Excluding SSA Disability Determination in Tort Litigation

Recently, the following was posted in "Linked In" by Robert Hanlon:

SSA’s Determination of Disability Is Not Worth Its Weight In Prejudice"

Robert's victory led me to thinking about other cases in which we have attempted to exclude from a liability/tort case any information of disability determination by the Social Security Administration.

But first, let's see how Robert's case was decided.

In a medical malpractice case arising out of allegedly negligent knee replacement surgery, the plaintiff offered into evidence the Social Security Administration’s (SSA) Determination of Disability. Orber v. Jain, 10-cv-1674 (DNJ Camden). Judge Renee Marie Bumb, United States District Court for the District of New Jersey, found the determination to be inadmissible under Rule 403 because it is “substantially more prejudicial than probative.”

The court cited a number of reasons for its decision, which should be of interest to similarly situated defendants. 

First, the court found the SSA’s conclusion as to causation to be unreliable both because the SSA’s interest is in determining the presence of a disability as opposed to its cause, and because the SSA’s process lacks “a meaningful adversarial” component, which is particularly troubling when, as here, the plaintiff had already filed suit and may have had litigation in mind when he went through the process.  We make these same arguments in our motions in limine (see below).

Second, the court noted that there is “no basis to assess the qualifications of the Administrative Law Judge to render an opinion as to causation and thereby assess the opinion’s worth.” Third, the court acknowledged the significant risk of prejudice presented by the fact that a jury may give undue weight to a government report.

And finally, the court found that the probative value of the determination was minimal because the evidence it contained was cumulative of other evidence presented at trial.

The guidance offered by this opinion will certainly be of use to any defendant in New Jersey that faces a similar attempt by a plaintiff to short-circuit proof of causation by relying on an SSA determination of disability.

The following is additional arguments that may be helpful in excluding the evidence of the SSA's determination of disability no matter what jurisdiction you are in. Let me know if you find it helpful.

Since they are out of court statements, the  SSA records, factual findings, determinations, and judgments are "hearsay." See La. Code Evid. art 801(C); Green v. Connor, 644 So.2d 618 (La. 1994). Therefore, such statements are inadmissible as evidence unless otherwise provided in the Louisiana Code of Evidence. See La. Code Evid. art. 802.

The Louisiana Supreme Court has already held, in Green v. Connor, 644 So.2d 618 (La. 1994), that SSA records, factual findings, and judgments are inadmissible hearsay. In Green a plaintiff who was injured in a motor vehicle accident brought an action against his UM carrier, State Farm. The plaintiff also filed a claim for social security benefits. After State Farm requested and received the records of the Social Security proceedings, the plaintiff filed a motion in limine to exclude the records from evidence. The defense argued that the records were admissible under the "business records" hearsay exception of La. Code Evid. art. 803(6) and the "records of a public agency" hearsay exception at La. Code Evid. art. 803(8)(a)(iii).

Continuing the Debate Over Discoverability of Social Network Sites

Facebook and other social networks are becoming a pretty scary places for litigation attorneys.

Facebook pages are nearly mandatory for young adults these days. They’re sort of like the 1990s version of cell phones – you’re not cool unless you have one. 

Lawyers need to instruct their clients that the content that they share (even if they use privacy filters) may very well be used against them. I have recently filed motions to compel discovery of social networking materials.

We have a standard discovery protocol requesting this information. If you would like a copy, please contact me at www.perkinsfirm.com or  via e-mail at perkins@perkinsfirm.com.

Nationally there hasn’t been much case law governing when Facebook content may become discoverable during litigation. Odds are this lack of precedent will be short lived. With the remarkable lack of discretion (or modesty) exercised by many Facebook users, wily lawyers are increasingly looking for ways to access private postings in order to use it against their adversaries.

Naturally, these efforts are being met with resistance.

Some argue that it's a "fishing expedition." When a person claims a personal injury with  post accident limitations, I think his pre and post accident activities is fair game. There are some "older" judges who are not willing to make a plaintiff give up this information, but as electronic discovery becomes more and more common, it seems this evidence is relevant and discoverable.

Pennsylvania is one of the states on the forefront of Facebook discovery disputes. Although no appellate court has decided when private Facebook content is discoverable, the State’s trial courts have developed a logical approach for dealing with the issue. The majority of courts have required the party seeking private content to make a threshold showing that their adversary’s public Facebook profile includes content relevant to the case. (See, McMillen v. Hummingbird Speedway, Inc. and Zimmerman v. Weise Markets, Inc.). If they can make this showing, the door is then opened for access to private information.

 

A New York appellate court followed similar logic in a personal injury case last fall. In Patterson v. Turner, a trial court in New York ordered a plaintiff to make his private Facebook content available to a defendant, even though there was no showing as to how this material was relevant. The First Division Appellate Court rejected this approach. It agreed that “postings on plaintiff’s online Facebook account, if relevant, are not shielded from discovery merely because plaintiff used the service’s privacy settings to restrict access.” However, it remanded the case back to the trial court with an instruction to make “a more specific identification of plaintiff’s Facebook content that is relevant.”

Just recently a federal court adopted the relevancy threshold to resolve a Facebook discovery dispute. In Davids v. Novartis Pharm Corp. (E.D. NY 2012), a New York magistrate judge refused to grant access to a plaintiff’s private Facebook content because her public profile did not contain relevant evidence.

This relevancy threshold makes sense from an evidentiary perspective. Because only relevant evidence is admissible, a party seeking private content should arguably have to provide some basis for why it’s material. This is particularly true because Facebook pages frequently contain pictures and information that would be extremely embarrassing if it fell into the wrong hands. Requiring relevant public content provides at least some protection.

Do you have any idea how many potential resources there are for discovery of social media? See the following illustration:

Life and litigation would be boring if it were easy. A very recent ruling has made things a lot more complicated.

Keep talking and driving in Louisiana

From Lou Burnett of Fax-Net News:

Although it’s dangerous, Louisianians who are addicted to talking on their cell phones while driving can keep on keeping on.  The bill that would have made using a hand-held device while driving a primary offense has died in the state Senate.

It passed the House of Representatives with flying colors, but two senators of the Senate Transportation Committee voted against the measure.  Only one other member of the committee was present, who voted for the bill.

State Sen. Robert Adley, R-Bossier City, is chairman of the Senate Transportation Committee and Sen. Sherri Smith Buffington, R-Shreveport, is vice chairman, but it is not known if they were present or if they voted.

State Rep. Austin Badon, D-New Orleans, pleaded for passage of his bill.  “We see it every single day, drivers swerving in their lanes, stopping at green lights, running red lights, driving below the speed limit,” he told the Senate committee.     And he asked that Louisiana be the 11th state to make using a hand-held cell phone a primary offense.

His words fell on deaf ears.  “The will of the committee has been not to push this forward, and it’s unfortunate because it’s probably going to take a catastrophic accident or fatality by somebody close to a legislative member,” Badon said.

Louisiana already has a ban on texting while driving.

National Registry of Certified Medical Examiners

On April 20, the Federal Motor Carrier Safety Administration (FMCSA) published a final rule establishing its National Registry of Certified Medical Examiners (NRCME).

According to an implementation schedule published on FMCSA's official NRCME website, on May 21, 2012 the agency will begin the process to allow accredited private companies to test and certify medical examiners for inclusion on the NRCME. BeginningMay 21, 2014, all medical certificates must be issued by a certified medical examinerand contain his/her Medical Examiner Registration Number. Medical certificates issuedbefore May 21, 2014 will still be valid until their expiration, even if that date is after May21, 2014. On that date, motor carriers will also be required to verify that a medicalcertificate is valid by checking a driver's medical certificate against the examiner'sregistration number in the NRCME.

Even after being examined by an examiner registered in FMCSA's database, a driver will still need to transmit a copy of the medical certificate to his or her state licensing agency. The American Trucking Associations (ATA) has long advocated that, both to reduce fraud and possible processing errors, medical examiners should transmit this data directly to the licensing agencies for inclusion in the Commercial Driver's License Information System (CDLIS). ATA has urged FMCSA to issue a proposed rule that would require medical examiners to send such information and States to be able to directly add it to a CDLIS record. Based upon the Department of Transportation's regulatory agenda, FMCSA is scheduled to publish a notice proposing such a rulechange in August 2012.

Perkins Awarded AV Rating!

Perkins & Associates,LLC Receives Peer Review Rating for Mark A. Perkins from LexisNexis® Martindale-Hubbell®

LexisNexis Martindale-Hubbell has recognized Mark A. Perkins with a Martindale-Hubbell Peer Review Rating™. Mark A. Perkins was given an “AV” rating from his peers, which means that he was deemed to have very high professional ethics and preeminentlegal ability. Only lawyers with the highest ethical standards and professional ability receive a Martindale-Hubbell Peer Review Rating.

LexisNexis Martindale-Hubbell conducts secure online Martindale-Hubbell Peer Review Ratings surveys of lawyers across multiple jurisdictions and geographic locations, in similar areas of practice as the lawyer being rated. Reviewers are instructed to assess their colleagues' general ethical standards and legal ability in a specific area of practice.

The Martindale-Hubbell Peer Review Ratings evaluates lawyers in the United States and Canada based on the anonymous opinions of members of the Bar and the Judiciary, including both those who are rated and those who are not. The first review to establish a lawyer's rating usually occurs three years after his first admission to the Bar.

The confidentiality, objectivity and complete independence of the ratings process are what have made the program a unique and credible evaluation tool for members of the legal profession. The legal community values the accuracy of lawyer peer review ratings because they are determined by their peers – the people who are best suited to assess the legal ability and professional ethics of their colleagues.

“Martindale-Hubbell Peer Review Ratings were created in 1887 as an objective tool that would attest to a lawyer ability and professional ethics, based on the confidential opinions of other lawyers and judges who have worked with the lawyers they are evaluating,” said Mike Walsh, President and CEO, U.S. Legal Markets at LexisNexis. “The Martindale-Hubbell Peer Review Ratings have remained the most prestigious and widely respected lawyer rating system in the world for over a hundred years.”

In this highly competitive environment for legal services, the Martindale-Hubbell Peer Review Rating is often one of the only means to differentiate lawyers who are otherwise very comparable in their credentials. This is important on a variety of levels –from the in-house counsel trying to determine which one of his outside law firms should be assigned a new matter to the private practice lawyer seeking to refer a case to another lawyer with the appropriate expertise in a specific area of practice.

Indeed, a Martindale-Hubbell Peer Review Rating can be one of the most important criteria that lawyers and clients use to evaluate a lawyer when retaining a lawyer, or simply researching the background of co-counsel or opposing counsel. When referring matters to colleagues with specific expertise or looking for counsel in another jurisdiction, lawyers want to have confidence in the individual lawyer under consideration. By reviewing the ratings, they can be guided to a lawyer with very high ethics as well as the appropriate level of professional experience.

"I have been practicing for over twenty five years and finally I have been recognized by my peers in the top tier," said Perkins. "I wouldn't have wanted it any sooner because I don't think one attains such an honor without years in the trenches."

Perkins began his legal career as a prosecuting attorney and while there, he tried the first case in Caddo Parish using what was then novel DNA-identification evidence. After leaving the District Attorneys Office, Mark's practice has focused primarily in the defense of commercial and insurance litigated matters, including products, premise, commercial auto/trucking and sports/recreation liability.

Perkins has been married to Joan Guillot since 1984 and they have twin daughters, Jessica and Erica, who are both graduates of Byrd High School. Both girls are married, but there are no grandchildren...yet.

For more information about the firm, you can visit their website at www.perkinsfirm.com.

Arbitration Mandated between Employer/Employee in Texas?

Suppose an employee and employer agree to arbitrate their disputes and the agreement is signed in Texas. Obviously, Texas law should apply.

A recent Court of Appeals in El Paso case involving arbitration agreement was decided on January 11, 2012. In Mendivil v. Zanios Foods, Inc, an employee signed  a BROAD  employment agreement that included an arbitration agreement for "any controversy, claim, or dispute against [Employer] arising out of or relating to my employment with [Employer]." The contract went on to say that arbitration was the sole and exclusive remedy for any such controversy and that the employee waived his right to pursue claims in court or administrative forums other than arbitration. The procedure for submitting such a claim was also outlined in the contract.

After the employee was injured in the course of his employment and terminated for an reason allegedly unrelated to the injury, he sued his employer. The employer filed a motion to compel arbitration, which the trial court granted without determining if the arbitration agreement was valid. On appeal, the court repealed and remanded based on the employer’s failure to prove a valid arbitration agreement.

This case is helpful as it lays out several rules of law on how to determine if a contract is a valid arbitration agreement.

Is a CITATION against your truck driver admissible in Louisiana?

Following the accident at issue, the defendant truck driver  was issued a traffic citation for failing to yield the right of way pursuant to La. R.S. 32:124. Subsequently, the driver  chose not to contest the citation and paid the fine for his citation.

First, Defendants present that a traffic citation is inadmissible hearsay to the extent that it is an out of court statement offered in an attempt to prove that the cited person performed a hazardous driving maneuver. See La. Code Evid. art. 801(C).

In a civil case it is inadmissible merely to show that a party was charged by the police with a traffic citation. Maricle v. Liberty Mutual Ins. Co., 2004-1149 (La.App. 3 Cir. 3/2/05), 898 So.2d 565 citing Ruthardt v. Tennant, 252 La. 1041, 215 So.2d 805 (1968). Although a guilty plea to a traffic offense is admissible into evidence as an admission, a plea of nolo contendere to such an offense is not admissible. La. Code Evid. art. 410.

The mere payment of a traffic citation is not sufficient proof of a guilty plea to be an admission. Maricle, supra, 898 So.2d at 573. Neither the traffic citation itself nor a receipt for payment of the citation are sufficient proof of a written guilty plea. Id.

Thus, unless Plaintiffs are able to produce a written guilty plea to the citation, any evidence regarding the  citation and subsequent payment of the fine must be excluded. Id.

Additionally, article 609 of the Louisiana Code of Evidence governs the admissibility of evidence of criminal convictions in civil matters. The article limits the admissibility of criminal convictions only to those crimes that are: (1) punishable by death or imprisonment in excess of six months or Involved dishonesty or false statement and (2) ten years has not elapsed since the date of conviction.

Furthermore, such evidence is limited to the name of the crime and the date of conviction. La. C.E. art. 609(A). Furthermore, evidence of the arrest, indictment, or prosecution of a witness is not admissible for the purpose of attacking his credibility. Id. at art. 609(F).

What do you think? What about in your state?

I would welcome the opportunity to read what you have to say.