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“Stuff That Bugs Us: Litigation Do’s and Don’ts”

“Stuff That Bugs Us: Litigation Do’s and Don’ts”. PANELISTS Toni Herwaldt – KRAFT FOODS GROUP, INC. (Risk Manager) Cindy Slubowski – ZURICH NORTH AMERICA (V.P. Head of Manufacturing) MODERATOR Heath Sherman – LEAHY, EISENBERG & FRAENKEL, LTD. (Equity Partner).

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“Stuff That Bugs Us: Litigation Do’s and Don’ts”

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  1. “Stuff That Bugs Us: Litigation Do’s and Don’ts”

  2. PANELISTS • Toni Herwaldt – KRAFT FOODS GROUP, INC. (Risk Manager) • Cindy Slubowski – ZURICH NORTH AMERICA (V.P. Head of Manufacturing) • MODERATOR • Heath Sherman – LEAHY, EISENBERG & FRAENKEL, LTD. (Equity Partner)

  3. What to Expect“It’s five o’clock … somewhere”- Jimmy Buffett

  4. Initial Claim Investigation • "The three great essentials to achieve anything worth while are, first, hard work; second, stick-to-itiveness; third, common sense." --Thomas Edison • 1. Don’t follow a script/outline of investigation – adjust to the facts; • Don’t treat an accident investigation as a static event; • Do consider surveillance (early and often); • Don’t get statements of every witness; • Do consider the early retention of experts; • Do investigate for potential subrogation.

  5. Retention of Outside Counsel • “Lawyers occasionally stumble over the truth, but most of them pick themselves up and hurry off as if nothing had happened.” • - Winston Churchill • Do retain an attorney with experience handling the particular issue; • 8. Don’t retain an attorney until you have met his/her associates; • 9. Don’t retain and attorney that tells you what you want to hear; • 10. Do retain an attorney who will follow your guidelines in a prompt manner.

  6. Medical Management • “Modern medicine is a negation of health. It isn't organized to serve human health, but only itself, as an institution. It makes more people sick than it heals” – Ivan Illich • 11. Don’t agree to everything the treating physician says; • Do understand medical marijuana; • Do consider nurse case managers, utilization review, IME’s, AMA impairment rating reports; • 14. Don’t spend money on management tools without adding value to the case; • 15. Do learn everything you can about the claimant’s medical history.

  7. Return to Work • “Don’t let what you cannot do interfere with what you can do.” – John Wooden • 16. Do develop a robust return to work program; • 17. Do understand the difference between value added/non-value added ; • 18. Do hire a vocational consultant with a positive track record and credible litigation history; • 19. Do have a strategy for handling undocumented workers, low wage earners and older workers.

  8. Case Resolution • “If I had known what it would be like to have it all - I might have been willing to settle for less.” – Lily Tomlin • 20. Don’t settle without a full analysis of trial exposure; • 21. Do ensure that your TPA/attorney provide an analysis of exposure that is objective and unbiased; • 22. Don’t discount your company’s reputation and brand in deciding to settle or try a case; • 23. Do obtain an analysis of jurisdiction, judge and opposing counsel.

  9. Third-Party Subrogation • "Blaming others is excusing yourself." - Robin Sharma • 24. Don’t forget to diary the statute of limitations for subrogation actions and investigate early. • 25. Don’t forget that small recoveries add up over time; • 26. Do develop a company philosophy that actively pursues subrogation; • 27. Do note that subrogation laws vary greatly by state.

  10. Federal Employment Laws • “If you don't win, you're going to be fired. If you do win, you've only put off the day you're going to be fired.” – Leo Durocher • 28. Don’t fire an employee for exercising rights under the Workers’ Compensation Act; • 29. Do inquire whether a voluntary resignation can be obtained at time of settlement; • 30. Do document all bases for firing and avoid the appearance of retaliation.

  11. Questions, Final Comments and Contact Information The information in this presentation was compiled from sources believed to be reliable for informational purposes only. All sample policies and procedures herein should serve as a guideline, which you can use to create your own policies and procedures. We trust that you will customize these samples to reflect your own operations and believe that these samples may serve as a helpful platform for this endeavor. Any and all information contained herein is not intended to constitute legal advice and accordingly, you should consult with your own attorneys when developing programs and policies. We do not guarantee the accuracy of this information or any results and further assume no liability in connection with this presentation and sample policies and procedures, including any information, methods or safety suggestions contained herein.

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