Med Mal News
October 31, 2005
The latest news you need to know.
Bifurcating Medical Malpractice Cases
October 31, 2005
A classic medical malpractice trial generally conjures up images of strategic trial lawyers, sympathetic plaintiffs, and zealous expert witnesses all culminating in one statement from the jury regarding both liability and damages. This vision -- one of a unitary trial -- contrasts starkly with a device of civil procedure called a bifurcated trial. One of the primary methods of bifurcating a trial is to separate the liability phase from the damages phase. Though widely utilized in other civil cases, bifurcation is seldom requested -- or granted -- in medical malpractice cases. What is the current state of the law and its application to medical malpractice cases, and what are some practical considerations that may factor into the decision whether to seek bifurcation?
Plaintiff Has Standing in Defective Device Lawsuit
October 31, 2005
A patient implanted with a medical device is vulnerable to injury if that device is defective, even long after the operation and recovery phases have passed. Some courts have recognized a right to certain types of recovery when there is a prospect of future injury, but others have not. In the recent case of <i>Sutton v. St. Jude Medical S.C. Inc.</i>, 2005 U.S. App. LEXIS 18013 (6th Cir. 9/23/05), the U.S. Court of Appeals for the Sixth Circuit was asked to answer a related threshold question of first impression in a medical monitoring case: Does an increased risk of harm requiring current medical monitoring serve as a sufficient injury in fact to confer standing to sue?
Unallocated Family Support
October 31, 2005
In an article in the January, 2004, issue of The Matrimonial Strategist, I discussed the use of temporary support orders in a divorce action to allow the payor to deduct undifferentiated family support payments or for the purpose of paying debts, such as counsel fees, in light of a series of recent cases. The leading case disallowing the deduction of family support payments is Lovejoy v. Commissioner, 293 F.3d 1208 (10th Cir. 2002) (Colorado law; family support payments) but there are decisions involving the law of other states, mainly found in a series of Tax Court memorandum decisions. Some more recent cases now cast doubt on these precedents, leaving resolution of the issue uncertain, both for temporary orders, which by definition abate with the death of one of the parties to the pending divorce action, and for permanent marital settlements. They also raise the question whether an explicit termination provision would be effective if federal tax authorities conclude that the relevant state court would decide that the termination clause could not apply to the payor's child support obligation included within the support payments required by the order. A survey of state law reveals that this question is unresolved in almost every state, leaving the field wide open for federal tax determination of an important state law issue.
Litigation
October 31, 2005
Recent rulings of importance to you and your practice.
'Moral' Obligation to Adult Child Found No Bar to Restitution
October 31, 2005
In this age of corporate greed, the courts are faced with many new issues surrounding restitution. The appeal of Bernard Jaffe Jr. gave the Second U.S. Circuit Court of Appeals its first opportunity to define the term "dependent" under the Mandatory Victims Restitution Act of 1996, which requires district courts to order restitution to compensate victims for their losses "without consideration of the economic circumstances of the defendant."
Use And Abuse Of Experts In Matrimonial Cases
October 31, 2005
Most of us are familiar with using CPAs to value businesses, and psychologists and psychiatrists to make mental health assessments in custody cases. Pharmacological and DNA experts have become commonplace; so have employment experts in maintenance cases. However, there are many other uses of experts. Our imagination is the only limitation. Nevertheless, there are many things to consider when employing experts. Once you decide how to use your expert, you then must consider the expert's qualifications, the application of hearsay and other rules of evidence, as well as standards of professional practice.
Internet Job Applications
October 31, 2005
Regulations established by the Labor Department's Office of Federal Contract Compliance Programs (OFCCP) require covered federal contractors and subcontractors to collect information about the gender, race and ethnicity of each "applicant" for employment. On Oct. 7, the OFCCP issued a final rule that adds a definition of "Internet applicant" and requires contractors to collect gender, race, and ethnicity information from certain individuals who apply through the Internet. 41 C.F.R. Part 60-1.
