Here at CBL, we were pretty overwhelmed with our day job for a number of weeks, and then left town with Mrs. CBL to lie on a beach for a week reading books about rock and roll and baseball. All of which means it’s been awhile between posts.
Meanwhile, the legal wheels in California (and all over the country) kept spinning along. Here are a few glimpses of what’s new:
Class Actions: Those who do not themselves live under rocks already know that the US Supremes poleaxed the employment discrimination case against Wal-Mart Stores in Wal-Mart Stores, Inc. v. Dukes, No. 10–277, (U.S. June 20, 2011). CBL thinks this decision may have some major impacts in California consumer litigation, and will have a post devoted to that subject coming soon.
Medicare Reporting: A district court judge in Arizona took a big swipe at CMS’s practice of demanding that plaintiff’s and their attorneys cough up Medicare reimbursements when the amounts are contested. Haro v. Sebelius, No. CV 09-134 TUC DCB, (D. Az., May 5, 2011). The court granted summary judgment and class certification, ruling:
- . . . Defendant's demand for payment of her MSP reimbursement claims, under threat of collection actions before there has been a resolution of an appeal regarding the amount of the Defendant's MSP claim or a waiver request, exceeds her authority under the Medicare statute, and Defendant is enjoined from demanding payment of a MSP reimbursement claim with threats of commencing collection actions before there is a resolution of an appeal or waiver request.
and
- . . . Defendant's demand that attorneys withhold liability proceeds from clients pending payment of amounts claimed by the Defendant as MSP reimbursement exceeds her authority under the Medicare statute, and Defendant is enjoined from demanding that attorneys withhold liability proceeds from their clients pending payment of disputed MSP reimbursement claims.
CMS has suspended the use of its heavy-handed “Rights and Responsibilities” letters, but NB: all of the obligations on both sides to protect the interests of Medicare, and all of the MMSEA reporting requirements, are still in effect.
Civil Procedure: Hey there, defense counsel. You won an order granting summary judgment. Good for you. But that’s not a “judgment.” You still have to get the court to sign one of those. And if you don’t, the plaintiff can get a writ of mandate from the Court of Appeal forcing the trial court to sign one. That way, the plaintiff has a judgment to appeal from. Even if it's a year or more after the motion was granted. Davis v. Superior Court (City of Los Angeles), No. B230666 (Second Dist., Div. Eight, June 13, 2011).
Torts/Personal Injury Practice: Nineteen years ago, in Knight v. Jewett (1992) 3 Cal.4th 296, the Cal Supremes pretty much reinvented the legal defense of “assumption of risk.” They held that assumption of risk was a complete defense to some personal injury actions involving sports and other rough activity involving inherent risks. Put somewhat simplistically, the court held that the doctrine barred liability for injuries arising out of such activities, including acts or omissions that increased the risk, based on a judicial determination of 1) the nature of the activity or sport, and 2) the relationship between the parties. So, unless the injury is inflicted intentionally, there’s usually no recovery for injuries caused by touch football games, baseball, skiing, fencing, raquet ball, etc.
Which brings us to Nalwa v. Cedar Fair, LP, No. H034535 (Sixth Dist., June 10, 2011). Dr. Nalwa went to Great America Amusement Park and rode the bumper cars. The bumper cars ran into each other (Surprise!) She broke her wrist. She sued. The trial court granted summary judgment on the basis of the assumption of risk doctrine. The Court of Appeal reversed, holding the doctrine didn’t apply to bumper cars. CBL’s prediction: if the case doesn't settle, this goes to the Supremes and they either reverse or depublish.
Big Ol’ Product Liability Verdict: And finally, from the Cal Biz Lit schadenfreude files, a $30 million product liability verdict in Butte County Superior Court (which used to be referred to as one of the “cow county courts”). Design defect case against MasterCraft Boat Co. on a stability theory. Really bad propeller injury (27 year old woman, loss of eye, frontal lobe damage, skull fracture). Boat operator had been drinking, wasn’t legally drunk, was held for 20%. But he’d apparently paid his $1 million policy for a covenant not to execute, meaning plaintiff intends to collect all the rest from MasterCraft. The operator’s lawyer said he felt “vindicated.” And in the now famous words of losing defense lawyers everywhere (and CBL has been there, done that, owns the T-shirt) MasterCraft’s attorney announced that "Obviously, we are very disappointed in the outcome," and they would explore their “appellate options.”
