The House of Representatives is trying to limit the right of tort victims again.
This time, the effort is to give even greater power to holders of ERISA subrogation interests.
The House has passed a pension bill (H.R. 2830) that included this language:
This is not a new opinion, but I came across it recently and thought it was worthy of mentioning here. It sets forth the elements that must be proved in a medical monitoring case under West Virginia law. The plaintiff must prove that:
“(1) he or she has been significantly exposed; (2) to a proven hazardous substance; (3) through the tortious conduct of the defendant; (4) as a proximate result of the exposure, plaintiff has suffered an increased risk of contracting a serious latent disease relative to the general population; (5) the increased risk of disease makes it reasonably necessary for the plaintiff to undergo periodic diagnostic medical examinations different from what would be prescribed in the absence of the exposure; and (6) monitoring procedures exist that make the early detection of a disease possible.”
Remember that the Sixth Circuit Court of Appeals recently held that Tennessee would recognize a cause of action of medical monitoring. Read my post about the case here.
A new opinion by the Western Section Court of Appeals in a personal injury case has me scratching my head.
The male plaintiff King was hurt in a car wreck. He claimed damages for loss of earning capacity. He was self-employed in the limestone business and his earnings history in the business was a real issue. The jury awarded $1,050,000 in damages on this element. The trial judge approved the award. The Court of Appeals reversed, saying that the amount was speculative.
Specifically, the Court said “King had no contracts for the sale of limestone. Additionally, King’s main customer bought from other sellers of limestone. Given the track record of King’s business and the uncertainty of sales of limestone, any showing of lost business profits would be speculative and not admissible to show lost earning capacity.” (Footnote omitted.)
The United State Supreme Court has agreed to hear a case concerning an ERISA plan’s legal right to sue a plan participant for reimbursement. As John Wood explains, “This important issue typically arises when an ERISA health plan pays medical bills for an injured participant. If the participant recovers from a third-party tortfeasor, the plan then seeks to recover its reimbursement interest from the participant.”
Read more about the issue and the case here at John’s erisaontheweb blog.
When you can’t prove a current injury but can prove that, because of the fault of another, you need to be regularly followed by a health care provider you seek damages for “medical monitoring.” The claim arises is toxic tort and products liability cases.
In a case of first impression, the Sixth Circuit Court of Appeals has ruled that Tennessee law would recognize a cause of action for medical monitoring. The court said “there is something to be said for disease prevention, as opposed to disease treatment. Waiting for a plaintiff to suffer physical injury before allowing any redress whatsoever is both overly harsh and economically inefficient.” (Emphasis supplied). The case, Sutton v. St. Jude Medical S.C., Inc., was brought as a class action on behalf of a proposed class of persons who underwent cardiac by[ass surgery using a medical device called the Symmetry Bypass System Connector.
Read more here.
Another state has ruled tht a plaintiff “may present to the jury the amount that her health care providers initially billed for services rendered” rather than the amount paid by the plaintiff’s insurer.
The case is Arthur v. Catour; read the opinion of the Illinois Supreme Court here. The decision cites to the law of other jurisdictions on the issue.
Day on Torts