In our minds, many trial lawyers like to think of ourselves as warriors, clashing our weapons and out-maneuvering our adversaries. Some of us imagine ourselves in an epic struggle of good against evil, a pitched battle for nothing less than Justice — a transcendent reckoning, an adjustment or realignment of reality so that a wrong is righted and injury is undone.

There is sometimes great truth to our grandiose fantasies. We all know that U.S. lawyers have played enormous roles in the lives of many of their clients and for the benefit of society as a whole.

Unfortunately, though, parts of our job simply cannot be reconciled with our swash-buckling day-dreams. Word-counts, font choices, counting days and calendaring deadlines, on and on and on…. The appalling truth is that a major part of our professional lives is mind-numbing paper-pushing. Sometimes the Achilles heel of trial lawyers can be their failure to comply with a picayune point divorced from the drama that inspires us to do our work.

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“A Tough Knot to Crack” (photo by Jay Fanelli)

Update (May 19, 2017): This week’s published Minnesota Court of Appeals decision, Security Bank & Trust Co. (“SB&T”) v. Larkin, Hoffman, Daly & Lindgren, Ltd. (“LHD&L”) is yet another thread in Minnesota’s knotty jurisprudence on the appropriate accrual date of a legal malpractice case.

Mr. Gordon Savoie got allegedly bad estate planning help from LHD&L in 2009. The papers drawn up by LHD&L failed to include a provision for a generation-skipping trust or other mechanism to avoid a  generation-skipping tax. This lapse is alleged to have been legal malpractice.

Mr. Savoie died, SB&T became the personal representative and successor trustee to the estate, and, SB&T alleged that LHD&L’s negligence caused the estate a tax burden of $1.654 million.

So, the question before the court was when did the claim accrue? When LHD&L did the allegedly negligent work? When Savoie paid for it? When Mr. Savoie died? When the tax was imposed? When Mr. Savoie suffered “some damage” (or did he?)? When the trust suffered “some damage” (or did it?)? And when did Mr. Savoie suffer “some damages? When did the trust?

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The Cardsharps, painted by Caravaggio

The lawsuit, Transport Drivers, Inc. v. Coca Cola Refreshments USA Inc. (“TDI” v. “CCR”), in the U.S. District Court (D. Minn.), is a generic and stunningly boring contract dispute (like many others, admittedly).

In a nutshell: A predecessor of CCR made a promise to a predecessor of TDI in 1985. CCR and TDI made later promises to one another in 2010. The issue is whether the 2010 agreement erased all of the obligations in the 1985 agreement or whether CCR’s ’85 obligations persisted until 2013. In 2013, TDI suffered a loss that, TDI argues, CCR agreed to cover back in 1985.

This past week, U.S. Judge Donovan W. Frank (D. Minn.) denied CCR’s motion for judgment as a matter of law. That is, Judge Frank ruled that CCR could not win its argument — that the 2010 agreement effectively obliterated any and all obligations under the 1985 agreement — based solely on allegations in the pleadings and the related contracts.

As this matter proceeds, the Court is hopeful that discovery will lead to greater clarity over the relevance of these competing agreements and the nature of the business relationships between TDI and the relevant Coca-Cola entities. For these corporate entities seeking to govern their business affairs by contract, it seems clear that this case will likely be resolved by an interpretation of contractual terms to which the parties mutually agreed. Going forward, therefore, the parties will have the obligation to clearly persuade the Court regarding which contract governs this dispute and whether the terms of that contract support a judgment in their favor. Because the answers to these critical questions remain unclear at this stage, CCR’s Motion for Judgment on the Pleadings is denied.

Though the dispute is deadly dull (that is, if you’re not the one tagged with or threatened by $500,000+ of liability or one of the people being paid by the hour to win the dispute), there is a hidden gem on a strategic issue that civil litigators come across regularly.

If you have a card up your sleeve — the proverbial “ace in the hole” — when do you play it?

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Dallas Cowboy running back, Darren McFadden, has brought suit in Little Rock, Arkansas against Ameriprise, alleging that an Ameriprise financial adviser stole millions of dollars from McFadden. The Star Tribune reported the story late in the evening two days ago. The Minneapolis/St. Paul Business Journal picked up the story (noting and linking to the Strib’s story) and tweeted about it this morning.

Neither newspaper thought their readers might be interested in reading the complaint itself, I guess. Or they thought the $2.90 it costs to get a copy and the infinitesimal data storage costs 956 kilobytes might eat into their papers’ profit margins. Or they thought this is unfair to Ameriprise because complaints are one-sided, obviously biased, and potentially inaccurate allegations.

Whatever the case may be, once more, Minnesota Litigator fills the breach. Here, linked, is the complaint.

Update (May 15, 2017): In the case described below and in later Minnesota Litigator posts, we face an almost comic turn-around in which one litigant (Wells Fargo) fought to have a bench trial, lost that fight, and then won the case decisively before the jury.

The adversaries, Plaintiffs Blue Cross Blue Shield of Minnesota and other insurers (here, “BCBSM”) fought to have a jury trial, won that fight, and then lost their case before the jury.

Post-trial, U.S. District Court Judge Donovan W. Frank (D. Minn.) held that he would have found for the Plaintiff BCBSM but, he reasoned, his hands were tied. He thought he was bound by the jury’s finding in favor of Wells Fargo.

Plaintiffs appealed their loss at trial and also the judge’s decision that his hands were tied as to “non-jury” parts of the case by the jury verdict (that is, the parts for the judge and not the jury to decide). The Eighth Circuit held that “the district court failed to consider whether the parties waived the application of collateral estoppel.

In other words, can the Plaintiffs object to the jury verdict when they argued so strongly in favor of a jury? Can Wells Fargo object to the judge’s own determination of liability on “non-jury” questions when Wells Fargo argued so strenuously against a jury and for the judge’s decision?

On May 5, Wells Fargo made its plea for U.S. District Court Judge Donovan W. Frank (D. Minn.) to reconsider his March 14 decision that Wells Fargo “waived the jury verdict’s preclusive effect.

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When, IF EVER, is OUTRAGE appropriately expressed in legal writing???

When should lawyers use bold italics for emphasis (or for anything?)???

ALLCAPS??? Multiple punctuation marks??? Other colloquial expressions or punctuation? 😉 (!?) OMG LOL

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Katherine L. MacKinnon

[NOTE: Notwithstanding the auto-populated “by-line,” above and to the left, the post below is by an eminent Minnesota ERISA benefits litigator and counselor, Kate Mackinnon (pictured to the left, from her 2014 Minnesota Litigator profile).]

 

What does it mean that a Minnesota health insurer is bound by a decision of an external review organization? In Linn v. BCBSM, Inc. (Minn. Ct. App. 1/30/17), Mr. Linn purchased a private health policy from Blue Cross Blue Shield of MN (BCBSM).  He later developed chondrosarcoma of the thoracic spine.  His physicians recommended proton beam radiation therapy (PBRT).

But the BCBSM policy stated PBRT was medically necessary for chondrosarcoma affecting the cervical spine or base of the skull. However, for all other conditions PBRT was investigational and not covered.

BCBSM denied Mr. Linn’s claim as not covered.  Under Minn. Stat. §62Q.73, an insured who receives an adverse determination from a health insurer may seek review by an external review organization (“ERO”).  The ERO decides whether the care was “medically necessary” as defined by the statute.  That determination is nonbinding on the insured but binding on the insurer.  Minn. Stat. §62Q.73, subd. 8.

The ERO concluded PBRT was medically necessary.  BCBSM paid the claim.

Normally that would end the dispute.  But Mr. Linn claimed the policy also promised he would receive “timely” service.  He claimed the favorable ERO determination meant that BCBSM breached the contract when it denied his claim and thereby delayed.  BCBSM defended saying it followed the policy language and when the ERO reversed BCBSM paid.  Where is the breach?

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Update (May 8, 2017): In the Sorin v. St. Jude case, covered here at some length previously, the court awarded Defendant St. Jude, the victor at trial, its costs last week (costs claimed: $49,354.24, costs allowed: $47,444.85).

At the same time, Sorin’s motion for a new trial, discussed below, is pending. In an earlier post, we predicted that Sorin would lose its motion for a new trial but Sorin’s reply brief in support of its motion is strong advocacy. It shakes our confidence in our prediction.

(Having said that, check out the number of Faegre lawyers on the signature block. At what point does the cost exceed the benefit of yet another talented lawyer’s input to a legal brief?)

Will Chief Judge John R. Tunheim (D. Minn.) be more swayed by Sorin’s effort to exclude evidence that Sorin itself proposed as evidence at trial, or by St. Jude offering evidence that St. Jude has strenuously objected to (and then used at trial), or, finally by the simple fact that ordering a new trial is a drastic and expensive measure to address one supposed evidentiary defect. Does a single bad call in a 9-inning game require a rematch?

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Update (May 5, 2017): Reading Sr. U.S. District Court Judge Richard H. Kyle, Sr.’s recent order on the issue of improper service of process in conjunction with the defendants’ legal brief in support of their motion to dismiss fills us with foreboding for the prospects of plaintiff’s audacious class action complaint based on his receipt of a prank telephone call.

Maybe we’re just cocky after our most recent successful Minnesota Litigator prediction but we’ll predict that this putative class action is no-go from the get-go.

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Mr. Mahendra Trivedi, the Trivedi Foundation, and the Trivedi Companies (Trivedi) claim to have performed 70,000 miracles around the world and, believe it or not, some people are skeptical.

Dennis Lang, a free-lance writer, wrote a story about the so-called Trivedi Effect and the Trivedi business, suggesting Trivedi’s busines is a sham.

Judge Robert Awsumb of the Ramsey County District Court threw Trivedi’s case of defamation against Lang out, ruling that Trivedi was a “limited-purpose public-figure” and Mr. Lang was a “media defendant” based on his on-line publication of seven freelance articles. The Minnesota Court of Appeals affirmed in part but reversed in part.

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