Cal Biz Lit

Personal Injury Plaintiff Recovers Full Amount Billed for Medical Services -- Not Just Amounts Paid By Insurance

   Anyone who has had major medical experience in the past thirty years or so knows there is a big difference between what gets billed for medical services and what providers accept from insurers as payment in full.  Health insurers typically have negotiated rates with hospitals, physicians and other providers, so while, for example a $100,000 billing is sent to the patient and the insurer, $30,000 of this is paid by the insurer and the rest is written off.  Under Hanif v. Housing Authority (1988) 200 Cal.App.3d 635 and Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298, when a plaintiff has medical insurance, damages are limited to the amount actually paid or incurred, not the greater amount billed by the medical provider.    It is an article of faith among defense lawyers that if a plaintiff wins a personal injury case at trial, his or her medical specials will be the amount paid by the insurer, not the amount billed by the provider. 

    The recent case of Olson v. Reid (2008) ___Cal.App.4th___ (Fourth Dist., G038478) shows how easy it is for a defendant to mess this up and  get stuck for the amount billed instead.  And perhaps even more significantly, an unusual concurring opinion makes a powerful case that Hanif and Nishihama were wrongly decided, and that an insured plaintiff should recover the full amount billed, not just the amounts paid by insurance.  More after the jump.

Air Travel Just Isn't As Glamorous As It Was

Pity the poor flight attendant.  The French diplomat's wife kicks her in the back.  The pilot raises his fist at her and throws her off the plane.  The airline suspends her, sends her to a shrink and won't give her his report. 

But things perk up when the San Francisco Federal jury awards her $1.2 million.

Mattell Wins Verdict For Barbie Against Bratz

One of CalBizLit's missions is reporting verdicts of interest.  The Wall Street Journal and its LawBlog are both reporting that the Federal Court jury hearing the Mattell v. MGA Entertainment case in Riverside has just come back with a verdict that the popular Bratz doll was designed while the designer was employed by Mattell.  The dollars involved will be decided in a separate phase of the trial.  But there likely will be many such dollars.

Clouded Crystal Ball Department

Yesterday, I spoke on the telephone with a lawyer I know in Indiana.  He went to law school about the same time I did (back when the earth was cooling) and he was commenting that when he was in law school, they'd read the cases on a particular issue, he'd think he understood the applicable law, and then they'd get to the case on California, where things were always, ah, well,  different . . . .

And in that regard, let us review the long and winding road of Barry and Benetta Buell-Wilson's litigation against Ford Motor Company, arising out of her 2002 catastrophic rollover accident in January, 2002:

June, 2004:  San Diego Superior Court jury awards the Buell-Wilsons  $122.6 million in compensatory damages and $246 million in punitive damages.

On post-trial motions, the trial court reduces this to a mere $75 million in compensatory damages and $75 million in punitive damages.

In July, 2006, the Court of Appeal affirms the finding of liability, but reduces compensatory damages to approximately $27.6 million and punitive damages to $55 million.  Buell Wilson v. Ford Motor Co., Inc. (2006) 141 Cal.App.4th 525.   In August, that court denies rehearing.  Buell Wilson v. Ford Motor Co., Inc. (2006) 141 Cal.App.4th 1421b.

Ford petitions the California Supreme Court for review, and this petition is denied in November, 2006.  Ford petitioned the U.S. Supreme Court for certiorari.  The U.S. Supreme Court issued a "GVR" order, granting certiorari, vacating the judgment, and remanding the case for reconsideration in light of Phillip Morris USA v. Williams (2007) 549 US ___ (127 S.Ct. 1057) (now known as "Williams I," as "Williams II" is presently before that court).

As discussed in CalBizLit here, and a whole bunch of other places, the Court of Appeal said "reconsider?  sure, we'll reconsider, and we'll come right back with exactly the same decision."  Buell-Wilson v. Ford Motor Company (2008) ___ Cal.App.4th___ (Fourth App. Dist. D045154, D045579).

    That astute observer of the legal scene Bruce Nye at CalBizLIt commented at the time: 

"This may be the end of the road for Ford.  The Court of Appeal seems to have set up enough procedural obstacles that the Supremes won’t get involved unless they really, really, really are determined to slap down excessive punitive damages awards."

Well, nice prognosticating.  Except it's 180 degrees wrong.  The Cal Supremes have granted review, and here's the statement of issues for decision:

(1) What procedural protections are required by Philip Morris USA v. Williams (2007) 549 U.S. __, 127 S.Ct. 1057, which held that due process requires that a jury not award punitive damages to punish for harm to third parties; and under what circumstances can those constitutional rights be deemed forfeited? (2) Are punitive damages prohibited in product liability cases where the manufacturer's design conforms to governmental safety standards and industry standards and custom, and there is a "genuine debate" about what the law requires? (2) Is the amount of the punitive damage award in this case unconstitutionally excessive and arbitrary?

The Supremes have put the case on hold pending the U.S. Supreme Court's decision in Williams II.

We're Baaaaack . . . . . . . . .

Well, a bit of hiatus, and bit of overwork, and a bit of vacation, and the next thing you know, it's been twenty-five days since the last post (and that one was one of those annoying, off-topic music video posts).  I'm sure this has been a huge disappointment to the twenty or twenty-five loyal readers out there. 

Now that I'm back in the saddle, I'm not going to try to catch up on everything that's happened in the last month or so.  Instead, a few highlights from that period over the next couple of days, and then we'll go current again.  We'll start here with a few interesting verdicts: 

First, in the boomer department, we have a $15,072,210 verdict in Los Angeles Superior Court, Central Division (the division known warmly to the defense bar as "the bank") in Kyle Tilton v. Southern California Gas Co., Los Angeles Superior Court No. BC367753. The verdict was in May, but reported in VerdictSearch (subscription required) on June 30.  Gas company truck runs red light, hits mother and son, causes fourteen-year-old son serious injuries (closed head injury, eight fractured ribs, collapsed lung, spleen and liver lacerations, multiple fractures to pelvis, hip and coccyx) resulting in $134,000 in past medicals and a projected $3.5 million in future medicals.  Admits liability.  Jury awards the $15+ million, including $270,000 in emotional distress for mom and a thumping $10 million past and future emotional distress for the minor.  Press account is here. 

Next, in the "best defense isn't always a good offense" department, we submit for your consideration Montrenes Financial Services, Inc. v. Michael Littell, Orange County Superior Court No. 04CC08276.  Coverage from the Trade Secrets Vault is here.  Long story short:  Four of Montrenes' sales people were told to sign a confidentiality agreement.  They refused.  Montrenes fired them, confiscated their personal computers, called the police and the FBI pressing complaints that they had stolen proprietary information, then sued them for stealing trade secrets.  Littell countersued for wrongful termination in violation of public policy, contending he'd been fired for refusing to sign an unlawful confidentiality agreement.  Montrenes spent ten weeks putting in evidence in support of its trade secrets claim, and then the trial court threw that out on Littell's motion for nonsuit.  The court then ruled that the proposed confidentiality agreement was illegal, the case went to the jury, and the jury awarded Littell $3.9 million. I suppose Montrenes may want to re-think that strategy next time.

And finally, in the elder abuse department, we bring you Mary Kathleen Adams v. Sunrise Senior Living Services, Orange County Superior Court No. 05CC13119, reported in VerdictSearch and available on line here.  Ms. Adams passed away at the age of 104.  After breaking her leg at home, she was hospitalized and then moved to defendant's skilled nursing facility, where she stayed from December 21, 2004 through February 27, 2005 -- that's two months and six days, or sixty-nine days folks.  And during those sixty-nine days, Ms. Adams got much sicker, ultimately succumbing to sepsis infection secondary to decubitus ulcers.  While California law generally prohibits pain and suffering in wrongful death cases, there is an exception in some cases of elder or dependent adult abuse under Welfare and Institutions Code section 15610 and following, and particularly section 15657;  Marron v. Superior Ct. 108 Cal.App.4th 1049, 1061-1065.  Thus, for her sixty-nine days of suffering, the heirs of this 104-year-old decedent received $1 million in pain and suffering and $1 million in punitive damages. 

More coming today or tomorrow with some of the recent appellate activity.  Meanwhile, this is CalBizLit's first post using Windows Live Writer.  I'll be holding my breath when I click the "publish button."