David's Library
James Berra v. Charles Danter, Missouri Court of Appeals, Eastern District - UPDATE
On October 27, 2009, the Missouri Court of Appeals for the Eastern District opined the defendant's argument that the court may only consider medical bills "incurred" to the extent of the dollar amount paid had no merit. The court further stated, "Defendant's interpretation of "incurred" in subsection (a) of S490.715.2 as the amount "paid" is not only inconsistent with the prior definition given to "incurred" by our courts, but also this interpretation would make subsection (b) of 490.715.2, which specifically allows evidence of the amount actually paid for medical treatment, superfluous."
"Vague Methodology" Leads to Criticism of Medical Bills Law
On August 13, 2009, St. Louis County Judge Steven H. Goldman sustained Plaintiff's Motion for New Trial. The basis for Judge Goldman's ruling relates to S490.715.5 of the Revised Statutes of Missouri. Citing the statutes "vague methodology", Judge Goldman determined that the statute violated the substantive due process provisions of the U.S. and Missouri Constitutions.
Texting in Missouri Banned For All Drivers? It Could Happen!
After a Virginia Tech Transportation Institute study released in July 2009 revealed that cell phone use or reaching for a telephone or other electronic devices in a vehicle increased the risk of collision approximately six times in passenger vehicles and trucks, Missouri lawmakers stepped in and banned texting while driving for drivers 21 and under in August 2009. In November 2009, the Missouri Department of Transportation followed suit and banned their employees from sending text messages while operating agency equipment or driving agency vehicles. That ban also applied to employees during working hours that drove their own vehicles.
Pharmaceutical Giants Swallow Tough Pill
Donna Scroggin began taking estrogen and progestin drugs after a bout with breast cancer. In 2004, she sued Wyeth and Upjohn, pharmaceutical distributors, and its divisions for failure to warn of the risk of breast cancer from combination hormone therapy. The trial was bifurcated, with liability being determined first and punitive damages being determined second.
After a three week trial, the jury awarded Donna Scroggin compensatory damages in the amount of $2.7 million. Following a three day trial, Wyeth was found liable for $19.36 million and Upjohn liable for $7.6 million in punitive damages.
Court of Appeals Judge Judge Wollman recently ruled that the companies' rights were not violated due to district court errors and upheld the verdict for compensatory damages against Wyeth and Upjohn. The order granting judgment as a matter of law to Upjohn for the claim for punitive damages was affirmed. The order granting judgment to Wyeth for punitive damages was vacated and the case was remanded to district court for a new trial on punitive damages.
Automobile Accident Statistics
In 2002, an estimated 6.3 million auto accidents in the United States caused 2.9 million injuries and claimed 42,000 lives. In Missouri alone, more than 1,100 people died in automobile accidents. Sadly, among young people, auto accidents are the leading cause of death. More often than death, however, auto accident rob their victims of their livelihood and often force them to undergo expensive surgeries and costly medical care. Compounding the tragedy of a serious or fatal accident is the fact that the vast majority of auto accidents are preventable. When someone is distracted, negligent, or under the influence of alcohol or drugs, an auto accident is more likely to occur. While we are not always able prevent negligence of other drivers, we can protect ourselves. Buckle up and drive safely!
Washington State Supreme Court Rejects Certificate of Merit Requirement
Kimme Putman sued Wenatchee Valley Medical Center and several physicians for negligently failing to diagnose her ovarian cancer. The trial court dismissed her lawsuit because Putman failed to file a Certificate of Merit from a medical expert, as required for medical malpractice lawsuit under RCW 7.70.150. Putman challenged the constitutionality of the certificate of merit requirement and the Supreme Court of Washington found RCW 7.70.150 unconstitutional because it unduly burdens the right of access to courts and violates separation of powers. The matter was remanded to the trial court for further proceedings.
Information released by the U.S. Department of Transportation revealed that 6,000 people were killed and a half-million suffered injuries in traffic accidents tied to distracted drivers last year. There is now a move afoot in the Missouri legislature to extend the texting ban to all Missouri drivers.
Study Finds Texting While Driving Significantly Raises Risk Of Automobile Crashes
Have you ever been driving down the highway and watched the car in front of you drift in and out of the traffic lane? Ever experience a car nearly sideswipe you for no apparent reason? If so, you may have narrowly missed being involved in an accident with a driver who is texting while driving.
The Virginia Tech Transportation Institute recently used cameras to observe truckers and light vehicle drivers for more than six million miles. Their conclusion was that texting while driving dramatically increases the risk of accident due to motorists taking their eyes off the road. When drivers of large trucks tried to send text messages while driving, their collision rate was twenty-three times greater than when not texting. Dialing a cell phone and using or reaching for a cell phone increased collision risk approximately six times in cars and trucks.
While recent studies implied that talking and listening were as dangerous as texting, this study indicates that is not the case. Talking or listening on a cell phone allows drivers to keep their eyes on the road. Texting drivers spend nearly five seconds looking at their devices, which, at 55 miles per hour, is more than enough time to cover the length of a football field.
The study also found that the use of headsets with cell phones is not safer because answering and dialing both take the driver's eyes of the road.
To ensure safety, the Institute recommended that texting be banned for all drivers and cell phone use while driving should be forbidden for newly licensed drivers. Currently, only fourteen states ban texting while driving, including Arkansas, but that number is likely to rise.
Be smart and safe: don't text and drive.
Move Over In Missouri: It's The Law!
We all know that we are to move over and stop when an emergency vehicle approaches us while driving, but did you know that you have obligations as well when you approach a stopped emergency vehicle? Missouri law says you do.
Missouri law (RSMo. 304.022.2) requires Missouri drivers to yield the right of way and move over one lane, or if there is not room, slow down and move over half a lane, when approaching a stationary emergency vehicle with its lights on, working on, or in any part of the roadway. This law is applicable not only to tow truck drivers but also recovery personnel, emergency responders, law enforcement, fire and rescue, EMS, Hazmat, and Department of Transportation workers. Failing to comply with this law is a Class A misdemeanor.
Do your part in keeping Missourians safe (and in not getting a ticket!)
Jefferson County Judge The Latest Critic of Missouri Medical Bills Law
Jefferson County, Missouri Judge Robert G. Wilkins ruled that the value of medical treatment rendered to plaintiff shall be the dollar amount billed or charged by the plaintiff's healthcare providers, rather than just the amount paid. Judge Wilkins further ruled that S490.525 R.S.Mo 2000, as amended, is controlling.
In this case, the Missouri Court of Appeals ruled that defense lawyers are not permitted to engage in informal ex parte communications with a plaintiff's physician absent express authorization from the plaintiff. This Court also reviewed the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) and concluded that HIPAA generally prohibits physicians from engaging in an ex parte oral disclosure of a patient's protected health information. The Court reasoned that plaintiffs are free to execute authorizations authorizing ex parte communications between the patient's treating physician and the defense attorney, but a litigant patient in a personal injury lawsuit is not obligated to sign any such authorization. The Court finalized its opinion by stating that any attempt by a lawyer to convince a physician to voluntarily, and perhaps unwittingly, violate HIPAA may carry with it a host of other legal ramifications.
Surveillance Videos And Photos Are Not Work-Product
An Illinois federal judge ruled that defendant's surveillance videos and photographs must be produced to plaintiff. In making his Order, U.S. Magistrate Judge Byron G. Cudmore ruled that the plaintiff's Motion to Compel surveillance documentation should be granted and specifically overruled defendant's objection that surveillance tapes in its possession were work-product.
The Advisory Committee of the Supreme Court of Missouri recently issued Formal Opinion 125 after reviewing the Missouri Rules of Professional Conduct concerning attorneys agreeing to indemnify the opposing party for debts owed by the attorney's client. Rule 4-1.8(e) provides that a lawyer shall not provide financial assistance to a client in connection with pending on contemplated litigation with the exception of the advancement of court costs and litigation expenses. Therefore, an attorney cannot indemnify an opposing party as it violates Rule 4-1.8(e). If a third party has a legal interest in funds held by the attorney, the funds must be disbursed or held in trust until the matter is resolved. In matters of settlement, it is a violation of Rule 4-8.4(a) for an attorney to propose a settlement that includes a provision that would involve a violation of any of the Rules of Professional Conduct by another attorney.
