Tuesday, November 30, 2021

Learning from History

We hear it all the time. Systems or processes are overwhelmed and there are dire predictions regarding potential scenarios in our future. People argue for resource allocation based upon circumstance and their prognostications for the future. It is somewhat reminiscent of the assiduous hurricane preparation we witness the year immediately after each "big one," followed by a steady retreat to complacency as we lose our appreciation for the severity of what we have lived through.

Imagine hospitals overcome with too many patients. Imagine a scenario in which hospitals would pitch tents in an attempt to accommodate an epidemic "in every state." Imagine a situation so dire that staff is stretched and strained, overtime becomes a necessity, "friends and family" are precluded from visiting those in the hospital, and facilities turn to "canceling elective surgeries." OK, it is 2021 and no one needs to imagine any of that. If you lived through the great pandemic anywhere but under a rock, the recent reality is all-too-well-known. The oxymoronic juxtaposition of the last 18 months, our reliance upon medical professionals and others, and the current push to separate the uninoculated from employment is challenging in this context. 

But, consider that all of those effects were quoted in an article well before SARS-CoV-2 came to call in 2020. All of those dire consequences were a reality in America in 2018 as an "influenza epidemic" swept through our midst. It was "especially bad" and the system was "overwhelmed," Time reported in January 2018: Hospitals Overwhelmed by Flu Patients Are Treating Them in Tents.

Facility managers complained that they were “managing, but just barely.” Facilities were described as "inundated" and medical appointments were unavailable. States declared emergencies. Tents were pitched and care was rendered in "places where we normally wouldn’t, like in recovery rooms.” Emergency rooms were overwhelmed. Facilities strove to handle the "surge" in viral complaints, including the flu. I do not recall much news coverage of that urgency. 

There were staff shortages. Nurses pulled from other departments to care for the virus patients. Schedules were altered, and enhanced pay offered to cover the needs. Extra shifts were worked, and some described the situation as "difficult and overwhelming." And, it was essentially the flu. The great flu epidemic of 2017-18 was a challenge. And, one might think, a learning moment. A year later, there was reflection in 2019 on the lessons. Healio reported Bad Flu Season Tests U.S. Hospitals.

It reported that hospitals had learned from the 2017-18 challenges. However, the article lead with concerns that "America’s health care systems would still be seriously challenged by another bad influenza season." There was lamentation of a lack of funding and preparedness for events like the 2017-18 influenza "surge," which impacted an "estimated 48.4 million people." There was, it seems, history occurring around us, but without our noticing too much. 

There were also lamentations regarding the need for people to be vaccinated. There was praise for hospitals that had begun vaccination programs for employees, though no mention of mandates, terminations, or recriminations. Prevention was stressed as a critical element in the effort to manage treatment resources. However, there was not discussion of masking, social distancing, or hand-washing. As a non-physician, I lack qualifications to make such recommendations, but washing hands and maintaining distance seem minor accommodations to prevent illness. I was admittedly surprised that such precautions did not merit discussion. 

One expert was quoted regarding the failure to plan. He lauded those hospitals that had persevered through the 2017-18 influenza because "they had a pandemic preparedness plan in place." He describes how that thinking and planning had benefitted those engaged in managing care facilities. One critical element that was noted was for patients "to be discharged as promptly as medically appropriate to make sure there were enough beds available." One might wonder if discharging patients when medically appropriate is ever not the right answer? Is that really just an urgency/emergency thought? Or, is that what "medically appropriate" means? In non-surge, is there a tendency to retain patients beyond what is "appropriate?"

The 2019 article warned that "hospitals may not be prepared for an influenza pandemic." It warned of a "tight" supply of hospital beds. It noted that "Intensive care unit facilities are finite, ventilators are finite, the staff that is knowledgeable about managing patients on ventilators is finite." That remains persistently true, all resources are by definition finite. One expert warned that in the event of "a major new pandemic influenza virus," facilities and resources would be "very, very challenged.” And, that came to pass in 2020. Throughout a long experience with SARS-CoV-2, we witnessed stretched resources, overwrought personnel, and a multitude of challenges. 

There was discussion of "surge capacity." This is "unused capacity just sitting there waiting for a crisis to happen.” One expert explained that the investment in "overbuilding . . . capacity" for a potential sporadic spike in demand may not make financial sense. That capacity has cost all the time, though it may be used little or even none of the time. Will students study for medical careers if the supply drives down compensation in those fields? Despite the financial challenges of preparedness, the article noted the 2017-18 flu season “brought preparedness issues to the surface" in that regard. But, there was no rush to build capacity. 

The authors were critical of federal funding. They lamented physical facilities and personnel shortages. There was criticism for the manner in which "medical surge strategies" were developed and coordinated. In the end, there was criticism for the overall "funding for hospital or public health preparedness." Critics were broadly disdainful and asserted this widespread flu event illustrated challenges that are as important in any "surge" event though some other catastrophes may be more localized than a flu epidemic, more susceptible of addressing through outside help or patient transport. Thus, the "surge" impact could be localized or widespread, approachable in various manners, and essentially dynamic in impact or response. 

The recap concludes with the admission that predicting flu season severity is difficult. There was no prediction of COVID-19 or similar, so we might presume predicting such a pandemic is equally challenging. It lamented the lack of public understanding regarding the benefits of prevention (again no discussion of details such as hand washing or distancing), and warned that "an increase in hospitalizations by even just a few percentage points" could again push hospitals "beyond their capacity.” It warns hospitals that while responses may vary, "hospitals would find it more challenging and disruptive than if they were better resourced, prepared and rehearsed in implementing medical surge strategies.” 

In short, the recommendations were to study the 2017-18 influenza surge. There was recognition that facility and personnel supply may be outstripped by demand. Precautions and education were advocated, with a major focus on avoiding the need for medical care, and the burdens on the system. Thus, there was lamentation, prognostication, and prediction. And yet, the 2020 pandemic of SARS-CoV-2 and COVID-19 seemed to nonetheless catch many unprepared and unawares. 

It is important that these challenges were recognized, discussed, and forewarned before COVID-19 was a thing. Some of the predictions and foreboding came to pass in 2020 and beyond. Perhaps there will be more recognition in the wake of COVID-19. Like many, I do not recall the 2017-18 flu season. Despite the impacts it had, it did not impact me. Perhaps the broader impacts of COVID, the longer impacts of COVID, the deeper impacts of COVID will lead to improved "surge" planning, capacity, and preparedness? Or, perhaps with our hospital ships, field hospitals, and more we medically responded fairly effectively to the surge of a modern pandemic?

Sunday, November 28, 2021

Lloyd and Harry Wreaking Havoc

We are all focusing more on security, and the world wide web has become a staple of our challenges in this world. Within the past couple of years, I have proceeded from blissful unawareness to a critical focus on cybersecurity. I have been fortunate to run into some of the best and brightest engaged in addressing the threats we all face in the Internet domain. And, On December 15, 2021, I will host a morning at the Workers' Compensation Institute, at which a preeminent group of subject-matter experts will provide cybersecurity insight for the workers' compensation world.  

As my awareness of the topic has grown, I have addressed various concerns. I am focused upon this because we are all dependent upon the Internet. This community of workers' compensation has evolved, like much of the world, and is now utterly dependent upon digital data, and interdependent upon others in the systems. We see it in medical records, case-management reporting, adjusting, and more. There are vast quantities of data moving through the web to keep the world's workers' compensation benefits processes flowing, and all of that data is of potential interest to the miscreants that troll the web looking for some profit or advantage. 

Thus, there have been some posts about security; see Cybersecurity 2020's Hot Topic (January 2020); The Physical Premises of Cyber Security (August 2020); Your Cybersecurity is Your Job (June 2021); Cybersecurity Forum 2020 (August 2020); and, It Can Happen to Everyone (July 2021).

We even dedicated an edition of the Workers' Compensation Hot Seat to the topic in August 2020. That the Workers' Compensation Institute has decided to focus on this topic is telling. Over the years, it has become somewhat of a tradition that one hears of new challenges and solutions at the WCI each August. Sure, we are a little late this year in an accommodation to the SARS-CoV-2 and COVID-19. But, with vaccinations and other persistent precautions, we will gather soon in Orlando to continue that tradition.  

We are now all persistently focused upon the ether. There are so many threats to our data, coming from miscreants in the cyber world. We will have lots of discussion of that in December. But, in organizing for the December 15 program, my thoughts have returned to the physical world aspects. It is too easy to lose track of the physical threats of loss or theft that we all face from corruption or loss of flash drives, laptops, and servers. Yes servers. 

In July 2019, The Florida Supreme Court permanently disbarred an attorney in one of the most intriguing examples of identity theft I have ever read. The referee's report is interesting and descriptive, a harbinger worthwhile for anyone that is interested in our expanding digital present. There are those in Cybersecurity who repeatedly warn us that our human elements are the greatest threat. They typically refer to someone in your office making an error, clicking on a deceptive link, or similar. But, what if you work with someone that is a simply a bad actor?

In The Florida Bar v. Brady, SC19-39, an amazing recitation of facts illustrates again the physical challenges of cyber security. Following testimony and argument, the referee concluded to recommend that the attorney involved "be found guilty of violating each of the seven rules as alleged in the Bar's Petition." There is interesting discussion of preparation for trial, following instructions from the tribunal, and appellate process as well. Any attorney interested in the Florida disciplinary process would do well to read the report issued in this unpublished Court decision. 

The attorney in this matter was an employee of a law firm, but was terminated. Soon thereafter, the attorney established a website with a very similar URL (uniform resource locator, the "www" that you use to find a website). With that close similarity, this lawyer established a web presence that looked a lot like the law firm he had just departed. The owner of the real law firm, the attorney's former employer, eventually managed to get that new website closed through a court proceeding and injunction. But, for a while the law firm owner had to contend with essentially a usurpation of his business' identity. 

The former associate that was terminated also filed information with the Florida Secretary of State to incorporate a business under the webs site URL name, the very similar law firm name, but that attempt was rejected as too similar. The lawyer nonetheless made contact with some opposing counsel in existing cases. He communicated that he was now "the lone true owner of" that law firm and directing future communication to himself. Thus, in a few subtle maneuvers, this attorney strove to capitalize on someone else's identity and misdirect communications and data to himself.  

But, he was not done. The attorney next resorted to simple burglary. In a scene that one might think could only be conceived by Hollywood, this attorney "and his twin brother," staged a "broad daylight" assault on the law firm (I have not named the attorney or the brother, let's simply refer to them as "Lloyd and Harry," fictitious names for convenience). Unfortunately for them, surveillance video captured the scene. See Assume Everyone is Watching (September 2015), cameras are everywhere. 

Lloyd and Harry (not their real names) backed a "truck up to . . . (the law) firm." They tied "a rope from the truck to the front door," and "rip(ped) the front doors open." They then removed "two sizeable items from the law firm," the "firm's safe," and "the firm's computer server." Thus, a physical assault evolved into a cyber attack in a somewhat spectacular manner, on video. In the event the video was not sufficient, the former employee attorney sent the owner of the law firm a text message confirming the liberation of the data storage. 

The law firm owner sought and was granted equitable relief from a court. There were injunctive orders entered precluding the former employee lawyer from "interfering with his business," or even making contact with the firm or its clients. But, the harassment did not end. The referee noted that this attorney eventually was "held in contempt on three separate occasions by the Circuit Court for intentionally violating this injunction." There is description in the referee order of ongoing behavior including "false and unauthorized (legal) filings," and even "forg(ing) another attorney's signature." 

The referee makes specific reference to one such filing as "patently false" as well as "a flagrant fraud upon that court." In another instance, the attorney sought to solicit the business of a client represented by the law firm that had terminated him. When that business declined to hire the attorney, he proceeded anyway to sign and file documents "in various pending . . . cases handled by" that law on behalf of firm clients and to assert that he was personally "entitled to fees from those cases."

Thus, the operation of a law firm's business was interrupted and inconvenienced. The contrarian individual committed acts that either procured the business' data or deprived the firm of that data, the theft of the server. Not addressed by the referee is whether the data on that server was backed up to allow the firm to continue to function or encrypted to prevent the miscreants of the world from harvesting that data once in possession of that server.  As easy as it may be to envision the loss of a laptop or flash drive containing a trove of data, the idea or a physical theft of a server from an office may come as a surprise threat to some readers.  

The referee recommended permanent disbarment  in this instances, and the Florida Supreme Court agreed. The referee cited to various precedents involving "conduct prejudicial to the administration of justice," "inability to maintain personal integrity," and more. The referee examined potential for mitigation in the facts of the case, and noted that the attorney had never been disciplined for violative behavior previously. 

The referee made particular mention of the server theft. This was characterized as "an intentional interference with the administration of justice" because the theft presented "the potential to hobble the firm's practice entirely." This is a recognition of the critical nature of data in our modern world and businesses. The actions "caused significant injury to" the server's owner and the law firm, but also "indirectly, his clients." The owner of the law firm substantiated this harm in his testimony before the referee, and the referee noted that the former associate attorney "clings to his justification for his actions with a ferocity that is quite disturbing." In short, it appears that some people believe strongly in their right to interfere with or take the data that belongs to others, to you perhaps. 

No doubt, our inboxes or spam folders are often inundated with phishing emails and worse. The bad actors are striving for us to make mistakes, click links, or otherwise grant them access to our digital data. But, there is a physical security involved with all of this data as well. Are physical premises appropriately secured? Is information encrypted and protected from the loss or theft of some storage media like a flash drive or a laptop? Have you even considered the potential for someone to rip to the office doors away with a truck and drive away with your server, data, and more?

Cybersecurity continues to vex and challenge us. I look forward to speaking with you about the subject as I introduce a stellar succession of speakers on December 15, 2021 at the WCI. See you there. 

Tuesday, November 23, 2021

Fentanyl is Killing, Still.

The Guardian recently published an expose of drug overdose in America. The glacial pace at which we have come to grips with this crisis is intriguing and disappointing. The story is titled "How fentanyl is unfolding as one of America’s greatest tragedies." Fentanyl is a powerful synthetic opioid. Despite some voices alarmed with opioids, it is a pandemic that has run largely unabated. I have posted on the topic a few times, many of which are linked in Florida's 2018 Session - Opioids (March 2018). Drug overdose is killing Americans.

How many? In Contemptuous? (October 2021), I noted that drug overdose deaths are increasing. Forbes announced in November that deaths in 2020-21 are up 28.5% over a year prior. The overdose death toll in that period is thought to exceed 100,000 Americans. It says that roughly two-thirds of that, 64,000, are thought to be due to Fentanyl. Will the numbers matter? Forbes suggests that there are "some promising signs."

Forbes notes that following the investment of tens of millions of dollars, there has been:
"a 28% jump in the distribution of (Naxalone) medication in Pennsylvania."
"a new first-of-its-kind online portal to provide naloxone via mail order (in Michigan)"
"greater access to medical treatment for opioid use disorder, especially in prisons."
While 2020 "overdose deaths were up 16% in Michigan and Pennsylvania, these increases were significantly lower than the approximately 30% average increase seen nationally." Thus, there is progress or success seen in increased distribution of other drugs and overdose death increases of only 16%. The promising signs are that with huge investments, the growth rate in deaths could be cut in half?

The Guardian article features a 13 year old tragically taken by Fentanyl. A budding young life engaged in a community and preparing for an exciting school year. The young person had undergone a surgical procedure and was in pain. Rather than engaging a parent or the surgeon, this young person sent a "message on Snatchat" and sought marijuana. The dealer that responded offered "something better: Percocet." But, what the student received was "a counterfeit laced with fentanyl." It killed him.

The Guardian notes that supplies of fentanyl are up across the country. The contention is that the other pandemic, SARS-CoV-2, is driving demand. As Forbes puts it the COVID "pandemic uncovered and perhaps worsened a lot of underlying existing problems in society." Life, it seems, is hard and full of challenges. The onset of the SARS-CoV-2 fears, lockdowns, isolation, unemployment, and more exacerbated those challenges for many. Thus, bad situations were worsened by both infection and government reactions to it. The contention is that these stresses led to more drug use, and thus the perils of overdose. 

There is lamentation of the supply and potency of fentanyl, though heroin and pain pills are noted also. They are referred to as "a triple wave" of opioids. But, fentanyl has a primacy because it is so potent and so profitable for dealers. The Guardian article laments that a "single fatal encounter" by "people who have never used opioids" is killing people. Those folks "don't know that these drugs are contaminated" with fentanyl. It is difficult to understand how someone who has "never used opioids" makes a decision to turn to drugs obtained illicitly. Perhaps it is through some faith in the safety of what they believe is a prescription drug merely misdirected.

Further, even "those who are accustomed to taking opioids" may find it "difficult to judge a safe dosage of fentanyl." It notes "alarming numbers of people, even children, (are) taking what they think are legitimate Percocet or Xanax pills with friends." This suggests that there are repeat users of pills the obtain from sources other than pharmacies or physicians. Despite their experience, and their familiarity with what some pill is supposed to legitimately look like, they are being fooled into substitutes that are deadly. 

This is troublesome to some, tragic to many. People are literally dying because they chose to ingest substances that are dangerous. They are seeking some outlet for pain or discomfort. They lack the knowledge to judge a non-fatal dose. They are being preyed upon by dealers seeking profit at their expense. And, while there are many challenges in this world, few are both (1) killing over 100,000 Americans each year and (2) entirely preventable.

How is it that a thirteen year old can use Snapchat to seek marijuana? We hear of the perils of social media, but in this instance is it merely a medium for a conversation that could occur on a street corner instead? How is it that a child finds post-surgical pain and the immediate reaction is not a conversation with a parent or further care from whomever performed that surgery? How is the first reaction finding some marijuana for the pain? Has society's posture on recreational pharmaceuticals influenced a generation? How is the focus on how authentic the fake medication looks, and not on the real question of why people are putting any opioid into their system? More importantly, how many people will die before this crisis ends?

The Guardian concludes that the crisis is "causing devastation.” It notes that help may come to "those who are addicted" from taking other medications. Or, that overdose may be reversed by administration of medication that reverses opioid effects. There are even "test strips" to detect "fentanyl in other drugs." Is is rational to believe that those who find their personal path leads to illegally obtained pills will take the time to use test strips? Will we generate enough publicity that teenagers will know to use such test strips? Will the dealers take the time to verify the safety of their product with test strips?

The Guardian concludes that drug overdose will continue because it is a symptom of an inequitable society. One source cited advocates for overcoming "instabilities," warning that "civilizations do fall if they don't." The sentiment of the article is that if people had more, did not have to work hard, and could enjoy the easy life that resort to such substances would decrease. The bad news is that there is no easy life. Certainly, some lives are easier than others, but all of them are full of stressors, complications, disappointments, and worse. 

I do not pretend to know what the answers are. But, it seems like we are reaching a tipping point. You can only suffer 28.5% increases annually for so long. At that rate of increase, Opioid overdose will be killing a million Americans a year within the next decade. Without knowing the answer, it seems fair to suggest that we need to find some answer. In the meantime, the vulnerable in society will likely keep looking for answers on Snapchat and finding solutions that are way too permanent. 

Sunday, November 21, 2021

Don't Text and Depose

We have each sent an email, text, or other communication to someone in error. It happens to the best of us, even the generations that are far more adept at technology than I. We get in a hurry, we get distracted, and we just plain make mistakes.

The Florida Bar filed a complaint against a lawyer that related to text messages. That they were sent to an unintended recipient is not the crux of the matter, but it played a role nonetheless. In SC20-128, The Florida Bar complained, a Bar grievance committee "found probable cause," and the matter proceeded before a referee designated by the Florida Supreme Court.

According to the complaint, an attorney was engaged to represent the defense in a workers' compensation proceeding. During a telephonic deposition of the insurance adjuster, the defense attorney was alleged to have "surreptitiously sent text messages to the adjuster regarding her testimony." These messages "included coaching and specific directions on how to respond." Claimant's counsel noted the "typing sounds" and asked if attorney and witness "were engaging in texting," which defense counsel denied; defense counsel asserted that he was instead texting with his daughter.

The claimant's attorney nonetheless asked that texting cease, and counsel allegedly agreed. The defense counsel later allegedly "inadvertently sent a series of text messages, intended for (the adjuster), to" claimant's counsel. At that point, claimant's counsel was reasonably convinced something was going on. A motion was filed, and an in camera inspection was conducted of "the texts sent and received." The assigned JCC concluded that the texts sent "were not protected by attorney-client privilege because they dealt with 'testimonial matters and some of them constitute witness coaching.'” Thought the judge ordered all texts produced, those supposedly between counsel and daughter never were. 

The Bar alleged that the messages sent by defense counsel were violations of Rules Regulating The Florida Bar: 3-4.3 Misconduct; 4-3.4 Fairness to Opposing Party and Counsel, and 4-8.4(d) Conduct Prejudicial to the Administration of Justice. The referee recommended that the attorney be found guilty, except as regards 4-8.4, and that a thirty-day suspension be imposed as punishment. Thus, the referee, a Florida trial judge appointed by the Court to hear the allegations and make recommendations, concluded that such behavior was not "prejudicial to the administration of justice."

The Bar sought review from the Supreme Court, which rendered its opinion on November 18, 2021. The Court agreed with the finding of guilt, but also concluded the circumstances did violate Rule 4-8.4(d), noting "that dishonesty in connection with the practice of law is prejudicial to the administration of justice." It noted referee findings that statements were "misleading and a matter contrary to honesty," and that the attorney "misrepresented" that the texting had concluded when it had not. Honesty and misrepresentation are serious conclusions of the Court. 

The Court noted that this attorney felt that workers' compensation "proceedings are informal" and therefore "felt compelled to aid his witness during the deposition . . .." The Court noted that thereafter, the attorney strove to convince opposing counsel that texting was "during the break, not during the deposition." It concluded that the attorney "failed to be transparent and forthright with the judge regarding his texts . . .." The Court addressed Rule 4-8.4 and concluded that the texts were "dishonest." It noted that they included advice "to avoid providing certain information," and "to not give an absolute answer." This, the Court concluded, violated Rule 4-8.4.

The Court noted that the referee recommended a thirty-day suspension. It noted that the behavior was:
"conduct aimed at defeating the opposing party’s lawful attempts to obtain evidence, undermining the adversarial process, and as a result, the trial court’s (JCC) intervention was required."
Furthermore, that the attorney "then made misrepresentations to cover up his misconduct." It noted that the conduct included he "repeatedly misrepresented," and that his "failure to be forthright with the Judge of Compensation Claims" was "particularly egregious." See Candor, Omission, and Persuasion (October 2021). It concluded therefore that the appropriate punishment was a ninety-one day suspension from the practice of law. In addition, the attorney was ordered to pay The Bar $2,851.80 in costs related to the inquiry into the matter. The Court was unanimous in its conclusions regarding the three rules that were violated. 

Two Justices dissented in part. This opinion noted the "very serious nature of . . . (the) misconduct." However, the Justice would have concluded to accept the "referee's recommendation to impose a nonrehabilitative suspension." The opinion noted that the recommendation for punishment "was largely based on credibility determinations and an assessment of . . . demeanor." Concluding that the recommended thirty-day suspension was "consistent with our precedent," and that the referee was best situated to determine the credibility, the dissent would have adopted that 30-day suspension recommendation. This is consistent with the deference of appellate courts to trial judge fact finding. 

For many readers, the Court's phraseology may engender curiosity. What is "nonrehabilitative suspension?" The Florida Bar Journal featured a story in early 2021 that provides both explanation and edification: Florida's Lawyer Discipline System - What Every Attorney Needs to Know. This describes a number of potential punishments that the Court might impose for lawyer behavior, from disbarment down to admonishment or even probation. It provides a clear explanation of the suspension process:
"If for '90 days or fewer,' the suspension is labelled 'a nonrehabilitative suspension.' following such a suspension, the lawyer 'is automatically eligible to practice law,' so long as 'all other conditions of the suspension order have been satisfied.' There is no process or permissions needed, no 'approvals required.'"
Thus, a nonrehabilitative suspension would be a significant interruption in one's legal practice. It would necessarily involve another attorney taking over the representation of clients, and protection of their interests. It could impact income and the acceptance of new clients. Although, there have been instances in which a suspended attorney continued advertising uninterrupted for new clients. Some see incongruity in that, but it perhaps makes sense in the nonrehabilitative instance where an end-date is known. 

Then, there is the rehabilitative suspension. The Bar Journal article explains:
"The suspension for '91 days or more is a rehabilitative suspension.' To return to the practice of law following such a suspension, the 'lawyer (must) . . . be reinstated to the practice of law by the court after showing that they have been rehabilitated.'"
Thus, a more significant interruption is patent, simply in the duration, though that increase may be seemingly slight (91 days versus 90 days, one day), but is significant. The rehabilitative process requires the
"lawyer must file a petition for reinstatement, undergo an investigation, establish to a referee that the lawyer has been rehabilitated and is not otherwise disqualified, and be reinstated by the court."
It is probable that such a process will be time-consuming and that a 91-day suspension could effectively be significantly longer. As reinstatement is not automatic, the potential exists that a lawyer sanctioned with a rehabilitative suspension might not ever return to the practice, might not satisfy the Court of their contrition and rehabilitation. As Dinah Washington sang in 1959, "what a diff'rence a day made." 

The take-aways from the Court opinion are clear. First, do not text and depose. Coaching a witness in this manner is inappropriate. In a virtual world, there is undoubtedly frustration with our environment and our surroundings. Many have taken to the "chat room" during meetings in which getting a word in edgewise is impractical. More than one has likely resorted even to a text or an email beginning with "what do you think of _____ instead?" But, in the context of a deposition, that text or email is as inappropriate as would be whispering in a witness' ear. It is wrong, coaching, and should not be done or condoned.  

Moreover, lawyers are not supposed to misrepresent and they are supposed to be forthright with the judge. When they misrepresent, or are not forthright, such "dishonesty in connection with the practice of law is prejudicial to the administration of justice." This is a justice system in which the parties are afforded the opportunity to be heard regarding their claims and defenses. There is value in truth. All parties should strive for the truth. Lawyers are bound by it. In the end, the justice system works largely upon the shoulders of attorneys. Judges have to rely upon attorney representations. See Candor, Omission, and Persuasion (October 2021). 

Truthfulness is critical. Forthright responses are critical. The administration of justice depends upon it, and the profession demands it. Lawyers must be trusted to be truthful and to demand it of others. Dishonesty is the fodder of bad lawyer jokes and a demeaning of the entire profession. Those who tolerate it demean us all and discredit the very process in which we strive to help people and to earn a living. Dishonor, no matter how brief or even unintended demeans the very practice of law. 

In the end, everyone has made mistakes. The very concept of "rehabilitation" expresses our hope that such mistakes can be overcome and rectified. In SC20-128, we hopefully see facts from which many can learn. Perhaps there are reminders there regarding candor, fairness, and obligation. Perhaps many would benefit from reviewing the Court's decision?

Thursday, November 18, 2021

Cyber Hits the News

Ransomware is a major component of the cyber threat we all face each time we touch one of these electronic devices. In a persistent and pernicious manner, the miscreants of this world find ways to leverage our failures, capitalize on our mistakes, and monetize their malfeasance. So much of theft that affects business has been traditional, in the world of bricks and sticks as it were. But the new age has brought new challenges aplenty.

A huge volume of informational "theft" is not about the thief possessing information, but about you being deprived of it. In the ransom setting, the thief may deny you access to your data in order to disrupt your business. Or, the thief may simply threaten you with the potential damage that could result in disclosure of your information. To a large extent, how the thief may strive to leverage you may depend in large part on how savvy, prepared, and reactive you are.

Make no mistake, there are those who are interested in flat out theft of your data. They would love to have it, refine it, and sell it out there in the dark underbelly of the digital world. If you are in possession of data such as social security numbers, home addresses, dates of birth, credit or bank account numbers, driver's license or passport numbers, then it may have value.

However, there is value also in depriving you of your data. Even a temporary interruption could affect both your ability to do business and the trust of your customers. In the first instance, imagine being locked out of your computer files. You might be unable to generate bills to your clients, unable to send/receive emails, check inventory, or deliver your services. Deprivation of your data could bring operations to a standstill. And, hours or days of staff time could be diverted to rectifying the problem.

What if you have been careful, proactive, and backed up that data? It is possible that you may be able to reasonably quickly restore your data from a back-up and restart your operation. But, despite that, may still face the reality that some miscreant out there is in possession of a copy of your important data. You may find yourself faced with the unenviable task of notifying officials, notifying those whose data has been breached, and your reputation may suffer in the process.

The impacts can be felt by anyone. And, the biggest threat is likely sitting in your office today. It is not a malevolent or ignorant employee. It is a valued employee that will make a simple mistake, click a miscreant link, and admit some worm or horse into your network. The malfeasants of the underworld do not care whose data they get. They will be pleased to find someone they can leverage for millions of dollars, but won't refuse to leverage someone for less.

In short, there is no business that is safe. There is no data that is undesirable or unworthy of their attention. But, the big hits make the news.

This all returned to my conscious in October when Sinclair Broadcasting quit broadcasting as normal. This is a big entity operating "300 stations across the country." Entities this large have IT departments and cybersecurity experts. They have software, training, and plans. And yet, they are vulnerable like we all are. Imagine the chagrin at becoming the subject of the news rather than just the purveyor of it?

ABC News reported "Sinclair Broadcast Group hit with ransomware attack." It described that there have been "at least two major ransomware attacks in the U.S. this year." This did not impact the company's ability to produce local news stories on the Internet. In fact, many of the stations owned by the company maintain regular web-presence in tandem with the broadcast news. Those pages are where many find the bulk of their daily local news. And, intriguingly, some of those pages did not carry the story that Sinclair had been hit, and their broadcast interrupted.

The attack was about disruption of the business. The attack was about the access to information. And, in a significantly public forum, the threat of cybercrime was on display for many. In the spirit of 1985's "I want my MTV," there were more than a few that exclaimed "I want my local news." Possibly, there were those who elected to change the channel and seek that news from competitors. Ransomwear and malwear can be damaging to business in the moment, and in the reputation.

Two? According to CNET, there have been five more "major" cyber events in 2021: Kaseya, JBS, Colonial Pipeline, Brenntag, and CNA Financial. Major, that is, but CNET does not list the Sinclair attack. It is fair to conclude that there have been many, many more that are not making the news, or reaching your ears. The threats are real and tangible. The big and small are at risk, and an entire industry is evolving to do battle with the miscreants, assist with recovery in their wake, address financial impacts, mitigate risk, and more.

The government is involved. As government tends to be, it is involved a bit too slowly, too reactively, and with limited resources. But, we are seeing standards evolve. There are requirements for protecting networks and data. There are recommendations and information for the taking. And yet, there is a vast amount of business inaction, inadvertence, and ignorance.

We aim to go after some of that at the WCI this December. On Wednesday, December 15, 2021, I will lead off a breakout on cybersecurity, a WCI first. We will have the stellar team from the Center for Cybersecurity at UWF with us. They are the premier experts on this threat in the southeast, and among the world's best. The center is designated by the NSA as a hub regarding such threat and response.

I will be joined by speakers providing the nuts and bolts of cyber presence and threat. And, the program includes an attorney discussing the liabilities that such threats bring to businesses great and small. There will be discussion of insurance for such challenges, and the intricacies that business faces in both obtaining such coverage and complying with the minimum basic standards to maintain coverage.

Is it workers' compensation? Not in the strictest sense. Does it affect everyone in the workers' compensation community? Absolutely, and without question. If you are in business, have data, or work with those who do, cybersecurity, insurance, compliance, indemnity agreements, and questions lie in your future. It is likely that they all lie in your present as well. It is time that you knew what you face and how you may prevail. I hope to see the audience full of curious faces December 15 as we start a workers' compensation community conversation about this subject. I hope you will be there. 

Tuesday, November 16, 2021

The Metaverse

As predicted in October, social media giant Facebook has changed its name to Meta. See The Metaverse is Coming (October 2021). Rebranding can be about a name change, or could just be focused on a logo specifically. Such efforts have been successful, but there have been some relatively memorable fails as well. Time will tell where this one falls on the spectrum, in terms of maintaining company loyalty and building the new perspective seemingly desired.

There seems to be some consensus that a metaverse is coming. It has yet to arrive, and already has critics. The virtual experience is going to include headsets, avatars, enhanced graphics and perceived benefits. There will be repetitions of the perennial cycle between software challenging hardware capabilities followed by new and expensive cards and capability, followed by more demanding software upgrades, and the cycle will be persistent. We have seen this with business software for decades. And, there will be demands for more bandwidth, faster Internet, lamentation for the underserved (yes, here in Paradise that 5G thing is science fiction in a "Galaxy Far, Far Away").

Some perceive that the metaverse is thus an eventuality. One critic recently penned a criticism for Inc. of the Facebook marketing regarding "its vision," and concluded that he's not "pessimistic about the metaverse, . . . just pessimistic about the idea of Facebook building it." The contention is that recent advertising reveals "everything wrong with" Facebook. Despite that, it is not an indictment of what Meta does or fails to do. It is a critique of Facebook/Meta's vision about social interaction. 

This describes the Facebook "grand vision" is "that people will spend hours a day wearing headsets, living and working in virtual reality." To illustrate this, the advertisement features two neighbors who don's get on so well in person, but become friends in the ether (even to include complaining online about each other, a stab at irony and humor). The article concludes "the ad is meant to be humorous, of course. It's not, but that's not even the biggest problem."

The criticism is about the draw of spending hours daily wearing a headset immersed in another world. The author blames social media generally, but Facebook specifically, for creating a false impression that loose online exposure to people's images, comments, and otherwise somehow "is a substitute for actually engaging with real people." He contends that such interaction "doesn't mean you have a relationship," and may not mean you even "know the person."

The connections established through social media exhibit that virtue and vice are sometimes inextricably intertwined. Our greatest strength can be our greatest weakness. It is exceedingly simple to become connected to people through social media, to perceive what they publish, their presence, and to not go through all that there is to building a relationship, or get to really know them. The very strength many find in the Internet is the ease of connecting, and that ease of "connecting" (and later dumping or ghosting) perhaps leads us into superficial and largely illusory "relationships" that pale in comparison to the real world.  That they distract us from the more present and real relationships is more lamentable. 

We need human interaction. We need community. And, for decades the busy and engaged have lamented that is is hard to meet people, to make friends, to maintain relationships. That challenge is met by social media, but with a superficial solution that builds superficial relationships. They are easy and frictionless, without consequence, disposable. But, they are likewise apt to each be worth exactly the what was invested in them - little or nothing. And, they may distract from the real and ethereal, the here and now. 

The Inc. article suggests disappointment that the metaverse vision addresses none of the criticisms that have been levelled at social media. One commentator says these include privacy, loneliness, ownership, and distraction. Those are likely worth consideration. Others contend that criticism of social media is merely the concern du jour, and like heavy metal and hip hop, concerns will fade. That may also be worthy. Is social media dangerous per se, or merely detrimental as a distraction, or just good fun?

Is there merit in asking questions about how we are "connecting" without really connecting? Is the superficial nature of social media and online relationship likely to become more meaningful in the metaverse, or as Inc. questions will it merely "be an amplified version of the kind of relationships people have been building online for years?" Is our community benefited, are we benefited by online interactions in which we might be unaware that our "friend" lives right next door?

Instead, some believe that there are challenges presented by the present situation. There are criticisms of social media. The experience is said to be manipulative, driven by artificial intelligence and algorithms. Some claim that it is designed to appeal to our brain's chemical response system (dopamine and more), and is particularly dangerous to people predisposed (such as the young). There have been discussions of protecting children from it, but little in the way of regulation or even public health recommendations. 

Would such recommendations matter anyway? We are in the midst of one of the greatest failures of the modern age with the Opioid scandal in our midst. Public policy protects us from it. Public information on its detriments abounds. Despite this, a vast population remains engaged in consumption and use even as they see the destruction and detriment suffered by those around them. Others remain engaged in methamphetamine, alcohol, and a variety of other challenges. Would frank discussion of social media perils be any better heeded?

The Inc. author concludes that the Meta ad likely portrays exactly what Facebook sees, "an accurate picture of what Facebook is building." But, he questions whether it is the message Facebook should want to send. It leaves the author "pessimistic about the idea of Facebook building" the metaverse.  

But, it ignores that perhaps what is being built, the superficial and the shallow, is exactly what people want. I know a great many who complain about social media, but very few who have walked away. Some remind me of friends who lamented cigarettes so bitterly, but always had a pack to share. People find themselves believers in what it delivers even as they criticize its weaknesses or failures. If they will not walk away from what is, why would anyone doubt the strength of an enhanced and goggle-cized expansion of the present?

What does it have to do with workers' compensation? A great deal actually. 

The vision for the metaverse is for it to consume your time, fulfill your needs. This is intended to include leisure, entertainment, gaming. But, it is also envisioned to include interaction, meeting, and collaborating. Those designing this "space" envision work being regularly conducted in the metaverse. The challenges of the environment may thus readily evolve into challenges of business, employment, and yes workers' compensation. It bears monitoring and ongoing evaluation. 

How work occurs is evolving. That will mean more remote meetings. Will hours a day in a headset lead to chronic injury (think of the ergonomic revolution in the 1990s), eye strain issues, accidental engagement (forgot to take of headset, neck jerked; did not see table, tripped and fell)? There may be future challenges in the area of work injury. Will the interweaving of virtuality and business affect work hours, fatigue, and injury? Will the mixture of work and more lead to issues regarding "course and scope" or "arising out of" and compensability?

Will business leap into this new paradigm? Will if bring strength, performance, savings, and profit? Will it bring complications, challenges, and injury? The future is coming, and it is potentially intriguing. 

Sunday, November 14, 2021

Perseverance and Poise

Usually, we gather each August in Orlando for the WCI. Some of us no longer remember why we gather. but we do. I will never forget a few years ago I ran into a retiree at the WCI and asked simply "what are you doing here?" The old, wise, lawyer said simply "its August Dave, and in August you come to Orlando, always have." There is much to learn, many with whom to connect, and so much more. It has been a regular part of my professional life for more years than I am currently willing to put down in writing. Suffice it say that it has been decades.

My favorite part of WCI, without any apology or hesitation, is the Zehmer Moot Court Competition. In the early days following taking the bench, I was honored and bit anxious when they offered to let me judge in the preliminary rounds. I have participated in many of the last 20 competitions, and even had the opportunity to write the problem one year. For whatever reason, they never asked for a writing encore, but this post is not about disappointment. It is about perseverance and poise.

This pandemic kicked everyone. Sure, some were kicked harder than others. I lament the many that became infected, hospitalized, and worse. It has been a downright tragic situation for so many. Against the backdrop of tragedy and tribulation, As Rick noted years ago, "it doesn't take much to see that the problems of three little people don't amount to a hill of beans in this crazy world." Casablanca, Warner Brothers 1942). That is so true even today. I am thankful for so much and must remind myself that I really have no problems. Sure, I still complain, but I really should not. I have been lucky to largely avoid the impacts of this pandemic.

Yesterday, I participated in the Zehmer Moot Court Competition remotely, virtually, clumsily. It is, after all, hard to teach us old dogs any tricks, new or otherwise. The great Moot Court Committee team did a fantastic job of putting on a virtual oral argument for 20 teams from across the country. Participants were confronted with the pandemic, an infected firefighter that passed away, challenges of causation, evidentiary standards, admissibility, public policy arguments, and much more. I did not get to see all the teams, but those competing in my two rounds were EXCEPTIONAL!

They were dealt a failed hand. That is often the case in the law. It is rare that you get a perfect set of facts, an unblemished record, a win/win situation. That, they say, is why it is called a "practice." See, the conference this year is in December, an accommodation to the COVID. We will be live and in living color at the Marriott World Center, December 13-16, 2021. We will be teaching, learning, trading stories, and interacting as in days of yore. I cannot adequately express how much I anticipate this opportunity. It is in December. That is hard to wrap the brain around, but that is a small accommodation. In coming days, I will be posting on some of the programs in which I am involved this year. 

A challenge with December, however, is that law students take their exams then. Unfortunately, they are more worried about those exams than their Moot Court argument (sarcasm, kidding). So, the undaunted committee set up a virtual prelim and elimination round for November. The judges, teams, timekeepers and all appeared via Zoom. We were blessed with exceptional help from a veritable gang of technical experts from The Florida State University School of Law. On a Saturday, the Dean herself tuned in to participate. I guess that is not that different than getting a bunch of judges to give up a weekend, but I was duly impressed. 

As a side note, I have known Dean Erin O'Conner for several years. Admittedly, that has been largely in passing. But, I have been persistently impressed with one facet of her personality - optimism. She simply does not believe in the word "cannot." She is a realist, but she is a leader. I was at one of the early meetings on this "virtual" plan, and she repeatedly uttered "we can work around that." Her aplomb and eagerness to make this thing work for the students has been persistently exceptional. I expect it could not have been pulled off without her attitude, team, and resources. The WCI is blessed with that partnership.

However, her attitude is perhaps no more exceptional than the attitude of the Moot Court Committee. Hon. Jacquelyn Steele has been doing this competition for longer than I can remember. That is a riddle, because I admittedly used to able to remember further back. Getting old is both a blessing and a curse. However, Judge Steele has been involved a long time. She has partnered all those years with Tracey Hyde, who practices workers' compensation in Panama City and beyond. Amy Deguzman practices in Jacksonville and completes the triumvirate of the team. They have support, and there are others involved. But, year after year, competition after competition, these three keep producing a world-class program for great students. They solve the problems, overcome the challenges, and keep it about the students. They are exceptional, dedicated, and outstanding. Someone should recognize them publicly, thus this post. 

Certainly, one of their major supporters is Richard Sicking. He generally writes the problems. And, each year before arguments, he provides an overview of the intricacies of the problem. This year, his overview started in Germany in the 19th century, proceeded through the Triangle Fire, unions, and more. It was a history lesson long on ancient history. Some lament his starting so far in the past, but it is understandable. Richard is one of the few left among us that was actually alive in the 19th century. He literally has forgotten more about workers' compensation than most people will ever know.

The competition teams were likewise outstanding, demonstrating that today's students have faced the fact that pandemic means change. They have adapted, and persevered. More importantly, they have done it with pride and poise. The looked into those cameras yesterday and they did the job attorneys do in appellate practice. I was proud of them, the committee, and the many volunteer judges that tuned in and made it work. The gathering in December will be the first WCI without a live moot court argument in decades. Confronted with a challenge, however, the committee pulled off a great alternative. I am grateful to everyone involved for proving that we are bigger than COVID, stronger than COVID, and that we will persist despite its challenges. 

I hope to see you in December. I look forward to being a community again, though there will still be much sanitizing, and distancing. I will strive to greet you and shake hands, but if you are troubled by that, please just says so. I am happy to accommodate whatever precautions you need, and we can speak from 6 feet if you prefer. I will enjoy just speaking with you at all. Welcome back to a live event of epic proportions. I look forward to seeing you soon. 

Thursday, November 11, 2021

The Apex Doctrine

In August 2021, the Florida Supreme Court adopted some changes to the Florida Rules of Civil Procedure, In re Amend. to Fla. Rule of Civ. Proc. 1.280, 324 So. 3d 459 (Fla. 2021). The topic is one of general interest, though the Rules of Civil Procedure do not apply in Florida workers' compensation except to the extent those rules are specifically adopted, see Rule 60Q6.114, particularly (2)(a):
"(2) Depositions. (a) Depositions of witnesses or parties may be taken and used in the same manner and for the same purposes as provided in the Florida Rules of Civil Procedure."
The amendment in August addresses what has come to be known as the "Apex Doctrine," a protection of sorts for "high-level corporate officers" faced with "the risk of abusive discovery." Of course, discovery is the process through which the various parties to a case learn more about situations, facts, and each other personally. When lecturing college students, I liken it to the exchanges people tend to have on first dates, or perhaps the series of early dates, that begin relationships. It is a process of learning more about each other.

There are general standards regarding the obtaining of discovery. It is not limited to "admissible evidence" or even "relevant evidence." Discovery is instead limited in Florida only to inquiry that is "reasonably calculated to lead to the discovery of admissible evidence." Suzuki Motor Corp. v. Winckler, 284 So. 3d 1107 (Fla. 1st DCA 2019). The Winckler decision was not unanimous in the District Court. The Supreme Court, in addressing Rule 1.280 in August referred to Winckler as "the impetus for our decision to take up the apex doctrine." That decision was before the Court upon certification from the District Court, but rather than decide it, the Court elected to publish a Rule change. 

This suggests several points. First, a Rule Change is of broader public import. Certainly, lawyers would note and understand a court decision (common law) broadening the doctrine, but a Rule is published in black letter for any and everyone to easily find and perceive. There are benefits to rules. Second, it illustrates the flexibility a court has to effect public policy in a broader context than merely when a case is before it on either direct appeal or certiorari (one of the "extraordinary writs, see Writ Protection as Opposed to Appeal). This has not always been the case, see The Rules, History, and Evolution (July 2021). 

The Supreme Court elected to address the Apex Doctrine, as illustrated in Winckler on its "own motion" and to "codify the apex doctrine" in Florida more broadly than it had been historically. In introducing the topic, the Court described its evolution in Florida as regards senior management of state agencies as a "common law gloss on our rules of civil procedure." The point, it explained is to minimize the involvement of the highest of officials by requiring a demonstration that the equivalent testimony cannot be accomplished in some other manner. Succinctly, the Court said that
"[A]n agency head should not be subject to deposition, over objection, unless and until the opposing parties have exhausted other discovery and can demonstrate that the agency head is uniquely able to provide relevant information which cannot be obtained from other sources."
As simple as that concept is, this has been a public entity, "agency," issue in Florida as it has evolved through the various court decisions, the "common law." The Court noted that in Winckler, the trial judge had been confronted with a litigant that wished to depose a high ranking official of a corporation that was a party to a case. The Court noted that the First District in Winckler had correctly observed that “no Florida court has adopted the apex doctrine in the corporate context.” The District therefore denied protection by writ for the corporate officer sought to be deposed in Winckler

Notably, the trial judge and District Court did not afford protection in that setting, which illustrates the current judicial discretion of trial judges, subject to a "abuse of discretion" standard on review. It also illustrates that in the absence of an adopted rule "codifying" the doctrine, that appellate courts may be notably constrained by the "abuse of discretion" standard in addressing any failure of such protection by trial courts. 

The Court explained that it examined three issues in its analysis: (1) the "permissive approach to the availability of discovery" under the Florida rules, (2) the balance between that orientation and "the availability of protective orders," and (3) the common law evolution of protection for "high level" officials "[p]reventing harassment and unduly burdensome discovery." It noted that the evolution had rendered such analysis rather commonplace in the government agency setting, citing Department of Agriculture & Consumer Services v. Broward County, 810 So. 2d 1056, 1058 (Fla. 1st DCA 2002) and Univ. of W. Fla. Bd. of Trustees v. Habegger, 125 So. 3d 323, 325 (Fla. 1st DCA 2013).

The Court also noted that the Apex Doctrine already had a broader application in the Federal Court system. Further,
“Virtually every court that has addressed deposition notices directed at an official at the highest level or ‘apex’ of corporate management has observed that such discovery creates a tremendous potential for abuse or harassment.”
The Court concluded there is "no good reason to withhold from private officers the same protection that Florida courts have long afforded government officers." This is not, the Court stressed, a "blanket prohibition on the taking of a deposition," but merely a methodology through which trial judges can effectively "balance the competing goals of limiting potential discovery abuse and ensuring litigants’ access to necessary information." The adoption of Apex in this manner does not preclude or enable such discovery, but affords the trial judge discretion in such situations. Furthermore, it does so in an open and obvious manner that is readily accessible to all, with or without legal acumen or training. 

The application of the process may not be as simple as one may hope. There may be disputes as to whether one is or was sufficiently senior to warrant such protection. There is no definition of "high-ranking," leaving much discretion to the trial judge. There may be necessity of a person proving such status, through motion or even affidavit. One seeking to overcome such an objection or motion will be faced with persuading the trial judge that other avenues are "exhausted" or "inadequate," that there is need for "unique, personal knowledge," that is not viably available elsewhere.

The Court noted that part of the objection process could focus on the availability of "other less intrusive means of discovery, such as interrogatories and depositions of other employees." That will be of more narrow focus in the workers' compensation world, because interrogatories are not available in Florida workers' compensation discovery. Thus, the analysis of such issues may be different from proceeding to proceeding, trial system to trial system. Rules, in no context, are absolute. Much discretion remains with the trial judge in a variety of settings, thus this one is not unique or distinct in that regard. 

Justice Labarga dissented from the decision. He noted the change was "with the ease of a rule amendment" and "abandons Florida’s longstanding refusal of affording special discovery protections to toplevel corporate decision-makers." The dissent explains an alternate perspective that "the existing discovery framework contained in the Florida Rules of Civil Procedure adequately affords" the discretion to deal with such discovery disputes. Thus, it is argued that "the new rule adopted here today unnecessary." This perspective is essentially that such discovery can be precluded or allowed through application of the current "protective order" framework that exists for any and all discovery efforts. But, one might ask, can the current process be readily understood by the public, without access to either legal training or counsel?

The issue has thus bee public since August 2021. Why write about it now? The Court opinion solicited public comment on the rule change, which was to be filed "on or before November 9, 2021." Multiple comments have been filed in the case docket. The Florida Attorney General's office has requested an oral argument on the change. Reasonably soon, the Court will likely either entertain such argument, or reach a final conclusion on the changes to Rule 1.280, and the "codification" of the Apex Doctrine more broadly in Florida procedure. 

It is a topic to which all lawyers should remain attuned, and has potential application in the workers' compensation world. Furthermore, it is an intriguing view into the process of our Court and the methodology through which rules are addressed, proposed, considered, and more. 

Tuesday, November 9, 2021

Lesson in Res Judicata

In September, the Kentucky Commonwealth Court of Appeals rendered Jiminez v.gvb swgvc Lakshimi Narayan Hospitality Group, No. 2021-CA-0515-WC; WC-14-73573. The analysis brings interesting reminders of the doctrine of res judicata, and the "reopening of a claim."  

The path to the appellate court began with an administrative law judge (ALJ) granting a claim and awarding benefits. The Kentucky Workers' Compensation Board (the administrative body with primary appellate authority) reversed the ALJ and concluded that the claim was barred by res judicata. A unanimous panel of the Appeals court reversed, reinstating the ALJ's conclusions. 

The accident occurred in 2014 in a slip and fall at work. The injury was a head injury with loss of consciousness. This proceeded to litigation of claims for benefits, and a process called a Benefit Review Conference (BRC) in June 2016 resulted in various stipulations of the parties: that the worker was injured, that various medical bills had been paid, but that no temporary indemnity benefits had been paid. An ALJ then rendered an order awarding temporary total disability benefits and concluding "there is no medical evidence of permanent injuries so there is no basis for an award of permanent income benefits." It is not clear whether such permanent benefits were claimed. 

Years later, in 2019, the worker filed a "motion to reopen," the case alleging that there was a "change of disability as shown by objective medical evidence." The allegations were based upon medical treatment that began in 2017, and addressed a cervical injury as well as "cervical spondylosis"; there was also mention of emotional injury. The ALJ allowed the case to be reopened and noted that "the original opinion should have read" differently. Following trial, the judge "awarded permanent partial disability (PPD) benefits," and various medical benefits. 

The ALJ concluded, following a December 2020 trial, that KRS[4] 342.125 precluded the application of res judicata finding it "inapplicable in this instance" because the "medical evidence . . . indicates that the full nature of the Plaintiff’s injury was not known at the time" of the original proceeding and ALJ decision. The ALJ concluded that "the relationship between the work incident and the Plaintiff’s impairment was not clear" when the matter was initially litigated. 

In early 2021, the Workers' Compensation Board reversed that conclusion. The Board concluded that res judicata did apply. and that KRS 342.125 only affords authority in specific instances including 
"(a) Fraud; (b) Newly-discovered evidence which could not have been discovered with the exercise of due diligence; (c) Mistake; and (d) Change of disability as shown by objective medical evidence of worsening or improvement of impairment due to a condition caused by the injury since the date of the award or order."
The Board concluded that the circumstances in this case did not meet those requisites and thus that the statute did not allow the reopening of the case. The Board found relevant both the ALJ findings in 2017 and that the order then had not been appealed or otherwise revised in a timely manner. The Board's decision seems to follow the plain language of the statute. 

The Board concluded that the permanence issue was precluded from re-litigation because the allegations were not clearly within the exception to res judicata found in KRS 342.125, citing court opinions dating to the 1950s. 

The appellate court read the evidence to satisfy KRS 342.125(1)(d) and reversed the Board decision, thus agreeing with the trial judge. It concluded that the Board misconstrued the statute, and was in "flagrant error." The Court concluded that the "original award was only for a period of TTD benefits and was not appealed." It did not explain, but seemed to conclude, that a finding of MMI and no impairment essentially meant no impairment at that time. It noted that workers' compensation proceedings are distinct from court proceedings, they are "administrative," therefore while 
"the principles of error preservation, res judicata, and the law of the case apply to workers’ compensation proceedings, they apply differently than in the context of a judicial action."
Therefore, it explained, that precedent regarding the application of res judicata in "judicial proceedings is not necessarily binding" in workers' compensation. Furthermore, the Court explained "all of the bases upon which the Board relied are rooted exclusively in judicial proceedings." Notably, the processes of judicial proceedings are often rooted in things like the constitution, due process, etc. Relying on an academic workers' compensation treatise rather than precedent in the state, the Court concluded that "physical condition or degree of disability" might be different "at two different times." Thus, that "change in condition" could not ever exist if this were not true. 

There is no explanation by the Court regarding the potential inverse: that res judicata could potentially not ever exist in a particular case. The human body is complex. Jane Teller is quoted that "From the moment we are born, we begin to die.” We naturally deteriorate as we age. It may be that change in condition is not only predictable in most or all cases, but perhaps inevitable. If that is accepted, then the outcome(s) may well be intriguing under the Court's analysis. Possibly, there is little to no chance of res judicata in Kentucky. 

In effect, the Court concluded that Kentucky workers' compensation is bound by res judicata, subject to the exceptions in KRS 342.125. However, read in context, it is possible that with the inevitability of human aging that those exceptions essentially become the rule, that the application of res judicata becomes the exception and is afforded legal significance only in the rare case that fails to demonstrate deterioration. Or, in the rare case that fails to demonstrate deterioration - yet. 

Perhaps, there is no finality to a judicial determination. Had the injured worker not prevailed in that December 2020 trial, would that be the end of the analysis? Or, as the physical condition deteriorated further with advancing age, might the scenario repeat yet again? And again? Whether there is or is not finality is an interesting question. There has been a desire for an end to litigation, and thus the doctrine of res judicata. The effect is that parties generally get one shot at litigating an issue.

However, in the context of a social benefit system such as workers' compensation, the importance is perhaps muted. The cost of benefit is widely dispersed through the mandated socialization of risk. And, the goal of theses systems is ultimately that distribution of risk or cost. On the other hand, it seems that any taking of property should include at least minimal protections afforded by the due process clause. Thus, perhaps a legislature can obviate res judicata. In such instances, should the statutes they draft be given their plain meaning? 

Is the real issue what was pled in Jiminez? Perhaps there was no issue of MMI or permanent benefits on the table when that first hearing occurred. That would be similar to a 2019 decision of the Florida Appellate Court. Napier v. City of Riviera Beach, 278 So. 3d 881, 882 (Fla. 1st DCA 2019). Or, perhaps the case is limited to its facts. There, the court concluded that due process protected a party from res judicata as the judge adjudicated an issue that had not been noticed for trial, essentially going beyond the record with a finding regarding an issue unpled. While there are potential similarities, that does not appear to be the case in Jiminez. Perhaps, though, such a risk explains the outcome there. 

Certainly, this decision is interesting reading. The crux of it lies in statutory interpretation, Note that two appellate panels read this statute and each was unanimous in its own interpretation, though they did not agree. The process of litigation can be perilous and unpredictable. 

Sunday, November 7, 2021

Safety First

I’m drawn this week to the topic of workplace safety. Many workers' compensation accidents result from a failure of safety precautions. It is common for industry to have managers on site whose only role is monitoring and enforcing safety protocols, regulations, and laws. A great many of those are proclaimed by the Occupational Safety and Health Administration (OSHA), but various states have regulations as well. 

Early in my career, I encountered a situation involving a large piece of industrial equipment. An industrial facility had deemed this equipment's performance substandard, and had brought in a team of professionals to perform upgrades. The team included multiple vendors: electricians, software technicians, mechanics, welders, and more. A major goal in such "shut down" processes is speed, so multiple experts engage in various work simultaneously. The interest is in completing the job and getting that expensive machine (and the whole plant) up and running again. Seldom do manufacturing machines make money when idle.

Somehow, between those multiple crews, each supervisor had assumed that one of the others had accomplished something called "lockout tag out." And, the one thing upon which everyone later agreed was that they were all wrong. Notably, "lockout tag out" is the subject of a specific OSHA regulation: 1910.147 - The control of hazardous energy (lockout/tagout). 
"This section requires employers to establish a program and utilize procedures for affixing appropriate lockout devices or tagout devices to energy isolating devices, and to otherwise disable machines or equipment to prevent unexpected energization, start up or release of stored energy in order to prevent injury to employees." 1910.147(A)(3)(i) 
Lock out/tag out is the equivalent of unplugging your lamp from the wall before you attempt to replace the switch inside it (and perhaps having someone hold the plug in their hand while you work to preclude accidental re-energizing). Throughout the industrial world, electricity is routed to machines through conduit, which is periodically interrupted with junction boxes. These junction boxes have switches that can interrupt power flow. And, there are a variety of methods by which some or all of the circuits can be both neutralized and marked (tagged) or locked. Many have a large "knife" switch on the outside which can be locked with padlocks (plural). 

The appropriate process may be for each person, or at least team, working upon a piece of equipment to place his/her own lock upon that switch. When you or your team is finished, and clear, you remove your own lock. But, because you do not have the key to another persons lock, others are still restrained from re-energizing that machine until all locks are removed. In other instances someone may lock such power and be responsible for assuring all teams/persons are clear before restoration. The point is that each person/team is assured of being clear and thus safe by removing her/his/their own lock, or being supervised. 

In the instance years ago, when that machine was inadvertently triggered, it cycled in its normal designed manner and essentially ingested one of the contractors. This was, obviously, a fatality event for one worker, but in the later testimony I was told repeatedly how traumatic it was for literally everyone else in the facility, whether they witnessed it or not, knew that person or not, had ever even seen that machine or not. It was a very traumatic experience even for the folks in the business office who never even ventured into the production area where the machine was located. With complete detachment, those people were nonetheless traumatized by this senseless death.

With multiple vendors on site, there was significant post-accident finger-pointing. Certainly, an element of that was the significant financial liability. Tragically, though it is rarely discussed, employee fatalities are often far less expensive than other serious injuries in the nation's worker’s compensation programs. There is a tragic finality to death that is perversely viewed as less worthy of compensation than disability and restrictions. It is even possible for the estate of a worker without dependents to not be entitled to substantive death benefits at all. In some instances, only funeral expenses will be covered. See Reminded About Death Benefits (February 2019). 

In addition to the financial responsibility, the finger-pointing is also the product of our human emotion. We are all hard-wired to not blame ourselves for bad events, even minor ones. Psychology Today has some guidance for us about that. It may be very hard to accept responsibility for causing injury, tragedy, or the finality of death. It is emotionally difficult to step forward, look responsibility in the eye, and say “that man died because of me.“ Of course, this is not a universal truth. There are those in our world who possess no capacity for empathy, sympathy, or commiseration. This may be as simple as empathy deficit disorder or as complex as sociopathy or psychopathy. But, most of us fall without those challenges.

Returning to the present, I have been a gun enthusiast for decades. I visit gun ranges, target shoot, and socialize. I have hunted a few times, but frankly lack the patience required of both this and fishing. I have repeatedly encountered people in public with an obvious pistol upon their belt (yes, that is a real thing in various states). It may not be normal or experienced everywhere, but there are places where it is not uncommon. 

Often, in such settings, I have complemented a weapon. Occasionally, the owner will proffer it to me. At times, I have also simultaneously received the reassuring “it’s not loaded," or seen them clear the gun before handing it to me. Every time, in every circumstance, my immediate action is identical. First, I receive the weapon keeping it pointed down-range or to the ground. It is a conscious and persistent decision that the weapon never be pointed at a person. Guns are dangerous, and there is nothing more dangerous than a purportedly "unloaded" gun.

Second, in no way meaning to question anyone’s credibility, honesty, or sincerity, my second step is to personally examine the weapon. I drop the clip if they have not. I lock back the slide and visually inspect the chamber. I open the action. If it is a revolver, I open the cylinder. Upon verification of a complete absence of ammunition, I return to the practices in the first step above, never pointing at a person. It is by this time verified by me to be unloaded. Nonetheless, I treat it like what it is: a potentially dangerous device. As Marc Shean of USACarry noted:
"If you don’t have the mindset that they are all loaded, and ready to fire, you are a prime candidate for a firearm accident, you assume too much, take to much for granted."
GunCraftTraining recommends:
"Rule #1: Treat every gun as if it is loaded. Even if you know the gun is unloaded, treat it with the same level of respect as you would a loaded gun."
The Internet is full of similar advice. I find myself having sympathy for Director of photography Halyna Hutchin and her family and friends. She was senselessly killed by complacency and stupidity. Unfortunately, these two kill many people every year. An actor making a movie pointed a gun at Ms. Hutchin and pulled the trigger. She died, and the bullet passed through to injure Director Joel Souza, according to CNN. One is dead, another is injured, and the entire event was absolutely avoidable. That is not to say accidents do not happen, but clearly this tragedy was avoidable, with greater precaution, communication, or care - avoidable. With a little training, a little attention, a little caution - avoidable. Thus, the death is senseless and disturbing. 

Hannah Gutierrez was the armorer on this movie set. She was responsible for the inventory of weapons being used in the movie. Like the overall project manager discussed above, she had full control of the lock on the electricity, the gun, the ammunition, the threat. She kept guns stored and secured. According to Deadline, she "has no idea where the live rounds came from.” According to the British Broadcasting system, Assistant Director Dave "Halls had handed the gun to (actor) Baldwin during a rehearsal and called out 'cold gun' as he did so." How did Halls get access to the gun? How did it get loaded? Where are the failsafe constraints. 

Actor Alec Baldwin was an actor on this movie set. He pointed the gun and perhaps pulled the trigger. In any event, the weapon discharged in his custody and two people were shot, one died. Mr. Baldwin has spoken about the shooting, in what The Daily Beast describes as a "tense faceoff." That report includes Mr. Baldwin's wife's expression that "she is worried her husband will develop PTSD." Nickiswift.com has a somewhat unflattering history of Mr. Baldwin's past. Some might conclude that he is perhaps high strung or emotional to begin with. Regardless, I suspect that anyone in his position is likely to be troubled deeply about the responsibility that comes with someone's death at his own hands. 

The finger-pointing has begun in this situation. Who put live rounds in that gun? Where did they come from and what were they doing on a movie set? In what instance is a live ever round needed in a movie? Why was the gun sitting unattended where someone could pick it up? Why did anyone pick up this weapon and pass it on assuming it was safe, not checking that it was? Why did anyone that received this weapon, including the actor, assume that it was safe, or "cold," or not? Did someone pull the trigger, or did this gun just volitionally fire itself? Did these various personnel receive even basic instruction on assuring that a gun is safe before it is handled further?

Some critics have explained that under most circumstances no weapon is pointed at others in filming a scene. When the angle cannot be adjusted, and the scene absolutely requires a weapon to be pointed directly at the camera, presumably it is possible for the area behind/around the camera to be completely evacuated. Or, some have discussed that one might place a shield between a weapon and the crew filming a movie, the directors and others in those "must point" situations. Still others remind that in the modern world any scene can be filmed with a rubber gun and the reality can be substituted in later ("post-production") with computer generated imagery (CGI). Presumably, the tragic death of Ms. Hutchin was completely, indisputably, avoidable. 

There will be, has been, discussion about who is responsible for her death. At the end of the day, when one holds a weapon in their hands, that is their responsibility. It remains theirs even if someone else tells them it is safe, unloaded, or "cold." If I hold it, the direction in which it is pointed remains my responsibility. The avoidance of the trigger is my choice. All of the responsibility is ultimately upon whomever holds the weapon. Certainly, if I pass the weapon to someone else, I retain some responsibility. But, like the lock out/tag out, it is ultimately the responsibility of whomever is holding it. Trained or not, assured or not, serious or not, whomever holds it is responsible. 

Whether criminal charges are filed in this instance or not, someone is dead and at least one other injured. As with other events happening every day, someone is injured or killed due to complacency, haste, or inadvertence. There will be implications in workers' compensation for these employees. There may be implications in a civil setting regarding whether coworkers' face liability for damages to the wounded or the estate of Ms. Hutchin. But, the criminal charge decision will be utterly separate. The potential for OSHA fines will be utterly separate. There are a multitude of legal and contractual issues to be worked through in this and any similar workplace death. 

But, in the end, all of that will be secondary to the fact that someone was killed, and injured, by a coworker. That, regardless of the ultimate facts found or laws applied, was completely and utterly avoidable with a minimum of due care, patience, and intellect.  While our society improves persistently, 5,333 American workers nonetheless died on the job in 2019, according to OSHA. That is almost 15 per day. Unfortunately accidents happen and tragically many are serious. Too many are fatal. Perhaps, too many of them are 100% avoidable and result from poor training, haste, inattention, and worse. 

The final outcome in New Mexico will be of interest. But Ms. Hutchin's death is a reminder for all workers. You are responsible for the safety of yourself and those around you, always. This responsibility is only increased when you deal with vehicles, machines, electricity, guns, etc. Every worker has a brain, should be blessed with training, and needs to remain focused. Safety is job one, and getting everyone on the crew back home in one piece at the end of the day is critical. Much to consider, but every tragedy should be avoided when possible. 

Despite any protestations or alibi, it doesn't matter if you didn't know the gun was loaded; knowing was your job. Safety was your job, your responsibility, your duty. If your finger was on the trigger, the guy in mirror failed.