North Carolina Court Finds Employer's Negligence to Be Superseding, Sole Proximate Cause of Asbestos Plaintiff's InjuriesFebruary 7, 2018 | Robert Chandler
Plaintiff appealed a jury verdict in the District Court for the Western District of North Carolina in favor of an asbestos product vendor. Plaintiff claimed that the verdict form, which included a series of questions as to each defendant, caused the jury to render a legally inconsistent verdict and requested partial entry of judgment in his favor or a new trial. The 4th Circuit U.S. Court of Appeals affirmed the judgment.
Plaintiff Erik Ross Phillips alleged that he contracted mesothelioma from exposure to asbestos-containing brake linings used in a machine at the facilities of his employer, Champion International Paper Company. The brake linings were manufactured by Reddaway Manufacturing Company and sold to International Paper by Pneumo Abex, LLC. Plaintiff filed suit against Abex on a negligent failure to warn theory.
At trial Abex argued that even if it was negligent, the intervening negligence of Plaintiff’s employer was the sole proximate cause of Plaintiff’s injury. Under North Carolina law, where both defendant and a third party are negligent, but the third party’s negligence is the sole proximate cause of the plaintiff’s injury, plaintiff cannot recover from the defendant.
The jury was submitted questions on the verdict form asking them first to determine, for each defendant, whether plaintiff’s injury was proximately caused by any negligence of the defendant. If the answer was “Yes,” the jury was next asked whether any negligence on the part of a third party served to be a superseding or intervening cause of the injury suffered by defendant.
The jury found initially that Abex’s negligence was the sole proximate cause of plaintiff’s injury, but next found that the negligence of a third party was a superseding or intervening cause of the injury suffered by plaintiff. Based upon these answers, the Court entered judgment on behalf of Abex, taking the jury’s answers to the verdict form questions to mean that the jury believed that the negligence of a third party was an intervening cause of plaintiff’s injuries which became the sole proximate cause. Plaintiff then appealed.
The Verdict Form Did Not Present an Inconsistent Verdict Under North Carolina Law
On appeal Phillips argued that the jury’s answer to the verdict form questions rendered a legally inconsistent verdict. Because the jury found both that Abex’s negligence was the proximate cause of plaintiff’s injury in answer to the verdict form first question, and that a third party’s negligence was the cause in the answer to the second, the verdict was inconsistent since both could not legally be the proximate cause of plaintiff’s injuries. The Court disagreed.
The Appellate Court pointed to North Carolina law, indicating that to insulate the negligence of a party, the intervening negligence of a third party must break the sequence or causal connection between the negligence of the first party and the plaintiff’s injury so as to exclude the negligence of the first party as a proximate cause of the injury. “It must be an independent force which entirely supersedes the original action and renders its effect in the chain of causation remote.” The Court noted that, under the state law, although there may be more than one proximate cause, a new and entirely independent source of negligence, breaking the sequence of events between the first source of negligence and the injury, will insulate the first source of negligence from liability.
The District Court treated the intervening negligence of plaintiff’s employer as an affirmative defense – the burden of proof for proving third party negligence belonged to Abex – and ruled that, even if the jury found negligence on the part of Abex, the intervening negligence of plaintiff’s employer would act to relieve Abex of liability. The Court found that the jury was properly instructed on these issues, and, subsequently, the jury’s findings were in accordance with North Carolina law. The second finding by the jury, that the intervening negligence of plaintiff’s employer was the cause of plaintiff’s injury, was a new proximate cause which extinguished the proximate cause finding by the jury against Abex. Accordingly, Phillips’ appeal was denied.
When making determinations regarding whether proximate cause exists, parties will want to consider whether a superseding or intervening cause for a claimant’s injury is a defense to claims. Even where a defendant’s conduct may be a source of negligence, the negligence may not be the proximate cause of the claimed injury.
Serving judicial documents on individuals and companies located outside the United States can be a time-consuming and expensive process. First, you have to figure out if the person or entity to be served is located in a country covered by the Convention on the Service Abroad of Judicialand Extrajudicial Documents in Civil and Commercial Matters (a.k.a. the
“Hague Convention”) or another international service treaty. Then, you have to determine whether that country opposes certain Articles of the Convention or other applicable service treaties. After all of that, you still have to jump through the country-specific hoops to effectuate proper service.
But on May 22, 2017, the United States Supreme Court provided a definitive answer to one question over which there has been a long-standing disagreement. Specifically, the Court resolved the split among courts as to whether the Convention permits service by mail.
Until now, some courts, like those in the Fifth and Eighth Circuits and in Texas, had held that the Convention does not permit service by mail. See Nuovo Pignone v. Storman Asia M/V, 310 F.3d 374 (5th Cir. 2002); Bankston v. Toyota Motor Corp., 889 F.2d. 172, 173-74 (8th Cir. 1989); Velasco v. Ayala, 312 S.W.3d 783 (Tex. Ct. App. 2009). In contrast, courts in the Second, Fourth and Ninth Circuits and in California had concluded that the Convention allows service by mail. See Ackerman v. Levine, 788 F.2d 830 (2nd Cir. 1986); Koehler v. Dodwell, 152 F.3d 304 (4th Cir. 1998); Brockmeyer v. May, 383 F.3d 798 (9th Cir. 2004); Shoel Kako v.Superior Court, 33 Cal.App.3d 808 (Cal. App. 1973).
In Water Splash, Inc. v. Menon, 2017 LEXIS 3212, the Supreme Court unanimously sided with those courts which have allowed service of process by mail. Specifically, the Court held that the Convention permits service by mail if: (a) the receiving country has not objected to service by mail; and (b) service by mail is authorized under otherwise-applicable law.
At issue in Water Splash was the text of Article 10 of the Convention. The English version states:
“Provided the State of destination does not object, the present Convention shall not interfere with –
(a) The freedom to send judicial documents, by postal channels, directly to persons abroad,
(b) The freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,
(c) The freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.”
(Emphasis added).The dispute in Water Splash and the other cases in which parties contested service by mail under the Convention centered around the use of the word “send” in Article 10(a) compared to the use of the phrase “to effect service” in Articles 10(b) and 10(c).
To reach its unanimous decision in Water Splash, the Court looked at the text of the Convention, the structure of the Convention, and extratextual sources. The Court emphasized that “the scope of the Convention is limited to service of documents” and that in fact, “[e]ven the Convention’s full title [Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters] reflects that the Convention concerns ‘Service Abroad.’”
Because the entire framework of the Convention concerns service of documents, according to the Court, “it would be quite strange if Article 10(a) – apparently alone among the Convention’s provisions – concerned something other than service of documents.” Thus, for “Article 10(a) to do any work, it must pertain to sending documents for purposes of service.”(Emphasis in original).
The defendant futilely tried to counter that logic by arguing that Article 10(a) applies to “post answer judicial documents” but does not apply to service of process documents. But the Court rejected that argument, because “[i]f the drafters wished to limit Article 10(a) to a particular subset of documents, they presumably would have said so.” Plus, Article 10(a) uses the same phrase “judicial documents” as used in Articles 10(b) and 10(c). Therefore, “the notion that Article 10(a) governs a different set of documents than 10(b) or 10(c) is hard to fathom.”
The Court even relied on the French version of the Convention to support the conclusion that the Convention permits service by mail. The Court noted that the “French version of the Convention is ‘equally authentic’ to the English version.” And the French counterpart to the word “send” in Article 10(a) is “addresser” which “has been consistently interpreted as meaning service or notice.”
Finally, the Court looked at the drafting history of the convention, the Executive Branch’s interpretation of the Convention and views of the other parties to the Convention. All of those extratextual sources supported the Court’s determination that the Convention allows service by mail.
Although the Convention allows service by mail, that “does not mean that the Convention affirmatively authorizes service by mail.” Rather, Article 10(a) “simply provides that, as long as the receiving state does not object, the Convention does not ‘interfere with … the freedom’ to serve documents through postal channels
As the Court noted, some signatory countries (the Czech Republic, Bulgaria, Hungary, Kuwait and Turkey among them) have objected to all or parts of the service methods mentioned in Article 10. In those countries, service by mail is not acceptable under the Convention. For a complete list of countries that have opposed all or some of Article 10 (and other Articles of the Convention), see the “Table Reflecting Applicability of Articles 8(2), 10(a)(b) and (c), 15(2) and 16(3) of the Hague Service Convention” (December 2015) here.
The decision in Water Splash may make serving judicial documents in foreign jurisdictions which have not objected to service by mail easier. But parties will still need to analyze the specific service methods allowed by the country in which a person or entity is to be served. Plus, service by mail must be an appropriate means of service under the law of the originating state. If the receiving country has not objected to service by mail and service by mail is authorized under the applicable state law, then under Water Splash, service by mail is permissible. So, check your mail if you are located in or have company facilities in countries which allow service by mail. You may have just been validly served.
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Court Muzzles Counsel: Says Defendants Cannot Ask Plaintiffs if Their Attorneys Referred Them to Treating PhysiciansApril 27, 2017
Defense lawyers routinely ask personal injury plaintiffs how they came to be treated by their doctors. But defense lawyers in Florida will no longer be allowed to ask plaintiffs if their lawyers referred them to physicians for treatment even if those attorneys repeatedly refer their clients to the same doctors. In Worley v. Cent. Fla. YMCA, 2017 Fla. LEXIS 812 April 13, 2017), the Florida Supreme Court held that the attorney-client privilege protects a party from being required to disclose if her attorney referred her to a doctor for treatment. In a 4-3 ruling, the Court held that asking whether a lawyer referred a client to a doctor “implicates a confidential communication between the attorney and the client.”
In Worley, the plaintiff fell in the YMCA parking lot and injured her right knee. Because she claimed she did not have insurance, she did not see a specialist but instead retained attorneys and then sought treatment from specific orthopedic and anesthesia practices. During discovery, the YMCA “repeatedly attempted to discover the relationship” between Worley’s law firm and her treating physicians, because the YMCA suspected there was a ”cozy agreement” between the firm and the physicians.
As part of the attempts to discover whether the attorneys referred the plaintiff to the treating physicians, the YMCA asked the plaintiff in her first deposition if her attorneys had referred her to the doctors. The plaintiff’s attorneys objected claiming that the information was protected by the attorney-client privilege. In a second deposition, the YMCA asked “how [plaintiff] was referred to her doctor.” Again, plaintiff’s counsel objected to the question.
The Worley majority acknowledged “[t]hat the plaintiff was treated by a particular doctor is an underlying fact.” The majority also agreed “[t]hat the plaintiff received a referral to see a particular doctor is also an underlying fact.” Nonetheless, the court held that “whether the plaintiff’s attorney requested that the client see a certain doctor requires the plaintiff to disclose a part of a communication that was held between the plaintiff and the attorney.”
But the majority ignored the requirement that to be privileged, a communication between a lawyer and a client must be “in furtherance of the rendition of legal services to the client.” § 90.502(1)(c) Fla. Stat. As discussed by the three dissenting justices, “[a] lawyer’s referral of a client to a treating medical provider is for the purpose of the client’s medical care, not in furtherance of legal services.” Thus, “communications that do not involve legal advice” should not be protected by the attorney-client privilege. The dissent thus concluded that “if a communication is a recommendation of a physician from whom someone should seek medical treatment the referral does not constitute protected legal advice.”
To make matters worse, the majority seems to have restricted broader inquiries into relationships between plaintiffs’ firms and treating doctors. Before addressing whether the attorney-client privilege barred the specific question of whether the plaintiff’s attorneys referred her to her doctors, the majority considered “whether the financial relationship between a plaintiff’s law firm and the plaintiff’s treating physician [was] discoverable.” The majority stated that the relationship was not discoverable because the law firm was “not a party to the litigation” and treating physicians are not hired for the purpose of the litigation.
The majority did indicate that defendants could inquire whether the doctor provided medical care to the specific plaintiff pursuant to a “Letter of Protection,” to establish bias on the part of the treating doctors. (Letters of Protection are generally used only when patients lack insurance or adequate insurance to guarantee payment.) But this narrow limitation ignores whether the law firm and the treating physicians have ongoing financial relationships. And the majority decision would seemingly prevent defendants from discovering any referral relationship if the plaintiff has sufficient medical insurance.
As explained by the dissent, “[i]f a law firm routinely refers clients to the medical provider…the more it is likely that the witness has a vested interest in that financially beneficial relationship continuing.”
While the overly broad wording of the majority opinion prevents defense counsel from asking plaintiffs if they were referred to doctors by their lawyers, the decision should leave open other avenues to discover information about attorney referrals to and “cozy agreements” with treating doctors. Some of those opportunities should include:
- Intake Forms: Most new patient forms ask who referred the patient to the doctor’s office. If the plaintiff admits his attorney referred him, no privilege should apply.
- Relatives and Third Parties: Defense counsel should be able to ask if the plaintiffs’ friends or relatives know who referred plaintiffs to their doctors. In general, plaintiffs waive any attorney-client privilege if they disclose their communications with their lawyers to other people.
- Treating Physician Depositions: Nothing in the opinion should prevent defense counsel from asking a doctor if the doctor knows who referred the plaintiff for treatment. If the doctor knows it was the plaintiff’s attorney, then the privilege has been waived through disclosure.
- Prior Testimony of the Treating Doctors: If the doctors have testified in other cases in which the same attorneys represented the plaintiffs, defense counsel should still be able to inquire about those prior cases.
Thankfully, the Florida Supreme Court’s decision in Worley is an outlier. As noted by the dissent, a lawyer’s referral of a plaintiff to a doctor is not legal advice. The identity of the person who referred a patient to a doctor is an underlying fact. The narrow majority in Worley simply reached the wrong conclusion. Defense lawyers across the country should remain vigilant to prevent the mistaken ruling in Worley from spreading to other states.
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