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June 2007
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August 2007

Could prisoners escape ERISA claims for subrogation?

The WorkPlaceProf Blog has posted an interesting case which has some very minor posisbilities of being a "nose under the tent" in NC to avoid ERISA liens.  Basically, the case cited from the US Supreme Court has allowed a state to trump ERISA in order to "take" money away from a retirement plan for a prisoner to pay for his "stay" in prison. 

My thought is that if a State can usurp ERISA, and the SCOTUS allows that, why would the NC Anti-subrogation provision promulgated by our Commissioner of Insurance not do the same.  Yeah, I know it is the whole "federal preemption argument" but if we keep seeing "holes" created in ERISA, maybe one will get big enough one of these days.    I know this is a stretch.  A big stretch.

From WorkPlaceProf Blog:

Ya win some, ya lose some if you're the ERISA bar.  In this instance, whereas the Supreme Court decided to hear LaRue v. DeWolff, Boberg & Associates , 06-856, it has denied review in the ERISA inalienability case of Cox v. DaimlerChrysler (06-273).   

In Cox, SCOTUSBlog commented that the issue was whether:

it violates ERISA for a state to arrange to take 90 percent of a prison inmate's pension benefits to help defray the costs of imprisonment. The Solicitor General, asked by the Court for the government's views, had urged the Court to bypass the appeal by Michigan's state attorney general, Mike Cox.

The whole inalienability question within ERISA in the criminal context  will continue to percolate through the Courts. For example, see this post on United States v. Novak, 04-55838 (9th Cir. Feb. 22, 2007), in which the en banc Ninth Circuit found in a 10-5 decision that the Mandatory Victim Restitution Act (MVRA) trumps ERISA's anti-alienation provisions that normally would keep retirement benefits from being disturbed by others.


Chris Nichols 1.800.906.5984

Great video on the myths of "Tort Reform": Mr. Fancy Pants

This is a great YouTube video on the issue of "Tort Reform."

The video does a great job showing how giant corporations have twisted and distorted the truth about law suits in America simply to poison jury pools.  They do this so they can continue to deny responsiblity for wrong doing, and basically "save a buck" at the expense of injured people who have done nothing to cause their own injuries.

It's about 8 minutes long and worth the watch.



Chris Nichols 1.800.906.5984

A Conservative Christian Physician against Tort-Reform

To often, politics of the right and the left interfere with the stark reality of tort reform.  In the past decade or so, conservatives have used "tort-reform" as a political "wedge issue" and have spent multi-millions of dollars to turn the public, and juries, against all Plaintiffs.

The article below was written by a self-described conservative Christian physician who deeply questions the politics of taking away justice from injured people in the name of politics and for the goal of profitting "big business."

This shows me that people are seeing that fairness and responsiblity are truly non-partisan issues, and that lawsuits, in and of themselves, are not "all bad."  In fact, lawyers and lawsuits have often been all that stands between the public and harm.

Remember the Little Guy 
by Steven Hotze, M.D.

Shouldn't companies and individuals who cause you harm be responsible for the damages they inflict?
Pinto_2 You are probably aware of the lawsuits in the 1970s against Ford Motor Company and its Pinto automobile. Because of poor design, rear end crashes often caused the Pintos gasoline tank to explode into flames. Over 500 drivers lost their lives and thousands more were severely burned. Ford knew about this problem and that it would only cost $11 per car to repair but determined it was cheaper to pay the lawsuit settlements than recall the vehicles. Incredibly, Ford put their profits above the safety of their customers.
Because plaintiff attorneys were willing to file lawsuits on behalf of these injured individuals and families on a contingency basis and fight the multi-billion dollar Ford Motor Company, Ford paid hundreds of millions of dollars in judgments. Ford was also criminally charged with negligent homicide for having knowingly sold unsafe cars.
These lawsuits against Ford were based on product liability law which holds businesses responsible for any injuries caused by their products. The Ford lawsuits and resulting settlements sent a strong signal to the automobile industry. Safer cars have been the result.
Over the past decade, the Republicans in the Texas Legislature have passed a series of bills which have limited the liability of large corporations when they are found by a jury to have caused injury to their employees or their customers. This has me concerned and it should have you concerned as well.
Who wouldnt want limited liability for their actions? This is especially true of some large corporations which place their financial interests above the well being of their employees and customers. 
Under current
Texas law, it is hard to imagine that Ford Motor Company would have been required to pay out such a large amount of money in judgments as it did at that time.

Texas_cap Tort reform has dramatically limited the liability of businesses and individuals in Texas. The Texas Legislature has set limits on the amount that a business or individual can be required to pay in judgment to an injured party. No one likes the idea of frivolous lawsuits, but most individuals seem to agree that a remedy should be paid to an injured party commensurate with the damage.
Who does this current law benefit? It benefits the large corporations and the well financed who have deep pockets and the wherewithal to hire a bevy of defense attorneys.  Their financial risk for shoddy workmanship and unsafe products has been dramatically reduced.
What about the small business owner or the individual with modest means?  How will they afford the assistance of a lawyer to help them be fairly compensated for their losses?
As a physician and conservative, I have a healthy distrust for big government and big business. The conservative position requires accountability for actions. It appears to me that the pendulum for tort reform has swung too far in favor of big business.

Its time to remember the little guy.

by Steven Hotze, M.D.


Chris Nichols 1.800.906.5984

How NOT to avoid Jury Duty

This just in from

Every once in a while someone goes a little too far in trying to avoid jury service.  Looks like this guy went overboard in his attempt to avoid service on a grand jury, which amittedly, can take a lot of time.

I think the Judge did the right thing here.  Jury duty is one of the very few real things we can do to actively participate in our democracy.

BARNSTABLE, Massachusetts (AP) -- A Cape Cod man who claimed he was homophobic, racist and a habitual liar to avoid jury duty earned an angry rebuke from a judge on Monday, who referred the case to prosecutors for possible charges.


Daniel Ellis' excuses to try to get out of jury duty didn't sit well with the judge.

"In 32 years of service in courtrooms, as a prosecutor, as a defense attorney and now as a judge, I have quite frankly never confronted such a brazen situation of an individual attempting to avoid juror service," Barnstable Superior Court Judge Gary Nickerson told Daniel Ellis, according to a preliminary court transcript of the exchange.

Ellis, of Falmouth, had been called to court with about 60 other potential jurors for possible service on a 23-member grand jury.

On a questionnaire that all potential jurors fill out, Ellis wrote that he didn't like homosexuals and blacks. He then echoed those sentiments in an interview with Nickerson.

"You say on your form that you're not a fan of homosexuals," Nickerson said.

"That I'm a racist," Ellis interrupted.

"I'm frequently found to be a liar, too. I can't really help it," Ellis added.

"I'm sorry?" Nickerson said.

"I said I'm frequently found to be a liar," Ellis replied.

"So, are you lying to me now?" Nickerson asked.

"Well, I don't know. I might be," was the response.

Ellis then admitted he really didn't want to serve on a jury.

"I have the distinct impression that you're intentionally trying to avoid jury service," Nickerson said.

"That's true," Ellis answered.

Nickerson ordered Ellis taken into custody. He was released later Monday morning.

Ellis could face perjury and other charges.

Chris Nichols 1.800.906.5984