The Lighter Side of Health Law - May 2022

AHLA's monthly podcast featuring health lawyer and blogger Norm Tabler's informative and entertaining take on recent health law and other legal developments.

To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.

Transcript

Speaker 1: 0:07

This episode of ALA, speaking of health law is brought to you by HLA members and donors like you for more information, visit American health law.org.

Speaker 2: 0:22

Hi, I'm norm Tablo with this month's edition of the lighter side of health law, Alexa Dodges, some but not all bullets. Well, Alexa is back in the news. You remember Alexa, the lady from Amazon who lives inside your echo dot and other devices, as we've discussed before she's been sued in a massive class action, because although she sounds like the nicest person you'd ever wanna meet, she eavesdrops even when you don't ask her to listen or even wake up, what's more, she records and stores a lot of the stuff that shears, wow, you might think that the people with the most legitimate claims would be the millions who registered their devices with Amazon. But in fact, they were the first to be dismissed, at least for a lot of the claims. Why? Because when they registered, they agreed to resolve all disputes under Washington state law and in registering, they also agreed to recording and retaining their communications. Even unregistered users cannot proceed with communications when they asked Alexa to wake up, but they can for claims when they thought she was asleep in short, a lot of plaintiffs and claims bit the dust, but a lot survived. The case is garner versus Amazon Western district of Washington. Personally, I'd like to see a SmackDown between Alexa and Siri. Sometimes it's easier to file a lawsuit than dismiss it. Ariella Torres recently found that out Ariella sued and neurosurgeon for malpractice. She had a February 16 deadline to file the required medical expertss report. Instead of filing it, she filed a motion to voluntarily drop the suit. And that was fine with the judge case closed, right? Well, no, the defendant had a few ideas. First, the dismissal should be with prejudice. Second Aela should pay his attorney's fees and costs because he insisted that's what the Texas med mouth statute says should happen. The judge cited with ACE on appeal, the court of appeals reversed ruling that the defendant was right. He was entitled to dismissal with prejudice and to have ACE cover his attorney's fees and costs. The trial judge had abused his discretion by ruling. Otherwise the case is neurological associates of San Antonio versus Torres Texas court of appeals telling it like it is judge Jonathan Young, presiding over the huge opioid case in Tennessee believes in telling it like it is telling anyone and everyone just how he feels about companies that produce opioids as well as their lawyers in a hearing on sanctions against one of the defendants for alleged discovery violations. Judge young said he would declare the company in default and he went on. If their former lawyers showed up at the hearing, they quote, might be going to jail with or without their toothbrush. I assume he meant toothbrushes in the plural. They were accused of discovery violations, not sharing a toothbrush. Then he gave law 360 an interview in which he declared the company guilty of quote, the worst case of document hiding I've ever seen. It was like a plot out of a John Grisha movie, except that it was even worse than what Grisha could dream up. Then he took to Facebook to complain that the local media were not paying enough attention to the case. And to him, when a commenter asked why the case deserved publicity, he responded that it was a$1.2 billion case. And last, anyone wonder about his motives. The Facebook page carried the subtle message reelect judge young. Well, for some reason, the company thought he might be prejudiced against it and filed a motion requesting that he recused himself. He responded by ruling against the company on the discovery motion and entering a default judgment against the company. That's right. Default the death penalty only then did he turn to the recusal motion, denying it on the grounds that golly, there's no reason to think he's prejudiced. Well, the Tennessee court of appeals beg to differ ruling that he should have recused himself and vacating his sanctions order, including the default judgment judge young will be on the sidelines watching another judge preside over the case. The case is clay county versus Purdue pharma, Tennessee court of appeals, death of a classic all-purpose excuse. We've all used a variation on one or more of the classic all-purpose excuses at one time or another for failure to be prepared, failure to complete a project failure to show up any kind of failure. The excuses include such favorites as the dog ate my homework. I left it in my locker and my granddad died well sad to say a New York lawyer abused one of these classics, death of granddad so badly that it's probably no longer viable in litigation. When lawyer Richard Liba woods skipped a conference at federal court without notice the judge demanded documentation, he submitted a letter saying his grandfather died on the very morning of the hearing. The judge said the letter was not documentation. Richard said it was the judge demanded granddad's death certificate. When Richard wouldn't provided after several months of back and forth, the judge imposed a$500 a day fine and threatened him with arrest facing arrest. Richard appeared before the judge flagged by two criminal defense lawyers. By that time he'd had to dismiss his case and he'd paid$3,700 in daily fines, as well as the opposing party's legal fees for the conference. He skipped. He also owed legal fees to its defense lawyers. He was in contempt for disobeying two orders to produce. Andy was referred to the grievance committee. The irony is that Richard's grandfather had died, but three days before the conference, he skipped not the morning of the conference, nevertheless, by abusing a perfectly good excuse and making a federal case of it. Richard has ruined it for the rest of us in the future. I'd stay away from the dead granddad gambit stick with variations on the dog, ate my homework, or I left it in my locker. The underlying cases, burger versus imagine a consulting Southern district of New York accidental damage. That's not an accident. You might think that if you damage property by accident, your accident policy would cover it. But that's not necessarily the case as Miriam, GIA, and recently discovered Miriam hired contractors to clear and level land on her property. And the contractors did just that. But it turned out that Miriam was mistaken about the location of her property line, the property, the contractors cleared and leveled belonged to her neighbor, who it turns out liked property, the way it was with trees and Hills. When the neighbor sued Maryam, she tried to hand the case over to EISs her accident insurer. After all it was an accident. She certainly hadn't meant to do anything to her neighbor's property EIS denied coverage, arguing that it was not an accident. The court agreed with EIS. Sure. The court said Miriam was mistaken about the property line. And it was an honest mistake. You might even call the mistaken accident. But the question here is whether what she did was an accident. And what she did was hire contractors to clear and level the land that was no accident. It was intentional judgment for EIS. The case is Gian versus EIS, California court of appeals, little things mean a lot. Here's a case that proves little things mean a lot by little. I mean the difference between the articles a and B and whether one letter is capitalized or lower case. And by a lot, I mean 3.5 million gateway Terry LLC is wholly owned by a pension fund for the state and local government employees. There's no doubt that it qualifies as a political subdivision of the state. So why did a Maryland county refuse its application for exemption, from recording and transfer taxes? After all the recording statute grants an exemption for quote, a political subdivision in the state and the transfer tax statute grants exemption for conveyance to quote any political subdivision of the state. The county refused the exemptions because the LLC is a subdivision of California and the county insisted that the exemptions apply only to political subdivisions of Maryland. But wait, the LLC lawyers argued the statutes. Don't say, state of Maryland. They say state period, no, you wait. The Maryland court of appeals ruled the exemption statutes. Don't say political subdivision of a state. They say the state and only Maryland is the state. Each of the other 49 is a state, not the state. Also when the statutes say state, they capitalize the S only Maryland qualifies for capital S the other 49, get a puny lower case S pay the 3.5 million. The case is gateway Terry LLC versus prince George's county, Maryland. First things. First, California law includes the standard protection of fair comment about judicial proceedings. For example, a plaintiff's lawyer can tell a journalist and the public, the allegations in his client's case, that's the law that attorney Steven Larock invoked when surgeon Terry Dubrow sued for defamation after LA Brock told New York posts page six and TMZ that the surgeon had botched surgery on his client and left instruments inside her, but both the trial court and the appellate court found a flaw in attorney lab Brock's position. When he made the comments, he had not filed a lawsuit. He couldn't have been commenting on judicial proceedings because they weren't any yet. So the only thing the court dismissed was his motion to dismiss the case is Dubrow versus California court of appeal. Well, that's it for this month's edition. I hope you liked it. I'll be back next month with another edition of the lighter side of health law.

Speaker 1: 9:05

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