At the 2017 America’s Claims event, a panel discussed emerging trends in claims litigation on certain issues. The panel members were all representatives of Your House Counsel:
- Timothy Crawley – Partner, Anderson Crawley & Burke PLCC
- Edward Bacon – Partner, Bacon Thornton & Palmer LLP
- Deana Dagner – Partner, Dagner Schulter Mitzner Weber LLC
- Paul Miller – Partner, Miller Christie & Kinney PC
- Christopher Reinkall – Partner, Doherty & Progar LLC
Collateral source rules apply to personal injury litigation. They are designed to prevent defendants from being able to argue that medical benefits were paid by a “collateral source” such as insurance, which would reduce the actual damages of the defendant. Case law around the country and laws around litigation reform have varied significantly on this issue. One issue of focus is whether or not defendants are allowed to disclose whether a collateral source even exists. When disclosure of the source is allowed, there are arguments about what the actual the amount of the bills in question can be legitimately be argued. Plaintiff attorneys want to argue that the billed amount is the actual damages, while defendants want to argue that the damages should be limited to what the collateral source actually paid or what the provider/carrier routinely accepts as full reimbursement. The logic being that there is always a difference between charged amounts by medical providers and what they accept as full payment.
Many states do not allow for common law third party bad faith claims. This is where the third party can sue the carrier for the handling of the claim. Most states do allow for first-party bad faith claims where the policy holder sues the carrier for failing to live up to the obligations of the policy. Often times, these first-party claims are assignable to the third party. You see this happen when a carrier refuses to settle for policy limits and an excess verdict is received. The third party will accept assignment to sue the carrier rather than trying to collect the excess verdict from the defendant who likely does not have the funds.
A common defense for bad faith claims handling is relying on the advice of counsel. The carrier argues that their actions were based on expert advise of their attorney. Some states do not allow for this defense.
When litigating the same issues in multiple states it is very important to have a coordinating counsel overseeing all litigation to ensure you are not making conflicting arguments in different jurisdictions. It is also important to know what evidence is disclosed in one case vs other cases. Smart lawyers will look for similar litigation against a carrier to see if the documents they are seeking were disclosed in the other cases.
Traumatic Brain Injury
Tramatic brain injury claims are increasing due to increased awareness around head injuries and the potential long-term side effects of concussions. Another reason for the increased number of claims is the fact that most TBI symptoms are the same as mental health symptoms (dizziness, headaches, memory loss, etc). Mental health problems are common with an estimate that 20% of the population will suffer some condition in a given year. People will claim their symptoms are caused by a TBI when in fact what they are experiencing is a mental health condition.
There is a big difference between TBIs in professional athletes and what an average person sustains in an accident. Athletes have repetitive injuries over a very short period of time which can lead to a variety of problems including the highly publicized CTE. The average person has just a single incident so they cannot experience the same problems as the athlete.
Improper use of technology also leads to overdiagnosis of TBI claims. Certain diagnostic tests are implied to show evidence of TBI but in fact they may be showing something else including evidence the person took certain medications in their lifetime (such as for attention deficit disorder).
Defending lead poisoning claims can be very challenging. Much of this litigation has been in the housing area in particularly public housing focused on lead based paint. Low levels of lead in the blood can lead to serious health consequences.
Emerging claims in this litigation are in the area of water pipes. The problems in Flint, MI highlight this. There is a significant amount of the American population that receive their water through lead water supplies especially in older cities. The utilities do not have adequate records to know what lead pipes are in their water supply system or where they may be located so they can be replaced.
They are also seeing litigation due to trace amounts of lead being found in food products. This could be from the water supply or other sources. However, when lead is found in baby food it is that manufacturer who get’s sued under product liability and it is virtually impossible for them to push the liability elsewhere.