On Today’s Menu: some recent health law specials

Congress Introduces Congressional Resolution To Ensure That Any National Health Care Reform Legislation Directly Addresses The Health Needs Of Women, 16 No. 11 Andrews Health L. Litig. Rep. 8, Andrews Health Law Litigation Reporter March 25, 2009
U.S. Sen. Debbie Stabenow, D-Mich., has introduced a congressional resolution to ensure that any national health care reform legislation directly addresses the health needs of women. The Feb. 12 resolution calls on Congress to pass a reform bill within 18 months that guarantees health care coverage for women and families. On the same day, U.S. Rep. Jan Schakowsky, D-Ill., introduced an identical resolution in the House. "Women are the gatekeepers of their families' health," Stabenow said.

Legislation: Both Houses Of Congress Have Introduced Joint Bills To Reverse A Key U.S. Supreme Court Medical Device Ruling, 16 No. 11 Andrews Health L. Litig. Rep. 1, Andrews Health Law Litigation Reporter March 25, 2009
Members of both houses of Congress have introduced joint bills to reverse a key U.S. Supreme Court decision that barred patients injured by medical devices from suing for damages in state court. Last year the nation's highest court ruled in an 8-1 decision that a 32-year- old federal regulation shields medical device makers from liability under state laws in suits claiming injury from devices that received Food and Drug Administration approval. Riegel et al. v. Medtronic Inc.

Consumer Protection: Extendicare Wins Dismissal Of Fraud Class Action, Bernstein v. Extendicare Health Servs., 16 No. 11 Andrews Health L. Litig. Rep. 2, Andrews Health Law Litigation Reporter March 25, 2009
A federal judge has dismissed a class-action lawsuit accusing nursing home operator Extendicare Health Services of using false and deceptive advertising to attract prospective residents while providing substandard care at its Minnesota facilities. The U.S. District Court said the false-advertising statements alleged by plaintiff Laura Bernstein constituted mere "puffery" and could not be the basis for a consumer protection action.

EMTALA: Family Loses Bid To Sue Hospital Failing To Properly Screen And Stabilize A Man Who Later Died From A Drug Overdose, Cintron v. Pavia Hato Rey Hosp., 16 No. 11 Andrews Health L. Litig. Rep. 3, Andrews Health Law Litigation Reporter March 25, 2009
A federal judge in Puerto Rico refused to reconsider a decision in favor of a hospital accused of failing to properly screen and stabilize a man who later died from a drug overdose. The family of Luis Valentn-Cintr"n sued Pavia Hato Rey Hospital for violating the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. 1395dd.Denying the family's bid to reopen the case, the U.S. District Court affirmed his prior finding that no emergency condition existed at that time.

Health Care Fraud: U.S. Government Has Joined Two San Francisco Federal Court Whistle-Blower Suits Against J&J Subsidiary, United States v. Scios Inc., 16 No. 11 Andrews Health L. Litig. Rep. 4, Andrews Health Law Litigation Reporter March 25, 2009
The U.S. government has joined two San Francisco federal court whistle-blower suits accusing Johnson & Johnson subsidiary Scios Inc. of illegally selling its breathing drug Natrecor for unapproved uses. Former Scios sales managers turned whistle-blowers Joe Strom and Jeffrey A. Smith filed separate suits in 2005 in the U.S. District Court for the Northern District of California. Both suits alleged violations of the False Claims Act, 31 U.S.C. 3729.

HIPAA: CVS Caremark Has Agreed To Pay $2.25 Million To Settle Charges That It Violated Federal Privacy Regulations, In re CVS Caremark Corp., 16 No. 11 Andrews Health L. Litig. Rep. 5, Andrews Health Law Litigation Reporter March 25, 2009
CVS Caremark has agreed to pay $2.25 million to settle charges that it violated federal privacy regulations when pharmacy employees threw out prescription records and drug bottles into open trash bins. The settlement resolves a joint investigation by the U.S. Department of Health and Human Services and the Federal Trade Commission prompted by 2006 media reports that Dumpsters behind certain CVS pharmacies contained pill bottles with patients' names, Social Security numbers and insurance information.

HIPAA: Defendants Get Access To Asbestos Claimants' Medical Records, In re Asbestos Prods. Litig., 16 No. 11 Andrews Health L. Litig. Rep. 6, Andrews Health Law Litigation Reporter March 25, 2009
Medical records related to the diagnosis of asbestos-related conditions used by plaintiffs in the asbestos multidistrict litigation are discoverable by the defendants, the federal court overseeing the cases has ruled. Doctors had argued that releasing the records, including X-rays and pulmonary function tests, would violate patients' privacy rights under the Health Insurance Portability and Accountability Act, 110 Stat. 1936.The multidistrict litigation is a consolidation of all federal asbestos cases.

Hospital Billing: Hospital In Missouri Is Facing A Class-Action Complaint Alleging It Charges Emergency Room Rates For Non-Emergency Care, Donley v. St. Luke's Health Corp., 16 No. 11 Andrews Health L. Litig. Rep. 7, Andrews Health Law Litigation Reporter March 25, 2009
A hospital in Missouri is facing a class-action complaint alleging it charges emergency room rates for non-emergency care. Michael Donley claims in a state court lawsuit that St. Luke's Health Corp. billed him $250 in emergency room rates for care he received in one of the hospital's urgent care centers, filed in the St. Louis County Circuit Court.


Medicare: U.S. Has Moved To Dismiss A Proposed Class-Action Suit, Saying Retirees Have No Standing For Medicare Challenge, Hall v. Johnson, 16 No. 11 Andrews Health L. Litig. Rep. 9, Andrews Health Law Litigation Reporter March 25, 2009
The federal government has moved to dismiss a proposed class-action suit accusing the Department of Health and Human Services of illegally denying retirees their rightful Social Security benefits because they wish to opt out of Medicare. Plaintiffs Brian Hall, Lewis Randall and Norman Rogers allege that HHS and the Social Security Administration told them they would lose the thousands of dollars they had paid into Social Security over the years if they did not enroll in the federal health care.

State Services: JUDGE WON'T TOSS SUIT ON CARE OPTIONS FOR NYC'S MENTALLY ILL, Disability Advocates v. Paterson, 16 No. 11 Andrews Health L. Litig. Rep. 10, Andrews Health Law Litigation Reporter March 25, 2009
An advocacy organization may pursue its lawsuit alleging that mentally disabled New York City residents are unnecessarily institutionalized in "adult homes" because the state fails to provide community-based alternatives, a federal judge has ruled. In an exhaustive 112-page opinion, U.S. District Judge Nicholas G. Garaufis found, among other things, that Disability Advocates Inc.'s claims fall squarely within Title II of the Americans with Disabilities Act, 42 U.S.C. 12132.

Surgical Error: FLA. WOMAN SUES OVER BUNGLED COLOSTOMY PROCEDURE, Timmerman v. Kasemsap, 16 No. 11 Andrews Health L. Litig. Rep. 11, Andrews Health Law Litigation Reporter March 25, 2009
What should have been a routine colostomy reversal turned into a nightmare for a Florida woman whose state court lawsuit alleges the procedure resulted in her rectum being connected to her vagina. Lori A. Timmerman sued Dr. Pachavit Kasemsap and his employer, Surgical Associates of North Florida, in the St. Johns County Circuit Court. According to the complaint, Kasemsap negligently performed a colostomy reversal.

Wrongful Death: DOCTORS KILLED MAN TO HARVEST ORGANS, FAMILY SAYS, Jacobs v. Ctr. for Organ Recovery & Educ., 16 No. 11 Andrews Health L. Litig. Rep. 12, Andrews Health Law Litigation Reporter March 25, 2009
The parents of an 18-year-old man who suffered brain damage in a snowboarding accident say two doctors at a Pennsylvania hospital "intentionally killed" him to harvest his vital organs, according to a wrongful-death suit filed in federal court. Michael and Teresa Jacobs, of Belleview, Ohio, say their son Gregory died after doctors at Hamot Medical Center in Erie prematurely removed his breathing tube even though he had not suffered brain or cardiac death.

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Stir Fry: Upcoming Rule Amendments in the Florida Supreme Court and in the U.S. Supreme Court

The Florida Supreme Court released the following court rule opinions:

Opinions Released Mar. 19, 2009
SC08_1612 – In re: Amendments to the Florida Rules of Juvenile Procedure
SC08_2176 – In re: Approval of Application for Determination of Indigent Status Form For Use By Clerks and Amendment to Florida Rule of Criminal Procedure 3.984


Opinions Released Mar. 5, 2009
OP_SC08_1488 – In Re: Standard Jury Instructions In Criminal Cases – Report No. 2008_07 – correction notice
OP_SC08_1488 – In Re: Standard Jury Instructions In Criminal Cases – Report No. 2008_07 – corrected opinion
Fri., Feb. 27, 2009
OP_SC08_1236 – IN RE: AMENDMENTS TO FLORIDA RULE OF JUVENILE PROCEDURE 8.255


Opinions Released Feb. 26, 2009
SC08_1292 – In re: Amendments to Florida Rule of Criminal Procedure 3.112 –
Minimum Standards for Attorneys in Capital Cases
SC08_1488 – In re: Standard Jury Instructions in Criminal Cases – Report No. 2008_07
SC08_2431 – In re: Standard Jury Instructions in Criminal Cases – Report No. 2008_08


Opinions Released Jan. 29, 2009
SC08_1226 In re: Amendments to Florida Rule of Appellate Procedure 9.141.
SC08_2357 In re: Amendments to Florida Rules of Appellate Procedure.


Opinions Released Jan. 15, 2009
OP_SC08_641 – In Re: Amendments To Florida Family Law Rule 12.010 – correction notice
OP_SC08_641 – In Re: Amendments To Florida Family Law Rule 12.010 – corrected opinion


Tuesday, December 30, 2008
SC08_1833 – In re: Amendments to Florida Rule of Criminal Procedure 3.851 and
Florida Rule of Appellate Procedure 9.142
SC08_1834 – In re: Amendments to Florida Rules of Criminal Procedure – correction notice
SC08_1834 – In re: Amendments to Florida Rules of Criminal Procedure – corrected opinion


Tuesday, December 18, 2008
SC08_484 – In Re: Standard Jury Instructions In Criminal Cases – Report No. 2008_02


Click here to access the amendments.


U.S. Supreme Court Approved Rules : New Rules and Amendments Approved 3/19/09

On March 19, 2009, the Supreme Court of the United States approved the following proposed amendments on the computation of time under the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure:
• Appellate Rules 4, 5, 6, 10, 12, 15, 19, 25, 26, 27, 28.1, 30, 31, 39, and 41;


• Bankruptcy Rules 1007, 1011, 1019, 1020, 2002, 2003, 2006, 2007, 2007.2, 2008, 2015, 2015.1, 2015.2, 2015.3, 2016, 3001, 3015, 3017, 3019, 3020, 4001, 4002, 4004, 6003, 6004, 6006, 6007, 7004, 7012, 8001, 8002, 8003, 8006, 8009, 8015, 8017, 9006, 9027, and 9033;


• Civil Rules 6, 12, 14, 15, 23, 27, 32, 38, 50, 52, 53, 54, 55, 56, 59, 62, 65, 68, 71.1, 72, 81; Supplemental Rules B, C, and G; and Illustrative Civil Forms 3, 4, and 60; and


• Criminal Rules 5.1, 7, 12.1, 12.3, 29, 33, 34, 35, 41, 45, 47, 58, 59, and Rules 8 of the Rules Governing §§ 2254 and 2255 Cases.


The Supreme Court also approved the following proposed non_time computation rules amendments and new rules:
• Appellate Rules 4, 22, 26, and new Rule 12.1;


• Bankruptcy Rules 2016, 4008, 7052, 9006, 9015, 9021, 9023, and new Rule 7058;


• Civil Rules 13, 15, 48, and 81, and new Rule 62.1; and


• Criminal Rules 7, 32, and 32.2, 41, and Rules 11 and 12 of the Rules Governing § 2254 Cases and Rule 11 of the Rules Governing § 2255 Cases.


The proposed federal rule amendments will be transmitted to Congress in accordance with the Rules Enabling Act and take effect on December 1, 2009, unless Congress enacts legislation to reject, modify, or defer the amendments. Click here to access the amendments.


The Law Lady. For more information, go to www.easleyappellate.com and asked to be placed on our Recent Decisions of Interest mailings.

Steamy biscuits, certifications of class actions, regulation of lobbyists, civil procedure developments and OSHA whistleblower actions

In General Motors Corp. v. Bryant,(Ark.) predominance requirement for class certification was met in vehicle owners' suit against vehicle manufacturer. As an issue of first impression, the Supreme Court of Arkansas held that a circuit court was not required to engage in a choice-of-law analysis before certifying a multistate class action. That Court held that a vehicle owners' claims that certain vehicles made by a vehicle manufacturer were equipped with defectively designed parking brakes met class certification’s predominance requirement. Whether the class vehicles contained a defectively designed parking brake system and whether the manufacturer concealed that defect were questions that predominated and that had to be resolved for all class members; any potential individualized issues that the vehicle manufacturer raised could be addressed after deciding the common, predominating issues. As such, the Court stated that the potential choice-of- law determination and application were similar to a determination of individual issues and those could not defeat class certification.


Legislation -- Regulation and discipline of lobbyists -- Chapter 2005-359, Laws of Florida, codified at sections 11.045 and 112.3215, Florida Statutes (2008), which provides for the regulation and discipline of lobbyists, is constitutional -- Act does not violate separation of powers doctrine -- Since the regulation, discipline, and licensing of lobbyists is not subject to the control of any branch or office, the Legislature is not prohibited from using its own discretion and judgment to accomplish the task -- Act was validly enacted in special session by Florida Legislature -- Act does not infringe on Florida Supreme Court's jurisdiction to regulate lawyers or the practice of law -- Lobbying as defined by Act does not constitute the practice of law. Reported at 34 Fla. L. Weekly S271a


Administrative law -- Declaratory statements -- Authority of property owners association under chapter 718 to engage in lobbying activities -- No error in denying unit owner's petition for declaratory statement on issue of whether the property owners association could engage in lobbying the Florida Legislature to amend Florida Condominium Act, directly or indirectly through an organization of condominium associations, for a fee or at no cost -- Questions raised by unit owner implicate issue of whether POA has right, under First Amendment, to engage in lobbying, and agency is not authorized to resolve this issue -- If agency were to ignore constitutional issue, agency would not be able to provide unit owner and POA with proper interpretation of chapter 718 which, in turn, would undermine the purpose of a declaratory statement, which is to aid petitioner in selecting a course of action in accordance with the proper interpretation and application of the statute. Reported at 34 Fla. L. Weekly D591c


Offer of judgment -- Proposal for settlement made to joint parties was not valid where proposal failed to specify amount attributable to each party, even though the claims of the two plaintiffs were indistinguishable -- Rule requiring apportionment between multiple parties applies “without exception” in “all proposals for settlement authorized by Florida law”. Reported at 34 Fla. L. Weekly D592a
Intervention -- Error to enter post-judgment order permitting investors in judgment debtor LLC to intervene -- Investors in entity that failed to repay its admittedly-defaulted promissory note had no standing to intervene -- Trial court erred in granting motion to stay execution of judgment on promissory note -- Even if stay had been justified, bond would have been necessary to protect judgment creditor from losses, costs, and legal expenses that might ensue as result of delay. Reported at 34 Fla. L. Weekly D603b


Employer-employee relations -- Whistle-blowers -- Action alleging that forklift that employee was operating was unsafe and improperly maintained in violation of OSHA regulations, and that employee was unlawfully terminated when he complained about the safety of the forklift -- Error to enter directed verdict for defendant employer on ground that employer did not have the required number of employees to make it liable as an employer under Whistle Blower Act -- Court erred in failing to allow jury to determine whether employer was liable under “joint employer” or “single employer” doctrine -- Employee leasing company which furnished employee to employer was not an indispensable party under Whistle Blower Act -- Whistle blower action can be based on a violation of an OSHA regulation -- Evidence -- Trial court did not err in allowing employee to introduce depositions and answers to interrogatories as substantive evidence. Reported at 34 Fla. L. Weekly D601a


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A HEALTHy serving of corned beef and cabbage. Happy St. Paddy’s Day

2009 Florida House Bill No. 1041 111th Regular Session (SUMMARY - NETSCAN)
Emergency Services/Medicaid Managed Care Plans; Provides conditions for provision of services to enrollees of managed care plans by certain hospitals; provides time limits & rate structures for payment of claims to certain hospitals for services or goods by provider; revises requirements for reimbursement for provision of emergency services & care under health maintenance contract; provides for construction; provides applicability. EFFECTIVE DATE: 07/01/2009

2009 FL H.B. 1041 (NS)
2009 Florida Senate Bill No. 2192 111th Regular Session (SUMMARY - NETSCAN)
Florida Consumer & Small Business Arbitration Act; Creates said act. Provides that the act does not apply to certain insurance policies and certain arbitrations. Provides that mandatory binding arbitration is void and unenforceable except as otherwise provided by federal law. Provides proceedings to compel arbitration. Provides for the appointment of arbitrators and umpires. Authorizes an arbitrator or umpire to issue subpoenas for the attendance of witnesses and production of documents, etc.

2009 FL S.B. 2192 (NS)
2009 Florida Senate Bill No. 2158 111th Regular Session (SUMMARY - NETSCAN)
Pub. Rec./Claims Files and Medical Records; Provides an exemption from public records requirements for specified claims files, medical records that are part of a claims file, information relating to the medical condition or medical status of a claimant, and records pertaining to matters reasonably encompassed in privileged attorney-client communications of the Florida Insurance Guaranty Association. Provides for limited duration of the exemption for claims files, etc. EFFECTIVE DATE: 07/01/20009

2009 FL S.B. 2158 (NS)
2009 Florida House Bill No. 1385 111th Regular Session (SUMMARY - NETSCAN)
Children with Disabilities; Requires certain licensing boards to require continuing education on developmental disabilities for certain licensees & certificateholders; provides health insurance coverage & coverage under health maintenance contract for individuals with developmental disabilities; authorizes students who receive certain services under VPK to receive John M. McKay Scholarship for Students with Disabilities, etc. EFFECTIVE DATE: 07/01/2009
2009 FL H.B. 1385 (NS)

March 16, 2009
NEW FDA DECREE COVERS ALL CARDINAL 303 INFUSION PUMPS,
United States v. Undetermined Quantities of Boxes, 16 No. 2 Andrews Med. Devices Litig. Rep. 1, Andrews Medical Devices Litigation Reporter
The federal government has expanded a 2007 consent decree requiring medical device maker Cardinal Health 303 Inc. to bring its Alaris signature edition line of infusion pumps in compliance with Food and Drug Administration manufacturing and distribution standards to include all its infusion pump models.The revised consent decree was filed in the U.S. District Court for the Southern District of California.


March 16, 2009 HIP IMPLANT LAWSUIT AGAINST STRYKER CORP. IS PREEMPTED,
Horowitz v. Stryker Corp., 16 No. 2 Andrews Med. Devices Litig. Rep. 2, Andrews Medical Devices Litigation Reporter
A Brooklyn, N.Y., federal judge granted Stryker Corp.'s motion to dismiss a plaintiff's lawsuit for failure to warn of the Trident artificial hip system--the Trident ceramic acetabular hip system she received two years earlier might emit constant creaks and ticking. The court cited the failure to show that her action "parallels" existing Food and Drug Administration standards for the device.

March 16, 2009 CONGRESS LOOKS TO UNDO MEDICAL DEVICE RULING, 16 No. 2 Andrews Med. Devices Litig. Rep. 3, Andrews Medical Devices Litigation Reporter
Last year the U.S. Supreme Court ruled 8-1 in Riegel et al. v. Medtronic Inc. that a 32-year- old federal regulation shields medical device makers from liability under state laws in suits claiming injury from devices that received Food and Drug Administration approval. Congress has introduced joint bills to reverse key U.S. Supreme Court decision that barred patients injured by medical devices from suing for damages in state court.

March 16, 2009 DEVICE SUIT RETURNED TO IND. STATE COURT; SALES REP AT ISSUE, Gibbs v. I-Flow Inc., 16 No. 2 Andrews Med. Devices Litig. Rep. 4, Andrews Medical Devices Litigation Reporter
An Indiana federal judge, U.S. District Judge William T. Lawrence rejected defendant I-Flow Corp.'s argument that a product liability suit should stay in federal court because the sales representative was fraudulently joined. Timothy Gibbs sued I-Flow, a pain pump maker, and sales representative Barbara Rowland in the Hendricks County Superior Court in March 2008. The federal court has returned the product liability suit against the defendants to state court, finding crucial questions over the liability of the defendant company's sales agent.

DEVICE MAKER DENIES NEGLIGENCE IN TEXAS PEDICLE SCREW SUIT, Thompson v. Allez Spine, 16 No. 2 Andrews Med. Devices Litig. Rep. 5, Andrews Medical Devices Litigation Reporter March 16, 2009
Medical device maker Allez Spine has denied a Texas woman's claims that its failure to properly design and manufacture a spinal fixation screw forced her to endure two corrective operations and permanently diminished her physical agility. The company says the "learned intermediary" doctrine shields it from plaintiff Penny Thompson's claims because it provided all warnings regarding the risks associated with the device to the surgeon who recommended it to her.

March 16, 2009 DAUGHTER SAYS FAULTY DEFIBRILLATOR KILLED PA. MAN, Cathcart v. St. Jude Med., 16 No. 2 Andrews Med. Devices Litig. Rep. 6, Andrews Medical Devices Litigation Reporter
Two Pennsylvania sisters have sued for more than $825,000 in damages in a federal court wrongful-death suit, alleging their father died after receiving dozens of unwarranted electric shocks from a faulty implantable defibrillator made by St. Jude Medical Inc. The lawsuit alleges Harry Welshans died in February 2007 because his St. Jude model V-193 defibrillator delivered unneeded shocks to his heart at a rate of about one every two minutes in the hours before his death.

March 16, 2009 MEDTRONIC SAYS SPINAL DEVICE SUIT IS PREEMPTED, Lovett v. Medtronic, 16 No. 2 Andrews Med. Devices Litig. Rep. 7, Andrews Medical Devices Litigation Reporter
Arguing the suit is barred because it suggests that Medtronic follow design, labeling and manufacturing standards other than those established for the device through the Food and Drug Administration's premarket approval process, Medtronic Inc. has asked a Nevada federal judge to dismiss as federally preempted a suit by a woman who says she was injured when her implanted spinal stimulator stopped working and required removal after two years.

Product Defect (Hip Implant): STRYKER SUED OVER SQUEAKY HIP IMPLANT, Gelber v. Stryker Corp., 16 No. 2 Andrews Med. Devices Litig. Rep. 8, Andrews Medical Devices Litigation Reporter March 16, 2009
Michigan-based Stryker removed to New York federal court a product liability and breach-of-warranty lawsuit filed by Jeannette Gelber who says she has been plagued by squeaking noises from her Trident artificial hip since shortly after it was implanted. Stryker removed from the Rockland County Supreme Court to the U.S. District Court for the Southern District of New York Feb. 13, citing diversity jurisdiction.

ARTHREX IS SUED OVER INJURIES CAUSED BY TRACTION DEVICE, Thornton v. Arthrex Inc., 16 No. 2 Andrews Med. Devices Litig. Rep. 9, Andrews Medical Devices Litigation Reporter March 16, 2009
Arguing Patricia Thornton's personal injury suit should be dismissed because the assembly device (an Arthrex modular joint distractor) featured a state-of-the- art design approved by the Food and Drug Administration, medical device maker Arthrex Inc. has moved to dismiss the lawsuit filed after the Ohio health care worker was allegedly injured after she was struck by part of a traction assembly device hanging over a patient's bed.

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Two interesting criminal law decisions this week

Two interesting criminal law decisions from Monday, March 09, 2009, suggesting an effort to resolve the growing reexamination of the constitutionality of SORNA and death penalty

U.S. v. Ambert,(C.A.11 (Fla.))
SONRA's sex offender registration requirements did not violate due process.
The Eleventh Circuit has held that the Sex Offender Registration and Notification Act (SORNA) does not violate the rights of a defendant’s substantive or procedural due process rights, who was a convicted sex offender. SONRA causes a defendant's name to be placed on a sex offender registry without first a hearing to assess the risk of recidivism and current dangerousness, or with the opportunity to challenge his prior conviction. The Court applied the lower rational relation test of constitutionality and concluded that SONRA's restrictions were rationally related to Congress' legitimate goal in protecting the public from recidivist sex offenders. The publication of truthful information that was already available to the public did not infringe the fundamental constitutional rights of liberty and privacy.


Thompson v. McNeil ,(U.S.)
Criminal Justice - Execution following 31 years on death row as cruel and unusual punishment -- Certiorari Denied
The U.S. Supreme Court denied certiorari in a case in which the Eleventh Circuit Court of Appeals held that the execution of a murder defendant following a 31-year term on death row did not violate the Eighth Amendment's prohibition of cruel and unusual punishment. The Court issued three separate opinions concerning the denial. Justice Stevens issued a statement respecting the denial of the petition, but noted that in his earlier opinion concurring in the judgment in Baze v. Rees, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), he had suggested that the time had surely arrived for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces. The petition in this case, he said, set forth costs that merited consideration in any such study. He noted that, as the incarcerated awaited execution, the defendant was spending almost 24 hours a day in isolation in a 6-by 9-foot cell. Two death warrants had been signed against him and had been stayed only shortly before he was scheduled to be put to death. The Court concluded that, while the length of the defendant's confinement under sentence of death was extraordinary, the concerns his case raised were not unique. Today, condemned inmates await execution for an average of nearly 13 years. Furthermore, the reversible error rate in capital trials is staggering.


Justice Breyer strongly dissented from the denial of certiorari. He noted Justice Thomas's suggestion, in his concurrence in the denial of certiorari, that the defendant could not now challenge the constitutionality of the delay because much of that delay had been his own fault, in that he had caused it by choosing to challenge the sentence. Justice Breyer responded to Justice Thomas’s analogy by suggesting that a defendant's decision to exercise his right to seek appellate review of his death sentence could not automatically waive a claim that the Eighth Amendment proscribed a delay of more than 30 years. The delay was partly caused by the sentencing judge's failure to allow the presentation and jury consideration of nonstatutory mitigating circumstances. At resentencing, the defendant presented substantial mitigating evidence, not previously presented, that suggested that he might be significantly less culpable than his codefendant, who did not receive the death penalty. Justice Breyer said that he referred to this evidence only to point out that it was fair, not unfair, to take account of the delay the State caused when it initially refused to allow him to present it at the punishment phase of his trial. It was the punishment, not the gruesome nature of the crime, which was at issue.


Justice Thomas concurred in the denial of certiorari. He rejected the proposition that a defendant could avail himself of the array of appellate and collateral procedures and then complain when his execution was delayed. The issue was not whether a death-row inmate's appeals waived any Eighth Amendment right, he reasoned; rather, it was whether the death-row inmate's litigation strategy, which delayed his execution, provided a justification for the invention of a new Eighth Amendment right. It did not, Justice Thomas said. Justice Thomas also disagreed with Justice Stevens that other aspects of the criminal justice system required a fresh examination of the costs and benefits of retaining the death penalty. He also said that Justice Stevens had altogether refused to take into consideration the gruesome nature of the crimes that legitimately lead States to authorize the death penalty and juries to impose it. The facts of this case, which involved the defendant and his codefendant torturing the victim until she died, illustrated the point. Justice Thomas said it was the crime, not the punishment imposed by the jury or the delay in the defendant's execution, that was unacceptably cruel. (Case below: Thompson v. Secretary for Dept. of Corrections, 517 F.3d 1279 (C.A.11-Fla. 2008).)

The Law Lady. For more info, go to www.easleyappellate.com

A “bandeja paisa”: recent trends in insurance law, rising litigation against brokers and a new Florida Bill that exempts certain parts of claims files

Insurance Broker Liability To Clients: Two Recent Multimillion-Dollar Cases May Signal A Growing Trend Toward Broker Liability, Geoff Fallon, 4 No. 21 Andrews Insurance Bad Faith Litig. Rep. 8, Andrews Insurance Bad Faith Litigation Reporter February 24, 2009
Geoff Fallon, a senior vice president of Risk Audit LLC, discusses two recent verdicts in favor of insureds against their brokers and the implications for broker liability. In the fourth quarter of 2008 two jury trials resulted in judgments of $24 million against Aon Corp. and $48.5 million against Marsh USA Inc., the nation's two largest insurance brokers. In both cases the insureds, i.e., the brokers' clients, sued their brokers after arbitrations with the insurance carriers found no coverage.

Claim against agent unrelated to coverage, ind. Fed. Judge says, Biernacki v. State Farm, 4 No. 21 Andrews Insurance Bad Faith Litig. Rep. 4, Andrews Insurance Bad Faith Litigation Reporter February 24, 2009
An Indiana federal judge has refused to dismiss a misrepresentation claim against an insurance agent but sent the case back to state court because the presence of the agent as a defendant defeats diversity jurisdiction. In 1988, the opinion says, Barbara and Leslie Biernacki bought a State Farm policy from agent Mick Gapen. The policy was in force when a fire caused more than $70,000 in damage to their home in Crown Point, Ind., on Sept. 3, 2007.When State Farm denied coverage, the Biernackis sued the agent.

New Orleans Doctor Covered For Shutdown Caused By Katrina, Yount v. Lafayette Ins. Co., 4 No. 22 Andrews Insurance Bad Faith Litig. Rep. 4, Andrews Insurance Bad Faith Litigation Reporter March 10, 2009
A Louisiana appeals court upheld a $70,000 award for a doctor forced out of her office suite by Hurricane Katrina, finding that she was entitled to lost income under her business-interruption policy. The 4th Circuit Court of Appeal said the interruption of Dr. Beverly Yount's practice was caused by damage from wind and rain, not floodwater, and thus covered by the policy.However, the court upheld a directed verdict in the insurer's favor on Yount's claim for statutory bad-faith penalties.

Civil Procedure, Class Actions, Commercial Law, Consumer Protection Law, Insurance Law Troyk v. Farmers Group, Inc. , California Case No. D049983, March 10, 2009
In a class action suit against Farmers Insurance, grant of plaintiff's motion for summary judgment is reversed where plaintiff did not carry his burden to show there is no triable issue of fact regarding the element of causation for his standing under the Business and Professions Code to prosecute the Unfair Competition Law cause of action on behalf of the class members. Defendant violated the Insurance Code's disclosure requirement, as the term "premium" includes a service charge imposed for the payment in full of the stated premium for policy's one-month term, which was not disclosed in the policy.

2009 Florida House Bill No. 961 111th Regular Session (SUMMARY - NETSCAN) Pub. Rec./Florida Insurance Guaranty Association; Provides exemption from public records requirements for specified claims files, medical records that are part of claims file, information relating to medical condition or medical status of claimant, & records pertaining to matters reasonably encompassed in privileged attorney-client communications of Florida Insurance Guaranty Association; provides for limited duration of exemption for claims files, etc. EFFECTIVE DATE: 07/01/2009 2009 FL H.B. 961 (NS)

Insurer May Rescind Life Policy After Discovering Untruths, Northwestern Mut. Life Ins. Co. v. Gil, 4 No. 21 Andrews Insurance Bad Faith Litig. Rep. 1, Andrews Insurance Bad Faith Litigation Reporter February 24, 2009
A federal judge in Connecticut has allowed an insurer that allegedly discovered numerous false statements on a life insurance application to rescind a murder victim's $15 million policy. The decision means the widow's counterclaims, including one for bad faith, were dismissed, and she will collect nothing under the policy.According to the opinion, Northwestern Mutual Life Insurance Co. issued a $15 million life insurance policy to Andrew Kissel. Kissel had a history of mental illness.

The Law Lady. For more info, go to www.easleyappellate.com