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TABLE OF CONTENTS The Brief
Fall 2009 Vol. 39 No.1
Article Abstracts " Medicare Secondary Payer Enforcement: Shifting the Burden of Medicare to the Private Sector"
Jennifer C. Jordan
The Medicare Secondary Payer Act was passed in 1980 to reduce Medicare spending by prohibiting the program from making payment when another entity possesses a legal or contractual obligation to pay for medical treatment. The Medicare, Medicaid and SCHIP Extension Act of 2007 added mandatory provisions for insurers to report settlements or open claims with an ongoing responsibility for medical treatment, giving conditional payments and Medicare set-aside arrangements a prominent role in any insurance settlement negotiation. A lawyer specializing in MSP consulting examines the MMSEA reporting requirement: its $1,000 per day, per claim penalty for failure to report; the impact it may have on the government’s MSP efforts; and how it is likely to impact MSP compliance in liability settlements.
Top Of Page " Medical Device and Pharmaceutical Company Representatives in Operating Rooms: Understanding the Theories of Liability"
Michael J. Summerhill and Aaron M. Chandler
Physicians are medical practice experts but increasingly rely on the product expertise of representatives of pharmaceutical, surgical instrument, and medical device companies who attend surgeries to observe or calibrate products. Two lawyers discuss theories of liability based on the presence of company representatives in the operating or treatment room and suggest best practices to position such companies for an effective defense.
Top Of Page " Injunctive Relief under Federal Rule of Civil Procedure 23(b)(2): Recent Industrial Life Litigation Sheds More Light"
Jeffrey M. Grantham
FRCP Rule 23(b)(2) was promulgated as a tool for plaintiffs in civil rights cases to obtain injunctive relief, employed primarily by persons claiming discriminatory conduct in an employment context. However, to overcome individualized issue hurdles in Rule 23(b)(3) class actions for monetary damages, plaintiffs lawyers began pushing claims formerly brought under Rule 23(b)(3) into the Rule 23(b)(2) arena. One lawyer specializing in complex insurance claims asserts that Rule 23(b)(2) claims should focus on stopping harm to a class rather than a particular individual. He surveys recent life insurance cases to demonstrate that courts have been reluctant to allow plaintiffs to recast monetary claims as equitable relief in order to “bootstrap” their claims under Rule 23(b)(2).
Top Of Page " Hybrid Class Actions: Bridging the Gap between the Process Due and the Process that Functions "
William H. Narwold and Mathew P. Jasinski
Embracing the notion that a defendant’s conduct might warrant both injunctive relief under FRCP Rule 23(b)(2) and an award of damages under Rule 23(b)(3), courts are increasingly willing to certify “hybrid” classes, according to two lawyers specializing in consumer fraud litigation. They contend that hybrid class actions seek to compensate class members for collective and individual harm and suggest this hybrid allows courts to better construct remedies that satisfy common and individual needs of class members while protecting important constitutional rights.
Top Of Page " How Do Courts Calculate Attorney Fee Awards? "
Brooks Magratten, Robert D. Phillips Jr., Thomas Connolly, Renee Feldman and Issac Mamaysky
When a successful litigant is allowed by case law, contract, or statute to obtain attorney fees from the losing party, courts decide on an amount by employing the lodestar method, the predominant basis for determining attorney fee awards. This article examines case law on fee awards and principles of the lodestar method, under which courts multiply the hours an attorney works by the attorney’s hourly rate and adjust that amount up or down depending on the characteristics of a given case.
Top Of Page " Multidistrict Litigation and Bellwether Trials: Leading Litigants to Resolution in Complex Litigation "
Richard J. Arsenault and J.R. Whaley
Among the litigation management techniques and procedures employed to deal with complex litigation are multidistrict litigation (MDL) and bellwether trials, sometimes referred to as “test cases.” Two lawyers explain MDLs and bellwether trials, discussing how the latter can improve the prospects of global resolution and assist in developing efficient trial plans for subsequent litigation.
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