COMMON
Defense The Arizona Association of Defense Counsel Newsletter
2021-2022 Board of Directors Jill J. Ormond President
Micalann Pepe Vice President
Amy Wilkens Treasurer
INDEX The Arizona Association of Defense Counsel Newsletter
Brian Rubin Secretary
Chris H. Begeman Imm. Past President
SPRING 2021
Adam Lang DRI State Representative
PAGE 3 - MEMORIAM HONORABLE ROSA MROZ
Doreen Myles Executive Director
2021-2022 Board Members J.P. Harrington Bisceglia Amanda Breemes Parker Bunch Todd Erb
PAGE 4 - WHAT’S THE REASONABLE MEDICAL EXPENSE FOR TWO ASPIRIN? IT DEPENDS... PAGE 7 - THE LAWYER AND THE OSTRICH PAGE 9 - SPEAK LESS, SAY MORE PAGE 10 - UPCOMING EVENTS
Jennifer Elias Amanda Heitz John Gregory Jason Kasting Michael Hrnicek
PAGE 11 - YLD UPDATE PAGE 12 - SIDEBAR PAGE 13 - MEMBERS ON THE MOVE
Kara Klima Shanks Leonhardt
PAGE 14 - AADC 2021 HOLIDAY JUDICIAL RECEPTIONS
Grace Lynn Tim McKercher Eadie Rudder David Schmidt J.T. Shoaf Lisa Streu Alexix Terriquez Zara Torosyan Victoria Torrilhon
2021-2022 YLD Board of Directors Kimberly Page Nicholas Martino Anne-Grace Reule Dan Bernardone Board Members: Nathan Gallinat Maxwell Shanahan Madison Farnsworth Seraphim Sparrow Maxwell Shanahan Stephanie Baldwin Jim Carlson Steven Crocchi John Habib
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COMMON DEFENSE | Spring 2022 | azadc.org
IN MEMORIAM
Honorable Rosa Mroz
Maricopa County Superior Court Judge Dedicated Public Servant, Activist, Colleague, Mother, Wife, Friend
What’s The Reasonable Medical Expense For Two Aspirin? It Depends…” BY: PETER COLLINS, JR., GUST ROSENFELD
Splitting headache after an accident. You see an ER nurse, an intern, a radiologist and the ER Physician. CT Scan is negative. You get two aspirin. ER billed your insurer $4.00 for the aspirin. Your insurer paid $0.20 each, a total of 40 cents. Your advocate wants to list that aspirin as $4.00 to the jury. Which is the “reasonable expense” of that aspirin? We have a vigorous debate on the admissibility of medical expenses. Judges issue Minute Entries in different directions. State Bar Jury Instruction Committee debates. As of today, no Court of Appeals has directly addressed it. This article discusses the arguments, various rulings, and suggests a defense perspective. (A longer version with references is available upon request.)
PLAINTIFF TACTICS Personal injury Plaintiffs are entitled to compensation only for those medical expenses that were reasonable and necessary. Burns v. Jaquay, 32 Ariz. 375, 379 (App. 1988). Plaintiffs routinely disclose the full medical expenses caused by the accident, using Plaintiff treating physicians as witnesses. They disclose providers as percipient witnesses, claiming that each would testify to reasonableness of expenses. Those witnesses are not listed as experts, and no foundation for their opinions on medical expenses is provided. These physicians may have an excellent basis for medical opinions, but rarely have basis for opinions on reasonable costs of medical care. This is a separate intellectual regime, where most physicians have no basis. But see Benedict v. Total Transit Inc., 499 P.3d 339 (App. 2021), where a physician was allowed to testify regarding reasonableness because he testified he was "aware" of billing practices. Plaintiff always cite Lopez v. Safeway, 212 Ariz. 198 (App. 2006) (See discussion below). More recently, we have seen Plaintiffs’ Requests for Admissions that medical expenses are reasonable and necessary.
Last year, Pima County Judge Metcalf ruled that a simple denial was insufficient: that the defense must assert – with expert testimony – that the medical bills were NOT reasonable or necessary. Plaintiffs attack defense expert witnesses for lack of foundation for opinions on the reasonableness of bills, when they base their opinions on national statistics. (Klopotowski v. Arizona, MCSC, CV 2020-054681 (1.26.22).
DEFENSE RESPONSE 1. Foundation The mere existence of the bills proves neither reasonableness nor necessity, both of which are required for disclosure and for admission at trial. The bills alone do not accurately describe the procedures performed, the treatment provided or any basis that they represent the reasonable, customary cost of the services rendered. Defendants must take issue with Plaintiff's failure to comply with Rule 26.1(d). Insist that Plaintiffs disclose – by expert testimony with all the foundational requirements - that medical expenses were reasonable. There is no presumption in Arizona that medical bills, standing alone, are admissible without the requisite foundation. In fact, Arizona law states exactly the opposite. LaBombard v. Samaritan Health System, 195 Ariz. 543, 552 (App. 1998) held: full “billed charges” are not the measure of reasonable and “customary charges." In Canyon Ambulatory Surgery Ctr. V. SCF Arizona, 225 Ariz. 414, 422-24, (App. 2010) the Court required proof that amount billed was a reasonable charge and held: the "billed amount" was not the reasonable charge. In Larsen v. Decker, 196 Ariz. 239 (App.2000), the Court held that trial court did not abuse its discretion when it found that no foundation existed that medical bills were caused by and were reasonable and necessary results of Plaintiff’s accident. Plaintiff counsel routinely argue – incorrectly - that Larson never decided that case on the medical billings. A careful reading shows they are wrong. The Court of Appeals affirmed the trial court's exclusion of medical records and expenses for lack of foundation. 2. Hearsay. No exception applies. The only exception that could apply to this issue is Rule 803(6), records of a regularly conducted activity. But Rule 803(D) requires testimony from a custodian or other "qualified witness." The defense should be aggressive in asserting the lack of qualification of Plaintiff's witnesses in this specific area.
3. Lopez v Safeway does not control. In Lopez v. Safeway, defense counsel made a tactical decision to stipulate that the bills would be deemed reasonable and customary. Id. at FN 4. Thus, the Court never reached this issue. Defendants should never so stipulate. 4. Collateral Source? No. Plaintiffs claim this is a collateral source violation but it is not. The defense expert's position relies on national standards for costs. One key is what the doctor accepted as payment in full. Judge Silver issued an excellent opinion in Jiménez v Progressive Preferred Insurance Company, 2020 WL 2037113, summarizing many decisions, and held: “Accordingly, the Court holds the “reasonable expenses incurred for necessary medical expenses” are those expenses which the healthcare provider accepts as payment in full.” (Para 10).
I. PLAN FOR THE DEFENSE A. Challenge incomplete Disclosure Statements. Force Plaintiffs to disclose the basis for "expert" opinions. B. Depose doctors. Challenge their personal knowledge of billings. Ask what they accepted as full payment. C. Hire experts. Multiple experts analyze reasonable expenses. They do not use collateral sources, but national databanks on actual reasonable costs. D. Start early. Challenge Plaintiffs’ lack of foundation at every opportunity. E. Research Published Rates. Every hospital is required to file “usual and customary” charges with ADHS.
I. CONCLUSION Be aggressive. Start early. Challenge Plaintiffs on their lack of disclosure. Depose doctors. Ask specific questions to challenge their foundation. Use published materials. Hire experts early. Don’t swallow the aspirin. Spit it out.
The Lawyer and the Ostrich JOSEPH A. BROPHY, ESQ. JENNINGS, HAUG, KELEHER, MCLEOD Judge Richard Posner once wrote, “the ostrich’s posture is not a seemly one for a lawyer.” To prevent lawyers from assuming that posture, lawyers have duties of inquiry/investigation in a wide variety of situations across many practice areas. It’s a story as old as time. A lawyer is minding his own business when he is introduced to potential new client from South America who wants to invest $1 million cash for the production of a movie, with a goal to use that money to leverage an additional $5 million from lenders to be used for the marketing of the movie. All the new client needs from the lawyer is to deposit the money in the firm’s trust account. Easy billable hours, no? Fast forward a couple years and the lawyer learns, when he is indicted under 18 USC § 1960(a) for operating an unlicensed money transmitting business (colloquially known as money laundering), that the money in the firm trust account was drug money. No this is not autobiographical. But the appellate division of the Supreme Court of New York recently upheld a three-year suspension of a lawyer on exactly those facts, the ABA in 2020 issued a formal opinion on money laundering by lawyers, and the ABA Standing Committee on Ethics and Professional Responsibility is currently considering new model rules that specifically address money laundering. For whatever reason, this is a trendy topic in legal ethics. ER 1.2(d) prohibits a lawyer from advising or assisting a client in conduct the lawyer “knows” is criminal or fraudulent. Which begs the question: what does “know” mean? Some states, such as New York, attribute to a lawyer any facts he “should have known.” In contrast, Arizona has declined to read a “should have known” standard into ER 1.2(d). In re Tocco, 984 P.2d 539, 543 (Ariz. 1999) (“While actual knowledge can be proven by circumstantial evidence, a mere showing that the attorney reasonably should have known her conduct was in violation of the rules, without more, is insufficient.”)
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Speak Less, Say More FRANK RAMOS, ESQ. CLARKE SILVERGLATE
Technology had transformed how we communicate. We receive our information on headlines that pop up on our phones and short posts on social media. There is little time for depth or analysis, and none for digressions or meanderings. If you want to affect behavior through your words, you have to use as few as possible and ensure every word you write or speak is imbued with transcendent meaning. TED Talks show that the most effective speeches are short, direct and to the point.
If you’re leading a law firm, company or non profit, your job is to share your vision, get others to buy into it and inspire them to pursue it wholeheartedly. The challenge is your audience needs to be convinced quickly or likely not at all. Meetings, PowerPoints and presentations that take too long will lose your audience and dilute your vision. Get to the point, make the point and move onto the next points. Here are some tips to make your speaking and writing succinct and powerful: Avoid what others have to say about your vision. It’s your vision. Don’t repeat stories or anecdotes from books you’ve read or presentations you’ve attended. Share your story, and share only the heart of the story and the lessons learned from it. No one cares what you did or what you personally learned. They only care what they can learn from it and how they can apply it to their careers and lives. Continue Reading
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COMMON DEFENSE | Spring 2022 | azadc.org
March 9, 2022 CLE Webinar: Assessing Causation Through the Synchronization of Biomechanical Engineering and Accident Reconstruction March 23, 2022 Webinar: Evidentiary Issues in Medical Billing
AADC Events March 24, 2022: Barry Fish ALS Top Golf Tournament April 16, 2022: YLD Softball Tournament (details TBA) May 20, 2022: AADC Annual Meeting (details TBA)
Join the AADC in supporting the following charities for Arizona Gives Day: Southwest Human Development Community Legal Services Arizona Center for Disability Law Florence Immigrant & Refugee Rights Project
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COMMON DEFENSE | Spring 2022 | azadc.org
The AADC YLD board has grown to twelve members representing seven law firms including: Bowman & Brooke; Gordon Rees; Jaburg Wilk; Jones, Skelton & Hochuli; Keller, Nebeker, Carlson, Haluck; Rai & Barone; and Snell & Wilmer. The November CLE hosted by the AADC YLD and presented by Rimkus was a success with approximately 50 people in attendance. The YLD is planning another CLE program for spring 2022. Stay tuned for details. We are excited to announce the annual YLD Charitable Softball Tournament is back for 2022! The YLD is in the planning stages for an April tournament, being cognizant of COVID-19 and needed precautions. Once again, we are partnering with Southwest Human Development, an Arizona non-profit focused on early childhood development, to host the tournament and annual raffle. Break out those gloves and join us for some healthy competition benefitting Arizona children! The YLD mentorship program is focusing on law student outreach and is seeking law school representatives from ASU and University of Arizona. If you know a current law student who would be interested in serving on the AADC YLD Board, please email sbaldwin@jshfirm.com.
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COMMON DEFENSE | Spring 2022 | azadc.org
SIDE BAR Top Ten Ways to Commit Bad Faith By Don Myles, Jr., Esq. Jones, Skelton & Hochuli 10. Forms. The public loves them. Never mind that many of them have nothing to do with the claim in hand. If you have a form, ask that it be filled out, preferably twice. For the best, result send out all the forms one by one spaced 2-3 weeks apart. 9. Disparagement. Never miss an opportunity to insult the insured or the insured's lawyer in the file. Brainstorming with co-workers at lunchtime and making entries later is the best way to come up with the funniest insults. 8. Inconsistency. Life can sometimes be boring. Why miss the opportunity at work to treat similar claims or insureds differently? Make every effort to interpret coverages differently or value similar claims differently. If possible, enter incorrect figures into a computer program that evaluates claims and never waiver from what the computer tells you. Computers are always right. 7. Alzheimers. Why make an effort to write down important information in the claim file? Rely on your superior intellect and ability to re-create the file years later under the pressure of a deposition. 6. Saving. Try and make the underwriting department look good by underpaying claims or making low ball offers to improve the loss ratio of the Company. The CEO will be impressed and give you a big raise and stock options. 5. Surprise. Don't inquire as to the experience of defense counsel. I mean we all started somewhere. It's much more fun to find out after an adverse result that the attorney for the insured never tried this type of case before. 4. Bias. Make it appear that the insurance company is looking for a way not to pay the claim. Later you can convince the jury that it was just a coincidence that everything you highlighted or underlined in the file was adverse to the insured's interest. 3. Prejudgment (see also bias). This one is so good I had to bring it up again. Investigations will go quicker and you will save time if you first come up with a theory and then perform only the investigation necessary to support your theory (i.e., fire = arson). 2. Reservation of Rights. Do it early and often. More is better. The longer you can string site provisions of the policy, the stronger the basis for denial. Damron and Morris agreements are not to be afraid of. So what if the insured stipulates a $1 million judgment on a $15,000 policy? 1. Delay. Everyone knows that if you wear down the insured you pay less on the claim. The jury will not hold it against you in a bad faith trial. They simply see this as a game. Call the insured at lunchtime, call them at home when you know they are at work. Whenever possible, mail letters to give you additional time which will help in accomplishing the objectives set forth in number 6 above.
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COMMON DEFENSE | Spring 2022 | azadc.org
Members on the Move Alison Christian, Esq. Former Christian, Dichter & Sluga shareholder, Alison Christian, recently joined Liberty Mutual Insurance to manage bad faith and EC litigation for the carrier and its affiliates. Alison is the co-founder of a business development program called “Ladder Down” that focuses on empowering women lawyers.
Georgia Staton, Esq. Jones, Skelton and Hochuli partner, Georgia Staton, was recognized as the “2021 Trial Lawyer of the Year” by the Phoenix Chapter of the American Board of Trial Advocates.
Mel McDonald, Esq. Mel McDonald retired from the practice of law after 35 years at Jones, Skelton & Hochuli. Before joining the firm, Mel served as a U.S. Attorney for the District of Arizona, a prosecutor for the Maricopa County Attorney’s Office and as a Maricopa County Superior Court Judge.
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COMMON DEFENSE | Spring 2022 | azadc.org
AADC 2021 Holiday Judicial Receptions Phoenix Holiday Judicial Reception On December 9, 2021, the AADC hosted its annual Phoenix Holiday Judicial Reception (our first in-person event since the pandemic began) on the spacious, newly remodeled patio at the Westin Province in downtown Phoenix. Attendees enjoyed reconnecting with one another and members of the judiciary including Justice James Beene, Judge James Teilborg, MCSC Civil Presiding Judge Pamela Gates, Judge Katherine Cooper and Judge James Smith among others.
Tuscon Holiday Judicial Reception The AADC and Tucson Defense Bar reunited to host their joint Tucson Holiday Judicial Reception honoring retiring Pima County Superior Court Judge Leslie Miller on December 14, 2021. The event has held downtown on the charming patio at Café al la C’Art adjacent the Tucson Museum of Art. Jenckes Closing Argument Finalists from University of Arizona law school were also honored at the event and received awards from the AADC and TDB in recognition of their accomplishments.
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COMMON DEFENSE | Spring 2022 | azadc.org
AADC Newsletter Committee: Amy Wilkens (Lorber, Greenfield & Polito, LLP), Brian Rubin (Thomas, Rubin & Kelley, P.C.), Eadie Rudder (Carpenter, Hazlewood, Delgado & Bolen), Jennifer Elias (Farley, Choate & Wood), Grace Lynn (Bremer, White, Brown & O'Meara), Kara Kaplan (Gordon Rees), Stephanie Baldwin (Jones, Skelton & Hochuli), and Doreen Myles (AADC Executive Director)