In reading through the July 23, 2008, release of published opinions by the U.S. Fifth Circuit, I am struck by the outcome of Poliner v. Texas Health Systems. Putting aside the merits of the decision, regarding immunity under the Health Care Quality Improvement Act, and just looking at the outcome, there is a $200 million jury verdict, reduced to $33 million on remittitur, and then to zero by the Fifth Circuit on appeal. Makes me wonder two things: (1) What was the highest settlement offer rejected by the plaintiff, and (2) did the trial counsel bring in anyone with an appellate focus to assist in defending the verdict or the reduced judgment on appeal? Of course, I have put the merits aside in asking these questions, and it may be possible that the HCQIA immunity holding was a foregone conclusion that no amount of appellate skill could cure, but it is a striking outcome nonetheless.
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