The general rule in Iowa is emotional distress damages are not recoverable in torts, “absent intentional conduct by a defendant or some physical injury to the plaintiff”. Miranda v. Said, 836 N.W.2d 8, 14 (Iowa 2013). This rule recognizes there is no duty in tort law to avoid causing emotional damages. Id. The duty to exercise ordinary care to avoid causing emotional harm is recognized only when supported by the [...]
Associate Erin K. Artz was recently selected to serve on the Executive Committee for the Nebraska State Bar Association’s (NSBA) Tax Section. The Section is dedicated to promoting and improving the professional knowledge and skill of its members by addressing practical and legal issues arising in taxation laws and regulations, as well as cultivating social and professional relationships among its members and disseminating information of interest to its [...]
Lamson Dugan & Murray LLP is pleased to announce the nomination of Partner Jason W. Grams to become a Nebraska State Bar Foundation Fellow. Fellowship is awarded to a select number of Nebraska lawyers who distinguish themselves through professional achievements and contributions to the Foundation. Only 30 lawyers are nominated and elected annually. Mr. Grams joins six other Lamson Dugan & Murray attorneys who achieved this honor: • [...]
Partner William R. Settles celebrates 30 years of membership in the Nebraska State Bar Association (NSBA). The NSBA works for Nebraska lawyers to help them achieve the highest standards of competence, ethics and professionalism and to protect and promote the administration of and access to justice. Mr. Settles has 30 years of experience defending physicians, hospitals and other health care providers. Read more about his expertise and accomplishments, [...]
Partner Anne Marie O’Brien was recently elected President of the National Association of Railroad Trial Counsel (NARTC). This 67 years old national transportation organization is made up of the top railroad trial attorneys from across the United States and Canada. NARTC is devoted exclusively to serving the rail industry’s litigation needs. Anne Marie is regularly chosen to speak on her expertise to the membership on trial, insurance and [...]
Partner Kyle Wallor celebrates 25 years of membership in the Nebraska State Bar Association (NSBA). The NSBA works for Nebraska lawyers to help them achieve the highest standards of competence, ethics and professionalism and to protect and promote the administration of and access to justice. Mr. Wallor will be honored at the NSBA’s 2022 Annual Meeting Legacy Luncheon later this fall.
Lamson Dugan & Murray LLP is proud to share that Daniel P. Chesire was awarded the Father Flanagan Distinguished Alumnus Award at Boys Town’s Alumni Dinner. This achievement is the highest and most prestigious award given by the Boys Town Alumni Association. It recognizes alumni who have achieved substantial personal and professional growth and advancement over an extended period of time, made significant contributions to society and service [...]
Lamson Dugan & Murray LLP is pleased to announce seven attorneys have been selected to the 2022 Great Plains Super Lawyers list. Each year, no more than five percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. 2022 Great Plains Super Lawyers Daniel P. Chesire - Personal Injury: Defense Jason W. Grams - Business Litigation Anne Marie O’Brien - [...]
For six-and-a-half years, Anne Marie O’Brien and Mike Storey represented the building owners in Omaha's historic Old Market, whose home and businesses were destroyed by the January 2016 explosion and fire. From day one, the Metropolitan Utilities District (MUD) denied any wrongdoing. After more than a hundred depositions, successfully defeating MUD's sovereign immunity arguments before the Nebraska Supreme Court, and a two-week bench trial in February 2022, Ms. [...]
Partner Eric W. Tiritilli was recently elected to the Board of Directors for United Way of the Midlands. United Way of the Midlands serves those living in poverty helping them to work toward independence by investing in programs that focus on basic needs, education and financial stability. Mr. Tiritilli will serve a three-year term on the Board beginning July 1, 2022.
Fresh from a mistrial due to COVID causing the jury panel to be deficient in number, I was thinking of some non-scientific observations about jurors, jury selection, and jury pools during our ongoing COVID era. Some juror’s attitudes have changed our jury venire and the possible areas of inquiry to “deselect” jurors in a very scientific area of litigation: medical malpractice lawsuits. Here are some observations and areas of inquiry [...]
Despite practicing in only one state, many physicians maintain licenses to practice in multiple states. Some maintain active licenses in states where they no longer practice just in case they decide to return at some time in the future. Others allow the licenses to lapse and become inactive, having no intention of practicing in the former state again. Physicians holding more than one medical license, whether active or inactive, should [...]
In Downing v. Grossman, an April 2022 decision, the Iowa Supreme Court reaffirmed that medical malpractice plaintiffs may not use allegations of fraudulent concealment to employ equitable estoppel to eviscerate the operation of Iowa Code § 614.1(9)’s a statute of repose when the alleged fraudulent concealment goes to the very “heart of” a plaintiff’s claim. To understand Downing, it is important to keep in mind the similarities and differences between [...]
Contractors working on federal projects continue to face losses caused by COVID. Recovering these losses is proving difficult and the Sovereign Acts Doctrine may make it even more difficult. The Sovereign Acts Doctrine balances the government’s dual role in acting as a contractor and the sovereign. When the sovereign takes action which is in the public good, a breach of contract action will not stand against the sovereign. In order [...]
Partner, Stacy Morris, was recently elected to the Alumni Association Board of Directors of Saint John’s University. Founded in 1857, Saint John’s is a Benedictine liberal arts university located in Collegeville, Minnesota. Mr. Morris is a 1997 graduate of Saint John’s, and will serve a three-year term on the Board beginning July 1, 2022.
The Supreme Court of the United States recently expanded the ability of states to recoup health care costs from accident victims under the Medicaid Act. The case, Gallardo v. Marstiller, involved injuries sustained by a plaintiff when she was hit by a motor vehicle as she stepped off a school bus in Florida. Florida’s Medicaid agency paid $862,688.77 for Ms. Gallardo’s initial medical expenses. Ms. Gallardo, through her parents, sued the [...]
Partners Mark Novotny, William Settles and Mike Storey, along with nationally recognized expert Doug Blair, recently presented a seminar at The Field Club of Omaha as to legal ramifications of Electronic Medical Records and Audit Trails in medical malpractice litigation. The audience was made up of LDM clients and insurers, information technology officers and risk managers. Topics included discussing how electronic medical records and audit trail [...]
When recently defending my physician client in a medical malpractice deposition, Plaintiff’s counsel started asking questions outside the lines. I objected and he immediately retorted back that I did not know the Rules of Evidence and that his questions were legitimate. He claimed certain testimony privileges only apply in criminal matters. I stood on my objections and my physician client followed my lead and did not answer the questions. But [...]
In 1986, Congress enacted the Emergency Medical Treatment and Active Labor Act (“EMTALA”), 42 U.S.C.S. § 395dd, which requires treatment of any person coming to an emergency department regardless of their insurance status or ability to pay. This is commonly referred to as the “anti-dumping” law. Although EMTALA is a federal regulation, hospitals and other healthcare facilities are subject to civil liability for EMTALA violations. Thus, it is important for [...]
Partner, Daniel J. Hassing has expanded his practice to the state of South Dakota and can now serve clients as a member of the South Dakota State Bar. Dan’s admission into South Dakota gives the firm a greater geographical reach to service its clients.
Dave Schmitt, a partner at Lamson Dugan & Murray LLP, secured summary judgment for BNSF Railway in two separate toxic tort lawsuits. The United States District Court for the District of Nebraska dismissed both cases finding they were time-barred by FELA’s three-year statute of limitations, 45 U.S.C. § 56. In Salstrand v. BNSF Ry., No. 4:20-cv-3146 (D. Neb. 2022), the plaintiff was diagnosed with multiple myeloma on March 3, 2014. [...]
Dave Schmitt obtained summary judgment in two separate toxic tort lawsuits filed against the railroads he represented. In both cases the plaintiffs claimed they suffered cancer as a result of alleged exposures to diesel exhaust and environmental hazards during their railroad employment. Schmitt secured the plaintiffs’ medical records, employment records, and deposition testimony to offer in support of motions for summary judgment. The United States District Court for [...]
In Nebraska, comparing what is charged in medical expenses to what was actually accepted as a complete payment of those medical expenses, including the patient deductible, is important in litigating every medical malpractice case. The measure of recovery for medical expenses is the reasonable value of the medical services rendered. Stanek v. Swierczek, 209 Neb. 357, 307 N.W.2d 807 (1981). Plaintiff's attorneys frequently cite a provision of Nebraska's hospital lien [...]
Contractors are often surprised to learn that they do not have insurance coverage if the materials they provide fail. A recent case out of the 11th Circuit Court of Appeals (which oversees Alabama, Florida and Georgia), upheld the trial court’s ruling that a contractor’s insurer was not required to cover claims that the concrete it provided did not meet specifications. The controversy arose when Morgan Concrete (“Morgan”) agreed to supply [...]
Partner Mike Storey presented to the Independent Insurance Agents of Omaha on May 26, 2022. Mr. Storey’s presentation focused on recent decisions by the Nebraska Supreme Court and the Nebraska Court of Appeals on the duties of insurance agents under Nebraska law. This included two favorable decisions obtained by partner Sean Minahan on behalf of Nebraska insurance agents and brokers. As part of his presentation, Mr. Storey also [...]
LDM is excited to welcome five amazing and talented law students who have joined our team as summer law clerks. Ethan Dunn will be located in our West Des Moines office, and Cameron Scott, Tevyn Waddell, Ethan Hoogevven and Jelena Milakovic will be joining our Omaha team. We are thrilled that Maddie Hasley and Roger Sack, our amazing and talented 2L law clerks, have returned to LDM to [...]
Bryony Whitaker joined Lamson Dugan & Murray’s Des Moines office as an Associate in the Litigation Dept. Ms. Whitaker was born and raised in England where she obtained a law degree, and worked as a legal conflict’s analyst. She then moved to the US to attend the University of Iowa, College of Law. In her first year, she became the University’s youngest student to be selected for the Willem [...]
Janice M. Thomas joined Lamson Dugan & Murray’s Des Moines office as a Partner in the Litigation Dept. Ms. Thomas received her law degree from Drake University where she was a member of the Moot Court Board and her undergraduate degree from the University of Iowa. Ms. Thomas is a Fellow of the American College of Trial Lawyers. Fewer than one percent of the total number of lawyers [...]
As medical malpractice defense attorneys, we are often asked: Will the opposing party be able to find an expert to support what is believed to be a baseless claim of malpractice? We must respond that we do not know, but in the United States usually if you are willing to pay enough money, you can find an expert to say almost anything. There is a cottage industry of so-called expert [...]
Every licensed health care provider dreads receiving that certified letter with the return address, “Nebraska Department of Health and Human Services, Investigations Division.” Opening the letter doesn’t help matters: “Dear sir or madam, we are gathering information regarding a complaint that has been made against you. The complaint alleges that you blah, blah, blah. Please provide your written response to this office no later than 14 days after receipt of [...]
In 2017, Iowa enacted a statute that aimed to dismiss meritless medical malpractice actions early in the case. The statute, Iowa Code § 147.140, requires that a plaintiff provide a certificate of merit signed by an expert within 60 days of the defendants’ answer. The certificate must address the standard of care and the defendant’s alleged breach of that standard. If the plaintiff fails to provide such a certificate, the [...]
Giving a deposition is a form of communication that is usually completely foreign to health care providers. The surgeon who is in complete control of her operating suite may find herself utterly lost in a conference room surrounded by attorneys. Some physicians become old hands at giving depositions, but for newcomers to the arena, emphasizing a few do’s and don’ts can make the process easier: DO Spend the time it [...]
They say the truth will set you free, but one nurse who told the truth about a medication error she committed in 2017 now faces up to 8 years in jail. On March 25, 2022, following a 3-day trial, RaDonda Vaught, a former nurse at Vanderbilt University Medical Center (VUMC), was found guilty of gross neglect and negligent homicide of 75-year-old Charlene Murphey. Murphey died as the result of Vaught administering a [...]
Contractors are no strangers to arbitration or mediation clauses in construction contracts. These provisions clearly identify the process for dispute resolution at the outset of a project rather than having to deal with disputes over how to resolve disputes. However, a recent case in Florida illustrates the importance of following the requirements of these provisions to protect your rights. In Leder v. Imburgia Constr. Servs., 325 So. 3d 256 (Fla. [...]
The statute of limitations is a frequent defense in medical malpractice cases. Patients are often reluctant to sue a physician with whom they have an ongoing relationship. This has led to many cases being filed after the statute of limitations has expired. In the past, patients have relied upon the vague and confusing “continuous treatment doctrine” to avoid the statute of limitations. That will now be much more difficult to [...]
In any medical malpractice case where a plaintiff claims your physician-client violated the applicable standard of care, one of the defense attorney’s first tasks is—or should be—to identify an expert to defend your client’s treatment. At first glance, this task seems straightforward. After all, the simple goal is to identify a person that can vouch for the care your client provided. But states maintain distinct standards that sometimes differ as [...]
Dan Hassing recently secured a summary judgment for his client on a premises liability claim. In the case, Mr. Hassing represented a health club in greater Nebraska. The claim involved significant personal injuries including a fractured vertebrae. The plaintiff alleged that he had suffered the injuries as the result of being pushed into the wall during a game of basketball. The plaintiff claimed that the club knew that [...]
Last month, the US Department of Labor issued a Notice of Proposed Rulemaking to update the Davis-Bacon wage regulations. Specifically, the Department proposes to amend regulations issued under the Davis-Bacon that set forth rules for the pre-determination of Davis-Bacon wage rates. The Davis-Bacon Act, created in 1931, requires contractors and subcontractors working on federally funded projects to pay employees locally prevailing wages and benefits. At present, Davis-Bacon wages are required [...]
LDM attorneys and staff volunteered at the United Way’s Shine Bright event, where they rolled up their sleeves to put together care kits for local students. The 4000 Shine Bright boxes contained essential hygiene items which were age, gender, and ethnicity specific, and will be distributed to kids in the OPS and CBPS surrounding areas. The hope is that every box distributed to a student in their [...]
Every pilot who holds a medical certificate has at one time filled out Form 8500-8. Form 8500-8 is the form we all fill out when we apply for medical certificates. Form 8500-8 asks us, among other things, to disclose whether we have ever been diagnosed with a series of medical conditions. Providing false information on these forms is a felony and thus carries with it significant consequences, as one California [...]
You’re a cattle owner and one of your more ornery cows has escaped the pasture. Of course the pasture was fenced so you’re unsure of how she managed to escape. Before you can find her, you discover a cattle-vehicle collision on the highway not far from the pasture. Lo and behold, the vehicle collided with your cow while she was crossing the highway. Unfortunately, the other driver was injured. Can [...]
Dan Hassing and Mark Novotny recently secured a summary judgment for their clients on a legal malpractice claim. Hassing and Novotny represented a team of lawyers who had been sued on allegations that they had negligently handled a challenge to a tax increment financing project in rural Nebraska. Hassing and Novotny argued that the claim against their clients was barred by the statute of limitations. To support [...]
On March 15, 2022, LDM Attorneys Pat Vipond and Mike Storey obtained a unanimous defense verdict in a medical malpractice case after a four-day jury trial in the District Court of Douglas County, Nebraska. The case, which originated in 2014 and was the subject of two appeals to the Nebraska Court of Appeals and Nebraska Supreme Court, involved allegations that the defendant failed to diagnose Epstein Barr [...]
On February 1, 2022, the Office of Federal Contractor Compliance Programs (OFCCP) launched the contractor portal through which Federal Contractors must register their organization. Federal Contractors will have until June 30, 2022 to certify that they have complied with Affirmative Action Plan requirements. WHICH FEDERAL CONTRACTORS HAVE TO CERTIFY? Service and Supply Contractors (and subcontractors) must certify that they have adopted an Affirmative Action Plan. Construction Contractors do not have [...]
Congress enacted the Miller Act to provide protection to contractors furnishing labor and material on federal projects. Many states, including Nebraska and Iowa, have enacted “Little Miller Acts,” which provide that same protection on state and county public projects. These laws require general contractors on certain government jobs to carry a performance bond to protect the government against delays and incomplete work. Those covered are also required to carry payment [...]
Partner, Cathy Trent-Vilim has been selected as the State Chair for Nebraska for the ABA Council of Appellate Lawyers. The State Chairs Committee was established to help carry out the Council’s goals of promoting excellence in appellate practice and building a stronger appellate bar to benefit courts, lawyers, clients, and the public. The Committee includes experienced appellate attorneys selected to serve as State Chairs in every state, the District [...]
Although we may be seeing the light at the end of the long COVID-19 tunnel, for those employers who have instituted a mandatory COVID-19 vaccination policy, a new law in Nebraska applies to you. On Monday, February 28, 2022 Governor Ricketts signed LB 906. LB 906 requires employers who have a mandatory vaccination policy to allow for exemptions for employees who have a religious objection to the vaccine or a [...]
Lamson Dugan & Murray attorney Lily Ealey recently spent her Friday nights and Saturday mornings coaching two thriving law students, Essence Hill and Dajuan Davis, to compete in the Thurgood Marshall Moot Court competition at the Midwest Regional BLSA convention. Her hard work and investment in these young students paid off. This dynamic duo advanced to the semi-finals and placed 4th overall. Please join us in congratulating Lily [...]
Construction contracts typically allow for modifications during the course of performance. Parties can agree to change the scope of work or price that was originally agreed to. For example, contractors can run into unexpected costs due to another’s negligence or delays. Material costs may go up and the contract price may become inadequate. Modifications allow for contractors to be fairly compensated for the increased costs that result through no fault [...]
Opioid abuse has grown into a crisis that has occupied the headlines in recent years. The Centers for Disease Control and Prevention estimates that the total "economic burden" of prescription opioid misuse alone in the United States is $78.5 billion a year, including the costs of healthcare, lost productivity, addiction treatment, and criminal justice involvement. The root of the problem is misuse of opioids prescribed for chronic pain. It is estimated [...]
