ATRI’s White Paper: Understanding the Impact of Nuclear Verdicts on the Trucking Industry

In June 2020, the American Transportation Research Institute (“ATRI”) released an 80-page report summarizing its comprehensive research into large “nuclear verdicts” over the past 15 years. The study, “Understanding the Impact of Nuclear Verdicts on the Trucking Industry,” analyzes litigation data from over 600 cases between 2006 and 2019.   The data was collected from multiple sources in the industry, including a litigation database firm. In sum, the data reveals that jury verdicts against trucking companies are increasing at an alarming rate.

According to the study, in the first five years of the data (i.e., 2006-2009), there were only 26 cases with jury verdicts over $1M. From 2012 to 2019, there were nearly 300 cases with jury verdicts over $1M – a 335% increase. The number of verdicts greater than $1M but less than $2M increased by 300% in the same period. Further, the number of verdicts over $10M doubled in the last five years of the data.

ATRI’s research revealed that the average verdict between 2006 and 2019 was $3.16M, with a large standard deviation of $7.19M.  However, the average size of verdicts from 2010 to 2018 increased from $2,305,736 to $22,288,000 – a 967% increase.

While it is often argued that nuclear verdicts reflect real-world cost increases, the data shows that the verdict’s size has far exceeded standard inflation and healthcare cost increases. From 2010 to 2018, mean verdict awards increased 51.7% per year, in contrast to inflation and healthcare costs, which on average grew 1.7% and 2.9% per year, respectively.

In addition to data analysis, ATRI interviewed defense attorneys, plaintiff attorneys, insurance agency brokers, insurance executives, and underwriters. The interview subjects identified six categories which they deemed to influence large verdicts: 1) prevention; 2) crash-related details; 3) post-crash/pre-litigation stage; 4) litigation strategies; 5) unfavorable practices; and 6) additional factors.  The data analysis confirmed that the type of injury, number and type of parties involved, and even vehicle types had a statistically significant impact on verdicts.

Ultimately, ATRI concluded that a “comprehensive and multifaceted program” is required to reign in the nuclear verdict trend. Such a program must address state and federal litigation landscapes, modified approaches to trial preparation, new safety compliance standards, broader fraud investigations, and expanded strategy and information-sharing among the defense bar.

COVID-19 Presumption Legislation Updates

COVID-19 Presumption Legislation Updates – Maryland

COVID-19 Presumption Legislation Updates – Virginia

COVID-19 Presumption Legislation Updates – D.C.

COVID-19 Presumption Legislation Updates – Delaware 

COVID-19 Presumption Legislation – District of Columbia

The DC Council has enrolled changes to various statutes relative to COVID-19 and workers’ compensation, and unemployment benefits will be discussed in further detail below.  These proposed changes were signed by Mayor Muriel Bowser on February 26, 2021. They will expire in 90 days, but more temporary legislation is likely pending. Information about the state of the proposed changes can be found here: https://lims.dccouncil.us/Legislation/B24-0058.

The major proposed changes so far relative to workers’ compensation benefits note an “injury” under public and private sector workers’ compensation law would now include the contracting of COVID-19 in the course of and within the scope of employment.  However, at this time, there is no specifically-tailored COVID-19 “presumption” legislation for workers’ compensation claims, such as those proposed or adopted in other jurisdictions.  D.C. proposals/laws relative to COVID-19 and workers’ compensation benefits appears to primarily ensure workers can file for workers’ compensation benefits if they suspect they contracted COVID-19 (defined in the statute as “the disease caused by the novel Coronavirus SARS-CoV-2 or any of its recognized mutant variations”) in the course of and within the scope of employment.  In layman’s terms: an employee could file a claim for workers’ compensation benefits after contracting COVID-19 and missing time from work, or if that person has to take unpaid time off from work because of exposure to COVID-19.  For those familiar with D.C. workers’ compensation law, this should come as no surprise; the burdens of proof and persuasion are heavily in the claimants’ favor when filing a claim.  The D.C. Department of Employment Services (DOES), which encompasses the workers’ compensation system as well as unemployment and other employment-related offices, has produced a chart of “COVID-19 Scenarios and Benefits Available” as well, found here: https://does.dc.gov/sites/default/files/dc/sites/does/publication/attachments/DOES-covid-19-scenarios-and-benefits_v13_0.pdf.   The chart states that if the employee is exposed to the virus during regular work duties and lost wages as a result of either becoming ill or having to quarantine due to exposure, he or she may be entitled to workers’ compensation benefits.  Of course, the chart is not the “law,” but it can give some insight into the current state of benefits available in different scenarios.

There are a few other portions of related laws that may eventually make their way into the workers’ compensation scheme in D.C., either through changes to the statutes or through caselaw.  For example, the Displaced Workers Right to Reinstatement and Retention Amendment Act of 2020 (passed January 13, 2021) provides that employers and contractors in retail, hospitality, or other covered industries must offer certain employees “displaced” by COVID-19 reinstatement to their previous positions or to a substantially similar position as positions become available.  This kind of scenario may spill over into the workers’ compensation field, but that is only this attorney’s conjecture at present.

Additionally, the proposed changes expand an employer’s obligation to report the injury, illness, or death to include if an employer knows of an employee who has contracted COVID-19 in the course of and within the scope of employment or whose contact with others in the course of and within the scope of employment makes the contracting of COVID-19 probable.   This reporting obligation, if it becomes law, will most likely result in many employers filing more Employer’s First Reports (DCWC Form No. 8).  Form 8 filings do not constitute filing a claim, nor is it evidence of the truth of the claimant’s allegations, but it does start the timetable for the statute of limitation on indemnity benefits of filing if an employer learns of an employee’s potential exposure.

The attorneys at Franklin and Prokopik have been preparing for additional discovery in this regard and strategizing ways to limit a claimant’s allegation of contracting COVID-19 in the workplace (as opposed to elsewhere) because of the lack of presumption legislation to date.  Due to the current uncertainty in D.C. workers’ compensation law relative to COVID-19, it is strongly recommended one discusses the matter with counsel when dealing with a potential COVID-19 claim.

UPDATE: Enacted – signed by Mayor. Effective for 90 days; more temporary legislation is supposedly pending.

COVID-19 Presumption Legislation Updates – Maryland

COVID-19 Presumption Legislation Updates – Virginia

COVID-19 Presumption Legislation Updates – Delaware 

COVID-19 Presumption Legislation – Virginia

COVID-19 was declared a public health emergency on January 31, 2020, by the Virginia Department of Health and Human Services. The Coronavirus Aid Relief and Economic Security Act, 116 P.L. 136 (March 27, 2020) (“CARES Act”). COVID-19 remains a pandemic in the United States.

COVID-19 is a disease to which the general public is exposed outside of employment.  Presently, no case law in Virginia specifically addresses pandemic viruses as occupational diseases and workers’ compensation benefits.

Depending on the circumstances, a disease, such as COVID-19, may be compensable as an occupational disease.

To prove an occupational disease, an employee must establish that he suffers an illness arising out of and in the course of employment “but not an ordinary disease of life to which the general public is exposed outside of employment.” Va. Code § 65.2-400(A). To meet this burden, the employee must prove (1) a direct causal connection between the work conditions and the occupational disease; (2) that the disease can be seen to have followed as a natural incident of the work as a result of the exposure due to the nature of the employment; (3) that the employment proximately caused the disease; (4) that it was not a disease to which he would have had substantial exposure outside of employment; (5) it was incidental to the character of the business, and not independent of the employee/employer relationship; and (6) the disease originated in the risk of employment and flowed as a direct consequence of it. Virginia Code § 65.2-400(B).

A disease that is not compensable under Virginia Code § 65.2-400, because of the possibility of substantial exposure outside of employment, may still be compensable under Virginia Code § 65.2-401. For an ordinary disease of life to be compensable as an occupational disease, the employee must establish by clear and convincing evidence that the disease arose out of the employment and did not arise from causes outside the employment and that the disease either: (1) follows as an incident of occupational disease; (2) is an infectious or contagious disease contracted by workers in the health care industries; or (3) is characteristic of the employment and was caused by conditions peculiar to such employment. Virginia Code § 65.2-401. The elements required to prove an ordinary compensable disease of life must be established by clear and convincing evidence and not a mere probability.  The employee bears the burden to prove all elements of Virginia Code § 65.2-401, including that the disease did not result from causes outside his employment.

A bill has been sent to Governor Northam. If signed into law, it would provide first responders, including firefighters, law enforcement, EMS providers, and correctional officers exposed to COVID-19 while on the job.  The COVID-19 related illness would be compensable “unless such presumption is overcome by a preponderance of competent evidence to the contrary.”

According to the bill, the employee must have a diagnosis of COVID-19 from a licensed physician, after either a presumptive positive test or a laboratory-confirmed test for COVID-19, and presented with signs and symptoms of COVID-19 that required medical treatment.

The bill states that the presumption would apply to death or disability occurring on or after March 12, 2020, and before December 31, 2021.

I believe that COVID-19 claims that healthcare employees and emergency response personnel initiate are likely to be analyzed under Va. Code §65.2-401 covers employment in a hospital, healthcare, emergency rescue, and similar employment settings.   For all other individuals, COVID-19 claims could fall within the “ordinary disease of life” classification.

COVID-19 Presumption Legislation Updates – Maryland

COVID-19 Presumption Legislation Updates – D.C.

COVID-19 Presumption Legislation Updates – Delaware 

COVID-19 Presumption Legislation – Delaware

Delaware does not currently have a statute or law in effect that creates a presumption of compensability for COVID-19 claims, nor are there any laws pending approval.

However, COVID-19 claims are covered under Delaware’s occupation disease laws.  Pursuant to 19 Del. C. § 2301(4), a compensable occupation disease includes all occupational diseases arising out of and in the course of employment only when the exposure stated in connection in addition to that has occurred during employment.

There is a two-prong test for determining compensability.  First, the work conditions must produce the ailment.  In plain English, this means the claimant must have contracted COVID-19 at work.  Second, the nature of the claimant’s employment must pose an increased risk for exposure to COVID-19.  The mere fact that the claimant was infected at work is legally insufficient. Instead, there must be some aspect of the claimant’s employment that increases the chance of infection.  

COVID-19 Presumption Legislation Updates – Maryland

COVID-19 Presumption Legislation Updates – Virginia

COVID-19 Presumption Legislation Updates – D.C.

 

 

COVID-19 Presumption Legislation – Maryland

As a result of the COVID-19 pandemic, the Maryland Legislature has introduced eight bills that seek to include COVID-19 and the related Severe Acute Respiratory Syndrome Coronavirus 2 (SARS-CoV-2) as an occupational disease, as well as expand the classes of employees who are entitled to the §9-503 presumption.  The proposed bills are currently pending second hearings in their respective original chambers.  Each of the proposed bills creates a presumption of compensability as a result of COVID-19 and SARS-CoV-2 for at least one class of employees, and all except for House Bill 1247, Senate Bill 725, and Senate Bill 860 include a provision that permits any covered employee, not within a class contemplated by the bill to file an occupational disease claim with the Workers’ Compensation Commission or a personal injury claim under state law. The bills will be discussed in more detail below.

House Bill 1199 and Senate Bill 813 are the most expansive bills on the table. These bills create a presumption of compensability for firefighters and first responders, childcare workers, education workers, healthcare workers, and essential workers.  The presumption applies so long as the following three (3) elements are met: (a) the employee is suffering from the effects of SARS-CoV-2; (b) the employee has been diagnosed with COVID-19 or tests positive for SARS-CoV-2 or related antibodies; and (c) the employee’s duties required him or her to perform labor or services at a location other than the employee’s home or residence within 14 days of the onset of symptoms.  The bills require that the employee seeking compensation must provide the employer or insurer a copy of the positive COVID-19 test or written documentation confirming the diagnosis.  The presumption created by these bills can be rebutted only if the employer or insurer demonstrates that the employment was not a contributing cause of the disease.  These bills are to be applied prospectively, meaning that the presumption would only be applied in cases that are filed after the bills’ effective dates.

Senate Bill 812 provides for the presumption of compensability for firefighters, first responders, and health care workers only and does not include essential workers or childcare workers.  This bill does not require that employees perform work outside of their home within 14 days of the onset of symptoms of COVID-19 for the presumption to apply.  The presumption created by this bill can only be rebutted if the employer or insurer demonstrates that the employment was not the direct cause of the disease.  Finally, this bill requires employees to notify employers within one year and file a claim with the Workers’ Compensation Commission within two years of either the date on which the employee tests positive for SARS-CoV-2 or the related antibodies or the date on which the employee is diagnosed with COVID-19, whichever is later.  If passed, this bill would be applied retroactively and affect any claim filed on or after January 1, 2020.

House Bill 765 provides for the presumption of compensability in firefighters and first responders. For the presumption to apply, the employee must meet three requirements. The employee must prove that: (a) he or she is suffering from the effects of SARS-CoV-2; (b) he or she has been diagnosed with COVID-19 or tested positive for SARS-CoV-2 or related antibodies, and (c) he or she maintained a position that required him or her to be in direct contact with members of the public.  The bill also creates a presumption of compensability for childcare and healthcare workers, so long as the employee (a) is suffering from the effects of COVID-19, (b) has been diagnosed with COVID-19 or tested positive for SARS-CoV-2 or related antibodies, and (c) maintained a position that required him or her to be in direct contact with patients or children of first responders or health care workers, or occupy, clean, or repair areas occupied by patients or the children of first responders or health care workers.  The presumption created by this bill may be rebutted only if the employer or insurer demonstrates that the employment was not a direct cause of the disease.  This bill does not specify whether it is to be applied retroactively or prospectively.

House Bill 1247 and Senate Bill 725 are the only bills currently circulating through the Maryland Legislature that do not expand the presumption of compensability beyond firefighters and first responders.  These bills create a presumption of compensability in firefighters and first responders, so long as the employee is (a) suffering from the effects of SARS-CoV-2; (b) maintained duties require direct contact with members of the public, and (c) has been diagnosed with COVID-19 or tests positive for SARS-CoV-2 or related antibodies.  These Bills would be applied prospectively.

Senate Bill 756 creates a presumption of compensability in firefighters and first responders, so long as the employee is suffering from the effects of SARS-CoV-2 and has been diagnosed with COVID-19 or tests positive for SARS-CoV-2 or related antibodies.  This bill also expands the presumption of compensability to health care workers, so long as the employee is suffering from the effects of SARS-CoV-2; has been diagnosed with COVID-19 or tested positive for SARS-CoV-2 or related antibodies; and was required to be in direct contact with patients or occupy, clean, or repair areas occupied by patients.  This bill would be applied retroactively and would affect any claim filed on or after March 5, 2020.

Unlike the other pending presumption legislation, Senate Bill 860 creates a presumption of compensability in public school employees.  Under this bill, a public school employee would be entitled to the presumption so long as the following requirements are met: (a) on or after March 1, 2020, the employee tested positive for or was diagnosed with COVID-19 within 14 days after a day that the employee performed labor or services at a public school or other assigned workplace outside the employee’s home at the employer’s discretion, and (b) the test was performed, or the diagnosis was made by a healthcare practitioner who is licensed, certified, or otherwise authorized under the Health Occupations Article to perform the test or make the diagnosis.  The presumption created by this bill can only be rebutted if the employer or insurer can show by substantial evidence to the contrary that the employee tested positive for or was diagnosed with COVID-19 for reasons not arising out of and in the course of employment.  This bill is to be applied retroactively and would apply to claims filed on or after March 1, 2020.

COVID-19 Presumption Legislation Updates – Virginia

COVID-19 Presumption Legislation Updates – D.C.

COVID-19 Presumption Legislation Updates – Delaware 

Davis v. Regency Lane, LLC: When Is the Landlord Responsible for Two Fatal Shootings in the Common Area? Not When There Is No Evidence of the Circumstances Behind the Shooting.

A common issue that arises in the context of landlord-tenant relationships is the extent to which a landlord owes a duty to protect tenants and invitees against the criminal acts of third parties. Recently, in Davis v. Regency Lane, LLC, No. 1747, Sept. Term 2019 (Md. Ct. Spec. App. Jan. 28, 2021), the Court of Special Appeals revisited this issue in a reported opinion. The Davis case involved a wrongful death action against an apartment building owner, Regency Lane, LLC, brought by the estates of two teenagers who were shot and killed by an unknown assailant outside an apartment building in the parking lot. Plaintiffs alleged that Regency negligently failed to exercise reasonable care in providing adequate security measures on the premises to protect the tenants and invitees from foreseeable criminal activity. Through the course of discovery, Plaintiffs failed to provide any evidence regarding the circumstances of the shooting. The Circuit Court for Prince George’s County granted Regency’s motion for summary judgment, finding that Plaintiffs had failed to identify a dangerous physical condition that existed, that the shooting was a result of that condition, or that past criminal activities alerted Regency to the foreseeability of the deadly shootings. Plaintiffs appealed.

In its discussion, the Davis court provided a summary of the duty owed. Generally, a landlord has no special duty to protect tenants against crimes perpetrated by third parties on the premises. The landlord does have a duty, however, to exercise reasonable care, under the circumstances, in areas within the landlord’s control, such as common areas. If the landlord knows, or should know, of criminal activity against persons or property in the common areas, he has a duty to take reasonable measures, in view of the existing circumstances, to eliminate the conditions contributing to the criminal activity. The duty in that situation is to provide reasonable security measures to eliminate foreseeable harm.

For a landlord to have a duty to provide reasonable security measures, two things must be shown. First, a landlord must have the knowledge or should have knowledge based on the circumstances, that criminal activity on the premises has created a dangerous condition. Once a landlord has the requisite knowledge, the landlord must take reasonable measures to eliminate the condition contributing to the criminal activity. Second, the particular harm must be foreseeable, i.e., a landlord of ordinary intelligence, based on the nature or past criminal activity, should have foreseen the harm suffered. If the harm is not the type that would be associated with the known criminal activity on the premises, there is no duty to take measures to eliminate that harm.

The court found that there were sufficient facts in the record to support the finding that Regency had knowledge of criminal activity, and that the shootings were a foreseeable harm of that criminal activity. Therefore, Regency owed a duty to the decedents to take reasonable security measures to eliminate that harm. The court noted, however, that the appellants had not shown that a dangerous condition contributed to the shooting. The court held that “where appellants produced no evidence regarding the circumstances of the shooting, appellants could not meet their burden to show that any failure by Regency to satisfy its duty to take reasonable security measures was the proximate cause of the shooting.” The court explained that where the breach of duty is the failure of a landlord to provide security measures against known criminal activity, proximate cause will be found if “the breach enhanced the likelihood of the particular activity.”

In its analysis, the court acknowledged that proximate cause ordinarily is a question of fact. However, the court explained that when plaintiffs fail to meet their burden of showing a viable theory of causation in a negligence case, summary judgment is proper. The court again emphasized that appellants produced no evidence regarding the circumstances of the shooting, how it occurred, or what precipitated it. As such, there was no evidence to support a finding that extra security measures could have prevented the shooting. The court explained that proof of causation could not be based on mere speculation. Based on this lack of evidence, the court determined that appellants failed to show that inadequate security measures caused the decedents’ deaths. Accordingly, there was no triable issue of material fact to present to a jury on the issue of proximate cause. Therefore the circuit court properly granted summary judgment in favor of Regency.

Written by Andrew Stephenson and Colin Grigg.

 

 

Caging the Reptile: McNamara v. Navar

Plaintiffs use of the “Reptile Theory” in trucking cases has undoubtedly led to many so-called nuclear verdicts but, and arguably worse, it has also provided a basis to leverage inflated settlements in countless more cases. Sure, defendants can attempt to counter the Reptile Theory with arguments regarding admissibility backed by promising motions in limine, for which solid legal precedent exists, but the bad chemistry following a battering reptile deposition of a driver or safety manager is often indelible. Many mediations are consumed by plaintiffs touting deposition responses to Reptile Theory questions advancing the lofty higher calling of public safety. Plaintiffs pursuing this theory relentlessly attempt to point to and highlight the disparity between commitments to safety and the apparent lack of implementation through the use of mismanaged hypotheticals. The pursuit of tort justice is hijacked by notions of protecting the community at large from danger by holding defendants accountable with punishing settlements and threats of nuclear verdicts.

Courts around the country are certainly wising up to the Reptile Theory and seeing it as the “Golden Rule” end run that it is. There is now ample authority to support motions in limine that prevent plaintiffs from encouraging jurors to view compensatory damages as punitive in nature. Courts are weary of plaintiffs turning civil trials into a safety arena where broader societal issues are to be remedied[1]. But, until recently, defendants have been left to fend for themselves in the face of plaintiffs’ Reptile Theory tactics throughout discovery and at mediation. A recent opinion from the United States District Court for the Northern District of Indiana in The Estate of Richard McNamara, III v. Jose Navar, 2020 WL 2214569, offers some hope to defendants seeking to cage the reptile at the outset of litigation, thereby avoiding, or at least limiting, its impact on the discovery process and settlements.

McNamara v. Navar was a wrongful death action premised on the tort of negligence arising out of a tractor-trailer accident. Defendants filed a Motion for Protective Order in advance of the deposition of the defendant driver seeking to prohibit Plaintiff from asking reptile theory questions, including hypotheticals, regarding knowledge and the purpose of various safety rules for tractor-trailer operation on the basis that such questioning would create confusion around the applicable duty of care. Against Plaintiff’s opposition, the Court granted Defendant’s Motion for Protective Order.

The McNamara Opinion rested on Rule 26(c)(1) of the Federal Rules of Civil Procedure, which provides, in pertinent part, that “[a] party or person from whom discovery is sought may move for a protective order” and that “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense….” The Court recognized that reptile-trained attorneys look for ways to attempt to communicate to juries that “safety” is “the purpose of the civil justice system,” and that “fair compensation can diminish . . . danger within the community.” Further, the Court recognized that the defining purpose behind reptile tactics is to “give jurors [a] personal reason to want to see causation and dollar amount come out justly, because a defense verdict will further imperil them. Only a verdict your way can make them safer.” The Court ultimately reasoned:

Navar has not been designated as an expert by the defense. His testimony, as a lay witness, is limited to one that is rationally based on his perception, helpful to clearly understanding his testimony or to determining a fact in issue, and not based on scientific, technical, or other specialized knowledge. Federal Rule of Evidence 701. Accordingly, asking Navar about alleged “safety rules,” including generalized hypotheticals, would fall outside the scope of permissible discovery. The purpose of a deposition is to discover the facts. Hypothetical questions are designed to obtain opinions and are beyond the scope of the deposition of a lay witness.

In reaching its decision, the McNamara Court expressly rejected Plaintiff’s argument that the anticipated line of questioning related to safety rules was likely to produce discoverable information as conclusory and unsupported.

Other courts had previously declined to go as far as the McNamara Court. In Beach v. Costco Wholesale Corp., the United States District Court for the Western District of Virginia, 2019 WL 1495296, in response to a similar motion for protective order, reasoned that the discovery phase of litigation is not the proper stage for rulings on disputes over what material may ultimately be presented to a jury, reasoning:

While I acknowledge Costco’s concerns that the overarching “Reptile Theory” strategy can be employed in the discovery process, I decline to issue a ruling preemptively barring the use of a strategy that Beach’s counsel has not expressed any intent to employ, and I make no finding as to the propriety of such a strategy…even if a ruling on “Reptile Theory” strategy were appropriate at this stage, I am inclined to agree with Beach that “it is impossible to conceive of what an order granting Costco’s motion would proscribe.

Perhaps the McNamara decision will portend to a broader movement to eliminate “Reptile Theory” tactics at important depositions. At a minimum, it will serve to pave the way for defendants to create an early record of the objectionable conduct and bring the court’s attention to the Reptile Theory issues well in advance of trial.

[1] See Woulard v. Greenwood Motor Lines, Inc., 2019 U.S. Dist. LEXIS 131701 *6-7 (S.D. Miss., Feb. 4, 2019) (holding that any mention of non-specific “safety rules” at trial would be irrelevant to the issues before the court and “even if marginally relevant, the probative value of such evidence or argument would be substantially outweighed by the dangers of unfair prejudice, confusing the issues, misleading the jury, and wasting time.”); Pracht v. Saga Freight Logistics, LLC, 2015 U.S. Dist. LEXIS 149775, 2015 WL 6622877, at *4 (W.D.N.C., Oct. 30, 2015) (granting defendant’s motion to preclude “reptile” arguments at trial); J.B. v. Mo. Baptist Hosp. of Sullivan, 2018 U.S. Dist. LEXIS 19689 2018 WL 746302, at *6-7 (E.D. Mo., Feb. 7, 2018) (sustaining defendant’s motion to preclude plaintiff’s use of “reptile” theory argument); Brooks v. Caterpillar Global Mining Am., 2017 U.S. Dist. LEXIS 125095, 2017 WL 3401476, at 24-25 (W.D. Ky., Aug. 8, 2017) (granting motion to preclude “reptile” theory arguments and noting its similarity to “send the message” or conscience of the community arguments).

Written by principal Andrew Stephenson.

Ramos v. District of Columbia Department of Employment Services Addresses Theory of Causation

In Ramos v. District of Columbia Department of Employment Services, 227 A.3d 1108 (2020), the DC Court of Appeals (DCCA) stated that unless the defense addresses the claimant’s theory of causation, the presumption is not rebutted.  In Ramos, the claimant, Maria Ramos, was employed as a custodian.  She had uncontrolled hypertension and poorly controlled diabetes.  While at work, she suffered a stroke.  The defense’s Independent Medical Examination (IME) stated that the stroke’s major contributory factors were poorly controlled diabetes and uncontrolled hypertension.  The IME doctor said he would not attribute the stroke to the claimant’s employment.  However, upon further questioning from the claimant’s attorney and the Administrative Law Judge (ALJ), the IME doctor testified that physical exertion will increase a person’s blood pressure and that strokes could result from high blood pressure.  The IME doctor also stated that he could not offer an opinion about whether or not the claimant’s job responsibilities would in any way cause her to have the stroke.  The IME doctor stated that he did not have information regarding the specifics of the claimant’s employment (he did not witness what her job responsibilities involved or how heavy duty they were). Therefore, he could not provide an opinion as to that specific question.  The claimant argued in closing that physical exertion of her work aggravated her hypertension and thereby caused her stroke.

The ALJ denied the claim and, the Compensation Review Board (CRB) affirmed.  The DCCA reversed, stated that it was compensable, and remanded for an order consistent with its decision.  The DCCA stated:

  1. The aggravation rule is well-established as a valid theory.  “Whether [the claimant] was teetering on the edge of a stroke independent of her work is thus beside the point; if her work inched her over that edge, however slightly, her injury is compensable.”
  2. The employer did not refute the claimant’s theory of causation.  The defense IME said he did not have an opinion on that.  “If the employer fails to address and rebut the employee’s theory with substantial evidence, the presumption of compensability stands.”

In other cases, the DCCA has held that the claimant is not limited to one theory of causation. The ALJ is obligated to consider other possible theories of causation that the claimant did not raise, including possible causes the claimant did not notice or remember.  Nor does there need to be a discrete traumatic event.

The takeaway:  Defense experts have to address the claimant’s specific theory of causation and other possible work-related theories of causation.  Defense experts should know the claimant’s job duties.  One must be as thorough as possible when defending a workers’ compensation claim in DC.

Written by counsel Naureen Weissman.

Enforcement of Arbitration Provisions in the Context of Wrongful Death Claims in Virginia

Arbitration clauses are contained in a variety of contracts including those related to construction, employment, and nursing home care and they purport to require the parties to resolve their disputes through arbitration (outside the courtroom).  Generally, courts hold the contracted parties to their agreed-upon bargain.  The Supreme Court of Virginia has held that the meaning of a contract must be “gathered from all its associated parts assembled as the unitary expression of the agreement of the parties.”  Hale v. Hale, 42 Va. App. 27, 31 (2003) (quoting Berry v. Klinger, 225 Va. 201, 208 (1983)).  It has also held that the various provisions of a contract must be “. . . harmonized, giving effect to each when reasonably possible. . . .”  Schuiling v. Harris, 286 Va. 187, 193 (2013).  In addition to the existence of a plethora of common law about contract enforcement, the legislature enacted a statute aimed at the enforcement of arbitration provisions specifically.  Pursuant to Virginia Code § 8.01-581.02, upon a moving party’s showing of an agreement to arbitrate and upon refusal of the opposing party to arbitrate, the court “shall order the parties to proceed with arbitration” (emphasis added).But the enforceability of an arbitration provision within a contract is not always so simple or straightforward.  One complication arises when a party tries to enforce an arbitration provision within a nursing home contract against a plaintiff making a wrongful death claim.  Many states have refused to enforce arbitration in this context as against public policy, but Virginia does not have much controlling case law on the matter.  Luckily, the United States Supreme Court shed light on this issue by reversing a West Virginia Court of Appeals holding in 2012.  See Marmet Health Care Center, Inc. v. Clayton Brown, 565 U.S. 530 (2012).  In Marmet, three separate nursing home cases were dismissed by West Virginia state courts based on arbitration clauses included in the admission agreements.  In each of the three cases, a family member of a patient who had died sued the nursing home in state court, alleging that negligence caused injuries or harm resulting in death.  In each case, “a family member of the patient requiring extensive nursing care had signed an agreement with a nursing home on behalf of the patient” which included a clause requiring the parties to arbitrate all disputes.  Id. at 531.  On appeal, and after consolidating the three cases, the West Virginia Supreme Court of Appeals reversed the dismissals, holding that the arbitration clauses were unenforceable as a matter of public policy because they were adopted “prior to an occurrence of negligence that results in personal injury or wrongful death.”  Id. at 532.The United States Supreme Court held that that “[s]tate and federal courts must enforce the Federal Arbitration Act (‘FAA’), 9 U.S.C. § 1 et seq., with respect to all arbitration agreements covered by that statute.”  Id. at *530.  The Court further clarified that the FAA does apply to arbitration provisions related to wrongful death suits and that “the Supreme Court of Appeals of West Virginia, by misreading and disregarding the precedents of this Court interpreting the FAA, did not follow controlling federal law implementing that basic principle (emphasis added).”  Id. at 531.  Quoting itself in a prior case, the Court stated that the “statute’s text includes no exception for personal-injury or wrongful-death claims.  It requires courts to enforce the bargain of the parties to arbitrate.”  Id. at 532-533 (citing Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 217 (1985).Though the Marmet decision sheds light on the United States Supreme Court’s position on the matter, it is hard to tell whether and when Virginia will follow suit.  In the meantime, any arbitration provision (along with the remainder of a given contract) should be reviewed with legal counsel regularly to ensure that each clause remains enforceable over time and with changes in the law.For more information about this article, please contact Elena Patarinski at 804.932.1996 or epatarinski@fandpnet.com.