Cal Biz Lit

Cal Supremes To Decide Personal Injury Reduced Medical Specials Issue

CalBizLit has posted on numerous occasions on the cases addressing this question:  "Just what does a personal injury plaintiff get when her medical bills are $200,000 but the hospitals and doctors have deals with the insurance companies, Medicaid (or MediCal as we Californians call it) or Medicare to take a whole bunch less as payment in full?"  Previous posts are here,  here and here.   The defense has 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  both holding that the plaintiff only gets the medicals that were actually paid.  After a concerted effort, the plaintiff side had Howell v. Hamilton Meats &  Provisions holding to the contrary:  that the plaintiff could recover the entire amount billed, regardless of what the providers too as payment in full.

But no more.  Last week, the Cal Supremes granted a hearing in Howell, describing the issues to be decided as follows:

(1) Is the "negotiated rate differential" (the difference between the full billed rate for medical care and the actual amount paid as negotiated between a medical provider and an insurer) a collateral source benefit under the collateral source rule, which allows plaintiff to collect that amount as economic damages, or is the plaintiff limited in economic damages to the amount the medical provider accepts as payment? (2) Did the trial court err in this case when it permitted plaintiff to present the full billed amount of medical charges to the jury but then reduced the jury's award of damages by the negotiated rate differential?

So Howell is no longer citeable authority, and until the Supremes decide (many months from now), the only published decisions on these questions are the Hanif and Nishihama, both favoring the defense.

Proposition 65 and Bisphenol A: They're Back Again

Bisphenol A ("BPA") is a hardener used in plastics, and it's in all kinds of hard plastic containers, including baby bottles.    Industry and environmentalists have been at each others' throats over this chemical for quite some time.  You can get a small flavor of the battle here at what appears to be an industry-supported site:  Bisphenol-a.org,  the National Institutes for Health's National Institute of Environmental Health Sciences site on the subject here, and, on the slightly more alarmist side, the green perspective at Bisphenolafree.org and the calmly, thoughtfully named "OurStolenFuture.org" here. 

As CBL described last summer here and here, OEHHA (the lead agency under Proposition 65) presented a 300+ page magnum opus on BPA to the Developmental and Reproductive Toxicity ("DART") identification committee, seeking to have the chemical listed as a reproductive / developmental toxicant under Propostion 65's "state's experts" mechanism.  The DART Committee said no, at least not now.

But don't underestimate OEHHA's tenacity.  At about the same time the DART committee was considering BPA, the Natural Resources Defense Council petitioned OEHAA to list  the chemical under the "authoritative bodies" mechanism of Proposition 65.  Under that mechanism, chemicals are listed if an "authoritative body" (and the "authoritative bodies" are listed by regulation) finds that the chemical is a carcinogen or reproductive toxin.

So last month, OEHHA proposed listing BPA under the "authoritative bodies" mechanism, based on the fact that, in 2008, the National Toxicology Program published a report finding "that the chemical causes developmental toxicity at high levels of exposure."  According to this announcement from OEHHA, there's a written comment period open until May 13, and there will be a hearing in Sacramento on the morning of April 20.  

CBL predicted last July that listing of BPA  was a done deal.  And it looks like DART's decision then not to list the chemical was just a bump in the road.  The only bases for contesting a listing under the "authoritative bodies" mechanism are that the evidence considered by the authoritative body was insufficient, or that "scientifically valid data that were not considered by the authoritative body clearly establish that the sufficiency of evidence criteria were not met."

Good luck with either of those.  This time it probably is a done deal.  The listing will require reformulation or a warning starting twelve months after the listing becomes effective unless a company using the chemical can establish the "No Observable Effect Level" defense, which is very tough. This will probably end the use of BPA in California for hardening food and beverage containers, as few companies want a warning on their food and beverage containers that the products cause birth defects.

Acrylamide & Prop 65: Gotta' Love That Profit Motive

Acrylamide has been a listed carcinogen under Proposition 65 since 1990, and it looks as though OEHHA will soon be listing it soon as a reproductive toxicant as well.  Acrylamide levels in potatoes increase as they are turned into french fries, potato chips, etc.  Hence, the following rather complicated Proposition 65 warning (presented here without warranty as to authenticity -- I'm not really sure):

Anyway, now comes word that "Functional Technologies Develops Yeast Solution for Acrylamide in Processed Foods."  

The company, located in Vancouver, announced last week that 

it has developed, tested and filed patent applications for yeast technology that reduces the formation of acrylamide, a carcinogen formed when starchy foods are baked, fried or toasted. Recognized globally as a serious food safety issue since 2002, acrylamide has been found in many widely consumed foods, including bread, cookies, crackers, baby food, breakfast cereal, French fries and potato chips.

    Of course, under Proposition 65's section 25249.10(c), if the baking, frying or toasting process results in any increase at all in acrylamide levels, defendants will still have the very expensive burden of showing that the levels are below the "No Significant Risk" and "No Observable Effect" levels.  If Functional Technologies really wants to run with this, it should be proceeding with that very expensive research as well.

Witness Statements: Work Product or Not?

    California's attorney word product doctrine is codified in Code of Civil Procedure § 2018.030, and has both absolute and qualified components.  There is absolute protection against discovery for a "writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories," meaning that such writings are not discoverable under any circumstances.  Other work product (which is not defined) "is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice." 

    For the court's assistance in applying this law, the legislature (which hasn't bothered to define "work product") offers the following philosophical statement in Code of Civil Procedure § 2018.020:

It is the policy of the state to do both of the following:
   (a) Preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases.
   (b) Prevent attorneys from taking undue advantage of their adversary's industry and efforts.

    Well ok, it's a "policy" statement not a philosophical statement.  Still, it might have been nice for the legislature to say what it was they were talking about.  Instead, they supplied the following rather zen guidance in Code of Civil Procedure 2018.040:

This chapter is intended to be a restatement of existing law relating to protection of work product.  It is not intended to expand or reduce the extent to which work product is discoverable under existing law in any action.

    Fine.  And as a result, for as long as I've been a lawyer, trial courts, appellate courts and lawyers have been struggling with, and coming up with different answers to, what seems like a straightforward questions that out to have a bright line answers:  Are witness statements work product?  Are they discoverable?  

    And yesterday, in Coito v. Superior Court of Stanislaus County (March 4, 2010) ___ Cal.App.4th ___ (F057690)  the Fifth Appellate District muddied the waters some more. 

    More confusion after the jump.