March 19th, 2019

Appellate Court: Notes of “IME” “Watchdog” are Privileged

The fact that I used quotes on two different words/acronyms is, to be fair, a lousy way to start. But this New York appellate decision yesterday is important in any personal injury litigation because it goes to this essential question for plaintiffs’ lawyers: Would you allow your client to have an unrecorded deposition and physical exam with an agent of the defendant?

Regular readers know I’ve written often about medical-legal exams — those exams that defendants are entitled to when claimants place their medical condition at issue in a lawsuit. The courts errantly refer to these as Independent Medical Exams (IME), though they are far from independent. (See: Is the “Independent” Medical Exam Dead?, and Dear Judge Smith — You gotta be kidding me.)

There are a number of frequent flyer doctors that will do 1,000 or more of these per year for insurance companies, with predictable results. They were the source of a series I did in 2013, with many exams lasting little more than a few minutes at best. (See: Premature Evaluations – The Evidence on Quickie Medical-Legal Exams)

And because these exams are anything but independent, and the doctors so heavily dependent on insurance company money, it’s the custom of plaintiffs’ lawyers to send along an observer, a chaperone, a watchdog, of some kind.

The problem of skewed exams became so great that a cottage industry was born with a company, IME Watchdog, being born for the express purpose of sending along an observer to take notes.

As a puppy lawyer I used to attend these with some frequency since I was not going to try the case. If the doctor lied about something obvious — claiming the exam lasted longer than it did, for example, or falsely claiming that the client made some comment about his condition or how a collision occurred — the observer would be able to take the stand in rebuttal and dispute what the doctor claimed happened in that exam room. The person being examined is, after all, quite preoccupied by being probed and tested and can’t sit there and take notes.

With that way-too-long introduction, we turn to the decision of the First Department yesterday in a matter of first impression: Can defense counsel use discovery to gain access to the notes take by the observers’ and take their depositions. Lower courts had mixed answers to that discoverability issue.

But that issue was laid to rest yesterday in a unanimous appellate decision in Markel v. Pure Power Boot Camp. And that answer is emphatically no.

The court first observed that “No special or unusual circumstances need be shown in order for the IME observer to be present during the examination.”

While the “information contained in the IME observer’s notes and other materials are not protected by either the attorney-client or work product privileges” there is still the qualified or conditional privilege of material prepared for litigation under CPLR 3101(d)(2).

The observer is there as an agent of plaintiff’s counsel in order to assist in the preparation of the case for trial, and that includes cross-examination of the hired guns that insurance companies routinely use.

The only way of circumventing this is by showing a “substantial need” for the discovery and that without “undue hardship” the requesting party is unable to obtain the substantial equivalent by other means.

Except that defendants can’t show that because they have doctors in the rooms taking their own notes.

A final note: The court stressed that, “An important consideration in the Court’s analysis is plaintiff’s representation that the IME observer will not be testifying at trial on plaintiff’s affirmative case.”

The representative, of course, is not hired to be there for the affirmative case, but to be available for rebuttal in case the doctor makes up some cock-and-bull story about what happened or what the doctor claimed that the plaintiff.

This is all the more important since the courts barred people from actually recording the exam, which would have done a helluva lot more for keeping the doctors honest that allowing observers.

And to those judges that may be reading this, please stop using the phrase Independent Medical Exam. You’ve got a legitimate choice between Defense Medical Exam or simply medical-legal exam. And former Chief justice Jonathan Lippmann agrees with me. In Bazakos v. Lewis he wrote in a dissent:

“[t]hese exams, far from being independent in any ordinary sense of the word, are paid for and frequently controlled in their scope and conduct by legal adversaries of the examinee.

 

March 8th, 2019

Labor and Immigrants and Injuries, Oh My!

Building the Empire State Building

This piece is about the importance of New York’s Labor Law for people who work at heights, but it starts in faraway Boston. It starts there because the story from the Boston Globe is shocking, and it should wake folks up to what goes on behind the scenes.

The basic story is simple enough: Jose Martin Paz Flores had a job taping drywall for Tara Construction. He fell off a ladder and broke his femur in March 2017. The injury required immediate surgery. 

“But Paz — a father of five — could not get compensation for that injury because the company’s workers’ compensation insurance policy had lapsed.”

What to do? The owner of Tara Construction, Pedro Pirez, decided to make the problem go away. Because the worker he hired — that father of five –was undocumented.

So he called a relative of his. Who was a detective on the Boston Police Department. Who gave the issue to a sergeant. Who is on the joint ICE/Boston Police task force. Who called ICE.

Then the wonderful Mr. Pirez — who his lawyer says is really “a nice guy” — called in his injured worker to give him $500 to help him along. At which time he was arrested by ICE. In front of his screaming 2-year-old child.

And that’s how Mr. Nice Guy tried to make his little insurance problem go away.

Each year in Albany there are people who want to weaken our Labor Laws, which provide for absolute liability in favor of workers who are injured on the job site when they’re working at heights, if a safety regulation is violated.

And each year there are construction and real estate concerns screaming that the liability should be shared if the worker was comparatively negligent.

The problem with that argument, as exquisitely laid bare in the Globe story, is that workers don’t exactly control the workplace. There are a million ways a boss can retaliate against someone — not just against the injured worker but against a witness to an accident that might be helpful for the injured worker.

Does one guy really want to suffer at the job site to support his injured co-worker when his primary obligation is support his family and pay the rent?

While the Globe story goes on to cover different aspects of the complaint eventually made by the Department of Labor, and retaliation and OSHA, the underlying story of the vulnerable situation of workers is what interests me.

Oft times, these folks are at the complete mercy of their “nice guy” employers.

And so, if you happen to be a legislator that’s reading this little corner of cyberspace, when the contraction lobbyists come a calling to weaken our safety laws, I hope you’ll remember the powerless position of so many people that risk their lives to put up the buildings that we work and live in.

 

February 25th, 2019

Words You Should Never Use

Over the weekend, W. Virginia Chief Justice Beth Walker tweeted out a list of words that are banned from her opinions. It’s a good list, and one that all lawyers should note, as these words don’t belong in briefs either.

I’ve written before about crappy legal writing, from both the bar and the bench. It’s not that concise writing will necessarily win your client’s case but that at least your arguments can be appreciated. Far worse than writing a losing argument is writing an argument that isn’t even read because it makes the eyes glaze over.

Lawyers are (in)famous for cluttering our letters and briefs with pretentious, and wholly unnecessary, language, thereby distracting from the point.

A good quote to keep in mind is this gem that legal guru Bryan Garner tweeted out many years ago:

“Some of the worst things ever written have been due to an avoidance of the ordinary word.” — Henry Bett

A simple and favorite example from Garner of cluttering language is the humble transmittal letter that says, “Enclosed please find…” as if the recipient must go hunting for something.

My personal favorite are the openings to attorney affirmations that declare the writer is “duly admitted” to practice law. Is there any other kind of admission to practice other than duly?

Without further ado, these are the words that CJ Walker has banned, and with a follow-up of a few additional suggestions that came in response via Twitter. Rather than seeing that list buried in the billions of other Twitter messages, I preserve them here for easy access.

And now some others from her commentariat:

  • duly
  • utilize
  • at bar
  • impacted
  • heretofore
  • the undersigned

Since the function of an advocate it to tell a story to engage the reader and persuade, and the use of the stilted legalese distracts from that goal, the conclusion should be obvious. But, for some reason, it continues on.

 

February 15th, 2019

Quick! Start the Internet Shame Game!!!

We see it almost every week on the interwebs, with someone having possibly done something wrong/stupid and having their name and reputation blasted to smithereens in a nanosecond.

A full investigation and uncovering of facts would come later that might support, or not, or leave ambiguous, the initial onslaught.

Now keep that thought in mind as I turn to an extraordinary piece in The New Yorker by Robert Caro, who wrote the incredible biography of master builder Robert Moses, The Power Broker, and is currently working on a five-book biography of Lyndon Johnson. Four volumes have already been published.

Caro reveals his secrets as to how he gets the good stuff. He starts off with some wisdom he learned at his first job as a reporter, for Newsday:

“Turn every page. Never assume anything. Turn every goddam page.” 

To those accustomed to forming opinions based on Twitter headlines, this will make you very unhappy.

At the Johnson Library in Austin, Texas there are forty thousand boxes of documents. Forty thousand.

The way things worked, you’d fill out a slip for the boxes you wanted, and in an hour or so an archivist would arrive in the Reading Room wheeling a cart with the boxes on it, and put them on a cart next to your desk, each one landing with an impressively, and depressingly, heavy thud. There was room on the cart for only fifteen boxes, and I always requested more than fifteen, so that when I returned a box and a gap appeared on my cart it would be quickly filled.

Over time he pored through thousands of boxes of raw documents to find out how Johnson was able to rise quickly in power from his position as congressman.

And the same attitude toward turning every page to find out the story went toward interviewing people from Johnson’s hometown in Hill Country west of Austin. He realized that, in talking to them, he really didn’t understand them. There was a cultural divide.

Reporters during Johnson’s presidency went out there they’d stay for a few days, maybe a week, and then leave. Caro decided to stay there for most of three years as he commuted back and forth to the Johnson Library 40 miles away in Austin.

Living there was the best way to win the confidence of Johnson’s old family and friends and to understand Johnson’s youth. Caro does the hard work.

As soon as we moved there, as soon as the people of the Hill Country realized we were there to stay, their attitude toward us softened; they started to talk to me in a different way. I began to hear the details they had not included in the anecdotes they had previously told me, and they told me anecdotes and stories that no one had even mentioned to me before—stories about a Lyndon Johnson very different from the young man who had previously been portrayed: about a very unusual young man, a very brilliant young man, a very ambitious, unscrupulous, and quite ruthless person, disliked and even despised, and, by people who knew him especially well, even beginning to be feared.

Lawyering, or at least good lawyering, is often like that (without the three years of living on site part). It isn’t the shoot first and ask questions later that you might see in Twitter rages against the latest demon of the day. It’s about uncovering as much evidence as you can to see what it reveals.

Go read Caro’s piece. It’s fascinating. Then maybe reevaluate the real relevance of the trashy comments of the day as to what they really mean.

How many of them followed the lesson that Caro learned long ago?

“Turn every page. Never assume anything. Turn every goddam page.” 


 

February 14th, 2019

Cuomo Signs Child Victims Act for New York

Today New York joined the growing list of states that allows victims of child sexual assault to come forward and bring suit for that assault, even if the attack is decades old. The law will also extend the statute of limitations on criminal actions.

On the civil side, the Child Victims Act will allow people to proceed up to the age of 55, where they claim that they were sexually assaulted as kids.

On the criminal side, the statute of limitations won’t start to run until the child has turned 23.

But the time to bring civil suits comes with a narrow window of 12 months.

The twin problems, as widely discussed in the press, is on the one hand the human desire to suppress traumatic memories because they are so painful. Such suppression may occur when the alleged assailant is an otherwise trusted individual such as clergy, family, friends or educators. This allows the statute of limitations to slip by.

The other problem, of course, is trying to prove that the assault actually happened long after witnesses and physical evidence may have vanished, and memories may have dimmed. Or that if it happened, it happened as described by the complainant.

Anybody who watched the Senate hearings to confirm Justice Kavanaugh (or Justice Thomas before that) knows how tough it is to sort through old evidence.

The legislative details of the bill are here.

The law had long been sought by Assembly Democrats in Albany, but was blocked by Republicans that controlled the Senate. With the blue wave that swept the nation this past election, the Democrats took possession of the Senate and the bill has sailed through.

The law will become effective six months from signing (today, February 14) and then run for one year. This time lag will give the judiciary time to examine the law and prepare for new cases and, one might expect, for a variety of continuing legal education classes to pop up for lawyers about how to handle them.

One should expect that, in mid-August, a flurry of new lawsuits will be brought under the new legislation.