class 3 Flashcards
paid v. billed: how does this impact future medical costs
if the court permits the D to use medicare or medical rates to determine future care, and a P is subsequently not eligible for these government funded plans, the future care award will then be insufficient to cover the future care costs as determined by the jury.
insurance coverage is an unknown factor, P may lose insurance or their insurance may not cover the treatment they need to rehabilitate from permanent injuries.
Discretionary awards of pre-judgement interest are permissible when:
there is a need to fully compensate the wronged party for actual damages suffered
it goes beyond what is allowed in the statute or the public policy supports denying it
the P is responsible for the delay in recovery
the D acted innocently and had no reason to know their conduct was wrongful or there is a good faith dispute between the parties as to liability.
the remedial purpose of the statute involved
other general principles as are deemed relevant by the court.
what damages are subject to reduction to present cash value?
future economic harm
what damages are NOT subject to reduction to present cash value
non-economic (general) damages like emotional harm or pain and suffering
damages for losses already incurred (lost wages, medical bills)
Total offset method
interest and inflation offset each other
no need to reduce to present value- just give the images award
usually applied to wages
damage awards for future damages are subject to reduction because
the P is getting the money now- can invest it and have it be worth more later.
injunctions
equitable remedy- judge not the jury
specific relief- not substitutionary, P cannot be made whole with money
goal is to prevent irreparable damage
usually used to stop harms that will/are reasonably certain to occur into the future
sole remedy or can be combined with legal remedies
mandatory or prohibitory
permanent or temporary
equitable remedies
non-monetary solution
place the P in the fairest position
mandatory injunction
hard to get because hard to enforce- requires the subject of the injunction to do something
prohibitory injunction
requires the subject of the injunction to not do something- easier to enforce
provisional/temporary/short term injunction
issued before trial or appeal to provide relief before final relief can be adjudicated- stopgap to prevent harm from occurring until the court determines who wins the lawsuit
purpose is to preserve the status quo pending a full evaluation of the merits
they do NOT provide the final relief
bonds may be required
type of short term injunctions
TRO, preliminary injunction, stay or injunction pending appeal
temporary restraining order
before hearing on the prelim injunction but only up to 14 days with one extension without consent
prelim injunction
after hearing on the prelim but before trial/resolution of the merits of the case
goal to maintain the status quo
an extraordinary remedy because taking away rights without a full trial on the merits.
stay or injunction pending appeal
between the court order and the decision on appeal
process of prelim injunction
complaint must be filed first or at the same time as notice (telling the other side) and motion (filling with the court)
hearing, decision and appeal
considerations when deciding whether to grant a prelim injunction
do we want to do this remedy
what happens if we do
what happens if we don’t
how can we have the least amount of harm before a permanent injunction or full resolution of the merits
how can we best maintain the status quo
traditional test for prelim injunction
- likelihood of success on the merits on underlying cause of action
- likelihood of irreparable harm in the absence of injunction
- balancing the hardships- prove you are more at risk than the D
- public interest-
likelihood of success on the merits
because a preliminary injunction is a drastic remedy, courts will not grant one unless there is a likelihood or a substantial likelihood that the moving party will win on the merits of the case once the merits are fully heard.
(more likely than not, the P will win)
this decision is based on the facts and law presented at the hearing on the preliminary injunction
likelihood of irreparable harm
can money fix it or can it be repaired?
Is an injunction necessary to repair the injury or are there available legal remedies that are adequate?
two considerations:
1. nature of the injury is one for which courts will not require the P to wait to accept money damages or money damages will not be available and
2. the timing of the injury will likely occur before the next opportunity for the court to hear a filer presentation of the case.
Premanent injunction: after irreparable harm and success on the merits has been shown
the balance of hardship inquiries starts with the presumption that because the P has succeeded on the merits and demonstrated irreparable harm, the P is entitled to the junction
balance of hardships
presumption can be balanced with other interests to see if injunction is the proper remedy. this looks at the nature of the P interest and the policy considerations that attach to protecting that interest and deterring or encouraging the D conduct.
Where will the least amount of irreparable injury occur before a full evaluation of the merits of the case? look at both parties- the
the benefit to the P has to be greater (in any mount) than the harm to the D
public interest
frequently part of balancing
the goal of this element is to look for instances where a court would find the public interest to weigh against the injunction remedy for P
this is not really an issue for private disputes
sliding scale prelim test
a more flexible approach
looks at the same elements but not all have to be established
a greater showing on one element can make up for a lower showing on another of the elements.
Sometimes awaking relief based on a lower likelihood of irreparable harm even when the likelihood of success if very high or if the likelihood of irreparable harm strongly tips in favor of the party seeking the injunction or serious questions are raised on the merits and the balance of hardships tips sharply in favor of the moving party.
TRO process
complaint and motion
hearing
decision
motion to dissolve
appeal
TRO’s
may be granted when the irreparable harm to the P will occur even before a hearing on a preliminary injunction can be held.
the TRO lasts only until the hearing on a preliminary injunction, usually no more than 14 days. it is a placeholder to preserve the status quo between the filling of the lawsuit and the hearing on a preliminary injunction request.
because the need for relief is immediate, the order can be issued without a hearing.
ex parte TRO’s
extreme- there is not time to give the D notice that the P is seeking a TRO or giving notice would result in irreparable harm. more precautions are in place to adequately balance the constitutional rights of one party and the irreparable harm to the other.
Only granted in extraordinary circumstances that necessitates prompt action without a hearing.
most commonly used in domestic violence or harassment or fraudulent business practices with concern for destruction of evidence or assets.
Ex parte TRO test
the TRO is needed right now or there is a reason to not provide notice- make matters worse or increase the risk of harm/destruction- the irreparable harm will occur if notice is given (usually some kind of criminal behavior).
due process:
1. participation by a judicial officer;
2. a prompt post-deprivation hearing;
3. verified petitions or affidavits containing detailed allegations based on personal knowledge; and
4. risk of immediate and irreparable harm
