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Day on Torts 

Covering the Law of Torts by the author of Tennessee Law of Comparative Fault.
Post Frequency: 9.4/day Last Entry: April 01, 2011 at 07:00:00 Recent Entries: 844
By John A. Day
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Rule Change in State Court - Service of Pleadings and Papers By Electronic Mail
Posted on March 22, 2010Effective July 1, 2010 a party to a litigation may serve papers in Adobe PDF format via electronic mail to the attorney's email address. The process is a little more cumbersome than it need be, but it is a step-forward toward increasing the efficiency of law practice and reducing cost...
Georgia Supreme Court Strikes Down Damages Cap in Medical Malpractice Cases
Posted on March 22, 2010The Georgia Supreme Court has struck down a cap on noneconomic damages in medical malpractice cases, declaring the cap to be a violation of the right to trial by jury. The case is Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, NO...
"Tennessee Jury Verdict Reporter" Statistics - Part 2
Posted on March 18, 2010As I mentioned in last Tuesday's post, Shannon Ragland of the Tennessee Jury Verdict Reporter has graciously agreed to permit me to share some of the information he has gathered concerning jury trials in Tennessee. This multi-part series will discuss some of the data contained in Shannon's 359-page report...
Motions To Strike Insufficient Affirmative Defenses
Posted on March 17, 2010I have had several lawyers ask me to post our most recent work in the area of filing motions to strike insufficient affirmative defenses in comparative fault cases. I have been filing these motions since 1992. A defendant has an obligation to follow Rule 8...
Form Protective Order For Use in Products Liability Case
Posted on March 15, 2010Tim Edwards of Memphis has kindly shared a protective order in a products liability case.
More Proof that the Big Lie is a Big Lie: Medical Malpractice Payments Continue to Fall
Posted on March 12, 2010The following comes to us from an article written by Chelsey Ledue, Associate Editor of Healthcare Finance News: Fewer medical malpractice payments were made on behalf of doctors in 2009 than any year on record, according to the National Practitioner Data Bank...
SCOTUS Will Hear Vaccine Case
Posted on March 11, 2010The United States Supreme Court has decided to hear Bruesewitz v. Wyeth, a case where the Bruesewitz family says there should be legal recourse beyond the administrative process set up by the National Childhood Vaccine Injury Act. The minor plaintiff suffered seizures two hours after receiving her six-month DPT vaccine in 1992...
Helpful Checklist for Determining Whether A Person is an Independent Contractor or an Employee
Posted on March 10, 2010I received an unsolicited (but not unwanted) email from the Baker Donelson law firm titled "20 Ways Your Independent Contractor Might Be an Employee." The purpose of the email was to warn recipients about ongoing IRS employment tax audits in general and the worker classification issue (are workers employees or independent contractors) in particular...
CA Court Says Witness Interviews Not Privileged Work Product
Posted on March 09, 2010The March 8, 2010 edition of the Daily Recorder reports that a divided California appellate court has ruled that witness statements recorded or taken in writing by attorneys or their representatives aren't privileged work product and, therefore, are open to discovery...
"Tennessee Jury Verdict Reporter" Statistics - Part 1
Posted on March 09, 2010Shannon Ragdale of the Tennessee Jury Verdict Reporter has graciously agreed to permit me to share some of the information he has gathered concerning jury trials in Tennessee. It is fair to say that Shannon has the most comprehensive collection of jury verdict information in the state...
The Rule of Completeness
Posted on March 07, 2010http://federalevidence.com/blog/2010/february/partys-burden-invoking-rule-completeness-under-fre-106
Death of Howard Twiggs, Trial Lawyer
Posted on March 06, 2010Former ATLA President Howard Twiggs has died. Funeral services are today. Howard has been a friend for over 25 years and was a leader in the plaintiff's trial bar and his community. I first met Howard at a NCATL seminar in Chapel Hill, NC when I was still a law student...
The Tort Reform Movement - Naked
Posted on March 05, 2010I read Andrew Cohen's article in the Atlantic (Tort Reform is Anti-Democratic (And Ingeniously Marketed)) and thought I would summarize it for your convenience. Then I discovered that Philip Thomas had already done so, and quickly determined that he did a better job than I would have done...
Online Accident Reports
Posted on March 04, 2010Getting motor vehicle accident reports is a hassle, but is appears that it will be getting easier. BuyCrash.com makes accident reports from Georgia, Indiana, and Kentucky available for purchase over the Internet. Accident reports from Tennessee will be available in the future...
Younger's 10 Commandments of Cross Examination
Posted on March 03, 2010Some of you are a little young to remember Irving Younger, the great trial advocacy teacher. Professor Younger developed the "10 Commandments of Cross Examination" that were taught in trial advocacy programs across the country for many, many years...
Lawyer Speaks Out About Allstate Insurance Company
Posted on March 02, 2010Trey Mills is angry at Allstate. He explains why on his South Carolina Injury Law Journal blog.
Tips for Managing Witnesses
Posted on March 01, 2010Winning Trial Advocacy Tips is one of the best blogs for trial lawyers in the entire blogosphere. Elliott Wilcox repeatedly delivers useful, timely information of interest to those of us who try cases. I encourage you to add it to your regular reading list...
Patient Rights and Health Care Reform
Posted on February 25, 2010Will the President sacrifice the rights of patients injured by medical malpractice to get Republicans to sign-off on a health care bill? Steven Olsen explains why the President should not in this article titled "Why Shouldn't Obama Throw Injured Patients Under the Bus to Get Heath Reform? Ask Steven Olsen...
New Decision on Diversity Jurisdiction
Posted on February 24, 2010What is the principle place of business for a corporation for purposes of determining whether a federal court has diversity jurisdiction under 42 U.S.C. Sec. 1332(c)(1)? Well, what you thought you knew is no longer the law. The United States Supreme Court ruled yesterday that the phrase "principal place of business' is best read asreferring to the place where a corporation's officers direct, control, and coordinate the corporation's activities...
Secret Settlements Seminar
Posted on February 23, 2010The American Association for Justice is hosting a teleseminar on March 16, 2010 on the ethics of secrets settlements. Get more information here.
Hospital Acquired Infections in the News
Posted on February 23, 2010Two common conditions caused by hospital-acquired infections (HAIs) killed 48,000 people and ramped up health care costs by $8.1 billion in 2006 alone, according to a study released yesterday in the Archives of Internal Medicine. Here is an excerpt from a summary of the study as reported at www...
Tennessee Personal Injury Client Advice
Posted on February 22, 2010The Springfield Injury Law Blog has given us a great post titled "8 Ways to Help Your Personal Injury Lawyer Help Your Case." Obviously, the post informs personal injury clients how they can help their lawyer obtain a better result in their case...
Federal Rules of Evidence PDF
Posted on February 18, 2010The Federal Evidence Review has shared a PDF of the current federal rules of evidence. Only 40 pages in length (20 pages if you print on the front and the back of the page) this PDF is a handy addition to your trial notebook for cases in federal court.
Product Manufacturer Cannot Use Release Against Consumer
Posted on February 15, 2010This is an interesting decision out of Colorado. Executive Tans operated an upright tanning booth manufactured by Sun Ergoline. Before using the booth, Savannah Boles signed a release form provided by Executive Tans that said as follows: 'I have read the instructions for proper use of the tanning facilities and do so at my own risk and hereby release the owners, operators, franchiser, or manufacturers, from any damage or harm that I might incur due to use of the facilities...
2009 Medical Malpractice Claims Reports Due March 1, 2010
Posted on February 15, 2010The Tennessee Department of Commerce and Insurance has released the forms for reporting on medical malpractice claims for the 2009 calendar year. The reports are due March 1, 2010. Here are the instructions for filling out forms as a representative of the claimant...
How Much Do ER Patients Pay to Protect Themselves from Malpractice of ER Doctors? You Won't Believe It.
Posted on February 12, 2010Team Health Holdings, Inc. is a physician-founded, physician-led outsourced healthcare professionals staffing organizations. Based in Knoxville, TN, it purports to be "the largest providers of [Emergency Department] staffing and management services in the United States, based upon patient visits and revenue...
Suggested Jury Instructions to Warn Jurors About Accessing the Internet and Social Media
Posted on February 10, 2010The Blog of Legal Times advises that the Committee on Court Administration and Case Management of the United States Judicial Conference has developed pattern jury instructions "to address the increasing incidence of juror use of such devices as cellular telephones or computers to conduct research on the Internet or communicate with others about cases,' as explained by Judge Julie Robinson, committee chair, in a memo to district judges...
Tennessee Jury Trials in Tort Cases by the Numbers
Posted on February 09, 2010How many tort cases are tried in Tennessee in the last year? The Annual Report of the Tennessee Judiciary gives us the answer. Here is the data for the year ended June 30, 2009: Total jury trials in all tort cases: 260 Total number of medical malpractice trials: 26 Total jury trials in the larger counties: Shelby: 48 Davidson: 65 Knox: 40 Hamilton: 23 Anderson: 8 Rutherford: 8 Sumner: 7 Washington: 6 Sullivan: 6 Hamblen: 6 Coffee: 5 Putnam: 4 Wilson: 4 The discussion of the "vanishing trial" is a reality...
Kentucky Lawyers Sued By Client
Posted on February 08, 2010A plaintiff in a car accident lawsuit has become a legal malpractice plaintiff. Sharon Langford has sued a law firm with office in Kentucky and Florida and made some very serious allegations. Basically, she was alleged to seek health care for her injuries from a specific provider and that there was a business relationship between the provider and the lawyers...
Tennessee Nursing Homes - 5th Worst in United States
Posted on February 04, 2010Tennessee's nursing homes rank the 5th worst in the United States, according to an analysis done by the Tennessean. The February 3, 2010 article points out that [a]bout 15,000 nursing homes nationwide got ratings of one to five stars, with five being the best, from the U...
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