Tuesday, March 30, 2021

Another Great High School Year

In the spring of 2021, the Florida High School Mock Trial Competition was more challenging than ever. This annual event brings together outstanding students who perform a trial in teams of six. Three take on the role of counsel, and three of witnesses. Time and again, the organizers and judges note that none of us had the wherewithal to undertake such a task in our youth. These young people are rather awe-inspiring.

All of that is true in the best of times. I refuse to believe the publicity suggesting that these are the worst of times. COVID has impacted us all, and there have been challenges this year. But, I see so much positive progress occurring in this world. I truly believe the future is very bright.

Based upon the parameters set forth for the state competition, we modeled the First Circuit competition on a virtual platform. I have handled a fair number of zoom hearings in the last year, and learned a lot from those experiences. For example, I learned that equipment redundancy makes a great deal of sense (have two computers ready, just in case). It continues to astound me how many ways our old friend Murphy insinuates him/her self into our technology. And at the end of the day, if something can go wrong it will. Despite having used Zoom a great deal since this pandemic started, I learned new things last week in the competition. 

Of note, I learned how to “live stream.“ This is a topic I’ve heard mentioned over the years. Not being a Kardashian, I had never perceived its value to me. Suddenly, however, I was presented with a need to manage trial participants, and found the prospects of any observers quite daunting. With two teams in a zoom conference, along with the coach or two, myself, and some help, you are very soon beyond 15–20 people. The limitations of the platform accommodate by creating pages of thumbnails in the “gallery view.” With many participants in a Zoom room, the thumbnails pictures become small, and scrolling is required to view participants. The "live stream" allowed spectators that did not impact the logistics of participants. 

You can also run the risk in any virtual proceeding that some interloper will choose your meeting for harassment, self aggrandizement, or worse. Time and again I have been asked how the OJCC can fulfill its statutory obligation to conduct live hearings, consistent with the  challenges of maintaining order in the hearing room. The answer, it seems quite clear, is live streaming. This allows the Zoom broadcast to be replicated in a short time-delayed chronology on our YouTube channel. – Any member of the public may attend, fulfilling our statutory duty. However, their attendance is limited to viewing and will not allow interference.

The lessons I learned from the 2021 High School competition:

Lesson one, it may not be impossible to do two things at once but it is impractical when it comes to zoom hearings. My advice to anyone attempting such a competition is to stagger the start times. I tried once to start two rounds at one time, and it was stressful. On the second night of the competition, I offset the start times a mere 30 minutes and it made all the difference. 

Lesson two, have help. In years past we have been fortunate to have college students assistance with time-keeping. This year, I asked for technical help. With two college students present in each round, one to focus on time keeping and the other to be cohost, my stress was greatly diminished. I am deeply grateful for the volunteers from the University of West Florida Legal Studies department. They supported me, caught me repeatedly when I tripped, and patiently kept us on track. I know it is biased, but I perceive young people as technology proficient. These fantastic young people did nothing during the course of our competition to diminish my faith in their technological superiority.

Lesson three, recruit great volunteers. I wish I could take credit for this. I wish that somehow these fantastic people we’re somehow my responsibility. We were so blessed this year to have presiding judges from the OJCC, County Court, Circuit Court, District Court, and Florida Supreme Court (retired) in this local competition. In our little, quiet, corner of the state we had fantastic, patient, and engaged presiding judges. The attorneys who volunteered were gracious, frank, outgoing, forgiving, supportive, patient, and more. Their amazing contribution to these young people‘s lives is frankly immeasurable.

Lesson four, there’s always a kind word. We live in a stressed and challenging time. Certainly COVID-19 has exacerbated this. But, So much more pressure is apparent around us. We live in a society fraught with divergent perspectives. We struggle at times with challenges that seem sometimes insurmountable. We may struggle with the mundane day-to-day in our lives, and sometimes are faced with crushing realities. In the course of this competition I saw competitors support opponents. I heard kind words exchanged graciously. And, as is so common with these young people, I heard a great many gracious and sincere expressions of gratitude and thanks. 

This experience caused me to look back upon my experiences with the high school mock trial program. I recall my first exposure at Fletcher High School in Jacksonville decades ago. I remember the many faces and personalities of hundreds of students I have met in the last 15 years working on the program in Pensacola. And, as I struggle to recover from an event full week, I realize how much these students have given me. I get more from this program than any of them do. 

The news is persistently focused on the “dirty laundry,“ Don Henley 1982. It is easy to believe our society basis problems. I am not na├»ve enough to believe that these students are perfect, flawless, or better than we were at 17. But I’m confident that they are every bit as capable, determined, and focused as prior generations ever were. They are our future, and our future is bright indeed.

I am grateful to all who participated, supported, judged, and watched. We are lucky to have a solid state competition, an organizing and coordinating leadership, and outstanding local coaches and sponsors. But, this is my opportunity to express thanks to those who volunteered here in the First Circuit to support this program and these students:

Dr. Charlie Penrod, University of West Florida (Presiding)
Bonnie Staples, Esq (Scoring)
Brenton Goodman, Esq (Scoring)

Hon. Jennifer Frydrychowicz, First Circuit (Presiding)
Aaron McCurdy, Esq (Scoring)
Valerie Prevatte, Esq (Scoring)

Hon. Michael Allen, First Circuit (Ret). (Presiding)
Patrick Martin, Esq (Scoring)
Tara Sa’id, Esq (Scoring)

Hon. Gary Bergosh, First Circuit (Presiding)
Amy Shea, Esq (Scoring)
Aaron McCurdy, Esq (Scoring)

Hon. Ross Bilbrey, First District (Presiding)
Adam Royal, Esq (Scoring)
Amanda Kidd, Esq (Scoring)

Hon. Margret Kerr, Florida OJCC (Presiding)
Pamela Langham, Esq (Scoring)
Hana Bilicki, Esq (Scoring)

Hon. Jonathan Walker, Florida OJCC (Presiding)
Alan LaCerra, Esq (Scoring)
Shekka Drayton, Esq (Scoring)

Hon. Amy Broderson, Escambia County (Presiding)
Tara Sa’id, Esq (Scoring)
Shannon Morris, Esq (Scoring)

Hon. Kenneth Bell, Florida Supreme Court (Ret.) (Presiding)
Jessica Etherton, Esq (Scoring)
Travis Morock, Esq (Scoring)

Sunday, March 28, 2021

Medical Mileage and Legislative Lessons

In 1935 workers' compensation came to Florida. We were not among the first to adopt this social safety net, in fact we were among the very last. We are perhaps forever grateful to have beaten Mississippi to the punch; Mississippi was last in 1948. There have since been those who lament their perception that workers' compensation has contracted in its coverages and benefits, they decry a "race to the bottom" in which they perceive state legislatures engaged in a cost-focused competition to attract industry and jobs.

But, workers' compensation has also seen expansion of benefits over the years. One example is the 1964 decision of the Florida Supreme Court in which "medical mileage" was judicially added to the Florida workers' compensation act. The legislature had not included this benefit when it adopted the law. The Court noted "it is true . . . that Chapter 440 does not specifically require or authorize payment of travel expenses incurred in obtaining medical treatment." Mobley v. Jack & Son Plumbing, 170 So. 2d 41, 47 (Fla. 1964).

However, the Court also noted that the law did require the employer "to furnish to the employee ‘such remedial treatment, care and attendance’ as the injury shall require." From that requirement, the Court's analysis addresses a hypothetical ambulance ride, noting that it would not "technically" be such care. From that premise, the Court reasoned that no one "would question payment of an ambulance charge." The Court next noted that "if" medical care were offered out-of-state, such an offer without accompanying transportation would be "an empty gesture."

Upon its two hypotheticals, and upon its finding of fact, the Court relied upon decisions by other states that had required medical mileage payments, including Minnesota, Nebraska, and Oklahoma. On a side-note, appellate courts are generally expected to utilize the facts established in the record by lower tribunals, but there are those who advocate for appellate fact finding. 

The Minnesota case cited by the Florida Court reached its conclusion to award transportation based upon it being "humane" and that the law "should be liberally construed." Huhn v. Foley Bros., 221 Minn. 279, 22 N.W. 2d 3 (MN 1946). The Nebraska analysis is largely a deferral to the Minnesota analysis in HuhnNewberry v. Youngs, 80 N.W. 2d 165 (NE 1956). Finally, the Oklahoma case involved railroad fare, and reaches conclusions as to it being reimbursable without extensive elucidation.

Thus, in Mobley, Florida's Court added an element of benefit through inference. In part, at least, this interpretation was bounded upon the "liberally construed" foundation in Huhn. Though the original Florida workers' compensation law did not include statutory reference to "liberal construction," The Florida Court had, by 1964, long committed to that sentiment. 

In Parker v. Brinson Construction Company, Fla., 78 So. 2d 873 (Fla. 1955) it noted itself "committed to the proposition that the Compensation Act is to be construed more favorably towards the working man. That same year in Townsley v. Miami Roofing and Sheet Metal Company, 79 So. 2d 785 (Fla 1955) it held that "it is the duty of the Court to liberally interpret the act in favor of a claimant." Thus, Mobley may have been influenced by that liberal construction sentiment indirectly without statement or citation, but certainly so in the reliance on Huhn.

In 1990, the Florida Legislature corrected the Court's "liberal construction" precedent with the creation of section 440.015. This provides:
"Disputes concerning the facts in workers' compensation cases are not to be given a broad liberal construction in favor of the employee . . . or . . . the employer."
In 1993, any doubt that this foundation applied to both factual and legal disputes was clarified with the legislature's addition of
"and the laws pertaining to workers’ compensation are to be construed in accordance with the basic principles of statutory construction and not liberally in favor of either employee or employer."
This Court

 is committed to the proposition that the Compensation Act is to be construed more favorably towards the working man (Parker v. Brinson Construction Company, Fla., 78 So.2d 873). It is the duty of the Court to liberally interpret the act in favor of a claimant (Townsley v. Miami Roofing and Sheet Metal Company, Fla., 79 So.2d 785)

Boden v. City of Hialeah, 132 So. 2d 160, 162 (Fla. 1961)

More than a dozen years after the Court decided Mobley (1977), the Florida "legislature added a provision to section 440.13 expressly authorizing such medical mileage." As the Florida First District explained later, that statutory provision remained until "the legislature amended section 440.13 in 1993 (when) it deleted this provision." The District Court's analysis of that 1993 deletion was essentially that the legislature had not changed the employer's obligations regarding transportation by removing this from the statute. Sam's Club v. Bair, 678 So. 2d 902, 903 (Fla. 1st DCA 1996).

The District Court conceded in Bair that "the legislature is presumed to have intended to alter the law unless the contrary is made clear. But, it contended that after a "court has construed a statutory provision, subsequent reenactment of that provision may be considered legislative approval of the judicial interpretation." The District Court found therefore that the removal of medical mileage from section 440.13 in 1994 was "ambiguous." The Court essentially concluded that because the 1993 statute nonetheless retained the "care and attendance" language which the Mobley Court found so inferentially persuasive in 1964, the 1993 legislature must have been endorsing Mobley, and the court-created medical transportation benefit from 1964. 

This perhaps ignores a curiosity or two. First, what did the legislature intend when it enacted the  transportation statute in 1977. Did it, as "presumed," "intend[] to alter the law?" If it did not so intend, how and where is there a clear indication to the contrary? Some, perhaps, would find that clarity in its seeming adoption of Mobley in 1977? However, that might have been worthy of a sentence or two in Bair.

But, in a broader sense, when the legislature in 1993 removed the medical transportation statute enacted in 1977, the "liberal construction" foundation upon which Mobley was built had been legislatively negated and disaffirmed. In point, the very foundation of the Mobley analysis no longer stood, and thus its precedential value was at least questionable by the District Court. For some reason, that distinction was interestingly not discussed by the Bair decision. Possibly, the Court recognized and was unpersuaded by the resulting flaw in Mobley, but it is interesting that it was not explained. 

In this regard, the dissent of Justice Wells in Aguilera v. Inservices, Inc., 905 So. 2d 84, 107 (Fla. 2005) is interesting. Justice Wells recognizes the import of section 440.015, and argues that the Florida Supreme Court reliance there on Sibley v. Adjustco, Inc., 596 So. 2d 1048 (Fla.1992) was misplaced in light of its facts. The work accident in Sibley was governed by the 1989 law. As Justice Wells noted, in questioning the Court's 2005 reliance on that precedent, "Sibley was decided (by the trial court) before the passage of section 440.015, Florida Statutes." Thus, recognition of the potential for foundational shift is not unheard of in such analysis, specifically as to the sentiment of section 440.015.

The recognition of the 1993 change to section 440.015, seemingly overlooked or disregarded in 1996 in Bair, appears to first receive recognition by the appellate court in April 1998 (Orange Cty. MIS Dep't v. Hak, 710 So. 2d 998 (Fla. 1st DCA1998)), and is recognized repeatedly that year (Okeechobee Health Care v. Collins, 726 So. 2d 775 (Fla. 1st DCA 1998); McClung-Gagne v. Harbour City Volunteer Ambulance Squad, Inc., 721 So. 2d 799, 803 (Fla. 1st DCA 1998).

This is an intriguing history of Florida's workers' compensation evolution. The Court implied a benefit based upon imported Minnesotan, or broadly inferred, "liberal construction." Then followed a subsequent legislative enablement of that creation, a statutory transportation benefit published for 16 years. During that 16 years, the legislature specifically countermanded the "liberal construction" foundation of the Court's implied benefit. And, when the legislature later removed that statutory transportation benefit, the District Court concluded that the legislature nonetheless must have been legislatively endorsing the (then) thirty-year old Mobley inference decision that "liberally constructed" that benefit in the first instance. And, to make it all the more interesting the District Court chose not to explain the inference, the import of section 440.015, or the apparent foundational shift. 

Aguilera v. Inservices, Inc., 905 So. 2d 84, 107 (Fla. 2005)

From the standpoint of legislatures, the lesson is perhaps that judicial shift may simply be easier than legislative change. It requires fewer votes and perhaps less time and process. Similarly, it often lacks broad public input that legislative process may provide. Some would note alternatively that judicial change may be more of a challenge as it nonetheless requires both a fitting case and controversy and a litigant with the resources to individually pursue the change. 

From the perspective of the courts, the path to a Minnesotan "liberal construction" is both curious and intriguing, but the later interpretation of the legislature's removal of that statutory benefit is more intriguing still. In retrospect, one might wonder if the patent change to that "liberal  construction" was argued and ignored in Bair, or neglected by the parties.

In a larger context, the "race to the bottom" argument needs to be considered in the broader nature of workers' compensation. Is it practical to conclude that legislative enactments are necessarily reducing benefits in the aggregate, or is it possible that such legislative action may merely address some judicially implied expansion of benefits, which legislatures perhaps did not intend? Is it for courts or legislatures to add or detract from the benefits and burdens of the respective parties to the "Grand Bargain?" 

Is the "Grand Bargain" about what the legislature gives or takes away? Is its measure of viability in what the courts give and the legislature takes away? Are there as likely instances of what the legislature gives and the courts takes away? In the overall analysis is there recognition that anything taken away must come from somewhere just as anything given must? That is to say, there are two parties to the "Grand Bargain," and the benefit to either is necessarily a burden in some fashion to the other. 

None of this presupposes the need for, appropriateness of, or cost of medical transportation (or any particular benefit). Sound policy justification can be made on either side of such debates by policymakers. This blog is neither an endorsement or criticism of any benefit under the law. The point here is that the analysis of the legislative enactments by courts is intriguing and worthy of consideration regardless of the underlying simplicity of a particular benefit such as medical transportation. And, some might say, and it may be an analysis of how one defines "policymaker."

Thursday, March 25, 2021

Catch a Cold!

For some idiosyncratic reason we started feeling superstitious about wishing someone "good luck" and instead expressed it contrarily saying "break a leg." Contrarily, we often say to someone "be well," "stay safe," or similar. Why don't we instead implore them to "catch a cold?"

Some say "the best defense is a good offense." That is an old idiom of questionable origin. The point of it is that attacking your foe will consume its attention, thus leaving it less resource or attention to engage in attacking you. In a similar vein, it is sometimes possible for some foe's resources to be consumed by some other entity or force, thus resulting in a similar depletion of the foe's resources but without your effort. The old idiom for this is "my enemy's enemy is my friend." Idioms can be illuminating.

The offense and enemy idioms came to mind recently as I read a new article recently published in The Journal of Infectious Diseases, jiab147. Scientists in the United Kingdom have been studying the manner in which viral infections interact with one another. Specifically, they were interested in the relationship between the common cold (rhinovirus) and SARS-CoV-2 (which causes COVID-19). Their conclusion is that "this virus-virus interaction is likely to have a population-wide effect."

Without a doubt, there are steps that humans can take to protect against SARS-CoV-2/COVID-19. For the last year, we have heard about hand washing, not touching our face, and social distancing. For months, we have heard about mask wearing though that has been a bit of a rollercoaster. For weeks now, we have heard about vaccines available to prevent the most serious effects of COVID-19. Each of these represent effort we can exert. And, once inoculated, the vaccine can exert some effect of its own.

The UK research identifies an ally though; a enemy of enemy. It is not new. The researchers note that previous studies have demonstrated that the common cold (rhinovirus) infection can stimulate the body to protect against the flu. Similarly, the rhinovirus has demonstrated some success in attenuating the severity of influenza.

The common cold has demonstrated ability to help us defend ourselves against other viral infections. The cold has been a challenge forever, and despite herculean efforts we as yet know of no cure. In recent years, however, we have heard promising news of progress against these pesky respiratory infections.

In 2020, there was discussion of the common cold and t-cells. The National Institute of Health (NIH) reported that our bodies can effectively learn to defend themselves against the cold virus using t-cells. That same "pre-existing T-cell memory against common cold coronaviruses can cross-recognize SARS-CoV-2." In other words, some people had a head start in resisting the novel coronavirus or in minimizing its symptomatology. In short, having had past colds assisted some of us with dealing with the exposure to SARS-CoV-2.

The new research is even more promising though. The UK scientists examined the manner in which SARS-CoV-2 replicated. The success of any virus is in its ability to invade some host and to then replicate. The simplicity of that model is then challenged if more than one virus is in competition in the same host. And, there is some hope that the common cold, while not our friend by any means, may be a less dangerous enemy than the SARS-CoV-2. Furthermore, that cold is a selfish friend that may help us ward off COVID-19 or even evict it once it has taken up residency.

That said, there is also an incidence discussion that is valid. It is noteworthy that the last year of hand washing, distancing, masking, and more have been largely successful against COVID-19. But, all of those efforts have also been largely successful against the cold and flu also. Thus, the opportunities to study SARS-CoV-2 interacting with influenza or rhinovirus have been limited. So, the UK scientists introduced these to each other in the laboratory.

What they found was intriguing. The Rhinovirus stimulates production of interferon as a defense. And, the scientist noted that when both rhinovirus and SARS-CoV-2 were present there was a "block in SARS-CoV-2 replication." Though the virus that causes COVID-19 entered the human tissue, it was not successful multiplying. The presence of the rhinovirus was beneficial in that it does not tolerate the presence of the other virus. It inspires our immuno-response more readily and thoroughly than the SARS does. This is good news for people who have colds.

So, rhinovirus "infection impairs SARS-CoV2 replication and spread." Better news, however, is that the rhinovirus entering the body impacts COVID-19 "even . . . 24 hours after SARS-CoV-2." One can be infected with SARS-C0V-2, and catching a cold within 24 hours can be beneficial! Thus, there is a body of research developing that supports the "incurable" common cold may be more of a benefit to us than the nuisance we have always perceived.

The cold stimulates our immune systems in a more profound manner than the flu or SARS-CoV-2. Our reaction to the cold, the interferon, is effective against other these and other viruses. And, as we learned early in the COVID-19 experience, our bodies' learned cold response with t-cells has the potential to help us react to new, "novel," coronaviruses to some degree. In short, the much-maligned common cold may be our best friend.

Sure, no one wants a cold. But, who wants a broken leg? Perhaps we learn to live with SARS-CoV-2 as it has come to call. Perhaps our futures bode well for ongoing habitual hand washing and vaccines. But, let me part with this wish to you - catch a cold!

Tuesday, March 23, 2021

Our Imperfection

Two Florida appellate decisions recently drew my attention. Neither has anything substantively to do with workers' compensation. Old Statler and Waldorf may be sitting back right now lamenting this workers' compensation blog so patently departing the topic. Please accept my apologies if that departure troubles you. This blog, you see, is about the law (which is the foundation to workers' compensation, writ large, as well as various other topics).  

In the first case, Santos v. City of Miami, 3D20-717 (January 27, 2021), a trial court granted the defendant's motion to dismiss the complaint. There followed an amended complaint followed by a motion to dismiss that. The trial judge thereupon issued a second dismissal order without a hearing, resulting in the review by the appellate court. The issue there was essentially that the second order mistakenly referenced the original rather than the amended complaint. Thus, the result affected the wrong cause.

In the second case, Mantilla v. State of Florida, 3D20-949 (January 27, 2021), the trial judge rendered findings regarding certain payments. That process involved determination of the income earned by one of the parties, and therein there was an element of "imputing income"; that is essentially determining what income "would be" in the absence of evidence regarding what that income actually was.

At first blush, these two cases have little to suggest interrelationship. However, they are each pertinent because of the Court's complimentary reference in each to the posture of the appellee (the party that isn't seeking review of the court, the "responding" party). In each of these cases, the appellee essentially admitted that the trial judge was in error. Error is an inevitability, no one is perfect. A natural consequence of the human condition is that errors and mistakes will occur.

The Court noted that the appellee in each case "properly and commendably concedes error," or "commendably confesses error." There is no seeming distinction between "conceding" or "confessing," and they are arguably synonyms.

However, the notable word in each opinion is "commendably." The party that prevailed in each instance might have persisted, resisted, obfuscated, distracted, and delayed. Each might seek to benefit from a mistake or error in its favor. But, each of these instead proceeded to the merits, and elected not to waste the time of the appellate court and its process. The admissions of error(s) described by the Court as "commendable," are also expedient and professional. This blog recently noted perceptions of unprofessional behavior in Pet Peeves of Judges (2021). The Court's recognition of professional conduct in these two instances stands in contrast to some of those "peeves."

The two examples are appellate. But, in this context, a tribunal is a tribunal is a tribunal. Referring back to the Pet Peeves post, the following listed "peeves" are relevant to this "confession or concession of error." 
"8. Trying to hide the truth of what's really going on in a case."
"12. Attorneys testing the boundaries of professionalism. Nobody wants to lose their case as a trial lawyer. And in the zealousness to win, sometimes attorneys (and hopefully mostly unintentionally) want to 'hide the ball.'"
"46. Failing to call to the Court's attention that a misstatement is made. Attorneys do not realize that they gain credibility with a judge when they voluntarily correct themselves in a hearing if they have misstated a fact or a point of law. The attorneys gain even more credibility if the self-correction is on a dispositive issue. Why win the battle, when you can win the war? The judge will likely trust the candid attorney, as the judge knows the attorney will not lie to him/her."
"76. Lack of candor with the tribunal."
In these, there is an underlying theme of candor, even when that word is not specifically used. The Rules Regulating The Florida Bar, Rule 4-3.3 is specific to "Candor Toward the Tribunal." This says that "A lawyer shall not knowingly" "make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal." That is, it is wrong to make false statements.

Beyond that simple prohibition, the Rule also requires a "A lawyer shall not knowingly" "fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client." Furthermore, "A lawyer shall not knowingly" "fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel." That is, it is wrong to tell less than the "whole truth" or to allow one's client to do so.

Thus, the Rules seemingly preclude 8, 12, 46, and 76. These are perhaps not grey areas or margins. It is wrong to make misrepresentations. It is, conversely, "commendable" to bring to the tribunal each controversy on its merits. If there is error, counsel should admit it, reveal it, and steer the attention back to the merits, rather than some distraction or mistake. I strongly believe judges likewise should not be inquisitors or investigators, but in the spirit of this "merits" discussion it is appropriate for a judge to interrupt and question when there is some patent error (e.g. "did you just say 2020? My document says 2019?").

This truth and completeness paradigm is absolutely not a proprietary appellate court precept. The confession of error should be a focus of attorneys and parties in discovery objections, pre-trial proceedings, and trial. The "commendable" attorneys and parties will strive to maintain focus upon the real issues, the merits of the dispute. There is no harm whatever in simply admitting an error, whether yours or merely in your favor. That admission is nothing more than an acknowledgement of our humanity. It is entirely possible you or I will eventually make a mistake of our own and be grateful someone points it out. That admission of error is "commendable," empowering, and professional.

Sunday, March 21, 2021

It's Simple Economics

There is discussion in the world now about "fair distribution" of the SARS-CoV-2/COVID-19 vaccine. News in February 2021 focused upon how the G7 will address fairness.

A recent post, Vaccination Tribulations (2021) focused upon the different reactions to SARS-CoV-2/COVID-19 vaccinations. There are those who say they will not partake, others are reticent for now, and still others will seemingly go to great lengths to obtain it; lying, cheating, and stealing are apparently not beyond the pale.

The post yields to the debate of what is "fair." One of my law professors had a vein in his temple that would expand visibly whenever a student used the word "fair." He contended that word only refers to "a picnic with farm animals, amusements, and rides." Some considered him to be cynical, but other held him in less esteem. I knew one person that took a second class with that professor, but for the most part he was relegated to the 1L students coerced into his section.

The fairness debate in Tribulations focused on which Americans get the vaccine when. There is a patchwork of distribution criteria across the country and these evolve persistently in response to the desire of various groups to accept the vaccine(s) and the supply. As Kyle Duff's dad once said on Southpark: "It's simple economics son. I don't understand it at all, but God I love it."

"Fair." Is it somehow fair that countries are purchasing vaccinations? The National Public Radio (NPR) noted in November 2020 that "Rich countries are rapidly claiming the world's lion's share of future doses of COVID-19 vaccine." The story proceeds to explain there will be delays in vaccination in "low-income countries." The flaw, according to the authors is that "the world has a limited capacity to manufacture any forthcoming COVID-19 vaccines each year." The point, is one of supply. The flaw in the article is that no country is "claiming" anything, but they are making purchases.

The "simple economics" is perhaps not that hard to understand. In a nutshell, two elements compete against one another in a micro sense. The supply of a commodity is pit against the demand for it. When demand is greater than supply, that thing is "scarce." For class, I often ask students why a bucket of sand at Pensacola Beach is free for the taking compared to what a bucket of diamonds would cost. I ignore the complexity that is presented by the fact that diamonds are not rare. Their supply has been successfully and artificially suppressed for decades, leading to a rarity effect that itself is interesting.

But, in the face of scarcity or the perception of scarcity, the price of that thing will increase. People will make rational choices regarding how much they are willing to pay for any particular thing. As a thing's price exceeds one person's willingness threshold, that person will no longer be a willing purchaser. As populations of purchasers drop out of the market, demand will collectively decrease. If enough drop out, and demand sufficiently softens, then price may adjust downward.

The price at which the entire production (supply) sells, is called the "market clearing price" or "equilibrium price." The efficiency of a market may be measured by whether it achieves such market clearing. The world's politicians decided long ago that this "simple economics" cannot be allowed to stand. Through regulation, taxation, production, and more governments have striven to control both the supply and demand sides of the simple equation in order to overcome the choices individuals might otherwise make. Some governments exert such control through regulation, others taxation, still others public opinion. It is intriguing to watch.

We have seen it in the U.S. supply side with examples such as Wickard v. Filburn, 317 U.S. 111 (1942) in which Roscoe Fillburn elected to violate wheat production quotas imposed by the Secretary of Commerce. In an intriguing opinion, a unanimous Supreme Court concluded that the Commerce Clause does indeed afford Congress authority to tell you how much crop you may grow on your land, regardless of whether you sell that crop or use it yourself. Thus, it is constitutional in the most free nation on earth for government to regulate supply.

It has likewise been seen in the demand aspect in examples like National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012). There, the Court in a less-than-unanimous decision concluded that the U.S. government has the authority under the constitution, which you "the people" ratified, to legally force you to purchase a product in which it perceives value. This is regardless of whether you perceive value or would demand such product or service. Thus, through the power you granted to government it may effect demand for products.

While Wickard supported that you could be compelled not to grow petunias in your window boxes, Sebelius supports that you could be forced to purchase petunias from others. All that seemingly matters is whether the government wants you to grow or to purchase, or not.

Suffice it to say that simple economics may not be all that simple. Government, it may be said, has both capacity and motivation to make it complicated. One might wonder if there is any aspect of your life into which government may not intrude.

NPR concedes as regards COVID that demand impacts production. There is money to be made in vaccine development right now. Countries that have capital (or that are ready, willing, and able to incur debt like the U.S.) were paying pharmaceutical companies last year for vaccines that had not yet made it to market. They were "reserving" by advance-purchasing billions of doses of vaccine. As NPR aptly notes, that action:
"flood(ed) investment into vaccine development and allow(ed) many more candidates to be developed than otherwise would be possible"
Companies were able to literally throw resources at research, development, clinical trials, and more to produce vaccine(s). A company might invest billions in development of a drug, and yet never make it to market. There is risk in the research and development process. Some say nine of ten developed drugs never receive approval. They could be a money pit. But, not so much when there is government money there at the outset to fund the development. The government, in that instance, is taking the (or at least some of the) risk.

Thus far, that investment effort has led to a fantastic scientific response. Eight vaccines are being administered according to Statista. Eleven are being administered according to the Regulatory Affairs Professional Society (RAPS). More are under development. RAPS says 57 more are in development. That research and development does not occur without money. Before anyone becomes too pious about that, ask yourself how long you would continue to report to work if your paycheck stopped? Remember, Ben Franklin's admonition "time is money."

See, the expense of developing a drug or vaccine is largely investment in human capital. To sell a product, someone must pay engineers or scientists to design it. There must be planning, refining, testing, and more. From the blue prints or formula, people must manufacture components or grow elements, load and transport them, combine them, test them, and deliver the product to market. There, more humans are engaged in the sale, financing, and delivery of that product. Many hands are in the process from start to finish, and none of them labor for free.

"Money makes the world go round," according to the song from Cabaret. Or, if you prefer, Cindi Lauper noted "Money Changes Everything." Those Lauper lyrics also lament the naivete that "Ah honey, how could you do it? We swore each other everlasting love." Love is a grand thing, but you cannot eat it. Conceding the attraction of love, Lauper reminds "but everybody's only looking out for themselves." Before you lament that "greed" too much, ask yourself again if you would keep working if they quit paying you?

So, why have countries reserved, paid for, "enough potential doses of different types of vaccines to immunize their entire populations several times?" That is relatively simple. There is some potential for any particular vaccine to be ineffective, to cause side effects, to elude scientific approval from agencies such as the United States' Food and Drug Administration. If a vaccine approval effort fails, then the investment that went into it is lost (think of the Edsel). If a vaccine fails, all the doses of it reserved or paid for are worthless. So, bets are being hedged, and doses are being reserved in multiple potentials. As an investor (tax dollars are being used to procure the vaccine, and you as a taxpayer are therefore an investor), do you want government to bet on one option only with the associated risk that it might fail? Of course not.

Is this to the detriment of poorer nations? No. That is preposterous. If there were no investment in vaccines, there would perhaps be no vaccines at all. Or, the development would proceed not with "money in pocket" from those massive pre-sells or reservations, but with whatever resources some researcher or manufacturer is willing to risk. If the risk is underwritten by pre-sales, a developer is not taking all that risk of failure personally, and is more likely to invest and to strive for development of a product.

Absent those pre-sales, all the risk is on that one company. With knowledge that only about 14% of new drugs eventually win FDA approval, that risk is problematic. The approval rate is low, the investment cost in research and development is high. How much of your wealth would you gamble? The natural risk-aversion would slow or preclude vaccine development. That is, the research and development would likely proceed less rapidly. That is, less rapidly not for "poor countries," but for everyone.

It is truly that simple: "money changes everything." The lamentations regarding more rapid delivery now to those that paid for the research is troubling. Those who lament that some countries have invested so heavily, who lament the rapid deployment in some places, essentially lament that the market was not left to its own cautions, financial limits, and extreme risks. They lament that we did not all wait longer. They seemingly see egalitarian benefit in us all being equally delayed in achieving safety, piece of mind, and economic recovery.

These critics see a validity in the lowest common denominator path to equality (everyone waits equally as long and we get vaccines in more like 3-4 years, but it is egalitarian and "fair"). Before doubting the 3-4 year guess, note that historically vaccine development has been 10-15 years. These critics ignore the reality of long-term development and various failures. They lament that the opposite outcome here is a success because those who invested in the success, drove the market to success, are first to enjoy that success.

The fact is that the world has not had to wait years for a vaccine, but has seen multiple vaccines in under one year (when the supposedly greatest scientific minds said it could not be done). This rapid research, development, and deployment will benefit those who funded it. But, in the end massive populations of people who did not fund it will similarly enjoy a somewhat delayed (more than a year), yet far more rapid (way less than 3-4 years) deployment of relief. No one will likely wait the years that deployment would otherwise have required. That there was investment on a huge scale will be to the benefit of all, even if some wait a few additional months. Because no spectacular failures have yet occurred, it appears that the overall result of this greedy investment in good is an active supply of vaccine that continues to rapidly expand.

As those 57 "in development" vaccines come to market, the supply of vaccine will only increase further. As people around the world receive inoculations of the 11 current vaccines (and more to come), and then no longer personally seek an injection, demand will decrease. Either increased supply or decreased demand would alone result in a lower equilibrium price. The combination from both will simply decrease that price more rapidly in conjunction than either might be expected to alone. And as demand falls and supply increases, every population in the world that wishes it will receive the vaccines. It is likely that many will receive it for zero investment, at zero cost, with zero effort. For having waited a few additional months, large populations will receive this scientific wonder for nothing. And, in that no pundit I have found finds anything "unfair."

Over time, the vaccine price may diminish sufficiently that some companies currently developing a vaccine may elect to abandon their efforts. They may conclude that further investment is not rational in light of the resulting price they might expect. Economic theory, absent the governmental influence of investment (pre-purchase or reserving), will drive their decisions regarding further research and production. Short of this pre-sale process, some of the current 11 might not have ever come to market, and some of the current 57 in development might cease efforts. Short of the investment, the supply side we expect to benefit from might not expand nearly as rapidly.

It is troubling that anyone is lamenting the rapid development and deployment of vaccine in under 12 months. Not only is the process "fair," it is a dramatic benefit to everyone in the world. We should be pleased that this "rising tide (of vaccine) is raising all boats, large and small." The process will lead to re-invigorated economies, greater social interaction, and societal progress. Relief is here years ahead of probability and scientific prognostication due to the investment and pre-purchases that some now actually lament. Their criticism is illogical, unfounded, and troubling. "It's simple economics" alright, and it is not that hard to understand at all. 

Thursday, March 18, 2021

Res Judicata

Res Judicata is in the workers' compensation news. There is a perception of conflicting appellate decisions in Virginia, leading to legislative efforts to change or clarify the law there as regards issues or claims that are not plead by an injured worker. The legal term "res judicata is the principle that a cause of action may not be relitigated once it has been judged on the merits," according to Legal Information Institute (LII) at Cornell.

The LII explains that the concept of "res judicata is also frequently referred to as 'claim preclusion.'" At first glance, it is likely that the issue being discussed in Virginia is more of a "claim preclusion" conclusion than the broader definition of "judged on the merits." However, the "on the merits" remains understandable in context.

The controversy in Virginia stems from decisions of the appellate court, in particular Brock v. Voith Siemens Hydro Power, 716 S.E.2d 485 (Va. Ct. App. 2011). In Virginia, workers' compensation trial decisions are made by Deputy Commissioners. The first level of appellate review occurs before the Commission itself (comprised of three members appointed by the Legislature). Further appellate review is available through the constitutional appellate court. Interestingly, one of the current Commissioners was apparently involved with representing the appellant, Brock, in that appeal back in 2011.

The court then noted Brock was injured in 2007 and shortly thereafter filed a claim for benefits alleging injury to "his shoulder, back, and hips." As trial approached, Brock's attorney sought a continuance to gather evidence. The parties stipulated that Brock "had injured his left shoulder," and Brock neither provided evidence of other injuries nor asked for further continuance to develop such evidence.

That hearing concluded and an order was entered awarding certain benefits and dismissing the claim. Months after, Brock's attorney sent a letter asking for benefits related to "injuries to his hip, back, and legs arising out of the same accident." In some jurisdictions, such claims are referred to as "added," in that they are suffused into some other claim (shoulder). Despite the request being a letter, it was treated as a "claim" and set for hearing. That informality of a letter seeking benefits may itself be intriguing to those in jurisdictions that are more formal in their litigation processes.

The Deputy Commissioner held another hearing, and Brock appeared for it without counsel, or "pro-se." An order was entered concluding these "new" injuries had been previously plead in claims prior to the first hearing. As such, the Deputy concluded that those claims had been plead and thus "abandoned” by failing to prove those injuries and any entitlement to benefits there from.

However, the Deputy did not conclude abandonment equaled res judicata, instead concluding those issues were essentially dismissed, labelled "a non-suit" (a judgment given against a plaintiff in which the court dismisses a case). The non-suit or dismissal characterization would thus allow the issues to be litigated anew. Neither the Commission nor the appellate court agreed with the Deputy's characterization, with the court noting "nothing in the record suggests Brock ever sought to withdraw any portion of his claim."

The first appellate review, by the Commission, concluded that the claims were barred by res judicata. This was because the claims "either were previously litigated or 'could have been litigated'" at the first hearing. The outcome of that first hearing "settle(d) the rights of the parties regarding the compensability of the injuries alleged." Thus, it is not merely that some issue was litigated that can implicate res judicata, but it "also bars matters which could have been litigated." In this manner, some find it more descriptive to refer to such as "waiver" rather than res judicata, as in the party "waived" her/his/its right to prosecute that particular claim.

The Brock court noted that hearing a case in a serial manner might be more expensive, and "would (potentially) 'waste considerable time and expense on the part of the Commission.” The Commission referenced in that discussion, without specifically labelling, the concept of judicial economy. There is some need to balance efficiency in the judicial process with effectiveness. The primary goal is of course to deliver an effective dispute resolution process, but there are many disputes that require attention. Therefore efficiency may be critical in a broader context of societal need to be balanced against individual rights.

The Virginia Court explained the preclusion of both issues and claims. The "issues" term refers to res judicata barring repeated litigation of something that has already been "actually litigated" in any proceeding. However, the "claim" term prevents relitigating the "very same claim" regardless of any similarity or identity of the issues. The Court explained that “'every litigant should have opportunity to present whatever grievance he may have' but if given an opportunity to do so and 'having failed to avail himself of it, he must accept the consequences,'” citing the state's supreme court in a 1909 decision. When an appellate court cites century-old authority, it has a connotation to some of "its been this way a long time."

Because those allegations regarding the "shoulder, back, and hips" could have been litigated in the first hearing, the Court concluded that they should have been. The Court expressed some confusion as to why counsel for the worker had not pursued them. However, it conceded that workers' compensation cases in some regards are serial by their very nature, with issues arising periodically regarding treatment, care, etc. It also conceded that a Deputy might specifically defer a particular determination or issue until some future proceeding, something a party might specifically request. That a Deputy could do so, however, did not equate in the court's analysis to this Deputy having done so in this case. 

The legislation that has been proposed in Virginia is Senate Bill 1351. This would amend the Virginia Workers' Compensation law to eliminate res judicata in this context. The bill would add a new subsection to the statute:
§ 65.2-706.2. Claims not barred. No order issued by the Commission awarding or denying benefits shall bar by res judicata any claim by an employee or cause a waiver, abandonment, or dismissal of any claim by an employee if the order does not expressly adjudicate such claim.
This might lead to a variety of outcomes. Some might perceive the change as requiring greater specificity of a Deputy. In that context, would the outcome in a case such as Brock remain the same if the Deputy's original trial order specifically stated: "this claim is hereby dismissed, and is ordered removed from the hearing docket; this includes all allegations set forth in the amended claim as related to the 'shoulder, back, and hips?'" Would it suffice if the order dismissed "all claims, including but not limited to those adjudicated herein?" Or, would a more general mention of dismissal of "all other claims plead, but upon which evidence was not adduced" suffice?

There are those who may see the legislative proposal as more favorable to the injured worker, an ability to litigate more frequently or serially. Others may instead see merely a requirement for more judicial formality, and in that more notice to the worker of the implications of a trial outcome. 

The Florida appellate court long ago rendered a decision similar to Brock: Betancourt v. Sears Roebuck & Co., 693 So. 2d 680 (Fla. 1st DCA 1997). The Court there concluded to consider the case "en banc in order to maintain uniformity of this court's decisions." That is, the entire Court considered the appeal rather than the more typical three-judge panel. Such a process brings more weight to a decision and analysis because it is of the entire court. The Court there reiterated the maxim that when a claim is asserted, and the matter proceeds to trial, the issue must be withdrawn, the trial continued, or jurisdiction reserved in the adjudication. When none of these three occur, "the doctrine of res judicata bar(s) the subsequent claim" for that benefit.

The Betancourt Court expounded and described three potentials. 

First, if the Judge specifically reserves jurisdiction over some issue, then that order is "non-final" in the view of the Court; thus, it is not likely to be immediately subject to appellate review absent some exceptional circumstance. 

Second, if the issue is tried, meaning evidence is produced regarding it, but the Judge does not rule on that issue, the Court deems that claim denied and the order thus final for purposes of appellate review, and likely reversible. 

Finally, if an issue is "ripe" at the time of the hearing and the injured worker does not "produce evidence or obtain a ruling," then the Court will "will consider the claim abandoned and the issue waived." In this last example, a subsequent claim for that same benefit "will be barred by the principle of res judicata." 

There is some complexity in this three-element analysis. However, there is likewise clarity. Counsel and claimants alike would be well served with a focus on Betancourt and its implications both when filing a petition (all issues should be "ripe, due, and owing," section 440.192(1)), and when preparing for trial (one might consider then "does this issue remain ripe?"). 

Whether the Virginia legislative action, if passed, results in a practical change or not will be determined in future cases. It is possible that everyone will see that statutory language as clear and conclusive, and yet others perhaps not so much. 

The statutory language might result in substantive change. The outcome could be an increase in piecemeal litigation of workers' compensation there. The very nature of workers' compensation litigation has been perceived by courts as "serial," meaning in parts and pieces rather than necessarily in a single trial as a personal injury case is more likely to occur. It is possible that this Virginia legislation may increase that propensity there, to the possible substantive benefit of workers and detriment of employers. In that regard some might perceive some shift in the "grand bargain" that is the overall fabric of compromise and "quid pro quo" that is workers' compensation. 

However, it may instead simply lead to the rote inclusion of dismissal language in each trial order. The trial attorney that fails to address some ripe, pled, and pending issue at trial may be as likely to fail to address it in response to such a detailed order (by rehearing, or by seeking review). If the legislative change merely accomplishes a greater focus upon the content of orders, that may afford parties better knowledge and clarity. Clarity, that is, as to what was considered ripe, was adjudicated, or was seen as waived. However, if counsel (or party) is not thereafter focused on immediately correcting some misperception, it is possible that a change in order language could be the only real effect of the legislature's efforts. 

Thus, the change may help parties to better understand outcomes. Or, if might result in more litigation and increased costs (of benefits or merely judicial effort). The practical implications may be interesting to observe in the event the legislature adopts the change. 

Tuesday, March 16, 2021

Repose and Limitations in COVID

The good news just keeps coming (sarcasm for the uninitiated). Recently, in Always on My Mind? (February 2021), I returned to the subject of the "long-COVID" and how that might have long-implications for workers' compensation claims. There are long-term implications from COVID-19 garnering news coverage, and there is a tendency for the workers' compensation community at large to overlook both statutes of limitations and statutes of repose. The subjects perhaps bear consideration in detail.

The repose and limitation concepts are not new to this blog. See Stare Decisis, Goodgame, Livingood and Westphal (2015) and Statute of Repose Forecloses Claim (2020). Quoting the Kentucky Court in Stare Decisis, the distinction is clear: limitation is the “time in which one may bring suit after the cause of action accrues, while . . . repose potentially bars a claimant’s suit before the cause of action accrues.”

In Florida, the workers' compensation limitation language is found in section 440.19:
"all employee petitions for benefits under this chapter shall be barred unless the employee, or the employee’s estate if the employee is deceased, has advised the employer of the injury or death pursuant to s. 440.185(1) and the petition is filed within 2 years after the date on which the employee knew or should have known that the injury or death arose out of work performed in the course and scope of employment."
Some will focus there upon the "2 years." Others may instead focus upon the "knew or should have known" that follows it. There is also specific repose language regarding some elements of occupational disease claims in section 440.151, as regards the most serious potential outcome:
"In claims for death under s. 440.16, death must occur within 350 weeks after last exposure."
Thus, an exposure might occur that causes disease. However, if that disease and death occur too long after exposure, there may be no compensation. That is repose.

There are factors outside of Chapter 440 that may likewise influence workers' compensation in some contexts. In December 2020, the Florida First District Court decided Palm Beach County Fire Rescue v. Wilkes, 309 So.3d 687 (Fla. 1st DCA 2020) in which it explained the statute of repose for Florida's recently adopted mental/mental exception applicable by presumption to certain employees. See section 112.1815(5), Fla. Stat. While this may be a provision of narrow application, it is nonetheless worthy of consideration in understanding the potential impact of such statutory constructs.

With all of this in context, it is important to recall that incidence may not necessarily be evidence. The coincidence of events with symptomatology does not necessarily equal causation in any claim. It is entirely possible for some event to occur in your life, followed by the onset of symptoms, and yet there still be no scientific evidentiary foundation to connect the two. 

Over the course of years, I have had various scientists describe to me that the temporal relationship may be critical in that instance. That is, how quickly following the event do the symptoms appear? Based upon that temporality, a fair few have historically been willing to render medical opinions regarding causation (positive or negative). Thus, in their opinion, if a patient lifts a box at work at 10:00 a.m., and coincidentally has the immediate onset of symptoms, there is perceived a "correlative" relationship between cause (lift) and effect (symptom). But, what if that symptom does not appear thereafter for 5 minutes, 5 hours, 5 days, or 5 months?

A somewhat famous quote "the absence of evidence is not evidence of absence" comes to mind. The origin of that is somewhat unclear and perhaps came first as regards Hittites, a bull, glaciology, or even Vikings. Regardless of provenance, this bit of wisdom has received acceptance among many, including modern figures such as Carl Sagan. I have heard the quote on various occasions in the context of a workplace injury as well.

However, that symptoms do not appear immediately cannot conclusively demonstrate lack of causation. Similarly, the immediate of symptomatology is not necessarily definitive evidence of causation. These may be factors for consideration, and any particular expert might find the symptom onset of relevance in expressing an opinion. 

So, consider an employee ill in 2020. A test is performed and COVID-19 diagnosed. The employee is obligated to report this to the employer, subject to some exceptions, by section 440.185(1):
"An employee who suffers an injury arising out of and in the course of employment shall advise his or her employer of the injury within 30 days after the date of or initial manifestation of the injury."
Note this is the notice provision cited by the Legislature in the statute of limitations, section 440.19, above. But, is it possible that the employee might not make an immediate mental connection between the COVID-19 diagnosis and work?

This may be where the "knew or should have known that the injury or death arose out of work" of section 440.19 might be argued. It is possible, perhaps, that an employee might reach conclusions regarding the cause of infection after the passage of some time. Might that require two years? Might an employee reach such a conclusion and yet defer notification of the employer because of distraction with other concerns of daily life, quarantine, return to work, etc.? Might an employee be determined to have reached that conclusion in 2022, or might it be determined that in 2026 the employee "should have known" that the 2020 exposure "arose out of work?" The implications of such determinations on compensability determinations may be critical. 

How will these factors appear in the community of Worker’s Compensation? The statute also demands objective medical evidence. In that context, is it practical for a worker to "know" the cause of such an illness without scientific proof? As symptomatology persists in some categories of patients, might more scientific focus be directed at the underlying COVID? As time passes and physicians or scientists are less required for vaccine development and acute symptomatology treatment, might more science become focused on the lingering impacts, the so-called long-COVID?

As time passes, will it become increasingly difficult to document dates of symptom onset regarding COVID? Might an employee find out from an antibody test that she/he must have had it at some point (asymptomatic), but having never had symptoms perhaps struggle with the onset, the "knew or should have known," and the burden of proof? Perhaps of little concern for some, but if that previously infected person faces significant "long-COVID" effects in 2026?

In the context of the scientific standard established in Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993), Might it require some time for science to provide the study, analysis, and peer review for making causation determinations? Until that peer review can occur, is there any way a lay person could effectively "know" about causation in this setting? Might symptomatology in 2020-21 later be determined to be related to COVID-19? Could a convincing argument be constructed that such a causation connection was not practical or even possible without medicine that evolves or develops in later years?

WebMD reported recently
"About 33% of COVID-19 patients who were never sick enough to require hospitalization continue to complain months later of symptoms . . .."
However, many patients who suffered mild infection are said to "have these persisting and really life-altering symptoms." The challenges from this infection may be grinding to a slow halt here on what I consider to be the one-year anniversary of this pandemic. It was St. Patrick's Day 2020 that the impacts first began in earnest for me, though I began monitoring the infection's progress in early January 2020. As we face decreasing infections, increasing inoculations, and public sentiment that is seemingly simply "over it," perhaps the immediacy of treatment and fear lie behind us. 

In front of us, however, lay the potentials for complications and ancillary care issues. Those thousands of COVID-19 claims that were accepted as work related in various jurisdictions may become greater concerns due to such long-COVID. The future of those claims may be implicated by either limitation or repose. As we return to our busy lives, and there is no apparent need for ongoing COVID treatment, might those legal implications have impact before the so-called long-COVID symptoms someday appear? Perhaps these musing are of no import. But, perhaps there will be litigation over such symptoms, knowledge, science, testing, repose, and limitations in years to come. 

Sunday, March 14, 2021

For the Mere Sake of Form and Style

In 2019, the Kentucky Supreme Court rendered Commonwealth v. Roth, 567 S.W.3d 591 (Ky. 2019). The subject of the case is essentially the challenges faced by a prosecutor. The court's decision leads with an outstanding paragraph quoting earlier decisions, one dating to the 1970s. The decision is worth reading in the context of understanding the appellate process, and frustrations with process. However, the broader context of lawyers and procedural rules is worthy regardless of the specific context.

The analysis begins with:
"It is a dangerous precedent to permit appellate advocates to ignore procedural rules. Procedural rules ‘do not exist for the mere sake of form and style. They are lights and buoys to mark the channels of safe passage and assure an expeditious voyage to the right destination. Their importance simply cannot be disdained or denigrated.’"
The Court's sentiment is perhaps right on the mark. These thoughts are conspicuously specific as to "appellate advocates." The Court proceeds, however, in a more general manner:
"Enforcement of procedural rules is a judicial responsibility of the highest order because without such rules ‘[s]ubstantive rights, even of constitutional magnitude . . . would smother in chaos and could not survive."
That is a bit colorful perhaps, "smother in chaos?" Perhaps some poetic license, but no doubt there is a kernel of truth in that statement. It would perhaps not be fair to discount it too readily.

In appellate court proceedings, it is common for each party to prepare a brief. This is simply a written explanation of why that party believes the trial judge was wrong; it documents what happened in the trial court, and explains why the party believes that the appellate court should provide relief. Writing an appellate brief can be a chore, a lesson I learned more than a few times in my legal practice. I recently looked through some of my old briefs and cringed periodically. I was not beyond the challenges of hyperbole, and perhaps even approached sarcasm at times.

There are two parties (at least) in cases, and that remains true in the appellate setting. The "appellant" is seeking action by the court, the "appellee" is likely asking the court to allow the trial decision to stand. However, there are times that the appellee is as upset as the appellant and seeks more than simply denial of the appellant's desires. In those settings, the appellee may also be the "cross-appellant," defending in some manner, but seeking relief in others.

Regardless of which role a party or attorney undertakes, there is genuine strength in clarity, brevity, and articulation. In this particular case, the appellate court noted that its rules required a "Statement of the Case" in which the appellant is to "recit(e) the facts of the case 'with ample references to the specific pages of the record.'" This allows the court to readily verify the facts by reference to that record. The Court noted that such references within the "argument" section are also advisable.

The casual reader might cringe at such a requirement. Facts are facts, you might say. And, it might seem incredible that some party or lawyer might misstate or mistake some fact in the course of argument, but that does happen. Reference to the record is critical for the court, but making those citations is critical in the writing also as it causes the author (lawyer or party) to verify that what they recall or perceive is actually there in the record. It is an exercise in fact-checking, and is valuable.

What the court noted in this cases it that the "The Commonwealth’s brief. . . plainly failed to comply" with the rule regarding record citations. The court found this inappropriate under its rules, and concluded that the best course was "to strike the . . . brief." That resulted in there being no written argument in support of the appellant's (the state's) request (appeal) for the appellate court to take action. Therefore, the court concluded it was "necessarily require(d) (to) . . . dismiss the Commonwealth’s appeal." The state lost its appeal because its' lawyer did not follow the rules.

It is possible that the absence of record citations alone might not have led to this result. However, the court recited a series of other small errors that were documented in the process that led to its review. This included mistaken labels, failures in clerical work, and not providing the court with sufficient copies of documents. But, the primary focus of the court's opinion is on the absence of citation to the record. It was critical, noting that the attorney "did not make a single citation to the record in support of (the state's) factual assertions."

The court noted its "obligations" when reviewing a "trial court proceeding." It strongly reminded that "It would be an abdication of our constitutional duty as a reviewing court were we to accept on faith the factual assertions as summarized in the decisions of the reviewing courts below." It is in support of that obligation to verify and confirm that the "rules requir(e) pinpoint citation to the record." Without that, the "court 'must sift through a record to [find] the basis for a claim for relief.'" And, that "sifting" is simply not the job of the appellate court.

The opinion is not unanimous. The dissent explains that dismissing the appeal was within the court's authority. However, the dissent essentially argues that despite the authority to do so the court should not. This judge argues that the record in this case was not voluminous and that the trial court's conclusions were documented. The judge therefore found "the Court’s response here disproportionate and inappropriate." Without "condon(ing) or ignor(ing) deficient practice," the dissenting judge suggested that some other sanction, financial or directive, would be more appropriate.

Reading the court's analysis and the dissent brings back many memories of trials. I can recall so many lawyers who elected not to follow the Rules of Procedure for Workers' Compensation Adjudications. There were many who elected to ignore the requirement to file a trial memorandum (60Q6.116(7)). I recall the lawyers who would submit hundreds of pages of medical records, often duplications, and would have no reasonable justification of argument to do so (60Q6.121(4)). The "sifting" required by voluminous records significantly distracts the trial judge, wastes time, and violates the rules. Is it so unreasonable to require parties to spell out the trial issues, and to provide necessary documents without reams of duplicative, irrelevant, materials?

There are many examples documented of failure to follow procedural rules. But, the Florida workers' compensation law is intended to be decided on the merits. Perhaps all laws are? The Florida courts have periodically reminded the judges of compensation claims of that in regards to workers' compensation. A good example is the Supreme Court in U.S. Sugar Corp. v. Henson, 823 So. 2d 104, 109 (Fla. 2002)(“the specific intent of the Legislature that workers' compensation cases . . . be decided on their merits.”).

There is perhaps room for discussion regarding sanctions for rule violations. On one hand, it is troublesome to see a party's case or appeal decided by their (or their lawyer's) failure to follow the rules. However, it is often reasonably simple to read and follow those rules. To the extent that judges do not enforce those procedural rules, those "lights and buoys" are arguably diminished for the offending party and for all. One wonders if the Kentucky Court is correct that the outcome of such acquiescence is that we all "smother in chaos and could not survive?"

One may wonder if we would actually smother, and about "justice." Is it justice when a party loses for failure to follow rules? It is justice when a party ignores rules to the detriment of other parties and the litigation system? Perhaps it is our balancing process that leaves much to parties' perceptions and causes angst to all? It is an interesting discussion and worthy of consideration.