An article on Medicare Reimbursement Problems was recently published in For the Defense. One of the authors has a copy of the article posted on his firm website. The article details the issues, but unfortunately no easy solution is offered. The authors say that for now, the "only workable solution" is to put money in reserve for the estimated Medicare reimbursement.
The DC Superior Court is implementing new fast track Scheduling Orders this fall for car accident cases only. The fast track is identified as "V" for "vehicle." Key changes: 1. For all car accident cases, the Pretrial Date and the Mediation Date will be set at the Initial Status Conference. Accordingly, TRIAL COUNSEL's calendar must be available to whomever is attending the Initial Status Conference (given that trial counsel MUST attend the Pretrial Conference). Whoever attends the Initial Status Conference needs to have the trial counsel's calendar and must be able to interpret the calendar on the fly. 2. Track V1 and Track V2 are the same as the current Track 1 and 2 cases. Track V1 Fast and Track V2 Fast will be used for cases where no summary judgment will be filed. If you think that there is ANY possibility that you may file such a Motion, you SHOULD NOT agree to one of the Fast tracks. The Court will be very reluctant to grant a continuance or reschedule Pretrial Conferences. A compelling reason will be needed to obtain Track 3. 3. Please note that under the new procedures, there is very little time for a Rule 16 meeting and preparation of pretrial materials between Mediation and the Pretrial Conference. Specimen Track "V" scheduling orders are Download specimen_track_v_scheduling_orders.pdf .
Continue reading "DC Superior Court to fast track auto cases" »
SCR 5 has been changed with regard to when a Certificate Regarding Discovery is to be filed. Now, it is only to be filed when a motion relating to discovery is filed, and the certificate is to detail all the discovery to date as of that time. SCR 16 has been changed to make mandatory the attendance at pretrial conferences any persons whose presence is necessary to settle a case, unless excused. The old rule allowed availability by phone. Download order_amend_scr_civil_5_and_16_082107.doc
Ted Frank at Point of Law was early to recognize the import of the May 21, 2007 decision in Bell Atlantic v. Twombly, 127 S.Ct. 1955 (2007). A longer look at the decision was taken in Dodson, Pleading Standards After Bell Atlantic Corp. v. Twombly, 93 Va. L. Rev. In Brief 121 (July 9, 2007), which gives a thorough overview and will convince you that it is worth your while to read the decision. (Thanks to the SW Virginia Law Blog for the link to the Dodson article.)
It does now appear that the decision will have a major effect on notice pleading rules. As of today, the decision had already been cited around 470 times. Its effect is not going to be limited to antitrust cases. Essentially, where the previous standard was that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief", under Twombly a complaint must present enough facts to state a claim that is plausible on its face.
Defense counsel are going to have to rethink the cost benefit analysis of when it makes sense to file Rule 12(b)(6) motions. There is more of a chance of success now in light of Twombly. In particular, fraud claims and conspiracy claims that are pled without sufficient supporting facts should be candidates for a Twombly motion. Also claims for punitive damages that are not supported by plausible factual allegations should be attacked at the outset of the litigation with a Twombly motion.
Surprisingly, the first decision from the D.C. Court of Appeals to cite Twombly did so in the context of a motion to strike affirmative defenses and counterclaims under Rule 12(f). See Franco v. National Capital Revitalization Corp., No. 06-CV-645 (July 12, 2007). As that opinion suggests, Twombly may also require changes in the way that affirmative defenses, counterclaims, and cross-claims are pled.
Tips recently provided from the DC Superior Court for successful e-filing:
ü I have the proper full case number and judge having checked at www.dccourts.gov/pa
ü If I am filing in response to opposing counsel’s filing, I have checked my eService Inbox to make sure the court clerk accepted the opposing counsel’s filing before I eFile
ü I have typed “/s/” and the filing attorney’s name, applied an imaged signature, or printed the document, had it signed and scanned
ü I have named my documents appropriately on my computer (i.e. Motion for Summary Judgment, Certificate of Service, Answer, Opposition, Witness List)
ü I have included a properly completed Certificate of Service with a signature and date of service specifying who and how service was accomplished
ü I have included a Proposed Order in the efiling
ü For filings over 25 pages, I am uploading all documents attached to the lead filing in the second field and checking the merger box
ü For filings over 25 pages, I have also mailed a paper copy to the Judge
ü I have emailed the Proposed Order to the judge to the judge’s eservice box:
ü In a Microsoft Word or WordPerfect format
ü Subject line includes case number followed by case name
ü email format: judge[lastname]eserve@dcsc.gov or magistratejudge[lastname]eserve@dcsc.gov
ü I have caused service of this filing to be made
In Smith v. Hope Village, Inc., No. 05-633 (RBW)(D.D.C. Apr. 12, 2007), the district court denied the defendant's motion for summary judgment, in which the defendant had argued in part that, as a matter of law, a halfway house owes no duty to unknown parties with whom it has no relationship for harm caused by an offender previously housed at the halfway house approximately five months prior to the offender's harmful act.
An inmate named Kelly had been released from prison into the custody of the Hope Village halfway house in December, 2001. (Although the opinion doesn't say, the pleadings indicate that the date was Dec. 12, 2001). On March 7, 2002, less than three months later, Kelly was discharged from Hope Village and was placed under the supervision of the DC Court Services and Offender Supervision Agency. About five months after that, on August 6, 2002, Kelly allegedly broke into a house in Silver Spring where he shot and killed two people -- one of whom was the plaintiff's nine year old daughter.
Kelly had a long rap sheet with numerous felonies, including one involving a loaded gun.
Plaintiff brought a wrongful death and survival action against Hope Village. The theory of liability was that Hope Village was negligent in its supervision of Kelly, and as a result, the halfway house was responsible for his improper and untimely release into the community. Plaintiff alleged that Hope Village knew, or should have known, of Kelly's violations of the terms of his conditional release while at Hope Village, yet it never disciplined him.
In its motion for summary judgment, Hope Village argued, among other things, that it does not owe any legally cognizable duty to the plaintiff, or to any parties with whom it has no pre-existing relationship, for injuries resulting from Kelly's criminal conduct five months after he was discharged from the halfway house program. It also argued that there was no proximate cause due to a lack of foreseeability, and due to remoteness and superseding and intervening negligence.
In a lengthy opinion, Judge Walton rejected all of Hope Village's arguments, finding that Hope Village did owe a duty to people in the local community such as the plaintiff and her daughter, and that the question of foreseeability was for the jury. Judge Walton also reinstated plaintiff's wrongful death claim, finding that the 3 year statute of limitations under the Maryland Wrongful Death Act applied, not the shorter period of limitations under the D.C. Act.
The DC Bar's website is sporting a "Virtual Library" these days. Most significantly, it includes a lengthy treatise on the Law of Lawyering, courtesy of the law firm of Covington & Burling, described as follows:
This publication, written by D.C. Bar member David B. Isbell, is a comprehensive analysis of the D.C. Rules of Professional Conduct, which governs the ethical practice of law in the District of Columbia, as well as the attorney discipline system upholding those rules. Published 2004. Updated in part, March 2007, following amendments to the Model Rules in 2002 and 2003 and the D.C. Rules of Professional Conduct effective February 1, 2007.
This reference should be among those consulted by any D.C. lawyer researching an ethical issue.
In Chance v. WMATA, No. 240 (In the Court of Special Appeals of Maryland, April 4, 2007), the Court held that the 30 day period to file a petition for judicial review under LE Section 9-737 starts running from the date of the mailing of the Commission's order, and that the 30 day period is NOT extended by Md. Rule 1-203(c)(which provides for a three-day extension to a presribed period within which a party has a right to act when the period commences after service upon the party). Further, the opinion states that the 30 day period is in the nature of a statute of limitations and thus subject to waiver by failure of a party to raise it in the proper manner. Id., at n. 6. In short, in a Md WCC matter, the losing party gets 30 days to file the petition for judicial review, and no extra 3 days for mailing. And if the other side makes that mistake and you don't raise it properly, the defense is waived.
In this very confusing area, the best overview I have read so far is Dampf, Mediations & Settlements: Applicability of the Medicare Secondary Payer Act, Louisiana Bar J., Vol. 54, No. 3 (Nov. 2006). It is available online.
Click here for the current CMS guidelines on Workers Comp Medicare Set Aside Arrangements.
I was wondering whether any insurers would file huge subrogation claims against the Army Corps of Engineers, but I never expected the City of New Orleans to file a $77 billion claim itself.
