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Any attorney who represents clients in cases that require experts will more than likely come across delivery issues involving those experts. Who is considered an expert and whether or not his or her identity must be disclosed? Specifically, what about consulting experts that will not be a witness at trial, must his or her identity be disclosed to the other parties? In cases involving product liability, this is especially common because of the oftentimes-complex nature of the device at issue. So, what about the discovery of the identification of non-witness consulting experts “attending” the examination of the subject defective product? This article seeks to address circumstances whereby the confidential nature of consulting experts might be removed.

IMG_0791-300x200For instance, in a product liability claim where expert inspections of the product will take place, do the inspections have to be jointly conducted? Can one party insist upon taking possession of the product and conduct an inspection outside the presence of other parties? If one party and the experts take possession of the product, does that party have to disclose the identity of the expert(s) who will be involved in the inspection and handling of the product, and what will they do at the inspection?

These discover issues are governed by Rule 26 of the Alabama Rules of Civil Procedure. However, it is arguable that the specific section of Rule 26 that applies is not at all clear. The party opposed to disclosing the identity of and the work of a consulting expert may argue that:

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Lawsuits brought by veterans of the United States military against the Minnesota-based company 3M have been consolidated into a multidistrict litigation (MDL) in the United States District Court for the Northern District of Florida. Various venues across the country were considered. Ultimately, the Judicial Panel on Multidistrict Litigation (JPLM) chose the Northern District of Florida as the home for the 3M Combat Arms Earplug litigation. The case has been assigned to the Honorable M. Casey Rodgers, a veteran of the United States Army.

The cases that will be transferred to the Florida MDL involve 3M’s Combat Arms Earplugs. These dual-ended earplugs were designed and manufactured for use by the military. The earplugs were issued to service members from 2003-2015. Because the earplugs would loosen in the user’s ears while being worn, they were not effective at reducing the level of sound, and ultimately caused permanent hearing loss and/or tinnitus.

The attorneys at Hollis, Wright, Clay & Vail, P.C. have extensive experience handling claims involving MDLs across the country. If you were a member of the military between 2003 and 2015, were issued dual-ended earplugs, and suffered from hearing loss and tinnitus, you may qualify for compensation. This lawsuit is not against the government or armed forces and does not affect disability benefits.

IMG_0821-300x200Most people know that a lawsuit begins with the filing of a complaint followed, in most cases, immediately by the filing of an answer. Universally referred to as “pleadings,” these legal documents serve as the parties’ first formal written statements setting out either the claims against or defense to another party’s claims in a civil action. What is not universal, however, is the requirements for parties and lawyers when bringing these actions. Depending on the court in which they are filed, claims being asserted, and available defenses, the pleading standard can vary tremendously. For example, for litigants bringing cases in United States Federal Districts Courts, the pleading standard requires that the complaint must set forth at least “enough facts to state a claim for relief that is plausible on its face.Ashcroft v Iqbal, 556 U.S. 662 (2009). For litigants in Alabama State Courts, however, the pleading requirements are materially broader and far less scrutinized when compared to the federal standard. While Alabama’s liberal pleading standard simplifies the process for bringing actions, it can potentially create major problems on the back-end of a case for lawyers with their clients.

Often referred to as a “notice” or “no-set-of-facts” pleading standard, complaints in Alabama are merely required to include “a short and plain statement of the claim showing the pleader is entitled to relief.” Ala. R. Civ. P. 8 (a). Over time, this culture of pleading the bare minimum has, in many cases, lead to minimal review and response from the other party. Despite routine compliance with the minimal pleading standard, such a lackadaisical approach often results in the neglect of important requirements set out in other rules of civil procedure.

The standard and requirements for civil pleadings in Alabama are, in large part, governed by Alabama Rules of Civil Procedure Rules 8 and 12. Pursuant to Rule 12(a), once served with a summons and complaint, a defendant  has 30 days to file a responsive pleading. Under Rule 8, a party’s failure to respond to or deny any averment raised in the Complaint, other than those of damages, amounts to an admission of those claims. Given that the vast majority of answers are timely and amount to a blanket denial to everything raised in the complaint, these two requirements are largely inconsequential. Often overlooked by practitioners, however, are the requirements for raising certain defenses and, more importantly, the consequences for failing to do so.

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Any attorney that represents injured children has to consider the question of who has standing or the right to bring the claim on behalf of the injured child? Are the incurred medical expenses the parents’ claim or the minor child’s claim? And, what adult or person should serve as the representative for the minor child? These are just some of the many questions that arise in the context of an attorney’s representation of an injured child.

While the above questions will depend upon the state in which the injury occurred, this article focuses on Alabama law and how it views these issues. Essentially, Alabama allows the parent or the person representing the minor child to elect who makes the claim for medical bills, past and future, during the minority years. The parent, who likely incurred the medical bills, can bring the the claim in their individual capacity or, the parent can waive their right to bring the claim individually in favor of simply allowing the minor to pursue the claim through their representative.

The issue was first addressed in Cabaniss v. Cook, 353 So. 2d 784 (Ala. 1977); see also, Broughton v. Kilpatrick, 362 So. 2d 865 (Ala. 1978) (affirming the holding in Cabaniss one year later by reversing the trial court when it did not allow the introduction and admission of medical expenses on behalf of a minor suing by and through his mother as next friend). The Cabaniss Court directly addressed the issue of whether a minor child has the right to pursue medical expenses through a representative as opposed to the parent  pursuing said damages individually. In Cabaniss, Warren Cook, and unemancipated minor, sued by and through his father as next friend, for damages arising out of an automobile accident. Cabaniss at 785. In the Cabaniss opinion, the Court noted:

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If you have ever had a personal injury claim that has resolved either through a settlement or a verdict, the attorney handling your case likely told you that a portion of your settlement would have to be used to pay back your health insurance company for the medical bills they paid relating to your injuries. This process is call subrogation and can have a major impact on your personal injury case.

For the purpose of this post, we will be discussing how subrogation works in the context of medical bills that have been paid by private health insurance companies, such as BlueCross BlueShield or Humana. However, it is important to note that the subrogation process applies, not only to private health insurance companies, but also to government entities such as Medicare, Medicaid, Tricare or any other entity that pays to satisfy your medical bills, which then make the basis of your personal injury claim, including hospitals. Furthermore, in regards to governmental entities, a failure to protect their subrogation interests can result in significant penalties to all individual attorneys and/or parties that impaired the governmental entity’s right to get reimbursed. Therefore, the attorney handling your personal injury claim should be aware of which entities are paying your medical bills, so they can make sure to properly protect their subrogation interest.

Here is generally how the subrogation process works as it relates to private health insurance companies: When you sign up for health insurance, you sign a contract with the health insurance company, which provides that, in exchange for you paying a monthly premium, the health insurance company will pay your medical bills when you seek medical treatment. However, that contract contains a paragraph stating that your health insurance company is entitled to seek repayment for the medical bills they paid, if you use those medical bills as a basis to recover from a third party. The idea is that your health insurance company would not have had to pay your medical bills if it weren’t for the wrongdoing of the third party, so your health insurance company is entitled to be reimbursed what it paid.

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Beginning November 2017, Alabama motorists should be prepared to incur stiff penalties if they are caught without liability insurance on the state’s roadways. Although Alabama motorists have been required to carry liability insurance on their vehicles since the Alabama Mandatory Insurance Act was initially passed in 2013, the Alabama Legislature recently enacted a bill which gave the Alabama Law Enforcement Agency a procedure to levy civil penalties against drivers found to be in violation of the previously enacted Alabama Mandatory Insurance Act. The bill, which was passed by the Alabama Legislature in 2016, gave drivers a grace period in an effort to allow motorists time to obtain proper coverage.

With the grace period expiring on November 1, 2017, all motorists are now effectively responsible to be properly insured when taking to Alabama roadways. Applicable fines include the following:

  • $200 for the first offense,

dengaras-snarling-dogWhile most Americans, including Alabamians, love their dogs and generally consider them part of the family, it is important to remember that dogs are still classified as animals. And being animals, as well as descendants of wild animals, dogs are capable of unpredictable and violent behavior. In fact, some 47 million Americans per year are bitten by dogs, half of whom are children between the ages of five and nine years old. Some 9,500 people per year are hospitalized due to the seriousness of their dog bite injuries. In addition to dog bite wounds, dog attacks can result in sprains, broken bones, lacerations, infections, and many other health and medical issues, including death.

In Alabama, there are several ways in which you can recover when you suffer injuries as the result of a dog bite. However, the two primary theories of liability are either statutory, under Alabama’s Dog Bite Statute (Ala Code § 3-6-1 et seq) or through Alabama’s common law, under general negligence principles.

Liability Under Alabama’s Dog Bite Statute 

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The U.S. Judicial Panel (JPML), a separate body within the Federal Court System, has granted the plaintiff’s second motion for consolidating Proton Pump Inhibitor (PPI) drug claims to Multidistrict Litigation (MDL). This allows the plaintiffs to consolidate the cases that allege PPI drugs caused kidney disease in those who used them. The benefit for plaintiffs is that the consolidated action will expedite the overall process, prevent duplicate discovery, and reduce a backlog in the court system.

The PPI drugs at issue include four prescription drugs: Prilosec, Nexium, Protonix, and Dexilant; and three over-the-counter drugs: Prilosec OTC, Prevacid 24-hour, and Nexium 24-hour. Plaintiff’s allege these PPIs cause kidney injuries, which include acute interstitial nephritis, chronic kidney disease, and end-stage renal disease. This type of drug first received FDA approval in 1989.

The suits, citing a host of studies, claim the manufacturers of the PPI drugs (the defendants) should be held liable and accountable for the damage caused to patients while taking said drugs. Furthermore, the defendants should take financial responsibility for failing to warn consumers of the potential health issues related to PPIs.

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Any attorney who has ever litigated a personal injury claim has heard the legal standards “reasonable degree of medical certainty” or “reasonable degree of medical probability.” Further, attorneys understand and appreciate that the plaintiff has the burden of proving that the claimed injuries were caused by the underlying events in compliance with these standards. However, what do the standards mean and what is required? In essence, the standards require that it is more probable than not, or more likely than not, that the claimed injuries were caused by the incident giving rise to the lawsuit. Typically, a qualified medical doctor or medical clinician will have to testify on this issue.

In many circumstances where medical causation is in dispute, the defendants may respond or defend the case by asserting that the claimed injuries were not caused by the underlying incident, or were in fact caused by some other, unrelated event. The question becomes: What legal standard applies to a defendant desiring to make this argument and admit evidence in furtherance of same. Can the defendant introduce “possible” alternative causes? Does the defendant have to present medical evidence or testimony within a reasonable degree of probability to be able to introduce the evidence before the jury?

These questions are often raised and debated in many personal injury cases throughout the State of Alabama and around the country. While the issue may be addressed or handled differently among the jurisdictions, the better practice should be to hold the defendants to the same standard of admissibility as the plaintiff. Under no circumstances would an Alabama trial judge allow a plaintiff to present medical testimony indicating that his injuries were only “possibly” caused by the incident. If this were the testimony in the case, the defendant would undoubtedly file a motion in limine to preclude the plaintiff from arguing that the claimed injury was caused by the accident. Alabama law is clear that “possible causes of an injury to a plaintiff represent nothing more than rank conjecture and speculation.” Western Ry. of Ala. v. Brown, 196 So. 2d 392 (Ala. 1967); see also Hooks v. Pettway, 142 So. 3d 1151 (Ala. Civ. App. 2013); Portis v. Wal-Mart Stores East, L.P. 2008 WL 3929672 (S.D. Ala. 2008).

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It is a customary practice in any lawsuit to request that the opposing party produce any and all statements and/or recordings of your client(s). However, are these types of recordings and/or statements discoverable? Further, what procedural or technical hoops must the attorney jump through prior to trial in order to use such evidence? In the event that an attorney confronts these issues, the attorney should at the very least review the opinions of Ex parte Doster Construction, 772 So. 2d 447 (Ala. 2000) and Ex parte Weeks, 810 So. 2d 661 (Ala. 2001).

In Doster, the Alabama Supreme Court addressed two issues. First: Is the existence of a surveillance videotape discoverable, and if so, at what point? Pursuant to Rule 26(b)(1) and (3), the Court answered that the mere existence of the videotape is discoverable but stated that the trial court has the discretion under Rule 26(d) to control the timing of the disclosure if it would promote truthfulness by the party/claimant seeking the disclosure in a deposition and/or in responses to other discovery requests. Second: Is the actual surveillance videotape discoverable? The Court held that generally such a videotape is not discoverable pursuant to Rule 26(b)(3), because such a tape would constitute “materials prepared in anticipation of litigation or for trial.” However, such a tape would be discoverable by a showing of “substantial need and an undue hardship in obtaining the substantial equivalent by other means.” The Court said that it would be unlikely that the seeking party could satisfy the “substantial need” requirement  given that it would be difficult to establish that the party was ignorant as to what activities could have been observed. However, the Court noted that, in the event the party possessing the videotape intends to use same at trial, then, the party would be obligated to provide the opposing side a copy of the videotape within a reasonable amount of time prior to trial. This would ensure that determinations as to authenticity occur and that no manipulations of the tape were performed.

In Weeks, the Alabama Supreme Court addressed a similar issue but ruled differently. The issue in Weeks was whether the Plaintiff Weeks was obligated to disclose an audiotape of a recording between Weeks and the Defendant, Case. The attorneys for Case objected to Case being deposed prior to the Plaintiff’s attorney providing a copy of the audiotape. The trial court held that Case was entitled to a copy of the audiotape and further was entitled to same prior to sitting for his deposition. The Supreme Court affirmed the trial court decision despite the fact that the Supreme Court noted that Case did not show “substantial need.” How did the Alabama Supreme Court distinguish the facts in Weeks from Doster? First, the Court noted that Rule 26(b)(3) states that “a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party.” In other words, the audiotape in Weeks concerned a recording that was the “subject matter” of the lawsuit and/or the basis for the lawsuit whereas in Doster, the videotape footage likely involved activities that occurred well after the claim or lawsuit arose and was likely done in response to the claim/lawsuit. Secondly, the Court seemed to be motivated in favor of disclosure of the audiotape due to the stealth manner by which the Plaintiff Weeks secured the recording.