Texas Insurance Defense and Litigation

After medical malpractice caps, more doctors moving to Texas

The New York Times today reports that more doctors are moving to Texas after the adoption of medical malpractice caps a couple of years ago:

Four years after Texas voters approved a constitutional amendment limiting awards in medical malpractice lawsuits, doctors are responding as supporters predicted, arriving from all parts of the country to swell the ranks of specialists at Texas hospitals and bring professional health care to some long-underserved rural areas.

The influx, raising the state’s abysmally low ranking in physicians per capita, has flooded the medical board’s offices in Austin with applications for licenses, close to 2,500 at last count.

...

“Doctors are coming to Texas because they sense a friendlier malpractice climate,” he said.

Texas truck accident lawsuit is one of largest verdicts in 2006

Lawyers USA has published a story about the “top ten jury verdicts of 2006”.  The number ten slot is occupied by a Texas lawsuit in which actual damages of $38.5 million were awarded.  It was an underride protection lawsuit in which the jury awarded $36 million to a 25 year-old woman who survived, and $2.5 million to the family of a woman who died.  Here’s a link to the story.

Juror deliberations in the Scooter Libby trial

Law.com has a very interesting story about the juror deliberations in the Scooter Libby trial.  Regardless of whether you agree with the outcome, don’t you wish all juries were this focused, meticulous, and conscientious?

*****

ONE JUROR'S ACCOUNT

Collins, 57, a former Washington Post reporter, was the sole juror to give an account of the deliberations. The other 10 jurors declined to speak to the media, but Collins said, after years as a journalist, "I just figured it would be kind of hypocritical for me to walk away."

By his account, jurors gathered each day on the 6th floor of the courthouse, in a room overlooking the D.C. Department of Motor Vehicles. The room had two long tables and a few cushioned seats. When they arrived the first Wednesday afternoon, everyone looked at each other without knowing what to do. "They don't give you a field manual on how to be a juror," he said.

But the jury was a resourceful one, full of methodical panelists who knew how to take charge and break down complicated material into digestible bits. And that is what they did for the first week, gathering large Post-it notes (2 1/2 by 2 feet) with quotes and information concerning the evidence presented. The jury had some meticulous note-takers, Collins said, including one who calculated how many objections had been sustained during Russert's testimony (25 out of 36). For the first week of deliberations, the jury made no decisions, took no straw polls, but systematically went through the evidence. They asked: Who told the truth? Who lied? Who do we believe?

The debate was not about the war. It was not about politics. Collins said he didn't even know the politics of most jurors during deliberations. (Although he said he learned this morning that at least three were registered independents.) There were "differences of opinion, but no fistfights," Collins said. (For instance, he said one person thought former White House press secretary Ari Fleischer was a "slick willy," while Collins didn't think Fleischer had any motive to lie.)

At times, of course, the jury grew restless and would occasionally glance outside at a small stand with hot dogs and half-smokes. "It was like we were in a cocoon. I would forget what day it was," he said.

But in the end, Collins said, it simply came down to the facts, which pointed to a single answer: guilty. "Opinion had very little to do with it," he said.

What stood out most to the jury was Libby's account that he was "surprised" when he first learned that Valerie Plame worked at the CIA. "The least convincing thing was that Libby was working so hard that he could forget everything," Collins said.

Looking at the Post-its they had amassed, the jury found that in a short period of time Libby had either been told about Plame's employment, read about it, or told someone else at least nine times. "It seemed very unlikely that he would not have remembered about Mrs. Wilson," he said.

There was, he said, just too much evidence. He singled out the testimony from Marc Grossman, former undersecretary of state, who noted that the information about Wilson's wife was an "interesting tidbit." And Collins said that Cheney's handwritten notes on Wilson's op-ed questioning whether Plame sent her husband on a "junket" stood out.

"It was just very hard not to believe that he could remember on Tuesday and forget on Thursday and then remember two days later," Collins said, echoing the rhetoric Fitzgerald used during trial.

While the jury was inclined to believe that Libby had a bad memory, Collins said John Hannah, Libby's former national security adviser who testified for the defense, seemed to hurt Libby. Hannah testified that Libby had an "awful memory," but jurors found that didn't mesh with his comments that Libby had a strong memory for conceptual issues, Collins said.

But when it came to the count about Libby's statements to the FBI about Cooper, jurors were more skeptical. Their eventual decision to acquit on that charge stemmed from the lack of documentation on Cooper's part. Cooper had no notes to back up that Libby confirmed Plame's identity and there was a passage in Cooper's notes that the defense tried to suggest represented Libby's explanation of the conversation. While jurors weren't absolutely convinced about that passage, those questioned "weighed six ounces" and were enough to create "reasonable doubt," Collins said.

On the whole, though, jurors found the key reporters testifying for the prosecution to be credible, he said. Some even thought the defense attorney's badgering of Miller worked against Libby. "Some said I think she seems nice," Collins recounted.

Jurors put little weight in the parade of journalists that testified for the defense. And even though Libby didn't testify at trial, Collins said the jury felt very good about having eight hours of his grand jury testimony.

Despite their decision, Collins said, "We had tremendous sympathy" for Libby. One juror said he didn't want to be judging Libby. "This sucks," Collins quoted the juror as saying. "The belief of the jury was that he was tasked by the vice president to talk to reporters," he said.

Yet, Collins emphasized, "This wasn't about the war ... This wasn't a question of who can we punish for going into Iraq."

Illegal aliens and recovery of future lost wages

Oklahoma Attorney Robert B. Coffee, Jr. presented a paper at the last mini-conference of the Trucking Industry Defense Association.  The paper explored the issue of illegal aliens recovering for future lost earnings in personal injury actions.  He makes the following points:

The question should be framed as follows:  "When the plaintiff is an illegal alien, why should the defendant have to pay for future wages that could only be earned in violation of federal law?"

The jurisdictions are split on the issue of whether an injured illegal alien can recover "lost United States wages".

The following courts held that the answer is no: the New Hampshire Supreme Court; a U.S. District Court in Kansas; the U.S. Middle District of Florida; and, the Second Department of New York Supreme Court’s Appellate Division.

The following courts held that the answer is yes:  the Fifth Circuit (in a case that pre-dated a seminal U.S. Supreme Court which ruled that undocumented workers could not recover damages on an award from the National Labor Relations Board); the U.S. District Court in the Southern District of New York (construing New York law); and, the First Department of the Appellate Division of the Supreme Court of New York (note the contrast with the other New York state court, above).

Stipulating to liability

Defendants don’t usually stipulate to liability, and it goes against our nature as defense counsel. But maybe we should consider it more often, especially when it’s likely we’ll only be able to tag a plaintiff with a small percentage of negligence. There is a big difference between a jury determining damages after hearing four days of incriminating evidence against the defendant, and merely hearing about a plaintiff’s damages without that evidence.

We just had a nasty trucking accident case down in Corpus Christi, Texas where the driver of our eighteen-wheeler decided to attempt a U-turn across four lanes of highway.

During rush hour.

In the fog.

Five cars plowed into the rig. Four of the plaintiffs settled, but we were ready to go to trial on the fifth. Opposing counsel was a very well-known, very capable trial attorney.

We had nothing on the plaintiff. She was an attractive young lady, about nineteen years old. She had no significant prior injuries or medical problems. After the accident she had significant neck injuries, had undergone a neck surgery, was looking at another neck surgery, and suffered a very noticeable scar on her neck. We might have been able to pin 5% contrib on her, on a good day. But the liability facts against us were very bad, and our driver made a bad witness, as drivers often do.

Interestingly - and luckily - the plaintiff‘s attorney had failed or forgotten to plead gross negligence and didn’t realize his mistake until pleading deadlines had passed. In Texas the case law is pretty clear that if gross negligence is not pleaded, and if the defendant stipulates to the negligence of the employee and to course and scope of employment, the plaintiff cannot proceed with allegations of independent acts of negligence against the defendant. This knocks out the plaintiff’s claims of negligent hiring, negligent training, negligent retention, and negligent entrustment - in other words, all of the really inflamatory evidence.

So we stipulated to liability and to course and scope of employment. It took the fire out the case. We filed motions in limine and strong supporting briefs to exclude all evidence of the defendant’s negligence. We filed motions to strike expert witnesses. We limited the case to what would be at most a half-day trial on damages.

The case settled for what we consider a bargain, considering the venue, the talent of the opposition, and the bad liability facts.