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30 Apr, 2013

The 2013 Construction Project Management Survey by Software Advice is Complete

By |2018-04-23T23:55:18+00:00April 30th, 2013|Construction Contractor Advisor, Construction Software|

For those of you that participated in the Project Management Software Survey from Software Advice -- a construction software reviews site -- the results are in.  The Software Survey showed that 94% of participants rely on some kind of tracking software to manage their projects. Interestingly, the Survey showed that those contractors that used specialized software platforms, instead of homegrown software, had the best track record for delivering projects on time [...]

30 Apr, 2013

Hospital Policies: Will They be a Burden or a Benefit to You in Litigation?

By |2018-04-24T00:10:53+00:00April 30th, 2013|Health Care Law, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management|

Hospital policies are adopted for the purpose of providing a safe environment and quality care to patients.  They are also adopted as a means of preventing liability.  It is becoming increasingly common, however, for policies to be used against health care facilities and providers when litigation arises.  By applying a literal interpretation to a policy that does not provide any flexibility in its terms, the plaintiff is able to argue [...]

29 Apr, 2013

Defense Verdict Affirmed on Appeal

By |2018-07-11T18:17:17+00:00April 29th, 2013|Latest News, News|

LDM attorneys Mark Novotny, John Walker and Sarah Macdissi recently obtained a ruling from the Nebraska Supreme Court affirming a dismissal of the plaintiff's complaint against a Physical Therapy clinic based on the plaintiff's failure to timely file her lawsuit.  In Churchill v. Columbus Community Hospital, the Court agreed that Physical Therapists are professionals, and that the patient's fall in exiting an aquatic therapy pool, after being evaluated by her [...]

26 Apr, 2013

The Debate Over Work Hour Restrictions for Doctors in Training

By |2018-04-23T23:52:20+00:00April 26th, 2013|Health Care Law, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management|

Time magazine recently published an article highlighting the controversy surrounding work hour restrictions placed upon doctors in training.  Work hour restrictions were initially enacted by the state of New York in 1987 in response to the death of an 18 year old female, caused by a medication prescribing error made by a resident in the middle of a 30 hour work shift.   As a result of the 18 year old’s death, [...]

25 Apr, 2013

Subcontracts Are Another Tool in your Toolbox

By |2018-04-23T23:55:18+00:00April 25th, 2013|Construction Contractor Advisor, Subcontractor|

Every contractor has a form subcontract. But, how long has it been since you reviewed your form? Has it been cobbled together over the past few years? Like the tools in your toolbox, maybe it’s time to review your subcontractor agreement to see if it still works. Subcontracts can range from a single page to several pages and can include any number of clauses.   Here are some clauses that [...]

23 Apr, 2013

Employment Related Bills Considered by the Nebraska Legislature

By |2018-04-23T23:55:18+00:00April 23rd, 2013|Construction Contractor Advisor, Legislation|

As the Nebraska legislature winds down its Spring session, a few bills related to employment are still being considered. They are: LB58 – Senator Tyson Larson of O’Neill introduced a bill prohibiting Nebraska employers from requesting or requiring employees/applicants to provide account information and passwords which would allow employers access to employee’s/applicant’s private social networking profiles, such as Facebook. LB177 - Senator Jim Smith of Papillion seeks to expand the [...]

19 Apr, 2013

Estate Tax Uncertainty Continues

By |2018-07-11T18:17:17+00:00April 19th, 2013|Latest News, News|

President Obama's new budget seeks an increase in estate taxes. Although the ink is barely dry on the American Taxpayer Relief Act of 2012 (the "2012 Tax Act") which became effective in January of 2013, President Obama's new budget includes a proposed increase to estate and gift taxes.  Under current law, which was enacted as part of the "Fiscal Cliff" negotiations, estates are subject to a 40% tax on values [...]

18 Apr, 2013

Mark Novotny and Denise Destache Speak on Preparing Physicians in Risk Management

By |2018-07-11T18:17:17+00:00April 18th, 2013|Latest News, News|

Partners Mark Novotny and Denise Destache recently participated in the dinner and presentation to 86 medical residents from the University of Nebraska Medical Center discussing issues of Nebraska state licensure investigations, prescription of controlled substances and documentation.  The presentation was in conjunction with attempts to prepare physicians in the area of risk management.

18 Apr, 2013

Highway Construction Pay-to-Play Scheme in Pennsylvania

By |2018-04-23T23:55:18+00:00April 18th, 2013|Bid Rigging, Construction Contractor Advisor|

State politicians and members of the Pennsylvania Turnpike Commission have been charged with violating state ethics laws and criminal conspiracy by awarding contracts to vendors that contributed to particular state politicians. According to recently filed criminal charges, the Turnpike Commission’s chief received direction from a State Senator or his chief of staff as to which contractors would be awarded Turnpike contracts. The Senator also directed political fundraising efforts of Turnpike [...]

17 Apr, 2013

Agricultural Law Pt. IV: Touchdown in Taiwan

By |2018-04-23T18:22:22+00:00April 17th, 2013|Construction Contractor Advisor, Midwest Agricultural Law|

The group touched down late in Taipei, Taiwan to start the last leg of the LEAD 31 International Seminar.  The following four days was a whirlwind of experiencing the culture, politics and economy of the East Asian state otherwise known as the Republic of China. Chiang Kai-Shek Memorial To understand Taiwan, one must understand the split between the Republic of China (Taiwan) and the People's Republic of China (China).  Therefore, our first stop was [...]

16 Apr, 2013

An RFP Is Not an Offer to Contract

By |2018-04-23T23:55:18+00:00April 16th, 2013|Construction Contractor Advisor, Construction Contracts|

If a general contractor uses your estimate in response to an RFP, has the general contractor promised to hire you? A recent Missouri Court of Appeals decision says no because an RFP is not an offer to contract, but an offer to receive proposals for a contract. In Jamison Electric, LLC v. Dave Orf, Inc.,  Jamison submitted a bid to general contractor Orf in support of an RFP issued by [...]

16 Apr, 2013

Nebraska’s Good Samaritan Law and the Duty to Rescue

By |2018-04-23T23:52:20+00:00April 16th, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor|

Does anyone remember the last episode from Seinfeld where Jerry, Elaine, George and Kramer end up in jail for failing to help an individual being held up at gunpoint? The arresting police officer cites the town’s “Good Samaritan” law as grounds for the arrest, which purports to impose upon citizens a duty to rescue. Unlike this fictionalized episode from Seinfeld, laws generally do not impose a duty to rescue.  In [...]

15 Apr, 2013


By |2018-04-23T20:59:44+00:00April 15th, 2013|Midwest Insurance Law Guide|

The language in a typical additional insured endorsement often narrows coverage to an amount equal to or less than the amount specified in the contract between the Named Insured and Additional Insured.  An example of this language can be found in the new 2013 ISO form endorsements.  New wording states that coverage to be afforded to the additional insured will not be broader than the underlying third-party agreement requires.  It also states that the coverage limit [...]

12 Apr, 2013

Venue Clauses–Are they Enforceable in Your Jurisdiction?

By |2018-04-23T23:55:18+00:00April 12th, 2013|Construction Contractor Advisor, Construction Contracts|

I've had a few clients ask about the enforceability of venue clauses, those pesky provisions that attempt to dictate where a lawsuit relating to the project must be brought.  As is often the case, the answer depends on the state in which the project is located.  For some variety, I reached out to some fellow construction attorneys around the country for their thoughts and I've provided their comments below.  As [...]

12 Apr, 2013

Nevada’s Runaway Jury

By |2018-04-23T23:57:56+00:00April 12th, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Tort Reform|

A Nevada jury says the state’s largest health management organization is liable for $24 million in compensatory damages to three plaintiffs in a negligence lawsuit stemming from a hepatitis C outbreak that became public in 2008. That was not all.  Unlike Nebraska, Nevada allows punitive damages.  The plaintiffs’ lawyer asked the jury to hold Health Plan of Nevada and Sierra Health Services responsible for another $1 billion in punitive damages [...]

11 Apr, 2013

Bright Prospect for Midlands Law School Graduates

By |2018-07-11T18:17:17+00:00April 11th, 2013|Latest News, News|

Law school graduates in the Midlands have a brighter prospect of being hired than those on the coasts. Admission to law schools for the fall, has decreased nationally. In a recent article in the Omaha World Herald, partner Brian Brislen relates that new graduate hires, at the firm has actually increased this year compared to the previous two. Competition for these positions has grown with the increase in the number [...]

11 Apr, 2013

LDM Successfully Defends University in Disability Discrimination Case

By |2018-07-11T18:17:17+00:00April 11th, 2013|Latest News, News|

LDM attorneys Craig Martin and Jason Grams convinced a jury that their client, a local university, did not discriminate against one of its students.  The student alleged that he was removed from the Nursing Program because of his disability.  The university disagreed, asserting that the student was removed from the Nursing Program because he failed to meet the expectations of a senior nursing student. The trial took four days to [...]

11 Apr, 2013

Werner v. Platte County (Part II): Don’t Get Too Excited About the Excited Utterance Hearsay Exception

By |2018-04-23T20:50:32+00:00April 11th, 2013|Appellate Work, Cross Examination, Direct/Redirect Examination, Discovery, Litigation Tips, Nebraska Litigation & Trial Advisor, Trial, Witness Preparation|

   LDM Partner Cathy Trent-Vilim continues her discussion of her recent case in this post. You read in Part I of Werner v. Platte County how the Nebraska Supreme Court affirmed the trial court’s ruling that statements by Mr. Werner made to the EMT while at the scene of the accident qualified for the excited utterance exception to the hearsay rule.  The purpose of this post is to discuss why [...]

9 Apr, 2013

Framing Contractor Indicted for Hiring Undocumented Workers

By |2018-04-23T23:55:18+00:00April 9th, 2013|Construction Contractor Advisor, Employee Eligibility|

A few days ago, the owners and managers of Advantage Framing were indicted for hiring undocumented laborers. While this practice is nothing new, the size of Advantage Framing’s scheme makes it news worthy. According to news accounts, Advantage had 25-30 crews of 6 laborers working in the field and none of the laborers had work authorization paperwork. Advantage would pay the crew foreman with a check and he would in [...]

9 Apr, 2013

Werner v. Platte County (Part I): Get Excited About the Excited Utterance Hearsay Exception

By |2018-04-23T20:50:32+00:00April 9th, 2013|Appellate Work, Direct/Redirect Examination, Discovery, Litigation Tips, Nebraska Litigation & Trial Advisor, Trial, Witness Preparation|

LDM attorneys Cathy Trent-Vilim and Bill Lamson recently received a decision from the Nebraska Supreme Court affirming the maximum $1 million judgment obtained on behalf of Brian Werner in a suit against Platte County, Nebraska, arising from injuries Mr. Werner suffered while a passenger in a vehicle being pursued by a Platte County deputy. LDM Partner Cathy Trent-Vilim  discusses her recent case in this post. In appealing the judgment, Platte County [...]

9 Apr, 2013

Five Do’s and Don’ts of Deposition Preparation

By |2018-04-24T00:10:06+00:00April 9th, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor|

Giving a deposition is a form of communication that is usually completely foreign to health care providers.  The surgeon who is in complete control of her operating suite may find herself utterly lost in a conference room surrounded by attorneys.  Some physicians become old hands at giving depositions, but for newcomers to the arena, emphasizing a few do’s and don’ts can make the process easier: DO Spend the time it [...]

5 Apr, 2013

NEW RAILROAD PROTECTIVE COVERAGE – Relating to Fuel & Lubricant Losses

By |2018-04-23T20:59:44+00:00April 5th, 2013|Midwest Insurance Law Guide, Railroad environmental and pollution coverage, Railroad protective insurance coverage|

ISO has recommend changes to certain of its insurance forms effective April 2013.  Form CG 00 35 04 13 addresses Railroad Protective Liability Coverage.  The new change includes broader language for losses relating to fuels and lubricants. Any railroad requesting Protective Liability coverage should consider using this new form - in lieu of the old one.     In the old version, last revised in 2000, a standard ISO Railroad Protective Liability Policy [...]

5 Apr, 2013

Understanding Physician Liability Under Nebraska’s So Called “Captain of the Ship” Doctrine

By |2018-04-23T23:52:20+00:00April 5th, 2013|Midwest Medical Legal Advisor|

With all of the recent cruise ship debacles, I was reminded of a doctrine often applied in malpractice cases informally referred to as the "Captain of the Ship" doctrine.  This doctrine suggests that a surgeon has the ultimate responsibility for the care of the patient, and has a non-delegable duty to ensure that proper care is given while in the operating room.  Simply put, the physician is the captain of the ship during the operation being performed [...]

4 Apr, 2013

Watch Your Deadlines When Filing Construction Liens

By |2018-04-23T23:55:18+00:00April 4th, 2013|Construction Contractor Advisor, Construction Lien|

I do not like flirting with deadlines. If the deadline is Wednesday, I like to get it done on Tuesday. When filing a construction lien, it is always better to file a few days before the deadline or you may suffer the same fate as this Montana contractor. In Total Industrial Plant Services, Inc. v. Turner Industries Group, LLC, the Montana Supreme Court was asked to analyze whether Total Industrial [...]

3 Apr, 2013

Insurance Road Kill

By |2018-04-23T20:59:44+00:00April 3rd, 2013|Auto coverage, Midwest Insurance Law Guide|

I spent a part of this weekend holiday hiking in the northern Ozarks down near the Missouri/Arkansas border.  The variegated mountains with cedar trees and broad shale rock ledges are captivating.  The highlight of my back country trip was the presence of two massive turkey vultures that I encountered in the middle of a gravel road as I rounded a steep bend.   Like roaches and spiders, a vulture’s functional design [...]

3 Apr, 2013

Independent Medical Examinations

By |2018-04-23T23:57:56+00:00April 3rd, 2013|Litigation Tips, Midwest Medical Legal Advisor|

Independent medical examinations are a “hands on” way to evaluate the injuries claimed by a plaintiff.  With the ability (with some limits) of hand-picking the examiner, an IME is a great way to strengthen the defense of a given case. When a plaintiff has placed his medical condition in controversy, and the defending party has good cause, an independent medical examination of the claimant should be allowed. According to Rule [...]

2 Apr, 2013

The Importance of Requesting Payment According to the Contract

By |2018-04-23T23:55:18+00:00April 2nd, 2013|Breach of Contract, Construction Contractor Advisor|

A recent case out of Georgia highlights the importance for subcontractors to follow the contract terms when submitting a payment. In SCI, Inc. v. Engineered Concepts, Inc., a subcontractor sought additional compensation of $300,000.00. The upstream contractor agreed that the $300,000.00 was owed, but refused to disburse that amount to the subcontractor, claiming that the subcontractor failed to satisfy the contractual terms for requesting payment. Not surprisingly, the case went [...]