Utah Supreme Court Upholds Constitutionality of Products Liability Statute

The Utah Supreme Court issued Egbert v. Nissan (“Egbert II”) in which it has expressly held:

1) The rebuttable presumption of non-defectiveness in product liability cases is constitutional and has been effective in Utah for more than 20 years; and

2) Restatement (Third) Torts section 16(b-d) regarding enhanced injury claims is rejected.  An “enhanced injury occurs when an injury caused by some other event is increased or enhanced due to a defective product.”  The Court found an inherent conflict between the restatement and Utah’s long-standing abolishment of joint and several liability and adoption of apportionment of fault.

Daniels v. Gamma: a Basketful of Medical Malpractice Rulings

In Daniels, the Utah Supreme Court addressed a number of medical malpractice issues together with general trial issues.  Here is the gist:

1. The statute of limitations in a medical malpractice action does not begin to run until the patient discovers the legal cause of his/her injury.  “Legal cause” includes the fact that the patient has been injured, that the injury was caused by negligence, and the precise causal event leading to the injury.

2.  Evidence that two defendant doctors were insured by the same company is not relevant evidence and should be excluded at trial unless there exists a “substantial connection between the witness and the insurance company,” such as where the defendants have an employment or control relationship with the insurance provider.

3. A claim for punitive damages under a gross negligence cause of action may only succeed if the gross negligence is both “knowing” and “reckless.”  The latter element is part of the gross negligence cause of action while “knowing” is a separate element that must be plead and proven in addition to the recklessness.

4. Physicians owe their patients fiduciary duties, however, those duties may be abrogated or modified by statute.  In this case, the duties of disclosure are, in part, abrogated by Utah’s informed consent statute.  A noted exception is the “Nixdorf” disclosure requirement in which a physician has a duty “to disclose to his patient any material information concerning the patient’s physical condition.”

The Court’s clarification regarding breach of fiduciary duty is a potential landmine.  Breach of fiduciary duty often carries by implication the threat of punitive damages.  As noted, there must be proof of knowing and reckless disregard of the patient.  Such allegations, however, may be perceived as easier to make when fiduciary duties are applied instead of the usual professional malpractice or negligence claim.  I suspect that there is more fruit on this tree that this Court is willing to pick in the right case (i.e., the Court declined to rule on Daniels’ assertion of duties of good faith and loyalty because the claims were not adequately briefed).  Good luck.

A Final Order in Utah State Court Automatically Disposes of Any Prior Inconsistent Rulings

It seems like this principle comes up more often than it should: “When a final disposition of a case is entered by a district court, any unresolved motions inconsistent with that disposition are deemed resolved by implication.”  State v. Mullins, 2005 UT 43, ¶ 8, 116 P.3d 374.

Utah Federal Court Is Where I Want to Be . . .

The 10th Circuit recently reviewed the differing standards and burdens applicable in motions for summary judgment in Milne v. USA Cycling.  The court reviewed both Pearce v. Utah Athletic Foundation, 179 P.3d 760, 767 (Utah 2008) and Berry v. Greater Park City Co., 171 P.3d 442, 449 (Utah 2007) related to the proper summary judgment standard.  Ultimately, however, the court found that “although we will look to Utah law to determine what elements the plaintiffs must prove at trial to prevail on their claims we will look exclusively to federal law to determine whether plaintiffs have provided enough evidence on each of those elements to withstand summary judgment.”

If you have a case for a defendant that is susceptible to a motion for summary judgment, get it out of state court and into federal court, and keep it there at all costs.  Your chances of securing summary judgment are better.  Happy hunting.

Utah Law: Law of the Case Doctrine vs. Mandate Rule

The Utah Supreme Court recently clarified a bit of Utah law that has vexed me in a number of my cases recently: when and to what degree a district court is bound by its previous decisions in a case.

In Mid-America Pipeline Co. v. Four-Four, Inc., 2009 UT 43, __ P.3d __, the Supreme Court reiterated the long-held principle that “under the law of the case doctrine, a decision made on an issue during one stage of a case is binding in successive stages of the same litigation.”  (Citing IHC Health Servs., Inc. v. D & K Mgmt., 2008 UT 36, ¶ 26, __ P.3d __).  This rule remains effective regardless whether the judge changes or remains the same.  Id. at ¶ 11.  “Law of the case does not prohibit a district court judge from revisiting a previously decided issue during the course of a case, . . . [r]ather, “the doctrine allows a court to decline to revisit issues within the same case once the court has ruled on them.”  Id. at ¶ 26 (emphasis added by Mid-America court).

The trial court may, sua sponte, revisit any previous rulings in a case.  No motion is required and the court can refuse to reconsider its previous rulings.  There are, however, three exceptions which require a court to reconsider its previous, unappealed, rulings: “‘(1) when there has been an intervening change of authority; (2) when new evidence has become available; or (3) when the court is convinced that its prior decision was clearly erroneous and would work a manifest injustice.’”  Id. at ¶ 14 (citing IHC Health Servs., Inc., 2008 UT at ¶ 34).

Another quasi-exception to the law of the case doctrine lies in the “mandate rule.”  “[A] district court’s power to reconsider decided issues is limited when the case has been appealed and remanded.”  Mid-America, 2009 UT at ¶ 13 (citing IHC Health Servs., 2008 UT 36, ¶ 27).  “The mandate rule, unlike the law of the case before a remand, binds both the district court and the parties to honor the mandate of the appellate court.”  Id. “Thus, the decisions of an appellate court become the law of the case and cannot be reconsidered on remand.”  Id.

You are now informed.  Good luck.

Settlement Agreements Revisited

As an update to my post on securing your settlement agreement, there is one more point to note: if you want the court to address certain issues that may depend on the existence of an admission of liability, it must be contained in the settlement agreement.  In Iron Head Construction, Inc. v. Gurney, the Utah Supreme Court reviewed a situation in which the parties settled their contract dispute but expressly agreed that pre-judgment interest would be determined by the district court.  The Supreme Court reversed an award of pre-judgment interest and the court of appeals.  Here are the highlights:

“where the settlement does not rest on a finding or contain a stipulation of liability and damages against a party, prejudgment interest is unavailable.”

“The settlement amount cannot properly be characterized as an award of damages for which prejudgment interest should be awarded.”

Add this to your arsenal.  Be very careful what you agree to in the heat of battle or negotiations.

Utah Supreme Court Apportions Medical Expenses in Worker’s Compensation Cases

Reversing a long-held position of the Labor Commission, the Utah Supreme Court held in Smith v. Labor Commission, 2009 UT 19, __ P.3d __, that when an industrial injury is compensable at less than 100% and the petitioner’s injury is apportioned among work-related and non-work-related causes, the compensation—including medical expenses—is apportioned as well.  The Labor Commission previously apportioned “compensation” but awarded 100% of medical expenses.  The Supreme Court clarified that medical expenses are “compensation” under the Utah Labor Code.  This is a significant departure since a worker whose injury was only 10% related to his employment previously could obtain an award of 100% of his medical expenses.

Utah Legislature May Materially Alter Medical Malpractice Claims

The Utah Legislature currently has a bill before it, SB 79, that would increase the standard of proof required in medical malpractice cases against health care providers, i.e., doctors and hospitals, to a clear and convincing evidence standard for all care provided in the emergency department.  The heightened standard would apply until the patient is stabilized and either admitted to another department or is discharged.  The heightened standard would also continue with the patient if transported to another facility.  If passed, emergency room physicians and hospitals would receive a broad protection from lawsuits since the prevailing “preponderance of the evidence” standard is the evidentiary equivalent of “more likely than not,” i.e., at least 51%.  See MUJI 2d CV117.  “For evidence to be clear and convincing, it must at least have reached the point where there remains no substantial doubt as to the truth or correctness of the conclusion” but proof beyond a reasonable doubt is not required.  MUJI 2d CV118.

Although the heightened standard above is the lightning rod issue part in the bill, the remaining changes could likewise be as monumental.  The bill also proposes changes to the status of medical experts by granting experts a temporary license to practice in Utah for the purpose of testifying “against a physician” (no mention of hospitals or other healthcare providers here) at the price of being subject to “the authority and disciplinary actions of the [Physicians Licensing Board].”  The bill could arguably be read to only apply to experts retained by plaintiffs but not to experts retained by physicians in their defense.  This is more likely a defect of the language and not the intent of the legislature, but it should be clarified to be sure.  The bill appears to respond to a recent case in which the Utah Supreme Court overturned a trial court in which the trial court had excluded a medical expert who was not licensed to practice in Utah (then again, maybe not).  In that case, an out of state expert was alleged to have provided medical care to asbestos plaintiffs in a hotel room and later expert opinion based on that encounter.  In any event it is the last part of the bill that makes a difference because the bill goes on to amend the physician’s “Unprofessional Conduct” section to include the following within the definition of unprofessional conduct:

(3) providing expert medical testimony:
(a) on a contingency fee basis in any action for injury or death arising out of the
provisions of or failure to provide health care services; or
(b) that is false or completely without medical foundation, including:
(i) without a thorough review of the medical records of the claimant;
(ii) without a physical examination of the claimant where appropriate or convenient;
(iii) without foundation in accepted science-based medical research; or
(iv) not based on current standards of care for Utah.

An out of state expert who is retained to provide expert testimony in a medical malpractice case against a physician in Utah will be subjecting him or herself to the jurisdiction of Physicians Licensing Board.  If an expert is found to be involved in “unprofessional conduct,” the expert may be charged with a third degree felony and/or fined up to $10,000.  The bill rightly aims to decrease the retention of experts who say whatever the attorney hiring them pays them to say.  Does it do more?  It could have a chilling effect on the ability of both doctors and patients to find out of state physicians willing to testify in a Utah case if there is a possibility of being dragged into Utah to answer an unprofessional conduct charge.  It is arguable that under the bill’s language an out of state expert’s opinion could be “completely without medical foundation” if it is “not based on current standards of care for Utah.”  What are the “current standards of care for Utah”?  Are the standards higher or lower than other states?  What about rural versus urban healthcare?  Does rural or urban Utah differ from rural or urban in some other state?  Do we want an expert whose medical opinion is not based on experience with “current standards of care in Utah” testifying about what the standards should be?  It seems both doctors and patients would lose a great source of expert testimony if experts had to either have experience with the “current standards of care for Utah” or educate themselves about Utah’s standards before testifying.  I like the idea behind the bill, but it needs some tweaking to get it right.