Developments in the Law

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Department of Transportation Regulations Establish National Requirements For Vehicle Event Data Recorders

By Jim Garrison

JimMost passenger vehicles and light trucks with gross vehicle weights (GVWRs) of 8500 pounds or less manufactured in September 2012 and later with event data recorders (EDRs) are subject to new Department of Transportation regulations designed to improve accessibility to EDR information and to standardize retained data. The regulations do not require the use of EDRs.

49 C.F.R. 563 requires EDRs to record several types of motor vehicle crash event data including speed, brake status, driver safety belt status, airbag information and Delta-V (a measurement of the change in velocity crucial to determinations of the force of a collision). Manufacturers must also make EDR data retrieval tools accessible publicly.

While EDR information has been available for a number of years, the new regulations will expand that availability, standardize the format of the information, make the information more accessible and, it is hoped, make use of the information more economical.

 

The Supreme Court of Missouri Upholds Statutory Cap on Non-Economic Damages in Medical Malpractice Cases

By Mark Favazza

Mark FavazzaOn April 3, 2012 the Supreme Court of Missouri upheld in a 5-2 decision the statutory cap on non-economic damages in medical malpractice cases under Missouri's 2005 tort reform legislation. In Sanders v. Ahmed, No. SC91492 (2012), a jury awarded Mr. Sanders $9.2 million in non-economic damages for the wrongful death of his wife who had passed away after suffering brain damage allegedly due to a change in her medication that the defendant neurologist had ordered. The trial court applied the inflation-adjusted statutory damages cap to the verdict which reduced the judgment to $632,603.82 per defendant for a total judgment of $1,265,207.64. Mr. Sanders appealed to the Supreme Court challenging the constitutionality of the damage cap.

The Supreme Court of Missouri ultimately held that because a wrongful death claim is purely a creature of statute, and not of common law, the legislature had the constitutional power to limit recovery in wrongful death actions. That is the same reasoning that the same majority of the Supreme Court used earlier in the year in another 5-2 decision (Estate of Overbey v. Franklin Nat'l Auto Sales N., LLC, No. SC91369) in which it upheld the constitutionality of punitive damages caps in statutorily created causes of action.

These decisions raise an obvious question: what will become of the damage caps when applied to common law causes of action? The narrow grounds of the Supreme Court's decisions in Sanders and Estate of Overbey have almost ensured that we will see a future challenge to the damage caps by a plaintiff who has a common law action. But any future challenge will have the difficult task of convincing a majority of the court that its 1992 decision upholding a prior version of the non-economic damages cap as applied to a common law medical malpractice action was incorrect. It's safe to say that the two dissenting justices in Sanders would overturn the 1992 decision, but a successful challenge would require two more justices to join them. Attorneys and risk management professionals can now at least count on Missouri's non-economic damages and punitive damages caps when evaluating defendants' exposure in statutorily created causes of action.

 

New Illinois Supreme Court Rule Allows Jurors To Question Witnesses

By Jim Garrison

JimEffective July 1, 2012, Illinois courts may permit jurors in civil cases to question witnesses. New Rule 343 of the Illinois Rules of Civil Procedure gives courts discretion to determine when circumstances are appropriate for jurors to submit written questions to a witness after the witness has been questioned by counsel. Jurors may not discuss the questions but may submit any number of questions for consideration by the court. Outside the presence of the jury, counsel will have an opportunity to object to proposed questions. The court will rule on any objections and, after consideration, either admit, modify or exclude the questions. The court will ask each admitted or modified question and counsel will be allowed to ask follow-up questions limited to the scope of the new testimony.

Similar rules have been adopted in other jurisdictions with the goal of improving juror comprehension, attention to the proceedings and satisfaction with jury service. At this time, Missouri does not allow juror-submitted questions.

Hand Held Cell Phones Are Out If You Are An Interstate Truck Driver

By James Bax

BaxThe United States Department Transportation recently took a significant step to alleviate what it apparently sees as a nationwide problem----use of hand held cell phone by truck drivers.

In late 2011 the U.S. Transportation Secretary announced a final rule addressing this issue. The rule specifically prohibits the use of hand held cell phones by interstate truckers and bus drivers while operating their vehicles. The rule was jointly enacted by the Federal Motor Carrier Safety Administration (FMCSA) and the Pipeline and Hazardous Materials Safety Administration (PHMSA).

The hand-held cell phone ban comes on the heels of the FMCA's ban on texting while operating a commercial truck or bus in 2010. The PHMSA likewise enacted a texting ban on intrastate hazardous material drivers in 2011.

Violators will face progressively stiffer penalties for each violation. Drivers will face fines up to $2,700.00 for each offense and possible disqualification from operating commercial vehicle for multiple offenses. Truckers will also face possible CDL revocation at the state level for 2 or more violations. Commercial trucking and bus companies will face up to $11,000.00 in penalties for allowing their employees to use hand held cell phones while operating their vehicles.

It is believed that this rule will affect as many as 4 million commercial drivers.

Commercial trucking is not the only industry in which cell phones are perceived by some as a hazard. In 2008 The Federal Railroad Administration passed similar regulations prohibiting the use of the cell phones while operating locomotives.

New Trucking Hours of Service Rules Will Impact Industry

By Ralph Godsy

RalphGodsyThe Federal Motor Carrier Safety Administration recently announced its final rule modifying the hours of service safety regulations. The new rule reduces the number of hours individual truck drivers may be on the road during a 7-day period and impacts all parties in the goods-distribution chain. Drivers will earn less due to fewer hours on the road, mixing centers and warehouses will have to adjust their hours, and trucking companies will have to hire additional drivers and incur extra training and overhead costs. Increased transportation costs will be passed on to retailers and their customers. The reduced number of overnight driving hours will force more trucks on to the road during daylight hours resulting in highways, warehouses, and retail loading zones being more congested during business hours. Trucking industry advocates state that the rule change is unnecessary as truck related fatalities and injuries are declining at a much faster rate than the decline seen among all drivers even though total truck mileage is up.

The basic driving window will not be changed by the new rule. Following a break of at least 10 hours, drivers have a 14 hour window during which they may drive up to 11 hours. Also unchanged is the maximum on-duty rule of 60 hours in 7 days or 70 hours on-duty for 8 days. On February 27, 2012 the definition of "on duty" will be amended. Time spent resting in a parked commercial vehicle will not count as "on duty." Additionally, a team driver will be able to count as "off duty" the time, up to 2 hours, spent in the passenger seat immediately before or after a period of 8 or more hours in the sleeper berth.

Beginning July 1, 2013, drivers must take a 30 minute break within the first 8 hours of a work day. Also starting July 1, 2013, drivers seeking to maximize their weekly work hours may "restart" their 60- or 70-hour on-duty clock by spending at least 34 consecutive hours off-duty. There are two limitations to the "restart". First, it must include at least two nights from 1:00 a.m. to 5:00 a.m., and second, a driver can only "restart" their 60- or 70-hour on-duty clock one time within a 168 hour (7 day) period. Limiting drivers to one 34-hour restart per seven day period has the effect of reducing the maximum time a driver can work per week from 82 hours to 70.

Despite the changes, safety advocates are unhappy with the rule change stating that a 70-hour work week is still too long.

Healthcare Reform Court Challenge Update

By William Brasher

The U.S. Supreme Court has scheduled oral argument on the Constitutionality of certain portions of the Patient Protection and Affordable Care Act of 2010 for March 26-28, 2012. In an unprecedented move the Court has allotted five and half hours for argument over the three days. Typically the Court allows one hour for argument per case.

One of the issues before the Court is whether the challenge is premature as to that portion of the Act which imposes a fine for not participating in the program. The Court will also hear arguments regarding whether Congress can require individuals to have mandatory health coverage and whether Congress can require states to participate in the reforms mandated by the Act by threatening to cut off federal funds for failing to participate.

A decision is expected before the Supreme Court convenes in June.

Illinois Supreme Court Clarifies Design Defect Duty

By Jim Garrison

JimThe Illinois Supreme Court recently reversed a $43,000,000 jury verdict from Madison County which had been affirmed by the Fifth District Appellate Court. The September 22, 2011, Supreme Court decision in Jablonski v. Ford Motor Co., 2011 IL 110096 clarified the proper duty analysis in negligence actions claiming product design defects.

The Jablonski case arose out of a tragic automobile accident in which the Lincoln Town Car of John, Jr. and Dora Mae Jablonski was rearended at high speed while stopped in a construction zone. The Town Car caught fire, killing Mr. Jablonski and seriously injuring his wife. Evidence was presented at trial indicating that a large wrench in the trunk of the Town Car punctured the gas tank during the collision, causing the fire. The case was tried against the manufacturer of the Town Car on the theory that the gas tank was negligently designed. It was claimed that the tank was improperly located aft of the rear axle without adequate shielding and that Ford's negligence constituted willful and wanton conduct worthy of punitive damages. The verdict included punitive damages of $15,000,000.

In reversing the verdict, the Supreme Court clarified that in determining the extent of the duty of a manufacturer to design a safe product in a negligence case a court must weigh the risks inherent in the product design against the utility or benefit derived from the product. It is incumbent on the trial court to initially balance the risks and benefits to determine whether the facts in evidence warrant submission to the jury. Only after that initial determination is the jury asked to weigh the evidence and determine whether the defendant acted unreasonably.

After analyzing the trial evidence, the Supreme Court determined that there was insufficient evidence to submit the case to the jury. The Court noted that Ford had met and exceeded the industry standard for fuel system integrity, the risk of injury was remote and that plaintiffs' evidence of alternative designs was inadequate. Contrary to the determinations of the trial court and appellate court, the case was simply too weak to present to a jury.

Federal Healthcare Law Update

By William Brasher

The U.S. Supreme Court has decided to hear constitutional challenges being raised regarding the 2010 Affordable Care Act.

There have been numerous changes to the Act in which a majority of the Appellate Courts that have ruled found that the Act passes constitutional muster. Of those judges that have found parts of the law invalid, no appellate court judge has found that the entire law is unconstitutional.

The primary challenge to the Act is whether the federal government can compel individuals to purchase healthcare insurance and if so, what are the limits on the power of the government to compel individuals to do other things, such as to purchase only American made products?

These types of questions raise the issue of how far the Federal Government can impose its Will on individuals and restrict the right of individuals to choose whether to participate. Similar questions were raised when Social Security and Medicare were enacted.

A decision is expected before the November 2012 elections

Constitutionality of Medical Malpractice Caps Comes Under Fire in Missouri Supreme Court Argument

Recent RRB Opinion May effect FELA Outcomes

By William Brasher

In the summer of 2010 the U.S. Railroad Retirement Board ("RRB") issued a legal opinion that may have far reaching implications for damages in FELA cases. In its formal opinion (No. L-2010-04) the RRB confirmed that jury verdicts in FELA injury cases brought against railroad employers which include compensation for time lost from work by the employee that lost time compensation is "creditable income" for railroad retirement purposes and is thus taxable upon satisfaction of any FELA judgment by a railroad. Also of significance in this opinion the RRB indicated that railroad employees who have been receiving an RRB disability annuity may be subject to having to repay the RRB for benefits received for the same time period as that covered by their favorable jury verdicts upon satisfaction of a judgment which covers the same time period as the verdict for time lost to avoid an overpayment to the employee. Employees receiving a disability annuity covering time lost from work who receive an FELA judgment for the same lost earnings may need to be concerned about double recovery. Boyle Brasher LLC is cooperating with the railroad industry and its clients to fully understand the ramifications of this RRB opinion.

Railroad's Right to Bring Counterclaim against FELA Plaintiffs

Four (4) federal appellate courts agreed in earlier opinions that the FELA does not prevent a railroad from filing a counterclaim against an injured employee for damages caused by the employee's negligence. In December, 2010, however, the 7th Circuit Court of Appeals (Illinois) upheld a lower court's decision granting a Jones Act Plaintiff's motion to dismiss an employer's counterclaim against its employee. Although Boyle Brasher has most recently prevailed for its client on FELA plaintiff's' motions to dismiss this type of counterclaim in Illinois state courts, this issue will remain a hot topic and battleground. The plaintiffs' argument is typically that a counterclaim is a "device" that dampens the claimants' rights under the FELA. Boyle Brasher LLC has countered successfully with the assertion that the FELA has not abrogated a defendant's right to pursue a counterclaim against the FELA plaintiff.

Recent Trends in Medical Malpractice Cases

By Rich Roessler

Boyle Brasher LLC's most recent experience in medical malpractice cases has been that 70% of the cases are either dismissed or result in defendant's verdict. The trend has been towards an increased number of cases being dismissed. Of the last 21 medical malpractice cases assigned by various insurance carriers to me, 14 of these cases have resulted in dismissals. Some of these cases have been dismissed early in the process with little expense. Some of the cases had to be prepared and developed almost to the point of trial. Many of these cases have been dismissed because Boyle Brasher LLC has convinced the plaintiff's attorney that we are willing to try the case and have obtained convincing expert testimony that persuades plaintiff's counsel not to undertake the expense and the risk of losing.

Secondhand Asbestos Exposure Liability

FRA Draft Model State Safety Statute

By William Brasher

In February 2011, the Federal Railroad Administration (FRA), the agency with jurisdiction over railroad safety, issued a draft model law for states to consider adopting in regards to a motorist's obligation upon approaching a railroad grade crossing. The new model law is intended to establish uniform nationwide grade crossing laws in an effort to prevent collisions and casualties to motorists and their passengers. The draft model law is available on the FRA website at fra.dot.gov. In-house counsel, trade association attorneys, and attorneys with practices in the area of railroad casualty law will be interested in following efforts by states' legislators to enact the model law.

Federal Railroad Safety Act and OSHA

By Richard Roessler

An amendment to the Federal Railroad Safety (FRSA) known as the "Whistleblower Act" delegated power to the Occupational Safety and Health Administration (OSHA) to enforce the provisions of the Act against railroads. Recently, OSHA has been focusing on claims of alleged intimidation or retaliation by employers against their employees for reporting personal injuries which is covered under the Act. Many of these OSHA whistleblower cases are based on the mere fact that the employer has enforced its safety rules and found a violation by its employee after a claim for personal injury. Traditionally, jurisdiction for these types of disputes, whether disciplinary actions for violations of safety rules were appropriate, were handled by the Railway Labor Board and still are. However, OSHA can concurrently pursue the same matter and can award actual damages, reinstate employment, back pay with interest, attorneys' fees, costs and punitive damages up to $250,000.00. Although these cases appear to begin as fairly routine administrative procedures, it has been Boyle Brasher LLC's experience that they are best prepared from the beginning anticipating the worst case scenario, i.e. the award of significant damages. Administrative awards by OSHA have ranged from $200,000 to $500,000. In cases where OSHA has failed to act and the plaintiff files suit in a U.S. District Court, verdicts have been returned in excess of $1 million. There are, of course, avenues of appeal. However, it is imperative that employers recognize that to achieve the best possible outcome a whistleblower case must be thoroughly investigated and prepared from the beginning in anticipation that following the administrative process there could well be a need for a trial de novo and/or possible appeal.

Petrillo Doctrine Revisited in Appellate Opinion Involving Contact by Physicians in Group Sued for Medical Malpractice with Other Members of the Same Group

By Andrew Corkery

Under the well known Petrillo Doctrine, Illinois defense counsel cannot contact healthcare providers of plaintiff. The Petrillo rule can provide some complicated situations in the medical malpractice setting. In a recent case, Aylward v. Settecase, 2011 WL 1679845 (Ill.App. 1 Dist.), the Illinois Court of Appeals for the First District held that a physicians' group that was being sued for malpractice could not contact physicians who were members of the group who were not named in the lawsuit. The case appears to have serious implications for any entity that defends medical malpractice cases and how they defend themselves.

However, the facts of Aylward somewhat limit the impact of its holding. In Aylward the plaintiff was diagnosed with cancer, and he claimed that his treating physician failed to diagnose the cancer. Plaintiff sued the doctor and the medical group that employed him. The medical group in defending the suit wanted to speak to other doctors in the group. Prior to the court hearing on whether the medical group would be allowed to proceed to contact its other members, plaintiff amended his complaint to clarify he was suing the medical group because of the conduct of the defendant physician, not because of the acts of other servants or employees. Illinois case law has established that a hospital or other healthcare entity can have contact with employees for whose conduct the hospital or entity is alleged to be liable. The Alward opinion does nothing to change that law. However, by limiting his complaint plaintiff made clear that he was not claiming the actions of the other employees of the medical group were the source of his cause of action.

The implications of this case should be carefully reviewed when defending lawsuits against medical groups, hospitals, or other healthcare entities.