8 Replies Latest reply: Jan 29, 2018 3:05 PM by Andrew Horn

Input Needed: Collateral Estoppel/Res Judicata Question

Joanne Andreotta
Visibility: Open to anyone

First case involving same patient/different provider I ruled against the Respondent on a staged accident defense.  Case No. 17-16-1042-8794.  My decision was appealed and affirmed by Master Peter Merani who referred to my award as lengthy and detailed.   In that award I do comment that there was no police report or SIU Affidavit and that there was no outline of the EUO testimony of the parties.  I nonetheless review the entirety of the transcripts and render a decision on the facts.   Fast forward.....second case with same patient, accident and Respondent appears on my calendar.   The provider is different.  5 days before the hearing, the Respondent serves a notice that it is bringing in the SIU investigator.  One day before the hearing, the police report is uploaded as well as a signed statement from the driver (which is incorrectly dated as having been written prior to the accident).   Question is:  1.  Do I allow these late submissions? and 2.  Are they  precluded from re-litigating the precise issue already ruled upon.  What would you do? TIA

  • Re: Input Needed: Collateral Estoppel/Res Judicata Question
    Melissa Melis

    Hi Joanne.

    I do not feel that collateral estoppel would apply since this party did not have a full and fair opportunity to litigate the issue.  Your prior decision was for a different medical provider.  I would allow the late submission and hear the case.  Also, if Applicant's attorney requests a continuance due to the short notice of the SIU testimony, I would grant it. IMHO

  • Re: Input Needed: Collateral Estoppel/Res Judicata Question
    Giovanna Tuttolomondo

    I would apply CE.  I think that what is dispositive is that the Respondent had a full and fair opportunity to argue the issues.  Granted, a particular insurer may diversify its counsel, there is diverse legal strategy and there may not have been access to resources, etc.  But at the end of the day, the Respondent in the first case chose to proceed in a particular way, may not have made applications for witnesses, had ample time to make its submission and ultimately, laid bare its proof and was afforded the opportunity to argue the case as it chose to and present all evidence and arguments.  To allow the insurance carrier to now come forward with different evidence would destroy the concept of estoppel and would allow a second bite at the apple and the opportunity to back pedal and rectify its mistakes.  The Respondent should be bound by CE, in my humble opinion.

  • Re: Input Needed: Collateral Estoppel/Res Judicata Question
    Giovanna Tuttolomondo

    I think under this scenario, there is even more reason to apply CE.  I also think that if either the firm or respondent tried to come up with an excuse, such an excuse is moot, as excuses do not factor into a CE analysis.  A determination was already made.  An appeal was already taken.  It is now law of the case.  Whatever could have been or may be, can no longer be a consideration.   They had every opportunity to put their best foot forward the first time.  What is it they say? First impressions are everything?

     

    There is a binding determination on an identical issue. Just my two humble cents, again:) Good luck.