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In Drew v. Lee, 2011 UT 15 (March 15, 2011), the Utah Supreme Court interpreted Rule 26 of the Utah Rules of Civil Procedure with respect to what it means to be "retained or specially employed to provide expert testimony." Utah R. Civ. P. 26(a)(3)(B). The issue was whether the trial court properly excluded plaintiff's treating physician who offered opinions on causation of injury when the physician did not provide a written report with those opinions as required by Rule 26. The Supreme Court first distinguished Pete v. Youngblood, which requires a party to designate an expert witness prior to trial, on the grounds that the issue before it was not a question of designation but rather on whether an expert report was required. Because plaintiff had properly designated his treating physician as an expert witness, the Court held that Pete did not answer the question. See id. at ?15. Interpreting the language of Rule 26, the Court determined that Rule 26 contemplates two classes of experts: those who are retained or employed specifically for litigation and those who are not. See id. at ?18. In determining whether an expert was retained or employed for purposes of litigation, the Court discussed that other jurisdictions follow either the substance-based approach or the status-based approach. The majority approach uses a substance-based approach which examines the substance of the expert's testimony; however, the Court noted this approach often produces varying results as it necessarily involves a case-by-case analysis. See id. at ?22. Rejecting the substance-based approach, the Court adopted the status-based approach because of its ease of application. As applied to treating physicians, this approach creates two categories: "(1) physicians the party visited for purposes of medical treatment ("treating physicians") and (2) other physicians who are 'specially retained or employed' for purposes of litigation." Id. at ?23. Those physicians a party seeks out for medical treatment are not retained or employed for purposes of litigation, and thus, they are not required to produce an expert report.
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Taking and Defending Effective Depositions under Rule 30(b)(6) by Tanya N. LewisEvery attorney knows what it means to take the deposition of anindividual, whether the deponent is a party to civil litigation or a non-partywitness with knowledge pertaining to an issue in the case. But what about an organization?Information about how a company or organization conducts its operations, hiresand trains its employees, handles its accounting and finances, or performssafety inspection may be crucial to proving either liability or damages,depending on the case. How can a party (whether a plaintiff or a defendant)obtain valuable, relevant testimony on these or other subjects from what mayseem like a faceless entity?The 30(b)(6) Deposition, GenerallyThe Federal and Utah Rules of Civil Procedure both anticipated theneed for verbal testimony to be taken from a corporation, limited liabilitycompany, or other organizational entity, and set forth special guidelines underFederal Rule 30(b)(6) and Utah Rule 30(b)(6), respectively. Both the Federaland Utah rules permit (and require) a party seeking a deposition from an entityto direct a deposition notice to the entity that sets forth the subject mattersof the desired testimony from whom testimony is sought. The Utah rule states:
A party may in the notice and in a subpoena name as the deponent a public orprivate corporation, a partnership, an association, or a governmental agencyand describe with reasonable particularity the matters on which examination isrequested. In that event, the organization so named shall designate one or moreofficers, directors, managing agents, or other persons who consent to testifyon its behalf and may set forth, for each person designated, the matters onwhich the person will testify. A subpoena shall advise a nonparty organizationof its duty to make such a designation. The persons so designated shall testifyas to matters known or reasonably available to the organization. ThisSubdivision (b)(6) does not preclude taking a deposition by any other procedureauthorized in these rules.
U.R.C.P. 30(b)(6). The Federal rule is similar in nature to the Utah rule andreads:
In its notice or subpoena, a party may name as the deponent a public or privatecorporation, a partnership, an association, a governmental agency, or otherentity and must describe with reasonable particularity the matters forexamination. The named organization must then designate one or more officers,directors, or managing agents, or designate other persons who consent totestify on its behalf; and it may set out the matters on which each persondesignated will testify. A subpoena must advise a nonparty organization of itsduty to make this designation. The persons designated must testify aboutinformation known or reasonably available to the organization. This paragraph(6) does not preclude a deposition by any other procedure allowed by theserules.
F.R.C.P. 30(b)(6). Both rules require the deposing party to set forth in thenotice, with reasonable particularity, the categories of testimony desired fromthe corporation or other entity.
History of and Policy Reasons for the 30(b)(6) DepositionThe section providing for 30(b)(6) depositions was added to theFederal rules in the 1970 amendments. The advisory committee noted that the30(b)(6) deposition would improve the deposition process by reducingdifficulties as to whether an employee was a “managing agent.” It also wasintended to reduce the instances of “passing the buck” from one employee toanother by having the corporation designate which witnesses would testify.
The advisory committee notes also indicate that the rule was designed tosupplement the existing practice, where the examining party designates thecorporate official to be deposed. It provides for the examining party to takeadditional fact witness depositions (other than the deposition taken pursuantto Rule 30(b)(6)) if he or she believes that other individuals who haveknowledge but who have not been deposed under 30(b)(6) should testify. For anin-depth discussion of this subject, as well as an analysis of motion practiceregarding protective orders for a 30(b)(6) deposition see Stone v. MortonInt’l, Inc., 170 F.R.D. 498 (D. Utah 1997).
The Subject of 30(b)(6) Depositions Has not been Litigated Significantly inUtah State Courts. However, in Harris v. IES Associates, Inc., 69 P.3d 297 (Utah Ct.App. 2003), the Utah Court of Appeals did issue an opinion regarding, amongother things, the scope of questioning allowed during a 30(b)(6) deposition.Prior to trial, Harris sought to depose IES’s corporate representative, andsent three notices indicating that he intended to depose the representative inregard to, inter alia, document authenticity and IES records maintained orprepared during the course of its regularly conducted business activities.During the deposition, IES’s counsel objected to questions about therepresentative’s status at IES and involvement in the production of documentsrequested during the course of written discovery. IES’s counsel maintained thatthe questions were outside the scope of the 30(b)(6) notices. After thirtyminutes into the deposition, counsel for IES made an oral motion for protectiveorder and instructed the representative not to answer questions about hisstatus and involvement in document production. Ultimately, following a hearing,the trial court found that the questions were within the scope of the notices,and that although IES’s counsel could object on the record to the questions, itwas improper for counsel to instruct the deponent not to answer. The court alsoimposed sanctions under rule 37(a)(4) of the Utah Rules of Civil Procedure,ruling that the deposition was improperly terminated. On appeal, the Utah Courtof Appeals upheld the trial court’s ruling and sanctions, pointing out that IESfailed to discuss the scope of the three deposition notices and to identify orexplain why specific questions exceeded the scope of the notices.
The Harris case illustrates, then, the importance of crafting adequate 30(b)(6)notices that comply with the rule. Note that the rule does not require noticesto be drafted with specificity, only that they describe the matters on whichtestimony is sought with reasonable particularity. Therefore, in noticing a30(b)(6) deposition, general background-type questions pertaining to thelitigation itself such as those described in the Harris case will probably beallowed, even if there is no category set forth on the deposition notice.However, it is not a bad idea to include a separate category just forlitigation of the instant matter. More importantly, Harris should serve as awarning to those defending 30(b)(6) depositions that a Utah court is likely togive a substantial amount of latitude to deposition takers, and thatinstructing a deponent not to answer questions on the grounds that thequestions are outside the scope of the notice is something that should be donesparingly and at great peril, and only when the matters are obviously outsidethe scope of the notice.
30(b)(6) Cases in the Federal CourtsAt both the state and Federal level, the 30(b)(6) deponent is notgiving his personal opinions; rather, the deponent presents the corporation’sposition on the topic. See generally Sprint Commc’ns L.P. v. Theglobe.com, 236F.R.D. 524 (D. Kansas 2006). The Sprint court noted that in a 30(b)(6)deposition, there is no distinction between the corporate representative andthe corporation. It further held that companies have a duty to make aconscientious, good-faith effort to designate knowledgeable persons to bedeposed on behalf of the corporation and to prepare them to fully andnon-evasively answer questions about the designated subject matter. It alsoacknowledged that the requirements on a corporation that must prepare adeponent to be deposed on the corporation’s behalf may be onerous. However, itnoted that the burden upon such an entity is justified, since a corporation canonly act through its employees. Therefore, the requirements negate anypossibility that a deposing party will be directed from one corporaterepresentative to another, “vainly searching for a deponent who is able toprovide a response which would be binding upon that corporation.” Id. at 528.The court also suggested that a party responding to a request for a depositionof a corporate representative to testify on behalf of a corporation “preparedeponents by having them review prior fact witness deposition testimony as wellas documents and deposition exhibits. Any other interpretation of the Rulewould allow the responding corporation to ‘sandbag’ the deposition process.”Id. (internal quotation and footnotes omitted).
The Sprint court also stated in order for the 30(b)(6) to function effectively,the requesting party state, with “painstaking specificity,” the particularsubject areas intended to be questioned, and that are relevant to the issues indispute. It is important to note that this interpretation goes significantlyfarther than the actual language of the rule, which requires only “reasonableparticularity.”
Practical Tips for 30(b)(6) Deposition NoticesOne of the most common mistakes is drafting a deposition noticefor an entity, entitled a “Notice of 30(b)(6) Deposition,” that is drafted justlike any other deposition notice, without any type of description of subjectsor matters on which testimony is sought. In many instances, I can usuallydetermine what type of testimony the other side wants. However, to protect myclient and to prevent misunderstandings at the time of deposition, I willusually draft and send a letter to counsel citing the rule and asking them tosend an amended notice stating the categories of testimony sought.
Another problem brought to our attention recently was the opposite issue,where, for a fairly minor case, counsel prepared a 30(b)(6) notice to acorporate defendant with over 100 separate categories of testimony sought. Inthis instance, recommended practices would probably include attempting to workout a stipulated agreement between counsel on the areas of testimony, and, ifthat was not successful, seeking a protective order from the court and/or acourt ruling on the subjects of testimony to be covered in the deposition.
In matters where multiple people are expected to sit for a 30(b)(6) deposition,serving the notice and coordinating schedules with the deponents far in advanceof any case deadlines or discovery cutoffs is usually well-advised, especiallywhen the party seeking testimony needs the people to be deposed in a particularorder. For example, in an employment discrimination case, you may wish to takethe testimony of the person most knowledgeable for hiring within the companybefore you were to take the testimony of the person most knowledgeable for theindividual’s performance during their employment. Scheduling matters can impedethe 30(b)(6) process, especially if persons in an organization are scatteredacross multiple states, and planning ahead can save a great deal of troublelater in the case.
Rule 30(b)(6) is probably one of the least-understood (and least-complied with)discovery rules. A thorough understanding of 30(b)(6), as well as what it canand cannot do, can greatly improve an attorney’s representation of corporationsand other organizational entities in all types of litigation.
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In Archuleta v. Halverson, 2010 UT 36, the Utah Supreme Court, in a 3-2 decision, reversed and held that Utah now follows the majority of jurisdictions and recognizes a cause of action for negligent credentialing. The primary basis for recognizing this new cause of action was Justice Durham's determination that the immunity contemplated by the peer review statute only operated between the doctor whose credentials are under review, the suppliers of information, and the decision makers. Justice Durham determined that the peer review statute did not contemplate immunity between a patient and a hospital. The Court concluded that "the [peer review] statute was never intended to shield hospitals from potential liability or to provide hospitals protection from medical malpractice claims."
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Medicare, Medicaid, SCHIP Extension Act: An Introduction by Tanya LewisOriginally published in COMMUNIQUE, the official journal of the Clark County Bar Association (CCBA). April 2010, Vol. 31, No. 4. In 2007, Congress passed the Medicare, Medicaid, and SCHIP Extension Act, known by its acronym, MMSEA. The purpose of the MMSEA is to protect Medicare as a secondary payer in personal injury matters where the plaintiff is a Medicare beneficiary, and ultimately, to increase the recovery to Medicare of amounts paid for medical treatment provided to recipients if another entity or party can be held responsible. This article provides some basics about the Medicare program, the reasons for implementation of MMSEA, its requirements, and ways that litigation attorneys can assist their clients in complying with the new requirements, which go into effect on January 1, 2011. Medicare basics Medicare was instituted in 1965 as a way to provide medical care to those receiving social security benefits, particularly to those over the age of 65. Since then, the program has been expanded to include other groups. Currently, those eligible for Medicare are people over age 65, people with endstage renal disease, and persons who have received Social Security Disability for more than 24 months, including those who have been diagnosed with ALS (Lou Gehrig's disease). As of 2009, Medicare provided health insurance coverage to 45 million people, 38 million of whom were over age 65, and another 7 million who qualified for Medicare because they suffer from a permanent disability. Kaiser Family Foundation, January 2009. As the U.S. population continues to age, it is anticipated that Medicare expenditures, as a percentage of the federal budget, will rise. In 2009, Medicare expenditures comprised 13 percent of the national budget, and 19 percent of the nation's annual health expenditures. Medicare spending is expected to nearly double in the next decade. In 2009, Medicare expenditures totaled $477 billion. However, in 2018, the projected expenditures are $871 billion. The projected increases can be attributed not only to an anticipated growth in enrollment, but also to the expectation that, despite anticipated reforms, health care costs will continue to rise. Kaiser Family Foundation, January 2009. Why MMSEA In 2009, the Social Security and Medicare Trustees Reports showed that the combined unfunded liability of those two programs had reached $107 trillion in 2009 dollars. "Unfunded liability" means the difference between the benefits that have been promised to current and future recipients and what will be collected in dedicated taxes and Medicare premiums. National Center for Policy Analysis (NCPA), June 2009. The NCPA went on to point out that, "[i]f no other reform is enacted, this funding gap can only be closed in future years by substantial tax increases, large benefits, or both." It is clear that without some type of additional funding, the Medicare program as it currently exists cannot continue. MMSEA positions Medicare in a manner to recoup not only costs for treatment paid to recipients when another party can be held responsible, but also to recoup fees and penalties from responsible parties who do not report information about claims as required by the law, or who fail to reimburse a Medicare lien established in a personal injury case, as discussed in further detail below. Complying with MMSEA Who is required to report? Basically, any entity that pays injury claims on a regular basis has responsibility to report information about claimants who are Medicare beneficiaries. These entities include liability insurers, corporations who are self-insured, group health plans, and workers compensation carriers and payees. These entities, known as responsible reporting entities (RREs) under the new legislation, are required to determine whether a plaintiff is a Medicare beneficiary. If so, they must report data pertaining to the claimant's (or plaintiff's, if litigation is filed) claims and the settlement or other resolution of the case to the Centers for Medicare Services (CMS). CMS was established by the U.S. Department of Human and Health Services to administer the Medicare program. It is important to note that the responsibility to report to CMS is conferred upon the RRE by statute, and cannot be passed off or delegated to claimants, attorneys, or medical treatment providers. What must be reported? The reporting guidelines suggest that data elements to be reported should include the injured party, the claimant's name (if different from the injured party), the policy information, or, if the entity is self insured, the claim or other tracking number, the incident information, the status of the claim or case, and the claimant's attorney's information. The information that RREs are required to report is subject to change upon directives from CMS. How to report? The RRE is required to designate both an "authorized agent," who registers the company with the CMS Coordination of Benefits Contractor (COBC), and an "account manager." Once registered, the RRE will be prescribed quarterly time periods, meaning that the RRE will report four times per year. The reporting process is completed electronically, and will take place between the RRE and the COBC. The COBC is tasked with managing the reporting process, and will provide support to RREs in the form of software and technical assistance. Penalties for non-compliance with MMSEA The reporting period was initially scheduled to start on January 1, 2010. However, this deadline has been postponed to January 1, 2011. After January 1, 2011, all required entities must report as directed. The penalties for non-compliance are steep-up to a $1,000 per day, per claim fine. There is no safe harbor or minimum threshold amount to preclude the assessment of penalties. Best practices guide for litigation and claims handling It is imperative that attorneys consult with clients who will be deemed to be RREs and counsel them on both the duties to report under MMSEA and the penalties for failing to do so. For attorneys who work for insurance companies, group health plans, or self-insureds, a simple one- or two- page letter advising clients on the existence of the new regulations can be an excellent tool to provide basic information about the legislation, as well as a marketing opportunity inviting the client to contact the attorney to learn more. Plaintiffs' attorneys will also want to be aware of the new reporting requirements. For attorneys litigating personal injury cases, it is important to conduct written discovery and depositions in a way that any information about treatment paid for by Medicare is ferreted out well in advance of a case's settlement or trial. We recommend serving a standard discovery request that asks if a plaintiff or plaintiff's dependent has ever been a Medicare recipient or applied for Medicare benefits. A request for production of the plaintiff's Medicare benefits card or Explanation of Benefits statements might also be prudent. Concluding the case It will also be increasingly important to identify lien amounts with information directly from Medicare prior to settlement of the case or trial. A frequent complaint of both plaintiff and defense attorneys is slow response times from CMS in response to requests for information. Unfortunately, with the implementation of MMSEA, the response times are likely to increase. It is prudent to follow up all calls with CMS in writing, and begin the process of obtaining lien amounts 90 days prior to mediation or trial. In a mediation or arbitration setting, best practices may dictate advising the mediator or arbitrator of the Medicare lien when he or she is retained, and include the most current information possible about the lien in the mediation or arbitration brief. MMSEA is expected to also impact awards for future damages, so more investigation into this issue on the part of both plaintiff and defense counsel is warranted. More information is available on the Web from the U.S. Department of Health and Human Services and CMS at www.section111.cms.hhs.gov. Tanya N. Lewis is an associate in the Salt Lake City, Utah firm of Richards Brandt Miller Nelson, and was an associate at the Las Vegas firm of Hutchison & Steffen from 2004 to 2009. Tanya is a 1996 graduate of the University of Washington and a 1999 graduate of the Seattle University School of Law. She practices primarily in the fields of insurance defense and commercial litigation and can be reached at tanya-lewis@rbmn.com. Medicaid, SCHIP
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Richards Brandt Miller Nelson Hires Three New Associate Attorneys October 13, 2010 - (Salt Lake City, Utah) Richards Brandt Miller Nelson announced today that attorneys Rudy J. Bautista, Tanya N. Lewis and Chad E. Funk have joined the firm as associates. The addition of the three brings the total number of attorneys with the Salt Lake City, Utah-based firm to 39. Bautista is a 1991 graduate of the United States Merchant Marine Academy in Kings Point, NY and a 1999 graduate of the Brigham Young University J. Reuben Clark School of Law. He has spent the last eleven years practicing criminal defense, and has tackled over 50 jury trials as lead counsel with 42 acquittals, and of the guilty verdicts, two have been reversed on appeal and one was to a lesser misdemeanor charge. At Richards Brandt Miller Nelson, Mr. Bautista will focus on representing individuals and companies in white collar criminal cases, and individuals in all criminal cases. Lewis is a 1996 graduate of the University of Washington and a 1999 graduate of the Seattle University School of Law. She is licensed to practice law in Utah, Nevada and Washington State, and focuses her practice in the areas of insurance law, commercial litigation, employment law and family law. Prior to and during law school, she worked as a marketing manager in the brokerage and high-tech industries. She worked previously at another large Salt Lake City firm and in Las Vegas, Nevada, where she served as the Editor-in-Chief of the Clark County Bar Association's monthly magazine. Funk is a 2002 graduate of Brigham Young University and a 2010 graduate of the Brigham Young University J. Reuben Clark School of Law. He will be practicing in the areas of commercial litigation and insurance law. Prior to law school, he worked in commercial banking as a loan underwriter for various Salt Lake City and Washington, D.C. financial institutions. "Rudy, Tanya and Chad bring a combined over 20 years of civil and criminal litigation experience to Richards Brandt Miller Nelson," said Gary L. Johnson, managing partner. "They also have achieved substantial success in careers outside the law. The biggest asset to any law firm is its people, and they will contribute greatly to the Richards Brandt team as we continue to grow our business across the board." Richards Brandt Miller Nelson, established in 1978, is a regional law firm based in Salt Lake City. It serves clients throughout the Intermountain West and nationwide, and offers services across a broad spectrum of legal practice areas. The firm is recognized statewide and nationally in such practice areas as litigation, business law, health care law, construction industry services, insurance law, family law and other matters, including appeals.
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The Utah law firm of Richards Brandt Miller Nelson in Salt Lake City serves clients statewide, including Provo, Ogden, Park City, Sandy, Draper, Orem, Layton, Bountiful, Tooele, Logan, St. George, West Valley City, South Jordan, Taylorsville, Summit County, Davis County, Morgan County, Cache County, Rich County and Weber County.
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