Archive for July, 2010

Caution to Plaintiff’s Counsel –If Medicare Paid your Client you may be subject to a lien and can be personally liable for repayment

Thursday, July 22nd, 2010

Lawyers Mutual Insurance Company in their July 2010 newsletter warned attorneys who settle cases in which the plaintiff may have been paid “conditional” medicare benefits, that the government has a lien against any funds received by the client.   The problem is that they have been holding attorneys liable when the collect back the conditional benefits they paid before the lawyer obtained payment for the plaintiff.   The Lawyers Mutual Ins. Company article suggests ways to protect yourself.  Go to and look for their newsletter for July 2010. 

 If you pay out funds to your client who has received medical benefits under Medicare or ERISA for the injury you just litigated to a settlement or final judgement and you didn’t protect the feds [OR EMPLOYER]  on the  medical expenditures paid by Medicare or the ERISA employer then the feds [or your client’s employer if it’s ERISA] may come knockin’ on your door.  You’ll be toast!!!  They have a great lien law.  Most of you already know this.  Then this is a reminder to the cognoscenti.

This has been the law for a long time but the feds and employers are more fixed and serious as we head into the belly of the medical health beast these days.

As for ERISA employer health plans, get a copy of the client’s ERISA health plan and read [and understand] it.  Longaberger Co. v. Kolt, 586 F.3d 459 (6th Cir. 2009)

Sen. Mitch McConnell Admits Partisan Delay of Judicial Nominees

Thursday, July 15th, 2010

Hagan smokes out McConnell

Sen. Kay Hagan tried again on the Senate floor yesterday to get a confirmation vote for two North Carolina judges nominated to serve on the 4th Circuit U.S. Court of Appeals.

She failed, but she did manage to smoke out Republican leader Mitch McConnell as the chief obstacle.

After strong approval by the Judiciary Committe in January, Judges Jim Wynn and Albert Diaz have been stalled. No one admitted putting a hold on their nominations … but it came out yesterday when Hagan requested unanimous consent to schedule a floor debate at a time to be determined by the majority leader.

McConnell objected and stated his reasons: partisan payback.


Yes, both parties have played stupid political games with judicial nominations in the past. But how about giving Wynn and Diaz a pass? Both Hagan, a Democrat, and North Carolina’s Republican senator, Richard Burr, strongly support them. They won bipartisan backing in the Judiciary Committee (except for one Republican who voted against Wynn). The vacancies on this court need to be filled.

What does this tit-for-tat accomplish except guarantee it will never end? Senate Republicans, it’s past time to allow a floor vote on Wynn and Diaz.

Here’s a transcript of yesterday’s exchange on the Senate floor:

Mrs. HAGAN. Mr. President, I come to the Senate floor this afternoon to discuss two nominees for the Fourth Circuit Court of Appeals—Judges Jim Wynn and Albert Diaz.

    When I came to the Senate, I had high hopes of increasing the number of North Carolinians on the court. North Carolina is the fastest growing and largest State served by the Fourth Circuit. Yet only 1 of the 15 seats is filled by the abundant talent from our State, and over the past century North Carolina has had fewer total judges on the court than any other State.

    Furthermore, there have been inexcusable vacancies on this court throughout history. Given that the U.S. Supreme Court only reviews 1 percent of the cases it receives, the Fourth Circuit is the last stop for almost all Federal cases in the region. We must bring this court back to its full strength. Since 1990, when this court was granted 15 seats, it has never had 15 active judges.

    Judge Wynn brings decades of judicial experience to the bench. He has served on the North Carolina Court of Appeals since 1990 and had a brief tenure on the State supreme court. He has been the chair of the bar association’s Judges Advisory Committee on Ethics.

    Additionally, Judge Wynn has served on Active and Reserve Duty in the Navy for 30 years and was a certified military trial judge. He has been honored for his extraordinary service several times, including three Meritorious Service Medals.

    Judge Diaz has served since 2005 as one of North Carolina’s three business court judges. Prior to that, Judge Diaz was a judge on the State superior court for nearly 4 years.

    As a business court judge, Judge Diaz has handled complex business cases. He started as a lawyer in the U.S. Marine Corps, was an appellate counsel in the Navy’s Office of the Judge Advocate General and has been a judge in the Marine Corps Reserves.

    Judge Diaz also has extensive experience in business litigation and has served on the State Judicial Council which advises the State supreme court’s chief justice on ways to improve the courts. He is a graduate of New York University Law School, with a graduate degree in business from Boston University and undergraduate degree in business from the University of Pennsylvania.

    I note that both judges have received unanimous ratings of well qualified from the American Bar Association.

    Additionally, both men’s confirmation to this Federal bench will be historically significant, as Judge Diaz will be the first Latin American on the Fourth Circuit and Judge Wynn will be the fourth African American to ever serve on this bench.

    These fine men have the support of both myself and my colleague from North Carolina, Senator Burr. Editorials and newspapers throughout North Carolina have praised these nominations and have urged their swift confirmation. The Charlotte Observer said Judges Wynn and Diaz are “widely regarded as intelligent, ethical judges who have won respect for their judicial and military careers. They are the kind of judges the federal bench needs . . . Their quality is so unquestioned that only partisanship could stall their nominations.”

    Unfortunately, I worry that is what is happening. Both Judge Wynn and Judge Diaz were approved by the Senate Judiciary Committee on January 28—Judge Diaz unanimously and Judge Wynn with only one dissenting vote. But for over 5 months now, the nominations have languished on the calendar. It is past time that these two fine judges be confirmed to the Fourth Circuit.

    Mr. President, as in executive session, I ask unanimous consent that at a time to be determined by the majority leader, following consultation with the Republican leader, the Senate proceed to executive session and consider en bloc the following nominations on the Executive Calendar: Calendar No. 656, Albert Diaz, to be a U.S. Circuit Judge for the Fourth Circuit, and Calendar No. 657, James Wynn, to be a U.S. Circuit Judge for the Fourth Circuit; that the nominations be debated concurrently for up to 3 hours, with the time equally divided and controlled between Senators Leahy and Sessions or their designees; that upon the use or yielding back of time, the Senate proceed to vote on confirmation of the nominations in the order listed; that upon confirmation, the motions to reconsider be considered made and laid upon the table en bloc, the President be immediately notified of the Senate’s action, and the Senate resume legislative session.

    The PRESIDING OFFICER. Is there objection?

    Mr. McCONNELL. Mr. President, reserving the right to object, and I will be objecting.

    The PRESIDING OFFICER. The Republican leader.

    Mr. McCONNELL. Mr. President, I appreciate the perspective of the junior Senator from North Carolina, but my perspective on the Fourth Circuit covers a little longer period of time.

    I advise my friend that for the last Congress of the Bush administration, the Democratic majority only confirmed one nominee to the Fourth Circuit. As a result, the circuit was fully one-third vacant with five vacancies when President Bush left office.

    These vacancies were not due to President Bush’s failure to nominate several qualified candidates. As a result, my Democratic friends had to resort to creative reasons to justify keeping these seats open.

    To give an example, the Fourth Circuit seat from Maryland was kept vacant for the entirety of the Bush administration—8 years. The last nominee for that seat the Democrats objected to was a fellow named Rod Rosenstein. Nobody could reasonably contest his credentials, so my Democratic colleagues turned his virtues into a vice, saying he was doing too good a job as U.S. attorney in Maryland to be promoted to the circuit court.

    Despite the unfair treatment that Mr. Rosenstein received, many Senate Republicans in this Congress, including myself, supported President Obama’s nominee to this seat, Andre Davis.

    Also in this Congress, Republicans, including myself, supported the confirmation of Barbara Keenen of Virginia to the Fourth Circuit. With her confirmation, the Senate has confirmed twice as many nominees to the Fourth Circuit as occurred during the entire last Congress of the Bush administration when Democrats controlled the Senate.

    With respect to the vacancies from North Carolina, President Bush put up a nominee who satisfied all of Chairman Leahy’s criteria for confirmation—Judge Robert Conrad. Judge Conrad had the strong support of his home State Senators. He received the blessing of the ABA, the Democrat’s so-called gold standard, and he would fill a judicial emergency. Yet Judge Conrad could not even get so much as a hearing.

    In fact, the Senate has been processing President Obama’s judicial nominees, both district and circuit court nominees, faster than it processed President Bush’s judicial nominees.

    How has the President responded to our efforts to work in good faith? He recess appointed Donald Berwick before the Finance Committee could even schedule a hearing on him, and despite the fact that Republicans on that committee requested that a hearing be scheduled on his nomination.

    Let me give my colleagues a brief timeline of the nomination of Donald Berwick.

    On April 19, 2010, the President nominated Dr. Berwick to serve as Administrator of the Centers for Medicare and Medicaid Services. Less than 3 months later, and without a Senate Finance Committee hearing taking place, the President recess appointed Dr. Berwick. The reason offered was that the Republicans were blocking this vital appointment, so they could wait no longer to follow the constitutional process of Senate confirmation. Yet this position was vacant for the first 16 months of the Obama administration and has not had a confirmed Administrator since 2006, since my friends on the other side of the aisle were blocking the Bush administration nominee.

    Democrats did not schedule so much as a committee hearing for Donald Berwick. The mere possibility of allowing the American people the opportunity to hear what he intends to do with their health care was reason enough for this administration to sneak him through without public scrutiny.

    Given the President has been so dismissive of the Senate’s right to provide advice and consent under the Constitution, I am not inclined at this point to consent to the request proposed by my friend from North Carolina. Therefore, Mr. President, I object.

    The PRESIDING OFFICER. Objection is heard.

    The Senator from North Carolina.

    Mrs. HAGAN. Mr. President, it is disappointing that we cannot get consent for these judges. Senator Richard Burr and I together introduced these two individuals at the Judiciary Committee hearing. I will say that I remain committed to working with my colleagues on both sides of the aisle, as well as any Senator who has concerns over either judge, to working toward a reasonable solution that would allow an up-or-down vote on Judges Wynn and Diaz.

    Mr. President, I yield the floor.

No Texting Law Goes Into Effect – Minors cannot use cell phones while driving

Thursday, July 15th, 2010

Ban extends to cell phone use for 16- and 17-year-old drivers

FRANKFORT, Ky. – Governor Steve Beshear’s ongoing effort to make Kentucky roads safer takes a big step on Thursday, July 15, when a new law takes effect to ban texting for all drivers and cell phone use for drivers under 18.

Kentucky recorded more than 57,000 crashes last year – and more than 200 fatalities – attributed to driver distraction and inattention.

“I was proud to support and sign this law into effect, and strongly believe this will further our efforts to reduce fatalities on Kentucky roadways,” Gov. Beshear said.  “Safety is a top priority of my administration, and this law will help increase awareness of the dangers of texting while driving and encourage drivers to stay focused on the road.”

The law bans texting for drivers of all ages while the vehicle is in motion.  For drivers over 18, it allows the use of global positioning devices and reading, selecting or entering a telephone number or name for the purpose of making a phone call.  Texting is allowed only to report illegal activity or to request medical or emergency aid.

“We are convinced that this new law will save lives,” said Acting Transportation Secretary Mike Hancock. “The message to drivers is to eliminate distractions and stay focused on the road. Driving a motor vehicle requires your undivided attention.”

For drivers under 18, use of all personal communication devices such as cell phones and pagers is not allowed while the vehicle is in motion.  The use of a global positioning system is allowed, but manually entering information must be completed while the vehicle is stopped.  Emergency and public safety vehicles are exempt when the use of a personal communication device is essential to the operator’s official duties.

In December 2009, Gov. Beshear launched his Eyes on the Road effort –an executive order prohibiting text messaging by state employees who are driving government-owned vehicles.  In April 2010, Gov. Steve Beshear signed the law banning texting for all drivers and cell phone use for drivers under 18.

Law enforcement officers will issue warnings until Jan. 1, 2011.  On or after Jan. 1, violators will be liable for fines of $25 on a first offense and $50 on each subsequent offense.

“Even though our total number of fatalities for 2009 was less than 2008, those killed in crashes resulting in distraction, inattention and cell phone use increased,” said Chuck Geveden, executive director of the Kentucky Office of Highway Safety. “This legislation is sure to save lives, prevent injuries and cut down on crashes across Kentucky.”

According to the National Highway Traffic Safety Administration, nearly 6,000 people died in 2008 in crashes involving distracted drivers, and more than a half million were injured. Inexperienced drivers under 20 years old have the highest proportion of distraction-related fatal crashes.

Information on distracted driving is at


Tuesday, July 13th, 2010

In a surprising ruling, Ky. Judicial Campaign Rules are turned upside down. The ruling demonstrates the growing trend of the Federal Courts to void laws or ethics rule that limits free speech of lawyers and judges.

The Sixth Circuit Court of Appeals in Cincinnati,  on Tuesday cleared the way for Kentucky judicial candidates to raise money and run with political party affiliations, but ordered a lower court to consider whether the candidates can offer specific positions on issues.

The courts have traditionally kept their hands off the ethics rules and judicial conduct rules adopted by the states, but in recent years have nibbled away those rules.

Judge Jeffrey Sutton of the Cincinnati-based U.S. 6th Circuit Court of Appeals said banning campaign fundraising and party affiliations violated the First Amendment’s guarantee of free speech.

“Elections are elections, and the same First Amendment applies to all of them,” Sutton wrote for the three-judge panel.

In 2008, U.S. District Judge Karen Caldwell also threw out the Kentucky Judicial Conduct Commission’s rule against judicial candidates identifying themselves by party and raising money, but she upheld a ban on judicial candidates taking stands on specific issues.

Judge Thomas B. Wiseman of the 6th Circuit said he would have upheld the ban on candidates professing a stand on specific issues. Wiseman said candidates know when such a stance has been taken and states can deal with those on a case-by-case basis.

“Is there any doubt about a commitment when a candidate professes to believe life begins at conception?” Wiseman wrote. “Is there any committed bias in favor of a political party when a candidate for judge states a ‘strong belief in the right to keep and bear arms’?”

James Bopp, a Terre Haute, Ind., attorney who represented the plaintiff, said the ruling brings judicial campaigns into line with other political races.

“It just seems absurd that, as I think the 6th Circuit found, that you would have campaigns for judicial office and candidates could not do things like this that are so basic to running for office,” Bopp said.

The decision could affect Ohio, where judicial candidates are barred from identifying a party affiliation after the primary election.

“It would certainly make it unenforceable,” Bopp said of Ohio’s rule. “That doesn’t mean they may not try to enforce it. But, it certainly makes it unenforceable.”

The Ohio Attorney General’s office filed a brief in the case seeking to uphold the state’s ban. Ted Hart, a spokesman for the Ohio Attorney General’s Office, said office is analyzing the decision and its possible impact on the state, even though the ruling didn’t directly address Ohio.

Former Kentucky Republican Party official Marcus Carey, who lost the 2006 race to Kentucky Supreme Court Justice Wil Schroeder, challenged Kentucky’s rule that said judicial candidates must not “intentionally or recklessly” make a statement that could be perceived “by a reasonable person” as committing them to rule a certain way on an issue they could hear.

The new rule was drafted after a judge struck down a previous one that prevented judicial candidates from making statements that “commit or appear to commit” to positions on cases they likely would hear.

Seven states, including Texas, Louisiana and Pennsylvania, already allow judicial candidates to run affiliated with a political party. Nine other states, including North Carolina, Oregon and Wisconsin, ban judges from running as politically affiliated. Fourteen states that elect or vote to retain judges have no comparable rule.

Certiorari  could be requested from U.S. Supreme Court for their consideration. It is also possible that the intermediary step of asking for an En Banc ruling of the entire 6th. Circuit might be considered.

Lindsay Lohan Has No Intention of Going to Jail – Blames Her Lawyer – Anyone Want To Bet On that?

Monday, July 12th, 2010

Lindsay Lohan might have been sentenced to 90 days in the slammer last week by an angry judge, but that doesn’t mean the troubled young actress is going down without a fight.

“Lindsay has no intention of going to jail,” a friend of Lohan’s tells me. “The only thing that Lindsay did wrong was hire the wrong attorney and now she has fixed that.”

Lindsay now has a new attorney, Stuart V. Goldberg, who has arrived in Los Angeles from Chicago claiming, “We’re going after them.”
Lindsay is supposed to surrender to the court by July 20, but now that her new lawyer is in place, sources tell me Lindsay is confident she won’t have to spend a minute in jail.

“She is paying her new lawyer a fortune to fix this mess. She doesn’t care what it takes,” an insider tells me. “If Lindsay needs to start a Facebook campaign or set up protests or something like that she is totally into it. They are treating Lindsay differently because she is a star, so it’s about time she used her star power to help her. She’s seen the movie ‘Chicago’ several times, so it’s not like she doesn’t know how this sort of thing works!”

Will someone please hand Mr. Goldberg his tap shoes, please? I think it’s time for the fancy footwork rag!

Of course it won’t be the end of the world — or financial success — for LiLo if she does serve time; I previously discovered Lohan could earn a whopping payday (to the tune of $1 million) for an exclusive post-jail interview.

“Financially, it’s the best thing that could have ever happened to Lindsay,” a magazine insider tells me. “It’s no secret that Lindsay has been in financial trouble for a while. She will earn more money from her post-prison interview than she ever earned acting

Florida chief justice creates innocence panel

Saturday, July 3rd, 2010

The new chief justice of the state Supreme Court created the Florida Innocence Commission on Friday, saying it will study issues dealing with wrongful convictions over the next two years.

Chief Justice Charles Canady signed an administrative order establishing the 23-member panel just a day after beginning his two-year term overseeing the high court. Panel members include legislators, judges, prosecutors, law enforcement officials and some of Florida’s top lawyers.

Canady called the conviction of the innocent “a grave injustice” and ordered the panel to submit a preliminary report, including proposals for preventing those injustices, by next June 30. Final recommendations are to be presented a year later.

“The importance of having this Innocence Commission is so we can learn lessons from our past mistakes,” said D’Alemberte, a former American Bar Association president and ex-legislator.

DNA testing alone has exonerated 12 wrongly convicted people in Florida. There are no records on how many have been cleared for other reasons but the DNA cases probably are just a small part, said Seth Miller, executive director of the Innocence Project of Florida.

The Innocence Commission  will focus on policy. A similar commission in North Carolina made recommendations dealing with such issues as mistaken witness identification, improper collection, labeling and preservation of evidence and false confessions.

Based on an AP story