expert Witnesses

Three types of expert testimony are commonly encountered in litigation. The first is

strictly “expert” facts, such as a treating physician called for the plaintiff to establish what

injuries were suffered and what treatment has been given. Also, an expert such as a surveyor

may be called to provide roadway dimensions. A second kind of expert testimony involves

technical, scientific, or other specialized area of knowledge. This type of expert may be

called to explain to a jury how a machine works that is involved in the litigation or how a

particular business or industry operates. A third kind of expert testimony involves evaluating the

case facts and providing a specialized opinion about those facts. While there can possibly be

significant dispute involving the first two types of experts, this third class of expert testimony is

the one form of expert testimony that is most commonly in dispute in litigation. Here, the expert

has evaluated the specific “facts” of the case and is expressing a “scientific” opinion, usually

dispositive if believed, on the ultimate issue in dispute. This third type of expert testimony often

results in a “Battle of the Experts” when two qualified professionals look at the same facts but

reach opposite opinions.

A. When is Expert Testimony Required in a Case?

The first issue for expert testimony is to determine if such testimony is required to prove

your case. The South Carolina Supreme Court has stated that: “Expert evidence is required

where a factual issue must be resolved with scientific, technical, or any other specialized

knowledge.” Watson v. Ford Motor Co., 389 S.C. 434, 445, 699 S.E.2d 169, 175 (2010)

(emphasis added). The Watson case has significantly impacted the admissibility of expert

testimony in South Carolina and must be read by all attorneys planning to use expert testimony.

Expert testimony will be required in cases of professional malpractice. An expert with

the appropriate qualifications is necessary to establish the standard of professional care and the

defendant’s deviation from that standard. Common claims of malpractice involve doctors and

lawyers. However, any claim of professional misconduct may be subject to the requirement of

an expert to establish the standard of care and deviation. Such common cases involve engineers,

architects, and police officers. Expert testimony is required because: “[T]his is an area beyond

the realm of ordinary lay knowledge, expert testimony usually will be necessary to establish both

the standard of care and the defendant's departure therefrom.” Kemmerlin v. Wingate, 274 S.C.

62, 65, 261 S.E.2d 50, 51 (1979).

In product liability litigation, courts will almost always require the plaintiff to provide

expert testimony about the alleged design defect. This requirement is especially true for claims

of negligence as opposed to strict liability. Additionally, expert testimony may be required to

explain scientific or technical evidence to the jury. This field would include experts on DNA

evidence, medical procedures, and fire cause and origin testimony among a multitude of others.

Expert testimony is also required to prove some economic damages such as life care planners

and appraisers.

Even if not required, scientific evidence established through expert testimony may be

desirable in a case. Expert testimony may be used to help the jury to determine a fact in issue

based on the expert's specialized knowledge, experience, or skill and is necessary in cases in

which the subject matter falls outside the realm of ordinary lay knowledge. See Watson v. Ford

Motor Co., 389 S.C. 434, 445-446 (S.C. 2010). Rule 702 governs:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

South Carolina courts have acknowledged that areas of expertise such as dog handling in the

criminal context can be admitted. “Testimony of a dog handler based upon his observation of a

tracking dog may be properly admitted into evidence.” State v. Johnson, 306 S.C. 119, 127, 410

S.E.2d 547, 552 (1991). The expert must necessarily be qualified to give the testimony, but if it

assists the trier of fact, the testimony can be admitted.

In conclusion, multiple considerations must go into the decision to obtain scientific

evidence through expert testimony. First, is the testimony absolutely necessary for a party to

pursue or defend a case? Cases of malpractice and product liability almost always require expert

testimony. Also, if a vital piece of evidence, such as DNA or an element of damages, can only

be established through evidence “beyond the realm of ordinary lay knowledge”, expert testimony

is required.

If expert testimony is not explicitly required, it certainly may be desired to bolster a case.

In such situations, other concerns should be addressed: What is the cost/benefit of obtaining the

expert testimony? What is your opponent going to do in the case with respect to expert

testimony? Sometimes lay witnesses already in the case may be allowed to give “opinion”

evidence. Common examples include whether a vehicle was speeding, signs someone was

intoxicated, identification of someone’s known signature, and how some particular machine (like

a forklift) is operated. Under Rule 701, such testimony is permissible if:

1. Rationally based on perception of witness;

2. Helpful to determination of fact in issue; and

3. Does not require special knowledge.

Such opinion testimony by non-retained lay witnesses can be very effective. Additionally, no

expert report is necessary so lower costs can be a factor.

B. Qualifying an Expert

There are 5 main steps to qualifying a witness to give expert testimony to the jury:

1. Qualify the witness's knowledge;

2. Qualify the witness's familiarity with the case at hand;

3. Qualify the credibility of the expert's principles and methods;

4. Qualify the application of the techniques to the current case;

5. Request that the judge establish this witness as an expert for the record.

Each type of expert witness may have a variance in the order which the expert is credentialed,

but following this pattern generally will satisfy the qualifying requirements of any jurisdiction.

As an example, one very common expert witness in a personal injury case is the treating

physician. A party seeking to qualify a medical doctor would follow the above procedure. First,

the party must qualify the witness's knowledge. The most common starting place is with

addressing the expert’s education. Begin with the doctor’s undergraduate degree. Emphasize

any honors he received and if the school is local to the trial, it can add a local element into the

trial. Move onto medical school and cover the same areas.

Most doctors will have had an internship, be sure to emphasize any areas of subspecialty

during the internship that could benefit the doctor’s credibility. Following an internship, doctors

will go through a residency period. At some point in most residencies, many doctors will serve

as a chief resident which sounds impressive to a jury. Additionally, most medical specialties will

have an extensive board certification process. Get the doctor to explain the board certification

process and what it means in the profession.

Hospital affiliations can also establish a local connection between your doctor and the

jury members. Also, a doctor’s involvement in any associations, the receiving of any awards,

and any teaching responsibilities should be covered. Finally, if your doctor has published in the

area he is going to testify about, that fact should be told to the jury.

After establishing the doctor as professionally qualified, the next step is to establish his

familiarity with the case at hand. Most commonly this step can be achieved by starting with:

“How did John come to be treated by you?” The best answer is “John has been my patient for

his whole life.” However, a very common answer may be “John was referred to me by your

office.” If that is the truth, it is best for the attorney offering the witness to bring that fact out in

direct rather than wait for the opponent to capitalize on a distortion of the referral relationship.

Have the doctor give a detailed description of the initial meeting with the injured party,

paying very close attention to the history the patient has given to the physician. Review the

entire process of his examination. This element of qualifying the witness can often blend with

the 3rd and 4th steps. Have the doctor explain the process of differential diagnosis and ask if he

followed that process in treating the patient. Finally, ask the judge to qualify the doctor as an

expert so that he can give his opinions about the client’s diagnosis, current condition, and

expected course of treatment.

C. Discoverability of What You Give Your Expert

The federal rules governing the discoverability of materials and communications

exchanged with an expert have recently changed. Prior to December 2010, any and all drafts and

communications between attorney and an expert retained for testifying at trial were potentially

discoverable in this jurisdiction. See e.g., Elm Grove Coal Co. v. Director, Office of Workers'

Comp. Programs, 480 F.3d 278, 303 (4th Cir. 2007). This policy resulted in often limiting the

full and open communication between experts and counsel.

Rule 26 now provides work product protection to draft reports by testifying expert

witnesses as well as communications between a testifying expert and counsel. The work product

protection will not apply to communications with an expert: (1) about compensation for the

expert's study or testimony; or (2) that identify facts, data, or assumptions provided by counsel

and considered by the expert in forming opinions to be expressed.

Additionally, some courts had begun the practice of requiring all testifying experts to

supply an expert report. Such a requirement was a very large problem for treating physicians not

hired by the injured party for litigation. This requirement has been expressly rejected by the

amendments to the federal rules. If a party is relying on a witness who will provide expert

testimony, but is not required to provide a report in discovery (because the witness is not retained

or specially employed to provide expert testimony and is not an employee who regularly gives

expert testimony), the party must disclose the subject matter of the witness's testimony and

summarize the facts and opinions that the witness is expected to offer.

Here are the amended rules:

Rule 26. Duty to Disclose; General Provisions Governing Discovery1

. . . .

(2) Disclosure of Expert Testimony.

(A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705. (B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report – prepared and signed by the witness – if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony. The report must contain:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data or other information considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness’s qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case.

(C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state:

1 Additions are indicated by underlining and deletions are indicated by striking through.

(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify.

. . . . (b) Discovery Scope and Limits.

. . . . (4) Trial Preparation: Experts.

(A) Deposition of an Expert Who May Testify. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided. (B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded. (C) Trial-Preparation Protection for Communications Between a Party’s Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications: (i) relate to compensation for the expert’s study or testimony; (ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or (iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.

D. Finding an Expert a. Logistics

Expert testimony can make or break a case. If an attorney is looking for an expert in an

area the attorney is unfamiliar with or in which he has not used an expert before, the wrong

choice can be extremely expensive and potentially fatal to a case. Because of the high stakes

involved, who an attorney chooses to employ as an expert can be one of the most significant

decisions in the litigation.

My experience has been that personal referrals are the best source for finding an expert in

an area that I have no previous familiarity. As an attorney usually representing plaintiffs, I do

not limit myself to only asking other plaintiff attorneys who might be the best expert in a certain

area. If a defense lawyer I know (and trust) tells me that a fire cause and origin expert he uses is

the best he has seen, that recommendation carries significant weight. Likewise, if I have a

medical doctor tell me that a life care planner he recently worked with was the best he has ever

seen testify, I take those recommendations very seriously.

If you are looking for an area of expertise that you are unfamiliar with and can’t find

anyone to provide guidance, a search on Westlaw or Lexis can provide published cases where an

expert may have passed Daubert and testified on your issue. Of course, you should do a Daubert

check on all your experts prior to retaining them so as to be sure that they don’t have any major

skeletons in the closet that you will have to address on a motion to exclude. Also, interviewing

authors of published articles on the subject can be another source of experts, especially if their

work has been peer reviewed prior to publishing.

After you find an expert, be sure to get a written agreement in place. Also, send the

expert the applicable Rule 26 requirements before getting into the agreement so the expert knows

what is expected.

b. The Expert Report

To determine for yourself the adequacy of an expert report, go through the anticipated

challenges to determine if any weaknesses exist that can be addressed by further work by the

expert. The first challenge to any expert is that the expert is not qualified to give the opinions in

the case. “To be competent to testify as an expert, ‘a witness must have acquired by reason of

study or experience or both such knowledge and skill in a profession or science that he is better

qualified than the jury to form an opinion on the particular subject of testimony.’” Gooding v. St.

Francis Xavier Hosp., 326 S.C. 248, 252-53, 487 S.E.2d 596, 598 (1997).

This element should have been addressed well in advance of retaining the expert in the

first place and will not usually be a problem at the Expert Report stage of the litigation.

However, be sure to go through the expert’s Curriculum Vitae to make sure it is complete and

has all the information you would expect to be in there setting forth his experience. This practice

is especially important for any experts that do not routinely work in litigation as they are not as

familiar with the process and the importance of their credentials.

Be sure to research the area in which you are seeking expert testimony to make sure that

there are no “judicially created” expertise requirements for certain areas of testimony. For

example, one jurisdiction has required any expert giving fire cause and origin testimony to be a

certified fire inspector. See, e.g., American Family Ins. Group v. JVC Americas Corp., 2001 WL

1618454 (D. Minn. 2001).

After qualifications, the next area to be attacked will be the “reliability” of the expert

opinion. Opponents will argue your report/opinions are unreliable and therefore not admissible

under Rule 702. Precedent has established a multifaceted analysis for determining reliability:

1. Whether the particular scientific theory “can be (and has been) tested”;

2. Whether the theory “has been subjected to peer review and publication”;

3. The “known or potential rate of error”;

4. The “existence and maintenance of standards controlling the technique's operation”; and

5. Whether the technique has achieved “general acceptance” in the relevant scientific or

expert community.

See United States v. Crisp, 324 F.3d 261, 265-66 (4th Cir. 2003). This analysis will be highly

specific to each expert and the field they are testifying about.

Before submitting an expert report, be sure to review to determine that the expert has

addressed all of the significant facts in the case. There are four kinds of basic facts: (1) Facts the

expert observes himself; (2) Facts the expert knows from his education or experience; (3) Facts

that are told to him by someone (hearsay); and (4) Facts asked to be assumed (sometimes a

hypothetical). For each of the facts your expert is relying upon as the basis of his opinion, be

sure the expert identifies its source.

For the facts observed by the expert, determine if you can also observe them and they are

the same or if their condition differs. For instance, an accident reconstructionist gives his

opinion about the force of impact between two automobiles based upon the “significant damage”

to the front right panel. See for yourself if there is such damage. Check to see if all the

measurements or calculations are correct. Find out if he is making these observations based

upon actually seeing the facts or did he perceive them from a photograph, be sure the source is

explicit.

For facts based upon the expert’s education or experience, be sure the expert names

authoritative sources for his facts. For facts that he claims to have knowledge of but does not

cite to a text to support, check if that material can be included. Obviously hearsay has its own

inherent weaknesses that can be attacked. Be sure to include whatever your expert has done to

verify any hearsay information he is relying upon.

“Assumed facts” that are not part of a hypothetical question are the most likely to receive

an attack. Make sure your expert has a sound reason for assuming Fact A instead of Fact B.

Make sure to check if the basis for the assumed fact is actually established in the record.

c. Expert Reports are Not Admissible

Expert reports are not usually admissible on direct exam in a case. Obviously visuals

such as charts and graphs that are often found in a report can be admissible on their own as

demonstratives, but the general rule is that expert reports are needlessly cumulative hearsay

when the expert is available to testify live. Some courts have made exceptions to this general

rule based on the reports being statements of a party opponent, especially if the report was

prepared by an employee of the party.

Expert reports can be used generally and admitted to cross examine an expert if he

provides inconsistent statements at trial, but that approach runs the risk of the expert report going

to jury room during deliberations as an exhibit which might do more harm than good to a case.

E. Spotting Potential Errors

One reason you are using an expert is that the topic area is “beyond the realm of ordinary

knowledge.” As a result, it may be difficult for an attorney to verify all of the material in a

report. Your expert may be able to get another member of his firm to review his report for

errors. For example, if an engineer is one of four in a partnership, ask for one of the partners to

review the draft report for accuracy.

Calculations should always be verified and double checked. One of the fastest paths to

exclusion is if the expert has to admit his math was incorrect in his report. Also, your expert

should make available to you all the supporting literature he cites to so that you can check the

source for accuracy.

The expert will not have a copy of the court’s scheduling order. My practice is to tell the

expert the report is due to me in final form about 10 days before it is actually due to the court.

This time allows me to review the report and, if necessary, get further work on the report

completed by the expert before turning it over. If, despite your best efforts, an expert report is

submitted with a significant error, there is a process for issuing supplemental reports.

Checklist for Challenging Expert Testimony

1. Is the proposed subject one that needs expert testimony? a. Define what the proposed subject area of expert testimony is. b. Whether the situation is a proper one for the use of expert testimony is to be

determined on the basis of assisting the trier. i. "There is no more certain test for determining when experts may be used than

the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute." Ladd, Expert Testimony, 5 Vand.L.Rev. 414, 418 (1952).

1. In short, while testimony from experts may be desirable if not crucial in many cases, excesses cannot be doubted and should be curtailed.

2. “The amendment specifically provides that the trial court must scrutinize not only the principles and methods used by the expert, but also whether those principles and methods have been properly applied to the facts of the case.”

2. Is the witness qualified as an expert by knowledge, skill, experience, training, or education to “explain the evidence” related to the particular subject or to “help determine a fact in issue” related to that subject? a. Has case law established criteria necessary to discuss this particular subject?

i. What is the education necessary? ii. What is the experience necessary?

iii. The burden of establishing that the expert is qualified is on the party proposing him.

3. Is the testimony of the expert witness based upon facts that are in the record? a. Expert testimony based on speculation or unrealistic assumptions will not assist the

trier of fact and must be excluded under Daubert and Federal Rule of Evidence 702(3) (“the witness has applied the principles and methods reliably to the facts of the case.”).

i. “Facts do not cease to exist because they are ignored.” Aldous Huxley ii. “Facts are stubborn things; and whatever may be our wishes, our inclinations,

or the dictates of our passion, they cannot alter the state of facts and evidence.” John Adams

iii. "Everyone is entitled to his own opinion, but not to his own facts." Daniel Patrick Moynihan

iv. “Every man has a right to his own opinion, but no man has a right to be wrong in his facts.” 8 August 1965, Ocala Star-Banner, “History By Schlesinger” (Arthur J. Schlesinger, Jr.—ed.) by Henry J. Taylor, pg. 4, col. 2

a. Rule 703: Are the facts used by the expert supported by the record? v. The Fourth Circuit found that “[w]hen the assumptions made by an expert are

not based on fact, the expert's testimony is likely to mislead a jury, and should be excluded by the district court.” Tyger Constr. Co., Inc. v. Pensacola Constr. Co., 29 F.3d 137, 144 (4th Cir. 1994)( The Fourth Circuit interpreted this rule to mean that an “expert's opinion should be excluded when it is based on assumptions which are speculative and are not supported by the record.”); see

also Blake v. Bell's Trucking, Inc., 168 F. Supp. 2d 529, 533 (D. Md. 2001) (excluding expert's opinion under Federal Rule of Evidence 703 because expert's conclusions were based on speculation about conditions which were unsupported in the record).

vi. Expert testimony based on speculation or unrealistic assumptions will not assist the trier of fact and must be excluded under Daubert and Federal Rule of Evidence 702. See Irvine v. Murad Skin Research Labs., Inc., 194 F.3d 313, 320 (1st Cir. 1999) (excluding expert's opinion based on erroneous factual information as expert relied on management's representations instead of verifying data himself);

1. “[E]xpert testimony that ignores existing data and is based on speculation is inadmissible.” JMJ Enters., Inc. v. Via Veneto Italian Ice, Inc., No. Civ. A. 97-CV-0652, 1998 WL 175888, at *6 (E.D. Pa. Apr. 15, 1998).

4. Is the Expert’s testimony reliable? a. Rule 702(2) the testimony is the product of reliable principles and methods,

i. Whether the testimony is supported by adequate validation to render it trustworthy.

b. Reliability factors: i. Daubert Reliability factors

1. “Whether the expert's technique or theory can be or has been tested - that is, whether the expert's theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability;”

a. “We’ve been presented with only the experts’ qualifications, their conclusions and their assurances of reliability. Under Daubert, that's not enough.”

b. The first Daubert factor - whether the theory or conclusion can be and has been tested - has been described as “the most significant Daubert factor.” Garcia v. BRK Brands, Inc., 266 F. Supp. 2d 566, 574 (S.D. Tex. 2003)(quoting Cummins v. Lyle Indus., 93 F. 3d 362, 368 (7th Cir. 1996)). The Southern District of Texas has noted, “numerous cases have held that the failure to subject a proffered opinion to scientific testing justifies exclusion.” Garcia, 266 F. Supp. 2d at 574 (citing Brooks v. Outboard Marine Corp., 234 F.3d 89, 92 (2d Cir. 2000) (holding that failure to test theory of causation justified exclusion of expert testimony); Moore v. Ashland Chem. Inc., 151 F.3d 269, 279 (5th Cir. 1998)(failure to testify on causation justified exclusion); Pride v. BIC Corp., 218 F.3d 566, 577-78 (6th Cir. 2000)(holding that theory of manufacturing defect properly excluded where experts failed to timely conduct reliable testing or to validate theory by reference to generally accepted scientific principles); Bourelle v. Crown Equip. Corp., 220 F.3d 532, 536 - 38 (7th Cir. 2000)(holding that alternative design theory properly excluded

where expert conducted no scientific testing in support of theory)). See also Guy v. Crown Equip. Co., 394 F.3d 320, 325 (5th Cir. 2004)(expert excluded for failure to test alternative designs).

c. Indeed, in Porter v. Whitehall Labs., Inc., 9 F.3d 607 (7th Cir. 1993), we acknowledged that “there may be a situation in which personal experiments or observations meet the requirements of Daubert.” Id. at 614 n.6. As in Porter, however, the opinions offered by Dr. Carpenter in this case clearly lend themselves to testing and substantiation by the scientific method. The district court clearly acted well within its discretion in concluding that the absence of such testing indicated that the witness’ proffered opinions could not fairly be characterized as scientific knowledge.

d. An expert’s failure to test his theories has repeatedly resulted in the exclusion of testimony. See Mohney v. USA Hockey, Inc., 138 Fed. Appx. 804, 808 (6th Cir. 2005) (affirming district court decision to exclude expert testimony where engineer was unable to cite any published work to support his theory of accident, acknowledged that he had not performed any tests, where theory was not subjected to peer review and expert performed his calculations based on a series of assumptions); Burleson v. Texas Dept. of Criminal Jastice, 393 F.3d 577, 584 (5th Cir. 2004) (excluding toxicologist's testimony regarding causal connection between chemical exposure and cancer where theory had never been tested or submitted for peer review); Wills v. Amerada, 379 F.3d 32 (2d Cir. 2002) (affirming exclusion of forensic toxicologist's expert opinion that toxic chemicals caused fatal cancer where there was no evidence that theory had been [ILLEGIBLE WORD]ested or subjected to peer review, but was simply "the product of [expert's] own background experience and reading"); Chapman v. Maying Corp., 297 F.3d 682, 688 (7th Cir. 2002) (finding error in the admission of expert testimony unsupported by scientific tests, experiments and studies); Grant v. Pharmavite, L.L.C., 452 F. Supp. 2d 903 (N.D. Neb. 2006) (noting the testimony of plaintiffs toxicology expert was not sufficiently reliable under Daubert because the expert did not lest his theory, which was developed solely in connection with the litigation, and because the expert simply declared the contrary research "winng," rather than sufficiently distinguishing the overwhelming contradicting research); Indiana Insurance Co. v. General Electric Co., 326 F. Supp. 2d 844, 853 (N.D. Ohio 2004) (excluding fire origination expert testimony because expert failed to conduct independent testing and opinion was based on suspect investigation results).

e. He is an engineer capable of testing such a theory, but has failed to do so. Accordingly, his testimony is based on mere speculation and is therefore inadmissible. See Solheim Farms, Inc. v. CNH America, LLC, 503 F.Supp.2d 1146, 1149 (D.Minn. 2007), [*12] citing Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039, 1056-57 (8th Cir. 2000).

f. “[A]n important factor under Daubert is the testability of the expert's conclusions and theory.” Michaels v. Avitech Inc., 202 F.3d 746, 753 (5th Cir.), cert. denied, 531 U.S 926 (2000). Proffered expert testimony is inadmissible when it is untested and fails to satisfy the Daubert/Kumho criteria for reliability. See, e.g., Guy v. Crown Equipment Corp., 394 F.3d at 326-27 (expert's opinion about restraining device and door on forklift did not satisfy Rule 702 where he relied on conceptual sketches and broad ideas and failed to test any of his alternative designs); Black v. Food Lion, Inc., 171 F.3d at 313-15 (doctor's testimony that fall caused trauma that led to plaintiff's fibromyalgia was unsupported by a scientific methodology where no testing or peer review had verified her theory); Watkins v. Telsmith, Inc., 121 F.3d 984, 992-93 (5th Cir. 1997) (district court properly excluded testimony of civil engineer who made no drawings or calculations and did not test his proposed alternative designs of a conveyor); Tassin v. Sears, Roebuck and Co., 946 F. Supp. 1241, 1249-50 (M.D. La. 1996) (engineer's methodology for determining that a miter gauge hold-down clamp on a table saw was an alternative design was virtually non-existent and made his opinion unreliable and inadmissible where he did not test the clamp or review the tests of others, where the literature did not specifically endorse it as an alternative design, and where he formed his opinion based on a picture without knowing its dimensions or specifications and without performing any engineering calculations); Braun v. Lorillard Inc., 84 F.3d 230, 233-36 (7th Cir.) (excluding expert testimony on the presence of asbestos where the expert's method for determining presence of fibers has never been tested or accepted), cert. denied, 519 U.S 992 (1996). "[N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert." General Electric Co. v. Joiner, 522 U.S. 136, 146, 118 S. Ct. 512, 139 L. Ed. 2d 508 (1997). See also Kuhmo, 526 U.S. at 157; Moore, 151 F.3d at 275. Here, Grigory reached his conclusory opinions about flexhose design without developing any protocols or performing any tests whatsoev

2. “whether the technique or theory has been subject to peer review and

publication;” a. The failure of an expert to rely upon a peer-reviewed

methodology or a peer-reviewed theory has often been cited or mentioned by courts as a basis for excluding expert testimony. See, e.g., Wilson, 303 Fed. Appx. at 714 (expert "did not show any evidence that his opinion ha[d] been peer reviewed or that he used a peer-reviewed source to reach his opinion"); McCool, 222 Fed. Appx. at 857 (referring to "the lack of any scientific support for [the expert's] opinion, such as . . . peer-reviewed articles"); Paz, 555 F.3d at 390 (no evidence that expert's theory had been peer reviewed); Meadows, 306 Fed. Appx. at 789 (no evidence that expert's methodology was subject to peer review and no literature supporting expert's conclusions); Murray v. Marina Dist. Dev. Co., 311 Fed. Appx. 521, 524 (3d Cir. June 4, 2008)(expert's "report and deposition testimony fail[ed] to demonstrate any methodology, let alone peer-reviewed or generally accepted methodology, underlying his opinion"); [*37] Wagner v. Hesston Corp., 450 F.3d 756, 759-61 (8th Cir. 2006)(finding "minimal" evidence of peer-review); Fuesting, 421 F.3d at 536-37 (expert's theory had not been published in peer-reviewed literature); Chapman, 297 F.3d at 688 (expert cited no supportive literature); Oddi, 234 F.3d at 148 (expert cited no literature); McCorvey, 298 F.3d at 1256-57 (expert cited no supporting literature); Alfred v. Mentor Corp., 479 F. Supp. 2d 670, 673 (W.D. Ky. 2007)("By his own admission, [the expert] has failed to present the theory supporting his opinion in peer-reviewed publications."); Honaker v. Innova, Inc. & HSN LP, 2007 WL 1217742, at *2 (W.D. Ky. Apr. 23, 2007)("Having failed to perform tests to buttress his theory, it is implausible that [the expert's] theory or testing could be submitted to scientific peer review.").

3. “the known or potential rate of error of the technique or theory when applied;”

a. Indeed, as the Eighth Circuit stated in Smith v. Cangieter, 462 F.3d at 924, "where there is no testing, there cannot be a known rate of error for the district court to consider." See also, e.g., Sorto-Romero, 2007 WL 2816191, at *9 (since the expert did not test his theories, the error rate factor could not be considered); Solheim Farms, 503 F. Supp. 2d at 1150 [*40] (no evidence of rate of error because expert did not conduct testing).

4. “the existence and maintenance of standards and controls; and” 5. “whether the technique or theory has been generally accepted in the

scientific community.”

vii. Non-Daubert List Reliability factors 1. Whether experts are ''proposing to testify about matters growing

naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying.'' Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995).

2. Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion. See General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (noting that in some cases a trial court ''may conclude that there is simply too great an analytical gap between the data and the opinion proffered''). Too much speculation--not enough fact.

a. Whether the expert has unjustifiably extrapolated from an accepted fact to an unfounded conclusion.

i. To analyze the reliability of the opinion, the Court must also consider the unproven facts that the witness had to assume to reach this conclusion.

1. The failure of all these unsupported suppositions or any one of them renders would render the expert’s theory inadmissible.

b. As Judge Posner has explained: “a district judge asked to admit scientific evidence must determine whether the evidence is genuinely scientific, as distinct from being unscientific speculations offered by a genuine scientist.” Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 318 (7th Cir. 1996). Here we have a genuine doctor presenting unsupported medical speculation. He cannot just make up facts to support his opinions--he cannot offer opinions that are "educated guesses dressed up in evening clothes." Siharath v. Sandoz Pharms. Corp.., 131 F. Supp. 2d 1347, 1373 (N.D. Ga. 2001).

i. Speculation and unproven data do not make for a reliable methodology. Again quoting Judge Posner: “The courtroom is not the place for scientific guesswork, even of the inspired sort. Law lags science; it does not lead it.” Rosen, 78 F.3d at 319

3. Whether the expert has adequately accounted for obvious alternative explanations. See Claar v. Burlington N.R.R., 29 F.3d 499 (9th Cir. 1994) (testimony excluded where the expert failed to consider other obvious causes for the plaintiff's condition). Compare Ambrosini v. Labarraque, 101 F.3d 129 (D.C.Cir. 1996) (the possibility of some uneliminated causes presents a question of weight, so long as the most obvious causes have been considered and reasonably ruled out by the expert).

4. Whether the expert ''is being as careful as he would be in his regular professional work outside his paid litigation consulting.'' Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir. 1997). See

Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167, 1176 (1999) (Daubert requires the trial court to assure itself that the expert ''employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field'').

5. Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give. See Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167, 1175 (1999) (Daubert's general acceptance factor does not ''help show that an expert's testimony is reliable where the discipline itself lacks reliability, as, for example, do theories grounded in any so-called generally accepted principles of astrology or necromancy.''); Moore v. Ashland Chemical, Inc., 151 F.3d 269 (5th Cir. 1998) (en banc) (clinical doctor was properly precluded from testifying to the toxicological cause of the plaintiff's respiratory problem, where the opinion was not sufficiently grounded in scientific methodology); Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th Cir. 1988) (rejecting testimony based on ''clinical ecology'' as unfounded and unreliable).

5. Is the expert’s opinion repetitive? 6. When an expert relies on inadmissible information, Rule 703 requires the trial court to

determine whether that information is of a type reasonably relied on by other experts in the field.

7. The Rule 403 inquiry must be particularly stringent as applied to expert testimony, which is "both powerful and quite misleading because of the difficulty in evaluating it." Daubert, 509 U.S. at 595, Allison, 184 F.3d at 1310. Accordingly, evidence that survives a Rule 702 inquiry, but is likely to prove more confusing or misleading to a jury than it is helpful, must be excluded. Fed. R. Evid. 403.

An expert's "subjective belief or unsupported speculation" does not meet the Daubert standard. See Smesler, 105 F.3d 299, 303. As stated by the Daubert court, the word 'knowledge' means "more than subjective belief or unsupported speculation." Price v. Bic Corp., 218 F.3d 566, 576 (6th Cir. 2000).

Summary Judgment

Dan Haltiwanger

Personal Injury Essentials

Friday, August 21, 2020

Effective Use of Summary Judgment

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

COLUMBIA DIVISION

C/A NO.: 3:10-2723-CMC Ryan W. Porter,

Plaintiff,

vs. Waters Incorporated of Charlotte, Columbia Storage Associates Limited Partnership

Defendant.

Waters Incorporated of Charlotte,

Third-Party Plaintiff

vs. Northeast Noise Abatement Corporation,

Third-Party Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

MEMORANDUM OF PLAINTIFF IN OPPOSITION TO DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT

Plaintiff Ryan Porter submits this Memorandum in Opposition to Defendants’ Motion for

Summary Judgment. For the following reasons, there is ample evidence upon which a jury could

find in favor of the Plaintiff and thus the drastic remedy of Summary Judgment is not appropriate in

this case.

BACKGROUND

This is a premises liability case arising from an incident where a roll-garage door at a mini

storage facility owned by Columbia Storage Associates Limited Partnership and operated by Waters

Incorporated of Charlotte (“the mini storage facility”) rolled up too far, went over its axle, and

struck Plaintiff Ryan Porter in the face and chest.1

The garage door at issue weighs approximately one hundred to one hundred and twenty

pounds.2 The garage door is a roll up garage door designed to spiral and coil around an axle as it is

raised.3 The door slides up guided by metal tracks that are attached to a cement wall.4 The only

stopping device on the door is the handle attached to the bottom of the door.5 This handle is

designed to catch the bottom of the cement block door header and stop the door.6

On December 18, 2008, Mr. Porter was at the mini storage facility and attempting to access

materials stored by his employer Third Party Defendant Northeast Noise Abatement Corporation

(“NENA”).7 When Mr. Porter opened the door of the garage unit at issue, the door did not stop as

designed and instead uncoiled and violently struck Mr. Porter.8

1 Exhibit 1, Verified Complaint, ¶¶ 8-11; Exhibit 2, Affidavit of Ryan Porter ¶4; Exhibit 9, Ryan Porter deposition, p. 106, l. 24 to p. 107, l. 6; Exhibit 7, Luciano Periera deposition, p. 27, l. 4 to p. 28, l. 10 (“So it just went up and just curled over itself…Q: [T]he door literally went up and around the access [axis]? A: Yes.”). 2 Exhibit 2, Affidavit of Ryan Porter, ¶ 4. 3 Exhibit 3, Rule 30(b)(6) deposition of Waters Incorporated of Charlotte, p. 24, ll. 19-21, Ex. 9, and p. 25, ll. 9-24. 4 Exhibit 3, Rule 30(b)(6) deposition of Waters Incorporated of Charlotte, p. 23, ll. 9-13 and Ex. 8. 5 Exhibit 3, Rule 30(b)(6) deposition of Waters Incorporated of Charlotte, p. 28, l. 15, p. 28, l. 17 to p. 29, l. 7; p. 29, ll. 12-13 and p. 34, ll. 18-22. 6 Id. 7 Exhibit 1, Verified Complaint. 8 Exhibit 1, Verified Complaint ¶ 11; Exhibit 2, Affidavit of Ryan Porter ¶4; Exhibit 9, Ryan Porter deposition, p. 106, l. 24 to p. 107, l. 6; Exhibit 7, Luciano Periera deposition, p. 27, l. 4 to p. 28, l. 10 (“So it just went up and just curled over itself…Q: [T]he door literally went up and around the access [axis]? A: Yes.”).

The door handle on the door at issue did not catch the bottom of the cement door header

because wood timbers attaching the door’s tracks to the walls were pulling away from the walls.9

This pulled the handle away from the bottom of the cement door header and prevented the header

from catching the handle and stopping the door.10

The blow from the over one hundred pound garage door caused Mr. Porter severe damages.

Mr. Porter has been unable to return to his job as a foreman of a construction crew and has endured

multiple neck/back surgeries. Mr. Porter’s neck/back problems began within forty-five minutes of

being knocked to the floor by the over one hundred pound garage door.11

STANDARD

Summary judgment is only appropriate "if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

Fed. R. Civ. P. 56 (c). Summary judgment should be granted "only when it is clear that there is no

dispute concerning either the facts of the controversy or the inferences to be drawn from those

facts." Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). The party moving for

summary judgment has the burden of showing the absence of a genuine issue of material fact, and

the court must view the evidence before it and the inferences to be drawn therefrom in the light

9 See Exhibit 8, Dr. Durig Report, p. 4 (“The combination of the wood timbers pulling away from the CMU blocks which decreased the contact between the door handle and the door header and a lack of components on the roll-up door to prevent the door from rolling all the way around the axle assembly when fully raised created a defective and hazardous condition.” ). 10 Exhibit 4, Defendants’ Expert deposition, p. 37, ll. 8-15 (wood gap allows the handle to go past initial header); also Exhibit 3, 30(b)(6) of Waters, p. 32, ll. 19-23, p. 33, l. 3, p. 33, ll. 5-9 (wood gap would allow door to go all the way around); and Exhibit 5, Dr. Bryan Durig deposition, p. 73, l. 19 to p. 75, l. 20 (wood pulling away from wall created gap for handle to miss header). 11 Exhibit 2, Affidavit of Ryan Porter, ¶¶ 12 and 13.

most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct.

993, 8 L. Ed. 2d 176 (1962).

DISCUSSION

Defendants have moved for summary judgment arguing that the evidence in this case is

insufficient to prove: (1) Defendants breached any duty owed to Mr. Porter;12 (2) Defendants’ acts

did not proximately cause Mr. Porter’s injuries;13 and (3) Mr. Porter cannot prove punitive

damages.14 As shown by the following, all of Defendants’ arguments fail and there is ample

evidence for the jury to find in favor of Mr. Porter on all grounds.

Plaintiff has alleged two causes of action: negligence and premises liability.15 Both of these

causes of action turn on the core elements of duty, breach, causation, and damages. See Exhibit 6,

jury charges from The Judge’s Handbook, South Carolina’s State Court Judge’s standard jury charges

on South Carolina law with supporting cases. Plaintiff can prove all elements.

(1) DEFENDANTS BREACHED DUTIES OWED TO MR. PORTER INCLUDING: (a) FAILURE TO ELIMINATE A KNOWN HAZARD AND (b) FAILURE TO WARN OF A KNOWN HAZARD:

The duty owed to Plaintiff for both causes of action arise from his status as an invitee. See

Larimore v. Carolina Power & Light, 340 S.C. 438, 531 S.E.2d 535 (Ct.App. 2000) (“Because

Larimore was a business visitor invited to enter or remain on the property for a purpose directly or

indirectly connected with Williams, Larimore was an invitee.”).16 Defendants’ Memorandum only

12See argument III on pp. 13-20 of Defendants’ Memorandum. 13See argument I on pp. 7-11 of Defendants’ Memorandum and argument VII (proximate cause as to back injuries) on pp. 21-22 of Defendants Memorandum. 14See argument VI on pp. 20-21 of Defendants’ Memorandum. 15See Exhibit 1, Verified Complaint. 16 Defendants’ Memorandum only addresses the law as to invitees. See pages 13 to 14. Accordingly, Defendants concede that Mr. Porter was an invitee.

addresses the law as to invitees. See pages 13 to 14. As such, Defendants concede that Mr. Porter

was an invitee. The duty owed to Mr. Porter as an invitee is stated as follows: “[a] landowner owes

an invitee a duty of due care to discover risks and to warn of or eliminate foreseeable unreasonable

risks.” Landry .v Hilton Head Prop. Owners Ass’n, 452 SE2d 619 (Ct. App. 1994) citing HUBBARD

& FELIX at 80. 17

The following chart shows that the evidence in this case supports a jury finding that

Defendants breached the duty owed to Mr. Porter as an invitee. The first column contains quotes

from the Judge’s Handbook, South Carolina’s State Court Judge’s standard jury charges on South

Carolina law18 for invitees and the second column contains citations to evidence in this case.

JUDGE’S HANDBOOK JURY CHARGE EVIDENCE FROM THIS CASE

“IN ADDITION THE DEFENDANT HAS A DUTY TO USE REASONABLE CARE TO DISCOVER UNREASONABLY DANGEROUS CONDITIONS ON THE PREMISES AND EITHER CORRECT THE CONDITION OR WARN THE INVITEE OF THE DANGER” (emphasis added) (citations in Exhibit 6).

An over 100 lb. garage door19 that can swing all the way around its axle and strike a person opening a garage door is an unreasonably dangerous condition. The fact that an un-spiraling 100 pound garage door is an unreasonably dangerous condition is shown by the violent blow suffered by Mr. Porter. See Exhibit 7, Luciano Pereira (eye witness)

17Defendants’ premises liability expert agrees that the Defendants have a duty to eliminate known hazards. See Exhibit 4, Roger Davis deposition, p. 23, ll. 17-21 and p. 23, l. 23 to p. 24, l. 2 (Q: Mr. Davis, would you agree that a commercial premises center [sic owner] should eliminate known hazards if possible? A. I would agree with that, yes. Q: Is that rule important? A. Yeah, I would say so Yes. Q: Why is that? A. Well, I think an owner of a facility has a duty to protect people they invite into the premises. Q: Similarly, would you agree that if a commercial premises owner knows or should have known about an unsafe condition, they should take action to resolve it? …A. I would agree with that.” 18 Attached as Exhibit 6 are jury charges the Judge’s Handbook, South Carolina’s State Court Judge’s standard jury charges on South Carolina law. 19 See Exhibit 2, Ryan Porter affidavit, paragraph 4 (“The door weighed approximately 100 to 125 pounds.”).

deposition, p. 29, ll. 16-24 and p. 30, ll. 8-15) (“Q: Why were you recommending him to go to the hospital? A: Well, he didn’t look too good. His face was—his nose was swollen and he had a cut you his lip and I seen him fall right down in front of me. He took a nice impact on the door. Q: Well, describe that impact for me. A: Oh, I mean, it was like getting a right hand to the face. … Q: And certainly it delivered a violent force to Mr. Porter when it hit him. … A: Yes, it did. Q: And it true that Mr. Porter fell down after it him him? A: Yes, Mr. Porter was down for about 3 or 4 seconds and then he caught himself and he got up.”) See Exhibit 2, Ryan Porter affidavit ¶4 (“I was violently struck by the garage door at issue on December 18, 2008. The door struck me with tremendous force and with a whipping action that resulted as the door went around its axle.”). Dr. Durig will also opine that a metal garage door that can swing back and hit users in the face is a hazardous condition. See Exhibit 5, Dr. Durig deposition, p. 106, l. 10 to p. 107, l. 6 (“Q: [H]ow would she know this condition was dangerous if, in seven years working at a facility, there’s never been a single injury, but there has been evidence of the door coming off the track and coming around the axle? A: Well I think commonsense tells you if that comes flying around that axle its going to hit something or its going to keep on going. It’s got to stop. Q: And that would be common sense to who?

A: Anybody looking at it. Q: And that’s just based on your intuition? A: No, its based on my education, training and experience. If I’ve got a piece of metal that’s---that’s going outside of its intended direction and its rotating back towards the person that’s opening it, then I think most people would realize that’s probably not a good thing.”) See Exhibit 8, Dr. Durig Report, p. 4 (“The combination of the wood timbers pulling away from the CMU blocks which decreased the contact between the door handle and the door header and a lack of components on the roll-up door to prevent the door from rolling all the way around the axle assembly when fully raised created a defective and hazardous condition.” ). The above cited evidence when taken in the light most favorable to Mr. Porter is sufficient for a jury to conclude that a one hundred plus pound garage door that can go all the way around its axis and strike a user is an unreasonably dangerous condition.

“IN ADDITION THE DEFENDANT HAS A DUTY TO USE REASONABLE CARE TO DISCOVER UNREASONABLY DANGEROUS CONDITIONS ON THE PREMISES AND EITHER CORRECT THE CONDITION OR WARN THE INVITEE OF THE DANGER” (emphasis added) (citations in Exhibit 6).

Defendants knew or should have known about the dangerous condition. This can be shown by the fact that this event has happened on doors at the facility in the past. See Exhibit 10, Betty Lloyd (on site facility manager) deposition, p. 18, ll. 9-15, 18, 20-22, 24; p. 19, ll. 1-2, 4, 23-25, p. 20, l.1 (“Q: And isn’t it also true that you’ve had tracts come off the top ever since you’ve started working there in approximately 2001? A. Yes, sir. Q: And when those tracts come off the top, isn’t it also true that the garage door at issue can just wrap back around? A: Yes, sir. Q: And when it wraps back around, it would come down, but not be on the tract, and still be hanging from the thing?

A. Yes, sir. Q: And you’ve had that happen, you know since 2001? A: Yes, sir.”). Defendants’ knowledge of the danger of Defendants’ doors going around the axle can also be shown by the fact that Defendants had installed door stoppers on other doors at the facility. See Exhibit 1, Verified Complaint ¶ 13 and Exhibit 2; See also Exhibit 4, Roger Davis deposition, p. 54, l. 18 to p. 55, l. 8 with Exhibit 5 and 93; And Exhibit 8, Dr. Durig Report, p. 5 (“There were two different designs that were observed at The Mini Storage Center during my on-site investigation with Figures 9 and 10). There is no reason to have door stoppers on the other doors unless the Defendants knew the doors at the facility have a propensity to go around the axle. Additionally, Defendants’ manager had experienced the same phenomena when opening the doors. See Exhibit 10, Betty Lloyd deposition, p. 35, ll. 1-13 “Q: When you experienced the door come off the tract, were you opening the door or closing the door, meaning the units at the facility? A: Did I experience it myself? Yes. Q: What were you doing at the facility when you have experienced a door at the facility coming off the tract? A: Inspecting it.”). The above evidence when taken in the light most favorable to the Plaintiff is sufficient to show that Defendants knew or should have known of the danger of its doors failing to stop and going around the axle at door users.

IN ADDITION THE DEFENDANT HAS A DUTY TO USE REASONABLE CARE

The fact that Defendants did not correct the condition can be shown by the fact

TO DISCOVER UNREASONABLY DANGEROUS CONDITIONS ON THE PREMISES AND EITHER CORRECT THE CONDITION OR WARN THE INVITEE OF THE DANGER” (emphasis added) (citations in Exhibit 6).

that the door at issue like the other prior occurrences again spiraled around and hit Mr. Porter. See Exhibit 9, Ryan Porter deposition, pp. 106, l. 24 to p. 107, l. 6; See also Exhibit 7, Luciano Pererira deposition, p. 27, l. 4 to p. 28, l. 10 (“So it just went up and just curled over itself…Q: [T]he door literally went up and around the access [axis]? A: Yes.”). The jury, when viewing this evidence in the light most favorable to Mr. Porter, can easily find that Defendants failed to correct/eliminate the dangerous condition. Quite simply, if the Defendants had fixed the doors to prevent the un-spiraling, it would not have happened again and injured Mr. Porter.

“IN ADDITION THE DEFENDANT HAS A DUTY TO USE REASONABLE CARE TO DISCOVER UNREASONABLY DANGEROUS CONDITIONS ON THE PREMISES AND EITHER CORRECT THE CONDITION OR WARN THE INVITEE OF THE DANGER.” (emphasis added) (citations in Exhibit 6).

Defendants did not warn Mr. Porter of the dangerous condition. See Exhibit 3, Rule 30 (b)(6) of Waters Incorporated of Charlotte, p. 52, l. 16 to p. 53, l. 17 (“Q: You testified earlier that you told Mr. Porter to be very careful with the doors, do not raise real fast because they could come off the track. Were you warning him that the thing spiral, is that why he had to be careful? A: No, it just meant that sometimes it could pop off the sides, you know, like if this was coming down and you let it go up real fast, sometimes it might pop off the track as its going up. ….. Q: So you weren’t warning Mr. Porter about a dangerous condition with that ? A: No, sir.”). See also Exhibit 2, Ryan Porter affidavit paragraph 8 (“I was not warned that the door at issue could spiral around the axle or that the door at issue could go up past the door stop cement block and around its axle.”). The above evidence when viewed in the light most favorable to Mr. Porter is sufficient for a jury to find that Mr.

Porter was not warned of the dangerous condition.

Similarly, the next chart shows that Defendants also breached their duty to warn Mr. Porter about

the latent danger of un-spiraling garage doors on their premises.

JUDGE’S HANDBOOK JURY CHARGE EVIDENCE FROM THIS CASE

“THE DEFENDANT HAS THE DUTY TO WARN AN INVITEE OF HIDDEN DANGERS OF WHICH THE DEFENDANT KNOWS OR SHOULD KNOW.” (emphasis added) (citations in Exhibit 6).

Defendants did not warn Mr. Porter of the dangerous condition and admit that there was no way for Mr. Porter to know about the dangerous condition. See Exhibit 3, Rule 30 (b)(6) of Waters Incorporated of Charlotte, p. 52, l. 16 to p. 53, l. 17 (“Q: So you weren’t warning Mr. Porter about a dangerous condition with that ? A: No, sir. … Q: So he would have had no way of knowing of any kind of danger? A: No, sir.”).20

“THE DEFENDANT HAS THE DUTY TO WARN AN INVITEE OF HIDDEN DANGERS OF WHICH THE DEFENDANT KNOWS OR SHOULD KNOW.” (emphasis added) (citations in Exhibit 6).

Defendant knew or should have known about the danger because the doors had un-spiraled in the past and occurred several times over a ten year period. See Exhibit 10, Betty Lloyd deposition, p. 18, ll. 9-15, 18, 20-22, 24; p. 19, ll. 1-2, 4, 23-25, p. 20, l.1. Additionally, Defendants’ manager had experienced the same phenomena when opening the doors. See Exhibit 10, Betty Lloyd deposition, p. 35, ll. 1-13.

20 This testimony is also sufficient to overcome any argument that the propensity of the garage door to uncoil around at Mr. Porter was an open and obvious condition. See Defendants’ Memorandum, p. 18. Defendants own manager admits that Mr. Porter “would have had no way of knowing of any kind of danger.” Additionally, Mr. Porter did not know about the danger. See Exhibit 2, Affidavit of Ryan Porter, ¶ 11 (“Had I been warned or known that these doors could spiral around the axle, I would have had my employer rent storage space from a different facility not only out of a concern for my own welfare but because I was responsible for the well-being of my crew.”). More importantly, Defendants in their Memorandum point to no evidence supporting an inference that Mr. Porter knew the door could violently uncoil or that the possibility of the door violently uncoiling was open and obvious. See pages 18-20 of Defendants’ Memorandum which is devoid of citation to the evidence in this case.

Defendants’ knowledge of the danger of Defendants’ doors going around the axle can also be shown by the fact that Defendants had installed door stoppers on other doors at the facility. See Exhibit 1, Verified Complaint paragraph 13 and Exhibit 2; See also Exhibit 4, Roger Davis deposition, p. 54, l. 18 to p. 55, l. 8 with Exhibit 5 and 93; And Exhibit 8, Dr. Durig Report, p. 5. There is no reason to have door stoppers on the other doors unless the Defendants knew the doors at the facility have a propensity to go around the axle.

(2) DEFENDANTS’ BREACHES WERE THE PROXIMATE CAUSE OF MR. PORTER’S INJURIES

Defendants’ breached duties owed to Mr. Porter including failing to eliminate a known

hazard and/or failing warn of a known hazard. These breaches resulted in Mr. Porter being

violently struck in the face by an over one hundred pound garage door and were the proximate

cause of his significant back/neck injuries. The following chart shows the evidence in this case is

sufficient to prove proximate cause.

JUDGE’S HANDBOOK JURY CHARGE EVIDENCE FROM THIS CASE

FINALLY, THE PLAINTIFF MUST PROVE THAT THE DEFENDANT’S NEGLIGENCE PROXIMATELY CAUSED THE PLAINTIFF’S INJURY. PROXIMATE CAUSE IS SOMETHING THAT PRODUCES A NATURAL CHAIN OF EVENTS WHICH IN THE END, BRINGS ABOUT THE INJURY. IT IS THE DIRECT CAUSE OF THE INJURY. TO PROVE THAT THE DEFENDANT’S NEGLIGENCE CAUSED THE PLAINTIFF’S INJURY, THE PLAINTIFF MUST FIRST PROVE CAUSATION IN FACT. THIS IS PROVEN BY SHOWING

In this case, Ryan Porter will testify that he had severe back/neck problems starting and resulting after violently being hit by the garage door. See Exhibit 2, Ryan Porter Affidavit paragraphs 12 and13 (“Prior to December 18, 2008, I had never experienced any symptoms similar to those that I have received treatment for and developed the day that I was struck by the garage door (“symptoms at issue”). “The first time I ever experienced the symptoms at issue was approximately forty five minutes after being violently struck by the garage door at issue.”).

THAT THE INJURY WOULD NOT HAVE OCCURRED BUT FOR THE DEFENDANT’S NEGLIGENCE. (emphasis added) (citations in Exhibit 6).

Furthermore, Mr. Porter went to the emergency room complaining of pain and numbness shortly after being struck by the garage door. The emergency room physician diagnosed him with cervical radiculopathy, a dysfunction of the spinal nerve root which is consistent with a patient being involved in a trauma. The emergency room physician testified that garage door trauma at issue is consistent with this diagnosis. See Exhibit 12, Anna Shalkham depo, p. 5, l. 24 to p. 7, l. 1; p. 10, l. 12 to p. 11, l. 14; and p. 29, l. 2 to p. 30, l. 6. (“Q. If you can help us walk through them. Are you familiar with these records? A. I am. Q. And what patient do they pertain to? A. This is Ryan Porter. Q. And what date was he seen? A. 12/18/2008. Q. And what were the symptoms that Mr. Porter presented with? A. Sure. At that time he -- Q. Go ahead. A. -- he complained of neck pain. It looks like also back pain. He had some numbness to his lateral left hand. And then I think some pain to his nose, actually his -- actually more his physical exam, but pain and swelling to his nasal bridge. Q. And what time of day did Mr. Porter come in? A. It looks like probably early afternoon, around 1 p.m., I think my physical exam is 13:45. Q. And can you tell from looking at his record, what the diagnoses were? A. Sure. I think ultimately he was diagnosed with a nasal fracture, neck spasm, neck pain, and cervical radiculopathy. *** Q. And the cervical radi -- A. Radiculopathy, you're close. Q. -- can you explain what type of diagnosis that would entail? A. Sure. So in a general sense,

radiculopathy just means dysfunction of a spinal nerve root. In this case, it's cervical, which means it's up in his neck, in his cervical spine. Typically in -- this gentleman is fairly young, so typically in a young patient, particularly acute kind of trauma situations, it is either from a disc herniation or some kind of issue where the nerve root is impinged and it comes up. There's an area called a foramen, and essentially that's just the area between the vertebrae where through the spinal nerve root exits. So if there's some kind of trauma through to that area that causes swelling or edema, then you're going to have these kind of symptoms with the numbness to the extremity in addition to the neck pain. *** Q. Doctor, if you can, can you read what is written on Exhibit 44 as the history of present illness? A. Yes. It says: 25-year-old male, presents with neck pain, onset acute, additional symptoms or pertinent history also involve back pain. Furthermore, the patient/family denies loss of consciousness, loc, also with numbness to lateral left hand, started after getting hit in face with metal door on a mini-storage unit. And then it says, DT, which is tetanus status, up-to-date. Q. And these are your notes from when you treated Mr. Porter? A. They are. Q. And earlier you testified as to trauma being one of the things that can cause cervical radiculopathy? A. Uh-huh. Q. Is this description consistent with the kind of trauma to a reasonable degree of medical certainty that can cause cervical radiculopathy? A. I mean, certainly if he was hit -- and, you know, it doesn't clarify the mechanism, I don't know if it was like a flexion or a hyperextension, I don't know in what way he was hit. But, I mean, certainly a

hyperextension or flexion kind of injury could make, you know, a cervical radiculopathy, could cause a cervical radiculopathy.”). Certainly, a jury could conclude on the above testimony alone with the close timing of the garage door incident, the onset of the neck/back problems, and the need for medical care that the +100 lb. garage door striking Mr. Porter was the cause of Plaintiff’s injuries. Notably, Mr. Porter’s neurosurgeon testified that a patient’s recollection of the onset of symptoms is critical in determining causation. See Exhibit 11, Sumit Das Deposition, p. 66, l. 14 to p. 67, l. 1. (“Q: And you mentioned before that causality is dependant on the patient’s recollection, it – is it—What do you mean by that? A: Meaning there’s no way to prove absolutely anything given the – given the MRI findings. So it is—its based upon the patient’s recollections and the activities that were performed during that time. Q: And by the patient’s recollection are you referring to when the patient first started experiencing symptoms? A: By the history that he gave us.”) Mr. Porter’s neurosurgeon also opined that Mr. Porter’s symptoms started after being hit by the garage door. See Exhibit 11, Sumit Das Deposition, p. 47, l. 20 to p. 48, l. 7. Q: And, again, going back to the day—the date of the incident, did you find it significant that Mr. Porter went to the ER immediately after reporting being struck by the garage door? … A: Yes. Q: And the patient’s reporting of those symptoms, is that consistent with that being

the time of the onset of the problems that were subsequently treated by your office? … A: Based upon the history he gave me, yes.”). The neurosurgeon further testified that the garage door incident was the cause of Mr. Porter’s back problems. See Exhibit 11, Sumit Das deposition, p. 51, ll. 1-13. “Q: What opinion did – do you have as to the cause of his symptoms knowing that he went to the ER reporting of neck and arm pains the day he was hit by the garage door? … A: From my statements and my – and my documentation I believe that that was either the cause of the disc herniation21 or at least aggravation of the disc herniation. Q: And that’s your belief to a reasonable degree of medical certainty. … A: As per my records, correct.”). In summary, Mr. Porter, the ER physician, and Mr. Porter’s neurosurgeon all offer testimony sufficient to establish the causal link between garage door striking Mr. Porter and Mr. Porter’s back/neck problems.

FINALLY, THE PLAINTIFF MUST PROVE THAT THE DEFENDANT’S NEGLIGENCE PROXIMATELY CAUSED THE PLAINTIFF’S INJURY. PROXIMATE CAUSE IS SOMETHING THAT PRODUCES A NATURAL CHAIN OF EVENTS WHICH IN THE END, BRINGS ABOUT THE INJURY. IT IS THE DIRECT CAUSE OF THE INJURY. TO PROVE THAT THE DEFENDANT’S

As discussed above, Defendants failed to correct a dangerous condition and that dangerous condition re-occurred. If Defendants had eliminated the hazardous condition of the door uncoiling, the uncoiling would not have reoccurred and the garage door would not have struck Mr. Porter. In addition (also discussed above),

21 Dr. Das testified that 60% of the population has disc herniation that is asymptomatic. See Exhibit 11, Sumit Das deposition, p. 13, ll. 7-17. Disc herniation can become symptomatic after a trauma. See Exhibit 11, Sumit Das deposition, p. 11, ll. 13- 22. In this case, the trauma is Mr. Porter being struck by the one hundred pound garage door.

NEGLIGENCE CAUSED THE PLAINTIFF’S INJURY, THE PLAINTIFF MUST FIRST PROVE CAUSATION IN FACT. THIS IS PROVEN BY SHOWING THAT THE INJURY WOULD NOT HAVE OCCURRED BUT FOR THE DEFENDANT’S NEGLIGENCE (emphasis added) (citations in Exhibit 6).

Defendants failed to warn Mr. Porter about the garage door’s propensity to uncoil. If Mr. Porter had been properly warned, this incident would not have happened. See Exhibit 2, Ryan Porter Affidavit, ¶ 11 (“Had I been warned or known that these doors could spiral around the axle, I would have had my employer rent storage space from a different facility not only out of a concern for my own welfare but because I was responsible for the well being of my crew.”). Thus, both of Defendants’ breaches (failing to correct and failing to warn) resulted in Mr. Porter being struck by the +100 lb. garage door. Furthermore, Defendants agents offering to pay Mr. Porter’s medical bills shortly after being hit by the garage door is an admission that their mistakes led to Mr. Porter’s injuries. See Exhibit 9, Ryan Porter deposition, p. 98, ll. 9-14 (“Ms. Betty had come out at that time, and she said, are you sure you’re okay? I said, I’m going to go get checked out. She goes, if there’s any hospital bills, make sure you get them to us.”) and Exhibit 2, Ryan Porter Affidavit, ¶ 16 (“After I was struck with the garage door, the onsite manager told me that if I end up going to the hospital or if there are any medical bills that her company will take care of them.”).

THE PLAINTIFF MUST ALSO PROVE LEGAL CAUSE. LEGAL CAUSE IS PROVEN BY SHOWING THAT THE INJURY WAS FORESEEABLE. THIS MEANS THAT THE INJURY OCCURRED AS A NATURAL AND PROBABLE CONSEQUENCE OF THE DEFENDANT’S NEGLIGENCE. THE PLAINTIFF MUST PROVE THAT SOME INJURY FROM THE DEFENDANT’S NEGLIGENCE WAS FORESEEABLE,

Defendants knew that if the doors didn’t stop and went around that axle that people could get hurt. See Exhibit 3, Rule 30(b)(6) deposition of Waters Incorporated of Charlotte, p. 29, ll. 5-13 (“Q: Would it be foreseeable without the doorstop—if something happened to that doorstop, that someone could get hurt? … A: Possibly, it could be, yes, sir.”). Thus, there is sufficient evidence for the jury to

BUT DOES NOT HAVE TO PROVE THAT THE PARTICULAR INJURY THAT OCCURRED WAS FORESEEABLE. HOWEVER, THE DEFENDANT CANNOT BE HELD RESPONSIBLE FOR THINGS WHICH COULD NOT BE EXPECTED TO HAPPEN. (emphasis added) (citations in Exhibit 6).

find that the injury was foreseeable.

The Wooden Pallet Incident Did Not Break the Causal Link for Proximate Cause

Defendants wrongly argue that the fact that Mr. Porter experienced pain while attempting to

lift a pallet the day after being struck by the garage door (and the day after going to the emergency

room) prevents Mr. Porter from being able to prove causation. This argument misses the point.

First, Mr. Porter’s neurosurgeon testified that the pain experienced by Mr. Porter when lifting the

pallet is consistent with someone who already has an aggravated disc herniation;

Q: If Mr. Porter suffered an aggravation of a herniated disc after being struck by a garage door, when he went to lift that pallet the next day, would he fell [sic- feel] pain?

A: Sure. Q: And would that – would—would that pain be consistent with the pain that was

described in— A: It can— Q: Exhibit 87 (deposition excerpt describing Mr. Porter trying to lift pallet) A: It can be.22

Thus, a jury can easily conclude that Mr. Porter’s back/neck problems started when he was hit by

the garage door and his pain the next day when lifting the pallet is simply a symptom of Mr. Porter

having injured his back the prior day.

Second, Mr. Porter will testify that his back injuries resulted and started after he was hit by

the garage door. Mr. Porter’s Affidavit, ¶¶ 12-14 provides:

22 Exhibit 11, Sumit Das deposition, p. 65, l. 23 to p. 66, l. 8.

12. Prior to December 18, 2008, I had never experienced any symptoms similar to those that I have received for and developed the day that I was struck by the garage door (“symptoms at issue”). 13. The first time I ever experienced the symptoms at issue was approximately forty five minutes after being violently struck by the garage door at issue. 14. Prior to being struck in the face and injured by the garage door, I regularly lifted wooden pallets and cleaned up trash and had never experienced any symptoms similar to what I experienced after my back was injured by the garage door.23

Similarly, the emergency room physician who saw Mr. Porter the day before lifting the wooden

pallet diagnosed him with a dysfunction of the spinal nerve root consistent with someone

experiencing a trauma such as getting hit by a one hundred plus pound garage door.24 This

testimony alone is sufficient for the jury to determine that garage door was the proximate cause of

Mr. Porter’s injuries. Certainly, Defendants are free to argue the pallet caused the injuries but this is

a question of fact for the jury to determine. Notably, the temporal relationship between the onset of

the symptoms and the garage door striking Mr. Porter is indicative of the garage door being the

cause of the injuries.

Third, the cases of Morehouse v. Louisville Ladder Group LLC, 2004 U.S. Dist. LEXIS

21766 (D.S.C. June 28, 2004)25 and Fowler v. Coastal Coca-Cola Bottling Co., Inc., 252 S.C. 579, 167

S.E.2d 572 (SC 1969) both cited by the Defendant are distinguishable from this case. In both

Morehouse and Fowler there was no admissible testimony that the jury could rely upon to establish

causation. See Morehouse, 2004 U.S. Dist. LEXIS 21766 (D.S.C. June 28, 2004) (excluding expert

testimony and noting that the Plaintiff “suffered substantial memory loss” and could not testify as to

“any of the details of his accident.”); See also Fowler v. Coastal Coca-Cola Bottling Co., 252 S.C. 579,

584, 167 S.E.2d 572, 575 (S.C. 1969) (“There was no testimony that the respondent's illness could 23 Exhibit 2, Affidavit of Ryan Porter. 24 Exhibit 12, Anna Shalkham depo, p. 5, l. 24 to p. 7, l. 1; p. 10, l. 12 to p. 11, l. 14; and p. 29, l. 2 to p. 30, l. 6.

25 A copy of Morehouse opinion is attached as Exhibit 14.

be attributed to the ingestion of a Coca-Cola containing yeast.”). In this case, Mr. Porter, Dr.

Shalkham, and Dr. Das all testify that the garage door caused Mr. Porter’s back/neck injuries. This

is not a case where there is no testimony that a jury can rely upon to establish causation.

Accordingly, Defendants arguments as to the Morehouse and the Fowler cases are misplaced.

At a minimum, the evidence is sufficient for the jury to conclude that there were two

concurring causes of Mr. Porter’s back problems which would still justify a verdict in favor of Mr.

Porter. See jury charge below and Mr. Porter’s neurosurgeon’s testimony.

JUDGE’S HANDBOOK JURY CHARGE EVIDENCE FROM THIS CASE

PROXIMATE CAUSE DOES NOT MEAN THE ONLY CAUSE. THE DEFENDANT’S ACT CAN BE A PROXIMATE CAUSE OF THE PLAINTIFF’S INJURY IF IT WAS AT LEAST ONE OF THE DIRECT, CONCURRING CAUSES OF THE INJURY. (emphasis added) (citations in Exhibit 6).

Contrary to Defendants arguments, Mr. Porter’s neurosurgeon does not rule out the garage door as the cause of Mr. Porter’s back/neck problems and the neurosurgeon’s testimony is sufficient for a jury finding that the garage door was at least a concurring cause of Mr. Porter’s injuries. See Exhibit 11, Sumit Das deposition, p. 54, l. 15 to p. 55, l. 5. (“Q: Doctor Das, it – you just stated a minute ago that there were two relevant occurrences that could possibly have lead to the treatment that you performed; is that correct? A: Correct. Q: Why is it not the first instance that occurs that leads to the patient reporting symptoms and seeking medical care not the more relevant of the two? A: Because how do you know that the second incident didn’t cause more additional symptoms that required treatment? Q: So the—the first incidence [sic- incident] caused the need for some treatment but you can’t rule out the extent of what that

treatment would be— A: Correct.”).26

The Defendants’ Arguments as to Misuse Do Not Break the Causal Chain for Proximate Cause

Defendants’ arguments as to misuse also miss the point. Defendants’ premises liability

expert opines that Defendants should have anticipated and guarded against foreseeable misuse.

Q: Is a part of safety engineering to guard against foreseeable misuse? A: Yes, I believe that that is a consideration. Q: And is that important? A: I think so, yes. Q: And why is that? A: Well the designer I think of a product has a duty to anticipate how the product

might be used, or misused in this case, to try to eliminate the hazards that might result from that use or misuse. Q: Do you agree that a commercial premises owner should guard against foreseeable misuse? … A: To the extent that they can, yes.27

Thus, it is undisputed that the fact of alleged misuse alone does not relieve Defendants of their duty

to invitees such as Mr. Porter.

In this case, there is an inexpensive safety device that would have been easy to add, made the

door safer, and prevented the re-occurrence of the doors un-spiraling. Defendants’ expert testified

as follows: 26 The wooden pallet incident could also be construed by a jury as foreseeable intervening cause that exasperated the existing injury caused by the original tort. Foreseeable intervening causes do not relieve the original tortfeasor of responsibility. See Small v. Pioneer Mach., 329 S.C. 448, 467, 494 S.E.2d 85 (S.C. Ct. App. 1997) citing Dixon v. Besco Eng'g, Inc., 320 S.C. 174, 463 S.E.2d 636 (Ct. App. 1995) (“for intervening act to break causal link, intervening act must be unforeseeable; whether intervening act breaks causal connection is question for fact finder which will not be disturbed on appeal unless found to be without evidence which reasonably supports finding”). “For an intervening force to be a superseding cause that relieves an actor from liability, the intervening cause must be a cause that could not have been reasonably foreseen or anticipated.” Collins & Sons Fine Jewelry, Inc. v. Carolina Safety Sys., Inc., 296 S.C. 219, 371 S.E.2d 539 (Ct. App. 1988). The fact that Mr. Porter, a diligent worker, would attempt to return to work after being violently struck by the garage door is certainly foreseeable. In any event questions as to proximate cause are fact dependant and do not warrant the drastic remedy of summary judgment. 27Exhibit 4, Roger Davis, deposition, p. 24, l. 22 to p. 25, l. 10.

Q: In your opinion, would it be easy to add a doorstop similar to what’s shown in number five on the door at issue? … A: I think it would be, yeah it would be easy to add a stop. I initially thought that there would be some interference between the curtain and the stop, but I believe that it’s possible to provide such a stop, what I call an internal stop. Q: And the addition of an internal stop is relatively inexpensive? A: Yeah, I would think so.28

***

Q: Going back and looking at Exhibit 93, door design including the door stopper similar to that labeled number 5. A: Yes. Q: Is that a safer design? … A: It may well be…29

***

Q: But isn’t it true that a door stop that contains an internal door stopper in addition to the external stopper is a safer design? A: I believe it would be a better design for this door to have included internal stops.30

Defendants’ expert also admits that a doorstop would prevent un-spiraling during forceful

operation.

Q: Would a doorstop similar to what’s shown on 93 prevent a door from unspiraling during a forceful operation? … A: Your question is would it prevent unspiraling during forceful operation? Q: Yes. A: Yeah, I think it would have prevented unspiraling during the kind of operation that I subjected it to. Q: And you’re talking about the testing that’s on the DVD that we marked as 97? A: Yes, correct. I believe it would have withstood that kind of operation.31

28Exhibit 4, Roger Davis, deposition, p. 55, l. 11 to 22.

29Exhibit 4, Roger Davis, deposition, p. 71, ll. 10-16

30 Exhibit 4, Roger Davis, deposition, p. 72, ll. 15-20

31 Exhibit 4, Roger Davis deposition, p. 83, ll. 5-18

Mr. Porter’s mechanical engineering expert also addresses misuse and notes that a door

stopper would have eliminated the dangerous condition that injured Mr. Porter.

Q: So it is your position that the door should be able to handle an unlimited amount of force? A: If you’ve got stops in there, yes, it will. Q: So if you have stops, the door will be able to handle an limited amount of force going upward and not going all the way around? A: Within reason. Unlimited what a person could give it. Now, I could get a hyrdraulic jack out there and go beyond that. So with what a normal human would use, yes.32

***

Q: Does the amount of force he used when opening the door make a difference in your opinion as to what caused the door to go around and strike him in the chest and face? A: No, because what caused it to go around is the fact that there’s not a stop on there to prevent it. … Q: Do you believe that none of Mr. Porter’s actions caused the door to strike him in the chest and face? A: They’d have to because he’s the one that’s providing the force to lift the door and he’s the one that’s walking into it and when it came around and hit him in that position. But again if you look at the design, if we got a doorstop that prevented this from going around then his actions wouldn’t, if it was properly maintained.33

As shown by the above testimony, Defendants had a duty to guard against foreseeable misuse, there

was an inexpensive safety device that Defendants failed to implement that would have guarded

against misuse and prevented Mr. Porter’s injuries. Thus, the Defendants’ arguments as to misuse

do not relieve Defendants from responsibility.

Significantly, the determination of misuse and whether misuse was foreseeable are questions

of fact for the jury. Mr. Porter at the time of the incident weighed 140 pounds.34 Mr. Porter is right

32 Exhibit 5, Bryan Durig deposition, p. 77, l. 18 to p. 78, l. 4. 33 Exhibit 5, Bryan Durig deposition, p. 102, l. 15 to p. 103, l. 10

34 Exhibit 2, Affidavit of Ryan Porter, ¶ 5.

handed and opened the door with only his left hand.35 Mr. Porter was not a weight lifter.36

Certainly, the maximum amount of force that Mr. Porter could apply to lift a +100 pound garage

door is not an unforeseeable amount of force. Additionally, Mr. Porter will testify that he did not

use excessive force to open the door. See Exhibit 2, ¶ 9 (“I did not open the door in a violent

manner or with excessive force. I was not angry or agitated at the time I opened the door and did

not use an abnormal amount of force.”).37 Accordingly, the question of whether Mr. Porter misused

the door or whether that alleged misuse broke the causal chain for proximate cause are questions of

fact for the jury. These questions are not appropriate for a summary judgment determination

because the evidence when taken in the light most favorable to Mr. Porter is sufficient for the jury to

determine that Mr. Porter did not misuse the door.

(3) THERE EXIST SUFFICIENT EVIDENCE TO WARRANT A PUNITIVE DAMAGES AWARD

The evidence in this case when construed in the light most favorable to Mr. Porter is also

sufficient for a jury to award punitive damages. “In order to receive an award of punitive damages,

the plaintiff has the burden of proving by clear and convincing evidence the defendant's misconduct

was willful, wanton, or in reckless disregard of the plaintiff's rights." Hundley v. Rite Aid of South

Carolina, Inc., 339 S.C. 285, 311, 529 S.E.2d 45, 59 (S.C. Ct. App. 2000). Defendants conduct

shows a conscious indifference for the safety of others. Defendants knew of the propensity for

garage doors at the facility to uncoil.38 Defendants knew that if doors did not stop as designed that

35 Exhibit 2, Affidavit of Ryan Porter, ¶ 6. 36 Exhibit 2, Affidavit of Ryan Porter, ¶ 7. 37 Exhibit 2, Affidavit of Ryan Porter, ¶ 9. 38 The doors had un-spiraled in the past and occurred several times over a ten year period. See Exhibit 10, Betty Lloyd deposition, p. 18, ll. 9-15, 18, 20-22, 24; p. 19, ll. 1-2, 4, 23-25, p. 20, l.1. Defendants’ manager had experienced the same phenomena when opening the doors. See Exhibit 10, Betty Lloyd

people could get hurt.39 Defendants chose to put safety devices on some doors and recklessly chose

not to put safety devices on other doors.40 Plaintiff was injured by a known phenomena that

Defendants had experienced in the past and chose not to guard against or warn against.

Furthermore, Defendants after initially acknowledging responsibility for Mr. Porter’s injuries

attempted a cover-up. Defendant originally acknowledged their responsibility for the garage door by

offering to pay Mr. Porter’s medical bills.41 Despite this admission, after this lawsuit was initiated

Defendants lied and tried to argue that the door never un-spiraled.42 It was only after the witness

Junior Pereira was found that Defendants expert changed his opinion from “if you raised the door

forcefully it would not pass though the gap” to now that the door will pass through the gap with an deposition, p. 35, ll. 1-13. Defendants’ knowledge of the danger of Defendants’ doors going around the axle can also be shown by the fact that Defendants had installed door stoppers on other doors at the facility. See Exhibit 1, Verified Complaint paragraph 13 and Exhibit 2; See also Exhibit 4, Roger Davis deposition, p. 54, l. 18 to p. 55, l. 8 with Exhibit 93; And Exhibit 8, Dr. Durig Report, p. 5.

39 See Exhibit 3, Rule 30(b)(6) deposition of Waters Incorporated of Charlotte, p. 29, ll. 5-13

(“Q: Would it be foreseeable without the doorstop—if something happened to that doorstop, that someone could get hurt?

…

A: Possibly, it could be, yes, sir.”). 40 See Exhibit 1, Verified Complaint paragraph 13 and Exhibit 2; See also Exhibit 4, Roger Davis deposition, p. 54, l. 18 to p. 55, l. 8 with Exhibit 93; And Exhibit 8, Dr. Durig Report, p. 5. 41 See Exhibit 9, Ryan Porter deposition, p. 98, ll. 9-14 (“Ms. Betty had come out at that time, and she said, are you sure you’re okay? I said, I’m going to go get checked out. She goes, if there’s any hospital bills, make sure you get them to us.”) and Exhibit 2, Ryan Porter Affidavit, ¶ 16 (“After I was struck with the garage door, the onsite manager told me that if I end up going to the hospital or if there are any medical bills that her company will take care of them.”).

42 Exhibit 3, Rule 30(b)(6) Deposition of Waters, p. 8, l. 18 to p. 9, l. 18 (“Yes, sir, when he told me about it, I went directly in there with him and I checked the door and there was nothing wrong with it.”).

“extremely forceful operation of the door.”43 Also, Defendants potentially forged Mr. Porter’s

employer’s name on a contract to attempt to shift the burden for paying his damages to Mr. Porter’s

employer.44 This cover-up adds credibility to a finding that Defendants’ pre-incident approach to

garage door maintenance reflected a conscious indifference to the safety of others. See Hundley v.

Rite Aid of South Carolina, Inc., 339 S.C. 285, 316, 529 S.E.2d 45, 62 (S.C. Ct. App. 2000) (noting

significance of cover-up in upholding an award of punitive damages).45 It also indicates that a

substantial penalty may be necessary in order to deter future similar conduct. Id.

The question of whether punitive damages should be awarded in this case should be left for

the jury. A jury, when taking the evidence in the light most favorable to Mr. Porter, could easily

conclude that Defendants conduct including not fixing the garage doors, not warning Mr. Porter

despite knowledge of the propensity for their garage doors to uncoil and then subsequently

attempting a cover up demonstrates a conscious disregard for the safety of others warranting the

imposition of punitive damages.

CONCLUSION46

43 Exhibit 4, Davis Deposition, p. 57, ll. 3-14 and p. 59, l. 10 to p. 60, l. 16. 44See Exhibit 13, Deposition of Joseph Welch, p. 28, l. 20 to p. 29, l. 4 and p. 35, ll. 2-9 (testifiying that signature on indemnity agreement is not his and that he would have stricken such a provision). 45 The Hundley opinion provides in part: “The court found that Rite Aid's conduct throughout the litigation was abusive and obstructionist, concluding that Rite Aid's misconduct was intentional and in bad faith. The fact of the missing records and the inconsistent answers to interrogatories also formed a part of the Hundleys' argument to the jury, asserting that Rite Aid had engaged in a cover-up. In assessing the defendant's notice that its actions are so objectionable as to give rise to substantial punitive damages, we think this conduct indirectly adds credibility to the argument that Rite Aid's pre-incident approach to quality assurance reflected a conscious indifference to the safety of others. It also indicates that a substantial penalty may be necessary in order to deter future similar conduct.” (emphasis added). 46 Attached as Exhibit 15 is a concise statement of the material facts in dispute.

For the foregoing reasons, there is ample evidence upon which a jury could find in favor of

the Plaintiff and thus the drastic remedy of Summary Judgment is not appropriate in this case.

Accordingly, Defendants’ motion for summary judgment should be denied.

___s/Brady R. Thomas________________ Terry E. Richardson, Jr. (Fed Bar # 3457) Brady R. Thomas (Fed. Bar # 9623) RICHARDSON, PATRICK, WESTBROOK & BRICKMAN, LLC P.O. Box 1368 1730 Jackson Street Barnwell, SC 29812 Telephone No. (803) 541-7850 Facsimile No. (803) 541-9625

ATTORNEYS FOR THE PLAINTIFF November 14, 2011 Barnwell, South Carolina

Trial: Voir Dire

Jack McKenzie

Personal Injury Essentials

Friday, August 21, 2020

By: Jack McKenzie

Trial: Voir Dire

Voir Dire Questions The scope of voir dire and the manner in which it is conducted are generally left

to the sound discretion of the trial court. A trial court also has broad discretion in conducting the voir dire of the jury and particularly in phrasing the questions to be asked.

See State v. Bixby, 388 S.C. 528, 698 S.E.2d 572 (2010). As a general rule, the trial court is not required to ask all voir dire questions

submitted by the attorneys. See S.C. Code Ann. § 14-7-1020; Wall v. Keels, 331 S.C. 310, 501 S.E.2d 754

(Ct. App. 1998). If a party is dissatisfied with a trial judge's examination of a prospective juror

during voir dire, the party should move for permission to ask additional questions.

See Rule 47, SCRCPS.C. R. Civ. P. 47(a); Creighton v. Coligny Plaza Ltd. Partnership, 334 S.C. 96, 512 S.E.2d 510 (Ct. App. 1998), reh'g denied, (Apr. 10, 1999).

*See handout of sample personal injury voir dire questions

By: Jack McKenzie

Sample Personal Injury Voir Dire Questions

1. Is any member of the jury panel not a registered voter?

2. Did any juror who is a registered voter fail to vote in the most recent national, state or local elections? If so give the reasons for your failure to vote.

3. Has any member of the jury panel ever been a party to a lawsuit? a. If so, were you the Plaintiff or Defendant? b. What was the general nature of the lawsuit? c. Was the lawsuit resolved satisfactorily or unsatisfactorily to you?

4. Is any member of the jury panel familiar or acquainted either socially, professionally or otherwise with the attorney for the Plaintiff/Defendant or any members of his or her law firm?

5. Is any juror or any member of your immediate family been represented in a legal matter by the attorney for the Plaintiff/Defendant or any member of his or her law firm?

6. Has any member of the jury panel ever filed for personal or business bankruptcy?

7. Is any member of the jury panel a member in or involved with any social, political, religious or fraternal organization? a. If so, state the name of the organization and the nature of your

involvement or activity.

8. Would each member of the jury panel give the amount of formal education which he or she has completed. If any member of the jury panel has education (trade school, tech school or college) beyond the high school level, give the type of additional education received and the principal area of study.

9. Has any member of the jury panel or any member of the jmy panel's immediate family ever been convicted of a criminal offense? This would not include minor traffic violations. If so would the juror approach the bench and provide the pertinent information requested giving the nature of the criminal conviction.

10. Has any member of the jury panel or any member of their immediate family ever been personally injured in an automobile accident? a. If so have the injuries resolved? b. Was any personal injmy claim made for personal injuries received in the

automobile accident? c. If a claim was made for personal injuries, was the individual represented

by an attorney?

11. Has any member of the jury panel or any member of the juror's immediate family ever been treated by a chiropractor? If so give the approximate length of treatment and whether the condition resolved satisfactorily.

12. Has any member of the jury panel ever served in the military? If so give the following information: a. Branch of service? b. Length of service? c. Honorable discharge?

13. Has any member of the jury panel previously served on a jury? If so give the following information: a. Approximate date of service? b. Criminal or civil jury (type of case)? c. Verdict reached in the case? d. Positive or negative experience as a juror?

14. Is the juror a home renter or home owner?

15. Does any member of the jury panel have any physical or mental condition or impairment which would interfere with jury service? If so, please approach the bench and provide details of such condition.

16. Has any member of the jmy panel or any member of the juror's immediate family ever been treated by or a patient of Dr. ___ _

17. Is any member of the jmy panel acquainted with any of the following individuals who may testify as a witness in this case? If so state your relationship with the witness or the nature of your acquaintance. a. b. c. d. e.

18. Is there any member of the jury panel who feels that the race or socioeconomic status of a Plaintiff or Defendant might prevent the juror from reaching a fair verdict?

19. Is there any member of the jury panel who is upset or annoyed at having to serve as ajuror?

S.C. Code Ann. § 14-7-1020

This document is current through all Legislation enacted in the 2013 Session The most current annotation is dated September 12, 2013

South Carolina Code of Laws Annotated > TITLE 14. COURTS > CHAPTER 7. JURIES AND JURORS IN

CIRCUIT COURTS > ARTICLE 9. OBJECTIONS AND CHALLENGES TO JURORS.· IMPANELLING OF JURIES

I§ 14·7·1020. Jurors may be examined by court; if juror is not indifferent, he shall be set aside.

The court shall, on motion of either party in the suit, examine on oath any person who is called as a juror to know whether he is related to either party, has any interest in the cause, has expressed or formed any opinion, or is sensible of any bias or prejudice therein, and the party objecting to the juror may introduce any other competent evidence in support of the objection. If it appears to the court that the juror is not indifferent in the cause, he must be placed aside as to the trial of that cause and another must be called.

History

1962 Code§ 38-202; 1952 Code§ 38-202; 1942 Code§ 637; 1932 Code§ 637; Civ. P. '22 § 577; Civ. C.' 12 § 4045: Civ. C. '02 § 2944; G. S. 2261; R. S. 2403; 1797 (5) 358; 1986 Act No. 340, § 3, eff March 10, 1986.

Rule 47, SCRCP

This document reflects changes received through December 1, 2013

South Carolina Court Rules > SOUTH CAROLINA RULES OF CIVIL PROCEDURE > VI. TRIALS

I RULE 47. JURORS

(a) Examination of Jurors. The court may permit the parties or their attorneys to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event, the court shall permit the parties or their attorneys to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions submitted by the parties or their attorneys as it deems proper.

(b) Alternate Jurors. The court may direct that not more than six jurors in addition to the regular petit jury panel be called and impanelled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath, and shall have the same functions, powers, facilities, and privileges as the regular jurors. An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict. Each side is entitled to 1 peremptory challenge in addition to those otherwise allowed by law if 1 or 2 alternate jurors are to be impanelled, 2 peremptory challenges if 3 or 4 alternate jurors are to be impanelled, and 3 peremptory challenges if 5 or 6 alternate jurors are to be impanelled. The additional peremptory challenges may be used only against an alternate juror and the other peremptory challenges allowed by law shall not be used against an alternate juror.

(c) Separation of Jury. If it appears that the jury deliberations may extend into the night, the court may order that the jury be taken to suitable sleeping quarters for the night; and on the following morning they shall resume their deliberations. The jury shall be kept together and separate from the public, and as far as practicable during all times shall be under the surveillance of the bailiffs. Any juror or jurors may be separated for the night from any other juror or jurors. There shall be no communication with any member of the jury by any third person, and the jury shall be fully protected from any outside influence.

Annotations

Notes

These Rules47(a) and (b) are substantially the present Federal Rule. They represent no material change from present State practice, and are consistent with Code§§ 14-7-390, 14-7-1020, 14-7-1120 and 14-7-1340. Rule47(c) is added to preserve Circuit Court Rule 80.

CODE OF LAWS OF SOUTH CAROLINA ANNOTATED

Copyright © 2014, The State of South Carolina

Voir Dire Case Law

State v. Bixby, 388 S.C. 528, 698 S.E.2d 572 (2010).

Wall v. Keels, 331 S.C. 310, 501 S.E.2d 754 (Ct. App. 1998).

Creighton v. Coligny Plaza Ltd. Partnership, 334 S.C. 96, 512 S.E.2d 510 (Ct. App. 1998), reh'g denied,

(Apr. 10, 1999).

Trial: Exhibits

Breon C. M. Walker

Personal Injury Essentials

Friday, August 21, 2020

Effective Use of Trial Exhibits

I. Purpose of Trial Exhibits: a. Helps the jury to visualize in a way verbal testimony does not:

i. Pictures ii. Diagrams

iii. Expert reconstruction video b. Breaks up the monotony of deposition testimony. c. Gives the jury evidence to take back to the deliberation room.

II. Need to be able to: a. Properly introduce and admit them into evidence; and

i. Try to get agreement on exhibits with opposing counsel prior to trial. 1. If possible, anticipate objections and prepare a motion in limine.

ii. How to admit exhibit: 1. Make sure it is marked. 2. Show exhibit to opposing counsel. 3. Ask to approach the witness. 4. Ask judge if he/she would like to see the exhibit. 5. Show the exhibit to the witness and get them to lay the foundation:

a. Do they recognize? b. How do they recognize? c. What is it? d. Same condition as it was on _________? (document) e. Does it fairly and accurately depict ____ as you saw it on

[insert date]? (photo) f. Is it the ________ as you saw it on [insert date]? (real) g. Make sure the witness testifies that the exhibit will assist

with his/her testimony. 6. Offer the exhibit into evidence

a. Make sure you have a reply to any anticipated objections. 7. Ask permission to publish to the jury.

b. Do so in a way that allows the jury to recognize their value. i. Decide ahead of time which witness to use for the exhibit.

1. If multiple witnesses, enter through the most relevant . a. Might need the others as back-up. b. Can use the others to corroborate.

ii. Why is the exhibit being used? 1. Substantive purposes:

a. Does it contain information that proves a fact at issue in the

case?

b. If so, anticipate objections such as relevance, authenticity

and hearsay. 2. Illustrative purposes:

a. Used to explain substantive evidence, so (usually) any

evidentiary issues related to the exhibit have already been

addressed. III. Common mistakes:

a. Leaving exhibit up for opposing counsel to use against you. b. Allowing opposing counsel’s exhibit to stay up while you are examining a witness

or opening/closing. c. Not properly preparing your witness for the introduction/admission of the exhibit. d. Not anticipating objections from opposing counsel.

Trial: Jury Charges

Dan Haltiwanger

Personal Injury Essentials

Friday, August 21, 2020

Jury Charges

Buy a copy of South Carolina Requests to Charge—Civil (Second) “A trial court is required to charge the current and correct law. When reviewing a jury charge for alleged error, our court must consider the charge as a whole, in light of the evidence and issues presented at trial. An erroneous jury charge will not result in a verdict being reversed unless the charge prejudiced the appellant's case.” Berberich v. Jack, 392 S.C. 278, 290, 709 S.E.2d 607, 613 (2011).

STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS ) FOR THE FIFTH JUDICIAL CIRCUIT

COUNTY OF FLORENCE ) Marcus Simmons, Individually and as ) C/A NO.: 01-CP-21-1071 Guardian ad Litem for Dylan Simmons, ) a minor child, )

) Plaintiffs, )

) vs. ) PLAINTIFFS’ JURY CHARGES

) South Carolina Department of ) Transportation, )

) Defendant. )

) Marcus Simmons, Individually and as ) C/A NO.: 01-CP-21-1851 Natural Guardian for Gerowe Simmons, ) And Gerowe Simmons, )

) Plaintiffs, )

) vs. ) ) South Carolina Department of ) Transportation, )

) Defendant. )

) Anita Longan, Individually, and as ) C/A No.: 01-CP-40-1851 Natural Mother of Dylan Simmons, a ) Minor, and of Gerowe Simmons, )

) Plaintiffs, )

) vs. ) ) South Carolina Department of ) Transportation, )

) Defendant. )

)

PLAINTIFF’S REQUESTED JURY CHARGE NO.: ________

The duty rests upon the State Highway Department to not only keep the paved portion of

the road in reasonably safe condition for motor vehicle travel, but also to keep the road adjacent

to the pavement and the shoulders of the highway in such condition as will meet the reasonable

needs of the traveling public.

Bunton v. State Highway Department, 86 S.C.463, 196 S.E. 188

PLAINTIFF’S REQUESTED JURY CHARGE NO.: ________

Governmental entities responsible for maintaining highways, roads, streets, causeways,

bridges, or other public ways are not liable for loss arising out of a defect or a condition in, on,

under, or overhanging a highway, road, street, causeway, bridge, or other public way caused by a

third party unless the defect or condition is not corrected by the particular governmental entity

responsible for the maintenance within a reasonable time after actual or constructive notice.

Code of Laws for South Carolina Ann. §15-78-60(15)

PLAINTIFF’S REQUESTED JURY CHARGE NO.: ________

“To make out a negligence claim in South Carolina, a plaintiff must prove three elements: (1) a duty of care owned by the defendant to the plaintiff; (2) a breach of that duty by a negligent act or omission; and (3) damage proximately resulting from the breach of duty.” Talkington v. Atria Reclamelucifers Fabrieken BV, 152 F.3d 254 (4th Cir. 1998)(citing Rickborn v. Liberty Life Ins. Co., 468 S.E.2d 292, 298 (S.C. 1996)

PLAINTIFF’S REQUESTED JURY CHARGE NO.: ________

“The law is well settled that in order to establish liability it is not necessary that the

person charged with negligence should have contemplated the particular event which occurred.

It is sufficient that he should have foreseen that his negligence would probably cause injury to

something or someone. He may be held liable for anything which appears to have been a natural

and probable consequence of his negligence.”

McQuillen v. Dobbs, 204 S.E.2d 732, 735-36 (S.C. 1974)

Trial: Post-Trial Motions

Breon C.M. Walker

Personal Injury Essentials

Friday, August 21, 2020

Defense Practice: Reporting Requirements

Charlie Moore

-No Materials Provided-

Personal Injury Essentials

Friday, August 21, 2020

Defense Practice: Dealing with Adjusters

Charlie Moore

Breon C. M. Walker

-No Materials Provided-

Personal Injury Essentials

Friday, August 21, 2020

Defense Practice: Subpoenaing Medical Records

Charlie Moore

Personal Injury Essentials

Friday, August 21, 2020

REPLY TO: Charles F. Moore

CMoore@TurnerPadget.com Writer’s Direct Dial: (803) 227-4225

Direct Fax: (803) 400-1517

September 24, 2013 CERTIFIED MAIL/RETURN RECEIPT REQUESTED Colonial Family Practice

220 Broad Street

Sumter, SC 29150

ATTN: MEDICAL RECORDS CUSTODIAN

RE: JOHN DOE v. MARY ROE

Civil Action No. 2014-CP-40-0123X

Claim No. 5555123456

Our File No.: 2.3003

To Whom It May Concern : This firm represents the Defendant, Mary Roe, in the above-referenced matter. Enclosed is a subpoena requesting a copy of the entire medical record and all bills maintained in your possession and/or control concerning John Doe, D/O/B: 1/1/1970. We will be glad to reimburse you for any copying costs associated with the production of these documents. However, if the

cost of copying these documents exceeds $100.00, please contact my office PRIOR to

copying.

This subpoena is served on you pursuant to the Health Insurance Portability and Accountability Act (“HIPAA”) regulations governing disclosures in the course of a judicial or administrative proceeding, codified at 45 C.F.R. §164.512(e). As required by that section, please allow this letter to provide you satisfactory assurance that we are providing notice of

this document request to the patient by delivering a copy of this letter and subpoena to her

attorney, John F. McKenzie, Esquire. Such notice includes the caption of this case to identify the litigation in which it will be used. The Plaintiff has fourteen (14) days to object to the production of these medical records, pursuant to Rule 45(c)(2) of the South Carolina Rules of Civil Procedure. If you have not received a written objection, by way of a motion to quash

or modify the subpoena from Plaintiff within fifteen (15) days of the date of this letter, you

should produce the medical documents requested in the subpoena. In lieu of appearing in person, you may forward copies of the requested material to our office on Wednesday, October

9, 2013.

September 24, 2013 Page 2

Also enclosed is a Verification to sign and return along with the records verifying that the documents you forward are true, accurate, and complete copies of the documents maintained in your possession and/or control concerning this patient.

If you have any questions or comments, please do not hesitate to contact my legal assistant or me. Thank you for your assistance.

Yours very truly, Turner Padget Graham & Laney P.A. Charles F. Moore

CFM/def Enclosures ccwe: John F. McKenzie, Esquire

PROOF OF SERVICE

SERVED

DATE September 3, 2014

FEES AND MILEAGE TENDERED TO WITNESS

PLACE Colonial Family Practice

220 Broad Street

Sumter, SC 29150

YES NO X AMOUNT $__________________

SERVED ON (PRINT NAME) MEDICAL RECORDS CUSTODIAN

MANNER OF SERVICE: CERTIFIED MAIL RETURN RECEIPT

SERVED BY (PRINT NAME) DENISE FENTERS

TITLE: LEGAL ASSISTANT

DECLARATION OF SERVER

I certify that the foregoing information contained in the Proof of Service is true and correct. Executed on ___September 3, 2014_________

DATE SIGNATURE OF SERVER

ADDRESS OF SERVER

POST OFFICE BOX 1473, COLUMBIA, SC 29202 THE FOLLOWING RULE DOES NOT APPLY TO YOU AND CANNOT BE ENFORCED AGAINST YOU

IF YOU DO NOT RESIDE IN THE STATE OF SOUTH CAROLINA:

Rule 45, South Carolina Rules of Civil Procedure, Parts (c) and (d): (c) PROTECTION OF PERSONS SUBJECT TO SUBPOENAS.

(1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court on behalf of which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney’s fee.

(2)(A) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things, or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial.

(B) Subject to paragraph (d)(2) of this rule, a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time in the court that issued the subpoena for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.

(3)(A) On timely motion, the court by which a subpoena was issued, or regarding a subpoena commanding appearance at a deposition, or production or inspection directed to a non-party, the court in the county where the non-party resides, is employed or regularly transacts business in person, shall quash or modify the subpoena if it:

(i) fails to allow reasonable time for compliance; or (ii) requires a person who is not a party or an officer, director or managing agent of a party to travel more than 50 miles from the county where that person resides, is

employed or regularly transacts business in person, except that, subject to the provisions of clause (c)(3)(B)(iii) of this rule, such a person may in order to attend trial be commanded to travel from the county where the subpoena was served to the place within the state where the trial is held; or

(iii) requires disclosure of privileged or otherwise protected matter and no exception or waiver applies, or (iv) subjects a person to undue burden.

(B) If a subpoena: (i) requires disclosure of a trade secret or other confidential research, development, or commercial information, or (ii) requires disclosure of an unretained expert’s opinion or information not describing specific events or occurrences in dispute and resulting from the expert’s study made

not at the request of any party, or (iii) requires a person who is not a party or an officer, director or managing agent of a party to incur substantial expense to travel from the county where that person resides, is

employed or regularly transacts business in person, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions. (d) DUTIES IN RESPONDING TO SUBPOENA.

(1) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.

(2) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.

STATE OF SOUTH CAROLINA

ISSUED BY THE COMMON PLEAS COURT IN THE COUNTY OF SUMTER

JOHN DOE,

Plaintiff,

v. SUBPOENA IN A CIVIL CASE

MARY ROE,

Defendant. Case Number: 2014-CP-40-0123X

Pending in Sumter County TO: Colonial Family Practice

220 Broad Street

Sumter, SC 29150 ATTN: MEDICAL RECORDS CUSTODIAN

YOU ARE COMMANDED to appear in the above named court at the place, date and time specified below to testify in the above case.

PLACE OF TESTIMONY

COURTROOM DATE AND TIME

YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in the above case. PLACE OF TESTIMONY DATE AND TIME

PLACE OF DEPOSITION

DATE AND TIME

YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects in your possession, custody or control at the place, date, and time specified below (list documents or objects): Medical records, reports, exams, notes,

tests, referrals, laboratory results, radiographic or nuclear medicine studies, any and all radiology reports and actual

films of all X-Rays, CT Scans, PET scans, MRI's, ultrasound or other such studies, and their corresponding reports,

correspondence, consultation reports, physical therapy records, bills, record of payment and any other documents

concerning the care and treatment of JOHN DOE, DOB: 1/1/1970.

PLACE OF PRODUCTION

Turner, Padget, Graham & Laney, P.A.

P.O. Box 1473

Columbia, South Carolina 29202

Attn: Charles F. Moore, Esquire

DATE AND TIME

Wednesday, October 9, 2013

YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below. PREMISES

DATE AND TIME

ANY SUBPOENAED ORGANIZATION NOT A PARTY TO THIS SUIT IS HEREBY DIRECTED PURSUANT TO RULE 30(B)(6), SOUTH CAROLINA RULES OF CIVIL PROCEDURE, TO FILE A DESIGNATION WITH THE COURT SPECIFYING ONE OR MORE OFFICERS, DIRECTORS, OR MANAGING AGENTS, OR OTHER PERSONS WHO CONSENT TO TESTIFY ON ITS BEHALF, AND SHALL SET FORTH, FOR EACH PERSON DESIGNATED, THE MATTERS ON WHICH HE WILL TESTIFY OR PRODUCE DOCUMENTS OR THINGS. THE PERSON SO DESIGNATED SHALL TESTIFY AS TO MATTERS KNOWN OR REASONABLY AVAILABLE TO THE ORGANIZATION.

ISSUING OFFICER’S NAME, ADDRESS AND PHONE NUMBER Charles F. Moore, Esq.; Turner, Padget, Graham & Laney, P. O. Box 1473, Columbia, South Carolina 29202 (803) 254-2200

I CERTIFY THAT THE SUBPOENA IS ISSUED IN COMPLIANCE WITH RULE 45(c)(1) AND THAT NOTICE AS REQUIRED BY RULE 45(b)(1) HAS BEEN GIVEN TO ALL PARTIES. ISSUING OFFICER’S SIGNATURE AND TITLE Attorneys for: Defendant MARY ROE DATE: September 3, 2014 SCCA FORM 254 (7/93) See Rule 45, South Carolina Rules of Civil Procedure, Parts (c) & (d) on Reverse)

STATE OF SOUTH CAROLINA COUNTY OF RICHLAND

) ) )

IN THE COURT OF COMMON PLEAS

CASE NO. 2014-CP-40-0123X JOHN DOE, Plaintiff, v. MARY ROE, Defendant.

) ) ) ) ) ) ) ) ) )

VERIFICATION

The undersigned hereby certifies that the enclosed documents are a complete, true and

accurate copy of the records relating to the medical treatment of John Doe (Date of Birth:

1/1/1970), including but not limited to, all tangible documents maintained by Colonial Family

Practice.

SIGNED: ______________________________________ [Your Name] POSITION: ____________________________________ [Official Title or Position] TODAY’S DATE: _______________________________ COMPANY NAME: _____________________________ ADDRESS: ____________________________________ _______________________________________________ SWORN to before me this ________ Day of __________________, 2014 _____________________________________ Notary Public for South Carolina My Commission Expires: ________________