Litigation Blog

Texas Supreme Court Clarifies Medical Billing Affidavit Procedure

Chapter 18 of the Texas Civil Practice and Remedies Code (“CPRC”), which creates a procedure for tort plaintiffs to prove past medical expenses by affidavit and without the need for live expert testimony at trial, has long been the focus of controversy as to its scope and effect. The statute, which the Texas Supreme Court describes as “a purely procedural statute that is designed to streamline proof of the reasonableness and necessity of medical expenses.”[1], has been turned into a weapon against defendants, with many intermediate courts holding that a defendant’s failure to satisfy the statute’s requirements for a counter-affidavit meant that a defendant could not contest the cost or necessity of treatment at trial. On May 7, 2021, the Texas Supreme Court put an end to this extreme court-created penalty for non-compliance with the statute’s procedural details. More »

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EMAIL TAGS: Insurance Coverage, Transportation

CUBI: Everything You Need to Know About Texas' Biometric Law and Beyond...

As companies continue to take advantage of developing technologies involving the use of biometric information, it is crucial that businesses and legal practitioners alike stay informed of the legal and compliance concerns associated with the use of such information. For instance, companies conducting business in Texas should be aware of Capture of Use of Biometric Identifiers Act (“CUBI”) (Tex. Bus. & Com. Code §503.001). Passed in 2009, CUBI regulates biometric identifiers that are used for a “commercial purpose.” While “commercial purpose” is not itself defined by CUBI and Texas courts have yet to meaningfully interpret that phrase, Texas courts have construed the term “commercial purpose” broadly, in other contexts when no definition is available (see e.g., Texas’ Product Liability Act, Tex. Bus. & Com. Code §503.001, et al.).  CUBI related concerns have created a buzz around employers’ use of kiosks and other devices for contact-tracing and other reasons, as practitioners believe that any collection of biometric identifiers for this purpose will likely fall within CUBI’s restrictions.  Importantly, while CUBI does not itself authorize a private cause of action, the Texas Attorney General is empowered to pursue violators who are subject to a penalty of up to $25,000 per violation. More »

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EMAIL TAGS: Cyber Risk & Liability

Now That Vaccine Distribution Has Begun, What Issues Do Employers Face?

Over the course of 2020, American employers have been diligently working to navigate through many workplace issues caused by COVID-19. With the pandemic’s end finally in sight thanks to the recent FDA approval of the Pfizer and ModernaCOVID-19 vaccines, those same employers now must start preparing for critical questions that come with the availability of a vaccine.

Can Employers Require Employee Vaccination?

Generally, private employers can mandate employee vaccination for the benefit of the business, other employees, or customers.[1] A private employer may have a duty to require vaccinations depending upon several factors, including employee/customer interaction, vulnerability of employees and customers, and the workplace environment. More »

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TRANSPORTATION LAW CLIENT ALERT: The Supreme Court’s Decision in New Prime v. Oliveira

Transportation companies frequently rely on independent contractor agreements with owner-operators to conduct many essential logistics operations. “Owner-operators” are self-employed and independently contract with large companies to haul goods across the country. This relationship can produce disputes between the owner-operator and transportation company. For example, when a load is not delivered on time or goods are damaged in the delivery process, transportation companies may seek to hold the owner-operator liable. In anticipation of these disputes, owner-operators almost routinely sign arbitration agreements as a part of their independent contractor agreements with transportation companies. However, when the issues between transportation companies and owner-operators pertain to wage and hour claims or other employment concerns, the recent Supreme Court decision in New Prime v Oliveira may have them changing course. More »

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EMAIL TAGS: Employment Litigation & Counseling, Transportation

EMPLOYMENT LAW CLIENT ALERT: Tenth Circuit Rules Failure to File Discrimination Claim with EEOC No Longer Jurisdictional Bar

In a surprising decision overturning 40 years of precedent, the Tenth Circuit recently ruled that a plaintiff’s failure to file a claim with the Equal Employment Opportunity Commission (“EEOC”) was not a jurisdictional bar to a federal court adjudicating an employment discrimination claim. Lincoln v BNSF Railway Company, --- F3d --- (10^th Cir. August 17, 2018). More »

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EMAIL TAGS: Discrimination, Harassment & Hostile Workplace Claims, Employment Litigation & Counseling

EMPLOYMENT LAW: Can Employers Really Take a Deep Breath in the Wake of Epic Systems Corp. v. Lewis?

Overview

Earlier this year, the Supreme Court of the United States upheld the enforceability of individualized arbitration agreements as a matter of law in Epic Systems Corp. v. Lewis. The decision left employers everywhere taking a collective and long-sought sigh of relief. But how protected are employers, really? More »

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EMAIL TAGS: Class Action, Employment Litigation & Counseling