Abell's Kentucky Law Blog

Should A Judge Recuse When He Owes Money to One of the Law Firms In A Case?

It would seem obvious that a judge who owes money to one of the law firms representing a party in a lawsuit before that judge should recuse or get off the case. But Justice Michael Gableman of the Wisconsin Supreme Court sees it otherwise as discussed in this New York Times editorial: A Wisconsin Judge's Refusal to Recuse.

Robert L. Abell
www.RobertAbellLaw.com

Sixth Circuit Hears Appeal of Phen-Fen Lawyers, Gallion and Cunningham

The federal Sixth Circuit Court of Appeals today heard argument in the appeals of phen-fen lawyers William Gallion and Shirley Cunningham reports the Lexington Herald-Leader, "Federal Appeals Court Hears Kentucky Diet Drug Pair."

Is An Issue "Almost Too Close to Call" Ripe for Summary Judgment? "No" Rules the Kentucky Court of Appeals

In granting summary judgment and dismissing a case against the University of Kentucky and a number of its agents and employees Fayette Circuit Court Judge Pamela Goodwine observed that an issue was "almost too close to call."  The issue was "too close to call and therefore should not have been dismissed via summary judgment" ruled the Kentucky Court of Appeals in Carter v. University of Kentucky, No. 2010-CA-1621 (November 18, 2011). The Court of Appeals remanded for trial claims of breach of contract and discrimination.

Robert L. Abell
www.RobertAbellLaw.com 

No Link Between Tort Reform and Job Growth

Although shills for tort reform never tire -- after all they are paid and paid well by corporate and insurance interests intent on evading responsibility, accountability and liability for their own conduct -- of repeating the falsehood that tort reform leads to job growth, saying something that is not true does not make it true, something we learned as children but which is absent from public discourse.

The PopTort again explains: "We're Reposting Ourselves: Tort Reform and Jobs - No Link At All."

Robert L. Abell
www.RobertAbellLaw.com 

Order In the Court!: Wisconsin Supreme Court Justice Accused of Choking A Colleague

Wisconsin Supreme Court Justice David Prosser, who was barely re-elected in November, has been accused of choking a colleague, Justice Ann Walsh Bradley, in her court office after she asked him to leave:

"The facts are that I was demanding that he get out of my office and he put his hands around my neck in anger in a chokehold," Bradley told the Milwaukee Journal-Sentinel.

Justice Prosser does not come off looking too good as the story, "Justices Feud Gets Physical," reports what appear to be prior instances of bullying by him of Chief Justice Shirley Abrahamson.

Robert L. Abell
www.RobertAbellLaw.com 

 

How Medicare Saves Money

New York Times columnist Paul Krugman explains today how Medicare saves money: "Medicare Saves Money."

Robert L. Abell
www.RobertAbellLaw.com

Are Claims of Defensive Medicine Also Admissions of Fraud?

The PopTort again discusses that claims of defensive medicine are also admissions of fraud, "Attention Medicaid Auditors: Doctors Admit Fraud and Call It Defensive Medicine!"

The central point to ponder:

doctors who bill Medicare or Medicaid for tests and procedures done for personal purposes as opposed to what are medically necessary for patients, are committing fraud under federal and state Medicare/Medicaid programs. 

Also see this discussion on a Huffington Post blog by Joanne Doroshow, Executive Director for the Center on Justice and Democracy: "Why Medical Malpractice Reform Will Increase the Deficit, Not Reduce It."

Robert L. Abell
www.RobertAbellLaw.com

Car Safety and the Civil Justice System: Liability and Accountability Makes for Safer Cars and Protects the Public

Deaths in auto accidents and car wrecks in the United States last year were at the lowest level since 1949, despite the Americans driving some 21 million miles more in 2010 than sixty-one years earlier.

Gibson Vance, the President of the American Association for Justice, discusses the role of accountability and liability for auto makers in the civil justice system that has led directly to safer cars and fewer traffic deaths in an essay, "How Our Cars Got Safer," in the Washington Post. 

Robert L. Abell
www.RobertAbellLaw.com

Is An Attorney's Fee Paid for Representation at Trial Still Payable If the Client Pleads Guilty and Does Not Go to Trial

Is an attorney's fee paid for work in preparation for trial and in trial of a client's case refundable if the client pleads guilty?  Finding the parties' attorney-client representation agreement ambiguous on this point the Kentucky Court of Appeals ruled that a jury must decide what the parties' intended in Clark v. Hectus and Strause and attorney C. Thomas Hectus, No 2010-CA-00008 (February 25, 2011).

Joseph Clark got charged in a federal cocaine conspiracy and trafficking case. He paid the law firm Hectus & Strause and attorney C. Thomas Hectus $10,000. There was no formal representation agreement and the correspondence between client and attorney referred to the fee as a "flat fee" arrangement. In any event, attorney Hectus later wrote Clark and informed him that since it appeared the case would go on to trial an additional $10,000 fee was payable to cover preparation for trial and trial. Clark paid the second $10,000 but then pleaded guilty.  Since his case did not go to trial, he demanded refund of all or part of the second $10,000.

The Kentucky Court of Appeals treated the parties' correspondence as their attorney-client representation agreement but found that it was ambiguous as to whether they intended that all or part of the second $10,000 would be refundable in the event the case did not go to trial:

Because the parties did not create a fee contract that addressed the issue of who was entitled to what in the event that a trial did not not take place, the question will have to be resolved by a finder of fact.

The Court flatly and summarily rejected the attorney's argument that representation of Clark at his sentencing was the equivalent of trial representation.

Robert L. Abell
www.RobertAbellLaw.com

Rheumatoid Arthritis, Osteoarthritis and Fibromyalgia Support Disability Finding

Rheumatoid arthritis, osteoarthritis and fibromyalgia and the cumulative effects they inflict supported a finding of disability and entitlement to disability insurance benefits ruled the Fourth Circuit Court of Appeals recently in DuPerry v. Life Insurance Company of North America.

The court's decision comes nearly 4 1/2 years after the claim was submitted initially. The decision is a textbook illustration of a disability insurance companies efforts to "cherry pick" from the medical records and use those cherry-pick tidbits to try and justify denial of the claim.

The insured, Rebecca DuPerry, work as a payroll and benefits clerk for the Railroad Friction Products Corporation. Through her employment she had a long-term disability insurance policy both administered and underwritten by the Life Insurance Company of North America (LINA). On October 16, 2006, she filed a claim for disability insurance benefit, claiming that she was disabled because of her rheumatoid arthritis, osteoarthritis and fibromyalgia. She supported medical records as well as opinions and statements from her primary care physician in treating rheumatologist attesting to her limitations and to her occupational disability. Her claim was turned down. The insurance company claimed that it did not have enough diagnostic testing to show the severity of DuPerry's illness.

DuPerry appealed her claim's denial and submitted nearly 400 pages of documents in support of her claim. These included letters from both her treating rheumatologist and her primary care physician, a letter from her former supervisor describing her work ethic as "unsurpassed," a DVD filming her at home, supporting statements from several relatives, her prescription medication list and evidence showing her dependence on family for most common, every-day household chores and her need for assistance simply to walk or move around. Nevertheless, her claim was again denied.

DuPerry appealed again, this time submitting additional records from her primary care physician, her treating rheumatologist, another doctor and a second DVD documenting her condition. The insurance company referred her file for review to Dr. Marc Levesque of the Duke University Medical Center.  And again the claim was denied.

Having exhausted the claims appeal process, DuPerry filed suit.  The federal district court ruled that the disability insurance company had wrongly denied the claim. This time the insurance company appealed.

The Fourth Circuit viewed the insurance company's attempt to rely on isolated pieces of evidence as unreasonable:

   Initially, we note, as a global matter, that the pieces of evidence LINA identifies 10 to show, first, that DuPerry was able to perform, for relatively brief periods, certain task involved in sedentary work and, second, that certain individual diseases and physical problems that afflicted her were not sufficient, in isolation, to render her unable to do such work. However, to perform her job, DuPerry, obviously would be required to do much more than perform a small subset of her duties for a relatively short duration. Moreover, in so doing, she would have to overcome the combined effect of all of the problems caused by her diseases, not just a select few.

The court was also unsympathetic to Dr. Levesque's skepticism regarding the debilitating effects of DuPerry's pain, remarking that "DuPerry produce the only types of evidence a claimant in her situation could produce, her own description of the severity of her subjective symptoms, video showing how she moved in her condition, and her treating physician's opinions that the pain and fatigue rendered her unable to work." The court further noted that the policy contained no provision that precluded DuPerry from relying on her subjective complaints of pain as evidence supporting her disability claim.

The Fourth Circuit also approved the award of attorney's fees quoting approvingly from the District Court that LINA "patently abused the claim review procedure" by "overlooking substantial evidence from [DuPerry's] treating physicians that she was unable to work" and instead relied on "minor inconsistencies in and disingenuous interpretations of these physicians reports." Also, there was value in awarding attorneys fees as a deterrent effect to encourage plan administrators to inquire more meaningfully and fairly and disability claims that rely on subjective complaints of pain.

Robert L. Abell
www.RobertAbellLaw.com