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Geoff Trachtenberg

Assignments vs. Liens In the Personal Injury Context

A large number of people, attorneys included, don’t know the difference between “assignments” and “liens.”Why does it matter, you ask? For a number of reasons that will be more obvious when the difference is understood.An assignment is the easier of the two to understand since, as the name implies, it is an transfer of all or some rights or property to a third-party. Although an assignor…

Geoff Trachtenberg

Failure to Plead Sufficient Facts – The New Legal Malpractice?

There’s a new case out this week from Division Two, Cullen v. Koty-Leavitt Insurance, which deals with the reasonable expectations doctrine in the UIM setting. The case is not particularly fascinating from a substantive perspective, but it raises questions about potential legal malpractice exposure.In sum, Cullen filed a UIM claim based upon the fact that his family was given the right to…

Geoff Trachtenberg

Experts Not Allowed to Testify to the Percentage of Fault

Division One just handed down Webb v. Omni Block, Inc., a clearly written opinion which decisively eliminates an expert’s ability to testify as to the “percentage of fault” for any party or non-party.In Webb, defendant, Omni Block, hired an expert who testified as to the specific percentage of fault (or lack thereof) for various parties and non-parties. Judge Jones allowed this testimony and…

Geoff Trachtenberg

Three Trial Courts Hold Medical Malpractice Statute Unconstitutional

In last few years, many states adopted protectionist legislation in favor of the medical industry. The legislation essentially puts up various barriers to bringing medical malpractice cases by, among other things, attempting to impose expensive and burdensome constraints on the way these types of cases are litigated.The medical lobbyists, of course, claim that the legislation is necessary to…

Geoff Trachtenberg

Bell Atlantic v. Twombly: The Day "Notice Pleading" Died (Sort Of)

On May 21, 2007, the U.S. Supreme Court handed down Bell Atlantic v. Twombly, 550 U.S. ___ (2007), announcing the “retirement” of the long-standing standard for dismissal of complaints articulated in Conley v. Gibson, 355 U.S. 41 (1957) – i.e., the standard that complaints should not be dismissed “unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his…

Geoff Trachtenberg

The Medical Malpractice Myth: Legal Analysis Finds That Patients Fare Poorly in Court

As any medical malpractice attorney worth their salt will tell you, there is absolutely no epidemic of plaintiffs’ medical malpractice verdicts. As these attorneys know, very,very few medical malpractice cases are worth pursuing and fewer still result in a monetary award or settlement. Indeed, it is somewhat laughable that so-called tort reformers advance medical malpractice caps of $250,000…

Geoff Trachtenberg

Tax Liability Arising Due to Confidentiality Clauses in Settlement Agreements

Did you know that a confidentiality clause can have tax consequences? This was the subject of a United States Tax Court opinion in Amos v. IRS (2003), the case where Dennis Rodman kicked a courtside TV cameraman in the groin.The Court held that, if a portion of a settlement is attributable to a confidentiality agreement, that portion is taxable. It is not clear what the long-term effects are…

Geoff Trachtenberg

Is a Medical Malpractice Claim "Mature" If There Is No Present Injury?

As a rule, every medical malpractice claim must have four elements — duty, breach, causation and damages — and, at least as a general rule, you need all of them to have a cognizable claim. Sometimes, however, there can be an issue as to when a claim is “mature,” i.e., complete or ripe.Take, for example, a person who has an increased risk of disease because he has been exposed to a defective…

Geoff Trachtenberg

Certificate of Merit Legislation: Arizona's Unconstitutional Barriers to Justice

Like a number of other states, the Arizona Legislature recently caved to special-interests and adopted a so-called “certificate of merit” procedure for medical malpractice cases, ARS 12-2303. This procedure sets forth a somewhat complicated series of requirements for people filing medical malpractice claims. As a practical matter, however, the statute discriminates against those injured by a…

Geoff Trachtenberg

Couple Sues Fertility Clinic for Wrong Sperm

A whole new type of medical malpractice is brewing in the fertility field. For example, today a New York court ruled that a couple can proceed with a lawsuit against a fertility clinic for medical malpractice after the wife gave birth to a daughter whose skin they thought was too dark to be their child.This follows a story from two weeks ago, where a couple sued a negligent clinic for lost…