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Expert Speed Testimony now allowed in NC

New DWI Laws Allow Speed Testimony under Rule 702(i)
As of December 1, 2006, the new Rule 702(i) will allow accident reconstructionists who have been qualified as experts to give an opinion as to the speed of a vehicle, even if they did not observe the moving vehicle(s). Please note that this should apply to accidents occurring on or after December 1, 2006.

You can view the legislation as ratified
on the General Assembly's website.

Speed Testimony not Allowed in Past

North Carolina case law over the last decade has not allowed expert speed testimony.  The only speed testimony allowed has been from eye witnesses who actually had the opportunity to observe the vehicles.  There have been several cases where qualified experts have attempted to give speed testimony, but have been blocked.

Speed Testimony a killer combined with Contributory Negligence

North Carolina is, of course, a contributory negligence state.  That means that if the Plaintiff contributed to the negligence that caused the injury or damages, the Plaintiff is completely barred from recovery.

I think that with this new rule, we Plaintiff's will see a huge increase in the number of contributory negligence defenses.  I particularly think this will be the case in Interstate collisions where the common juror knows that most people exceed the posted speed limit.

Also, I think we'll see this defense mounted in country road intersection cases.  The type where the defendant pulls from a side road to the "main" country road that connects two rural towns.  Many of these rural roads have speed limits of 45 mph, and local residents routinely exceed that speed when there are no cars present on the highway.

New Cottage Industry of Insurance Experts?

Because insurance companies have nearly unlimited financial resources, I think that we will see quick growth in the accident reconstruction trade and will routinely see "speed opinions" in personal injury cases.  Insurance defense attorneys know that contributory negligence is an easy way to avoid paying on a claim, and that many juries are happy to point the blame both directions, at the Plaintiff and the Defendant.

Additionally, in smaller cases, the Plaintiff may not have the resources to spend several thousand dollars on an expert opinion to contradict the insurance expert's opinion.  So as lawyers, we need to brace ourselves for this in the coming year.

I personally think this is bad law for North Carolina.  I believe in science, but I also believe the old yard, "Statistics don't lie, liars use statistics."  I think that these experts will be "telling" a jury what to do, using complicated formulas, and may be misleading.

Maybe this will lead our General Assembly to conclude, once and for all, that contributory negligence should be replaced with comparative fault and North Carolina should join 47 others states in the modern age.

Tips to Avoid Contributory Negligence and Expert Speed Testimony

  • Get Pictures Early
Expert testimony based on speed is dependent on physical evidence for the most part.  Experts measure skid marks, co-efficients of friction, tire wear, physical impact to vehicle parts, and other objective criteria to make educated guesses on speed.

I've found that it is important to collect the data early because opposing experts tend to only take photographs of what is favorable to their position.  So I suggest that you get out as quickly as possible and document your crash.

  • Spoliation Letters Should go out Immediately
You need to send a spoliation letter to the Defendant and his/her insurance company to make sure that their vehicle is preserved for your investigation.  My guess is that because insurance companies are often very slow to process these items, you may find that the defendant's vehicle gets fixed or sold before they "preserve" the evidence.  If the insurance company destroys the evidence before you can document it, you have an excellent chance to get their expert's opinion precluded with a motion in limine.
  • Eye Witness Statements Trump Expert Opinions
I also suggest that you have a staff member or a private investigator take statements immediately from eye witnesses, including the defendant.  If you have not filed a suit, you can contact the defendant directly.  While this is not law, I believe that an eye-witness account of the speed of the vehicles will "trump" that of calculations of the expert.  Additionally, eye-witnesses will be able to help establish a defense of "last clear chance" saying that your client had no way to avoid the collision, no matter what speed he or she may have been going.

In conclusion, I think the new law will present some challenges to plaintiff's lawyers but if we get the case moving early and prepare for the worst, we should be able to beat expert opinions that have been bought and paid for by the rich insurance industry.

Chris Nichols 1.800.906.5984

North Carolina Trial Law Blog

This post is being placed under this heading in order to allow people to find this Blog easier with Google searching.   The website is

The topics of this Blog include:

medicare, medicaid, trial law, liens, subrogation, personal injury, ERISA, lawyers, and law

The North Carolina Trial Law Blog is published by Nichols Law Firm and attorney Christopher R. Nichols.  My office is based in Raleigh, NC but I also have an office in Hendersonville, NC.  I practice across North Carolina, and work a lot in Durham, Chapel Hill, Greenville, Fayetteville.  In the western part of North Carolina I have worked extensively in Asheville, Hendersonville, Hickory, Morganton, Franklin and all areas in bewteen.

Chris Nichols 1.800.906.5984

NC Lawyer seeks Declaratory Judgment on Ahlborn and NC Medicaid

Lawyer Seeks Federal Ruling on NC Medicaid Law

My friend Carlos Mahoney of Glenn, Mills and Fisher of Durham has filed a Federal DJ action seeking a ruling on whether NC Medicaid (Department of Health and Human Services) is actually following the law (since Ahlborn) in the way it attempts to collect from personal injury settlements.

You can see my previous discussion on what Ahlborn means to NC lawyers here.

Good Newspaper Coverage

Carlos' suit was actually covered by the local newspaper, and covered well, in my opinion.

Here is a clip:

Official sued for blocking injury settlement

By John Stevenson, The Herald-Sun
August 24, 2006   11:20 pm

DURHAM -- N.C. Department of Health and Human Services Secretary Carmen Hooker Odom is being sued on grounds that she allegedly imposed an unconstitutional Medicaid lien on $75,000 owed to an 11-year-old Durham girl injured in a motorcycle accident.

The suit, drafted by lawyer Carlos Mahoney and filed this week in the Durham Division of U.S. Middle District Court, identifies the child only as "D.J.M."

According to the suit, the $75,000 was part of a settlement to reimburse D.J.M. for pain, suffering and permanent scarring that arose after she was hit by a motorcycle in Durham on June 25, 2005.

The suit contends that the Department of Health and Human Services, which administers the state's Medicaid program, has no right to the money because it was not intended for medical expenses. But Odom imposed a lien on the settlement funds anyway, apparently to recover $11,190.45 spent on D.J.M.'s hospital and physician bills, the suit says.

You can read the full story here:  Herald Sun

I'm crossing my fingers that the Federal Court will make sure that Ahlborn is being applied correctly and that the North Carolina Supreme Court will use this as yet another reason to take another look at Ezell.

Chris Nichols 1.800.906.5984

Mea Culpa: The right way to apply the new SEHP legislation

A fellow pliantiff's lawyer, David Lewis of KELLY & WEST ATTORNEYS in Lillington, NC, has correctly pointed out that the new SEHP legislation uses the language from the NC Medical Lien Statute and that the analysis should probably follow that line of lien reduction.(i.e. I got it wrong)  He's aboslutely correct, I think.  The final result comes out almost the same as my analysis, but I'm embarrassed to say that I knew we included the language of NCGS 44 -50 in the SEHP legislation, but forgot to use that same analysis.  The good news is that SEHP is still WRONG.

David's email correctly points out:

The caluclation should be:
30,000 settlement
10,000 atty fees
250 costs
125,000 SEHP lien
FIRST:  Subtract out atty fees and costs to determine "total damages recovered by the Plan member"(not total amount paid by 3rd party)
SEHP not to exceed 50% of "total damages recovered by the Plan member"
THEREFORE:  SEHP lien is $125,000 > $19,750
LIEN IS REDUCED TO 50% of $19,750 =  $9,875.00
Final Disbursement:
30,000 Settlement
-10,000 Attorney Fees
-250 Costs
-9875.00 FINAL LIEN
$9,875.00 to CLIENT
I think you nailed this analysis, David.
Chris Nichols 1.800.906.5984

SEHP lien statute signed by Governor, but not helping

Governor Signs the Bill, but SEHP doesn't Get it

The governor signed the SEHP bill (Session Law 2006-264** SB 602) yesterday on the last possible day to sign the legislation.  Great news, right?  Well, maybe.  Looks like SEHP is interpreting the statute in a very odd manner.

SEHP is not reading the new statute correctly

It appears that the lawyers at the SEHP have consulted with the collection agency they use and have decided that their interrpretation of the statute is nothing like mine (or what the law says).  Basically, what SEHP is saying is that while they will reduce the lien for attorney fees, they won't reduce it beyond the 50% of gross cap.

Examples of the WRONG interpretation: 

I think SEHP is not interpreting this correctly because in their version, if the lien is $1 more than the 50% gross cap, then the atty fee deduction does not apply.  I think that SEHP has sort of made this into an "either or" approach, which it is clearly not designed to be.  It seems that the only place they would allow the attorney fee reduction would be if the lien does not exceed the 50% cap.

Example 1 of how they have it wrong

30,000 Settlement
10,000 Attorney fees
250      costs
16,000 SEHP lien
Is the 16,000 Lien > 15k ( 50% of the gross settlement):  YES
THEN:  Reduce lien to 15 k
Example 2 of how they have it Wrong
30,000 Settlement
IS the $3,000 Lien < 15k ( 50% of the gross settlement):  YES
THEN: Reduce lien by atty fees/costs:
Figure %ratio of atty fees plus costs to Settlemet: 10,250 / 30,000 = 34.15 %
THEN:  reduce lien by ratio    $3,000 (lien) x .3416 = $1,024.80  (REDUCTION AMOUNT)
FINAL LIEN AMOUNT:  3,000 - $1,024.80 =  $1,975.20 LIEN
10,000 Attorney fees
250      costs
3,000 SEHP lien
My Analysis of why they are Wrong
I think that this interpretation is completely contrary to what the statute is trying to get to.  I think the "purpose" of the statute was to make sure that the SEHP paid their fair share of the "collection" costs.  It is easy to understand if you think of the Plaintiff's attorney as a "collection agency" for the SEHP.  The Attorney should get "paid" our collection "percentage" which should only be taken off what SEHP actually "receives".  (Of course, the client gets the "collection costs")

This means that SEHP should pay their fair share on what is actually "collected," meaning that they even have to pay on the 50% of the gross.  I'm sure they don't pay their collection agents on the "total claimed lien" but only on the "collected" lien.  We all know that 33.3% of 0 is 0.

Had the statute intended SEHP's interpretation, it would have said that the attorney fees are to be deducted from the total lien amount and then if that reduced amount was greater than 50% of the gross settlement, the lien would be reduced to 50%, and no less.

Therefore, I don't think that SEHP is even following an "alternative" view or interrpretation of the lien statute.  They are making up their own statute where the "reasonable costs of collection" are sometimes paid, and sometimes not paid.  This means that the "reasonable costs of collection" are being paid in varying amounts.

Possible Constitutional Violoation by SEHP
Of course, we are somewhat at their mercy because the statute says that they decide on what is "reasonable" and I suppose they can say that if the lien amount is greater than 50% of the gross, "reasonable" collection fees are always Zero.

I think that we might be able to mount a constitutional challenge to that interpretation.  When the lien was first enacted, we approached SEHP and said, "hey look, can't we look at each case individually and then arrive at an agreement as to what is a 'fair' reimbursement?"  We gave examples of a family where the bread winner is killed, leaving three children and an unemployed widow, and the insurance policy only covers $30,000 of damages and the lien exceeds the coverage.  Under the old statute, SEHP got all the $30,000 and the widow and children got NOTHING.

SEHP said, "Sorry folks, we can't 'bargain' with individual SEHP members because that is unconstitutional.  We have to treat every citizen/member the same.  It's in the NC Conststitution.  We've been sued for that."  So when the new SEHP legislation was passed in one house, SEHP started to "accomodate" by voluntarily accepting the 50% cap, but not reducing for attorney fees.  So in the above example, the SEHP got 15,000, and the widow got $5,000.  And SEHP got their money because the widow paid an attorney to get it for them.  How generous of SEHP, right?  And when I say SEHP, what I really mean is OUR STATE.  SEHP is the State of North Carolina.

Well, sure.  Maybe you'll get sued again.  I think this is a ridiculous argument.  The Attorney General's office "settles" discretionary matters every day, from State Tort Claims to tax deficiencies.  I think this was classic beuracratic whimpiness on the part of SEHP.

Anyone up for a Constitutional Challenge?  I love the smell of "founders intent" in the morning.  Smells like victory.

Chris Nichols 1.800.906.5984

Thanks to Health Plan Law for the positive mention

Fine Discussion!

Thanks to Health Plan for the positive mention of my recent post setting out practical guidelines for using the recent Supreme Court Ruling in Ahlborn to reduce Mediacid liens in personal injury settlements.  Here is what they had to say:

Nonetheless, U.S. Supreme Court has held that these provisions do not support State statutes that claim more than the portion of a Medicaid recipient’s settlement that represents medical expenses. See, Arkansas Department of Health and Human Services v. Ahlborn, 126 S.Ct. 1752 (2006). A fine discussion of the implications of this case appears in the North Carolina Trial Law Blog. Thus far, little guidance has developed from the courts as to the implications of this May 1, 2006 decision, but its taming effect on Medicaid reimbursement demands should be evident in future developments.

Good News, Bad News

I will admit that the only downside is that since is a web site for Health Plan Administrators, they probably like Ahlborn because it means more money for them to subrogate against (ala, ERISA claim for reimbursement).  (Warning:  self congratulation ahead)  Oh well, at least they know good analysis when they read it .  The good news is that the tone of the Health Law Article suggests that they too think that Medicaid liens can be "Draconian" (their words).  Sounds like we may have some health plan administrators out there with some real heart and understanding of what happens to a severly injured Plaintiff who receives nothing from a settlement because they have to "pay back" Medicaid, ERISA, etc. makes for interesting reading too.  If you want to see the challenges of regulatory, statutory, and monetary red tape, check out some of the things these folks have to handle.

-Chris Nichols 1.800.906.5984

NC Living Will Free Download

Living Wills?  I thought you were a personal Injury Attorney?

Ok, I assure you that I am not branching out into a new area of practice.  I receive the occasional inquiry about wills and estates and always refer people on to someone who likes that kind of law.  What I'm talking about here is a living will, and it is something I don't think you need a lawyer to write for you.  Here is a link to find a living will  you can download.  It is courtesy of an organization that I've been a part of since before I was licensed to practice law, the North Carolina Academy of Trial Lawyers.  On the page, you will see links to download a living will and also to download a health care power of attorney.  I suggest you have both.

What is a living will?

If you have turned on the TV in the last, oh, say, decade, you've heard of Terri Schiavo.  She was the woman in Florida that was kept alive in a persistant vegatative state for a very long time.  Epic legal battles were fought over whether to "pull the plug" on her body or not.

I'm not going to get into the politics of that, but the reason for the big fight, which even the President chimed in on, was that Terri did not have a living will.  All a living will does is tell the people that are caring for you what you want done in certain circumstances if you are not conscious and can't make the decision for yourself.  It can appoint someone else to make the decision for you.

A lot of hospitals have their own forms.  I like the one above better.  You will have to get it signed before a notary, which might cost you $3, or you might get it done free at your own bank.

Don't leave home without it

Unless you relish the thought of your loved ones struggling to figure out what to do with your body when you have no brain waves left, fill in the form and keep it in a safe place where a trusted person will know to go to find it.

And given the way things work out, most of the time if you have it, you won't need it. So think of it as a little bit of luck you may have "bought" yourself. 1.800.906.5984

Ahlborn: What does it mean?

Ahlborn an exciting development for Plaintiffs (maybe)

The recent United States Supreme Court decision of Arkansas Department of Human Services v. Ahlborn 547 U.S. ___, 126 S.Ct. 1752 (April 2006) has created an excellent opportunity for plaintiff's lawyers to ensure clients receive a fair share of their settlements in personal injury matters.  Those of us that follow the developments of lien law were excited when this decision was published, and considered it a big "win" for Plaintiffs.  Unfortunately, North Carolina has not immediately followed the very clear guidance of the U.S. Supreme Court. 

My very short summary of Ahlborn

If you want to read the Ahlborn slip opinion, click here.  I'm not going to summarize it much other than this short paragraph.  In Ahlborn, Arkansas Medicaid had a claim against the proceeds of a personal injury settlement.  (NOTE: I'm using fictional numbers numbers to make this easy.)  Let's say Arkansas said that Ahlborn owed $100,000 to repay payments made by Medicaid for injuries caused by a third party's negligence.  Ahlborn had a settlement of $500,000.  Normally, Medicaid would get the full $100,000, right?  Well, the lawyers for Ahlborn said, "Hey wait, we may have gotten $500,000 for our client, but our client had a lot more damages, and this was a compromise settlement, so Medicaid should not, can not, take the full $100,000.  They should only get their fair share."

For several different reasons outlines below, Justice Stevens, writing for the majority, agreed that Medicaid should only get their fair share of the total damages to the Plaintiff. 

In essence, Justice Steven's said, "Medicaid can only get paid from the part of the settlement that represents payments made for medical bills.  Thus, when there is a lump sum settlement, a court can, and should, figure out what portion of the settlement is for medical bills, and what portion is for other damages, like pain and suffering, future medical damages, lost wages, disfigurement, etc."  This is sort of a complicated way of saying that Medicaid must pro-rate with other damages.

An Example of How the Ahlborn analysis should work

So in my fictional version of Ahlborn, here is what would happen:  According to Justice Stevens, Medicaid and the Plaintiff should agree on what the total damages are worth.  (Ok, realistically, in NC, Medicaid will often balk at this part, but we'll get to that later.)  Next you determine what Medicaid's total lien will be.  Then, you determine the percentage that Medicaid's lien represents of the total value of the damages.  Finally, multiply Medicaid's total lien by the percentage, and voila, you have Medicaid's final lien. 

Medicaid and the Plaintiff can't agree? Easy solution says Justice Stevens, have a trial judge figure it out.  I call this process "pro-ration" but the Supreme Court calls it "apportionment."  Ok, I'll use their term, mostly because my spell check just does not like any version of "proration".

Mathematically, using my fictional Ahlborn numbers here is what we get:


$500,000  Settlement

-$166,666  Attorney Fees

-$100,000  Medicaid lien

$233,333 available to client


What is the value of the total damages?

Assume there are the following damages:

$   100,000  Medicaid Lien

$1,500,000  Future medical bills (life care plan)

$   250,000  Past lost wages

$   250,000  Future lost wages

$ 2,100,000  TOTAL Damages  (we're leaving pain and suffering out to make this simple)

What portion of the total damages is Medicaid's "lien"?

$100,000 divided by $2,100,000  =   .047619  (pro-ration percentage)

What should Medicaid receive as part of the final settlement?

$100,000 lien x .047619 (pro-rata share) = $4,761.90

Final Analysis of Lien under Ahlborn:

$500,000  Settlement

-$166,666  Attorney Fees

-$4,761.90  ($100,000 x .47619) Final Medicaid Lien

$328,572.10   available to client

The reasons behind Ahlborn (Statutory analysis)

The reasons behind this interpretation of Medicaid law depend in part of how the Supreme Court interpreted federal statutes that enable the States to collect for Medicaid payments.  The analysis is fairly complicated, but is well summarized in a Petition for Rehearing filed in the NC Supreme Court case of Ezell v. DHHS.  (Since our Supremes adopted the dissenting COA opinion, you really need to read the dissent to make sense of the NCSC decision. Read the COA opinion here.) Ezell involved an issue that should be controlled by Ahlborn, though right now it looks like the N.C. Supreme Court has ignored the ruling in Ahlborn by adopting the dissenting opinion of the N.C. Court of Appeals which was decided pre-Ahlborn and gives no consideration of the analysis and "apportionment" required by Ahlborn.

Here is the summary of Ahlborn from the Petition for Rehearing in Ezell: 

Writing for a unanimous court in Ahlborn, Justice Stevens noted that 42 U.S.C. §1396k requires Medicaid beneficiaries to “assign the State any rights … to payment for medical care from any third party”— specifically excepting rights to payment for lost wages or pain and suffering.  547 U.S. ___, 126 S.Ct. at 1761.  Second, Stevens observed that the language of 42 U.S.C. §1396a(a)(25)(B) requiring state Medicaid programs to seek reimbursement from third parties expressly refers to “the legal liability of third parties … to pay for [medical] care and services available under the [Medicaid] plan.” Ibid. Third, Stevens determined that the rights acquired by state Medicaid programs pursuant to 42 U.S.C. §1396a(a)(25)(H) were only “the rights of [a Medicaid beneficiary] to payment by [a third party] for … health care items or services” —not rights to payment for lost wages, pain and suffering, an inheritance, or anything other than medical expenses.  Ibid.

            Reading these statutory provisions together in context, Justice Stevens concluded that “the federal third-party liability provisions require an assignment of no more than the right to recover that portion of a settlement that represents payments for medical care.”  Ibid., 547 U.S. ___, 126 S.Ct. at 1762. 

Despite the complicated statutory analysis in Ahlborn, the actual application of the decision is fairly simple.  Unfortunately, NC Medicaid (DHHS), via the NC Attorney General's office, is ignoring the opinion.  I am personally aware of at least three cases (four counting Ezell) where DHHS has said, in essence" "that's not what Ahlborn means, pay us our full lien."

DHHS seems to be taking the position that their lien is superior to any other lien (except Medicare) and that their lien is to be paid in full, up to NC's statutory "cap" of 1/3 of the gross settlement. 

Other Issues Ahlborn Raises in NC

Ahlborn also calls into question the constitutionality of the arbitrary 1/3 cap because the cap has absolutely no relationship to the settlement value.  If this is true, "smaller" cases, those with no long term medical costs or future damages, may have to pay more of a small settlement (no 1/3 cap) but those cases with large damages  and future losses will benefit.

Another disturbing aspect of Ahlborn is that is may lead a court to consider future liens by Medicaid.  In other words, in my fictional Ahlborn case above, the State might argue that they should be compensated for medical costs that will be paid.  This is already happening with Medicare set-aside trusts in Worker's Compensation cases. 

Keep reading here for further analysis and hints and tips about using Ahlborn.

Chris Nichols 1.800.906.5984

Bored by the law

My dog, Winston.  About as excited as he ever gets when I'm blogging.

I really do not intend to make the NCTL blog into some sort of law-like "My Space" and I promise we will keep things serious and on point, but I gotta tell you, when I'm reading articles on thrilling topics like "liens and subrogation" it's nice to have a dog photo thrown in from time to time to break things up.  I hope you think so too.

Besides, Winston is my blogging buddy, hanging out with me when I work on the computer. 1.800.906.5984

The Cyberlaw Encyclopedia version 2.0

I found an interesting website that acts as an aggregator of links that pertain to law and technology.  This website is more about actual Intellectual Property Law and Technology Law, and not so much about the use of technology in law.  The sub-catagories provide a pretty simple way to browse article to get the "gist" of a topic.

Link: The Cyberlaw Encyclopedia version 2.0.

Welcome to Alan Gahtan's Cyberlaw Encyclopedia (tm) The I.T., I.P. and Electronic Commerce Legal Portal(tm)

-Chris Nichols 1.800.906.5984