Wednesday, December 30, 2009

Health care fraud, medicaid, chestnuts roasting on an open fire

Fosamax: N.Y. FEDERAL JUDGE DISMISSES BELLWETHER FOSAMAX SUIT, In re Fosamax Prods. Liab. Litig., 25 No. 11 Andrews Pharmaceutical Litig. Rep. 1, Andrews Pharmaceutical Litigation Reporter December 28, 2009
Merck & Co. has won dismissal of the second of three bellwether Fosamax suits scheduled for trial as part of a New York-based multidistrict litigation proceeding. U.S. District Judge John F. Keenan of the Southern District of New York granted the company's summary judgment motion in a product liability suit filed by a Mississippi woman who says she developed osteonecrosis, or jaw bone death, from using the osteoporosis drug Fosamax (alendronate).The ruling follows a mistrial recently declared.

(Reglan) Generic Drugs: FEDERAL LAW DOESN'T PREEMPT FAILURE-TO-WARN CLAIMS, Mensing v. Wyeth Inc., 25 No. 11 Andrews Pharmaceutical Litig. Rep. 2, Andrews Pharmaceutical Litigation Reporter December 28, 2009
A Minnesota woman's claims that generic-drug manufacturers violated state law by failing to warn consumers of a possible neurological disorder from prolonged use of their products are not federally preempted, the 8th U.S. Circuit Court of Appeals has ruled. The appeals court also held that plaintiff Gladys Mensing cannot sue name- brand manufacturers because she never took their products.According to the opinion, Mensing's doctor prescribed Reglan to treat a digestive disorder in 2001.

Navagil (Patent Infringement): TEVA FACES LAWSUIT OVER GENERIC VERSION OF SLEEP DISORDER DRUG, Cephalon Inc. v. Teva Pharms., 25 No. 11 Andrews Pharmaceutical Litig. Rep. 3, Andrews Pharmaceutical Litigation Reporter December 28, 2009
Biopharmaceutical company Cephalon Inc. has filed a federal patent infringement lawsuit against Teva Pharmaceuticals USA Inc. for trying to sell a generic version of its sleep disorder drug Nuvigil. Teva is infringing three patents supporting Nuvigil in its application to market a generic equivalent of the drug in the United States, according to the complaint filed in the U.S. District Court for the District of Delaware.

Health Care Fraud: OMNICARE, IVAX SETTLE KICKBACK CHARGES FOR $112 MILLION, United States v. Omnicare, 25 No. 11 Andrews Pharmaceutical Litig. Rep. 4, Andrews Pharmaceutical Litigation Reporter December 28, 2009
Nursing home pharmacy Omnicare Inc. has agreed to pay $98 million to settle federal allegations that it participated in Medicaid kickback schemes with drug manufacturers. Drug maker IVAX Pharmaceuticals, an alleged participant in the Omnicare scheme, agreed to pay $14 million to settle the suit, according to the Justice Department. The agency said Nov. 3 it is suing two major nursing home chains for allegedly accepting Omnicare's kickbacks in return for pharmacy services contracts.

Reglan (Generic Drugs): REGLAN MAKERS ESCAPE TEXAS GENERIC-DRUG SUIT, Burke v. Wyeth, 25 No. 11 Andrews Pharmaceutical Litig. Rep. 5, Andrews Pharmaceutical Litigation Reporter December 28, 2009
Two major pharmaceutical companies have won dismissal from a Texas woman's negligence and strict liability suit alleging she was injured by a generic version of Reglan, used to treat gastric reflux. A federal judge in Galveston, Texas, granted motions filed by Wyeth and Schwarz Pharmaceuticals, dismissing them from Virginia Burke's suit alleging they are liable for her severe neurological disorder even though they did not make the medication she took.

Medicaid Reimbursement: CALIF. DRUG GROUPS FIGHT MEDICAID CUTS, Nat'l Ass'n of Chain Drug Stores v. Schwarzenegger, 25 No. 11 Andrews Pharmaceutical Litig. Rep. 6, Andrews Pharmaceutical Litigation Reporter December 28, 2009
Two drugstore trade associations have asked a Los Angeles federal judge to temporarily enjoin the state government from reducing Medicaid reimbursements to individual pharmacies for the disbursement of prescription drugs. The National Association of Chain Drug Stores and the National Community Pharmacists Association sued Republican Gov. Arnold Schwarzenegger and other state officials in September when the state reduced by slightly more than 4 percent its Medicaid reimbursements to pharmacies.

Billing Fraud: DRUG COMPANIES TO PAY $124 MILLION TO SETTLE MEDICAID REBATE CLAIMS, United States v. AstraZeneca Pharms., 25 No. 11 Andrews Pharmaceutical Litig. Rep. 7, Andrews Pharmaceutical Litigation Reporter December 28, 2009
Four pharmaceutical companies have agreed to pay state and federal agencies $124 million to resolve claims they underpaid drug rebates to the government under the Medicaid program. The settlements end a False Claims Act suit filed in the U.S. District Court for the District of New Hampshire by Ven-A-Care of the Florida Keys Inc., one of several such qui tam suits the home health care company has filed around the country.

Long Term Care: KENNEDY'S CLASS ACT SURVIVES TIGHT SENATE VOTE, 12 No. 13 Andrews Nursing Home Litig. Rep. 1, Andrews Nursing Home Litigation Reporter December 18, 2009
The U.S. Senate has narrowly voted in favor of a bill that would create a government-run plan for long-term-care insurance in its health care reform legislation. The Community Living Assistance Services and Supports Act, which aims to help seniors and disabled people remain living independently, survived a Republican- driven effort to strike the voluntary insurance plan from the Senate's health care legislation. In a 51-47 vote Dec. 4, Democrats won enough votes to retain the measure.

Long Term Care Insurance: 'MISLEADING' POLICY NETS FLA. CARE FIRM $20K AWARD, Bell Care Nurses Registry v. Cont'l Cas. Co., 12 No. 13 Andrews Nursing Home Litig. Rep. 2, Andrews Nursing Home Litigation Reporter December 18, 2009
A Florida home health care insurer must pay $20,000 to a nursing services company for care it should have covered under a woman's "misleading" policy, a state appeals court has held. The Court of Appeal's 3rd District reversed a lower court's award of summary judgment to Continental Casualty Co.The three-judge panel said the insurer cannot get away with inserting illegal provisions in its home health care insurance policies requiring that the insured receive "primary" health care services.

Arbitration Dispute: PROXY CAN'T SIGN ARBITRATION AGREEMENT, APPEALS COURT SAYS, Lujan v. Life Care Ctrs. of Am., 12 No. 13 Andrews Nursing Home Litig. Rep. 3, Andrews Nursing Home Litigation Reporter December 18, 2009
Nursing home chain Life Care Centers of America cannot enforce an arbitration agreement that a former resident's son signed as his mother's health care proxy, a Colorado appeals court has ruled. The Court of Appeals said Alvin Lujan did not have the authority to sign the agreement when his mother, Estella, entered Evergreen Nursing Home.Because Estella was incapacitated and did not select her son as a health care proxy, his decision-making abilities were limited to issues that directly.

Discovery: NURSING HOME BLOCKED MED-MAL DISCOVERY, ESTATE SAYS, Arbour v. Alterra Wynwood of Meridian, 12 No. 13 Andrews Nursing Home Litig. Rep. 4, Andrews Nursing Home Litigation Reporter December 18, 2009
The estate of a woman who suffocated at a Michigan nursing home says the facility is "stonewalling" the estate's attempts to conduct discovery and depositions in its negligence and medical malpractice actions. Plaintiff Jeffrey J. Arbour as representative of his late mother's estate asked the U.S. District Court for the Western District of Michigan to deny the facility's request for a protective order prohibiting the deposition of managers at the nursing home.

Urinary Sling: URINARY SLING DEFECT SUIT MOVES TO ARIZ. FEDERAL COURT, Hirt v. Bard Peripheral Vascular, 12 No. 13 Andrews Nursing Home Litig. Rep. 5, Andrews Nursing Home Litigation Reporter December 18, 2009
A lawsuit accusing various companies of manufacturing and selling a defective urinary sling that allegedly injured a Canadian woman will play out in a federal court in Arizona. C.R. Bard Inc. removed the case to the U.S. District Court for the District of Arizona on the ground that defendants Bard Peripheral Vascular Inc. and Davol Inc. were fraudulently joined because they did not design, manufacture or sell the sling. Plaintiff Susan Hirt lives in Ontario. C.R. Bard is a New Jersey corporation.

Medical Malpractice: DOCTORS DIAGNOSED STROKE AS THYROID DISORDER, SUIT SAYS, Talavera v. Sw. Med. Ctr., 12 No. 13 Andrews Nursing Home Litig. Rep. 6, Andrews Nursing Home Litigation Reporter December 18, 2009
A Kansas emergency room failed to diagnose or treat a Mexican woman's stroke symptoms for five days, and she was driven to Mexico by taxi and left in a public park after suffering a massive stroke, according to a federal court lawsuit. Despite numerous opportunities to identify Carmen Talavera's signs of impending stroke, five doctors at Southwest Medical Center in Liberty, Kan., failed to include stroke in her differential diagnosis.

Medicare Billing: ORE. HOSPICE SETTLES FALSE-CLAIMS CASE FOR $1.8 MILLION, 12 No. 13 Andrews Nursing Home Litig. Rep. 7, Andrews Nursing Home Litigation Reporter December 18, 2009
Kaiser Foundation Hospitals will pay $1.83 million to settle allegations that its Oregon hospice facility's failure to comply with Medicare billing regulations violated the False Claims Act. The Nov. 12 pre-suit settlement followed Kaiser's voluntary disclosure to the Department of Health and Human Services that its Portland hospice did not get written certifications of terminal illness for patients from October 2000 through March 2004, the Justice Department said.

Medicare Fraud: FEDS, N.J. HOSPITAL SETTLE FRAUD CASE FOR $3 MILLION, United States v. Besler Consulting, 12 No. 13 Andrews Nursing Home Litig. Rep. 8, Andrews Nursing Home Litigation Reporter December 18, 2009
A New Jersey hospital will pay the federal government $3 million to settle a whistle-blower suit alleging Medicare billing fraud. Concurrently with settling its case against Trinitas Regional Medical Center in Elizabeth, N.J., the Justice Department said it was intervening in the same whistle-blower case against another defendant, Brookhaven Memorial Hospital Medical Center in East Patchogue, N.Y.

News Brief: FEDS RELEASES LIST OF NATION'S WORST NURSING HOMES, 12 No. 13 Andrews Nursing Home Litig. Rep. 9, Andrews Nursing Home Litigation Reporter December 18, 2009
The Centers for Medicare and Medicaid Services has released its annual report on the performance of nursing homes with a history of serious care quality issues. The report, released Nov. 25, details the ongoing status of nursing homes enrolled in CMS' "special focus facility" initiative. The program requires nursing homes with a greater number of documented deficiencies and problems, such as frequent resident injuries, to undergo additional inspections by CMS and state representatives.

News Brief: OBAMA LAUNCHES NEW BIOETHICS COMMISSION, 12 No. 13 Andrews Nursing Home Litig. Rep. 10, Andrews Nursing Home Litigation Reporter December 18, 2009
President Obama has created a new commission to advise him on issues that may arise as a result of advances in biomedicine and related areas of science and technology. The Presidential Commission for the Study of Bioethical Issues, created by executive order Nov. 30, replaces former President George W. Bush's Council on Bioethics. Obama abolished the council in June. The White House said in a statement that the new commission will identify and promote policies and practices.

Wrongful Termination: NURSING ASSISTANT SUES FACILITY, UNION FOR WRONGFUL TERMINATION, Dischinger v. Extendicare Homes, 12 No. 13 Andrews Nursing Home Litig. Rep. 11, Andrews Nursing Home Litigation Reporter December 18, 2009
A former nursing assistant accused of sexual abuse at a Minnesota long term care facility has filed a lawsuit in Minnesota federal court, alleging his union intentionally failed to pursue his wrongful-termination grievance within the required time period. In his complaint filed in the U.S. District Court for the District of Minnesota, Mark Dischinger says the Service Employees Healthcare Minnesota, Local 113 of the Service Employees International Union, engaged in "back- channel discussions".

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Tuesday, December 15, 2009

An Honest Debate

An Honest Debate
Posted Dec 1, 2009 9:09 PM CST
By David G. Savage

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Saturday, December 12, 2009

Parsley, rosemary, sage, thyme sprinkled over some new decisions

Counties -- School boards -- Termination of teacher's employment -- Teacher had right to counsel at investigatory interview conducted by investigator for school board's office of professional standards -- By its adopted policy, school board elected not to conduct investigations into allegations of teacher misconduct, but instead delegated its investigatory authority over these types of complaints to office of professional standards, and office of professional standards investigator's investigation constitutes an “agency in investigation” as that phrase is used in section 120.62(2), Florida Statutes
Reported at 34 Fla. L. Weekly D2488b

Condominiums -- Where condominium association filed petition for temporary injunction against unit owner, and court denied petition and returned matter to arbitration, award of attorney's fees to unit owner as prevailing party was premature -- Award of fees was error because the non-final order denying the petition for injunction did not end the litigation between the parties, and no final determination on the merits had been made
Reported at 34 Fla. L. Weekly D2501a

Non-named parties -- Defendant was entitled to award of attorney's fees against parties who were not named as plaintiffs, but who financed and had control over litigation -- Non-named parties' involvement in litigation was such that their status rose to level of a “party” -- Defendant was entitled to award of attorney's fees under civil theft statute where plaintiff's civil theft claim was without substantial legal support -- Defendant was not entitled to award of attorney's fees against non-named parties under offer of judgment statute where offer was not served on non-named parties
Reported at 34 Fla. L. Weekly D2496a

Contracts -- Action alleging that defendant breached contract for sale and purchase of LP gas by charging plaintiff for tank rental where contract only allowed defendant to change its charges for gas or gas service, and that tank is neither gas nor a service -- Error to enter summary judgment for defendant -- Breach of contract claim was not barred on ground that contract was terminable at will, where plaintiff alleged that defendant breached contract while it was in effect -- Summary judgment was improper where there was factual issue as to whether tank rental was a “service”
Reported at 34 Fla. L. Weekly D2485a

Contracts -- Specific performance -- Limitation of actions -- Equitable estoppel -- Doctrine of equitable estoppel acts as bar to statute of limitations defense, and its application is wholly independent of statute of limitations and its tolling provisions -- Trial court erred in relying on tolling statute to determine whether plaintiff's claims for specific performance were barred by statute of limitations where plaintiff asserted that defendant was equitably estopped from asserting statute of limitations defense -- Record will not permit appellate court to affirm on alternate basis that plaintiff did not allege sufficient facts to raise defense of equitable estoppel where adequacy of allegations was not at issue in trial court and, accordingly, plaintiff had no opportunity to address issue or proffer additional facts -- Trial court correctly dismissed count seeking to plead equitable estoppel as a separate cause of action -- Plaintiff entitled to new trial on breach of contract claim where jury found defendant had breached contract, but awarded zero damages despite uncontradicted evidence establishing more than nominal damages
Reported at 34 Fla. L. Weekly D2490a

Creditors' rights -- Garnishment -- Priorities -- Trial court properly determined that judgment lien controlled distribution of cash bond that had been deposited with clerk of court in an unrelated case and returned to debtor's attorney upon close of case -- Intervenor which claimed security interest in cash bond based on Uniform Commercial Code financing statement failed to establish that cash bond fell under any of the categories of collateral described in security agreement -- Cash bond was not an account, general intangible, deposit account, or financial asset within the meaning of UCC -- Assuming cash bond could be categorized as “money,” a security interest in money may be perfected only by secured party's taking possession under section 679.3131, a circumstance which did not occur in this case -- Jury trial -- Intervenor waived its right to jury trial by participating in non-jury trial
Reported at 34 Fla. L. Weekly D2495a

Employment discrimination -- Handicapped employees -- Plaintiff alleging employer discriminated against her when it terminated her from her cashier position because she had HIV, in violation of Florida Omnibus AIDS Act and Florida Civil Rights Act -- Evidence -- Trial court abused its discretion in admitting into evidence the “no reasonable cause” determination letter issued by county agency authorized to conduct investigations for Equal Employment Opportunity Commission because the conclusory nature of the agency's determination letter left it with little probative value compared to the substantial prejudicial effect it may have had on jury's ultimate assessment of plaintiff's credibility and the pivotal determination as to whether plaintiff had provided a doctor's note to her employer following her HIV-related absence -- Appellate court cannot say that erroneous admission of this evidence was harmless -- Discussion of admissibility of administrative findings and conclusions of EEOC or similar enforcement agency in a subsequent jury trial de novo under Florida Civil Rights Act or similar statutes
Reported at 34 Fla. L. Weekly D2477a

Commercial property damage -- Insolvent insurers -- Where insolvent insurance company which was Florida Insurance Guaranty Association's predecessor failed to comply with notice requirements of statute, insured was not required to submit to loss appraisal process -- FIGA is not exempt from notice requirement -- Line of cases refusing to hold FIGA liable for misdeeds of defunct insurer, beyond those arising out of an insurance policy, does not provide basis for avoiding application of statute -- FIGA's contention that appraisal process here is not a “precondition to legal action” within meaning of statute rejected in view of fact that FIGA requested stay in circuit court until contractual loss appraisal process was completed
Reported at 34 Fla. L. Weekly D2481a

Insurance -- Personal injury protection -- Defendant insurer's claim that it was not required to pay medical provider's bills because provider did not provide insurer with proper written notice of a covered loss where initial set of bills did not include a disclosure and acknowledgment form, and box 31 of CMS-1500 form did not contain physician's license number -- Where bills furnished to insurer contained physician's name, bills were substantially complete, and provided proper notice to insurer -- Even if physician's license number were deemed a material provision of statements or bills, absence of license number was cured by later submission of number to insurer -- Failure of medical provider to provide disclosure and acknowledgment form with initial set of bills was cured by submitting form prior to litigation -- Circuit court appellate division did not depart from essential requirements of law in affirming county court's entry of summary judgment for medical provider in action seeking unpaid benefits
Reported at 34 Fla. L. Weekly D2500a

Mortgage foreclosure -- Condominium unit -- Trial court erred in entering order requiring mortgagee to diligently proceed with pending foreclosure action within thirty days, or pay monthly maintenance fees on condominium unit in foreclosure
Reported at 34 Fla. L. Weekly D2505b

Torts -- Action by employee of window subcontractor and his wife against another subcontractor who installed safety railings at construction site, alleging that safety railings were negligently installed -- No error in entering summary judgment in favor of defendant on negligence issues where uncontested evidence established that defendant did not negligently install guardrail system -- Affidavit of plaintiff's human factors and industrial safety expert that “Safety Boot guardrail system was not properly installed” was based upon expert's reference to manufacturer's installation instructions depicting required railings, not upon expert's personal knowledge
Reported at 34 Fla. L. Weekly D2484a

Torts -- Automobile accident -- New trial -- Action by driver of motorcycle which collided with SUV driven by defendant when defendant's vehicle exited a parking lot and made a left-hand turn across lane in which plaintiff was traveling -- Plaintiff's motion for new trial on ground that jury verdict for defendant was against manifest weight of evidence -- Trial court did not abuse discretion in denying motion for new trial where there was conflicting evidence as to whether plaintiff ran red light before colliding with defendant's vehicle -- In denying motion for new trial, court was not required to articulate specifically that jury's finding was not contrary to manifest weight of evidence
Reported at 34 Fla. L. Weekly D2498a

Venue -- State agencies -- Home venue privilege -- Action filed in Pinellas County against state agencies and former employees of reform school, alleging causes of action against state agencies and individual defendants for violations of Declaration of Rights of Florida Constitution, and against individual defendants for assault and battery and intentional infliction of emotional distress -- Error to deny motion to transfer venue to Leon County, where state agencies have their headquarters -- State agencies did not waive home venue privilege by agreeing that venue was proper in either Leon County or Jackson County -- Joint tortfeasor exception to home venue privilege was not applicable where plaintiffs did not establish a statutory basis for venue against any defendants in Pinellas County -- Where state agencies and individual defendants are willing to submit to venue in either Leon County or Jackson County, and plaintiffs have indicated that they would prefer to try the case in Leon County, transfer of venue to Leon County is proper -- Appeals -- Order denying defendants' motion to transfer venue without prejudice is an appealable non-final order that concerns venue
Reported at 34 Fla. L. Weekly D2486b

Bankruptcy -- Adversary proceedings -- Contracts -- Chapter 11 trustee brought adversary proceeding against customer to recover amounts owed under fulfillment warehouse contract, and customer filed counterclaim seeking to recoup or setoff costs incurred to remove its property from debtor's warehouse -- Summary judgment affidavits of customer's employee were based on personal knowledge, and thus were admissible, where employee based statements in affidavits on her review of customer's business records -- Amendment of trustee's answer to counterclaim by changing two admissions to denials is in interest of justice, good cause exists for amendments, neither substantial nor undue prejudice will be incurred by allowance, and underlying motivation is neither rooted in bad faith nor generally dilatory in nature -- Recoupment -- Debtor's claim against customer for compensation due under fulfillment warehouse contract and customer's claim against debtor for damages arising from debtor's post-petition non-performance under contract did not arise from same transaction, and thus customer could not assert recoupment claim -- Setoff -- Damages sustained by customer as result of trustee's rejection of fulfillment warehouse contract are deemed to have arisen prepetition, and thus customer could setoff damages arising from removal of property from debtor's warehouse against funds owed debtor in form of outstanding invoices arising under contract
Reported at 22 Fla. L. Weekly Fed. B144a

Bankruptcy -- Confirmation -- Chapter 11 plan -- Liquidating plan pursuant to which debtor proposes to transfer substantially all of its assets free and clear of junior liens and encumbrances to mortgagee, who held perfected first mortgage lien and security interest in all of debtor's assets as of petition date, should be confirmed -- Debtor's revised joint plan of reorganization satisfies requirements for confirmation set forth in Section 1129 of Bankruptcy Code where debtor has been and will continue to be affected by decline in property values and unfavorable real estate market that has been experienced nationwide and plan will result in benefits to creditors that may not be available if case were dismissed or converted -- Objections to confirmation by claimants who had entered into prepetition agreements to purchase condominium units or related property from debtor on ground that plan impermissibly strips purchase contract claimants' equitable vendees' liens from debtor's real properties and improperly permits debtor to assign their deposits to mortgagee should be overruled, because claimants' claims, to extent they assert an interest in real property, have been disallowed, and because claimant's rights to deposits are preserved in plan
Reported at 22 Fla. L. Weekly Fed. B139a

Bankruptcy -- Discharge -- Denial -- Transfer or concealment of assets with intent to hinder, delay, or defraud creditor -- Bankruptcy court did not err in denying discharge based on finding that debtor had, with intent to shield assets from his creditors, diverted the fruits of his labor to increase the value of his wife's business and then used business assets to support his personal lifestyle -- Continuing concealment doctrine precludes debtor's contention that he could not have “concealed” assets from creditor within the one-year look-back period of section 727(a)(2)(A) because creditor had learned about debtor's alleged equitable interests more than a year before bankruptcy petition was filed
Reported at 22 Fla. L. Weekly Fed. C292a

Bankruptcy -- Discharge -- Complaint -- Amendment of pleadings to add various factual allegations is not required where evidence outside pleadings that was admitted and considered by trial court does not present a basis for relief -- False oath or account -- Omissions from Statement of Financial Affairs of transfers of debtor's interests outside ordinary course of business constitute false oaths and are cause for denial of discharge under section 727(a)(4)(A) because failure to disclose these transfers in debtor's schedules and statements was material and willful -- With fraudulent intent, debtor made deliberate omissions from his schedules and statements, and cannot shield this intent behind plea that he was merely following advice of counsel -- Prepetition fraudulent transfers -- Denial of discharge under Section 727(a)(2)(A) for fraudulent transfer of property within year prior to filing of petition is not warranted because evidence was insufficient to establish fraudulent transfer -- Under section 727(a)(2), transfer of funds from debtor's home equity line to IRA was not fraudulent where result of transaction was to make more assets available to creditors -- Conversion of exempt assets into non-exempt assets by inadvertence, with negative consequences to debtor, cannot be a fraudulent transfer -- Prepetition transfer or concealment of estate property of insider -- Denial of discharge based on allegations that debtor concealed or destroyed property of estate of insider of debtor is not warranted where plaintiff presented evidence regarding concealment or destruction of cabinet doors in facilities used by insider, but failed to establish that cabinet doors were, at that time, property of insider's bankruptcy estate -- Failure to satisfactorily explain loss of assets -- Issues of whether debtor satisfactorily explained whereabouts of his Rolex watch or alleged disposition of that watch and whether debtor satisfactorily explained disposition of $7,000 in cash obtained within six months of filing of bankruptcy are questions of fact -- Failure to maintain adequate books and records -- Denial of discharge pursuant to section 727(a)(3) for failure to keep or preserve recorded information is not warranted where failure to keep and maintain records documenting sale of debtor's Rolex watch is justified given that sale of 20 year old watch was cash transaction between acquaintances while on vacation
Reported at 22 Fla. L. Weekly Fed. B131a

Bankruptcy -- Liens -- Validity, extent, and priority -- Chapter 7 trustee holds superior right, claim, title, lien and interest in property referenced in lien claimed by defendants pursuant to financing statement filed in Pennsylvania, including, but not limited to, account receivable allegedly owed to debtor -- Because defendants' security interest was never perfected, trustee can avoid the lien under Section 544(a), and preserve it under Section 551 for benefit of estate and thus for benefit of all creditors -- Defendants' lien is unperfected, rendering it unsecured, where financing statement with respect to Florida debtor should have been filed in Florida, not Pennsylvania -- Trustee is free to administer such assets of bankruptcy estate, free and clear of any claim of right , title, lien, or interest by defendants -- Defendants permanently enjoined from collecting, in any manner whatsoever, on any receivables of debtor, including, but not limited to account receivable owed to debtor under contract; such property detailed in financing statement; or any other assets of estate -- Issuance of injunction is necessary and appropriate where immediate and irreparable injury will result to trustee if defendants are free to collect on receivables of debtor, property detailed in financing statement, and any other assets of estate, issuance of injunction does not substantially affect public interest and will benefit public interest by maintaining status quo, and trustee has no adequate remedy at law, as best legal remedy would relegate trustee to filing separate claim for damages each time it is injured anew -- Damages -- Defendants committed willful violations of automatic stay by manifesting the intent to violate stay in demand letter -- As sanctions, trustee is entitled to award of attorney's fees and costs associated with defendants' conduct in attempting to collect on assets which are property of bankruptcy estate -- Trustee is not entitled to additional sanctions because no showing of actual damages other than attorney's fees and costs has been made -- Punitive damages may not be awarded
Reported at 22 Fla. L. Weekly Fed. B148a

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Friday, December 4, 2009

Judge Cancels $525K in Mortgage Debt, Blasts Bank’s ‘Shocking and Repulsive’ Acts

Posted Nov 30, 2009 9:21 AM CST on ABA JOURNAL LAW NEWS By Debra Cassens Weiss
A New York judge has wiped out $525,000 in mortgage debt for a couple, saying the bank misled him about the amount at stake and refused to work with the homeowners to modify the loan.

The judge, Jeffrey Spinner, canceled the mortgage, interest and penalties after finding that the actions of the bank and its mortgage servicer were "harsh, repugnant, shocking and repulsive,” according to the New York Post, Newsday (sub. req.) and CNN. The couple had represented themselves.

The judge’s ruling leaves Diane Yano-Horoski and her husband, Greg Horoski, without any debt on their interest-only mortgage. Spinner’s “scathing” ruling blasted IndyMac Mortgage Services, a division of OneWest Bank F.S.B., according to the stories.

Skinner called OneWest Bank’s conduct "inequitable, unconscionable, vexatious and opprobrious."

Greg Horoski was surprised by the ruling. "We never asked for this," Horoski told the Newsday. "I was shocked, honestly. It's not like we said, 'Judge, please throw the loan away.' We just wanted them [the bank] to be reasonable."

Horoski told Newsday he and his wife were overwhelmed by the media attention and distraught over the death of their dog, who was hit by a neighbor's car last week. "Maybe God is telling us not to be too happy about the decision," he said.

OneWest Bank plans an appeal. “We believe the Yano-Horoski ruling, if allowed to stand, has sweeping and dangerous implications for the entire mortgage lending industry,” the bank told Newsday.

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Wednesday, December 2, 2009

Hospitals, wrongful death, declaratory judgments and business over fresh salad greens

Declaratory judgment -- Insurance -- Liability -- Coverage -- Liability policy at issue was claims made and reported policy, not an occurrence policy -- Defendant whose consumption of dietary supplement formulated by insured caused liver problems which necessitated a liver transplant and subsequent medical treatment suffered an ongoing bodily injury that spanned both periods in Retroactive Date Endorsement of liability policy at issue, entitling her to $1 million policy limits in effect during first claims period and $4 million policy limits in effect during subsequent claims period
Reported at 22 Fla. L. Weekly Fed. D110a

Torts -- Negligence -- Action by stunt driver who was injured during performance when dip in dirt right in front of ramp caused his car to lose speed and to fall short of catch cars, alleging that the event producer's crew was grossly negligent in failing to ensure that the ramp approach was properly smoothed and that person in charge of agenda was negligent for refusing to adjust time schedule to allow enough time to prepare ramp approach before plaintiff's stunt -- Release -- Although contract between the parties contained provision releasing defendant from liability for any claim arising out of stunt show, whether caused by negligence “or otherwise, and this language has been interpreted as including gross negligence, the release barring recovery for gross negligence is unenforceable under circumstances because of Florida statute prohibiting the operator of a closed-course motorsports facility to disclaim liability for gross negligence -- Football stadium at which stunt was performed was equivalent of closed-course motorsports facility under facts of case -- Whether defendants' conduct amounted to gross negligence is question for jury in this case
Reported at 22 Fla. L. Weekly Fed. D109a

Venue -- Torts -- Interference with business relationship -- Venue is improper in Southern District of Florida where plaintiff failed to allege that defendants' tortious conduct, or any acts with a close nexus to tortious conduct, occurred within Southern District -- Proper focus of venue inquiry is on relevant activities of defendants, not plaintiff's conduct -- Case transferred to Northern District of Georgia. the judicial district in which all defendants reside
Reported at 22 Fla. L. Weekly Fed. D113a

Criminal law -- Search and seizure -- Prescription records -- Error to grant motion to suppress records obtained from a pharmacy by an investigating law enforcement officer -- Section 893.07(4) requires pharmacies to make controlled substance records available to law enforcement officers and does not require pharmacies to notify the patient or withhold such records until a warrant is presented -- Federal Health Insurance Portability and Accountability Act does not constitute legal basis for suppression of records at issue -- Privacy provision of Florida Constitution does not support suppression of records in this case
Reported at 34 Fla. L. Weekly D2466a

Administrative law -- Florida Housing Finance Corporation -- Rejection of application for funding to build affordable housing -- Florida Housing Finance Corporation impaired the fairness of the proceedings before hearing officer by failing to index an order in a previous case and post it to the public where the previous decision was relevant and could have changed the outcome of the case had applicant and the hearing officer had benefit of the decision
Reported at 34 Fla. L. Weekly D2469a

Contracts -- Damages -- Defendant's breach of contract by failing to have plaintiff named as additional insured on policies obtained by defendant, with result that plaintiff had to settle personal injury action against it after defendant's insurer refused to defend -- Where plaintiff had filed unsuccessful declaratory judgment action seeking declaration that defendant's insurer had duty to defend and provide coverage to plaintiff, trial court did not err in allowing jury in breach of contract action to award attorney's fees and costs incurred by plaintiff in declaratory judgment action -- Prejudgment interest -- Trial court erred in failing to award prejudgment interest on entire jury verdict, including portions attributable to attorney's fees and costs incurred in personal injury action against plaintiff and declaratory judgment action
Reported at 34 Fla. L. Weekly D2467b

Workers' compensation -- Contribution -- Limitation of actions -- Carrier which was at risk at time of claimant's second accident was not entitled to contribution from carrier at risk at time of first accident for benefits second carrier voluntarily paid for care and treatment which was ultimately found to be wholly related to first accident where statute of limitations expired on first accident by the time of the occurrence of second accident -- Second carrier could not revive statute of limitations by merely providing benefits
Reported at 34 Fla. L. Weekly D2465a

Wrongful death -- Hospitals -- Action against hospital alleging that hospital had legal duty to decedent that was breached by its negligent hiring and supervision of surgical nurse employed by hospital who murdered decedent with an injection of hazardous controlled drugs -- Error to dismiss complaint for failure to allege a legal duty owed to decedent by defendant -- Allegations that defendant knew or should have known of the risk of unsupervised release of hazardous controlled drugs under its control, that a reasonable medical care provider like defendant would understand that the public would be exposed to risk of harm unless procedures and actions were undertaken to guard against the risk of unauthorized removal of hazardous drugs from its control without a doctor's prescription, and that the death of decedent was a foreseeable consequence of defendant's failure to use reasonable care in the hiring and supervision of nurse, were sufficient to establish a duty of care
Reported at 34 Fla. L. Weekly D2470b

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