Personal Injury Law
Day on Torts 
Covering the Law of Torts by the author of Tennessee Law of Comparative Fault.
Post Frequency: 1.6/day Last Entry: November 20, 2009 at 05:14:28 Recent Entries: 510
By John A. Day
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"Old Warriors"
Posted on November 20, 2009Gary Gwilliam from California has written a very interesting article called "Old Warriers" for Plaintiff Magazine. Read the article here.
The Boss in Nashville
Posted on November 19, 2009There are two reasons there is not a substantive post today. First, I am speaking for three hours at our Justice Programs seminar today and am quite busy. Second, my wife Joy and I went to see Bruce Springsteen in concert last night in Nashville and I did not get to bed until 12:30 this morning...
HealthGrades Sixth Annual Patient Safety in American Hospitals Study
Posted on November 18, 2009HeathGrades studies Medicare patient care in our nation's hospitals based on 15 indicators of patient safety. Here are some highlights from the 2009 report representing data from 2005 -2007: ... There were 913,215 total patient safety events among 864,765 Medicare beneficiarieswhich represents 2...
Motorcoach Safety Action Plan
Posted on November 17, 2009The United States Department of Transportation has adopted the Motorcoach Safety Action Plan following an analysis of safety data. DOT has identified seven priority action items that will have the greatest impact on reducing motorcoach crashes, fatalities and injuries...
Rule of the Week - T.R.E. Rule 104(a)
Posted on November 17, 2009Rule 104 of the Tennessee Rules of Evidence permits the trial judge significant leeway in what may be considered in determining what evidence can be admitted at trial. It provides as follows: Rule 104. Preliminary questions. —(a) Questions of Admissibility Generally...
Party Planning For Tort Lawyers
Posted on November 16, 2009Here are the first few paragraphs of an article that I wrote for the November 2009 edition of the Tennessee Bar Journal titled "Party Planning for Tort Lawyers." Rest the rest of the article (and the footnotes) here. Litigation in a world of comparative fault and several liability involves party planning...
Justice Programs Seminar in Nashville on November 19 and 20
Posted on November 15, 2009Former Justice Penny White, former Judge Joe Riley and I are presenting our annual seminar program for civil trial lawyers in Nashville this week. Learn more and register here.
Inflatable Seat Belts?
Posted on November 13, 2009Ford Motor Company has announced that is bringing to market the world's first automotive inflatable seat belts, combining attributes of traditional seat belts and air bags to provide an added level of crash safety protection for rear seat occupants...
Tort Cases Pending Before the Tennessee Supreme Court
Posted on November 11, 2009F. Chris Cawood v. Linda Booth, et al., E2007-02537-SC-R11-CV, (Tenn. Ct. App. Nov. 25, 2008) has a set of facts you don't run into every day or, at least, I hope you don't run into everyday. Here is the description of the case from the opinion of the Tennessee Court of Appeals...
Motorcycle Deaths and Injuries
Posted on November 11, 2009The National Highway Traffic Safety Administration (NHTSA) recently released a report titled "Motorcycle Helmet Use and Head and Facial Injuries." The Report has a lot of data on motorcycle crashes and the injuries the result, comparing the injuries received by those wearing helmets and those that do not...
Seat Belt Use Continues to Increase
Posted on November 10, 2009The use of seat belts continues to increase in the United States. Seat belt use in 2009 stood at 84 percent, a gain from 83 percent use in 2008. This result is from the National Occupant Protection Use Survey (NOPUS) which is the only survey that provides nationwide probability-based observed data on seat belt use in the United States...
Precise Fix for Defect in Toyotas Still Unknown
Posted on November 08, 2009Toyota has a problem with some of the vehicles it has manufactured and a little over 40 days ago issued a recall of 3.8 million of them. According to Toyota, "[r]ecent events have prompted [the company] to take a closer look at the potential for an accelerator pedal to get stuck in the full open position due to an unsecured or incompatible driver's floor mat...
Thoughts About Subrogation
Posted on November 08, 2009A defense lawyer and I were having a drink the other day and he told me that from time to time he has difficulty getting cases settled at mediation because plaintiff's lawyers don't have information about subrogation interests. Here are some tips to avoid such problems: At the initial client meeting, as you help you client understand his or her rights and go through the outline of the types of damages he or she can recover if the case is successful, explain the law of subrogation...
Duty to Rescue Created By Statute
Posted on November 07, 2009A little over a week ago I wrote this post about the general rule in the law of torts that one person does not have a duty to rescue another from harm. To be sure, there are exceptions to that general rule, but the fact remains that this is one area of tort law in where the duty imposed by law is generally less than that imposed by the moral code of most people...
More on Dangers of Texting While Driving
Posted on November 05, 2009I have written before about the dangers of texting while driving (here is a post about the danger of posed when truckers text and drive), and the Tennessee Legislature recently outlawed the practice. Here is a game developed by the New York Times that demonstrates the danger.
Tort Cases Pending Before the Tennessee Supreme Court - Physician Assistants
Posted on November 04, 2009There are a significant number of cases of interest to Tennessee tort lawyers pending before the Tennessee Supreme Court. One of those cases is Cox v. M.A. Primary and Urgent Care Clinic, 2009 WL 230242 (Tenn. Ct. App. 230242 (Jan. 30, 2009). The issue in the case is the appropriate standard of care for a physician's assistant...
Rhode Island Hospital Cannot Get It Right
Posted on November 03, 2009You know that patient safety is not a priority in a hospital when your state regulatory agency orders that cameras be installed in your operating rooms. Rhode Island Hospital has had five wrong-site surgeries since 2007. Here is how the AP described the last incident: The latest incident last month involved a patient who was to have surgery on two fingers...
Texas Supreme Court Weighs In On Collectability Issue in Legal Malpractice Cases
Posted on November 03, 2009I have written in the past about whether a plaintiff in a legal malpractice action arising out of the alleged mishandling of the plaintiff's underlying case should have to prove not only that the firm committed malpractice and that damages would have been awarded if malpractice had not occurred but also that the damages were collectable...
Nashville Annual Review For Civil Trial Practioners Only Two Weeks Away
Posted on November 02, 2009Penny White, Joe Riley and I are on the road again this Fall for the 2009 Justice Programs seminars. This two-day, 15-hour is designed for Tennessee lawyers who do civil litigation and who are looking for substantive continuing legal education that will help them better serve their clients...
Commercial Appeal Writes About Medical Malpractice Litigation
Posted on November 01, 2009The Commercial Appeal wrote an interesting story on medical malpractice litigation in today's paper. Read it here. An excerpt: Nationwide, the number of payments physicians made for malpractice claims fell to 11,037 last year -- the lowest figure since the National Practitioner Data Bank began tracking data in 1990...
Upcoming AAJ Seminar
Posted on November 01, 2009Focus groups are invaluable tools for exploring key issues in your case before taking it into the courtroom. Register for Case Plus: The Next Step in Developing and Testing Your Trial Story to benefit from not one, but three focus groups—now with extended focus group time spent on your case...
Tennessee Trial Law Report
Posted on October 30, 2009The November 2009 edition of the Tennessee Trial Law Report is in the mail. This edition includes a summary of 16 different cases addressing various aspects of the law of torts, civil procedure, evidence and trial as decided by Tennessee appellate courts between September 15 and October 15, 2009...
Lawsuit Against Pharmacists For Filling Prescriptions for Known Drug Abuser
Posted on October 30, 2009On the afternoon of June 4, 2004, a woman named Patricia Copening driving a SUV ran into a delivery-van driver who had pulled over to repair a flat tire on the highway's shoulder, killing him at the scene. She also hit another man, causing a head and other injuries...
Thinking About the Lack of a Duty to Rescue
Posted on October 29, 2009I participated in a panel discussion at a local high school a week or so ago. The attendees were high school students and their parents. The other participants on the panel included a local juvenile court judge, a police officer, and an assistant district attorney...
Death of John O'Quinn
Posted on October 29, 2009Houston trial lawyer John O'Quinn died in a motor vehicle wreck earlier today. This article provides a lot of information about this very interesting man.
Another Sanction for Misconduct
Posted on October 28, 2009The Star-Tribune from Minneapolis - St. Paul reports that a state court judge in Minnesota imposed a $4 million sanction against Burlington Northern Santa Fe Corp. for engaging in a "staggering" pattern of misconduct aimed at covering up its role in the deaths of four young people whose car collided with a train largely because a crossing gate wasn't working properly...
Putting Medical Malpractice Insurance Costs in Perspective
Posted on October 27, 2009An article by Robert Heath in Monday's Washington Post gives us some of the financial details of the practice of Dr. Robert Hardi, a D.C. gastroenterologist. Dr. Hardi has about 4500 patient visits per year and performs about 1150 procedures...
Handling a Products Liability Case on the Fly
Posted on October 26, 2009I must confess I have never spent a lot of time thinking about men's underwear. Thus, it never crossed my mind that a products liability case could arise from men's underwear of any type. Women's underwear are different. I am not saying I spend much time thinking about that subject either, but I know of at least one products case that arose because of claimed defect in a thong intended to worn by a woman...
New Time Periods in Federal Court
Posted on October 26, 2009A recent post described proposed changes to the Local Rules of Court for the United States District Court for the Middle District of Tennessee. For the most part, the rule changes addressed changes in the time periods for action required under the rules...
Sloppy Citation Costs Lawyer Money
Posted on October 23, 2009The Wisconsin Supreme Court has fined a lawyer $100 for providing an improper citation to a court case. The fine was imposed in a footnote in 2008 unpublished opinion, Espitia v. Fouche. Here is the footnote: Counsel for Espitia cites to an unpublished case assertedly upholding a stipulated damages clause due to the difficulty of ascertaining "the exact amount of income certain vending machines would produce...
Liability in the Sweat Lodge Case
Posted on October 22, 2009By now most of us have heard of the Sweat Lodge incident. The Huffington Post article says that "[m]ore than 50 followers of spiritual guru James Arthur Ray had just endured five strenuous days of fasting, sleep-deprivation and mind-altering breathing exercises [were] into a sweat lodge ceremony" that is said to have resulted in the deaths of three people...
Rule of the Week - T.R.C.P. Rule 5
Posted on October 21, 2009Rule 5 of the Tennessee Rules of Civil Procedure addresses the requirements for the filing and service of papers in civil litigation. Generally speaking, "every order required by its terms to be served; every pleading subsequent to the original complaint; every paper relating to discovery required to be served on a party; every amendment; every written motion other than one which may be heard ex parte; and, every written notice, appearance, demand, offer of judgment, designation of record on appeal, and similar papers shall be served upon each of the parties...
Will Rush Apologize? Will Al Sharpton Sue if Rush Does Not?
Posted on October 19, 2009Rush Limbaugh is a gifted entertainer who has a propensity to say some pretty ridiculous things. That being said, it is pretty hard to be on the radio for three hours per day and not say some ridiculous things, especially when you have to appease an audience that feeds off of ridiculous things...
Organizing Evidence for the Jury
Posted on October 19, 2009Jim McElhaney is one of the best-known trial advocacy professors in the country and his "McElhaney on Litigation" columns in the ABA Journal are read by hundreds of thousands of lawyers each month. "Give Chronology a Timeout" is in the October, 2009 edition of the ABA Journal and is a re-print from an article published seven years earlier...
Board Certification in Medical Malpractice
Posted on October 18, 2009A couple of months ago I filed an application with the American Board of Professional Liability Attorneys seeking board certification in medical malpractice cases. I have been board certified as a civil trial specialist for over 15 years...
New Medical Malpractice Filing Numbers
Posted on October 17, 2009Every day, more than 5 Tennesseans die as a result of medical malpractice. How do I know such a thing? Simple math. The Institute of Medicine has reported that 98,000 people a year die from medical malpractice. Think about it: the death rate from medical malpractice is the equivalent of a large commercial airline crash every day that results in the death of 268 people...
More Tips From Paul Luvera
Posted on October 16, 2009Paul Luvera's blog, Plaintiff Trial Lawyer Tips, includes a recent post from Paul titled "My General Views About Plaintiff Trial Work." I recommend the entire post to you, but here is a excerpt to wet your appetite for the rest: Most important, our trials must be focused and limited to this approach...
Mistrial and Sanctions Affirmed When Lawyer Violates Order on Motion in Limine
Posted on October 14, 2009Unfortunately, I have been in a trial where opposing counsel repeatedly violated a Court's order on a motion in limine. Therefore, I must admit I took some pleasure in reading this opinion where the Roman Catholic Diocese of Burlington, Vermont was sanctioned because its counsel violated such an order...
Rule of the Week - T.R.C.P. 43.04
Posted on October 14, 2009Winning pre-trial motions means that you have to get relevant data before the Court in the right way. Following the right procedure is not only the way you win motions you should win but is also the way you create a record for a possible appeal. Rule 43...
Paul Luvera on Losing Cases
Posted on October 13, 2009Washington State's outstanding plaintiff's lawyer offers great advice to those of us who have lost jury trials. A sample from "First Aid for Lawyers When They Lose Their Case:" When trial lawyers who are passionate about their client's cause lose the case, their pain for the loss of their client is palpable...
Fee Approvals When Representing Minors
Posted on October 12, 2009It was almost two years ago that I wrote about Wright v. Wright, No. M2007-00378-COA-R3-CV (Tenn. Ct. App. Dec. 12, 2007). (Post 1) (Post 2) Wright 1 is an opinion authored by Judge Walter Kurtz that reversed a decision to award a plaintiff's lawyer a one-third contingent fee in a personal injury case brought on behalf of a minor...
CBO Offers New Data on Cost of Medical Malpractice Lawsuits
Posted on October 11, 2009Senator Orin Hatch (R-Nevada) asked the Congressional Budget Office to update its previous findings concerning the effect that restrictions on the rights of patients to hold the health care industry responsible for errors that kill or injure patients ("tort reform")...
Computer-Generated Business Records
Posted on October 09, 2009How do you get computer-generated business records admitted into evidence? The same way you get other business records admitted into evidence, according to the Ninth Circuit Court of Appeals. In U-Haul Intern., Inc. v. Lumbermens Mut. Cas. Co...
Another Preemption Case Nears SCOTUS Review
Posted on October 08, 2009On October 22, 2008 the Court of Appeals of California, Fourth Appellate District, Division Three, held that FMVSS 208 preempted the plaintiffs claim that a vehicle with a lap-only seat belt in the rear inboard passenger seat was sold in a defective and unreasonably dangerous condition...
Rule of the Week - T.R.C.P. 7.02 (Motions)
Posted on October 07, 2009Rule 7.02 of the Tennessee Rules of Civil Procedure governs motions. It is important for what it does not say. Here is the text of the rule: (1) An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought...
Profits in the Medical Malpractice Insurance Industry
Posted on October 06, 2009From the American Association for Justice's new report, The Insurance Hoax: How Doctors and Patients Pay for the Huge Earnings of Medical Malpractice Insurers : As Congress debates nationwide health care reform, a new analysis reveals malpractice insurers have long-played a cruel hoax on legislators and the public...
An Appropriate Handoff
Posted on October 06, 2009Yes, handoffs occur in football. But they also occur in healthcare, when one professional transfers the responsibility for caring for a patient to another provider. Here is how The Doctor's Company explains handoffs when talking about hospitalists: The primary objective of a handoff is to provide accurate information about a patient's care, treatment, current condition, and any recent or anticipated changes...
Proposed Rule Change in Federal Court for the Middle District of Tennessee
Posted on October 05, 2009The United States District Court for the Middle District of Tennessee has released for public comment proposed changes in the local rules. Here is a red-lined version of the proposed rules. The comment period ends October 31, 2009. Most of the rule changes address of change of the time periods required for responding to motions, providing information for settlement conferences, designating deposition testimony for trial, etc...
Videos of Erin Andrews and the Nashville Connection
Posted on October 04, 2009It was reported several months ago that nude videos of ESPN reporter Erin Andrews were circulating on the Internet. The pictures were taken in several hotels. The man accused of taking the videos, Michael David Barrett, has been arrested...
October 2009 Tennessee Trial Law Report
Posted on October 03, 2009The October 2009 edition of the Tennessee Trial Law Report is in the mail. This edition includes a summary of 17 different cases addressing various aspects of the law of torts, civil procedure, evidence and trial as decided by Tennessee appellate courts between August 15 and September 15, 2009...
More Information About Texting and Use of Cell Phones While Driving
Posted on October 02, 2009There was a big conference in Washington, D.C. this week that addressed cell phone use and texting and how these practice impaired a driver's ability to focus on the safe operation of his or her vehicle. The two-day summit brought together safety experts, researchers, industry representatives, elected officials and members of the public to share their expertise, experiences and ideas for reducing distracted driving behavior and addressing the safety risk posed by the growing problem across all modes of transportation...
New Attorney General Opinion on Railroad Crossings
Posted on October 02, 2009The Tennessee Attorney General's Office has issued an Opinion that provides that "Tenn. Code Ann. § 65-12-108 does not require a train engine operator to blow a train's whistle or horn before crossing a private drive. Tenn. Code Ann...
Los Angeles Times Article Speaks Out About Tort Reform - "The Healthcare Debate's Frivilous Sideshow"
Posted on October 01, 2009This column from the Business Section of today's Los Angeles Times attacks the myth that restriction of the rights of patients to hold health care providers responsible for harming patients must be a part of national healthcare reform. An excerpt: Every circus needs a sideshow, which must be why every time the issue of rising medical costs gets debated, politicians start clamoring for "tort reform...
Toyota Recall: Floor Mats Increase Risk of Injury and Death
Posted on October 01, 2009The Toyota Motor Corp. has announced that it will recall 3.8 million vehicles in the United States. The recall affects Toyota models from 2004 – 2010. Specific models affected include 2007-2010 Toyota Camry, 2005-2010 Toyota Avalon, 2004-2009 Toyota Prius, 2005-2010 Tacoma, 2007-2010 Toyota Tundra, 2007-2010 Lexus ES350 and 2006-2010 Lexus IS250 and IS350...
Rule of the Week - T.R.C.P 8.03
Posted on September 30, 2009There are numerous differences in the state rules of civil procedure and the federal rules of civil procedure. For example, Tennessee Rule 8.03 is different than F.R.C.P. Rule 8(c) because it requires a defendant who pleads an affirmative defense to set forth facts that form the basis of the defense...
New Tennessee Supreme Court Opinion on Comparative Fault
Posted on September 30, 2009The Tennessee Supreme Court has ruled that a plaintiff who lost a medical malpractice case in federal court was not estopped from pursing a case against a State-employed doctor even though the federal court jury assigned no fault to the doctor, a non-party in the federal court action...
Tennessee Supreme Court Issues Proposed Rules for Public Comment
Posted on September 29, 2009The Tennessee Supreme Court has asked for public comment on proposed changes to the rules of procedure and evidence. The Order asking for public comment can be viewed here. I serve on the Court's Advisory Commission on the Rules of Practice and Procedure and I am happy to report that the Court has accepted (at least for purposes of public comment) each of the rule changes proposed by the Commission...
Effective Phone and Video-Conference Depositions
Posted on September 28, 2009Fred Fresard, author of the Litigation Cost Control blog, has written three great posts on the steps to effective phone and video-conference depositions. As Fred explains, "the suitability of a deponent for remote examination depends on the importance of the witness to the ultimate outcome of the case, and the potential length and complexity of their testimony...
Washington State Struck the Certificate of Merit - and an Editorial Board Supports the Decision
Posted on September 28, 2009I recently wrote this post about the certificate of merit law struck down by the Washington Supreme Court. Here is an editorial from The Olympian which supports the Court's decision. Here is an excerpt: The justices were right to keep the barrier between the legislative and judicial branches of government...
Letter to the Tennessee Supreme Court
Posted on September 27, 2009The Tennessee Supreme Court has published a proposed re-draft of Rule 27, the rule which addresses the process of judical evaluation. Set forth below is my letter to the Court that addresses one phrase in the proposed rule. NOTE: this letter was written in my individual capacity and not as Chair of the Tennessee Judical Performance Evaluation Commission...
Electric Cars and Changes in Car Accident Litigation
Posted on September 25, 2009As this article in Wednesday's Washington Post explains, electric cars present a new type of hazard to pedestrians and those with impaired sight: you can't hear them coming. At low speeds (under 6.2 MPH) the cars can literally sneak up on you and put you at risk of serious injury...
Op-ed By Anthony Tarricone, AAJ President
Posted on September 25, 2009Here is an op-ed from today's Politico titled "Putting Trial Lawyers out of Business." August was quite the month in the ongoing health care saga. Death panels. Scaring seniors. Angry mobs discovering new villains to blame for the terrible health care system we find ourselves having to fix today...
Lawsuit By Coyote Ugly Bar Patron
Posted on September 24, 2009A former patron at the Coyote Ugly Saloon in Nashville has sued the entity, claiming she was injured when she fell off a slippery bar. She claims that the bar surface should have been kept dry (and therefore safe) because she was invited to dance on it by employees...
Rule of the Week - T.R.C.P. 37.03(1)
Posted on September 23, 2009Rule 37.03(1) of the Tennessee Rules of Civil Procedure is the rule that provides for sanctions for the failure to provide complete answers to interrogatories and other discovery. Here is the text of the rule: A party who without substantial justification fails to supplement or amend responses to discovery requests as required by Rule 26...
Bologna Sandwich Case - More Than Meats the Eye
Posted on September 22, 2009For decades people have spread false or half-true stories about lawsuits. Here is the latest one I heard the other day on a talk radio show: A prisoner filed a $3M lawsuit alleging that a prison guard forced him to rub his bologna sandwich on his (the prisoner's) penis and then forced the prisoner to eat it...
Tennesse Law of Comparative Fault - Third Edition
Posted on September 21, 2009Do you have a question about comparative fault law in Tennessee? Or the interaction between comparative fault law and civil procedure? If so, you may wish to consult Tennessee Law of Comparative Fault. Donald Capparella and I wrote the original edition of the book, and John Wood joined us for the second and third editions...
President Orders Tort Reform Tests
Posted on September 18, 2009President Obama announced yesterday that the government will set aside $25 million to support state grants for pilot programs to reduce medical malpractice lawsuits. ABC News describes the grant process this way: The Department of Health and Human Services will oversee the process for states to launch and test initiatives that meet the following parameters: • Put patient safety first and work to reduce preventable injuries; • Foster better communication between doctors and their patients; • Ensure that patients are compensated in a fair and timely manner for medical injuries, while also reducing the incidence of frivolous lawsuits; and • Reduce liability premiums...
Georgia Supreme Court Considers Constitutionality of Damages Cap in Medical Malpractice Cases
Posted on September 17, 2009The Georgia Legislature imposed a cap on noneconomic damages in meritorious medical malpractice cases in 2005. The cap is $350,000. In a case tried in Fulton County several years ago, the jury's verdict exceeded the cap, and the Georgia Supreme Court is now considering whether the cap is constitutional...
Washington Certificate of Merit Struck Down
Posted on September 17, 2009The Washington Supreme Court has struck down the filing of a certificate of merit in medical malpractice cases in Washington state. The certificate is required by RCW 7.70.150. The opinion said that the statute was unconstitutional because it violated the separation of powers between the Legislature and the Judiciary and it denied medical malpractice victims equal access to the courts...
Food Safety News
Posted on September 16, 2009Food Safety News is a new publication sponsored by food safety expert Bill Marler and his firm Marler Clark. It contains information on the food safety issues of the day, whether they pertain to foodborne illness outbreaks, recalled products, or food politics...
Fosamax Products Liability Case Ends in Mistrial
Posted on September 15, 2009Florida AP reports that a federal judge declared a mistrial last Friday in a trial over whether Merck & Co.'s former blockbuster osteoporosis drug, Fosamax, causes painful jaw bone destruction. The trial, which is the first of many concerning Fosamax, started Aug...
Products Liability Case Settled
Posted on September 14, 2009A settlement has been reached in Mohr v. Daimler Chrysler Corp., a products liability case which alleged defects in a 2000 Dodge Caravan. The Court of Appeals affirmed almost $5,000,000 in compensatory damage awards for the death of the driver and front-seat passenger in the case...
Scehduling Orders: Deadlines for Alleging Fault Against Nonparties
Posted on September 14, 2009Scheduling orders are wonderful tools that are often overlooked by far too many plaintiff's lawyers. One of the most important deadlines to put in a scheduling order is a deadline by which the defendant must allege the fault of a person not a party to the action...
Justice Programs Seminar 2009
Posted on September 13, 2009Penny White, Joe Riley and I are on the road again this Fall for the 2009 Justice Programs seminars. This two-day, 15-hour is designed for Tennessee lawyers who do civil litigation and who are looking for substantive continuing legal education that will help them better serve their clients...
Iqbal / Twombly: The Death of Notice Pleading
Posted on September 12, 2009If you don't understand the title of this post, you will want to log into the seminar that goes by the same name that is sponsored by AAJ. This seminar, exclusively for plaintiff's lawyers, will analyze the USSC decisions in these important cases and explain how they will impact your practice...
Medical Malpractice Reform: Survey Manipulation
Posted on September 11, 2009Max Kennerly has done it again. Read this post on theLItigation and Trial blog which looks behind the allegatioin that the American people support medical malpractice reform. Before you do, read the following: DO YOU AGREE OR DISAGREE WITH THIS STATEMENT: As part of any health care reform plan, Congress needs to change the medical malpractice system so that cases are resolved quicker, and more reliably, on behalf of those who are in the right...
Suggestion for Expert Witness Disclosure Language in Scheduling Orders
Posted on September 10, 2009One of the battles in the preparation of scheduling orders is the deadlines for disclosure of expert witnesses. The defense always wants the plaintiff to go first, and wants an additional 30 or 60 or even 90 days to disclose its experts...
Death of a Giant of the Tennessee Trial Bar
Posted on September 09, 2009Nashville trial lawyer John T. Conners, Jr. died yesterday in his home in West Meade. He would have turned 90 in March 2010. He was a name-partner at Boult Cummings Conners & Berry in Nashville and practiced law over 50 years...
Jury Selection - Exercising Preemptory Challenges
Posted on September 08, 2009A couple years ago I wrote this post about how to exercise preemptory challenges. Last week, I got a call from a lawyer on this issue once again, and thought I should re-run it. It is always a good idea to ask the trial judge at the pretrial conference or on the morning of trial how he or she handles peremptory challenges...
New Tennessee Legislation of Interest to Tort Lawyers - Post 22
Posted on September 05, 2009This is the last of 22 posts in our series of the new laws of interest to tort lawyers. If you missed any of these posts all of them are collected in the "Legislation 2009" category. The last post concerns the changes to the rules of civil procedure, evidence, and appellate procedure, as well as a host of changes to the rules dealing with electronic evidence...
New Tennessee Legislation of Interest to Tort Lawyers - Post 21
Posted on September 04, 2009Post 21 of this series re-designates the current language of existing T.C.A. Section 70-7-104 (the Recreational Use Statute) as subsection (a) and then adds a subsection (b). Thus, as of July 1, the new statute reads as follows: (a) This part does not limit the liability that otherwise exists for: (1) Gross negligence, willful or wanton conduct that results in a failure to guard or warn against a dangerous condition, use, structure or activity; or (2) Injury caused by acts of persons to whom permission to hunt, fish, trap, camp, hike, sightsee, cave, or any other legal purpose was granted, to third persons or to persons to whom the person granting permission, or the landowner, lessee, occupant, or any person in control of the land or premises, owed a duty to keep the land or premises safe or to warn of danger...
Health Care Reform Everyone Can Support - The Use of Medical Checklists
Posted on September 03, 2009A reader sent me an article in September - October 2009 issue of Harvard Magazine that discusses the work of Dr. Atul Gawande. Dr. Gawande is very interested in patient safety. One of his interests is the use of medical checklists, a subject I have addressed in a previous post...
New Tennessee Legislation of Interest to Tort Lawyers - Post 20
Posted on September 02, 2009Post 20 (we are almost finished with this series folks, I promise) concerns judicial selection and evaluation. So much has been written about this subject the last four years. The bill is 16 pages in lengh and cannot be summarized here...
Judicial Performance Evaluation Commission Members Announced
Posted on September 01, 2009Last week I filed a post on the new members of the Judicial Selection Commission. Today, the appointees to the Judicial Performance Evaluation Commission were announced. The Judicial Performance Evaluation Commission, which replaces the Judicial Evaluation Commission, evaluates the performance of the appellate level judges who are up for re-election...
September 2009 Tennessee Trial Law Report is in the Mail
Posted on August 31, 2009The September 2009 edition of the Tennessee Trial Law Report is in the mail. The lazy days of summer are upon us - this edition includes a summary of just 10 different cases addressing various aspects of the law of torts, civil procedure, evidence and trial as decided by Tennessee appellate courts between July 15 and August 15, 2009...
New Tennessee Legislation of Interest to Tort Lawyers - Post 19
Posted on August 31, 2009Post 19 addresses the liability of "agritourism professionals." What, in heaven's name, is a agritourism professional? A person involved in agritourism, of course. And what is that? Agritourism is any activity carried out on a farm or ranch, eligible for greenbelt classification under Title 67, Chapter 5, Part 10, that allows members of the general public, for recreational, entertainment, or educational purposes, to view or enjoy rural activities, including farming, ranching, historic, cultural, or harvest-your-own activities, or natural activities and attractions...
"New" Chrysler Steps Up to the Plate
Posted on August 31, 2009New Chrysler (Chrysler Group LLC) has announced that it will be accepting product liability claims on vehicles manufactured by its predecessor, now known as Old Carco, but only for accidents occurring after June 10, 2009. Chrysler yielded to pressure from consumer groups that aggressively lobbied for a law requiring warning stickers on used Chrysler vehicles, an effort which would have reduced the value of the vehicles...
New Tennessee Legislation of Interest to Tort Lawyers - Post 18
Posted on August 30, 2009Post 18 of this series brings to your attention a change in the law concerning the licensing of lawyers and pro hac vice admission of lawyers to practice in Tennessee. The language of T.C.A. Sec. 23-1-108 has been deleted and replaced with the following language: No person shall practice law in this state without first receiving a license issued by the Tennessee supreme court and complying with the provisions of Rule 6 of the Rules of the Tennessee supreme court concerning admission to the practice of law, except that nothing in this statute precludes the pro hac vice admission of persons licensed in other jurisdictions in accordance with Tennessee Supreme Court Rule 19...
New Tennessee Legislation of Interest to Tort Lawyers - Post 17
Posted on August 29, 2009Post 17 of this series also addresses the subject of court reporting. This bill establishes: (1) licensure requirements for court reporters; (2) the Tennessee Board of Court Reporting; and (3) the Tennessee board of Court Reporting Fund...
New Tennessee Legislation of Interest to Tort Lawyers - Post 16
Posted on August 28, 2009Post 16 of this series addresses a change in the law applicable to taking of depositions. The bill summary set forth below describes the original bill as amended. The new law prohibit[s] the taking of a deposition before a person who is: (1) A party to the action or an attorney for one of the parties; (2) A relative, including a spouse, of one of the parties or of an attorney for one of the parties; (3) An employee of one of the parties or of an attorney for one of the parties; (4) Someone who has, or has had during the past two years, a sexual relationship with one of the parties or with an attorney for one of the parties; or (5) Someone with a financial interest in the action or its outcome...
New Tennessee Legislation of Interest to Tort Lawyers - Post 15
Posted on August 27, 2009Post 15 addresses the changes to Tennessee law concerning the proper way to give notice to potential defendants in medical malpractice cases and the changes in the law concerning the certificate of good faith. I have addressed this legislation in several other posts (here is a post with a complete summary) and need not repeat what I have published in the past...
New Judicial Selection Commission Members
Posted on August 27, 2009The new members of the Tennessee Judicial Selection Commission have been announced. Lt. Governor Ron Ramsey appointed the following people: Miles Burdine, President and CEO of the Kingsport Area Chamber of Commerce Christopher Campbell, a Memphis attorney Christopher Clem, a Chattanooga attorney William Jenkins, Jr...
AAJ Issues Report About Unsafe Trucks on U.S. Roads
Posted on August 26, 2009The American Association for Justice has issued a report called "Warning! Safety Violation Ahead." The report reveals that "a new analysis of government data reveals that more than 28,000 motor carrier companies, representing more than 200,000 trucks, are currently operating in violation of federal safety laws...
Additional Email Tips
Posted on August 26, 2009On August 11, 2009 I directed you to an article written by Steven Robbins on writing better emails. Here is a great article written by Jim Calloway on managing your in-box. Jim writes the "Law Practice Tips Blog," a great place to learn about law practice management and technology...
Failure to Inform Patients of Abnormal Test Results
Posted on August 25, 2009An article in Archives of Internal Medicine (2009;169(12):1123-1129) reveals that about 1 in 14 abnormal outpatient test results are either not reported to the patient or the report to the patient is not documented. The article summarizes a study consisting "of a retrospective medical record review of 5434 randomly selected patients aged 50 to 69 years in 19 community-based and 4 academic medical center primary care practices...
Dan Hull on Lawyering
Posted on August 25, 2009I love to read Dan Hull's blog, What About Clients? He gets it. Or, more precisely, he gets most of it. He doesn't get contingent fees, which puzzles me. But the rest of it is firmly within his grasp. Dan's post, Litigation: Lawyering, Real Life and a Little Zen , is one is wish I would have written...
Hospitals That Do It Right
Posted on August 25, 2009Some health care providers are starting to get it. When you mess up, fix it. Don't hide. Don't cover it up. Don't blame the patient. Just do the responsible thing and fix it. Today's Wall Street Journal writes about the relatively recent phenomena of hospitals that not only step in and make a fair payment to a person who has been harmed by negligence but go a step further and (a) figure out how and why the error happened and (b) put measures in place to prevent future errors...
New Tennessee Legislation of Interest to Tort Lawyers - Post 14
Posted on August 24, 2009Well, are all of these posts on new legislation of interest to Tennessee tort lawyers driving you crazy? Some lawyers forget that the Tennessee General Assembly has passed hundreds of laws that impact tort practice. The rest of us know that tort law has it roots in common law, but is also greatly impacted by statutes and regulations...
CPSC Renews Warnings About Bassinets
Posted on August 22, 2009The Consumer Product Safety Commission has renewed warnings to parents that certain bassinets made by Simplicty present a risk of death to children. From the press release: [The CPSC] is once again urging all parents and caregivers to immediately stop using convertible "close-sleeper/bedside sleeper" bassinets manufactured by Simplicity Inc...
New Tennessee Legislation of Interest to Tort Lawyers - Post 13
Posted on August 21, 2009Post 13 in our series of new legislation of interest to tort lawyers concerns the administration of in nursing homes. Public Chapter 403 eliminates the need for nurses to provide medication to patients. Now, an aide who receives certain training is permitted to administer the following medications: (1) Oral medications; (2) Topical medications; (3) Medications administered as drops to the eye, ear, or nose;; and (4) Any of the above medications prescribed with a designation authorizing or requiring administration on an as-needed basis, but only if a nursing assessment of the patient is completed by a licensed nurse before the medication is administered...
Blaming the Plaintff
Posted on August 20, 2009We have seen much of this story happen before. Woman is raped at gunpoint in a hotel parking garage. Woman sues hotel for negligent failure to keep premises secure. Hotel blames woman for failing to exercise due care - how dare she assume that the hotel parking garage was secure...
AAJ Seminar: "Litigating Pharmaceutical and Medical Device Cases"
Posted on August 20, 2009AAJ is sponsoring a pharmaceutical and medical device seminar at the Venetian in Las Vegas on September 24-25, 2009. The seminar, open only to AAJ members who represent plaintiffs, offers 11.25 CLE hours. The seminar is an effort lead by AAJ's Section on Toxic, Environmental, and Pharmaceutical Torts (STEP), which focuses on the toxic effects of pharmaceuticals, pesticides and herbicides, medical devices, consumer products, industrial pollution, and other environmental poisons...
New Tennessee Legislation of Interest to Tort Lawyers - Post 12
Posted on August 19, 2009Post 12 of this series on changes in Tennessee statutory law of interest to tort lawyers addresses a new law that imposes lighting requirements on bicycles. Here is the new code section, which replaces existing section (a) of T.C.A. Sec. 55-8-177: (a) Every bicycle, when in use at nighttime, shall be equipped with a lamp on the front which shall emit a white light visible from a distance of at least five hundred feet (500') to the front and either a red reflector or a lamp emitting a red light which shall be visible from a distance of at least five hundred feet (500') to the rear when directly in front of lawful upper beams of head lamps on a motor vehicle...
New Tennessee Legislation of Interest to Tort Lawyers - Post 11
Posted on August 18, 2009We are up to Post 11 in our series that highlights new changes to Tennessee statutory law of interest to tort lawyers. The Legislature has modified T.C.A. Sec. 68-11-256 (a) to require all nursing homes to perform a criminal background check on all employees who provide direct care to patients or residents...
The First Syllable of "Lawyer" is "Law"
Posted on August 17, 2009A Tennessee lawyer who purports to have knowledge and experience in Tennessee medical malpractice law recently wrote a blog post that advised the pubic about statutes of limitations in medical malpractice cases. His post was wrong, and it was obvious to me that he was unaware of the legislation passed in June and that went into effect on July 1, 2009...
Working Smarter
Posted on August 15, 2009Those of us who typically work for contingent fees have an extra incentive to work smarter. Like many of you, I have done a lot of reading in the field of time managment and project management, looking for ways to improve my productivity through better organization...
New Tennessee Legislation of Interest to Tort Lawyers - Post 10
Posted on August 14, 2009Post 10 addresses changes to the Personal Rights Protection Act of 1984, codified at TCA Title 47, Chapter 25, Part 11. Here is a summary of the new law: Under present law, the Personal Rights Protection Act specifies that an individual is entitled to recover the actual damages suffered as a result of the knowing use or infringement of such individual's rights and any profits that are attributable to such use or infringement which are not taken into account in computing the actual damages...
New Tennessee Legislation of Interest to Tort Lawyers - Post 9
Posted on August 13, 2009Post 9 in our ongoing series of legislation of interest to tort lawyers addresses a new act that clarifies the responsibility of cemetary operators when they learn that a body has been interred in the wrong burial plot at the cemetery. If the cemetary operator complies with the statute no damages can be awarded against the cemetery unless the cemetery acted intentionally or with malice...
New Tennessee Legislation of Interest to Tort Lawyers - Post 8
Posted on August 12, 2009This is Post 8 in my review of the legislation of interest to tort lawyers that was passed by the General Assembly in 2009. Want to see more? Look at the Legislation 2009 category. This legislation is of interest to those who bring or defend dram shop cases...
Thank You
Posted on August 12, 2009Last week I received a letter informing me that I had been selected for inclusion in the 2010 edition of Best Lawyers in America. I have been fortunate to have been included among this distinguished group of lawyers since 1993...
New Tennessee Legislation of Interest to Tort Lawyers - Post 7
Posted on August 11, 2009Here is Post 7 of recent changes to statutory law in Tennessee that I think will be of interest to tort lawyers. As I have said in the last six posts, you can read about additional changes in the law under the Legislation 2009 category. Public Chapter 206 changed the Governmental Tort Liability Act to include Tennessee Code Annotated, Section 29-20-101 et seq, to specifically include "community action agenc[ies] [and] nonprofit corporation[s] which administer[] the Head Start or Community Service Block Grant programs" as entities covered under the Act...
Tips for Managing Email
Posted on August 11, 2009LIke you, I get a lot of emails every day. All too often, I permit emails to control my work schedule - a big mistake. Here is a nice article that gives suggestions for managing the mass of emails that enter our lives every day. The writer, Stever Robbins, accurately points out the reason for the problem: Before e-mail, senders shouldered the burden of mail...
Dead By Mistake
Posted on August 11, 2009The "Dead By Mistake" website, hosted by the San Francisco Chronicle, contains chilling stories of deficiencies in our health care system that result in injury and death. This alone brings the point home: more people die each month from preventable medical errors than died in the terrorist attacks of 9/11...
Dog Bite Case Website
Posted on August 10, 2009I admire people who have the foresight and courage to pick a practice area and learn it, inside out. I greatly admire those who share the knowledge they have to help other lawyers and the public. Here is a fine example: Dog Bite Law by Kenneth Phillips...
Blore's Razor
Posted on August 08, 2009Those of us who do medical malpractice work are familiar with Occam's Razor, the common understanding of which (as stated on Wikipedia) is that "of several acceptable explanations for a phenomenon, the simplest is preferable, provided that it takes all circumstances into account...
New Tennessee Legislation of Interest to Tort Lawyers - Post 6
Posted on August 07, 2009This is the sixth in a series of posts concerning changes in Tennessee statutory law that I believe to be of interest to tort lawyers. For more changes click on the Legislation 2009 category of this blog. Public Chapter 201 prohibits, subject to certain exceptions, the reading or sending of text messages while operating a motor vehicle and while the vehicle is in motion...
Objections to Form of the Question at Depositions (With a Discussion About Objections to Leading Questions)
Posted on August 06, 2009"All objections, except those as to the form of the question, are reserved." This sentence, or one substantially similar to it, may be found at the beginning of every deposition. But what are objections to the form of the question? Evan Shaeffer at The Trial Practice Tips Weblog shared a list of objections to form in a recent post...
New Tennessee Legislation of Interest to Tort Lawyers - Post 5
Posted on August 05, 2009This is the fifth in a series of posts about changes in Tennessee statutory law of interest to tort lawyers. For other changes click on the Legislation 2009 category. Tennessee has a "Ski Area Safety and Liability Act" codified at TCA Section 68-114-101 et seq...
New Tennessee Legislation of Interest to Tort Lawyers - Post 4
Posted on August 04, 2009This is the fourth in a series of posts that addresses new laws of interest to Tennessee tort lawyers. For other changes go to the Legislation 2009 category of this blog. Those of us who keep an eye on the Tennessee General Assembly know that there is an ongoing battle over whether hospitals will be permitted to employ physicians...
Critical Self-Evaluation Privilege
Posted on August 03, 2009Tim Edwards of Memphis has shared an opinion from the federal court in Memphis that refused to recognize the existence of the so-called "critical self-examination privilege." The products case concerns the HiRes 90k cochlear implant, a Class ITI medical device that provides a sense of sound by direct stimulation of the auditory nerves...
New Tennessee Legislation of Interest to Tort Lawyers - Post 3
Posted on August 03, 2009Many lawyers think that the law concerning depositions is set out only in the Tennessee Rules of Civil Procedure and the case law interpreting those rules. That is not correct. Public Chapter 55 creates a new subsection to TCA Section 24-9-101, which allows court to award attorney fees and expenses if motion to quash subpoena is granted when the witness is exempt from subpoena to trial...
Implementation of "Red Flags" Rule Delayed
Posted on July 31, 2009On July 20 I warned you about new federal regulations known as the "Red Flag" rules, which require businesses, including lawyers and law firms, to take pro-active measures to detect and prevent identity theft. The rules were scheduled to go into effect on August 1...
New Tennessee Legislation of Interest to Tort Lawyers - Post 2
Posted on July 30, 2009The second post in this series reports on a new law that confers immunity from civil action upon victims of crime for testimony given at offender's parole hearing unless testimony is intentionally or maliciously false and defamatory. Here is the full text of the new statute: T...
Memphis BBQ Causes Salmonella Infections
Posted on July 30, 2009For the last five or six years my friend Bill Marler, food poisoning lawyer extraordinaire, and I have worked together on food poisoning cases. Bill knows this area like the back of his hand and is widely understood to be the lawyer with the greatest expertise in this field...
Suing Drug Dealers
Posted on July 29, 2009As you would expect, the Tennessee General Assembly is not particularly fond of drug dealers. But did you know that the General Assemby had passed what they call the "Drug Dealer Liability Act?" The Act, codified at TCA 29-38-101 et seq, permits the recovery of damages caused by drug dealers...
A National Medical Safety Board?
Posted on July 29, 2009That is what Tennessee's own Jim Hall called for in today's New York Times. An excerpt from Jim's op-ed piece: Because American medicine accepts error as an inevitable consequence of treatment, our hospitals, insurers and government do little to respond to unnecessary deaths...
New Tennessee Legislation of Interest to Tort Lawyers - Post 1
Posted on July 28, 2009This post is a first in a series of posts that will address new laws passed by the 106th General Assembly and signed into law by Governor Bredesen. The posts will run two or three days per week over the next several weeks. The first post is a change to the Tennessee Peer Review Law of 1967...
Dangers Caused By Truck Drivers Who Text While Driving.
Posted on July 28, 2009Texting while driving is now illegal in Tennessee, and a study from the Virginia Tech Transportation Institute reaffirms why the law is necessary. For truck drivers, the risk of a crash or near-crash event increases by a 23.2 times as compared with non-distracted driving...
Tennessee Motor Vehicle Deaths Decrease But Still Higher Than National Average
Posted on July 27, 2009Deaths on Tennessee roads continued to decrease in 2008. A total of 1035 people were killed on Tennessee roads in 2008, down from 1211 in 2007and 1339 in 2004. Nationally, 37,261 people died in motor vehicle crashes in 2008. Tennessee deaths were 16...
Does Error of Counsel Justify Setting Aside a Default Judgment?
Posted on July 24, 2009Not in the Seventh Circuit, it doesn't. In Bakery Machinery & Fabrication, Inc. v. Traditional Baking, Inc., No 08-1967 (7th Cir. June 29, 2009) the Court of Appeals for the Seventh Circuit refused to vacate a default judgment under Rule 60(b)(6)...
Laying A Foundation to Admit a Photograph into Evidence
Posted on July 23, 2009The trial of virtually every personal injury or wrongful death case involves the use of one or more photographs. The recent decision in Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC, __ F.3d __ (2d Cir. July 6, 2009) (No. 08-0639-CV) reminds us that the failure to lay a proper foundation will result in exclusion of photographs at trial...
SVMIC - 2008 Financial Results - Part 4
Posted on July 22, 2009I have released three prior posts on the financial condition of State Volunteer Mutual Insurance Company - click here to read them: Part 1, Part 2, Part 3. The bottom line is that conservative financial management at SVMIC has permitted the company to accumulate a quarter of a billion dollars in net worth, even as the number of policyholders has declined 4% of the last year...
Justice Programs 2009
Posted on July 21, 2009Penny White, Joe Riley and I are on the road again this Fall for the 2009 Justice Programs seminars. This two-day, 15-hour is designed for Tennessee lawyers who do civil litigation. We will be in Nashville November 19 and 20, Chattanooga on December 3 and 4, Memphis on December 10 and 11, and Knoxville on December 17 and 18...
Red Flag Rules for Law Firms
Posted on July 20, 2009The agent who sells us our professional liability insurance coverage sent me this last Wednesday: On August 1, 2009, new federal regulations enforced by the FTC will go into effect; the so-called Red Flag rules, which require businesses, including lawyers and law firms, to take pro-active measures to detect and prevent identity theft...
Consent Provisions in Professional Liability Insurance Policies
Posted on July 17, 2009Last Friday a Memphis jury awarded almost $24M to a woman and her husband in a civil suit arising out of what the jury found to be medical negligence arising from the failure to promptly diagnose breast cancer. The woman is in the last weeks of her shortened life...
For Sale
Posted on July 17, 2009The American Conservative Union, the nation's oldest conservative lobbying organization, has firmly held core beliefs. Those core beliefs are apparently for sale to the highest bidder, even if the highest bidder is on the opposite side of the issue than the other potential bidder...
SVMIC - 2008 Financial Results - Part 3
Posted on July 16, 2009This is the third post about State Volunteer Mutual Insurance Company's 2008 financial results. Click on the links to see Part 1 and Part 2. New malpractice claims asserted against SVMIC insureds dropped 2.5% in 2008. The company reports that 83% of all cases were resolved in favor of it's policyholders on a company-wide basis...
SVMIC - 2008 Financial Results - Part 2
Posted on July 15, 2009Our last post discussed State Volunteer Mutual Insurance Company's $251,321,000 policyholder surplus. This post will discuss other aspects of the company's finances. As of December 31, 2008, SVMIC had total assets of $1,324,500,000 assets...
Use of the Exhibit Stamp in Adobe
Posted on July 14, 2009The Acrobat for Legal Professionals blog has a great post called "Add Dynamic Exhibit Stamps in Acrobat using a free stamp set." The electronic exhibit stamp has both a static graphic element and a changing numeric or alphabetic element and permits you to electronically stamp documents with exhibit numbers or letters...
ER Docs in Arizona Get Special Treatment in Courtrooms
Posted on July 13, 2009Torts Prof lets us know that the elected representatives in Arizona believe that ER doctors should not be held responsible for their negligence unless the patient can prove his case by clear and convincing evidence.
SVMIC - 2008 Financial Results - Part 1
Posted on July 13, 2009SVMIC continues to enjoy wonderful profitability, even as the number of physicians it insures declines. SVMIC - State Volunteer Mutual Insurance Company - is a physician-owned insurance company that was created over 30 years ago. It has grown from a company with paid-in capital of $7,500,000 to a entity with a policyholder surplus (think: net worth) of $251,321,321...
David Mills Does It Again - A Reader Supplies the Caption
Posted on July 13, 2009David Mills, appellate lawyer and cartoonist from Ohio, supplied the cartoon. A reader supplied the caption. In fact, lots of readers suggested captions, and David choose this one. I must admit that I was a fan of a caption suggested by Kpawss ("Surprisingly, a lineal descendant appeared during probate...
Thoughts About Efficiency in Law Practice
Posted on July 12, 2009For lawyers, time is money. For lawyers who charge hourly rates, inefficiency may result in more fees on the front end but will result in a clients over time. For contingent fee lawyers, efficient practice increases profitability. This blog post from Litigation Cost Control reminds us of the efficiencies that come from the use of forms and checklists...
Do You Want to Go Paperless in Your Office?
Posted on July 11, 2009Or at least move in that direction? Here is a great post from a lawyer who has figured out how to do it. An an excerpt: In the three years that I've been practicing as a solo lawyer I have been completely paperless. Before that, when I worked in a large firm, I kept the files that I worked on by myself in a completely paperless form...
Motion to Compel Defense Counsel to Wear Shoes Without Holes in the Souls
Posted on July 10, 2009You read the title correctly. Apparently Bill Bone in Florida believes that his adversary "wears shoes with holes in the soles when he is in trial." He believed that defense counsel did so "as a ruse to impress the jury and make them believe that [his adversary] is humble and simple without sophistication...
Post-Sale Duties
Posted on July 10, 2009The current Brooklyn Law Review contains this article by Ken Ross and J. David Prince provides an overview of the post-sale duty sections of the Restatement (Third) of Torts: Products Liability. The article provides an overview of the Restatement (Third)'s post-sale duty sections...
Motion to Compel Defense Counsel to Wear Shoes Without Holes in the Soles
Posted on July 10, 2009You read the title correctly. Apparently Bill Bone in Florida believes that his adversary "wears shoes with holes in the soles when he is in trial." He believed that defense counsel did so "as a ruse to impress the jury and make them believe that [his adversary] is humble and simple without sophistication...
West Virginia Rejects Claim That Ford Should Have Used Laminated Glass in Side Window
Posted on July 07, 2009The Supreme Court of Appeals of West Virginia has ruled that a products liability claim was preempted by FMVSS 205, a safety standard that it says permits vehicle manufacturers to make a choice between tempered glass and laminated glass in side windows...
Medical Research, Anyone?
Posted on July 07, 2009Here is a list of medical sites created by from Exposing Deceptive Defense Doctors by Dorothy Sims as posted here. *www.nlm.nih.gov/ This is the National Library of Medicine/National Institutes of Health, with a great search site. * www.guidelines...
Georgia Supreme Court Reverses Med Mal Verdict Because of Error in Jury Instructions
Posted on July 06, 2009Georgia has a pattern jury instruction called the "hindsight" instruction. It provides as follows: In a medical malpractice action, a defendant cannot be found negligent on the basis of an assessment of a patient's condition that only later, in hindsight, proves to be incorrect as long as the initial assessment was made in accordance with reasonable standards of medical care...
GM Allowed to Escape Responsibility to Victims in Pending Tort Cases
Posted on July 06, 2009Here is a copy of the court order in the GM bankruptcy that makes tort victims stand in line with other general creditors of the company. The discussion of successor liability issues begins on Page 50. Here is key language from Page 60 and 61: This Court fully understands the circumstances of tort victims, and the fact that if they prevail in litigation and cannot look to New GM as an additional source of recovery, they may recover only modest amounts on any allowed claims—if, as is possible, they do not have other defendants who can also pay...
A Tort Lawyer Looks at the Death of Steve McNair UPDATED
Posted on July 06, 2009Nashville is mourning the death of Steve McNair, former quarterback of the Tennessee Titans. McNair was murdered during the early morning hours of Saturday, July 4. It is not completely certain who murdered him, but news reports indicate that the police are not looking for suspects and appear to be exploring whether McNair's 20-year old girlfriend, Sahel Kazemi, killed McNair and then shot herself in the head...
A Tort Lawyer Looks at the Death of Steve McNair UPDATE NO. 2
Posted on July 06, 2009Nashville is mourning the death of Steve McNair, former quarterback of the Tennessee Titans. McNair was murdered during the early morning hours of Saturday, July 4. It is not completely certain who murdered him, but news reports indicate that the police are not looking for suspects and appear to be exploring whether McNair's 20-year old girlfriend, Sahel Kazemi, killed McNair and then shot herself in the head...
Off Topic - Palin Resigns
Posted on July 04, 2009Advice to Governor Mark Sanford: Remember the words of Elmer Fudd. "Shhh. Be vewy, vewy quiet."
Article about Requirements for Pleading Facts in Complaints
Posted on July 03, 2009Last fall I wrote about the new standard for pleading in federal court announced in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Now, a new article by Andrée Sophia Blumstein appearing in the July 2008 edition of the Tennessee Bar Journal studies Twombly in more detail and comments on the decision in Ashcroft v...
Post-Sales Duties
Posted on July 03, 2009The current Brooklyn Law Review contains this article by Ken Ross and J. David Prince provides an overview of the post-sale duty sections of the Restatement (Third) of Torts: Products Liability. The article provides an overview of the Restatement (Third)'s post-sale duty sections...
Maxwell Strikes Back
Posted on July 02, 2009Maxwell Kennerly's Litigation and Trial blog is a must-read for lawyers who practice civil litigation of almost any type. His posts are timely, thoughtful, and relevant. Take this post, "'How Other Countries Judge [Medical] Malpractice,'" By A Law Professor Who Doesn't Know Medical Malpractice Law", in which Maxwell appropriately blasts an editorial by a torts professor who needs a reality check...
GM Will Reman Liable for Future Products Claims
Posted on July 01, 2009The New York Times reports that General Motors wil not be let off the hook for future products liability claims when it emerges from bankruptcy.
Article on the New Medical Malpractice Notice and Certificate of Good Faith Legislation
Posted on July 01, 2009My article on the new medical malpractice notice and certificate of good faith legislation (which goes into effect today, July 1) made the cover of the July edition of the Tennessee Bar Journal. Here is the article. Anyone who practices in the field of medical negligence needs to become familiar with this legislation...
New Look
Posted on July 01, 2009Technical glitches added a couple days to the process, but Rob and the folks at LexBlog completed the transition to the new format yesterday. I hope you enjoy it.
Closing Argument Requires Reversal
Posted on June 30, 2009The United States Court of Appeals for the Tenth Circuit has reversed a $2.4 million jury verdict for the plaintiff because of misconduct by plaintiff's counsel during closing argument. In the words of the Court: "We are compelled to reverse and remand for a new trial because of pervasive and improper remarks by Mr...
Closing Argument Requires Reversal
Posted on June 30, 2009The United States Court of Appeals for the Tenth Circuit has reversed a $2.4 million jury verdict for the plaintiff because of misconduct by plaintiff's counsel during closing argument. In the words of the Court: "We are compelled to reverse and remand for a new trial because of pervasive and improper remarks by Mr...
"Other Bad Act" Evidence in Medical Malpractice Cases
Posted on June 29, 2009Sometimes a lawyer representing a patient in a medical malpractice trial may want to introduce evidence of "bad acts" of a health care provider or a provider's expert witness. This article from the Medical Malpractice Newsletter published by the Hinshaw & Culbertson tells us how the defense is going to attempt to keep that information from the jury.
John, Where Have You Been?
Posted on June 29, 2009Nowhere. Nowhere different, anyway. But I have not been blogging because, as you can see, the look of my blog has been changed with the assistance of the great folks at Lexblog. The transfer of information and the final set-up on the blog takes a couple days, meaning that I could not post any material whatsoever...
"Other Bad Act" Evidence in Medical Malpractice Cases
Posted on June 29, 2009Sometimes a lawyer representing a patient in a medical malpractice trial may want to introduce evidence of "bad acts" of a health care provider or a provider's expert witness. This article from the Medical Malpractice Newsletter published by the Hinshaw & Culbertson tells us how the defense is going to attempt to keep that information from the jury.
John, Where Have You Been?
Posted on June 29, 2009Nowhere. Nowhere different, anyway. But I have not been blogging because, as you can see, the look of my blog has been changed with the assistance of the great folks at Lexblog. The transfer of information and the final set-up on the blog takes a couple days, meaning that I could not post any material whatsoever...
Study on Impact of Chrysler and GM Bankruptcy on Future Wreck Victims
Posted on June 24, 2009A report from Safety Research & Strategies called "Public Safety at Risk: Bankruptcies Leave Legacy of Defects, Injuries and Deaths" projects what will happen now that there will be 30 million GM and 10 million Chrysler products still on the road after bankruptcy agreements cancel the ability for accident victims to seek compensation by suing the companies...
Study on Impact of Chrysler and GM Bankruptcy on Future Wreck Victims
Posted on June 24, 2009A report from Safety Research & Strategies called "Public Safety at Risk: Bankruptcies Leave Legacy of Defects, Injuries and Deaths" projects what will happen now that there will be 30 million GM and 10 million Chrysler products still on the road after bankruptcy agreements cancel the ability for accident victims to seek compensation by suing the companies...
Luvera on Direct Examination
Posted on June 23, 2009Paul Luvera does it again, this time with a nice post on conducting direct examinations on his blog. Plaintiff Trial Lawyer Tips An excerpt: Evidence is like an iceberg. The bottom below the surface may be enormous, but only the tip is can be seen above the water line...
ACOG Changes FHR Monitoring Guidelines
Posted on June 23, 2009From ACOG's Press Release: Refinements of the definitions, classifications, and interpretations of fetal heart rate (FHR) monitoring methods were issued today in new guidelines released by The American College of Obstetricians and Gynecologists (ACOG)...
ACOG Changes FHR Monitoring Guidelines
Posted on June 23, 2009From ACOG's Press Release: Refinements of the definitions, classifications, and interpretations of fetal heart rate (FHR) monitoring methods were issued today in new guidelines released by The American College of Obstetricians and Gynecologists (ACOG)...
Luvera on Direct Examination
Posted on June 23, 2009Paul Luvera does it again, this time with a nice post on conducting direct examinations on his blog. Plaintiff Trial Lawyer Tips An excerpt: Evidence is like an iceberg. The bottom below the surface may be enormous, but only the tip is can be seen above the water line...
Depositions of Expert Witnesses
Posted on June 22, 2009What is your opponent going to do to prepare for your expert's deposition? This article, "The Opponent's Expert: Preparing for the Most Important Deposition in the Case," 59 Fed'n Def. & Corp. Couns. Q.145 (2008), answers that question.
Depositions of Expert Witnesses
Posted on June 22, 2009What is your opponent going to do to prepare for your expert's deposition? This article, "The Opponent's Expert: Preparing for the Most Important Deposition in the Case," 59 Fed'n Def. & Corp. Couns. Q.145 (2008), answers that question.
A Wonderful Way to Spend A Saturday
Posted on June 21, 2009It doesn't sound particularly appealing. Leave Memphis Friday afternoon. Drive to Nashville. Pack a new bag. Catch a flight to Charlotte. Race through the airport from Gate E35 to B3. Catch a flight to Mrytle Beach...
A Wonderful Way to Spend A Saturday
Posted on June 21, 2009It doesn't sound particularly appealing. Leave Memphis Friday afternoon. Drive to Nashville. Pack a new bag. Catch a flight to Charlotte. Race through the airport from Gate E35 to B3. Catch a flight to Mrytle Beach...
Covenants Not to Compete
Posted on June 19, 2009Here is a link to a blog on covenants not to compete - a fascinating area of litigation. Tennessee has a lot of law in this area, and a recent Tennessee Supreme Court case on the subject was essentially reversed by a new statute. If you do this type of work you may find this blog of assistance to you...
Covenants Not to Compete
Posted on June 19, 2009Here is a link to a blog on covenants not to compete - a fascinating area of litigation. Tennessee has a lot of law in this area, and a recent Tennessee Supreme Court case on the subject was essentially reversed by a new statute. If you do this type of work you may find this blog of assistance to you...
New Business Tort Blog
Posted on June 17, 2009B2B tort litigation is a growing phenomena, as big firm lawyers start to think outside of the box. Here is a new blog dedicated to the subject -Unfair Business Practices. The blog focuses on unfair business and trade practices such as business conspiracy, breach of fiduciary duty, misappropriation of trade secrets and other proprietary information, fraud, tortious interference with contracts and other unfair business practices that are not neatly defined...
New Business Tort Blog
Posted on June 17, 2009B2B tort litigation is a growing phenomena, as big firm lawyers start to think outside of the box. Here is a new blog dedicated to the subject -Unfair Business Practices. The blog focuses on unfair business and trade practices such as business conspiracy, breach of fiduciary duty, misappropriation of trade secrets and other proprietary information, fraud, tortious interference with contracts and other unfair business practices that are not neatly defined...
More On Products Claims Against Chrysler and GM
Posted on June 16, 2009The National Law Journal has this article on the future of products liability claims against Chrysler and GM. The United States Supreme Court has not yet ruled on the petition of consumers and plaintiffs' lawyers concerning the Chrysler bankruptcy...
Bloomberg Article on Medical Liability Reform
Posted on June 16, 2009"Malpractice Lawsuits Are ‘Red Herring' in Obama Health Plan" is the title of this article from Bloomberg. Am excerpt: While Obama vowed to address physicians' malpractice worries in a speech yesterday, the annual jury awards and legal settlements involving doctors amounts to 'a drop in the bucket' in a country that spends $2...
More On Products Claims Against Chrysler and GM
Posted on June 16, 2009The National Law Journal has this article on the future of products liability claims against Chrysler and GM. The United States Supreme Court has not yet ruled on the petition of consumers and plaintiffs' lawyers concerning the Chrysler bankruptcy...
Bloomberg Article on Medical Liability Reform
Posted on June 16, 2009"Malpractice Lawsuits Are ‘Red Herring' in Obama Health Plan" is the title of this article from Bloomberg. Am excerpt: While Obama vowed to address physicians' malpractice worries in a speech yesterday, the annual jury awards and legal settlements involving doctors amounts to 'a drop in the bucket' in a country that spends $2...
NYT Reports President Is Talking About Restricting Med Mal Suits
Posted on June 15, 2009Here is the article from today's New York Times.
The T. J. Hooper Case
Posted on June 15, 2009We all read it in law school, and here it is again. The fascinating opinion by Judge Learned Hand in In re Eastern Transportation Co. (The T.J. Hooper), 60 F.2d 737 (2d Cir. 1932) reminds us that just because just an industry ignores safety practices that are readily available does not mean that due care does not require the practice...
President's Speech to the AMA
Posted on June 15, 2009Here it is. An excerpt: Now, I recognize that it will be hard to make some of these changes if doctors feel like they are constantly looking over their shoulder for fear of lawsuits. Some doctors may feel the need to order more tests and treatments to avoid being legally vulnerable...
President's Speech to the AMA
Posted on June 15, 2009Here it is. An excerpt: Now, I recognize that it will be hard to make some of these changes if doctors feel like they are constantly looking over their shoulder for fear of lawsuits. Some doctors may feel the need to order more tests and treatments to avoid being legally vulnerable...
NYT Reports President Is Talking About Restricting Med Mal Suits
Posted on June 15, 2009Here is the article from today's New York Times.
The T. J. Hooper Case
Posted on June 15, 2009We all read it in law school, and here it is again. The fascinating opinion by Judge Learned Hand in In re Eastern Transportation Co. (The T.J. Hooper), 60 F.2d 737 (2d Cir. 1932) reminds us that just because just an industry ignores safety practices that are readily available does not mean that due care does not require the practice...
Punitive Damages Study
Posted on June 12, 2009The Social Science Research Network has an article available that is of interest to tort lawyers: The Decision to Award Punitive Damages: An Empirical Study. Here is the abstract: Empirical studies have consistently shown that punitive damages are rarely awarded, with rates of about three to five percent of plaintiff trial wins...
UPDATE on Medical Malpractice Notice and Certificate of Good Faith Statute
Posted on June 12, 2009SB 2109 passed the Senate at 11:36 on June 4 and is now on its way to the Governor's desk. The Bill passed the House (HB2233) in May. UPDATE: The Governor signed the legislation on June 11. Click here for information on the June 15 seminar on this important bill...
UPDATE on Medical Malpractice Notice and Certificate of Good Faith Statute
Posted on June 12, 2009SB 2109 passed the Senate at 11:36 on June 4 and is now on its way to the Governor's desk. The Bill passed the House (HB2233) in May. UPDATE: The Governor signed the legislation on June 11. Click here for information on the June 15 seminar on this important bill...
Punitive Damages Study
Posted on June 12, 2009The Social Science Research Network has an article available that is of interest to tort lawyers: The Decision to Award Punitive Damages: An Empirical Study. Here is the abstract: Empirical studies have consistently shown that punitive damages are rarely awarded, with rates of about three to five percent of plaintiff trial wins...
Thinking About Contingent Fees
Posted on June 11, 2009Maxwell Kennerly has written an excellent post titled "Contingent Fee Business Lawyers as Venture Capitalists" at his Litigation and Trial blog. An excerpt: Day in and day out, the primary thing a contingent fee law firm does is spend lots of money...
Thinking About Contingent Fees
Posted on June 11, 2009Maxwell Kennerly has written an excellent post titled "Contingent Fee Business Lawyers as Venture Capitalists" at his Litigation and Trial blog. An excerpt: Day in and day out, the primary thing a contingent fee law firm does is spend lots of money...
Invest in Litigation?
Posted on June 10, 2009Yep. That is what Richard Fields is doing. He is the chief executive of Juridica Capital Management, an organization which runs a fund that invests in one side of a lawsuit in exchange for a share of any winnings. The company invests in commercial litigation...
Invest in Litigation?
Posted on June 10, 2009Yep. That is what Richard Fields is doing. He is the chief executive of Juridica Capital Management, an organization which runs a fund that invests in one side of a lawsuit in exchange for a share of any winnings. The company invests in commercial litigation...
New Tennessee Law Blog
Posted on June 09, 2009There is a new blog in town - the Tennessee Insurance Litigation Blog. The blog is authored by Parks Chastain and Brandon McWherter. Parks typically represents insurance companies and Brandon typically represents policyholders. Great idea, gentlemen...
Seminar on New Medical Malpractice Legislation
Posted on June 09, 2009The Tennessee Bar Association is sponsoring a seminar to educate lawyers on the new medical malpractice statute passed by the Senate on June 4, 2008. If signed by the Governor, and there is no reason to believe that he will not sign the bill, the legislation makes major changes in medical malpractice procedural law...
Seminar on New Medical Malpractice Legislation
Posted on June 09, 2009The Tennessee Bar Association is sponsoring a seminar to educate lawyers on the new medical malpractice statute passed by the Senate on June 4, 2008. If signed by the Governor, and there is no reason to believe that he will not sign the bill, the legislation makes major changes in medical malpractice procedural law...
Lawyer Questions Experience of Some Lawyers Who Advertise
Posted on June 08, 2009Ken Shigley from Atlanta offers an interesting post concerning his research into and thoughts about some of the lawyers who advertise in his community. He starts his post with these words: As a serious personal injury attorney in Atlanta, Georgia, I am frankly embarrassed by the inundation of billboards and TV ads for personal injury lawyers who have little respect within the profession and seldom if ever set foot in a courtroom...
Proposal to Change Tennessee Ethics Rules
Posted on June 08, 2009The Tennessee Bar Association has filed proposed changes to the ethics rules governing the conduct of Tennessee lawyers. The project represents the first effect to change the rules since tan entire new code was adopted in 2002. Read the petition of the TBA here...
SCOTUS Rules That W.Va. Chief Justice Should Have Recused Himself
Posted on June 08, 2009The Supreme Court of the United States has ruled that the Chief Justice of the West Virginia Supreme Court should have recused himself in a case involving the company of a man who ran $3,000,000 of ads in favor of the judge's election. Read the opinions here.
Seminar on New Medical Malpractice Litigation
Posted on June 07, 2009The Tennessee Bar Association is sponsoring a seminar to educate lawyers on the new medical malpractice statute passed by the Senate earlier today. If signed by the Governor, and there is no reason to believe that he will not sign the bill, the legislation makes major changes in medical malpractice procedural law...
Effect of Tort Reform Legislation
Posted on June 06, 2009Walter Olson at Point of Law shares a study from the Pacific Research Institute on the effect of various tort reforms. The study, was authored by Nicole V. Crain, W. Mark Crain, Lawrence J. McQuillan, and Hovannes Abramyan, and is titled "Tort Law Tally: How State Tort reforms affect Tort Losses and Tort Insurance Premiums"...
Medical Malpractice Filings Dropping
Posted on June 05, 2009The requirement of pre-notice and a certificate of good faith (T.C.A. Sec. 29-26-121 and 122) has had a significant effect on filings of medical malpractice cases. From October 1, 2008 (when the new law came into effect) until April 30, 2009) there were only 111 medical malpractice cases filed in the entire state...
More on GM and Chrysler Products Claims
Posted on June 04, 2009Here is an article from The Hill that gives more information on how existing products liability claims against GM and Chrysler will be handled. Bottom line: claimants will be unsecured creditors, and will be thrown into the pot with all of the other unsecured creditors...
SCOTUS Reverses Tennessee FELA Case
Posted on June 04, 2009The U.S. Supreme Court reversed a Tennessee Court of Appeals case on the proper instruction to the jury in an FELA case when the plaintiff is seeking damages for fear of developing lung cancer. The worker alleged that his work exposed him to asbestos, which caused asbestosis...
Seminar on New Medical Malpractice Legislation
Posted on June 04, 2009The Tennessee Bar Association is sponsoring a seminar to educate lawyers on the new medical malpractice statute passed by the Senate earlier today. If signed by the Governor, and there is no reason to believe that he will not sign the bill, the legislation makes major changes in medical malpractice procedural law...
New Medical Malpractice Notice and Certificate of Good Faith Bill Passes Senate
Posted on June 04, 2009SB 2109 passed the Senate at 11:36 and is now on its way to the Governor's desk. The Bill passed the House (HB2233) in May. There is no indication that the Governor will not sign the legislation. The bill dramatically changes the law that came into effect just last October 1, and impacts both the pre-suit notice and the certificate of merit provisions...
Man Sues Strip Joint
Posted on June 04, 2009Stripper allegedly kicks patron in the head. Strip joint manager says dancer kicked him after he "violently slapped ... her buttocks." The stripper did not return calls to WPTV, the Florida TV station that reported this story...
Victims' Lawyers (and Others) Discuss GM and Chrysler Products Claims
Posted on June 03, 2009Here is an interview with two plaintiffs' lawyers who are actively involved in seeking monies for tort claimants who have claims against Chrysler and General Motors. I have also included an article from www.HispanicBusiness.com that says "Fiat will be protected from any product liability lawsuits arising from claims of flaws in Chrysler vehicles sold before the sale's closing later this month...
Chrysler Sale Bars Future Tort Claims
Posted on June 02, 2009I have read Judge Gonzalez's Order of June 1 concerning the sale of substantially all of the assets of Chrysler to Fiat, and it certainly appears to me that the sale will cut off future products liability claims. Here is the key language Pages 42 - 44 of the Court's Order...
Manual for Complex Litigation
Posted on June 01, 2009At 819 pages, the Manual for Complex Litigation, Fourth is not for vacation reading at the beach. It is for lawyers who have complex litigation. It is a gold mine of information to streamline the litigation of cases with multiple parties, complex issues, and the like.
June 2009 Edition of the Tennessee Trial Law Report Available
Posted on May 31, 2009The June 2009 edition of the Tennessee Trial Law Report should be arriving in the mailboxes of our subscribers on Tuesday, June 2. The Tennessee Trial Law Report is the only newsletter in Tennessee written to meet the complete needs of the tort law practitioner...
Breast Cancer Cases
Posted on May 29, 2009A publication of The Doctors Company ("We were founded by doctors, for doctors.") lists 39 ways for doctors to get sued for for not diagnosing breast cancer or not properly treating it when it has been diagnosed. Here it is...
Trouble With Powerpoint?
Posted on May 28, 2009I came across www.PowerPointforCourt.com, a website that offers a product to teach lawyers and their support staff how to effectively use Powerpoint. The price? $89 for a download. Here are the chapter headings: Introduction to Courtroom Technology Utilizing Synchronized Deposition Videos Formatting the Master Slide Header and Footer Custom Slide Backgrounds - Inserting Your Logo Inserting Video Re-Sizing Video Linking Within a Presentation Opening a PDF in PowerPoint Opening a Web Page In PowerPoint SmartArt Graphics Text Links Grouping Ordering or Layers The Impeachment Machine (Strategies for Using Video) Creating Timelines Cast of Character Exhibits Bullet Point Summation Day in the Life Presentations Presentation Tips Image Preparation Working with Audio Creating an Inhouse Graphic Design Department Flashing Flash (Inserting in Presentation) Choosing the Right Equipment The Importance of an Index Page Handouts are Essential (General Presentation) How to Capture and Use Anything (digital) Creating Legal Illustrations for use in Court Crime Scene Layouts Links to Valuable Resources I have not purchased this product, but am curious to learn if any readers have...
Cert Petition Denied in Tennessee Products Case
Posted on May 27, 2009The United States Supreme Court denied cert in Flax v. DaimlerChrysler Corporation, the products liability, punitive damages, and negligent infliction of the emotional distress case decided by the Tennessee Supreme Court last year. Here is my post from last July on the decision by the Tennessee court...
Unusual Incident Reporting in Tennessee
Posted on May 26, 2009Last year I wrote about the Tennessee Department of Commerce and Insurance's 2008 Medical Malpractice Claims Report. The report revealed data from medical malpractice cases settled and tried in Tennessee in calendar year 2007. The numbers: Total judgments for plaintiffs 2007 7 Total settlements 2007 492 Cases Dismissed With No Payment 2007 2238 (plus another 306 claims dismissed on defense verdicts for a total of 2544) That is interesting, but wouldn't it be nice to know how much malpractice occurred? We know that approximately 2000 people die in Tennessee hospitals each year as a result of medical malpractice, but data on out-of-hospital deaths and data on injuries is hard to find...
Helping Your Clients Understand Ad Damnum Provisions
Posted on May 22, 2009"I've got a $1,000,000 lawsuit." No - you have a lawsuit with a $1,000,000 ad damnum. There is a huge difference between the two. Tennessee law requires an ad damnum in all cases except medical malpractice cases. An ad damnum must be stated in the initial complaint only in products liability cases; different judges impose different deadlines on when a specific ad damnum must be stated in other types of cases...
"Diagnosis and Treatment of Acute Pulmonary Embolism"
Posted on May 21, 2009On Tuesday I posted David B. Troxel, MD's article in The Doctor's Advocate about VTE. Today, I include another article by the same doctor - this one about diagnosis and treatment of PE. Here it is.
Are iPhones the Standard of Care?
Posted on May 20, 2009To be precise, I am not talking about iPhones. I am talking about the apps for iPhones. There are hundreds and hundreds of iPhone apps for health care providers that permit one to help formulate a differential diagnosis, check for drug-drug interactions, or identify medications...
Counting Blessings
Posted on May 19, 2009Last night at about 10:45 EDT I had to occasion to start counting blessings. My advancing age means I do this more and more, and it also causes me to realize that I should have counted those blessings more frequently in years past ...
"Venous Thromboembolism--Risk Factors, Prevention, and Diagnosis"
Posted on May 19, 2009David B. Troxel, MD of the Doctors Company has written a great article about VTE inThe Doctor's Advocate.. The article reviews the risk factors for VTE, the prevention of VTE, and the diagnosis of DVT and includes a reference to the American College of Chest Physicians' guidelines...
Federal Rule of Evidence 502
Posted on May 18, 2009On September 28, 2008 FRE 502 become applicable in federal court. The rule provides that under certain circumstances the disclosure of attorney-client material and work product material does not constitute a waiver. Read the full rule here...
Tort Cases From the Past - Palsgraf
Posted on May 15, 2009Last Monday I referred to the Palsgraf opinion and took the opportunity to re-read it. I suggest you do the same. The dispute between Justice Cardozo and Justice Andrews lives on. Read this and tell me who could have written the exact same words almost 100 years later: The proposition is this...
Sanctions for Spoliation in Federal Court
Posted on May 14, 2009The United States Court of Appeals for the Sixth Circuit recently ruled that federal law applies to determination what sanctions should be available for relief of spoiled evidence in federal question cases. The en banc decision reversed precedent and brought the circuit in line with other appellate courts...
SVMIC Supplies Us With Surgical Checklist
Posted on May 13, 2009SVMIC, the medical malpractice insurer owned by doctors for doctors, has published information about a seminar it offered to its insureds addressing the issue of surgical checklists. This is how SVMIC describes the seminar it called "'Applied Aviation Safety Practices for Surgeons and Anesthesiologists:' The basic premise of these seminars was that human errors, often supported by poorly designed systems, are the primary cause of preventable patient deaths and injuries...
Download a Free Copy of Trial Law Report - Tennessee Tort Law Edition
Posted on May 12, 2009Every month I let you know that a new edition of our newsletter - Trial Law Report - Tennessee Tort Law Edition - is in the mail to our subscribers. This month, we are making a free copy available for downloading by each of you, the loyal readers of this blog...
That Crazy Causation Element
Posted on May 11, 2009"Yeah, the facts demonstrate a Shoney's buffet of negligence, but there is no proof that any of that negligence caused any harm. So what?" This case out of Illinois is a classic example. Russell was found severely injured at the bottom of some steps...
Tennessee Public Acts
Posted on May 07, 2009Westlaw charges you for looking at the language of a public act after it has been codified. The Tennessee Secretary of State has the language of the public act for free at this site. The site includes public acts back to 1997.
TBA Journal - Recreation Limits Litigation
Posted on May 06, 2009I write a quarterly column on tort law for the Tennessee Bar Journal. The column for the May edition of the publication discusses Tennessee's recreational use statute, Tenn. Code Ann. §70-7-101 et seq, An excerpt: The Tennessee Supreme Court has interpreted the recreational use statute as one that gives rise to a defense to liability that requires a three-pronged analysis to determine the applicability of the statute: '(1) is the defendant a ‘landowner' under the statute; (2) is the activity alleged a recreational activity as defined by the statute; and if so, (3) are any of the statutory exceptions or limitations to the immunity defense applicable?' [ Footnote omitted...
Slip and Fall Claims
Posted on May 05, 2009CNA has issued a white paper titled "Slip and Fall Control Techniques for Commercial Real Estate Owners." The report indicates that more than one million people are injured each year in slip or trip and fall incidents and 16,000 people die from falls...
Medical Record-Keeping
Posted on May 04, 2009The Doctors Company, a medical malpractice insurer, has published this article about keeping medical records. An excerpt: The following entries should appear in the office or hospital records of each patient: Results of a patient's physical examination, specifically noting the absence of abnormality...
May 2009 Edition of the Tennessee Trial Law Report Available
Posted on May 03, 2009The May 2009 edition of the Tennessee Trial Law Report should be arriving in the mailboxes of our subscribers on Monday May 4. The Tennessee Trial Law Report is the only newsletter in Tennessee written to meet the complete needs of the tort law practitioner...
Chrylser's Bankruptcy Filing - A Tort Lawyer's Thoughts
Posted on May 01, 2009If you are breathing and can read, you know that Chrysler has filed a Chapter 11 bankruptcy petition. I am not a bankruptcy lawyer. I am not a corporate lawyer. But the filing has some immediate consequences readily apparent to the reasonably prudent tort lawyer...
Can A Podiatrist Give Causation Testimony?
Posted on April 30, 2009A Virginia trial judge refused to allow a podiatrist to give causation testimony in a FELA case where a railroad worker alleged his foot problems were caused by conditions in the workplace. The Virginia Supreme Court has agreed to hear the case...
Thanks to Lexmonitor
Posted on April 30, 2009A heartfelt thanks to Lexmonitor, a daily review of law blogs and journals, for these kind words about my post discussing testimony by podiatrists. Tennessee injury lawyer John Day has been blogging for years, and his posts display a keen knowledge of what makes a blog consistently readable and valuable to your readership...
Work Life Expectancy Tables
Posted on April 29, 2009Economists in personal injury cases and wrongful death cases often consider work life expectancy tables in calculating future economic losses. As explained on this website, "[m]any laypersons (and some experts) assume that [worklife expectancy] is the number of years until the person turns 65, the historic age for full social security retirement...
Chamber of Commerce At the Movies
Posted on April 28, 2009According to the Wall Street Journal Law Blog, the Chamber of Commerce is going to start running short films before feature films in movie theaters in the Washington, D.C,area. The films "tell a story of supposed 'Lawsuit Abuse' — cases in which people were allegedly dragged into the legal system with the filing of a frivolous lawsuit...
Sixth Circuit Issues Opinion of Expert Testimony
Posted on April 28, 2009The Court of Appeals for the Sixth Circuit has issued an opinion upholding the admissibility of an medical doctor's opinion on causation based on application of traditional differential diagnosis theory. In Best v. Lowe's Home Centers, Inc...
Malpractice Concerning Pap Smears
Posted on April 27, 2009One medical malpractice insurer, The Doctors Company, has an interesting article on medical malpractice claims concerning pap smears. Here is a excerpt from the article that discusses the scope of the problem: To put the potential magnitude of this problem in perspective, a College of American Pathologists (CAP) study of the five-year 'look-back' at previous negative Pap smears following the diagnosis of HSIL/carcinoma found that 10 percent of prior smears were false negatives for SIL/carcinoma...
Was Gov. Palin Advising a Miss USA Contestant?
Posted on April 25, 2009Ms. Arizona was asked a question about universal health care during her Miss USA pageant interview Her response reminded me the frequent, mindless sound bites offered by the 2008 GOP candidate for Vice President of the United States...
Tennessee Ranks #40 in Doctor Discipline
Posted on April 24, 2009Public Citizen ranks Tennessee 40th in its 2008 ranking of serious doctor disciplinary actions taken by state medical licensing boards. The Tennessee board took a total of 40 serious disciplinary actions against the 18,137 doctors in Tennessee, or a total of 2...
Medical Helicopter Crashes
Posted on April 23, 2009The Wall Street Journal has been writing a series of articles about crashes of medical helicopters. A total of 13 crashes took 29 lives in 2008. This crashes can give rise to several potential types of claims. The patient has a potential claim, assuming he or she can prove that there was negligence in the operation or maintenance of the helicopter...
Prescribing Drugs for Off-Label Use
Posted on April 22, 2009Many of us know that doctors prescribe drugs for uses other than those approved by the FDA. This article discusses off-label drug prescribing and suggests that physicians who prescribe a drug for an off-label use follow the following steps to obtain informed consent: a statement that the off-label use is an 'experimental use' so all the possible side effects and complications are not known; a list of the common and/or known risks and complications with use of the medication; a statement that the details of the treatment have been fully explained in lay terms or in terms that are easily understood by the patient; a statement that no guarantees about the results of the medication are given; and a statement that the patient is not required to take the medication...
Expert Testimony Allowed on the Issue of Recklessness in Medical Negligence Case
Posted on April 20, 2009The Idaho Supreme Court has permitted an expert to opine that two defendants in a medical negligence case engaged in not just negligent but reckless conduct. In Jones v. Crawford, 2009 Opinion 53 (Idaho S. Ct. April 8, 2009), a defendant appealed from an adverse jury verdict in a wrongful death case...
Preparing the Witness for Deposition - From the Perspective of the Defense
Posted on April 17, 2009Evan Schaeffer at The Trial Practice Tips Weblog tracked down an article titled "Preparing A Witness for a Successful Deposition" written by Matt Keenan, a defense lawyer with Shook, Hardy and Bacon in Kansas City. An excerpt: In my 20-some years of working with company witnesses as part of the discovery process, I've learned that the prospects of a deposition can stress even the most accomplished corporate executive...
Subjective Medical Findings
Posted on April 16, 2009Did you know that there is a statute that expressly permits physicians to base their opinions on subjective complaints? Here it is: T.C.A.Sec. 24-7-115 "In the trial of any civil suit, there shall be received in evidence if offered on behalf of any party thereto, opinions as to medical findings as a result of treatment or examination of the party, whether such opinions are based on subjective or objective findings; provided such opinions are those of persons otherwise qualified as medical experts...
"Preparing for the Video Deposition"
Posted on April 15, 2009Yesterday I mentioned that James Publishing Company's website includes excerpts of certain of its books. I thought that the excerpt I referred to yesterday was so valuable that it was worth another post, so here is an excerpt from Section 439 of "How to Prepare for, Take and Use a Deposition" by Daniel P...
"Using A Checklist for Witness Preparation"
Posted on April 14, 2009James Publishing Company's website includes excerpts of certain of its books. Here is an excerpt from Section 433 of "How to Prepare for, Take and Use a Deposition" by Daniel P. Dain. §433 Using a Checklist for Witness Preparation Some lawyers prefer to go through an extensive checklist of points for discussion with their witness...
David Mills' Courtoon Caption Contest Winner
Posted on April 13, 2009David Mills, lawyer and cartoonist, held a contest to determine the best caption for this cartoon. The winning caption appears below. I submitted several entries, including "'Yes, I made $4M last year testifying for Ford, but that does not influence my professional judgment," and "demonstrative evidence is essential when proving loss of consortium for the single male...
Never Events
Posted on April 10, 2009Here are the 28 medical events that the National Quality Forum says should never occur: Surgical Events Surgery performed on the wrong body part Surgery performed on the wrong patient Wrong surgical procedure on a patient Retention of a foreign object in a patient after surgery or other procedure Intraoperative or immediately post-operative death in a normal healthy patient Product or Device Events Patient death or serious disability associated with the use of contaminated drugs, devices, or biologics provided by the healthcare facility Patient death or serious disability associated with the use or function of a device in patient care in which the device is used or functions other than as intended Patient death or serious disability associated with intravascular air embolism that occurs while being cared for in a healthcare facility Patient Protection Events Infant discharged to the wrong person Patient death or serious disability associated with patient disappearance for more than four hours Patient suicide, or attempted suicide resulting in serious disability, while being cared for in a healthcare facility Care Management Events Patient death or serious disability associated with a medication error Patient death or serious disability associated with a hemolytic reaction due to the administration of ABO-incompatible blood or blood products (transfusion of the wrong blood type) Maternal death or serious disability associated with labor or delivery on a low-risk pregnancy while being cared for in a healthcare facility Patient death or serious disability associated with hypoglycemia, the onset of which occurs while the patient is being cared for in a healthcare facility Death or serious disability (kernicterus) associated with failure to identify and treat jaundice in newborns Stage 3 or 4 pressure ulcers acquired after admission to a healthcare facility Patient death or serious disability due to spinal manipulative therapy Environmental Events Patient death or serious disability associated with an electric shock while being cared for in a healthcare facility Any incident in which a line designated for oxygen or other gas to be delivered to a patient contains the wrong gas or is contaminated by toxic substances Patient death or serious disability associated with a burn incurred from any source while being cared for in a healthcare facility Patient death associated with a fall while being cared for in a healthcare facility Patient death or serious disability associated with the use of restraints or bedrails while being cared for in a healthcare facility Criminal Events Any instance of care ordered by or provided by someone impersonating a physician, nurse, pharmacist, or other licensed healthcare provider Abduction of a patient of any age Sexual assault on a patient within or on the grounds of a healthcare facility Death or significant injury of a patient or staff member resulting from a physical assault (i...
Trial Lawyer's Prayer
Posted on April 09, 2009I didn't write the Trial Lawyer's Prayer, but I wish I had. Read more of Evan Schaeffer's stuff by clicking here. Trial Lawyer's Prayer, by Evan Schaeffer Dear Lord: Here I am, back in Church. It's been awhile, I freely admit, and I apologize for the long string of Sunday absences, but as you know, the demands of my busy practice often require me to work all weekend, Sundays included...
Is that Deposition Necessary?
Posted on April 08, 2009I brought a couple posts from the Lean and Mean Litigation Blog to your attention back in December. These posts discussed the need of formulating a discovery plan before taking depositions. Here is a related article titled "Mastering the Blind Cross-Examination" written by Mark A...
Practice Tip - Look to the Law First
Posted on April 07, 2009Here is a tip that will improve the quality of your law practice and your life: look at the law first. Oh, things a different in the run of the mill auto case or other cases that you routinely handle. And it is different if you have recently handled a case that presented the same issues...
Off Topic - Roundball
Posted on April 07, 2009It is 1:45 AM. I just returned to the Carolina Inn after spending a little time on Franklin Street in downtown Chapel Hill, NC. My daughter and I had the pleasure of being in the Dean Dome and watching the Tar Heels win their 5th National Championship...
Genetic Defect in Sperm Gives Rise to Products Claim
Posted on April 06, 2009A mentally retarded 13-year old girl has been permitted to purse a claim against a sperm bank that sold her mother sperm 14 years ago. She has claimed that the sperm had a genetic defect that caused her mental retardation. The case is Donovan v...
The Alleged IME Exposed
Posted on April 03, 2009IME. Independent Medical Exam. And just how independent is the so-called IME? The New York Times has looked behind the curtain in New York, and it doesn't like what it saw. Here is an excerpt: "'If you did a truly pure report,' [the IME doctor] said later in an interview, 'you'd be out on your ears and the insurers wouldn't pay for it...
April Edition of the Tennessee Trial Law Report
Posted on April 02, 2009The April 2009 edition of the Tennessee Trial Law Report is in the mail. This edition includes a summary of 11 different cases addressing various aspects of the law of torts, civil procedure, evidence and trial as decided by Tennessee appellate courts between February 15 and March 15, 2009...
Off Topic - Photos From Memphis, April 4, 1968
Posted on April 02, 2009I just saw these previously unreleased photos from Life magazine that were taken on the day that Martin Luther King was shot. Most of the photos were taken at the Lorraine Motel, the site of the murder. They were so powerful I felt that I should share them with you...
"They Killed My Patient. Then They Tried to Hide It."
Posted on April 01, 2009These are not the words of some crazy plaintiff's lawyer. These are the words of a doctor. Dr. Amy Tuteur at Harvard. An excerpt: "If I had been angry about what happened to the patient, I was even angrier after learning of the deception...
Take A Look At Your Fee Agreement
Posted on April 01, 2009The lawyer in this case was not permitted to collect expert witness expenses from his client after an unsuccessful med mal case because the fee agreement with the client said only that the client "may" be responsible for such expenses. What does your fee agreement provide?
Lawyer Shares Writing Tips
Posted on March 30, 2009Raymond P. Ward writes "the (new) legal writer," where he shares his knowledge of the art of legal writing. In this post he shares an excellent article that helps us understand techniques for emphasis and de-emphasis in our our writing...
Standard for Recusal of Judge
Posted on March 27, 2009What is the standard to be applied when a judge faces a recusal motion? The Tennessee Supreme Court answered that question yesterday in Bean v. Bailey, No. E2007-02540-SC-S10-CV (Tenn. Mar. 26, 2009). Here is the standard: a recusal motion should be granted when 'the judge has any doubt as to his or her ability to preside impartially in the case' or '‘when a person of ordinary prudence in the judge's position, knowing all of the facts known to the judge, would find a reasonable basis for questioning the judge's impartiality...
Attorney General's Opinion on Effect of Expiration of Judicial Selection Commission
Posted on March 27, 2009The Judicial Selection Commission and the Judicial Evaluation Commission are in a wind-up period after the General Assembly let them die last year. (I serve on the later commission as an appointed of former Lt. Governor John S. Wilder...
Structured Settlements Are Up
Posted on March 26, 2009Structured settlements were up 25% in the 4th quarter of 2008 (compared with the previous quarter), and totaled nearly $1.8 billion, according to this article in the National Law Journal. The article relates the increase to the economic turmoil we have been experiencing...
"Dealing with the Difficult Adversary"
Posted on March 26, 2009Here is an interesting article from the ABA Section of Litigation on the issue of handling the difficult adversary lawyer. We have all been there. Here is a description of a type of lawyer each of us has seen: The Bully. Nearly all difficult adversaries exhibit bullying behavior...
Don't Make This Argument
Posted on March 26, 2009I argued a medical malpractice case before the Tennessee Court of Appeals today. Regular readers know that we prevailed in a med mal case in Maury County last year after a thirteen-day jury trial. The case has been resolved as to all defendants but one, the ER doctor, and it was that case that was set for oral argument today...
Lawyer Sued By Non-Client Over Statute of Limitations "Advice"
Posted on March 25, 2009Plaintiff talked to lawyer (later the defendant) about a potential car wreck case. The lawyer allegedly gave the plaintiff wrong information about the statute of limitations applicable to the claim. Plaintiff's car wreck case was dismissed as time-barred...
ACTL Releases Report on Discovery
Posted on March 24, 2009The American College of Trial Lawyers has released a report examining the role of discovery in the civil justice system. Predictably, the report concludes that the system is in need of repair, but the proposed fixes are bound to create controversy...
Lawyer Sanctioned in Fee Dispute
Posted on March 24, 2009Keeping contemporaneous time records in cases where fee-shifting is allowed just makes sense. Not keeping such records does not make sense. And, if the allegations against one attorney are correct, a lack of candor about whether such records were kept can cause a big, expensive mess...
Neuro Linguistic Programming
Posted on March 23, 2009Paul Luvera has written an interesting post on neuro linguistic programming. Those of you who have studied concepts such as mirroring and anchoring have explored some of the concepts that make up this field as applied to our craft. The Oxford English Dictionary defines NLP as "a model of interpersonal communication chiefly concerned with the relationship between successful patterns of behaviour and the subjective experiences (esp...
A Look Back: Senator Frist and Terri Schiavo
Posted on March 20, 2009It was four years ago today that I wrote about the ability of Senator Bill Frist to make a medical diagnosis via videotape. Here is my follow-up post from June 16, 2005, written after the release of Ms. Schiavo's autopsy. Did Dr. Frist's videotape diagnosis cost him a shot at the presidency? That is a ough question...
Pleading With Particularity
Posted on March 19, 2009The rules of civil procedure in Tennessee ordinarily require that a plaintiff make a "short, plain statement.." There is an exception - Rule 9 of the TRCP requires pleading with particularity when fraud or mistake are alleged. Nothwithstanding the general rule, some people believe that more is better...
Free Research!
Posted on March 18, 2009Are you familiar with JD Supra? It is a website that contains thousands of legal documents prepared by lawyers around the country. You can search by key word, locate a document relevant to your issue, and use to short-cut your research time...
New Rules Adopted by General Assembly
Posted on March 17, 2009The Tennessee General Assembly has passed resolutions approving the rule changes proposed by the Tennessee Supreme Court. The rule changes will be effective July 1, 2009. Here is a brief summary: Civil Procedure: There are changes to 11 different rules or comments on rules - Rule 1, 8, 12, 23, 34, 45, 51, 52, 55, 60 and 65...
Birthday of William L. Prosser
Posted on March 16, 2009Yesterday (March 15) was the 111th birthday of William L. Prosser, author of the torts text used by most of us in law school and Reporter for the Restatement (Second) of Torts.
Manual on Uniform Traffic Control Devices
Posted on March 16, 2009The Manual on Uniform Traffic Control Devices defines the standards used by road managers and contractors nationwide to install and maintain traffic control devices on all streets and highways. The MUTCD is published by the Federal Highway Administration (FHWA) under 23 Code of Federal Regulations (CFR), Part 655, Subpart F...
A Look Back: Sunday Spoof of the Past
Posted on March 15, 2009President Obama hasn't been a resident at the White House so long that we forget how President Bush gave us ammo for our occasional Sunday Spoof. Here is one from February 5, 2006 titled "President Bush: Lawyers to Blame for Lack of Krispy Kreme Stores...
For Consumers: What To Do If You Are Solicited By A Lawyer
Posted on March 12, 2009Ken Shigley at the Atlanta Injury Law Blog wrote this interesting post where he advises consumers who have suffered a tragic accident what they should do if they are solicited by lawyer. Ken offers this advice: If you are solicited about your injury or death case, you may consider doing the following: Immediately call the General Counsel of the State Bar and report the improper solicitation...
Off Topic - Should Obama Get Credit for Yesterday's Market Increase?
Posted on March 11, 2009All weekend I heard the drone of certain business reporters and various members of the Republican Party that President Obama was responsible for the declines in the stock market over the last six weeks. Well, the market went up 5.8% yesterday...
Looking Behind the Curtain
Posted on March 10, 2009Both the federal courts and Tennessee state courts have strict rules about the types of inquiry that can be made into a jury's verdict. The general rules for impeaching a jury verdict are set forth in Rule 606(b) of the rules of both systems and in a relatively few number of cases...
Nashville Scene Speaks Out Against Efforts by Nursing Homes to Limit Liability for Malpractice
Posted on March 10, 2009An article by Jeff Woods at Nashville Scene: The nursing home industry is back at the legislature this session demanding a law to cap its liability in Tennessee courts for neglecting and abusing residents. That's even though a legislative study committee, which met once after last year's bill failed, decided more time is needed to write balanced legislation...
Medical Malpractice Filings Down - New Statutes Reducing Number of Lawsuits
Posted on March 10, 2009We have some preliminary data on the number of medical malpractice case filings in certain counties since the October 1, 2009 effective date of the medical malpractice notice and certificate of good faith statutes. One new statute requires that actual notice be given to defendants in med mal cases before a lawsuit is filed...
Defense Firm To Be Penalized for Fraudulent Removals?
Posted on March 09, 2009A defense firm has been threatened with severe sanctions for allegedly engaging in a pattern of fraudulently removing cases from state court to federal court in Louisiana. Sanctions on the table? Not only a financial penalty but also also barring members of the firm from practicing in federal court...
Practice Guidelines: Obstetric Anesthesia
Posted on March 07, 2009Here is the most recent version of the practice guidelines for obstetric anesthesia as prepared by a task force of the American Society of Anesthesiologists.
Mild Traumatic Brain Injury in the ER
Posted on February 26, 2009The American College of Emergency Physicians has released a new clinical policy called "Clinical Policy: Neuroimaging and Decisionmaking in Adult Mild Traumatic Brain Injury in the Acute Setting."
Amusement Parks, Carnivals, and Carnies
Posted on February 25, 2009I grew up in Spencer, Wisconsin, a village of about 1000 (less in the 1960 census, more in the 1970 census) in North Central Wisconsin. The closest city was Marshfield, at eight miles to the south on Highway 13, which at the time had about 15,000 people, a J...
Do You Want to Start Your Own Firm?
Posted on February 24, 2009I admit it: I am a fan of the Wall Street Journal. I have read it almost every week day since I was 19, and actually got chill bumps when they started a Saturday edition a couple of years ago. The editorial page makes me mad as hell every morning, but quite frankly I think it is important to get mad as hell about something every single day...
Has Hill v. NHC Been Settled?
Posted on February 23, 2009I heard a rumor that the appeal in Hill v. NHC Healthcare/Nashville,LLC, M2005-01818-COA-R30-CV, (Tenn. Ct. App. April 30, 2008) (Rule 11 granted Aug. 25, 2008) has been dismissed. This important opinion held that the defendant nursing home's arbitration clause was unconscionable as a matter of law...
Has Hill v. NHC Been Settled? UPDATE
Posted on February 23, 2009I heard a rumor that the appeal in Hill v. NHC Healthcare/Nashville,LLC, M2005-01818-COA-R30-CV, (Tenn. Ct. App. April 30, 2008) (Rule 11 granted Aug. 25, 2008) has been dismissed. This important opinion held that the defendant nursing home's arbitration clause was unconscionable as a matter of law...
Impeachment by Contradiction
Posted on February 21, 2009How do you impeach by contradiction? The Federal Evidence Review Blog has a fine summary of a recent case from the Third Circuit that provides a “textbook example” of how one sets up an impeachment by contradiction and how the impeachment evidence comes before the jury even though it is not otherwise admissible...
Avoiding Malpractice - Tips for Lawyers
Posted on February 20, 2009The American Bar Association has a nice paper titled "The Top Ten Malpractice Traps and How to Avoid Them." The paper is excerpted from "Desk Guide Legal Malpractice." Not all of the "traps" are applicable to those who do tort work on a full-time basis, but there is a lot to be learned from this 11-page document...
Ruining Depositions - Part 3 of 3
Posted on February 19, 2009Evan Schaeffer from St. Louis has two blogs, The Legal Underground and The Trial Practice Tips Weblog. He has written three posts on the latter titled "15 Ways to Ruin a Deposition." Here is his latest and last post (Part 3) on the subject...
Peanut Butter and Peanut Recall List
Posted on February 18, 2009Here is a list of the peanut and peanut butter products that have been recalled.
Fire in the Operating Room
Posted on February 18, 2009The February 18, 2009 edition of The Wall Street Journal has an interesting article about fires in the operating room, which happen approximately 650 times per year in the United States. A sample: "Because each member of the [surgical] team may be focusing on his own role in a procedure, 'the No...
Florida Family Awarded $8M in Tobacco-Related Death Case
Posted on February 18, 2009Tort lawyers have been carefully watching the tobacco lawsuit against Phillip Morris which arose out of the death of 55-year old Stuart Hess. The Florida jury imposed liability several days ago and earlier today awarded $3M in compensatory damages and $5M in punitive damages...
Liability Insurance Rate Increases Coming?
Posted on February 17, 2009Liability insurance companies make money in two major ways. First, they make money on the insurance product - doing good underwriting, setting appropriate rates, and properly managing claims. Second, insurance companies make money holding today's premiums to pay tomorrow's claims (and claim expenses)...
Paul Does It Again
Posted on February 16, 2009Paul Luvera has another great post on his outstanding blog, Plaintiff Trial Lawyer Tips. A sample: "Focusing on the bad conduct of the defendant shifts the availability bias and causes the defendant to be the subject to the greater weight of scrutiny instead of plaintiff...
Sunday Spoof - The AMA's MFA Program
Posted on February 15, 2009It was almost three years ago, February 26, 2006, that this Sunday Spoof first appeared. In the last three years, I have added another daughter and a few pounds. But the effort of doctors to limit their responsibility for harm caused by their negligence continues, as does the fiction that doctors are leaving Tennessee because we don't have caps on damages...
Diagnosis of Appendicitis
Posted on February 13, 2009State Volunteer Mutual Insurance Company's Winter 2008-09 quarterly newsletter, Risk Points, has an interesting article discussing the diagnosis of appendicitis. This illness occurs in 250,000 people in the United States every year, and the mortality rate increases 500% if the appendix ruptures...
Vicarious Liability in Trucking Cases
Posted on February 12, 2009It is not uncommon for wrecks involving tractor-trailer rigs to result in serious injury and death. It is also not uncommon for there to be inadequate insurance coverage or other assets to make whole the victims of the trucker's negligent acts. Thus, it is not uncommon for lawyers who represent the victims of the these wrecks to look to the conduct of others to see what role they played in contributing to the wreck...
Auto Fatalities Decline
Posted on February 11, 2009The National Highway Traffic Safety Administration has reported that automobile accidents for the first 10 months of 2008 are down significantly when compared with the same period in 2007. Fatalities are down 10% to a total of 31,110 deaths in the first 10 months in the year...
Fear of HIV Lawsuit - Defendant Roberto Alomar
Posted on February 11, 2009CNN reports that Roberto Alomar has been sued in New York by his ex-girlfriend, who alleges that he exposed her to the HIV virus by engaging in unprotected sex with her while he was suffering from HIV/AIDS. She has tested negative for the disease...
Medicare Subrogation in Wrongful Death Cases
Posted on February 10, 2009From time to time I will see a question posted on the trial lawyers' listserve asking whether Medicare has a subrogation interest in wrongful death proceeds. The answer is "yes," and this opinion helps explain why. Tennessee wrongful death law permits the recovery of medical expenses incurred between the injury caused by negligence and the death...
Thought-Provoking Article
Posted on February 09, 2009Today's USA TODAY includes an interesting article titled "How much 'truth' is too much?" written by Rod Dreher. The article addresses the impact of the Roman Catholic Church's sex abuse sandal on the life of the author, who investigated and wrote about it...
More of "Ruining a Deposition"
Posted on February 06, 2009Here is Part 2 of Evan Shaeffer's post called "15 Ways to Ruin a Deposition." Evan writes "The Trial Practice Tips Weblog" and "The Legal Underground." Here is Part 1.
Lawyer Medical Malpractice Reports Due March 2
Posted on February 04, 2009The Tennessee Medical Malpractice Reporting Act found at Tenn. Code Ann. §§ 56-54-101, et seq. went into effect on January 1, 2009 and replaced statutes regarding similar previous reporting requirements. Bold the old and new statute require that lawyers report all medical malpractice settlements and judgments obtained in calender year 2008...
Invasion of Privacy - Wife vs. Husband
Posted on February 03, 2009Jeffrey surreptitiously installed video equipment in the bedroom of the marital home (where Jeffrey may or may not have been living, depending on whom one believed), including a motion sensing optical eye in the headboard of the bed and a camera concealed in an alarm clock...
Ruining a Deposition
Posted on February 02, 2009Evan Schaeffer at The Trial Practice Tips Weblog has started a three-part series titled "15 Ways to Ruin a Deposition." Here is his first post on the subject. The first tip? Deposing someone who doesn't need to be deposed at all.
Insurance Policies Limits Are Not Discoverable UPDATED
Posted on February 02, 2009The Tennessee Supreme Court has just ruled that liability insurance policy limits are not discoverable in typical personal injury and wrongful death cases in Tennessee. Unlike the vast majority of states, our TRCP 26 does not mandate disclosure of limits...
When Winning A Case Costs Your Client Money
Posted on January 29, 2009The goal of lawyers who represent plaintiffs in personal injury and wrongful death lawsuits is to help the client. But sometimes the receipt of proceeds from a lawsuit can actually cost your client money. How can that be? If your client is receiving Supplemental Security Income (SSI) and the settlement results in your client having more than $2000 in the bank your client loses his or her SSI payments...
Yet Another Opinion on the Law of Expert Testimony
Posted on January 29, 2009The Tennessee Supreme Court has issued another opinion about expert testimony, this one concerning the ability of a family practice doctor to testify about a criminal defendant's ability to form the required mental state to commit a crime. The Court ruled that the expert was qualified to give such an opinion and that it was error to exclude his testimony...
February 2009 Tennessee Trial Law Report
Posted on January 29, 2009The February 2009 edition of the Tennessee Trial Law Report is at the printer and will be mailed to subscribers in the next day or two. This edition includes a summary of 24 different cases addressing various aspects of the law of torts, civil procedure, evidence and trial as decided by Tennessee appellate courts between December 15 and January 15...
Rule Changes
Posted on January 27, 2009The Tennessee Supreme Court has adopted several changes to the rules of civil procedure, evidence and appellate procedure. By orders dated earlier this month, the Court adopted the recommendations of the Rules Commission about the changes that were necessary...
New Edition of Tennessee Law of Comparative Fault
Posted on January 23, 2009In 1997, five years after the adoption of comparative fault in Tennessee, Donald Capparella and I wrote a book called Tennessee Law of Comparative Fault.. Five years later our friend John Wood joined us for the second edition of the book, and West Publishing Company took over the printing and distribution of the book...
New Tennessee Supreme Court Opinion on Admissibility of Expert Testimony
Posted on January 23, 2009The Tennessee Supreme Court has just released an opinion reversing the ruling of a trial judge who excluded the testimony of a sleep expert in a criminal case. The defendant alleged that he did not have the criminal intent to commit sexual acts with his stepdaughter because he was asleep at the time and was not aware of what he was doing...
More From Paul Luvera
Posted on January 21, 2009I know that I have had several posts in the past few months that referenced the work of Paul Luvera, a highly-regarded plaintiff's lawyer from Seattle. Here is another one - this time on the subject of settlement forms. Why do I cite his work? Quite frankly, I will cite any good lawyer's work if I think it will be of interest to the readers of this blog...
New Book
Posted on January 20, 2009My friend Tom Vesper from Atlantic City, N.J. has had a new book published. It is called Uncle Anthony's Unabridged Analogies: Quotes and Proverbs for Lawyers and Lecturers. Tom is great storyteller and I am sure that his book reflects his wisdom, wit and style...
Off Topic - Bushisms
Posted on January 16, 2009Jack Weisberg kept up with George W. Bush's verbal slip-ups during the past 8 years. It was a full-time job. This article contain's Weisberg's list of the top 25 Bushisms. A sample: because of the rising cost of malpractice insurance, "[t]oo many OB/GYNs aren't able to practice their love with women all across the country...
Open Note to Airplane Crash Lawyers
Posted on January 16, 2009Please don't rush to New York and file a lawsuit over yesterday's crash. There is no reason to inject a lawsuit into the middle of the celebration over the wonderful outcome from what could have been a horrific tragedy. So, don't embarrass plaintiff's lawyers or the legal system by an immediate filing of suit...
NIED Claims
Posted on January 15, 2009The January 2009 edition of the Tennessee Bar Journal includes my quarterly column on tort law. This column is titled "NIED Claims after Flax and Eskin." For some reason, the online version of the article has some missing words and other problems, but it includes the important stuff.
Making Surgery Safer
Posted on January 15, 2009There is a great article in today's New York Times titled "Simple Checklist Makes Surgery Safer." An excerpt: "a year after surgical teams at eight hospitals adopted a 19-item checklist, the average patient death rate fell more than 40 percent and the rate of complications fell by about a third, the researchers reported...
Still More Statistics From the 2007-08 Annual Report of the Tennessee Judiciary
Posted on January 14, 2009I know - this is the third posting about the 2007-08 Annual Report of the Tennessee Judiciary. I can't help myself - I am fascinated by this kind of data. This falls in the "can you believe this" category? There were about the same number of DUI charges filed in circuits court in Tennessee last year as there were tort damage lawsuits (11,000)...
More Statistics From the 2007-08 Annual Report of the Tennessee Judiciary
Posted on January 13, 2009The 2007-08 Annual Report of the Tennessee Judiciary also has some interesting statistics on appeals. Here are some of the highlights: There were 793 Rule 11 applications filed during the fiscal year. ( A Rule 11 application is a request for the Tennessee Supreme Court to hear a discretionary appeal...
New Tennessee Trial Law Report Available
Posted on January 09, 2009Are you a subscriber to Tennessee Trial Law Report - Tort Law Edition? The January 2009 issue is now available. The January edition contains Part One of a three-part article on motions in limine as well as a listing of 29 cases currently pending before the Tennessee Supreme Court or the United States Supreme Court that are of interest to tort lawyers...
Annual Report of the Tennessee Judiciary
Posted on January 09, 2009The Tennessee Supreme Court has just released the 2007-08 “Annual Report of the Tennessee Judiciary.” It includes data for the 2007-08 fiscal year. Here is some of the information revealed in the report: There were 537 medical malpractice cases filed during the fiscal year...
Car Safety Data
Posted on January 07, 2009The Department of Transportation has a site dedicated to car safety. The site gives information about safety recalls, defect investigations, and early warning reports. Want to learn more? Go here.
Medicare Subrogation
Posted on January 05, 2009Plaintiff's lawyers: do you want to have the hell scared out of you? Read this article by Rick Swedloff on Medicare subrogation entitled "Can't Settle, Can't Sue: How Congress Stole Tort Remedies From Medicare Beneficiaries." The article appears in Volume 41...
Law Review Article on Police Chase Cases in the 6th Circuit
Posted on December 31, 2008Do you have a Sec. 1983 lawsuit for injuries to a bystander arising out of a police chase? Are you thinking about filing one? Are you defending one? If the answer to any of these questions is "Yes," I encourage you to read "When Innocent Parties Are Injured or Killed in High-Speed Pursuits, What Police Conduct Sufficiently Shocks the Conscience to Allow Recovery?" by Anna M...
Fee Caps - And the Harm to the Patient that Results
Posted on December 31, 2008There is a lot of talk about capping fees in medical malpractice cases. Fees are already capped, of course, at one-third of the recovery, but the health care industry wants further limitation on fees charged to plaintiffs in successful cases. Why? Because they're not stupid...
Practice Tip - Professional Services Sales Tax on Lawyers?
Posted on December 29, 2008From time to time over the years there has been talk about imposing a sales tax on professional services. One cannot help but wonder whether there will be an effort to impose such a tax to help solve the budget problem facing our state government...
Chamber of Commerce Lobbies for Protection from Lawsuits
Posted on December 25, 2008Here is the text an December 20, 2008 article on the CBS News website about the efforts of the U.S. Chamber of Commerce to take advantage of the opportunity created by the world's financial problem to seek legal protection for wrongdoers. Thanks to Suzanne Keith at TAJ who forwarded it to me...
The Politics of Fear in an Effort to Achieve Tort Reform
Posted on December 24, 2008Insurance companies know that they have little credibility in the fight over access to the courthouse. This is particularly true in the medical malpractice area, where the evidence in Tennessee demonstrates that (a) doctors and hospitals win over 96% of jury trials; (b) professional liability rates, adjusted for the medical inflation rate, have been more or less flat for over 20 years; (c) the average settlement is $256,100 (for calendar year 2007); and (d) $1,000,000 verdicts are extremely rare...
SCOTUS Rules for Plaintiffs in "Light" Cigarette Case
Posted on December 16, 2008The United States Supreme Court has ruled for the plaintiffs in a case involving an assertion of federal pre-emption in litigation involving whether selling "light" cigarettes was deceptive. As pointed out in this article in the New York Times, "[t]he question before the court was not whether use of the term “light” amounted to fraud...
Chamber of Commerce Wants to Preserve Right to File Suit
Posted on December 15, 2008That's right. The Chamber of Commerce believes in the right to file suit if you have been aggrieved by the conduct of another. As long as you are a car manufacturer and want to complain about new laws limiting greenhouse gas emission standards...
A Bad Day
Posted on December 13, 2008Professionally speaking, it is hard to have a worse day than having a United States Supreme Court justice say this: " “I simply cannot follow your argument because I believe you have just made a statement to me that is utterly irrational...
Preparing Clients for Events at Trial
Posted on December 12, 2008Ten days or so ago I included a post from Paul Luvera's blog about the importance of using checklists for taking the deposition of an eye witness. Here is another post from Paul. This time he is sharing a checklist on information you should share with your client about the trial process...
New Trucking Regulations Means Increased Public Safety
Posted on December 10, 2008The Federal Motor Carrier Safety Administration has issued an amend to its regulations to require interstate commercial driver’s license (CDL) holders subject to the physical qualification requirements of the agency's regulations to provide a current original or copy of their medical examiner’s certificates to their State Driver Licensing Agency (SDLA)...
Medical Malpractice Reporting Statute
Posted on December 08, 2008Many plaintiff's lawyers from across the state received assessments from the Department of Commerce and Insurance for failure to report data concerning medical malpractice settlements and judgments received during the prior year. Many of the penalities approach $20,000 and, as one lawyer told me, the penality he has been assessed is greater than the fee he received in the case...
Tennessee Trial Law Report
Posted on December 07, 2008Thank you to the hundreds of you who have said such kind words about our new newsletter, Tennessee Trial Law Report - Tort Law Edition. Brandon Bass and I have worked hard to put together a newsletter than will save you time and make you money. Our idea was to have one source where a tort lawyer could stay up-to-date with all of the case law in the field of torts, civil procedure, evidence and trial...
Luvera's Sample Talking Points for Trial
Posted on December 06, 2008Paul Luvera has offered-up a list of his talking points for trial, an example that can be applied to a myraid of cases. See them here.
The Case for a "Loser Pays" Rule
Posted on December 05, 2008The Manhattan Institute for Policy Research has issued a report extolling the virtues of a "loser pays" rule. Here is an excerpt from the "Executive Summary:" This study explores the likely effects of adopting a "loser pays" rule for attorneys' fees in the United States...
Eye Witness Deposition Checklist
Posted on December 03, 2008Paul Luvera's blog includes this great checklist for taking the deposition of an eye witness. Paul makes the point that "lawyers must use a checklist for every deposition they take no matter how experienced there are. If seasoned airplane pilots use checklists, lawyers should too...
Deciding Who To Depose
Posted on December 01, 2008Here are links to two interesting blog posts by Stewart Weltman in his "Lean and Mean Litigation Blog" on the subject of formulating a discovery plan before taking depositions. The knee-jerk response is depose everyone, but as this author makes crystal clear that is not always the smart thing to do...
IIHS Announces TOP SAFETY PICKS
Posted on November 26, 2008The Insurance Institute for HIghway Safety has announced its TOP SAFETY PICKS for 2009. The picks " recognize[ ] vehicles that do the best job of protecting people in front, side, and rear crashes based on good ratings in Institute tests. Winners also have to have electronic stability control (ESC), which research shows significantly reduces crash risk...
PDF Portfolio Webinar and Booklet
Posted on November 24, 2008A couple weeks ago I wrote a post about use of PDF Portfolios to organize documents. The source for that post has recently given us access to an eseminar that he did on creating electronic closing binders using PDF technology - either PDF Binder or PDF Portfolio...
Whoops! at NPR
Posted on November 23, 2008It has been revealed that Dr. Frederick K. Goodwin, host of NPR's "Infinite Mind," earned at least $1.3M from drug makers. He received the payments for giving lectures. NPR says it did not know about the payments, Goodwin says it did, but clearly the show's listeners did not...
2008 Medical Malpractice Report Released
Posted on November 19, 2008The Tennessee Department of Commerce and Insurance has released the 2008 Medical Malpractice Claims Report. The report reveals data from medical malpractice cases settled and tried in Tennessee in calendar year 2007. The numbers: Total judgments for plaintiffs 2004 6 2005 5 2006 6 2007 7 Total settlements 2004 444 2005 461 2006 453 2007 492 Cases Dismissed With No Payment 2004 1916 2005 2361 2006 2514 2007 2238 (plus another 306 claims dismissed on defense verdicts for a total of 2534) Total settlement $ 2004 $108,000,000 2005 $119,000,000 2006 $100,000,000 2007 $126, 225,485 (this includes two settlements made after trial, one pursuant to a high-low agreement and one a traditional post-trial settlement...
Duty Imposed on Anthrax Manufacturer
Posted on November 17, 2008The Florida Supeme Court has relied on the Restatement (Second) of Torts to impose a duty on the manufacturer of anthrax "to avoid a an unauthorized intercepton and dissemination of the materials." The lawsuit arose out of the mailing of stolen anthrax some seven years ago that resulted in the death of a man in Florida when he came into contact with the substance at his place of work...
Failure to Supplement Discovery
Posted on November 10, 2008Rule 37 of the TRCP makes exclusion of evidence the default sanction for failure to supplement. The trial judge can impose a lesser or greater sanction. In a recent case in Arkansas the Court of Appeals reversed a jury verdict in favor of the plaintiff when the plaintiff failed to supplement answers to interrogatories concerning his medical treatment with a particular doctor...
New Newsletter Available
Posted on November 08, 2008Brandon Bass and I are pleased to announce that the inaugural edition of Tennessee Trial Law Report - Tort Law Edition has been printed and mailed to Tennessee lawyers who we know practice tort law. Brandon and I resigned from our position as editors of the Tennessee Tort Law Letter and launched this new publication in an effort to better serve the needs of lawyers in the state that do tort work...
Great Trial Lawyer Series
Posted on November 07, 2008The Tennessee Bar Association has been kind enough to republish my "What it Takes to be a Great Trial Lawyer" series as the cover story in the November edition of the Tennessee Bar Journal. Click here to read the article.
Justice Programs - Chattanooga November 6 and 7
Posted on November 05, 2008The Fall travel schedule begins again. Many of you know that five years ago former Tennessee Supreme Court Justice Penny White, former Tennessee Court of Criminal Appeals Judge Joe Riley and I establsihed a seminar company called "Justice Programs...
"We're Number 2!"
Posted on November 04, 2008One repeated argument for restricting the right to trial by jury is that we need to have a state where businesses will want to settle, thereby creating more jobs and strengthening our economy. Well, to the extent that is a relevant factor in the tort deform effort it is should be off the table in Tennessee...
"A Handbook for Tennessee Tort Lawyers 2009" Available
Posted on November 02, 2008A Handbook for Tennessee Tort Lawyers 2009 is scheduled to arrive in Brentwood on November 3 and will start being shipped to purchasers on November 4. The 2009 of the book follows the same format as the 2008 version. It has been expanded to include 8 new chapters and 28 new sections on tort law subjects for a total of 262 sections...
Important Summary Judgment Case Released
Posted on November 01, 2008The Tennessee Supreme Court released its decision in Hannan v. Alltel Publishing Company and has affirmed Judge Susano's reversal of summary judgment in favor of the defendant. The court, by a 4-1 margin, re-affirmed its decisions in Byrd, McCarley and Blair and held a moving party who seeks to shift the burden of production to the nonmoving party who bears the burden of proof at trial must either: (1) affirmatively negate an essential element of the nonmoving party’s claim; or (2) show that the nonmoving party cannot prove an essential element of the claim at trial...
Is Exxon Mobil Considering a New Line of Business?
Posted on October 30, 2008There is alot of public outcry about the profits of Exxon Mobil for the 3rd quarter of fiscal year 2008. The company reported profits of $14.83 Billion for the three months ended September 30, a 58% increase. Exxon Mobil had revenue of $137.74 Billion during the 3rd quarter of 2008...
PDF Portfolios
Posted on October 29, 2008I have been doing some reading about Adobe Acrobat recently and came across this post about organizing documents using PDF Portfolios. I have not tried this method of document organization and, I confess, will probably ask one of our paralegals to look into it for our firm rather than attempting to do so myself...
"Hospital Compare" Website
Posted on October 28, 2008The U.S. Department of Heath and Human Services has a website that delivers information on how well hospitals care for patients with certain medical conditions or surgical procedures, and the results of a survey of patients about the quality of care the patients received during a recent hospital stay...
2008 Tennessee Medical Malpractice Claims Report Released
Posted on October 28, 2008The Tennessee Department of Commerce and Insurance has released the 2008 Medical Malpractice Claims Report. The report reveals data from medical malpractice cases settled and tried in Tennessee in calendar year 2007 The numbers: Total judgments for plaintiffs 2004 6 2005 5 2006 6 2007 7 Total settlements 2004 444 2005 461 2006 453 2007 492 Cases Dismissed With No Payment 2004 1916 2005 2361 2006 2514 2007 2238 (plus another 306 claims dismissed on defense verdicts for a total of 2534) Total settlement $ 2004 $108,000,000 2005 $119,000,000 2006 $100,000,000 2007 $126, 225,485 (this includes two settlements made after trial, one pursuant to a high-low agreement and one a traditional post-trial settlement...
Information on Doctors
Posted on October 27, 2008The Federation of State Medical Boards has a website that allows you to order professional information on physicians and physician assistants. The reports include infomoration about disciplinary sanctions, education, medical specialty, licensure history and locations...
Twombly - What it Means.
Posted on October 24, 2008Why should you care about the decision of the United States Supreme Court in Bell Atlantic Court v. Twombly , 127 S. Ct. 1955 (2007)? Because it changed the rules of pleading in federal court and, because Tennessee looks to interpretations of the federal rules to interpret its own similar rules, it will be raising its head in Tennessee state court...
FRE Rule 502 Becomes Law
Posted on October 22, 2008The Congress has approved changes to the Federal Rules of Evidence, including the addition of Rule 502 dealing with the waiver of attorney-client privilege and work product protection as a result of inadvertent or intentional disclosure to another party...
New Medical Negligence Certificate of Good Faith Form
Posted on October 20, 2008The Administrative Office of the Courts has released the form that must be filed by plaintiffs in medical negligence cases (and by defendants who allege fault of another health care provider). Both forms are available here. In general, a plaintiff must file the certificate within 90 days after filing suit...
Suit Against God Dismissed
Posted on October 17, 2008Associated Press has reported that Nebraska State Senator Ernie Chambers' lawsuit against God has been dismissed for lack of service of process. The suit sought a permanent injunction to prevent God from committing acts of violence such as tornadoes and earthquakes...
AAJ Issues Report About Federal Preemption
Posted on October 17, 2008Yesterday, AAJ released a new report on complete immunity preemption titled, Get Out of Jail Free: A Historical Perspective of How the Bush Administration Helps Corporations Escape Accountability. This report reveals how in a stealth effort coordinated at the highest levels of the Bush administration, federal agencies were repeatedly ordered to usurp state law and undermine consumer protections...
Race and Damages
Posted on October 15, 2008Here is a fascinating article from the New York Law Journal about an opinion by Judge Jack B. Weinstein objecting to a defendant's use of race-based statistics on life expectancy to reduce a damage award in a quadriplegia case.
A Comment About My SVMIC Post - And My Response
Posted on October 11, 2008Last week I wrote a post called “SVMIC Rate Increase – NOT.” The post explained that SVMIC had not raised its insurance rates for its owner-doctors in 2008. Read the entire post here. I then received this comment from Tom: What's wrong with making a profit? I am sure as a business owner that is your goal as well...
Lawyers Want Less Stress, More Personal Time. Big Surprise
Posted on October 10, 2008The folks at Robert Half Legal did a survey of 300 attorneys among the largest law firms and corporations in the United States and Canada. All respondents had at least three years of experience in the legal field. Apparently, lawyers were asked, “If you could change one aspect of your job as a lawyer, which one of the following would it be?” This article says the responses were as follows: Decreased job stress 31% Less hours at work or more personal time 30% Accelerated career growth 14% Greater professional autonomy 5% Increased on-the-job training 3% Higher salaries/compensation 2% Other 5% Nothing 8% Don't know 2% 100% One of Robert Half Legal's conclusions after reviewing the survey: "When it comes to retaining top legal talent, less stress and fewer hours on the job may matter more than compensation...
SVMIC Rate Increase - NOT
Posted on October 09, 2008Did you hear about the State Volunteer Mutual Insurance Company rate increase? No, you didn't - because it didn't happen. Typically the media gets a press release from SVMIC saying that insurance is increasing X% and we hear from the TMA that the world is coming to come to an end as a result of it...
E-Discovery Resource
Posted on October 06, 2008Kroll Ontrack has a searchable list of e-discovery cases from around the nation. To access the list, click here.
Electronic Data Recorders
Posted on September 30, 2008Here is an interesting article from Auto Week about new and improved (?) electronic data recorders. EDRs currently obtain data from airbags, yaw and stability sensors, antilock brakes, traction controllers, throttle controls and engine monitors. They initiate only when sensors indicate that a crash is imminent or has occurred...
A Handbook for Tennessee Tort Lawyers 2009
Posted on September 29, 2008A Handbook for Tennessee Tort Lawyers 2009 has been sent to the printer. The 2009 of the book follows the same format as the 2008 version. It has been expanded to include 28 new sections on tort law subjects for a total of 262 sections...
Deposition Questions
Posted on September 22, 2008The NITA Blog has a very good post entitled "21 Questions to Consider When Starting A Deposition." A sample: 7. Are you on any drugs or medications or alcohol that you think will interfere with your ability to answer my questions? 8. Is there anything else you are aware of that would keep you from giving full, complete, and accurate answers to the questions here today? 9...
Oregon Supreme Court Addresses Expert Testimony in Medical Malpractice Cases
Posted on September 22, 2008The Oregon Supreme Court has released a fascinating opinion on expert testimony. The Court stated that the Plaintiff experienced symptoms of pain, swelling, and discoloration in her left hand immediately after injection of a chemical called gadolinium; her pain and the discoloration have continued...
A Change at the Tennessee Tort Law Letter - And an Announcement
Posted on September 21, 2008After over 13 years,165 editions, and no less than 1500 printed pages, I have resigned from my position as the Editor of the Tennessee Tort Law Letter." The September 2008 edition, mailed a couple days ago, is my final edition...
Mississippi Supreme Court Discusses Certificates of Merit in Med Mal Suit
Posted on September 19, 2008The Mississippi Supreme Court accepted review of a case where the plaintiff failed to attach either an attorney’s certificate of consultation, or an expert disclosure in lieu of the certificate, as required by Mississippi Code Annotated Section 11-1-58 (Rev...
Ohio Supreme Court Addresses Value of Services
Posted on September 19, 2008I am Columbus, OH today speaking an Ohio Association for Justice seminar program. The hotel where I am staying is right down the street from the Ohio Supreme Court building. It is appropriate, then, that I write about a new opinion handed down by that court on the issue of damages that may be recovered by a spouse who took off time from work to care for a spouse injured by the negligence of another...
Themes for Product Cases
Posted on September 17, 2008Paul Luvera is a highly-regarded trial lawyer from Seattle. His blog has this great post on slogans (read: themes) for trying product liability cases for the plaintiff.
E-Discovery Research
Posted on September 15, 2008Do you have an e-discovery issue? Look to this database, which has over 1000 cases on the issue from state and federal courts, for assistance. Thanks to K&L Gates for compiling and maintaining this resource.
"Defending the Damages Only Case"
Posted on September 14, 2008Smart defense lawyers know that sometimes the best defense is to admit liabilitiy and talk about damages. This article - "Defending the Damages Only Case" - is written by Mercer Clark of Miami. It appeared in the Winter 2008 edition of the Federation of Defense & Corporate Counsel Quarterly...
Standard of Care for Prescribing Medication
Posted on September 12, 2008The Tennessee State Board of Medical Examiners has a policy about prescribing drugs. It applies to any prescription written for a patient, whether in person, electronically, or over the Internet. The policy includes the following: (1) Except as provided in paragraph (2), it shall be a prima facie violation of T...
Your PI Cases - The Government Has Its Hand Out
Posted on September 08, 2008We all know that Medicare and Tenncare has a subrogation right in PI and wrongful death cases, but new information being sought by Medicare has lead some lawyers to believe that Medicare will now be looking at case proceeds for payment of future medical bills...
Off Topic - Speech to Nowhere
Posted on September 06, 2008Written by Will Bunch, as found at www.philly.com. Palin's Speech to Nowhere Sarah Palin delivered a great speech tonight -- for her party, for John McCain, for herself, for what she set out to accomplish. This was America's first real glimpse at the Alaska governor, and what we saw was a boffo politician who speaks in a plaintive prairie voice that channels America's Heartland like a chilling breeze rippling a field of wheat, who knows how to tell a joke, how to bring down the house and bring a tear to a few eyes...
Insurance Coverage Litigation?
Posted on September 05, 2008In most states the duty to defend an insured in litigation is broader than the duty to indemnify that insured. Here is a 50-state survey prepared by the highly regarded Chicago-based firm of Hinshaw & Culbertson on the duty to defend. Here is how they describe the 105-page publication: Duty To Defend contains a survey of the law of the 50 United States and the District of Columbia on an insurer’s duty to defend a lawsuit against its insured and related topics...
"Your Plaintiff is a Scumbag"
Posted on September 03, 2008It is not uncommon for the defense in personal injury cases to attack the character of the plaintiff. It seems to me that young defense lawyers particularly enjoy doing this to uneducated, unsophisticated plaintiffs. The defense in a products case in California introduced evidence that the plaintiff had a mistress and was a bigamist...
"The Sun Made Me Do It!"
Posted on September 02, 2008A defendant is permitted to argue that the light from the setting sun hindered his vision and that he was not negligent in failing to see (and then striking) plaintiff's car. The Kansas Supreme Court rejected the argument of the plaintiff that the defendant was negligent as a matter of law...
File. Serve. Now.
Posted on August 27, 2008Tennessee Rule of Civil Procedure 4.01(3) provides as follows: If a plaintiff or counsel for plaintiff (including third-party plaintiffs) intentionally causes delay of prompt issuance of a summons or prompt service of a summons, filing of the complaint (or third-party complaint) is ineffective...
Court Says Plaintiff is Entitled to Have Her Deposition Videotaped
Posted on August 22, 2008A trial judge in New Jersey has ruled that a plaintiff may insist that her discovery deposition be videotaped over the objection of the defense. The judge ruled that "defense counsel’s objection is devoid of any specificity to constitute good cause...
Arbitration Agreements UPDATED
Posted on August 20, 2008Nursing homes continue to attempt to avoid trial by jury by requiring residents to sign arbitration ageements. And the Tennessee courts continue to insist that if nursing homes are going to do so they must follow the law. Here are two decisions that refuse to enforce arbitration provisions in nursing home contracts because they contracts were signed by a person other than the nursing home resident or appropriate representative: McKey and Ricketts...
2009 Edition of Handbook Available Shortly
Posted on August 19, 2008Day on Torts: A Handbook for Tennessee Tort Lawyers 2009 is almost ready to go to press. The 2009 edition will include reference to all of the Tennessee appellate cases on tort law released in the last year, add over 20 new statutes of interest to tort lawyers, and update rules of civil procedure, evidence, and appellate procedure...
TSC Releases NIED Case
Posted on August 18, 2008The Tennessee Supreme Court has released the opinion in Eskin v. Bartee and expanded the scope of recovery for negligent infliction of emotional distress. The bottom line: "we have determined that it is appropriate and fair to permit recovery of damages for the negligent infliction of emotional distress by plaintiffs who have a close personal relationship with an injured party and who arrive at the scene of the accident while the scene is in essentially the same condition it was in immediately after the accident...
2009 Justice Programs Schedule
Posted on August 17, 2008Many of you know that former Tennessee Supreme Court Justice Penny White, former Tennessee Court of Criminal Appeals Judge Joe Riley and I have a seminar company called "Justice Programs." We offer a 15 hour CLE program each Fall that permits attendees to meet all mandatory CLE obligations for the entire year and, more importantly, gives civil trial practioners the opportunity to gain valuable information for their practice...
A Res Ipsa Case to Remember
Posted on August 13, 2008Tennessee permits a plaintiff to rely on the res ipsa loquitor doctrine in medical negligence cases when appropriate under the facts. For the most recent Tennessee case on the issue see Flowers v. H.C.A. Health Care Services of Tennessee, Inc...
Try the Case? Or Settle the Case?
Posted on August 11, 2008The age old question: should I try it or accept the offer the defense has made? This article in the New York Times reports on an article that will appear in the September edition of the Journal of Empiral Legal Studies on the subject on settling cases...
SVMIC Claims Evaluation Document
Posted on August 08, 2008How does SVMIC evaluate claims? Here is what they tell their insureds.
Notice Requirement in Slip and Fall Cases
Posted on August 07, 2008In slip and fall cases in Tennessee, one must either prove that the defendant created the condition or knew or should have known about the condition. The latter may be proved by showing a pattern of conduct, a re-occurring incident, or a general or continuing condition indicating the dangerous condition's existence...
SVMIC Speaks on Effect of New Malpractice Legislation on Rates
Posted on August 05, 2008SVMIC's position on how the new statute making it more difficult to sue physicians will impact what doctors pay for medical malpractice insurance: "Regarding the effect of this reform on your professional liability insurance, it will be difficult to quantify what, if any, rate changes are a direct result of the reform...
Back (Again)
Posted on August 04, 2008Ok - I know I have not been posting lately. I spent 8 days in Canada fishing and returned on Saturday night. I am now back to work and will be back on a normal blogging pattern this week. Thanks for coming back to the site.
A New Attack on the Contigious State and Locality Rule?
Posted on July 28, 2008The Arizona Court of Appeals has ruled unconstitutional a state statute that imposed certain requirements on expert witnesses in medical malpractice cases. The statute required that experts be board certified in the same specialty as the defendant and mandated that the expert have practiced (or taught) that same specialty for the year prior to their testimony...
Flax Opinion Released
Posted on July 24, 2008The Tennessee Supreme Court has released the opinion in Flax. Stated briefly, the Court affirmed the dismissal of the NIED claim and re-instated the remitted punitive damages for the wrongful death claim. For the first time in my memory, the TSC released 4 opinions on the case...
Sexual Misconduct Claims Against Therapists
Posted on July 22, 2008Did you know that Tennessee has a specific statute addressing sex abuse claims against therapists? The "Therapist Sexual Misconduct Victims Compensation Act" is set forth in T.C.A. Sec. 29-26-201 et seq. A "therapist" is defined as "any person who performs therapy regardless of whether the person is licensed by the state...
SVMIC Files 2007 Annual Report
Posted on June 27, 2008State Volunteer Mutual Insurance Company , the doctor-owned medical malpractice insurance carrier, continues to enjoy profitability, according to my review of its 2007 Annual Report that was recently filed with the Tennessee Department of Commerce and Insurance...
Tort Law Tibit - Negligence Per Se
Posted on June 25, 2008What is the name of the case that tells us that violation of a statute is negligence per se? Cook By and Through Uithoven v. Spinnaker's of Rivergate, 878 S.W.2d 934, 937 (Tenn. 1994). What about the violation of a regulation? Long by Cotton v. Brookside Manor, 885 S...
Tennessee Ranked #1 - Business Litigation Climate
Posted on June 23, 2008Tortsprof Blog has been kind enough to let us know that Directorship has released its second annual Boardroom Guide to State Litigation Climates. According to the Guide: Directorship’s Best and Worst States for Business The 10 Best 1. Tennessee 2...
Poll About Juries
Posted on June 20, 2008Harris Interactive conducted a online poll about jury service in December 2007. The findings include the following: * "Two-thirds (65%) of Americans have been called to serve jury duty, two-thirds of that (68%) actually attended, leaving one-third (32%) who did not...
Thong Lawsuit
Posted on June 19, 2008As a 51 year old man happily married to a beautiful, intelligent 37 year old woman, I confess I don't spend a lot of time thinking about thongs. I also confess that it never crossed my mind that a person wearing a thong could ever suffer a personal injury from the thong...
Tennessee Supreme Court on TRCP Rule 35
Posted on June 18, 2008The Tennessee Supreme Court has issued an opinion interpreting Rule 35 of the Tennessee Rules of Civil Procedure.Rule 35 is the rule the permits a party to have a physician of the party's choice examine the adverse party. Unfortunately, it is often referred to as an independent medical examination, and indeed the opinion mistakenly refers to it as such...
Tennessee Adopts Interstate Deposition Act
Posted on June 16, 2008Governor Bredesen has signed the "Uniform Interstate Depositions and Discovery Act" into law. The Act is effective for discovery requests after July 1, 2008. The legislation establishes a procedure for litigants in other states to do discovery in Tennessee...
Paralegal Fees Are Recoverable
Posted on June 13, 2008The United States Supreme Court has ruled that a successful plaintiff may recover paralegal fees in a case against the government covered by the Equal Access to Justice Act.Although not binding on Tennessee courts in those limited cases where attorneys' fees are recoverable, the result can be used as support for the general notion that paralegals perform valuable services in litigation and therefore should be given fair consideration in fee awards...
Prior Suit Pending Doctrine
Posted on June 11, 2008The Tennessee Supreme Court has released an opinion that settles (and changes) the law on the "prior suit pending" doctrine. The issue rises infrequently in tort cases, but is still worthy of note.In Tennessee a worker's compensation lawsuit cannot be filed until after a benefit review conference (BRC) does not result in resolution of the case...
Local Rules
Posted on June 09, 2008The website of the Tennessee Administrative Office of the Courts maintains a set of all of the Local Rules for the state's circuit and chancery courts. View.The site makes it clear that the AOC only posts what it has been given, so it would be prudent to check with the local clerk's office and get a current set of the rules if you do not normally practice in the venue.
Whoops
Posted on June 05, 2008Grandstaff v. Bowman, No. E2007-00135-COA-R3-CV, (Tenn. Ct. App. May 29, 2008), is a case that reminds careful readers of the perils of filing a personal injury case on the eve of the statute and then simply sitting on it. As a result of this conduct, the plaintiff lost the opportunity to add a corporate defendant who employed the individual defendant at the time of the car wreck...
What It Takes To Be A Great Trial Lawyer - Part 20
Posted on May 30, 2008Closing ThoughtsAs I said in my first post on this subject, a great trial lawyer need not have all of the attributes set forth in this series of posts. Admittedly, the "great trial lawyer" hurdle has been set high. Very high...
Free Electronic Newsletter - The Jury Expert
Posted on May 29, 2008Thanks to Trial Ad Notes for telling me about the American Society of Trial Consultants website and, more importantly, about their electronic newsletter, The Jury Expert. The newsletter is published bimonthly. A subscription is free...
What It Takes To Be A Great Trial Lawyer - Part 19
Posted on May 27, 2008The Knowledge That You Are Only as Good as Your Next Verdict.I stole this idea from a friend in Atlanta who told me about it over a decade ago. While I disagree with the notion some might take from this statement (that a lawyer has to win or has done a poor job), I wholeheartedly agree with what I know was intended by the statement: great trial lawyers do not rest on their laurels...
Book Updated
Posted on May 26, 2008Day on Torts: A Handbook for Tennessee Tort Lawyers 2008 has been updated. The "Free Updates" section of the book now includes as Tennessee tort law decisions through the week beginning May 19, 2008. To learn more about the book, go to www...
What It Takes To Be A Great Trial Lawyer - Part 18
Posted on May 23, 2008LuckWhat is the role of luck in the development of a great trial lawyer? Well, professionally it often begins with having the right mentor early in one's career. This is largely, but not completely, luck, because most students come out of law school (a) not understanding the significance of having a good mentor and (b) not having the skills to identify who would be a good mentor...
Amendments To Rules of Evidence, Civil Procedure and Appellate Procedure
Posted on May 21, 2008The General Assembly has ratified changes to the Tennessee Rules of Evidence, Civil Procedure, and Appellate Procedure.Here is the Order setting forth the rules changes for the TRE, TRCP, and TRAP.The most significant change for tort law practitioners is the change to TRCP 59...
Back From D.C.
Posted on May 20, 2008I have been in Washington, D.C. since Sunday attending the 85th Annual Meeting of the American Law Institute. Thanks to Howard Vogel, Judge Cissy Daughtrey, Chief Justice Mickey Barker, Bill Wagner, and Lucian Pera I was elected to membership in the ALI in the Fall of 2006...
Lawsuit Against Expert Survives Appeal
Posted on May 19, 2008The Paces, through their lawyer, hired Dr. Swerdlow to testify in a wrongful death case they filed on behalf of their daughter. Allegedly, Dr. Swerdlow changed his testimony on the eve of trial and caused the court to dismiss their case.The Paces sued their former expert, alleging that he lied about his credentials, was ill-prepared and changed his testimony because he was concerned that his peers would think badly of him...
What It Takes To Be A Great Trial Lawyer - Part 17
Posted on May 19, 2008The Willingness and Ability To Delegate.It is not impossible to be a great trial lawyer on your own, with no help from anyone. But I don't know one.At a minimum a great trial lawyer needs an extremely competent secretary, one who can think for the lawyer and keep that plates spinning when the lawyer is otherwise occupied...
"I'm Sorry" Avoids Lawsuits
Posted on May 18, 2008A story that is of no surprise to anyone who knows anything about human beings ... except a decreasing number of doctors and hospitals.
Book Update
Posted on May 17, 2008Day on Torts: A Handbook for Tennessee Tort Lawyers 2008 has been updated. The "Updates" section of the book's website, www.dayontortsbook.com, now includes all new torts decisions through Friday, May 1, 2008.I estimate that the book has been update by at least 75 cases in the past 9 months...
Appellate Argument Tips
Posted on May 16, 2008This article by Judge Richard Posner (7th Circuit Court of Appeals) does a fine job discussing appellate briefs and oral arguments.A sample:"The second biggest mistake that appellate advocates make—after exaggerating how much the judges know about or are willing to devote time to learning about a given appeal—is to think that they can win by rubbing the judges’ noses in the precedents...
What It Takes To Be A Great Trial Lawyer - Part 16
Posted on May 14, 2008An Appreciation for the Discretion Vested in the Trial JudgeTrial judges are human. Each of them have certain strengths and weaknesses. Some may not have been at the top of their class in law school but know how to preside over the trial of a lawsuit...
Are the Results of Med Mal Trials Accurate?
Posted on May 12, 2008Here is an interesting post from Torts Prof Blog:"After all the time and money spent, aren’t the results of medical malpractice litigation extremely accurate? Although perhaps better than earlier studies indicated, malpractice results are imprecise...
Part 18 What It Takes To Be A Great Lawyer - Part 15
Posted on May 09, 2008An Understanding of the Human Condition and What It Takes to Motivate Jurors to ActionYou can't try jury cases if you don't understand how people think. I am not talking about how the way other members of the club think. Nor am I talking about the thought processes or values of the people you see at every disease ball...
What It Takes To Be A Great Lawyer - Part 15
Posted on May 09, 2008An Understanding of the Human Condition and What It Takes to Motivate Jurors to ActionYou can't try jury cases if you don't understand how people think. I am not talking about how the way other members of the club think. Nor am I talking about the thought processes or values of the people you see at every disease ball...
Court Decides Apparent Agency Cases Concerning Hospital-Based Physicians
Posted on May 07, 2008The Tennessee Supreme Court issued its first two tort law opinions of the year yesterday, both dealing with the same subject: the potential liability of a hospital for the acts of a non-employed,, hospital-based physician. The Court said that"to hold a hospital vicariously liable for the negligent or wrongful acts of an independent contractor physician, a plaintiff must show that (1) the hospital held itself out to the public as providing medical services; (2) the plaintiff looked to the hospital rather than to the individual physician to perform those services; and (3) the patient accepted those services in the reasonable belief that the services were provided by the hospital or a hospital employee...
Medical Malpractice Notice and Certificate of Merit Bill Sent to Governor
Posted on May 06, 2008The Speaker of the House signed a bill yesterday that makes it more difficult for patients to bring medical malpractice actions. The Senate Speaker signed the legislation last week and therefore the bill is on its way to the Governor.The legislation requires that a patient give at least 60 days notice to the defendants before filing a medical malpractice lawsuit...
What It Takes To Be A Great Trial Lawyer - Part 14
Posted on April 30, 2008A Healthy Respect for the Judicial SystemGreat trial lawyers have a healthy respect for the judicial system and, if they are jury trial lawyers, for the right to trial by jury and the jury system. They demonstrate that respect in the way they speak and act around lawyers and non-lawyers...
Chamber of Commerce - Lawsuit Climate 2008
Posted on April 25, 2008The Chamber of Commerce does an annual ranking of the "lawsuit climate" in the fifty states. The winning state - Deleware - has the most pro-business climate. The losing state - West Virginia - has the most anti-business climate...
What It Takes To Be A Great Trial Lawyer - Part 13
Posted on April 23, 2008A Passion for the WorkIt is hard to be a great trial lawyer if you don't like what you do. Most people can quickly determine whether a lawyer – or the cashier at McDonald's – has a passion for the job. You can see that passion in the face of a great trial lawyer, you can hear it in her voice, you can feel it in his writing...
Indiana Applies Res Ipsa Doctrine in Fire Case
Posted on April 21, 2008Indiana is not known as a particularly progressive state when it comes to tort law (or anything else for that matter).But not even Indiana could deny a plaintiff the use of the res ipsa doctrine when the plaintiff caught on fire during surgery.You read that right...
New Study: Rollovers and Roof Cruch
Posted on April 18, 2008Vehicle rollovers result in a significant number of fatalities every year, and there has been a vigorous debate about the roll that roof strength plays in those deaths. Now, a new study from the Insurance Institute for HIghtway Safety reveals that stronger roofs would save lives...
What It Takes To Be A Great Trial Lawyer - Part 12
Posted on April 16, 2008The ability and willingness to undertake (and share with the client) a cost-benefit analyis throughout the litigation. Things change in litigation. For example, as mentioned in a least one previous post in this series, almost every deposition changes the value of a case...
Controversial Malingering Test
Posted on April 14, 2008One of my favorite publications, Lawyers USA, has an interesing article about a new test which allegedly determines whether a personal injury plaintiff is malingering. It is called the "Fake Bad Scale."The article says that "[a] leading critic of the test, Dr...
Medicare Deaths
Posted on April 11, 2008"From 2004 through 2006, patient safety errors resulted in 238,337 potentially preventable deaths of U.S. Medicare patients and cost the Medicare program $8.8 billion, according to the fifth annual Patient Safety in American Hospitals Study."So begins this article found on the MSN website...
What It Takes To Be A Great Trial Lawyer - Part 11
Posted on April 09, 2008The Courage to Tell The Client the Truth Many clients don't want the truth. A number of them want re-assurance that they are "right," regardless of the reality of the situation. Others demand to know that, at the end of the day, they will prevail...
Important Comparative Fault Case to Be Argued in May
Posted on April 07, 2008The Tennessee Supreme Court has announced that it is going to hear oral argument in a very important case on Wednesday, May 7th, 11:00 a.m. in Knoxville. The case is Tennie Martin et al. v. Norfolk Southern Railway Co. et al. (Franks, author) (Susano, dissenting) - E2006-01021-SC-R11-CV...
Evidence Article
Posted on March 28, 2008Regular readers know that one web site I frequent is that of the Federation of Defense and Corporate Counsel. Its "Hot Cases" section frequently has cases from other jurisdictions that I find interesting and its quarterly magazine has articles I enjoy reading...
Nursing Home Relief Act Pulled By Industry After Release of Tort Report
Posted on March 26, 2008Tennessee ranks 12th of the 50 states on the U.S. Tort Liability Index. The list measures the tort climate from the standpoint of the business and insurance community, so a rank of "1" is a pro-business, pro-insurance company state and a rank of "50" is that dark, dreary place inhabited by anti-gun, anti-life, pro-child pornography, tree-hugging communists who serve of juries (hereinafter referred to as "liberals")...
Use of Demonstrative Aids At Trial-Revisted
Posted on March 24, 2008Did you know that there was a statute that permits you to use demonstrative aids during closing argument (and probably during opening statement as well)? Here is a statute for your trial notebook.T.C.A. Sec. 20-9-303 permits a lawyer "to use a blackboard, models or similar devices, also any picture, plat or exhibit introduced in evidence, in connection with his argument to the jury for the purpose of illustrating his contentions with respect to the issues which are to be decided by the jury...
Case Selection
Posted on March 21, 2008I have written on the subject of case selection on this blog in the past. Here is a link to an article on the subject that I had published recently in Trial magazine. (Available only to AAJ members). I gave a speech on this subject recently in Memphis and generally received excellent reviews...
South Carolina Opens Door to Negligent Hiring Claim
Posted on March 19, 2008The South Carolina Supreme Court has ruled that a defendant employer may not avoid a claim for negligent hiring, training, supervision, or entrustment by simply agreeing that it is vicariously liable for the actions of its employee.In James v. Kelly Trucking Company, the Court said that just because a company is vicariously liable for acts of an employee does not mean that it cannot be liable for its own negligence...
State Found Liable For Beating on UT Campus
Posted on March 18, 2008The Tennessee Court of Appeals has affirmed an en banc ruling of the Tennessee Claims Commission and ruled that the the State was liable for damages suffered by a college student as a result of being beaten after she left a parking garage on the University of Tennessee campus...
Back from Trial
Posted on March 13, 2008It's over.Rebecca Blair and I have been in trial in Columbia, Tennessee since February 25, 2008. Our client was a eleven year-old boy who lost his 34 year-old mother to hyperkalemia (an excessive level of potassium which causes the heart to stop) a little over three years ago...
2007 Counsel for Claimants Reports
Posted on March 13, 2008To those of you who had a medical malpractice judgment or settlement in 2007: Please remember that the 2007 "Counsel for Claimants" reports must be completed and sent to the Tennessee Dept of Commerce and Insurance on or before April 1, 2008...
Short Break Update
Posted on March 12, 2008Well, it has been a longer break than I planned. The trial started on February 25 and went to the jury shortly before lunch yesterday, March 11. The jury actually started deliberations at about 12:45 and is returning to the courthouse for further deliberations today at 8:00 a...
Short Break
Posted on February 20, 2008This blog started three years ago this week. There have been 1175 posts totaling millions of words made to it. In the process I have learned in a great deal and I sincerely hope that this blog has helped you represent your clients. I am taking a break for a couple weeks...
Expert Witness Article
Posted on February 18, 2008The Federation of Defense and Corporate Counsel has a magazine called the FDCC Quarterly. There are some good articles in the publication, and I think many of you would enjoy an article in the Spring 2007 magazine called "Scientific and Other Expert Testimony: Understand It; Keep It Out; Get It In...
New Products Liability Decision Released
Posted on February 15, 2008The Tennessee Court of Appeals (Middle Section) has released an opinion in a products liability case. As I have before, such decisions are few and far between and we can learn from everyone of them.This decision is particularly important because it was authored by Judge (now Justice) Bill Koch...
What It Takes To Be A Great Trial Lawyer - Part 8
Posted on February 13, 2008Great Trial Lawyers Understand the Importance of Depositions Great trial lawyers understand the value of depositions, and whether the deposition is taken personally or the task is delegated to another, go into a deposition with clearly defined goals determined after adequate preparation...
Off Topic - Rain on a Tin Roof
Posted on February 12, 2008We live in a log cabin in the woods in Williamson County. This morning we are blessed with a strong rain - weather that we haven't seen much of in the last year.Other than frequent sightings of deer and turkeys, one of the joys of living here is the sound of rain pelting the tin roof...
"Other Similar Incident" Evidence
Posted on February 08, 2008There are relatively few products liability cases filed in Tennessee, very few actually tried, and even less appealed.So, when a products case hits the appellate courts, we all learn. And when evidence issues are discussed in a product liability opinion there is cause for absolute jubilation...
Tort Law Tidbit
Posted on February 06, 2008This is an unusual tort law tidbit directly only at lawyers for plaintiffs. If you are not interested in reading a rant, I suggest you move to a different site now.If you represent plaintiffs in tort cases you need to be a member of the Tennessee Association for Justice, a contributor to its Circle of Advocates, and a contributor to Lawyers Involved For Tennessee, a PAC for lawyers interested in preserving the civil justice system...
What It Takes to Be A Great Trial Lawyer - Part 7
Posted on February 04, 2008Great Trial Lawyers Learn the Facts. I was in a deposition several months ago in a case that involves an intersection wreck. There are several different plaintiffs represented by several different lawyers, several defendants, and counsel for a UM carrier...
The "What It Takes to be a Great Trial Lawyer" Series
Posted on January 31, 2008Here are the opening paragraphs of my December 15, 2007 post that gave rise to a series of posts that has garnered a good deal of attention:I participated in a panel discussion at for the Young Lawyers Division of the Tennessee Bar Association on Friday and was asked this question: what does it take to be a great litigator? I knew in advance that I would be asked that question and gave the matter a good deal of thought driving from Atlanta to Nashville Friday morning...
Lose the Evidence - Lose the Case
Posted on January 30, 2008The Tennessee Court of Appeals (Middle Section) has ruled that "trial court has the discretion to sanction a party by dismissal of its case where the party’s destruction of evidence severely prejudices an adverse party’s defense irrespective of whether the destruction was inadvertent or intentional...
Off Topic - Sentencing Criminals in Federal Court
Posted on January 29, 2008A federal judge has written a "Top Ten" list taking issue with the United States Supreme Court opinions on the sentencing of criminal defendants. Read it here.
The State of the State Address
Posted on January 29, 2008Governor Bredesen gave his State of the State address last night . He did not say that he had any desire to limit the right to trial by jury for any citizen against any defendant in any industry.This comment scares the nursing homes: "My job is to open more doors to alternatives here in Tennessee...
What It Takes To Be A Great Trial Lawyer - Part 6
Posted on January 28, 20086. Great Trial Lawyers Don’t Cheat There are lots of opportunities to cheat in the practice of law. You can withhold information during the discovery process. You can improperly coach a witness or client. You can knowingly violate orders on motions in limine...
Appellate Forms - And More
Posted on January 25, 2008Did you that our appellate courts had forms to help guide you through the appellate court process?This page at the Administrative Office of the Courts website has various forms relevant at different stages of the appellate process, inlcuding a sample brief cover page, a motion for extension of time, etc...
Videotaping of Rule 35 Exams
Posted on January 23, 2008The Oklahoma Supreme Court has ruled that a plaintiff has a right to videotape a Rule 35 examination (often mistakenly referred to as an "independent medical exam"). The Court's conclusion:"Our decision to allow an examinee to videotape a court-ordered independent examination was foreshadowed by our decision in McCullough v...
Pushing Pills for Profit
Posted on January 22, 2008This study in PLoS Medicine reports that, based on estimates from publicly available data, drug manufacturers probably spend more money on advertising than they do for research and development. In the words of the study: "From this new estimate, it appears that pharmaceutical companies spend almost twice as much on promotion as they do on R&D...
What It Takes To Be A Great Trial Lawyer - Part 5
Posted on January 21, 20085. A Great Trial Lawyer Maintains A Reasonable Caseload In Part 4 we discussed the fact that great trial lawyers take time to think about their cases. And we mentioned that many lawyer argue that they don’t have time to think. I suggest that there are only four possible reasons why lawyers don’t have time to think...
Op-Ed Published
Posted on January 18, 2008The Tennessean has been kind enough to print an op-ed piece I wrote and to editorialize against the health care industry's attempt to avoid full responsibility for the harm it causes to its patients.Read the editorial here.Read my op-ed piece here...
Article on T.C.A. Sec. 20-1-119
Posted on January 18, 2008The United States Court of Appeals for the Sixth Circuit released a decision several months ago that presents a real danger for plaintiff's lawyers and their clients who seek to rely on T.C.A. Section 20-1-119 to avoid a statute of limitations defense...
Tennessee Board of Professional Responsibility
Posted on January 17, 2008The Tennessee Board of Professional Responsibility has a website that includes a section that allows you to search ethics opinions by key word. Of course, it also has a complete set of the displinary rules.
Surgical Errors
Posted on January 16, 2008The November 2007 Annals of Surgery has an interesting article on surgical errors. The abstract of the article says that the authors "analyzed 444 randomly sampled surgical malpractice claims from four liability insurers. Among 258 claims in which injuries due to error were detected, 52% (n = 133) involved technical errors...
Are Doctors Fleeing Tennessee? The Facts
Posted on January 15, 2008We are hearing it again this year: doctors are leaving the state because we don't have caps on damages in medical malpractice cases. When pressed for evidence on this point, a doctor will refer to "some guy in Memphis" or "some woman in Knoxville" who quit practicing medicine because of the risk of being sued...
Fax Filing of Affidavit Not Sufficient
Posted on January 14, 2008The Eastern Section of our Court of Appeals has ruled that Rule 5A(4)(c) of the Tennessee Rules of Civil Procedure means what it says and that a party cannot fax file an affidavit opposing a motion for summary judgment .Rule 5A (4)(c) says that “The following documents shall not be filed in the trial court by facsimile transmission: ...
Book Updated
Posted on January 13, 2008Day on Torts: A Handbook for Tennessee Tort Lawyers 2008 has been updated to include all cases through Sunday, January 13, 2008.The updates work like this. After you have found the leading case summarized in one of 233 sections of the book, go to the "Free Updates" page of the book website, scroll down to the relevant section, and you will any decision released since October 1, 2007 on that subject...
Tort Cases By The Numbers - Part 2
Posted on January 12, 2008Yesterday I wrote about tort statistics revealed by the 2006-07 "Annual Report of the Tennessee Judiciary." Among the statistics I cited was that there were 584 medical malpractices cases filed in the state of Tennessee and a total of 15 medical malpractice trials...
Tennessee Tort Cases By the Numbers
Posted on January 11, 2008The Tennessee Supreme Court has just released the 2006-07 “Annual Report of the Tennessee Judiciary.” It has some amazing, indeed alarming, information. There were 584 medical malpractice cases filed in Tennessee last year. To put that in perspective, there were 10,165 general “Damages/Torts” cases filed...
What It Takes to Be A Great Trial Lawyer - Part 4
Posted on January 10, 2008A Great Trial Lawyer Takes Time to Think It is easy to get lost in the daily grind of litigation. The phone constantly rings. The computer’s “ding” tells us that another email has arrived. Each piece of mail brings another task and another deadline...
Check A Little Later
Posted on January 09, 2008I have an early morning meeting and won't be able to post until closer to Noon. Check back later for another in the Great Lawyer series.
Evidence of Settlement
Posted on January 07, 2008T.C.A. Sec. 29-11-105 (b) says as follows: "No evidence of a release or covenant not to sue received by another tort-feasor or payment therefor may be introduced by a defendant at the trial of an action by a claimant for injury or wrongful death, but may be introduced upon motion after judgment to reduce a judgment by the amount stipulated by the release or the covenant or by the amount of the consideration paid for it, whichever is greater...
What It Takes To Be A Great Trial Lawyer - Part 3
Posted on January 04, 2008A Solid Knowledge of the Rules of Civil Procedure. The adoption and expansion of the discovery section in the modern-day rules of civil procedure was intended to reduce the number of trials by providing a mechanism for the flow of information between parties to litigation...
Better Looks = More Money? For Lawyers?
Posted on January 03, 2008The Economist reports about a new study that links physical appearance and income.The article says that " a series of surveys in the United States and Canada [show] that when all other things are taken into account, ugly people earn less than average incomes, while beautiful people earn more than the average...
Savings Statute for Dismissed Federal Court Actions
Posted on January 03, 2008T.C.A. Sec. 28-1-115 gives a plaintiff who is bounced out of federal courts for lack of jurisdiction one year from the dismissal to re-file the action in state court.Here is the exact text of the statute: "Notwithstanding any applicable statute of limitation to the contrary, any party filing an action in a federal court that is subsequently dismissed for lack of jurisdiction shall have one (1) year from the date of such dismissal to timely file such action in an appropriate state court...
Off Topic - The Bush Administration's Dumbest Legal Arguments of the Year
Posted on January 01, 2008Dahlia Lithwick at Slate has selected the Bush Administration's Dumbest Legal Arguments of the Year. The list stopped at ten arguments; the writer was obviously working with a severe space limitation.Here is an excerpt from the article: The United States does not torture...
LImit on Number of New Trials
Posted on January 01, 2008Did you know a litigant is limited to no more than two "new trials" in any action?The relevant statute is T.C.A. Sec. 27-2-101. Here it is:"Not more than two (2) new trials shall be granted to the same party in an action at law, or upon the trial by jury of an issue of fact in equity...
Damages Cap Denies Doctor Claim for his Mother's Death
Posted on December 29, 2007Here is an interesting article from the LA Times that discusses the cost of caps.
What It Takes To Be A Great Trial Lawyer - Part 2
Posted on December 28, 20072. A Solid Knowledge of the Law of Evidence.You have to know the facts. But mere knowledge of facts doesn't do your client much good. You have to know how to get those facts before a factfinder. In other words, you need to understand the law of evidence...
What It Takes To Be A Great Trial Lawyer - Part 9
Posted on January 01, 1970The Ability to Pull the TriggerTrial lawyers a required to make a large number of decisions. Some are minor (e.g. do I ask this interrogatory in this case?) and some are major (e.g. should I settle with one of multiple defendants in a case in which several liability applies?)...
ABA Civil Trial Standards
Posted on December 31, 1969The American Bar Association has released four additions to its "Civil Trial Standards." The new standards addresss these topics: Use of Tutorials to Assist the Court, Summary Exhibits and Witnesses, Organizing the Complex Case for Trial, and Judicial Involvement with Settlement...
What It Takes To Be A Great Trial Lawyer - Part 10
Posted on December 31, 1969The Ability to Organize Great trial lawyers spin plates. Lots of plates. (Those of you who do not remember "The Ed Sullivan Show" may not appreciate this metaphor. Learn about it here.) Law firm management requires time. Training of associates and others requires time...
My Grandmothers Birthday
Posted on December 31, 1969On March 24, 2006 I wrote about the death of my grandmother, Milda Heath, at the age of 97. Today is her 100th birthday. She was a wonderful grandmother, mother, teacher and citizen. I miss her.
Tennessee Nursing Homes Rank At the Bottom
Posted on December 31, 1969According to the Tennessean. Tennessee nursing homes rank No. 48 (beating only Louisiana and Georgia), according to new survey information out from the Centers for Medicare and Medicaid Services. Less than 7% of the nursing homes in Tennessee were rated above average...
Summary of New FRE 402
Posted on December 31, 1969Here is a summary of FRE 502 which came into effect on September 18, 2009. The rule - which addresses the attorney client privilege and work product doctrine - is intended to provide increased clarity in this confusing area of the law. The author explains that "[t]he rule establishes a presumption against subject matter waiver, resolve the issue of inadvertent disclosure, provides for confidentiality orders and supports party agreements, among other issues...
Will Budget Cuts Hurt Our Judiciary (And Tennesseans)?
Posted on December 31, 1969The state's law libraries are closing their doors to lawyers and other citizens. The Administrative Office of the Courts is cutting programs and staff. Appellate court law clerks are fearing the loss of their jobs. Tennessee budget problems are hitting the judiciary and it remains to be seen what impact the financial cuts have on civil jury trials...
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