Former clerk sues Hackensack council, former city manager

Today's post is shared from northjersey.com

The former Hackensack clerk is suing the city, the former interim manager and all five City Council members for “in excess of” $2 million over claims they illegally retaliated against her and drove her out of her job because of her personal relationship with a political foe of the administration.

Debra Heck, who left the job in December, filed the lawsuit Wednesday in U.S. District Court in Newark. Heck said in the complaint that she resigned because of “hostile” and “intolerable” working conditions and intimidation by her superiors.

The alleged hostility began when council members learned that she was in a romantic relationship with Richard Salkin, a former city attorney who is aligned with the council’s political opponents, according to the lawsuit.

“The city had no problem with her job performance until it became publicly known she was engaged in a relationship with Rick Salkin,” said Heck’s lawyer, Jason Nunnermacker. “They continued to discriminate against her because of her perceived political affiliations and her relationship with him. They made her miserable.”

City attorney Thomas Scrivo did not return calls...

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Deal reached on tobacco firm corrective statements

Today's post was shared by FairWarning and comes from www.washingtonpost.com

RICHMOND — The nation’s tobacco companies and the federal government have reached an agreement on publishing corrective statements that say the companies lied about the dangers of smoking and requires them to disclose smoking’s health effects, including the death on average of 1,200 people a day. The agreement, filed Friday in U.S. District Court in Washington, follows a 2012 ruling ordering the industry to pay for corrective statements in various advertisements. The judge in the case ordered the parties to meet to discuss how to implement the statements, including whether they would be put in inserts with cigarette packs and on Web sites, TV and newspaper ads. The court must approve the agreement, and the parties are discussing whether retailers will be required to post large displays with the industry’s admissions. The corrective statements are part of a case that the government brought in 1999 under the Racketeer Influenced and Corrupt Organizations Act. U.S. District Judge Gladys Kessler ruled in that case in 2006 that the nation’s largest cigarette makers concealed the dangers of smoking for decades. The companies involved in the case include Richmond-based Altria Group, owner of the biggest U.S. tobacco company, Philip Morris USA; No. 2 cigarette maker, R.J. Reynolds Tobacco, owned by Winston-Salem, N.C.-based Reynolds American; and No. 3 cigarette maker Lorillard, based in Greensboro, N.C. Under the agreement with the Justice Department,...

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Federal judge rules proof of direct causation unnecessary for BP oil spill claimants

Today's post is shared from jurist.org

[JURIST] US District Judge Carl Barbier for the US District Court Eastern District of Louisiana [official website] ruled [order, PDF] on Tuesday that BP [corporate website] could not require businesses to provide proof their economic losses were directly caused by the 2010 Deepwater Horizon Oil Spill [JURIST news archive] under the terms of their prior settlement agreement. Under the $9.2 billion settlement, BP had agreed that businesses in certain geographical regions were presumed to have economic losses from the oil spill if those losses followed a specific pattern. BP had challenged those terms [Bloomberg report], arguing that businesses could only recover if their damages directly linked to the spill, and stating that spill payments had been wrongly inflated through fake claims and poorly calculated economic losses. Barbier wrote that "the delays that would result from having to engage in a claim-by-claim analysis of whether each claim is 'fairly traceable' to the oil spill...are the very delays that the Settlement, indeed all class settlements, are intended to avoid" and that not only was the framework BP previously agreed "an efficient and 'economically appropriate' method of determining causation," but that a showing of direct causation "would bring the claims administration process to a virtual standstill." BP has indicated that it will appeal the ruling. However, Barbier did side with BP on one...

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BP Trial in 2nd Phase, to Set Amount of Oil Spilled

Post shared from the nytimes.com.

With billions of dollars in penalties at stake, the civil trial of the British oil company BP begins its second phase on Monday, which will set the amount of oil that spilled into the Gulf of Mexico from the 2010 Deepwater Horizon rig explosion that killed 11 workers and soiled hundreds of miles of beaches. The government will argue that a total 4.2 million barrels of oil was discharged into the sea over 87 days, the equivalent of nearly one-quarter of all the oil that is consumed in the United States in a day. BP will counter that the number was closer to 2.45 million barrels. This phase of the trial will also determine if BP prepared adequately for a blowout and if it responded properly once the oil started flowing. Both sides will present their case in Federal District Court in New Orleans using competing technical calculations over the next four weeks. Hanging in the balance are Clean Water Act fines that range from a maximum of $1,100 for every barrel spilled through simple negligence to as much as $4,300 a barrel if a company is found to have been grossly negligent. “This will be largely a battle of experts,” Blaine G. LeCesne, a law professor at Loyola University New Orleans. The first phase of the trial, which took place over two months this year, centered on whether BP and its contractors were guilty of gross negligence — tantamount to wanton and reckless behavior — in causing the blowout of the Macondo well. Judge Carl J....

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Halted: Medicare Secondary Payer Recovery Contractor Demand Letters

The Medicare Recovery Contractor (MSPRC) has now posted a notice on its web site that, "...Issuance of the Rights and Responsibilities (“RAR”) and Demand letters has been temporarily suspended while these letters are under review. The MSPRC is still working cases, and the RAR and Demand letters will be mailed out once appropriate revisions have been made."

This follows a recent US District Court ruling enjoining CMS's collection procedures. Haro v. Sebelius, (A. Ariz.) CV 09-134 TUC DCB

Click here for Court Order entered May 5, 2011.

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RICO Case Dismissed By Trial Court After US Supreme Court Decision

A Federal District Court in Michigan has dismissed a RICO [Racketeer Influenced and Corrupt Organizations Act] claim against Cassens Transportation Company and several other defendants. This is the third time the case was negatively reviewed by the US District Court in Michigan and follows a landmark decision in the US Supreme Court supporting the RICO action that flowed from an underlying  by a workers' compensation action.

"The Court concludes that Plaintiffs' exclusive remedy for their claim that they were fraudulently denied benefits under the WDCA [Workers' Disability Compensation Act] lies within the exclusive administrative scheme set forth in the WDCA which forcloses their RICO claim."

Brown v Cassens Transportation Company, et al. No. 04-cv-72316, 2010 WL 3842373, Decided Sept. 27, 2010.

Click here to read more about RICO claims and workers' compensation.

For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered work related accident and injuries.

CMS Has 6 Year Statute of Limitations-Court Dismisses MSP Recovery Claim

A Federal District Court in Alabama has declared that the Centers for Medicare and Medicare Services (CMS) is limited to a 6 year statute of limitations in asserting as recovery / reimbursement claims under the Medicare Secondary Payer Act (MSP).

The case stems from a toxic-tort claim against Monsanto Company alleging harms flowing from the use of PCBs. A global, nationally publicized, settlement was reached in the amount of $300 Million in 2003 involving more than 20,500 people. More than 14 years after the settlement CMS initiated a recovery action under the MSP.

"Because the MSPA is silent as to a deadline for filing a claim for recovery, the parties agree
that the relevant statute of limitations for the Government’s claims, if any, is governed by the Federal Claims Collection Act (“FCCA”). 28 U.S.C. § 2415 (2008); see also In re Dow Corning, 250 B.R. 298, 350-51 (Bktrpcy. E.D. Mich. 2000) (stating the universal recognition of FCCA’s applicability to the Government’s MSPA claims). The parties disagree, however, as to whether the FCAA’s six year or three-year statute of limitations applies."

The Court rejected the Government's "implied-at-law contract theory as applicable to the Corporate Defendants," because "it stretches too far beyond the bounds of logic and reason to adopt absent precedent." The Court held that the claim was based in tort and applied a 3 year statute of limitations and determined that Government had filed its claim against the Corporate Defendants "too late."

As to the Attorney Defendants, the Court held was based on contract law.

"Logic suggests that the Attorney Defendants who represented the tort plaintiffs in the
Abernathy case, the alleged Medicare beneficiaries in the instant case, essentially acted as agents pursuant to the contractual relationship between the Government and the Medicare beneficiaries. More specifically, the Attorney Defendants’ obligation to pay their clients any monies allegedly owed to the Government for Medicare reimbursement, unlike that of the Corporate Defendants, arose not from any tortious conduct on behalf of the Attorney Defendants themselves but from an express contractual relationship with the Medicare beneficiaries—namely, any fee agreement or attorney client agreement between them. From that perspective, the Attorney Defendants’ MSPA obligation is essentially founded upon a contractual obligation."

"For these reasons, the grounds for statute of limitations determination as applied to the
Attorney Defendants is more reasonably founded upon contract rather than tort. The contractual nexus is clearer in this instance than as alleged against the Corporate Defendants, whose MSPA obligations ultimately arose from, and cannot be divorced from, allegations of tortious conduct. The court, therefore, concurs that the six-year statute of limitations applies as to the Attorney Defendants."

The accural of the Government's MSP action was held to be different for the two groups of defendants. As to the Corporate Defendants the action arise no later than the point of execution and court approval of the settlement. As to the Attorney Defendants the cause of action arose when payment was made.

The Court noted the the Government could have intervened in the underlying action but chose not to do so. Perhaps the Government will now seek to intervene in all underlying claims. Additionally the Court rejected a statute tolling argument based a fraudulent concealment.

United States of America v James J. Stricker, et al., CV 09-BE-2423-E (USDCT ND Alabama) Filed September 30, 2010 3:59pm.

For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered work related accident and injuries.

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Stay Lifted in RICO Class Action Against Wal-Mart

A Federal Judge has lifted a stay in a class-action law suit against Wal-Mart that charges the company with conspiring with workers' compensation insurance companies to limit medical treatment for injured workers. The stay was lifted by U.S. District Court Judge Robert Blackburn on July 1, 2010. 

The claim, on behalf of 7,000 Colorado Wal-Mart workers charges conspiracy with: Claims Management Inc., American Home Assurance Co. and Concentra Health Services Inc., to control medical treatment, who may have been entitled to treatment under the Colorado Workers Compensation Act. Other allegations of fraud are also asserted.

Gianzero et al. v. Wal-Mart Stores et al., No. 09-00656, stay lifted (D. Colo. July 1, 2010).

Click here for additional articles about Wal-Mart and workers' compensation. For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900 jon@gelmans.com  have been representing injured workers and their families who have suffered asbestos related illnesses.