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Thursday, December 30, 2021

Shrinkflation and SB 959

Inflation is hopping as we end 2021. U.S. News reported recently that From Cars to Gasoline, Surging Prices Match a 13-Year High. That story blames some increases upon "tangled global supply lines (that) continue to create havoc." It explains that "the unexpected burst of inflation this year reflects sharply higher prices for food and energy, but also for furniture, cars, televisions, and other largely imported goods." There are those who level criticism at various targets regarding inflation. And, it is not necessarily over or even plateaued. One expert quoted in the article notes "we look for inflation to remain persistently above 3% through mid-2022."

There are those who believe that the inflation is "pandemic-related." Therefore, it is seen by Brookings as "temporary," and it predicts that "the current trend does not forecast the future." But, Brookings notes that "after excluding the typically volatile categories of food and energy prices, (inflation) is running higher than it has been in decades."

It is not a United States phenomenon alone. Pew Research noted recently that "Inflation has risen around the world." It notes that inflation was recently noted in 39 of 46 countries in a study. It is perhaps fair to characterize this as a global issue. However, the impact on the U.S. has been notable, perhaps profound. Pew notes multiple potential causes for this:
"Explanations for the current phenomenon proffered to date include continuing disruptions in global supply chains amid the coronavirus pandemic; turmoil in the labor markets; the fact that today’s prices are being measured against prices during last year’s COVID-19-induced shutdowns; and strong consumer demand after local economies were reopened."
The Visual Capitalist recently reported gasoline is up 50%, natural gas up 28%, used cars up 26%, meat up 15%, furniture up 12%, eggs up 12%, and that there is "no consensus" on where 2022 will lead. It notes that the "inflation rate in the U.S. has seen its fastest annual increase in over 30 years." For most of us, inflation is a serious challenge and there is little chance in the short run that the fruits of our labors (pay, fees, prices) will increase at a similar pace.

Periodically during this pandemic, prices have been less relevant. There was a period there where the supply of toilet paper, Lysol, hand sanitizer, and more were essentially zero. When such products appeared, they were consumed without any consideration of price, and some expressed surprise that manufacturers and retailers did not charge higher prices in light of the supply and demand equations. I had an intriguing conversation with a man in a check-out lane several months ago about his efforts to subvert the store's "two item limit" on bacon. He confided that was his third trip of the day for bacon and toilet paper. I like bacon too, but really?

Notably, however, MSN recently highlighted the related concept of shrinkflation, inflation's less renowned cousin. The retailers and manufacturers are cognizant that consumers have a familiarity with the price point for various products. We are aware that apples sell for $x per pound, or a head of lettuce is $y. They know that we will notice price expansion in those settings. They also know that most products in the store are not sold by the pound or ounce. They are sold by volume, and for years they have warned us that "contents may have settled during transit," to guard against consumer shock at the volume of empty space in the newly opened box.

MSN notes that "inflation is at a 40-year record high," and product costs are rising. It contends that one reaction is "something a bit more sneaky." Rather than raise the price on a box of product, the manufacturer maintains prices and puts less product in that box. One example cited involves a frozen pizza brand that one customer claims "used to feed three of his children in the past was only enough (now) for one child." That seems a bit over-the-top. I never saw a pizza in my life that could feed three children, ok, maybe very small children, but I digress.

Another cited example is some ice cream bars that shrunk from 3.5 ounces to 3 ounces. And, manufacturers strive to put a positive spin on the change "so that we can keep delivering our beloved extra creamy ice cream to our fans without sacrificing any of the quality components that got us here.” But, this merely suggests yet another (third) option out there: maintain price and volume/quantity, but simply skimp on the quality of inputs (raw material) in order to remain viable. Thus, the consumer is left with the challenge of evaluating purchases based on product price, volume, and quality.

There are perhaps valid explanations for "down-sizing." One MSN example from the 1970s was presented by gumballs. Back in the day, every store (it seemed) had a gumball machine or similar vending opportunity geared towards us young folk. There was a slot for a coin, a handle to turn or slide, and the machine would dispense some quantity of gum, candy, or a trinket. We begged (or worse) the adults for a penny and were so excited to get one). MSN explains in that context, that replacement of those machines, geared to some specific coin such as a penny (yes, kids, we used to actually buy something for a penny), would be cost prohibitive. Thus, the options on the table were only to diminish quality or shrink size/volume, as changing the price was not an option.

Similarly, in today's marketplace, there is likely some effort involved in changing the price on a store shelf, in a point of sale computer system, etc. Thus, in an age of shifting quality or volume, the determination of the actual price you pay comes down to you and your consumerism. Is the outcome any different in the world of workers' compensation? As inflation persists in the marketplace, the price of services or products increases. Or, perhaps not.

Inflation is a reality for everyone. The prices of goods and services persistently increase. Some of that is driven by market forces, which can sometimes be more discernable that other times. For example, a single market element such as fuel could impact the prices for obtaining materials, manufacturing, and delivery to market. If there is some disruption in the solitary element of fuel cost, inflation might occur in a variety of outputs/products.

In other instances, government action similarly alters some input price. One easy example is the minimum wage; another is taxes. Thus, through government mandate, some price is set for an production input or tariff on the producer output, and thus pressure on the price. There are many other potentials for government to impact prices of goods and services, through regulation. A 2018 analysis by Investors Business Daily estimated that the "actual cost of regulations to the U.S. economy is . . . roughly $2 trillion a year." That regulatory cost is "greater than the GDP of all but nine countries." Regulation is expensive; American regulation is notably so. Remember Ronald Reagan's "nine most terrifying words?" They were "I'm from the government and I'm here to help." Help raise your prices and stifle your production.

Florida recognized this years ago, in 2010. Section 120.541, Fla. Stat. defines parameters for "adverse impact on economic growth," as being an impact "in excess of $1 million." If a rule (which largely are enacted by the executive branch agencies) is "likely to have an adverse impact on business competitiveness," then the "rule may not take effect until it is ratified by the Legislature." This is a recognition of the potential for regulatory cost impact and a requirement that the elected representatives approve such impacts. This is an accountability law, preventing unelected officials from regulating us into something more than that "$2 trillion a year" estimate noted above.

By this point, you are forgiven if you are muttering under your breath "what does this have to do with workers' compensation?" That is a fair question. In 1978, the Florida Legislature was concerned about medical costs in workers' compensation, and it formed "an advisory committee" on the topic. That soon evolved into the unflatteringly-named "three member panel," charged with annual determination of “maximum reimbursement allowances for” medical treatment and care. Section 440.13(4)(a), Fla. Stat. How, one might ask, does this panel cap reimbursements? The answer is by rules; the reimbursement manuals for medical care are rules. And, those rules are subject to the provisions of section 120.541 discussed above. So, government action, regulation, limits medical reimbursement. Legislative action, statute, limits regulation. And, there is the proverbial rub.

The result is that medical reimbursements have not been determined annually. In 2022, that may change. House Bill (HB) 959 has been introduced, and would specifically state that the legislative approval process for rules "does not apply" to the "schedules of maximum reimbursement" in section 440.13. The impacts of inflation upon the provision of medical care in the workers' compensation market could be considered more fluidly and adjusted more easily. The debate regarding that ease of adjustment and the overall intent of section 120.541 will be interesting to watch as this is debated and discussed in 2022.

Without annual alterations to reimbursement, how does a service provider (physician) survive? Perhaps she/he just accepts less profitability and nonetheless perseveres in providing excellent and peerless care in a difficult environment? One might instead posit that such a provider is in the same posture as the pizza and ice cream manufacturers discussed above (though mandated to not raise prices instead of merely being reluctant to do so). The provider could shrink the serving size (shorter time spent with each patient to facilitate more patients and thus maintain income). The provider could employ some substitute inputs (more care with nurses or physicians assistants and less doctor attention). A big difference worth noting is that you (consumer) make the choice in the grocery store, but the patient in workers' compensation generally does not make the choices as to medical providers.

Inflation is insidious, pernicious, and persistent. Us Boomers (keep your insults in check) remember penny gumballs, quarter ice cream cones, and buying a whole dinner at McDonalds for less than a dollar. The world has changed a lot, and it takes a while for each generation to see the impacts and effects. The youth of today may well roll their eyes at my recollections of gumball and burger prices, without realizing that I too rolled my eyes at the recollections of the Silent Generation that preceded me. Remember summer camp? - "Second verse, same as the first. A little bit louder and a little bit worse!" I bet the Silent Generation rolled their eyes at the Greatest Generation, and so on, and so on. 

I recommend some solace in the lyrics of Baz Lurmann from The Sunscreen Song (1999):
"Accept certain inalienable truths: prices will rise, politicians will philander, you too will get old -- and when you do, you'll fantasize that when you were young prices were reasonable."
Inflation is as inevitable as death and taxes folks, and just as welcome. It will fluctuate, and the present is a tough time in this regard. Those whose wages are not increasing exponentially are currently seeing their buying power shrink instead. But, time will bring adjustment. Wages will either rise naturally to meet the effects of the recent overspending and minimum waging, or there will just be more overspending and minimum waging by the government to respond. The cycle is bound to continue, though pace might be argued. We will all adjust in time. 

And, Happy New Year to you too! May it bring:

(1) Less contention about face masks and vaccines. 
(2) Less infection, hospitalization, and death.
(3) Less inflation, shrinkflation, and regulation.
(4) More goodwill by all for all around us.

What is on your list?



Tuesday, December 28, 2021

Junk Mail

Recently over 100 world leaders flew their jumbo jets to Glasgow to discuss in earnest what to do about pollution and their perceptions of global warming. There were impassioned speeches, photo opportunities, demands and compromises. According to CNBC:
"The two-week COP26 climate summit, which ends on Friday, will emit about 102,500 tons of carbon dioxide — that’s the equivalent of total average annual emissions for more than 8,000 U.K. residents."
One must admit that these leaders seem to be reasonably familiar with carbon output. There has been a great deal of effort apparently invested in understanding carbon production, detailed in various maps and charts. That data says that the residents of the UK each average annually 5.8 "tonnes," That is not consistent with the CNBC quote above. Dividing 102,500 by "8,000 UK residents" yields 12.8 tons. Dividing 102,500 by the 5.8 tons reported elsewhere yields 17,672 "UK residents'" annual average. The disagreement in this math is curious. 

I was contemplating that carbon output, and the divergent math, when I retrieved another stack of junk from my mailbox. Each day, I receive various pieces of unsolicited junk conveniently delivered to my home by a series of federal employees. It includes catalogs, coupons, solicitation, and more. The most perturbing are those that recognize my "seniority" and then offer membership in their "advanced age" club. I am not "retired" and not contemplating it, thanks very much!

This junk is apparently picked up by some federal worker, sorted by others, transported in trucks, and then delivered to my home by still others. Every single day they ply my neighborhood roads delivering this detritus. Occasionally, I will bring it inside. More often, I peruse it while walking from the mailbox and dump it in a large can outside. I need do nothing further, the county pays a different person in another large, noisy truck to retrieve this junk each week and drive it out to the country to be buried by large bulldozers.

In an era of asking that we decrease energy consumption, reduce carbon emissions, one wonders whether this ridiculous and persistent circle of life has ever been considered.

Take Care of Texas claims that:
"According to research from the Center for Development of Recycling, each U.S. household receives around 40 pounds of junk mail annually." 
This is said to equate to more than 4 million tons from over 77 billion pieces of junk mail each year. Most of this likely ends up in our landfills! Statista says there are 128 million households. Multiplied by the 40 pounds, this comes out to more like 2.5 million tons. Again, it is troubling that the math seems periodically divergent. 

According to the U.S. Postal Service, its drivers cover 1.2 billion miles each year delivering the mail. That is 1,200,000,000 miles. The Inspector General concluded that 6.3 miles per gallon is a fair figure for calculating the fuel consumption during that effort. That equates to 190 million gallons of fuel used annually to move the mail. Judging from my box, most of that is junk. 

The U.S. Energy Information Administration concludes that burning a gallon of gasoline, depending upon whether the contribution of the ethanol component is included, "produces about 17.68 (to 18.95) pounds of CO2." The 190 million gallons the postal service uses thus equates to 3,359,200,000 (190,000,000 x 17.68). This assumes the 190 million includes all transportation (local pick-up vehicle, interstate transport vehicle, and local delivery vehicle). That is 3.3 billion pounds of C02, or about 33,000 times the impact of all those jets flying to the "climate summit." In short, that is a lot, and in no way seems inclusive of vehicle maintenance needs, etc. 

What if the mail were delivered to each home every other day, instead of daily? Then the 190 million gallons might be cut in half. Perhaps the inflation-soaked $3.30 per gallon for the resulting 95 million gallon ($313,500,000) savings would be a worthwhile monetary savings sufficient to justify the change? Imagine, instead, if physical mail delivery were reduced to once weekly, the fuel consumption might be reduced by at least 80% or 152 million gallons, saving roughly one-half billion dollars annually. The financial savings apparently lacks the appeal to drive such change. 

What would the effect be on carbon output? Consider reduction of that 3.3 billion pounds of C02 by 50% by delivering every other day (1.68 billion pounds/840,000 tons). Consider the 80% reduction if delivery were reduced to once weekly (2.68 billion pounds/1.3 million tons). The average U.S. carbon footprint is 16 tons per person according to Worldometers. Reducing the frequency or our unsolicited junk mail might thus eliminate the equivalent of the carbon output for perhaps 52,487 to 83,000 Americans. That is similar to all of Largo, Florida. And, who would miss the daily (junk) mail? 

None of this even considers the fuel expended to harvest and transport pulp wood trees, or to process them into paper. There is fuel expended to transport that paper to printing facilities in which the various junk mail is produced, so that it can be picked up, transported, sorted, and delivered. 

And, none of the foregoing considers what it costs thereafter to transport all those unsolicited junk mail catalogs, solicitations, and coupons from our homes to the landfill, or the fuel for the bulldozers to cover them in dirt. Apparently garbage may be hauled as far as 100 miles to a licensed landfill. That 40 annual pounds of junk mail being hauled away is thus responsible for significant additional carbon emissions.  

In days to come, it is perhaps inevitable that we will all be asked persistently to decrease our carbon footprint. Who is willing to pitch in right now with less or no unsolicited junk mail? Or, with the savings that would come from reducing the frequency of delivery of such junk mail? 


Sunday, December 26, 2021

Alabama Discipline Cases

Bad behavior is not endemic. Bad judges come in a variety of jurisdictions, localities, and backgrounds. It is worthwhile to reflect on their decisions, as we can all learn from the mistakes of others. See Eleanor Roosevelt. We really do not have time in our lives to make all the mistakes ourselves. I have written about several judges over the years. See Judicial Timekeeping (April 2021); The Code of Judicial Conduct and Scouting (March 2015); Why do we Recuse (December 2019); and Judicial Ethics and "The Great Pumpkin" (June 2017). 

An interesting Judicial discipline case from Alabama made the national news recently, with mention on Yahoo News, the Daily Mail, BET, and more.  The Judge is Nakita Blocton, a Circuit Judge in Birmingham, Alabama since 2017. Earlier in 2021, the Judge "left office in February 2021," and a complaint was filed regarding some alleged statements and actions of the judge. The coverage admittedly all leaves us asking why a complaint, vote, and written opinion if she already left office, but I digress. The Alabama Court of the Judiciary is charged with hearing such complaints, and its nine members convened December 7, 2021 to consider the complaint. 

The Judge was accused of "engaging in a pattern of ex parte communications with litigants and attorneys appearing before her," as well as "a pattern of making other inappropriate communications to staff, lawyers, and litigants." Second, she was accused of "engaging in a pattern of abuse of staff and a pattern of abuse, bias and favoritism towards attorneys and litigants. Third, the Judge was accused of "failing to avoid an appearance of bias, favoritism, and retaliation towards attorney's and litigants. Fourth, she was accused of "engaging in and/or displaying inappropriate demeanor and indecorous behavior." Fifth, she was accused of "failing to promptly dispose of the business of the Court." She was also accused of "engaging in an appearance of drug use and mental instability." Finally, count 7 alleged she "engag(ed) in a pattern of dishonesty and deception. 

As to various accusations, the Court noted relevance of various canons of the Code of Judicial Conduct, including: 1, 2, 2.A, 2.B, 3, 3.A(2), 3.A(3), 3.A(4), 3.A(5), 3.B(2), and 3.C(1)(a). The Court concluded that she had not been proven to have "engag(ed) in an appearance of drug use and mental instability," nor to have made an improper campaign contribution in a mayoral election. 

However, the Court concluded that clear and convincing evidence did support that she "engaged in ex parte communications and that she engaged in a pattern and practice of making inappropriate comments." This included referring to fellow judges as "Uncle Tom" and other derogatory terms, as well as "calling an employee a 'heifer.'" According to the complaint filed in May 2021, these comments included reference to another judge as "the devil," and one as "the biggest smiling sell out." Multiple messages included other derogatory terms not worthy of quoting. In addition, another employee was "verbally abused and belittled."

According to the complaint filed in May 2021, the ex parte communication allegedly included "telling one attorney how to 'fix her filing' and how judge Blocton would rule if a motion to stay was filed." in late 2020, an attorney allegedly contacted the Judge's staff to inquire about the status of an order then pending for over a year. The staff, "M.T.S.," told the Judge of the call, allegedly leading the Judge to call the attorney, conversing for almost two hours, and to "rudely and disrespectfully" speak to the attorney, which "reduced the attorney to tears." The Judge allegedly "demanded that the attorney plead for M.T.S. to keep her job" during this conversation. 

After the investigation in to Judge Blocton began, she allegedly "ordered employees to allow her to see their private cellphones," and sought to delete information on them relevant to the investigation. The complaint filed in May 2021 alleges that the judge "snatched" one employee's phone from her/his hands, and "took" another employee's cell phone.  The Court concluded that she forced staff to work "unreasonable hours," "late nights, and weekends." The complaint filed in May also alleges that she forced staff to consume a diet medication to "'pep' them up after having worked late the evening before." This was perceived as intimidating employees. 

The Judge was found to have used "Facebook aliases to communicate with litigants in a pending  domestic-relations case." This was seen by the Court as "a pattern of dishonesty and deception." The point of that communication was to "affect the outcome of the case." Further, that the Judge "failed to promptly dispose of many of the cases assigned," and was "unable to effectively remedy her backlog of cases."

The Court concluded that the behavior violated: canons 1, 2.A, 2.B, 3.A(2), 3.A(3), 3.A(4), 3.A(5), and 3.B(2). It therefore ordered that she be "hereby removed from the office of Circuit Judge of Jefferson County effective immediately."

As interesting as this judicial conduct decision is, It shares the stage with another case focused largely on things said aloud. The Alabama Court of the Judiciary entered a final judgement in the matter of John Randall Jinks on October 29, 2021, as regards a complaint filed March 2021. This judge has been in office since 2019, as a probate judge. These centered on allegations by some employees regarding his "treatment of women, what they regarded as racist behavior, his use of inappropriate language, and his behavior while in the office." 

The allegations in the first count include "engaging in and/or displaying the inappropriate demeanor," including

"engaging in and displaying racially insensitive demeanor, sexually inappropriate demeanor, other inappropriate demeanor about women, inappropriate expression of anger, use of and allowance of profanity, and/or other conduct unbefitting the judicial office."
A second count alleged "inappropriately using and/or allowing someone to inappropriately use" a county-provided cell phone for inappropriate downloads, dating websites, and "view(ing) at a loud volume an uncensored video with profanity and racial slurs." Finally, count 3 alleges that the judge inappropriately sought prosecutor approval for an early release of someone from a criminal sentence, and used "court letterhead and his judicial title to seek financial help for a friend." 

The Court concluded that the judge "violated Canons 1, 2.A,4 2.B, and 3.A.(3) by displaying racist conduct." The Court referenced an instance of asking an attorney for "an acronym for a racial epithet involving the 'N word,'" a statement to a worker who had just purchased a new car in which he question "if he was a drug dealer," and some remarks about "the violence and burning in which reference was also made to an election." Multiple instances of unfortunate language was included in the Court's order. The Court noted that "although the complaint alleges 'racially insensitive demeanor,' this Court is of the opinion that Judge Jinks' conduct rose above racial insensitivity."

The Court was convinced that the Commission "proved by clear and convincing evidence" all three of the counts. It concluded that the judge violated Canons 1, 2.A,4 2.B, 2C, and 3.A.(3). The Court removed the judge from office, but an appeal has been filed. 

The lesson(s) from the two cases are fairly simple. Primary are that words are critical, and perhaps more so in the twenty-first century. Judges must remain aware of the verbiage they choose, and should avoid insulting anyone. Staff are a critical part of the judicial process and they deserve respect, dignity, and care. Judge or not, everyone must remain aware of the impact that words may have on those who happen to overhear. It is not just the effect on the intended recipient that matters. 

The  state's premises are for business, and the hiring of state employees should remain arms-length, focused upon the delivery of competent and timely public service. The lessons on ex parte are barely worth mentioning. Judges should not communicate with the parties in a case in that manner. And, using fake social media accounts to do so somewhat signals recognition that it is inappropriate.

Finally, judges must refrain from lending the prestige of office to others. This includes recommendation letters, calls to other judges, and more. Being entrusted with this title and its tasks is an honor. That honor is tarnished by the misuse of that prestige for the advancement of the interests of friends and acquaintances; it is simply and appropriately forbidden. That is worthy of recollection and consideration any time a judge receives a request for a favor, an intervention, or other assistance.  


 



Thursday, December 23, 2021

Chestnuts Roasting on an Open Fire

A shout out this morning to Nat King Cole and perhaps the most iconic Christmas lyric of all time. I started to list the artists that have covered the tune since, but space is limited (my apologies if your favorite rendition is by another). His The Christmas Song is a perennial classic, and in addition to the reference to the open fire carries "Although its been said, many times, many ways, Merry Christmas to you." This is one I find myself singing along to on the radio (the "radio" is a method for transmitting and receiving information and entertainment, similar to Spotify or Pandora). 

Holiday songs are not all of that caliber. I also find myself distractedly singing along with the fruit of composer Randy Brooks. His 1978 hit, covered by Elmo and Patsy, has certainly gotten considerable air time over the years. As corny as it may seem, Grandma got run over by a reindeer gets as much air time as any of them. I am particularly likely to join in on the chorus regarding gifts: "send them back!" The song narrates a sad passing of a family member stricken through the satirical impact of sleigh-pulling reindeer. Grandma's family is described in dealing with their loss, and remembrances. It is whimsical, humorous, and has become a part of our fabric. But, death and loss are anything but humorous. 

We find ourselves at the end of another year. It has been a year of interesting challenges (aren't they all?). There are undoubtedly a great many among us that are celebrating their first holiday season without some loved one, friend, partner, or coworker. According to the Centers for Disease Control (CDC), we have seen 3,389,099 deaths in America in 2020, and 3,161,734 in 2021 (so far). In 2019, the data suggests the total was 2,854,838. The increases look like this:


We are experiencing a higher volume of deaths, but 2021 demonstrates improvement (note that at the time of this writing ten days remain in 2021 and these figures are bound to change). 2020 was almost 20% higher than 2019, while 2021 is only 11% higher than 2019. 

It is as fair to note that the SARS-CoV-2 deaths in 2019 were either non-existent or unrecognized. The pandemic is believed to have first appeared in the U.S. in January 2020. Even if one believes the virus arrived earlier, any impacts were minimal until 2020. 

There has been a great deal of discussion about the characterization of, labelling of, causes of death. Essentially, some question whether recent deaths have been misattributed to COVID-19 through lackadaisy, misfeasance, or worse. In time, perhaps that will be studied and clarified. However, we can look at some interesting comparisons in the data that is at hand. 

In 2019, the CDC reports that "Influenza and Pneumonia" caused 49,783 deaths.  In 2020, influenza deaths were only 8,786. In 2021, that decreased to 758. Those figures are subject to change. But using the data currently reported, the pneumonia deaths were 351,893 in 2020 (combined with influenza = 360,678) and 373,392 in 2021 (combined with influenza = 374,149). Thus, the deaths from the two, "Influenza and Pneumonia," were markedly increased over the last two years. Though the two were only 2% of all deaths in 2019, they have been 11% and 15% of the total the last two years, illustrated thusly:


A significant increase in deaths from pneumonia, but curious fluctuation in the influenza rate. Notably, Influenza has been a persistent threat to our health. The CDC reports that in 2019 it was estimated to be responsible for 22,000 deaths; in 2018, 34,000; in 2017, 61,000. But, in 2020 only 8,786 and in 2021 only 758? 

The category "all deaths involving COVID-19," according to the CDC, for 2020 totals 385,427. For 2021 that increased to 420,016. Despite the vaccination and other medical advances, COVID-19 deaths increased in 2021; some may find that difficult to reconcile. But, notably, if the COVID-19, Pneumonia, and Influenza cases ("CPI") are removed from the "all causes" total, the overall U.S. death rate has decreased in both 2020 and 2021.  The CDC will eventually release data for "all causes" for those years, though the latest currently posted is for 2019 (which includes: heart disease, 659,041; Cancer, 599,601; accidents, 173,040; chronic lower respiratory diseases, 156,979, stroke, 150,005; Alzheimer's 121,499; diabetes, 87.647; and more). 


So, without the CPI cases), overall deaths in 2020 (2,642,994) were down 6% from 2019 and the 2021 deaths (2,367,569) were down another 10%? The "other" causes of death like heart disease and accidents seem to be pausing? Or, are some of them even decreasing in recent years? It seems incredible that death from non-COVID/Pneumonia/Influenza is decreasing, although perhaps we might expect less vehicle accidents and deaths. However, VOX reports auto accident deaths increased in 2020 to 42,060 from 39,107, up 7.5%. That suggests that other causes are even more constrained. But, is it possible that some who are passing from Cancer, Alzheimer's, diabetes and other maladies are listed as COVID or Pneumonia deaths because of some positive test, suspicion of contributing cause, record-keeping indifference or otherwise?

We laugh at Grandma got run over by a reindeer each year, and perhaps sing along. But, this year we find ourselves amidst a very high volume of respiratory-disease death as we close our first two years of SARS-CoV-2. There is hope on the horizon. Whether we are seeing this virus evolve to an endemic state or whether the vaccines are blunting effects remains to be seen. See A Transition (December 2021). The symptoms being currently described are notably less severe, persistent, and pernicious. However, it is clear that despite the hope we perceive for the future a great many Americans are presently passing from respiratory illness. More still are likely suffering through symptoms, treatment, and even hospitalization related to or impacted by this virus. As we celebrate our holiday, there are many to remember. 

As we close this year, I am reminded of the loss so many suffered this year by the humorous and preposterous Grandma got run over by a reindeer. Despite laughing, the fact is a great many have suffered loss this year, and the holidays will be challenging, as will be the prospect of a new year without someone(s). It is an apropos time for us to all remember that vaccination, some distancing, and continued focus on simplicities such as hand-washing are worth consideration. It is a good time for us to remember those lost, and those left behind to mourn. If you are lucky to have not suffered such a loss in the last two years, perhaps strive to remember that your neighbors, friends, and coworkers may not be as fortunate. They may need you more in these days than you know, even if that just means a periodic phone call, greeting with a wave, or email.

If you have suffered such loss in 2021, you are in my thoughts this season as we pause to celebrate. I push the image of haphazard reindeer assault from my conscious and return in that spirit to Nat King Cole's celebrated lyric to say simply "Merry Christmas to you." May your season be bright, your burdens few, and Happy New Year to you. 



Tuesday, December 21, 2021

Sacklers and the Perdue Bankruptcy

In September, Bloomberg reported that there was a plan to resolve the "thousands of opioid lawsuits that drove" Perdue Pharma, Inc. to bankruptcy. The story notes that the "Sackler family made billions of dollars on" an opioid product, OxyContin, that was approved by the Food and Drug Administration in the 1990s. Back then, we were repeatedly told that opioids were the answer to all of our problems. 

We were assured that there were no addiction concerns. Forbes notes that Oxycontin "quickly became a company bestseller thanks to aggressive marketing tactics — including claims that the drug was fairly non-addictive." Therefore, there was "a surge of doctors widely prescribing it for all kinds of pain, from the severe to the very minor. I knew a drug representative whose entire job was marketing Oxycontin to physicians. He described the task as "shooting fish in a barrel," and claimed to make a substantial living from minimal effort. 

The anecdotal stories of patients receiving many opioid doses following routine medical procedures are repeated often at conferences. One speaker related a family member receiving over 100 doses following wisdom tooth removal. And, many workers' compensation patients received prescriptions for opioids. Some patients received ever-increasing doses as time wore on and pain was not mitigated. Some now say that opioids themselves result in pain and lead to increasing dosage. There is some suggestion that a population of patients became opioid-dependent or even addicted.

The plan approved by a bankruptcy judge in September 2021 was specific to the bankruptcy of Perdue Pharma, Incorporated. Many people may be unaware that corporations in the United States are entities much like people in some regards. That is, they have existence that is separate from corporate owners or managers. Those individuals may come and go over time, but the corporation has a "perpetual" existence. Perpetual, that is, unless the corporation is dissolved voluntarily or in some involuntary manner, such as some forms of bankruptcy.

The bankruptcy plan as to Perdue was not a dissolution, but would result in marked changes in the business. Notable among those is the divorce of the Sackler family from the company; they would "sell their pharmaceutical holdings and forfeit their equity in Purdue." Furthermore, future Perdue earnings will be devoted to some extent to the treatment of drug addiction.

As part of the deal Judge Drain approved, "the Sacklers . . . agreed to contribute about $4.5 billion," of their personal assets to the company's coffers for distribution in the bankruptcy. And, in exchange, the Sacklers were each to "receive lifetime immunity from civil liability over their role in the opioid crisis." This is potentially important because some of the family members have apparently been sued over the role of Perdue in the opioid distribution and marketing processes, while they were at the helm.

It is important to note that corporate directors or  officers are generally not held responsible for decisions regarding how a company is run. This is called the "business judgement rule," and shields those individuals from the effects of their mistakes. In short, corporate leadership is not expected or required to be prescient or perfect, but to exercise rational and reasonable judgement. Successfully suing such leadership can be a daunting task. 

Similarly, successfully suing the shareholders of a company can be as challenging. The owners, or shareholders, are generally shielded from liability for a company's debts or actions. To reach the assets of owners (Sackler family members), a lawyer must demonstrate grounds to "pierce the corporate veil." That can be challenging under the best of circumstances, and is probably more challenging when the company in question is an entity with the legal acumen and sophistication that is required of pharmaceutical manufacturers. Therefore, it is worth noting that even without the bargained-for immunity, it may well be impossible for the family members to ever face financial liability for the marketing of Oxycontin. 

The bankruptcy deal was not without dissent. The U.S. Department of Justice was "staunchly opposed the deal," as were some of the others involved, including "the District of Columbia," and "nine states." They essentially accuse Perdue of "push(ing) doctors to overprescribe opioids," and contributing to the supply or opioids.

An appeal was filed, founded in some part upon the immunity from lawsuits for the Sacklers. One attorney general complained at the time that the family's $4.5 billion contribution, paid over a period of time" could be funded from "average investment returns,” which was characterized as "outrageous" and "unjust." The suggestion there is that payment of this $4.5 billion would not decrease or diminish the worth of the family's current assets (see below), but instead would diminish for a number of years the income and gain the family enjoys from their worth and assets. 

According to Forbes, the bankruptcy itself came through litigation. It describes that many states sued both the company and the Sackler family members, leading to a settlement involving dozens of plaintiffs and "include(d) $3 billion in cash from the Sackler family over seven years, and that Purdue Pharma would file for bankruptcy and be transformed into a public benefit corporation."

In October 2021, "Purdue Pharma . . . plead guilty to criminal charges around its marketing of OxyContin." In conjunction with that plea agreement, "five members of the Sackler family would pay another $225 million in civil penalties." Forbes notes that these payments have diminished the Sackler family holdings. Estimated to be about $13 billion in 2016, their worth is now estimated at only $10.8 billion ($10,800,000,000).

The Bloomberg story notes that about $11 billion was "shifted" from Perdue and invested "into a wide array of ventures" over about a decade beginning in 2008. It was noted that the "multi-generational fortune" of the family includes "more than a hundred trusts and a web of holding companies, partnerships, legal jurisdictions and strategies." Note the mention above of sophistication and acumen. In short, the deal would have the family "give up billions of dollars worth of assets in the Purdue Pharma bankruptcy settlement, but . . . still control a huge fortune"; in excess of $10 billion perhaps.

The week before Christmas 2021, according to BioSpace.com, a "federal judge . . . delivered a lump of coal to Purdue Pharma and the Sackler family." The bankruptcy plan was rejected by a judge who "overturned the bankruptcy agreement," at the urging of the U.S. government and "several state governments." In doing so, the Judge concluded that the Bankruptcy Judge did not have "the authority to stipulate protections against the Sacklers."

That is not the end of the story. This was an appeal from a Bankruptcy Judge decision to a District Court Judge. Though the District Court is generally a trial court, it exercises appellate jurisdiction over such bankruptcy decisions in some instances. In some geographic areas, the Circuit Court of Appeal considers such challenges directly, using Bankruptcy Appellate Panels, or BAPs. The parties in this matter have vowed to appeal the District Court decision to the Circuit Court of Appeal, where a three-judge panel will then review this matter.

Proponents of the plan worked out in September argue that "the bankruptcy plan that would see funds used to abate opioid-related debt accumulated by state and local governments battling addiction issues," and that "more than 95% of Purdue’s over 120,000 voting creditors, including 43 states and territories,” support the plan. They argue that the District Court decision and further appeal "will delay, and perhaps end, the ability of creditors, communities, and individuals to receive billions in value to abate the opioid crisis.”

The news is, assuredly, that the legal process has not concluded. In several months, we will learn what the Circuit Court concludes regarding the authority of Bankruptcy Judges, and whether they can convey civil immunity to stockholders of corporations through the bankruptcy process. That opinion will be anticipated, and should provide some interesting reading.  

 


 


Sunday, December 19, 2021

Little Black Boxes

In 1983, John Mellencamp (nee Cougar) released Little Pink Houses, an indictment perhaps of our (mis)perceptions of reality. He could have used a number of references, like picket fences, ice cream socials, drive ins, or more. But, the icon of "little pink houses" rapidly brings small town Americana to focus. We are a nation of communities. Flawed, challenged, and imperfect; led by the imperfect and subject to so many competing priorities and visions. Why are we drawn emotionally to little pink houses and other visions of a simpler time? "Ain't that America for you and me?"

It was phenomenal to be back in person at a major conference last week in Orlando. It was an outstanding opportunity to see many people and to hear a great many stories of their challenges through the pandemic, both professional and personal. It was, however, challenging in some ways. 

As I walked through the conference center early on, I stepped on an elevator lost in my own thoughts. I even conversed briefly to thank someone who had held the door for me. Minutes later, the person began conversing, and only then I realized who it was. I was lost in my thoughts, and persisting in the cloud that has gathered around us in recent months. As I ruminated on that exchange later, it occurred to me that we have been apart too long. Everyone has devolved into little names printed in little squares on little screens as we strove to maintain "connection" in an ever disconnected world. 


The fact is that technology has made the world more convenient and connected. Way before there was COVID, there was Internet shopping, videoteleconference hearings, e-filing, and more. We did it all before the pandemic, but did it more often thereafter because of the pandemic. The litigation process in Florida has pushed the envelope of modernity for years. And, in the process, the practice likely lost some level of personal interaction, community, and humanity long before the virus. It is fair to say that technology did not change the "what" of legal practice, but it certainly changed the "how" over the last two decades. 

The electronic processes have made litigation more convenient, rapid, and efficient. We adapted to PDF conversion, scanning, uploading, docket number references, and more. In the 1990s, Lawyers evolved from the telephone to email. In the 2000s they evolved from email to texting. Some more than others. See Don't Text and Depose (November 2021). That text and depose discussion reminded me of Mitch Ratcliffe:

“A computer lets you make more mistakes faster than any invention in human history-with the possible exceptions of handguns and tequila”

There are dangers in a variety of tools we employ in the modern world, and those dangers may be significant. A Hollywood actor, director, producer recently learned that when he pointed a handgun at a coworker and somehow killed her without, he claims, ever pulling the trigger. See Safety First (November 2021).

Everyone knows you do not point a gun at anything you do not intend to kill, or as some say "destroy." But, there are less obvious challenges. The computer offers similar challenges, "don't text messages you don't intend to have the Supreme Court read" during disciplinary proceedings. That is an extension, by some license of April White's 

“Don’t put anything in writing you wouldn’t want the world to read when you’re dead."
We have gained so much from technology, and without it the struggles of SARS-CoV-2 would have been far greater, persistent, and challenging. A great many relied upon technology through the pandemic, and livelihoods were literally saved through remote access to documents, cellular telephones, e-filing, e-service, and video interaction for medical appointments, depositions, hearings, and more. Technology literally saved us, personally and professionally. 

That is not to say it was easy. I spoke with a great many state leaders over the course of the pandemic and was persistently astounded at the way in which they were "overcoming challenges." One proudly told me in 2020 how they had "figured out" how to accept electronic trial exhibits (which we began doing in 2006). Another described challenges with swearing witnesses remotely (which we began doing in 2009). Another conversation detailed some procedural rules that did not accommodate even telephonic appearances for proceedings (which we began doing in the 1990s). There were many challenges across the continent. Some were less prepared for the quantum shift than others, and for some the shift was less of a shock. 

Florida's practitioners were exceedingly prepared by comparison. Despite some minor challenges and adjustments, we saw exceptional flexibility and aplomb from lawyers, doctors, adjusters, case managers, and more. It was not without bumps, bruises, and some outright failures. But, we persevered. The systems for injured worker care and return-to-work survived. And now, we return to the non-virtual world. Well, perhaps. 

I ran into a state official last week who was lamenting the challenges of managing remote workers. There was discussion of the complexities of on-boarding and retaining remote staff. Throughout the soliloquy, I was struck with easy (deceptively so) solutions to every issue that was raised: open the office, bring back the staff. Yes, despite the COVID vaccine, and more, some state offices across the continent remain closed or at least constricted. 

Some predict the world has changed for good. The prediction there is that there will never be live proceedings or office work again. That state official sold me the largest issue now is what to do with the agency real estate. This official confided that telecommuting is more efficient, cheaper, and is here to stay, predicting that there will never be a return to an office environment in that state. Well, perhaps. 

What do we lose in the digital world? We lose connection. There are digital methodologies that are better than others in this regard. Certainly, video is better than telephone, for example. But, they are each remote. They each are a shadow of reality, interpersonal reality. 

In the end, with people reduced to names on a screen, or worse, voices on a line, will we loose the humanity of community? Will we be reduced to seeing each other from time to time at a conference or convention? Will professional practice and our business relationships become as inconsequential and remote as Facebook (n/k/a Meta). Instagram, twitter, and worse have rendered "friendship" a whole new context in the Internet era. Better?  As one pundit wrote "it is better to have one loyal friend than 100 Facebook 'friends'." Well, perhaps.

The future? I am drawn to Men at Work, Who can it be now (1981), for the reality check of "It's not the future that I can see, It's just my fantasy." Too true. We cannot see the future. Predictions are imperfect, as are we all. In our minds, we project where the world is going, where we are going, and perhaps we are good guessers in our personal fantasy. But it is fantasy nonetheless. Well, perhaps (not?). 

But, I think those who believe in the efficacy of an all-remote, digital future are as na├»ve as those who cling to some return to a world absent of technology (see Boston Predictions, March 2018). In the time before SARS-CoV-2 we had already discovered "hybrid"; that is not new.  The technology was already leveraged, extant, and evolving. The pandemic did not change our world permanently and it should not change us either. I see us returning to various in-person experiences, just as we saw last week in Orlando. I see lawyers, already, returning to trials in person. That does not mean we will return to folks traveling an hour for just any 10 minute consultation, but some of those will be important enough to justify the trip.

This does not mean that we will eschew the technology, ignore the potentials of telecommuting for the right team members in the appropriate circumstance, or abandon the remote medical appointment for follow-up or monitoring. But, I am doubtful that we retain telemedicine for that "complex initial evaluation," or "surgical consultation." The point is that professionals will make choices about what to attend in person, just as they did in the pre-SARS-CoV-2 world. That digital has become more accepted, more reliable, and less expensive will influence decisions, but those decisions will remain decisions. Success will come to those who make intelligent and careful decisions considering cost, efficacy, and probability.

Regardless of how much time and money they may save, I am doubtful that John Cougar or anyone else will ever pen "Little Black Boxes, for you and me." I would suggest that instead these will be remembered as a legacy of challenge, and will be increasingly relegated to times of convenience or economy. In time, we will all likely be able to describe them to our grandchildren similarly to the way we all heard of WWII ration books, dust-bowl farmers, folk singers, and more. Intriguing, enriching, but historical and yesterday. Our grandkids will roll their eyes if we voice recollection of the great pandemic, and good for them. 

And, if we are lucky, opportunities will abound for in-person interaction. That interaction will be increasingly critical whether that is a monthly Inns of Court meeting, a conference in Orlando, Coconut Point, Tallahassee or beyond (The FLJCC is back with a live program at the Florida First District Court in February, stay tuned for details). Certainly, I think, digital interaction will continue to broaden and spread. More will accept technology benefits, and as we return to a non-pandemic world there will be more discretion regarding what merits a trip versus a videoconference.

What did I get from WCI 2021? I enjoyed rekindling relationships. I got positive reinforcement from handshakes, smiles, gestures, personality, and people. It was a welcome respite from little boxes on a screen. If I didn't see you in Orlando, or failed to recognize you following our long "winter of discontent" (Billy Shakespeare, Richard III, 1597), I am sorry. As we persevere, I look forward to seeing you all (again) soon. But, if I still fail to recognize or acknowledge, chock it up to our long isolation and shake me from my COVID reverie, so we can have a real conversation as we rejoin our real community. 





Thursday, December 16, 2021

A Transition?

In July 2021, a post noted the potential for SARS-CoV-2 to transition from pandemic to endemic status. See How Does the Story End (July 2021). There, I noted that 
"The science from past pandemics suggests to the Statnews writer that 'viruses morph from pandemic pathogens to endemic sources of disease within a year and a half or two of emerging.' That is not to say this must be the same, because this is not an influenza we are dealing with, and its pattern and timing could be different. This is, after all, a "novel" coronavirus. There is some value to prior experiences, but not a true roadmap."
At least in Florida, the first documentation of SARS-CoV-2 was in March 2020. However, according to the Centers for Disease Control, there was a "cluster of patients in Wuhan, Hubei Providence, China" by December 12, 2019, thus the name for our reaction has not been "COVID-20." There are those who believe the virus "was likely circulating undetected for at most two months before" the first cases were diagnosed in December. 2019. Thus, by any estimation, we are 24 to perhaps 27 months into our relationship with the SARS-CoV-2.

The "morphing" has been persistent, and sometimes newsworthy. According to Johns-Hopkins, variants "are neither new nor unexpected." As these appear, they are labelled "of interest," "of concern," or "of high consequence." They are "of interest" if "characteristics . . . predict greater transmissibility, evasion of immunity or diagnostic testing or more severe disease." To be "of concern," it must be "more infectious, more likely to cause breakthrough or re-infections in those who are vaccinated or previously infected." And, to be of "high consequence" it must be "a variant for which current vaccines do not offer protection." 

Omicron is the latest of the variants. The New York Times reports that "There are now seven “variants of interest” or “variants of concern.” They have each been given a Greek letter designation because of the somewhat woke conclusion that "describing variants by the places they were detected 'stigmatizing and discriminatory.'" Those "of concern" include Alpha, Beta, Gamma, Delta, and Omicron. Those "of interest" are Lambda and Mu, according to the World Health Organization (WHO). There are no known current "high consequence" variants to worry us. 

I am reminded, in that context, of Winston Churchill's
"Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning."
And, it is possible that this latest mutation signals the beginning of the end of the pandemic state. It may be that Omicron is a more infectious form of COVID-19 that is nonetheless perhaps less symptomatic and deadly. That, of course, remains to be seen. But, it would admittedly be somewhat consistent with the "year and a half or two of emerging" prognostication of Stat News cited last July.

One physician suggests that this variant being "four times more contagious than a delta variant," it is possible that it "will crowd out the delta variant eventually.” This article suggests again that COVID could become "nothing more than a recurring endemic cold." That is, something we would have to live with, but which would be less deadly and threatening.

The discussion of endemic status has been in the news on various platforms recently. See El Paso doctor believes COVID-19 will go from pandemic to endemic, and The coronavirus may be here ‘for the rest of our lives,’ doctor says. There is suggestion of the potential for annual inoculations and discussion of the promise of newly-developed anti-viral drugs. Though there is ample debate, I had a conversation this week at the WCI conference with a doctor that advocates Remdesivir and chloroquine. Perhaps these anti-viral treatments, rather than vaccines, will play a large role as the disease morphs to an endemic state.

The endemic view is not unanimous. The British Broadcasting Corporation (BBC) contends we can learn lessons from South Africa's experience with Omicron. It concedes that hospital stays are shorter, fewer patients require oxygen or ventilators, and reported symptoms are less severe in a general sense. However, these do not persuade some that the variant is "milder." Instead, some contend that this demonstrates only that the "rate of vaccination and natural immunity in the population" is more predominant.  Thus, the vaccine is seen in this analysis or hypothesis as not preventing infection but markedly militating severe symptoms. 

In the end, there is not proof. But, perhaps the increased infection rates with Omicron will produce increased populations with viral resistance. In a society that has perhaps reached peak vaccination willingness and lacks dictatorial authority to force 100% inoculation compliance (whatever that may mean as the definition of "fully vaccinated" shifts), perhaps natural infection-immunity increases population (herd) immunity and may deter further spread? Possibly, we are either entering the endemic stage of this viral onslaught, or nearing that entrance? Whether one believes the StatNews prediction on timing or not, it nonetheless seems reasonable regarding the endemic phase to say "its about time."

At the WCI this week, I repeatedly heard the expressions of relief to be back in person. The programming was outstanding and the crowds were notable. There were folks wearing masks, and a fair amount of hand sanitizer was utilized. A few folks even turned down a handshake. Those people are looking out for their health, and one never knows what circumstances they may face (one friend explained to me this week about an immune issue with a child at home; another recently had surgery and is under significant ongoing care; yet another suffers an immuno-depressive malady I can neither recall or pronounce). 

It is imperative as this pandemic creeps on that we remember people are different, face different needs and concerns, and their decision to mask, distance, or eschew physical contact is something we must all respect and understand. Similarly, if someone elects not to vaccinate, that is a personal choice. Our understanding of peoples' personal circumstances (known to us or not) and choices is an imperative part of our moving forward through this challenge as a community. 








Tuesday, December 14, 2021

What is Different

Live from Orlando, Florida it is the Workers' Compensation Educational Conference (WCEC). Here, an unbelievably diverse and talented assortment of people bring workers' compensation to the fore each year and strive in their own way to make it better. There is scholarship, introspection, criticism, and reflection. It is a worthy effort to better understand the community of workers' compensation, how it is, and what it perhaps could be. 

There is a great deal of change in our world. Through the lens of age, pandemic, or both, I have come to notice change recently. I am confident that change is a constant in our world, perhaps the only constant. Therefore, it is not new and is to be expected. But, as I arrived in Orlando for the 75th Annual Workers' Compensation Conference, I found myself nonetheless noting changes. I have been attending this conference for thirty years, and it has become somewhat ingrained in what I do. 

Upon arrival, I found the Marriot World Center bustling and busy. There were lines to check in, though they moved rapidly. There were a multitude of familiar faces. Yes, faces. Smiling, happy, faces. Certainly, a few wore masks, but it was a minority. It was, in a word, temperate. The humidity was persistent, but that August temperature was missing. I enjoyed walking outside, a reception on the pool deck, and more. That was an intriguing change. In my years attending this program, it has never been in December. So, Change #1, weather. 

The first program adjustment to catch my attention was the missing Moot Court competition. The annual Zehmer Moot Court has been part of my experience here for three decades, and has been a highlight for me the last 20 years. One of the great benefits I perceive in the WCI is its impact on our community, and that is particularly notable in the impact on young people. Perhaps it is my perspective only, but I think the Moot Court is perhaps the longest-thriving student impact of this conference. 

But, alas, in 2021 the conference shifted to December, and there was a challenge with school's final examination schedules. The stalwarts that produce the competition (Hon. Jacquelyn Steele, Tracey Hyde, Esq., and Amie DeGuzman, Esq.) did not miss a beat. They shifted the preliminary rounds to the Internet, much in the way adjudications shifted during COVID. I understand that there was a lot of technical support from Florida State University School of Law, see Perseverance and Poise (November 2021). The contest finals will be held in Tallahassee on January 7, 2022, and will be live broadcast for all the competing teams to watch. The competition goes on, but I missed the Sunday excitement of live Moot Court oral arguments at the WCI, Change #2.

The WCI proposed earlier this year to provide a greater opportunity for Kids' Chance in 2021. WCI has been supportive of Kids' Chance of Florida (KCFL) program since its inception in 2015. Jim McConnaughhay serves on the Kids' Chance board of directors. Each year, WCI welcomes the KCFL team to make a scholarship presentation at the conference opening session. It is nice to see young people succeeding, enthusiastic about their studies, and focused on their futures. 2021 was no exception, and we were privileged to meet an outstanding scholarship recipient who is striving for a master's degree. She is an Ichthyologist, and her poise and enthusiasm for her future are heartwarming. 

But, in 2021, the long-standing conference golf tournament became the Kids' Chance of Florida Golf Tournament. For the first time in my history at the conference, I spent Sunday morning in casual clothes moving boxes and taking pictures. I did not contribute the effort that some did. In particular, I noted the amazing work of Kimberly Helwig (NCCI), Stacy Hosman (Hosman & Associates), Linda Vendette (Zenith) and Bob Wilson (WorkersCompensation.com). And, there were a great many others who likewise devoted time and effort to produce an enjoyable experience for 128 golfers. My minimal effort at amateur photography, however, was enjoyable. This effort replaced my Moot Court judging this year, a different way to engage youth, but as rewarding. Change #3, Golf Tournament attendance. 

For as long as I can remember, the event to attend at WCI is an outstanding reception on Sunday night. It is an honor to be invited, and was traditionally held close to the top floor of the tower in a nice suite. This shifted in 2021 to the pool deck. I do not know whether that was to gain the perceived health benefits of being outside or a recognition of the possibilities presented by December weather. I had the chance to speak with Charles Ehrhardt, Florida's evidence expert. How often do you speak to a living legend? In a word, the shift of this reception to the patio was outstanding, the atmosphere accommodating, and the company exceptional. Change #4, more outside activity. 

Finally, there were some somber moments. Another challenge that comes with age is the inevitability of death. This community lost some since we last gathered in Orlando in 2019. There were remembrances. I noted in Two Emails and Two Stories (September 2021), the passing of Wayne Myers. There have been other losses in the last two years. Steve Rissman noted the passing of Robert Barrett in the WCI opening session. It was an emotional moment in which Steve noted the loss experienced by the community that is workers' compensation. 

There will be more such moments Tuesday as difficult losses are remembered. Many will remember Sherrie Goldsmith from so many conferences past? Ms. Goldsmith passed earlier this year, and will be remembered fondly. She faced so many challenges, and yet remained devoted to helping those injured at work. She was persistently "that smiling lady," though more recently "the lady in the pink hat." She was a fixture, a cheerful contributor, and a great conversationalist. She remained so even confined to a wheelchair. Certainly, the passing of friends and colleagues is not a "change," but as we age the pace and frequency of such losses certainly seems to change. It is hard when contemporaries pass. Workers' compensation will not be the same without these folks, and so their loss is Change #5 for us all; our loss. 

Then there were things that did not change. The programming has still been outstanding. From the opening session, industry keynote, throughout Monday, the programming I attended was second to none. The speakers that are drawn to this event are truly leaders in their fields. They bring frank criticisms and compliments. There are many no-holds-barred conversations. It has been said that conversations around the nation begin at WCI, and time and again that seems to be borne out. The Out Front Ideas team, Kimberly George and Mark Walls, produced a great keynote program to kick-off the conference, a continuation of their efforts to bring analysis to what we do. 

Early Sunday, I ran into a hotel employee that has been a stalwart supporter of this program for as long as I can remember. When I departed this conference in 2019, he announced his retirement. I never expected to run into him again, yet here he was. It was an unexpected continuity. His focus remained upon making this program succeed. It was gratifying to see him again. He makes this conference better, and yet few probably even notice he is there. He and his team are in the background, arranging, correcting, and facilitating. How many of us take the time to notice the people that actually make the world turn? How often do you take a moment to say "thank you" to people that make things work? Thank you "big John," and the conference center team for all you do to make this a quality experience. 

The conversations have not changed. We are back face-to-face in animated exchanges about workers' compensation. Some would look askance at the suggestion that there is always something new in workers' compensation, but every year there is something novel to discuss. Perhaps the most interesting thing about this topic is that persistence of evolution and experience. One might say many things about their perceptions of workers' compensation, but I have never heard anyone complain that it is mundane or boring. 

So, in a nutshell, there are changes here in 2021 as to programming, weather, and some activities. But, they are overshadowed by the consistencies of people, challenges, and education. Though we are one day in, and there is much to come, it has been a great chance to see adjusters, risk managers, a variety of claimant and defense attorneys, physicians, judges, safety experts, and so much more. It is cathartic. I was enthused when we returned to live programming for the Forum, see We're Really Back (April 2021), and I am as enthused today. I am enjoying seeing the faces, hearing the voices, and being with you all once again. 

As usual, I have learned a great deal, and as it dawns this morning on the second day of programming I am eager to see what Tuesday brings. Multiple times already, I have heard cybersecurity mentioned, and I am eager to host the first WCI cybersecurity breakout Wednesday morning. It will be another novel topic starting here in Orlando, but I suspect it will be on many minds soon as the challenges demand our attention in days to come. 

Sunday, December 12, 2021

Reminders and Lessons on Appellate Review

The First District Court in June 2021 issued R.C. v. Dep't of Agric. & Consumer Servs., Div. of Licensing, 323 So. 3d 275, 301 (Fla. Dist. Ct. App.), cert. denied, 323 So. 3d 366 (Fla. Dist. Ct. App. 2021). It is interesting reading, though it has nothing whatever to do with workers' compensation substantively. It is an en banc decision of the Court, in which there are two concurring decisions, one dissent, and one opinion that "concurs in part and dissents in part."

The case is interesting for its discussion of various legal issues. However, I write of it on two specific points that may be of value to anyone involved in litigation of workers' compensation matters" the "tipsy coachman," and the certification of important questions.

The "tipsy coachman" is not new to these pages. See You can call me Dave (July 2021); The Role of the Tipsy Coachman (October 2017). It is a venerated doctrine of the courts, although the use of the particular label is perhaps more popular in some jurisdictions than others.

The dissent in R.C. references the “tipsy-coachman” doctrine in the context of the sometimes challenging legal construct of "preservation." Appellate courts only review on appeal issues that were "preserved" in the trial proceedings. In short, a litigant that wishes to have an issue addressed by an appellate body is obligated in most instances to raise that issue with the trial judge (through an objection to evidence, a legal argument, etc.). This allows such issues to be fully considered in the context of the trial, and perhaps remedied there without resort to appeal. The dissent in R.C. explains again that the "tipsy coachman" allows the Court "to affirm a trial court judgment that is 'right for the wrong reason.'" But, it explains, "there is no such thing as a tipsy-coachman reversal." That is a conclusion that a trial judge determination was wrong for reasons not preserved. That is an interesting reminder of the importance of preserving error when trying a case.

In addition to its substantive decisions, the Court was also asked to "certify" the questions presented to the Supreme Court. That is one of the paths to further appellate review that is set forth in Article V. of the Florida Constitution. This allows the Supreme Court to review" a "decision of a district court of appeal that passes upon a question certified by it to be of great public importance . . .." This is is, one must remember, a permissive jurisdiction. Such a certification allows ("may") the Supreme Court to review a matter, but does not compel the Court to accept such jurisdiction. That is a critical reminder that Supreme Court review, in most instances, is not mandatory.

In July, 2021, the Court addressed the motion for certification in R.C. The Court denied the request to certify the issues to the Supreme Court, and there are two concurring opinions on that point. Concurring opinions are not of precedential authority, that is they do not control decisions in future cases, but they are very interesting reading. These opinions outline the purpose of a court hearing a case en banc, and clarify the concept of "great public importance." There is insight as to why a case might merit en banc consideration by the court and yet not merit that certification. The explanation is important reading for those who would practice appellate law, or who would try workers' compensation cases and be responsible for establishing the record, preservation, in the trial.

A dissent regarding the denial of certification explains the perspective that the case involves questions of "exceptional importance." It reminds that en banc proceedings are "entirely judge-initiated," and that "parties cannot seek an en banc hearing." It asserts that this process is "reserved for only the most critically important cases," is "infrequent," and "occurs because a case's importance surpasses that of essentially all others on our docket." Thus, it is argued, such cases "present() an issue that is undeniably 'exceptionally important.'"

A second dissent regarding the denial of certification reminds that the "certification" path is only one of the potential foundations for Supreme Court jurisdiction in any particular case. That also is of importance to litigators involved in such appellate disputes. There are sometimes multiple potential foundations for legal arguments, and it is sound to remember that potential. 

The concurring opinions explain, however, "it may be appropriate for the Court to take one of the cases en banc to resolve the issue in a way that will maintain uniformity." This notes that "the first and primary purpose of the en banc rule" is "to provide a tool for the courts of appeal to address intradistrict conflicts." There is value in consistency as it allows attorneys to provide sound advice to clients about the probabilities of success in a given situation. Those probabilities and predictabilities allow those clients, the parties, to make sound decisions about their chances of prevailing in litigation and allows them to make reasoned decisions about resolving issues through agreement rather than trial.

A critical point made by the concurrence is that despite there being such a foundation for en banc consideration, the issues in such a case might nonetheless never "approach() the level of great public importance required for the certification of a question." Stated more simply, these are two distinct decisions of the Court: whether the issue(s) should be heard by the entire Court in the interest of uniformity (en banc), and second whether the presented issues are of such magnitude that they merit certification to the Supreme Court. Thus, two decisions that are distinct and separate.

It is important for the practitioner to remember some critical points. First, preservation of error remains a critical responsibility of the parties and therefore their counsel. It must remain a focus of trial counsel, and requires careful and persistent attention throughout the litigation process. Second, it is probable that a party who perceives and has preserved error will have one chance for relief. The review of the District Court is likely to be the final word. While it is possible that some issue may be perceived as sufficient to convince the entire court to review, there is no guarantee of such en banc review. Third, it is possible that an issue(s) may warrant such a review and yet not warrant certification as "great public importance." Finally, the judges' opinions remind that such certification may not be the only basis upon which such Supreme Court review might be sought.

For those who would better understand the trial and appellate process, R.C. is interesting reading. There are both reminders and lessons that are worthy for litigators, including those who focus on workers' compensation.