Carrier Permitted to Consolidate its APIP Subrogation Action With its Insured's Personal Injury Action

A court may, in its discretion, consolidate two lawsuits and have the two cases go before the same jury.  Under New York’s civil practice laws and rules, [1]  a judge may order consolidation where two lawsuits “involve[e] a common question of law or fact” and are pending before the same court.   Consolidation is “discretionary,” meaning the judge is not obligated to order two cases consolidated, but may do so if the circumstances warrant.

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Expert File Material May Have To Be Disclosed if Note Properly Protected

A New York mid-level appellate court recently ordered a law firm to turn over its expert’s reports and emails and letters with its experts. [1] 

First, some background.  The rules for how to litigate in New York state courts is set out in the Civil Practice Laws and Rules (“CPLR”).   CPLR 3101(a) states that there shall be “full disclosure” of all matter material and necessary in the prosecution or defense of an action.  There are certain narrow exceptions.  For example, CPLR 3101(d)(2) says that material “prepared in anticipation of litigation or trial” by a party, attorney of “consultant” for a party is protected – unless the party seeking disclosure can show that they have “substantial need” of the materials and is “unable without “undo hardship” to obtain the substantial equivalent of the materials by other means.

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New York Cannot Extinguish Medicare Provider’s Subrogation Lien

In 2009, New York enacted legislation in an attempt to limit the ability of medical care payors to recover payments they made to or on behalf of injured individuals (the legislation did not limit any recovery of property damage payments). The legislation prevented companies that held contractual (as opposed to statutory) liens from bringing subrogation actions.  The law provides, in part:  “Except  where there is  a statutory right of reimbursement, no party entering into [] a settlement [of a personal injury or wrongful death action] shall be subject to a subrogation claim or claim for reimbursement by a benefit provider and a benefit provider shall have no lien or right of subrogation or reimbursement against any such settling party...” [1]    Payment of additional first party benefits was excluded from this statute. The legislation was backed by personal injury attorneys who wanted to prevent medical care providers from obtaining a piece of personal injury settlements and awards.  The law became effective November 12, 1999.

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