Wisconsin asbestos attorney Frank Pasternak was interviewed November 17, 2002 and again on February 8. 2006 by Wisconsin’s Milwaukee Journal-Sentinel in articles entitled “Curing the asbestos conundrum: Issues offer no easy solution” and “Senate to debate asbestos fund.”

Wisconsin asbestos lawyer Frank Pasternak discussed in the articles issues involving Wisconsin asbestos cases, asbestos companies and incidents of asbestosis and mesothelioma.  The articles quote Attorney Pasternak stating:

“The number of asbestos lawsuits has peaked in recent years because an illness such as mesothelioma – which is directly related to asbestos – can take 30 years to develop and may have stemmed from workplace exposure in the 1960s and 1970s, said Milwaukee attorney Frank Pasternak.

Asbestos claims are difficult to prove, and there are laws to protect companies from frivolous lawsuits, said Pasternak, who represents asbestos plaintiffs. ‘I have great faith in the justice system. Let the legal marketplace work itself out,’ he said.”

*  *  *

[With regard to a proposed asbestos bailout for corporations] “Taxpayers will end up footing the bill for corporations,” said Frank Pasternak, a Milwaukee attorney who has handled asbestos-victim cases.

Wisconsin asbestos attorneys have brought litigation involving several Milwaukee and Wisconsin companies as well as U.S. Navy related asbestos and mesothelioma cases.  Often these are wrongful death and other personal injury cases involving lung diseases, like mesothelioma.

Companies that profited from asbestos in the past and include asbestos manufacturers and sellers and insurers that were paid to insure such companies have floated various schemes to “reform” the judicial process for managing asbestos claims.  The asbestos-industry has known about the dangerous effects of asbestos since the early 1900s.  Medical articles and scientists described asbestosis, lung cancer, and mesothelioma in the 1910s, 1920s, and 1930s, and in fact, the first asbestos lawsuit took place during that time.  Yet, into the 1950s and 1960s companies like W.R. Grace and Owens-Corning sold asbestos ignoring asbestosis, lung cancer, and mesothelioma.  Because a lot of asbestos products were sold in the 1950s and 1960s and asbestos illnesses are latent or hidden for 15-45 years, the extent of the illnesses were not known to the public until the 1970s.  After looking into the dangers, the Environmental Protection Agency finally issued a rule banning the use of asbestos in the manufacture of products in 1989, but the asbestos industry fought the ban so they could continue to profit from asbestos products.

Since 1960 more than 250,000 persons have died the horrible suffocating death associated with asbestos-caused mesothelioma and 150,000 more are predicted to die.  Millions of others have had exposure resulting in asbestosis and related lung disease.

How large is the problem of motor vehicle-related deaths among children?

• Injuries resulting from motor vehicle crashes are the leading cause of death for children 1-14 years old. In 1998, they accounted for 46% of all unintentional injury-related deaths in this age group.
• Since 1975, the motor vehicle-related death rate for children between 0-12 years has decreased 49%. Death rates for pedestrians and bicyclists declined about 70%, while death rates among child passengers in motor vehicles decreased 13%.
• In 1998, 2,027 children 12 years old and younger were killed in motor vehicle crashes. Of those who died, 65% were passengers in vehicles, 23% were pedestrians, and 7% were pedalcyclists.

What is the role of alcohol in child passenger injuries and fatalities?

• Nearly 24% of children 0-14 years old who died in motor vehicle crashes in 1985-1996 were killed in alcohol-related crashes.
• Results from the same study showed that 64% of all child passengers who died in motor vehicle crashes involving a drinking driver with a BAC > 0.10 g/dL were riding in the impaired driver’s car.

What can be done to improve child passenger safety?

• When properly installed in passenger cars, child safety seats reduce fatal injury by 71% for infants (younger than one year old), and by 54% for toddlers (between 1 and 4 years of age).
• 57% of motor vehicle occupants 0-15 years old who were killed in fatal crashes were unrestrained.

What percent of children wear occupant restraints in the United States?

• A 1996 survey found that 85% of infants, 60% of children aged 1-4 years, and 65% of youths aged 5-15 years were restrained.
• Restraint use by young children varies by driver restraint use. Only one of four children between 1-4 years old who rides with an unrestrained driver is restrained.
• Many children ride in child safety seats that are not properly secured. A survey of nearly 6,000 children found that only 21% of children in safety seats were properly restrained.

When should rear-facing child safety seats be used?

• The Academy of Pediatrics recommends that infants ride in rear-facing safety seats until they are at least 20 pounds and 1 year old. When used properly, these seats reduce the risk of neck injury to infants.

 

• Infants riding in rear-facing child safety seats should never be placed in the front seat of a vehicle with a passenger-side air bag.

 

When should children switch from rear to forward-facing child safety seats?

• Generally, children who have outgrown their rear facing seats and are at least 1 year of age and 20 pounds, up to 40 pounds, should ride in forward facing safety seats as long as they fit (i.e., ears should be below the top of the back of the seat, with shoulders below the seat strap slots).

 

How should children be restrained when they have outgrown their child safety seat?

• Regardless of age, children who have outgrown their child safety seat (e.g., weigh more than 40 pounds or stand taller than 40 inches) should use a belt-positioning booster seat. Lap/shoulder belts usually do not fit properly until a child is 4″10″ tall and weighs 80 lbs. Most children under 10 should use a booster seat to ride safely.

 

Are air bags dangerous for children?

• Yes. Currently air bags inflate at speeds of up to 200 mph. This blast of energy can severely hurt or kill passengers who are too close to the air bag. Children are more likely than adults to be too close to an air bag when it deploys.
• Until passenger vehicles are equipped with air bags that are safe and effective for children, those who are 12 years old and younger should not ride in a front passenger seat that is equipped with an air bag.

 

Recommendations for preventing injuries to infants and children

• All children 12 years old or younger should be properly secured in the back seat whenever possible this reduces their risk of fatal injury by 36%. Air bag-related injuries that have occurred to children would have been prevented if the children had been riding in the back seat. Regardless of whether the vehicle has an air bag, the rear seat is the safest seating position.
• Infants in rear-facing child safety seats should never ride in the front seat of a vehicle equipped with a passenger air bag. Infants in rear-facing child safety seats must always ride in the back seat facing the rear of the car.
• All children should be placed in the restraint device that offers the maximum protection for their size and age.
• Children who have outgrown child safety seats and booster seats must wear seat belts. Shoulder belts should never be placed behind the passenger’s back or under an arm.

 

Asbestos is a known human carcinogen or cancer-causing agent.  In Wisconsin, asbestos has been used in building materials, paper products and plastics.   Asbestos is also found in Wisconsin in asbestos-cements, friction products, textiles, packings and gaskets and asbestos-reinforced plastics.

Mesothelioma has caused the death of many Wisconsin residents.  Nationwide, more than 250,000 individuals are known to have died from mesothelioma.  Wisconsin asbestos sites include breweries, mills, power plants, utility operations, nuclear energy plants, utility construction facilities, WE a/k/a WEPCO a/k/a Wisconsin Energies plants, hospitals, universities and colleges, and many other locations. Wisconsin Mesothelioma is typically caused at indoor facilities where asbestos was released into the air.

Mesothelioma symptoms may not appear until 30 to 50 years after exposure to asbestos.  Shortness of breath and pain in the chest due to an accumulation of fluid in the pleura are often symptoms of pleural mesothelioma.  Treatment for mesothelioma depends on the location of the cancer, the stage of the disease and patient’s age and general health.  Standard options include surgery, radiation therapy and chemotherapy.

Attorney Pasternak was honored as one of the Top 50 “Super Lawyers” in the December 2009 issue of Milwaukee Magazine, as chosen by his peers and through independent research of Law & Politics.  Only the Top 8 plaintiff’s personal injury law firms in Wisconsin have any such personal injury attorneys.   Attorney Pasternak was also voted “Best Attorney” by CNI Newspapers in its “Best of the Burbs” survey and is an AV® Preeminet rated attorney.

Throughout his career as a Wisconsin personal injury attorney, Frank Pasternak has focused only on personal injury and wrongful death cases. Such litigation has been primarily in Wisconsin, but has involved cases in Arkansas, California, Florida, Indiana, Kentucky, Nevada, Oklahoma, Pennsylvania, Texas and Utah. Several of these personal injury cases and wrongful death lawsuits resulted in multi-million dollar verdicts or settlements, including a falling merchandise trial against Wal-Mart, which in 2001, resulted in a final judgment of $8,956,879.00 that including interest resulted in a recovery exceeding $11,400,000.00.

Memberships

• American Association for Justice: Charter Member, President’s Club; Past Wisconsin State Delegate; Board of Governors, New Lawyers Division; Member, Section on Toxic, Environmental and Pharmaceutical Torts; and Member, Motor Vehicle Collision, Highway and Premises Liability Section
• Wisconsin Association for Justice: Board of Directors; Sustaining Member; and Past-Chair New Lawyers Section
• State Bar of Wisconsin
• Trial Lawyers for Public Justice Foundation
• Roscoe Pound Foundation
• Civil Justice Foundation
• Waukesha County Bar Association
• St. Thomas More Society
• Brookfield Chamber of Commerce

Selected Speeches & Lectures

• “A Crash Course in Trial Preparation & Trial Notebooks,” Wisconsin Association for Justice, December 2008, Milwaukee, Wisconsin
• “Preparation and Commencement of Litigation,” Milwaukee Bar Association, April 2008, Milwaukee, Wisconsin
• “Litigation Skills for Legal Staff”, Lorman, Inc., June 2007, Brookfield, Wisconsin
• “Litigation Skills for Legal Staff”, Lorman, Inc., June 2006, Milwaukee, Wisconsin
• “A Practical Refresher on Litigating the Wisconsin Auto Injury Case,” National Business Institute, November 2004, Milwaukee, Wisconsin
• “Paralegal’s Role with Minor Settlements,” Wisconsin Academy of Trial Lawyers Spring Seminar, February, 2004, Green Bay, Wisconsin
• “Perfecting Minor Settlements,” Wisconsin Academy of Trial Lawyers Tort & Technique Seminar, October, 2003, Madison, Wisconsin
• “Wisconsin Injury & Hospitality Law,” Milwaukee Area Technical College, March, 2003, Milwaukee, Wisconsin
• “Adjusting Motor Vehicle Accident/Premises Liability Personal Injury Claims in Wisconsin,” National Business Institute, November 2002, Milwaukee, Wisconsin
• “Motions in Limine in the Connective Tissue Case,” Wisconsin Academy of Trial Lawyers Tort & Technique Seminar, October, 1999, Madison, Wisconsin
• “An Internet Primer for Lawyers: On-Line Marketing, Research and Ethics,” Wisconsin Academy of Trial Lawyers Convention, December, 1997, Milwaukee, Wisconsin
• “What do you wish someone had told you about being a litigator?”, University of Wisconsin Law School, November 1997, Madison, Wisconsin

Selected Publications

• “Rebutting Anti-Civil Justice Propaganda,” The Verdict, Wisconsin Academy of Trial Lawyers, 23:2, Summer 2000
• “Permitting Pretrial Discovery of Surveillance Material is Long Overdue,” The Verdict, Wisconsin Academy of Trial Lawyers, 23:1, Spring 2000
• “Tortfeasors Try to Profit from Managed Care,” The Verdict, Wisconsin Academy of Trial Lawyers, 22:3, Summer 1999
• “Important Steps in Discovery Against Wal-Mart,” ATLA Motor Vehicle Collision, Highway & Premises Liability Section Newsletter, Fall 1998

Editor & Instructor

• James Publishing Company, Editorial Advisory Board, 2008
• Marquette University Mock Trial Team, 1995-1998, Milwaukee, Wisconsin

Community Service

• Brookfield Soccer Association
• Elmbrook Education Foundation
• Elmbrook School District, D.A.R.E. Program Sponsor
• St. John Vianney Parish, Parish Council and Christian Formation Board
• The Guest House of Milwaukee
• Archdiocese of Milwaukee: Campanile Society and Saint Francis Seminary Pallium Scholarship
• Knights of Columbus
• Catholic Charities, Good Samaritan Society
• Sharon Lynn Wilson Center for the Arts
• Brookfield Central High School
• Brookfield Junior Lancers, Board Member
• City of Brookfield, Wisconsin, Police & Fire Commission, Commissioner

Attorney Zirgibel was honored as a “Super Lawyer” in the December 2009 issue of Milwaukee Magazine, as chosen by his peers and through independent research of Law & Politics. With all of Jeff’s trial experience he became Board Certified as a Civil Trial Specialist by the National Board of Trial Advocacy on July 21, 2003.  He was one of the youngest lawyers in the country to ever receive that honor.

Throughout his career as a Wisconsin personal injury attorney, Jeff Zirgibel has focused only on personal injury and wrongful death cases. Such litigation has been primarily in Wisconsin, but has involved cases in Arizona, California, Colorado, Florida, Georgia, Illinois, Indiana, Iowa, Kentucky, Michigan, Minnesota, Mississippi, Nevada, New Mexico, Pennsylvania, Tennessee, and Texas. His work for plaintiffs in personal injury matters has resulted in millions of dollars in settlements for his clients.

Memberships

• American Association for Justice
• Wisconsin Association for Justice: Member Speakers Bureau; Medical Records Task Force; and Litigation Committee.
• State Bar of Wisconsin: Board of Governors
• Waukesha County Bar Association
• National Board of Trial Advocacy

Selected Speeches & Lectures

• “Ethical Considerations in Personal Injury Litigation,” NBI, Inc., December 2007, Milwaukee, Wisconsin
• “Intro to Law,” April 2, 2008, Marquette University
• “Reality Day.” Greendale High School 2006 to Present

Instructor

• Wisconsin Lutheran High School Mock Trial Team, 2000-2002, Milwaukee, Wisconsin

Education

• University of Wisconsin-Milwaukee, B.A., 1993
• Drake University Law School, J.D., 1996
• Member, Drake Law Journal Staff
• Member, Blackstone Inn of Court
• Member, Drake Law School Development Committee
• Member, Delta Theta Phi Law Fraternity
• Student Attorney Drake Legal Clinic

Community Service

• Merton Athletic Association: Board of Directors, Coach K-1 Soccer, Coach Pitch Baseball 5-6yr old League Director
• Menomonee Falls Community Chamber: Board of Directors, Chair Membership services committee
• YMCA coach: 4-5 year old Soccer, 5-6 year old basketball
• Oakwood Church, Delafield, WI
• Sharon Lynn Wilson Center for the Arts, Lead Sponsor for Wilson Center Golf Classic
• Lake Country Rotary
• Upwards Basketball K-1 Coach
• Brookfield Chamber of Commerce

In February, Gov. George W. Bush released his “Comprehensive Plan to Reform the Civil Justice System,” which declares that “A litigation explosion is clogging America’s civil courts, costing U.S. high-tech companies, small businesses, and consumers more than $150 billion a year.”[1] It also states that “As the number of lawsuits has increased, so too has the size of the awards” and claims that there has been “a loss in confidence in the civil courts.”

Thomas J. Donohue, President of the U.S. Chamber of Commerce, has skewed the Chamber’s agenda towards “Legal/Tort Reform” calling for “comprehensive tort reform legislation, including product liability and medical malpractice reforms, to restore balance to the U.S. civil justice system.”[2] Mr. Donohue seeks a change in the laws that will “reform rules pertaining to punitive and non-economic damages and contingency fees, limit the application of joint and several liability, discourage frivolous lawsuits and restore credibility to the judicial system.”  Further, the Chamber’s website proclaims that “product liability litigation and resulting insurance costs caused 47 percent of American businesses to cut product lines and/ or raise prices” and that “rampant medical malpractice litigation has had a dramatic effect on the U.S. health care system.”

To a trial lawyer, these sentiments are not surprising.  This type of misinformation has essentially run unbridled over the course of the last 20 years.  It was for this reason that I was recently surprised to read an exceptional series of articles done by The Dallas Morning News.[3] The articles, which are inspiring because they speak the truth and troublesome for the same reason, debunk some of the myths and propaganda touted by anti-civil justice proponents.  If we as new trial lawyers, hope to continue helping people through our chosen vocation, then we need to embrace such journalism and use it to combat the political rhetoric.  Hopefully, this article gives a few of us a start on this so that we may use the facts to speak about these issues within our sphere of influence – our clients, peers, and families.  Here, briefly are some highlights of the paper’s findings and some other related information.[4]

The Dallas articles report the findings of a six-month study conducted by the paper and Southern Methodist University School of Law.  The paper reports information that many of us may have already known presenting these independently and professionally.  One article begins by noting that “Bit by bit, case by case and state by state, American’s celebrated right to trial by jury is being diminished” and that “no state has seen the role of juries more altered during the last decade than Texas.”[5] The author then sets forth the proof of this National trend showing that:

(1)   34 states have limits on the amount of money civil juries can award;

(2)   42 states have restricted the types of cases juries can hear;

(3)   Several states limit the amount of punitive damages that can be awarded and one has banned these;

(4)   Various states enacted bans and immunities on certain types of lawsuits;

(5)   States are substantially narrowing the time limitations for filing lawsuits; and

(6)   Both legislatures and judges are increasingly taking decisions away from juries.

Three other articles within the series reiterate the diminishing significance of juries showing how:

(a)    fine print arbitration clauses are used to limit or eliminate responsibility;[6]

(b)   some courts use cases like Daubert to take away jurors’ fact-finding and evidence weighing duties;[7] and

(c)    statutes can shield companies from responsibility.[8]

One of the more revealing articles reports findings from a survey of 1,000 federal and state trial judges.[9] Aptly, the writer notes how “The judges’ responses reflect a high level of day-to-day confidence in a system whose shortcomings are often measured by a few, highly publicized verdicts….”  The survey further found that:

• 98% of judges said juries do at least “moderately well” in reaching a “just and fair” verdict.
• 96% of judges said they agree with jury verdicts most or all of the time.
• Only 1% of judges give the jury system low marks.

Finally, the research confirms that juries “rarely give big awards”[10] and when they do, they do not want a law they were not told about to render their time, deliberations and verdict meaningless.[11] The findings included the conclusion that “Statistics and studies show that civil juries are becoming less and less willing to hand out money, contrary to widely held opinion.”[12] One judge said that “Runaway juries are a myth” and that “The public perception of what juries do and the reality of what juries really do are in separate universes.”  As shown in the article, the truth is in the numbers.  For example, in Dallas County:

• From 1998 to 1992, the median jury award plunged by about two-thirds to $25,200 and juries issued less than half as many million-dollar verdicts.
• In 1998, juries made 25 awards of less than $1000 and only did that 4 times in 1992.
• Victory for the plaintiff wasn’t worth a dime in 12 cases in 1998.
• In 1998, juries levied punitive damages in 19 trials, the lowest number in 20 years,  and judges eventually reduce or throw out half of such awards.  Since 1992, the median punitive damage award fell 43% to $31,000.
• In more than 40 soft tissue injury cases in the past 3 years, juries awarded the winning plaintiff less than their medical bills or lost wages, and in each such case, defendants were found 100% at fault or admitted fault and a licensed medical provider testified as to the injuries and costs.

Nationally, from 1998 to 1992, the median punitive damage award has fallen more than 20% and the median jury award has plunged by about two-thirds to $35,000.

Though Wisconsin does not maintain the scope of jury verdict data that Texas has, the truth is reflected in the diminishing “loss ratios” of Wisconsin insurers, which are shown in the corresponding graph.  Nationally, as well, insurers are having substantial and increased profits – which are not necessarily related to “investment gain.”[13] State Farm recently declared a “$1 Billion dividend for auto insurance customers,” which in Wisconsin will result in $13,500,000 being returned to insureds.[14] Of course, when there are underwriting gains, decreasing loss ratios and increased profits, this gets credited to being “well-capitalized, strong investment returns and a lack of catastrophic losses.”[15] However, when there is some bad news insurers blame “higher auto claims”[16] and political affiliates point a finger at “the litigation explosion” and “size of the awards.”  Certainly, it is not any wonder why the American Insurance Association would “applaud” Gov. Bush’s  federal tort reform proposals.[17]

[2].   This information may be found on the Internet at http://www.uschamber.org/, which is replete with Tort Reform and civil justice misinformation.

[3].  “Tipping the Scales: Juries on Trial,” The Dallas Morning News, May 7, 2000 and May 8, 2000.  On the web, see http://dallasnews.com/juries/.

[4].  For more in depth reading related to these issues, two excellent articles are: Peck, Robert, et al., “Tort Reform 1999: A Building Without a Foundation,” Florida State Univ. Law Review, Vol. 27:397 (1999); and Galanter, Marc, “An Oil Strike in Hell: Contemporary Legends About the Civil Justice System,” Arizona Law Review, Vol. 40:3 (1998).

[5].  Mark Curriden, “Right to trial by jury fades under court rulings, new laws,” The Dallas Morning News, May 7, 2000.

[6].  Mark Curriden, “Arbitration is weapon against liability: Fine print often removes jury resolution as option for complaints,” The Dallas Morning News, May 7, 2000.

[7].  Mark Curriden, “Power shift: Laws are snatching authority from jurors and transferring it to the hands of judges,” The Dallas Morning News, May 7, 2000.

[8].  Mark Curriden, “Statutes can shield companies: Sometimes merit can be irrelevant,” The Dallas Morning News, May 7, 2000.  Golfers may be able to relate to this article’s reference to a federal law, which would ban any lawsuit claiming a defect in assembly or parts in the small jet that crash and caused Payne Stewart’s death.

[9].  Allen Pusey, “Surveys by Morning News, SMU law school find overwhelming support for citizens’ role in court system” The Dallas Morning News, May 7, 2000.

[10].  Mark Curriden, “Juries’ bad rap: Panels rarely give big awards or buy novel defenses,” The Dallas Morning News, May 8, 2000.

[11].   Mark Curriden, “Jury awards fall under weight of obscure law” The Dallas Morning News, May 7, 2000.  Citing jurors’ anger about a tort reform law enacted by Gov. George W. Bush and the Texas legislature, which made meaningless jurors’ long deliberations and award of $42.5 million in punitive damages by slashing it to $200,000 after the defendant was found to have recklessly caused the plaintiff’s husband’s death.

[12].  See supra note 7.

[13].  “Auto Insurance Companies Are Making Enormous Sums of Money,” Public Citizen, table at http://www.citizen.org/ based on data from the National Association of Insurance Commissioners, “Report on Profitability By Line and By State,” 1996; see also Diamond, Randy, “Auto insurers rebut report of high profits,”  The Record, February 9, 2000; and “Property/Casualty Rating Trends Reflect Capital Strength, Earnings Stability,” A.M. Best Company Special Report, September 7, 1999.

[14].  State Farm Mutual Automobile Insurance Company Press Release, Bloomington, Ill., June 12, 2000.

[15].  Panko, Ron, “P/C Insolvencies Reach Lowest Level in 27 Years,” BestWeek, November 29, 1999.

[16].  See Bowers, Barbara, “Allstate Posts 44% Drop In Quarterly Net Income,” BestWeek, February 14, 2000 (stating “Allstate Corp. posted a 44.1% drop in fourth-quarter net income before special charges, citing lower premium rates and higher auto claims.”).

[17].   Gov. George W. Bush Press Release, “AIA Applauds Bush Federal Tort Reform Proposal,” February 9, 2000.  See http://www.georgewbush.com/news/2000/february/pr020900_tort.asp.

Just before midnight on July 19, 1986, a drunk driver struck and injured a pedestrian, Valerie Ranft.  The driver was convicted of causing injury while intoxicated, and Mrs. Ranft and her husband sued the driver and his insurer as a result of their injuries.  In interrogatories to the defendants, the Ranfts asked whether they had taken surveillance photos or videos.  The defendants refused to answer claiming the information was undiscoverable work product. The trial court and appellate court in Ranft v. Lyons[1] agreed and in denying the Ranfts’ discovery requests, placed Wisconsin in a minority of jurisdictions, which deny pretrial access to surveillance materials.

The Ranft decision, however, was appropriately questioned in Martz v. Trecker[2].  In a concurring opinion, Judge Richard Brown, while acknowledging the Ranft precedent, criticized its outcome and encouraged the Wisconsin Supreme Court to reconsider the conclusions reached by the Ranft panel.  Unfortunately, the facts in Martz may not have been fitting for a reversal of Ranft, and review was denied, effectively prolonging the antiquated concept that litigation is a game and abandoning the essence of modern day discovery rules.

The purpose of this article is to encourage lawyers and the courts to revisit this issue and to permit all litigants[3] the right to pretrial discovery of surveillance material.  All trial lawyers know that surveillance material can be an effective tool at trial, but most also acknowledge that surveillance material has a high potential for abuse and manipulation, especially in this age of digital technology.  Substantial justice can only be achieved through a scrupulous pretrial examination of such material by counsel and their consultants, if necessary.  Although discovery of such material may eliminate its “shock” value, it does not abolish a party’s ability to impeach a litigant so long as discovery is permitted after the party’s deposition.  Moreover, if surveillance material is discoverable and genuine, it may lead to pretrial settlement.

Arguments for refusing discovery

Courts generally suggest two reasons for denying discovery of surveillance: 1) attorney work product ought to be protected,[4] and 2) the element of surprise is an effective means of discovering the truth.[5]

In Careccia, one New York appellate court found that surveillance tapes were analogous to an investigator’s reports and therefore, subject to work product protection.  The court concluded that only upon a showing of “substantial need and hardship” could a plaintiff overcome such protection, and that the authenticity of the materials could be determined at trial through voir dire and cross-examination of the person making the videotape.  In Hikel, a federal district court ruled that surveillance tapes were not subject to pretrial disclosure since such films are effective impeachment tools.  The court speculated that plaintiffs might alter their testimony at trial if they became aware of the existence of films showing their post-accident behavior, thus impeding the truth-finding process.

Arguments for allowing discovery

Courts allowing pretrial discovery of surveillance materials, on the other hand, offer at least one of four general reasons for doing so.[6]

First, the information gathered by surveillance is often the only extant record of a person’s actions on a particular day.  The party filmed does not know when the surveillance was conducted or the activities depicted.  Visual evidence of this type is extraordinary because it preserves a particular set of conditions within a certain context that can likely never be duplicated.[7] Thus, the need for this exclusive record vitiates the qualified protection due a defense attorney’s work product.  The Supreme Court of Florida has held that while protection of work product is a legitimate goal, modern litigation favors broad disclosure of all relevant materials and strongly disfavors “gamesmanship, surprise, or superior trial tactics,” all of which are discouraged by pretrial disclosure of surveillance materials.[8]

The second reason courts use to justify pretrial disclosure of surveillance materials is rooted in an understanding of modern technological sophistication, where there is great potential for abuse of surveillance materials.  As one federal district court put it:

The camera may be an instrument of deception.  It can be misused.  Distances may be minimized or exaggerated.  Lighting, focal lengths, and camera angles all make a difference. Action may be slowed down or speeded up.  The editing and splicing of films may change the chronology of events.  An emergency situation may be made to appear commonplace. That which has occurred once, can be described as an example of an event which recurs frequently. . . .  Thus, that which purports to be a means to reach the truth may be distorted, misleading, and false.[9]

Without the opportunity to examine surveillance materials well before trial, parties might be severely prejudiced or the trial process severely hampered.[10] New York’s highest court called film and videotape “extraordinarily manipulable media,” and stated that because “authentication of surveillance films can be a slow and painstaking process,” pretrial discovery of surveillance materials, upon a showing of need, should be allowed.[11] Without the opportunity to review the surveillance prior to trial, the filmed party is “placed at a significant disadvantage by having to rebut the exhibit without sufficient time to prepare properly.”[12]

Third, the public policy goal of a disinterested search for truth is better served by open discovery.  Because the tactical objective of surprise “does not comport with the spirit” of modern discovery rules, Delaware has allowed pretrial discovery of surveillance materials for nearly three decades.[13] Though surveillance is prepared in anticipation of litigation, it certainly does not reveal any mental impressions, conclusions, opinions, or legal theories of the appellants’ attorney or representative since counsel is not choreographing the party’s actions.[14] Thus, disclosure should be favored since “a trial decision should result from a disinterested search for truth from all the available evidence rather than tactical maneuvers based on the calculated manipulation of evidence and its production.”[15] “The exponents of surprise testimony as the best weapon against a perjurious adversary become fewer and fewer as experience proves the contrary view.”[16]

Finally, courts recognized that allowing discovery of surveillance materials properly permits parties to accurately gauge the relative strength of their cases and thus, may promote settlement and avoid expensive trials.[17] The more information a party has the more likely a settlement will result, but this can only be accomplished with an open discovery policy.[18]

Wisconsin cases

In Ranft, the Court of Appeals acknowledged that the majority rule permits discovery of surveillance materials.  However, the panel sought to conduct its own review of the issue using a three-step analysis.  First, a party seeking discovery must show that the items are within the scope of Rule 804.01(2)(a), Stats.  Second, if the initial showing is successful, the party opposing discovery must demonstrate that the items were “prepared in anticipation of litigation or for trial.”  If so, the items are protected by the work product doctrine.  Third, if the items are work product, the party seeking discovery must demonstrate a “substantial need of the materials in the preparation of the case” and that the party “is unable without undue hardship to obtain the substantial equivalent of the materials by other means.”  Based on this analysis, the Ranft Court said that surveillance materials go to the heart of the attorney work product doctrine and that discovery would only be permitted for compelling reasons or “good cause.”  According to Ranft, because the plaintiff was aware of her physical limitations and knew or should have known what she had done since the accident, there was no “good cause” for discovery.  Thus, the court held that the trial court did not abuse its discretion in denying discovery of the surveillance evidence.

The issue was again addressed in a different context by the Court of Appeals in Martz, another personal injury action.  In Martz, the plaintiff testified at trial that she was unable to place items on her left shoulder using her right arm and hand exclusively.  The defense introduced a film intending to rebut the plaintiff’s testimony.  The Court of Appeals affirmed the admission of the film where plaintiff had been given the opportunity to view the film the night prior to its showing to the jury.  Unlike the plaintiff in Ranft, however, the plaintiff in Martz never requested discovery of surveillance materials.  But of course, such a discovery request may have been fruitless following Ranft.

Judge Brown’s concurring opinion in Martz notes the Ranft decision’s failure to fully examine the logic courts use when allowing pretrial disclosure of surveillance materials. Specifically, Judge Brown recognized that “disclosure permits an accurate assessment of the strengths and weaknesses of a case,” thereby “fostering settlement and freeing the courts and parties of a costly trial.”  It is a legitimate goal of the defense to show “the jury that the plaintiff has been caught lying.”  But, this goal should not be deemed to be more important than open discovery and cost-effective settlement of the case.

With regard to surveillance materials, Wisconsin courts have failed to harmonize the competing public policy goals of the work product doctrine and broad discovery.  Although the Wisconsin Supreme Court has thus far denied review of the issue, the rule of Ranft ought to be challenged.  In light of the overwhelming support for pretrial discovery of surveillance, the courts should be asked to conduct a thoughtful reexamination of the issue.

Other jurisdictions

The vast majority of jurisdictions, which have addressed the issue, have held that surveillance materials should be subject to discovery prior to trial.[19]

In Forbes, for example, a federal district court relied on the need to test the authenticity of surveillance material, the benefit of encouraging settlement, and the ability to avoid unnecessary trial interruptions facilitating stipulations and admissions, in compelling the production of surveillance materials.[20] Similarly, in Wegner, the court balanced the competing interests at stake, and required the defense to disclose surveillance materials within a certain time period or be barred from using these at trial.[21] And in Ward, the court noted that the defense can preserve the impeaching quality of surveillance evidence by delaying production until the subject of the surveillance has been deposed.  Once deposed, there is no rational justification to deny discovery.[22] The court stated:

[A]llowing discovery of surveillance materials after the deposition of the plaintiff, but before trial, best meets the ends of justice and the spirit of the discovery rules to avoid surprise at trial.  Defendant may insure the impeachment value of the surveillance by taking a video deposition prior to disclosure of the surveillance materials.  In that deposition, defendant may carefully examine plaintiff about his injuries and disabilities and even require him to demonstrate alleged limitations of motions on videotape.  Inconsistencies between that deposition and the surveillance materials can be used to impeach the plaintiff at trial.

Conclusion

Unlike most jurisdictions, Wisconsin has failed to strike a balance by permitting the discovery of surveillance materials once there has been an opportunity to depose the subject of the surveillance.  Although this may sacrifice some of the “shock value,” it clearly preserves the impeachment value of the evidence and fosters the goals of modern discovery: the elimination of surprise, fair and efficient trials, and the promotion of settlements.  Denying access to this critical evidence only promotes potential for abuse and gamesmanship, and discourages out-of-court settlement of claims.

The time has come for the courts to reexamine Ranft and strike a balance between the competing goals of discovery and the attorney work product doctrine.  The right to discover surveillance materials should be fully recognized upon the closing of discovery.  Trial lawyers should insist on the disclosure of surveillance materials, and trial courts should exercise their discretion in favor of full disclosure.

Frank T. Pasternak of Murphy, Gillick, Wicht & Prachthauser is Chair of WATL’s New Lawyers Section.  He received his B.A. in 1990 from St. Norbert College and J.D., cum laude, in 1994 from The John Marshall Law School where he was on its Law Review and National Products Liability Moot Court team.  From 1990 to 1995, he was employed at Corboy & Demetrio in Chicago and since 1995, he has been an associate at Murphy, Gillick, Wicht & Prachthauser.  His practice is limited to plaintiffs’ personal injury.

[2] 193 Wis. 2d 588, 535 N.W.2d 57 (Ct. App. 1995)

[3].  Not all litigants seeking surveillance materials are plaintiffs.  Based on Ranft, our firm has successfully defended an insurer’s attempted discovery of surveillance films taken by plaintiff’s worker’s compensation insurer.

[4].  See, e.g., Careccia v. Enstrom, 578 N.Y.S.2d 678 (App. Div. 1992); but see DiMichel v. South Buffalo R.R. Co., 590 N.Y.S.2d 1 (1992) and Boulware v. Triborough Bridge and Tunnel Authority, 613 N.Y.S.2d 580, 581 (1994) (balancing the competing interests of defendants and plaintiffs by finding that the qualified privilege of this work product can be overcome due to the unique nature of such evidence and ease of manipulation).

[5].  Hikel v. Abousy, 41 F.R.D. 152 (D.C. Md. 1966).

[6].  See, e.g., Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513 (5th Cir. 1993); Forbes v. Hawaiian Tug & Barge Corp., 125 F.R.D. 505 (D. Haw. 1989); Snead v. American Export-Isbrandtsen Lines, Inc., 59 F.R.D 148 (E.D. Pa. 1973); Hoey v. Hawkins, 332 A.2d 403 (Del. 1975); and Olszewski v. Howell, 253 A.2d 77 (Del. 1969); and Dodson v Persell, 390 So.2d 704 (Fla. 1980).

[7].  DiMichel, 590 N.Y.S.2d at 6.

[8].  Dodson, 390 So. 2d at 707.

[9].  Snead, 59 F.R.D. at 150.

[10].  Indeed, in one case litigated by our firm, it turned out that the defendant’s investigator had taken films of someone other than the plaintiff.  Had that case been pending in Wisconsin, rather than federal court, we would not have confirmed prior to trial that the defendant’s alleged surveillance was a sham.

[11].  DiMichel, 590 N.Y.S.2d at 6; see also Simon v. Krueger Intn’l, Inc., 646 N.Y.S.2d 237, 238-39 (Sup. Ct. 1996).

[12].  Lascano v. Vowell, 940 P.2d 977, 981 (Colo. Ct. App. 1996).

[13].  Hoey, 332 A.2d at 406.

[14].  Pioneer Lumber, Inc. v. Bartels, 673 N.E.2d 12, 16 (Ind. Ct. App. 1996).

[15].  Olszewski, 253 A.2d at 78.

[16].  Hoey, 332 A.2d at 406.

[17].  DiMichel, 590 N.Y.S.2d at 4; Forbes, 125 F.R.D. at 508; and Olszewski, 253 A.2d at 78.

[18]. Pioneer Lumber, 673 N.E.2d at 14.

[19].  Supra note 13; see also Wolford v. Joellen Smith Psychiatric Hosp., 693 So.2d 1164 (La. 1997); Ward v. CSX Transp., Inc., 161 F.R.D. 38 (E.D.N.C. 1995); Wegner v. Viessman, Inc., 153 F.R.D. 154 (N.D. Iowa 1994); Pettus v. Hurst, 882 S.W.2d 783 (Tenn. Ct. App. 1994); State v. Koehr, 853 S.W.2d 925 (Mo. 1993); Boyle v. CSX Transp., Inc., 142 F.R.D. 435 (S.D.W. Va. 1992); Daniels v. Nat’l R.R. Passenger Corp., 110 F.R.D. 160 (S.D.N.Y. 1986); and Wanda E. Wakefield, Annotation, Photographs of Civil Litigant Realized by Opponent’s Surveillance as Subject to Pretrial Discovery, 19 A.L.R.4th 1236 (1983).

[20].  Forbes, 125 F.R.D. at 508.

[21].  Wegner, 153 F.R.D. at 157.

[22].  Ward, 161 F.R.D. at 40.

Recently, the defense bar has employed a new tactic, which if successful, allows defendant-tortfeasors to obtain a fortuitous windfall at the expense of an injured person.[1] The tactic, a clear attempt to circumvent both the collateral source rule and law of damages, is generally viable only when the injured person has health insurance.  The purpose of this article is to bring this tactic to the attention of the bar and judiciary and to demonstrate why such claims should be rejected.

Essentially, tortfeasors argue that they should obtain the benefit of all discounts an injured person’s health insurer obtains from healthcare providers.  The insurer may be a private health insurance plan, such as an ERISA, PPO, or HMO plan or public insurance plan, such as Medicare or Medicaid.[2] Whoever the insurer is, the tortfeasor claims that the plaintiff’s recovery must be limited to the amount of medical expenses “actually paid” by the health insurer.

In many situations, health insurers require that healthcare providers write off or discount a certain portion of their bill.  Tortfeasors claim that this discount must benefit them, rather than the insured-plaintiff.  In doing so, they claim that since the plaintiff will not have to pay the discounted portion of the bill, it is unfair to hold them responsible for the whole bill – regardless of whether the whole bill is a reasonable amount for the treatment incurred.

This tactic disregards Wisconsin law.  Such a claim ignores the collateral source rule and the rationale for the rule, which has its roots in the policy of Wisconsin tort law.  In addition, such a claim overlooks the law relating to an injured person’s right to recover medical expenses.

The Collateral Source Rule

The collateral source rule holds that public or private benefits provided to an injured party, which are collateral to the defendant-tortfeasor, cannot benefit that tortfeasor.  The rule has a long-standing history in Wisconsin and applies to:

(1)         Underinsured motorist benefits, Voge v. Anderson[3];

(2)         Benefits received under automobile personal injury protection and no-fault policies for lost wages and medical expenses, Vonch v. American Standard Ins. Co.[4], and American Standard Ins. Co. of Wisconsin v. Cleveland[5];

(3)         Medical expenses paid under group health and accident insurance, Foss v. Town of Kronenwetter[6];

(4)         Salary continuation by an employer, Campbell v. Sutliff[7];

(5)         Voluntary payments made for medical treatment, McLaughlin v. Chicago, Milwaukee, St. Paul & Pacific Railroad Co.[8];

(6)         Medicare payments for medical expenses, Merz v. Old Republic Insurance Co.[9]; and

(7)         Gratuitous medical and nursing services, Thoreson v. Milwaukee & Suburban Transport Corp.[10].

In each situation, the plaintiff received a benefit collateral to the defendant and did not “actually pay” the damages at issue.  In Campbell, the employee “actually” lost no wages, due to the continuation of salary, but it was permissible to recover the value of the time missed from work.  With medical insurance, the plaintiff never “actually pays” the expense of treatment, but is permitted to recover the value of such treatment.  As to the gratuitous medical and nursing services, plaintiffs may also recover the value of these services.

Despite this law, tortfeasors endeavor to obfuscate the collateral source rule in the managed care situation.  Defendants typically rely on the appellate court’s decision in Oliver v. Heritage Mut. Ins. Co.[11] as a basis for disallowing the discounted portions of the medical bills.

The issue in Oliver was whether the plaintiff’s voluntary bankruptcy precluded his recovery of medical and hospital expenses discharged in the bankruptcy.  Though the facts are patently dissimilar from the situation at issue here, certain language in Oliver gives defendants something to argue.  Defendants claim that Oliver addresses improper “windfalls” to plaintiffs.  They assert that because the Oliver court found the collateral source rule inapplicable, it should also be inapplicable to discounted medical bills.  The defense then tries to analogize a “write-off” to the bankruptcy discharge pointing to Oliver’s use of the word “incurred” and claiming that because portions of a provider’s bill were “written-off,” these were never “incurred.”

These arguments, however, are hollow.  A review of the cases cited above reveals that the plaintiffs generally did not “actually incur” the damages at issue – at least under the defense definition of “incur” (which appears to be “pay”).  Further, several of the plaintiffs in these cases, due to the lack of an assignment or subrogation, received a “windfall” or “double recovery.”  Thus, it is apparent that other reasons must justify the outcome in Oliver.  The reasoning is in the following statement:

We conclude that the collateral source rule is intended for instances where a “benefit” is bestowed by a “third party” and this third party benefit is what creates the windfall.  The collateral source rule is not intended for situations where the plaintiff creates the windfall by his own act.  So, although the issue is one of first impression, we have no hesitancy in deciding against applying the public policy behind our collateral source rule to this case.  Moreover, Wisconsin law mandates that medical bills be “incurred” by a plaintiff in order to be the subject of compensation.  See Wis J I–Civil 1750A.  We agree with Heritage that since Oliver was relieved of his obligation to pay the bills, there was no debt which was “incurred” at the time of trial. We further agree with Heritage that were we to hold for Oliver on this issue, we might encourage some plaintiffs to declare bankruptcy so that payment intended for medical care providers could be transferred to the plaintiff instead.  Such a windfall is unlike those in mine-run collateral source cases because the third party either gratuitously or by contract is providing the benefit.  Here, the medical care providers are not providing a windfall at all and certainly not by reason of any gratuity or contract.  It would be poor public policy to encourage bankruptcies for this purpose.  We do not insinuate that Oliver filed bankruptcy for this purpose.  We simply conclude that holding to the contrary might encourage the filing of bankruptcies in the future.[12]

Accordingly, Oliver is concerned with the public policies involved and balancing the competing interests.  The court did not want to reward a plaintiff with a windfall caused by his own conduct in discharging debts in full through bankruptcy.  The court distinguished this situation from that where a “windfall” comes to the plaintiff due to a third-party benefit.  In that situation the collateral source rule applies.  Thus, in the managed care situation, since the plaintiff’s health insurer bestows the benefit of the negotiated discount and creates the windfall, the collateral source rule must apply.

The Rationale for the Rule and Policy of Wisconsin Tort Law

In 1994, the Supreme Court of Wisconsin reaffirmed the collateral source rule, explaining:

[T]he collateral source rule requires that the tortfeasor be held responsible for his conduct by requiring the tortfeasor to compensate the injured party the full amount of damages.  We recognize that the results in this case allow the injured party a double recovery. However, a contrary conclusion would result in giving the tortfeasor a windfall: the tortfeasor would not have to pay the full amount of damages he would owe even after taking into account the amount of contributory negligence. Since Voge’s recovery from American Family stemmed from his own actions of obtaining underinsurance and paying the premium for it, the better result is to allow Voge to recover that windfall, not Illinois Farmers and Anderson. Any windfall in benefits should inure to the injured party, not to the tortfeasor.

Voge v. Anderson[13]

Back in 1927, the Supreme Court of Wisconsin stated:

It is equally clear that the defendant is not entitled to have the damages reduced because the plaintiff had purchased and paid for the right to have indemnity in case he sustained accidental injuries.  The sums paid for such insurance are in the nature of an investment, which, like other investments made by the plaintiff, ought not to inure to the benefit of the defendant.  The only parties interested in such a contract of insurance are the plaintiff and the insurer.

Campbell v. Sutliff[14] citing Gatzweiler v. Milwaukee Electric Railway & Light Co[15].

.

This reasoning and long-standing policy lead the appellate court to choose Wisconsin’s collateral source rule over Minnesota law in American Standard Ins. Co. of Wisconsin v. Cleveland[16], where the court stated:

Wisconsin’s collateral source rule is intended to deter negligent conduct by placing the full cost of the wrongful conduct on the tortfeasor.

*  *  *

The primary factor favoring the choice of Wisconsin’s law relates to the advancement of this state’s governmental interests.  The policy of Wisconsin’s tort law is to provide full compensation to persons who are injured by negligent conduct and to deter such conduct by imposing the full monetary consequences on the tortfeasor.  The collateral source rule does not affect the injured person’s right to full compensation.  The rule does advance the deterrent purpose of Wisconsin tort law, however, because the tortfeasor is not gratuituously benefited by payments made to the plaintiff by collateral sources.

Based on the collateral source rule, tortfeasors should not obtain a chance windfall that results only because the injured person has health insurance.  As a matter of public policy, tortfeasors should not get windfalls and should certainly not get windfalls that stem solely from benefits that belong to the injured party.  The injured party purchased or otherwise paid for these benefits and if they had not, the tortfeasor would be required to pay the full cost of their negligent conduct.  Therefore, there is no justification not requiring tortfeasors to pay the full cost of their negligent conduct.  Allowing such tortfeasors to do so, merely because the victim has insurance, contravenes the collateral source rule and the policy of Wisconsin tort law.

The Right to Recover for the Value of Medical Treatment

The defense argument in this situation is not only repugnant to the theories behind the collateral source rule,[17] but it ignores Wisconsin law relating to an individual’s right to recover the reasonable value of the medical treatment rendered as a result of the defendant’s tortious conduct.  The argument presumes, per se, that the amount “actually paid” is the only amount that is reasonable and it ignores the fact that the insurer paid a discounted amount.

In Wisconsin, the general rule is that plaintiffs injured by tortious conduct are entitled to recover the reasonable value of the medical services required by the injury.[18]

In Thoreson[19], the Court clarified this stating:

The general rule in Wisconsin has been that a plaintiff who has been injured by the tortious conduct of another is entitled to recover the reasonable value of his medical costs reasonably required by the injury.  In most cases this is the actual expense, but in some cases it is not.  But the test is the reasonable value, not the actual charge, and therefore there need be no actual charge.

Previously, in McLaughlin[20], the Court stated:

The general rule is that a plaintiff who has been injured by the tortious conduct of the defendant is entitled to recover the reasonable value of medical and nursing services reasonably required by the injury.  This is a recovery for their value and not for the expenditures actually made or obligations incurred.

In making their argument, tortfeasors would have the litmus test of reasonable value be “the actual amount paid” and “the expenditures actually made” by the plaintiff’s insurers.  However, as can be see above, this is clearly not the law.  “Reasonable value” is the only legal standard for determining the amount of recoverable medical costs and the standard proposed by the defense simply contradicts this.

Conclusion

Wisconsin’s appellate courts have yet to specifically address this attempt by tortfeasors to perforate the collateral source rule, the policy of Wisconsin tort law and law of damages.  Further, very few courts outside of Wisconsin have examined the issue.[21] Until the issue is resolved, the courts and plaintiffs’ lawyers can be certain that the defense bar will continue to assert this new tactic.  Based on the precedent, the courts should see through this effort.  Without doing so, tortfeasors unfairly secure a windfall at the expense of an injured person.

Frank T. Pasternak of Murphy, Gillick, Wicht & Prachthauser received his B.A. in 1990 from St. Norbert College and J.D., cum laude, in 1994 from The John Marshall Law School where he was on its Law Review and National Products Liability Moot Court team.  From 1990 to 1995, he was employed at Corboy & Demetrio in Chicago and since 1995, he has been an associate at Murphy, Gillick, Wicht & Prachthauser.  Frank is a member of numerous bar associations and is active in WATL’s Membership Committee and New Lawyers Section.  His practice is limited to plaintiffs’ personal injury.

[2].  With regard to Medicare, see Dentice, M. Angela, “The Defense Use of Payments Under the Medicare Act: Another effort to undercompensate injured people,” 20:4 The Verdict (Fall 1997).

[3] 181 Wis.2d 726, 732-33, 512 N.W.2d 749 (1994)

[4] 151 Wis.2d 138, 144-45, 442 N.W.2d 598 (Ct.App. 1989)

[5] 124 Wis.2d 258, 369 N.W.2d 168 (Ct.App. 1985)

[6] 87 Wis.2d 91, 109, 273 N.W.2d 801 (Ct.App. 1978)

[7] 193 Wis. 370, 214 N.W. 374 (1927)

[8] 31 Wis.2d 378, 395-96, 143 N.W.2d 32 (1966)

[9] 53 Wis.2d 47, 53-54, 191 N.W.2d 876 (1971)

[10] 56 Wis.2d 231, 243, 201 N.W.2d 745 (1972)

[11] 179 Wis.2d 1, 505 N.W.2d 452 (Ct.App. 1993)

[12] 179 Wis.2d at 23-24

[13] 181 Wis.2d 726, 732-33, 512 N.W.2d 749 (1994)

[14] 193 Wis. 370, 374-75, 214 N.W. 374 (1927)

[15] 136 Wis. 34, 116 N.W. 633 (1908)

[16] 124 Wis.2d 258, 264-66, 369 N.W.2d 168 (Ct.App. 1985) (citations omitted)

[17].  If there is subrogation, tortfeasors may attempt to further confuse the issues by arguing that the collateral source rule is “inapplicable” to both the amounts paid and the amount discounted.  In doing this, tortfeasors reference cases, which state that the collateral source rule does not apply where subrogation is present.  Lambert v. Wrensch, 135 Wis.2d 105, 121, 399 N.W.2d 369 (1987); and Gurney v. Heritage Mut. Ins. Co., 183 Wis.2d 270, 280, 515 N.W.2d 526 (Ct.App. 1994).  However, subrogation is derivative of the plaintiff’s right to recover from the tortfeasor.  American Standard Ins. Co. of Wisconsin v. Cleveland, 124 Wis.2d 258, 263, 369 N.W.2d 168 (Ct.App. 1985).  Where subrogation is present, it is only applicable to the amount of payments made.  See Jindra v. Diederich Flooring, 181 Wis.2d 579, 511 N.W.2d 855 (Wis. 1994); Rixmann v. Somerset Public Schools, 83 Wis.2d 571, 266 N.W.2d 326 (1978); and Heifetz v. Johnson, 61 Wis.2d 111, 211 N.W.2d 834 (1973).  Subrogation does not apply to the plaintiff’s right to recover the reasonable value of the necessary medical services and the collateral source rule must still apply to the amounts discounted.

[18] Utecht v. Steinagel, 54 Wis.2d 507, 515, 196 N.W.2d 674 (1972); Sulkowski v. Schaefer, 31 Wis.2d 600, 608, 143 N.W.2d 512 (1966).

[19] 56 Wis.2d 231, 243, 201 N.W.2d 745 (1972)

[20] 31 Wis. 2d 378, 395-96, 143 N.W.2d 32 (1966)

[21].  Defendants often cite a decision from the Kansas Court of Appeals, which has no analysis of the collateral source rule, the state’s tort law policies or its law of damages.  Rather, the decision tersely concludes that within the Medicare context “Nothing in the reasoning underlying the collateral source rule supports [the plaintiff’s] position on this issue.”  Bates v. Hogg, 921 P.2d 249 (Kan. Ct. App. 1996).  In Brown v. Van Noy, 879 S.W.2d 667, 677 (Mo. Ct. App. 1994), the court rejected the defendant’s claims as to Medicare payments and write-offs, concluding that in the absence of evidence challenging the reasonableness of the billed medical expenses, the amounts actually paid or written-off were irrelevant.  In Montgomery Ward & Co. v. Anderson, 976 S.W.2d 382, 383-85 (Ark. 1998), the Arkansas Supreme Court affirmed the denial of a defense motion in limine to prevent the plaintiff from admitting into evidence her total medical bill.  The defendant asked that the plaintiff’s evidence be limited to the actual amount for which she would be responsible to pay because the plaintiff’s attorney had negotiated a discount of 50%. The Court reaffirmed its commitment to the collateral source rule finding that any benefit obtained due to a collateral source payment should go to the injured party rather than the tortfeasor.  The Court cited as a similar situation those cases in which courts have held that an injured party may recover for medical services gratuitously rendered and that such services fall within the collateral source rule.  The court then stated that it “adopt[s] the rule that gratuitous or discounted medical services are a collateral source not to be considered in assessing the damages due a personal-injury plaintiff.”  The court found that such a rule “is consistent with our oft-stated policy of allowing the innocent plaintiff, instead of the tortfeasor defendant, to receive any windfall associated with the cause of action.”

ATLA Motor Vehicle Collision, Highway & Premises Liability Newsletter, Fall 1998

Thorough discovery leads to successful litigation, but often such discovery is dependent upon networking with other attorneys and sharing of information.  I recently second-chaired a case that was tried by James J. Murphy and resulted in a $4 million verdict against Wal-Mart.  The case involved an injury caused by falling merchandise.  Our networking with other attorneys and their sharing of information resulted in the discovery of critical evidence, exposure of Wal-Mart’s discovery misconduct, substantial discovery sanctions, and eventually the verdict.

The following is provided for lawyers litigating a case against Wal-Mart.  It is a basic checklist of information that should be obtained during discovery.

1)      All pages of the “Report of Customer Injury,” including the folder in which it is kept and accompanying photographs;

2)      The Wal-Mart “Safety Handbook;”

3)      The store’s “Bureau of Labor Statistics Log and Summary of Occupational Injuries and Illnesses” from within a given timeframe;

4)      Any “Safety Hotline” that addresses your issues;

5)      Each “Safety 1^st” survey from within a given timeframe;

6)      Wal-Mart Television’s “Master Archive List,” which is a videotape index;

7)      Identify members of and documents generated by the “Safety Team,” “Safety Loss Prevention” committee, “Risk Control and Safety” committee, and “Accident Review Board;”

8)      Each “Monthly Risk Control Survey” from within a given timeframe;

9)      The Wal-Mart “Associate Handbook;”

10)  The Wal-Mart “Store Manual;”

11)  The Wal-Mart “Safety Manual;”

12)  Access to module lessons from the Wal-Mart “CBL” also known as its “Computer Based Learning,” which trains associates;

13)  The store’s floor plans;

14)  Similar incident data obtainable through Wal-Mart’s “ISD,” which is its “Information Systems Division” in Bentonville, Arkansas. Data comes from “CMI,” “Claims Management, Incorporated,” a wholly-owned subsidiary of Wal-Mart located in Rogers, Arkansas that has handled Wal-Mart liability and worker’s compensation claims since 1993.

The following would apply to those cases involving falling merchandise:

15)  Wal-Mart documents referring to “zoning” and “zoners;”

16)  Names of all “zoners” on duty at the time of the incident;

17)  The lack of height limitations, guards, or dividers for merchandise on risers;

18)   Wal-Mart documents referring to “leaners;” and

19)   Each Wal-Mart “Accident Reduction Plan.”

As referred to above, attorneys should be prepared for Wal-Mart’s discovery misconduct.  The court record in our case reveals incidents involving the destruction of evidence, violation of court orders, delayed disclosure of an alleged eyewitness (not listed in reports of the incident and who was sole witness claiming our client was negligent), failing to answer discovery relating to prior incidents, failing to answer discovery relating to alleged surveillance (which was recanted at trial), and late disclosure of expert witnesses.