Roger Baron

Roger Baron
Alma mater	University of Missouri School of Law
Occupation	Professor, University of South Dakota School of Law
Website	erisawithprofessorbaron.com/

Professor Roger Baron, an ERISA Subrogation and Reimbursement Expert, has been teaching at the University of South Dakota School of Law since 1990. He has become a recognized advocate for the rights of ERISA participants and beneficiaries in connection with the aggressive pursuit of ERISA reimbursement (subrogation) claims which came into vogue in the 1990s. ERISA reimbursement claims are filed by ERISA plans and their insurers, seeking a return of money spent on medical claims paid as part of health insurance coverage. These claims are pursued on a “first dollar priority” basis and often consume the all or most of tort recovery secured by the ERISA participant/beneficiary, leaving the person penniless. Professor Baron is a 1976 graduate of the University of Missouri at Columbia School of Law. He practiced law in Missouri for nine years before beginning his teaching career at South Texas College of Law in 1985. He is licensed to practice law in Missouri, Texas and South Dakota. His writings on ERISA Reimbursement and subrogation have been cited in written opinions by Federal Courts in Nebraska, Illinois, New Jersey, and Washington. In addition to the subjects of Subrogation and ERISA Reimbursement, Professor Baron has also authored numerous other law review articles on the topics of Insurance, Civil Procedure and Family Law. Professor Baron’s other non-ERISA law review articles have been cited and quoted with approval by state supreme courts and appellate courts in Alabama, Arkansas, California, Michigan, Missouri, New Jersey, North Carolina, North Dakota, Puerto Rico, South Dakota, Texas, Washington, West Virginia, Wisconsin, and Wyoming. Professor Baron was named the recipient of the John Wesley Jackson Outstanding Faculty Award in 1995 and again in 2008. This is an award given to a law professor at the University of South Dakota who demonstrates excellence in teaching.^[1][2]

ERISA Reimbursement and Subrogation Articles Written By Professor Baron

• Public Policy Considerations Warranting Denial of Reimbursement to ERISA Plans, 55 Mercer Law Review 595 (2004).^[3][4][5]
• Subrogation: A Pandora’s Box Awaiting Closure, 41 South Dakota Law Review 237 (1996).^[6][7][8]
• Subrogation on Medical Expense Claims: The “Double Recovery” Myth and the Feasibility of Anti-Subrogation Laws, 96 Dickinson Law Review 581 (1992).^[9][10]
• Eight Ways to Defeat or Minimize ERISA Reimbursement Claims (2007), published in Trial Lawyer Journals in Nevada, South Dakota, Ohio, Georgia, Texas, New Mexico, Arizona, Nebraska, South Carolina, Wisconsin, Montana, Florida, and Arkansas.^[11]
• Service of a ‘Proper Request’ upon the Plan Administrator: a Key Step in Defending against ERISA Reimbursement Claims (2010), published in Trial Lawyer Journals in Massachusetts, Pennsylvania (Western Pa. Trial Lawyers “The Advocate” and Pa. Association for Justice “PA Justice New”), Ohio, South Dakota, Nebraska, Louisiana, Kansas, Colorado, Washington, Texas, Michigan, Utah and Vermont.^[12]
• ERISA Reimbursement Proceeds: Where Does the Money Go? (co-authored with Delia Druley) (2010) published in Minnesota Trial, Spring 2010, North Dakota Association for Justice, South Dakota’s “The Barrister,” and Pennsylvania Association for Justice Newsletter May, 2010. This article is also scheduled to be published in a 2011 edition of Forum magazine, published by the Consumer Attorneys Of California and by the Wyoming Trial Lawyers.^[13]
• Transparency for ERISA Reimbursement Recoveries: A Proposal for Administrative and Congressional Action (2010), published (or scheduled to be published) in Trial Lawyer Journals in Nevada, Arizona, Colorado, North Dakota, Minnesota, Western Pennsylvania Trial Lawyers Association, and South Dakota.^[14]

Notable Supreme Court Cases in which Professor Baron has Participated

• Wal-Mart v. Shank: Professor Baron was involved in the widely publicized litigation in which Wal-Mart successfully sued Deborah Shank, a permanently disabled and incapacitated victim for all of her tort recovery. Although Wal-Mart in all court proceedings, including the U.S. Supreme Court, the public outcry was so great that Wal-Mart reconsidered and allowed Mrs. Shank to keep her entire recovery and also changed the provision of its plan documents in connection with future victims of catastrophic loss.^[15] On July 25, 2008, Wal Mart sent its letter to Mrs. Shank’s primary attorney Maurice Graham, outlining the changes it was implementing in connection with future reimbursement situations.

• Sereboff: Professor Baron was asked to join the team of lawyers representing the Sereboffs in this case. Professor Baron assisted the leading attorney, Peter Stris, in writing the brief and also in preparation for oral argument. Professor Baron was present in the Courtroom with this case was argued on March 28, 2006. The reported decision is Sereboff v. Mid Atlantic Medical Services, Inc., 126 S.Ct. 1869, 74 USLW 4240, 164 L.Ed.2d 612, (May 15, 2006). Although Professor Baron's side of the case lost, the Sereboff decision is notable in that footnote 2 of this decision recognizes future resolution as the word “appropriate,” as found in ERISA’s § 502(a)(3). Footnote 2 of Sereboff v. Mid Atlantic Medical Services, Inc, 126 S.Ct. 1869, 74 USLW 4240, 164 L.Ed.2d 612, (May 15, 2006) states as follows:^[16]

The Sereboffs argue that, even if the relief Mid Atlantic sought was “equitable” under § 502(a)(3), it was not “appropriate” under that provision in that it contravened principles like the make-whole doctrine. Neither the District Court nor the Court of Appeals considered the argument that Mid Atlantic’s claim was not “appropriate” apart from the contention that it was not “equitable,” and from our examination of the record it does not appear that the Sereboffs raised this distinct assertion below. We decline to consider it for the first time here.^[17]

• Reynolds Metal Company v. Ellis: The U.S. Supreme Court granted certiorari in this case in November, 2000. Professor Baron was contacted to help in briefing and oral argument. Professor Baron agree to assist. A short time later the ERISA plan dismissed the case, notwithstanding the fact it had been successful in getting the high court to grant cert.

References

1. http://www.usd.edu/law/baron.cfm
2. http://erisawithprofessorbaron.com/about/professor-roger-baron/
3. http://www2.law.mercer.edu/lawreview/files/55202.pdf
4. Providence Health System-Washington v. Bush, 2006 WL 3249199 (W.D.Wash. 11/8/06) [applying the “make whole” doctrine in ERISA reimbursement case, citing Mercer Law Review article on ERISA reimbursement]
5. Donaldson v. Pharmacia Pension Plan, 435 F.Supp.2d 853, 2006 WL 1669789 (S.D. Ill.) (decided 6/14/06) [United States District Court, Southern District Illinois citing and quoting Mercer Law Review article on ERISA reimbursement at *10.]
6. http://erisawithprofessorbaron.com/wp-content/uploads/Subrogation-A-Pandoras-Box-Article.pdf
7. In re Complaint of Weeks Marine, Inc., 2006 WL 1843130 (D.N.J.) (decided 6/30/06)[United States District Court for New Jersey citing South Dakota Law Review article on Subrogation at footnote 4, at * 4]
8. Volquardson v. Hartford Insurance Co., 2003 WL 1191404 (D.Neb. 2003)(only the Westlaw citation is currently available for this case) (decided March 14, 2003)[Federal District Court, Judge Urbom, citing South Dakota Law Review article on Subrogation at * 6]
9. http://erisawithprofessorbaron.com
10. Mahler v. Szucs, 957 P.2d 632 (Wash. 1998) [Supreme Court of Washington citing and quoting Dickinson Law Review article on Subrogation on Medical Expense Claims, 957 P.2d at p. 641]
11. http://www.plaintiffsresource.com/temp/ts_F7DADCE1-C2EA-340F-8C73A3B99158C714F7DADCF1-07D0-B7D5-9B4EE0C90BC41E52/EightWaysArticle.pdf
12. http://www.wptla.org/advocate.html
13. http://www.plaintiffsolutionscenter.com/erisamt.pdf
14. http://www.plaintiffsolutionscenter.com/transperancyerisa.pdf
15. http://erisawithprofessorbaron.com/wp-content/uploads/Marilyn-Trefz-ERISA-article-KJA.pdf
16. http://erisawithprofessorbaron.com/us-supreme-court-erisa-cases/
17. Sereboff v. Mid Atlantic Medical Services, Inc., 126 S.Ct. 1869, 74 USLW 4240, 164 L.Ed.2d 612, (May 15, 2006)