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PRACTICE POINTERS - FALL 2001

From the List Serves:

Since the last column, the MAJ list serves have been abuzz with scores of interesting issues. Here are a few interesting examples:

Restricting Use of Adverse Exams. How do you stop a liability insurer from double-teaming you with their own adverse exam and the no-fault adverse exam? Members of the No-Fault list serve suggested setting conditions before consenting to the adverse exam. Remember, a liability adverse is not automatic; the defendant must show good cause to get a court to order an exam.

Doctors Office After an Injury or Accident Claim

We forget how intrusive a doctor’s exam can be. People hate to go to their own doctor, much less an insurance company doctor. How unreasonable can it be to put a few restrictions on the exam? The insurers are asking our clients to go to a strange office and a strange doctor. They are asking our clients to take off their clothes and put on a hospital gown, undergo an interrogation by an often rude or hostile doctor, and then perform a variety of physical tests.

Requiring that certain stipulations be made before voluntarily attending the exam protects your client. The MAJ Brief Bank has several sample stipulations, including one submitted by Jim Balmer, MAJ member from Duluth. Generally, the stipulation should require insurers to agree to:

If the defendant will not agree to the stipulations, MAJ has a library of orders from various judges throughout the state allowing limitations on exams. ALL PLAINTIFF LAWYERS SHOULD BE USING THESE STIPULATIONS.

Remember, many lawyers will not even call both examiners. Rather, they want to eat their cake, and have it, too. If their examiner finds that your client was seriously injured (In know, I know,….it could happen), the defense lawyer wants to have that rotten, cheap, no-fault exam as a back-up. Why give defense lawyers the bird in the hand as well as the bird in the bush?

Similarly, why not ask for stipulations when the no-fault carrier asks for an exam? “We will waive objections to the reasonableness of the exam if you will agree to pay travel expenses and lost wages in advance, disclose all correspondence with the examiner, the cost of the exam, and the number of times the doctor has performed exams for your company….” Why not require the No-Fault carrier to refuse to allow the liability carrier to use their doctor?

Prevent “Double-Teaming” Adverse testimony after the exams.

If there has already been an unrestricted second exam, how do you stop the defense attorney from calling both doctors? Usually, a motion in limine based on repetitive and cumulative testimony is the answer. MAJ member Paul Peterson posted excellent advice on framing the issues before this motion. To paraphrase:

In the deposition testimony, cross-examine the doctor more intensely than usual on biases. Ask the doctor directly who hired him. If he doesn't remember, point out that it wasn't defense counsel or his "client", but the plaintiff's own insurer. Make an exhibit of the letter scheduling the no-fault adverse. How often does the doctor perform these exams? Does he know or understand that if he says there is no more need for treatment, the plaintiff's insurer will quit paying the bills? Show him the cut-off letter and make it an exhibit. How much does he make doing these exams?The defense attorney will object like crazy, but pound away.

Then, when you have your motion in limine, you've raised a whole host of issues the Judge doesn't want. Should no-fault be discussed (it's not liability coverage, which is the type of insurance we aren't to mention)? Are you into the area of collateral sources? At some point, the Judge may look at the defense lawyer and as the cause of these problems. The defense lawyer is playing this game. He's the one that dearly wants to avoid the mention of insurance.

Suddenly, the opinions of the doctor may seem more cumulative of the one exam the defense is entitled to under the rules and which you graciously and as a matter of professional courtesy did not oppose. Point out how rare this type of maneuver is in your years of experience. The defense lawyer will be on the defensive, trying to put in only part of the depo. You get to sit back and say, "Judge, I didn't think it was fair to the defense to call him at all, but if he does it, I'm entitled to let the jury know who he is and why he's involved. Isn't it better to uphold the standard practice most defense counsel follow voluntarily and keep the whole thing out?" Good luck!

The content and participation on the list serves is tremendous. MAJ regular members with e-mail are all ble to join. Simply call the MAJ at 612-375-1707 and ask to be added to one or more of the lists, which include:

Or visit the Website at www.mntla.com, and apply for admission. Shortly thereafter, you will be participating in one of your best membership values. Currently, the Auto and Tort lists are the most active, but membership on he others lists is growing.

Convention Topics. There were plenty of interesting issues discussed at the MAJ convention in Alexandria. Here are a few samples:

What’s better about getting hit by a rental vehicle in Iowa? Minnesota’s vicarious liability statute, Minn. Stat. § 170.54 (2000), makes owners liable for injuries caused by most drivers, but has a $100,000 Rental Vehicle Liability cap (Minn. Stat. §65B.49 Subd. 5a (i)(2)). The Court of Appeals ruled that it does not apply in an Iowa accident, even where the car was rented in Minnesota. Iowa has an unrestricted Vicarious Liability statute, which the Court of Appeals found to be the better law. As a result, Alamo Rent a Car was not protected by Minnesota’s cap. Boatwright v. Budak __ N.W.2d. __ (Minn. App. C3-00-1843 April 24, 2001, Review denied 7/24/01).

Don’t let rental companies plead Minnesota’s penurious liability cap in out of state accidents where, like Iowa, there is an uncapped rental liability statute. On the other hand, be careful. Some states have no vicarious liability of owners at all, and the rental insurer may get off scot-free.

UM carriers bound by judgment against uninsured tortfeasor. In Kwong v. Depositors Ins. Co., __ N.W.2d ___ (C5-00-242 filed May 24, 2001), the plaintiff notified Depositors insurance of they were bringing a lawsuit directly against the uninsured motorist. Depositors did not intervene, responding that they did not think there was exposure. A Hennepin Count arbitration resulted in a $30,000 award, which was later reduced to judgment. Depositors tried to avoid paying UM benefits, by pointing to a class in their policy.

The Supreme Court held that Depositors must pay benefits in the amount of the judgment, noting:

[A] judgments-not-binding clause will not be enforced to allow a UM insurer to avoid payment of damages established by a valid judgment against uninsured motorists where the UM insurer has received notice of and an opportunity to intervene in the suit against the uninsured motorists.

Kwong provides us with a unique opportunity to provide maximum value for our clients. The Supreme Court does not provide any details as to the exact notice required, but presumably reasonable notice is required.

Mistaken Accident Facts in Medical Records? What do you do when the facts of an accident in the medical records don’t agree with your client’s version? We all know the danger of contradicting medical records, yet we also know that medical records are rife with errors.

There is a medical records exception to the hearsay rule because presumably people tell the truth when there health is at stake. On the other hand, does a doctor or nurse really care if the light was red or the truck was yellow? How is it germane to medical care? Doctors care about symptoms and tests. Many testify that they don’t even care about the speed of the vehicle or the level of property damage, much less which car had the green light!

Many lawyers are unaware that accident facts in medical records are usually not admissible. Lindstrom v. Yellow Taxi of Minneapolis, 214 N.W.2d 672 (Minn. 1974) holds that medical records are NOT admissible to show the facts of the accident. In that case, it was shown that the proponent could not show that the facts of how the accident occurred were germane to the medical care. Another Supreme Court case, Wagner v. Thomas J. Obert Enterprises, 396 N.W.2d 223 (Minn 1986) agrees, but in that case it was found to be harmless error to admit the records. An unpublished case, Gross v. Blomstrom (Minn. App. # C8-96-2495 September 16, 1997) found no abuse of discretion to admit proof of 70 mph speed estimates in a motorcycle head injury. Of course, speed, especially in a motorcycle injury, may be pertinent to the medical care.

Clearly, if there are factual mistakes that do not pertain to medical care, the court should order the records redacted.









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