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Personal Injury, Med Mal Cases To Watch In 2nd Half Of 2021

By Y. Peter Kang · July 9, 2021, 7:32 PM EDT

An expected ruling by the Florida high court in a dispute over medical expert pay disclosure and upcoming Eighth Circuit arguments in a suit accusing Tyson Foods of causing workers' coronavirus deaths are among the cases injury and malpractice attorneys will be following in the second half of 2021.

Here, Law360 looks at the top medical malpractice and personal injury cases to watch.

Florida Justices Will Decide Expert Pay Disclosure Issue

The Florida Supreme Court will determine whether existing precedent has unfairly resulted in defendants being treated differently than plaintiffs regarding information they must disclose about their attorneys' or insurers' financial relationships with medical expert witnesses.

It has been nearly a year since attorneys for defendants in two automotive personal injury cases contended at oral arguments in September that the 2017 decision in Worley v. Central Florida Young Men's Christian Association, which shielded details of the financial relationship between a plaintiff's law firm and treating physicians, has "upended" the law in personal injury litigation.

Defense counsel argued that the decision has not been applied evenly to both sides, resulting in plaintiffs essentially using it "as a sword and a shield" — refusing to respond to discovery requests about their expert witnesses while seeking "a ton" of information on the financial relationships between defendants' counsel or insurers and their expert witnesses.

"If the jury is only hearing that the defense's doctors are the ones being paid and have a financial interest, that always starts the defense behind the eight-ball," said Kansas R. Gooden of Boyd & Jenerette PA, who is representing petitioners Steven Younkin and Brent A. Dodgen.

Gooden suggested the high court has three options: overturn Worley, hold that Worley applies to both sides' medical experts, or limit financial bias impeachment to what is laid out in Florida Rules of Civil Procedure 1.280.

The third option would allow parties to obtain discovery on experts regarding their employment and payment in the pending case, the percentage of work performed for the party, other cases in which they have testified within a certain timeframe, and the approximate portion of their work that consists of serving as expert witnesses.

Gooden noted the third option was favored by doctors who filed a friend-of-the-court brief in the case.

Mark Nation, an attorney for respondent Nathan Blackwelder, urged the justices to keep Worley intact.

"[Court precedent] makes clear that the discovery of the financial connection between a law firm and its specially retained expert for trial is relevant and it is not privileged," he said. "The trial court did not depart from the central requirements of the law."

The case was consolidated with a similar case that originated from a different district, Dodgen v. Grijalva.

The cases are Younkin v. Blackwelder, case number SC19-385, and Dodgen v. Grijalva, case number SC19-1118, in the Supreme Court of Florida.

Georgia Justices to Review Snapchat Speed Filter Injury Suit

The Georgia Supreme Court granted certiorari on July 7 to a husband and wife trying to revive their personal injury suit against social media company Snapchat Inc. over its smartphone application's "speed filter," which the couple says distracted a driver who hit them.

The court ordered appellants Wentworth and Karen Maynard to brief their arguments about why the Georgia Court of Appeals was purportedly wrong to affirm in October a trial court's dismissal of their case. The Snapchat suit has been added to the state high court's October oral argument calendar.

The Maynards claim in their 2016 complaint that Christal McGee was distracted by Snapchat's speed filter on her cellphone while driving at 107 miles per hour, causing her to crash into their vehicle on a highway in September 2015 and causing Wentworth Maynard to suffer permanent brain damage.

Snapchat's speed filter is essentially a working speedometer that users can superimpose over pictures to capture their driving or traveling speeds and share those images, case filings show. The Maynards claimed that Snapchat negligently designed the smartphone feature knowing it would distract drivers and cause them to break traffic laws while chasing high speeds.

McGee allegedly accelerated to just over 100 miles per hour so that she could capture the speed on her Snapchat account.

Naveen Ramachandrappa of Bondurant Mixson & Elmore LLP, an attorney for the Maynards, told Law360 that he was pleased the justices decided to review the case, saying there have been at least 11 deaths across the country related to Snapchat and speeding drivers.

"Snapchat's speed filter is just one of many dangerous social media products that now dominate our society," he said. "Guidance from the Georgia Supreme Court is important to address these pressing public safety issues."

Counsel for Snapchat did not immediately respond to a request for comment.

Snapchat is accused of negligently designing the speed filter, encouraging users to endanger themselves and others on the roadway.

The Georgia Court of Appeals held in its October ruling that Georgia law does not impose a general duty to prevent people, like McGee, from committing torts while misusing a manufacturer's product like Snapchat's speed filter.

The case is Wentworth Maynard et al. v. Snapchat Inc., case number S21G0555, in the Supreme Court of Georgia.

Pa. Justices to Set Corporate Veil Piercing Standard for Injury Cases

The Pennsylvania Supreme Court will decide whether to expand the circumstances under which judges can ignore the legal distinctions between corporate entities and allow so-called veil piercing to make good on monetary judgments.

Oral arguments were held in December.

The case stems from efforts by Ryan Fell Mortimer to collect on a nearly $7 million verdict she won after being injured in a crash with a drunk driver who she said was allowed to over-imbibe at a Philadelphia-area bar.

Her lawsuit included claims against 340 Associates LLC, a corporate entity controlled by brothers Michael Andrew McCool and Raymond Christian McCool, which owned the liquor license used to operate the bar.

Not included in her suit, however, was a separate corporate entity owned by the McCool brothers and their father, McCool Properties LLC, which owned the property where the bar was located.

Since the liquor license was the only asset actually controlled by 340 Associates, Mortimer said she has been unable to fully collect on the judgment and has instead asked the court to allow her to press the issue against McCool Properties as well, based on their common ownership.

Traditionally, Pennsylvania law has strictly respected legal distinctions around business entities and only allowed litigants to pierce the corporate veil in limited instances to go after the assets of shareholders in collecting judgments against a company.

In the case before the justices, however, Mortimer has asked the court to adopt a so-called single-entity or enterprise theory of veil piercing in order to allow her to go after McCool Properties in order to collect on her judgment.

"We're waiting with bated breath for Mortimer v. McCool," said Alicia Hickok, co-chair of the appellate group at Faegre Drinker Biddle & Reath LLP. "In past cases, the court has been very strong about the narrowness of the veil-piercing doctrine, so I would be really surprised if the court comes out with a new expansive view."

The cases are Mortimer v. McCool, case number 37 MAP 2020, and Mortimer v. 340 Associates LLC, case number 38 MAP 2020, in the Pennsylvania Supreme Court.

8th Circ. to Settle Forum Issue in Tyson COVID-19 Death Suit

The Eighth Circuit agreed in April to hear oral arguments before deciding whether a federal or state court will adjudicate suits accusing the meat processing giant of repeatedly lying to its Waterloo, Iowa, plant employees and knowingly risking their health during the early stages of the pandemic, resulting in more than 1,000 worker infections and at least five deaths.

Suits filed by Hus Buljic and other relatives of four deceased workers were lodged in Iowa state court, but Tyson later removed them to federal court. An Iowa federal judge then ordered that the cases be remanded to state court, leading to the company's appeal.

At issue in the closely watched case is whether the company can invoke the Federal Officer Removal Statute, which allows certain cases to be removed from state to federal court if a federal officer or agency, or an entity working under a federal officer, is involved.

Tyson claims that because it was acting in accordance with then-President Donald Trump's April 2020 executive order under the federal Defense Production Act, which declared meatpacking plants critical infrastructure amid the pandemic, it was effectively made a federal officer.

The case is important because it has the potential to set court precedent over whether such cases could be heard in federal court, which is frequently believed to be a more favorable forum for corporate defendants with federal juries that are less willing to award large sums, according to one plaintiffs' attorney.

"We're seeing pretty wide-scale desperation by meatpacking companies to get themselves out of state court in these cases," Jeff Goodman, a Saltz Mongeluzzi & Bendesky PC attorney who is pursuing similar claims on behalf of Tyson workers in Pennsylvania, told Law360 in April. "One thing that is particularly outrageous is that in some of these cases, they are trying to invoke orders that didn't exist at the time of a worker's death."

But Tyson insists that the cases belong in federal court simply because the claims are controlled by federal law.

"The question of liability … should plainly be litigated in a federal forum, with due regard for the role the federal direction played in providing uniform guidance and keeping Tyson's plants open," the company said in a February brief.

Oral arguments are expected to be held in the fall.

The cases are Hus Buljic et al. v. Tyson Foods Inc. et al., case number 21-1010, and Oscar Fernandez v. Tyson Foods Inc. et al., case number 21-1012, in the U.S. Court of Appeals for the Eighth Circuit.

Calif. Justices to Consider Potential Med Mal Damages Cap Outlier

A mother who had a $4.25 million medical malpractice award slashed to $250,000 pursuant to California's cap on pain-and-suffering damages has asked the state's high court to carve out an exception to the rule, saying the cap shouldn't apply to physician assistants providing treatment without a doctor's direct supervision.

Marisol Lopez urged the California Supreme Court in a January brief to reinstate the full award in a suit accusing two physician assistants, Suzanne Freesemann and Brian Hughes, of failing to timely diagnose the malignant melanoma in her daughter that caused the child's death at age 4.

Lopez argued that the physician assistants acted outside the scope of services for which a health care provider is licensed because they provided medical care without any physician supervision, in violation of California statutes and regulations.

And because they weren't acting within the scope of their licenses, she said, the state's $250,000 cap on noneconomic damages in medical malpractice cases, such as pain and suffering, is inapplicable.

Oral arguments have not yet been scheduled, according to court records.

In March 2020, a split Court of Appeal panel upheld the Los Angeles County judge's post-trial reduction of the award, creating a bright-line rule stating that a physician assistant can be considered acting within the scope of his or her license "if he or she has a legally enforceable agency agreement with a supervising physician, regardless of the quality of actual supervision."

The panel said that although the two physician assistants who treated Lopez's daughter received little to no actual supervision from supervising physicians Drs. Glenn Ledesma and Bernard Koire, they nevertheless had legally enforceable agency relationships with the two doctors.

Lopez asserted Thursday that in enacting the cap via the Medical Injury Compensation Reform Act of 1975, California lawmakers did not intend for physician assistants practicing medicine autonomously — which Lopez said is a crime — to benefit from the cap.

"These PAs were clearly violating a restriction imposed by the licensing agency when they treated [Lopez's daughter] without a physician who was even capable of providing the necessary supervision," the brief states. "These PAs were therefore no longer acting as a physician assistant but rather were acting as autonomous health care providers who were criminally treating patients."

The case is Olivia Sarinanan et al. v. Glenn Ledesma M.D. et al., case number S262487, in the Supreme Court of the State of California.

--Additional reporting by Matt Fair, Nathan Hale and Rosie Manins. Editing by Philip Shea.

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