Commercial litigator joins firm

Pittsburgh, March 23, 2010 — Lyle Washowich, a commercial litigator representing clients in the financial, business and manufacturing industries, has joined the Pittsburgh law office. Mr. Washowich defends clients against common law and statutory putative class actions, consumer protection law claims, and alleged financial and other fraud charges. He represents financial organizations in mortgage servicing, purchasing and securitization claims and a wide variety of businesses, manufacturing and public sector clients in matters concerning claims of product liability, suits targeting third parties, unfair competition, tortious interference, and First Amendment and media law. A Phi Beta Kappa graduate of Allegheny College (1996) with a Bachelor of Arts degree, summa cum laude, Mr. Washowich received his law degree from Northwestern University (1999). At Northwestern, he was associate editor of the Law Review and participated in the school’s inaugural trip to Tanzania to develop a long-term research and idea-exchange partnership. Active in the Allegheny County Bar Association (ACBA), Mr. Washowich serves on the association’s Gender Bias Subcommittee and Women in the Law Division Professional Development Committee.

Transportation Group’s Christine Hardy wins defense verdict for Major Railroad Client

March 23, 2010 – Christine Hardy was successful in obtaining an arbitration award in favor of a major railroad client in the U.S. District Court for the Eastern District of Pennsylvania. The plaintiff, a 35-year-old railroad worker, sued the defendant under the Federal Employers’ Liability Act (FELA) demanding $40,000 in damages for bilateral carpal tunnel syndrome. During closing arguments, Mrs. Hardy argued that the defendant provided the plaintiff with a reasonably safe work environment. The court determined that the plaintiff failed to prove negligence.

Three attorneys join firm

Pittsburgh, March 1, 2010 – A new member (partner) and two associate attorneys have joined the Pittsburgh office.

Jeffrey A. Jackson of Sewickley, Pa., is a member practicing in the firm’s Litigation and Transportation groups. He is a trial lawyer and former prosecutor with an extensive national practice focusing on occupational injury matters. Jeff has successfully litigated cases in state and federal courts across the country, while also counseling clients on risk avoidance of occupational injury claims and litigation. A Bachelor of Arts graduate of the University of Notre Dame, Jeff received his law degree from the University of North Carolina at Chapel Hill.

Associate Nichole Humes of Mt. Lebanon, Pa., joined the Litigation group’s Insurance Defense team. Previously, she was a litigator for a Chicago, Ill., firm where she represented municipal, construction, and transportation clients. Nichole received her law degree from Duquesne University and her undergraduate degree from The Pennsylvania State University, where she was a two-time recipient of the Clayton A. Schug Award for Excellence in Forensics.

Stephanie Solomon of Plum, Pa., is an associate working in the firm’s Litigation group, specifically defending professional malpractice and commercial cases. Stephanie received her undergraduate and law degrees, cum laude, from Duquesne University. She was a staff member of the Duquesne Law review. An avid runner, Stephanie has participated in the Nike Women’s Marathon for which she raised funds for the Leukemia Lymphoma Society. She also volunteers in the firm’s Beginning with Books reading program in the Pittsburgh schools.

Insurance Bad Faith Case Law Update

By: John B. Cromer, Esq.

In an important procedural case, The Hon. R. Stanton Wettick, Jr., of the Court of Common Please of Allegheny County, in Wutz v. Smith, revisited issues that were decided in the Gunn v. Hartford case, which was also heard by Judge Wettick in 2008. In Gunn, the court had to determine issues surrounding a court case brought for underinsured motorist benefits (no longer in arbitration) and a related bad faith claim. The insurance carrier sought to preclude discovery on the bad faith claim while the UIM claim proceeded. Judge Wettick, in Gunn, determined that while the bad faith claim may be dependent on the outcome of the UIM claim, a stay was not in order for the bad faith claim discovery because of reasons of judicial economy and due to the fact that, in State Court, the bad faith claim would be heard by and decided by the trial judge which could occur immediately after the jury renders a decision on the UIM claim. In effect, Judge Wettick ruled that there was already a severance of the claims and a stay on discovery was not warranted. An appeal on this issue was quashed by the appeals court as premature.

In Wutz, decided on September 9, 2009, Judge Wettick was faced with a similar issue involving State Farm and a UIM claimant. The argument for a stay of discovery on the bad faith claim focused on the insurance carrier having to reveal information as to the value of the UIM claim and the decisions and strategies on the handling the UIM claim before it was to be tried before a jury. In effect, State Farm argued that having to produce this discovery for the bad faith claim is akin to showing the other team your playbook before the game takes place. Judge Wettick agreed and ruled that the discovery need not occur until after the UIM claim goes to the jury.

The immediate result of the Gunn and Wutz decisions appears to be that the particular disputes in the UIM and bad faith case will determine whether bad faith discovery will be allowable while the UIM claim proceeds forward.

Also this summer, in the Eastern District of Pennsylvania, a decision was rendered in which Allstate prevailed on a Motion for Summary Judgment. Allstate was sued by an insured claiming an unreasonable delay in the processing of an uninsured motorist claim, the making of an unreasonable settlement offer, and the general unfairness of Allstate’s actions in their entirety, including using an unfair doctor and arbitrator. Upon the filing of a Motion for Summary Judgment, the trial judge granted Allstate’s Motion and dismissed the case, finding that there was no “bad faith” in the alleged actions and that Allstate’s actions had a reasonable basis in fact.

On the other side of the Commonwealth, in the Western District of Pennsylvania, a decision was rendered which granted a dismissal motion filed by an insurance carrier that was sued more than two years after they sent their insurance coverage denial letter. The court held that a cause of action for statutory bad faith begins to accrue when the insurer first provides definite notice of a refusal to indemnity or defend. Since it was clear that the insurance notice was sent more than two years before suit was filed, the case was dismissed.

Burns White has an experienced litigation department that is experienced in defending insurance bad faith claims. For more information on any of the cases discussed above, or for a review or evaluation of your particular issue, please contact attorney John B. Cromer at 412-995-3000.

Podcast – Medicare Attorney Talks About Medicare Compliance & Railroad Industry

From the Legal Talk Network – podcast available featuring Burns White Medicare attorney Benjamin Basista: “As of January 1, 2010, there will be new rules pertaining to Medicare compliance. In this edition of Ringler Radio, host Larry Cohen welcomes Attorney Benjamin M. Basista to look at the new rules regarding Medicare compliance and how they relate to the railroad industry. Larry and Ben will explore the Medicare reporting process, the issue of medical liens and how it all relates to the railroad industry.”

Go to the podcast.

Genuine Science or Unscientific Speculation Offered by a Genuine Scientist?

By: Edwin B. Palmer, Esq.

COURTS APPEAR TO BE TAKING A FIRM LINE AGAINST EXPERTS WHO OFFER OPINIONS IN TOXIC TORT CASES WITHOUT CONSIDERING EXPOSURE LEVELS

Cancer, toxic brain injury, manganism, multiple chemical sensitivity, mixed dust injuries. The toxic torts landscape is continually broadening as those developing and advocating this ever-expanding list of new causes of action grow increasingly bold in attempts to capitalize on the public’s concern with environmental issues and post-Enron suspicion of corporations. Often, private toxic torts lawsuits are not the product of strong causation or evidence of harm, but are instead the result of the “me, too” response to the widespread publicity these lawsuits generate. These lawsuits are increasingly propagated by litigation-generated “science” and are funded and initiated for the purpose of perpetuating the litigation and overcoming Daubert/Frye admissibility limitations and, ultimately, taking the case to a Jury.

It is well-established that in any negligence action, with regard to claims of physical injury or impairment, expert medical testimony is necessary to establish the causal nexus of the injury to the alleged tortious conduct in those cases where the connection is not obvious and is beyond the knowledge of the average layperson.1 The need for expert medical testimony is particularly acute in toxic tort litigation where the plaintiff is typically alleging an illness that develops years, if not decades, after exposure to a toxic substance. In toxic tort cases, expert testimony is necessary to establish both that the substance at issue is capable of causing the particular condition or injury alleged and that the Plaintiff was exposed to that substance at sufficient levels to cause the individual’s particular injury.

Despite these clear mandates, it is not uncommon for plaintiffs and experts advocating on their behalf to completely ignore the requirement that they document their client’s exposures levels. On other occasions, experts attempt to advance their conclusions based on questionable science that fails to employ scientifically valid methodology. Despite these attempted short cuts, as several recent Court decisions show, the Judiciary continues to take seriously its “gatekeeper” obligation to keep “junk science” out of the courtroom.

In re: Toxic Substance Cases (Pennsylvania)

In August 2006, Judge Robert Colville of the Allegheny County Court of Common Pleas issued a lengthy opinion addressing the admissibility, under Frye, of the testimony that each plaintiff?s exposures to the defendants? asbestos-containing friction brake products was the proximate cause in the development of the plaintiff’s asbestos-related disease.2 This conclusion by plaintiffs’ experts was essentially based on the premise that “every single exposure to every asbestos product is a proximate cause of a subsequently diagnosed asbestos-related injury.”3 The Court’s inquiry in this matter revolved around the issue of dose, namely: “how much greater quantity of exposure [to asbestos above ambient background levels] is necessary to permit the causal attribution of an asbestos-related disease to a particular asbestos exposure.”

In evaluating the admissibility of the proffered testimony under Frye, Judge Colville was skeptical of the experts’ reliance on case reports, noting that “case reports are nothing more than reports by other physicians and professionals confirming the development of a disease in an individual patient with additional information about that patient.”5 In the opinion of the Court, case reports, standing alone, cannot support causal attribution as they “only report associations – causal correlations. Sometimes an association exists because there is a causal correlation. Sometimes associations exist because there is a coincidence, and nothing more.”6 Rather, the scientific method must be employed to distinguish “coincidental associations” from “causal correlations.” Short of empirical verification, reliance on case reports is an insufficient basis to meaningfully support a causation opinion.7

The Court next addressed the crux of plaintiffs’ experts’ theory “that an asbestos-related disease dose response curve applies even where there is a vanishingly small exposure.”8 The Court, relying on “common sense” and “common experience” rejected the “extrapolation down” theory posited by plaintiffs’ experts:

[w]hile it may be a valid assertion that: if high dose asbestos exposure is bad for you, then low dose asbestos exposure may potentially be bad for you; it is not a valid assertion that because high dose exposure to asbestos is bad for you, then low dose exposure to asbestos is, in fact, bad for you or that a specific plaintiff’s exposure at an unknown low dose exposure level, in fact, contributed to that plaintiff’s asbestos-related disease.9

In sum, “dose response curves, based upon generally accepted scientific methodology, for “low dose” exposures – simply do not exist.”10 Because generally accepted scientific methodology at the time of this case was not able to demonstrate the effect of low dose exposures on the body, plaintiff’s experts opinions were merely the doctors’ “best guesses” unverified by generally accepted methodology.

The Court left open the possibility that the outcome would be different if plaintiffs’ experts had presented biological findings to support their claims, or quantitative evidence of “high dose” exposure. However, at no point, did the experts attempt to “meaningfully quantify the actual or even approximate amount” of the plaintiffs’ asbestos exposure, nor do they “attempt to delineate a threshold exposure, or even a potential range for a threshold exposure” that they believe would be required to support causation.11

Parker v. Mobil Oil Corporation (New York)

In 1999 Eric Parker, a gas station attendant commenced a lawsuit against Mobil Oil Corporation and other gas companies alleging that exposure to benzene in gasoline caused him to develop acute myelogenous leukemia (AML). Parker contended that during his 17 years of employment at several full-service stations, he was exposed to benzene on a daily basis through inhalation of gasoline fumes and through skin contact with the gasoline.

In support of his claim, Plaintiff retained two experts, an expert in occupational medicine and epidemiology, and an expert in toxicology and epidemiology. Plaintiff’s occupational medicine physician noted that Parker was “frequently” exposed to “excessive” quantities of gasoline and had “extensive exposures in both liquid and vapor form.”12 Additionally, he noted that several epidemiological studies found an increased risk of leukemia in petroleum refinery workers exposed to benzene. The expert concluded that Parker would not have contracted AML in the absence of his specific occupational exposure to benzene. Plaintiff’s second expert stated that Parker had a greater exposure to benzene than workers in the refinery studies which had established an association between benzene and leukemia. Neither of Plaintiff?s experts quantified, nor attempted to quantify, Parker?s exposure to benzene from gasoline.

The trial court, while recognizing that Parker’s experts: (1) failed to cite any studies establishing a causal connection between AML and gasoline; and (2) did not quantify Parker’s exposure to benzene in gasoline, nonetheless admitted their testimony on the basis that the experts distinguished studies finding an increased risk of leukemia in benzene-exposed refinery workers from studies finding no association. Additionally, the trial court held that while the failure to quantify Parker?s exposure may require a Frye hearing in some cases where there was less exposure, it was not necessary in this matter given Parker’s descriptions of his exposures. Finally the trial court accepted the experts’ theory that “there is no threshold of exposure [to benzene] under which there will be no negative effects to health.”13

On appeal, the Appellate Division reversed. The court reasoned that as Parker’s experts failed to: (1) quantify his exposure to benzene; (2) establish a dose-response threshold; or (3) show that Parker’s exposures exceeded any threshold. As such, any conclusions as to the amount of Parker’s exposure would be inadmissible as speculative and unreliable. The Court also rejected the premise that there is no threshold of exposure to benzene below which leukemia would not occur: “the scientific reliability of th[at] methodology has flatly been rejected as merely a hypothesis.”14

On appeal, the New York Court of Appeals affirmed the Appellate Division choosing not to address the admissibility of the experts’ opinions on Frye grounds, on the basis that there was no novel methodology at issue. Instead, the Court examined the reliability of the specific methodology employed by Parker’s experts, identifying the issue as whether Parker’s experts “provided a reliable causation opinion without using a dose-response relationship and without quantifying Parker’s exposure.”15 The Court of Appeals concluded that the proffered testimony of Parker’s experts did not have an adequate foundation to be admissible.

The Court concluded that it is not always necessary for a plaintiff to precisely quantify exposure levels or use the dose-response relationship so long at the method used by the expert to establish causation is generally accepted in the scientific community. However, in the case of Parker’s experts, the Court concluded that they failed to demonstrate that exposure to benzene in gasoline caused Parker’s injury. Plaintiff’s toxicology expert’s conclusory statement – based on the Plaintiff’s deposition testimony that he had “far more exposure to benzene than did the refinery workers in epidemiological studies” was plainly insufficient to establish causation.” Because Plaintiff’s toxicologist failed to quantify the refinery workers’ level of exposure or explain how Parker’s exposure to benzene exceeded that of refinery workers, his conclusion lacked the necessary epidemiologic evidence to support his opinion.

The testimony of Parker’s occupational medicine expert was also excluded. His vague statements that the Plaintiff was “frequently” exposed to “excessive” amounts of benzene were lacking sufficient foundation to be admissible, as they could not “be characterized as a scientific expression of Parker’s exposure level.” Additionally, the doctor’s reliance on studies of refinery workers finding an increased risk of leukemia was also insufficient, as the studies failed to address the issue of whether there was any relationship between exposure to gasoline and AML.

Korte v. ExxonMobil Coal USA, Inc. (United States Court of Appeals for the 7th Circuit)

It is also clear that while precise quantification of a Plaintiff’s exposures is not necessary – as long as evidence of the Plaintiff’s exposure is scientifically and sufficiently expressed to establish causation – such evidence, where available, cannot be ignored.

In Korte v. ExxonMobil,17 Plaintiffs (husband and wife) filed suit alleging that they developed various symptoms including chronic sore throat, eye irritation and tearing, indigestion, diarrhea and fatigue as a consequence of exposures to airborne dust blown off two coal refuse disposal areas (RDAs) owned by Exxon and located less than one mile away from the Kortes’ farm. The Kortes proffered the testimony of an occupational medicine physician who opined in his report that ?it is likely that? the Kortes’ symptoms “may be caused by” their exposures to coal dust. In support of his conclusions, the expert relied on the Kortes’ account of dust exposure, their medical histories, pictures and video of dust being blown off the RDAs, and his own knowledge of the effects of coal dust exposure. Plaintiff?s expert did not conduct any medical tests, including blood tests, toxicological tests or allergy tests. The doctor conceded that he could not be certain that the dust described by the Kortes and shown in the videotape contained any coal dust. Additionally, he did not conduct any tests on the dust from the Kortes’ property, nor did he consider testing by the Illinois Environmental Protection Agency (IEPA) or Illinois Department of Public Health (IDPH) on dust found inside and outside the Kortes’ home which did not detect the presence of any inorganic compounds above health guidelines.

On appeal, the United States Court of Appeals for the Seventh Circuit affirmed the trial court’s exclusion of Plaintiff’s expert under Daubert. Fatal to Plaintiff’s cause was the fact that their expert opined as to the cause of the Kortes’ symptoms “based on the subjective beliefs of the Korte family that they had been exposed to coal dust” from the RDAs without undertaking to confirm the validity of this premise:

Plaintiff’s expert did not rely on tests conducted on dust found in or around the Kortes’ property. [He] did not know the chemical composition of the dust on the Kortes’ property, and could not verify that the dust emanated from Exxon?s RDAs. [He] also did not conduct or rely on tests measuring the amount of exposure in order to opine “whether the dose to which the plaintiff was exposed is sufficient to cause the disease.”18

Additionally, the doctor’s methodology was found lacking, as he failed to properly exclude alternative causes for the Plaintiffs’ symptoms, including Mr. Korte’s 35 pack-year smoking history, pesticides, allergies or exposures to dust containing dirt, gravel and other background levels of inorganic chemicals.

Lessons Learned – Properly Documenting Exposures

As the cases above demonstrate, as do numerous other cases not discussed herein, a failure to quantify, or even to attempt to quantify a plaintiff’s exposure to a harmful substance will most likely prove fatal to the plaintiff?s claim.19 A plaintiff’s expert must demonstrate an exposure to a quality or quantity of exposure from which a jury might reasonably infer that the plaintiff suffered an injury from the claimed exposure. At a minimum, expert testimony should include a description of the method used to arrive at the level of exposure and scientific data supporting the determination. In the absence of supporting scientific data, an expert’s conclusions are simply “best guesses.” “Guesses, even if educated, are insufficient to prove the level of exposure in a toxic tort case.”20 While Courts do not require plaintiffs to precisely quantify their exposures to a toxin, any causation opinion must be based on sufficient information concerning the level of exposure in order to be admissible.

Any expression of level of exposure must be arrived at using sound scientific methodology, and employing techniques subject to objective, independent validation in the scientific community. Reliance on anecdotal descriptions of exposure such as a plaintiff’s self-reported exposure assessment gleaned from deposition testimony, conversations with the plaintiff, or plaintiff’s counsel’s description of the plaintiff’s work activities, without consideration of independently verifiable information such as exposure data or work records, is unacceptable methodology.

Additionally, while reliance on epidemiologic literature, though not required, is generally advantageous, the studies cited must reasonably support the expert’s ultimate opinion. It should be assumed that courts will consider the scientific literature relied upon by a party’s experts, sometimes with a very critical eye.21 As shown by Judge Colville’s opinion in the Toxic Substance cases, some courts have looked at case reports with skepticism. However, even case-control studies and other epidemiologic studies will not get an expert over the admissibility hurdle if the cited literature is not reliable and does not provide an adequate basis of the expert’s ultimate opinion.22

Finally, while an exposure assessment grounded in sound science is a necessary element of proving causation, practitioners should keep in mind that consideration still must be given to other factors affecting the reliability of the expert’s methodology such as (1) the timing of the exposure in relationship to the onset of the Plaintiff’s medical condition (i.e. Did the Plaintiff’s disease develop within the expected latency period – Did the Plaintiff’s condition manifest itself before the exposure?) and (2) whether there are alternative etiologies (e.g. genetics, smoking, hobbies and other avocational exposures, etc.) that can be properly ruled out.

While the Courts in the above-discussed cases excluded the proffered expert testimony, these cases, and others, provide some insight into what exposure assessment methodologies might pass muster, including: (1) biological findings (such as high “fiber loads” or blood lead levels?); (2) consideration of documented symptoms of over-exposure experienced by the Plaintiff or his co-workers; and (3) consideration of the work processes and work facility design and whether they are likely to contribute to overexposures. Obviously, when it is available, actual exposure documentation, either from a company’s industrial hygiene testing or testing from regulatory agencies, may be the best source of exposure information. Moreover, where such evidence is available, as in Korte, it must be considered, (even if not ultimately relied upon) by the expert in arriving at his opinion. Bear in mind that employing some or all of these techniques does not guarantee admissibility if proper scientific methodology is not use and/or if the results do not reasonably and reliably support the expert’s conclusions.

* * *

In summary, while courts recognize the inherent difficulty in quantifying the exact dosage an individual plaintiff received from exposure to an individual substance, an attempt must be made to scientifically express that the plaintiff was exposed to an amount of that substance sufficient to cause the kind of harm of which he or she complains. The challenge, as the Parker Court noted, is striking a balance between “allowing unreliable or speculative information (“junk science”) to go before the jury with the weight of an impressively credentialed expert behind it . . . [and setting] an insurmountable standard that would effectively deprive toxic tort plaintiffs of their day in court.”23 The cases discussed above have struck the right balance.

_______________________
ENDNOTES

1 See, e.g., Hamil v. Bashline, 481 Pa. 256, 266, 392 A.2d 1280, 1285 (1978).

2 In re: Toxic Substance Cases, No. A.D. 03-319, slip op. (Pa. Com. Pl. Aug. 17, 2006). The case has been appealed and is presently pending before the Pennsylvania Superior Court.

3 Id. at p. 2.

4 Id. at p. 7.

5 Id. at p. 9.

6 Id.

7 Id. at p. 11.

8 Id. at p. 12.

9 Id. at p. 14.

10 Id. at p. 13.

11 Id. at p. 25.

12 Parker v. Mobil Oil Corporation, 7 N.Y.3d 434, 449 (2006).

13 Id. at 445.

14 Id. at 446, citing Appellate Division opinion, 793 N.Y.S.2d 434 (2005).

15 Id. at 447.

16 Id. at 449.

17 Korte v. ExxonMoibil Coal USA, Inc., 164 Fed.Appx. 553 (7th Cir. 2006).

18 Id. at 557.

19 See e.g., McClain v. Metabolife Int’l, Inc., 401 F.3d. 1233, 1241 (11th Cir. 2005) (To carry the burden in a toxic tort case, a plaintiff must demonstrate the levels of exposure that are hazardous to human beings generally as well as the plaintiff’s actual level of exposure to the defendant’s toxic substance before he or she may recover.); Benkwith v. Matrixx Initiatives, Inc. 467 F.Supp.2d 1316, 1328 (M.D. Ala. 2006) (“reliability of expert’s methodology is suspect if she avoids or neglects the dose-response relationship”); Matt Dietz Co. v. Torres, 198 S.W.3d 798, 804 (Tex. App. 2006) (Expert’s reliance on “heavy dusty exposure which could be seen on clothing” as proof of substantial exposure was insufficient to establish causation.)

20 Mitchell v. Gencorp Inc., 165 F.3d 778, 781 (10th Cir. 1989).

21 See e.g., Knight v. Kirby Inland Marine, Inc. __ F.3d __ (5th Cir. 2007).

22 See e.g., Id., Parker v. Mobil Oil Corporation, supra.

23 7 N.Y.3d at 447.

Superior Court puts limits on duties of insurance brokers

By: John B. Cromer, Esq.

The Superior Court of Pennsylvania issued its decision in Wisniski v. Brown & Brown Ins. Co. of PA, No. 876 MDA 2003 (Pa. Super., August 15, 2006). The decision, in a published opinion, held that an insurance broker is under no legal duty to inspect business premises and advise clients on the need to purchase flood insurance absent a confidential relationship. This is a reversal of an earlier decision of the Superior Court which was reviewed by the Pennsylvania Supreme Court late last year.

Earlier this year, on remand to the Superior Court, Burns White attorneys, John B. Cromer and Ira L. Podheiser, representing various entities as Amici (“friend-of-the-court”) and participated in the briefing of the legal issues involved for the Superior Court’s decision and urged the adoption of a rule limiting the duties of insurance brokers.

For a copy of the decision or the brief of the Amici, or for further information, please contact John B. Cromer jbcromer@burnswhite.com at 412-995-3134 or Ira L. Podheiser ilpodheiser@burnswhite.com at 412-995-3092.

Medicare to assess penalties for late eligibility filings beginning in summer 2009 for WC and liability cases

The attorneys at Burns White would like to bring to your attention an important Medicare issue that will be affecting liability and workers’ compensation cases as of July 1, 2009. If the below policies are not complied with, penalties can be assessed in the amount of $1,000 per day, per claim.

The legislation passed is the Medicare, Medicaid and Schipp Extension Act of 2007. In particular, Pages 15-22 illustrate the Medicare Secondary Payor responsibilities under Section 111, which, like the Medicare Modernization Act, serves to enforce existing statutory responsibilities. Specifically, Section 111 provides that filings will need to be made to Medicare providing information regarding an individual’s eligibility for Medicare benefits on dates to be specified by the Secretary of the Department of Health and Human Services.

When this policy takes effect in July 2009, a filing will have to be made to Medicare on every case that settles, or that has a judgment or award made. It is not established as of now when the filings are required, or exactly what information they should contain, but the filing will tell CMS whether a Claimant is Medicare-eligible. If the filings are not made on time, there is a $1,000 PER DAY fine, PER CLAIM.

Due to the fact that Medicare will not begin assessing penalties until at least July of 2009, Burns White will be available to assist you in your preparation, including development and implementation of a policy addressing this change before it takes place. In particular, we will make sure our plan provides for routine Social Security Verifications on open claims and those positioned to settle or reach trial.

As this matter progresses, Burns White will have updated information from the Secretary, so that we can best help protect client interests. If you have questions, please contact one of our Workers’ Compensation or Medicare Set-Aside attorneys at 412-995-3000.

Supreme Court favors employees in setting new standard for the filing of retaliation claims against employers

By: Employment Law Team

On June 22, 2006, the United States Supreme Court issued a unanimous decision that greatly affects the landscape of employment law, specifically the retaliation provisions of Title VII of the Civil Rights Act.

The specifics of the case involved a female employee who complained to her supervisor about gender discrimination/harassment. The employer investigated her complaint, but subsequently “reassigned” her to a position, stating that her position was owed to a more-senior employee. While the “reassignment” did not reduce the employee’s pay, hours, or seniority, she still filed a retaliation claim against her employer, for which she was successful at trial. The employer appealed and the case made its way to the Supreme Court.

Prior to this ruling, in a majority of courts, in order for an employer to be liable for retaliating against an employee who reported and/or complained about discrimination (age, gender, race, etc), the employer must have taken action against the employee that affected the employee’s “terms, conditions, or status of employment.” The Supreme Court expressly rejected this majority view and instead adopted the minority standard only held by the Seventh and D.C. Circuit Courts, which states that an employee must only show that a “reasonable employee” would have found the action taken by the employer to be adverse, in that action taken by the employer ?could well dissuade a reasonable employee from protected conduct.?

This decision can have a significant effect on any employer who has an employee who reports or complains of discrimination. The practical effect is that once that employee makes the report/complaint, no action can be taken against him/her that a “reasonable” employee would consider adverse. The Court further stated that it is for the jury to decide whether the employee’s belief was reasonable.

This ruling is sure to create many questions, both for employers and the courts. Please contact Burns White with any questions you may have regarding this or any other employment-related issue.

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