2014 Annual Convention. Advanced Insurance and Negligence Law Topics

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1 2014 Annual Convention Advanced Insurance and Negligence Law Topics Insurance Law Committee/Negligence Law Committee 1.5 General CLE Hours April 30 May 2, 2014 Columbus

2 Contributors Stephen P. Calardo Attorney at Law Cincinnati, Ohio Mr. Calardo received his BA from the University of Cincinnati and his JD from the University of Cincinnati College of Law. He is a leading practitioner of mediation who has successfully mediated thousands of disputes, including claims relating to personal injury, death, employment, construction, medical malpractice, securities, environmental, contract, business disputes, and other civil claims. Mr. Calardo s years of experience and perspective as a mediator, arbitrator, successful trial attorney, and former prosecutor enable him to assist parties in dispute to focus on common sense pathways to settlement. He is the creator and author of the award-winning Cincinnati Bar Association Pre-Suit Mediation Program and served as Chairman of the CBA s Alternative Dispute Resolution Committee, and formerly chaired the CBA Settlement Week Subcommittee. Mr. Calardo has been appointed by federal and state judges to mediate a wide variety of cases. He mediates disputes for attorneys and their clients, private businesses, the U.S. Postal Service, the Financial Industry Regulatory Authority, and government agencies. Mr. Calardo serves as a facilitator of public policy disputes including the Cincinnati Police-Community Relations Collaborative in the aftermath of allegations of racial profiling and the incidents of civil unrest in the streets of Cincinnati. He received his mediation training at Harvard Law School, and has conducted mediation training at Harvard Law School. For additional information, please visit Jason R. Deschler Mazanec Raskin & Ryder Co. LPA Columbus, Ohio Mr. Deschler received his BS and BA from The Ohio State University and his JD from Capital University Law School. His professional memberships include the American Bar Association, Ohio State Bar Association, and Columbus Bar Association. Mr. Deschler started as a law clerk with his firm in 2004, and became an associate in He has represented a wide variety of clients, including defending insureds on behalf of insurance companies. Mr. Deschler s primary focus is civil defense litigation. Jason has experience defending clients in a number of areas of law, including construction litigation, general, and sub-contractors; complex litigation; civil rights defense, including claims under 42 U.S.C. 1983; defense of political subdivisions and their employees, Chapter 2744; professional liability, focusing on attorney malpractice; mental health institutions; school boards and school employees; school teacher appeals under Ohio Rev. Code ; administrative appeals under Ohio Rev. Code Chapter 2506; EEOC and OCRC charges; employment discrimination claims; real estate agents and brokers; insurance agents; claims involving premises liability; and Employee Polygraph Protection Act claims. For additional information, please visit Michael S. Loughry Mazanec Raskin & Ryder Co. LPA Columbus, Ohio Mr. Loughry received his BA from the University of Texas and his JD from Capital University Law School. His professional memberships include the Columbus Bar Association (Certified Grievance Committee), Ohio State Bar Association, Federal Bar Association, and American Bar Association. Mr. Loughry has an active practice representing political subdivisions throughout the state of Ohio. He has significant experience defending police officers in excessive force and false arrest claims. Mr. Loughry has represented numerous municipalities against claims that they had taken property with providing just compensation. He has been one of the primary defense attorneys for personal injury claims made against a regional transit authority. Mr. Loughry also represents professionals in a wide range of disciplines in professional negligence claims and in administrative actions brought by state regulatory boards. He also provides pro bono legal counsel for a non-profit arts organization. Before his legal career, Mr. Loughry worked in the geology department of an Ohio based oil and gas company and in the music business in Texas. For additional information, please visit

3 Zachary B. Pyers Reminger Co. LPA Columbus, Ohio Mr. Pyers s legal practice primarily focuses on civil litigation, including complex litigation, corporate and commercial litigation, employment litigation, professional liability, product liability, and general liability. He has represented numerous professions in professional liability claims, including doctors, nurses, attorneys, accountants, architects, engineers, surveyors, builders, insurance agents, and investment advisors. Mr. Pyers has litigated cases in state and federal court and has briefed and argued cases on appeal. He also represents clients before administrative bodies and arbitration panels, including Equal Employment Opportunity Commission, Ohio Civil Rights Commission, Public Utilities Commission of Ohio, Ohio Bureau of Workers Compensation, Ohio Department of Insurance, Ohio Department of Commerce, Ohio Department of Liquor Control, and Financial Industry Regulating Authority. For additional information, please visit

4 Chapter 1: Deposition Do s and Don ts Zachary B. Pyers Reminger Co. LPA Columbus, Ohio Table of Contents Why Take the Deposition... 1 The Deposition Notice... 1 A. For an individual B. For an entity... 1 C. Scope of discovery Taking the Deposition... 2 A. Questioning should proceed as at trial B. Set-Up and commitments C. Exhibits D. Paint the witness in a corner E. Concluding the deposition Objections to Questions... 3 A. Competence, relevance, materiality, etc B. Objections as to questioning, form of questions, oath or affirmation, etc C. Objections must be concise, non-argumentative, and non-suggestive D. How to respond to coaching Deposition Do's and Don'ts i

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6 Chapter 1: Deposition Do s and Don ts Zachary B. Pyers Reminger Co. LPA Columbus, Ohio Why Take the Deposition Depositions are useful to discover and lock in the testimony of a party or independent witness. It allows the attorney an opportunity to ask follow-up questions. It can serve as a basis to set up testimony for motion practice or impeachment at trial. Before beginning a deposition, you must identify your goals and then conduct the deposition accordingly. The Deposition Notice A. For an individual. Rule 30(b)(1): A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify the person of a particular class or group to which the person belongs. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice. B. For an entity. Rule 30(b)(6): A party may in the party s notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the maters on which the person will testify. A subpoena shall advise a nonparty organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules. Deposition Do's and Don'ts 1.1

7 C. Scope of discovery. Rule 26(b)(1) In General. Parties may obtain discovery regarding any matter, not privileged which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, electronically stored information, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Taking the Deposition A. Questioning should proceed as at trial. Rule 30(c), Ohio Civ. P.: Examination and cross-examination of witnesses may proceed as permitted at the trial.... All objections made at the time of the examination to the qualifications of the officer taking the deposition, to the manner of taking it, to the evidence presented, to the conduct of any party, or to any other objection of the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. Rule 30(c), Fed. R. Civ. P.: Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of Federal Rules of Evidence except Rules 103 and 615. All objections made at time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. B. Set-Up and commitments. Make sure it is clear on the record that the witness understands the deposition process and his/her rights and obligations. The primary purpose of the set-up and commitments is not to ensure fair treatment of the witness, but to discourage attempts at trial to avoid the effect of the deposition answers. 1. Have you ever been deposed before? 2. The deposition is being recorded. Therefore, it is important to answer verbally with a yes or a no, rather than shaking or nodding your head or answering uh huh. 3. I may ask a question that I don t state very well, or that for some other reason you don t understand. If you don t understand my question for any reason, let me know and I will try to clarify my question or ask you another question. 4. If you need a break, please let me know. The only time I will ask you to wait to take a break is when there is a question pending. In that situation, I ask that you provide your answer to the question before taking the break. Does that sound reasonable? 5. Are you taking any medications or drugs of any kind that might make it difficult for you to understand questions and provide answers? 6. You understand that you are under oath? 1.2 Advanced Insurance and Negligence Law

8 C. Exhibits. Mark and copy exhibits before deposition to pass out to all counsel. Use photographs and written documents as exhibits that witness can identify. They can be used to keep a witness from wandering from the facts and lets the witness know you know the facts, and answers, before asking the question. D. Paint the witness in a corner. 1. Information-gathering. 2. Listen and follow-up. 3. Exhaust. 4. Recapitulate and summarize. 5. Gain admissions. 6. Lead and test theories. 7. Don t ask one question too many. E. Concluding the deposition. Before you conclude, take a recess and review your outline for any areas you may have missed. Consider saving any offensive questions for the end of the deposition. For example, asking a witness about criminal convictions related to truthfulness may creative a defensive response from the witness. Alienating the witness early will reduce your ability to elicit information. Objections to Questions A. Competence, relevance, materiality, etc. Rule 32(D)(III)(a): Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of his deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time. B. Objections as to questioning, form of questions, oath or affirmation, etc. Rule 32(D)(III)(b): Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition. 1. If the defect could be cured, you better object. 2. Rule 32(B): Objections to Admissibility. Subject to the provisions of subdivision (D)(3) of this rule, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of evidence if the witness were then present and testifying. C. Objections must be concise, non-argumentative, and non-suggestive. Rule 30(d)(1), Fed. R. Civ. P.: Any objection during a deposition must be stated concisely and in a non-argumentative and non-suggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under Rule 30(d)(4). Deposition Do's and Don'ts 1.3

9 D. How to respond to coaching. 1. Ignore: Ask the court reporter to re-read the question. 2. Be proactive and make a record. a. Bring relevant cases, holding that counsel cannot confer, coach, etc., with the relevant portions underlined. b. When counsel first does so, make that document an exhibit, and, on the record, politely explain the rules. c. Repeat a few times, as appropriate. d. Stay calm, focused, civil, and professional. e. Remember, if you decided to take it to the judge, he or she will be reading this exchange with opposing counsel. 1.4 Advanced Insurance and Negligence Law

10 Stephen P. Calardo Attorney at Law Cincinnati, Ohio Chapter 2: Top 10 List for Effective Mediation Participation Table of Contents Top 10 List for Effective Mediation Participation PowerPoint Presentation... 1 Top 10 List for Effective Mediation i

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12 Top 10 List for Effective Mediation Participation PowerPoint Presentation Top 10 List for Effective Mediation 2.1

13 2.2 Advanced Insurance and Negligence Law Topics

14 Top 10 List for Effective Mediation 2.3

15 2.4 Advanced Insurance and Negligence Law Topics

16 Top 10 List for Effective Mediation 2.5

17 2.6 Advanced Insurance and Negligence Law Topics

18 Chapter 3: Reaffirming Robinson v. Bates and the Admissibility of Insurance Write-Offs Michael S. Loughry Jason R. Deschler Mazanec Raskin & Ryder Co. LPA Columbus, Ohio Table of Contents Collateral Source Rule... 1 Ohio Rev. Code Robinson v. Bates, 112 Ohio St. 3d 17, 2006-Ohio Ohio Rev. Code Jaques v. Manton, 125 Ohio St. 3d 342, 2010-Ohio Moretz v. Muakkasa, 137 Ohio St. 3d 171, 2013-Ohio University Hospital v. Campbell, 1 st Dist. Hamilton No. C110285, 2012-Ohio Reaffirming Robinson v. Bates i

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20 Chapter 3: Reaffirming Robinson v. Bates and the Admissibility of Insurance Write-Offs Michael S. Loughry Jason R. Deschler Mazanec Raskin & Ryder Co. LPA Columbus, Ohio Collateral Source Rule In the beginning, there was the Collateral Source Rule, first recognized in Ohio in Pryor v. Webber, 23 Ohio St.2d 104 (1970). In Pryor, the Ohio Supreme Court reiterated the basic tenet that in a tort action, the measure of damages is that which will compensate and make the plaintiff whole. Id. at paragraph one of the syllabus. The Pryor Court also held that the collateral source rule is an exception to the general rule of compensatory damages in a tort action, and evidence of compensation from collateral sources is not admissible to diminish the damages for which a tort-feasor must pay for his negligent act. Id. at paragraph two of the syllabus (emphasis added). As a matter of public policy, the rule prevents the jury from learning about a plaintiff s income from a source other than the tortfeasor so that a tortfeasor is not given an advantage from third-party payments to the plaintiff. Id. at 108. As it pertains to this presentation, the collateral source rule was generally applied to prohibit the introduction of evidence regarding insurance payments and adjustments that the injured party in a tort action may have received from his or her own health insurance. Ohio Rev. Code In an action for damages arising from personal injury or wrongful death, a written bill or statement, or any relevant portion thereof, itemized by date, type of service rendered, and charge, shall, if otherwise admissible, be prima-facie evidence of the reasonableness of any charges and fees stated therein for medication and prosthetic devices furnished, or medical, dental, hospital, and funeral services rendered by the person, firm, or corporation issuing such bill or statement, provided, that such bill or statement shall be prima-facie evidence of reasonableness only if the party offering it delivers a copy of it, or the relevant portion thereof, to the attorney of record for each adverse party not less than five days before trial. Reaffirming Robinson v. Bates 3.1

21 To the extent that a plaintiff s damages in a personal injury or wrongful death case consist of the costs of medical care, the plaintiff s medical bills are prima facie evidence of the reasonableness of the amount of the charges. Compensation for these charges make up some of what is required to make the Plaintiff whole. Robinson v. Bates, 112 Ohio St. 3d 17, 2006-Ohio-6362 Carolyn Robinson lived in a residence she rented from Helen Gist Bates. On April 21, 2001, Ms. Robinson fell in her driveway a few days after Ms. Bates grandson had some repair work done to a retaining wall on the side of the driveway. Ms. Robinson filed a personal injury suit against Ms. Bates. At trial, Ms. Robinson proffered medical bills in the amount of $1,919.00, and she also stipulated that her medical insurer had negotiated $1, as payment in full. The Hamilton County Common Pleas Court would not allow her to present the full amount of her medical bills into evidence, but rather limited her to presenting only the negotiated amount. The Court of Appeals reversed and remanded. After conducting an extensive survey on how other states addressed this issue, the Court of Appeals held Ohio s Collateral Source Rule would prohibit evidence of insurance write-offs and that Ms. Robinson should have been allowed to present evidence of the entire amount of her medical bills. On appeal to the Ohio Supreme Court, the Court reviewed the Collateral Source Rule and Ohio Rev. Code The Court stated that pursuant to the statute, the Court of Appeals was correct to rule that the full amount of the bills should have been admitted. The Court then stated that the Court of Appeals misapplied the Collateral Source Rule. Specifically, the Court stated that the Collateral Source Rule does not apply to write-offs because write-offs are not actually a benefit paid. Rather, a write-off is an amount by which a medical provider agrees to reduce its bill pursuant to the provider s agreement with a specific insurance company, but no one actually pays that amount. In the interest of admitting all relevant evidence, the Court held that both the total amount of the medical bills and the amount actually accepted by the provider as full payment could be submitted to the jury for use in its deliberations on the reasonable value of medical care. Ohio Rev. Code In a footnote, the Robinson Court also discussed briefly Ohio Rev. Code , a collateral benefits statute, but noted that it did not apply to this case because it did not become effective until April 7, 2005, almost four years after Ms. Robinson was injured. As the Court noted, the purpose of this statute was to set forth Ohio s statement of law on the collateral-source rule. The statute provides, in pertinent part, as follows: (A) In any tort action, the defendant may introduce evidence of any amount payable as a benefit to the plaintiff as a result of the damages that result from an injury, death, or loss to person or property that is the subject of the claim upon which the action is based, except if the source of collateral benefits has a mandatory selfeffectuating federal right of subrogation, a contractual right of subrogation, or a statutory right of subrogation or if the source pays the plaintiff a benefit that is in the form of a life insurance payment or a disability payment. However, evidence of the life insurance payment or disability payment may be introduced if the plaintiff s employer paid for the life insurance or disability policy, and the employer is a defendant in the tort action. 3.2 Advanced Insurance and Negligence Law

22 (B) If the defendant elects to introduce evidence described in division (A) of this section, the plaintiff may introduce evidence of any amount that the plaintiff has paid or contributed to secure the plaintiff s right to receive the benefits of which the defendant has introduced evidence. (C) A source of collateral benefits of which evidence is introduced pursuant to division (A) of this section shall not recover any amount against the plaintiff nor shall it be subrogated to the rights of the plaintiff against a defendant. Jaques v. Manton, 125 Ohio St. 3d 342, 2010-Ohio-1838 Richard Jaques sued Patricia Manton for injuries suffered in an automobile accident. Jaques had medical bills totaling $21, After write-offs, his medical providers accepted only $ as payment in full for their services. The Lucas County Common Pleas Court granted Jaques motion to preclude Manton from presenting evidence of the write-offs to the jury, and the court of appeals affirmed this ruling. In Jaques, the Ohio Supreme Court was asked to determine what effect, if any, Ohio Rev. Code had on its holding in Robinson v. Bates. The Court determined that the statute did not address evidence of insurance write-offs by medical providers, and therefore the holding in Robinson v. Bates still applied. Moretz v. Muakkasa, 137 Ohio St. 3d 171, 2013-Ohio-4656 Larry Moretz filed a medical malpractice suit against Dr. Kamel Muakkassa. Mr. Moretz alleged damages included medical bills in the amount of $125, The Summit County Common Pleas Court refused to allow Dr. Muakkassa to introduce evidence of write-offs. The Ninth District Court of Appeals affirmed, stating that Ohio Rev. Code , which allows the admission of medical bills into evidence without expert testimony, applies to plaintiffs but not defendants. In Moretz, the Ohio Supreme Court faced the question of whether expert testimony was required to establish foundation for admission of write-off evidence. The Court held that expert testimony is not necessary. Regarding Ohio Rev. Code , the Court held that write-offs reflected in medical bills and statements, when timely submitted, are admissible. There is no provision in the statute that exempts write-offs, and the statute allows any party to offer bills into evidence, not just a plaintiff. Accordingly, if a defendant timely submits medical bills that reflect write-offs, the bills may be submitted to the jury as prima-facie evidence of the reasonable value of the medical care and services provided. University Hospital v. Campbell, 1 st Dist. Hamilton No. C110285, 2012-Ohio Donald Campbell was treated at University Hospital in At that time, Mr. Campbell did not have health insurance. The hospital filed suit against Mr. Campbell because he did not pay his bill. Campbell defended the suit by requesting information in discovery regarding the hospital s contractual arrangements with health insurers, with the intent to present evidence to the jury regarding the amounts that the hospital would have written off his bill had he been insured. The hospital refused to produce this information and the trial court denied Campbell s motion to compel. The trial court eventually granted the hospital s motion for summary judgment. The hospital presented evidence demonstrating the services provided and the value of the services. Reaffirming Robinson v. Bates 3.3

23 Campbell did not dispute that he received the services and presented no evidence demonstrative that the charges were excessive. Instead, Campbell argued that under Robinson v. Bates, the court should consider the hospital s practice of granting write-offs to insured patients. The trial court refused, and the court of appeal affirmed, holding that the rule in Robinson v. Bates concerned the effect of a write-off in a tort action, but it did not create a right of reduction in a collections case where no write-off had occurred. 3.4 Advanced Insurance and Negligence Law

112 Ohio St.3d 17, 2006 Ohio 6362 (December 20, 2006).

112 Ohio St.3d 17, 2006 Ohio 6362 (December 20, 2006). I. ROBINSON V.BATES, 112 Ohio St.3d 17, 2006 Ohio 6362 (December 20, 2006). A. Landlord-tenant case In Hamilton County, Ohio, Plaintiff tenant sued her landlord for personal injuries caused when she broke

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