Personal Injury Law

2009 Justice Programs Schedule

Posted on August 17, 2008
Many 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, 2008
Tennessee 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, 2008
The 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, 2008
How does SVMIC evaluate claims?   Here is what they tell their insureds.

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Notice Requirement in Slip and Fall Cases

Posted on August 07, 2008
In 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, 2008
SVMIC'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, 2008
Ok - 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, 2008
The 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, 2008
The 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, 2008
Did 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, 2008
State 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, 2008
 What 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, 2008
Tortsprof 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, 2008
Harris 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, 2008
As 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, 2008
The 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...

From My Father's Day Card - My Daughter Kate

Posted on June 16, 2008

Tennessee Adopts Interstate Deposition Act

Posted on June 16, 2008
Governor 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, 2008
The 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, 2008
The 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, 2008
The 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, 2008
Grandstaff 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, 2008
Closing 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, 2008
Thanks 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, 2008
The 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, 2008
Day 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, 2008
LuckWhat 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, 2008
The 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, 2008
I 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, 2008
The 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...

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