Verdict of Interest

Recently, ESPN commentator Erin Andrews received a 55 million dollar verdict in Nashville against her stalker and the hotel chain which contributed to a nude video of her being made.  The stalker was found 51 percent at fault and the hotel was 49 percent at fault.  My understanding is that the hotel had inadequate procedures in place to prevent this kind of thing from happened.  A link to an article about it is locate here. 

Removal Information to Federal Court

The statutory procedures for removal are to be strictly construed.  A defendant removing a civil action must file in the U.S. district court for the district and division in which the state proceeding is pending a “notice of removal” that contains “a short and plain statement of the grounds for removal” and that attaches the process, pleadings, and orders served upon the defendant in the action.  The notice of removal must generally be filed within thirty days. The Supreme Court has clarified what triggers the thirty days to run:

First, if the summons and complaint are served together, the 30-day period for removal runs at once. Second, if the defendant is served with the summons but is furnished with the complaint sometime after, the removal period runs from the receipt of the complaint. Third, if the defendant is served with the summons and the complaint is filed in court, but under local rules, service of the complaint is not required, the removal period runs from the date the complaint is made available through filing. Finally, if the complaint is filed in court prior to any service, the removal period runs from the service of the summons.

The thirty days does not being running upon receipt of a faxed courtesy copy of a complaint, unaccompanied by formal service.  In a case not originally removable, the defendant may remove to federal court within thirty days of receiving information in an “amended pleading, motion, order or other paper” which allows the defendant to “ascertain ... that the case is one which is or has become removable ....”. The Federal Courts Jurisdiction and Venue Clarification Act has resolved a circuit court split over the so-called “last-served defendant rule.” Under the new provision, each defendant has thirty days to remove, but if the defendants are served at different times, an earlier-served defendant which did not timely remove, may consent to a removal filed by a later-served defendant. 

Explanation of Benefits

One of the best ways to find additional medical bills for personal injury cases is to look at the health insurance explanation of benefits.  Many times, the hospital has third party groups read x-rays, do certain tests, etc.  These added charges add value to claims due to the number of medical providers and the amount of costs. 

Invited Error

In watching the oral arguments last week concerning the medical malpractice caps in Mississippi, a discussion was made of the invited error doctrine.  This has not been litigated in Mississippi that I am aware of other than potentially in that case.  Invited error refers to a trial court's error against which a party cannot complain to an appellate court because the party encouraged or prompted the error by its own conduct during the trial.  I believe this could turn into an interesting area of appellate law in the future. 

Book of Interest

I recently bought The Deposition Handbook from Trial Guides located here.  From my reading so far, this is the best and most practical books I have found on depositions.  I am a book junkie and unfortunately too many law books I get are too abstract and idealistic in my opinion.  However, this one has good advice and also has voluminous case cites for issues I have been recently litigating. 

Medical Malpractice Caps

The Mississippi Court of Appeals heard oral arguments yesterday in Emergency Medicine Associates of Jackson, PLLC v. Anita Glover.  The case involves the constitutionality of the medical malpractice caps.  The oral arguments and the briefs are on the Court of Appeals website.  The facts of the case are very egregious as to the level of malpractice.                                                                       

Modification

The Mississippi Court of Appeals decided Moreland v. Spears yesterday located here.  This case has a good outline of what is needed to modify custody, visitation, and other terms of a property settlement agreement.  In this case, the trial court had modified all three.  On appeal, the Court of Appeals found that the proof was so weak that they reversed and rendered the case.  What I got from this case reading between the lines was that the proof may have been there but nothing made into the actual record to support the findings made.