Discovery of Medical Bills After the Discovery Deadline

  Rule 26(f)(2) of the Mississippi Rules of Civil Procedure specifically addresses the supplementation of expert opinions.  What happens when a Plaintiff gets treatment after the discovery deadline though?

 Obviously, billing and records associated with a plaintiff's ongoing medical treatment fit into this category of required supplementation. Treatment for medical conditions often does not fit neatly into prescribed legal deadlines and supplementation of this material on a "rolling" basis as the treatment is rendered is considered timely. The situation changes, however, when billings were not timely submitted at or near the time of treatment, but rather collected and submitted long after discovery is closed.

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Tenants by the Entireties and Planning

 Tenants by the Entireties is a special deed form for married couples only.   It creates a separate entity that owns the real property and it is protected from actions by individual creditors of the husband or the wife.  Joint creditors of the husband and wife can still come after the property, but hey, just don’t co-sign anything with your spouse.  

With a tenants by the entireties deed the property is protected in bankruptcy for an unlimited amount of equity.   You are no longer limited to just the $75k homestead exemption protection. This is the deed form the legislature created for the protection of the marital home.  There is a two year look back period in bankruptcy so you need to plan ahead and do it now.  

 

Tax Sale and Actual Occupation of the Property

Mississippi Code 15-1-15 may be useful if a client has a tax sale property.   The statute provides, "Actual occupation for three years, after two years from the day of sale of land held under a conveyance by a tax collector in pursuance of a sale for taxes, shall bar any suit to recover such land or assail such title because of any defect in the sale of the land for taxes, or in any precedent step to the sale, saving to minors and persons of unsound mind the right to bring suit within such time, after the removal of their disabilities, and upon the same terms as is provided for the redemption of land by such persons."

Vehicle Repossession and Bankruptcy

 In Mississippi, there is a 10-day absolute right of redemption for a repossessed vehicle. If a bankruptcy is filed after the repossession, if the vehicle has not been sold and the title transferred to another party, once the bankruptcy is filed the lender must return the vehicle under the bankruptcy code.  The lender would also have to follow the statutory provisions for the disposition of the vehicle (i.e.-notice and right to redeem and notice of the date of the sale at auction or otherwise).   If the lender refuses to return the vehicle,  an adversary proceeding can be filed in Bankruptcy Court and you can recover damages, including attorney's fees and costs.   

COVID-19 and Employers

 The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations discussed below.  These principles apply if an employee gets the vaccine in the community or from the employer.   

In some circumstances, Title VII and the ADA require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business.  The analysis for undue hardship depends on whether the accommodation is for a disability (including pregnancy-related conditions that constitute a disability) (see K.6) or for religion (see K.12). 

As with any employment policy, employers that have a vaccine requirement may need to respond to allegations that the requirement has a disparate impact on—or disproportionately excludes—employees based on their race, color, religion, sex, or national origin under Title VII (or age under the Age Discrimination in Employment Act (40+)).  Employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.

It would also be unlawful to apply a vaccination requirement to employees in a way that treats employees differently based on disability, race, color, religion, sex (including pregnancy, sexual orientation and gender identity), national origin, age, or genetic information, unless there is a legitimate non-discriminatory reason.

Talc Verdict Affirmed

 The Supreme Court is leaving in place a $2 billion verdict in favor of women who claim they developed ovarian cancer from using Johnson & Johnson talc products, the Associated Press reported. The justices did not comment Tuesday in rejecting Johnson & Johnson’s appeal. The company argued that it was not treated fairly in facing one trial involving 22 cancer sufferers who came from 12 states and different backgrounds. A Missouri jury initially awarded the women $4.7 billion, but a state appeals court dropped two women from the suit and reduced the award to $2 billion. The jury found that the company’s talc products contain asbestos and asbestos-laced talc can cause ovarian cancer. The company disputes both points. Johnson & Johnson, which is based in New Brunswick, N.J., has stopped selling its iconic talc-based Johnson’s Baby Powder in the U.S. and Canada, though it remains on the market elsewhere. But the company faces thousands of lawsuits from women who claim asbestos in the powder caused their cancer. Talc is a mineral similar in structure to asbestos, which is known to cause cancer, and they are sometimes obtained from the same mines. The cosmetics industry in 1976 agreed to make sure its talc products do not contain detectable amounts of asbestos.

 

False Lien Statute

 Mississippi Code 85-7-429 provides a remedy for the filing of a false lien on real property.  The statute provides that:

"(1) Any person who shall falsely and knowingly file the claim of lien provided in this article without just cause shall be liable to every party injured thereby for a penalty equal to three (3) times the full amount for which the claim was filed, to be recovered in an action by any party so injured at any time within one hundred eighty (180) days from the filing of the claim of lien.

(2) Any person whose rights may be adversely affected by wrongful filing of a claim of lien, as provided by this article may, in addition to the remedies set forth in subsection (1) of this section, apply, upon seven (7) days' notice, to the circuit, county or chancery court, to expunge or vacate the claim of lien, in accordance with Rule 81(d) (2) of the Mississippi Rules of Civil Procedure."

Double Jeopardy and Mistrial

 Yesterday, the Mississippi Supreme Court ruled that double jeopardy prohibited retrial of a criminal defendant if a mistrial was improperly granted.  A link to the opinion is here.  

Authenticate Google Maps

 The below is a quote making Google maps admissible.  

“[w]e take judicial notice of a Google map and satellite image as a ‘source[ ] whose accuracy cannot reasonably be questioned’ ” for purposes of this case. United States v. Perea–Rey, 680 F.3d 1179, 1182 n. 1 (9th Cir.2012) (second alteration in original) (quoting Fed.R.Evid. 201(b)); see Citizens for Peace in Space v. City of Colo. Springs, 477 F.3d 1212, 1218 n. 2 (10th Cir.2007) (taking judicial notice of an online distance calculation that relied on Google Maps data); United States v. Piggie, 622 F.2d 486, 488 (10th Cir.1980) (“Geography has long been peculiarly susceptible to judicial notice for the obvious reason that geographic locations are facts which are not generally controversial....”); see also David J. Dansky, The Google Knows Many Things: Judicial Notice in the Internet Era, 39 Colo. Law. 19, 24 (2010) (“Most courts are willing to take judicial notice of geographical facts and distances from private commercial websites such as MapQuest, Google Maps, and Google Earth.”). We do this here only to determine the “general location” of relevant events. Perea–Rey, 680 F.3d at 1182 n. 1. The map in the appendix identifies the approximate location of the southern checkpoint—150 yards south of the mayor's driveway—based on Google Maps's “Distance Measurement Tool.” Cf. Citizens for Peace in Space, 477 F.3d at 1218 n. 2.

Death of Tennessee Tortfeasor

 The Tennessee Court of Appeals released its decision today in Mott. v. Luethke, No. E2020-00317-COA-R3-CV (Tenn. Ct. App. Mar. 16, 2021).  The syllabus from the slip opinion reads:

Following an automobile accident that occurred on March 22, 2016, the plaintiff filed a cause of action, in the form of a civil summons, in the Washington County General Sessions Court . . . on March 3, 2017, seeking an award of damages from the defendant, who was the other driver involved in the car accident. Unbeknownst to the plaintiff, however, the defendant had passed away in December 2016. On January 31, 2018, the plaintiff filed a “re-issue[d]” summons to be served upon the administrator ad litem of the decedent’s estate. After the matter was subsequently transferred to Washington County Circuit Court . . . , the trial court granted the administrator’s motion for summary judgment, determining that the plaintiff had failed to timely file his tort action against the personal representative within the applicable statute of limitations. The trial court consequently dismissed the plaintiff’s claims with prejudice. The plaintiff has appealed. Discerning no reversible error, we affirm.

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/vernon_mot_v._k_jeffrey_luethke_esq._et_al..pdf  

This opinion is a must-read one for any lawyer who must deal with the issue of revivor of a claim against a tortfeasor who dies before suit is filed under Tennessee substantive law.  

Service of Discovery Response Via Email

 

Federal Rule of Civil Procedure 5(b)(2)(D) states, in relevant part, that a party may serve pleadings or discovery on an adverse party by, “delivering a copy by any other means, including electronic means, consented to in writing by the person served. Service by electronic means is complete on transmission; . . .” Alliance Communs. Coop., Inc. v. Global Crossing Telcomms., Inc., 2009 U.S. Dist. LEXIS 16467, 27-28 (D.S.D. Feb. 27, 2009).

 In Alliance Communs. Coop., Inc. v. Global Crossing Telcomms., Inc., the Plaintiff served the Defendant discovery requests by email.  The Defendants challenged the service by email claiming they never consented in writing to electronic service. Alliance Communs. Coop., Inc., 27.

 The Court rejected the Defendant’s arguments they never consented to electronic service of process.  The Court highlighted the fact that when the defense attorneys signed the Defendants’ Opposition to Plaintiffs’ Motion to Compel they also completed an attorney registration form for electronic court filing.  The attorney registration form included a provision for “consent to service by electronic means as substitute for service…” Alliance Communs. Coop., Inc., 28.

 The Court found the Defendant had consented in writing to receive service of process by email because of the attorney registration form the attorneys completed.  Further, there was no evidence of any prejudice by receiving the discovery requests by email.  Alliance Communs. Coop., Inc., 29.

Statute of Interest

 Miss. Code Ann. § 63-3-405 (Rev. 2013). If there is an accident with damage to any vehicle or person, the “driver shall render to any person injured in such accident reasonable assistance, including the carrying, or the making of arrangements for the carrying, of such person to a physician, surgeon or hospital for medical or surgical treatment if it is apparent that such treatment is necessary or if such carrying is requested by the injured person.” Id. (emphasis added). The statute also includes a “samaritan” provision providing immunity to the driver so long as they “in good faith and in the exercise of reasonable care” provide care or transportation. Id.