June, 2017


Supreme Court Rejects OOIDA Appeal to Hear ELD Case

In Owner-Operator Ind. Drivers v. Dept. of Transportation, ___ S.Ct. ___ 2017 WL 135644 (June 12, 2017), the United States Supreme Court decided it will not review the Owner-Operator Independent Drivers Association’s (OOIDA) appeal on electronic logging devices (ELDs). The appeal was filed with the Supreme Court in April, following the U.S. Court of Appeals for the Seventh Circuit ruling against OOIDA in October 2016. There commercial truck drivers and trade organizations petitioned for review of the final rule of the Federal Motor Carrier Safety Administration (FMCSA) that required electronic logging devices in commercial trucks that automatically recorded data relevant to drivers' hours of service and duty status.

In its petition to the Supreme Court, OOIDA asked the court to determine whether the ELD rule violates the Fourth Amendment by failing to establish a regulatory structure at the state and federal levels that serves as a constitutionally adequate substitute for a warrant. The group wanted the Supreme Court to evaluate whether the Seventh Circuit Court of Appeals “erred by extending the pervasively regulated industry exception…beyond the administrative search of business premises to include the search of drivers in support of the ordinary needs of law enforcement.” The Seventh Circuit court ruled the ELD rule “is not arbitrary or capricious, nor does it violate the Fourth Amendment.”

The Supreme Court’s decision leaves in place the lower court ruling upholding the mandate and its December 18 compliance deadline.


Plaintiff May Recover Medical Expenses Beyond PIP Limits

In Haines v. Taft and Little v. Nishimura, Docket No. A-5503-14T4 / A-0727-15T2 (App. Div. N.J. June 1, 2017), two automobile negligence actions are addressed in a single opinion because they share a common legal question. In their respective actions, plaintiff Joshua L. Haines and plaintiff Tuwona Little sought to recover medical expenses that exceeded the $15,000 personal injury protection (PIP) limits provided in each plaintiff's automobile insurance policy. The judges reviewing these matters each entered an order barring the admission of these expenses. Haines and Little appealed those orders.

The question presented was whether N.J.S.A. 39:6A-12 precludes the recovery of medical expenses above those collectible or paid under an insured's PIP provision in a standard automobile insurance policy, including medical expenses exceeding any elected PIP option allowed in a standard policy pursuant to N.J.S.A. 39:6A-4.3(e).

The Insurance Council of New Jersey, the Property Casualty Insurers Association of America, and the New Jersey Defense Association were granted amicus curiae status and filed briefs advocating the position presented by defendants. Defendants sought to have the Appellate Court interpret the relevant language to hold that all medical expenses up to $250,000, the usual PIP limit in a standard policy, be deemed inadmissible. Plaintiffs maintained that the defendants were responsible for uncompensated medical bills above their policy limit, which could be up to $250,000.

The Appellate Division overturned the rulings by the trial courts. The Court noted that by statute, automobile insurers must provide five different PIP coverage options of $250,000, $150,000, $75,000, $50,000, or $15,000. Thus, the Appellate Court held that the phrase “amounts collectible or paid under a standard policy” did not refer solely to policy limits of $250,000. The language instead refers to those PIP limits covering the particular insured, making only those medical expenses up to and including the chosen PIP limits inadmissible. As both Plaintiffs selected PIP coverage of $15,000, evidence of medical expenses between $15,000 and $250,000 are admissible and recoverable against the tortfeasors, subject to any other relevant statutory provisions. The Appellate Division also noted that the definition of “economic loss” under N.J.S.A. 39-6A-2(k) expressly includes uncompensated medical expenses.


Sharing Privileged Materials with Public Relations Firm is Considered a Waiver of Privilege

In Bousamra v. Excela Health, No. 1637 WDA 2015, 2017 PA Super. 66, 2017 WL 959488 (March 13, 2017), the Pennsylvania Superior Court ruled that a hospital waived its attorney-client privilege and work product protection when it forwarded a legal opinion from its outside counsel to its public relations firm, both hired in connection with a peer-review matter.

Drs. George Bousamra and Ehab Morcos were cardiologists with privileges at one of Excela Health’s hospitals. Excela came to suspect that they was performing medically unnecessary procedures. Excela investigated and then publicly announced its findings, specifically that Bousamra and Morcos had performed roughly 140 unnecessary stent procedures in 2010, leading the doctors to sue for defamation and breach of contract. The doctors claimed that the accusations were pretextual and made in retribution and for anti-competitive purposes after Excela attempted unsuccessfully to acquire Bousamra’s practice.

Before making the public announcement, the hospital hired lawyer Hope Foster to advise it on the propriety of publicly naming the pair, and also hired a team from a public relations firm, Jarrard Phillips Cate & Hancock, to consult on the announcement.

Foster issued an opinion letter to Excela regarding the propriety of identifying the doctors in Excela’s public announcement of its findings. Foster forwarded to Jarrad a copy of Foster’s legal opinion letter.

During discovery, one of the doctors learned about the opinion letter when it was listed on Excela’s privilege log. Realizing the letter had been forwarded by Excela to the public relations firm, he moved to compel the production of the letter. The Superior Court found the letter was subject to the attorney-client privilege, but that the privilege had been waived. Excela appealed.

Excela argued that the PR firm was part of the legal team offering advice to the hospital, but the court said there was no evidence that the consultants had any say in actual legal issues. The hospital also argued that the letter in question was subject to work-product privilege. The court found that the privilege could apply, as the letter was prepared in advance of anticipated litigation, but that it was ultimately waived by the disclosure to a third party.

Copies of the full text of any of the cases discussed in this Newsletter may be obtained by calling our office.  The articles contained in this Newsletter are for informational purposes only and do not constitute legal advice.

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