NYS Legislature Passes Legislation Limiting Health Insurer Subrogation

Before leaving Albany June 21, both houses of the New York State Legislature passed legislation that would eliminate the ability of health insurers to pursue subrogation recovery by asserting a lien or otherwise claiming proceeds of a personal injury or wrongful death settlement.  The legislation is limited to health insurers and does not affect the ability of property insurers or others to recover.

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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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