KCLawyer
Tuesday, December 30, 2003
Missour Supreme Court Defines Standard For Expert Testimony
This Court reaffirmed its holding in Lasky v. Union Electric Co., 936 S.W.2d 797 (Mo. banc 1997), that the standard for the admission of expert testimony in civil cases is that set forth in section 490.065. As discussed in the decision, this is also the standard to be applied in administrative cases. To the extent that civil cases decided since Lasky apply Frye or some other standard, they are incorrect and should no longer be followed. Section 490.065.3 requires that the facts and data on which an expert relies must be those reasonably relied on by experts in the relevant field.
State Bd. of Registration for Healing Arts v. McDonagh, 2003 WL 22999293, Mo., Dec. 23, 2003.
Monday, December 22, 2003
Claim Adjuster Liability
In a recent case by the Supreme Court of Appeals of West Virginia, the Court found that insurance adjusters might be individually liable for their alleged mis-handling of an insurance claim. Taylor v. Nationwide Mutual Insurance Company and Scarlett Tarley, 2003 WL 22762025 (W.Va. Nov.21, 2003).
Welding Rods
A new stream of toxic tort cases is sure to arise from allegations that toxic fumes generated during the welding process can pose a serious threat to the welder and others in the immediate area. In recent litigation, it has been alleged that welding fumes when inhaled, can cause serious short-term and long-term health effects and often cause lung, heart, kidney, and central nervous system problems. It has also been alleged that rods made of cadmium produce fumes with potential cancer causing agents. Manufacturers and insurers have been relatively successful in defending such claims alleging that there is no causal link between exposure and injury. However, it is now being successfully alleged that exposure to manganese (which is found in stainless steels, carbon steels and in welding rods) during the welding process may be linked to Parkinsons disease.
Thursday, December 18, 2003
Spam Litigation
Microsoft is joining the state of New York to file suits against a man it alleges to be a major spammer, Scott Richter of OptInRealBig.com. Microsoft is peeved because Richter supposedly spoofed Hotmail and MSN mail addresses for his spam. NY is asking for $20 million, MS for $18.8 million.
Wednesday, December 17, 2003
Cost of Missouri Comp Insurance Should Drop
State regulators and the insurance industry's principal trade group have called for a reduction in Missouri workers' compensation insurance rates, providing financial relief for the state's business community, Gov. Bob Holden announced. The announcement follows an 18 percent reduction in workplace injuries over a two-year period. The National Council on Compensation Insurers (NCCI) — the private trade group — is advising companies that costs underlying workers' compensation rates should drop an average of 1.4 percent in 2004.
Missouri Premises Liability
Landlord is not liable to a tenant’s business invitees for injuries caused by defects on the premises unless the landlord exercises control over the premises. McKinney v. H.M.K.G. & C., Inc., No. 62222, (Mo. App. W.D., November 4, 2003).
Monday, December 15, 2003
Managed Care and Work Comp
A Missouri court has ruled against the Missouri Department of Insurance, enjoining the department from enforcing rules requiring workers' compensation insurers to pay for managed care organizations' services, even if the insurers had no contract with the MCO. In Alliance of American Insurers v. Missouri Department of Insurance, No. 02-CV-325517 (Cole County, Missouri Circuit Court), the Alliance argued that an employer's right to select a health care provider under Mo. Rev. Stat. § 287.140(10) does not equate to an employer's right to choose its MCO. Further, even if an employer has the right to choose its MCO, an insurer should not be required to reimburse the MCO for managed care fees for claims involving injured employees unless there is a contract between the MCO and the workers' compensation carrier. The Alliance also contended that the rules were an attempt to benefit some domestic MCOs.
Thursday, December 11, 2003
Spam Law
The House has passed the CAN-SPAM Act. President Bush is expected to sign it into law before the end of the year.
Missouri Med Mal Insurance Mayhem?
Severity of patient injuries reached an all-time high for medical malpractice payments in 2002, but victim awards have not kept pace with inflation and increasing disabilities, the Missouri Department of Insurance has reported.
In its 2002 annual medical malpractice report, MDI noted: For the first time, the typical medical malpractice claim payment involved at least permanently disabling injuries, based on insurers' own evaluations of paid claims. Successful claims against physicians involved even more damaging injuries, again reaching unprecedented severity levels.
Paid claims involved 205 patient deaths, a 49 percent increase from 2001 and 68 percent from 2000. Such deaths accounted for more than one-third of claims. Permanent injury or death was involved in two-thirds of claim payments.
Average payments in deaths rose from $194,067 to $254,944. Patients lived, but suffered permanent injuries in another 170 cases, which had average awards rise from $242,100 to $291,079. Nevertheless, the report showed average claim payments continued to increase at a slower rate than the combined effects of medical inflation (84 percent), wage inflation (55 percent) and injury severity (a full-step increase in physical disability), which are the principal factors in awards.
Before 2002, Missouri's data indicated no significant problems with the malpractice market that were not common to most lines of property and casualty insurance. But between August 2001 and May 2002, Missouri's malpractice insurance market lost 57 percent of its capacity to write new business because of two major insolvencies, the withdrawal of two other major carriers nationally and a moratorium on new business by the state's largest writer.
Monday, December 08, 2003
Windows 98
Microsoft is retiring Windows 98 on December 15, claiming it necessary for compliance with a 2001 court order in the dispute with Sun over Java. Other Java enabled products that will be pulled from the shelves include SQL Server 7, Office XP Developer, and a number of Office 2000-related tools and patches.
Wednesday, December 03, 2003
Nevada Insurance Fraud
Attorney General Brian Sandoval announced that District Judge Donald M. Mosley sentenced Purificacion Lobitos, age 56, to a maximum term of 32 months with a minimum term of 12 months in the Nevada Department of Corrections, for one count of felony conspiracy to commit insurance fraud. The term of incarceration was suspended and Lobitos placed on probation for three years. Lobitos was also ordered to reimburse the Insurance Fraud Unit (IFU) $1000.00 in investigative costs and $546.73 in extradition costs to the State of Nevada Extradition Unit. In Jan. 1998 and continuing through approximately July 27, 1998, in Clark County, Nevada, Purificacion Lobitos conspired with a co-defendant to submit false claims for life insurance benefits under Lobitos' term life insurance policies with Liberty Mutual and Prudential Insurance Companies, by maintaining that Lobitos had been killed in a vehicle -pedestrian accident in the Philippines. The policies were each worth $100,000.00.
