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November 2021


Sorry, wrong person

Workers’ comp defense lawyer, secretly coaching his witness during deposition
with text messages, mistakenly sends texts to opposing counsel

A workers’ compensation defense lawyer was suspended from the practice of law this month after  covertly coaching an adjuster with text messages during her deposition and then lying about his actions to his opposing counsel. His misconduct came to light when he inadvertently sent to the opposing counsel some of the texts that were intended for the adjuster. 

Derek Vason James, an Orlando-area lawyer, was suspended for 91 days by the Supreme Court of Florida because of his misconduct during the deposition. 

The adjuster – James’ client – was being deposed by telephone, and she, James, and the Claimant’s counsel were in three different locations. While the adjuster was testifying in response to questions from James, she and James exchanged text messages. They included the following exchanges:

    10:12 a.m.    (James to adjuster) Your doing great she is just trying to rattle You with objections

    10:12 a.m.     (Adjuster to James) (Emoji face with tongue stuck out)

When the Claimant’s counsel began questioning the adjuster, James sent texts to the adjuster to coach her answers. They included the following suggestions from him to her:

    10:19 a.m.    You don’t

    10:20 a.m.    As to settlement checks expiration

    10:20 a.m.     You remember the deposition but not discussing checks

    10:20 a.m.    yes

    10:21 a.m.    Just review notes from 2/20/2018 forward

    10:23 a.m.    Be careful just say

    10:23 a.m.    You may not see today

At some point, the Claimant’s counsel heard typing sounds, and she asked James if he and the adjuster were texting. James denied texting the adjuster and claimed that he was receiving a text message from his daughter. The Claimant’s counsel asked James to stop texting and put his phone away and James agreed. 

After a break, and after the Claimant’s counsel resumed her questioning of the adjuster, the Claimant’s counsel received text messages from James which he had intended to send to the adjuster. They included the following instructions:
    11:55 a.m.     Don’t give an absolute answer

    11:55 a.m.    It’s a trap

    11:56 a.m.    Then say that is my best answer at this time

When the Claimant’s counsel noticed the texts from James on her own phone, she stopped the deposition and filed a motion for production of all texts sent during the deposition. James produced two pages of  text messages but never produced any texts involving his daughter, despite being ordered to so do by the Judge of Compensation Claims and despite his assurances to the Claimant’s counsel during the deposition that the typing sounds she heard involved a text from his daughter. 

Copyright 2021, Stone Loughlin & Swanson, LLP 

More bad actors:
Placing a  thumb on the scale of justice 

A federal judge in Ohio is the focus of an editorial in the Wall Street Journal this month, which criticizes him for ham-fisted rulings in pharmacy litigation. Cleveland-based federal Judge Dan Polster is presiding over a trial in which two Ohio counties are seeking to hold pharmacy chains CVS, Walgreens, and Walmart liable for the opioid epidemic.  The counties allege the pharmacies ignored red flags when they filled opioid prescriptions and caused a “public nuisance.” The trial is the first of some 3,000  suits brought by municipalities against companies in the pharmaceutical supply chain. 

The plaintiffs’ theory of liability is - ahem - novel, to say the least. The pharmacies filled legal prescriptions for a legal substance written by licensed physicians for actual patients. But the plaintiffs allege the pharmacies should have known that doctors were filling out too many prescriptions and should have been skeptical of even legal prescriptions above some undefined “red line.” 

The pharmacies counter, in part, that they lacked legal grounds to refuse to fill prescriptions. In many states they must fill prescriptions if the prescribing doctor has a valid license and is registered with the U.S. Drug Enforcement Administration. And state medical and pharmacy boards have threatened  to discipline pharmacists who refused to fill opioid prescriptions. 

According to the editorial in the Journal, Judge Polster has allowed the plaintiffs’ theory to proceed and has pressured the pharmacies at every turn to settle. It says he also has watered down the rules of evidence to benefit the plaintiffs, allowing them to argue that all they need is “aggregate proof” that  “too many” prescriptions were filled, rather than evidence of specific prescriptions that were improperly filled. 

Copyright 2021, Stone Loughlin & Swanson, LLP

Who shoulders the burden? 

The Texas Department of Insurance, Division of Workers’ Compensation is seeking input for a Shoulder Surgery Plan-Based Audit. The audit will evaluate the propriety of performing acromioplasty or distal clavicle resection procedures as part of a shoulder rotator cuff repair, including the appropriate recordkeeping of those procedures. 

The audit may have been prompted by mounting evidence-based medicine suggesting that distal clavicle resection is not routinely indicated with arthroscopic rotator cuff repair. See, for example, Benefits of distal clavicle resection during rotator cuff repair: Prospective randomized single-blind study, Orthopaedics & Traumatology: Surgery and Research, December 2020. The authors of that study concluded that “we do not recommend doing routine DCR with arthroscopic rotator cuff repair.” 

In light of this mounting evidence, one wonders whether an impairment rating for a torn rotator cuff should include a 10% upper extremity impairment for distal clavicle resection as DWC ALJs and the Appeals Panel often conclude. 

System participants can submit comments to DWC by email addressed to by 12/03/21. 

Copyright 2021, Stone Loughlin & Swanson, LLP 

A rose by any other name . . . 

Readers will recall that we reported our disappointment last month over an 11th hour call from the Division notifying us that our CCH was being reset due to the unavailability of a judge to hear the case. We asked that a traveling ALJ be sent in to cover the hearing but were advised the Division no longer has traveling ALJs. 

Following publication of our October article, a Division source contacted us to say that the Division does indeed have traveling ALJs. Based on that conversation, it appears the misunderstanding may have been one of terminology.  

When referring to traveling ALJs in the October article, we were using the term as it has been used historically, i.e. a traveling ALJ was a judge with no permanent assigned docket rotation, usually headquartered in the Austin Central Office, who can travel on short notice whenever and wherever his or her presence is required to hear a case for an assigned judge who might be ill or on vacation. The traveling judge could also be used to hear additional CCHs to lessen the caseload in a particular field office or to hear cases in field offices with temporary ALJ vacancies.  

Currently, however, it appears the term traveling ALJ refers to those judges assigned to a particular field office but whose regular docket rotation includes hearing cases on certain weeks in other field offices in which no ALJ is headquartered. This has long been a practice of the Division to best utilize resources. They just were not heretofore referred to as traveling judges. 

The Division source who contacted us in response to our October article also advised that the Division has one ALJ headquartered in the central office who is available to travel. This is good news and hopefully that ALJ can be called in to hear future cases that would otherwise have to be continued due to the assigned ALJ's unavailability. 

DWC wallops FedEx with $33,000 penalty

Call us weird, but in our spare time we like to browse through disciplinary orders on the DWC website. One recent entry caught our eye – in a Consent Order dated November 4, FedEx Ground Package System, Inc., a certified self-insured employer, agreed to pay an administrative penalty of $33,000.

What did it do wrong, you ask? It underpaid DIBs in one claim. Granted, it underpaid those DIBs for a period of 248 weeks, but still . . . it was one claim. You can review Consent Order #2021-7043 at

One of FedEx’s current taglines is “We Live To Deliver.” 


Please reply back and let us know what you think.

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