Pacific Northwest Injury Law Advocate - News & Updates on Personal Injury Law with a Focus on the Northwest & Seattle-Tacoma Metro Area

Jessie Owen serves as an inspiration to all in this news story on KOMO News. Check it out and spread the word about our search for witnesses to the tragic incident.

Just a few days ago, President Obama signed H.R. 1845 (112th), the bipartisan Strengthening Medicare and Repaying Taxpayers (SMART) Act, which was introduced by Reps. Tim Murphy (R-PA) and Ron Kind (D-WI) in the House and Sens. Ron Wyden (D-OR), Rob Portman (R-OH), Ben Nelson (D-NE) and Richard Burr (R-NC) in the Senate.

The legislation was a bipartisan solution to streamline the Medicare Secondary Payer (MSP) system, to ensure that seniors and persons with disabilities get timely assistance and taxpayers are repaid millions of dollars every year.

Subrogation issues are often difficult for me to wrap my head around. But, when I hear or read* Paul Stritmatter discuss it, I find it absolutely fascinating. It's also incredibly important for plaintiffs attorneys to understand, as subrogation issues are ever more frequent these days.

That said, Paul and Brad Moore, of SKWC flew out to Washington D.C. earlier this week, to attend the US Airways v McCutchen oral arguments. Here are Paul's thoughts/comment (also posted on his popular blog, FightSubro.com). 

Everyone can read the transcript and form their own opinions. However, I would like to add some comments because I was there for the argument. Also present were my partner Brad Moore and Mike Nelson who originally brought this issue to Public Justice to litigate in the Rose case. They may want to add comments.

J. Sotomayor showed the most knowledge of the record and so if I am correct, will be assigned the opinion if she has a majority.

1. CJ. Roberts is well known as a procedural stickler. He always looks for ways to dismiss cases for procedural reasons. (Read The Oath by Jeffrey Toobin. It is about the Obama administration v. the US Supreme court. Very well written and worth the time.Toobin explains how this is the way Roberts approached the defense of cases while in practice, and he does the same thing on the court.)  Roberts wants to dismiss the case on the basis that the Plan language was not before the court, only the filed summary document. I would bet he will file a concurring or dissenting opinion on that basis.  It is complicated factually. I think that since the Plan was suing based on its Plan, it should have filed it with the Complaint. In fact it never provided the Plan despite numerous requests until about 4 months before this argument.
2. The decision may well come down to the distinction between subrogation and a reimbursement lien. There were many questions on this distinction, and it seemed to form the primary differences between the parties.
3. Argument for the Plan was by the former Solicitor General, Neal Katyal.  He is very smooth, and very good. Our argument was by Matt Wessler, a staff attorney with Public Justice. He is a brilliant young lawyer, and acquitted himself well. I think he understood the issues better than Katyal, and better than the court.
4. Most of the questions, and most of the supportive indications, related to the application of the Common Fund Doctrine. This is of course the doctrine that says that the Plan must pay its proportionate share of attorney fees and costs.  To me, this is just another part of the equitable defenses that should be allowed, and you cannot separate it from the equitable defenses argument. However, the Solicitor General took exactly this position, ie. the common fund doctrine applies but equitable defenses do not. It is also consistent with what Judge Martinez did at the trial level in our Rose case.
5. J. Scalia was aggressive against us from the start. He seemed to take great delight in his questions which he thought made the day for the Plan. As far as he is concerned, the Plan language controls because that is what was agreed to.
6. My prediction (and remember, I am always an eternal optimist) is that Sotomayor, Breyer, Kennedy and Ginsberg are solidly with us.  Scalia and Roberts are solidly against us.  Both Kagan and Alioto seemed favorable early in the arguments, and then seemed against us later.  I am not sure about either one of them. And then Thomas. Did you read his question?  Did you miss it?  It was very significant. It is on one of the pages I am sure.  Oh wait, that’s right, Thomas hasn’t asked a question in 15 years or more. Who knows what he is thinking.  Since he always follows Scalia. I assume we lose him.
7. So my prediction is we win 6-3. But I am very concerned that we may only win the common fund argument, and not the equitable defenses argument. While that would certainly be a win for us, the equitable defense argument is the key to our claims, and I will be very, very disappointed if we lose that argument.
8. There is much more that could be said, but I will leave it at that for now.  

Paul: Thank you for sharing your insights and perspective. Look forward to SCOTUS' opinion, and seeing your predictions come true... 

*For an in-depth discussion in print, read Paul Stritmatter's booklet forthcoming soon as a Kindle publication.

When William ("Bill") Munich, a respected inventor and pilot, had found himself in a dispute with Marvin Ballsmider. Ballsmider was a drunk and deranged neighbor, who had routinely emptied his RV's septic tank on Mr. Munich's property.

One night in October 2005, Ballsmider hunted down Munich on Munich's property with a gun. Munich called 911, and stayed put in the only structure on his property.

That structure had three cars with keys in their ignition. But Bill stayed put only because of the 911 dispatcher's reassurances that local law enforcement was on its way. Unbeknownst to Bill, his call was prioritized not as an emergency, but as a "priority 2 weapons call." The dispatched car drove quietly without any sirens and only slightly over the speed limit. 

Hear the chilling 911 call from Bill Munich on this video from KING5 News.

Every minute mattered to Bill Munich, as he eagerly awaited local law enforcement's arrival. However, Ballsmider got to him first, shooting Bill execution style. Moments later, the police arrived. 

SKWC wrongful death attorneys, Kevin Coluccio, Ray Kahler and Paul Whelan, represent Munich's family. They are fighting to hold Skagit County accountable so that when life threatening, emergency calls are made--mishandled calls are not shrugged aside. In Munich's case, Skagit County denies any responsibility for the mishandled 911 call. Instead, the blame Ballsmider entirely.

As the Seattle Times reported, the the trial court and the appeals court declined to dismiss Munich's case, and the Supreme Court affirmed the decision (8-1 majority). When promising that help was on the way, the Court said that the 911 operator created a special relationship with Munich. The County had a duty to fulfill its promise.

SKWC's Brad J. Moore was recently elected Secretary of Public Justice Foundation, a national non-profit public interest law firm. Since he began his career as an attorney, Brad has spent countless hours as a volunteer for Public Justice. 

Brad is also the Foundation's State Coordinator for Washington State, making presentations about Public Justice's cases and mission. He explains, "Many of our cases don't result in a fee. We take some of the hardest cases where an important legal issue is unclear... We give those people a shot they would likely not get from a private firm."

The Public Justice Foundation challenges arbitration agreements (AT&T Mobility v. Concepcion), such as those hidden in boilerplate fine print on payday loans and credit card agreements with unconscionable interest rates and class action bans. It demands federal-level responsibility on behalf of inmates whose medical treatment is neglected, ignored, or refused by prison officials (Castaneda v. United States). The Foun­dation also aims to protect rights before and after they are violated, fighting against disparate treatment under Title IX (Flood v. Florida Gulf Coast University).

Because of top-notch representation, the Foundation has produced significant results. “The Foundation’s staff attorneys are literally a Who’s Who of civil rights, consumer protection and environmental lawyers from around the country. We have world-class litigators.”

Indeed, Public Justice is fortunate to have a litigator like Brad Moore as its Secretary.